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UNITED STATES v. RAMOS

July 16, 1997

UNITED STATES OF AMERICA
v.
MARIA RAMOS, A/K/A "DONITA"; and ELIZABETH RAMOS, A/K/A/ "LISI"



The opinion of the court was delivered by: DUBOIS

 DUBOIS, J.

 JULY 16, 1997

 Maria Ramos and Elizabeth Ramos each petition this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their sentences. Maria and Elizabeth Ramos were tried together and both convicted of drug related crimes. In separate Petitions filed May 17, 1995, each raised numerous claims. At a hearing on March 14, 1997, each knowingly, voluntarily and intelligently waived all but two claims on advice of counsel after an extensive colloquy. In the first of the two remaining claims they each argue that their separate trial counsel were ineffective for failing to object to the admission of, or, in the alternative, failing to request a limiting instruction regarding testimony concerning the extremely violent behavior of several co-conspirators. Secondly, petitioners object to the Government's failure to file a motion to reduce their sentences under Federal Rule of Criminal Procedure 35(b). Because the Court finds that trial counsel were not constitutionally ineffective in their representation of petitioners, and because the Government did not act inappropriately in electing not to file a motion under Rule 35, the Court will deny the Petitions.

 I. Background

 Petitioner Maria Ramos, her daughter, petitioner Elizabeth Ramos, and Maria Ramos' three sons, Richard, Jerry and Edwin Ramos, were leaders of the Ramos Cocaine Organization ("RCO") which, through the employment of over one hundred workers, distributed massive amounts of cocaine and crack cocaine in the Spring Garden area of Philadelphia, Pennsylvania between 1985 and September of 1990. At its peak in the Summer of 1989 the RCO had organized around the clock sales of cocaine and crack cocaine in three daily eight-hour shifts and sold over $ 15,000 of cocaine and $ 20,000 of crack cocaine each day. Indictment at P 29.

 Petitioners and thirty-nine (39) other persons were charged with conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846 and other drug related crimes. *fn1" Excepting petitioners (and one person against whom charges were dismissed) each defendant plead guilty. After a joint trial Maria and Elizabeth Ramos were convicted of conspiracy to distribute cocaine and cocaine base. Maria Ramos was also convicted of distribution of cocaine and possession of cocaine with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). On February 25, 1993 Maria Ramos was sentenced to life imprisonment. Elizabeth Ramos was sentenced on February 25, 1993 to 324 months in prison. *fn2"

 II. Petitioners' Claims Regarding Violent Testimony

 A. Factual Background

 Petitioners first object to the testimony of three cooperating government witnesses regarding the attack on a man known as "Capone" on or about March 16, 1990. David Serrano, Daniel Serrano and Jesse Ramos, Maria Ramos' nephew, all members of the RCO and indicted co-conspirators, described how the Serrano brothers and Jerry Ramos wrapped Capone's hands, feet and head in duct tape "like a mummy" and beat him. Jesse Ramos, Feb. 5, 1992, Tr. at 206-08; see also David Serrano, Jan. 31, 1992, Tr. at 149-51; Daniel Serrano, Feb. 3, 1992, Tr. at 120-21. The beating was so brutal that Jesse Ramos said he could not watch, and turned away in shock. Feb. 5, 1992, Tr. at 206-208. David Serrano described how he used pliers to extract Capone's teeth; the three then referred to Capone as "Gumby." *fn3" Jan. 31, 1992, Tr. at 149-51. Maria and Elizabeth Ramos did not participate in this attack.

 Secondly, petitioners object to the admission of testimony by Virginia Navarro concerning violence. Virginia Navarro described a beating of her husband late in the evening of July 7, 1989 by 16 people. Feb. 5, 1992, Tr. at 15-16. Navarro's husband was hit with baseball bats resulting in bleeding "everywhere throughout his head because they broke his head three times." Id. Petitioners did not participate in this episode.

 Lastly, petitioners object to testimony of David Velasquez and Marco Villafane, both indicted co-conspirators and cooperating government witnesses, about the beating of Anthony Velasquez by Maria and Richard Ramos and others in a hotel on or about September 25, 1988. David Velasquez explained that Anthony, his brother, was beaten because Richard Ramos suspected that Anthony had stolen drugs from the RCO. Feb. 7, 1992, Tr. at 50-51. David Velasquez described that Anthony had a swollen face and his fingernails were "pulled out." Id. at 51. Additionally, David Velasquez related that his brother reported that Maria Ramos had kicked him in the face. Id. at 52. Marco Villafane completed the story, explaining that shortly after the beating of Anthony, he heard a rumor that Anthony was killed. Id. at 105.

 B. Legal Analysis

 Federal prisoners may properly raise allegations of ineffectiveness of counsel in a § 2255 petition. See United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir. 1993), cert. denied, 511 U.S. 1033, 128 L. Ed. 2d 196, 114 S. Ct. 1544 (1994) (finding that a § 2255 petitioner is not held to the cause and prejudice standard of United States v. Frady, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982), if the ineffective assistance claim is raised in the first instance in a § 2255 motion). Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a petitioner alleging ineffectiveness of counsel must make a twofold showing in order to demonstrate a violation of the Sixth Amendment right to counsel warranting reversal of a conviction and a new trial. First, a petitioner must establish that counsel's performance was so deficient that it falls below "an objective standard of reasonableness." See id. at 688. Second, a petitioner must demonstrate that counsel's "deficient performance prejudiced the defense;" that is, there is a reasonable probability that the result would have been different but for the deficient performance. Id. at 687.

 The Court first concludes that all of the testimony at issue was admissible, consistent with Rule 404(b) and Rule 403, and that petitioners' counsel were not deficient in failing to file motions in limine or to object to the testimony. Second, the Court concludes that counsel were not constitutionally ineffective for failing to request a limiting instruction or an instruction for inclusion in the Court's charge to the jury: because there was overwhelming evidence against petitioners, and because the prosecutors themselves explained to the jury the limited purposes for the testimony, the Court concludes that petitioners were not prejudiced by counsel's failure to ask for an instruction to the jury. Otherwise stated, had such an instruction been given, there is not a reasonable probability that the result would have been different. Thus, with respect to counsels' failure to move for a limiting instruction (either immediately after the testimony or as part of the jury charge) the Court concludes that counsel were not constitutionally ineffective. Petitioners' claims relating to the testimony of violent acts will therefore be denied.

 At the outset, the Court reiterates that, excepting only the attack on Anthony Velasquez, in which Maria Ramos participated, the testimony challenged did not directly involve petitioners, but rather involved the activities of petitioners' co-conspirators. (Petitioners did, however, participate in or condone other violent acts). The import of this distinction, that is, that a majority of the challenged testimony did not directly concern the actions of the petitioners, is that the issue is most appropriately addressed not under Rule 404(b) but within the rubric of Rule 403. As explained infra, Rule 404(b) is inapplicable because the violent acts which were the subject of the challenged testimony were in furtherance of and intrinsic to the overarching conspiracy for which petitioners were charged. *fn5" Thus, the claim that petitioners were prejudiced by the introduction of testimony regarding bad acts committed by their co-conspirators will be weighed under Rule 403. See United States v. Brady, 26 F.3d 282, 287-82 (2d Cir.) (after determining that evidence of crimes committed by cooperating co-conspirators was ...


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