Opinion
01 civ. 9990 (MBM)
October 28, 2002
ANTHONY ORTIZ, (Petitioner pro se) FCI Allenwood, White Deer, PA.
JAMES F. COMEY, ESQ., United States Attorney for the Southern District of New York, DANIEL N. GITNER, ESQ., Assistant U.S. Attorney, New York, NY.
OPINION AND ORDER
Anthony Ortiz was convicted on March 1, 1999, following a three-day jury trial on the single charge of possession of cocaine with intent to distribute, as set forth in indictment 98 Cr. 1099. He was sentenced on November 22, 1999, principally to 262 months' imprisonment, and his conviction was summarily affirmed. United States v. Ortiz, 216 F.3d 1074 (2d Cir. 2000) (Table). He now petitions pursuant to 28 U.S.C. § 2255 to set aside the judgment of conviction on the ground that his lawyer at trial, who also represented him on appeal, failed to provide effective assistance. The alleged ineffectiveness consisted of failing to call, and comment on the government's failure to call, certain witnesses, failure to request certain jury charges, failure to object to a prosecution argument, failure to object to the court's charge in certain respects, and failure to argue at trial and on appeal that the indictment had been constructively amended.
For the reasons set forth below, the charged lapses either did not occur, or obviously constituted intelligent tactical choices, including an apparent disinclination to make futile arguments. Moreover, the indictment was not constructively amended. Therefore, Ortiz's attorney did not provide ineffective assistance, the requested relief is denied, and the petition is dismissed.
I.
The proof at trial showed that at about 8:20 p.m. on the evening of July 29, 1998, Ortiz sold crack cocaine to an undercover officer in the Bronx. (Tr. 40-65, 141) The officer, Andres Inoa, encountered a woman later identified as Amparo Marrero while walking on Tremont Avenue near Bronx Street. (Tr. 38) He was carrying $20 in pre-recorded "buy" money — i.e., bills whose serial numbers had been recorded so as to provide evidence after arrest that whoever had the money had participated in a drug transaction. (Tr. 35, 37) The lighting conditions were good and the street lights were on. (Tr. 38)
Believing that Marrero looked like a drug user, Inoa asked her if she could direct him to someone who would sell him drugs. (Tr. 39, 41) She responded affirmatively and led him toward a series of benches, near one of which they encountered Ortiz, attired in a tank top basketball-style t-shirt that bore the number 23, and shorts and sandals. (Tr. 42, 44, 46) Marrero then introduced Inoa to Ortiz, and the officer asked Ortiz if he would sell him $20 worth of drugs. (Tr. 44-45) Inoa handed the $20 to Marrero, who then accompanied Ortiz along a river that runs near Bronx Street, until Ortiz stopped near a tree, at which point Marrero handed Ortiz the money and Ortiz handed a quantity of crack cocaine to Marrero, who handed it to Inoa. (Tr. 30-31, 47-50, 52) As Marrero and Inoa walked away, Inoa could see Ortiz following them. (Tr. 56)
Inoa broadcast to his back-up team of officers a confirmation that he had bought drugs, and a description of Ortiz and Marrero. (Tr. 57-58, 145-46) Members of that team arrested Marrero, who was carrying $10 of pre-recorded buy money, and Ortiz, who had a bag of marijuana at his feet and was wearing the shirt that bore the number 23. (Tr. 148-49, 157-58) Another person named James Stratford was arrested as well.
Defendant did not testify, but Michelle Gonzalez, who said she was his girl friend in July 1998, testified that Ortiz had left their apartment at about 8:00 p.m. on July 29 to buy marijuana for the couple to smoke later that night. (Tr. 211-13, 225-26) She confirmed that when he left the apartment, Ortiz was wearing a basketball t-shirt bearing the number 23, and said it takes about 15 minutes to reach Bronx Street from her apartment. (Tr. 220)
II.
