United States v. Eric Gabriel Ortiz ( 1997 )


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  •                           United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 96-4022SI
    _____________
    United States of America,               *
    *
    Appellee,         *
    *
    v.                                *
    *
    Eric Gabriel Ortiz,                     *
    *
    Appellant.        *
    ____________
    No. 96-4023SI
    ____________
    United States of America,               *
    *
    Appellee,         *   Appeals from the United States
    *   District Court for the Southern
    v.                                *   District of Iowa.
    *
    Roeles Ortiz,                           *
    *
    Appellant.        *
    ____________
    No. 96-4129SI
    ____________
    United States of America,               *
    *
    Appellee,           *
    *
    v.                                *
    *
    Sean Demarco Stone,                     *
    *
    Appellant.          *
    ____________
    No. 96-4168SI
    ____________
    United States of America,               *
    *
    Appellee,           *
    *
    v.                                *
    *
    Ramon Ortiz, Jr.,                       *
    *
    Appellant.          *
    _____________
    Submitted: May 22, 1997
    Filed: September 11, 1997
    _____________
    Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
    _____________
    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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