U.S. v. Ramirez, No. 11-50346 (04-29-13) (Kozinski with McKeown and M. Smith)

The judge's sua sponte instruction to the jury that they should not speculate as to the government did not call a witness forbid the jury from doing something it should, indeed, was required to do. The defendant participated in a number of buys from undercover cops. One co-defendant plead and was willing to testify. However, the government elected not to call him, presumably because he was jumped in detention and suffered permanent brain injury. The defendant asked for a "missing witness" instruction. The court declined. This was not an abuse of discretion because the instruction should be given when the witness is within the sole control of the government and the witness's absence should naturally be held against he government. Here, the absence could not be held against the prosecution; there may be other reasons he was not called. The judge's sua sponte instruction to the jury was error. The defendant could argue why the witness was not called. The jury knew he was arrested and had plead. The jury should not have been forced not to infer what the defense argued. The error however was harmless. The evidence was overwhelming. The 9th did vacate the conspiracy conviction. There was no evidence that the drugs were going to be sold to others as part of an agreement. The mandatory 20 year sentence is affirmed because the 841 notice did not have to be presented to the jury as an element. Buckland does not control.

Congratulations to Deputy Federal Defender Devin Burnstein, Federal Defenders of San Diego, for putting up a fight and winning issues.

Jamerson v. Runnels, No. 12-56064 (04-24-13) (O'Scannlain with Nelson and Singleton)

The opinion's first paragraph spells out the issue, and the outcome:  "We must decide whether the California courts' determination that a prosecutor had genuine, race-neutral reasons for striking four black jurors during voir dire was an unreasonable application of federal constitutional law." The 9th held that the state courts' findings were reasonable under AEDPA. The 9th looks past the prosecutor using her 8 first peremptory challenges against 2 Hispanic and 6 black jurors, and then her next two against black jurors, and then her final 5 included 2 against blacks (The first two series of peremptory had Batson objections). The 9th reversed the district court's relief, parsing the reasons and finding them, under a comparative analysis, race neutral. Procedurally, the 9th considered Pinholster and its affect on California Batson/Wheeler challenges, because a comparative analysis can only be considered in post-conviction. The 9th held that the federal court must first do the comparative analysis with other jurors, and then consider that and other evidence in deciding if purposeful discrimination took place, using the doubly deferential review.