Metropolitan News-Enterprise


Wednesday, May 20, 2015


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Ninth Circuit Panel Reverses Self, Citing Corrected Transcript

Extraordinary Circumstances Justify Reinstating Drug Conviction, Judges Say




A Ninth U.S. Circuit Court of Appeals panel reversed itself yesterday and affirmed a Las Vegas woman’s conviction and 87-month prison sentence for conspiracy to distribute methamphetamine.

In a published order explaining their unusual decision, the judges said they had originally thrown out Nancy Mageno’s conviction because they believed the prosecutor prejudicially misstated material facts in his closing argument. But the trial transcript has since been corrected, the judges said, and the corrected transcript makes it clear the facts were not misstated.

In its original opinion last August, the panel said the jury had been encouraged “to convict Mageno on the basis of evidence not presented at trial.”

The charges against Mageno stemmed from her role as translator for her godson, Jesus “Virrio” Guadalupe Felix Burgos, who does not speak English. Burgos was sentenced to a little more than 11 years in prison for his role in the conspiracy.

The U.S. Drug Enforcement Agency located Burgos after investigating methamphetamine sales in Montana, according to the trial evidence. An undercover agent bought high-quality methamphetamine from two brothers in Billings and they eventually led the agency to Burgos, who was selling methamphetamine out of Mageno’s two-bedroom apartment in Las Vegas.

Evidence Presented

During her trial, prosecutors presented as evidence several phone calls in which Mageno translated conversations regarding drug transactions made from her apartment. She said she thought the conversations were about Burgos’ work as a day laborer and not about drugs.

Prosecutors tried to counter this defense by telling the jury that Burgos was deported during 2007 for selling methamphetamine. They did not establish, however, that Mageno knew Burgos was deported for selling drugs.

Despite not establishing her knowledge of the deportation, the government “argued that Mageno knew that Burgos had been deported for drug trafficking and so must have known the calls she translated related to drug trafficking,” Judge Marsha Berzon wrote for the majority in the original opinion.

During closing argument, the assistant U.S. attorney pointed out that “Virrio”—who testified as a defense witness at Mageno’s trial—had been arrested for distributing methamphetamine in 2007, when he was living with Mageno, and been deported.

The prosecutor then went on to say:

“This is something Virrio explained to you she knew because he was living with her, then he comes back.”

Mageno, he said, had to know the phone calls involved illegal drugs because she “already in her head knew that Virrio, the person she was translating for, has a history of distributing Methamphetamine” and that “in 2007, she already knows. Is it past is prologue? He’s been deported because he was trafficking methamphetamine while he was living with her. He testified she knew why he was deported.”

Original Reversal

The U.S. Attorney’s office, however, subsequently informed the Ninth Circuit that it had been incorrect in arguing that Burgos testified that Mageno knew why he was deported. The prosecution argued that the error did not compel reversal, but Berzon and Senior Judge Raymond Fisher disagreed, while Senior Judge J. Clifford Wallace said Mageno’s counsel had never argued that the evidence was misstated and that there was no “coherent argument” for reversal.

The court said in a footnote yesterday that Wallace remains of the view that there was no basis for reversal on the original record.

After the original ruling, one of the prosecutors who handled the trial said he was certain that Burgos had testified that Mageno knew why he was deported. A comparison of the transcript with the audio recording of the trial showed a number of discrepancies, including that—whereas the transcript showed that Burgos was asked whether Mageno knew why he was deported, but never answered the question—it was clear from the tape that he had answered the question in the affirmative.

Correction Order

After obtaining an order correcting the record—to which defense counsel did not object—the government petitioned the Ninth Circuit for rehearing.

In granting the petition and reinstating the conviction, the panel said it had authority to do so under Federal Rule of Appellate Procedure 40, which allows a court to grant rehearing when it has “overlooked or misapprehended” the applicable law or facts.

The judges acknowledged that the Ninth Circuit has previously applied Rule 40 only in cases where it overlooked or misapprehended something in the record or the briefs before it, not where the record itself was incorrect. But application in the latter context, the judges said, is consistent with the plain language of the rule and with its purpose.

In this particular case, the judges said, applying Rule 40 will serve the interests of justice, will not prejudice the defendant—since it was the prosecution, not the defense, that raised the issue—and recognizes the “extraordinary” nature of the case, in which the government’s “laudable integrity” in informing the court of the apparent misstatements “counterbalances [its] troubling lack of diligence in discovering the transcription error.”

The case is United States v. Mageno, 12-10474.


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