Opposition Brief — Annabi v. United States

preme Court, U Ss oa

“HEN SD

JAN 29 1999

* JOSEPH F. SPANIOL, IP,

(s)

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;

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}

}

No. 87-905

In the Supreme Court of the Wnited States —

OCTOBER TERM, 1987

SAMI ANNABI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

J. DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the prosecution of petitioner violated the

Double Jeopardy Clause or petitioner’s prior agreement

pursuant to which petitioner pleaded guilty to a different

charge. x

2. Whether the district court erred in admitting the

testimony of an expert witness who interpreted intercepted

conversations.

3. Whether the evidence was sufficient to support peti-

tioner’s conviction on the conspiracy count.

4. Whether the district court erred in denying peti-

tioner’s motion to sever his trial from that of his co-

defendants.

5. Whether petitioner received effective assistance of

counsel.

(I)

BEST AVAIL

nc ESA

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Garrett v. United States, 471 U.S. 773 (1985) ........... y

Heike v. United States, 217 U.S. 423 (1910) ........... ; 5

John Doe Corp. v. United States, 714 F.2d 604 (6th Cir.

GU 8 ere 5

Opper v. United States, 348 U.S. 84 (1954) ............. 14-15

Pinkerton v. United States, 328 U.S. 640 (1946) ......... y

Salem v. United States Lines Co., 370 U.S. 31 (1962) .... 11

Scott v. United States, 436 U.S. 128 (1978) ............. 11

Strickland v. Washington, 466 U.S. 668 (1984) ..... Pee & &,

United States v. Abbamonte, 759 F.2d 1065 (2d Cir.

ee ee a eb bea awdae eee ee 5

United States v. Alessi, 544 F.2d 1139 (2d Cir.), cert.

SR) 5

United States v. Alfonso, 552 F.2d 605 (Sth Cir.), cert.

EE Ss gs 12

United States v. Bari, 750 F.2d 1169 (2d Cir. 1984), cert.

ee 15

United States v. Bird, 709 F.2d 388 (Sth Cir. 1983) ...... 5

United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir.

1972), cert. denied, 410 U.S. 927 (1973) .............. 11-12

United States v. Brizendine, 659 F.2d 215 (D.C. Cir.

TR ag oe tog 2 PEMA CEES Na ar 5

United States v. Dickey, 736 F.2d 571 (10th Cir. 1984),

eS ER SOP.) 12

United States v. Dounias, 777 F.2d 346 (7th Cir. 1985) ... 15

United States v. Eggert, 624 F.2d 973 (10th Cir. 1980) .... 5

(III)

IBLE COPY

IV

Cases — Continued: Page

United States v. Ginsberg, 758 F.2d 823 (2d Cir. 1985) ... 11

United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.), cert.

” rs TEE ss 0 hn cpa evdodewavinssawase 12

United States v. Hajal, 555 F.2d 558 (6th Cir.), cert.

GN re ees TEE 5 nb ch cuneua cakccchesesss 11

United States v. Lane, 474 U.S. 438 (1986) ............. 15

United States v. MacDonald, 435 U.S. 850 (1978) ....... 5

United States v. Rosario, 677 F.2d 614 (7th Cir.), cert.

GO, Ge UF ae. Te CE og kn caked dacsnncausanns 5

United States v. Solano, 605 F.2d 1141 (9th Cir. 1979),

cert. denied, 444 U.S. 1020 (1980) .................. 5

United States v. Teitler, 802 F.2d 606 (2d Cir. 1986) ..... 12

United States v. Terry, 702 F.2d 299 (2d Cir.), cert.

Fe I | ree re rer rer re ree lt

United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986) ... 12

Constitution, statutes and rule:

U.S. Const. Amend V. (Double Jeopardy Clause) ....... 5,

Op i cs 55-856. 5.0.0d a News SdGs 6 dame ekes eos

ER ae ee opens bhnsaseaddwaden ees canaes

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CON NY NY WY NY NY CO

Miscellaneous:

1 C. Wright, Federal Practice and Procedure (2d ed.

SN oh saa yu wees po aa ee Ce wae ke den Sera ekr hk 15

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-905

SAMI ANNABI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A80)

is reported at 824 F.2d 1294. An earlier opinion of the

court of appeals (Pet. App. A81-A86) is reported at 771

F.2d 670.

