Tuesday, May 19, 2015

U.S. v. Mageno (9th Cir. - May 19, 2015)

"In August 2014, this panel issued lengthy published opinions, including a dissent [here], 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 likelyprejudiced 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.” . . .

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 affirmatively. The audio recording showed, therefore, that the prosecution had not misstated the evidence during closing arguments, and that our opinion vacating Mageno’s conviction was based on an erroneous factual premise. . . .

The government then filed a petition for panel rehearing, asking us to vacate our published opinion and affirm Mageno’s conviction. See Fed. R. App. P. 40. It argued rehearing was appropriate because “material errors in the reporter’s transcript led the government – and, in turn, the Court – to misapprehend what actually occurred at trial.” It acknowledged that “these unfortunate consequences for the Court and the trial attorneys could have been avoided if the appellate division had consulted with the trial attorneys before inserting this issue into the appeal,” but it assured us that “the U.S. Attorney’s Office has instituted new procedures for reviewing appellate briefs to ensure this type of error will not happen again.”


The Ninth Circuit ultimately agrees with the government, and vacates the prior opinion and affirms the defendant's conviction.

A clusterfart to be sure.  But one that worked out in the end.