NO. IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA BONGANI CHARLES CALHOUN PETITIONER VS. UNITED STATES OF AMERICA RESPONDENT PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT APPEAL CAUSE NO. 11-50605 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CAUSE NO. 5:08-CR-351-2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS ROBERT J. FICKMAN SCHNEIDER & McKINNEY, P.C. TEXAS BAR NO. 06956500 TOM MORAN * 440 LOUISIANA, SUITE 800 440 LOUISIANA, SUITE 800 HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002 (713) 655-7400 (713) 951-9994 TELECOPIER: (713) 224-6008 TELECOPIER: (713) 224-6008 EMAIL: tom6294@aol.com *ATTORNEY IN CHARGE ATTORNEYS FOR PETITIONER
QUESTIONS PRESENTED During his cross examination of Petitioner, the attorney for the Government asked the following question: 1 You ve got African-Americans, you ve got Hispanics, you ve got a bag full of money. Does that tell you a light bulb doesn t go off in your head and say, This is a drug deal? The questions presented are: 1. Whether it is fundamental or structural error not amenable to meaningful review for the Government to resort to racial prejudice or stereotypes as an indicia of guilt? 2. If it is not structural error, is it always plain error for the Government to interject racial stereotypes into a trial in order to show the defendant s guilt? 1 Petitioner is African-American. i
LIST OF PARTIES Bogani Charles Calhoun.............................. Defendant-Petitioner The United States of America.......................... Plaintiff-Respondent ii
TABLE OF CONTENTS QUESTIONS PRESENTED........................................... i LIST OF PARTIES.................................................. ii INDEX OF AUTHORITIES.......................................... Cases....................................................... Statutes and Rules............................................. iv iv iv I. THE COURT OF APPEALS OPINION................................ 1 II. STATEMENT OF JURISDICTION.................................. 1 III. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED..... 1 IV. STATEMENT OF THE CASE..................................... 2 A. The Race-Based Question..................................... 3 B. The Court of Appeals Analysis................................ 3 VI. REASONS FOR REVIEW......................................... 4 A. Issue 1: Structural or Fundamental Error?........................ 4 B. Issue 2: Plain Error.......................................... 7 VII. CONCLUSION................................................. 8 CERTIFICATE OF SERVICE........................................ 10 iii
INDEX OF AUTHORITIES Cases Arizona v. Fulminante, 499 U.S. 279 (1991).............................. 5 Bains v. Cambra, 204 F.3d 964 (9th Cir. 2000)............................ 5 Chapman v. California, 386 U.S. 18 (1967)............................. 5, 6 McFarland v. Smith, 611 F.2d 414 (2d Cir. 1979)........................ 5, 6 th Miller v. North Carolina, 583 F.2d 701 (4 Cir. 1978)...................... 5 Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995)..................... 5, 6 United States v. Doe, 903 F.2d 16, 28 (D.C. Cir. 1990).................... 5, 6 United States v. Marcus, U.S., 130 S. Ct. 2159 (2010)............... 7, 8 United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973)...................... 5, 6 United States v. Vue, 13 F.3d 1206 (8th Cir. 1994)....................... 5, 6 Withers v. United States, 602 F.2d 124, 127 (6th Cir. 1979)................ 5, 6 Statutes and Rules 18 U.S.C. 3231................................................... 2 28 U.S.C. 1254(1).................................................. 1 28 U.S.C. 1291.................................................... 2 FED. R. CRIM. P. 52(b)................................................ 2 iv
SUP. CT. R. 10(a).................................................... 5 SUP. CT. R. 13...................................................... 1 U.S. CONST. amend. V.............................................. 2, 4 v
TO THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: COMES NOW BOGANI CHARLES CALHOUN, Petitioner herein, by and through his attorneys, TOM MORAN and ROBERT J. FICKMAN, and pursuant to SUP. CT. R. 13, files this petition for writ of certiorari and in support thereof, would show the Court as follows: I. THE COURT OF APPEALS OPINION Petitioner s conviction was affirmed by the United States Court of Appeals in an unpublished opinion filed June 7, 2012. The style of the case was United States th v. Bogani Charles Calhoun, No. 11-50605 (5 Cir. June 7, 2012). II. STATEMENT OF JURISDICTION Petitioner s conviction was affirmed on June 7, 2012, in an unpublished 2 opinion from the United States Court of Appeals for the Fifth Circuit. No motion for rehearing was filed. This is a direct appeal from a conviction in the United States District Court for the Western District of Texas. This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). III. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED No person should be held to answer for a capital, or otherwise 2 A copy of the opinion is attached hereto as Exhibit A. 1
infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land and naval forces, or in the Militia when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. CONST. amend. V. FED. R. CRIM. P. 52(b). (b) Plain error. A plain error that affects substantial rights may be considered even though it was not brought to the court s attention. IV. STATEMENT OF THE CASE This is a direct appeal from a conviction in a federal criminal case. The District Court had jurisdiction pursuant to 18 U.S.C. 3231. The Court of Appeals had jurisdiction to review a final judgment pursuant to 28 U.S.C. 1291. Petitioner was convicted after a jury trial of conspiracy to possess with intent to distribute five or more kilograms of cocaine, attempt to possess with intent to distribute five or more kilograms of cocaine and possession of a firearm during a drug trafficking offense. The District Court assessed his punishment at 10 years incarceration on the conspiracy count and attempted possession count, to run concurrently. It also assessed five years incarceration on the firearm count, to run 2
consecutively to the first two counts. A. The Race-Based Question The Court of Appeals described the applicable questioning as follows: Calhoun first argues that he is entitled to a new trial because the prosecutor asked a highly prejudicial and racially inflammatory question while cross-examining him and raised the sentiment again during the Government s closing argument. The question in dispute was, You ve got African-Americans, you ve got Hispanics, you ve got a bag full of money. Does that tell you a light bulb doesn t go off in your head and say, This is a drug deal? Calhoun responded, No, sir. Slip op. at 1-2. There was no objection. B. The Court of Appeals Analysis In its plain error analysis, the Court of Appeals held the improper racial overtone was isolated and the prosecutor moved onto a different topic; the prosecutor s remarks in final argument were in response to defense counsel s argument and focused on the large amount of money present; the error was mitigated by the District Court s instructions to the jury that statements and argument by the attorneys was not evidence; the District Court s action in voir dire in ensuring that no juror felt influenced by Petitioner s race; and the strength of the evidence against him. Slip op. at 2-3. 3
VI. REASONS FOR REVIEW There are cases in which the use of race is acceptable in criminal trials. For example, it goes without saying that a description of a perpetrator or victim would include race. Race would be relevant for an African-American to rebut allegations he was a member of the Aryan Brotherhood. 3 Other than such limited examples, race and ethnicity have no place in criminal trials. In the instant case, the Government s question was based on the racial and ethnic stereotype that when you have African-Americans around Hispanics in the presence of large sums of money, it must be a drug deal. Use of such racial stereotypes always violates the defendant s rights under the Due Process Clause and the Equal Protection Component of the Fifth Amendment, U.S. CONST. amend. V. This Court should send a message to all prosecutors in the United States that such foul, racial stereotypes have absolutely no place in American courtrooms. A. Issue 1: Structural or Fundamental Error? 1. Whether it is fundamental or structural error not amenable to meaningful review for the Government to resort to racial prejudice or stereotypes as an indicia of guilt? (1992). 3 The Aryan Brotherhood is a white racist prison gang. Dawson v. Deleware, 503 U.S. 159 4
Review is proper pursuant to SUP. CT. R. 10(a) in that the decision of the Court of Appeals conflicts with that of the Fourth Circuit in Miller v. North Carolina, 583 th F.2d 701 (4 Cir. 1978) (structural error and automatic reversal when prosecutor resorts to racial prejudice). Conversely, other circuits have applied the harmless error rule in Chapman v. California, 386 U.S. 18 (1967), or have applied no reasoned approach at all when error is preserved. In contrast, other circuits have applied varying forms of harmless- 4 error analysis to such prosecutorial misconduct. Thus, the circuits are split on whether the use of racial prejudice in a criminal proceeding constitutes a structural 5 error, which requires an automatic reversal, or a trial error, which requires harmless- error review. 6 Perhaps even more significantly, even those circuits that have applied a harmless error review to a prosecutor s injection of race into criminal proceedings do 4 See, e.g., Bains v. Cambra, 204 F.3d 964, 975-77 (9th Cir. 2000) (habeas case); Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995); United States v. Vue, 13 F.3d 1206, 1213 (8th Cir. 1994); United States v. Doe, 903 F.2d 16, 28 (D.C. Cir. 1990); McFarland v. Smith, 611 F.2d 414, 419-20 (2d Cir. 1979); Withers v. United States, 602 F.2d 124, 127 (6th Cir. 1979); United States v. Sanchez, 482 F.2d 5, 9 (5th Cir. 1973). 5 See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (explaining that structural errors defy analysis by harmless-error standards ). 6 See Fulminante, 499 U.S. at 307-08 (explaining that the Supreme Court has applied harmless-error review to trial errors). 5
