Tuesday, November 01, 2011

U.S. v. Sanchez, No. 10-50192 (11-1-11) (Pregerson with Fisher and Berzon).

"Why don't we send a memo," said the AUSA in rebuttal argument, "to all drug traffickers" south of the border, indeed to everyone, that to get away with being caught as a courier, all they have to say is that their "family was threatened." Duress would be their acquittal ticket. Well, the 9th sent a published opinion that this was inflammatory, and prosecutorial misconduct. This required reversal, even under a plain error standard, because the prosecutor personalized the "send a message" argument with "send a memo" (Next? Send an e-mail or tweet?). The statement crossed the line, and went beyond fair response to defense argument. It was prejudicial because the defendant has said his family felt threatened when stopped, and the defendant had testified as part of his duress defense.


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