U.S. v. Samad, s. 83-5090

• Citation: 754 F.2d 1091
• Decision Date: 22 February 1985
• Docket Number: Nos. 83-5090,83-5091,s. 83-5090
• Parties: UNITED STATES of America, Appellee, v. Abdul SAMAD, Appellant. UNITED STATES of America, Appellee, v. Babry HANAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1091

754 F.2d 1091

UNITED STATES of America, Appellee, v. Abdul SAMAD, Appellant.

UNITED STATES of America, Appellee, v. Babry HANAN, Appellant.

Nos. 83-5090, 83-5091.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1984.

Decided Sept. 26, 1984.

As Amended on Denial of Rehearing and Rehearing En banc

Denied Feb. 22, 1985.

Kenneth E. Labowitz, Alexandria, Va., for appellant in No. 83-5090.

Dorathea J. Peters, Alexandria, Va., for appellant in No. 83-5091.

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., and Thomas M. Buchanan, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and ELIZABETH V. HALLANAN, United States District Judge, for the Southern District of West Virginia, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Abdul Samad and Babry Hanan appeal their respective jury convictions for importation of heroin and possession of heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1); 952(a) and 960. ¹ Samad contends, first, that there was insufficient evidence to support his convictions, and, second, that the trial court erred in admitting evidence tending to show that he had received welfare benefits illegally. Hanan also challenges the sufficiency of the evidence and argues, as well, that the prosecutor's reference in jury argument to a matter not in evidence constituted reversible error. We affirm Hanan's convictions, but reverse Samad's convictions because the evidence was legally insufficient to convict him on either offense charged.

I

The convictions arise out of the DEA's controlled delivery of a mailed package containing heroin to the address in Alexandria, Virginia, where Samad and Hanan then resided. Both Samad and Hanan were born in Afghanistan and their residence--a two-bedroom apartment at 324 South Whiting Street--was in the midst of a community that included a number of Afghans. Both appellants had fled Afghanistan following the Soviet invasion of that country and were granted political asylum in the United States. Hanan, who was the lessee of the apartment where the two resided, entered this country on March 3, 1980. After three months in New York, he moved to the Washington, D.C. area and eventually settled in the South Whiting Street apartment, where he had lived for about one year prior to the date of the trial in March 1983. Hanan owned and drove a taxicab and was conversant in English, a language he had learned while attending school abroad in London. Hanan's family resided in Peshawar, Pakistan.

Samad left Afghanistan in February 1980 and came to the United States by way of West Germany in September 1981. While residing at a friend's apartment in Alexandria, he worked part time at several jobs: as a doorman, a driver for a car rental agency, and as a restaurant employee. ² In addition, Samad attended school, where his instructors taught in English. Samad's actual grasp of the English language, however, is in doubt; at trial, he testified through an interpreter. ³

Samad moved into Hanan's apartment on South Whiting Street approximately a year prior to trial. For much of the intervening time, the apartment served as a temporary dwelling for the pair's Afghan friends. As many as six persons shared the two-bedroom apartment at one point, although Hanan and Samad were its exclusive occupants for at least three months prior to their arrest in January 1983.

The events leading up to the conviction of appellants began on January 4, 1983, when customs officials at Kennedy International Airport opened a package mailed from Peshawar, Pakistan ⁴ addressed to a "M. Amin" at 324 South Whiting Street in Alexandria. ⁵ Contained in the package were a shirt and a "wrap around" pair of pants. Underneath and sewn inside the shirt collar was a plastic bag containing approximately twenty-two grams of 72% pure heroin.

On January 6, the DEA arranged for a controlled delivery of the package to appellants' address at 324 South Whiting Street. After removing the majority of the drug to test it, the DEA placed the remainder, still in the plastic bag, back under the shirt collar. The pouch was not sewn back into the collar, but was placed under the collar, presumably "out of the view of anyone who would open the package without looking for it." The DEA resealed the package after enclosing a beeper designed to emit a signal when the package was opened.

