UNITED STATES of America, v. Ricardo RAMOS, Appellant.
No. 09-4181.
United States Court of Appeals, Third Circuit.
filed: Oct. 13, 2010.
Submitted Pursuant to Third Circuit LAR 34.1(a) Sept. 24, 2010.
Alan J. Tauber, Esq., Levant, Martin, Tauber & Walker, Philadelphia, PA, for Appellant.
Before: McKEE, Chief Judge, AMBRO, and CHAGARES, Circuit Judges.
OPINION
MCKEE, Chief Judge.
Ricardo Ramos appeals the district court‘s order denying his motion for judgment of acquittal. For the reasons that follow, we will affirm.
I.
We write primarily for the parties and therefore will only set forth those facts that are helpful to our brief discussion of the issues. On March 31, 2008, Philadelphia Police Department Strike Force Officers set up surveillance on Rorer and Cambria Streets in Philadelphia—an area known for heroin trafficking. During the course of that surveillance, the officers saw a black Chevy Suburban circle the block several times and then park directly in front of the officers’ unmarked car. A man walked up to the passenger side window of the Suburban and handed money to a person inside. The person who had walked up to the car then received something back and proceeded to walk away. The officers identified that person as Ulysses Hood, whom they had arrested previously for dealing heroin. Thereafter, a second individual walked up to the car and the same thing happened. The Suburban then proceeded northbound.
Officers stopped the car approximately three blocks from where it had been parked. Co-defendant Franke Burk was the driver and Ricardo Ramos was in the passenger seat. As one of the officers approached the car, he saw packets of heroin in plain view in the area behind the driver‘s seat, as well as the butt of a gun in the back seat. Thereafter, officers searched the car pursuant to a search warrant that they had obtained. During the course of that search, they seized cash, 281 packets of heroin, 24 packets of cocaine, a .40 caliber H & K handgun, and drug paraphernalia.
Ramos and Burk were subsequently charged with: (1) possession with intent to distribute controlled substances, and aiding and abetting with possession with intent to distribute in violation of
Prior to trial, Ramos entered a guilty plea and the government filed a motion in limine to preclude Ramos from admitting a statement that Burk had made accepting sole responsibility for some of the contraband that was seized. After police found the heroin, Burk said that Ramos “had nothing to do with that,” that the money was for an engagement ring, and “this is all mine.” The district court ruled that it would consider Burk‘s statement if Ramos could lay the foundation for an excited utterance or present sense impression during the trial. Ramos did not revisit this ruling during the course of the trial, nor did he make any attempt to lay a foundation to admit Burk‘s statements.
Ramos was found guilty on all counts.
Ramos raises two arguments on appeal: (1) there was insufficient evidence that he had actual possession or knowledge of the items in the car; and (2) the district court erred in precluding him from eliciting from one of the arresting officers the statement that Burk made about Ramos’ involvement.
II.
We have jurisdiction pursuant to
III. ANALYSIS
A. Sufficiency of the Evidence.
Ramos argues that since he exercised no dominion over the contraband, the government failed to prove even constructive possession of the heroin or the firearm beyond a reasonable doubt.
“A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.” United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991)). However, “mere proximity ... is insufficient to support a finding of possession.” United States v. Davis, 461 F.2d 1026, 1036 (3d Cir. 1972). Moreover, a defendant need not have sole possession of an item in order for the government to establish constructive possession of it. “[D]ominion and control need not be exclusive but may be shared with others.” Id. at 1035.
The evidence at trial established that Ramos exercised dominion and control over the drugs and the gun. Officers testified to two separate observations which the jury could reasonably have concluded were hand-to-hand drug sales out of the passenger window of the Suburban where Ramos was sitting. Ramos had $442 in his possession, including twenty-six ten-dollar bills. An expert witness testified that heroin sold for $10 a bag in that area, and that is certainly consistent with having so many ten-dollar bills in one‘s possession. In addition, hundreds of packets of drugs, the gun, and drug paraphernalia were found within close proximity to where Ramos was sitting.
Ramos argues that he was not in the car when these alleged hand-to-hand transactions occurred, and suggests that Burk picked him up somewhere along the three blocks between where the drug sales occurred and the officers stopped the car. Ramos further suggests that even assuming that he was present in the car at the time of the sales, he might have just sat passively while the driver reached past
The relevant inquiry is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Here, it was reasonable for the jury to conclude that Ramos’ presence was more than coincidental. The jury could conclude that he actually participated in the drug sales, and knew the gun was in the car. He was sitting next to the window where drugs and money were exchanged, he had twenty-six ten-dollar bills in his possession, and the gun and hundreds of packets of drugs were in his immediate vicinity inside of the car and were clearly visible to him.1
B. Admissibility of Hearsay Evidence
Ramos also argues that the district court erred in refusing to permit him to admit the statement of co-defendant Burk. Ramos contends that the statement should have been admitted under the present sense impression exception to the hearsay rule. He also argues for the first time on appeal that the district court‘s decision to exclude the statement violated his due process rights pursuant to Chambers v. Mississippi, 410 U.S. 284 (1973).
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
The present sense impression exception allows a court to admit “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
Here, the defense did not elicit any foundation to support the admissibility of co-defendant Burk‘s statement as a present sense impression. Moreover, to its credit, the district court invited defense counsel to seek reconsideration of the ruling while Burk testified. Counsel did not renew the argument that the statement should have been admitted as a present sense impression exception to the hearsay rule. Furthermore, the evidence showed that there was a delay of at least twenty minutes between the defendants’ arrest
Finally, as just noted, Ramos argues for the first time on appeal that precluding Burk‘s statement violates his due process rights pursuant to Chambers. It is well established that, absent extraordinary circumstances, we will not address an issue that is raised for the first time on appeal. See Page v. Schweiker 786 F.2d 150, 153 (3d Cir. 1986). Ramos has not shown any such extraordinary circumstances here, and we do not find any.
IV.
For the foregoing reasons, we will affirm the district court‘s order denying Ramos’ motion for judgment of acquittal.