Ninth Circuit Overturns Drug Conviction Because of Sarcastic Closing

Ginny LaRoe

SAN FRANCISCO — Prosecutors take note: A sarcastic comment can cost you your case.

The Ninth Circuit U.S. Court of Appeals on Tuesday junked a cocaine trafficking conviction, finding an assistant U.S. attorney's final flourish in closing arguments — suggesting an acquittal would encourage future criminal activity — was improper.

The opinion came in the appeal of Arturo Sanchez, a Southern California man arrested after border patrol agents found 64 pounds of cocaine in compartments of his car. At trial, Sanchez's public defenders asserted a duress defense, saying drug smugglers threatened to kill his family if he didn't drive drugs across the Mexico border into California.

San Diego Assistant U.S. Attorney Carlos Arguello wrapped up his rebuttal closing with this message:

"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?"

Judge Harry Pregerson, writing for the unanimous three-judge panel, called it a "policy argument against acquittal." And he wrote that it appealed to the "passions, fears and vulnerabilities" of the jury.

Defense counsel did not lodge an objection to the statements at trial, so the judge did not issue any curative instructions, the court noted.

Also on the panel were Judges Marsha Berzon and Raymond Fisher.

So, will the reversal "send a memo" to prosecutors? Sanchez's appellate counsel is dubious.

"It's fairly common, unfortunately, that [prosecutors] make some sort of generalized appeal to the safety of the community," said David Zugman of San Diego's Burcham & Zugman. "It's a pretty effective argument, so I doubt if it will."

He expects Sanchez to be retried. A spokeswoman for the U.S. attorney's office in the Southern District of California declined to comment.


Law.com