United States v. Raymond Ruiz, Jr.
710 F.3d 1077
| 9th Cir. | 2013Background
- Fuentes sisters identified Ruiz as the man seen with a shotgun on their street on Sept. 6, 2008.
- A police helicopter observed Ruiz from 300–500 feet tossing a shoe-box–sized item over a fence.
- Officers found a shoe box with eight to twelve 12-gauge shotgun shells in the vacant lot.
- Officer Verbanic confronted Ruiz at the back door; a shotgun was found within arm’s reach and ammunition matched the shotgun.
- Ruiz waived Miranda rights; he allegedly stated the shotgun belonged to his father and that he was hiding it; Ruiz denied making the statements.
- An indictment charged Ruiz with being a felon in possession of a firearm and ammunition; a jury convicted Ruiz on the sole count on December 10, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity instruction whether required for one-count charge | Ruiz argues there were three underlying acts. | No need for separate unanimity for a continuous course of conduct. | No error; single, continuous act of possession over ten minutes. |
| Prosecutorial misconduct in closing—'someone must be lying' and related arguments | Prosecutor improperly shifted burden or vouched for witnesses. | Arguments were permissible in context; some vouching occurred but not reversible. | Harmless error for the 'someone must be lying' portion; improper vouching found but not prejudicial. |
| Additional objections (cross-examination limit, readback instruction, cumulative error) | District court erred on cross-examination and readback; cumulative error. | Errors were prejudicial or cumulative. | No merit; errors isolated and not prejudicial; no cumulative error warranting reversal. |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (1991) (indictment need not specify which overt act was the means of committing the crime; jurors need not agree on preliminary factual issues for liability)
- United States v. Lyons, 472 F.3d 1055 (9th Cir.2007) (no general requirement of unanimity on theory of liability; need only unanimity on the underlying offense)
- United States v. Anguiano, 873 F.2d 1314 (9th Cir.1989) (unanimity instruction required if genuine juror confusion or multiple acts could support conviction)
- United States v. Echeverry, 719 F.2d 974 (9th Cir.1983) (cited in unanimity instruction analysis)
- United States v. Wilkes, 662 F.3d 524 (9th Cir.2011) (prosecutor's comments close to burden-shifting may be harmless in light of evidence)
- United States v. Tucker, 641 F.3d 1110 (9th Cir.2011) (prosecutor may argue reasonable inferences; not per se burden shift)
- United States v. Molina, 934 F.2d 1440 (9th Cir.1991) (prosecutor can argue which side is lying as inference in a clash of witnesses)
- United States v. Nobari, 574 F.3d 1065 (9th Cir.2009) (improper statements require harmless error analysis when evidence is overwhelming)
- United States v. Necoechea, 986 F.2d 1273 (9th Cir.1993) (framework for evaluating vouching and credibility-related comments)
- United States v. Kerr, 981 F.2d 1050 (9th Cir.1992) (prosecutor may not express personal impression of guilt; but context matters)
- United States v. McKoy, 111 F.2d 1207 (9th Cir.1985) (prosecutor may not rely on personal belief about witness credibility)