USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2294
UNITED STATES,
Appellee,
v.
HOJATOLLAH TAJEDDINI,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Kenneth J. King, with whom Fenn & King, were on brief for
________________
____________
appellant.
Robert W. Iuliano, Assistant United States Attorney, with
__________________

whom A. John Papparlardo, United

____________________
for appellee.

States Attorney, was

on brief

____________________
June 3, 1993
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
_____________________
wife,

Lori

conspiracy

Ann

McBride,

indicted

on

more than

100 grams

of a

a detectable

amount

to import

substance containing
One), and importation
substance
Two).
Defendant
counts.

containing a
Defendant's
went to

were

Defendant and

charges

his

of

mixture or

of heroin

(Count

of more than 100 grams of a mixture or

detectable amount
wife

trial and

pled

guilty

a jury

of heroin

(Count

prior

trial.

to

convicted him

on both

I.
I.
Prior Proceedings
Prior Proceedings
_________________
This
petition.

appeal comes

to us

Defendant, acting pro se, filed

___ __

of motions

in the district court

verdict:

a motion

assistance

of counsel;

for a

found

2255

a series

collaterally attacking the

trial based
for a

on ineffective

new trial

2255 petition

based on

to vacate, set

or correct sentence; and a motion for return of seized

property.

were

new

a motion

newly-discovered evidence;

trial

28 U.S.C.

After trial, defendant's counsel failed to file a

notice of appeal.

aside

via a

The district court denied all of defendant's post-

motions, and appeals

properly filed.
that no

We

relief was

from the

denial of

each motion

consolidated all the

appeals and

warranted on

the motions

any of

except for the claim of ineffective assistance of counsel for

failure to file a notice

of appeal.
-22

We remanded that

issue

for determination by

the district court.

Tajeddini, 945 F.2d

_________

458, 470 (1st Cir. 1991),

112 S. Ct. 3009 (1992).

the expiration

of the

appeal period

to hold, however, that

had

inadvertently

there could
The

be no

court went

defendant while proceeding pro se

___ __

failed

reinstated defendant's

cert. denied,
_____ ______

had dismissed his counsel prior

claim for ineffective assistance of counsel.

on

v.

After a hearing, the district court

found that because defendant

to

United States
_____________

to

file

timely

right to appeal.

It is

appeal

and

this appeal

that we now consider.

There
(1) whether

are

three

issues

the prosecutor's

(2) whether the

motion for a
(3) whether

closing

district court erred in

continuance prior
the

before

district

on

appeal:

argument was

proper;

denying defendant's

to the start

court

erred

us

in

of trial;
admitting

and
into

evidence a statement by defendant.

II.
II.
The Facts
The Facts
_________
We
disclosed at
Defendant,
Boston on
Germany.
first

begin

by

trial and
his

recounting

in a pre-trial

wife, and

October 20, 1988,

Because

processed

the

he was a

their

two

salient

facts

suppression hearing.
children, arrived

after a flight

His

in

from Frankfurt,

foreign national, defendant

by Immigration.

as

wife and

was

children,

American citizens, proceeded

directly to Customs inspection.

-33

After going through

Immigration, defendant

went to

Customs

where he was interviewed by Inspector Cheryl B. Gaffney.

Inspector
Customs questions:
lived, how long
In response,

Gaffney

in six

the

the purpose of

defendant stated that

he had not

or seven

years.

which

that he

defendant

his visit.
travelled to

his trip and that he had not been to

and

indicated

standard

on the trip, where he

he was gone, and

travelling alone

interview,

defendant

where he had been

Iran at any time during

Iran

asked

He also

gave Gaffney

his Customs

was travelling

was taken

McGrath and Bird to another

by

stated that

he was

Declaration

alone.

After the

Gaffney and

Inspectors

room for further questioning and

a possible search.
Defendant's wife,
children, went

to a

She was interviewed

her

Lori Ann McBride, and

different Customs line

by Inspector Pacewicz

Customs Declaration and

her passport

their two

than defendant.
to whom she
and those

gave
of her

children.

Following

travelers,

routine

Pacewicz

Communications System
was

fugitive

officials.
warrant

made

check on

or

The

procedures for
Treasury

Enforcement

McBride to determine

was being

sought

check showed that

for McBride's

international

arrest

by

if she

law

enforcement

there was an

outstanding

in California

on a

parental

-44

kidnapping

charge.1

Defendant

knew

of

the

outstanding

warrant against his wife.

