such testimony was probative as evidence of the conspiracy. See United States v. Arboleda, 929 F.2d 858, 865-66 (1st Cir. 1991); United States v. Thomas, 875 F.2d 559, 562 n.2 (6th Cir.), cert. denied, 493 U.S. 867, 107 L. Ed. 2d 144, 110 S. Ct. 189 (1989).
Although the evidence may have been graphic, there was nothing "unfair" in presenting it to the jury. The evidence was illustrative of the rigor of the enforcement utilized by the RCO, and petitioners themselves. See Thai, 29 F.3d at 813 (concluding that graphic detail of 30 minute beating and the "copious flow of blood" which still stained the walls of the room several months later was probative of discipline imposed by enterprise leaders and thus outweighed the danger of prejudice); Chandler, 996 F.2d at 1101-02 (holding that evidence of threats and subsequent disappearances was not "unfairly" prejudicial where it was probative of defendant's attempt to protect his organization). "Moreover, it is well known that continued exposure to even emotion-arousing [evidence] tends to reduce [its] effect." United States v. Cahalane, 560 F.2d 601, 607 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 54 L. Ed. 2d 796, 98 S. Ct. 890 (1978).
Nor does the fact that Elizabeth Ramos did not directly participate in any of the attacks which were the subject of the challenged testimony or that Maria Ramos did not take part in two of the three episodes render such testimony unfairly prejudicial. First, although neither participated in the attack on Navarro's husband, description of that event was necessary in order to properly relate the context of the beating of Virginia Navarro the next day, in which both petitioners partook, and the beating of Navarro's son, also that day, in which Elizabeth participated. Also, Maria Ramos contributed to the attack of Anthony Velasquez. Further, there was other testimony at trial regarding acts of brutality in which petitioners took part or condoned. For example, Maria Ramos attacked an elderly woman as Elizabeth Ramos simply observed nearby. Hayde Rivera, Feb. 11, 1992, Tr. at 73. Moreover, David Serrano testified that Maria Ramos exclaimed: "anybody that messes with any of my sons, I'll put a ticket on their ass." Jan. 31, 1992, Tr. at 137.
Significantly, the Government never suggested that petitioners committed any of the specific acts of violence which were the subject of the challenged testimony, excepting only the attack on Anthony Velasquez in which Maria participated. See United States v. Brady, 26 F.3d 282, 287-88 (2d Cir.) (where government introduced evidence of murders committed by co-conspirators to show existence and nature of conspiracy but made no suggestion that defendants committed any of the murders at issue, the court found that the evidence was not unduly prejudicial), cert. denied, 513 U.S. 894, 130 L. Ed. 2d 168, 115 S. Ct. 246 (1994). Rather, in its rebuttal argument the Government explained to the jury that petitioners had not engaged in such episodes (excepting, of course, Maria's participation in the beating of Velasquez). See Feb. 12, 1992, Tr. at 137-38 (stressing to the jury that it was not to "cast any aspersions" on petitioners based on "bad things done by other people" and that the jury was to "sift what concerns [petitioners] from what doesn't concern "[petitioners]"). For example, the Government specified that petitioners "had absolutely nothing to do with" the attack on Capone. Id.
Finally, "it is difficult to conclude that there is a prejudicial spillover where, as here, there is substantial independent evidence of [petitioners'] guilt." United States v. Sandini, 888 F.2d 300, 307 (3d Cir. 1989), cert. denied sub nom., Thomson v. United States, 494 U.S. 1089, 108 L. Ed. 2d 959, 110 S. Ct. 1831 (1990). In building a case of overwhelming evidence of guilt, the Government presented the testimony of 20 witnesses, including 13 cooperating witnesses. This plethora of witnesses testified to the leadership and supervisory roles petitioners played in the organization. The witnesses detailed how Maria Ramos' home was the nerve center of all activities. From her home, Maria Ramos collected all sales revenue and circulated orders and instructions. Elizabeth supervised the packaging of cocaine for all locations, and occasionally picked up proceeds and delivered drugs. To rebut this evidence, only Elizabeth Ramos testified, contradicting herself on numerous occasions. After only four hours of deliberations, the jury convicted petitioners on all counts.
Thus, in light of the unusual facts of this case, the Court concludes that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence.
