In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3787

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTHUR L. RAMSEY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 03-30055-WDS—William D. Stiehl, Judge.

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ARGUED APRIL 8, 2004—DECIDED APRIL 18, 2005

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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. After a jury trial, Arthur L.

Ramsey was acquitted of assaulting a federal officer with a

dangerous weapon and found guilty of maintaining a drug

house by permitting his son to use the mobile home he

leased for distributing and possessing with intent to distribute crack cocaine. Although Ramsey appeals the district

court’s denial of his motion to dismiss from the indictment

of the drug house count, we find that the indictment

included the essential elements of the crime. We also find
2 No. 03-3787

based on our review of the evidence that the district court’s

failure to include the statute’s mens rea requirement was

harmless error. Thus, we affirm Ramsey’s conviction. However, in light of the Supreme Court’s recent decision in

United States v. Booker, 125 S.Ct. 738 (2005), and this court’s

decision in United States v. Paladino, 401 F.3d 471 (7th Cir.

2005), we order a limited remand regarding Ramsey’s

sentence.

I. Background

After receiving a tip from a confidential informant that

drug activity was taking place at a trailer located at 2820

Calvin Boulevard, Lot 20 in Cahokia, Illinois, and following

several controlled buys of drugs at the trailer, law enforcement obtained a warrant to search the mobile home. At that

time, law enforcement had no information relating to

defendant Arthur Ramsey.

Concerned about the possible presence of guns in the

home, a total of eighteen state and federal officers executed

the search warrant using a battering ram to gain entry.

Upon entry, Ramsey hit the lead officer of the entry team,

Investigator Tom Trice, of the St. Clair County Sheriff’s

Department, with a two-by-two stick at least twice. Eventually, officers secured Ramsey. The officers continued to

search the home and found another individual, Marrio

Robinson, who had crack cocaine in his jacket. Crack and

powder cocaine was also seized from a vacuum cleaner

found in Ramsey’s bedroom. In addition, two guns—one

found beneath the bathroom sink and the other in the back

bedroom—were seized from the property. Robinson told the

officers of other places in the trailer where drugs were

hidden. Police also found a small scale on top of the kitchen

counter. Both Ramsey and Robinson were arrested that day.

The next day, Ramsey signed a statement in which he

admitted that he rented the trailer from his daughter, that
No. 03-3787 3

Marrio Robinson was his son, and that Robinson moved in

with Ramsey. Ramsey admitted that he knew Robinson

dealt drugs out of the trailer. Ramsey also stated that he

told Robinson to stop dealing drugs, however Robinson

ignored him.

Ramsey was charged with assaulting a federal officer

with a dangerous weapon, in violation of 18 U.S.C. § 111,

and with maintaining a drug house in violation of 21 U.S.C.

§ 856(a)(2). At trial, one of the persons who participated in

the controlled buys from the trailer, Darin Varner, testified

that he had purchased crack cocaine from Robinson at the

trailer 35 to 40 times and that Ramsey was sometimes

present and would see Varner purchase the crack cocaine

from Robinson. On other occasions, Ramsey would leave the

room during the transactions. At the close of the prosecution’s case, Ramsey moved to dismiss the charge for

maintaining a drug house (Count VII) for failure to allege

that he managed and controlled the premises at issue. The

district court denied that motion. Over Ramsey’s objection,

the district court granted the prosecution’s request to remove the word “intentionally” from the jury instructions on

the same count. The jury acquitted Ramsey of the assault

charge. However, the jury found Ramsey guilty of maintaining a drug house.

At sentencing, the district court found Ramsey’s relevant

conduct to have involved approximately 20.8 grams of crack

cocaine. The district court concluded that based on Ramsey’s

criminal history category of I combined with his offense

level of 24, his possible sentence under the United States

Sentencing Guidelines ranged from 51 to 63 months. The

district court sentenced Ramsey to a term of imprisonment

of 54 months, two years of supervised release, a fine of

$400, and a special assessment of $100. Ramsey appeals the

sufficiency of the indictment, the content of the jury

instructions, sufficiency of the evidence, and the length of

his sentence.
4 No. 03-3787

II. Analysis

A. Sufficiency of the Indictment

Ramsey asserts that the district court erred by denying

his motion to dismiss the charge of maintaining a drug

house (Count VII) from the indictment. Ramsey argues that

the charging document failed to allege that he managed or

controlled the mobile home he was leasing, which is an

essential element of the crime charged.

This court reviews the sufficiency of an indictment de

novo. United States v. Sandoval, 347 F.3d 627, 633 (7th Cir.

