U.S v. Tajeddini ( 1993 )


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  •                 UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-2294
    UNITED STATES,
    Appellee,
    v.
    HOJATOLLAH TAJEDDINI,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Edward F. Harrington, U.S. District Judge]
    Before
    Breyer, Chief Judge,
    Bownes, Senior Circuit Judge,
    and Boudin, Circuit Judge.
    Kenneth J.  King, with whom Fenn  & King, were  on brief for
    appellant.
    Robert W.  Iuliano, Assistant United  States Attorney,  with
    whom A.  John Papparlardo, United  States Attorney, was  on brief
    for appellee.
    June 3, 1993
    BOWNES, Senior Circuit  Judge.   Defendant and  his
    BOWNES, Senior Circuit  Judge.
    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
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    2
    for determination by  the district court.   United States  v.
    Tajeddini, 
    945 F.2d 458
    , 470 (1st Cir. 1991),  cert. denied,
    
    112 S. Ct. 3009
     (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.
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    3
    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
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    4
    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
    1.  The oldest child of defendant and McBride had been placed
    in  the  custody  of  the  California  Department  of  Social
    Services by the San Diego County, California, Juvenile Court.
    The arrest warrant was issued after McBride took the child in
    violation of the custody order.
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    5
    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.
    2.  On direct  examination at trial, the  defendant testified
    that he had been temporarily in Iran.  When he and his family
    left Iran, a friend,  George Shalmarez, who had lived  in the
    United  States, drove them from Iran to Turkey.  George asked
    defendant to  deliver  packages of  "cancer medicine"  called
    "shireb"  to a sick friend, Parviz  Parvin, in San Francisco.
    George also told him  that Parvin ran a limousine  service in
    San Francisco and might give him a job as a driver.
    -6-
    6
    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.
    -7-
    7
    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  (1985); United
    States v. Rodriguez-Cardona, 
    924 F.2d 1148
    , 1154 (1st. Cir.),
    cert. denied, 
    112 S. Ct. 54
     (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
     (quoting  United
    States v.  Frady, 456  U.S. at  163 n.14).   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
    3.  Fed. R. Crim. P. 52(b) provides as follows:
    Plain  Error.   Plain  errors  or defects
    affecting   substantial  rights   may  be
    noticed although they were not brought to
    the attention of the court.
    -8-
    8
    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
    know what this is.  My husband made me carry them, but I know
    it  was something bad."   The court found  that the statement
    was  inadmissible  hearsay because  McBride was  available to
    testify, and her  knowledge of the  contents of the  packages
    was being offered to establish defendant's knowledge  through
    a  statement which  was not  in furtherance of  their alleged
    conspiracy.
    At trial,  Customs Inspector  Pacewicz, who  was in
    the search room with  McBride, recounted McBride's actions of
    removing  the packages from her coat, and did not mention her
    previously excluded  statement.  Defendant did  not object to
    this  testimony   and  does  not  now   claim  that  allowing
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    9
    Pacewicz's testimony was  error.4   Defendant's complaint  is
    with  the way  the prosecutor  used  the evidence  in closing
    argument.   During closing argument, the  prosecutor made the
    following references to Inspector Pacewicz's testimony:
    At that time  Inspector Pacewicz  took
    Lori  Ann  McBride  to another  secondary
    search room.  As soon as Lori Ann McBride
    entered  the  secondary  search room  she
    dumped packages out of her coat.
    I  leave  it to  you, for  example, to
    decide what, if anything,  that indicates
    about  what Lori  Ann McBride  might have
    thought was in those packages.
    Later in his argument the prosecutor stated:
    You  heard how  Lori Ann  McBride then
    pulled the stuff out  of her pockets  and
    dumped it on the table.   Obviously, very
    nervous, very agitated.
    The   Customs   Declaration   of   the
    defendant  says  he is  travelling alone.
    Was there some understanding between Lori
    Ann  McBride  and  the  defendant?    The
    evidence, I suggest,  shows clearly  that
    there was.
