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United States v. Ramirez

United States District Court, D. Kansas

August 13, 2019

United States of America, Plaintiff,
v.
Gonzalo Ramirez, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Defendant Gonzalo Ramirez was convicted of conspiring with other members of the Norteño criminal gang to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), see 18 U.S.C. § 1962(d). He was also convicted of various violent crimes in aid of racketeering, see id. § 1959 (VICAR), and multiple firearm counts, see Id. § 924(c)(1)(A). The matter is now before the court on Ramirez's motions to vacate his conviction and sentence under 28 U.S.C. § 2255. As explained below, the court grants the defendant's motions as to one of the charges of conviction, but otherwise denies his claims.

         Following the trial, the jury convicted Ramirez of (Count 1) conspiracy to violate Racketeer Influenced Corrupt Organizations Act by agreeing to commit the racketeering acts of drug trafficking and aggravated assault, in violation of 18 U.S.C. § 1962(d). The jury also convicted Ramirez of committing numerous violent crimes in aid of the racketeering, including (Count 2) conspiracy to commit murder; (Count 3) first degree murder; (Count 4) attempted murder; (Count 5) assault with a dangerous weapon; (Count 6) possessing and discharging a firearm in furtherance of a crime of violence; (Count 7) assault with a dangerous weapon; (Count 8) conspiracy to commit assault with a dangerous weapon; (Count 9) possessing and brandishing a firearm in furtherance an aggravated robbery; (Count 10) conspiracy to commit murder; (Count 11) attempted murder; (Count 12) assault with a dangerous weapon; and (Count 13) possessing and discharging a firearm in furtherance of a crime of violence, namely aggravated assault. All of the violent crime counts charge violations of 18 U.S.C. § 1952(a), except Counts 6, 9, and 13, which allege the violation of 18 U.S.C. § 924(c)(1)(A).

         Ramirez directly appealed his convictions to the United States Court of Appeals for the Tenth Circuit, arguing that (1) the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose promises made to a cooperating witness; (2) the government put on false evidence at trial in violation of Napue v. Illinois, 360 U.S. 264 (1959); (3) the jury was incorrectly instructed that the jurisdictional element of RICO required showing only a minimal effect on interstate commerce; (4) the statute prohibiting violent crimes in aid of racketeering activity (VICAR) was unconstitutionally applied because Ramirez's violent crimes did not affect interstate commerce; and (5) the district court erroneously admitted testimonial hearsay under the guise of a gang expert's opinion, in violation of the Confrontation Clause. See United States v. Garcia/Ramirez, 793 F.3d 1194, 1199 (10th Cir. 2015).

         In his original Motion to Vacate, the defendant presented four arguments: (1) his conviction was the product of government misconduct, with the government violating Brady based on using the testimony of Mr. Worthey;[1] (2) the indictment was defective for not using willfulness aiding and abetting language;[2] (3) that defendant's convictions based on § 924(c) were invalid in light of Johnson II and Dimaya, because the underlying crime of violence is vague;[3] and (4) constitutionally ineffective assistance of counsel in the investigation, failing to seek a bill of particulars, failing to obtain the exclusion of evidence, failing to impeach or effectively cross-examine witnesses, failing to seek a reduction for minor role, and failing to object to the indictment.[4]

         Ramirez subsequently filed an additional timely motion to vacate (Dkt. 1272) within one year of his conviction, which reinforced this previously advanced third argument relating to vagueness. Since then-and beyond the allowed time for collateral attack under 28 U.S.C. § 2255-Ramirez has added eight further claims, including: (5) that his counsel was constitutionally ineffective in failing to preserve defendant's § 924(c)(3)(B) argument;[5] (6) that RICO conspiracy is not a crime of violence;[6] (7) that conspiracies cannot constitute force elements;[7] (8) the prosecution violated double jeopardy because multiple § 924(c) offenses arose from one predicate act;[8] (9) that § 924(c)(3)(B) is impermissibly vague in light of Johnson II and Dimaya;[9] (10) that conspiracy to commit murder is no longer a crime of violence in light of Dimaya;[10] (11) that the court improperly instructed the jury;[11] and (12) that conspiracy to murder under RICO is not a crime of violence because conspiracy under the Guidelines is broader than the charged RICO conspiracy.[12]

