Ninth Circuit affirms conviction of man who threw ‘ice’

The U.S. Court of Appeals for the Ninth Circuit has affirmed the conviction and prison sentence of a man who threw a small baggie of crystal meth into a casino trash can in April 2016.

Ninth Circuit judges ruled that U.S. District Court for the NMI Chief Judge Ramona V. Manglona did not abuse her discretion by admitting the testimony of a drug supplier who had testified against Yang Zou.

Federal jurors found Zou guilty in April 2017 of possession of a controlled substance with intent to distribute at least five grams of methamphetamine on April 15, 2016.

Zou, a Chinese national, was accused of throwing 44 grams of methamphetamine wrapped in a plastic bag into a trash can inside the restroom of the Best Sunshine casino in Garapan.

He was sentenced to eight years and one month in prison. He appealed to the Ninth Circuit.

According to the Ninth Circuit decision issued by Chief Judge Sidney R. Thomas and Judges Consuelo M. Callahan and Morgan Christen, the U.S. government met its burden to establish the admissibility of the testimony of the prosecution witness Yang Kang Chen under Federal Rule of Evidence in the case against Zou.

The Ninth Circuit judges said that, given the weight of the evidence against Zou, even if the admissibility of Chen’s testimony was error, it was harmless.

Zou argued, through counsel, that the District Court erred in admitting “other acts” evidence in allowing prosecution witness Chen to testify that he (Zou) was one of his “ice” suppliers.

Chen had testified against Zou during the trial in a plea deal with the U.S. government. He was sentenced to 15 months in prison for distribution of methamphetamine.

The defense had objected to the admissibility of Chen’s testimony. Manglona overruled the objection and gave the jury limiting instructions.

In affirming the conviction and sentence, the Ninth Circuit judges said they reviewed Manglona’s evidentiary rulings for abuse of discretion.

The judges said there was evidence that on April 16, 2016, in response to a report of suspicious activity at Best Sunshine casino, the Commonwealth Casino Commission enforcement officer followed Zou into the restroom, saw Zou enter the handicap stall, heard him move the trash can and flush the toilet, and then followed him out of the casino.

A cleaning attendant had been cleaning the restroom when Zou entered. After Zou left the restroom, the attendant checked the trash can in the handicap stall and found something wrapped in plastic.

The attendant opened the plastic wrap to find two red Marlboro cigarette boxes containing small Ziploc bags of what appeared to be drugs.

It was later confirmed that the Ziploc bags contained approximately 40 grams of 97 percent pure methamphetamine.

Two of the eight fingerprints on the exterior plastic wrap matched those of Zou’s.

Chen testified at trial that he started selling methamphetamine in 2014 and that Zou was one of his suppliers.

According to Chen, Zou supplied Chen with methamphetamine three or four times every month, from September 2015 until July 2016.

Each time, Zou provided Chen with an average of 50 grams of methamphetamine concealed in red Marlboro cigarette boxes and charged Chen $8,000, which equated to about $160 per gram.

Chen sold the drugs for about $220 per gram.

The Ninth Circuit judges said Chen’s testimony was directly relevant to Zou’s charge.

First, the judges said, the intent or knowledge are elements of the crime of possessing methamphetamine with intent to distribute.

Second, the judges said, the evidence of Zou previously supplying methamphetamine to Chen from September 2015 until July 2016 is not too remote because it “occurred during the pendency of the [events of April 16, 2016] with which [defendant] is charged.”

Third, the judges said, Chen’s testimony is sufficient to support a finding that Zou committed the other act.

Fourth, the judges said, even though “similarity is not always a prerequisite to admissibility under Rule 404(b),” the other acts evidence here was very similar to the current charge—supplying methamphetamine in a Marlboro cigarette box with the intent to sell.

Zou also contended that the District Court abused its discretion in not excluding the evidence.

Zou argued that the evidence “inflamed the jury against Zou” and the prosecutor’s closing remark that “that’s what he does” was unfairly prejudicial.

The Ninth Circuit judges said the evidence here was probative because it showed Zhou intended to distribute the methamphetamine, knew that the Marlboro boxes contained methamphetamine, and did not mistakenly place his fingerprints on the exterior plastic wrap of the Marlboro boxes.

The judges said any prejudice that may have occurred was minimized by the District Court’s limiting instructions to the jury, both before Chen’s testimony and at the close of evidence.

Zou further argued that even if the evidence was inadmissible, the error was not harmless. The Ninth Circuit judges disagreed.