U.S. v. Ortiz, 01-13961 Non-Argument Calendar.
| Decision Date | 14 January 2003 |
| Docket Number | No. 01-13961 Non-Argument Calendar.,01-13961 Non-Argument Calendar. |
| Citation | 318 F.3d 1030 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raul Anthony ORTIZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Steven Louis Beauvais, Zipperer & Lorberbaum, P.C., Savannah, GA, for Defendant-Appellant.
Amy Lee Copeland, Savannah, GA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before BLACK, HULL and MARCUS, Circuit Judges.
Defendant-Appellant Raul Anthony Ortiz ("Ortiz") appeals his firearms-related convictions and 33-month sentence. Ortiz challenges the sufficiency of the evidence as to seven of his nine firearms-related convictions and makes an Apprendi challenge to his sentence. After review, we affirm as to Ortiz's convictions and sentence.
A nine-count indictment charged Ortiz with (1) making false statements to a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(a)(6) (Counts 1 through 7); (2) dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Count 8); and (3) transporting firearms in interstate commerce with intent to engage in dealing in firearms without a license, in violation of 18 U.S.C. § 924(b) (Count 9). The jury convicted Ortiz on all nine counts.
On appeal, Ortiz does not challenge his convictions in counts 8 and 9. Instead, Ortiz challenges only his convictions under counts 1 through 7. As to those seven counts, Ortiz argues that the government did not prove beyond a reasonable doubt that he made false statements to a federal firearms dealer. Thus, we outline in detail the trial evidence as to those seven counts.
At the time of his offenses, Ortiz was a private in the U.S. Army, stationed at Fort Stewart, Georgia. Ortiz legally could purchase firearms in the State of Georgia for himself. Ortiz made a total of seven sales transactions with two pawn shops in Hinesville, Georgia, resulting in his aggregate purchase of seventeen pistols. Prior to each purchase, he completed an ATF Form 4473, answering "yes" to question 9a: "Are you the actual buyer of the firearm indicated on this form?" The question continues: Important Notice 1 warns that "[a]ny individual who is not buying the firearm for himself or herself or as a gift, but who completes the form, violates the law."
On the following dates, Ortiz purchased the listed firearms and completed ATF Forms 4473, as described above, which forms were kept on file at the relevant pawn shop:
Mr. Cash Pawnshop
August 1, 2000: Intratec, model AB-10, 9 MM pistol, SN A051098
August 23, 2000: Hi-Point, model C9MM, 9MM pistol, SN P065627
October 3, 2000: Hi-Point, model C9MM, 9MM pistol, SN P065541
Hi-Point, model CF380, .380 caliber pistol, SN P741351
Hi-Point, model CF380, .380 caliber pistol, SN P741305
October 13, 2000: Hi-Point, model CF380, .380 caliber pistol, SN P741355
Hi-Point, model CF380, .380 caliber pistol, SN P741306
Hi-Point, model JC40, .40 caliber pistol, SN 112014
Hi-Point, model JC40, .40 caliber pistol, SN 112013
Super Pawn July 28, 2000: Lorcin, model L380, .380 caliber pistol, SN 445386
Lorcin, model L380, .380 caliber pistol, SN 552608
October 3, 2000: Jennings, model Jennings Nine, 9MM pistol, SN 13046098
Intratec, model AB-10, 9MM pistol, SN A054690
October 13, 2000: Lorcin, model L380,.380 caliber pistol, SN 549756
Lorcin, model L380, .380 caliber pistol, SN 556690
Lorcin, model L380, .380 caliber pistol, SN 556693
Lorcin, model L380, .380 caliber pistol, SN 556691
When an unlicensed person purchases two or more pistols and/or revolvers within a five-business day period, the licensed firearms dealer (a) must complete an ATF Form 3310.4 with information about the purchaser and the firearms sold and (b) submit it to the National Tracing Center and State or local authorities, as provided on the form.
Upon receiving the ATF Forms 3310.4 reporting multiple gun sales to Ortiz, the Bureau of Alcohol, Tobacco and Firearms ("ATF") had suspicions as to whether Ortiz was reselling the firearms due to the large quantity of pistols purchased, the purchase of multiples of the same model of pistol, and the fact that the pistol models purchased were low cost. (The ATF indicated that low cost guns are often sold at a much higher cost and thus allow for a greater profit upon resale.) In addition, Georgia is considered a "source area" due to the ease with which handguns may be purchased. Because Ortiz was an army soldier, the ATF notified Fort Stewart about its suspicions and requested assistance. The U.S. Army Criminal Investigation Division ("CID") informed the ATF that Ortiz had not registered any firearms, despite a requirement that soldiers who reside on post are required to register any weapons in their possession. The CID obtained a search warrant from a military magistrate.
