         09-4806-cr
         USA v. Ortiz


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-4806-cr
19
20       NATHANIEL L. ORTIZ,
21
22                                       Defendant-Appellant.
23
24
25
 1   FOR APPELLANT:    MARC L. GREENWALD, Peter N. Tsapatsaris,
 2                     Isaac Nesser, Quinn Emanuel Urquhart
 3                     Oliver & Hedges, LLP, New York, NY
 4
 5   FOR APPELLEE:     MICHAEL D. MAIMIN, Assistant United
 6                     States Attorney, (Preet Bharara, United
 7                     States Attorney for the Southern District
 8                     of New York, Todd W. Blanche and
 9                     Katherine Polk Failla, Assistant United
10                     States Attorneys, of counsel) New York,
11                     NY.
12
13        Appeal from the United States District Court for the
14   Southern District of New York (Chin, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the district court be

18   AFFIRMED.

19       Plaintiff-appellant, Nathaniel L. Ortiz (“Appellant”),

20   appeals from a judgment of the United States District Court

21   for the Southern District of New York (Chin, J.), entered on

22   November 12, 2009, convicting Appellant of conspiracy to

23   distribute fifty grams or more of crack cocaine, in

24   violation of 21 U.S.C. § 846 and brandishing a firearm in

25   furtherance of a drug trafficking crime in violation of 18

26   U.S.C. §§ 924(c)(1)(A)(ii), 2.   We assume the parties’

27   familiarity with the underlying facts, the procedural

28   history, and the issues presented for review.

29       Appellant advances four arguments on appeal.   First, he


                                  2
1    argues that the evidence was insufficient to prove the

2    charged conspiracy for three of the four and a half years

3    charged in the Superseding Indictment (the “Indictment”).

4    Second, he argues that there was a substantial variance

5    between the dates of the conspiracy alleged in the

6    Indictment and the proof adduced at trial.    Third, he argues

7    that the district court erred in admitting into evidence

8    certain hearsay statements.    Finally, he argues that his

9    sentence is substantively unreasonable.

10        We conclude that the evidence is sufficient to show the

11   existence of a drug conspiracy lasting from 2004 until 2008

12   and to link Appellant to the conspiracy for its full

13   duration. 1   A defendant challenging the sufficiency of the

14   evidence bears a "heavy burden," because this Court "must

15   consider the evidence in the light most favorable to the

16   prosecution and uphold the conviction if any rational trier

17   of fact could have found the essential elements of the crime

18   beyond a reasonable doubt."    United States v. Aguilar, 585

19   F.3d 652, 656 (2d Cir. 2009) (internal quotation marks



          1
           We review a challenge to the sufficiency of the
     evidence de novo. United States v. Yannotti, 541 F.3d 112,
     120—21 (2d Cir. 2008).

                                    3
1    omitted)(emphasis in original). Where a defendant challenges

2    the sufficiency of the evidence in a conspiracy, "deference

3    to the jury's findings is especially important . . . because

4    a conspiracy by its very nature is a secretive operation,

5    and it is a rare case where all aspects of a conspiracy can

6    be laid bare in court with . . .     precision." United States

7    v. Santos, 541 F.3d 63, 70 (2d Cir. 2008)(internal quotation

8    marks omitted). “Both the existence of a conspiracy and a

9    given defendant's participation in it with the requisite

10   knowledge and criminal intent may be established through

11   circumstantial evidence." See United States v. Stewart, 485

12   F.3d 666, 671 (2d Cir. 2007).

13       Appellant does not dispute the substantial and direct

14   evidence proving his leadership of the drug distribution

15   conspiracy throughout 2007 and 2008.     Though less

16   substantial, there is nonetheless an array of circumstantial

17   evidence of the conspiracy’s existence and Appellant’s

18   involvement for 2004 through 2006.     That evidence includes,

19   inter alia: (1) 2004 undercover purchases of crack cocaine

20   in Appellant’s signature black dime bags occurring at 1269


                                     4
1    Grand Concourse; (2) the unreported income of Appellant and

2    his now wife allowing her to purchase a number of luxury

3    automobiles; (3) testimony regarding a witness’ personal

4    knowledge of ongoing crack sales at 1269 Grand Concourse

5    during 2004; and (4) testimony regarding ongoing crack sales

6    on behalf of Appellant at the same location from at least

7    2006.   This evidence, considered in its totality, is

8    sufficient for a rational jury to infer Appellant’s

9    continued participation, dating back to 2004, in the same

10   drug distribution conspiracy shown to exist in 2007 and

11   2008.

