United States v. Ortega

USCA1 Opinion










[NOT FOR PUBLICATION]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________


No. 95-2283

UNITED STATES OF AMERICA,

Appellee,

v.

JUANA ORTEGA,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge] ___________________

____________________

Before

Stahl and Lynch, Circuit Judges, ______________
and O'Toole,* District Judge. ______________
____________________

Richard K. Corley for appellant. _________________
Zechariah Chafee, Assistant United States Attorney, with ________________
whom Sheldon Whitehouse, United States Attorney, was on ___________________
brief, for appellee.

____________________

May 20, 1997
____________________

*Of the District of Massachusetts, sitting by designation.




















Per Curiam. Juana Ortega appeals both her Per Curiam. ___________

conviction for conspiracy to distribute cocaine base ("crack"

cocaine) and her sentence. She claims that her trial was

flawed in that the court gave an improper Allen charge and _____

that there was insufficient evidence to support her

conviction. She also argues error in the trial court's

denial of her motion for a new trial. Finally, she disputes

the court's determination of her sentence. We affirm.

I.

Ortega was charged with distributing crack cocaine

in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, and

conspiracy to distribute crack cocaine in violation of 21

U.S.C. 841(a)(1), 846. Her arrest resulted from an

ongoing undercover operation conducted by the Drug

Enforcement Agency ("DEA").

Between December 18 and 19, 1994, Hector San

Martin, a DEA informant, made arrangements to purchase crack

from Julio Valdez at a Providence, Rhode Island, Burger King.

Although Valdez himself had made a previous drug delivery to

San Martin several days earlier, Valdez told San Martin by

phone that this time the crack would be delivered in the

Burger King parking lot on December 19 by a boy, girl, or

woman. The Burger King was located about a quarter mile from

the apartment Valdez was using at 37 Labin Street in

Providence.



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On the day of the deal, Valdez told San Martin by

phone that a lady in white would deliver the drugs. The

"lady in white" turned out to be Ortega.

That afternoon, DEA agents conducting surveillance

observed Valdez and Ortega emerge from the Labin Street

apartment and walk together to the Burger King. After Valdez

pointed to San Martin's car, Ortega got into the front seat.

Valdez remained nearby to keep a lookout.

According to San Martin's testimony, when Ortega

entered the car, he asked Ortega if she had "the stuff," and

she replied "yes." She then pulled out a clear plastic bag

containing cocaine base from her inside jacket pocket. After

San Martin explained that he wanted to check the quality,

Ortega answered "okay" and handed the bag to him.

Leaving the crack bag on the floor of the car, San

Martin told Ortega that the money was in the trunk and got

out. At the sight of the raised trunk door -- the signal for

arrest -- DEA agents moved in to arrest Valdez and Ortega.

After a few seconds, Ortega got out of the car and ran

screaming; she was caught and arrested by one of the agents.

Valdez, who had also tried to run, was caught and arrested as

well.

In her statement to police, Ortega complained of

severe neck pain due to a thyroid condition and said that she

had been at 37 Labin Street, her girlfriend's apartment, only



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to rest. She explained her walk to the Burger King as an

attempt to ease the pain. As for the drug delivery, she said

only that at some point she was asked to do a "favor" and

that because of her physical pain, she was not thinking

clearly.

On the second day of jury deliberations at Ortega's

trial, the jury informed the court that it had reached a

verdict on all counts but was deadlocked on the conspiracy

count. The court then issued a supplemental charge

instructing the jury to go back and try to reach a verdict.

Thirty minutes later, the jury returned a guilty verdict on

the conspiracy charge.

At sentencing, the court found that Ortega had a

base offense level of 32 based on the quantity of crack she

was delivering (84.3 grams) and a criminal history category

of I. The court then granted a two-level reduction pursuant

to U.S.S.G. 5C1.2 and a four-level reduction for Ortega's

minimal role in the offense. Thus, the offense level was

reduced from 32 to 26, and defendant was sentenced to 63

months in prison and 5 years of supervised release.

II.

Ortega's motion for acquittal based on an

insufficient evidence argument was denied by the district

court. Viewing the record in the light most favorable to the

government, a rational jury could have found guilt beyond a



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reasonable doubt. See United States v. Dockray, 943 F.2d ___ ______________ _______

152, 157 (1st Cir. 1991). We therefore affirm the district

court's denial of Ortega's Rule 29(c) motion. See Fed. R. ___

Crim. P. 29(c).

To prove conspiracy, the government must show that

the defendant had the intent to agree and that the defendant

had an intent to distribute cocaine -- the substantive

offense. See United States v. DeLutis, 722 F.2d 902, 905 ___ _____________ _______

(1st Cir. 1983). Viewing the evidence and drawing inferences

therefrom, a rational jury member could certainly have found

guilt beyond a reasonable doubt. See United States v. ___ _____________

Montas, 41 F.3d 775, 778 (1st Cir. 1994), cert. denied, 115 ______ _____ ______

S. Ct. 1986 (1995). Such evidence included Valdez's

statement to San Martin that a woman wearing white would

deliver the drugs, Ortega's walk with Valdez to the Burger

King, Ortega's entrance into a stranger's car, and her prompt

delivery of a bag containing crack previously hidden on her

body, when asked for "the stuff."

