United States v. Ramirez , 133 F. App'x 196 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0388n.06
Filed: May 12, 2005
Nos. 02-5828; 02-5872
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
NOE O. RAMIREZ, and VICTOR ) THE EASTERN DISTRICT OF
MEDELLIN, ) TENNESSEE
)
Defendants-Appellants. )
)
)
BEFORE: KEITH, and CLAY, Circuit Judges; O’MEARA*
DAMON J. KEITH, Circuit Judge. Each of the Defendants, Noe O. Ramirez and Victor
Medellin, appeals his conviction or sentence arising out of a multiple-count indictment in relation
to a federal and state investigation of the organized distribution of cocaine and marijuana in the
Eastern District of Tennessee. More specifically, Ramirez contends that the district court committed
reversible error during the trial when it erroneously admitted testimonial hearsay by a government
witness. In a separate appeal, Medellin initially argued that, in sentencing him for conspiracy, the
district court failed to make specific findings of fact as to the amount of drugs directly attributable
*
The Honorable John Corbett O’Meara, United States District Judge for the Eastern
District of Michigan, sitting by designation.
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to him. As a result of Blakely v. Washington, 124 S. Ct. 2531 (2004), Medellin has supplemented
his argument on this issue and now asserts that he had a right to have the jury, not the district court,
make specific findings of fact as to the amount of drugs involved in the conspiracy that are directly
attributable to him. For the reasons that have been set forth below, we AFFIRM both Ramirez’s
conviction and sentence and Medellin’s sentence.
I. BACKGROUND
The convictions in this case arose out of a joint investigation by the Tennessee Bureau of
Investigation (“TBI”) and the Federal Bureau of Investigation concerning the distribution of cocaine
and marijuana by a large organization operating in three counties within the Eastern District of
Tennessee. The primary supplier of illegal narcotics to the organization was Manrique Reynoso.
Reynoso distributed cocaine and marijuana to Jaime Benitez, among others. Benitez, in turn,
supplied these drugs to the Defendants, Ramirez and Medellin, as well as other distributors. In the
course of the investigation, agents participated in at least fifty drug transactions and either seized
or intercepted at least twelve kilograms of cocaine, 2500 pounds of marijuana, and over $330,000.00
in cash. When drug shipments arrived, they were divided and stored in “stash houses.” Other
houses, including Medellin’s home, functioned as distribution points. Law enforcement agents
surveilled the movement of drugs from these different locations. In addition, undercover agents and
confidential informants followed and consummated drug deals with suspected suppliers and
distributors. According to TBI Agent Jim Williams, during one of these transactions, Benitez told
Williams that Benitez and his distributors (which included Ramirez and Medellin) sold one kilogram
of cocaine every three days.
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On June 15, 2001, agents executed nineteen search warrants and arrested thirty-seven
defendants who were charged in three indictments. On September 25, 2001, a grand jury issued a
forty-four count superseding indictment against Ramirez, Medellin, and seven other co-defendants.
Ramirez, Medellin and two co-defendants were subsequently tried before a jury beginning on
February 28, 2002. Approximately one week later, on March 6, 2002, all four individuals were
convicted.
A. Noe O. Ramirez’s Case
Ramirez’s involvement in this drug conspiracy includes, among other things, events that
occurred on May 14, 2001, resulting in his arrest. On the basis of wiretapped conversations,
investigating agents believed that Benitez and Ramirez were planning to transfer drugs from one
location to another on that day. The agents set up surveillance at locations that had been designated
as “stash houses,” and observed a green car at one of these locations. A short while later, agents
observed the same vehicle at a different stash house. When the vehicle departed the second stash
house, surveillance agents requested the assistance of Deputy Chad Mullins of the Hamblen County
Sheriff’s Office in intercepting the car. Initiating his emergency lights, Deputy Mullins attempted
to effect a traffic stop of the vehicle, but the driver refused to stop. A high-speed chase ensued,
during which Deputy Mullins observed a package being thrown out of a window on the passenger’s
side of the vehicle. After the package was discarded, the vehicle traveled about one additional mile
before the car stopped and its occupants scattered. All of the individuals were apprehended,
including Ramirez, who was driving the vehicle at the time of the chase. Deputy Mullins also
located the package that had been thrown from the vehicle, which was discovered to have contained
three ounces of cocaine.