    We note first that  defendant's allegation that the
    prosecutor used suppressed  evidence in  closing argument  is
    wrong.   The prosecution fully  adhered to the  court's order
    4.  Defendant may be arguing, by implication, that  Inspector
    Pacewicz's testimony about McBride's actions was inadmissible
    hearsay  evidence of  expressive conduct.   Because defendant
    has  not directly raised this as an  issue on appeal, we deem
    it waived.   United States  v. Zannino,  
    895 F.2d 1
    ,  17 (1st
    Cir.)  ("It  is  not  enough  merely to  mention  a  possible
    argument  in the most skeletal  way, leaving the  court to do
    counsel's work, create the ossature for the argument, and put
    flesh on its bones."), cert. denied, 
    494 U.S. 1082
     (1990).
    -10-
    10
    excluding  McBride's statement.    The  prosecutor's  closing
    argument  recounted  McBride's  actions,  not  her suppressed
    statement.  Inspector Pacewicz  also testified to her actions
    and not her statement.
    Defendant alternatively argues that by referring to
    McBride's  actions and  asking  the jury  to draw  inferences
    based on her actions, the prosecutor was attempting to convey
    the message, expressed by McBride's  excluded statement, that
    defendant knew  that the packages contained  contraband.  The
    prosecutor's  reference  to   McBride's  actions,   defendant
    argues,  should have been  excluded for the  same reason that
    the court excluded her statement.
    The prosecutor's  argument was not evidence  in the
    trial, as  the district  court properly instructed  the jury.
    Argument necessarily presents a partisan view of the evidence
    admitted  at  trial.     Although  the  prosecution  may  not
    interject personal credibility or opinion into argument,  the
    prosecutor is entitled, in  closing, to ask the jury  to draw
    warrantable  inferences from  the  evidence  admitted  during
    trial.   Young, 
    470 U.S. at 7
    ;  United States  v. Mount, 
    896 F.2d 612
    , 625 (1st Cir. 1990).
    The prosecutor asked the jury to consider "what, if
    anything" McBride's actions indicated about what  she thought
    was in  the packages  which  she threw  on  the table.    The
    prosecutor  later  suggested   that  McBride's  actions   and
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    11
    nervousness and defendant's  Customs Declaration that he  was
    travelling  alone indicated an  understanding between McBride
    and  defendant.    The  evidence at  trial  established  that
    McBride  threw the  packages  on  the  table in  the  Customs
    examination  room, that  she was  nervous during  the Customs
    examination,  and that  defendant  claimed  to be  travelling
    alone.   Therefore,  the prosecutor  asked the  jury  to draw
    warrantable inferences based upon the evidence at  trial.  We
    find  nothing  improper  in  the  prosecutor's  reference  to
    McBride's actions in closing  argument, and therefore we find
    no error.
    2.  Argument of Matters Not in Evidence and Personal
    Opinion
    Next,   defendant   asserts   impropriety  in   the
    prosecutor's  reference  to defendant's  decision  not to  go
    ahead with the controlled delivery in which he had originally
    agreed to  participate.5  At trial,  defendant testified that
    his decision not to  cooperate was motivated by his  fear for
    the safety  of his  wife and  family.   On cross-examination,
    defendant  admitted stating to DEA Agent  Desmond in a letter
    that Parvin was "the Al Capone of San Francisco" and  that he
    knew Parvin  "to be  the key  of the  whole  drug supply  for
    5.  When  asked  by  DEA  Agent Desmond  to  cooperate  in  a
    controlled delivery  of  the packages  containing  heroin  to
    Parvin,  the  intended recipient  of  the  "medicine" in  San
    Francisco, defendant initially agreed to participate and then
    changed his mind.
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    12
    California."    The  defendant  continued   to  maintain  his
    innocence, however,  claiming  that he  thought the  packages
    contained cancer  medicine for  Parvin, not  heroin.   In his
    closing, the prosecutor made the following remarks:
    Why,  ladies  and gentlemen,  would he
    not do it,  [the controlled delivery]  if
    he was confident that at the other end of
    the  road there  was someone  waiting for
    cancer medicine  and not  heroin?   If in
    fact,  someone  was  waiting   there  for
    cancer and medicine, he could have proved
    his innocence and surely he knows that in
    that  instance  he  would not  have  been
    prosecuted.
