Prosecutor’s Flub Gives Rise to Smuggling Retrial

(CN) - The 9th Circuit vacated a drug-smuggling conviction on Tuesday because the prosecutor told jurors that exonerating the defendant would "send a memo to all drug traffickers" that they could get off by claiming coercion.

Authorities caught Arturo Sanchez in 2008 with 64 pounds of cocaine hidden in his Passat as he crossed the Mexican border into California's Imperial Valley. Sanchez, a U.S. citizen who at the time lived in Mexico with his family, told customs agents that he thought he was smuggling marijuana, and that he feared for his family's safety. Later, at trial, Sanchez said he had been forced to smuggle the cocaine by drug cartel members who had threatened to harm his wife and children. He also said that corrupt Mexican police could not help him.

In closing arguments, the prosecutor had little compassion for the duress claims.

"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," the prosecutor said, as quoted in the 9th Circuit's ruling. "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 jury convicted, leading Sanchez to claim on appeal that the prosecutor's statement was unfairly prejudicial. The 9th Circuit agreed Tuesday, finding that the prosecutor's "send a memo" speech suggested that an acquittal would embolden other smugglers.

"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," Judge Harry Pregerson wrote a three-judge panel in Pasadena. "The obvious implied consequence of such a message would be increased lawbreaking, because couriers would be less afraid of conviction. Thus, 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."

If Sanchez's lawyer had objected to the statement during the trial, the judge likely could have done something to avoid a reversible error, according to the court. As it is, there was a "high risk that the misconduct influenced the jury's deliberations," Pregerson wrote.

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