Professional Documents
Culture Documents
United States v. Ortiz Arrigotia, 1st Cir. (1993)
United States v. Ortiz Arrigotia, 1st Cir. (1993)
UNITED STATES,
Appellee,
v.
LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI, et al
Defendants, Appellants
_________________________________________________
ERRATA SHEET
The opinion of
amended as follows:
On
"n.9."
this
court issued
on
of footnote 2,
June 11,
1993,
is
__________
No. 91-1366
UNITED STATES,
Appellee,
v.
PEDRO MEDINA-VAZQUEZ, a/k/a PURUCO,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya and Stahl, Circuit Judges,
______________
and Skinner,* District Judge.
______________
____________________
quantities
abetting
of
therein
marijuana
and,
in
the
and
cocaine,
case
of
aiding
Medina
and
Vazquez,
This
large
organization
scale
known
drug
as
"La
importation
Nena."
and
Of
distribution
their
numerous
a mistrial
after discovery by
arrived at a
the court
that
conclusion concerning
reserve our
discussion
of this
difficult issue
until
last.
l. Sufficiency of evidence.
_______________________
All
defendants challenge
the sufficiency
of the
the
testimony
of
Geraldo
Portalatin
Toledo
("Portalatin"),
organization.
was so
leading member
of
the
"La Nena"
drug
unreliable and so
sketchy as
to them, that
it was
-33
insufficient
examined
as
a matter
concerning his
judge gave
of law.
deals
Portalatin
with the
was cross-
government.
The
detailing the
Medina
is the province of
the jury to
S.
Vazquez
helped
unload
various
shipments
of
and
"clandestine
distribution
airfield" at
Puerto Rico.
of
La
Portalatin's
considered
with
sufficient
to
notwithstanding
the
load
of
Furnia Farm
evidence,
if
evidence
in
other
support
conviction
Portalatin's
unsavory
cocaine
at a
in Barceloneta,
believed,
the
by
case
the
history
when
was
jury,
and
the
in
the
2.
Cameron
admission of evidence.
further
asserts
error
of
Furnia was
cocaine after
"Hiram," whom he
identified
as
Luis
Hiram Ortiz
his head,
had pulled
the pilot
described
himself as
"shaken"
Cameron argues
that
is no
evidence,
incapacitated.
helped
He
as
the
destination of
experience.
made
had
Ortiz
him
so
pulled the
latter
defendant.
condition
however, that
"Hiram"
by the
the
out of
Portalatin's
Cameron,
he
pilot
was in
from the
He then spent
drove
the
the contraband.
any
way
plane
and
"power
Under such
wagon"
to the
circumstances,
attorney
the
cross-examination of
discovered
for
the
Portalatin, the
first
time
that
He immediately identified
-55
Ortiz
Cameron
Among other
be
Portalatin's testimony
stricken
as
unacceptably
had not
furnished by
photographs which
the
prosecution contained
were simply
copies
blotches of white
of
on black.
no
advantage of
explicit
the opportunity.
finding,
prosecution's explanation.
however,
to
provide
counsel
and to develop
Counsel declined
apparently
trial judge
accepted
an
opportunity
any evidence of
to
improper
of Portalatin
the
defense
examination of Portalatin.
dire
____
but
The
to explore
any
at
for a voir
____
possible taint.
This
reliability
of
identification
testimony
of an impermissibly
suggestive
-66
98, 113-14
Cir. 1989).
that Portalatin
had
In
in the close
company of "Hiram,"
He knew
later.
but certainly
in the denial of
we find no
error in
the
concerning his
whereabouts immediately
concerning his wealth,
disappearance from
after the
"La Furnia"
his normal
episode and
could
a period of time.
rebut such
testimony.
unexplained flight
It
is well
established
or a defendant's attempt
that
to conceal his
-77
identity
may
be relevant
evidence of
Similarly, evidence
unexplained
wealth
may
F.2d
guilt.
