IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,Appellee,

v.

MIGUEL ORTIZ,

Defendant-Appellant.

>> >>

PETER J. TOMAO, ESQ.

Attorney for Defendant-Appellant226 7th Street, Suite 302

Garden City, New York 11530

516-877-7015

On Appeal from the United States District Courtfor the Southern District of New York (New York City)

12-3372-CR

BRIEF AND SPECIAL APPENDIX

FOR DEFENDANT-APPELLANT

MIGUEL ORTIZ

i

TABLE OF CONTENTS Page TABLE OF AUTHORITIES

iii PRELIMINARY STATEMENT

1 JURISDICTIONAL STATEMENT

3 STATEMENT OF ISSUES PRESENTED FOR REVIEW

4 STATEMENT OF FACTS

5 Background

5 Pre Trial Motions

9 The Trial

13 a) The Owner Of The Tahoe Could Not Testify That Mr. Ortiz Used It To

Deliver Drugs To Garcia

14

b) The Trial Court Permitted An Interpreter To Identify Mr. Ortiz As The Voice Of The Supplier On The Intercepted Telephone Calls

14

c) The Cellular Analysis Survey Failed To Establish That Mr. Ortiz Was Present At The Delivery Of The Heroin To Garcia

15

d) Over The Objections Of The Defense The Trial Court Admitted Evidence That Mr. Ortiz May Have Carried Money Related To Drug Sales On Six Occasions 18 Months Prior The Period Charged In The Indictment

16

e) The Jury Charge Relating To The 404(B)

20 f) The Allen Charge Results In A Guilty Verdict

21

The Sentencing

26 SUMMARY OF ARGUMENT

28 ARGUMENT

29

ii

POINT I – THE TRIAL COURT ERRED BY ADMITTING EVIDENCE THAT THE DEFENDANT ADMITTED TRANSPORTING DRUG MONEY AND ADMITTED THAT HE MAY HAVE DONE SO ON SIX OCCASIONS MORE THAN EIGHTEEN MONTHS BEFORE THE TIME OF THE CONSPIRACY CHARGED IN THE INDICTMENT

29

A. Standard Of Review

29 B. The Testimony Related To The Events Of 2009 Was Inadmissible Under

FRE 404(B)

31

1. The Challenged Evidence was Irrelevant on the Issue of Identity

32 2. The Challenged Evidence was Inadmissible on the Issues of

Knowledge and Intent

35

C. The Probative Value Of The 2009 Events Was Substantially Outweighed By The Risk Of Unfair Prejudice And Misleading The Jury

36

D. Admitting Evidence Of The 2009 Events Was Not Harmless

38 POINT II- THE TRIAL COURT ERRED BY PERMITTING THE INTERPRETER TO TESTIFY BASED ON HER TRAINING AND EXPERIENCE THAT MR. ORTIZ WAS THE SPEAKER IN THE RECORDED CONVERSATIONS

40

A. Standard of Review

43 B. The District Court Erred by Permitting the Government to Elicit

Expert Opinion Testimony to Identify Mr. Ortiz as the Speaker on the Recorded Conversations

44

POINT III- THE TRIAL COURT ERRED BY CHARGING THE JURY TO CONTINUE ITS DELIBERATIONS AFTER IT REPORTED SEVERAL TIMES THAT IS WAS DEADLOCKED AND REVEALED THAT THERE WAS A SINGLE HOLDOUT

48

A. The Standard Of Review

48 B. The Trial Court’s Instructions Undermined The Resolve Of The Sole

Hold-Out To Maintain His Or Her Conscientiously Held Belief That The Government Had Not Proven Its Case Beyond A Reasonable Doubt

49

CONCLUSION 52

iii

TABLE OF AUTHORITIES

CASES

PAGE

Allen v. United States, 164 U.S. 492 (1896)

48 Huddleston v. United States, 485 U.S. 681 (1988)

31 Old Chief v. United States, 519 U.S. 172 (1997)

37 Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999)

49 Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006)

49 United States v. Abreu, 342 F.3d 183(2d Cir. 2003)

30, 43 United States v. Albergo, 539 F.2d 860 (2d Cir. 1976)

44 United States v. Brand, 467 F.3d 179 (2d Cir. 2006)

29 United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979)

46

United States v. Carlton, 534 F.3d 97 (2d Cir. 2008)

34,35 United States v. Colon, 880 F.2d 650 (2d Cir. 1989)

32 United States v. Corey, 566 F.2d 429 (2d Cir. 1977)

36 United States v. Curley, 639 F.3d 50 (2d Cir. 2011)

32, 36 United States v. Danzey, 594 F.2d 905 (2d Cir. 1979)

34 United States v. Edwards, 342 F.3d 168 (2d Cir. 2003)

35 United States v. Figueroa, 548 F.3d 222 (2d Cir. 2008)

30 United States v. Garcia, 291 F.3d 127 (2d Cir. 2002)

35 United States v. Garcia, 413 F.3d 201 (2d Cir. 2005)

30 United States v. Gilan, 967 F.2d 776 (2d Cir. 1992)

31,37 United States v. Gordon, 987 F.2d 902 (2d Cir. 1993)

35 United States v. Green, 523 F.2d 229 (2d Cir. 1975)

48,49 United States v. Han, 230 F.3d 560 (2d Cir. 2000)

43 United States v. Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999)

38 United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007)

38 United States v. Kenner, 354 F.2d 780 (2d Cir. 1965)

50 United States v. LaFlam, 369 F.3d 153(2d Cir. 2004)

30,31

iv

United States v. Lombardozzi, 491 F.3d 61 (2d Cir. 2007)

29, 38 United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999)

33, 43 United States v. Madori, 419 F.3d 159 (2d Cir. 2005)

30 United States v. McCallum, 584 F.3d 471(2d Cir. 2009)

29,31 United States v. Mejia, 356 F.3d 470 (2d Cir. 2004)

50 United States v. Meyers, 410 F.2d 693 (2d Cir. 1969)

50 United States v. Moskowitz, 215 F.3d 265 (2d Cir. 2000)

43 United States v. Myerson, 18 F.3d 153 (2d Cir. 1994)

32 United States v. Nwaneri, 1996 U.S. App. LEXIS 566 (4th Cir. Jan. 17, 1996)

50

United States v. Paulino, 445 F.3d 211 (2d Cir. 2006)

30, 35, 37, 44 United States v. Peterson, 808 F.2d 969 (2d Cir. 1987)

35 United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)

48,49 United States v. Rogers, 289 F.2d 433 (4th Cir. 1961)

50 United States v. Rommy, 506 F.3d 108 (2d Cir. 2007)

40,44 United States v. Sappe, 898 F.2d 878 (2d Cir. 1990)

34 United States v. Scott, 677 F.3d 72 (2d Cir. 2012)

31,33, 38 United States v. Sliker, 751 F.2d 477 (2d Cir. 1984)

34,46 United States v. Tropeano, 252 F.3d 653 (2d Cir. 2001)

43, 44 United States v. Ulerio, 859 F.2d 1144 (2d Cir. 1988)

46 United States v. White, 692 F.3d 235 (2d Cir. 2012)

30

STATUTES

18 U.S.C. § 846

2 18 U.S.C. §3143

26 18 U.S.C. §3231

3 18 U.S.C. §3742(a)

3 28 U.S.C. §1291

3

v

FEDERAL RULES OF EVIDENCE

Rule 403

10,12,36,37,38 Rule 404(b)

4,10,20,30,31,32,33,34 Rule 701

45,46 Rule 701(c)

45,46 Rule 702

45, 46 Rule 901 Notes of Advisory Committee on Rules

44 Rule 901(b)(5)

44, 45 FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 16(a)(1)(G)

46

1

12-3372

IN THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL ORTIZ,

Defendants-Appellant.

On Appeal from the United States District Court

For the Southern District of New York

BRIEF FOR DEFNDANT- APPELLANT MIGUEL ORTIZ

PRELIMINARY STATEMENT

Miguel Ortiz appeals from the judgment imposed on August 9, 2012, in the

United States District Court for the Southern District of New York by United

States District Judge Denise Cote (A459-464).1

1 “A” followed by numbers refers to pages in the Joint Appendix filed with this brief. “GX” refers to government exhibits. “PSR” followed by paragraph (¶) numbers refers to the PreSentence Investigative Report dated August 1, 2012.

2

Mr. Ortiz, who is now 45, was charged with being a member of a narcotics

conspiracy which allegedly existed in January 2011. Following a number of

erroneous court rulings, the jury found that Mr. Ortiz was a member of the

conspiracy.

