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United States v. Ortiz, 23 F.3d 21, 1st Cir. (1994)
United States v. Ortiz, 23 F.3d 21, 1st Cir. (1994)
3d 21
I.
BACKGROUND AND PRIOR PROCEEDINGS
2
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 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.
8
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.
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.
10
II.
DISCUSSION
11
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
12
13
14
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 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)).
15
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).
16
B. Prosecutorial Misconduct
17
18
Here, the references complained of, even if erroneous, fell far short of the plain
error threshold. They did not in any way interfere with the jury's ability to
resolve the keystone issue in this case--whether defendant knew that the bags
he was transporting to the Monte Carlo contained cocaine. Moreover, they were
followed by two separate instructions informing the jury that closing arguments
do not constitute evidence. In light of these facts, and of the further fact that
there was a significant amount of circumstantial evidence supporting the jury's
finding that defendant, Zapata, and persons unknown were engaged in a
conspiracy, see supra note 3, there is no basis for us to conclude that the
references to Escobar in the closing arguments, even if erroneous, resulted in a
miscarriage of justice. See United States v. Giry, 818 F.2d 120, 133 (1st Cir.),
cert. denied, 484 U.S. 855, 108 S.Ct. 162, 98 L.Ed.2d 116 (1987). Accordingly,
we reject defendant's prosecutorial misconduct argument.
C. Ineffective Assistance
20
Defendant next argues that his trial attorney's failure to object to the
prosecutor's references to Escobar as a member of the conspiracy during
closing arguments constitutes ineffective assistance of counsel. So far as we can
tell, this argument never was presented to the district court. And, generally
speaking, we will not address an ineffective assistance claim raised for the first
time on direct appeal. See, e.g., United States v. Jadusingh, 12 F.3d 1162, 1169
(1st Cir.1994). In situations like the present one, however, where " 'the critical
facts are not in dispute and a sufficiently developed record exists,' " id. (quoting
United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.1993)), there is no reason for
us to delay consideration of defendant's claim. Therefore, we address
defendant's ineffective assistance argument on the merits.
21
Here, even if we assume arguendo that trial counsel's failure to object fell
below the applicable standard, we cannot say that, but for the error, there is a
reasonable probability that defendant would have been acquitted. As we have
stated above, the prosecutor's references to Escobar during his closing
argument, even if erroneous, in no way interfered with the jury's ability to make
the central factual determination in this case (i.e., whether defendant knew the
bags contained cocaine). Furthermore, we are confident that the trial court's two
instructions that closing arguments are not evidence, made subsequent to the
challenged references, largely offset any improper effects of those references.
Finally, the significant circumstantial evidence supporting the jury's conspiracy
finding cements our view that the challenged references did not affect the
outcome of this case. Accordingly, we reject defendant's argument that he was
victimized by constitutionally ineffective assistance of counsel.
D. Newly-Discovered Evidence
23
24
In order for a defendant to prevail on a motion for a new trial based upon
newly-discovered evidence, four conditions must be met: (1) the evidence was
unknown or unavailable to defendant at the time of trial; (2) the failure to
discover the evidence was not due to a lack of diligence on the part of
defendant; (3) the new evidence must be material; and (4) the evidence would
probably produce an acquittal upon retrial of defendant. United States v.
Benavente Gomez, 921 F.2d 378, 382 (1st Cir.1990); United States v. Wright,
625 F.2d 1017, 1019 (1st Cir.1980). If any one of these four factors is lacking,
the motion for a new trial should be denied. United States v. Natanel, 938 F.2d
302, 313 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 986, 117 L.Ed.2d
148 (1992).
25
Because the court denied defendant's motion without stating its reasons, we do
not know the precise basis for its decision. Our examination of the record,
however, convinces us that the court could not have found that defendant
exercised due diligence in attempting to secure Tejeda's and Escobar's
testimony prior to the conclusion of trial. No portion of the trial record before
us indicates that defendant ever expressed a need for testimony from either
Tejeda or Escobar; defendant neither requested a continuance so that he could
try to locate either one of them nor sought the district court's assistance in
securing their presence by means of the judicial process. Cf. Wright, 625 F.2d
at 1019 (affidavit stating that defendant, who failed to move for a continuance
to locate witness, had been conducting an "investigation" into the witness's
location during trial would not preclude a finding of a lack of due diligence).
Moreover, in his severance motion, defendant did not indicate any wish or
intention to call Escobar as a witness on his own behalf.5 Accordingly, without
expressing any comment as to whether defendant has met any of the three other
conditions necessary for the granting of a new trial, we reject defendant's
assertion that the court erred in denying his motion.
E. Speedy Trial Act
26
Defendant's fifth argument is that he was not brought to trial within the 70-day
period mandated by the Speedy Trial Act. See 18 U.S.C. Sec. 3161(c)(1). We
do not agree.
