United States v. Ortiz-Arrigoitia

996 F.2d 436, 1993 WL 191732
CourtCourt of Appeals for the First Circuit
DecidedJune 21, 1993
Docket91-1290, 91-1365 and 91-1366
StatusPublished
Cited by62 cases

This text of 996 F.2d 436 (United States v. Ortiz-Arrigoitia) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ortiz-Arrigoitia, 996 F.2d 436, 1993 WL 191732 (1st Cir. 1993).

Opinions

SKINNER, District Judge.

These appeals are from convictions on assorted charges of conspiracy, importing and possessing large quantities of marijuana and cocaine, aiding and abetting therein and, in the case of Medina Vazquez, possession of a firearm in connection with the drug charges. These defendants were tried together with two others. This trial was part of the serial prosecution of some 56 members of a large scale drug importation and distribution organization known as “La Nena.” Of their numerous assertions of error, the most serious is the denial of their motions for a mistrial after discovery by the court that four of the jurors had arrived at a conclusion concerning guilt prior to the presentation of the defendants’ evidence. We reserve our discussion of this difficult issue until last.

1. Sufficiency of evidence.

All defendants challenge the sufficiency of the evidence against them because the government’s case depended on the testimony of Geraldo Portalatin Toledo (“Portalatin”), a leading member of the “La Nena” drug organization. Defendants argue that Portalatin’s testimony was so unreliable and so sketchy as to them, that it was insufficient as a matter of law. Portalatin was cross-examined concerning his deals with the government. The judge gave complete and eor-[439]*439rect instructions detailing the special care the jury should take in assessing the testimony of an accomplice. Under these circumstances, an accomplice is a qualified witness and the credibility of the witness is for the jury. United States v. Restrepo-Contreras, 942 F.2d 96, 99 (1st Cir.1991) (it is the province of the jury to assess the credibility of a witness), cert. denied, — U.S. -, 112 S.Ct. 955, 117 L.Ed.2d 123 (1992). Portalatin testified that Ortiz Arrigoitia and Medina Vazquez helped unload various shipments of marijuana and cocaine and Ortiz Cameron participated in the unloading and distribution of a load of cocaine at a “clandestine airfield” at La Furnia Farm in Barceloneta, Puerto Rico. Portalatin’s evidence, if believed, when considered with the other evidence in the case was sufficient to support conviction by the jury, notwithstanding Portalatin’s unsavory history and the contrary evidence presented by the defendants.

2. Improper admission of testimony.

Ortiz Cameron further asserts error in the admission of evidence. Portalatin testified that the driver of a Chevrolet “power wagon” (apparently a four-wheel-drive truck) which was used to remove the cargo of cocaine after an incoming plane crashed at Furnia was “Hiram,” whom he identified as Luis Hiram Ortiz Cameron, the defendant. Portalatin had been in the plane which crashed, had bumped his head, had pulled the pilot out of the plane and had described himself as “shaken” by the experience. Ortiz Cameron argues that Portalatin’s condition made him so unreliable that his testimony should not have been allowed. There is no evidence, however, that he was in any way incapacitated. He pulled the pilot from the plane and helped salvage the cargo. He then spent two hours beside “Hiram” as the latter drove the “power wagon” to the destination of the contraband. Under such circumstances, his credibility was for the jury.

During the cross-examination of Por-talatin, the defense attorney discovered for the first time that Portalatin, during his debriefing by government agents, was shown a picture of Ortiz Cameron. He immediately identified the picture, saying “That’s Hiram.” It does not appear that any suggestive comment was made. This picture was not part of a spread, however, and it was shown to Portalatin in the course of the discussion of his participation in the various drug transactions.

Defense counsel moved that Portalatin’s testimony concerning Ortiz Cameron be stricken as unacceptably tainted. Among other reasons, he asserted that he had not been shown the photograph in question, and that the evidence packet furnished by the prosecution contained copies of photographs which were simply blotches of white on black. The prosecutor replied that all defendants had been invited to the office of the United States Attorney to view all of the government’s hundreds of exhibits, but that none of them had taken advantage of the opportunity. The trial judge made no explicit finding, but apparently accepted the prosecution’s explanation. He offered to suspend the trial, however, to provide defense counsel an opportunity to examine the photo and to develop any evidence of improper suggestion. Counsel declined and proceeded with the cross-examination of Portalatin. Not until eight days later, at the close of all the evidence, did counsel move for a voir dire of Portalatin to explore any possible taint. This untimely motion was denied.

The reliability of identification testimony allegedly tainted by reason of an im-permissibly suggestive photograph should be resolved after consideration of all the circumstances. Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977); United States v. Bouthot, 878 F.2d 1506, 1514 (1st Cir.1989). In this case, it would appear that Portalatin had spent over two hours in the close company of “Hiram,” albeit at night and under difficult circumstances. He knew Hiram’s first name before the photograph was identified.

The district judge’s offer to suspend the trial to permit further investigation was refused. The defendant was doubtless entitled to a voir dire examination of Portalatin before proceeding with the cross-examination, but certainly not eight days later. There was no error in the denial of his untimely motion. Similarly, we find no error in the [440]*440trial judge’s decision to permit Portalatin’s identification to stand.

Ortiz Cameron also alleges error in the admission of testimony concerning his disappearance from his normal whereabouts immediately after the “La Furnia” episode and concerning his wealth, which the government asserted could only be explained by his participation in illicit drug deals over a period of time. The defendant had ample opportunity to rebut such testimony. It is well established that unexplained flight or a defendant’s attempt to conceal his identity may be relevant evidence of guilt. See, e.g., United States v. Grandmont, 680 F.2d 867, 869 (1st Cir.1982). Similarly, evidence of the acquisition of otherwise unexplained wealth may corroborate other evidence of participation in lucrative crimes. United States v. Ariza-Ibarra, 605 F.2d 1216, 1224-25 (1st Cir.1979), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981).

3. Severance.

All three defendants moved before trial for a severance on the ground that there would be prejudicial “spill-over” of evidence from one to the other. Such a motion is addressed to the sound discretion of the trial judge. United States v. Natanel, 938 F.2d 302, 308 (1st Gir.1991), cert. denied, — U.S. -, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992); United States v. Boylan,

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Bluebook (online)
996 F.2d 436, 1993 WL 191732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ortiz-arrigoitia-ca1-1993.