U.S. v. Sheikh

Decision Date03 September 1981
Docket NumberNo. 80-1666,80-1666
Citation654 F.2d 1057
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Houshang SHEIKH, Defendant-Appellant. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Steven H. Swander, Fort Worth, Tex., for defendant-appellant.

Paul Coggins, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant Sheikh appeals from his conviction, following trial by jury, on charges of (1) conspiracy to import heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 and § 963, and (2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We find the evidence insufficient to support the jury verdict of guilty on the conspiracy charge and, therefore, reverse the conviction on that charge. However, we affirm the conviction for possession with intent to distribute, finding no reversible error in the defendant's contentions, inter alia, that severance of the trial with codefendants having antagonistic defenses was improperly denied, and that Fourth Amendment rights were violated by a customs search, 19 U.S.C. § 1582, at an airport port of entry (nearest the final destination of the goods, but not the first port of entry in the United States).

The Facts

On January 22, 1980, a crated package was shipped from Shiraz, Iran, by way of Iran Air, destined for delivery to Denton, Texas. The air waybill (or air consignment note) accompanying the crate listed as the shipper a Mr. Ahmad Javadzadeh and as the consignee a Mrs. Nasren Javadzadeh ("Nasren"). The package first arrived in the United States via Air France at the Houston Intercontinental Airport, was then transferred to American Airlines as per the air way bill, and was then transported by bonded carrier (a subsidiary of American Airlines) instead of by air, pursuant to arrangements made by American Airlines, to the Dallas-Fort Worth Airport (DFW) (the airport of final destination, per the waybill), where the package arrived on January 25, 1980. An American Airlines employee sent to the consignee letter notification of the arrival of the package. Meanwhile, the package remained in the American Airlines in-bond room, where international shipments were stored pending United States Customs inspection. (A primary fourth amendment contention made by the defendant is that although Houston the airport where the shipment first landed is a port of entry which is the functional equivalent of the border, the DFW airport the final waybill destination, to which the goods were transhipped by the American airline to which the goods were transferred by Air France for final carriage to point of destination cannot be considered as such.)

On January 29, 1980, a customs inspector at DFW opened the crate in order to examine the shipped items a Koran and its display case. On close inspection, he discovered within the sides of the display case several secret compartments containing what was later determined to be 4.4 pounds of heroin. Drug Enforcement Administration (DEA) agents, who were immediately informed of the discovery, determined to prepare the display case for a controlled delivery. The heroin (except for a 14 gram sample that was returned to a hidden compartment of the display case) was removed from the secret compartments and replaced with Nestle's chocolate. The plastic bags containing the substitute were coated with a powder that stains the skin an orange color on contact. DEA agents also installed in the display case a beeper device wired to emit rapid beeping sounds upon the opening of the hidden compartments.

On February 5, 1980, Nasren, the consignee, picked up the crate and drove from DFW to her apartment in Denton, Texas (the address listed on the air waybill). At approximately midnight of February 6, 1980, DEA agents observed the arrival at the apartment of Hamid Javadzadeh Bijari ("Hamid"), Nasren's brother. Approximately five minutes after his arrival, Hamid left the apartment carrying the crate and he put it in the trunk of his car. DEA agents then followed him as he drove to a Sambo's Restaurant in Denton, Texas, where he parked next to a Chevrolet Blazer and then entered the restaurant. Inside he met the defendant Sheikh, and the two returned to the restaurant parking lot. There, Hamid transferred the crate from the trunk of his car to the backseat of Sheikh's Blazer. Both then entered their respective vehicles and returned to Nasren's apartment.

