United States of America v. Edgar Tapia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR TAPIA,
Defendant - Appellant.
No. 09-10007
D.C. No. 4:07-CR-00428-JMR-
HCE
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Submitted February 10, 2010**
San Francisco, California
Before: HALL, THOMPSON, and McKEOWN, Circuit Judges.
Edgar Tapia (“Tapia”) timely appeals his conviction of assault on a United
States Customs and Border Protection (“CBP”) officer, Matthew Escarciga, in
violation of 18 U.S.C. § 111(a)(1), as charged in Count Two of the indictment.
FILED
FEB 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Tapia was acquitted of a separate charge of assault on another CBP officer, John
Holman, which arose out of the same incident on February 7, 2007, and was
charged in Count One of the indictment.
Tapia contends that the district court erred in denying his motion for a
mistrial after Officer Holman testified—to the surprise of both the prosecution and
the defense—that Tapia “apologized” for his actions during a custodial
interrogation by another federal officer, ICE Agent Robert Whitchurch. In a
variation on the theme of his mistrial motion, Tapia contends that the prosecution’s
failure to disclose that Officer Holman would testify about the “apology” violated
his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), because he
was unable to address that evidence in his opening statement. For the first time on
appeal, Tapia further contends that he was prejudiced by the nondisclosure because
he was prevented from bringing a pretrial motion to suppress the apology—which
he characterizes as being “tantamount to a confession”—and because he was
foreclosed from pursuing certain alternative defense strategies. We have
jurisdiction of Tapia’s appeal pursuant to 28 U.S.C. § 1291, and we affirm.
I.
The evidence presented during Tapia’s three-day jury trial, the procedural
events of the case, and the applicable law are well known to the parties. Thus, we

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recite such information only as necessary to our disposition of the appeal.
II.
We review de novo a district court’s denial of a motion for mistrial based on
an alleged Brady violation. United States v. Howell, 231 F.3d 615, 624 (9th Cir.
2000). When a Brady issue is not raised below, however, this Court reviews the
claim “only to determine if [its] denial would constitute plain error affecting the
appellant’s substantial rights.” United States v. Guzman-Padilla, 573 F.3d 865,
890 (9th Cir. 2009) (citing Fed. R. Crim. P. 52(b)). Applying these standards of
review, we conclude that the district court did not commit any reversible error in
denying Tapia’s mistrial motion.
Officer Holman did not mention any apology by Tapia in his incident report,
and there is no dispute that both the prosecutor and defense counsel were surprised
when Officer Holman testified about it. Nevertheless, the duty to disclose material
evidence favorable to the accused applies even without a request from the accused,
United States v. Bagley, 473 U.S. 667, 682 (1985), irrespective of the good faith of
the prosecutor, Brady, 373 U.S. at 87, and even where the evidence is known only
to investigators and not to the prosecutor, Kyles v. Whitley, 514 U.S. 419, 438
(1995). To rise to the level of a due process violation, however, the nondisclosure

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of “favorable” evidence, whether it is exculpatory or useful only for impeachment,
must have been prejudicial—i.e., “so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). To determine prejudice, “the withheld
evidence must be analyzed in the context of the entire record,” and will be deemed
prejudicial or material “only if it undermines confidence in the outcome of the
trial.” Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002).
Our review of the record reveals that defense counsel was able to use the
testimony about Tapia’s apology quite skillfully and effectively to impeach Officer
Holman and that, as a result, the jury acquitted Tapia of the assault against that
officer as charged in Count One. Indeed, it appears that defense counsel—as the
district court presciently observed in denying Tapia’s motion for mistrial—was
able to wring so much impeachment value out of Holman’s testimony during his
cross-examination of Officers Holman and Whitchurch, that he was able credibly
to claim during closing argument that Officer Holman had fabricated his testimony
about defendant’s “apology.” The record also shows that Officer Holman’s
surprise testimony about Tapia’s “apology” did not affect the verdict on the only
charge of which he was convicted—the assault on Officer Escarciga, as charged in

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Count Two—which was fully supported by evidence independent of and unrelated
to Officer Holman’s undisclosed assertion.
Tapia fails to provide any reasoned argument or authority for his contention
that a motion to suppress his “confession,” or any of the suggested alternative
defense strategies, would have affected the verdict in this case. These contentions
may, thus, be deemed abandoned on appeal. United States v. Tisor, 96 F.3d 370,
376 (9th Cir. 1996). Even if not abandoned, however, it is difficult to imagine that
defense counsel could have challenged the “poor quality” or “bad faith” of the
investigation any more effectively than he did at trial by using Officer Holman’s
testimony about the undocumented “apology,” as well as certain significant
conflicts between his testimony and that of the other officers, to undermine the
government’s case. In any event, the district court’s failure to divine the theories
Tapia raises for the first time on appeal as grounds for a mistrial was not plain error
affecting his substantial rights, as none of his arguments gives us reason to believe
that earlier disclosure of the “apology” would have resulted in a different verdict.
III.
For all the foregoing reasons, the judgment of conviction, including the
sentence imposed, is AFFIRMED.

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