United States v. Nobari

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.