18‐3830‐cr
United States v. Santiago‐Ortiz


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 18th day of December, two thousand nineteen.

PRESENT:            ROBERT D. SACK,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA,
                    Appellee,

                                        v.                                         18‐3830‐cr

JOSE SANTIAGO‐ORTIZ,
                                        Defendant‐Appellant,
JORDAN ALVAREZ,
                                        Defendant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE:                                                SHAWN G. CROWLEY, Assistant United
                                                             States Attorney (Lauren B. Schorr, George D.
                                                             Turner, Anna M. Skotko, Assistant United
                                                             States Attorneys, on the brief), for Geoffrey S.
                                           Berman, United States Attorney for the
                                           Southern District of New York, New York,
                                           New York.

FOR DEFENDANT‐APPELLANT:                   LUCAS ANDERSON, Rothman, Schneider,
                                           Soloway & Stern, LLP, New York, New York
                                           (Harvey Fishbein, New York, New York, on the
                                           brief).

              Appeal from the United States District Court for the Southern District of

New York (Kaplan, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Jose Santiago‐Ortiz appeals from a judgment entered

December 20, 2018, following a jury trial, convicting him of: (1) murder in aid of

racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and (2); (2) murder while engaged in

a narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; (3)

conspiring to distribute, and possess with intent to distribute, one kilogram or more of

heroin, in violation of 21 U.S.C. § 846; (4) murder through use of a firearm, in violation

of 18 U.S.C. § 924(j); and (5) using, carrying, and possessing firearms during and in

relation to a narcotics trafficking conspiracy, in violation of 18 U.S.C. §§ 924(c) and 2.

The district court sentenced Santiago‐Ortiz to life imprisonment on all five counts,

followed by five years of supervised release, and imposed a $500 mandatory special

assessment.



                                              2
              On appeal, Santiago‐Ortiz argues that (1) the evidence was insufficient to

support his convictions on counts one, two, and four, (2) the district court abused its

discretion in admitting a hearsay statement of Santiago‐Ortizʹs drug supplier Ramon

Cruz, (3) the indictment charged multiplicitous counts in violation of the Fifth

Amendmentʹs Double Jeopardy Clause, and (4) his sentence was substantively and

procedurally unreasonable. We assume the partiesʹ familiarity with the underlying

facts, procedural history, and issues on appeal.

                                          DISCUSSION

       1.     Insufficiency of the Evidence

              Santiago‐Ortiz argues that there was insufficient evidence to convict him

on counts one, two, and four because each of those counts required the government to

prove a connection between the murder of Jerry Tide and Santiago‐Ortizʹs involvement

in the charged drug conspiracy, and the government failed to do so. We review a

challenge to the sufficiency of the evidence de novo, ʺview[ing] the evidence in the light

most favorable to the government, crediting every inference that could have been

drawn in the governmentʹs favor, and deferring to the juryʹs assessment of witness

credibility and its assessment of the weight of the evidence.ʺ United States v. Lebedev,

932 F.3d 40, 48 (2d Cir. 2019). ʺA judgment of conviction will be upheld if any rational

trier of fact could have found the essential elements of the crime beyond a reasonable




                                              3
doubt.ʺ United States v. Tanner, 942 F.3d 60, 64 (2d Cir. 2019) (internal quotation mark

and emphasis omitted).

              There was sufficient evidence to support Santiago‐Ortizʹs convictions on

all three counts. The evidence at trial established that between 2010 and 2015, Santiago‐

Ortiz was the leader of a violent drug‐trafficking organization that sold heroin stamped

ʺFlowʺ in the Bronx, New York. Approximately six months before Santiago‐Ortiz shot

and killed Tide, his brother, Santiago, got into an altercation with Tide that left Santiago

with a laceration on his face from a glass bottle. The day of the shooting, Santiago

asked Tide if he ʺremember[ed] what [he] did to [Santiagoʹs] face,ʺ Appʹx at 57, and

ordered Santiago‐Ortiz to ʺhandle him,ʺ Appʹx at 61. Santiago‐Ortiz then shot and

killed Tide. Relying on these facts, Santiago‐Ortiz argues that Tideʹs murder was

committed solely in retaliation for the slashing of his brotherʹs face and bore no

connection to the drug conspiracy.

              The evidence also established, however, that Tideʹs murder was a critical

turning point for the Flow heroin organization. Prior to Tideʹs murder, Santiago‐Ortiz

and his brother competed with rival drug dealers for control of the Flow heroin market.

On the day the shooting occurred, Santiago‐Ortiz and his brother encountered Tide, left

to arm themselves, and returned with Cruz, who then became a participant in and

witness to the murder. After the murder, Cruz ʺconsolidated the operation,ʺ Appʹx at

291, and made Santiago‐Ortiz his sole distributor of Flow heroin in the area, vastly


                                             4
increasing the organizationʹs profits. Multiple members of the conspiracy attributed

this success to the respect Santiago‐Ortiz commanded on the street. Indeed, as soon as

Santiago‐Ortiz was incarcerated in 2014, sales decreased, and rival dealers began to

encroach on the organizationʹs territory.

