throbber
Cite as: 568 U. S. ____ (2013)
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`Statement of SOTOMAYOR, J.
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`1
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`NOTICE: This opinion is subject to formal revision before publication in the
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`preliminary print of the United States Reports. Readers are requested to
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`notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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`ington, D. C. 20543, of any typographical or other formal errors, in order
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`that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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` BONGANI CHARLES CALHOUN v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
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` No. 12–6142. Decided February 25, 2013
`
`The petition for a writ of certiorari is denied.
`Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
`
`BREYER joins, respecting the denial of the petition for writ
`of certiorari.
`
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`I write to dispel any doubt whether the Court’s denial of
`certiorari should be understood to signal our tolerance of a
`federal prosecutor’s racially charged remark. It should
`not.
`
`Petitioner Bongani Charles Calhoun stood trial in a
`federal court in Texas for participating in a drug conspir-
`
`acy. The primary issue was whether Calhoun knew that
`the friend he had accompanied on a road trip, along with
`the friend’s associates, were about to engage in a drug
`transaction, or whether instead Calhoun was merely
`present during the group’s drive home, when the others
`attempted to purchase cocaine from undercover Drug
`Enforcement Agency (DEA) agents. Two alleged co-
`conspirators who had pleaded guilty testified to Calhoun’s
`knowledge. Law enforcement officers also testified that
`they discussed the drugs with Calhoun immediately before
`they broke cover to arrest the group, and that Calhoun
`had a gun when he was arrested. In his defense, Calhoun
`testified that he was not part of and had no knowledge of
`his friend’s plan to purchase drugs, that he did not under-
`stand the DEA agents when they spoke to him in Spanish
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`only, and that he always carried a concealed firearm, as he
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`

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`CALHOUN v. UNITED STATES
`
`Statement of SOTOMAYOR, J.
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` was licensed to do. It was up to the jurors to decide whom
`they believed.
`
`The issue of Calhoun’s intent came to a head when the pros-
`ecutor cross-examined him. Calhoun related that the
`night before the arrest, he had detached himself from the
`group when his friend arrived at their hotel room with a
`bag of money. He stated that he “didn’t know” what was
`happening, and that it “made me think . . . [t]hat I didn’t
`want to be there.” Tr. 125–126 (Mar. 8, 2011). (Calhoun
`had previously testified that he rejoined the group the
`next morning because he thought they were finally return-
`ing home. Id., at 109.) The prosecutor pressed Calhoun
`repeatedly to explain why he did not want to be in the
`hotel room. Eventually, the District Judge told the prose-
`cutor to move on. That is when the prosecutor asked,
`“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?”
`
`Id., at 127.
`Calhoun, who is African-American, claims that the
`
`prosecutor’s racially charged question violated his consti-
`tutional rights. Inexplicably, however, Calhoun’s counsel
`did not object to the question at trial. So Calhoun’s chal-
`lenge comes to us on plain-error review, under which he
`would ordinarily have to “demonstrate that [the error]
`‘affected the outcome of the district court proceedings.’”
`Puckett v. United States, 556 U. S. 129, 135 (2009) (quot-
`
`ing United States v. Olano, 507 U. S. 725, 734 (1993)). Yet
`in his petition for writ of certiorari, Calhoun does not
`attempt to make that showing. Instead, Calhoun contends
`that the comment should lead to automatic reversal be-
`cause it constitutes either structural error or plain error
`regardless of whether it prejudiced the outcome. Those
`arguments, however, were forfeited when Calhoun failed
`to press them on appeal to the Fifth Circuit. Given this
`posture, and the unusual way in which this case has been
`
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`2
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`

