United States v. Udechukwu

Opinion

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

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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

                                         -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,

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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

                                         -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.
          ______

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