Petition for Writ of Certiorari — Vladislav Konstantin Aksenov, Petitioner v. United States

No. __________

In the

Supreme Court of the United States

VLADISLAV KONSTANTIN AKSENOV, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petition for a Writ of Certiorari

CUAUHTEMOC ORTEGA

Federal Public Defender

MARGARET A. FARRAND*

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-2854

Facsimile: (213) 894-1221

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Do the Fifth and Fourteenth Amendments prohibit the government

at trial from implicitly evoking stereotypes about a defendant’s racial or

ethnic background by making repeated references to those matters when

they are not relevant to any contested issue?

Statement of Related Proceedings

• United States v. Vladislav Aksenov,

o Case No. 2:21-452-JFW-1 (C.D. Cal., Nov. 27, 2023)

• United States v. Vladislav Aksenov,

o 2025 WL 1650020 (9th Cir. June 11, 2025)

TABLE OF CONTENTS

I.

Page

OPINIONS BELOW ................................................................................... 1

II.

JURISDICTION ......................................................................................... 1

III.

CONSTITUTIONAL, STATUTORY, AND OTHER PROVISIONS

INVOLVED ................................................................................................. 2

IV.

INTRODUCTION ....................................................................................... 2

V.

STATEMENT OF THE CASE ................................................................... 5

VI.

REASONS FOR GRANTING THE WRIT ................................................. 9

A.

Courts Have not Uniformly Recognized the Constitutional

Intolerability of Implied, Rather than Explicit, Stereotypes at

Criminal Trials ......................................................................... 10

1.

Courts uniformly recognize the unconstitutionality of

explicit racial stereotypes ............................................... 10

2.

The Second and Seventh Circuits, and several state

supreme courts, have recognized the unconstitutionality

of implied racial stereotypes........................................... 12

3.

The Ninth Circuit has not clearly recognized the

impermissibility of implied racial stereotypes, as this

case reflects. .................................................................... 15

B.

This Court Should Grant Certiorari to Clarify that the

Constitution Prohibits Implied Stereotypes Based on Race and

Nationality................................................................................ 17

C.

The Ninth Circuit’s Misguided Rule Prejudiced Aksenov and

Warrants Relief ........................................................................ 19

VII. CONCLUSION ........................................................................................... 22

TABLE OF CONTENTS

APPENDICES

Page

App. 1a: Memorandum Disposition, United States v. Aksenov, 2025 WL

1650020 (9th Cir. June 11, 2025)

TABLE OF AUTHORITIES

Federal Cases

Page

Aliwoli v. Carter,

225 F.3d 826 (7th Cir. 2000) ................................................................ 13

Bains v. Cambra,

204 F.3d 964 (9th Cir. 2000) ................................................................ 10

Buck v. Davis,

580 U.S. 100 (2017) ........................................................................ 18, 21

United States v. Cabrera,

222 F.3d 590 (9th Cir. 2000) ................................................................ 10

McFarland v. Smith,

611 F.2d 414 (2d Cir.1979) .................................................................. 11

McKleskey v Kemp,

481 U.S. 279 (1987) .............................................................................. 10

Miller v. North Carolina,

583 F.2d 701 (4th Cir. 1978) ................................................................ 11

Moore v. Morton,

255 F.3d 95 (3d Cir. 2001) ................................................................... 11

United States v. Nobari,

574 F.3d 1065 (9th Cir. 2009) ................................................................ 4

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) ........................................................................ 18, 19