not agree on the appropriate standard for determining harmlessness. The Second, Eighth, and District of Columbia Circuits have applied the harmless-beyond-a- 7 reasonable-doubt standard articulated in Chapman. Conversely, the Fifth, Sixth, and Seventh Circuits have applied either a different standard for measuring harmlessness or no standard at all. For instance, in the Sixth Circuit, courts must determine whether the prosecutor s tactics may have had a substantial influence upon the result 8 of a trial. The remaining circuits that have addressed the issue have not clearly stated what standard they are applying to determine whether the prosecutor s conduct 9 was harmless. Thus, the circuits are also divided regarding how to determine whether a prosecution s unconstitutional racial tactics are harmless. Therefore, this Court should grant review to determine whether the deliberate injection of racial prejudice or racial stereotypes into a criminal trial by the Government constitutes structural error and, if not, the standard of review to be used 7 See, e.g., Vue 13 F.3d at 1213; Doe, 903 F.2d at 27-28; McFarland, 611 F.2d at 419-20. 8 Withers v. United States, 602 F.2d 124, 127 (6th Cir. 1979) (quoting United States v. Grey, 422 F.2d 1043, 1046 (6th Cir. 1970)). 9 See, e.g., Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995); id. at 664 ( The cases hold that one or two isolated references to race or ethnicity, wholly unlikely to sway a jury, do not compel a new trial on federal constitutional grounds when the defendant s guilt is established by overwhelming evidence. ); United States v. Sanchez, 482 F.2d 5, 9 (5th Cir. 1973) ( Nor was the error harmless under the circumstances for it is impossible to conclude that the prosecutor s remarks did not weigh heavily with the jury in bringing about appellant s conviction. ). 6
in determining whether the Government s actions constitute reversible error. B. Issue 2: Plain Error 2. If it is not structural error, is it always plain error for the Government to interject racial stereotypes into a trial in order to show the defendant s guilt? This Court has held an appellate court may reverse based on plain error, that is error that is not preserved in the trial court, if: 1) there is error; 2) the error is clear and obvious rather than subject to reasonable dispute; 3) the error affected the defendant s substantial rights, which normally means that it affected the outcome of the proceedings in district court; 4) and, the error affects the fairness, integrity or public reputation of judicial proceedings. United States v. Marcus, U.S., 130 S. Ct. 2159, 2164 (2010). This Court should grant review to determine whether the Court of Appeals gave improper weight to Marcus factor 3, that is whether it erred in requiring the error to affect the outcome of the district court proceedings rather whether the error affected Petitioner s substantial right to be tried fairly based on the evidence, not racial stereotypes. There should be no reasonable dispute that the prosecutor s question was improper and that the error in asking the question was clear and obvious, thereby satisfying Marcus factors one and two. There should be no dispute that injection of 7
racial stereotypes into criminal trials affects the integrity or public reputation of judicial proceedings. This Court should grant review to decide if a criminal defendant s substantial rights are affected when the Government in any way asserts his guilt based on racial stereotypes. VII. CONCLUSION This Court should grant review to determine whether the Government commits reversible error when it resorts to racial or ethnic stereotypes as an indicia of guilt and, if the error is not structural or fundamental error requiring reversal, what standard should be used to determine if it is plain error or reversible error. The Court also should decide whether the use by the Government of racial and ethnic stereotypes is so contrary to the American criminal justice system that in a plain error review, a defendant s substantial right to be tried on the merits and not his race is violated even if the violation is not outcome determinative. Petitioner asserts that racial or ethnic stereotypes have no place in the American criminal justice system. He further asserts that this Court should take this opportunity to make that perfectly clear to everyone in the Department of Justice. 8
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court grant his petition for writ of certiorari, order full briefs and oral arguments and reverse his conviction and remand for a new trial. Respectfully submitted, Schneider & McKinney, P.C. Tom Moran* Texas Bar No. 14422200 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951-9995 Telecopier: (713) 224-6008 Email: tom6294@aol.com Robert J. Fickman Texas Bar No. 06956500 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 655-7400 Telecopier: (713) 224-6008 *Attorney in charge ATTORNEYS FOR PETITIONER 9
CERTIFICATE OF SERVICE I certify that a true and correct copy of the above document was served on the United States by mailing a copy, postage paid, to the Solicitor General of the United States, Department of Justice, 950 Pennsylvania Avenue, N.W., Room 5614, Washington, D.C. 20530-0001 on this Day of September, 2012. Tom Moran 10
Exhibit A Opinion of the Court of Appeals