This case is unlike those Ortega cites for the

proposition that a single drug transaction is insufficient

evidence of conspiracy. See, e.g., Delutis, 722 F.2d at 906; ___ ____ _______

United States v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980). _____________ ____

There is no such per se rule in any event; we look at all the

facts in the case. DeLutis merely held that the single sale _______

there was insufficient to tie the defendant buyer to the



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sellers' drug distribution conspiracies. See DeLutis, 722 ___ _______

F.2d at 905-06; see also United States v. Acevedo, 842 F.2d ___ ____ _____________ _______

502, 505-06 (1st Cir. 1988) (rejecting the argument that

evidence of conspiracy between sellers must be insufficient

because it involved only a single sale). A single sale can

establish a common purpose on the part of the sellers --

here, Ortega and Valdez. See Acevedo, 842 F.2d at 506. ___ _______

Moreover, in DeLutis, there was no direct or circumstantial _______

evidence that defendant intended to agree to become involved

in a larger supplier/distributor relationship, and there was

no basis to infer based on the single act in question. In

Izzi, there was no evidence of agreement linking the ____

defendant to the broader conspiracy during the dates charged

in the indictment. Here, there were only two members of the

conspiracy, and it is not difficult to infer knowledge and

agreement.

Other cases Ortega cites for support are also

distinguishable. See, e.g., United States v. Ocampo, 964 ___ ____ ______________ ______

F.2d 80 (1st Cir. 1992); United States v. Mehtala, 578 F.2d 6 _____________ _______

(1st Cir. 1978). The evidence here shows that Ortega's level

of involvement was greater than mere knowledge of the

substantive crime and thus suffices to support the jury's

finding that there was an intent to agree and an intent to

distribute. See United States v. Brandon, 17 F.3d 409, 439- ___ _____________ _______

40 (1st Cir. 1994) (explaining that Ocampo and Mehtala held ______ _______



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only that defendant's mere presence at scene of crime or mere

association with criminals was insufficient to support

conspiracy conviction).

Ortega also challenges the supplemental charge the

judge gave to the jury when it announced that it was

deadlocked on the conspiracy count. The trial court

committed no error. In fact, the judge recited verbatim the

Allen-type charge recommended by this court in United States _____ _____________

v. Angiulo, 485 F.2d 37, 40 n.3 (1st Cir. 1973). That the _______

jury returned a verdict thirty minutes later is not, as

Ortega asserts, evidence of "coercion."

Ortega's appeal of the trial court's denial of her

motion for new trial fares no better. We review only for

abuse of discretion or misapplication of law. See United ___ ______

States v. Rodriguez, 738 F.2d 13, 17 (1st Cir. 1984). The ______ _________

district court need only order a new trial if a miscarriage

of justice would otherwise result. See United States v. ___ _____________

Indelicato, 611 F.2d 376, 387 (1st Cir. 1979). Ortega __________

presents no claim that even suggests a miscarriage of

justice. Moreover, she does not recount any prejudicial acts

that resulted in an unfair trial, see Payton v. Abbott Labs, ___ ______ ___________

780 F.2d 147, 152-53 (1st Cir. 1985), nor does she contend

that the verdict was seriously erroneous, see Borras v. Sea- ___ ______ ____

Land Serv., Inc., 586 F.2d 881, 887 (1st Cir. 1978). It was ________________

well within the court's discretion to deny the motion.



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Lastly, Ortega challenges her sentence on two

equally unsuccessful grounds, arguing first that the judge

should have used the base offense level for powder cocaine

instead of crack cocaine and, second, that the court should

have allowed a downward departure for diminished capacity

under U.S.S.G. 5K2.13. There is absolutely no support for

Ortega's first claim: the court, pursuant to the Sentencing

Guidelines, calculated the base offense level based on the

drug involved in the crime. See U.S.S.G. 2D1.1(c). ___

Evidence at trial showed that the drug was crack cocaine.

As for Ortega's second claim, we are without

jurisdiction to review a discretionary refusal to depart.

See United States v. Morrison, 46 F.3d 127, 130 (1st Cir. ___ _____________ ________

1995); see also United States v. Saldana, 109 F.3d 100, 102- ___ ____ _____________ _______

03 (1st Cir. 1997). While the district court did not

explicitly address Ortega's request for departure for

diminished capacity, it is clear from the total circumstances

of the case as well as the court's remarks at sentencing

that, rather than believing it lacked authority to depart,

the court simply declined to do so. See Morrison, 46 F.3d at ___ ________

130. Ortega has advanced no colorable claim of legal error

that would lead us to exercise jurisdiction here.

Affirmed. ________







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