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During the trial, several persons testified against Ramirez. Reynoso, the main supplier,
described Ramirez as one of Benitez’s assistants, who regularly accompanied Benitez when they
came to pick up cocaine and marijuana. Reynoso was able to remember one specific occasion, in
January or February 2000, when Benitez and Ramirez picked up one or two kilograms of cocaine
and twenty pounds of marijuana. Reynoso also testified that Ramirez delivered money for Benitez.
Reynoso believed that Ramirez was acting on behalf of Benitez.
Alejandro Hernandez, another indicted co-conspirator, testified that he sold one to two
ounces of cocaine a day, which he ordered from Benitez. According to Hernandez, Ramirez often
delivered the cocaine after he had ordered it from Benitez, and, in the event that he was unable to
reach Benitez directly, Hernandez would call Ramirez directly for his cocaine supply. Hernandez
testified that Ramirez delivered cocaine to him on thirty to forty occasions, and that he, Hernandez,
had been to one of the stash houses to pick up his cocaine. In addition, Armando Dominguez, an
indicted co-conspirator, testified that he sold six to nine ounces of cocaine each week, that he
delivered cocaine to Benitez, and that he knew that Ramirez was selling cocaine for Benitez.
Over Ramirez’s objection, Agent Kevin Keithley testified at trial that surveillance agents
observed a green car at both of Benitez’s stash houses on the morning of May 14, 2001. Agent
Keithley, however, conceded that he did not witness the car himself.
On the basis of the above information, among other evidence, the jury convicted Ramirez
on Counts 2 and 5 (distribution and possession with intent to distribute marijuana in violation of 21
U.S.C. § 841(a)(1)) and Count 38 (possession with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2) of the superceding indictment.
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Following his conviction, Ramirez filed a motion for a judgment of acquittal and for a new trial.
The district court denied both of these motions.
B. Victor Medellin’s Case
For his part in the conspiracy, Medellin sold cocaine to Jim Williams, the undercover TBI
agent, in three observed and recorded transactions. On July 18, 2000, during the first transaction,
Agent Williams had planned to meet Alejandro Cortez, one of Medellin’s co-defendants, at
Medellin’s house in order to purchase an ounce of cocaine. According to Williams, Cortez was not
there when he arrived, so Medellin telephoned Cortez to inform him that Williams wanted an ounce
of cocaine. Immediately following his conversation with Cortez, Medellin instructed Williams to
go to Cedar Hill Road in Hamblen County, where he could purchase an ounce of cocaine from
Cortez.
During the second transaction, on August 8, 2000, Williams again went to Medellin’s home,
where he expected to meet Cortez and to purchase two ounces of cocaine. After a short wait, Cortez
and Medellin arrived together. Medellin instructed Cortez to take Williams to the back of the house
to do the deal.
The third transaction occurred on August 14, 2000, when Williams called Cortez’s cellular
telephone and Benetiz answered. Williams placed an order for two ounces and was instructed to
proceed to Medellin’s home. When Williams arrived, Medellin was outside working on his truck.
After waiting a while, Medellin went inside to call Benitez. After he was unable to reach Benitez,
Medellin asked Williams how much cocaine he needed. In light of the fact that Williams had been
waiting for quite some time, Medellin offered to sell him two ounces of cocaine on Benitez’s behalf.
Medellin stressed to Williams that he was still Cortez’s customer. As Williams was leaving
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Medellin’s residence following this initial transaction, surveillance agents at Benitez’s residence
contacted Williams and notified him that Benitez was en route to Medellin’s home. Williams then
instructed a confidential informant accompanying him to telephone Benitez and tell him that they
had not been able to wait and had gone ahead and purchased two ounces from Medellin, but that
they needed another ounce. Benitez directed them to meet him at an Exxon station in Morristown,
Tennessee, where Benitez later sold Williams another ounce. During this later recorded transaction,
Benitez informed Williams that the cocaine he had purchased from Medellin and Cortez had come
from him and that they both worked for him.
Cortez testified that he obtained, from Benitez, ounce packages of cocaine that he sold on
a weekly basis. Cortez and Medellin were friends, and he believed that Medellin also obtained his
cocaine from Benitez. Dominguez, who also testified against Ramirez, said that he knew that
Medellin was one of several people who helped Benitez sell cocaine. Hernandez, another person
who testified against both Ramirez and Medellin, admitted that he purchased cocaine from Medellin
on two occasions. On both occasions, Hernandez purchased from Medellin because Benitez was
out of cocaine.
