United States v. Raymond Ruiz, Jr. , 710 F.3d 1077 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 10-50211
Plaintiff-Appellee,
D.C. No.
v. 5:09-cr-00099-
VAP-1
RAYMOND RUIZ, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
December 7, 2011—Pasadena, California
Filed March 26, 2013
Before: Harry Pregerson and Richard A. Paez, Circuit
Judges, and Suzanne B. Conlon, District Judge.*
Opinion by Judge Paez;
Concurrence by Judge Pregerson
*
The Honorable Suzanne B. Conlon, United States District Judge for the
Northern District of Illinois, sitting by designation.
2 UNITED STATES V . RUIZ
SUMMARY**
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . RUIZ 3
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.
COUNSEL
Brianna J. Fuller, Deputy Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.
Joseph B. Widman, Assistant United States Attorney,
Riverside, California, for Plaintiff-Appellee.
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.
4 UNITED STATES V . RUIZ
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
UNITED STATES V . RUIZ 5
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. DISCUSSION
A. 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,
1
Ruiz also argues (1) that the district court erred by limiting cross-
examination of Officer Ludikhuize regarding a previous incident where
his training and experience led him to arrest an innocent person, (2) that
the district court erred by failing to give a cautionary jury instruction prior
to the readback of Officer Verbanic and Ludikhuize’s testimony, and (3)
that cumulative error warrants a new trial. These contentions are without
merit. The district court’s limitation on defense counsel’s cross-
examination of Officer Ludikhuize did not violate Ruiz’s rights under the
Confrontation Clause because Ludikhuize’s past misidentification of
cocaine was not relevant, and the jury had sufficient evidence to assess his
credibility. See United States v. Larson, 495 F.3d 1094, 1103–04 (9th Cir.
2007) (en banc); United States v. Bridgeforth, 441 F.3d 864, 868 (9th Cir.
2006). Likewise, although it was plain error for the district court to permit
readback of Officers Verbanic and Ludikhuize’s rebuttal testimony
without a cautionary instruction, the error was not prejudicial in light of
the substantial evidence against Ruiz. See United States v. Stinson,
647 F.3d 1196, 1217–18 (9th Cir. 2011), cert. denied,132 S. Ct. 1768 and
cert. denied, 132 S. Ct. 1773, reh’g denied, 132 S. Ct. 2427 (2012); United
States v. Newhoff, 627 F.3d 1163, 1169 (9th Cir. 2010). Finally, since the
errors that occurred at trial were isolated, reversal for cumulative error is
not warranted. See United States v. Del Toro-Barboza, 673 F.3d 1136,
1155 (9th Cir.), cert. denied, 133 S. Ct. 586 and cert. denied, 133 S. Ct.
588 (2012); United States v. Inzunza, 638 F.3d 1006, 1024–25 (9th Cir.
2011), cert. denied, 132 S. Ct. 997 (2012); United States v. Frederick,
78 F.3d 1370, 1381 (9th Cir. 1996).
6 UNITED STATES V . RUIZ
(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 (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 (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
UNITED STATES V . RUIZ 7
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. Horodoner, 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
2
Anguiano found three situations in which the possibility of juror
confusion may require a unanimity instruction: (1) the jury actually
indicates that it is confused, (2) the indictment is so broad and ambiguous
that it may confuse the jury, or (3) the evidence is so factually complex
that juror confusion may occur. See Anguiano, 873 F.2d at 1319–20.
None of these circumstances existed here.
8 UNITED STATES V . RUIZ
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; 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
UNITED STATES V . RUIZ 9
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
10 UNITED STATES V . RUIZ
false choice between his and the officers’ accounts, since the
officers could have testified honestly, but nonetheless
mistakenly perceived the events on the night in question.
This false choice, he asserts, improperly shifted the burden of
proof to the defense.