JURISDICTION

The judgment of the court of appeals was entered on

June 29, 1987. A petition for rehearing was denied on

August 18, 1987 (Pet. App. A87). On October 13, 1987,

Justice Marshall granted an extension of the time within

which to petition for a writ of certiorari to and including

November 16, 1987. The petition for a writ of certiorari

was filed on that date. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of New York, petitioner was con-

victed of conspiring to distribute heroin, in violation of 21

U.S.C; 846 (Count 1); engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. 848 (Count 3); five

substantive counts involving distribution of heroin and

possession of heroin with intent to distribute it, all in

violation of 21 U.S.C. 841 (Counts 7 and 11-14); two

counts of using a telephone to facilitate a narcotics trans-

action, in violation of 21 U.S.C. 843(b) (Counts 22 and

23); and one count of illegally receiving a firearm, in viola-

tion of 18 U.S.C. 922(h) (Count 25).' He was sentenced to

concurrent 25-year terms of imprisonment on each of

Counts 1, 3, 7, and 11-14; shorter concurrent terms of im-

prisonment on each of Counts 22, 23, and 25; and concur-

rent six-year special parole terms on each of Counts 7 and

11-14. He was also assessed fines totaling $185,000.? The

court of appeals reversed the convictions and sentences on

Counts 22 and 23 (thus reducing the total fine to $145,000)

but otherwise affirmed.

1. Petitioner’s convictions resulted from a large-scale

conspiracy to import heroin from the Middle East and

distribute it in United States. The conspiracy originated in

mid-1982, when petitioner obtained financing for a trip to

the Middle East to import heroin. Funds for that trip came

' Petiener was acquitted at trial on two additional counts of using

a telephowe to facilitate a narcotics transaction (Counts 20 and 21).

One additional count charging petitioner with carrying a firearm dur-

ing a crime of violence (Count 26) was dismissed.

? Petitioner’s co-defendants were convicted of numerous offenses.

An appendix to the opinion of the court of appeals sets forth the con-

victions of all the appellants in that court (Pet. App. A78-A80).

anneal

3

from Basil Cannata, an accomplice who testified for the

government at petitioner’s trial, and from petitioner’s co-

defendant Anthony P. Restaino. On that and subsequent

trips, petitioner imported or arranged to import several

kilograms of heroin. Pet. App. A9.

Petitioner and his brother, Nedam Annabi, were ar-

rested at Kennedy Airport in New York on November 23,

1982, while smuggling approximately four kilograms of

heroin into the United States. Both Annabis were then

charged with conspiracy to import heroin, in violation of

21 U.S.C. 963; importation of heroin, in violation of 21

U.S.C. 952(a); and possession of heroin with intent to

distribute it, in violation of 21 U.S.C. 841(a)(1). Petitioner

subsequently pleaded guilty to the importation count. At

the same time, in return for petitioner’s agreement to

cooperate with the Drug Enforcement Administration

(DEA), the United States Attorney for the Eastern District

of New York agreed to dismiss the remaining two counts

against petitioner and his brother. As a result of that un-

written agreement and petitioner’s subsequent testimony

for the government in three prosecutions in the Southern

District of New York, petitioner’s sentence of incarcera-

tion on the importation count was reduced to probation.

Pet. App. A9-Al10.

Despite his arrest, conviction, and agreement to

cooperate with the government, petitioner continued to

traffic in heroin. Following his arrest and conviction,

however, he delegated many operational tasks to other

members of the conspiracy. Shortly after his arrest in

1982, petitioner sent his wife, Maysoun Annabi, and

another woman to Syria to maintain relations with Abu

Hamadah, one of his heroin suppliers (Tr. 1661-1663).

During the trip Maysoun Annabi also met with another of

petitioner’s suppliers, co-defendant Hassan Maktabi (Tr.

