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.
Decision by CJ Kozinski, joined by
Judges McKeown and M. Smith. Hard-fought case by San Diego Ass’t Defender Devin
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
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).
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
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.
Further Reading: Last week the
Judicial Conference asked for $43 million in emergency funding for federal
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.
of Mark Twain and quote from http://www.twainquotes.com/Speculation.html
Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org
Labels: Adverse Inference, Conspiracy, Jury Instructions, Kozinski, McKeown, Milan Smith, Missing Witness Instruction