After Inspector Pacewicz learned of the warrant, he
asked

McBride and the children to go to a nearby examination

table.

At

about

examination table
and

McGrath.

the

same

under escort

According to

nervous" on seeing defendant.

her

to a search

time,

defendant

of Inspectors

Pacewicz, McBride

passed

the

Gaffney, Bird
became "very

This prompted Pacewicz to take

room other than the

one to which defendant

was being escorted.

Almost immediately on entering the room,

McBride removed five packages from her coat and threw them on
the table,

saying, "I don't

know what this is.

My husband

made me carry them, but I know it was something bad."

the

packages

had

been thrown

on

the

table,

After

Inspector

Pacewicz found that the contents tested positive for heroin.

Sometime later, Special Agent Joseph Desmond of the
Drug Enforcement Agency ("DEA") came to the Customs area.
talked to Inspector Pacewicz
about

fifteen

defendant.
of

minutes.

and then talked to McBride

Desmond then

went

to

He
for

interview

Before questioning defendant, Desmond advised him

his Miranda
_______

rights.

Defendant said

rights, but did not understand why

he understood

his

he or his wife were being

____________________
1. The oldest child of defendant and McBride had been placed
in the custody of the California Department of Social
Services by the San Diego County, California, Juvenile Court.
The arrest warrant was issued after McBride took the child in
violation of the custody order.
-55

held.

Desmond then

ended his discussion with

defendant and

began

processing McBride and

making arrangements

for their

two children.
While
defendant
an

so

occupied,

wanted to see him.

extended conversation.

obtained

the

Mohammed Ali

"opium"

in

Karabolout.

Desmond

informed

that

Desmond and defendant then had

Defendant

told Desmond

Germany

from

He said

that he

$3,000 if he delivered the opium to one

Francisco. Defendant

was

told Desmond

an

that he

Iranian

named

was to be

paid

Parviz Parvin in San

that Parvin was

a "large

heroin dealer."2
Desmond talked to defendant again after his arrest.
Defendant repeated what

he had told

him before about

where

and from whom he had obtained the "opium" and how much he was
to be paid
discussed

for delivering
carrying out a

it.

Desmond

attorney,

defendant

then

controlled delivery whereby Parvin

would be arrested after defendant

considering the plan in

and defendant

made the delivery.

After

detail and after consulting with

told Desmond

that he

did not

an

want to

participate in the controlled delivery to Parvin.

____________________
2. On direct examination at trial, the defendant testified
that he had been temporarily in Iran. When he and his family
left Iran, a friend, George Shalmarez, who had lived in the
United States, drove them from Iran to Turkey. George asked
defendant to deliver packages of "cancer medicine" called
"shireb" to a sick friend, Parviz Parvin, in San Francisco.
George also told him that Parvin ran a limousine service in
San Francisco and might give him a job as a driver.
-66

The

district

court held

pre-trial suppression

hearing on both McBride's and defendant's motions to suppress

their

oral

and

evidence.

written

statements

prosecutor moved

McBride's

statement

contraband onto
The

certain

physical

The motions were denied as to defendant, but were

partially granted as to McBride.

the

and

court

to

admit

made when

the table

certain evidence
she

threw

in the Customs

suppressed McBride's

mentioned at

After McBride pled guilty,

trial although the

including

the packages

of

examination room.

statement

and

it was

not

Customs inspector described

her actions.
III.
III.
Analysis
Analysis
________
Defendant raises three issues
challenges parts of the

on appeal.

He first

prosecutor's closing argument on the

following grounds: (1) an impermissible reference to excluded

evidence; (2)

argument of matters based

personal belief and

on the prosecutor's

opinion and knowledge of

matters not in

evidence; (3) an attempt to inflame passions or

prejudice of

the jury; and (4) a misrepresentation of defendant's finances

to

suggest a motive for

appeals

the district

continuance, and
trial which was

the crime.

court's

the court's

In addition, defendant

denial of

his

motion for

decision to admit

not disclosed to defendant until

evidence at
three days

before trial.
-77

A.

Prosecutor's Closing Argument

_____________________________
Because defendant failed to

prosecutor's statements

made in closing

defendant's claims on appeal

United States v. Young,
_____________
_____

object at trial to the

argument, we review

under the plain error standard.

