United States v. Spencer

United States Court of Appeals
For the First Circuit
No. 16-1104
UNITED STATES OF AMERICA,
Appellee,
v.
BARRY SPENCER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
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.
August 23, 2017
BARRON, Circuit Judge. 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.
I.
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
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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.
A.
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
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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
1 Morrison was initially charged together with Spencer, but
Morrison pleaded guilty to the three counts against him in the
first superseding indictment. The second superseding indictment
thus charged Spencer alone.
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sentenced to 60 months' imprisonment and 36 months' supervised
release.
B.
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
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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
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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"
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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.
II.
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.
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A.
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
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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 States v. 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 States v. 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 States v. Imbruglia, 617 F.2d 1, 7 (1st Cir. 1980) (noting
that the "district judge, who presided at appellant's trial,
reviewed appellant's newly discovered evidence and concluded it
did not justify the granting of a new trial" and concluding that
"[h]is assessment deserves regard").
B.
To assess the merits of the District Court's Brady ruling
as to materiality, we first need to set forth in more detail
exactly what the District Court determined the undisclosed
evidence was and how the government's nondisclosure of that
evidence came to light. And so we now turn to that task.
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At trial, Spencer's attorney sought to draw the jury's
attention to the fact that the government had produced two
different "certificates of drug analysis" that were prepared and
signed by Claire Rimkus, the chemist at the State Police Laboratory
who was responsible for analyzing the sample from the substance
that Casallas allegedly had purchased from Morrison. Both
certificates were ultimately admitted into evidence.
Each certificate stated that the sample "was found to
contain Cocaine . . . present in the base form." Moreover, each
certificate identified the same "agency case number" (often
referred to as a "cc" or "control" number) that had been assigned
to the sample by the BPD. That control number was 130164540.
Officer Sean Flaherty -- the BPD officer responsible for
processing the substance alleged to be the cocaine base that
Casallas purchased from Morrison -- explained at trial that this
control number was generated by the BPD's "Computer Aided Dispatch
system" on March 20, 2013, once Flaherty had received the sample
from Keenan, and before Flaherty had completed the necessary intake
forms and placed the sample in a heat-sealed bag. Flaherty also
explained at trial that the purpose of assigning this control
number was to ensure that "every piece of evidence . . . is
tracked."
The problem was that the first certificate of drug
analysis that Rimkus prepared, dated September 26, 2013, indicated
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that the "date of incident" associated with the sample was May 26,
2013. That latter date was the date of Spencer's arrest. It was
not the date of the alleged transaction between Casallas, the
undercover officer, and Morrison, the co-defendant. The second
certificate was dated April 4, 2014. That certificate indicated
that the "date of incident" associated with the sample was March
20, 2013. That date was the date of the alleged transaction.
In light of the fact that there were two certificates,
and that only the latter one correctly stated the date of the
alleged incident, Spencer's counsel asked Rimkus, on cross-
examination, about the discrepancy. Rimkus responded that, after
she had prepared the first certificate, "it was discovered that
the Boston Police had essentially given [her] the wrong date of
the incident when they submitted the evidence." Rimkus explained
that she did not know the reason that the BPD had given her the
wrong date originally. Rather, she explained, she "simply
receive[d] a drug evidence submission form [sometimes referred to
as an “SP-295” form] with suspect name, incident date, incident
number, and that is the information that [she] put on [her]
report." Rimkus further testified that, with the new information
in hand, "[she] then prepared a corrected report," with "[t]he
only difference . . . being a different date of incident."
Accordingly, Rimkus testified that she prepared a second
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certificate, dated April 4, 2014, which indicated that the correct
"date of incident" associated with the sample was March 20, 2013.
On the basis of the fact that there were two certificates
setting forth different dates of incident, defense counsel
contended in the closing argument to the jury that the government
had conducted a "sloppy investigation" and asserted that there
were "a whole host of reasons why you should not be persuaded
beyond a reasonable doubt that Barry Spencer is guilty of being a
dope dealer." After the case had been submitted to the jury, the
jury requested a "signed/notarized" copy of the April 4
certificate. "[N]o such copy was admitted into evidence," although
the jury did have a copy of both certificates, just not a
"notarized copy of the corrected version." The jury then convicted
Spencer.
