United States v. Tucker

United States Court of Appeals
For the First Circuit
No. 21-1515
UNITED STATES,
Appellee,
v.
STEVEN TUCKER, a/k/a CHILL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Kayatta, Lipez, and Thompson,
Circuit Judges.
Megan A. Siddall, with whom Christina N. Lindberg and Miner
Siddall LLP were on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Jane E. Young, United States Attorney, was on brief, for appellee.
February 23, 2023
THOMPSON, Circuit Judge. The defendant, Steven Tucker,
appeals his convictions for sex trafficking of a minor (in
violation of 18 U.S.C. § 1591), use of an interstate facility to
promote unlawful activity (in violation of 18 U.S.C. § 1952), and
maintaining a drug-involved premises (in violation of 21 U.S.C.
§ 856). In this direct appeal, Tucker raises two issues:
(1) whether he was entitled to a mistrial after the trial judge
dismissed two jurors just before the jury started deliberating,
and (2) whether he is entitled to a new trial when, several weeks
after the jury returned the guilty verdicts, the government
disclosed that it had inadvertently withheld impeachment evidence
about one of its witnesses. For the reasons we explain below, we
affirm.
Background
Before delving into the events on which the two appellate
issues are based, we hit the highlights of the factual
underpinnings of Tucker's counts of conviction to provide a wide-
lens view of the conduct for which the jury found Tucker criminally
culpable. See United States v. Laureano-Salgado, 933 F.3d 20, 24
(1st Cir. 2019) (explaining similar set up). We present "the
pertinent facts in the light most agreeable to the verdict,
deferring some details to our analysis of the issues raised on
appeal." United States v. Blanchard, 867 F.3d 1, 3 n.1 (1st Cir.
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2017) (quoting United States v. Savarese, 686 F.3d 1, 5 (1st Cir.
2012)).
The testimony at Tucker's four-day jury trial revealed
that, between October 2013 and July 2014, Tucker ran a robust
heroin trade and prostitution venture out of his address of record
on Walnut Street in Manchester, New Hampshire. Serving as both a
pimp and a drug dealer during this time, Tucker fed the heroin
addictions of several women, incentivizing their sex work by
withholding or providing heroin (as well as withholding or
providing food) depending on their earnings from day-to-day. The
testifying witnesses included a few of these women, all of whom
were in recovery and struggling to stay sober.1
The women arranged the sex work through Backpage.com.
Now defunct, the Backpage website had allowed any user to post
advertisements for products or services, including under
categories for "adult entertainment" or "escorts," with the
postings sortable by geographic area.2 Jane Doe No. 1 v.
Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016); see also United
1 At the time of their testimony, the women had been sober
for somewhere between several months to a couple of years. Most
also testified that they had experience with cycles of sobriety
and relapse.
2 Backpage.com ceased to exist in 2018 after its chief
executive agreed to shut it down as part of a plea deal he
negotiated to resolve the conspiracy and money laundering charges
filed against him in federal court. Maggie Astor, Guilty Pleas
From C.E.O. of Backpage, N.Y. Times, Apr. 13, 2018, at A21.
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States v. Blanchard, 867 F.3d 1, 4 (1st Cir. 2017). For $7 per
post (paid with a prepaid Visa card Tucker provided), Tucker or
one of the women posted an ad with their individual photo and phone
number and then waited for the phone to ring to schedule a time to
meet up. Many of the sexual encounters took place at Tucker's
Walnut Street residence, others at hotels in Manchester,
Massachusetts, or Rhode Island.
The roster of women working in Tucker's "stable"3
included at least nine women with two or three of them working on
any given day. When each sexual encounter ended, the women handed
Tucker all or part of the money they had been paid, and he gave
them heroin. At times, he also gave them money for clothes, rent,
food, and cigarettes. One of the women estimated that she and the
others completed around five "dates" per day on weekdays and "up
to ten" on weekends, receiving hits of heroin from Tucker three or
four times a day.
Shifting our attention to some of the individual
relationships between Tucker and these women, Tucker and Jasmine4
(the underage woman on whom the government based the trafficking-
3 In this context, "stable" means "a group of victims who are
under the control of a single pimp." Linda Smith, Renting Lacy:
A Story of America's Prostituted Children xvii (Shared Hope
International, 2009).
4 The parties agreed at trial to refer to the witnesses by
their first names. We follow suit.
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of-a-minor count) first met when she was around 14 years old and
he was dating her aunt. Approximately three years later, they ran
into each other and exchanged phone numbers. At his invitation,
Jasmine visited him at the Walnut Street house. Three days later
she posted her first ad on Backpage. Jasmine, who had been sober
before reencountering Tucker, started using heroin again --
courtesy of Tucker -- "to cover up the pain" of her sex work. In
October 2013, Jasmine, while working for Tucker, turned 17 years
old. Jasmine testified that Tucker knew her age at the time she
worked for him; she told Tucker how old she was and said that he
"[k]ind of avoided it" ("it" being the topic of her age). Haley,
who both worked for Tucker and dated him during most of the time
in question, had known Jasmine was only 17 years old and also
testified that Tucker knew Jasmine's age and neither said nor did
anything about it. Morgan, another sex worker who also had been
in a relationship with Tucker (overlapping significantly with the
same time period as Haley), also gave testimony about Tucker's
knowledge of Jasmine's age. She told the jury that Tucker told
her Jasmine was underage during an incident in which they had all
been detained in a highway traffic stop and a needle and drugs had
been found in the car they were in. Tucker had been angry with
Jasmine for not taking the fall for them over the drug find, given
her juvenile status.
