U.S. v. Tajeddini

• Citation: 996 F.2d 1278
• Decision Date: 05 April 1993
• Docket Number: No. 92-2294,92-2294
• Parties: UNITED STATES, Appellee, v. Hojatollah TAJEDDINI, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1278

996 F.2d 1278

UNITED STATES, Appellee, v. Hojatollah TAJEDDINI, Defendant, Appellant.

No. 92-2294.

United States Court of Appeals First Circuit.

Heard April 5, 1993.

Decided June 3, 1993.

Kenneth J. King, with whom Fenn & King, Jamaica Plain, MA, were on brief, for defendant, appellant.

Robert W. Iuliano, Asst. U.S. Atty., with whom A. John Papparlardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant and his wife, Lori Ann McBride, were indicted on charges of conspiracy to import more than 100 grams of a mixture or substance containing a detectable amount of heroin (Count One), and importation of more than 100 grams of a mixture or substance containing a detectable amount of heroin (Count Two). Defendant's wife pled guilty prior to trial. Defendant went to trial and a jury convicted him on both counts.

I. Prior Proceedings

This appeal comes to us via a 28 U.S.C. § 2255 petition. After trial, defendant's counsel failed to file a notice of appeal. Defendant, acting pro se, filed a series of motions in the district court collaterally attacking the verdict: a motion for a new trial based on ineffective assistance of counsel; a motion for a new trial based on newly-discovered evidence; a § 2255 petition to vacate, set aside or correct sentence; and a motion for return of seized property. The district court denied all of defendant's post-trial motions, and appeals from the denial of each motion were properly filed. We consolidated all the appeals and found that no relief was warranted on any of the motions except for the claim of ineffective assistance of counsel for failure to file a notice of appeal. We remanded that issue for determination by the district court. United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992). After a hearing, the district court found that because defendant had dismissed his counsel prior to the expiration of the appeal period there could be no claim for ineffective assistance of counsel. The court went on to hold, however, that defendant while proceeding pro se had inadvertently failed to file a timely appeal and reinstated defendant's right to appeal. It is this appeal that we now consider.

There are three issues before us on appeal: (1) whether the prosecutor's closing argument was proper; (2) whether the district court erred in denying defendant's motion for a continuance prior to the start of trial; and (3) whether the district court erred in admitting into evidence a statement by defendant.

II. The Facts

We begin by recounting the salient facts as disclosed at trial and in a pre-trial suppression hearing. Defendant, his wife, and their two children, arrived in Boston on October 20, 1988, after a flight from Frankfurt, Germany. Because he was a foreign national, defendant was first processed by Immigration. His wife and children, American citizens, proceeded directly to Customs inspection. After going through Immigration, defendant went to Customs where he was interviewed by Inspector Cheryl B. Gaffney.

Inspector Gaffney asked defendant the standard Customs questions: where he had been on the trip, where he lived, how long he was gone, and the purpose of his visit. In response, defendant stated that he had not travelled to Iran at any time during his trip and that he had not been to Iran in six or seven years. He also stated that he was travelling alone and gave Gaffney his Customs Declaration which indicated that he was travelling alone. After the interview, defendant was taken by Gaffney and Inspectors McGrath and Bird to another room for further questioning and a possible search.

Defendant's wife, Lori Ann McBride, and their two children, went to a different Customs line than defendant. She was interviewed by Inspector Pacewicz to whom she gave her Customs Declaration and her passport and those of her children. Following routine procedures for international travelers, Pacewicz made a Treasury Enforcement Communications System check on McBride to determine if she was a fugitive or was being sought by law enforcement officials. The check showed that there was an outstanding warrant for McBride's arrest in California on a parental kidnapping charge. ¹ Defendant knew of the outstanding warrant against his wife.

After Inspector Pacewicz learned of the warrant, he asked McBride and the children to go to a nearby examination table. At about the same time, defendant passed the examination table under escort of Inspectors Gaffney, Bird and McGrath. According to Pacewicz, McBride became "very nervous" on seeing defendant. This prompted Pacewicz to take her to a search room other than the one to which defendant was being escorted. Almost immediately on entering the room, McBride removed five packages from her coat and threw them on the table, saying, "I don't know what this is. My husband made me carry them, but I know it was something bad." After the packages had been thrown on the table, Inspector Pacewicz found that the contents tested positive for heroin.