As we have previously explained, “credibility is a matter
to be decided by the jury.” United States v. Sanchez,
176 F.3d 1214, 1224 (9th Cir. 1999). To that end,
“prosecutors have been admonished time and again to avoid
statements to the effect that, if the defendant is innocent,
government agents must be lying.” Id. (citation and internal
quotation marks omitted). “It is also true, however, that the
prosecution must have reasonable latitude to fashion closing
arguments. Inherent in this latitude is the freedom to argue
reasonable inferences based on the evidence. In a case that
essentially reduces to which of two conflicting stories is true,
it may be reasonable to infer, and hence to argue, that one of
the two sides is lying.” United States v. Molina, 934 F.2d
1440, 1445 (9th Cir. 1991) (citing United States v. Laurins,
857 F.2d 529, 539 (9th Cir. 1988) (holding that the
prosecutor’s statement that defendant was a liar could be
construed as a comment on the evidence) and United States
v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) (“It is neither
unusual nor improper for a prosecutor to voice doubt about
the veracity of a defendant . . . .”));3 see also United States v.
3
In Molina, we found the following statements permissible, where the
defendant’s testimony flatly contradicted that of a government witness: (1)
“[Y]ou could only come to one conclusion: That somebody is lying. And
who is that? W ho’s lying? Is Special Agent Reyes lying?”; (2) “The one
who lied to you is the one who is guilty of possessing with the intent to
distribute the cocaine. And that’s the defendant, Frank Molina.”; and (3)
“So when you go back into the jury room remember . . . that Mr. Molina
lied to you on the stand and remember that the reason he lied to you is
UNITED STATES V . RUIZ 11
Wilkes, 662 F.3d 524, 539–42 (9th Cir. 2011) (same); United
States v. Tucker, 641 F.3d 1110, 1120–21 (9th Cir. 2011)
(“Prosecutors can argue reasonable inferences based on the
record, and have considerable leeway to strike hard blows
based on the evidence and all reasonable inferences from the
evidence. A prosecutor may express doubt about the veracity
of a witness’s testimony [and] may even go so far as to label
a defendant’s testimony a fabrication.” (alteration in original)
(internal quotation marks and citations omitted)).
We addressed a similar contention in United States v.
Wilkes. In that case, the defendant asserted that prosecutors
engaged in improper burden-shifting by characterizing his
testimony as a “preposterous charade” and arguing in closing
that “each [government witness], if you think about their
testimony and what they told you, you either have to believe
all of those people or you believe Brent Wilkes. That’s the
choice before you. You can’t believe both.” 662 F.3d at 541(alteration in original). The court rejected this assertion,
reasoning that, because the case “‘reduce[d] to which of two
conflicting stories is true,’” the prosecutor’s argument was a
permissible inference from the evidence. Id. (quoting
Molina, 934 F.2d at 1145). The court further noted that the
“prosecution made the alleged improper statement after
explaining at length to the jury what it had to prove in order
for the jury to find Wilkes guilty. In this context, such a
statement is considered to be nothing more than an ‘isolated
moment’ in a 28-day trial.” Id. (citing United States v.
Moreland, 622 F.3d 1147, 1162–63 (9th Cir. 2010)).
because he is guilty, and that’s the only reason and the only motivation for
him to lie.” 934 F.2d at 1445 (alterations in the original) (emphasis
omitted).
12 UNITED STATES V . RUIZ
United States v. Tucker is also instructive. In that case,
the prosecutor listed various facts that the jury would have to
find if it were to determine that the defendant was not guilty.
641 F.3d at 1122. The court rejected the defendant’s
argument that the prosecutor thereby improperly shifted the
burden of proof, reasoning that the prosecutor’s comments
“were made in the context of explaining why the jury should
reject Tucker’s version of events, and only after the
prosecutor already had said that the government was required
to prove beyond a reasonable doubt that Tucker was guilty of
possession of a firearm. . . . While the prosecutor’s phrasing
was inartful, his meaning is evident from context: to believe
the defendant’s account, the jury would have to believe
implausible aspects of his testimony. This sort of
argumentation is permissible.” Id. (emphasis original) (citing
United States v. Vaandering, 50 F.3d 696, 701–02 (9th Cir.
