U.S. v. Abbas

• Decision Date: 31 January 1996
• Docket Number: No. 94-5621,94-5621
• Citation: 74 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Syed ABBAS, a/k/a Qasim, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 506

74 F.3d 506

UNITED STATES of America, Plaintiff-Appellee, v. Syed ABBAS, a/k/a Qasim, Defendant-Appellant.

No. 94-5621.

United States Court of Appeals Fourth Circuit.

Argued Dec. 7, 1995.

Decided Jan. 31, 1996.

Appeal from the United States District Court for the District of Maryland, at Baltimore; Frank A. Kaufman, Senior District Judge (CR-92-96-K).

ARGUED: Michael Gregory Middleton, Baltimore, Maryland, for Appellant. Jan Paul Miller, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: William H. Murphy, Jr., Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.

Before RUSSELL, WILKINSON, and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge WILKINSON and Judge NIEMEYER joined.

OPINION

DONALD RUSSELL, Circuit Judge:

After nine days of trial testimony regarding his participation in a heroin conspiracy in Baltimore, Syed Qasim Abbas ("Abbas") was convicted for conspiring to import heroin into the United States in violation of 21 U.S.C. Sec. 963; conspiring to distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. Sec. 846; and distribution of heroin in violation of 21 U.S.C. Sec. 952(a). Abbas appeals his conviction asserting that the district court: (1) erred in refusing to permit him to reopen his case in order to call a co-defendant who had formally invoked his Fifth Amendment protection against self-incrimination; (2) improperly admitted a Drug Enforcement Agency ("DEA") chemist's expert testimony that the seized substance was heroin; and (3) improperly instructed the jury. Affirming his conviction, we hold that the district court properly exercised its discretion in rejecting Abbas' motion to reopen his case; that the DEA expert testimony was admissible; and that the jury instructions were proper in both form and substance.

I.

According to the evidence of record, Abbas drove Mahmood Ali ("Ali") to Baltimore to sell heroin, which Ali had just smuggled in from Pakistan via Newark Airport. While in Baltimore, Abbas and Ali sold over one kilogram of 80% pure heroin to another known dealer and an undercover United States Customs Service agent. Their entire meeting, which was the first in a series of transactions and negotiations, was recorded on video and audio tape. During the sale, Abbas talked openly about future drug transactions, the difficulty in dealing with small bills, and the difference between liquid and powdered forms of drugs. Abbas and Ali received $15,000 as a courier fee. Despite the evidence against him, Abbas maintains that he had no knowledge that the Baltimore transaction was a heroin deal. Instead, Abbas insists that he believed he was participating in a gemstone sale.

II.

We first review Abbas' contention that the district court's denial of his motion to reopen his case in order to call a co-defendant who had formally invoked his Fifth Amendment protection against self-incrimination denied Abbas his constitutional right to present defense witnesses. The Sixth Amendment provides that a criminal defendant has a right to present his best defense. U.S. Const. amend. VI. A defendant's right to present his best defense includes a right to obtain the testimony of witnesses and compel their attendance. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In fact, the right to call witnesses may sometimes trump state and federal evidentiary rules and statutes. Id. at 17-23, 87 S.Ct. at 1921-25 (holding that Texas state statute prohibiting persons charged or convicted as co-conspirators in the same crime from testifying for one another arbitrarily violated the accused's right to put witnesses on the stand as well as compel their attendance in court); see Chambers v. Mississippi, 410 U.S. 284 298-303, 93 S.Ct. 1038, 1047-1050, 35 L.Ed.2d 297 (1973) (holding trial judge's mechanistic application of Mississippi evidentiary rule prohibiting inadmissible hearsay, which proved vital to the accused's defense, violated accused's right to present witnesses). One's right to call witnesses, however, exists only during trial. After the close of evidence, the defendant no longer has an absolute right to call witnesses, but he may be permitted to do so only at the discretion of the trial court. United States v. Paz, 927 F.2d 176, 179 (4th Cir.1991) (emphasis added). From the evidence of record, Abbas was given every opportunity to call witnesses and present his best defense before he rested his case. The only question before this court, therefore, is whether the district court abused its discretion in failing to reopen Abbas' case after the close of evidence so that he could recall a witness.