At the time of his arrest, Mr. Ortiz had a job installing fire sprinklers and

resided with his fiancée and her two children from a prior relationship (PSR ¶¶ 50,

51, 61).

Mr. Ortiz was convicted of one count of Conspiracy in violation of 18

U.S.C. §846 following a jury trial over which Judge Cote presided from April 30,

2012 through May 7, 2012. The jury also found without sufficient evidence that the

drug quantity involved exceeded one kilogram.

On August 9, 2012, the district court sentenced Mr. Ortiz to a term of 151

months incarceration and a supervised release term of five years.

Mr. Ortiz is currently incarcerated on that sentence.

3

JURISDICTIONAL STATEMENT

The district court had jurisdiction pursuant to 18 U.S.C. §3231, which grants

district courts original jurisdiction over all alleged offenses against the United

States committed in that district. This case was initiated in the Southern District of

New York on July 13, 2011, with the filing of felony complaint 11-mj-01829. Mr.

Ortiz was released on bail on July 15, 2011. A grand jury returned indictment 11-

875 which was filed on October 13, 2011 (A10-13).

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1291 and 18

U.S.C. §3742(a).

4

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The following issues are presented by this Appeal:

Was there sufficient evidence to support the judgment?

Did the court below err by admitting evidence under FRE 404(b), namely

evidence obtained and statements made during an unrelated stop more than

eighteen months prior to the alleged drug deal that Mr. Ortiz probably had carried

drug money on six occasions?

Did the court below err by permitting the interpreter to identify Mr. Ortiz as

the speaker on the recorded telephone calls based on her training and experience?

Did the court below err by failing to discharge the jury and instead giving

the jury a second Allen charge which put undue pressure on sole hold out juror?

5

STATEMENT OF FACTS

Background

On January 28, 2011, law enforcement agents arrested Omar Garcia in

possession of an automobile battery which contained approximately six kilograms

of heroin. The agents had observed Garcia meet with another individual in the

parking lot of the Metro Mall in Queens, New York. Mr. Ortiz was arrested almost

six months later on July 14, 2011 in Queens, New York.

The Garcia arrest resulted from an investigation of a heroin distribution ring

conducted by special agents of the U.S. Drug Enforcement Administration

(“DEA”) and the Union County New Jersey Prosecutor’s Office (“UCPO”) (PSR ¶

7). As part of the investigation, the UCPO tapped Garcia’s telephone.

Garcia is a repeat offender drug dealer. He is a Colombia citizen who came to

the United States illegally on several occasions (A111-113). When he first illegally

entered this country in 1986, Garcia worked in a factory using fake papers (A115).

Shortly thereafter in 1987-88 he started selling cocaine (A115-116). He was

arrested in 1990 and served two years in prison (A116). After he completed that

sentence, he was deported to Colombia only to return to the United States and

resume selling drugs (A117).

In 2010, Garcia was arrested again delivering money which he had gotten

from dealing drugs (A117). After police seized the money, Garcia called the

6

person who sent drugs from Colombia, whom he identified as “Pina.” Garcia

agreed to repay money to Pina by distributing illegal drugs for (A120-121). Garcia

had picked up heroin for Pina twice before his arrest in this case (A165).

On January 11, 2011, Garcia agreed to pick up six kilograms of heroin for

Pina that was coming to New York hidden in an automobile battery (A121).

(Garcia testified that on the two prior occasions on which he had picked up heroin

for Pina he dealt with a different “supplier2” (A165).)

During the week of January 24, 2011, the agents intercepted a series of calls

in which Garcia made plans to accept delivery of approximately six kilograms of

heroin for Pina. The heroin was to be hidden in an automotive battery casing.

In an intercepted telephone call on January 27, 2011, Garcia and Pina discussed

that delivery and agreed to use passwords "fruta" and "gavilan"3 (A125, 128).

On January 28, 2012, Garcia had several conversations with the “supplier”

who used cellular telephone number 347-925-95074. At 6:06 pm, the agents

intercepted an incoming call to Garcia from the 347 number. In this call the

“supplier” told Garcia that he was “calling of behalf of Fruta” to which Garcia

2 The term “supplier” was used to describe the delivery man rather than identify the true source of the drugs. 3 The code word "fruta" is Spanish for "fruit" and "gavilan” is Spanish for "hawk." 4 Garcia used different telephone numbers make calls to contact “Pina” and the “supplier”. He used 973-885-8918 for several calls with the supplier (all on January 28, 2011 between 6:06 and 9:04 pm)(A128-129, 141, 143-144) for calls with Pina who used 300-817-8167 (A125, 130).

7

responded that he was “Gavilan” (A128). Garcia made plans to meet the “supplier”

at the Metro Mall in Queens, NY (A129). Garcia reported to Pina that he had

received a call from the “supplier” (A131). In a subsequent call, Garcia agreed to

meet the “supplier” around 8:30 pm (A131).

Garcia arranged for his friend, Carlos Zapata, to drive him to Queens in

Zapata’s Toyota Camry to meet the supplier (A129).

Law enforcement agents observed Garcia leave his residence in Elizabeth,

New Jersey around 7:10 pm and enter a Camry driven by another person, later

identified as Zapata. The agents followed the Camry to the Metro Mall in Queens

(A86).

At 8:46 pm, Garcia called the 347 number and said that he had arrived at the

mall (A143). The agents intercepted a series of further calls in which Garcia and

the supplier coordinated the precise time and place to meet. At 9:04 pm, the caller

told Garcia that he was driving a green Tahoe truck (A144-145).

The surveillance agents observed the Camry rendezvous with the Tahoe. At

this point Garcia exited the Camry and met the driver of the Tahoe. The agents

could not see the person with whom Garcia met. They were only able to describe

what the person was wearing as “winter clothing” (A105). At trial, Garcia said

that the supplier was wearing a work jacket (A164).

When Zapata parked the Camry near the Tahoe, the supplier put the battery in

8

the trunk of the Camry (A148-149). The agents observed the trunk of the Camry

open and close but could not see anyone put anything in the trunk (A104-105).

Garcia then reentered the Camry which exited the shopping mall parking lot (A84).

Surveillance agents followed the Camry back to New Jersey where they

stopped the vehicle (A150). The agents searched the truck of the Camry and

seized an automobile battery (A151). Inside the battery, the agents found several

bricks wrapped in duct tape (A170). Subsequently, laboratory analysis of the

bricks concluded that they contained approximately six kilograms of heroin

(A170).

On the night of the delivery, another agent followed the Tahoe as it left the

parking lot. He observed color and license plate number of the Tahoe before he

lost sight of it (A85). The agents determined that the Tahoe was registered to

Kenny Vasquez (A87). The agents did not stop the vehicle and did not observe

where it went that evening (A85-86).

Following his arrest, Garcia identified the supplier as a man named “Miguel

Cabrera” (A155). However, this identification did not satisfy the agents. On April

14, 2011, Garcia satisfied the agents by identifying two photographs, including one

of Mr. Ortiz as the supplier (A153).

A DEA agent recorded a “ruse” call to number 646-417-3871 on April 21,

2011 (A189-190). This number was assigned to Miguel Ortiz at 1708

9

Summerfield Street, Apartment A4, Ridgewood, New York. Phone records

indicated that this number was in service from April 21, 2010 until at least in or

about January 2012 (A229).

On July 14, 2011, law enforcement agents arrested Mr. Ortiz at his residence

at 101-20 67th Drive, Forest Hills. The agents searched his residence and seized

two blackberry phones (A95-96); $7,980 in United States currency from a

bedroom dresser drawer; a red Nokia cellular phone and deposit slips from Chase

Bank recovered from a dresser drawer (A96); a black Samsung cellular phone and

a small black plastic bag recovered from a dresser drawer (A96); two Chase Bank

folders containing banking information recovered from a dresser drawer (A96);

papers and documents from the front passenger of a 2004 green Toyota Corolla

with New York license plate number FHZ7738 registered to Miguel Ortiz (A96-

97).

One of the phones seized on July 14, 2011, had the telephone number 646-

417-3871 but none of the seized phones had the number used by the supplier

namely 347-925-9507 (A96).

Pretrial Motions

Prior to trial, the district court granted the government’s motion to permit the

interpreter to offer lay opinion testimony identifying the voice of the “supplier” on

the recorded conversations and on the ruse call as being that of Mr. Ortiz.

10

The court reserved decision on the government’s motion to elicit testimony

that DEA agents stopped Mr. Ortiz carrying approximately $100,000 drug money

in May 2009 using a vehicle registered to Vasquez and that Mr. Ortiz admitted he

had probably carried drug money on as many as five occasions, the last 18 months

prior to the conspiracy charged in the indictment. (The trial court and the parties

referred to the facts surrounding the stop and the statements in the record

collectively as the “events of May 2009” (A235)).

