12-3372 To Be Argued By:

Peter J. Tomao

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

REPLY BRIEF FOR DEFNDANT- APPELLANT MIGUEL ORTIZ

PETER J. TOMAO, ESQ.

Attorney for Defendant-Appellant MIGUEL ORTIZ

226 Seventh Street, Suite 302 Garden City, NY 11530

516-877-7015

i

TABLE OF CONTENTS Page TABLE OF AUTHORITIES

ii

PRELIMINARY STATEMENT

1

ARGUMENT

3

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

3

A. The Car Stop Evidence was Improperly Admitted on the Issue of Knowledge and Intent

4

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

11

1. The Car Stop Evidence Was Irrelevant to Show That Mr. Ortiz Was Present in the Metro Mall Parking Lot

11

2. The Car Stop Evidence Was Irrelevant to Show Identity by Modus Operandi

11

C. The Trial Court Abused Its Discretion By Failing to Conduct a Conscientious Weighing of the Probative Value of the Car Stop Evidence Against the Risk of Unfair Prejudice Under FRE 403

15

D. Admitting Evidence Of the 2009 Car Stop Was Not Harmless

16

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

18

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

20

CONCLUSION 21

ii

TABLE OF AUTHORITIES

CASES

PAGE

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

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

15 United States v Mendiola, 707 F.3d 735 (7th Cir. 2013)

19 United States v Rigas, 490 F.3d 208 (2d Cir. 2007)

18 United States v Speed, 272 Fed. Appx. 88, 2008 WL 925283 Summary

Order (2d Cir. 2008)

14

United States v. Afjehei, 869 F.2d 670 (2d Cir. 1989)

8,10 United States v. Aminy, 15 F.3d 258 (2d Cir. 1994)

7,8,9 United States v. Arango-Correa, 851 F.2d 54 (2d Cir. 1988)

2 United States v. Camara, 485 Fed. Appx. 457, 2012 WL 2095668

Summary Order (2d Cir. 2012)

15

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

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

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

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

6 United States v. Fernandez, 829 F.2d 363 (2d Cir. 1987)

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

6 United States v. Garcia, 413 F.3d 201 (2d Cir 2005) 18,19 United States v. Gilan, 967 F2d 776 (2d Cir. 1992)

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

8,9,10 United States v. Gubelman, 571 F.2d 1252 (2d Cir. 1978)

13,14 United States v. Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999)

17 United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973)

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

16 United States v. Mills, 895 F.2d 897, 908 (2d Cir. 1990)

14 United States v. Nwaneri, 1996 U.S. App. LEXIS 566 unpublished

opinion (4th Cir. Md. Jan. 17, 1996)

20

iii

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

6, 16 United States v. Peterson, 808 F.2d 969 (2d Cir. 1987)

8,10 United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992)

8

United States v. Ramirez-Amaya, 812 F.2d 813 (2d Cir. 1987)

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

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

8,14 United States v. Scott, 677 F.3d 72 (2d Cir. 2012)

17 United States v. Sliker, 751 F.2d 477 (2d Cir. 1984)

12 United States v. Tice, 133 F.3d 908, 1998 U.S. App. LEXIS 1404

Summary Order (2d Cir. Jan. 27, 1998) 12, 13

FEDERAL RULES OF EVIDENCE

FRE 403

15 FRE 404(b) passim TREATISE

Weinstein's Federal Evidence

12,14

1

To be argued by: Peter J. Tomao, Esq.

12-3372

IN THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL ORTIZ,

Defendant-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 respectfully submits this brief in reply to the government’s

brief in opposition dated June 4, 2013 (“GBr”).1

The issues in this appeal are whether the district court erred by (1) admitting

1 “OBr” refers to Ortiz’s principal brief dated March 5, 2013. All other abbreviations are set forth in HBR 1 fn 1 and GBR 3 fn 1.

2

under FRE 404(b) evidence obtained during an unrelated stop more than eighteen

months prior to the drug delivery alleged in the Indictment, namely, that Mr. Ortiz

possessed $100,000 in cash and had stated that he had carried money on six

occasions which may have been the proceeds of drug transactions; (2) permitting

the interpreter to identify Mr. Ortiz as the speaker on the recorded telephone calls

based on her training and experience and (3) failing to discharge the jury and

instead giving the jury a second Allen charge which put undue pressure on the sole

hold out juror.

