United States v. Udechukwu

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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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.

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