United States v. Raymond Ruiz, Jr.

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. 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…

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.

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 *1080 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…

concurring:

Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629 , 79 L.Ed. 1314 (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 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…