12-3372 United States Court of Appeals

12-3372
To Be Argued By:
ELISHA J. KOBRE
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 12-3372
UNITED STATES OF AMERICA,
Appellee,
—v.—
MIGUEL ORTIZ,
Defendant-Appellant.
ON APPEAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FROM THE
FOR THE
BRIEF FOR THE UNITED STATES OF AMERICA
PREET BHARARA,
United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
ELISHA J. KOBRE,
JENNIFER G. RODGERS,
Assistant United States Attorneys,
Of Counsel.
TABLE OF CONTENTS
PAGE
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.
The Government’s Case . . . . . . . . . . . . . 2
a.
Events Leading to the January
28, 2011 Heroin Transaction . . . . . 3
b.
The January 28, 2011 Heroin
Transaction . . . . . . . . . . . . . . . . . . . 5
c.
The Cell Site Evidence . . . . . . . . . . 8
d.
The Voice Identification
Evidence. . . . . . . . . . . . . . . . . . . . . 10
e.
The 404(b) Evidence Regarding
the May 28, 2009 Car Stop . . . . . . 12
2.
The Defense Case . . . . . . . . . . . . . . . . . 13
3.
The Verdict . . . . . . . . . . . . . . . . . . . . . . 13
B. The Sentencing . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
POINT I—The District Court Properly Admitted
Evidence of the May 28, 2009 Car Stop . . . . . . 14
A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 14
B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 18
ii
PAGE
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.
The Car Stop Was Properly
Admitted to Show Ortiz’s Knowledge
and Intent . . . . . . . . . . . . . . . . . . . . . . . 21
2.
The 2009 Car Stop Was Properly
Admitted on the Issue of Identity . . . . 23
3.
The District Court Correctly
Determined That the Probative
Value of the Rule 404(b) Evidence
Was Not Substantially Outweighed
by a Danger of Unfair Prejudice . . . . . 26
POINT II—The District Court Properly Admitted
Lay Opinion Voice Identification Evidence . . . 29
A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 29
B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 30
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 34
POINT III—The District Court Properly Exercised
Its Broad Discretion Not to Dismiss the Jury . 38
A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 39
B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 43
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 49
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
iii
PAGE
TABLE OF AUTHORITIES
Cases:
Allen v. United States,
164 U.S. 492 (1896) . . . . . . . . . . . . . . . . . . . . . . . . 45
Arizona v. Washington,
434 U.S. 497 (1978) . . . . . . . . . . . . . . . . . . . . . 43, 44
Bank of China v. NBM LLC,
359 F.3d 171 (2d Cir. 2004) . . . . . . . . . . . . . . 31, 35
Connecticut Bar Ass’n v. United States,
620 F.3d 81 n.13 (2d Cir. 2010) . . . . . . . . . . . . . . 14
Costantino v. Herzog,
203 F.3d 164 (2d Cir. 2000) . . . . . . . . . . . . . . . . . 19
Dowling v. United States,
493 U.S. 342 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 24
Lowenfield v. Phelps,
484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . . . . 46, 50
M.O.C.H.A. Soc’y, Inc. v. City of Buffalo,
689 F.3d 263 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 31
Smalls v. Batista,
191 F.3d 272 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 44
Spears v. Greiner,
459 F.3d 200 (2d Cir. 2006) . . . . . . . . . . . . . passim
United States v. Aminy,
15 F.3d 258 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 22
iv
PAGE
United States v. Arango Correa,
851 F.2d 54 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . 22
United States v. Armedo Sarmiento,
545 F.2d 785 (2d Cir. 1976) . . . . . . . . . . . . . . . . . 33
United States v. Camara,
485 Fed. Appx. 457 (2d Cir. 2012) . . . . . . . . . . . . 27
United States v. Cambindo Valencia,
609 F.2d 603 (2d Cir. 1979) . . . . . . . . . . . . . . 33, 37
United States v. Ceballos,
385 F.3d 1120 (7th Cir. 2004) . . . . . . . . . . . . . . . 37
United States v. Chiarizio,
525 F.2d 289 (2d Cir. 1975) . . . . . . . . . . . . . . . . . 33
United States v. Colon,
880 F.2d 650 (2d Cir.1989) . . . . . . . . . . . . . . . . . . 21
United States v. Crispo,
306 F.3d 71 (2d Cir. 2002) . . . . . . . . 44, 45, 46, 49
United States v. Curley,
639 F.3d 50 (2d Cir. 2011) . . . . . . . . . . . . . . . 18, 19
United States v. Di Geronimo,
598 F.2d 746 (2d Cir. 1979) . . . . . . . . . . . . . . . . . 24
United States v. Doe,
297 F.3d 76 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . 33
United States v. Dukagjini,
326 F.3d 45 (2d Cir. 2003) . . . . . . . . . . . . . . . 20, 28
United States v. Figueroa,
618 F.2d 934 (2d Cir. 1980) . . . . . . . . . . . . . . . . . 27
v
PAGE
United States v. Frady,
456 U.S. 152 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Garcia,
413 F.3d 201 (2d Cir. 2005) . . . . . . . . . . . . . . 36, 37
United States v. Gigante,
729 F.2d 78 (2d Cir. 1984) . . . . . . . . . . . . . . . 44, 49
United States v. Gubelman,
571 F.2d 1252 (2d Cir. 1978) . . . . . . . . . . . . . . . . 23
United States v. Hemmings,
482 Fed. Appx. 640 (2d Cir. 2012) . . . . . . . . . . . . 47
United States v. Hynes,
424 F.2d 754 (2d Cir. 1970) . . . . . . . . . . . . . . 44, 46
United States v. Jennings,
471 F.2d 1310 (2d Cir. 1973) . . . . . . . . . . . . . . . . 47
United States v. LaFlam,
369 F.3d 153 (2d Cir. 2004) . . . . . . . . . . 18, 19, 28
United States v. Lumpkin,
192 F.3d 280 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 25
United States v. Martinez,
446 F.2d 118 (2d Cir. 1971) . . . . . . . . . . . . . . . . . 47
United States v. Mavashev,
455 Fed. Appx. 107 (2d Cir. 2012) . . . . . 31, 34, 35
United States v. McCallum,
584 F.3d 471 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 18
United States v. Mendiola,
707 F.3d 735 (7th Cir. 2013) . . . . . . . . . . . . . 36, 37
vi
PAGE
United States v. Mercado,
573 F.3d 138 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 20
United States v. Nektalov,
461 F.3d 309 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 19
United States v. O’Connor,
580 F.2d 38 (2d Cir. 1978) . . . . . . . . . . . . . . . 48, 51
United States v. Paulino,
445 F.3d 211 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 19
United States v. Pitre,
960 F.2d 1112 (2d Cir. 1992) . . . . . . . . . . . . . . . . 28
United States v. Quinones,
511 F.3d 289 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 20
United States v. Ramirez Amaya,
812 F.2d 813 (2d Cir. 1987) . . . . . . . . . . . . . . . . . 22
United States v. Ramirez,
894 F.2d 565 (2d Cir. 1990) . . . . . . . . . . . . . . . . . 21
United States v. Rigas,
490 F.3d 208 (2d Cir. 2007) . . . . . . . . . . 31, 32, 35
United States v. Robinson,
560 F.2d 507 (2d Cir. 1977) . . . . . . . . . . . . . passim
United States v. Roldan Zapata,
916 F.2d 795 (2d Cir. 1990) . . . . . . . . . . . . . . 19, 27
United States v. Roman,
870 F.2d 65 (2d Cir. 1989) . . . . . . . . . . . 48, 50, 51
United States v. Rommy,
506 F.3d 108 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 32
vii
PAGE
United States v. Rubin,
37 F.3d 49 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . 20
United States v. Ruggiero,
928 F.2d 1289 (2d Cir. 1991) . . . . . . . . . 44, 48, 50
United States v. Sanders,
232 Fed. Appx. 42 (2d Cir. 2007) . . . . . . . . . . 44, 47
United States v. Santiago,
126 Fed. Appx. 21 (2d Cir. 2005) . . . . . . . . . . . . . 50
United States v. Scott,
677 F.3d 72 (2d Cir. 2012) . . . . . . . . . . . 19, 25, 26
United States v. Sommerstedt,
752 F.2d 1494, amended 760 F.2d. 999
(9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United States v. Speed,
272 Fed. Appx. 88 (2d Cir. 2008) . . . . . . . . . . . . . 24
United States v. Tice,
133 F.3d 908 (2d Cir. 1998) . . . . . . . . . . . . . . 23, 24
United States v. Villafuerte,
502 F.3d 204 (2d Cir. 2007) . . . . . . . . . . . . . . 33, 38
United States v. Wernick,
691 F.3d 108 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 33
United States v. Williams,
205 F.3d 23 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . 19
United States v. Winley,
638 F.2d 560 (2d Cir. 1981) . . . . . . . . . . . . . . . . . 44
viii
PAGE
United States v. Yannotti,
541 F.3d 112 (2d Cir. 2008) . . . . . . . . . . . . . . . . . 31
Statutes, Rules & Other Authorities:
Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Fed. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fed. R. Evid. 701, advisory comm. note . . . . . . . . . . 32
Fed. R. Evid. 701(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fed. R. Evid. 701(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fed. R. Evid. 701(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fed. R. Evid. 803(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fed. R. Evid. 901(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . 32
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 12-3372
UNITED STATES OF AMERICA,
Appellee,
—v.—
MIGUEL ORTIZ,
Defendant-Appellant.
BRIEF FOR THE UNITED STATES OF AMERICA
Preliminary Statement
Miguel Ortiz appeals from a judgment of conviction entered on August 13, 2012, in the United States
District Court for the Southern District of New York,
following a six-day trial before the Honorable Denise
Cote, United States District Judge, and a jury.
Indictment 11 Cr. 875 (DLC) was filed on April 6,
2011, in one count. Count One charged Ortiz with, in
or about January 2011, conspiring to distribute and
possess with intent to distribute one kilogram and
more of heroin, in violation of Title 21, United States
Code, Sections 846 and 841(b)(1)(A).
2
Trial against Ortiz began on April 30, 2012 and
concluded on May 7, 2012, when Ortiz was found
guilty on the sole count of the Indictment.
On August 9, 2012, Judge Cote sentenced Ortiz to
151 months’ imprisonment. Judge Cote also sentenced Ortiz to five years’ supervised release, and
imposed a mandatory $100 special assessment.
Ortiz is serving his sentence.
Statement of Facts
A. The Trial
1. The Government’s Case
At trial, the Government established that, in January 2011, Ortiz conspired with others to distribute
and possess with intent to distribute at least six kilograms of heroin. Evidence at trial showed that, on
January 28, 2011, Ortiz borrowed a Chevrolet Tahoe
from a close friend named Kenny Vasquez in Queens,
and drove the Tahoe, carrying approximately six kilograms of heroin secreted in a car battery, to the
Metro Mall in Queens where Ortiz transferred the
heroin to the trunk of a co-conspirator named Omar
Garcia. The evidence presented at trial, which Judge
Cote characterized as “overwhelming” (A. 443, 455), 1
—————
“A.” refers to the appendix filed with Ortiz’s
brief on appeal; “Br.” refers to Ortiz’s brief on appeal;
“GX” refers to a Government Exhibit at trial; “Add.”
refers to the Addendum filed with this brief; and
“PSR” refers to the Presentence Investigation Report
1
3
included testimony of Vasquez, the owner of the Tahoe, that he and Ortiz were the only ones with access
to the Tahoe on January 28, 2011, and cell site evidence showing that: (1) on the night of the heroin
transaction, Ortiz traveled from Vasquez’s house to
the Metro Mall and then back to Vasquez’s house;
and (2) the cell phone used to arrange the heroin
transaction and a cell phone registered in Ortiz’s own
name invariably traveled together during the period
before and after the heroin transaction, showing that
it was Ortiz who possessed the cell phone used to set
up the heroin transaction.
This evidence, together with voice identification
evidence showing that Ortiz was the individual
speaking during multiple phone calls planning the
heroin delivery; testimony by Ortiz’s co-conspirator,
Omar Garcia, that Ortiz delivered the heroin; and
properly admitted Rule 404(b) evidence showing that
Ortiz had previously delivered large sums of cash
that Ortiz knew probably resulted from the sale of
drugs, combined to present powerful circumstantial
proof of Ortiz’s knowing and intentional participation
in the January 28, 2011 six-kilogram heroin transaction.
a.
Events Leading to the January 28,
2011 Heroin Transaction
On January 27, 2011, pursuant to a courtauthorized wiretap of a phone belonging to an indi—————
prepared by the United States Probation Office in advance of Ortiz’s sentencing.
4
vidual named Omar Garcia, the Drug Enforcement
Administration (“DEA”), together with the Union
County Prosecutor’s Office (“UCPO”), intercepted a
call regarding an upcoming six kilogram heroin
transaction. The caller, a man known as “Pina,” told
Garcia in coded language that six kilograms of heroin
would be arriving shortly and that Garcia should arrange to pick up that heroin from the supplier, who
was later identified as Miguel Ortiz, the defendant.
Pina also asked Garcia for his cell phone number so
Pina could provide it to the supplier (Ortiz). (A. 12528; GX 108T). The next day, a number of phone calls,
all of which were in Spanish, were intercepted between Garcia and Ortiz. (GX 102T-107T).
During the initial phone call, Ortiz and Garcia
used prearranged Spanish passwords to confirm their
respective identities: Garcia’s password was “gavilan”
and Ortiz’s password was “fruta.” (A. 127-29;
GX 102T). Ortiz indicated that he was “ready to go
see@ Garcia, and the two agreed to meet later that
night at the parking lot of the Metro Mall in Queens.
(A. 127-29; GX 102T). Garcia arranged to get a ride to
the Metro Mall that evening with his friend Carlos
Zapata, who drives a Toyota Camry. (A. 129). Garcia
also received a call from Pina asking whether Garcia
had received a call yet from the supplier (Ortiz).
(A. 130-31; GX 109, 109T). Garcia replied that he had
received the call and that he, Garcia, was “waiting for
the guy now . . . so I can head on over there.” (Id.).
Following this call, agents intercepted a series of
phone calls between Ortiz and Garcia from about 8:40
p.m. to about 9:04 p.m., during which they updated
5
each other about their respective locations and the
timing of the transaction. On the last call, Ortiz told
Garcia that he, Ortiz, was “behind the trucks” in the
Metro Mall parking lot and was in a Chevrolet Tahoe.
(A. 144-45, GX 107T).
b.
The January 28, 2011 Heroin
Transaction
DEA and UCPO conducted physical surveillance
of the parking lot of the Metro Mall on the evening of
January 28, 2011. (A. 74-77). Special Agent Shane
Todd observed a Toyota Camry (the “Camry”) arrive
at the Metro Mall parking lot at about 8:45 p.m. with
one person, later identified as Carlos Zapata, in the
driver’s seat, and one person in the front passenger
seat. (A. 77-79). From prior physical surveillance,
Special Agent Todd immediately recognized the individual who was sitting in the front passenger seat as
Omar Garcia. (A. 77-79). Special Agent Todd observed the Camry park alongside a Chevrolet Tahoe
(the “Tahoe”). (A. 81, 146). Special Agent Todd also
observed that the trunk of the Camry was open and
saw an individual close the trunk of the Camry, as
though the individual had just placed something into
the trunk of the Camry. This same individual then
walked briskly between the two vehicles around the
front of the Tahoe and got into the front driver’s seat
of the Tahoe. (A. 82-83). Special Agent Todd described
this individual as a short male with medium build
wearing winter clothing, but was not able to see the
individual’s face. (A. 83-84). Special Agent Todd observed that this individual appeared to have no trouble walking. Both cars left the Metro Mall parking
6
lot. (A. 84). Later that night, law enforcement officers
stopped the Camry and recovered from the trunk a
battery containing approximately six kilograms of
heroin. (A. 150-51, 170-71; GX 53A-G, 204).
Omar Garcia, in his testimony at trial, identified
Ortiz as the individual who delivered the car battery
containing the heroin to him on January 28, 2011 at
the Metro Mall. (A. 147-48). 2 Garcia also testified
that, after the Camry was parked next to the Tahoe,
Ortiz got out of the Tahoe, approached the Camry
with a car battery, and placed the battery in the
trunk of the Camry. (A. 146-49). Garcia testified that
law enforcement officers stopped the Camry later
that night, and recovered the car battery containing
about six kilograms of heroin from the trunk. (A. 15051).
Special Agent Todd initially followed the Tahoe as
it left the Metro Mall parking lot, and observed the
color and license number. Records from the New York
State Department of Motor Vehicles (“DMV”) showed
that the Tahoe was at all relevant times registered to
—————
During a proffer session on or about January
19, 2012, Garcia identified two photographs of the
seven he was shown as being individuals who resembled the person who delivered the heroin to Garcia at
the Metro Mall on January 28, 2011. Garcia also indicated that one of these two photographs looked
more like the person who had delivered the heroin;
that photograph was of Miguel Ortiz, the defendant.
(A. 156).