470 U.S. 1, 6, 14-15

(1985); United
______

States v. Rodriguez-Cardona, 924 F.2d 1148, 1154 (1st. Cir.),

______
_________________
cert. denied, 112 S. Ct. 54 (1991); Fed. R. Crim. P.
_____ ______
The plain error exception is
in

circumstances in

which

to be used "`sparingly,
a miscarriage

of justice

52(b)3.
solely
would

otherwise result.'"
States v.
______

Young, 470 U.S.

_____

Frady, 456
_____

U.S. at

prosecutor's statements
United States
_____________

at 15 (quoting

163 n.14).

in the context of

v. Morales-Cartagena,
_________________

Cir.

1993); United States v.

_____________

Cir.

1993);

We

consider the

the entire trial.

987 F.2d 849,

Smith, 982 F.2d

_____

Rodriguez-Cardona,
_________________

United
______

924 F.2d

854 (1st

681, 682 (1st

at 1154.

Three

significant factors guide our evaluation of whether the trial

was so tainted by prosecutorial misconduct in
constitute

plain

error:

"(1) whether

the

argument as to
prosecutor's

conduct was isolated and/or deliberate; (2) whether the trial

court gave a strong
(3) whether

it is

judge's instruction

and explicit cautionary instruction; and

likely that
could have

any prejudice

surviving the

affected the outcome

____________________
3.

Fed. R. Crim. P. 52(b) provides as follows:

Plain Error.
Plain errors or defects
affecting
substantial rights
may be
noticed although they were not brought to
the attention of the court.
-88

of the

case."

United States v.
______________

Hodge-Balwing, 952
_____________

F.2d 607,

610

(1st Cir. 1991); see also Morales-Cartagena, 987 F.2d at 954.

___ ____ _________________
With these

tenets in

allegations

mind, we

of misstatement

whether there

was error,

address each

of defendant's

by the prosecutor

and then

we assess

to determine
the aggregate

effect on the trial as a whole.

1.
1.

Alleged Reliance on Evidence Excluded From Trial

Alleged Reliance on Evidence Excluded From Trial
________________________________________________
Defendant

claims

that

argument relied on evidence

trial

as

hearsay.

she emptied packages

know what this is.
it
was

trial,

the

court

during the Customs

from her

coat onto a

the

suppressed

examination as
table, "I

inadmissible

The court found

don't

hearsay because
knowledge of the

that the statement

McBride was

available to

contents of the

was being offered to establish defendant's knowledge

a

closing

My husband made me carry them, but I know

was something bad."

testify, and her

prosecutor's

that had been excluded from

Before

McBride's statement, made

the

statement which

was not

in furtherance of

packages
through

their alleged

conspiracy.
At trial,
the search room with
removing

Customs Inspector

Pacewicz, who

was in

McBride, recounted McBride's actions of

the packages from her coat, and did not mention her

previously excluded

statement.

Defendant did

not object to

this

testimony

and

does

not

now

claim

that

allowing

-99

Pacewicz's testimony was

with

the way

argument.

error.4

the prosecutor

used

Defendant's complaint
the evidence

During closing argument, the

is

in closing

prosecutor made the

following references to Inspector Pacewicz's testimony:

At that time Inspector Pacewicz took
Lori Ann McBride to another secondary
search room. As soon as Lori Ann McBride
entered the secondary search room she
dumped packages out of her coat.
I leave it to you, for example, to
decide what, if anything, that indicates
about what Lori Ann McBride might have
thought was in those packages.
Later in his argument the prosecutor stated:
You heard how Lori Ann McBride then
pulled the stuff out of her pockets and
dumped it on the table.
Obviously, very
nervous, very agitated.
The
Customs
Declaration
of
the
defendant says he is travelling alone.
Was there some understanding between Lori
Ann McBride and the defendant?
The
evidence, I suggest, shows clearly that

there was.
We note first that
prosecutor used suppressed
wrong.

defendant's allegation that the

evidence in

The prosecution fully

closing argument

adhered to the

is

court's order

____________________
4. Defendant may be arguing, by implication, that Inspector
Pacewicz's testimony about McBride's actions was inadmissible
hearsay evidence of expressive conduct.
Because defendant
has not directly raised this as an issue on appeal, we deem
it waived.
United States v. Zannino, 895 F.2d 1, 17 (1st
_____________
_______
Cir.) ("It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work, create the ossature for the argument, and put
flesh on its bones."), cert. denied, 494 U.S. 1082 (1990).
_____ ______
-1010

excluding
argument
statement.

