U.S. v. Zandi, s. 84-5320

• Decision Date: 08 August 1985
• Docket Number: 84-5321,Nos. 84-5320,s. 84-5320
• Parties: UNITED STATES of America, Appellee, v. Hadi ZANDI, Appellant. UNITED STATES of America, Appellee, v. Mehdi ZANDI, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 229

769 F.2d 229

UNITED STATES of America, Appellee, v. Hadi ZANDI, Appellant.

UNITED STATES of America, Appellee, v. Mehdi ZANDI, Appellant.

Nos. 84-5320, 84-5321.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1985.

Decided Aug. 8, 1985.

David B. Adler, Washington, D.C., Garth M. Wainman, Fairfax, Va. (Hazel, Beckhorn & Hanes, Fairfax, Va., on brief), for appellants.

Dale A. Zusi, Sp. Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Kenneth E. Melson, Asst. U.S. Atty., Arlington, Va., Daniel W. Cotter, Third Year Law Student on brief), for appellee.

Before MURNAGHAN and SNEEDEN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

I.

Hadi and Mehdi Zandi seek reversals of their convictions for possession of opium with intent to distribute on the following grounds: 1) the delay between their indictment and trial violated the Speedy Trial Act, 18 U.S.C. Sec. 3161 (Supp. IV 1980); 2) the government failed to prove that the Zandis possessed the opium within the meaning of 21 U.S.C. Sec. 841(a)(1); 3) the government failed to prove that the Zandis had knowledge that opium was concealed within a package labelled "gift cloth"; 4) the Zandis were not given any notice by the government that it would attempt to prove a conspiracy at trial; and 5) certain prejudicial evidence was wrongfully admitted.

On October 26, 1983, Hadi and Mehdi were arrested at Dulles International Airport as they attempted to claim a package, which, on arrival from Pakistan, had been stored in a bonded customs warehouse. On the basis of the contents of the package, both appellants were charged by the Government with importation of opium, 21 U.S.C. Sec. 952(a), and possession of opium with intent to distribute, 21 U.S.C. Sec. 841(a)(1).

A preliminary hearing was held on November 3, 1983 before a Magistrate. Probable cause was found on the charges brought against Hadi, however, the charges against Mehdi were dismissed for lack of probable cause. On November 28, 1983, the charges against Hadi, pursuant to the Government's request, were dismissed without prejudice.

On April 2, 1984, a grand jury for the Eastern District of Virginia returned a two count indictment against Hadi and Mehdi. Count I charged a violation of 21 U.S.C. Sec. 952(a) (importation) and Count II charged a violation of 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute) and 18 U.S.C. Sec. 2 (aiding and abetting).

Mehdi was notified of the pending indictment on June 29, 1984 when he was arrested at his home. Mehdi pled not guilty to both counts. Hadi returned from California, where he was living, and turned himself in on July 10, 1984. Hadi also pled not guilty to both counts. Trial was scheduled for August 29, 1984.

Prior to trial, the Zandis filed motions, inter alia, seeking dismissal of the indictment on speedy trial grounds. After pretrial hearings were held, the motions were denied. The district court, however, granted the government's motion for a continuance and rescheduled the trial for September 18, 1984. The jury returned verdicts of not guilty on Count I (importation) and guilty on Count II (possession with intent to distribute) as to both defendants. ¹

The appellants were each sentenced to one year imprisonment and a three year special parole term.

II.

Mehdi and Hadi are brothers who were living with their Uncle Noormohammedi ("Uncle Noory") in the United States. Appellants are Iranian citizens. Morteza Zandi is a brother of the appellants who, in 1982, fled Iran and went to Pakistan. While in Pakistan, Morteza received financial support from the appellants amounting to $10,000 by August 3, 1983.

On August 3, 1983, Mehdi called Morteza in Pakistan. Mehdi recorded the conversation. The brothers engaged in a rather cryptic discussion about a "box of presents" which was to be sent to the United States from Pakistan. The box was to be sent to a post office box number provided by Mehdi. Morteza requested that $3,000 be sent to him. On August 22, 1983, Hadi sent Morteza the requested sum.

On September 22, 1983, the manifest to the box referred to in the recorded conversation of August 3, 1983, was sent to a post office box of Uncle Noory's friend, Mohammed Ayat. The return address was a hotel in Pakistan at which Morteza had previously been a guest. The manifest indicated that the package contained "gift cloth." The package was addressed to "Kamran Divani KISA." ² The name of the shipper was false.

