
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1020                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                PATIENCE O. UDECHUKWU,                                Defendant, Appellant.                                _____________________        No. 93-1081                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                PATIENCE O. UDECHUKWU,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                            _____________                                 ____________________            Rachel Brill for Patience Udechukwu.            ____________            Joseph  Frattallone  Marti,  Assistant  U.S. Attorney,  with  whom            __________________________   ________________________        Guillermo Gil,  United States Attorney,  and Jose A.  Quiles Espinosa,        _____________                                ________________________        Senior Litigation Counsel, were on brief for the United States.                                 ____________________                                  December 22, 1993                                 ____________________               COFFIN,  Senior Circuit  Judge.    These  are  cross-appeals                        _____________________          arising from the conviction of defendant Patience O. Udechukwu, a          Nigerian  citizen  and U.S.  resident,  for serving  as  a heroin          courier  from Aruba  to the  United  States, in  violation of  21          U.S.C.     841(a)(1)  (possession of  controlled substances  with          intent  to distribute),  952(a)  (importing such  substances into          U.S.  customs territory), and  955 (possession on  an aircraft of          controlled substances not listed in the cargo manifest).                 Defendant's  principal   claims  on  appeal  are   that  the          government  improperly  failed  to disclose  the  results  of its          investigation  into  information  she  provided about  her  Aruba          source  of supply,  and that  the  prosecutor's closing  argument          deliberately  suggested the contrary  of the  facts known  to the          government.     The  government  appeals  the  sentence  imposed,          claiming that the court lacked authority  to depart downward from          the  applicable minimum  mandatory sentence  of  60 months  to 41          months in the  absence of a prosecution motion  requesting such a          departure.                Since we conclude that the  conviction must be set aside and          a new trial granted, we do not reach the government's appeal.                                  Defendant's Arrest                                  __________________               On June 26, 1992, defendant was the last to leave flight 627          after its  arrival in  San  Juan, Puerto  Rico,  from Aruba.    A          customs  inspector, having  asked  for  and received  defendant's          Customs  Declaration  Card,  proceeded  with   an  inspection  of          defendant's luggage  and person.   Although  nothing unusual  was                                         -3-          revealed  by the  inspection, the  inspector  became increasingly          suspicious because of defendant's nervous demeanor, her statement          that she had  just returned from visiting her boyfriend (although          her  passport  revealed  her  married   status),  her  subsequent          statement that she  did not know the whereabouts  of her husband,          and her professed ignorance of her  ticket's scheduled layover in          Chicago.               A  computer  check  revealed no  "intelligence  lookouts" or          criminal  involvements recorded in  defendant's name and  a "pat-          down"  authorized by the inspector's supervisor also had negative          results.   Then,  on  suspicion that  defendant was  an "internal          swallower,"    a  customs  special  agent,  Ana  Rolon,  obtained          defendant's consent to an x-ray.  She was then taken to a medical          center.    As she  disrobed,  she  was  observed putting  in  her          clothing an object which was soon seized by agent Rolon, observed          to be a round pellet wrapped in  electrical tape inside a condom,          then  field tested  and shown  to be  heroin.   Meanwhile, x-rays          revealed three foreign  bodies in defendant's rectum.   Defendant          was arrested  as soon  as the field-test  results were  known and          later  expelled the  three  foreign objects,  which proved  to be          similar pellets  of heroin powder.   A fifth pellet was  found in          the  automobile that transported defendant to the medical center.          The total quantity of heroin recovered was 395 grams.                              Defendant's Duress Defense                              __________________________               As  the  above   scenario  suggests,  the  objective   facts          concerning defendant's  possession and  importation were  clearly                                         -4-          established.  Defendant's  defense was that she  had been coerced          into her role as a courier by the man she had visited in Aruba.                 Immediately  after her arrest,  late on a  Friday afternoon,          defendant was brought  before a U.S. magistrate judge.   When she          was told  there would be  no detention hearing until  Monday, she          said that Monday  would be too late  and that she needed  to talk          with someone right away.   The magistrate judge then undertook to          obtain counsel for appellant, and succeeded in reaching Assistant          Federal Public Defender Brill, who has represented appellant ever          since.  After  talking with appellant, Brill  told the magistrate          judge  that the  source  of the  drugs was  in Aruba,  that their          destination was Chicago,  and that appellant wanted  to cooperate          with the government and make  a controlled delivery in Chicago on          the following day, June 27, since the prospective recipient might          still be expecting a phone call from Udechukwu.                  