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United States v. Spencer

United States Court of Appeals, First Circuit

August 23, 2017

BARRY SPENCER, Defendant, Appellant.


          Karen A. Pickett, with whom Pickett Law Offices, P.C. was on brief, for appellant.

          Cynthia A. Young, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.


         Barry 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.


         We 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 -- hinges.


         According 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.

         Several 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.

         Spencer was arrested several days later, on May 26, 2013, in connection with the undercover purchase of the crack cocaine.[1]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.

         Spencer's 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.


         On May 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.

         The 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.

         However, 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."

         The 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: [1] [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] 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.

         The 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.

         Spencer 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.


         We 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.


         We have 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)).

         As the 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).

         We 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. United Statesv.Cruz-Feliciano, 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, ...

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