12-3372United States Court of Appeals

FOR THE SECOND CIRCUIT

Docket No. 12-3372

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 THE UNITED STATES OF AMERICA

PREET BHARARA,United States Attorney for the

Southern District of New York,

Attorney for the United States

of America.

To Be Argued By:ELISHA J. KOBRE

ELISHA J. KOBRE,JENNIFER G. RODGERS,

Assistant United States Attorneys,

Of Counsel.

TABLE OF CONTENTS PAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. The Government’s Case . . . . . . . . . . . . . 2

a. Events Leading to the January 28, 2011 Heroin Transaction . . . . . 3

b. The January 28, 2011 Heroin Transaction . . . . . . . . . . . . . . . . . . . 5

c. The Cell Site Evidence . . . . . . . . . . 8

d. The Voice Identification Evidence . . . . . . . . . . . . . . . . . . . . . 10

e. The 404(b) Evidence Regarding the May 28, 2009 Car Stop . . . . . . 12

2. The Defense Case . . . . . . . . . . . . . . . . . 13

3. The Verdict . . . . . . . . . . . . . . . . . . . . . . 13

B. The Sentencing . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

POINT I—The District Court Properly Admitted Evidence of the May 28, 2009 Car Stop . . . . . . 14

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 14

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 18

ii PAGE

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. The Car Stop Was Properly Admitted to Show Ortiz’s Knowledge and Intent . . . . . . . . . . . . . . . . . . . . . . . 21

2. The 2009 Car Stop Was Properly Admitted on the Issue of Identity . . . . 23

3. The District Court Correctly Determined That the Probative Value of the Rule 404(b) Evidence Was Not Substantially Outweighed by a Danger of Unfair Prejudice . . . . . 26

POINT II—The District Court Properly Admitted Lay Opinion Voice Identification Evidence . . . 29

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 29

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 30

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 34

POINT III—The District Court Properly Exercised Its Broad Discretion Not to Dismiss the Jury . 38

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 39

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 43

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 49

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

iii PAGE

TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) . . . . . . . . . . . . . . . . . . . . . . . . 45

Arizona v. Washington, 434 U.S. 497 (1978) . . . . . . . . . . . . . . . . . . . . . 43, 44

Bank of China v. NBM LLC, 359 F.3d 171 (2d Cir. 2004) . . . . . . . . . . . . . . 31, 35

Connecticut Bar Ass’n v. United States, 620 F.3d 81 n.13 (2d Cir. 2010) . . . . . . . . . . . . . . 14

Costantino v. Herzog, 203 F.3d 164 (2d Cir. 2000) . . . . . . . . . . . . . . . . . 19

Dowling v. United States, 493 U.S. 342 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 24

Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . . . . . . . . . . . . . . . . . . 46, 50

M.O.C.H.A. Soc’y, Inc. v. City of Buffalo, 689 F.3d 263 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 31

Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 44

Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006) . . . . . . . . . . . . . passim

United States v. Aminy, 15 F.3d 258 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 22

iv PAGE

United States v. Arango Correa, 851 F.2d 54 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . 22

United States v. Armedo Sarmiento, 545 F.2d 785 (2d Cir. 1976) . . . . . . . . . . . . . . . . . 33

United States v. Camara, 485 Fed. Appx. 457 (2d Cir. 2012) . . . . . . . . . . . . 27

United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979) . . . . . . . . . . . . . . 33, 37

United States v. Ceballos, 385 F.3d 1120 (7th Cir. 2004) . . . . . . . . . . . . . . . 37

United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975) . . . . . . . . . . . . . . . . . 33

United States v. Colon, 880 F.2d 650 (2d Cir.1989) . . . . . . . . . . . . . . . . . . 21

United States v. Crispo, 306 F.3d 71 (2d Cir. 2002) . . . . . . . . 44, 45, 46, 49

United States v. Curley, 639 F.3d 50 (2d Cir. 2011) . . . . . . . . . . . . . . . 18, 19

United States v. Di Geronimo, 598 F.2d 746 (2d Cir. 1979) . . . . . . . . . . . . . . . . . 24

United States v. Doe, 297 F.3d 76 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . 33

United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003) . . . . . . . . . . . . . . . 20, 28

United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980) . . . . . . . . . . . . . . . . . 27

v PAGE

United States v. Frady, 456 U.S. 152 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Garcia, 413 F.3d 201 (2d Cir. 2005) . . . . . . . . . . . . . . 36, 37

United States v. Gigante, 729 F.2d 78 (2d Cir. 1984) . . . . . . . . . . . . . . . 44, 49

United States v. Gubelman, 571 F.2d 1252 (2d Cir. 1978) . . . . . . . . . . . . . . . . 23

United States v. Hemmings, 482 Fed. Appx. 640 (2d Cir. 2012) . . . . . . . . . . . . 47

United States v. Hynes, 424 F.2d 754 (2d Cir. 1970) . . . . . . . . . . . . . . 44, 46

United States v. Jennings, 471 F.2d 1310 (2d Cir. 1973) . . . . . . . . . . . . . . . . 47

United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004) . . . . . . . . . . 18, 19, 28

United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999) . . . . . . . . . . . . . . . . . 25

United States v. Martinez, 446 F.2d 118 (2d Cir. 1971) . . . . . . . . . . . . . . . . . 47

United States v. Mavashev, 455 Fed. Appx. 107 (2d Cir. 2012) . . . . . 31, 34, 35

United States v. McCallum, 584 F.3d 471 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 18

United States v. Mendiola, 707 F.3d 735 (7th Cir. 2013) . . . . . . . . . . . . . 36, 37

vi PAGE

United States v. Mercado, 573 F.3d 138 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 20

United States v. Nektalov, 461 F.3d 309 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 19

United States v. O’Connor, 580 F.2d 38 (2d Cir. 1978) . . . . . . . . . . . . . . . 48, 51

United States v. Paulino, 445 F.3d 211 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 19

United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992) . . . . . . . . . . . . . . . . 28

United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 20

United States v. Ramirez Amaya, 812 F.2d 813 (2d Cir. 1987) . . . . . . . . . . . . . . . . . 22

United States v. Ramirez, 894 F.2d 565 (2d Cir. 1990) . . . . . . . . . . . . . . . . . 21

United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) . . . . . . . . . . 31, 32, 35

United States v. Robinson, 560 F.2d 507 (2d Cir. 1977) . . . . . . . . . . . . . passim

United States v. Roldan Zapata, 916 F.2d 795 (2d Cir. 1990) . . . . . . . . . . . . . . 19, 27

United States v. Roman, 870 F.2d 65 (2d Cir. 1989) . . . . . . . . . . . 48, 50, 51

United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 32

vii PAGE

United States v. Rubin, 37 F.3d 49 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . 20

United States v. Ruggiero, 928 F.2d 1289 (2d Cir. 1991) . . . . . . . . . 44, 48, 50

United States v. Sanders, 232 Fed. Appx. 42 (2d Cir. 2007) . . . . . . . . . . 44, 47

United States v. Santiago, 126 Fed. Appx. 21 (2d Cir. 2005) . . . . . . . . . . . . . 50

United States v. Scott, 677 F.3d 72 (2d Cir. 2012) . . . . . . . . . . . 19, 25, 26

United States v. Sommerstedt, 752 F.2d 1494, amended 760 F.2d. 999 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

United States v. Speed, 272 Fed. Appx. 88 (2d Cir. 2008) . . . . . . . . . . . . . 24

United States v. Tice, 133 F.3d 908 (2d Cir. 1998) . . . . . . . . . . . . . . 23, 24

United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007) . . . . . . . . . . . . . . 33, 38

United States v. Wernick, 691 F.3d 108 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 33

United States v. Williams, 205 F.3d 23 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . 19

United States v. Winley, 638 F.2d 560 (2d Cir. 1981) . . . . . . . . . . . . . . . . . 44

viii PAGE

United States v. Yannotti, 541 F.3d 112 (2d Cir. 2008) . . . . . . . . . . . . . . . . . 31

Statutes, Rules & Other Authorities:

Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Fed. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Fed. R. Evid. 701, advisory comm. note . . . . . . . . . . 32

Fed. R. Evid. 701(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fed. R. Evid. 701(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fed. R. Evid. 701(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fed. R. Evid. 803(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fed. R. Evid. 901(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . 32

United States Court of Appeals FOR THE SECOND CIRCUIT

Docket No. 12-3372

UNITED STATES OF AMERICA, Appellee,

—v.—

MIGUEL ORTIZ, Defendant-Appellant.

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement

Miguel Ortiz appeals from a judgment of convic-tion entered on August 13, 2012, in the United States District Court for the Southern District of New York, following a six-day trial before the Honorable Denise Cote, United States District Judge, and a jury.

Indictment 11 Cr. 875 (DLC) was filed on April 6, 2011, in one count. Count One charged Ortiz with, in or about January 2011, conspiring to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of Title 21, United States Code, Sections 846 and 841(b)(1)(A).

2

Trial against Ortiz began on April 30, 2012 and concluded on May 7, 2012, when Ortiz was found guilty on the sole count of the Indictment.

On August 9, 2012, Judge Cote sentenced Ortiz to 151 months’ imprisonment. Judge Cote also sen-tenced Ortiz to five years’ supervised release, and imposed a mandatory $100 special assessment.

Ortiz is serving his sentence.

Statement of Facts

A. The Trial

1. The Government’s Case

At trial, the Government established that, in Jan-uary 2011, Ortiz conspired with others to distribute and possess with intent to distribute at least six kilo-grams of heroin. Evidence at trial showed that, on January 28, 2011, Ortiz borrowed a Chevrolet Tahoe from a close friend named Kenny Vasquez in Queens, and drove the Tahoe, carrying approximately six kil-ograms of heroin secreted in a car battery, to the Metro Mall in Queens where Ortiz transferred the heroin to the trunk of a co-conspirator named Omar Garcia. The evidence presented at trial, which Judge Cote characterized as “overwhelming” (A. 443, 455),1 —————

1 “A.” refers to the appendix filed with Ortiz’s brief on appeal; “Br.” refers to Ortiz’s brief on appeal; “GX” refers to a Government Exhibit at trial; “Add.” refers to the Addendum filed with this brief; and “PSR” refers to the Presentence Investigation Report

3 included testimony of Vasquez, the owner of the Ta-hoe, that he and Ortiz were the only ones with access to the Tahoe on January 28, 2011, and cell site evi-dence showing that: (1) on the night of the heroin transaction, Ortiz traveled from Vasquez’s house to the Metro Mall and then back to Vasquez’s house; and (2) the cell phone used to arrange the heroin transaction and a cell phone registered in Ortiz’s own name invariably traveled together during the period before and after the heroin transaction, showing that it was Ortiz who possessed the cell phone used to set up the heroin transaction.

This evidence, together with voice identification evidence showing that Ortiz was the individual speaking during multiple phone calls planning the heroin delivery; testimony by Ortiz’s co-conspirator, Omar Garcia, that Ortiz delivered the heroin; and properly admitted Rule 404(b) evidence showing that Ortiz had previously delivered large sums of cash that Ortiz knew probably resulted from the sale of drugs, combined to present powerful circumstantial proof of Ortiz’s knowing and intentional participation in the January 28, 2011 six-kilogram heroin transac-tion.

a. Events Leading to the January 28, 2011 Heroin Transaction

On January 27, 2011, pursuant to a court-authorized wiretap of a phone belonging to an indi-————— prepared by the United States Probation Office in ad-vance of Ortiz’s sentencing.

4 vidual named Omar Garcia, the Drug Enforcement Administration (“DEA”), together with the Union County Prosecutor’s Office (“UCPO”), intercepted a call regarding an upcoming six kilogram heroin transaction. The caller, a man known as “Pina,” told Garcia in coded language that six kilograms of heroin would be arriving shortly and that Garcia should ar-range to pick up that heroin from the supplier, who was later identified as Miguel Ortiz, the defendant. Pina also asked Garcia for his cell phone number so Pina could provide it to the supplier (Ortiz). (A. 125-28; GX 108T). The next day, a number of phone calls, all of which were in Spanish, were intercepted be-tween Garcia and Ortiz. (GX 102T-107T).

During the initial phone call, Ortiz and Garcia used prearranged Spanish passwords to confirm their respective identities: Garcia’s password was “gavilan” and Ortiz’s password was “fruta.” (A. 127-29; GX 102T). Ortiz indicated that he was “ready to go see@ Garcia, and the two agreed to meet later that night at the parking lot of the Metro Mall in Queens. (A. 127-29; GX 102T). Garcia arranged to get a ride to the Metro Mall that evening with his friend Carlos Zapata, who drives a Toyota Camry. (A. 129). Garcia also received a call from Pina asking whether Garcia had received a call yet from the supplier (Ortiz). (A. 130-31; GX 109, 109T). Garcia replied that he had received the call and that he, Garcia, was “waiting for the guy now . . . so I can head on over there.” (Id.).

Following this call, agents intercepted a series of phone calls between Ortiz and Garcia from about 8:40 p.m. to about 9:04 p.m., during which they updated

5 each other about their respective locations and the timing of the transaction. On the last call, Ortiz told Garcia that he, Ortiz, was “behind the trucks” in the Metro Mall parking lot and was in a Chevrolet Tahoe. (A. 144-45, GX 107T).

b. The January 28, 2011 Heroin Transaction

DEA and UCPO conducted physical surveillance of the parking lot of the Metro Mall on the evening of January 28, 2011. (A. 74-77). Special Agent Shane Todd observed a Toyota Camry (the “Camry”) arrive at the Metro Mall parking lot at about 8:45 p.m. with one person, later identified as Carlos Zapata, in the driver’s seat, and one person in the front passenger seat. (A. 77-79). From prior physical surveillance, Special Agent Todd immediately recognized the indi-vidual who was sitting in the front passenger seat as Omar Garcia. (A. 77-79). Special Agent Todd ob-served the Camry park alongside a Chevrolet Tahoe (the “Tahoe”). (A. 81, 146). Special Agent Todd also observed that the trunk of the Camry was open and saw an individual close the trunk of the Camry, as though the individual had just placed something into the trunk of the Camry. This same individual then walked briskly between the two vehicles around the front of the Tahoe and got into the front driver’s seat of the Tahoe. (A. 82-83). Special Agent Todd described this individual as a short male with medium build wearing winter clothing, but was not able to see the individual’s face. (A. 83-84). Special Agent Todd ob-served that this individual appeared to have no trou-ble walking. Both cars left the Metro Mall parking

6 lot. (A. 84). Later that night, law enforcement officers stopped the Camry and recovered from the trunk a battery containing approximately six kilograms of heroin. (A. 150-51, 170-71; GX 53A-G, 204).

Omar Garcia, in his testimony at trial, identified Ortiz as the individual who delivered the car battery containing the heroin to him on January 28, 2011 at the Metro Mall. (A. 147-48).2 Garcia also testified that, after the Camry was parked next to the Tahoe, Ortiz got out of the Tahoe, approached the Camry with a car battery, and placed the battery in the trunk of the Camry. (A. 146-49). Garcia testified that law enforcement officers stopped the Camry later that night, and recovered the car battery containing about six kilograms of heroin from the trunk. (A. 150-51).

Special Agent Todd initially followed the Tahoe as it left the Metro Mall parking lot, and observed the color and license number. Records from the New York State Department of Motor Vehicles (“DMV”) showed that the Tahoe was at all relevant times registered to

————— 2 During a proffer session on or about January

19, 2012, Garcia identified two photographs of the seven he was shown as being individuals who resem-bled the person who delivered the heroin to Garcia at the Metro Mall on January 28, 2011. Garcia also in-dicated that one of these two photographs looked more like the person who had delivered the heroin; that photograph was of Miguel Ortiz, the defendant. (A. 156).

