United States v. Ortega ( 1997 )

[NOT FOR PUBLICATION]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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