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. ORDER GRANTING
PETITION FOR
REHEARING,
VACATING OPINION
AND AFFIRMING
JUDGMENT OF
CONVICTION
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 May 19, 2015
Before: J. Clifford Wallace, Raymond C. Fisher
and Marsha S. Berzon, Circuit Judges.
Order
2 UNITED STATES V. MAGENO
SUMMARY*
Criminal Law
The panel granted the government’s petition for
rehearing, vacated its prior opinion vacating the defendant’s
conviction, and affirmed the defendant’s conviction for
conspiracy to distribute methamphetamine.
In the prior opinion, the panel vacated the defendant’s
conviction because of what appeared from the record to be
the prosecution’s misstatement of the evidence during closing
arguments. The court reporter’s official transcript has since
been corrected, and shows that no misstatements actually
occurred. This transcription error was first brought to the
panel’s attention in the government’s petition for rehearing.
The panel held that it has authority under Fed. R. App. P.
40 to grant a petition for rehearing for the purpose of
recognizing corrections in the trial transcript raised at this
stage of the proceedings. The panel emphasized that its
holding is limited to the context of mistakes and omissions of
the kind addressed by Fed. R. App. P. 10(e). The panel
further held this case presents extraordinary circumstances
that warranted reaching the transcription error even though it
was raised for the first time in the government’s petition for
rehearing.
The panel affirmed the conviction for the reasons stated in a
previously filed memorandum disposition.
*
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 Plaintiff-Appellee.
ORDER
In our prior opinion in this case, we vacated Nancy
Mageno’s drug conspiracy conviction because of what
appeared from the record to be the prosecution’s
misstatement of the evidence during closing arguments. See
United States v. Mageno, 762 F.3d 933 (9th Cir. 2014). The
court reporter’s official transcript has since been corrected,
and we now know that no misstatements actually occurred.
The government has brought these transcript corrections to
our attention for the first time in a petition for rehearing,
asking us to vacate our prior opinion and affirm Mageno’s
conviction. We hold, first, that we have authority under
Federal Rule of Appellate Procedure 40 to grant a petition for
rehearing for the purpose of recognizing corrections in the
trial transcript raised at this stage of the proceedings and,
second, that this case presents extraordinary circumstances
that warrant doing so. Because Mageno was properly
convicted following a fair trial, vacating her conviction would
not serve the interests of justice. Accordingly, we grant the
government’s petition for rehearing, vacate our prior opinion
and affirm Mageno’s conviction.
4 UNITED STATES V. MAGENO
BACKGROUND
In 2011, a federal grand jury indicted Nancy Mageno on
one count of conspiracy to distribute more than 50 grams of
methamphetamine in violation of 21 U.S.C. § 846 and one
count of distribution of a controlled substance in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2.
The charges against Mageno arose principally from her
role in translating phone calls regarding methamphetamine
transactions for her Spanish-speaking godson, Jesus
Guadalupe (“Virrio”) Felix-Burgos, in 2010. At trial,
Mageno denied knowingly conspiring to distribute
methamphetamine, testifying she had been unaware that her
godson was involved in illegal drugs or that the phone calls
she was translating involved drug transactions.
To help prove Mageno’s knowledge, the government
elicited testimony from Burgos that he had been deported for
drug trafficking three years before the phone calls in question
and, significantly, that Mageno knew the reason for his
deportation:
Q. Well, you were in the United States in
2007, were you not?
A. Yes.
Q. You were living with Ms. Mageno during
that time frame, too, correct?
A. Yes.
Q. How long did you live with her in 2007?
UNITED STATES V. MAGENO 5
A. It was for about a year as well.
Q. And then you had to go back to Mexico,
correct?
A. Yes.
Q. You were deported, right?
A. Yes.
Q. Ms. Mageno knew why you were
deported?
MR. YAMPOLSKY [Mageno’s counsel]:
Objection, calls for speculation.
A. Yes.[1]
THE COURT: If he can answer it, he can
answer it.
[Sidebar held.]
Q. Mr. Burgos, going back to the 2007, the
reason why you were deported was because
you were trafficking in methamphetamine,
isn’t that right?