1873-1874). Petitioner sent his brother-in-law, Hani Fraih,

4

to deliver cash to Abu Hamadah in Syria (Tr. 836-839,

1455-1462). Petitioner also enlisted Jordanian military

personnel serving as sky marshals on Royal Jordanian

Airlines flights to serve as drug couriers (Tr. 647-660,

741-743, 4423-4425, 4426). Co-defendants Elias Abdouch,

Antwan Abdouch, and Angeel Abdouch, among others,

acted as couriers in petitioner’s operation (Tr. 4002).

Petitioner also had dealings with a third supplier, Sirop

Siropian, who was indicted but never apprehended. Siro-

pian came to petitioner’s home to test a sample of heroin

that Siropian had smuggled into the country (Tr. 758-762).

Later, after Siropian was arrested in Boston on another

offense, petitioner helped him obtain a false passport and

leave the country (Tr. 4480-4483).

At some point after entering his guilty plea in the

Eastern District of New York, petitioner himself became

actively involved in the distribution of heroin. He had

numerous direct dealings with co-conspirator Murad

Nersesian, including a sale of 1300 grams of heroin. He

worked with co-defendants Peter Pazienza and Dennis

Meade in attempting to find additional customers for the

imported heroin. He made 15 to 20 direct sales of heroin

to Jorge Luis Audinot, who later testified on behalf of the

government. Tr. 4178, 4848-4855, 4729. The scheme

ended on December 18, 1984, when most of the defend-

ants, including petitioner, were arrested (Pet. App. All).

2. After he was indicted in the Southern District of

New York, petitioner moved to dismiss the counts of the

indictment charging him with conspiring to distribute

heroin and conducting a continuing criminal enterprise

(Counts | and 3). He argued that his indictment on those

counts violated the unwritten plea agreement he had

reached with the United States Attorney for the Eastern

District of New York following his 1982 indictment in that

5

district. After a hearing, the district court rejected that

contention.

On interlocutory appeal, the court of appeals affirmed

(Pet. App. A81-A86).3 The court held that a plea agree-

ment binds only the United States Attorney who enters in-

to that agreement, not the United States Attorney for a

different district. Thus, in the absence of evidence that

“the agreement contemplates a broader restriction,” the

court held that petitioner’s prosecution in the Southern

District of New York did not violate the plea agreement

entered into in the Eastern District (id. at A85). The court

of appeals also rejected petitioner’s claim that his current

prosecution violated the Double Jeopardy Clause. It held

that petitioner and his brother were never put in jeopardy

on the 1982 indictment (ibid.). The court added, however,

that petitioner would have no double jeopardy claim even

if he had been put in jeopardy on the earlier charges,

because the counts of the current indictment charging him

with conspiracy and engaging in a continuing criminal

} The court of appeals followed its own prior decision in United

States v. Abbamonte, 759 F.2d 1065, 1070-1071 (2d Cir. 1985), in per-

mitting the interlocutory appeal from denial of the motion to dismiss

based on the prior plea agreement (Pet. App. A84). No other circuit

permits such an interlocutory appeal. See John Doe Corp. v. United

States, 714 F.2d 604, 606 (6th Cir. 1983); United States v. Bird, 709

F.2d 388, 392 (Sth Cir. 1983); United States v. Rosario, 677 F.2d 614,

615 n.4 (7th Cir.), cert. denied, 459 U.S. 867 (1982); United States v.

Brizendine, 659 F.2d 215 (D.C. Cir. 1981); United States v. Eggert,

624 F.2d 973, 975-976 (10th Cir. 1980); United States v. Solano, 605

F.2d 1141, 1142-1143 (9th Cir. 1979), cert. denied, 444 U.S. 1020

(1980); see also Heike v. United States, 217 U.S. 423, 430-433 (1910);

United States v. MacDonald, 435 U.S. 850, 860 & n.7 (1978); United

States v. Alessi, 544 F.2d 1139, 1143-1152 (2d Cir.) (Friendly, J.)

(questioning Second Circuit rule allowing interlocutory appeal), cert.

denied, 429 U.S. 960 (1976).