3

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

This is a case in which the trial judge abused her discretion by admitting

evidence of other unproved criminal activity. In the instant case, the trial judge

allowed the government to adduce testimony from a DEA agent that Mr. Ortiz was

stopped in 2009 carrying a suitcase containing $100,000 in cash 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 period of the crimes charged

in the instant case. The trial judge admitted this evidence, which the government

referred to as the “Car Stop,” on the issues of “identity” as well as “knowledge and

intent.”

As we argued in our main brief, the Car Stop evidence bore no relation to

the crimes charged in the indictment on trial. The Car Stop involved evidence that

Mr. Ortiz had carried money in 2009 while the indictment charged he supplied

heroin in 2011. The Car Stop evidence included the alleged statement that Mr.

Ortiz thought that the money “may have” bee then proceeds of narcotics sales and

that he may have transported the proceeds of narcotics sales on as many as six

4

prior occasions (A226). The only similarity between the two events is that both

involved a vehicle registered to Manny Vasquez, whom the government

acknowledges was NOT a participant in any illegal activity.

This evidence was even more pernicious because the agent who conducted

the 2009 interrogation testified that he had no current memory of the Car Stop and

had to testify using his report. This limited effective cross-examination of the

witness as to what Mr. Ortiz in fact said at that time.

In this context it is clear that Judge Cote abused her discretion by placing his

evidence before the jury and that the limiting instruction did not cure the unfair

prejudice2.

A.

The Car Stop Evidence Was Improperly Admitted on the Issue of Knowledge and Intent

The trial judge improperly admitted the Car Stop evidence on the issue of

knowledge and intent. The government argued that since Mr. Ortiz did not

concede that he knew what was in the battery in 2011, the evidence that he

delivered money in 2009 was properly admissible to show knowledge and intent.

2 Notably, the government does not argue that the limiting instruction cured any error. Nor is there any way that any instruction could have cured the suggestion that Mr. Ortiz must have made the delivery at the Metro Mall because the government alleged that he is an experienced drug dealer.

5

That argument is simply specious. The Car Stop evidence in no way assisted the

jury to determine what he knew in 2011.

The government’s purported four similarities between the two events (GBr.

21) does not stand up to careful analysis. First, the government argues erroneously

that Mr. Ortiz admitted that on six prior occasions he worked in the drug business

(GBr. 21). In fact, Mr. Ortiz stated that he did not know the source of the money he

had at the time of the Car Stop but that it was “probably derived from the sale of

drugs” (A226). Agent Krol testified that:

Q. Agent Krol, did you find the statements that Mr. Ortiz made, statements about the money? A. Yes. 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. And that's all that's noted here.

(A226). This is a far cry from admitting that he was in the drug business. The

government’s theory in this case was actual knowledge, not conscious avoidance.

The second so-called similarity between the two events cited by the

government is that he acted as a “deliveryman.” The government does not show

how this “similarity” has any bearing on the issue of “knowledge and intent.”

6

Likewise, the third “similarity,” that in both cases the vehicle was registered

to Mr. Vasquez, did not assist the jury on this issue. The government does not

allege that Mr. Vasquez was involved in narcotics trafficking and did not argue

that Mr. Ortiz registered either vehicle in Mr. Vasquez’s name to avoid detection.

Finally, the government argues that in both cases Mr. Ortiz concealed what

he was carrying in some way. The government’s own witness did not support this

conclusion. Agent Krol acknowledged on cross examination that money seized in

the Car Stop was “not hidden” but it was held in a suitcase (A 228-229). Judge

Cote agreed that the use of a suitcase to carry money was hardly subterfuge. She

said: “A suitcase is an object intended for the carrying and transportation of all

kinds of objects so putting something in a suitcase is not [] an extreme act of

concealment” (A47). It’s not as if $100,000 in cash could simply be folded and

placed in someone’s pocket. There is simply no similarity between carrying the

money in a suitcase and secreting heroin in a car battery case.

