U.S. v. Kandiel

• Decision Date: 23 January 1989
• Docket Number: No. 87-5385,87-5385
• Parties: 27 Fed. R. Evid. Serv. 670 UNITED STATES of America, Appellee, v. Mohammed Ibrahim KANDIEL, a/k/a Jeff Howard, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 967

865 F.2d 967

27 Fed. R. Evid. Serv. 670

UNITED STATES of America, Appellee, v. Mohammed Ibrahim KANDIEL, a/k/a Jeff Howard, Appellant.

No. 87-5385.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1988.

Decided Jan. 23, 1989.

John W. Lundquist, Minneapolis, Minn., for appellant.

Jerome G. Arnold, Atty. Gen., Minneapolis, Minn., for appellee.

Before HEANEY, ^* Circuit Judge, ROSS, Senior Circuit Judge, and HILL, ^** Senior District Judge.

ROSS, Senior Circuit Judge.

Mohammed Ibrahim Kandiel, a/k/a Jeff S. Howard (appellant), was convicted by a jury on thirteen counts of various firearms violations, 18 U.S.C. Sec. 922(g)(5), 26 U.S.C. Sec. 5861, 18 U.S.C. App. Sec. 1202(a)(5), making false statements in applications for passports, 18 U.S.C. Sec. 1542, making false representation of citizenship in enlisting in the United States Army, 18 U.S.C. Sec. 911, and making false statements in applications for federal firearms dealer and import licenses, 18 U.S.C. Sec. 924(a). Appellant was sentenced to a prison term of 42 months concurrent on all counts.

The issue of appellant's true identity was critical at trial and remains so on appeal. Appellant asserts that he is not Mohammed Ibrahim Kandiel, an Egyptian national, as the government contends. Instead, he claims he is American born, Jeff S. Howard. For reversal appellant argues that the district court improperly allowed expert testimony on the statistical probabilities of a familial relationship between appellant and Egyptian national Ahmed Kandiel, based on blood sample comparisons of the two men. Appellant also argues that he was prejudiced by the admission of other crimes evidence, that the trial court lacked impartiality which violated his right to a fair trial, and that tape recordings purportedly between the appellant and his Egyptian family were admitted without foundation. For the reasons discussed below, we affirm the conviction.

I.

Appellant claims that he is a life-long resident of the United States, having been born in Charleston, West Virginia on December 21, 1952. He has been a Minnesota resident for many years, has operated two game farms and has held several firearms licenses issued by the Bureau of Alcohol, Tobacco and Firearms.

In contrast, the government's evidence indicated that appellant is Mohammed Ibrahim Kandiel, born in Shorba, Egypt on March 20, 1948; that he has two sisters, Nagwa and Shadia, and a brother, Ahmed; that he left home at the age of 16 and in early 1968 was captured in the Israeli-PLO conflict.

The government's evidence showed that in April 1972, the appellant was traveling in Paris, France where he met five American women from Madison, Wisconsin. At that time appellant was calling himself "Jack." He spoke poor English and had a foreign accent. In January 1973, appellant was fingerprinted by the Brunswick, Georgia police under the name Geoffrey Scott Howard, born September 13, 1949 in Charleston, West Virginia. Another Geoffrey Scott Howard, also born in Charleston, West Virginia, had also traveled extensively through Europe, including Paris, France in October and November 1972.

In the summer of 1973, appellant went to Madison, Wisconsin where he contacted two of the American women he had met earlier in Paris. He later became romantically involved with one of the women, who then gave birth to his child. The child was named Shadia, which is also the name of Mohammed Kandiel's sister.

In August 1973, appellant was fingerprinted by the Minneapolis police using the name Jeff Soun Howard, born December 21, 1953, a name and birthdate different from that which he had used eight months earlier in Brunswick, Georgia.

In February 1977, appellant's purported brother, Ahmed Kandiel, arrived in the United States and resided with appellant. In the summer of 1980, appellant's parents arrived from Egypt and stayed with him for four months.

In April 1981, the United States Immigration and Naturalization Service began its investigation of appellant. Shortly thereafter, appellant made application for a delayed birth certificate from West Virginia, submitting with the application a false affidavit of identity. Upon the issuance of the birth certificate, appellant made application for a United States passport using the newly acquired birth certificate as evidence of citizenship. The record discloses that in establishing his identity for his passport applications, appellant obtained the signatures of several individuals on false affidavits. The charges against appellant for making false statements stemmed from these applications.

