*4 Mageno was charged counts; two with one Before: J. WALLACE, CLIFFORD alleging she, Burgos, and others con- RAYMOND FISHER, C. and MARSHA spired to distribute more than 50 grams of S. BERZON, Circuit Judges.
methamphetamine, in violation of 21 Opinion by Judge BERZON; Dissent by §§ U.S.C. 841(a)(1), 841(b)(l)(A)(viii) and Judge WALLACE. 846, and the other accusing her of distrib- uting more 50 grams than of methamphet-
OPINION amine, violation of 21 U.S.C. 841(a)(1), §§ 841(b)(l)(A)(viii) and BERZON, Circuit Judge: 2,§ U.S.C. on or about October Nancy Mageno’s godson, a leader of a methamphetamine conspiracy, did not The Drug Agency Enforcement began speak English so fluently, Mageno trans- investigating methamphetamine distribu- telephone lated calls for him. result, As a tion in the Billings, Montana area with the Mageno prosecuted for knowingly aid of an officer, undercover Agent Joseph joining and participating in the drug con- Kirkland. After purchased Kirkland high- spiracy by fostering communication grade be- methamphetamine from two broth- tween its participants godson. and her In ers in the Billings area, he traced the a separate disposition, reject Mageno’s brothers’ supplier to Las Vegas. The sup- the evidence against plier, Paco Flores, Francisco eventually was insufficient to sustain the conviction. led Kirkland to Burgos, the individual the Here, we consider related issues com- government now maintains was at the cen- mendably raised government itself ter of the distribution operation. Burgos on appeal: Did the prosecutors’ several identified himself to Kirkland “Virrio,” as misstatements of fact during the closing invited Kirkland to travel to Vegas Las specified never though Kirkland Kirk- provided and methamphetamine, buy re- drugs. Burgos’s was for “price” him. to contact number phone with a land question, also “price” sponse against develop a case help To was, “This time by Mageno, translated ob- associates, his and can time he price. Next it’s the same Burgos’s phone. tap a warrant tained right now cheaper because you it to give intro- At a hard time.” having they’re in- calls intercepted of five a total duced (4) 4, 2010, call phone be- A November volving Mageno: Burgos, caller tween an unknown call phone (1) A September they ar- translating Mageno Burgos, man and an unknown between translated meeting. ranged a translator. acted as which description of his that, caller’s the unknown complained man unknown got garbage. car. just I stuff “[t]he like, like looks it’s full of cut.... It’s 17, 2010, (5) phone call A November stupid.” I look up I soap. [cook] “Paco”1 identified as a caller between this meant agent testified
An hints that Mageno, which could not poor quality drugs were phone might concerned she is he was said that The caller resold. be hap- what was asked tapped: be When *5 it” out of the rock to “take going “can’t responds that she Mageno pening, “other on” the a “return wanted and say phone.” over the stuff.” testi- also included at trial The evidence 1, 2010, call be- (2) phone An October 2010, just November mony that on Asher, Burgos, John co-defendant tween call, Mageno intercepted the last before for Mageno translated Mageno. and family Burgos and his driving with was says right saying to Asher: “He Burgos, fol- they being were they realized when What he anything. he doesn’t now mon- agent confronted the Mageno lowed. They’re any good.... have is not does you “Why are demanding, Burgos, itoring come to shipment new waiting for—the encounter, Ma- After following me?” in.” family leave her his Burgos and made geno (3) phone call be- An October the end that was not apartment. But in which Burgos, Kirkland and tween long Burgos. Not relationship with her a they arranged Mageno translated out, traveled Mageno Burgos moved after on Burgos Kirkland called meeting. others, including her and two him with Las planned day, the date Yakima, Washington, which son-in-law, to call, During Vegas transaction. to be by the asserted was communicating with Burgos had trouble She, Burgos, and drug hub.” “known translat- Mageno so English Kirkland drug enforcement were detained others ques- the conversation. part of ed found drugs no were but authorities translated Mageno responses tions car. their providing the transaction facilitated defense, Mageno ex- her Testifying in car, location about Kirkland’s details conver- did not know that: she plained a ques- conveyed also clothing. Mageno references contained she translated al~ “price,” sations as to Kirkland from tion conspiracy. drug distribution volved with the whether “Paco” It is not clear in- Paco was the same who call was phone impression being deported, under the in 2007 before drugs govern- and “was to work”; [Burgos’s] to do with that it had ment asked whether knew he calls, Burgos phone about the she asked deported. Mageno’s attorney object- was the calls always and he said had do with ed on the ground the answer called laborer; day Burgos told her his work as a speculation. After a sidebar discus- complaint shoddy call first was sion,2 “[j]ust agreed to ask cement; workmanship laying in the question” Burgos concerning one his that when the caller com- understood deportation, so, prosecutor and the prod- couldn’t “cook” the plained that he asking, Burgos, going “Mr. back to ... uct, referring mixing cement in a he was why you the reason deported were mixer; Burgos ship- told her the concrete you was because trafficking were meth- into the October 1 call was ment referred amphetamine, right?” Burgos isn’t that purchase; translating a cement affirmative, answered in the gov- and the call, Mageno thought October 7 Kirkland ernment Burgos moved on. But never connecting Burgos’s one of she was work- said that he was de- employer, ers so that the worker ported why, Mageno— and neither did employer could to his for a follow home she was never asked. job. This questioning truncated line of was Also, according Mageno: she did not centerpiece transformed into a of the clos- dealing drugs Burgos know until the ing