United States v. Nancy Mageno

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10474
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00048-
JCM-CWH-7
NANCY MAGENO,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted
September 10, 2013—San Francisco, California

Filed August 11, 2014

Before: J. Clifford Wallace, Raymond C. Fisher,
and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;
Dissent by Judge Wallace
2 UNITED STATES V. MAGENO

SUMMARY*

Criminal Law

Reversing a conviction for conspiracy to distribute
methamphetamine, the panel held that the prosecutors’
several misstatements of fact during the closing argument
encouraged the jury to convict the defendant on the basis of
evidence not presented at trial, and there was a reasonable
probability that the misstatements affected the outcome.

The panel considered the misstatement issue, even though
the defendant did not raise it before the district court or in her
opening brief, because the government raised the issue in its
answering brief, and the government was not prejudiced.

The panel concluded that there was plain error; the error
affected the defendant’s substantial rights; and the error
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings. The panel reversed the
conviction and remanded the case to the district court.

Dissenting, Judge Wallace wrote that the prosecutorial
misstatement argument was waived and that there was no
plain error.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. MAGENO 3

COUNSEL

Mace J. Yampolsky (argued), Mace J. Yampolsky, Ltd., Las
Vegas, Nevada, for Defendant-Appellant.

Adam M. Flake (argued), Assistant United States Attorney;
Daniel G. Bogden, United States Attorney; Robert L. Ellman,
Appellate Chief, Office of the United States Attorney, Las
Vegas, Nevada, for Appellees.

OPINION

BERZON, Circuit Judge:

Nancy Mageno’s godson, a leader of a methamphetamine
conspiracy, did not speak English fluently, so Mageno
translated telephone calls for him. As a result, Mageno was
prosecuted for knowingly joining and participating in the
drug conspiracy by fostering communication between its
participants and her godson. In a separate disposition, we
reject Mageno’s argument that the evidence against her was
insufficient to sustain the conviction. Here, we consider
related issues commendably raised by the government itself
on appeal: Did the prosecutors’ several misstatements of fact
during the closing argument encourage the jury to convict
Mageno on the basis of evidence not presented at trial? If so,
is there a reasonable probability that the misstatements
affected the outcome? After determining that we should
reach these questions although Mageno did not raise them, we
answer both questions “yes,” and reverse.
4 UNITED STATES V. MAGENO

I

Mageno’s godson, Jesus Guadalupe Felix Burgos, his
wife, and his young son, lived with Mageno in a two-
bedroom apartment in Las Vegas, Nevada. While Burgos
lived with her, Mageno served as his informal English-
Spanish translator. Drug deals were often the topic of the
conversations Mageno translated. When the government
indicted Burgos and eight others for conspiring to distribute
a controlled substance, it indicted Mageno as well. Mageno
was charged with two counts; one alleging that she, Burgos,
and others conspired to distribute more than 50 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii) and 846, and the other accusing her of
distributing more than 50 grams of methamphetamine, in
violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(A)(viii) and
18 U.S.C. § 2, on or about October 7, 2010.

The Drug Enforcement Agency began investigating
methamphetamine distribution in the Billings, Montana area
with the aid of an undercover officer, Agent Joseph Kirkland.
After Kirkland purchased high-grade methamphetamine from
two brothers in the Billings area, he traced the brothers’
supplier to Las Vegas. The supplier, Paco Francisco Flores,
eventually led Kirkland to Burgos, the individual the
government now maintains was at the center of the
distribution operation. Burgos identified himself to Kirkland
as “Virrio,” invited Kirkland to travel to Las Vegas to buy
methamphetamine, and provided Kirkland with a phone
number to contact him.
 UNITED STATES V. MAGENO 5

To help develop a case against Burgos and his associates,
the government obtained a warrant to tap Burgos’s phone. At
Mageno’s trial, the government introduced a total of five
intercepted calls involving Mageno:

(1) A September 22, 2010, phone call between
an unknown man and Burgos, in which
Mageno acted as a translator. The unknown
man complained that, “[t]he stuff that I just
got is garbage. It’s full of cut . . . . it’s like,
looks like soap. I [cook] this up I look
stupid.” An agent testified that this meant the
drugs were poor quality and could not be
resold. The caller said that he was going to
“take . . . the rock out of it” and wanted a
“return on” the “other stuff.”

(2) An October 1, 2010, phone call between
co-defendant John Asher, Burgos, and
Mageno. Mageno translated for Burgos,
saying to Asher: “He says right now he
doesn’t have anything. What he does have is
not any good . . . . They’re waiting for — the
new shipment to come in.”

(3) An October 7, 2010, phone call between
Kirkland and Burgos, in which Mageno
translated as they arranged a meeting.
Kirkland called Burgos on that day, the date
of the planned Las Vegas transaction. During
the call, Burgos had trouble communicating
with Kirkland in English so Mageno
translated part of the conversation. The
questions and responses Mageno translated
6 UNITED STATES V. MAGENO

facilitated the transaction by providing details
about Kirkland’s car, location and clothing.
Mageno also conveyed a question from
Kirkland as to “price,” although Kirkland
never specified the “price” was for drugs.
Burgos’s response to the “price” question,
also translated by Mageno, was, “This time
it’s the same price. Next time he can give it
to you cheaper because right now they’re
having a hard time.”

(4) A November 4, 2010, phone call between
an unknown caller and Burgos, with Mageno
translating as they arranged a meeting.
Mageno translated the unknown caller’s
description of his car.

(5) A November 17, 2010, phone call between
a caller identified as “Paco”1 and Mageno, in
which Mageno hints that she is concerned that
the phone might be tapped: When asked what
was happening, Mageno responds that she
“can’t say over the phone.”

The evidence at trial also included testimony that on
November 17, 2010, just before the last intercepted call,
Mageno was driving with Burgos and his family when they
realized they were being followed. Mageno confronted the
agent monitoring Burgos, demanding, “Why are you
following me?” After that encounter, Mageno made Burgos
and his family leave her apartment. But that was not the end

1
It is not clear whether the “Paco” on this phone call was the same Paco
who was involved with the drug distribution conspiracy.
 UNITED STATES V. MAGENO 7

of her relationship with Burgos. Not long after Burgos
moved out, Mageno traveled with him and two others,
including her son-in-law, to Yakima, Washington, which was
asserted by the government to be a “known drug hub.” She,
Burgos, and the others were detained by drug enforcement
authorities but no drugs were found in their car.

Testifying in her defense, Mageno explained that: she did
not know the conversations she translated contained
references to drugs and “was under the impression that it had
to do with [Burgos’s] work”; she asked Burgos about the
phone calls, and he always said the calls had to do with his
work as a day laborer; Burgos told her the first call was a
complaint about shoddy workmanship in the laying of
cement; she understood that when the caller complained that
he couldn’t “cook” the product, he was referring to mixing
cement in a concrete mixer; Burgos told her the shipment
referred to in the October 1 call was a cement purchase; and
in translating the October 7 Kirkland call, Mageno thought
she was connecting one of Burgos’s workers with an
employer, so that the worker could follow the employer to his
home for a job.

Also, according to Mageno: she did not know Burgos was
dealing drugs until the events of November 17, when Burgos
admitted his involvement when they realized they were being
followed; the reason she was hesitant to speak to Paco later
that day was because she did not know Paco well and he was
her son’s romantic rival, not because she feared the phone
was tapped; and, as to the trip to Yakima, she was told its
purpose was to visit a relative, not to deal drugs.
8 UNITED STATES V. MAGENO

Testifying at Mageno’s trial in her defense, Burgos said
Mageno was “an innocent person,” and “it wouldn’t be fair
for her to be judged by the crimes another person has done.”
He confirmed that he told Mageno they were going to
Yakima to visit an ill relative, but denied that Mageno asked
him questions about the phone calls she interpreted.

On cross examination, the government questioned Burgos
about a prior, drug-related deportation. After he testified that
he lived with Mageno for about a year in 2007 before being
deported, the government asked whether Mageno knew why
he was deported. Mageno’s attorney objected on the ground
that the answer called for speculation. After a sidebar
discussion,2 the government agreed to ask “[j]ust one
question” of Burgos concerning his deportation, and the
prosecutor did so, asking, “Mr. Burgos, going back to . . .
2007, the reason why you were deported was because you
were trafficking in methamphetamine, isn’t that right?”
Burgos answered in the affirmative, and the government
moved on. But Burgos never said that Mageno knew that he
was deported or why, and neither did Mageno — she was
never asked.

This truncated line of questioning was transformed into a
centerpiece of the closing arguments. The prosecution 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:

There’s one [version of events] that the
big, bad government has looped Nancy

2
At the sidebar, the district court incorrectly asserted, about Burgos’s
testimony, “He said she knew.”
 UNITED STATES V. MAGENO 9

Mageno unfairly into this large, multi-state
drug conspiracy all because she accidentally
got on a couple of phone calls where she
thought she was assisting in cement sales and
pool cleaners and coordinating day laborers
who were having clandestine meetings in
parking lots of In-and-Out Burgers. That’s
one story.

And there’s another one. There’s a second
story and that’s that, like every individual
walking the streets, she had a choice. 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. That is the second story
line of this case. That is what this case is
about. (Emphasis added.)

The prosecutor went on specifically to ask the jury to
infer Mageno’s knowledge of what she was translating from
her supposed knowledge of Burgos’s prior drug-related
deportation. The prosecutor first told the jury that, “Virrio
explained to you she knew because he was living with her,
10 UNITED STATES V. MAGENO

then he comes back[,]” and later described Mageno’s voice
on the phone as the voice of a person who “already in her
head knew that Virrio, the person she was translating for, has
a history of distributing methamphetamine.” The prosecutor
concluded his closing argument on this same note: The jury
should find Mageno was guilty because Mageno “knew she
was translating for a known methamphetamine dealer.” On
rebuttal, a second prosecutor picked up the theme: “[I]n 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.”

Mageno’s attorney also misstated Burgos’s testimony —
perhaps as a result of hearing the government’s argument —
but not as assuredly:

Now, [Burgos] said on the stand, and I’m not
a hundred percent sure, it’s either one or two
things. He either said, I was deported and she
knew about it, or she knew why I was
deported, but the question is how would he
know she knew why? Did he come up and
say, hey, by the way, I’ve been dealing drugs,
you know, and I’m gone?

