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United States of America v. Ricardo Ramos

August 9, 2012

UNITED STATES OF AMERICA,
v.
RICARDO RAMOS,



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

On March 5, 2009, defendant Ricardo Ramos was convicted after a three-day trial of possession of cocaine base ("crack") and heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count I), possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count II), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count IV). The Court sentenced defendant to 300 months' imprisonment, six years' supervised release, a $1,000 fine, and a $300 special assessment on October 19, 2009. Defendant appealed his conviction to the Third Circuit, which affirmed on October 13, 2010. United States v. Ramos, 397 F. App'x 767 (3d Cir. 2010).

Defendant filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on January 11, 2012 ("§ 2255 Motion"), and a Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence, on February 27, 2012 ("Defendant's Memorandum of Law"). The government filed a response on May 7, 2012.*fn1

For the reasons that follow, the Court denies defendant's § 2255 Motion.

II. BACKGROUND

A. Events of March 31, 2009

At trial, the government presented evidence showing the following: On March 31, 2008, Philadelphia Police Department Officers William Landis and Timothy Linahan set up surveillance near the corner of Rorer and Cambria Streets in Philadelphia, an area known to law enforcement for heroin trafficking. The officers saw a black Chevrolet Suburban (the "Suburban") circle the block a number of times and then park directly in front of the officers' unmarked car. The officers then observed an individual walk up to the passenger side, pass something through the window, and receive an item back. The officers recognized the individual as Ulysses Hood, whom they had arrested previously for dealing heroin. The officers thereafter witnessed a second individual do the same thing. The Suburban had tinted windows, and the officers could not see how many people were inside.

The Suburban thereafter drove away. The officers then sent out a radio call for backup and provided the Suburban's vehicle information. Within a few minutes, Officers Kevin Kachigian and Alex Cricelli spotted the Suburban three blocks from where Officers Landis and Linahan had observed it. Officers Kachigian and Cricelli pulled the Suburban over. Defendant was in the passenger seat, and his co-defendant Frankie Burk was driving. Upon approaching the Suburban, Officer Cricelli observed packets of heroin scattered on the carpet behind the driver's seat. The officers removed defendant and Burk from the Suburban and conducted a sweep of the car to ensure that there was no one else inside. During the sweep, Officer Cricelli opened the rear passenger door and saw the butt of a handgun sticking out from under a bag on the rear seat. The officers then frisked defendant and Burk. They recovered $910 from Burk and $442 from Ramos, more than $260 of which was in ten-dollar denominations.

Officers later obtained a search warrant for the Suburban and recovered the packets of heroin, cocaine, the aforementioned gun, a box of wedding invitations, and more cash- including two ten-dollar bills in the center console. At trial, the government's expert, Brent Wood, testified that the packets of heroin that police found in the Suburban typically sold for ten dollars each on the street.

B. Testimony of Fingerprint Expert Makuch

At trial, the government called Philadelphia Police Officer Adrian Makuch to testify regarding fingerprints on the gun that police recovered from the Suburban. Defendant did not object to the expert testimony of Officer Makuch on fingerprint analysis. Officer Makuch testified that he did not recover any latent fingerprints from the gun. He also testified that he swabbed the gun for DNA and sent the swab to the laboratory for processing.

C. Burk's Hearsay Statement

Upon arrest, Burk stated that Ramos was not involved in any criminal activity and that the drugs and the guns belonged to Burk. Burk further stated that the money that police found on defendant was for an engagement ring that defendant planned to buy. Before trial, the government filed a motion in limine to exclude these statements as hearsay. The Court granted the government's motion without prejudice to defendant's right to lay a foundation for the statements to be admitted under a res gestae exception to the hearsay rule. Defendant's counsel unsuccessfully attempted to do so while cross-examining Officers Cricelli and Kachigian. (Trial Tr. vol. 2, 171, 191, Mar. 4, 2009.)

D. Defendant's Rule 29 Motion

Upon the government's finishing its case-in-chief, defendant made a motion under Federal Rule of Criminal Procedure 29 for a judgment of acquittal as to Counts I and II of the Indictment.*fn2 Defendant argued that the government had failed to submit any evidence that he was more than a passive bystander. The Court denied defendant's motion.

E. Appeal

Defendant filed a Notice of Appeal on October 27, 2009. On appeal, defendant argued:

(1) that he exercised no dominion over the contraband and thus, that the government failed to prove possession of the drugs or gun beyond a reasonable doubt; and (2) that the Court erred in refusing to admit Burk's hearsay statement and that doing so violated defendant's due process rights under Chambers v. Mississippi, 410 U.S. 284 (1973).

The Third Circuit affirmed the conviction, rejecting both of defendant's arguments in an unpublished opinion. United States v. ...


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