United States v. Ortiz-De-Jesus

United States Court of Appeals
For the First Circuit

No. 99-1463

UNITED STATES OF AMERICA,

Appellee,

FELIPE ORTIZ DE JESUS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Edgar R. Vega Pabon, by appointment of the court, for
appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief,
for appellee.

October 17, 2000
SELYA, Circuit Judge. On April 10, 1997, a federal

grand jury sitting in the District of Puerto Rico returned a

three-count indictment against a number of individuals. In

Count 2 of the indictment, the grand jury charged several

persons, including Felipe Ortiz de Jesús (Ortiz), with

conspiring to distribute controlled substances in violation of

21 U.S.C. § 846. In Count 3 of the indictment, the grand jury

charged some of the same individuals, including Ortiz, with

using and carrying firearms during and in relation to the

commission of a drug-trafficking offense. See 18 U.S.C. §

924(c)(1). Following a five-week trial, a petit jury found

Ortiz guilty on both counts. The district court thereafter

sentenced him to a term of life imprisonment on the conspiracy

charge and, ironically, to a consecutive five-year prison term

on the firearms charge. Ortiz appeals.1 Having carefully

reviewed the record, we affirm.

The appellant urges us to overturn his conviction

because of prosecutorial misconduct relating to the presentation

1Ortiz stood trial with eight codefendants (all of whom were
found guilty), and we consolidated the nine ensuing appeals.
Seven of them, including this one, were argued together on
September 14, 2000. The other two were submitted on the briefs
to the same panel. Because this appeal raises issues peculiar
to Ortiz, we have chosen to decide it in a separate opinion.

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of testimony to the grand jury. This broadside refers to the

grand jury testimony of William Acevedo Rodríguez (Acevedo), a

coconspirator who decided to cooperate with the prosecution and

who became a government witness. When Acevedo — the only

witness before the grand jury who implicated the appellant — was

asked to identify the appellant, he described him as a

"gatillero" or "hit man" who "kill[ed] people" on the

instructions of Carlos Hernández Vega (a kingpin of the charged

conspiracy). The grand jury evidently believed this testimony,

as it charged that the appellant "did possess, carry, use and

brandish firearms . . . using them to provide protection to the

leaders of the organization as well as to the drug operations of

the conspiracy from rival drug-trafficking organizations, and to

engage in shootings against members of the rival drug-

trafficking organizations pursuant to the instructions of the

[conspiracy's] leaders."

When the case went to trial, the government called

Acevedo as a witness. He testified on cross-examination that,

although he had labeled the appellant as a hit man, he had never

actually seen the appellant fire any shots. When pressed, he

admitted that his grand jury testimony was in that sense "a

mistake."

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Characterizing this testimony as a flat contradiction

of Acevedo's grand jury testimony, the appellant moved ore

sponte to dismiss the indictment on the ground that the

prosecutor had knowingly presented false testimony to the grand

jury. The district court denied the motion. After the jury

found the appellant guilty, he moved for judgment of acquittal

on this theory. 2 The district court declined to scuttle the

indictment.

In this venue, the appellant persists in his contention

that the district court erred in refusing to dismiss the

indictment for prosecutorial misconduct. We must preface our

review of this contention with a caveat: not every

prosecutorial bevue during grand jury proceedings warrants the

post-conviction dismissal of an indictment. Usually, the trial

jury's verdict provides an adequate safeguard against the

failings of the grand jury process. See United States v.

Georgi, 840 F.2d 1022, 1030 (1st Cir. 1988). Thus, dismissal

after conviction is appropriate only in cases of "serious and

blatant prosecutorial misconduct" — misconduct so grave that it

calls into doubt the fundamental fairness of the judicial

2
The appellant's motion for judgment of acquittal also
challenged the sufficiency of the evidence. We discuss that
argument infra.

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process. United States v. Font-Ramirez, 944 F.2d 42, 46 (1st

Cir. 1991) (citations omitted).

In this case, the appellant stumbles at the starting

gate: he has failed to prove that any prosecutorial misconduct

occurred. While he claims that the government knowingly

permitted a witness to make false statements before the grand

jury, leading to an improper probable cause determination, his

claim is built on a non-existent foundation. We explain

briefly.

The appellant's argument proceeds from the premise that

Acevedo's statements before the grand jury were antithetic to

his trial testimony. But the record belies this premise.

During the grand jury proceeding, Acevedo provided testimony

about the appellant's general relationship with Carlos Hernández

Vega. Much of his testimony was obviously hearsay — and there

is, of course, no prohibition on either the presentation of

hearsay evidence to a grand jury or the grand jury's use of that

hearsay evidence in determining whether to indict. See, e.g.,

United States v. Houlihan, 92 F.3d 1271, 1289 n.18 (1st Cir.

1996); Font-Ramirez, 944 F.2d at 46. Read in context, Acevedo's

description of the appellant as a "hit man" fell into this

category; it dealt more with the appellant's reputation than

with Acevedo's personal observations.

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At trial, however, Ortiz's counsel laid bare Acevedo's

lack of any personal knowledge of the appellant's alleged

homicidal tendencies. Acevedo's statement that he had no such

knowledge plausibly can be viewed as serving to clarify his

grand jury testimony, rather than repudiating it in toto. In

the final analysis, then, the record regarding the veracity of

Acevedo's statements to the grand jury is uncertain.

