Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1223
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN ADRIAN RAMNATH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lipez, Circuit Judge,
Souter, Associate Justice,* and Selya, Circuit Judge.
J. Gregory Batten for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
March 1, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The defendant, Stephen
Ramnath, was convicted of conspiracy to distribute, and possess
with intent to distribute, more than fifty grams of crack in
violation of 21 U.S.C. §§ 846 and 841(a)(1). He argues that
admission of pre-conspiracy and bad act evidence was error, that
the evidence was insufficient to prove conspiracy, that admission
of alleged co-conspirator hearsay was reversible and that the Maine
venue for trial was unsupported. We hold the pre-conspiracy and
bad act evidence admissible and the conspiracy clearly shown. The
remaining claims assume that the conspiracy was unproven and fall
in consequence of our contrary conclusion.
On July 25, 2007, law enforcement agents in Portland,
Maine, made a controlled purchase of crack cocaine from Hussein Al-
Rikabi, and then got authorization to tap his phone. Over the
course of the next week, Ramnath (speaking from New Jersey) was a
party in conversations that anyone would recognize as guarded
discussions about price and quantity of drugs to be obtained by
Ramnath for sale to Al-Rikabi. Ultimately, they arranged that Al-
Rikabi would drive from Maine to see Ramnath in New Jersey. The
police observed this meeting through binoculars and saw a large
quantity of cash pass from Al-Rikabi to Ramnath in exchange for
something they could not make out. The next day, officers in
Portland saw Al-Rikabi engage in a series of short encounters in
commercial establishments and on the streets, including a
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neighborhood noted for drug sales. Less than two weeks later, the
wiretap picked up another conversation in which Al-Rikabi
apparently sought to buy more drugs from Ramnath, who spoke to the
ability of his sources to produce material good to “cook.”
Two months after that phone interception, Al-Rikabi was
arrested in Maine on drug charges, and a day later so was Ramnath,
in New Jersey. Ramnath admitted that he already knew of Al-
Rikabi’s arrest, and that twice he had sold him 100 grams of crack
knowing it was for resale in Maine at a price higher than the rate
in the New Jersey market. Ramnath consented to a search of his
apartment, which produced 16 grams of powder cocaine, some cutting
agent, a digital pharmacist’s scale and the sort of plastic baggies
used for individual drug sales.
As for Ramnath’s assignment of error in admitting
evidence of the controlled purchase on July 25, trial counsel
objected that it was irrelevant because the conspiracy was charged
as having begun on July 26. Current counsel adds that its unfair
prejudicial effect substantially outweighed its probative value,
see Fed. R. Evid. 403, and that trial counsel was ineffective in
failing to request an instruction limiting its consideration to any
possible bearing on Ramnath’s understanding or intentions in
dealing with Al-Rikabi. The relevance objection was rightly
overruled; the evidence served to identify Ramnath’s alleged co-
conspirator, Al-Rikabi, as a drug dealer, with the implication that
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someone supplying him with large quantities of drugs would know
what he would do with them. Since evidence subsequently obtained
showed that Ramnath and Al-Rikabi engaged in substantial drug
transactions (as, indeed, Ramnath admitted, only denying that the
parties were conspirators), the relevance of this evidence was
clear, and its probative value not substantially outweighed. The
further claim of counsel’s constitutional inadequacy adds nothing
to this appeal; the prevailing rule in this circuit generally bars
consideration of an ineffectiveness claim raised for the first time
on appeal, United States v. Theodore, 354 F.3d 1, 3 (1st Cir.
2003), and in any event Ramnath’s counsel mentions it with a
brevity that fails to address adequately the elements of a charge
of ineffective assistance under Strickland v. Washington, 466 U.S.
668, 687 (1984).
Ramnath’s unsuccessful objection to admission of the
drugs and paraphernalia found in his apartment was followed by an
instruction that the jury could consider them “only for the limited
purpose of deciding whether Mr. Ramnath had the state of mind or
intent necessary to commit the crime charged,” and its admission
was consistent with the provision of Federal Rule of Evidence
404(b) that evidence of other crimes, while inadmissible to prove
propensity to commit the crime charged, nonetheless may be received
to show motive, intent or plan, among other things. Being
admissible here, it was an evidentiary bookend to the testimony
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about Al-Rikabi’s drug sale just before the authorities got wind of
his connection with Ramnath. The quantity of drugs, the baggies,
the cutting agent and the scale (described by a police witness as
a distributor’s “number one tool”) combined to confirm that Ramnath
was, as he admitted, a sophisticated drug dealer, and provided
probative evidence of his intent when he undertook to supply
another known dealer with commercial quantities of crack cocaine.
Ramnath’s admissions were thus given corroborative
context for consideration on the conspiracy charge, that is, that
Ramnath had voluntarily agreed with Al-Rikabi to distribute the
specified quantity of crack (and to possess it for that purpose)
with the understanding that Al-Rikabi would distribute it to
others. See United States v. Thompson, 449 F.3d 267, 275 (1st Cir.
2006). This could not have been a difficult issue for the jury.
The evidence just discussed indicates that Ramnath was a
distributor and Al-Rikabi was dealing in retail quantities in
street sales. The telephone conversations show that Ramnath also
sold in volume and undertook to get a large quantity of crack for
Al-Rikabi. (This much is inferrable from Ramnath’s own intercepted
statements, as to which he has no sustainable hearsay objection.)
The account of the New Jersey surveillance established that the
initial dialogue led to a transaction involving a considerable sum
of money, and Ramnath’s subsequent statements over the phone
reflect an understanding that his relationship with Al-Rikabi would
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continue. These facts are confirmed by his confession, which
mentioned two sales of commercial quantities to Al-Rikabi as well
as the Maine destination of the crack for profitable resale there.
While Ramnath argues that his confession ought to be ignored as
uncorroborated, if corroboration were needed the record supplies
it: evidence of Al-Rikabi’s occupation, observations during the New
Jersey surveillance, Ramnath’s intercepted statements, and the
dealer’s accoutrements in his apartment. The pieces fit
comfortably together and the jury was entitled to find agreement to
a joint course of conduct resulting in Al-Rikabi’s retail sales in
Maine.
Given the sufficient support for the conspiracy charged,
the remaining issues here go by the boards. The objection to
admitting Al-Rikabi’s intercepted statements simply repeats the
claim that no conspiracy was proven. But because it was shown (by
evidence including “some extrinsic proof,” United States v.
Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)), the co-conspirator
statements fall outside the definition of hearsay, see Fed. R.
Evid. 801(d)(2)(E), there being no serious question that the
discussions of larger sales were made during and in furtherance of
the conspiracy. What Al-Rikabi’s statements added to the probative
force of Ramnath’s own is debatable, but admissibility is not.
Neither is proper venue. Ramnath told the police the
drugs Al-Rikabi obtained from him were for resale in Maine, at
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prices higher than those in New Jersey, and evidence in the record
is enough to show that Maine was where the chain of commerce ended.
To be sure, Ramnath argues that his statement is incompetent to
support the venue because he was a mere seller, not part of a
conspiracy whose business extended to Maine. But our conclusion
that conspiracy was sufficiently shown settles that; the venue was
properly laid in a district where the object of the conspiracy
offence was realized, see 18 U.S.C. § 3237(a); United States v.
Santiago, 83 F.3d 20, 25 (1st Cir. 1996).
Affirmed.
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