NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10323
Plaintiff - Appellee, D.C. No. 5:11 cr-0589-RMW
v.
MEMORANDUM*
LINDA CHEN MAI,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted August 13, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Linda Chen Mai (“Mai”) appeals her convictions under 21 U.S.C. §§ 610(d),
611(b)(6) for mislabeling pork products. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Mai contends that statements made by the government during closing
argument constitute reversible prosecutorial misconduct. Because Mai did not
object to any of the statements, we review for plain error. United States v.
Tirouda, 394 F.3d 683, 688 (9th Cir. 2005).
1. Mai first contends that the government committed misconduct by
asserting during closing arguments that, after the United States Department of
Agriculture (“USDA”) had suspended inspection services at Mai’s meat processing
plant, “you cannot sell any product, regardless of when it was processed.” The
statutes under which Mai was charged, however, criminalize the improper
placement of a USDA-approved label on meat products. 21 U.S.C. §§ 610(d),
611(b)(6). Under these statutes, it would not have been a violation for Mai to have
sold pork products that had been processed before the USDA suspended
inspections at the plant.
The prosecution has an obligation to avoid misstating the law during closing
arguments, United States v. Artus, 591 F.2d 526, 528 (9th Cir. 1979) (per curiam),
and the statements here clearly were improper. Under the plain error standard,
however, Mai also must show that the error affected her substantial rights. See
United States v. Foster, 711 F.2d 871, 883 (9th Cir. 1983). Under this standard,
Mai must show “a reasonable probability that the result of the proceeding would
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have been different [absent the misconduct] or that it so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” United
States v. Wilkes, 662 F.3d 524, 537 (9th Cir. 2011) (quoting Hein v. Sullivan, 601
F.3d 897, 905 n.4 (9th Cir. 2010)).
Although the misstatement here was significant, the district court corrected
the error shortly thereafter. In response to an inquiry from the jury, the court
clarified that “[a] meat product that has been inspected and has passed inspection
may be made available for sale after suspension unless it has been tagged for
retention.” Such corrective instructions may cure a prosecutor’s misstatement of
the law. United States v. Cardenas-Mendoza, 579 F.3d 1024, 1030 (9th Cir. 2009);
Foster, 711 F.2d at 883. Additionally, the case against Mai was very strong and
included a confession, as well as an abundance of circumstantial evidence. Mai
offered virtually no evidence supporting her alternative theory: that she had sold
only unprocessed pork or pork products processed pre-suspension. Accordingly,
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we conclude that Mai has not shown that the misconduct affected her substantial
rights.1
2. Mai also challenges as reversible misconduct statements made by the
prosecution to the jury describing the case as about a “public health hazard”
affecting “consumers like you.” A prosecutor’s “misleading and inflammatory
arguments” may amount to reversible misconduct. Sechrest v. Ignacio, 549 F.3d
789, 807 (9th Cir. 2008). The statements here, however, were not plainly
improper. Most of the statements Mai challenges appear to have been inadvertent
figures of speech or colloquialisms. See United States v. Carrillo, 16 F.3d 1046,
1050 (9th Cir. 1994) (indicating that misconduct does not occur when a
prosecutor’s misstatements “[have] earmarks of inadvertent mistake”). Even if
they were not inadvertent, the statements do not appear to have been particularly
1
The dissent, at 2, notes that the district court’s note in response to the
jury’s inquiry did not “address the legality of Mai’s acting as a middleman,” which
the dissent defines as “buying and selling raw pork without processing it.” Even if
the district court erred in that regard, it was not plain error. The evidence showed
that Mai purchased 3,000 pounds of raw pork after she was suspended by the
USDA and only 600 pounds of that pork was accounted for on a “middleman”
basis. Thus, any error did not affect Mai’s substantial rights in that there was no
“reasonable probability that the result of the proceeding would have been different
. . . .” Wilkes, 662 F.3d at 537. Indeed, if the jury believed that purchasing meat
during the suspension was illegal, it presumably would not have needed to seek
clarification from the court on whether selling meat processed before the
suspension was illegal. It was undisputed that Mai purchased meat during the
suspension.
