U.S. v. Afjehei, 351
| Citation | 869 F.2d 670 |
| Decision Date | 03 March 1989 |
| Docket Number | D,No. 351,351 |
| Parties | 27 Fed. R. Evid. Serv. 1153 UNITED STATES of America, Appellee, v. Ahmad AFJEHEI, Defendant-Appellant. ocket 88-1214. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Douglas T. Burns, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., John Gleeson, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.
Colleen P. Cassidy, New York City (Legal Aid Soc. Federal Defender Services
Unit, New York City, on the brief), for defendant-appellant.
Before KEARSE, CARDAMONE, and WINTER, Circuit Judges.
Defendant Ahmad Afjehei appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Edward R. Korman, Judge, convicting him on one count of importation of heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) & (b)(1)(A) (1982 & Supp. IV 1986), and one count of possession of heroin with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) & (b)(1)(A)(i) (1982 & Supp. IV 1986). He was sentenced to concurrent prison terms of 121 months on each count, to be followed by concurrent 5-year terms of supervised release; he was fined a total of $7,500 and was ordered to pay a special assessment of $50 on each count. On appeal, Afjehei contends principally that the trial court abused its discretion in admitting certain evidence as similar-act evidence pursuant to Fed.R.Evid. 404(b) when there was no indication that the prior acts were similar to the conduct with which he was charged. For the reasons below, we conclude that the evidence was improperly admitted, and we vacate the conviction and remand for a new trial.
The present prosecution arises out of Afjehei's arrival in the United States in December 1987 carrying a suitcase containing heroin. Afjehei was indicted on two counts of possession and importation as indicated above. The government's proof at trial revealed the following.
On December 3, 1987, Afjehei, a 24-year-old Iranian citizen having resident alien status in the United States, arrived at John F. Kennedy International Airport from Istanbul. In response to questions from a customs inspector, Afjehei stated that he was a student at UCLA and that the suitcase he was carrying was his. The initial search of the suitcase revealed that it contained clothing and a gym bag; closer inspection revealed that one side had a false bottom. The customs inspector testified that when his search turned to the side of the suitcase with the false bottom, Afjehei's "eyes dropped, his jaw dropped, I saw a big change in his face." Search of the concealed compartment revealed more than 2.3 kilograms, or approximately five pounds, of heroin.
Afjehei was arrested and, after the arrival of a Farsi interpreter, was given Miranda warnings. He then stated that he had been given the suitcase by a friend in Turkey who had asked him to deliver it to a person in Los Angeles, Afjehei's destination. Afjehei said he did not have the name or description of the person who was to meet him in Los Angeles, and he denied knowing that there was heroin in the suitcase.
At issue on this appeal is evidence as to prior trips taken by Afjehei, admitted over Afjehei's objections. In his opening statement, the Assistant United States Attorney ("AUSA") noted that Afjehei was a resident of the United States but made frequent trips abroad:
In short, ladies and gentlemen, you will learn various pieces of evidence which paint the overall picture of the defendant who knowingly imported five During its case-in-chief, the government was permitted, again over objection, to introduce Afjehei's Iranian passport and to elicit testimony from a customs agent that the passport revealed a history of "quite a few trips" by Afjehei to Turkey. The evidence showed that in 1987, Afjehei had been in Turkey from February 4 to May 11, from May 15 to July 5, from August 27 to September 10, and from November 26 to December 3. The passport also revealed two trips, of undetermined duration, to Canada in late September and late October of 1987.
pounds of heroin worth a great deal of money into this country....
At the close of the government's case, Afjehei moved for a mistrial, arguing that the evidence of and references to his other trips were irrelevant, and that any probative value they might have was greatly outweighed by their potential for unfair prejudice. The court denied the motion, stating as follows:
It seems to me reasonable for the jury to take into consideration the offense as you have outlined in the opening statement; and the state of his mind, whether he was a courier knowingly or not, I think this is relevant.
Afjehei presented a defense consisting principally of the testimony of his brother and a family friend to the effect that Afjehei was in the business of buying American clothes and consumer items and reselling them in Turkey at a profit, and that the trip ending on December 3 had been devoted to this business. Afjehei also introduced the expert testimony of a professor of Middle Eastern studies who stated that it was common for Iranians to ask friends to deliver packages for them when travelling, and that as a matter of etiquette, it was expected that those who were asked would comply.
In its summation, the government reviewed Afjehei's travel history and argued that Afjehei's claim to be a student was "ridiculous," and that it made no "sense ... that a 24-year-old student was getting on the airplane and flying all over the world." The AUSA argued that Afjehei's witnesses had presented "a concocted story, a desperate attempt to explain the unexplainable, and that is, why is this defendant making all of these trips all over the world?" He stated, "[T]his travel history, and the sheer cost of these tickets, ... is wholey [sic] and completely inconsistent with any student's lifestyle, and indicates that he is up to something else," and added:
Clearly, the defendant's travel history, which I just reviewed a moment ago, why is a student flying all over the world, to Zurich, to Canada, to Turkey, to the United States? Where is he getting the funds to do this? Seven hundred and twenty-one dollars for one ticket, what is he really doing on those trips?
As I said before, no sooner does he come into the country as a resident alien, then he is off halfway around the world again. What is he doing?
We know exactly what he's doing on this trip, don't we? Thanks to the work of Customs, we know that he was smuggling heroin.
The jury found Afjehei guilty on both counts of the indictment, and he was sentenced as indicated above. This appeal followed.
Afjehei's principal argument on appeal is that, under Rules 403 and 404(b) of the Federal Rules of Evidence, the trial court should have excluded the evidence of his prior trips because its probative value was nonexistent or at least was substantially outweighed by the danger of unfair prejudice resulting from its admission. The government contends (1) that Afjehei's present argument is procedurally barred and (2) that the evidence was admissible on grounds other than those challenged by Afjehei. For the reasons below, we conclude that the prior-trip evidence should have been excluded, and we therefore vacate the judgment of conviction and remand for a new trial.
In support of its procedural argument, the government argues that Afjehei's only timely objection at trial was on the ground of relevance, not on the ground that the probative value of the evidence was outweighed by its prejudicial impact. Although Afjehei's counsel could perhaps have been more articulate in stating the ground of objection, we consider the matter adequately preserved.
Counsel first objected when the AUSA broached the subject of the trips during his opening statement. Though no precise ground for the objection was stated, counsel immediately asked for a sidebar conference; his request was denied. At the end of the government's opening, Afjehei's counsel again asked for a sidebar; again his request was denied. When the government offered Afjehei's passport in evidence, counsel again objected. When the AUSA asked the customs agent about Afjehei's travel history, his counsel objected to the whole line of questioning. Thus, Afjehei objected at virtually every key juncture.
Apparently the government perceived these objections to be on the ground of relevance. Evidence is "relevant" within the meaning of the Federal Rules if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Thus, there is often a close relationship between an objection on the ground of lack of relevance and an objection on the ground that the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Afjehei's motion for a mistrial expressly stated the latter objection. Though it was, of course, too late by that time to exclude the evidence, the trial judge did not in any way suggest that the objection had been waived; nor did he seem surprised...
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