See, e.g.,
__________
867, 869
(1st Cir.
other
evidence
of
605
F.2d
1216,
1224-25 (1st
Cir.
1979),
cert.
_____
3.
Severance.
_________
All
severance
three defendants
on the
"spill-over"
ground
moved
before
that there
of evidence
from one
would be
to the
motion
is addressed
judge.
Cir.
to the sound
States v. Boylan,
_________________
denied,
______
111
indicted in
evidence
S.
898
Ct.
112 S.
F.2d 230,
139
(1990).
Ct. 986
246
to the
charges
(1st
Where
prejudicial
other.
discretion of
relevant
trial for
Such a
the trial
302, 308
(1st
(1992); United
______
Cir.),
defendants
cert.
_____
are
necessarily will be
against
more than
one
furtherance of
his discretionary
instructed the
jury to
against each
defendant separately.
Defendants
renewed
their
called Rafael
motion
He
Arrigoitia or
presented.
Tormes
Medina
Vazquez is
Cameron
same drug
testified
to do
No
with the
way
La Furnia
incriminate
Ortiz
the
details
of Portalatin's
claimed by Ortiz
so doing
of
Portalatin
have
offered no
to
their
authority
1194-95
Arrigoitia and
Tormes bolstered
detriment.
in
Cir.
the
to a mistrial,
the
The
support of
Ortiz
member of the
any
some of
that by
dubious proposition
Vazquez
The prejudice
credibility
F.2d
in
Medina Vazquez.
corroborated
defendants
On
not
and Medina
the defendant
had nothing
did
All that
testimony.
after
witness.
Ortiz Cameron
unloading.
Arrigoitia
Tormes, a convicted
conspiracy, as a
that
Ortiz
1990)
897
(finding
withdrawal/noninvolvement
defense
insufficiently
into
the realm
of fundamental
disagreement over
core and
625, 630
or
(1982).
The
district
judge
properly
4.
Improper Argument.
_________________
denied
the
In
prosecutor
the
course
said with
of
his
reference to
closing
argument,
the defense
attorneys,
wanted to
"Do not
the prosecutor
gentlemen
--
."1
Later the
prosecutor said,
ladies and
counsel objected.
After
repeated "They
Defense
the
The judge
--."
In
that
these
were
so prejudicial
as
to
require
____________________
1This quotation and the following one were unfinished
sentences according the transcript and are not ellipses
created by the author of this opinion.
-1010
reversal.
We
do
not
understand,
however,
why,
after
the District
arguments
e.g.,
_____
of Puerto
Rico persist
their
See,
____
in spiking
-1111
5. Sentencing errors.
_________________
Medina
erroneously
because
Vazquez
refused to
of his
reduction should
case
reduce
that
the
district judge
his offense
minimal participation.
the
argues
level by
U.S.S.G.
3B1.2.
e.g., in a
that this
case where
credible evidence
been involved in a
of any transcript of
that Medina
number of off-loadings.
In
four
In this
Vazquez had
the absence
either the
judge made
appropriate
findings of
fact.
See,
____
1128, 1135 (1st Cir. 1986) ("We have held repeatedly that we
will not review a claim of error if the appellant has failed
to include a
record on appeal.").
Ortiz
failed
to make
resolving
Cameron
argues
that
the
sufficiently detailed
factual
disputes
presentence investigation
raised
district
findings of
by
judge
fact in
objections to
report ("psi").
In fact,
the
those
of guilt, which
-1212
counsel.
Cameron
We
alleges ineffective
have
repeatedly
unless
judge,
it has
who is
been
held
best
that,
absent
previously
in the
assistance of
raised before
position to
the
make an
initial judgment.
See, e.g.,
__________
958
the district
judge, who in
counsel for
7. Recusal.
_______
After
recused himself
"La
Nena,"
grounds
of
the
the purported
his
this
Cameron claims
case
the trial
the
the
drug ring,
facts
shows that
on the
of the
judge
head of
familiarity with
because of previous
Ortiz
trial in
was one.
the judge
case
was
In fact
trial of
so as a matter
of discretion.