arguments. prosecution argued Burgos events of November when ad- knew that had been they mitted his involvement realized deported for drug trafficking, and so must followed; they being were reason she have known the calls she translated relat- speak to Paco was hesitant later that drug ed to trafficking: day because she did not know Paco rival, well and he was son’s romantic There’s one [version events] *6 phone big, because she feared the was government bad has looped and, tapped; Yakima, to trip to she Nancy Mageno unfairly into this large, relative, purpose was told its was to visit a multi-state drug conspiracy all because drugs. not to deal accidentally she got phone on a couple calls where she thought she was assist- Testifying Mageno’s trial her de- ing cement sales pool and cleaners fense, Burgos said was “an inno- and coordinating day laborers who were person,” cent and “it wouldn’t be fair for having meetings clandestine in parking judged by her to be crimes another lots of Burgers. In-and-Out That’s one person has done.” He confirmed that he story. Mageno they going told were to Yakima to relative,
visit an ill but that Mageno denied And there’s another one. There’s him questions asked the phone about calls story that, second and that’s like every she interpreted. streets, individual walking the she had a examination, On cross choice. She had a choice whether to let questioned Burgos a prior, drug- godson about her already who she knew had deportation. related After he deported testified been distributing metham- for that he lived with Mageno year for phetamine about move with her. She had sidebar, 2. At incorrectly the district court she knew.” asserted, Burgos’s testimony, "He said stand, Now, and [Burgos] said on a choice whether had choice. She sure, it’s percent I’m a hundred begin and phone get to He either things. or two that dealt either one calls translating phone coordinating said, and she knew about deported I was shipments cut and deported, I but it, knew was or she meetings. these he know she is how would question and she’s choices had these She say, up Did he come why? knew on those get choice to made the who one dealing way, I’ve been by the hey, one who made is the She phones. know, I’m Virrio, you gone? drugs, one help godson, to choice dis- deported been already who had for fact, neither that had testified In That methamphetamine. tributing nor that deported knew he was That this case. story line of second why. she knew (Emphasis case is about. is what conspir- jury Mageno on A convicted added.) one, acquitted her of charge, count but acy specifically went on prosecutor The her, the October against count the other knowledge Mageno’s jury to infer ask The methamphetamine distribution. sup- translating from her was what she Mageno to 87 sentenced district court drug- prior Burgos’s knowledge of posed years five followed prison, months first prosecutor The deportation. related supervised release. that, explained you “Virrio told the her, living with he was knew because II back[,]” and later described comes he then us is central before Mageno’s as the voice phone voice on not introduce suf- that the “already in her head who person aof jury’s ver- support ficient evidence translating Virrio, she was person gov- charge. conspiracy dict on the distributing metham- for, history of has a evidence was ernment maintains his concluded The prosecutor phetamine.” But, sufficient, commend- agree.3 and we this same note: closing argument on raises, separate as a ably, the government be- guilty find jury should error, repeated misstate- the prosecutors’ translating Mageno “knew she cause that Bur- closing argument during ments methamphetamine dealer.” a known for knowledge had gos testified rebuttal, picked up prosecutor a second On drugs. dealing deportation Burgos’s *7 2007, already knows. “[I]n theme: deported He’s been past prologue? it Is gov not Mageno did methamphet- trafficking he was Burgos’s testi of misstatement ernment’s He living with her. he was while amine trial, argument not raise this mony at did deported.” why he was she knew testified brief, it adopt not and did opening in her argu oral reversal until ground Bur- as also misstated attorney govern consider we of ment. Should as a result testimony perhaps gos’s — these circumstances? under ment’s error hearing —but that we should.4 We conclude assuredly: not error, but, acknowledged unlike ward and in mem- sufficiency is addressed issue 3. stage here, concurrently with en banc disposition do so until the filed it orandum opinion. United questioning. See repeated and after prose- presenting a similar case In a recent error, for- government also came cutorial 940
Generally, an
final
in original) (citing
issue
raised be
alteration
United
Olano,
may
725, 732-36,
court
not be consid
fore the district
States v.
507 U.S.
113
appeal.
1770,
(1993)).
time on
See
ered for
first
S.Ct.
pute”;
error must
“the
have affected
(4)
the appellant’s
rights”;
substantial
As to the
justification,
second
satisfied,
“if
prongs
the above three
are
arguments
consider
open
raised
the court
appeals
has the
ing
discretion to
brief when addressed in the appellee’s
remedy
if
seriously
the error
the error
response; an appellee’s brief that merely
fairness,
integrity
affect[s] the
or public observes that
appellant
failed to raise
reputation
judicial proceedings.”
Puck
an issue is insufficient.
City
See Eberle v.
States,
129, 135,
Anaheim,
ett v.
Cir.
(2009)
(inter
1990).
S.Ct.
plain
having
error
to be
by
raised
relied in part on the principle that “the
52(b)
parties.
applies
And Rule
on appeal,
court,
option,
at its
may notice a plain
plain only
errors
became
appeal.
on
error
presented”7
principle stated
—a
—
States,
Henderson v. United
U.S.
in language markedly similar to the lan-
-,
1121, 1127,
133 S.Ct.
Furthermore, Rule
meant
as a Kennedy has likewise noted that while
“restatement
existing
of
law.”
Fed.
“[i]n most cases ...
party
will have
52(b) advisory
R.Crim.P.
committee’s note
raised the alleged error on appeal,” some-
(1944 adoption).
