United States v. Nobari ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10465
v.  D.C. No.
CR-03-05453-
MICHAEL C. NOBARI, OWW-3
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10488
v.  D.C. No.
CR-03-05453-
EDDY A. GEORGE, OWW-2
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10496
v.  D.C. No.
CR-03-05453-
EDISON SHINO, OWW-4
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 07-10149
Plaintiff-Appellee, D.C. No.
v.  CR-03-05453-
RITO S. ZAZUETA, OWW-1
Defendant-Appellant.
 OPINION
9649
9650 UNITED STATES v. NOBARI
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
February 10, 2009—San Francisco, California
Filed July 24, 2009
Before: Ronald M. Gould, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton
9654 UNITED STATES v. NOBARI
COUNSEL
Suzanne A. Luban (argued), Oakland, California, for
defendant-appellant Michael C. Nobari; Roger T. Nuttall
(argued), Nuttall & Coleman, Fresno, California, for
defendant-appellant Eddy A. George; Carolyn D. Phillips
(argued), Fresno, California, for defendant-appellant Edison
Shino; and Nicholas F. Reyes, Fresno, California, for
defendant-appellant Rito S. Zazueta.
UNITED STATES v. NOBARI 9655
McGregor W. Scott, United States Attorney, and Karen A.
Escobar (argued), Assistant United States Attorney, Fresno,
California, for the plaintiff-appellee.
OPINION
CLIFTON, Circuit Judge:
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 fire-
arm 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 evi-
dence of the defendants’ guilt, testimony that drew general-
izations 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 miscalcu-
lated the Guidelines range nor improperly considered the rele-
vant sentencing factors.
I. Background
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 under-
cover agent on November 20, 2003, in Turlock, California.
9656 UNITED STATES v. NOBARI
George arranged the drug transaction. To do so, he communi-
cated 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 trans-
action. The Agent later showed George and Nobari the con-
tents 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 resi-
dence where they met with Shino and Zazueta. All four defen-
dants 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 dan-
ger, 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 pos-
UNITED STATES v. NOBARI 9657
sessing 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 con-
victed Nobari and Zazueta on Count Three (possession of a
firearm in furtherance of drug trafficking crimes), but acquit-
ted 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 sen-
tence 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.
II. Discussion
A. Challenges to the Convictions
1. Ethnic Generalizations
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 govern-
ment improperly “argued ethnicity as evidence of guilt.”
a. Background
The prosecution broached the subject of which ethnic
groups ordinarily occupy certain positions in the pseudoephe-
drine 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
9658 UNITED STATES v. NOBARI
impeach the Informant. At one point during his testimony on
cross-examination, the Informant referred to his co-
defendants 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 con-
duct 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 traf-
ficking, 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 Califor-
nia.
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?
UNITED STATES v. NOBARI 9659
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 question-
ing.
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 individu-
als 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 experi-
ence in the investigation of methamphetamine
labs, is there — what was the role of the Mexi-
cans?
A. The pseudoephedrine would be given to a Mex-
ican cook and it would be converted with other
chemicals into methamphetamine.
Q. Based on your training and experience in inves-
tigating pseudoephedrine pill cases, [have you]
9660 UNITED STATES v. NOBARI
seen Middle Easterners participate in pseu-
doephedrine 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 Mid-
dle Easterns were secreting the pseudoephe-
drine 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 pro-
cess, 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 Wit-
ness’s testimony while he was on the stand.
UNITED STATES v. NOBARI 9661
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 Wit-
ness’s] testimony is to be considered by you only in
the context of this case and the evidence that is in
this case and his particular perspective in the Chi-
cago area.
You are not to consider that to suggest that any
particular ethnic group or persons of a particular
racial origin have these characteristics or tendencies
or that where a person is born or what a person’s eth-
nicity is has anything to do with whether he or she
is likely or not likely to engage in criminal activity.
The prosecution returned to the ethnic generalizations in its
closing argument, ostensibly to refute the defense’s claims
that the prosecution was engaging in “racial and ethnic profil-
ing”:
[W]ithin the context of methamphetamine manufac-
turing, the fact that George, Shino and Nobari hap-
pened to be Assyrian, happened to be Middle
Eastern is significant because, as you heard, Middle
Easterners typically occupy the role of pill broker
and are not involved in the actual manufacture of
methamphetamine.
Within the context of methamphetamine manufac-
turing, the role of obtaining pills for the manufacture
of methamphetamine is typically assumed by Mexi-
cans. In fact, as you heard in many of the recordings,
George himself talks about unloading the pills to the
9662 UNITED STATES v. NOBARI
Mexicans, who in his experience would take 50
cases at a time.
