United States v. Ramirez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4147
FREDDY RAMIREZ,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4161
JUAN ANTONIO AGUILAR,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-00-330)
Argued: December 6, 2001
Decided: January 10, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: William Harry Ehlies, II, Greenville, South Carolina, for
Appellant Ramirez; David Wilson Plowden, Assistant Federal Public
2 UNITED STATES v. RAMIREZ
Defender, Greenville, South Carolina, for Appellant Aguilar. Mark C.
Moore, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: Scott N. Schools, United States Attorney,
E. Jean Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Upon observing a tractor-trailer, driven by Freddy Ramirez, drift
onto the shoulder of the road, the police patrol initiated a traffic stop.
After brief questioning of Ramirez and his passenger, Juan Antonio
Aguilar, the police asked for Ramirez’ consent to search the vehicle.
They uncovered 367 kg of cocaine, which was later introduced at the
joint trial of Ramirez and Aguilar. Subsequent to arrest, Ramirez pro-
vided DEA agents with certain statements inculpating Aguilar, which
were also introduced at trial through the testimony of those agents;
Ramirez did not take the stand.
Both Ramirez and Aguilar were convicted of conspiracy to possess
with intent to distribute cocaine and of possession with intent to dis-
tribute cocaine. Ramirez was sentenced to 293, and Aguilar to 190,
months of imprisonment. Ramirez appeals the district court’s admis-
sion of cocaine discovered during the search and its denial of a
decrease in offense level based on minimal or minor participant sta-
tus. Aguilar, for his part, challenges the admission of Ramirez’ state-
ments. We examine each claim in turn.
I.
Trooper Stevens, a member of the Aggressive Criminal Enforce-
ment Team, testified that he decided to stop Ramirez’ truck after
UNITED STATES v. RAMIREZ 3
observing it veer off to the shoulder. J.A. 17. Once the truck stopped,
Stevens questioned Ramirez as to why the vehicle was drifting.
Ramirez appeared nervous and claimed that a truck in front of him
slowed. J.A. 100-11. When asked about Aguilar, Ramirez at first
asserted that Aguilar was his co-driver. After Stevens pointed out that
there was no co-driver listed in the logbook, Ramirez changed his
story, claiming that Aguilar just wanted a ride. J.A. 111-13. Ramirez
was hesitant when asked Aguilar’s name; he then responded that he
called him "Matusa." J.A. 114. The bill of lading for the load was
handwritten and not very descriptive. Id. Aguilar, when questioned,
gave answers inconsistent with Ramirez’ and also changed his own
story within minutes. J.A. 118; 157-58. A two-way radio, which
Aguilar initially claimed was a camera, was discovered in his pocket.
J.A. 36, 120. During these conversations, Stevens performed some
inspection of the truck for safety reasons and to dispel his growing
suspicion of illegal activity. Ramirez subsequently gave Stevens per-
mission to search the vehicle. That search, performed by troopers and
a dog, took about twenty-five minutes.
In analyzing Ramirez’ claim of lack of reasonable suspicion for the
stop, subsequent questioning and the inspection of the vehicle, we
look at the totality of circumstances, United States v. Sokolow, 490
U.S. 1, 708 (1989), and give credit to "the practical experience of
officers who observe on a daily basis what transpires on the streets,"
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). We are
satisfied that the stop was reasonable — large vehicles drifting out of
the marked lanes pose danger. We are also convinced that there was
sufficient evidence for the continuation of the stop and for the ques-
tioning of Ramirez and Aguilar. Both Ramirez and Aguilar appeared
nervous; their stories conflicted; and the bill of lading and the log
book were not properly kept. J.A. 110-20. Given these circumstances,
which "eliminated a substantial portion of innocent travelers," United
States v. Brugal, 209 F.3d 353, 360 (4th Cir. 2000), and Stevens’
training to detect crimes more serious than traffic violations, it was
reasonable to continue the questioning and to inspect the exterior of
the vehicle.
Ramirez next argues that the length of detention was unreasonable.
About fifteen minutes elapsed from the time Ramirez was stopped
until he consented to a search; the search then took about twenty-five
4 UNITED STATES v. RAMIREZ
more minutes. During the fifteen minute period, Stevens issued a
warning ticket, examined Ramirez’ paperwork, and questioned him
about his passenger; after all his paperwork was returned to him,
Ramirez allowed Stevens to search the vehicle. J.A. 31-33. The
twenty-five minute search that followed "proceeded expeditiously";
neither Stevens nor other troopers were "dilatory" in their examina-
tion of the contents of the cabin, the truck and the load. United States
v. Sharpe, 470 U.S. 675, 687 (1985). To examine the load, they had
to dismantle the crates in the truck. One of the crates, which contained
drugs, was extremely hard to open because it had staples, nails, and
other fixtures securing it shut. J.A. 44. Naturally, it took some time
to get to the packages inside the crates. Given the adduced evidence,
there is no doubt that Stevens "diligently pursued a means of investi-
gation that was likely to confirm or dispel [his] suspicions quickly,
during which time it was necessary to detain [Ramirez]." Id. at 686.
Accordingly, we are satisfied that the length of detention was reason-
able.
We also reject Ramirez’ contention that his consent was invalid
because of a language barrier. Stevens testified that he asked Ramirez
if he could search the vehicle, that Ramirez said "yes," making a hand
gesture in the affirmative, and that he, Stevens, did not perceive any
language problems. J.A. 32-33. The district court, presented with this
evidence, did not clearly err in concluding that the search was consen-
sual.
