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The Ninth Circuit Sends A Memo To Prosecutors About Closing Arguments

It’s bad-government-conduct-in-a-drug-border-crossing-case-from-the-Ninth-Circuit week here at the Federal Criminal Appeals blog. Yesterday, we blogged about the government’s argument that psychiatrists are qualified to read law enforcement records.

Today, we deal with the Ninth Circuit’s opinion in United States v. Sanchez.

cohdra100_0634.JPGMr. Sanchez crossed the border from Mexico with 64 pounds of cocaine in his car, a 2002 Passat. A customs officer, suspicious of the car’s German practicality, waived Mr. Sanchez to secondary inspection. A drug dog alerted to the car. The cocaine was found.

Mr. Sanchez was questioned by Customs agents. Mr. Sanchez said that he was afraid of the people who gave him the drugs to carry across the border. Mr. Sanchez asked the agent to help him because his family was in Mexico. The agent asked Mr. Sanchez for help finding the people who gave him the drugs. Mr. Sanchez asked if he could call his family. The agent allowed him to try to call, but the call did not go through.

Mr. Sanchez was indicted for importing and possessing cocaine.

At trial, Mr. Sanchez argued that he was worried his family would be hurt if he didn’t transport the drugs. He testified in his defense, and explained that he is a U.S. citizen who lived with his wife and children in Mexico. He was looking for work as a carpenter, when drug traffickers approached him. He refused.

The drug traffickers came back to him. They explained that they thought he would be a particularly effective courier since he was a U.S. citizen. They became more threatening. Mr. Sanchez explained that he was afraid that they would hurt his family. Finally, reluctantly, he agreed.

The government made its closing argument. Mr. Sanchez’s lawyer then made their closing argument. Sanchez’s lawyer argued that Mr. Sanchez was forced to import the drugs – that he was under duress when he agreed to take the drugs into the United States. For that reason, his lawyer argued, Mr. Sanchez should not be convicted of importing the cocaine.

The prosecutor gave his rebuttal argument.* Mocking Mr. Sanchez, he 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?

The implication, in case it isn’t clear, is that we should not really send a memo to drug traffickers, and that to acquit Mr. Sanchez was tantamount to drafting such a memorandum.

Mr. Sanchez’s lawyer did not object to the prosecutor’s “send a memo” argument. Until the appeal.

The law is clear that a prosecutor cannot argue that a person should be convicted to prevent larger societal ills, or to deter future lawlessness, or to take a stand for community values. A federal criminal trial is supposed to be about whether the person on trial committed the crime charged – not whether society is on a downward spiral.

The government argued to the Ninth Circuit that “send a memo” is just a fancy way to argue that Mr. Sanchez’s position was unreasonable (to parrot Fancy Nancy).

The Ninth Circuit thought that there are less fancy and problematic ways of making that point, and that a government lawyer has an obligation to avoid making illegal arguments in closing.

Even though Mr. Sanchez’s lawyer failed to object, the Ninth Circuit found the “send a memo” argument so out of bounds that it vacated the conviction and remanded. That’s a fancy way of saying Mr. Sanchez gets a new trial.

* Yes, in a federal criminal case, the prosecutor gets the first and the last word.

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