1995)).
Here, the prosecutor’s argument came very close to
altering the burden of proof. Although Ruiz’s testimony was
squarely at odds with Officer Ludikhuize’s testimony in one
key respect—namely, Ruiz denied confessing to Ludikhuize
that he was attempting to hide the shotgun when police
arrived—his testimony vis-a-vis Officer Peck’s observation
of an item thrown over the fence into the adjoining vacant lot
was somewhat more equivocal. Ruiz testified that, upon
observing Peck’s spotlight trained on his grandmother house,
he attempted to hide because he was drinking beers with his
father in violation of his parole. To this end, he ran around
the side of the house, where he stated that he may have
thrown his beer bottle into the backyard adjoining the fence
and vacant lot, but could not recall with certainty how he
disposed of the beer bottle. Although Ruiz also testified that
he did not throw “anything” over the fence, including the
UNITED STATES V . RUIZ 13
“panel” or shoe box-sized item that Peck observed, Peck
could have mistaken the size and shape of the item thrown
from his vantage point nearly two football fields above the
scene. As the foregoing suggests, the prosecutor’s argument
that either Peck or Ruiz must be lying could well be
construed as arguing an inference unsupported by the
evidence, and thereby altering the burden of proof.
We need not decide the issue, however, because we
conclude that, even if the prosecutor committed error, the
error was harmless. Like in Wilkes and Tucker, the
prosecutor made his ‘someone must be lying’ argument
following a lengthy explanation of the elements that the
government was required to prove, and a reminder to the jury
of the government’s burden of proof. Although Ruiz’s trial
was significantly shorter than Wilkes’s and the prosecutor’s
comments cannot reasonably be considered isolated, the
government’s evidence of Ruiz’s guilt was substantial: it
included the 12-gauge shotgun recovered from the scene, the
shoe box containing 12-gauge ammunition recovered by
Officer Porch as directed by Officer Peck, and the testimony
of numerous witnesses identifying Ruiz as possessing the
ammunition or shotgun during the night in question. In light
of the strength of this evidence, the prosecutor’s argument did
not materially affect the fairness of Ruiz’s trial. See Younger,
398 F.3d at 1190; United States v. Nobari, 574 F.3d 1065,
1083 (9th Cir. 2009) (“While we remain troubled . . . by the
prosecution’s [improper argument], we cannot conclude that
the defendants were prejudiced by these actions, in light of
the overwhelming evidence against them. Accordingly, . . .
we hold that the errors committed at the defendants’ trial
were harmless beyond a reasonable doubt, and we uphold
their convictions.”); United States v. Bashaw, 509 F.2d 1204,
1206 (9th Cir. 1975) (per curiam) (finding prosecutorial
14 UNITED STATES V . RUIZ
misconduct harmless “in light of the . . . fact that the evidence
of [defendant’s] guilt was overwhelming”).
2. Additional Allegations of Misconduct
Under plain error review, we will reverse Ruiz’s
conviction only if the government’s statements were
improper and the statements resulted in substantial prejudice.
United States v. Koon, 34 F.3d 1416, 1445 (9th Cir. 1994),
aff’d in part, rev’d in part on other grounds, 518 U.S. 81(1996). “Even if both prongs of the test are met, the plain
error doctrine authorizes the Courts of Appeals to correct
only particularly egregious errors . . . that seriously affect the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Sanchez, 659 F.3d 1252, 1256
(9th Cir. 2011) (alteration in original) (internal quotation
marks and citations omitted).
“Improper vouching ‘consists of placing the prestige of
the government behind a witness through personal assurances
of the witness’s veracity, or suggesting that information not
presented to the jury supports the witness’s testimony.’”