That ends this aspect of the matter. Because the two

sets of statements did not necessarily conflict, the appellant

cannot be said, as a matter of law, to have met his burden of

proving falsity. And without proof that the testimony adduced

before the grand jury was false, the appellant cannot succeed in

his contention that the prosecutor knew Acevedo's grand jury

testimony was fabricated, but used it nonetheless. See, e.g.,

United States v. Flores-Rivera, 56 F.3d 319, 328 (1st Cir. 1995)

(finding no prosecutorial misconduct where, in considering

allegedly false testimony before a grand jury, there was

insufficient evidence to prove a particular statement to be

untrue).

If more were needed — and we doubt that it is — the

appellant's contention also is deficient in other respects. In

the first place, even if the record showed a direct

contradiction — which it does not — there is no reason to

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believe that Acevedo's grand jury testimony, rather than his

trial testimony, was false. In the second place, even if the

record showed that the statements to the grand jury were lies —

which it does not — there is no proof that the prosecutor knew

that fact when he brought the witness before the grand jury.

Absent knowledge of falsity, any defect in the grand jury

proceedings would, on this record, be harmless beyond a

reasonable doubt (i.e., inoculated by the jury verdict). See

Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988);

Flores-Rivera, 56 F.3d at 328. For these reasons, we reject the

appellant's principal assignment of error.

Our journey is not yet finished, as Ortiz's appeal also

entails a challenge to the sufficiency of the evidence. This

challenge invokes a familiar standard of review: when

evaluating the sufficiency of the evidence presented against a

defendant in a criminal case, an appellate court must "canvass

the evidence (direct and circumstantial) in the light most

agreeable to the prosecution and decide whether that evidence,

including all plausible inferences extractable therefrom,

enables a rational factfinder to conclude beyond a reasonable

doubt that the defendant committed the charged crime." United

States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997).

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It is hornbook law that a defendant may be found guilty

of participating in a drug-trafficking conspiracy without

knowing the full extent of the enterprise or the identities of

all the coconspirators. See United States v. Rivera-Santiago,

872 F.2d 1073, 1079 (1st Cir. 1989). The governing statute is

21 U.S.C. § 846. To convict a defendant of violating that

statute, the government must "show beyond a reasonable doubt

that a conspiracy existed and that a particular defendant agreed

to participate in it, intending to commit the underlying

substantive offense." United States v. Sepulveda, 15 F.3d 1161,

1173 (1st Cir. 1993). This burden may be met through either

direct or circumstantial evidence, or through some combination

of the two. See United States v. Marrero-Ortiz, 160 F.3d 768,

772 (1st Cir. 1998); Houlihan, 92 F.3d at 1292. Moreover, both

the conspiracy's existence and a particular defendant's

participation in it may be inferred from the members' "words and

actions and the interdependence of activities and persons

involved." United States v. Boylan, 898 F.2d 230, 241-42 (1st

Cir. 1990).

The appellant's related conviction implicates 18 U.S.C.

§ 924(c)(1), which provides in pertinent part that: "[Whoever,]

during and in relation to any . . . drug trafficking crime . .

. for which he may be prosecuted in a court of the United

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States, uses or carries a firearm, shall . . . [be punished as

provided]." In order to convict under the "use" prong of this

statute, the government must prove beyond a reasonable doubt

"actual use" of a firearm, a standard that "'includes

brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire, a firearm.'" United

States v. Valle, 72 F.3d 210, 217 (1st Cir. 1995) (quoting

Bailey v. United States, 516 U.S. 137, 148 (1994) (citations

omitted)). To convict under the "carry" prong of the statute,

the government must prove beyond a reasonable doubt that the

defendant knowingly carried, conveyed, or transported a firearm.

See Muscarello v. United States, 524 U.S. 125, 126 (1998).

Finally, the government also must prove beyond a reasonable

doubt the requisite nexus between the use or carriage, on one

hand, and a drug-trafficking crime, on the other hand. See,

e.g., United States v. Bergodere, 40 F.3d 512, 518 (1st Cir.

1994); United States v. Hadfield, 918 F.2d 987, 998 (1st Cir.

1990).

Against this backdrop, we turn to the appellant's

second assignment of error. Ortiz concedes, as he must, that

the government proved the existence of a large, long-lasting

conspiracy dealing in various controlled substances. The

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government presented evidence linking the appellant both to a

drug point in the Ramos Antonini housing project that the

conspiracy controlled and to the scene of two murders carried

out in an endeavor to secure the gang's hegemony over another

drug point. The government also offered evidence which showed

that, after having been informed of the location of the planned

assassinations, the appellant proceeded to that locus with other

individuals charged in the indictment. Finally, a survivor of

the attempted massacre, Ramón Santiago-Casiano, identified the

appellant as the person who shot him in the face with a

revolver. This copious evidence more than suffices to undergird

the jury's verdict on both counts of conviction.

The appellant seeks to level this mountain of proof by

assailing the credibility of the government's witnesses. But

that line of attack avails him naught. In passing upon

challenges to the sufficiency of the evidence, we are bound to

refrain from making independent judgments as to witness

credibility. See Noah, 130 F.3d at 494; United States v.

Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). We recently

summed up this principle in United States v. Alicea, 205 F.3d

480 (1st Cir. 2000), in which we wrote that "[e]xcept in the

most unusual circumstances . . . credibility determinations are

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for the jury, not for an appellate court." Id. at 483. The

circumstances here are not extraordinary, so this case comes

within the sweep of the general rule, not the long-odds

exception to it.

We need go no further. We conclude, without serious

question, that the indictment returned against the appellant was

not tainted by prosecutorial misconduct. We likewise conclude

that

the evidence presented at trial, taken in the light most

congenial to the government's theory of the case, amply

substantiated the jury verdict. No more is exigible.

Affirmed.

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