U.S. v. Ortiz

• Decision Date: 11 February 1994
• Docket Number: No. 93-1350,93-1350
• Parties: UNITED STATES, Appellee, v. Frederick Fermin ORTIZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

23 F.3d 21

UNITED STATES, Appellee, v. Frederick Fermin ORTIZ, Defendant, Appellant.

No. 93-1350.

United States Court of Appeals, First Circuit.

Heard Feb. 11, 1994.

Decided May 5, 1994.

Barry P. Wilson, Boston, MA, for appellant.

Geoffrey E. Hobart, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., and R.

Bradford Bailey, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal, defendant-appellant Frederick Fermin Ortiz challenges, on a variety of grounds, his convictions and sentence for conspiracy to possess cocaine with intent to distribute and for possession of cocaine with intent to distribute. After carefully considering defendant's arguments, we affirm.

I. BACKGROUND AND PRIOR PROCEEDINGS

As is always the case when considering a criminal defendant's challenge to his/her conviction, we interpret the record in a light most amenable to the government. See, e.g., United States v. Ortiz, 966 F.2d 707, 710 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993).

On February 4, 1992, several federal and local law enforcement agents, acting in response to a tip from a reliable informant, were conducting surveillance of a single-family house located at 25 Glen Ellen Road in Lowell, Massachusetts. These agents observed defendant, along with codefendants Walter DeJesus Zapata ("Zapata") and William DeJesus Escobar-Vegara ("Escobar") ¹ (and several other individuals), moving casually in and around this house and its garage. A Ford Taurus was parked in the garage with its hood and doors open. Although the agents at one point saw Zapata and Escobar enter the Taurus and begin tugging at the vehicle's back seat, at no time did they see anyone actually doing any work under the car's hood.

At approximately 2:00 p.m., a second vehicle occupied by two unidentified males pulled into the driveway. A group of individuals including defendant, Escobar, and Zapata approached the vehicle's passenger side (with Escobar in the lead). Escobar then engaged the passenger of the vehicle in conversation. After several minutes of conversation, the unidentified passenger handed Escobar a key, which Escobar placed into his pocket.

Shortly thereafter, defendant, Escobar, and Zapata entered a blue station wagon parked in front of the house and drove away. Defendant was the driver. One of the surveilling agents followed this vehicle to a condominium located at 77 Acton Road in Lowell, and took up a second surveillance position about twenty yards from the condominium's entrance. From this position, he observed Escobar use a key to unlock the front door. All three men then proceeded inside.

Several minutes later, the surveilling agent observed defendant exit the same front door, approach the blue station wagon, remove a child safety restraint seat from the wagon, and carry it over to a blue Monte Carlo parked in the condominium's driveway. He unlocked the car door, placed the child's seat into the back seat, and then reentered 77 Acton Road.

A few moments later, defendant and Zapata again exited the condominium. Each man was carrying a large, black travel bag which appeared heavy to the surveilling agent. They opened the trunk of the Monte Carlo, placed the two bags inside, closed the trunk, and reentered the condominium. A few minutes later, Zapata exited the residence, entered the Monte Carlo, and drove away. Subsequently, Zapata was approached by law enforcement officials at a rest area off Route 128 in Newton, Massachusetts, and was asked for permission to search the Monte Carlo. Zapata consented to the search, which revealed that the two black bags he and defendant had placed into the trunk contained 25 kilograms of cocaine. Zapata then was placed under arrest. ² An arresting officer testified that one of the two black bags was unzipped 4-6 inches at the time of Later that same day, search warrants were executed at both 25 Glen Ellen Road and 77 Acton Road. The search of 77 Acton Road turned up a variety of drug paraphernalia (none of which was in plain view), drug packaging (all of which was found in the garbage), and an electric bill for the premises in the name of Thomas Alvarez. It turned out that the blue station wagon defendant drove from 25 Glen Ellen Road to 77 Acton Road also was registered to the same Thomas Alvarez.

the consensual search, and that, through this 4-6 inch opening, he could plainly see brown and yellow taped bundles which, in his experience, typically are used to package kilogram quantities of cocaine.