A. Yes.
1
As we shall explain, this answer was omitted from the court reporter’s
original official trial transcript. The omission was first brought to our
attention in the government’s petition for rehearing.
6 UNITED STATES V. MAGENO
In closing arguments, the government relied in part on
this testimony to establish Mageno’s knowledge. It argued,
for example, that the jury should infer Mageno knew the
phone calls involved drug transactions because, “[b]eginning
in 2007 when Virrio was living with her, he was arrested and
deported for distributing methamphetamine. This is
something Virrio explained to you she knew because he was
living with her, then he comes back.” In the government’s
view, Mageno had to know the phone calls involved illegal
drugs because she “already in her head knew that Virrio, the
person she was translating for, has a history of distributing
methamphetamine.” It argued to the jury that “in 2007, she
already knows. Is it past is prologue? He’s been deported
because he was trafficking methamphetamine while he was
living with her. He testified she knew why he was deported.”2
The jury convicted Mageno on the conspiracy charge and
acquitted her of the distribution charge. The district court
sentenced Mageno to 87 months in prison followed by five
years of supervised release.
Mageno appealed, raising as her sole claim of error that
the evidence against her was insufficient to sustain the
conviction. Assistant United States Attorney Adam Flake,
assigned to draft the government’s answering brief, had not
2
The defense’s closing argument also referred to Burgos’ testimony:
Now, he said on the stand, and I’m not a hundred
percent sure, it’s either one o[f] 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?
UNITED STATES V. MAGENO 7
been present at trial and relied solely on the reporter’s
transcript of the proceedings. While reviewing the trial
transcript, he discovered what appeared to be misstatements
by the trial prosecutors. As noted, the government attorneys
stated in their closing arguments that Burgos had testified that
Mageno knew why he had been deported in 2007. The trial
transcript, however, indicated (incorrectly, we now know)
that, although Burgos had been asked whether Mageno knew
why he had been deported, he had not answered that question.
In consultation with his supervisor, Flake concluded he
should bring these apparent misstatements to the court’s
attention even though Mageno had not raised the issue in her
opening brief. Accordingly, the government argued in its
answering brief:
Although not raised by Mageno, the
Government has discovered that during
closing argument, the prosecutors incorrectly
claimed that Felix-Burgos had testified that
Mageno knew that he had been previously
deported for dealing methamphetamine. The
Government believes its duty of candor
requires it to bring this fact to the Court’s
attention. This mistake does not warrant
reversal, however[,] because the prosecutors’
misstatements were apparently inadvertent,
because Mageno did not object and has not
attempted to show prejudice, because the
district court instructed the jury that the
attorneys’ arguments were not evidence, and
because regardless whether the jury believed
that Mageno knew why Felix-Burgos had
8 UNITED STATES V. MAGENO
been deported, the other evidence against her
amply demonstrated her guilt.
Mageno did not file an optional reply brief, and so did not
address the misstatement-of-the-evidence issue raised by the
government in any of her briefing. We inquired about the
issue at oral argument, however, and at that time Mageno’s
counsel adopted the issue and argued briefly that it warranted
vacating her conviction.3
In August 2014, this panel issued lengthy published
opinions, including a dissent, vacating Mageno’s conviction
based on the (apparent) prosecutorial misstatements that the
government had brought to the court’s attention. See
Mageno, 762 F.3d 933. Although Mageno had not raised the
issue in her opening brief, the court held in the majority
opinion that it had discretion to reach the issue because the
government had sufficiently addressed it in its answering
brief and would not be prejudiced by our doing so. See id. at
939–43 (citing United States v. Ullah, 976 F.2d 509, 514 (9th
Cir. 1992)). The court then concluded that the standard for
plain error was satisfied, holding that 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.” Id. at 945. It further held that “the
government’s misstatements likely prejudiced the outcome of
3
In his prior dissent, however, Judge Wallace maintained that
“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 . . . .” Mageno, 762 F.3d
at 956 (Wallace, J., dissenting). Judge Wallace still adheres to that
position.
UNITED STATES V. MAGENO 9
Mageno’s trial,” and that the “error seriously impeded the
jury’s ability to function as an impartial fact-finder, thereby
affecting the fairness and integrity of judicial proceedings.”
