U.S. v. Malekzadeh, s. 86-3614

• Decision Date: 28 September 1988
• Docket Number: Nos. 86-3614,87-3315,s. 86-3614
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irej Alex MALEKZADEH, Mary Ann Evans, Thomas Hayward Webb, Defendants- Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Reeve SHAYANFAR, a/k/a Farivar Shayanfar, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1492

855 F.2d 1492

UNITED STATES of America, Plaintiff-Appellee, v. Irej Alex MALEKZADEH, Mary Ann Evans, Thomas Hayward Webb,

Defendants- Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Reeve SHAYANFAR, a/k/a Farivar Shayanfar, Defendant-Appellant.

Nos. 86-3614, 87-3315.

United States Court of Appeals, Eleventh Circuit.

Sept. 28, 1988.

Stephen N. Bernstein, Gainesville, Fla. (Court-appointed), for malekzadeh.

V. Hulslander, O'Connell and Hulslander, Gainesville, Fla., for Evans.

William B. Moffitt, Moffitt & Jones, Alexandria, Va., for Webb.

Huntley Johnson, Lois Agee, Gainesville, Fla., for Shayanfar.

Michael Simpson, George W. Blow, III, Asst. U.S. Attys., Talahassee, Fla., for U.S.

Appeals from the United States District Court for the Northern District of Florida.

Before ANDERSON and EDMONDSON, Circuit Judges, and ATKINS ^*, Senior District Judge.

ATKINS, Senior District Judge:

Irej Alex Malekzadeh, Thomas Hayward Webb, Mary Ann Evans, and Reeve Shayanfar appeal from convictions on various charges of conspiracy to distribute cocaine and heroin, and possession with intent to distribute heroin and cocaine. Finding no error, we AFFIRM.

The appellants Webb, Evans, and Malekazadeh were indicted and tried together. On July 29, 1986, the jury returned guilty verdicts against Webb on all eighteen counts, against Evans on all three counts charged, and against Malekzadeh on fifteen of the sixteen counts with which he was charged. The appellant Shayanfar was indicted separately. His case was initially consolidated with that of Webb, Evans, and Malekzadeh, but was later severed after opening statements. The government filed a superseding indictment and Shayanfar was tried and convicted on three counts that included conspiracy to possess with intent to distribute heroin and using the telephone system to facilitate a felony.

Malekzadeh, Webb, and Evans appeal on numerous grounds that include the trial court's denial of motions to suppress evidence obtained through wire taps, motions for mistrial, denial of Malekzadeh's motion to sever, and denial of Evans' motion for judgment of acquittal. The appellants also assert that the trial court erred when it allowed a witness to use notes during her testimony to refresh her recollection. Evans independently contends that she was penalized for exercising her right to remain silent. The appellant Shayanfar joins in several of the arguments asserted by the other appellants and independently asserts that his second trial violated double jeopardy.

Factual Background

An investigation of a heroin distribution ring purportedly operating in the Gainesville, Florida area led federal and state agents to the appellants. During the course of the investigation, one of the agents sought an order that would authorize retrieval and recording of the telephone numbers dialed to and from a home occupied jointly by the appellants Webb and Evans. In January of 1986, agents petitioned the court for and were granted an authorization for wire and oral communication intercepts on the Webb/Evans telephone and in February of 1986, made a similar request for the home telephone of the appellant Malekzadeh. The Webb/Evans telephone was monitored, with authorized extensions, from January 13, 1986, through March 12, 1986; Malekzadeh's phone was monitored from February 12 until March 12, 1986. Agents gathered over four hundred conversations from the Webb/Evans and Malekzadeh wiretaps and conducted dozens of surveillances based upon intercepted conversations. The information obtained from the wiretaps and the actual conversations formed the bulk of the government's evidence presented at trial.

In March of 1986, law enforcement officers surveilled the appellant Malekzadeh traveling to San Francisco where he met with two individuals, one of whom was later identified as the appellant Reeve Shayanfar. Malekzadeh arrived in San Francisco in the evening of the first day, remained the following day, and departed early on the third day. Upon arrival in Florida, he was met at the airport by his wife. Approximately twenty minutes after reaching home, Malekzadeh telephoned Webb and arranged a meeting. Malekzadeh left home in his wife's car, the same one in which she had met him at the airport. He met Webb and Evans in an undeveloped subdivision located about one and one half miles from his home, parking driver's door to driver's door. After observing the meeting, the officers arrested the three, recovering $1,275 in cash from the front seat of Webb's car; among the trash on the floor were pieces of paper cut in a fashion typically used to package heroin. Vacuuming the floorboards yielded a substance that later tested positive for heroin. Because Webb had ignored repeated demands to raise his hands and it appeared to the officers that he was doing something under the steering wheel, it was the officers' opinion that Webb tore open a package of heroin that he had received from Malekzadeh, sprinkling its contents over the floorboard of the car. Both Webb and Evans exhibited signs of severe heroin withdrawal after their arrest. No drugs or money were recovered from the car driven by Malekzadeh.