In fact, Burgos had testified neither that Mageno knew he was
deported nor that she knew why.

A jury convicted Mageno on the conspiracy charge, count
one, but acquitted her of the other count against her, the
October 7, 2010 methamphetamine distribution. The district
court sentenced Mageno to 87 months in prison, followed by
five years of supervised release.
 UNITED STATES V. MAGENO 11

II

Mageno’s central argument before us is that the
government did not introduce sufficient evidence to support
the jury’s verdict on the conspiracy charge. The government
maintains that the evidence was sufficient, and we agree.3
But, commendably, the government raises, as a separate error,
the prosecutors’ repeated misstatements during closing
argument that Burgos had testified to Mageno’s knowledge
of Burgos’s deportation for dealing drugs.

Mageno did not object to the government’s misstatement
of Burgos’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? We conclude that we
should.4

Generally, an issue not raised before the district court may
not be considered for the first time on appeal. See United
States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994); see
also Manta v. Chertoff, 518 F.3d 1134, 1144 (9th Cir. 2008).
But there are exceptions, of which one is where “plain error

3
The sufficiency issue is addressed in a memorandum disposition filed
concurrently with this opinion.
4
In a recent case presenting a similar prosecutorial error, the
government also came forward and acknowledged its error, but, unlike
here, it did not do so until the en banc stage and after repeated
questioning. See United States v. Maloney, No. 11–50311, 2014 WL
801450 (9th Cir. Feb. 28, 2014). We reversed on the basis of the
government’s concession, even though the issue presented to us in the
opening brief was whether the appellant was denied surrebuttal argument
improperly. Id. at *1 n.1.
12 UNITED STATES V. MAGENO

has occurred and an injustice might otherwise result.” United
States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir.
2005) (per curiam) (quoting Robertson, 52 F.3d at 791); see
also Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir.
1969) (recognizing that courts “have noticed [prosecutorial]
errors where they were not objected to at trial, or even on
appeal”).

Federal Rule of Criminal Procedure 52(b) provides that
“[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.” As laid out in United States v. Olano, “Rule 52(b)
review — so-called ‘plain-error review’ — involves four
steps, or prongs”: (1) “there must be an error or defect . . .
that has not been . . . affirmatively waived[] by the appellant”;
(2) “the legal error must be clear or obvious, rather than
subject to reasonable dispute”; (3) “the error must have
affected the appellant’s substantial rights”; and (4) “if the
above three prongs are satisfied, the court of appeals has the
discretion to remedy the error . . . if the error seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135
(2009) (internal quotation marks and emphasis omitted; final
alteration in original) (citing Olano, 507 U.S. 725, 732–36
(1993)). As will appear, we conclude that all of these
requisites are met.

Mageno’s failure to raise the governments’ misstatements
in her opening brief on appeal does not, in this unusual
instance, affect our application of the plain error doctrine.
Generally, an issue not raised in an opening brief will not be
considered. See e.g., McKay v. Ingleson, 558 F.3d 888, 891
n.5 (9th Cir. 2009); Stivers v. Pierce, 71 F.3d 732, 740 n.5
(9th Cir. 1995); United States v. Martini, 31 F.3d 781, 782
 UNITED STATES V. MAGENO 13

n.2 (9th Cir. 1994) (per curiam). But that principle admits of
exceptions. We consider an argument not raised in an
opening brief if: (1) there is “good cause shown,” or “failure
to do so would result in manifest injustice”; (2) the issue is
raised in the appellee’s brief; or (3) failure to properly raise
the issue does not prejudice the defense of the opposing party.
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)
(citations and internal quotation marks omitted). Here, the
second and third circumstances exist and justify our reaching
the issue.5

As to the second justification, we consider arguments not
raised in the opening brief when addressed in the appellee’s
response; an appellee’s brief that merely observes that an
appellant failed to raise an issue is insufficient. See Eberle v.
City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). The key
inquiry is whether “the discussion of the issue in [the] briefs
is sufficient to permit an informed resolution of the dispute
and its application [to the appellant].” Ullah, 976 F.2d at
514.

The third consideration, lack of prejudice to the opposing
party, is closely related to the second. Where the party
opposing an appeal has “fully addressed the issue” in its
briefing, the appellant’s failure to raise the issue in an
opening brief generally will “not impair the government’s
position on appeal,” and the government will not, therefore,
be prejudiced by the court’s consideration of the issue. Id.

5
Because two of the justifications for addressing an issue not raised in
an opening brief apply, we do not consider whether this is a case involving
“manifest injustice.” Ullah, 976 F.2d at 514 (internal quotation marks
omitted).
14 UNITED STATES V. MAGENO

Here, the government raised the prosecutorial
misstatements issue in its answering brief. The government’s
brief cited Burgos’s testimony at length, and acknowledges
that four government statements made in closing misstated
that testimony. The government also argued that the court
should not reverse in spite of this error and cited: (1) the lack
of bad faith by the government; (2) the lack of a
contemporaneous objection; (3) the judge’s general
admonition that comments by lawyers in closing are not
evidence, and that the jury must decide the facts for itself;
and (4) the claim’s failings on plain error review. In all, the
discussion of the issue spans six pages.

Given the government’s ample discussion of its error, the
government sufficiently addressed the issue of the
prosecutors’ misstatements to allow for that issue’s full
exploration on appeal. For the same reason, the government
is not prejudiced by our consideration of the issue on appeal.6

In arguing to the contrary, our dissenting colleague faults
us for “creat[ing]” an alleged “new exception,” pursuant to
which we purportedly are “considering an argument raised for
the first time . . . by a member of our panel hearing
argument.” Dissent at 30. But the preceding analysis should
make clear that our conclusion that we may reach the

6
Our dissenting colleague maintains that the government was prejudiced
because it “did not have the opportunity to brief fully the precise issue
reached by the majority.” Dissent at 37. This is a curious statement,
because the government devotes six pages of its brief to the error and
makes several merits arguments against reversal.

In addition, both parties recited the trial evidence at length for other
purposes, rendering our assessment of the impact of the prosecutorial
misstatements well-informed.
 UNITED STATES V. MAGENO 15

prosecution’s misstatements despite Mageno’s failure to raise
the issue in her opening brief turns on the government’s
having canvassed the issue at length in its response, and the
lack of prejudice to the government from consideration of the
issue the government itself raised — not on the appellant’s
embrace of the error when questioned at argument.
Accordingly, have no need to create a new exception, as it is
already well-established that we may consider an issue raised
for the first time by an appellee. Affordable Hous. Dev. Corp.
v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir. 2006).

Considered in this light, the significance of Mageno’s
adoption of the issue at oral argument is that Mageno, not this
court or the government, is the master of her appeal. Mageno
could have purposely argued sufficiency of the evidence and
no other issue for strategic reasons, because she wanted a
reversal only if no retrial would occur. By checking to assure
that that was not the case, we did not circumvent the precept
that we usually consider only issues raised in the briefs.
Again, the prosecutorial misconduct issue was raised in the
briefing, albeit by the government.

Moreover, even if an issue is not adequately raised in the
briefing, we are not precluded from addressing it. Rule 52(b)
says nothing about issues reviewed for plain error having to
be raised by the parties. And Rule 52(b) applies on appeal, to
errors that became plain only on appeal. Henderson v. United
States, 133 S. Ct. 1121, 1127 (2013).

Furthermore, Rule 52(b) was meant as a “restatement of
existing law.” Fed. R. Crim. P. 52(b) advisory committee’s
note (1944 adoption). The Supreme Court has long
recognized — before Rule 52(b) came into existence — that
“[i]n exceptional circumstances, especially in criminal cases,
16 UNITED STATES V. MAGENO

appellate courts, in the public interest, may, of their own
motion, notice errors to which no exception has been taken,
if the errors are obvious, or if they otherwise seriously affect
the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Atkinson, 297 U.S. 157, 160
(1936) (emphasis added).

The Supreme Court has itself reversed for plain error
where an issue was “not presented to the Court of Appeals
and was not briefed or argued” to the Supreme Court. Silber
v. United States, 370 U.S. 717, 717 (1962) (per curiam). To
do so, the Court relied in part on the principle that “the court,
at its option, may notice a plain error not presented”7 — a
principle stated in language markedly similar to the language
of Rule 52(b), which the Court also cited. Id. at 718. Justice
Kennedy has likewise noted that while “[i]n most cases . . .
the party will have raised the alleged error on appeal,”
sometimes “a court notices an error on its own initiative
under Federal Rule of Criminal Procedure 52(b).” Olano,
507 U.S. at 741–42 (Kennedy, J., concurring) (citing Silber,
370 U.S. at 718).

In short, when a government representative concedes that
there was a substantial error in the trial court proceedings
involving prosecutorial conduct, and we conclude that the
plain error standards laid out in Olano are otherwise met —
including that “the error seriously affects the fairness,

7
Silber cites Revised Rules of the Supreme Court of the United States,
Rule 40(1)(d)(2), 28 U.S.C., which now appears with only slight
modification at Rule 24. 370 U.S. at 718. Noting that Rule 52(b) restates
the existing law, the Advisory Committee Notes from the 1944 Adoption
of Rule 52 in turn reference the same Revised Rule, as well as “[s]imilar
provisions . . . in the rules of several circuit courts of appeals.”
 UNITED STATES V. MAGENO 17

integrity or public reputation of judicial proceedings,”
507 U.S. at 736 (internal quotation marks and alteration
omitted), we may consider the error and, if otherwise
appropriate, reverse the conviction.8

Counseling in favor of exercising that authority in this
instance are two primary considerations: first, that the issue
was raised, and briefed, by the appellee; and second, that this
is not only a criminal case, see Atkinson, 297 U.S. at 160, but
one in which a government representative’s error is at issue.
We conclude that despite Mageno’s failure to raise the

8
Our dissenting colleague is of course correct that circumstances such
as these do not present themselves very often. But, they are not so rare as
the dissent insists. See, e.g., United States v. Sum of $185,336.07 U.S.
Currency, 731 F.3d 189, 195 (2d Cir. 2013) (vacating and remanding
forfeiture order even though appellant “did not raise this argument in the
District Court or on appeal”); United States v. Whitfield, 590 F.3d 325,
347 (5th Cir. 2009) (citing United States v. Musquiz, 445 F.2d 963, 966
(5th Cir. 1971) (reversing a conviction for insufficient evidence on a basis
not advanced in the district court or on appeal)); United States v.
Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001) (vacating sentence for plain
Apprendi error not raised by the defendant, but raised by the government
“in the interest of candor”); United States v. Granados, 168 F.3d 343, 346
(8th Cir. 1999) (reversing and remanding sentence although defendant
“failed to raise these arguments in the district court or before this court”);
United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir. 1992)
(vacating co-defendant’s sentence even though he did not “raise[ ] the
issue in the trial court or on appeal,” and holding that “[f]airness as well
as judicial economy dictate that we address now this issue that would
doubtless otherwise be raised in a subsequent habeas proceeding”); United
States v. Murphy, 762 F.2d 1151, 1155 (1st Cir. 1985) (reversing
conviction where error not raised before trial court and not raised on
appeal until oral argument); United States v. McKinney, 707 F.2d 381, 383
(9th Cir. 1983) (holding defendant’s rights under the Confrontation Clause
were violated and reversing the judgment even though “[t]he sixth
amendment issue was not raised in the district court and was neither
briefed nor argued in this court”).
18 UNITED STATES V. MAGENO

prosecutorial misstatements in her briefs as a ground for
reversal, this case is one in which we may reverse for plain
error if the Olano standards are met.9

III

Addressing the Olano factors, we conclude that all the
factors are met.