Id. at 947. Accordingly, the court vacated Mageno’s
conviction “so that she may have an untainted shot at
maintaining her innocence without the prosecution’s
damaging misstatements.” Id. at 949. The dissenting
member of the panel would not have reached the
prosecutorial misstatements issue. Because “Mageno did not
object to the alleged prosecutorial misstatements at trial, and
did not argue that the statements prejudiced her in her
appellate brief,” he would have deemed the argument waived.
Id. at 949 (Wallace, J., dissenting). He also disagreed with
the majority’s conclusion that the plain error standard was
satisfied. He would have upheld the conviction because, in
his view, “[o]nly one of the statements was improper,”
“[t]here was so much evidence submitted by the government
at trial that Mageno would have been convicted regardless of
the statements,” “[s]ome of the prejudice Mageno may have
suffered was mitigated by the district court’s curative
instructions, and any misstatements were unintentional.” Id.
In an accompanying unpublished memorandum disposition,
we rejected Mageno’s challenge to the sufficiency of the
evidence. See United States v. Mageno, 584 F. App’x 487
(9th Cir. 2014).
Shortly after we issued those decisions, one of the
government prosecutors who had handled the trial contacted
Elizabeth O. White, Appellate Chief and Assistant United
States Attorney for the District of Nevada, to say that he
distinctly recalled Burgos testifying that Mageno knew why
10 UNITED STATES V. MAGENO
he had been deported.4 He advised White he was certain that
neither he nor the other prosecutor had misstated Burgos’
testimony. In light of the prosecutor’s recollection, the
government sought and obtained an order from the district
court to review the audio recording of Burgos’ testimony.
Mageno did not oppose the motion.
White compared the audio recording to the official
transcript and discovered several material omissions in the
transcript. Most significantly, the audio recording revealed
that Burgos not only had been asked whether Mageno knew
why he was deported but had answered the question
affirmatively. The audio recording showed, therefore, that
the prosecution had not misstated the evidence during closing
arguments, and that our opinion vacating Mageno’s
conviction was based on an erroneous factual premise. In
light of these discoveries, the government asked the district
court to correct the errors in the transcript and certify and
forward a corrected record to this court. See Fed. R. App. P.
10(e). Mageno did not oppose the motion, and it was granted
by the district court.5
4
One of the two government lawyers who handled the trial left the U.S.
Attorney’s Office in 2012, before briefing on this appeal. The other trial
lawyer remains with the Department of Justice in Washington, D.C.
5
Rule 10(e) states:
Correction or Modification of the Record.
(1) If any difference arises about whether the record
truly discloses what occurred in the district court, the
difference must be submitted to and settled by that
court and the record conformed accordingly.
(2) If anything material to either party is omitted from
UNITED STATES V. MAGENO 11
The government then filed a petition for panel rehearing,
asking us to vacate our published opinion and affirm
Mageno’s conviction. See Fed. R. App. P. 40. It argued
rehearing was appropriate because “material errors in the
reporter’s transcript led the government – and, in turn, the
Court – to misapprehend what actually occurred at trial.” It
acknowledged that “these unfortunate consequences for the
Court and the trial attorneys could have been avoided if the
appellate division had consulted with the trial attorneys
before inserting this issue into the appeal,” but it assured us
that “the U.S. Attorney’s Office has instituted new procedures
for reviewing appellate briefs to ensure this type of error will
not happen again.”
or misstated in the record by error or accident, the
omission or misstatement may be corrected and a
supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has
been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the
record must be presented to the court of appeals.
Fed. R. App. P. 10(e). No suggestion has been made that the
government’s Rule 10 motion was untimely. See United States v.
Zichettello, 208 F.3d 72, 97 n.11 (2d Cir. 2000) (“Fed. R. App. P. 10(e)
does not contain a time limitation regarding such a motion.”); United
States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971) (“Under Rule 10(e) it is
clear that the district court may consider a motion to correct the record
even after appeal has been taken.”).
