United States v. Ramiko Jermaine Moncur

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11389
________________________
D.C. Docket No. 1:10-cr-20801-JAG-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAMIKO JERMAINE MONCUR,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 5, 2014)
Before MARCUS, FAY, and WALKER, * Circuit Judges.
*
Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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PER CURIAM:
Ramiko Jermaine Moncur was convicted in the United States District Court
for the Southern District of Florida for conspiracy to possess with intent to
distribute and an attempt to possess with intent to distribute marijuana, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. Moncur now appeals the convictions, arguing
both that the evidence was insufficient, and that the district court committed
reversible error by instructing the jury that if it were to find Moncur guilty of either
or both charges, it would have to find him responsible for the total amount of
marijuana that was the object of the conspiracy or the attempt. After thorough
review, we conclude that the evidence was sufficient to sustain Moncur’s
convictions. Moreover, any possible error in the court’s supplemental jury
instruction was harmless. Accordingly, we affirm.
I.
A.
The essential facts adduced at trial are these. On October 21, 2010, at around
12:30 p.m., the U.S. Coast Guard intercepted a vessel transporting approximately
366 kilograms (807 pounds) of marijuana near the coast of Miami. The owner and
sole occupant of the vessel, Francis Ferris (“Ferris”), informed the government
agents that he picked up the bales of marijuana in Bimini from a Bahamian male
known as “Dude.” Ferris agreed to cooperate with U.S. Immigration and Customs
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Enforcement agents in arranging a controlled delivery of the marijuana. That
afternoon, Ferris exchanged numerous telephone calls with co-conspirator Charles
Francis (“Francis”), who planned to purchase and pick up the marijuana from
Ferris at the Pelican Harbor Marina in Miami.
Agents loaded the bales of marijuana into a Dodge Ram pick-up truck for
the controlled delivery that evening, and Ferris drove the vehicle to the marina.
Shortly after 7:30 p.m., Francis arrived at the agreed-upon delivery location in a
Nissan Maxima sedan driven by the appellant, Moncur, Francis’s life-long friend.
Co-conspirator Brian Martin entered the marina in a Toyota Sienna minivan that
followed closely behind Moncur’s sedan. After Moncur pulled into the marina,
Francis got out of the car to speak with Ferris. Meanwhile, Moncur and Martin
backed their vehicles into parking spots and waited. Notably, Moncur turned off
his engine and headlights. Ferris handed Francis the keys to the pick-up truck
containing the marijuana, and when Francis attempted to start the truck, the
authorities quickly arrested the four co-conspirators.
In connection with the arrest, the agents seized two cellular telephones
belonging to Moncur. Moncur consented to the agents’ search of one of the
telephones (the “Huawei cellular phone”). 1 The agents identified the telephone
1
With respect to Moncur’s other cellular telephone, the district court noted in its order on
Moncur’s pre-trial motion to suppress evidence that “the government does not contend that [this
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number for Moncur’s Huawei cellular phone as the same number that Francis used
on October 21 to call Ferris and arrange the delivery.
B.
On November 4, 2010, a federal grand jury returned a four-count indictment
charging Ferris, Francis, Martin, and Moncur with multiple narcotics and
conspiracy offenses. Specifically, the indictment charged Moncur with conspiracy
to possess with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and an attempt to possess with intent
to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§
841(a)(1), 846, and 18 U.S.C. § 2. Unlike the other indicted co-conspirators,
Moncur pled not guilty and proceeded to trial.
Over the course of a four-day jury trial, the government presented the
testimony of Ferris and numerous law enforcement agents involved in the
investigation and controlled delivery. Moreover, the government presented
evidence demonstrating that Moncur’s Huawei cellular phone was registered under
a false name and address. Finally, the government introduced incriminating call
records from the Huawei cellular phone, as well as from Francis’s and Martin’s
cellular phones. At the close of the government’s case, Moncur moved
phone] was used in connection with the instant drug conspiracy and there is nothing before the
court suggesting that it was set up under an alias for the purpose of frustrating law enforcement.”