At approximately 3:00 a. m. on the morning of February 7, 1980, Sheikh left the apartment and entered the Blazer (with the crate still inside) and headed toward Dallas. DEA agents followed Sheikh to a motel in Greenville, Texas. At no time prior to this stop did DEA agents within the range of the beeper detect a change from the slow beeping sound emitted by the beeper device to that of a rapid beep (which was to be triggered upon the opening of the secret compartments in the display case). Within minutes of his arrival at the motel room, Sheikh removed the display case (the shipping crate had been discarded in a dumpster at a stop en route) from the Blazer and took it inside his motel room. About two minutes later Sheikh returned to the Blazer, this time to remove a tool box. Soon after Sheikh re-entered the motel room, DEA agents detected a change in the slow beeper signal to that of a rapid beeping sound, an indication that the hidden compartments of the display case had been opened. Immediately thereafter, Sheikh exited the motel room and headed toward the Blazer. However, DEA agents effected his arrest at the door of the Blazer before he could enter. Agents observed at the time of his arrest that Sheikh's hands were stained the same orange color as the powder used to dust the plastic bags inside the secret compartments of the display case. Hamid and Nasren were arrested later the same day at Nasren's apartment.

On February 21, 1980, a federal grand jury returned a two-count indictment charging that (1) on or about January 19 and February 7, 1980, Sheikh, Nasren, and Hamid conspired with each other and with others unknown to import heroin into the United States and to possess heroin with the intent to distribute (violations of 21 U.S.C. § 952(a) and § 841(a)(1)) in violation of 21 U.S.C. § 846 and § 963, 1 and (2) on or about February 7, 1980, Sheikh knowingly and intentionally possessed with intent to distribute approximately 4.4 pounds of heroin, in violation of 21 U.S.C. § 841(a)(1).

All three co-indictees were tried together at a jury trial. The jury returned a verdict of guilty as to Sheikh on both counts and found Nasren and Hamid not guilty on the conspiracy charge, the only count upon which these codefendants were charged. Sheikh was sentenced to ten years on both counts, with the terms to run consecutively. He was also assessed a special parole term of five years on both counts. Sheikh now appeals to this court for review of his convictions.

The Issues

The defendant Sheikh urges reversal of his convictions on the following contentions: (1) the trial court erroneously denied his motions for judgment of acquittal urged on the basis of the insufficiency of the evidence to support the jury verdict of guilty on the conspiracy charge; (2) the trial court erroneously denied his motions for severance made both pre-trial and during the trial of the three defendants; (3) there was a significant variance between the amount of heroin Sheikh was charged with possessing as set forth in the indictment and the amount proven at trial to have been in his possession; (4) the trial court erred in admitting evidence obtained in violation of the defendant's Fourth Amendment rights; and (5) the trial court violated his Sixth Amendment right to confrontation by its failure to conduct an inquiry to determine whether the codefendant Hamid justifiably asserted his Fifth Amendment privilege against self-incrimination.

1. The Conspiracy Charge

Sheikh and his codefendants Nasren and Hamid were charged in Count One of the indictment with conspiring with each other and with others unknown to import heroin and to possess heroin with intent to distribute. 2 Sheikh was found guilty of the charged conspiracy despite the acquittal of Nasren and Hamid. Sheikh argues that the district court erred in denying his motions for judgment of acquittal in light of his codefendants' acquittal and the insufficiency of the evidence to prove that he conspired with "others unknown." We agree that a judgment of acquittal on the conspiracy conviction should have been granted based on the insufficiency of evidence to support the jury verdict and, therefore, reverse the judgment of conviction on Count One.

The general rule of this circuit is that the conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged coconspirators on trial are acquitted. United States v. Klein, 560 F.2d 1236, 1242 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978); United States v. Peterson, 488 F.2d 645, 651 (5th Cir. 1974); United States v. Musgrave, 483 F.2d 327, 333 (5th Cir. 1973), cert. denied 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). However, a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy. United States v. Klein, supra, 560 F.2d at 1242; United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir. 1977); United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976); United States v. Pena, 527 F.2d 1356, 1365 (5th Cir. 1976), cert. denied 426 U.S. 949, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); United States v. Goodwin, 492 F.2d 1141, 1144-45 (...

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