United States v. Ortega-Rodriguez

1993 WL 13136433 (11th Cir.)

For opinion see 13 F.3d 1474, 1993 WL 60980

United States Court of Appeals,

Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

Jose Antonio ORTEGA-RODRIGUEZ, Defendant-Appellant.

No. 91-5083.

June 23, 1993.

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

Reply Brief of the Appellant Jose Antonio Ortega-Rodriguez

James R. Gailey, Federal Public Defender, By: Stewart G. Abrams, Assistant, Federal Public Defender, 301 N. Miami Ave., Room 321, Miami, FL 33128-7787, (305) 530-7000 (Ext. 157), Attorney for Appellant

This Case is Entitled to Preference, (Criminal Appeal)

*i TABLE OF CONTENTS

TABLE OF CONTENTS ... i

TABLE OF AUTHORITIES ... ii

STATEMENT OF THE ISSUE ... 1

ARGUMENT:

ISSUE:

THIS COURT'S FINDING OF LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF AN IDENTICALLY SITUATED CO-DEFENDANT, WHEN COUPLED WITH THE GOVERNMENT'S CONFESSION OF ERROR, SUPPORTS REACHING THE MERITS OF MR. ORTEGA'S APPEAL ... 2

CONCLUSION ... 4

CERTIFICATE OF SERVICE ... 5

*ii TABLE OF AUTHORITIES

Cases:

Ortega-Rodriguez v. United States, 113 S.Ct. 1199 (1993) ... 4

United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990) ... 3, 4, 5

Young v. United States, 315 U.S. 257 (1941) ... 3

*1 STATEMENT OF THE ISSUE

ISSUE

*2 ARGUMENT AND CITATION OF AUTHORITY

ISSUE

Based on its review of the trial transcript the government concedes that Mr. Ortega is situated identically to co-defendant Becerra-Flores, whose convictions were reversed due to legally insufficient evidence. Further, the government concedes that Mr. Ortega should receive identical treatment if this Court reaches the merits of his appeal. (Gov't br. at 16).

The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. The public interest that a result be reached which promotes a well ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties.

*3 Young v. United States, 315 U.S. 257, 258-59 (1941).

In the instant case, this Court has examined the record and determined that the evidence is insufficient to support the conviction of an identically situated co-defendant. The error which the government confesses is based upon this Court's independent examination of the record in this case. See Untied States v. Mieres-Borges, 919 F.2d 652 (nth cir. 1990). Further, although Mr. Ortega was not a party to the Mieres decision, the Mieres decision is replete with references to all defendants.

The government argues, however, that Mr. Ortega's flight affects the appellate process because of the necessity that this Court evaluate Mr. Ortega's claim that he is factually indistinguishable from co-defendant Becerra. The government also notes the required efforts of counsel to prepare appellate briefs. The government opines that these factors still may support dismissal of Mr. Ortega's appeal.

Mr. Ortega notes that his insufficient evidence claims are precisely what this Court would have reviewed as to him in a joint appeal with his co-defendants. Mr. Ortega asks for the same consideration that he would have otherwise received, albeit at a later time.

Finally, dismissal is inappropriate based on the facts and circumstances of this particular case. Mr. Ortega has been in custody for almost 37 months since his arrest on May *4 25, 1990. The government concedes that Mr. Ortega is legally not guilty based on Mieres. Moreover, Mr. Ortega's act of judicial defiance occurred before the district court, not before this Court. The district court has vindicated its authority for Mr. Ortega's act of defiance, which occurred prior to the filing of this notice of appeal, by sentencing him to a term of incarceration of 21 months to be followed by a three-year term of supervised release. This sentence remains undisturbed if this Court reaches the merits of Mr. Ortega's appeal and reverses his convictions.

In sum, Mr. Ortega has been punished by the district court for his fugitivity. Mr. Ortega already has served 16 months in excess of the district court's sentence for this conduct. The government concedes that the evidence against co-defendant Becerra and Mr. Ortega is virtually identical and acknowledges, as Justice Stevens notes, that judicial efforts may be minimized through reliance on the panel decision in Mieres. See Ortega-Rodriguez v. United States, 113 s.ct. 1199, 1209 (1993); Gov't br. at 12, 14.

CONCLUSION

In light of the facts and circumstances as to this particular case, Jose Antonio Ortega-Rodriguez respectfully urges this Court to reach the merits of his appeal and to *5 reverse his convictions based on the Mieres decision, the government's concessions, and the lack of legally sufficient evidence in this case.

Appendix not available.