Sunday, August 17, 2014

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

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


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