United States v. Richardson,

161 F.3d 728 (D.C. Cir. 1998) .............................................................. 11

United States v. Runyon,

707 F.3d 475 (4th Cir. 2013) ................................................................ 11

United States v. Sanchez,

482 F.2d 5 (5th Cir. 1973) .................................................................... 11

TABLE OF AUTHORITIES

Page

United States v. Santiago,

46 F.3d 885 (9th Cir. 1995) .................................................................. 16

Smith v. Farley,

59 F.3d 659 (7th Cir. 1995) .................................................................. 19

Turner v. Murray,

476 U.S. 28 (1986) ................................................................................ 18

Von Saher v. Norton Simon Museum

592 F.3d 954 (9th Cir. 2010) .................................................................. 7

United States v. Vue,

13 F.3d 1206 (8th Cir. 1994) ................................................................ 11

United States v. Weiss,

930 F.2d 185 (2d Cir. 1991) ............................................................. 4, 12

State Cases

State v. Bagby,

522 P.3d 982 (Wash. 2023) ........................................................ 4, 13, 14

Carter v. State.

241 P.3d 476 (Wyo. 2010) .................................................................... 14

State v. Rogan,

984 P.2d 1231 (Haw. 1999) .................................................................. 15

Federal Statutes

18 U.S.C. § 912............................................................................................ 5

28 U.S.C. § 1254.......................................................................................... 1

Other Authorities

U.S. CONST., amend V................................................................................ 2

U.S. CONST., amend XIV............................................................................ 2

TABLE OF AUTHORITIES

Page

Sup. Ct. R. 10 .............................................................................................. 4

Fed. R. Evid. 201......................................................................................... 7

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Vladislav Aksenov petitions for a Writ of Certiorari to review the

judgment and opinion of the United States Court of Appeals for the

Ninth Circuit in his case.

I.

OPINIONS BELOW

The opinion of the court of appeals is unpublished, but available at

2025 WL 1650020 (9th Cir. June 11, 2025). (App. 1a.) The district court

did not render a ruling on the question set forth in this petition. 1

II.

JURISDICTION

The judgment of the court of appeals was entered on June 11,

2025. (App. 1a.) Rehearing was not sought. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

1 Citations to “App.” are to the appendix to this petition. Citations

to “ER” are to the Excerpts of Record filed in the Court of Appeals.

1

III. CONSTITUTIONAL, STATUTORY, AND OTHER

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in

relevant part:

No person shall . . . be deprived of life, liberty, or property,

without due process of law.

The Fourteenth Amendment to the United States Constitution provides,

in relevant part:

[N]or shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

IV.

INTRODUCTION

This case provides the Court an opportunity to clarify a critical

principle of federal jurisprudence: that a prosecutor’s use of implied

racial stereotypes at a defendant’s criminal trial violates the

Constitution’s guarantees of due process and equal protection. Federal

courts have uniformly recognized that the Constitution prohibits

express racial stereotypes at trial. But the law on implied stereotypes is

less clear, with only the Second and Seventh Circuits, and a few state

courts of last resort, having expressly recognized their constitutional

2

impermissibility. In this case, for instance, the government suffused its

trial arguments with near-constant references to the defendant as a

“big white Russian” when those traits—being large, white, and

Russian—had no relevance to any disputed issue in the case, and at a

time when the American media was saturated with descriptions of

Russia invading and attacking Ukraine. The government also

sporadically accompanied the phrase “big white Russian” with the word

“threatening,” so as to imply (without expressly saying) that large white

Russian people are a danger and a menace.

Because such implied stereotypes are just as harmful to the

judicial process as express ones (perhaps even more so), the Fifth and

Fourteenth Amendments should condemn them just as strongly. But

the Ninth Circuit did not so hold here; instead, it denied relief by citing

the absence of “ethnic generalizations or [government] attempt[s] to

connect Aksenov’s criminal conduct to his ethnicity or nationality.”

(App. 5a.) But, as the Second and Seventh Circuits, as well as multiple

state courts of last resort, have recognized, jury verdicts tainted by

3

either “explicit or implicit racial bias” 2 violate the Constitution’s

guarantees.

The lack of clarity surrounding whether the Constitution bars

only express “[a]ppeals to racial [or] ethnic. . . prejudice,” United States

v. Nobari, 574 F.3d 1065, 1073 (9th Cir. 2009), or implied ones as well

implicates fundamental Constitutional rights at the core of a fair trial.