               Based on this evidence, a rational juror could have concluded that

Santiago‐Ortiz murdered Tide, at least in part, to earn Cruzʹs respect and establish his

authority within the neighborhood, furthering the goals of the Flow heroin conspiracy.

Hence, the evidence was sufficient to support Santiago‐Ortizʹs conviction on counts one,

two, and four.1

       2.      Hearsay Statement

               Santiago‐Ortiz also argues that the district court erred in admitting a

hearsay statement of Cruz, his drug supplier and co‐conspirator. We review a district

courtʹs decision to admit evidence for abuse of discretion, United States v. Spoor, 904 F.3d

141, 153 (2d Cir. 2018), and we will reverse ʺonly where the decision to admit or exclude




1        See United States v. Vernace, 811 F.3d 609, 616‐17 (2d Cir. 2016) (emphasis omitted)
(finding a murder sufficiently related to a charged RICO conspiracy where ʺthe shootings . . .
stemmed from a personal dispute,ʺ but was committed by a member of a criminal enterprise
who was seeking to ʺfurther his own reputation . . . [and] more effectively carry out the
activitiesʺ of the crime family); United States v. Desinor, 525 F.3d 193, 202 (2d Cir. 2008)
(emphasis omitted) (holding ʺthe government need only prove beyond a reasonable doubt that
one motive for the killing . . . was related to the drug conspiracyʺ to satisfy the ʺengaging inʺ
element of 21 U.S.C. § 848(e)(1)(A)).
                                                5
evidence was manifestly erroneous,ʺ United States v. Williams, 930 F.3d 44, 58 (2d Cir.

2019) (internal quotation marks omitted).

                The contested statements came from a recorded call between Cruz and his

supplier Neil Lizardi in 2015, approximately five years after Tideʹs murder. In the call,

Cruz discusses his own motivations for participating in the murder, as well as his

understanding of Santiago‐Ortizʹs and Santiagoʹs motivations, stating:

                They did it to prove to me that they meant business and I
                did it for the same reason. I did the same for the same
                reason because thatʹs around the time we were getting to
                know each other, even there. We, we, we ‐‐ thatʹs when we
                became closer. Do you understand?

                ...

                But they did that to show me that they were daring because
                before that there was a guy who owed me money and they
                jumped him. Thatʹs why this pig never came by Hughes to
                mess around. Why if he is so daring he doesnʹt go to
                Hughes? Because he knows that those people would do
                anything for me.

Appʹx at 327.

                Over Santiago‐Ortizʹs objections, the district court admitted these

statements after holding that, with two exceptions, they constituted admissible co‐

conspirator statements under Federal Rule of Evidence (ʺFREʺ) 801(d)(2)(E). The

district court determined that the statements ʺ[t]hey did it to prove to me that they

meant businessʺ and ʺthey did that to show me that they were daringʺ were not co‐

conspirator statements and therefore could not be admitted for their truth on that basis.
                                               6
Nonetheless, the district court held that these statements gave context to the admissible

portions of Cruzʹs statement and admitted them for that limited purpose, accompanied

by a limiting instruction that was reiterated in the jury charge following summations.2

               The district court did not abuse its discretion in admitting Cruzʹs two out‐

of‐court statements to provide context for his statement that ʺI did the same for the

same reason,ʺ Appʹx at 327, that is, for the same reason that Santiago‐Cruz (and his

brother) killed Tide, see United States v. Sorrentino, 72 F.3d 294, 298 (2d Cir. 1995).

Santiago‐Ortiz focuses his argument chiefly on FRE 803, arguing that even if the

statements were admissible for context, they nonetheless should have been omitted

because there was such a high likelihood of prejudice.

               While we have found error where highly prejudicial evidence was

admitted for a non‐hearsay purpose, see United States v. Reyes, 18 F.3d 65, 67‐68 (2d Cir.

1994), there was no error here. In Reyes, we held that the district court erred in

admitting evidence for the non‐hearsay purpose of explaining an agentʹs state of mind

because we found that the agentʹs state of mind was ʺprobably not relevant and was

certainly not important to any issue properly in the trial.ʺ Id. at 71. Here, by contrast,

there can be no dispute that the evidence was relevant. Cruz was a participant in Tideʹs



2       Immediately after the jury heard the recorded call, the district court told the jurors: ʺyou
may not consider [the statements] in determining why the defendant murdered Jerry Tide if, in
fact, he did so.ʺ Appʹx at 328. In the jury charge, the district court reminded the jurors of the
previous instruction stating: ʺI instructed that you may not consider those portions of [the]
statements . . . in determining why the defendant murdered Jerry Tide.ʺ Appʹx at 462.
                                                  7
murder and was also Santiago‐Ortizʹs supplier of Flow heroin. As a co‐conspirator,

Cruzʹs statements were directly relevant to the existence and purpose of the

racketeering enterprise alleged in count one and the conspiracy alleged in count three.

Moreover, the district court twice provided a clear limiting instruction, and the jury is

presumed to have followed it. See United States v. Downing, 297 F.3d 52, 59 (2d Cir.

