U.S. v. Tajeddini

• Decision Date: 26 September 1991
• Docket Number: 90-1681,Nos. 90-1441,90-1992 and 90-1545,s. 90-1441
• Citation: 945 F.2d 458
• Parties: UNITED STATES, Appellee, v. Hojatollah TAJEDDINI, Defendant, Appellant. Hojatollah TAJEDDINI, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 458

945 F.2d 458

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

Hojatollah TAJEDDINI, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

Nos. 90-1441, 90-1681, 90-1992 and 90-1545.

United States Court of Appeals First Circuit.

Submitted May 23, 1991.

Decided Sept. 26, 1991.

Hojatollah Tajeddini, on brief pro se.

Wayne A. Budd, U.S. Atty. and Brien T. O'Connor, Asst. U.S. Atty., on brief for appellee.

Before BREYER, Chief Judge, and CAMPBELL and SELYA, Circuit Judges.

PER CURIAM.

Petitioner was convicted after a jury trial of conspiracy to import heroin and of importation. No timely notice of appeal was filed from the conviction. Petitioner has now appealed from the denial of the following: (1) motion seeking a new trial on the basis of new evidence, (2) § 2255 petition alleging ineffective assistance of counsel, (3) motion to order for ineffective assistance of counsel, and (4) motion for return of seized property. All four were denied on their face without an evidentiary hearing. As there was much overlap among these filings, we will not now address each motion separately, but rather will focus on the major issues.

Petitioner's basic contention running through most of his motions is that he did not knowingly bring heroin into this country. Instead, he claims, an Iranian "friend" told him the substance was an herbal cancer medicine and asked him to bring it to one Parviz Parvin, who had liver cancer. Petitioner's counsel was ineffective in that he failed timely to seek a continuance so that petitioner could obtain the results of an Iranian police investigation of the "friend," he inadequately presented petitioner's defense, and then he neglected to file a notice of appeal. Petitioner now has the results of the Iranian police investigation and feels this new evidence supports his claim of innocence and warrants a new trial. In order to assess the materiality of the new evidence as well as petitioner's claims of ineffective assistance, we first review the trial record.

I

There was evidence of the following.

On October 20, 1988, petitioner, who is an Iranian citizen, his wife, and his two young children arrived in Boston on a flight from Germany. The wife, Lori Ann McBride, and the two children went through one customs line, and petitioner another. A computer check of McBride revealed an outstanding warrant for her arrest for parental kidnapping. Told of a problem and asked to step aside, McBride was observed to be very nervous and sweating profusely. She was taken to a secondary inspection room. Immediately upon entering, she removed from the pockets of her ski jacket five packages consisting of condoms in various wrappings. The substance within the condoms tested positive for heroin. Meanwhile, petitioner, in a separate line, had told a customs inspector that he had been a student in Germany, was travelling alone, and had not been in Iran for six or seven years. His customs declaration form similarly indicated that he was alone. He, too, was taken to a secondary inspection room. A search of his luggage revealed airline tickets for passengers described as infant Tajeddini (Tajeddini is petitioner's last name) and child Tajeddini.

DEA Agent Joseph Desmond was called to the scene. According to his testimony, after speaking with McBride and a customs inspector, he informed petitioner he was under arrest, administered Miranda warnings, and asked if he would answer questions. Petitioner responded that he was willing to answer questions, but did not understand why he was being held. Desmond terminated the conversation at that point. Fifteen to twenty minutes later Desmond returned at petitioner's request. Petitioner then said, according to Desmond, that for the sake of his wife and children petitioner wanted to explain. Petitioner proceeded to relate that he had obtained the opium in Germany from one Mohammed Ali Karabolout. Petitioner was to be paid $3000 for delivering it to Parvin, a large heroin dealer, in San Francisco. Petitioner offered to participate in a controlled delivery. The next day, petitioner, questioned again, said essentially the same thing. At neither of those interviews did petitioner claim that the substance was medicine or that Parvin had cancer. Preparations were made for a controlled delivery, but petitioner, informed that cooperation would not preclude prosecution and fearful of his family's and his own safety, decided not to follow through.

A chemist called by the government testified that the substance in question was 20% heroin and also contained caffeine, phenobarbital, acetaminophen, and starch. Starch is a common diluting agent, and the chemist also had seen caffeine used before.

