United States v. Mageno

A prosecution’s misstatement of fact in closing argument is a sufficient argument to consider a reversal, even though the defendant did not object to the misstatement at trial, did not raise this argument in their opening brief, and did not adopt it as a ground for reversal until oral argument, because it encouraged the jury to convict the defendant on evidence not presented at trial, and there was a reasonable probability that the misstatements affected the outcome.

Nancy Mageno, godmother of Jesus Guadalupe Felix Burgos, allowed Burgos, his wife, and child to live with her in Las Vegas, Nevada. While Burgos was living with Mageno he had her interpret several telephone calls for him. Burgos was subsequently indicted on methamphetamine distribution charges, while Mangeno was indicted on conspiracy to distribute, and distribution charges for distribution of methamphetamine. Mangeno testified at trial that she understood these calls to be in regards to Burgos’ labor business concerning cement and that she had no idea that the calls were concerning distribution of methamphetamine. The government had obtained a warrant to tap the phone of Burgos, intercepting several calls about methamphetamine distribution in which Mangeno was the translator, even one where she indicated that she couldn’t discuss over the phone because she suspected that the phone line could be tapped. On cross examination, Mangeno was questioned about her knowledge of Burgos’ prior deportation due to distribution of methamphetamine. Mangeno never testified that she understood the reason behind Bergos’ deportation. At closing argument, the government stated that Mangeno testified that she did know why Bergos was deported previously. The jury convicted Mangeo of the conspiracy charge. The Ninth Circuit noted that generally an issue not raised before the district court may not be considered for the first time on appeal. The panel indicated that due to certain exceptions, this argument could be considered on appeal. Plain error is a sufficient exception that occurred here. The panel noted that even if an issue is not adequately raised in the briefing, they “are not precluded from addressing it.” Since there was a plain error that seriously affected the fairness, integrity, and public reputation of judicial proceedings the panel considered the argument and held that it did in fact prejudice the defendant. REVERSED and REMANDED.