A petitioner who presses a claim that he received ineffective assistance of counsel must both show that his lawyer's performance fell below "an objective standard of resonableness" under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and "affirmatively prove prejudice," id. at 693. In order to satisfy the second part of that test — prejudice — the petitioner must show that the alleged errors had "an adverse effect on the defense" — i.e., that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94. Moreover, decisions by trial counsel that "fall squarely within the ambit of trial strategy, . . . if reasonably made," cannot give rise to a claim of ineffectiveness. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). In particular, "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." Id. The possible damage that could be done to a defendant's case on cross-examination of a defense witness is a tactical consideration that may well recommend against calling a witness. See United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992), and cases cited therein (noting possible impeachment of uncalled exculpatory witness).
In his petition, Ortiz taxes his attorney for having failed to call Marrero and Stratford, and indeed for having failed to interview them. However, an affidavit signed by Ortiz's lawyer discloses that he spoke with the lawyer who represented Marrero, and learned that she was facing federal charges at the time relating to her activities on the night in question, and it was apparent that if called as a witness she would invoke her Fifth Amendment rights. (Schmidt Aff., Petition Ex. D, ¶¶ 9, 10) Moreover, Marrero, even if she had testified, would have had to confirm that she had been arrested with $10 of pre-recorded buy money from the transaction that was the subject of the indictment. Further, there is nothing but Ortiz's wishful speculation that she would have had anything helpful to say.
Notwithstanding Ortiz's suggestion that his lawyer failed to interview Stratford, Ortiz's lawyer has averred that he received reports of Stratford's statements to the government (id. ¶ 11), and had an opportunity to interview him (id. ¶ 12). Moreover, there is attached to the petition a set of notes (Petition Ex. C 2-12) that were forwarded by the government to defense counsel (Petition Ex. C 1). Those notes reflect that Stratford saw a Hispanic girl who was arrested with him, presumably Marrero, bring another person, whom he had never seen before, to an area near the river "w[h]ere you would go to buy drugs like crack, marijuana or whatever." (Petition Ex. C 6-7) The notes reflect also that Stratford saw a person clad in a Chicago Bulls shirt with the number 23, presumably Ortiz, in the vicinity (id. at C 6, 8-9), that he did not see anyone else in the vicinity with a Chicago Bulls shirt on (id. at C 9), and that Stratford could not determine whether people were buying or selling drugs because, "I was too high to care." (Id. at C 7) There is also attached to the petition a single page of typed notes, apparently reflecting defense counsel's conversation with Stratford, in which Stratford is reported to have said that Ortiz did not sell anything while Stratford was looking at him. (Petition Ex. D 4; see Schmidt Aff., Petition Ex. D, ¶ 12 (averring that the notes are an accurate reflection of what Stratford said))
Nor would it necessarily have been productive for Ortiz's lawyer to stress the government's failure to call Marrero or Stratford. To have done so would simply have invited a reminder to the jury that Marrero was arrested along with Ortiz and in possession of some of the buy money, and that Stratford was never shown to have had anything to do with the transaction. The government could also have reminded the jury that although the burden of proof is always on the prosecution, Ortiz had the power to subpoena both Marrero and Stratford if he thought their testimony would help his case, and that Ortiz in fact had put on a case that did not include testimony from either Marrero or Stratford.
Ortiz faults his lawyer as well for having failed to insist that the court give an instruction on the dangers of misidentification, of the sort described in United States v. Fernandez, 456 F.2d 638, 643-44 (2d Cir. 1972). First, it is by no means certain that such an instruction would have been appropriate in this case, given the closeness of the contact between Ortiz and the undercover officer, and Ortiz's distinctive clothing. If such an instruction had been given, such factors unfavorable to Ortiz simply would have been stressed. Moreover, Ortiz's lawyer did argue that there were reasons to doubt the identification, including that Stratford was arrested at the same time. (Tr. 285-86) He may well have wanted his own words rather than the court's instructions to present that issue to the jury.
Ortiz claims that his lawyer failed to argue to the jury that there were neither photographs nor recordings of the drug sale, and that no incriminating fingerprints were taken from the package of drugs (Petition at 4d), but he overlooks his lawyer's argument that all the jury had to go on was the word of the undercover officer, and that that was not enough to convict. (e.g., Tr. 272, 280) The argument Ortiz claims was wanting in fact was made.