12 UNITED STATES V. MAGENO
We asked Mageno to file a response to the government’s
petition, which she did. In her response, Mageno conceded
that the corrected transcript was accurate and hence that the
prosecution had not misstated the evidence in closing
arguments. Mageno nonetheless argued that her conviction
should be overturned on a new ground not previously raised
in this appeal – that her counsel’s objection to Burgos’
testimony should have been sustained because the
government failed to lay a proper foundation showing how
Burgos knew that Mageno knew why he was deported.
DISCUSSION
The government’s petition for rehearing requires us to
address two questions. We must first determine whether we
have authority under Rule 40 to grant a petition for rehearing
where, as here, we correctly apprehended the record that was
presented to us but, because of an error in the official
transcript, we misapprehended the facts upon which our
opinion was based. We hold that we have such authority.
We must then decide whether we should exercise that
authority in favor of the government under the circumstances
of this case. We conclude that we should. Although our
discretion to recognize transcription errors at this late date
should not be exercised routinely, under the exceptional
circumstances of this case the equities favor doing so. We
therefore grant the petition for rehearing, vacate our prior
opinion and affirm Mageno’s conviction.
I.
We begin by addressing the question of our authority to
grant relief under Rule 40. “A properly drawn petition for
rehearing serves a very limited purpose.” Armster v. U.S.
UNITED STATES V. MAGENO 13
Dist. Court for Cent. Dist. of Cal., 806 F.2d 1347, 1356 (9th
Cir. 1986) (quoting Anderson v. Knox, 300 F.2d 296, 297 (9th
Cir. 1962)) (internal quotation marks omitted). “The petition
must state with particularity each point of law or fact that the
petitioner believes the court has overlooked or
misapprehended . . . .” Fed. R. App. P. 40(a)(2). Our
authority under Rule 40, therefore, extends only to those
situations in which we have “overlooked or misapprehended”
a “point of law or fact.” Id.
We have not yet addressed whether this authority exists
where, as here, we correctly apprehended the record as it was
presented to us, but, because the record was incorrect, we
misapprehended the actual facts upon which our decision was
based. We now hold that it does. First, this conclusion is
consistent with the plain language of the rule. Rule 40
applies when we have “misapprehended” a “point of . . .
fact.” Id. That unquestionably occurred here. When we
issued our opinion, we believed that Burgos had not testified
that Mageno knew the reason he was deported and that the
prosecution therefore had misstated the evidence in its
closing arguments. We now know that each of those
conclusions about what occurred at trial was incorrect.
Second, our conclusion that Rule 40 applies to a
misapprehension of the actual facts, not merely a
misapprehension of the record presented to us, is consistent
with our case law. Petitions for rehearing, we have
explained, “serve the limited purpose of enabling a panel to
correct an error in its decision.” Armster, 806 F.2d at 1355
n.9 (emphasis added). An error can as easily arise from a
correct understanding of an incorrect transcript, as occurred
here, as it can from an incorrect understanding of a correct
transcript. Either scenario – misinterpreting an accurate
14 UNITED STATES V. MAGENO
record or relying on an inaccurate one – produces the same
result: an error in our decision. Under Armster, rehearing is
appropriate when the panel has not “properly considered all
relevant information in rendering its decision.” 806 F.2d at
1356. That plainly occurred here.
In sum, we hold that we have authority under Rule 40 to
grant a petition for rehearing where, as here, we correctly
apprehended the record that was presented to us but, because
of an error in the official transcript, misapprehended the
actual facts upon which our opinion was based. We
emphasize that our holding in this regard is limited to the
context of mistakes and omissions of the kind addressed by
Rule 10(e). It remains true that a petition for rehearing is not
a vehicle for a party to “study and reargue his case anew.”
Anderson, 300 F.2d at 297.6
II.
We next address whether we should exercise this
authority favorably to the government under the
circumstances of this case. “As a general rule, we will not
consider issues that a party raises for the first time in a
petition for rehearing.” Varney v. Sec’y of Health & Human
6
Thus, for example, a panel cannot be said to overlook or misapprehend
facts that occurred after its initial decision, even if those later events prove
the assumptions on which an opinion was based to have been incorrect.
See Armster, 806 F.2d at 1356–57. Similarly, parties may not seek
rehearing based on evidence that was not previously presented to the
district court and the panel. Cf. Morrison v. Hall 261 F.3d 896, 900 n.4
(9th Cir. 2001) (“Rule 10(e) cannot be used to add to or enlarge the record
on appeal to include material which was not before the district court.”
