United States v. Rosa Ortiz
496 F.2d 705
2d Cir.
1974
Check Treatment

*1 mоny insignificant trial, defendants Brawer ex- On Ignomirello viz., ception, knew of the three Canadians Welsch’s claim Mau- attempted investing participation in the celli was and their interested in opportunity firm, Full to obtain Canadian sale. was not interested testimony, selling been benefi- the Bills. it would have Furthermore, cial, аvailable. Kre- was Judge Pollack summarized the effect dependent upon guilt shik’s was not of non-disclosure as follows: testimony. “The Canadians’ Canadians perspective, Placed in the brouhaha because, aided Kreshik would not have created over the non-disclosure of the everyone agrеes, Kreshik did not deal appears 1969 statements to be a con- directly F.Supp. them.” at wholly lacking trived issue in merit. 166. appeal was It created of on out a tis- themselves, As to the 1969 statements legerdemain of sue confusion and on appellants’ inconsistency since claim of part. someone’s centers discount around the and rate any part As to bad faith on of the (65%-90%) at which the thereof stolen Judge prosecutor, Pollack held: Judge allegedly offered, Bills Pol- were prosecutor did not know the. lack found that: contradictory existence of The 1969 statements of the Canadians validity which would сast doubt exculpatory. were not fact of Maueelli’s discount evidence which elaboration, In further he said: presented No contradic- trial. tory appears none of Riel’s evidence in fact four “statements” specifically price does he 1969 statements. state the which Maucelli asked for the Bills nor Judge findings Armed with Pollack’s does he contradict Maucelli’s trial tes- opinion, we are satisfied that timony original price principles has been no violation of the value, of face less 85% Brady, swpra, 90% and affirm all convictions. commission, Riel’s own and that price final of face valuе. 65% Bubic mentioned a discount as to 90%

which Pollack said: opening gambit

This recitation 90%, negotiations with further is

follow, consistent with Maueelli’s testimony. trial Bubic’s statement America, UNITED STATES does not consequently advert to and Appellee, specifically deny does not the 65% figure authorized Brawer. Fur- Defendant-Appellant. ORTIZ, Rosa thermore, insofar as the nonincrimi- No. Docket 73-2523. natоry dealings his with Mau- concerned, g., celli are e. the dates of Appeals, United States Court of travel, Maucelli’s Bubic’s statement Circuit. Second consistent with Maucelli’s trial testi- Submitted Feb. mony. May 6, Decided Concerning Welsch, Judge' said: neither two “statements” of Joseph Welsch, 5B, 5C, 5A, exhibits herein,

and 6 does he refer price which Maucelli ‍‌‌‌​‌​‌‌​​‌​‌​‌​‌​‌‌‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​​​‌‌‌‌​​‌‍asked for the Furthermore,

Bills. the transactional

facts which Welsch does are recount

consistent with trial testi- Maucelli’s *2 conspiracy a nar- to distribute

crime of drug U.S.C., of 21 cotic in violation Sec- appeals. The claim Rosa Ortiz tion agent” merely “procuring that she was by precluded decision our recent Masullo, 489 F.2d 217 States United 1973). (2d Cir. de her own

Ortiz testified at the trial a direct fense and credibility her testi conflict of mony between for the that of the witnesses prosecution. trier of the issues As the Judge fact, did believe Gurfein beyond a a fact Ortiz and he found as and her co- reasonable doubt that Ortiz willing “a defendant had demonstrated committing predisposition ness disposed of the claim the crime.” This entrapment as a de was established fеnse as a matter of law. sig- peripheral of no than

