                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 11, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-3224
          v.                                               D. Kansas
 FREDERICO RAMSEY,                             (D.C. No. 2:09-CR-20046-CM-4)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and HARTZ, Circuit Judges.



I.    Introduction

      A federal jury convicted Defendant Federico Ramsey on one count of

conspiracy to distribute and possess with intent to distribute heroin, and three

counts of distribution and possession with intent to distribute heroin. He was

sentenced to 292 months’ imprisonment. In this appeal, he argues the district

court erred by refusing to sever his trial from that of his codefendant, Verdale

Handy, and by denying his Batson challenge. See Batson v. Kentucky, 476 U.S.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
79 (1986). He also argues the Government’s evidence was insufficient to sustain

the conspiracy conviction and one of the convictions for possession with intent to

distribute heroin.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the

district court’s rulings and Ramsey’s convictions.

II.   Background

      Ramsey and Handy were charged in a multi-count indictment with criminal

activity relating to their alleged involvement in a conspiracy to distribute heroin.

Prior to the commencement of jury selection, Ramsey moved to sever his trial

from that of his codefendants. 1 In support, he argued the jury would not be

capable of “making an individualized assessment” of his guilt because he was

charged only as a “minor player” in the heroin conspiracy. The Government

opposed the motion and the district court denied it.

      During voir dire, the Government used a peremptory challenge to strike an

African American member of the venire. Handy raised a timely Batson objection

and Ramsey joined that objection. See Batson, 476 U.S. at 89 (holding the Equal

Protection Clause prohibits the prosecution from exercising a peremptory

challenge to exclude a prospective juror because of the juror’s race). The district



      1
        At the time Ramsey filed his motion, there were eight codefendants
including Ramsey. Of those eight individuals, only Ramsey and Handy did not
enter into plea agreements with the Government before trial.

                                         -2-
court overruled the Batson challenge, concluding Handy and Ramsey failed to

demonstrate that the Government’s proffered reasons for striking the juror were a

pretext for racial discrimination.

       After the jury returned the guilty verdicts, Ramsey sought a new trial,

arguing the district court erred by refusing to sever his trial from that of his

codefendant, Handy. In support, he argued trial evidence relating to Handy’s

attempt to murder a witness was inflammatory and prejudiced his right to a fair

trial because he was not charged with any offense related to that conduct. The

district court denied this request, concluding the evidence relating to the

attempted murder did not unfairly prejudice Ramsey and any potential prejudice

was corrected by the jury instructions.

III.   Discussion

       A.    Motion to Sever

       On appeal, Ramsey first argues the district court erred by refusing to sever

his trial from Handy’s trial. Although “there is a preference in the federal system

for joint trials of defendants who are indicted together,” Zafiro v. United States,

506 U.S. 534, 537 (1993), Rule 14(a) of the Federal Rules of Criminal Procedure

permits a district court to sever the trial of a codefendant if joinder “appears to

prejudice a defendant or the government.” This court reviews the denial of a

motion to sever for abuse of discretion. United States v. Colonna, 360 F.3d 1169,

1177 (10th Cir. 2004). To establish an abuse of discretion, Ramsey must meet a

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heavy burden of showing that “actual prejudice” resulted from the denial of his

motion. United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009).

Prejudice occurs when there “is a serious risk that a joint trial [will] compromise

a specific trial right . . . or prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro, 506 U.S. at 539. Ramsey must also overcome

the presumption in a conspiracy trial that coconspirators charged together should

be tried together. United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005).

      Ramsey, admittedly a low-level member of the conspiracy, argues he has

shown prejudice because the great weight of the evidence introduced during trial

was inapplicable to the charges against him. Specifically, he focuses on trial

testimony that codefendant Handy attempted to murder an individual he believed

was a “snitch” and evidence two individuals died after using heroin sold to them

by other members of the conspiracy. Ramsey asserts he was not involved in any

of these incidents but the admission of the evidence relating to them diminished

his right to a fair trial by prejudicing the jury against him.

      The Government is correct that Ramsey cannot establish prejudice merely

by showing there was “a negative spill-over effect from damaging evidence

presented against” Handy or that he was less culpable than Handy. United States

v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995). Ramsey’s argument goes a step

further, however, and encompasses the assertion he was prejudiced because the

bulk of the evidence presented at trial would not have been admissible if he had

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been tried alone. While there is some appeal to this argument as a general

proposition, Ramsey’s argument fails because he has not shown the evidence

would be inadmissible to prove the conspiracy charge against him if he had been

tried alone.

