United States v. Ramirez

Opinion

13-1955-cr United States v. Ramirez

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of October, two thousand fourteen.

Present: ROSEMARY S. POOLER, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges, ____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 13-1955-cr

JUAN RAMIREZ, AKA SCARFACE, AKA TONY TKO,

Defendant-Appellant. ____________________________________________________

FOR APPELLANT: Jesse Michael Siegel, Law Office of Jesse M. Siegel, New York, NY.

1 FOR APPELLEE: Michael D. Lockard & Karl Metzner, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. ____________________________________________________

Appeal from a judgment of the United States District Court for the Southern District

of New York (Robert Carter, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Juan Ramirez appeals his 2002 conviction on numerous

charges, including racketeering and racketeering conspiracy; kidnapping, murder, attempted

murder, assault, and interstate travel in aid of racketeering; conspiracy to distribute narcotics;

and robbery and conspiracy to commit robbery. In its indictment, the Government alleged

that Ramirez was the leader of the “165th St. Organization” (the “Organization”) that from

1992 to 1998 operated a car theft scheme, engaged in narcotics trafficking, and committed

various acts of murder, attempted murder, and robbery in furtherance of those endeavors.

During Ramirez’s jury trial, which lasted nearly two months, the Government introduced the

transcripts of plea allocutions given by five co-conspirators in which those co-conspirators

admitted to their involvement in various criminal acts that formed the bases of some of the

charges against Ramirez. The jury ultimately found Ramirez guilty of the above charges but

acquitted him of several others. Ramirez now argues that the admission at trial of the five

co-conspirator plea allocutions violated his right to confront the witnesses against him, as

articulated in Crawford v. Washington, 541 U.S. 36 (2004).1 We assume the parties’ familiarity

1Although we originally affirmed Ramirez’s conviction in December 2003, see United States v. Martinez, 83 F. App’x 384, 385 (2d Cir. 2003) (summary order), vacated in part by Calcano v. 2 with the underlying facts and the procedural history of the case, which we reference only as

necessary to explain our decision.

Crawford holds that the Confrontation Clause bars the “admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify, and

the defendant had had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53–

54. It is constitutional error, therefore, to admit “as substantive evidence a plea allocution by

a co-conspirator who does not testify at trial unless the co-conspirator is unavailable and

there has been a prior opportunity for cross-examination.” United States v. Riggi, 541 F.3d 94,

102 (2d Cir. 2008) (internal quotation marks omitted). Although the Government concedes

that, in the wake of Crawford, it was error to admit the five plea allocutions at Ramirez’s trial,

Ramirez did not object to their admission, and so this Court’s review is for plain error. See

id.

Plain error is “(1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008) (internal quotation marks omitted). If all

three conditions are met, this Court “may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affected the fairness, integrity, or public reputation of

[the] judicial proceedings.” Id. (internal quotation marks omitted). In this case, the

admission of the plea allocutions easily satisfies the first two conditions—the Government

United States, 543 U.S. 801 (2004), we recalled our mandate after the Supreme Court decided Crawford and directed the parties to brief any Crawford issues. Two of Ramirez’s co- defendants complied with our instructions but Ramirez did not and so we concluded that he had abandoned the Crawford issue. We again affirmed the convictions of Ramirez’s co- defendants in August 2005. In August 2013, we reinstated Ramirez’s direct appeal and gave him permission to file a Crawford brief after the district court granted his 28 U.S.C. § 2255 motion asserting that his original appellate counsel was ineffective for failing to file the Crawford brief as we had directed. 3 concedes the error and that error is “clear” and “obvious” in light of Crawford and this

Court’s decisions holding that co-conspirator plea allocutions are testimonial hearsay. Id.

(citing cases and observing that “[a]n error is plain if it is clear or obvious at the time of

appellate consideration” (internal quotation marks omitted)). The success of Ramirez’s

appeal therefore turns on the third condition of the plain error test: whether the error

affected his substantial rights. To meet this standard, he must show that the error was

“prejudicial,” meaning that “there must be a reasonable probability that the error affected

the outcome of the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010); see also Riggi, 541

F.3d at 102.2 Because we ultimately find that Ramirez does not make the required showing

on this factor, we need not address the fourth condition and determine whether to exercise

our discretion to notice the forfeited error.

