Case: 09-50988 Document: 00511412633 Page: 1 Date Filed: 03/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2011
No. 09-50988
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAIME ORTEGA-URQUIDI, also known as Jaime Urquidi-Ortega,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:02-CR-96-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jaime Ortega-Urquidi, permitted by this court to proceed pro se, appeals
his jury-trial conviction, and subsequent sentence, for aiding and abetting the
possession of, with intent to distribute, five or more kilograms of cocaine, and
aiding and abetting the distribution of 500 grams or more of cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. He was sentenced to 220
months’ imprisonment on each count, to be served concurrently.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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Ortega contends: (1) the Government failed to produce sufficient evidence
in support of his convictions; (2) the district court violated his due-process rights
by denying his motion to suppress any in-court identification of him by Baeza
Quinonez; (3) the Government engaged in misconduct by knowingly presenting
false evidence; (4) the court committed reversible error when it declined to grant
jury requests for a transcript of Ramirez’ testimony and Ortega’s telephone
number provided in Ramirez’ testimony; (5) the court erred in applying an
obstruction-of-justice enhancement; and (6) it erred in finding Ortega exercised
a leadership role, resulting in a two-level increase to his base offense level.
Because Ortega preserved his insufficiency-of-evidence claim, it is
reviewed de novo. See United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008).
For aiding and abetting, the Government must prove “that the . . . elements of
the substantive offense occurred and that the defendant associated with the
criminal venture, purposefully participated in the criminal activity, and sought
by his actions to make the venture succeed”. United States v. Jimenez, 509 F.3d
682, 689 (5th Cir. 2007). “The underlying offense of possession with intent to
distribute requires the Government to prove that the defendant ‘(1) knowingly
(2) possessed cocaine (3) with intent to distribute it.’” Percel, 553 F.3d at 911
(quoting United States v. Medina, 161 F.3d 867, 873 (5th Cir. 1998)). As for the
underlying distribution-of-cocaine offense, “the Government must prove that the
defendant (1) knowingly (2) distributed (3) the controlled substance”. United
States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996).
The evidence at trial showed that, in September 2002, Ortega arranged to
deliver six kilograms of cocaine to Quinonez, who would hold the cocaine for
Ortega and deliver it upon his instruction. Financial arrangements were made
only through Ortega. In return for Quinonez’ participation, Ortega would pay
Quinonez with cash or a portion of the drugs.
Ramirez, working as a cooperating informant with local and federal law
enforcement officers, contacted Ortega to purchase marijuana. Ortega offered
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cocaine instead and the two made arrangements for Ramirez to obtain one
kilogram of cocaine on credit from Ortega on 9 September 2002, to be delivered
by Quinonez. Officers monitored the controlled buy; and, after Quinonez
provided the cocaine to Ramirez, officers arrested Quinonez. Ramirez gave the
cocaine to officers, and officers accompanied Quinonez to his home and his
business, where they seized the other five kilograms of cocaine.
Approximately two days after the controlled buy, Ramirez spoke with
Ortega and informed him, untruthfully, that he had been arrested and,
truthfully, that Quinonez had been arrested and the cocaine seized. A little over
a week after the controlled buy, Ortega was indicted. Ortega, however,
remained a fugitive until 9 January 2009, when he attempted to enter the
United States under an assumed name using false identification documents. On
a standard check, officers determined Ortega’s fingerprints matched those on his
2002 warrant. A fingerprint examiner confirmed the match and officers arrested
Ortega, almost seven years after the warrant issued.
This evidence is sufficient to show Ortega: had ownership and control over
both the cocaine sold in the controlled buy and the cocaine seized from Quinonez’
home and business, see, e.g., United States v. Skipper, 74 F.3d 608, 611 (5th Cir.
1996); and, based on the large quantities of drugs involved, intended to sell or
distribute it. United States v. Guanespen-Portillo, 514 F.3d 393, 396-97 (5th Cir.
2008); United States v. Mather, 465 F.2d 1035, 1037-38 (5th Cir. 1972). Further,
the evidence demonstrated that Ortega sought, through his supervision and
participation, to further the drug-distribution venture. Viewing the evidence in
the requisite light most favorable to the verdict, the Government produced
sufficient evidence for a reasonable juror to find the elements of each offense
were established beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Percel, 553 F.3d at 910.
Ortega maintains the district court violated his due-process rights by
denying his motion to suppress any in-court identification of him by Quinonez.