      Overt acts taken in furtherance of a conspiracy are admissible against all

coconspirators as evidence of the conspiracy. See United States v. Scott, 37 F.3d

1564, 1581 (10th Cir. 1994). There was testimony Handy shot Henry Nelson

because he and one of the coconspirators believed Nelson was the “snitch” who

was providing information to the police about the conspiracy. Additionally, the

evidence linking Handy to the Nelson shooting included testimony Ramsey was

present during a meeting at which the coconspirators discussed the possibility a

member of the conspiracy was cooperating with the police. Ramsey does not

make any colorable argument that he withdrew from the conspiracy before Handy

shot Nelson or that the shooting was not undertaken in furtherance of the

conspiracy. See United States v. Randall, 661 F.3d 1291, 1295-96 (10th Cir.

2011) (holding a conspirator can withdraw from a conspiracy by either: (1)

“giv[ing] authorities information with sufficient particularity to enable the

authorities to take some action to end the conspiracy,” or (2) “communicat[ing]

his withdrawal directly to his coconspirators in a manner that reasonably and

effectively notifies the conspirators that he will no longer be included in the

conspiracy . . . in any way”). Thus, testimony relating to the shooting was

                                         -5-
admissible against Ramsey as evidence of the conspiracy. The evidence that

customers of the conspiracy died after using heroin provided by the conspiracy

was also admissible against Ramsey because the overt acts of the other

coconspirators in providing that heroin were undertaken in furtherance of the

conspiracy. Further, even if the sales were made before Ramsey joined the

conspiracy, “a defendant who joins an ongoing conspiracy may be held

accountable—for purposes of determining the scope of liability for the conspiracy

charge itself—with the acts or statements of coconspirators that occurred prior to

his entry into the conspiracy, if those acts or statements were in furtherance of the

conspiracy.” United States v. Hamilton, 587 F.3d 1199, 1207 (10th Cir. 2009).

      Ramsey’s prejudice argument fails for another reason. The Government

does not seriously dispute that Ramsey and Handy had “markedly different

degrees of culpability,” and concedes there is an increased risk of prejudice from

a joint trial under such circumstances. See Zafiro, 506 U.S. at 539. The Supreme

Court, however, has held “limiting instructions often will suffice to cure any risk

of prejudice.” Id. Here, the jury instructions contained an appropriate limiting

instruction, advising the jury as follows:

      A separate crime is charged against one or more of the defendants in
      each count of the indictment. You must separately consider the
      evidence against each defendant on each count and return a separate
      verdict for each defendant. Your verdict as to any one defendant or
      count, whether it is guilty or not guilty, should not influence your
      verdict as to any other defendant or counts.


                                         -6-
Ramsey has not pointed to anything in the record indicating the jury did not

follow these instructions. To the contrary, the jury’s verdict, which contains

specific findings as to the drug quantities attributable to Ramsey, indicates the

jury was able to compartmentalize the evidence against the two codefendants.

      For all these reasons, Ramsey has not met his burden of showing that actual

prejudice resulted from being tried jointly with Handy. Accordingly, we conclude

the district court did not abuse its discretion when it denied his request for

severance.

      B.     Batson Challenge

      Ramsey next challenges the district court’s denial of his Batson challenge.

In support, he presents materially the same arguments challenging the credibility

of the prosecutor that this court considered and rejected in Handy’s direct

criminal appeal. United States v. Handy, No. 11-3246, 2012 WL 6062658 (10th

Cir. Dec. 7, 2012) (unpublished disposition). For the same reasons articulated

fully in Handy, we conclude the district court did not clearly err when it denied

the Batson objection. Id. at *2-*4.

      C.     Sufficiency of the Evidence

      The final issue advanced by Ramsey is a challenge to the sufficiency of the

evidence supporting his conviction for conspiracy to distribute heroin and one of

his convictions for possession with intent to distribute heroin. This court reviews

de novo whether the Government presented sufficient evidence to support a

                                           -7-
conviction. United States v. Winder, 557 F.3d 1129, 1137 (10th Cir. 2009). We

must determine whether a reasonable jury could find the defendant guilty beyond

a reasonable doubt after considering all the evidence, including any reasonable

inferences that may be drawn therefrom, in the light most favorable to the

Government. Id. We do not re-weigh the evidence presented to the jury or assess

witness credibility. Id.

      To prove a conspiracy charge, the Government is required to show “(1) that

two or more persons agreed to violate the law, (2) that the defendant knew at least

the essential objectives of the conspiracy, (3) that the defendant knowingly and

voluntarily became a part of it, and (4) that the alleged coconspirators were

interdependent.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007)

(quotation and alteration omitted). Ramsey’s challenge is confined to an

assertion the Government failed to prove two of these four elements—agreement

and interdependence. After reviewing the record, we reject his argument because

a rational jury could have found these two elements were proved beyond a

reasonable doubt from the evidence presented at trial.