This uncertainty calls for correction, warranting this Court granting

certiorari and vacating the Ninth Circuit’s judgment to clarify that the

Constitution condemns racial or ethnic stereotypes no matter their

form. See Sup. Ct. R. 10(c) (certiorari may be warranted when “a United

States court of appeals has decided an important question of federal law

that has not been, but should be, settled by this Court.”); Sup. Ct. R.

10(a) (certiorari may be warranted when “a United States court of

appeals has entered a decision in conflict with the decision of another

United States court of appeals on the same important matter [or] has

2 State v. Bagby, 522 P.3d 982, 989 (Wash. 2023) (en banc)

(emphasis added) (internal quotation omitted); see also United States v.

Weiss, 930 F.2d 185, 196 (2d Cir. 1991) (“[E]ven a reference that is not

derogatory may carry impermissible connotations, or may trigger

prejudiced responses in the listeners that the speaker might neither

have predicted nor intended.”) (internal quotation omitted).

4

decided an important federal question in a way that conflicts with a

decision by a state court of last resort.”)

V.

STATEMENT OF THE CASE

Vladislav Aksenov is a white Russian man who worked as a car

repossessor. (3-ER-236-39, 375.) In July 2021 Mr. Aksenov and an

Asian translator tried to repossess a car by knocking on the door of the

person they thought had it: a man named Peter Nguyen. (3-ER-236-39,

275, 305-06.) Nguyen opened the door and later testified that, of the two

people standing there, the “white” man with a “thick Russian accent” (3ER-301)—who could only be Mr. Aksenov—flashed a badge, told Mr.

Nguyen to open his garage, and said he was “FBI.” (3-ER-301-03.) For

this act Mr. Aksenov was tried for, and convicted of, impersonating a

federal agent in violation of 18 U.S.C. § 912. (2-ER-121-22; 4-ER-603.)

Mr. Aksenov never claimed that the Asian interpreter flashed a

badge or claimed to be “FBI,” so identity was not in dispute. His defense

was instead that he never committed the charged offense at all—that is,

he never claimed to be “FBI”—and Nguyen misheard him. (2-ER-81.)

Yet at trial the government and its witnesses repeatedly and

relentlessly referred to Mr. Aksenov as a “big white Russian,”

5

constantly invoking his Russian background, white ethnicity and

physical size so as to imply that he must be guilty. It used the “big

white Russian” phrase over and over during witness questioning and

argument when it was unnecessary, sometimes pairing it with the word

“threatening,” and arguing to the jury in closing that ‘“it is the job of the

big man” to “pound” on doors and “make[] the demands.” (2-ER-95.) All

told, the government’s closing argument used the word “Russian” 29

separate times, and the phrase “white Russian,” “big white Russian,”

“white man,” or a similar phrase, 25 times, in an inescapable refrain. 3

(See 2-ER-58 (“[T]here was only one big white Russian male”

at Nguyen’s door); 2-ER-58 (“white man with an accent”); 2-ER-62

(“The man is white. He has an accent. He has a badge. He is

threatening.”); 2-ER-62 (“You heard a thick Russian accent”); 2-ER62 (Aksenov is “white with an accent with a badge”); 2-ER-63

(Nguyen saw “a big white Russian at his door”); 2-ER-63 (the

translator was “not a big white Russian man” like Aksenov); 2-ER-64

(Nguyen referred to “a big white Russian man threatening him”); 2ER-64 (the tow truck driver was “shorter than the big white Russian

man threatening [Nguyen].”); 2-ER-64 (Nguyen saw a “big white

Russian man” through the window); 2-ER-66 (Dominguez is not a “big

tall Russian man” with a “Russian accent”); 2-ER-67 (“Nguyen

reported seeing a big white Russian man in front of his door”); 2-ER67 (“Nguyen reported seeing a big white Russian man in front of his