7 Kenny Vasquez, residing at a particular address in Woodhaven, New York. (A. 176; GX 206).

In the week following the heroin transaction, Spe-cial Agent Todd conducted physical surveillance in the vicinity of Vasquez’s address, and observed an in-dividual, later identified as Kenny Vasquez, getting into the Tahoe and using the Tahoe to perform er-rands. Special Agent Todd testified that Vasquez did not resemble the person Special Agent Todd observed driving the Tahoe on January 28, 2011 in the parking lot of the Metro Mall. In particular, Special Agent Todd observed that, unlike the medium-build indi-vidual who had walked briskly on January 28, 2011, Vasquez was “very heavy . . . obese,” appeared to have a limp, and had difficulty walking and getting into the Tahoe. (A. 89-91, GX 52A-J).

Kenny Vasquez, who grew up with Ortiz (A. 183), testified at trial that during 2010 and 2011, Ortiz al-ways had access to Vasquez’s Tahoe, and that Ortiz was the only one other than Vasquez who had access to the Tahoe. (A. 176, 178). Vasquez stated that he typically parked the Tahoe in the vicinity of his house in Woodhaven, and that he would leave the keys on the window sill of his house for Ortiz to use whenever Ortiz wanted. (A. 172-73, 178). Aside from Vasquez’s wife, who does not drive, no one else other than Ortiz knew that Vasquez left keys to the Tahoe on the win-dow sill. (Id.). Vasquez also testified that most of the time Ortiz did not let Vasquez know he was borrow-ing the car. (A. 178-79). Consistent with Agent Todd’s observations, Vasquez explained that since at least

8 January 2011 he had had difficulty walking. (A. 174-75).

Finally, Vasquez was asked about a particular 2006 gray Ford Freestar which was registered to Vasquez from in or about January 2009 through at least January 28, 2011. (A. 87-88; GX 206). Vasquez testified that, because Ortiz had a prior conviction for driving under the influence, Vasquez agreed to regis-ter Ortiz’s 2006 gray Ford Freestar in Vasquez’s name. (A. 180-81).

c. The Cell Site Evidence

Cell site evidence presented at trial centered on two cellular phones used by Ortiz. The first was a T-Mobile phone assigned call number 347-925-9507, which was not registered to a real individual but to “Victor None” (the “Drug Phone”). The Drug Phone was the phone that was intercepted communicating several times with Garcia on January 28, 2011 to ar-range the heroin transaction that took place at the Metro Mall. (A. 235-37; GX 152, 202). The second phone was an AT&T cell phone assigned call number 646-417-3871, registered to “Miguel Ortiz” with an address of 1708 Summerfield Street, Apartment A4, Ridgewood, New York (the “Personal Phone”). The Personal Phone was seized from Ortiz’s person inci-dent to his arrest on July 14, 2011. (A. 95-97; GX 151, 207).

Cell site evidence presented at trial established two compelling facts. First, the cell site evidence showed that the Personal Phone traveled on the night of the heroin transaction from the vicinity of the

9 home of Kenny Vasquez, the owner of the Tahoe, to the Metro Mall just in time for the heroin transac-tion, and right afterwards returned to the vicinity of Vasquez’s house. Second, cell site evidence estab-lished that the Drug Phone—the phone used several times to communicate with Omar Garcia to arrange the time and place of the heroin transaction—and the Personal Phone traveled together over the course of more than a week, demonstrating that the two phones were in possession of the same person.

Special Agent Eric Perry, a member of the FBI’s cellular analysis survey team presented evidence con-cerning the cell site data retrieved for the Drug Phone and the Personal Phone. (A. 240-60). Specifi-cally, Special Agent Perry testified that the data showed based on the sequence of calls, “the cell tow-ers . . . utilized by Ortiz’s personal phone on the night of January 28, 2011 [are] consistent with travel from the vicinity of [Vasquez’s house] to the vicinity of the Metro Mall just before 9 p.m., and then back to the vicinity of [Vasquez’s house] just after 9 p.m.” (A. 267). Special Agent Perry also testified that anal-ysis of calls from the Drug Phone showed that it fol-lowed the same travel pattern. (A. 267-69, 272; GX 157). In other words, the cell site location infor-mation that Special Agent Perry reviewed for the Personal Phone and Drug Phone was consistent with both phones traveling on January 28, 2011 from Vasquez’s house to the Metro Mall just before the heroin transaction, which occurred shortly after 9:00 p.m., and then back to Vasquez’s house just after the heroin transaction.

10

Agent Perry also testified about what the cell site records showed about the two phones on days other than January 28, 2011, the date of the heroin trans-action. (A. 277-85; 287-88). Agent Perry found that “over several days [and] different times on those days . . . the phones were being utilized in the same vicini-ty of each other, throughout an expansive geograph-ical area.” (A. 278). Indeed, after studying the cell site records and, specifically, more than 30 occasions where the phones were used at similar times, Agent Perry was unable to find a time that the Personal Phone and Drug Phone were a significant distance apart. (A. 283-85, 287-88; GX 162).

d. The Voice Identification Evidence

Evidence at trial also demonstrated that Ortiz was the user of the Drug Phone on the January 28, 2011 calls with Omar Garcia to arrange the heroin transaction later that night. (GX 100). As a basis for comparison, two recordings known to be of Ortiz’s voice were utilized. The first was a voice exemplar provided by Ortiz on September 30, 2011 at the U.S. Attorney’s Office. (A. 192-96; GX 110, 112T-115T, 209). The voice exemplar consisted of Ortiz repeating sentences in Spanish read to him by a Spanish inter-preter and reading an article from a Spanish-language publication. (A. 192-93). The second record-ing of Ortiz’s voice was a conversation that occurred during a “ruse call” placed to the Personal Phone on April 21, 2011 by a confidential source working with DEA. (A. 189-92; GX 208). A male, believed to be Ortiz, answered the Personal Phone and engaged in a

11 conversation with the confidential source. (GX 116, 117T, 208).

Elizabeth Caruso, a certified Spanish-English in-terpreter and translator, testified that, in her opin-ion, the voices in all three sets of Spanish-language recordings—the intercepted calls over the Drug Phone, the voice exemplar provided by Ortiz, and the ruse call to the Personal Phone—were the same. (A. 196-97). Ms. Caruso, who had prepared Spanish transcripts and English translations of each of these recordings (GX 102T-118T), explained that she had familiarized herself with the recordings by listening to them several times in the course of transcribing them. (A. 188, 191-92, 195-96). Based upon specific similarities in the three sets of recordings that she presented to the jury, Ms. Caruso testified that, in her opinion, all three sets of recordings contained the same voice. (A. 196). Among these similarities, Ms. Caruso testified that the person in the recordings: (1) said the word “hello” in a distinctive musical manner (A. 205-06); (2) used a questioning tone in or-dinary sentences (A. 206-08); (3) left off the final “s” in words ending in “s,” in the manner of Caribbean Spanish speakers (A. 208-12); (4) pronounced “o” with an “a” sound in certain words (A. 212-14); and (5) in-verted the “r” and “l” sounds in many words, also in the manner of Caribbean Spanish speakers. (A. 214-16). According to Ms. Caruso, while certain of these characteristics are regional, others are “specific idio-syncracies” not generally seen among Spanish speak-ers. (A. 217-19). Ms. Caruso also explained that the pitch, tone, and cadence of the voices in each set of recordings was the same. (A. 196-97).

12

e. The 404(b) Evidence Regarding the May 28, 2009 Car Stop

Michael Krol, a special agent with DEA, testified that on May 28, 2009, he and other agents stopped Ortiz who was at the time driving a Ford Freestar with a specific New York license plate (the “Free-star”). (A. 224).3 The Freestar was registered to Ken-ny Vasquez (GX 206), but belonged to Ortiz, who had asked Vasquez to register the car under Vasquez’s name to avoid high insurance rates resulting from Ortiz’s prior conviction for driving while under the influence. (A. 179-81).

Upon approaching the Freestar, Special Agent Krol observed that Ortiz appeared very nervous and failed to make eye contact with the agents. (A. 224). Agents then performed a consent search of the Free-star and found, in the “rear hatchback” of the Free-star, a black bag containing another bag wrapped in cellophane, which contained a large sum of United States currency. (A. 225). Agent Krol further testified about Ortiz’s statements after the agents had discov-ered the money:

[Ortiz] did not know who the money belonged to, [he] only . . . knew that there was money in the bag,

————— 3 Because Special Agent Krol had difficulty re-

membering details of the stop, which had occurred about three years earlier, he was permitted to testify from a surveillance report he prepared on the day of the stop as a past recorded recollection. (A. 223-24); see Fed. R. Evid. 803(5).

13 and [ ] 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 mon-ey 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.

(A. 226). Following this testimony, Judge Cote provided a limiting instruction to the jury. (A. 234-35).

2. The Defense Case

Ortiz did not present any witnesses or other evi-dence.

3. The Verdict

The jury deliberated for approximately three days before returning a guilty verdict against Ortiz. (A. 441).

B. The Sentencing

In anticipation of Ortiz’s sentencing, the Proba-tion Office calculated the applicable Guidelines Range under the United States Sentencing Guide-lines (the “Guidelines”) to be 168 to 210 months’ im-prisonment, and recommended a sentence of 168 months’ imprisonment. (PSR at 15-16). On August 9, 2012, Judge Cote calculated a Guidelines range of

14 151 to 168 months’ imprisonment,4 and sentenced Ortiz to 151 months’ imprisonment to be followed by five years of supervised release, and imposed a $100 special assessment. (A. 455-56).

A R G U M E N T

POINT I

The District Court Properly Admitted Evidence of the May 28, 2009 Car Stop5

A. Relevant Facts

After Ortiz made a pretrial motion requesting no-tice of any evidence to be offered at trial pursuant to Federal Rule of Evidence 404(b), the Government

————— 4 Judge Cote settled on a lower Guidelines range

than that found by the Probation Office because she decided not to count one of Ortiz’s prior criminal con-victions, which changed his Criminal History Catego-ry to Category I instead of Category II. (A. 454).

5 In Ortiz’s Statement of Issues Presented for Appeal he indicates that an issue presented is wheth-er there was “sufficient evidence to support the judg-ment” (Br. 4), but Ortiz fails to present any challenge to the sufficiency of the evidence in his brief. As a re-sult, Ortiz has waived any sufficiency argument and the Government does not address this claim further herein. See Connecticut Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010).

15 submitted a brief in which it described in detail the evidence it sought to elicit concerning the May 28, 2009 car stop (the “Car Stop”), and the legal basis for its admission. (Add. 6-11). Specifically, the Govern-ment argued that the evidence was highly relevant to the defendant’s knowledge and intent regarding the charged crime. (Add. 9-11). Judge Cote denied Ortiz’s motion in a brief order dated March 19, 2012 (Add. 14), subsequently explaining that the denial was to Ortiz’s motion for notice, given that the Gov-ernment provided notice in its brief (A. 32-33).

At a pretrial conference on April 24, 2012, the par-ties sought a ruling on the substance of the Car Stop evidence. (A. 17-18). Defense counsel argued that the evidence should be excluded because it was extremely prejudicial to Ortiz. (A. 33). The Government re-sponded that the evidence was highly relevant to the contested issues of identity and knowledge. (A. 34-35). The District Court reserved decision on whether the evidence should be admitted, but noted that it did not identify any unfair prejudice in the Car Stop evi-dence that would render it inadmissible under Feder-al Rule of Evidence 403. (A. 39).

On April 30, 2012, the District Court issued its ruling, finding that the Car Stop evidence was admis-sible to show knowledge, and that, while determining it to be a closer call, also finding it admissible to show identity. (A. 48-51). Judge Cote ascertained that the parties would not mention the Car Stop evidence in opening statements, and stated that she might change her mind depending on how the evidence de-veloped. Specifically, the District Court suggested

16 that the defense may not contest knowledge and in-tent with respect to how the narcotics were concealed, but noted that knowledge and intent likely would be relevant anyway given evidence of the defendant’s participation on recorded phone calls setting up the drug transaction. Judge Cote also indicated that de-fense counsel could raise the issue again later if he wished. (A. 51). Defense counsel did not raise the is-sue again.

Accordingly, after thorough argument and consid-eration, evidence of Ortiz’s prior conduct and state-ments on May 28, 2009 was admitted into evidence under Rule 404(b) for its relevance to the issues of identity and knowledge/intent.

After the relevant testimony, Judge Cote instruct-ed the jury as follows:

Ladies and gentlemen, at the conclusion or near the end of this morning’s session you heard testimony from an officer re-garding events that occurred in May of 2009. I would like to now give you a charge with respect to how you should consider, if at all, evidence about those events in May of 2009. Let me remind you that the defendant is not on trial for committing any acts that are not alleged in the indictment. Ac-cordingly, you may not consider evidence of the events of May 28, 2009 as a sub-stitute for proof that the defendant committed the crime with which he is

17

charged in the indictment nor may you consider this evidence as proof that the defendant has a criminal personality or bad character. Evidence of the events of May 28, 2009 was admitted for much more limited purposes and you may consider it for those limited purposes only. First, evidence of these events was ad-mitted for whatever light you find it sheds, if any, on the identity of a person who possessed and transferred a battery in January of 2011. If you find that, tak-en together, the events of May 28, 2009 are sufficiently similar to those of Janu-ary 2011 to establish the existence of a pattern of behavior or modus operandi, you may, but are not required to, use this fact in determining whether the de-fendant was the person who possessed and transferred a battery in January 2011. Evidence of the events of May 28, 2009 was also admitted for whatever proba-tive value, if any, you find it sheds on the defendant’s knowledge of the con-tents of the battery and intent in trans-ferring it, if you find, of course, that the defendant was the person who trans-ferred the battery, and on whether the defendant acted because of innocent

18

mistake or accident in connection with the events of January 2011. Evidence of the events of May 2009 may not be considered by you for any other purpose. Specifically, you may not use this evidence to conclude that because the defendant was involved in the 2009 event, he must have committed the crime charged in the indictment. Thank you.

(A. 234-35).

B. Applicable Law

Rule 404(b) allows the admission of uncharged crimes, wrongs, or other acts for purposes other than for proving propensity, “such as proving motive, op-portunity, intent, preparation, plan, knowledge, iden-tity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b). This Court “has adopted an ‘inclusion-ary’ approach to other act evidence under Rule 404(b), which allows such evidence to be admitted for any purpose other than to demonstrate criminal pro-pensity.” United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004); see also United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011); United States v. McCallum, 584 F.3d 471, 474-75 (2d Cir. 2009). To determine whether a district court properly admitted other act evidence, this Court considers “whether (1) it was offered for a proper purpose; (2) it was rele-vant 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 lim-

19 iting instruction to the jury if so requested by the de-fendant.” United States v. LaFlam, 369 F.3d at 156; accord United States v. Curley, 639 F.3d at 56-57.

Rule 403 of the Federal Rules of Evidence author-izes the exclusion of relevant evidence only if its “probative value is substantially outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. All evidence of guilt is, of course, prejudi-cial, in the sense of disadvantaging the defense, but that is not the same as being “unfairly” prejudicial. Costantino v. Herzog, 203 F.3d 164, 174 (2d Cir. 2000) (ABecause virtually all evidence is prejudicial to one party or another, to justify exclusion under Rule 403 the prejudice must be unfair.”). Evidence that is nei-ther “more sensational” nor “more disturbing” than the charged crimes will not be deemed unfairly prej-udicial. United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990); United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000); see also United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006).

This Court “review[s] the district court’s determi-nation of admissibility under Rule 404(b) only for abuse of discretion.” United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012) (citing United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006)). A district court has “broad discretion” over the admission of evidence. United States v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006). Consequently, its evidentiary rulings will be reversed “only when the court has acted arbitrarily or irrationally.” Id. (internal quotation marks omitted).

