20-4275-cr United States v. Ramos

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 17th day of May, two thousand twenty-two. 4 5 PRESENT: 1 BARRINGTON D. PARKER, 2 MICHAEL H. PARK, 3 EUNICE C. LEE, 4 Circuit Judges. 1 _______________________________________ 2 3 UNITED STATES OF AMERICA, 4 5 Appellee, 6 7 v. 20-4275 8 9 GREGORY RAMOS, a/k/a PROSPECT, 10 11 Defendant-Appellant. 12 _______________________________________ 13 14 15 FOR DEFENDANT-APPELLANT: HERBERT L. GREENMAN, Lipsitz Green 16 Scime Cambria LLP, Buffalo, NY. 17 18 FOR APPELLEE: MONICA J. RICHARDS, for Trini E. Ross, 19 United States Attorney for the Western 20 District of New York, Buffalo, NY.

1

2 3 Appeal from a judgment of the United States District Court for the Western District of New

4 York (Vilardo, J.).

5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

6 DECREED that the judgment of the district court is AFFIRMED.

7 On August 23, 2016, the grand jury returned an indictment charging Defendant Gregory

8 Ramos with four counts: (1) possession with intent to distribute cocaine base, 21 U.S.C.

9 § 841(b)(1)(C); (2) possession with intent to distribute cocaine,

(b)(1)(C); (3)

10 unlawful possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.

11 § 924(c)(1)(A)(i); and (4) unlawful possession of a firearm by a person subject to a domestic

12 violence order of protection,

(g)(8).

13 For count 1, the government’s theory at trial was that on August 14, 2015, Ramos led police

14 on a high-speed chase in Buffalo, New York, during which he threw baggies containing cocaine

15 base, heroin, and butyryl fentanyl from his vehicle. 1 As to counts 2–4, the government proffered

16 evidence showing that on May 23, 2016, Ramos led police officers on another high-speed chase

17 through the City of Niagara Falls. During the chase, Ramos threw a bag with ammunition and a

18 loaded gun out of the car, which law enforcement later recovered. He also threw a second bag

19 out of the car containing an unknown quantity of white powder, which dissipated after hitting a

20 pursuing police vehicle. Ramos was eventually arrested with two cell phones and $3,640 in cash

21 on his person. Police also searched Ramos’s vehicle and recovered a small amount of cocaine

22 coating the interior of the vehicle as well as a digital scale with white residue, 200 plastic vials, an

23 additional $804 in cash, and two tablet computers and a phone containing messages related to drug

24 trafficking.

1 Ramos was not charged with the heroin and butyryl fentanyl conduct.

2 25 A jury found Ramos not guilty of count 1 and guilty on counts 2–4. Ramos filed two sets

26 of post-trial Rule 29 and Rule 33 motions, which the district court denied. Ramos timely appealed

27 and now raises the same arguments he made in his post-trial motions. We assume the parties’

28 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

29 Ramos raises five arguments on appeal, all of which are meritless. First, Ramos argues

30 that there was insufficient evidence to convict him of possession of cocaine with intent to distribute

31 or possession of a firearm in furtherance of a drug trafficking crime. As to count 2, Ramos argues

32 that the small amount of cocaine recovered (0.56 grams) raises “no inference of an intent to

33 distribute.” Appellant’s Br. at 30. But, “view[ing] the evidence in the light most favorable to

34 the government, [and] drawing all inferences in the government’s favor,” United States v. Alston,

35

(2d Cir. 2018) (citation omitted), the circumstantial evidence was sufficient for

36 a rational jury to have found that (1) the reason a small amount of cocaine was recovered was

37 because Ramos discarded the cocaine during the police pursuit, and (2) he intended to distribute

38 the discarded cocaine. Ramos was found with multiple cell phones and over $3,000 in cash on

39 his person, and his car contained a scale with white residue, plastic vials consistent with those used

40 to distribute drugs, and multiple electronic devices with messages related to drug trafficking.

41 Moreover, the fact that Ramos discarded the bag with white powder while being chased by the

42 police shows consciousness of guilt.

