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Will a prosecutor's misstatement of facts at trial cause a reversal of a conviction?


Yes, it probably will. Although closing arguments during a trial are a time of persuasion, a prosecutor cannot misstate facts and encourage a jury to convict you on the basis of evidence not presented at trial. I have seen this happen as a Jacksonville criminal attorney. One would think that a prosecutor would never do such a thing, but this is exactly what happened in the case of U.S. v. Mageno. 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.

At Mageno's trial, the prosecutors introduced five intercepted phone calls in which Mageno acted as a translator. Things like the quality of the drugs, shipment times, meetings, price and the like were translated. Testifying in her own defense, Mageno maintained that she did not know the conversations were about drugs, but thought they were about her godson's jobs as a day laborer and the quality of his work.

During closing arguments (in federal court, the prosecutors get to go first and then, after the defense lawyer, they get to go again) the prosecutors argued that Mageno knew that her godson had been deported for drug trafficking, and so must have known the calls she translated related to drug trafficking. But there was no testimony that Mageno knew that her godson had been deported or why. This line of argument was repeated by the prosecutors several times in both of their summations. Incredibly, Mageno's defense lawyer did not object to theses misstatements of fact by the prosecutor.

A jury convicted Mageno and the court sentenced her to 87 months in prison.

The Court of Appeals for the Ninth Circuit reversed Mageno's conviction. The Court ruled that there was "plain error" involving prosecutorial conduct and that "the error seriously affects the fairness, integrity or public reputation of the judicial proceedings". The Court went on to note that "criminal defendants have a constitutional right not to be convicted except on the basis of evidence adduced at trial" and that prosecutors may make reasonable inferences from the evidence presented, but "have an affirmative obligation to avoid making statements of fact not supported by proper evidence". In this instance, the Court noted that the prosecutors "misstated important evidence and did so repeatedly". As a result, the improper conduct tainted the verdict and deprived her of a fair trial.

Lesson Learned:

First off, it's a really bad idea to translate drug deals for other people. You will be indicted, just like Ms. Mageno, who got 87 months (that's more than 5 years!) just for acting as a translator. And clearly, the jury did not believe that she didn't know what was going on. But lucky for her, the prosecutors got carried away and misstated the facts during their closing arguments. Mageno's lawyer should have objected when this happened-usually, if your lawyer doesn't object, the issue is waived. But here, a wise appeals court realized that Mageno's rights were so violated that a new trial was in order. While courts often tell jurors that closing arguments are not evidence, the arguments made are powerful in their ability to convince. Maybe Ms. Mageno will get lucky the second time around and a new jury will acquit her.

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