880 F.2d 236 (9th Cir. 1989), 88-1319, United States v. Ramirez

Docket Nº:88-1319.
Citation:880 F.2d 236
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eduardo RAMIREZ, Defendant-Appellant.
Case Date:July 24, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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880 F.2d 236 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eduardo RAMIREZ, Defendant-Appellant.

No. 88-1319.

United States Court of Appeals, Ninth Circuit

July 24, 1989

Argued and Submitted May 11, 1989.

Douglas B. Cone, Merced, Cal., for defendant-appellant.

Donald W. Searles, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE and NOONAN, Circuit Judges, and ZILLY, District Judge [*].

NOONAN, Circuit Judge:

Eduardo Ramirez was convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(a)(1), of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and of possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1). He appeals. We reverse his conviction on the ground that there was insufficient evidence to sustain it.

FACTS

On June 1, 1987 a combination of federal and local law enforcement officers conducting an undercover operation purchased an ounce of cocaine from one Miguel Valdez in a parking lot in the rural town of Carruthers,

Page 237

Fresno County, California. After the transaction Valdez was observed going to a house at 11798 South Elm Avenue, Carruthers. On June 9 the undercover agents purchased six more ounces for $5,700 in the same parking lot. Valdez was accompanied by a man named Armando who said the cocaine came from the same place. Both before and after the deal Valdez was seen at the house at 11798 South Elm. On June 12, 1987 the agents met Valdez in the parking lot and purchased a kilo of 100 percent pure cocaine in the form of a brick. At approximately 1:30 p.m., following the completion of the sale, Valdez was arrested.

Simultaneously, law enforcement officers with a search warrant entered the Elm Street house. First announcing their presence and asking to be admitted, the officers after no more than 30 seconds broke into the house. Detective Havlik saw the defendant, Eduardo Ramirez, emerge from what was later identified as the master bathroom. Havlik had his gun drawn and ordered Ramirez to lie on the floor. He did so with his hands out-stretched and made no physical move in disobedience to Havlik's command.

A search of the bathroom by the officers disclosed in plain...

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