U.S. v. Malik

• Decision Date: 09 January 1991
• Docket Number: No. 90-1549,90-1549
• Citation: 928 F.2d 17
• Parties: UNITED STATES, Appellee, v. Mushtaq MALIK, a/k/a Mushtaq Ahmed, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 17

928 F.2d 17

UNITED STATES, Appellee, v. Mushtaq MALIK, a/k/a Mushtaq Ahmed, Defendant, Appellant.

No. 90-1549.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 1991.

Decided March 18, 1991.

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.

I. Facts

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 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.

II. 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 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, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)). But, those limits must be reasonable, which is to say that they must not prevent the defendant from providing the jury with essential information about key events and sufficient information to make a "discriminating appraisal" of a witness's motives and possible bias. See id. at 1140 (stating that a trial judge's imposition of restrictions will be reversed "only if the jury is left without 'sufficient information concerning formative events to make a "discriminating appraisal" of a witness's motives and bias' ") (quoting United States v. Campbell, 426 F.2d 547, 550 (2d Cir.1970)).

Our reading of the record convinces us that the district court, in this case, acted well within the scope of its lawful powers, for the following reasons. First, in context, at the point Malik's counsel tried to pursue the cross-examination in question, its relevance was not clear. After the event, and particularly in his brief in this court, counsel has argued that Malik's story amounted to a claim that he was playing along with Houchaimi and that he really did not intend to smuggle drugs. At the time of cross-examination, however, and in his offer of proof, he had not developed the theory very clearly. Indeed, he seemed to be saying either that Malik wanted to show that he had engaged in drug smuggling in order to get back the money that Houchaimi allegedly took from the revolutionary group, or perhaps that Houchaimi was lying to get revenge on Malik for reasons arising from some past association.

Counsel's offer of proof consisted of the following:

MR. FERRARONE [Malik's counsel]: ... My defense is going to be, while my client was in prison, [Houchaimi] made many many representations to him that he would involve himself in the attempt to kill Zia ul Haq, and that is the reason why my client became involved with this man, because my client was particularly interested in that and produced a large amount of money from many people in order to see this particular thing.

That is why I need to involve myself in this PLO business and I am not fishing, Your Honor. I have an actual theory of defense that I need to present and that what happened was he took the money from a lot of people and he used it on drugs, and my client, realizing that he had been involved with this person, thought that the only way he was going to receive any money back and being able to repay the sixteen people who were involved in this thing, was to do anything he could to get the money back.

This is the theory in a nutshell, and if I don't get the opportunity to cross examine him on this, I will never be able to adequately present this defense.

Tr. Vol. III, p. 75. The trial court's response to this offer indicates that the court understood this story merely as a recital of events leading up to the conspiracy to import heroin, rather than a version of events under which Malik never formed an intention to conspire to import heroin. The court stated:

Why don't you simply ask him one point blank question, as a result of previous relations with Mr. Malik did he attempt to get involved in this particular conspiracy.

Id. If this was a misimpression, counsel for Malik made no attempt to correct it; instead, after one more attempt to ask Houchaimi about a conspiracy to harm Zia ul Haq, to which an objection was sustained, he asked the following question:

As a result of your previous relations with Mr. Malik did you attempt to get him involved in a conspiracy to bring heroin into the United States so that, if caught, you could seek revenge against him for any previous relationships you may have had with him in the past?

Tr. Vol. III, p. 76. Houchaimi answered "Sir, Your Honor, I swear to God that my relationship with Mr. Malik was pure heroin and that is it." Id. The cross-examination then went on to other, unrelated matters.

Not only did counsel for Malik not make clear during his cross-examination of Houchaimi that Malik's defense would be that he never intended to smuggle drugs, he did not make it clear later in the trial either. During Malik's presentation of evidence, counsel continued to argue that Malik's defense was that he had smuggled drugs in order to recover the stolen money. He told the jury, for example:

So that in a...