2002). Against this backdrop, the potential for prejudice did not outweigh the probative

value of the evidence, and there was no abuse of discretion.

       3.      Multiplicitous Counts

               Santiago‐Ortiz argues for the first time on appeal that his conviction

violates the Fifth Amendmentʹs Double Jeopardy Clause because count three of the

indictment is a lesser included offense of count two and count five is a lesser included

offense of count four. This argument is waived. Pursuant to Federal Rule of Criminal

Procedure 12(b)(3), a defendant must raise arguments based on defects in the

indictment, including ʺcharging the same offense in more than one count (multiplicity),ʺ

by pretrial motion ʺif the basis for the motion is then reasonably available and the

motion can be determined without a trial on the merits.ʺ See also United States v. Chacko,

169 F.3d 140, 145 (2d Cir. 1999). In this case, the indictment was returned over a year

before Santiago‐Ortizʹs case went to trial, and any purported defect in the indictment

would have been apparent well before trial. Thus, Santiago‐Ortiz waived this challenge

by failing to raise it before, during, or after trial in the district court.


                                                 8
       4.     Reasonableness of the Sentence

              Santiago‐Ortizʹs final argument is that his sentence was procedurally and

substantively unreasonable. A sentence is procedurally unreasonable where the district

court ʺfails to calculate (or improperly calculates) the Sentencing Guidelines range,

treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain

the chosen sentence.ʺ United States v. Degroate, 940 F.3d 167, 174 (2d Cir. 2019).

Procedural objections raised for the first time on appeal are reviewed for plain error,

which requires a showing that: ʺ(1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the [defendantʹs]

substantial rights, which in the ordinary case means it affected the outcome of the

district court proceedings; and (4) the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.ʺ Id. (internal quotation marks omitted).

              Santiago‐Ortiz argues for the first time on appeal that the district court

erred by holding that his conviction under 18 U.S.C. § 924(j) triggered a mandatory,

consecutive sentence. While we have not squarely addressed this question in a

precedential opinion, four of the five circuits to have considered Santiago‐Ortizʹs

argument have rejected it as inconsistent with the text of the statute and the purpose of




                                              9
the statutory scheme.3 Even construing the question as unsettled, Santiago‐Ortizʹs

argument fails because he cannot demonstrate plain error. See United States v. Marcus,

560 U.S. 258, 262 (2010). Moreover, Santiago‐Ortiz received a life sentence on each of

the five counts.

                Santiago‐Ortizʹs argument that the sentence of life imprisonment on

counts two through five was substantively unreasonable is similarly without merit. We

review the substantive reasonableness of a district courtʹs sentence for abuse of

discretion and will find a sentence unreasonable where ʺit cannot be located within the

range of permissible decisions.ʺ Degroate, 940 F.3d at 174 (internal quotation marks

omitted). Our review for substantive unreasonableness is particularly deferential, and a

sentence will not be set aside unless it is ʺso shockingly high, shockingly low, or

otherwise unsupportable as a matter of law that allowing [it] to stand would damage

the administration of justice.ʺ Id. (internal quotation marks omitted).

                The district court carefully considered the sentencing factors, including

Santiago‐Ortizʹs age, difficult upbringing, and the letter he submitted on the eve of




3       We have held that Section 924(j) triggers a mandatory consecutive sentence in a non‐
precedential summary order. See United States v. Young, 561 F. Appʹx 85, 93 (2d Cir. 2014). The
Third, Fourth, Eighth and Tenth Circuits have also rejected Santiago‐Ortizʹs interpretation,
while the Eleventh Circuit has adopted it. See United States v. Bran, 776 F.3d 276, 282 (4th Cir.
2015); United States v. Berrios, 676 F.3d 118, 140 (3d Cir. 2012); United States v. Allen, 247 F.3d 741,
769 (8th Cir. 2001); United States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002); accord United States v.
Charley, 417 F. Appʹx 627, 629 (9th Cir. 2011); but see United States v. Julian, 633 F.3d 1250, 1253
(11th Cir. 2011).
                                                   10
sentencing. Nonetheless, Santiago‐Ortiz led a large‐scale heroin operation for some five

years and killed Tide, shooting him nine times. The ʺsenseless and viciousʺ nature of

the murder, along with Santiago‐Ortizʹs ʺangry, arrogant, and defiantʺ demeanor at trial

‐‐ including a time when he ʺleapt out of his seat . . . [in an] escape attempt,ʺ Appʹx at

479‐80 ‐‐ convinced the district court that Santiago Ortizʹs dangerousness outweighed

the other sentencing considerations in this instance. That determination falls within the

range of permissible decisions and we find no basis to disturb it on appeal.4

                                            *   *    *

                  We have considered Santiago‐Ortizʹs remaining arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

                                             FOR THE COURT:
                                             Catherine OʹHagan Wolfe, Clerk




4      Notably, the Sentencing Guidelines range for Santiago‐Ortizʹs convictions under each of
counts two and three was life imprisonment, see PSR ¶ 90, further underscoring the
reasonableness of the district courtʹs sentence as to those counts. See Rita v. United States, 551
U.S. 338, 347 (2007).
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