U.S. v. Ammar

• Decision Date: 31 October 1983
• Docket Number: Nos. 81-1745,81-1865 and 81-2064,81-1746,s. 81-1745
• Citation: 714 F.2d 238
• Parties: 13 Fed. R. Evid. Serv. 849 UNITED STATES of America v. Ghassan L. AMMAR, Neil Roger McFayden, Judith Ammar, Ibraham Ammar, Abedeen Ammar, Naim Dahabi, Charles Rossi, Michael Dugan, Marshall Stillman. Appeal of Ghassan L. AMMAR, Neil Roger McFayden, Judith Ammar and Marshall Stillman.
• Court: U.S. Court of Appeals — Third Circuit

Page 238

714 F.2d 238

13 Fed. R. Evid. Serv. 849

UNITED STATES of America v. Ghassan L. AMMAR, Neil Roger McFayden, Judith Ammar, Ibraham Ammar, Abedeen Ammar, Naim Dahabi, Charles Rossi Michael Dugan, Marshall Stillman Appeal of Ghassan L. AMMAR, Neil Roger McFayden, Judith Ammar and Marshall Stillman.

Nos. 81-1745, 81-1746, 81-1865 and 81-2064.

United States Court of Appeals Third Circuit.

Argued Jan. 10, 1983.

Decided June 30, 1983.

Rehearing and Rehearing En Banc Denied July 22, 1983.

Certiorari Denied Oct. 31, 1983.

See 104 S.Ct. 344.

Paul J. Brysh (argued), Asst. U.S. Atty., J. Alan Johnson, U.S. Atty., John J. Mead, Legal Intern, Pittsburgh, Pa., for United States.

Philip B. Friedman (argued), Leonard G. Ambrose, III, Michelle M. Hawk, Ambrose & Friedman, Erie, Pa., for Ghassan Ammar.

Andrew J. Conner (argued), Dunn & Conner, Erie, Pa., for Judith Ammar; James M. Shellow (argued), Stephen M. Glynn, Shellow, Shellow & Glynn, Milwaukee, Wis., of counsel.

Stephen A. Saltzburg, University of Virginia, School of Law, Charlottesville, Va., for Marshall Stillman.

Michael M. Palmisano, Erie, Pa., for Neil Roger McFayden.

Before WEIS, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

These are consolidated appeals from judgments of conviction arising out of a conspiracy for the importation and distribution of heroin. After full consideration of the numerous arguments raised by appellants, we affirm the judgments below in all respects.

I. FACTS

The indictment named nine defendants and two unindicted coconspirators. Three of the named defendants, Ibraham Ammar, Abedeen Ammar, and Naim Dahabi, were fugitives at the time of trial; two other defendants, Charles Rossi and Michael Dugan, pleaded guilty and testified for the government; the remaining four defendants, Ghassan Ammar, Judith Ammar, Marshall Stillman, and Roger McFayden, stood trial, were convicted by the jury and now appeal. The unindicted coconspirators were John Welkie and Gilbert Bunner, both of whom testified at the trial.

The conspiracy spanned the period from January 1980 to October 1980. It involved the importation of heroin from Lebanon Briefly summarized, the evidence at trial, viewed in the light most favorable to the government, showed the following: In January 1980, at a meeting between Ghassan, Judith and Welkie, Ghassan told Welkie that his father and uncle could supply heroin for importation into the United States. In May 1980, Ghassan and Judith, together with Dugan and Welkie, drove from Erie to the Toronto airport where they met Ghassan's uncle, Abedeen Ammar, with whom they returned to Erie transporting heroin in hollowed-out chair legs in Abedeen's luggage. In early June 1980, Judith, Ghassan, and their infant son, together with Dugan and Rossi, flew from New York abroad to Amsterdam, where Dugan and Rossi remained while the Ammars flew on to Beirut. Shortly thereafter, Ghassan and his father, Ibraham Ammar, rejoined Dugan and Rossi (Judith stayed behind in Beirut), and the four flew to New York with heroin again concealed in hollowed-out chair legs. From New York, the four men drove to Rossi's home in Chester, Pennsylvania. Ghassan, Ibraham, and Rossi flew on to Detroit, where Ghassan met with Marshall Stillman, and then returned to Erie. During the next week, they made two additional trips to Detroit, where Ghassan again met with Stillman and transferred heroin to him. In early July 1980, Ghassan flew to Beirut, where he rejoined Judith; the two returned to New York on July 4, carrying heroin concealed on Judith's person and in their baby's diaper, and were met by Rossi, Welkie, and Ibraham. In mid-July, at Ghassan's suggestion, Rossi flew to Beirut, where he was met by Ibraham and Abedeen, and acquired additional heroin from them. Later in July, Ghassan, Welkie and Bunner travelled to Detroit where Ghassan met with Stillman and sold him heroin. After receiving a phone call from Judith, the three returned to Erie, and together with Judith drove to Toronto, where they met Naim Dahabi, who had arrived in Canada with heroin concealed in hollowed-out chair legs. They then drove to Detroit, where Ghassan, Dahabi and Welkie met with Stillman. On this occasion, Welkie delivered some heroin to a friend of Stillman's pursuant to Stillman's instructions.

