United States v. Ramirez, No. 11-50346 (9th Cir. 2013)
Annotate this CaseDefendant appealed his conviction for distribution, possession with intent to distribute, and conspiracy to distribute methamphetamine. The court held that the district court did not abuse its discretion by failing to deliver a "missing witness" instruction; the district court erred by sua sponte instructing the jury not to "speculate" as to why the witness was absent; the sua sponte instruction was harmless with regards to the charges of distribution and possession with intent to distribute; the court did not need to decide whether the district court's sua sponte instruction had a prejudicial effect on the conspiracy charge because the court reversed the conspiracy conviction on other grounds; even viewing the evidence in the light most favorable to the government, there was no such agreement between defendant and someone else to distribute meth; therefore, the evidence was insufficient to convict defendant of this offense; and the court rejected defendant's contention that the judge should not have imposed a sentencing enhancement under 21 U.S.C. 841(b). Accordingly, the court vacated the conspiracy conviction, remanded to the district court to grant a judgment of acquittal on that count alone and to conform the sentence accordingly, and affirmed the remainder of defendant's convictions and sentence.
Court Description: Criminal Law. The panel vacated a conspiracy conviction, affirmed convictions for distribution and possession with intent to distribute methamphetamine, and remanded in a case in which the district court instructed the jury not to speculate as to why the government did not call as a witness a go-between in the defendant’s drug sales to an undercover agent. The panel held that the district court did not abuse its discretion by failing to deliver a “missing witness” instruction informing the jury that it could conclude that the government did not call the go-between as a witness because his testimony would have hurt the government case. The panel held that the district court did err by sua sponte instructing the jury not to “speculate” about the reasons for the go-between’s absence as a witness. The panel wrote that by labeling the inference about the reasons for the go- between’s absence as “speculation” and instructing the jury not to credit it, the judge put off-limits a legitimate inference that could have been helpful to the defense. The panel held that the error was harmless with regards to the charges of distribution and possession with intent to distribute. The panel held that there was insufficient evidence to support the conspiracy charge because there was no evidence of an agreement between the defendant and someone else to distribute meth. The panel rejected the defendant’s contention under United States v. Buckland, 289 F.3d 558 (9th Cir. 2002), that the district court shouldn’t have imposed a sentencing enhancement under 21 U.S.C. § 841(b) because the indictment didn’t allege, and the jury didn’t find beyond a reasonable doubt, that he had a prior drug felony. The panel wrote that nothing in Buckland, which dealt only with the “material fact[s]” of drug type and quantity, suggests that its construction of section 841(b) applies to the fact of a prior conviction.
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