On October 24, 1983, after learning that the package had arrived at Dulles airport, the appellants went to pick it up. They paid $5.00 to obtain an airway bill receipt and a carrier's certificate. That same day, the appellants took the documents to Cosimano, Inc., in whose bonded warehouse at Dulles the package was being stored. Cosimano told them that they had to pay a $50.00 storage fee and a $20.00 after hours surcharge before receiving the package. Mehdi allegedly told Cosimano that he would come back the next day during normal hours in order to avoid the surcharge.

On October 25, 1983, Mehdi returned to the warehouse, paid the $50.00 storage fee, obtained the receipt for it and produced the airway bill and carrier's certificate. Mehdi then asked a warehouse employee to bring the package to the front office. She did so and informed Mehdi that a Customs inspector was in the office ready to clear the package. Mehdi, however, left abruptly without obtaining possession of the package. ³

Mehdi's abrupt departure raised the suspicions of the warehouse staff. A customs inspector was promptly called. The inspector opened the package and discovered packets of opium. Some of the opium was removed and the box was resealed.

On October 26, 1983, Hadi and Mehdi drove to the warehouse to pick up the box. Mehdi stayed in the car while Hadi went inside to claim the package. Hadi presented the necessary documents to Cosimano. Cosimano had the box brought up to the front office. Hadi stated that he was picking up the package for his Uncle Noory. After Hadi was handed the package, he was asked by a custom's officer to open it for inspection. Hadi complied and assisted in the removal of articles from the box. During the inspection, the opium was discovered. Hadi was immediately arrested. Mehdi was then arrested in his car.

III.

The appellants contend that their indictments should have been dismissed because they were not brought to trial within 70 days of their indictment on April 2, 1984; the four day trial began on September 18, 1984. While the appellants did not explicitly state which provision of the Speedy Trial Act was implicated in the instant action, they presumably rely upon Sec. 3161(c)(1) of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq.:

(c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate on a complaint, the trial shall commence within seventy days from the date of such consent.

They further claim that the government did not use "due diligence" to find Hadi and Mehdi after they were indicted ⁴ and thus it cannot avail itself of the pertinent excludable delay provision in the Act. See 18 U.S.C. Sec. 3161(h)(3)(B). ⁵

The language in Sec. 3161(c)(1) indicates that the seventy day statutory period for the commencement of a trial runs from the "filing date ... of the ... indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." Since the appellants, in the instant case, appeared before a judicial officer after the date of the indictment, the dates of arraignment, and not the date of indictment, are relevant to our Speedy Trial inquiry. ⁶ Accordingly, we must determine whether the Zandis were tried within 70 days of their arraignment.

Mehdi was arraigned on July 9. Hadi appeared before a judicial officer even later than Mehdi since he first turned himself in on July 10, 1984. The period from July 9 (or July 10) to August 29 was far less than 70 days, thus, the August 29 trial date clearly complied with the time prescriptions of the Speedy Trial Act. As to the continuance to September 18, it constituted excludable delay and therefore did not offend the 70 day trial requirement. ⁷

Since there had been no violation of the Speedy Trial Act the issue of "due diligence" need not have been reached by the district court. See United States v. Fielding, 645 F.2d 719 (9th Cir.1981). In Fielding, the appellant had been indicted on July 15, 1975. He was arrested in April 1979, approximately four years later, in Peru. He was then returned to the United States and arraigned on May 30, 1979. The trial was scheduled for July 16, 1979, clearly within the 70 day period prescribed in 18 U.S.C. Sec. 3161(c). The government thereafter sought a one month continuance. The appellant contended that the one month continuance was unjustified and, as a result, the granting of the continuance resulted in a violation of the Speedy Trial Act. The Ninth Circuit ruled that the continuance was proper and therefore rejected appellant's speedy trial claim. Significantly, whether the government exercised "due diligence" in locating the appellant during the four year period between indictment and arrest was not in issue since the relevant time period, for Speedy Trial Act purposes, began only after arraignment in May 1979 (i.e. after the appearance before a judicial officer). ⁸

We next turn to the issue of whether there was sufficient evidence for a jury to conclude that the brothers had possession of...