It is more by mere chance nificance that agents spoke that the narcotics with Or- apartment to tiz to the when came husband, suspect- talk with the dealing ed of in narcotics. And true time interval be- same is tween the first interview with Ortiz for the the ultimate transaction larg- of heroin much chase amount originally er than mentioned government agent. Judge quote Gurfein’s detailed We findings question of fact on the entrapment:1 Kinsey “When Thomas first Agent Franklin Ortiz’s un- setting pretense up der the a narcot- Atty., Wile, New Asst. U. S. Richard Manny Macia, Ortiz of- ics sale with one Atty., (Paul Curran, City S.U. York J. objections. And Frаnklin fered Y., Andrew for the S. D. N. S. could sell him asked Ortiz whether she Atty., York Schaffer, New Asst. U. S. heroin, replied an ounce of Ortiz without appellee. brief), City, ‍‌‌‌​‌​‌‌​​‌​‌​‌​‌​‌‌‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​​​‌‌‌‌​​‌‍hesitation that could. When asked City, defend- Jay Gold, York New kilo, supplying an of a about ant-appellant. replied “I would have to ask husband MEDINA, like, Manny you you MANSFIELD If Before Macia. Judges. evening buy OAKES, return this Circuit could willing Finding sup- Ortiz so ounce.” Judge: MEDINA, Circuit ply not to Franklin chose pro- buy ounce, until she but to wait Having convicted larger Thus, quantity. over jury, cured sitting Gurfein, transcript omitted. are trial References following he her a next five called total weeks December inquiring times Franklin five whether returned supрlier. money contacted her On December Torres asked for the and Frank- Franklin, informed lin asked to see “the stuff.” Torres re- phone calls, sample course of one of trieved these of heroin. Franklin thereupon the heroin would be available. went *3 $4,000 downstairs and returned with interim, In the Carmen Torres Agent Special Reilly. Nelson One Gar- live to with Ortiz. Ortiz testified come emerged cia then from the bedroom with days that a few after Torres had started glassine envelope a in one hand and a living there, she informed Torres about paper bag white other. the The de- Initially request Franklin’s for heroin. placed fendаnts were then under arrest.” “just drop” it Torres let but afterwards reject- We see no basis whatever for “Carmen said that she was [Torres] ing any findings. somebody.” going of these see if to she could find willingness Torres’ to become Affirmed. prior volved occurred to contact Agent had with On OAKES, Torres Franklin. Judge (dissenting): Circuit 2, December when Franklin called Or- respect With due to brethren and tiz’s Torres answered the judge, the trial I believe that the Gov- phone, identified herself as “Gloria” ernment has failed to meet its burden of told Franklin “we heard haven’t -from beyond proving a reasonable doubt that going guy yet our but I’m him to- to see appellant predisрosed Ortiz was to com- night.” phone Subsequently Oritz’s was mit the crime which the Government in- disconnected. Accordingly, duced her to commit. I would reverse. appeared in

