993 F.2d 1368 (9th Cir. 1993), 92-10165, United States v. Khan

Docket Nº:92-10165.
Citation:993 F.2d 1368
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Zulquarnan KHAN, Defendant-Appellant.
Case Date:April 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1368

993 F.2d 1368 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Zulquarnan KHAN, Defendant-Appellant.

No. 92-10165.

United States Court of Appeals, Ninth Circuit

April 6, 1993

Argued and Submitted March 8, 1993.

As Amended May 11, 1993.

Page 1369

[Copyrighted Material Omitted]

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Daniel J. Albregts, Las Vegas, NV, for defendant-appellant.

Anthony S. Murry (argued) and Camille Wintch (on the briefs), Asst. U.S. Attys., Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before PREGERSON and BEEZER, Circuit Judges, and TAKASUGI, [*] District Judge.

PREGERSON, Circuit Judge:

At the request of the United States, Pakistan extradited Zulquarnan Khan on charges of conspiracy to import heroin in violation of 21 U.S.C. § 963 (Count II), and use of a communication facility to facilitate the heroin conspiracy in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2 (Count VIII). A jury found Khan guilty of both counts. The U.S. District Court sentenced Khan to consecutive terms of fifteen years, for Count II, and four years, for Count VIII. Khan appeals. We affirm in part, reverse in part, and remand.

I. BACKGROUND

Khan participated in a conspiracy to import heroin into the United States during February and March 1984. On March 23, 1984, the United States Drug Enforcement Administration (the "DEA") applied to the U.S. District Court, District of Nevada, for an order authorizing wiretaps and pen registers on Las Vegas telephone numbers belonging to Najeeb Ur Rahman, a co-conspirator. The application was based on the 42-page affidavit of Joseph Catale, a DEA agent personally involved in the investigation of the conspiracy.

According to Agent Catale's affidavit, telephone toll information indicated that calls were made from Rahman's telephone number in Las Vegas to Khan's telephone number in Pakistan. Catale in his affidavit stated that wiretaps were necessary because confidential informants were unwilling to testify against the suspected conspirators. Catale also stated that trying to gather information from drug couriers apprehended while transporting heroin was fruitless because the couriers seldom knew the ultimate destination of the heroin or the identity of the intended recipient. Catale further stated that normal surveillance techniques would be ineffective because the suspected conspirators relied heavily on use of the telephone.

The Nevada U.S. District Court authorized the wiretaps. A conversation between Rahman and Khan was monitored and taped on March 27, 1984.

On August 10, 1984, a federal grand jury sitting in Las Vegas returned a superceding indictment charging Khan and other defendants with drug-related offenses. In Count II, Khan was charged with conspiring to import heroin in violation of 21 U.S.C. § 963. In Count VIII, Khan was charged with using a communication facility, i.e., a telephone, to facilitate the conspiracy in violation of 21 U.S.C. § 843(b) and (c) and 18 U.S.C. § 2. A warrant was issued for Khan's arrest.

On August 24, 1984, Khan was arrested in Pakistan on unrelated charges. On August 30, 1984, Pat Valentine, a DEA agent stationed in Pakistan, visited Khan while he was in the custody of Pakistani officials. Khan gave Agent Valentine a written statement in Urdu, Khan's native language, regarding Khan's involvement in transporting heroin from Pakistan to the United States. Agent Valentine did not advise Khan of Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86

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S.Ct. 1602, 16 L.Ed.2d 694 (1966), before asking him for the written statement. Valentine sent an English translation of the statement to DEA headquarters in the United States.

On September 5, 1984, Agent Valentine returned to the Pakistani jail and obtained a more detailed written statement from Khan, again without giving Miranda warnings. A translation of the second statement was also sent to the United States.

On October 31, 1984, the United States requested Khan's extradition to the United States based on the charges set forth in the superseding indictment. The extradition documents forwarded to Pakistani officials included an affidavit from an Assistant United States Attorney, Valerie Stewart, which described the charges in both Count II and VIII. A copy of the superceding indictment was attached to the affidavit. Khan was not extradited in 1984 because on December 5, 1984, he was convicted of the unrelated Pakistani charges and sentenced to one year in prison. Khan was subsequently released.

