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United States v. Ortega

United States Court of Appeals, Eighth Circuit

May 9, 2014

United States of America, Plaintiff - Appellee
v.
Porfirio Ortega, Defendant - Appellant

Submitted January 16, 2014

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For United States of America, Plaintiff - Appellee: Stephen R. Casey, Jeannette Suzanne Graviss, U.S. Attorney's Office, Saint Louis, MO.

For Porfirio Ortega, Defendant - Appellant: Eric W. Butts, Saint Louis, MO.

Porfirio Ortega, Defendant - Appellant, Pro se, Big Spring, TX.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

OPINION

Page 1021

MURPHY, Circuit Judge.

Porfirio Ortega was convicted by a jury of conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(b)(1)(A)(ii) and 21 U.S.C. § 846. The jury found that Ortega conspired to distribute five kilograms or more of cocaine, an amount which Ortega now disputes. Ortega also appeals the district court's[1] admission of 7.2 kilograms of cocaine seized from Ortega's coconspirators. We affirm.

I.

The Drug Enforcement Administration's (DEA) investigation of Porfirio Ortega began in 2010 in conjunction with the investigation of Gabriel Garcia Madrigal, a/k/a

Page 1022

" Chinto." The DEA learned that Chinto was distributing narcotics and enlisted the aid of informant George Tutuianu. On November 2, 2010, Tutuianu sought to purchase marijuana from Chinto, who directed Tutuianu to the house of his associate Porfirio Ortega. Tutuianu was unable to obtain marijuana from Ortega, but successfully purchased an ounce of cocaine. In the audio recording of this transaction, Ortega stated that the ounce was a portion of a " kilo and a half" of cocaine he possessed.

One week later Tutuianu called Chinto and inquired about purchasing more cocaine from Ortega. Chinto then called Ortega who responded he was not in town, but that he would call one of his nephews and tell Chinto where to go to make a purchase. The next day Ortega instructed Chinto to go to his garage where his nephew would sell him cocaine. While in the garage, Chinto and Tutuianu met with Felix Rodriguez-Arreola, a/k/a " El Don," who informed them that he was Ortega's drug supplier. Tutuianu bought two ounces of cocaine from El Don in exchange for $1,600 that had been given him by the DEA.

Tutuianu and Chinto again went to Ortega's house to purchase cocaine on November 23. While there, Chinto and Ortega had a conversation recorded by the wire Tutuianu wore, in which Ortega told Chinto that " they" were going to bring him a kilogram of cocaine and that he could sell a kilogram of cocaine that was seventy percent pure. Tutuianu purchased another ounce of cocaine from Ortega at this meeting. Then on ...


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