United States v. Ruiz

• Decision Date: 26 March 2013
• Docket Number: No. 10–50211.,10–50211.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Raymond RUIZ, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

710 F.3d 1077

UNITED STATES of America, Plaintiff–Appellee,

v.Raymond RUIZ, Jr., Defendant–Appellant.

No. 10–50211.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 7, 2011.

Filed March 26, 2013.

Brianna J. Fuller, Deputy Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

Joseph B. Widman, Assistant United States Attorney, Riverside, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:09–cr–00099–VAP–1.

Before: HARRY PREGERSON and RICHARD A. PAEZ, Circuit Judges, and SUZANNE B. CONLON, District Judge.^*

OPINION

PAEZ, Circuit Judge:

Raymond Ruiz, Jr. (“Ruiz”) appeals his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I. BACKGROUND

On September 6, 2008, sisters Diane and Daisy Fuentes saw a man holding a shotgun, mumbling, and walking down a street in their residential neighborhood. Diane called 911. When questioned by a San Bernardino police officer later that evening, both sisters identified the man as Raymond Ruiz, Jr.

Five minutes later, San Bernardino Police Officer Peck responded to the 911 call in a police helicopter. From 300 to 500 feet in the air, Officer Peck saw a man run around the back side of a house and throw a shoe box-sized item over a fence into a vacant lot. Another police officer, Officer Porch, arrived at the scene and searched the vacant lot. Officer Porch found a shoe box with eight to twelve 12–gauge shotgun shells. A third officer, Officer Verbanic, arrived at the house and confronted Ruiz, who was attempting to enter the house through the back door. Officer Verbanic ordered Ruiz to get on the ground. As Ruiz did so, Officer Verbanic noticed a shotgun to Ruiz's left, about an arm's length away. The 12–gauge shotgun ammunition matched the shotgun found by Officer Verbanic.

Ruiz was arrested. A fourth officer, Officer Ludikhuize, took Ruiz to a squad car, where Ruiz waived his Miranda rights and allegedly stated that the shotgun found next to him belonged to his father and that he had been trying to hide it when the police arrived. At trial, Officer Ludikhuize testified to that effect, while Ruiz denied making these statements.

A one-count indictment charged Ruiz with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). On December 10, 2009, a jury found Ruiz guilty of the sole count in the indictment.

Ruiz appeals his conviction and raises five issues, two of which we address in detail: whether the district court erred in failing to give the jury a specific unanimity instruction, and whether the Assistant United States Attorney committed prosecutorial misconduct in his closing argument when he: (a) allegedly vouched for government witnesses, (b) commented on the strength of the government and defense cases, (c) allegedly denigrated defense counsel, and (d) argued that, in order to acquit Ruiz, the jury would have to conclude that Officers Peck and Ludikhuize were lying.¹

II. DISCUSSIONA. Unanimity Instruction

Ruiz argues that the district court erred in failing to give a specific unanimity instruction because the one-count indictment in effect charged three separate offenses: (1) possession of the shotgun as witnessed by the Fuentes sisters, (2) possession of the ammunition found in the shoe box, and (3) constructive possession of the shotgun at the time Ruiz was arrested. Because Ruiz did not request a specific unanimity instruction at trial, we review the district court's failure to give such an instruction for plain error. United States v. Hofus, 598 F.3d 1171, 1175 (9th Cir.2010).

In Schad v. Arizona, the Supreme Court explained that “an indictment need not specify which overt act, among several named, was the means by which a crime was committed.” 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). As a corollary to this principle, “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict,” since “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.” Id. at 631–32, 111 S.Ct. 2491 (internal quotation marks and citation omitted); see also United States v. Lyons, 472 F.3d 1055, 1069 (9th Cir.2007) (“[J]urors need not be unanimous as to a particular theory of liability so long as they are unanimous that the defendant has committed the underlying substantive offense.”).

