United States Court of Appeals

For the Eighth Circuit

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No. 13-2043

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Porfirio Ortega

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 16, 2014

 Filed: May 9, 2014

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

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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’s1

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 "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

The Honorable Catherine D. Perry, Chief United States District Judge for 1

the Eastern District of Missouri. 

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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 December 13, Tutuianu drove Ortega to a trailer park. There,

Ortega provided Tutuianu with three ounces of cocaine.

Tutuianu made three more purchases of cocaine from Ortega: five ounces on

December 14, two ounces on December 20, and four ounces on January 4, 2011. On

January 12 Tutuianu brought an undercover officer to Ortega's house who purchased

three ounces of cocaine from him. The DEA then began to monitor Ortega's cell

phone calls on January 31. In February 2011, the DEA provided Tutuianu with a

cocaine press, which Tutuianu in turn gave to Ortega. Ortega and two others picked

the press up from Tutuianu's home and took it to Ortega's garage. 

In a conversation between Ortega and Tutuianu recorded on February 15,

Ortega stated that he had fourteen ounces of cocaine left and that he had made trips

to Chicago and Texas to acquire cocaine. Ortega and Tutuianu also talked about the

expected arrival of Ortega's supplier El Don, who was coming over to Ortega’s house

that evening. They calculated that Ortega could sell Tutuianu a kilogram of cocaine

for $23,000 if he paid up front and $27,000 if he paid after receiving the drugs. On

February 20, Tutuianu met with Ortega and El Don at Ortega's home. Ortega

produced a mold for the cocaine press to press cocaine into kilogramsized bricks, and

the three pressed two bricks of cocaine. El Don stated that while he had five

kilograms, he had only brought two over to Ortega's house. 

In a February 28 intercepted phone call between Ortega and a nephew, Ortega

instructed his nephew to meet with Misael Lopez-Rico in order to obtain cocaine

from him to sell to David Morales. Ortega explained that he had to call El Don to

authorize Lopez-Rico to give the nephew the cocaine. They then discussed the price

and how much they would make from the deal. Investigators observed Lopez-Rico

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and Morales enter Ortega's home; officers stopped Morales while he was driving

home but were unable to locate the cocaine. After the stop Morales called Ortega and

reached another of his nephews to report that the police had stopped the car but were

unsuccessful in finding the cocaine. 

Less than one month later on March 25, 2011, investigators learned that

Ortega's associate, El Don, had arranged to have cocaine delivered by Misael LopezRico from Kansas City to St. Louis. Agents stopped Lopez-Rico's car, and hidden

inside a secret compartment they found four bricks of cocaine wrapped in clear plastic

packaging and seven bricks of cocaine wrapped in blue paper packaging. Following

this incident, the DEA obtained a warrant to monitor El Don's calls. 

The government sent the substances seized from Lopez-Rico's car to a

laboratory for identification, where they were tested by chemist Kristen Beer. Beer

created two composite samples–one with the substancesin the clear plastic packaging

and the other with substances from blue paper packaging. Prior to trial Beer was

called into active duty military service in Afghanistan, making her unavailable to

testify. The government had another forensic chemist, Peter Ausili, retest the

composite samples. Ausili identified the substances to be cocaine which weighed

approximately 7.2 kilograms in total. 

On April 17, the DEA intercepted two telephone calls between Ortega and El

Don. In the first conversation El Don asked about whether a buyer needed “costly

chickens.” A DEA agent testified at trial that in this operation “chickens” was used

as a codeword for cocaine. Ortega told El Don that the buyer “is every third day . .

. once or twice a week.” El Don replied that Ortega should call the buyer and see

how much he needed, and then El Don could leave that amount with Ortega’s wife

for him to deliver. Ortega agreed to call the buyer. 

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In a second conversation that day, Ortega told El Don that he had “a better

situation.” At the time of this call Ortega was in a room with drug suppliers, and he

asked if El Don wanted to buy a “house” from them. The two discussed quantity and

price, and settled on El Don receiving “five” at a price of $26,000 or $26,500. The

DEA witness testified that the going price for a kilo of cocaine at the time of that

conversation had been $27,000. Ortega offered to put the suppliers on the phone, but

El Don instead said “No!Just tell them.” Finally Ortega asked “what about me?” and 

“[a]re you going to help me?” El Don responded that he would help Ortega, but the

record does not reveal whether he ever did. 

