U.S. v. Mourad, s. 445-447
| Decision Date | 24 February 1984 |
| Docket Number | Nos. 445-447,D,s. 445-447 |
| Citation | 729 F.2d 195 |
| Parties | 15 Fed. R. Evid. Serv. 234 UNITED STATES of America, Appellee, v. Tamer Trad MOURAD, Joseph Hargrave, and Adnan Yacteen, Defendants-Appellants. ockets 83-1194, 83-1197 and 83-1198. |
| Court | U.S. Court of Appeals — Second Circuit |
Carl M. Bornstein, New York City (Jacob Laufer, and Bornstein & Laufer, New York City, on the brief), for defendant-appellant Mourad.
Irving Anolik, New York City, for defendant-appellant Hargrave.
William P. O'Neill, Springfield, Mass. (Matroni, Dimauro, Fitzgerald & Sweeney, Springfield, Mass., on the brief), for defendant-appellant Yacteen.
Paul Schectman, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Janette P. Patterson, Andrew J. Lavender and Barry A. Bohrer, Asst. U.S. Attys., New York City, on the brief), for appellee.
Before TIMBERS, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
Appellants Mourad, Hargrave and Yacteen appeal from judgments entered May 18, 1983 in the Southern District of New York, Thomas P. Griesa, District Judge, after an eight week jury trial, convicting them of violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the Act), and related offenses.
Specifically, appellants were convicted of the following offenses: all appellants of conspiring to import heroin, 21 U.S.C. Sec. 963 (1982), and conspiring to distribute heroin, 21 U.S.C. Sec. 846 (1982); appellant Mourad of organizing a continuing criminal enterprise, 21 U.S.C. Sec. 848 (1982); all appellants of various substantive violations of the narcotics laws for importing and distributing heroin, 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A), 952, 960 (1982); appellants Mourad and Yacteen of interstate travel to facilitate the distribution of heroin, 18 U.S.C. Sec. 1952 (1982); and all appellants of using interstate facilities to promote the distribution of heroin, 18 U.S.C. Sec. 1952 (1982).
For the reasons stated below, we affirm the convictions of all appellants on all counts; and we remand the case of Mourad to the district court solely for the purpose of reconsideration of his sentence in accordance with our opinion herein.
During the course of the eight week trial a great deal of evidence was adduced which resulted from a five month investigation by the Drug Enforcement Administration (DEA). We shall summarize only so much of the evidence as we believe necessary to an understanding of our rulings on the legal issues raised on appeal. There was evidence from which the jury could have found as follows.
The evidence included the testimony of four accomplice witnesses, evidence of physical surveillances, evidence of the fruit of various searches, and proof of unexplained wealth. Such evidence permitted the jury to find that appellants were high ranking figures in an international narcotics smuggling operation that transported a continuous flow of large quantities of heroin from Lebanon to the United States over a four year period.
Mourad, a Lebanese national, directed the movement of heroin into the United States from Lebanon. Yacteen, who was Mourad's chief assistant, helped transport and safeguard the enterprise's heroin. Hargrave supervised the distribution network in the New York area.
The smuggling operation began in 1979 when Mourad and Hargrave travelled to Lebanon to meet with a heroin refiner. On that trip they were introduced to a former Lebanese customs official, Mohamed Berro, who agreed to help them covertly transport heroin to the United States. Berro agreed with Mourad and Hargrave that a dummy corporation should be set up, with offices in New York City and Beirut, to act as a cover for the frequent traveling which would be necessary. Nassif Berro, the son of this former customs official, was one of the government's chief witnesses at trial. He was present at the initial negotiations and later picked up the first shipment of heroin for delivery to his father, who arranged for shipment to Mourad and Hargrave in New York. An airline pilot acted as courier and delivered the heroin to Mourad.
Several weeks after delivery of the first shipment, a second purchase of heroin was Hargrave and Mourad again travelled to Lebanon in the spring of 1980. They contacted Mourad's longtime friend, Mahmoud Yaghi, who later testified for the government. He arranged for a villa for Hargrave, Mourad and their friends. He also introduced Hargrave and Mourad to a Lebanese banker, to whom Hargrave gave $200,000 while Yaghi watched. Yaghi introduced them to a new heroin supplier, Hargrave having expressed dissatisfaction with the quality of the heroin supplied earlier. Hargrave and Mourad engaged Yaghi to transport some of the new heroin to New York. While in New York, Yaghi witnessed two heroin transactions involving Hargrave and Mourad.
made from the same refiner. Again, Berro, Sr. arranged to have a courier deliver the heroin to a relative of Mourad in Los Angeles. Berro, Sr. was paid about $90,000 for his help.
