Prosecutor’s Sarcasm Costs Coke Conviction

row of handcuffed menMemo to prosecutors:  don’t go too far with the sarcasm in closing arguments, it could cost you.

A federal appeals court has overturned the drug smuggling conviction of Arturo Sanchez, whose defense was that he drove 64 pounds of cocaine across the border from Mexico because the traffickers threatened his family.

During closing arguments Assistant U.S. Attorney Carlos Arguello told jurors someone should “send a memo” to drug traffickers to tell couriers to claim they were forced to do it.

The 9th U.S. Circuit Court of Appeals reversed the conviction saying prosecutors can’t point to a particular societal crisis and ask the juror to make a statement with their verdict.

“We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial,” wrote Judge Harry Pregerson.

In this case Sanchez’ defense was duress, that he did drive the drugs over the border but he did it out of fear for his family.  The “send a memo” statement encouraged the jury to convict Sanchez for reasons irrelevant to his guilt or innocence, in effect, if they acquitted him it would sent a message to other drug couriers to use that defense themselves.

Arguello was encouraging jurors to make a statement with their verdict, not about his guilt, but the potential social ramifications, according to Pregerson.  He was joined by Judges Marsha Berzon and Raymond Fisher.

Sanchez, a U.S. citizen living in Mexico, crossed the border at Calexico in 2008 with 64 pounds of cocaine.  He told a special agent he was paid $700 to carry the drugs but the thought it was marijuana, according to the opinion.  He also allegedly told the agent he was afraid of the people who gave him the drugs and that they knew where he lived in Mexico.  He reportedly asked the agent for help and the agent assumed he needed help because his family was in Mexico.

Although Sanchez did not expressly tell agents he had been threatened by the traffickers, he did ask for help protecting his family, according to the court.

The case goes back to federal court in San Diego for retrial.

Case:  U.S. v. Sanchez, No.  10-50192

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