FILED
United States Court of Appeals
Tenth Circuit
February 11, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-3224
v. D. Kansas
FREDERICO RAMSEY, (D.C. No. 2:09-CR-20046-CM-4)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and HARTZ, Circuit Judges.
I. Introduction
A federal jury convicted Defendant Federico Ramsey on one count of
conspiracy to distribute and possess with intent to distribute heroin, and three
counts of distribution and possession with intent to distribute heroin. He was
sentenced to 292 months’ imprisonment. In this appeal, he argues the district
court erred by refusing to sever his trial from that of his codefendant, Verdale
Handy, and by denying his Batson challenge. See Batson v. Kentucky, 476 U.S.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
79 (1986). He also argues the Government’s evidence was insufficient to sustain
the conspiracy conviction and one of the convictions for possession with intent to
distribute heroin.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the
district court’s rulings and Ramsey’s convictions.
II. Background
Ramsey and Handy were charged in a multi-count indictment with criminal
activity relating to their alleged involvement in a conspiracy to distribute heroin.
Prior to the commencement of jury selection, Ramsey moved to sever his trial
from that of his codefendants. 1 In support, he argued the jury would not be
capable of “making an individualized assessment” of his guilt because he was
charged only as a “minor player” in the heroin conspiracy. The Government
opposed the motion and the district court denied it.
During voir dire, the Government used a peremptory challenge to strike an
African American member of the venire. Handy raised a timely Batson objection
and Ramsey joined that objection. See Batson, 476 U.S. at 89 (holding the Equal
Protection Clause prohibits the prosecution from exercising a peremptory
challenge to exclude a prospective juror because of the juror’s race). The district
1
At the time Ramsey filed his motion, there were eight codefendants
including Ramsey. Of those eight individuals, only Ramsey and Handy did not
enter into plea agreements with the Government before trial.
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court overruled the Batson challenge, concluding Handy and Ramsey failed to
demonstrate that the Government’s proffered reasons for striking the juror were a
pretext for racial discrimination.
After the jury returned the guilty verdicts, Ramsey sought a new trial,
arguing the district court erred by refusing to sever his trial from that of his
codefendant, Handy. In support, he argued trial evidence relating to Handy’s
attempt to murder a witness was inflammatory and prejudiced his right to a fair
trial because he was not charged with any offense related to that conduct. The
district court denied this request, concluding the evidence relating to the
attempted murder did not unfairly prejudice Ramsey and any potential prejudice
was corrected by the jury instructions.
III. Discussion
A. Motion to Sever
On appeal, Ramsey first argues the district court erred by refusing to sever
his trial from Handy’s trial. Although “there is a preference in the federal system
for joint trials of defendants who are indicted together,” Zafiro v. United States,
506 U.S. 534, 537 (1993), Rule 14(a) of the Federal Rules of Criminal Procedure
permits a district court to sever the trial of a codefendant if joinder “appears to
prejudice a defendant or the government.” This court reviews the denial of a
motion to sever for abuse of discretion. United States v. Colonna, 360 F.3d 1169,
1177 (10th Cir. 2004). To establish an abuse of discretion, Ramsey must meet a
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heavy burden of showing that “actual prejudice” resulted from the denial of his
motion. United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009).
Prejudice occurs when there “is a serious risk that a joint trial [will] compromise
a specific trial right . . . or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro, 506 U.S. at 539. Ramsey must also overcome
the presumption in a conspiracy trial that coconspirators charged together should
be tried together. United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005).
Ramsey, admittedly a low-level member of the conspiracy, argues he has
shown prejudice because the great weight of the evidence introduced during trial
was inapplicable to the charges against him. Specifically, he focuses on trial
testimony that codefendant Handy attempted to murder an individual he believed
was a “snitch” and evidence two individuals died after using heroin sold to them
by other members of the conspiracy. Ramsey asserts he was not involved in any
of these incidents but the admission of the evidence relating to them diminished
his right to a fair trial by prejudicing the jury against him.
The Government is correct that Ramsey cannot establish prejudice merely
by showing there was “a negative spill-over effect from damaging evidence
presented against” Handy or that he was less culpable than Handy. United States
v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995). Ramsey’s argument goes a step
further, however, and encompasses the assertion he was prejudiced because the
bulk of the evidence presented at trial would not have been admissible if he had
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been tried alone. While there is some appeal to this argument as a general
proposition, Ramsey’s argument fails because he has not shown the evidence
would be inadmissible to prove the conspiracy charge against him if he had been
tried alone.
