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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 w
__________________________
________________________
Guillermo Gil, United States Attorney, and Jose A. Quiles Espino
_____________
______________________
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

courier

from Aruba

and U.S.
to the

resident,
United

for serving

States, in

as

a heroin

violation of

21

U.S.C.

841(a)(1)

intent

to distribute),

U.S.

(possession of
952(a)

customs territory), and

controlled substances

with

(importing such

substances into

955 (possession on

an aircraft of

controlled substances not listed in the cargo manifest).


Defendant's
government

improperly

investigation
source

principal

into

of supply,

deliberately
government.

claims

failed

she

the

government

applicable minimum

months in the

the

that

results

provided about

of the

appeals

her

sentence

the

of its

Aruba

argument

facts known

the

claiming that the court lacked authority


the

are

prosecutor's closing

suggested the contrary


The

appeal

to disclose

information
and that

on

to the

imposed,

to depart downward from

mandatory sentence

of

absence of a prosecution motion

60 months

to 41

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

customs

inspector, having

Customs

Declaration

defendant's luggage

Card,

Juan, Puerto
asked

for

proceeded

and person.
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Rico,

from Aruba.

and received
with

Although

an

defendant's

inspection

nothing unusual

of

was

revealed

by the

inspection, the

inspector

became increasingly

suspicious because of defendant's nervous demeanor, her statement


that she had
her

just returned from visiting her boyfriend (although

passport

revealed

statement that she

her

married

status),

did not know the whereabouts

and her professed ignorance of her

her

subsequent

of her husband,

ticket's scheduled layover in

Chicago.
A

computer

criminal
down"

check

revealed no

involvements recorded in

"intelligence

lookouts" or

defendant's name and

a "pat-

authorized by the inspector's supervisor also had negative

results.

Then,

swallower,"

on

suspicion that

customs

special

defendant's consent to an x-ray.


center.

As she

disrobed,

defendant was
agent,

Ana

an "internal

Rolon,

obtained

She was then taken to a medical

she

was

observed putting

in

her

clothing an object which was soon seized by agent Rolon, observed


to be a round pellet wrapped in
then

field tested

and shown

revealed three foreign


was arrested
later

as soon

expelled the

similar pellets
the

electrical tape inside a condom,


to be

heroin.

Meanwhile, x-rays

bodies in defendant's rectum.


as the field-test

three

results were

foreign objects,

of heroin powder.

Defendant

known and

which proved

A fifth pellet was

to be

found in

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

concerning defendant's

suggests,

possession and

the

objective

importation were

facts

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,

defendant was brought


was told

Friday afternoon,

before a U.S. magistrate judge.

there would be

said that Monday

late on a

no detention hearing until

would be too late

with someone right away.

When she

Monday, she

and that she needed

to talk

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

judge

that the

talking with appellant, Brill


source

destination was Chicago,

of the

drugs was

told the magistrate


in Aruba,

and that appellant wanted

with the government and make

that their

to cooperate

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
attorney.

a customs supervisor

to an assistant

United States

The government attorney proved to be unavailable

the weekend, however, and no

over

controlled delivery took place.

On

Monday, June 29, appellant was debriefed by agents Rolon and Baez
in

counsel Brill's

agent

Baez

were

presence.

Contemporaneous

apparently

Investigation" issued

the

basis

some two months

for

notes taken
a

"Report

later, on August

by

of

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
but,

for some

months.

Michael had

untold reason,

returned for a visit

had

his visa

Michael recently had called appellant


come and threatening
her

canceled in

take one call to

come . . . ."

her air ticket, using her Visa card.

to

hurt

Defendant bought

In Aruba Michael instructed

her to take the contraband to an individual


be reached on a certain beeper number;

1992.

from Aruba, asking her

that "it would only

and her kids if she did not

in 1988

in Chicago who could

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

carrying drugs from Aruba because he did


to carry

the contraband

phone number of

internally.

Mexico in

1989

when

not follow instructions


Defendant

had given

the

Michael's Aruba hotel room to agent Rolon at the

time of her arrest.