The defense objected to admitting the events of May 2009 pursuant to Rules

404(b) and 403 of the Federal Rules of Evidence (A33). The defense argued that

in 2009, Mr. Ortiz did not clearly admit that he knew he was transporting drug

money and that carrying drug money was dissimilar from the charge of conspiracy

which was to distribute heroin (A33-34).

The government argued that the evidence of prior arrest and his statements

were “highly relevant to the issue of identity [and] … the issue of knowledge,

insofar as the fact that the defendant had previously been found with a large

amount of cash which he admitted had probably been derived from drug

proceeds” (A34-35) (emphasis added).

Judge Cote found that there was sufficient similarity to admit the evidence on

the “issues of knowledge and intent” but questioned whether to admit it on the

issue of identity (A49). The trial court said that there was similarity on three

11

points: (1) the nature of the goods being delivered (notwithstanding the fact that

the 2009 statements dealt with drug money and the case on trial dealt with drugs);

(2) the concealment of the goods (notwithstanding the fact that in 2009 the money

was merely held in a suitcase, while in 2011 the heroin was secreted in a car

battery case); and (3) the use of a vehicle registered to the same third person. The

trial judge reserved final decision (A35).

Prior to trial, the district judge also inquired into whether the government

had made a plea offer to Mr. Ortiz and placed its terms on the record (A24-32).

The trial court noted that under the proposed stipulated guidelines level of 31 at

criminal history category II the guideline sentence would 121 months to 151

months and that there was a mandatory minimum sentence of five years and a

maximum term of 40 years (A27) and that, after trial, if convicted Mr. Ortiz would

face guidelines level of 34 at criminal history category II the guideline sentence

would 168 months to 210 months and that there was a mandatory minimum

sentence of ten years and a maximum term of life (A29-30). The government

indicated that in either case, Mr. Ortiz could make a motion for a non-guidelines

sentence. Mr. Ortiz’s trial counsel indicated that he explained the parameters of the

possibilities of a plea and the results after trial to Mr. Ortiz but did not make

recommendations as to whether he should take the plea offer (A31).

12

Prior to jury selection on April 30, 2012, over the objection of the defense,

the district court granted the government’s in limine motion to admit evidence that

during a traffic stop on May 28, 2009, Mr. Ortiz acknowledged the likelihood that

he was transporting drug money and that he may have been the delivery person for

drug money on several other occasions. The lower court ruled that the proffered

evidence was “clearly admissible under Second Circuit authority for [the] purpose

of [knowledge and intent]” (A49). Judge Cote explained that “All you need is

similarity or a connection and there has to be substantial relevance. I think that is

clearly present here based on the similarities I have already described, the four

components -- three of them stronger than the fourth, but certainly present” (A49).

On the issue of identity, the district court found that there was sufficient

similarity when the four aspects are taken together:

-- the defendant's role as a delivery person, the connection of the items to the drug trade, the use of delivery vehicle as the go-to vehicle for deliveries and, to a lesser extent, the concealment of the items being delivered to make this admissible on the issue of identity as well.

(A50). However, the trial judge reserved final decision on the motion for trial and

repeated her direction that neither party could discuss this evidence in its opening

statement (A50-51).

In ruling on the in limine motion, the lower court failed to address the issue

raised by the defense under FRE Rule 403, namely that the probative value of the

13

proffered evidence was outweighed by other considerations such as the risk of

unfair prejudice or misleading the jury.

The Trial5

The issue at trial in this case was whether Mr. Ortiz was the “supplier” who

delivered the battery case containing Pina’s heroin6 to Garcia in the Metro Mall

parking lot.

Garcia identified Mr. Ortiz as the supplier at trial but admitted that he had

identified another person as the supplier for approximately four months following

his arrest (A146-148, 152). He also admitted that he then selected Mr. Ortiz’s

picture along with another picture from eight to ten photographs which the agents

showed him (A156). Of course, Garcia was testifying pursuant to a cooperation

agreement with the government (A156).

To attempt to corroborate Garcia’s identification testimony, the government

offered the testimony of the owner of the black Tahoe observed at the Metro Mall,

5 The trial began with preliminary matters and jury selection on Monday, April 30, 2012 at 9:30 am. Six witnesses testified: the surveillance agent, Shane Todd; the drug dealer, Omar Garcia; the owner of the Tahoe, Kenny Vasquez; the interpreter, Elizabeth Caruso; the agent who told the 2009 statement, Michael Krol; and the agent who conducted the cellular analysis, Eric Stephen Perry. Testimony was completed at the end of the second day on May 1, 2012 (A293). Following summations and the jury charge, the jury began its deliberations on May 2, 2012 at 12:35 pm (A389). 6 The parties stipulated that DEA chemist determined that the substance within battery, which was designated GX 1, was heroin with a total net weight of 5998.9 grams (A169-170).

14

identification of Mr. Ortiz’s voice as that of the supplier on the intercepted calls

and evidence of a cellular analysis survey. In addition, the lower court allowed

testimony relating to the seizure of money from him and his alleged statements

which predated the conspiracy charged in the indictment by more than a year and a

half.

a) The Owner of the Tahoe Could Not Testify that Mr. Ortiz Used It to Deliver Drugs to Garcia

Kenny Vasquez testified that he owned a Chevy Tahoe which the agents had

seen during the surveillance. While he said that he allowed Mr. Ortiz to use it

whenever he wanted (A178-179), he also said he left the keys to the Tahoe on the

window sill so he couldn’t say who had used the Tahoe at the time of the

surveillance (A183).

b) The Trial Court Permitted an Interpreter to Identify Mr. Ortiz as the Voice of the Supplier on the Intercepted Telephone Calls

The government also elicited testimony from Elizabeth Caruso, a self-

employed Spanish-English interpreter and translator who prepared the transcripts

used by the government at trial. Garcia did not identify Mr. Ortiz as the speaker on

the recorded calls he had with the supplier.

Ms. Caruso testified that she had been present when Mr. Ortiz provided a

voice exemplar (A193). The parties also stipulated to the admission of recordings

of “ruse” calls which an agent made to a phone registered to Mr. Ortiz (A199).

15

Using the exemplar and the recording of the ruse calls, she identified the voice

identified as the supplier in the calls intercepted by the government as being that of

Mr. Ortiz (A196).

On cross-examination, Ms. Caruso admitted that she never received any sort

of certification in the area of voice identification and linguistics and had never

testified as an expert in those areas (A217). Despite admitting that she was not an

expert, and over the objection of the defense, the lower court allowed her to

expand upon the basis of her opinion from her training and experience as an

interpreter.

Q. What else is your opinion based upon?

MR. LOBOSCO: Objection.

THE COURT: Overruled.

A. After having listened to all of the audios, the voice, the sound of the voice and, again, the musicality of the voice to me was the same throughout, in the exemplar, in the ruse call, and in the intercepted phone calls, same accent, same way of speaking, same tone, same cadence, same pitch. (A218-219).

c) The Cellular Analysis Survey Failed to Establish that Mr. Ortiz was

Present at the Delivery of the Heroin to Garcia The government elicited testimony from Agent Eric Perry regarding cellular

data analysis in an attempt to show that Mr. Ortiz was present at the Metro Mall

when Garcia received a delivery of heroin on January 28, 2011. The testimony of

16

Agent Perry did not show that the phone registered to Mr. Ortiz (646-417-3871)

and the phone used by the supplier (347-925-9507) were at the Metro Mall on the

night in question.

Agent Perry testified that since the cell phone tower sectors picked up data

from two phones around the same time on the night of January 28, 2011, Mr. Ortiz

must have been near the Metro Mall (A265, 285). On cross-examination, Agent

Perry testified that a sector could reach up to six miles (A288). He admitted that it

was possible that the two phones were not even together within the sector (A292).

Agent Perry further conceded that it was just as likely the phones could have been

at opposite ends of the sector (A290-291).

The testimony of Agent Perry failed to show the two phones were together

within the sector that encompassed the Metro Mall, let alone that they were

together in the Metro Mall itself.

d) Over the Objection of the Defense The Trial Court Admitted Evidence that Mr. Ortiz May Have Carried Money Related to Drug Sales on Six Occasions 18 Months Prior the Period Charged in the Indictment

Although the indictment charged that Mr. Ortiz participated in a narcotics

conspiracy during the month of January 2011, the trial court admitted testimony

that in 2009 Mr. Ortiz was stopped carrying money which he told the agents may

be related to narcotics transactions and that he said he may have done so on five

prior occasions. The last of these occasions was on the date of his arrest in May

17

2009, more than eighteen months prior to the conspiracy charged in the indictment.

