U.S. v. Nersesian

Decision Date29 June 1987
Docket Number601,434,605,606,603,435,602,436,Nos. 600,437 and 607,604,s. 600
Citation824 F.2d 1294
Parties23 Fed. R. Evid. Serv. 487 UNITED STATES of America, Appellee, v. Murad NERSESIAN, a/k/a "Mickey Coco," a/k/a "Mike," Elias Abdouch, a/k/a "Abu Tony," Hassan Abdul Kader Maktabi, Peter Pazienza, Abdallah Georges Machaalani, a/k/a "David," a/k/a "Davey," Hani Fraih, Antwan Abdouch, a/k/a "Tony," Ayman S. Rabadi, a/k/a "Mike," Nedam Annabi, Dennis Meade, Maysoun Annabi, and Sami Annabi, Defendants-Appellants. ; Dockets 86-1211, 86-1215, 86-1216, 86-1217, 86-1218, 86-1221, 86-1233, 86-1234, 86- 1240, 86-1251, 86-1285 and 86-1287.
CourtU.S. Court of Appeals — Second Circuit

Leonard J. Levenson, New York City, for defendant-appellant Elias abdouch.

James W. Ryan, New York City, for defendant-appellant Nedam Annabi.

George R. Mayer, Bronxville, N.Y., for defendant-appellant Murad Nersesian.

Thomas H. Nooter, New York City (Freeman, Nooter & Ginsberg, New York City, of counsel), for defendant-appellant Georges Machaalani.

Joseph P. Carrozza, Yonkers, N.Y., for defendant-appellant Peter Pazienza.

Stephen Goldenberg, New York City, for defendant-appellant Hani Fraih.

Lorin Duckman, New York City, for defendant-appellant Dennis Meade.

John P. Deveney, New York City (Kellner, Chehebar & Deveney, New York City, of counsel), for defendant-appellant Hassan Abdul Kader Maktabi.

Ramsey Clark, New York City (Lawrence W. Schilling, Weldon Brewer, New York City, of counsel), for defendant-appellant Sami Annabi.

Lawrence Farkash, New York City, for defendant-appellant Ayman S. Rabadi.

Bobbi C. Steinheim, New York City, for defendant-appellant Maysoun Annabi.

Gerald J. McMahon, New York City, for defendant-appellant Antwan Abdouch.

John M. McEnany, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Robert L. Folks and Kenneth Roth, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE, Circuit judges.

PIERCE, Circuit Judge:

This appeal presents numerous issues--some susceptible of summary disposition, others more complex--raised by defendants, who, together with others, were charged with and convicted of participating in a large-scale conspiracy to import heroin from the Middle East and to distribute it in the United States. Some issues apply to appellants as a group, others apply only to individual appellants. We set forth so much of the factual background as is necessary for an understanding of this appeal.

BACKGROUND

Appellants Murad Nersesian, Elias Abdouch, Hassan Abdul Kader Maktabi, Peter Pazienza, Abdallah Georges Machaalani, Hani Fraih, Antwan Abdouch, Ayman S. Rabadi, Nedam Annabi, Dennis Meade, Maysoun Annabi, and Sami Annabi appeal their judgments of conviction in the United States District Court for the Southern District of New York (Sprizzo, Judge ), entered after a jury trial which lasted more than five months. On March 15, 1985, the government filed an indictment charging a total of thirty-six defendants with violations of narcotics laws and related offenses in twenty-eight counts. The charges against five defendants were severed, and some of these defendants were tried separately from the appealing defendants. Some defendants were not tried because they were never apprehended. Charges against others were not prosecuted either because the charges were dismissed or because defendants negotiated pleas of guilty and entered into cooperation agreements with the government. This appeal addresses twenty-two counts of the indictment which related to sixteen defendants, twelve of whom are the appellants presently before us. 1

Trial began on September 12, 1985 and concluded on February 19, 1986, when the jury returned its final verdict. The following are the dispositions of the various charges against appellants. All appellants on this appeal were convicted of conspiracy to distribute heroin, in violation of 21 U.S.C. Secs. 846 and 841. All appellants were also convicted of conspiracy to import heroin, in violation of 21 U.S.C. Secs. 963, 952, 955, and 960, with the exception of Sami Annabi, who was not charged, and Nedam Annabi, against whom the charge was dismissed. Sami Annabi was convicted of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. Sami Annabi, Nedam Annabi, and Murad Nersesian were found guilty of substantive narcotics offenses in violation of 21 U.S.C. Secs. 812 and 841--Dennis Meade was acquitted. Sami Annabi was convicted on two counts of using a telephone to facilitate narcotics offenses, in violation of 21 U.S.C. Sec. 843(b)--he and Murad Nersesian were found not guilty on two counts. Sami Annabi was convicted of one count of illegal receipt of a firearm, in violation of 18 U.S.C. Sec. 922(h). Two counts charging Sami Annabi and Murad Nersesian with carrying a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924, were dismissed. Hassan Abdul Kader Maktabi was convicted of conspiracy to defraud the United States and conspiracy to conceal material facts by causing a bank not to file currency transaction reports, in violation of 18 U.S.C. Sec. 371. One count charging Maktabi with unlawful transportation of monetary instruments in violation of 31 U.S.C. Sec. 5322(a) was dismissed. The charges for which each defendant was indicted, the dispositions of those charges, and the sentences imposed are also set forth in an appendix to this opinion.

