United States v. Ramseur ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4907
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS DORAN RAMSEUR, a/k/a 50,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-21)
Argued: March 26, 2010 Decided: May 13, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Motz and Judge King joined.
ARGUED: Nathan J. Taylor, ANDERSON TERPENING, PLLC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: William R. Terpening, ANDERSON TERPENING, PLLC,
Charlotte, North Carolina, for Appellant. Edward R. Ryan,
Acting United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Appellant Travis Ramseur (“Ramseur”) appeals his conviction
and sentencing for conspiracy to possess with intent to
distribute cocaine, cocaine base, and marijuana in violation of
18 U.S.C. § 846. He challenges the district court’s decision
not to declare a mistrial after a witness mentioned a murder
charge during examination, as well as its decision to apply a
sentencing enhancement under U.S.S.G. § 2D1.1(d). Constrained
by the applicable standards of review, we affirm.
I.
During the course of Ramseur’s four-day trial and four-day
sentencing hearing, the government presented evidence composed
largely of witness testimony. We provide a general recitation
of the relevant facts, but focus on particular testimony as
needed. We set forth the facts in the light most favorable to
the government, the prevailing party below. United States v.
Mehta, 594 F.3d 277, 279 (4th Cir. 2010).
A.
Between 1999 and 2004, Rickie Eckles (“Eckles”) ran a drug
distribution operation in and around Statesville, North
Carolina, in Iredell County. The operation involved dozens of
individuals and large quantities of cocaine, crack, and
2
marijuana. Sometime in the early 2000s, Eckles formed an
association with Ramseur, through which Ramseur bought bulk
quantities of drugs and resold them on the street.
After Eckles and thirty-five other coconspirators were
indicted, in their quest for sentence reductions based on
substantial assistance, he and seven others testified about
Ramseur’s various roles and extensive involvement in the
venture. 1 Also, Detective David Ramsey of the Iredell County
Sheriff’s Office testified about his in-depth investigation of
Ramseur. Detective Ramsey conducted surveillance of Ramseur
while he bought drugs from Eckles, listened to numerous
wiretapped phone conversations in which Ramseur talked about his
drug trafficking, and personally interviewed every cooperating
witness prior to their testifying at Ramseur’s trial. This
cumulative testimony painted a detailed picture of Ramseur’s
involvement: it made out the amounts of cocaine, crack, and
marijuana Ramseur purchased; the individuals in the conspiracy
whom he worked with to sell drugs; and the time period,
beginning as early as 1996, during which he trafficked in the
Statesville area.
1
The government produced one additional witness at trial
who was not indicted as part of the Eckles conspiracy, but who
had personal knowledge of Ramseur’s activity.
3
During the course of Eckles’s examination, he was asked
when he began selling drugs to Ramseur. Eckles first said he
began dealing with Ramseur in 2000 or 2001, but later said it
was in 2003. He maintained, however, that he stopped selling to
Ramseur in November 2004. When defense counsel asked if he was
sure about when he stopped selling to Ramseur, Eckles said,
“[m]y last time I dealt with him was the time -- if that was the
time when the murder charge -- that’s the last time.” J.A. 187.
Defense counsel moved to strike this comment, and the district
court granted the motion. The district court also instructed
the jury, “[m]embers of the jury, don’t consider the last
remark. Strike it.” Id.
The jury convicted Ramseur of the sole count under 18
U.S.C. § 846. In special verdicts, it attributed to Ramseur the
maximum amount of crack and cocaine charged by the government,
“50 grams or more of a mixture and substance containing a
detectable amount of cocaine base” and “5 kilograms or more of a
mixture and substance containing a detectable amount of powder
cocaine.” J.A. 948. However, the jury attributed only the
minimum amount of marijuana that they had been asked to find,
“less than 50 kilograms.” J.A. 949.
4
B.
Prior to Ramseur’s sentencing hearing, the United States
Probation Office (“Probation”) prepared a presentence report,
calculating Ramseur’s recommended guidelines sentence under
U.S.S.G. § 2D1.1. Based on his involvement in the conspiracy,
Ramseur’s offense level was 36. Probation determined, however,
that Ramseur was also directly responsible for three murders and
so, under § 2D1.1(d), cross-referenced § 2A1.1 and assigned
Ramseur an offense level of 43. 2
Ramseur filed an objection to the application of
§ 2D1.1(d). In response, the government sought to establish
that Ramseur was responsible for three murders, “during the
course of the conspiracy . . . [and] in furtherance of a drug
conspiracy.” J.A. 963. In so doing, the government again
relied predominately on the testimony of cooperating witnesses.
The first murder occurred on May 25, 2001, on Wilson Lee
Boulevard (the “Wilson Lee Boulevard” murder). This murder grew
out of a theft of drug proceeds by a dealer named Nakia White.