First, for us to reverse the jury verdict in this case, there
must be error that is plain. Olano, 507 U.S. at 732–34.

Criminal defendants have a constitutional right “not to be
convicted except on the basis of evidence adduced at trial.”
United States v. Schuler, 813 F.2d 978, 980 (9th Cir. 1987).
Accordingly, it has long been the rule in this circuit that
prosecutors “must refrain from introducing evidence not in
the record.” United States v. Artus, 591 F.2d 526, 528 (9th
Cir. 1979) (per curiam). Indeed, in light of their status and
stature as representatives of the government, prosecutors have
an affirmative “obligation . . . to avoid making statements of

9
Our dissenting colleague insists that even if we may review for plain
error now, we should exercise our discretion not to, because Mageno
could raise the issue — actually, an ineffective assistance of counsel
variant of it — in habeas corpus proceedings under 28 U.S.C. § 2255. We
need not now decide whether punting an otherwise ripe issue from a direct
appeal to habeas corpus review is ever justified. In this case, where the
government has conceded its error, the issue is briefed, and the record
complete, the greater injustice is to require a defendant to wait in prison
one, two, three or more years longer to get to the same result. Nor is such
a circuitous method necessarily desirable from the government’s
perspective, as the inevitable retrial is only pushed back further, and the
difficulty of finding witnesses with fresh recollections compounded.
 UNITED STATES V. MAGENO 19

fact to the jury not supported by proper evidence introduced
during trial.” Gaither, 413 F.2d at 1079.

Prosecutors are free in argument to suggest that the jury
make “reasonable inferences” from the evidence presented at
trial. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th
Cir. 1997). But even in circumstances where it would be
reasonable for a prosecutor to argue and for the jury to make
a certain inference from the evidence presented, prosecutors
must not during closing argument flatly misstate testimony so
as to make it appear that the permissible inference was
affirmatively stated by a witness. See United States v. Gray,
876 F.2d 1411, 1417 (9th Cir. 1989); United States v. Small,
74 F.3d 1276, 1280–82 (D.C. Cir. 1996). We have thus made
plain that when a prosecutor “ma[kes] unsupported factual
claims . . . . [it] is definitely improper.” United States v.
Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993).

The prosecutors’ statements at the close of Mageno’s trial
misstated important evidence and did so repeatedly. The
clearest instance of the government’s error came on rebuttal,
when the second prosecutor told the jury: “[Burgos] testified
[Mageno] knew why he was deported.” Burgos had not
testified to this fact. Although the prosecutor asked if
Mageno knew why he was deported, he never answered that
question, nor did he testify that Mageno knew that he was
deported.

The first prosecutor, in several other statements, referred
to Mageno’s knowledge of Burgos’s criminal past. He did
not ask the jury to so infer. He did not use an “introductory
phrase,” such as “I submit,” to “alert[] the jurors that defense
20 UNITED STATES V. MAGENO

counsel was not stating a fact, but asking them to use their
common sense in drawing an inference.” Id. at 1321.
Instead, as the second prosecutor’s later direct misstatement
of Burgos’s testimony would have confirmed to the jury, the
earlier references sounded like, and were likely to be taken as,
assertions of fact based on direct testimony.10

Up to this point, the government agrees. The government
recognizes that the following statements made in the initial
closing argument, as well as the already identified statement
made in rebuttal, amount to error: “[Mageno] . . . let her
godson who she already knew had been deported for
distributing methamphetamine move in with her”; “[Burgos]
was arrested and deported for distributing methamphetamine.
This is something [Burgos] explained to you she knew
because he was living with her”; and, “That’s the voice on
the phone that already in her head knew that the person she
was translating for, has a history of distributing
methamphetamine.” To this list, we add one more: The
government’s statement that Mageno “knew she was
translating for a known methamphetamine dealer.”11

10
Any inference would have been fairly weak from the actual evidence,
which did not even directly establish that Mageno knew of the
deportation. Mageno’s knowledge of Burgos’s deportation could have
been inferred from her closeness to Burgos, but establishing knowledge
of the reason for the deportation would then require an inference from an
inference.
11
Our dissenting colleague accepts, as he must, that the prosecution
made one misstatement, but protests that the first four times the
prosecution made the same point less explicitly, the statements were just
requests for inferences from other facts of record. Dissent at 49. The
 UNITED STATES V. MAGENO 21

That the prosecutors’ statements during closing argument
were improper is therefore plain.

Second, as we are conducting plain error review, we must
ask if the errors affected Mageno’s “substantial rights,” i.e.,
whether they were sufficiently prejudicial that there exists a
“a reasonable probability that the error[s] affected the
outcome of the trial.” Marcus, 560 U.S. at 262. We may
reverse on plain error review “only if the prosecutor[s’]
improper conduct . . . tainted the verdict and deprived
[Mageno] of a fair trial.” United States v. Sanchez, 659 F.3d
1252, 1257 (9th Cir. 2011) (citation and internal quotation
marks omitted)). We consider the statements in the context
of the entire trial, including curative instructions given to the
jury and the weight of the evidence against the defendant, to

government did not in its own review of the record see the statements that
way. It recognized in its brief that there were several “incorrect
statements” (emphasis added) and cited to three of the statements that our
dissenting colleague insists were proper. Moreover, the dissent’s view is
belied by the statements themselves, which do not request that the jury
infer the facts stated but recite them as having been affirmatively
established. While the government could have “invite[d],” Kojayan,
8 F.3d at 1321, the jury to infer that Mageno knew about Burgos’s
deportation and provided argument concerning the facts favoring such an
inference, id., it did not do so.
22 UNITED STATES V. MAGENO

ascertain the statements’ likely effect.12 Id.; United States v.
Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005).

The comments at closing clearly misstated evidence, by
explicitly and implicitly stating, five times in all, that Burgos
testified that Mageno knew he was previously deported for
drug trafficking. Misstating the evidence from trial is a
particularly prejudicial form of misconduct, because it
distorts the information the jury is to rely on in reaching a
verdict. Cf. Darden v. Wainwright, 477 U.S. 168, 181–82
(1986). By doing so, it also usurps the jury’s prerogative of
drawing, or not drawing, otherwise permissible inferences.

In addition, the trial judge did not admonish the jury to
disregard these misstatements. Although the judge gave the
standard instructions that statements from lawyers are not
evidence, and that the jury is to rely on its own recollection
of the evidence at trial, these instructions were never
expressly tied to the misstatements. See United States v.
Combs, 379 F.3d 564, 575 (9th Cir. 2004); United States v.
Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992). “[T]he standard

12
Our dissenting colleague distorts this analysis by applying the Jackson
v. Virginia standard for reviewing the sufficiency of the evidence to an
analysis of prosecutorial misstatements during closing argument.
443 U.S. 307, 326 (1979). Our “presum[ption] . . . that the trier of fact
resolved . . . conflict[ing inferences] in favor of the prosecution,” Dissent
at 48 (quoting Jackson, 443 U.S. at 326), applies in the sufficiency-of-the-
evidence context, not the prejudicial error context. When we review the
effect that an error had on the outcome of a criminal jury trial, we “must
consider the probable effect the prosecutor’s response would have on the
jury’s ability to judge the evidence fairly.” United States v. Young, 470
U.S. 1, 12 (1985). In doing that, we do not presume that the jury took the
view of the evidence most favorable to the government, as it may well not
have done so. See, e.g., Dixon v. Williams, 750 F.3d 1027, 1036 (9th Cir.
2014) (per curiam).
 UNITED STATES V. MAGENO 23

judicial caution that the jury’s recollection controls” is not a
“cure-all,” Gaither, 413 F.2d at 1079, especially where, as
here, repeated misstatements of fact went uncorrected.
Because Mageno’s attorney did not catch the government’s
error, the jury likely accepted the government’s
characterization of the evidence as a given. And if the jury’s
own recollection of Burgos’s testimony differed from the
prosecutors’ recitation, the jury likely would have speculated
that the prosecutors’ misstatements had at least some factual
basis — that is, that the prosecutors knew the statement was
so, even if there was no such testimony.13

Moreover, the erroneous comments featured prominently
in both government closing arguments, including the last plea
the members of the jury heard in the primary closing
argument. An error that is “emphasized . . . during [a] trial”
is more likely to influence a jury. See Roger J. Traynor, The
Riddle of Harmless Error 75 (1970). Here, in his very last
statement to the jury, the first prosecutor tied that erroneous
fact directly to the central issue in the case, telling the jury
that Mageno was guilty because she “knew she was
translating for a known methamphetamine dealer.” (Emphasis
added.) The second prosecutor reiterated the erroneous
statement by Burgos, this time explicitly, during rebuttal.
The prominence the government afforded its description of
the nonexistent testimony in its closing arguments reflects the
critical role the point was meant to play in convincing the
jury that Mageno knew Burgos had been involved in drug
activity when she translated his calls.