6

enterprise covered conduct extending two years beyond

the period covered by the dismissed charges (ibid.). ~

3. At trial, the government introduced testimony from

three wiretaps. Two of the wiretaps were placed on the

telephones of individuals who were not defendants in this

proceeding, and none of the defendants was a party to any

of the conversations intercepted on those two wiretaps.

The third wiretap was placed on petitioner’s telephone.

Pet. App. Al8, A20. At the close of its case-in-chief, the

government offered the testimony of DEA Agent John

Nolan. Agent Nolan had 15 years’ experience, had par-

ticipated in 125 wiretap investigations, and had qualified

on three prior occasions as an expert on the use of codes

by narcotics traffickers (id. at A23-A24). Agent Nolan

testified about the terms of speech that narcotics dealers

commonly use in their conversations (Tr. 6362-6365).

Nolan also testified that certain words or phrases in the

conversations intercepted in this case were narcotics-

related (Tr. 6375-6513). In accordance with a ruling of the

district court, however, Nolan limited his testimony on

direct examination to the question whether a conversation

was “narcotics-related” as opposed to “heroin-related” or

“cocaine-related,” unless some intrinsic evidence, such as

the prices mentioned by the parties to the conversation,

provided a basis to infer that the conversation related to

heroin (Pet. App. A24).

On cross-examination, defense counsel asked Nolan to

identify whether specific conversations referred to heroin

or cocaine. In response to those inquiries, Agent Nolan

stated his opinion that certain of the conversations related

specifically to heroin. On the third day of Nolan’s

testimony, the district court intervened to limit Nolan’s

testimony to the question whether a given conversation

was “narcotics-related.” In addition, the district judge in-

structed the jury that it could consider Nolan’s testimony

7

only as it related to the use and interpretation of codes in

narcotics transactions, but not as it related to what drug

was involved. Pet. App. A24-A25.

4. In an extensive opinion, the court of appeals af-

firmed petitioner’s convictions for conspiracy, continuing

criminal enterprise, distribution and possession with intent

to distribute, and illegal receipt of a firearm (Pet. App.

A1-A80). First, the court rejected petitioner’s contention

that the evidence was insufficient to support the jury’s

finding that he was a party to a single conspiracy to

distribute heroin (id. at Al2-A14). The court specifically

held that evidence of acrimony among the conspirators did

not demonstrate that a conspiracy could not have existed

(id. at Al4).

The court also rejected petitioner’s claim that he had

been prejudiced by the district court’s refusal to sever his

trial from that of his co-conspirators because the evidence

against him was so strong that it led his co-defendants to

assume his guilt before the jury in order to dissociate

themselves from petitioner. Although the court

acknowledged that the district court had a continuing

obligation to grant a motion for severance if prejudice

arose during trial, it held that the record did not show

prejudice in petitioner’s case. Pet. App. Al4-A18.

The court of appeals further held that the district court

had not erred by admitting evidence gleaned from govern-

ment wiretaps (Pet. App. Al8-A23). In addition, the court

decided that petitioner had not been denied due process by

the trial court’s decision to allow Agent Nolan to testify as

an expert witness concerning the meaning of terms used by

petitioner and his co-conspirators in various intercepted

conversations. In this respect, the court of appeals noted

that the district court had carefully limited the testimony

of the agent and had instructed the jury that the agent’s ex-

pertise was limited to specific subjects. Jd. at A23-A27.

: 8

The court also reaffirmed its earlier conclusion that the

current prosecution did not violate petitioner’s rights

under the Double Jeopardy Clause or his prior plea agree-

ment (id. at AS1-A54). Finally, the court concluded that

petitioner had not been denied the effective assistance of

counsel (/d. at AS4-A58). The court observed that “[t]he

evidence against [petitioner] was overwhelming” (id. at

A57), and it quoted with approval the district court’s

observation, Outside the presence of the jury, that “there

was ‘more than sufficient evidence to convict him twelve

times over’ ” (id. at AS7=AS8)-

ARGUMENT

1. Petitioner presents two related claims arising out of

his 1982 indictment in the Eastern District of New York

(Pet. 21-28). First, he contends that his conviction in the

present case violates the Double Jeopardy Clause. Second,

he contends that the government secured his conviction in

this case by violating the plea agreement between peti-

tioner and the United States Attorney’s Office for the

Eastern District of New York. Both arguments are without

merit and were properly rejected by the court below. '