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`3
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`Cite as: 568 U. S. ____ (2013)
`
`Statement of SOTOMAYOR, J.
`
`litigated, I do not disagree with the Court’s decision to
`deny the petition.*
`
`There is no doubt, however, that the prosecutor’s ques-
`tion never should have been posed.
`“The Constitution
`prohibits racially biased prosecutorial arguments.” McCles-
`
`key v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argu-
`mentation is an affront to the Constitution’s guarantee
`
`of equal protection of the laws. And by threatening to
`cultivate bias in the jury, it equally offends the de-
`fendant’s right to an impartial jury. Judge Frank put the
`point well: “If government counsel in a criminal suit is
`allowed to inflame the jurors by irrelevantly arousing
`their deepest prejudices, the jury may become in his hands
`a lethal weapon directed against defendants who may be
`innocent. He should not be permitted to summon that
`thirteenth juror, prejudice.” United States v. Antonelli
`Fireworks Co., 155 F. 2d 631, 659 (CA2 1946) (dissenting
`opinion) (footnote omitted). Thus it is a settled profes-
`sional standard that a “prosecutor should not make argu-
`ments calculated to appeal to the prejudices of the jury.”
`ABA Standards for Criminal Justice, Prosecution Function
`and Defense Function, Standard 3–5.8(c), p. 106 (3d ed.
`1993).
`
`By suggesting that race should play a role in establish-
`ing a defendant’s criminal intent, the prosecutor here
`——————
`*The prosecutor’s comment was not an isolated one, but Calhoun
`
`similarly failed to challenge the reprise. During defense counsel’s
`closing argument, counsel belatedly criticized the prosecutor’s question.
`On rebuttal, the prosecutor responded: “I got accused by [defense
`
`counsel] of, I guess, racially, ethnically profiling people when I asked
`the question of Mr. Calhoun, Okay, you got African-American[s] and
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`Hispanics, do you think it’s a drug deal? But there’s one element that’s
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`missing. The money. So what are they doing in this room with a bag
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`full of money? What does your common sense tell you that these people
`are doing in a hotel room with a bag full of money, cash? None of these
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`people are Bill Gates or computer [magnates]? None of them are real
`estate investors.” Tr. 167–168 (Mar. 8, 2011).
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`4
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`CALHOUN v. UNITED STATES
`
`Statement of SOTOMAYOR, J.
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`tapped a deep and sorry vein of racial prejudice that has
`
`run through the history of criminal justice in our Nation.
`There was a time when appeals to race were not uncom-
`mon, when a prosecutor might direct a jury to “‘consider
`the fact that Mary Sue Rowe is a young white woman
`and that this defendant is a black man for the purpose of
`determining his intent at the time he entered Mrs. Rowe’s
`
`home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520
`(1945), or assure a jury that “‘I am well enough acquaint-
`
`ed with this class of niggers to know that they have got it
`
`in for the [white] race in their heart,’” Taylor v. State, 50
`Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecu-
`tor’s comment here was surely less extreme. But it too
`was pernicious in its attempt to substitute racial stereo-
`type for evidence, and racial prejudice for reason.
`
`It is deeply disappointing to see a representative of the
`United States resort to this base tactic more than a decade
`into the 21st century. Such conduct diminishes the dig-
`nity of our criminal justice system and undermines respect
`for the rule of law. We expect the Government to seek
`justice, not to fan the flames of fear and prejudice. In
`discharging the duties of his office in this case, the Assis-
`tant United States Attorney for the Western District of
`Texas missed the mark.
`
`Also troubling are the Government’s actions on appeal.
`Before the Fifth Circuit, the Government failed to recog-
`nize the wrongfulness of the prosecutor’s question, instead
`calling it only “impolitic” and arguing that “even assuming
`the question crossed the line,” it did not prejudice the
`outcome. Brief for United States in No. 11–50605, pp. 19,
`20. This prompted Judge Haynes to “clear up any confu-
`sion—the question crossed the line.” 478 Fed. Appx. 193,
`196 (CA5 2012) (concurring opinion). In this Court, the
`Solicitor General has more appropriately conceded that
`the “prosecutor’s racial remark was unquestionably im-
`proper.” Brief in Opposition 7–8. Yet this belated ac-
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` Cite as: 568 U. S. ____ (2013)
`
`Statement of SOTOMAYOR, J.
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`knowledgment came only after the Solicitor General
`waived the Government’s response to the petition at first,
`leaving the Court to direct a response.
`I hope never to see a case like this again.
`
`
`5

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