United States v. Abbas ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5621
SYED ABBAS, a/k/a Qasim,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CR-92-96-K)
Argued: December 7, 1995
Decided: January 31, 1996
Before RUSSELL, WILKINSON, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Wilkinson and Judge Niemeyer joined.
_________________________________________________________________
COUNSEL
ARGUED: Michael Gregory Middleton, Baltimore, Maryland, for
Appellant. Jan Paul Miller, Assistant United States Attorney, Green-
belt, Maryland, for Appellee. ON BRIEF: William H. Murphy, Jr.,
Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Greenbelt, Maryland.
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
After nine days of trial testimony regarding his participation in a
heroin conspiracy in Baltimore, Syed Qasim Abbas ("Abbas") was
convicted for conspiring to import heroin into the United States in
violation of 21 U.S.C. § 963; conspiring to distribute and possess with
intent to distribute one kilogram or more of heroin in violation of 21
U.S.C. § 846; and distribution of heroin in violation of 21 U.S.C.
§ 952(a). Abbas appeals his conviction asserting that the district
court: (1) erred in refusing to permit him to reopen his case in order
to call a co-defendant who had formally invoked his Fifth Amend-
ment protection against self-incrimination; (2) improperly admitted a
Drug Enforcement Agency ("DEA") chemist's expert testimony that
the seized substance was heroin; and (3) improperly instructed the
jury. Affirming his conviction, we hold that the district court properly
exercised its discretion in rejecting Abbas' motion to reopen his case;
that the DEA expert testimony was admissible; and that the jury
instructions were proper in both form and substance.
I.
According to the evidence of record, Abbas drove Mahmood Ali
("Ali") to Baltimore to sell heroin, which Ali had just smuggled in
from Pakistan via Newark Airport. While in Baltimore, Abbas and Ali
sold over one kilogram of 80% pure heroin to another known dealer
and an undercover United States Customs Service agent. Their entire
meeting, which was the first in a series of transactions and negotia-
tions, was recorded on video and audio tape. During the sale, Abbas
talked openly about future drug transactions, the difficulty in dealing
with small bills, and the difference between liquid and powdered
forms of drugs. Abbas and Ali received $15,000 as a courier fee.
Despite the evidence against him, Abbas maintains that he had no
knowledge that the Baltimore transaction was a heroin deal. Instead,
Abbas insists that he believed he was participating in a gemstone sale.
II.
We first review Abbas' contention that the district court's denial of
his motion to reopen his case in order to call a co-defendant who had
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formally invoked his Fifth Amendment protection against self-
incrimination denied Abbas his constitutional right to present defense
witnesses. The Sixth Amendment provides that a criminal defendant
has a right to present his best defense. U.S. Const. amend. VI. A
defendant's right to present his best defense includes a right to obtain
the testimony of witnesses and compel their attendance. Washington
v. Texas, 388 U.S. 14 (1967). In fact, the right to call witnesses may
sometimes trump state and federal evidentiary rules and statutes. Id.
at 17-23 (holding that Texas state statute prohibiting persons charged
or convicted as co-conspirators in the same crime from testifying for
one another arbitrarily violated the accused's right to put witnesses on
the stand as well as compel their attendance in court); see Chambers
v. Mississippi, 410 U.S. 284 298-303 (1973) (holding trial judge's
mechanistic application of Mississippi evidentiary rule prohibiting
inadmissible hearsay, which proved vital to the accused's defense,
violated accused's right to present witnesses). One's right to call wit-
nesses, however, exists only during trial. After the close of evidence,
the defendant no longer has an absolute right to call witnesses, but he
may be permitted to do so only at the discretion of the trial court.
United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991) (emphasis
added). From the evidence of record, Abbas was given every opportu-
nity to call witnesses and present his best defense before he rested his
case. The only question before this court, therefore, is whether the
district court abused its discretion in failing to reopen Abbas' case
after the close of evidence so that he could recall a witness.
On the eighth day of trial, Abbas informed the district court and
opposing counsel for the first time of his intention to call as a witness
Khalid Khan ("Khan"), a co-conspirator in the heroin transaction.
After promptly contacting Khan's attorney, arrangements were made
to transport Khan from the city detention center--where he was being
held pending the Government's case against him*--to court the fol-
lowing morning.
_________________________________________________________________
*Khalid Khan helped orchestrate the heroin smuggling from Pakistan
by recruiting Mahmood Ali to illegally carry the drugs into the United
States. In its efforts to curtail international drug trafficking, the Govern-
ment went to great lengths to extradite Khalid Khan from Pakistan to
face trial.