2
7
Kenny Vasquez, residing at a particular address in
Woodhaven, New York. (A. 176; GX 206).
In the week following the heroin transaction, Special Agent Todd conducted physical surveillance in
the vicinity of Vasquez’s address, and observed an individual, later identified as Kenny Vasquez, getting
into the Tahoe and using the Tahoe to perform errands. Special Agent Todd testified that Vasquez did
not resemble the person Special Agent Todd observed
driving the Tahoe on January 28, 2011 in the parking
lot of the Metro Mall. In particular, Special Agent
Todd observed that, unlike the medium-build individual who had walked briskly on January 28, 2011,
Vasquez was “very heavy . . . obese,” appeared to
have a limp, and had difficulty walking and getting
into the Tahoe. (A. 89-91, GX 52A-J).
Kenny Vasquez, who grew up with Ortiz (A. 183),
testified at trial that during 2010 and 2011, Ortiz always had access to Vasquez’s Tahoe, and that Ortiz
was the only one other than Vasquez who had access
to the Tahoe. (A. 176, 178). Vasquez stated that he
typically parked the Tahoe in the vicinity of his house
in Woodhaven, and that he would leave the keys on
the window sill of his house for Ortiz to use whenever
Ortiz wanted. (A. 172-73, 178). Aside from Vasquez’s
wife, who does not drive, no one else other than Ortiz
knew that Vasquez left keys to the Tahoe on the window sill. (Id.). Vasquez also testified that most of the
time Ortiz did not let Vasquez know he was borrowing the car. (A. 178-79). Consistent with Agent Todd’s
observations, Vasquez explained that since at least
8
January 2011 he had had difficulty walking. (A. 17475).
Finally, Vasquez was asked about a particular
2006 gray Ford Freestar which was registered to
Vasquez from in or about January 2009 through at
least January 28, 2011. (A. 87-88; GX 206). Vasquez
testified that, because Ortiz had a prior conviction for
driving under the influence, Vasquez agreed to register Ortiz’s 2006 gray Ford Freestar in Vasquez’s
name. (A. 180-81).
c.
The Cell Site Evidence
Cell site evidence presented at trial centered on
two cellular phones used by Ortiz. The first was a TMobile phone assigned call number 347-925-9507,
which was not registered to a real individual but to
“Victor None” (the “Drug Phone”). The Drug Phone
was the phone that was intercepted communicating
several times with Garcia on January 28, 2011 to arrange the heroin transaction that took place at the
Metro Mall. (A. 235-37; GX 152, 202). The second
phone was an AT&T cell phone assigned call number
646-417-3871, registered to “Miguel Ortiz” with an
address of 1708 Summerfield Street, Apartment A4,
Ridgewood, New York (the “Personal Phone”). The
Personal Phone was seized from Ortiz’s person incident to his arrest on July 14, 2011. (A. 95-97; GX 151,
207).
Cell site evidence presented at trial established
two compelling facts. First, the cell site evidence
showed that the Personal Phone traveled on the night
of the heroin transaction from the vicinity of the
9
home of Kenny Vasquez, the owner of the Tahoe, to
the Metro Mall just in time for the heroin transaction, and right afterwards returned to the vicinity of
Vasquez’s house. Second, cell site evidence established that the Drug Phone—the phone used several
times to communicate with Omar Garcia to arrange
the time and place of the heroin transaction—and the
Personal Phone traveled together over the course of
more than a week, demonstrating that the two
phones were in possession of the same person.
Special Agent Eric Perry, a member of the FBI’s
cellular analysis survey team presented evidence concerning the cell site data retrieved for the Drug
Phone and the Personal Phone. (A. 240-60). Specifically, Special Agent Perry testified that the data
showed based on the sequence of calls, “the cell towers . . . utilized by Ortiz’s personal phone on the night
of January 28, 2011 [are] consistent with travel from
the vicinity of [Vasquez’s house] to the vicinity of the
Metro Mall just before 9 p.m., and then back to the
vicinity of [Vasquez’s house] just after 9 p.m.”
(A. 267). Special Agent Perry also testified that analysis of calls from the Drug Phone showed that it followed the same travel pattern. (A. 267-69, 272;
GX 157). In other words, the cell site location information that Special Agent Perry reviewed for the
Personal Phone and Drug Phone was consistent with
both phones traveling on January 28, 2011 from
Vasquez’s house to the Metro Mall just before the
heroin transaction, which occurred shortly after 9:00
p.m., and then back to Vasquez’s house just after the
heroin transaction.
10
Agent Perry also testified about what the cell site
records showed about the two phones on days other
than January 28, 2011, the date of the heroin transaction. (A. 277-85; 287-88). Agent Perry found that
“over several days [and] different times on those days
. . . the phones were being utilized in the same vicinity of each other, throughout an expansive geographical area.” (A. 278). Indeed, after studying the cell site
records and, specifically, more than 30 occasions
where the phones were used at similar times, Agent
Perry was unable to find a time that the Personal
Phone and Drug Phone were a significant distance
apart. (A. 283-85, 287-88; GX 162).
d.
The Voice Identification Evidence
Evidence at trial also demonstrated that Ortiz
was the user of the Drug Phone on the January 28,
2011 calls with Omar Garcia to arrange the heroin
transaction later that night. (GX 100). As a basis for
comparison, two recordings known to be of Ortiz’s
voice were utilized. The first was a voice exemplar
provided by Ortiz on September 30, 2011 at the U.S.
Attorney’s Office. (A. 192-96; GX 110, 112T-115T,
209). The voice exemplar consisted of Ortiz repeating
sentences in Spanish read to him by a Spanish interpreter and reading an article from a Spanishlanguage publication. (A. 192-93). The second recording of Ortiz’s voice was a conversation that occurred
during a “ruse call” placed to the Personal Phone on
April 21, 2011 by a confidential source working with
DEA. (A. 189-92; GX 208). A male, believed to be
Ortiz, answered the Personal Phone and engaged in a
11
conversation with the confidential source. (GX 116,
117T, 208).
Elizabeth Caruso, a certified Spanish-English interpreter and translator, testified that, in her opinion, the voices in all three sets of Spanish-language
recordings—the intercepted calls over the Drug
Phone, the voice exemplar provided by Ortiz, and the
ruse call to the Personal Phone—were the same.
(A. 196-97). Ms. Caruso, who had prepared Spanish
transcripts and English translations of each of these
recordings (GX 102T-118T), explained that she had
familiarized herself with the recordings by listening
to them several times in the course of transcribing
them. (A. 188, 191-92, 195-96). Based upon specific
similarities in the three sets of recordings that she
presented to the jury, Ms. Caruso testified that, in
her opinion, all three sets of recordings contained the
same voice. (A. 196). Among these similarities, Ms.
Caruso testified that the person in the recordings:
(1) said the word “hello” in a distinctive musical
manner (A. 205-06); (2) used a questioning tone in ordinary sentences (A. 206-08); (3) left off the final “s”
in words ending in “s,” in the manner of Caribbean
Spanish speakers (A. 208-12); (4) pronounced “o” with
an “a” sound in certain words (A. 212-14); and (5) inverted the “r” and “l” sounds in many words, also in
the manner of Caribbean Spanish speakers. (A. 21416). According to Ms. Caruso, while certain of these
characteristics are regional, others are “specific idiosyncracies” not generally seen among Spanish speakers. (A. 217-19). Ms. Caruso also explained that the
pitch, tone, and cadence of the voices in each set of
recordings was the same. (A. 196-97).
12
e.
The 404(b) Evidence Regarding the
May 28, 2009 Car Stop
Michael Krol, a special agent with DEA, testified
that on May 28, 2009, he and other agents stopped
Ortiz who was at the time driving a Ford Freestar
with a specific New York license plate (the “Freestar”). (A. 224). 3 The Freestar was registered to Kenny Vasquez (GX 206), but belonged to Ortiz, who had
asked Vasquez to register the car under Vasquez’s
name to avoid high insurance rates resulting from
Ortiz’s prior conviction for driving while under the
influence. (A. 179-81).
Upon approaching the Freestar, Special Agent
Krol observed that Ortiz appeared very nervous and
failed to make eye contact with the agents. (A. 224).
Agents then performed a consent search of the Freestar and found, in the “rear hatchback” of the Freestar, a black bag containing another bag wrapped in
cellophane, which contained a large sum of United
States currency. (A. 225). Agent Krol further testified
about Ortiz’s statements after the agents had discovered the money:
[Ortiz] did not know who the money belonged to,
[he] only . . . knew that there was money in the bag,
—————
Because Special Agent Krol had difficulty remembering details of the stop, which had occurred
about three years earlier, he was permitted to testify
from a surveillance report he prepared on the day of
the stop as a past recorded recollection. (A. 223-24);
see Fed. R. Evid. 803(5).
3
13
and [ ] he thought it was around $100,000 United
States currency. Ortiz stated that he did not know
the owner of the money and further stated that he
received a phone call after he picked up the money.
He was told whom to give it to. Ortiz stated that the
quote/unquote guy in the blue car gave him the money and that he did not know him. Ortiz stated that
the money was probably derived from the sale of
drugs. Ortiz also stated that he has done things like
this in the past on approximately five other occasions.
(A. 226). Following this testimony, Judge Cote
provided a limiting instruction to the jury. (A. 23435).
2. The Defense Case
Ortiz did not present any witnesses or other evidence.
3. The Verdict
The jury deliberated for approximately three days
before returning a guilty verdict against Ortiz.
(A. 441).
B. The Sentencing
In anticipation of Ortiz’s sentencing, the Probation Office calculated the applicable Guidelines
Range under the United States Sentencing Guidelines (the “Guidelines”) to be 168 to 210 months’ imprisonment, and recommended a sentence of 168
months’ imprisonment. (PSR at 15-16). On August 9,
2012, Judge Cote calculated a Guidelines range of
14
151 to 168 months’ imprisonment, 4 and sentenced
Ortiz to 151 months’ imprisonment to be followed by
five years of supervised release, and imposed a $100
special assessment. (A. 455-56).
ARGUMENT
POINT I
The District Court Properly Admitted Evidence of
the May 28, 2009 Car Stop 5
A. Relevant Facts
After Ortiz made a pretrial motion requesting notice of any evidence to be offered at trial pursuant to
Federal Rule of Evidence 404(b), the Government
—————
Judge Cote settled on a lower Guidelines range
than that found by the Probation Office because she
decided not to count one of Ortiz’s prior criminal convictions, which changed his Criminal History Category to Category I instead of Category II. (A. 454).
4
In Ortiz’s Statement of Issues Presented for
Appeal he indicates that an issue presented is whether there was “sufficient evidence to support the judgment” (Br. 4), but Ortiz fails to present any challenge
to the sufficiency of the evidence in his brief. As a result, Ortiz has waived any sufficiency argument and
the Government does not address this claim further
herein. See Connecticut Bar Ass’n v. United States,
620 F.3d 81, 91 n.13 (2d Cir. 2010).
5
15
submitted a brief in which it described in detail the
evidence it sought to elicit concerning the May 28,
2009 car stop (the “Car Stop”), and the legal basis for
its admission. (Add. 6-11). Specifically, the Government argued that the evidence was highly relevant to
the defendant’s knowledge and intent regarding the
charged crime. (Add. 9-11). Judge Cote denied Ortiz’s
motion in a brief order dated March 19, 2012
(Add. 14), subsequently explaining that the denial
was to Ortiz’s motion for notice, given that the Government provided notice in its brief (A. 32-33).
At a pretrial conference on April 24, 2012, the parties sought a ruling on the substance of the Car Stop
evidence. (A. 17-18). Defense counsel argued that the
evidence should be excluded because it was extremely
prejudicial to Ortiz. (A. 33). The Government responded that the evidence was highly relevant to the
contested issues of identity and knowledge. (A. 3435). The District Court reserved decision on whether
the evidence should be admitted, but noted that it did
not identify any unfair prejudice in the Car Stop evidence that would render it inadmissible under Federal Rule of Evidence 403. (A. 39).
On April 30, 2012, the District Court issued its
ruling, finding that the Car Stop evidence was admissible to show knowledge, and that, while determining
it to be a closer call, also finding it admissible to show
identity. (A. 48-51). Judge Cote ascertained that the
parties would not mention the Car Stop evidence in
opening statements, and stated that she might
change her mind depending on how the evidence developed. Specifically, the District Court suggested
16
that the defense may not contest knowledge and intent with respect to how the narcotics were concealed,
but noted that knowledge and intent likely would be
relevant anyway given evidence of the defendant’s
participation on recorded phone calls setting up the
drug transaction. Judge Cote also indicated that defense counsel could raise the issue again later if he
wished. (A. 51). Defense counsel did not raise the issue again.
Accordingly, after thorough argument and consideration, evidence of Ortiz’s prior conduct and statements on May 28, 2009 was admitted into evidence
under Rule 404(b) for its relevance to the issues of
identity and knowledge/intent.
After the relevant testimony, Judge Cote instructed the jury as follows:
Ladies and gentlemen, at the conclusion
or near the end of this morning’s session
you heard testimony from an officer regarding events that occurred in May of
2009. I would like to now give you a
charge with respect to how you should
consider, if at all, evidence about those
events in May of 2009.
Let me remind you that the defendant is
not on trial for committing any acts that
are not alleged in the indictment. Accordingly, you may not consider evidence
of the events of May 28, 2009 as a substitute for proof that the defendant
committed the crime with which he is
17
charged in the indictment nor may you
consider this evidence as proof that the
defendant has a criminal personality or
bad character.
Evidence of the events of May 28, 2009
was admitted for much more limited
purposes and you may consider it for
those limited purposes only.
First, evidence of these events was admitted for whatever light you find it
sheds, if any, on the identity of a person
who possessed and transferred a battery
in January of 2011. If you find that, taken together, the events of May 28, 2009
are sufficiently similar to those of January 2011 to establish the existence of a
pattern of behavior or modus operandi,
you may, but are not required to, use
this fact in determining whether the defendant was the person who possessed
and transferred a battery in January
2011.
Evidence of the events of May 28, 2009
was also admitted for whatever probative value, if any, you find it sheds on
the defendant’s knowledge of the contents of the battery and intent in transferring it, if you find, of course, that the
defendant was the person who transferred the battery, and on whether the
defendant acted because of innocent
18
mistake or accident in connection with
the events of January 2011.
Evidence of the events of May 2009 may
not be considered by you for any other
purpose. Specifically, you may not use
this evidence to conclude that because
the defendant was involved in the 2009
event, he must have committed the
crime charged in the indictment.
Thank you.
(A. 234-35).
B. Applicable Law
Rule 404(b) allows the admission of uncharged
crimes, wrongs, or other acts for purposes other than
for proving propensity, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b). This Court “has adopted an ‘inclusionary’ approach to other act evidence under Rule
404(b), which allows such evidence to be admitted for
any purpose other than to demonstrate criminal propensity.” United States v. LaFlam, 369 F.3d 153, 156
(2d Cir. 2004); see also United States v. Curley, 639
F.3d 50, 56 (2d Cir. 2011); United States v.
McCallum, 584 F.3d 471, 474-75 (2d Cir. 2009). To
determine whether a district court properly admitted
other act evidence, this Court considers “whether
(1) it was offered for a proper purpose; (2) it was relevant to a material issue in dispute; (3) its probative
value is substantially outweighed by its prejudicial
effect; and (4) the trial court gave an appropriate lim-
19
iting instruction to the jury if so requested by the defendant.” United States v. LaFlam, 369 F.3d at 156;
accord United States v. Curley, 639 F.3d at 56-57.
Rule 403 of the Federal Rules of Evidence authorizes the exclusion of relevant evidence only if its
“probative value is substantially outweighed by the
danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. All evidence of guilt is, of course, prejudicial, in the sense of disadvantaging the defense, but
that is not the same as being “unfairly” prejudicial.
Costantino v. Herzog, 203 F.3d 164, 174 (2d Cir. 2000)
(ABecause virtually all evidence is prejudicial to one
party or another, to justify exclusion under Rule 403
the prejudice must be unfair.”). Evidence that is neither “more sensational” nor “more disturbing” than
the charged crimes will not be deemed unfairly prejudicial. United States v. Roldan-Zapata, 916 F.2d
795, 804 (2d Cir. 1990); United States v. Williams,
205 F.3d 23, 33-34 (2d Cir. 2000); see also United
States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006).
This Court “review[s] the district court’s determination of admissibility under Rule 404(b) only for
abuse of discretion.” United States v. Scott, 677 F.3d
72, 79 (2d Cir. 2012) (citing United States v. Brand,
467 F.3d 179, 196 (2d Cir. 2006)). A district court has
“broad discretion” over the admission of evidence.
United States v. Nektalov, 461 F.3d 309, 318 (2d Cir.
2006). Consequently, its evidentiary rulings will be
reversed “only when the court has acted arbitrarily or
irrationally.” Id. (internal quotation marks omitted).
20
This deferential standard applies with particular
force to a district judge’s balancing of probative value
against the dangers of unfair prejudice. See, e.g.,
United States v. Mercado, 573 F.3d 138, 142 (2d Cir.
