U.S. v. Bahadar

• Decision Date: 22 January 1992
• Docket Number: D,No. 366,366
• Citation: 954 F.2d 821
• Parties: 34 Fed. R. Evid. Serv. 944 UNITED STATES of America, Appellee, v. Sher Malik BAHADAR, Defendant-Appellant. ocket 91-1263.
• Court: U.S. Court of Appeals — Second Circuit

Page 821

954 F.2d 821

34 Fed. R. Evid. Serv. 944

UNITED STATES of America, Appellee, v. Sher Malik BAHADAR, Defendant-Appellant.

No. 366, Docket 91-1263.

United States Court of Appeals Second Circuit.

Argued Nov. 20, 1991.

Decided Jan. 22, 1992.

Ira Belkin, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Susan Corkery, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Spencer Weber Waller, Brooklyn, N.Y., for defendant-appellant.

Before PRATT, MAHONEY and McLAUGHLIN, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Sher Malik Bahadar appeals from a judgment of conviction entered after a jury trial before John R. Bartels, Judge. Bahadar was convicted of conspiracy to possess with intent to distribute over one kilogram of heroin, attempted possession of over one kilogram of heroin, and possession with intent to distribute heroin. See 21 U.S.C. §§ 841(a)(1), 846. Bahadar makes five claims of error, all of which we reject. We write principally to address the proper role of defense witness immunity and the applicability of our recent decision in United States v. Salerno, 937 F.2d 797 (2d Cir.1991), petition for cert. filed (U.S. Nov. 27, 1991) (No. 91-872), to the exculpatory hearsay statement of an unavailable witness offered as a statement against penal interest under Fed.R.Evid. 804(b)(3).

FACTS AND BACKGROUND

At this point we summarize only the basic facts; other portions of the factual and procedural background are addressed later in the opinion where specifically relevant to the legal analysis.

The arrests of Sher Malik Bahadar and Mohammed Ali were the result of a Drug Enforcement Administration ("DEA") investigation of Pakistani drug smugglers. The DEA's informant, Shaheen Manzour (who used the name "Hagi"), pretended to be the courier for a 1.5 kilogram shipment of Pakistani heroin. In preparation for the deal, Manzour engaged in numerous phone conversations with Ali, most of which dealt with the time and place for the exchange. In these conversations, Ali made occasional reference to a confederate named "Abdul", who wanted to give "Hagi" the $5,000 courier fee and would actually receive the heroin. After several of these conversations, Ali and "Hagi" agreed that the transaction would take place on April 9, 1990.

At 1:15 pm on April 9, DEA special agents Clay Price and Mike Smith began conducting surveillance of Ali at his place of employment, the Bionic Bagel on Nostrand Avenue in Brooklyn. At 2:00 pm, Ali left the Bionic Bagel and got into his car. Approximately twenty minutes later, Ali pulled up at an apartment complex in Brooklyn. After Ali had entered one of the buildings, returned to his car, and began to reenter the apartment building, Bahadar pulled up and parked on the same side of the street as had Ali. Bahadar left his car and walked up to Ali; the two of them then returned to Bahadar's car and drove to a pay phone at Avenue Z and First Street. Ali got out and appeared to make a phone call.

After that stop, Ali and Bahadar were observed at approximately 2:45 pm returning to the apartment complex. They returned to Bahadar's car at 3:15 pm, whereupon Bahadar drove Ali to another set of pay phones at Avenue X and First Street. When the DEA agents caught up to them, Bahadar appeared to be on the phone. Bahadar then handed the receiver to Ali and stood by as Ali continued the conversation. After they left this public telephone, Ali and Bahadar drove to the Ceasar's Bay Bazaar parking lot along the Belt Parkway. They both got out of the car and walked around the parking lot, pointing at both the Crossland Bank and the Citibank located there.

At approximately 3:30 (the same time that agents Price and Smith observed Ali and Bahadar making a phone call at Avenue X and First Street), "Hagi" returned a phone call made to his beeper. A person who identified himself as "Khan" answered, and told "Hagi" to hold on for a minute so that "the concerned person" could talk to him. A moment later, Ali came on the line and made arrangements to meet "Hagi" between 5:00 and 5:30 pm outside the Crossland Bank at Ceasar's Bay Bazaar shopping plaza. Ali told "Hagi" that he would be wearing a white cap for identification purposes.

After returning to the apartment complex yet again, Ali and Bahadar returned to Bahadar's car. Bahadar drove Ali back to the Ceasar's Bay Bazaar plaza, and Bahadar parked in front of the Citibank, where Bahadar got out and walked around the area for a few minutes. When Bahadar returned to the car, Ali got out, wearing a white hat, and walked over to the Crossland Bank branch while Bahadar remained in his car, moving it to different positions in the parking lot about five times.