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Abbas proffered Khan would testify that on the day of the Balti-
more transaction, Ali assured Khan that Abbas was a stranger to the
co-conspirators; that Abbas knew nothing about the heroin deal; and
that Abbas believed they were conducting a gemstone transaction in
Baltimore. When called to testify, however, Khan, on the advice of
counsel, repeatedly asserted his Fifth Amendment privilege against
self-incrimination. Subsequently, the district court entertained
motions throughout the morning regarding Khan's proffered testi-
mony, Khan's Fifth Amendment assertion, and Abbas' motion that
the district court confer judicial immunity to Khan. After these
motions were denied, Abbas neither called additional witnesses nor
testified himself. Both sides rested and the jury was told that closing
arguments would commence after lunch.
During luncheon recess, and while in lock-up together, Khan told
Abbas he would testify despite his Fifth Amendment privilege. Abbas
reported Khan's changed disposition to the district court and
motioned that he be allowed to reopen his case to call Khan to the
stand. The Government objected and the district court denied Abbas'
motion to reopen his case.
It is within the district court's sole discretion to reopen a case to
admit new evidence. Paz 927 F.2d at 179; and United States v. Peay,
972 F.2d 71, 73 (4th Cir. 1992), cert. denied , 113 S. Ct. 1027 (1993).
When reviewing whether or not the judge abused his discretion in not
reopening a case, we examine (1) whether the party moving to reopen
provided a reasonable explanation for failing to present the evidence
in its case-in-chief; (2) whether the evidence was relevant, admissible,
or helpful to the jury; and (3) whether reopening the case would have
infused the evidence with distorted importance, prejudiced the oppos-
ing party's case, or precluded the opposing party from meeting the
evidence. Id.To prevail under Peay, Abbas must demonstrate each prong of the
test. If Abbas fails to substantiate even one prong of the test, due def-
erence is given to the discretion of the sitting judge.
After analyzing the first prong of Peay, we conclude that Abbas did
not provide the district court with a reasonable explanation of why he
was unable to present the evidence during his case-in-chief. Although
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we know that the intended evidence was precluded because Khan had
asserted his Fifth Amendment privilege, we find it suspicious, as did
the district court, that Khan decided to waive his privilege against
self-incrimination and testify after he had a personal conversation
with Abbas. Consequently, we find no error in the district court's
decision to uphold Khan's right against self-incrimination despite his
alleged change of heart. Where the right to compulsory process and
self-incrimination are in conflict, the privilege against self-
incrimination prevails. Royal v. State of Maryland, 529 F.2d 1280,
1283 (4th Cir. 1976).
Even though we need not reach the second prong of the test
because Khan's testimony was precluded from trial as a result of his
Fifth Amendment assertion, we find it necessary to comment on the
testimony's questionable admissibility. The record reveals Abbas
proffered that Khan had a conversation with Ali, another co-
conspirator, in which Ali told Khan that Abbas was a stranger to the
deal, and that Ali had convinced Abbas to drive Ali to Baltimore to
take part in a gemstone transaction. This brand of hearsay would not
be considered hearsay and is admissible pursuant to Federal Rule of
Evidence 801(d)(2)(E). Khan's proffered testimony contains a state-
ment by a co-conspirator of a party during the course and in further-
ance of the conspiracy. Rule 801(d)(2)(E) however, applies only
when the statement is offered against a party of the conspiracy. Fed.
R. Evid. 801(d)(2)(E). The rule permits introduction of co-
conspirators' statements as evidence against defendant co-
conspirators. Id. In this instance, Khan's proffered testimony was
being offered by Abbas--a party to the conspiracy--against the pros-
ecution. But the prosecution is not a "party" against whom such testi-
mony may be tendered. United States v. Kapp, 781 F.2d 1008, 1014
(3rd Cir.), cert. denied, 475 U.S. 1024 (1986). Thus, we conclude that
Khan's proffered testimony was inadmissible.
As to the third prong of the test, we conclude that even if the dis-
trict court had permitted Khan to testify after delaying the jury all
morning, and after initially acknowledging Khan's Fifth Amendment
privilege, Khan's testimony would have carried with it distorted
importance which would have infected the proceedings.
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We therefore hold that the district court did not abuse its discretion
in prohibiting Abbas from reopening his case and introducing inad-
missible testimony.
III.
We next turn to Abbas' argument that the district court should have
granted Khan immunity because the Government's threat to use
Khan's testimony against him in his upcoming trial forced Khan to
assert his Fifth Amendment privilege. Abbas contends that the Gov-
ernment's refusal to grant immunity was a deliberate attempt to dis-
tort the judicial fact-finding process. We reject Abbas' contention as
meritless.