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After three days of witness testimony,5 the jury was set
to begin deliberating but got delayed because the trial judge found
out that a couple of jurors made comments about the case to each
other during the trial. We will lay out all the details soon --
for now it's enough to know that the trial judge investigated the
information brought to his attention, dismissed two jurors, and
denied a mistrial motion Tucker had filed because of the alleged
juror misconduct. The jury returned guilty verdicts on all three
indicted counts later that day. A few months later, the government
revealed to the defense that it had inadvertently failed to
disclose that one of its trial witnesses (Morgan) had been arrested
before trial on a New Hampshire drug charge. The felony state
charge had been pending at the time of Morgan's testimony and --
also at the time of trial -- the U.S. Attorney's Office had been
considering whether to prosecute Morgan in federal court for the
same alleged drug sale conduct. Based on this revelation, Tucker
once again moved for a new trial, which, after a hearing, the trial
judge denied. Now before this court, Tucker challenges the denials
of each of these two motions. We start our work with the juror-
related motion for mistrial.
5 The other trial witnesses included other sex workers
addicted to drugs, another Walnut Street house resident, the Walnut
Street house property manager, Tucker's sister, and Tucker's
nephew.
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Juror Comments
Bear with us as we summarize the sequence of
conversations that led to Tucker's motion for mistrial; to provide
the necessary context for Tucker's arguments we need to paint the
full picture. By the end of the third day of trial, the defense
rested, the trial judge provided instructions to the jury, both
the prosecution and defense delivered their closing arguments, and
the court chose the alternate jurors. The next morning, before
deliberations got underway, one of the jurors brought a concern
about another juror to the court's attention. Juror No. 1
apparently told another juror partway through Trial Day 3 that, on
the day before he had reported for jury duty, he looked up the
court schedule for the next day and, based on the schedule posted
on the court's website, guessed he had been summonsed for jury
duty in Tucker's case. He also commented that he thought the case
was really old.
The court investigated by speaking with Juror No. 1, who
admitted to looking at the district court's website the day before
reporting and he saw a schedule that included jury selection for
Tucker's case. He denied discussing the case with anyone after he
was selected for Tucker's jury. He disclosed that he had deduced
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the age of the case from the testimony about the events which had
taken place in 2013 and 2014 (the trial was held in March 2019).
At defense counsel's request, the judge spoke with each
of the other seated jurors to determine whether they'd had any
conversations with Juror No. 1. Two of the remaining seated jurors
relayed that they had overheard another juror commenting about
looking up the court schedule, but had not known which juror had
spoken at the time or to whom. After the judge and the attorneys
discussed what they had learned, the judge -- at Tucker's request
and over the government's objection -- dismissed Juror No. 1. The
judge did so because this juror's demeanor during the court's
questioning of him had appeared defensive -- at times combative -
- and the judge was concerned that the questioning process may
have "impacted [Juror No. 1's] duty to be fair and impartial."
The court then questioned the first alternate juror
(Juror No. 4) to ensure she was still qualified. In response to
the court's inquiry about whether she knew if any jurors had
violated the court's instructions about not discussing the case or
accessing media, she said that, one day at the lunch break, as the
jurors were walking out of the courtroom, Juror No. 7 -- who Juror
No. 4 perceived throughout the trial to be "agitated" and "intense"
-- said to another male juror: "I can't believe that. That
witness was . . . ." But before Juror No. 7 could complete his
thought Juror No. 4 told him to stop talking, and he did. Juror
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No. 4 also reported that, the day before, the same Juror No. 7
said "we should be able to wrap this up today" in a tone she
understood to mean he thought the outcome was very clear. Juror
No. 4 also heard Juror No. 7 make a "derogatory" comment about
defense counsel and when he did several jurors told him to be
quiet. Juror No. 4 insisted that overhearing these comments had
not affected her ability to be fair and impartial.
Based on this new information, the trial judge suggested
to the defense counsel and prosecutors that he again speak with
each juror individually to inquire about the comments Juror No. 4
reported overhearing. In response, defense counsel moved for a
mistrial, asserting that Juror No. 7 had tainted the entire jury
pool. Counsel argued that the juror clearly had made up his mind
and was expressing his thoughts to other jurors, had indicated he
wanted to get the trial over with, and had been described in
general as one who could have an aggressive approach during
deliberations, all of which resulted in jury corruption. The
government objected, commenting that defense counsel was blowing
two isolated comments out of proportion. The court reserved its
ruling until after it had an opportunity to "examine the other
jurors" to investigate and assess whether this one juror "had
impact enough that even excusing him would not be sufficient to
alleviate any problems he may have caused."
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When called to speak with the judge and the parties,
Juror No. 7 said he had made a comment that he thought the jury
would "be here for a while" but denied making any comments about
the lawyers in the case or their performances. The court did not
confront him directly with the statements Juror No. 4 had relayed
-- an approach both parties agreed was prudent so Juror No. 7 would
not be placed in a defensive posture. The examination of the
remaining jurors did not turn up any other venire members who had
heard Juror No. 7's purported comments. Nonetheless, defense
counsel renewed his motion for a mistrial, claiming one of the
jurors must have been lying. The court disagreed, labeling Juror
No. 4's report about Juror No. 7's comments "amorphous."
Backing up briefly to the court's second round of
speaking with each juror, Juror No. 9 did say that she'd overheard
two jurors (Nos. 1 and 11) commenting that some of the questions
defense counsel asked the witnesses sounded redundant. By this
point, Juror No. 1 had already been dismissed, so the court only
followed up with Juror No. 11 -- the second alternate -- who did
admit to commenting at some point about the redundancy of some of
defense counsel's questions. Tucker then insisted that a mistrial
was warranted because the factual inconsistencies which emerged
from the judge's inquiry of each juror about who said what and
when and which juror overheard something meant that "the jury has
been, you know, deliberating in some cases out loud" and Juror No.
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11 (the alternate who could replace Juror No. 7) had herself made
a comment about the redundancy of the defense counsel's
questioning. In the alternative, the defense requested the court
discharge Juror No. 7. The government countered there was no
indication Juror No. 7 had engaged in any actual misconduct.