Although petitioners argue that the record was poisoned because the evidence was overly prejudicial as it tempted the jury to make bad character or association inferences, any risk that the jury would have been prone to convict petitioners due to any inferences they might make from the challenged testimony was outweighed by the importance of the testimony and the overwhelming independent evidence against petitioners. See United States v. Scarfo, 850 F.2d 1015, 1020 (3d Cir. 1988) (explaining that although "evidence of the defendant's participation in various murders would normally be excludable as irrelevant and unduly prejudicial," under the unique facts of the case the evidence was essential to the government's case); see also United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir. 1996) (finding that evidence of defendant having raped his kidnapping victim was genuinely needed to prove the kidnapping charge); Church, 955 F.2d at 700 (concluding that in proving that defendant conspired to murder, probative value of evidence of a separate conspiracy to murder defendant's partner outweighed its prejudicial effect); Eufrasio, 935 F.2d at 573 (concluding that the relevance of evidence of uncharged Mafia crimes was so substantial as to offset its potential to cause prejudice to defendants). As such, the testimony was not barred by Rule 403, and, because the testimony also was not precluded by Rule 404(b), petitioners' counsel were not ineffective for failing to file motions in limine or for failing to object to that evidence at trial.
3. Counsels' Failure to Seek a Limiting Instruction
Although the Court finds that the challenged testimony was not barred by Rules 404(b) or 403, the Court must still address petitioners' claims that their counsel were ineffective for not requesting a cautionary instruction from the Court immediately after the challenged testimony or for not submitting to the Court a jury instruction advising the jury of the limited purposes for which they could consider the testimony. Federal Rule of Evidence 105 provides that "when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Fed.R.Evid. 105.
The Court concludes under the second prong of Strickland that even if counsel did request a limiting instruction and even if the jury had been given an instruction from the Court--either immediately after the challenged testimony or as part of the jury charge--in light of the substantial evidence against petitioners and in view of the fact that the Government explained to the jury that it should not consider the evidence for improper purposes, there is not a reasonable probability that the result would have been different.
Thus, the Court need not reach the first prong of Strickland ; that is, it is not necessary for the Court to determine whether counsel were deficient in failing to request a limiting instruction to the jury. Counsel were not constitutionally ineffective for failing to take such action, and petitioners' claims will be denied, because there is no showing of prejudice.
Petitioners were not prejudiced by the absence of a limiting instruction from the Court because, upon weighing all the evidence presented at trial, the Court concludes that there was weighty independent evidence of guilt, see supra at 21. Twenty witnesses, including 13 cooperating witnesses, testified to the central roles petitioners played in the RCO, from collecting money and packaging drugs to using violence to protect that money and drugs. Petitioners were convicted on all counts after only four hours of jury deliberation.
Moreover, the absence of a limiting instruction from the Court did not prejudice petitioners because the Government did not argue that petitioners engaged in the attack on Capone or Virginia Navarro's husband, that Elizabeth Ramos participated in the beating of Anthony Velasquez, or that petitioners were likely to have committed the crimes charged simply because they associated with those co-conspirators who engaged in such acts. To the contrary, the Government explained to the jury that petitioners should not be judged based on acts which they did not commit. Cf. United States v. Brady, 26 F.3d 282, 287, 288 (2d Cir.) (finding that there was no indication that the government attempted to imply that defendants had committed any of the murders which were the subject of the testimony at issue), cert. denied, 513 U.S. 894, 130 L. Ed. 2d 168, 115 S. Ct. 246 (1994). Specifically, the Government told the jury in its rebuttal argument that the challenged testimony regarding the violent acts was not to be considered by the jurors as proof of acts committed by petitioners or in order to taint their character:
As far as the bad things done by other people, I don't really think we admitted those to cast any aspersions on these defendants because you know from seeing how cross-examination works that if we hadn't raised them, they would have. If we didn't ask David Serrano something like -- about the teeth pulling, something that these defendants had absolutely nothing to do with, you can be sure that the first questions on cross-examination, since they have all this discovery and they know everything about these people, would be, aren't you somebody who pulled out somebody's teeth with a pair of pliers? We know that's important to juries in considering the testimony of witnesses, and that's why we brought it up. We know that you are able to sift what concerns them from what doesn't concern them. You know what evidence was directed against Maria and Elizabeth Ramos, and it's that overwhelming evidence that proves this case.
February 12, 1992, Tr. at 137-38 (emphasis added).
III. Petitioner's Claim Regarding Rule 35
At the Hearing on the Motions held on March 14, 1997, the petitioners sought review of the Government's decision not to file a motion under Federal Rule of Criminal Procedure 35(b) to reduce the sentences imposed upon them. Petitioners claim that the Government should be compelled to file such a motion.