a. Petitioner contends that his indictment and convic-

tion for conspiring to distribute heroin and for engaging in

a continuing criminal enterprise in the present case violate

the Double Jeopardy Clause because the conspiracy that

supported those two charges embraced the scheme that

supported the 1982 indictment of petitioner and his

brother. The charges at issue in the 1982 indictment,

however, were different from the charges at issue in this

case (see Pet. App. A83-A84). Thus, no count in the pres-

ent indictment was subject to dismissal on res judicata or

double jeopardy grounds.

9

Under the 1982 indictment, petitioner was convicted of

one substantive count of importation of heroin. That con-

viction, however, did not give petitioner a valid double

jeopardy defense to a charge of conspiracy. Pinkerton v.

United States, 328 U.S. 640, 643-644 (1946). Nor, given

that petitioner continued his illegal activities after that

conviction, did it give him a valid double jeopardy defense

to a charge of operating a continuing criminal enterprise.

Garrett v. United States, 471 U.S. 773, 791-792 (1985).

Moreover, the two counts of the 1982 indictment that were

dismissed pursuant to petitioner’s plea agreement charged

petitioner with a substantive importation offense and an

importation conspiracy, in violation of 21 U.S.C. 952(a)

and 963. He was not charged with either of those offenses

in the later indictment; rather, in the present case peti-

tioner was charged with, among other things, substantive

distribution counts and a conspiracy to distribute. The

dismissal of the importation and importation conspiracy

counts in the 1982 indictment thus had no effect on any of

the charges in the present case.

b. Petitioner also maintains that the government

violated his prior unwritten plea agreement in two distinct

ways: by prosecuting him on Counts | and 3 of the present

indictment, and by making use of information that he

gave the government pursuant to his cooperation obliga-

tion under that plea agreement.

The government did not violate petitioner’s plea agree-

ment by bringing Counts | and 3 of the present indictment.

Nothing in the prior plea agreement barred the govern-

ment from bringing other charges against petitioner, par-

ticularly since petitioner resumed his illegal activities after

entering the plea agreement in the other case. Only if the

plea agreement gave petitioner a lifetime license to con-

tinue his illegal activities could that agreement be deemed

to preclude the bringing of the charges in this case. And

10 :

there is no evidence in the record to show that the United

States Attorney made any such extravagant promise.‘

Nor did the government make use of immunized com-

munications in any way that would justify the reversal of

petitioner’s convictions. Petitioner’s only specific allega-

tion that any such forbidden use occurred is that the

government used his statements to support an application

to place a wiretap on his telephone (Pet. App. A54; Pet.

23-24). Even assuming arguendo that that allegation is

both legally and factually well grounded, petitioner would

not be entitled to relief, for the court of appeals correctly

concluded that the wiretap application was based on

enough independent information to establish probable

cause (Pet. App. A21-A22, A54). Petitioner offers

nothing but assertion to challenge this conclusion. There is

accordingly no “immunity” issue in this case that warrants

review by this Court.

2. Petitioner also contends (Pet. 28-37) that the

district court improperly admitted conversations in-

tercepted by electronic surveillance and that the district

court erred by allowing Agent Nolan to testify as an expert

regarding the contents of the intercepted conversations.

4 For this reason, it is entirely immaterial whether the unwritten

plea agreement bound only the United States Attorney for the Eastern

District of New York, or the Southern District as well. There is ac-

cordingly no need for this Court to grant certiorari in this case in order

to decide whether “one U.S. Attorney can file charges against a de-

fendant following dismissal of the charges pursuant to a plea agree-

ment, even though it would breach the agreement if the charges were

filed by the U.S. Attorney who made the agreement” (Pet. 28).