Overt acts taken in furtherance of a conspiracy are admissible against all
coconspirators as evidence of the conspiracy. See United States v. Scott, 37 F.3d
1564, 1581 (10th Cir. 1994). There was testimony Handy shot Henry Nelson
because he and one of the coconspirators believed Nelson was the “snitch” who
was providing information to the police about the conspiracy. Additionally, the
evidence linking Handy to the Nelson shooting included testimony Ramsey was
present during a meeting at which the coconspirators discussed the possibility a
member of the conspiracy was cooperating with the police. Ramsey does not
make any colorable argument that he withdrew from the conspiracy before Handy
shot Nelson or that the shooting was not undertaken in furtherance of the
conspiracy. See United States v. Randall, 661 F.3d 1291, 1295-96 (10th Cir.
2011) (holding a conspirator can withdraw from a conspiracy by either: (1)
“giv[ing] authorities information with sufficient particularity to enable the
authorities to take some action to end the conspiracy,” or (2) “communicat[ing]
his withdrawal directly to his coconspirators in a manner that reasonably and
effectively notifies the conspirators that he will no longer be included in the
conspiracy . . . in any way”). Thus, testimony relating to the shooting was
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admissible against Ramsey as evidence of the conspiracy. The evidence that
customers of the conspiracy died after using heroin provided by the conspiracy
was also admissible against Ramsey because the overt acts of the other
coconspirators in providing that heroin were undertaken in furtherance of the
conspiracy. Further, even if the sales were made before Ramsey joined the
conspiracy, “a defendant who joins an ongoing conspiracy may be held
accountable—for purposes of determining the scope of liability for the conspiracy
charge itself—with the acts or statements of coconspirators that occurred prior to
his entry into the conspiracy, if those acts or statements were in furtherance of the
conspiracy.” United States v. Hamilton, 587 F.3d 1199, 1207 (10th Cir. 2009).
Ramsey’s prejudice argument fails for another reason. The Government
does not seriously dispute that Ramsey and Handy had “markedly different
degrees of culpability,” and concedes there is an increased risk of prejudice from
a joint trial under such circumstances. See Zafiro, 506 U.S. at 539. The Supreme
Court, however, has held “limiting instructions often will suffice to cure any risk
of prejudice.” Id. Here, the jury instructions contained an appropriate limiting
instruction, advising the jury as follows:
A separate crime is charged against one or more of the defendants in
each count of the indictment. You must separately consider the
evidence against each defendant on each count and return a separate
verdict for each defendant. Your verdict as to any one defendant or
count, whether it is guilty or not guilty, should not influence your
verdict as to any other defendant or counts.
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Ramsey has not pointed to anything in the record indicating the jury did not
follow these instructions. To the contrary, the jury’s verdict, which contains
specific findings as to the drug quantities attributable to Ramsey, indicates the
jury was able to compartmentalize the evidence against the two codefendants.
For all these reasons, Ramsey has not met his burden of showing that actual
prejudice resulted from being tried jointly with Handy. Accordingly, we conclude
the district court did not abuse its discretion when it denied his request for
severance.
B. Batson Challenge
Ramsey next challenges the district court’s denial of his Batson challenge.
In support, he presents materially the same arguments challenging the credibility
of the prosecutor that this court considered and rejected in Handy’s direct
criminal appeal. United States v. Handy, No. 11-3246, 2012 WL 6062658 (10th
Cir. Dec. 7, 2012) (unpublished disposition). For the same reasons articulated
fully in Handy, we conclude the district court did not clearly err when it denied
the Batson objection. Id. at *2-*4.
C. Sufficiency of the Evidence
The final issue advanced by Ramsey is a challenge to the sufficiency of the
evidence supporting his conviction for conspiracy to distribute heroin and one of
his convictions for possession with intent to distribute heroin. This court reviews
de novo whether the Government presented sufficient evidence to support a
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conviction. United States v. Winder, 557 F.3d 1129, 1137 (10th Cir. 2009). We
must determine whether a reasonable jury could find the defendant guilty beyond
a reasonable doubt after considering all the evidence, including any reasonable
inferences that may be drawn therefrom, in the light most favorable to the
Government. Id. We do not re-weigh the evidence presented to the jury or assess
witness credibility. Id.
To prove a conspiracy charge, the Government is required to show “(1) that
two or more persons agreed to violate the law, (2) that the defendant knew at least
the essential objectives of the conspiracy, (3) that the defendant knowingly and
voluntarily became a part of it, and (4) that the alleged coconspirators were
interdependent.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007)
(quotation and alteration omitted). Ramsey’s challenge is confined to an
assertion the Government failed to prove two of these four elements—agreement
and interdependence. After reviewing the record, we reject his argument because
a rational jury could have found these two elements were proved beyond a
reasonable doubt from the evidence presented at trial.