13
For that reason, assuring the jury that facts not in evidence support the
government’s case, in addition to constituting trial error, can violate a
defendant’s right to due process. See Combs, 379 F.3d at 574.
24 UNITED STATES V. MAGENO

In short, this is not a situation in which the “potential
prejudice of the prosecution’s comments was mitigated”
because “the comment did not pervade the proceedings and
was not emphasized.” Hein v. Sullivan, 601 F.3d 897, 916
(9th Cir. 2010).

The misstatement of the evidence was also important in
its effect on Mageno’s defense, and in its connection to the
other evidence before the jury. The defense conceded that
there was a conspiracy to distribute narcotics in the amount
alleged by the government, putting its eggs instead in the
“knowledge” basket. Mageno insisted that she was Burgos’s
dupe — she was used to translate purposely opaque
conversations and was lied to about their content. Consistent
with that defense, Mageno’s counsel during closing argument
characterized the central question in the case as, “What did
she know[,] and when did she know it?” And again: “[D]id
she know what was happening and was it her intention to
further this conspiracy?” Defense counsel repeatedly argued
in closing that (1) Mageno did not know that the coded
conversations she translated were about drug activity; (2) that
at the time she translated the conversations she believed that
they “had to do with cement”; and (3) that Mageno first
learned Burgos was involved in drug trafficking on
November 17, when Burgos and Mageno were being
followed (Mageno wanted to know why they were followed,
and Burgos told her why).

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. 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
 UNITED STATES V. MAGENO 25

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.

The prosecutors’ misstatements may have also confused
defense counsel. There was no break between the
government’s initial closing argument and the defense
argument. Defense counsel followed the government’s lead
in misstating Burgos’s testimony, although with the caveat
that he was not sure Burgos did say that Mageno knew the
reason for the deportation. Then, feeling that he had to poke
holes in the foundational basis for Burgos’s non-existent
testimony, defense counsel launched a weak counterattack,
arguing: “[T]he question is how would he know she knew
why? Did he come up [to her] and say, hey, by the way, I’ve
been dealing drugs, you know, and I’m gone?” Defense
counsel thereby challenged the credibility of its own key
witness, Burgos, who had stated that Mageno was “an
innocent person.” To attack Burgos’s credibility on the basis
of something he did not say likely damaged the defense
overall, by undermining Burgos’s general corroboration of
Mageno’s version of events.14

14
Our dissenting colleague thinks we should hold Mageno’s attorney’s
feet to the fire for failing to object to the prosecution’s misstatements and
then echoing the prosecution’s errors in his closing. Dissent at 56. But
the dissent’s contention that Mageno’s attorney “introduced” the error,
Dissent at 32, misconstrues the record: The government acknowledges it
misstated Burgos’s testimony three times before Mageno’s attorney
approached the lectern. And Mageno’s attorney never committed himself
to the most incriminating statement from the prosecution — that Mageno
knew why Burgos was deported.
26 UNITED STATES V. MAGENO

Lacking any direct evidence, the government’s case
against Mageno relied solely on circumstantial evidence —
principally, the content of the phone calls Mageno translated
and the trip to Yakima — and argued that the jury should
infer that she had to know the topics discussed in the phone
calls were illicit. Aside from the misstated testimony, there
was no direct evidence of Mageno’s knowledge of drug
trading, let alone involvement in it. As her lawyer pointed
out in closing: “Mageno never bought drugs, never brought
drugs, never sought drugs. She never sold drugs. . . . She
never even had drugs. No witness testified that she had any
drugs because she didn’t.” That summary is accurate: The
government presented no evidence that Mageno was ever in
the presence of drugs. And drugs were never explicitly
mentioned in the phone calls Mageno translated, not once. In
a case based entirely on inference, the government’s bald
assertion that Burgos “testified [Mageno] knew” that he was
deported for methamphetamine trafficking stands alone as
powerful, direct evidence that Mageno knew about Burgos’s
history of involvement in the drug trade, and so must have
known what was going on in the phone calls. “Is . . . the past
. . . prologue?” the prosecution asked in its rebuttal argument,
driving home this theme in its final presentation to the jury.

Furthermore, had the statement about Mageno’s
knowledge been made, it would almost surely have been
believed. Burgos was testifying in Mageno’s defense,
presumably would want to help his godmother’s case, and so
had no motive to lie about what she knew concerning his
prior drug trafficking history.

Weighing all the above factors, we conclude that the
government’s misstatements likely prejudiced the outcome of
 UNITED STATES V. MAGENO 27

Mageno’s trial. The plain error substantial rights requirement
was therefore met.

Finally, we consider whether “the error seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Marcus, 560 U.S. at 262. “An error
may ‘seriously affect the fairness, integrity or public
reputation of judicial proceedings’ independent of the
defendant’s innocence”; “[c]onversely, a plain error affecting
substantial rights does not, without more, satisfy [this]
standard.” Olano, 507 U.S. at 736–37. We have already
observed that the likelihood that the error in this case affected
the outcome is high. We further conclude that the type of
error that occurred is the something “more” that satisfies the
fourth prong of the plain error analysis: By repeatedly stating
that a key witness gave damaging testimony that he did not in
fact give, the prosecution encouraged the jury to convict
Mageno on the basis of the prosecution’s own statements,
rather than on evidence adduced during trial. This error
seriously impeded the jury’s ability to function as an
impartial fact-finder, thereby affecting the fairness and
integrity of judicial proceedings.

The government and our dissenting colleague suggest that
the fourth prong of plain error review is not met, because the
prosecution did not intentionally misstate the evidence during
closing argument. We reject this contention for two reasons.

First, our “warrant” to address prosecutorial error “arises
from the defendant’s broad right to a ‘fair trial’ guaranteed by
the Due Process Clause[,]” Weatherspoon, 410 F.3d at 1152
(Trott, J., concurring in part, dissenting in part), and “the
touchstone of due process analysis . . . is the fairness of the
trial, not the culpability of the prosecutor.” Smith v. Phillips,
28 UNITED STATES V. MAGENO

455 U.S. 209, 219 (1982). Prosecutorial misstatements can
constitute error “even where . . . they were apparently made
in good faith.” Gaither, 413 F.2d at 1079; see Bennett L.
Gershman, Mental Culpability and Prosecutorial Misconduct,
26 Am. J. Crim. L. 121, 122–25 (1998) (observing, after
surveying the case law, that courts generally apply an
objective approach to claims of prosecutorial misconduct, and
“do not consider a prosecutor’s intent to violate a trial rule”).
For example, we have held a prosecutor’s invocation of
personal knowledge “unquestionably improper,” even while
“recogniz[ing] the difficulty in identifying errors absent an
objection,” and even while “commend[ing] the United States
Attorney” for “conced[ing] . . . the error” on appeal. United
States v. Rangel-Guzman, 752 F.3d 1222, 1225 (9th Cir.
2014). And, as already stated, such misstatements are a type
of error that where possibly determinative can affect the
fairness and integrity of a jury trial, regardless of a
prosecutor’s subjective intent.

Second, while the misstatements here do not rise to the
level of intentional misconduct, they were exceedingly
reckless, and paid too short shrift to the prosecutors’
“obligation” to seek a conviction only on the basis of facts in
the record. Gaither, 413 F.2d at 1079. If the prosecutors
were unsure about what Burgos actually testified to, they
should have qualified their statements accordingly —
especially on rebuttal, after defense counsel questioned
whether Burgos did testify that Mageno knew the reason he
was deported.

The prosecutor in United States v. Carrillo, 16 F.3d 1046,
1050 (9th Cir. 1994), for example, misstated a fact on which
the defense placed much significance. But the prosecutor
prefaced his misstatement by saying, “I may be wrong, and
 UNITED STATES V. MAGENO 29

your recollection controls, but I thought . . . ,” and followed
the misstatement by reminding the jury that, “[a]gain, your
recollection controls.” Id. Here, in contrast to Carrillo, the
prosecutors chose to rely heavily on their own recollection of
the testimony of a witness whom they had not themselves
used in their case in chief. By doing so, they took the risk
that their recollection of the evidence would prove erroneous
— as it did. And then the second prosecutor exacerbated the
problem by relying on the mistake in rebuttal — “He testified
she knew why he was deported.”

“Evidence matters; closing argument matters; statements
from the prosecutor matter a great deal.” Kojayan, 8 F.3d at
1323. Although there is no evidence that the prosecutors’
misstatements were intentional, we nonetheless conclude that
the error seriously affected the fairness of Mageno’s trial.15

In sum, based on our review of the case against Mageno,
we find it reasonably probable that she was convicted based
on the prosecutors’ false account of Burgos’s testimony. We
commend the government for bringing the missteps in this
case to our attention. While it could be said that our decision
to reverse is proof of the old adage that “no good deed goes
unpunished,” we do not see it that way. “[L]awyers
representing the government in criminal cases serve truth and
justice first.” Id. Prosecutors have a special responsibility to
provide “those accused of crime a fair trial.” Id. (quoting

15
By pointing out that the government was reckless, we do not suggest
that recklessness or any other level of prosecutorial culpability is a
prerequisite to a determination that the error seriously affects the fairness,
integrity or public reputation of judicial proceedings, relevant though it
may be. See Marcus, 560 U.S. at 262. However, such culpability can
justify dismissal of an indictment as a sanction, a remedy we find
unnecessary here. See Kojayan, 8 F.3d at 1325.
30 UNITED STATES V. MAGENO

Donnelly v. DeChristoforo, 416 U.S. 637, 648–49 (1974)
(Douglas J., dissenting)). By acknowledging its error on
appeal, the government has performed this function
admirably. But the government also created the problem, and
we will, therefore, reverse Mageno’s conviction so that she
may have an untainted shot at maintaining her innocence
without the prosecution’s damaging misstatements.

REVERSED AND REMANDED.

WALLACE, Circuit Judge, dissenting:

I respectfully dissent. Mageno did not object to the
alleged prosecutorial misstatements at trial, and did not argue
that the statements prejudiced her in her appellate briefs.
Mageno’s appeal meets none of our exceptions for
consideration of waived arguments. Instead of following our
precedent and deeming the argument waived, the majority
creates a new exception, considering an argument raised for
the first time not by the appellant at trial, nor in appellate
briefs, but by a member of our panel hearing argument.
Consideration of the issue in these circumstances is
inconsistent with our case law and the purposes behind our
rules about preserving issues for appeal.