Supreme
Court has
times “a court notices an error on its own
long
52(b)
recognized
Rule
came
—before
initiative under Federal Rule of Criminal
into
exceptional
existence—that “[i]n
cir-
52(b).” Olano,
Procedure
507
U.S.
741-
cumstances, especially in
cases,
criminal
42, 113
J.,
S.Ct. 1770 (Kennedy,
concur-
appellate courts,
in the public interest,
ring)
Silber,
(citing
718,
943 representatives as and stature their status exercising that favor of Counseling in have an prosecutors government, primary two are in this authority instance making to avoid “obligation affirmative was first, the issue considerations: jury sup- not of fact to the briefed, and appellee; raised, and dur- evidence introduced by proper ported a only criminal second, this is not Gaither, 1079. 413 F.2d at ing trial.” 160, Atkinson, at 56 case, 297 U.S. see a 391, in which one but S.Ct. in argument are free Prosecutors con- at issue. We is error representative’s jury make “reasonable suggest that the to to raise failure despite clude presented at from the inferences” evidence in her misstatements Sayetsitty, v. 107 States trial. United reversal, is this case ground a for briefs Cir.1997). (9th But 1405, even 1409 F.3d plain for may reverse in we one which where it would be reason in circumstances are met.9 standards if the Olano error argue and for the prosecutor a able for from the a certain inference jury to make III prosecutors must presented, evidence flatly misstate during closing factors, we con- Addressing the Olano testimony appear to make it so as met. factors are that all the clude affirmatively inference permissible First, to reverse for us v. See United States by witness. stated case, error there must be in verdict this Cir.1989); 1411, (9th 1417 Gray, 876 F.2d 732-34, Olano, plain. is Small, 74 F.3d v. States United 1770. (D.C.Cir.1996). thus We 1280-82 prosecutor plain made have a defendants Criminal claims.... unsupported factual “ma[kes] “not to be convicted right constitutional States definitely improper.” United is [it] evidence adduced the basis of except on (9th Cir. F.3d 1321 Kojayan, v. 8 Schuler, F.2d v. 813 United States trial.” 1993). Cir.1987). it (9th Accordingly, at the close in this circuit the rule long been has important evi- trial misstated introduc from “must refrain prosecutors clearest repeatedly. did so dence and the record.” ing evidence came error Artus, instance v. rebuttal, prosecutor when the second curiam). Indeed, on Cir.1979) light (per 28 U.S.C. Cir.1985) (re- corpus proceedings under (1st habeas phy, 762 F.2d whether be- now decide § not raised We need not versing conviction where appeal until ripe from a direct and not raised punting trial court otherwise issue fore McKinney, argument); justi- United States oral ever corpus appeal to habeas review Cir.1983) (holding case, government has where the fied. In this rights under the Confrontation briefed, defendant’s error, the issue is conceded its reversing judg- were violated Clause injustice complete, greater the record though amendment sixth "[t]he ment even one, prison wait require a defendant in the district court was not raised issue two, get years longer to three or more argued nor neither briefed method such a circuitous Nor is same result. court”). necessarily from the desirable retrial is inevitable perspective, as the if dissenting colleague insists that even 9. Our further, difficulty of find- and the pushed back now, we should may review com- ing with fresh recollections witnesses to, Mage- exercise our discretion pounded. actually, an ineffec- raise the no could issue— variant of it—in of counsel tive assistance *11 jury: “[Burgos] [Mageno] told testified amine. This is something [Burgos] ex- why knew was deported.” he Burgos plained had you she knew he was testified this fact. Although her”; living and, with “That’s the voice on prosecutor asked if he the phone already in her head knew deported, was he never answered that person she translating for, was question, nor testify did he that Mageno has history a of distributing methamphet- knew that he was deported. amine.” list, To this add one more: The government’s statement that Mageno prosecutor,
The first
in several other
she
“knew
translating
for a known
statements, referred to Mageno’s knowl-
methamphetamine dealer.”11
edge
Burgos’s
of
past.
criminal
He did
not ask
jury
infer.
so
He did not
prosecutors’
That the
during
statements
use an
phrase,”
“introductory
such as “I
closing argument
improper
were
is there-
submit,” to
jurors
“alert[ ] the
that defense
fore plain.
counsel
fact,
stating
but asking
them to
their
use
common sense in draw-
Second, as we are conducting
ing an inference.” Id. at
Instead,
1321.
plain
review,
we must ask if the
prosecutor’s
second
later direct mis-
errors
affected
“substantial
statement of Burgos’s testimony would rights,” i.e., whether they were sufficiently
have confirmed to
jury,
the earlier
prejudicial that there exists a “a reason
like,
references sounded
and were likely to
able probability that the error[s] affected
as,
be taken
assertions
fact based on the outcome
Marcus,
of the trial.”