We have held that the district court is without the authority to con-
fer immunity sua sponte. See United States v. Klauber, 611 F.2d 512,
517 (4th Cir. 1979) (emphasizing that the district judge lacks the
power to confer immunity on witnesses), cert. denied, 446 U.S. 908(1980); and Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir.) ("A
district judge is not authorized to initiate immunity"), cert. denied,
423 U.S. 933 (1975). And the prosecution is vested with the sole dis-
cretion to grant immunity. United States v. Karas, 624 F.2d 500, 505
(4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981). On occasion how-
ever, the district court can compel the prosecution to grant immunity
when (1) the defendant makes a decisive showing of prosecutorial
misconduct or overreaching and (2) the proffered evidence would be
material, exculpatory and unavailable from all other sources. United
States v. Mitchell, 886 F.2d 667, 669-70 (4th Cir. 1989); United States
v. Gravely, 840 F.2d 1156, 1160 (4th Cir. 1988). Without misconduct
or overreaching, the Government is not required to provide defense
witnesses immunity. Id.In the instant case, we find no evidence of misconduct or over-
reaching in the prosecution's refusal to grant immunity to Khan.
Despite Abbas' arguments to the contrary, the Government did not
deliberately deny Khan immunity so as to distort the fact-finding pro-
cess. In fact, the Government exercised sound judgment in its refusal
to grant immunity. The Government expended great efforts and
resources to have Khan extradited from Pakistan to stand trial. Grant-
ing Khan immunity would be an insult to the Pakistani authorities.
6
Furthermore, Khan was a significant figure in the illegal heroin trade.
It would be preposterous to grant immunity to an orchestrator of inter-
national drug smuggling to secure the conviction of a seemingly
lower-level co-conspirator. In sum, we refuse to conclude that the
Government's denying immunity to Khan--the subject of impending
prosecution--amounted to prosecutorial misconduct. The district
court therefore, lacked the necessary authority to compel the Govern-
ment to grant Khan immunity.
IV.
We next turn to Abbas' contention that the district court erred in
admitting a DEA chemist's expert testimony that the substance
obtained in the Baltimore transaction was heroin. Abbas contends the
admission of the DEA chemist's expert test results, which relied on
"standards" determined by other chemists, violated his Sixth Amend-
ment right to confront witnesses because he was not given an oppor-
tunity to cross-examine the chemists who developed the standards.
We find Abbas' claim to be meritless.
While it is axiomatic that the Sixth Amendment ensures that an
accused has the right to confront witnesses, we recognize that the
right to confrontation is not violated by an expert's reliance on out-of-
court sources where the utility of trial confrontation would be remote
and of little value to either the jury or the defendant. Reardon v.
Manson, 806 F.2d 39, 41 (2d Cir.), cert. denied 481 U.S. 1020 (1986);
accord United States v. Simmons, 773 F.2d 1455, 1459-60 (4th Cir.
1985) (finding the admission of an ATF firearms form under the gen-
eral exception to the hearsay rule did not violate the Confrontation
Clause because the utility of confronting record-keepers at trial was
so negligible and did not require that the prosecution produce a seem-
ingly available witness). It is extremely rare for an expert's proffered
opinion not to rely upon information gathered out of court. As the
Second Circuit has stated:
Reliance upon the output of others does not necessarily vio-
late the Confrontation Clause where the expert is available
for questioning concerning the nature and reasonableness of
his reliance . . . This is particularly true where the defendant
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had access to the same sources of information through sub-
poena or otherwise.
Reardon, 806 F.2d at 43 (emphasis added).
In the instant case, the DEA chemist conducted the following com-
parison tests: gas chromatography, infrared spectroscopy, and mass
spectroscopy. All of the tests are conducted in such a way that the
unknown substance is compared to a standards graph generated by a
known sample of heroin. According to the trial record, the DEA
chemist testified that he compared the unknown substance he was
analyzing to several different known standards. He obtained these
standards from a "standards" library he maintains, from Georgia's
Crime lab computer library, from published standards (textbooks etc.)
and from authenticated standards given to the DEA laboratories. The
authenticated standards are tested by DEA technicians and kept in a
standards vault. The DEA chemist further testified that all of the stan-
dards in his personal library of standards were based on the authenti-
cated standards maintained by the DEA laboratories. Finally, the
DEA chemist testified that although he could not recall the specific
names of the published textbooks he used in this particular case, he
used books and standards normally accepted in the field of chemical
analysis.
Abbas seeks application of a rule that would make it nearly impos-
sible to rely on any scientific standard. Abbas insists that a standard
could be used at trial only if the defendant could cross-examine all of
the scientists whose work contributed to the creation of any standard.