20 This deferential standard applies with particular force to a district judge’s balancing of probative value against the dangers of unfair prejudice. See, e.g., United States v. Mercado, 573 F.3d 138, 142 (2d Cir. 2009); United States v. Quinones, 511 F.3d 289, 310 (2d Cir. 2007). The district court, after all, “sees the witnesses, the parties, the jurors, and the attorneys, and is thus in a superior position to evaluate the like-ly impact of the evidence.” United States v. Quinones, 511 F.3d at 310 (internal quotation marks and cita-tion omitted). Moreover, courts “reviewing a chal-lenge to a Rule 403 balancing . . . must look at the ev-idence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” United States v. Rubin, 37 F.3d 49, 53 (2d Cir. 1994) (internal quotation marks omitted).

Even when evidence is improperly admitted at trial, that error is subject to harmless error analysis, under which “[r]eversal is necessary only if the error had a substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Dukagjini, 326 F.3d 45, 61-62 (2d Cir. 2003).

C. Discussion

The facts of the Car Stop were highly probative both as to the identity of the heroin supplier who drove the Tahoe to the Metro Mall on January 28, 2011 and to the defendant’s knowledge of the con-tents of the car battery delivered that night and his intent to enter into the drug transaction, all of which the defendant put in issue at the trial. Moreover, Ortiz has identified no unfair prejudice from the Car

21 Stop evidence, and Judge Cote gave an appropriate limiting instruction to the jury. Accordingly, Judge Cote did not abuse her substantial discretion in ad-mitting the Car Stop evidence against Ortiz.

1. The Car Stop Was Properly Admitted to Show Ortiz’s Knowledge and Intent

As a threshold matter, while not an issue raised by Ortiz on this appeal, Ortiz’s knowledge and intent were relevant because Ortiz never unequivocally con-ceded these elements of the offense at trial. See, e.g., United States v. Colon, 880 F.2d 650, 656-57 (2d Cir.1989); see also United States v. Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) (holding that when the de-fendant “disavows awareness that a crime was being perpetrated” and the government bears the burden of proving knowledge “as an element of the crime, knowledge is properly put in issue”). Indeed, Ortiz not only did not concede knowledge or intent, but he affirmatively raised the knowledge issue during his summation: “They [the Government] ha[s] to prove to you beyond a reasonable doubt . . . that Miguel Ortiz knew what was in that battery, if he actually had the battery . . .” (A. 343).

Four important similarities between the Car Stop evidence and the evidence at trial made it significant-ly more likely that Ortiz was not merely an unwitting deliveryman bringing a car battery to the Metro Mall. First, the Car Stop evidence established that by his own admission, Ortiz had, on six prior occasions, pre-viously worked in the drug business. (A. 226). Second, Ortiz’s role when he worked in the drug business was

22 that of a deliveryman for narcotics proceeds. Third, on both occasions, Ortiz used a vehicle registered to his friend Kenny Vasquez. Finally, in both instances, the item being transported by Ortiz was concealed in some fashion: during the Car Stop drug money was inside of a suitcase, then inside another bag wrapped in cellophane, and in the case on trial the heroin was secreted inside of a car battery. (A. 151, 170, 225, GX 1, 53A-G, 204). As Judge Cote found, these four points of similarity provided ample support for ad-mitting the Car Stop testimony. (A. 46-50).

This analysis comports with this Court’s prece-dents in this area. Where a defendant’s knowledge and intent to distribute or possess with intent to dis-tribute narcotics are at issue, this Court has held that the Government is permitted to introduce evi-dence of the defendant’s prior narcotics activity. See United States v. Arango Correa, 851 F.2d 54, 60 (2d Cir. 1988) (“To meet [the defendant’s] defense that he was merely on hand to assist [a co-defendant] in re-ceiving a shipment of paper and that he had no knowledge of the true nature of the shipment, the government’s offer of proof that [the defendant] was familiar with narcotics transactions was clearly rele-vant and probative.”); United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (af-firming admission of 404(b) evidence of defendant’s prior attempt to import cocaine into the United States to rebut defendant’s argument that he was not involved in charged cocaine importations); United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (“Where . . . defendant does not deny that he was pre-sent during a narcotics transaction but simply denies

23 wrongdoing, evidence of other arguably similar nar-cotics involvement may . . . be admitted to show knowledge.”).

2. The 2009 Car Stop Was Properly Admitted on the Issue of Identity

One of the main thrusts of Ortiz’s defense at trial focused on identity, and whether or not he was the person who delivered the heroin at the Metro Mall. (See, e.g., A. 70) (defense opening asserting that “[w]hat you’re not going to hear, what you’re not go-ing to see, is anyone who can conclusively say they saw Miguel Ortiz at the Metro Mall parking lot in Queens on the night of January 28, 2011”); (A. 319) (defense summation arguing that “you are going to find reasonable doubt about whether or not Miguel Ortiz was involved in this incident at all.”).

For this reason, the evidence of the Car Stop was highly probative. With respect to the admissibility of prior acts evidence under Rule 404(b) to prove identi-ty, the touchstone is simply relevance. See, e.g., Unit-ed States v. Tice, 133 F.3d 908, 908 (2d Cir. 1998) (“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. The prior conviction, therefore, was admissible under Rule 404(b) to establish identity.”); United States v. Gubelman, 571 F.2d 1252, 1255 (2d Cir. 1978) (“Thus, we find that the question of identity was a real one. The similar acts evidence was relevant to that is-sue”); id. at 1255 (rejecting the proposition “that only

24 unique signature crimes are admissible under the ru-bric of identity”); United States v. Speed, 272 Fed. Appx. 88, 91-92 (2d Cir. 2008) (affirming district court’s admission of evidence about defendant’s prior robbery conviction pursuant to Rule 404(b) to prove identity as “[t]he evidence disclosed that the 1986 robbery shared certain distinctive methods with the charged crimes, including using a ski mask, wearing dark clothes and gloves, and planning to steal the vic-tim’s vehicle for the getaway.”); United States v. Di Geronimo, 598 F.2d 746, 753-754 (2d Cir. N.Y. 1979) (affirming admission of Rule 404(b) evidence because “[t]he prior hijacking also occurred at Kennedy Air-port and was committed in a similar fashion” and “[t]he selling of stolen merchandise occurred in the same bar where [the defendant] allegedly sold the stolen sweaters.”). See also Dowling v. United States, 493 U.S. 342, 355 (1990) (evidence of defendant’s pri-or robbery admitted under Rule 404(b) where on both occasions he wore a ski mask and carried a small pis-tol).

Ortiz primarily complains that the Car Stop was not sufficiently similar to the charged conduct for admission under Rule 404(b). But Ortiz’s use in both instances of a car registered to his friend Vasquez to transport narcotics and narcotics proceeds that have been concealed in some fashion well exceeds the simi-larities that have been regularly deemed sufficient to permit Rule 404(b) evidence to prove identity. See, e.g., Dowling v. United States, 493 U.S. at 355 (ski mask and small pistol in robbery case); United States v. Tice, 133 F.3d at 908 (marijuana plants grown in same location); United States v. Di Geronimo, 598

25 F.2d at 753-754 (2d Cir. 1979) (crimes occurred in same locations).

None of Ortiz’s other assertions to the contrary has merit. First, Ortiz seems to mistake the nature of the identity evidence; it is not an eyewitness identifi-cation issue (see Br. 32-33), but rather relates to the significant similarities between the Car Stop and the charged crime—including that both instances in-volved: (1) the use of cars registered to Ortiz’s friend Kenny Vasquez; (2) the transportation and delivery of narcotics or narcotics proceeds; and (3) the secretion of those narcotics or narcotics proceeds in a closed re-ceptacle. The circumstances of the Car Stop—and Ortiz’s statement thereafter that the cash was “prob-ably” derived from the sale of drugs and that he had previously transported money on approximately five other occasions—are directly relevant to whether Ortiz was the person who delivered the heroin in Kenny Vasquez’s Tahoe on January 28, 2011.6

————— 6 The two cases cited by Ortiz are entirely inap-

posite. In United States v. Lumpkin, 192 F.3d 280, 287 (2d Cir. 1999), this Court held that an officer’s testimony that “he often saw [the defendant] in the area where the relevant drug transactions occurred” was not evidence of a crime or bad act and therefore fell outside the scope of Rule 404(b). In United States v. Scott, 677 F.3d at 82, this Court held that testimo-ny of police officers that they had numerous and sometimes lengthy conversations with the defendant before his arrest was improper under Rule 404(b) be-cause the defendant had taken the issue of identity

26

For these reasons, the Car Stop was properly ad-mitted under Rule 404(b) to prove identity—i.e., that it was Ortiz who drove the Tahoe with a car battery containing heroin to the Metro Mall and transferred that heroin to a co-conspirator.

3. The District Court Correctly Determined That the Probative Value of the Rule 404(b) Evidence Was Not Substantially Outweighed by a Danger of Unfair Prejudice

Contrary to Ortiz’s assertions (Br. 37), Judge Cote carefully considered, on the record, whether allowing evidence of the Car Stop would create a danger of un-fair prejudice, and correctly rejected that argument. (A. 39-40) (“I don=t find that the defendant has identi-

————— out of the case by admitting from the outset that it was the defendant “who was engaged in the behavior that led police to believe they had observed a drug sale.” Because “nothing in the defense case, from opening to close, even remotely raised the issue of identity,” the defendant’s prior contacts with the po-lice were not relevant to the issue of identity. Id. at 83. Scott, then, is an entirely different case. Here, there was no law enforcement witness at trial who identified Ortiz. Evidence of the Car Stop, therefore, was properly not limited to “identification” as it was the circumstances of that encounter, such as the car driven, the contents of the car, and Ortiz’s explana-tion, that were important to show the similarities be-tween the two events.

27 fied any unfair prejudice. Of course, [identity] infor-mation against the defendant is prejudicial. That’s what a trial is about. So Rule 403 speaks to unfair prejudice. It is not inflammatory or unfairly prejudi-cial in any other way I can think of to introduce the 2009 evidence.”). Judge Cote’s analysis was correct. Evidence is unfairly prejudicial “only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). It is well-established in the Rule 404(b) context that “[p]robative value is not outweighed by prejudicial effect when the prior similar bad acts do not involve conduct more inflammatory than the charged crime or . . . conduct any more sensational or disturbing than the crimes charged.” United States v. Camara, 485 Fed. Appx. 457, 460 (2d Cir. 2012) (internal cita-tions and quotation marks omitted); United States v. Roldan-Zapata, 916 F.2d at 804. The “fact that evi-dence may be ‘damning’ does not render it inadmissi-ble.” Id. (citing United States v. Cirillo, 468 F.2d 1233, 1240 (2d Cir. 1972)).

Evidence relating to the Car Stop was no more sensational than the evidence of the charged crime presented at trial. The Rule 404(b) evidence related to Ortiz’s prior involvement in transporting drug pro-ceeds, while the trial involved the transportation of six kilograms of heroin. Moreover, the value of the heroin Ortiz was charged with transporting was far greater than the $100,000 he had transported when he was stopped in 2009. (A. 73-74) (value of one kilo-gram of heroin is approximately $60,000). In these

28 circumstances, the admission of the Rule 404(b) evi-dence did not elicit an emotional or otherwise inap-propriate response from the jury. See United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (admitting evidence of prior narcotics transactions in narcotics case where other act evidence “did not involve con-duct any more sensational or disturbing than the crimes with which [the appellants were] charged”). In addition, as described above, Judge Cote gave a clear and emphatic limiting instruction to the jury, which instruction is not challenged on appeal. (A. 234-35). For these reasons, evidence of the Car Stop was properly admitted under Rule 404(b). See LaFlam, 369 F.3d at 156.

Finally, to the extent any error existed here, it was entirely harmless in light of the other over-whelming evidence of Ortiz’s guilt. See United States v. Dukagjini, 326 F.3d at 61-62. The uncontested evi-dence showed that only two individuals—Ortiz and Kenny Vasquez—had access to the Tahoe used to de-liver six kilograms of heroin to the Metro Mall on January 28, 2011, and that Vasquez’s physical char-acteristics were entirely inconsistent with surveil-lance evidence of the deliveryman. Moreover, Ortiz’s presence at the Metro Mall at the time of the transac-tion and his presence in the vicinity of Vasquez’s res-idence just before and afterwards—which the jury could reasonably have inferred was to borrow and then return Vasquez’s Tahoe—were established through cell site data. Lay opinion testimony demon-strated that it was Ortiz’s voice on the intercepted calls over the Drug Phone arranging the heroin transaction. And, the recipient of the heroin, Omar

29 Garcia, an admitted drug dealer, identified Ortiz in court as the person who delivered the heroin to him at the Metro Mall on January 28, 2011. From all of this, Judge Cote correctly deemed the evidence in this case “overwhelming.” (A. 443, 455).

POINT II

The District Court Properly Admitted Lay Opinion Voice Identification Evidence

Ortiz complains that the Government’s voice iden-tification testimony improperly comprised expert tes-timony and argues that—while he failed to object to such testimony—it should not have been admitted. (Br. 40-47). This argument should be rejected.

A. Relevant Facts

Prior to trial, the Government made a motion in limine to elicit lay opinion testimony on the issue of whether the defendant’s voice appeared on certain recordings. (Add. 15-20). Specifically, in its motion the Government described the testimony it intended to elicit and the witness who would be providing the testimony, arguing that it should be permitted to provide this testimony to the jury because it was permissible under relevant case law and would be helpful to the jury, particularly because the witness was a Spanish interpreter and the relevant calls were in Spanish. (Add. 15-20).

At a pretrial conference to discuss, among other things, the Government’s motion, defense counsel in-

30 dicated that he had no objection to the testimony de-scribed. (A. 17).

At trial, as had been previewed by the Govern-ment, Elizabeth Caruso testified that based on her review of the known samples of Ortiz’s voice and her comparison of the known samples to the calls on the Drug Phone, she believed that the unknown male whose voice appeared on the Drug Phone calls was Ortiz. (A. 196, 197, 216). During her testimony, Ms. Caruso made clear that her opinion was based on her personal observations, because she had listened sev-eral times to the intercepted calls, the voice exemplar provided by Ortiz, and the voice on the ruse call to Ortiz’s Personal Phone. (A. 217).

Ms. Caruso was never offered as an expert witness to the jury, was not treated as an expert witness by the parties or the District Court, and in fact testified that she had never testified as an expert in the field of voice identification. (A. 217). Ms. Caruso was asked certain questions—without objection—concerning her qualifications as a Spanish language interpreter (A. 184-87) and the methods she used in becoming familiar with the various recordings that served as the basis for her testimony (A. 187-93). In order to explain some of the characteristics of the voice she identified as Ortiz’s, Ms. Caruso also described some terms used to describe different features voices can have, such as pitch, tone, and cadence (A. 196-97).

B. Applicable Law

“Under Rule 701, a lay witness’ testimony ‘in the form of opinions or inferences is limited to those opin-

31 ions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the de-termination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.’ ” United States v. Yan-notti, 541 F.3d 112, 125 (2d Cir. 2008) (quoting Fed. R. Evid. 701).

