U.S. v. Adams
| Citation | 803 F.2d 722,1986 WL 17714 |
| Decision Date | 22 September 1986 |
| Docket Number | No. 85-1338,No. 85-1330,85-1330,85-1338 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHN HENRY ADAMS, JR., and WILBERT LEON SMITH, JR., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: KEITH and MERRITT, Circuit Judges; and CONTIE, Senior Circuit Judge.
Defendant Smith challenges his convictions on federal drug charges in connection with the importation and possession of a quantity of heroin from Pakistan. Defendant Adams challenges his conviction on one charge of possession of heroin.
The facts, as established at trial by testimony and numerous audio tape recordings, are as follows. In November 1982, a group of people in Pakistan agreed to have Shergul Khan transport heroin for them to the United States. In December 1982, Mr. Khan was given seven kilograms of heroin. He was told that his destination was Detroit, Michigan, and he was given a code name (Javed Hassan) for his American contact, a serial number from a one dollar bill, and two telephone numbers to use to contact the buyer. Upon delivery Khan was to receive the dollar bill with the serial number as proof of delivery. Shergul Khan was told that he would receive $40,000 for making the delivery.
Shergul Khan is a full-time DEA informant. The two telephone numbers given to Khan were the home phone and business phone numbers of defendant Smith in Detroit. The government tapped Smith's telephones and placed him under surveillance. Mr. Khan turned the heroin over to the DEA. DEA agents prepared 14 packages each of which contained only one gram of real heroin. Khan took these 14 packages to the United States.
Mr. Khan arrived in Detroit on January 15, 1983. He called one of the two numbers he had been given. Defendant Smith answered at his home, and when Shergul Khan asked for Javed Hassan, Smith said Hassan was "here." Smith gave Shergul Khan a third telephone number and told him that Hassan could be reached there in one-Half hour. After hanging up, Smith called a room at the Westin Hotel in Detroit. He spoke with Abdul Waheed, asked to speak to Sarwar Khan, and told Sarwar Khan to return to his apartment because Mr. Javed would be calling within half an hour.
In half an hour Shergul Khan called the number Smith had given him, which belonged to the apartment to which Smith told Sarwar Khan to return. Sarwar Khan answered. Shergul Khan asked for Mr. Javed, and Sarwar Khan said, They discussed the delivery of a "letter" that Shergul Khan had brought, and Sarwar Khan stated that the sooner they completed the delivery, the better for everyone.
Later, Shergul Khan tried to call Sarwar Khan several times at this number but could not reach him. On January 17, Shergul Khan called Smith again at his home. Shergul Khan told Smith that there was a "package" to be delivered and that Shergul Khan was to receive something for delivering it. Smith said that Shergul Khan should call him back at his office number, which was the second number Mr. Khan had received in Pakistan. Smith also said that he would try to locate Sarwar Khan. In a later call that day, Smith offered to help Shergul Khan with his delivery by calling Pakistan and learning more about the delivery. Still later, Smith told Shergul Khan, "I'm talking to Pakistan right now . . . we're working it out now . . . he'll be calling you as soon as I get through talking to him."
After speaking with Smith, Shergul Khan called some of the people he had dealt with in Pakistan, who told him that Smith was the contact man and that Shergul Khan should deliver the "carpets" to him. Shergul Khan was told to give Smith the code name "Shakeel" and to shake his left hand. The Pakistanis stated that Smith was "their own man, he is the right person. . . if you deliver him the thing . . . he will give you forty thousand." In a subsequent call to Pakistan, Shergul Khan was told that Javed Hassan and Sarwar Khan were the same person, that Smith was the "right person," that Smith would contact Shergul Khan, and that Smith's car telephone number was 237-2234.
On January 16, 17, and 18, authorities stopped and searched three Pakistanis at the Detroit airport. Among them were Abdul Waheed and Mafoos Rizvi. They were carrying large sums of cash -- $83,000; $10,220; and $1,085 -- a receipt for $83,000 signed by Smith, and a key to an apartment rented by Smith. On January 19, Rizvi called Smith and told him that he had been stopped at the airport and had denied knowing Smith but that the authorities had found Smith's name and number in Rizvi's diary. Smith chastised Rizvi for lying. He said "you are a subscribed member of my corporation here to -- you know."