43 As to count 3, Ramos argues that there was no nexus between the firearm and the drug

44 trafficking crime. But there was sufficient evidence for the jury to convict Ramos on the firearm

45 count. “[A] drug dealer may be punished under [18 U.S.C.] § 924(c)(1)(A) where the charged

46 weapon is readily accessible to protect drugs, drug proceeds, or the drug dealer himself.” United

47 States v. Snow,

, 62–63 (2d Cir. 2006). Determining whether a firearm was used as

3 48 protection for drug-dealing activity is a fact-intensive question.

. Here, before Ramos

49 discarded the firearm, it was loaded and located in his vehicle, which contained drugs, drug

50 proceeds, and drug paraphernalia. There was thus sufficient evidence that Ramos’s possession of

51 the firearm “facilitated or advanced the instant drug trafficking offense by protecting himself, his

52 drugs, and his business.”

(cleaned up); see also

(concluding there was sufficient evidence

53 for a conviction under

(c)(1)(A) where loaded handguns were found in the

54 bedroom where drugs were packaged and stored for sale and in close proximity to drug

55 paraphernalia, trace amounts of illegal narcotics, and drug proceeds).

56 Second, Ramos raises 19 instances of defense counsel allegedly providing him with

57 ineffective assistance of counsel. We affirm the district court’s finding that Ramos failed to show

58 that he was prejudiced by these various errors. In his brief, Ramos states only that “all of the

59 examples listed above were injurious to the defense” and does not explain how any specific

60 example prejudiced him. Appellant’s Br. at 38. For instance, Ramos argues that defense counsel

61 was deficient for opening the door to testimony about drug-related messages on his Facebook

62 account and for failing to investigate whether his Facebook account actually contained those

63 messages. But Ramos fails to explain how he was prejudiced by these alleged shortcomings when

64 the same witness that testified about the Facebook messages also testified about drug-related text

65 messages—unrelated to his Facebook account—that were on Ramos’s phone. In light of the

66 strong evidence against Ramos presented at trial, we conclude that Ramos did not show that “there

67 is a reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of the

68 proceeding would have been different.” United States v. DiTomasso,

(2d Cir.

69 2019) (citation omitted).

4 70 Third, Ramos argues that the district court abused its discretion by admitting the testimony

71 of two government witnesses, Officer Cory Higgins and Agent James McHugh, because their

72 expert testimony was not beyond the ken of the jury. We disagree. This Court has previously

73 affirmed the admission of Agent McHugh’s expert testimony regarding “the kinds of paraphernalia

74 or tools that are typically found in the possession of people who are distributing narcotics.” 2

75 United States v. Willis,

, 185–86 (2d Cir. 2021); see also United States v. Tutino, 883

, 1134 (2d Cir. 1989) (“This Court has repeatedly held that the operation of narcotics

77 dealers are a proper subject for expert testimony under Fed. R. Evid. 702.” (cleaned up)). As for

78 Officer Higgins—who testified as a lay witness—Ramos argues that he improperly veered into

79 expert testimony and that this expert testimony was not beyond the ken of the jury. Although this

80 Court has expressed concern when law enforcement officials testify as both fact and expert

81 witnesses, see United States v. Dukagjini,

, 53–54 (2d Cir. 2003), even assuming

82 portions of Officer Higgins’s testimony were improper, “[t]he inadmissible aspects of [Higgins’s]

83 testimony, viewed in relation to the prosecution’s formidable array of admissible evidence, was

84 merely corroborative and cumulative,”

.

85 Fourth, Ramos contends that the government committed prosecutorial misconduct in its

86 summation by shifting the burden of proof, vouching for witnesses’ credibility, putting at issue the

87 prosecutor’s own credibility, and suggesting that defense counsel did not believe its own case.