The district court overruled a subsequent defense objection
“to the prosecutor’s reference to heritage,” but reminded the
jury that “heritage is not in evidence and therefore you should
not treat that as having been proved.”
b. Standard of Review
“When the defendant objects to alleged prosecutorial mis-
conduct, the standard of review is abuse of discretion.” United
States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002). We con-
clude that the defendants’ objections here qualify as timely
under Federal Rule of Criminal Procedure 51(b), so we will
consider whether the district court abused its discretion in
allowing the contested testimony and argument. Nevertheless,
“establishing that there has been prosecutorial misconduct is
not in and of itself sufficient to merit reversal” of the defen-
dants’ convictions. United States v. Blueford, 312 F.3d 962,
973 (9th Cir. 2002). Rather, we must consider whether any
such misconduct was harmless. Id. We therefore apply harm-
less error analysis to the misconduct claim we address in this
section, as well as to those claims we consider in subsequent
sections, so long as the defendants entered a timely objection
at trial.
c. Analysis
[1] We have held that “[a]ppeals to racial, ethnic, or reli-
gious prejudice during the course of a trial violate a defen-
dant’s Fifth Amendment right to a fair trial.” United States v.
Cabrera, 222 F.3d 590, 594 (9th Cir. 2000). Specifically,
clearly established federal law provides that such prosecu-
torial conduct “violates a criminal defendant’s due process
and equal protection rights.” Bains v. Cambra, 204 F.3d 964,
974 (9th Cir. 2000); see also United States v. Doe, 903 F.2d
16, 25 (D.C. Cir. 1990) (“Racial fairness of the trial is an
UNITED STATES v. NOBARI 9663
indispensable ingredient of due process and racial equality a
hallmark of justice.” (citations omitted)). These conclusions
follow from the premise that “[p]eople cannot be tried on the
basis of their ethnic backgrounds or national origin.” Cabrera,
222 F.3d at 597.
In Cabrera, we reversed two defendants’ convictions for
crack cocaine offenses, having found that “at their joint trial
the lead detective injected extraneous, prejudicial material,
including impermissible references to Cabrera and Mulgado’s
national origin” of Cuba. Id. at 591. At trial, the detective
repeatedly referred to drug activity among “Cubans” in Cabr-
era’s neighborhood. Id. at 591-92. The detective “also testi-
fied that the round, flat wafers of cocaine that he purchased
from Cabrera were typical of members of the Cuban commu-
nity” and that he had only seen such a form of cocaine “in
Cuban cases.” Id. at 592-93. Finally, the detective suggested
that Cubans tended to be flight risks. Id. at 593. We analyzed
these statements under the Federal Rules of Evidence and
found that “[m]ost of [the detective’s] references to Cubans
were not relevant under Rules 401 and 402.” Id. at 596.
Although the testimony about drug packaging may have been
relevant, it also was prejudicial and should have been
excluded under Rule 403 balancing. Id. We then reversed the
defendants’ convictions under plain error review despite find-
ing that “the improper testimony came in through [the detec-
tive], not through the prosecutor during closing argument,” id.
at 595, and that the defense “insisted that [the detective]
explain his references to Cubans on cross-examination,” id. at
597, potentially exacerbating the harm caused by the direct
examination. We explained why we were reversing the con-
victions, notwithstanding these (potentially) mitigating fac-
tors: “The fairness and integrity of criminal trials are at stake
if we allow police officers to make generalizations about
racial and ethnic groups in order to obtain convictions.” Id.Similarly, in Bains, we found the use of ethnic generaliza-
tions impermissible where the prosecutor employed trial testi-
9664 UNITED STATES v. NOBARI
mony about the Sikh religion to suggest that “all Sikh persons
(and thus [the defendant] by extension) are irresistibly predis-
posed to violence when a family member has been dishonored
. . . and also are completely unable to assimilate to and to
abide by the laws of the United States . . . .” 204 F.3d at 975.
Although the evidence of Sikh beliefs had been properly
admitted for other purposes, “the introduction of clearly
inflammatory prosecutorial arguments very well might have
had the effect of motivating the jury to draw and to focus
upon the impermissible inferences” from the testimony. Id.The Bains Court nevertheless affirmed the defendant’s con-
viction under the less stringent standard for habeas review of
state court decisions established by Brecht v. Abrahamson,
507 U.S. 619, 636-38 (1993). Bains, 204 F.3d at 977-78.
In both Cabrera and Bains, we reviewed numerous authori-
ties recognizing that references to racial or ethnic groups are
improper. See Cabrera, 222 F.3d at 594-95; Bains, 204 F.3d
at 974-75. In one noteworthy case, United States v. Vue, 13
F.3d 1206 (8th Cir. 1994), the Eighth Circuit reversed the
convictions of brothers who were of Hmong ethnic descent.
At trial, a government customs supervisor testified that “pri-
marily the opium smuggling cases we have identified or
we’ve investigated relate to Hmong individuals” and esti-
mated that 95 percent of such cases in the area were attribut-
able to persons of Hmong descent. Id. at 1212. The Eighth
Circuit found error “of constitutional dimension, because the
injection of ethnicity into the trial clearly invited the jury to
put the Vues’ racial and cultural background into the balance
in determining their guilt.” Id. at 1213.