Moreover, the government alleged that Mr. Ortiz’s role in the alleged conspiracy

was as a “supplier” or deliveryman and not as a money courier.

Over the objection of the defense, Michael Krol testified that in May 2009

when he was a DEA agent, Mr. Ortiz admitted that he was carrying drug money

and had done so in the past. Agent Krol testified that on May 28, 2009, he was part

of a team which was conducting a “money pick-up” as well as surveillance in

Queens, NY (A221-222).

Although the government had advised the trial court that it would present the

“agent who seized the money and heard the defendant's admissions” (A40), Agent

Krol was unable to recall key elements of the events and had to refer to the report

of the stop.

Agent Krol told the jury that:

"Money pickup," in my experience, is a financial transaction without the use of a bank, an actual financial entity, between two or more people actually both moving sums of U.S. currency to a specific destination, typically to avoid some type of reporting requirement or tax burden, and to actually deliver money to a certain source. (A220-221).

Agent Krol said he had participated in “roughly 50 to 75, if not more “money

pickups” during his time at the DEA (A221).

18

Since Agent Krol was unable to recall the details of the events of May 28,

2009, the trial judge allowed him to read from his report (A225-226). Based on the

report, Agent Krol testified that he and another agent stopped a vehicle driven by

“Miguel Ortiz.” The agent said that “To the best of my recollection he was very

nervous, not making eye contact with us” (A224). After approaching the vehicle,

Agent Ortiz observed a black suitcase in the vehicle. The agents then searched the

vehicle and found a black bag which contained “another bag in cellophane

containing a large sum of United States currency” (A225).

Agent Krol testified that when he confronted Mr. Ortiz with the currency:

Mr. Ortiz stated that he did not know who the money belonged to, only that he knew that there was money in the bag, and that 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.

(A226) (emphasis added).

Agent Krol testified using his report because he had no present recollection

of Mr. Ortiz’ statements. The agent testified that Mr. Ortiz was not arrested but

that the agents seized the currency which was forfeited into a seizure fund after the

government determined that the money was “not legitimate” (A227).

19

On cross examination, Agent Krol was unable to recall what was said to Mr.

Ortiz before he made the alleged admissions. Agent Krol conceded that there were

no drugs found in the car or anything hidden in a “car battery.” (A228). He also

acknowledged that the money was found in a suitcase but that it was not hidden in

any way (A228-229).

After Agent Krol testified, several stipulations were read and the Court took

the luncheon recess. When the trial resumed, Judge Cote gave the following

instruction to the jury:

THE COURT: 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 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

20

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 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.

(A234-235). The defense did not object to this instruction. During her summation, the prosecutor commented on this evidence by

answering her own rhetorical question “What else shows that Ortiz knew that the

battery was full of heroin?” with:

The fact that in 2009, Ortiz was stopped by the DEA while he was delivering $100,000 in what Ortiz admitted was probably drug proceeds. In 2009 Ortiz knew that the money was not legitimate. It was drug money. In 2011, Ortiz knew that the battery was not a real battery. It was a container of heroin.

(A312).

e) The Jury Charge Relating to the 404(b) Evidence

Judge Cote substantially repeated the instructions which she gave during the

trial in the final jury charge:

21

Let me say a little bit more about the testimony regarding the events of May 28, 2009. Let me remind you that the defendant is not on trial for committing 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 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 that it sheds, if any, on the identity of the person who possessed and transferred a battery in January 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, and on whether the defendant acted because of innocent mistake or accident in connection with the events of January 2011. Evidence of the events of May 28, 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 events, he must have committed the crime charged in the indictment.

(A377-378) (emphasis added).

f) The Allen Charge Results in a Guilty Verdict

After deliberating for two and a half days, more time than the trial itself and

sending ten notes requesting clarification of the instructions as well as specific

22

evidence, the jury advised the trial judge that they were deadlocked. The jury note,

Exhibit 11, read: "Dear Judge Cote: We are at an impasse and cannot come to a

unanimous decision on a verdict" (A414).

In response the trial judge gave the following charge as follows:

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 to 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 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."

23

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.

(A416-417). Two hours later, the jury requested an earlier adjournment. Their note,

Exhibit 13, read:

Your Honor: At this time we are requesting to be released early for today. The 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 [sic] deliberations.

Thank you for your consideration.

(A418).

Without objection, the trial judge excused the jury for the day.

The next day the jury sent the following note to the trial court (Court Exhibit

14):

Your Honor, a clarification, please:

It revolves around the second element, conscious avoidance, as presented on page 16 of the jury charge.

If we were to find the defendant guilty (the first part of the verdict form) of being part of the conspiracy, but was perhaps ignorant of a material fact, such as the content of the battery or the amount of heroin contained in the battery, how do we reconcile that with the second part of the verdict form regarding quantity? Particularly, looking at the last two lines on page 16, please provide us with some additional explanation and guidance.

24

(A425).

In response, the trial judge went over the jury charge at length (A425-430).

The lower court then charged the jury to continue its deliberations:

Again, I want you to consider everything that's in this jury charge, but I have tried to focus on the key passages and some of the key trigger language to be responsive to your note.

If you still need further guidance, I am happy to provide it to you, but I am hoping that walking through this in this way has been of use to you and that you feel it is responsive. And with that, please return and continue your deliberations.

(A430).

However, the jury was still unable to reach a verdict. About two hours after

the lower court gave the instructions, the jury again reported it was at an impasse

and in violation of the court’s directive revealed that there was a single hold-out

juror. In Court Exhibit 15, the jury reported:

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 movement on the juror's position regarding the government's proof of the defendant's involvement in the conspiracy beyond a reasonable doubt.

(A430-431).

25

After the trial judge disclosed the note, the defense asked the trial judge to

discharge the jury. The lower court denied the motion and said that she would

excuse the jury for the weekend (A432). Without advising counsel in advance, the

trial judge gave the jury the following instruction:

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 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 night’s 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.

(A433-434).

This charge prejudiced Mr. Ortiz by putting undue pressure on the hold-out

juror.

On Monday, May 7, 2012, the jury resumed its deliberations and almost

immediately sent a note indicating that they were considering the weight of the

drugs seized. The note stated:

Dear Judge Cote: Considering that both parties have agreed on the quantity of heroin involved (Exhibit 204), could you please explain

26

why we need to address questions 2 and 3 on the verdict form? Please provide additional guidance and instruction. Thank you.

(A437).

Twenty minutes after the trial judge answered that question, the jury

returned its verdict finding Mr. Ortiz guilty of the single count of the indictment.

The jury also found that the amount of heroin involved as greater than one

kilogram. After polling the jury, the trial court excused them (A441). Although

Mr. Ortiz made all his court appearances, Judge Cote remanded him pursuant to 18

U.S.C. §3143 (A444).

The Sentencing

Prior to sentencing on August 9, 2012, Judge Cote asked the parties to

consult again and suggested that this might be Mr. Ortiz’s last opportunity to

cooperate and thereby reduce his sentence. Judge Cote directed counsel to:

consult with each other for a moment to make sure that the defendant isn't seeking an adjournment and an opportunity to consult with the government in any way, shape, or form that could affect his sentence. If he isn't, that's fine. Choices can be made for any number of good reasons. And if this is the sentencing record that I have today to move forward on, I will. I just want to make sure that today is the right day for sentencing Mr. Ortiz.

(A449).

As the lower court requested, the parties consulted. Defense counsel then

stated that after speaking with the prosecutor and his client: “there is no reason not

to go forward” (A449).

27

The lower court then reduced the criminal history level in the PSR from

Category II to Category I and sentenced Mr. Ortiz to the lower end of the resulting

sentencing guideline – 151 months (A454, 456).

Mr. Ortiz is presently incarcerated on that sentence.

This appeal follows.

28

SUMMARY OF ARGUMENT

The trial court erred by admitting evidence that the defendant admitted

probably transporting drug money on six occasions more than eighteen months

before the time of the conspiracy charged in the indictment (Point I).

The trial court erred by permitting the interpreter to testify that Mr. Ortiz

was the speaker in the recorded conversations based on her training and experience

(Point II).

The trial court erred by charging the jury to continue its deliberations after it

reported several times that is was deadlocked and revealed that there was a single

holdout (Point III).

