Case o' The Week: Do The Right Thing - Mageno, Waiver, and Prosecutorial Misstatements During Closing Argument

 In Maloney, the government acknowledged error – but only during an en banc argument, and only when pinned down after a truly excruciating exchange with the Court.

   Far better, it appears, for the government to Do The Right Thing and flag error when it sees it. United States v. Mageno, 2014 WL 3893792 (9th Cir. Aug. 11, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Fisher. Dissent by Judge Wallace.

Hon. Marsha Berzon

Facts: Nancy Mageno’s godson dealt drugs, and Mageno translated for him. Id. at *1. A DEA agent heard her on a half-dozen calls, of suspicious nature – but not expressly mentioning meth. Id. at *1-*2. She testified at trial that she did not know her godson dealt drugs, and her godson testified on her behalf. Id. at *3. Over defense objection, the government was limited to one specific question of the godson regarding his prior deportation: he was asked if he was deported for trafficking meth. Id. at *4. From that sole question, the government argued (repeatedly) at closing that Nancy Mageno knew her godson had been previously deported for meth. Id. at *3-*4. No facts in evidence supported that argument. The defense did not object at trial or on appeal after Mageno was convicted. Id. at *4. The first flag was when the government raised this error in its appellate briefing. Id.

Issue(s): “[T]he government raises, as separate error, the prosecutors’ repeated misstatements during closing argument that [the godson] had testified to [the godson’s] deportation for dealing drugs. Mageno did not object to the government’s misstatement of [her godson’s] testimony at trial, did not raise this argument in her opening brief, and did not adopt it as a ground for reversal until oral argument. Should we consider the government’s error under these circumstances?” Id. at *4.

Held: “We conclude that we should.” Id.

Of Note: The ultimate holding – that the prosecutor’s arguments rose to plain error – is great. What is particularly interesting, however, is Judge Berzon’s thoughtful discussion of waiver. Over Judge Wallace’s dissent, Judge Berzon carefully works through the practical impact, and the historical background, of Rule 52. Id. at *5-*7. Waiver is an important appellate principle, and Mageno’s analysis is worth a careful defense read (particularly the Court’s emphasis on the nature of this criminal case, and the fact that a government representative erred). Id. at *7.

How to Use: To get to reversal, Judge Berzon must navigate the treacherous shoals of Olano plain error. She does so admirably, and the result is a very useful discussion regarding a prosecutor’s misstatements at closing argument. Id. at *7-*12. Of particular interest is the rejection of the general cautionary jury instructions as a “cure-all.” Id. at *9. Those instructions were never expressly tied to the misstatements, so did not vitiate the error. Id. Judge Berzon also rejects the government’s attempt to salvage the conviction by arguing the prosecutor did not intentionally misstate the evidence. Id. at *11. The prosecutor’s statements may not have been intentional misconduct, but they were “exceedingly reckless.” That, Judge Berzon explains, is enough. Id. at *12. Judge Berzon rightly ends the decision by commending the government for “bringing the missteps in this case to our attention,” but because “the government also created the problem” concludes the Court must “reverse Mageno’s conviction so that she may have an untainted shot at maintaining her innocence without the prosecution’s damaging misstatements.” Id. at *12.

                                               

For Further Reading: Seven years ago, the formidable Judge Betty Fletcher wrote a beautiful dissent attacking the use of acquitted conduct as relevant conduct at sentencing – using the Sixth Amendment as the foundation of her argument. See blog on Mercado here. 

  Is the Sentencing Commission finally coming around to Judge Fletcher’s view? In its official list of priorities, the Commission promises a multi-year effort to “simplify the operation of the guidelines,” including the examination of the “use of acquitted conduct in applying the guidelines.” See Notice here.  

   A spark of interest, worth fanning into a flame over the upcoming year. 

Image of "Do the Right Thing" from http://www.licknyc.com/wp-content/uploads/2014/07/licknyc_remebering-do-the-right-thing-25-years-later_01.jpg

Image of the Hon. Judge Marsha Berzon from http://www.brennancenter.org/sites/default/files/legacy/JordeSymposium65.jpg 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: The Grinch Who Stole Remand - Newhoff and Jury Readbacks

The Ninth is Santa, gifting a defendant with a finding of plain error on a transcript readback before a Montana jury. United States v. Newhoff, 2010 WL 5128262 (9th Cir. Dec. 16, 2010), decision available here.

