United States v. Eric Gabriel Ortiz , 125 F.3d 630 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-4022SI
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United States of America, *
*
Appellee, *
*
v. *
*
Eric Gabriel Ortiz, *
*
Appellant. *
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No. 96-4023SI
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United States of America, *
*
Appellee, * Appeals from the United States
* District Court for the Southern
v. * District of Iowa.
*
Roeles Ortiz, *
*
Appellant. *
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No. 96-4129SI
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United States of America, *
*
Appellee, *
*
v. *
*
Sean Demarco Stone, *
*
Appellant. *
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No. 96-4168SI
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United States of America, *
*
Appellee, *
*
v. *
*
Ramon Ortiz, Jr., *
*
Appellant. *
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Submitted: May 22, 1997
Filed: September 11, 1997
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Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
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FAGG, Circuit Judge.
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This is a multi-count, multi-defendant drug case. The jury convicted Eric Gabriel
Ortiz, Roeles Ortiz, Ramon Ortiz, Jr., and Sean Demarco Stone of conspiring to
distribute marijuana, cocaine, and methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846
(1994). The jury also convicted Ramon and Eric Ortiz of using or carrying a firearm
in relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1) (1994); Ramon and
Roeles Ortiz and Stone of possessing cocaine with intent to distribute, see 21 U.S.C.
§ 841(a)(1); and Ramon Ortiz of witness tampering, see 18 U.S.C. § 1512(b)(1)
(1994). Raising numerous issues, all four defendants appeal their convictions, and Eric
and Roeles Ortiz also appeal their sentences. We will fill in the facts as relevant, issue
by issue. We affirm.
First, Eric Ortiz contends his trial began after the seventy-day Speedy Trial Act
clock had run. See 18 U.S.C. § 3161(c)(1) (1994). Delays resulting from continuances
are excluded from the seventy-day period if the district court finds “the ends of justice
served by taking such action outweigh the best interest of the public and the defendant
in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). The district court granted the
Government a continuance when Eric Ortiz’s case was consolidated for trial with those
of his codefendants, but Eric Ortiz argues the resulting delay was not excludable
because the district court failed to make an “ends of justice” finding. This is a moot
point. Taking other excludable delays into account, but without excluding the
continuance delay, the district court correctly determined Eric Ortiz’s trial began on
day sixty-seven after the Speedy Trial Act clock began to run.
Next, the Ortiz brothers and Stone contend the district court should have
excluded photographs showing the defendants using gang hand signals as unfairly
prejudicial under Federal Rule of Evidence 403. The challenged snapshots display
solidarity and mutual support among the defendants and other coconspirators.
Conceding the relevance of the photographs to the issue of conspiracy, the defendants
coupled their motion to exclude with an offer to stipulate to their relationships with one
another. As a rule, however, “a criminal defendant may not stipulate or admit his way
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out of the full evidentiary force of the case as the [G]overnment chooses to present it.”
Old Chief v. United States, 117 S. Ct. 644, 653 (1997). The district court prohibited
the Government from referring to the gang signals, excluded two photographs, and
admitted the rest. In so doing, the district court acted well within its discretion. See
United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (discretion particularly
broad in context of conspiracy trial).
The Ortiz brothers and Stone next contend the district court incorrectly excluded
a report prepared by an agent of the Drug Enforcement Administration (DEA). The
report relates statements made by an informant about the drug-dealing activities of one
of the Government’s witnesses. According to the defendants, the report would have
impeached the witness’s testimony. The report was hearsay, but the defendants argue
it was admissible under Federal Rule of Evidence 803(8)(C). In civil actions and
proceedings, and against the Government in criminal cases, Rule 803(8)(C) creates a
hearsay exception for “factual findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.” The Ortiz brothers and Stone also contend the
informant’s statements within the report were admissible under Rule 804(b)(3) as
statements against interest.
The DEA report presents an instance of double hearsay: the report itself, and the
informant’s statements contained in the report. Thus, the report is inadmissible unless
each level of hearsay falls within an exception to the hearsay rule. See Fed. R. Evid.