29

ARGUMENT

POINT I

THE TRIAL COURT ERRED BY ADMITTING EVIDENCE THAT THE DEFENDANT TRANSPORTED DRUG MONEY AND ADMITTED THAT

HE MAY HAVE DONE SO ON SIX OCCASIONS MORE THAN EIGHTEEN MONTHS BEFORE THE TIME OF THE CONSPIRACY

CHARGED IN THE INDICTMENT

Over the objection of the defense, the trial judge admitted evidence that Mr.

Ortiz was stopped in 2009 carrying a suitcase containing $100,000 in cash in a car

also registered to Mr. Vasquez and that he had told DEA agents that he may have

transported the proceeds of narcotics transactions on as many as six occasions prior

to the instant case. The trial judge admitted this evidence on the issues of “identity”

as well as “knowledge and intent.”

A. Standard of Review

This Court reviews a district court's admission of evidence of prior crimes

for abuse of discretion. United States v. McCallum, 584 F.3d 471, 474 (2d Cir.

2009); United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir. 2007); United

States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006).

Abuse of discretion occurs when the court acts in "an arbitrary and irrational

manner." United States v. Lombardozzi, 491 F.3d at 78-79. This Court will also

find that a district court abused its discretion "when (1) its decision rests on an

error of law (such as application of the wrong legal principle) or a clearly

30

erroneous factual finding, or (2) its decision—though not necessarily the product

of a legal error or a clearly erroneous factual finding—cannot be located within the

range of permissible decisions." United States v. White, 692 F.3d 235, 244 (2d Cir.

2012) quoting United States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008).

A district court's decision to admit evidence is subject to harmless error

analysis. Fed. R. Crim. P. 52(a); United States v. Madori, 419 F.3d 159, 168 (2d

Cir. 2005). The main harmless error inquiry is whether the contested testimony

was unimportant in relation to everything else the jury considered on the issue in

question, as revealed in the record. See United States v. Garcia, 413 F.3d 201, 217

(2d Cir. 2005) (holding that erroneous admission of evidence was harmless where

it "had no substantial and injurious effect or influence on the jury verdict" (internal

quotation marks omitted)).

This Court will order a new trial because of an erroneous evidentiary ruling

unless the error was “harmless." United States v. Abreu, 342 F.3d 183, 190 (2d Cir.

2003). The Court explained that "[W]e will deem an evidentiary error harmless if

we can conclude that the proof at issue was unimportant in relation to everything

else the jury considered on the issue in question, as revealed in the record." United

States v. Paulino, 445 F.3d 211, 219 (2d Cir. 2006).

While this Circuit has adopted an "inclusionary" approach to other act

evidence under Rule 404(b), see United States v. LaFlam, 369 F.3d 153, 156 (2d

31

Cir. 2004) (per curiam), the Court has repeatedly emphasized that the inclusionary

rule is not “a carte blanche to admit prejudicial extrinsic act evidence when, as

here, it is offered to prove propensity.” United States v. Scott, 677 F.3d 72, 79 (2d

Cir. 2012), citing, United States v. McCallum, 584 F.3d at 477.

The Supreme Court laid out the inquiry to be followed for reviewing such

cases in Huddleston v. United States, 485 U.S. 681, 691-92 (1988). See also

United States v. Gilan, 967 F.2d 776, 780 (2d Cir. 1992) (discussing adoption of

Huddleston test). Under Huddleston, "[t]o determine whether a district court

properly admitted other act evidence, the reviewing 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 limiting instruction to the jury if so requested by

the defendant." United States v. Scott, 677 F.3d at 79 citing United States v.

LaFlam, 369 F.3d at 156.

B. The Testimony Related to the Events of 2009 Was Inadmissible Under FRE 404(b).

Rule 404(b) of the Federal Rules of Evidence limits the use of other act

evidence at trial. Specifically the Rule prohibits certain uses of such evidence:

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

FRE Rule 404(b)(1).

32

The Rule, however, allows it use for certain limited purposes:

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

FRE Rule 404(b)(2).

Evidence under this rule, a trial court may not admit evidence to prove the

defendant's bad character or criminal propensity. United States v. Curley, 639 F.3d

50, 57 (2d Cir. 2011); United States v. Myerson, 18 F.3d 153, 166 (2d Cir. 1994);

United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989).

In the instant case, the trial judge admitted the evidence of the events of

2009 to sure “identity” as well as “knowledge and intent” but in fact, the evidence

was limited to showing Mr. Ortiz’s criminal propensity and as such was

improperly admitted.

1. The Challenged Evidence Was Irrelevant on the Issue of Identity

It is beyond cavil that FRE 404(b) authorizes the use of other act evidence to

prove “identity” but the evidence in this case was offered not to prove “identity’

but to show propensity.

This is not a case in which the government offered “recognition” testimony.

Agent Krol did NOT testify that he recognized Mr. Ortiz as the supplier in the

Metro Mall parking lot in January 2011 because he had met him in May 2009.

Under these circumstances, Agent Krol’s testimony that he recognized Mr. Ortiz as

33

the man to whom he spoke in May 2009 is not relevant to the issue of whether Mr.

Ortiz was the supplier in the Metro Mall parking lot in January 2011. So the

evidence was inadmissible on that basis.

Even if Agent Krol’s testimony that he recognized Mr. Ortiz was relevant to

identity, his testimony regarding Mr. Ortiz’s actions and alleged statements was

not relevant to that issue and can be justified on that ground. In United States v.

Lumpkin, 192 F.3d 280 (2d Cir. 1999), this Court held that a law enforcement

officer's testimony which established that the defendant frequented the area where

the drug sales took place “simply does not fall within the ambit of other crimes

evidence that may be excluded under Rule 404(b). 192 F.3d at 287-288. However,

in United States v. Scott, this Court explained that that reasoning would not extend

to the substance of the contact. 677 F.3d at 83. Here, too, if Agent Krol’s

testimony was relevant to the issue of identity, the trial court should have limited to

identification and not the circumstances of the stop and the substance of Mr.

Ortiz’s statements.

Nor was the evidence relevant to the “modus operandi” of the conspiracy

charged in the indictment. The evidence here showed that Garcia’s supplier used a

cell phone registered to a third party to arrange to deliver heroin secreted in a car

battery case to a buyer in a mall parking lot. The 2009 events involved a traffic

34

stop which led to discover of currency in a suitcase which may be related to a

narcotics transaction.

Under Rule 404(b), evidence may be offered to show identity which reveals

a “distinctive” pattern which might link the crimes. While the similarities between

the offenses need not be identical, they must be “sufficiently idiosyncratic to permit

a fair inference of a pattern's existence.” United States v. Sliker, 751 F.2d 477, 487

(2d Cir. 1984); United States v. Carlton, 534 F.3d 97, 102 (2d Cir. 2008), United

States v. Danzey, 594 F.2d 905, 911 (2d Cir. 1979). For example, in United States

v. Sappe, 898 F.2d 878, 880 (2d Cir. 1990), the evidence showed that the defendant

utilized a distinctive method for robbing banks, in which he hid a gun in a

newspaper and placed the paper on the counter in such a way that the teller could

see the gun, which the investigating officer testified that he was not aware that

anyone else using, 898 F.2d at 880.

In the instant case, the events of 2009 hardly revealed a distinctive pattern.

Driving a car borrowed from another person to deliver contraband in a container is

in no way unique. In fact, since Agent Krol himself testified that he had

participated in “roughly 50 to 75, if not more, such “money pickups” during his

time at the DEA (A221), it is clearly not an unusual for people carrying money to

drive cars. In addition, as established in cross-examination, the money was not

hidden in any way other than that it was in a suitcase (A 228-229). As the trial

35

judge recognized “A suitcase is an object intended for the carrying and

transportation of all kinds of objects so putting something in a suitcase is not in an

extreme act of concealment” (A47) in contrast to a car battery case.

The trial judge, herself, recognized that there had to be “great deal of

identity between the MO in one transaction and another transaction to make the

identity linkage” (A38). Initially, the trial judge was ambivalent about whether or

not to admit the evidence (A48-50), but she ultimately admitted this evidence on

that ground without further explanation.

2. The Challenged Evidence Was Inadmissible On the Issues of Knowledge and Intent

For uncharged crime evidence to be probative of knowledge and intent, "the

government must identify a similarity or connection between the two acts." United

States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002); see United States v. Edwards,

342 F.3d 168, 177 (2d Cir. 2003); United States v. Paulino, 445 F.3d at 223.

As this Court has long held evidence of another act should not be admitted

to show knowledge unless the other act is "sufficiently similar to the conduct at

issue to permit the jury reasonably to draw from that act the knowledge inference

advocated by the proponent of the evidence." United States v. Peterson, 808 F.2d

969, 974 (2d Cir. 1987); United States v. Gordon, 987 F.2d 902, 908 (2d Cir.