12       In any event, reversal of the conviction is not

13   appropriate because Appellant cannot show an impermissible

14   variance between the Indictment and the proof, nor can he

15   show requisite prejudice.   A variance occurs "when the

16   charging terms of the indictment are left unaltered, but the

17   evidence at trial proves facts materially different from

18   those alleged in the indictment."   United States v. Dupre,

19   462 F.3d 131, 140 (2d Cir. 2006) (internal quotation marks

20   omitted).   Reversal of the conviction is warranted only if

21   the alleged variance prejudiced the defendant.   Id.


                                   5
1    Prejudice exists if the variance "infringes on the

2    substantial rights that indictments exist to protect — to

3    inform an accused of the charges against him so that he may

4    prepare his defense and to avoid double jeopardy."     Id.

5        "[A]n indictment date only needs to be substantially

6    similar to the date established at trial."     United States v.

7    Teague, 93 F.3d 81, 84 (2d Cir. 1996).     “[S]ignificant

8    flexibility in proof,” is permissible “provided that the

9    defendant was given notice of the core of criminality to be

10   proven at trial."     United States v. Heimann, 705 F.2d 662,

11   666 (2d Cir. 1983).     Furthermore, "[p]articularly with

12   respect to allegations of time, we have permitted proof to

13   vary from the indictment provided that the proof fell within

14   the period charged." Id. This is especially true where, as

15   here, time is not an element of the charged offense.        See

16   id. at 669.

17       Even assuming that the evidence for 2004 through 2006

18   was insufficient, the undisputed evidence from 2007 and 2008

19   fell within the time period charged in the Indictment.

20   Further, the 2007—2008 evidence did not prove criminal

21   activities that were materially different than those in

22   2004—2006.    Thus, Appellant was at all times on notice of



                                     6
1    the “core criminality” to be proven at trial. See Heimann,

2    705 F.2d at 666, 669.

3        For similar reasons Appellant cannot show prejudice.

4    He was on notice of the exact crimes charged and could mount

5    a proper defense, and the government cannot retry him for

6    the same 2004—2008 conspiracy.      See Dupre, 462 F.3d at 140.

7    Absent prejudice, reversal of the conviction is not merited.

8        In light of the discussion above, we need not determine

9    whether the district court abused its discretion in

10   admitting certain hearsay statements from an unavailable

11   witness.   Such an error would be harmless in light of the

12   overwhelming evidence for 2007 and 2008 and our conclusion

13   that no prejudicial variance exists.      See United States v.

14   Padilla, 548 F.3d 179, 190 (2d Cir. 2008).

15       Finally, we conclude that Appellant’s life sentence is

16   not substantively unreasonable.      We will not "substitute our

17   own judgment for the district court's on the question of

18   what is sufficient to meet the § 3553(a) considerations in

19   any particular case." United States v. Cavera, 550 F.3d 180,

20   189 (2d Cir. 2008).     We will "set aside a district court's

21   substantive determination only in exceptional cases where

22   the trial court's decision cannot be located within the



                                     7
1    range of permissible decisions." Id. (emphasis in original)

2    (internal quotations omitted).

3        At Appellant’s sentencing hearing, the district court

4    considered a number of factors including the quantity of

5    drugs involved; Appellant’s leadership role in the

6    organization; his multiple prior convictions including one

7    for attempted murder; and his employment of youths in the

8    criminal conspiracy.    In light of these factors, the

9    district court adopted the life sentence recommended in the

10   Presentence Report.    Nothing in the record suggests that the

11   district court abused its discretion, and we conclude that

12   the sentence is substantively reasonable.

13       For the foregoing reasons, the judgment of the district

14   court is hereby AFFIRMED.

15
16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk
18
19                                By:




                                    8
