In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3787
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTHUR L. RAMSEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03-30055-WDS—William D. Stiehl, Judge.
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ARGUED APRIL 8, 2004—DECIDED APRIL 18, 2005
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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a jury trial, Arthur L.
Ramsey was acquitted of assaulting a federal officer with a
dangerous weapon and found guilty of maintaining a drug
house by permitting his son to use the mobile home he
leased for distributing and possessing with intent to dis-
tribute crack cocaine. Although Ramsey appeals the district
court’s denial of his motion to dismiss from the indictment
of the drug house count, we find that the indictment
included the essential elements of the crime. We also find
2 No. 03-3787
based on our review of the evidence that the district court’s
failure to include the statute’s mens rea requirement was
harmless error. Thus, we affirm Ramsey’s conviction. How-
ever, in light of the Supreme Court’s recent decision in
United States v. Booker, 125 S.Ct. 738 (2005), and this court’s
decision in United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), we order a limited remand regarding Ramsey’s
sentence.
I. Background
After receiving a tip from a confidential informant that
drug activity was taking place at a trailer located at 2820
Calvin Boulevard, Lot 20 in Cahokia, Illinois, and following
several controlled buys of drugs at the trailer, law enforce-
ment obtained a warrant to search the mobile home. At that
time, law enforcement had no information relating to
defendant Arthur Ramsey.
Concerned about the possible presence of guns in the
home, a total of eighteen state and federal officers executed
the search warrant using a battering ram to gain entry.
Upon entry, Ramsey hit the lead officer of the entry team,
Investigator Tom Trice, of the St. Clair County Sheriff’s
Department, with a two-by-two stick at least twice. Even-
tually, officers secured Ramsey. The officers continued to
search the home and found another individual, Marrio
Robinson, who had crack cocaine in his jacket. Crack and
powder cocaine was also seized from a vacuum cleaner
found in Ramsey’s bedroom. In addition, two guns—one
found beneath the bathroom sink and the other in the back
bedroom—were seized from the property. Robinson told the
officers of other places in the trailer where drugs were
hidden. Police also found a small scale on top of the kitchen
counter. Both Ramsey and Robinson were arrested that day.
The next day, Ramsey signed a statement in which he
admitted that he rented the trailer from his daughter, that
No. 03-3787 3
Marrio Robinson was his son, and that Robinson moved in
with Ramsey. Ramsey admitted that he knew Robinson
dealt drugs out of the trailer. Ramsey also stated that he
told Robinson to stop dealing drugs, however Robinson
ignored him.
Ramsey was charged with assaulting a federal officer
with a dangerous weapon, in violation of 18 U.S.C. § 111,
and with maintaining a drug house in violation of 21 U.S.C.
§ 856(a)(2). At trial, one of the persons who participated in
the controlled buys from the trailer, Darin Varner, testified
that he had purchased crack cocaine from Robinson at the
trailer 35 to 40 times and that Ramsey was sometimes
present and would see Varner purchase the crack cocaine
from Robinson. On other occasions, Ramsey would leave the
room during the transactions. At the close of the pros-
ecution’s case, Ramsey moved to dismiss the charge for
maintaining a drug house (Count VII) for failure to allege
that he managed and controlled the premises at issue. The
district court denied that motion. Over Ramsey’s objection,
the district court granted the prosecution’s request to re-
move the word “intentionally” from the jury instructions on
the same count. The jury acquitted Ramsey of the assault
charge. However, the jury found Ramsey guilty of maintain-
ing a drug house.
At sentencing, the district court found Ramsey’s relevant
conduct to have involved approximately 20.8 grams of crack
cocaine. The district court concluded that based on Ramsey’s
criminal history category of I combined with his offense
level of 24, his possible sentence under the United States
Sentencing Guidelines ranged from 51 to 63 months. The
district court sentenced Ramsey to a term of imprisonment
of 54 months, two years of supervised release, a fine of
$400, and a special assessment of $100. Ramsey appeals the
sufficiency of the indictment, the content of the jury
instructions, sufficiency of the evidence, and the length of
his sentence.
4 No. 03-3787
II. Analysis
A. Sufficiency of the Indictment
Ramsey asserts that the district court erred by denying
his motion to dismiss the charge of maintaining a drug
house (Count VII) from the indictment. Ramsey argues that
the charging document failed to allege that he managed or
controlled the mobile home he was leasing, which is an
essential element of the crime charged.
This court reviews the sufficiency of an indictment de
novo. United States v. Sandoval, 347 F.3d 627, 633 (7th Cir.
