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United States v. Ramos

United States District Court, C.D. California

December 20, 2019

AARON RAMOS, Defendant.




         Presently before the Court is defendant Aaron Ramos' (“Ramos”) “Statement of Facts and Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus; Discovery and an Evidentiary Hearing Requested.” Dkt 448-1 (“Mot.”).[1] The government filed an opposition on October 17, 2019. Dkt 451 (“Opp.”). Ramos filed a reply on November 18, 2019. Dkt. 452 (“Reply”).

         On June 4, 2013, a grand jury returned an indictment charging Ramos and Sharon Paiz (“Paiz”) with two criminal counts: (1) conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846; and (2) distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(viii). Dkt. 1. The government and Paiz reached a plea agreement on March 14, 2014, and Paiz formally entered a guilty plea on March 25, 2014. Dkt. 69, 76.

         Ramos proceeded to trial on September 23, 2014. Dkt. 220. Following a five-day trial, the jury convicted Ramos on both counts. Dkt. 228. Ramos filed a motion for a new trial on February 3, 2015. Dkt. 253. The Court granted Ramos' motion on March 16, 2015, determining that because of statements expressed by a juror during post-verdict polling, “the Court cannot state with certainty that the jury's verdict was unanimous[.]” Dkt. 269 at 10. A grand jury returned a first superseding indictment on June 30, 2015, charging Ramos with an additional count for attempted distribution of methamphetamine. Dkt. 297.

         Ramos' retrial began on December 1, 2015. Dkt. 336. At the retrial, the government introduced the transcripts of telephone conversations between Ramos and a confidential informant (“the informant”).[2] During a February 10, 2010 call, Ramos and the informant discussed “glass, ” a term commonly used to refer to methamphetamine. See Dkt. 451, Exhibit A (“Ex. A”). According to the government's transcript, in a conversation later that day, Ramos notified the informant that Ramos had methamphetamine “on Deck.” Id. at 534. In a conversation on February 11, 2010, the informant and Ramos agreed to meet on February 12, 2010, at the residence where Ramos lived, to discuss a sale of methamphetamine. Id. at 565. A third-party supplier was to provide the narcotics, while the government's case agent, operating as a financier, was to provide the funding for the transaction to the informant. Opp. at 2. In a phone call ten minutes before the scheduled meeting, Ramos told the informant not to be late because “I can't be having these people waiting on [the informant].” Ex. A at 571-572.

         The government and Ramos agree that, prior to arriving to the scheduled meeting, the informant was equipped with a recording device. Mot. at 2; Opp. at 2. When the informant arrived at the scheduled meeting, the recording device initially captured both audio and video. Mot. at 2; Opp. at 2. After some twenty minutes, the recording device stopped capturing video but continued recording audio. Mot. at 2; Opp. at 2.

         During the retrial, the parties offered competing transcripts (and, where applicable, English translations) of the recording captured by the informant's recording device. The parties agreed that the video portion of the recording showed that the informant arrived late to the meeting, that the supplier had therefore left the meeting, and that Paiz had agreed to retrieve the narcotics from the supplier and return to the meeting. Ex. A at 575-87; Dkt. 451, Exhibit B (“Ex. B”) at 726-45. The parties disagreed, however, regarding the audio-only portion of the recording. The government's translator “identified Mr. Ramos' voice speaking in a participatory way during the drug deal, while the defense translator did not (and generally found more words to be unintelligible as compared to the government version).” Mot. at 5. During the retrial, Ramos moved for a mistrial based upon allegedly improper statements made by the government, and the Court reserved judgment, allowing Ramos to renew the motion following the trial.[3] Dkt. 346. On December 3, 2015, the jury returned a verdict, convicting Ramos on all three counts.[4] Dkt. 347.

         Ramos brought a renewed motion for a mistrial on January 25, 2016, on the grounds that the government had made misstatements of fact and law during the government's closing argument. Dkt. 364. On February 29, 2016, the Court denied Ramos' motion for a mistrial. Dkt. 371. On April 4, 2016, the Court sentenced Ramos to 168 months in prison. Dkt. 379. During the hearing, the Court stated: “Obviously, I do want to hear from Mr. Ramos if he wishes to be heard. No?” Dkt. 420 at 22. Ramos' counsel responded, “[w]e can move forward, Your Honor.” Id.

         Ramos thereafter filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit on April 6, 2016. Dkt. 383. The Ninth Circuit affirmed Ramos' convictions, but vacated Ramos' sentence because although the Court inquired of Ramos' counsel whether Ramos wished to be heard, the Court “fail[ed] to personally invite Ramos to allocute at his sentencing hearing.” Dkt. 430 at 4. Accordingly, the Ninth Circuit remanded for resentencing. Id. at 6.

