U.S. v. Nusraty, 250

• Decision Date: 07 February 1989
• Docket Number: No. 250,D,250
• Parties: UNITED STATES of America, Appellee, v. Mohammad Dawood NUSRATY, Defendant-Appellant. ocket 88-1141.
• Court: U.S. Court of Appeals — Second Circuit

Page 759

867 F.2d 759

UNITED STATES of America, Appellee, v. Mohammad Dawood NUSRATY, Defendant-Appellant.

No. 250, Docket 88-1141.

United States Court of Appeals,

Second Circuit.

Submitted Oct. 20, 1988.

Decided Feb. 7, 1989.

William Lupo, Brooklyn, N.Y. (Jane K. Falcon, Brooklyn, N.Y., of counsel), for defendant-appellant.

Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, United States Attorney for E.D.N.Y., Jerome C. Roth, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before LUMBARD, CARDAMONE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Mohammad Dawood Nusraty appeals from a judgment of the United States District Court for the Eastern District of New York, Dearie, Judge, convicting him, after a jury trial, of 1) conspiring to possess heroin with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(i), 846; 2) importing heroin into the United States, or aiding and abetting such importation, 21 U.S.C. Secs. 952(a), 960(a)(1), 960(b)(2)(A), and 18 U.S.C. Sec. 2; and 3) possessing heroin with intent to distribute, or aiding and abetting such possession, 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(i), and 18 U.S.C. Sec. 2. Because we find that there was insufficient evidence to support the convictions, we reverse. We remand to the district court, with an instruction to enter a judgment of acquittal on all three counts.

BACKGROUND

The facts of this case are relatively straightforward. At the end of June 1987, Dr. Robert Detrich, a Virginia dentist, agreed to travel on vacation to India with the appellant's uncle, Abdul Nusraty, the appellant's brother, Shah, and a third man, George Hyde. The night before the four men departed for India, Detrich attended a party at Abdul Nusraty's home in Queens, New York. At the party he met the appellant, Dawood Nusraty.

On July 2, 1987, Detrich and the other three men flew to India. Although Detrich was originally scheduled to return on July 18, he decided to return a few days earlier. According to Detrich's testimony at trial, before Detrich left India the appellant's brother, Shah, asked him to carry a new suit back to the United States to deliver to appellant for him to use in his religious wedding ceremony which was planned for August 1987.

Detrich arrived back at John F. Kennedy International Airport on July 13, 1987. At Customs, a careful search of Detrich's suitcase revealed that packets of heroin were secreted in the new suit that Detrich was Detrich was immediately arrested, and placed in the custody of agents of the U.S. Drug Enforcement Administration ("DEA"). After agreeing to make a statement to the agents, he denied having any knowledge of the hidden heroin. Detrich told the agents that he was to deliver the suit to Dawood Nusraty, whom he expected to meet him outside Customs. In an effort to cooperate, Detrich agreed to undertake a "controlled delivery" of the heroin to Nusraty, under the surveillance of the agents.

carrying. The heroin weighed approximately 131 grams, and was of 29% purity. At trial, a federal narcotics agent testified that the heroin had a wholesale value of approximately $10,000.

Detrich gave the agents Nusraty's name and physical description. The agents fanned out across the airport to look for Nusraty. Agent David Poole spotted him in the lobby area outside Customs, watching passengers as they left Customs. Testimony by Poole and other agents at trial indicated that Nusraty, a taxi driver, had parked his cab in a taxi staging area nearby. His taxi--unlike the others in the staging area, which were called up to the terminal on a rolling basis--was locked, and was parked about fifty feet behind the other cabs, against a fence.

At trial, Agent Poole testified that he observed Nusraty in the lobby for approximately five minutes. He saw him leave the lobby for a moment, and then return through another door. Shortly after Nusraty returned, Detrich emerged from Customs, carrying the suitcase which contained the new suit. As Detrich approached Nusraty, they greeted each other, and then walked together out of the terminal building. (They were followed by five or six undercover agents.) The two men walked up a ramp that led away from the terminal, towards the main roadway.

