United States v. Ruiz, Jr., No. 10-50211 (9th Cir. 2013)
Annotate this CaseDefendant appealed his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g). Because defendant was charged with a single, continuous act of possession over a ten-minute period, the court found no error in the district court's failure to give a specific unanimity instruction. The court concluded that the majority of the prosecutor's statements during closing argument were not improper, and that those that were improper did not result in substantial prejudice. Accordingly, the court affirmed the conviction.
Court Description: Criminal Law. The panel affirmed a conviction for being a felon in possession of a firearm and ammunition in a case in which the defendant asserted, among other things, that the district court erred in failing to give the jury a specific unanimity instruction and that the prosecutor committed misconduct in his closing argument. The panel held that the indictment was not duplicitous and the district court did not err in failing to give a specific unanimity instruction, where the defendant was charged with a single, continuous act of possession over a ten-minute period. Because any error was harmless, the panel did not decide whether the prosecutor’s argument – that in order to find the defendant not guilty, jurors would have to conclude that police officers lied – altered the burden of proof. Reviewing additional allegations of prosecutorial misconduct for plain error, the panel held that the prosecutor’s statement that the jury should convict “on the basis of what the United States considers is overwhelming evidence that the defendant is guilty” was improper vouching, but that the error was not prejudicial. The panel held that the defendant’s additional allegations of misconduct were meritless. Concurring, Judge Pregerson wrote that the prosecutor struck foul blows by repeatedly telling the jury that they could acquit only if they found that both officers were liars, which distorts the burden of proof and misstates the law, but is condoned by harmless error review.
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