The trial judge ultimately denied the motion because,
after speaking with each juror twice, he was "thrilled" to discover
that "they followed the instructions as carefully as human beings
can generally be expected to follow them" given that it's not
"unusual for one juror to mention to another that something is
monotonous . . . I'm not surprised that occasionally a sideline
comment is made about a witness or about a lawyer and a lawyer's
effectiveness." The judge discussed each of the comments the
jurors alleged they heard and concluded there had been no juror
misconduct because either the comment couldn't be conclusively
interpreted as pro or con prosecution or defense, the alleged
comment was not corroborated by any other panel member, or the
comment was an innocuous observation that any juror may have made.
In the judge's view, Juror No. 4 had drawn a lot of inferences
based on just a few words spoken by Juror No. 7, and whatever Juror
No. 7 said hadn't influenced any of the other jurors. In the
judge's words:
So I didn't see anything in these discussions with the
jurors today that amounted to being in my view juror
misconduct or manifest necessity, which is a
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circumstance involving juror misconduct, among other
things, which is of such an overwhelming and
unforeseeable nature that the conduct of the trial or
reaching a fair result is impossible and which
necessitates the declaration of a mistrial. I don't
think we've reached that point here.
He did grant the alternative relief Tucker requested, dismissing
Juror No. 7 over the government's objection though "not based on
misconduct but more I guess I would call it in an abundance of
caution." The judge also found Juror No. 11 qualified to replace
Juror No. 7.
That backdrop in place, before this court Tucker argues
that the trial judge abused his discretion when he denied the
mistrial motion. Before examining Tucker's specific contentions
on this issue, we provide a quick primer about how trial judges
are to handle suspected juror misconduct. The overarching
principle is that "an impartial jury is an integral component of
a fair trial and must be jealously safeguarded." United States v.
Maldonado-Peña, 4 F.4th 1, 38 (1st Cir. 2021), cert. denied Rivera-
Alejandro v. United States, 142 S. Ct. 729 (2021), and cert. denied
Rivera-George v. United States, 142 S. Ct. 1184 (2022), and cert.
denied Rivera-Alejandro v. United States, 142 S. Ct. 1185 (2022)(quoting Sampson v. United States, 724 F.3d 150, 160 (1st Cir.
2013)). Therefore, "the trial court has a duty to investigate
[an] allegation [of jury taint] promptly," United States v.
Therrien, 847 F.3d 9, 17 (1st Cir. 2017) (quoting United States v.
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Bradshaw, 281 F.3d 278, 289 (1st Cir. 2002)), determining first
"whether a taint-producing event actually occurred and, if so, the
extent or pervasiveness of the resulting prejudice," id. (citing
United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990)). "If
the trial court finds both a taint-producing event and a
significant potential for prejudice, it must then consider
possible measures to alleviate that prejudice." Id. (citing
Bradshaw, 281 F.3d at 289). "If the potential for prejudice
remains too high even after the trial court's best efforts, then
the court must grant any resulting motion for a mistrial." Id.(citing Bradshaw, 281 F.3d at 289). However, "[g]ranting a
defendant's request for a mistrial is 'a last resort, only to be
implemented if the [jury] taint is ineradicable.'" Id. (quoting
United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993))
(second alteration in original).
"When reviewing the denial of a mistrial request, we
. . . 'consider the totality of the circumstances to determine
whether the defendant has demonstrated the kind of clear prejudice
that would render the court's denial of his motion for a mistrial
a manifest abuse of discretion.'" Id. (quoting United States v.
Trinidad–Acosta, 773 F.3d 298, 306 (1st Cir. 2014)). In other
words, "[s]o long as the district judge erects, and employs, a
suitable framework for investigating the allegation and gauging
its effects, and thereafter spells out [his] findings with adequate
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specificity to permit informed appellate review, the court's
'determination deserves great respect and should not be disturbed
in the absence of a patent abuse of discretion.'" Maldonado-Peña,
4 F.4th at 38-39 (quoting United States v. French, 977 F.3d 114,
122 (1st Cir. 2020)) (cleaned up).
Tucker primarily attacks the trial judge's denial of the
motion for mistrial in two ways. First, he contends the trial
judge used a standard (that of "manifest necessity") that is not
applicable when -- as here -- the defendant is the party seeking
the mistrial.6 Second, Tucker asserts the trial judge made the
wrong call about the absence of actual juror misconduct and the
lingering effect of the jurors' comments on the remaining jurors.
We'll start our work on this issue with Tucker's claim that the
trial judge applied the wrong standard to the mistrial motion.
As summarized above, the trial judge provided a detailed
take on why he was denying Tucker's motion for mistrial,
articulating his reasoning why he found no juror misconduct or
"manifest necessity," but dismissing two jurors anyways. Tucker
zeroes in on the judge's use of the phrase "manifest necessity."
Manifest necessity is the standard applied to determine
6
whether the government is entitled to a mistrial over the
defendant's objection. See United States v. McIntosh, 380 F.3d
548, 553 (1st Cir. 2004). "[T]he Double Jeopardy Clause . . .
bar[s] retrial of a defendant after a mistrial ordered over the
defendant's objection unless the mistrial was occasioned by
manifest necessity." Id.- 14 -
This phrase is relevant when a court must determine whether the
Double Jeopardy clause of the U.S. Constitution bars a retrial
after a mistrial is ordered over a defendant's objection; double
jeopardy principles do not bar a retrial, however, when "the
mistrial was occasioned by manifest necessity" -- e.g., a hung
jury. United States v. Brown, 426 F.3d 32, 36 (1st Cir. 2005)
(quoting United States v. McIntosh, 380 F.3d 548, 553 (1st Cir.
