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U.S. v. ORTIZ

April 20, 2005.

UNITED STATES OF AMERICA
v.
ROBERTO ORTIZ, Defendant.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Roberto Ortiz was convicted by a jury two months ago of possession of a firearm after having been convicted of a felony, witness tampering, and evidence tampering. He now moves pursuant to Fed.R.Crim.P. 29 to set aside the convictions for possession of a firearm and for evidence tampering and pursuant to Fed.R.Crim.P. 33 for a new trial. Because the government introduced sufficient evidence at trial to allow a rational finder of fact to conclude beyond a reasonable doubt that Ortiz was guilty of the charges for which he was convicted, and because the interests of justice do not require a new trial, defendant's motion is denied.

I. BACKGROUND

  The government charged Ortiz in a five count indictment with conspiring to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951; possession or use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c); possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1); witness tampering in violation of 18 U.S.C. § 1512(b)(1); and evidence tampering in violation of 18 U.S.C. § 1512(c). The government's theory of the case was that Ortiz agreed with David Reyes to rob a drug dealer of narcotics proceeds in the Washington Heights area of Manhattan while posing as police officers. The government sought to prove that on August 21, 2003, Ortiz, Reyes, and a confidential informant — Andy Morel — planned the details of the robbery as they drove around Washington Heights, first in Ortiz's white Lexus, and later in Reyes' black livery cab.

  At trial, the government introduced evidence that Ortiz drove to Washington Heights in his white Lexus on August 21 and picked up Reyes and Morel. After parking the Lexus in a garage and switching to Reyes' less conspicuous black livery cab, the three drove around for a time before they were stopped by three New York Police Department detectives, who were acting on a tip from Morel. The detectives removed Ortiz and the others from the car, and during a pat down search of Ortiz, found a loaded firearm in Ortiz's waistband and arrested him. The government relied primarily on alleged co-conspirator David Reyes' testimony to establish the existence of the conspiracy to rob the drug dealer. On the charge of possession of a firearm, the government relied primarily on the testimony of the detectives who arrested Ortiz, and on post-arrest statements made by the defendant to Detective Irvin Noak to the effect that he had received the weapon "from a righteous brother that lives in Brooklyn," (Tr. 495), and on statements Ortiz made to his girlfriend, Jennifer Colon.

  The witness and evidence tampering charges stem from Ortiz's attempts — subsequent to his arrest on August 21 — to prevent Colon from testifying against him at his trial and to make the white Lexus unavailable for use in the proceedings against him. To prove the witness tampering charge, the government relied primarily on recordings of Ortiz's conversations with his girlfriend and on her trial testimony. The evidence against the defendant on the evidence tampering charge consisted primarily of calls from the defendant to Colon and others, Colon's trial testimony, and the testimony of Alcohol, Tobacco and Firearms Special Agent Jason Zamaloff regarding his unsuccessful efforts to locate the Lexus.

  The evidence showed that on the night of Ortiz's arrest, while still in custody at the precinct, he spoke with Colon and told her that the gun was "a prop for a video." (Tr. 1048). Sometime before trial, Ortiz learned that Colon had repeated that statement to a federal law enforcement officer. (Tr. 1053). In recorded calls to Colon on June 14 and 15, 2004, the defendant confronted Colon about what she had said and told her that she had to leave her home to avoid being called as a witness at his trial. (Tr. 1065-67; Tr. of June 14, 2004, 9:56 p.m. Telephone Call; Tr. of June 15, 2004, 3:28 p.m. Telephone Call, at 1-2). Colon left her home for approximately one month, but remained in contact with Ortiz during that time. (Tr. 1068-69).

  The evidence also showed that in late June and early July, 2004, the defendant learned that federal agents were looking for his white Lexus. (Tr. 1072-74). The government produced a flurry of additional recorded calls made by the defendant from the Metropolitan Detention Center and Metropolitan Correction Center, where he was incarcerated pending trial, in which he instructed Colon to arrange to give the Lexus to another person and instructed another person to "take the Lex" and "do whatever you want with the car." (Tr. of June 30, 2004, 7:49 p.m. Telephone Call, at 1). He also instructed another person to tell Colon to "give [another person] my Lex immediately," (Tr. of July 1, 2004, 8:24 a.m. Telephone Call), and told Colon that "the most important thing is that he get the car." (Tr. of July 1, 2004, 7:11 p.m. Telephone Call, at 1).

  At the close of the trial, the jury acquitted Ortiz of Counts One and Two — the Hobbs Act robbery conspiracy and possession or use of a firearm in furtherance of that conspiracy. The jury convicted Ortiz of Counts Three, Four and Five, thereby finding that he had possessed a firearm after having been convicted of a prior, unrelated felony, that he had corruptly persuaded Colon with the intent to prevent her testimony at his trial, and he had corruptly concealed or attempted to conceal the white Lexus with the intent of making it unavailable for use at an official proceeding against him.

  II. DISCUSSION

  A. Rule 29 Motion to Set Aside the Verdict

  Defendant seeks a judgment of acquittal on Counts Three — possession of a firearm after having been convicted of a felony — and Five — evidence tampering — pursuant to Fed.R.Crim.P. 29, on the basis of insufficient evidence. A defendant challenging the sufficiency of the evidence supporting his conviction "`bears a heavy burden.'" United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (quoting United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001)). Such a motion will be granted only if the district court determines "that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. (citing Fed.R.Crim.P. 29(a), (c); United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002)).

  In reviewing the sufficiency of the evidence, the court "view[s] the evidence presented in the light most favorable to the government and draw[s] all reasonable inferences in the government's favor." See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). The evidence must be considered "`in its totality, not in isolation,'" United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir. 2001) (quoting United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), and the court will "`defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence.'" Id. (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). The jury verdict must be upheld if "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

  1. Count Three: Possession of a Firearm After Having Been Convicted of a Felony

  Ortiz urges that his conviction on the charge of possession of a firearm after having been convicted of a felony cannot stand because the gun found in his waistband and his inculpatory post-arrest statement to Detective Noak should have been suppressed as fruits of an illegal stop. Without that evidence, defendant concludes, no rational juror could have found the essential elements of the charge beyond a reasonable doubt.

  Prior to trial, Ortiz moved to suppress evidence of the gun and his post-arrest statement and a factual hearing was held on that motion. Prior to the hearing, the Court granted an ex parte motion by the government to limit the scope of examination at the hearing to preclude questioning regarding the role of the confidential informant — Andy Morel — in the vehicle stop. That ruling was confirmed again during the hearing. After the hearing, this Court denied Ortiz's suppression motion, finding that the government had presented credible evidence — through the testimony of Detective Noak — that the police had probable cause to believe the vehicle in question had committed a traffic violation, and thus the stop was constitutional. Specifically, the windows of Reyes' black livery cab were tinted more darkly than permitted by the New York Vehicle and Traffic Law.

  Ortiz argues that if he had been able to question Detective Noak regarding the confidential informant, the defense would have shown that the Vehicle and Traffic Law violation could not provide the legal basis for the stop because it played no part in Detective Noak's decision to stop the black livery cab. Defendant acknowledges the well-established rule that an automobile stop is reasonable if an officer has probable cause to believe that a traffic violation has occurred, even if the traffic violation is only a pretextual reason for the stop, see Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, ...


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