window”); 2-ER-68 (“Nguyen described the man at his door as a big

white Russian with a badge . . ., and that is what officers found . . . a

big white Russian with a badge”); 2-ER-69 (“Nguyen told the 911

operator that the big Russian man said, ‘I'm the FBI, open your

garage, I want to see your car.’ He knew what the big white Russian

3

6

The prejudicial impact of these tactics was exacerbated still further by

contemporary world events: Russia invaded Ukraine on February 24,

2022, fifteen months before Aksenov’s trial, and in the months leading

up to trial Russia was widely portrayed in the media as the aggressor in

the conflict 4—paralleling the prosecution’s portrayal of Aksenov, a “big

white Russian,” as a threatening presence who intimidated the victim.

On appeal, the government argued that it had permissibly

invoked Aksenov’s “white”ness and Russian-ness to identify Aksenov—

rather than his Asian companion—as the person who spoke to Nguyen

wanted.”); 2-ER-70 (“the white man with an accent”); 2-ER-71 (“So

what we have is Nguyen reporting a big white Russian man with a

badge. . . [then] officers find a big white Russian man with a badge.”);

2-ER-73 (the gun’s fit in the holster “corroborates Peter Nguyen's

testimony about seeing a big white Russian man with a badge.

What the officers found was a big white Russian man with a

badge.”); 2-ER-74 (“He saw a big white Russian man with an

accent, and that’s what officers found.”); 2-ER-78 (“[Nguyen] was not

confused that a big white Russian man said those words to him”)

(emphasis added in all instances).

4 The Ninth Circuit granted judicial notice of pretrial news articles

related to the Russia-Ukraine war. App. 4a n.1; Fed. R. Evid. 201(b); see

Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,

960 (9th Cir. 2010) (“Courts may take judicial notice of publications

introduced to indicate what was in the public realm at the time, not

whether the contents of those articles were in fact true.” (citation

omitted)).

7

at the door, and to show that he fit Nguyen’s description of the speaker

as a “white man.” But, Akesnov argued, the jury could clearly see that

Aksenov was a white man, and Aksenov never tried to shift blame to

the translator. The overwhelming number and frequency of the

prosecutor’s and prosecution witnesses’ references to his Russian-ness,

whiteness, large size, and foreign accent, he urged, was out of all

proportion to the issues.

The Ninth Circuit denied relief, holding that no violation of Mr.

Aksenov’s Fifth Amendment due process or equal protection rights had

occurred. The Court acknowledged that “[a]ppeals to racial, ethnic, or

religious prejudice during the course of a trial violate a defendant’s

Fifth Amendment right to a fair trial” as well as his “due process and

equal protection rights.” (App. 5a.) Yet it held no such violations had

taken place because “the Government referenced Aksenov’s race,

ethnicity, nationality, and physical characteristics only to identify him

as the individual who committed the crime,” and, it believed, “[t]he

record is devoid of evidence that the Government made ethnic

generalizations or attempted to connect Aksenov’s criminal conduct to

his ethnicity or nationality.” (App. 5a.)

8

VI.

REASONS FOR GRANTING THE WRIT

Federal and state courts have uniformly recognized that explicit

appeals to racial, ethnic, or religious stereotypes violate criminal

defendants’ rights to due process and equal protection. Yet courts have

not clearly recognized what should be obvious from that premise: that

implied appeals to racial or ethnic stereotypes are unconstitutional as

well. The Second and Seventh Circuits, as well as several state supreme

courts, including those of Washington, Idaho, and Hawaii, have

acknowledged this, expressly holding that implicit racial and ethnic

stereotypes at trial violate the Constitution. But the Ninth Circuit

refused to recognize that core principle here, dismissing the

prosecution’s ceaseless and irrelevant references to Mr. Aksenov’s race

and nationality as constitutionally permissible because not expressly

linked to stereotypes. Certiorari is needed to bring the Ninth Circuit

into line with what the Second and Seventh Circuits, and state courts of

last resort, have recognized: it is the effect and implications of raciallybiased arguments, not their express articulation, that implicate the

protections of the Fifth and Fourteenth Amendments.