On November 14, 2000, CID Agent Hickey and ATF Special Agent Louis Valoze conducted a warrant-based search of Ortiz's quarters and found no firearms. The search produced sales receipts, one dated August 23, 2000, and three dated October 13, 2000, from the pawnshops for gun purchases, for full metal jacket purchases and for bus and plane transportation between Savannah and New York City.1
On November 21, 2000, CID Agents Hickey and Miller met Ortiz at Hunter Army Airfield, Georgia, upon his return from military training in California. ATF Agents Valoze and John Limbach also were present at the airport. The agents did not arrest Ortiz at that time, but did interview him — first at the CID office and then at the ATF field office. The agents advised Ortiz of his Miranda rights.2 Ortiz read and signed waivers of his rights to counsel and to remain silent, and agreed to speak with the agents.
At the CID office, Ortiz stated that he had transported the seventeen firearms to New York City. During his interview at the ATF office, Ortiz agreed to make a written statement, which he asked Agent Valoze to write for him, about his alleged firearms-related activity.3 After Agent Valoze completed the statement on Ortiz's behalf, Ortiz read it and signed each page of his statement. Ortiz made no changes or corrections to the statement dictated to Agent Valoze. Above the signature block where he signed, Ortiz verified that his statement was true and correct as follows:
I have read the foregoing statement consisting of ___ pages, each of which I have signed. I fully understand this statement and I declare, certify, verify and/or state under penalty of perjury that the foregoing is true and correct. I made the corrections shown and placed my initials opposite each. I made this statement freely and voluntarily without any threats or rewards, or promises of reward having been made to me in return for it.
ATF Form 5000.4
The government introduced Ortiz's signed statement into evidence at trial. According to his statement, Ortiz traveled to New York City and sold four guns to Richard Alexander Rivera ("Rivera" or "Alex Rivera"), whom he knew from when he lived in New York, for about $900.5 He then made a second trip to New York City and sold five guns to Martin Jenkins ("Jenkins" or "Marty Jenkins") for about $900. On a third trip, Ortiz again traveled to New York City and sold eight guns to Rivera for about $1300.6 Ortiz resold seventeen guns, the same number of guns he had purchased in Georgia, to the two buyers in New York City. Because they are not Georgia residents, neither Rivera nor Jenkins legally could purchase firearms in Georgia.
Ortiz's statement indicated that "[b]efore I purchased any of these firearms, an individual named Alex Rivera, a friend of my sister, Elisha Ortiz, had asked me if I could buy guns for him in Georgia" (emphasis added). In his statement,7 Ortiz described each of his three trips to New York City. Regarding the first trip, Ortiz stated that he traveled to New York City by Greyhound bus with the first four guns, which he took to his fiancee's house. She objected to having the guns there, so Ortiz "called Alex Rivera ... and offered to sell him the guns." He then returned to Hinesville, Georgia. Using some of the proceeds from his previous sale, Ortiz purchased five more guns in Hinesville. As to this second purchase for Rivera, Ortiz's statement also indicated: "Rivera had asked me to purchase more firearms and that he would buy them from me."
About one week later, Ortiz made his second trip. He returned to New York City by bus and brought the five guns he purchased in Hinesville to his sister's house. His sister provided him with the name of Marty Jenkins, a friend of hers, as a potential buyer. Ortiz contacted Jenkins. Jenkins came to Ortiz's sister's house, paid cash and picked up the guns. Ortiz flew back to Georgia.
On his third trip to New York City, Ortiz brought eight guns by Greyhound bus. Ortiz stated that he "called Alex Rivera from the bus station in New York and told him that I had the guns and told him to meet me at my sister's house." According to Ortiz's statement, Rivera met Ortiz at his sister's house and gave Ortiz about $1300 for the guns.
While being interviewed on November 21, 2000, Ortiz agreed to telephone Rivera and Jenkins. Ortiz made a total of five telephone calls, two of which were unsuccessful attempts to reach Jenkins. Each call was made in the presence of Agent Valoze and recorded by the ATF via microcassette recorder. The recorded calls indicated that Rivera and Jenkins had purchased guns from Ortiz. Arrest warrants were obtained for Rivera and Jenkins and were executed by the ATF in New York City on November 30, 2000.
At the time the arrest warrant was served, Rivera consented to a search of his home. Among other things, four guns were recovered at Rivera's...
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