The caselaw cited by the government does not support its arguments. The

cases cited by the government and those cited in our main brief establish that the

government must show similarity between the crime charged and the other act

offered to show knowledge. 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 211, 223 (2d Cir. 2006).

7

In United States v. Arango-Correa, 851 F.2d 54 (2d Cir. 1988), cited at GBr.

22, the Court approved the admission of papers seized from the defendant’s

residence which showed he was familiar with similar narcotics transactions to

overcome the defense that the defendant was merely present at the delivery of the

narcotics and had no knowledge of the true nature of the shipment. Unlike the

instant case, the papers in Arango-Correa apparently reflected transactions similar

to those on trial. In the instant case, there is no similarity between the events.

Likewise, in United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir.

1987), also cited at GBr. 22, this Court approved admitting the evidence that the

defendant who was charged with attempt to import a large quantity of cocaine into

the United States had “previously sought to engage in precisely such activities” to

overcome his defense that he had had no intention of involving himself in unlawful

activities. Under that reasoning, if the instant case had charged Mr. Ortiz with

transporting narcotics proceeds, the Car Stop may have been relevant but it is not

relevant to the instant charges.

In United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994), also cited at

GBr. 22, this Court also held that where a defendant put his knowledge and intent

in issue, other-act evidence which tended to show those mental states may be

admissible. 15 F.3d at 260. However, the case did not provide carte blanche for

the admission of any other act evidence just because the defendant put knowledge

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and intent into issue. As the Aminy court made clear, the evidence must be

relevant as measured by the similarity between the other-act evidence and the

crime charged. The Court said:

Though evidence of other crimes or wrongs is "not admissible to prove the character of a person in order to show action in conformity therewith," Fed. R. Evid. 404(b), the Rule permits admission of such evidence for other purposes, such as to show knowledge or intent, see, e.g., Huddleston v. United States, 485 U.S. 681, 687-88, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992). Where, for example, the defendant does not deny that he was present during a narcotics transaction but simply denies wrongdoing, evidence of other arguably similar narcotics involvement may, in appropriate circumstances, be admitted to show knowledge or intent. See, e.g., United States v. Fernandez, 829 F.2d 363, 367 (2d Cir. 1987) (per curiam). In such circumstances, evidence of another act should not be admitted as proof of the defendant's knowledge or intent unless the other act is "sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge [or intent] inference advocated by the proponent of the evidence." United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987). "Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charged. There is no necessity for synonymy but there must be substantial relevancy . . . ." United States v. Kasouris, 474 F.2d 689, 692 (5th Cir. 1973) (emphasis in original). If the other-act evidence does not provide a reasonable basis for inferring knowledge or intent, its offer for that purpose should be rejected on grounds of relevance. See, e.g., United States v. Afjehei, 869 F.2d 670, 674 (2d Cir.1989). The decision to admit evidence pursuant to Rule 404(b) is reviewable only for abuse of discretion. See United States v. Gordon, 987 F.2d [902], 908 [(2d Cir. 1993)] ; United States v. Sappe, 898 F.2d 878, 880 (2d Cir. 1990).

United States v. Aminy, 15 F.3d at 260.

9

In Aminy, the trial court admitted into evidence a tinfoil packet of heroin

which was in the defendant’s pocket at the time he received an attaché case

containing a large quantity of heroin. The evidence in that trial also included

expert testimony that the foil wrapping of the packet was similar to that of

packages of small quantities of narcotics that are frequently given and received by

knowing drug dealers as samples. There is no similar relevancy in the instant case

as there might have been if the buyer in the Metro Mall had given the deliveryman

a suitcase.

The facts in the instant case was more similar to those in United States v.

Gordon, 987 F.2d 902 (2d Cir. 1993) which the Aminy court distinguished on the

facts. In Gordon, this Court held that the district court abused its discretion in

admitting evidence of that defendant's possession of a small quantity of narcotics

because there was insufficient similarity to meet the requirements of Rule 404(b).

