Argued and Submitted, San Francisco, California:
September 10, 2013.
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:11-cr-00048-JCM-CWH-7. James C. Mahan, District Judge, Presiding.
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 whet 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.
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.
Before: J. Clifford Wallace, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.
ORDER GRANTING PETITION FOR REHEARING, VACATING OPINION AND AFFIRMING JUDGMENT OF CONVICTION
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.
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?
Q. You were living with Ms. Mageno during that time frame, too, correct?
Q. How long did you live with her in 2007?
A. It was for about a year as well.
Q. And then you had to go back to ...