United States v. Ortiz-Orellana

90 F.4th 689

UNITED STATES of America, Plaintiff - Appellee, v. Juan Alberto ORTIZ-ORELLANA, a/k/a Chele, a/k/a Furia, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Minor Perez-Chach, a/k/a Minor Chach-Perez,a/k/a Little Bad, a/k/a Bryant Sacarias, Defendant - Appellant.

No. 16-4844

No. 16-4845

United States Court of Appeals, Fourth Circuit

Argued: September 19, 2023

Decided: January 10, 2024

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:13-cr-00496-RWT-2; 8:13-cr-00496-RWT-8)

ARGUED: Manuel J. Retureta, RETURETA & WASSEM, PLLC, Washington, D.C.; Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ, Highland, Maryland, for Appellants. Sangita K. Rao, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Thomas E. Booth, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Erek L. Barron, United States Attorney, Baltimore, Maryland, William D. Moomau, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before KING, Circuit Judge, and MOTZ and FLOYD, Senior Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Senior Judge Floyd wrote the opinion in which Judge King and Senior Judge Motz joined.

FLOYD, Senior Circuit Judge:

Defendants Ortiz-Orellana ("Ortiz"), Minor Perez-Chach ("Perez") (collectively, "Appellants"), and others, were convicted in 2016 by a jury of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d) (Count 1), and murder in aid of racketeering in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. § 1959(a)(1) (VICAR) (Count 6 and 8). Perez was also convicted of being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1) (Count 11); and being an alien in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(5) (Count 12). Ortiz was also convicted of VICAR conspiracy to commit murder, in violation of 18 U.S.C. § 1959(a)(5) (Count 7); discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 9); and murder resulting from the Section 924(c)(1) offense, in violation of 18 U.S.C. § 924(j) (Count 10).

Perez was sentenced to life imprisonment on Counts 1 and 6, and to 63 months' imprisonment on Counts 11 and 12, all to run concurrently. Ortiz was sentenced to concurrent terms of life imprisonment on Counts 1 and 8; a concurrent term of seven years on Count 7; and a ten-year term on Count 9 and life term on Count 10, concurrent to each other but consecutive to the other terms. Appellants Ortiz and Perez now ask that their convictions be reversed, and their sentences vacated and remanded.

For the reasons that follow, we vacate and remand Ortiz's sentence only as to Counts 9 and 10. We otherwise affirm Ortiz's and Perez's conviction and sentences.

I.

This case involves two consolidated appeals by Ortiz and Perez. Ortiz and Perez were charged with crimes related to their participation in a gang known as MS-13 and were charged with separate murders related to their involvement in MS-13 in Maryland.

A. Perez's Crimes - the "Shorty" murder

Jorge Moreno-Aguilar ("Moreno"), who was a co-defendant with Ortiz and Perez, Oscar Parada-Ramirez ("Parada"), and Melvin Marquez-Sanchez ("Marquez") were members of the Sailors clique, an MS-13 group in Maryland. A Sailors clique member, "Shorty," was a government informant and testified against MS-13 members in the 2000s. The head of Sailors, Juan Otero ("Otero"), "green-lighted" "Shorty," which authorized any MS-13 member to kill him on sight. S.A.¹ 127-28. On February 23, 2013, Perez called Parada, who said he saw "Shorty" at a nightclub and followed him. Parada joined and saw Perez repeatedly stab Nicholas Gonzalez ("Gonzalez" or "Shorty"), whose nickname was also "Shorty." He was not the informant known as "Shorty." Perez murdered the wrong "Shorty." Parada also slashed Gonzalez with a machete, and Gonzalez died from the attack.² In March 2013, Perez and two accomplices tried to rob a motorist. When the motorist refused their demands, one assailant hit him. J.A. 162-64.

B. Ortiz's Crime - the Mendez Murder

In 2013, Moreno, a co-defendant, told Otero, Parada, and Marquez that Erick Mendez-Orellana ("Mendez"), a rival gang member, lived near him. They decided to kill Mendez in an attempt to be admitted into the Sailors clique. On March 12, 2013, Ortiz and Moreno saw Mendez, his partner Maurisha Jackson, and two children come out of a laundromat near their home. Jackson took the children home, leaving Mendez alone. Once Mendez left the laundromat to travel home, Ortiz shot him three times in the head, killing him (Counts 8-10).