8.
major controversy in
remark
made
by
First, we must
There
district
court
while
factually intertwined
the
in this case,
they are
analytically
A.
At the
Background.
___________
was advised that the daughter of a juror, who had been daily
accompanying her mother
then interviewed
the
observed in
Cameron.
daughter and
-1414
The
district
her mother,
the
juror.
discussed
the case
expressed
very definite
government's
at length
witnesses.
understanding from
with
her daughter,
views about
The
the testimony
daughter
of the
also reported
and had
her
judge then
summoned all
of the
jurors into
had
heard some
comment about
Four
the
case but
could not
guilt or innocence of
-1515
the defendants.
four
of
the
jurors
answered
emphatically
in
the
affirmative.
The
satisfied
that
the
properly,
based on
jurors
their
would
carry
answers and
out
he was
their
duty
his observation
of
their demeanor.
Counsel for Ortiz
Vazquez (and
not
before us)
moved for
Arrigoitia expressly
a mistrial.
declined to so
whose appeal is
Counsel
closing
arguments.
comment, counsel
In response
of claiming double
time and
the
for Ortiz
move at that
for Medina
judge's
that he had
-1616
should
It is
be made
or inadvertence,
promptly.
but one
This
a motion for
was no
of deliberate
case of
delay for
tactical purposes.
Failure
to
make a
timely motion
for
a waiver and
Arrigoitia.
F.2d
9-10
6,
defendant's
jeopardy
(1st
1991)
constitutional
from
opportunity
silence
to object
(inferring
protection
where
the
but failed
waiver
to do
of
against
defendant
so until
936
a
double
had
the
one day
339 (1st
declined
appeal),
to do
so, the
claim
U.S.
was not
971
preserved for
(1979); Saville v.
___________
United States, 400 F.2d 397, 400 (1st Cir. 1968) (concluding
_____________
that motion for mistrial was untimely where defendant failed
to act at the
-1717
When a
non-frivolous suggestion
is
made that
must
undertake
an
adequate
inquiry
to
determine
States v. Anello,
_________________
denied, 474 U.S.
_______
F.2d
398, 400
it
765
F.2d
253, 259
(1st
Cir.),
cert.
_____
however, shackled
1979).
to a rigid
procedures
that
compel any
inquiry.
Rather, in
trial judge
light
The
of
the
form
590
is not,
rules and
or scope
of
infinite variety
of
from undue
an
appropriate
prejudicial.
and
responsible
procedure
Boylan, 898
______
F.2d at 258.
to
whether
As we have
often
explained, "A
district court
has broad,
though not
of juror bias."
Corbin, 590
______
F.2d at 400.
In this
have
spoken
case, upon
about
the
discovering that a
trial
to
her
juror may
eighteen
year-old
-1818
daughter,
and
she had
talked to
intention
determine
morning
to
interview
if any others
all
jurors
case.
The
individually
had been
denied
about the
tainted.
speaking
about
all
jurors
to
The following
the
case
to
outsiders or each
some
comment
other, though
among
identifying
what
present but
were not
the
one thought
jurors
about
those comments
the
he had
case
concerned.
heard
without
Counsel were
permitted to participate
directly in
jurors
counsel.
a
reflected
concerns
previously
expressed
by
avenue of inquiry.
The
interviewing all
consulting with
the
jurors and
counsel,
relevant
and weighing
the
the
court found
the jurors
were not
partial.
The trial
and reached
impartiality.
present no compelling
nothing
in the
district
a reasonable
Ortiz
court's
conclusion about
Cameron
and Medina
record that
leads us
investigation
alleged
was
the
Vazquez
and we find
to believe
that the
inadequate
or
his
C. Remark By Judge.
________________
It
is
also
suggested that
the
district
court
four jurors:
views
erroneous?"
and
change
your
opinion
convinced it
is
____________________
2Our dissenting colleague suggests an "alternative ground
for reversal" -- the district court's failure to inquire
into Juror Carrero-Roman's statement that members of the
jury had discussed the case.
