Title United States v. Ramos
Date 1998
By Alito
Subject Misc
Contents
Page 1
LEXSEE 147 F 3D 281
UNITED STATES OF AMERICA v. LAZARO ANTONIO RAMOS, a/k/a Tony Ramos
LAZARO ANTONIO RAMOS, Appellant
No. 96-7356
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
147 F.3d 281; 1998 U.S. App. LEXIS 13598
January 28, 1998, Argued
June 26, 1998, Filed
PRIOR HISTORY: **1 Appeal from the United States
District Court for the Middle District of Pennsylvania.
(D.C. Crim. No. 92-cr--00172). DISPOSITION: Affirmed. CASE SUMMARY:
PROCEDURAL POSTURE: Defendant sought review of an order of the United States District Court for the Middle District of Pennsylvania, which denied defen- dant's pro se motion, brought under 28 U.S.C.S. § 2255, asserting the evidence at trial was insufficient to support defendant's conviction for using and carrying firearms during and in relation to drug trafficking crimes, in viola- tion of 18 U.S.C.S. § 924(c)(1).
OVERVIEW: Defendant was indicted and tried before a jury for conspiracy to distribute cocaine in violation of 21
U.S.C.S. § 841(a)(1), distribution in excess of 100 grams of cocaine in violation of § 841(a)(1) and 18 U.S.C.S. § 2, distribution in excess of 100 grams of heroin in violation of 21 U.S.C.S. § 841(a)(1) and 18 U.S.C.S. § 2, and using and carrying firearms during and in relation to drug traf- ficking crimes, in violation of § 924(c)(1) and § 2. After a jury trial, defendant was convicted on all four counts. Two years later, the Supreme Court rendered an opinion requiring the active employment of a firearm during and in relation to the underlying offense to support a § 924(c)(1) conviction. Defendant then filed a pro se motion under 28
U.S.C.S. § 2255 in part arguing the evidence at trial was insufficient to support his 18 U.S.C.S. § 924(c)(1) convic- tion. The district court denied the motion, and defendant appealed. On appeal, the court affirmed because the evi- dence presented at trial was sufficient to prove defendant's active employment of a firearm.
OUTCOME: The court affirmed the order that denied de- fendant's motion because the evidence presented at trial
was sufficient to support defendant's conviction for ac- tively employing a firearm during and in relation to the underlying drug offenses.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession
HN1 In order to be convicted under 18 U.S.C.S. §
924(c)(1), a defendant must be shown to have actively employed the firearm during and in relation to the under- lying offense.
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession
HN2 18 U.S.C.S. § 924(c)(1) provides whoever, during and in relation to any crime of violence or drug trafficking crime uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.
Criminal Law & Procedure > Appeals > Standards of
Review > Substantial Evidence
HN3 In considering the sufficiency of the evidence pre- sented at trial, the appropriate standard is whether, view- ing the evidence in the light most favorable to the gov- ernment as verdict winner, a jury could have found every element of the crime beyond a reasonable doubt. Criminal Law & Procedure > Criminal Offenses > Weapons > Possession
HN4 The term "use" under 18 U.S.C.S. § 924(c)(1) re- quires a showing of active employment by the defendant.
"Active employment" includes brandishing, displaying, bartering, striking with, and firing or attempting to fire, a firearm. A reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a use.
Criminal Law & Procedure > Criminal Offenses >
147 F.3d 281, *; 1998 U.S. App. LEXIS 13598, **1
Page 2
Inchoate Crimes > Conspiracy
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession
HN5 A defendant convicted of conspiracy is liable for the reasonably foreseeable acts of his co-conspirators committed in furtherance of the conspiracy. A defendant may be found guilty of violating 18 U.S.C.S. § 924(c)(1) under such a theory of liability.
COUNSEL: STEPHEN M. LATIMER, ESQUIRE
(Argued), Loughlin & Latimer, Hackensack, NJ, Attorney for Appellant Lazaro Antonio Ramos.
DAVID M. BARASCH, ESQUIRE, THEODORE B. SMITH, III, ESQUIRE (Argued), Office of the United States Attorney, Harrisburg, PA, Attorneys for Appellee United States.
