U.S. v. Kojayan

• Decision Date: 01 November 1993
• Docket Number: 91-50876,Nos. 91-50875,s. 91-50875
• Citation: 8 F.3d 1315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chake G. KOJAYAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hratch Meguerdity KALFAYAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1315

8 F.3d 1315

UNITED STATES of America, Plaintiff-Appellee, v. Chake G. KOJAYAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Hratch Meguerdity KALFAYAN, Defendant-Appellant.

Nos. 91-50875, 91-50876.

United States Court of Appeals Ninth Circuit.

Argued Nov. 5, 1992.

Submitted Dec. 7, 1992.

Opinion Aug. 4, 1993.

Amended Opinion Nov. 1, 1993.

Ronald J. Nessim, Bird, Marella, Boxer, Wolpert & Matz, Los Angeles, CA, for defendant-appellant Chake Kojayan.

Robert G. Berke and James L. Rosenberg, Los Angeles, CA, for defendant-appellant Hratch Kalfayan.

Lourdes G. Baird, U.S. Atty., Robert L. Brosio, Chief of the Crim. Div., and Jeffrey S. Sinek, Asst. U.S. Atty., Los Angeles, CA, for U.S. (original briefs).

Terree A. Bowers, U.S. Atty., Robert L. Brosio, Chief of the Crim. Div., Miriam A. Krinsky, Chief of Crim. Appeals, Jeffrey S. Sinek, Asst. U.S. Atty., and George S. Cardona, Asst. U.S. Atty. in the Appellate Section, Los Angeles, CA, for U.S. (supplemental brief).

Appeal from the United States District Court for the Central District of California.

Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.

KOZINSKI, Circuit Judge:

In many ways this is a run-of-the-mill case. A misdeed was committed, and the wrongdoers did their best to keep from being found out. When their actions were questioned, they denied any impropriety and pointed the finger at others. Eventually forced to own up, they did so only partially and grudgingly, "minimiz[ing their] involvement in the ... conduct and ... not fully accept[ing] responsibility." United States v. Yanez, 985 F.2d 371, 376 (7th Cir.1993).

A run-of-the-mill case in many ways, but with a twist.

I

Chake Kojayan, a middle-aged Lebanese woman, came to Los Angeles from Lebanon on June 13, 1991, with $100,000 worth of heroin sewn into a bag. There's no dispute about that, or about a lot of other things. She had been given the bag by an acquaintance of Hagop Kalfayan (codefendant Hratch Kalfayan's brother) and told to stay at the house of Kalfayan's mother while in Los Angeles. In the meantime, Krikor Nourian was arranging a sale of the heroin to people who turned out to be DEA agents. On June 26, Hratch Kalfayan drove Kojayan to the Airport Hilton Hotel, where they met Nourian and DEA Special Agent Alleva, who was posing as a buyer. After a conversation, part in English and part in Armenian--a language Agent Alleva didn't understand--Kalfayan gave the bag to Alleva. Kalfayan, Kojayan and Nourian were then arrested. Kalfayan and Kojayan were indicted for conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 846, and possession with intent to distribute, 21 U.S.C. § 841(a)(1). Nourian was whisked away by the government, never to be seen again by Kalfayan and Kojayan.

The dispute at trial was about knowledge. Kojayan admitted she was given the bag for safekeeping, but claimed she had no idea what was in it; it was Kalfayan who was in on the deal. Kalfayan claimed the opposite: He was just chauffeuring Kojayan to where she wanted to go; the seemingly incriminating things he said at the hotel were only his translations of Kojayan's statements. The government claimed both defendants knew what was going on. It went about proving this largely through Agent Alleva, who testified about what Nourian and to some extent Kalfayan told him just before the arrest. ¹

Quite obviously, Nourian was at the heart of this affair. He set up the sale; he knew the two defendants. More importantly, he spoke both English and Armenian, and so could testify directly about what Kalfayan and Kojayan said in Armenian. Agent Alleva, on the other hand, spoke only English, and so could only testify about what Nourian told him was said. Nourian might also have been able to clarify who, if either, of the two defendants was telling the truth: Was it Kojayan (they told me to go for a ride and bring the bag) or Kalfayan (my mother told me to drive her friend to a meeting)? But Nourian didn't appear at trial. Instead, the government introduced his statements (both taped and untaped) under Fed.R.Evid. 801(d)(2)(E), as the statements of a co-conspirator.