The two men held a short conversation as they made their way out of the terminal and up the ramp. As the government noted in its summation to the jury, there was, in the record, no real dispute over the substance of that conversation, since Detrich's testimony and Nusraty's post-arrest written statement were, in most respects, in accord. Detrich's testimony at trial indicated that, of the two, he did most of the talking. He testified that he first mentioned to Nusraty that he had heard Nusraty was to be married soon; Nusraty said that he was not getting married. Detrich then said that he had a suit to give Nusraty for his wedding. Again, Nusraty said that he was not getting married. Detrich then asked if the appellant's brother Shah had not told the appellant that Detrich was bringing him a suit. Nusraty replied in the negative. Finally, Detrich asked whether the appellant would drive him to LaGuardia Airport, as Shah had promised. The appellant refused; instead, he pointed Detrich towards the line of waiting taxis, and began to walk away. Shortly thereafter, both men were detained by the federal agents who had been following them, and Nusraty also was arrested. At no time did Nusraty take possession of the subject suit or suitcase from Detrich.

At trial, the government endeavored to show that Nusraty decided not to take the suit because he had observed the agents following them. The testimony on this point was, in part, contradictory. Two agents testified that both Detrich and Nusraty stopped at one point, turned around, and saw the agents following them. Detrich, on the other hand, testified that he never turned around, but that Nusraty seemed to be glancing past him as they talked.

After the two men were arrested, they were taken to the DEA offices at the airport for questioning. Nusraty, questioned separately from Detrich, agreed to make a written statement. Nusraty's written statement differed from Detrich's earlier statement and testimony at trial in one significant respect: Nusraty claimed that he was at the airport to look for long-distance taxi passengers and that it was purely a coincidence that he was in the airport lobby when Detrich emerged from Customs.

Consistent with Nusraty's written statement, defense counsel took the position throughout the trial that it was merely

coincidence that the two men had met at the airport that day. The jury, apparently rejecting Nusraty's claim of coincidence, found him guilty on all three counts charged. He was sentenced to five-year terms of imprisonment on Counts One and Three, and to a six-year term on the importation charge. All the sentences were to run concurrently. On appeal, Nusraty urges three grounds for reversal: 1) the evidence was insufficient to support his convictions, 2) the prosecutor referred repeatedly at trial to Dr. Detrich's earlier conviction for importation of the heroin, and 3) appellant was denied effective assistance of counsel. We note that the frequent mention of Detrich's conviction--which recently was reversed on appeal on evidentiary grounds, see United States v. Detrich, 865 F.2d 17 (2d Cir.1988)--may have had a significant prejudicial effect at Nusraty's trial, see United States v. Dougherty, 810 F.2d 763, 767 (8th Cir.1987). However, we need not address that issue or the issue of the effectiveness of appellant's representation at trial, since we believe that there was insufficient evidence that the appellant knowingly took part in the crimes charged.

DISCUSSION

Time and again this court has emphasized that a "defendant challenging the sufficiency of the evidence carries 'a very heavy burden.' " United States v. Young, 745 F.2d 733, 762 (2d Cir.1984) (quoting United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982)), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). A conviction must be allowed to stand if, "after viewing the evidence in the light most favorable to the prosecution," the reviewing court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

I. Sufficiency of the Evidence of Conspiracy

This standard of deference is especially important when reviewing a conviction of conspiracy. As one commentary noted:

Conspiracy is by nature a clandestine offense. It is improbable that the parties will enter into their illegal agreement openly; it is not necessary, in fact, that all the parties ever have direct contact with one another, or know one another's identity, or even communicate verbally their intention to agree. It is therefore unlikely that the prosecution will be able to prove the formation of the agreement by direct evidence, and the jury must usually infer its existence from the clear co-operation among the parties.

Developments in the Law--Criminal Conspiracy, 72 Harv.L.Rev. 920, 933 (1959) (footnotes omitted); see Young, 745 F.2d at 762.

We note in this regard that this court has held that " 'once a conspiracy is shown to exist, the "evidence sufficient to link another defendant to it need not be overwhelming." ' " United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.) (quoting, inter alia, United States v. Provenzano, 615 F.2d 37, 45 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980); United States v. Head, 546 F.2d 6, 9-10 (2d Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977)), cert. denied, 479 U.S. 1017, 107...