United States of America v. Miguel Ramirez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-4103
____________
UNITED STATES OF AMERICA
v.
MIGUEL RAMIREZ,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00818)
District Judge: Honorable James Knoll Gardner
____________
Submitted Under Third Circuit LAR 34.1(a)
September 27, 2007
Before: McKEE, BARRY and FISHER, Circuit Judges.
(Filed: October 3, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Miguel Ramirez was convicted of distributing approximately 6.4 grams of a
methamphetamine-containing substance, in violation of 21 U.S.C. § 841(a)(1); possessing
with the intent to distribute approximately 54.65 grams of a methamphetamine-containing

-- 1 of 8 --

2
substance, in violation of 21 U.S.C. § 841(a)(1); and possessing a firearm in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). He now challenges the
sufficiency of evidence supporting the jury’s verdict, and the admission of expert
testimony at his trial. For the reasons that follow, we will affirm the judgment of the
District Court.
I.
As we write only for the parties, we will forgo a lengthy recitation of the factual
and legal background to this case. On October 31, 2003, Adam Miller, a detective with
the Lancaster County Drug Enforcement Task Force, placed a call to Ramirez’s cell
phone. Acting undercover, Detective Miller arranged to purchase methamphetamine
from Ramirez at Ramirez’s residence. Less than an hour later, Ramirez delivered four
clear, stamp-sized plastic bags that held 6.4 grams of a methamphetamine-containing
substance to Detective Miller in exchange for $700. The methamphetamine was kept in a
small wooden cigar box underneath the coffee table in Ramirez’s living room.
Subsequently, on December 12, 2003, Detective Miller along with other members
of the Drug Enforcement Task Force executed a state search warrant on Ramirez’s
residence. As he entered the residence, Detective Miller noticed a digital scale with a bag
of what appeared to be crystal methamphetamine on top and a torn bag containing
methamphetamine on the floor in front of where Ramirez was eventually arrested.
Ramirez also had a bag containing approximately 28 grams of methamphetamine in his

-- 2 of 8 --

3
pocket. During the search, detectives also seized the wooden box that Detective Miller
noticed when he originally purchased the drugs from Ramirez.
Near the digital scale and the bag of methamphetamine that were found in
Ramirez’s dining room, detectives found a Glock .45 caliber semiautomatic pistol, which
was loaded with ten live rounds of ammunition. This gun, along with a holster and two
spare magazines, was located in an open bag next to the scale. There were no protective
glasses or other sporting equipment located in or near the bag.
As the detectives continued to search Ramirez’s residence, they came upon another
wooden box in the master bedroom. This box contained assorted drug paraphernalia, a
scale, and a small amount of what appeared to be marijuana. In the closet of the
bedroom, detectives found an unlocked safe that contained a Taurus 9mm semiautomatic
pistol, loaded with ten live rounds of ammunition. Next to this safe was a black lockbox
containing $5,000 and a notebook where Ramirez had recorded debts owed to him by
various people for methamphetamine.
After his arrest on December 12, 2003, Ramirez waived his Miranda rights and
consented to be interviewed by detectives. During the interview, he admitted that the
drugs, money, and guns seized in the search were his, and that he possessed the drugs
with the intention to provide them for sale to others. Although he initially claimed that
the handguns were for target shooting, he later stated that they were to protect the house.
During Ramirez’s jury trial for drug charges, the Government introduced the
evidence noted above, including the drug sale to Detective Miller and the items found in

-- 3 of 8 --

4
the search of his home. In addition, the Government offered the expert testimony of
Detective John Ator to address the Government’s claim that the firearms found at
Ramirez’s residence were possessed in furtherance of a drug trafficking offense. His
testimony included his views on a hypothetical question posed by the Government.
Specifically, the testimony included the following exchange:
Q. Now, Det. Ator, I’m going to ask you a hypothetical question. This
is in your capacity as an expert witness as you’ve been previously
qualified.
Detective, assume for purposes of this hypothetical, that a substantial
amount of narcotics are found in one room of a multi-room
apartment in close proximity to drug paraphernalia and a loaded
handgun. Another room, in the closet of that other room contains a
scale, other drug paraphernalia, a substantial amount of cash and
another loaded handgun. Based on those facts, are you able to form
any expert opinions within your field of expertise?
. . . .
A. Based on the facts of the hypothetical, those firearms would be
consistent with furthering of drug trafficking.
(Supp. App. at 199). Ramirez, on the other hand, testified that he had obtained a permit
to carry a concealed firearm for target shooting. However, the reason listed on the permit
was “self defense,” and he admitted during cross-examination that “having a gun
accessible during a drug transaction could provide protection in case a drug deal would go
sour.” Id. at 259.
On April 6, 2005, the jury found Ramirez guilty on all counts, and the District
Court subsequently sentenced him to 120 months imprisonment. This appeal followed.
II.