1993). While the trial court need not find complete identity, United States v.

Carlton, 534 F.3d 97, 102 (2d Cir. 2008), there must be a close parallel between

36

the crime charged and the act shown, United States v. Corey, 566 F.2d 429, 431

(2d Cir. 1977). This was not true in this case.

In the instant case, there was substantial disparity between the crime charged

and the events of 2009. In 2009, the evidence showed that Mr. Ortiz participated

in a money drop, while in 2011 the supplier was delivering heroin. In 2009, the

money was “not hidden” but held in a suitcase, while in 2011 the heroin was

secreted in a car battery case. In 2009, Mr. Ortiz was driving from one location to

another without any indication of subterfuge while in 2011 the supplier and Garcia

met in a mall parking lot at night, used code words and untraceable cell phones.

The similarities that did exist, i.e., both Mr. Ortiz and the supplier drove vehicles

registered to Mr. Vasquez, are insufficient for the court to find a close parallel.

C. The Probative Value of the 2009 Events Was Substantially Outweighed by the Risk of Unfair Prejudice and Misleading the Jury

Finding that the proffered evidence may be probative does not end the

analysis; a trial court must also determine whether the probative value outweighed

the risk of unfair prejudice and misleading the jury. United States v. Curley, 639

F.3d at 57. The lower court failed to make that determination in this case.

FRE Rule 403 provides that:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

37

In Old Chief v. United States, 519 U.S. 172, 180 (1997), the Supreme Court

stated that "unfair prejudice" in criminal context to refer to "the capacity of some

concededly relevant evidence to lure the fact finder into declaring guilt on a ground

different from proof specific to the offense charged". See United States v. Paulino,

445 F.3d at 223. This is precisely what happened here.

The evidence of the 2009 events suggested to the jury that Mr. Ortiz was

engaged in the business of drug dealing and had finally been caught.

The prosecutor emphasized the propensity for Mr. Ortiz to engage in heroin

trafficking in her summation. The prosecutor posed the rhetorical question “What

else shows that Ortiz knew that the battery was full of heroin?” and responded:

The fact that in 2009, Ortiz was stopped by the DEA while he was delivering $100,000 in what Ortiz admitted was probably drug proceeds. In 2009 Ortiz knew that the money was not legitimate. It was drug money. In 2011, Ortiz knew that the battery was not a real battery. It was a container of heroin.

(A312).

The trial court failed to properly balance the probative value of the

evidence against this risk of unfair prejudice and misleading the jury. While the

district court is not required to mechanically recite the Rule 403 formula as a

prerequisite to admission, the record must reveal that the trial court performed the

balancing test “in a useful way.” United States v. Gilan, 967 F.2d at 782. In the

instant case, the record is devoid of any balancing of the risk of unfair prejudice.

38

The trial court limited her analysis to the relevancy of the evidence and not

whether its admission violated FRE 403.

D. Admitting Evidence of the 2009 Events Was Not Harmless

In United States v. Scott, 677 F.3d at 85, this Court said that in determining

whether an evidentiary error was harmless, the Court considers "(1) the overall

strength of the prosecution's case; (2) the prosecutor's conduct with respect to the

improperly admitted evidence; (3) the importance of the wrongly admitted

testimony; and (4) whether such evidence was cumulative of other properly

admitted evidence" citing United States v. Kaplan, 490 F.3d 110, 123 (2d Cir.

2007). The Court has stated that the strength of the prosecution's case "is probably

the single most critical factor," United States v. Lombardozzi, 491 F.3d at 76

(internal quotation marks omitted), are sufficient to support a finding that the error

in admitting the testimony was not harmless. In United States v. Jean-Baptiste,

166 F.3d 102, 108 (2d Cir. 1999), this Court said that “An error in the admission of

evidence may be deemed harmless only if it is highly probable that the error did

not contribute to the verdict." (internal quotation marks omitted). See United States

v. Scott, 677 F.3d at 85.

In the instant case, the government’s case was hardly overwhelming. The

surveillance officers were unable to identify the supplier who delivered the heroin

to Garcia. Garcia had identified another individual as the supplier for more than

39

four months and then selected two photographs, including one of Mr. Ortiz, as the

supplier. The phone used for the calls between Garcia and the supplier was not

recovered. The analysis of the calls made from the phone which Garcia used to

contact supplier and Mr. Ortiz’s phone was not conclusive.

Left with this ambivalent evidence, the prosecutor relied on the

identification of Mr. Ortiz’s voice, which we address in the next section, and the

evidence of the events of 2009.

The prosecutor highlighted this evidence by calling a witness whose

testimony was limited to these events and using it in her summation to answer her

rhetorical question: “What else shows that Ortiz knew that the battery was full of

heroin?” (A312).

Finally, this evidence was not cumulative of other evidence.

Given the importance of this evidence to the government’s case, its

admission over the objection of the defense was clearly not harmless error.

40

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE INTERPRETER TO TESTIFY BASED ON HER TRAINING AND EXPERIENCE THAT MR. ORTIZ WAS THE SPEAKER IN THE RECORDED CONVERSATIONS

The trial court erred by permitting the interpreter to identify Mr. Ortiz as the

voice of the “supplier” on the intercepted recordings based on her training and

experience. The government asked to elicit this testimony as “lay opinion” prior to

trial which was approved by the lower court, but then qualified the interpreter as an

expert at trial. Conflating lay and opinion testimony violated Mr. Ortiz’s right to a

fair trial.

Prior to trial, the district judge approved the government’s application to

elicit testimony from Elizabeth Caruso, the interpreter who prepared the transcripts

of the recorded telephone conversations for the government, to identify Mr. Ortiz

as the voice of the supplier based on her own observations. The application

specifically sought to elicit lay opinion testimony. The trial judge said: “With

respect to the lay opinion testimony as described, I also want to put on the record a

more recent Second Circuit case than those cited by the government, United States

v. Rommy, 506 F.3d 108, 137 (2d Cir. 2007)” (A17). However, when the witness,

Ms. Caruso, testified at trial, the prosecutor laid a foundation for her testimony

based on her knowledge, skill, experience, training, and education as a “Spanish-

English interpreter and translator” (A184). After laying this foundation, the

41

prosecutor asked the witness to compare the voices heard on the recordings made

pursuant to the wiretap order between Garcia and the “supplier” to the voice

exemplar made by Mr. Ortiz and the recording of the ruse call to 646-417-3871

(A196).

Then the prosecutor asked Ms. Caruso to give her opinion based on her

“experience:”

Q. Based upon your experience with the Spanish language, do you have an opinion regarding the voice identified as the supplier in the calls in Government Exhibit 100, the voice identified as UM in the calls on Government Exhibit 116 and the voice exemplar given by the defendant in Government Exhibit 110? A. Yes, I do. Q. And what is that opinion? A. It is the same voice.

(A196).

After eliciting that testimony, the prosecutor asked the witness to describe

the “pitch” of the voice of the “supplier” and compare it to that of Mr. Ortiz from

the exemplars (A197). At later point, the prosecutor asked the witness to discuss

the “tone” of the voices (A207-208). The prosecutor also asked the witness to

discuss the differences in pronunciation among Spanish speakers from various

areas. For example:

42

Q. I'm going to play another clip for you, this time from Government Exhibit 102-T, which is again a transcript of one of the wiretap phone calls, specifically at page 3, line 6 of 102-T. (Audio recording played) Q. Can you just describe what we're hearing there. A. Caribbean Spanish speakers very often don't pronounce the final "S" on words. They're aspirated. So here we're hearing, instead of "vamos," "vamos a ver," we're hearing "vamo," "vamo a ver," no "S" at the end of the "vamos." Q. What does that phrase mean, if you can just tell us? A. "Let's see," "let's see." Q. And what is sort of the traditional way of pronouncing that phrase? A. It's really according to the region you're from. So a standard pronunciation would be to pronounce the final "S" on "vamos" as "vamos." Caribbean speakers of Spanish, as is this person, would pronounce it "vamo." It's an aspirated "S" at the end. You don't hear it.

(A208-209). The prosecutor then asked the witness:

Q. Now, who is speaking in this recording? A. The defendant. Q. And what phenomenon are you observing in this pronunciation? A. An aspirated "S" at the end of nouns. Again, it's a regional way of speaking Spanish. The final "S" is not heard. It's aspirated.

(A210-211).

43

Again this is not testimony based on the witness’ own perception but on her

training and experience.

