United States v. Ortiz

United States Court of Appeals
For the First Circuit

No. 93-1350

UNITED STATES,

Appellee,

v.

FREDERICK FERMIN ORTIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Barry P. Wilson for appellant.

Geoffrey E. Hobart, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and R. Bradford Bailey,

Assistant United States Attorney, were on brief for appellee.

May 5, 1994

STAHL, Circuit Judge. In this appeal, defendant-
STAHL, Circuit Judge.

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, 113 S. Ct. 1005 (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

1. 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.

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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

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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.

Later that same day, search warrants were executed

at both 25 Glen Ellen Road and 77 Acton Road. The search of

2. The details of Zapata's arrest are set forth in greater
detail in United States v. Zapata, No. 93-1349, slip op. at

2-4 (1st Cir. March 24, 1994).

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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.

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. 846, 841(a)(1); see also 18 U.S.C.

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

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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. 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

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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 prove it.'" Ortiz, 966 F.2d at 711 (quoting

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).

Here, we think it apparent that the sufficiency

issue reduces into a rather straightforward inquiry: Could a

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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,

111 S. Ct. 1625 (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

3. Among these circumstances were (1) defendant's apparent
access to 77 Acton Road at a time when a significant amount
of drugs were being stored there; (2) defendant's apparent
access to an automobile registered to a person who seemingly
had some degree of control over 77 Acton Road; (3)
defendant's significant (in terms of time and proximity)
association with Zapata during the course of Zapata's
preparations to distribute the cocaine; (4) defendant's
placing of the drugs into the trunk of the Monte Carlo; and
(5) defendant's inconsistent statements regarding his
residency and occupation following his arrest.

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Cir. 1993) (noting elements of crimes charged in the instant

indictment).

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 scene where a

serious narcotics offense was being committed. This trust,

in turn, permits a reasonable inference of criminal

complicity between defendant and these persons. See United

States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) ("`The

fact finder may fairly infer . . . that it runs counter to

human experience to suppose that criminal conspirators would

welcome innocent non-participants as witnesses to their

crimes.'" (quoting United States v. Passos-Paternina, 918

F.2d 979, 985 (1st Cir. 1990), cert. denied, 111 S. Ct. 2808

(1991))). And, when this inference is coupled with the fact

that defendant, who had entered the condominium empty-handed,

actually retrieved the drugs from the condominium and loaded

them into the Monte Carlo, cf. Ortiz, 966 F.2d at 712

(indicating that where the defendant was present during the

course of transportation or storage of contraband, the

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possibility that s/he is an innocent bystander is

significantly greater), we think it apparent that the jury

rationally "could have found," Akinola, 985 F.2d at 1109,

that defendant knew that the black bags contained cocaine.

Accordingly, we reject defendant's sufficiency challenge.4

B. Prosecutorial Misconduct

Defendant's second argument is that prosecutorial

misconduct during closing argument deprived him of a fair

trial. Specifically, defendant contends that the prosecutor

"repeatedly, both expressly and impliedly, referred to

Escobar as a member of a conspiracy which included, inter

alia, [himself] and Zapata" despite the fact that the

district court had found insufficient evidence to send the

conspiracy charge against Escobar to the jury. In

defendant's view, the prosecutor's statements constituted

impermissible references to matters not in evidence or not

supported by a reasonable view of the evidence. See United

States v. de Leon Davis, 914 F.2d 344-45 (1st Cir. 1990). We

are not convinced.

Even if we assume arguendo the truth of defendant's

assertion, we are constrained by the fact that defendant did

not interpose a contemporaneous objection to these references

4. Much of the evidence we have relied upon in rejecting
defendant's sufficiency claim equally implicated Escobar,
whose motion for a judgment of acquittal at the conclusion of
the government's case was granted by the district court. The
propriety of that acquittal is not, of course, before us.

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during the course of closing arguments. Accordingly, we

review only for plain error. And, error rises to this level

only when it is "`so shocking that [it] seriously affect[ed]

the fundamental fairness and basic integrity of the

proceedings conducted below.'" E.g., United States v. Hodge-

Balwing, 952 F.2d 607, 611 (1st Cir. 1991) (quoting United

States v. Olivo-Infante,938 F.2d 1406, 1412 (1st Cir. 1991)).

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 (1987).

Accordingly, we reject defendant's prosecutorial misconduct

argument.

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C. Ineffective Assistance

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.

In order to demonstrate constitutionally

ineffective assistance of counsel, a defendant must show (1)

that counsel's conduct fell below the applicable standard for

performance, defined by what the lawyer knew, or should have

known, at the time of his/her tactical choices; and (2) that

prejudice resulted. Fisher, 3 F.3d at 463. In this context,

"prejudice" means that, but for counsel's unprofessional

error, there is a reasonable probability that the result of

the proceedings would have been different. Lopez-Nieves v.

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United States, 917 F.2d 645, 648 (1st Cir. 1990) (citing

Strickland v. Washington, 466 U.S. 668 (1984)).

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

Defendant's fourth argument is that the district

court erred in denying, by means of a margin order, his

motion for a new trial based upon newly-discovered evidence.

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The evidence at issue is (1) an affidavit by one Claudio

Tejeda, which avers that defendant was working for Tejeda as

a mechanic on February 4, 1992; and (2) an unsworn statement

by Escobar providing an innocent explanation for the events

of February 4, 1992. Once again, we are not persuaded by

defendant's argument.

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, 112 S. Ct. 986

(1992).

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

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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

5. 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.

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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. 3161(c)(1). We do not

agree.

Defendant appears to concede that all time prior to

May 20, 1992, was properly excluded from the 70-day period

prescribed in 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.

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. 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

6. 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 (1986) (indicating that, when a pretrial motion not
requiring a hearing is filed with the district court but not
ruled upon, 3161(h)(1)(F) and (J) act in unison to exclude
30 days from the speedy trial clock).

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the clock for all codefendants), cert. denied, 489 U.S. 1021

(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 excludable. And, because these

periods of non-excludable time do not add up to 70 days,

there was no Speedy Trial Act violation.

F. Sentencing

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.

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).

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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

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

7. 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.

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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

Having rejected each of the arguments made on

appear by defendant, we affirm his convictions and sentence.

Affirmed.
Affirmed

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