5 Petitioner also asserts, almost entirely without supporting citation

or reasoning, that the wiretaps themselves “were of questionable

legality, unsupported by probable cause, procedurally deficient and

otherwise objectionable in various respects” (Pet. 30). Petitioner’s

only specific complaint is that government agents failed “to follow the

Se i Ned ie ic

11

More specifically, petitioner contends that Agent Nolan’s

testimony “answered the ultimate questions of fact and

usurped the jury’s function” (id. at 29). Federal Rule of

Evidence 704(a), however, explicitly provides that

“testimony in the form of an opinion or inference other-

wise admissible is not objectionable because it embraces

an ultimate issue to be decided by the trier of fact.”

Moreover, a district court’s determination to admit expert

testimony should stand unless that determination is

manifestly erroneous. Salem v. United States Lines Co.,

370 U.S. 31, 35 (1962). The operations of drug dealers are

a proper subject for expert testimony. United States v.

Ginsberg, 758 F.2d 823, 830 (2d Cir. 1985); United States

Vv. Hajal, 555 F.2d 558, 568 (6th Cir.), cert. denied, 434

U.S. 849 (1977). Furthermore, the courts of appeals have

long approved expert testimony on the use of code words

in narcotics transactions. See, e.g., United States v.

minimization requirements of 18 U.S.C. section 2518(5)” (Pet. 30).

That challenge to the admission of the wiretaps, however, was lost

when petitioner failed to raise it in a timely fashion in the trial court,

waiting until after trial to make the argument for the first time (see

Pet. App. A22). In any event, the challenge is without merit. The

court of appeals considered petitioner’s minimization challenge in

light of the factors set forth in Scott v. United States, 436 U.S. 128,

140-141 (1978), and concluded that the government surveillance

agents had acted reasonably. The court reasoned that “[t}he instant

case involved factors such as the presence of ambiguous or coded

language, a conspiracy thought to be widespread, and the faci that the

phone tapped was located in the residence of a person thought to be

the head of a major drug ring” (Pet. App. A23). On that basis, the

court declined to conclude that “in monitoring the intercepted conver-

sations, the investigators did not ‘observe reasonable safeguards

against excessive intrusion’ ” (ibid. (quoting United States v. Terry,

702 F.2d 299, 312 (2d Cir.), cert. denied, 461 U.S. 931 (1983))). Peti-

tioner has not pointed to any reason to disturb that or any other aspect

of the lower courts’ rulings.

12

Borrone-Iglar, 468 F.2d 419, 421 & n.4 (2d Cir. 1972),

cert. denied, 410 U.S. 927 (1973); see also United States v.

Alfonso, 552 F.2d 605, 618 (Sth Cir.) (expert testimony in-

terpreting gambling jargon admissible), cert. denied, 434

U.S. 857 (1977). Accordingly, the district court did not im-

properly admit Agent Nolan’s testimony.

3. Petitioner also contends that the evidence fails to

support the jury’s conclusion that petitioner was a member

of the single conspiracy charged in Count 1| (Pet. 38-53).

In support of this contention, petitioner enlists the reversal

by the court of appeals of two of his convictions for using

a telephone to facilitate a narcotics transaction; an

asserted lack of evidence showing the involvement of peti-

tioner’s brother Nedam Annabi in the conspiracy; the

diverse nationalities of the conspirators; asserted doubts

as to the credibility of some of the government’s witnesses;

evidence of disagreements among the conspirators; and

the fact that the conspirators occasionally discussed sub-

jects other than narcotics transactions during the course of

telephone conversations intercepted by the government.

Taken together, petitioner contends, these circumstances

fatally undercut the jury’s verdict on the conspiracy count.

Petitioner does not contend that the jury was improper-

ly instructed on the conspiracy count, and it is well

established that the question whether the proof shows a

single conspiracy or multiple conspiracies is a question of

fact for a properly instructed jury. See, e.g., United States

v. Teitler, 802 F.2d 606, 616 (2d Cir. 1986); United States

v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986); United

States v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984), cert.

denied, 469 U.S. 1188 (1985); United States v. Grunsfeld,

558 F.2d 1231, 1238 (6th Cir.), cert. denied, 434 U.S. 872

(1977). In this case, the evidence, when viewed in the light

most favorable to the government, amply supports the

| :

jury’s conclusion that petitioner was a party to the single

’ conspiracy charged in the indictment.

