United States v. Ramirez
United States v. Ramirez
Opinion of the Court
MEMORANDUM
We have jurisdiction over Defendants’ appeals pursuant to 28 U.S.C. § 1291, and we affirm.
I
INEFFECTIVE ASSISTANCE OF COUNSEL
Ineffective assistance of counsel claims are generally addressed on collateral, not on direct, appeal.
II
CONFRONTATION CLAUSE
Defendants raise a number of Confrontation Clause issues. Because none of these issues was raised before the trial court, we review them for plain error.
Defendants object to a number of statements made by Detective Haskins. None of the statements merits reversal. Haskins’ statements regarding the unidentified informant were not introduced for their truth, but to provide background regarding the investigation. Thus, they were admissible.
B. Foundation
The introduction of the methamphetamine found in the tire was not predicated upon hearsay. The dog handler testified to the dog’s “alert” on the tire. The handler then saw the tire after it was broken down, and saw what was in it. Officer Ericsson also saw the dog alert to the tire, saw the tire being searched, saw the methamphetamine package, and identified photographs of the drug. Haskins identified the specific exhibits as those on which he put exhibit tags in the garage.
Any claimed time disparity in the officers’ testimony regarding the finding of the drugs does not create foundational problems. Defendants were free to cite the disparity in order to undermine the officers’ credibility. No foundation or hearsay problems are associated with this disparity, however. We have considered the other foundation claims asserted by Defendants and have concluded that they are unpersuasive.
C. Disposal of Evidence
Defendants make no showing of prejudice by stating that the evidence might have proved exculpatory.
D. Co-Defendants’ Confessions
The Government conceded a Bruton error as to defendant Fredman. Buck and Angie Jenkins’ confessions should not have been introduced. Because Fredman did not raise this error before the trial court, however, we review for plain error, and the burden is on him to show prejudice.
III
DUE PROCESS
All of Defendants’ due process claims are reviewed for plain error because they were not raised below.
Because there was no error in any of the specific instances alleged, there was no cumulative error.
IV
SPOUSAL PRIVILEGE
A. As to Marcos Ramirez
Kathy Ramirez claimed her spousal privilege, which made her unavailable to testify as to her husband. Although she was forced to invoke her privilege before the jury, any error was harmless in this context. In this case, unlike most, the invocation of the spousal privilege did not keep the testimony of the invoking spouse from the jury.
B. As to the Others
The introduction of Kathy Ramirez’s grand jury testimony before she had testified inconsistently on the stand reversed the order of proof contemplated by Rule 801. Eventually, however, Ramirez did reject substantial portions of her grand jury testimony. Thus, her grand jury testimony would have been admissible for impeachment, albeit somewhat later in trial. Given the realities of the positions of the parties, the error in the order of proof was harmless.
V
SEVERANCE
Because Marcos Ramirez did not move to sever before trial, we review his claim for plain error.
As to Buck and Angie Jenkins, the district court did not abuse its discretion
VI
OTHER TRIAL ISSUES
We have examined the other claims of error and have determined that they are unpersuasive.
VH
SENTENCING ISSUES
A Defendant Fredman’s State and Federal Sentences
Defendant Fredman appeals the district court’s denial of his request that his federal sentence run concurrently with his state sentence. The district court did not abuse its discretion by denying the Section 5G1.8(b) concurrent sentence. Defendant’s federal conviction did not take into account the new conspiracy in which he was participating when he left Oregon, for which he is serving his California sentence. The new conspiracy was a separate venture, for which defendant properly received a separate — and nonconcurrently running — sentence. No duplicate punishment for the same conduct is involved in defendant’s federal sentence.
B. Apprendi
All of the defendants’ sentences exceed the statutory maximum term of twenty years’ imprisonment prescribed by 21 U.S.C. § 841(b)(1)(C) for one count. However, all of the defendants were convicted of multiple counts. We recently held that when a judge calculates drug quantity under the United States Sentencing Guidelines and when “the Guidelines calculation exceeds the statutory maximum for any count in a case involving multiple counts, then the mandatory provisions of § 5G1.2(d) come into play regarding the question of consecutive sentences.”
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. United States v. Reyes-Platero, 224 F.3d 1112, 1116 (9th Cir. 2000), cert, denied, 531 U.S. 1117, 121 S.Ct. 868, 148 L.Ed.2d 780 (2001).
. See id.
. See United States v. Nazemian, 948 F.2d 522, 525 (9th Cir. 1991).
. Toolate v. Borg, 828 F.2d 571, 575 (9th Cir. 1987) ("A Confrontation Clause violation does not require reversal if the error was harmless beyond a reasonable doubt.”).
. See United States v. Becerra, 992 F.2d 960, 965 (9th Cir. 1993).
. See United States v. Heffington, 952 F.2d 275, 280 (9th Cir. 1991).
. Id.
. United States v. Arias-Villanueva, 998 F.2d 1491, 1507 (9th Cir. 1993) (citing United States v. Longee, 603 F.2d 1342, 1345 (9th Cir. 1979)).
. Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
. Cf. Courtney v. United States, 390 F.2d 521, 526-27 (9th Cir. 1968).
. Jones, 527 U.S. at 388.
. United States v. Sarkisian, 197 F.3d 966, 975 (9th Cir. 1999).
. Id.
. United States v. Buckland, 277 F.3d 1173 at Part IV.B. (9th Cir. 2002) (en banc).
Reference
- Full Case Name
- United States v. Marcos Xavier RAMIREZ, Frank Fredman, Angie Jenkins, Edward Lee Triplett and Wayne Neal Jenkins
- Cited By
- 4 cases
- Status
- Published