805; Hoselton v. Metz Baking Co., 48 F.3d 1056, 1061 (8th Cir. 1995). We need not
address the admissibility of the informant’s statements under Rule 804(b)(3) because
the report itself is inadmissible under Rule 803(8)(C). The report is essentially a
transcript of what the informant told the DEA agent. It does not present “factual
findings,” which is what Rule 803(8)(C) makes admissible. See United States v.
D’Anjou, 16 F.3d 604, 610 (4th Cir. 1994).
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The next issue involves testimony concerning the seizure by police of $20,000
from Eric Ortiz. The Ortiz brothers and Stone moved in limine to have that testimony
excluded. The district court denied the motion, but expressed willingness to consider
giving a limiting instruction if the defendants proposed one. See Fed. R. Evid. 105.
They failed to do so. On appeal, Eric Ortiz does not challenge the admission of the
testimony against himself, but the other two Ortiz brothers and Stone contend the
district court committed error when it admitted the testimony without an instruction
limiting its scope to Eric Ortiz alone. None of the defendants asked for a limiting
instruction, however, and the district court did not commit plain error in not giving one
sua sponte. See United States v. Perkins, 94 F.3d 429, 435-36 (8th Cir. 1996). Before
retiring, the jury was instructed that “[e]ach defendant is entitled to have his case
decided solely on the evidence which applies to him.” The jury acquitted Roeles Ortiz
on two counts and a fifth defendant on another count, demonstrating the jury’s ability
to compartmentalize the evidence. See United States v. Watts, 950 F.2d 508, 513 (8th
Cir. 1991). We are satisfied the absence of a limiting instruction did not affect the
defendants’ substantial rights. See Fed. R. Crim. P. 52(b).
Sean Stone was sentenced to concurrent terms for conspiring to distribute
various illegal drugs and for possession of cocaine with intent to distribute. Stone
contends both his convictions rest on insufficient evidence. In reviewing an insufficient
evidence claim, we view the evidence in the light most favorable to the verdict, giving
the verdict the benefit of all inferences that could have been reasonably drawn from the
evidence. See United States v. McCracken, 110 F.3d 535, 540 (8th Cir. 1997). We
will overturn the jury’s verdict only if “‘a reasonable fact-finder must have entertained
a reasonable doubt about the [G]overnment’s proof’” of an element of the offense. Id.(quoting United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996)).
To obtain Stone’s conviction on the conspiracy count, the Government had to
prove that “‘there was an agreement to achieve some illegal purpose, that [Stone] knew
of the agreement, and that [Stone] knowingly became a part of the conspiracy.’”
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United States v. Cabrera, 116 F.3d 1243, 1244 (8th Cir. 1997) (quoting United States
v. Ivey, 915 F.2d 380, 383-84 (8th Cir. 1990)). Once a conspiracy has been
established, even slight evidence linking Stone to the conspiracy is enough to sustain
his conviction. See id. at 1245. Here, the record amply demonstrates the existence of
a drug conspiracy, and the testimony of two unindicted coconspirators made plain
Stone’s knowing involvement in the conspiracy. Sufficient evidence supports Stone’s
drug conspiracy conviction.
Turning to the possession count, the jury was instructed Stone could be found
guilty if he aided and abetted the commission of possessing cocaine with intent to
distribute. See 18 U.S.C. § 2(a) (1994) (making one who aids or abets the commission
of a federal offense “punishable as a principal”). Aiding and abetting may be
established without evidence Stone possessed or sold cocaine. See United States v.
Smith, 32 F.3d 1291, 1294 (8th Cir. 1994). The testimony of coconspirator David
Keasling supplied the relevant evidence. Keasling testified Roeles Ortiz told him to
pick up a package of cocaine at the home of another coconspirator, Oscar Mejia. Stone
was present when Keasling arrived at Mejia’s house. Stone helped Mejia and Keasling
lift a waterbed and retrieve the cocaine from its place of concealment. Stone, Mejia,
and Keasling then transported the cocaine to Keasling’s house. The package contained
roughly eighteen ounces of cocaine, a quantity from which intent to distribute may be
inferred. See United States v. White, 81 F.3d 80, 82 (8th Cir. 1996). This evidence
was sufficient for the jury to conclude beyond a reasonable doubt that Stone
“affirmatively participated [in] or encouraged the unlawful activity.” United States v.
