U.S. v. Ramsey

Decision Date02 April 1999
Docket Number97-3184,Nos. 97-3100,s. 97-3100
Citation165 F.3d 980,334 U.S.App. D.C. 193
PartiesUNITED STATES of America, Appellee, v. Charles W. RAMSEY, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 95cr00326-01).

Francis D. Carter, appointed by the court, argued the cause for the appellant.

Charles W. Ramsey filed a brief pro se.

Michael Fitzpatrick, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney, and John R. Fisher, Mary-Patrice Brown and John P. Dominguez, Assistant United States Attorneys, were on brief for the appellee.

Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Charles Ramsey was convicted of one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). Through counsel, Ramsey raises several issues, including whether the trial court erred: (1) in allowing the Government to introduce evidence of Ramsey's character; (2) in failing to find entrapment as a matter of law and (3) in sentencing Ramsey to 210 months' imprisonment. Ramsey pro se appeals the Government's use of Francisco Fierro as an informant witness. Finding no error, we affirm Ramsey's conviction and sentence.

I. Background

On December 14, 1995, Ramsey was charged in a two-count indictment with one count of possessing cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii), and one count of attempted possession with intent to distribute, see 21 U.S.C. § 846. The charges arose out of a Drug Enforcement Administration (DEA) undercover operation that began earlier in 1995 when Francisco Fierro agreed to assist DEA as an informant, following his arrest for attempted murder and various weapons offenses after a fight in a Miami restaurant. Although Fierro could provide no leads in Florida, DEA decided to use Fierro as an informant in the Washington, D.C. area because his main client had been a Washington-area drug dealer named Charles Ramsey. Fierro informed DEA Agent Ronald Woods that he had delivered substantial quantities of drugs to Ramsey in Washington at least eight times in 1993-94 and that Ramsey accounted for all of his kilogram-level sales.

The first transaction between Fierro and Ramsey took place in Georgetown in early 1993 when Fierro delivered approximately seven ounces of heroin to Ramsey. Seven times over the following year, Fierro delivered between one and ten kilograms of cocaine to Ramsey, selling him into two 39 kilograms of cocaine for approximately $20,000 each. 1 The two men used a delivery procedure that involved a meeting, usually in a hotel room, where Fierro "fronted" Ramsey one or two kilograms. Ramsey then left to sell the cocaine and returned later with payment. Fierro then fronted Ramsey another one or two kilograms and Ramsey repeated the procedure until all of the drugs had been sold, usually within one week. In mid-1994, at his wife's insistence, Fierro left the drug trade.

In September 1995 DEA decided to use Fierro in a "reverse" undercover operation against Ramsey. DEA's initial plan was to conduct the transaction differently from the way Fierro and Ramsey had traditionally done business--by making Ramsey pay for the drugs up front. DEA also sought to increase its control over the operation by having DEA Agent Robert Valentine pose as a drug dealer. Fierro's role was to facilitate the exchange between Valentine and Ramsey.

Between mid-September 1995 and his arrest on November 21, 1995, Ramsey and Fierro had numerous recorded telephone and face-to-face conversations about drug transactions. Most of the conversations were recorded by DEA or by Fierro using DEA-supplied equipment. On September 25, 1995 Ramsey met Fierro in a hotel room. During a videotaped conversation, they discussed a five-kilogram transaction and the fact that Valentine, posing as the distributor, required payment up front. While Ramsey was eager to move several kilograms, he did not have the cash to buy the drugs at delivery. On October 6, 1995 Valentine and Ramsey met without Fierro at a restaurant. Ramsey mentioned that Washington was currently "dry" of cocaine on both the wholesale and retail levels, a fact consistent with DEA information. Ramsey wanted to know if the drugs could be fronted but Valentine refused. Nevertheless, Valentine assured Ramsey that he would contact him about selling five kilograms of cocaine.

On October 24, 1995 Valentine and Fierro met Ramsey at a hotel. They had cocaine with them. In an audio taped conversation Ramsey asked to see the cocaine but, after going "around and around" with Valentine, still refused to pay up front. Tr. at 506. The three men arranged to meet again on November 2, 1995. On November 2, in a videotaped conversation in Valentine's car, Valentine showed Ramsey five one-kilogram bricks. Ramsey said that he could move the cocaine quickly and offered to pay for one kilogram but not until 8:00 p.m. that evening. Becoming increasingly suspicious, Valentine rejected the offer.

