U.S. v. Calbas, 700
| Decision Date | 02 June 1987 |
| Docket Number | No. 700,D,700 |
| Citation | 821 F.2d 887 |
| Parties | 23 Fed. R. Evid. Serv. 305 UNITED STATES of America, Appellee, v. Enver CALBAS, Defendant-Appellant. ocket 86-1309. |
| Court | U.S. Court of Appeals — Second Circuit |
Deborah J. Stavile, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Bruce A. Green, Asst. U.S. Atty., of counsel), for appellee.
Robert L. Herbst, New York City, for defendant-appellant.
Before LUMBARD, KEARSE and PRATT, Circuit Judges.
Enver Calbas appeals from his conviction for conspiring to distribute, and possess with the intent to distribute, heroin and cocaine in the New York metropolitan area, and elsewhere, from November 1978 until 1984, in violation of 21 U.S.C. Sec. 846.
Indicted on September 7, 1984 with seven others, Calbas was granted a motion for severance due to illness and was separately tried before Judge Broderick in the Southern District in August, 1985 on three counts of the 30-count indictment. Following three days of deliberation, the jury convicted him of the distribution-conspiracy but acquitted him on the other two counts, one charging conspiracy to import heroin and the other charging Calbas with participation in a single act of distribution of heroin in mid-1980. Calbas was subsequently sentenced to ten years imprisonment. 1
Calbas now seeks reversal of his conviction on four grounds: (1) there was insufficient evidence to prove the distribution conspiracy alleged in the indictment or to link Calbas to it; (2) copies of pages from a spiral notebook maintained by the government to be a narcotics ledger of one of the conspirators were admitted without sufficient foundation; (3) testimony of an alleged government informant, proffered by Calbas to demonstrate his non-participation in the conspiracy, was improperly excluded as irrelevant; and (4) in its deliberations, the jury considered information outside the record, offered by a juror, which was prejudicial to Calbas. These arguments were rejected by Judge Broderick. We find no error and, accordingly, affirm Calbas's conviction.
The conspiracy count upon which Calbas was convicted charged him with participation in "a loose-knit group of Albanian and Yugoslavian drug dealers allied together for the purpose of importing and distributing" multi-kilogram quantities of heroin and cocaine. The bulk of these narcotics To establish Calbas's participation in the "loose-knit" conspiracy, the government relied primarily on the testimony of five persons who acknowledged themselves to be his criminal associates: Theresa Schroder, Vehbi Gundez, a.k.a. "Ohran", Beverly Ellis, Ali Ahmeti and Kabil Bajrami. In addition, the government offered the drug records of a sixth co-conspirator, Nazif Vrlaku. The government's case focused on the following: (1) Calbas's involvement in two attempts to import heroin from Turkey in 1979; (2) his efforts in New York that same year to sell heroin for Celal Yuksel, one of his alleged confederates; (3) his involvement in a sale of heroin to another of his co-conspirators, Skender Fici, in Brooklyn in mid-1980; and (4) Calbas's subsequent involvement with Vrlaku, an associate of Fici's. We briefly summarize the highlights:
according to the indictment, originated in Yugoslavia and Turkey and was then smuggled into New York for ultimate retail distribution. Calbas was accused, among other things, of helping to supply other members of the conspiracy with narcotics for resale in New York.
On January 27, 1979, Calbas, a Turkish national then employed as a New York City taxicab driver, travelled to Istanbul, Turkey with Skender Fici on airline tickets which Fici had purchased--one in his own name and one in the name of "E. Calbas"--from Theresa Schroder, a travel agent with whom Fici worked in Staten Island, New York. At the time of purchase, Fici told Schroder that his friend "Enver" had heroin connections in Turkey and asked her to smuggle the heroin into the United States for him and to advance him $20,000 for its purchase. Schroder agreed and on February 6, 1979 met Fici and Calbas at the Istanbul airport and thereafter gave them the promised funds.
The following evening, Calbas, Fici, and Schroder met in Schroder's hotel room in Istanbul with a Turk who brought them a kilogram of heroin concealed in a baklava box. Calbas and Fici watched for the next two hours as the Turk sewed the heroin into the lining of Schroder's mink coat. The next day, Schroder and Fici travelled to Belgrade. From there, Schroder returned to New York with the heroin undetected. Fici remained in Yugoslavia to recruit a childhood friend, Kabil Bajrami, to assist him in reselling the heroin in New York.