Reynoso identified Medellin as one of those individuals who sometimes accompanied
Benitez when he came to pick up cocaine. Medellin also came several times on his own to get
cocaine and marijuana, receiving one ounce of cocaine, and usually between five and nine ounces
of marijuana. Reynoso did not know Medellin’s customers and never witnessed him sell drugs.
The jury convicted Medellin on Count 5 (distribution and possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1)), Count 14 (use of a telephone to facilitate the
distribution of a controlled substance in violation of 21 U.S.C. § 843(b)), Counts 15 and 20
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(distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) & § 841(b)(1)(C)), and Count 19
(aiding and abetting the distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)
and 18 U.S.C. §2). After he was found guilty, Medellin filed a motion for a judgment of acquittal
and for a new trial. The district court denied both of these motions.
C. Sentencing
Following the issuance of his respective Presentence Investigation Report (“PSR”), Ramirez
and Medellin each filed separate objections to the PSR.1 Medellin objected to his PSR, questioning
the quantity of cocaine attributed to his involvement in the conspiracy. The Probation Officer
responded that the quantity of cocaine reflected in the PSR was based upon the jury’s verdict
convicting Medellin of conspiracy to distribute over five kilograms of cocaine. At the sentencing
hearing, the district court gave Medellin an opportunity to reassert his objection regarding the
amount of cocaine properly attributable to him. After the government argued against the objection,
however, counsel for Medellin conceded that “there [was] no need for an evidentiary hearing. . .
. [W]e ask the court to sentence him at the low end of the range of 121 months.” Joint Appendix
(“J.A.”) at 165-66.
On June 10, 2002, the district court sentenced Medellin to 121 months on Counts 5, 15, 19,
and 20, and 48 months on Count 14, to be served concurrently. On June 17, 2002, the district court
sentenced Ramirez to 121 months on Counts 2, 5, and 38, to be served concurrently. The
Defendants timely filed separate appeals.
II. DISCUSSION
1
Ramirez’s objections are not at issue in this appeal.
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In appealing his conviction and sentence, Ramirez asserts the district court erred by failing
to exclude testimonial hearsay by Agent Keithley. Medellin, however, contests only his sentence
for conspiracy, which he contends violated his constitutional rights because it was not based upon
specific factual findings that the entire amount of drugs alleged in the conspiracy was properly
attributable to him. We address each of these arguments in turn.
A. Ramirez’s Appeal
Ramirez asserts that: (1) the testimony of Agent Keithley was hearsay; (2) the testimony was
admitted over the objection of the defendant; (3) the United States did not urge at the time of the
objection that such evidence was only for background; (4) the district court gave no limiting
instruction; and (5) under such circumstances, the admission of this testimony violated Federal Rule
of Evidence 802 and the Sixth Amendment to the United States Constitution. The government
argues, in response, that Agent Keithley’s representations at trial do not constitute hearsay in that
he submitted the contested information merely as background information to set the scene of the
incident that led to Ramirez’s arrest. In addition, the government contends that the admission of the
contested statements amounts to, at best, harmless error in light of the other evidence submitted
against Ramirez.
We review the district court’s evidentiary decisions for an abuse of discretion and “only
reverse when such abuse of discretion has caused more than harmless error.” McCombs v. Meijer,
Inc., 395 F.3d 346, 358 (6th Cir. 2005). “A district court abuses its discretion when it relies on
clearly erroneous findings of fact, when it improperly applies the law, or when it employs an
erroneous legal standard.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004).
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Ramirez correctly asserts that testimonial hearsay that places him at the scene of known drug
stash houses is barred by the Sixth Amendment absent a showing that the declarant was unavailable
and that Ramirez had a prior opportunity to cross-examine. The Confrontation Clause of the Sixth
Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. In addressing the
Confrontation Clause, the Supreme Court recently held that where testimonial hearsay is at issue,
“the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004).
In this case, Ramirez objected to Agent Keithley’s trial testimony during the following
exchange:
Government: And you were part of that [May 14, 2001,] surveillance?
Keithley: Yes, I was.
Government: And did you see anyone in particular that day?
Keithley: I myself did not, but other surveilling agents did.
Government: And did that surveillance result in the traffic stop of Garcia, Rubio
Cruz and Mr. Ramirez?
Keithley: Yes, it did.
Government: And were they surveilled at Roddy Drive that day?
Ramirez: Objection. Your Honor, this officer has testified that he didn’t see
them there.