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unsuccessfully for a judgment of acquittal on both counts pursuant to Federal Rule
of Criminal Procedure 29. The defense rested without calling any witnesses.
In its charge to the jury, the court delivered the following standard
instruction:
You may find the Defendant guilty of the crime[s charged] even if the
amount of the controlled substance for which he should be held
responsible is less than 100 kilograms of marijuana. So, if you find the
Defendant guilty, you must also unanimously agree on the weight [of]
the marijuana the Defendant conspired [or intended] to possess and
specify the amount on the verdict form.
See Eleventh Circuit Pattern Jury Instructions, Offense Instruction No. 98, 100
(2010). The court also provided the jury with a two-page special verdict form
including sections for both counts in which Moncur was charged. For each count,
the verdict form asked the jurors to find Moncur guilty or not guilty, and, if they
found him guilty, to specify the amount of marijuana he “conspired [or attempted]
to possess with intent to distribute” by placing an “X” in the appropriate box. The
three options provided were: marijuana (A) weighing 1,000 kilograms or more, (B)
weighing 100 kilograms or more, and (C) weighing less than 100 kilograms.
However, during deliberations, the jury submitted the following question to
the district court: “If guilty, does the verdict require selection of (B) which
corresponds to the seized amount of marijuana? Or are we to select based on our
opinion of share of total amount attributable to defendant?” The court proposed the
following response: “If you find the defendant guilty of either or both counts then
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the defendant would be responsible for the total amount of the marijuana you find
was the purpose of the conspiracy or the attempt.” Defense counsel objected to the
proposed response, explaining,
The only problem, the answer is taking away any decision by the jury.
They are asking if they are going to find him guilty, do they have to
select the amount that is reflective of the amount seized or which they
are of the opinion that is attributable to Mr. Moncur? They have their
own opinion and the answer, unfortunately, you are telling them they
have to find him guilty of all the marijuana. . . . By instructing them
they have to find him guilty of everything takes away their decision-
making power.
The court overruled the objection, but remarked,
Your objection is well taken. Your objection is noted, and I commend
you for seeing the problem. I don’t know of any other way to answer
it except the . . . way I have answered it. . . . I will tell them you
should consider these answers together with all of the other
instructions previously given.
The jury found the defendant guilty on both counts and specified that
Moncur conspired and attempted to possess with intent to distribute marijuana
weighing 100 kilograms or more (option B). The district court sentenced Moncur
to the mandatory minimum of ten years of imprisonment under 21 U.S.C. §
841(b)(1)(B) based on a prior felony drug conviction and his instant convictions
involving 100 kilograms or more of marijuana. It also placed Moncur on
supervised release for a term of eight years following release from imprisonment,
and imposed a total special monetary assessment of $200.
This timely appeal followed.
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II.
First, Moncur argues that the trial evidence shows no more than his “mere
presence” at the marina on October 21, and, thus, is insufficient to sustain his
convictions for conspiracy and attempted possession of marijuana. We are not
persuaded.
We review sufficiency-of-the-evidence challenges de novo, viewing the
evidence in the light most favorable to the government. United States v. Jiminez,
564 F.3d 1280, 1284 (11th Cir. 2009). Moreover, we are obliged to draw all
reasonable factual inferences and make all credibility choices in favor of the jury’s
verdict. Id. A guilty verdict will not be disturbed unless no reasonable trier of fact
could have found guilt beyond a reasonable doubt based on the evidence in the
record. United States v. Langford, 647 F.3d 1309, 1319 (11th Cir. 2011).