27
Defendant appears to concede that all time prior to May 20, 1992, was properly
excluded from the 70-day period prescribed in Sec. 3161(c)(1). He argues,
however, that the 120-day period from May 20, 1992, through September 18,
1992, when he filed a motion to dismiss on Speedy Trial Act grounds, was not
excludable. He therefore contends that the court erred in denying his motion to
dismiss the indictment for violation of Act.
28
Defendant's argument overlooks two facts. First, on June 16, 1992, Escobar
filed two motions to limit the use of co-conspirator statements against him.
Accordingly, the 70-day speedy trial period, which had started to run on May
20, 1992, was tolled, at least for the next 30 days. See 18 U.S.C. Sec. 3161(h)
(1)(F) and (J);6 see also United States v. Torres Lopez, 851 F.2d 520, 526 (1st
Cir.1988) (speedy trial motion resulting in excludable time from one defendant
stops the clock for all codefendants), cert. denied, 489 U.S. 1021, 109 S.Ct.
1144, 103 L.Ed.2d 204 (1989). Second, on July 31, 1992, and September 25,
1992, the district court convened scheduling conferences at which, without any
objection from defendant's counsel, defendant's trial was continued (first until
September 30, 1992, and then until October 19, 1992). Therefore, it appears
that all the time prior to defendant's trial other than those periods from May 20,
1992, through June 16, 1992, and July 16, 1992, through July 31, 1992, was
Defendant's final argument is that the district court erred when, in determining
that defendant should be held accountable for the 25 kilograms of cocaine
found in the two bags for purposes of both the Sentencing Guidelines and the
mandatory minimum sentence prescribed by 21 U.S.C. Sec. 841(b)(1)(A)(ii), it
did not make a finding as to defendant's subjective knowledge regarding drug
quantity. In so doing, defendant relies upon an opinion in which Judge
Weinstein held that a defendant can be sentenced only on the amount of drugs
s/he reasonably foresaw as being involved in his/her conduct. See United States
v. Ekwunoh, 813 F.Supp. 168, 178 (E.D.N.Y.1993), vacated on other grounds,
12 F.3d 368 (2d Cir.1994).
30
While the issue raised certainly is an interesting one, it is not one we need
resolve here. Defendant received only the 120-month mandatory minimum
sentence prescribed by Sec. 841(b)(1)(A)(ii) because the two bags contained
five or more kilograms of cocaine. Thus, any error committed by the district
court would have been harmless unless the court could have found, without
committing clear error, see United States v. Bradley, 917 F.2d 601, 605 (1st
Cir.1990), that defendant reasonably did not foresee that at least five kilograms
of cocaine were involved in his offenses. Here, there is no way the court could
have reached that conclusion without committing clear error.7 The two bags,
which were visibly heavy to the surveilling agent, contained 25 one-kilogram
packages of cocaine (fifteen packages in one bag and ten in the other) and
apparently little, if anything, else. And, as we have already observed, the jury
implicitly and supportably found that defendant knew the contents of the black
bags. In light of these facts alone, there simply would be no basis for finding
that defendant reasonably did not foresee that at least five kilograms of cocaine
were involved in his crimes. Accordingly, even if the district court erred in
failing to make a finding as to defendant's subjective knowledge regarding drug
quantity (a point on which we express no opinion), the error was harmless.
III.
CONCLUSION
31
32
Affirmed.
The trial record reflects, and defendant's counsel confirmed at oral argument,
that contrary to the more prevalent Hispanic custom, defendant and his
codefendants prefer that the last of their given names be used as surnames
The details of Zapata's arrest are set forth in greater detail in United States v.
Zapata, 18 F.3d 971, 973-74 (1st Cir.1994)
The only indication in the record of any attempt by defendant to locate Tejeda
or Escobar during trial is found in the text of the motion for a new trial, which
states: "Frederick Fermin Ortiz's lawyer kept telling Rosaura Barrios [a friend
of Ortiz] to find Escobar and Claudio Tejeda. She finally found them on the
twenty-seventh and twenty-eighth of November [after defendant's trial was
concluded]." Patently, this is insufficient to constitute due diligence
Although the record is not entirely clear on this point, the district court, which
never ruled on Escobar's motions, apparently treated them as motions which did
not require a hearing, and which therefore only toll the 70-day period for 30
days. See Henderson v. United States, 476 U.S. 321, 328-29, 106 S.Ct. 1871,
1875-76, 90 L.Ed.2d 299 (1986) (indicating that, when a pretrial motion not
requiring a hearing is filed with the district court but not ruled upon, Sec.
3161(h)(1)(F) and (J) act in unison to exclude 30 days from the speedy trial
clock)
In so stating, we note that, at his sentencing hearing, defendant did not evince a
desire to add to or challenge any of the drug quantity evidence adduced at trial.
Cf. United States v. Tavano, 12 F.2d 301, 305-06 (1st Cir.1993) (Due Process
Clause requires the sentencing judge to consider all available drug quantity
evidence, including evidence conflicting with that introduced at trial.).
Accordingly, our conclusion is based upon the drug quantity evidence advanced
at trial