direct testimony.10
U.S. at
Up to point, government agrees. reverse on “only review if the government recognizes that prosecutor[s’] fol- improper conduct ... taint lowing statements made in the initial clos- ed the verdict deprived and [Mageno] of a ing argument, as well as the already iden- fair trial.” United Sanchez, States v. tified rebuttal, statement made amount Cir.2011) (citation and to error: “[Mageno] ... let godson internal quotation omitted). marks We who already knew had been deported consider the statements the context of for distributing methamphetamine move in the entire including curative instruc her”; “[Burgos] was arrested and given tions jury weight deported for distributing methamphet- the evidence against defendant, to as- Any 10. inference would have fairly been weak 958. The did not in its own evidence, from the actual which did not even review of the record see the statements that directly establish knew of way. recognized It in its brief that there were ” deportation. Mageno's knowledge of Bur- several "incorrect (emphasis gos’s deportation could have been added) inferred and cited to three of the statements from her Burgos, closeness to but establishing dissenting our colleague insists were knowledge of the deportation reason for the Moreover, proper. the dissent’s view is be- require would then an inference from an in- lied themselves, the statements which do ference. request jury that the infer the stated facts but recite them as having been affirmatively dissenting Our colleague accepts, as established. he While the could must, prosecution that the "invite[d],” made one misstate- Kojayan, 8 F.3d at ment, protests but first four times the to infer knew about Bur- prosecution made point the same explicit- gos’s less deportation provided argument con- ly, the just requests were cerning infer- favoring inference, facts such an ences from id., other facts record. Dissent at it did not do so. Id.; attorney did not catch the likely effect.12 the statements’ certain error, jury likely accepted govern- Weatherspoon, 410 F.3d United States Cir.2005). characterization of the evidence as ment’s given. jury’s And if the own recollection closing clearly misstat comments at Burgos’s testimony differed from the evidence, implicitly by explicitly ed recitation, jury likely all, times in testi stating, five *12 speculated prosecu- would have that the previously he was Mageno fied that knew at tors’ misstatements had least some fac- Misstating drug trafficking. for deported is, tual that prosecutors basis—that the particularly a from trial is the evidence so, if knew the statement was even there misconduct, because it form of prejudicial testimony.13 was no such rely jury information the is to distorts the Darden v. reaching on in a verdict. Moreover, the erroneous comments fea- Cf. 181-82, 168, 106 Wainwright, 477 U.S. in both prominently tured (1986). 2464, By L.Ed.2d 144 S.Ct. 91 closing arguments, including plea the last so, jury’s usurps preroga it also the doing jury the members of the heard drawing, otherwise drawing, tive An primary closing argument. error that permissible inferences. “emphasized during trial” is [a] likely jury. Roger more to influence a See addition, judge the trial did not ad-
In
Traynor, The
Harmless Error
J.
Biddle
jury
disregard
these mis-
monish the
(1970). Here,
very
in his
last
75
state-
gave the
Although
judge
statements.
jury,
prosecutor
first
tied
ment to the
that statements from
standard instructions
directly to the
that erroneous fact
central
evidence,
jury
are not
and that the
lawyers
case,
telling
jury
issue in the
of the
rely
is to
on its own recollection
guilty
because she “knew she
trial, these instructions were
evidence at
translating
methamphet-
for a known
expressly tied to the misstatements.
never
added.)
(Emphasis
amine dealer.”
Combs,
564,
v.
379 F.3d
See United States
reiterated the errone-
prosecutor
second
(9th
Kerr,
Cir.2004);
States v.
575
by Burgos,
explic-
this time
(9th Cir.1992).
ous statement
1050,
“[T]he
981 F.2d
1054
itly, during
prominence
rebuttal. The
judicial
jury’s
standard
caution
description of the
“cure-all,” government afforded its
recollection controls” is not
Gaither,
1079,
testimony
closing argu-
nonexistent
in its
especially
413 F.2d
where,
here,
point
the critical role the
repeated misstatements of ments reflects
play
convincing
jury
uncorrected. Because
was meant to
fact went
response
dissenting colleague
prosecutor’s
would have on
distorts
this
Our
12.
judge
fairly.”
Virginia
jury’s ability to
the evidence
analysis by applying
v.
the Jackson
1, 12,
Young,
105
reviewing
sufficiency
United States
of the
standard
(1985).
doing
Second, geno’s trial.15 while the misstatements here do not rise to the level of intentional miscon- sum, In
duct,
based on our
reckless,
review of
they
exceedingly
were
and
the
against Mageno,
case
it
paid too
we find
rea
short shrift
the prosecutors’
sonably probable
“obligation”
that
to seek
she was convicted
a conviction
on
Gaither,
based on
the basis of facts in
the
false account
the
of
record.
Burgos’s testimony.
Benitez, U.S. S.Ct. (2004). L.Ed.2d 157 majority may The asserts that we con appellant an Separately, when fails to sider statements because distinctly, an argue, specifically and issue government addressed the statements appeal, usually in opening his brief we brief, in appellate preju thus not appellant has waived hold his diced, so both the “second and third cir issue, right appellate review of that even justify cumstances Ullah exist [from ] [to] in criminal cases. United States v. Rodri- our reaching Majority Op. the issue.” at guez-Preciado, 399 F.3d government notify 940. While the us Cir.2005). possibly misleading of its in closing argument, government did not object any Mageno did not to opportunity fully have the two of brief trial, government’s statements at and did the issues by majority, reached that the argue statements merited re- prejudiced thus is majority’s rever her in opening versal of conviction her or sal on that basis. reply appeal. government briefs on repeatedly argued that “Mageno government op- has never had the argued has not state- portunity to legal rebut sources the reversal,” ments warrant she “has there- majority now offers to reverse Mageno’s Thus, fore a claim.” forfeited such under Majority conviction. Op. at 943M:9. Had practice, our normal we would not consider Mageno adopted op- her appeal. in this brief, reply tional government likely as the
assumed, would have then B. opportunity had the supplemental to file a respond brief or analysis to her in oral recognize I that our court sometimes argument. But did not file arguments open- considers raised in an reply failure, brief. Because of that ing precedent brief. Our makes clear that government never had the opportunity to the circumstances are limited to three (as later) explain I do the incorrect reason- “First, exceptions. well-established we ing used to reverse conviction. will present review issue not in an shown, opening good brief for Second, cause or if a has never had failure to do so would result in opportunity manifest to rebut majority’s injustice. Second, we have discretion nearly unprecedented relief of reversing a review an issue not appellant raised conviction based on an these fac- when it appellee’s is raised circumstances, brief. tual objected when not Third, may review an issue if the fail- trial or raised either an opening reply ure properly to raise the issue did not brief. The cites to no binding prejudice the defense of opposing par- authority past from the thirty years where Ullah, ty.” United States v. this court or the Supreme Court has re- (9th Cir.1992) (citations and internal versed a conviction defendant did omitted). quotation marks Contrary to an alleged government conclusion, the majority’s none of the ex- did not alleged raise the error in ceptions Further, apply here. brief, consider- opening and did not raise or ation of an thoroughly issue so waived is even refer to the alleged error in her purposes inconsistent with the optional of our rules reply brief. Even in United about preserving appeal. Atkinson, issues for States v.
