Appeal from a judgment of the District Court for the Eastern District of New York (I. Leo Glasser, Judge) challenging a conviction for narcotics violations, 21 U.S.C. §§ 841(a)(1), 846, 952, 960. Affirmed.
Feinberg, Chief Judge, and Friendly and Newman, Circuit Judges.
Yagih Aboumoussallem ("Yagih") appeals from a judgment of conviction entered on April 14, 1983, in the District Court for the Eastern District of New York (I. Leo Glasser, Judge) following a jury verdict finding him guilty of importing and distributing heroin hydrochloride, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 841(a)(1), and of conspiracy to do the same, 21 U.S.C. §§ 952 (a), 960(a)(1), and 846. Yagih was sentenced to concurrent four-year terms on each count, and to a ten-year special parole term. Yagih appeals from the judgment of conviction on three grounds: (i) that the federal prosecution, following his acquittal on identical charges in a state proceeding, violated the Fifth Amendment's guarantee against double jeopardy, (ii) that statements by an alleged co-conspirator were improperly admitted at trial, and (iii) that evidence of prior similar acts by alleged co-conspirators tending to exculpate Yagih were improperly excluded. We reject appellant's contentions and affirm the judgment of the District Court.
In April 1981, undercover agent Mark Gerbino of the Rochester police department, posing as an organized crime figure, purchased fourteen ounces of heroin from Nazih Aboumoussallem ("Nazih"), Yagih's cousin. Nazih identified Lebanon as the source of the heroin and told Gerbino that various family members based in Lebanon regularly transported drugs to the United States. Hoping to catch other participants in Nazih's drug smuggling scheme, Gerbino subsequently arranged for a more substantial purchase of heroin.
On August 17, 1981, Officer Gerbino and Nazih traveled to Kennedy Airport to await the arrival of Nazih's Lebanese "courier." Nazih informed Gerbino that his cousin Yagih would be transporting the heroin. Yagih, who would be wearing a blue T-shirt, was to deliver a black attache case containing heroin to whoever handed him a passport-size photograph of Yagih. Gerbino arranged for DEA Agent Silvestro, posing as a corrupt airline employee, to intercept Yagih as soon as he left the aircraft. As arranged, Yagih exchanged the attache case for his photograph.
Silvestro examined the attache case in a customs examination room. The contents of the case included a girdle, a shirt, Yagih's toiletries bag, two magazines, and a smuggler's vest containing 1,823 grams of 53.8% pure heroin. After reloading these items into the attache case, Silvestro met Yagih, Nazih, and Officer Gerbino at the Empire Airlines counter. The four boarded a flight to Rochester, the planned destination. On board, Nazih, Yagih, and Officer Gerbino sat together; DEA Agent Silvestro, with the attache case, sat by himself.
During the course of the flight Officer Gerbino posed a number of questions to Yagih. As Yagih spoke no English, and Gerbino no Arabic, Nazih acted as interpreter. In response to Gerbino's question regarding Yagih's journey from Lebanon, Nazih and Yagih both laughed as Yagih replied that the trip went fine but that at the Paris airport, while wearing the smuggler's vest, he requested directions from a French policeman. While speaking to Gerbino, Yagih moved his hands up and down his chest, indicating that he had worn the vest. In response to an inquiry as to the quality of the heroin, Yagih responded that it was so strong that when he and Pierre Aboumoussallem (Nazih's brother) packed the heroin into the vest, their noses bled. Again, Yagih's gestures corroborated Nazih's translation -- he moved his hands in a flowing manner in the area of his nose.
Upon arrival at the Rochester airport, the four men walked to Gerbino's automobile, located in the airport parking lot. Once inside the automobile, Silvestro asked to see the heroin. Yagih, at Nazih's instructions, opened the case and examined the vest. Yagih reported, through Nazih's translation, that the vest was intact. The undercover agents then sought to arrest Yagih and Nazih. Nazih resisted apprehension and was killed in a gun fight.
Yagih was indicted and tried under New York law on charges of criminal possession and criminal sale of a controlled substance in the first degree, N.Y. Penal Law §§ 20.00, 220.21, and 220.45 (McKinney 1975). Upon his acquittal by a jury in the state trial, Yagih was indicted for the federal offenses.
Yagih's defense at his trial on federal charges was that he was "duped" by his cousin Nazih. He testified that he had no knowledge that the attache case contained a smuggler's vest loaded with heroin. Yagih's version commences in June of 1981, when Nazih traveled to Lebanon. Yagih testified that, in the hope of securing medical treatment for his two deaf children, he accepted Nazih's suggestion that he make his first visit to the United States. Nazih offered to help Yagih obtain employment and medical assistance. At Nazih's request for a "souvenir" Yagih gave Nazih a passport-size photograph of himself.
Subsequently, as Yagih was about to board his flight from Beirut, Yagih was intercepted by Nazih's brother, Pierre. Pierre asked Yagih to deliver an attache case, which he said Nazih had mistakenly left in Lebanon, to a friend of Nazih's who would meet Yagih at Kennedy Airport. Pierre indicated that Nazih's friend would present Yagih with the passport-size photograph of himself he had given to Nazih. To facilitate identification, Yagih was to wear a blue T-shirt.
Yagih testified that he first opened the attache case just prior to landing in New York when, without inspecting its contents, he placed his toiletries and two magazines inside the case. Yagih testified that Nazih first informed him of the contraband cargo upon arrival in New York, when Nazih advised him that the case contained hashish and that Gerbino and Silvestro were affiliated with the Mafia. Yagih denied ever speaking with Officer Gerbino while en route to Rochester. He ...