689 F.2d 822 (9th Cir. 1982), 81-1318, United States v. Mehrmanesh

Docket Nº:81-1318.
Citation:689 F.2d 822
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mohammad Reza MEHRMANESH, Defendant-Appellant.
Case Date:October 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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689 F.2d 822 (9th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mohammad Reza MEHRMANESH, Defendant-Appellant.

No. 81-1318.

United States Court of Appeals, Ninth Circuit

October 5, 1982

        Argued and Submitted April 6, 1982.

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        Michael L. Piccarreta, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.

        Daniel R. Drake, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

        Appeal from the United States District Court for the District of Arizona.

        Before ELY and NORRIS, Circuit Judges, and BURNS, [*] District Judge.

        ELY, Circuit Judge:

        Mohammad Mehrmanesh appeals his conviction after jury trial for importing heroin and attempting to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), (b), 846, 952(a), 960(a)(1), (b) and 18 U.S.C. § 2. After careful consideration of the numerous assertions of error presented, we affirm.

       I. BACKGROUND

        A. Procedural History

        On March 20, 1980 appellant Mohammad Mehrmanesh (hereinafter "Mehrmanesh"), his wife, Patricia, and his brother, Abolfazl, were arrested and charged by complaint with various narcotics offenses. After several pretrial hearings, which resulted in 16 days of excludable delay under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976 & Supp. III 1979), the Government sought and obtained an order permitting additional time within which to file an indictment. A total of 47 days of excludable delay were involved prior to indictment.

        On July 9, 1980 a two-count indictment was filed charging the three with the importation of approximately 8.3 pounds of heroin and the attempt to possess with intent to distribute approximately 8.3 pounds of heroin. 21 U.S.C. §§ 841(a)(1), (b), 846, 952(a), 960(a)(1), (b); 18 U.S.C. § 2. Accordingly, there were 64 nonexcludable days between arrest and indictment.

        The defendants moved to dismiss the indictment on July 14, 1980, alleging violation of the Speedy Trial Act for failure to indict within 30 nonexcludable days after arrest. See 18 U.S.C. §§ 3161(b), 3162(a)(1), 3163 (1976 & Supp. III 1979). The District Court denied the motion and the defendants immediately appealed to this Court. We dismissed the appeal for lack of an appealable order. See United States v. Mehrmanesh, 652 F.2d 766 (9th Cir. 1981).

        After a five-day trial before Judge Wesley E. Brown, under a superseding indictment that added the charge of aiding and abetting the listed offenses, the jury acquitted Abolfazl but found Mehrmanesh guilty on both counts. Patricia was acquitted by the court pursuant to a Judgment of Acquittal entered at the close of all the evidence. The court found Mehrmanesh to be a dangerous special drug offender under 21 U.S.C. § 849 and sentenced him on each count to 15 years' imprisonment and a $25,000.00 fine.

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        B. Factual History

        On March 12, 1980 an Iranian citizen named Ali Pirani entered the United States through the port of entry at Chicago's O'Hare International Airport, following a direct flight from Frankfurt, Germany. Pirani, who had a California driver's license, requested a tourist visa valid for forty-five days. As part of his Customs declaration, Pirani indicated that his United States address would be 8414 East Vista, Scottsdale, Arizona, a home then rented and occupied by Mehrmanesh. U.S. Immigration Inspector Michael Goldstein checked Pirani's hand-carried luggage and found two air waybills. Goldstein became suspicious since the waybills indicated that personal effects were being shipped. People traveling internationally usually pay weight overage charges and carry their personal effects with them to ensure their safe arrival. Both waybills were shipped from Kuwait with the same Post Office box number and telephone number given as the address of origin; however, the names of the shippers were different. One waybill related to a shipment by Pirani to "Mr. Mehrmanesh" at 6615 North Smoketree, Scottsdale, Arizona, a home owned by Mehrmanesh. The other was a shipment to Dudley Johnson at the East Vista address; this shipment was never located. Goldstein made copies of the waybills, granted Pirani a forty-five day visa, and referred the waybills to U.S. Customs.

        The suitcase shipped by Pirani arrived in Chicago on March 13, 1980 and was searched while "in bond" before the suitcase had cleared Customs. Customs Inspector Joann Ronkowski, who had received the waybills, opened the suitcase and, after noticing a slight bump in the suitcase lining, cut into the bump. She found inside the lining a light brown powdery substance that tested positive for opium alkaloids. Ronkowski referred the matter to the Drug Enforcement Administration (DEA) and entrusted the suitcase to Special Agent Valentine who transported the suitcase to Phoenix.