“A witness’s specialized knowledge, or the fact that he was chosen to carry out an investigation be-cause of this knowledge, does not render his testimo-ny ‘expert’ as long as it was based on his ‘investiga-tion and reflected his investigatory findings and con-clusions, and was not rooted exclusively in his exper-tise . . . .’ ” United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007) (quoting Bank of China v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004)) (concluding the dis-trict court did not abuse its discretion in allowing a lay witness to testify about an organization’s fraudu-lent financial conduct where that witness made first-hand observations and was well aware of the or-ganization’s financial misstatements); see also Bank of China v. NBM LLC, 359 F.3d at 181-82 (“The fact that Huang has specialized knowledge, or that he carried out the investigation because of that knowledge, does not preclude him from testifying pursuant to Rule 701, so long as the testimony was based on the investigation and reflected his investi-gatory findings and conclusions, and was not rooted exclusively in his expertise in international bank-ing.”); M.O.C.H.A. Soc’y, Inc. v. City of Buffalo, 689 F.3d 263, 279 (2d Cir. 2012) (following Bank of Chi-na); United States v. Mavashev, 455 Fed. Appx. 107,

32 113 (2d Cir. 2012) (affirming admissibility of lay opin-ion testimony regarding mortgage: “While [the agent] occasionally defined certain technical terms, such as ‘flip deal’ and ‘straw buyer,’ he only defined these terms in order to describe specific facts in this case.”).

“If, however, the witness’s testimony was ‘not a product of his investigation, but rather reflected [his] specialized knowledge,’ then it [is] impermissible ex-pert testimony.” United States v. Rigas, 490 F.3d at 224 (quoting Bank of China, 359 F.3d at 182); see Fed. R. Evid. 701, advisory committee’s note to 2000 amend. (noting that under Rule 701 “lay testimony results from a process of reasoning familiar in every-day life, while expert testimony results from a pro-cess of reasoning which can be mastered only by spe-cialists in the field.”) (internal quotation marks and citation omitted).

Specifically, lay opinion testimony regarding voice identification is admissible pursuant to Federal Rule of Evidence 901(b)(5), which provides that identifica-tion of a voice as that of a particular person may properly be admitted through testimony of “[a]n opin-ion identifying a person’s voice—whether heard firsthand or through mechanical or electronic trans-mission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5).

This Court has repeatedly upheld the admissibil-ity of lay opinion testimony regarding voice identifi-cation. See, e.g., United States v. Rommy, 506 F.3d 108, 138 (2d Cir. 2007) (affirming admissibility of lay opinion testimony identifying a voice under Rule

33 901(b)(5)); United States v. Cambindo Valencia, 609 F.2d 603, 640 (2d Cir. 1979) (witness properly identi-fied defendant based on listening to voice exemplar); United States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir. 1976) (“We have on several occasions held that voice identification may be adequate al-though the witness and the speaker have never per-sonally met”); United States v. Chiarizio, 525 F.2d 289, 296 (2d Cir. 1975) (affirming trial court’s admis-sion of agent’s testimony identifying voice on a tape as the defendant’s, holding that “expert qualification is not required for voice identification”).

Where, as here, a defendant fails to raise his claim of procedural error in the district court, this Court will review only for plain error. United States v. Villa-fuerte, 502 F.3d 204, 208 (2d Cir. 2007); United States v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). To es-tablish plain error, a defendant must establish (1) er-ror (2) that is plain and (3) that affects substantial rights. United States v. Villafuerte, 502 F.3d at 209. Even if the error meets these initial requirements, this Court then considers whether to exercise its dis-cretion to correct it, “which is appropriate only if the error seriously affected the fairness, integrity, or pub-lic reputation of the judicial proceedings.’ ” Id. (quot-ing United States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002)). The Supreme Court has cautioned that rever-sal for plain error should “be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 163 n.14 (1982).

34 C. Discussion

Ms. Caruso’s testimony was properly admitted and considered by the jury, as it satisfied all of the Rule 701 requirements. First, Ms. Caruso’s testimony was “rationally based on [her own] perception,” Fed. R. Evid. 701(a), because, as she explained, it was based entirely upon having listened several times to the intercepted calls, the voice exemplar, and the ruse call. (A. 188, 191-92, 195-96). While Ms. Caruso used certain terms like “tone,” “pitch” and “cadence,” it is clear that those terms were used “in order to de-scribe specific facts in this case,” see United States v. Mavashev, 455 Fed. Appx. at 113, in other words, as a way to describe to the jury how she reached her con-clusion based on those personal observations. Simi-larly, when Ms. Caruso indicated that certain charac-teristics of Ortiz’s speech—like substituting an “a” sound for an “o”—were not common errors, she again was describing to the jury how she determined that the voices in the different samples were the same. (A. 212).

Second, identification of the voice on the inter-cepted calls was clearly “a fact in issue” and Ms. Ca-ruso’s testimony was “helpful . . . to determining” the identity of the speaker on those calls. Fed. R. Evid. 701(b). Finally, as demonstrated by Ms. Caruso’s de-tailed explanation of the bases for her opinion—the multiple similarities in the voice samples that were presented to the jury, through audio clips—Ms. Caru-so’s testimony was “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c). As such, Ms. Caruso’s

35 testimony satisfied each and every one of the Rule 701 requirements for opinion testimony by lay wit-nesses, and was entirely proper.

Contrary to Ortiz’s claims, the fact that Ms. Caru-so’s training and experience with the Spanish lan-guage were elicited does not automatically mean she was qualified or testified as an expert witness. Again, as this Court has repeatedly held, “[a] witness’s spe-cialized knowledge, or the fact that he was chosen to carry out an investigation because of this knowledge, does not render his testimony ‘expert’ as long as it was based on his ‘investigation and reflected his in-vestigatory findings and conclusions, and was not rooted exclusively in his expertise . . . .’ ” Rigas, 490 F.3d at 224; Bank of China, 359 F.3d at 181; Ma-vashev, 455 Fed. Appx. at 113. Ms. Caruso’s familiari-ty with the Spanish language was certainly relevant and helpful insofar as it enabled her more easily to analyze the voices in the recordings. A non-Spanish speaker likely would be less able to immediately identify similarities or differences in the voices of Spanish speakers because he or she would not under-stand what was being said. But the fact remains that Ms. Caruso did not offer an opinion about the sub-stance of what was being said—that was covered by stipulations between the parties. (GX 205, 208, 209). Ms. Caruso testified and offered an opinion about whose voice was heard on the recordings, a topic ex-plicitly reserved by operation of Rule 901(b)(5) and the case law interpreting it for lay witness testimony of the exact kind elicited here. Ms. Caruso’s Spanish language background and knowledge merely provided the basis for her personal investigation, see, e.g., Ri-

36 gas, 490 F.3d at 224, which she conducted by listen-ing several times to the voices on the recordings and identifying similarities that were then presented for the jury’s own independent consideration.

Indeed, this Court has explicitly approved pre-senting a Spanish-language interpreter as a lay wit-ness to provide voice identification testimony. See United States v. Garcia, 413 F.3d 201, 207 n.3 (2d Cir. 2005). In Garcia, a “monitoring interpreter” who had listened to both an intercepted call regarding a drug transaction and a voice exemplar provided by the defendant provided lay opinion testimony that it was the defendant’s voice on the intercepted call. This Court expressly approved the interpreter’s lay opin-ion voice identification testimony, noting that “the prosecution did not present the interpreter as an ex-pert in voice identification, but as a lay witness who had acquired considerable familiarity with the inter-cepted voices from her work monitoring the wiretap.” United States v. Garcia, 413 F.3d at 207 n.3 (citing Fed. R. Evid. 701). In so holding, this Court consid-ered the fact that “the prosecution invited the jury to make its own comparison of Garcia’s voice exemplar with the voice it contended was his on the intercepted tapes.” Garcia, 413 F.3d at 207.

Other courts likewise have rejected precisely the argument made by Ortiz. For example, in United States v. Mendiola, 707 F.3d 735, 739-740 (7th Cir. 2013), the Seventh Circuit expressly dismissed the defendant’s argument that a “DEA linguist” who pro-vided lay opinion voice identification testimony was “a wolf in sheep’s clothing—or rather an expert in a

37 lay witness’s clothing . . .” The Seventh Circuit noted that “[e]xperts in other areas of law enforcement . . . are routinely used as lay voice identification witness-es, as they are the ones who have often heard the wiretap, or had an interview with a suspect.” United States v. Mendiola, 707 F.3d at 739-740. The Mendio-la court also noted that “[n]ot surprisingly, prosecu-tors frequently enlist language interpreters and translators to identify voices in court as they are the ones who have listened intently to the recorded or overheard conversations.” Id. at 739. See, e.g., Garcia, 413 F.3d at 207 n.3 (“monitoring interpreter” identi-fied voice); see also United States v. Ceballos, 385 F.3d 1120, 1124 (7th Cir. 2004).7

Moreover, contrary to Ortiz’s assertion (Br. 47), no special instruction to the jury was needed to address how the jury should treat Ms. Caruso’s testimony be-cause it was not remotely presented as expert testi-mony. Indeed, not only was Ms. Caruso’s testimony not based on scientific, technical, or specialized knowledge, instead involving readily perceived idio-syncratic voice patterns, but these examples of Ortiz’s voice patterns were, during the course of Ms. Caru-so’s testimony, actually presented to the jury by Ms. —————

7 The sole case cited by Ortiz, United States v. Cambindo Valencia, 609 F.2d at 640, does not sup-port his position. In Cambindo Valencia—where, un-like the present case, the defendant had preserved an objection—this Court held that the district court did not abuse its discretion in qualifying an interpreter as an expert to provide a voice identification. Id.

38 Caruso so that the jurors could form their own con-clusions as the finders of fact. And the jurors demon-strated that they were aware of their proper role in this regard; during the deliberations, the jury specifi-cally requested to listen to the audio recordings of the Spanish-language intercepted calls no fewer than three times, showing that the jurors well understood that they alone were charged with determining the identity of the voice on the intercepted calls. (A. 391, 398, 407, Court Exhibits 5, 7, 9).

Accordingly, Ms. Caruso’s lay opinion testimony regarding the voice on the intercepted calls was con-sistent with Rule 701 and was entirely proper. Ortiz has failed to establish any error with respect to Ms. Caruso’s testimony, let alone plain error—i.e., “error seriously affect[ing] the ‘fairness, integrity, or public reputation of the judicial proceedings.’ ” Villafuerte, 502 F.3d at 209.

POINT III

The District Court Properly Exercised Its Broad Discretion Not to Dismiss the Jury

Ortiz assigns error to Judge Cote’s Friday after-noon charge to the jury that they should continue to deliberate on Monday. Ortiz argues that given the events to that point in the deliberations, no further charge should have been given and a mistrial should have been declared, and claims that the fact that the jury disclosed that they were divided 11-1 for convic-tion renders the District Court’s charge inherently coercive. (Br. 48-51). Ortiz’s argument fails and should be rejected.

39 A. Relevant Facts

Jury deliberations began at approximately 12:35 p.m. on Wednesday, May 2, 2012 (A. 389) and contin-ued through the end of that day and into the after-noon of the next day. During that time, the jury sent multiple notes asking to review some of the evidence and asking for the answer to a legal question. (A. 391-413). At about 2:25 p.m. on May 3, less than two hours after the last transcript pages were sent in to them in response to a jury note (see A. 413), the jury sent out a note stating: “[w]e are at an impasse and cannot come to a unanimous decision on a verdict.” (A. 414). After consulting with counsel and without objection, Judge Cote provided the jury with the fol-lowing instruction:

We are all aware that you have been de-liberating carefully on this case and you have sent us a stream of notes and asked to see some of the testimony and listened to recordings and I know that you have a number of the exhibits. But, nonetheless, I am going to ask you to re-turn and continue your deliberations. And let me say a few things about this. This case is important to the govern-ment and it is important to the defend-ant. It is important to both of them, that if at all possible you reach a unanimous verdict. They have no reason to believe that any other jury would be in a better position to do that than you are right

40

now. And at this point I would like you to turn to page 39 of your charges. And I want to read the passage that begins with the last paragraph on that page. “As you deliberate, please listen to the opinions of your fellow jurors, and ask for an opportunity to express your own views. Every juror should be heard. No one juror should hold center stage in the jury room and no one juror should con-trol or monopolize the deliberations. If, after listening to your fellow jurors and if, after stating your own view, you be-come convinced that your view is wrong, do not hesitate because of stubbornness or pride to change your view. On the other hand’—and I want to emphasize this—’do not surrender your honest con-victions and beliefs solely because of the opinions of your fellow jurors or because you are outnumbered. Your final vote must reflect your conscientious belief as to how the issues should be decided.” Now, I know that you have been deliber-ating. I know you are trying to be care-ful, good, responsible jurors, but I ask you to return to the jury room and con-tinue your deliberations with these comments in mind. Thank you.

(A. 416-17).

41

At approximately 4:15 p.m., the jury sent out an-other note asking to be dismissed early for the day and stating “[t]he issues of impasse are being consid-ered and a request has been made to ‘sleep on it.’ We will reconvene tomorrow, Friday morning to continue your deliberations.” (A 417). After consulting with counsel, and without objection, Judge Cote dismissed the jury for the day. (A. 418).

The following day, Friday, May 4, 2013, the jury deliberated through the morning, then sent a note between 12:45 p.m. and 2:00 p.m. asking for guidance on the law. (See A. 421). Judge Cote consulted with counsel concerning the note; counsel had no objection to the District Court’s proposed response to the jury. (A. 421-30). After receiving Judge Cote’s instruction on the law, at about 2:27 p.m., the jury returned and continued to deliberate until late Friday afternoon, at about 4:05 p.m., at which time the jury sent the fol-lowing note:

Judge Cote, I am sorry to inform you that, even after additional deliberations, we have reached an irreconcilable im-passe. We do not come to this conclusion lightly and do not believe that additional time or deliberation will change the sit-uation. One of the jurors has difficulty with the fundamental facts of the case; and, as a consequence, we cannot come to a unan-imous verdict. The juror requested last night to sleep on it, but even after a full day of deliberation today, there is no

42

movement on the juror’s position regard-ing the government’s proof of the de-fendant’s involvement in the conspiracy beyond a reasonable doubt.

(A. 430-31). Defense counsel then requested that Judge Cote

declare a mistrial arguing: “I don’t see how giving them more time, giving them the weekend, or giving them whatever time is going to resolve their differ-ence in light of the language that they used in the note.” (A. 431-32). The Government, noting that the jury had deliberated all day and had just recently, within the last two hours, asked for legal instruction on a fairly complicated issue, asked that the jury re-turn on Monday to continue deliberating. (A. 432). Judge Cote decided to ask the jury to return on Mon-day, and provided the following instruction to the ju-ry:

We are all very appreciative of how hard you have been working. It is after 4:00 on Friday, and I am going to dismiss you for the day, but I am going to ask you to return on Monday at 9:30. I want to un-derscore again that there is no reason to believe that this jury—well, let me put it this way. There is no reason to believe that trying this case a second time will result in any material change with re-spect to the record to be presented to a jury, so it is our hope that you can reach a unanimous verdict, understanding of

43

course that no one should give up a con-scientiously held belief. So I am hoping that the weekend’s break, maybe now having the weekend, coming Monday morning at 9:30 with fresh energy, hopefully a couple good nights’ rest will permit you to continue your deliberations and reach a verdict in this case. This is, I know, probably diffi-cult news for you because you have been working hard for these days, indeed, all this week. But that is my request of you. Thank you.

(A. 433-34). The jury returned in the morning on Monday, May

7, 2012 to continue its deliberations, submitted a note asking one legal question which was addressed by the District Court (A. 437-44), and, at approximately 11:05 a.m., the jury returned its guilty verdict against Ortiz (A. 441).

B. Applicable Law

A district court has broad discretion in determin-ing the appropriate response when a jury advises that it is unable to reach a verdict, and its decision whether to grant or deny a mistrial based on the ju-ry’s stated inability to reach agreement is accorded great deference. See Arizona v. Washington, 434 U.S. 497, 510 (1978). “[T]he rationale for this deference in the ‘hung’ jury situation is that the trial court is in the best position to assess all the factors which must

44 be considered in making a necessarily discretionary determination whether the jury will be able to reach verdict if it continues to deliberate.” Arizona v. Wash-ington, 434 U.S. at 510 n.28; see United States v. Win-ley, 638 F.2d 560 (2d Cir. 1981). A district court’s de-cision to deny a mistrial based on reported deadlock—and, instead, to deliver supplemental instructions designed to encourage continued deliberations—will be upheld unless it is determined that the court abused its discretion in so deciding. See United States v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002); United States v. Gigante, 729 F.2d 78, 82 (2d Cir. 1984).