2009); United States v. Quinones, 511 F.3d 289, 310
(2d Cir. 2007). The district court, after all, “sees the
witnesses, the parties, the jurors, and the attorneys,
and is thus in a superior position to evaluate the likely impact of the evidence.” United States v. Quinones,
511 F.3d at 310 (internal quotation marks and citation omitted). Moreover, courts “reviewing a challenge to a Rule 403 balancing . . . must look at the evidence in a light most favorable to its proponent,
maximizing its probative value and minimizing its
prejudicial effect.” United States v. Rubin, 37 F.3d 49,
53 (2d Cir. 1994) (internal quotation marks omitted).
Even when evidence is improperly admitted at
trial, that error is subject to harmless error analysis,
under which “[r]eversal is necessary only if the error
had a substantial and injurious effect or influence in
determining the jury’s verdict.” United States v.
Dukagjini, 326 F.3d 45, 61-62 (2d Cir. 2003).
C.
Discussion
The facts of the Car Stop were highly probative
both as to the identity of the heroin supplier who
drove the Tahoe to the Metro Mall on January 28,
2011 and to the defendant’s knowledge of the contents of the car battery delivered that night and his
intent to enter into the drug transaction, all of which
the defendant put in issue at the trial. Moreover,
Ortiz has identified no unfair prejudice from the Car
21
Stop evidence, and Judge Cote gave an appropriate
limiting instruction to the jury. Accordingly, Judge
Cote did not abuse her substantial discretion in admitting the Car Stop evidence against Ortiz.
1. The Car Stop Was Properly Admitted to
Show Ortiz’s Knowledge and Intent
As a threshold matter, while not an issue raised
by Ortiz on this appeal, Ortiz’s knowledge and intent
were relevant because Ortiz never unequivocally conceded these elements of the offense at trial. See, e.g.,
United States v. Colon, 880 F.2d 650, 656-57 (2d
Cir.1989); see also United States v. Ramirez, 894 F.2d
565, 568 (2d Cir. 1990) (holding that when the defendant “disavows awareness that a crime was being
perpetrated” and the government bears the burden of
proving knowledge “as an element of the crime,
knowledge is properly put in issue”). Indeed, Ortiz
not only did not concede knowledge or intent, but he
affirmatively raised the knowledge issue during his
summation: “They [the Government] ha[s] to prove to
you beyond a reasonable doubt . . . that Miguel Ortiz
knew what was in that battery, if he actually had the
battery . . .” (A. 343).
Four important similarities between the Car Stop
evidence and the evidence at trial made it significantly more likely that Ortiz was not merely an unwitting
deliveryman bringing a car battery to the Metro Mall.
First, the Car Stop evidence established that by his
own admission, Ortiz had, on six prior occasions, previously worked in the drug business. (A. 226). Second,
Ortiz’s role when he worked in the drug business was
22
that of a deliveryman for narcotics proceeds. Third,
on both occasions, Ortiz used a vehicle registered to
his friend Kenny Vasquez. Finally, in both instances,
the item being transported by Ortiz was concealed in
some fashion: during the Car Stop drug money was
inside of a suitcase, then inside another bag wrapped
in cellophane, and in the case on trial the heroin was
secreted inside of a car battery. (A. 151, 170, 225,
GX 1, 53A-G, 204). As Judge Cote found, these four
points of similarity provided ample support for admitting the Car Stop testimony. (A. 46-50).
This analysis comports with this Court’s precedents in this area. Where a defendant’s knowledge
and intent to distribute or possess with intent to distribute narcotics are at issue, this Court has held
that the Government is permitted to introduce evidence of the defendant’s prior narcotics activity. See
United States v. Arango Correa, 851 F.2d 54, 60 (2d
Cir. 1988) (“To meet [the defendant’s] defense that he
was merely on hand to assist [a co-defendant] in receiving a shipment of paper and that he had no
knowledge of the true nature of the shipment, the
government’s offer of proof that [the defendant] was
familiar with narcotics transactions was clearly relevant
and
probative.”);
United
States
v.
Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (affirming admission of 404(b) evidence of defendant’s
prior attempt to import cocaine into the United
States to rebut defendant’s argument that he was not
involved in charged cocaine importations); United
States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994)
(“Where . . . defendant does not deny that he was present during a narcotics transaction but simply denies
23
wrongdoing, evidence of other arguably similar narcotics involvement may . . . be admitted to show
knowledge.”).
2. The 2009 Car Stop Was Properly Admitted
on the Issue of Identity
One of the main thrusts of Ortiz’s defense at trial
focused on identity, and whether or not he was the
person who delivered the heroin at the Metro Mall.
(See, e.g., A. 70) (defense opening asserting that
“[w]hat you’re not going to hear, what you’re not going to see, is anyone who can conclusively say they
saw Miguel Ortiz at the Metro Mall parking lot in
Queens on the night of January 28, 2011”); (A. 319)
(defense summation arguing that “you are going to
find reasonable doubt about whether or not Miguel
Ortiz was involved in this incident at all.”).
For this reason, the evidence of the Car Stop was
highly probative. With respect to the admissibility of
prior acts evidence under Rule 404(b) to prove identity, the touchstone is simply relevance. See, e.g., United States v. Tice, 133 F.3d 908, 908 (2d Cir. 1998)
(“The fact that Tice had previously been convicted for
growing plants in the same location made it more
likely than not that it was he, rather than someone
else, who had grown the plants in this instance. The
prior conviction, therefore, was admissible under
Rule 404(b) to establish identity.”); United States v.
Gubelman, 571 F.2d 1252, 1255 (2d Cir. 1978) (“Thus,
we find that the question of identity was a real one.
The similar acts evidence was relevant to that issue”); id. at 1255 (rejecting the proposition “that only
24
unique signature crimes are admissible under the rubric of identity”); United States v. Speed, 272 Fed.
Appx. 88, 91-92 (2d Cir. 2008) (affirming district
court’s admission of evidence about defendant’s prior
robbery conviction pursuant to Rule 404(b) to prove
identity as “[t]he evidence disclosed that the 1986
robbery shared certain distinctive methods with the
charged crimes, including using a ski mask, wearing
dark clothes and gloves, and planning to steal the victim’s vehicle for the getaway.”); United States v. Di
Geronimo, 598 F.2d 746, 753-754 (2d Cir. N.Y. 1979)
(affirming admission of Rule 404(b) evidence because
“[t]he prior hijacking also occurred at Kennedy Airport and was committed in a similar fashion” and
“[t]he selling of stolen merchandise occurred in the
same bar where [the defendant] allegedly sold the
stolen sweaters.”). See also Dowling v. United States,
493 U.S. 342, 355 (1990) (evidence of defendant’s prior robbery admitted under Rule 404(b) where on both
occasions he wore a ski mask and carried a small pistol).
Ortiz primarily complains that the Car Stop was
not sufficiently similar to the charged conduct for
admission under Rule 404(b). But Ortiz’s use in both
instances of a car registered to his friend Vasquez to
transport narcotics and narcotics proceeds that have
been concealed in some fashion well exceeds the similarities that have been regularly deemed sufficient to
permit Rule 404(b) evidence to prove identity. See,
e.g., Dowling v. United States, 493 U.S. at 355 (ski
mask and small pistol in robbery case); United States
v. Tice, 133 F.3d at 908 (marijuana plants grown in
same location); United States v. Di Geronimo, 598
25
F.2d at 753-754 (2d Cir. 1979) (crimes occurred in
same locations).
None of Ortiz’s other assertions to the contrary
has merit. First, Ortiz seems to mistake the nature of
the identity evidence; it is not an eyewitness identification issue (see Br. 32-33), but rather relates to the
significant similarities between the Car Stop and the
charged crime—including that both instances involved: (1) the use of cars registered to Ortiz’s friend
Kenny Vasquez; (2) the transportation and delivery of
narcotics or narcotics proceeds; and (3) the secretion
of those narcotics or narcotics proceeds in a closed receptacle. The circumstances of the Car Stop—and
Ortiz’s statement thereafter that the cash was “probably” derived from the sale of drugs and that he had
previously transported money on approximately five
other occasions—are directly relevant to whether
Ortiz was the person who delivered the heroin in
Kenny Vasquez’s Tahoe on January 28, 2011. 6
—————
The two cases cited by Ortiz are entirely inapposite. In United States v. Lumpkin, 192 F.3d 280,
287 (2d Cir. 1999), this Court held that an officer’s
testimony that “he often saw [the defendant] in the
area where the relevant drug transactions occurred”
was not evidence of a crime or bad act and therefore
fell outside the scope of Rule 404(b). In United States
v. Scott, 677 F.3d at 82, this Court held that testimony of police officers that they had numerous and
sometimes lengthy conversations with the defendant
before his arrest was improper under Rule 404(b) because the defendant had taken the issue of identity
6
26
For these reasons, the Car Stop was properly admitted under Rule 404(b) to prove identity—i.e., that
it was Ortiz who drove the Tahoe with a car battery
containing heroin to the Metro Mall and transferred
that heroin to a co-conspirator.
3. The District Court Correctly Determined
That the Probative Value of the Rule
404(b) Evidence Was Not Substantially
Outweighed by a Danger of Unfair
Prejudice
Contrary to Ortiz’s assertions (Br. 37), Judge Cote
carefully considered, on the record, whether allowing
evidence of the Car Stop would create a danger of unfair prejudice, and correctly rejected that argument.
(A. 39-40) (“I don=t find that the defendant has identi—————
out of the case by admitting from the outset that it
was the defendant “who was engaged in the behavior
that led police to believe they had observed a drug
sale.” Because “nothing in the defense case, from
opening to close, even remotely raised the issue of
identity,” the defendant’s prior contacts with the police were not relevant to the issue of identity. Id. at
83. Scott, then, is an entirely different case. Here,
there was no law enforcement witness at trial who
identified Ortiz. Evidence of the Car Stop, therefore,
was properly not limited to “identification” as it was
the circumstances of that encounter, such as the car
driven, the contents of the car, and Ortiz’s explanation, that were important to show the similarities between the two events.
27
fied any unfair prejudice. Of course, [identity] information against the defendant is prejudicial. That’s
what a trial is about. So Rule 403 speaks to unfair
prejudice. It is not inflammatory or unfairly prejudicial in any other way I can think of to introduce the
2009 evidence.”). Judge Cote’s analysis was correct.
Evidence is unfairly prejudicial “only when it tends to
have some adverse effect upon a defendant beyond
tending to prove the fact or issue that justified its
admission into evidence.” United States v. Figueroa,
618 F.2d 934, 943 (2d Cir. 1980). It is
well-established in the Rule 404(b) context that
“[p]robative value is not outweighed by prejudicial
effect when the prior similar bad acts do not involve
conduct more inflammatory than the charged crime
or . . . conduct any more sensational or disturbing
than the crimes charged.” United States v. Camara,
485 Fed. Appx. 457, 460 (2d Cir. 2012) (internal citations and quotation marks omitted); United States v.
Roldan-Zapata, 916 F.2d at 804. The “fact that evidence may be ‘damning’ does not render it inadmissible.” Id. (citing United States v. Cirillo, 468 F.2d
1233, 1240 (2d Cir. 1972)).
Evidence relating to the Car Stop was no more
sensational than the evidence of the charged crime
presented at trial. The Rule 404(b) evidence related
to Ortiz’s prior involvement in transporting drug proceeds, while the trial involved the transportation of
six kilograms of heroin. Moreover, the value of the
heroin Ortiz was charged with transporting was far
greater than the $100,000 he had transported when
he was stopped in 2009. (A. 73-74) (value of one kilogram of heroin is approximately $60,000). In these
28
circumstances, the admission of the Rule 404(b) evidence did not elicit an emotional or otherwise inappropriate response from the jury. See United States v.
Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (admitting
evidence of prior narcotics transactions in narcotics
case where other act evidence “did not involve conduct any more sensational or disturbing than the
crimes with which [the appellants were] charged”). In
addition, as described above, Judge Cote gave a clear
and emphatic limiting instruction to the jury, which
instruction is not challenged on appeal. (A. 234-35).
For these reasons, evidence of the Car Stop was
properly admitted under Rule 404(b). See LaFlam,
369 F.3d at 156.
Finally, to the extent any error existed here, it
was entirely harmless in light of the other overwhelming evidence of Ortiz’s guilt. See United States
v. Dukagjini, 326 F.3d at 61-62. The uncontested evidence showed that only two individuals—Ortiz and
Kenny Vasquez—had access to the Tahoe used to deliver six kilograms of heroin to the Metro Mall on
January 28, 2011, and that Vasquez’s physical characteristics were entirely inconsistent with surveillance evidence of the deliveryman. Moreover, Ortiz’s
presence at the Metro Mall at the time of the transaction and his presence in the vicinity of Vasquez’s residence just before and afterwards—which the jury
could reasonably have inferred was to borrow and
then return Vasquez’s Tahoe—were established
through cell site data. Lay opinion testimony demonstrated that it was Ortiz’s voice on the intercepted
calls over the Drug Phone arranging the heroin
transaction. And, the recipient of the heroin, Omar
29
Garcia, an admitted drug dealer, identified Ortiz in
court as the person who delivered the heroin to him
at the Metro Mall on January 28, 2011. From all of
this, Judge Cote correctly deemed the evidence in this
case “overwhelming.” (A. 443, 455).
POINT II
The District Court Properly Admitted Lay Opinion
Voice Identification Evidence
Ortiz complains that the Government’s voice identification testimony improperly comprised expert testimony and argues that—while he failed to object to
such testimony—it should not have been admitted.
(Br. 40-47). This argument should be rejected.
A. Relevant Facts
Prior to trial, the Government made a motion in
limine to elicit lay opinion testimony on the issue of
whether the defendant’s voice appeared on certain
recordings. (Add. 15-20). Specifically, in its motion
the Government described the testimony it intended
to elicit and the witness who would be providing the
testimony, arguing that it should be permitted to
provide this testimony to the jury because it was
permissible under relevant case law and would be
helpful to the jury, particularly because the witness
was a Spanish interpreter and the relevant calls were
in Spanish. (Add. 15-20).
At a pretrial conference to discuss, among other
things, the Government’s motion, defense counsel in-
30
dicated that he had no objection to the testimony described. (A. 17).
At trial, as had been previewed by the Government, Elizabeth Caruso testified that based on her
review of the known samples of Ortiz’s voice and her
comparison of the known samples to the calls on the
Drug Phone, she believed that the unknown male
whose voice appeared on the Drug Phone calls was
Ortiz. (A. 196, 197, 216). During her testimony, Ms.
Caruso made clear that her opinion was based on her
personal observations, because she had listened several times to the intercepted calls, the voice exemplar
provided by Ortiz, and the voice on the ruse call to
Ortiz’s Personal Phone. (A. 217).
Ms. Caruso was never offered as an expert witness
to the jury, was not treated as an expert witness by
the parties or the District Court, and in fact testified
that she had never testified as an expert in the field
of voice identification. (A. 217). Ms. Caruso was asked
certain questions—without objection—concerning her
qualifications as a Spanish language interpreter
(A. 184-87) and the methods she used in becoming
familiar with the various recordings that served as
the basis for her testimony (A. 187-93). In order to
explain some of the characteristics of the voice she
identified as Ortiz’s, Ms. Caruso also described some
terms used to describe different features voices can
have, such as pitch, tone, and cadence (A. 196-97).
B. Applicable Law
“Under Rule 701, a lay witness’ testimony ‘in the
form of opinions or inferences is limited to those opin-
31
ions or inferences which are (a) rationally based on
the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge
within the scope of Rule 702.’ ” United States v. Yannotti, 541 F.3d 112, 125 (2d Cir. 2008) (quoting Fed.
R. Evid. 701).
“A witness’s specialized knowledge, or the fact
that he was chosen to carry out an investigation because of this knowledge, does not render his testimony ‘expert’ as long as it was based on his ‘investigation and reflected his investigatory findings and conclusions, and was not rooted exclusively in his expertise . . . .’ ” United States v. Rigas, 490 F.3d 208, 224
(2d Cir. 2007) (quoting Bank of China v. NBM LLC,
359 F.3d 171, 181 (2d Cir. 2004)) (concluding the district court did not abuse its discretion in allowing a
lay witness to testify about an organization’s fraudulent financial conduct where that witness made
first-hand observations and was well aware of the organization’s financial misstatements); see also Bank
of China v. NBM LLC, 359 F.3d at 181-82 (“The fact
that Huang has specialized knowledge, or that he
carried out the investigation because of that
knowledge, does not preclude him from testifying
pursuant to Rule 701, so long as the testimony was
based on the investigation and reflected his investigatory findings and conclusions, and was not rooted
exclusively in his expertise in international banking.”); M.O.C.H.A. Soc’y, Inc. v. City of Buffalo, 689
F.3d 263, 279 (2d Cir. 2012) (following Bank of China); United States v. Mavashev, 455 Fed. Appx. 107,
32
113 (2d Cir. 2012) (affirming admissibility of lay opinion testimony regarding mortgage: “While [the agent]
occasionally defined certain technical terms, such as
‘flip deal’ and ‘straw buyer,’ he only defined these
terms in order to describe specific facts in this case.”).