Demetrius Thompson, another dealer who did not receive a portion
2
Section 2D1.1(d) provides, “[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C.
§ 1111 . . . [one must] apply § 2A1.1 (First Degree Murder) or
§ 2A1.2 (Second Degree Murder), as appropriate.” The base
offense level for § 2A1.1 is 43.
5
of the stolen proceeds to which he felt entitled, prevailed upon
Ramseur, who was known for possessing a number of firearms and
for using violence against rival dealers, to assist in
retaliating for the slight. The two knew that White sold crack
with Roxanne Eckles out of her apartment, and so went to
Roxanne’s apartment, along with Eckles-coconspirator O’Kiera
Myers, and shot into it, killing John Lewis Davis in the
process. A week later, Ramseur returned and fired into the
apartment again, but did not manage to harm anyone.
The other murders occurred in November 2004, on Brevard
Street (the “Brevard Street” murders). At the time, victims
Angelo Stockton and Timothy Cook, rival dealers in Statesville,
had been engaged in a longstanding feud with Ramseur and his
associates. Because of the feud, gunfire had been exchanged on
several occasions. Ramseur’s associates had shot at Stockton,
Cook, and their associates, and Ramseur had participated in
shooting up a house, seeking to kill them. On November 16,
2004, Stockton and Cook encountered several of Ramseur’s
associates at a drinking establishment, and a fight ensued. In
the course of the fight, three of Ramseur’s associates, two of
whom were named in the Eckles conspiracy, summoned Ramseur
because they knew he possessed numerous firearms. Ramseur
collected Al Bellamy, an associate and member of the conspiracy,
and drove to the drinking establishment, where they encountered
6
Cook and Stockton outside. Ramseur and Bellamy shot and killed
both.
At the sentencing hearing, the three associates who
summoned Ramseur to Brevard Street testified about the event.
Though each had personal knowledge of these murders, two said
that they did not know the reason for the underlying feud, and
the third said it was “[j]ust some beef about like neighborhoods
or something.” J.A. 1277. Other cooperators who testified
about their knowledge of the murders similarly disclaimed any
knowledge of the source of the feud. The government was able to
provide an explanation, however, by calling to the stand Tyrone
Brandon, who had been convicted of unrelated charges of drug
distribution in the Statesville area. Brandon had been
incarcerated with Al Bellamy in county prison after the murders
occurred, and testified to what Bellamy told him about them:
Q: [D]id [Bellamy] tell you what the argument was
over?
A: He told me it was over drugs.
Q: Did he also tell you that other people thought it
was over a girl, but it was really over drugs?
A: Yes ma’am.
Q: Did he describe in what way it was over drugs or
he just told you it was over drugs?
A: He said that [Stockton] refused to pay [Cary
Phifer] for the drugs that [Cary] had fronted him
to sell.
7
J.A. 1413-14.
At the conclusion of the hearing, the district court
overruled Ramseur’s objection to the application of § 2D1.1(d),
finding that Ramseur was “directly accountable” for the Wilson
Lee Boulevard and Brevard Street murders. J.A. 1783-84. The
district court adopted Probation’s recommendation, and sentenced
Ramseur to life imprisonment. He now appeals.
II.
On appeal, Ramseur challenges his conviction and his
sentencing. Ramseur contends that the district court should
have declared a mistrial after Rickie Eckles referenced a murder
charge while testifying about Ramseur’s involvement in the drug
conspiracy. Ramseur further contends that his sentence should
be vacated because the district court erred in finding that the
murders of Davis, Cook, and Stockton were “relevant conduct”
under U.S.S.G. § 1B1.3, and thus grounds for applying the
§ 2D1.1(d) sentencing enhancement. 3 We consider these arguments
in turn.
3
We are aware that the district court is obligated to
consider evidence of relevant conduct under U.S.S.G. § 1B1.3,
United States v. Hayes, 322 F.3d 792, 801 (4th Cir. 2003), and
that in this case, the district court did not make its
determinations explicit. Ramseur, however, does not argue that
(Continued)
8
A.
We first consider Ramseur’s challenge to his conviction.
Ramseur argues that Eckles’s comment was prejudicial to the
point that the district court had to dismiss the jury, because
the comment informed them of highly damaging information about
Ramseur that did not relate to the drug charge for which he was
being tried. Because Ramseur did not move for a mistrial below,
we review the district court’s decision not to declare one sua
sponte for plain error. See United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995).
A criminal defendant suffers sufficient prejudice to
warrant a new trial if “there is a reasonable possibility that
the jury’s verdict was influenced by the material that
improperly came before it.” United States v. Barnes, 747 F.2d
the district court failed to consider § 1B1.3. This is probably
so because the district court responded to the government’s
stated intention of proving that the murders were committed
“during . . . [and] in furtherance of a drug conspiracy,” J.A.