Five years later, on November 12, 1989, Khan was arrested in response to a second extradition request based on the 1984 indictment. Khan gave oral and written statements to Pakistani officials while in Pakistani custody in November 1989, admitting his involvement with Rahman and narcotics smuggling into the United States. Khan was extradited to the United States on April 12, 1991, following extradition proceedings before a Pakistani Deputy Commissioner Enquiry Officer and the Lahore (Pakistan) High Court.

On April 26, 1991, Khan was arraigned in U.S. District Court and pled not guilty to Counts II and VIII. On October 2, 1991, Khan moved to suppress the tape-recorded telephone conversations obtained under the order authorizing the DEA wiretaps of Rahman's telephones. On October 3, 1991, Khan moved to suppress the written statements given to DEA agent Valentine in 1984. Khan also filed a motion to dismiss Count VIII of the indictment on grounds that the United States had not satisfied the extradition doctrines of "dual criminality" and "specialty." On November 19, 1991, the U.S. Magistrate Judge recommended that Count VIII should not be dismissed. On December 4, 1991, Khan moved in limine to exclude potential evidence of his involvement with heroin smuggling in 1983. This involvement occurred before the dates of the offenses alleged in Counts II and VIII of the indictment.

On December 9, 1991, the district court held an evidentiary hearing on the pending motions. The district court denied Khan's motions to suppress and affirmed the magistrate judge's findings regarding the motion to dismiss Count VIII. The district court deferred ruling on the motion in limine until trial.

Khan's jury trial began on December 10, 1991. The government introduced the following evidence, which Khan challenges on appeal: (1) the tape recording and transcript of a telephone conversation between Rahman and Khan on March 27, 1984; (2) the two written statements Khan gave to DEA Agent Valentine in 1984; (3) evidence that Khan travelled to New York in the summer of 1983 for a heroin transaction. The 1983 drug trip evidence was presented through (a) the testimony of DEA investigative assistant Shergul Khan, who interpreted Khan's admission of the trip stated in Khan's written statement, (b) the testimony of drug couriers Nisar Ahmad and Nasir Ali Khan, who first smuggled heroin with Khan on the 1983 trip, and (c) four photographs of Khan taken while he was in New York in 1983.

On December 12, 1991, the jury found Khan guilty of Counts II and VIII.

On February 28, 1992, the district court held that Khan's prior 1984 Pakistani conviction on drug charges could properly be considered in determining his sentence. The district court sentenced Khan to consecutive terms of fifteen years, as to Count II, and four years, as to Count VIII.

II. DISCUSSION

  1. Did the district court err in denying Khan's request to dismiss Count VIII of the indictment?

    Khan contends that under the doctrines of "dual criminality" and "specialty" he should not have been prosecuted on charges alleged

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    in Count VIII and that his conviction on that count should be reversed.

    1. Standard of Review

      We review de novo whether extradition of a defendant satisfies the doctrines of "dual criminality" and "specialty." United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988).

    2. Dual criminality

      Under the doctrine of "dual criminality," " 'an accused person can be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations.' " Id. (quoting Quinn v. Robinson, 783 F.2d 776, 791-92 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986)). The doctrine of dual criminality is incorporated in the operative extradition treaty between the United States and Pakistan: "Extradition is also to be granted for participation in any of the aforesaid crimes or offences, provided that such participation be punishable by the laws of both High Contracting Parties." Extradition Treaty, December 22, 1931, art. 3, 47 Stat. 2122, 2124. 1

      Khan contends that the act alleged in Count VIII of the indictment is not punishable as a crime under the laws of Pakistan. Count VIII charges Khan with violation of 21 U.S.C. § 843(b), i.e., the use of a telephone to facilitate the commission of a drug felony. 2 Count VIII also charges Khan with violating 18 U.S.C. § 2, aiding and abetting the commission of an offense against the United States.

      Khan contends that using a telephone during the commission of a drug offense is not, by itself, a criminal act in Pakistan. Khan concedes that under Pakistani law drug trafficking conspiracies are criminal acts. 3 Khan also concedes that the lawful use of a telephone can be considered an "overt act" committed in furtherance of a criminal conspiracy (as in Count II), but contends that such use standing alone cannot be charged as a separate crime.

      The government argues that as long as the underlying conduct is criminal, dual criminality is satisfied. The government contends that because the telephone use is part of the overall criminal conduct of the conspiracy, it constitutes a punishable crime in Pakistan. But it appears that it would be...

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