Approximately two weeks later, on May 4, 2015, Spencer
filed, pro se, his motion for a new trial in which he raised the
Brady claim. In that motion, Spencer asserted -- presumably on
the basis of Rimkus's testimony that "it was discovered that Boston
Police had essentially given [her] the wrong date of incident" --
that Rimkus "testified" at trial that she had "received a call and
was told to change the date [of incident]" on the certificate.
Spencer further asserted that the government, in violation of
Brady, had failed to disclose evidence that "could [have] been
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used to impeach . . . the caller who told Claire Rimkus to change
the date on the sample."
On May 19, 2015, the District Court held a hearing on
that motion and on Spencer's separate motion to appear pro se at
that hearing and during sentencing. At the hearing, Spencer
(appearing pro se) again asserted that the government, in violation
of Brady, had not turned over evidence concerning a phone call
that Spencer alleged had been made to Rimkus instructing her to
change the date of incident on the lab certificate.
In response to that assertion by Spencer, the Assistant
United States Attorney ("AUSA") in charge of Spencer's
prosecution, John Wortmann, revealed that, in fact, he had
telephoned Rimkus on April 3, 2014, to inform her about the error
in the first certificate with respect to the date of incident.
Wortmann explained that Rimkus had no knowledge of the actual date
of incident and that Rimkus had simply relied on the BPD to supply
that information. Specifically, Wortmann stated that "[t]he lab
doesn't know where the drugs -- what date the drugs [were]
purchased. They can't possibly know that. And the clerical error
was committed when the drugs were submitted [by the BPD] to the
lab." As a result, Wortmann stated that he had simply contacted
Rimkus to correct a "clerical error" on the drug certificate
"because the drug lab would have no basis for knowing one way or
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the other." Wortmann suggested that he had also sent a follow-up
e-mail to the BPD after the phone call with Rimkus.
The District Court deemed the government's failure to
disclose its "involvement in revising a key exhibit" "troubling."
On June 4, 2015, the District Court sua sponte ordered an
evidentiary hearing. Two weeks later, the government produced a
"Case Conversation Log Report" that had not previously been
produced to Spencer in which, as the District Court highlighted,
"State Drug Lab employees, including Ms. Rimkus, recorded many .
. . of their conversations with the police and prosecutors."
The evidentiary hearing took place on July 2, 2015.
During that hearing, Rimkus provided additional testimony. This
testimony, the District Court found, "corroborat[ed]" the
government's account of the contact between Wortmann and Rimkus,
in which Wortmann telephoned Rimkus to correct the incorrect date
of incident set forth on her initial certificate. The District
Court also noted that Rimkus testified that, after speaking with
Wortmann, Rimkus called the BPD's evidence unit to confirm the
incident date.
Approximately a week after the July 2 evidentiary
hearing, on July 10, 2015, the District Court ordered the
government to produce the follow-up e-mail to the BPD that Wortmann
had testified at the May 19 hearing that he had sent to Rimkus.
The District Court ultimately found that, "[a]fter a thorough
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search of the AUSA's e-mails, the government concluded that he
misspoke and no such email exchange occurred."
C.
On the basis of the record that had been developed, the
District Court denied Spencer's Brady-based motion for a new trial.
The District Court identified two distinct types of evidence that
the government had failed to disclose -- (1) the State Police
Laboratory call log, and (2) other evidence, including the AUSA's
own testimony, concerning his "communications with Ms. Rimkus more
generally." The District Court concluded that, as to each category
of undisclosed evidence, the evidence was not material under the
standard articulated in Strickler and thus that Spencer's Brady
claim failed.
The District Court began by addressing the government's
failure to turn over the call log. The District Court stated that
this evidence of the prosecutor's "close involvement in the
Certificate's preparation" was, per the first prong of the
Strickler test, "favorable" to Spencer. Specifically, the
District Court concluded that had the call log been produced, the
fact that it "describes . . . Ms. Rimkus's entry for April 3, 2014
[that] indicates that the AUSA told her about a mistake on the
Certificate and where it came from . . . may well have called Ms.