Not only does the majority improperly reach the
prosecutorial statements despite Mageno’s waiver, the
majority also incorrectly concludes that the prosecutors’
statements constituted plain error. Only one of the statements
was improper. There was so much evidence submitted by the
government at trial that Mageno would have been convicted
regardless of the statements. Some of the prejudice Mageno
 UNITED STATES V. MAGENO 31

may have suffered was mitigated by the district court’s
curative instructions, and any misstatements were
unintentional.

Finally, the majority’s language implies that the district
court judge and the government committed serious errors in
Mageno’s trial. In fact, it was Mageno’s own attorney who
committed the most troubling errors in her trial.

I.

The government admits that at one point in its closing
arguments to the jury, a prosecutor erroneously stated that
Nancy Mageno’s godson, Jesus Guadalupe Felix Burgos, had
testified that she knew he had been previously convicted and
deported for a drug-related offense. In fact, Burgos had
testified about his close relationship with Mageno and that he
had been previously convicted and deported for that drug
offense, but he had not specifically testified that Mageno
knew why he had been deported. But Mageno’s attorney did
not object to the government’s misleading statement.

In an abundance of caution, the government also asserted
in its appellate brief that three other statements made in its
closing argument were improper, a position with which the
majority now agrees. In my view, these statements were not
erroneous because Mageno’s knowledge could be properly
inferred from the evidence submitted to the jury about the
close relationship between Burgos and Mageno. Regardless,
Mageno’s attorney objected to none of these allegedly
misleading statements.

To recap, the government prosecutor first argued in
closing statements that Mageno “had a choice whether to let
32 UNITED STATES V. MAGENO

her godson who she already knew had been deported for
distributing methamphetamine move in with her,” and that
Mageno “made the choice to help her godson, Virrio, the one
who had already been deported for distributing
methamphetamine.” Mageno’s attorney did not object that
there was no direct evidence that Mageno knew Burgos had
been deported for distributing methamphetamine.

A few minutes later, the government stated that Burgos
“explained to you she knew [about his deportation] because
he was living with her, then he comes back,” and that
Mageno “already in her head knew that [Burgos], the person
she was translating for, has a history of distributing
methamphetamine.” Mageno’s attorney did not object.

The government concluded its argument on a similar note:
the jury should convict Mageno because she “knew she was
translating for a known methamphetamine dealer.” Mageno’s
attorney did not object. Thus far, in my view, the
government’s statements were proper, based upon the
inference that Mageno knew those facts, and also knew why
Burgos had been deported, on the basis of the evidence
submitted to the jury regarding their relationship.

In the defense argument, Mageno’s attorney stated,
without “a hundred percent” confidence, that Burgos had in
fact testified that Mageno “knew about” why he had been
deported, or that “she knew why I was deported.” This is
when the actual error was first introduced: when Mageno’s
own attorney suggested that Burgos had testified that Mageno
knew why he was deported.

On rebuttal, the government followed Mageno’s attorney
and stated that Mageno knew that Burgos had “been deported
 UNITED STATES V. MAGENO 33

because he was trafficking methamphetamine while he was
living with her. He testified she knew why he was deported.”
Mageno’s attorney did not object. While there was sufficient
indirect evidence in the record that Mageno knew the reason
for Burgos’s deportation, Burgos had not testified that
Mageno knew. Both the defense argument and the
government’s closing rebuttal arguments were in error.

Based upon the evidence at trial, including four telephone
calls obtained through lawful wiretaps between Mageno and
drug customers or federal agents posing as drug customers,
where Mageno translated certain suspicious words on behalf
of Burgos, Mageno was convicted of conspiracy to distribute
a controlled substance. Mageno did not file a post-conviction
motion to vacate the judgment and grant a new trial based on
the government’s statements during closing arguments. See
FED. R. CRIM. P. 33. Instead, Mageno filed this appeal on a
single ground: that there was insufficient evidence to support
her conviction. She never raised any of the government’s
statements regarding her knowledge of why Burgos had been
deported. In its appellate brief, the government “admirably,”
in the majority’s words, acknowledged the prosecutors’
possibly misleading statements. Majority Op. at 30. In its
brief, the government argued that the statements nonetheless
did not warrant reversal of Mageno’s conviction, because the
prosecutors had not made the statements in bad faith, Mageno
was not deprived of a fair trial, the district court instructed the
jury that arguments by attorneys are not evidence, and
Mageno would have been convicted even if the government
had not made the statements. Mageno was thus indisputably
on notice of the prosecutors’ statements. However, she did
not submit any reply brief to adopt the statements as a basis
for reversal in her appeal.
34 UNITED STATES V. MAGENO

At the first part of oral argument before this court,
Mageno’s attorney did not affirmatively raise the argument
that the government committed reversible error. More than
four minutes of his allotted ten minutes passed before a
member of the panel of this court asked Mageno’s attorney
about the government’s statements. After further discussion
by the judge, Mageno’s attorney responded to the judge’s
assertion of Mageno’s position by stating that the statements
were “a valid argument” to support reversal. Even then,
Mageno’s attorney spent his subsequent time explaining why
he had made the misleading statement in his closing argument
instead of arguing that the government’s statements
prejudiced Mageno. Near the end of his allotted argument
time, Mageno’s attorney offhandedly stated “I don’t believe
[the government’s statements were] harmless error.”1 At the
very end of argument, Mageno’s attorney returned to the
point in passing, still not clearly arguing that Mageno had
suffered any prejudice from the government’s statements.

II.

The majority errs first by even considering whether to
reverse Mageno’s conviction based on the government’s
statements. Mageno did not object to the government’s
statements at trial. She did not argue in either her opening or
reply brief on appeal that her conviction should be reversed
based on the statements. In fact, her lawyer only commented
on the unraised issue when questioned about it during oral

1
Mageno’s lawyer was so indifferent to the argument, he did not even
state the correct legal standard for our review of the government’s
statements. Mageno did not object to the statements at trial, so we only
reverse if the government’s statements constituted “plain error,” rather
than if the statements were “harmless error.” Majority Op. at 12.
 UNITED STATES V. MAGENO 35

argument. When an appellant does not present an argument
for review in any brief, we usually would consider that
argument for reversal waived. We recognize some exceptions
to that rule. But, contrary to the majority, none of the
exceptions apply here, because the government did not fully
brief the issues addressed in the majority’s disposition. We
should refuse to review the government’s alleged
misstatements, because Mageno has waived any argument
that the statements constituted “plain error.”

The majority’s review of the government’s statements is
wrong for at least two other reasons. The majority asserts it
considers the prosecutorial comments “in the context of the
entire trial.” Majority Op. at 21. But such review is
impossible without adversarial briefing. Instead, the majority
repeatedly assumes the effect of the prosecutorial statements
from the cold record and its speculation about trial practice.
Whatever review the majority performs, it is not review “in
the context of the entire trial.”

Finally, the majority considers the prosecutorial
statements because Mageno’s attorney did “adopt[] the issue
at oral argument” before this court, so review of the
statements allows Mageno to remain the “master of her
appeal.” Majority Op. at 15. But Mageno’s attorney’s
indifferent responses to questions from a member of this
panel do not constitute “adoption” of an argument for
purposes of our review.

A.

A convicted criminal who fails to object to a prosecutorial
or judicial error at trial can still seek relief on appeal if the
mistake is “a plain error that affects substantial rights.”
36 UNITED STATES V. MAGENO

United States v. Marcus, 560 U.S. 258, 262 (2010), quoting
FED. R. CRIM. P. 52(b). The “burden of establishing
entitlement to relief for plain error is on the defendant
claiming it, and for several reasons . . . that burden should not
be too easy for defendants.” United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004).

Separately, when an appellant fails to argue, specifically
and distinctly, an issue in his opening brief on appeal, we
usually hold that the appellant has waived his right of
appellate review of that issue, even in criminal cases. United
States v. Rodriguez-Preciado, 399 F.3d 1118, 1126 (9th Cir.
2005).

Mageno did not object to any of the government’s
statements at trial, and did not argue that the statements
merited reversal of her conviction in her opening or reply
briefs on appeal. The government repeatedly argued that
because “Mageno has not argued that the prosecutors’
statements warrant reversal,” she “has therefore forfeited
such a claim.” Thus, under our normal practice, we would not
consider the statements in this appeal.

B.

I recognize that our court sometimes considers arguments
not raised in an opening brief. Our precedent makes clear that
the circumstances are limited to three well-established
exceptions. “First, we will review an issue not present in an
opening brief for good cause shown, or if a failure to do so
would result in manifest injustice. Second, we have discretion
to review an issue not raised by appellant when it is raised in
the appellee’s brief. Third, we may review an issue if the
failure to raise the issue properly did not prejudice the
 UNITED STATES V. MAGENO 37

defense of the opposing party.” United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992) (citations and internal
quotation marks omitted). Contrary to the majority’s
conclusion, none of the exceptions apply here. Further,
consideration of an issue so thoroughly waived is inconsistent
with the purposes of our rules about preserving issues for
appeal.

1.

The majority asserts that we may consider the
prosecutorial statements because the government addressed
the statements in its appellate brief, and thus is not
prejudiced, so both the “second and third circumstances [from
Ullah] exist [to] justify our reaching the issue.” Majority Op.
at 13. While the government did notify us of its possibly
misleading statements in the closing argument, the
government did not have the opportunity to brief fully two of
the issues reached by the majority, and thus is prejudiced by
the majority’s reversal on that basis.

The government has never had the opportunity to rebut
the legal sources the majority now offers to reverse Mageno’s
conviction. Majority Op. at 18–30. Had Mageno adopted the
argument in her optional reply brief, as the government likely
assumed, the government would have then had the
opportunity to file a supplemental brief or respond to her
analysis in oral argument. But Mageno did not file any reply
brief. Because of that failure, the government never had the
opportunity to explain (as I do later) the incorrect reasoning
used to reverse Mageno’s conviction.

Second, the government has never had the opportunity to
rebut the majority’s nearly unprecedented relief of reversing
38 UNITED STATES V. MAGENO

a conviction based on an error in these factual circumstances,
when not objected to at trial or raised in either an opening or
reply brief. The majority cites to no binding authority from
the past thirty years where this court or the Supreme Court
has reversed a conviction when a defendant did not object to
an alleged government error at trial, did not raise the alleged
error in her opening brief, and did not raise or even refer to
the alleged error in her optional reply brief. Even in United
States v. Atkinson, 297 U.S. 157 (1936), where the Supreme
Court first recognized that “[i]n exceptional circumstances,
especially in criminal cases, appellate courts . . . may, of their
own motion, notice errors to which no exception has been
taken,” the Court held that “no such case is presented here,”
and affirmed the conviction because “the error assigned was
not made the subject of appropriate exception or request to
charge upon the trial.” Id. at 160.