In that case, there were disparities not only between the quantities of narcotics

involved, but types of the narcotics involved as well as the timing of the prior act

which had occurred some 16 months before the events at issue See 987 F.2d at

906-09, discussed at United States v. Aminy, 15 F.3d at 260.

The Court said in Gordon that:

The inquiry into the relevance of the evidence to the issue requires scrutiny of its probative value. Rule 404(b) does not authorize the admission of any and every sort of other-act evidence simply because a defendant proffers an innocent explanation for the charged conduct.

10

See, e.g., United States v. Corey, 566 F.2d 429, 431 (2d Cir. 1977). To the contrary, 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 at 908. This Court continued: “If the other-act

evidence does not provide a reasonable basis for inferring knowledge, its offer for

that purpose should be rejected on the grounds of relevance.” Id.

The disparities between the facts of the Car Stop and the delivery in the

Metro Mall parking lot are so great that the admission of the first to prove the

second is clearly an abuse of discretion. United States v. Afjehei, 869 F.2d at 674

(holding that it was an abuse of discretion for the trial court to admit other-act

evidence "if the other act or acts are not sufficiently similar to the conduct at

issue."); see United States v. Peterson, 808 F.2d at 974. In Afjehei, this Court

reversed a conviction in which evidence of previous trips was admitted to show

knowledge that the defendant knew the bag he was carrying contained narcotics.

The Court reasoned that the jury could not logically use the evidence of the prior

trips to show that the defendant knew the bag with which he was arrested

contained narcotics. Likewise, in this case, Mr. Ortiz’s alleged statement that he

carried money which may have been derived from narcotics trafficking in the past,

could not logically be used to show that he knew that the battery in the Metro Mall

parking lot contained heroin.

11

B.

The Challenged Evidence Was Irrelevant on the Issue of Identity The district court also abused her discretion by admitting evidence of the

Car Stop to show identity.

1. The Car Stop Evidence Was Irrelevant to Show That Mr. Ortiz Was Present in the Metro Mall Parking Lot. The government first argues that the Car Stop evidence was admissible on

the issue of “whether or not he was the person who delivered the heroin at the

Metro Mall” (GBr. at 23)3. The fact that Agent Krol recognized Mr. Ortiz as the

person whom he stopped carrying a suitcase containing cash in 2009 was not

relevant to show that Mr. Ortiz was present in the Metro Mall parking lot in 2011.

Moreover, even if the fact that Agent Krol recognized Mr. Ortiz was relevant,

which it was not, the district court erred by admitting the circumstances of the stop

on the issue of identity. Those circumstances showed propensity to commit crimes

which is barred under FRE 404(b), not identity.

2. The Car Stop Evidence Was Irrelevant to Show Identity by Modus Operandi

The government’s arguments that the Car Stop was admissible to identity based

on a distinctive pattern fail under both the caselaw and facts of this case. In order 3 The government says that we mistake the nature of the identity that it was not offered to show eyewitness identification but identity based on the “similarities between the Car Stop and the alleged crimes (GBr. 25). However, we addressed the modus operandi argument in our main brief at OBr. 34-35.

12

for other act evidence to be admitted to show identity under FRE 404(b), the

government must show a relationship between the crimes charged and the other

acts. It did not do so.

This Court has held that offenses 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).

One commentator notes:

Courts sometimes hold that, in order to be probative, the offense must be similar to the charged act in the sense that the essential physical elements of the two crimes are alike. The degree of similarity required, however, will depend on the theory under which the evidence is offered. In some cases, such as narcotics prosecutions, there seems to be less insistence on similarity.

Weinstein's Federal Evidence § 404.22(citations omitted).