By Order dated June 22, 1995, the Court denied Maria and Elizabeth Ramos' Motion to Compel the Government to File Rule 35 Motions to Reduce Sentence without prejudice to their right to supplement their Motions under § 2255 by adding that issue. By letter dated December 13, 1996 counsel for Maria Ramos indicated that he expected to raise at the hearing his client's "intention to seek an order compelling the government to file a motion pursuant to Fed.R.Crim.P. 35." During scheduling conferences held on December 17, 1996 and March 12, 1997, counsel for Elizabeth Ramos explained that he also expected to raise that issue on behalf of his client at the March 14, 1997 hearing.
Rule 35(b) provides, in relevant part, as follows:
The court, on motion of the Government made within one year after imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent substantial assistance in the investigation or prosecution of another person who has committed an offense. . . . The court may consider a government motion to reduce a sentence made one year or more after imposition of the sentence where the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence.
Fed.R.Crim.P. 35(b). The decision to file a Rule 35(b) motion is within the Government's sole discretion, except that the Government can be compelled to file a Rule 35(b) motion if it refuses to file such a motion in bad faith. See United States v. Candela, 1992 U.S. Dist. LEXIS 1663, No. 88-919, 1992 WL 34148, *3 n.3 (S.D.N.Y. Feb. 18, 1992)); see also Medina v. United States, 1995 U.S. Dist. LEXIS 931, No. 89-211, 1995 WL 33098 (E.D. Pa. Jan. 25, 1995). Thus, absent such a finding of bad faith, petitioners' contention that the Government should be compelled to file a Rule 35(b) motion will be rejected.
At the hearing on March 14, 1997, the Government stated that although the sentences imposed upon the petitioners were harsh, it would not file a Rule 35(b) motion. The Government explained that, on the present state of the record, it chose not to file a Rule 35(b) motion because petitioners refused to cooperate pre-trial, unlike every other defendant charged in the drug conspiracy, and failed to provide substantial assistance to the Government--either within one year after imposition of their sentences, or thereafter, including at a December 1996 proffer session. Based on those facts the Government maintained that it was not acting in bad faith. March 14, 1997, Tr. at 32. Moreover, at the hearing counsel for petitioners conceded that the Court lacked authority to compel the Government to file such a motion. Id. at 17-18, 22; see also id. at 32, 49.
The Court agrees that the Government did not act in bad faith; in fact, the Court believes that the Government gave petitioners every opportunity to cooperate. Thus, because the Government did not act in bad faith, the Court cannot compel the Government to file a Rule 35 motion. Petitioners' claim will therefore be denied.
In sum, the Court will deny the Petitions of Maria and Elizabeth Ramos. The Court concludes that because the challenged testimony concerning violent acts was not barred by Rules 404(b) or 403, counsel for petitioners were not ineffective for failing to file a motion in limine to preclude the Government from introducing such testimony or for failing to move to object to the admission of that testimony. And, because, in light of both the overwhelming evidence against petitioners and the Government's explanation that such testimony was not to be considered for improper purposes, the Court concludes that a limiting instruction would not have raised a reasonable probability that the result would have been different and that petitioners' counsel therefore were not ineffective for failing to request such an instruction. With respect to the second issue raised by petitioners, the Court rules that the Government cannot be compelled to file a Rule 35 motion.
AND NOW, to wit, this 16th day of July, 1997, upon consideration of the Motion of Petitioner, Maria Ramos, Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (Document No. 142, filed May 17, 1995), the Motion of Petitioner, Elizabeth Ramos, Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (Document No. 47, filed May 17, 1995), the Supplemental Petition of Maria Ramos (Document No. 149, filed Nov. 6, 1995), the Supplemental Petition of Elizabeth Ramos (Document No. 49, filed Oct. 6, 1995), the Response of the Government in Opposition to the Motion of Petitioner Maria Ramos (Document No. 150, filed Nov. 13, 1995), and the Response of the Government in opposition to the Motion of Petitioner Elizabeth Ramos (Document No. 50, filed Oct. 25, 1995), for the reasons set forth in the attached Memorandum, IT IS ORDERED that the Motion of Petitioner, Maria Ramos, Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence and the Motion of Petitioner, Elizabeth Ramos, Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence are DENIED.
BY THE COURT:
JAN E. DUBOIS, J.