To sustain a conviction for conspiracy to distribute marijuana, the
government must prove: (1) the existence of an agreement among two or more
persons to distribute the drugs; (2) the defendant’s knowledge of the conspiratorial
goal; and (3) the defendant’s knowing and voluntary participation in the
conspiracy. United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (quoting
United States v. Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999)). It is by now
well-settled that knowing participation in a conspiracy can be established through
circumstantial evidence, and the government need not prove that a defendant
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participated in every stage of the conspiracy or had direct contact with each of the
other alleged conspirators. See United States v. McNair, 605 F.3d 1152, 1195-96
(11th Cir. 2010); United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). To
prove attempted possession of marijuana with intent to distribute, the government
must establish beyond a reasonable doubt that the defendant: “(1) acted with the
kind of culpability required to possess [marijuana] knowingly and wilfully and
with the intent to distribute it; and (2) engaged in conduct which constitutes a
substantial step toward the commission of the crime under circumstances strongly
corroborative of [his] criminal intent.” United States v. McDowell, 250 F.3d 1354,
1365 (11th Cir. 2001).
The following critical pieces of evidence support Moncur’s convictions. To
begin with, Moncur did not act like an innocent bystander at the scene of the drug
transaction. Rather, he acted in a manner consistent with knowing and voluntary
complicity in the illegal undertaking. The appellant, Moncur, drove Francis, his
life-long friend, to transact the deal. See United States v. Lluesma, 45 F.3d 408,
410 (11th Cir. 1995) (noting that “presence and association are material and
probative factors that a jury may consider in reaching its verdict”). At trial, Agents
Jesus Partierra and Daniel Perez testified that Martin’s minivan closely followed
Moncur’s sedan when entering the marina. Agents Alexander Nader and Partierra
also offered testimony demonstrating that, upon arrival, Moncur briefly conversed
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with Ferris (the source of the dope) through Moncur’s car window. Even though no
evidence was presented describing the content of the parties’ conversation, a
reasonable jury could infer that they were discussing the transaction that was about
to occur based on the fact that the only link between Moncur and Ferris was their
involvement in the drug deal. After Francis exited the sedan, Moncur backed the
vehicle into a parking spot, turned off his engine and headlights, and waited while
Francis spoke with Ferris. Such behavior not only arguably evinces Moncur’s
knowledge of the deal that was transpiring, but also suggests his knowing
participation in countersurveillance efforts or in providing security for his close
friend. Likewise, Martin backed his minivan into a parking space.
According to Ferris’s testimony, the Pelican Harbor Marina was “a
reasonably deserted public place” -- not a location where one would ordinarily
drop off a friend in the evening without a specific purpose. Even though Moncur
explained to law enforcement agents while in custody that he was solely giving
Francis a ride to the marina, his actions suggested otherwise. Instead of just
dropping his friend off and leaving, the appellant parked his car (just as co-
conspirator Martin had done), turned the lights off, and waited for the drug deal to
unfold. A statement like Moncur’s, “if disbelieved by the jury, may be considered
as substantive evidence of the defendant’s guilt.” United States v. Alejandro, 118
F.3d 1518, 1521 (11th Cir. 1997) (quoting United States v. Brown, 53 F.3d 312,
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314 (11th Cir. 1995)). Moreover, Agent Nader testified that Moncur seemingly put
on “an act” when interviewed by the police about his involvement in the scheme.
The jury was free to credit, as it apparently did, Agent Nader’s testimony.
Furthermore, given the high volume of drugs -- 800 pounds of marijuana --
and large amount of cash -- $100,000 -- at stake in the deal, a reasonable jury could
readily conclude that the co-conspirators (including Moncur’s life-long friend)
would not have permitted an unaffiliated bystander to be present just to provide a
ride to the scene of the transaction and remain there as the deal was consummated.