McBride's statement.
recounted

McBride's

Inspector Pacewicz

The
actions,

prosecutor's
not

closing

her suppressed

also testified to her actions

and not her statement.

Defendant alternatively argues that by referring to
McBride's

actions and

asking

the jury

to draw

inferences

based on her actions, the prosecutor was attempting to convey

the message, expressed by McBride's

defendant knew
prosecutor's
argues,

excluded statement, that

that the packages contained

reference

to

should have been

McBride's

contraband.

actions,

excluded for the

The

defendant

same reason that

the court excluded her statement.

The prosecutor's
trial, as

the district

argument was not evidence

court properly instructed

in the

the jury.

Argument necessarily presents a partisan view of the evidence

admitted

at

trial.

Although

may

not

interject personal credibility or opinion into argument,

the

prosecutor is entitled, in
warrantable
trial.

prosecution

closing, to ask the jury

inferences from

Young, 470
_____

the

the

U.S. at 7;

evidence

to draw

admitted

United States
_____________

during

v. Mount, 896
_____

F.2d 612, 625 (1st Cir. 1990).

The prosecutor asked the jury to consider "what, if
anything" McBride's actions indicated about what
was in

the packages

prosecutor

later

which

suggested

she threw
that

-1111

on

she thought

the table.

McBride's

actions

The
and

nervousness and defendant's

travelling
and

alone indicated an

defendant.

McBride

Customs Declaration that he

The

threw the

understanding between McBride

evidence at

packages

on

examination

room, that

she was

examination,

and that

defendant

alone.

Therefore,

trial

the

established

table in

the

nervous during
claimed

the prosecutor

to be

asked the

nothing

improper

in

McBride's actions in closing

the

prosecutor's

that

Customs

the Customs
travelling

jury

warrantable inferences based upon the evidence at

find

was

to draw

trial.

We

reference

to

argument, and therefore we find

no error.
2.
2.

Argument of Matters Not in Evidence and Personal

Argument of Matters Not in Evidence and Personal
________________________________________________
Opinion
Opinion
_______
Next,

prosecutor's

defendant

reference

asserts

to defendant's

impropriety

in

the

decision

not to

go

ahead with the controlled delivery in which he had originally

agreed to

participate.5

his decision not to

the safety
defendant

of his

At trial,

defendant testified that

cooperate was motivated by his

wife and

family.

On cross-examination,

admitted stating to DEA Agent

Desmond in a letter

that Parvin was "the Al Capone of San Francisco" and

knew Parvin

"to be

____________________

the key

of the

fear for

whole

that he

drug supply

for

5. When asked by DEA Agent Desmond to cooperate in a

controlled delivery of the packages containing heroin to
Parvin, the intended recipient of the "medicine" in San
Francisco, defendant initially agreed to participate and then
changed his mind.
-1212

California."

The

innocence, however,
contained cancer

defendant
claiming

medicine for

continued
that he

to

maintain

thought the

Parvin, not

heroin.

his

packages
In his

closing, the prosecutor made the following remarks:

Why, ladies and gentlemen, would he
not do it, [the controlled delivery] if
he was confident that at the other end of
the road there was someone waiting for
cancer medicine and not heroin?
If in
fact, someone was waiting
there for
cancer and medicine, he could have proved
his innocence and surely he knows that in
that instance he would not have been
prosecuted.
In his

rebuttal, the

prosecutor responded

defendant's closing thus:

Mr. Boudreau [the defense lawyer] just
said that I said in my closing argument
that the defendant
would have
been
prosecuted anyway, even if he effected
the controlled delivery. That was not my
point.
My
point was that if
the
defendant is telling the truth, that the
person at the other end of the line,

to the

Parvis Parvin, was waiting

he could have proved his
effecting the delivery.

for medicine,
innocence by

The defendant said he initially agreed

to do it because he wanted to show that
the person at the other end of the line
was waiting for medicine and not heroin.
Clearly, the defendant could not have
thought that if he effected the delivery
and the person was, in fact, waiting for
medicine and was sick with cancer, that
he would have been prosecuted.
I think that, clearly, he would not,
or clearly
he would not
have been
prosecuted if he had proved his innocence
in that manner.

-1313

Although he did not

opposes the prosecutor's
statements

refer to

object at trial, defendant now

statements on two bases:

matters not

in evidence

that the

and that

statements assert the personal beliefs of the prosecutor.

is improper for

It

a prosecutor, in argument, to refer to or to

seem to rely on matters not

683.

the

in evidence.