2004)). When a defendant is the party requesting a mistrial then
he or she is "ordinarily . . . deemed to have waived any subsequent
claim of double jeopardy" and so the manifest necessity standard
does not come into play. McIntosh, 380 F.3d at 554; see United
States v. Dinitz, 424 U.S. 600, 607 (1976) (stating "[d]ifferent
considerations obtain . . . when the mistrial has been declared at
the defendant's request"). Here, Tucker moved for the mistrial,
so he is correct -- the manifest necessity consideration is not
applicable here.
But our analysis does not end there. The record reveals
a couple of hitches with Tucker's attack on the trial judge's use
of this inappropriate standard as an error: Not only did he not
object to the use of this standard below, he (as the government
points out) actually invited the judge to use it, kicking off his
argument for a mistrial with "Frankly, you know the standard is
manifest necessity." The trial judge's mention of the standard
was clearly invited by the defense and Tucker may not now benefit
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from an invited error. See United States v. Gottesfeld, 18 F.4th
1, 12-13 (1st Cir. 2021) (concluding waiver applied to an appellate
argument about why an attorney's motions to withdraw should have
been granted after the defendant/appellant had asked the trial
judge to deny these motions); United States v. Amaro-Santiago, 824
F.3d 154, 160 (1st Cir. 2016) (rejecting the defendant's challenge
on appeal to the trial court's delayed issuance of a curative
instruction because the defendant had asked the court to hold off
until the next day). Regardless, the trial judge did not rely
solely on determining whether there was "manifest necessity" for
a mistrial. Rather, he reasoned through all the information before
him, concluded there was no misconduct, implemented corrective
measures out of (his words) "an abundance of caution," and
determined the remaining jurors were not influenced by the comments
of the dismissed jurors.7
7 Anticipating the government's response to his challenge to
the standard on which he contends the trial judge impermissibly
relied, Tucker also argues that the government waived any argument
that the trial judge adjudicated the motion for mistrial using the
appropriate standard. This is so because, according to Tucker,
the government suggested to the trial judge that this court could
decide the juror misconduct issue in the first instance. We read
the record differently. The government, while arguing against the
defendant's bid for a mistrial, asserted that whichever way the
trial judge ruled there would be no downside to Tucker -- i.e., if
the court granted the motion then Tucker would get a retrial, and
if the court denied the motion then the issue was undoubtedly
preserved for appeal so if this court decided the trial judge
abused his discretion then Tucker would get a retrial. The
government was not asking the trial judge to punt the issue to
this court to take the first pass on it. Moreover, as the
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Shifting to Tucker's second line of attack on the denial
of his juror related mistrial motion, he asserts that even if the
judge could be viewed as having applied the right standard, his
finding that there was no juror misconduct was clearly wrong
because "[t]here is evidence in the record that some jurors engaged
in predeliberation or were biased and that others were exposed to
that predeliberation and bias." Tucker highlights the trial
judge's discussion of three statements allegedly made by Juror No.
7 that were -- as the judge put it -- "problematic enough to
require our attention": (1) that "the case should wrap up quickly,"
(2) a "disparaging comment about defense counsel" in comparison to
the prosecutors, and (3) the incomplete statement of "I can't
believe that. That witness" before Juror No. 4 shut him up. The
way Tucker sees it, these three statements indicated prejudice
against the defense and the trial judge could not be confident the
other jurors were not affected by these comments. So, from
Tucker's vantage, the judge should have concluded there was
misconduct.
government states in its responsive brief, if the trial court had
understood the government to be requesting that it punt on the
issue, the trial judge clearly did not embrace this suggestion.
The judge's denial of the mistrial motion was based on his
conclusion that there was no misconduct but that it could and did
take remedial measures to remove any possible taint from the jurors
who had made comments heard by others.
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Tucker also argues that the remedial measures taken by
the judge -- excusing the two jurors and asking the remaining
jurors if they could remain impartial -- failed to cure the
problem. As his reasoning goes, the judge could not be 100% sure
that the comments did not affect the remaining jurors and therefore
the taint could not be completely cured.
The government rejoins that even if the judge was clearly
wrong to conclude there was no juror misconduct, there was no
effect on Tucker because the judge dismissed the two offending
jurors. The government also points out that the judge conducted
a thorough investigation into the allegations about the comments
and found no evidence that other jurors were affected.
Our review of the record shows that the trial judge
carefully considered the comments that Juror No. 4 reported she
overheard Juror No. 7 utter and reasonably concluded there were "a
lot of inferences and leaps involved in that that are not explicit
in the record and that were not corroborated by any other juror."
We note that while Juror No. 4 reported that several jurors shushed
Juror No. 7 after she heard him make a disparaging comment about
defense counsel, none of the other jurors, when asked, said they
heard the comment. And all reaffirmed their ability to render a
fair and impartial verdict.
Our review of the record also shows the trial judge bent
over backwards, likely doing more than was minimally necessary
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when a credible claim of jury misconduct is brought to the court's
attention. With diligence and sensitivity, he questioned each
juror at least twice and thoughtfully considered whether the
information his inquiries unearthed meant Tucker was entitled to
a mistrial. In addressing Tucker's concerns, he reasonably
exercised his discretion to excuse two jurors -- eliminating the
potential for them to behave improperly during deliberations.
Further, we perceive no patent abuse of discretion with his
ultimate conclusion that the remaining jurors were still qualified
to deliberate and that mistrial was unwarranted. He even went so
far as to read the transcript of his conversation with Juror No.
11 to himself and then into the record before securing both
parties' agreement that Juror No. 11 was qualified to deliberate
as a member of the jury. See Therrien, 847 F.3d at 18 ("Given the
circumstances, we are reassured that the trial court's inquiry and
repeated warnings effectively ascertained the extent and degree of
any prejudice suffered by Therrien, mitigated the effects of that
prejudice, and was 'appropriate and reasonable.'" (quoting United
States v. Balsam, 203 F.3d 72, 86 (1st Cir. 2000))); see also
Maldonado-Peña, 4 F.4th at 39-40 (concluding the trial judge's
careful and thoughtful consideration of a jury's potential bias
revealed through a note sent to the judge during trial resulted in
a "reasonable and appropriately measured" response); Therrien, 847
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F.3d at 18 n.11 (collecting cases addressing a trial judge's abuse
of discretion vel non in denying a motion for mistrial).
