U.S. v. Khan

• Decision Date: 15 March 1984
• Docket Number: No. 83-1245,83-1245
• Citation: 728 F.2d 676
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Agha Kaleem Ullah KHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 676

728 F.2d 676

UNITED STATES of America, Plaintiff-Appellee, v. Agha Kaleem Ullah KHAN, Defendant-Appellant.

No. 83-1245.

United States Court of Appeals Fifth Circuit.

March 15, 1984.

Allen F. Cazier, court-appointed, San Antonio, Tex., for defendant-appellant.

Sidney Powell, John Murphy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, REAVLEY and WILLIAMS, Circuit Judges.

REAVLEY, Circuit Judge:

Agha Kaleem Ullah Khan (Khan) appeals from a conviction of conspiracy to possess heroin with intent to distribute and possession of heroin with intent to distribute. See 21 U.S.C. Secs. 841(a)(1), 846 (1976); 18 U.S.C. Sec. 2 (1976). Khan argues that he was deprived of his right to compulsory process under the Sixth Amendment by the district court's failure to recess the trial until a codefendant's guilty plea had been accepted. Khan also contends that the district court erred by failing to dismiss the indictment's conspiracy count for its lack of an overt act allegation and by failing to grant Khan's motion for judgment of acquittal based on insufficiency of the evidence. We affirm.

I

The events leading to Khan's conviction began when a government informant in San Antonio, Texas, contacted his friend Gul Riaz, who resided near Chicago, Illinois. The informant attempted to get Riaz to find persons interested in purchasing cocaine. In late November 1982 Ali S. Khan (Ali) and Khan visited Riaz and expressed an interest in selling heroin. After Riaz contacted the informant, telephonic negotiations began for the delivery and purchase of one pound of high purity heroin. The informant was to act as the middle man between Ali and Khan and the San Antonio "purchasers," who were actually Drug Enforcement Agency (DEA) officials. Ali and Khan flew from Chicago to New York, where they apparently picked up the heroin, and proceeded to San Antonio where the informant met them.

The informant introduced the DEA agents to Ali at a San Antonio hotel, where they made arrangements for the transfer of cash for heroin. Later, while DEA agents waited in a car parked outside the hotel, the informant and Ali walked toward the car, with Khan trailing some distance behind. As Khan waited behind a van, the informant and Ali reached the car. The informant entered the vehicle and Ali, not having the heroin, walked over to Khan's location for a moment and returned to the car with the heroin. The DEA agents arrested Ali and Khan shortly thereafter.

The indictment named Khan, Ali, and Riaz in both counts--conspiracy and the substantive charge of possessing heroin with intent to distribute. Khan filed a motion for severance, pursuant to Rule 14, Fed.R.Crim.P., alleging that Ali would testify to Khan's innocence if the motion were granted. Because Riaz and Ali entered into plea agreements, ¹ the motion became moot, and Khan went to trial alone on February 15, 1983. The district judge had scheduled Ali's re-arraignment for February 25, 1983. On the third day of his trial, February 17, Khan moved to continue the trial until after Ali's re-arraignment or, in the alternative, to recess so that the court could accept Ali's plea. The district court denied the motion. The jury later found Khan guilty on both counts.

II

The Sixth Amendment gives an accused the right of compulsory process to obtain witnesses in his behalf. See, e.g., Dickerson v. Alabama, 667 F.2d 1364, 1369 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). "This right is a fundamental element of due process of law." Id. (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). This circuit has set forth factors for courts to consider "in determining whether an accused was deprived of his right to compulsory process by a denial of a motion for a continuance...." Id. at 1370.

[T]he diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony.

United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976), quoted in Dickerson, 667 F.2d at 1370; Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir.1981).