“If, however, the witness’s testimony was ‘not a
product of his investigation, but rather reflected [his]
specialized knowledge,’ then it [is] impermissible expert testimony.” United States v. Rigas, 490 F.3d at
224 (quoting Bank of China, 359 F.3d at 182); see
Fed. R. Evid. 701, advisory committee’s note to 2000
amend. (noting that under Rule 701 “lay testimony
results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.”) (internal quotation marks and
citation omitted).
Specifically, lay opinion testimony regarding voice
identification is admissible pursuant to Federal Rule
of Evidence 901(b)(5), which provides that identification of a voice as that of a particular person may
properly be admitted through testimony of “[a]n opinion identifying a person’s voice—whether heard
firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at
any time under circumstances that connect it with
the alleged speaker.” Fed. R. Evid. 901(b)(5).
This Court has repeatedly upheld the admissibility of lay opinion testimony regarding voice identification. See, e.g., United States v. Rommy, 506 F.3d
108, 138 (2d Cir. 2007) (affirming admissibility of lay
opinion testimony identifying a voice under Rule
33
901(b)(5)); United States v. Cambindo Valencia, 609
F.2d 603, 640 (2d Cir. 1979) (witness properly identified defendant based on listening to voice exemplar);
United States v. Armedo-Sarmiento, 545 F.2d 785,
792 (2d Cir. 1976) (“We have on several occasions
held that voice identification may be adequate although the witness and the speaker have never personally met”); United States v. Chiarizio, 525 F.2d
289, 296 (2d Cir. 1975) (affirming trial court’s admission of agent’s testimony identifying voice on a tape
as the defendant’s, holding that “expert qualification
is not required for voice identification”).
Where, as here, a defendant fails to raise his claim
of procedural error in the district court, this Court
will review only for plain error. United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007); United States
v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). To establish plain error, a defendant must establish (1) error (2) that is plain and (3) that affects substantial
rights. United States v. Villafuerte, 502 F.3d at 209.
Even if the error meets these initial requirements,
this Court then considers whether to exercise its discretion to correct it, “which is appropriate only if the
error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.’ ” Id. (quoting United States v. Doe, 297 F.3d 76, 82 (2d Cir.
2002)). The Supreme Court has cautioned that reversal for plain error should “be used sparingly, solely in
those circumstances in which a miscarriage of justice
would otherwise result.” United States v. Frady, 456
U.S. 152, 163 n.14 (1982).
34
C.
Discussion
Ms. Caruso’s testimony was properly admitted
and considered by the jury, as it satisfied all of the
Rule 701 requirements. First, Ms. Caruso’s testimony
was “rationally based on [her own] perception,” Fed.
R. Evid. 701(a), because, as she explained, it was
based entirely upon having listened several times to
the intercepted calls, the voice exemplar, and the
ruse call. (A. 188, 191-92, 195-96). While Ms. Caruso
used certain terms like “tone,” “pitch” and “cadence,”
it is clear that those terms were used “in order to describe specific facts in this case,” see United States v.
Mavashev, 455 Fed. Appx. at 113, in other words, as a
way to describe to the jury how she reached her conclusion based on those personal observations. Similarly, when Ms. Caruso indicated that certain characteristics of Ortiz’s speech—like substituting an “a”
sound for an “o”—were not common errors, she again
was describing to the jury how she determined that
the voices in the different samples were the same.
(A. 212).
Second, identification of the voice on the intercepted calls was clearly “a fact in issue” and Ms. Caruso’s testimony was “helpful . . . to determining” the
identity of the speaker on those calls. Fed. R. Evid.
701(b). Finally, as demonstrated by Ms. Caruso’s detailed explanation of the bases for her opinion—the
multiple similarities in the voice samples that were
presented to the jury, through audio clips—Ms. Caruso’s testimony was “not based on scientific, technical,
or other specialized knowledge within the scope of
Rule 702.” Fed. R. Evid. 701(c). As such, Ms. Caruso’s
35
testimony satisfied each and every one of the Rule
701 requirements for opinion testimony by lay witnesses, and was entirely proper.
Contrary to Ortiz’s claims, the fact that Ms. Caruso’s training and experience with the Spanish language were elicited does not automatically mean she
was qualified or testified as an expert witness. Again,
as this Court has repeatedly held, “[a] witness’s specialized knowledge, or the fact that he was chosen to
carry out an investigation because of this knowledge,
does not render his testimony ‘expert’ as long as it
was based on his ‘investigation and reflected his investigatory findings and conclusions, and was not
rooted exclusively in his expertise . . . .’ ” Rigas, 490
F.3d at 224; Bank of China, 359 F.3d at 181; Mavashev, 455 Fed. Appx. at 113. Ms. Caruso’s familiarity with the Spanish language was certainly relevant
and helpful insofar as it enabled her more easily to
analyze the voices in the recordings. A non-Spanish
speaker likely would be less able to immediately
identify similarities or differences in the voices of
Spanish speakers because he or she would not understand what was being said. But the fact remains that
Ms. Caruso did not offer an opinion about the substance of what was being said—that was covered by
stipulations between the parties. (GX 205, 208, 209).
Ms. Caruso testified and offered an opinion about
whose voice was heard on the recordings, a topic explicitly reserved by operation of Rule 901(b)(5) and
the case law interpreting it for lay witness testimony
of the exact kind elicited here. Ms. Caruso’s Spanish
language background and knowledge merely provided
the basis for her personal investigation, see, e.g., Ri-
36
gas, 490 F.3d at 224, which she conducted by listening several times to the voices on the recordings and
identifying similarities that were then presented for
the jury’s own independent consideration.
Indeed, this Court has explicitly approved presenting a Spanish-language interpreter as a lay witness to provide voice identification testimony. See
United States v. Garcia, 413 F.3d 201, 207 n.3 (2d
Cir. 2005). In Garcia, a “monitoring interpreter” who
had listened to both an intercepted call regarding a
drug transaction and a voice exemplar provided by
the defendant provided lay opinion testimony that it
was the defendant’s voice on the intercepted call. This
Court expressly approved the interpreter’s lay opinion voice identification testimony, noting that “the
prosecution did not present the interpreter as an expert in voice identification, but as a lay witness who
had acquired considerable familiarity with the intercepted voices from her work monitoring the wiretap.”
United States v. Garcia, 413 F.3d at 207 n.3 (citing
Fed. R. Evid. 701). In so holding, this Court considered the fact that “the prosecution invited the jury to
make its own comparison of Garcia’s voice exemplar
with the voice it contended was his on the intercepted
tapes.” Garcia, 413 F.3d at 207.
Other courts likewise have rejected precisely the
argument made by Ortiz. For example, in United
States v. Mendiola, 707 F.3d 735, 739-740 (7th Cir.
2013), the Seventh Circuit expressly dismissed the
defendant’s argument that a “DEA linguist” who provided lay opinion voice identification testimony was
“a wolf in sheep’s clothing—or rather an expert in a
37
lay witness’s clothing . . .” The Seventh Circuit noted
that “[e]xperts in other areas of law enforcement . . .
are routinely used as lay voice identification witnesses, as they are the ones who have often heard the
wiretap, or had an interview with a suspect.” United
States v. Mendiola, 707 F.3d at 739-740. The Mendiola court also noted that “[n]ot surprisingly, prosecutors frequently enlist language interpreters and
translators to identify voices in court as they are the
ones who have listened intently to the recorded or
overheard conversations.” Id. at 739. See, e.g., Garcia,
413 F.3d at 207 n.3 (“monitoring interpreter” identified voice); see also United States v. Ceballos, 385
F.3d 1120, 1124 (7th Cir. 2004). 7
Moreover, contrary to Ortiz’s assertion (Br. 47), no
special instruction to the jury was needed to address
how the jury should treat Ms. Caruso’s testimony because it was not remotely presented as expert testimony. Indeed, not only was Ms. Caruso’s testimony
not based on scientific, technical, or specialized
knowledge, instead involving readily perceived idiosyncratic voice patterns, but these examples of Ortiz’s
voice patterns were, during the course of Ms. Caruso’s testimony, actually presented to the jury by Ms.
—————
The sole case cited by Ortiz, United States v.
Cambindo Valencia, 609 F.2d at 640, does not support his position. In Cambindo Valencia—where, unlike the present case, the defendant had preserved an
objection—this Court held that the district court did
not abuse its discretion in qualifying an interpreter
as an expert to provide a voice identification. Id.
7
38
Caruso so that the jurors could form their own conclusions as the finders of fact. And the jurors demonstrated that they were aware of their proper role in
this regard; during the deliberations, the jury specifically requested to listen to the audio recordings of the
Spanish-language intercepted calls no fewer than
three times, showing that the jurors well understood
that they alone were charged with determining the
identity of the voice on the intercepted calls. (A. 391,
398, 407, Court Exhibits 5, 7, 9).
Accordingly, Ms. Caruso’s lay opinion testimony
regarding the voice on the intercepted calls was consistent with Rule 701 and was entirely proper. Ortiz
has failed to establish any error with respect to Ms.
Caruso’s testimony, let alone plain error—i.e., “error
seriously affect[ing] the ‘fairness, integrity, or public
reputation of the judicial proceedings.’ ” Villafuerte,
502 F.3d at 209.
POINT III
The District Court Properly Exercised Its Broad
Discretion Not to Dismiss the Jury
Ortiz assigns error to Judge Cote’s Friday afternoon charge to the jury that they should continue to
deliberate on Monday. Ortiz argues that given the
events to that point in the deliberations, no further
charge should have been given and a mistrial should
have been declared, and claims that the fact that the
jury disclosed that they were divided 11-1 for conviction renders the District Court’s charge inherently
coercive. (Br. 48-51). Ortiz’s argument fails and
should be rejected.
39
A. Relevant Facts
Jury deliberations began at approximately 12:35
p.m. on Wednesday, May 2, 2012 (A. 389) and continued through the end of that day and into the afternoon of the next day. During that time, the jury sent
multiple notes asking to review some of the evidence
and asking for the answer to a legal question. (A. 391413). At about 2:25 p.m. on May 3, less than two
hours after the last transcript pages were sent in to
them in response to a jury note (see A. 413), the jury
sent out a note stating: “[w]e are at an impasse and
cannot come to a unanimous decision on a verdict.”
(A. 414). After consulting with counsel and without
objection, Judge Cote provided the jury with the following instruction:
We are all aware that you have been deliberating carefully on this case and you
have sent us a stream of notes and
asked to see some of the testimony and
listened to recordings and I know that
you have a number of the exhibits. But,
nonetheless, I am going to ask you to return and continue your deliberations.
And let me say a few things about this.
This case is important to the government and it is important to the defendant. It is important to both of them, that
if at all possible you reach a unanimous
verdict. They have no reason to believe
that any other jury would be in a better
position to do that than you are right
40
now. And at this point I would like you
to turn to page 39 of your charges. And I
want to read the passage that begins
with the last paragraph on that page.
“As you deliberate, please listen to the
opinions of your fellow jurors, and ask
for an opportunity to express your own
views. Every juror should be heard. No
one juror should hold center stage in the
jury room and no one juror should control or monopolize the deliberations. If,
after listening to your fellow jurors and
if, after stating your own view, you become convinced that your view is wrong,
do not hesitate because of stubbornness
or pride to change your view. On the
other hand’—and I want to emphasize
this—’do not surrender your honest convictions and beliefs solely because of the
opinions of your fellow jurors or because
you are outnumbered. Your final vote
must reflect your conscientious belief as
to how the issues should be decided.”
Now, I know that you have been deliberating. I know you are trying to be careful, good, responsible jurors, but I ask
you to return to the jury room and continue your deliberations with these
comments in mind.
Thank you.
(A. 416-17).
41
At approximately 4:15 p.m., the jury sent out another note asking to be dismissed early for the day
and stating “[t]he issues of impasse are being considered and a request has been made to ‘sleep on it.’ We
will reconvene tomorrow, Friday morning to continue
your deliberations.” (A 417). After consulting with
counsel, and without objection, Judge Cote dismissed
the jury for the day. (A. 418).
The following day, Friday, May 4, 2013, the jury
deliberated through the morning, then sent a note
between 12:45 p.m. and 2:00 p.m. asking for guidance
on the law. (See A. 421). Judge Cote consulted with
counsel concerning the note; counsel had no objection
to the District Court’s proposed response to the jury.
(A. 421-30). After receiving Judge Cote’s instruction
on the law, at about 2:27 p.m., the jury returned and
continued to deliberate until late Friday afternoon, at
about 4:05 p.m., at which time the jury sent the following note:
Judge Cote, I am sorry to inform you
that, even after additional deliberations,
we have reached an irreconcilable impasse. We do not come to this conclusion
lightly and do not believe that additional
time or deliberation will change the situation.
One of the jurors has difficulty with the
fundamental facts of the case; and, as a
consequence, we cannot come to a unanimous verdict. The juror requested last
night to sleep on it, but even after a full
day of deliberation today, there is no
42
movement on the juror’s position regarding the government’s proof of the defendant’s involvement in the conspiracy
beyond a reasonable doubt.
(A. 430-31).
Defense counsel then requested that Judge Cote
declare a mistrial arguing: “I don’t see how giving
them more time, giving them the weekend, or giving
them whatever time is going to resolve their difference in light of the language that they used in the
note.” (A. 431-32). The Government, noting that the
jury had deliberated all day and had just recently,
within the last two hours, asked for legal instruction
on a fairly complicated issue, asked that the jury return on Monday to continue deliberating. (A. 432).
Judge Cote decided to ask the jury to return on Monday, and provided the following instruction to the jury:
We are all very appreciative of how hard
you have been working. It is after 4:00
on Friday, and I am going to dismiss you
for the day, but I am going to ask you to
return on Monday at 9:30. I want to underscore again that there is no reason to
believe that this jury—well, let me put it
this way. There is no reason to believe
that trying this case a second time will
result in any material change with respect to the record to be presented to a
jury, so it is our hope that you can reach
a unanimous verdict, understanding of
43
course that no one should give up a conscientiously held belief.
So I am hoping that the weekend’s
break, maybe now having the weekend,
coming Monday morning at 9:30 with
fresh energy, hopefully a couple good
nights’ rest will permit you to continue
your deliberations and reach a verdict in
this case. This is, I know, probably difficult news for you because you have been
working hard for these days, indeed, all
this week. But that is my request of you.
Thank you.
(A. 433-34).
The jury returned in the morning on Monday, May
7, 2012 to continue its deliberations, submitted a note
asking one legal question which was addressed by the
District Court (A. 437-44), and, at approximately
11:05 a.m., the jury returned its guilty verdict
against Ortiz (A. 441).
B. Applicable Law
A district court has broad discretion in determining the appropriate response when a jury advises
that it is unable to reach a verdict, and its decision
whether to grant or deny a mistrial based on the jury’s stated inability to reach agreement is accorded
great deference. See Arizona v. Washington, 434 U.S.
497, 510 (1978). “[T]he rationale for this deference in
the ‘hung’ jury situation is that the trial court is in
the best position to assess all the factors which must
44
be considered in making a necessarily discretionary
determination whether the jury will be able to reach
verdict if it continues to deliberate.” Arizona v. Washington, 434 U.S. at 510 n.28; see United States v. Winley, 638 F.2d 560 (2d Cir. 1981). A district court’s decision to deny a mistrial based on reported deadlock
—and, instead, to deliver supplemental instructions
designed to encourage continued deliberations—will
be upheld unless it is determined that the court
abused its discretion in so deciding. See United States
v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002); United
States v. Gigante, 729 F.2d 78, 82 (2d Cir. 1984).
This Court has refused to “draw fine lines” that
would “circumscribe the trial court’s discretion” in determining when and under what circumstances a
supplemental charge is appropriate, United States v.
Hynes, 424 F.2d 754, 758 (2d Cir. 1970), and has
made clear that a district judge may properly require
a jury to continue deliberations even when the jury
declares itself deadlocked. See, e.g., Spears v. Greiner,
459 F.3d 200 (2d Cir. 2006); United States v. Sanders,
232 Fed. Appx. 42 (2d Cir. 2007); United States v.
Crispo, 306 F.3d at 76-77; Smalls v. Batista, 191 F.3d
272, 278 (2d Cir. 1999). Indeed, “a jury’s statement
that it currently is deadlocked is, by itself, an insufficient ground for declaring a mistrial.” United States
v. Sommerstedt, 752 F.2d 1494, 1497 (9th Cir.),
amended, 760 F.2d 999 (9th Cir. 1995).
“[T]his circuit has consistently reaffirmed its approval of the supplementary charge to encourage a
verdict in the face of an apparent deadlock.” United
States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991)
45
(quotations omitted) (collecting cases). “The propriety
of such a so-called Allen-type charge depends on
whether it tends to coerce undecided jurors into
reaching a verdict by abandoning without reason conscientiously held doubts.” United States v. Robinson,
560 F.2d 507, 517 (2d Cir. 1977) (citing United States
v. Green, 523 F.2d 229, 236 (2d Cir. 1975)); see
Crispo, 306 F.3d at 77.