9

A.

Courts Have not Uniformly Recognized the

Constitutional Intolerability of Implied, Rather than

Explicit, Stereotypes at Criminal Trials.

1.

Courts uniformly recognize the unconstitutionality

of explicit racial stereotypes.

Federal courts have long recognized the Constitutionally-

impermissible nature of expressly-drawn racial and ethnic stereotypes

at trial. The Supreme Court said in McKleskey v. Kemp that “the

Constitution prohibits racially biased prosecutorial arguments.”

McKleskey v Kemp, 481 U.S. 279, 309 n. 30 (1987). The Ninth Circuit

has applied this rule numerous times, reversing the defendants’ drug

convictions in United States v. Cabrera because the lead detective

testified that “Cubans” (the defendants’ national origin) commonly sold

drugs in Las Vegas and that the substance in the case matched “[the]

typical way that a lot of Cubans do their drugs.” United States v.

Cabrera, 222 F.3d 590, 592-94 (9th Cir. 2000). Similarly, in Bains v.

Cambra the Ninth Circuit vacated a murder conviction because the

prosecutor “relied upon clearly and concededly objectionable arguments

for the stated purpose of showing that all Sikh persons (and thus Bains

by extension) are irresistibly predisposed to violence when a family

member has been dishonored.” Bains v. Cambra, 204 F.3d 964, 975

10

(9th Cir. 2000). The Second Circuit, similarly, reversed the defendant’s

conviction in McFarland v. Smith when prosecutor argued that a black

police officer would not fabricate testimony against a black defendant.

McFarland v. Smith, 611 F.2d 414, 416–19 (2d Cir.1979). The Fourth

Circuit found a due process violation in Miller v. North Carolina, when

the prosecutor argued to the jury that a white woman (such as the

victim) would never consent to sex with a black man (such as the

defendant). Miller v. North Carolina, 583 F.2d 701, 706-08 (4th Cir.

1978). And numerous other federal circuits have held similarly. 5

See United States v. Runyon, 707 F.3d 475, 494 (4th Cir. 2013),

(defendant’s due process rights were violated by trial court’s

introduction into evidence of a police interrogation video containing

“stereotyping and insulting notions about how ‘an honorable Asian man’

is supposed to act.”) (internal quotations omitted); Moore v. Morton, 255

F.3d 95, 119-20 (3d Cir. 2001) (reversing defendant’s rape and robbery

conviction on habeas corpus review because the prosecutor suggested to

the jury that the defendant, who was African-American, selected his

victim because he preferred white women as sexual partners); United

States v. Richardson, 161 F.3d 728, 735-37 (D.C. Cir. 1998) (reversing

criminal conviction on plain error review where prosecutor, during

closing, used the phrase “we don’t all look alike” and invoked racial

stereotypes to suggest defense counsel, who was white, could not

understand the world of the defendant, who was black); United States v.

Vue, 13 F.3d 1206, 1213 (8th Cir. 1994) (reversing drug and firearms

convictions where the prosecution presented testimony that individuals

of Hmong ancestry (as the defendant was) often received shipments of

drugs.); United States v. Sanchez, 482 F.2d 5, 9 (5th Cir. 1973)

(reversing defendant’s criminal conviction because the prosecutor’s

5

11

All of these cases, however, involved express stereotypes: the

prosecutor making explicit generalizations about a particular ethnic or

racial group. None found due process violations from implied

stereotypes, such as arise from inordinate prosecutorial emphasis on

race or nationality with no proper purpose.

2.

The Second and Seventh Circuits, and several state

supreme courts, have recognized the

unconstitutionality of implied racial stereotypes.

The Second and Seventh Circuits, however, have recognized the

unconstitutionality of implied stereotypes at trial. In United States v.