Rimkus's conclusions into doubt." That was so, the District Court
elaborated, particularly given "the jury's question about chain of
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custody, the proof of which depended largely on the documentation
implicated in the instant motion."
The District Court also ruled in Spencer's favor as to
Strickler's second prong, which concerned whether evidence of the
call log's existence was suppressed, either willfully or
inadvertently, by the government. In this regard, the District
Court concluded that, although the United States Attorney's Office
was not aware that the State Police Laboratory had a practice of
logging calls from prosecutors, Rimkus was nevertheless "part of
the prosecution team." As a result, "because [Rimkus] knew about
the call log well in advance of Mr. Spencer's first trial, the
government's 'we didn't know' excuse for failing to produce it to
the defense fails."
But, in considering the final, prejudice prong of the
Strickler analysis, the District Court ruled against Spencer,
though "only by the narrowest of margins." The District Court
explained that, "[a]t trial, the government presented evidence
that the alleged drugs purchased from Mr. Morrison, in the
transaction where Mr. Spencer stood watch, were assigned a
control . . . number by the [BPD]." And, the District Court
explained, "[t]he evidence showed that the sample bearing [that]
control number was sent to Ms. Rimkus at the State Drug Lab, and
that she analyzed the sample bearing that control number in
preparing her original Drug Analysis Report." As a result, the
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District Court emphasized that, regardless of any error by the BPD
concerning the date of incident on the first form, the "control
number associates the sample purchased from Mr. Morrison on March
20, 2013 with the sample that tested positive for crack cocaine at
the lab."
Based on this reasoning, the District Court rejected
Spencer's contention that there was a reasonable probability that
the call log, had it been disclosed, would have been sufficient to
undermine confidence in the jury's verdict. As the District Court
put it, "no reasonable jury could have concluded, in light of the
control number records, that the chain of custody was broken."
For that reason, the District Court concluded that the
"government's failure to produce the call log . . . [,] while
questionable, was not an actionable Brady violation."
The District Court then turned to the government's
failure to disclose additional evidence regarding Wortmann's
communications with Rimkus that might have shed further light on
the nature and extent of Wortmann's intervention. This additional
evidence included firsthand accounts of the conversation between
Wortmann and Rimkus, such as the one that Wortmann provided during
the May 19 hearing before the District Court. The District Court
concluded that this evidence, too, was favorable to Spencer, as it
"might have been used to paint Ms. Rimkus as sloppy, at best, or
a pawn of the prosecution, at worst." Likewise, "because the AUSA
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himself was involved" in his communications with Rimkus "and
necessarily knew they happened," the District Court concluded that
the government willfully suppressed this evidence concerning
Wortmann's communications with Rimkus.
Nevertheless, turning to the third prong of the
Strickler test, which concerns the materiality aspect of Brady,
the District Court ruled against Spencer. The District Court again
emphasized the importance of the fact that the control
number -- common to both the initial certificate (which had the
wrong date of incident) and the corrected certificate (which had
the right date of incident) -- matched the sample Rimkus analyzed
to the substance obtained during Casallas's undercover purchase.
Because "government counsel could have relied only upon the control
number to show the chain of custody and integrity of Ms. Rimkus's
test results[, n]o reasonable jury could have doubted that the
sample delivered to Ms. Rimkus was the same one purchased from Mr.
Morrison on March 20, 2013."
D.
Spencer contends, in challenging the Brady ruling below,
that the undisclosed evidence -- whether considered individually
or in combination -- would have enabled him to "cast doubt" on the
link between Spencer and the sample Rimkus determined contained
cocaine base. Spencer further contends that the disclosure of
this evidence at trial would have rendered a different outcome
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reasonably probable. Spencer thus contends that the District Court
abused its discretion in denying his motion for a new trial on the
ground that the undisclosed evidence was not material within the
meaning of the third prong of the Strickler test for identifying
a Brady violation.
