United States v. Nancy Mageno

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10474 Plaintiff-Appellee, D.C. No. v. 2:11-cr-00048-

JCM-CWH-

NANCY MAGENO,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted September 10, 2013—San Francisco, California

Filed August 11, 2014

Before: J. Clifford Wallace, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Wallace SUMMARY*

Criminal Law

Reversing a conviction for conspiracy to distribute methamphetamine, the panel held that the prosecutors’ several misstatements of fact during the closing argument encouraged the jury to convict the defendant on the basis of evidence not presented at trial, and there was a reasonable probability that the misstatements affected the outcome.

The panel considered the misstatement issue, even though the defendant did not raise it before the district court or in her opening brief, because the government raised the issue in its answering…

dissenting:

I respectfully dissent. Mageno did not object to the alleged prosecutorial misstatements at trial, and did not argue that the statements prejudiced her in her appellate briefs. Mageno’s appeal meets none of our exceptions for consideration of waived arguments. Instead of following our precedent and deeming the argument waived, the majority creates a new exception, considering an argument raised for the first time not by the appellant at trial, nor in appellate briefs, but by a member of our panel hearing argument. Consideration of the issue in these circumstances is inconsistent with our case law and the purposes behind our rules about preserving issues for appeal.

Not only does the majority improperly reach the prosecutorial statements despite Mageno’s waiver, the majority also incorrectly concludes that the prosecutors’ statements constituted plain error. Only one of the statements was improper. There was so much evidence submitted by the government at trial that Mageno would have been convicted regardless of the statements. Some of the prejudice Mage-no may have suffered was mitigated by the district court’s curative instructions, and any misstatements were…

Opinion by Judge BERZON; Dissent by Judge WALLACE.

OPINION

Nancy Mageno’s godson, a leader of a methamphetamine conspiracy, did not speak English fluently, so Mageno translated telephone calls for him. As a result, Mageno was prosecuted for knowingly joining and participating in the drug conspiracy by fostering communication between its participants and her godson. In a separate disposition, we reject Mageno’s argument that the evidence against her was insufficient to sustain the conviction. Here, we consider related issues commendably raised by the government itself on appeal: Did the prosecutors’ several misstatements of fact during the closing argument encourage the jury to convict Mageno on the basis of evidence not presented at trial? If so, is there a reasonable probability that the misstatements affected the outcome? After determining that we should reach these questions although Mageno did not raise them, we answer both questions “yes,” and reverse.

I

Mageno’s godson, Jesus Guadalupe Felix Burgos, his wife, and his young son, lived with Mageno in a two-bedroom apartment in Las Vegas, Nevada. While Burgos lived with her, Mageno served as his informal English-Spanish…