Expert’s Improper References To The Defendant’s Ethnicity

Seventh Circuit concludes reference to “Mexican methamphetamine” was unnecessary and that “tying the race or ethnicity of a defendant to the racial or ethnic characteristics of a specific drug trade” was inappropriate and subject to exclusion as unfairly prejudicial; in contrast, expert testimony concerning the proximity of guns to drugs and the violence associated with drug case was probative to show whether the defendant possessed the firearms to further the drug trafficking crime and any prejudice was slight, in United States v. Ramirez-Fuentes, _ F.3d _ (7th Cir. Jan. 3, 2012) (No. 12-1494)

Expert testimony under FRE 702 may be subject to exclusion as unfairly prejudicial under FRE 403. As the Supreme Court noted in Daubert:

Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules.… Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.”

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (quoting Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). The Seventh Circuit considered two challenges to expert agent testimony which were based on claims of unfair prejudice.

In the case, defendant Ramirez-Fuentes was prosecuted for possessing 3.1 kilograms of methamphetamine with the intent to distribute and for possessing firearms in furtherance of a drug trafficking crime. At trial, a special agent testified as an expert about how the methamphetamine was manufactured:

There’s two different types of methamphetamine that we see here in the United States. One is what we call . . . Mexican methamphetamine because it’s made by Mexican nationals. Typically, either south of the border in Mexico or in super labs on the west coast like in California. The other kind of methamphetamine that we see is, for lack of a better term, homemade methamphetamine. And that’s the stuff that is made in small labs, box labs we call them sometimes, that you can make it in your kitchen using . . . pseudoephedrine or pseudophed.

Ramirez-Fuentes, _ F.3d at _. When asked if the seized bags in the case “fit the description of ‘Mexican methamphetamine’ or homemade methamphetamine, the agent responded, ‘[t]hat appears to be Mexican methamphetamine.’” Ramirez-Fuentes, _ F.3d at _.

On the issue of firearms, the prosecutor asked the agent about the “significan[ce] about finding guns in close proximity to drugs.” The agent responded:

That’s pretty common for us when we’re doing drug search warrants, drug cases. Because drug dealing is a cash business, there’s a lot of theft involved. There’s a lot of violence. It’s—when you’re doing drug deals and you get ripped off, it’s not like you can call the police and say hey, that guy just stole my pound of meth or stole my $20,000 that I was going [to use] to buy a pound of meth. So there’s a lot of violence associated with it and we see a lot of guns with the drugs.

Ramirez-Fuentes, _ F.3d at _. After the jury convicted the defendant as charged, for the first time on appeal he challenged the testimony about “Mexican methamphetamine” and violence connected with guns and drugs. On appeal, the challenges were reviewed for plain error since no objection had been made at trial.

References To “Mexican Methamphetamine”

The Seventh Circuit concluded that the references to “Mexican methamphetamine” were improper in the case: “even if the evidence was at all relevant under Rule 401, it should have nonetheless been excluded under Rule 403 because of the danger of unfair prejudice inherent in its admission.” The circuit found the relevance tenuous. Significantly, the government was not able to answer the panel’s question about “whether there was any chemical distinction between ‘Mexican methamphetamine’ and the type of methamphetamine that is produced in small, box labs.” Ramirez-Fuentes, _ F.3d at _ n.1.

As the circuit explained:

If the distinction between the two types of methamphetamine was important to the discussion of quantity or purity, which is something the government has been unable to establish, then Agent Johnson could have just as easily removed his reference to “Mexican methamphetamine” and “Mexican nationals” and testified that in his opinion, the type of methamphetamine at issue in this case was of a type generally produced in large quantities in “super labs” rather than in small, box labs using pseudoephedrine…. But the fact that the methamphetamine at issue is classified as “Mexican” or that it may have been produced by “Mexican nationals” did nothing to show that Ramirez-Fuentes possessed the methamphetamine with the intent to distribute. Instead, the references to “Mexican methamphetamine” invited the jury, albeit implicitly, to consider Ramirez-Fuentes’s nationality in reaching its decision in the case.

The jury could have consciously or subconsciously found it more likely that Ramirez-Fuentes, a Mexican citizen, would have possessed the methamphetamine with the requisite intent because of Agent Johnson’s suggestion that “Mexican nationals” produce methamphetamine for distribution. Our cases have made clear that a jury cannot consider a defendant’s race, ethnicity, or national origin in reaching a verdict.

Ramirez-Fuentes, _ F.3d at _ (footnote omitted).

The circuit noted that other courts similarly had held that references to ethnicity were inappropriate:

  • Second Circuit: United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992) (expert testimony about “travel by a Hispanic drug dealer and Hispanic middleman from the Capital District to Washington Heights, an area that is inhabited by Hispanics in thousands of apartments and is a source of drugs” was impermissible; “Injection of a defendant’s ethnicity into a trial as evidence of criminal behavior is self-evidently improper and prejudicial for reasons that need no elaboration here.”)
  • Eighth Circuit: United States v. Vue, 13 F.3d 1206, 1212-13 (8th Cir. 1994) (testimony by customs supervisor there "there are other populations of individuals from Southeast Asia in the Twin Cities area, but primarily the opium smuggling cases we have identified or we've investigated relate to Hmong individuals," which involved “95 percent” of the "[o]pium smuggling cases in this area" was impermissible)
  • Ninth Circuit: United States v. Cabrera, 222 F.3d 590, 594-96 (9th Cir. 2000) (reversing convictions based on detective testimony about the drug activity among “Cubans” in the defendants’ neighborhood and that the purchased drugs were packaged in a manner that was common for Cuban drug dealers and that Cubans tended to be flight risks); United States v. Nobari, 574 F.3d 1065, 1072 (9th Cir. 2009) (while references to the roles of Middle Eastern or Mexican individuals in methamphetamine distribution were improper, error was harmless)
  • D.C. Circuit: United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990) (in discussing the Jamaican drug trade, noting: “It is much too late in the day to treat lightly the risk that racial bias may influence a jury’s verdict in a criminal case.”)

Notwithstanding the error in admitting the challenged testimony, the circuit concluded that the defendant did not meet his burden to show plain error based on “overwhelming evidence” of guilt. Other evidence established his guilt, including his confession which was corroborated by other evidence.

Drug-Trade Violence Testimony

With regard to the second challenge to the expert testimony, the Seventh Circuit noted that it had “consistently allowed expert testimony ‘concerning the “tools of the trade” and the methods of operation of those who distribute various types of illegal narcotics’ because the average juror is not well versed in the mechanics of the drug trade,” subject to FRE 403. Ramirez-Fuentes, _ F.3d at _ (citing United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001) (noting agent’s “testimony did not establish that Allen had a gun, it simply aided the jury in determining why he had a gun”) (other citations omitted)).

The circuit concluded the challenged testimony was probative to show the defendant possessed the firearms to further the drug trafficking crime. The circuit dismissed the defense claim that the testimony should have been excluded “because it caused jurors to associate Ramirez-Fuentes with violent behavior.” The circuit concluded that given the probative value “any potential for prejudice was slight” and the sole “reference to violence came during a discussion about the connection between guns and drugs.” Ramirez-Fuentes, _ F.3d at _.

The Ramirez-Fuentes case provides a recent example where the expert testimony is considered in the context of unfair prejudice under FRE 403. In the case, was portion was unfairly prejudicial and a second was not. The case also serves as another caution against the use of ethnicity evidence.

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