At Ortega's trial, DEA analyst Peter Ausili testified to his analysis of the 7.2

kilograms of cocaine seized fromLopez-Rico's car. Ortega objected to the admission

of the substances on the grounds that Ausili tested the composite samples and not

each bag individually. The district court overruled the objection and admitted the

exhibits containing the substances. The jury found Ortega guilty of conspiracy to

distribute five kilograms or more of cocaine. After the verdict Ortega moved for a

judgment of acquittal, claiming that the evidence wasinsufficient to find he had been

involved with five kilograms or more of cocaine. Ortega acknowledged that the DEA

had obtained 605 grams of cocaine from sales which Ortega made or assisted in

making but disputed that he was responsible for more. The district court denied the

motion for acquittal, and Ortega now appeals.

II.

Ortega first challenges the sufficiency of the evidence, contending that no

rational jury could have found he had participated in a conspiracy involving five

kilograms or more of cocaine. We review the sufficiency of the evidence in the "light

most favorable to the verdict" and reverse a conviction "only if no reasonable jury

could find that the elements of the offense have been proven beyond a reasonable

doubt.” United States v. Booker, 576 F.3d 506, 512 (8th Cir. 2009). The elements

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of conspiring to distribute drugs under 21 U.S.C. § 846 are (1) the existence of a

conspiracy, "i.e., an agreement to distribute the drugs," 2) the defendant's knowledge

ofthe conspiracy, and 3)the defendant's intentional joining of the conspiracy. United

States v. Polk, 715 F.3d 238, 246 (8th Cir. 2013) (internal quotation marks omitted). 

A defendant is liable for the reasonably foreseeable actions taken by

coconspirators in furtherance of the conspiracy "unless he affirmatively withdraws

from the conspiracy." United States v. Marquez, 605 F.3d 604, 611 (8th Cir. 2010). 

To establish withdrawal from a conspiracy, the defendant has the burden to

demonstrate that he took affirmative action by "making a clean breast to the

authorities or by communicating his withdrawal in a manner reasonably calculated

to reach his coconspirators.” United States v. Jackson, 345 F.3d 638, 648 (8th Cir.

2003) (internal quotation marks omitted). A showing of nothing more than that the

defendant has ceased activities "is not sufficient to establish a withdrawal from the

conspiracy." Id. 

Moreover, the "souring of a relationship between a defendant and his

coconspirators resulting in an end of the defendant's business relationship with the

conspiracy is insufficient to establish a withdrawal from the conspiracy." United

States v. Rodriguez-Ramos, 663 F.3d 356, 363 (8th Cir. 2011). InRodriguez-Ramos,

the defendant challenged the sufficiency of the evidence that he had conspired to

distribute more than 50 grams of methamphetamine. Id. The defendant's

coconspirator there had delivered 13 kilograms of methamphetamine after the two

had had a dispute. We determined that the defendant had neither informed the police

nor his coconspirator that he had withdrawn. Id. at 363–64. In fact the defendant had

pursued further dealings with his coconspirator after that delivery and thus was

responsible for the 13 kilograms which had been involved in the conspiracy of which

he "was a member and from which he had not withdrawn." Id. at 364.

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Ortega acknowledges that he was responsible for approximately 605 grams of

cocaine which DEA agents obtained from sales which Ortega made or assisted in

making, and that Ortega and El Don formed an agreement "early on" to distribute

cocaine. He contends, however, that he withdrew from this conspiracy following his

February 28, 2011 sale of drugs to David Morales. Ortega claims that the evidence

was insufficient to show his involvement with five or more kilograms of cocaine,

arguing that he had withdrawn before El Don organized the delivery of the

intercepted 7.2 kilograms of cocaine on March 25, 2011. 

