FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]
A. Pickett, with whom Pickett Law Offices, P.C. was on brief,
Cynthia A. Young, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Spencer was convicted in federal court of one count of
possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2,
and one count of conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §
846. He now appeals the District Court's denial of his
motion for a new trial, which relied primarily on the
government's alleged violation of Brady
v. Maryland, 373 U.S. 83 (1963). Spencer
also challenges on appeal the admission at trial of certain
testimony from two police officers concerning Spencer's
conduct during (and immediately preceding) the undercover
drug purchase that led to the charges against Spencer,
certain statements made by the prosecutor during closing
argument, and the decision by the Magistrate Judge assigned
to Spencer's case to deny discovery on Spencer's
claim of vindictive prosecution. Finding no merit to these
challenges, we affirm.
first recount key aspects of the record developed at
Spencer's trial (which followed an earlier mistrial) and
at two post-trial hearings before the District Court. We
recount, too, the procedural history of the case. Because a
number of the issues that Spencer raises on appeal are quite
fact-dependent, we focus up front on only those facts that
pertain to his conviction on the two drug counts. We thus
reserve a full discussion of the facts relevant to the
specific challenges that Spencer raises on appeal for our
consideration of the merits of the challenges. We do,
however, provide sufficient detail regarding the procedural
history to isolate the particular issue on which his primary
challenge -- concerning the alleged Brady violation
to testimony at trial, on March 20, 2013, two members of the
Boston Police Department ("BPD") -- Detective
Sergeant Donald Keenan and Officer Richard Casallas --
identified Spencer as someone who was potentially selling
drugs in the Egleston Square area of Roxbury, one of
Boston's neighborhoods. According to Keenan's trial
testimony, Keenan was familiar with Spencer "from the
neighborhood" and made the decision to deploy Casallas,
who was working undercover, to make a drug purchase. Casallas
then approached Spencer and asked if Spencer was
"on." Spencer responded that he was "always
on, " and Casallas then asked Spencer if he could
purchase $20 of crack cocaine. Spencer told Casallas to
follow him, and the two men briefly walked down the street
together. Spencer then told Casallas to return to the bus
stop where they had started.
minutes later, according to testimony at trial, Spencer came
back with Michael Morrison. Casallas testified that, with
Spencer "scanning the area, looking at car[s] as they
drove by, " Morrison sold Casallas a small bag of crack
cocaine in exchange for $20. Casallas and Spencer and
Morrison then went their separate ways.
was arrested several days later, on May 26, 2013, in
connection with the undercover purchase of the crack
cocaine.Thereafter, the case was transferred to
federal authorities for prosecution, and, on June 26, 2013,
Spencer was indicted by a federal grand jury and charged with
one count of possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.
In a superseding indictment filed on August 28, 2013, the
government also charged Spencer with one count of conspiring
-- with Morrison -- to possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846. On March 26,
2014, the government filed a second superseding indictment
that specified that the controlled substance was cocaine
base, not cocaine.
first trial on these charges ended in a mistrial. As the
District Court later explained, one of the jurors then sent
an "unsolicited letter to the court" expressing the
sentiment that "the total case . . . seemed unfair[, ]
[u]njust[, and] [w]rong." Spencer was, however, retried
on the same charges. And, after a three-day trial, Spencer
was found guilty on both counts of the second superseding
indictment and sentenced to 60 months' imprisonment and
36 months' supervised release.
14, 2015, several weeks after Spencer had been convicted of
these charges, he filed, pro se, what he styled as a
"Renewed Motion for a Required Finding of Not Guilty or,
in the Alternative, for a New Trial." That motion
claimed, among other things, a Brady violation.
Specifically, Spencer contended that the government had, in
violation of Brady, failed to turn over evidence
regarding the prosecution's involvement in triggering a
correction to certain erroneous information set forth on a
certificate that had been issued by the chemist for the
Massachusetts State Police Laboratory (the "State Police
Laboratory") who was responsible for analyzing the
chemical composition of a sample of the substance that the
government alleged Casallas had purchased from Morrison.
District Court denied Spencer's motion for a new trial on
October 8, 2015. In doing so, the District Court explained
that, based on United States v. Del-Valle, 566 F.3d
31, 38 (1st Cir. 2009):
[i]n the normal course, a defendant who seeks a new trial on
the basis of newly discovered evidence must establish that:
(1) the evidence was unknown or unavailable to the defendant
at the time of trial; (2) failure to learn of the evidence
was not due to lack of diligence by the defendant; (3) the
evidence is material and not merely cumulative or impeaching;
and (4) the emergence of the evidence will probably result in
an acquittal upon retrial of the defendant.
because the basis for Spencer's motion was "that the
government failed to disclose evidence required to be
disclosed" under Brady, the District Court --
quoting United States v.
González-González, 258 F.3d 16, 20 (1st
Cir. 2001) -- explained that a "more defendant-friendly
. . . standard applies." Specifically, the District
Court noted that, as we held in United States v.