2 Ramos also argues in passing that Agent McHugh did not provide information about the experience that provided the basis for his testimony and that McHugh’s testimony was designed to improperly bolster the testimony of Officer Higgins. Contrary to Ramos’s argument, Agent McHugh testified to the experience and expertise that provided the basis for his expert opinion about drug trafficking. Further, this testimony was also properly used to rehabilitate Officer Higgins’s testimony after it was attacked by defense counsel on cross-examination. See United States v. Cruz,

(2d Cir. 1992) (“[T]he credibility of a fact-witness may not be bolstered by arguing that the witness’s version of events is consistent with an expert’s description of patterns of criminal conduct, at least where the witness’s version is not attacked as improbable or ambiguous evidence of such conduct.” (emphasis added)).

5 88 Even if we were to assume that some of the prosecutor’s comments during summation were

89 improper, Ramos does not demonstrate that they caused “substantial prejudice by so infecting the

90 trial with unfairness as to make the resulting conviction a denial of due process.” United States

91 v. Aquart,

(2d Cir. 2018) (citation omitted). Ramos fails to address prejudice in

92 his brief except in conclusory fashion. There was strong evidence against Ramos, making it likely

93 that he would have been convicted even without the prosecutor’s allegedly improper comments.

94 And the trial court instructed the jury that the attorneys’ closing statements were not evidence and

95 that the government had the burden of proof. This is not the “rare case” where the prosecutor’s

96 summation comments were so prejudicial that relief from conviction is warranted. 3 Aquart, 912

97 F.3d at 27.

98 Fifth, Ramos argues that the district court erred because it did not sever count 1, which

99 addressed the August 2015 incident and contained “inflammatory” evidence about butyryl fentanyl

100 from counts 2–4, which addressed the May 2016 incident. 4 Appellant’s Br. 53. Federal Rule of

101 Criminal Procedure 14(a) states that “[i]f the joinder of offenses . . . appears to prejudice a

102 defendant . . . the court may order separate trials of counts.” “[T]he denial of a severance motion

103 should be reversed only when a defendant can show prejudice so severe as to amount to a denial

104 of a constitutionally fair trial or so severe that his conviction constituted a miscarriage of justice.”

105 United States v. Blount,

(2d Cir. 2002) (cleaned up). We conclude that the

3 Ramos also argues the prosecutor committed misconduct by using evidence about butyryl fentanyl and McHugh’s expert testimony in his summation. As explained above, McHugh’s expert testimony was properly admitted. And Ramos cannot show prejudice from the evidence about butyryl fentanyl where Ramos was acquitted on count 1, the only count related to the butyryl fentanyl. 4 Ramos characterizes his argument as a Rule 8 challenge, but it is more accurately characterized as a Rule 14 challenge. Rule 8 allows joinder of counts where “the offenses charged . . . are of the same or similar character.” Fed. R. Crim. P. 8(a). Ramos does not argue on appeal that the offenses charged for count 1 and counts 2–4 were not of similar character. Instead, Ramos argues that the court should have severed the counts because joinder was prejudicial.

6 106 evidence about butyryl fentanyl was not so prejudicial as to constitute a denial of a constitutionally

107 fair trial or a miscarriage of justice, especially in light of the strong evidence presented at trial on

108 counts 2–4.

109 Ramos also argues that there was a retroactive misjoinder in light of his acquittal on count

110 1. “The term retroactive misjoinder refers to circumstances in which the joinder of multiple

111 counts was proper initially, but later developments . . . render the initial joinder improper.” United

112 States v. Hamilton,

(2d Cir. 2003) (cleaned up). A defendant may be entitled

113 to a new trial if he can show “compelling prejudice” in the form of “prejudicial spillover,” which

114 “requires an assessment of the likelihood that the jury, in considering one particular count or

115 defendant, was affected by evidence that was relevant only to a different count or defendant.”

116 at 182 (citation omitted). Here, Ramos fails to demonstrate prejudicial spillover where the jury

117 acquitted him on count 1, the only count related to the butyryl fentanyl. See

(“The

118 absence of [prejudicial] spillover is most readily inferable where the jury has convicted a defendant

119 on some counts but not on others.” (listing cases)).

120 We have considered the remainder of Ramos’s arguments and find them to be without

121 merit. Accordingly, we affirm the judgment of the district court.

122 FOR THE COURT: 123 Catherine O’Hagan Wolfe, Clerk of Court 124

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