Case o' The Week: Ninth in a Speculative Mood - Ramirez and Sua Sponte "Don't Speculate" Instructions
Speculation by a jury is a dangerous thing. It can lead to questioning the government’s case, and – if not kept in check – reasonable doubt. United States v. Ramirez, 2013 WL 1789529 (9th Cir. Apr. 29. 2013), decision available here.
Players: Decision by CJ Kozinski, joined by Judges McKeown and M. Smith. Hard-fought case by San Diego Ass’t Defender Devin Burstein.
Facts: Undercover agents used Bejaran as a go-between to buy meth from Ramirez. Id. at *1. Both men were arrested and charged: Bejaran flipped and cooperated. Id. Before trial, Bejaran was jumped by two inmates and hospitalized with permanent brain damage. Id. at *2. At Ramirez’s trial, the government chose not to call Bejaran: instead, it offered his statements using the undercover agent’s testimony and audio recordings. Id. at *1. Bejaran never testified, though the defense established he had been arrested and pled guilty. Id. Ramirez asked for a “missing witness” instruction, informing the jury it could conclude that Bejaran’s absence was because his testimony could have hurt the government. Id. The district court refused. Id. When the defense discussed Bejaran’s absence during closing, the court instructed the jury that it “should not speculate as to any reason why Bejaran was not called.” Ramirez was convicted. Id.
Issue(s): “When may a judge instruct jurors not to speculate?” Id. at *1.
Held: 1. Re: Missing Witness: “A missing witness instruction is appropriate if two requirements are met: (1) the party seeking the instruction must show that the witness is peculiarly within the power of the other party and (2) under the circumstances, an inference of unfavorable testimony against the non-moving party from an absent witness is a natural and reasonable one . . . .The district judge here didn't abuse his discretion by failing to give this instruction.” Id. at *1 (internal quotations, brackets, and citations omitted).
2. Re: “Don’t Speculate” Sua Sponte Instruction: “A judge may not preclude the jury from drawing any inferences that it may legitimately draw. The sua sponte instruction, therefore, was error. By instructing the jurors to disregard any uncertainty about why the prosecution didn't call a witness—who might have been the key witness— the court improperly inserted itself into the jury room and interfered with the jury's role as a factfinder. This incident demonstrates why it's a good practice for the court to discuss the language of a proposed instruction with the parties before giving it. Had the court done so here, defense counsel may have pointed out the error and convinced the judge not to deliver the instruction, thus avoiding an issue on appeal.” Id. at *4.
Of Note: Ramirez sold Bejaran much meth. That alone, however, is not enough to prove a conspiracy to distribute. Id. at *5. “To prove conspiracy, the government had to show more than that Ramirez sold drugs to someone else knowing that the buyer would later sell to others. It had to show that Ramirez had an agreement with a buyer pursuant to which the buyer would further distribute the drugs.” Id. (internal quotations and citations omitted). Ramirez is a welcome reminder that conspiracy does have some limits (albeit few).
How to Use: The distribution charge in Ramirez was ultimately upheld, because of harmless error review. Id. at *4. Nonetheless, this is a useful case to stave off sua sponte instructions by DJ’s reacting to (usually favorable) defense developments. As the Chief warns, “This incident demonstrates why it’s a good practice for the court to discuss the language of a proposed instruction with the parties before giving it. Had the court done so here, defense counsel may have pointed out the error and convinced the judge not to deliver the instruction, thus avoiding an issue on appeal.” Id. at *4.
Moreover, the Ninth warns off the inclination to help “clarify” the government’s case: “[I]t is the government’s job, not the court’s, to make sure the jury doesn’t draw incorrect inferences. Doing so here would have complicated the prosecution's case somewhat, and perhaps that is why the government chose not to say anything about the reasons for Bejaran's absence. But that was the government’s choice to make. It was not the court’s function, after both sides had rested, to give an instruction that filled in the evidentiary gap the court believed the government had left in its case.” Id. at *3.
For Further Reading: Last week the Judicial Conference asked for $43 million in emergency funding for federal indigent defense. See article here.
The letter of Judges Gibbons and Hogan is a must-read – lays out just how grim things are. See Judicial Conference letter here.
Image of Mark Twain and quote from http://www.twainquotes.com/Speculation.html
Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org