United States v. Mageno, 12–10474.
| Decision Date | 19 May 2015 |
| Docket Number | No. 12–10474.,12–10474. |
| Citation | 786 F.3d 768 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Nancy MAGENO, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mace J. Yampolsky (argued), Mace J. Yampolsky, Ltd., Las Vegas, NV, for Defendant–Appellant.
Adam M. Flake (argued), Assistant United States Attorney; Daniel G. Bogden, United States Attorney; Robert L. Ellman, Appellate Chief, Office of the United States Attorney, Las Vegas, NV, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 2:11–cr–00048–JCM–CWH–7.
Before: J. CLIFFORD WALLACE, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.
In our prior opinion in this case, we vacated Nancy Mageno's drug conspiracy conviction because of what appeared from the record to be the prosecution's misstatement of the evidence during closing arguments. See United States v. Mageno, 762 F.3d 933 (9th Cir.2014). The court reporter's official transcript has since been corrected, and we now know that no misstatements actually occurred. The government has brought these transcript corrections to our attention for the first time in a petition for rehearing, asking us to vacate our prior opinion and affirm Mageno's conviction. We hold, first, that we have authority under Federal Rule of Appellate Procedure 40 to grant a petition for rehearing for the purpose of recognizing corrections in the trial transcript raised at this stage of the proceedings and, second, that this case presents extraordinary circumstances that warrant doing so. Because Mageno was properly convicted following a fair trial, vacating her conviction would not serve the interests of justice. Accordingly, we grant the government's petition for rehearing, vacate our prior opinion and affirm Mageno's conviction.
In 2011, a federal grand jury indicted Nancy Mageno on one count of conspiracy to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 846 and one count of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2.
The charges against Mageno arose principally from her role in translating phone calls regarding methamphetamine transactions for her Spanish-speaking godson, Jesus Guadalupe (“Virrio”) Felix–Burgos, in 2010. At trial, Mageno denied knowingly conspiring to distribute methamphetamine, testifying she had been unaware that her godson was involved in illegal drugs or that the phone calls she was translating involved drug transactions.
To help prove Mageno's knowledge, the government elicited testimony from Burgos that he had been deported for drug trafficking three years before the phone calls in question and, significantly, that Mageno knew the reason for his deportation:
In closing arguments, the government relied in part on this testimony to establish Mageno's knowledge. It argued, for example, that the jury should infer Mageno knew the phone calls involved drug transactions because, In the government's view, Mageno had to know the phone calls involved illegal drugs because she “already in her head knew that Virrio, the person she was translating for, has a history of distributing methamphetamine. ” It argued to the jury that ”2
The jury convicted Mageno on the conspiracy charge and acquitted her of the distribution charge. The district court sentenced Mageno to 87 months in prison followed by five years of supervised release.
Mageno appealed, raising as her sole claim of error that the evidence against her was insufficient to sustain the conviction. Assistant United States Attorney Adam Flake, assigned to draft the government's answering brief, had not been present at trial and relied solely on the reporter's transcript of the proceedings. While reviewing the trial transcript, he discovered what appeared to be misstatements by the trial prosecutors. As noted, the government attorneys stated in their closing arguments that Burgos had testified that Mageno knew why he had been deported in 2007. The trial transcript, however, indicated (incorrectly, we now know) that, although Burgos had been asked whether Mageno knew why he had been deported, he had not answered that question.
In consultation with his supervisor, Flake concluded he should bring these apparent misstatements to the court's attention even though Mageno had not raised the issue in her opening brief. Accordingly, the government argued in its answering brief:
Although not raised by Mageno, the Government has discovered that during closing argument, the prosecutors incorrectly claimed that Felix–Burgos had testified that Mageno knew that he had been previously deported for dealing methamphetamine. The Government believes its duty of candor requires it to bring this fact to the Court's attention. This mistake does not warrant reversal, however[,] because the prosecutors' misstatements were apparently inadvertent, because Mageno did not object and has not attempted to show prejudice, because the district court instructed the jury that the attorneys' arguments were not evidence, and because regardless whether the jury believed that Mageno knew why Felix–Burgos had been deported, the other evidence against her amply demonstrated her guilt.
Mageno did not file an optional reply brief, and so did not address the misstatement-of-the-evidence issue raised by the government in any of her briefing. We inquired about the issue at oral argument, however, and at that time Mageno's counsel adopted the issue and argued briefly that it warranted vacating her conviction.3
In August 2014, this panel issued lengthy published opinions, including a dissent, vacating Mageno's conviction based on the (apparent) prosecutorial misstatements that the government had brought to the court's attention. See Mageno, 762 F.3d 933. Although Mageno had not raised the issue in her opening brief, the court held in the majority opinion that it had discretion to reach the issue because the government had sufficiently addressed it in its answering brief and would not be prejudiced by our doing so. See id. at 939–43 (citing United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) ). The court then concluded that the standard for plain error was satisfied, holding that the “comments at closing clearly misstated evidence, by explicitly and implicitly stating, five times in all, that Burgos testified that Mageno knew he was previously deported for drug trafficking.”Id. at 945. It further held that “the government's misstatements likely prejudiced the outcome of Mageno's trial,” and that the “error seriously impeded the jury's ability to function as an impartial fact-finder, thereby affecting the fairness and integrity of judicial proceedings.” Id. at 947. Accordingly, the court vacated Mageno's conviction “so that she may have an untainted shot at maintaining her innocence without the prosecution's damaging misstatements.” Id. at 949. The dissenting member of the panel would not have reached the prosecutorial misstatements issue. Because “Mageno did not object to the alleged prosecutorial misstatements at trial, and did not argue that the statements prejudiced her in her appellate brief,” he would have deemed the argument waived. Id. at 949 (Wallace, J., dissenting). He also disagreed with the majority's conclusion that the plain error standard was satisfied. He would have upheld the conviction because, in his view, “[o]nly one of the statements was improper,” “[t]here was so much evidence submitted by the government at trial that Mageno would have been convicted regardless of the statements,” “[s]ome of the prejudice Mageno may have suffered was mitigated by the district court's curative instructions, and any misstatements were unintentional.” Id. In an accompanying unpublished memorandum disposition, we rejected Mageno's challenge to the sufficiency of the evidence. See United States v. Mageno, 584 Fed.Appx. 487 (9th Cir.2014).
Shortly after we issued those decisions, one of the government prosecutors who had handled the trial contacted Elizabeth O. White, Appellate Chief and Assistant United States Attorney for the District of Nevada, to say that he distinctly recalled Burgos testifying that Mageno knew why he had been deported.4 He advised White he was certain that neither he nor the other prosecutor had misstated Burgos' testimony. In light of the prosecutor's recollection, the government sought and obtained an order from the district court to review the audio recording of Burgos' testimony. Mageno did not oppose the motion.
White compared the audio recording to the official transcript and discovered several material omissions in the transcript. Most significantly, the audio recording revealed that Burgos not only had been asked whether Mageno knew why he was deported but had answered the question...
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