In support of that contention, Spencer makes the
following points. Spencer contends that the withheld evidence
would have enabled him to "establish a lack of confidence" in the
jury's verdict by sowing doubt as to whether the sample Rimkus
tested was taken from the substance Casallas purchased from
Morrison on March 20. In this regard, Spencer argues that the
District Court wrongly relied on the "infallibility" of the control
number. On Spencer's account, by showing the role that the
prosecutor played in getting Rimkus to change the date of incident,
the withheld evidence "could have shown the possibility that [the
control number] was incorrect or even manufactured as well."
Spencer also emphasizes the District Court's statement -- with
respect to the second Strickler prong -- that the withheld evidence
might have "been used to paint Ms. Rimkus as sloppy, at best, or
a pawn of the prosecution, at worst."
In further support of his materiality argument, Spencer
contends that the withheld evidence must be considered in light of
a number of background features of the case. Spencer points, in
particular, to Rimkus's relative inexperience, the time lag before
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the submission of the sample by the BPD to the State Police
Laboratory, and an additional error on the form that the BPD used
to submit evidence to the State Police Laboratory, which concerned
how the sample had been obtained by the BPD.2 And, Spencer contends
that his case is closely analogous to Flores-Rivera. There, we
overturned a district court's conclusion, under Brady, that
certain undisclosed evidence was not material. 787 F.3d at 20.
Finally, Spencer notes, his first trial ended in a mistrial, with
one of the jurors expressing significant unease with the case
against Spencer. On this basis, Spencer argues that, had that
first jury known of the undisclosed evidence, "there would have
been a 'reasonable probability' of an acquittal."
E.
No doubt, Spencer could have seized on the evidence that
Wortmann contacted Rimkus and had her correct one aspect of the
certificate that she prepared -- the date of incident -- to suggest
that the control number was "incorrect or even manufactured." But,
we do not see what basis we have on this record for second-guessing
the trial judge's conclusion about whether the lost opportunity to
2 The BPD submitted the substance to the State Police
Laboratory for analysis on September 17, 2013, approximately six
months after Casallas made the purchase from Morrison. In
addition, as the District Court noted, the submission form used by
the BPD to submit the sample for analysis to the State Police
Laboratory wrongly indicated that the "sample was the result of a
'[s]eizure'" rather than a "'purchase,' which was another option
on the form."
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make that suggestion to the jury renders the nondisclosure
material. See Flores-Rivera, 787 F.3d at 17 (noting that "[w]e do
not . . . automatically require a new trial whenever a combing of
the prosecutors' files after the trial has disclosed evidence
possibly useful to the defense but not likely to have changed the
verdict" (quoting United States v. Dumas, 207 F.3d 11, 15 (1st
Cir. 2000) (alterations in original)).
As we have explained, the undisclosed evidence shows no
more than that Wortmann contacted Rimkus on April 3, 2014, in order
to correct the date of incident on Rimkus's certificate of drug
analysis. But, the record shows that it was a BPD officer,
Flaherty, who, much earlier, on March 20, 2013, assigned a control
number to the substance that Flaherty had received from another
BPD officer, Keenan, and that the same control number that Flaherty
had assigned was on the sample that Rimkus analyzed. In addition,
the record shows that Rimkus relied, in preparing her certificates
of drug analysis, on an error on the SP-295 form that the BPD used
to submit evidence to the State Police Laboratory. The record
does not show that Rimkus relied on any materials that the BPD
prepared in the course of initially processing and logging
Casallas's undercover purchase. In light of these aspects of the
record, the District Court could reasonably conclude that the fact
of the prosecutor's contact with Rimkus to correct the error
regarding the date of incident on the initial certificate would
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provide no more than a speculative basis for a conclusion that the
control number itself was "incorrect or even manufactured."
We also conclude that it was reasonable for the District
Court to conclude that, even if the control number was not
"incorrect or even manufactured," the undisclosed evidence does
not suffice to cast doubt on whether Rimkus, due to her alleged
sloppiness or her ties to the prosecution, tested the wrong sample.
Spencer does not dispute, after all, that Rimkus conducted her
own, independent analysis of the substance that she then determined
was cocaine base. And, nothing about the undisclosed evidence
shows Rimkus to be sloppy or unprofessional in her work as a
chemist for the State Police Laboratory. Rather, the undisclosed
evidence just shows that Rimkus corrected erroneous information
that had been given to her and that she had no reason to know was
wrong. As a result, Spencer can only speculate that the substance
that Casallas purchased from Morrison was "removed or changed
between March 20, 2013, and September 2013 when it was allegedly
tested by Ms. Rimkus."