The testimony and argument in the case before us is similar
to what was introduced in the cases where our circuit and oth-
ers have identified error. See Cabrera, 222 F.3d at 597; Bains,
204 F.3d at 975; Vue, 13 F.3d at 1213. The prosecution delib-
erately elicited testimony from the Informant and the DEA
Witness that it then used in closing argument to link the eth-
nicity of the defendants to the roles typically played in the
UNITED STATES v. NOBARI 9665
pseudoephedrine pill trade by members of their respective
ethnic groups. The prosecution’s syllogism reduced, in
essence, to this: (1) Middle Easterners typically are pseu-
doephedrine pill brokers, and Mexicans typically obtain the
pills and cook methamphetamine; (2) Nobari, George, and
Shino are Middle Eastern, and Zazueta is Mexican; (3) there-
fore, Nobari, George, and Shino played the role of pill bro-
kers, and Zazueta was the cook. Cf. Jinro Am. Inc. v. Secure
Invs., Inc., 266 F.3d 993, 1007 (9th Cir. 2001) (addressing a
similar syllogism in a civil case). “Our caselaw, and that of
other circuits, establishes that this is an impermissible syllo-
gism.” Id. Indeed, the deliberateness with which the prosecu-
tion elicited the ethnic generalization testimony and later
referred to it in closing argument makes this conduct at least
as objectionable as the introduction of testimony in Cabrera,
where no comparable reference was argued to the jury, 222
F.3d at 591-93, or the closing argument made in Bains, which
drew from evidence that was properly admitted for a legiti-
mate purpose, 204 F.3d at 975.
In denying the defendants’ motions for new trial, however,
the district court analogized this case not to Cabrera or Bains,
but instead to United States v. Santiago, 46 F.3d 885 (9th Cir.
1995). In Santiago, we found no constitutional violation in a
trial during which the gang names “Mexican Mafia” and
“Latin Kings” were used, and in which the prosecution pre-
sented testimony that referenced the defendant’s presence at
a prison recreation center for Mexican Americans and demon-
strated that 25 percent of the Hispanic population would have
the same blood type as the defendant. Id. at 890. Holding that
“the government did not appeal to emotion in any of the
examples cited” but rather simply “elicited relevant testimony
that alluded to the ethnic background of certain prisoners,” we
denied an equal protection challenge. Id. at 891. The facts of
Santiago have little in common with those here. Santiago fea-
tured ethnic terms exclusively in the context of explaining rel-
evant facts, while the present case includes repeated
discussion of ethnic role stereotypes in the methamphetamine
9666 UNITED STATES v. NOBARI
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.
On appeal, the government argues that George opened the
door to ethnic generalization testimony by introducing record-
ings of his conversations with the Informant in support of his
entrapment defense. As the government accurately notes,
“[t]hose recordings contained numerous and sometimes pejo-
rative references to ‘Mexicans,’ ” the people to whom George
claimed he would resell the pseudoephedrine, as well as to
“people of Middle Eastern descent.” The government con-
tends that it was entitled to question the Informant and the
DEA Witness about the meaning of George’s “ethnic-based
references” to dispute his entrapment defense and to make the
conversation between George and the Informant comprehensi-
ble.
[2] The government is correct that the ethnic generalization
testimony was relevant under Federal Rule of Evidence 401,
if only to a small degree, for helping make sense of the con-
versation between George and the Informant in which they
discussed George’s interest in making a pseudoephedrine pur-
chase. See Fed. R. Evid. 401 (“ ‘Relevant evidence’ means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.”). However, the minimal probative value of the evi-
dence was substantially outweighed by the danger of unfair
prejudice inherent in its admission, as the testimony encour-
aged the jury to convict the defendants on the basis of their
membership in a particular ethnic group, rather than on the
strength of the government’s case. See Fed. R. Evid. 403. As
such, the evidence should have been excluded under Rule
403. See id.; Cabrera, 222 F.3d at 596.1
1
The limiting instruction given by the district court the morning after
the Informant and the DEA Witness testified did not effectively address
any prejudice that their testimony may have caused the defendants. Asking
the jury to consider the DEA Witness’s testimony “only in the context of
this case and the evidence that is in this case” did not help matters.
UNITED STATES v. NOBARI 9667
[3] The district court abused its discretion by admitting the
testimony and allowing the closing argument concerned with
ethnic generalizations, as the introduction of these remarks
violated the defendants’ due process and equal protection
rights. See Cabrera, 222 F.3d at 594, 597; Bains, 204 F.3d at
974. After considering the defendants’ remaining challenges
to their convictions, we will discuss the basis for our conclu-
sion that this error, in combination with any others, was harm-
less beyond a reasonable doubt. See, e.g., United States v.
Bushyhead, 270 F.3d 905, 911 (9th Cir. 2001) (“A constitu-
tional error may be disregarded only if it is harmless beyond
a reasonable doubt.”).
2. Appeals to the Passions of the Jury
[4] The defendants allege that the prosecution improperly
“inflamed the jury’s passions and fears,” in violation of due
process, on five occasions. As the defendants point out, “[w]e
have consistently cautioned against prosecutorial statements
designed to appeal to the passions, fears and vulnerabilities of
the jury.” United States v. Weatherspoon, 410 F.3d 1142,
1149 (9th Cir. 2005). Statements “clearly designed to encour-
age the jury to enter a verdict on the basis of emotion rather
than fact” are “irrelevant and improper.” Id. at 1150. In partic-
ular, prosecutors “ ‘may not urge jurors to convict a criminal
defendant in order to protect community values, preserve civil
order, or deter future lawbreaking. The evil lurking in such
prosecutorial appeals is that the defendant will be convicted
for reasons wholly irrelevant to his own guilt or innocence.’ ”
United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994)
(quoting United States v. Monaghan, 741 F.2d 1434, 1441
(D.C. Cir. 1984)), aff’d in part, rev’d in part on other
grounds, 518 U.S. 81 (1996).
