United States v. Sergio Ramirez ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1387
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Sergio Ramirez, *
*
Defendant-Appellant. *
*
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Submitted: October 22, 2003
Filed: November 24, 2003
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Before BYE, HANSEN, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Sergio Ramirez was charged in a two-count superseding indictment with
conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841 (b)(1)(A) and with distributing methamphetamine in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). A jury convicted Ramirez of both counts
after a one-day trial. The district court1 sentenced him to 240 months and 120 months
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
of imprisonment on counts one and two, respectively, to be served concurrently. The
conviction for distribution arose out of a controlled buy with a cooperating defendant,
Karen Cash, and that conviction is not at issue in this appeal. Ramirez appeals only
the sufficiency of the evidence to sustain his conspiracy conviction. We reject
Ramirez’s sufficiency-of-the-evidence arguments and affirm the district court’s denial
of his motion for judgment of acquittal.
I. FACTUAL BACKGROUND
Ramirez was jointly charged with an alleged co-conspirator, Jeffrey Robert
Behle. Specifically, the Grand Jury charged that “two or more persons, known and
unknown to the Grand Jury, including defendants, SERGIO RAMIREZ, and
JEFFREY ROBERT BEHLE, did conspire to . . . knowingly and intentionally
distribute . . . methamphetamine.” Superseding Indictment, Dist. Ct. Doc. No. 10.
Ramirez and Behle were initially scheduled to be tried together, but Behle obtained
a continuance, and Ramirez proceeded to trial alone. At trial, the government did not
call Behle, nor did it present any evidence regarding Behle’s participation in the
charged conspiracy. Karen Cash was the government’s main witness against Ramirez
at trial, and she testified pursuant to a cooperating plea agreement.
Viewed in the light most favorable to the verdict, United States v. Cunningham,
83 F.3d 218, 222 (8th Cir. 1996), the evidence reveals the following facts. Cash’s
involvement in this case began when police executed a search warrant at her home
and recovered one pound of methamphetamine and one pound of marijuana. She
testified that she had purchased the methamphetamine from Ramirez approximately
three days prior to the execution of the search warrant. In exchange for a substantial
assistance motion, she agreed to make a controlled buy of methamphetamine from her
source, Ramirez. Cash and Ramirez met at a fast food restaurant, where Cash paid
Ramirez $9,000 for approximately one pound of methamphetamine. Ramirez gave
Cash the methamphetamine, which the police seized shortly after the drug transaction.
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The jury also heard the conversation, albeit from a surveillance tape of poor
audible quality, that took place between Cash and Ramirez during the controlled
purchase. Ramirez told Cash that the methamphetamine was made that day by other
people, that he could supply more methamphetamine that same day if Cash’s
customer needed more, that he could sell Cash multiple pound quantities of
methamphetamine, and that he supplied high quality, one-third pure
methamphetamine. Ramirez also encouraged Cash to purchase a pound of pure
methamphetamine because she could make substantially more money by diluting its
purity herself before resale.
At trial, Cash testified that she and Ramirez knew each other from work and
that, prior to the controlled buy, she had purchased one-pound quantities of
methamphetamine from Ramirez on at least three occasions. She also testified that
she had purchased marijuana from Ramirez. For each purchase, Cash paid Ramirez
in full at the time of the transaction, which took place either at an agreed-upon neutral
location or at Cash’s home.
II. DISCUSSION
On appeal, Ramirez challenges the sufficiency of the evidence as to the
conspiracy charge against him. He argues that the government failed to establish the
existence of a conspiracy, as well as an “interdependence” between himself and his
alleged co-conspirators. He argues that the government did not meet its burden of
proving a conspiracy because it failed to present any evidence regarding Ramirez’s
named co-conspirator, Behle. Second, with regard to his relationship with Cash,
Ramirez contends that, at most, the evidence shows the existence of a buyer-seller
relationship. To succeed in his appeal on this point, Ramirez acknowledges that we
would have to depart from established Eighth Circuit precedent concerning the
permissible inferences to be drawn from multiple sales of large quantities of drugs.
And finally, Ramirez claims that there could be no conspiracy between himself and
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Cash because, at the time of the controlled buy, Cash was acting as a government
agent.