On January 11, the local letter carrier, acting pursuant to the DEA's instructions, delivered the package to appellants' residence at South Whiting Street. Samad answered the mailman's knock on the door. The letter carrier asked for "M. Amin," the addressee on the package, and, according to the letter carrier's testimony, Samad replied "Yes," whereupon the mailman handed him the package. As the mailman turned to walk away, Samad asked him if he needed to sign for the package. The mailman responded in the negative. ⁶

Both Samad and Hanan testified as to the events that took place inside the residence immediately after Samad's receipt of the package. According to the testimony of both, Samad took the package and immediately gave it to Hanan. Samad testified that he gave the package to Hanan because he noticed the Pakistani return address and suspected that it might be for Hanan or someone Hanan knew, because Hanan's family lived in Pakistan, and that he always gave mail from Pakistan to Hanan. Samad then began immediately to watch television. While Samad was watching television, Hanan, in the same room, opened the package. Hanan testified that he was looking for a letter that might identify the addressee of the package. When he picked up the shirt in order to look for the letter, Hanan stated, a plastic bag containing "brown dust" fell out. Hanan claimed that he didn't know what was in the plastic bag, but that he did exclaim "My gosh, what is this?" Samad, according to Hanan's testimony, looked "shocked" but did not say anything. At this point, according to the testimony of both appellants, Samad said that he was cold and went into his bedroom to get a jacket.

After Samad had left the room, the DEA agents knocked on the door; the beeper had sounded, alerting them that the package had been opened. They had a previously obtained search warrant. Hanan testified that after he heard the knock on the door he took the opened package into the kitchen. Noticing that the bag containing the "brown powder" was still on the floor, he kicked it under the rug, he testified, in order to straighten up the room.

Hanan then went to the door and admitted the agents. The agents asked Hanan where the package was, to which Hanan responded "what package?" ⁷ The agents then saw the package, lying opened, in the kitchen; the shirt was beside the package with the "collar standing up." Special Agent Lee asked Hanan where the plastic bag was, and advised him that the agents were permitted to search the apartment in order to find it. Hanan responded that the bag was under a rug in the living room; the agents found it there and seized it. Samad was not in the living room area when the agents entered, but was later detained and brought into the room.

A further search of the apartment revealed Samad's unsigned application for welfare benefits and a sizable amount of cash. On the welfare application, which was admitted into evidence, no mention was made of any cash assets or employment. The agents also found a letter from the Alexandria welfare department indicating that Samad was receiving monthly assistance. Hanan was found to have $378 on his person and $1700 in a bedroom dresser. In addition, the agents discovered that Samad's suitcase contained $3500; Samad had $850 in a pocket at the time of his arrest.

Samad testified that he brought $4900 to the United States, and that the money found reflected a residuum of that amount. ⁸ He admitted that he failed to disclose the existence of the money on the welfare forms. He testified that his dual motive for nondisclosure was that he expected to have to pay a large tuition bill and to pay for an expensive medical operation. Samad stated that he kept the money at home because he, like many Afghans, distrusted banks. ⁹

Both Samad and Hanan testified that they did not know anyone in the United States named "M. Amin." Although Hanan had family in Pakistan, Samad testified that he had never been there. Both explicitly denied that they had known of the contents of the mailed package.

Upon this evidence, ¹⁰ the jury found both Samad and Hanan guilty of the importation and possession of heroin.

II

We first address the appellant's respective contentions that the evidence was legally insufficient to convict them of either of the offenses charged. The standard of sufficiency is that there must be "substantial evidence, taking the view most favorable to the Government, to support [the jury verdict]." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

The offense of importation of a controlled substance into the United States requires proof (1) that the substance was imported; (2) that it was imported knowingly and willfully; and (3) that the defendant willfully associated himself with the importation venture. See 21 U.S.C. Secs. 952(a), 960; United States v. Seni, 662 F.2d 277, 280 (4th Cir.1981). Mere possession of a controlled substance that is of foreign origin is insufficient to establish importation. See United States v. Moler, 460 F.2d 1273, 1274 (9th Cir.1972) (per curiam). A critical element of the offense is that the defendant import the substance or cause it to be imported. See United States v. Koua Thao, 712 F.2d 369, 371 (8th Cir.1983).

The offense of possession with intent to distribute requires the government to prove beyond a reasonable doubt that the defendant (1) knowingly (2) possessed a controlled substance (3) with the intent to...