Citations
- 987 F.2d 920
Full opinion text
ALTIMARI, Circuit Judge:
Defendant-appellant Alexis Miranda-Ortiz (“Ortiz”) appeals from a judgment of the United States District Court for the Southern District of New York (Mukasey, J.) imposing a minimum ten-year sentence pursuant to 21 U.S.C. § 841(b)(1)(A) (1988) following Ortiz’s conviction for conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846 (1988). In an earlier appeal, this Court affirmed Ortiz’s conviction but vacated the original sentence and remanded for resentencing. See United States v. Miranda-Ortiz, 926 F.2d 172 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991) (“Ortiz /”). On appeal, Ortiz argues that he should not be held accountable for the amount of cocaine distributed in the conspiracy prior to his participation in it, because he had no reasonable knowledge of the amount that had been sold.
For the reasons set forth below, the judgment is vacated and the ease remanded for proceedings consistent with this opinion.
BACKGROUND
Ortiz met co-defendant Luis Martinez in a restaurant in late 1987. The two men used cocaine together, and Ortiz told Martinez that if Martinez should ever need drugs he should call Ortiz. The two men exchanged beeper numbers. A year later, they inadvertently met again at a movie theater, and Ortiz again mentioned that Martinez should call Ortiz if Martinez needed drugs. As with the first meeting, the two exchanged beeper numbers and this time also traded telephone numbers. During these meetings, they did not discuss drugs with any degree of specificity as to amounts.
Martinez had been supplying George Zlotkiewicz with cocaine since 1985, two years before Martinez met Ortiz. By November 29, 1988, Martinez had sold Zlot-kiewicz cocaine four or five times, each sale involving approximately one kilogram. Martinez had obtained all of this cocaine from a single supplier, Sergio Gil. There is nothing in the record to indicate that Ortiz knew specifically about these transactions.
On November 28,1988, Zlotkiewicz asked Martinez to sell him another kilogram of cocaine. Unbeknown to Martinez, Zlot-kiewicz at this time was a government informant, the result of a plea bargain stemming from his October 1988 arrest for selling cocaine. Martinez agreed to supply Zlotkiewicz, and said that he would call Gil, his source. When Gil was unable to supply the kilogram of cocaine, Martinez called Ortiz.
Martinez and Ortiz met the next day. Martinez asked Ortiz if he could supply a kilogram of cocaine that day, explaining that his regular source was unable to supply it. Ortiz asked if the buyer was reliable, and Martinez responded that he had known Zlotkiewicz for four years and that Zlotkiewicz was trustworthy. Ortiz agreed to obtain the cocaine.
When the two attempted to deliver the cocaine, they were arrested. They were both indicted originally in December 1988 for one count of possession with intent to distribute over 500 grams of cocaine, and one count of conspiracy to distribute over 500 grams of cocaine. A superseding indictment was filed in July 1989, realleging the distribution count and charging that the conspiracy had begun in 1985 with the sales by Martinez to Zlotkiewicz. The superseding indictment also specified that the object of the conspiracy was distribution of more than five kilograms of cocaine. It added as overt acts the sales by Martinez to Zlotkiewicz from 1985 to 1988.
Martinez pleaded guilty to the distribution count and agreed to cooperate with the government. Ortiz proceeded to a jury trial in the United States District Court for the Southern District of New York (Muka-sey,