A. Standard of Review
The standard of review on a sufficiency-of-the-evidence challenge is very
strict. United States v. Espino, 317 F.3d 788, 791 (8th Cir. 2003). “In reviewing the
sufficiency of the evidence on appeal, the court views the evidence in the light most
favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. at 792. “We will reverse only if no reasonable jury
could have found the accused guilty beyond a reasonable doubt.” Id.B. Conspiring to Distribute Methamphetamine
To find Ramirez guilty of the conspiracy offense charged against him, the
government was required to prove each of the following essential elements beyond
a reasonable doubt: (1) the existence of a conspiracy with an illegal purpose, (2) that
the defendant was aware of that conspiracy, and (3) that he knowingly became a part
of it. E.g., United States v. Beckman, 222 F.3d 512, 522 (8th Cir. 2000); United
States v. Mosby, 177 F.3d 1067, 1069 (8th Cir. 1999); United States v. Bass, 121
F.3d 1218, 1220 (8th Cir. 1997). There must be evidence that the defendant entered
into an agreement with at least one other person. United States v. Robinson, 217 F.3d
560, 564 (8th Cir. 2000). “The conspiracy may be proved through circumstantial
evidence and may be implied by the surrounding circumstances or by inference from
the actions of the parties.” United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003).
While Ramirez places much emphasis on the lack of evidence regarding
Behle’s participation in the conspiracy, the government correctly points out that the
indictment alleges that Ramirez conspired with Behle, as well as with “persons,
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known and unknown, to the Grand Jury.” Superseding Indictment, Dist. Ct. Doc. No.
10. That the government did not produce evidence tending to show any agreement
between Ramirez and Behle is not fatal because the government produced abundant
evidence of a conspiracy between Ramirez and Cash and between Ramirez and his
suppliers, even though the jury never learned the identity of those suppliers.
Ramirez points to several factors that courts have used to distinguish between
the existence of a conspiracy and a mere buyer-seller relationship, but he
acknowledges that no one factor is determinative. Our circuit has held that, “[t]o
prove the existence of a conspiracy, the government may provide information
regarding how long [the alleged co-conspirators] were associated with each other,
their established methods of payment, whether or not their transactions were
standardized, and their demonstrated level of mutual trust.” United States v.
Washington, 318 F.3d 845, 852 (8th Cir.), cert. denied, 124 S. Ct. 209 (2003). We
have disavowed any adherence to a strict, formalistic approach to the proof necessary
to show a conspiracy and have stated,
Having put forth testimony that a conspiracy existed, the government
need only provide evidence “establishing beyond a reasonable doubt a
connection of a defendant with a conspiracy.” United States v. DeLuna,
763 F.2d 897, 924 (8th Cir. 1985). Even if this connection is “slight,”
it is “sufficient to convict him of knowing participation in the
conspiracy.” Id.Washington, 318 F.3d at 852-53.
Here, the government produced more than sufficient evidence from which a
rational jury could find beyond a reasonable doubt that Ramirez and Cash, as well as
Ramirez and his suppliers, were members of a drug conspiracy. First, the sheer
quantity of drugs Cash purchased on at least three occasions prior to the controlled
buy is strong evidence of a conspiracy. Cash testified that she had purchased one-
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pound quantities of methamphetamine from Ramirez on multiple occasions. In this
circuit, “evidence of multiple sales of resale quantities of drugs is sufficient in and of
itself to make a submissible case of a conspiracy to distribute.” United States v.
Eneff, 79 F.3d 104, 105 (8th Cir. 1996); accord United States v. Delpit, 94 F.3d 1134,
1152 (8th Cir. 1996) (“In this Circuit, a series of drug deals for resale can prove a
conspiracy to distribute.”). It is widely recognized that this large quantity (one
pound) exceeds the amount of methamphetamine commonly purchased for “personal
use.” See, e.g., United States v. Hall, 171 F.3d 1133, 1148-49 (8th Cir. 1999)
(considering testimony that three and a half grams of methamphetamine was a
reasonable amount for personal use and determining that the defendants’ possession
of a half-pound of the drug was evidence of their intent to distribute); United States
v. Miller, 91 F.3d 1160, 1162 (8th Cir. 1996) (sales of one-pound quantities of
methamphetamine created inference of conspiracy).