The Court: Well, you have to pick it up on - - what’s the question that you’re
objecting to?
Government: My question, your Honor, was were they surveilled at the Roddy
Drive address.
Ramirez: In other words, did somebody see them there. He said he didn’t.
The Court: Well, let him answer what the question is, and we’ll find out. I don’t
know what’s coming, it’s a proper question. What’s the answer?
Keithley: Surveilling agents identified a green four-door vehicle at Sartain
Springs Road on May 14, at 2001 in the morning. That same vehicle
was later identified at Roddy Drive later on that morning. At
approximately 11:00 a.m. surveilling agents identified that same
green vehicle leaving the Roddy Drive residence, and then the traffic
stop ensued after a fairly lengthy pursuit.
Ramirez: Your Honor, again I would object and move to strike that testimony.
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The Court: Okay. Let the record show that he has made it.
Upon our examination of the above exchange, we agree with Ramirez that Agent Keithley’s
testimony was hearsay.2 Agent Keithley conceded that at the time of the surveillance, he did not see
Ramirez at the stash houses. Rather, he asserted, other surveilling agents were present and they
identified Ramirez at those locations. Therefore, Agent Keithley is relating an out of court statement
from other surveilling agents. Furthermore, the out of court statement was offered to prove the truth
of the matter asserted, that the vehicle that Ramirez was driving was identified at two different stash
houses on the morning of the day he was apprehended.
Moreover, applying the standard announced by this court in United States v. Cromer, 389
F.3d 662 (6th Cir. 2004), we also conclude that Agent Keithley’s statements were testimonial in
nature. While in Crawford the Supreme Court declined to “spell out a comprehensive definition of
‘testimonial,’” 124 S. Ct. at 1374, this court determined in Cromer that the proper inquiry is “whether
a reasonable person in the declarant’s position would anticipate his statement being used against the
accused in investigating and prosecuting the crime,” 389 F.3d at 675. Applying the Cromer
standard, we have no doubt that the surveillance agent(s) who informed Keithley that Ramirez’s
vehicle had been identified at the stash houses did so with the anticipation that the statements would
be used against Ramirez in the investigation. Thus, we conclude that the out of court statement
made by the surveillance agents constituted testimonial hearsay that was admitted into evidence
through Agent Keithley.
2
We recognize that in objecting to Agent Keithley’s testimony Ramirez did not
specifically use the term “hearsay,” but in light of the full context of the exchange during trial,
we conclude that it was plainly evident that the basis of his objection was for hearsay purposes.
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Although we find the district court’s introduction of Keithley’s testimonial hearsay violated
Crawford because there was no showing that the declarant(s) was unavailable and Ramirez did not
have a prior opportunity to cross-examine the declarant(s), we nonetheless agree with the
government that the admission of this testimony was harmless. “We will vacate a jury’s verdict
based on a district court’s erroneous admission of hearsay evidence only if the testimony’s
admission amounted to more than harmless error.” Field v. Trigg County Hosp., Inc., 386 F.3d 729,
736 (6th Cir. 2004); see United States v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004) (concluding that
“the district court’s admission of the hearsay statements constituted harmless error”). In applying
the harmless error standard, we will reverse if we “lack[] a ‘fair assurance’ that the outcome of a trial
was not affected by evidentiary error.” Beck v. Haik, 377 F.3d 624, 635 (6th Cir. 2004).
In the present case, Ramirez was convicted of two counts of conspiracy to possess with intent
to distribute a controlled substance and one count of possession with intent to distribute a controlled
substance on May 14, 2001. Deputy Mullins testified that when he attempted to effect the traffic
stop, the vehicle pulled off to the right shoulder, slowed down but never stopped and then took off
again traveling approximately eight to ten miles before pulling over into a yard. After the occupants
exited the vehicle, a back-up officer caught and restrained the passenger, while Deputy Mullins
cuffed the driver, who he identified as Ramirez. Deputy Mullins further testified that he observed
the occupants of the vehicle discard a package out of the passenger-side window during his pursuit.
Once he secured Ramirez, he returned to the location where the package had been discarded and
retrieved it. The package contained three ounces of cocaine.
In addition to the testimony of Deputy Mullins, several of Ramirez’s co-conspirators testified
against him. Reynoso described him as one of Benitez’s assistants, testified that he delivered money
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for Benitez, and specifically recounted that he accompanied Benitez to pick up one or two kilograms
of cocaine and twenty pounds of marijuana in January or February 2000. Hernandez testified that
Ramirez often delivered cocaine to him, and had done so on thirty to forty occasions.