Younger, 398 F.3d at 1190 (quoting United States v. Leon-
Reyes, 177 F.3d 816, 822 (9th Cir. 1999) (internal citation
and quotation marks omitted)). There is “no bright-line rule
about when vouching will result in reversal. Rather, we
consider a number of factors including: the form of vouching;
how much the vouching implies that the prosecutor has
extra-record knowledge of or the capacity to monitor the
witness’s truthfulness; any inference that the court is
monitoring the witness’s veracity; the degree of personal
opinion asserted; the timing of the vouching; the extent to
which the witness’s credibility was attacked; the specificity
and timing of a curative instruction; the importance of the
UNITED STATES V . RUIZ 15
witness’s testimony and the vouching to the case overall.
When reviewing for plain error, we then balance the
seriousness of the vouching against the strength of the
curative instruction and closeness of the case.” United States
v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).
Ruiz argues that the prosecutor improperly commented on
the strength of the evidence by describing it as
“overwhelming” on five separate occasions, suggesting that
the case was “not rocket science,” and stating that Ruiz’s
theory of defense seemed “made up.” A prosecutor “has no
business telling the jury his individual impressions of the
evidence.” United States v. Kerr, 981 F.2d 1050, 1053 (9th
Cir. 1992); see also United States v. McKoy, 771 F.2d 1207,
1210–11 (9th Cir. 1985) (“The rule that a prosecutor may not
express his personal opinion of the defendant’s guilt or his
belief in the credibility of witnesses is firmly established.”);
United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir.
1970) (concluding that the prosecutor engaged in improper
vouching when he stated, “I don’t know of a case where the
evidence has been as strong as it has been in this case to
establish the guilt of any defendant”).
Here, the majority of the prosecutor’s argument was
proper. In two instances, for example, the prosecutor
characterized the evidence as overwhelming in an effort to
explain why officers at the scene did not take additional
16 UNITED STATES V . RUIZ
investigatory steps.4 These statements represent reasonable
inferences from the evidence. See Younger, 398 F.3d at 1190.
Nonetheless, 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” exceeded mere inference; indeed, the prosecutor
suggested to the jury that he offered an expert assessment of
the strength of the government’s case, in light of his training
and expertise in criminal prosecutions. This was improper
vouching. See McKoy, 771 F.2d at 1210–11.
On balance, however, we conclude that the error was not
prejudicial. An “[a]nalysis of the harm caused by vouching
depends in part on the closeness of the case.” United States
v. Frederick, 78 F.3d 1370, 1378 (9th Cir. 1996). Here, as
discussed above, the evidence against Ruiz was substantial.
We therefore cannot conclude that the prosecutor’s improper
vouching affected the fairness of Ruiz’s trial.
Ruiz’s additional contentions are without merit. Although
the prosecutor several times used the words “we know” to
describe the evidence, he did so only to “marshal evidence
actually admitted at trial and reasonable inferences from the
4
The prosecutor first stated, “And there was some references [in defense
counsel’s closing argument] to: Oh, you could have done this other thing,
the investigation was deficient, something along those lines. Ladies and
gentlemen, we heard from the officers. They showed up, routine call,
‘man with a gun:[’] Found overwhelming evidence of guilt. Still
interviewed him, still did the fingerprints, still did the whole thing and
booked. That’s the evidence. There is nothing untoward here.” He later
stated, “The police officers: ‘A man with a gun’ call in the City of San
Bernardino, 10:30 Saturday night, a routine call. As I said, they
immediately found overwhelming evidence of guilt. . . .”
UNITED STATES V . RUIZ 17
evidence, not to vouch for witness veracity or suggest that
evidence not produced would support a witness’s
statements.”5 Younger, 398 F.3d at 1191. Likewise, although
the prosecutor described the officers as “professional[s] . . .
just doing their jobs,” he did not urge the jury to respect the
officers simply because of their titles, nor did he personally
assure the jury of the officers’ veracity.6 There was nothing
improper about these aspects of the prosecutor’s argument.