This Court has refused to “draw fine lines” that would “circumscribe the trial court’s discretion” in de-termining when and under what circumstances a supplemental charge is appropriate, United States v. Hynes, 424 F.2d 754, 758 (2d Cir. 1970), and has made clear that a district judge may properly require a jury to continue deliberations even when the jury declares itself deadlocked. See, e.g., Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006); United States v. Sanders, 232 Fed. Appx. 42 (2d Cir. 2007); United States v. Crispo, 306 F.3d at 76-77; Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). Indeed, “a jury’s statement that it currently is deadlocked is, by itself, an insuffi-cient ground for declaring a mistrial.” United States v. Sommerstedt, 752 F.2d 1494, 1497 (9th Cir.), amended, 760 F.2d 999 (9th Cir. 1995).

“[T]his circuit has consistently reaffirmed its ap-proval of the supplementary charge to encourage a verdict in the face of an apparent deadlock.” United States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991)

45 (quotations omitted) (collecting cases). “The propriety of such a so-called Allen-type charge depends on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason con-scientiously held doubts.” United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (citing United States v. Green, 523 F.2d 229, 236 (2d Cir. 1975)); see Crispo, 306 F.3d at 77.

An assessment of whether or not a supplemental instruction (or instructions) has resulted in improper coercion requires an individualized determination based on all of the facts and circumstances of a given case. See Spears v. Greiner, 459 F.3d at 205 (citing Lowenfield v. Phelps, 484 U.S. 231, 237-38 (1988)). The Supreme Court and this Court have considered a variety of supplementary charges designed to encour-age jurors to reach a unanimous verdict in the face of apparent deadlock, including the “traditional” Allen charge, a “modified” Allen charge, and a charge fall-ing into neither of those categories which merely asks the jury to continue its deliberations. The first of these was first approved by the Supreme Court in Al-len v. United States, 164 U.S. 492, 501 (1896). The instruction upheld in Allen encouraged jurors in the minority to reconsider their views and stated in par-ticular, that:

it [was the jurors’] duty to decide the case if they could conscientiously do so; [that they] should listen, with a disposi-tion to be convinced, to each other’s ar-guments; that, if much the larger num-ber were for conviction, a dissenting ju-

46

ror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the mi-nority ought to ask themselves whether they might not reasonably doubt the cor-rectness of a judgement which was not concurred in by the majority.

Id. In the years since Allen was decided, many courts,

including the Supreme Court and this Court, have reaffirmed the propriety of supplemental instructions containing language similar to that given in Allen. See, e.g., Lowenfield v. Phelps, 484 U.S. at 237-38; Crispo, 306 F.3d at 77; United States v. Hynes, 424 F.2d at 757-58 (2d Cir. 1970) (collecting cases; “we are satisfied that the so-called ‘Allen charge’ does not unconstitutionally deprive a defendant of his right to a unanimous verdict rendered upon the conscientious consideration of twelve impartial jurors”).

While this “traditional” Allen charge has long been approved, courts have observed that a portion of the charge may pose a risk of improper coercion, par-ticularly the language that could be construed as pit-ting the majority of jurors against the minority, ask-ing the minority to reconsider its views. See Low-enfield, 484 U.S. at 237-38 (reasoning that a charge that, unlike the “ ‘traditional Allen charge,’ does not speak specifically to the minority jurors” is less coer-cive). Thus, this Court has repeatedly approved of the

47 so-called “modified” Allen charge, which treats the majority and the minority equally and advises each to listen to the views of the other, while exhorting jurors not to yield their conscientious convictions. United States v. Sanders, 232 Fed. Appx. at 43 (approving supplemental charge to a deadlocked jury character-ized “as a modified Allen charge. . . because, although it directed the jurors to attempt to reach agreement, it did not ask the jurors holding the minority position to reconsider their views.”); see also United States v. Hemmings, 482 Fed. Appx. 640, 644 (2d Cir. 2012); Spears, 459 F.3d at 205 (“In more recent times, courts have tended to use ‘modified’ Allen charges that do not contrast the majority and minority positions.”). This Court has moreover held that such a charge is also acceptable “when the judge has learned that the jury was deadlocked 11 to 1 in favor of convic-tion. . . .” United States v. Martinez, 446 F.2d 118, 119-20 (2d Cir. 1971); United States v. Robinson, 560 F.2d at 517 (“The fact that the judge knew that there was a lone dissenter does not make the charge coer-cive inasmuch as the nature of the deadlock was dis-closed to the Court voluntarily and without solicita-tion.”); United States v. Jennings, 471 F.2d 1310, 1313-14 (2d Cir. 1973) (affirming “Allen-type” charge where jury voluntarily advised that it stood 11 to 1 for conviction).

This Court has also recognized that supplemental charges directing a jury reportedly deadlocked to con-tinue deliberating may not be Allen charges at all. See, e.g., Spears, 459 F.3d at 204 (noting that “courts have held that a ‘judge’s simple request that the jury continue deliberating . . .’ can not be ‘properly consid-

48 ered an Allen charge’ ”) (quoting United States v. Prosperi, 201 F.3d 1335, 1341 (11th Cir. 2000)); Unit-ed States v. Roman, 870 F.2d 65, 77 (2d Cir. 1989) (characterizing as not a “real Allen charge” district court’s charge which was “merely a clarification of the jurors’ individual responsibilities without an exhorta-tion that they reach a decision”). In Spears, for exam-ple, this Court held that where “the charge did not urge the jurors to listen to the views of other jurors with whom they disagreed or attempt to persuade each other,” but merely to “continue . . . deliberations with a view toward arriving at a verdict if that’s pos-sible,” the charge was inherently non-coercive despite the absence of “specific cautionary language” admon-ishing jurors not to surrender their own conscien-tiously held beliefs. Spears, 459 F.3d at 206.

Moreover, this Court has held that it “does not re-gard a repeated Allen charge as inevitably coercive.” United States v. Ruggiero, 928 F.2d at 1299; United States v. Roman, 870 F.2d at 77 (noting that “even a second charge imploring a decision would not be per se error”); United States v. O’Connor, 580 F.2d 38, 44 (2d Cir. 1978) (“we find no merit to the objection to the giving of two modified Allen charges”); Robinson, 560 F.2d at 517-18 (finding no abuse of discretion in district court’s decision to give a second Allen-type charge and noting that “the fact that the jury deliber-ated for three hours between the Allen-type charges and for more than four hours after the second such charge before reaching its verdict are strong indica-tions that the effect of the charge was minimal”).

49 C. Discussion

The District Court did not abuse its discretion by asking the jury, after it had reportedly reached an impasse for the second time late Friday afternoon, to return on Monday to continue its deliberations.

First, and contrary to Ortiz’s argument, it was well within Judge Cote’s broad discretion to ask the jury to return on Monday to continue deliberations. See Crispo, 306 F.3d at 77; United States v. Gigante, 729 F.2d at 82. While this was the second time the jury had reported that their deliberations had stalled, the jury had, for more than a full day after first re-porting an impasse, continued to deliberate construc-tively—including posing a complex legal question mid-day on Friday. The length of deliberations after Thursday’s modified Allen charge—which included the cautionary language recommended by this Court about not yielding conscientiously held beliefs—demonstrates the lack of any arguable coercive effect from that first charge. See Robinson, 560 F.2d at 517-18 (finding no abuse of discretion in district court’s decision to give a second Allen-type charge in part based upon “the fact that the jury deliberated for three hours between the Allen-type charges . . . [is a] strong indication[ ] that the effect of the charge was minimal”).

Moreover, the jury’s second report of impasse came late on a Friday afternoon, after a full week of trial, and after a somewhat complex question regard-ing the law. Under these circumstances, Judge Cote properly exercised her significant discretion to ask the jury to return Monday to continue its delibera-

50 tions. See, e.g., United States v. Santiago, 126 Fed. Appx. 21, 23 (2d Cir. 2005) (holding that “district courts have broad discretion to determine under what circumstances and how the [Allen-type] charge should be given”).

Second, the request Friday afternoon that the jury return to continue deliberations on Monday was not an Allen-type charge at all, as it contained none of the arguably coercive language encouraging jurors to reconsider their views. Instead, Judge Cote merely told the jury that there was no reason to believe that trying the case a second time would result in a mate-rial change in the record, and asked that the jury continue deliberating Monday after a weekend’s rest. (A. 433-34). As a result, it cannot have been error for the District Court to merely ask the jury to continue its deliberations. See Spears, 459 F.3d at 204; Roman, 870 F.2d at 77.

Even if such a request could somehow be consid-ered an Allen-type charge, however, Judge Cote spe-cifically included the approved cautionary language, noting that “of course [ ] no one should give up a con-scientiously held belief.” (A. 433-34). This cautionary language—while unnecessary given the lack of any coercive element to Judge Cote’s request that the jury return after the weekend—nonetheless further rein-forces its non-coercive nature. See, e.g., Lowenfield, 484 U.S. at 241 (upholding Allen charge containing language that jurors not surrender “honest belief ”); Ruggiero, 928 F.2d at 1299 (upholding Allen-type in-struction where it “included . . . the sort of cautionary language counseling jurors not to surrender any con-

51 scientiously held views that we have usually deemed to negate coercion”). Accordingly, under this Court’s well-settled law, Judge Cote’s Friday afternoon in-struction cannot be deemed an abuse of discretion.

While Ortiz does not expressly argue that part of the Friday afternoon charge’s coerciveness stems from the fact that it was not the first charge given to the jury in response to a deadlock note, this does not change the analysis. As indicated above, this Court has regularly refused to find multiple Allen charges coercive. See, e.g., Roman, 870 F.2d at 77; O=Connor, 580 F.2d at 44; Robinson, 560 F.2d at 517-18. A forti-ori, then, Judge Cote=s request that the jury rest over the weekend and continue deliberating on Monday, complete as it was with cautionary language, was en-tirely appropriate and non-coercive. Ortiz’s assertion to the contrary should be rejected.

52

CONCLUSION

The judgment of conviction should be affirmed.

Dated: New York, New York June 4, 2013

Respectfully submitted,

PREET BHARARA, United States Attorney for the Southern District of New York, Attorney for the United States

of America.

ELISHA J. KOBRE, JENNIFER G. RODGERS,

Assistant United States Attorneys, Of Counsel.

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of Rule 32(a)(7)(B). As measured by the word processing system used to prepare this brief, there are 12,426 words in this brief.

PREET BHARARA, United States Attorney for the Southern District of New York

By: JENNIFER G. RODGERS, Assistant United States Attorney

ADDENDUM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA : 11 Cr. 875 (DLC)

-v.- :

MIGUEL ORTIZ, : Defendant. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

GOVERNMENT’S RESPONSE TO

DEFENDANT’S OMNIBUS MOTION

PREET BHARARA United States Attorney for the Southern District of New York One St. Andrew’s Plaza New York, New York 10007

NIKETH VELAMOOR Assistant United States Attorney -Of Counsel-

Case 1:11-cr-00875-DLC Document 16 Filed 01/27/12 Page 1 of 13

Add. 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA : 11 Cr. 875 (DLC)

-v.- :

MIGUEL ORTIZ, : Defendant. :

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

GOVERNMENT’S RESPONSE TO DEFENDANT’S OMNIBUS MOTION

The United States of America, by its attorney, Preet Bharara, United States Attorney for

the Southern District of New York, Niketh Velamoor, Assistant United States Attorney, of

counsel, respectfully submits this response to the omnibus pretrial motion filed by defendant

Miguel Ortiz (“Ortiz” or “defendant”).

BACKGROUND

The defendant is charged in a one-count Indictment with participating in a conspiracy to

distribute one kilogram and more of heroin, in violation of Title 21, United States Code, Section

846. On or about January 13, 2012, the defendant filed a motion seeking an order directing the

Government: (1) to disclose co-conspirators’ statements and prior bad acts; (2) to comply with its

obligations under Brady v. Maryland; (3) to retain all rough notes taken by law enforcement

officers in the course of the investigation; (4) to provide Jencks Act material to the defendant

prior to trial; (5) not to cross examine the defendant about his prior conviction for criminal

mischief; (6) to disclose any prior bad acts it intends to cross-examine the defendant about or

offer in its direct case, and suppressing any such evidence; (7) to disclose a written summary of

Case 1:11-cr-00875-DLC Document 16 Filed 01/27/12 Page 2 of 13

Add. 2

2

any expert testimony it intends to introduce; and (8) permitting the defendant to make additional

motions based on new information. The Government addresses each of these in turn below.

ARGUMENT

I. Defendant’s Motion to Compel the Government to File a Bill of Particulars and

to Disclose Co-Conspirator Statements and Other Crimes By Co-Conspirators

A bill of particulars is required only where the indictment is so general that it does not

advise the defendant of the specific acts of which he is accused. United States v. Torres, 901

F.2d 205, 234 (2d Cir. 1990) (citations omitted); United States v. Gibson, 2001 WL 460935, at

*3 (S.D.N.Y. May 1, 2001) (“[A] bill of particulars is not a matter of right.”). A motion for a bill

of particulars should be granted only where necessary (1) to inform the accused of the charge

against him with sufficient precision to enable him to prepare his defense and avoid surprise; and

(2) to enable the accused to interpose a plea of double jeopardy should he be prosecuted a second

time for the same offense. See Wong Tai v. United States, 273 U.S. 77, 82 (1927); United States

v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). In addition, if the information sought by a

defendant is provided in the indictment or through some other means, a bill of particulars is not

necessary. See Bortnovsky, 820 F.2d at 574.

“It is not enough that the information would be useful to the defendant; if the defendant

has been given adequate notice of the charges against him, the government is not required to

disclose additional details about its case.” United States v. Payden, 613 F. Supp. 800, 816

(S.D.N.Y. 1985). Further, supplying evidentiary detail is not the function of the bill of

particulars. See Torres, 901 F.2d at 234. “[A] bill of particulars is not a general investigative

tool, a discovery device, or a means to compel the government to disclose evidence or witnesses

to be offered prior to trial.” Gibson, 2001 WL 460935, at *6; United States v. Strawberry, 892 F.

Supp. 519, 526 (S.D.N.Y. 1995). It is not the function of a bill of particulars to allow defendants

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to preview the evidence or theory of the Government’s case. United States v. Taylor, 707 F.

Supp. 696, 699 (S.D.N.Y. 1989) (citations omitted); United States v. Persico, 621 F. Supp. 842,

868 (S.D.N.Y. 1985).

In this case, the defendant is specifically requesting the production of co-conspirator

statements that the Government intends to offer at trial. The defendant’s request should be

denied. Rule 16 does not authorize discovery of statements made by co-conspirators, co-

defendants or witnesses. See, e.g., United States v. Santiago, 174 F. Supp. 2d 16, 38 (S.D.N.Y.

2001) (citing United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974)). See also Fed. R.

Crim. P. 16(a)(2) (“Nor does this rule authorize the discovery or inspection of statements made

by prospective government witnesses except as provided in 18 U.S.C. § 3500.”)

In any event, the Government has already provided the defendant with statements by co-

conspirators in furtherance of the defendant’s conspiracy. Among other things, the Government

filed a Complaint describing statements made in furtherance of the conspiracy and has produced

hundreds of pages of discovery, including, but not limited to, recordings and draft

transcriptions/translations of intercepted conversations involving the defendant and certain of his

co-conspirators prior to the defendant’s arrest. Therefore, even if the defendant was entitled to

discovery of co-conspirator statements, his motion should be denied given the nature and extent

of the Government’s discovery production.