Bajrami arrived in New York in mid-March. Together with Fici, he first approached Ali Ahmeti, who agreed to act as a retailer. The arrangements eventually fell through, however, and after another unsuccessful attempt, Bajrami and Fici approached Celal Yuksel, owner of a middle-eastern night club in Greenwich Village frequented by Calbas and various of the other co-conspirators. In May 1979, Yuksel bought one-half of a kilogram of Fici's heroin supply. Thereafter, in June 1979, Bajrami overheard Fici, Yuksel, and Arian Krliu quarreling in an upstairs room at Yuksel's club. Fici later told Bajrami that Krliu was angry with him for failing to pay one of Krliu's heroin sources when Fici and Krliu had been in Istanbul together several months earlier.
In May 1979, after his purchase from Fici, Yuksel recruited Ohran, a business associate, to travel to Istanbul to purchase another kilogram of heroin. Yuksel told Ohran to meet a man named "Mehmet" who would be in Istanbul with Calbas and who would supply the heroin.
On arriving in Istanbul, Ohran and his girlfriend checked into a hotel where Calbas was staying. His arrival was followed on May 25th by that of Beverly Ellis, one of Yuksel's bartenders. Calbas and Ohran met Ellis at the airport and, on the way to their hotel, Ellis gave them $16,000 from Yuksel for the heroin. Calbas thereafter introduced Ohran to the heroin supplier "Mehmet" and, after some negotiations, Ohran and Calbas handed Mehmet money in exchange for a kilogram of heroin. Soon after, Ohran was arrested with his girlfriend in Rome while travelling to New York with the heroin.
In late May, Krliu flew from Istanbul to New York carrying heroin in a false-bottomed suitcase. He was met at the airport by Ahmeti. In early June, Ahmeti delivered a pound of that heroin to Krliu and Yuksel for a pre-arranged sale at a diner in Queens. The buyers turned out to be undercover agents, however, and about a week later Ahmeti was arrested by DEA agents.
Meanwhile Yuksel had recruited Ellis, after her return from Turkey, to store heroin in her apartment and to help distribute it; throughout July and August, Ellis delivered heroin packages to Yuksel's customers.
In late August, Yuksel learned that one of his narcotics associates, Hassan Dungor, had been arrested. When told the news, Joey Lika, one of Yuksel's principal customers, advised Ellis to get rid of the heroin she had been storing for Yuksel and helped her to hide it in a locker at the East Side Airlines terminal in Manhattan. Yuksel and Ellis were arrested shortly thereafter.
By this time, Ahmeti was back in business with Krliu. With contributions from Lika and others, Krliu had helped Ahmeti make bail. Then, on September 15, 1979, the two met with Calbas at a Greenwich Village club. Later at his apartment, Krliu told Ahmeti of a proposal he had received from Calbas to purchase and help resell heroin in Calbas's possession and showed him a sample which Calbas had provided.
Calbas later told Krliu that he had control of eight kilograms of a ten kilogram supply of heroin which had belonged to Yuksel and that he, Calbas, had undertaken to sell the heroin since Yuksel's arrest. The heroin, according to Calbas, was stored in a ship or shipyard located in Houston, Texas. Reluctant to deal with Calbas directly, Ahmeti hesitated.
Several days later, Ahmeti overheard Krliu and Lika discuss with another the possibility of Ahmeti's murder. When Ahmeti confronted him, Lika explained that there had been concern that Ahmeti had agreed to become a government informant while he was in prison. He advised Ahmeti to flee the country, and Krliu offered Ahmeti approximately $100,000 to do so.
Ellis testified that Calbas later told her that there had been similar concern that Ellis had become a government informant during her imprisonment. However, Calbas told her that he had reassured certain unspecified people that Ellis would not cooperate with the government.
In May or June of 1980, Fici introduced Bajrami to Calbas and told him that Calbas would be supplying Fici with heroin which they would purchase at Calbas's apartment in Brooklyn. On the day of the sale, Fici, carrying $15,000, ascended to Calbas's apartment first. Bajrami promptly followed and was admitted by Calbas. In the apartment, Bajrami saw Fici take a package, which he later learned contained a half-kilogram of heroin, as Calbas and a Turkish seaman stood by. Fici told Bajrami that Calbas would be able to continue to supply him with heroin in amounts of one to two kilograms per month and that the heroin would come by ship to the United States.
When Bajrami was subsequently deported from the United States, Fici recruited Vrlaku to take his place. In January 1982, Vrlaku began dealing in heroin and cocaine with undercover DEA agent Roger Marchand. He told Marchand that he had friends in trouble in need of false passports and he asked him for help in obtaining them, indicating that he would be reluctant to continue to sell to Marchand without such assistance. After further dealings, Vrlaku...
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