    In his  rebuttal, the  prosecutor responded  to the
    defendant's closing thus:
    Mr. Boudreau [the defense lawyer] just
    said that  I said in my  closing argument
    that  the  defendant   would  have   been
    prosecuted  anyway,  even if  he effected
    the controlled delivery.  That was not my
    point.    My   point  was  that  if   the
    defendant is telling the truth,  that the
    person at  the  other end  of  the  line,
    Parvis Parvin, was waiting  for medicine,
    he could  have  proved his  innocence  by
    effecting the delivery.
    The defendant said he initially agreed
    to do  it because he wanted  to show that
    the person  at the other end  of the line
    was waiting for medicine and  not heroin.
    Clearly,  the  defendant  could not  have
    thought that if  he effected the delivery
    and  the person was, in fact, waiting for
    medicine and was  sick with cancer,  that
    he would have been prosecuted.
    I think that,  clearly, he would  not,
    or  clearly   he  would  not   have  been
    prosecuted if he had proved his innocence
    in that manner.
    -13-
    13
    Although he did not  object at trial, defendant now
    opposes the prosecutor's  statements on two bases:   that the
    statements  refer to  matters not  in evidence  and that  the
    statements assert the personal beliefs of the prosecutor.  It
    is improper for  a prosecutor, in argument, to refer to or to
    seem to rely on matters not  in evidence.  Smith, 
    982 F.2d at 683
    .  It is also improper for a prosecutor to  insert his own
    credibility or opinions into argument.  Id.;  Mount, 
    896 F.2d at 625
    .   Defendant contends  that the  prosecutor's remarks
    impermissibly suggested that he knew something not introduced
    at trial which determined whether or not defendant would have
    been  prosecuted and  also interjected  his  personal opinion
    about defendant's actions.
    The prosecutor may have overstepped  the boundaries
    of  permissible argument  by offering  his opinion,  "I think
    that, clearly he would not, or clearly he would not have been
    prosecuted  if he had proved his innocence in that manner."6
    If so, the transgression  does not constitute plain error  in
    the context of the trial as a whole.  The  prosecutor did not
    routinely insert  his personal opinion into  the argument nor
    do  we find  that his  remark was  deliberate.   Although the
    court  did not  give a cautionary  instruction, we  find that
    6.  The prosecutor,  apparently, was  attempting to make  the
    point that  defendant refused to cooperate  in the controlled
    delivery to Parvin because he knew that the  circumstances of
    the delivery would not  clear him of the crimes  charged and,
    therefore, he would be prosecuted anyway.
    -14-
    14
    little,  if  any,  prejudice  resulted.    The  prosecution's
    argument about the implications  of defendant's choice not to
    participate in the controlled delivery was merely  cumulative
    of other evidence including defendant's confessions, admitted
    at  trial and  argued  in closing,  which showed  defendant's
    knowledge that  the packages contained heroin  and not cancer
    medicine.    Therefore,  the   remark  was  not  so  severely
    prejudicial as to undermine defendant's substantial rights or
    the fairness of the trial as a whole.
    Defendant   also   claims  that   the  prosecutor's
    argument as quoted above  impermissibly shifted the burden to
    defendant to prove his innocence.  We do not agree.  Further,
    the court  gave a  sufficient  charge on  the presumption  of
    innocence to  dispel any  improper suggestion which  the jury
    might have taken from the argument.7
    3.  Inflammatory Remarks
    7.  On the government's burden of proof, the court instructed
    as follows:
    The  law presumes  a  defendant to  be
    innocent  of a  crime.   Thus, defendant,
    although accused, begins the trial with a
    clean  slate,  with  no evidence  against
    him,  and  the  law  permits  nothing but
    legal evidence presented before  the jury
    to be considered in support of any charge
    against   the   defendant.       So   the
    presumption   of   innocence   alone   is
    sufficient to acquit  a defendant  unless
    the   jurors   are  satisfied   beyond  a
    reasonable doubt of the defendant's guilt
    after    a    careful    and    impartial
    consideration of all the evidence  in the
    case.
