Defendant Jan Dil Khan appeals from a judgment of the United States District Court for the Southern District of New York, Stewart, Judge, entered on June 26, 1985 after a jury trial, convicting him of various conspiracy and substantive offenses related to he importation, possession, and distribution of heroin. Khan contends that (1) the district court should have dismissed seven of he counts against him because of prosecutorial vindictiveness, (2) there was insufficient evidence to support those same seven counts, and (3) the district court erred by admitting certain expert testimony. Affirmed.
Before: FRIENDLY,*fn* MANSFIELD, and PRATT, Circuit Judges.
This case, which arises out of a scheme to smuggle heroin into our country, presents only one question deserving more than summary discussion: Should the district court have dismissed certain counts charged against the defendant in the superseding indictment on the ground that they were added only as a result of "prosecutorial vindictiveness" in response to defendant's rejection of plea discussions and his request for a jury trial after trial on the original indictment resulted in a hung jury? Finding no reason to invoke a presumption of vindictiveness, no evidence of actual vindictiveness, and no merit to defendant's other claims, we affirm the convictions.
In January 1984 the defendant, Jan Dil Khan, asked an acquaintance, Abdul Qadir Mazari, for the names of individuals in the United States or Europe who might want to buy heroin, since Khan could arrange delivery. At the time, both men lived in Pakistan. After falsely telling Khan that he had buyers in the west, Mazari informed a United States Drug Enforcement Agency (DEA) agent in Pakistan that Khan wanted an outlet for heroin in the United States.
Working in cooperation with DEA agents, Mazari, on two separate occasions, arranged for Khan's United States associates to sell to an undercover DEA agent heroin that Khan had previously secreted in New Jersey. Following these two sales, Khan and Mazari traveled to the United States in order to straighten out certain misunderstandings that had arisen between Khan and his associates here, and to meet with Mazari's buyers.
Khan, Mazari, and the undercover DEA agent, posing as a buyer, met in New York on April 9, 1984, when in response to the agent's query, Khan stated that he could supply the agent with 200 kilograms of top grade heroin. Two days later, when the three met again, Khan said that he expected two heroin couriers to arrive from Pakistan over the weekend and that he would have samples available the following week. Shortly thereafter, however, Khan learned that he couriers had been arrested - one in Pakistan and one in England. When Khan, Mazari, and the agent met for the third time, on April 15, Khan told the agent the expected couriers had been arrested. He requested the agent's patience and assured him that a sample would be forthcoming.
On April 23 Khan told Mazari that he intended to return to Pakistan, but wanted Mazari to remain in New York and receive shipments of heroin to pass on to the buyer. Mazari agreed. Two days later the three met for a final time. Khan told the agent that he would try to get him "first quality" heroin in "quantities of 15, 20 and even 25" kilos once they got the "business started". At the end of the meeting, Khan was arrested.
A four-count indictment charged Khan and an associate with one count of conspiracy to distribute heroin and three counts of distributing heroin. The associate pled guilty to two of the counts. Khan's trial ended on August 28, 1984, in a mistrial caused by a hung jury.
After the mistrial, the Assistant United States Attorney (AUSA) then in charge of the prosecution discussed with Khan's attorney the possibility of Khan's pleading guilty to a violation of 21 U.S.C. § 843(b) (using a telephone in connection with a drug transaction). Khan refused, however, and chose instead to have a retrial. Another AUSA took charge of the case, and he, too, discussed the possibility of a guilty plea, specifically nothing that a superseding indictment might be returned prior to retrial; but Khan again refused to plead guilty.
In the latter half of October, one of Khan's associates agreed to cooperate more extensively with the government and, according to the government, provided new evidence of other crimes properly chargeable against Khan. Khan contends that this "new" evidence had been available to the government before the first trial.
On October 26, 1984, a grand jury returned the instant 16-count superseding indictment charging Khan and several other defendants with conspiracy to import heroin (count 1), conspiracy to possess and distribute heroin (count 2), importation of heroin (count 3), various distributions of heroin (counts 4, 5, 7, 9, 11, 12, and 13), and attempted importation of heroin (count 16), together with five other violations (counts 6, 8, 10, 14, and 15) which were not submitted to the jury and are not relevant to this opinion. Only then did Khan express an interest in pleading to a lesser charge, but the AUSA informed defense counsel that such a plea was no longer acceptable.
Khan's retrial commenced on February 4, 1985, and ended on February 13, with a guilty verdicts against Khan on each of the submitted counts. The district court sentenced Khan to four year's imprisonment, followed by five years of probation and a five-year special parole term.
On appeal Khan contends that: (1) the district court should have dismissed count 1, 3, 4, 5, 7, 9 and 16 of the superseding indictment because of "prosecutorial vindictiveness"; (2) the evidence on those seven counts was insufficient to support the convictions; and, (3) the district court erred by permitting a DEA agent to testify ...