Federal judges had better be careful when they instruct jurors not to “speculate.” A San Diego judge, without being asked by the government, “effectively instructed the jury not to fall for defense counsel’s argument,” the 9th U.S. Circuit Court of Appeals wrote Monday, in a drug case.
Unfortunately for the defense, the misstep by U.S. District Judge Jeffrey Miller did not rise to a constitutional level.
The appeals court overturned a drug conspiracy charge on an alternate ground of lack of evidence of a conspiracy, but did uphold a methamphetamine possession and possession with intent to sell charges.
The defense had based its case on lack of evidence and pointed to the government’s failure to call its main witness in the case. Jurors were not told why the witness was absent nor that he agreed to testify.
Michael Ramirez was accused of using Andres Bejaran as a go-between with an undercover agent buying methamphetamine. Bejaran would direct the agent to a secret location then take cash to Ramirez, who was waiting nearby, and exchange the cash for meth. After four sales the agent ended the sting operation by arresting both men.
Bejaran never testified at Ramirez’ trial, but the defense did establish that he was arrested and pled guilty.
The defense argued Bejaran was the government’s best witness and could have “filled in the holes for you” but he was not called.
The defense asked for a “missing witness” instruction, which would tell jurors they could conclude that the government’s failure to call the witness was because his testimony would hurt the government’s case.
Instead, U.S. District Judge Miller told jurors that although the witness was not called there was no evidence before them about why he was absent and “you should not speculate as to any reason.”
The government seems to have had a good reason not to call Bejaran as a witness. Between the time he agreed to testify and the trial, Bejaran was jumped by two inmates and hospitalized with permanent brain damage, according to the opinion.
The judge could have concluded the government did not call him because it feared he would be an ineffective witness, according to Chief Judge Alex Kozinski. But Judge Miller went beyond refusal to give an absent witness instruction and told jurors don’t speculate — in essence, don’t believe the defense.
“It is the government’s job, not the court’s, to make sure the jury doesn’t draw incorrect inferences,” Kozinski said.
Nonetheless, the error did not merit reversal because “there was simply no plausible alternative” to explain why Ramirez was at the site of the drug deals at the right time. In fact, when the police arrested Ramirez he was sitting in his car with Bejaran, $5,200 in cash and four baggies of meth, Kozinski said.
The court reversed the conspiracy charge for government failure to prove Ramirez sold drugs to a buyer who would sell to others. But upheld the convictions on possession of meth and possession for sale. The panel ordered Ramirez to be resentenced based on the reduced charges.
Case: U.S. v. Ramirez, No. 11-50346