USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-2283

UNITED STATES OF AMERICA,

Appellee,

v.

JUANA ORTEGA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]

___________________

____________________

Before

Stahl and Lynch, Circuit Judges,

______________
and O'Toole,* District Judge.
______________
____________________

Richard K. Corley for appellant.

_________________
Zechariah Chafee, Assistant United States Attorney, with
________________
whom

Sheldon Whitehouse,
___________________

United

States

brief, for appellee.

____________________

Attorney, was

on

May 20, 1997

____________________

*Of the District of Massachusetts, sitting by designation.

Per
Per

Curiam.
Curiam.

Juana

Ortega

appeals

both

her

___________

conviction for conspiracy to distribute cocaine base ("crack"

cocaine) and her

flawed

that

sentence.

in that the court

She claims that

gave an improper

there

was

insufficient

conviction.

She

also

denial of her motion for a new trial.

in

was

Allen charge and

_____

evidence

argues error

her trial

to

support

the trial

Finally, she

the court's determination of her sentence.

her

court's

disputes

We affirm.

I.

Ortega

in violation

conspiracy

U.S.C.

ongoing

was charged with distributing crack cocaine

of 21 U.S.C.

to distribute

841(a)(1),

undercover

846.

841(a)(1) and 18 U.S.C.

crack cocaine

Her

operation

2, and

in violation

arrest resulted

conducted

by

of 21

from

the

an

Drug

Enforcement Agency ("DEA").

Between

December

Martin, a DEA informant,

18

and

19,

1994,

Hector

San

made arrangements to purchase crack

from Julio Valdez at a Providence, Rhode Island, Burger King.

Although Valdez himself had made a

San

Martin several days

phone

that this

Burger King

woman.

the

previous drug delivery to

earlier, Valdez told

time the

parking lot on

crack would

San Martin by

be delivered

December 19

by a boy,

in the

girl, or

The Burger King was located about a quarter mile from

apartment

Valdez

was

using

Providence.

-22

at

37

Labin

Street

in

On the day of

phone that

a lady

the deal, Valdez told San

in white

would deliver the

Martin by

drugs.

The

"lady in white" turned out to be Ortega.

observed

That afternoon, DEA agents

conducting surveillance

Valdez

from

and Ortega

emerge

the Labin

apartment and walk together to the Burger King.

pointed

Street

After Valdez

to San Martin's car, Ortega got into the front seat.

Valdez remained nearby to keep a lookout.

According

entered

to San

Martin's testimony,

when Ortega

the car, he asked Ortega if she had "the stuff," and

she replied "yes."

She then pulled out a

clear plastic bag

containing cocaine base from her inside jacket pocket.

San

Martin explained

that he wanted

to check

After

the quality,

Ortega answered "okay" and handed the bag to him.

Leaving

Martin told Ortega

out.

that the money was

in the trunk

and got

At the sight of the raised trunk door -- the signal for

arrest

After

the crack bag on the floor of the car, San

-- DEA agents moved

screaming;

few seconds,

in to arrest

Ortega got

out

Valdez and Ortega.

of the

car

and ran

she was caught and arrested by one of the agents.

Valdez, who had also tried to run, was caught and arrested as

well.

In

her statement to

police, Ortega

complained of

severe neck pain due to a thyroid condition and said that she

had been at 37 Labin Street, her girlfriend's apartment, only

-33

to rest.

She explained her

attempt to ease the pain.

only that

that

at some point

because

of her

walk to the

Burger King as

an

As for the drug delivery, she said

she was asked

physical

to do a

pain, she

was

"favor" and

not thinking

clearly.

On the second day of jury deliberations at Ortega's

trial,

verdict

count.

the jury

informed the

on all counts

The

court

but was deadlocked

then

instructing the jury to

Thirty minutes later,

court that

issued

it had

reached a

on the conspiracy

supplemental

go back and try to

charge

reach a verdict.

the jury returned a guilty

verdict on

the conspiracy charge.

At sentencing,

base offense level

the court

found that Ortega

of 32 based on the quantity

had a

of crack she

was delivering

of

I.

(84.3 grams) and a

The court then granted a two-level reduction pursuant

to U.S.S.G.

5C1.2 and

minimal role in

reduced

criminal history category

a four-level reduction for

the offense.

from 32

to 26,

Thus, the

and defendant

Ortega's

offense level

was sentenced

was

to 63

months in prison and 5 years of supervised release.

II.

Ortega's

insufficient evidence

court.

motion

for

argument

acquittal

was denied

based

by the

on

an

district

Viewing the record in the light most favorable to the

government,

a rational jury could

-44

have found guilt beyond a

reasonable doubt.

See United States v.

___ ______________

152, 157 (1st Cir.

1991).

court's

Dockray, 943
_______

We therefore affirm

denial of Ortega's Rule

29(c) motion.

F.2d

the district

See Fed. R.
___

Crim. P. 29(c).

To prove

the

conspiracy, the government must show that

defendant had the intent to agree and that the defendant

had

an

intent

offense.

See
___

to

distribute cocaine

United States
_____________

(1st Cir. 1983).

beyond

Ct.

1986

statement

F.2d 902,

doubt.

See
___

905

United States
_____________

778 (1st Cir. 1994), cert.