In  following up on  her client's offer,  attorney Brill was          referred by  a customs supervisor  to an assistant  United States          attorney.  The government attorney proved to be unavailable  over          the weekend, however, and no  controlled delivery took place.  On          Monday, June 29, appellant was debriefed by agents Rolon and Baez          in  counsel Brill's  presence.   Contemporaneous  notes taken  by          agent   Baez  were  apparently   the  basis  for   a  "Report  of          Investigation" issued  some two months  later, on August  25, ten          days before the commencement of trial.                According to the report, appellant told the agents of a long          acquaintance with a fellow Nigerian, whose name was then recorded                                         -5-          as Michael Mouhma, who had lived with appellant and her family in          1982 for six  months.  Michael had  returned for a visit  in 1988          but,  for some  untold reason,  had  his visa  canceled in  1992.          Michael recently had called appellant  from Aruba, asking her  to          come and threatening  that "it would only  take one call to  hurt          her  and her kids if she did not  come . . . ."  Defendant bought          her air ticket, using her Visa card.  In Aruba Michael instructed          her to take the contraband to an individual  in Chicago who could          be reached on a certain beeper number;  he would buy her a return          trip ticket and  give her the money for Michael.   Michael forced          her to carry the contraband in her vagina and rectum, telling her          that  her  husband had  been  arrested  in  Mexico in  1989  when          carrying drugs from Aruba because he did  not follow instructions          to carry  the contraband  internally.   Defendant  had given  the          phone number of  Michael's Aruba hotel room to agent Rolon at the          time of her arrest.               At trial, defendant  expanded on this summary.   She told of          her husband's effort  in 1989 to  assist bringing Nigerians  into          the  United  States,  which  she believed  had  resulted  in  his          incarceration in Mexico since that time.  In his recent call from          Aruba,  Michael proposed  that she  join him  in a  visit to  her          husband.   She was afraid  to travel alone  to Mexico  and, after          talking with  her children, bought a ticket for $1,400.  When she          arrived in Aruba, Michael met her, took  her to a hotel, took her          passport, "green card,"  and room key,  and later told  her of  a          change in plans.  Instead of going immediately to Mexico, she was                                         -6-          to  carry some  packages  for  him to  Chicago.   To  ensure  her          compliance, he threatened  that he knew Mafia people  and that it          would take only  a phone  call to  "get action."   He knew  where          defendant  lived, where she  worked, where  her children  went to          school.  She  felt she could not  escape and the hotel  phone did          not  work.   Michael finally  assisted in  inserting some  of the          pellets.   The day  after she  was apprehended  in San Juan,  she          called a friend  in San Diego, told her  about Michael's threats,          and  arranged to have her  seven children cared  for by the local          Nigerian community.                               What the Government Knew                               ________________________               Defendant's duress defense was closely tied to her counsel's          efforts  to  obtain  evidence  from  the  government  that  would          corroborate  her account  of what  had happened.   In particular,          defendant sought corroboration of  her identification of  Michael          as the source of the drugs she had carried.  Although she did not          know of the  extent of Michael's involvement  in drug trafficking          until  after  her trial,  she  argues that  the  government knew,          before trial, that Michael Mouma (his correct surname) had been a          drug  trafficker and government target for  several years.  Since          the issue of government knowledge  is critical to this appeal, we          summarize the record.               1.  Before trial.    From  the  beginning,  defense  counsel                   ____________          stressed defendant's willingness to cooperate.  On the day of her          arrest,  June  26,  counsel had  conveyed  defendant's  desire to          participate in a controlled delivery  in Chicago.  At defendant's                                         -7-          debriefing on  June 29, she  gave to the arresting  officials the          name of her source, which was transcribed as Michael Mouhma.  The          agents already had  seized a piece of paper  with Michael's Aruba          hotel room telephone number.  In  a letter dated July 2,  defense          counsel  had written  the prosecutor  of  her conversations  with          defendant, closing with  a request to be  kept up to date  "as to          any further developments."                Trial was scheduled  for September 4.  On  August 4, defense          counsel moved for  the production of  any exculpatory and  Jencks          Act  material, see  18 U.S.C.    3500;  on August  28, the  court                         ___          granted the requests.                 2. At trial.   On September 4,  the first day of  trial, the                  ________          prosecution delivered  to defendant a  "Report of  Investigation"          that had been prepared on August 25.  This report referred to "an          individual later identified as Michael MOUHMA (MICHAEL)," related          defendant's account  of her  being threatened,  but contained  no          further information about Michael.               