2003); United States v. McLeczynsky, 296 F.3d 634, 636 (7th
Cir. 2002). We deem an indictment sufficient if it: (1) states
the elements of the offense charged; (2) fairly informs the
defendant of the nature of the charge so that he may
prepare a defense; and (3) enables him to plead an acquittal
or conviction as a bar against future prosecutions for the
same offense. McLeczynsky, 296 F.3d at 636 (citing Hamling
v. United States, 418 U.S. 87, 117 (1974)). Moreover, we
review indictments “on a practical basis and in their
entirety, rather than in a hypertechnical manner.” United
States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (internal
citations omitted).
Ramsey claims that Count VII of his indictment did not
state all the elements of 21 U.S.C. § 856(a)(2), the offense
for which he was charged. That statutory provision makes
it unlawful to:
manage or control any place, whether permanently
or temporarily, either as an owner, lessee, agent,
employee, occupant, or mortgagee, and knowingly
and intentionally rent, lease, profit from, or make
available for use, with or without compensation, the
place for the purpose of unlawfully manufacturing,
storing, distributing, or using a controlled substance.
Count VII of the indictment alleges that Ramsey:
No. 03-3787 5
did knowingly and intentionally, as the lessee, make
available for use a place, to wit: defendant permit-
ted a mobile home he leased, located at 2820 Calvin,
Lot 20, in Cahokia, Illinois, in the Southern District
of Illinois, to be used for the purpose of distributing
and possessing with intent to distribute controlled
substances, namely mixtures and substances con-
taining a detectable amount of cocaine base, com-
monly known as ‘crack’ cocaine, a Schedule II
Controlled Substance, in violation of Title 21[ ]
U.S.C. § 856.
Clearly the indictment failed to use the words “manage or
control.”
However, this court has held that not explicitly including
all the elements of the offense in an indictment is not fatal
so long as the absent elements can be deduced from the lan-
guage that is actually included in the charging document.
See United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000)
(“It is not necessary to spell out each element, but each ele-
ment must be present in context.”); see also United States v.
Hernandez, 330 F.3d 964, 978 (7th Cir. 2003) (“[The] words
[employed in the indictment] sufficiently convey the notion
of knowledge and intent, so it cannot be said that this
indictment fails to charge the offense by any reasonable
instruction.” (internal citations omitted)). The question there-
fore becomes whether “mak[ing] available” a place for illicit
use, that he “permitted a mobile home he leased,” and the
description of Ramsey “as the lessee” together sufficiently
encompass the meaning of “manage and control” to sustain
the indictment lacking those terms.
One cannot reasonably make a place available for ano-
ther’s use nor permit another to use it if one does not man-
age or control the place. The indictment’s use of the word
“permitted” is particularly noteworthy here. Furthermore,
the indictment’s inclusion of the fact that Ramsey “leased”
6 No. 03-3787
the mobile home in question and that he was “the lessee”
also suggest he had control over the establishment. On
balance, while we agree that the indictment was not a
model charging document, under Smith and Hernandez, it
is sufficient.1
B. Jury Instructions
Ramsey contends we should reverse his conviction for
maintaining a drug house in violation of 21 U.S.C.
§ 856(a)(2) because the district court did not properly
instruct the jury on the mens rea requirement under the
statute, despite Ramsey’s objection. In our review of jury
instructions for alleged errors of law, we reverse only if the
instructions, “viewed as a whole, misguide the jury to the
litigant’s prejudice.” United States v. Souffront, 338 F.3d
809, 834 (7th Cir. 2003); Smith, 223 F.3d at 566. We note
that as long as “the instructions treat the issues fairly
and accurately, they will not be disturbed on appeal.”
Souffront, 338 F.3d at 834 (internal citations omitted).
As noted above, Title 21 U.S.C. § 856(a)(2) provides:
it shall be unlawful to . . . manage or control any
place, whether permanently or temporarily, either
as an owner, lessee, agent, employee, occupant, or
1
Ramsey points to the Tenth Circuit’s decision in United States
v. Brown, 995 F.2d 1493 (10th Cir. 1993) to support his claim.
That case held that the government’s failure to include in the in-
dictment for a violation of § 856(a)(2) the allegation that defendant
was an owner, lessee, agent, employee or mortgagee amounted to
a failure to allege all the essential elements of the offense under
§ 856(a)(2) and hence was a jurisdictional defect requiring dismis-
sal. However, the Tenth Circuit overruled Brown in United States
v. Prentiss, 256 F.3d 971 (10th Cir. 2001), which held that such
defects in an indictment are now subject to harmless error review.
No. 03-3787 7
mortgagee, and knowingly and intentionally rent,
lease, profit from, or make available for use, with or
without compensation, the place for the purpose of
unlawfully manufacturing, storing, distributing, or
using a controlled substance.