Ortega argues that the sole evidence of a conspiracy existing at the time of the

seizure of 7.2 kilograms of cocaine on March 25, 2011 was the April 17, 2011 phone

calls between Ortega and El Don. In that call Ortega had arranged for El Don to buy

five kilograms of cocaine. Ortega's argument is unavailing. A conspiracy between

Ortega and El Don having been established by the government, the burden rested with

Ortega to prove that he affirmatively withdrew from it, not with the government to

prove the nonexistence of withdrawal. See Smith v. United States, 133 S. Ct. 714,

720 (2013) (holding that in passing 21 U.S.C. § 846, Congress left the common law

burden of proving the affirmative defense of withdrawal on the defendant rather than

requiring the government to prove nonexistence of withdrawal). 

We conclude that Ortega has not met his burden of establishing that he

withdrew from the conspiracy he had entered with El Don. The evidence he cites,

such as the fact that El Don told Tutuianu that he suspected Ortega might be working

with law enforcement and instructed Tutuianu to deal directly with El Don rather than

Ortega, is insufficient to prove that Ortega withdrew from the conspiracy. See

Rodriguez-Ramos, 663 F.3d at 363. Like the defendant in Rodriguez-Ramos, Ortega

continued the illegal relationship with his coconspirator following the date of his

alleged withdrawal, as shown by his attempt to arrange for El Don to purchase five

kilograms of cocaine. Ortega did not come forward to the authorities, nor is there

evidence that he informed his coconspirator El Don of his withdrawal from their

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conspiracy. See Jackson, 345 F.3d at 648. He istherefore liable for his coconspirator

El Don's reasonably foreseeable act of having Lopez-Rico deliver 7.2 kilograms of

cocaine in furtherance of the conspiracy. See Rodriguez-Ramos, 663 F.3d at 364.

 

III.

Ortega objects to the admission of three of the government's exhibits: the first

contained a composite sample and the substance which had been found wrapped in

four clear plastic packages seized from Lopez-Rico's car, the second contained a

composite sample and the substance which had been found wrapped in seven blue

paper packagesseized fromLopez-Rico's car, and the third contained the clear plastic

and blue paper wrappings. He contends that the admission of these exhibits violated

the Confrontation Clause of the Sixth Amendment because the testifying chemist,

Peter Ausili, tested composite samples which another chemist, Kristen Beer, had

produced from the substances seized in Lopez-Rico's car. 

TheSixthAmendment providesthat "[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const.

amend. VI. The Supreme Court has clarified that this amendment "applies to

witnesses against the accused—in other words, those who bear testimony." Crawford

v. Washington, 541 U.S. 36, 51 (2004) (internal quotation marks omitted). Thus,

under the Confrontation Clause testimonial statements are inadmissible unless the

testifying witness appears at trial or, if the witness is unavailable, the defendant had

a prior opportunity to cross examine him. Melendez-Diaz v. Massachusetts, 557 U.S.

305, 309 (2009). 

Ortega objected at trial to the admission of the physicalsubstancesseized from

Lopez-Rico's car; he did not object to the admission of any out of court statement by

a witness. To the extent that Ortega now argues that Ausili's testimony that Beer

created the composite sample was an out of court statement inadmissible under the

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Confrontation Clause, our review is for plain error. See United States v. Tenerelli,

614 F.3d 764, 772 (8th Cir. 2010). Ortega made no Confrontation Clause objection

to this statement at trial. Our first inquiry is therefore whether the district court

plainly erred by not sua sponte excluding Ausili's testimony that Beer created the

composite sample from the substances seized from Lopez-Rico's car. 

Ortega now seeks to attack the foundation for admission of the cocaine by

pointing to a gap in the chain of custody to question the authenticity of the sample. 