[5] The defendants begin by claiming that the prosecution
violated this rule through “improperly appeal[ing] to biases
and fears about people from the Middle East” by eliciting eth-
nic generalization testimony and discussing it in closing argu-
9668 UNITED STATES v. NOBARI
ment, as described in the preceding section. Although we hold
that the prosecution violated the defendants’ rights to a fair
trial by presenting this testimony, we do not likewise con-
clude that the same conduct improperly appealed to the pas-
sions of the jury. The testimony and argument were improper
for introducing ethnic-based stereotypes that the jury could
use to infer that individual defendants were guilty, but it did
not cross another line by, for instance, pointing to a crisis of
Middle Eastern drug dealing in Turlock and “ask[ing] the jury
to make a statement.” United States v. Leon-Reyes, 177 F.3d
816, 823 (9th Cir. 1999). The government’s appeal was not
prejudicial by way of “comments calculated to arouse the pas-
sions or prejudices of the jury.” Id. at 822.
Second, according to the defendants, the government
impermissibly presented evidence at trial about “Operation
Mountain Express,” a DEA operation to combat international
trade in pseudoephedrine pills. Over defense objections, a
government witness described this large-scale investigation
and testified that the current case was a spin-off. The district
court did not abuse its discretion in allowing the testimony, as
it arguably was responsive to earlier defense questions that
revealed that the DEA investigation in this case was initiated
in 2001, two years before the offense conduct occurred in late
2003.
Third, the defendants challenge the prosecution’s reference
in closing argument to a “little boy” who was leaving McDon-
ald’s right as the defendants were arrested in the restaurant’s
parking lot. The prosecutor stated: “Had these agents not been
out there, this would have been another drug rip and who
knows what would have happened to the little boy that was
coming out of that McDonald’s.” The court sustained a
defense objection and gave the following instruction: “The
jury will determine what bearing any testimony or evidence
has on the issues to be decided.” The prosecution’s comment
was an improper appeal to jurors’ emotions and fears. See
Weatherspoon, 410 F.3d at 1149-50. Because the prosecutor
UNITED STATES v. NOBARI 9669
never indicated that she was rebutting any claim by the
defense, we are not persuaded by the government’s argument
on appeal that the comment was properly responsive to the
suggestion by George’s attorney in closing argument that the
government showed a lack of concern for other human beings.
While the district court sustained an objection to the prosecu-
tor’s comment, it did not instruct the jury to disregard the
statement, as it should have. The prosecution’s reference to
the “little boy,” therefore, was an improper statement that was
not sufficiently neutralized by the court.
Fourth, the defense claims that the prosecution also sought
to appeal to the jury’s emotions and fears by emphasizing “the
concern in the voice of [the Agent]” on the tape of the drug
bust. In the prosecutor’s words, the Agent expressed “concern
for another human being as Mr. Nuttall [George’s attorney]
would say, genuine concern. Because he knew this was a vol-
atile situation . . . . These drug traffickers pose a real and via-
ble threat. Had it not been for the intervention of these law
enforcement officers, it was a volatile situation. There was a
real danger.” Unlike the prosecution’s reference to the boy in
the McDonald’s parking lot, this statement was directly
responsive to a suggestion made by George’s attorney that the
government failed to exhibit “genuine concern” for other peo-
ple. Even if we viewed this statement, in part, as calculated
to appeal to jurors’ emotions, it was a permissible “invited
response” to the defense’s argument. See United States v.
Young, 470 U.S. 1, 11 (1985). No error was committed here.
Finally, right after making these comments, the prosecutor
continued with the following statement, to which the defense
did not object at trial but cites now as improper: “The City of
Turlock should be thankful to law enforcement for their
efforts in diffusing a volatile situation, for finding these drug
traffickers and you, ladies and gentlemen, should not let the
City of Turlock down.” These comments, which came at the
end of the prosecution’s closing argument, appear designed to
encourage the jury to view the government’s case more favor-
9670 UNITED STATES v. NOBARI
ably by appealing to positive emotion for the law enforcement
officers involved in the drug bust. See Weatherspoon, 410
F.3d at 1149. This was improper commentary and should
have been struck from the record, as a prosecutor may not
“tell[ ] the jury it had any obligation other than weighing the
evidence.” United States v. Polizzi, 801 F.2d 1543, 1558 (9th
Cir. 1986); cf. Koon, 34 F.3d at 1443 (barring prosecutors
from urging a conviction “to protect community values”
(internal quotation marks omitted)).
[6] In sum, we have identified two errors at trial that
involved the introduction of argument designed to appeal “to
the passions, fears and vulnerabilities of the jury,” Weather-
spoon, 410 F.3d at 1149: the district court’s failure to instruct
the jury to disregard, first, the prosecution’s reference to the
“little boy” exiting the McDonald’s as the defendants were
arrested and, second, the prosecution’s appeal to the jury to
“not let the City of Turlock down.”
