                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-1998

United States v. Ramos
Precedential or Non-Precedential:

Docket 96-7356




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Recommended Citation
"United States v. Ramos" (1998). 1998 Decisions. Paper 147.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/147


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Filed June 26, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7356

UNITED STATES OF AMERICA

v.

LAZARO ANTONIO RAMOS,
a/k/a Tony Ramos

LAZARO ANTONIO RAMOS,
Appellant

Appeal from the United Stated District Court
for the Middle District of Pennsylvania
(D.C. Crim No. 92-cr-00172)

Argued: January 28, 1998

Before: MANSMANN, COWEN, and ALITO, Circuit Judges

(Filed June 26, 1998)

       STEPHEN M. LATIMER, ESQUIRE
        (Argued)
       Loughlin & Latimer
       9 Kansas Street
       Hackensack, NJ 07601
       Attorney for Appellant
       Lazaro Antonio Ramos
       DAVID M. BARASCH, ESQUIRE
       THEODORE B. SMITH, III.,
        ESQUIRE (Argued)
       Office of the United States Attorney
       Federal Building
       228 Walnut Street
       Harrisburg, PA 17108
       Attorneys for Appellee
       United States

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. S 2255 motion
alleging that the evidence presented at trial was insufficient
to support his conviction under 18 U.S.C. S 924(c)(1) in
light of the Supreme Court's interpretation of that provision
in United States v. Bailey, 116 S. Ct. 501 (1995).1 We
conclude that the evidence was sufficient, and we therefore
affirm.

I.

Ramos 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 21 U.S.C. S 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 trafficking crimes,
in violation of 18 U.S.C. S 924(c)(1) and 18 U.S.C. S 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 conspiracy that
sold drugs in a second-floor apartment at 227 South Queen
_________________________________________________________________

1. The Supreme Court's recent decision in Muscarello v. United States,
1998 WL 292058 (Sup. Ct. June 8, 1998), which construed the term
"carries" in 18 U.S.C. S 924(c)(1), is inapplicable here.

                               2
Street in York, Pennsylvania. Ramos and Blanco rented the
third-floor apartment of the same building 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 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
concept of "use" under S 924(c)(1). See United States v.

                                3
Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989). The
district court stated:

        It may be that a person used a firearm during and in
       relation to a drug trafficking crime if you find that the
       circumstances surrounding 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
       available for use during drug transactions.

        The presence of a loaded firearm in a place where
       drugs are possessed with an intent to distribute may
       be sufficient to prove that a firearm was used during
       and in relation to a drug trafficking crime.

        When I say that a firearm was used, I don't mean in
       the sense of someone holding it and pointing it orfiring
       it. It's whether the firearm was employed in any way to
       assist in or facilitate a drug trafficking crime.

A88.

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 judgment order. United States v. Ramos,
No. 93-7223 (3d Cir. 1993). Two years later, the Supreme
Court held in Bailey that in order to be convicted under 18
U.S.C. S 924(c)(1)2 a defendant must be shown to have
actively employed the firearm during and in relation to the
underlying offense. 116 S. Ct. at 508.

In 1996, Ramos filed the pro se S 2255 motion that is the
subject of this appeal. In his motion, Ramos argued that
his counsel had been ineffective and that the evidence at
trial was insufficient to support his conviction under
_________________________________________________________________

2. 18 U.S.C. S 924(c)(1) states, in pertinent part:

       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 . .
.

                                4
Bailey. The district court disagreed and denied his motion.
Although the district court concluded that Valentin's
testimony was insufficient to support Ramos's conviction
under S 924(c)(1),3 the court held that King's testimony was
sufficient even under the Bailey "use" standard. Ramos
appealed, and we granted a certificate of appealability
pursuant to 28 U.S.C. S 2253(a) limited to the S 924(c)(1)
issue.

II.

In his S 2255 motion, Ramos asserted that the evidence
presented at trial was insufficient to sustain a S 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.