Johnson, 64 F.3d 1120, 1127 (8th Cir. 1995), cert. denied, 116 S. Ct. 971 (1996).
Having reviewed the issues the defendants raise about their convictions, we turn
to their sentencing challenges. Eric Ortiz appeals his four-level sentence enhancement
for organizing or leading a criminal activity involving five or more participants, see
U.S. Sentencing Guidelines Manual § 3B1.1(a) (1995), contending the district court’s
findings in support of the enhancement were insufficiently specific. We disagree. At
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Eric Ortiz’s sentencing hearing, the Government summarized the relevant testimony of
three coconspirator witnesses. Although Eric Ortiz challenged this testimony, the
district court found it both credible and sufficient to establish that Eric Ortiz led a drug
conspiracy involving six others besides himself. These findings were specific enough
to support the four-level enhancement. See United States v. Grajales-Montoya, 117
F.3d 356, 365-66 (8th Cir. 1997).
Roeles Ortiz raises two sentencing issues. First, he contends the district court
wrongly attributed to him $128,000 in drug proceeds seized from Eric Ortiz, which for
sentencing purposes translated into 4.46 kilograms of cocaine. Because Roeles Ortiz
was convicted as a coconspirator, he was “responsible for all reasonably foreseeable
acts of others taken in furtherance of the conspiracy.” United States v. Tauil-
Hernandez, 88 F.3d 576, 579 (8th Cir. 1996) (citing U.S. Sentencing Guidelines
Manual § 1B1.3(a)(1)(B)), cert. denied, 117 S. Ct. 1258 (1997). Roeles Ortiz
maintains he could not have reasonably foreseen Eric Ortiz’s $128,000 drug deal. On
the contrary, Roeles Ortiz was a committed, continuing member of the conspiracy who
stood to benefit if Eric Ortiz had escaped undetected with the cash. These facts satisfy
the reasonable foreseeability test. See United States v. Flores, 73 F.3d 826, 833 (8th
Cir.), cert. denied, 116 S. Ct. 2568 (1996). Thus, we conclude the district court’s drug
quantity findings were not clearly erroneous. See Tauil-Hernandez, 88 F.3d at 579.
Finally, Roeles Ortiz maintains his offense level should not have been enhanced
two levels for possession of a dangerous weapon. See U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (1995). The relevant testimony came from Daniel Stevens, a
coconspirator who was present when police seized the $128,000 from Eric Ortiz.
Stevens testified that over the course of several months, Ramon and Roeles Ortiz
threatened to harm him unless he told the police the $128,000 was his. Ramon Ortiz
made good on the threats by shooting Stevens. Stevens testified he was “ninety-nine
percent sure” Roeles Ortiz was present when Stevens was shot, but Stevens admitted
he could not “swear to it a hundred percent.” The jury acquitted Roeles Ortiz of gun-
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related charges arising from Stevens’s shooting. In sentencing Roeles Ortiz, however,
the district court could consider conduct underlying the gun-charge acquittals, provided
that conduct has been proved by a preponderance of the evidence. See United States
v. Watts, 117 S. Ct. 633, 637-38 (1997) (per curiam); United States v. Roach, 28 F.3d
729, 735-36 (8th Cir. 1994) (citing United States v. Johnson, 962 F.2d 1308, 1313 (8th
Cir. 1992) (stating preponderance standard)). The district court assessed a two-level
weapon enhancement based on its findings that Roeles Ortiz “participat[ed] . . . in a
series of intimidating acts against Mr. Stevens to get him to cover up the [drug-dealing]
activities of Eric [Ortiz],” and that sufficient evidence placed Roeles Ortiz at the scene
of the shooting. These findings are not clearly erroneous, and they justify Roeles
Ortiz’s weapon possession enhancement. See Tauil-Hernandez, 88 F.3d at 579(weapon enhancement proper when Government proves weapon was used to further
conspiracy and its possession was reasonably foreseeable).
We affirm the convictions of the Ortiz brothers and Stone, and we also affirm the
sentences of Eric and Roeles Ortiz.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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