Petitioner's testimony at trial differed significantly from that of the customs agents and Desmond. Petitioner testified that he had been working for the FBI in Iran in counter terrorist operations. After leaving Iran for his eventual return to the United States, petitioner had received the substance in question in Turkey from his friend Gholamreza, known as George, who, as a favor to petitioner, had driven petitioner and his family from Iran to Turkey. George said the substance was shireb, a medicine for "cancer and strong arthritis or bone tuberculosis or something," asked petitioner to deliver it to Parvin, and suggested that Parvin might, in return, hire petitioner as a limousine driver. Petitioner, his wife, and children then flew to Germany and, six days later, to the United States. At all times, the substance was in the pockets of the wife's jacket. Petitioner and his wife knew of the outstanding warrant for the wife's arrest. So that petitioner would not be tainted by the wife's feared arrest and would be available to bail out the wife and take care of the children, petitioner and his wife agreed to go through separate customs lines, petitioner said. For that reason, petitioner represented that he was travelling alone.

At United States Customs, petitioner was taken to an inspection room. After an hour of "torture" with more than ten agents "ripping off all [his] stuff," threatening to beat him, and threatening him with sexual assault in jail, Agent Desmond appeared. Petitioner could not tell Agent Desmond of his secret undercover work in Iran, so he did not mention his stay there. When informed by Agent Desmond that petitioner's wife was carrying heroin, petitioner denied any knowledge of any illegal substance. Indeed, cognizant of the outstanding warrant and therefore aware his wife likely would be arrested and searched, petitioner clearly would never have knowingly or willingly bought an illegal substance into this country, petitioner explained. Petitioner denied he had ever said he was being paid $3000 to carry the substance to Parvin.

II

We now turn to petitioner's arguments. We address only those fairly presented to the district court in the motion for new trial, the § 2255 petition, the motion to order for ineffective assistance of counsel, or the motion for seized property and its return, the denials of which petitioner has now appealed. We do not address matters raised in different motions or for the first time on appeal.

A. Ineffective Assistance of Counsel

1. Failure to communicate with petitioner

Petitioner asserts that counsel failed for several months to answer petitioner's calls or communicate in any manner with petitioner with the result that petitioner, frantic and bereft of advice, called and wrote to DEA agent Desmond, making statements--including that Parvin was a criminal--which were then used against petitioner at trial. These statements, petitioner claims, were the product of counsel's unconstitutional failure to communicate with him and therefore should be suppressed.

In particular, petitioner points to a November 17, 1988 letter to Agent Desmond introduced into evidence at the suppression hearing. (This letter has not been included in the portions of the record sent to this court, but apparently in it petitioner made statements indicating that petitioner believed Parvin to have a criminal background.) At the suppression hearing, petitioner's counsel stated "I have consulted with my client specifically about the question of the letter, and we have no objection to its admission...." Petitioner did not contradict counsel's statement. Apparently, petitioner then felt the letter was more helpful than harmful. Having consented to its admission, petitioner can not now complain.

At trial, the letter was not introduced, but, on cross examination, petitioner acknowledged referring in his letter to Desmond to Parvin as the Al Capone of San Francisco and claiming that Parvin was the key to the California drug supply. Petitioner sought to retract these statement somewhat by claiming they were not literally true, but rather had been an exaggeration so as to interest Desmond in helping petitioner prove petitioner's innocence. Petitioner, perceiving himself as the innocent dupe, felt efforts should be made to capture the real criminals--Gholamreza and/or Parvin. Petitioner then testified that he would "be glad to offer my own letter to [Desmond]." In other words, at the time of trial, petitioner seems to have wanted his letter introduced and felt it was consistent with his claim that he was being discriminated against because of his nationality while the true criminals went free. Having failed at that strategy, he now labels the letter as the product of ineffective assistance of counsel--counsel's failure to communicate with petitioner.

According to Agent Desmond's testimony at the suppression hearing, the letter in question was dated November 17, 1988, less than one month after petitioner's arrest. Moreover, Agent Desmond said, he had advised petitioner at his first court appearance in the presence of counsel to communicate through counsel, and the court, in a similarly vein, had tried to stem petitioner's admissions...