This Court made clear that the government had to establish the similarity in

the first case cited by the government - United States v. Tice, 133 F.3d 908 (Table)

summary order reported at 1998 U.S. App. LEXIS 1404 (2d Cir. Jan. 27, 1998),

cited at GBr. 234. In Tice, this Court found that the trial court had not abused its

discretion by admitting evidence of the defendant's prior conviction for growing

marijuana in the same basement where plants were seized in the case on trial to

4 The government’s citation to this case does not appear to conform with Local Rule 32.1(c).

13

rebut his dispute that the plants were his. The Court said that “the fact that Tice

had previously been convicted for growing plants in the same location made it

more likely than not that it was he, rather than someone else, who had grown the

plants in this instance.” 1998 U.S. App. LEXIS 1404 at *3-4. There is no such

identity here. As we set forth in the prior case, the crime as charged, i.e., heroin

trafficking, was not similar to the other-act evidence of transporting money which

may have been the proceeds of narcotics trafficking, Even the circumstances of

the stop differed from the surveillance of the heroin delivery.

The Court also recognized that substantial similarity between the other-act

evidence and the crime charged was necessary to establish “identity” under Rule

404(b). In the other case cited by the government, United States v. Gubelman, 571

F.2d 1252, 1255 (2d Cir. 1978), the Court found that the trial court had not abused

its discretion in admitting similar act to rebut the defense that the government's two

main witnesses had picked out "the wrong guy" as the meat inspector who received

bribes in their plants. The similar act evidence was the testimony of two other

witnesses that specifically identified the defendant as a meat inspector who had

taken similar bribes in other plants during the same general time period. In a strong

dissent, Circuit Judge Mansfield argued that there must be some unique and

specific characteristic common to both the uncharged act and the alleged criminal

conduct, such as a similarity in the modus operandi, before the earlier act may be

14

admitted on the issue of identity. 571 F.2d at 1256. Indeed, the Gubelman majority

was skeptical of the use of similar act evidence for this purpose and said that “the

trial court would have better discharged its discretion by excluding such equivocal

testimony.” 571 F.2d at 1255.

This Court has upheld the use of similar act evidence in cases in which a

distinctive method was used to commit the crime charged in the indictment. See

United States v. Sappe, 898 F.2d at 880, cited at OBr 34 (the defendant hid a gun in

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

not see the gun and the investigating officer testified that he was not aware that

anyone else using the same means to conceal a weapon); United States v. Speed,

272 Fed. Appx. 88, 91-92 (Summary Order) (2d Cir. 2008) cited at GBr. 245

(defendant wore a ski mask, dark clothes and gloves and planned to steal the

victim’s car as a getaway); United States v. Mills, 895 F.2d 897, 908 (2d Cir.

1990)(In order to show that the defendant had made the counterfeit bills as charged

in the indictment, the government was entitled to show that the process used to

make the bills at issue was a unique one, that it had been encountered only once

before in the experience of the Secret Service, and that on that prior occasion the

perpetrator was the defendant). See also Weinstein's Federal Evidence § 404.22

5 The government’s citation to this case does not appear to conform with Local Rule 32.1(c).

15

(Courts may admit evidence of a crime that has the same unusual features as the

charged crime.)

However, in the instant case, where no such distinctive factors existed, the

evidence was improperly admitted.

C.

The Trial Court Abused Its Discretion By Failing to Conduct a Conscientious Weighing of the Probative Value of the Car Stop Evidence Against the Risk of

Unfair Prejudice Under FRE 403

Rather than carefully considering whether the probative value of the Car

Stop evidence outweighed the risk of unfair prejudice, the district court took the

improper shortcut advocated by the government here that, since the other-act

evidence was not more sensational than the crime charged, there was no need to

look any further (GBr. 27).

We recognize the troubling trend to limit a robust FRE 403 analysis to this

simple task. See, e.g., United States v. Camara, 485 Fed. Appx. 457(Summary

Order) (2d Cir. 2012), cited at GBr. 27. However, to do so emasculates the role of

FRE 403 and strips away this evidentiary counterweight to this Circuit’s

inclusionary approach to FRE 404(b).

This view of FRE 403 is inconsistent with the Supreme Court ruling in Old

Chief v. United States, 519 U.S. 172, 180 (1997), stated that "unfair prejudice" in

criminal context to refer to "the capacity of some concededly relevant evidence to

16

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 Court has held that the record must reveal that the trial court performed

the balancing test “in a useful way” United States v. Gilan, 967 F2d 776, 782 (2d

Cir. 1992).