We thus conclude that the District Court did not abuse
its discretion, as it reasonably determined that the withheld
evidence did not generate a reasonable probability of a different
outcome at trial by calling into question the "chain of custody"
of the sample or the "integrity of Ms. Rimkus's test results."
And this conclusion is consistent with Flores-Rivera.
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The undisclosed evidence in that case consisted of (1)
a letter to the prosecutor from the star witness to the crimes,
and (2) notes that the star witness had made concerning
conversations he had had with two other cooperators while all three
were in prison. We explained that the notes, which directly cast
doubt on the star witness's testimony regarding whether he had
coordinated with the other witnesses, constituted the "only
evidence that would have eliminated the claim that the testimony
[of the star witness and the other two cooperators] was entirely
uncoordinated," and that the letter to the prosecutor "would have
provided a uniquely colorful tool for both attacking [the star
witness's] motivation and raising the prospect that [he] and the
prosecutor were hiding something from the jury." Flores-Rivera,
787 F.3d at 20.
The undisclosed evidence in this case, however, does not
cast doubt in any similarly direct way on any similarly key
representation. As we have noted, Rimkus explained that she
corrected the first certificate because "it was discovered" that
the first certificate was wrong with respect to the date of
incident on that certificate. But, the undisclosed evidence in no
way undermines that representation. And, similarly, it is not
clear how the undisclosed evidence casts meaningful (as opposed to
merely speculative) doubt on the credibility of any other witness
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who testified about any aspect of the case that bears on the
integrity of the control number.
Moreover, while the testimony of the cooperating
witnesses in Flores-Rivera that could have been undermined by the
undisclosed evidence was "both essential to the convictions and
uncorroborated by any significant independent evidence," id. at
18, Rimkus's testimony was not similarly uncorroborated. Rather,
her testimony was supported by Casallas's and Keenan's testimony
concerning the undercover drug purchase, Flaherty's testimony
concerning the BPD's intake process, and the documentary evidence
that indicated that the date of incident on the SP-295 form used
by the BPD to submit the sample for analysis to the State Police
Laboratory contained the error as to the date of incident that was
then reproduced on Rimkus's initial certificate of drug analysis.
Additionally, at both the trial and the evidentiary hearing on
Spencer's Brady-based motion, Rimkus's testimony, although phrased
in a manner that omitted mention of the AUSA's involvement, was
consistent with Wortmann's.
To be sure, the District Court did state that the
question of prejudice from the non-disclosure failed "only by the
narrowest of margins." And Spencer was being retried following a
mistrial. But, a district court receives no less deference in a
close case than in a clear-cut one. In fact, it is in the close
case that the fact that our review is for abuse of discretion
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matters most. We also agree with the government that it is hard
to conclude anything about what might have been in the mind of
Spencer's first jury -- let alone Spencer's second jury -- from
the fact of the initial mistrial alone. Thus, the fact that
Spencer was being retried does not, at least on this record, lead
us to conclude that we must substitute our own judgment for that
of the District Court as to the resolution of what the District
Court determined was a close call.3
III.
Spencer makes three additional challenges on appeal. We
consider, and reject, each in turn.
A.
Spencer contends, first, that the District Court erred
in admitting certain testimony from both Keenan and Casallas that
Spencer argues was unduly prejudicial to him. In challenging the
3 Spencer separately contends that his trial counsel provided
ineffective assistance because he did not move for a mistrial or
perhaps a voir dire of Rimkus after she testified. But, "[w]e
have held with a regularity bordering on the monotonous that
ineffective assistance of counsel claims, which require a showing
of deficient attorney performance and prejudice to the defendant,
must originally be presented to, and acted upon by, the trial
court . . . because an appellate court usually is ill-equipped to
handle the fact-specific inquiry that such claims often require."
United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir. 2008)
(citations omitted). Spencer presents no developed argument as to
how, in his words, "counsel's failures in this regard are [so]
manifestly apparent from the record" such that we should depart
from this "well-settled rule," id., and so we do not consider his
ineffective assistance claim.
