United States v. Edgar Tapia

MEMORANDUM

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. 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 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (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…