    -15-
    15
    Defense  counsel argued in closing that defendant's
    failure to hide the packages of contraband in suitcases or in
    hidden compartments indicated his innocence.  The  prosecutor
    answered in rebuttal as follows:
    Finally,  ladies  and  gentlemen,  Mr.
    Boudreau suggests that the  defendant, if
    he knew he was  smuggling in heroin would
    have  found a  secret compartment  in the
    luggage to  carry the heroin.   I suggest
    that  the  defendant  did find  a  secret
    compartment.      He   found   a   secret
    compartment in his  American wife who  he
    thought would not be searched because she
    was  an  American  wife  with  two  small
    children,   and   that   is  the   secret
    compartment that he  found and  attempted
    unsuccessfully to use.
    Defendant  now  argues  that the  prosecutor's  references to
    defendant's American wife were intended to inflame the jury's
    passions  and prejudices  against defendant  who is  Iranian.
    There is no doubt  that argument which is intended  to appeal
    to emotions rather than to reason is improper.  United States
    v. Moreno, No.  92-2018, slip op. at  10-11 (1st Cir. May  6,
    1993);  United States v. Johnson, 
    952 F.2d 565
    , 574 (1st Cir.
    1991), cert. denied, 
    113 S. Ct. 58
     (1992); United  States v.
    Giry, 
    818 F.2d 120
    , 132-33 (1st Cir.), cert. denied, 
    484 U.S. 855
      (1987).  That is  not the case  here, however.  Although
    the prosecutor's remarks,  taken in isolation, might  suggest
    an  appeal to the passions of  the jury, when his remarks are
    taken  in context, any such tactic  vanishes.  The prosecutor
    was countering the defense by arguing that defendant may have
    -16-
    16
    assumed that his American  wife would have an  easier passage
    through  Customs than he  would, and used  that advantage for
    smuggling the  packages of heroin.   Further, the  court gave
    the following cautionary instruction:
    The  fact that  the defendant  in this
    case  is  not  a  citizen  of the  United
    States and is by  birth an Iranian should
    not prejudice you for or against him, but
    he  should  be  treated  like  any  other
    defendant,  and  your verdicts  should be
    based  on  the  evidence  that  has  been
    introduced before you in this case.
    Reading the prosecutor's  remarks in context and  in light of
    the defense's closing argument, we find no impropriety in the
    statement.   If  any  prejudice was  communicated, the  court
    cautioned  the jury not  to allow  bias about  nationality to
    influence its decision.
    4.  Financial Motive for the Crime
    In  response to  defendant's claim  that he  had no
    motive  to   commit  the  crime  of   importing  heroin,  the
    prosecution argued  that defendant, and his  family, had only
    $700 when they  entered the  United States.   The amount  was
    based upon the combined Customs Declarations of defendant and
    McBride.  Defendant admitted that he had been promised $3,000
    if  he delivered the  contraband to Parvin.   The prosecution
    argued that the promised  payment provided a financial motive
    for defendant to  import the heroin.   Defendant now  asserts
    that he had  $1,456 in  traveller's checks with  him when  he
    entered the United States which the government seized when he
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    17
    was arrested. The government notes that after reviewing their
    files they agree  with defendant.  Defendant argues  that the
    prosecution's imputed financial motive was improper given the
    traveller's checks.   Defendant failed to  raise the argument
    at trial and failed to  mention the traveller's checks during
    his  testimony at  trial.   There is  no suggestion  that the
    prosecution deliberately misrepresented defendant's financial
    condition.  Further,  $3,000 remains  a financial  incentive,
    although  perhaps of somewhat  less significance.  Therefore,
    we find  the prosecution's  argument of financial  motive was
    proper under these circumstances.