In the instant case, rather than conducting the balancing test “in a useful

way,” the trial judge accepted the government’s position that since the Car Stop

evidence was not “inflammatory” it was not unfairly prejudicial (A39). This is not

enough. The judge should have considered whether the probative value of the Car

Stop evidence would have unfairly prejudiced the defendant by influencing the

jury to find that Mr. Ortiz must have committed the instant offense because he

committed other offenses in the past.

D.

Admitting Evidence of the 2009 Car Stop Was Not Harmless

The government also glibly argued that there was no harm in admitting the

evidence of the Car Stop was harmless because the evidence against Mr. Ortiz was

overwhelming. If that were true, why then did the government offer it at all?

Contrary to the government’s arguments, the weight of the remaining

evidence mitigates against and not in favor of admission of other card evidence

which had little if any probative value. See United States v. McCallum, 584 F.3d

17

471, 477 (2d Cir. 2009) (“Our review of the record thus leads us to conclude that

the District Court received the convictions as propensity evidence in sheep's

clothing and did so with insufficient regard for the unfair prejudice that surely

would result from their admission.”)

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 evidence clearly influenced the jury’s verdict.

Accordingly its admission was not harmless.

18

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

In the instant case, the trial judge improperly allowed the government’s

interpreter to testify as an expert witness. The government qualified the interpreter

as an expert and adduced from her testimony based on her specialized training and

experience. The government acknowledges this would be impermissible. The

government attempts to equate the testimony of the interpreter identifying the

voice on the intercepted conversations as belonging to Mr. Ortiz with the results of

an investigation. The government relies on United States v. Rigas, 490 F.3d 208,

224 (2d Cir. 2007) cited at GBr. 3i, 32, 35.

However, Rigas is distinguishable on its facts. In that case, the witness used

arithmetic to tally figures. The Court said that the “Testimony result[ed] from a

process of reasoning familiar in everyday life.” In the instant case, the process used

by the interpreter was not familiar to the jurors in their everyday experience but

resulted from her specialized training and experience – the hallmarks of expert

testimony.

In the other case cited by the government, United States v. Garcia, 413 F.3d

201 (2d Cir 2005) in that case, the interpreter was able to identify the defendant’s

voice from her work monitoring the wiretap over a period of time. Of course, the

19

jurors in their everyday lives can identify the voices of people who they hear on a

regular basis. Notably, in Garcia, this Court dismissed the challenge as “little more

than a distraction” 413 F.3d at 207 fn.36. However, in the instant case, the

interpreter did not limit her testimony to whether she was able to identify the

defendant’s voice because she had heard it before – using the same processes as

any lay witness. Rather, the government elicited extensive testimony regarding her

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 this testimony in the charge.

6 United States v Mendiola, 707 F.3d 735, 739-40 (7th Cir. 2013), cited by the government does not address the question of whether the government elicited from the witness whether she used her training and experience as a linguist to identify the defendant’s voice.

20

POINT III

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

IT WAS DEADLOCKED AND REVEALED THAT THERE WAS A SINGLE HOLDOUT

In the instant case, it is clear that the repeated Allen Charge overcame the

resolve of the sole hold-out and resulted in the guilty verdict. 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

(unpublished decision) (4th Cir. Md. Jan. 17, 1996) citing United States v. Rogers,

289 F.2d 433, 437 (4th Cir. 1961). The Appellant relies on his arguments in the

main brief on this point.

CONCLUSION

For the reasons stated above and in our main brief, the judgment and

sentence in this case should be vacated.

Dated: June 18, 2013 Garden City, New York

Respectfully submitted,

ETE . TOMAO, ESQ. (PT6 09) Attorney for Defendant-Appellant Miguel Ortiz 7

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

7 We acknowledge the assistance of J. Leathem Leahy, a rising second year student at St. John's Law School, in the preparation of this brief.

21

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that the foregoing reply 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 reply brief is 4,454.

Dated: Garden City, New York Junel8, 2013

Respectfully submitted,

Pet J. Tomao, Esq. Attorney for Defendant­Appellant Miguel Ortiz 226 Seventh Street, Suite 302 Garden City, New York 11530 (516) 877-7015