On the whole, the reported juror misconduct was quite
minimal. As the experienced trial judge aptly observed, it is
hardly a cause for any heightened concern that a juror might
briefly comment about the lawyers or the pace of the trial. There
was no suggestion that any juror was biased against any group or
person. Nor was there a suggestion that a juror misled the court
in voir dire. Nor was there any claim that material, extra-record
information was involved.
Suppressed Impeachment Evidence
In Tucker's second challenge to his convictions, he says
he was entitled to a new trial because the government had
suppressed impeachment information about one of its witnesses.
This information came to Tucker's attention when, a
couple of months after the jury returned the guilty verdicts,
Tucker sent a written request to the government for "evidence
probative to all sentencing issues." In its written response, the
government (memorializing a phone call it had already made to
defense counsel) disclosed that it had "inadvertently failed to
disclose possible impeachment information about" Morgan (who,
recall, testified about dating and working for Tucker as well as
about the other women who worked for him). The government
explained that the prosecutors had known prior to the trial that
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Morgan "had been arrested on state drug charges by the Manchester,
NH Police Department" but, at that time, had not intended to call
her to testify at Tucker's trial and so had not included her on
its witness list or disclosed her arrest to Tucker. A week before
trial, the government decided to call Morgan to testify but, "in
the whirlwind of trial preparation," forgot to disclose the state
arrest and charge information to Tucker. The letter also explained
that, approximately six weeks after trial, one of the federal
prosecutors noticed Morgan's name on an initial appearance hearing
calendar in the federal courthouse and "learned for the first time"
that his office had filed an indictment against Morgan based on
the state charge for the sale of one gram of fentanyl to one of
Manchester police's confidential sources.
In response, Tucker filed a motion for new trial pursuant
to Federal Rule of Criminal Procedure 33,8 asserting that the
failure to disclose Morgan's pretrial arrest, state charge, and
possible prosecution by the federal government9 violated the
8 Rule 33 of the Federal Rules of Criminal Procedure allows
the district court, "[u]pon the defendant's motion" to "vacate any
judgment and grant a new trial if the interest of justice so
requires." Fed. R. Crim. P. 33(a). The discovery of new evidence
falls squarely within this rule and "must be filed within 3 years
after the verdict." Fed. R. Crim. P. 33(b)(1). Tucker timely
filed his motion 7 months after the jury returned the guilty
verdicts.
9 Morgan's state felony charge was referred to the U.S.
Attorney's Office shortly after her arrest by the Manchester Police
Department, but the federal prosecutors (different prosecutors to
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government's obligations under Brady and Giglio,10 and arguing that
if this impeachment evidence had been disclosed prior to trial
then Tucker would have had a reasonable likelihood of a not guilty
verdict.11 The government did not dispute that it suppressed
"potential impeachment evidence" about Morgan but stressed the
"inadvertent" nature of the suppression and contended Tucker had
not been prejudiced by the nondisclosure because the evidence had
little impeachment value when examined against the trial judge's
pre-trial evidentiary rulings (in which he indicated he would allow
cross-examination about witnesses' prior convictions and pending
the ones responsible for Tucker's prosecution) did not decide to
pursue a federal charge against her until after Tucker's trial
ended.
10 "Under Brady, the government offends due process if it
causes prejudice to the defendant by 'either willfully or
inadvertently' suppressing 'exculpatory or impeaching' evidence in
its custody or control that is 'favorable to the accused.'" United
States v. Peake, 874 F.3d 65, 69 (1st Cir. 2017) (quoting United
States v. Connolly, 504 F.3d 206, 212 (1st Cir. 2007)); see
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). As we've
observed, in Giglio v. United States, 405 U.S. 150, 154 (1972),
"the Supreme Court applied Brady's disclosure obligation to
'information potentially useful in impeaching government
witnesses.'" United States v. Calderón, 829 F.3d 84, 88 n.3 (1st
Cir. 2016) (quoting United States v. Misla–Aldarondo, 478 F.3d 52,
63 (1st Cir. 2007)).
11 Tucker also argued in his Rule 33 motion that he was
entitled to a new trial on the combined basis of the Giglio
violation, other alleged less-than-timely discovery disclosures
prior to trial, trial counsel's allegedly deficient performance
during Morgan's cross-examination, and allowing all the witnesses
to be referred to by their first names only. These other alleged
grounds for Tucker's motion are not carried forward in his
appellate arguments.
- 22 -
charges but not prior arrests), the admitted impeachment evidence,
and other overwhelming testimony corroborating Morgan's.
Following a hearing, the trial judge denied Tucker's
motion, acknowledging the failure to disclose the pending charges
against Morgan likely denied Tucker "the opportunity to truly cross
[her] about that pro-[g]overnment bias" but also stating that these
impeachment points "would [not] have been significantly augmented
by cross-examination using the inadvertently withheld evidence."
The judge concluded that:
[F]urther evidence about a pending charge wouldn't have
added much to Tucker's impeachment of Morgan's
credibility [because t]here was already evidence that
she was testifying under immunity both on direct and
cross[,] . . . evidence that she lied to . . . [p]olice,
that she had a drug addiction, . . . was a drug addict,
had a prior conviction on her record.
