U.S. v. Bastanipour

• Decision Date: 30 December 1982
• Docket Number: No. 81-2369,81-2369
• Citation: 697 F.2d 170
• Parties: 12 Fed. R. Evid. Serv. 392 UNITED STATES of America, Plaintiff-Appellee, v. Mohammad Ali BASTANIPOUR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 170

697 F.2d 170

12 Fed. R. Evid. Serv. 392

UNITED STATES of America, Plaintiff-Appellee, v. Mohammad Ali BASTANIPOUR, Defendant-Appellant.

No. 81-2369.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1982.

Decided Dec. 30, 1982.

James M. Shellow, Shellow, Shellow & Glynn, Milwaukee, Wis., for defendant-appellant.

William R. Coulson, Chief, Crim. Receiving and Appellate Div., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit judge.

FAIRCHILD, Senior Circuit Judge.

Defendant appeals from a conviction on three counts arising out of an alleged attempt to smuggle heroin from Iran into the United States. We hold: (1) that the Government's attempted pretrial appeal of a non-appealable order did not divest the district court of jurisdiction to try the case; (2) that a special agent's failure to retain the handwritten draft of a typed report did not violate defendant's rights under the Constitution or Jencks Act; (3) that the district court did not err in refusing to grant a mistrial when the special agent's testimony described a conversation not included in the report earlier disclosed to the defense; (4) that there was no error in instructing as to defendant's out-of-court statements; (5) that the Government's failure to furnish to the defense a copy of a computer program relating to expert testimony did not render the testimony inadmissible; (6) that defendant was not entitled to an evidentiary hearing concerning factually unsupported allegations of Government interference with the availability of an expert witness; (7) that the district court did not abuse its discretion in proceeding to trial without further waiting for responses to letters rogatory; (8) that cross-examination of defendant as to particular instances of conduct not charged was properly permitted. We therefore affirm defendant's conviction.

I. The Facts

On April 15, 1980, Mohammad Ali Bastanipour, an Iranian citizen, arrived at Chicago's O'Hare International Airport on board a flight originating in Tehran, Iran. He was carrying with him 21 caviar tins which he claimed to have purchased as gifts for friends at a duty free shop in the Tehran Airport.

The caviar cans appeared to be hermetically sealed. Each was wrapped in tissue, tied with string, and sealed with a metal seal. In groups of three or four, the tins were bundled in tissue paper, and attached to each bundle was a torn piece of paper with characters written on it in the Farsi language. The bundled tins were contained in two green plastic bags.

Upon opening one of the bags, a Customs official at O'Hare noticed caviar on some of the tissue paper. Further investigation revealed that 20 of the 21 tins contained caviar at the top with false bottoms underneath and heroin beneath the false bottoms. In all there were 8.8 pounds of heroin, having a street value of over $9,800,000.

Bastanipour was indicted on three counts: importation of heroin, 21 U.S.C. Sec. 952(a)(1); possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1); and making a false statement in a Customs Declaration, 18 U.S.C. Sec. 1001. A jury returned verdicts of guilty as to each count, and post-trial motions for a new trial, for judgment of acquittal, and for arrest of judgment were denied by the district court.

Defendant now appeals from the judgment and the order denying his post-trial motions.

II. The Merits

Bastanipour raises several arguments, but does not challenge the sufficiency of the evidence supporting his conviction on each of the three counts.

A. Divestiture of Jurisdiction

Prior to trial, Bastanipour filed a motion entitled "Motion to Compel Cooperation of Government Personnel". His counsel alleged that he had located a Dr. Crown who appeared to be the only person in the United States qualified to compare Farsi handwritings. Dr. Crown asserted, however, that he was an employee of the Central Intelligence Agency and "that he could not testify on behalf of a defendant in a federal criminal case because his contract with the Central Intelligence Agency prevented him from testifying against the United States government." Defendant's motion sought "an order prohibiting the Central Intelligence Agency from enforcing the terms of its contract" concerning such testimony. A minute order dated January 5, 1981 recited "Defendant's motion to compel cooperation of Government personnel is granted."

