A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click to download Opinion USA v. Sanchez

The United States Court of Appeals for the Ninth Circuit has issued an Opinion in the matter of UNITED STATES of America v. Arturo SANCHEZ, Jr., Appellant, 2011 WL 5149141, No. 10–50192 (Nov. 1, 2011).

The Appellant Arturo Sanchez was appealing his convictions for importation and possession of cocaine. He asserted that the last statement made by the prosecution in its closing rebuttal argument rendered the trial unfair. The Court of Appeals held that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial and reversed Sanchez’s convictions.

On May 26, 2008, Sanchez entered the United States from Mexico at the Calexico, California port of entry driving a 2002 Passat. A narcotics detector dog alerted to the rear side of the vehicle. A search revealed hidden compartments containing 29 kilograms, or 64 pounds, of cocaine.

An Immigration and Customs Enforcement special agent then interviewed Sanchez. Sanchez told the special agent that he knew that drugs were hidden in his vehicle, but that he was afraid of the people who gave him the drugs to transport, and that they knew where he lived in Mexico. At trial, Sanchez took the stand and testified that, although he knew he was driving a vehicle containing drugs, he had done so under duress because the drug traffickers had threatened his family.

The prosecutor delivered his closing argument, followed by the defense counsel’s closing argument. The prosecutor then commenced his rebuttal with remarks about the law of duress. At the end of his rebuttal, the prosecutor stated that the defense counsel was asking the jury to believe Sanchez’s duress claim even though Sanchez had said nothing about fearing for his family’s safety to the customs officers. The prosecutor then said:

Why 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?

Sanchez contended that the “send a memo” statement made by the prosecutor during his closing rebuttal was improper argument. However, Sanchez did not raise this objection before the district court and thus the court reviewed for plain error. Under the plain error standard, the court could only reverse Sanchez’s conviction if the “send a memo” statement was improper and substantially prejudiced the defendant’s trial. Even if both prongs of the test are met, the plain error doctrine authorizes the Courts of Appeals to correct only particularly egregious errors that seriously affect the fairness, integrity or public reputation of judicial proceedings. United States v. Young, 470 U.S. 1, 15 (1985).

The Court stated that prosecutors may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Similarly, prosecutors may not point to a particular crisis in society and ask the jury to make a statement with their verdict. Nor can prosecutors comment on the potential social ramifications of the jury’s reaching a verdict. Further, it is improper to make statements designed to appeal to the passions, fears and vulnerabilities of the jury.

The prosecutor’s “send a memo” statement urged the jury to convict for reasons wholly irrelevant to Sanchez’s guilt or innocence. The point of the “send a memo” statement was that if the jury acquitted Sanchez based on his duress defense, the verdict would in effect send a message to other drug couriers to use that defense themselves. By his “send a memo” statement, the prosecutor was encouraging the jury to come to a verdict based not on Sanchez’s guilt or innocence, but on the “potential social ramifications” of the verdict, and this was improper argument.

Under the plain error standard, reversal is appropriate only if the prosecutor’s improper conduct so affected the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendant of a fair trial. The Court noted that there was no curative instruction given to mitigate the prejudice of the “send a memo” statement. Even so, 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.

Here, before closing arguments, the district court gave an instruction that arguments, statements, questions, and objections by lawyers are not evidence. Then, immediately before the prosecutor’s “send a memo” statement, the district court reminded the jury to follow the jury instruction on the legal requirements of duress, and not to consider the lawyers’ statements as evidence. However, advising a jury that lawyers’ statement are not evidence is not equivalent to advising it to consider only the facts of the immediate case, rather than the possible societal consequences of its ruling. Moreover, once the “send a memo” statement was made, the district court did not address that specific statement, and gave no curative instruction. A generalized jury instruction that the statements of counsel were not evidence was not sufficient to dispel the level and type of prejudice generated by the prosecutor in this case. Thus, the district court failed to neutralize the harm caused by the prosecutor’s “send a memo” statement. Even in the absence of objections by defense counsel, the trial judge must be alert to deviations from proper argument and take prompt corrective action as appropriate.

Sanchez’s case came down to a battle over credibility. There was no dispute that he had committed all the elements of the crimes he was charged with, so the entire question of guilt or innocence centered on whether Sanchez had committed the crimes under duress. This case came down to a credibility determination—if the jury believed Sanchez, they would acquit him. Because the sole issue in Sanchez’s case centered on witness credibility, the “send a memo” statement likely affected the jury’s ability to decide the case fairly. The Court could not assume that the jury would have convicted Sanchez absent the prosecutor’s misconduct, given the scarcity of evidence for either side on the duress claim. Moreover, the prosecutor presented the “send a memo” rhetoric during his rebuttal, thus ensuring that it was the last argument the jury heard before going to the jury room to deliberate. This timing increased the risk that the inflammatory statement would improperly influence the jurors. Given the extent of the prosecutor’s misconduct in suggesting that Sanchez’s acquittal would encourage future lawbreaking, and the high risk that the misconduct influenced the jury’s deliberations, the Court held that the “send a memo” statement seriously affected the fairness, integrity or public reputation of judicial proceedings and reversed Sanchez’s convictions for plain error and remand for a new trial.

NOTE: So how long will it take for the U.S. Supreme Court to reverse this decision?

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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