U.S. v. Nobari
| Decision Date | 24 July 2009 |
| Docket Number | No. 07-10149.,No. 06-10496.,No. 06-10465.,No. 06-10488.,06-10465.,06-10488.,06-10496.,07-10149. |
| Citation | 574 F.3d 1065 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael C. NOBARI, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Eddy A. George, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Edison Shino, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rito S. Zazueta, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nicholas F. Reyes, Fresno, CA, for defendant-appellant Rito S. Zazueta.
McGregor W. Scott, United States Attorney, and Karen A. Escobar (argued), Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-03-05453-OWW-3, D.C. No. CR-03-05453-OWW-2, D.C. No. CR-03-05453-OWW-4, D.C. No. CR-03-05453-OWW-1.
Before RONALD M. GOULD, RICHARD R. CLIFTON, and JAY S. BYBEE, Circuit Judges.
Michael Nobari, Eddy George, Edison Shino, and Rito Zazueta appeal from their jury trial convictions for conspiracy to aid and abet the manufacture of methamphetamine and attempted illicit possession of pseudoephedrine. Nobari and Zazueta also appeal their convictions for possession of a firearm in furtherance of a drug trafficking crime. Only George appeals the sentence he received.
The defendants raise several claims on appeal, including an allegation that the prosecution improperly presented, as evidence of the defendants' guilt, testimony that drew generalizations on the basis of ethnicity about "Middle Easterners" and "Mexicans." Although we conclude that errors were made at trial in this instance and others, we hold that these errors do not warrant reversing the defendants' convictions, given the strength of the unobjectionable evidence against them. Accordingly, we affirm the convictions. We also affirm George's sentence because the district court neither miscalculated the Guidelines range nor improperly considered the relevant sentencing factors.
Agents of the Drug Enforcement Administration (DEA) and the Fresno Methamphetamine Task Force arrested Nobari, George, Shino, and Zazueta after they attempted to purchase 22 buckets of pseudoephedrine pills from an undercover agent on November 20, 2003, in Turlock, California. George arranged the drug transaction. To do so, he communicated first with a confidential informant for the government ("Informant"), and subsequently with an undercover DEA agent ("Agent"). On the day before the attempted purchase, George agreed to buy 200 cases of pseudoephedrine pills from the Agent for a price of $400,000.
The next day, George and Nobari arrived together in George's vehicle at a McDonald's parking lot in Turlock, met the Agent there, and arranged the pseudoephedrine pill transaction. The Agent later showed George and Nobari the contents of an Enterprise rental truck, which held approximately 22 seven-gallon buckets filled with pseudoephedrine pills (each bucket the equivalent of five cases of pills). The Agent indicated that the price per bucket was $10,000. George and Nobari then left the parking lot to "talk to[their] people" and obtain the purchase money, and they drove to Shino's residence where they met with Shino and Zazueta. All four defendants later drove to the McDonald's parking lot. Once there, Shino handed George a bag of money containing $20,000 in cash. George and the Agent then entered George's vehicle to look at the money, which was less than the $70,000 that the Agent testified he had been promised. Believing he was the victim of a "rip-off" that might turn violent, the Agent called his supervisor from a cell phone. In light of the perceived danger, assisting officers were immediately summoned to arrest the defendants.
All four defendants were indicted on charges of conspiring to aid and abet the manufacture of methamphetamine and to possess pseudoephedrine knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (c)(2), 846 (Count One); attempting to possess pseudoephedrine knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2), 846 and 18 U.S.C. § 2 (Count Two); and possessing a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three).
After a ten-day trial, a jury found each defendant guilty on Counts One and Two (the drug charges). The jury also convicted Nobari and Zazueta on Count Three (possession of a firearm in furtherance of drug trafficking crimes), but acquitted George and Shino of that charge. The district court denied the defendants' subsequent motions for a new trial. The court sentenced George, the only defendant to challenge his sentence on appeal, to a prison term of 170 months. Nobari received a sentence of 181 months, Shino was sentenced to 190 months, and Zazueta received 300 months.