The defendants raise a number of additional arguments, but
none of the arguments breaks new ground, and, with one
exception, we find no further error. Accordingly, we will dis-
cuss the remaining claims in abbreviated fashion, providing
limited factual and legal background for each.
3. Vouching
The first of these claims is the defendants’ allegation that
the prosecutor repeatedly vouched for herself and for prosecu-
tion witnesses. None of the examples the defendants cite,
however, constitute improper vouching.
First, the defendants contend that the prosecution vouched
for the credibility of the Informant by “expressing that the
informant’s truthfulness had already been determined by a
different prosecutor and a federal judge and verified by a
polygraph.” We do not find vouching here. To begin, the
Informant was called by the defense as a witness, not by the
UNITED STATES v. NOBARI 9671
prosecution. Although the Informant played an integral role in
advancing the underlying government investigation, vouching
typically involves the prosecution bolstering the testimony of
its own witness. See United States v. Hermanek, 289 F.3d
1076, 1098 (9th Cir. 2002). Moreover, the prosecution’s ques-
tioning here focused on the Informant’s fulfillment of the
terms of a past plea agreement requiring him to provide truth-
ful information and testimony. That is, the prosecution was
not using the plea agreement to show that the Informant was
under any special obligation to give truthful testimony in the
present case, but rather that he successfully had done so
before. Finally, by attempting on direct examination to
impeach the Informant through references to his plea agree-
ment, the defense opened the door to questions by the prose-
cution about the agreement.
Next, the defense takes issue with the prosecution’s ques-
tioning of the DEA Witness about whether the Informant had
proven “reliable” and “truthful” in the Witness’s “daily con-
tacts” with him. At trial, the district court overruled the defen-
dants’ objections to the DEA Witness’s testimony, noting that
the Witness said that he had spoken with the Informant daily
for four years, thus qualifying him as a character witness. The
court did not abuse its discretion in so ruling, as there would
have been no basis for finding impermissible vouching here.
Similarly, we find no merit to the defendants’ allegation of
improper vouching in the beginning of the prosecution’s clos-
ing argument. Although the defendants argue that the prose-
cutor vouched for her own credibility by referring to her oath
of office, her statement was far less extreme than the vouch-
ing that we found impermissible in United States v. Smith,
962 F.2d 923, 933-34 (9th Cir. 1992). Moreover, the prosecu-
tion rejoinder qualified as an “invited response” to the closing
arguments of Shino’s attorney and Zazueta’s attorney. See
Young, 470 U.S. at 12.
[7] The last vouching claim by the defendants centers on
the prosecutor’s implication that she had information not pres-
9672 UNITED STATES v. NOBARI
ented to the jury about George’s alleged communication and
association with known drug traffickers. The prosecutor’s
response here was “invited” by the defense’s misleading
description in closing argument of the evidence (or absence
thereof) on this issue; the prosecutor did not “unfairly preju-
dice[ ] the defendant.” Id. Having reviewed each of the defen-
dants’ allegations of vouching, we conclude that the
prosecution did not engage in vouching that might warrant
reversal of the defendants’ convictions.
4. Alleged Disparagement of Defense Counsel
[8] According to the defendants, the prosecution improp-
erly disparaged all four defense counsel in closing argument.
The remarks the defendants cite, however, do not rise to the
level of commentary that we have held to be improper. Rather
than accusing the defense of fabricating a story, see United
States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999), or
stating that the government, unlike the defense, will ask the
jury to consider all the evidence, see United States v. Freder-
ick, 78 F.3d 1370, 1379 (9th Cir. 1996), the prosecutor here
merely “attacked the strength of the defense on the merits, not
the integrity of defense counsel,” United States v. Bernard,
299 F.3d 467, 487-88 (5th Cir. 2002) (rejecting a challenge to
a prosecutor’s closing argument that accused the defense of
trying “to get someone on this jury to . . . take a red herring”).
We therefore find no misconduct.
5. Presentation of Specific Evidence
George, Shino, and Zazueta contend that the district court
erred in allowing the prosecution to introduce certain evi-
dence that they claim was prejudicial to them. Each defendant
raises one such claim. George alleges that the prosecution
improperly presented evidence that he previously had been
arrested for shoplifting. Regardless of whether George may
have had a legitimate objection to the admissibility of this evi-
dence, his concern on appeal is solely with alleged miscon-
UNITED STATES v. NOBARI 9673
duct by the prosecutor in asking a potentially objectionable
question of George’s pretrial services officer. There is no
authority to suggest that this rises to the level of error under
the circumstances here.
[9] For his part, Shino claims that the prosecution, by way
of its questions to George in cross-examination, improperly
introduced otherwise inadmissible evidence about Shino’s
alleged associations with other drug traffickers. We agree. As
in United States v. Sanchez, the prosecutor’s questions here
assumed facts not in evidence, there was no indication that the
prosecutor could have proven the facts insinuated in her ques-
tions, and the questions reflected negatively on Shino. 176
F.3d at 1223. We therefore conclude that the district court
abused its discretion in overruling Shino’s objections to these
questions at trial.
