Ramirez v. United States

Citation350 F.2d 306
Decision Date10 August 1965
Docket NumberNo. 19905.,19905.
PartiesLorenzo RAMIREZ, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Howard Meyerson, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Michael P. Balaban, A. I. Berman, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before JERTBERG and BROWNING, Circuit Judges, and MUECKE, District Judge.

JERTBERG, Circuit Judge.

Following trial to a jury, appellant was convicted on five counts of a seven count indictment returned against appellant and co-defendant Ruiz. Counts ONE and TWO related only to the co-defendant Ruiz. Counts THREE, FOUR, FIVE and SIX charged appellant and Ruiz jointly with unlawful concealment and sale of illegally imported heroin, and Count SEVEN charged appellant, only, with unlawful concealment of illegally imported heroin all in violation of 21 U.S.C. § 174.

Appellant's assignment of errors state:

"(1) The trial court erred in the instructions to the jury on circumstantial and direct evidence";

"(2) The last sentence of Title 21 U.S.C. § 174 is unconstitutional in that it purports to shift the burden of proof to the accused contrary to basic American jurisprudence and civil rights;" and

"(3) To show `position' (sic possession) under Title 21 U.S.C. § 174, the government's evidence must be direct."

The court instructed the jury on circumstantial evidence as follows:

"Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, if adequately convincing, juries may lawfully find an accused guilty of crime. One is direct evidence, and the other is circumstantial.
"Direct evidence of the commission of a crime consists of the testimony of witnesses who, through any of their own physical senses, perceived any of the conduct constituting the crime, and which testimony relates what thus was perceived. All other evidence admitted in the trial is circumstantial, and insofar as it shows any acts, declarations, conditions or other circumstances tending to prove a crime in question, or tending to connect the defendant with the commission of such a crime, it may be considered by you in arriving at a verdict. The law makes no distinction between circumstantial evidence and direct evidence as to the degree of proof required for conviction, but respects each for such convincing force as it may carry, and accepts each as a reasonable method of proof. Either will support a verdict of guilty if it carries the convincing quality required by law, as stated in my instructions."

The above instruction was immediately preceded by the court's instruction pertaining to reasonable doubt, which instructions we find to be clear, comprehensive and complete.

Appellant states in his objection to the quoted instruction as follows:

"The specific error of the Trial Court was that after embarking on an instruction pertaining to circumstantial evidence it was committed to go all the way and give complete instructions on the subject to the jury and in failing to do so prejudiced the Appellant. There was no instruction to the jury as to any question of two reasonable interpretations of circumstantial evidence. One pointing to the Defendant\'s guilt and the other pointing to the Defendant\'s innocence. The instruction as given could have misled the jurors into thinking that they could infer only guilt from circumstantial evidence, and not innocence."

We find no merit in appellant's contention. In Holland v. United States, 348 U.S. 121 at pages 139-140, 75 S.Ct. 127 at page 137, 99 L.Ed. 150 (1954), it is stated as follows:

"The petitioners assail the refusal of the trial judge to instruct that where the Government\'s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. * * * the better rule is that where the jury is properly
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3 cases
  • United States v. Nelson
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 20, 1969
    ...are in accord with this interpretation of Holland. Mull v. United States, 402 F.2d 571, 575 (9th Cir. 1968); Ramirez v. United States, 350 F.2d 306, 307-308 (9th Cir. 1965); Armstrong v. United States, 327 F.2d 189, 194 (9th Cir. 1964); Strangway v. United States, 312 F.2d 283, 285 (9th Cir......
  • Mull v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 24, 1969
    ...The court fully instructed on the presumption of innocence and the government's burden of proof. More is not required. Ramirez v. United States, 9 Cir., 1965, 350 F.2d 306. * Honorable Ray McNichols, District Judge, District of Idaho, sitting by designation. 1 The exceptions listed in secti......
  • Brown v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 3, 1967
    ...the constitutionality of 21 U.S.C. § 174 have long been put to rest by numerous decisions in this Circuit. See e. g., Ramirez v. United States, 350 F.2d 306 (9th Cir. 1965); Pool v. United States, 344 F.2d 943 (9th Cir. 1965); Brown v. United States, 370 F.2d 874 (9th Cir. As in most entrap......

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