U.S. v. Ramos, 96-7356

• Decision Date: 26 June 1998
• Docket Number: No. 96-7356,96-7356
• Citation: 147 F.3d 281
• Parties: UNITED STATES of America, v. Lazaro Antonio RAMOS, a/k/a Tony Ramos, Lazaro Antonio Ramos, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 281

147 F.3d 281

UNITED STATES of America, v. Lazaro Antonio RAMOS, a/k/a Tony Ramos, Lazaro Antonio Ramos, Appellant.

No. 96-7356.

United States Court of Appeals, Third Circuit.

Argued Jan. 28, 1998.

Decided June 26, 1998.

Stephen M. Latimer, (Argued), Loughlin & Latimer, Hackensack, NJ, for Appellant Lazaro Antonio Ramos.

David M. Barasch, Theodore B. Smith, III., (Argued), Office of the United States Attorney, Harrisburg, PA, for Appellee United States.

Before: MANSMANN, COWEN, and ALITO, Circuit Judges.

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. § 2255 motion alleging that the evidence presented at trial was insufficient to support his conviction under 18 U.S.C. § 924(c)(1) in light of the Supreme Court's interpretation of that provision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (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. § 841(a)(1); distribution in excess of 100 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; distribution in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and using and carrying firearms during and in relation to drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 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 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 [sic] 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 § 924(c)(1). See United States v. 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 or firing 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, 9 F.3d 1542 (3d Cir.1993). Two years later, the Supreme Court held in Bailey that in order to be convicted under 18 U.S.C. § 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 § 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 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 § 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. § 2253(a) limited to the § 924(c)(1) issue.

II.

In his § 2255 motion, Ramos asserted that the evidence presented at trial was insufficient to sustain a § 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 § 924(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 testimony that guns were lying on a table in the room where a drug transaction took place is sufficient to sustain a § 924(c)(1) conviction. We conclude that it is.

In Bailey, the Supreme Court held that "use" under § 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 the evidence in the light most favorable to the government, we conclude that the evidence is sufficient to establish Ramos's guilt under § 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. Four 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);...