FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-50192 Plaintiff-Appellee,

D.C. No.

v.  3:08-cr-02529-L-1

ARTURO SANCHEZ, JR., OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted

May 4, 2011—Pasadena, California

Filed November 1, 2011

Before: Harry Pregerson, Raymond C. Fisher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

19805
COUNSEL

Carlos Arguello, II, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee. 

David J. Zugman, San Diego, California, for the defendantappellant.

OPINION

PREGERSON, Circuit Judge:

Arturo Sanchez appeals his convictions for importation and

possession of cocaine. He asserts that the last statement made

by the prosecution in its closing rebuttal argument rendered

the trial unfair. Sanchez further asserts that the district court

erred in denying his request for closing surrebuttal on his

duress defense. We hold that the prosecutor’s inflammatory

remarks delivered at the end of his closing rebuttal argument

were improper and prejudicial. We reverse Sanchez’s convictions and remand for a new trial.

19808 UNITED STATES v. SANCHEZ
BACKGROUND

1. The offense

On May 26, 2008, Arturo Sanchez entered the United

States from Mexico at the Calexico, California port of entry

driving a 2002 Passat. A customs officer referred Sanchez to

secondary inspection. There 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

told it was marijuana. Sanchez told the special agent he was

paid $700 to carry the drugs across the border. Sanchez also

told the special agent that he was afraid of the people who

gave him the drugs to transport, and that they knew where he

lived in Mexico. Sanchez asked the special agent, “Can you

help me?” Sanchez said he needed help because his family

was in Mexico, which the special agent assumed meant Sanchez was concerned for his family’s safety. When the special

agent asked Sanchez to help him track down Sanchez’s

accomplices, Sanchez said he wanted his family to be safe.

Later, Sanchez tried to call his family in Mexico, but the call

did not go through. 

Sanchez was indicted for importation of cocaine in violation of 21 U.S.C. §§ 952, 960, and possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At

trial, the customs officers and the special agent testified

regarding their interactions with Sanchez. 

2. Sanchez’s testimony

Sanchez took the stand and testified that, although he knew

he was driving a vehicle containing drugs, he had done so

under duress because drug traffickers had threatened his famUNITED STATES v. SANCHEZ 19809
ily. Sanchez testified that he is a U.S. citizen living in Mexico

with his wife and children. He met the drug traffickers in

March 2008 in Calexico, where Sanchez was looking for

work as a carpenter. When the traffickers learned Sanchez

was a U.S. citizen, they asked if he would transport marijuana

across the border for them. Sanchez refused, having been convicted once before for transporting marijuana in 2005. 

Over the next several weeks Sanchez twice encountered the

traffickers, and each time they were more threatening. He testified that the traffickers told him if he did not transport the

drugs for them, they would do something to his family. Sanchez believed the men were capable of carrying out this threat

because he knew the Mexican drug cartels were very violent.

Thus, he agreed to transport the drugs to the United States.

Sanchez testified he never called the Mexican police because

he believed they were corrupt and in the pocket of the drug

traffickers. Nor did he tell his wife, for fear that she would tell

her mother, who might go to the police. 

On cross-examination, Sanchez acknowledged that he

never expressly told the border authorities that he had been

forced to transport the drugs or that he was afraid the traffickers would hurt his family, because he did not feel safe doing

so. He did ask the border authorities for help protecting his

family, but did not explain why he feared for his family’s

safety. 

3. Closing arguments

Before closing arguments, Sanchez’s attorneys requested

that they be granted surrebuttal following the prosecutor’s

closing rebuttal argument because Sanchez had the burden of

proving duress. The court denied the request. The court

instructed the jury that Sanchez bore the burden of proving

duress by a preponderance of the evidence. The court also

instructed the jury that arguments, statements, questions, and

19810 UNITED STATES v. SANCHEZ
objections by the lawyers did not constitute evidence, and

could not be considered “in deciding what the facts are.” 

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.

The defense counsel objected that the prosecutor was misstating the law. Instead of ruling on the objection, the court

responded by reminding the jury to follow the court’s instructions, and by telling the jury that “what the lawyers say is not

evidence.” 

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 at primary or secondary inspection or to the ICE special agent. The

prosecutor then said:

[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?

Following this “send a memo” statement, the court said

“Okay. All right. Ladies and gentlemen, we have concluded.”

The bailiff was sworn and told to take the jury into the jury

room. After just over an hour of deliberation, the jury found

Sanchez guilty on both counts of the indictment. Sanchez

timely appealed.

UNITED STATES v. SANCHEZ 19811
DISCUSSION

Sanchez contends that the “send a memo” statement made

by the prosecutor during his closing rebuttal was improper

argument. Sanchez did not raise this objection before the district court. Thus, we review for plain error. United States v.

Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir. 2005).

Under the plain error standard, we can only reverse Sanchez’s

convictions if (1) the “send a memo” statement was improper,

and (2) the statement “substantially prejudice[d] [the] defendant’s trial.” United States v. Koon, 34 F.3d 1416, 1445 (9th

Cir. 1994), aff’d in part, rev’d in part on other grounds, 518

U.S. 81 (1996). Even if both prongs of the test are met, “[t]he

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. Bracy, 67 F.3d 1421, 1432 (9th Cir.

1995) (quoting United States v. Young, 470 U.S. 1, 15

(1985)). 

1. Impropriety

[1] “[P]rosecutors 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.” United States v. Nobari, 574 F.3d 1065, 1076 (9th

Cir. 2009) (quoting Koon, 34 F.3d at 1443) (internal quotation

marks omitted). Similarly, prosecutors may not “point to a

particular crisis in our society and ask the jury to make a

statement” with their verdict. United States v. Leon-Reyes,

177 F.3d 816, 823 (9th Cir. 1999); see also United States v.

Williams, 989 F.2d 1061, 1072 (9th Cir. 1993) (improper to

exhort jury to “[t]ell these defendants that we do not want

[methamphetamine] in Montana” (alteration in original)). Nor

can prosecutors comment on “the potential social ramifications of the jury’s reaching a . . . verdict.” Weatherspoon, 410

19812 UNITED STATES v. SANCHEZ
F.3d at 1149 (improper for prosecutor to say that “finding this

man guilty is gonna protect other individuals in this community”). Further, it is improper to make “statements designed to

appeal to the passions, fears and vulnerabilities of the jury.”

Id.

[2] The prosecutor’s “send a memo” statement urged the

jury to convict “for reasons wholly irrelevant to [Sanchez’s]

guilt or innocence.” Nobari, 574 F.3d at 1076. 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. This message would extend “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 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. Weatherspoon,

410 F.3d at 1149. This was improper argument. 

[3] The government contends that the “send a memo”

statement was “fair comment on the arguments raised in the

defense’s closing argument.” Appellee’s Br. at 21. The government asserts that the statement merely “served to impress

upon the jury that Sanchez advocated a wholly unreasonable

position” and “[Sanchez] was really trying to avoid criminal

liability on facts that anyone could assert at any time, whether

true or not.” Id. But the prosecutor could easily have made

these points without implying that other criminals would be

encouraged by Sanchez’s acquittal. Instead, the prosecutor

chose to present the argument in a manner that urged the jury

to look beyond the facts of the particular case, and to consider

that an acquittal might lead to future lawbreaking not just by

Sanchez, but by drug couriers throughout the United States

and Mexico. The prosecutor’s statement did not merely comUNITED STATES v. SANCHEZ 19813
ment on the evidence and arguments in the case, but also “appeal[ed] to the passions, fears and vulnerabilities of the jury”

by suggesting that an acquittal would make it easier for drugs

to come into the United States. Weatherspoon, 410 F.3d at

1149. Thus, we conclude that the “send a memo” statement

was improper argument.

2. Prejudice

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.’ ” Weatherspoon, 410 F.3d at 1151 (quoting United

States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992)). Put

another way, “[w]hen prosecutorial conduct is called in question, the issue is whether, considered in the context of the

entire trial, that conduct appears likely to have affected the

jury’s discharge of its duty to judge the evidence fairly.”

United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990).

[4] To determine whether prosecutorial misconduct has

deprived a defendant of a fair trial, we look to the substance

of any curative instructions, and the strength of the case

against the defendant absent the misconduct. See Weatherspoon, 410 F.3d at 1151.

A. Curative instructions

The prosecutor’s “send a memo” statement that an acquittal

would encourage future lawbreaking throughout the United

States and Mexico was the last part of his closing rebuttal

argument. The defense counsel raised no objection, and the

district court made no comment about the prosecutor’s statement. Instead, the court declared closing arguments concluded

and sent the jury to the jury room to deliberate. Thus, there

was no curative instruction to mitigate the prejudice of the

“send a memo” statement.

19814 UNITED STATES v. SANCHEZ
The government argues that because the district court

instructed the jury on two occasions before the “send a

memo” statement that “what the lawyers say is not evidence,”

the “potential effect of [the] prosecutor’s misstatements” was

neutralized. Appellee’s Br. at 23. This argument is unavailing.

We have held that curative instructions fail to “neutralize the

harm” of improper statements by a prosecutor when “ ‘[t]hey

[do] not mention the specific statements of the prosecutor and

[are] not given immediately after the damage [is] done.’ ”

Weatherspoon, 410 F.3d at 1151 (quoting United States v.

Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992)).