         The Court resentenced Ramos on September 17, 2018. Dkt. 443. During the hearing, the Court provided Ramos with the opportunity to allocute, and during Ramos' allocution, Ramos raised alleged deficiencies in his trial counsel's performance during the retrial. Dkt. 448-1, Ex. A (“Sentencing Tr.”) at 9. Ramos expressed to the Court his view that “I feel that I didn't get a fair trial, . . . on the fact that my lawyer didn't help me out.” Id. at 11. Because Ramos was represented by the Office of the Federal Public Defender during his retrial, the Court noted that, for the purposes of any potential habeas petition raising ineffective assistance of counsel, “if I need to appoint someone once you identify someone, I'm prepared to do that.” Id. at 15.

         On October 10, 2018, Ramos filed a motion seeking the appointment of counsel to assist in the preparation of Ramos' habeas petition. Dkt. 444. Consequently, on October 11, 2018, the Court appointed counsel from the Criminal Justice Act Panel to represent Ramos in connection with his petition. Dkt. 445. Ramos subsequently filed the present petition on September 17, 2019, raising ineffective assistance of his trial counsel. See Mot.


         A petition pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Sanders v. United States, 373 U.S. 1, 2 (1963). Ineffective assistance of counsel constitutes a violation of the Sixth Amendment right to counsel, and thus, if established, is grounds for relief under § 2255. To establish ineffective assistance of counsel, a petitioner must prove by a preponderance of the evidence that: (1) the assistance provided by counsel fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 694 (1984). A § 2255 motion may be resolved without an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         A claim of ineffective assistance of counsel fails if either prong of the test is not satisfied, and a petitioner seeking habeas relief has the burden of establishing both prongs. Strickland, 466 U.S. at 697. With respect to the first prong, the Court's review of the reasonableness of counsel's performance is “highly deferential, ” and there is a “strong presumption” that counsel exercised reasonable professional judgment. Id. The petitioner must “surmount the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. After establishing an error by counsel and thus satisfying the first prong, a petitioner must satisfy the second prong by demonstrating that his counsel's error rendered the result unreliable or the trial fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that there is a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. The Court need not necessarily determine whether petitioner has satisfied the first prong before considering the second; “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.” Strickland, 466 U.S. at 670. Indeed, a petitioner's failure to allege the kind of prejudice necessary to satisfy the second prong is sufficient by itself to justify a denial of a petitioner's § 2255 motion without a hearing. Hill v. Lockhart, 474 U.S. 52, 60 (1985).


         Ramos asserts several bases for his ineffective assistance of counsel claim, including his trial counsel's purported failures: “(1) to file a motion to exclude the video and audio recording because it was unreliable, incomplete, and violated his due process and Confrontation Clause rights; (2) to retain a voice identification expert; (3) to ask the case agent during trial to identify the participants on the recording; and (4) to challenge a biased juror.” Mot. at 6. The Court addresses each of Ramos' contentions in turn.

         A. Motion to Exclude

         Ramos contends that during the retrial, “[t]he government had chosen to use equipment with a proven track record of failure, leaving an unintelligible partial video and full audio record that was highly prejudicial in that it recorded a drug sale, and highly confusing in that it was not clear who had participated and in what capacity.”[5] Mot. at 7. Ramos further asserts that, at the time of the retrial, “[t]he government no longer possessed the recording device itself, so [Ramos] could not determine whether it had actually malfunctioned, or whether the confidential informant . . . had just turned it off.”[6] Mot. at 7-8. Thus, according to Ramos, “a reasonable defense lawyer would have filed a motion to suppress the audio/video tape both on constitutional and evidentiary grounds” and “[b]y not filing such a motion” to “exclude the video and audio recordings, and their questionable transcripts, . . . trial counsel provided deficient performance[.]” Id. at 8-9. The Court addresses Ramos' evidentiary and constitutional efforts in turn.

         1. Evidentiary Objection Based on Reliability

         The Court does not find persuasive Ramos' claims that his trial counsel's failure to move to suppress or exclude the audio/video recording and the recording's transcripts rises to the level of ineffective assistance of counsel because “[t]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989).

         Here, Ramos contends that “[t]he limited probative value of the recording was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading of the jury under Rule 403.” Mot. at 10. However, a “recorded conversation is generally admissible unless the unintelligible portions are so substantial that the recording as a whole is untrustworthy.” United States v. Gadson, 763 F.3d 1189, 1205 (9th Cir. 2014). During the retrial, the government “retained a different interpreter to prepare a brand new transcript . . . [who] testified that using high-quality headphones, he repeatedly watched and listened to the recordings, spending 46 hours on the project[.]” Mot. at 5. Ramos was able to retain his own interpreter, “who also repeatedly reviewed the recordings using headphones, listening to some portions up to 40 times.” Id. Ultimately, “[t]he jurors were given copies of these competing transcripts, each noting the identity of the speakers and the words said, as determined by each interpreter.” Id. That both the government and Ramos were able to retain interpreters who were able to understand the recording to the extent necessary to prepare competing transcripts belies Ramos' claim that the recording was so unintelligible so as to require exclusion. See United States v. Mercado-Ulloa, 267 Fed.Appx. 568, 570 (9th Cir. 2008) (finding that trial counsel's failure to object to admission of taped conversation and written transcript did not amount to ineffective assistance ...

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