                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 09-4181
                                      _____________

                            UNITED STATES OF AMERICA,

                                             v.

                                   RICARDO RAMOS,

                                          Appellant.

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (Crim. No. 2-08-cr-00274-002)
                           District Judge: Hon. Jan E. DuBois

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 24, 2010

       Before: McKEE, Chief Judge, AMBRO, and CHAGARES, Circuit Judges

                                 (filed: October 13, 2010)

                                         OPINION

McKEE, Chief Judge.

       Ricardo Ramos appeals the district court=s order denying his motion for judgment

of acquittal. For the reasons that follow, we will affirm.

                                                  I.

       We write primarily for the parties and therefore will only set forth those facts that

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are helpful to our brief discussion of the issues. On March 31, 2008, Philadelphia Police

Department Strike Force Officers set up surveillance on Rorer and Cambria Streets in

Philadelphia - an area known for heroin trafficking. During the course of that

surveillance, the officers saw a black Chevy Suburban circle the block several times and

then park directly in front of the officers= unmarked car. A man walked up to the

passenger side window of the Suburban and handed money to a person inside. The

person who had walked up to the car then received something back and proceeded to

walk away. The officers identified that person as Ulysses Hood, whom they had arrested

previously for dealing heroin. Thereafter, a second individual walked up to the car and

the same thing happened. The Suburban then proceeded northbound.

       Officers stopped the car approximately three blocks from where it had been

parked. Co-defendant Franke Burk was the driver and Ricardo Ramos was in the

passenger seat. As one of the officers approached the car, he saw packets of heroin in

plain view in the area behind the driver=s seat, as well as the butt of a gun in the back seat.

Thereafter, officers searched the car pursuant to a search warrant that they had obtained.

During the course of that search, they seized cash, 281 packets of heroin, 24 packets of

cocaine, a .40 caliber H&K handgun, and drug paraphernalia.

       Ramos and Burk were subsequently charged with: (1) possession with intent to

distribute controlled substances, and aiding and abetting with possession with intent to

distribute in violation of 21 U.S.C. '' 841(a)(1), (b)(1)(C); (2) possession of a firearm in


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furtherance of drug trafficking, and aiding and abetting the possession of a firearm in

violation of 18 U.S.C. ' 924(c)(1)(A)(I) and 18 U.S.C. ' 2; and (3) possession of a

firearm by a convicted felon in violation of 18 U.S.C. ' 922.

       Prior to trial, Ramos entered a guilty plea and the government filed a motion in

limine to preclude Ramos from admitting a statement that Burk had made accepting sole

responsibility for some of the contraband that was seized. After police found the heroin,

Burk said that Ramos Ahad nothing to do with that,@ that the money was for an

engagement ring, and Athis is all mine.@ The district court ruled that it would consider

Burk=s statement if Ramos could lay the foundation for an excited utterance or present

sense impression during the trial. Ramos did not revisit this ruling during the course of

the trial, nor did he make any attempt to lay a foundation to admit Burk=s statements.

       Ramos was found guilty on all counts. At sentencing, the government presented

evidence that he had threatened two witnesses, and had bragged to a cell mate that he had

committed a shooting for which he was never convicted. Ramos was sentenced to 300

months= imprisonment.

       Ramos raises two arguments on appeal: (1) there was insufficient evidence that he

had actual possession or knowledge of the items in the car; and (2) the district court erred

in precluding him from eliciting from one of the arresting officers the statement that Burk

made about Ramos= involvement.

                                            II.


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         We have jurisdiction pursuant to 28 U.S.C. ' 1291. We review a district court=s

evidentiary rulings for abuse of discretion and the underlying legal conclusions de novo.

See United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). In reviewing

challenges to the sufficiency of the evidence, we view all of the evidence on the record

Ain the light most favorable to the prosecution to determine whether any rational trier of

fact could have found proof of guilt[] beyond a reasonable doubt based on the available

evidence.@ United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citations and

internal quotation marks omitted). Insufficient evidence claims place Aa very heavy

burden@ on an appellant. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990)

(citations and internal quotation marks omitted). An objection which was not preserved

at trial is reviewed for plain error. United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir.

2002).

                                      III. ANALYSIS

                              A. Sufficiency of the Evidence.

         Ramos argues that since he exercised no dominion over the contraband, the

government failed to prove even constructive possession of the heroin or the firearm

beyond a reasonable doubt.

         AA person who, although not in actual possession, knowingly has both the power

and the intention at a given time to exercise dominion or control over a thing, either

directly or through another person or persons, is then in constructive possession of it.@


                                              4
United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (quoting United States v.

Blackston, 940 F.2d 877, 883 (3d Cir. 1991)). However, Amere proximity . . . is

insufficient to support a finding of possession.@ United States v. Davis, 461 F.2d 1026,

1036 (3d Cir. 1972). Moreover, a defendant need not have sole possession of an item in

order for the government to establish constructive possession of it. A[D]ominion and

control need not be exclusive but may be shared with others.@ Id. at 1035.

