1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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 coconspirators, 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 coconspirators 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