An assessment of whether or not a supplemental
instruction (or instructions) has resulted in improper
coercion requires an individualized determination
based on all of the facts and circumstances of a given
case. See Spears v. Greiner, 459 F.3d at 205 (citing
Lowenfield v. Phelps, 484 U.S. 231, 237-38 (1988)).
The Supreme Court and this Court have considered a
variety of supplementary charges designed to encourage jurors to reach a unanimous verdict in the face of
apparent deadlock, including the “traditional” Allen
charge, a “modified” Allen charge, and a charge falling into neither of those categories which merely asks
the jury to continue its deliberations. The first of
these was first approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501 (1896). The
instruction upheld in Allen encouraged jurors in the
minority to reconsider their views and stated in particular, that:
it [was the jurors’] duty to decide the
case if they could conscientiously do so;
[that they] should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting ju-
46
ror should consider whether his doubt
was a reasonable one which made no
impression upon the minds of so many
men, equally honest, equally intelligent
with himself. If, upon the other hand,
the majority were for acquittal, the minority ought to ask themselves whether
they might not reasonably doubt the correctness of a judgement which was not
concurred in by the majority.
Id.
In the years since Allen was decided, many courts,
including the Supreme Court and this Court, have
reaffirmed the propriety of supplemental instructions
containing language similar to that given in Allen.
See, e.g., Lowenfield v. Phelps, 484 U.S. at 237-38;
Crispo, 306 F.3d at 77; United States v. Hynes, 424
F.2d at 757-58 (2d Cir. 1970) (collecting cases; “we
are satisfied that the so-called ‘Allen charge’ does not
unconstitutionally deprive a defendant of his right to
a unanimous verdict rendered upon the conscientious
consideration of twelve impartial jurors”).
While this “traditional” Allen charge has long
been approved, courts have observed that a portion of
the charge may pose a risk of improper coercion, particularly the language that could be construed as pitting the majority of jurors against the minority, asking the minority to reconsider its views. See Lowenfield, 484 U.S. at 237-38 (reasoning that a charge
that, unlike the “ ‘traditional Allen charge,’ does not
speak specifically to the minority jurors” is less coercive). Thus, this Court has repeatedly approved of the
47
so-called “modified” Allen charge, which treats the
majority and the minority equally and advises each to
listen to the views of the other, while exhorting jurors
not to yield their conscientious convictions. United
States v. Sanders, 232 Fed. Appx. at 43 (approving
supplemental charge to a deadlocked jury characterized “as a modified Allen charge. . . because, although
it directed the jurors to attempt to reach agreement,
it did not ask the jurors holding the minority position
to reconsider their views.”); see also United States v.
Hemmings, 482 Fed. Appx. 640, 644 (2d Cir. 2012);
Spears, 459 F.3d at 205 (“In more recent times, courts
have tended to use ‘modified’ Allen charges that do
not contrast the majority and minority positions.”).
This Court has moreover held that such a charge is
also acceptable “when the judge has learned that the
jury was deadlocked 11 to 1 in favor of conviction. . . .” United States v. Martinez, 446 F.2d 118,
119-20 (2d Cir. 1971); United States v. Robinson, 560
F.2d at 517 (“The fact that the judge knew that there
was a lone dissenter does not make the charge coercive inasmuch as the nature of the deadlock was disclosed to the Court voluntarily and without solicitation.”); United States v. Jennings, 471 F.2d 1310,
1313-14 (2d Cir. 1973) (affirming “Allen-type” charge
where jury voluntarily advised that it stood 11 to 1
for conviction).
This Court has also recognized that supplemental
charges directing a jury reportedly deadlocked to continue deliberating may not be Allen charges at all.
See, e.g., Spears, 459 F.3d at 204 (noting that “courts
have held that a ‘judge’s simple request that the jury
continue deliberating . . .’ can not be ‘properly consid-
48
ered an Allen charge’ ”) (quoting United States v.
Prosperi, 201 F.3d 1335, 1341 (11th Cir. 2000)); United States v. Roman, 870 F.2d 65, 77 (2d Cir. 1989)
(characterizing as not a “real Allen charge” district
court’s charge which was “merely a clarification of the
jurors’ individual responsibilities without an exhortation that they reach a decision”). In Spears, for example, this Court held that where “the charge did not
urge the jurors to listen to the views of other jurors
with whom they disagreed or attempt to persuade
each other,” but merely to “continue . . . deliberations
with a view toward arriving at a verdict if that’s possible,” the charge was inherently non-coercive despite
the absence of “specific cautionary language” admonishing jurors not to surrender their own conscientiously held beliefs. Spears, 459 F.3d at 206.
Moreover, this Court has held that it “does not regard a repeated Allen charge as inevitably coercive.”
United States v. Ruggiero, 928 F.2d at 1299; United
States v. Roman, 870 F.2d at 77 (noting that “even a
second charge imploring a decision would not be per
se error”); United States v. O’Connor, 580 F.2d 38, 44
(2d Cir. 1978) (“we find no merit to the objection to
the giving of two modified Allen charges”); Robinson,
560 F.2d at 517-18 (finding no abuse of discretion in
district court’s decision to give a second Allen-type
charge and noting that “the fact that the jury deliberated for three hours between the Allen-type charges
and for more than four hours after the second such
charge before reaching its verdict are strong indications that the effect of the charge was minimal”).
49
C.
Discussion
The District Court did not abuse its discretion by
asking the jury, after it had reportedly reached an
impasse for the second time late Friday afternoon, to
return on Monday to continue its deliberations.
First, and contrary to Ortiz’s argument, it was
well within Judge Cote’s broad discretion to ask the
jury to return on Monday to continue deliberations.
See Crispo, 306 F.3d at 77; United States v. Gigante,
729 F.2d at 82. While this was the second time the
jury had reported that their deliberations had stalled,
the jury had, for more than a full day after first reporting an impasse, continued to deliberate constructively—including posing a complex legal question
mid-day on Friday. The length of deliberations after
Thursday’s modified Allen charge—which included
the cautionary language recommended by this Court
about not yielding conscientiously held beliefs—
demonstrates the lack of any arguable coercive effect
from that first charge. See Robinson, 560 F.2d at
517-18 (finding no abuse of discretion in district
court’s decision to give a second Allen-type charge in
part based upon “the fact that the jury deliberated for
three hours between the Allen-type charges . . . [is a]
strong indication[ ] that the effect of the charge was
minimal”).
Moreover, the jury’s second report of impasse
came late on a Friday afternoon, after a full week of
trial, and after a somewhat complex question regarding the law. Under these circumstances, Judge Cote
properly exercised her significant discretion to ask
the jury to return Monday to continue its delibera-
50
tions. See, e.g., United States v. Santiago, 126 Fed.
Appx. 21, 23 (2d Cir. 2005) (holding that “district
courts have broad discretion to determine under what
circumstances and how the [Allen-type] charge
should be given”).
Second, the request Friday afternoon that the jury
return to continue deliberations on Monday was not
an Allen-type charge at all, as it contained none of
the arguably coercive language encouraging jurors to
reconsider their views. Instead, Judge Cote merely
told the jury that there was no reason to believe that
trying the case a second time would result in a material change in the record, and asked that the jury
continue deliberating Monday after a weekend’s rest.
(A. 433-34). As a result, it cannot have been error for
the District Court to merely ask the jury to continue
its deliberations. See Spears, 459 F.3d at 204; Roman,
870 F.2d at 77.
Even if such a request could somehow be considered an Allen-type charge, however, Judge Cote specifically included the approved cautionary language,
noting that “of course [ ] no one should give up a conscientiously held belief.” (A. 433-34). This cautionary
language—while unnecessary given the lack of any
coercive element to Judge Cote’s request that the jury
return after the weekend—nonetheless further reinforces its non-coercive nature. See, e.g., Lowenfield,
484 U.S. at 241 (upholding Allen charge containing
language that jurors not surrender “honest belief ”);
Ruggiero, 928 F.2d at 1299 (upholding Allen-type instruction where it “included . . . the sort of cautionary
language counseling jurors not to surrender any con-
51
scientiously held views that we have usually deemed
to negate coercion”). Accordingly, under this Court’s
well-settled law, Judge Cote’s Friday afternoon instruction cannot be deemed an abuse of discretion.
While Ortiz does not expressly argue that part of
the Friday afternoon charge’s coerciveness stems
from the fact that it was not the first charge given to
the jury in response to a deadlock note, this does not
change the analysis. As indicated above, this Court
has regularly refused to find multiple Allen charges
coercive. See, e.g., Roman, 870 F.2d at 77; O=Connor,
580 F.2d at 44; Robinson, 560 F.2d at 517-18. A fortiori, then, Judge Cote=s request that the jury rest over
the weekend and continue deliberating on Monday,
complete as it was with cautionary language, was entirely appropriate and non-coercive. Ortiz’s assertion
to the contrary should be rejected.
52
CONCLUSION
The judgment
affirmed.
Dated:
of
conviction
should
be
New York, New York
June 4, 2013
Respectfully submitted,
PREET BHARARA,
United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
ELISHA J. KOBRE,
JENNIFER G. RODGERS,
Assistant United States Attorneys,
Of Counsel.
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules
of Appellate Procedure, the undersigned counsel
hereby certifies that this brief complies with the typevolume limitation of Rule 32(a)(7)(B). As measured by
the word processing system used to prepare this brief,
there are 12,426 words in this brief.
PREET BHARARA,
United States Attorney for the
Southern District of New York
By: JENNIFER G. RODGERS,
Assistant United States Attorney
ADDENDUM
Add. 1
Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
UNITED STATES OF AMERICA
:
-v.-
:
11 Cr. 875 (DLC)
MIGUEL ORTIZ,
:
Defendant.
:
------------------------------------x
GOVERNMENT’S RESPONSE TO
DEFENDANT’S OMNIBUS MOTION
PREET BHARARA
United States Attorney for the
Southern District of New York
One St. Andrew’s Plaza
New York, New York 10007
NIKETH VELAMOOR
Assistant United States Attorney
-Of Counsel-
Add. 2
Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 2 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
UNITED STATES OF AMERICA
:
-v.-
:
11 Cr. 875 (DLC)
MIGUEL ORTIZ,
:
Defendant.
:
------------------------------------x
GOVERNMENT’S RESPONSE TO DEFENDANT’S OMNIBUS MOTION
The United States of America, by its attorney, Preet Bharara, United States Attorney for
the Southern District of New York, Niketh Velamoor, Assistant United States Attorney, of
counsel, respectfully submits this response to the omnibus pretrial motion filed by defendant
Miguel Ortiz (“Ortiz” or “defendant”).
BACKGROUND
The defendant is charged in a one-count Indictment with participating in a conspiracy to
distribute one kilogram and more of heroin, in violation of Title 21, United States Code, Section
846. On or about January 13, 2012, the defendant filed a motion seeking an order directing the
Government: (1) to disclose co-conspirators’ statements and prior bad acts; (2) to comply with its
obligations under Brady v. Maryland; (3) to retain all rough notes taken by law enforcement
officers in the course of the investigation; (4) to provide Jencks Act material to the defendant
prior to trial; (5) not to cross examine the defendant about his prior conviction for criminal
mischief; (6) to disclose any prior bad acts it intends to cross-examine the defendant about or
offer in its direct case, and suppressing any such evidence; (7) to disclose a written summary of
Add. 3
Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 3 of 13
any expert testimony it intends to introduce; and (8) permitting the defendant to make additional
motions based on new information. The Government addresses each of these in turn below.
ARGUMENT
I.
Defendant’s Motion to Compel the Government to File a Bill of Particulars and
to Disclose Co-Conspirator Statements and Other Crimes By Co-Conspirators
A bill of particulars is required only where the indictment is so general that it does not
advise the defendant of the specific acts of which he is accused. United States v. Torres, 901
F.2d 205, 234 (2d Cir. 1990) (citations omitted); United States v. Gibson, 2001 WL 460935, at
*3 (S.D.N.Y. May 1, 2001) (“[A] bill of particulars is not a matter of right.”). A motion for a bill
of particulars should be granted only where necessary (1) to inform the accused of the charge
against him with sufficient precision to enable him to prepare his defense and avoid surprise; and
(2) to enable the accused to interpose a plea of double jeopardy should he be prosecuted a second
time for the same offense. See Wong Tai v. United States, 273 U.S. 77, 82 (1927); United States
v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). In addition, if the information sought by a
defendant is provided in the indictment or through some other means, a bill of particulars is not
necessary. See Bortnovsky, 820 F.2d at 574.
“It is not enough that the information would be useful to the defendant; if the defendant
has been given adequate notice of the charges against him, the government is not required to
disclose additional details about its case.” United States v. Payden, 613 F. Supp. 800, 816
(S.D.N.Y. 1985). Further, supplying evidentiary detail is not the function of the bill of
particulars. See Torres, 901 F.2d at 234. “[A] bill of particulars is not a general investigative
tool, a discovery device, or a means to compel the government to disclose evidence or witnesses
to be offered prior to trial.” Gibson, 2001 WL 460935, at *6; United States v. Strawberry, 892 F.
Supp. 519, 526 (S.D.N.Y. 1995). It is not the function of a bill of particulars to allow defendants
2
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Filed 01/27/12 Page 4 of 13
to preview the evidence or theory of the Government’s case. United States v. Taylor, 707 F.
Supp. 696, 699 (S.D.N.Y. 1989) (citations omitted); United States v. Persico, 621 F. Supp. 842,
868 (S.D.N.Y. 1985).
In this case, the defendant is specifically requesting the production of co-conspirator
statements that the Government intends to offer at trial. The defendant’s request should be
denied. Rule 16 does not authorize discovery of statements made by co-conspirators, codefendants or witnesses. See, e.g., United States v. Santiago, 174 F. Supp. 2d 16, 38 (S.D.N.Y.
2001) (citing United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974)). See also Fed. R.
Crim. P. 16(a)(2) (“Nor does this rule authorize the discovery or inspection of statements made
by prospective government witnesses except as provided in 18 U.S.C. § 3500.”)
In any event, the Government has already provided the defendant with statements by coconspirators in furtherance of the defendant’s conspiracy. Among other things, the Government
filed a Complaint describing statements made in furtherance of the conspiracy and has produced
hundreds of pages of discovery, including, but not limited to, recordings and draft
transcriptions/translations of intercepted conversations involving the defendant and certain of his
co-conspirators prior to the defendant’s arrest. Therefore, even if the defendant was entitled to
discovery of co-conspirator statements, his motion should be denied given the nature and extent
of the Government’s discovery production.
In addition, the defendant further seeks an order compelling the Government to provide
early disclosure of any crimes or wrongs committed by each of the defendant’s co-conspirators.
Just as there is no basis to compel the Government to provide co-conspirator statements in Rule
16 discovery, there is also no basis to compel the Government to produce information about
crimes or bad acts committed by co-conspirators. In essence, the defendant appears to be
3
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Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 5 of 13
seeking early disclosure of material required under Giglio v. United States, 405 U.S. 150, 154
(1972), and its progeny. The Government is aware of its Giglio obligations and will provide
Giglio material in a timely manner prior to trial.
Finally, although it is unclear from the defendant’s motion papers, the defendant also
appears to be seeking an order compelling the Government to provide notice of any evidence the
Government intends to produce under Rule 404(b). In that regard, the Government notes that, by
letter dated November 7, 2011, the Government informed the defendant of the following:
[I]t is the Government’s present intention to offer at trial either as direct evidence of the
charged conspiracy or pursuant to Rule 404(b), Fed. R. Evid., evidence of other criminal
activity by the defendant as proof of the defendant’s motive, intent, preparation, plan,
knowledge and absence of mistake or accident. The evidence will establish, among other
things, that on or about May 28, 2009, the defendant was arrested in Queens. At the time
of the defendant’s arrest, agents recovered a large quantity of United States currency
inside the vehicle in which the defendant was traveling. Among other things, the
defendant stated that the money was probably derived from the sale of drugs, and that he
had done similar things in the past on approximately 5 other occasions.
To the extent the Government intends to offer evidence of other “bad acts” under Rule
404(b), the Government will similarly provide notice to the defendant reasonably in advance of
trial. See Fed. R. Crim. P. 404(b).
II.
The Defendant’s Motion to Compel the Government to Provide Brady Material
Next, the defendant seeks an order compelling the Government to produce exculpatory
material under Brady v. Maryland, 373 U.S. 83 (1963). The Government recognizes its Brady
obligations. To date, the Government is unaware of any Brady material regarding the defendant,
but will provide timely disclosure if any such material comes to light. To the extent the
defendant is seeking discovery of Giglio or Jencks Act materials, the Government will provide
these materials in a timely manner before trial.
4
Add. 6
Case 1:11-cr-00875-DLC Document 16
III.
Filed 01/27/12 Page 6 of 13
The Defendant’s Motion to Compel Law Enforcement Officers to Retain Rough
Notes of Interviews
The defendant requests that government agents be required to keep rough notes so as to
enable the Court to determine if disclosure of the notes is required under Brady or the Jencks
Act. The Government is aware of its obligations under Brady and the Jencks Act and will
comply with its obligations as appropriate.