Smith, 982 F.2d at

_____

It is also improper for a prosecutor to

credibility or opinions into argument.

Id.;

insert his own

Mount, 896 F.2d

___
at

625.

Defendant contends

that the

_____

prosecutor's remarks

impermissibly suggested that he knew something not introduced

at trial which determined whether or not defendant would have
been

prosecuted and

also interjected

his

personal opinion

about defendant's actions.

The prosecutor may have overstepped
of

permissible argument

by offering

the boundaries

his opinion,

"I think

that, clearly he would not, or clearly he would not have been

prosecuted

if he had proved his innocence in that manner."6

If so, the transgression

does not constitute plain error

the context of the trial as a whole.

routinely insert
do

we find

court

his personal opinion into

that his

did not

The

remark was

give a cautionary

in

prosecutor did not

the argument nor

deliberate.

Although the

instruction, we

find that

____________________
6. The prosecutor, apparently, was attempting to make the
point that defendant refused to cooperate in the controlled
delivery to Parvin because he knew that the circumstances of
the delivery would not clear him of the crimes charged and,
therefore, he would be prosecuted anyway.
-1414

little,

if

any,

prejudice

resulted.

argument about the implications

The

prosecution's

of defendant's choice not to

participate in the controlled delivery was merely

cumulative

of other evidence including defendant's confessions, admitted

at

trial and

argued

knowledge that
medicine.

in closing,

which showed

the packages contained heroin

Therefore,

the

remark

was

not

defendant's

and not cancer

so

severely

prejudicial as to undermine defendant's substantial rights or

the fairness of the trial as a whole.
Defendant

also

argument as quoted above

claims

gave a

innocence to

sufficient

dispel any

the

prosecutor's

impermissibly shifted the burden to

defendant to prove his innocence.

the court

that

We do not agree.

charge on

Further,

the presumption

improper suggestion which

of

the jury

might have taken from the argument.7

3.
3.

Inflammatory Remarks
Inflammatory Remarks
____________________

____________________
7. On the government's burden of proof, the court instructed
as follows:
The law presumes a defendant to be
innocent of a crime.
Thus, defendant,
although accused, begins the trial with a
clean slate, with no evidence against
him, and the law permits nothing but
legal evidence presented before the jury
to be considered in support of any charge
against
the
defendant.
So
the
presumption
of
innocence
alone
is
sufficient to acquit a defendant unless
the
jurors
are satisfied
beyond a
reasonable doubt of the defendant's guilt
after
a
careful
and
impartial

consideration of all the evidence

case.

in the

-1515

Defense

counsel argued in closing that defendant's

failure to hide the packages of contraband in suitcases or in

hidden compartments indicated his innocence.

The

prosecutor

answered in rebuttal as follows:

Finally, ladies and gentlemen, Mr.
Boudreau suggests that the defendant, if
he knew he was smuggling in heroin would
have found a secret compartment in the
luggage to carry the heroin.
I suggest
that the defendant did find a secret
compartment.
He
found
a
secret
compartment in his American wife who he
thought would not be searched because she
was an American wife with two small
children,
and
that
is the
secret
compartment that he found and attempted
unsuccessfully to use.
Defendant

now

argues

that the

prosecutor's

references to

defendant's American wife were intended to inflame the jury's

________
passions

and prejudices

There is no doubt

against defendant

who is

that argument which is intended

to emotions rather than to reason is improper.

Iranian.
to appeal

United States
_____________

v. Moreno, No.
______
1993);

92-2018, slip op. at

10-11 (1st Cir. May

6,

United States v. Johnson, 952 F.2d 565, 574 (1st Cir.

_____________
_______

1991), cert. denied, 113

_____ ______

S. Ct. 58 (1992); United States v.

______________

Giry, 818 F.2d 120, 132-33 (1st Cir.), cert. denied, 484 U.S.
____
_____ ______
855

(1987).

That is

not the case

the prosecutor's remarks,

an

Although

taken in isolation, might

appeal to the passions of

taken

here, however.

suggest

the jury, when his remarks are

in context, any such tactic

vanishes.