See Lluesma, 45 F.3d at 410 (noting that “[a] jury may infer knowledgeable
voluntary participation from presence, when the presence is such that it would be
unreasonable for anyone other than a knowledgeable participant to be present”);
United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985) (finding “it
reasonable for a jury to conclude that in the course of transporting or distributing
millions of dollars worth of readily marketable marijuana, . . . a prudent smuggler
is not likely to suffer the presence of unaffiliated bystanders”). This is particularly
so because Martin, instead of Moncur, could have driven Francis to pick up the
marijuana. The trial evidence revealed that Martin rented the minivan he used to
drive to the marina at 5:38 p.m. on October 21, and Martin and Francis were in
frequent contact both before and after the car rental. Specifically, the call records
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showed that Martin and Francis exchanged calls at 5:23 p.m., 6:09 p.m., 6:37 p.m.,
7:57 p.m., and 7:58 p.m.
A reasonable jury could also infer Moncur’s knowing participation in the
conspiracy from his ownership of the Huawei cellular phone, which, notably, was
registered in a fictitious name and address and used to arrange the details. Agent
Perez explained at trial that “drop phones” are used so that they are “not traced
back to an individual person,” and he confirmed that he knew that Moncur was
using the Huawei cellular phone on October 21 “to set up a drug transaction.”
Moncur loaned his “drop phone” to Francis on the day of the drug deal, and
Francis used it to call Ferris several times to coordinate the delivery arrangements
and obtain directions to the marina. See United States v. Chavez, 584 F.3d 1354,
1364, n.10 (11th Cir. 2009) (noting that “abundant circumstantial evidence of the
ongoing conspiracy” and the defendant’s participation in it, including the fact that
the defendant had “four different cell phones in his name, used three other cell
phones not in his name, and possessed numerous other prepaid or disposable cell
phones,” supported the defendant’s conviction).
Moreover, the call records from Moncur’s Huawei phone, which were
introduced at trial, further support the jury’s verdict. On October 21, Moncur and
Francis exchanged five calls between 9:44 a.m. and 12:07 p.m., around the time
the marijuana was en route to Miami and just before the Coast Guard intercepted
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the vessel and its contraband. Moncur and Francis also each exchanged calls with a
common acquaintance named “Lamass” or “Lamont.” The timing and frequency of
these calls are revealing. Moncur and “Lamass” spoke at 11:32 a.m., 6:14 p.m.,
and 6:53 p.m. “Lamass” later called Moncur twice after Moncur was in custody,
presumably for an update on the delivery. Notably, Francis exchanged calls with
“Lamass” on October 21 at 11:33 a.m. (one minute after Moncur’s call with
“Lamass”), 7:04 p.m., and 7:09 p.m., and five times after Francis was in custody.
Lastly, Agent Nader testified that Moncur told police after his arrest that he
picked up Francis from his home in Miami Gardens at 4 p.m. on October 21. This
provided a reasonable basis from which the jury could conclude that Moncur was
with Francis during a call Francis made to Ferris from the Huawei cellular phone at
5:23 p.m., during which Ferris informed Francis, “You’re supposed to have ten
large for me.” Indeed, Moncur even answered Ferris’s subsequent telephone call to
Francis at 6:09 p.m. Even though there was no mention of drugs on these calls, the
evidence established that Moncur was with Francis -- a key participant in the
conspiracy -- in the critical hours leading up to the transaction. In addition to the
calls made from Moncur’s “drop phone” on October 21, the call records from
Francis’s cellular phone showed that Francis used his own phone to exchange calls
between 4 p.m. and the time of his arrest with Martin, Charley Johnson, an
unindicted co-conspirator who put Ferris in touch with Francis, and “Dude,” the
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original supplier of the dope. A reasonable jury also could find that Moncur was
with Francis when these calls took place. This, too, supports Moncur’s conspiracy
and attempted possession convictions.
The circumstantial case presented against Moncur is not overwhelming; but,
taken altogether and viewed in the light most favorable to the government, the
evidence is nonetheless sufficient to sustain the jury’s guilty verdict.
III.
Next, Moncur claims that the district court committed reversible error by
instructing the jury that if it were to find Moncur guilty of the counts in the
indictment, it would be required to find him responsible for the total amount of
drugs that “was the purpose of the conspiracy or the attempt.” This instruction,
Moncur claims, “took away from the jury’s ability to make [its] own factual
findings as to the amount of drugs for both counts.”