(quoting United States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir. 1979))
(internal quotation marks omitted)).
UNITED STATES V. MAGENO 15
Servs., 859 F.2d 1396, 1397 (9th Cir. 1988). “We recognize
an exception, however, for cases involving extraordinary
circumstances.” Id. We hold that the extraordinary
circumstances standard is satisfied here.
First and most significantly, recognizing the error serves
the interests of justice. We now know that Mageno’s
conviction was properly obtained following a fair trial, and
not by the government’s misstatement of the evidence. The
principle of finality serves important interests, but there are
times when they are outweighed by the interest in achieving
a just result. See Henry v. Ryan, 748 F.3d 940, 942 (9th Cir.)
(Fisher, J., dissenting) (“Although there may be times when
getting the right answer should yield to the interest in finality,
this is not one of them.”), reh’g en banc granted, 766 F.3d
1059 (9th Cir.), and on reh’g en banc, 775 F.3d 1112 (9th
Cir. 2014). The extraordinary circumstances requirement
ensures that the principles underlying waiver are honored. In
addition, before issuance of our mandate, the interest in
finality is not absolute. See United States v. Foumai,
910 F.2d 617, 620 (9th Cir. 1990) (“A court of appeals may
modify or revoke its judgment at any time prior to issuance
of the mandate, sua sponte or by motion of the parties. Thus,
finality of an appellate order hinges on the mandate, as does
a defendant’s expectation of finality.”).7
Second, in a typical case, raising a transcription error at
this stage of the proceedings is likely to substantially
prejudice the opposing party, who has expended considerable
resources in raising and presenting her arguments to the
7
Even after the mandate has issued, we may recall it in extraordinary
circumstances. See United States v. Bd. of Directors of Truckee-Carson
Irr. Dist., 723 F.3d 1029, 1034 (9th Cir. 2013).
16 UNITED STATES V. MAGENO
courts. Under the unusual facts of this case, however,
Mageno did nothing to raise or present the prosecutorial
misstatements argument, either to the district court or to this
court. All the work on the issue was performed by the
government and this court. Mageno, therefore, would not be
unfairly prejudiced by our reaching this issue.
Third, in a typical case, recognizing a transcription error
at this juncture may reward the petitioning party for its lack
of diligence. Even here, the government certainly could have
– and perhaps should have – discovered the error sooner, as
it concedes. Arguably, the proper course would have been for
the appellate government attorneys to check the recording
before filing their brief, or, at the very least, to contact trial
counsel once they identified the apparent error in closing
argument.8 But again, this is an extraordinary case, not a
typical one. In this case, it was the government, not Mageno,
8
We do not mean to suggest that appellate attorneys generally cannot
rely on the accuracy of transcripts. Cf. 28 U.S.C. § 753(b) (“The
transcript in any case certified by the reporter or other individual
designated to produce the record shall be deemed prima facie a correct
statement of the testimony taken and proceedings had.”). But here, further
inquiry was strongly advisable. In light of the statements in closing
argument by two different prosecutors, both present during the testimony,
that Burgos said Mageno did know why he was deported, it was at least
somewhat unlikely that, as the transcript indicated, Burgos did not answer
the question posed as to whether she did. Appellate counsel therefore
should have taken steps to assure the accuracy of the transcript before
making affirmative representations regarding what happened at trial and
implicating the trial prosecutors in either incompetence or misconduct.
Although one of the government’s trial lawyers left the U.S. Attorney’s
Office before briefing on this appeal, the other lawyer remained with the
Department of Justice in Washington, apparently available at all times to
consult with appellate counsel. Were such consultation for some reason
not possible, additional steps, including listening to the tapes, would have
been warranted.
UNITED STATES V. MAGENO 17
that initially brought the perceived prosecutorial error to this
court’s attention in the first place – a showing of laudable
integrity that counterbalances the government’s troubling
lack of diligence in discovering the transcription error.
