Appeal from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, convicting defendant of narcotics offenses on the basis of, inter alia, evidence admitted pursuant to Fed. R. Evid. 404(b).
Kearse, Cardamone and Winter, Circuit Judges.
Defendant Ahmad Afjehei appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Edward R. Korman, Judge, convicting him on one count of importation of heroin, in violation of 21 U.S.C. §§ 952(a), 960(a)(1) & (b)(1)(A) (1982 & Supp. IV 1986), and one count of possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(i) (1982 & Supp. IV 1986). He was sentenced to concurrent prison terms of 121 months on each count, to be followed by concurrent 5-year terms of supervised release; he was fined a total of $7,500 and was ordered to pay a special assessment of $50 on each count. On appeal, Afjehei contends principally that the trial court abused its discretion in admitting certain evidence as similar-act evidence pursuant to Fed. R. Evid. 404(b) when there was no indication that the prior acts were similar to the conduct with which he was charged. For the reasons below, we conclude that the evidence was improperly admitted, and we vacate the conviction and remand for a new trial.
The present prosecution arises out of Afjehei's arrival in the United States in December 1987 carrying a suitcase containing heroin. Afjehei was indicted on two counts of possession and importation as indicated above. The government's proof at trial revealed the following.
On December 3, 1987, Afjehei, a 24-year-old Iranian citizen having resident alien status in the United States, arrived at John F. Kennedy International Airport from Istanbul. In response to questions from a customs inspector, Afjehei stated that he was a student at UCLA and that the suitcase he was carrying was his. The initial search of the suitcase revealed that it contained clothing and a gym bag; closer inspection revealed that one side had a false bottom. The customs inspector testified that when his search turned to the side of the suitcase with the false bottom, Afjehei's "eyes dropped, his jaw dropped, I saw a big change in his face." Search of the concealed compartment revealed more than 2.3 kilograms, or approximately five pounds, of heroin.
Afjehei was arrested and, after the arrival of a Farsi interpreter, was given Miranda warnings. He then stated that he had been given the suitcase by a friend in Turkey who had asked him to deliver it to a person in Los Angeles, Afjehei's destination. Afjehei said he did not have the name or description of the person who was to meet him in Los Angeles, and he denied knowing that there was heroin in the suitcase.
At issue on this appeal is evidence as to prior trips taken by Afjehei, admitted over Afjehei's objections. In his opening statement, the Assistant United States Attorney ("AUSA") noted that Afjehei was a resident of the United States but made frequent trips abroad:
[AUSA] BURNS: . . . You will learn that he left the United States.
MR. BRADFORD: [Afjehei's attorney]: I am going to object to this portion of the opening statement.
MR. BRADFORD: Can we have a side ...