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The district court’s related factual findings are reviewed for clear error; its
conclusions of law, de novo. United States v. Moody, 564 F.3d 754, 762 (5th Cir.),
cert. denied 129 S. Ct. 2756 (2009).
To determine the admissibility of identification evidence, a two-step
inquiry is applied: (1) whether the identification was impermissibly suggestive;
and (2) whether the procedure posed a very substantial likelihood of irreparable
misidentification. United State v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997). As
to the latter inquiry, the facts considered are: (1) the opportunity of the witness
to observe the criminal at the crime scene; (2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description; (4) the witness’ level of
certainty; and (5) the time between the crime and the identification. Id.
In applying these factors, the court did not err in finding Quinonez’
identification of Ortega was reliable. See Moody, 564 F.3d at 763. The evidence
showed that, while Quinonez was in prison, a drug task force officer presented
him with two photographs of Ortega and Quinonez identified Ortega to the
officer. Quinonez testified at the suppression hearing and trial that he had
“always known” Ortega because they grew up in the same area of Mexico and
had worked together in cocaine-trafficking ventures since approximately 1996.
This relationship provided him both the opportunity and incentive to observe
and be familiar with Ortega’s appearance. See id. Given the illegal nature of
their work, Quinonez had every reason to be particular in his observations of
Ortega’s appearance. See id. Although seven years passed between the date of
the offense and Quinonez’ identification, he had worked with Ortega during that
time.
In addition, Ortega asserts that the Government engaged in misconduct
by: presenting evidence to show he was the individual discussing drug
transactions in sound recordings made by law enforcement officers; and
presenting the testimony of Ramirez and Quinonez. For a new trial based on
misconduct, Ortega must show: (1) the witness’ testimony was false; (2) the
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Government knew it was false; and (3) the testimony was material. See United
States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997). Ortega’s unsupported
assertions are insufficient to show Quinonez’ and Ramirez’ testimony, as well as
that of officers identifying Ortega’s voice and experts identifying his fingerprints,
were false. See id. at 893-94.
Further, the court did not err in denying the jury’s request for: a
transcript of Ramirez’ testimony regarding the controlled-drug buy; and
Ramriez’ testimony regarding Ortega’s telephone number. See United States v.
Schmitt, 748 F.2d 249, 256 (5th Cir. 1984). Because Ortega did not object in
district court, this issue is reviewed only for plain error. United States v.
Daniels, 281 F.3d 168, 184 (5th Cir. 2002). Under plain-error review, defendant
must show, inter alia, a clear or obvious error affecting his substantial rights.
United States v. Infante, 404 F.3d 376, 388 (5th Cir. 2005). Ortega’s assertion
that the jury wanted the transcript and phone number because it questioned
Ramirez’ credibility is purely speculative. Accordingly, there was no clear or
obvious error in the district court’s determination that, in the absence of the
jury’s providing a reason for the request, the testimony regarding the controlled-
drug buy and phone number would unduly emphasize that testimony and delay
the proceedings. See United States v. Krout, 66 F.3d 1420, 1433 (5th Cir. 1995).
Nor does it support Ortega’s further speculation that the lack of the transcript
and phone number resulted in a guilty verdict.
Moreover, Ortega contends the court erred in applying the obstruction-of-
justice enhancement when calculating his advisory sentencing range. This fact-
finding is reviewed for clear error. See United States v. Juarez-Duarte, 513 F.3d
204, 208 (5th Cir. 2008). The record reflects that Ortega fled to Mexico after
Ramirez informed him he and Quinonez had been arrested and the cocaine had
been seized. Ortega remained in Mexico for almost seven years before
attempting to return to the United States under a false name. Ortega’s flight
and subsequent presentation of false identification documents upon attempting
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reentry was obstructive and not an ordinary case of avoidance of arrest;
therefore, the enhancement was not clearly erroneous. See id. at 208-09;
U.S.S.G. § 3C1.1, cmt. n.5(d).
Similarly, the court did not clearly err in applying the leadership-role
enhancement pursuant to Guideline § 3B1.1(c). See United States v. Rose, 449
F.3d 627, 633 (5th Cir. 2006). The evidence reflected that Ortega exercised a
leadership role: he had been a source of drugs for both Ramirez and Quinonez;
he arranged for the delivery to, and distribution from, Quinonez of six kilograms
of cocaine; he arranged for the sale and delivery to Ramirez of one kilogram of
cocaine; and he had previously recruited Ramirez to smuggle marijuana into the
United States.
AFFIRMED.
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