C. Investigation

On March 20, 2013, during an investigation of the Mendez murder, a state detective applied for a court order pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. § 2703(d), to obtain Ortiz's phone number from AT&T.³ Among the requested records was historical cell site location information ("CSLI") for the previous 30 days and for the next 60 days. J.A. 812-18. A state judge issued the order. The state judge found "probable cause to believe that the information" concerning Ortiz's phone number was "relevant and material" to the government's criminal investigation. J.A. 819.

On June 17, 2013, a federal prosecutor applied for an order pursuant to § 2703 to compel AT&T to provide CSLI for Perez's phone number for a 60-day period (Feb. 2 to March 31), including the February 23, 2013, "Shorty" murder. A federal magistrate judge granted the application, finding that the government had offered "specific and articulable facts showing that there are reasonable grounds to believe that the records and other information sought are relevant and material to an ongoing criminal investigation." J.A. 853-54.

D. Court Proceedings

Multiple defendants, including Ortiz and Perez, were indicted in district court in Maryland. Many disputes in this case centered around cell tracking data the prosecution used to prove the crimes. During a pretrial hearing, Ortiz requested suppression of data obtained by "GPS/GEO tracking" to locate him and argued the SCA order did not authorize that technique to track him. During a motions hearing, the trial judge stated that defendants can assume that when any individual defense attorney makes an objection, "all [will] be deemed to have joined in it." On that same day, the judge stated, "in terms of motions to adopt, I will grant those." "I will deem that you've joined in other motions to the extent that you have standing to do so." J.A. 93. The judge denied the motion to suppress.

At trial, the government presented AT&T cell phone records of Ortiz, Perez, and various other individuals. J.A. 318-458. The government offered three charts (SC1, SC2, and SC3) that listed cell phone calls to and from various phone numbers, including those of Ortiz, Moreno, and Perez, based on evidence previously admitted. The government intended to use the charts to map out the locations of the defendants during each murder. Appellants objected to the admission of the charts, and the court directed the government to remove defendants' names from the charts but allowed the summaries to show location data. J.A. 473-74. The court ruled that the government could use names associated with the phones during closing argument based on independent evidence establishing those facts. J.A. 474.

Later, the court ruled that under Fed. R. Evid. 1006 the charts would not be admitted into evidence, but the government could use the charts to summarize previously admitted cellular record evidence. Before FBI Special Agent Joseph Simms ("Agent Simms") testified using the charts regarding subscriber information and location data from cellular records, the court instructed the jury that the charts were not admitted into evidence but were merely an "illustrative aid" to assist the jury in understanding the evidence. J.A. 577-78, J.A. 584.

The court further provided jury instructions that the charts were "no better than the independently admitted evidence" and that the jury should not give them greater consideration than the admitted evidence because the charts did not constitute "independent evidence." J.A. 644. Finally, it instructed the jury to consider the charts only "if they were of assistance to you in analyzing the evidence and understanding the evidence." J.A. 644.

Following a 14-day trial, the jury convicted Ortiz and Perez of conspiracy under RICO and murder in aid of racketeering in violation of VICAR. Perez was also convicted of being a felon in possession of a firearm and ammunition. Ortiz was convicted of VICAR conspiracy to commit murder, discharging a firearm in furtherance of a crime of violence, and murder resulting from a crime of violence (Counts 9 & 10). Perez was sentenced to life imprisonment on Counts 1 and 6, and 63 months' on Counts 11 and 12, all to run concurrently. Ortiz was sentenced to concurrent terms of life imprisonment on Counts 1 and 8; a concurrent term of seven years on Count 7; and a ten-year term on Count 9 and life term on Count 10, concurrent to each other but consecutive to the other terms. The trial court stated it imposed the consecutive sentence on Count 10 because it was required to do so under Fourth Circuit caselaw. S.A. 232-36. Ortiz and Perez timely appealed.

II.

Appellants Ortiz and Perez now ask us to vacate their sentences and remand for sentencing. First, Appellants submit that the government seizure of CSLI without a warrant violated their Fourth Amendment rights. Second, Ortiz and Perez assert the district court erred in allowing the use of summary exhibits and failed to provide a limiting instruction...