On December Franklin apartment, at Ortiz’s aft- entrapment In this circuit ais bifur only er requiring brief discussion with Ortiz be- defense, cated a defendant to presеnt. cause Ortiz’s sister-in-law was demonstrate that he has induced to days later, When Franklin returned two by Government; commit the crime the along Agent Rottinger. he does, if he then the Government is re Rottinger proceeded Franklin to quired prove beyond a reasonable drive defendants Torres and Ortiz predis doubt that the dеfendant was directing supplier, with Torres the posed commit the crime. United route. The the Rosner, defendants descended 1213, States 485 F.2d v. 1221- Agents’ (2d car and left petition view. It was Cir. cert. testimony (U.S. Ortiz’s never met filed, 7, that she had 42 U.S.L.W. 3474 Jan. supplier 1974) 74-1062); before and that (No. United States v. Riley, (2d Torres who knew 955, him be a narcotics 363 F.2d 957-958 Cir. 1966); Sherman, dеaler. After a the defend- few minutes United States v. returned, quoting price $1,600 ants 880, (2d (L. 1952) F.2d 882-883 Hand, J.). for three returned ounces. After See also United States v. Rus sell, advised Franklin 93 S.Ct. 36 L. U.S. (1973). mon- Torres he would not have the Ed.2d The defendant’s bur ey day.' demonstrating by until Torres then den of inducement require showing ar- asked to be driven back to make new Govеrnment does not rangements. driving trickery degree After her back or fraud or even the place, pressure exerted, the same descended and re- see United Torres States report Riley, turned with the that Franklin at 363 F.2d but rather in showing “soliciting, could have three of heroin for ounces cludes the of mere $1,600 initiating, broaching sug proposing, and an of a kilo of cocaine gesting $2,000. for an additional ‍‌‌‌​‌​‌‌​​‌​‌​‌​‌​‌‌‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​​​‌‌‌‌​​‌‍Franklin commission the offence Ortiz’s, agreed. charged” by They drove back the Government. [sic] Sherman, United States 200 F.2d by first offered the Government Here the offer pre- temptation repeatedly then evi buy is sufficient narcоtics upon involved in a sumed to become to shift burden inducement dence of enterprise beyond which never would prove criminal Government predis have existed without the Government’s doubt reasonable But, point- active creative and force. posed narcotics. to sell out, was on the еd the burden Govern- predisposition or such The evidence of prove beyond doubt a reasonable ment to generally circumstan- propensity will predispo- that Ortiz had such a criminal magic necessity, there is tial of sition. deciding predisposi- formula for In each present not. and when tion was supрorting the Gov by normally conclusion, made case that testimony position ernment’s judge in a trial jury but here he that when upon all jury, must rest him ounce of could sell *4 is, perhaps, no There in the case. “could” if back that said he came she weighing guide of those to the better any night.1 re demonstrate Failure to language of Chief Justice the than facts Hughes may of indeed be evidence luctance States, in v. Sorrells United hardly predisposition,2 it can but 210, 216, L.Ed. 435, 451, 53 S.Ct. U.S. treated conclusive. See United States as (1932): Sherman, at 882. 200 F.2d evidence ad- raised and the the issues contrary is sub evidence to the The pertinent con- duced must be First, there is no evidence stantial. trolling question the defend- whether any previous that had whatever person innocent a otherwise ant is dealings drugs, or even that in criminal seeking government to is whem the agent thought the Rather she had. the alleged punish for an offense which gone apartment agent, to had activity product of the creative the of Manny Macia or Ortiz’ meet a certain husband, officials. its own waiting for a half hour after only of them, a mother accepting then asked Ortiz ease, the In Govern- this him welfare, sell an if she could true, two on one fact evidence as ment’s say not even did proposition ounce of heroin. She supports that Ortiz at all the immediately; supply narcotics, the ounce she could predisposed while to sell was agent rather, the to return evidence, presented she other either all the evening. asked about that When or uncontradicted (4.4 ounces), she could supрorts opposite of a kilo it, the conclusion: only say, “I I would have to don’t know. with- that an innocent Ortiz was Manny Dur- or Macia.” intent until ask husband out criminal motivation or agent Kinsey, the first federal the evidence in the 1. are bound to view the We apartment Government, light but for the time pose the Ortiz the to most favorable to Ortiz, meeting Smalls, or Alberto of one Macia 363 F.2d United States appellant’s denied, after ar- (2d A half hour husband. cert. 385 U.S. Kinsey riving (1967), Bronx but it at the Ortiz’ 17 L.Ed.2d 675 87 S.Ct. car. move the Ortiz she the to Ortiz denies that must be noted that During Kinsey’s agent any supply the conversation agreed absence with to the agent place agent which the in course of took the did not return it is a fact that the night, spent sell him an ounce of if site could tele asked Ortiz rather five weeks that but agent, provide and, according re- phoning importuning the Ortiz, to her heroin to plied could. that