Specifically, the government presented evidence show-

‘ ing that petitioner coordinated the effort to import heroin

from the Middle East and distribute it in this country (see

Pet. App. A8, Al0). The evidence established that peti-

tioner, together with Basil Cannata and Anthony P. Res-

taino, obtained heroin from three suppliers in the Middle

East, and that each supplier was aware that the others

were also supplying the conspiracy (/d. at A10). Petitioner

and his core confederates employed family members, in-

cluding petitioner’s wife (whose intercepted conversations

show a substantial knowledge of and involvement in the

conspiratorial activities), petitioner’s brothers-in-law

(Hani Fraih and Ayman S. Rabadi), and Cannata’s

girlfriend (Mary “Chicky” D’Agostino), to ferry money

and drugs to suppliers and customers. In addition, the

conspirators used a series of drug couriers, including the

Abdouches (Angeel, her ex-husband Elias, and their son

Antwan) to transport the heroin (/d. at A10-A11).

The government’s evidence further showed that the

same individuals who were involved in obtaining supplies

of heroin for petitioner also were involved in its sale and

distribution (Pet. App. Ali). For example, Cannata was

involved in numerous drug transactions, including receiv-

ing drugs from the Jordanian military personnel and sell-

ing or attempting to sell drugs to co-conspirator Ratfaela

“Lydia” Soto, Saverio Schifano, two individuals identified

only as “Frankie” and “Ivan,” and Jorge Audinot. May-

soun Annabi was involved in the sales to “Frankie” and

“Ivan” and Audinot.

The government’s evidence also supported the inference

that customers and resuppliers such as Nersesian, Pazien-

za, and Meade, who obtained heroin from the core group,

oir A Lame meni eee

al

14

were aware that other associates of the conspirators were

also reselling heroin. For example, Meade assisted many

of the conspiracy’s sales efforts; Pazienza was aware of

problems petitioner was having collecting payment from

other customers; and Meade and Pazienza were aware of

each other’s attempts to find new customers for petitioner.

As the court of appeals held, “[t]he jury reasonably

could have inferred from the evidence that there existed

over a period of time a single conspiracy to import and

distribute heroin consisting of core members who organ-

ized and oversaw the importation and distribution, family

assistants, interconnected suppliers in the Middle East,

couriers who actually transported the heroin, and local

redistributors and customers who purchased quantities of

heroin” (Pet. App. Al3). Even if petitioner’s challenges to

the evidence regarding peripheral aspects of the conspiracy

had merit, they would not undermine the conclusion of the

court of appeals as to the sufficiency of the evidence to

support the jury’s verdict.

4. Petitioner further contends that the district court

erred when it failed to sever his trial from that of his co-

conspirators. More specifically, he maintains that by mak-

ing him the “centerpiece” of its conspiracy prosecution,

the government forced petitioner’s co-defendants to

assume petitioner’s guilt before the jury in order to

distance themselves from the conspiracy (Pet. 54-58). Asa

result, petitioner contends, he was subjected to increasing

prejudice as the trial progressed, and the district court

therefore should have severed his trial from that of his co-

defendants at some point in the proceedings.

To prevail in challenging the district court’s ruling on a

motion to sever, petitioner must show that the district

court abused its discretion (see, e.g., Opper v. United

renin ite Na

15

States, 348 U.S. 84, 95 (1954)), and that as a result he suf-

fered substantial prejudice. United States v. Lane, 474

U.S. 438, 449 (1986); United States v. Dounias, 777 F.2d

346, 350 (7th Cir. 1985); United States v. Bari, 750 F.2d

1169, 1177 (2d Cir. 1984), cert. denied, 472 U.S. 1019

(1985); 1 C. Wright, Federal Practice and Procedure

§ 227, at 854 & nn.2 & 3 (2d ed. 1982) (collecting cases). In

this case, petitioner has not shown that he suffered any

substantial prejudice.