In addition, the defendant further seeks an order compelling the Government to provide

early disclosure of any crimes or wrongs committed by each of the defendant’s co-conspirators.

Just as there is no basis to compel the Government to provide co-conspirator statements in Rule

16 discovery, there is also no basis to compel the Government to produce information about

crimes or bad acts committed by co-conspirators. In essence, the defendant appears to be

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seeking early disclosure of material required under Giglio v. United States, 405 U.S. 150, 154

(1972), and its progeny. The Government is aware of its Giglio obligations and will provide

Giglio material in a timely manner prior to trial.

Finally, although it is unclear from the defendant’s motion papers, the defendant also

appears to be seeking an order compelling the Government to provide notice of any evidence the

Government intends to produce under Rule 404(b). In that regard, the Government notes that, by

letter dated November 7, 2011, the Government informed the defendant of the following:

[I]t is the Government’s present intention to offer at trial either as direct evidence of the charged conspiracy or pursuant to Rule 404(b), Fed. R. Evid., evidence of other criminal activity by the defendant as proof of the defendant’s motive, intent, preparation, plan, knowledge and absence of mistake or accident. The evidence will establish, among other things, that on or about May 28, 2009, the defendant was arrested in Queens. At the time of the defendant’s arrest, agents recovered a large quantity of United States currency inside the vehicle in which the defendant was traveling. Among other things, the defendant stated that the money was probably derived from the sale of drugs, and that he had done similar things in the past on approximately 5 other occasions.

To the extent the Government intends to offer evidence of other “bad acts” under Rule

404(b), the Government will similarly provide notice to the defendant reasonably in advance of

trial. See Fed. R. Crim. P. 404(b).

II. The Defendant’s Motion to Compel the Government to Provide Brady Material

Next, the defendant seeks an order compelling the Government to produce exculpatory

material under Brady v. Maryland, 373 U.S. 83 (1963). The Government recognizes its Brady

obligations. To date, the Government is unaware of any Brady material regarding the defendant,

but will provide timely disclosure if any such material comes to light. To the extent the

defendant is seeking discovery of Giglio or Jencks Act materials, the Government will provide

these materials in a timely manner before trial.

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III. The Defendant’s Motion to Compel Law Enforcement Officers to Retain Rough

Notes of Interviews

The defendant requests that government agents be required to keep rough notes so as to

enable the Court to determine if disclosure of the notes is required under Brady or the Jencks

Act. The Government is aware of its obligations under Brady and the Jencks Act and will

comply with its obligations as appropriate.

IV. The Defendant’s Motion for Early Access to Jencks Act Materials

The defendant seeks an order compelling the Government to produce Jencks Act material

prior to the opening statements at trial. Consistent with its normal practice, the Government

intends to produce Jencks Act material on the Friday before the trial in this matter commences on

Monday, April 30, 2012.

V. The Defendant’s Motion Pursuant to Rule 609

Next, the defendant moves to preclude the Government from cross-examining the

defendant about his misdemeanor conviction for Criminal Mischief in the Fourth Degree, which

resulted in a sentence of 3 years probation. Given that Fed. R. Crim. P. 609(a)(1) generally

allows impeachment by evidence only of crimes “punishable by death or imprisonment in excess

of one year,” and the defendant’s criminal mischief conviction was a misdemeanor conviction,

the Government does not intend to cross-examine the defendant about this conviction.

To the extent the defendant is seeking an order compelling the Government to disclose

any convictions or bad acts that it does intend to cross-examine the defendant with, there is no

authority for the defendant’s request (and the defendant has not cited any).

VI. Defendant’s Motion for Disclosure and Suppression of All Rule 404(b) Evidence

Next, the defendant seeks an order compelling the Government to disclose any prior bad

acts it intends to cross-examine the defendant about and/or offer under Rule 404(b). As

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described above, the Government has provided notice that it intends to offer evidence of the

defendant’s May 28, 2009 arrest in Queens, at which time agents recovered a large quantity of

United States currency inside the vehicle in which the defendant was traveling. (As mentioned

above, in connection with that arrest, the defendant stated, among other things, that the money

was probably derived from the sale of drugs, and that he had done similar things in the past on

approximately 5 other occasions.) The Government submits that this evidence is plainly

admissible under Rule 404(b) to rebut any claim by the defendant that he lacked the requisite

knowledge or intent to commit the charged crime, or to prove his motive, opportunity,

preparation, plan, or absence of mistake or accident with respect to the charged crime.

It is well settled that “other acts” evidence is admissible under Rule 404(b) so long as the

evidence: (1) is advanced for a proper purpose; (2) is relevant to the crimes for which the

defendant is on trial; and (3) has probative value that is not substantially outweighed by any

unfair prejudicial effect. If requested, such evidence must be admitted with limiting instructions

to the jury. See United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993); United States v.

Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) (citing Huddleston v. United States, 485 U.S. 681,

691-92 (1988)); United States v. Smith, 727 F.2d 214, 219-20 (2d Cir. 1984); United States v.

Siegal, 717 F.2d 9, 16-17 (2d Cir. 1983); United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.

1988) (“[O]ther acts or crimes are admissible under Rule 404(b) to prove matters other than the

defendant’s criminal propensity”).

The Second Circuit takes an “‘inclusionary’ approach to the admission of prior-act

evidence,” under which “evidence of prior crimes, wrongs, or acts is admissible for any purpose

other than to show a defendant’s criminal propensity.” United States v. Lasanta, 978 F.2d 1300,

1307 (2d Cir. 1992) (citations and internal quotations omitted) (emphasis in original); United

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7

States v. Gelzer, 50 F.3d 1133, 1139-40 (2d Cir. 1995) (allowing circumstantial evidence from

prior unrelated and uncharged robbery where it established defendant’s connection to a weapon

used in present case). The Court has broad latitude in determining whether to admit evidence

pursuant to Rule 404(b), and its ruling will be reviewed only for abuse of discretion. See United

States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994); United States v. Brady, 26 F.3d 282, 286 (2d

Cir. 1994). Where a defendant raises a defense based on motive, opportunity, intent, knowledge,

or mistake, 404(b) is admissible to rebut such a defense. See Zackson, 12 F.3d at 1182 (“Where

a defendant claims that his conduct has an innocent explanation, prior act evidence is generally

admissible to prove that the defendant acted with the state of mind necessary to commit the

offense charged”) (citing United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987)).1

1 With respect to the timing of the Government’s introduction of evidence under Rule

404(b), the Second Circuit has held that “as a general rule, the offer of evidence to prove the defendant’s intent or knowledge should await the conclusion of the defendant’s case. However, where it is apparent that intent will be in dispute, evidence of prior or similar acts may be introduced during the government’s case-in-chief.” United States v. Pitre, 960 F.2d 1119, 1120 (2d Cir. 1992); see Inserra, 34 F.3d at 90 (“[A]dmission of similar act evidence to prove intent or knowledge . . . is admissible during the Government’s case-in-chief if it is apparent that the defendant will dispute that issue.”). Thus, in order to forestall the admission of their prior crimes in the Government’s case-in-chief, defendants must clearly and unequivocally remove knowledge and intent from the case:

‘When the Government offers prior act evidence to prove an issue, counsel must express a decision not to dispute that issue with sufficient clarity that the trial court will be justified (a) in sustaining objection to any subsequent cross-examination or jury argument that seeks to raise the issue and (b) in charging the jury that if they find all the other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.’

United States v. Nachamie, 101 F. Supp.2d 134, 138-39 (S.D.N.Y. 2000) (quoting United States

v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980)).

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Where a defendant’s knowledge and intent to distribute or possess with intent to

distribute narcotics are at issue, the Second Circuit has held that the Government is permitted to

introduce evidence of the defendant’s prior narcotics activity. See United States v. Arango-

Correa, 851 F.2d 54, 60 (2d Cir. 1988) (“To meet [the defendant’s] defense that he was merely

on hand to assist [a co-defendant] in receiving a shipment of paper and that he had no knowledge

of the true nature of the shipment, the government’s offer of proof that [the defendant] was

familiar with narcotics transactions was clearly relevant and probative.”); United States v.

Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (affirming admission of 404(b) evidence of

defendant’s prior attempt to import cocaine into the United States to rebut defendant’s argument

that he was not involved in charged cocaine importations).

The defendant’s knowledge and intent is in issue unless the defendant has unequivocally

conceded that element of the offense. See, e.g., United States v. Colon, 880 F.2d 650, 656-57

(2d Cir. 1989); Peterson, 808 F.2d at 974; see also United States v. Ramirez, 894 F.2d 565, 568

(2d Cir. 1990) (holding that when the defendant “disavows awareness that a crime was being

perpetrated” and the government bears the burden of proving knowledge “as an element of the

crime, knowledge is properly put in issue”). The defendant’s intent is also directly put in issue

when there is an argument that the defendant was “merely present” at the place where the alleged

offense occurred, and was not involved in any illegal activity. See Aminy, 15 F.3d at 260

(“Where, for example, the defendant does not deny that he was present during a narcotics

transaction but simply denies wrongdoing, evidence of other similar narcotics involvement may,

in appropriate circumstances, be admitted to show knowledge or intent.”); Zackson, 12 F.3d at

1182 (“Where a defendant claims that his conduct has an innocent explanation, prior act

evidence is generally admissible to prove that the defendant acted with the state of mind

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9

necessary to commit the offense charged.”); Pitre, 960 F.2d at 1117 (holding that evidence of

prior narcotics transactions was properly admitted “to show that [the defendants] were ‘not there

just to be standing there’ on the night of their arrests”); United States v. Fernandez, 829 F.2d

363, 367 (2d Cir. 1987) (per curiam).

Here the defendant has not articulated any reason why the Government’s proffered

404(b) evidence should not be admitted. Rather, the defendant generally argues that the

probative value of any 404(b) evidence that the Government might offer in this case “will be far

outweighed by the prejudicial effect to the Defendant.” The defendant’s blanket objection to any

Rule 404(b) evidence is unpersuasive.

Evidence is unfairly prejudicial “only when it tends to have some adverse effect upon a

defendant beyond tending to prove the fact or issue that justified its admission into evidence.”

United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). A “[d]efendant must show some

undue prejudice, apart from the prejudice implicit in Rule 404(b) evidence.” United States v.

Vargas, 702 F. Supp. 70, 72-73 (S.D.N.Y. 1988) (emphasis added). Furthermore, the “fact that

evidence may be ‘damning’ does not render it inadmissible.” Id. (citing United States v. Cirillo,

468 F.2d 1233, 1240 (2d Cir. 1972)).

The reality is that the proposed 404(b) evidence is no more sensational than the evidence

of the charged crime that will be presented at trial. The defendant is charged with conspiring

with others to distribute and possess with intent to distribute heroin, while the Government’s

proffered Rule 404(b) evidence relates to the defendant’s prior involvement in, at a minimum,

transporting drug proceeds, which is closely related conduct in furtherance of a drug conspiracy.

Critically, the proffered evidence does not include significantly larger quantities of narcotics, the

possession of guns or other more significant crimes. In these circumstances, there is no danger

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10

that the admission of the above-described evidence will elicit an emotional or otherwise

inappropriate response from the jury. See Pitre, 960 F.2d at 1120 (admitting evidence of prior

narcotics transactions in narcotics case where other acts evidence “‘did not involve conduct any

more sensational or disturbing than the crimes with which [the appellants were] charged’”)

(quoting United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir. 1990) (summarily rejecting

argument that probative value of drug paraphernalia evidence admitted under 404(b) was

outweighed by danger of unfair prejudice)). Accordingly, none of the proffered Rule 404(b)

evidence should be excluded under Rule 403. Therefore, that evidence is admissible under Rules

404(b) and 403 to prove the defendant’s knowledge, intent, opportunity, planning, preparation,

and lack of mistake or accident with respect to the charged narcotics offense.

In any event, if the Court admits the evidence under 404(b), the Court may minimize any

unfair prejudice to the defendant with a limiting instruction to remind the jury that the defendant

is not on trial for any offense other than the crime charged. See United States v. Tussa, 816 F.2d

58, 68 (2d Cir. 1987) (limiting instruction sufficient to preclude prejudice to defendant); see

generally Parker v. Randolph, 442 U.S. 62, 75 n.7 (1979) (“The ‘rule’ indeed, the premise

upon which the system of jury trials functions under the American judicial system is that juries

can be trusted to follow the trial court’s instructions.”). Accordingly, the Government should be

permitted to offer the proffered evidence if the defense does not remove the above-referenced

issues from the case.

VII. Defendant’s Motion for a Written Summary of Expert Testimony

Next, the defendant seeks an order compelling the Government to provide a written

summary of expert testimony it intends to introduce in its case in chief. Although the

Government has not yet determined whether it will offer expert testimony in this case, the

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Government is aware of its obligations under Rule 16 and will comply with those obligations to

the extent they become applicable.

VIII. Permission to File Additional Motions

Lastly, the defendant requests permission to file additional motions on the basis of new

information as it becomes available. The Government does not object to the defendant filing

additional motions based on information not already disclosed to the defendant.

CONCLUSION

For the reasons set forth above, the requests that the Court deny the defendant’s

motion in its entirety.

Respectfully submitted,

PREET BHARARA United States Attorney By: /s/ Niketh Velamoor Niketh Velamoor Assistant United States Attorneys Tel.: (212) 637-1076

cc: Joseph A. Lobosco, Esq. (By ECF)

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Certificate of Service Filed Electronically

The undersigned attorney, duly admitted to practice before this Court, hereby certifies that on the below date, he/she served or caused to be served the following document(s) in the manner indicated:

Government’s Response to Defendant’s Pre-Trial Motions

Service via Clerk’s Notice of Electronic Filing upon the following attorneys, who are Filing Users in this case:

Joseph A. Lobosco, Esq.

Service via e-mail upon the following attorneys who are not Filing Users in this case and who have previously given their written consent to service via e-mail:

N/A

Service via overnight courier; U.S. Mail; etc. upon the following attorneys who are not Filing Users in this case

N/A

Dated: New York, New York January 27, 2012

PREET BHARARA United States Attorney By: /s/ Niketh Velamoor Niketh Velamoor Assistant United States Attorney Tel.: (212) 637-1076

Case 1:11-cr-00875-DLC Document 16 Filed 01/27/12 Page 13 of 13

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Case 1:11-cr-00875-DLC Document 17 Filed 03/19/12 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------- ----- ---------------------x UNITED STATES OF AMERICA,

-v-

MIGUEL ORTIZ,

Defendant.

----------- -- --------- ------- -----------x DENISE COTE, District Judge:

11 Cr. 875 (DLC)

ORDER

The defendant Miguel Ortiz having filed pretrial motions,

and the Government having opposed the motions, it is hereby

ORDERED that the motions are denied for the reasons

described in the Government'S opposition.

Dated: New York, New York March 19, 2012

ENISE COTE United s~:: District Judge

Add. 14

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA,

- v. -

MIGUEL ORTIZ,

Defendant.

:

:

:

:

:

11 Cr. 875 (DLC)

- - - - - - - - - - - - - - - x

GOVERNMENT’S MOTION IN LIMINE

The United States of America, by its attorney, Preet

Bharara, United States Attorney for the Southern District of New

York, Jessica R. Lonergan, Elisha J. Kobre, and Rachel P. Kovner,

Assistant United States Attorneys, of counsel, respectfully submits

this motion in limine to request that the Court (1) permit the

Government to present the lay opinion testimony of a certified

Spanish court interpreter regarding the identification of a voice

on certain intercepted phone conversations that are conducted in

the Spanish language; and (2) preclude the defense from cross

examining a government witness regarding a more than twenty

year-old arrest that did not result in conviction.