The prosecutor

was countering the defense by arguing that defendant may have

-1616

assumed that his American

through

Customs than he

smuggling the

wife would have an

would, and used

packages of heroin.

easier passage

that advantage for

Further, the

the following cautionary instruction:

The fact that the defendant in this
case is not a citizen of the United
States and is by birth an Iranian should
not prejudice you for or against him, but
he should be treated like any other

court gave

defendant, and your verdicts should be

based on the evidence that has been
introduced before you in this case.
Reading the prosecutor's

remarks in context and

in light of

the defense's closing argument, we find no impropriety in the

statement.

If

cautioned

any

prejudice was

the jury not

to allow

communicated, the
bias about

court

nationality to

influence its decision.

4.
4.

Financial Motive for the Crime

Financial Motive for the Crime
______________________________
In

motive

to

response to
commit

prosecution argued
$700 when they

the

defendant's claim
crime

of

importing

that defendant, and his

entered the

that he

United States.

had no

heroin,

the

family, had only

The amount

was

based upon the combined Customs Declarations of defendant and

McBride.
if

Defendant admitted that he had been promised $3,000

he delivered the

contraband to Parvin.

argued that the promised

for defendant to
that he had

payment provided a financial motive

import the heroin.

$1,456 in

The prosecution

Defendant now

traveller's checks with

asserts

him when

he

entered the United States which the government seized when he

-1717

was arrested. The government notes that after reviewing their

files they agree

with defendant.

Defendant argues

that the

prosecution's imputed financial motive was improper given the

traveller's checks.

Defendant failed to

at trial and failed to

his

testimony at

raise the argument

mention the traveller's checks during

trial.

There is

no suggestion

that the

prosecution deliberately misrepresented defendant's financial

condition.
although
we find

Further,

$3,000 remains

a financial

incentive,

less significance.

Therefore,

argument of financial

motive was

perhaps of somewhat
the prosecution's

proper under these circumstances.

5.
5.

No Plain Error
No Plain Error
______________
We

have

argument was, for

the

found

entire trial, we find

justice.

In

that the aggregate

and did not

closing

the context of
impact of any

cause a miscarriage

of

Denial of Motion for Continuance

Denial of Motion for Continuance
________________________________

his

obtain

motion for
additional

considered this
his

prosecutor's

Therefore, the trial was not marred by plain error.

The defendant
of

the

the most part, proper.

impropriety was minimal

B.
B.

that

28

U.S.C.

appeals the district

continuance to
corroborative

issue in

allow
evidence.

court's denial

time in

We previously

defendant's appeal from

2255 petition.

At that

which to

denial of

time, defendant

claimed ineffective
his

counsel's

assistance of

failure

to

counsel due, in

timely

file

the

part, to

motion

for

-1818

continuance.

After trial

defendant obtained from

Iran,

which defendant

Defendant

submitted the

reviewed

the

statement was
was

sufficient

other

hearsay rule.

were not
of the

hoped to

of

to this

Karabolout's
We found that

than inculpatory,

indicia

of

at trial.
court.

We

statement

and

Karabolout's

interest, as it

and that

reliability

it lacked

to

obligate the

that it fell within any

exception to

We concluded that the documents from Iran

admissible in evidence and,

motion for

a statement

present

not against significant penal

district court to find

the

had

was hearsay.

more exculpatory

2255 appeal,

the people involved with defendant

police report

substance

concluded that it

before the

Iran a police report of

by Ali Karabolout, one of

in

and

continuance did not

Tajeddini, 945 F.2d at 463-65.

_________

therefore, late filing

prejudice defendant.

Defendant
decision on

now

requests

the ground that we

effect of Iranian law

reconsideration of our
P. 40.8

we

reconsider

We decline to do

not an appropriate method to

previous decision.

Further, when a

our

previously misunderstood the

on Karabolout which would result

his statement to Iranian police.

appeal is, of course,

that

so.

from
This

move for

See
___

Fed. R. App.

legal issue has been

presented to

____________________
8. After our decision and the mandate to the district court
was issued, the defendant filed several
petitions for
extensions of time to file a motion for rehearing and a
request for recall of mandate. His petitions and requests
were denied because he failed to demonstrate any errors in
-1919

and

decided by this court,

the

case in all

United States
_____________
Cir.),

our decision becomes

the law of

subsequent proceedings on

the same matter.

v. Rivera-Martinez, 931 F.2d

_______________

148, 150-52 (1st

cert. denied, 112 S. Ct. 184 (1991); United States v.