While Ausili's statement regarding Beer's creation of the composite sample was

relevant to the chain of custody, we have acknowledged that "chain of custody alone

does not implicate the Confrontation Clause." United States v. Johnson, 688 F.3d

494, 505 (8th Cir. 2012) (concluding that statement that lab assistant had checked

samples in and out of the lab is not a testimonial statement offered to prove the truth

of the matter asserted). The Supreme Court has explained that "it is not the case[] that

anyone whose testimony may be relevant in establishing the chain of custody,

authenticity of the sample, or accuracy of the testing device, must appear in person

as part of the prosecution's case." Melendez-Diaz, 557 U.S. at 311 n.1. Rather, "[i]t

is up to the prosecution to decide what steps in the chain of custody are so crucial as

to require evidence; but what testimony is introduced must (if the defendant objects)

be introduced live," and "gaps in the chain [of custody] normally go to the weight of

the evidence rather than its admissibility.” Id. (alteration in original) (internal

quotation marks omitted). Here, in the absence of an objection to admission of Beer's

out of court statement, we conclude that it was not plain error for the district court to

admit Ausili's testimony regarding the chain of custody for the composite samples. 

 

Ortega has no other viable Confrontation Clause basis for excluding evidence. 

He claims that this case issimilar to Melendez-Diaz, in which the government sought

to introduce certificates of analysis that contained the results of forensic analysis

rather than producing the analysts themselves to testify, 557 U.S. at 308–09, and

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011), in which the government

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sought to introduce a forensic report through the in court testimony of a scientist who

had not performed or observed the testing described in the report. The posture of

Ortega's case is significantly different from Melendez-Diaz and Bullcoming. In this

case the government had Peter Ausili test the substances found in Lopez-Rico's car

and he found them to be cocaine. Ausili also testified to the results of his analysis at

trial, where Ortega took the opportunity to cross examine him. The admission of

Ausili's testimony and report are therefore not barred by the Confrontation Clause. 

See Melendez-Diaz, 557 U.S. at 309. This was in stark contrast to both MelendezDiaz and Bullcoming, where the witnesses who had identified the substances were

not present at trial.

The original report by testing analyst Beer was not offered by the government

as evidence, nor did the government question Ausili regarding the results of Beer's

initial test. Instead, after Beer was called into active duty in Afghanistan, the

government had Ausili personally retest the substances and testify as to the results of

the test he performed. The Supreme Court has observed that this procedure complies

with the Confrontation Clause. See Bullcoming, 131 S. Ct. at 2718 (noting that the

government "could have avoided any Confrontation Clause problem by asking [the

analyst who appeared in person at trial] to retest the sample, and then testify to the

results of his retest rather than to the results of a test he did not conduct or observe."). 

Ortega had the opportunity to cross examine Ausili on the issue of whether or

not the samples he tested in fact came from the eleven packages seized from LopezRico's car. Such a challenge goes to the authenticity of the sample and the chain of

custody, and asthe Court acknowledged in Melendez-Diaz such questions bear on the

weight of the evidence. 557 U.S. at 311 n.1. The jury was free to decide whether the

substances admitted were part of the conspiracy Ortega was involved in or whether

they were in fact cocaine. And the jury in fact found that Ortega was responsible for

a conspiracy to distribute five kilograms or more of cocaine. 

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Finally, Ortega has put forward no other meritorious basis for his objection to

the admission of these exhibits. We review a district court's ruling on the

admissibility of evidence for abuse of discretion. United States v. Robinson, 617

F.3d 984, 990 (8th Cir. 2010). Evidence is admissible where there is "a reasonable

probability it has not been changed or altered," Johnson, 688 F.3d at 505, and we

employ a "presumption of integrity of physical evidence absent a showing of bad

faith, ill will, or tampering with the evidence," id. Ortega's objection to admission of

the exhibits was based on the fact that Ausili did not personally test each package of

cocaine, but instead tested the composite samples. Ortega has made no showing of

bad faith or evidence tampering, and we therefore presume the integrity of the

samples had been undisturbed. See id. The district court did not abuse its discretion

in admitting the exhibits. 

IV.

Ortega joined a conspiracy that distributed over five kilograms of cocaine and

from which he never withdrew. The district court properly denied Ortega’s motion

for acquittal and properly admitted the 7.2 kilograms of cocaine which the DEA

seized as part of its investigation into the conspiracy. Ortega’s Confrontation Clause

challenge to the admission of this physical evidence fails because the analyst who

tested and identified the substance as cocaine testified at trial, where Ortega had an

opportunity to cross examine him. 

We affirm the judgment of the district court. 

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