Flores-Rivera, 787 F.3d 1, 15-16 (1st Cir. 2015), with
respect to what a defendant must show when seeking a new
trial based on violation of Brady, "[i]nstead
of requiring that the defendant show that an acquittal would
have 'probably' resulted had the material been
produced, we require only that the defendant show a
'reasonable probability' that had the government
disclosed the evidence prior to trial, the result of the
proceeding would have been different."
District Court then applied this more
"defendant-friendly" test, under which
Spencer's "threshold" burden was to show that a
Brady violation did, in fact, occur. Accordingly,
the District Court used the three-prong test outlined by the
Supreme Court in Strickler v.
Greene, 527 U.S. 263, 281-82 (1999), for determining
whether a Brady violation occurred. As the District
Court explained, under Strickler, "[t]here are
three components of a true Brady violation: 
[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is
impeaching;  that evidence must have been suppressed by
the State, either willfully or inadvertently; and 
prejudice must have ensued." Id. And, the
District Court further explained, relying on Kyles
v. Whitley, 514 U.S. 419, 434 (1995), that,
in order to show prejudice under Brady, the
defendant must demonstrate that the undisclosed evidence is
material -- that is, the defendant must show that there would
be a "reasonable probability of a different result"
at trial had the evidence been disclosed.
District Court concluded that, with respect to the evidence
concerning the prosecution's contacts with the chemist
for the State Police Laboratory that had not been disclosed
by the government, Spencer had succeeded in meeting his
burden as to the first two prongs of the test for finding a
Brady violation set forth in Strickler. The
District Court concluded, however, that, "by the
narrowest of margins, " Spencer had not shown that he
was prejudiced by the government's withholding of the
evidence -- that is, that he had not shown that it was
reasonably probable that the outcome at trial would have been
different had the evidence been disclosed. Accordingly, the
District Court ruled that there had been no Brady
violation. And, because the District Court concluded that
Spencer's motion -- although it also referenced other
issues -- "focused on the government's failure to
disclose" evidence regarding the prosecution's
communications with the chemist for the State Police
Laboratory, the District Court denied the motion.
then filed this timely appeal, in which he challenges four
separate rulings below: first, the District Court's
denial of his motion for a new trial under Brady on
the ground that the undisclosed evidence was not material;
second, the admission at trial of certain testimony from the
two police officers who organized and participated in the
undercover drug purchase that led to Spencer's arrest;
third, the District Court's refusal to declare a mistrial
in consequence of certain statements made by the prosecution
during closing argument; and, finally, the decision to deny
Spencer discovery on his motion to dismiss the case against
him based on an allegation of vindictive prosecution. We
consider each challenge in turn.
start with Spencer's challenge to the District
Court's ruling denying the motion for a new trial based
on the claimed Brady violation. Spencer challenges
only the third step of the District Court's
Brady analysis, concerning the materiality of the
undisclosed evidence, and thus we, too, focus on that issue.
For the reasons that follow, we reject Spencer's
contention that the District Court reversibly erred in
denying Spencer's Brady-based motion.
explained that, "[i]n Brady, the Supreme Court
held the Government's suppression of evidence favorable
to the accused violates due process where the evidence is
material to guilt or punishment." Conley
v. United States, 415 F.3d 183, 188 (1st
Cir. 2005) (citing Brady, 373 U.S. at 87). This
materiality prong of the Brady inquiry requires that
the defendant show that "there is a reasonable
probability that, had the evidence been disclosed, the result
of the proceeding would have been different."
Turner v. United States, 137 S.Ct.
1885, 1893 (2017) (quoting Cone v.
Bell, 556 U.S. 449, 469-70 (2009)).
Supreme Court emphasized in Strickler with respect
to materiality, "[t]he question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence." 527 U.S.
at 264 (quoting Kyles, 514 U.S. at 434); see
also Turner, 137 S.Ct. at 1893 ("A reasonable
probability of a different result is one in which the
suppressed evidence undermines confidence in the outcome of
the trial." (citations omitted)). On the basis of this
precedent, we have explained that "[t]his somewhat
delphic 'undermine confidence' formula suggests that
reversal might be warranted in some cases even if there is
less than an even chance that the evidence would produce an
acquittal." Flores-Rivera, 787 F.3d at 16
(quoting Conley, 415 F.3d at 188).
review the District Court's denial of Spencer's
motion for a new trial on the basis of the government's
alleged Brady violation for abuse of discretion.
786 F.3d 78, 87 (1st Cir. 2015). Because, as we have
explained, the key issue concerns the materiality, under
Brady, of the undisclosed evidence, we are mindful
in undertaking this review that "the district
court's determination on the materiality of newly
discovered evidence in prosecutorial nondisclosure cases is
ordinarily accorded deference, " United Statesv.Sanchez, 917 F.2d 607, 618 (1st Cir.
1990) (citations omitted), "[d]ue to its inherently
fact-bound nature, " id. (citation omitted);
see also United Statesv.Imbruglia, 617 F.2d 1, 7 (1st Cir. 1980) (noting
that the "district judge, who presided at
appellant's trial, ...