[5] The district court’s jury instructions do not meet the

Weatherspoon test. 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 responded to an objection by the

defense by reminding the jury to follow the jury instruction on

the legal requirements of duress, and not to consider the lawyers’ statements as evidence. Advising a jury that lawyers’

statements 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. Morever, once

the “send a memo” statement was made, the district court did

not address that specific statement, and gave no curative

instruction. Thus, under Weatherspoon, the district court

failed to neutralize the harm caused by the prosecutor’s “send

a memo” statement.

We acknowledge that Sanchez’s counsel bears some

responsibility for the error. Had the defense objected to the

prosecutor’s rebuttal, we have no doubt the district court

would have issued a strongly worded curative instruction. But

“even in the absence of objections by defense counsel, a ‘trial

judge should be alert to deviations from proper argument and

take prompt corrective action as appropriate.’ ” Id.

UNITED STATES v. SANCHEZ 19815
[6] The government cites to various cases for the proposition that a general jury instruction can “neutralize the effect

of a prosecutor’s misstatements,” but these cases are distinguishable. In United States v. Bracy, the prosecutor in closing

argument suggested that the demeanor of two of the defendants during their cross-examinations indicated that they were

afraid of their third co-defendant, “the imminent source of

evil in this courtroom.” 67 F.3d at 1431. On appeal, we found

these statements to be “a reasonable inference from the evidence presented.” Id. Specifically, the jury had already heard

evidence of the co-defendant’s “violent conduct” and “intimidation tactics,” and the fact that witnesses were afraid of him.

Id. Moreover, it was not improper for the jury “to weigh a

witness’s credibility based on his manner and demeanor on

the stand.” Id. We held that, under these circumstances, a general jury instruction declaring that “questions, objections,

statements, and arguments of counsel are not evidence” was

sufficient to neutralize any prejudice. Id. (alteration omitted)

[7] Unlike in Bracy, the “send a memo” statement in the

instant case was not a reasonable inference from the evidence,

nor did it relate to matters the jury was entitled to consider.

A defendant’s demeanor in the courtroom is arguably relevant

to determining his guilt or innocence, and in determining his

credibility. Thus, the statements in Bracy were not clearly

improper. In Sanchez’s case, however, the prosecutor was not

commenting on the defendant, but on the potential adverse

consequences of an acquittal, namely that the acquittal would

encourage and facilitate lawbreaking. The “send a memo”

rhetoric was designed to arouse and inflame the jury to return

a guilty verdict based on passion and prejudice. Bracy does

not compel the conclusion that a generalized jury instruction

that the statements of counsel are not evidence is sufficient to

dispel the level and type of prejudice generated by the prosecutor in this case.

In United States v. Amlani, the prosecutor at the beginning

of his closing argument referred to the Seventh Command19816 UNITED STATES v. SANCHEZ
ment as the source of the law against stealing. 111 F.3d 705,

714 (9th Cir. 1997). The defendant argued that this was an

“appeal to religious prejudice.” Id. We held that this “arguable appeal to the parochial inclinations of [a] jury” was

harmless. Id. The biblical reference was logically connected

to humorous statements made by the defendant regarding an

imaginary Eleventh Commandment, and the prosecutor also

linked the Seventh Commandment back to the specific federal

statutes under which the defendant was charged. Id. In this

context, a general jury instruction was adequate to address

any prejudice from the biblical reference. Id.

Whereas the reference to the Seventh Commandment in

Amlani was a minor point made at the beginning of the prosecutor’s closing argument, the “send a memo” rhetoric in Sanchez’s case was invoked by the prosecutor at the end of his

closing rebuttal argument, after which the jury commenced its

deliberations. See United States v. Carter, 236 F.3d 777, 788

(6th Cir. 2001) (finding it significant that “[t]he prosecutor’s

improper comments occurred during his rebuttal argument

and therefore were the last words from an attorney that were

heard by the jury before deliberations.”). Given the timing,

the impact was likely to be significant, and the court did not

intervene. 

Moreover, unlike in Amlani, the “send a memo” statement

was not logically connected to the testimony of Sanchez, or

to the elements of duress; instead, it was a policy argument

against acquittal. The statement in Amlani was not even an

argument in and of itself, but an effort to emphasize that stealing is wrong, something of which the jury did not need to be

reminded. The “send a memo” statement, in contrast, was a

fully developed argument raising the specter of future lawbreaking to divert the jury from its obligation to reach a verdict based only on the evidence. Thus, the challenged

UNITED STATES v. SANCHEZ 19817
statement in Amlani was far less prejudicial than the “send a

memo” statement.1

[8] Therefore, we hold that the general instructions the district court gave to the jury were insufficient to mitigate the

prejudice of the “send a memo” statement.

