928 F.2d 17 (1st Cir. 1991), 90-1549, United States v. Malik

Docket Nº:90-1549.
Citation:928 F.2d 17
Party Name:UNITED STATES, Appellee, v. Mushtaq MALIK, a/k/a Mushtaq Ahmed, Defendant, Appellant.
Case Date:March 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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928 F.2d 17 (1st Cir. 1991)



Mushtaq MALIK, a/k/a Mushtaq Ahmed, Defendant, Appellant.

No. 90-1549.

United States Court of Appeals, First Circuit

March 18, 1991

Heard Jan. 9, 1991.

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Dana Alan Curhan, Boston, Mass., by Appointment of the Court, for defendant, appellant.

Kevin O'Regan, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for appellee.

Before BREYER, Chief Judge, ALDRICH and TORRUELLA, Circuit Judges.

BREYER, Chief Judge.

Mushtaq Malik appeals his convictions for conspiring to import, and importing, heroin. 21 U.S.C. Secs. 952(a), 963; 18 U.S.C. Sec. 2. He makes several evidence-related claims, the most important of which concerns limitations the trial judge imposed on Malik's counsel's efforts to impeach a key witness through cross-examination about the witness's past activities involving the Palestine Liberation Organization, the Jordanian government, and the FBI. After reading the entire record, we conclude that all Malik's claims are without legal merit, and we affirm the convictions.



The government's evidence consisted primarily of taped phone conversations between Malik and Malik's coconspirator Samir Houchaimi, the testimony of Samir Houchaimi, and the testimony of Drug Enforcement Administration Agent William Powers. On the basis of those tapes and

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that testimony, a jury might reasonably have found facts such as the following:

In late 1986 or early 1987 Malik and Samir Houchaimi met in Karachi, Pakistan, and discussed heroin trading. In September 1987 they agreed upon a heroin smuggling scheme: Malik was to advance the necessary money and to make eight kilograms of heroin available in Cyprus; Houchaimi was to smuggle the heroin into the United States and sell it. Soon thereafter Malik telephoned his source in Northern Pakistan (named Zahir Shah), identified himself as the "Black Prince," and ordered eight kilograms of heroin. Houchaimi went to Northern Pakistan, met Shah, paid him $6000 and took the heroin (in suitcases with false sides) to Malik's house in Karachi. Malik then had it transferred to the nearby house of his associates, Kassim and Muneera Ghaffar. Muneera Ghaffar then brought seven kilograms of the heroin to Cyprus where she gave it to Houchaimi, who had come to Cyprus separately.

On January 24, 1988, Houchaimi flew to the United States with 2.2 kilograms of heroin hidden in his luggage. He smuggled the heroin through customs in New York, flew on to Chicago, returned the next day to New York, and spent the next two weeks trying to sell the heroin. Eventually, he phoned a man he had met in prison who agreed to buy the heroin and asked Houchaimi to come to Springfield, Massachusetts, to deliver it. On February 6, 1988 Houchaimi went to Springfield, where he was arrested with the 2.2 kilograms of heroin. Houchaimi then confessed all and agreed to co-operate with the government.

At the government's request Houchaimi repeatedly phoned Malik and tried to lure him into meeting with Drug Enforcement Administration Agent Powers who, pretending to be an underworld figure called "Costa," supposedly would pay for Houchaimi's heroin and offer to buy more. The highly incriminating taped phone calls reveal Malik, for example, complaining about Houchaimi's tardiness in paying for the 2.2 kilograms of heroin (Malik said Shah was pressuring him for money), speaking at length about large heroin and hashish shipments (apparently using codewords such as "jackets" to refer to the shipments), and asking Houchaimi to explain his arrest (which Houchaimi said concerned only minor immigration offenses). Malik refused to travel to the United States or to Europe, but he agreed to meet "Costa" in Rio de Janeiro.

Malik met with "Costa" (Agent Powers) and "Costa's bodyguard" (another agent) in Rio on March 29, 1988. "Costa" showed Malik $200,000 in cash. Malik told "Costa" he was the "Black Prince," he talked to "Costa" about the heroin in Cyprus, and he discussed plans for future shipments. After the meeting ended, Brazilian police arrested Malik and sent him to the United States for trial.


Limitations on Cross-Examination

Malik argues that the district court should not have limited his counsel's cross-examination of the government's two key witnesses (Houchaimi and Powers) by forbidding him to ask them about Houchaimi's terrorist activities and related affiliations with the Palestine Liberation Organization and other organizations. He says that the limitation prevented him from developing the theory of his defense. That theory explained his conduct and the tape recordings by arguing that he and Houchaimi were members of a group trying to overthrow the President of Pakistan, that Houchaimi had run off with $500,000 of the group's money, and that he (Malik) was simply playing along with Houchaimi, pretending to agree with his remarks about drug smuggling and bragging in front of "Costa" (following to a script supplied by Houchaimi's son), all in order to get back the group's money and to further the revolutionary plot. Malik adds that the line of questioning would also have helped impeach Houchaimi.

The legal question is whether or not the trial judge exceeded his powers to limit cross-examination in order to avoid prejudice, confusion, and unnecessary waste of time. A trial judge has "wide latitude" to

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impose such limits. See United States v. Twomey, 806 F.2d 1136, 1139 (1st Cir.1986) ("a trial judge retains wide latitude to impose reasonable limits [on cross-examination] in order to avoid prejudice to a party or confusion of the issues") (citing Delaware v. Van Arsdall, 475 U.S. 673...

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