See Stahl, n.9.
The
___
defendants, however, have not specifically argued this issue
on appeal. In any event, we do not consider the alternative
ground to be meritorious.
Juror Carrero-Roman's answer was
extremely indefinite and, on the facts of this case, did not
require a full-fledged judicial inquiry.
Moreover, the
judge essentially conducted a full-fledged inquiry when he
asked the other jurors questions which would have revealed
precisely the impropriety which Judge Stahl fears.
-2020
less
than a
employed,
textbook model,
in
the
suggesting that
we do
specific
not view
context
the defendants
of
the language
this
case,
as
of proving
their innocence.
First, the judge's
at
investigation we have
supra
_____
Part
A.
in the context of an
Second, the
question
-- even
deemed to be
proof on any
specific party
but merely
jurors
retained the
ability
light
of
developments.
scrupulously
thought the
further
avoided
instruction
if somehow
the burden of
asked whether
to reexamine
indicating what
See
___
their views
Indeed,
the
particular
the
in
judge
views he
Third,
an
again assuming
instruction, the
that the
defendants
question were
did
not give
to cure it by, at
to be
the
any stage,
finally,
assuming
the
question
were
an
instruction,
jury charge.
to
jury may
Here, in
ten times
the
not
be judged
his pre-deliberations
in
artificial isolation").
government bore
the burden of
proof.3
at least
mid-trial reference to
an
"open
mind," then,
is
adequately
dispelled once
the
____________________
3To provide just two examples, the judge stated:
Indeed the defendants are presumed
by law to be innocent. The law does not
require the defendant to
prove his
innocence or produce any evidence at all
and no inference whatsoever may be drawn
from the election of a defendant not to
testify.
The
government,
that
is
the
prosecution[,]
has
the
burden
of
providing or proving the[ defendants]
guilty beyond a reasonable doubt and if
he fails to do so, you must acquit them.
Later, the judge repeated that "it is up to the government
to prove the[ defendants] guilty beyond a reasonable doubt."
Elsewhere in the charge the judge continually instructed the
jury that the government bore the burden of proof beyond a
reasonable doubt with regard to each element of each
offense.
-2222
We find
fifth
factor --
further support
circuit precedent.
in a
In Nickens
_______
asked here.
evidence
was
instructions."
all
in
and
Id. at 118.
___
mid-
the
court
had
until the
rendered
its
factors
we
have
identified, we
find
four casethat
the
____________________
4We note, however, that this entire situation could easily
have been avoided had the judge instructed the jurors, at
the time this issue arose, that the burden of proving the
defendants' guilt always rests with the government.
-2323
remarks
made by
the district
judge did
not impermissibly
____________________
5The judge below also made a mid-trial "open mind" statement
which is more easily construed as an "instruction." As the
dissent
acknowledges, however, no one challenged this
statement at any stage. If we were to review it, then, it
would be under a plain error rubric and Nickens would
_______
directly control.
-2424
STAHL,
STAHL,
I
the
court's
response
to
the
With respect,
I believe that
juror
misconduct
With
regard to
"to fashion
to determine
and
whether
its
an appropriate
whether [juror]
it was
majority rests
and responsible
misconduct actually
prejudicial."
Ante,
at 15
____
(citing Boylan,
______
district court
898 F.2d
at 258).
While I
agree that
so broad as to permit
a court
effort to assess
a method of
proof
from
the government
to
the
defendants.
have
granted.
For
reverse.
