Ramirez v. U.S.
| Decision Date | 05 November 2001 |
| Docket Number | No. CV 97-2608(ADS).,CV 97-2608(ADS). |
| Citation | 185 F.Supp.2d 246 |
| Parties | Marc RAMIREZ, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Marc Ramirez, White Deer, PA, Petitioner Pro Se.
Kevin M. Schad, Schad, Buda, Cook L.L.C., Cincinnati, OH, Former Attorney for Petitioner.
Alan Vinegrad, United States Attorney, Eastern District of New York, Brooklyn, NY, by Jo Ann M. Navickas, Assistant United States Attorney.
Petitioner Marc Ramirez (the "petitioner" or "Ramirez") commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2255. Specifically, the petitioner moves to vacate his conviction and sentence, or, in the alternative, "to order a new sentencing hearing based upon newly developed case law." Initially, the petitioner was represented by counsel, Kevin M. Schad, Esq. of Cincinnati, Ohio. However, some time in late 2000, Schad no longer represented the petitioner because of financial considerations. The petitioner is now proceeding pro se. A courtesy copy of this decision is being sent to petitioner's former counsel.
Ramirez and many other defendants, nine of whom were on trial with him, were charged with being members of a major drug ring called the "Unknown Organization." This Organization operated a retail and wholesale narcotics business in certain areas in Brooklyn. The Unknown Organization was led by Ricardo Melendez, consisted of approximately 100 members and grossed over ten million dollars a month from heroin sales, together with additional revenue from cocaine sales. The Organization sold its narcotics in glassine envelopes stamped with particular brand names, such as "Unknown," "Critical," "Rated PG," and "No Mercy."
The Unknown Organization purchased large quantities of pure heroin which was cut by an expert called "Nelson the Cutter." The heroin distributed by the Unknown Organization was highly desirable to drug users because it was among the most potent available in the New York area, being about 50 to 60 percent pure. After the heroin was cut, it was transported to various "mills" where it was diluted and placed in glassine bags by dozens of sometimes nude and masked workers. The glassine bags were placed in commercial egg crates and then sent to assorted "retail establishments," known as "spots" in various Brooklyn locations. Extensive and detailed records were kept by the Unknown Organization with regard to each operation, with specific amounts, names of participants and expenses involved in each operation. The Unknown Organization enforced its operation, warded off competition and prevented stealing by its own members by intimidation, torture and murder.
In September 1989, an Eastern District Grand Jury returned a superceding indictment charging 39 defendants in a 43 count indictment. The charges included narcotics trafficking, racketeering, and murder, kidnaping and maiming in furtherance of racketeering activity occurring from January 1985 to October 16, 1989, as part of the Unknown Organization.
Ramirez was named in two counts, the narcotics conspiracy and one substantive count. Count Two charged conspiracy to distribute and possess with intent to distribute in excess of 1 kilogram of heroin and in excess of 5 kilograms of cocaine from January 1985 to October 16, 1989 in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Count Thirty charged Ramirez with the attempt to possess with intent to distribute in excess of 1 kilogram of heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Both of these charges stemmed from a March 14, 1989 attempted heroin purchase in which the Government alleged that the petitioner was involved in a sting reverse buy in which a confidential informant named Phil Han was attempting to sell seven kilograms of heroin to Manuel Concepcion, a co-defendant and the head of the Unknown Organization, for the sum of approximately 1.1 million dollars, in which transaction Ramirez was heavily involved. The Government alleged that the petitioner, then 18 years old, and his friend "Jimmy" had arranged this heroin purchase.
On March 14, 1989, Manuel Concepcion, four co-conspirators and Ramirez were arrested while Concepcion was attempting to purchase approximately seven and one-half kilograms of heroin from Han, an informant. The arrest was preceded by a number of undercover meetings and telephone conversations, most of which were tape recorded. These conversations concerned negotiations between Ramirez and Han. During these conversations Ramirez vouched for Concepcion and co-conspirator Roberto Aponte. Ramirez told Aponte that he had access to more than seven kilograms of heroin. Aponte reported this to Concepcion who agreed to purchase the heroin. Ramirez was to receive between $90,000 and $100,000 for his role in this narcotics transaction.