We conclude that Abbas' demand is unrealistic and ignores the very
reason why Federal Rule of Evidence 703, "Bases of Opinion by
Experts," exists.
Rule 703 exists so that scientific standards may be admitted as
trustworthy and reliable exceptions to the hearsay rule, thereby negat-
ing the need to parade into court each and every individual either
remotely or intimately involved in the creation of a particular stan-
dard. Rule 703 states:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
8
made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
The rule encapsulates a policy interest in allowing scientific standards
into evidence with minimal expense and delay. From the evidence of
record, we find that the DEA chemist testified that his use of stan-
dards in the gas chromatography, infrared spectroscopy, and mass
spectroscopy tests are generally accepted standards in the field of
qualitative chemical analysis, and are admissible under Fed. R. Evid.
703. See, e.g., United States v. Jones, 687 F.2d 1265 (8th Cir. 1992);
United States v. Hollman, 541 F.2d 196 (8th Cir. 1976). We conclude
therefore, after examining both the policy interest surrounding the
admission of accepted scientific testimony and the DEA chemist's
testimony that his tests relied used industry standards, that Abbas'
right of Confrontation was not denied. Abbas could have directly
rebutted the weight of the standards evidence by proffering his own
expert testimony and by vigorously cross-examining the DEA chem-
ist.
V.
Finally, we turn to Abbas' contention that the district court erred
in its jury instruction. The decision of whether to give a jury instruc-
tion and the content of an instruction are reviewed for abuse of discre-
tion. United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992),
cert. denied, 113 S. Ct. 1013 (1993). Abbas contends the district court
erred in giving an instruction on "willful blindness." Abbas also
argues the district court should have given an instruction defining rea-
sonable doubt. In rejecting each of Abbas' arguments, we hold that
the district court did not abuse its discretion because the instructions
were properly submitted to the jury in both form and substance.
A.
Abbas first contends that the district court erred in giving the stan-
dard jury instruction on willful blindness. "A willful blindness
instruction is appropriate when the defendant asserts a lack of guilty
knowledge but the evidence supports an inference of deliberate igno-
9
rance." United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.), cert.
denied, 114 S. Ct. 204 (1993). Moreover, where the evidence pres-
ented in the case supports both actual knowledge on the part of the
defendant and deliberate ignorance, a willful blindness instruction is
proper. Id. at 974; United States v. Arias, 984 F.2d 1139, 1143 (11th
Cir.), cert. denied, 113 S. Ct. 2979 (1993). Abbas maintains however,
that there was no trial evidence of willful blindness and that, by the
mere fact the instruction was given, the jury may have erroneously
construed that the government had produced such evidence. We con-
clude the record demonstrates that Abbas' claim is meritless.
Abbas' defense centered on his claim that he thought the transac-
tion involved gemstones and not heroin. His defense, therefore, met
the first requirement for a willful blindness instruction--the defendant
asserted a lack of guilty knowledge. Abbas also satisfied the second
requirement because the evidence supported an inference of deliberate
ignorance. Ali testified that Abbas knew that the suitcase contained
heroin and that he actively participated in the Baltimore transaction
and negotiations. Taped recordings confirm that Abbas discussed
future drug transactions, the difficulty in dealing with small bills, and
the difference between liquid and powdered forms of drugs. Thus, we
conclude that there was sufficient evidence from which the jury could
find that Abbas consciously closed his eyes to the fact he was
involved in an obvious drug transaction. And the district court did not
err in giving the jury a willful blindness instruction.
B.
Abbas also contends that the trial judge should have given an
instruction defining reasonable doubt. We find that the district court
properly denied Abbas' request for such an instruction. In fact, we
have repeatedly cautioned trial courts in attempting to define reason-
able doubt. See United States v. Ricks, 882 F.2d 885, 894 (4th Cir.
1989), cert. denied, 493 U.S. 1047 (1990); United States v.
Headspeth, 852 F.2d 753, 755 (4th Cir. 1988) (stating that this circuit
disapproves of judicial efforts to define reasonable doubt absent spe-
cific jury request); United States v. Woods, 812 F.2d 1483, 1487 (4th
Cir. 1987) (holding trial judge correct in refusing to elaborate on rea-
sonable doubt definition); Murphy v. Holland, 776 F.2d 470, 475 (4th
Cir. 1985) (holding that courts should avoid defining reasonable
10
doubt unless specifically requested to do so by the jury) remanded for
consideration on other grounds, 475 U.S. 1138 (1986). Hence,
Abbas' argument is meritless.
VI.
For the foregoing reasons, Abbas' sentence as imposed by the dis-
trict court is
AFFIRMED.
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