U.S. v. Ortiz

• Decision Date: 03 May 2006
• Docket Number: No. 05-1718.,05-1718.
• Citation: 447 F.3d 28
• Parties: UNITED STATES of America, Appellee, v. Diego ORTIZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

447 F.3d 28

UNITED STATES of America, Appellee, v. Diego ORTIZ, Defendant, Appellant.

No. 05-1718.

United States Court of Appeals, First Circuit.

Heard March 9, 2006.

Decided May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Jeanne M. Kempthorne, by Appointment of the Court, for appellant.

David G. Tobin, Assistant U.S. Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before HOWARD, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Appellant Diego Ortiz claims that he unknowingly got caught up in a drug deal when he agreed to drive an acquaintance around town for a few hours. He was indicted along with his passenger and a third individual, but was tried alone after the other two entered pleas. A jury found Ortiz guilty on one count of conspiracy and one count of possession, both with the intent to distribute more than five kilograms of cocaine. See 21 U.S.C. §§ 846, 841(a)(1). On appeal, he challenges the sufficiency of the evidence and also claims that the prosecutor's improper closing argument severely prejudiced his case. He further asserts that the district court erred in imposing a ten-year mandatory term of imprisonment. We affirm both his conviction and his sentence.

I. Background

The facts presented at trial, taken in the light most favorable to the prosecution's case, are as follows. See United States v. Llinas, 373 F.3d 26, 28 (1st Cir.2004).

In the mid-afternoon of February 13, 2004, an undercover Massachusetts State Trooper, Jaime Collazo, and a cooperating witness, Raphael Tejeda, met in East Boston with Victor Sosa, the target of an investigation by the Drug Enforcement Administration (DEA), to discuss a purchase of five kilograms of cocaine. Sosa, who had sold Collazo 100 grams of heroin two weeks earlier, said the cocaine transaction would have to wait until later in the day, when he could get the drugs from his friend.

Sosa remained in regular telephone contact with Collazo and Tejeda, and they eventually arranged to meet up again at a Kentucky Fried Chicken in Everett, Massachusetts. In the interim, appellant Ortiz had become Sosa's driver,¹ and the phone calls from Sosa to Collazo after 5:30 p.m. were made on Ortiz's cell phone. Sosa told Collazo that his phone had run out of minutes. Neither Collazo nor the cooperating source, Tejeda, had encountered Ortiz in prior dealings with Sosa.

At about 6:30 p.m., Sosa and Ortiz, traveling in Ortiz's car, drove up beside the car in which Collazo and Tejeda were waiting in the Kentucky Fried Chicken parking lot, and then Ortiz pulled back out and drove away with Collazo and Tejeda following. At some point, Collazo called Sosa and asked him to stop so they could talk. Both cars pulled over, and Sosa got out of Ortiz's car to speak with Collazo, out of Ortiz's hearing. Although the plan they devised called for Collazo and Tejeda to follow Sosa to his apartment, Collazo became concerned about a possible ambush and stopped following after a while.

Two phone calls between the cars, in which the parties discussed whether and how to consummate the deal, then occurred. Only the undercover agents' end of the conversation was recorded, so no voice identification could be made of the individual who was speaking. Although the defense and prosecution agree that the calls were made using Ortiz's phone, their debate is whether Ortiz participated in either conversation. Collazo testified that it was not Sosa in either instance; Collazo knew his voice and had had multiple telephone conversations with him earlier in the day. Collazo's testimony led inevitably to an inference that Ortiz had been on the phone discussing resumption of the drug deal. Ortiz testified, however, that he never conversed with Collazo. Moreover, he argues that the evidence shows that Tejeda, who did not testify, received the first of the two pertinent calls — undermining Collazo's testimony about that call. In addition, he asserts that the taped content of the second call, in which Collazo refers to meeting at "your house," makes it implausible that Collazo was talking to Ortiz, given that the plan had been to rendezvous at Sosa's house.

Ultimately, the parties agreed to meet at a Stop & Shop. According to the plan, Collazo would arrive alone and would call Tejeda to bring the money once he saw the cocaine. Sosa and Ortiz arrived after Collazo, and Ortiz parked his car trunk-to-trunk beside Collazo's. Ortiz remained in the driver's seat while Sosa and Collazo met between the trunks of the two vehicles. Collazo noticed another man, later identified as co-defendant Alex Perez, sitting in a third car that was parked parallel to Ortiz's. When Sosa tapped on Ortiz's trunk, Ortiz popped it open using a latch inside the car. Sosa showed Collazo the cocaine, which was in a blue gym bag, and Collazo then alerted waiting law enforcement agents to arrest Sosa and the other two men.