In addition, he found that Morgan's testimony had been
"significantly corroborated" for each element of the three charges
against Tucker. The judge also expressed his frustration at the
sequence of events that led to the inadvertent suppression of the
evidence and the resulting questions the defendant and the public
could reasonably have about the fairness of the trial process,
even though his confidence in the outcome of the trial ultimately
was not shaken.12
12We agree. Of the two issues Tucker brings to us this one
is more troubling. Tucker spills a little ink arguing that the
trial judge should not have denied the new trial motion because
the judge himself thought Tucker was entitled to a new trial.
- 23 -
On appeal, Tucker asserts the trial judge's decision to
deny the new trial motion was simply wrong. In our review of
Tucker's claimed error, we review the trial judge's denial of a
new-trial motion for abuse of discretion, finding such "only when
no reasonable person could agree with the judge's decision."
Laureano-Salgado, 933 F.3d at 29. "This is as it should be," id.,the trial judge "has a special sense of the ebb and flow of the
trial . . . [so] we afford substantial deference to the [judge's]
views regarding the likely impact of belatedly disclosed
evidence," United States v. Peake, 874 F.3d 65, 70 (1st Cir. 2017)
(deletion and citations omitted). "We also keep in mind that the
new-trial remedy 'must be used sparingly, and only where a
miscarriage of justice would otherwise result.'" Laureano-
Salgado, 933 F.3d at 29 (quoting United States v. Conley, 249 F.3d
38, 45 (1st Cir. 2001)).
To prevail on a new-trial motion based on newly
discovered evidence, ordinarily the defendant must show "that the
Tucker is referring to the judge's comment that "if it were . . .
'up to me' I'd order a new trial." The way Tucker interprets this
comment, the judge thought "there was a reasonable probability of
a different result." But when the judge's full comment is read in
the context of his decision denying Tucker's motion for a new
trial, it's clear this statement was part of his express
frustration with the prosecutors and with the situation created by
their unintentional suppression of the impeachment evidence, and
that the judge was simply acknowledging that a feeling of
unfairness could linger for Tucker.
- 24 -
evidence (1) was either unknown or unavailable to him during the
trial; (2) could not have been uncovered sooner with diligence;
(3) is material, not just cumulative or impeaching; and (4) is
sufficiently compelling that it would probably produce an
acquittal at a retrial." Id. at 28 (string citing cases parroting
this well-established standard). This court has acknowledged this
is "a hefty burden" for the defendant. Id. When, however (and as
here), the defendant's new-trial motion is based on an alleged
Brady or Giglio violation, the third and fourth prongs are merged
and tweaked, creating a more defendant-friendly standard for
showing the defendant's prejudice. To be sure, the defendant "must
still satisfy the first and second elements (unavailability and
due diligence)," but "the third and fourth elements (materiality
and prejudice) [are replaced] with 'a unitary requirement that the
defendant need demonstrate only a reasonable probability that, had
the evidence been disclosed to the defense in a timely manner, the
result of the proceeding would have been different.'" Id. at 28-
29 (quoting Peake, 874 F.3d at 69). "So rather than having to
show 'actual probability that the result would have differed,' a
defendant need show only 'something sufficient to undermine
confidence' in the jury's verdict." Id. at 29 (quoting United
States v. Mathur, 624 F.3d 498, 504 (1st Cir. 2010)) (additional
internal quotation marks and citation omitted).
- 25 -
Both sides agree that the first two elements (evidence
was unknown to the defendant during the trial through no lack of
diligence on his part) are met. The point of contention centers
on the merged inquiry into materiality and prejudice and whether
there is a reasonable likelihood that the outcome of the trial
would have been different if Morgan's pending state charge and
potential prosecution by the feds had been disclosed prior to
trial. As the parties argue, this merged materiality/prejudice
inquiry turns on four factors distilled from our previous
discussions and assessments of the "reasonable likelihood"
standard: Whether the impeachment evidence (1) is strong, (2)
impeaches on a collateral issue, (3) is cumulative of other
evidence on the record, and (4) the impeachable witness's
substantive testimony is corroborated by other evidence in the
record. See United States v. Paladin, 748 F.3d 438, 444-48 (1st
Cir. 2014). As we have said before, "[t]he strength of impeachment
evidence and the effect of suppression are evaluated in the context
of the entire record to determine materiality," id. at 444 (citing
Conley, 415 F.3d at 189), "[e]vidence is immaterial where it is
cumulative or merely impeaches a witness on a collateral issue,"
id. (citing United States v. Dumas, 207 F.3d 11, 16 (1st Cir.
2000)), and "suppressed impeachment evidence has little probative
value if additional evidence strongly corroborates the witness's
- 26 -
testimony the suppressed evidence might have impeached," id.(quoting Conley, 415 F.3d at 189).
Tucker argues each factor cuts in his favor; the
government disagrees for all but one factor. We start our
discussion with the factor on which the parties do agree: that
the suppressed impeachment evidence was not collateral. Evidence
is collateral when it is not "relevant for a purpose other than
mere contradiction of the . . . [witness's] . . . in-court
testimony." Id. at 448 (quoting United States v. Beauchamp, 986
F.2d 1, 4 (1st Cir. 1993)). This court has indicated, however,
that a "witness's self-interest or motive to testify falsely is
generally considered to be a non-collateral issue." Beauchamp,
986 F.2d at 4. Tucker contends that the suppressed impeachment
evidence was not merely collateral because it went directly to
Morgan's credibility as a key witness and that, without this
impeachment evidence, the jury was left with the misleading
impression that she had no ongoing motive for bias in favor of
pleasing the government. The government agrees that the suppressed
information here is not collateral. We agree with the parties,
see id., and move on.
