Monday, July 27, 2009
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Ninth Circuit Hits Prosecutor’s Use of Ethnic Stereotypes
But Panel Says Evidence of Personal Culpability Was Sufficient to Uphold Convictions
By KENNETH OFGANG, Staff Writer
Evidence regarding the roles traditionally played by members of certain ethnic groups in the pseudophedrine pill trade was improperly admitted in the trial of three men of Middle Eastern descent and one from Mexico, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel, however, affirmed the defendants’ convictions on trafficking and weapons charges, holding that the properly admitted evidence was so strong the jury would have undoubtedly found them guilty even if it had not heard the inappropriate testimony.
Michael Nobari, Eddy George, Edison Shino and Rito Zazueta are serving prison terms of between 170 and 300 months after the jury, in U.S. District Court in Fresno, found all of them guilty of conspiring and attempting to possess pseudophedrine in order to manufacture methamphetamine, and also found Nobari and Zazeueta guilty of possessing a firearm in furtherance of a drug trafficking crime.
The four were arrested in Turlock in November 2003 by agents of the Drug Enforcement Administration and the Fresno Methamphetamine Task Force. The agents testified the defendants attempted to purchase 22 seven-gallon buckets of pseudophedrine pills from an undercover officer, in a transaction that was arranged after George told an informant that he had pills to sell.
According to the testimony, the defendants came to a McDonald’s parking lot to buy the pills, for which they had been quoted a price of $70,000. When the agent realized that the men only brought $20,000 to the meeting, he alerted his supervisor by cell phone that a potentially violent “rip-off” might be in progress, and nearby officers were sent in to make the arrests.
All of the defendants except Zazueta are of Middle Eastern descent. During their trial before U.S. District Judge Oliver Wanger, George’s lawyer called the informant to testify in support of George’s claim that he was entrapped.
After the informant acknowledged that he was a defendant in an earlier case in which his co-defendants were “Middle Easterns,” the prosecutor asked a series of questions as to what roles Middle Easterners and others play in the business. The witness explained in response that Mexicans are employed as “cooks” and that Middle Easterners act as brokers, bringing pills in from Canada.
A DEA agent from Chicago—a common distribution point for pills destined for the West Coast—gave similar testimony, explaining that “the individuals handling the pseudoephedrine are of Middle Eastern descent and they talk about trying to get the pseudoephedrine to California,” and that once the drugs arrive in the state, they are “given to a Mexican cook and...converted with other chemicals into methamphetamine.”
Wanger denied a defense motion to strike the testimony, but admonished jurors that the testimony should not be considered “to suggest that any particular ethnic group or person of a particular racial origin have these characteristics or tendencies or that...a person’s ethnicity...has anything to do with whether he or she is likely or not likely to engage in criminal activity.”
In closing argument, the prosecutor said it was “significant” that three of the defendants were of Middle Eastern descent and that one was Mexican.
Judge Richard Clifton, writing for the Ninth Circuit, said the testimony and argument represented a form of ethnic stereotyping that the Ninth Circuit and other courts have said is improper.
“The prosecution’s syllogism reduced, in essence, to this: (1) Middle Easterners typically are pseudoephedrine pill brokers, and Mexicans typically obtain the pills and cook methamphetamine; (2) Nobari, George, and Shino are Middle Eastern, and Zazueta is Mexican; (3) therefore, Nobari, George, and Shino played the role of pill brokers, and Zazueta was the cook,” Clifton explained.
He distinguished United States v. Santiago, 46 F.3d 885 (9th Cir. 1995), which Wanger referred to in his order denying the defendants’ new trial motion. The Santiago court found no constitutional violation in a trial that included references to the “Mexican Mafia” and “Latin Kings” and testimony about the defendant’s presence at a prison recreation center for Mexican Americans and the large number of Hispanics whose blood type matched that of the defendant.
“The facts of Santiago have little in common with those here,” Clifton wrote. “Santiago featured ethnic terms exclusively in the context of explaining relevant facts, while the present case includes repeated discussion of ethnic role stereotypes in the methamphetamine trade, introduced by the prosecution in a manner that may have encouraged the jury to view the defendants as fitting an ethnic-based pattern of criminal activity.”
Clifton acknowledged that the testimony had some relevance, as a way of explaining ethnic references in the recordings of George’s conversations with the informant, but said the probative value was “minimal” and was substantially outweighed by the risk that the jury would use it to convict the defendants on the basis of their ethnicity rather than on the facts.
The error was harmless beyond a reasonable doubt, however, the judge concluded. He noted that all four defendants were present when the attempted purchase took place; that George was “caught red-handed” trying to buy drugs, was heard on tape talking about prior transactions, and could muster nothing better than a meritless entrapment defense to explain his actions; and that the other defendants were similarly shown to have been active participants rather than mere bystanders.
Nobari, Clifton pointed out, actively participated in the discussions about the quantity of pills to be purchased and his desire to “keep making money,” and was armed at the time Shino drove to the site in a truck owned by a convicted drug dealer and handed George a bag of money, and Zazueta was a passenger in the truck, was carrying a loaded handgun with a laser sight, and was identified by George to the undercover agent as wanting to buy the drugs.
Judges Ronald M. Gould and Jay S. Bybee joined in the opinion.
The case is United States v. Nobari, 06-10465.
Copyright 2009, Metropolitan News Company