United States v. Nancy Mageno
2014 U.S. App. LEXIS 15389
| 9th Cir. | 2014Background
- Nancy Mageno translated Spanish-English telephone calls for her godson, Jesus Burgos, who was indicted in a multi-person methamphetamine distribution conspiracy; five intercepted calls involving Mageno were admitted at trial.
- Mageno was charged with conspiracy to distribute >50 grams of methamphetamine and one count of distribution; jury convicted on the conspiracy count and acquitted on the distribution count.
- At trial Burgos testified for the defense that Mageno was innocent; he testified he had been deported for trafficking, but did not state that Mageno knew the reason for his deportation.
- During closing argument prosecutors repeatedly stated (incorrectly) that Burgos had testified Mageno knew he was deported for meth trafficking; the government acknowledged some misstatements on appeal.
- Mageno did not object at trial to the misstatements and did not raise prosecutorial-misstatement error in her opening brief; the government raised the issue in its answering brief and urged the court not to reverse.
- The Ninth Circuit majority (Berzon, J.) found the misstatements were plain error that likely affected the verdict and reversed and remanded; Judge Wallace dissented, arguing waiver, harmlessness, and sufficient evidence to uphold the verdict.
Issues
| Issue | Plaintiff's Argument (Mageno) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy conviction | Evidence insufficient to prove Mageno knowingly joined conspiracy | Evidence (calls, translations, travel, conduct) sufficient; jury verdict should stand | Court: Evidence sufficient (affirmed in separate memorandum) |
| Prosecutors’ misstatements of fact in closing (stating Burgos testified Mageno knew his deportation reason) | Misstatements were false, prejudicial, and deprived Mageno of a fair trial | Government conceded some misstatements but argued no reversal needed (lack of bad faith, curative instructions, weight of evidence) | Court: Misstatements were plain error, likely affected outcome; reversal and remand ordered |
| Consideration of unraised error on appeal (waiver/plain-error review) | Mageno did not preserve issue at trial or in opening brief, but government raised it on appeal; plain-error review appropriate | Government argued forfeiture but nonetheless briefed the error; court may address plain error when appellee raises it and no prejudice to appellee | Court: Under Olano/Puckett plain-error framework, appellate court may review and did so because appellee briefed issue and no prejudice to government |
| Whether error was harmless or affected substantial rights | Misstatements were central, repeated, and tied to Mageno’s knowledge—the decisive issue—so not harmless | Any error was harmless: strong circumstantial evidence, jury instructions mitigated, misstatements inadvertent | Court: Error affected substantial rights and the fairness/integrity of proceedings; not harmless; fourth Olano prong met |
Key Cases Cited
- Olano v. United States, 507 U.S. 725 (Sup. Ct. 1993) (sets four-part plain-error test under Rule 52(b))
- Puckett v. United States, 556 U.S. 129 (Sup. Ct. 2009) (clarifies Olano framework and burden on plain-error review)
- Marcus v. United States, 560 U.S. 258 (Sup. Ct. 2010) (explains substantial-rights requirement for plain-error reversal)
- Darden v. Wainwright, 477 U.S. 168 (Sup. Ct. 1986) (prosecutorial misconduct analysis; fairness of trial is touchstone)
- Atkinson, In re, 297 U.S. 157 (Sup. Ct. 1936) (appellate courts may notice obvious errors in exceptional circumstances)
- Silber v. United States, 370 U.S. 717 (Sup. Ct. 1962) (Court may notice plain errors not raised by parties)
- Kojayan v. United States, 8 F.3d 1315 (9th Cir. 1993) (prosecutor must not make unsupported factual claims in argument)
- Gray v. United States, 876 F.2d 1411 (9th Cir. 1989) (distinguishes permissible inferences from improper affirmative misstatements by counsel)