The Dickerson court cautioned, however, that "[n]ot every denial of a motion for continuance to obtain witnesses violates the accused's right to compulsory process." 667 F.2d at 1369-70. For example, an accused's right to compulsory process must give way to the witness' Fifth Amendment privilege not to give testimony that would tend to incriminate him. See United States v. Goodwin, 625 F.2d 693, 700 (5th Cir.1980); United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); see also United States v. Turkish, 623 F.2d 769, 774 (2d Cir.1980),cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978). This conflict between the Fifth and Sixth Amendments was not presented in Dickerson, where the potential alibi witnesses were not codefendants nor would their testimony have incriminated them.

The cases often present the situation where one of several defendants seeks severance so that he may obtain exculpatory testimony from his codefendant. To assure economy of judicial resources, the movant is required to make a substantial showing before being entitled to severance. "To qualify for a severance in order to obtain the testimony of a codefendant, a criminal defendant must show: '(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed.' " United States v. Ruppel, 666 F.2d 261, 268 (5th Cir.) (quoting United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980)), cert. denied, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982).

Given such a showing, the court should (1) examine the significance of the testimony in relation to the defendant's theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion.

Butler, 611 F.2d at 1071 (citations omitted). See 1 C. Wright, Federal Practice and Procedure Sec. 225 at 831-40 (2d ed. 1982).

This case does not present a severance issue, as Khan's motion for severance became moot when his codefendants agreed to plead guilty. We think, however, that the same factors quoted above may be applied to determine whether the district court's denial of Khan's motion for recess or a continuance deprived Khan of his right to compulsory process or otherwise constituted an abuse of discretion.

Khan satisfied the requirement that he indicate the substance of the testimony that Ali would give. When asked whether the government had any Brady material, the prosecuting attorney replied that Ali had said that Khan "had nothing to do with it." In light of the evidence linking Ali and Khan, however, any exculpatory testimony given by Ali would have been subject to damaging cross-examination, reducing the exculpatory effect of Ali's testimony. See Byrd v. Wainwright, 428 F.2d 1017, 1020 (5th Cir.1970).

Khan sought Ali's testimony to corroborate Khan's defense that he was in Texas merely to initiate legitimate business deals and had no knowledge of any scheme to sell heroin. The jury, however, heard substantially similar testimony by Jim Wilburn, a private investigator. Wilburn stated that Riaz had said that Khan was not involved in the heroin scheme and that he had been "set up" by the government's informant. ²

Assuming that Ali's testimony would have had an exculpatory effect, we find that Khan failed to demonstrate that Ali would testify for Khan if the district court had granted the motion for a continuance. See Ruppel, 666 F.2d at 268-69; United States v. Grapp, 653 F.2d 189, 192-93 (5th Cir.1981); cf. United States v. Martinez, 486 F.2d 15 (5th Cir.1973).

Khan called Ali to the witness stand in the absence of the jury, and Ali refused to answer every question asked of him, pleading his Fifth Amendment right not to incriminate himself. Khan's counsel asked Ali, "If you are able to answer these questions without the fear of giving evidence against yourself, would you be willing to testify on behalf of Agha Kaleem Ullah Khan?" Ali replied, "I refuse that question, too, sir."

Khan contends that only a minor delay in Khan's trial would have occurred if the district court had called a recess long enough to accept Ali's guilty plea on the possession count. Once the court had taken Ali's plea, Khan argues, Ali's Fifth Amendment privilege as to the heroin transaction would have dissolved and Khan would then have been able to compel Ali's testimony.

We confronted an argument and fact situation similar to Khan's in United States v. Gloria, 494 F.2d 477 (5th Cir.), cert. denied, 419 U.S. 995, 95 S.Ct. 306, 42 L.Ed.2d 267 (1974). Gloria, Frey, and Mercado were charged with conspiracy and possession of marijuana with intent to distribute. Mercado and Frey were scheduled to plead guilty to the conspiracy count on the day of Gloria's trial. Gloria planned to use Frey as a witness. A death in Frey's family, however, delayed the arraignment for two days. Gloria then moved for a continuance for virtually the same reasons that Khan urged below.

The Gloria court found that the district court had not abused its discretion by denying Gloria's motion for a...