United States v. Julio Ortega , 623 F. App'x 172 ( 2015 )

Case: 14-51228 Document: 00513268022 Page: 1 Date Filed: 11/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-51228 November 12, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JULIO ORTEGA, also known as July Ortega,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-184-10
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Julio Ortega appeals from his conviction for conspiring to knowingly pass
counterfeit United States currency with the intent to defraud. He argues that
the district court abused its discretion when it permitted the Government to
introduce the hearsay statement of non-testifying coconspirator Lorena
Pacheco and when it denied his motion for mistrial based on the introduction
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-51228
of the same inadmissible hearsay evidence. Ortega further asserts that the
district court’s error was not harmless.
Because Ortega’s objection was sufficiently contemporaneous and
precise, such that the district court had ample opportunity to correct any error
that it may have made, the abuse of discretion standard of review is applicable.
See United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998); United States
v. Rodriguez, 15 F.3d 408, 417 (5th Cir. 1994). Additionally, because the
district court recognized and considered Ortega’s motion for mistrial, review is
also under an abuse of discretion standard. See United States v. Millsaps, 157
F.3d 989, 993 (5th Cir. 1998).
The challenged statement was not inadmissible hearsay and was
properly admitted by the district court. The statement of Lorena Pacheco, wife
of cooperating coconspirator Benito Pacheco, was not offered for the truth of
the matter asserted; it was not offered to show that Lorena Pacheco told Benito
Pacheco to lie and protect the individuals involved in the counterfeit scheme.
See FED. R. EVID. 801(c). Rather, as the record reflects, the Government
referenced the statement of Lorena Pacheco in an attempt to counter Ortega’s
insinuations that Benito Pacheco’s trial testimony was a recent fabrication and
a product of bias in an attempt to receive a lesser sentence for his guilty plea
to misprision of a felony. This use of Lorena Pacheco’s statement by the
Government is permissible. Lorena Pacheco’s statement was offered to provide
information explaining the motive or bias, or lack thereof, for Benito Pacheco’s
trial testimony; this information is relevant and not considered hearsay or
improper bolstering of a witness. See United States v. Ballis, 28 F.3d 1399,
1405 (5th Cir. 1994); United States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984);
United States v. Arce, 997 F.2d 1123, 1130 (5th Cir. 1993); United States v.
Hodnett, 537 F.2d 828, 829 (5th Cir. 1976). The reference to Lorena Pacheco’s
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statement is also permissible because Ortega attempted to impeach Benito
Pacheco with his prior statements, which were inconsistent with his trial
testimony. See United States v. Cochran, 499 F.2d 380, 388-89 (5th Cir. 1974);
United States v. Austin, 774 F.2d 99, 102 (5th Cir. 1984). Lastly, Lorena
Pacheco’s statement did not implicate Ortega’s guilt in the counterfeit scheme
or in Ortega’s charged offense. See United States v. Evans, 950 F.2d 187, 191
(5th Cir. 1991).
Accordingly, the district court did not abuse its discretion when it
overruled Ortega’s objection to the Government’s admission of Lorena
Pacheco’s out-of-court statement or when it denied Ortega’s motion for mistral
based on the same admission of evidence.
AFFIRMED.
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