"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.