The prosecutor highlighted Ms. Caruso’s expertise in her summation:

Elizabeth Caruso, a court certified interpreter in Spanish, listened to all of the recordings, and she concluded that it was the same person who was speaking on all three kinds of recordings, in other words, that it was Ortiz speaking on all of the recordings -- meaning that it was Ortiz speaking to Garcia on the wire calls setting up the drug deals.

Now, Ms. Caruso is very experienced in listening to Spanish

language speakers, which is why we presented her testimony to you. Her job involves listening to and transcribing audio recordings that are in Spanish. Often, a single recording will have many different Spanish speakers. Often Ms. Caruso will have to recognize the same speaker on multiple recordings. Being able to identify and compare voices is a critical part of her job.

(A310-11)(emphasis added).

A. Standard of Review

This Court reviews a district court's evidentiary rulings for abuse of

discretion and its application of constitutional standards de novo. United States v.

Tropeano, 252 F.3d 653, 657 (2d Cir. 2001) citing United States v. Moskowitz, 215

F.3d 265, 268 (2d Cir. 2000) (per curiam). This Court will overturn evidentiary

rulings only where arbitrary or irrational. United States v. Han, 230 F.3d 560, 564

(2d Cir. 2000); See United States v. Lumpkin, 192 F.3d at 287.

This Court will order a new trial because of an erroneous evidentiary ruling

unless the error was “harmless." United States v. Abreu, 342 F.3d at 190. The

44

Court explained that "[W]e will deem an evidentiary error harmless if we can

conclude that the proof at issue was unimportant in relation to everything else the

jury considered on the issue in question, as revealed in the record." United States v.

Paulino, 445 F.3d at 219.

B. The District Court Erred By Permitting the Government to Elicit Expert Opinion Testimony to Identify Mr. Ortiz as the Speaker on the Recorded Conversations

The government improperly qualified the interpreter as an expert and had

her identify Mr. Ortiz as the voice of the supplier on the recorded conversations

with Garcia and on the recording of the ruse call. The district court allowed the

prosecutor to exceed the offer of this testimony as lay opinion in violation of the

Federal Rules of Evidence and Criminal Procedure.

Rule 901(b)(5) of the Federal Rules of Evidence provides that:

An 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.

The Advisory Committee explained:

[s]ince aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification. . . .

Fed. R. Evid. 901 Notes of Advisory Committee on Rules, Example (5). See

United States v. Rommy, 506 F.3d at 138; United States v. Tropeano, 252 F.3d at

661; United States v. Albergo, 539 F.2d 860, 864 (2d Cir. 1976).

45

Fed. R. Evid. Rule 701 governs lay opinion testimony – the type of

testimony envisioned by Rule 901(b)(5). Rule 701 provides that:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. In contrast, Rule 702 governs testimony which is based on specialized

knowledge, such as training and experience. Rule 702 provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

In the instant case, at the request of the government, the trial judge without

objection from the defense permitted the government to allow Ms. Caruso to give

her opinion as a lay witness (A196, 216). However, the government instead had the

witness testify as an expert. The government asked the witness to testify based on

her training and experience, notwithstanding Rule 701(c) directives that law

opinion not be “based on scientific, technical, or other specialized knowledge”

46

which would be expert testimony governed by Rule 702 requiring discovery under

Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure.

As a result, since Ms. Caruso was “not testifying as an expert,” Rule 701

limited her testimony to opinions which were “not based on scientific, technical, or

other specialized knowledge” (Rule 701(c)). Yet this was precisely the testimony

adduced by the prosecutor.

This Court dealt with a similar issue in United States v. Cambindo Valencia,

609 F.2d 603, 640 (2d Cir. 1979). In that case, this Court found that it was a “close

case” when the trial judge allowed the interpreter to identify the defendant’s voice

because “one can assume she had specialized knowledge of Spanish voices and

could ‘hear’ differences in speech patterns not noticed by the non-Hispanic jury”

609 F.2d at 640. In that case, the Court did not find any abuse of discretion,

however, in Cambindo Valencia, the government did not offer elaborate “expert”

testimony as it did in this case. The Cambino Valencia Court also noted that the

trial judge gave an appropriate charge that the jury was the ultimate judge of the

testimony's worth. Id. See also, United States v. Ulerio, 859 F.2d 1144, 1146 (2d

Cir. 1988) (approving jury instructions relating to of the credibility of the agent

who identified the voices of defendants on recorded conversations). But see,

United States v. Sliker, 751 F.2d at 500 (holding that it was not an abuse of

47

discretion for the trial court to fail to instruct the jury that it must specifically

decide the issue of authentication without being requested to do so).

In the instant case, the qualification of the expert was not a passing reference

to her role as an interpreter. The government elicited extensive testimony

regarding Ms. Caruso’s expert analysis of the pitch and tone of the exemplars she

compared, as well as the use of regional words. Moreover, the trial judge did not

address how the jury was to evaluate Ms. Caruso’s testimony in the charge. These

errors combined to undermine the jury’s fact finding role on one of the more

crucial issues of the trial, namely was Mr. Ortiz the speaker in Garcia’s recorded

conversations with the supplier.

48

POINT III

THE TRIAL COURT ERRED BY CHARGING THE JURY TO CONTINUE ITS DELIBERATIONS AFTER IT REPORTED SEVERAL TIMES THAT

IS WAS DEADLOCKED AND REVEALED THAT THERE WAS A SINGLE HOLDOUT

The district court undermined the role of the jury by instructing them to

continue deliberations after being advised on several occasions that the jury was

deadlocked. The trial judge’s last instruction to the jury before the verdict was

returned was improper because the jury had revealed that there was a single hold

out, thereby putting undue pressure on the holdout to agree with the remainder of

the jury to reach an unanimous verdict. Since this had been a very brief trial, the

court’s error requires reversal.

A. The Standard of Review

This Court reviews Allen7 charges on an abuse of discretion standard.

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).

7 Allen v. United States, 164 U.S. 492, 501-02 (1896).

49

B. The Trial Court’s Instructions Undermined the Resolve of the Sole Hold-Out to Maintain His or Her Conscientiously Held Belief that the Government Had Not Proven Its Case Beyond a Reasonable Doubt The Court has long held that “The propriety of an 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 at 517, citing United States v. Green, 523 F.2d 229, 236 (2d

Cir. 1975). See Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006) (holding Allen

charge generally requires cautionary language reminding jurors not to abandon

their own founded beliefs when jurors are instructed to consider the views of other

jurors). In Smalls v. Batista, 191 F.3d 272, 280 (2d Cir. 1999), this Court said

that the need for adequate cautionary language is “highlighted” where, as here, the

jury was divided eleven to one. This Court said that in such a case the minority

juror could be left “with the belief that he or she had no other choice but to

convince or surrender.” Id. While the trial court here gave a minimal nod to the

idea that “no one should give up a conscientiously held belief” in the context of

this case, that reference was inadequate. The Batista court stated that a charge

could be coercive even if it had included some cautionary language. 191 F.3d at

280.

Instructing jurors not to surrender their own beliefs becomes even more

critical in cases such as this, in which there is a single holdout. See United States v.

50

Mejia, 356 F.3d 470, 472 (2d Cir. 2004). While this court has held that an Allen

charge may not be coercive in such circumstances, it has done so because “The

judge's warning that 'under no circumstances must any juror yield his conscientious

judgment' makes the use of the Allen charge proper and not coercive” United

States v. Meyers, 410 F.2d 693, 697 (2d Cir. 1969) citing United States v. Kenner,

354 F.2d 780 (2d Cir. 1965).

Courts have held that “The speed with which a jury returns a unanimous

verdict after receiving an Allen charge is considered evidence of possible coercion

of the minority to go along with the majority.” United States v. Nwaneri, 1996 U.S.

App. LEXIS 566 (4th Cir. Md. Jan. 17, 1996) citing United States v. Rogers, 289

F.2d 433, 437 (4th Cir. 1961).

The jury sent message after message to the Court describing how it was at an

impasse. The notes described how the sole hold-out agreed to spend a night

“sleeping” on her/his position and then deliberated another full day before

reporting that there was still an impasse. Even though the jury deliberations

exceeded the length of the trial, the trial judge denied the defense motion to grant a

mistrial. The trial judge’s final instruction made it clear to the lone hold-out that

the trial court would keep this jury deliberating indefinitely until the hold-out

agreed with the majority to convict Mr. Ortiz. The jury was sent home to resume

its deliberations the following week.

