U.S. v. Ismail

• Decision Date: 18 March 1985
• Docket Number: No. 84-1489,84-1489
• Citation: 756 F.2d 1253
• Parties: 17 Fed. R. Evid. Serv. 1450 UNITED STATES of America, Plaintiff-Appellee, v. Mohammed ISMAIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1253

756 F.2d 1253

17 Fed. R. Evid. Serv. 1450

UNITED STATES of America, Plaintiff-Appellee, v. Mohammed ISMAIL, Defendant-Appellant.

No. 84-1489.

United States Court of Appeals Sixth Circuit.

Argued Jan. 21, 1985.

Decided March 18, 1985.

David W. McMorrow (argued), Ryan, Ryan and McMorrow, Kalamazoo, Mich., for defendant-appellant.

John A. Smietanka, U.S. Atty., Thomas J. Gezon (argued), Grand Rapids, Mich., for plaintiff-appellee.

Before CONTIE and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Mohammed Ismail, a Pakistani national, appeals from a judgment entered after a jury convicted him of conspiring to import and distribute heroin (Count I), of importing heroin (Count II) and of using a communication facility to facilitate the importation and distribution of heroin (Count III). Ismail contends that the district court should not have permitted his son to testify against him because of an asserted parent-child privilege, that the court should not have admitted testimony about two collateral criminal acts under Federal Rule of Evidence (FRE) 404(b) and that the court should have ordered a new trial because the government failed, albeit unintentionally, to produce one piece of exculpatory evidence after defense counsel had made a specific request. Finding none of these arguments meritorious, we affirm the judgment of the district court.

I.

On April 5, 1983, a United States Customs Service official at Kennedy Airport in New York opened a mailed package entering this country from Karachi, Pakistan. The package, which was addressed to Valerie Davis of 1124 Dunham Street, Grand Rapids, Michigan, contained two boxes. Each box in turn contained 220 grams of approximately ninety percent pure heroin. The Customs Service forwarded the package to the Drug Enforcement Administration (DEA) which replaced the heroin with a fake substance, placed an electronic beeper in the package and executed a controlled delivery to the addressee.

After the delivery, DEA agents observed the Davis home for several hours until the electronic beeper's signal began to fade. After obtaining a search warrant, the agents searched the home and recovered the package. Davis then told the agents that a man named Lorenzo Johnson had offered her $200 if she would receive the package for him. The agents asked Davis to telephone Johnson and she complied. Johnson arrived shortly thereafter, paid Davis $250 and then left. He was arrested following a brief car chase. ¹

When arrested, Johnson had on his person approximately $4,600 in cash, two black address books and numerous small pieces of paper. One address book contained names and telephone numbers. On the second page of the book appeared the name "Ismile," the notation 107-C and a telephone number. It was later determined that defendant Ismail had once rented apartment 107-C of the Amsterdam Apartments in Grand Rapids. In a separate section of this address book appeared accounts that Johnson had maintained with named individuals. At least one of these accounts had separate columns labeled "boy" and "girl." DEA Agent Robins testified that in street parlance, "boy" means heroin and "girl" means cocaine. Thus, the accounts appeared to be records of drug transactions. The appellant's name did not appear among these accounts.

The DEA agents found Ismail's Karachi, Pakistan business card among the seized pieces of paper. The agents also found a 5 X 7 piece of paper in Ismail's handwriting. The document was labeled "Statement of Account as on Jan. 31, 1983." The statement indicated that between October 1982 and January 1983, Johnson had paid $37,400 for 415 grams of an unspecified item. Johnson had been supplied with three boxes containing 220 grams, 220 grams and 180 grams respectively of an unspecified item for a total of 620 grams. This total multiplied by $90 per gram yielded "total supplies" of $55,800. Subtracting the $37,400 already paid resulted in a "final balance" of $18,400. To this amount the statement added "previous dues" of $13,600 for a "total balance" of $32,000. Also included was the notation "CAR-$475." ² The statement concluded with the words "all previous statements are now destroyed."

DEA Agent Robins and three other agents arrested Ismail on December 2, 1983 at Ismail's recently purchased Grand Rapids home. After being informed of his constitutional rights, Ismail gave Robins a pre-typed letter which chronicled Ismail's life history, which denied any involvement in narcotics trafficking and which stated that Ismail had met Johnson through his son's first wife. The letter also stated that Johnson, like all of Ismail's friends, had been given the Karachi business card so that Ismail could entertain him if he ever visited Pakistan.