In a short time Concepcion and others assembled more than one million dollars in cash. In subsequent conversations Ramirez pushed Han to hurry the deal to avoid keeping "his people" waiting.
Philip Han testified as follows:
Q The conversation you had with Ramirez after the 10:56 conversation, what did you and Mr. Ramirez talk about?
A I believe that's when he was asking me what is the delay, what is taking so long to do the deal.
* * * * * *
Q Did Ramirez ask you anything or did you tell him anything?
A Yes.
A He asked me if I had enough room for the money.
Q Enough room where?
A He said, do you have enough room for the money. And I asked why.
Q What did he say?
A He said because the monies (sic) is in five boxes.
Q After the conversation, did you talk to Ramirez again?
A Yes, I did.
Q How much afterwards was the next conversation?
A I don't recall exactly.
A 20 minutes, 30 minutes, I'm not sure.
Q During that conversation, what did you say to Ramirez and what did he say to you?
A He was again asking me what the problem was, to hurry it up, and he said someone else wanted to talk to me.
On March 14, 1989, the parties met to complete the deal. Ramirez, Concepcion and Aponte transported four boxes and a bag full of money to Han's car, and Ramirez then went with Han to pick up what he thought were bricks of pure heroin. After taking possession of the supposed heroin, federal agents arrested Ramirez and the others. At the time of the arrests, the drug traffickers were in possession of approximately $1.1 million in cash and three weapons, including an Uzi .9 millimeter submachine gun. While in custody, Ramirez made statements to the police that he merely supplied the market. These statements were introduced at the trial.
The petitioner was tried with nine co-defendants beginning on August 27, 1990 before this Court. The petitioner was represented by Lynne F. Stewart, Esq. at trial and on appeal. At the four-month long trial, the Government presented voluminous testimony regarding the Unknown Organization's activities.
At the trial the petitioner testified and presented a defense of entrapment. He testified that this March 14, 1989 attempt to broker a heroin deal was his only contact with dealing drugs. During his cross-examination, the Government brought DEA Agent Timothy Lum into the court-room and before the jury. The Government then asked the petitioner if he had met this person, Agent Lum, in December 1989 to discuss brokering another heroin deal. The petitioner denied this assertion.
The trial counsel for Ramirez did not object to this demonstration at the time of the cross examination. However, after the petitioner concluded his testimony his counsel entered an objection on the record to the presentment of what she characterized as 404(b) evidence and the "parading" of Agent Lum before the jury. On rebuttal, the Government called Agent Lum as a witness. Agent Lum testified that while working undercover in December 1989, he had been introduced to the petitioner at a restaurant in order to set up a heroin sale. However, Agent Lum testified that no deal was ever consummated.
Also during trial, the AUSA Peter R. Ginsberg read into the record a redacted statement from co-defendant Roberto Aponte. The AUSA referred to this statement as "redacted" in cross-examining the petitioner, and in discussing this statement with other witnesses and the court. Although counsel for the petitioner asserts that during his summation, the AUSA inserted the petitioner's name into the redacted statement, the Court did not find this in the trial transcript.
On December 23, 1990, the jury returned a verdict of guilty on both counts against the petitioner.
A Pre-Sentence Investigation report (PSI) was prepared on June 25, 1991. The PSI recommended that the petitioner's offense level should be increased by four levels pursuant to § 3B1.1(a) because the petitioner organized the offense, recruited individuals, and directed their activities.
The petitioner was sentenced on September 13, 1991 by this Court. The petitioner's offense level was enhanced two levels for firearms used in the drug transaction pursuant to Guideline 2D1.1(b)(1). The guideline level was also enhanced four levels for his participation as an organizer in a multiple participant offense pursuant to Guideline 3B1.1(a). The Court also granted a two level reduction for acceptance of responsibility. Counsel for the petitioner made a motion for a downward departure based on her own conduct in "misleading Mr. Ramirez into going to trial on an entrapment defense" and based on her feeling that "some other lawyer might have said, maybe you should plead guilty," especially since he was only eighteen years old at the time of the offense. The grounds for the application for a downward departure apparently were that this conduct on counsel's part, and the age of the defendant, were not taken into consideration by the Guidelines or were...
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