Sometime later, Special Agent Joseph Desmond of the Drug Enforcement Agency ("DEA") came to the Customs area. He talked to Inspector Pacewicz and then talked to McBride for about fifteen minutes. Desmond then went to interview defendant. Before questioning defendant, Desmond advised him of his Miranda rights. Defendant said he understood his rights, but did not understand why he or his wife were being held. Desmond then ended his discussion with defendant and began processing McBride and making arrangements for their two children.

While so occupied, Desmond was informed that defendant wanted to see him. Desmond and defendant then had an extended conversation. Defendant told Desmond that he obtained the "opium" in Germany from an Iranian named Mohammed Ali Karabolout. He said that he was to be paid $3,000 if he delivered the opium to one Parviz Parvin in San Francisco. Defendant told Desmond that Parvin was a "large heroin dealer." ²

Desmond talked to defendant again after his arrest. Defendant repeated what he had told him before about where and from whom he had obtained the "opium" and how much he was to be paid for delivering it. Desmond and defendant then discussed carrying out a controlled delivery whereby Parvin would be arrested after defendant made the delivery. After considering the plan in detail and after consulting with an attorney, defendant told Desmond that he did not want to participate in the controlled delivery to Parvin.

The district court held a pre-trial suppression hearing on both McBride's and defendant's motions to suppress their oral and written statements and certain physical evidence. The motions were denied as to defendant, but were partially granted as to McBride. After McBride pled guilty, the prosecutor moved to admit certain evidence including McBride's statement made when she threw the packages of contraband onto the table in the Customs examination room. The court suppressed McBride's statement and it was not mentioned at trial although the Customs inspector described her actions.

III. Analysis

Defendant raises three issues on appeal. He first challenges parts of the prosecutor's closing argument on the following grounds: (1) an impermissible reference to excluded evidence; (2) argument of matters based on the prosecutor's personal belief and opinion and knowledge of matters not in evidence; (3) an attempt to inflame passions or prejudice of the jury; and (4) a misrepresentation of defendant's finances to suggest a motive for the crime. In addition, defendant appeals the district court's denial of his motion for a continuance, and the court's decision to admit evidence at trial which was not disclosed to defendant until three days before trial.

A. Prosecutor's Closing Argument

Because defendant failed to object at trial to the prosecutor's statements made in closing argument, we review defendant's claims on appeal under the plain error standard. United States v. Young, 470 U.S. 1, 6, 14-15, 105 S.Ct. 1038, 1041, 1045-46, 84 L.Ed.2d 1 (1985); United States v. Rodriguez-Cardona, 924 F.2d 1148, 1154 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991); Fed.R.Crim.P. 52(b). ³ The plain error exception is to be used " 'sparingly, solely in circumstances in which a miscarriage of justice would otherwise result.' " Young, 470 U.S. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816). We consider the prosecutor's statements in the context of the entire trial. United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st Cir.1993); United States v. Smith, 982 F.2d 681, 682 (1st Cir.1993); Rodriguez-Cardona, 924 F.2d at 1154. Three significant factors guide our evaluation of whether the trial was so tainted by prosecutorial misconduct in argument as to constitute plain error: "(1) whether the prosecutor's conduct was isolated and/or deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether it is likely that any prejudice surviving the judge's instruction could have affected the outcome of the case." United States v. Hodge-Balwing, 952 F.2d 607, 610 (1st Cir.1991); see also Morales-Cartagena, 987 F.2d at 954. With these tenets in mind, we address each of defendant's allegations of misstatement by the prosecutor to determine whether there was error, and then we assess the aggregate effect on the trial as a whole.

1. Alleged Reliance on Evidence Excluded From Trial

Defendant claims that the prosecutor's closing argument relied on evidence that had been excluded from the trial as hearsay. Before trial, the court suppressed McBride's statement, made during the Customs examination as she emptied packages from her coat onto a table, "I don't...