Ramsey directs our attention to the mens rea language
“knowingly and intentionally.” However, the district judge
issued the following instruction on this point:
To sustain the charge of making available a place
for use for the purpose of distributing and possess-
ing with intent to distribute controlled substances,
as charged in Count 7 of the Indictment, the Gov-
ernment must prove: First, that the defendant
controlled, or managed as a lessee a place, to wit,
the mobile home he leased located at 2820 Calvin
Lot 20, Cahokia, Illinois. And second, that the
defendant knowingly allowed others to use said place
for the purpose of the distribution and possession
with intent to distribute crack cocaine, or remained
deliberately ignorant of it.
In other words, the district court did not include the “in-
tentionally” element in its instruction, despite Ramsey’s
objection. Further, the district court defined deliberate ig-
norance as follows:
As used in these instructions, the purpose may be
that of others. The defendant is liable if he man-
ages or controls a building that others use for an
[illicit] purpose, and he either knows of the illegal
activity or remains deliberately ignorant of it. The
illegal purpose need not be the sole or primary use
of the place in question[;] it is sufficient if it is one
of the uses in question.
Several circuits, including this one, have held that knowing
or “remaining deliberately ignorant” satisfies the knowledge
component of § 856(a)(2). See United States v. Banks, 987
8 No. 03-3787
F.2d 463, 466 (7th Cir. 1993) (“In (a)(2) the ‘purpose’ may be
that of others; the defendant is liable if he manages or
controls a building that others use for an illicit purpose, and
he either knows of the illegal activity or remains deliber-
ately ignorant of it.”); United States v. Chen, 913 F.2d 183,
192 (5th Cir. 1990) (“[W]e hold that the phrase ‘for the
purpose of’ contained in § 856(a)(2) of the statute does not
preclude a deliberate ignorance instruction for the knowl-
edge element of that subsection.”) (emphasis in original);
United States v. Tamez, 941 F.2d 770, 774 (9th Cir. 1991)
(“[Section 856] (a)(2) was intended to prohibit an owner
from providing a place for illegal conduct, and yet to escape
liability on the basis either of lack of illegal purpose, or of
deliberate ignorance . . . section 856(a)(2) requires only that
proscribed activity was present, that [the defendant] knew
of the activity and allowed that activity to continue.”) Yet, as
Ramsey points out, a deliberate indifference instruction
only goes to the statute’s knowledge requirement.
The “intentionally” element can be satisfied by the govern-
ment proving beyond a reasonable doubt that the defendant
intentionally permitted another person to use the property
at issue and that the other person used it for an illicit
purpose about which the defendant knew. See Tamez, 941
F.2d at 774 (holding that § 856(a)(2) “was intended to pro-
hibit an owner from providing a place for illegal conduct,
and yet to escape liability on the basis either of lack of
illegal purpose, or of deliberate ignorance”); United States
v. Bilis, 170 F.3d 88, 92 (1st Cir. 1999) (stating § 856(a)(2)
requires the government to prove beyond a reasonable
doubt “(1) that [the defendant] managed or controlled [the
place at issue]; (2) that [the defendant] knowingly and in-
tentionally made [the place] available for use to others; and
(3) that [the defendant] made [the place] available for the
purpose of unlawfully possessing or distributing a controlled
substance.” (emphasis added)).
Ramsey claims that he could have argued at trial he did
No. 03-3787 9
not intentionally allow his son Marrio Robinson to use the
mobile home but rather was coerced into doing so, given the
presence of Robinson’s guns. While this argument might
negate the “intentionally” component of the offense, Ramsey
did not raise it in the trial court. Nor did he offer a jury
instruction that would negate his intent to allow his son to
use his home. These arguments are therefore waived. Belom
v. Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002)
(“[A]s we have often observed, arguments not raised in the
district court are waived on appeal.”) Even if we were to
reach the issue, Ramsey admitted to the police after his
arrest that he allowed his son to live with him in the mobile
home.
In any case, “[a] court of review should proceed cautiously
when asked to set aside a jury’s verdict . . . on the ground
that the instructions contained erroneous or confusing
passages.” United States v. Goines, 988 F.2d 750, 773 (7th
Cir. 1993) (internal citations omitted). And if “it appears
beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained,” then the error was
harmless. Neder v. United States, 527 U.S. 1, 15 (1999)
(applying harmless error analysis to the district court’s fail-
ure to include an element of an offense in its instructions to
the jury). In other words, if the evidence is so strong that a
jury would have reached the same verdict absent the er-
roneous jury instruction, then the error is harmless. Goines,
988 F.2d at 773. Upon our review of the sufficiency of the
evidence detailed below, we conclude that the district court’s
failure to include in its instructions to the jury that it must
find Ramsey “knowingly and intentionally” made his leased
home available for his son’s illegal use amounted to harm-
less error beyond a reasonable doubt. Cf. Hernandez, 330
F.3d at 978-79 (finding no plain error when jury instructions
omitted the statute’s scienter requirement of “intentionally”
and only included “knowingly” when other words used in
the instructions were sufficient to convey the requisite
10 No. 03-3787
mental state).