Despite this general rule, if there is “a genuine possibility of jury confusion” or if “a conviction may occur as the result of different jurors concluding that the defendant committed different acts,” then “an instruction should be given to the effect that the jury may not convict unless it unanimously agrees to a particular set of facts.” United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989) (citing United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983) (internal quotation marks omitted)).² Ruiz argues that a genuine risk of juror confusion existed at trial since the government's theory of possession relied on three distinct sets of underlying facts. As a result, certain jurors may have credited the Fuentes sisters' testimony, while others credited Officers Peck's, Verbanic's, or Ludikhuize's testimony, without reaching unanimous agreement as to any set of facts sufficient for conviction.

We disagree. The indictment was not duplicitous. Ruiz was charged with possession of a firearm and ammunition during one ten-minute period on one night in one location. While numerous witnesses testified that Ruiz possessed the shotgun and ammunition at different times throughout that ten minute period, their testimony does not establish that Ruiz was charged with distinct acts of possession. Indeed, possession is presumed continuous absent specific evidence that the defendant lost possession at some point. See, e.g., United States v. Horodner, 993 F.2d 191, 193 (9th Cir.1993) (explaining that “possession” is a course of conduct, not an act, and holding that the defendant retained possession of a firearm throughout a ten day period even when the firearm was in a repair shop); United States v. Jackson, 479 F.3d 485, 491 (7th Cir.2007) (holding that no unanimity instruction was required where “the indictment charged not multiple offenses under one count of being a felon in possession, but a single course of illegal conduct that spanned three days”).

Indeed, consistent with Schad, the jurors were free to convict on whichever evidence they believed supported Ruiz's guilt beyond a reasonable doubt, even if they failed to reach agreement on which pieces of evidence were ultimately persuasive. 501 U.S. at 631–32, 111 S.Ct. 2491;see also United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir.1983) (concluding, where the defendant was charged with one count of possession with intent to distribute LSD within a three month period, that “the various acts indicating knowing possession were not inconsistent with each other; and even if one set of jurors might have focused on one part of the transaction while another set focused on a different part, it does not follow that either set of jurors were in disagreement with the other”); cf. United States v. Payseno, 782 F.2d 832, 837 (9th Cir.1986) (holding that a specific unanimity instruction was required where the indictment charged three acts of extortion which were “directed at separate victims, occurred at different times and different locations, involved different methods of communicating the threats, and were carried out by varying numbers of individuals”).

Because Ruiz was charged with a single, continuous act of possession over a ten-minute period, we find no error in the district court's failure to give a specific unanimity instruction.

B. Prosecutorial Misconduct

To highlight parts of his closing argument, the prosecutor utilized a PowerPoint slide presentation consisting of pictures of the alleged crime scene, photographs of the witnesses who testified at trial, summaries of the testimony presented, and visual representations of the jury instructions, and of the government's key arguments. Following a slide depicting the first element of the offense—“the defendant knowingly possessed the firearm or ammunition”—were three slides depicting alternative “way[s] to find defendant guilty.” The slides stated that the jurors could find Ruiz not guilty “only” if they found that Officers Peck and Ludikhuize “lied to you” and that the Fuentes sisters were mistaken. The court overruled Ruiz's objection to the slides.

“Where defense counsel objects at trial to acts of alleged prosecutorial misconduct, we review for harmless error on defendant's appeal; absent such an objection, we review under the more deferential plain error standard.” United States v. Wright, 625 F.3d 583, 610 (9th Cir.2010) (internal quotation marks and citation omitted). Of the four variants of misconduct that Ruiz challenges on appeal, he objected at trial only to the prosecutor's argument that, in order to find Ruiz not guilty, jurors would have to conclude that Officers Peck and Ludikhuize lied. Accordingly, we review the ‘someone must be lying’ statements for harmless error, and the remainder of the challenged statements for plain error.

1. ‘Someone Must Be Lying’ Statements

Under harmless error review, claims of prosecutorial misconduct are “viewed in the entire context of the trial,” and reversal “is justified only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial.” United States v. Younger, 398 F.3d 1179, 1190 (9th Cir.2005) (internal quotation marks and citations omitted). At the heart of Ruiz's argument is his contention that the prosecutor's statements presented the jury with a false choice...