U.S. v. Abou-Saada, ABOU-SAAD
| Decision Date | 21 March 1986 |
| Docket Number | Nos. 85-1101,EL-DEBEI,D,ABOU-SAAD,s. 85-1101 |
| Citation | 785 F.2d 1 |
| Parties | 19 Fed. R. Evid. Serv. 1481 UNITED STATES of America, Appellee, v. Assadaefendant, Appellant. UNITED STATES of America, Appellee, v. Milad K.efendant, Appellant. UNITED STATES of America, Appellee, v. Antonious TANNOUS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Yacoub FAYAD, Defendant, Appellant. to 85-1104. |
| Court | U.S. Court of Appeals — First Circuit |
Nicholas A. Abraham, with whom Abraham-Hanna, P.C., was on brief, for defendant, appellant Tannous.
Charles Rankin, for defendant, appellant El-Debeib.
Andrew Good, with whom Silverglate, Gertner, Baker, Fine & Good, was on brief, for defendant, appellant Fayad.
E. Sydney Hanlon, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., was on brief, for appellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and WYZANSKI, * Senior District Judge.
The government charged the four defendants in this case with being part of an international heroin importing conspiracy. The jury convicted them of conspiracy to possess (with intent to distribute) fifteen pounds of heroin, 21 U.S.C. Sec. 846, and of a related "interstate commerce" charge, 21 U.S.C. Sec. 843(b). All four (Assada Abou-Saada, Milad El-Debeib, Antonious Tannous and Yacoub Fayad) appeal raising various arguments. With one exception, we find these arguments legally inadequate; hence, we affirm the convictions of Abou-Saada, Tannous, and Fayad. We remand El-Debeib's case for further proceedings.
We first set forth several of the key facts in this case, primarily for what they tell us about Abou-Saada's role. This role will become important in respect to one of appellant Tannous' arguments which we will discuss at pp. 9-10 infra. In setting forth the facts, we read the record in a light most favorable to the government. United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983).
On March 9, 1984, in Toronto, Canada, an undercover agent of the Royal Canadian Mounted Police (RCMP), Corporal Gerald Froud, bought 100 grams of heroin from Remonda Bassett. Froud wanted to catch Bassett's suppliers. When he met with her again on March 13, he complained about the quality of the 100 grams received. He insisted on meeting with her suppliers, and he discussed buying an additional four kilograms of heroin. After placing wiretaps on Bassett's phone, the RCMP heard her relay the four kilogram order to Elias and Marie Njeim in Montreal. The RCMP then began to tap the Njeims' phone as well.
Froud went with Bassett to Montreal on March 19. He met with the Njeims, he paid them $30,000 for the 100 grams, he discussed an interim purchase of 250 grams, and he agreed to buy the additional four kilograms for $600,000. During the trip, Froud heard Bassett say that the Njeims were "dealing with the main person in Boston," who received drugs from an overseas supplier whom she (Bassett) knew.
Froud met with Bassett again in Toronto on March 30. Bassett offered to sell him yet an additional 200 grams. Later that day, the RCMP heard Bassett's husband call Assad Abou-Saada in Lebanon and ask for four kilograms of heroin. After bargaining over the price, Abou-Saada agreed to deliver the four kilograms of drugs to the United States for $150,000.
On April 1, Bassett received a call from Yacoub Fayad in Boston. During the conversation Fayad made clear that he was the Njeims' regular heroin supplier, that he would supply the extra 200 grams destined for Froud, and that he did not want to meet her customers. He said, Subsequently, the RCMP overheard several conversations among Bassett, Fayad and the Njeims discussing the quality and price of the 200 grams, in which it became apparent that Marie Njeim and Fayad were attempting to doublecross both each other and Bassett.
On April 5, Froud returned to Montreal with Bassett. He paid for, and received, the 200 grams. Froud then travelled with Bassett to Massachusetts, where Bassett met alone with Fayad at the Harvard Street Garage in Medford (which Fayad owned). Afterwards Bassett told Froud that "everything was in place" for the four kilogram shipment.
The RCMP kept the United States Drug Enforcement Agency informed about these events. Consequently, the DEA began to watch Fayad's Harvard Street Garage. On May 3 (after Bassett's meeting with Fayad in Boston), the DEA obtained a warrant allowing it to tap the phones at the garage and at Fayad's residence. Two days later, the DEA overheard Abou-Saada call Fayad from Lebanon and tell Fayad that he would soon arrive in Boston. They arranged to meet. On May 10 the DEA overheard Abou-Saada tell Fayad that he had arrived in Boston and was staying at the Charles River Motel. The DEA began to watch Abou-Saada who communicated frequently with Fayad from that point on.