On January 25, Shergul Khan learned from a member of the Pakistani group that Smith had been in hiding because the men had been stopped at the airport but that the "deal is done now," and Shergul Khan could call Smith to complete the deal. When Shergul Khan called Smith, Smith said that he needed to get the dollar bill's serial number, and then arrangements would be made. Smith later told Shergul Khan to stay out of Detroit and that Smith would send his representative to Khan because the other men had been detained at the airport.
At some time in this chain of events, Shergul Khan went to Cleveland, Ohio/where he stayed at a hotel. Subsequently, Smith gave Shergul Khan the code name, Shakeel, read the serial number to him, 1 and directed him to call the "general manager" in Pakistan to verify the deal. On January 30, Smith called Shergul Khan in Cleveland and told him that Smith would be there at 5:15 pm and that Shergul Khan would be able to "get out of there today."
At about 7:00 pm, Nannette Brown called Shergul Khan from the lobby of Khan's hotel. She said she was "from Detroit." Khan went to the lobby and met Brown and defendant Adams. Adams gave Khan the one dollar bill "receipt." The three went to Khan's hotel room where Brown showed Khan a bag of money that she said contained $40,000. Shergul Khan told Brown and Adams that he had the "clothes" with him. Brown and Adams had expected to get a key to a locked receptacle in Detroit where the heroin was to have been hidden. The three attempted unsuccessfully to contact Smith to clear up this misunderstanding. Brown and Adams refused to complete the deal without contacting Smith, and they left. Fifteen minutes later, Brown called Shergul Khan and said they had decided to take the heroin and complete the deal. Adams went back to Khan's room, gave Khan the money, and took the suitcase containing the heroin. DEA agents arrested Brown, Adams and Shergul Khan immediately after Adams left Khan's room. Smith was subsequently arrested in Michigan. 2
In September 1984, a federal grand jury indicted Smith, Adams, Brown, and 10 other defendants on various drug related charges. Defendants were charged as follows:
Count 1:
All defendants charged with conspiracy to import heroin in violation of 21 U.S.C. Secs. 960 & 963;
Count 2:
All defendants charged with conspiracy to distribute, and to possess with intent to distribute, heroin in violation of 21 U.S.C. Sec. 841(a)(1);
Count 3:
Defendants Smith, Adams, and Brown charged with possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) and aiding and abetting, 18 U.S.C. Sec. (a);
Count 4:
Defendant Smith and a co-defendant charged with a second count of possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) and aiding and abetting, 18 U.S.C. Sec. 2(a);
Counts 5-13:
Defendant Smith charged with unlawfully utilizing a communication facility in violation of 21 U.S.C. Sec. 842(b);
Count 14:
Defendant Smith charged with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.
Brown pleaded guilty. Smith and Adams pleaded not guilty and were tried before a jury by Judge Gilmore in the Eastern District of Michigan in January and February 1985. Smith was found guilty on counts 1 (conspiracy to import), 2 (conspiracy to distribute), 3 (possession with intent to distribute), 8-13 (unlawful use of communications facility), and 14 (continuing criminal enterprise). He was found not guilty of one of the possession charges and two of the communication facility charges. Adams was found guilty on count 3, possession with intent to distribute or aiding and abetting, but was not found guilty of the two conspiracy charges. Smith and Adams appeal.
Smith claims that the evidence was insufficient to support his conviction on any of the counts. He challenges the admission of certain tape recordings as evidence, and he alleges prosecutorial misconduct.
Smith challenges the admission at trial of a large quantity of tape recordings and the use of transcripts of the recordings. Forty-nine tapes were admitted. Eleven of the tapes were from a wiretap on Smith's telephones, and 38 were from monitoring of calls on Shergul Khan's phone. Of these 49 tapes, 30 were in English, and 14 were in either of two Pakistani dialects.
Smith argues that the tapes were improperly admitted at trial because no foundation was laid for their admission, because Smith was never properly identified as being a speaker on the tapes, and because the tapes were hearsay. He does not argue that the government unconstitutionally recorded the conversations admitted at his trial.
1. Foundation. Smith did not object at trial to the alleged lack of foundation for any of these tapes. Therefore, under Fed. R. Evid. 103(a)(1), he cannot assign the lack of foundation as error on appeal. The Court...
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