Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-9-2007
USA v. Ramsey
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4223
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4223
UNITED STATES OF AMERICA
v.
BRIAN RAMSEY,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00049)
District Judge: Honorable Terrence F. McVerry
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2007
Before: RENDELL, WEIS and NYGAARD, Circuit Judges.
(Filed November 9, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Brian Ramsey appeals from the sentence of 71 months of incarceration imposed
by the District Court after a jury found Ramsey guilty of violating the Racketeer
Influenced and Corrupt Organizations (RICO) Act and conspiracy to commit a RICO Act
violation, under 18 U.S.C. § 1962(c) & 1962(d) respectively, and filing false income tax
returns, in violation of 26 U.S.C. § 7206(1). Ramsey raises four arguments on appeal.
First, Ramsey asserts that the evidence was insufficient as a matter of law to sustain a
conviction for violation of the RICO Act. Second, he contends that the District Court
improperly applied a preponderance of the evidence standard to the proof of facts in
determining the proper Sentencing Guideline range. Third, he argues that this sentence is
presumptively unreasonable. Finally, Ramsey asserts that the District Court erred by
failing to grant a mistrial after it issued an allegedly improper instruction to the jury. For
the reasons that follow, we will uphold the jury’s verdict and affirm the sentence imposed
by the District Court.
I.
From 1995 to 2000, Ramsey engaged in a scheme to defraud his employer
Allegheny Power. During this time period, Ramsey worked as a “team leader” within the
building services department of Allegheny Power. This position allowed Ramsey to
approve inflated bills submitted by contracting companies owned by his co-conspirators,
Thomas and Susan Burtoft and Mark Marsula, accepting bribes in return. Ramsey
approved invoices from the Burtofts, who over-billed Allegheny Power approximately
$200,741, and from Marsula, who over-billed Allegheny Power approximately $295,000.
On August 23, 2005, a grand jury returned a superceding indictment charging
Ramsey with RICO Act, mail fraud, and tax reporting violations. Specifically, Count
One charged Ramsey with receiving bribes on 62 occasions in violation of 18 U.S.C.
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§1962(c). Count Two charged conspiracy to commit a RICO Act violation under 18
U.S.C. §1962(d). Counts Three though Ten charged Ramsey with committing various
acts of mail fraud in violation of 18 U.S.C. §§1341, 1346. In Counts Eleven, Twelve, and
Thirteen, Ramsey was charged with filing false income tax returns in violation of 26
U.S.C. §7206(1).
Ramsey was tried by a jury and found guilty on Counts One through Seven,
Eleven, and Thirteen. Despite finding that Ramsey violated the RICO Act, the jury
determined that only two of the sixty-two RICO acts which the government alleged
Ramsey committed had been proven beyond a reasonable doubt. These two acts occurred
within three months of one another. On September 13, 2006, the District Court sentenced
Ramsey to a period of 72 months’ imprisonment.
II.
Ramsey raises four arguments on appeal. First, Ramsey argues that there is
insufficient evidence as a matter of law to convict him of Count One, because the jury
only found two RICO acts, occurring within a three-month period, beyond a reasonable
doubt. Ramsey asserts that the government consequently did not prove beyond a
reasonable doubt that he participated in “a pattern of racketeering activity” as required by
18 U.S.C. §1962(c). A pattern of racketeering activity is defined by 18 U.S.C. § 1961(5)
as “at least two acts of racketeering activity, one of which occurred after the effective date
of this chapter and the last of which occurred within ten years (excluding any period of
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imprisonment) after the commission of a prior act of racketeering activity.”
The Supreme Court addressed what constitutes a pattern of racketeering activity in
H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). In H.J., the Supreme
Court stated that “to prove a pattern of racketeering activity a plaintiff or prosecutor must
show that the racketeering predicates are related, and that they amount to or pose a threat
of continued continuity.” Id. at 239 (emphasis in original). The Court defined continuity
as “both a closed- and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of
repetition.” Id. at 241.
Ramsey challenges the continuity aspect. Ramsey relies upon United States v.
