Appeal from a judgment of the United States District Court for the Eastern District of New York, Sifton, J., convicting Sayed Ali Qamar after a jury trial of conspiracy to import hashish. Qamar challenges the district court's admission of testimony of death threats attributed to him, contending that the prejudicial effect of the threats outweighed their probative value. Affirmed.
Before Meskill and Cardamone, Circuit Judges, and Holden, District Judge*fn* .
Sayed Ali Qamar challenges a judgment entered after a jury trial in the United States District Court for the Eastern District of New York, Sifton, J., convicting him of one count of conspiracy to import hashish, 21 U.S.C. § 963 (1976). Qamar was acquitted on a second count, possession of hashish with intent to distribute, 21 U.S.C. § 841(a)(1) (1976); 18 U.S.C. § 2 (1976), and the jury failed to return a verdict, resulting in a mistrial, on a third count, importation of hashish, 21 U.S.C. §§ 952(a), 960(a)(1) (1976); 18 U.S.C. § 2 (1976). Qamar was sentenced to four years imprisonment. He is presently free on bail pending the disposition of this appeal. We affirm his conviction.
The sole issue on this appeal relates to the district court's admission into evidence of "death threat" testimony. We briefly recount the prosecution and defense cases to provide the background against which this testimony was proffered.
The government called four witnesses in its case in chief. Shamim Adil testified that he and Qamar began discussing the possibility of importing hashish from East Pakistan in 1976. Adil recalled that Qamar knew how to smuggle the contraband out of Pakistan, but had no way to bring it safely into the United States. Adil later discussed hashish importation with Lakhi Uttam, a business associate and the owner of Asia Imports Company in Manhattan. In 1978, Adil introduced Uttam to Qamar. According to Adil, Uttam told Qamar that he could get hashish safely through United States Customs. Adil, Qamar and Uttam thereupon agreed to import hashish by air, to sell it, and to divide the proceeds evenly.
Adil stated that in the spring or summer of 1978, Qamar left for Pakistan to arrange a shipment of hashish. Upon his return, Qamar told Adil that the shipment had left Pakistan and gave Adil the airway bill to pass on to Uttam. Qamar later told Adil that the shipment had been lost.
Uttam testified under a plea agreement with the government that he was engaged in the importation of goods from India. Uttam corroborated Adil's testimony and provided details of the scheme to import hashish. Uttam stated that he suggested a plan to conceal the contraband in cartons of T-shirts and told Qamar that by retrieving the shipments after the customs officers went off duty, the importer could take most of the cartons away, leaving just one of every ten or twenty behind for customs inspection the next day. By coding the cartons, the importer could be sure that the cartons left for inspection did not contain hashish.
Uttam further testified that after successfully importing a test shipment of ten cartons of T-shirts, two containing a total of fifteen to twenty pounds of hashish, and a larger shipment containing approximately 165 pounds of hashish, the parties attempted another 165 pound shipment. This time, however, customs officials intercepted the hashish. When Uttam first informed Qamar of the seizure, Qamar was very upset and did not believe Uttam. However, Qamar later confirmed the seizure.
According to Uttam, in June 1980 he and Qamar set out to import more hashish, this time concealing it within a cargo of rugs on the steamer Hellanic Valor. When the first shipment of rugs arrived, Uttam's trucker, Gurdip Hari, informed him that customs officials had opened it. Uttam rejected the delivery and informed Qamar of the customs inspection. Qamar accused Uttam of lying and unsuccessfully attempted to have the shipment delivered to other locations. Qamar contacted Uttam several times, finally coming to Uttam's office where he was later joined by two armed men.*fn1
Uttam testified that at the meeting in his office, Qamar asked what had happened to the hashish. Uttam told Qamar that it had been confiscated. Qamar's associates then pointed their guns at Uttam and his shipping clerk, Abraham Benzaquen, and continued to inquire into the whereabouts of the hashish. The men assaulted Uttam, telling him that "(t)his is your last chance" to explain the disappearance of the hashish. They then threatened to kill Uttam and his family, telling Uttam that they knew where he lived and where his daughter waited for a school bus. After Uttam persisted in asserting that the hashish had been seized, Qamar forced Uttam to sign an agreement to pay $50,000 per week until the $3 million allegedly lost in the disappearance of the hashish was fully paid.
Abraham Benzaquen corroborated portions of Uttam's testimony, most importantly the account of the meeting at which Qamar and his associates threatened Uttam. The government's fourth witness, Customs Inspector Frank Monroig, testified that on December 19, 1980 he and fellow inspectors seized a shipment of hashish concealed ...