At the time the search warrant was executed, Escobar was found watching television at 77 Acton Road, but defendant was not present at that location. Defendant eventually was arrested at 25 Glen Ellen Road. Immediately after his arrest, defendant told the police that he was a cleaner, and that he lived on Beacon Street in Lawrence, Massachusetts. Later, however, during booking, he stated that he was a mechanic and lived on Haverhill Street in Lawrence. At the time of his arrest, defendant did not have any engine grease or oil on his hands.

On February 26, 1992, a grand jury returned a two-count indictment charging defendant, Escobar, and Zapata with (1) conspiring to possess with intent distribute, and (2) possessing with intent to distribute (as well as aiding and abetting the possession of) five or more kilograms of cocaine. See 21 U.S.C. Secs. 846, 841(a)(1); see also 18 U.S.C. Sec. 2. Trial commenced on October 19, 1992. On October 22, 1992, at the conclusion of the government's case, the district court granted Escobar's motion for judgment of acquittal made pursuant to Fed.R.Crim.P. 29(a); however, it denied a similar motion made by defendant. On October 26, 1992, the jury returned guilty verdicts against defendant and Zapata as to both counts of the indictment. On March 16, 1993, the district court imposed the mandatory minimum 120-month incarcerative sentence prescribed by statute. See 21 U.S.C. Sec. 841(b)(1)(A)(ii).

II. DISCUSSION

On appeal, defendant argues that (1) there was insufficient evidence to support his convictions; (2) prosecutorial misconduct during closing argument deprived him of a fair trial; (3) he was victimized by constitutionally ineffective assistance of counsel; (4) evidence discovered after the trial should have entitled him to a new trial; and (5) the indictment should have been dismissed because he was not tried within the period prescribed by the Speedy Trial Act. Defendant also takes issue with the district court's method of determining drug quantity at his sentencing. We discuss each argument in turn.

A. Sufficiency of the Evidence

Defendant's primary and central argument is that there was insufficient evidence to support his convictions. The argument is not without force, as the evidence against him was far from overwhelming. Moreover, it is made with considerable skill and energy by defendant's appellate counsel. Ultimately, however, we are not persuaded that any error took place.

In assessing whether there was sufficient evidence to sustain a conviction, we examine the record in a light most favorable to the government, drawing all reasonable inferences in its favor, with an eye towards whether the proof would have allowed a rational jury to determine beyond a reasonable doubt that the defendant was guilty of the crime charged. See, e.g., Ortiz, 966 F.2d at 711. "In this analysis, no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction." Id. Indeed, the government "may prove its entire case through the use of circumstantial evidence." United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir.1993).

Two other points should be borne in mind. First, the government "need not exclude every reasonable hypothesis of innocence." Id. And second, "juries are not required to examine the evidence in isolation, for 'individual pieces of evidence, insufficient in themselves to prove a point, may in culmination Here, we think it apparent that the sufficiency issue reduces into a rather straightforward inquiry: Could a rational jury have found beyond a reasonable doubt that defendant knew that the black bag he transported from 77 Acton Road to the trunk of the blue Monte Carlo contained cocaine? After all, if defendant had this knowledge, we think it self-evident from the quantity of cocaine defendant possessed, see United States v. Echevarri, 982 F.2d 675, 678 (1st Cir.1993) (intent to distribute can be inferred from the quantity of the controlled substances possessed), from defendant's undisputed possession of the cocaine while he transported it from the condominium to the Monte Carlo, and from the " 'development and collocation of [other] circumstances' " apparent in the record, see United States v. Lopez, 944 F.2d 33, 39 (1st Cir.1991) (quoting United States v. Sanchez, 917 F.2d 607, 610 (1st Cir.1990), cert. denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991)), ³ that defendant and Zapata (and others unknown to the grand jury) had at least a tacit agreement to possess the cocaine with an intent to distribute it, see United States v. Fisher, 3 F.3d 456, 462 n. 18 (1st Cir.1993) (noting elements of crimes charged in the instant indictment).

prove it.' " Ortiz, 966 F.2d at 711 (quoting Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987)).

We conclude that the circumstantial evidence in this case compels an affirmative answer to this question. Defendant was among a small group of individuals presented with a key to a condominium where millions of dollars worth of cocaine was being stored. This suggests that the persons who leased or owned the condominium (and who, it may fairly be inferred, had knowledge of its contents) trusted defendant enough to allow him to be present at the...