After this transaction fell through, it was clear to DEA that Ramsey would not deal unless he was fronted the drugs and that Ramsey preferred to deal only with Fierro. Therefore, DEA changed its strategy by pulling Valentine out of the operation and instructing Fierro to arrange a buy using his old procedure. On November 15, 1995 Fierro contacted Ramsey and offered to front him five kilograms on November 21, 1995. When Ramsey arrived at Fierro's hotel room on the 21st, Fierro showed him the five one-kilogram bricks. Agreeing to a cost of $20,000 each, Ramsey decided to take two kilograms and said that he would return for the other three. Ramsey then placed the two bricks inside a black duffle bag and left the room. He was arrested by DEA agents in the hallway and the drugs were recovered from his bag. 2

On May 14, 1996 Ramsey's jury trial commenced in the district court. On May 21, 1996 the jury returned a guilty verdict on the first count. Before sentencing, Ramsey filed a pro se motion for a new trial, arguing ineffective assistance of counsel. The district court appointed new counsel on September 16, 1996 and issued an order on June 27, 1997 denying Ramsey's new trial motion as not timely filed. After a hearing, the district court denied Ramsey's objections to the presentence report in a December 15, 1997 order. On December 17, 1997 the district court sentenced Ramsey to 210 months' imprisonment followed by eight years of supervised release. Ramsey timely filed this appeal, requesting that his conviction be reversed or, alternatively, that he be resentenced.

II. Discussion
A.

On appeal, Ramsey advances several arguments, all without merit. First, Ramsey argues that the district court erred by twice admitting Valentine's testimony about Ramsey's past criminal history. The district court, however, did not abuse its discretion 3 in admitting the evidence because Valentine's testimony was not elicited to show Ramsey's propensity to commit a crime, see Fed.R.Evid. 404(a), but rather as a response to defense counsel's attempts to challenge the voluntariness of Ramsey's statement and to defense counsel's theory that DEA had entrapped Ramsey based on the "lies" of its informant, Fierro. As the record manifests, Ramsey's counsel raised the subject of his client's extensive criminal history. See United States v. Davis, 127 F.3d 68, 71 (D.C.Cir.1997) ("The elicitation by the defense of the very testimony now challenged ... for its own affirmative purposes, is an independent reason for finding no error...."), cert. denied, --- U.S. ----, 119 S.Ct. 215, 142 L.Ed.2d 177 (1998); United States v. Baumgarten, 517 F.2d 1020, 1029 (8th Cir.1975) (finding no prejudice from redirect regarding defendant's prior arrests after defense counsel, on cross-examination of government witness, raised issue), cert. denied, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975). Moreover, Ramsey was not prejudiced by the testimony since the Government had already introduced evidence of two previous narcotics convictions to rebut Ramsey's entrapment defense.

Second, Ramsey contends that Valentine provided opinion testimony about the drug trade even though he was not qualified as an expert witness under Federal Rule of Evidence 702. 4 We believe that the district court did not plainly err in admitting this testimony. Although the trial judge never formally qualified Valentine as an expert witness, his testimony functionally satisfied the requirements for expert testimony set forth in Federal Rule of Evidence 702. 5 See United States v. Walls, 70 F.3d 1323, 1326 (D.C.Cir.1995) (finding opinion testimony admissible under Rule 702 as " 'specialized knowledge' [that] would 'assist the trier of fact to understand the evidence' ") (quoting Fed.R.Evid. 702), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996); United States v. McDonald, 933 F.2d 1519, 1522 n. 2 (10th Cir.) (where "the court heard the witness describe his qualifications, including his specialized knowledge, education, skill and experience, and then allowed the witness to give opinion testimony," appellate court can assume witness was accepted as expert witness), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 222 (1991); United States v. Maher, 645 F.2d 780, 783-84 (9th Cir.1981) (DEA agent not qualified as expert but his expert testimony on drug trade was upheld in light of his experience).

We also find no plain error in the district court's failure to instruct the jury regarding the proper weight to be given Valentine's opinion testimony since Ramsey can show no prejudice from the admission of that...

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