_____ ______
_____________

Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, 112 S. Ct.
_____
_____ ______

77 (1991); United States v. Latorre, 922

_____________
_______

F.2d 1, 9 (1st Cir.

1990), cert. denied, 112 S. Ct. 217 (1991).

_____ ______
A court's determination
as a

of foreign law is

ruling on a question of law.

Although

we retain

previously

the power

decided,

it is

treated

Fed. R. Crim. Pro. 26.1.

to reopen

a question

our practice

to

do so

of law
only in

extraordinary circumstances such as when "'[(1)] the evidence

presented in a subsequent
[(2)]

controlling

authority

decision of the law

decision

v.

Murtha,
______

Morgan
______

erroneous

since

made

and would

work a

contrary
[(3)] the
manifest

Rivera-Martinez, 931 F.2d at 151 (quoting White

_______________
_____
377 F.2d

v.

has

applicable to such issues, or

was clearly

injustice.'"

trial was substantially different,

428, 432

Burke, 926
_____

(5th

F.2d 86,

91

Cir. 1967));
(1st Cir.

see also
___ ____

1991), cert.
_____

denied, 112 S. Ct. 1664 (1992).

______
Extraordinary
case.
different

Defendant
evidence

makes
on

circumstances do
no
this

argument
issue

____________________
our opinion.
-2020

was

not exist
that

in this

substantially

presented

at

the

district

court

controlling

hearing

offered

decision on

to

authority has changed

We are unconvinced by
as

prior

by

this

appeal,

since our

or

that

prior opinion.

defendant's argument that Iranian law,

defendant,9

this issue.

Karabolout's statement

requires

us

to

Therefore, our prior

change

our

holding that

was inadmissible hearsay

was neither

clearly erroneous nor did it constitute a manifest injustice,

and there is no reason to disturb it.
C.
C.

Delayed Discovery Disclosure

Delayed Discovery Disclosure
____________________________
Defendant

assigns as

error

the district

court's

decision to allow the government to introduce statements made

by

defendant to Customs

were
trial.

not disclosed

to the

Defendant claims

statements violated Fed.

to his defense.

inspectors although

defense until three

that the

days before

late disclosure

R. Crim. P. 16 and

We disagree.

____________________

the statements

of the

was prejudicial

9. The defendant has submitted a letter from the director of

the Interests Section of the Islamic Republic of Iran at the
Embassy of Pakistan which is signed for the director by
someone else. The letter expresses an opinion, based on a
letter from defendant's attorney, that the proceedings in
Iran against Karabolout were only temporarily suspended, and
that Karabolout may be exposed to criminal or civil penalties
based on his statement to the Iranian police.
Although we
are not bound by the rules of evidence in considering proof
of foreign law, the defendant's submission is inadequate to
inform this court of Iranian law allegedly relevant to this
matter.
-2121

Rule 16(a)(1), in the version in effect at the time

of defendant's

trial,

required the

government to

certain evidence prior to trial:

Upon request of
a defendant
the
government shall permit the defendant to
inspect and copy or photograph:
any
relevant written or recorded statements
made by the defendant, or copies thereof,
within the possession, custody or control
of the government, the existence of which
is known, or by the exercise of due
diligence may become
known, to
the
attorney of the government; the substance
of
any
oral
statement
which
the
government intends to offer in evidence
at
the trial made by the defendant
whether
before
or after
arrest in
response to interrogation by any person
then known by the defendant to be a
government agent . . . ."

disclose

Fed. R.

Crim. P. 16(a)(1)(A); see also

___ ____

U.S. Dist. Ct. Mass.

R. 116.1 (Automatic Discovery in Criminal Cases).

imposes a
other
to

continuing obligation

evidence or material

the

rule.

If

measures
party
P.

or

fails to

provide

discovery as

the district court may impose

sanctions including

remedial

prohibiting

the violating

from introducing the evidence at trial.

Fed. R. Crim.

16(d)(2).

In

exercising

discovery rule violations,

into

to disclose

previously requested and subject

a party

required by Rule 16,

on all parties

Rule 16(c)

its

the district

the surrounding circumstances

violating

discretion

party acted in bad

to

control

court must

inquire

to determine whether the

faith.

Id.;
___

United States v.
_____________

Samalot Perez, 767 F.2d 1, 4 (1st Cir. 1985).

_____________

Our review of

-2222

district

court's

determine whether
States

v. Alvarez,

rulings

the court
987 F.2d

on

discovery

matters

abused its discretion.

