United States v. Linda Mai

MEMORANDUM *

Linda Chen Mai' (“Mai”) appeals her convictions under 21 U.S.C. §§ 610 (d), 611(b)(6) for mislabeling pork products. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Mai contends that statements made by the government during closing argument constitute reversible prosecutorial misconduct. Because Mai did not object to any of the statements, we review for plain error. United States v. Tirouda, 394 F.3d 683, 688 (9th Cir.2005).

1. Mai first contends that the government committed misconduct by asserting during closing arguments that, after the United States Department of Agriculture (“USDA”) had suspended inspection services at Mai’s meat processing plant, “you cannot sell any product, regardless of when it was processed.” The statutes under which Mai was charged, however, criminalize the improper placement of a USDA-approved label on meat products. 21 U.S.C. §§ 610 (d), 611(b)(6). Under these statutes, it would not have been a violation for Mai to have sold pork products that had been processed before the USDA suspended inspections at the plant.

The prosecution has an obligation to avoid misstating the law during closing arguments, United States v.…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 31 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 14-10323

Plaintiff - Appellee, D.C. No. 5:11 cr-0589-RMW

v.

MEMORANDUM*

LINDA CHEN MAI,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted August 13, 2015 San Francisco, California

Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

Linda Chen Mai (“Mai”) appeals her convictions under 21 U.S.C. §§ 610(d),

611(b)(6) for mislabeling pork products. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Mai contends that statements made by the government during closing

argument constitute reversible prosecutorial misconduct. Because Mai did not

object to any of the statements, we review for plain error. United States v.

Tirouda, 394 F.3d 683, 688 (9th Cir. 2005).

1. Mai first contends that the government…

I would hold that the prosecutor’s, blatant misstatement of the law during his closing argument was not cured and that it prejudiced Mai’s substantial rights. In concluding otherwise, the majority significantly understates the prosecutor’s errors.

Mai conténded in her closing argument that after suspension she had only (1) sold pork processed before suspension and (2) acted as a middleman, buying and selling raw pork without processing it. Both activities were legal even after suspension. The prosecutor told the jury that they were not: “Even if what [Mai’s counsel] argued to you is true, that does not equal a not guilty story.” The prosecutor ex-, plained that regardless of when the meat was processed, “if it was sold after suspension, that’s a violation. You’re not allowed to do anything once you’re suspended.” Likewise the prosecutor told the jury that purchasing meat after a suspension was in' all events illegal. After pulling up an invoice showing Mai bought raw pork after suspension, the prosecutor stated “you have Linda Mai’s delivery from Jim’s Wholesale Meats on July 12th, 2010. That is a violation right there.”

Both statements were “erroneous” or “false” and both were…