Tuesday, January 15, 2013
I'm on a Mexican, Whoa-Oh: 7th Circuit Finds Testimony About Mexican Methamphetamine Was Improperly Admitted
Federal Rule of Evidence 401 provides that
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Moreover, Federal Rule of Evidence 403 provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
So, let's say that in a case involving a Mexican citizen, a DEA officer testifies as follows:
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.
Is such evidence admissible under these Rules? According to the recent opinion of the Seventh Circuit in United States v. Ramirez-Fuentes, 2013 WL 28261 (7th Cir. 2013), the answer is "no."
In Ramirez-Fuentes, the facts were as stated above, with the defendant, a Mexican citizen and U.S. national being charged with one count of possession with the intent to distribute five hundred grams or more of methamphetamine and one count of possessing firearms in furtherance of a drug trafficking crime. At trial, the DEA agent gave the testimony referenced above, prompting the defendant to appeal after he was convicted.
On appeal, the government claimed that the testimony by the Agent (Agent Johnson) was relevant to whether the defendant possessed the methamphetamine with the intent to distribute. The Seventh Circuit disagreed, finding that
At no point during his testimony did Agent Johnson state that "Mexican methamphetamine" is the only type of methamphetamine produced for distribution or the most common type of methamphetamine distributed in the United States. Moreover, Agent Johnson testified separately to the quantity and purity of the recovered methamphetamine. 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 [the defendant] possessed the methamphetamine with the intent to distribute.
Rather, the Seventh Circuit concluded that
the references to "Mexican methamphetamine" invited the jury, albeit implicitly, to consider [the defendant]'s nationality in reaching its decision in the case. The jury could have consciously or subconsciously found it more likely that [the defendant], 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....Thus, 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.