Upon  being  pressed at  trial  for what,  if  anything, the          government  had learned from  information given it  by defendant,          customs agent Rolon testified:                    The name  -- the  name that she  gave me  was only               Michael.  She just  gave me and she wrote in  the piece               of paper what she thought [] was his last  name.  Okay?               With what she  gave me I find nothing,  but based on my               experience  I started digging  into and looking  for it               with  what I  have, and  I started  like matching  some               facts . . . .                                        * * *                    I have --  we started with the information  that I               received  based on all the  documents that we find, the               numbers, this and that on the  -- on a person that  has               been  detained.   I keep  a copy  and start  doing some                                         -8-               investigation  as to  who it  belongs,  et cetera,  the               subscribe -- the telephone  subscriber. . . .  It takes               time because I  depend on different agencies,  and some               information is --  it's protected by the .  . . privacy               act.          As  a result of  defendant's information, agent  Rolon said, "the          other name help[ed]  in a way to  identify that there is  another          association or organization which involves . . . the source . . .          in Aruba."               3.  Post trial.   After  trial, on  September 18,  defendant                   __________          moved for the production  of any rough notes made  by agent Rolon          relating to  the "ongoing  investigation" she  had alluded  to in          testimony.  The government's written reply stated that only agent          Baez had made notes at the debriefing, which were then submitted,          revealing  nothing  differing  in substance  from  the  August 25          report.  The government added:               Let the  record be  clear in  that defendant's  limited               cooperation has NOT resulted in any  new investigation.               What little she was willing to offer was relayed by S/A               Ana Rolon to  an off-district agency which  ALREADY had               an ongoing  investigation  into  the  relevant  subject               matter at  the time  defendant was  arrested in  Puerto               Rico.               4. Oral argument on appeal.  At oral argument before us, the                  _______________________          prosecutor  stressed  that  the  cooperation  of  defendant   was          limited, that  the last name  of her source had  been misspelled,          but that at some point he had been tracked down.   The prosecutor          acknowledged that  not only had  Michael been identified,  but he          had been  a target since  1988.  Although the  prosecutor further          argued that this fact was made known to the defense before trial,                                         -9-          he referred  to a page in the record that contains no information          about Michael's known relationship to the drug trade.                          The Prosecution's Closing Argument                          __________________________________               Against  this  background  of  non-disclosure  of  not  only          Michael Mouma's  existence but of  his known prominence  for some          four  years  as  a  targeted  drug  trafficker,  we  examine  the          prosecution's closing argument.   In so doing, we  stress that we          specifically  put to  one  side  defendant's  argument  that  the          government  had the duty to follow up with a prompt and energetic          investigation on the basis of the  information given by her.  How          the government chooses to invest its resources is a matter solely          of its own concern.               But if the government does  find that information given by a          defendant proves to  be accurate, this is of  significance to the          defense  and   its  interest  in  strengthening  the  defendant's          credibility.    In this  case the  fact that  there was  indeed a          Michael  in  Aruba with  a  surname  strikingly similar  to  that          reported   by  defendant  would   have  given  some   support  to          defendant's story.  And the  fact that this person had long  been          known  as a drug trafficker would  have enhanced considerably the          believability of defendant's story of being threatened by someone          who had the  capacity to make good  on his threats.   Whether the          government's failure  to disclose  this credibility-strengthening          information could  be said  to be reversible  error, we  need not          decide.   We  have  no  doubt,  however,  that  the  prosecutor's          persistent theme in closing argument suggesting  the nonexistence                                         -10-          of  this  information  --  and  even the  opposite  of  what  the          government knew -- did fatally taint the trial.               The prosecutor's closing argument began by raising doubts as          to  defendant's story, referring  to Michael in  skeptical terms.          The prosecutor noted defendant's plan to go to Aruba, not Mexico,          "to meet  with this person  she calls Michael."   He subsequently          made reference to "this man, whomever he -- he is which she calls          Michael,  [who]  was  indeed  her   boyfriend."    And  he  again          implicitly questioned  Michael's existence  when commenting  upon          her claim that  she did not learn  of any threat until  after she          reached Aruba and "was advised by this alleged Michael that there          was a threat  against her children."  Innuendo  then escalated to          contradiction.    