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
8
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
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