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substantial. At most, they gave color to the prosecution’s legal and factual
contentions. We thus reject this argument.2
AFFIRMED.
2
Because we conclude that these statements were not plainly improper,
we do not address whether they affected Mai’s substantial rights.
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FILED
USA v Linda Chen Mai 14-10323
AUG 31 2015
REINHARDT, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would hold that the prosecutor’s blatant misstatement of the law during his
closing argument was not cured and that it prejudiced Mai’s substantial rights. In
concluding otherwise, the majority significantly understates the prosecutor’s
errors.
Mai contended in her closing argument that after suspension she had only
(1) sold pork processed before suspension and (2) acted as a middleman, buying
and selling raw pork without processing it. Both activities were legal even after
suspension. The prosecutor told the jury that they were not: “Even if what [Mai’s
counsel] argued to you is true, that does not equal a not guilty story.” The
prosecutor explained that regardless of when the meat was processed, “if it was
sold after suspension, that’s a violation. You’re not allowed to do anything once
you're suspended.” Likewise the prosecutor told the jury that purchasing meat after
a suspension was in all events illegal. After pulling up an invoice showing Mai
bought raw pork after suspension, the prosecutor stated “you have Linda Mai’s
delivery from Jim’s Wholesale Meats on July 12th, 2010. That is a violation right
there.”
Both statements were “erroneous” or “false” and both were highly
significant, striking at the heart of Mai’s defense. We recently found a
prosecutor’s misstatements of the law during closing arguments were prejudicial
because they undercut “the heart of [the] defense” and were phrased in a way that
“created a significant likelihood that the comments would be ‘viewed [like jury
instructions] as definitive and binding statements of the law.’” Deck v. Jenkins, 768
F.3d 1015, 1025, 1026 (9th Cir. 2014) (quoting Boyde v. California, 494 U.S. 370,
384 (1990)). The same is true here. In these circumstances, if the error is not
cured it will be prejudicial because “[j]urors are not generally equipped to
determine whether a particular theory of conviction submitted to them is contrary
to law¯whether, for example, . . . the action in question fails to come within the
statutory definition of the crime.” Griffin v. United States, 502 U.S. 46, 59 (1991).
In this case, the errors were only partially corrected, at best. The judge’s
note may have clarified the jury’s evident confusion about whether Mai could sell
meat after the suspension that she had processed before it. The note did not,
however, even indirectly address the legality of Mai’s acting as a middleman, let
alone speak to “the specific statement[] of the prosecutor” that buying meat after
the suspension was illegal. United States v. Weatherspoon, 410 F.3d 1142, 1151
(9th Cir. 2005) (quoting United States v. Kerr, 981 F.3d 1050, 1054 (9th Cir.
1992)) (finding plain error because general curative instructions were insufficient).
2
Buying meat after the suspension was not illegal. Cooking it, shredding it, and then
selling it in processed form with the USDA label affixed was. The evidence that
Mai did the latter was circumstantial, except for Mai’s “confession.” The
circumstantial evidence may have been somewhat convincing, but it was far from
overwhelming, especially as it was not Mai’s burden to prove that she had not
illegally sold the meat she purchased, but rather the government’s burden to prove
that she had. Further, given Mai’s limited English skills and the fact that her
interpreter was a USDA agent, her explanation that she misunderstood the
“confession,” is certainly plausible, particularly because she corrected the
“confession” almost immediately. In light of this¯and the likelihood that the jury
took the prosecutor at his word and convicted Mai simply on the basis of her
(uncontested) act of purchasing the meat¯I would conclude that Mai has, even
under the plain error standard, demonstrated prejudice and is entitled to a reversal.
See United States v. Olano, 507 U.S. 725, 735 (1993).
I respectfully dissent.
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