United States v. Nancy Mageno , 584 F. App'x 487 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10474
Plaintiff - Appellee, D.C. No. 2:11-cr-00048-JCM-
CWH-7
v.
NANCY MAGENO, MEMORANDUM*
Defendant - Appellant.
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
Before: WALLACE, FISHER, and BERZON, Circuit Judges.
Nancy Mageno appeals her conviction for conspiring to distribute at least
fifty grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and 846. She contends that there was insufficient evidence at
trial to support her conviction. Although we reverse her conviction for other
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reasons stated in a concurrently filed opinion and remand, we address her
sufficiency of the evidence challenge here. We conclude that the evidence was
sufficient to support her conviction. The facts are known to the parties, and we
repeat them only as necessary.
There was more than sufficient evidence to prove the existence of the
underlying conspiracy in this case. The government agent testified to the scope of
the conspiracy, which stretched from Billings, Montana, to Las Vegas, Nevada.
During closing argument, Mageno acknowledged the government proved a
conspiracy. Mageno insists, however, that there was insufficient evidence to prove
that she participated in the conspiracy and had the requisite intent to be part of the
conspiracy.
“Once the existence of a conspiracy is established, evidence which
establishes beyond a reasonable doubt that a defendant is even slightly connected
with the conspiracy is sufficient to convict.” United States v. Corona-Verbera, 509
F.3d 1105, 1117 (9th Cir. 2007) (quoting United States v. Boone, 951 F.2d 1526,
1543 (9th Cir. 1991)). We “consider the evidence presented at trial in the light
most favorable” to the jury’s verdict, and will deem the evidence sufficient if it
allowed “any rational trier of fact” to find Mageno guilty of knowing participation
in this drug conspiracy. United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis
omitted).
The evidence at trial showed that Mageno translated telephone calls,
including calls regarding drug transactions, between her godson, other members of
the conspiracy, and buyers of the drugs the conspiracy sold. A rational jury could
have considered Mageno’s translations of her godson’s phone calls to be evidence
that she knowingly participated in the drug conspiracy led by her godson and aided
the criminal enterprise. Though her actions were susceptible to an innocent
explanation, which she offered through her own testimony and Burgos’s testimony,
the jury was entitled to find Mageno and Burgos not credible and to disregard their
testimony. Moreover, in one of the recorded phone calls, Mageno tells the caller
that she cannot share information with him “over the phone,” which the jury could
have interpreted as showing Mageno’s consciousness of wrongdoing. We
conclude that a rational trier of fact could find this evidence sufficient to establish
Mageno’s knowledge of, and intent to participate in, the conspiracy.
REVERSED AND REMANDED.