United States v. Ortiz , 536 F. App'x 127 ( 2013 )

12-3372-cr
United States v. Ortiz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
21st day of October, two thousand thirteen.
Present: JON O. NEWMAN,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- 12-3372-cr
MIGUEL ORTIZ,
Defendant-Appellant.
_____________________________________________________
Appearing for Appellant: Peter Tomao, Garden City, N.Y.
Appearing for Appellee: Elisha J. Kobre, Assistant United States Attorney for the Southern
District of New York (Preet Bharara, United States Attorney,
Jennifer G. Rodgers, Assistant United States Attorney, on the
brief) New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Cote, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Miguel Ortiz appeals from a judgment of conviction entered on August 13, 2012 in the
United States District Court for the Southern District of New York (Cote, J.) for one count of
conspiracy to distribute and possession with intent to distribute one kilogram or more of heroin
in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
On appeal, Ortiz argues the district court abused its discretion in admitting evidence of a
car stop in 2009, where it was discovered he was transporting roughly $100,000 concealed in a
suitcase. Our Court “has adopted an ‘inclusionary’ approach to other act evidence under Rule
404(b), which allows such evidence to be admitted for any purpose other than to demonstrate
criminal propensity.” United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004). On review,
our 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.” Id. “We have, however, emphasized that this inclusionary rule is not a carte
blanche to admit prejudicial extrinsic act evidence when . . . it is offered to prove propensity.”
United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012).
The district court did not abuse its discretion in admitting evidence of the 2009 stop.
Testimony regarding the stop was probative of Ortiz’s knowledge and intent, specifically that (1)
Ortiz had likely worked in the drug business on a number of occasions; (2) when he worked in
the drug business, his role was as a delivery person; (3) he previously used a vehicle registered
to his co-conspirator while working in the drug business; and (4) he previously transported
concealed goods; the evidence also established that Ortiz had likely been aware of his role in the
drug trade. See, e.g., Dowling v. United States, 493 U.S. 342, 353 (1990) (ruling that evidence
of defendant's prior robbery of a home was "circumstantially valuable" in proving he robbed a
bank where on both occasions he wore a ski mask and carried a small pistol); United States v.
Sappe, 898 F.2d 878, 880 (2d Cir. 1990) (affirming admission of evidence of prior bank
robberies where, as in the charged crime, defendant hid a gun in a newspaper and positioned it
on the counter so that the teller could see the gun). While a fuller explanation of the district
court’s balancing of the probative value of the evidence vis-a-vis the prejudicial value would
have been helpful, the issue was addressed. Also, the district court properly gave a limiting
instruction shortly after the testimony was admitted. See Dowling, 493 U.S. at 353.
Similarly, we find no abuse of discretion with the admission of voice identification
evidence as lay opinion from a certified Spanish-English interpreter. Lay testimony does not
cross the line into expert opinion testimony when the testimony “result[ed] from a process of
reasoning familiar in everyday life.” United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007).
As our Court explained in Rigas:
A witness's specialized knowledge, or the fact that [she] was
chosen to carry out an investigation because of this knowledge,
does not render [her] testimony ‘expert' as long as it was based on
[her] investigation and reflected [her] investigatory findings and
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conclusions, and was not rooted exclusively in [her] expertise. If,
however, the witness's testimony was not a product of [her]
investigation, but rather reflected [her] specialized knowledge,
then it was impermissible expert testimony. In particular, Rule
701(c), which prohibits testimony from a lay witness that is based
on scientific, technical, or other specialized knowledge, is intended
to eliminate the risk that the reliability requirements set forth in
Rule 702 will be evaded through the simple expedient of
proffering an expert in lay witness clothing.
Id. (internal quotation marks and citation omitted). At the end of the day, while the witness may
have brought a more trained ear to the process, her testimony was based on her own
investigation and perceptions, not on her specialized knowledge.
We have examined the remainder of Oritz’s arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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