A. The Government Should Be Permitted to Present Lay Opinion

Testimony Regarding the Identification of a Voice on

Certain Intercepted Calls.

The Government should be permitted to present the testimony of

Elizabeth Caruso, Certified Court Interpreter, who is expected to

1

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Add. 15

testify that, in her opinion, and based upon her familiarity with

the defendant’s voice, a voice on certain intercepted phone

conversations regarding the heroin transaction at issue in this

case is that of the defendant. Such lay opinion testimony is

entirely proper under Federal Rule of Evidence 901 and Second

Circuit precedent and should be permitted.

By way of background, the Government expects the evidence

presented at trial to include certain phone conversations,

intercepted pursuant to a New Jersey state court authorized

wiretap, between two individuals arranging a heroin transaction to

take place on January 28, 2011 (the “Intercepted Calls”). The

conversations in the Intercepted Calls are in the Spanish language.

The voice of one of the two participants in these conversations –

the recipient of the heroin – is known and the Government does not

expect that person’s identity to be a matter of dispute at trial.

A crucial issue at trial, however, will be the identity of the

other speaker. The Government intends to prove that this other

voice on the Intercepted Calls is that of the defendant, in part

based upon lay opinion testimony based upon a comparison of that

voice with recordings of a voice known to be the defendant’s: (1)

a voice exemplar provided by the defendant; and (2) a recording of

a phone conversation in which the defendant participated that was

obtained via a “ruse call” to the defendant’s personal cellular

phone.

2

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Such lay opinion testimony is regularly and properly admitted

pursuant to Federal Rule of Evidence 901(b)(5), which provides that

identification of a voice as that of a particular person may

properly be admitted through testimony of “[a]n opinion identifying

a person’s voice — whether heard firsthand or through mechanical or

electronic transmission or recording — based on hearing the voice

at any time under circumstances that connect it with the alleged

speaker.” Fed. R. Evid. 901(b)(5). The Second Circuit has

repeatedly upheld the admissibility of lay opinion testimony

regarding voice identification. See United States v. Cambindo

Valencia, 609 F.2d 603, 640 (2d Cir. 1979) (witness properly

identified defendant based on listening to voice exemplar); United

States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir. 1976) (“We

have on several occasions held that voice identification may be

adequate although the witness and the speaker have never personally

met”); United States v. Chiarizio, 525 F.2d 289, 296 (2d Cir. 1975)

(affirming trial court’s admission of agent’s testimony identifying

voice on a tape as the defendant’s, holding that “expert

qualification is not required for voice identification”); United

States v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir. 1972) (holding

that “a voice can be identified through subsequent acquaintanceship

with it, which Cruet [a New York City Police Department Detective]

professed to have through a ‘meeting’ and other tapped calls. . .

Weighing the testimony was a job for the jury.”); see United States

3

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Add. 17

v. Aiken, 491 F. Supp. 37, 39 (S.D.N.Y. 1980) (“Under Rule 901, so

long as a witness identifies the voice by opinion based upon

hearing the voice . . . under circumstances connecting it with the

. . . speaker, the accuracy of the identification is for the jury

to determine.”) (internal quotation marks omitted).

In United States v. Chiarizio, for example, the defendant

contended that it was reversible error for a law enforcement

officer to identify from the witness stand a voice on a taped

conversation as the defendant’s when the agent had never met the

defendant or otherwise spoken with him personally. The defendant

further argued that “this voice identification testimony was the

expression of mere opinion.” Chiarizio, 525 F.2d 289, 296. The

Second Circuit rejected these arguments, holding that “particular

expert qualification is not required for voice identification” and

that, because “it is undisputed that the agent in question had

heard Chiarizio’s voice exemplar, there was “undoubtedly . . . a

sufficient basis for the agent’s identification testimony.” Id.

Likewise, in United States v. Borrone-Iglar, the Court affirmed the

admissibility of an in-court voice identification of the defendant

by a detective based upon his having listened to a series of

wiretapped calls, holding that “a voice can be identified through

subsequent acquaintanceship with it.” Borrone-Iglar, 468 F.2d at

420.

Other circuits have concurred with the Second Circuit’s

4

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holdings on this point. See, e.g., United States v. Cruz-Rea, 626

F.3d 929, 934-935 (7th Cir. 2010) (affirming admission of voice

identification testimony by a law enforcement officer and rejecting

defendant’s argument that “the jury could have listened to the

tapes and identified the voices without the aid of Officer Toy’s

opinion”; “Although Rule 701 requires that testimony be ‘helpful,’

we have never held that testimony is unhelpful merely because a

jury might have the same opinion as the testifying witness.”);

United States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987) (“Any

person may identify a speaker’s voice if he has heard the voice at

any time.”); United States v. Gironda, 758 F.2d 1201, 1218 (7th

Cir. 1985) (witness was familiar with voice of defendant based on

at least three conversations prior to telephone call at issue);

United States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979)

(witness may identify defendant based on conversations held “either

before or after the particular speaking which is the subject of the

identification”).

Here, Ms. Caruso has become familiar with the defendant’s

voice by having listened to, and reviewed, the voice exemplar

provided by the defendant and the ruse call in which the defendant

participated, and the Government is prepared to offer Ms. Caruso’s

lay opinion testimony regarding the identification of the voice on

the Intercepted Calls. Ms. Caruso’s testimony in this regard will

be particularly helpful to the jury because the Intercepted Calls

5

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Add. 19

are in Spanish and Ms. Caruso is a certified Spanish interpreter.

Because voice identification testimony, in the form of opinion

testimony by a lay witness, is proper under Federal Rule of

Evidence 901 and Second Circuit law, and because the testimony is

relevant and probative, the Government should be permitted to

introduce the lay opinion testimony of Elizabeth Caruso, regarding

the identity of a voice on the Intercepted Calls.

B. The Defense Should Be Precluded from Cross Examining a

Government Witness Regarding a More than Twenty Year-Old

Arrest that Did Not Result in Conviction.

The Government expects to offer the testimony of a Drug

Enforcement Administration Group Supervisor (the “GS”) primarily

regarding surveillance the GS conducted as part of the

investigation leading to the charge against the defendant. The GS

was arrested more than 20 years ago, at age 21 or 22, for assault

with a deadly weapon. The GS was never prosecuted, let alone

convicted, for this arrest charge. According to the GS, he was

acting in self defense, and the charges were dropped after

witnesses corroborated his account. Indeed, the GS has been

informed that this arrest was expunged, and a search of a criminal

records database shows no arrest record for the GS.

The Federal Rules of Evidence strictly limit the circumstances

under which evidence of specific acts of a witness can be

introduced into evidence. Federal Rule of Evidence 608(b)

provides, inter alia, that, “specific instances of the conduct of

6

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Add. 20

a witness, for the purpose of attacking or supporting the witness’

credibility, other than conviction of crime as provided in rule

609, may not be proved by extrinsic evidence.” This rule further

provides broad discretion to the trial judge to limit

cross-examination in this area. It states that “in the discretion

of the court, if probative of truthfulness or untruthfulness,”

specific instances of prior conduct “may” be inquired into “on a

cross-examination of the witness . . . concerning a witness’

character for truthfulness or untruthfulness.” Fed. R. Evid.

608(b). “‘Trial judges retain wide latitude . . . to impose

reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the

issues, the witnesses’ safety, or interrogation that is repetitive

or only marginally relevant.’” United States v. Crowley, 318 F.3d

401, 417 (2d Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986)).

The defense should be precluded from inquiring on cross-

examination regarding the GS’s more than 20 year-old arrest for

several reasons. First, “[i]t is well settled that “arrests that

did not result in convictions are not admissible as specific

instances of conduct under Federal Rule of Evidence 608(b).”

United States v. Chiarizio, 525 F.2d 289, 296 (2d Cir. 1975).

Indeed, the Supreme Court has held that “[a]rrest without more does

not . . . impeach the integrity or impair the credibility of a

7

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Add. 21

witness. It happens to the innocent as well as the guilty. Only a

conviction, therefore, may be inquired about to undermine the

trustworthiness of a witness.” Michelson v. United States, 335

U.S. 469, 482 (1948). Because the arrest never resulted in a

prosecution, let alone a conviction, it is not relevant to the GS’s

credibility, and is inadmissible under Rule 608(b).1

Second, even if the arrest had resulted in prosecution or

conviction, it is well-settled that an assault with a deadly weapon

arrest is not probative on the issue of truthfulness or

untruthfulness. See United States v. Salameh, 152 F.3d 88, 131 (2d

Cir. 1998) (finding that convictions for assault, robbery, and

sodomy are not probative of truthfulness or untruthfulness).

Finally, the age of the arrest – which occurred more than 20 years

ago, when the GS was 21 or 22 – renders it wholly devoid of

probative value. Cf. United States v. Schlussel, 2009 U.S. Dist.

LEXIS 54876 (S.D.N.Y. Feb. 27, 2009) (“Through Rule 609(b),

Congress intended ‘that convictions over ten years old be admitted

very rarely and only in exceptional circumstances.’”) (quoting

Zinman v. Black & Decker, 983 F.2d 431, 434 (2d Cir. 1993)).

Because the GS’s arrest never resulted in prosecution or

conviction, was for a crime not probative as to truthfulness or

untruthfulness, is more than 20 years’ old, and has, in fact,

1 Because the arrest did not result in a conviction, it islikewise not admissible under Federal Rule of Evidence 609(“Impeachment by Evidence of a Criminal Conviction”).

8

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Add. 22

likely been expunged, the defense should be precluded from

inquiring about it on cross examination.

CONCLUSION

For the reasons set forth above, the Government

respectfully requests that the Court (1) permit the Government to

present the lay opinion testimony of a certified Spanish court

interpreter regarding the identification of a voice on certain

intercepted phone conversations that are conducted in the Spanish

language; and (2) preclude the defense from cross examining a

government witness regarding a more than twenty year-old arrest

that did not result in conviction.

Dated: New York, New YorkApril 23, 2012

PREET BHARARAUnited States AttorneySouthern District of New York

By: /s/Jessica R. Lonergan, Esq. Elisha J. Kobre, Esq.Rachel P. Kovner, Esq.Assistant United States Attorneys

9

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Add. 23

CERTIFICATE OF SERVICE

I, Jessica R. Lonergan, declare that I am employed in theOffice of the United States Attorney for the Southern District ofNew York, and on April 23, 2012, I caused a copy of the attachedGovernment’s Motion in Limine to be served by ECF to:

Joseph A. Lobosco, Esq.The Law Office of Joseph A. Lobosco, Esq. 118-21 Queens Boulevard Forest Hills, NY 11375

I declare under penalty of perjury that the foregoing istrue and correct. 28 U.S.C. Section 1746.

Dated: New York, New YorkApril 23, 2012

/s/Jessica R. LonerganAssistant United States Attorney

10

Case 1:11-cr-00875-DLC Document 26 Filed 04/23/12 Page 10 of 10

Add. 24

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA,

- v. -

MIGUEL ORTIZ,

Defendant.

:

:

:

:

:

11 Cr. 875 (DLC)

- - - - - - - - - - - - - - - x

GOVERNMENT’S MOTION IN LIMINE

The United States of America, by its attorney, Preet

Bharara, United States Attorney for the Southern District of New

York, Jessica R. Lonergan, Elisha J. Kobre, and Rachel P. Kovner,

Assistant United States Attorneys, of counsel, respectfully submits

this brief in support of its request to present at trial in this

case evidence of a prior arrest of the defendant pursuant to

Federal Rule of Evidence 404(b). The Government submits this brief

to more fully develop the arguments made orally at the final

pretrial conference with respect to the proposed Rule 404(b)

evidence.

I. Background

A. The Charge in the Indictment

The charge in the indictment arose from the defendant’s

participation in a heroin transaction that occurred on January 28,

2011 in the parking lot of the Metro Mall in Queens (the “2011

1

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Add. 25

Transaction”). The Government expects the evidence at trial to

show that the heroin was brought to the parking lot in a Chevrolet

Tahoe with a particular New York license plate number (the “Chevy

Tahoe”), which was registered to a friend of the defendant named

Kenny Vasquez. The driver of the Tahoe placed a car battery

containing six kilograms of heroin into the trunk of a car of a

co-conspirator. The recipient of the heroin was arrested shortly

after the transaction, but the driver of the Chevy Tahoe was not

arrested that night.

The Government expects the evidence at trial to show that

it was the defendant who drove the Tahoe to the Metro Mall for this

drug transaction and placed the heroin into the co-conspirator’s

car. This evidence will include, among other things, evidence that

the defendant had access to Kenny Vasquez’s car; evidence that the

defendant’s voice is that of the person who made intercepted phone

calls arranging the drug transaction with the drug recipient; and

cell-site data establishing, among other things, that when the deal

occurred, the defendant’s personal cell phone was in the area.

B. Proposed Evidence Regarding Prior Transaction

The Government seeks to introduce at trial evidence of an

occasion on which the defendant was previously stopped and then

released by law enforcement agents in a vehicle registered to Kenny

Vasquez. In particular, on May 28, 2009, the defendant was stopped

in Queens by Drug Enforcement Administration ("DEA") agents while

2

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Add. 26

driving a Ford Freestar. Records from the DMV show that the Ford

Freestar that the defendant used in the 2009 Transaction was

registered to Kenny Vasquez – the very same person to whom the

Chevy Tahoe used in the 2011 Transaction was registered.

Agents stopped the defendant after he was observed receiving

a suitcase that he placed inside the Freestar. A DEA agent who

observed the suitcase in plain view inside the Freestar opened the

suitcase and saw a shopping bag wrapped around what the defendant

later admitted to be $100,000 in cash. The defendant told the

agent, among other things, that he did not know to whom the money

belonged; after he picked up the money, he received a telephone

call and was told to whom he should deliver the money; he knew that

the money was probably derived from the sale of drugs; and that he

had engaged in similar conduct on approximately 5 other occasions.

II. Applicable Law

Under Rule 404(b) of the Federal Rules of Evidence, evidence

of prior acts is admissible to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). Moreover, with respect to such

other crimes evidence, the Second Circuit has “long been committed

to an inclusionary approach,” United States v. Benedetto, 571 F.2d

1246, 1248 (2d Cir. 1978), under which evidence of other crimes,

wrongs, or bad acts is admissible for “any purpose other than to

show a defendant's criminal propensity.” United States v. Garcia,

3

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Add. 27

291 F.3d 127, 136 (2d Cir. 2002). Under this approach, such

evidence is correctly admitted if: (1) it is offered for a proper

purpose; (2) it is relevant to a disputed trial issue; (3) its

probative value is not substantially outweighed by its possible

prejudice; and (4) the trial court administers an appropriate

limiting instruction. United States v. Edwards, 342 F.3d 168, 176

(2d Cir. 2003) (citation omitted). See also Edwards, 342 F.3d at

176 (stating that the inclusionary approach “allows evidence to be

received at trial for any purpose other than to attempt to

demonstrate the defendant’s criminal propensity”).

With respect to the admissibility of prior acts evidence under

Rule 404(b) to prove identity, the touchstone is simply relevance.

See United States v. Gubelman, 571 F.2d 1252, 1255 (2d Cir. 1978)

(“Thus, we find that the question of identity was a real one. The

similar acts evidence was relevant to that issue”); id. at 1255

(“We do not agree with our dissenting brother that only unique

signature crimes are admissible under the rubric of identity.”);

United States v. Tice, 1998 U.S. App. LEXIS 1404, at *3-4 (2d Cir.

Jan. 27, 1998) (“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. The prior conviction, therefore, was

admissible under Rule 404(b) to establish identity.”). Cf.

Weinstein’s Federal Evidence § 404.22[5][c], at 404-122

4

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Add. 28

(“Other-crimes evidence is not permissible to identify a defendant

as the perpetrator of the charged act simply because he or she has

at other times committed the same garden variety criminal act,

since this would be identification based on the forbidden inference

of propensity”).

Likewise, the Second Circuit has taken a broad view with

respect to prior acts evidence to establish knowledge: “Where a

defendant claims that his conduct has an innocent explanation,

prior act evidence is generally admissible to prove that the

defendant acted with the state of mind necessary to commit the

offense charged.” United States v. Zackson, 12 F.3d 1178, 1182 (2d

Cir. 1993). Where a defendant’s knowledge and intent to distribute

or possess with intent to distribute narcotics are at issue, the

Second Circuit has held that the Government is permitted to

introduce evidence of the defendant’s prior narcotics activity. See

United States v. Arango Correa, 851 F.2d 54, 60 (2d Cir. 1988) (“To

meet [the defendant’s] defense that he was merely on hand to assist

[a co-defendant] in receiving a shipment of paper and that he had

no knowledge of the true nature of the shipment, the government's

offer of proof that [the defendant] was familiar with narcotics

transactions was clearly relevant and probative.”); United States

v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir. 1987) (affirming

admission of 404(b) evidence of defendant’s prior attempt to import

cocaine into the United States to rebut defendant’s argument that

5

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Add. 29

he was not involved in charged cocaine importations).

The defendant’s knowledge and intent is in issue unless the

defendant has unequivocally conceded that element of the offense.

See, e.g., United States v. Colon, 880 F.2d 650, 656-57 (2d Cir.

1989); see also United States v. Ramirez, 894 F.2d 565, 568 (2d

Cir. 1990) (holding that when the defendant “disavows awareness

that a crime was being perpetrated” and the government bears the

burden of proving knowledge “as an element of the crime, knowledge

is properly put in issue”). The defendant’s intent is also directly

put in issue when there is an argument that the defendant was

“merely present” at the place where the alleged offense occurred,

and was not involved in any illegal activity. See Zackson, 12 F.3d

at 1182 (“Where a defendant claims that his conduct has an innocent

explanation, prior act evidence is generally admissible to prove

that the defendant acted with the state of mind necessary to commit

the offense charged.”)

Prior acts evidence under Rule 404(b) need not be identical to

the crime charged, but rather similar enough to be relevant to the

issues of identity and knowledge. See United States v. Sliker, 751

F.2d 477, 486-87 (2d Cir. 1984) (allowing proof of similar fraud

where “both schemes depended upon the use of phony bank checks

issued by the same non-existent offshore bank as well as on

prearrangement with an ‘officer’ of the bank to confirm the

validity of the checks” despite the fact that victim of one scheme

6

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was a bank and victim of the other was a diamond seller); Dowling

v. United States, 493 U.S. 342, 348-49 (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); United States v. Speed, 272

Fed. Appx. 88, 91-92 (2d Cir. 2008) (holding that the district

court properly “admitted limited evidence about Speed’s 1986

robbery conviction pursuant to Fed. R. Evid. 404(b), finding that

certain details of the prior crime were relevant to prove Speed's

identity as a participant in the later robberies”).

Other crimes evidence is, like all other evidence,

inadmissible if its probative value is substantially outweighed by

the danger of unfair prejudice. See Fed. R. Evid. 403. Evidence

is unfairly prejudicial “only when it tends to have some adverse

effect upon a defendant beyond tending to prove the fact or issue

that justified its admission into evidence.” United States v.

Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). Other crimes evidence

is not unfairly prejudicial where it is not “any more sensational

or disturbing than the crimes” with which the defendant has been

charged. United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d

7

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Cir. 1990).

III. Argument

The facts surrounding the 2009 Transaction are plainly

relevant to two issues likely to arise in this trial – identity and

knowledge – and it is for these proper purposes that the Government

seeks to present the brief testimony of one witness to the 2009

Transaction under Rule 404(b). With respect to identity, the

Government will bear the burden of proving that it was the

defendant who drove Kenny Vasquez's Chevy Tahoe to the Metro Mall

on January 28, 2011 with the six kilograms of heroin. That the

defendant, during the 2009 Transaction, used a vehicle registered

to the same Kenny Vasquez in connection with narcotics activity is

plainly relevant to the issue of identity. Evidence that the

defendant has used, in the course of his narcotics activities,

vehicles registered to a particular person, is akin to evidence of

the use of a distinctive tool used or method of committing an

offense that has regularly been found relevant to the issue of

identity. See, e.g., Dowling, 493 U.S. at 348-49 (evidence of

prior robbery admissible because on both occasions the defendant

wore a ski mask and carried a small pistol); Sappe, 898 F.2d at 880

(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).

Therefore, the fact that the defendant had previously used a

8

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Add. 32

vehicle registered to Kenny Vasquez in connection with laundering

the proceeds of narcotics trafficking tends to make it more

probable that the person using Kenny Vasquez’s vehicle on January

28, 2011 to traffic six kilograms of heroin was the defendant. See

Garcia, 291 F.3d at 136 (holding that evidence of other crimes,

wrongs, or bad acts is admissible for “any purpose other than to

show a defendant's criminal propensity”); Gubelman, 571 F.2d at

1255 (affirming admission of prior acts evidence to prove identity

and rejecting the argument that “only unique signature crimes are

admissible under the rubric of identity.”).

The 2009 Transaction is moreover highly relevant to the issue

of knowledge on which the Government will also bear the burden of

proof at trial. The six kilograms of heroin delivered at the Metro

Mall on January 28, 2011 were secreted in a hollowed-out car

battery. That the defendant was previously involved in laundering

narcotics proceeds on at least six occasions is highly relevant to

his knowledge that at the time of the charged offense he knew he

was delivering six kilograms of heroin. See Arango Correa, 851

F.2d at 60 (“To meet [the defendant’s] defense that he was merely

on hand to assist [a co-defendant] in receiving a shipment of paper

and that he had no knowledge of the true nature of the shipment,

the government’s offer of proof that [the defendant] was familiar

with narcotics transactions was clearly relevant and probative.”);

Ramirez-Amaya, 812 F.2d at 817 (affirming admission of 404(b)

9

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evidence of defendant's prior attempt to import cocaine into the

United States to rebut defendant’s argument that he was not

involved in charged cocaine importations).

The relevance of the 2009 Transaction is highlighted by the

fact that the narcotics proceeds involved in that transaction were

hidden inside a shopping bag contained in a suitcase. The 2009

Transaction thus tends to show that the defendant is well aware of

the methods used to conceal contraband in connection with narcotics

trafficking activities. See Zackson, 12 F.3d at 1182 (“Where a

defendant claims that his conduct has an innocent explanation,

prior act evidence is generally admissible to prove that the

defendant acted with the state of mind necessary to commit the

offense charged.”).

Nor is the probative value of evidence regarding the 2009

Transaction “substantially outweighed” by its possible prejudice.

Edwards, 342 F.3d at 176. Evidence is unfairly prejudicial “only

when it tends to have some adverse effect upon a defendant beyond

tending to prove the fact or issue that justified its admission

into evidence.” United States v. Figueroa, 618 F.2d 934, 943 (2d

Cir. 1980). A “[d]efendant must show some undue prejudice, apart

from the prejudice implicit in Rule 404(b) evidence.” United

States v. Vargas, 702 F. Supp. 70, 72-73 (S.D.N.Y. 1988) (emphasis

added). Furthermore, the “fact that evidence may be ‘damning’ does

not render it inadmissible.” Id. (citing United States V. Cirillo,

10

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Add. 34

468 F.2d 1233, 1240 (2d Cir. 1972)).

The reality is that the proposed 404(b) evidence is no more

sensational than the evidence of the charged crime that will be

presented at trial. The defendant is charged with conspiring with

others to distribute and possess with intent to distribute heroin,

while the Government’s proffered Rule 404(b) evidence relates to

the defendant's prior involvement in, at a minimum, transporting

drug proceeds in furtherance of a drug conspiracy. Indeed, the

value of the heroin the defendant is charged with in this case is

of far greater value than the $100,000 the defendant transported in

the 2009 Transaction.

In these circumstances, there is no danger that the admission

of the above-described evidence will elicit an emotional or

otherwise inappropriate response from the jury. See Pitre, 960 F.2d

1112, 1120 (2d Cir. 1992) (admitting evidence of prior narcotics

transactions in narcotics case where other acts evidence “did not

involve conduct any more sensational or disturbing than the crimes

with which [the appellants were] charged”).

11

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Add. 35

CONCLUSION

For the reasons set forth above, the Government

respectfully requests that the Court grant its request to be

permitted to present at trial in this case evidence of a prior

arrest of the defendant pursuant to Federal Rule of Evidence

404(b).

Dated: New York, New YorkApril 27, 2012

PREET BHARARAUnited States AttorneySouthern District of New York

By: /s/Jessica R. Lonergan, Esq. Elisha J. Kobre, Esq.Rachel P. Kovner, Esq.Assistant United States Attorneys

12

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Add. 36

CERTIFICATE OF SERVICE

I, Elisha J. Kobre, declare that I am employed in the Officeof the United States Attorney for the Southern District of NewYork, and on April 27, 2012, I caused a copy of the attachedGovernment’s Motion in Limine to be served by ECF to:

Joseph A. Lobosco, Esq.The Law Office of Joseph A. Lobosco, Esq. 118-21 Queens Boulevard Forest Hills, NY 11375

I declare under penalty of perjury that the foregoing istrue and correct. 28 U.S.C. Section 1746.

Dated: New York, New YorkApril 27, 2012

/s/Elisha J. KobreAssistant United States Attorney

13

Case 1:11-cr-00875-DLC Document 28 Filed 04/27/12 Page 13 of 13

Add. 37

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

. UNITED STATES OF AMERICA . Criminal No.: 11 Cr. 875 (DLC)

. v. . Honorable Denise L. Cote . MIGUEL ORTIZ .

.

MEMORANDUM IN SUPPORT OF DEFENDANT MIGUEL ORTIZ

MOTION IN LIMINE

JOSEPH A. LOBOSCO, ESQ.

Attorney for Defendant Miguel Ortiz 118-21 Queens Boulevard Suite 606 Forest Hills, New York 11375 (718) 578-9963

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 1 of 6

Add. 38

1

LEGAL ARGUMENT

The Government seeks to introduce evidence of a 2009 incident during which the

defendant, Miguel Ortiz, was stopped by government agents and found to be in possession of

approximately $100,000 USD. The vehicle that Mr. Ortiz was driving at the time of this stop

was registered to Kenny Vasquez. When questioned about the currency, Mr. Ortiz is alleged to

have stated that he did not know who the money actually belonged to, that the money was

probably proceeds of drug transactions, and that he had done this type of activity approximately

five times in the past.

The Government argues that it should be allowed to introduce evidence of this encounter

knowledge in the instant matter. Specifically, with respect to the issue of identity, the

Government argues that since both the 2009 incident and the instant matter involve vehicles

registered to an individual identified as Kenny Vasquez, a longtime friend of Mr. Ortiz, this fact

alone is sufficient to prove that Mr. Ortiz was the driver of the vehicle in the instant case.

Further, with respect to the issue of knowledge, the government argues that since both the 2009

incident and the current case involve the concealment of property (in the instant case, the drugs

on which the charge is based were hidden inside a hollowed-out car battery, while in the 2009

incident the cash that was recovered had been wrapped in plastic and placed inside a shopping

bag), that fact alone is sufficient to prove that Mr. Ortiz had knowledge of the contents of the

battery.

G

are based on an erroneous premise: that the 2009 incident is a crime, wrong, or act for which

Rule 404(b) evidence may be received.

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 2 of 6

Add. 39

2

. . . may . . . be admissible for . . . purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mi The G

incidences of money laundering of narcotics proceeds is not only speculative, but is based upon

an inappropriate application of the standard of review.

In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the

Supreme Court held that

there is sufficient evidence to support a finding by the jury that the defendant committed the

Huddleston at 685. Here, the Government argues that the 2009 incident is evidence

that

Gove p. 9. As is shown below, however, the

Government fails to provide any support for its argument.

In its motion, the Government tells an abbreviated version of the 2009 incident. The full

story is far from helpful for the Gover

A

Krol1, Mr. Ortiz was observed receiving a suitcase from another person and handing that person

a computer hard drive. Shortly after this exchange was witnessed, SA Krol and other agents

stopped the car being driven by Mr. Ortiz. When he approached Mr. Ortiz and proceeded to

speak with him, Agent Krol observed that Mr. Ortiz appeared very nervous, his hands were

both the vehicle and the suitcase, and stated that he did not know who the money belonged to,

but that he knew there was about $100,000 in the bag. Mr. Ortiz allegedly stated later at the

1 The report is annexed hereto as Exhibit A.

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 3 of 6

Add. 40

3

arrested at this time, the Office of the New York City Special Narcotics Prosecutor declined to

prosecute, and Mr. Ortiz was released.

The only evidence that can be derived from this report is that Mr. Ortiz was in possession

of a large sum of U.S. c

derived from the sale of drugs. His mere possession of the money, however, does not

corroborate his statement, and is not by itself a criminal act. And without sufficient

corroboration, the apparently inculpatory statements made by Mr. Ortiz would not sustain a

conviction. See U.S. v. Irving, 432 F.3d 401(2d. Cir. 2005).

In order to corroborate the statements made by Mr. Ortiz, the Government would have to

Irving, at 409, citing Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99

L.Ed. 101 (1954). The Government has produced no such substantiating proof, and instead asks

the Court to accept its ipse dixit argument in support of its argument that the 2009 incident

constitutes proof of a crime or bad act.

The Government also fails to support its argument with case law. The cases cited by the

Government Dowling v. United States, 493 U.S. 342 (1990), United States v. Sappe, 898 F.2d

878 (2d. Cir. 1990), and United States v. Speed, 272 Fed.Appx. 88 (2d. Cir. 2008) are entirely

distinguishable from the present case. All three Government cases involve robberies in which the

instant matter,

support its attempt to argue that the 2009 incident, which, as demonstrated above does not

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 4 of 6

Add. 41

4

establish criminal activity, nevertheless provides sufficient legal background to the instant charge

to render it admissible under Rule 404(b).

The Government also argues that the 2009 incident is relevant because, in both incidents,

the subject of the allege

removing the contents of a car battery to render it able to hide six kilograms of heroin is the same

as simply placing a large item into a vessel which was created for the explicit purpose of

carrying large items strains credulity.

evidence regarding the 2009 incident outweighs the danger of unfair prejudice is also flawed. To

allow evidence of an incident that could in no way support a finding by the jury that Mr. Ortiz

had committed the crime of money laundering would be extremely prejudicial and would have

no probative value regarding the crime charged in the instant indictment.

CONCLUSION

For all the foregoing reasons,

entirety.

Respectfully submitted, By: ________________________________

JOSEPH A. LOBOSCO, ESQ.

Attorney for Defendant Miguel Ortiz 118-21 Queens Boulevard, Suite 606 Forest Hills, New York 11375 (718) 578-9963 Dated: April 29, 2012

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 5 of 6

Add. 42

5

CERTIFICATION OF FILING AND SERVICE

I hereby certify that on April 29, 2012, the foregoing document was filed with the Clerk

of the Court and served in accordance with the Federal Rules of Criminal Procedure and/or

the following parties or participants:

Elisha Kobre Jessica Lonergan

Rachel Peter Kovner Assistant United States Attorneys

Southern District of New York

New York, New York 10007

By: _____________________________________

JOSEPH A. LOBOSCO, ESQ.

Attorney for Defendant, Miguel Ortiz

Case 1:11-cr-00875-DLC Document 29 Filed 04/29/12 Page 6 of 6

Add. 43