Furthermore, the government's evidence showed that in March 1984, using his false identity, appellant made application for a federal firearms dealer license. In August 1985, appellant made application for a federal firearms importer license, again using his false identity. Also in August 1985, appellant traveled to the Middle East countries of Syria, Jordan and Egypt. While in Egypt he visited his parents and his brother.

In March 1987, search warrants were executed and appellant was taken into custody. Items seized from his home included old photographs of appellant and his family in Egypt, tape recordings of conversations in Arabic between appellant and his family, as well as various firearms.

In June 1987 trial commenced. During trial, the judge ordered appellant to submit a blood sample for genetic marker testing. This sample was then compared with a sample obtained from Ahmed Kandiel, the man who claims he is appellant's brother. Evidence of the blood tests, which showed that appellant was seventeen to one times more likely to be the brother of Ahmed Kandiel than if picked at random, were admitted over appellant's objections.

The jury subsequently returned a verdict finding appellant guilty as charged. This appeal followed.

II.

Appellant's first point urged for reversal is that expert testimony concerning the genetic marker testing of appellant and Ahmed Kandiel was improperly admitted because of its untimeliness and its speculative and conjectural nature.

On the day before trial the government learned that in 1981 a sample of appellant's blood had been tested by Dr. Herbert Polesky for genetic tracings in a contested paternity action. On the first day of trial, the government placed Dr. Polesky on the witness list and appellant's purported brother, Ahmed Kandiel, submitted a sample of his blood for genetic testing and comparison with appellant's 1981 sample. On the second day of trial the government moved the court to compel appellant to submit a sample of his blood to determine the presence of the HLA genetic marker, a relatively precise genetic marker not obtained from the 1981 blood test. The court eventually granted the motion and ordered the blood sample to be drawn, and further ordered the government to provide the defense with results so that it could prepare its cross examination.

The defense, however, did not receive Dr. Polesky's report until the day he testified. The appellant now argues that he was deprived of his right to a fair trial because his attorney did not have time to adequately prepare his cross examination. To this the government counters that the result of the second blood test was made available to the defense within fifteen minutes of its receipt by the government. Despite the trial court's extension to the defense counsel of the opportunity to move for a continuance, no request for additional time nor any motion for a continuance was made. Because the defense counsel had been on notice for several days that the blood test was to be made, the trial court ruled that the defense had ample opportunity to research the issue or perform its own test for the purpose of preparing an adequate cross examination. Moreover, appellant had available to him the results of the 1981 genetic testing which included all tested genetic markers except the HLA marker.

Appellant's claim was readily curable by a motion for continuance. Defense counsel chose not to avail himself of this opportunity and therefore the claim of untimeliness was not properly preserved for appeal. Nor has appellant alleged any facts which would constitute plain error or abuse of discretion in absence of a sua sponte continuance order by the court. See United States v. Steffen, 641 F.2d 591, 595 (8th Cir.), cert. denied, 452 U.S. 943, 101 S.Ct. 3091, 69 L.Ed.2d 959 (1981).

Appellant also argues that the trial court erred in allowing expert testimony on the statistical probabilities of a familial relationship between appellant and Ahmed Kandiel. Dr. Polesky testified that, based on a comparison of the HLA genetic markers when applied to population frequencies of blood group typings, appellant was seventeen times more likely than someone from a random population to be the brother of Ahmed Kandiel. Furthermore, Dr. Polesky testified as to the presence of the negative Duffy factor in the blood of both appellant and Ahmed, as well as to the frequencies of the Duffy genetic marker in various populations. Dr. Polesky opined that the probability of a negative Duffy factor being present in the child of a Native American, as appellant claimed his mother was, would be approximately one in 1,000. Appellant argues that such testimony impermissibly established by mathematical certainty that appellant was Egyptian-born Mohammed Kandiel.

Dr. Polesky's testimony was admitted by the trial court against a general objection by defense counsel that such testimony would be speculative and conjectural. Although the trial court instructed defense counsel to make specific objections during Dr. Polesky's testimony, defense counsel refrained from doing so.

Appellant's argument rests primarily on our holding in United States v. Massey, 594 F.2d 676, 681 (8th Cir.1979), where we held that expert testimony on microscopic hair comparison analysis and statistical probabilities of suspect identification had been...