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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