2003); United States v. McLeczynsky, 296 F.3d 634, 636 (7th

Cir. 2002). We deem an indictment sufficient if it: (1) states

the elements of the offense charged; (2) fairly informs the

defendant of the nature of the charge so that he may

prepare a defense; and (3) enables him to plead an acquittal

or conviction as a bar against future prosecutions for the

same offense. McLeczynsky, 296 F.3d at 636 (citing Hamling

v. United States, 418 U.S. 87, 117 (1974)). Moreover, we

review indictments “on a practical basis and in their

entirety, rather than in a hypertechnical manner.” United

States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (internal

citations omitted).

Ramsey claims that Count VII of his indictment did not

state all the elements of 21 U.S.C. § 856(a)(2), the offense

for which he was charged. That statutory provision makes

it unlawful to:

manage or control any place, whether permanently

or temporarily, either as an owner, lessee, agent,

employee, occupant, or mortgagee, and knowingly

and intentionally rent, lease, profit from, or make

available for use, with or without compensation, the

place for the purpose of unlawfully manufacturing,

storing, distributing, or using a controlled substance.

Count VII of the indictment alleges that Ramsey:
No. 03-3787 5

did knowingly and intentionally, as the lessee, make

available for use a place, to wit: defendant permitted a mobile home he leased, located at 2820 Calvin,

Lot 20, in Cahokia, Illinois, in the Southern District

of Illinois, to be used for the purpose of distributing

and possessing with intent to distribute controlled

substances, namely mixtures and substances containing a detectable amount of cocaine base, commonly known as ‘crack’ cocaine, a Schedule II

Controlled Substance, in violation of Title 21[ ]

U.S.C. § 856.

Clearly the indictment failed to use the words “manage or

control.”

However, this court has held that not explicitly including

all the elements of the offense in an indictment is not fatal

so long as the absent elements can be deduced from the language that is actually included in the charging document.

See United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000)

(“It is not necessary to spell out each element, but each element must be present in context.”); see also United States v.

Hernandez, 330 F.3d 964, 978 (7th Cir. 2003) (“[The] words

[employed in the indictment] sufficiently convey the notion

of knowledge and intent, so it cannot be said that this

indictment fails to charge the offense by any reasonable

instruction.” (internal citations omitted)). The question therefore becomes whether “mak[ing] available” a place for illicit

use, that he “permitted a mobile home he leased,” and the

description of Ramsey “as the lessee” together sufficiently

encompass the meaning of “manage and control” to sustain

the indictment lacking those terms.

One cannot reasonably make a place available for another’s use nor permit another to use it if one does not manage or control the place. The indictment’s use of the word

“permitted” is particularly noteworthy here. Furthermore,

the indictment’s inclusion of the fact that Ramsey “leased”
6 No. 03-3787

1 Ramsey points to the Tenth Circuit’s decision in United States

v. Brown, 995 F.2d 1493 (10th Cir. 1993) to support his claim.

That case held that the government’s failure to include in the indictment for a violation of § 856(a)(2) the allegation that defendant

was an owner, lessee, agent, employee or mortgagee amounted to

a failure to allege all the essential elements of the offense under

§ 856(a)(2) and hence was a jurisdictional defect requiring dismissal. However, the Tenth Circuit overruled Brown in United States

v. Prentiss, 256 F.3d 971 (10th Cir. 2001), which held that such

defects in an indictment are now subject to harmless error review.

the mobile home in question and that he was “the lessee”

also suggest he had control over the establishment. On

balance, while we agree that the indictment was not a

model charging document, under Smith and Hernandez, it

is sufficient.1

B. Jury Instructions

Ramsey contends we should reverse his conviction for

maintaining a drug house in violation of 21 U.S.C.

§ 856(a)(2) because the district court did not properly

instruct the jury on the mens rea requirement under the

statute, despite Ramsey’s objection. In our review of jury

instructions for alleged errors of law, we reverse only if the

instructions, “viewed as a whole, misguide the jury to the

litigant’s prejudice.” United States v. Souffront, 338 F.3d

809, 834 (7th Cir. 2003); Smith, 223 F.3d at 566. We note

that as long as “the instructions treat the issues fairly

and accurately, they will not be disturbed on appeal.”

Souffront, 338 F.3d at 834 (internal citations omitted).

As noted above, Title 21 U.S.C. § 856(a)(2) provides:

it shall be unlawful to . . . manage or control any

place, whether permanently or temporarily, either

as an owner, lessee, agent, employee, occupant, or
No. 03-3787 7

mortgagee, and knowingly and intentionally rent,

lease, profit from, or make available for use, with or

without compensation, the place for the purpose of

unlawfully manufacturing, storing, distributing, or

using a controlled substance.