Pelullo, 964 F.2d 193, 207-10 (3d Cir. 1992), to support his argument that offenses
occurring within three months cannot constitute a pattern of racketeering. In Pelullo, we
held that RICO offenses occurring over one year or less do not constitute a pattern of
racketeering when no threat of continued activity exists. Id. Ramsey’s argument,
however, ignores both this Court’s and the Supreme Court’s instruction that a pattern of
racketeering activity can also be proven by showing a threat of continued activity.
We have stated that “threatened criminal conduct could be established by a
showing that the conduct was an ‘ongoing entity’s regular way of doing business.’”
Hindes v. Castle, 937 F.2d 868, 872 (3d Cir. 1991) (quoting H.J., Inc., 492 U.S. at 242-
43). Although here the jury did not find the government had proven 60 of the 62 specific
acts enumerated in Count One, there was ample evidence on the record to support the
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jury’s finding of a racketeering scheme predicated on a threat of continued activity, i.e., a
threat of continued solicitation of bribes. Despite the jury’s failure to find beyond a
reasonable doubt all of the alleged offense conduct involving Ramsey and his co-
conspirators, the jury still found Ramsey guilty of conspiracy to commit racketeering with
those co-conspirators, as described in Count Two. This indicates that the jury found
Ramsey guilty of, at a minimum, the threat of engaging in racketeering acts with his co-
defendants, even though they did not find the 60 acts in Count One to be proven.
Considering the totality of the circumstances, viewed in the light most favorable to the
verdict, there is ample proof on the record to uphold a reasonable jury’s finding of guilt.
Ramsey’s argument, therefore, fails.
Ramsey next argues that the District Court erred when, in crafting his sentence, it
considered facts not proven beyond a reasonable doubt. His argument is foreclosed by
this Court’s decision in United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007). In
Grier, this Court held that the proper standard of proof for facts affecting sentencing was
the preponderance of the evidence. Id. The District Court, therefore, applied the proper
standard of proof.
In his third argument, Ramsey claims that his 72-month sentence is presumptively
unreasonable primarily because it is greater than the sentence of co-defendants who pled
guilty pursuant to cooperation agreements. This Court has stated that “a criminal
defendant has no constitutional right to be given a sentence equal in duration to that of his
or her co-defendants.” United States v. Parker, 462 F.3d 273, 274 (3d Cir. 2006) (quoting
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United States v. Hart, 273 F.3d 363, 379 (3d Cir. 2001)). The aim of § 3553(a)(6) “was
to promote national uniformity in sentencing rather than uniformity among defendants in
the same case.” Parker, 462 F.3d at 277. The record establishes District Court properly
evaluated the § 3553(a) factors and “reasonably applied” those factors to the
“circumstances of [the] case.” Id. at 274. The District Court also reduced the sentence in
order to lessen the disparity between Ramsey and his co-defendants.
Ramsey also argues that his sentence is unreasonable because the District Court
failed to take into consideration his low likelihood of recidivism. This argument fails
because Ramsey’s Criminal History Category of I already takes a low rate of recidivism
into account. See U.S.S.G. Ch. 4, Pt. A, intro. comment (explaining that the Guidelines
take into account the likelihood of recidivism in the computation of the Criminal History
Category). Thus, Ramsey’s argument that his sentence was unreasonable fails on all
accounts.
Finally, Ramsey challenges the entirety of his conviction based on the claim that
the District Court improperly used an Allen charge in its supplemental instructions.
Ramsey argues that the District Court’s supplemental jury instruction was improper
because it commented on the quality of the government’s evidence. Ramsey points to a
specific passage in which the Court stated that “there appears to be no reason to believe
that the case could ever be submitted to 12 people more conscientious, more impartial, or
more competent to decide it, or that more or clearer evidence could be produced.”
Ramsey argues that, because he did not present any evidence in his defense, this language
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comments on the quality of the government’s evidence. Ramsey provides no legal
support for his position. From an examination of the instruction in its entirety, it is clear
that District Court did not comment on the quality of the evidence presented and that the
instruction was entirely void of coercive language. Also, the instruction mirrored the
language that this Court recommended in United States v. Fioravanti, 412 F.2d 407, 419
(3d Cir. 1969). Therefore, Ramsey’s argument that the instruction was improper fails.
III.
For the foregoing reasons, we will affirm Ramsey’s conviction and the sentence
imposed in the Judgment and Commitment Order of the District Court.
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