Finally, Zazueta argues that by asking a testifying DEA
agent questions about Zazueta’s brother, the prosecution acted
“in direct defiance” of the district court’s pretrial ruling that
certain evidence was inadmissible in the prosecution’s case-
in-chief. Zazueta’s claim has no merit. The record makes
plain that the court’s ruling applied only to the prosecution’s
attempt to present evidence that Zazueta had been present at
his brother’s meth lab. The prosecution respected this ruling,
as it never sought to introduce such evidence. Accordingly,
we find no misconduct.
6. Sufficiency of Evidence to Convict Under 18 U.S.C.
§ 924(c)
Count Three of the indictment charged the defendants with
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal,
only Nobari challenges the sufficiency of the evidence pre-
sented to convict him on this count.
[10] To prove that Nobari violated 18 U.S.C.
§ 924(c)(1)(A)(i), the government must show the following:
9674 UNITED STATES v. NOBARI
(1) Nobari participated in a drug trafficking crime; (2) he pos-
sessed a firearm; and (3) his possession of the firearm was “in
furtherance” of the drug trafficking crime. See United States
v. Hector, 474 F.3d 1150, 1156 (9th Cir. 2007). Nobari claims
that the government failed to show that he had access to the
gun during the drug transaction and that the gun was pos-
sessed “in furtherance” of the crimes for which he was con-
victed. We disagree. The government presented sufficient
evidence to show that Nobari “possessed the weapon to pro-
mote or facilitate the underlying crime,” in other words, to
“further” the offense. United States v. Krouse, 370 F.3d 965,
967 (9th Cir. 2004). The evidence reveals a sufficient “nexus”
between the gun and the underlying offense to uphold
Nobari’s conviction on this count. Id. at 968; see also United
States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007).
7. Jury Instructions
The defendants present two challenges to the district
court’s jury instructions. Nobari and Zazueta challenge the
instructions given on Count Three, concerning violations of
18 U.S.C. § 924(c), and George challenges the instructions on
his entrapment defense. Our review of both sets of jury
instructions is for plain error, since the defendants failed to
object at trial, as they concede. See Fed. R. Crim. P. 30(d)
(“Failure to object in accordance with this rule precludes
appellate review, except as permitted under Rule 52(b) [plain
error review].”).
Nobari and Zazueta argue that the district court misstated
the elements of § 924(c). The defendants are correct. The
court repeatedly confused two separate clauses of § 924(c),
one that refers to an offender who “uses or carries a firearm”
”during and in relation to any . . . drug trafficking crime” and
a second that criminalizes possession of a firearm “in further-
ance of any such crime.” 18 U.S.C. § 924(c)(1)(A).
UNITED STATES v. NOBARI 9675
[11] Nevertheless, while we have acknowledged that there
are relevant distinctions between these two clauses, see, e.g.,
United States v. Mann, 389 F.3d 869, 879-80 (9th Cir. 2004),
we also have described the “during and in relation to” and “in
furtherance of” clauses of § 924(c) as “difficult to distinguish
conceptually,” in part because similar proof is required for
each, United States v. Arreola, 467 F.3d 1153, 1160 (9th Cir.
2006). Indeed, we held in Arreola that § 924(c) defines just
one offense, not two. Id. at 1161. Given the conceptual simi-
larity between the two statutory clauses, the district court’s
error in conflating the clauses in its jury instructions did not
“seriously affect[ ] the fairness, integrity or public reputation
of” the trial. United States v. Olano, 507 U.S. 725, 732 (1993)
(quoting Young, 470 U.S. at 15). Accordingly, we hold that
the district court did not commit plain error in its instructions
on Count Three.2
[12] We also reject George’s allegation that he should have
received a specific unanimity instruction on his entrapment
defense. George’s reliance on United States v. Southwell, 432
F.3d 1050 (9th Cir. 2005), is misguided. Although we held in
Southwell that unanimity is required for a jury to reject an
affirmative defense, we did not hold, as George suggests, that
district courts are required to give a specific unanimity
instruction on all affirmative defenses. See id. at 1053-55.
2
The defendants claim that the district court’s erroneous instructions
“constituted an impermissible amendment of the indictment by the court,”
in violation of the Grand Jury Clause. Nobari and Zazueta cite two cases,
United States v. Castano, 543 F.3d 826 (6th Cir. 2008), and United States
v. Combs, 369 F.3d 925 (6th Cir. 2004), in which the Sixth Circuit
reversed each defendant’s conviction after he received incorrect jury
instructions on § 924(c). These cases are distinguishable from the present
case, however, because the judgment entered in each of the Sixth Circuit
cases indicated that the jury had convicted the defendant under a different
prong of § 924(c) than the one under which he was indicted. See Castano,
543 F.3d at 834; Combs, 369 F.3d at 936. Copies of the judgments against
Nobari and Zazueta and their respective verdict forms show that no such
error occurred here. We therefore hold that the indictment was not con-
structively amended. Arreola, 467 F.3d at 1162.
9676 UNITED STATES v. NOBARI
Indeed, such an instruction is not required in most cases. Jaz-
zabi v. Allstate Ins. Co., 278 F.3d 979, 986 (9th Cir. 2002).
The present case does not present the unusual circumstances
that might have warranted a specific unanimity instruction,
and thus we find no error. See id.; see also United States v.