51

In the instant case, the jury upon resuming deliberations on Monday

morning, immediately moved on to the issue of the weight of the drugs, clearly

indicating that the sole hold-out had acquiesced to join the majority. Once the

judge answered their remaining question about how to consider the stipulation, the

jury returned its verdict. Clearly, the lone hold-out had been coerced into joining

the majority.

52

CONCLUSION

For the reasons stated above, the judgment and sentence in this case should

be vacated.

Dated: March 5, 2013 Garden City, New York

Respectfully submitted,

_\s\____________________ PETER J. TOMAO, ESQ. (PT6409)

Attorney for Defendant-Appellant Miguel Ortiz 226 Seventh Street, Suite 302 Garden City, New York 11530 (516) 877-7015

5 We acknowledge the assistance of Angelo Macaluso, a third year student at Hofstra Law School, in the preparation of this brief.

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that the foregoing brief complies

with the requirements of Rule 32(a)(7)(B) of the Federal Rules of Appellate

Procedure. The typeface used was 14 Point Times New Roman. According

to the word processing system used to prepare this brief, the number of

words in the brief is 11,449.

Dated: Garden City, New York March 5, 2013

Respectfully submitted, _\s\___________________ Peter J. Tomao, Esq. Attorney for Defendant-

Appellant Miguel Ortiz 226 Seventh Street, Suite 302 Garden City, New York 11530 (516) 877-7015

SPECIAL APPENDIX

Table of Contents

Page

i

Judgment of the United States District Court, Southern District of New York, dated August 9, 2012 ................................................... SPA1

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 1 of 6

~AO 245B (Rev. 06105) Judgment in a Criminal Case Sheet I

UNITED STATES DISTRICT COURT

SOUTHERN District of NEW YORK

UNITED STATES OF AMERICA

V. MIGUEL ORTIZ

THE DEFENDANT:

pleaded guilty to count(s)

o pleaded nolo contendere to count(s) which was accepted by the court.

X was found guilty on count(s) after a plea of not gUilty.

The defendant is adjudicated guilty of these offenses:

Nature of Offense

JUDGMENT IN A CRIMINAL CASE

Case Number:

USMNumber:

Joseph A. Lobosco Defendant's Attorney

1:11CR00875-01(DLC)

64251-054

AUSA: Elisha J. Kobre

Title & Section 21 USC § 846 Conspiracy to Distribute and Possess with Intent to

Offense Ended 0110112011

Count 1

Distribute Heroin

The defendant is sentenced as provided in pages 2 through _-...:::6 __ of tbis judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

The defendant has been found not guilty on count(s)

DCount(s) o Underlying

X Motion(s)

--------------------------------------------26 and 28

o is are dismissed on the motion of the United States.

o is o are dismissed on the motion of the United States.

is x are denied as moot.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, tfle defendant must notify the court and United States attorney of material changes III economic circumstances.

August 9, 2012

··'USDC

1\ DOCUMENT \ ELECTRONICAL.L'.

. \ ... " ·D(A_

Name and Title 0 Judge

~jgAr-/~ Date

Case: 12-3372 Document: 2 Page: 1 08/24/2012 703371 6SPA1

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 2 of 6AO 245B (Rev. 06/05) Judgment in Criminal Case Sheet 2 - Imprisonment

DEFENDANT: MIGUEL ORTIZ CASE NUMBER: 1: 11 CR0087 5-01 (D LC)

Judgmcnt- Page _....:2=---_ of

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 151 months.

D The court makes the following recommendations to the Bureau of Prisons:

X The defendant is remanded to the custody of the United States Marshal.

o The defendant shall surrender to the United States Marshal for this district:

o at a.m. o p.m. on

as notified by the United States Marshal.

o The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

o before 2 p.m. on

as notified by the United States Marshal.

o as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

a=---_______________ , with a certified copy of this judgment.

UNITED STATES MARSHAL

6

By _____ ~~~~~~~~~~~~-------DEPUTY UNITED STATES MARSHAL

Case: 12-3372 Document: 2 Page: 2 08/24/2012 703371 6SPA2

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 3 of 6AD 2458 (Rev. 06105) Judgment in a Criminal Case Sheet 3 Supervised Release

Judgment-Page 3 of 6

DEFENDANT: MIGUEL ORTIZ 1:11CR00875-01(DLC) CASE NUMBER:

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of : 5 years.

The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

o The above drug testing condition is suspended, based on the court's determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)

X The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if

X The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)

o The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or student, as directed by the probation officer. (Check, if applicable.)

o The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)

If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.

The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.

1)

2)

3)

4)

5)

6)

7)

8)

9)

10)

11)

12)

13)

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district without the permission of the court or probation officer;

the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;

the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions ofthe probation officer;

the defendant shall support his or her dependents and meet other family responsibilities;

the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer anv controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; .

the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;

the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to (10 so by the probation officer; . .

the defcndant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;

the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;

the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; and

as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics and shilll J?ernnt the probation officer to make such notifications and to confirm the defendant's compliance with such notification reqUIrement.

Case: 12-3372 Document: 2 Page: 3 08/24/2012 703371 6SPA3

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 4 of 6AO 245B (Rev. 06/05) Judgment in a Criminal Case Sheet JA - Supervised Release

DEFENDANT: CASE NllMBER:

MIGllEL ORTIZ 1:11CR00875-01(DLC)

Judgment-Page

ADDITIONAL SUPERVISED RELEASE TERMS

_.;;:..4_ of 6

If deemed necessary by the Probation Department, the defendant must participate in a program approved by the Probation Department for substance abuse, which program may include testing to determine whether the defendant has been using drugs. The offender will be required to contribute to the costs of services rendered (copayment) in an amount to be determined by tbe probation officer, based on ability to payor availability of third-party payment.

The defendant shall submit his person, residence, place of business, vehicle, or any other premises under his control to a searcb on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in reasonable manner. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.

The defendant must seek and maintain full-time employment.

The defendant shall be supervised by the district of residence.

Case: 12-3372 Document: 2 Page: 4 08/24/2012 703371 6SPA4

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 5 of 6AO 245B (Rev. 06/05) Judgment in a Criminal Case

Sheet 5 Criminal Monetary Penalties

DEFENDANT: CASE NUMBER:

MIGUEL ORTIZ 1:11CR00875-01(DLC)

Judgment - Page _-,,5 __

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution TOTALS S 100.00 SO S 0

of 6

o The determination of restitution is deferred after such determination.

____ . An Amended Judgment in a Criminal Case (AO 24SC) will be

o The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximatelv proportioned pavment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.c. §- 3664(i), all nonfederal victims must be paid before the United States IS paid.

Name of Payee Total Loss* Restitution Ordered Priority or Percentage

TOTALS $ _____ --=$.:;.:0.;;;.;.00::-. $ ________ ~$O~ • .:;.:OO~

o Restitution amount ordered pursuant to plea agreement" _________ _

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(t). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 lJ.S.c. § 3612(g).

o The eourt determined that the defendant does not have the ability to pay interest and it is ordered that:

D the interest requirement is waived for o fine 0 restitution.

o the interest requirement for o fine D restitution is modified as follows:

* Findings for the total amount oflosses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before Apnl 23, 1996.

Case: 12-3372 Document: 2 Page: 5 08/24/2012 703371 6SPA5

Case 1:11-cr-00875-DLC Document 37 Filed 08/13/12 Page 6 of 6AO 2458 (Rev. 06/05) Judgment in a Criminal Case

Sheet 6 - Schedule of Payments

DEFENDANT: MIGUEL ORTIZ CASE NUMBER: 1 :l1CR00875-01(DLC)

SCHEDULE OF PAYMENTS

Judgment- Page 6

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows:

A X Lump sum payment of $-C!;.10:::.;O;;.:.O::..;O~ __ _ due immediately, balance due

D not later than __________ _ , or in accordance D C, D D, D E, or F below; or

B D Payment to begin immediately (may be combined DC, D D, or D F below); or

of

C D Payment in equal (e.g., weekly, monthly, quarterly) installments of over a period of (e.g., months or years), to (e.g., 30 or 60 days) after the date of this judgment; or

D D Payment in equal (e.g., weekly, monthly, quarterly) installments of over a period of

6

(e.g., months or years), to (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or

E D Payment during the term of supervised release will commence (e.g., 30 or 60 days) after release from imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time;

F Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonmentl payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties} except those payments mane through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the c erk oT the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

D Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several and corresponding payee, if appropriate.

D The defendant shall pay the cost of prosecution.

D The defendant shall pay the following court cost(s):

D The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

Case: 12-3372 Document: 2 Page: 6 08/24/2012 703371 6SPA6