-2525
these
As
would
This case, in my
without
a detailed
court's
response to
summary
the
of the
events surrounding
juror misconduct
allegations.
the
I
the
question
of
possible
juror misconduct
interrogation of
Gonzales,
who had
girlfriend.
court that
a young
been seen
woman, the
conversing with
discussed that
daughter
of Juror
a defendant's
it became apparent
defendant's innocence.
It
to the
girlfriend had
that the daughter had discussed many aspects of the case with
her
mother, Juror
Gonzales.
As a
result, the
court then
Gonzales
admitted that
expressed
any opinion
the defendants,
and
indicated
an
case.
as to
engaged in
She
denied,
the guilt
generally downplayed
juror had
she had
opinion
or
the
to
the
guilt
or
the
counsel
conclusion
for
of
defendant
Juror
Diaz
Gonzales's
Fernandez
and
In
-26-
26
question
any
of
the other
jurors.
The AUSA
however,
motions
but
following
that
evening
morning.
Ortiz
would
decide
Cameron's
what
requested,
The court
the mistrial
to
attorney
do
the
then,
for
following
of
each
morning,
of
the
the
remaining
court
twelve
commenced
jurors,
questions.
Roman,
however,
statement: "Well,
no
I
One
answered question
three
Luis
with the
say
referred
yes or
to
answering "no"
no."
Four
collectively
as
other jurors
"the
four
(hereinafter
jurors")
while
-2727
At this juncture,
the four
jurors.
The court
question,
a question
which,
leading.
Before asking
the
opinion, was
question, the
seriously
court made
following statement:
As I instructed you before, the guilt or
innocence of the defendants is decided
after listening to all the evidence, to
the final summations of the attorneys and
after applying the instructions as to the
law to be given by me.
The court followed this statement with:
recalled
the
of
the
four
affirmative.
having
Juror Luis
engaged in
recalled.
jurors answered
Carrero
discussions
this
question
Roman,
with other
in
the
who admitted
to
jurors, was
not
to propose
follow-up
questions.
Indeed,
throughout
__________
the
so much as a word.
After
the
inquiry
ended,
however,
the
court
entertained objections.
Counsel for
both
the court's
interrogations and
to the
leading
length of
the
-2828
Counsel
that
no instruction
__
could cure
that
compromised.
the
the problem.
Counsel
for
presumption
of
innocence
had
been
Arrigoitia, while
enter specific
findings
as to
the "demeanor"
of the
jurors:
. . . I would ask that the court make[]
findings to the effect that [the four
jurors] appear[ed] to be quite sincere .
. . . The bottom line is, Your Honor,
this is a due process issue, whether
these defendants are being afforded due
process by these jurors, and to that
effect, I believe the Court would have to
enter a finding that yes, they can, they
are willing and able to keep an open mind
and to reach a decision at the end of the
case based upon the evidence and the
instructions given by the court. I would
think it is a close shot, but I think
-2929
court to
four
thereafter,
the
court
entered
the
court
then denied
Subsequently, counsel
the
pending
motions for
mistrial.
joined the
whose discussions
to excuse
Juror Gonzales,
by all counsel.
When
the jury
court's
final
instructions
to
the
jury
addition,
the
"reasonable
doubt" instructions
aspects
the
of
case.
At
court
gave
in connection
no
time,
several
other
with various
however,
did
it
The
majority concludes
that
the
district
court
district
court's
investigation
was
inadequate
or
his findings
clearly
erroneous.
Ante, at 16.
____
Respectfully,
my review of
that same
record
opinion about
innocence of
the
again and, in
question in such
response.
my view, structured
a way
Before asking
the only
____
acceptable
in
psychology to
statement
had on
the
understand
four jurors'
One does
the
not need a
effect that
ability to
this
answer this
five
reasons
why this
question
did
not,
____________________
burden of proof is a strict or heavy
burden, it is not necessary that the
defendant's guilt be proved beyond all
doubt.
-3232
in their
estimation,
any
one
of
problem.
these
five
points
sufficiently
four points,
answers
I am afraid
the
that my
over substance.
cannot join
in such
an approach,
a fair
trial is at stake.