After reading the letter, Agent Robins confronted Ismail with the Statement of Account that had been found on Johnson. Robins testified that Ismail then responded, "yes, Mr. Robins, we have to talk" (Tr. at 343). Robins further testified that Ismail eventually stated, "yes, I know. I have never sold any heroin, but I made arrangements for the heroin to come to Grand Rapids" (Tr. at 343-44).

In addition to Robins' testimony about Ismail's oral statement, the address book and the various slips of paper (including the Statement of Account), the government produced two witnesses who testified that $90 per gram was a reasonable price for heroin entering the United States. Davis testified that Johnson had referred to Ismail as a "connection," although the type of connection that Johnson had meant was not specified. The government also introduced a gram measuring scale and various financial records.

Furthermore, the government subpoenaed Ismail's son, Azhar, to testify. Azhar was thirty years old and was a United States citizen living in Grand Rapids at the time of the trial. He had previously been subpoenaed to testify before the grand jury. To protect his father, he had lied by testifying that he knew nothing about his father's alleged involvement in drug trafficking. Azhar subsequently approached the United States Attorney about the grand jury testimony. He apparently wanted to tell the government the truth without having to testify against his father at a public trial. ³ The subpoena to testify at trial followed.

Both the appellant and his son subsequently asserted the parent-child privilege. After the district court rejected this claim, Azhar agreed to testify fully in return for a promise that he would not be prosecuted for his perjured grand jury testimony. Defense counsel objected to any testimony regarding the appellant's prior criminal conduct. The district court overruled this objection on the ground that the testimony was admissible under F.R.E. 404(b).

Azhar testified that his father had visited the United States on numerous occasions since 1977. Azhar stated that on the first visit, he met his father at a Chicago airport and drove him to Grand Rapids. During the trip, the appellant confided that he had cocaine to sell. He showed Azhar the cocaine when they reached Grand Rapids. Azhar testified that although his father sold the cocaine, the deal later was rescinded because the cocaine was of poor quality. According to Azhar, his father then discarded the cocaine.

Azhar next testified that during the first or second visit, his father asked to be introduced to someone who dealt in drugs. Although reluctant to do so, Azhar introduced his father to Johnson. Azhar further testified that during the third or fourth visit ⁴ his father confided that he possessed hashish which he intended to sell to Johnson. Although Azhar never saw his father sell hashish to Johnson, the appellant told Azhar that he had done so.

Finally, Azhar testified that he eventually tried to disassociate himself from his father. In April 1983, for instance, the appellant sent an envelope to Azhar containing a letter to be sent to Johnson. Azhar testified that he destroyed the letter without reading it.

Ismail's defense was to deny all involvement in drug trafficking. Although Ismail admitted that he knew Johnson, he claimed that he and Johnson had engaged in bulk transactions in precious stones, gems and inexpensive jewelry. He denied admitting to Agent Robins that he had mailed the package of heroin to the United States. Moreover, Ismail presented evidence that $90 per gram was a reasonable price for bulk sales of precious stones, gems and jewelry. Furthermore, a defense expert testified that ninety percent pure heroin would wholesale for $300-$400 per gram rather than $90 per gram as stated by the government's witnesses. Ismail contended, therefore, that the Statement of Account found on Johnson was a record of transactions in precious stones, gems and jewelry rather than a record of heroin sales.

Ismail also presented evidence that he had several businesses in Pakistan. The apparent purpose of this evidence was to show that he had obtained all of his money from sources other than drug dealing. Finally, the appellant attacked the credibility of his son. Defense counsel attempted to impeach Azhar on cross-examination with the latter's grand jury testimony. The subject of Azhar's possible mental instability was broached. Furthermore, a defense witness stated, contrary to Azhar's testimony, that he had accompanied Azhar and the appellant on the drive from Chicago to Grand Rapids in 1977 and that cocaine had not been mentioned.

After the jury returned a verdict of guilty, the court ordered the preparation of a pre-sentence report. The completed report mentioned that Johnson had possessed a second black address book and a chrome matchbox at the time of his arrest. ⁵ Although the defense had made a specific request for Johnson's address book before trial, the government had not produced the second address book. This address book contained both pages for recording names, addresses and phone numbers and a separate writing...