                           NOT FOR PUBLICATION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


                                          2
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,




                                           3
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.
                                            4
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.
                                          5
                                                                           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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