After  challenging defendant's  credibility  by          pointing out how long it had  taken for her to tell anyone  about          Michael's  threats against  her children,  the  prosecutor noted,          "One  more thing which you need to keep  in mind as you listen to          defendant's argument and that is whether this Michael in Aruba is          really a drug  -- whether he really exists,  whether there really          is a drug source besides the defendant."               At this  point defense counsel  objected.  She  argued that,          while  foreclosed   for  confidentiality   reasons  from   asking          questions   about  the   government's   investigation  into   the          information  provided by  defendant, "I  do not believe  that the          government should now be able  to argue that that information has          led to nowhere or that it is meaningless and that  something else          was the  truth."  In  response, the prosecutor explained  that he                                         -11-          was  pointing to  the  unlikelihood that  "this  guy" would  send          defendant to  Chicago with no  round trip  ticket or  information          about how much  money was supposed  to be returned  to him.   The          court allowed  the government to  argue that it would  strain the          imagination to accept that "the guy" in Aruba entrusted defendant          with  a  quarter  million   dollars  worth  of  heroin   with  no          instructions concerning  how much  money she was  to bring  back.          Not being content with this thrust, the prosecution added a final          sally  in rebuttal by  asserting that defendant's  children could          not have been in trouble or she would have reacted sooner: "[s]he          didn't want  to stop Michael  or whomever his --  or whatever his          name is.  She wanted to stop us from catching her."               Most  of this was  legitimate argument.   The inferences and          the direct challenge to the  existence of a source named Michael,          however,  when the  prosecution had  unearthed  evidence that  he          existed and was a prominent dealer in narcotics, is indefensible.          Here  we find  a  kind of  double-acting  prosecutorial error:  a          failure to communicate salient information, which, under Brady v.                                                                   _____          Maryland, 373  U.S. 83 (1963),  and Giglio v. United  States, 405          ________                            ______    ______________          U.S.  150 (1972),  should  be  disclosed to  the  defense, and  a          deliberate insinuation that the truth is  to the contrary.  As we          pointed out  in United States  v. Smith, 982  F.2d 681,  683 (1st                          _____________     _____          Cir. 1993),  "it [is] not improper  to urge the  jury to evaluate          the plausibility of  the justification  defense in  light of  the          other  evidence  (and the  lack  thereof),"  but  "it is  plainly          improper  for a  prosecutor  to imply  reliance  on knowledge  or                                         -12-          evidence not available to the jury."  It is all the more improper          to  imply reliance  on a  fact that  the prosecutor  knows to  be          untrue, or  to question the existence of  someone who is known by          the prosecution to exist.               In United  States v. Ingraldi,  793 F.2d 408, 416  (1st Cir.                  __________________________          1986), we enunciated the following five-part test:               In deciding whether  a new trial is required  -- either               because  prosecutorial misconduct  likely affected  the               trial's  outcome or  to deter  such  misconduct in  the               future -- we  consider the severity of  the misconduct,               whether it was deliberate or accidental, the context in               which  it occurred, the  likely curative effect  of the               judge's admonitions  and the  strength of  the evidence               against the defendant.          The record here  presents a strong case against  the defendant --          overwhelming  with  respect  to her  transporting  the  drugs and          substantial in suggesting knowledge that the objects carried were          contraband.  Insofar as the evidence of voluntariness or coercion          is  concerned, everything  depended  on defendant's  credibility.          But that credibility  was weakened immeasurably by the absence of          evidence that Michael was a targeted drug trafficker and, indeed,          by insinuations  that no such  source even existed.   Conversely,          defendant's story  would have  been dramatically  corroborated by          the information available to the government.               All  of  the other  tests  tilt  strongly  in favor  of  the          defense.  The non-disclosure was  both severe and deliberate.  It          is difficult to accept  that the results of such a methodical and          painstaking  investigation as that described by agent Rolon could          have been lost in  the shuffle of case preparation.   Even if the          failure   to  inform   defendant   were   not  intentional,   the                                         -13-          carelessness was  just as harmful.  The context was such that the          most  critical factor  in  defendant's tale  of  coercion --  the          coercer -- was the casualty of the government's nondisclosure and          ill-taken  skepticism.    And  there was  no  question  about any          curative instruction, because  the court itself was  in ignorance          of what the government knew but did not reveal.               It  is regrettable  that a  case in  many respects  well and          fairly tried and carefully monitored by the court must be undone,          the conviction reversed, and  a new trial ordered.   But both law          and fairness so dictate.               The judgment  is reversed and  the cause remanded for  a new               ____________________________________________________________          trial.          ______                                                                      -14-