    5.  No Plain Error
    We  have  found   that  the  prosecutor's   closing
    argument was, for  the most part, proper.  In  the context of
    the  entire trial, we find  that the aggregate  impact of any
    impropriety was minimal  and did not  cause a miscarriage  of
    justice.  Therefore, the trial was not marred by plain error.
    B.  Denial of Motion for Continuance
    The defendant  appeals the district  court's denial
    of  his  motion for  continuance to  allow  time in  which to
    obtain  additional  corroborative  evidence.    We previously
    considered this  issue in  defendant's appeal from  denial of
    his  28  U.S.C.    2255 petition.    At that  time, defendant
    claimed ineffective  assistance of  counsel due, in  part, to
    his  counsel's   failure  to  timely  file   the  motion  for
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    18
    continuance.    After trial  and  before the     2255 appeal,
    defendant obtained from  Iran a police report of  a statement
    by Ali Karabolout, one of  the people involved with defendant
    in  Iran,  which defendant  had  hoped to  present  at trial.
    Defendant  submitted the  police report  to this  court.   We
    reviewed   the  substance   of  Karabolout's   statement  and
    concluded that it  was hearsay.   We found that  Karabolout's
    statement was  not against significant penal  interest, as it
    was  more exculpatory  than inculpatory,  and that  it lacked
    sufficient  other  indicia  of  reliability  to  obligate the
    district court to find  that it fell within any  exception to
    the  hearsay rule.  We concluded that the documents from Iran
    were not  admissible in evidence and,  therefore, late filing
    of the  motion for  continuance did not  prejudice defendant.
    Tajeddini, 
    945 F.2d at 463-65
    .
    Defendant  now  requests  that  we  reconsider  our
    decision on  the ground that we  previously misunderstood the
    effect of Iranian law  on Karabolout which would result  from
    his statement to Iranian police.  We decline to do  so.  This
    appeal is, of course,  not an appropriate method to  move for
    reconsideration of our  previous decision.  See  Fed. R. App.
    P. 40.8   Further, when a  legal issue has been  presented to
    8.  After our decision and the  mandate to the district court
    was  issued,  the  defendant  filed  several   petitions  for
    extensions  of  time to  file a  motion  for rehearing  and a
    request  for recall of  mandate.  His  petitions and requests
    were denied because  he failed to  demonstrate any errors  in
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    19
    and  decided by this court,  our decision becomes  the law of
    the  case in all  subsequent proceedings on  the same matter.
    United States  v. Rivera-Martinez, 
    931 F.2d 148
    , 150-52 (1st
    Cir.),  cert. denied, 
    112 S. Ct. 184
     (1991); United States v.
    Rosen, 
    929 F.2d 839
    , 842 (1st Cir.), cert. denied, 
    112 S. Ct. 77
     (1991); United States v. Latorre, 
    922 F.2d 1
    , 9 (1st Cir.
    1990), cert. denied, 
    112 S. Ct. 217
     (1991).
    A court's determination  of foreign law is  treated
    as a  ruling on a question of law.   Fed. R. Crim. Pro. 26.1.
    Although  we retain  the power  to reopen  a question  of law
    previously  decided,  it is  our practice  to  do so  only in
    extraordinary circumstances such as when "'[(1)] the evidence
    presented in a subsequent  trial was substantially different,
    [(2)]  controlling  authority  has   since  made  a  contrary
    decision of the law  applicable to such issues, or  [(3)] the
    decision  was clearly  erroneous  and would  work a  manifest
    injustice.'"  Rivera-Martinez, 931 F.2d at 151 (quoting White
    v.  Murtha,  
    377 F.2d 428
    , 432  (5th  Cir. 1967));  see also
    Morgan  v.  Burke, 
    926 F.2d 86
    ,  91  (1st Cir.  1991), cert.
    denied, 
    112 S. Ct. 1664
     (1992).