In light of the other overwhelming evidence against Ramirez, we conclude that the
erroneously admitted hearsay evidence did not affect the outcome of his case. The contested
testimonial hearsay of Agent Keithley merely places Ramirez at two stash houses on the day of his
arrest. The significance of this testimony pales in comparison to the other substantial evidence
introduced against Ramirez at trial. Accordingly, we find the district court’s admission constituted
a mere harmless error and we affirm Ramirez’s conviction and sentence.
B. Medellin’s Appeal
In his appeal, Medellin argues that he should be sentenced only for the quantity of cocaine
that he personally sold to undercover agents. He initially contended that the district court failed to
conduct a foreseeability analysis in determining the drug amounts for which he should be held
responsible for purposes of sentencing. In light of the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), Medellin now submits that such a foreseeability analysis would
have to be conducted by a jury under a beyond-a-reasonable-doubt standard. In the aftermath of
United States v. Booker, 125 S. Ct. 738 (2005), we agree with Medellin’s general argument that a
defendant’s sentence must be based upon facts either found by a jury or to which he concedes. We,
however, need not dwell long upon Medellin’s complaint in this case because our review of the
record reveals that he was charged in the indictment, found guilty by the jury, and sentenced by the
district court for having conspired to distribute five kilograms or more of cocaine.
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In his brief, Medellin argues that “while the conspiracy in this case might have involved five
or more kilograms of cocaine, the trial evidence and the Presentence Report filed in this case only
connected [him] to 429.8 grams of cocaine.” Appellant Medellin’s Br. at 13. Medellin further
asserted in his brief that the sentencing guidelines required the district court to make “particularized
findings” that he could foresee the other drug amounts involved in the conspiracy. Id. at 14. In a
letter of July 19, 2004, Medellin supplemented his earlier argument and now contends that pursuant
to Blakely the foreseeability analysis formerly conducted by the district court would now “have to
have been conducted by a jury operating under a reasonable doubt standard.”
We need not explore the legal underpinnings of Medellin’s argument. For even if we agree
with his claim, the application of those principles to this case does not advance his cause on appeal.
First, the indictment charged Medellin with having conspired to “distribute 5 kilograms or more of
. . . cocaine.” J.A. at 72. Second, the district court properly instructed the jury that it was required
to find that the amount of cocaine alleged in the indictment was attributable to each of the
defendants, including Medellin. Specifically, the district court instructed the jury that counts five,
six, and seven of the indictment were alternative counts, and “[c]ount [f]ive alleges a conspiracy
involving five kilograms of cocaine.” Id. at 600. The district court also charged the jury that the
government must prove that the defendants (1) knowingly and voluntarily, (2) conspired to distribute
cocaine. Importantly in this appeal, the court directed that the jury “must apply this test to each of
the defendants separately.” Id. at 602 (emphasis added). Lastly, the district court set the following
parameters with regard to the conspiracy charges: “all members of a conspiracy are responsible for
the acts committed by other members, as long as they are within the reasonable foreseeable scope
of the agreement,” and “no defendant is responsible for the acts of others that go beyond the fair
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scope of the agreement as he understood it.” Id. at 605. Subsequently, the jury convicted Medellin
on count five of the indictment, and the district court sentenced him to a term of imprisonment of
121 months.
There is no dispute that the district court sentenced Medellin within the applicable guideline
range for possession with the intent to distribute at least five kilograms, but less than 15 kilograms
of cocaine. Inasmuch as the indictment charged Medellin with having conspired to distribute five
kilograms or more of cocaine, the district court instructed the jury that he was responsible only for
those acts of the conspiracy that were reasonably foreseeable to him, the jury convicted Medellin
of participating in the conspiracy, and the district court sentenced him within the applicable
guideline range, this court finds that Medellin’s asserted error is without merit.
Finally, we note that Medellin has not argued pursuant to United States v. Booker, 125 S. Ct.
738 (2005), that he is entitled to resentencing by virtue of the fact that the sentencing guidelines are
no longer mandatory. In United States v. Murdock, 398 F.3d 491, 502 (6th Cir. 2005), this court
declined to consider such an argument where the defendant has failed to raise it.
III. CONCLUSION
For the reasons stated above, we AFFIRM Ramirez’s conviction and sentence and Medellin’s
sentence.
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