Saturday, March 30, 2013

Case o' The Week: "Must Be Lying" Must Be Error (But Harmless!) - Ruiz and Closing Arguments

Not content to merely allude to improper arguments, an AUSA emphasizes them in a Powerpoint presentation during closing.  The result? “Sadly condoned by the incantation: “harmless error review.”  United States v. Ruiz, 2013 WL 1197945 (9th Cir. Mar. 26, 2013) (Pregerson, J., concurring), decision available here.

Players: Decision by Judge Paez. Reluctant concurrence by Judge Pregerson. Hard-fought appeal by CD Cal AFPD Brianna Fuller.

Facts: Sisters Diana and Daisy called the police about a man they later identified as Raymond Ruiz: he was holding a shotgun, mumbling, and walking down a street. Id. at *1. Five minutes after their call, cops in a helicopter saw a man run behind a house and throw a shoe box-sized item over a fence into a vacant lot. Id. Another cop arrived and found a box in the lot with 12-gauge shotgun shells. Id. Yet another officer found Ruiz, trying to get into the house. Id. A 12-gauge shotgun was discovered an arm’s length from Ruiz. Id. At trial the prosecutor used Powerpoint slides – over defense objection – that insisted the jury could only find Ruiz not guilty if the jury found that the officers “lied to you.” Id. at *3.
Issue(s): “At the heart of Ruiz’s argument is his contention that the prosecutor’s statement presented the jury with a false choice between his and the officers’ accounts, since the officers could have testified honestly, but nonetheless mistakenly perceived the events on the night in question. This false choice, he asserts, improperly shifted the burden of proof to the defense.” Id. at *3.

Held:[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. at *3 (quotations and citation omitted). “Here, the prosecutor’s argument came very close to altering the burden of proof . . . [T]he prsoecutor’s argument that either the [officer] or Ruiz must be lying could well be construed as arguing an inference unsupported by the evidence, and thereby altering the burden of proof.” Id. at *4. “We need not decide the issue . . . because we conclude that, even if the prosecutor committed error, the error was harmless . . . “In light of the strength of the evidence, the prosecutor’s evidence did not materially affect the fairness of Ruiz’s trial.Id. at *5.

Of Note: Judge Pregerson “reluctantly” joins the majority opinion, but write separately to specifically question the slides used by the prosecutor in closing argument. Id. at *7 (Pregerson, J., concurring). As explained by Judge Pregerson, the prosecutor’s argument “distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: ‘harmless error review.’” Id. at *7. 
  Interestingly, two years ago Judge Paez penned one of the best harmless error cases in the Ninth. See United States v. Hunt, 656 F.3d 906 (9th Cir. 2011); see also blog here. Frustrating to here see harmless error shield plainly improper argument by the prosecutor.

How to Use: Little to celebrate in Ruiz, but there’s an informative (albeit disappointing)
discussion on jury unanimity in a gun case. Id. at *2. Ruiz was charged with one 922(g) count that encompassed three theories: possessing the gun as seen by the sisters, possessing the ammo in the box, and constructive possession of the shotgun found by the cop. Id. at *1. Not a problem, assures the Ninth: Ruiz was charged with possession of the gun and ammo during one ten-minute period on one night in one location. Id. at *2. The jurors could convict on whatever evidence that they felt supported Ruiz’s guilt, even if they failed to agree on which evidence was persuasive. Id. at *2. (Appropriate that a shotgun was at issue here: this is prosecution by spray shot, where the jury could have split 4/4/4 on the three theories and still convicted!)
For Further Reading: Did you know that federal agents have tracked people here in
NorCal, using “stingray” cell phone interception technology, and have done so without a warrant? News to us too. Read the fascinating ACLU account, including an intriguing AUSA e-mail exchange on the subject, here. 
  If you have a wiretap, it’s a safe bet your clients were electronically tracked under the guise of a vanilla pen register (a register obtained with an application that didn’t reveal it was authorizing a tracking device). The ACLU’s great work will make for some lively Title III litigation.   

 Stingray illustration from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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