United States v. Ortiz

09-4806-cr
USA v. Ortiz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of September, two thousand and
5 ten.
6
7 PRESENT: ROGER J. MINER,
8 PIERRE N. LEVAL,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 09-4806-cr
19
20 NATHANIEL L. ORTIZ,
21
22 Defendant-Appellant.
23
24
25
1 FOR APPELLANT: MARC L. GREENWALD, Peter N. Tsapatsaris,
2 Isaac Nesser, Quinn Emanuel Urquhart
3 Oliver & Hedges, LLP, New York, NY
4
5 FOR APPELLEE: MICHAEL D. MAIMIN, Assistant United
6 States Attorney, (Preet Bharara, United
7 States Attorney for the Southern District
8 of New York, Todd W. Blanche and
9 Katherine Polk Failla, Assistant United
10 States Attorneys, of counsel) New York,
11 NY.
12
13 Appeal from the United States District Court for the
14 Southern District of New York (Chin, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19 Plaintiff-appellant, Nathaniel L. Ortiz (“Appellant”),
20 appeals from a judgment of the United States District Court
21 for the Southern District of New York (Chin, J.), entered on
22 November 12, 2009, convicting Appellant of conspiracy to
23 distribute fifty grams or more of crack cocaine, in
24 violation of 21 U.S.C. § 846 and brandishing a firearm in
25 furtherance of a drug trafficking crime in violation of 18
26 U.S.C. §§ 924(c)(1)(A)(ii), 2. We assume the parties’
27 familiarity with the underlying facts, the procedural
28 history, and the issues presented for review.
29 Appellant advances four arguments on appeal. First, he
2
1 argues that the evidence was insufficient to prove the
2 charged conspiracy for three of the four and a half years
3 charged in the Superseding Indictment (the “Indictment”).
4 Second, he argues that there was a substantial variance
5 between the dates of the conspiracy alleged in the
6 Indictment and the proof adduced at trial. Third, he argues
7 that the district court erred in admitting into evidence
8 certain hearsay statements. Finally, he argues that his
9 sentence is substantively unreasonable.
10 We conclude that the evidence is sufficient to show the
11 existence of a drug conspiracy lasting from 2004 until 2008
12 and to link Appellant to the conspiracy for its full
13 duration. 1 A defendant challenging the sufficiency of the
14 evidence bears a "heavy burden," because this Court "must
15 consider the evidence in the light most favorable to the
16 prosecution and uphold the conviction if any rational trier
17 of fact could have found the essential elements of the crime
18 beyond a reasonable doubt." United States v. Aguilar, 585
19 F.3d 652, 656 (2d Cir. 2009) (internal quotation marks
1
We review a challenge to the sufficiency of the
evidence de novo. United States v. Yannotti, 541 F.3d 112,
120—21 (2d Cir. 2008).
3
1 omitted)(emphasis in original). Where a defendant challenges
2 the sufficiency of the evidence in a conspiracy, "deference
3 to the jury's findings is especially important . . . because
4 a conspiracy by its very nature is a secretive operation,
5 and it is a rare case where all aspects of a conspiracy can
6 be laid bare in court with . . . precision." United States
7 v. Santos, 541 F.3d 63, 70 (2d Cir. 2008)(internal quotation
8 marks omitted). “Both the existence of a conspiracy and a
9 given defendant's participation in it with the requisite
10 knowledge and criminal intent may be established through
11 circumstantial evidence." See United States v. Stewart, 485
12 F.3d 666, 671 (2d Cir. 2007).
13 Appellant does not dispute the substantial and direct
14 evidence proving his leadership of the drug distribution
15 conspiracy throughout 2007 and 2008. Though less
16 substantial, there is nonetheless an array of circumstantial
17 evidence of the conspiracy’s existence and Appellant’s
18 involvement for 2004 through 2006. That evidence includes,
19 inter alia: (1) 2004 undercover purchases of crack cocaine
20 in Appellant’s signature black dime bags occurring at 1269
4
1 Grand Concourse; (2) the unreported income of Appellant and
2 his now wife allowing her to purchase a number of luxury
3 automobiles; (3) testimony regarding a witness’ personal
4 knowledge of ongoing crack sales at 1269 Grand Concourse
5 during 2004; and (4) testimony regarding ongoing crack sales
6 on behalf of Appellant at the same location from at least
7 2006. This evidence, considered in its totality, is
8 sufficient for a rational jury to infer Appellant’s
9 continued participation, dating back to 2004, in the same
10 drug distribution conspiracy shown to exist in 2007 and
11 2008.