The facts presented by the appeal in Riggi are similar to those that we confront here:

Riggi also involved a racketeering charge, multiple underlying conspiracies, and the pre-

Crawford admission of co-conspirator plea allocutions. See Riggi, 541 F.3d at 95–96. In Riggi,

as here, the Government introduced the plea allocutions to corroborate the testimony of

cooperating witnesses as to the existence of charged conspiracies with a broad range of

objectives. See id. at 103. Reviewing for plain error, we concluded that the admission of the

plea allocutions in that case affected the defendants’ substantial rights and required the

2 When the source of plain error is a supervening decision, we have employed a “modified plain error standard” that places the burden on the Government to prove that the error did not affect the defendant’s substantial rights. See Riggi, 541 F.3d at 102 n.3. We need not decide whether the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461 (1997), requires that we place the burden on the defendant in such cases because we find the error in this case did not affect Ramirez’s substantial rights even under our more lenient modified standard. See United States v. Lombardozzi, 491 F.3d 61, 74 n.4 (2d Cir. 2007). 4 vacatur of their convictions. See id. at 108. To reach that conclusion, we examined six

factors relevant to the circumstances of that case—the number of plea allocutions

introduced, the presence of “interlocking . . . conspiracies,” the detailed nature of the

allocutions, the ways in which the allocutions were used by the Government during its

summation, the district court’s limiting instructions, and the strength of the Government’s

other evidence. See id. at 103–08. In Ramirez’s case, however, these considerations lead us

to conclude that his substantial rights were not affected by the erroneous admission of the

allocutions. Namely, while the level of detail contained in some of the allocutions and the

use to which the Government put the allocutions in summation bear certain similarities to

the circumstances in Riggi, the remaining considerations, especially the strength of the

Government’s other evidence, preclude a determination that the admission of the allocutions

violated Ramirez’s substantial rights.

1. Allocution Details & Use of the Allocutions in Summation

In Riggi we expressed concern that the “detailed content of the plea allocutions

corresponded to the elements of [the] crimes charged against [the] defendants.” Riggi, 541

F.3d at 104. We also noted that the allocutions were “woven throughout” the

Government’s summation. Id. at 108. Of particular concern was the fact that, during its

summation, the Government: (1) reminded the jurors to consider the allocutions as evidence

that the conspiracies existed; (2) repeatedly used the allocutions to corroborate the testimony

of cooperating witnesses and bolster the credibility of those witnesses; and (3) again urged

the jury to consider the allocutions as evidence of the crimes in the last words of its

summation. See id. at 106–08.

5 Of the plea allocutions in this case, Manuel Gonzalez’s is the most detailed and

damaging to Ramirez. Although he did not name Ramirez in his allocution, Gonzalez

confirmed the existence of the Organization, stated that the Organization was headed by

“another” person, and admitted that, at the behest or direction of that “other” person, he

had “committed four acts charged as racketeering.” See Supp. App’x at 1052–53. As was the

case in Riggi, each of the “racketeering acts” listed and described by Gonzalez correspond to

four such acts charged against Ramirez, including the March 1994 murder of Felix

Rodriguez, the March 1995 conspiracy to kidnap and murder Francisco Soto, and the June

1995 attempted murder of an individual in Reading, Pennsylvania. In summation, the

Government also relied heavily upon the Gonzalez allocution and those of the other co-

conspirators. It several times read long sections of the allocutions to the jurors, repeatedly

urging them to use the allocutions as proof that the Organization existed. See, e.g., Supp.

App’x at 1220–21, 1266–67. More troublingly, it encouraged the jurors to use the

allocutions as corroborating proof that Ramirez participated in and led the Organization by

identifying him as the “other” person referenced in those allocutions. As in Riggi, the

Government’s reliance on the allocutions in summation, along with the detailed nature of

the allocutions, weigh in favor of vacatur. See Riggi, 541 F.3d at 106–08.

2. Strength of the Government’s Other Evidence

Notwithstanding the above, our consideration of the other factors relevant in Riggi

convinces us that vacatur is unwarranted in this case. The strength of the Government’s

other evidence of Ramirez’s guilt constitutes the critical difference between this case and

Riggi. Ramirez argues that the Government could not have proved the existence of a

6 racketeering “enterprise” without the challenged plea allocutions. This argument drastically

understates the strength of the Government’s other evidence on this point. “A RICO

enterprise is a group of persons associated together for a common purpose of engaging in a

course of conduct, proved by evidence of an ongoing organization, formal or informal, and

by evidence that the various associates function as a continuing unit.” United States v. Burden,

600 F.3d 204, 214 (2d Cir. 2010) (internal quotation marks omitted). This definition is very

broad:

[A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.

Boyle v. United States, 556 U.S. 938, 948 (2009).