_____

(1995).

to San

deliver the

v. DeLutis, 722
_______

substantive

member could certainly have found

a reasonable

Montas, 41 F.3d 775,

______

S.

the

Viewing the evidence and drawing inferences

therefrom, a rational jury

guilt

--

Such

Martin that

evidence

a woman

drugs, Ortega's walk

denied, 115
______

included

Valdez's

wearing white

with Valdez to

v.

would

the Burger

King, Ortega's entrance into a stranger's car, and her prompt

delivery of a bag containing

crack previously hidden on

her

body, when asked for "the stuff."

This

case is

unlike

those Ortega

cites for

the

proposition that

a single

evidence of conspiracy.

United States v. Izzi,

_____________
____

drug transaction

is insufficient

See, e.g., Delutis, 722 F.2d at 906;

___ ____ _______

613 F.2d 1205, 1210 (1st

Cir. 1980).

There is no such per se rule in any event; we look at all the

facts in

there

the case.

DeLutis merely held that the single sale

_______

was insufficient

to tie

-55

the defendant

buyer

to the

sellers' drug distribution

F.2d at

502,

905-06;

conspiracies.

Cir.

evidence of conspiracy

1988) (rejecting

a common

the argument

between sellers must

because it involved only a single

purpose on

sale).

the part

here, Ortega

and Valdez.

Moreover, in

DeLutis, there was no

_______

See Acevedo,
___ _______

evidence that defendant intended

to infer based on

that

be insufficient

A single sale

can

of the

sellers --

842 F.2d

at 506.

direct or circumstantial

to agree to become involved

in a larger supplier/distributor relationship, and there

no basis

722

see also United States v. Acevedo, 842 F.2d

___ ____ _____________
_______

505-06 (1st

establish

See DeLutis,
___ _______

the single act in

question.

was

In

Izzi,
____

there

was

no

evidence

defendant to the broader

in the indictment.

conspiracy, and

of

agreement

linking

the

conspiracy during the dates charged

Here, there

it is not

were only two members of the

difficult to infer

knowledge and

agreement.

Other

distinguishable.

cases

Ortega

See,
___

cites

for

support

e.g., United States v.

____ ______________

are also

Ocampo, 964
______

F.2d 80 (1st Cir. 1992); United States v. Mehtala, 578 F.2d 6

_____________
_______

(1st Cir. 1978).

of

involvement

substantive

finding that

The evidence here shows that Ortega's level

was

crime and

greater

than

thus suffices

there was an

mere

knowledge

to support

intent to agree and

of

the

the jury's

an intent to

distribute.

40

See United States v. Brandon, 17 F.3d 409, 439___ _____________

_______

(1st Cir. 1994) (explaining

that Ocampo and Mehtala held

______
_______

-66

only that defendant's mere presence at scene of crime or mere

association

with

criminals

conspiracy conviction).

was

insufficient

to

support

Ortega

judge

gave to

deadlocked

on

committed

also challenges the supplemental charge the

the

jury

the

conspiracy

no error.

when

it

count.

jury

485 F.2d 37, 40

returned

that

The

it

trial

was

court

In fact, the judge recited verbatim the

Allen-type charge recommended by

_____

v. Angiulo,
_______

announced

a verdict

this court in United States

_____________

n.3 (1st Cir. 1973).

thirty

minutes later

That the

is

not, as

Ortega asserts, evidence of "coercion."

Ortega's appeal of the

motion

abuse of

for new

trial fares no

discretion or

States v. Rodriguez,
______
_________

trial court's denial of her

better.

misapplication of

738 F.2d 13,

We

review only for

law.

See United
___ ______

17 (1st Cir. 1984).

The

district court need only

of justice

would

Indelicato,
__________

611

order a new trial if

otherwise result.

F.2d

even

Cir.

suggests

1979).

v.

Ortega

no

justice.

Moreover, she does not recount any prejudicial acts

780

that

(1st

United States
_____________

presents

that

claim

376, 387

See
___

a miscarriage

miscarriage

of

resulted in an unfair trial, see Payton v. Abbott Labs,

___ ______
___________

F.2d 147, 152-53 (1st

Cir. 1985), nor

that the verdict was seriously

Land Serv., Inc., 586 F.2d 881,

________________

does she contend

erroneous, see Borras v. Sea___ ______

____

887 (1st Cir. 1978).

well within the court's discretion to deny the motion.

-77

It was

Lastly,

equally

challenges

her

unsuccessful grounds, arguing

should have

instead of

have

Ortega

used the base

sentence

first that

offense level for

crack cocaine and, second, that

allowed a

under U.S.S.G.

Ortega's first

downward departure

5K2.13.

for

on

two

the judge

powder cocaine

the court should

diminished capacity

There is absolutely no support for

claim: the court, pursuant

to the Sentencing

Guidelines, calculated

the base

offense level based

drug

crime.

See
___

involved in

the

U.S.S.G.

on the

2D1.1(c).

Evidence at trial showed that the drug was crack cocaine.

As

for

jurisdiction

to review

See United States

___ _____________

1995);

03

Ortega's

second

claim,

a discretionary

v. Morrison,
________

we

are

refusal

46 F.3d 127,

without

to depart.

130 (1st

Cir.

see also United States v. Saldana, 109 F.3d 100, 102___ ____ _____________
_______

(1st

Cir.

explicitly

1997).

address

While

Ortega's

the

district

request

for

court did

departure

not

for

diminished capacity, it is clear from the total circumstances

of

the case

that, rather

as well

as the

than believing

court's remarks

at sentencing

it lacked authority

the court simply declined to do so.

to depart,

See Morrison, 46 F.3d at

___ ________

130.

Ortega has

advanced no colorable claim of

that would lead us to exercise jurisdiction here.

Affirmed.
________

-88

legal error