963, by finding that Ramseur was “directly responsible” for the
murders, J.A. 1783-84. This finding clearly indicates that the
district court found the conduct relevant under § 1B1.3.
Accordingly, although it would have been preferable for the
district court to make an express finding of relevance, because
the record clearly demonstrates considerations relevant to
§ 1B1.3, we will not find clear error on these facts based on a
failure to consider that guideline.
9
246, 250 (4th Cir. 1984) (internal quotations and citation
omitted). In the context of witness testimony, sufficient
prejudice does not exist if, despite the testimony, the jury
“could make individual guilt determinations by following the
court’s cautionary instructions.” United States v. West, 877
F.2d 281, 288 (4th Cir. 1989), cert denied, 493 U.S. 959 (1989).
When considering whether the jury could make individualized
determinations by following the court’s instructions, several
factors are relevant: (1) whether the prosecutor sought to bring
out the comment and, if so, whether that was with an improper
purpose; (2) whether the district court’s instruction
sufficiently informed the jury that it could not consider the
testimony; (3) whether the jury’s verdict fairly implies that it
was not influenced by the testimony; and (4) the weight of the
evidence. United States v. Dorsey, 45 F.3d 809, 817-18 (4th
Cir. 1995).
As a threshold matter, we are unconvinced that Eckles’s
comment could be considered prejudicial. Eckles stated, “[m]y
last time I dealt with him was the time -- if that was the time
when the murder charge -- that’s the last time.” J.A. 187.
This comment does not provide any insight into who was charged
with a murder. Upon hearing it, all the jury could infer is
that Eckles sold drugs to Ramseur until the time that a “murder
10
charge” interrupted their association. This inference, standing
alone, is hardly prejudicial to Ramseur.
Furthermore, even if Eckles’s comment had the power to
prejudice Ramseur, under the Dorsey factors, Ramseur has failed
to show that the comment was sufficiently prejudicial to warrant
a mistrial. First, as Eckles was responding to defense counsel,
there is no evidence here that the prosecutor sought to bring
out the comment, which means the prosecutor did not attempt to
mislead the jury. Where the prosecutor cannot be held
accountable for the comment, we customarily find insufficient
prejudice to warrant a mistrial. United States v. Johnson, 610
F.2d 194, 197 (4th Cir. 1979). Second, the district court ably
addressed Eckles’s comment, giving the jury a firm, immediate
instruction that they could not consider it. Third, the jury’s
verdict demonstrates that the jury was not influenced by
Eckles’s comment. The jury could have attributed the maximum
amount of marijuana to Ramseur but did not, thereby evidencing
that it paid attention to the evidence and not the comment.
Fourth, the weight of the evidence “clearly establishe[d] all
the facts necessary for proof of the illegal conspiracy.”
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 235
(1940). Notably, Ramseur did not argue that the evidence was
insufficient to convict him, thereby conceding that the jury had
enough to rely upon in its deliberation.
11
Accordingly, we find that the district court committed no
error when it did not order a mistrial.
B.
We turn now to Ramseur’s challenges to his sentencing. He
argues that the district court erred when enhancing his offense
level under U.S.S.G. § 2D1.1(d) because it based the enhancement
on murders that were not relevant to his crime of conviction
under § 1B1.3. We review the district court’s legal conclusions
de novo and its factual findings for clear error. United States
v. Martinez-Melgar, 591 F.3d 733, 737 (4th Cir. 2010). As
Ramseur’s arguments concern whether the murders applied under
§ 2D1.1(d) are relevant conduct within the meaning of § 1B1.3,
we begin with a brief discussion of these provisions.
If an individual being sentenced under § 2D1.1 has
committed a crime that would constitute murder under 18 U.S.C.
§ 1111 within federal jurisdiction, the district court may
enhance the offense-level calculation under § 2D1.1(d). In
order to do so, the district court must determine that the
murders are relevant within the meaning of § 1B1.3. The
district court first determines the scope of the underlying
relevant conduct based on “all acts and omissions committed,
aided [and] abetted . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction.”
12
See § 1B1.3(a)(1)(A), (2). A murder is then relevant if it
occurs during and in furtherance of the crime of conviction, or
conduct that is part of a same course of conduct or common
scheme or plan as the crime of conviction. See United States v.
Pauley, 289 F.3d 254, 259 (4th Cir. 2002).