Ramirez also claims that the scope of the search exceeded the
scope of consent, because "consent . . . would only extend to a single
search of the tractor," Br. for Appellant at 28, while Stevens, along
with other troopers and the dog, searched both the cabin and the truck
in three stages. Moreover, Ramirez claims, he did not consent to the
search of the load. Id. Stevens testified that Ramirez allowed him to
search "the vehicle" and Stevens understood that permission to
encompass the cabin, the truck and the load. Ramirez adduces no evi-
dence that his consent was limited, either with respect to the number
of times troopers could look through the vehicle, or with respect to
the examination of the load. Nor is there any evidence that he
objected at any point during that search to the scope of the search.
Thus, the court did not err in admitting the seized drugs into evidence.
UNITED STATES v. RAMIREZ 5
II.
Ramirez finally argues that he was entitled to a downward adjust-
ment in the offense level because he was "a participant . . . plainly
among the least culpable of those involved in the conduct of a group."
U.S.S.G. § 3B1.2, n.1. But Ramirez is "not automatically entitle[d]
. . . to a reduction" under this Guideline just because he was a courier.
United States v. White, 875 F.2d 427, 434 (4th Cir. 1989). A determi-
nation of minor status "turns upon culpability, not courier status." Id.
Ramirez, the driver of the three-hundred and sixty plus kilogram load,
was an "indispensable part of a drug dealing network." Id. The district
court did not clearly err in denying the downward adjustment.
III.
Aguilar challenges the admission of testimony by DEA agents
Duarte and Poag reciting Ramirez’ post-arrest statements. Duarte tes-
tified that Ramirez named Aguilar in response to the question of who
else was involved in the transportation of drugs at issue, and that
Ramirez also called Aguilar his "partner." J.A. 262. Duarte also testi-
fied that Ramirez stated that Aguilar was present when Ramirez and
others loaded the crates, containing drugs, onto the truck in Houston,
the origin of the trip. Poag testified that Aguilar was initially riding
in a car (accompanying the truck) with Ayala, the owner of the drugs,
and that Ayala told Ramirez that he wanted Aguilar to ride in the
truck the rest of the way. J.A. 194.
Aguilar did not object at trial to the admission of Ramirez’ state-
ments; accordingly, we review under the plain error standard. United
States v. Olano, 507 U.S. 725, 732-37 (1993). It is clear that the dis-
trict court erred and the error was plain. Under Bruton v. United
States, 391 U.S. 123 (1968), a defendant’s Sixth Amendment rights
are violated when a non-testifying co-defendant’s confession impli-
cates the defendant. Ramirez’ confession "facially incriminat[ed]"
Aguilar, Richardson v. Marsh, 481 U.S. 200, 208-09 (1987), by pro-
viding "[s]pecific testimony that [Aguilar] helped [Ramirez] to com-
mit the crime." Id. at 208 (internal quotations omitted). Such
testimony "is more vivid" than inferential incrimination (which is not
incriminating on its face, but becomes so only when linked with evi-
dence introduced later at trial), and "hence more difficult to thrust out
6 UNITED STATES v. RAMIREZ
of mind." Id. at 209. The government’s reliance on United States v.
Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999), where the court admitted
"redacted statements that refer[red] to the existence of another party
who may be the defendant through symbols or neutral pronouns,"
such as "another person," is misplaced. Although "partner" may be,
in isolation, a "neutral pronoun," Ramirez’ use of "Aguilar" next to
"partner" renders Ramirez’ statement "facially incriminat[ing]."
However, the admission of Ramirez’ statements did not affect
Aguilar’s substantial rights because there was sufficient evidence for
Aguilar’s conviction even absent Ramirez’ statements; moreover,
both agents were subject to a rigorous cross-examination.
Apart from Ramirez’ statements, the government adduced the fol-
lowing evidence of Aguilar’s involvement in the conspiracy: both
Aguilar’s and Ramirez’ trips started in Houston, where drugs were
loaded onto the truck; at the time of the stop, Aguilar was riding with
Ramirez in the truck containing drugs; Aguilar’s answers to police
questions regarding his relationship to Ramirez, and the origin, desti-
nation, and purpose of the trip, were contradictory and inconsistent
with Ramirez’ statements, which are themselves admissible as co-
conspirators’ statements pursuant to Federal Rule of Evidence
801(d)(2)(E). Furthermore, the police discovered in Aguilar’s pocket
a two-way radio, typically used by drug traffickers, J.A. 264. Finally,
Aguilar’s wallet contained a card with Ayala’s home telephone num-
ber written on the back. J.A. 184. This evidence was sufficient to sup-
port Aguilar’s conviction.
Additionally, the defense used the agents’ responses on cross-
examination to buttress its own theory of the case and to undermine
any prejudicial effects that may have resulted from statements on
direct. On cross-examination, Duarte admitted that Ramirez said that
Aguilar assisted him only by loading crates onto the truck. J.A. 277.
That portrayal of the events is consistent with Aguilar’s primary argu-
ment that he did not know that the crates contained cocaine. Further-
more, on cross-examination, Duarte acknowledged that he "might
have used the word ‘partner,’" id. (emphasis added), and Aguilar’s
counsel emphasized that uncertainty in closing. Finally, the defense
used the rest of Ramirez’ statements to argue that Aguilar was merely
a friend of Ayala.
UNITED STATES v. RAMIREZ 7
Because the admission of Ramirez’ testimony through Duarte and
Poag did not affect Aguilar’s substantial rights, it is unnecessary to
examine the last Olano factor.
CONCLUSION
For the reasons stated above, Ramirez’ conviction and sentence and
Aguilar’s conviction are affirmed.
AFFIRMED