       The evidence at trial established that Ramos exercised dominion and control over

the drugs and the gun. Officers testified to two separate observations which the jury

could reasonably have concluded were hand-to-hand drug sales out of the passenger

window of the Suburban where Ramos was sitting. Ramos had $442 in his possession,

including twenty-six ten-dollar bills. An expert witness testified that heroin sold for $10

a bag in that area, and that is certainly consistent with having so many ten-dollar bills in

one=s possession. In addition, hundreds of packets of drugs, the gun, and drug

paraphernalia were found within close proximity to where Ramos was sitting.

       Ramos argues that he was not in the car when these alleged hand-to-hand

transactions occurred, and suggests that Burk picked him up somewhere along the three

blocks between where the drug sales occurred and the officers stopped the car. Ramos

further suggests that even assuming that he was present in the car at the time of the sales,

he might have just sat passively while the driver reached past him to make the drug sale.

However, given the testimony, a reasonable jury could certainly conclude that Ramos was


                                              5
doing something more than enjoying a pleasant evening drive with a friend who just

happened to sell some heroin while leisurely driving along the city streets.

       The relevant inquiry is whether Aafter viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original). Here, it was reasonable for the jury to conclude that

Ramos= presence was more than coincidental. The jury could conclude that he actually

participated in the drug sales, and knew the gun was in the car. He was sitting next to the

window where drugs and money were exchanged, he had twenty-six ten-dollar bills in his

possession, and the gun and hundreds of packets of drugs were in his immediate vicinity

inside of the car and were clearly visible to him.1

                           B. Admissibility of Hearsay Evidence

       Ramos also argues that the district court erred in refusing to permit him to admit

the statement of co-defendant Burk. Ramos contends that the statement should have been

admitted under the present sense impression exception to the hearsay rule. He also argues

for the first time on appeal that the district court=s decision to exclude the statement


1
   The jury convicted Ramos of both aiding and abetting the possession of the drugs and gun, as
well as constructive possession, but Ramos addresses only the latter in his brief. ATo establish
liability based on an aiding and abetting theory, the government must prove (1) that the
substantive crime has been committed, and (2) the defendant knew of the crime and attempted to
facilitate it.@ United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992). The jury could also have
reasonably convicted Ramos under an aiding and abetting theory for the same reasons it could
have convicted him of constructive possession and actually being involved in the sales.


                                                 6
violated his due process rights pursuant to Chambers v. Mississippi, 410 U.S. 284 (1973).



       A>Hearsay= is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Fed. R.

Evid. 801(c); United States v. McGlory, 968 F.2d 309, 331 (3d Cir. 1992). A hearsay

statement is inadmissible unless it falls within one of the recognized exceptions to the

hearsay rule. McGlory, 968 F.2d at 333.

       The present sense impression exception allows a court to admit Aa statement

describing or explaining an event or condition made while the declarant was perceiving

the event or condition, or immediately thereafter.@ Fed. R. Evid. 803(1). In order to

qualify for admission under this exception: A(1) the declarant must have personally

perceived the event described; (2) the declaration must be an explanation or description of

the event rather than a narration; and (3) the declaration and the event described must be

contemporaneous.@ United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).

       Here, the defense did not elicit any foundation to support the admissibility of co-

defendant Burk=s statement as a present sense impression. Moreover, to its credit, the

district court invited defense counsel to seek reconsideration of the ruling while Burk

testified. Counsel did not renew the argument that the statement should have been

admitted as a present sense impression exception to the hearsay rule. Furthermore, the

evidence showed that there was a delay of at least twenty minutes between the


                                              7
defendants= arrest and Burk=s statement. In addition, Burk was securely detained inside a

police car when he made the statement. Under these circumstances, the district court did

not abuse its discretion in ruling that the statement did not satisfy the requirement that

Athe declarant had no chance to reflect - that is, no time to fabricate or misrepresent his

thoughts.@ See United States v. Macey, 8 F.3d 462, 467 (7th Cir. 1993).

       Finally, as just noted, Ramos argues for the first time on appeal that precluding

Burk=s statement violates his due process rights pursuant to Chambers. It is well

established that, absent extraordinary circumstances, we will not address an issue that is

raised for the first time on appeal. See Page v. Schweiker

786 F.2d 150, 153 (3d Cir. 1986). Ramos has not shown any such extraordinary

circumstances here, and we do not find any.

                                             IV.

       For the foregoing reasons, we will affirm the district court=s order denying

Ramos= motion for judgment of acquittal.




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