-- 4 of 8 --

5
We exercise jurisdiction in this case pursuant to 28 U.S.C. § 1291. Because
Ramirez did not raise an objection to the sufficiency of the evidence at trial, we will
reverse only if we find clear error. See, e.g., United States v. Wolfe, 245 F.3d 257, 260-61
(3d Cir. 2001). “This standard is met when there is an ‘error’ that is ‘plain’ and that
‘affects substantial rights.’” Id. at 261 (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). In addition, we review a district court’s decision to admit expert testimony for
abuse of discretion. See, e.g., Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000).
III.
A.
Ramirez’s first argument is that there was not sufficient evidence produced at trial
to sustain the jury’s verdict that he possessed the firearms in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). He claims that he was the
lawful owner of the two handguns for sporting and self-defense purposes, and that there is
no evidence that he ever attempted to reach for the guns during any of his interactions
with law enforcement.
“Under § 924(c), the ‘mere presence’ of a gun is not enough. ‘What is instead
required is evidence more specific to the particular defendant, showing that his or her
possession actually furthered the drug trafficking offense.’” United States v. Sparrow,
371 F.3d 851, 853 (3d Cir. 2004) (quoting United States v. Ceballos-Torres, 218 F.3d
409, 414 (5th Cir. 2000)). Among the non-exclusive factors relevant to making such a
determination are “the type of drug activity that is being conducted, accessibility of the

-- 5 of 8 --

6
firearm, the type of the weapon, whether the weapon is stolen, the status of the possession
(legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and
the time and circumstances under which the gun is found.” Id. (quoting Ceballos-Torres,
218 F.3d at 414-15) (internal quotation marks omitted). Finally, although “the location of
a firearm is admittedly relevant, immediate accessibility at the time of search or arrest is
not a legal requirement for a § 924(c) conviction.” Id.
In the case before us, there was certainly sufficient evidence to sustain the jury’s
verdict. Both of the guns found in Ramirez’s home were located close to other items
related to his drug trafficking activities, such as scales, drug profits, and the drugs
themselves. Each contained ten live rounds of ammunition. Finally, belying Ramirez’s
claim that the guns were for sporting purposes, he did not have a membership to any gun
club and there were no sporting-related items anywhere near the guns. Accordingly, we
conclude that there was sufficient evidence to support the jury’s verdict that the guns
were possessed in furtherance of a drug trafficking crime.
B.
Next, Ramirez argues that the District Court erred by allowing the expert
testimony of Detective Ator because it violated Federal Rule of Evidence 704(b)’s
prohibition against testimony about a defendant’s mental state, and was not proper expert
testimony under Federal Rule of Evidence 702. We disagree.
As we have explained in the past when discussing Rule 704(b), “[e]xpert
testimony is admissible if it merely ‘support[s] an inference or conclusion that the

-- 6 of 8 --

1Ramirez also argues that this testimony was inadmissible because there are many
differences between the hypothetical posed to Detective Ator and the facts of Ramirez’s
case. However, Ramirez’s counsel was free to exploit any differences during cross-
examination of Detective Ator, leaving the ultimate question up to the jury to decide.
7
defendant did or did not have the requisite mens rea, so long as the expert does not draw
the ultimate inference or conclusion for the jury and the ultimate inference or conclusion
does not necessarily follow from the testimony.’” United States v. Watson, 260 F.3d 301,
309 (3d Cir. 2001) (quoting United States v. Bennett, 161 F.3d 171, 183 (3d Cir. 1998)).
In United States v. Davis, 397 F.3d 173 (3d Cir. 2005), for example, the
Government posed a hypothetical question similar to the one asked in the instant case.
The expert witness in Davis was asked “whether, assuming that ‘five persons were in a
car, four of whom possessed handguns,’ and that ‘one person possessed a handgun with
12 packets, another person possessed a handgun with 19 packets, [and] one person . . .
possessed a handgun with 44 packets,’ ‘would you say that would be consistent with drug
trafficking or consistent with possession, simple possession.’” Id. at 177. He responded
that such behavior was consistent with “possession with intent to deliver the narcotics.”
Id. Although this hypothetical question closely mirrored the facts of the defendant’s case,
we determined that it was not an error to admit the testimony under either Rule 702 or
Rule 704 because the “testimony was given in response to hypothetical, rather than
specific, questions regarding the intent of individual defendants on trial.” Id. at 179.
The testimony admitted in the instant case is no different. Detective Ator was
asked a hypothetical question that closely mirrored the facts of Ramirez’s case,1 and he

-- 7 of 8 --

8
answered that his experience tended to suggest that such a situation was consistent with
the possession of a firearm in furtherance of a drug trafficking crime. Because the
testimony involved hypothetical, rather than specific, questions, the District Court did not
err by admitting it.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

-- 8 of 8 --