IV.
The Defendant’s Motion for Early Access to Jencks Act Materials
The defendant seeks an order compelling the Government to produce Jencks Act material
prior to the opening statements at trial. Consistent with its normal practice, the Government
intends to produce Jencks Act material on the Friday before the trial in this matter commences on
Monday, April 30, 2012.
V.
The Defendant’s Motion Pursuant to Rule 609
Next, the defendant moves to preclude the Government from cross-examining the
defendant about his misdemeanor conviction for Criminal Mischief in the Fourth Degree, which
resulted in a sentence of 3 years probation. Given that Fed. R. Crim. P. 609(a)(1) generally
allows impeachment by evidence only of crimes “punishable by death or imprisonment in excess
of one year,” and the defendant’s criminal mischief conviction was a misdemeanor conviction,
the Government does not intend to cross-examine the defendant about this conviction.
To the extent the defendant is seeking an order compelling the Government to disclose
any convictions or bad acts that it does intend to cross-examine the defendant with, there is no
authority for the defendant’s request (and the defendant has not cited any).
VI.
Defendant’s Motion for Disclosure and Suppression of All Rule 404(b) Evidence
Next, the defendant seeks an order compelling the Government to disclose any prior bad
acts it intends to cross-examine the defendant about and/or offer under Rule 404(b). As
5
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Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 7 of 13
described above, the Government has provided notice that it intends to offer evidence of the
defendant’s May 28, 2009 arrest in Queens, at which time agents recovered a large quantity of
United States currency inside the vehicle in which the defendant was traveling. (As mentioned
above, in connection with that arrest, the defendant stated, among other things, that the money
was probably derived from the sale of drugs, and that he had done similar things in the past on
approximately 5 other occasions.) The Government submits that this evidence is plainly
admissible under Rule 404(b) to rebut any claim by the defendant that he lacked the requisite
knowledge or intent to commit the charged crime, or to prove his motive, opportunity,
preparation, plan, or absence of mistake or accident with respect to the charged crime.
It is well settled that “other acts” evidence is admissible under Rule 404(b) so long as the
evidence: (1) is advanced for a proper purpose; (2) is relevant to the crimes for which the
defendant is on trial; and (3) has probative value that is not substantially outweighed by any
unfair prejudicial effect. If requested, such evidence must be admitted with limiting instructions
to the jury. See United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993); United States v.
Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) (citing Huddleston v. United States, 485 U.S. 681,
691-92 (1988)); United States v. Smith, 727 F.2d 214, 219-20 (2d Cir. 1984); United States v.
Siegal, 717 F.2d 9, 16-17 (2d Cir. 1983); United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.
1988) (“[O]ther acts or crimes are admissible under Rule 404(b) to prove matters other than the
defendant’s criminal propensity”).
The Second Circuit takes an “‘inclusionary’ approach to the admission of prior-act
evidence,” under which “evidence of prior crimes, wrongs, or acts is admissible for any purpose
other than to show a defendant’s criminal propensity.” United States v. Lasanta, 978 F.2d 1300,
1307 (2d Cir. 1992) (citations and internal quotations omitted) (emphasis in original); United
6
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Filed 01/27/12 Page 8 of 13
States v. Gelzer, 50 F.3d 1133, 1139-40 (2d Cir. 1995) (allowing circumstantial evidence from
prior unrelated and uncharged robbery where it established defendant’s connection to a weapon
used in present case). The Court has broad latitude in determining whether to admit evidence
pursuant to Rule 404(b), and its ruling will be reviewed only for abuse of discretion. See United
States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994); United States v. Brady, 26 F.3d 282, 286 (2d
Cir. 1994). Where a defendant raises a defense based on motive, opportunity, intent, knowledge,
or mistake, 404(b) is admissible to rebut such a defense. See Zackson, 12 F.3d at 1182 (“Where
a defendant claims that his conduct has an innocent explanation, prior act evidence is generally
admissible to prove that the defendant acted with the state of mind necessary to commit the
offense charged”) (citing United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987)).1
1
With respect to the timing of the Government’s introduction of evidence under Rule
404(b), the Second Circuit has held that “as a general rule, the offer of evidence to prove the
defendant’s intent or knowledge should await the conclusion of the defendant’s case. However,
where it is apparent that intent will be in dispute, evidence of prior or similar acts may be
introduced during the government’s case-in-chief.” United States v. Pitre, 960 F.2d 1119, 1120
(2d Cir. 1992); see Inserra, 34 F.3d at 90 (“[A]dmission of similar act evidence to prove intent or
knowledge . . . is admissible during the Government’s case-in-chief if it is apparent that the
defendant will dispute that issue.”). Thus, in order to forestall the admission of their prior crimes
in the Government’s case-in-chief, defendants must clearly and unequivocally remove
knowledge and intent from the case:
‘When the Government offers prior act evidence to prove an issue,
counsel must express a decision not to dispute that issue with
sufficient clarity that the trial court will be justified (a) in
sustaining objection to any subsequent cross-examination or jury
argument that seeks to raise the issue and (b) in charging the jury
that if they find all the other elements established beyond a
reasonable doubt, they can resolve the issue against the defendant
because it is not disputed.’
United States v. Nachamie, 101 F. Supp.2d 134, 138-39 (S.D.N.Y. 2000) (quoting United States
v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980)).
7
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Filed 01/27/12 Page 9 of 13
Where a defendant’s knowledge and intent to distribute or possess with intent to
distribute narcotics are at issue, the Second Circuit has held that the Government is permitted to
introduce evidence of the defendant’s prior narcotics activity. See United States v. ArangoCorrea, 851 F.2d 54, 60 (2d Cir. 1988) (“To meet [the defendant’s] defense that he was merely
on hand to assist [a co-defendant] in receiving a shipment of paper and that he had no knowledge
of the true nature of the shipment, the government’s offer of proof that [the defendant] was
familiar with narcotics transactions was clearly relevant and probative.”); United States v.
Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (affirming admission of 404(b) evidence of
defendant’s prior attempt to import cocaine into the United States to rebut defendant’s argument
that he was not involved in charged cocaine importations).
The defendant’s knowledge and intent is in issue unless the defendant has unequivocally
conceded that element of the offense. See, e.g., United States v. Colon, 880 F.2d 650, 656-57
(2d Cir. 1989); Peterson, 808 F.2d at 974; see also United States v. Ramirez, 894 F.2d 565, 568
(2d Cir. 1990) (holding that when the defendant “disavows awareness that a crime was being
perpetrated” and the government bears the burden of proving knowledge “as an element of the
crime, knowledge is properly put in issue”). The defendant’s intent is also directly put in issue
when there is an argument that the defendant was “merely present” at the place where the alleged
offense occurred, and was not involved in any illegal activity. See Aminy, 15 F.3d at 260
(“Where, for example, the defendant does not deny that he was present during a narcotics
transaction but simply denies wrongdoing, evidence of other similar narcotics involvement may,
in appropriate circumstances, be admitted to show knowledge or intent.”); Zackson, 12 F.3d at
1182 (“Where a defendant claims that his conduct has an innocent explanation, prior act
evidence is generally admissible to prove that the defendant acted with the state of mind
8
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Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 10 of 13
necessary to commit the offense charged.”); Pitre, 960 F.2d at 1117 (holding that evidence of
prior narcotics transactions was properly admitted “to show that [the defendants] were ‘not there
just to be standing there’ on the night of their arrests”); United States v. Fernandez, 829 F.2d
363, 367 (2d Cir. 1987) (per curiam).
Here the defendant has not articulated any reason why the Government’s proffered
404(b) evidence should not be admitted. Rather, the defendant generally argues that the
probative value of any 404(b) evidence that the Government might offer in this case “will be far
outweighed by the prejudicial effect to the Defendant.” The defendant’s blanket objection to any
Rule 404(b) evidence is unpersuasive.
Evidence is unfairly prejudicial “only when it tends to have some adverse effect upon a
defendant beyond tending to prove the fact or issue that justified its admission into evidence.”
United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). A “[d]efendant must show some
undue prejudice, apart from the prejudice implicit in Rule 404(b) evidence.” United States v.
Vargas, 702 F. Supp. 70, 72-73 (S.D.N.Y. 1988) (emphasis added). Furthermore, the “fact that
evidence may be ‘damning’ does not render it inadmissible.” Id. (citing United States v. Cirillo,
468 F.2d 1233, 1240 (2d Cir. 1972)).
The reality is that the proposed 404(b) evidence is no more sensational than the evidence
of the charged crime that will be presented at trial. The defendant is charged with conspiring
with others to distribute and possess with intent to distribute heroin, while the Government’s
proffered Rule 404(b) evidence relates to the defendant’s prior involvement in, at a minimum,
transporting drug proceeds, which is closely related conduct in furtherance of a drug conspiracy.
Critically, the proffered evidence does not include significantly larger quantities of narcotics, the
possession of guns or other more significant crimes. In these circumstances, there is no danger
9
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Filed 01/27/12 Page 11 of 13
that the admission of the above-described evidence will elicit an emotional or otherwise
inappropriate response from the jury. See Pitre, 960 F.2d at 1120 (admitting evidence of prior
narcotics transactions in narcotics case where other acts evidence “‘did not involve conduct any
more sensational or disturbing than the crimes with which [the appellants were] charged’”)
(quoting United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir. 1990) (summarily rejecting
argument that probative value of drug paraphernalia evidence admitted under 404(b) was
outweighed by danger of unfair prejudice)). Accordingly, none of the proffered Rule 404(b)
evidence should be excluded under Rule 403. Therefore, that evidence is admissible under Rules
404(b) and 403 to prove the defendant’s knowledge, intent, opportunity, planning, preparation,
and lack of mistake or accident with respect to the charged narcotics offense.
In any event, if the Court admits the evidence under 404(b), the Court may minimize any
unfair prejudice to the defendant with a limiting instruction to remind the jury that the defendant
is not on trial for any offense other than the crime charged. See United States v. Tussa, 816 F.2d
58, 68 (2d Cir. 1987) (limiting instruction sufficient to preclude prejudice to defendant); see
generally Parker v. Randolph, 442 U.S. 62, 75 n.7 (1979) (“The ‘rule’
indeed, the premise
upon which the system of jury trials functions under the American judicial system is that juries
can be trusted to follow the trial court’s instructions.”). Accordingly, the Government should be
permitted to offer the proffered evidence if the defense does not remove the above-referenced
issues from the case.
VII.
Defendant’s Motion for a Written Summary of Expert Testimony
Next, the defendant seeks an order compelling the Government to provide a written
summary of expert testimony it intends to introduce in its case in chief. Although the
Government has not yet determined whether it will offer expert testimony in this case, the
10
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Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 12 of 13
Government is aware of its obligations under Rule 16 and will comply with those obligations to
the extent they become applicable.
VIII. Permission to File Additional Motions
Lastly, the defendant requests permission to file additional motions on the basis of new
information as it becomes available. The Government does not object to the defendant filing
additional motions based on information not already disclosed to the defendant.
CONCLUSION
For the reasons set forth above, the requests that the Court deny the defendant’s
motion in its entirety.
Respectfully submitted,
PREET BHARARA
United States Attorney
By: /s/ Niketh Velamoor
Niketh Velamoor
Assistant United States Attorneys
Tel.: (212) 637-1076
cc: Joseph A. Lobosco, Esq. (By ECF)
11
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Case 1:11-cr-00875-DLC Document 16
Filed 01/27/12 Page 13 of 13
Certificate of Service
Filed Electronically
The undersigned attorney, duly admitted to practice before this Court, hereby certifies that on the
below date, he/she served or caused to be served the following document(s) in the manner
indicated:
Government’s Response to Defendant’s Pre-Trial Motions
Service via Clerk’s Notice of Electronic Filing upon the following attorneys, who are Filing
Users in this case:
Joseph A. Lobosco, Esq.
Service via e-mail upon the following attorneys who are not Filing Users in this case and who
have previously given their written consent to service via e-mail:
N/A
Service via overnight courier; U.S. Mail; etc. upon the following attorneys who are not Filing
Users in this case
N/A
Dated: New York, New York
January 27, 2012
PREET BHARARA
United States Attorney
By: /s/ Niketh Velamoor
Niketh Velamoor
Assistant United States Attorney
Tel.: (212) 637-1076
12
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Case 1:11-cr-00875-DLC Document 17
Filed 03/19/12 Page 1 of 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------- ----- ---------------------x
UNITED STATES OF AMERICA,
11
Cr. 875 (DLC)
-v-
ORDER
MIGUEL ORTIZ,
Defendant.
----------- -- --------- ------- -----------x
DENISE COTE, District Judge:
The defendant Miguel Ortiz having filed pretrial motions,
and the Government having opposed the motions, it is hereby
ORDERED that the motions are denied for the reasons
described in the Government'S opposition.
Dated:
New York, New York
March 19, 2012
s~:: District
ENISE COTE
United
Judge
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Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - x
:
UNITED STATES OF AMERICA,
:
- v. -
11 Cr. 875 (DLC)
:
MIGUEL ORTIZ,
:
Defendant.
:
- - - - - - - - - - - - - - - x
GOVERNMENT’S MOTION IN LIMINE
The United States of America, by its attorney, Preet
Bharara, United States Attorney for the Southern District of New
York, Jessica R. Lonergan, Elisha J. Kobre, and Rachel P. Kovner,
Assistant United States Attorneys, of counsel, respectfully submits
this motion in limine to request that the Court (1) permit the
Government to present the lay opinion testimony of a certified
Spanish court interpreter regarding the identification of a voice
on certain intercepted phone conversations that are conducted in
the Spanish language; and (2) preclude the defense from cross
examining
a
government
witness
regarding
a
more
than
twenty
year-old arrest that did not result in conviction.
A.
The Government Should Be Permitted to Present Lay Opinion
Testimony Regarding the Identification of a Voice on
Certain Intercepted Calls.
The Government should be permitted to present the testimony of
Elizabeth Caruso, Certified Court Interpreter, who is expected to
1
Add. 16
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 2 of 10
testify that, in her opinion, and based upon her familiarity with
the
defendant’s
voice,
a
voice
on
certain
intercepted
phone
conversations regarding the heroin transaction at issue in this
case is that of the defendant.
Such lay opinion testimony is
entirely proper under Federal Rule of Evidence 901 and Second
Circuit precedent and should be permitted.
By way of background, the Government expects the evidence
presented
at
intercepted
trial
pursuant
to
include
to
a
New
certain
Jersey
phone
state
conversations,
court
authorized
wiretap, between two individuals arranging a heroin transaction to
take place on January 28, 2011 (the “Intercepted Calls”).
The
conversations in the Intercepted Calls are in the Spanish language.
The voice of one of the two participants in these conversations –
the recipient of the heroin – is known and the Government does not
expect that person’s identity to be a matter of dispute at trial.
A crucial issue at trial, however, will be the identity of the
other speaker.
The Government intends to prove that this other
voice on the Intercepted Calls is that of the defendant, in part
based upon lay opinion testimony based upon a comparison of that
voice with recordings of a voice known to be the defendant’s: (1)
a voice exemplar provided by the defendant; and (2) a recording of
a phone conversation in which the defendant participated that was
obtained via a “ruse call” to the defendant’s personal cellular
phone.
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Filed 04/23/12 Page 3 of 10
Such lay opinion testimony is regularly and properly admitted
pursuant to Federal Rule of Evidence 901(b)(5), which provides that
identification of a voice as that of a particular person may
properly be admitted through testimony of “[a]n opinion identifying
a person’s voice — whether heard firsthand or through mechanical or
electronic transmission or recording — based on hearing the voice
at any time under circumstances that connect it with the alleged
speaker.”
Fed. R. Evid. 901(b)(5).
repeatedly
upheld
the
admissibility
regarding voice identification.
The Second Circuit has
of
lay
opinion
testimony
See United States v. Cambindo
Valencia, 609 F.2d 603, 640 (2d Cir. 1979) (witness properly
identified defendant based on listening to voice exemplar); United
States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir. 1976) (“We
have on several occasions held that voice identification may be
adequate although the witness and the speaker have never personally
met”); United States v. Chiarizio, 525 F.2d 289, 296 (2d Cir. 1975)
(affirming trial court’s admission of agent’s testimony identifying
voice
on
a
tape
as
the
defendant’s,
holding
that
“expert
qualification is not required for voice identification”); United
States v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir. 1972) (holding
that “a voice can be identified through subsequent acquaintanceship
with it, which Cruet [a New York City Police Department Detective]
professed to have through a ‘meeting’ and other tapped calls. . .
Weighing the testimony was a job for the jury.”); see United States
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Filed 04/23/12 Page 4 of 10
v. Aiken, 491 F. Supp. 37, 39 (S.D.N.Y. 1980) (“Under Rule 901, so
long as a witness identifies the voice by opinion based upon
hearing the voice . . . under circumstances connecting it with the
. . . speaker, the accuracy of the identification is for the jury
to determine.”) (internal quotation marks omitted).