C. Sufficiency of the Evidence
On challenges to the sufficiency of evidence, “we review
the evidence in the light most favorable to the prosecution
and will reverse a jury verdict only when the record is
devoid of any evidence, regardless of how it is weighed, from
which a jury could find the defendant guilty beyond a
reasonable doubt.” United States v. Macedo, 371 F.3d 957,
965 (7th Cir. 2004) (internal citations omitted). We note
that while an insufficiency of the evidence claim is not
impossible, “it is nevertheless a steep hill to climb.” Id.
Ramsey appeals the district court’s decision to enter judg-
ment on the jury’s guilty verdict on the charge under 21
U.S.C. § 856(a)(2), claiming that there was insufficient
evidence to support a finding that he maintained a drug
house in violation of the statute. He contends that the
government submitted no evidence demonstrating that he
acted “intentionally,” as the statute requires. As a result,
Ramsey argues, no rational jury could have found that he so
acted beyond a reasonable doubt and his conviction must be
reversed. We disagree. There was ample evidence demon-
strating that Ramsey intentionally allowed his son Marrio
Robinson to use the mobile home Ramsey leased. Ramsey
admitted to the police that he rented the trailer from his
daughter and that his son moved in with him. He also
admitted to the police that he knew Robinson dealt drugs
out of the mobile home. There was no evidence that Robin-
son coerced his father into allowing Robinson to live there.
Further, Varner (one of the persons who participated in
controlled drug buys leading to Ramsey’s and Robinson’s
arrests) testified that he bought crack cocaine from Robin-
son in a house he shared with Ramsey in Belleville, Illinois,
before they moved to the mobile home in Cahokia.
No. 03-3787 11
The other evidence submitted to the jury also supports a
finding of guilt. Varner testified that he bought crack
cocaine from the mobile home at all hours of the day and
night. Varner also testified that he had seen guns, drugs,
and a scale used to measure the drugs, all in common areas
in the trailer. Agents watching the trailer noted suspicious
activity, such as numerous cars driving up to the home and
people briefly entering and leaving the home. In addition,
crack cocaine, a scale, and guns were all found in Ramsey’s
home. The record is not devoid of evidence from which a
jury could find Ramsey guilty beyond a reasonable doubt.
D. Sentence
Ramsey argues that the district court erred in sentencing
him in violation of the Sixth Amendment when the district
court, and not a jury, made its own finding of the amount of
crack cocaine involved in Ramsey’s offense. This finding by
the district court increased Ramsey’s sentence. Recently,
the Supreme Court held that any fact, other than a defen-
dant’s prior conviction, used to increase one’s sentence must
be admitted by the defendant or found beyond a reasonable
doubt by a jury. United States v. Booker, 125 S.Ct. 738, 756
(2005).
Because Ramsey did not raise his Sixth Amendment ob-
jection in the district court, we review for plain error. “Under
[the plain error] test, before an appellate court can correct
an error not raised at trial, there must be (1) ‘error,’ (2) that
is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” United
States v. Cotton, 535 U.S. 625, 631 (2002) (quoting Johnson
v. United States, 520 U.S. 461, 466-67 (1997)). “If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputa-
tion of judicial proceedings.” Id. (quoting Johnson, 520 U.S.
at 467).
12 No. 03-3787
Enhancement of Ramsey’s sentence based on facts not
admitted by the defendant or proven to a jury beyond
reasonable doubt does, under the new Booker regime, con-
stitute error that is plain. See Paladino, 401 F.3d at 481.
The 54-month sentence Ramsey received was toward the
low end of the then-mandatory Guideline range. We are un-
able to determine whether Ramsey was prejudiced, how-
ever, because we cannot know whether the district court,
with the increased discretion permitted by Booker, would
have imposed the same sentence. Therefore, we will retain
jurisdiction of the appeal and “order a limited remand to
permit the sentencing judge to determine whether he would
(if required to resentence) reimpose his original sentence.”
Id. at 484. On remand, the district court should proceed
with the procedure we set forth in Paladino. If the district
court determines that it would have imposed the same sen-
tence, we may know for certain that Ramsey was not preju-
diced. Without a showing of prejudice, Ramsey’s plain error
challenge will fail. We will still, however, review the sentence
for reasonableness. Id. If the district judge determines that
with more discretion, the sentence would have been different,
we will vacate and remand the case for resentencing, having
predetermined that such an illegal sentence that has preju-
diced the defendant constitutes a miscarriage of justice. Id.
III. Conclusion
For the reasons stated above, we AFFIRM Ramsey’s con-
viction. While retaining jurisdiction, we order a limited
REMAND of Ramsey’s sentence in accordance with Booker,
Paladino, and this opinion. The district court is directed to
return this case to us when the limited remand has been
completed.
A true Copy:
Teste:
________________________________
No. 03-3787 13
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-18-05