12 In any event, reversal of the conviction is not
13 appropriate because Appellant cannot show an impermissible
14 variance between the Indictment and the proof, nor can he
15 show requisite prejudice. A variance occurs "when the
16 charging terms of the indictment are left unaltered, but the
17 evidence at trial proves facts materially different from
18 those alleged in the indictment." United States v. Dupre,
19 462 F.3d 131, 140 (2d Cir. 2006) (internal quotation marks
20 omitted). Reversal of the conviction is warranted only if
21 the alleged variance prejudiced the defendant. Id.5
1 Prejudice exists if the variance "infringes on the
2 substantial rights that indictments exist to protect — to
3 inform an accused of the charges against him so that he may
4 prepare his defense and to avoid double jeopardy." Id.5 "[A]n indictment date only needs to be substantially
6 similar to the date established at trial." United States v.
7 Teague, 93 F.3d 81, 84 (2d Cir. 1996). “[S]ignificant
8 flexibility in proof,” is permissible “provided that the
9 defendant was given notice of the core of criminality to be
10 proven at trial." United States v. Heimann, 705 F.2d 662,
11 666 (2d Cir. 1983). Furthermore, "[p]articularly with
12 respect to allegations of time, we have permitted proof to
13 vary from the indictment provided that the proof fell within
14 the period charged." Id. This is especially true where, as
15 here, time is not an element of the charged offense. See
16 id. at 669.
17 Even assuming that the evidence for 2004 through 2006
18 was insufficient, the undisputed evidence from 2007 and 2008
19 fell within the time period charged in the Indictment.
20 Further, the 2007—2008 evidence did not prove criminal
21 activities that were materially different than those in
22 2004—2006. Thus, Appellant was at all times on notice of
6
1 the “core criminality” to be proven at trial. See Heimann,
2 705 F.2d at 666, 669.
3 For similar reasons Appellant cannot show prejudice.
4 He was on notice of the exact crimes charged and could mount
5 a proper defense, and the government cannot retry him for
6 the same 2004—2008 conspiracy. See Dupre, 462 F.3d at 140.
7 Absent prejudice, reversal of the conviction is not merited.
8 In light of the discussion above, we need not determine
9 whether the district court abused its discretion in
10 admitting certain hearsay statements from an unavailable
11 witness. Such an error would be harmless in light of the
12 overwhelming evidence for 2007 and 2008 and our conclusion
13 that no prejudicial variance exists. See United States v.
14 Padilla, 548 F.3d 179, 190 (2d Cir. 2008).
15 Finally, we conclude that Appellant’s life sentence is
16 not substantively unreasonable. We will not "substitute our
17 own judgment for the district court's on the question of
18 what is sufficient to meet the § 3553(a) considerations in
19 any particular case." United States v. Cavera, 550 F.3d 180,
20 189 (2d Cir. 2008). We will "set aside a district court's
21 substantive determination only in exceptional cases where
22 the trial court's decision cannot be located within the
7
1 range of permissible decisions." Id. (emphasis in original)
2 (internal quotations omitted).
3 At Appellant’s sentencing hearing, the district court
4 considered a number of factors including the quantity of
5 drugs involved; Appellant’s leadership role in the
6 organization; his multiple prior convictions including one
7 for attempted murder; and his employment of youths in the
8 criminal conspiracy. In light of these factors, the
9 district court adopted the life sentence recommended in the
10 Presentence Report. Nothing in the record suggests that the
11 district court abused its discretion, and we conclude that
12 the sentence is substantively reasonable.
13 For the foregoing reasons, the judgment of the district
14 court is hereby AFFIRMED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19 By:
8