Kim, 196 F.3d 1079, 1082 (9th Cir. 1999) (“In the ordinary
case, a general unanimity instruction suffices to instruct the
jury that they must be unanimous on whatever specifications
form the basis of the guilty verdict.”).
8. “Outrageous” Government Conduct
George contends that the government engaged in outra-
geous conduct by failing to monitor its confidential informant,
by denying the Informant’s involvement in the pseudoephe-
drine transaction, and by allowing the Informant to engage in
other allegedly offensive behavior. We disagree. To secure
the dismissal of an indictment on due process grounds, “a
defendant must meet an extremely high standard.” United
States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). George
cannot meet this standard, as the government’s alleged con-
duct plainly would not “violate the universal sense of justice,”
as required for dismissal, even were we to assume the truth of
George’s allegations, which he offers without citation to the
record. See id.
9. Entrapment
Next, George asserts that the government had insufficient
evidence to prove beyond a reasonable doubt that he was not
entrapped. Although we review this claim de novo, we will
not overturn the jury’s verdict “unless ‘viewing the evidence
in the light most favorable to the government, no reasonable
jury could have concluded that the defendant[ ]’ was neither
induced nor predisposed to commit the charged offenses.”
United States v. Si, 343 F.3d 1116, 1125 (9th Cir. 2003)
(quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.
UNITED STATES v. NOBARI 9677
1994)) (alteration in original). George cannot meet this highly
deferential standard.
[13] George alleges inducement in the government’s (suc-
cessful) efforts to persuade him to reenter the drug transaction
after he voluntarily had “withdrawn.” Even if the jury could
have found inducement on these facts, a matter on which we
express no opinion, there was not “undisputed evidence” that
George was induced to commit the offenses. Davis, 36 F.3d
at 1430. That is, a “reasonable jury” also could have con-
cluded that his initial contact with the government, via the
DEA Witness, negated any claim of inducement. Id. Simi-
larly, we conclude that the government’s evidence was suffi-
cient for a reasonable jury to find that George was
predisposed to commit the crimes. See id. Accordingly,
George is not entitled to a finding of entrapment as a matter
of law.
B. Harmless Error
[14] Having discussed each of the challenges the defen-
dants make to their convictions, we now consider whether any
of the errors that we have identified are sufficiently prejudi-
cial to the defendants to warrant reversing their convictions.
Under Chapman v. California, 386 U.S. 18, 24 (1967), we
must decide whether the constitutional errors committed at the
defendants’ trial were “harmless beyond a reasonable doubt.”
We have held that “prosecutorial misconduct invites reversal
if it appears more probable than not that the alleged miscon-
duct affected the jury’s verdict.” United States v. Simtob, 901
F.2d 799, 806 (9th Cir. 1990). That said, an “important factor
contributing to the prejudicial effect of improper statements is
the strength of the case against a defendant.” Weatherspoon,
410 F.3d at 1151. While we have addressed each error in a
separate section of this opinion, we now must consider the
errors together to determine whether reversal is required:
“The cumulative effect of multiple errors can violate due pro-
cess even where no single error rises to the level of a constitu-
9678 UNITED STATES v. NOBARI
tional violation or would independently warrant reversal.”
Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing
Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973)).
[15] We have identified three forms of error in this case:
the presentation of testimony and argument that employed
ethnic generalizations, prosecutorial appeals to the passions
and fears of the jury, and improper questions to George about
Shino’s alleged association with drug traffickers. We con-
clude that these errors, even when considered together, were
harmless to the defendants’ rights to a fair trial, given the
overwhelming evidence the prosecution presented against
them.
To begin with, the evidence established, without question,
that all four defendants were at the scene of the drug bust. The
identity of the defendants was not at issue here, as it is in
many criminal prosecutions. The government conclusively
proved that these four individuals were at the scene, without
reference to their ethnic backgrounds.
George, for example, was not arrested and charged because
he was a “Middle Easterner.” Rather, he was caught red-
handed attempting to purchase pseudoephedrine from an
undercover DEA agent after arranging the sale himself. At
trial, the government presented the agent’s testimony and
introduced into evidence a transcript of discussions that
occurred during the attempted purchase. George presented an
entrapment defense at trial, which the jury rejected and which
we, like the jury, do not find compelling. Even setting aside
the question of whether George was induced to commit the
offenses, the evidence leaves us with no doubt that he was
predisposed to commit the offenses of conviction. See Si, 343
F.3d at 1125 (“The defense of entrapment has two elements:
(1) government inducement to commit the crime and (2) an
absence of predisposition on the part of the defendant to com-
mit the crime.”). Before the Turlock deal, George had
arranged through his agents in Chicago to receive pseu-
UNITED STATES v. NOBARI 9679
doephedrine in an earlier attempted transaction that failed
because, according to George, his “people in Chicago . . . kind
of screwed up on their end.” The transcripts of George’s sub-
sequent conversations with the Informant and the Agent also
suggest that George was intimately familiar with the lingo of
the pseudoephedrine trade and was ready and willing to “do
business” with the government. George’s entrapment defense,
therefore, did not undermine the government’s unassailable
case against him. That he was a “Middle Easterner” did not
matter.
