                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                         December 19, 2006
                      U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                         Elisabeth A. Shumaker
                                   T E N T H C IR C U IT                     Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                            No. 06-7016
 v.
                                                       (D.C. No. 05-CR -52-P)
                                                            (E. D. Okla.)
 JU LIO CESA R O RTEG A ,

          Defendant - Appellant.



                             O R D E R A N D JU D G M E N T *


Before K E L L Y , M cK A Y , and L U C E R O , Circuit Judges.




      Julio Cesar Ortega appeals his conviction for Possession with Intent to

Distribute M ethamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(viii). Ortega’s counsel moves for leave to withdraw in a brief filed

pursuant to Anders v. California, 386 U.S. 738 (1967). W e A FFIR M Ortega’s

conviction, D ISM ISS the appeal, and G R A N T counsel’s motion to withdraw.

      On M ay 3, 2005, Oklahoma H ighway Patrol Trooper Cody Hyde stopped




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
Ortega and his passenger Fernando Hernandez in Sequoyah County, Oklahoma as

they were driving eastbound on Interstate 40. Hyde initiated the stop because the

vehicle was traveling at 76 miles per hour, six miles above the posted speed limit

of 70 miles per hour. During the stop, Hyde observed that Ortega and Hernandez

exhibited signs of nervousness and provided differing accounts of their travel

plans. Hyde asked Ortega for permission to search the vehicle, and Ortega

consented.

      Hyde’s inspection led to the discovery of approximately 815 grams of

methamphetamine behind the glove box of the vehicle. Both Ortega and

Hernandez were then placed under arrest. After Ortega realized he was being

arrested, he began to argue that the narcotics were not his and that he was

working as an informant for the United States Postal Inspection Service (“Postal

Inspection Service”). Ortega told Hyde to contact Dan Brubaker, a Postal

Inspector in Phoenix, Arizona, for w hom Ortega claimed to be working.

      On June 16, 2005, both Ortega and Hernandez were indicted on one count

of Possession with Intent to Distribute M ethamphetamine. On July 1, 2005,

Ortega filed a brief under seal, raising a public authority defense. Ortega

contended that he was acting under a confidential informant agreement with the

Postal Inspection Service in Arizona at the time he was arrested. He identified

Postal Inspectors Dan Brubaker and Raul V argus as contact persons.



                                        -2-
      At trial, Brubaker testified that he used Ortega as a confidential informant

in his investigations of mail theft and identity theft for the Arizona Postal

Inspection Service. Although Brubaker acknowledged that methamphetamine was

often involved in mail theft schemes, he averred that he instructed Ortega not to

take possession of controlled dangerous substances. On one occasion, Ortega

brought Brubaker roughly 3.3 grams of methamphetamine, purportedly obtained

in the course of Ortega’s inside dealings with a mail theft ring. Brubaker

immediately told Ortega that the drugs were “meaningless” to his investigations

and warned Ortega not to receive drugs without the Postal Inspection Service’s

“prior firsthand knowledge.” Brubaker informed Ortega that if “he was arrested

with methamphetamines on his person that [Brubaker] didn’t have prior

knowledge to [sic] . . . there was nothing [Brubaker] could do” to help Ortega

avoid criminal prosecution for drug possession.

      According to Brubaker, Ortega called him in April or M ay 2005 and

informed him that Hernandez asked for Ortega’s assistance in transporting a “load

of identifications and drugs” from Arizona to Arkansas. Brubaker testified that

he told Ortega not to take this trip. However, later in that same telephone

conversation, Brubaker asked Ortega to inform him if Ortega discovered the

location of the “load” before it left Arizona. Brubaker had no further contact

with Ortega prior to his arrest.



                                          -3-
      Raul Vargas, Brubaker’s supervisor, also testified at trial. He addressed the

scope of Ortega’s confidential informant agreement, which explicitly barred

activity without the prior approval of the Postal Inspection Service. The

agreement, read by Vargas at trial, states that “any undercover related activity

taken without the express prior approval of the Inspection Service places [the

informant] outside [the] agreement and subjects [the informant] to any applicable

criminal penalties or civil liabilities.” A portion of the agreement also prohibits

the receipt of controlled substances. Vargas asserted that he discussed each

provision of the agreement with Ortega.

      Ortega testified that he believed he undertook the trip under the authority of

Brubaker. According to his testimony, he informed Brubaker in M ay that

Hernandez w as planning a trip to Arkansas to transport a “load” of “papers,

I.D.’s, checks,” and drugs. Although Ortega admitted that Brubaker told him not

to take the trip, he averred that Brubaker asked him to find out where the “I.D.’s”

were located. Ortega claimed that neither Brubaker nor V argas told him not to

take drugs into his possession and asserted that both men lied in their trial

testimony on this issue.

      A jury found Ortega guilty, and the district court sentenced him to 151

months’ imprisonment, at the bottom of his Guidelines range. Ortega now

appeals his conviction.



                                          -4-
      If counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous, counsel may so advise the court and request

permission to withdraw. Anders, 386 U.S. at 744. Counsel must submit a brief to

both the appellate court and the client pointing to anything in the record that

would potentially present an appealable issue. The client may then choose to

offer any argument to the court. If, upon completely examining the record, the

court determines that the appeal is in fact frivolous, it may grant counsel’s request

to withdraw and dismiss the appeal. Id. In the present case, counsel provided

Ortega with a copy of his appellate brief, and Ortega has not filed a pro se brief

raising any additional argument.

      Counsel’s A nders brief identifies one potentially appealable issue:

insufficiency of the evidence at trial. In reviewing the sufficiency of the evidence

to support a conviction, “w e review the record de novo to determine w hether,

view ing the evidence in the light most favorable to the government, a reasonable

jury could have found the defendant guilty of the crime beyond a reasonable

doubt.” United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004). In a

case involving a public authority defense, we will uphold the jury verdict if a

rational juror could find, beyond a reasonable doubt, that the defendant did not

reasonably believe he was acting as an authorized agent of the Government. See

United States v. Apperson, 441 F.3d 1162, 1205 (10th Cir. 2006). Brubaker


                                         -5-
stated under oath that he explicitly told Ortega not to take the trip to Arizona, and

Ortega admitted that he received that instruction. Vargas read into evidence

Ortega’s confidential informant agreement, which states that any action taken

without the express prior approval of the Postal Inspection Service subjects

Ortega to criminal penalties. M oreover, both Brubaker and Vargas testified that

they instructed Ortega not to take possession of illegal drugs. Although Ortega

contended that both men lied about giving this instruction, a reasonable jury could

believe the Inspectors’ testimony over Ortega’s. The evidence at trial was thus

sufficient to support the jury’s verdict rejecting Ortega’s public authority defense.

      For the reasons stated above, we A FFIR M Ortega’s convictions, D ISM ISS

the appeal, and G R A N T counsel’s motion to withdraw.




                                                ENTERED FOR THE COURT




                                                Carlos F. Lucero
                                                Circuit Judge




                                          -6-
