### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-26-1998 

# U nit ed S t a t es v

. R a mo s

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7356

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. R a mos " (1998). 1998 D e cisio n s

. P a pe r 147.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/147Filed 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 RamosDAVID 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 distric t court properly denied prisoner Ramos's 28 U.S.C. S 2255 m otion alleging that the evidence presented at trial was i nsufficient 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 t herefore
affirm.

I.

Ramos was indicted and tried before a jury for cons piracy 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; distrib ution 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 carryi ng 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 coconspirators, including Roman Blanco and two men ca lled "Chemono" and "Pappitto," participated in a conspir acy that sold drugs in a second-floor apartment at 227 South Queen

___________________________________________________ ______________

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

2Street in York, Pennsylvania. Ramos and Blanco rent ed the

third-floor apartment of the same building to store the drugs being sold in the apartment below. Two firear ms, 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 the y saw firearms in the second-floor apartment. Candida Val entin testified that she saw a firearm in that apartment on one occasion:

Q: When you went to the second floor apartme nt 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 wea pons 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 ha d bought it and I wanted to see it out of curi osity, "Tony," okay and he showed it to me. I had i t in my
hands and "Johnnie" didn't like the idea of me having it in my hands. He told him to take i t 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 weapo ns (a large caliber silver handgun and a sawed-off shotgu n) 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 t ime."

Without objection, the district court instructed th e jury in accordance with our court's interpretation of th e concept of "use" under S 924(c)(1). See United Stat es v.

3Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989). T he

district court stated:

It may be that a person used a firearm duri ng 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 th at 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 distri bute may be sufficient to prove that a firearm was us ed 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 c rime.

A88.

The jury convicted Ramos on all four counts, and he was sentenced to a total term of imprisonment of 228 mo nths (three concurrent terms of 168 months on the first three
counts and a consecutive term of 60 months on the f inal count). He was also ordered to pay fines and specia l assessments. The conviction was affirmed by this co urt in an unpublished judgment order. United States v. Ram os, No. 93-7223 (3d Cir. 1993). Two years later, the Su preme 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 ha ve actively employed the firearm during and in relatio n 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 evide nce at trial was insufficient to support his conviction un der

___________________________________________________ ______________

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 fi rearm, shall, in
addition to the punishment provided for such crime of vi olence or drug trafficking crime, be sentenced to imprisonm ent for five years . .

.

4Bailey. The district court disagreed and denied his motion.

Although the district court concluded that Valentin 's testimony was insufficient to support Ramos's convi ction under S 924(c)(1),3 the court held that King's test imony was sufficient even under the Bailey "use" standard. Ra mos appealed, and we granted a certificate of appealabi lity pursuant to 28 U.S.C. S 2253(a) limited to the S 92 4(c)(1)
issue.

II.

In his S 2255 motion, Ramos asserted that the evide nce presented at trial was insufficient to sustain a S 924(c)(1) conviction under the Bailey "use" standard. On appe al, Ramos further argues that the jury instructions reg arding 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 n ame is Antonio, as the "Tony" whom Ramos saw holding the h and gun. Appellant's Br. at 10-11. The government respo nds, first, that a rational jury could have concluded th at Ramos was the "Tony" to whom King referred and, second, t hat the evidence in any event was sufficient to sustain Ram os's S 921(c)(1) conviction under a conspiracy theory of liability. Gov't's Br. at 14-17. In considering the sufficienc y of the evidence presented at trial, the appropriate standa rd is whether, viewing the evidence in the light most fav orable to the government as verdict winner, a jury could have found every element of the crime beyond a reasonable doub t. 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 an d "somewhat surreal" scene of a drug dealer actually surrendering a weap on to a customer does not satisfy the requirement that a defendant r efer to, brandish or display a gun as a visible but forceful presence. D . Ct.'s Order at 9-10.

5testimony that guns were lying on a table in the ro om

where a drug transaction took place is sufficient t o 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 act ive employment as including "brandishing, displaying, bartering, striking with, and most obviously, firin g or attempting to fire, a firearm." Id. at 508. The Cou rt further
noted that "a reference to a firearm calculated to bring about a change in the circumstances of the predicat e 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 discuss ed the "mere presence" of guns, it described the presence of guns in a nearby closet for the purpose of providing a s ense 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 requirem ents 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 explic itly stated in Bailey, the "silent but obvious and force ful presence of a gun on the table can be a `use.' " 11 6 S. Ct. at 508. If the guns had been out of King's sight (f or example, under a couch or in a drawer of the table) , they would merely have been available for the drug selle rs. But since King testified that the guns were placed in p lain 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 testifie d that on at least one occasion he witnessed a man holding th e handgun, and on another occasion a man held a shotg un. If, as we believe, the guns could be viewed as "a s ilent but obvious and forceful presence" while lying on the t able, they could reasonably be viewed as creating an even more forceful presence when the men were actively holdin g them.