JUDGES: Before: MANSMANN, COWEN, and
ALITO, Circuit Judges.
OPINIONBY: ALITO
OPINION: *283 OPINION OF THE COURT
ALITO, Circuit Judge.
This case requires us to decide whether the district court properly denied prisoner Ramos's 28 U.S.C. § 2255 motion alleging that the evidence presented at trial was insufficient to support his conviction under 18 U.S.C. §
924(c)(1) in light of the Supreme Court's interpretation of that provision in United States v. Bailey, 516 U.S. 137,
116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). n1 We conclude that the evidence was sufficient, and we therefore affirm.
n1 The Supreme Court's recent decision in
Muscarello v. United States, 141 L. Ed. 2d 111,
118 S. Ct. 1911, 1998 WL 292058 (Sup. Ct. 1998),
which construed the term "carries" in 18 U.S.C. §
924(c)(1), is inapplicable here.
**2
I.
Ramos was indicted and tried before a jury for con- spiracy to distribute cocaine, in violation of 21 U.S.C. §
841(a)(1); distribution in excess of 100 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; distribution in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and using and carrying firearms during and in relation to drug traffick- ing crimes, in violation of 18 U.S.C. § 924(c)(1) and 18
U.S.C. § 2.
The evidence at trial showed that Ramos and his co-conspirators, including Roman Blanco and two men called "Chemono" and "Pappitto," participated in a con- spiracy that sold drugs in a second-floor apartment at 227
South Queen Street in York, Pennsylvania. Ramos and Blanco rented the third-floor apartment of the same build- ing to store the drugs being sold in the apartment below. Two firearms, a sawed-off shotgun and a .357 magnum revolver, were also stored in the third-floor apartment. Only Ramos and Blanco had access to the third-floor apartment.
At trial, two witnesses testified that at times they saw firearms in the second-floor apartment. Candida Valentin testified that she saw a firearm in that **3 apartment on one occasion:
Q: When you went to the second floor apartment was there ever any time when you saw any weapons?
A: Yes.
Q: Do you recall when that would have been?
A: No, it's been a long time.
Q: What do you remember about seeing the weapons on the second floor?
A: Well, it was a weapon.
Q: A weapon. Can you describe it?
A: And it was a handgun and he told me he had bought it and I wanted to see it out of curiosity, "Tony," okay and he showed it to me. I had it in my hands and "Johnnie" didn't like the idea of me having it in my hands. He told him to take it away from me. That was the only time I seen it.
A64-65.
The second witness, Albert Lee King, Jr., testified that he saw firearms in the second-floor apartment while purchasing drugs there. He stated that he saw weapons
(a large caliber silver handgun and a sawed-off shotgun) lying on the table when he went to the apartment. He also testified that he saw a man called "Tony" pick up a gun and that a "tall fellow had a shotgun in his hand one time." Without objection, the district court instructed the jury in accordance with our court's interpretation of the con- cept of "use" under § 924(c)(1). **4 See United States v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989). The
district court stated:
It may be that a person used a firearm dur-
147 F.3d 281, *283; 1998 U.S. App. LEXIS 13598, **4
Page 3
A88.
ing and in relation to a drug trafficking crime if you find that the circumstances surround- ing the presence of a firearm in a place where drugs are traded suggest that the firearm was located so as to be quickly and easily avail- able for use during drug transactions.
The presence of a loaded firearm in a place where drugs are possessed with an in- tent to distribute may be sufficient to prove that a firearm was used during and in relation to a drug trafficking crime.
*284 When I say that a firearm was used, I don't mean in the sense of some- one holding it and pointing it or firing it. It's whether the firearm was employed in any way to assist in or facilitate a drug trafficking crime.
that King's testimony was sufficient even under the Bailey
"use" standard. Ramos appealed, and we granted a cer- tificate of appealability pursuant to 28 U.S.C. § 2253(a) limited to the § 924(c)(1) issue.
n3 The district court concluded that the unusual and "somewhat surreal" scene of a drug dealer actu- ally surrendering a weapon to a customer does not satisfy the requirement that a defendant refer to, brandish or display a gun as a visible but forceful presence. D. Ct.'s Order at 9-10.
II.