The strength of the suppressed evidence factor considers
whether the impeachment value is "merely marginal." Paladin, 748
F.3d at 444 (quoting Mathur, 624 F.3d at 505). If the value is
marginal, then the withheld evidence will be "manifestly
- 27 -
insufficient to place the trial record in 'such a different light
as to undermine confidence in the verdict.'" Id. (quoting Mathur,
624 F.3d at 505). Tucker again asserts that the suppressed
impeachment evidence would have revealed the depth of Morgan's
potential for bias in that Tucker was denied the opportunity to
argue "that her criminal conduct was ongoing and that she had a
reason to shade her testimony in favor of the government." He
says that the district court was wrong to conclude that the
suppressed evidence wouldn't have increased any doubt of Morgan's
credibility because a motive for bias at the time of the trial
testimony is different than other forms of bias inherent to a
witness as a result of their life experiences (e.g., Morgan's drug
addiction and previous convictions).
For its part, the government contends that the potential
impeachment value of the suppressed evidence was "weak" because
the jury actually heard Morgan had a pending felony charge at the
time of her testimony (though not the nature of the charge or that
it was a state case and not (yet) also a federal prosecution) and
her acknowledgment that her testimony in this case wouldn't affect
the result of that pending charge. Here's how some of the
questioning played out at trial: At the beginning of Morgan's
testimony, the government asked her about her criminal history.
Q. Now, you have a conviction for felony possession of
drugs; is that right?
A. Yes.
- 28 -
Q. And was there an occasion in Las Vegas where you
gave a false name to a law enforcement officer?
A. Yes.
Q. And you currently have a pending felony, right?
A. Yes.
Q. And is it your understanding that no promises are
being made in exchange for your pending felony?
A. Yes.
Q. So, you understand that your testimony today is not
going to impact that, right?
A. Yes.
. . .
Q. Okay. So, Morgan, I'm going to ask you some
questions that, if you answer them truthfully, may
incriminate you.
A. Okay.
Q. And you are aware that you've been given immunity
today, right?
A. Yes.
Q. So, you won't be prosecuted for what you testify
about today. Do you understand that?
A. Yes.
Q. But you also understand that you must testify
truthfully today?
A. Yes.
In addition, partway through Morgan's direct testimony, she
answered questions about the time New Hampshire police pulled over
a car she was riding in and she "got arrested with [Tucker's]
drugs."
Tucker's cross-examination did not ask any follow-up
questions about her conviction or pending felony charge. Instead,
the cross focused on Morgan's activities while working for Tucker
and primarily explored why she had not told the police (when she
had contact with them) about the harm she claimed she suffered
- 29 -
from him as well as whether she worked for another pimp during the
same time period she worked for Tucker.
Responding to Tucker's assertions about the strength of
the suppressed impeachment evidence, the trial judge called it
"not particularly strong," a characterization we agree with given
that the jury heard the fact of the pending felony charge and
Tucker had an opportunity (even if he didn't use it) to explore it
during cross. See Paladin, 748 F.3d at 444 (confidence in a
verdict is not undermined by suppressed impeachment evidence of
marginal value). The trial judge next examined whether the new
information was cumulative of impeachment evidence in the trial
record or whether Morgan's testimony was significantly
corroborated. We examine these factors next.
Starting with cumulativeness, "[s]uppressed evidence
that is cumulative of evidence presented at trial is immaterial."
Paladin, 748 F.3d at 446 (quoting United States v. Avilés-Colón,
536 F.3d 1, 19 (1st Cir. 2008)). The inquiry here focuses on
whether the witness to whom the withheld impeachment evidence
applies was "already impeached at trial by the same kind of
evidence." Id. (quoting Conley, 415 F.3d at 192) (deletion and
emphasis omitted).
Tucker argues the suppressed information about Morgan's
pending charge was not cumulative of other impeachment evidence
presented at trial as the government itself asked Morgan whether
- 30 -
she had any prior convictions or contact with the justice system.
Morgan answered by admitting to a few prior run-ins with the law.
She acknowledged a prior conviction for felony possession of drugs,
a time when she had given a false name to a police officer in
Vegas, and to a pending felony charge, though the government did
not ask for details of any of these contacts with the justice
system and Morgan did not offer any additional details. Tucker
homes in on the difference between using a prior conviction to
impeach Morgan's credibility and a pending prosecution as motive
for testifying in a way that will please the government. The pro-
government bias is even worse here, says Tucker, because the same
office prosecuting Tucker had been considering prosecuting Morgan
for the conduct underlying the state felony drug charge that Morgan
knew was pending at the time of trial. Tucker insists that his
trial defense counsel would have structured Morgan's cross-
examination differently had this key impeachment evidence not been
suppressed.
Not so fast, counters the government. Morgan could only
be biased in favor of making a good impression on the federal
prosecutors if she knew they (or their office) were considering
their own prosecution based on the alleged conduct underlying her
pending state charge, but there was no indication that she knew
before or during her trial testimony that her state charge had
been referred to the U.S. Attorney's office. Regardless, continues
- 31 -
the government, the jury knew Morgan was testifying under an
immunity agreement,13 so it was aware that Morgan had a current
relationship with the prosecution and a reason to curry favor with
it. The additional information about the possibility of a federal
charge was therefore, according to the government, cumulative of
all the other impeachment fodder indisputably on the record.
We believe the government has the better argument here.
Whether or not Tucker picked up on the pending felony inquiry
during Morgan's direct examination, he knew about the immunity
agreement and the potential bias this could create because Morgan
would be motivated on this front to keep the government happy.14
The trial judge provided a special instruction to the jury
13
after Haley's testimony and before Morgan's about what it means to
testify under the promise of immunity and reiterated the
instruction after Morgan's testimony: "[Y]ou should determine
whether or not the witness's testimony has been colored in any way
because of the grant of immunity."
14We also note that the trial judge explicitly indicated
pending charges were ripe fodder for challenging a witness's
credibility during cross-examination. During the final pre-trial
conference, the trial judge (when discussing the admissibility of
prior convictions and pending charges) said that "pending charges
go to bias, go to credibility, even if it's in another
jurisdiction. . . . [I]t's fair cross-examination to ask a witness
if they are facing criminal charges somewhere and the usual follow-
up about wanting to curry favor with law enforcement. . . . [Y]ou
can inquire as to pending charges on cross-examination but not as
to the nature of those charges." Morgan testified two days later.