Malekzadeh was accompanied to his home where he was detained with his wife until the arresting officers could obtain a search warrant, a span of about two hours. After searching the house and Malekzadeh's own car which was parked in the driveway, officers seized a telephone with a wiretap, $87,000 in cash, 114 grams of cocaine, 114 grams of heroin, and two Mercedes Benz automobiles. Malekzadeh's fingerprints were taken from the packages containing the heroin. On the same night, a search of the Webb/Evans residence pursuant to a warrant revealed scales, cutting agents, syringes, and heroin wrappers. Drug evidence had earlier been discovered in their trash. A codefendant, Susan Eichner, testified that she had been consistently purchasing heroin from Webb and Evans for over a year.

On April 3, 1986, Shayanfar was arrested in San Francisco and charged in a separate indictment. He was initially represented by an Assistant Federal Public Defender, Susan Seahorn who filed numerous motions to continue the trial alleging among other things "defense counsel's lack of experience in cases of this nature," and that "the complexity renders Shayanfar's counsel unable to adequately and competently represent her client at this time." Ms. Seahorn also argued to the court during a hearing: "I don't know what I'm doing at this moment. I am learning. I am learning very quickly. But it takes time, and everyone in this case has had a lot more time to prepare." The court heard motions from March 28, 1986, through June 5. Shayanfar's counsel contributed only minimally to the hearings and often did not return to the courtroom after a recess. Despite affidavits to the contrary, Ms. Seahorn spent most of the time between the hearings and the trial out of town.

Jury selection began on June 30. Ms. Seahorn repeated to the jury on more than one occasion: "I'm trying to do a good job, so just bear with me," and identified herself as a public defender on at least two occasions. When the court attempted to intervene in counsel's repetitious questioning of a potential juror, Ms. Seahorn remarked to the judge, "Well, if you feel like you can do it better...." Ms. Seahorn was threatened with contempt but completed the voir dire without further incident and the jury was empaneled and sworn that evening. On the following day, July 1, the trial began.

In his opening statement to the jury, counsel for the government stated that, although the indictments charged two separate conspiracies, the evidence would show that, in fact, they had arisen out of the same conduct. After his opening statement, Malekzadeh's counsel moved for a mistrial, a motion joined by Shayanfar. After lunch, the court met with Shayanfar, Ms. Seahorn, and Mike Simpson, counsel for the government. The judge asked if Shayanfar was satisfied with the representation that he was receiving and told him that he had a choice of proceeding with the trial represented by Ms. Seahorn, proceeding pro se, or being severed and being retried with new counsel. An independent attorney was appointed to provide him with neutral advice concerning his choices. When Shayanfar refused to make a choice, the judge informed him that the trial would continue. At this point, Ms. Seahorn moved to withdraw claiming an invasion of the attorney/client privilege and Shayanfar was now faced with proceeding pro se or choosing to sever. He chose the latter and the jury was instructed to disregard any reference that had been made to the defendant Shayanfar. The government filed a superseding indictment and Shayanfar was tried separately and convicted.

I. ELECTRONIC SURVEILLANCE

The appellant Malekzadeh challenges the denial of his motion to suppress the fruits of the court ordered electronic surveillance on two grounds. Only the appellant Shayanfar joins in these arguments which assert that the wiretaps failed to comply with the court ordered minimization requirement, and that the application for authorization failed to disclose a prior wiretap. The appellant Webb, with whom the other appellants join, alleges that the 1986 wiretap application was based in part on information obtained from an allegedly illegal search of his home. Webb posits that the Fourth Amendment requires suppression of the information and thus the 1986 application represents "fruit of the poisonous tree."

Review of the trial court's denial of the motion contained mixed questions of law and fact. The latter are accorded the clearly erroneous standard while questions of law are subject to plenary review. Adams v. Balkcom, 688 F.2d 734 (11th Cir.1983).

A. Failure to Minimize

The officers who conducted the wiretap of Malekzadeh's residence intercepted numerous telephone calls between the appellant and his wife. Malekzadeh argues...