If Mageno had raised the argument in her reply brief, the
government could have prepared to argue specifically about
the statements at oral argument. But Mageno never did so.
The government thus has not had the opportunity to explain
why this case does not implicate the drastic remedy offered
by the Supreme Court in Silber v. United States, 370 U.S. 717
(1962) (per curiam).2 The majority’s reversal in this posture

2
The majority engages in a serious and impressive analysis of our
theoretical power to correct plain errors not presented to us. Majority Op.
at 15–18. But that power is discretionary. United States v. Jeffery,
473 F.2d 268, 270 n.2 (9th Cir. 1973). Using that discretion, we have
cabined our authority to review unraised plain errors under Silber and
Rule 52(b) to the three circumstances described in Ullah. See United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (holding that “we
will not apply an exception [besides the three from Ullah] on our own
accord”).
 UNITED STATES V. MAGENO 39

thus prejudices the government. Contrary to the majority,
neither the second nor third exceptions from Ullah apply
here.

2.

We also consider an argument not raised in an opening
brief when there is “good cause shown” or “failure to do so
would result in manifest injustice.” Ullah, 976 F.2d at 514.
Mageno has not shown good cause for her failure to raise the
prosecutorial misstatements in her opening brief. In fact, she
has shown absolutely nothing because she failed to file any
reply brief, and there is nothing in the record to show she was
unable to raise the issue, at the latest, in a reply brief. See,
e.g., Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d
1142, 1150 n.3 (9th Cir. 2007) (considering an argument not

The majority recognizes that “circumstances such as these do not
present themselves very often.” Majority Op. at 17 n.8. The majority then
suggests that such circumstances do arise in other circuits with some
frequency. But those far-flung results do not trump our decisions in Kama
and Ullah.

The only decision of ours that the majority cites, United States v.
McKinney, 707 F.2d 381 (9th Cir. 1983), is at odds not only with Kama
but also with Rule 52(b) itself, because there we incorrectly reviewed
whether the Confrontation Clause violation not objected to at trial was
“harmless beyond a reasonable doubt,” id. at 384–85, rather than under the
correct standard of whether the alleged error was “plain.” See Silber,
370 U.S. at 718; United States v. Gomez, 725 F.3d 1121, 1129 (9th Cir.
2013) (subjecting alleged violations of the Confrontation Clause not
objected to at trial to plain error review); McKinney, 707 F.2d at 385
(Belloni, J., dissenting) (recognizing that the majority applied the incorrect
legal standard). Thus, our application of the waiver rules in McKinney was
wrongly decided at the time and is also inconsistent with our later
precedent.
40 UNITED STATES V. MAGENO

raised in an opening brief because appellants explained in
their reply brief why they had not done so).

Nor would Mageno suffer a manifest injustice if we did
not consider the prosecutorial statements. If Mageno did
suffer any prejudice from the government’s statements, she
could still have her conviction vacated, despite her waiver
before this court, by filing a habeas petition based on
ineffective assistance of counsel. She could then properly
raise for judicial review the government’s statements and her
attorney’s failure to object to, or brief, those statements. This
is the approach taken by some of our sister circuits. United
States v. Evans, 131 F.3d 1192, 1193 (7th Cir. 1997)
(refusing to address an issue raised by defendant for the first
time in a reply brief, because the defendant “may present this
contention under 28 U.S.C. § 2255”); see also United States
v. Jernigan, 341 F.3d 1273, 1290–92 (11th Cir. 2003)
(Fullam, J., concurring) (appellants cannot be afforded relief
on direct appeal “but must await collateral attack via a § 2255
motion” because they did not object to the error at trial or
raise the issue on appeal even though “neither appellant
received a fundamentally fair trial”).

Requiring Mageno to raise the ineffectiveness of her
counsel in a collateral proceeding is particularly necessary
here, because Mageno still employs the same counsel who
acted deficiently at trial and on appeal. I have found no case
where a court has held counsel to be ineffective when the
lawyer still represents the defendant. Mageno’s attorney is
still acting as her agent, so she is responsible for any
negligent acts he may have committed. Coleman v.
Thompson, 501 U.S. 722, 753–54 (1991); accord Walls v.
Bowersox, 151 F.3d 827, 836 (8th Cir. 1998) (viewing
 UNITED STATES V. MAGENO 41

“counsel’s pronouncements regarding his [own ineffective]
performance with extreme skepticism”).

Because the majority wrongly concludes that the second
and third Ullah exceptions apply, it “do[es] not consider
whether this is a case involving ‘manifest injustice.’”
Majority Op. at 13 n.5. Regardless, it criticizes my view that
Mageno should raise the government’s statements in a
collateral proceeding after firing her attorney because this
would be a “greater injustice,” and states that “[w]e need not
now decide whether punting an otherwise ripe issue from a
direct appeal to habeas corpus review is ever justified.” Id. at
18 n.9. But that argument misses the point. As I explain
above, the ineffective-assistance issue is not ripe, because
Mageno has not fired her attorney or raised the issue, and the
record about Mageno’s attorney’s strategic decisionmaking
(or lack thereof) is not complete. While the majority suggests
it would be an injustice to require Mageno “to wait in prison
one, two, three or more years longer to get to the same result”
of release from prison, that is precisely what the Supreme
Court requires: even when a defendant has a meritorious
claim for ineffective assistance, the defendant often must
wait, in prison, to file a collateral attack instead of having a
court decide the issue on direct appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003) (“in most cases a motion
brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance”).

3.

I understand that our rules about preserving issues can
sometimes seem academic and formalistic, rather than
practical. As a result, we often see serious disagreements
regarding whether to apply the rules in face of an alleged
42 UNITED STATES V. MAGENO

“manifest injustice.” See, e.g., Ward v. Chavez, 678 F.3d
1042, 1052 n.6 (9th Cir. 2012); id. at 1053–54 (Wallace, J.,
dissenting); Hall v. City of Los Angeles, 697 F.3d 1059,
1070–72 (9th Cir. 2012); id. at 1077–78 (Ikuta, J.,
dissenting).

There are indeed important “formal” reasons for holding
that a party waives an issue if he fails specifically and
distinctly to provide argument about the issue at trial or in
appellate briefs. Because judges “are not like pigs, hunting
for truffles buried in briefs,” we require parties to preserve
valid issues to assist our review. Greenwood v. F.A.A.,
28 F.3d 971, 977 (9th Cir. 1994), citing United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). As a general
matter, we have an adversarial court system, where “appellate
courts do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions
presented and argued by the parties before them.” Nat’l
Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 756
n.10 (2011); Knox v. Serv. Employees Int’l Union, Local
1000, 132 S. Ct. 2277, 2298 (2012) (Sotomayor, J.,
concurring in the judgment); see also Diarmuid F.
O’Scannlain, The Role of the Federal Judge Under the
Constitution: Some Perspectives from the Ninth Circuit, 33
HARV. J.L. & PUB. POL’Y 963, 975–78 (2010). We should
also encourage parties to raise issues before district judges,
who have greater competence to find facts, which allows us
to rule on a complete record. Joan E. Steinman, Appellate
Courts as First Responders: The Constitutionality and
Propriety of Appellate Courts’ Resolving Issues in the First
Instance, 87 NOTRE DAME L. REV. 1521, 1602–04 (2012).
Further, we do not have the resources to be able to examine
minutely every trial record without assistance from the
litigants to determine if a defendant’s constitutional rights
 UNITED STATES V. MAGENO 43

have been violated. Sarah M. R. Cravens, Involved Appellate
Judging, 88 MARQ. L. REV. 251, 272–73 (2004).

Regardless of our personal views on our law about
waiver, we, as a three-judge panel, have no power to create a
new exception beyond the three from Ullah. See Kama,
394 F.3d at 1238 (“we will not apply an exception [besides
the three from Ullah] on our own accord”). We are bound by
a prior decision about a procedural rule like appellate waiver
no less than a decision about a substantive rule. Miller v.
Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). Because
this case does not meet any of the exceptions from Ullah, we
should not consider the prosecutorial statements at all.

C.

The majority’s decision to consider the prosecutorial
statements is not only inconsistent with our case law and the
formal bases for our waiver rules. There are also important
practical reasons for our rules, which are well-illustrated by
this appeal.

As the majority describes, we can only reverse Mageno’s
conviction if the government’s alleged misstatements
“affected Mageno’s ‘substantial rights’” in that “they were
sufficiently prejudicial.” Majority Op. at 21. The majority
carefully reviews the record to determine the prejudice
Mageno may have suffered. But it may have missed a
statement by the government or the district court judge that
further mitigated any prejudice that Mageno suffered from
the comments. The majority may have incorrectly assessed
the extent of the evidence submitted to the jury against
Mageno. Because Mageno failed to raise the issue in opening
or reply brief, the government has not been afforded the
44 UNITED STATES V. MAGENO

opportunity to submit reference to evidence or argument
regarding the tone or inflection used by the prosecutors when
making the statements, considerations which we recognize
are important in reviewing whether an attorney argument is
improper. Lasar v. Ford Motor Co., 399 F.3d 1101, 1114–15
(9th Cir. 2005). All the majority has is the cold record and six
pages of the government’s appellate brief as its basis for
deciding to reverse Mageno’s conviction.

Indeed, as the majority correctly states, we must consider
the government’s statements “in the context of the entire
trial.” Majority Op. at 21. But there is no way to examine the
context of this trial without adversarial briefing. Instead, the
majority cites to generalities from other cases and its own
speculation and understanding of trial practice: “[m]isstating
the evidence from trial is a particularly prejudicial form of
misconduct,” id. at 22; “the jury likely accepted the
government’s characterization” and “likely would have
speculated that the prosecutors’ misstatements had at least
some factual basis,” id. at 23; “[a]n error that is ‘emphasized
. . . during [a] trial’ is more likely to influence a jury,” id.
(citations omitted); “[t]he prominence the government
afforded . . . reflects the critical role the point was meant to
play in convincing the jury that Mageno knew Burgos had
been involved in drug activity,” id.; “[t]he prosecutors’
misstatements may have also confused defense counsel,” and
that the defense attorney “fe[lt] that he had to poke holes in
the foundational basis for Burgos’s non-existent testimony,”
id. at 25; Mageno’s attorney’s statement “likely damaged the
defense overall,” id.; and “had the statement about Mageno’s
knowledge been made, it would almost surely have been
believed,” id. at 26. These are generalizations, speculations,
and assumptions about the jury’s response, the government’s
intent, and Mageno’s attorney’s actions. They are not
 UNITED STATES V. MAGENO 45

grounded in the record, and are not necessarily true of the
actual trial we are reviewing.