953
so would
to do
or “failure
shown”
cause
(1936),
Su-
where the
391,
L.Ed. 555
80
Ullah, 976
injustice.”
“[i]n
recognized
in manifest
first
result
preme Court
in
circumstances, especially
good
not shown
Mageno has
exceptional
F.2d at 514.
may,
cases,
courts
appellate
prosecu-
criminal
raise
failure to
the
for her
cause
to which
motion,
errors
notice
own
of their
opening
in her
brief.
misstatements
torial
taken,” the Court
been
has
exception
no
absolutely nothing
fact,
has shown
In
she
here,”
is presented
case
“no such
held that
brief,
any reply
file
failed
she
to
because
“the
because
conviction
and affirmed
to show
nothing in the record
there
subject
not made
assigned was
issue, at the
to raise
was unable
charge
to
request
or
exception
appropriate
See, e.g., Rosen
latest,
reply brief.
in a
160,
S.Ct. 391.
at
56
Id.
trial.”
upon
Francisco,
Cnty.
San
City &
v.
baum
in
argument
raised the
Mageno had
If
Cir.2007)
(9th
1142,
n. 3
1150
F.3d
484
brief,
could
reply
in
not raised
an
argument
an
(considering
specifically
argue
to
prepared
explained
appellants
brief because
opening
But
argument.
at oral
not done
they had
why
brief
reply
their
in
has
thus
The
so.
never did
so).
explain
the opportunity
not had
the drastic
implicate
does
this case
a manifest
suffer
would
Nor
in
Court
Supreme
remedy offered
prose-
consider
if we did not
injustice
717,
States,
82
370 U.S.
United
Silber v.
did suffer
If
statements.
cutorial
(1962)
cu-
(per
798
L.Ed.2d
8
S.Ct.
from
any prejudice
this
riam).2
reversal
majority’s
The
her convic-
statements,
still have
she could
government.
prejudices
thus
posture
before
vacated,
her waiver
despite
tion
sec-
majority, neither
Contrary to
on
based
petition
court,
filing a habeas
apply
Ullah
exceptions from
third
ond nor
She
of counsel.
assistance
ineffective
here.
judicial re-
raise for
properly
then
could
and her
view
brief,
to,
failure
attorney’s
not raised
an
consider
alsoWe
approach
This is the
those statements.
“good
there is
brief
opening
an
majority
ours
only
decision
and im
engages
a serious
majority
2. The
cites,
McKinney,
F.2d 381
707
v.
power to
analysis
our theoretical
pressive
1983),
Ma
to us.
with Kama
presented
(9th
at
plain errors not
odds
Cir.
correct
itself,
dis-
power is
52(b)
But
there
jority Op. at 941-43.
Rule
but also with
Jeffery, 473 F.2d
v.
cretionaiy. United States
the Confron
incorrectly reviewed whether
1973). Using that
(9th
Cir.
270 n.
at
objected to
trial
violation
Clause
tation
authority
discretion,
our
cabined
we have
doubt,”
beyond a reasonable
was “harmless
under Silber
errors
unraised
review
384-85,
correct
than under
at
rather
id.
de
52(b)
circumstances
to the three
Rule
alleged error was
of whether
standard
Kama,
v.
United States
See
in Ullah.
scribed
Silber,
“plain.” See
Cir.2005) (holding
Gomez,
1287;
725 F.3d
United States
exception
apply
[besides
"we will not
Cir.2013)
alleged viola
(subjecting
accord”).
own
]
our
from Ullah
the three
objected
Clause not
Confrontation
tions of the
recognizes
"circum-
majority
review); McKinney,
plain at trial to
present them-
these do not
such
stances
J., dissenting)
(Belloni,
at 385
n.
Op. at 942-43
Majority
very often.”
selves
applied the in
(recognizing that
cir-
suggests that such
majority then
8. The
Thus,
applica
standard).
our
legal
correct
with
circuits
arise in other
do
cumstances
McKinney was
rules
waiver
tion of the
far-flung results
But those
frequency.
some
incon
is also
time and
wrongly
decided
in Kama
trump
decisions
do not
our
precedent.
our later
sistent
Ullah.
*20
by
of our sister circuits.
9. But that argument
point.
taken
some
Unit
misses the
As
Evans,
1192,
above,
ed States v.