Ramsey directs our attention to the mens rea language

“knowingly and intentionally.” However, the district judge

issued the following instruction on this point:

To sustain the charge of making available a place

for use for the purpose of distributing and possessing with intent to distribute controlled substances,

as charged in Count 7 of the Indictment, the Government must prove: First, that the defendant

controlled, or managed as a lessee a place, to wit,

the mobile home he leased located at 2820 Calvin

Lot 20, Cahokia, Illinois. And second, that the

defendant knowingly allowed others to use said place

for the purpose of the distribution and possession

with intent to distribute crack cocaine, or remained

deliberately ignorant of it.

In other words, the district court did not include the “intentionally” element in its instruction, despite Ramsey’s

objection. Further, the district court defined deliberate ignorance as follows:

As used in these instructions, the purpose may be

that of others. The defendant is liable if he manages or controls a building that others use for an

[illicit] purpose, and he either knows of the illegal

activity or remains deliberately ignorant of it. The

illegal purpose need not be the sole or primary use

of the place in question[;] it is sufficient if it is one

of the uses in question.

Several circuits, including this one, have held that knowing

or “remaining deliberately ignorant” satisfies the knowledge

component of § 856(a)(2). See United States v. Banks, 987
8 No. 03-3787

F.2d 463, 466 (7th Cir. 1993) (“In (a)(2) the ‘purpose’ may be

that of others; the defendant is liable if he manages or

controls a building that others use for an illicit purpose, and

he either knows of the illegal activity or remains deliberately ignorant of it.”); United States v. Chen, 913 F.2d 183,

192 (5th Cir. 1990) (“[W]e hold that the phrase ‘for the

purpose of’ contained in § 856(a)(2) of the statute does not

preclude a deliberate ignorance instruction for the knowledge element of that subsection.”) (emphasis in original);

United States v. Tamez, 941 F.2d 770, 774 (9th Cir. 1991)

(“[Section 856] (a)(2) was intended to prohibit an owner

from providing a place for illegal conduct, and yet to escape

liability on the basis either of lack of illegal purpose, or of

deliberate ignorance . . . section 856(a)(2) requires only that

proscribed activity was present, that [the defendant] knew

of the activity and allowed that activity to continue.”) Yet, as

Ramsey points out, a deliberate indifference instruction

only goes to the statute’s knowledge requirement.

The “intentionally” element can be satisfied by the government proving beyond a reasonable doubt that the defendant

intentionally permitted another person to use the property

at issue and that the other person used it for an illicit

purpose about which the defendant knew. See Tamez, 941

F.2d at 774 (holding that § 856(a)(2) “was intended to prohibit an owner from providing a place for illegal conduct,

and yet to escape liability on the basis either of lack of

illegal purpose, or of deliberate ignorance”); United States

v. Bilis, 170 F.3d 88, 92 (1st Cir. 1999) (stating § 856(a)(2)

requires the government to prove beyond a reasonable

doubt “(1) that [the defendant] managed or controlled [the

place at issue]; (2) that [the defendant] knowingly and intentionally made [the place] available for use to others; and

(3) that [the defendant] made [the place] available for the

purpose of unlawfully possessing or distributing a controlled

substance.” (emphasis added)).

Ramsey claims that he could have argued at trial he did
No. 03-3787 9

not intentionally allow his son Marrio Robinson to use the

mobile home but rather was coerced into doing so, given the

presence of Robinson’s guns. While this argument might

negate the “intentionally” component of the offense, Ramsey

did not raise it in the trial court. Nor did he offer a jury

instruction that would negate his intent to allow his son to

use his home. These arguments are therefore waived. Belom

v. Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002)

(“[A]s we have often observed, arguments not raised in the

district court are waived on appeal.”) Even if we were to

reach the issue, Ramsey admitted to the police after his

arrest that he allowed his son to live with him in the mobile

home.

In any case, “[a] court of review should proceed cautiously

when asked to set aside a jury’s verdict . . . on the ground

that the instructions contained erroneous or confusing

passages.” United States v. Goines, 988 F.2d 750, 773 (7th

Cir. 1993) (internal citations omitted). And if “it appears

beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained,” then the error was

harmless. Neder v. United States, 527 U.S. 1, 15 (1999)

(applying harmless error analysis to the district court’s failure to include an element of an offense in its instructions to

the jury). In other words, if the evidence is so strong that a

jury would have reached the same verdict absent the erroneous jury instruction, then the error is harmless. Goines,

988 F.2d at 773. Upon our review of the sufficiency of the

evidence detailed below, we conclude that the district court’s

failure to include in its instructions to the jury that it must

find Ramsey “knowingly and intentionally” made his leased

home available for his son’s illegal use amounted to harmless error beyond a reasonable doubt. Cf. Hernandez, 330

F.3d at 978-79 (finding no plain error when jury instructions

omitted the statute’s scienter requirement of “intentionally”

and only included “knowingly” when other words used in

the instructions were sufficient to convey the requisite
10 No. 03-3787

mental state).