    Extraordinary  circumstances do  not exist  in this
    case.    Defendant  makes  no   argument  that  substantially
    different  evidence  on  this  issue  was  presented  at  the
    our opinion.
    -20-
    20
    district  court  hearing  prior   to  this  appeal,  or  that
    controlling  authority has changed  since our  prior opinion.
    We are unconvinced by  defendant's argument that Iranian law,
    as  offered  by    defendant,9  requires  us  to  change  our
    decision on  this issue.   Therefore, our prior  holding that
    Karabolout's statement  was inadmissible hearsay  was neither
    clearly erroneous nor did it constitute a manifest injustice,
    and there is no reason to disturb it.
    C.  Delayed Discovery Disclosure
    Defendant  assigns as  error  the district  court's
    decision to allow the government to introduce statements made
    by  defendant to Customs  inspectors although  the statements
    were  not disclosed  to the  defense until three  days before
    trial.    Defendant claims  that the  late disclosure  of the
    statements violated Fed.  R. Crim. P. 16 and  was prejudicial
    to his defense.  We disagree.
    9.  The defendant has submitted a letter from the director of
    the  Interests Section of the Islamic Republic of Iran at the
    Embassy  of  Pakistan which  is  signed for  the  director by
    someone  else.  The letter  expresses an opinion,  based on a
    letter  from defendant's  attorney, that  the proceedings  in
    Iran  against Karabolout were only temporarily suspended, and
    that Karabolout may be exposed to criminal or civil penalties
    based  on his statement to  the Iranian police.   Although we
    are not bound by  the rules of evidence in  considering proof
    of foreign  law, the defendant's submission  is inadequate to
    inform this court  of Iranian law allegedly relevant  to this
    matter.
    -21-
    21
    Rule 16(a)(1), in the version in effect at the time
    of defendant's  trial,  required the  government to  disclose
    certain evidence prior to trial:
    Upon  request  of   a  defendant   the
    government shall permit the  defendant to
    inspect  and  copy  or  photograph:   any
    relevant  written or  recorded statements
    made by the defendant, or copies thereof,
    within the possession, custody or control
    of the government, the existence of which
    is known,  or  by  the  exercise  of  due
    diligence  may  become   known,  to   the
    attorney of the government; the substance
    of   any   oral   statement   which   the
    government intends to  offer in  evidence
    at   the  trial  made  by  the  defendant
    whether   before   or  after   arrest  in
    response to interrogation  by any  person
    then  known  by  the  defendant to  be  a
    government agent . . . ."
    Fed. R.  Crim. P. 16(a)(1)(A); see also  U.S. Dist. Ct. Mass.
    R. 116.1 (Automatic Discovery in Criminal Cases).  Rule 16(c)
    imposes a  continuing obligation  on all parties  to disclose
    other  evidence or material  previously requested and subject
    to  the  rule.   If  a party  fails to  provide  discovery as
    required by Rule 16,  the district court may impose  remedial
    measures  or  sanctions including  prohibiting  the violating
    party  from introducing the evidence at trial.  Fed. R. Crim.
    P.  16(d)(2).    In  exercising  its  discretion  to  control
    discovery rule violations,  the district  court must  inquire
    into  the surrounding circumstances  to determine whether the
    violating  party acted in bad  faith.  Id.;  United States v.
    Samalot Perez, 
    767 F.2d 1
    , 4 (1st Cir. 1985).   Our review of
    -22-
    22
    a  district  court's  rulings  on  discovery  matters  is  to
    determine whether  the court  abused its discretion.   United
    States  v. Alvarez,  
    987 F.2d 77
    , 85  (1st Cir.  1993).   To
    obtain reversal,  the defendant must prove  that the district
    court abused  its discretion  which resulted in  prejudice to
    the  defense.   Alvarez,  
    987 F.2d at 85
    ; United  States v.
    Nickens, 
    955 F.2d 112
    ,  126 (1st Cir.), cert. denied,  
    113 S. Ct. 108
     (1992).