131 F.3d
1193 I explain
the ineffective-assistance
(7th Cir.1997) (refusing to
an
address
issue
ripe,
issue is not
has not
issue,
raised
defendant for the first time in a
attorney
fired her
or raised the
and
brief,
reply
“may
because the defendant
the record
Mageno’s attorney’s
about
stra
present
(or
thereof)
this contention under 28 U.S.C.
tegic decisionmaking
lack
is
2255”);
§
see also United States v. Jerni
complete.
majority sug
While the
(11th
1273,
gan, 341 F.3d
1290-92
Cir. gests
injustice
it would be an
require
to
2003) (Fullam, J., concurring) (appellants Mageno
one, two,
in prison
“to wait
three
appeal
cannot be afforded relief on direct
years
or
longer
get
more
to the same
“but must await collateral attack via a
result” of
prison,
release from
pre
is
§
they
2255 motion” because
did not
cisely what the Supreme
requires:
Court
to the error at trial or raise the issue on even when a defendant has a meritorious
appeal
though
even
“neither
re
appellant
assistance,
claim for ineffective
the defen
trial”).
fundamentally
a
ceived
fair
wait,
prison,
dant often must
to file a
collateral
having
attack instead of
a court
Requiring Mageno to raise the ineffec-
decide the issue on
appeal.
direct
Massa
tiveness of her counsel in a
pro-
collateral
States,
500, 504,
ro v. United
123
particularly
here,
ceeding
necessary
is
be-
1690,
(2003) (“in
S.Ct.
155
714
L.Ed.2d
employs
cause
still
the same
most
a
brought
§
cases motion
under
2255
deficiently
counsel who acted
at trial and
preferable
appeal
deciding
direct
for
appeal.
I have found no case where a
assistance”).
claims of ineffective
court has
counsel
held
to be ineffective
lawyer
represents
still
the defen-
3.
Mageno’s attorney
dant.
acting
is still
agent,
I
responsible
so she is
understand that our rules
pre-
negligent
may
serving
acts he
have committed.
issues can sometimes seem aca-
722,
Coleman Thompson,
formalistic,
v.
501
demic and
U.S.
753-
rather
prac-
than
54,
(1991);
result,
pus justified.” Cir.1994), review is ever Dunkel, Id. at 943 n. citing United States v. prosecutorial not consider Cir.1991). should a we As. at all. an adversarial matter, general do courts “appellate where system, court in legal boards as self-directed not sit C. as arbi essentially research, but quiry to consider majority’s decision ar presented questions legal ters of only incon- is not Nat’l them.” before parties gued pur the formal case law and sistent Nelson, Admin. Space &
Aeronautics
*21
are also
rules. There
our waiver
bases for
746,
n.
134, 131 S.Ct.
rules,
our
for
reasons
practical
important
(2011);
v. Serv. Em
Knox
L.Ed.2d
by
appeal.
this
—
are well-illustrated
which
Union,
U.S.
Local
Int’l
ployees
2298,
surely believed,” have been id. at 947. These are generalizations, speculations, E. and assumptions jury’s about the response, intent, government’s Mageno’s at- Under our usual rules requiring ap- torney’s They grounded actions. are not pellant briefs, to raise an issue in Mage- its record, in the and are necessarily true no has waived review of the of the actual trial we are reviewing. allegedly improper statements. This ap- If we statements, refused to review the peal does not meet of the exceptions Mageno a petition could file habeas based we recognized to overcome a such on ineffective assistance of counsel. That Instead, waiver. majority up makes a would provide allow her to specific record exception cloth, new out of whole at odds evidence about the actual trial we are re- with the nature of the American adversari- viewing. But the majority’s premature system al and inappropriate in pos- consideration fails review the comments ture. There is no basis for the majority’s in the context of the entire trial. misguided govern- consideration of the ment’s alleged misstatements in
D. trial. When a judge question asks a or Finally, that, majority makes statement suggests that as the record here, review proves honors the principle Mageno was not adopted by defense appeal,” counsel, “master of her and that it only question the statement or is not reviews the comments appellant’s appeal. issue on of whether question flat
III.
deported.
was
why Burgos
knew
Mageno
govern-
to consider
if we were
Even
prosecutor
stat-
statements,
argument,
errs
In rebuttal
ment’s
why
she knew
he
Mageno
Burgos
“testified
conviction.
ed
reversing Mageno’s
statements,
was incor-
so we
This statement
deported.”
made
should
But the other statements
error. We
rect.
plain
for
review
(2)
“(1)
error;
closing argument
are
is an
if
there
reverse
obvious,
Burgos
sub-
testified that he
clearly
rather than
false.
clear or
error is
(3)
(his godmoth-
living
Mageno
the error
had
dispute;
been
ject to reasonable
er),
trafficking, and
rights,
deported
drug
appellant’s substantial
affected the
jury
it af-
in with her. The
ordinary case means
then moved back
in the
which
Burgos
court
knew
the district
could infer both
the outcome of
fected
(4)
seriously
why he had been
deported
the error
had been
proceedings;
fairness,
argue
are
integrity
public
Prosecutors
free
deported.
affects the
record.
Mar-
from the
judicial proceedings.”
reasonable inferences
reputation of
(cita-
cus,
Gray,
A.
1411;
see also
Gray, 876 F.2d
able.”
Small,
1276, 1281,
States v.