Around 5:30 pm, Manzour ("Hagi") arrived at the Crossland bank, and Ali got into "Hagi" 's car. They talked for two or three minutes, then got out of the car and began walking toward Bahadar's car, which was then parked near the Citibank. Both Manzour and Ali got into Bahadar's car. After Manzour and Bahadar exchanged pleasantries, Ali asked Manzour, "[W]here is the stuff"? Manzour replied by asking, "[W]here is the money"? Bahadar reached into the glove compartment of his car and produced a bag containing $4,000. As Manzour was looking at the money, Bahadar told Ali (in Punjabi) to "look at the stuff and check it as well."

After Ali assured Manzour that the bag contained the promised $5,000, the two of them returned to Manzour's car, where Manzour produced a clothing-wrapped shopping bag containing 1700 grams of white flour and two grams of heroin. Manzour gave this package to Ali, and as Ali began walking back to Bahadar's car, both Ali and Bahadar were arrested.

DISCUSSION

On appeal, Bahadar claims (1) that Judge Bartels improperly allowed Ali to assert his fifth amendment privilege against self-incrimination; (2) that Judge Bartels should have granted Ali immunity; (3) that since Ali was unavailable to testify, one of his statements--which, Bahadar argues, exculpated him--should have been admitted as a statement against penal interest under Fed.R.Evid. 804(b)(3); (4) that Judge Bartels committed reversible error by permitting the government to read English language translations of tape-recorded conversations instead of playing the tapes themselves in their original languages (primarily Punjabi and Urdu); and (5) that there was insufficient evidence that Bahadar knew that heroin was involved in the transaction. We address each of these arguments in turn.

A. Ali's fifth amendment privilege

Ali, who had been charged in the same three-count indictment as had Bahadar, quickly confessed to his participation in the heroin smuggling scheme. He told the DEA that "Bahadar knew we were going to [Ceasar's Bay Bazaar] to meet Haji, get the 1.5 kilograms of heroin and pay Haji $5,000.00 in courier fees", and that Ali "would call Bahadar each day to tell him about what was going on so that he would be ready when I needed him." Bahadar's counsel wished to call Ali, who had yet to be sentenced, in order to establish his defense that Bahadar was nothing more than an unwitting driver with no knowledge whatsoever of the transaction. After some initial confusion regarding whether Ali would claim the privilege, Ali did in fact invoke the fifth amendment. Over objection by Bahadar's counsel, Judge Bartels concluded that Ali had a valid fifth amendment privilege.

Initially, we note that since Ali had not been sentenced on the count to which he pled guilty (and was faced with two open counts, later dismissed by the government), any testimony which he gave at Bahadar's trial could have been used as the basis for an upward departure at sentencing, see United States v. Domenech, 476 F.2d 1229, 1231 (2d Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 95, 38 L.Ed.2d 77 (1973), or as evidence to support a prosecution on the two open counts. Moreover, had he contradicted his prior statements--which would have been necessary in order to exculpate Bahadar--Ali would have exposed himself to a charge of having willfully obstructed the administration of justice, either by "providing a materially false statement to a law enforcement officer" during the investigation (or by "providing materially false information to a judge" during the prosecution) of the "instant offense"; either way, he would have been subjecting himself to a two-point sentence enhancement. See U.S.S.G. § 3C1.1, comment. (nn. 3(f), 3(g)); United States v. Perdomo, 927 F.2d 111, 118 (2d Cir.1991).

Bahadar argues that since Judge Raggi, the district judge entrusted with Ali's sentencing, was ready, willing, and able to sentence Ali immediately, Judge Bartels should have ensured that Ali was promptly sentenced in order to remove any impediment to Ali's testimony. Bahadar suggests that the government purposely left Ali unsentenced so as to avoid Bahadar's use of his exculpating testimony at trial.

We are aware that the structure of the criminal justice system allows for the possibility of such a sharp practice. And, in such a case, we might utilize a judicial remedy for such prosecutorial overreaching. See, e.g., United States v. Pinto, 850 F.2d 927, 935 (2d Cir.) (suggesting that in a case of prosecutorial overreaching, a trial court may, in proper circumstances, order the government to grant immunity to a defense witness), cert. denied sub nom. Vence v. United States, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988). However, the failure to sentence Ali had no effect on the proper invocation of his fifth amendment privilege. Indeed, had Ali been sentenced, and the open counts against him dismissed, he still could have been prosecuted in a separate indictment for the crime of perjury once he testified contrary to his prior statements. See 18 U.S.C. § 1621. Thus, there is no merit to Bahadar's claim that Ali had no valid fifth amendment privilege to invoke.

B. "Judicial" immunity

Bahadar further argues that under United States v....