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United States v. Detrich

decided: December 22, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT ERNEST DETRICH, AHMAD SHAH NUSRATY AND MOHAMMAD DAWOOD NUSRATY, DEFENDANTS, ROBERT ERNEST DETRICH, DEFENDANT-APPELLANT



Robert Detrich appeals from the March 4, 1988 judgment of the United States District Court for the Eastern District of New York (Dearie, J.) entered after a jury convicted him of importation of heroin into the United States, in violation of 21 U.S.C. § 952(a) (1982 & Supp. IV 1986).

Newman, Kearse and Cardamone, Circuit Judges.

Author: Cardamone

CARDAMONE, Circuit Judge:

On this appeal we consider whether certain statements were properly excluded as hearsay in the course of a criminal trial. The hearsay rule and its exceptions -- set forth in Article VIII of the Federal Rules of Evidence -- pose semantic subtleties for a trial court that must rule promptly, but which an appellate court may unhurriedly decipher. Although not always understood, the rule's redeeming virtue is that it embodies lessons learned from the past, yet retains sufficient flexibility for future development.

Appellant is Dr. Robert Ernest Detrich, a dentist from Harrisonburg, Virginia. On July 13, 1987 a United States Customs Inspector at Kennedy Airport in New York found five ounces of heroin concealed in the shoulderpads of a suit in Detrich's suitcase. He had just returned from Delhi, India and denied knowledge of the narcotic, claiming that the suit had been given to him by an acquaintance in India who wanted it delivered to a relative getting married in the United States.

Detrich appeals from the March 4, 1988 judgment of the United States District Court for the Eastern District of New York (Dearie, J.) entered on a jury verdict convicting him of importation of heroin, in violation of 21 U.S.C. § 952(a) (1982 & Supp. IV 1986).

I

Because the critical issue is whether certain statements excluded from evidence were hearsay, a brief review of the factual background is necessary to place that issue in proper perspective. In the early summer of 1987 George Hyde, a local merchant and patient, asked Detrich if he could borrow some money to help pay for a proposed retail buying trip to India. Appellant agreed to loan the money, and decided to accompany Hyde. Before departing, they went to Washington, D.C. to obtain passports and visas to enter India and Nepal. The two men then traveled to New York City where Hyde introduced Detrich to members of the Nusraty family, a group of Afghani business acquaintances. Hyde and Detrich stayed with the Nusratys in Queens, New York and purchased their airline tickets to India at a travel agency with help from Abdul Nusraty, who negotiated the price.

A party consisting of Detrich, Hyde, Abdul Nusraty, and Ahmad Shah Nusraty (Shah) left for India on July 2, 1987. Upon arrival, appellant met other members of the Nusraty family, went on shopping trips with Hyde, and swam in the hotel pool. Detrich did little else; he testified that recently publicized terrorist activities in India had cooled his interest in visiting the traditional tourist sites. Becoming bored with this routine, he decided to return to the United States earlier than he had originally planned.

Detrich stated that before he left Delhi, Shah Nusraty asked him to carry a wedding suit back to his brother Mohammad Dawood Nusraty (Dawood) who, Shah said, was getting married the following month. Shah explained that Dawood, a New York City taxi driver, would meet appellant at Kennedy Airport to pick up the suit and -- in return for that favor -- drive Detrich to LaGuardia Airport so he could catch his connecting flight back home to Virginia. Detrich agreed to the arrangement. Shortly before he left Delhi, a man called Waheed brought him the wedding suit. Appellant testified that Shah then shoved the suit into his suitcase, and that the two of them hurried off to the airport. Detrich stated that he had neither an opportunity nor a reason to examine the suit, which was encased in a plastic bag of the sort commonly used by dry cleaners. Goods that Hyde had purchased for his store filled the remainder of his suitcase.

When Detrich landed in New York Customs officials were waiting for him. Drug Enforcement Agency (DEA) officials in Delhi, India had notified their counterparts in New York that they suspected his luggage contained narcotics. Appellant told Customs Inspector Eileen Manna that he did not have any gifts, and declared $400 of goods acquired overseas -- the maximum amount allowed duty-free. He testified that while talking with Inspector Manna, he kept glancing out the door in an effort to spot Dawood. Upon observing Inspector Manna's examination of the suit's shoulderpads -- and just before she discovered the hidden heroin -- Detrich said that the wedding suit was not his.

Detrich was thereupon arrested, waived his Miranda rights, and stated that Shah Nusraty had asked him to deliver the suit to Dawood Nusraty for Dawood's upcoming wedding. Appellant then participated in a controlled delivery of the suit to Dawood, who was waiting outside Customs. The DEA did not tape the delivery.

Detrich contends that when he greeted Dawood -- whom he recognized from his stay in Queens with the Nusratys -- he asked Dawood if he was getting married. According to Detrich, Dawood replied that he was not getting married and would not take him to LaGuardia. Shortly thereafter the DEA agents arrested Dawood. He spoke with Agent Poole and gave a written statement in which he recounted his conversation with Detrich during the attempted controlled delivery. Later in the same written statement, Dawood stated "I am getting married in August and will live in Maryland." The trial court excluded this written statement from evidence.

Appellant, Shah Nusraty, and Dawood Nusraty were all charged in a three-count indictment. Count I charged them with conspiring to distribute and possess heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982); Count II charged them with knowing and intentional importation of heroin into the United States, in violation of 21 U.S.C. § 952(a); Count III charged them with possession of heroin with intent to distribute, in violation of § 841(a)(1). Shah Nusraty was apprehended in India and awaited proceedings ...


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