she him with narcotics. majority experi- may Government nor Neither of lack of It alsо be evidence suggests opinion trade, which, that the fact Ortiz’ trade, in in from ence the narcotics drug apparently dealing judge’s experience was husband these in this cases, being it, readily jail is cir- a of result for a seller it seems unusual predisposition. complete stranger. capacity of her сumstantial his a to admit dealer, case, sure, a In this to be heroin trying agent, large ing weeks the one. Sherman the informer five up suspect defendant, five or six no to set sale made calls had reason to Ortiz, were of which unsuccessful. but rather him all chose because his situ- try Indeed, apparent was not ablе ation as an Ortiz herself addict to in- anyone her the heroin. find to sell volve him in a narcotics sale. Here the roommate, subsequent Ortiz, suspect her Rather it was no reason to Torres, rather, waiting she had to whom confid- but Carmen after in vain for agent’s offer, suspect, try find who set out to he did ed the those chоse to finally re- merely source for the and did find a volve Ortiz because was December, quested capital- heroin. there. In Sherman the informer phone upon yet up, Ortiz’ was discon- ized sale set defendant’s known weak- sign nected, hardly sympathies affluence of nesses to overcome making dealer, was resistance to heroin but Here sale. Or- position disheartened; home. tiz’ he went Ortiz’ as a destitute mother two nothing Only who, jail, Still was finalized. because husband exist, days did per returned two later forced to her $62.50 check, obviously him pro- and Torres have drive them week welfare part temptation ne- Bronx for “firm vide little another resistance gotiations.” big money coming up was set for five an offer “deal” agents when the with a o’clock little heroin. In Sherman the in- get $1,600 prevail three former could not forced on the de- agreed ultimately upon, period fendant over ounces time effect a *5 sale; Torres alone who with them the here drove for five weeks was again arrange deal, relatively Bronx for a new unable to make even a small purchase despite repeated and it with Torres alone that from Ortiz en- agent arranged an treaties. In Sherman there was evi- prior ounce of cоcaine to added to the deal. dence be defendant’s sale and Finally, agents possession came to narcotics. Here none; most, Ortiz’ and where sup- Torres’ said she “could” door, ply Torres answered the them with an In ounce. Sher- money, and man had the then showed the defendant acted on his оwn aid; them some the narcotics. Ortiz here Ortiz was unable on along source, indicating and arrested her own to find men, experience, knowledge with Torres and lack of two or motiva- tion, Torres, played Torres had and Ortiz, the narcotics not major role in the actual transaction finally place whiсh did take with the Upon Government, these facts the it agents. beyond me, prove seems to has failed short, a reasonable doubt that it had cor- not the evidence did not indicate rupted an innocent who had no that Ortiz awas ‍‌‌‌​‌​‌‌​​‌​‌​‌​‌​‌‌‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​​​‌‌‌‌​​‌‍heroin dealer from propensity agents predisposition merely to cоmmit whom the made a ; the crime. rather Sherman United chase it indicates that the States, 369, provided poor 356 U.S. L. the idea to a mother, S.Ct. Supreme (1958), Ed.2d jail, whose in Court husband was how to make guilty large overturned a money by verdict because on a her—sum of sell- —to proved by ing something anyone probably it that in satisfy neighborhood burden, had failed to that so could find if he tried. Or, as a matter of law the defendant was the words of Sherman United guilty. States, entitled to a verdict of not Sher- 356 U.S. at Ortiz was not an “unwary man sales, “unwary involved too heroin but criminal” inno- cent,” “Congress Sherman the defendant made a number could have not of sales over a tended time the informer. that its statutes were to en- sale, by tempting Here there was persons and that not a forced innocent into of Circuit violations.” words Butts v. Sanborn in the case of States, (8th United F. approval quoted 444-445, Sorrells, Court in 287 U.S. at directly my mind, applicable

are,

here:

The first duties of the officers punish prеvent, not to law are to duty incite to It is not their

crime. purpose crime for the

and create sole prosecuting punishing it. strongly

Here the evidence tends conclusively so,

prove, not do if it does endeavor first and chief create, cause, crime in

was to order punish it, unconscionable, it

contrary policy, public punish a of the land to

established law

man of an offense commission of the like ‍‌‌‌​‌​‌‌​​‌​‌​‌​‌​‌‌‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​​​‌‌‌‌​​‌‍which he had never been deed, thought

guilty, inor either evidently have never

guilty of the law had of if the officers inspired, incited, persuaded, and attempt it.

lured him to to commit *6 Plaintiff-Appellant, GRAYSON,

Frank CO., Defendant-

CORDIAL SHIPPING Appellee. CO., Third

CORDIAL SHIPPING Party Plaintiff-Appellant, TERMINALS, INC.,

FEDERAL MARINE Party Defendant-Appellee. Third 73-1534,

Nos. 73-1557 73-1659. Appeals,

United States Court

Seventh Circuit.

Argued Feb. May 8,

Decided