U.S. v. Khan

• Decision Date: 25 March 1986
• Docket Number: D,No. 374,374
• Citation: 787 F.2d 28
• Parties: 20 Fed. R. Evid. Serv. 15 UNITED STATES of America, Appellee, v. Jan Dil KHAN, Defendant-Appellant. ocket 85-1230.
• Court: U.S. Court of Appeals — Second Circuit

Page 28

787 F.2d 28

20 Fed. R. Evid. Serv. 15

UNITED STATES of America, Appellee, v. Jan Dil KHAN, Defendant-Appellant.

No. 374, Docket 85-1230.

United States Court of Appeals, Second Circuit.

Argued Nov. 4, 1985.

Decided March 25, 1986.

Thomas M. O'Brien, New York City (The Legal Aid Soc., Federal Defender Services Unit, New York City, of counsel), for appellant.

Stephen F. Markstein, New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Celia Goldwag Barynholtz, Asst. U.S. Atty. for the S.D. of N.Y., of counsel), for appellee.

Before FRIENDLY, ^* MANSFIELD, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

This case, which arises out of a scheme to smuggle heroin into our country, presents only one question deserving more than summary discussion: Should the district court have dismissed certain counts charged against the defendant in the superseding indictment on the ground that they were added only as a result of "prosecutorial vindictiveness" in response to defendant's rejection of plea discussions and his request for a jury trial after trial on the original indictment resulted in a hung jury? Finding no reason to invoke a presumption of vindictiveness, no evidence of actual vindictiveness, and no merit to defendant's other claims, we affirm the convictions.

BACKGROUND

In January 1984 the defendant, Jan Dil Khan, asked an acquaintance, Abdul Qadir Mazari, for the names of individuals in the United States or Europe who might want to buy heroin, since Khan could arrange delivery. At the time, both men lived in Pakistan. After falsely telling Khan that he had buyers in the west, Mazari informed a United States Drug Enforcement Agency (DEA) agent in Pakistan that Khan wanted an outlet for heroin in the United States.

Working in cooperation with DEA agents, Mazari, on two separate occasions, arranged for Khan's United States associates to sell to an undercover DEA agent heroin that Khan had previously secreted Khan, Mazari, and the undercover DEA agent, posing as a buyer, met in New York on April 9, 1984, when in response to the agent's query, Khan stated that he could supply the agent with 200 kilograms of top grade heroin. Two days later, when the three met again, Khan said that he expected two heroin couriers to arrive from Pakistan over the weekend and that he would have samples available the following week. Shortly thereafter, however, Khan learned that the couriers had been arrested--one in Pakistan and one in England. When Khan, Mazari, and the agent met for the third time, on April 15, Khan told the agent the expected couriers had been arrested. He requested the agent's patience and assured him that a sample would be forthcoming.

in New Jersey. Following these two sales, Khan and Mazari traveled to the United States in order to straighten out certain misunderstandings that had arisen between Khan and his associates here, and to meet with Mazari's buyers.

On April 23 Khan told Mazari that he intended to return to Pakistan, but wanted Mazari to remain in New York and receive shipments of heroin to pass on to the buyer. Mazari agreed. Two days later the three met for a final time. Khan told the agent that he would try to get him "first quality" heroin in "quantities of 15, 20 and even 25" kilos once they got the "business started". At the end of the meeting, Khan was arrested.

A four-count indictment charged Khan and an associate with one count of conspiracy to distribute heroin and three counts of distributing heroin. The associate pled guilty to two of the counts. Khan's trial ended on August 28, 1984, in a mistrial caused by a hung jury.

After the mistrial, the Assistant United States Attorney (AUSA) then in charge of the prosecution discussed with Khan's attorney the possibility of Khan's pleading guilty to a violation of 21 U.S.C. Sec. 843(b) (using a telephone in connection with a drug transaction). Khan refused, however, and chose instead to have a retrial. Another AUSA took charge of the case, and he, too, discussed the possibility of a guilty plea, specifically noting that a superseding indictment might be returned prior to retrial; but Khan again refused to plead guilty.