As
reliance
to
upon
the
majority's
Nickens,
_______
proposition that
955
fifth point
F.2d
at
i.e.,
____
its
for
the
118-19,
mind" instruction
cured
proof - I am baffled.
In
(affirming
form").
We were
instructions "[w]ithout
endorsing
See id.
___ ___
their
to determine
innocence.
[not]
normally suggest
________
burden of proving
proving
We reasoned
that those
instructions "would
to
the jury
that the
guilt is
equal to
defendant's burden
innocence."
Id.
(emphasis
government's
supplied).
of
Finding
___
nothing
extraordinary in
instructions were
error."
not "so
we concluded
egregious as to
that the
constitute plain
Id.
___
Here,
mind"
that case,
however, we
instruction
are
to determine
not reviewing
whether
it
this
"open
alone had
the
-3333
innocence.
Rather, we
should
colleagues'
be
viewed
reference
to
as
instruction cannot
curative.7
Nickens as
_______
As
controlling
such,
my
"circuit
sum,
it
the jury,
is
my strong
the trial
opinion
judge had an
that
when he
obligation to
in the minds of
a lengthy
question
does
standard
of
trial to
not
review, I
instruct the
alleviate
think
fundamental question
jury properly
the prejudice.8
these
on this
Under
convictions should
any
any
___
be
____________________
7. Moreover, I do not think that the court's error should
escape review merely because it entered into the record
specific
findings about
the
"demeanor"
and
visible
"sincerity" of each of the juror's answers to the question.
8. To bolster its affirmance, the majority refers to the
numerous occasions on which the district court, before the
juror misconduct allegations surfaced, instructed the jury on
the burden of proof.
Those instructions are, however,
utterly irrelevant in determining whether the district court,
later in the trial, made statements or gave instructions that
may have negated the presumption of innocence.
-3434
trial.9
Any other
a "`basic
profound judgment
about the
way in
which law
Sullivan v.
________
____________________
9. I further note that the majority opinion does not
adequately address the district court's failure to inquire
into Juror Luis Carrero Roman's admission that members of the
jury had, in fact, conversed about the case.
As we made
clear in United States v. Richman, 600 F.2d 286, 295 (1st
______________
_______
Cir. 1979), a trial court should conduct the following fourpart inquiry when faced with allegations that jurors may have
acted improperly:
[1] ascertain
whether the misconduct
actually
occurred;
[2] if
it did,
determine whether it was prejudicial; [3]
if not clearly unprejudicial, grant a new
trial; [and] [4] specify reasons if the
court
determines
either
that
the
misconduct did not take place or was not
clearly prejudicial.
Id. (citing United States v. Doe, 513 F.2d 709, 711-12 (1st
___
_____________
___
Cir. 1975)).
Here, after learning from Juror Carrero that
members of the jury had discussed the case, the district
court failed to inquire further and refused to allow defense
counsel to interject follow-up questions.
As a result, the
record contains no evidence about what types of discussions
__
Juror Carrero may have had with other jurors, or may have
overheard.
We are left to speculate. In light of all the
circumstances, I consider this error an alternative grounds
for reversal.
Furthermore, I cannot agree with the majority's cavalier
conclusion that "the judge essentially conducted a fullfledged inquiry when he asked the other jurors questions
which would have revealed precisely the impropriety which
Judge Stahl fears."
Ante, at 16 n.2.
First the record
____
contains no such "full-fledged inquiry"; and, second, any
inquiry of "the other jurors" could not possibly have
revealed anything about what Juror Carrero did or did not
know about the putative juror misconduct.
It appears,
therefore, that the once strict requirements of Richman have
_______
(quoting
(1968)).
Duncan
______
v,
WL 179275, at *4 (U.S.
Louisiana,
_________
I therefore dissent.
391
U.S.
June 1,
145,
155
-3636