Long before the start of the trial, the defendants had tried hard--citing, among other things, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)--to learn Nourian's whereabouts and whether he'd agreed to cooperate with the government. CR 18 at 9, 14. The government responded brusquely: "There is no discovery obligation for the government to inform defendant whether or not her unindicted co-conspirator is cooperating with the government subsequent to his arrest in this case. The government has complied with its discovery obligations; it is not required to be defendant's investigator." CR 23 at 3-4. The district court ultimately ordered the government to give defendants the name and telephone number of Nourian's lawyer. This proved of little help, however, because Nourian's counsel told the defense lawyers that Nourian, if called by the defense, would assert his Fifth Amendment privilege against self-incrimination. Nourian's lawyer refused to say whether Nourian had an agreement with the government.

Nevertheless, the defense attorneys--experienced criminal lawyers--had a strong hunch Nourian must have cut a deal pursuant to which he promised to testify if the government called him. At trial, they decided to make hay out of the government's failure to do so: They argued that, because the prosecution (and only the prosecution) could have called Nourian to the stand but didn't, the jurors should infer that his testimony would have undercut the government's case. ² This wouldn't have been a remarkably strong inference, but it would have been a permissible one: When the government can call a key percipient witness, but relies instead on out-of-court statements and on testimony by an agent who didn't understand half the critical conversation, a jury could conclude that the witness's "testimony, if produced, would [have been] unfavorable" to the prosecution. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893); see also United States v. Anders, 602 F.2d 823, 825 (8th Cir.1979).

Unfortunately for the defendants, they had no proof that Nourian was actually available to the government. Thwarted in their attempt to obtain this information under Brady, defense counsel were in the unenviable position of having to raise the point without any support in the record. Though they urged the jury to infer the existence of a deal from the circumstances, without any direct evidence of an agreement, their claims naturally seemed weak. As the Assistant United States Attorney forcefully argued to the jury, the defense's contentions appeared to be

a classic example of asking the jury to speculate.... The government can't force someone to talk. They have to agree to talk after they've been arrested.

Well, you can figure out defendant Nourian was arrested. He has Fifth Amendment rights. He has the right to remain silent. The government can't force anyone to talk. It is against their Fifth Amendment rights. Don't be misled that the government could have called Nourian.

RT 10/4/91 at 311 (emphasis added). If the AUSA was telling the truth, the jury would have had no basis for inferring what the defense wanted them to infer. And apparently it didn't: After two days of deliberation, it convicted both defendants on all counts.

II

The AUSA, however, was not telling the truth. Defense counsel had guessed right--Nourian had entered into a cooperation agreement with the government and had promised to "truthfully testify ... at any trial or other court proceeding with respect to any matters about which [the government] may request his testimony." Cooperation Agreement at 2. ³ Even if Nourian still technically retained the right to refuse to testify, he would have paid a steep price for so doing: He would have lost all benefits from the plea bargain; he could have been prosecuted for all his crimes; he couldn't claim the statute of limitations for any prosecution; all statements he already made pursuant to the agreement could be used against him. Plea Agreement at 2-3.

The government thus had every reason to believe Nourian would sing like a nightingale whenever it whistled the tune. This was the whole point of the cooperation agreement, three single-spaced pages designed primarily to hold Nourian to his word. In this context, telling the jury that "Nourian ... has the right to remain silent," and that "the government can't force someone to talk" was highly misleading. Adding "[d]on't be misled that the government could have called Nourian" was simply false: The government could have called Nourian, and could have done so with a very great deal of confidence that he would testify.

Anyone can make a mistake. Words uttered spontaneously sometimes come out wrong; the exigencies of trial may make it hard to consider all the implications of a particular assertion. The mere fact of a misstatement to the jury therefore isn't the end of the matter. In determining the proper remedy, we must consider the government's willfulness in committing the misconduct and its willingness to own up to it. See pp. 1323-24 infra; United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.1992). We also must consider whether the misstatement likely affected the verdict.

A. The AUSA

The AUSA's misstatement came during his rebuttal argument to the jury, in response to defense counsel's argument that "Nourian was arrested. I submit to you that the government could have called him as a witness." RT 10/4/91 at 299-300.

Though it isn't clear how much time passed between defense counsel's challenge and the prosecutor's response, the prosecutor had at least a few minutes to ponder what to say. Moreover, the issue had come up earlier, when defense counsel requested an absent witness instruction. The government's lawyer...