Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Ortega

United States Court of Appeals, Fifth Circuit

April 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ADOLFO ORTEGA, Defendant-Appellant

         Appeal from the United States District Court for the Western District of Texas

          Before KING, JOLLY, and PRADO, Circuit Judges.

          KING, Circuit Judge:

         Defendant-Appellant Adolfo Ortega pleaded guilty to charges of possession with intent to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. On appeal, Ortega argues that the district court erred in denying his motion to compel disclosure of the identities of confidential informants and his motion to suppress. Ortega also argues that the factual basis of his guilty plea was insufficient to support the firearm conviction. Because additional fact findings related to the motion to suppress are necessary, we VACATE the convictions and sentences, and REMAND the case for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Search Warrant

         On April 19, 2013, San Antonio Police Officer Matthew Parkinson secured a state search warrant for the home of Defendant-Appellant Adolfo Ortega, who was suspected by Parkinson to be trafficking cocaine. The search warrant was supported by an affidavit signed by Parkinson. In his affidavit, Parkinson explained that he had received information from a confidential informant about Ortega's alleged cocaine possession:

Affiant did on the 18th of April, 2013 receive information from a credible and reliable person who has on previous occasions given Affiant information regarding the trafficking and possession of controlled substances which has proven to be true and correct but whose identity cannot be revealed for security reasons.
The said credible and reliable person stated that they did within the last 48 [hours] see a controlled substance, to wit Cocaine, in the possession of the aforesaid Defendant[] Ortega . . . inside the location at [the address for Ortega's house].

         Parkinson also stated in his affidavit that surveillance of Ortega's house revealed that an unspecified number of individuals would occasionally arrive and enter Ortega's house for short periods of time or engage in a hand-to-hand transaction with someone from the house, and "[t]hese types of behaviors are consistent with the buying and selling of narcotics."

         When Parkinson and other officers executed the search warrant, Ortega led the officers to a shed in his backyard, which contained more than 3, 000 grams of cocaine. Ortega then led the officers to a closet in his house where two handguns were located, one on the top shelf and one in a jacket hanging in the closet. A weight scale, several baggies of cocaine, and a safe (which contained approximately $45, 000 in cash) were also in the same closet as the handguns. Ortega was indicted for (1) possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

         B. Ortega's Motion to Suppress and Motion to Compel Disclosure

         On March 27, 2015, Ortega filed two motions: (1) a motion to suppress and request for a Franks hearing, see Franks v. Delaware, 438 U.S. 154 (1978), and (2) a motion to compel disclosure of the identity of a confidential informant. In his motion to suppress, Ortega argued, inter alia, that he was entitled to a Franks hearing because Parkinson's affidavit contained the false statement that a confidential informant had seen cocaine in Ortega's possession and residence within the past 48 hours. With the motion, Ortega included his own affidavit stating that, besides himself, only his wife and his in-laws had entered his house during those 48 hours. In other words, Ortega argued that the confidential informant's tip must have been false because the confidential informant could not have seen cocaine inside his house during that time given that the confidential informant did not enter the house (assuming that neither his wife nor in-laws were the confidential informant). In his motion to compel disclosure, Ortega contended that the confidential informant's identity should be disclosed because the confidential informant's allegations were the sole support for the search warrant.[1] According to Ortega, "[s]ince [the confidential informant] is the sole participant in this case, his testimony and therefore access to him becomes paramount to [Ortega's] defense."

         The district court referred Ortega's motions to a magistrate judge. On April 13, 2015, the magistrate judge held an evidentiary hearing on the motions.

         i. Testimony During the Hearing

         During the hearing on Ortega's motions, Parkinson, Ortega, and Ortega's wife testified. Parkinson testified that he first learned about Ortega at the end of 2012 from a confidential informant (CI-1) who told Parkinson that Ortega was involved in distributing cocaine in San Antonio. After learning this information, Parkinson did not pursue further investigation of Ortega besides some limited research. In April 2013, however, a different source brought up a nickname for Ortega, and Parkinson decided to move forward with the investigation. Specifically, Detective Mario Jacinto, another detective in Parkinson's office, had a confidential informant (CI-2) who was familiar with Ortega's alleged drug trafficking activities. Parkinson identified CI-2 as the confidential informant referenced in his affidavit-i.e., CI-2 had seen cocaine in Ortega's possession inside Ortega's house within the past 48 hours and had provided Parkinson with reliable information in the past. Parkinson further explained how CI-2 had seen Ortega in possession of cocaine: CI-2 had driven his friend (Person 4) to Ortega's house so that Person 4 could purchase cocaine, and when they arrived, Ortega emerged from his house carrying cocaine and engaged in a hand-to-hand sale with Person 4 while Person 4 and CI-2 remained in the car.[2]

         Notably, Parkinson testified that he had not actually worked with CI-2 previously. Rather, CI-2 had worked with Jacinto, and Jacinto told Parkinson that CI-2 had proven to be very reliable in the past. Parkinson also testified that he did not actually speak with CI-2. Instead, CI-2 conversed with Jacinto mostly in Spanish, a language ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.