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decision to allow these portions of testimony at trial, Spencer
contends that Keenan and Casallas were "fact witness[es] entitled
to testify as to what [they] observed Spencer doing," rather than
qualified experts under Rule 702 of the Federal Rules of Evidence,
who would have been permitted to contextualize Spencer's behavior
in light of their professional experience.4 In consequence,
Spencer argues that he was prejudiced by the admission of the
portions of Keenan's and Casallas's trial testimony in which they
testified not merely to what they observed during the incident but
to their own views as to why, in light of their experience, what
they observed evidenced the committing of a "tandem" drug crime.
Thus, Spencer contends that these portions of testimony were
"improperly admitted under Rule 403" of the Federal Rules of
Evidence.5
With respect to Keenan's testimony, Spencer notes that,
when asked whether, based on Keenan's "training and experience,"
it was "unusual for drug dealers to work in tandem out on the
street," Keenan responded that it was not, in fact, unusual. And,
4 Rule 702 provides that "[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise" under certain
specified conditions. Fed. R. Evid. 702.
5 Rule 403 provides that the trial "court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence." Fed. R. Evid. 403.
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Spencer points out, Keenan then elaborated: "[t]hey often do it
because . . . one guy may go out and gather the customers up while
the person having the drugs doesn't have to expose himself as
much."
With respect to Casallas's testimony, Spencer highlights
the portion in which Casallas stated that he approached Spencer
and "asked him if he was on" and then explained that being "on" is
"street terminology usually used by drug users and drug dealers to
determine whether the person is actually selling drugs." Spencer
also objects to Casallas's testimony in which Casallas stated that
Spencer was "scanning the area, looking at cars as they drove by,"
and then explained that he believed, on the basis of his
experience, that Spencer was "doing counter-surveillance."
Even assuming, however, favorably to Spencer, that our
review of the District Court's evidentiary rulings with respect to
the challenged testimony is for abuse of discretion, United States
v. Dunston, 851 F.3d 91, 96 (1st Cir. 2017), we see none here.6
6At trial, Spencer's counsel objected to Keenan's testimony
as follows: "Objection, your Honor. Relevance." The District
Court then overruled the objection. Later, Spencer's counsel
objected to the first portion of Casallas's testimony that he now
challenges on appeal without specifying a basis for the objection,
and was again overruled. Spencer's counsel did not object to
Casallas's testimony that Spencer was performing "counter-
surveillance, although Spencer's counsel did object to Casallas's
explanation of what Casallas meant by the term "counter-
surveillance," and the District Court sustained that objection.
The government contends on this basis that Spencer's challenges to
the District Court's admission of these portions of Keenan's and
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We have previously explained that opinion testimony by a witness
who has not been qualified as an expert witness under Rule 702 may
nevertheless be admissible under Rule 701 of the Federal Rules of
Evidence provided that such testimony is "'rationally based on the
perception of the witness,' [is] 'helpful to . . . the
determination of a fact in issue,' and [is] 'not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702.'" United States v. Santiago, 560 F.3d 62, 66
(1st Cir. 2009) (second alteration in original) (quoting Fed. R.
Evid. 701). We have explained further that the touchstone for the
admissibility under Rule 701 of such lay-opinion testimony is
whether the testimony has the "potential to help the jury." United
States v. Albertelli, 687 F.3d 439, 447 (1st Cir. 2012).
Under this standard, we have deemed testimony
inadmissible "when the jury can readily draw the necessary
inferences and conclusions without the aid of the opinion." United
States v. Etienne, 772 F.3d 907, 919 (1st Cir. 2014) (emphasis in
original) (citations omitted). We have also explained that helpful
testimony is typically "based on the lay expertise a witness
personally acquires through experience, often on the job." United
Casallas's testimony may be reviewed only for plain error. Because
we conclude that the testimony is admissible even on the more
defendant-friendly abuse-of-discretion standard, we need not
decide whether Spencer's counsel's objections were sufficient to
preserve the arguments he asks us to accept.