We review the district court’s response to a jury question for abuse of
discretion. United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009). The
district court has considerable discretion regarding the extent and character of a
supplemental jury instruction, but it may not misstate the law or confuse the jury.
Id. at 1247-48. “A challenged supplemental jury instruction is reviewed as part of
the entire jury charge, in light of the indictment, evidence presented and argument
of counsel ‘to determine whether the jury was misled and whether the jury
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understood the issues.’” United States v. Johnson, 139 F.3d 1359, 1366 (11th Cir.
1998) (quoting Johns v. Jarrard, 927 F.2d 551, 554 (11th Cir. 1991)).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Id. at 490. Two years later, in Harris v.
United States, 536 U.S. 545 (2002), the Supreme Court declined to extend
Apprendi to facts that increase the mandatory minimum sentence for a crime. Id. at
556-57. While Moncur’s appeal was pending before this Court, however, the
Supreme Court overruled Harris in Alleyne v. United States, --- U.S. ---, 133 S. Ct.
2151 (2013), holding that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Id. at 2155 (emphasis added). The
Supreme Court reasoned that “[b]ecause there is no basis in principle or logic to
distinguish facts that raise the maximum from those that increase the minimum,
Harris was inconsistent with Apprendi.” Id. at 2163.2
2
Neither party brought Alleyne to our attention at any stage in this appeal. In its brief, the
government asserts that any error in the district court’s supplemental instruction “would be
harmless because Moncur’s sentence did not exceed the statutory maximum applicable in the
absence of a specific drug-quantity finding,” and where, as here, “a specific [marijuana] quantity
triggers a mandatory minimum sentence” and “results in a sentence at or below the otherwise
applicable maximum sentence . . . there is no requirement that a specific drug quantity be . . .
submitted to a jury and proven beyond a reasonable doubt.” However, in light of Alleyne, this
reasoning no longer holds. Moncur was sentenced under § 841(b)(1)(B) because the jury
determined that his offenses involved 100 kilograms or more of marijuana. Section 841(b)(1)(B)
imposes a ten-year mandatory minimum for defendants, like Moncur, with a prior felony drug
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In this case, Moncur was charged with conspiring and attempting to possess
with intent to distribute 100 kilograms or more of marijuana. At trial, the court
properly instructed the jury:
[Y]ou may find the Defendant guilty of the crime[s charged] even if
the amount of the controlled substances for which he should be held
responsible is less than 100 kilograms of marijuana. So if you find the
Defendant guilty, you must also unanimously agree on the weight [of]
the marijuana the Defendant conspired [or intended] to possess and
specify the amount on the verdict form.
See Eleventh Circuit Criminal Pattern Jury Instructions 98, 100 (2010). The court
also provided the jury with a special verdict form, asking it to first determine
whether Moncur was guilty or not on each count, and if it found him guilty, to
determine as to each count whether he conspired or attempted to possess marijuana
weighing 1,000 kilograms or more, 100 kilograms or more, or less than 100
kilograms. But in the course of deliberations, the jury posed the following question
to the court: “If guilty, does the verdict require selection of (B) which corresponds
to the seized amount of marijuana? Or are we to select based on our opinion of
share of total amount attributable to defendant?” Overruling defense counsel’s
objection, the court responded, “If you find the defendant guilty of either or both
conviction, and therefore, the drug quantities in this case are elements that must be submitted to a
jury. See United States v. Curbelo, 726 F.3d 1260, 1269 (11th Cir. 2013) (“Because §
841(b)(1)(A) and (b)(1)(B) impose a mandatory minimum, the drug quantities in those
subsections are elements of the offense under Alleyne and must be charged in the indictment and
submitted to a jury.”).
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counts then the defendant would be responsible for the total amount of the
marijuana you find was the purpose of the conspiracy or the attempt.”