In United States v. Chiarizio, for example, the defendant
contended that it was reversible error for a law enforcement
officer to identify from the witness stand a voice on a taped
conversation as the defendant’s when the agent had never met the
defendant or otherwise spoken with him personally.
The defendant
further argued that “this voice identification testimony was the
expression of mere opinion.”
Chiarizio, 525 F.2d 289, 296.
The
Second Circuit rejected these arguments, holding that “particular
expert qualification is not required for voice identification” and
that, because “it is undisputed that the agent in question had
heard Chiarizio’s voice exemplar, there was “undoubtedly . . . a
sufficient basis for the agent’s identification testimony.”
Id.
Likewise, in United States v. Borrone-Iglar, the Court affirmed the
admissibility of an in-court voice identification of the defendant
by a detective based upon his having listened to a series of
wiretapped calls, holding that “a voice can be identified through
subsequent acquaintanceship with it.”
Borrone-Iglar, 468 F.2d at
420.
Other
circuits
have
concurred
4
with
the
Second
Circuit’s
Add. 19
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 5 of 10
holdings on this point. See, e.g., United States v. Cruz-Rea, 626
F.3d 929, 934-935 (7th Cir. 2010) (affirming admission of voice
identification testimony by a law enforcement officer and rejecting
defendant’s argument that “the jury could have listened to the
tapes and identified the voices without the aid of Officer Toy’s
opinion”; “Although Rule 701 requires that testimony be ‘helpful,’
we have never held that testimony is unhelpful merely because a
jury might have the same opinion as the testifying witness.”);
United States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987) (“Any
person may identify a speaker’s voice if he has heard the voice at
any time.”); United States v. Gironda, 758 F.2d 1201, 1218 (7th
Cir. 1985) (witness was familiar with voice of defendant based on
at least three conversations prior to telephone call at issue);
United States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979)
(witness may identify defendant based on conversations held “either
before or after the particular speaking which is the subject of the
identification”).
Here, Ms. Caruso has become familiar with the defendant’s
voice by having listened to, and reviewed, the voice exemplar
provided by the defendant and the ruse call in which the defendant
participated, and the Government is prepared to offer Ms. Caruso’s
lay opinion testimony regarding the identification of the voice on
the Intercepted Calls.
Ms. Caruso’s testimony in this regard will
be particularly helpful to the jury because the Intercepted Calls
5
Add. 20
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 6 of 10
are in Spanish and Ms. Caruso is a certified Spanish interpreter.
Because voice identification testimony, in the form of opinion
testimony by a lay witness, is proper under Federal Rule of
Evidence 901 and Second Circuit law, and because the testimony is
relevant and probative, the Government should be permitted to
introduce the lay opinion testimony of Elizabeth Caruso, regarding
the identity of a voice on the Intercepted Calls.
B.
The Defense Should Be Precluded from Cross Examining a
Government Witness Regarding a More than Twenty Year-Old
Arrest that Did Not Result in Conviction.
The Government expects to offer the testimony of a Drug
Enforcement Administration Group Supervisor (the “GS”) primarily
regarding
surveillance
the
GS
conducted
as
part
of
investigation leading to the charge against the defendant.
the
The GS
was arrested more than 20 years ago, at age 21 or 22, for assault
with a deadly weapon.
The GS was never prosecuted, let alone
convicted, for this arrest charge.
According to the GS, he was
acting
charges
in
self
defense,
and
the
witnesses corroborated his account.
were
dropped
after
Indeed, the GS has been
informed that this arrest was expunged, and a search of a criminal
records database shows no arrest record for the GS.
The Federal Rules of Evidence strictly limit the circumstances
under
which
introduced
evidence
into
of
evidence.
specific
acts
Federal
of
Rule
a
of
witness
Evidence
can
be
608(b)
provides, inter alia, that, “specific instances of the conduct of
6
Add. 21
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 7 of 10
a witness, for the purpose of attacking or supporting the witness’
credibility, other than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence.”
This rule further
provides
judge
broad
discretion
to
cross-examination in this area.
the
trial
to
limit
It states that “in the discretion
of the court, if probative of truthfulness or untruthfulness,”
specific instances of prior conduct “may” be inquired into “on a
cross-examination of the witness . . . concerning a witness’
character for truthfulness or untruthfulness.”
608(b).
Fed. R. Evid.
“‘Trial judges retain wide latitude . . . to impose
reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the
issues, the witnesses’ safety, or interrogation that is repetitive
or only marginally relevant.’”
United States v. Crowley, 318 F.3d
401, 417 (2d Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 679
(1986)).
The defense should be precluded from inquiring on crossexamination regarding the GS’s more than 20 year-old arrest for
several reasons.
First, “[i]t is well settled that “arrests that
did not result in convictions are not admissible as specific
instances of conduct under Federal Rule of Evidence 608(b).”
United States v. Chiarizio, 525 F.2d 289, 296 (2d Cir. 1975).
Indeed, the Supreme Court has held that “[a]rrest without more does
not . . . impeach the integrity or impair the credibility of a
7
Add. 22
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 8 of 10
witness. It happens to the innocent as well as the guilty. Only a
conviction, therefore, may be inquired about to undermine the
trustworthiness of a witness.”
U.S. 469, 482 (1948).
Michelson v. United States, 335
Because the arrest never resulted in a
prosecution, let alone a conviction, it is not relevant to the GS’s
credibility, and is inadmissible under Rule 608(b).1
Second, even if the arrest had resulted in prosecution or
conviction, it is well-settled that an assault with a deadly weapon
arrest
is
not
probative
on
the
issue
of
truthfulness
or
untruthfulness. See United States v. Salameh, 152 F.3d 88, 131 (2d
Cir. 1998) (finding that convictions for assault, robbery, and
sodomy are not probative of truthfulness or untruthfulness).
Finally, the age of the arrest – which occurred more than 20 years
ago, when the GS was 21 or 22 – renders it wholly devoid of
probative value.
LEXIS
54876
Cf. United States v. Schlussel, 2009 U.S. Dist.
(S.D.N.Y.
Feb.
27,
2009)
(“Through
Rule
609(b),
Congress intended ‘that convictions over ten years old be admitted
very rarely and only in exceptional circumstances.’”) (quoting
Zinman v. Black & Decker, 983 F.2d 431, 434 (2d Cir. 1993)).
Because the GS’s arrest never resulted in prosecution or
conviction, was for a crime not probative as to truthfulness or
untruthfulness, is more than 20 years’ old, and has, in fact,
1
Because the arrest did not result in a conviction, it is
likewise not admissible under Federal Rule of Evidence 609
(“Impeachment by Evidence of a Criminal Conviction”).
8
Add. 23
Case 1:11-cr-00875-DLC Document 26
likely
been
expunged,
the
defense
Filed 04/23/12 Page 9 of 10
should
be
precluded
from
inquiring about it on cross examination.
CONCLUSION
For
the
reasons
set
forth
above,
the
Government
respectfully requests that the Court (1) permit the Government to
present the lay opinion testimony of a certified Spanish court
interpreter regarding the identification of a voice on certain
intercepted phone conversations that are conducted in the Spanish
language; and (2) preclude the defense from cross examining a
government witness regarding a more than twenty year-old arrest
that did not result in conviction.
Dated:
New York, New York
April 23, 2012
PREET BHARARA
United States Attorney
Southern District of New York
By:
/s/
Jessica R. Lonergan, Esq.
Elisha J. Kobre, Esq.
Rachel P. Kovner, Esq.
Assistant United States Attorneys
9
Add. 24
Case 1:11-cr-00875-DLC Document 26
Filed 04/23/12 Page 10 of 10
CERTIFICATE OF SERVICE
I, Jessica R. Lonergan, declare that I am employed in the
Office of the United States Attorney for the Southern District of
New York, and on April 23, 2012, I caused a copy of the attached
Government’s Motion in Limine to be served by ECF to:
Joseph A. Lobosco, Esq.
The Law Office of Joseph A. Lobosco, Esq.
118-21 Queens Boulevard
Forest Hills, NY 11375
I declare under penalty of perjury that the foregoing is
true and correct. 28 U.S.C. Section 1746.
Dated:
New York, New York
April 23, 2012
/s/
Jessica R. Lonergan
Assistant United States Attorney
10
Add. 25
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - x
:
UNITED STATES OF AMERICA,
:
- v. -
11 Cr. 875 (DLC)
:
MIGUEL ORTIZ,
:
Defendant.
:
- - - - - - - - - - - - - - - x
GOVERNMENT’S MOTION IN LIMINE
The United States of America, by its attorney, Preet
Bharara, United States Attorney for the Southern District of New
York, Jessica R. Lonergan, Elisha J. Kobre, and Rachel P. Kovner,
Assistant United States Attorneys, of counsel, respectfully submits
this brief in support of its request to present at trial in this
case evidence of a prior arrest of the defendant pursuant to
Federal Rule of Evidence 404(b). The Government submits this brief
to more fully develop the arguments made orally at the final
pretrial conference with respect to the proposed Rule 404(b)
evidence.
I.
Background
A.
The Charge in the Indictment
The charge in the indictment arose from the defendant’s
participation in a heroin transaction that occurred on January 28,
2011 in the parking lot of the Metro Mall in Queens (the “2011
1
Add. 26
Case 1:11-cr-00875-DLC Document 28
Transaction”).
Filed 04/27/12 Page 2 of 13
The Government expects the evidence at trial to
show that the heroin was
brought to the parking lot in a Chevrolet
Tahoe with a particular New York license plate number (the “Chevy
Tahoe”), which was registered to a friend of the defendant named
Kenny Vasquez.
The driver of the Tahoe placed a car battery
containing six kilograms of heroin into the trunk of a car of a
co-conspirator.
The recipient of the heroin was arrested shortly
after the transaction, but the driver of the Chevy Tahoe was not
arrested that night.
The Government expects the evidence at trial to show that
it was the defendant who drove the Tahoe to the Metro Mall for this
drug transaction and placed the heroin into the co-conspirator’s
car. This evidence will include, among other things, evidence that
the defendant had access to Kenny Vasquez’s car; evidence that the
defendant’s voice is that of the person who made intercepted phone
calls arranging the drug transaction with the drug recipient; and
cell-site data establishing, among other things, that when the deal
occurred, the defendant’s personal cell phone was in the area.
B. Proposed Evidence Regarding Prior Transaction
The Government seeks to introduce at trial evidence of an
occasion on which the defendant was previously stopped and then
released by law enforcement agents in a vehicle registered to Kenny
Vasquez. In particular, on May 28, 2009, the defendant was stopped
in Queens by Drug Enforcement Administration ("DEA") agents while
2
Add. 27
Case 1:11-cr-00875-DLC Document 28
driving a Ford Freestar.
Filed 04/27/12 Page 3 of 13
Records from the DMV show that the Ford
Freestar that the defendant used in the 2009 Transaction was
registered to Kenny Vasquez – the very same person to whom the
Chevy Tahoe used in the 2011 Transaction was registered.
Agents stopped the defendant after he was observed receiving
a suitcase that he placed inside the Freestar.
A DEA agent who
observed the suitcase in plain view inside the Freestar opened the
suitcase and saw a shopping bag wrapped around what the defendant
later admitted to be $100,000 in cash.
The defendant told the
agent, among other things, that he did not know to whom the money
belonged; after he picked up the money, he received a telephone
call and was told to whom he should deliver the money; he knew that
the money was probably derived from the sale of drugs; and that he
had engaged in similar conduct on approximately 5 other occasions.
II.
Applicable Law
Under Rule 404(b) of the Federal Rules of Evidence, evidence
of prior acts is admissible to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.”
Fed. R. Evid. 404(b).
Moreover, with respect to such
other crimes evidence, the Second Circuit has “long been committed
to an inclusionary approach,” United States v. Benedetto, 571 F.2d
1246, 1248 (2d Cir. 1978), under which evidence of other crimes,
wrongs, or bad acts is admissible for “any purpose other than to
show a defendant's criminal propensity.”
3
United States v. Garcia,
Add. 28
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 4 of 13
291 F.3d 127, 136 (2d Cir. 2002).
Under this approach, such
evidence is correctly admitted if: (1) it is offered for a proper
purpose; (2) it is relevant to a disputed trial issue; (3) its
probative value is not substantially outweighed by its possible
prejudice; and (4) the trial court administers an appropriate
limiting instruction.
United States v. Edwards, 342 F.3d 168, 176
(2d Cir. 2003) (citation omitted).
See also Edwards, 342 F.3d at
176 (stating that the inclusionary approach “allows evidence to be
received
at
trial
for
any
purpose
other
than
to
attempt
to
demonstrate the defendant’s criminal propensity”).
With respect to the admissibility of prior acts evidence under
Rule 404(b) to prove identity, the touchstone is simply relevance.
See United States v. Gubelman, 571 F.2d 1252, 1255 (2d Cir. 1978)
(“Thus, we find that the question of identity was a real one.
The
similar acts evidence was relevant to that issue”); id. at 1255
(“We do not agree with our dissenting brother that only unique
signature crimes are admissible under the rubric of identity.”);
United States v. Tice, 1998 U.S. App. LEXIS 1404, at *3-4 (2d Cir.
Jan. 27, 1998) (“The fact that Tice had previously been convicted
for growing plants in the same location made it more likely than
not that it was he, rather than someone else, who had grown the
plants in this instance.
admissible
Weinstein’s
under
Rule
Federal
The prior conviction, therefore, was
404(b)
to
Evidence
§
4
establish
identity.”).
404.22[5][c],
at
Cf.
404-122
Add. 29
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 5 of 13
(“Other-crimes evidence is not permissible to identify a defendant
as the perpetrator of the charged act simply because he or she has
at other times committed the same garden variety criminal act,
since this would be identification based on the forbidden inference
of propensity”).
Likewise, the Second Circuit has taken a broad view with
respect to prior acts evidence to establish knowledge: “Where a
defendant claims that his conduct has an innocent explanation,
prior act evidence is generally admissible to prove that the
defendant acted with the state of mind necessary to commit the
offense charged.” United States v. Zackson, 12 F.3d 1178, 1182 (2d
Cir. 1993). Where a defendant’s knowledge and intent to distribute
or possess with intent to distribute narcotics are at issue, the
Second
Circuit
has
held
that
the
Government
is
permitted
to
introduce evidence of the defendant’s prior narcotics activity. See
United States v. Arango Correa, 851 F.2d 54, 60 (2d Cir. 1988) (“To
meet [the defendant’s] defense that he was merely on hand to assist
[a co-defendant] in receiving a shipment of paper and that he had
no knowledge of the true nature of the shipment, the government's
offer of proof that [the defendant] was familiar with narcotics
transactions was clearly relevant and probative.”); United States
v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (affirming
admission of 404(b) evidence of defendant’s prior attempt to import
cocaine into the United States to rebut defendant’s argument that
5
Add. 30
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 6 of 13
he was not involved in charged cocaine importations).
The defendant’s knowledge and intent is in issue unless the
defendant has unequivocally conceded that element of the offense.
See, e.g., United States v. Colon, 880 F.2d 650, 656-57 (2d Cir.
1989); see also United States v. Ramirez, 894 F.2d 565, 568 (2d
Cir. 1990) (holding that when the defendant “disavows awareness
that a crime was being perpetrated” and the government bears the
burden of proving knowledge “as an element of the crime, knowledge
is properly put in issue”). The defendant’s intent is also directly
put in issue when there is an argument that the defendant was
“merely present” at the place where the alleged offense occurred,
and was not involved in any illegal activity. See Zackson, 12 F.3d
at 1182 (“Where a defendant claims that his conduct has an innocent
explanation, prior act evidence is generally admissible to prove
that the defendant acted with the state of mind necessary to commit
the offense charged.”)
Prior acts evidence under Rule 404(b) need not be identical to
the crime charged, but rather similar enough to be relevant to the
issues of identity and knowledge. See United States v. Sliker, 751
F.2d 477, 486-87 (2d Cir. 1984) (allowing proof of similar fraud
where “both schemes depended upon the use of phony bank checks
issued by the same non-existent offshore bank as well as on
prearrangement with an
‘officer’
of
the
bank
to
confirm
the
validity of the checks” despite the fact that victim of one scheme
6
Add. 31
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 7 of 13
was a bank and victim of the other was a diamond seller); Dowling
v. United States, 493 U.S. 342, 348-49 (1990) (ruling that evidence
of defendant’s prior robbery of a home was “circumstantially
valuable” in proving he robbed a bank where on both occasions he
wore a ski mask and carried a small pistol); United States v.
Sappe, 898 F.2d 878, 880 (2d Cir. 1990) (affirming admission of
evidence of prior bank robberies where, as in the charged crime,
defendant hid a gun in a newspaper and positioned it on the counter
so that the teller could see the gun); United States v. Speed, 272
Fed. Appx. 88, 91-92 (2d Cir. 2008) (holding that the district
court
properly
“admitted
limited
evidence
about
Speed’s
1986
robbery conviction pursuant to Fed. R. Evid. 404(b), finding that
certain details of the prior crime were relevant to prove Speed's
identity as a participant in the later robberies”).