The agreement element can be proved with circumstantial evidence of even
an informal agreement. United States v. Lang, 364 F.3d 1210, 1223 (10th Cir.
2004). The Government points to ample evidence supporting the agreement
element of the conspiracy charge, including the testimony of coconspirator
Nelson. According to Nelson, Ramsey received supplies of heroin from Handy on
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credit and was given a “cut” of the proceeds after the drugs were sold. The
amount of the payments to Ramsey were set by Handy. Ramsey distributed the
heroin from two properties owned or rented by Handy. Nelson also testified that
he drove Ramsey to these properties to distribute the heroin because Ramsey did
not own a car. There was also testimony that Handy hired Ramsey to distribute
heroin because he wanted to limit Nelson’s street exposure.
Trial testimony also supports the proposition that Ramsey sold heroin for
the conspiracy over a period of several months, indicating his association was not
fleeting. Government witness Rachel Teasley testified she purchased heroin from
Ramsey approximately 100 times. Deputy Justin Branner testified that he made a
controlled buy from Ramsey on November 4, 2008, and again on January 12,
2009. Nelson testified that Ramsey distributed heroin for the conspiracy over a
period of two to three months.
This evidence, taken as a whole, shows more than “mere association” with
the other conspirators. Based on the evidence, a reasonable jury could find that
Ramsey agreed to distribute heroin on behalf of the conspiracy.
Much of the same evidence supporting the agreement element of the
conspiracy charge is relevant to the interdependence element. “Interdependence
is present if the activities of a defendant charged with conspiracy facilitated the
endeavors of other alleged coconspirators or facilitated the venture as a whole.”
United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009) (quotation
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omitted). The evidence shows Ramsey sold heroin and collected payment on
behalf of the conspiracy. Further, he was hired to minimize the street exposure of
Nelson in an effort to limit the possibility the police would become aware of the
activities of the conspiracy. These acts facilitated the venture as a whole and
indicate Ramsey had a vital role in the overall conspiracy even if his participation
was minor. Thus, the evidence fully supports the jury’s finding on
interdependence.
Ramsey also argues the evidence was insufficient to sustain one of his
convictions for possession with intent to distribute heroin. This charge was based
on drugs seized during a search of a residence located at 5915 Cernech Road in
Kansas City, on January 14, 2009. At the time of the search, Ramsey was present
in the residence with Nelson. When officers executed the warrant, they
discovered Nelson attempting to flush heroin capsules down the toilet. Ramsey
was discovered in the living room. To prove the charge against Ramsey, the
Government was required to show Ramsey knowingly possessed the drugs found
in the residence and had the specific intent to distribute them. United States v.
Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005). The conviction can be based on a
finding of either actual or constructive possession. United States v. McKissick,
204 F.3d 1282, 1291 (10th Cir. 2000). Even assuming the evidence was not
sufficient to establish actual possession, it was sufficient to establish constructive
possession.
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“To prove constructive possession, the government must present evidence
establishing some nexus, link, or other connection between the defendant and the
contraband.” Cardinas-Garcia, 596 F.3d 788, 794 (10th Cir. 2010) (quotation
omitted). If an item is found on a premises jointly occupied by the defendant and
other individuals, the Government can show constructive possession by presenting
evidence that “plausibly supports the inference that the defendant had knowledge
of and access to the contraband.” United States v. Bagby, 696 F.3d 1074, 1081
(10th Cir. 2012) (quotation and alteration omitted). Ramsey argues the
Government did not present any evidence linking him to the heroin found during
the search other than his “mere presence at the scene.” The Government’s
evidence, however, included testimony that an undercover officer purchased
heroin from Ramsey on two occasions. Both purchases were made at the Cernech
residence and one took place less than forty-eight hours before the search warrant
was executed. This evidence amply supports the proposition that Ramsey knew
heroin was stored at, and distributed from, the Cernech location. It also shows
that Ramsey had access to the heroin at the residence. Additionally, some of the
heroin seized during the search was found on the floor of the living room—the
room in which officers located Ramsey. This evidence, including all the
reasonable inferences that can be drawn from it, was sufficient to support the
jury’s finding that Ramsey possessed the heroin discovered during the search with
the intent to distribute it.
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IV. Conclusion
Ramsey’s convictions are affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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