United States v. Ramirez

A judge may not preclude jurors from drawing legitimate inferences with the use of instructions that effectively put such inferences off-limits; additionally, prior convictions as sentencing enhancements under 21 U.S.C. § 841(b) are evaluated by a judge under the preponderance of the evidence standard.

Michael Ramirez sold an undercover agent methamphetamine on four occasions, using Andrew Bejaran as a go-between. Both men were arrested, and Bejaran agreed to testify against Ramirez under a plea bargain. The prosecution did not present Bejaran's testimony, and Ramirez's counsel requested a “missing witness” instruction to the jury, which was denied by the district judge. After Ramirez's lawyer addressed Bejaran's absence during summation, the judge instructed the jury sua sponte to “not speculate as to any reason why” the witness was absent. Ramirez was convicted of distribution, possession with intent to distribute and conspiracy to distribute methamphetamine. The Ninth Circuit held the district judge did not abuse his discretion for declining to give the “missing witness” instruction. The panel found that while Bejaran was peculiarly within the government's control, there is not a “natural and reasonable” inference he would have testified against the government. However, the panel held the sua sponte instruction was in error because the word “speculate” instructed the jury to disregard an inference they could legitimately draw. The panel held the error harmless regarding the convictions for distribution and possession with the intent to distribute, as it did not rise to the level of constitutional error. The panel vacated the conspiracy conviction, finding no agreement between Ramirez and another person to distribute methamphetamine. The panel found that the sentencing enhancement under 21 U.S.C. § 841(b) for a prior felony was appropriately imposed; as a prior conviction is determined by a judge by the preponderance of the evidence, not by the jury as an element of the crime. VACATED, REMANDED, and AFFIRMED.