Other
crimes
evidence
is,
like
all
other
evidence,
inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice.
See Fed. R. Evid. 403.
Evidence
is unfairly prejudicial “only when it tends to have some adverse
effect upon a defendant beyond tending to prove the fact or issue
that justified its admission into evidence.”
Figueroa, 618 F.2d 934, 943 (2d Cir. 1980).
United States v.
Other crimes evidence
is not unfairly prejudicial where it is not “any more sensational
or disturbing than the crimes” with which the defendant has been
charged.
United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d
7
Add. 32
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 8 of 13
Cir. 1990).
III. Argument
The
facts
surrounding
the
2009
Transaction
are
plainly
relevant to two issues likely to arise in this trial – identity and
knowledge – and it is for these proper purposes that the Government
seeks to present the brief testimony of one witness to the 2009
Transaction under Rule 404(b).
Government
will
bear
the
With respect to identity, the
burden
of
proving
that
it
was
the
defendant who drove Kenny Vasquez's Chevy Tahoe to the Metro Mall
on January 28, 2011 with the six kilograms of heroin.
That the
defendant, during the 2009 Transaction, used a vehicle registered
to the same Kenny Vasquez in connection with narcotics activity is
plainly relevant to the issue of identity.
Evidence that the
defendant has used, in the course of his narcotics activities,
vehicles registered to a particular person, is akin to evidence of
the use of a distinctive tool used or method of committing an
offense that has regularly been found relevant to the issue of
identity.
See, e.g.,
Dowling, 493 U.S. at 348-49 (evidence of
prior robbery admissible because on both occasions the defendant
wore a ski mask and carried a small pistol); Sappe, 898 F.2d at 880
(affirming admission of evidence of prior bank robberies where, as
in the charged crime, defendant hid a gun in a newspaper and
positioned it on the counter so that the teller could see the gun).
Therefore, the fact that the defendant had previously used a
8
Add. 33
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 9 of 13
vehicle registered to Kenny Vasquez in connection with laundering
the proceeds
of narcotics
trafficking
tends to make
it
more
probable that the person using Kenny Vasquez’s vehicle on January
28, 2011 to traffic six kilograms of heroin was the defendant. See
Garcia, 291 F.3d at 136 (holding that evidence of other crimes,
wrongs, or bad acts is admissible for “any purpose other than to
show a defendant's criminal propensity”); Gubelman, 571 F.2d at
1255 (affirming admission of prior acts evidence to prove identity
and rejecting the argument that “only unique signature crimes are
admissible under the rubric of identity.”).
The 2009 Transaction is moreover highly relevant to the issue
of knowledge on which the Government will also bear the burden of
proof at trial. The six kilograms of heroin delivered at the Metro
Mall on January 28, 2011 were secreted in a hollowed-out car
battery.
That the defendant was previously involved in laundering
narcotics proceeds on at least six occasions is highly relevant to
his knowledge that at the time of the charged offense he knew he
was delivering six kilograms of heroin.
See Arango Correa, 851
F.2d at 60 (“To meet [the defendant’s] defense that he was merely
on hand to assist [a co-defendant] in receiving a shipment of paper
and that he had no knowledge of the true nature of the shipment,
the government’s offer of proof that [the defendant] was familiar
with narcotics transactions was clearly relevant and probative.”);
Ramirez-Amaya, 812 F.2d at 817 (affirming admission of 404(b)
9
Add. 34
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 10 of 13
evidence of defendant's prior attempt to import cocaine into the
United
States to
rebut defendant’s
argument
that he
was
not
involved in charged cocaine importations).
The relevance of the 2009 Transaction is highlighted by the
fact that the narcotics proceeds involved in that transaction were
hidden inside a shopping bag contained in a suitcase.
The 2009
Transaction thus tends to show that the defendant is well aware of
the methods used to conceal contraband in connection with narcotics
trafficking activities.
See Zackson, 12 F.3d at 1182 (“Where a
defendant claims that his conduct has an innocent explanation,
prior act evidence is generally admissible to prove that the
defendant acted with the state of mind necessary to commit the
offense charged.”).
Nor is the probative value of evidence regarding the 2009
Transaction “substantially outweighed” by its possible prejudice.
Edwards, 342 F.3d at 176.
Evidence is unfairly prejudicial “only
when it tends to have some adverse effect upon a defendant beyond
tending to prove the fact or issue that justified its admission
into evidence.”
Cir. 1980).
United States v. Figueroa, 618 F.2d 934, 943 (2d
A “[d]efendant must show some undue prejudice, apart
from the prejudice implicit in Rule 404(b) evidence.”
United
States v. Vargas, 702 F. Supp. 70, 72-73 (S.D.N.Y. 1988) (emphasis
added). Furthermore, the “fact that evidence may be ‘damning’ does
not render it inadmissible.” Id. (citing United States V. Cirillo,
10
Add. 35
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 11 of 13
468 F.2d 1233, 1240 (2d Cir. 1972)).
The reality is that the proposed 404(b) evidence is no more
sensational than the evidence of the charged crime that will be
presented at trial.
The defendant is charged with conspiring with
others to distribute and possess with intent to distribute heroin,
while the Government’s proffered Rule 404(b) evidence relates to
the defendant's prior involvement in, at a minimum, transporting
drug proceeds in furtherance of a drug conspiracy.
Indeed, the
value of the heroin the defendant is charged with in this case is
of far greater value than the $100,000 the defendant transported in
the 2009 Transaction.
In these circumstances, there is no danger that the admission
of
the
above-described
evidence
will
elicit
an
emotional
or
otherwise inappropriate response from the jury. See Pitre, 960 F.2d
1112, 1120 (2d Cir. 1992) (admitting evidence of prior narcotics
transactions in narcotics case where other acts evidence “did not
involve conduct any more sensational or disturbing than the crimes
with which [the appellants were] charged”).
11
Add. 36
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 12 of 13
CONCLUSION
For
the
reasons
set
forth
above,
the
Government
respectfully requests that the Court grant its request to be
permitted to present at trial in this case evidence of a prior
arrest of the defendant pursuant to Federal Rule of Evidence
404(b).
Dated:
New York, New York
April 27, 2012
PREET BHARARA
United States Attorney
Southern District of New York
By:
/s/
Jessica R. Lonergan, Esq.
Elisha J. Kobre, Esq.
Rachel P. Kovner, Esq.
Assistant United States Attorneys
12
Add. 37
Case 1:11-cr-00875-DLC Document 28
Filed 04/27/12 Page 13 of 13
CERTIFICATE OF SERVICE
I, Elisha J. Kobre, declare that I am employed in the Office
of the United States Attorney for the Southern District of New
York, and on April 27, 2012, I caused a copy of the attached
Government’s Motion in Limine to be served by ECF to:
Joseph A. Lobosco, Esq.
The Law Office of Joseph A. Lobosco, Esq.
118-21 Queens Boulevard
Forest Hills, NY 11375
I declare under penalty of perjury that the foregoing is
true and correct. 28 U.S.C. Section 1746.
Dated:
New York, New York
April 27, 2012
/s/
Elisha J. Kobre
Assistant United States Attorney
13
Add. 38
Case 1:11-cr-00875-DLC Document 29
Filed 04/29/12 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
MIGUEL ORTIZ
.
.
.
.
.
.
.
Criminal No.: 11 Cr. 875 (DLC)
Honorable Denise L. Cote
MEMORANDUM IN SUPPORT OF DEFENDANT MIGUEL ORTIZ
23326,7,21 72 *29(510(17¶6 MOTION IN LIMINE
JOSEPH A. LOBOSCO, ESQ.
Attorney for Defendant Miguel Ortiz
118-21 Queens Boulevard
Suite 606
Forest Hills, New York 11375
(718) 578-9963
Add. 39
Case 1:11-cr-00875-DLC Document 29
Filed 04/29/12 Page 2 of 6
LEGAL ARGUMENT
The Government seeks to introduce evidence of a 2009 incident during which the
defendant, Miguel Ortiz, was stopped by government agents and found to be in possession of
approximately $100,000 USD. The vehicle that Mr. Ortiz was driving at the time of this stop
was registered to Kenny Vasquez. When questioned about the currency, Mr. Ortiz is alleged to
have stated that he did not know who the money actually belonged to, that the money was
probably proceeds of drug transactions, and that he had done this type of activity approximately
five times in the past.
The Government argues that it should be allowed to introduce evidence of this encounter
SXUVXDQW WR )HGHUDO 5XOH E DV SURRI UHOHYDQW WR WKH LVVXHV RI WKH GHIHQGDQW¶V LGHQWLW\ DQG
knowledge in the instant matter. Specifically, with respect to the issue of identity, the
Government argues that since both the 2009 incident and the instant matter involve vehicles
registered to an individual identified as Kenny Vasquez, a longtime friend of Mr. Ortiz, this fact
alone is sufficient to prove that Mr. Ortiz was the driver of the vehicle in the instant case.
Further, with respect to the issue of knowledge, the government argues that since both the 2009
incident and the current case involve the concealment of property (in the instant case, the drugs
on which the charge is based were hidden inside a hollowed-out car battery, while in the 2009
incident the cash that was recovered had been wrapped in plastic and placed inside a shopping
bag), that fact alone is sufficient to prove that Mr. Ortiz had knowledge of the contents of the
battery.
,W LV WKH GHIHQGDQW¶V SRVLWLRQ WKDW WKH GRYHUQPHQW¶V DUJXPHQWV DUH LQFRUUHFW LQ WKDW WKH\
are based on an erroneous premise: that the 2009 incident is a crime, wrong, or act for which
Rule 404(b) evidence may be received.
1
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Case 1:11-cr-00875-DLC Document 29
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)HGHUDO 5XOH RI (YLGHQFH E VWDWHV WKDW ³>H@YLGHQFH RI RWKHU FULPHV ZURQJV RU DFWV
. . . may . . . be admissible for . . . purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of miVWDNH RU DFFLGHQW´ The GRYHUQPHQW¶V
YLHZ RI WKH LQFLGHQW DV HYLGHQFH RI 0U 2UWL]¶V LQYROYHPHQW LQ DW OHDVW VL[ VHSDUDWH
incidences of money laundering of narcotics proceeds is not only speculative, but is based upon
an inappropriate application of the standard of review.
In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the
Supreme Court held that ³VLPLODU DFW´ DQG RWKHU 5XOH E HYLGHQFH ³VKRXOG EH DGPLWWHG LI
there is sufficient evidence to support a finding by the jury that the defendant committed the
VLPLODU DFW´ Huddleston at 685. Here, the Government argues that the 2009 incident is evidence
that ³WKH GHIHQGDQW ZDV SUHYLRXVO\ LQYROYHG LQ ODXQGHULQJ QDUFRWLFV SURFHHGV RQ DW OHDVW VL[
RFFDVLRQV´ GoveUQPHQW¶V 0RWLRQ LQ /LPLQH p. 9. As is shown below, however, the
Government fails to provide any support for its argument.
In its motion, the Government tells an abbreviated version of the 2009 incident. The full
story is far from helpful for the GoverQPHQW¶V SRVLWLRQ RQ WKLV PRWLRQ DQG LV VHW IRUWK KHUHLQ
AFFRUGLQJ WR WKH UHSRUW SUHSDUHG E\ WKH *RYHUQPHQW¶V SURSRVHG ZLWQHVV 6SHFLDO $JHQW 0LFKDHO
Krol1, Mr. Ortiz was observed receiving a suitcase from another person and handing that person
a computer hard drive. Shortly after this exchange was witnessed, SA Krol and other agents
stopped the car being driven by Mr. Ortiz. When he approached Mr. Ortiz and proceeded to
speak with him, Agent Krol observed that Mr. Ortiz appeared very nervous, his hands were
VKDNLQJ DQG KLV YRLFH ZDV FUDFNLQJ 0U 2UWL] QHYHUWKHOHVV FRQVHQWHG WR WKH DJHQWV¶ VHDUFK RI
both the vehicle and the suitcase, and stated that he did not know who the money belonged to,
but that he knew there was about $100,000 in the bag. Mr. Ortiz allegedly stated later at the
1
The report is annexed hereto as Exhibit A.
2
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Case 1:11-cr-00875-DLC Document 29
Filed 04/29/12 Page 4 of 6
VFHQH WKDW WKH PRQH\ ZDV ³SUREDEO\´ GHULYHG IURP WKH VDOH RI GUXJV $OWKRXJK 0U 2UWL] ZDV
arrested at this time, the Office of the New York City Special Narcotics Prosecutor declined to
prosecute, and Mr. Ortiz was released.
The only evidence that can be derived from this report is that Mr. Ortiz was in possession
of a large sum of U.S. cXUUHQF\ DQG WKDW KH DOOHJHGO\ VWDWHG WKDW WKH PRQH\ ZDV ³SUREDEO\´
derived from the sale of drugs. His mere possession of the money, however, does not
corroborate his statement, and is not by itself a criminal act. And without sufficient
corroboration, the apparently inculpatory statements made by Mr. Ortiz would not sustain a
conviction. See U.S. v. Irving, 432 F.3d 401(2d. Cir. 2005).
In order to corroborate the statements made by Mr. Ortiz, the Government would have to
SURGXFH ³VXEVWDQWLDO LQGHSHQGHQW HYLGHQFH ZKLFK ZRXOG WHQG WR HVWDEOLVK WKH WUXVWZRUWKLQHVV RI
WKH VWDWHPHQW´ Irving, at 409, citing Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99
L.Ed. 101 (1954). The Government has produced no such substantiating proof, and instead asks
the Court to accept its ipse dixit argument in support of its argument that the 2009 incident
constitutes proof of a crime or bad act.
The Government also fails to support its argument with case law. The cases cited by the
Government
Dowling v. United States, 493 U.S. 342 (1990), United States v. Sappe, 898 F.2d
878 (2d. Cir. 1990), and United States v. Speed, 272 Fed.Appx. 88 (2d. Cir. 2008) are entirely
distinguishable from the present case. All three Government cases involve robberies in which the
DOOHJHG ³VLPLODU DFWV´ ZHUH PHUHO\ PLQRU IDFWXDO YDULDWLRQV RI WKH VDPH FULPLQDO DFWV ,Q WKH
instant matter, KRZHYHU WKH ³VLPLODU DFW´ DOOHJHG E\ WKH *RYHUQPHQW LV DQ HQWLUHO\ GLIIHUHQW W\SH
RI FULPH WKDQ WKDW DOOHJHG LQ WKH FXUUHQW LQGLFWPHQW $FFRUGLQJO\ WKH *RYHUQPHQW¶V FDVHV GR QRW
support its attempt to argue that the 2009 incident, which, as demonstrated above does not
3
Add. 42
Case 1:11-cr-00875-DLC Document 29
Filed 04/29/12 Page 5 of 6
establish criminal activity, nevertheless provides sufficient legal background to the instant charge
to render it admissible under Rule 404(b).
The Government also argues that the 2009 incident is relevant because, in both incidents,
the subject of the allegeG ³FULPH´ LV FRQFHDOHG ZLWKLQ DQRWKHU REMHFW +RZHYHU DOOHJLQJ WKDW
removing the contents of a car battery to render it able to hide six kilograms of heroin is the same
as simply placing a large item into a vessel which was created for the explicit purpose of
carrying large items strains credulity.
%DVHG XSRQ WKH IRUHJRLQJ WKH *RYHUQPHQW¶V DUJXPHQW WKDW WKH SUREDWLYH YDOXH RI
evidence regarding the 2009 incident outweighs the danger of unfair prejudice is also flawed. To
allow evidence of an incident that could in no way support a finding by the jury that Mr. Ortiz
had committed the crime of money laundering would be extremely prejudicial and would have
no probative value regarding the crime charged in the instant indictment.
CONCLUSION
For all the foregoing reasons, WKH *RYHUQPHQW¶V 0RWLRQ LQ /LPLQH VKRXOG EH GHQLHG LQ LWV
entirety.
Respectfully submitted,
By: ________________________________
JOSEPH A. LOBOSCO, ESQ.
Attorney for Defendant Miguel Ortiz
118-21 Queens Boulevard, Suite 606
Forest Hills, New York 11375
(718) 578-9963
Dated:
April 29, 2012
4
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Case 1:11-cr-00875-DLC Document 29
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CERTIFICATION OF FILING AND SERVICE
I hereby certify that on April 29, 2012, the foregoing document was filed with the Clerk
of the Court and served in accordance with the Federal Rules of Criminal Procedure and/or
6RXWKHUQ 'LVWULFW¶V /RFDO 5XOHV DQGRU WKH 6RXWKHUQ 'LVWULFW¶V 5XOHV RQ (OHFWURQLF 6HUYLFH XSRQ
the following parties or participants:
Elisha Kobre
Jessica Lonergan
Rachel Peter Kovner
Assistant United States Attorneys
8QLWHG 6WDWHV $WWRUQH\¶V 2IILFH
Southern District of New York
2QH 6DLQW $QGUHZ¶V 3OD]D
New York, New York 10007
By: _____________________________________
JOSEPH A. LOBOSCO, ESQ.
Attorney for Defendant, Miguel Ortiz
5