77, 85

(1st Cir.

is

to

United
______

1993).

To

______

_______

obtain reversal,
court abused
the

the defendant must prove

its discretion

defense.

Alvarez,
_______

Nickens, 955 F.2d 112,

_______

that the district

which resulted in

987 F.2d

at

prejudice to

85; United States v.

______________

126 (1st Cir.), cert. denied,

_____ ______

113 S.

Ct. 108 (1992).

Defendant
oral

statements

objects to the

he made

Customs inspector.

in

government's use

response to

questioning

Answering routine questions

was arriving from and with

of two

of where he

whom he was travelling, defendant

said that he had not been in Iran for six or seven years
that

he was travelling alone.

false.

and

Both of those statements were

During a hearing

at the beginning

by a

on preliminary

matters

of the trial, the district court questioned

the government as to why the statements were not disclosed to

defense counsel in a timely manner.

The government responded

that the statements were unknown to them until the day before
they
trial.
asked
that

were disclosed

to defense

counsel, three

days before

The next day, before testimony began, defense counsel

the court
the

late

to suppress the
disclosure,

statements on

three days

-2323

before

the grounds
trial,

had

prejudiced
The

his

opportunity

district

statements

court

about

When the

to

elicit

suppression
ruled

The court

trial showed

suppression, he would

conditionally

were admissible.

testimony during

hearing.

for

that

that

the

a basis

from

Inspector

defendant's statements, the court directed

proceed with the questions.

if
for

hold a suppression

government alerted the court that

testimony

two

cautioned that

there was

halt the trial and

hearing.10

it was

Gaffney

about

the government to

Defense counsel objected and the

court overruled the objection without elaboration.

On
disclosure of
of

appeal,

defendant

argues

the statements by the

that

the

government deprived him

an opportunity to attempt to suppress the statements.

contends
because

that the
he

questioning

was
which

statements
not

given

produced

should

have been

Miranda
_______

warnings

the

late

statements.

He

suppressed
before

the

Defendant's

theory is that if the inspector who processed McBride through

Customs

became aware of the

warrant for her

arrest and her

relationship to defendant before another inspector questioned

defendant, then there was a basis for detaining defendant and

he was entitled to

Miranda warnings before being questioned.

_______

____________________
10. A suppression hearing
matters.

was held

before trial

on other

-2424

The
custodial

right

to

Miranda
_______

or coercive situation.

298,

309 (1985); United States

_____________

(1st

Cir. 1987).

arrest, without

warnings

v. Masse, 816
_____

F.2d 805, 809

nor probable

restrain the suspect,

requirement for Miranda warnings.

_______

in

Oregon v. Elstad, 470 U.S.

______
______

Neither suspicion
action to

attaches

cause to
invoke the

United States v. McDowell,

_____________
________

918

F.2d 1004, 1008 (1st Cir. 1990); United States v. Mejia,

_____________
_____

720

F.2d 1378, 1381 (5th Cir. 1983); United States v. Silva,

_____________
_____

715

F.2d

43,

46-48

(2d

Cir.

1983).

Routine

Customs

questioning does not require Miranda warnings.

_______
v.

Pratt, 645 F.2d 89,

_____

U.S. 881 (1981).

90-91 (1st Cir.),

Even if the

United States
_____________

cert. denied, 454

_____ ______

circumstances hypothesized by

defendant had occurred, defendant was not entitled to Miranda

_______
warnings

before

answering

routine

Customs

questions.

Therefore, the false statements made by defendant in response

to

the Customs inspector's

questions were properly admitted

into evidence.
There is
disclosed

to

no

question

defendant

Defendant does

not argue

faith, however,

and the

that

long past

the

the

statements

discovery deadline.

that the government

acted in

court's inquiry concerning

government's disclosure was delayed does

of bad faith by the government.

were

bad

why the

not reveal evidence

Defendant has not shown that

the delay prejudiced his defense by impairing his opportunity

to suppress

the statements.

The

-2525

court heard testimony

at

trial from the Customs inspectors involved with defendant and

McBride, and found that a suppression hearing was unnecessary
before defendant's

statements were admitted.

Therefore, we

find no abuse of the court's discretion to control

violations
Defendant's

and no
request

resulting
that

prejudice

this

issue be

to

the

defendant.

remanded

district court for a suppression hearing is denied.

Affirmed.
Affirmed.
_________

discovery

to

the

-2626