United States v. Ruiz

A unanimity instruction is not required when a conviction is based on a single, continuous act, and a prosecutor’s improper vouching during closing arguments may be harmless error when the evidence of guilt is substantial.

Raymond Ruiz, Jr. was convicted of a single count of felon in possession of a firearm. The conviction arose from an incident where Ruiz was allegedly seen carrying a shotgun, throwing a box later found to contain ammunition for a 12-gauge shotgun, and constructive possession of a 12-gauge shotgun. Ruiz appealed the conviction, claiming that the court erred in failing to give the jury a specific unanimity instruction and that the Assistant United States Attorney (“Attorney”) committed prosecutorial error during closing arguments. The panel found that the lower court had not erred in failing to give the jury a unanimity instruction because the incidents creating the charge of felon in possession of a firearm were a single, continuous act, not separate instances. Further, the panel found that the Attorney had not created substantial prejudice in stating that the jury should find Ruiz guilty “on the basis of what the United States considers is overwhelming evidence that the defendant is guilty.” Although the panel found this to be improper vouching, it was not substantially prejudicial. Even though the panel found error in the Attorney’s statement that in order to conclude Ruiz was not guilty the jury would have to find that two police officers were lying, the error was harmless. The panel provided that prosecutors are given considerable latitude when arguing their cases, so arguing reasonable inferences based on the evidence is not substantially prejudicial. AFFIRMED.