There is no doubt that Tucker had several bases for impeaching
Morgan's credibility. That he did not either explore or exploit
the information about her then-pending charge does not help Tucker
meet his burden to show a reasonable probability that had the
suppressed evidence been revealed before or during trial, the jury
- 32 -
See Paladin, 748 F.3d at 447 ("A prejudicial Brady violation has
not been effected, however, where the defendant already had
available to him evidence that would have allowed for impeachment
on the same or similar topics.") As in Paladin, the details (if
deemed admissible at trial) about Morgan's pending state felony
and referral to the federal prosecutors for consideration "would
have permitted one additional avenue to accomplish" showing the
jury that Morgan had a motive to testify in a way to please the
government and was, thus, not a credible witness. See id. We
therefore agree with the trial judge's conclusion that the
suppressed evidence was cumulative of other impeachment evidence.
We proceed now to the last factor of our four-point
inquiry: Corroboration. As we mentioned above, "[s]uppressed
impeachment evidence has little probative value if additional
evidence strongly corroborates the witness's testimony the
suppressed evidence might have impeached." Id. at 448 (quoting
Conley, 415 F.3d at 189). Tucker stresses that Morgan's testimony
was crucial to the count for trafficking of a minor because she
was the only witness to provide any detail about how Tucker knew
or should have known that Jasmine was a minor during the time
would have reached a different verdict. See Paladin, 748 F.3d at
447.
- 33 -
period in question.15 The government responds that both Jasmine
and Haley provided corroborative testimony that Tucker knew
Jasmine was underage, so the jury could easily have reached the
same verdict even if it ultimately discredited Morgan's testimony.
Let's take a look at what evidence the trial produced on the issue
of corroboration.
As we summarized above, Morgan testified that Tucker
told her Jasmine was only 17 years old after the three had been
stopped on the highway and Morgan got arrested for the drugs found
in the backseat of the car. Tucker was "pissed" because the needle
found in the backseat had been Jasmine's, but she hadn't fessed up
to claim ownership. Morgan understood from Tucker that had Jasmine
owned up then she wouldn't have been in much trouble because of
her age (i.e., she would have been treated as a juvenile offender).
When Jasmine was on the stand, she testified that she had told
Tucker her age and he "kind of avoided it." Haley, for her part,
testified that when she learned Jasmine was underage, she tried to
talk to Tucker about it but he "told me that she was of age and I
15During the trial judge's oral decision denying Tucker's
motion for new trial, he went through each element of each count
and stated which witness had also provided testimony from which
the jury could have concluded the element had been met. As the
government points out, Tucker only argues about the lack of
corroboration with respect to the knowledge element of the
trafficking-of-a-minor count, so we follow his lead and examine
whether there was in fact corroborating testimony on this element
only.
- 34 -
got into an argument with him." She then stated she was present
when he did find out Jasmine was in fact underage and said he did
not do anything with the information.
Tucker tries to convince us that Haley and Jasmine's
testimonies cannot be considered corroborative of Morgan's
testimony because Morgan provided greater detail about Tucker's
knowledge. While neither Haley nor Jasmine provided a detailed
context for Tucker knowing Jasmine was underage, each directly
stated that she was present when he learned Jasmine's age.16 This
is consistent with Morgan's testimony that, during the relevant
time period, Tucker knew Jasmine's age, even if not exactly
duplicative of his acknowledgement of his knowledge. The absence
of the detail in Haley's and Jasmine's testimonies does not detract
from their uncontroverted statements that Tucker knew Jasmine's
age and corroborated Morgan's testimony on this point.17
16When the trial judge discussed the testimony in the record
that corroborated Morgan's, he mentioned Haley "testif[ied] that
Jasmine couldn't buy cigarettes because she was under 18," but, as
Tucker has been quick to point out, this is a part of Haley's
testimony to which the judge had sustained an objection on hearsay
grounds. Tucker suggests this was a clearly wrong finding of fact
on which the trial judge relied. A close look at Haley's testimony
reveals she made that comment when she was describing when and how
she knew Jasmine was underage. So the judge's misrecollection of
the record has no bearing on what Tucker knew and when, but Haley's
other (and admitted) testimony corroborated Morgan's about the
fact of Tucker's knowledge.
17We also acknowledge that, during cross-examination of these
witnesses, Tucker's trial counsel may have, for strategic reasons,
not wanted to probe the testimony about Tucker's knowledge of
- 35 -
Summing up the factors in controversy, we find the
suppressed impeachment evidence about Morgan was immaterial
because the evidentiary strength was weak, the information about
her pending state charge and her potential federal charge was
merely cumulative of other impeachment evidence on the record, and
Morgan's testimony about Jasmine's age was sufficiently
corroborated by other witnesses. See id. at 444. Accordingly,
though the undisclosed information was not collateral we
nonetheless conclude that its suppression does not undermine the
confidence in the jury's guilty verdicts because there was not a
reasonable probability of a different outcome had the government
produced the information about Morgan's pending state charge
before or during trial. See id. at 450. The trial judge did not,
therefore, abuse his discretion when he denied Tucker's motion for
a new trial. See Laureano-Salgado, 933 F.3d at 28-29.
Last Words
All that is left to say is Tucker's convictions are
affirmed.
Jasmine's age and the circumstances surrounding his knowledge.
But the weight to be given to properly admitted evidence was up to
the jury. See United States v. Cruz-Ramos, 987 F.3d 27, 38 (1st
Cir. 2021) ("[D]etermining where the truth lies is the sort of
work that falls squarely within the jury's province." (quoting
United States v. Nascimento, 491 F.3d 25, 46 (1st Cir. 2007))).
- 36 -