Where, as here, “we are convinced that the . . . failure to
present the issue at the proper time was inadvertent or
negligent rather than willful,” Escobar Ruiz v. INS, 813 F.2d
283, 286 (9th Cir. 1987), we have discretion to grant relief.
See, e.g., United States v. Geyler, 949 F.2d 280, 282 (9th Cir.
1991); Varney, 859 F.2d at 1398.
Finally, we recognize that vacating our opinion at this
point will result in a significant waste of judicial resources; if
the government had acted more diligently, “much controversy
and expense could have been avoided.” Schanen v. U.S.
Dep’t of Justice, 798 F.2d 348, 350 (9th Cir. 1985). We are
not persuaded, however, that this consideration outweighs the
interest in arriving at a just result. Denying the relief the
government seeks, moreover, will do nothing to conserve
future judicial resources in this case. On the contrary, it will
require a second trial and potentially a second appeal, even
though, we now know, the first trial was properly and fairly
conducted. We recognize that a practice of routinely
allowing such tardy corrections to the record would waste
judicial resources in future cases, but are satisfied that today’s
narrow holding, limited to the extraordinary circumstances
presented in this case, will adequately encourage parties to
timely review the accuracy of transcripts when the
circumstances, as here, suggest the need to do so.
We conclude, therefore, that this is an extraordinary case
in which we should consider an issue raised for the first time
in a petition for rehearing. Our conclusion is consistent with
relevant authority from other circuits. Indeed, the most
18 UNITED STATES V. MAGENO
analogous case we have found, United States v. Freeman,
598 F.2d 306 (D.C. Cir. 1979), granted similar relief under
almost identical circumstances. And although the Second
Circuit denied similar relief in United States v. Quiroz, 22
F.3d 489 (2d Cir. 1994), it did so under plainly
distinguishable facts.
In Freeman, the D.C. Circuit published an opinion
reversing the defendant’s conviction on the ground that the
prosecutor had improperly referred to the defendant’s
“background” during closing arguments. See Freeman,
598 F.2d at 307. After that opinion was issued, the
government argued for the first time that the trial transcript
was in error and that the reference to the defendant’s
background never occurred. See id. at 307–08. An expert’s
review of the court reporter’s audio tape bore out the
government’s contention, and the district court revised the
transcript accordingly. See id. at 308. The D.C. Circuit,
relying on the revised transcript, vacated its previous
judgment and affirmed the defendant’s conviction. See id. at
309.
In Quiroz, the Second Circuit vacated the defendant’s
conviction on the ground that his postarrest statements to
government agents were obtained in violation of Miranda v.
Arizona, 384 U.S. 436 (1966), and thus should have been
suppressed. See Quiroz, 22 F.3d at 489–90. After the court
issued its opinion, the district judge alerted the parties to her
recollection that the defendant had not objected to the
magistrate judge’s decision recommending the denial of his
motion to suppress the statements, even though the official
transcript showed the defendant had objected. See id. at 490.
The district judge’s recollection was confirmed by the audio
tapes of the proceedings. See id. The transcript was
UNITED STATES V. MAGENO 19
corrected and the government then petitioned for rehearing,
asking the Second Circuit to vacate its opinion and affirm the
defendant’s conviction on the ground that he had waived
objection to the admission of his postarrest statements by
failing to object to the magistrate judge’s recommendation.
See id. The Second Circuit denied the government’s request.
See id. Because the government had failed to raise the issue
sooner, the court would not consider the issue “unless
manifest injustice otherwise would result.” Id. at 490–91
(internal quotation marks omitted). This standard was not
satisfied:
Nor has the government articulated a
persuasive basis for finding that a refusal on
our part to accept the government’s belated
claim of waiver would result in manifest
injustice. Since we concluded on this appeal
that the government violated Quiroz’s
constitutional right to counsel and that the
admission of the unconstitutionally obtained
statements was not harmless error, the
manifest injustice at this stage would be to
relieve the government of its waiver in order
to relieve it of its violation of Quiroz’s
constitutional rights.
Id. at 491.9
9
The court also declined to excuse the government’s waiver on the
theories that it (1) had new attorneys on appeal and (2) had relied on the
erroneous trial transcript. The court rejected the first argument because
trial counsel had participated in the appeal. See Quiroz, 22 F.3d at 491.