The indictment charged and the evidence at trial showed the existence of a large-scale, loosely organized conspiracy to import heroin from the Middle East and a conspiracy to distribute it in the United States, particularly in the New York metropolitan area. Thus, while actually two separate conspiracies were charged and are therefore the subject of our concern, because both covered the same time frame and involved mainly the same defendants, for convenience we refer to both of these conspiracies principally as a single conspiracy to import and distribute heroin, except where the context makes clear otherwise. While we do not recount in detail the evidence adduced against each appellant, we consider it necessary to provide a broad overview of the conspiracy and a brief description of the role each appellant played in the scheme as demonstrated by the evidence.

The government's evidence consisted primarily of several accomplice witnesses who testified for the government, numerous wiretap conversations, and reports of physical surveillance by several government agents. In addition, the government introduced expert testimony about the meaning of certain wiretap conversations, as well as other documentary evidence. Four of the defendants testified in their own defense.

The evidence revealed that the conspiracy began around mid-1982 when Sami Annabi approached Basil Cannata, an accomplice who testified for the government at trial, and Anthony P. Restaino, a post-verdict fugitive, for assistance in financing a trip to the Middle East to pick up heroin. Further, with the assistance of Cannata and Restaino, Sami Annabi was able to arrange for the importation of several kilograms of heroin. Restaino, however, was later dropped from the ring, after the others concluded that he had taken advantage of them by offering too low a price for some of this heroin.

On November 23, 1982, Sami Annabi and his brother, Nedam Annabi, were arrested at John F. Kennedy International Airport while attempting to smuggle into the United States in excess of four kilograms of heroin with an average purity of eighty percent. At that time, both Sami and Nedam Annabi were charged in the Eastern District of New York with conspiracy to import heroin into the United States, in violation of 21 U.S.C. Sec. 963, with the substantive offense of importing heroin into the United States, in violation of 21 U.S.C. Sec. 952(a), and with possession of heroin with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Pursuant to an agreement with the United States Attorney's Office for the Eastern District of New York, both pleaded guilty on February 4, 1983 to the importation count, and the remaining counts were dismissed at the time of sentencing. As a result of his agreement to cooperate with the Drug Enforcement Administration ("DEA") and the United States Attorney's Office for the Southern District of New York in assisting them in connection with other drug cases and his subsequent testimony for the government in three Southern District cases in 1984, Sami Annabi's original sentence of incarceration, like that of his brother, Nedam Annabi, was eventually reduced to probation.

Nevertheless, despite his arrest and agreement to cooperate with the DEA, Sami Annabi continued his heroin trafficking even while purportedly cooperating with the government. At trial, it was the government's theory that Sami Annabi and Cannata remained at the center of the drug importation operation but called upon other members of the conspiracy to take a more active role in its functioning. What follows is a brief description of the roles played by the other co-conspirators, according to the government's theory of the case.

Three suppliers in Syria, Hassan Abdul Kader Maktabi, Abu Hamadah, and Sirop Siropian constituted the source for most of the heroin delivered to Sami Annabi. Abdallah Georges Machaalani, who lived in Boston and was also involved in the importation of heroin, served as an occasional source for Sami Annabi.

In carrying out his narcotics dealings, Sami Annabi was aided by various members of his family, namely, his wife, Maysoun Annabi, his brother, Nedam Annabi, and two of his brothers-in-law, Ayman S. Rabadi and Hani Fraih. Family members assisted in different ways. For instance, government witnesses testified, inter alia, that Maysoun Annabi traveled to Syria following Sami Annabi's 1982 arrest to...

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    ...the jury on the existence of the facts needed to satisfy the elements of the charged offense. See United States v. Nersesian , 824 F.2d 1294, 1308 (2d Cir. 1987) (“In the past, we have upheld the admission of expert testimony to explain the use of narcotics codes and jargon . . . We acknowl......
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