      The agreement element can be proved with circumstantial evidence of even

an informal agreement. United States v. Lang, 364 F.3d 1210, 1223 (10th Cir.

2004). The Government points to ample evidence supporting the agreement

element of the conspiracy charge, including the testimony of coconspirator

Nelson. According to Nelson, Ramsey received supplies of heroin from Handy on

                                         -8-
credit and was given a “cut” of the proceeds after the drugs were sold. The

amount of the payments to Ramsey were set by Handy. Ramsey distributed the

heroin from two properties owned or rented by Handy. Nelson also testified that

he drove Ramsey to these properties to distribute the heroin because Ramsey did

not own a car. There was also testimony that Handy hired Ramsey to distribute

heroin because he wanted to limit Nelson’s street exposure.

      Trial testimony also supports the proposition that Ramsey sold heroin for

the conspiracy over a period of several months, indicating his association was not

fleeting. Government witness Rachel Teasley testified she purchased heroin from

Ramsey approximately 100 times. Deputy Justin Branner testified that he made a

controlled buy from Ramsey on November 4, 2008, and again on January 12,

2009. Nelson testified that Ramsey distributed heroin for the conspiracy over a

period of two to three months.

      This evidence, taken as a whole, shows more than “mere association” with

the other conspirators. Based on the evidence, a reasonable jury could find that

Ramsey agreed to distribute heroin on behalf of the conspiracy.

      Much of the same evidence supporting the agreement element of the

conspiracy charge is relevant to the interdependence element. “Interdependence

is present if the activities of a defendant charged with conspiracy facilitated the

endeavors of other alleged coconspirators or facilitated the venture as a whole.”

United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009) (quotation

                                         -9-
omitted). The evidence shows Ramsey sold heroin and collected payment on

behalf of the conspiracy. Further, he was hired to minimize the street exposure of

Nelson in an effort to limit the possibility the police would become aware of the

activities of the conspiracy. These acts facilitated the venture as a whole and

indicate Ramsey had a vital role in the overall conspiracy even if his participation

was minor. Thus, the evidence fully supports the jury’s finding on

interdependence.

      Ramsey also argues the evidence was insufficient to sustain one of his

convictions for possession with intent to distribute heroin. This charge was based

on drugs seized during a search of a residence located at 5915 Cernech Road in

Kansas City, on January 14, 2009. At the time of the search, Ramsey was present

in the residence with Nelson. When officers executed the warrant, they

discovered Nelson attempting to flush heroin capsules down the toilet. Ramsey

was discovered in the living room. To prove the charge against Ramsey, the

Government was required to show Ramsey knowingly possessed the drugs found

in the residence and had the specific intent to distribute them. United States v.

Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005). The conviction can be based on a

finding of either actual or constructive possession. United States v. McKissick,

204 F.3d 1282, 1291 (10th Cir. 2000). Even assuming the evidence was not

sufficient to establish actual possession, it was sufficient to establish constructive

possession.

                                         -10-
       “To prove constructive possession, the government must present evidence

establishing some nexus, link, or other connection between the defendant and the

contraband.” Cardinas-Garcia, 596 F.3d 788, 794 (10th Cir. 2010) (quotation

omitted). If an item is found on a premises jointly occupied by the defendant and

other individuals, the Government can show constructive possession by presenting

evidence that “plausibly supports the inference that the defendant had knowledge

of and access to the contraband.” United States v. Bagby, 696 F.3d 1074, 1081

(10th Cir. 2012) (quotation and alteration omitted). Ramsey argues the

Government did not present any evidence linking him to the heroin found during

the search other than his “mere presence at the scene.” The Government’s

evidence, however, included testimony that an undercover officer purchased

heroin from Ramsey on two occasions. Both purchases were made at the Cernech

residence and one took place less than forty-eight hours before the search warrant

was executed. This evidence amply supports the proposition that Ramsey knew

heroin was stored at, and distributed from, the Cernech location. It also shows

that Ramsey had access to the heroin at the residence. Additionally, some of the

heroin seized during the search was found on the floor of the living room—the

room in which officers located Ramsey. This evidence, including all the

reasonable inferences that can be drawn from it, was sufficient to support the

jury’s finding that Ramsey possessed the heroin discovered during the search with

the intent to distribute it.

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IV.   Conclusion

      Ramsey’s convictions are affirmed.

                                      ENTERED FOR THE COURT


                                      Michael R. Murphy
                                      Circuit Judge




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