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
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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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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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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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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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.
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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.
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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.
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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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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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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.
-12- 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
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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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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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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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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.
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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.
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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
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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
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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.
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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
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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.
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