                through Toronto and New York, and was centered on Ghassan Ammar, who lived with his wife Judith in Erie, Pennsylvania, where they had a leather importing business.   The Lebanese sources of the heroin were Ghassan's father, Ibraham;  his uncle, Abedeen;  and Naim Dahabi
                

During this same period, Ghassan and McFayden were involved in sales of heroin to McFayden's friend "Frank," who was in fact Francis Schmotzer, an undercover agent of the Drug Enforcement Administration. Ghassan and McFayden sold heroin to Schmotzer twice in May 1980. In late June, after their return from Detroit, Ghassan and Rossi met McFayden and Schmotzer and discussed additional heroin sales. On July 31, Ghassan, McFayden, Welkie and Bunner arranged a third sale to Schmotzer. McFayden and Bunner were arrested immediately. Welkie fled by car, but surrendered several days later in Philadelphia. Ghassan, who was not present at the sale, surrendered August 1. On August 29, a four count indictment was returned against Ghassan, McFayden and Welkie, also naming Bunner as an unindicted coconspirator.

Meanwhile, in early August, Rossi returned from Lebanon with heroin, and was met by Dugan. Rossi and Dugan were arrested on August 12 after attempting to arrange the sale of a portion of the heroin to a state undercover agent in order to raise Welkie's bail. Rossi was released, but continued to attempt to sell the heroin, and was arrested again on October 2. Welkie also was released after agreeing to cooperate with the government, and on September 19, at the instigation of the government, had a conversation with Judith who asked him to sell some heroin to raise bail for Ghassan's release. Judith was subsequently arrested. Finally, Stillman was arrested in Detroit on October 15.

On October 10, a superseding eight-count indictment was returned in the Western District of Pennsylvania. Count I charged the nine defendants (Ghassan, Judith, Ibraham, Abedeen, McFayden, Dahabi, Rossi, Dugan, and Stillman) and the unindicted Rossi and Dugan pleaded guilty to Count I and testified on behalf of the government. Welkie and Bunner, the unindicted coconspirators, pleaded guilty to a conspiracy charge in a related indictment, and also testified for the government. Of the four defendants who were tried, Ghassan, Judith, McFayden and Stillman, only Judith testified. All were found guilty as to each count in which they were named. Ghassan received seven concurrent fifteen-year sentences, a total fine of $30,000, and concurrent three-year special parole terms on all but Counts I and II. Judith received four concurrent five-year terms. McFayden received five concurrent eight-year sentences. Stillman was sentenced to concurrent twelve-year terms on the two conspiracy counts, and was fined $10,000.

                coconspirators (Welkie and Bunner) with conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).   Count II charged all defendants with conspiracy to import heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1).   Counts III, IV and V charged Ghassan and McFayden with three substantive violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 based on their sales of heroin to Schmotzer on May 2, May 20, and July 31.   Count VI charged Rossi and Dugan with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin in June 1980 from Amsterdam.   Count VII charged Abedeen, Ghassan, Judith, and Dugan with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin from Toronto in May 1980.   Count VIII charged Ghassan, Judith, and Dahabi with a substantive violation of 21 U.S.C. § 952(a) based on their importation of heroin from Toronto in July 1980.
                

Appellants in their briefs have made some fifty separate claims of trial error, which are set out in the Appendix to this opinion. We have considered each claim, many of which we find to be patently without substance, and have determined that none warrants reversal of the judgments below. We examine separately only those issues which we believe merit further discussion. ¹

II.

ADMISSIBILITY OF COCONSPIRATOR STATEMENTS

One of the principal contentions of error concerns the admission of the testimony of out-of-court statements made by members of the conspiracy. The court permitted Rossi, Welkie, and other witnesses to testify about statements made by the other conspirators on the theory that these were coconspirator statements admissible under Fed.R.Evid. 801(d)(2)(E). ²

A coconspirator statement may be admitted under Fed.R.Evid. 801(d)(2)(E) if it meets three conditions: (1) there must be independent evidence establishing the existence of the conspiracy and connecting the declarant and defendant to it; (2) the statement must have been made in furtherance of the conspiracy; and (3) it must have been made during the course of the conspiracy. See, e.g., United States v. Perez, 658 F.2d 654, 658 (9th Cir.1981). Because appellants claim these requirements were not met as to at least some statements, we consider each requirement in turn.

A.

INDEPENDENT EVIDENCE OF CONSPIRACY

1. Necessity of an in limine hearing.

In United States v. Continental Group, Inc., 603 F.2d 444, 457 (3d Cir.1979) Appellants contend that before allowing the introduction of any coconspirator statement the district court should have held a preliminary hearing at which the determination referred to above should have been made. ⁴ In United States v. James, 590 F.2d at 581-82, on which they rely, the Fifth Circuit expressed its preference for requiring the government to...