On Tuesday, May 15, Abou-Saada told Fayad that the "shipment" would arrive Thursday. In fact, the next day (Wednesday), two crates arrived at Logan Airport in Boston addressed to a fictitious address near Fayad's garage. They contained china and fifteen pounds of heroin packed between the cardboard dividers separating the dishes.
During the next few days Abou-Saada told Fayad that he believed government agents were watching him; Marie Njeim told Froud that the four kilograms of heroin had arrived; Fayad told Bassett that the drugs had arrived but could not be delivered; and Marie Njeim then told Froud that there was a delay and he should call again in fifteen days to a month.
On May 30, a skycap at Logan Airport told federal agents that two women had tried to bribe him to smuggle two packages (the ones just described) past customs. The agents seized the packages and found the heroin inside. They arrested the women, Sara Green and Judith Limentani (defendant El-Debeib's ex-wife). They informed the women of their Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They then asked the women to help make a "controlled delivery," i.e., to deliver the packages as if nothing had happened while the DEA watched. The women agreed.
The two women took the packages (the DEA had removed most of the heroin) and they tried to deliver them to Abou-Saada at a Boston motel. Abou-Saada, however, did not keep his appointment with the women. The RCMP overheard Abou-Saada tell Marie Njeim that El-Debeib had told him to pick up the drugs, but that someone else had told him that agents were watching the motel.
The DEA decided to try again. They took the packages and put them in a locker in Boston's Back Bay bus terminal. They gave the key to Limentani, and told her to await Abou-Saada's further delivery instructions. In the meantime, the DEA began to watch Limentani's ex-husband, El-Debeib. They noticed El-Debeib talk to a gasoline station attendant (defendant Tannous) on two occasions. And, they also continued to watch the Harvard Street Garage.
The next day (May 31), the DEA noticed that El-Debeib was driving his taxi near the bus terminal. Believing that he had come to pick up the packages, they stopped him; and, they found that he had the key to the locker with the packages. The DEA did not arrest El-Debeib, but they read him Miranda warnings; and, they asked him to cooperate by continuing with a "controlled" delivery. El-Debeib agreed. The DEA agents then placed the packages in El-Debeib's taxi.
The DEA agents watched El-Debeib drive to Harvard Square in Cambridge, Massachusetts, get out of his taxi, and talk to another taxi driver whom he met there. He and the other taxi driver then each returned to their taxis and drove off to the parking lot of a nearby Holiday Inn. The agents also saw Abou-Saada and Tannous sitting in a white Pontiac parked in the Square. They noticed that when El-Debeib arrived, Tannous (who was sitting in the driver's seat) pointed to El-Debeib, apparently for Abou-Saada's benefit.
The two men (Tannous and Abou-Saada) watched while El-Debeib and the other taxi driver spoke. When El-Debeib and the second taxi driver drove to the Holiday Inn, Tannous and Abou-Saada drove off in the opposite direction. The DEA agents then arrested El-Debeib and the other driver (who fled when the DEA appeared) at the Holiday Inn. Other DEA agents stopped Tannous and Abou-Saada on Memorial Drive in Cambridge and arrested them.
Although the government presented additional incriminating evidence against some of the defendants, this outline of the facts is sufficient for the purposes of these appeals.
El-Debeib
El-Debeib notes that, after the trial, he told the district court that a previously unavailable witness, Judith Limentani, was then willing to testify that the government had promised El-Debeib immunity in return for his cooperation. He argues that that district judge, after reading her affidavit, should have granted him a new trial, or, at least, held an evidentiary hearing to decide whether or not the government made such a promise. We agree that the court ought to have held the hearing.
The relevant background is as follows: On December 17, 1984, the tenth day of trial, El-Debeib filed a written motion asking the court to dismiss the indictment, in part because the government did not tell the grand jury that "federal law enforcement agents" assured Judith Limentani that "if she used Milad El-Debeib to complete the controlled delivery, ... [he would] not be charged ... which assurances she conveyed" to El-Debeib. The district court denied the motion the same day.
The district court had previously heard defense attorneys question the government agents involved outside the presence of the...
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