        In Phoenix DEA agents took the suitcase to a local luggage shop where the lining and the 8.3 pounds of heroin it concealed were removed and a new lining installed. A small sample of heroin was placed beneath the new lining.

        The contract carrier for the suitcase, American Airlines, sent a letter on March 14, 1980 to the Smoketree Lane address, notifying the consignee, Mr. Mehrmanesh, that the suitcase had arrived and could be claimed. At approximately 11:00 a. m. on March 20, 1980, Mehrmanesh's brother, Abolfazl, and adolescent son, Dudley, arrived to claim the suitcase. After about 45 minutes the bag was delivered to Customs inspectors, who, after a cursory inspection, turned the suitcase over to Abolfazl. DEA agents followed Abolfazl, Dudley, the suitcase, and the car containing them out of the airport area as they drove towards Mehrmanesh's residence at 8414 East Vista. The car stopped once en route when Abolfazl appeared to use a pay phone. About this same time Mehrmanesh received a phone call at the East Vista residence and spoke in Farsi to the caller. After the phone call Abolfazl drove on to the East Vista residence and took the suitcase into the house. About five minutes later Kenneth Uran left the East Vista residence and drove away in his Mercedes. Uran was arrested a few blocks from the house for possession of small amounts of heroin and cocaine.

        DEA agents, relying on the above facts, plus informant information that Mohammad Mehrmanesh was engaged in the importation and distribution of large quantities of heroin, obtained a search warrant for the East Vista residence. As agents quietly approached the front door of the residence and were about to knock, the door was opened by Dudley Mehrmanesh. The officers entered the house and kicked in the locked bedroom door where Mehrmanesh was located. They immediately located the suitcase, the contents of which had been removed. The heroin sample had not been touched. In searching the master bedroom, the agents found large quantities of various drugs, drug paraphernalia, and certain documents which indicated Mehrmanesh lived

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at the East Vista address. The agents also discovered approximately one pound of opium wrapped in gray duct tape in a wall cavity covered by corkboard. After Mehrmanesh was advised of his rights the agents questioned him. He explained that when the suitcase arrived and he opened it he saw a bundle wrapped in gray tape, which he said he knew to be opium. He said he then hid the opium in the wall behind the corkboard. Following the search, Mehrmanesh, his wife, and Abolfazl were arrested and removed. The other people at the residence, including defendant's mother and sister, Zhara, were allowed to remain at the residence.

        At trial the drugs, drug paraphernalia, and other items found during the search of the East Vista house, along with the 8.3 pounds of heroin previously removed from the suitcase, were introduced over objections into evidence. Uran, testifying for the Government, stated that he had obtained drugs, usually heroin, cocaine, or opium, from Mehrmanesh at least ten times during the 18-month period preceding the March 20, 1980 arrest. He also testified that after the arrest Mehrmanesh told him that he did know what was in the suitcase, that he was just doing a favor for a friend, and that he felt he was not guilty. Michael Reedy, who began remodeling Mehrmanesh's house on Smoketree Lane, testified that he had used heroin from April to December 1980 at Mehrmanesh's house and that he had negotiated with Mehrmanesh in December 1980 for the purchase of a large quantity of heroin. The court also allowed a DEA agent to testify concerning an incident in 1975 in which Mehrmanesh admitted involvement in smuggling hashish into the United States. Mehrmanesh declined to testify at trial as a result of the court's ruling that his conviction for the 1975 incident could be used as impeachment. After four days of trial the jury found Mehrmanesh guilty on both counts of the indictment.

       II. DISCUSSION

        Mehrmanesh raises six issues on this appeal: (1) whether the District Court erred in refusing to dismiss the indictment for a Speedy Trial Act violation; (2) whether evidence of Mehrmanesh's prior and subsequent crimes and wrongs were properly admitted under Fed.R.Evid. 404(b); (3) whether the District Court erred in ruling that Mehrmanesh's 1975 conviction could be used as impeachment if Mehrmanesh testified; (4) whether items seized at the East Vista residence should have been suppressed as the result of an invalid search warrant; (5) whether the charge of aiding and abetting in the indictment was fatally defective; and (6) whether improper remarks by the prosecutor during closing argument prejudiced Mehrmanesh's right to a fair trial. We dispose...

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