In his § 2255 motion, Ramos asserted that the ev- idence presented at trial was insufficient to sustain a §
924(c)(1) conviction under the Bailey "use" standard. On appeal, Ramos further argues that the jury instructions regarding this element were erroneous in light of Bailey. We will address each of these arguments.
The jury convicted Ramos on all four counts, and he was sentenced to a total term of imprisonment of 228 months (three concurrent terms of 168 months on the first three counts and a consecutive term of 60 months on the final count). He was also ordered to pay fines and special assessments. The conviction was affirmed by this court in an unpublished **5 judgment order. United States v. Ramos, 9 F.3d 1542, 1993 U.S. App. LEXIS 29417, No.
93-7223 (3d Cir. 1993). Two years later, the Supreme Court held in Bailey that HN1 in order to be convicted under 18 U.S.C. § 924(c)(1) n2 a defendant must be shown to have actively employed the firearm during and in rela- tion to the underlying offense. 116 S. Ct. at 508.
n2 HN2 18 U.S.C. § 924(c)(1) states, in per- tinent part:
Whoever, during and in relation to any crime of violence or drug traffick- ing crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . .
In 1996, Ramos filed the pro se § 2255 motion that is the subject of this appeal. In his motion, Ramos ar- gued that his counsel had been ineffective and that the evidence at trial was insufficient to support his convic- tion under Bailey. The district court disagreed and denied his motion. Although the district court concluded that Valentin's testimony was insufficient **6 to support Ramos's conviction under § 924(c)(1), n3 the court held
A. Sufficiency of the Evidence
In contending that the evidence was not sufficient to show "use" under **7 Bailey, Ramos specifically ar- gues that King did not properly identify Ramos, whose first name is Antonio, as the "Tony" whom Ramos saw holding the hand gun. Appellant's Br. at 10-11. The gov- ernment responds, first, that a rational jury could have concluded that Ramos was the "Tony" to whom King re- ferred and, second, that the evidence in any event was suf- ficient to sustain Ramos's § 921(c)(1) conviction under a conspiracy theory of liability. Gov't's Br. at 14-17. HN3 In considering the sufficiency of the evidence presented at trial, the appropriate standard is whether, viewing the evidence in the light most favorable to the government as verdict winner, a jury could have found every element of the crime beyond a reasonable doubt. United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1994).
1. Guns on the Table as "Use"
The first question to be addressed is whether King's testimony that guns were lying on a table in the room where a drug transaction took place is sufficient to sus- tain a § 924(c)(1) conviction. We conclude that it is.
In Bailey, the Supreme Court held that HN4 "use" under § 924(c)(1) requires a showing of active employ- ment by the defendant. 116 S. **8 Ct. at 505. The Court defined active employment as including "brandish- ing, displaying, bartering, striking with, and most obvi- ously, firing or attempting to fire, a firearm." Id. at 508. The Court further noted that "a reference to a firearm cal- culated to bring about a change in the circumstances of the predicate offense is a 'use,'just as the silent but obvi-
147 F.3d 281, *284; 1998 U.S. App. LEXIS 13598, **8
Page 4
ous and forceful presence of a gun *285 on a table can be a 'use.' " Id. (emphasis added). In contrast, when the Supreme Court discussed the "mere presence" of guns, it described the presence of guns in a nearby closet for the purpose of providing a sense of security and/or em- boldening a defendant. Id. at 508. To the Court, this latter situation evidenced storage and not active employment. Id.
King's testimony is sufficient to meet the requirements of "use" as established in Bailey. According to King, the guns were placed in plain view on the table while he was in the apartment buying drugs. As the Supreme Court explicitly stated in Bailey, the "silent but obvious and forceful presence of a gun on the table can be a 'use.' "
116 S. Ct. at 508. If the guns had been out of King's sight
(for example, under a couch **9 or in a drawer of the table), they would merely have been available for the drug sellers. But since King testified that the guns were placed in plain view on the table, his testimony was sufficient to show "use."
The men's handling of the gun further supports the conclusion that the guns were "used." King testified that on at least one occasion he witnessed a man holding the handgun, and on another occasion a man held a shot- gun. If, as we believe, the guns could be viewed as "a silent but obvious and forceful presence" while lying on the table, they could reasonably be viewed as creating an even more forceful presence when the men were actively holding them.