While the Organization does not appear to be as rigidly structured as some, the live

testimony of five cooperating witnesses was more than sufficient to prove that a continuing

narcotics trafficking/car theft/armed robbery enterprise existed. With respect to the drug

distribution side of the business, the Organization had a clear, if loose, hierarchy with

Ramirez at its head. He was responsible for obtaining, either by purchase or by theft, the

powder cocaine that others “cooked” into crack cocaine and then distributed to street-level

sellers. See Supp. App’x at 101–02, 108, 332–35. Ramirez also provided protection for the

7 drug business by defending the “spot” and intimidating rival dealers. See id. at 108, 337–38,

347–49. The remaining members of the group assisted Ramirez with specific jobs, such as

robbing rival drug dealers, and received in return a cut of the proceeds. Id. at 603–04, 611,

614–15, 1009–10, 1019–20.

The live testimony at trial further demonstrated that the car theft side of the

operation had a structure similar to that of the narcotics business—Ramirez was in charge of

the operation, generally planned the heists, and stored stolen car parts in his basement. See

Supp. App’x at 764, 957, 965. The Organization had a number of techniques it regularly

employed to carry out the car thefts, including the use of walkie-talkies, decoy cars, and

lookouts. Id. at 755, 760–61, 960–61. Members of the group would take orders for

particular car parts from potential buyers and pass those orders along to Ramirez, who then

organized the theft of specific cars to fill those orders. See id. at 667, 756, 957. The payment

structure of the car theft ring was similar to the narcotics business—those who participated

in a given theft would take a cut of the proceeds. Id. at 762. Finally, core members of the

group participated both in the car thefts and in the armed robberies undertaken to further

the narcotics distribution business. See id. at 614–15, 667, 961–65, 1019–20.3 Several police

and civilian witnesses corroborated the existence and general tactics of the car theft ring.

For example, a police officer testified that he arrested Ramirez and Gonzalez in January 1996

as they attempted to steal a parked car and, after the arrest, recovered a two-way radio from

Ramirez. See id. at 878–83; see also id. at 921–23 (testimony of employee of a business that

3 The same general cast of characters participated in many of the charged racketeering acts, including the Felix Rodriguez murder, see Supp. App’x at 437–38, 663–66, 993-95, the Soto kidnapping and murder, see id. at 140–42, 369, 623–25, and the Reading attempted murder, see id. at 403–07, 653–57, 782–84. 8 bought stolen parts), 1107–08, 1133–34 (Ramirez’s testimony in defense admitting to being a

“car thief” and that he and others, including Gonzalez, “st[ole] cars together”).

The above is strong evidence that a continuing enterprise existed and that Ramirez

was its leader. See, e.g., Burden, 600 F.3d at 214–15 (enterprise found where a group had: (1)

“multiple members” with the shared purpose of selling drugs; (2) a defined “meeting place”;

(3) a hierarchical structure with one head man who controlled the flow of drugs and

organized acts of violence; and (4) the group conducted acts of retaliation upon those who

threatened the business); United States v. Jones, 482 F.3d 60, 69–70 (2d Cir. 2006) (sufficient

evidence that the defendant ran a drug-selling enterprise where he provided the drugs for

sale, enforced the group’s “exclusive control” over an area, and directed a number of

“lieutenants”). Ramirez’s argument that the plea allocutions were the Government’s “only

evidence” as to the existence of the racketeering enterprise is unpersuasive.

Similarly, the Government’s case with respect to the remaining conspiracies (the Felix

Rodriguez murder, the Soto kidnap and murder, and the Reading attempted murder), was

based on the above-referenced testimony of the various cooperating witnesses, bolstered by

the testimony of numerous other non-cooperating civilian witnesses, investigating officers,

and medical examiners. See Supp. App’x at 15–21 (testimony describing physical evidence

seized from Ramirez’s apartment), 34–37 (eyewitness testimony detailing Soto’s abduction),

305–11 (medical examiner testimony regarding the Soto and Rodriguez murders), 810–12

(eyewitness testimony regarding Rodriguez murder), 944–48 (testimony regarding the

discovery of an abandoned blue van registered to Ramirez’s father the day after Soto’s

murder). The challenged plea allocutions are wholly cumulative of this extensive other

9 evidence. Indeed, we have already held when addressing the Crawford appeals of Ramirez’s

co-defendants that the information contained in the plea allocutions relating to the Soto

kidnap and murder and the Reading attempted murder was independently corroborated, and

that any inconsistencies in the cooperating witness testimony were minor. See United States v.

Martinez, No. 02-1080, slip op. at 5, 7 (2d Cir. Aug. 15, 2005) (unpublished summary order).