At trial, defendant

expanded on this summary.

her husband's effort

in 1989 to

the

which

United

States,

assist bringing Nigerians

she believed

had

incarceration in Mexico since that time.


Aruba,
husband.

Michael proposed
She was afraid

talking with

that she

She told of

resulted

to travel alone

in a

visit to

to Mexico

change in plans.

and room key,

his

her

and, after

her children, bought a ticket for $1,400.

passport, "green card,"

in

In his recent call from

join him

arrived in Aruba, Michael met her, took

into

When she

her to a hotel, took her


and later told

her of

Instead of going immediately to Mexico, she was


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to

carry some

packages

compliance, he threatened

for

him to

Chicago.

To

that he knew Mafia people

ensure

her

and that it

would take only


defendant
school.
not

call to

lived, where she


She

work.

pellets.

"get action."

worked, where

felt she could not


Michael finally

The day

called a friend
and

a phone

escape and the hotel

where

went to

phone did

inserting some

was apprehended

in San Diego, told her

arranged to have her

her children

assisted in

after she

He knew

of the

in San Juan,

she

about Michael's threats,

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

corroborate

obtain

evidence

her account

from

of what

the

government

had happened.

defendant sought corroboration of

until

after

she

argues that

Michael

Although she did not

extent of Michael's involvement


her trial,

would

In particular,

her identification of

as the source of the drugs she had carried.


know of the

that

in drug trafficking
the

government knew,

before trial, that Michael Mouma (his correct surname) had been a
drug

trafficker and government target for

the issue of government knowledge

several years.

Since

is critical to this appeal, we

summarize the record.


1.

Before trial.
____________

From

the

beginning,

stressed defendant's willingness to cooperate.


arrest,

June

26,

counsel had

conveyed

participate in a controlled delivery


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defense

counsel

On the day of her

defendant's

in Chicago.

desire to

At defendant's

debriefing on

June 29, she

gave to the arresting

officials the

name of her source, which was transcribed as Michael Mouhma.


agents already had

seized a piece of paper

hotel room telephone number.


counsel

had written

In

defendant, closing with

with Michael's Aruba

a letter dated July 2,

the prosecutor

of

The

defense

her conversations

a request to be

kept up to date

with

"as to

any further developments."


Trial was scheduled
counsel moved for
Act

for September 4.

the production of

material, see
___

18 U.S.C.

On

August 4, defense

any exculpatory and

3500;

on August

28, the

Jencks

court

granted the requests.


2. At trial.
________

On September 4,

prosecution delivered

to defendant a

that had been prepared on August 25.

the first day of


"Report of

trial, the

Investigation"

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
government

being

pressed at

had learned from

customs agent Rolon testified:

trial

for what,

if

anything, the

information given it

by defendant,

The name
Michael. She
of paper what
With what she
experience I
with what I
facts . . . .

-- the name that she gave me was only


just gave me and she wrote in the piece
she thought [] was his last name. Okay?
gave me I find nothing, but based on my
started digging into and looking for it
have, and I started like matching some

* * *
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

other name help[ed]

in a way to

Rolon said, "the

identify that there is

another

association or organization which involves . . . the source . . .


in Aruba."
3.

Post trial.
__________

After

moved for the production


relating to
testimony.

the "ongoing

trial, on

September 18,

of any rough notes made


investigation" she

defendant

by agent Rolon

had alluded

to in

The government's written reply stated that only agent

Baez had made notes at the debriefing, which were then submitted,

revealing
report.

nothing

differing

in substance

from

the

August 25

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.
_______________________
prosecutor

stressed

limited, that

that

the

the last name

At oral argument before us, the


cooperation

of

of her source had

defendant

been misspelled,

but that at some point he had been tracked down.


acknowledged that
had been

not only had

a target since

1988.