2. Ramos's Criminal Liability
The next question is whether the government estab- lished that Ramos was criminally liable for this use. After viewing the evidence in the light most favorable to the government, we conclude that the evidence is sufficient to establish Ramos's guilt under § 924(c)(1).
a. "A Tony"
Ramos's principal argument is that King never identi- fied Ramos as the "Tony" whom King saw pick up a gun and, indeed, that King never identified Ramos as being present in the apartment when King was buying **10 drugs and the guns were displayed. We conclude, how- ever, that the evidence was sufficient to support the infer- ence that Ramos was the "Tony" to whom King referred. Blanco testified that he and Ramos sold the drugs from the second-floor apartment while Chemono and Pappitto made the deliveries. Three other witnesses also identified Ramos as one of the men who sold drugs in the second- floor apartment and said that his nickname was "Tony." See A36, A38, A50 (Blanco); A52-53, A54 (Burgos); A61-62 (Valentin); A70-71, 74 (Garcia). No other par- ticipant in the conspiracy went by that name. Viewing
this evidence together with King's testimony, a reason- able jury could infer that Ramos was the "Tony" who was present in the apartment selling drugs and holding the gun.
In reaching this conclusion, we acknowledge that King's testimony was less than clear. King testified in relevant part as follows:
Q. Do you know a man by the name of
Roman Antonio Blanco? A. Yes, ma'am, I do.
Q. How do you know him? A. From buying drugs?
A.79-80.
Q: Were there other individuals in that apartment from whom you purchased drugs besides Mr. Blanco?
A: Yeah, I got drugs from another guy, Roman Blanco. **11
Q: Well, Mr. Blanco is Roman Blanco. A: Okay, well, him and there is a tall fellow I got drugs from.
Q: Do you recall a name?
A: I used to call him Meta and they re- sponded to that.
Q: What's that word mean?
A: Meta means look in Spanish.
Q: Did you ever see any weapons when you went to 227, or I shouldn't say that, to the apartment on South Queen Street?
A: Yes, ma'am, I did.
Q: Can you tell the jury what you saw? A: I seen a large caliber silver handgun
and I seen a sawed-off shotgun.
*286 Q: Can you describe what the sawed-off shotgun looked like?
A: It was about this long and it had a pistol grip to it.
(Indicating) It was about like that.
Q: Are you saying it didn't have a stock? A: No ma'am, it didn't have a stock. Yes, that's what I'm saying. It didn't have a stock
to it.
147 F.3d 281, *286; 1998 U.S. App. LEXIS 13598, **11
Page 5
Q: Now who -- was there somebody who had possession of the guns at the time that you saw them or were they just there?
A: They were just laying on the table.
Q: Did you ever see anybody in that apart- ment actually pick up a gun?
A: Yes, I seen a "Tony" pick up the gun and say like this at one time. And the tall fellow had a shotgun in his hand one time.
Q: The tall fellow, and he the person that
**12 you refer to as Meta?
A: I refer to all of them as Meta.
Q: Why did you do that? A: Because they didn't tell me their names.
A81-83.
Although this testimony obviously provided grist for a jury argument, we see nothing in this exchange that precluded a rational jury from inferring that the "Tony" whom King saw pick up a gun was Ramos. To be sure, it is unclear whether King was also referring to Ramos when he mentioned "the tall fellow" who sold him drugs or "the tall fellow" who held a shot gun in his hands on one occasion, but in either event a rational jury could still infer that Ramos, whose nickname was "Tony," was the
"Tony" identified by King as holding a gun. The argument now advanced by Ramos's attorney was one for the jury, which had the opportunity to see and hear the witnesses. This argument does not provide a ground for § 2255 relief.
b. Pinkerton Liability
In addition, the government's evidence is sufficient to sustain Ramos's § 924(c)(1) conviction under a Pinkerton theory of liability. HN5 A defendant convicted of con- spiracy is liable for the reasonably foreseeable acts of his co-conspirators committed in furtherance of the conspir- acy. **13 Pinkerton v. United States, 328 U.S. 640,
90 L. Ed. 1489, 66 S. Ct. 1180 (1946). This court has held that a defendant may be found guilty of violating
§ 924(c)(1) under a Pinkerton theory of liability. United
States v. Casiano, 113 F.3d 420, 427 (3d Cir.), cert. denied
139 L. Ed. 2d 155, 118 S. Ct. 221 (1997).
Even if King's testimony were not sufficient to show that Ramos himself used or carried a firearm during and in relation to a drug trafficking offense, his testimony was clearly sufficient to show that one or more of the other conspirators did so. Moreover, there was ample evidence to show that Ramos was a member of the conspiracy (he was convicted of that very crime) and that § 924(c)(1)
violation was committed in furtherance of the conspir- acy. King's testimony was sufficient to establish that at least one member of Ramos' conspiracy used guns in fur- therance of the conspiracy. Blanco and Ramos rented the second-floor apartment so to sell drugs; it was used for that purpose; and King testified that he bought drugs from men in the second-floor apartment. On at least one oc- casion when King was buying drugs in that apartment, the men selling drugs had guns on the table. n4 At times,
**14 one of them even held a gun while King was in the apartment buying the drugs.
n4 King's description of the guns (a large silver handgun and sawed-off shotgun) matches the de- scription of two of the guns stored in the third floor apartment with the drugs.
The use of the guns in furtherance of the conspir- acy was also reasonably foreseeable. The co-conspirators stored the drugs and the guns in the third-floor apartment, and Ramos had access to that apartment. A logical infer- ence is that he knew that the guns were in the third-floor apartment and that he knew that the guns were there for possible future use during the process of selling of the drugs. Additionally, even if Valentin's testimony was not enough to demonstrate "use" under Bailey, it certainly shows that Ramos at times had a gun in the second-floor apartment while he was selling drugs. If Ramos had a gun in the apartment, it would certainly be *287 reasonably foreseeable to him that his co-conspirators would have a gun in that apartment and that they would **15 have the guns on the table or in their hands.
Ramos next argues that because King did not affir- matively identify a person holding a gun, none of the conspirators could be guilty of violating § 924(c)(1). This argument is faulty because, in order to establish Pinkerton liability, it is not necessary to establish the identity of the conspirator who personally committed the substantive of- fense. It is sufficient to show that this individual was a co-conspirator, that he or she committed the substantive offense, and that he or she did so in furtherance of the con- spiracy. Here, there was ample evidence to support such a finding. Accordingly, there was sufficient evidence to support Ramos's § 924(c)(1) under a Pinkerton theory of liability.
B. Jury Instructions
Ramos's remaining argument on appeal is that the
"use" instruction given to the jury at trial was erroneous in light of Bailey. However, Ramos made no reference to the jury instructions in his § 2255 motion before the dis- trict court, and the district court understandably did not interpret his motion as raising a question regarding the
147 F.3d 281, *287; 1998 U.S. App. LEXIS 13598, **15
Page 6
instructions. Under these circumstances, we are hesitant to consider **16 the issue on appeal. See United States v. Shovlin, 464 F.2d 1211 (3d Cir. 1972) (refusing to con- sider two additional grounds for habeas relief that were not raised before the district court or briefed before this court). Moreover, even if we were to read Ramos's pro se
§ 2255 motion as raising the issue, he still would not be entitled to relief in light of the Supreme Court's recent de- cision in Bousley v. United States, 140 L. Ed. 2d 828, 118
S. Ct. 1604, 1998 WL 244204 (May 18, 1998). Because he did not raise the jury instruction issue on direct appeal, he procedurally defaulted on this issue, and under Bousley it is apparent that Ramos cannot demonstrate either "cause" for failing to raise the issue on direct appeal or "actual
innocence." Bousley held that a § 2255 movant cannot show "cause" for failing to make a Bailey argument on direct appeal by demonstrating that circuit law at the time would have made any such argument futile. Furthermore, Bousley concluded that, in order for a § 2255 movant to show actual innocence, the movant must show "fac- tual innocence, not mere legal insufficiency." Id. at *5. Here, where the evidence was sufficient to support the
§ 924(c)(1) conviction, that **17 standard obviously could not be met.
III.
For these reasons, we affirm the district court's order denying Ramos's motion under 28 U.S.C. § 2255.
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