UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SYED ABBAS, a/k/a Qasim, Defendant-Appellant.
No. 94-5621
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: January 31, 1996
PUBLISHED. Argued: December 7, 1995. Before RUSSELL, WILKINSON, and NIEMEYER, Circuit Judges.
Affirmed by published opinion. Judge Russell wrote the opinion, in
COUNSEL
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
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 оf 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 negotiations, 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 оf 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
II.
We first review Abbas’ contention that the district court‘s denial of his motion to reopen his case in order to сall a co-defendant who had 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.
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 following morning.
Abbas proffered Khan would testify that on the day of the Baltimore 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 counsеl, repeatedly asserted his Fifth Amendment privilege against self-incrimination. Subsequently, the district court entertained motions throughout the morning regarding Khan‘s proffered testimony, 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 thаt 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 Abbаs’ 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
To prevail under Peay, Abbas must demonstrate each prong of the test. If Abbas fails to substantiate even one prong of the test, due deference 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 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, anothеr 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
As to the third prong of the test, we conclude that even if the district 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.
We therefore hold that the district court did not abuse its discretion in prohibiting Abbas from reopening his case and introducing inadmissible 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 Government‘s refusal to grant immunity was a deliberate attempt to distort the judicial fact-finding process. We reject Abbas’ contention as meritless.
We have held that the district court is without the authority to confer 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
In the instant case, we find no evidence of misconduct or overreaching 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 process. 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. Granting Khan immunity would be an insult to the Pakistani authorities.
Furthermore, Khan was a significant figure in the illegal heroin trade. It would be preposterous to grant immunity to an orchestrator of international 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 оf impending prosecution--amounted to prosecutorial misconduct. The district court therefore, lacked the necessary authority to compel the Government 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 аdmission of the DEA chemist‘s expert test results, which relied on “standards” determined by other chemists, violated his Sixth Amendment right to confront witnesses because he was not given an opportunity 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 (1987); accord United States v. Simmons, 773 F.2d 1455, 1459-60 (4th Cir. 1985) (finding the admission of an ATF firearms form under the general 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 seemingly 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 neсessarily violate 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 had access to the same sources of information through subpoena or otherwise.
Reardon, 806 F.2d at 43 (emphasis added).
In the instant case, the DEA chemist conducted the following comparison 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 tо 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
Abbas seeks application of a rule that would make it nearly impossible 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
The facts or data in the particular case upon which an expert bases an opinion or inference may be those pеrceived by or 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 еxpense and delay. From the evidence of record, we find that the DEA chemist testified that his use of standards 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
V.
Finally, we turn to Abbas’ contention that the district court erred in its jury instruction. The decision of whether to give a jury instruction and the content of an instruction are reviewed for abuse of discretion. 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 reasonable 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 standard 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-rance.” United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir.), cert. denied, 114 S. Ct. 204 (1993). Moreover, where the evidence presentеd 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.
Abbas’ defense centered on his claim that he thought the transaction 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 concludе 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, wе have repeatedly cautioned trial courts in attempting to define reasonable 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 specific jury request); United States v. Woods, 812 F.2d 1483, 1487 (4th Cir. 1987) (holding trial judge correct in refusing to elaborate on reasonable doubt definition); Murphy v. Holland, 776 F.2d 470, 475 (4th Cir. 1985) (holding that courts should avoid defining reasonable doubt unless spеcifically 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 district court is
AFFIRMED.