In the latter half of October, one of Khan's associates agreed to cooperate more extensively with the government and, according to the government, provided new evidence of other crimes properly chargeable against Khan. Khan contends that this "new" evidence had been available to the government before the first trial.

On October 26, 1984, a grand jury returned the instant 16-count superseding indictment charging Khan and several other defendants with conspiracy to import heroin (count 1), conspiracy to possess and distribute heroin (count 2), importation of heroin (count 3), various distributions of heroin (counts 4, 5, 7, 9, 11, 12, and 13), and attempted importation of heroin (count 16), together with five other violations (counts 6, 8, 10, 14, and 15) which were not submitted to the jury and are not relevant to this opinion. Only then did Khan express an interest in pleading to a lesser charge, but the AUSA informed defense counsel that such a plea was no longer acceptable.

Khan's retrial commenced on February 4, 1985, and ended on February 13, with guilty verdicts against Khan on each of the submitted counts. The district court sentenced Khan to four years' imprisonment, followed by five years of probation and a five-year special parole term.

On appeal Khan contends that: (1) the district court should have dismissed counts 1, 3, 4, 5, 7, 9, and 16 of the superseding indictment because of "prosecutorial vindictiveness"; (2) the evidence on those seven counts was insufficient to support the convictions; and, (3) the district court erred by permitting a DEA agent to testify as an expert about heroin trafficking in Pakistan. For the reasons below, we affirm.

DISCUSSION

1. Prosecutorial Vindictiveness.

Appellant first argues that the district court should have dismissed the counts In a series of cases beginning with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court has recognized the "basic--and itself uncontroversial--principle", United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), that to punish "a person because he has done what the law plainly allows him to do is a due process violation", Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). In Pearce, which involved an increased sentence on a second conviction, without explanation or justification by the sentencing judge, after defendant had successfully challenged his first conviction on appeal, the Court held that

added in the superseding indictment on the ground that an unrebutted presumption of prosecutorial vindictiveness arose when these counts were added following appellant's rejection of a plea to a lesser offense in lieu of a second trial and the assertion of his right to a jury trial.

Due process of law * * * requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725, 89 S.Ct. at 2080.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court addressed the problem of vindictiveness by a prosecutor. There, a defendant, following his conviction on a misdemeanor charge in state district court, exercised his right under state law to a de novo trial in state superior court. Before the new trial began, however, the prosecutor obtained a felony indictment against the defendant based on the same conduct that supported the challenged misdemeanor conviction.

Reviewing defendant's conviction on the felony indictment, the Supreme Court reasoned that "the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness' ". Id. at 27, 94 S.Ct. at 2102. Noting that a prosecutor under North Carolina's two-tiered system had a considerable stake in discouraging convicted misdemeanants from choosing a de novo trial, namely, minimizing the expenditure of prosecutorial resources necessary for final conviction, the Court feared that the state might attempt to insure that only the most hardy defendants would exercise that right by "upping the ante" through a felony indictment. Id. at 28, 94 S.Ct. at 2102. Reasoning that a defendant was entitled to pursue his right to a de novo trial without apprehension of a retaliatory response, the Court held that the felony indictment violated due process.

Later, in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), and United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Court reviewed claims of prosecutorial vindictiveness arising from defendants' assertion of protected rights in a pretrial context. In both cases, prosecutors had indicted defendants on more serious charges after they had declined to plea-bargain.

In upholding the defendant's conviction in Bordenkircher, the Court explained that the due process violations in cases such as Pearce and Blackledge "lay not in the possibility that a defendant might be deterred from the exercise of a legal right [citations omitted] but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction." Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 667. Reasoning that in the "give-and-take" of plea bargaining there is no element of retaliation so long as a defendant remains free to...