Viewed in the context of the entire jury charge and in light of the indictment
and the special verdict form, it is a close question whether the district court abused
its considerable discretion in delivering the challenged instruction. Notably, the
court did not direct the jury to select option (B) if it found Moncur guilty; it did not
take the drug quantity finding away from the jury. Nevertheless, by instructing the
jury that it must find the defendant responsible for the total amount that was the
“purpose of the conspiracy or attempt” if it rendered a guilty verdict, the court
appeared to limit the jury’s plenary discretion to determine the amount of dope that
Moncur conspired and attempted to possess with intent to distribute -- a fact that
triggered the application of the ten-year mandatory minimum under the Sentencing
Guidelines in this case. See United States v. Curbelo, 726 F.3d 1260, 1269 (11th
Cir. 2013). Thus, while the district court’s original charge and special verdict form
are altogether consistent with Alleyne, the court’s supplemental instruction could
be taken as having interfered, at least in some measure, with the jury’s fact-finding
province as to an element that triggered the mandatory minimum. Moreover, the
court’s supplemental instruction also could be read as having caused some
confusion by undermining the court’s original -- and indisputably proper -- charge.
See Eleventh Circuit Criminal Pattern Jury Instructions 98, 100 (2010).
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Regardless, we need not decide if the supplemental instruction, when taken
together with the original instruction and the special verdict form, was erroneous
because even if there was any error, Moncur would not be entitled to reversal of
his conviction since any claimed error plainly would be harmless. See United
States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011) (“Jury instructions are
subject to harmless error review.”). The conspiracy and attempt charges at the
heart of this case concerned only the singular quantity of marijuana that was seized
from Ferris on board the Sea Swan II and delivered in the pick-up truck to the co-
conspirators pursuant to the law enforcement agents’ plan. Notably, the amount of
that contraband was not in dispute. Indeed, Moncur and the government stipulated
at trial that the seizure involved 366 kilograms. There is no evidence in this record
supporting any other amount of marijuana attributable or reasonably foreseeable to
Moncur other than the total amount of drugs that “was the purpose of the
conspiracy or the attempt.” Given the government’s theory of the case based
exclusively on the sole marijuana shipment of 366 kilograms that formed the basis
of the charges and the evidence presented at trial, we are satisfied that the court’s
supplemental instruction did not and could not have prejudiced Moncur. 3 See
3
Any claimed error in the district court’s instruction would not have been of a constitutional
dimension since the drug quantity element was submitted to the jury, and while the supplemental
instruction arguably intruded upon the jury’s fact-finding province, the jury nonetheless made a
finding as to the amount of marijuana attributable to Moncur. But even assuming arguendo that
the instruction did raise constitutional error, any error would be harmless beyond a reasonable
doubt because, as we’ve noted, a rational jury could not have concluded that Moncur conspired
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United States v. Knight, 342 F.3d 697, 712 (7th Cir. 2003) (concluding that even if
the jury instruction directing the jury to make a finding on a special verdict form as
to the drug quantity attributable to the conspiracy, as opposed to defendant-specific
drug quantities, were erroneous, any error would be harmless given the evidence
that each of the three defendants was responsible for, and could easily foresee that
the conspiracy involved, five or more kilograms of cocaine). Simply put, by
finding the defendant guilty of conspiracy and attempted possession with intent to
distribute, on this record the jury necessarily must have found that the amount of
drugs Moncur was responsible for was 366 kilograms.
AFFIRMED.
or attempted to possess with intent to distribute fewer than 100 kilograms of dope based on the
overwhelming trial evidence. See Neder v. United States, 527 U.S. 1, 18 (1999) (concluding that
constitutional error is harmless if it is “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error”); United States v. Anderson, 289 F.3d 1321,
1327 (11th Cir. 2002) (holding that the failure to charge or submit to the jury a specific drug
quantity is harmless error under Apprendi if, “by finding the defendant guilty, the jury
necessarily must have found, beyond a reasonable doubt, that a certain quantity of drugs was
involved in the offense”).
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