    Defendant  objects to the  government's use  of two
    oral  statements  he made  in  response to  questioning  by a
    Customs inspector.   Answering routine questions  of where he
    was arriving from and with  whom he was travelling, defendant
    said that he had not been in Iran for six or seven years  and
    that  he was travelling alone.  Both of those statements were
    false.              During a hearing  on preliminary  matters
    at the beginning  of the trial, the district court questioned
    the government as to why the statements were not disclosed to
    defense counsel in a timely manner.  The government responded
    that the statements were unknown to them until the day before
    they  were disclosed  to defense  counsel, three  days before
    trial.  The next day, before testimony began, defense counsel
    asked  the court  to suppress the  statements on  the grounds
    that  the  late  disclosure,  three days  before  trial,  had
    -23-
    23
    prejudiced  his  opportunity  for  a  suppression  hearing.10
    The   district  court  conditionally   ruled  that   the  two
    statements  were admissible.    The court  cautioned that  if
    testimony during  trial showed  that  there was  a basis  for
    suppression, he would  halt the trial and  hold a suppression
    hearing.  When the  government alerted the court that  it was
    about  to  elicit  testimony  from  Inspector  Gaffney  about
    defendant's statements, the court directed  the government to
    proceed with the questions.  Defense counsel objected and the
    court overruled the objection without elaboration.
    On  appeal,   defendant   argues  that   the   late
    disclosure of  the statements by the  government deprived him
    of  an opportunity to attempt to suppress the statements.  He
    contends  that the  statements  should  have been  suppressed
    because  he  was  not   given  Miranda  warnings  before  the
    questioning  which  produced  the  statements.    Defendant's
    theory is that if the inspector who processed McBride through
    Customs  became aware of the  warrant for her  arrest and her
    relationship to defendant before another inspector questioned
    defendant, then there was a basis for detaining defendant and
    he was entitled to  Miranda warnings before being questioned.
    10.  A  suppression hearing  was held  before trial  on other
    matters.
    -24-
    24
    The  right  to  Miranda  warnings   attaches  in  a
    custodial  or coercive situation.  Oregon v. Elstad, 
    470 U.S. 298
    ,  309 (1985); United States  v. Masse, 
    816 F.2d 805
    , 809
    (1st  Cir. 1987).   Neither suspicion  nor probable  cause to
    arrest, without  action to  restrain the suspect,  invoke the
    requirement for Miranda warnings.  United States v. McDowell,
    
    918 F.2d 1004
    , 1008 (1st Cir. 1990); United States v. Mejia,
    
    720 F.2d 1378
    , 1381 (5th Cir. 1983); United States v. Silva,
    
    715 F.2d 43
    ,  46-48  (2d  Cir.  1983).    Routine  Customs
    questioning does not require Miranda warnings.  United States
    v.  Pratt, 
    645 F.2d 89
    ,  90-91 (1st Cir.),  cert. denied, 
    454 U.S. 881
     (1981).   Even if the  circumstances hypothesized by
    defendant had occurred, defendant was not entitled to Miranda
    warnings   before   answering   routine  Customs   questions.
    Therefore, the false statements made by defendant in response
    to  the Customs inspector's  questions were properly admitted
    into evidence.
    There is  no  question  that  the  statements  were
    disclosed  to  defendant  long past  the  discovery deadline.
    Defendant does  not argue  that the government  acted in  bad
    faith, however,  and the  court's inquiry concerning  why the
    government's disclosure was delayed does  not reveal evidence
    of bad faith by the government.  Defendant has not shown that
    the delay prejudiced his defense by impairing his opportunity
    to suppress  the statements.   The  court heard testimony  at
    -25-
    25
    trial from the Customs inspectors involved with defendant and
    McBride, and found that a suppression hearing was unnecessary
    before defendant's  statements were admitted.   Therefore, we
    find no abuse of the court's discretion to control  discovery
    violations  and no  resulting  prejudice  to  the  defendant.
    Defendant's  request  that  this  issue be  remanded  to  the
    district court for a suppression hearing is denied.
    Affirmed.
    -26-
    26