Opinion
CR. No. 08-1370 JH.
March 13, 2009
FEDERAL PUBLIC DEFENDER, Las Cruces, New Mexico.
By: /s/ Dennis J. Candelaria, Assistant Federal Public Defender.
MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 1 PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 29
COMES NOW, the Defendant, David Ramos-Arenas, by and through his attorney, Dennis J. Candelaria, Assistant Federal Public Defender, and respectfully moves this Court for a Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29, on the grounds that the Government has failed to present sufficient evidence that Mr. Ramos-Arenas (Mr. Ramos) falsely assumed or pretended to be an officer or an employee acting under the authority of the United States or any department. As grounds, Defendant states:
1. Mr. Ramos is accused of, in Count 1 of the Indictment, falsely assuming and pretending to be an officer and employee acting under the authority of the United States or any department, agency or office, thereof, that is, a United States Border Patrol Agent, and acted as such, and in such pretended character, with the intent to defraud, obtained a thing of value contrary to 18 U.S.C. § 912. Emphasis added
The government presented evidence that Mr. Ramos was a passenger in a vehicle that was driven by Rebecca Padilla. Ms. Padilla was stopped by the New Mexico State Trooper, George Bernal, for speeding. Initially, Trooper Bernal was going to give Ms. Padilla a citation for speeding with a penalty assessment of $150.00. Mr. Ramos was sitting in the passenger seat in civilian clothes. Mr. Ramos did not possess a service weapon, a badge, nor was he wearing anything that would identify him as being a United States Border Patrol Agent currently on duty. After a conversation with Mr. Ramos, Trooper Bernal issued a warning to Ms. Padilla.
2. The issues in this case focus on (1) whether Mr. Ramos was acting under the color of law when Trooper Bernal issued a warning to Ms. Padilla and (2) whether Mr. Ramos demanded or received a thing of value.
3. Federal Rule of Criminal Procedure 29(a) provides that "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence in insufficient to sustain a conviction."
4. A district court considering a motion for a judgment of acquittal must determine. "whether, after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Supreme Court stated in Smith v. Massachusetts, that "the Rule 29 judgment of acquittal is a substantive determination that the prosecution has failed to carry its burden." 543 U.S. 452, 468 (2005). The Court may not weigh conflicting evidence or consider the credibility of any witnesses. See Burks v. United States, 437 U.S. 1, 16 (1978). At the same time, the evidence supporting the conviction "must be substantial and must not raise a mere suspicion of guilt." United States v. Brown, 995 F.2d 1493, 1502 (10th Cir. 1993) (citing United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987)). Acquittal is proper if the evidence is "so meager that no reasonable jury could find guilt beyond a reasonable doubt." White, 673 F.2d at 301. A conviction cannot be sustained if obtained by "piling inference on inference." United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995).
5. To prove the first count in the indictment, the government must prove that Mr. Ramos acted under the authority of the United States. Among other elements, the government must prove that Mr. Ramos was acting as a Border Patrol Agent when he was stopped by Trooper Bernal. See Tenth Circuit Pattern Jury Instructions-Criminal, No. 2.40 (2005). In other words, to meet its burden, the government must prove element one which states that the "defendant falsely assumed t be an officer and employee acting under the authority of the United States." Without any evidence to support a reasonable inference of Mr. Ramos acting under color of law, there is insufficient evidence to sustain a conviction.
In United States v. York, 202 F.Supp. 275 (E.D.Va. 1963), a young lady falsely claimed in an application for credit at a department store that she was employed by the FBI. The district court held that the statute did not apply to her conduct. "Now it must be admitted that Clara pretended to be an employee of an agency of the United States. But did she pretend to be an officer or employee acting under the authority of an agency of the United States? Obviously she did not. She was acting on her own because like most women she wanted another dress and she did not pretend to be buying the dress for the United States or in any way authorized by the United States to buy the dress. That conclusion is enough to determine the case. But I think it is also clear under the circumstances that she did not `in such pretended character * * * obtain' the dress which is the second fact which must be proved to establish a crime under the second branch of the section. She did not ask the credit manager for credit because she was an employee of the F.B.I. and she was in no sense acting in the pretended character of an employee of the F.B.I. She had asked for the dress and for credit before the question of employment ever came up. She merely thought that she would be more apt to get the dress if she stated that she had some employment and her status as an applicant for a job with the F.B.I. was the nearest thing to a job that she had.
To sustain the government's case the statute would have to read that if a person falsely represents that he is an employee of the United States and, after having done so, procures from the person to whom such representation was made anything of value he is guilty of a crime. But this is to read out of the statute the required pretense of `acting under the authority of the * * * agency' and also the words `in such pretended character.' I cannot so read the statute and consequently judgment will be entered for the defendant." 202 F.Supp. at 276.
6. There is no evidence, that Mr. Ramos was acting under the authority of the United States Border Patrol. Indeed, the government did not provide any evidence that Mr. Ramos was acting as such or in such pretended character. The evidence is clear that he was not in uniform, he was not carrying a service weapon, he was not requesting Ms. Padilla to break the speed limit in order to help the Border Patrol. Thus, a judgment of acquittal should be entered on the conspiracy charge.
7. To obtain a conviction for Count 1 of the indictment, the government must prove beyond a reasonable doubt element three. Element three of Count 1 reads that "the defendant knew that such assumption or pretended character, the defendant demanded and obtained a thing of value." See Tenth Circuit Pattern Jury Instructions-Criminal, No. 2.40 (2005).
8. There is no evidence that Mr. Ramos demanded that Trooper Bernal give Ms. Padilla a warning in place of a citation. There is no evidence that Mr. Ramos has received or obtained a thing of value. In the present case, it was Ms. Padilla who received a thing of value. It was Ms. Padilla that received the benefit of receiving a warning.
9. The evidence in this case is insufficient to prove beyond a reasonable doubt that Mr. Ramos was acting under the authority of the United States. The evidence is also insufficient to prove beyond a reasonable doubt that Mr. Ramos demanded nor obtained a thing of value.
WHEREFORE, Mr. Ramos respectfully requests that this Court grant the relief requested herein.