Sunday, November 06, 2011

Case o' The Week: Sanchez Sends a Memo -- Prosecutorial Misconduct in Closing Arguments

Why don’t we send a memo to all federal prosecutors, to all AUSAs in the Ninth Circuit —why not our nation while we’re at it? Send a memo to them and say, "dear prosecutors, this an argument that you cannot make in a criminal trial." United States v. Sanchez, 2011 WL 5149141 (9th Cir. Nov. 1, 2011), decision available here.

Players: Decision by Judge Pregerson (above left), joined by Judges Fisher and Berzon.

Facts: After a narcotics dog alerted on Sanchez’s car at the Mexican border, a search revealed 29 kilos of cocaine in hidden compartments. Id. at *1. Sanchez told an ICE agent he thought marijuana had been hidden in the car, asked the agent to “help him,” and explained that he wanted his family to be safe. Id. At trial Sanchez described the duress that a Mexican cartel had exerted on him to smuggle the drugs, threatening his family if he refused. Id. at *2.

In the rebuttal closing argument, the AUSA argued, “[W]hy don’t we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we’re at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don’t say it at primary and secondary, they’ll get away with it if they just say their family was threatened. Because they don’t trust Mexican police, and they don’t think that the U.S. authorities can help them. Why don’t we do that?” Id. at *2.

Sanchez was convicted on both cocaine counts. Id.

Issue(s): “Arturo Sanchez appeals his convictions for importation and possession of cocaine. He asserts that the last statement made by the prosecution in its closing rebuttal argument rendered the trial unfair.” Id. at *1. “Sanchez contends that the ‘send a memo’ statement made by the prosecutor during his closing rebuttal was improper argument. Sanchez did not raise this objection before the district court. Thus, we review for plain error.” Id. at *2.

Held: “We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial. We reverse Sanchez’s convictions and remand for a new trial.” Id. at *1.

Of Note: Any defense win from a prosecutorial misconduct challenge is welcome. A defense win, on plain error review – now that’s an opinion to add to a trial binder.

As is its wont, the government in Sanchez tries to salvage the conviction by hiding behind the general milk-toast jury instructions (“what the lawyers say is not evidence.”) Id. at *4. Judge Pregerson ain’t buying it: “curative instructions fail to neutralize the harm of improper statements by a prosecutor when they do not mention the specific statements of the prosecutor and are not given immediately after the damage is done.” Id. at *4 (quotations and citation omitted).

Sanchez is doubly important: as a thoughtful example of a great prosecutorial misconduct analysis, and as proof that plain error review, honestly undertaken, can still cost the government a conviction.

How to Use: What, exactly, was wrong with the prosecutor’s “send the memo” argument? An AUSA can’t urge a conviction to “protect community values, preserve civil order, or deter future lawbreaking.” Id. at *3 (quotations and citation omitted). An AUSA can’t comment on the “social ramifications of the jury’s reaching a verdict,” and it is “improper to make statements designed to appeal to the passions, fear, and vulnerabilities of the jury.” Id. (quotations and citations omitted). In Sanchez, the AUSA managed to hit all three of these forbidden arguments. Consider reviewing these verboten themes before a prosecutor’s closing argument, to tune one’s ear for potential objections.

For Further Reading: The Ninth’s loss was California’s gain, when Governor Brown nominated Goodwin Liu to the California Supreme Court. Having lost one great nominee to a state Supreme Court, President Obama has decided to steal back another. On November 2, President Obama nominated Arizona Supreme Court Vice-Chief Justice Andrew Hurwitz to the Ninth Circuit, to replace Judge Mary Schroeder (who is going senior status). See press release here.

How is Hurwitz on criminal law? Well, he argued the lead Apprendi death penalty case, Ring v. Arizona, before the Supreme Court on behalf of death row inmates – and won, 7-2! See Ring summary here.

Image of the Honorable Harry Pregerson from Image of the Honorable Justice Andrew Hurwitz from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


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