It rejected the second argument because government counsel had been
present at the proceedings at which the defendant had failed to object, and
hence knew or should have known about the transcription error earlier.
20 UNITED STATES V. MAGENO
Although we reach a different conclusion from Quiroz,
we do so on quite different facts. Most significantly,
recognizing the transcription error in Quiroz would have
meant affirming a conviction that was wrongfully obtained,
in violation of the defendant’s constitutional rights. The
Second Circuit emphasized that “the manifest injustice at this
stage would be to relieve the government of its waiver in
order to relieve it of its violation of Quiroz’s constitutional
rights.” Id. Here, by contrast, recognizing the transcription
error means affirming a conviction that was justly obtained;
to overturn a conviction that we now know to have been
entirely proper would constitute manifest injustice. Granting
relief in Quiroz also would have substantially prejudiced the
defendant, who had devoted substantial time and resources to
raising and litigating the merits of his Miranda claim before
the government’s eleventh-hour assertion of waiver. Here, by
contrast, Mageno made no effort to raise or litigate the
prosecutorial misstatement issue (beyond, in the previous
majority’s view, briefly adopting the issue at oral argument),
and so would not be unfairly prejudiced by our granting
relief. Finally, although the government displayed lack of
diligence in both cases, its lack of diligence here is partially
mitigated by its commendable conduct in identifying and
bringing the perceived prosecutorial error to the court’s
attention in the first place, a consideration absent in Quiroz.
For these reasons, there is no conflict between our decision
here and the Second Circuit’s decision in Quiroz.
In sum, we hold that the extraordinary circumstances
standard is satisfied. We exercise our discretion under Rule
40 to address the transcription error raised by the government
for the first time in its petition for rehearing. Because the
See id.
UNITED STATES V. MAGENO 21
corrected transcript shows that the prosecutorial
misstatements did not occur, we grant the petition for
rehearing and vacate our previously published opinion. In
addition, we take this opportunity to correct our strong – and,
we now know, unfounded – criticism of the lawyers involved
in Mageno’s trial. The majority opinion described the
prosecutors’ statements as “exceedingly reckless,” Mageno,
762 F.3d at 948, and the dissent described Mageno’s trial
counsel as having performed deficiently by failing to object
to the government’s closing arguments, see id. at 961
(Wallace, J., dissenting). We now know that those
characterizations are inaccurate because the government
prosecutors did not in fact misstate the evidence during
closing arguments.
III.
As stated earlier, Mageno argues for the first time in her
response to the government’s petition for rehearing that we
should overturn her conviction on the ground that Burgos
should not have been permitted to testify that she knew why
he had been deported without the prosecution laying a
sufficient foundation to establish how he knew of her
knowledge. Mageno, however, offers no explanation for
failing to raise this issue in her opening brief. She does not
argue, for example, that she would have presented the
argument but for the erroneous transcript. Accordingly, we
are unable to conclude that there are extraordinary
circumstances that would warrant our reaching the issue. See
Varney, 859 F.2d at 1397.
Furthermore, even if the issue were properly before us,
we would reject Mageno’s argument on the merits. “We
review a district court’s finding that evidence is supported by
22 UNITED STATES V. MAGENO
a proper foundation for an abuse of discretion.” United States
v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). Here, just prior
to saying that Mageno knew why he was deported, Burgos
testified that she was his godmother and that he lived with her
for a year prior to his deportation. Although the issue of how
exactly Burgos purported to know that Mageno knew why he
was deported would have been “a fair subject for a reasonable
cross-examination,” the district court did not abuse its
discretion in concluding that Burgos’ prior testimony “laid a
sufficient foundation for this relevant evidence to be
admissible.” United States v. Diaz-Lopez, 625 F.3d 1198,
1200 (9th Cir. 2010).
CONCLUSION
We grant the government’s petition for rehearing. We
vacate our previously published opinion, Mageno, 762 F.3d
933. We affirm Mageno’s conviction for the reasons stated
in our previously filed memorandum disposition, Mageno,
584 F. App’x 487.
PETITION FOR REHEARING GRANTED;
OPINION VACATED; JUDGMENT OF CONVICTION
AFFIRMED.