2. Ramos's Criminal Liability

The next question is whether the government establi shed that Ramos was criminally liable for this use. Afte r viewing

6the evidence in the light most favorable to the gov ernment,

we conclude that the evidence is sufficient to esta blish Ramos's guilt under S 924(c)(1).

a. "A Tony"

Ramos's principal argument is that King never ident ified Ramos as the "Tony" whom King saw pick up a gun and
, indeed, that King never identified Ramos as being p resent 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 th at Ramos was the "Tony" to whom King referred. Blanco testif ied that he and Ramos sold the drugs from the second-floor apartment while Chemono and Pappitto made the
deliveries. Three other witnesses also identified R amos as one of the men who sold drugs in the second-floor apartment and said that his nickname was "Tony." Se e A36, A38, A50 (Blanco); A52-53, A54 (Burgos); A61-6 2 (Valentin); A70-71, 74 (Garcia). No other participa nt in the conspiracy went by that name. Viewing this evidence together with King's testimony, a reasonable jury c ould 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 Ki ng's testimony was less than clear. King testified in re levant 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 apar tment 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.

7A: Okay, well, him and there is a tall fello w I got

drugs from.

Q: Do you recall a name?

A: I used to call him Meta and they responde d to that.

Q: What's that word mean?

A: Meta means look in Spanish.

Q: Did you ever see any weapons when you wen t to 227, or I shouldn't say that, to the apartme nt 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 shotg un looked like?

A: It was about this long and it had a pisto l 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, th at'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 apartmen t 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 y ou refer to

as Meta?

A: I refer to all of them as Meta.

Q: Why did you do that?8A: Because they didn't tell me their names.

A81-83.

Although this testimony obviously provided grist fo r 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 o r "the tall fellow" who held a shot gun in his hands on on e 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 n ow 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 relie f.

b. Pinkerton Liability

In addition, the government's evidence is sufficien t to sustain Ramos's S 924(c)(1) conviction under a Pink erton theory of liability. A defendant convicted of consp iracy is liable for the reasonably foreseeable acts of his c oconspirators committed in furtherance of the conspi racy. Pinkerton v. United States, 328 U.S. 640 (1946). Th is court has held that a defendant may be found guilty of vi olating S 924(c)(1) under a Pinkerton theory of liability. United States v. Casiano, 113 F.3d 420, 427 (3d Cir.), cer t. denied 118 S. Ct. 221 (1997).

Even if King's testimony were not sufficient to sho w that Ramos himself used or carried a firearm during and in relation to a drug trafficking offense, his testimo ny was clearly sufficient to show that one or more of the other conspirators did so. Moreover, there was ample evid ence 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. Kin g's testimony was sufficient to establish that at least one member of Ramos' conspiracy used guns in furtheranc e of the conspiracy. Blanco and Ramos rented the second- floor apartment so to sell drugs; it was used for that pu rpose; and King testified that he bought drugs from men in the second-floor apartment. On at least one occasion wh en

9King was buying drugs in that apartment, the men se lling

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

The use of the guns in furtherance of the conspirac y was also reasonably foreseeable. The co-conspirators st ored the drugs and the guns in the third-floor apartment, an d 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 o f the drugs. Additionally, even if Valentin's testimony w as not enough to demonstrate "use" under Bailey, it certai nly shows that Ramos at times had a gun in the second-f loor 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 h ave 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 P inkerton liability, it is not necessary to establish the ide ntity of the conspirator who personally committed the substantiv e offense. It is sufficient to show that this individ ual was a co-conspirator, that he or she committed the substa ntive offense, and that he or she did so in furtherance o f the conspiracy. Here, there was ample evidence to suppo rt such a finding. Accordingly, there was sufficient e vidence to support Ramos's S 924(c)(1) under a Pinkerton theor y of liability.

B. Jury Instructions

Ramos's remaining argument on appeal is that the "u se" instruction given to the jury at trial was erroneou s in light of Bailey. However, Ramos made no reference to the jury

___________________________________________________ ______________

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

10instructions in his S 2255 motion before the distri ct court,

and the district court understandably did not inter pret his motion as raising a question regarding the instruct ions. Under these circumstances, we are hesitant to consi der the issue on appeal. See United States v. Shovlin, 464 F.2d 1211 (3d Cir. 1972) (refusing to consider two addit ional grounds for habeas relief that were not raised befo re the district court or briefed before this court). Moreo ver, even if we were to read Ramos's pro se S 2255 motion as rai sing the issue, he still would not be entitled to relief in light of the Supreme Court's recent decision in United State s v. Bousley, 1998 WL 244204 (May 18, 1998). Because he did not raise the jury instruction issue on direct appe al, he procedurally defaulted on this issue, and under Bou sley it is apparent that Ramos cannot demonstrate either "c ause" for failing to raise the issue on direct appeal or "actual innocence." Bousley held that a S 2255 movant canno t 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. Furthermo re, Bousley concluded that, in order for a S 2255 movan t to show actual innocence, the movant must show "factua l 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 me t.

III.

For these reasons, we affirm the district court's o rder 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