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States v. Vega, 813 F.3d 386, 394 (1st Cir. 2016) (quoting United
States v. Maher, 454 F.3d 13, 24 (1st Cir. 2006)); see also United
States v. Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir. 2005). And,
we have noted that "a police officer noticing patterns of behavior
across criminal operations uses straightforward logic to conclude
a defendant's behavior fits within that pattern and thus, does not
need to be qualified as an expert." Vega, 813 F.3d at 394.
Accordingly, we have upheld district court decisions to
admit, under Rule 701, testimony from police officers "translating
jargon common among criminals," even though not "traditional" lay
testimony. Albertelli, 687 F.3d at 446-47; see also Dunston, 851
F.3d at 96 (noting that "[a]pplication of Rule 701 in the drug-
trafficking context is not novel: 'we have long held that
government witnesses with experience in drug investigations may
explain the drug trade and translate coded language' for
factfinders through lay opinion testimony" (quoting United States
v. Rosado-Pérez, 605 F.3d 48, 56 (1st Cir. 2010))).
Applying these principles here, we conclude that the
District Court did not abuse its discretion in admitting the
objected-to testimony of either Keenan or Casallas, who, we note,
were both available for cross-examination by Spencer. See Vega,
813 F.3d at 394. The record supportably reflects that both
officers provided testimony about their observations of Spencer's
behavior based on their accumulated experience as police officers
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who have handled many drug cases. United States v. Valdivia, 680
F.3d 33, 50-51 (1st Cir. 2012); see also Ayala-Pizarro, 407 F.3d
at 28 (admitting certain testimony "about how drug points
operate . . . because it was based on particularized knowledge
that the witness had by virtue of his position as a police officer
assigned to patrol the neighborhood" (citation and alterations
omitted). Specifically, Casallas testified that he had
"personally purchased successfully over 100 undercover drug buys"
during his nine years as a member of the BPD's Drug Control Unit,
while Keenan testified that he, too, had spent ten years
"exclusively as a drug investigator," including as an undercover
officer.
Moreover, the record supportably shows that Keenan's and
Casallas's testimony was helpful to the jury in interpreting
Spencer's actions and statements. Casallas and Morrison testified
about certain patterns of conduct and speech that they, on the
basis of their experience, believed to be typical of those engaged
in selling drugs. That testimony included the fact that Spencer
and Morrison were working as a team, the meaning of being "on,"
and Spencer's behavior while Casallas and Morrison actually
executed the transaction. Thus, as in Valdivia, we conclude that
the challenged "testimony was not so obviously within the jury's
bounds of knowledge as to negate all probative value." 680 F.3d
at 51.
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B.
Spencer separately contends that the prejudice to him
from the District Court's admission of the challenged testimony
from Keenan and Casallas "was compounded by improper comments of
the prosecutor in his opening and closing statements," during which
the prosecutor four times referred to Spencer as a "drug dealer"
and thus (in Spencer's view) improperly suggested that Spencer
"had a propensity to deal drugs." Because Spencer did not object
to these statements, our review is for plain error. United States
v. Acosta-Colón, 741 F.3d 179, 198-99 (1st Cir. 2013). Thus,
Spencer must show that "(1) an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of [the] proceedings." United
States v. Kasenge, 660 F.3d 537, 541 (1st Cir. 2011) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Spencer, however, cannot show the requisite prejudice
from the remarks, see United States v. Kinsella, 622 F.3d 75, 84
(1st Cir. 2010) (on plain-error review, a defendant challenging a
prosecutor's remarks as improper must "show[] both error and
prejudice"), even were we to assume that the prosecutor's remarks
rise to the level of a clear or obvious error. But see United
States v. Wiley, 29 F.3d 345, 351 (8th Cir. 1994) (concluding that
a prosecutor's remarks during closing argument, which referred to
- 32 -
the defendant as someone engaged in the "business [of] dealing
drugs," "did not deprive [the defendant] of a fair
trial . . . because the jury already was aware that [the defendant]
was on trial for distribution of cocaine base"); cf. United States
v. Marr, 760 F.3d 733, 742-43 (7th Cir. 2014) (rejecting on plain-
error review a defendant's challenge to a prosecutor's comments to
the jury during closing argument, in which the prosecutor referred
to certain transactions at issue in the case "and asked, 'what
legitimate business does that? What legitimate business writes
$1.3 million to cash and to a currency exchange?'" on the basis
that the prosecutor's comments constituted "reasonable inferences
from the evidence adduced at trial").