In Riggi, by contrast, the cooperating witness testimony “contained inconsistencies and

contradictions” and the Government itself “betrayed anxiety about the persuasiveness” of

some of its physical evidence. 541 F.3d at 105. Given the weight of the Government’s

other evidence against Ramirez, we conclude that the introduction of the plea allocutions did

not affect his substantial rights.

3. Remaining Riggi Considerations

This conclusion is also supported by the three other factors considered in Riggi. First,

as Riggi suggests, prejudice may be indicated merely by the number of plea allocutions

introduced at trial. See Riggi, 541 F.3d at 103. Here, however, fewer allocutions (five) were

admitted than in Riggi, where the jury heard eight. Moreover, two of the five plea allocutions

admitted here related to a charge of which Ramirez was acquitted: a May 1994 robbery of an

AIDS clinic in the Bronx. This observation reduces the pool of potentially prejudicial

allocutions to three. Finally, those three allocutions were presented over the course of a

seven-week-long trial, whereas in Riggi the eight relevant allocutions played a role in a trial

that ran half as long. The lesser number of prejudicial allocutions and their introduction

over the course of a much longer trial suggests that the allocutions in this case were less

likely to have been prejudicial than those introduced in Riggi.

10 Second, in Riggi we expressed concern that many of the charged conspiracies

“overlapp[ed]” such that the introduction of plea allocutions confirming the existence of one

conspiracy “naturally reinforced the evidence of the others, creating an echo chamber of

implied guilt.” Id. at 103–04. Here, the charged conspiracies discussed in the plea

allocutions did not so overlap. Rather than being related, each conspiracy in this case was

born of a separate motive—Felix Rodriguez was murdered because he had once kidnapped

Ramirez, the plot to kidnap and murder Francisco Soto was hatched because he was a drug

courier thought to be in possession of a large quantity of cocaine, and the Organization

unsuccessfully attempted to murder the individual in Reading, Pennsylvania because he had

stolen the group’s drugs. Moreover, there is no evidence that the victims in the three

conspiracies had any relationship—Soto was not kidnapped and murdered because he knew

something about or was involved in the earlier Rodriguez murder, nor was the Reading

individual affiliated with Soto. Contra Riggi, 541 F.3d at 103–04. Thus, while each of the

conspiracies involved some of the same actors, the disparate motives and victims weigh

against a conclusion that the plea allocutions “confirming the existence of one of the . . .

conspiracies naturally reinforced the evidence of the others.” Id. at 104.

Finally, in its jury instructions, the district court informed the jurors that they could

consider the plea allocutions in regard to the existence of the charged conspiracies and the

involvement of the makers of the statements in the alleged conspiracies. See Supp. App’x at

1353–54. The court cautioned the jury that, should it conclude the conspiracies existed, it

“must decide as a separate question whether [each] defendant . . . was part of each alleged

conspiracy based entirely on other evidence in the case.” Id. at 1354. In Riggi, we found

11 similar cautionary instructions insufficient to “inoculate[] against the error” because there

was an exact “correlation” between the counts of conviction and the counts for which the

allocutions were offered, i.e. the jury convicted the defendants on the counts supported by

plea allocutions and acquitted them on all others. See Riggi, 541 F.3d at 104-05 (internal

quotation marks omitted).

Here, there is no such congruence. As noted above, the jury acquitted Ramirez of

three counts involving a May 1994 robbery of an AIDS clinic, which was the subject of two

plea allocutions. In addition, the jury convicted Ramirez on counts unsupported by plea

allocutions. For example, Counts Thirteen and Fourteen of the indictment charged Ramirez

with robbery and conspiracy to commit robbery based on a 1994 robbery of a drug dealer’s

apartment, while Count Twenty-One charged him with use of a firearm in connection with a

January 1995 attempted murder. See App’x at 57, 60, 70. None of the plea allocutions

referred to the subject matter of these counts, but the jury nonetheless convicted Ramirez of

the charges. Rather than suggesting that the jury was “unable to follow the court’s

instructions,” see Riggi, 541 F.3d at 104–05, the above indicates that the jury heeded the

instructions and that the allocutions did not have an overwhelming influence on the jury’s

decision. Cf. United States v. Reifler, 446 F.3d 65, 90 (2d Cir. 2006) (finding Crawford error

harmless given the “discerning nature of the verdicts” and the jury’s “differentiation”

between defendants and evidence).

For all of these reasons we conclude that the erroneous admission of the plea

allocutions did not affect Ramirez’s substantial rights, and their admission did not constitute

plain error. We have considered all of Ramirez’s remaining arguments, including those

12 contained in his supplemental pro se brief, and have concluded that they are without merit.

We AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk