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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