Weiss, the Second Circuit described its precedent as holding that “[e]ven

a reference that is not derogatory may carry impermissible

connotations, or may trigger prejudiced responses in the listeners that

the speaker might neither have predicted nor intended.” United States

v. Weiss, 930 F.2d 185, 196 (2d Cir. 1991) (quoting McFarland v. Smith,

611 F.2d 414, 417 (2d Cir. 1979)).

The Seventh Circuit, similarly, has held that the Constitution

prohibits “race-conscious arguments” that “draw[] the jury’s attention to

argument was “replete with racial and political undertones” and blamed

the defendant, who was Hispanic, for lacking “chicannismo” and

“machismo”).

12

a characteristic that the Constitution generally demands that the jury

ignore,” and that “a racial remark is improper if it is ‘intentionally

injected into volatile proceedings where the prosecutor had targeted the

defendant’s ethnic origin for emphasis in an attempt to appeal to the

jury’s prejudices.’” Aliwoli v. Carter, 225 F.3d 826 (7th Cir. 2000)

(quoting United States v. Hernandez, 865 F.2d 925, 928 (7th Cir.1989).)

Several state courts of last resort have similarly recognized the

constitutional problems with repeated, unjustified references to a

defendant’s race or nationality. In State v. Bagby, 522 P.3d 982 (2023),

the Washington Supreme Court vacated a black defendant’s conviction

for residential burglary, assault, and harassment where the prosecution

suffused the trial with references to his and other (white) witnesses’

race and “citizenship” (even though Mr. Bagby was an American

citizen), and referred to white witnesses as “Good Samaritans” while

not bestowing that description on the only other black witness. Id. at

994-998. As in this case, the prosecution characterized its references to

race as necessary to establish the defendant’s identity as the

perpetrator. Id. at 994. But the court rejected that rationale, observing

that the defendant “did not deny that he was the person involved in the

13

relevant incidents,” and “[t]he only issue at trial was whether his

actions constituted a crime.” Id. The court expressly recognized that

racial generalizations need not be explicit:

Not all appeals to racial prejudice are blatant . . . Like

wolves in sheep’s clothing, a careful word here and there can

trigger racial bias [and] [b]iases are often activated through

the use of coded language or racial code words such as

phrases or symbols that play upon race . . . without explicitly

raising the race card.

Id. at 993 (cleaned up).

Similarly, in Carter v. State. 241 P.3d 476 (Wyo. 2010), the

Wyoming Supreme Court held it was error for the prosecutor—in a case

involving an assault by the defendant (who was black) on a victim (who

was white)—to repeatedly refer to the defendant as “the black guy” and

the victim as “the white guy.” Id. at 480-81 (holding that “the record

clearly reflects the alleged error,” though the error was not plain

because, in context, the references were for the legitimate purpose of

identifying the individuals involved). Though the Wyoming Supreme

Court did not find plain error under the circumstances of the case, its

finding of error at all confirmed the impermissibility of repeated racial

references that imply stereotypes..

14

The Hawaii Supreme Court took the same view in State v. Rogan,

984 P.2d 1231, 1240 (Haw. 1999). There, the court reversed a sexual

assault conviction because the prosecutor argued to the jury that

finding “some black, military guy on top of your daughter” is “every

mother’s nightmare.” Id. at 1238. The court deemed the remark “clearly

inflammatory inasmuch as it raised the issue of and cast attention to

[the defendant’s] race,” and held that “[b]ecause there was no dispute as

to the identity of the perpetrator,” it “was not a legitimate area of

inquiry inasmuch as race was irrelevant to the determination of

whether [the defendant] committed the acts charged.” Id. at 1240.

Though no express racial stereotype was spelled out for the jury, the

prosecution’s injecting of race into its argument, without a proper

purpose, invoked a racial stereotype that violated due process and

destroyed the fairness of the trial.

3.

The Ninth Circuit has not clearly recognized the

impermissibility of implied racial stereotypes, as this

case reflects.