The prosecutor

Michael been identified,


Although the

was

but he

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

four

years

as

targeted

his known prominence

drug

prosecution's closing argument.


specifically
government

put to

one

trafficker,

we

In so doing, we

side

defendant's

for some

examine

the

stress that we

argument

that

the

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
defendant proves to
defense

and

credibility.
Michael

in

reported

be accurate, this is of

its

interest

In this
Aruba with

by

in

fact that

surname
would

And the

significance to the

strengthening

case the

defendant

defendant's story.
known

find that information given by a

the

defendant's

there was

strikingly similar

have

given

some

indeed a
to

support

fact that this person had long

as a drug trafficker would

that

to

been

have enhanced considerably the

believability of defendant's story of being threatened by someone


who had the

capacity to make good

government's failure
information could
decide.

We

have

to disclose

be said
no

on his threats.

this credibility-strengthening

to be reversible

doubt,

however,

error, we

that

persistent theme in closing argument suggesting


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Whether the

the

need not

prosecutor's

the nonexistence

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

implicitly questioned
her claim that

her

boyfriend."

Michael's existence

she did not learn

And

he

again

when commenting

of any threat until

upon

after she

reached Aruba and "was advised by this alleged Michael that there
was a threat

against her children."

contradiction.

After

"One

then escalated to

challenging defendant's

pointing out how long it had


Michael's

Innuendo

threats against

credibility

taken for her to tell anyone


her children,

more thing which you need to keep

the

by

about

prosecutor noted,

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
while

point defense counsel

foreclosed

questions
information

about

for
the

provided by

objected.

confidentiality
government's
defendant, "I

government should now be able

She

reasons

argued that,
from

investigation
do not believe

asking

into

the

that the

to argue that that information has

led to nowhere or that it is meaningless and that


was the

truth."

In

something else

response, the prosecutor explained

that he

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was

pointing to

defendant to

unlikelihood that

Chicago with no

about how much


court allowed

the

round trip

money was supposed


the government to

"this

guy" would

ticket or

to be returned

send

information
to him.

argue that it would

The

strain the

imagination to accept that "the guy" in Aruba entrusted defendant


with

quarter

million

instructions concerning

dollars
how much

worth

of

heroin

money she was

with

to bring

no

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
name is.
Most

to stop Michael

or whatever his

She wanted to stop us from catching her."


of this was

legitimate argument.

the direct challenge to the


however,

or whomever his --

when the

The inferences and

existence of a source named Michael,

prosecution had

unearthed

evidence that

he

existed and was a prominent dealer in narcotics, is indefensible.


Here

we find

kind of

double-acting

prosecutorial error:

failure to communicate salient information, which, under Brady v.


_____
Maryland, 373
________
U.S.

U.S. 83 (1963),

150 (1972),

should

be

and Giglio v. United States, 405


______
______________
disclosed to

deliberate insinuation that the truth is


pointed out

in United States
_____________

Cir. 1993),

"it [is] not improper

the plausibility of
other

evidence

improper

for a

lack

prosecutor

F.2d 681,

to urge the

but

reliance

As we

683 (1st

jury to evaluate

defense in

thereof),"

to imply

defense, and

to the contrary.

v. Smith, 982
_____

the justification

(and the

the

light of
"it is

the

plainly

on knowledge

or

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evidence not available to the jury."


to

imply reliance

untrue, or

on a

fact that

It is all the more improper


the prosecutor

to question the existence of

knows to

be

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
overwhelming

presents a strong case against

with

respect

to her

the defendant --

transporting

the

drugs and

substantial in suggesting knowledge that the objects carried were


contraband.
is

Insofar as the evidence of voluntariness or coercion

concerned, everything

But that credibility

depended

on defendant's

credibility.

was weakened immeasurably by the absence of

evidence that Michael was a targeted drug trafficker and, indeed,


by insinuations
defendant's story

that no such
would have

source even existed.


been dramatically

Conversely,

corroborated by

the information available to the government.


All
defense.

of

the other

tilt

The non-disclosure was

is difficult to accept
painstaking

to

strongly

in favor

of

both severe and deliberate.

the

It

that the results of such a methodical and

investigation as that described by agent Rolon could

have been lost in


failure

tests

the shuffle of case preparation.

inform

defendant

were

not

Even if the

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

curative instruction, because

no

question

the court itself was

about any

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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