Burgos stated that he United
testimony,
In his
(in
(D.C.Cir.1996)
an out-of-circuit
and 1284
living
Mageno
with
had been
majority, the court held
by the
was traf-
case cited
deported because he
that he was
in
unreasonable
was an
that a statement
After he re-
ficking methamphetamine.
there
because
from the evidence
ference
States March
turned to the United
the state
support
was “no evidence”
Because
Mageno.
in with
he moved back
ment,
the convic-
nonetheless affirmed
but
Burgos never answered
objection,
tion). Here,
justified
the inference was reasonable
when “it is
probable
more
than
there was indeed some evidence to not that
materially
the misconduct
affected
verdict”).
Mageno
the inference that
knew the
support
deported.
why Burgos had been
Addition-
telephone
Jurors heard four
calls from
ally,
ap-
review a conviction on
lawfully
wiretaps
obtained
Mage-
between
peal
presume
we “must
if it does
—even
drug
no and
agents
customers or federal
affirmatively appear
in the record—
calls,
posing
drug
customers.
In those
the trier of fact resolved
such Mageno translated conversations for Bur-
conflicting
pros-
in favor of the
inferences]
gos. A law enforcement agent
testified
ecution.”
v. Virginia,
Jackson
that the conversations included code words
307, 326,
instructions C. mitigated statements judge’s curative Mageno may have suffered from prejudice statements if Even See States v. United misstatements. error, Mage- prejudice of the most were Cir.1995) 1421, 1431 Bracy, 67 F.3d by the mitigated may have suffered no (even if the statement First, jury instructions. court’s district caution to the the district court’s improper, statements, judge stat- opening before “ objections, ‘[questions, state- jury lawyers and of the questions that “the ed ments, are arguments and counsel not evidence. What arguments are their ... neutralized evidence in the case.’ it’s say evidence so witnesses state- prosecutor’s effect the prejudicial witnesses, the testi- had”). may have ment witnesses, important.” that’s mony of instructions, closing ar- jury before During distinguish this majority tries to The court instructed district guments, rather than by arguing “general” rule that: mitigate do not “specific” instructions by prosecutorial mis verdict, prejudice caused you may con- reaching your In Majority Op. at 944- of fact. testimony and exhibits only the sider can do so 45. But following in evidence. received Though we our decisions. overreading you may things are not evidence general jury instruc suggested facts deciding them what the consider fully always do “neutralize” one, state- tions questions, are: Number prosecutorial com improper ments, by harm objections, arguments Kerr, ment, F.2d v. States again. Number United me start the —let (9th Cir.1992), statements, one, objections, questions, Cir.2004), Combs, lawyers are not by the arguments instruc general held that we have never lawyers are not wit- evidence. our determi wholly irrelevant to tions are you may consider Although nesses. *25 in have held fact prejudice, an- understand the nation lawyer’s questions to Sullivan, v. opposite. Hein witness, precisely the lawyer’s ques- of a swers (“much Cir.2010) (9th 897, 914-16 Similarly, 601 F.3d what tions are not evidence. prosecu prejudice of opening potential of the said in their lawyers have The trial mitigated. say at their tion’s comments statements, they will what objections times, a number court sustained at other arguments, closing to the cautionary instructions timely gave evi- you interpret help intended to general instructions jury, including dence, not evidence. If but it is summation”); Bra nature of the hortative them differ from you remember facts as here, Where, as them, cy, at 1431-32. your 67 F.3d lawyers state way jury reminded the judge thrice the district memory of them controls. only the evidence could be prosecutorial considered this case verdict, reaching recog- its our case law affected his rights.” substantial As I have of the mitigation prejudice Mageno nizes stated, there is no reason to believe the may improper have suffered from the jury accepted Mageno’s would have story statements. that she did not know of the conspiracy given her close relationship Burgos,
D.
and her continued association with him
indisputably
even after she
knew he was
Lastly, there is no
evidence
the rec-
dealing
majority
narcotics. The
also cites
ord that the
misstatements
a law review article that
Though
were intentional.
observes
the “touchstone
analysis
“generally”
courts
process
apply
objective,
of due
cases
rath-
alleged
prosecutorial
intent-based,
misconduct is the
er than
approach
prosecu-
fairness of
culpability
prosecu-
torial
Gershman,
misconduct. Bennett L.
tor,”
Phillips,
209, 219,
Smith v.
Culpability
Mental
and Prosecutorial
(1982),
no’s
complete
implies
prosecutorial
failure to
trial or
raise the
in her
intent
appellate
only
issue
matters
briefs.
when the
willingness,
This
part
on the
of the govern- qualifies the
Majority
misstatements.
Op.
ment,
up
possible
to own
to its
948-49,
errors
citing
Carrillo,
United
v.
provides yet another reason that the state-
(9th Cir.1994).
16 F.3d
But ments
not affect Mageno’s
substantial
recognized
have not
such a distinction.
rights, meriting reversal of conviction.
See, e.g.,
v. Blodgett, 5 F.3d
Jeffries
(9th Cir.1993) (“[w]e
do not believe
more,
Once
the majority offers little in
the [error] rendered Jeffries’ trial
the face of our cases recognizing the im
fundamentally
First,
unfair.
the state-
portance
Majority
intent.
ment was inadvertent and not a prosecuto-
Op. at
law,
947-48. From our
majori
rial attempt to elicit otherwise
ty
inadmissible
cites
our decision in United States
evidence”);
States,
Gage v.