The evidence was also conclusive, apart from any ethnic
characterizations, that the other defendants arrested at the
scene were not innocent bystanders. With respect to Nobari,
the government presented testimony and transcript evidence
demonstrating that he accompanied George to the rendezvous
point initially and remained with George throughout the day
of the attempted pseudoephedrine purchase. Although Nobari
contends on appeal that a jury reasonably could have found
that he “contribut[ed] nothing to the deal other than exchang-
ing pleasantries with [the Agent],” this characterization of
events belies the evidence. At the scene of the attempted
transaction, Nobari discussed with George and the Agent how
many buckets of pills would be purchased, talked to the Agent
about how he and George “do business,” claimed that “we
want to keep making money,” and boasted to the Agent that
“this is our f[------] town bro, there’s nobody doing s[---] in
this part of town.” Moreover, Nobari was in possession of a
firearm at the scene, making it even less plausible that he was
an innocent bystander, as he claims.
As to Shino, the government’s evidence was nearly as
strong. George and Nobari were in phone contact with him
throughout their meeting with the Agent. Subsequently, Shino
drove to the deal in the pickup truck of a convicted drug
dealer, Daniel Jimenez, and, after arriving at the scene,
handed a bag of money containing $20,000 to George. More-
over, a post-arrest search revealed that the key ring for the
9680 UNITED STATES v. NOBARI
truck that Shino drove to the deal held keys to Jimenez’s resi-
dence. The evidence makes clear that, contrary to his claim
before this court, Shino knew what the large amount of
money he handed to George was intended to purchase.
The prosecution also presented ample evidence against
Zazueta, leaving virtually no doubt of his guilt. Zazueta was
present at Shino’s residence when George and Nobari arrived
after the Agent had shown them the pills. Later, Zazueta
arrived at the scene of the attempted purchase as a passenger
in Jimenez’s truck, driven by Shino, and had on his person a
loaded Beretta handgun with a laser sight. The Agent testified
that, once Zazueta arrived, George told the Agent that “the
Mexican guy . . . wants it,” in reference to Zazueta’s desire
to obtain the pseudoephedrine.
[16] This survey of the evidence reveals that the errors we
have identified were harmless to the defendants’ rights to a
fair trial. The strength of the prosecution’s case assures us that
the errors did not render the defense “ ‘far less persuasive
than it might [otherwise] have been.’ ” Parle, 505 F.3d at 927(quoting Chambers, 410 U.S. at 294) (alteration in original).
While we remain troubled in particular by the prosecution’s
use of ethnic generalizations, we cannot conclude that the
defendants were prejudiced by these actions, in light of the
overwhelming evidence against them. Accordingly, under the
Chapman standard of harmless error review, we hold that the
errors committed at the defendants’ trial were harmless
beyond a reasonable doubt, and we uphold their convictions.
C. George’s Challenges to His Sentence
Only George contests the sentence that he received. George
claims that, in imposing his 170-month sentence, the district
court improperly calculated the Guidelines range by denying
him safety valve relief under 18 U.S.C. § 3553(f), and
improperly considered the sentencing factors of 18 U.S.C.
§ 3553(a). The Guidelines prescribe a two-level reduction
UNITED STATES v. NOBARI 9681
under safety valve relief for a defendant who meets the five
criteria specified in § 5C1.2(a). See U.S.S.G. § 2D1.1(b)(9)
(2006). The government does not dispute that George met the
first and third criteria. See id. § 5C1.2(a)(1), (a)(3).
The district court held, however, that George failed to meet
the fourth safety valve criterion, which requires that the
defendant “was not an organizer, leader, manager, or supervi-
sor of others in the offense . . . and was not engaged in a con-
tinuing criminal enterprise.” Id. § 5C1.2(a)(4). The contents
of the transcripts involving George, in combination with other
evidence in the record, convince us that the district court was
justified in finding that George led his co-defendants in these
offenses. The defense argues that George “was simply a con-
duit between the actual buyers and the government agents”
because he had to seek approval from others for the quantity
of pseudoephedrine to be purchased, the purchase price, and
the location of the transaction. Yet George still orchestrated
the transaction, even if the ultimate purchasers, for obvious
business reasons, arguably had a major influence on how
much pseudoephedrine George negotiated to purchase and at
what price. The district court reasonably concluded, therefore,
that George was in charge.
[17] Because we hold that the district court did not clearly
err in finding that George was a leader in the offenses and
thus was ineligible for safety valve relief under the fourth cri-
terion, id. § 5C1.2(a)(4), we need not consider the second and
fifth criteria for relief, id. § 5C1.2(a)(2), (a)(5). On this basis,
we uphold the district court’s denial of relief to George under
§ 5C1.2(a) of the Guidelines.
[18] George also takes issue with the manner in which the
district court considered the sentencing factors under 18
U.S.C. § 3553(a). The transcript reveals, however, that the
district court gave proper consideration to these factors. Even
if we believed that another sentence were appropriate, we may
not substitute our own judgment for the district court’s on
9682 UNITED STATES v. NOBARI
these grounds. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). Accordingly, we affirm George’s 170-
month sentence.
III. Conclusion
We affirm the convictions of all four defendants, as the
only errors committed at trial were harmless. We also affirm
George’s sentence.
AFFIRMED.