Prosecutor’s Remarks Tank Drug Conviction

(CN) - A prosecutor's mention of evidence not presented at trial tainted the conviction of a Las Vegas woman for conspiracy to distribute methamphetamine, the 9th Circuit ruled Monday.

The charges against Nancy Mageno stemmed from her role as translator for her godson, Jesus "Virrio" Guadalupe Felix Burgos, the leader of a methamphetamine conspiracy who did not speak English.

Though the 9th Circuit concluded that the evidence was sufficient to sustain the conviction, a divided three-judge panel reversed the conviction in a separate opinion Monday after finding that several misstatements of fact by the prosecutor during the closing argument encouraged "the jury to convict Mageno on the basis of evidence not presented at trial."

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

During her initial 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.

A transcript of the prosecutor's closing argument shows that he said: "She had a choice whether to let her godson who she already knew had been deported for distributing methamphetamine move in with her. She had that choice. She had a choice whether or not to get on the phone and begin translating phone calls that dealt with cut and shipments and coordinating these meetings.

"She had these choices and she's the one who made the choice to get on those phones. She is the one who made the choice to help her godson, Virrio, the one who had already been deported for distributing methamphetamine."

In finding the prosecution's misstatements material to the conviction, the federal appeals court in San Francisco noted that the lawyer "misstated important evidence and did so repeatedly."

"To buy Mageno's explanation, the jury had to believe that Mageno would not have known or suspected her godson's involvement in the drug trade," Berson wrote. "If she knew or suspected that involvement, her insistence that she believed the discussions were about day laborers and cooking cement would be decidedly less credible. And for Mageno, who testified in her own behalf, her credibility was critical. By misstating Burgos's testimony to include the assertion that Mageno knew of Burgos's prior drug trafficking - methamphetamine trafficking in particular - the prosecutors vastly decreased any likelihood that the jury would believe her."

Senior Judge A. Clifford Wallace wrote in dissent that Mageno waived her challenge of this issue by failing to "object to the alleged prosecutorial misstatements at trial," and failing to "argue that the statements prejudiced her in her appellate briefs."

It was indeed the government that raised the issue of the prosecutors' misstatements, but the majority felt that Mageno deserves an exception because a plain error occurred and "likely prejudiced the outcome of Mageno's trial."

Mace Yampolsky represented Mageno. Assistant U.S. Attorney Adam Flake represented the government. U.S. District Judge James Mahan presided over the trial in Las Vegas.

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