If we refused to review the statements, Mageno could file
a habeas petition based on ineffective assistance of counsel.
That would allow her to provide specific record evidence
about the actual trial we are reviewing. But the majority’s
premature consideration fails to review the comments in the
context of the entire trial.

D.

Finally, the majority suggests that its review honors the
principle that Mageno is the “master of her appeal,” and that
it only reviews the comments because Mageno’s attorney
adopted the issue at oral argument. Majority Op. at 15.

But Mageno’s attorney did not adopt the argument. He
merely agreed with a member of this court that it was “a valid
argument.” He never made a coherent argument for why we
should reverse, instead misstating the legal standard for our
review. His passing responses do not constitute adoption of
an argument. See Laboa v. Calderon, 224 F.3d 972, 980 n.6
(9th Cir. 2000) (refusing to consider an argument suggested
by a habeas petitioner when stated with “cryptic” and
“passing” references, because “we [do not] see how wholly
crafting an argument on [the petitioner’s] behalf could be
anything but prejudicial to the Warden”); accord Swipies v.
Kofka, 419 F.3d 709, 717 (8th Cir. 2005) (refusing to review
an argument when the habeas petitioner did not object at trial
or raise the argument in his appellate briefs, in light of his
“inaction” and “relative indifference” to the argument).
46 UNITED STATES V. MAGENO

E.

Under our usual rules requiring an appellant to raise an
issue in its briefs, Mageno has waived review of the
government’s allegedly improper statements. This appeal
does not meet any of the exceptions we have recognized to
overcome such a waiver. Instead, the majority makes up a
new exception out of whole cloth, at odds with the nature of
the American adversarial system and inappropriate in this
posture. There is no basis for the majority’s misguided
consideration of the government’s alleged misstatements in
Mageno’s trial. When a judge asks a question or makes a
statement that, as the record proves here, was not adopted by
defense counsel, the statement or question is not the
appellant’s issue on appeal.

III.

Even if we were to consider the government’s statements,
the majority errs in reversing Mageno’s conviction. Mageno
did not object to the statements, so we review for plain error.
We should only reverse if “(1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights, which
in the ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Marcus, 560 U.S. at 262 (citations and
alterations omitted).

No plain error exists here. The jury could have inferred
from the indirect evidence that Mageno knew why Burgos
had been deported, which means that the government made
only one misstatement. Even if we accept that all of the
 UNITED STATES V. MAGENO 47

prosecutors’ statements at issue were erroneous, there is still
no basis to reverse the conviction because the statements did
not “so infect[] the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986). The evidence against
Mageno was so strong that the jury would have reached the
same verdict without the statements, some of the prejudice
she suffered was mitigated by the district court’s curative jury
instructions, and any misstatements were inadvertent.

A.

In his testimony, Burgos stated that he had been living
with Mageno in 2007, and that he was deported because he
was trafficking methamphetamine. After he returned to the
United States in March 2010, he moved back in with Mageno.
Because of an objection, Burgos never answered the
government’s flat question of whether Mageno knew why
Burgos was deported.

In rebuttal argument, a prosecutor stated that Burgos
“testified she knew why he was deported.” This statement
was incorrect. But the other statements made by the
government in closing argument are not clearly false. Burgos
testified that he had been living with Mageno (his
godmother), was deported for drug trafficking, and then
moved back in with her. The jury could infer both that
Mageno knew Burgos had been deported and why he had
been deported. Prosecutors are free to argue reasonable
inferences from the record. United States v. Gray, 876 F.2d
1411, 1417 (9th Cir. 1989). Each of the other supposed
misstatements the government made in closing was based on
the reasonable inference that Mageno knew why Burgos had
been deported, insofar as Mageno and Burgos were close and
48 UNITED STATES V. MAGENO

Burgos left Mageno’s house for three years and then,
mysteriously, returned.

Contrary to the majority, we do not review whether that
inference was “fairly weak,” Majority Op. at 20 n.10, or even
whether the government “request[ed] that the jury infer the
facts stated.” Id. at 21 n.11, citing United States v. Kojayan,
8 F.3d 1315, 1321 (9th Cir. 1993) (holding the government
did not commit misconduct when it “invite[d] the jury to infer
things from the evidence,” but not holding the inverse, that a
failure to invite the jury to reach a reasonable inference would
necessarily be improper). Instead, we review only whether the
inference was “reasonable.” Gray, 876 F.2d at 1411; see also
United States v. Small, 74 F.3d 1276, 1281, 1284 (D.C. Cir.
1996) (in an out-of-circuit case cited by the majority, the
court held that a statement was an unreasonable inference
from the evidence because there was “no evidence” to
support the statement, but nonetheless affirmed the
conviction). Here, the inference was reasonable because there
was indeed some evidence to support the inference that
Mageno knew why Burgos had been deported. Additionally,
when we review a conviction on appeal we “must
presume–even if it does not affirmatively appear in the
record–that the trier of fact resolved any such conflict[ing
inferences] in favor of the prosecution.” Jackson v. Virginia,
443 U.S. 307, 326 (1979).3

3
The majority disputes the relevance of Jackson. Majority Op. at 22
n.12. But it is actually the majority’s citation to Dixon v. Williams,
750 F.3d 1027 (9th Cir. 2014) that is irrelevant. Here, Mageno had not
submitted “considerable evidence” that she did not know why Burgos was
deported. Id. at 1036. The only evidence submitted was that Mageno and
Burgos were close, which supports the reasonable inference that Mageno
knew why Burgos was deported. In such a case, we should presume that
 UNITED STATES V. MAGENO 49

At most, then, I believe the government made one, rather
than five, erroneous statements in closing arguments: namely,
that Burgos had testified that Mageno knew why her godson
was deported.4

B.

But even if I agreed that all of the government’s
statements were based on unreasonable inferences from the
evidence and thus erroneous, there was sufficient evidence at
trial that it is improbable the jury would have reached a
different verdict if the government had not made them.
Majority Op. at 3, 11 (agreeing with the government that the
evidence was sufficient to support the jury’s verdict); United
States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987)
(reversal of conviction based on prosecutorial misstatements
only justified when “it is more probable than not that the
misconduct materially affected the verdict”).

Jurors heard four telephone calls from lawfully obtained
wiretaps between Mageno and drug customers or federal
agents posing as drug customers. In those calls, Mageno

the jury followed that reasonable inference. Also, Dixon was decided
under the “harmless,” rather than “plain,” error standard. Id. at 1034–36.
4
The government, in an abundance of caution, suggested in its brief that
three of the other statements were improper. But the government also
argued that “[t]he jury could have reasonably found that [Mageno] would
have likely known the circumstances that surrounded [Burgos’s]
deportation,” which would mean that only one of the statements was
erroneous. See Gray, 876 F.2d at 1417. The majority latches on to the
government’s suggestion that the three additional statements were
improper, but fails to analyze the government’s later, and correct,
argument that those three statements were proper. Majority Op. at 21 n.11.
50 UNITED STATES V. MAGENO

translated conversations for Burgos. A law enforcement agent
testified that the conversations included code words for
narcotics and narcotics sales.

After Mageno confronted an undercover agent who was
following her, and Burgos told her that he was involved in
drug activities, she refused to mention Burgos’s location to a
caller “over the phone,” because “things are also happening
here.” An agent with knowledge of this conversation testified
at trial that Mageno intended for the caller to call Burgos on
a different number in case a law enforcement offer was
listening. After Mageno indisputably knew of Burgos’s drug
activities, she traveled with him to Yakima, Washington.

This evidence shows that regardless of whether the
prosecutors had made the statements, the jury would still have
convicted Mageno. Although “there was no direct evidence
of Mageno’s knowledge of drug trading,” Majority Op. at 26,
the testimony at trial demonstrated that Mageno continued to
interact with Burgos at least twice after she indisputably
knew that he was dealing drugs, when she was evasive
towards the telephone caller, and on the trip to Yakima. Her
continued interaction with Burgos after she certainly knew he
was involved in narcotics provides strong circumstantial
evidence that she knew of his involvement all along.

C.

Even if the government’s statements were in error, most
of the prejudice Mageno may have suffered was mitigated by
the district court’s jury instructions. First, before opening
statements, the judge stated that “the questions of the lawyers
and their arguments are not evidence. What the witnesses say
is evidence. . . so it’s the statements of the witnesses, the
 UNITED STATES V. MAGENO 51

testimony of the witnesses, that’s important.” During jury
instructions, before closing arguments, the district court
instructed the jury that:

In reaching your verdict, you may consider
only the testimony and exhibits received in
evidence. The following things are not
evidence and you may not consider them in
deciding what the facts are: Number one,
questions, statements, objections, and
arguments by the - - let me start that again.
Number one, questions, statements,
objections, and arguments by the lawyers are
not evidence. The lawyers are not witnesses.
Although you may consider a lawyer’s
questions to understand the answers of a
witness, the lawyer’s questions are not
evidence. Similarly, what the lawyers have
said in their opening statements, what they
will say at their closing arguments, and at
other times, is intended to help you interpret
the evidence, but it is not evidence. If the facts
as you remember them differ from the way the
lawyers state them, your memory of them
controls.

Finally, the judge repeated one more time: “The arguments
and statements of the attorneys are not evidence. If you
remember the facts differently from the way the attorneys
have stated them, you should base your decision on what you
remember.”

Because juries are presumed to follow instructions given
to them, the district judge’s curative statements mitigated the
52 UNITED STATES V. MAGENO

prejudice Mageno may have suffered from the misstatements.
See United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir.
1995) (even if the prosecutorial statement was improper, the
district court’s caution to the jury that “‘[q]uestions,
objections, statements, and arguments of counsel are not
evidence in the case.’ . . . neutralized any prejudicial effect
the prosecutor’s statement may have had”).