The Government moved for reconsideration, arguing lack of standing, lack of jurisdiction, and the like. The motion was denied, and the Government appealed. The district court's order was not stayed, Dr. Crown declined to go forward with examination and testimony, and Bastanipour obtained a different expert. The appeal remained pending until dismissed on Government motion after the trial.

Bastanipour argues, as he did to the district court, that the appeal divested the district court of jurisdiction of the case.

There is a general rule that an appeal suspends the power of the court below to proceed further in the cause, except to take such steps as will assist the appellate court in its determination. Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 140, 27 L.Ed. 888 (1883); United States v. Lafko, 520 F.2d 622, 627 (3rd Cir.1975).

The rule does not operate, however, where there is a purported appeal from a non-appealable order. United States v. Garner, 663 F.2d 834, 838 (9th Cir.1981), Moore's Federal Practice p 203.11, at 3-51 (2d ed. 1982). ¹

We deem the order in this case not to have been appealable. It was not a final disposition of the case and was not within the list of orders made appealable by 18 U.S.C. Sec. 3731 however liberally construed.

Government counsel apparently thought that the order enjoyed Cohen finality and was therefore appealable. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Cf. Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). We are not so persuaded. Although the order involved the Government's interest in its secrecy contract with an employee, it merely "granted" a somewhat vague motion. In order to be final under Cohen, an order must "finally determine claims of right separable from and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225. See also Wilk v. American Medical Ass'n, 635 F.2d 1295, 1298 (7th Cir.1980).

Even assuming Cohen finality and appealability so that the district court lost jurisdiction over the subject matter of the particular order, we conclude it still would have had jurisdiction over the merits of the case. Akerly v. Red Barn Systems, Inc., 551 F.2d 539, 543 (3rd Cir.1977); Silberman v. Bogle, 486 F.Supp. 70, 72 (E.D.Pa.1980); Moore's Federal Practice p 203.11 at 3-54.

B. Failure to Retain Handwritten Draft of Typed Report

Bastanipour claims that the destruction of a handwritten draft of a typed report by Special Agent Joseph P. Salvemini of the Drug Enforcement Agency (DEA) violated his constitutional right to confrontation, the Jencks Act, and express DEA policy. Accordingly, he argues that the agent's testimony should not have been admitted into evidence.

The record indicates that the agent interviewed Bastanipour at the airport following his arrest, but took no rough notes at that time. Instead, after the interview, the agent wrote a longhand draft of a report. That draft was given to a secretary for typing. When the agent received the typed version and compared it for accuracy, he discarded the longhand draft.

The district court, in its decision on the motion for a new trial, rejected the argument that the agent should not have been permitted to testify. The court noted that Bastanipour had been permitted to cross-examine the agent, without restriction, both at the hearings before trial and at the trial, and was able to show that Salvemini had violated a policy of the DEA. The court further observed that Bastanipour did not suggest "that any statements would have been contained in the handwritten notes which contradicted the damaging material in the typewritten report," but merely argued "that the matters omitted from the typewritten report would in some way had been revealed to him had the handwritten notes been preserved."

We agree with the district court that Bastanipour's right of confrontation was not abridged. The district judge allowed defense counsel to cross-examine the agent about his destruction of the handwritten draft, and on other matters. Defense counsel emphasized the point in closing argument, and the judge gave an instruction that the jury could consider the agent's action as going to the weight and credibility of his testimony. We cannot accept Bastanipour's argument that the agent, by destroying his draft, placed himself completely beyond the range of effective cross-examination.

Likewise, we find no violation of the Jencks Act. After a prosecution witness has testified on direct, the Government, upon request, is required to furnish the defense with any pre-trial statements of the witness which relate to the subject matter of his testimony. See 18 U.S.C. Sec. 3500(b). In United States v. Batchelder, 581 F.2d 626 (7th Cir.1978), rev'd on other grounds, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), we considered the question of whether a special agent's discarding of handwritten reports of meetings with the defendant, after the notes were typed, violated the Jencks Act. Relying upon our earlier decision in United States v. Harris, 542 F.2d 1283, 1292 (7th Cir.1976), we held there was no violation.

Unlike Batchelder, the handwriting here in question consisted of a first draft, rather than notes written at the time of the interview...