On the eighth day of trial, Abbas informed the district court and opposing counsel for the first time of his intention to call as a witness Khalid Khan ("Khan"), a co-conspirator in the heroin transaction. After promptly contacting Khan's attorney, arrangements were made to transport Khan from the city detention center--where he was being held pending the Government's case against him ^*--to court the following morning.

Abbas proffered Khan would testify that on the day of the Baltimore transaction, Ali assured Khan that Abbas was a stranger to the co-conspirators; that Abbas knew nothing about the heroin deal; and that Abbas believed they were conducting a gemstone transaction in Baltimore. When called to testify, however, Khan, on the advice of counsel, repeatedly asserted his Fifth Amendment privilege against self-incrimination. Subsequently, the district court entertained motions throughout the morning regarding Khan's proffered testimony, Khan's Fifth Amendment assertion, and Abbas' motion that the district court confer judicial immunity to Khan. After these motions were denied, Abbas neither called additional witnesses nor testified himself. Both sides rested and the jury was told that closing arguments would commence after lunch.

During luncheon recess, and while in lock-up together, Khan told Abbas he would testify despite his Fifth Amendment privilege. Abbas reported Khan's changed disposition to the district court and motioned that he be allowed to reopen his case to call Khan to the stand. The Government objected and the district court denied Abbas' motion to reopen his case.

It is within the district court's sole discretion to reopen a case to admit new evidence. Paz 927 F.2d at 179; and United States v. Peay, 972 F.2d 71, 73 (4th Cir.1992), cert. denied, 506 U.S. 1071, 113 S.Ct. 1027, 122 L.Ed.2d 172 (1993). When reviewing whether or not the judge abused his discretion in not reopening a case, we examine (1) whether the party moving to reopen provided a reasonable explanation for failing to present the evidence in its case-in-chief; (2) whether the evidence was relevant, admissible, or helpful to the jury; and (3) whether reopening the case would have infused the evidence with distorted importance, prejudiced the opposing party's case, or precluded the opposing party from meeting the evidence. Id.

To prevail under Peay, Abbas must demonstrate each prong of the test. If Abbas fails to substantiate even one prong of the test, due deference is given to the discretion of the sitting judge.

After analyzing the first prong of Peay, we conclude that Abbas did not provide the district court with a reasonable explanation of why he was unable to present the evidence during his case-in-chief. Although we know that the intended evidence was precluded because Khan had asserted his Fifth Amendment privilege, we find it suspicious, as did the district court, that Khan decided to waive his privilege against self-incrimination and testify after he had a personal conversation with Abbas. Consequently, we find no error in the district court's decision to uphold Khan's right against self-incrimination despite his alleged change of heart. Where the right to compulsory process and self-incrimination are in conflict, the privilege against self-incrimination prevails. Royal v. State of Maryland, 529 F.2d 1280, 1283 (4th Cir.1976).

Even though we need not reach the second prong of the test because Khan's testimony was precluded from trial as a result of his Fifth Amendment assertion, we find it necessary to comment on the testimony's questionable admissibility. The record reveals Abbas proffered that Khan had a conversation with Ali, another coconspirator, in which Ali told Khan that Abbas was a stranger to the deal, and that Ali had convinced Abbas to drive Ali to Baltimore to take part in a gemstone transaction. This brand of hearsay would not be considered hearsay and is admissible pursuant to Federal Rule of Evidence 801(d)(2)(E). Khan's proffered testimony contains a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Rule 801(d)(2)(E) however, applies only when the statement is offered against a party of the conspiracy. Fed.R.Evid. 801(d)(2)(E). The rule permits introduction of co-conspirators' statements as evidence against defendant co-conspirators. Id. In this instance, Khan's proffered testimony was being offered by Abbas--a party to the conspiracy--against the prosecution. But the prosecution is not a "party" against whom such testimony may be tendered. United States v. Kapp, 781 F.2d 1008, 1014 (3rd Cir.), cert. denied, 475 U.S. 1024, 106 S.Ct. 1220, 89 L.Ed.2d 330 (1986). Thus, we conclude that Khan's proffered testimony was inadmissible.

As to the third prong of the test, we conclude that even if the district court had permitted Khan to testify after delaying the jury all morning, and after initially acknowledging Khan's Fifth Amendment privilege, Khan's testimony would have carried with it distorted importance which would have infected the proceedings.

We therefore hold that the district court did not abuse its discretion in...