The majority tries to distinguish this rule by arguing that
“general” rather than “specific” instructions do not mitigate
the prejudice caused by prosecutorial misstatements of fact.
Majority Op. at 22. But the majority can only do so by
overreading our decisions. Though we have suggested that
general jury instructions do not always fully “neutralize” the
harm of an improper prosecutorial comment, United States v.
Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992), United States v.
Combs, 379 F.3d 564, 575 (9th Cir. 2004), we have never
held that general instructions are wholly irrelevant to our
determination of prejudice, and in fact have held precisely the
opposite. Hein v. Sullivan, 601 F.3d 897, 914–16 (9th Cir.
2010) (“much of the potential prejudice of the prosecution’s
comments was mitigated. The trial court sustained a number
of objections and gave timely cautionary instructions to the
jury, including general instructions about the hortative nature
of summation”); Bracy, 67 F.3d at 1431–32. Where, as here,
the district judge thrice reminded the jury that only the
evidence could be considered in reaching its verdict, our case
law recognizes mitigation of the prejudice Mageno may have
suffered from the improper statements.

D.

Lastly, there is no evidence in the record that the
government’s misstatements were intentional. Though the
 UNITED STATES V. MAGENO 53

“touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor,” Smith v. Phillips, 455 U.S. 209,
219 (1982), we have repeatedly recognized that “[a]nyone
can make a mistake,” so to “determin[e] the proper remedy”
for prosecutorial misstatements, “we must consider the
government’s willfulness in committing the misconduct and
its willingness to own up to it.” Kojayan, 8 F.3d at 1318.
Here, the government has been willing to own up to its
arguable misconduct, pointing out the questionable
statements to us and to Mageno in its appellate brief despite
Mageno’s complete failure to object at trial or raise the issue
in her appellate briefs. This willingness, on the part of the
government, to own up to its possible errors provides yet
another reason that the statements did not affect Mageno’s
substantial rights, meriting reversal of conviction.

Once more, the majority offers little in the face of our
cases recognizing the importance of prosecutorial intent.
Majority Op. at 27–28. From our law, the majority cites only
our decision in United States v. Rangel-Guzman, 752 F.3d
1222, 1226 (9th Cir. 2014), where we affirmed the appellant’s
conviction because “there’s no reason to believe the jury
would have accepted the version of events posited by [the
appellant] . . . at trial—even absent the prosecutor’s erroneous
[statement]—[the appellant] has failed to demonstrate that the
prosecutorial error in this case affected his substantial rights.”
As I have stated, there is no reason to believe the jury would
have accepted Mageno’s story that she did not know of the
conspiracy given her close relationship with Burgos, and her
continued association with him even after she indisputably
knew he was dealing narcotics. The majority also cites a law
review article that observes that courts “generally” apply an
objective, rather than intent-based, approach to prosecutorial
54 UNITED STATES V. MAGENO

misconduct. Bennett L. Gershman, Mental Culpability and
Prosecutorial Misconduct, 26 AM. J. CRIM. L. 121 (1998).
Not only is a fifteen-year-old academic survey of out-of-
circuit case law and general perceptions of that law not
binding upon us, the article actually concluded that there are
several instances when a prosecutor’s mental state should be
relevant and suggests that “[c]ourts . . . explicitly identify a
prosecutor’s mental culpability in determining whether the
conduct was improper.” Id. at 164.

The majority implies that prosecutorial intent matters only
when the government qualifies the misstatements. Majority
Op. at 28–29, citing United States v. Carrillo, 16 F.3d 1046,
1050 (9th Cir. 1994). But we have not recognized such a
distinction. See, e.g., Jeffries v. Blodgett, 5 F.3d 1180, 1193
(9th Cir. 1993) (“[w]e do not believe that the [error] rendered
Jeffries’ trial fundamentally unfair. First, the statement was
inadvertent and not a prosecutorial attempt to elicit otherwise
inadmissible evidence”); Gage v. United States, 167 F.2d
122, 125–26 (9th Cir. 1948) (“[i]nsofar as any inaccuracy
existed in the prosecutor’s statement to the jury, it appears to
have been unintentional,” which supported our conclusion
that the “alleged error is not such as could have so seriously
prejudiced the rights of appellant as to require us to take
notice of it in the absence of objection or assignment of
error”).

As most of the government’s statements were based on
reasonable inferences from Burgos’s testimony and the
record, they were not erroneous. Gray, 876 F.2d at 1417.
Mageno faced so much evidence in her trial that there is no
“reasonable probability” that absent any government
misstatements she would have been acquitted. Hein, 601 F.3d
at 914. The district court repeatedly admonished the jury that
 UNITED STATES V. MAGENO 55

the statements of the lawyers were not evidence, which
further mitigated any prejudice Mageno may have suffered.
Bracy, 67 F.3d at 1431. The record shows that the
government made any misstatements inadvertently, and when
it realized the errors, brought them to our attention. Kojayan,
8 F.3d at 1318. Thus, even if Mageno had not waived review
of the prosecutorial statements, the statements did not affect
the outcome of her trial and did not seriously affect the
fairness of judicial proceedings, so there was no plain error
and we should not reverse her conviction.

IV.

Finally, I disagree with the implications of the language
the majority uses. The majority states that the “prosecutors’
statements during closing argument were improper,” Majority
Op. at 21, implies that the prosecutors failed to “serve truth
and justice first,” id. at 29, and states that it was the
prosecutors who “created the problem” here. Id. at 30.5 The
majority also implicitly condemns the district court for not
“expressly t[ying]” the instructions to the prosecutors’
misstatements. Id. at 22. But the truly negligent actor in
Mageno’s trial, her attorney, is mentioned only in passing.

5
The majority compares this appeal to our “recent case presenting a
similar prosecutorial error [where] the government also came forward and
acknowledged its error, but, unlike here, it did not do so until the en banc
stage and after repeated questioning.” Majority Op. at 11 n.4, discussing
United States v. Maloney, No. 11–50311, 2014 WL 801450 (9th Cir. Feb.
28, 2014) (en banc). The comparison is irrelevant and highly misleading:
that case involved intentional and far more troubling prosecutorial
misconduct by the government, by a different United States Attorneys’
Office, and the Assistant United States Attorneys in this case brought the
potentially erroneous statements to our attention in their answering brief,
not after questioning by the panel.
56 UNITED STATES V. MAGENO

Although the majority does not explicitly point out
Mageno’s attorney’s deficient performance, his errors are
obvious even from the majority’s description of the record.
Mageno’s defense “put[] its eggs . . . in the ‘knowledge’
basket.” Id. at 24. Despite this theory of the case, her attorney
failed to object when the government suggested and then
unambiguously stated that Mageno knew why Burgos had
been deported, which eviscerated the supposed defense
strategy. Id. at 10. After he failed to object, he still
maintained focus on Mageno’s knowledge in closing
argument. Id. at 24. Shockingly, he then himself misstated
Burgos’s testimony and, according to the majority,
dramatically undermined his own theory of the case. Id. at 25.
The majority assumes, without any record citation, that the
government’s statements made him “launch[] a weak
counterattack,” and “damaged the defense overall.” Id. Then
he failed to object when the government clearly misstated the
evidence by arguing that Burgos testified that Mageno knew
why he had been deported. Id. at 26 (which is accurate in only
one of the five statements).

What the majority overlooks in its description of the trial
is that Mageno’s attorney never objected to the government’s
allegedly harmful statements, and he did not file a motion for
a new trial. He did not appeal to this court on the basis of the
government’s statements. Even after the government raised
the potentially erroneous statements in its answering brief, he
did not file a reply brief, as he was entitled to, to adopt the
argument pointed out by the government. Finally, he did not
raise these prosecutors’ statements at oral argument before
this court. Only when a judge of this panel brought up the
statements did Mageno’s attorney state that the judge raised
a good argument. He did not adopt or specifically enunciate
the legal argument.
 UNITED STATES V. MAGENO 57

The majority reminds us that “[p]rosecutors have a special
responsibility to provide ‘those accused of crime a fair trial.’”
Majority Op. at 29, quoting Kojayan, 8 F.3d at 1323. But
“[t]he government is not responsible for, and hence not able
to prevent, attorney errors that will result in reversal of a
conviction or sentence.” Strickland v. Washington, 466 U.S.
668, 693 (1984).6

V.

The majority is simply wrong. We should not review the
government’s statements from the closing arguments. Even
if we did, we should only review one statement: that Burgos
testified that Mageno knew he was deported because of his
involvement in drug activity. The other statements about
Mageno’s knowledge were fair inferences from the record.
Moreover, even if all of the statements were improper, we

6
The majority and I have a factual disagreement over whether Mageno’s
attorney “introduced” the error, based on our disagreement about whether
the government’s first three statements were improper. Majority Op. at 25
n.14. But the majority does not, and cannot, question the other serious
errors performed by Mageno’s counsel independent of his own erroneous
statements, including his failure to object to the government’s statements,
his failure to file a motion for a new trial, his failure to appeal the
statements to this court, his failure to file a reply brief, and his failure to
prepare to discuss the statements at oral argument.

Regardless of Mageno’s counsel’s performance, I would not reverse
Mageno’s conviction, because “the result of the proceeding would [not]
have been different” in the absence of his errors. Strickland, 466 U.S. at
694. Mageno did not suffer sufficient prejudice that we could determine
she would have been acquitted absent the prosecutorial statements, and
thus did not suffer prejudice from her counsel’s deficient performance. It
is the majority that should agree with me, by “hold[ing] Mageno’s
attorney’s feet to the fire,” given its own recitation of the litany of his
errors and its conclusion that Mageno was prejudiced.
58 UNITED STATES V. MAGENO

still should not reverse because the result of the trial would
have been the same without the statements. “Reversal for
error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public to
ridicule it.” Roger J. Traynor, The Riddle of Harmless Error
50 (1970). Additionally, I am concerned that the negligent
actor most responsible for any mistakes at trial, Mageno’s
own attorney, goes unnamed in the majority’s opinion.

On the actual basis of Mageno’s appeal, her argument that
there was insufficient evidence of her involvement in the
conspiracy, we should affirm, because a reasonable jury could
conclude that Mageno knew that Burgos was dealing drugs
and that her conduct facilitated that conspiracy. United States
v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).

I dissent.