B. Strength of the government’s case

As we stated in Weatherspoon,

Another important factor contributing to the prejudicial effect of improper statements is the strength of

the case against a defendant. When the case is particularly strong, the likelihood that prosecutorial misconduct will affect the defendant’s substantial rights

1The other cases the government cites are also unavailing. In United

States v. McChristian, the general jury instruction was just one of several

factors weighing against reversal. The court also held that there was overwhelming evidence of the defendant’s guilt and that the defendant’s argument had invited most of the errors. 47 F.3d 1499, 1508 (9th Cir. 1995).

As will be discussed below, the evidence of Sanchez’s guilt (more specifically, the evidence that he was lying about the threat to his family) was

not overwhelming. Further, by merely putting forth a duress defense Sanchez did not invite a statement that juries who accept such defenses are

encouraging future lawbreakers. Thus, McChristian is distinguishable. 

The government’s final cited case, Tak Sun Tan v. Runnels, 413 F.3d

1101 (9th Cir. 2005), is distinguishable from the instant case for four reasons: (1) the conviction was reviewed under the highly deferential standard mandated by the Antiterrorism and Effective Death Penalty Act (id.

at 1111), unlike the direct review in Sanchez’s case; (2) the Tan court

found that the prosecutor had not acted improperly at all (id. at 1115),

whereas here the prosecutor’s statement was clearly improper; (3) the evidence against the Tan defendants was substantial (id.), whereas in Sanchez’s case the evidence that he fabricated his duress defense was not

substantial; (4) and the Tan trial court gave continuous instructions to the

jury throughout the trial to mitigate any prejudice (id.), whereas in Sanchez’s case the court gave two general instructions, and did nothing to

mitigate the prejudice after the “send a memo” statement was made. Thus,

Tan is unavailing to the government. 

19818 UNITED STATES v. SANCHEZ
is lessened because the jury’s deliberations are less

apt to be influenced. But as the case becomes progressively weaker, the possibility of prejudicial

effect grows correspondingly.

410 F.3d at 1151. In Weatherspoon, we found that the prosecutor had impermissibly vouched for the credibility of his witnesses, and had encouraged the jury to convict with improper

statements such as, “Convicting Mr. Weatherspoon is gonna

make you comfortable knowing there’s not convicted felons

on the street with loaded handguns,” and “finding this man

guilty is gonna protect other individuals in this community.”

Id. at 1146-50. We further concluded that the government’s

evidence against the defendant was not particularly strong:

“This was a comparatively close case that boiled down to a

battle over credibility.” Id. at 1151-52. Thus, the “prosecutorial statements that vouch[ed] for the credibility of witnesses and that encourage[d] the jury to act based on

considerations other than the particularized facts of the case

pose[d] a real danger to the defendant’s right to a fair trial.”

Id. at 1152. Because the trial court had not given an effective

curative instruction to remedy the unfairness, we reversed the

conviction for plain error. Id.

[9] As in Weatherspoon, 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. The

only evidence Sanchez put forth to support his duress defense

was his own testimony and statements he made to the border

officials at the time of his arrest. To contest this evidence, the

prosecutor argued that Sanchez had not mentioned to the border officials that he had agreed to transport drugs across the

border under duress. Sanchez countered that the American

authorities would not have been able to help him or his family

living in Mexico, so telling them he had been forced to transport the drugs would serve no purpose. In short, there was no

UNITED STATES v. SANCHEZ 19819
clear evidence either way. This case came down to a credibility determination—if the jury believed Sanchez, they would

acquit him. 

[10] 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. We cannot

comfortably 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, other than Sanchez’s testimony. 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. See Carter, 236 F.3d at 788. Under these circumstances, we hold that the prosecutor’s “send a memo” argument “ ‘affected the jury’s ability to consider the totality of

the evidence fairly.’ ” Weatherspoon, 410 F.3d at 1152 (quoting Smith, 962 F.2d at 935).2

CONCLUSION

[11] 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, we hold that the “send a memo” statement “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Bracy, 67 F.3d at 1432

(quoting Young, 470 U.S. at 15). We reverse Sanchez’s con2Our analysis is not affected by our recent decision in United States v.

Ibarra-Pino, ___ F.3d ___, 2001 WL 4359925 (9th Cir. Sept. 20, 2011).

The government has not argued that the district court erred by allowing

Sanchez to present a duress defense to the jury or by providing the jury

with a duress instruction. Ibarra is therefore inapplicable. 

19820 UNITED STATES v. SANCHEZ
victions for plain error and remand for a new trial.3

REVERSED AND REMANDED.

3Because we remand for a new trial, we do not reach Sanchez’s claim

that the district court improperly denied him surrebuttal. 

UNITED STATES v. SANCHEZ 19821