When determining if conduct is part of a “common scheme or
plan” or of the “same course of conduct,” we apply “a fairly
straightforward test.” Pauley, 289 F.3d at 259. We consider:
such factors as the nature of the defendant’s acts,
his role, and the number and frequency of repetitions
of those acts, in determining whether they indicate a
behavior pattern. The significant elements to be
evaluated are similarity, regularity and temporal
proximity between the offense of conviction and the
uncharged conduct. Although an appellate court cannot
formulate precise recipes or ratios in which these
components must exist in order to find conduct
relevant, a district court should look for a stronger
presence of at least one of the components if one of
the components is not present at all. If the
uncharged conduct is both solitary and temporally
remote, then there must be a strong showing of
substantial similarity.
Id. (quoting United States v. Mullins, 971 F.2d 1138, 1144 (4th
Cir. 1992). With this framework in mind, we consider Ramseur’s
arguments.
13
We limit our consideration to the Brevard Street murders. 4
Ramseur does not contest that he committed these murders during
his crime of conviction. Rather, he contends only that the
district court relied on insufficient evidence to find them
relevant, because it relied on the statements of Tyrone Brandon,
a witness who testified that the murders occurred because
Stockton refused to pay Ramseur’s associate, Cary Phifer, for
drugs Phifer had fronted Stockton. First, Ramseur argues that
Brandon was not a credible witness because he was “a felon [who
testified] . . . with an expectation of a reduction in
sentence,” Appellant’s Br. at 27, and so could not provide a
reliable explanation as to why Ramseur killed Stockton and Cook.
Second, Ramseur argues that Brandon’s hearsay testimony could
not be used to find the murders relevant because other witnesses
testified from personal knowledge that the murders were not
drug-related.
Ramseur’s first argument is a challenge to the district
court’s credibility determination on Brandon, a kind of
determination we can scarcely reverse. As we have said, “when a
4
Section 2D1.1(d) requires only a single murder to support
the cross-reference. Accordingly, because we find that the
district court did not clearly err in concluding that the
Brevard Street murders were relevant conduct, we need not
consider the Wilson Lee Boulevard murder.
14
district court’s factual finding is based upon assessments of
witness credibility, such finding is deserving of the highest
degree of appellate deference.” United States v. Thompson, 554
F.3d 450, 452 (4th Cir. 2009) (internal quotations omitted).
Ramseur provides no compelling reason why we should not apply
that level of deference here. Not only is it accepted practice
for the government to produce cooperating witnesses at trial --
so much so that § 5K1.1 of the Sentencing Guidelines provides a
means to decide how much credit cooperators should receive --
but Ramseur does not even complain about the credibility of the
other cooperating witnesses, who all were in the same position
as Brandon. Moreover, the district court had the opportunity to
hear Brandon’s testimony, as well as defense counsel’s effort to
impeach him on cross-examination. In such circumstances, the
district court’s credibility determination is not reversible.
Ramseur also fails to show that the district court erred by
finding facts based on Brandon’s hearsay instead of those
witnesses who testified from personal knowledge. At the
sentencing stage, the district court is entitled to hear any
relevant information, so long as it bears “sufficient indicia of
reliability to support its probable accuracy.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 122 (4th Cir. 2007)
(internal quotations and citation omitted). The district court
may find hearsay sufficiently reliable, and rely on it to find
15
facts. See United States v. Carter, 300 F.3d 415, 427 (4th Cir.
2002). The hearsay can come from any source, even convicted
felons seeking a sentence reduction. See United States v.
Johnson, 489 F.3d 794, 797 (7th Cir. 2007) (“[T]he district
court may credit testimony that is totally uncorroborated and
comes from an admitted liar, convicted felon, or large scale
drug-dealing, paid government informant.”) (internal quotations
and citations omitted). Here, the differing rationales offered
by the witnesses required the district court to resolve a
question of fact based on whose testimony ought to be credited,
and it was not error for the district court to rely on Brandon
in resolving that issue. See Carter, 300 F.3d at 425.
In particular, the district court did not err here because,
as Ramseur effectively concedes, it did not have to resolve any
real conflicts in the witness testimony. The witnesses who were
present on Brevard Street had personal knowledge about the
murders, but not the cause of the feud underlying them. Only
one actually suggested a rationale different from Brandon’s,
that the feud was about territory. This explanation, however,
could well be construed as drug-related. The district court
therefore heard alternative testimony that the source of the
feud was unknown, or that it was for a reason that could also be
about drugs. Neither explanation logically precludes the
16
finding that drugs were, at minimum, a principal reason
underlying the murders.
In this case, the record supports a determination that
these murders were committed in furtherance of Ramseur’s crime
of conviction, and so were relevant within the meaning of
§ 1B1.3. The district court therefore did not clearly err by
enhancing Ramseur’s sentence under § 2D1.1(d) on this basis.
III.
For the foregoing reasons, we affirm Ramseur’s conviction
and sentence.
AFFIRMED
17