See Necoechea, 986 F.2d at 1279 (“The prosecutor merely
argued that [the government’s witness] was telling the truth,
an argument the prosecutor had to make in order to convict
Necoechea. These statements do not imply that the
government is assuring [its witness’s] veracity, and do not
reflect the prosecutor’s personal beliefs.”); cf. United States
v. Gracia, 522 F.3d 597, 600 (5th Cir. 2008) (concluding that
the prosecutor engaged in misconduct when he stated, “I’m
going to ask you to respect their efforts as law enforcement
officials and to believe the testimony that they offered.”);
United States v. Garza, 608 F.2d 659, 661 (5th Cir. 1979)
(finding misconduct where the prosecutor stated, “I told you
while ago that I thought Rudy Gonzales over here was a
professional man. And I think these Drug Enforcement
5
For example, the prosecutor stated: (1) “[The Fuentes sisters] saw
[Ruiz] with the shotgun. How do we know that?”; (2) “How do we know
that [Ruiz threw the shoe box with the ammunition]? . . . Officer Peck saw
him do it; but it’s not just that. W e know Officer Peck was correct
because he told the guy on the ground . . . .”; and, (3) “How do we know
[that Ruiz was trying to hide the shotgun]? First of all, it was right at his
feet . . . .”
6
The prosecutor made the following statements: (1) “Officer Peck, a
professional, came across as a professional in this case, doing his job”; (2)
“Officer Ludikhuize, you know, you saw him again today. . . . Just doing
his job”; and, (3) “The police officers . . . were just doing their jobs, just
police officers responding to an emergency call.”
18 UNITED STATES V . RUIZ
Administration people are professionals. . . . He talks about
motive. I think their motives are pure as the driven snow.”).
Finally, the prosecutor’s characterization of the defense’s
case as “smoke and mirrors” was not misconduct. The
prosecutor’s comments were directed to “the strength of the
defense on the merits,” United States v. Nobari, 574 F.3d
1065, 1079 (9th Cir. 2009), and did not amount to an ad
hominem attack on defense counsel. See Williams v. Borg,
139 F.3d 737, 744–45 (9th Cir. 1998) (finding no misconduct
when prosecutor referred to defense’s closing argument as
“trash”); cf. Sanchez, 176 F.3d at 1224 (finding misconduct
where the prosecutor stated, “the defense in this case read the
records and then told a story to match the records. And,
ladies and gentlemen, I’m going to ask you not to credit that
scam that has been perpetrated on you here”).
In sum, we conclude 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.
III. CONCLUSION
For the reasons stated, Ruiz’s conviction is AFFIRMED.
PREGERSON, Circuit Judge, concurring:
The United States Attorney is the
representative not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as
UNITED STATES V . RUIZ 19
compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but
that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of
the law, the twofold aim of which is that guilt
shall not escape or innocence suffer. He may
prosecute with earnestness and vigor --
indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain
from improper methods calculated to produce
a wrongful conviction as it is to use every
legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland,
J.).
I reluctantly join the majority’s opinion, but write
separately to express my views on how this case was
conducted. There was no reason for the prosecutor to push
the envelope and ignore Justice Sutherland’s warning that a
prosecutor “may strike hard blows,” but not “foul ones.” Id.The prosecutor struck foul blows by repeatedly telling the
jury that they could acquit Ruiz only if they found that both
Officer Peck and Officer Ludikhuize were liars. The
prosecutor emphasized his improper statements with
PowerPoint slides that stated: “Only Way Not Guilty: Officer
Peck lied to you” and “Only way not guilty: Officer
Ludikhuize lied to you.”
The prosecutor’s argument relies upon specious
reasoning. The jury could have concluded that the officers
were telling the truth, but still have determined that the
20 UNITED STATES V . RUIZ
evidence put forth by the government was not sufficient to
find the defendant guilty beyond a reasonable doubt. The
prosecutor instead told the jury that to find the defendant not
guilty, it first must find that the two officers lied. This
distorts the burden of proof and misstates the law, but sadly
is condoned by the incantation: “harmless error review.”