The court of appeals “carefully reviewed” each of the in-

stances that petitioner cited to support his claim of preju-

dice and found that petitioner’s argument had no factual

support (Pet. App. Al7-A18). First, the court noted that

most of the remarks cited by petitioner were made outside

of the presence of the jury (/d. at A17). In addition, the

court observed that other allegedly prejudicial remarks did

not mention petitioner (id. at Al7-A18). For example,

petitioner contends that counsel for other defendants

assumed petitioner’s guilt during their opening statements.

Yet, as the court of appeals found, the statements about

which petitioner complains alluded only to the strength of

the evidence showing a conspiracy and not to petitioner’s

role in the conspiracy. Similarly, petitioner’s argument

_ that he was prejudiced by the introduction of evidence

showing heroin activity by co-defendants “who were clear-

ly not acting in conspiracy with petitioner” (Pet. 58) sim-

ply restates petitioner’s assertion—rejected by the

jury—that the evidence did not establish a single con-

spiracy in this case.

5. Petitioner’s final claim is that he did not receive the

effective assistance of counsel. He cites his trial counsel’s

failure to make an opening statement, his failure to

16

challenge the government’s translations of intercepted

conversations in Arabic, his failure to obtain full

discovery from the government regarding petitioner’s

prior plea agreement, and — more generally — his failure to

develop petitioner’s defenses fully (Pet. 59-61). Petitioner

contends that counsel’s alleged errors and omissions

undermined the reliability of the proceeding, and thus

failed the second prong of the test this Court laid down in

Strickland v. Washington, 466 U.S. 668 (1984).

The court of appeals considered those and other

asserted instances of unprofessional conduct by

petitioner’s trial counsel and concluded that they fell far

short of establishing ineffective assistance of counsel

under the Strickland test (Pet. App. A5S4-A58). With

regard to counsel’s failure to make a opening statement,

the court held that trial counsel’s decision to waive open-

ing statement “is ordinarily a matter of trial tactics” that

allows counsel to assess the government’s evidence without

committing the defense to a particular strategy (id. at

AS55).

With regard to counsel’s alleged failure to challenge the

government’s translations of the tape-recorded conversa-

tions, petitioner does not state that any of those transla-

tions were wrong, and in fact he does not even directly

assert that his counsel failed to check their accuracy. His

only assertion is that no effort “to carefully examine and

translate wiretap recordings appears to have been made”

(Pet. 61). Presumably, if the government’s translations

had been inaccurate, petitioner could have advised his

counsel of that fact.

Similarly, with regard to the facts pertaining to peti-

tioner’s prior cooperation with the government,

presumably petitioner was in the best position to know

what he did in the course of his cooperation; it is unclear

why his lawyer should be faulted for not conducting

17

“discovery” on that issue. In any event, as the court of ap-

peals observed (Pet. App. A57), counsel filed several mo-

tions on petitioner’s behalf relating to his cooperation with

the government and “vigorously sought to preclude certain

tape recordings” as violative of petitioner’s cooperation

agreement with the government.

With regard to the general assertion that counsel did not

press petitioner’s defenses with sufficient vigor, petitioner

presented those defenses in the course of his own

testimony, but the jury found them unpersuasive. In light

of the overwhelming strength of the evidence against peti-

tioner, it is not surprising that the jury found him uncon-

vincing. And in light of the strength of the government’s

case, the court of appeals was correct in concluding (Pet.

App. A57) that, even if petitioner’s attorney’s perform-

ance was in some respects inadequate, it could 1 not have af-

fected the outcome of the trial.

Although petitioner reasserts these same arguments

' before this Court, he points to no reason to disturb the en-

tirely unremarkable holding of the court of appeals. The

court below properly applied the Strickland test. Peti-

tioner complains that the test should have produced a dif-

ferent outcome in this case, but he dees not identify any

specific respect in which the court of appeals erred.

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

J. DOUGLAS WILSON

Attorney

JANUARY 1988

vr US GOVERNMENT PRINTING OFFICE: 1968— 202-037/60261

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