Friday, July 24, 2009

U.S. v. Nobari, et al., No. 06-10465 (7-24-09). So, in this drug conspiracy case, the 9th finds that the prosecution improperly argued racial stereotypes and ethnic generalizations, appealed to prejudice, and in argument asked the jury to send a message and not let the government down. Reversal? No, because of lack of prejudice given the supposed overwhelming nature of evidence. Harmlessness was found by the 9th (Clifton joined by Gould and Bybee) despite an entrapment defense, which explained the "caught red-handed" evidence the 9th stressed. Moreover, the 9th's reasoning that it also must be harmless because, after all, the jury rejected the entrapment defense makes one wonder whether the only prejudice can be with an acquittal. This was a meth conspiracy, where the prosecution raised multiple times the roles that certain ethnic or racial groups play in drug conspiracies ("middle Easterners" and "Mexicans"). The defense objected to these references, and to the references in closing about a 10-year old boy leaving a fast food restaurant where the deal took place and how the drugs would affect him, and also about not letting "the City of Turlock" down. All these things the 9th spends time, and cites, going over and finding error, and being "troubled," but in the end affirming the convictions and sentence. Although the convictions stand, the language and the analysis of the error can be used to prevent such prosecutorial references in the future.
U.S. v. Harris, No. 08-10370 (7-24-09) (per curiam). The 9th holds that Nevada convictions for robbery and attempted robbery categorically qualify as crimes of violence under the Guidelines' career offender definition. Conduct under the statute that did not fit the generic definition of robbery nonetheless would fit extortion. The Nevada statute tracks the California statute upheld in U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008).


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