The Ninth Circuit, however, has not specifically recognized

implied stereotypes as unconstitutional. To the contrary, in United

States v. Santiago, it held that “use of a racial term” is unlikely to be

15

prejudicial “[i]f the prosecution’s case, overall, was a dispassionate and

intelligent presentation of the evidence.” United States v. Santiago, 46

F.3d 885, 891 (9th Cir. 1995) (internal quotation omitted). In that case,

involving a prison murder allegedly committed to gain admission to the

Mexican Mafia, the Ninth Circuit held that neither due process or equal

protection was violated by prosecutors’ and witnesses’ use of the term

“Mexican Mafia,” testimony that a witness met the defendant at a

prison recreation center for Mexican Americans, a witness’s statement

that he was once in a gang known as the Latin Kings, or testimony that

25 percent of the Hispanic population would have the same blood type

as the defendant. Id. at 891 (“Any conceivable negative innuendo did

not approach the level of potential prejudice present in cases in which

no reversible error was found.”)

Aksenov’s case presents an even clearer example of the Ninth

Circuit failing to acknowledge implied racially-biased arguments as

unconstitutional. The Ninth Circuit did not even address whether the

prosecutor’s relentless deployment of the terms “big white Russian” and

“threatening” at Aksenov’s trial implicated due process or equal

protection. Instead, it bypassed the Constitutional inquiry altogether by

16

treating these references as not stereotypes at all because no explicit

generalizations were made. In denying Mr. Aksenov relief, the Ninth

Circuit concluded that “[t]he record is devoid of evidence that the

Government made ethnic generalizations or attempted to connect

Aksenov’s criminal conduct to his ethnicity or nationality.” (App. 5a.) It

never considered whether gratuitous racial references can be

impermissible even absent “ethnic generalizations” or “attempt[s] to

connect” race or nationality to criminal conduct.

B.

This Court Should Grant Certiorari to Clarify that the

Constitution Prohibits Implied Stereotypes Based on

Race and Nationality.

Certiorari is needed to bring Ninth Circuit precedent into line

with the jurisdictions that recognize that implied race- and nationalitybased stereotypes violate the Constitution—and to clarify that rule

generally. The right not to be tried based on one’s race, religion, or

national origin is of unparalleled importance, and lies at the very

foundation of a fair trial. Indeed, the Supreme Court has repeatedly

recognized the exceptionally invidious nature of racial stereotypes, and

the heightened care needed to ensure they are afforded no place in

criminal proceedings. In Buck v. Davis, the Supreme Court vacated a

17

death sentence while holding that the prejudicial impact of testimony

linking race to the capital sentencing decision “cannot be measured

simply by how much air time it received at trial or how many pages it

occupies in the record” and “[s]ome toxins can be deadly in small doses.”

Buck v. Davis, 580 U.S. 100, 122 (2017). And in Peña-Rodriguez v.

Colorado this Court created a racial bias exception to the “noimpeachment rule” that ordinarily precludes inquiry into jury

deliberations, upon clear evidence that racial bias tainted the verdict.

Peña-Rodriguez v. Colorado, 580 U.S. 206, 211 (2017). 6 This Court

instructed that “[i]t must become the heritage of our Nation to rise

above racial classifications that are so inconsistent with our

commitment to the equal dignity of all persons.” Id. at 221.

These decisions recognize the heightened danger that racial bias

and stereotypes pose to the integrity of criminal trials. As this Court

said in Peña-Rodriguez, “discrimination on the basis of race, ‘odious in

all aspects, is especially pernicious in the administration of justice.’”

See also Turner v. Murray, 476 U.S. 28, 36–37 (1986) (holding

that “a capital defendant accused of an interracial crime is entitled to

have prospective jurors . . . questioned on the issue of racial bias”).

6

18

Peña-Rodriguez, 580 U.S. at 223 (quoting Rose v. Mitchell, 443 U.S. 545,

555 (1979)). “The jury is to be a criminal defendant’s fundamental

protection of life and liberty against race or color prejudice.” Id.