As police officers and agents converged on the parking lot, Ortiz drove off. A few minutes later, he ran away from the car, leaving it unparked and rolling. With a state trooper's siren sounding, the officers, some shouting "police," pursued, apprehended and arrested him. Ortiz stated, "What happened? What happened? I'm a United States citizen," and also told the arresting officers he was "just the driver. The other guy was doing the deal."

At the police station, after waiving his Miranda rights, Ortiz was asked if he knew what Sosa did for a living. Detective Joseph Gallarelli testified that Ortiz replied, sarcastically, "Officer, please." Later in the interrogation, Ortiz said that he did not know Sosa's profession and did not know Perez. He admitted that he let Sosa use his cell phone and that he had given rides to Sosa before. He also told Gallarelli that he had given rides in the past to others he believed were drug dealers.

An inventory search of Ortiz's car turned up small amounts of marijuana and cocaine in the glove compartment, which Ortiz admitted were his. The blue bag that had been in the car's trunk contained 5.02 kilograms of cocaine.

Testifying in his own defense, Ortiz admitted seeing Sosa put the blue gym bag in his trunk but said he never saw the contents and did not know what was in it. He explained that he fled the Stop & Shop parking lot because he was frightened and initially neither heard the police siren nor saw the "DEA" or "Boston Police" labels on the officers' jackets. He said that he had agreed to drive Sosa around because he was not working at the time and had nothing to do. He acknowledged answering the phone once while driving Sosa around and said that he told the caller to hold on and then handed the phone to Sosa.

In rebuttal, the prosecution introduced the testimony of Perez, who described bringing the cocaine to Sosa's apartment. He corroborated Ortiz's testimony that they did not know each other and that Ortiz was not in the room when Perez gave Sosa the cocaine. Perez assisted the government's case, however, by testifying that he neither used Sosa's or Ortiz's cell phones on the day of the arrest nor spoke with Collazo or Tejeda that day, reinforcing the inference that Ortiz's was the unfamiliar voice Collazo heard on the phone.

At the end of the government's case-in-chief and again at the end of the trial, Ortiz moved for judgment of acquittal, arguing that the evidence was insufficient to prove his knowing participation in either the conspiracy or possession. The court reserved its ruling and ultimately allowed the jury's verdict to stand. On appeal, Ortiz again argues that the evidence was insufficient to support conviction, and he contends that the prosecutor's flawed closing argument unfairly impacted the jury's deliberations. He also challenges the sentence imposed. We begin by discussing the sufficiency of the evidence, saving the details of the closing argument and sentencing claims for our discussion of those issues in Sections III and IV.

II. Sufficiency of the Evidence

When a judge expressly reserves decision on a motion for acquittal under Fed.R.Crim.P. 29(a), "it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R.Crim.P. 29(b); see United States v. Moran, 312 F.3d 480, 487-88 (1st Cir.2002). Our review, which is de novo, is similarly limited. Id.; United States v. Finn, 375 F.3d 1033, 1037, 1039 (10th Cir.2004); United States v. Wahl, 290 F.3d 370, 374-75 (D.C.Cir.2002). We therefore consider only the evidence presented in the government's case-in-chief to assess whether "`a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime,'" Moran, 312 F.3d at 487 (quoting United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994)).

In so doing, we take all inferences in the light most favorable to the verdict, we give equal weight to both direct and circumstantial evidence, and we neither weigh witness credibility nor require the prosecution to "`eliminat[e] every possible theory consistent with the defendant's innocence,'" United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir.2001) (citation omitted). See also United States v. Hatch, 434 F.3d 1, 4 (1st Cir.2006); United States v. O'Shea, 426 F.3d 475, 479 (1st Cir.2005). "[A]s long as the guilty verdict finds support in a `plausible rendition of the record,' it must stand." Moran, 312 F.3d at 487 (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)).

It is a rare appellant who can mount a successful sufficiency attack in the face of these principles, see O'Shea, 426 F.3d at 479, and Ortiz has not managed to so distinguish himself. While he raises intelligent challenges to multiple pieces of evidence, he is unable to offset the tilt in favor of the jury's judgment. Cumulatively, as we shall describe, the evidence and the inferences reasonably drawn from it allowed the jury to find him guilty on...