The government at Ramirez’s trial did not present expert testimony regarding
personal use versus resale quantities of methamphetamine. However, the
conversation between Cash and Ramirez recorded during the controlled buy provides
a sufficient nexus to tie Ramirez to a drug conspiracy, which, in conjunction with a
common sense approach to the significance of repeatedly purchasing a pound of
methamphetamine, shows that Ramirez was involved in a conspiracy to distribute
methamphetamine.
Second, Ramirez’s own statements made during the controlled buy indicate that
others were involved in the conspiracy, that he knew Cash intended to further
distribute the purchased methamphetamine, and that, as Cash’s supplier, he stood to
gain from her success as a methamphetamine dealer. Namely, the jury heard evidence
of Ramirez’s recorded reference to other co-conspirators who manufactured the
methamphetamine that he sold, Ramirez’s statement that he could supply Cash with
more methamphetamine if she needed more for her customer, and Ramirez’s attempt
to persuade Cash to consider purchasing pure methamphetamine from him so that she
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could make a greater profit from her sales by diluting the pure methamphetamine
herself. This evidence, viewed in the light most favorable to the government,
sufficiently proves each of the essential elements of the conspiracy charge.
Ramirez strongly urges this panel to follow the law of those circuits that
require proof not only that the defendant gave drugs to others knowing that they
would be distributed, but also that the defendant had an agreement with those other
people to so further distribute the drugs. See, e.g., United States v. Lennick, 18 F.3d
814, 819 (9th Cir. 1994) (“To show a conspiracy, the government must show not only
that [the defendant] gave drugs to other people knowing that they would further
distribute them, but also that he had an agreement with these individuals to so further
distribute the drugs.”); United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993)
(en banc) (“‘[L]arge quantities of controlled substances, without more, cannot sustain
a conspiracy conviction.’”); United States v. Howard, 966 F.2d 1362, 1364 (10th Cir.
1992) (“The huge quantity of crack cocaine involved in this case permits an inference
of conspiracy, but by itself this is not enough to convict defendant.”). In United
States v. Miller, we acknowledged the contrary view of other circuits but maintained
that, in this circuit, “‘evidence of multiple sales of resale quantities of drugs is
sufficient in and of itself to make a submissible case of conspiracy to distribute.’”
Miller, 91 F.3d at 1162 (quoting Eneff, 79 F.3d at 105). As the Miller court
recognized, “as a panel, we are not free to depart from our precedents.” Miller, 91
F.3d at 1162 n. 1. Even so, this case does not require us to revisit our precedents
because, as described above, Ramirez’s case does not rest solely on the inferences
drawn from his sale of resale quantities of methamphetamine. His own recorded
statements tie him to a conspiracy to distribute methamphetamine.
Finally, Ramirez argues that, because Cash could not be considered a co-
conspirator when she was acting as a government agent, this court cannot consider
Ramirez’s statements made during the controlled buy. We agree with Ramirez’s
statement that “[i]t is . . . a well-established rule that ‘there can be no indictable
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conspiracy involving only the defendant and government agents and informers.’”
United States v. Rios, 171 F.3d 565, 566 (8th Cir. 1999) (quoting United States v.
Nelson, 165 F.3d 1180, 1184 (8th Cir. 1999)). Nevertheless, we disagree with his
assertion that we cannot consider his incriminating statements made during a
controlled buy as evidence of his participation in a drug conspiracy (1) because they
reveal his involvement in a conspiracy that extends beyond Cash and beyond the
controlled buy and (2) because they shed light on his knowledge of what Cash did
with past one-pound purchases of methamphetamine from Ramirez. That is to say
that the statements provide the jury a reasonable basis from which to infer that
Ramirez knew that Cash distributed the past one-pound quantities of
methamphetamine that she purchased from him. See Rios, 171 F.3d at 566 (“While
Mr. Rios is therefore correct that no conspiracy could have existed between him and
Mr. Selko during the sting operation itself, we believe that there is ample evidence
in the record of his knowledge of and participation in a conspiracy to distribute
methamphetamine prior to that date.”).
III. CONCLUSION
Accordingly, because the evidence in the light most favorable to the verdict
shows Ramirez’s voluntary participation in a conspiracy to distribute
methamphetamine, we affirm the judgment of conviction.
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