Ortiz's lawyer vigorously attacked the credibility of the undercover officer, Inoa, arguing at one point that police officers have "good and bad . . . professional and personal reasons" to misrepresent the evidence. (Tr. 266-67) In response to that and other attacks on Inoa, the prosecutor argued in rebuttal that it was "outrageous" to suggest that Inoa would risk his career by lying in a federal court. (Tr. 291) Defense counsel's objection to that argument was overruled. (Id.) Ortiz argues that the prosecutor's comments constituted improper vouching for a witness and thereby denied him due process, and, in disregard of the record, that his lawyer was ineffective for having failed to object. Here, Ortiz's position is doubly flawed: his lawyer did object, and the prosecutor's comments were not improper because they did not "imply the existence of extraneous proof." United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998).
Ortiz's claims of ineffective assistance of counsel also embrace his lawyer's failure to object to certain portions of the court's instructions. Thus, he asserts that the indictment was constructively amended at trial, and that his lawyer failed to object to that amendment. An indictment is constructively amended if its terms are effectively modified by the evidence or by actions of the court such that "there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment."United States v. Mollica, 849 F.2d 723, 729 (2d Cir. 1988) (quotingUnited States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986) (internal quotation marks omitted)). However, this doctrine permits "significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial," so long as the defendant was not misled as to an element of the crime. United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992) (quoting United States v. Heimann, 705 F.2d 661, 666 (2d Cir. 1983) (internal quotation marks omitted)). Here, the indictment charged Ortiz with distributing cocaine; during the charge, I referred to the substance involved as "crack" cocaine. (Tr. 318) Although Ortiz perceives in this difference a constructive amendment of the indictment, there was none. The indictment advised him that he was charged with selling a substance containing a detectable amount of cocaine on or about a particular date. Here, the distinction between cocaine and cocaine base or "crack" cocaine is meaningless, because "crack" cocaine tests positive for cocaine, and it is not an element of the crime that the substance be "crack" cocaine rather than powdered cocaine. Perforce, it could not have been constitutionally ineffective advocacy for Ortiz's lawyer to have refrained from making the futile argument that the indictment had been constructively amended. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (defense counsel is not required to make unavailing or frivolous arguments); Cabrera-Delgado v. United States, 111 F. Supp.2d 415, 417 (S.D.N.Y. 2000) (failure to make futile arguments cannot be considered ineffective assistance).
Ortiz finds further fault in his lawyer, and in the court as well, based on the standard instruction that there was no legal requirement that the government use any particular investigative techniques, but only that it prove guilt beyond a reasonable doubt. (Tr. 330) This instruction, Ortiz argues, invaded the province of the jury and his lawyer should have objected to it. The instruction in question is a standard and correct statement of the law, see, e.g., 1 L. Sand et al.,Modern Federal Jury Instructions, Inst. 4-4, at 4-24 (2002); United States v. Sanchez Solis, 882 F.2d 693, 697 (2d Cir. 1989).
In sum, what Ortiz presents as ineffective assistance of counsel either contradicts the record, or is simply the result of several tactical decisions, each of which seems entirely justified even in retrospect. In any event, given the overwhelming evidence against Ortiz, it is impossible to conclude that even if the steps Ortiz now urges had been taken, the outcome of the case would have been any different. See Strickland, 466 U.S. at 693-94.
To the extent that Ortiz argues ineffective assistance of counsel on appeal for failure to raise any of these issues, the result is the same. Because the Strickland test, including the need to show that the outcome of the proceeding would have been different had omitted issues been raised, applies as well to appellate counsel as to trial counsel, see, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), and because all of Ortiz's claimed failures by trial counsel have been shown to lack substance, there can be no claim that the outcome of the appeal would have been different had such insubstantial issues been raised.
* * *
For the above reasons, Ortiz's application to set aside his conviction and sentence is denied, and the petition is dismissed. For the same reasons, Ortiz has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2) (2000), and accordingly no certificate of appealability will issue.