(internal quotation omitted); see also Smith v. Farley, 59 F.3d 659 (7th

Cir. 1995) (“Race occupies a special place in the modern law of

constitutional criminal procedure.”) “Permitting racial prejudice in the

jury system damages both the fact and the perception of the jury’s role

as a vital check against the wrongful exercise of power by the

State.” Pena-Rodriguez, 580 U.S. at 223 (internal quotation omitted).

Certiorari is needed to reaffirm these core premises, and to prevent

courts from turning a blind eye to racial stereotypes that are not

explicitly articulated.

C.

The Ninth Circuit’s Misguided Rule Prejudiced Aksenov

and Warrants Relief.

The Ninth Circuit’s refusal to recognize the unconstitutionality of

implicit appeals to racial prejudice had a real and prejudicial effect in

this case. Had the Ninth Circuit followed the approach of the Second

and Seventh Circuits, or Washington, Hawaii, and Wyoming Supreme

Courts, it might well have found the prosecutor’s implicit stereotypes

about white Russians unconstitutional so as to require vacatur of

19

Aksenov’s conviction. As in Rogan (the Hawaii case), and Bagby (the

Washington case) references to race and nationality were not needed to

resolve any issue of identity in this case, because identity was not in

dispute. The defense never argued that Aksenov’s companion—the

Asian interpreter—was the one who claimed to be “FBI.” And there was

never any disagreement that the person who spoke to Nguyen was a

white man with a Russian accent, who could only be Aksenov. The only

dispute was to whether or not Aksenov actually claimed to be with the

FBI. Indeed, defense counsel argued at trial it was implausible that

Aksenov would have pretended to be an FBI agent when he did not

speak fluent English and had a thick Russian accent, because “[n]obody

would think that story would fool anyone,” and that it made far more

sense to conclude that Aksenov, in his broken English, had instead told

Nguyen something like “I call FBI,” or “I don’t care. Call FBI.” (2-ER81.)

The harmfulness from the prosecutor’s stereotypes was

exacerbated by the weakness of the other evidence against Aksenov.

Nguyen was the sole witness who testified that he heard Aksenov say

he was “FBI,” and Nguyen’s testimony was subject to doubt: as the

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defense argued, Nguyen could easily have misheard what Aksenov said

in his broken, heavily-accented English during (what Nguyen admitted

was) a confused and stressful interaction. Other witnesses present

during the interaction (including the interpreter) did not testify. And

the defense presented evidence that Nguyen’s account of the incident

had evolved over time, from his initial call to the police to his testimony

at trial. 7 In a case that hinged entirely on the precise words used, where

Aksenov was not a native English speaker, and where Nguyen’s sole

testimony was fluctuating and unreliable, at least a reasonable doubt

exists as to whether the jury would have unanimously convicted

Aksenov had it not been barraged with descriptions of him as a

threatening “big white Russian.” Only one juror would have needed to

find a reasonable doubt to change the outcome. Buck, 580 U.S. at 120

7 For example, whereas Nguyen told a 911 dispatcher during the

incident that the man at his door was “waving” a badge (5-ER-621), he

testified at trial that the man pulled up his shirt to reveal the badge. (3ER-301, 303-04.) And whereas Nguyen had told an officer at the scene

that he “didn’t really look” at the badge (5-ER-628), he testified at trial

that the man’s badge had blue ribbons and eagle heads on it. (3-ER-30203.)

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(asking whether, but for trial counsel’s errors, “at least one juror would

have harbored a reasonable doubt”).

VII. CONCLUSION

For the foregoing reasons, Aksenov respectfully requests that this

Court grant his petition for a writ of certiorari.

Respectfully submitted,

CUAUHTEMOC ORTEGA

Federal Public Defender

DATED: September 2, 2025

By: __/s/ Margaret A. Farrand____

MARGARET A. FARRAND*

Deputy Federal Public Defender

Attorneys for Petitioner

*Counsel of Record

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