         The court finds that five of Ramirez's claims (Arguments 5, 6, 8, 11, and 12) are time-barred, because they reflect new claims or theories in the case. See United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000). These arguments were raised only in the defendant's November 20, 2017 Traverse (Dkt. 1272) and in his 2018 Motion to Amend. (Dkt. 1314), which were filed more than one year after his conviction became final on January 11, 2016. Unlike Arguments 7, 9, and 10, which elaborate on the defendant's timely Johnson and Dimaya claim (Argument 3) in his original Motion to Vacate (Dkt. 1141) and which the court considers separately below, the new arguments rely on “facts that differ in both time and type” from those presented in the timely Motion to Vacate. Mayle v. Felix, 545 U.S. 644, 650 (2005). The new arguments address the constitutional effectiveness of appellate counsel, attacks the Ramirez's Count 1 RICO conspiracy conviction, present a double jeopardy claim, and challenge the jury instructions. These claims are different in form and substance from the original four arguments made in Ramirez's Motion to Vacate, and thus do not relate back to the original motion. Fed.R.Civ.P (15)(c)(2).[13] Thus, the court considers the four timely arguments advanced by the defendant.

         1. Brady Violation

         In his motion to vacate, Ramirez contends that the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that it was relying on the allegedly perjurious testimony of Russell Worthey. (Dkt. 141, at 4). Worthey, a Norteño member testifying for the government, described Ramirez's participation in a 2009 shooting in Dodge City, Kansas.

         The defendant, however, expressly challenged the Worthey's allegedly false testimony both in his Motion for New Trial and his direct appeal as violating his rights under both Brady and Napue v. Illinois, 360 U.S. 264 (1959). The Tenth Circuit concluded that the government had not violated Brady because the allegedly suppressed information as to two meetings between Worthey and law enforcement, which included discussions of the effect of Worthey's cooperation on an unrelated state court murder case, was not material under circumstances of the case.

Several considerations convince us that disclosure of the meetings would not have affected the verdict. [W]e do not see, and Defendants do not explain, how the promise of leniency for testimony in a state proceeding would influence the witness's testimony in a federal trial about a totally different crime. It is one thing to say, as courts often have, that a promise of leniency in return for favorable testimony can induce a witness to embellish or even falsify that testimony. But it is quite another to suggest that a witness will commit perjury in one case because he may receive a benefit from testifying in a wholly unrelated case. Here, the prospective benefit to Worthey from offering information about the state offense could induce him only to embellish his testimony about that case.

793 F.3d at 1205 (emphasis in original, citation omitted). In addition, the court noted the date of the meetings “forecloses the possibility that they corrupted Worthey's testimony, ” because he had already given substantially the same story on three previous occasions, and the defendants had otherwise “vigorously impeached Worthey at trial.” Id. at 1206.

         Worthey under cross-examination

acknowledged that the sentencing guidelines indicated that he would most likely be sentenced to less than life imprisonment; that his plea agreement provided that the government would bring no further charges and would file a motion to reduce his sentence because of his guilty plea, his adoption of a statement of facts incriminating Defendants, and his commitment to testify against Defendants; and that the government could renege if it did not like his testimony. He also admitted that he was a gang member; that he had fought rival gang members; that he managed the gang's money to help imprisoned gang members and to buy drugs and guns; that he used drugs and had once traded some speakers and an amplifier for methamphetamine when he was 14 or 15; that he had been convicted of two felony burglaries; that he had pleaded guilty to an assault involving a tire iron; that he had once gotten into a fistfight with Defendant Ramirez; that he was a cousin of fellow cooperating witness Wright; that pending state charges for assault were dropped only because the federal government decided to prosecute this case; and that before his arrest he had lied about his involvement in the trailer-park shooting. Further, the jury was instructed to treat with greater care the testimony of a witness who provides evidence in exchange for personal advantage. And in closing argument, counsel for both Defendants emphasized Worthey's plea agreement as a reason not to believe him. Any additional impeachment stemming from the undisclosed meetings would have provided only marginal additional support for the defense and was not material.

Id. (internal quotation and citation omitted).

         Because the defendant's Brady argument was previously presented to and rejected by the Tenth Circuit during his direct appeal, it cannot be presented again in the form of a collateral attack. United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).

         2. Defective Indictment

         Ramirez argues the Indictment was defective because, in reference to aiding and abetting under 18 U.S.C. § 2, the Indictment failed to allege that his conduct was willful, and “did not include the words Aids, Abets, Counsel, Commands, Induces and Procures.” (Dkt. 1141, at 23-24). The court finds that defendant's argument is precluded because the argument could have been, but was not, raised in his direct appeal. “[C]laims ...


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