The Ninth is The Grinch, taking back its holiday gift with a finding that the error didn't affect Newhoff's "substantial rights," and refusing to remand for retrial. Id.

Players: Decision by Judge Kleinfeld.

Facts: The Montana Office of Tourism will not be linking to Newhoff on its web page. Newhoff was arrested while driving. Id. at *1. The officer who stopped the car said Newhoff passed something to a woman in the back seat. Id. A search of her purse revealed a small pistol. Id. Newhoff was tried federally of being a felon in possession and of possession of a stolen gun. Id. In a separate state case, he was convicted of burglarizing a trailer from which the gun was stolen. Id.

There was a charming cast of characters who testified in the federal trial: Newhoff’s “friends” testified that he had been trying to sell the pistol at “Deano’s casino.” Id. The woman in the back seat, though, conceded that she was drunk when her fiancé and Newhoff had robbed the trailer. Id. at *2. Her fiancé, by contrast, denied robbing the trailer, though he conceded that he had been “tweaking” on meth. Id. None of this motley crew were prosecuted for their various and sundry crimes, which “could suggest an inference that they lied about Newhoff to benefit themselves.” Id.

During deliberations the jury asked for a transcript of all the testimony, and then narrowed their request to one witness: Officer Cochran. Id. With the consent of counsel, the judge agreed to the reading of that one’s witness’s testimony and explained he would give a limiting admonition. Id. The transcript was read, the admonition wasn’t, and no one objected to that omission. Id. at *3. Newhoff was convicted. Id.

Issue(s): “Newhoff argues for a new trial on the ground that by reading back Officer Cochran’s testimony without admonishing the jury not to give it undue emphasis, the district court caused undue emphasis to be given.” Id. at *3.

Held: “[P]lainly the general rule is that if the jury wants a readback, and the court exercises its discretion to allow it, the court should make the jury hear the entirety of the witness’s testimony in open court (except where excessive length makes that impractical and fairness can be assured by using an excerpt preferably agreed upon by counsel), with counsel for both sides and the defendant present, and with an adequate admonition. . . . As to whether the error of reading back Officer Cochran’s testimony without an admonition was plain, we conclude that it was.” Id. at *4.

Of Note: As is too often the case, Newhoff won the error battle and lost the Olano plain error war. Id. at *5. Judge Kleinfeld’s analysis of whether this affected the defendant’s “substantial rights” is not particularly satisfying. After all, “the jury returned a verdict immediately after the readback.” Id. (emphasis added). Judge Kleinfeld assures us that there was no structural error on the case because the witness whose testimony was read back “provided the jury with the strongest evidence for the defense.” Id. And although the government’s witnesses were drunkards and tweakers, “their testimony was plausible and coherent enough so that they might have be believed.” Id. Newhoff – and the insurmountable hurdle of Olano plain error – is another reminder for trial counsel to object, object, object.

How to Use: Newhoff is a good primer on the procedure to be used for jury readbacks. Judge Kleinfeld provides a clean, concise catalog of five points that a readback admonition must cover:

1. that readbacks risk distorting the trial because of overemphasis on one witnesses’ testimony; 2. that both direct and cross examination of the witness will be heard; 3. that the transcript is not evidence – a jury must rely on its recollection of the testimony is; 4. a transcript does not reflect demeanor, tone of voice, and other aspects of credibility only found in live testimony; and 5. the testimony read cannot be considered in isolation, but must be considered in the context of all other testimony and exhibits.

Id. at *4. Keep this Newhoff list handy in the trial binder and make sure readback admonitions hit all these points.

For Further Reading: Judge Kleinfeld explains that Newhoff’s counsel made an “Occam’s razor” defense in closing argument. Id. at *2. The Razor posits, “‘Pluralitas non est ponenda sine neccesitate’ or ‘plurality should not be posited without necessity.’” See explanation here.

Put differently, the theory argues that the simplest explanation is the best – in this case, that the little pistol really belonged to the female passenger because it was in her purse (the simplest explanation for the event). Sadly, that razor doesn’t cut it in Montana.


Image of the Grinch from http://www.laprensatoledo.com/Stories/2007/121207/Grinch.jpg Image of Occam's razor from http://static.neatoshop.com/images/product/68/468/Occams-Razor_1896-l.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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