All four defendants claim that the prosecution violated their constitutional rights to due process, equal protection, an impartial jury, and a fair trial by eliciting testimony about the roles that "Middle Easterners" and "Mexicans" typically play in the pseudoephedrine pill trade and by subsequently linking these "ethnic generalizations" to the defendants. Nobari, George, and Shino, who are of Middle Eastern descent, and Zazueta, who is of Mexican descent, assert that the government improperly "argued ethnicity as evidence of guilt."
The prosecution broached the subject of which ethnic groups ordinarily occupy certain positions in the pseudoephedrine trade in its cross-examination of the Informant, who was called as a defense witness by George's attorney to support George's claim of entrapment. On cross-examination, the government sought to neutralize efforts by the defense to impeach the Informant. At one point during his testimony on cross-examination, the Informant referred to his codefendants from a previous case as "Middle Easterns." The prosecution used this reference to launch the following set of questions:
Q. And speaking of Middle Easterns, based on your experience in the pill business, what—are there Middle—I mean, do you—did you conduct business with Middle Easterns?
A. Mexicans.
Q. In what capacity did you know Mexicans?
A. Cooks.
Q. Have you ever known, in the—your pill trafficking, Middle Easterners to actually cook?
A. There isn't a Middle Eastern that cooks, no.
Q. What primarily do the Middle Easterns —
A. We bring it from Canada to Chicago to California.
Q. Do the Middle Easterners serve primarily as pill brokers?
A. Brokers, yes.
Q. And in your experience, the Mexicans, as they were referred to even in these conversations with Eddy George, based on your experience they would be the people involved in actually extracting the ephedrine from the pills to make the methamphetamine?
A. They're the cookers, that's their secret. You know, they never let us know their secret of cooking. That's who cooks the pseudo and did all the pseudo. They called it cooking.
The defense did not object at the time to this line of questioning.
The prosecution then asked similar questions on direct examination of a DEA agent ("DEA Witness" or "Witness") who had taken part in an earlier phase of the investigation. The following exchange came during a series of questions that the prosecutor asked the Witness to answer on the basis of his "training and experience" as a DEA agent:
Q. Do certain ethnic groups, Mexicans, perform certain roles within the methamphetamine, methamphetamine organization?
A. Based on—based on my experience with the wiretaps and other investigations, the individuals handling the pseudoephedrine are of Middle Eastern descent and they talk about trying to get the pseudoephedrine to California —
...
Q. And what, based on your training and experience in the investigation of methamphetamine labs, is there— what was the role of the Mexicans?
A. The pseudoephedrine would be given to a Mexican cook and it would be converted with other chemicals into methamphetamine.
Q. Based on your training and experience in investigating pseudoephedrine pill cases, [have you] seen Middle Easterners participate in pseudoephedrine pill trafficking?
A. Yes.
Q. A large number?
A. Yes.
Q. And based on your training and experience, what is the role that Middle Easterners play?
A. The cases that I have been involved in, the Middle Easterns were secreting the pseudoephedrine from Canada into the United States with the final destination being California.
Q. And typically, what is the role that they—are they involved directly in the manufacturing process, the Middle Easterners?
A. Based on my experience, the Middle Easterners are simply controlling the pseudoephedrine trade and, as a middle man, and getting the pills to a cook.
Q. Who you have [sic] seen based on your training and experience to be what ethnic background?
A. For which?
Q. The cooks.
A. Of Mexican descent.
The defense did not object to the substance of the DEA Witness's testimony while he was on the stand.
The next morning, before the jury was called, defense counsel moved to strike the testimony of the Witness and the Informant concerning ethnic groups. Rather than strike the testimony, the court gave the following limiting instruction to the jury:
Now, I want you to understand that [the DEA...
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