For one thing, "the fact that there was no
contemporaneous objection or request for curative
instructions . . . depriv[ed] the district judge of the opportunity
to provide special or additional instructions with regards to the
closing statements." United States v. Castro-Davis, 612 F.3d 53,
68 (1st Cir. 2010). For another, the District Court did explicitly
instruct the jury that the arguments made to the jury during
opening and closing argument by attorneys for the prosecution and
defense were not evidence, and that the members of the jury "are
the first and only judges of the facts in this case." In light of
our long-standing presumption that jurors follow instructions,
United States v. Ponzo, 853 F.3d 558, 584 (1st Cir. 2017), and
- 33 -
against the backdrop of "the evidence presented at trial from
multiple witnesses," "any potentially harmful effect from the
prosecutor's closing was safeguarded by the district court's final
jury instructions," Castro-Davis, 612 F.3d at 68 (citing United
States v. Mejía-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)).
C.
Finally, Spencer takes aim at the ruling by the
Magistrate Judge responsible for presiding over the initial phase
of Spencer's case in which the Magistrate Judge denied Spencer's
request for discovery on his vindictive-prosecution claim.
Spencer agrees with the government that a defendant must "advance
some evidence tending to establish [a] vindictive-prosecution
claim" before he can obtain discovery. United States v. Bucci,
582 F.3d 108, 113 (1st Cir. 2009). Spencer, however, contends
that he satisfied this standard and thus that the Magistrate Judge
erred in denying Spencer discovery. Specifically, Spencer points
to the fact that he provided evidence that he filed a civil suit
against Keenan in 2006 for assault and unlawful search and arrest,
and that "grand jury testimony" showed that "Keenan . . . directed
[Casallas] to approach Mr. Spencer on March 20, 2013," and thus
"singled [Spencer] out" for arrest. Spencer further contends that
the government's alleged Brady violation constitutes additional
evidence tending to show a vindictive prosecution, "lend[ing]
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credence to [Spencer's] allegations that he was specifically
targeted for federal prosecution based on his prior lawsuit."
Our review of the Magistrate Judge's ruling is for abuse
of discretion. Id. at 114. We find none.
Spencer concedes that he bears the burden of
"connect[ing] any vindictive animus to those making the challenged
charging decision in his case." Id. (citation omitted). The
government, however, emphasizes that, from all that the record
shows, federal authorities were unaware of Spencer's lawsuit
against Keenan when they agreed to take Spencer's case from the
Suffolk County District Attorney's Office. And Spencer points to
nothing in the record that would tend to show the contrary -- let
alone that Spencer's lawsuit against Keenan motivated federal
authorities to agree to prosecute Spencer. Instead, tying
Spencer's Brady claim to his vindictive prosecution claim, Spencer
offers only speculation, suggesting that it is otherwise
"inexplicable" that federal authorities would first have sought to
try him, and later to withhold evidence from him. But, such
speculation is plainly insufficient to satisfy the standard we
laid out in Bucci. Id. at 114 ("To obtain discovery, [a defendant]
must do more than simply identify a potential motive for
prosecutorial animus." (citation omitted)).
Moreover, although the government admits that the
particular drug transaction at issue in this case involved a small
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quantity of cocaine base, the government notes that Wortmann stated
in an affidavit -- and Spencer does not dispute -- that Spencer
had "close to 100 entries on his Board of Probation Records" and
had been "convicted of approximately 19 crimes going back to 1990."
It is thus not inexplicable that federal authorities took Spencer's
case.7
For all of these reasons, Spencer's challenge regarding
his vindictive prosecution claim fails.
IV.
For the foregoing reasons, we affirm the rulings below.
7 We note, too, as Spencer acknowledges, that the relevant
undisclosed evidence was not available to the Magistrate Judge at
the time of the Magistrate Judge's ruling on Spencer's discovery
request, and Spencer never sought to renew his motion.
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