C. Sufficiency of the Evidence

On challenges to the sufficiency of evidence, “we review

the evidence in the light most favorable to the prosecution

and will reverse a jury verdict only when the record is

devoid of any evidence, regardless of how it is weighed, from

which a jury could find the defendant guilty beyond a

reasonable doubt.” United States v. Macedo, 371 F.3d 957,

965 (7th Cir. 2004) (internal citations omitted). We note

that while an insufficiency of the evidence claim is not

impossible, “it is nevertheless a steep hill to climb.” Id.

Ramsey appeals the district court’s decision to enter judgment on the jury’s guilty verdict on the charge under 21

U.S.C. § 856(a)(2), claiming that there was insufficient

evidence to support a finding that he maintained a drug

house in violation of the statute. He contends that the

government submitted no evidence demonstrating that he

acted “intentionally,” as the statute requires. As a result,

Ramsey argues, no rational jury could have found that he so

acted beyond a reasonable doubt and his conviction must be

reversed. We disagree. There was ample evidence demonstrating that Ramsey intentionally allowed his son Marrio

Robinson to use the mobile home Ramsey leased. Ramsey

admitted to the police that he rented the trailer from his

daughter and that his son moved in with him. He also

admitted to the police that he knew Robinson dealt drugs

out of the mobile home. There was no evidence that Robinson coerced his father into allowing Robinson to live there.

Further, Varner (one of the persons who participated in

controlled drug buys leading to Ramsey’s and Robinson’s

arrests) testified that he bought crack cocaine from Robinson in a house he shared with Ramsey in Belleville, Illinois,

before they moved to the mobile home in Cahokia.
No. 03-3787 11

The other evidence submitted to the jury also supports a

finding of guilt. Varner testified that he bought crack

cocaine from the mobile home at all hours of the day and

night. Varner also testified that he had seen guns, drugs,

and a scale used to measure the drugs, all in common areas

in the trailer. Agents watching the trailer noted suspicious

activity, such as numerous cars driving up to the home and

people briefly entering and leaving the home. In addition,

crack cocaine, a scale, and guns were all found in Ramsey’s

home. The record is not devoid of evidence from which a

jury could find Ramsey guilty beyond a reasonable doubt.

D. Sentence

Ramsey argues that the district court erred in sentencing

him in violation of the Sixth Amendment when the district

court, and not a jury, made its own finding of the amount of

crack cocaine involved in Ramsey’s offense. This finding by

the district court increased Ramsey’s sentence. Recently,

the Supreme Court held that any fact, other than a defendant’s prior conviction, used to increase one’s sentence must

be admitted by the defendant or found beyond a reasonable

doubt by a jury. United States v. Booker, 125 S.Ct. 738, 756

(2005).

Because Ramsey did not raise his Sixth Amendment objection in the district court, we review for plain error. “Under

[the plain error] test, before an appellate court can correct

an error not raised at trial, there must be (1) ‘error,’ (2) that

is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” United

States v. Cotton, 535 U.S. 625, 631 (2002) (quoting Johnson

v. United States, 520 U.S. 461, 466-67 (1997)). “If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S.

at 467).
12 No. 03-3787

Enhancement of Ramsey’s sentence based on facts not

admitted by the defendant or proven to a jury beyond

reasonable doubt does, under the new Booker regime, constitute error that is plain. See Paladino, 401 F.3d at 481.

The 54-month sentence Ramsey received was toward the

low end of the then-mandatory Guideline range. We are unable to determine whether Ramsey was prejudiced, however, because we cannot know whether the district court,

with the increased discretion permitted by Booker, would

have imposed the same sentence. Therefore, we will retain

jurisdiction of the appeal and “order a limited remand to

permit the sentencing judge to determine whether he would

(if required to resentence) reimpose his original sentence.”

Id. at 484. On remand, the district court should proceed

with the procedure we set forth in Paladino. If the district

court determines that it would have imposed the same sentence, we may know for certain that Ramsey was not prejudiced. Without a showing of prejudice, Ramsey’s plain error

challenge will fail. We will still, however, review the sentence

for reasonableness. Id. If the district judge determines that

with more discretion, the sentence would have been different,

we will vacate and remand the case for resentencing, having

predetermined that such an illegal sentence that has prejudiced the defendant constitutes a miscarriage of justice. Id.

III. Conclusion

For the reasons stated above, we AFFIRM Ramsey’s conviction. While retaining jurisdiction, we order a limited

REMAND of Ramsey’s sentence in accordance with Booker,

Paladino, and this opinion. The district court is directed to

return this case to us when the limited remand has been

completed.

A true Copy:

Teste: 

 ________________________________
No. 03-3787 13

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-18-05