In April 1981, Mourad and Yacteen travelled to Lebanon. Again Yaghi was engaged to arrange for delivery of a new shipment of heroin. He and another courier delivered it personally. Both Yaghi and the courier later were arrested in New York by DEA agents.
In October 1981, another shipment was intercepted when another Lebanese courier was arrested while claiming his luggage in New York. This courier, Emil Ghazali, also later testified for the government.
Additional shipments from Lebanon to the United States took place in February, March and June of 1982. Berro's son was arrested in New York City while attempting to sell the June delivery to an undercover agent. Two days later, Hargrave was arrested on an indictment returned in the District of New Jersey for income tax evasion. At the time of his arrest he placed a telephone call to his wife in the presence of government agents. During this telephone conversation, he made incriminating statements in code. Later, while imprisoned in the same facility as Berro, Hargrave made a number of incriminating statements to Berro.
On November 7, 1982, DEA agents executed search warrants at the homes of Mourad and Yacteen in Agawam and East Long Meadow, Massachusetts. The search of Mourad's home resulted in the seizure of a pound of unrefined heroin; quantities and traces of mannitol, a heroin dilutant; glassine envelopes; hashish and marijuana; $26,000 in cash; and a narcotics ledger written in Arabic. The search of Yacteen's home resulted in the seizure of a false-bottomed suitcase containing traces of heroin; a triple beam scale; mini-scales; a heat sealer; glassine bags; hollow-point bullets; a .357 Magnum handgun; $10,000 in cash; and financial records concerning Yacteen's narcotics trafficking. The agents also seized the telephone books of Mourad and Yacteen which contained the telephone numbers of their co-conspirators.
Mourad and Yacteen subsequently were arrested and confined at the Franklin House of Detention in Massachusetts. There they made a number of incriminating statements to a fellow prisoner who later testified for the government.
On January 4, 1983, appellants Mourad, Hargrave and Yacteen were indicted, in the instant case, along with Jamil Hameiah, Ghassan Saleh, Nawal Yacteen and Nemr Hazime. Trial began on February 7, 1983 and was concluded on April 4, 1983. Mourad, Yacteen, and Hargrave were convicted of various charges set forth in the margin. 1
Saleh, Hazime, and Nawal Yacteen were acquitted. Hameiah remains a fugitive. On May 18, 1983, the court sentenced Mourad to a total of 45 years imprisonment and a $100,000 fine; Hargrave to a total of 45 years imprisonment and a $120,000 fine; 2 and Yacteen to 15 years imprisonment as a young adult offender pursuant to 18 U.S.C. Sec. 4216 (1982). From their judgments of conviction, appellants have taken the instant appeals
Of the various claims of error raised on appeal, we rule as follows on what we find to be the essential ones: (1) appellants were not denied a fair trial by alleged prosecutorial misconduct; (2) disappearance of a witness did not prejudice appellants; (3) the court's evidentiary rulings which are challenged were correct; and (4) since the narcotics conspiracy conviction of appellant Mourad merged with his continuing criminal enterprise conviction, his case is remanded solely for the purpose of reconsideration of his sentence.
We shall discuss seriatim our rulings stated above.
Appellants contend that their convictions should be reversed because of alleged prosecutorial misconduct. Their chief argument is that the defense was placed at a disadvantage because production of material required by 18 U.S.C. Sec. 3500 (1982) (the Jencks Act), Fed.R.Crim.P. 16, and Brady v. Maryland, 373 U.S. 83 (1963), was delayed. Appellants claim that they therefore were unable to use such material effectively.
In Brady, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87.
It is true that some material was not promptly turned over to counsel for appellants. 3 We believe, however, that there are at least two reasons why such prosecutorial conduct does not warrant reversal. First, production of the evidence was delayed, not suppressed. 4 Appellants had several possible remedies at various times of which they chose not to avail themselves, such as requesting a continuance, recalling the witness for further examination, or introducing rebuttal evidence. Second, there had been no showing that the delay resulted in any prejudice, or even that the evidence was material to the issue of guilt. The trial judge carefully scrutinized the possibility...
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