A. Sufficiency of the Evidence

In contending that the evidence was not sufficient to
show "use" under Bailey, Ramos specifically argues 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 government responds,
first, that a rational jury could have concluded that Ramos
was the "Tony" to whom King referred and, second, that the
evidence in any event was sufficient to sustain Ramos's
S 921(c)(1) conviction under a conspiracy theory of liability.
Gov't's Br. at 14-17. 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
_________________________________________________________________

3. The district court concluded that the unusual and "somewhat surreal"
scene of a drug dealer actually 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.

                                 5
testimony that guns were lying on a table in the room
where a drug transaction took place is sufficient to sustain
a S 924(c)(1) conviction. We conclude that it is.

In Bailey, the Supreme Court held that "use" under
S 924(c)(1) requires a showing of active employment by the
defendant. 116 S. Ct. at 505. The Court defined active
employment as including "brandishing, displaying,
bartering, striking with, and most obviously, firing or
attempting to fire, a firearm." Id. at 508. The Court further
noted that "a reference to a firearm calculated to bring
about a change in the circumstances of the predicate
offense is a `use,' just as the silent but obvious and forceful
presence of a gun 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 emboldening 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 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 shotgun.
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 established
that Ramos was criminally liable for this use. After viewing

                                6
the evidence in the light most favorable to the government,
we conclude that the evidence is sufficient to establish
Ramos's guilt under S 924(c)(1).

a. "A Tony"

Ramos's principal argument is that King never identified
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 drugs and the
guns were displayed. We conclude, however, that the
evidence was sufficient to support the inference 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 participant in the
conspiracy went by that name. Viewing this evidence
together with King's testimony, a reasonable 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.

       Q: Well, Mr. Blanco is Roman Blanco.

                                 7
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 responded 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.

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.

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 apartment
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 you refer to
as Meta?

A: I refer to all of them as Meta.

Q: Why did you do that?
8
       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 S 2255 relief.

b. Pinkerton Liability

In addition, the government's evidence is sufficient to
sustain Ramos's S 924(c)(1) conviction under a Pinkerton
theory of liability. A defendant convicted of conspiracy is
liable for the reasonably foreseeable acts of his co-
conspirators committed in furtherance of the conspiracy.
Pinkerton v. United States, 328 U.S. 640 (1946). This court
has held that a defendant may be found guilty of violating
S 924(c)(1) under a Pinkerton theory of liability. United
States v. Casiano, 113 F.3d 420, 427 (3d Cir.), cert. denied
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 S 924(c)(1) violation
was committed in furtherance of the conspiracy. King's
testimony was sufficient to establish that at least one
member of Ramos' conspiracy used guns in furtherance 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 occasion when

                               9
King was buying drugs in that apartment, the men selling
drugs had guns on the table.4 At times, one of them even
held a gun while King was in the apartment buying the
drugs.

The use of the guns in furtherance of the conspiracy 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 inference 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 reasonably
foreseeable to him that his co-conspirators would have a
gun in that apartment and that they would have the guns
on the table or in their hands.

Ramos next argues that because King did not
affirmatively identify a person holding a gun, none of the
conspirators could be guilty of violating S924(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
offense. 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
conspiracy. Here, there was ample evidence to support
such a finding. Accordingly, there was sufficient evidence to
support Ramos's 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
_________________________________________________________________

4. King's description of the guns (a large silver handgun and sawed-off
shotgun) matches the description of two of the guns stored in the third
floor apartment with the drugs.

                               10
instructions in his S 2255 motion before the district court,
and the district court understandably did not interpret his
motion as raising a question regarding the instructions.
Under these circumstances, we are hesitant to consider the
issue on appeal. See United States v. Shovlin, 464 F.2d
1211 (3d Cir. 1972) (refusing to consider 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 S 2255 motion as raising
the issue, he still would not be entitled to relief in light of
the Supreme Court's recent decision in United States v.
Bousley, 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 S 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 S 2255 movant to
show actual innocence, the movant must show "factual
innocence, not mere legal insufficiency." Id. at * 5. Here,
where the evidence was sufficient to support the S 924(c)(1)
conviction, that 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. S 2255.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