Rangel-Guzman,
Cir.1948) (“[i]nsofar
Cir.2014),
125-26
where we
the ap
affirmed
pellant’s
inaccuracy existed in
prosecu-
conviction because
“there’s no
reason to
tor’s statement
jury,
believe the
it appears
would have ac
*26
cepted
unintentional,”
the version of
have been
posited
events
by
supported
which
appellant]
[the
... at
our
trial —even
conclusion that
“alleged
absent
the
error is
prosecutor’s
the
erroneous
not such as could have
seriously preju-
[statement]—
so
appellant]
[the
has failed to demonstrate
rights
diced the
of appellant as to require
the district
implicitly
also
condemns
jority
absence
it in the
notice of
to take
us
in-
t[ying]” the
error”).
“expressly
for not
court
assignment of
objection
misstate-
the
structions
statements
government’s
of the
most
As
truly negli-
But the
at 944-45.
ments.
Id.
from
inferences
reasonable
based on
were
attorney,
her
Mageno’s
gent actor
record, they
the
testimony and
Burgos’s
only in passing.
mentioned
at
Gray, 876 F.2d
not erroneous.
were
majority
explicitly
does not
Although the
much evidence
so
Mageno faced
1417.
attorney’s deficient
Mageno’s
point out
is no “reasonable
that
there
trial
her
even
his errors are obvious
performance,
any government
that absent
probability”
the rec-
majority’s description of
from the
ac-
have been
she would
misstatements
“put[
eggs
its]
defense
Mageno’s
ord.
Hein,
dis-
F.3d at 914. The
quitted.
Id. at 946.
‘knowledge’ basket.”
in the
the
admonished
repeatedly
court
trict
case, her attor-
theory of the
Despite this
lawyers were
the statements
that
government
ney failed to
evidence,
mitigated
further
which
stated
unambiguously
suggested and then
may have suffered.
prejudice
had been
why Burgos
Mageno knew
that
The record
1431.
Bracy, 67
at
supposed
deported, which eviscerated
any mis-
made
that
shows
After he
strategy.
Id.
939.
defense
re-
inadvertently, and when it
statements
focus
object, he still maintained
failed to
errors,
our
brought
them to
alized
closing argu-
knowledge in
F.3d at 1318.
Kojayan, 8
attention.
he then
Shockingly,
at 946.
ment.
Id.
re-
had not waived
Thus,
if
even
and,
testimony
Burgos’s
himself misstated
statements,
prosecutorial
of the
view
dramatically un-
majority,
according
outcome of
affect the
did not
statements
Id.
theory
the case.
his own
dermined
seriously
affect
trial and did not
assumes, without
The
at 946.
so there
judicial proceedings,
fairness
citation,
any record
and we should
no
a weak
“launch[ ]
made him
reverse her conviction.
counterattack,”
the defense
and “damaged
object when
Id. Then he failed
IV.
overall.”
the evi-
clearly misstated
implications
disagree with the
Finally, I
Burgos testified
arguing that
by
dence
The
majority uses.
language
of the
been de-
why he had
Mageno knew
“prosecutors’
majority states
(which
is accurate
at 947
ported.
Id.
were
closing argument
during
statements).
the five
only one of
944, implies
Op. at
Majority
improper,”
de-
majority overlooks
truth What the
failed to “serve
prosecutors
at-
trial is
scription
first,”
and
states
justice
id.
objected to the
torney never
who “created
prosecutors
it was
statements, and he did
harmful
allegedly
ma-
Id. at 949.5 The
here.
problem”
2014) (en banc).
comparison is irrele-
appeal to our
majority compares this
misleading:
case in-
highly
vant and
prosecutori-
presenting a similar
case
"recent
troubling
more
and far
came
volved intentional
government also
[where]
al
government,
error, but,
by
misconduct
un-
acknowledged its
forward
Office,
Attorneys’
States
United
here,
banc
different
so until the en
it did not do
like
Attorneys in
United
the Assistant
States
repeated questioning.” Ma-
stage and after
potentially erroneous
brought
discussing
this case
jority Op. at
n.
939-40
answering
their
11-50311,
attention in
to our
statements
brief,
Maloney,
No.
panel.
questioning
after
Cir. Feb.
The
reminds us that “[p]rose-
special
cutors have a
responsibility to pro
On the
actual basis of
appeal,
”
‘those
vide
accused of crime a fair trial.’
her argument
that there was insufficient
Majority Op.
quoting
Kojayan, 8 evidence of her involvement in
conspir-
F.3d at
1323. But “[t]he
acy,
affirm,
we should
because a reason-
for,
not responsible
and hence not able to
able
could conclude that Mageno
prevent, attorney
errors
will result in knew that
was
Burgos
dealing drugs and
reversal of a conviction or sentence.”
that her
facilitated
conspira-
conduct
Strickland v. Washington, 466 U.S.
cy.
Nevils,
(1984).6
S.Ct.
V. majority simply wrong. We
should not review the state- closing
ments from the arguments. Even did,
if we should review one state-
ment: testified that Mageno
knew he
deported
because of his in-
majority
disagree-
and I
Regardless Mageno's
factual
perform-
counsel’s
ance,
over
attorney
ment
whether
"intro-
I
Mageno's
would not reverse
convic-
error,
tion,
duced” the
disagreement
based on our
because "the
proceeding
result of the
government's
about whether the
first three
would [not] have been different” in the ab-
improper.
statements were
Majority Op.
Strickland,
sence of his errors.
466 U.S. at
not,
majority
946-47 n. 14. But the
does