872 F2d 431 United States v. M Musliu

872 F.2d 431

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
Njazi M. MUSLIU, aka Jesse, Defendant-Appellant.

No. 88-3009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1988.
Decided April 10, 1989.

Before NELSON, BOOCHEVER and BRUNETTI, Circuit Judges.

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Njazi M. Musliu appeals his conviction for interstate travel with the intent to carry on an unlawful activity, the sale or distribution of cocaine, in violation of 18 U.S.C. section 1952.


Musliu contends that the extrinsic evidence improperly presented to the jury during deliberations was prejudicial. In addition, he claims that the district court erred in refusing to admit evidence of the government witness's prior conviction and that the indictment should have been dismissed because the government deliberately misled the grand jury. We affirm.



Michael Stringfellow, the principal government witness, worked for Musliu as a "mule", a person who transports drugs on behalf of another. Michael made trips to other states and to Europe to purchase and transport cocaine, and was paid by Musliu for each trip. On one occasion, Michael gave the cocaine to the wrong person, and Musliu was not paid. After this incident, Michael and Musliu were not on good terms with each other. During this time, Musliu took possession of Michael's jeep.


Because of his animosity towards Musliu, Michael went to the Snohomish County, Washington, authorities and told them about the situation with Musliu. Michael was also motivated by a possibility of obtaining some help for his brother, Patrick, who was facing a drug charge in Snohomish County, although no guarantees were ever given that Patrick would not be charged if Michael cooperated. The Snohomish County police referred Michael to the F.B.I.


Michael phoned Musliu's body shop and said he was upset about the missing jeep and would contact law enforcement authorities if he did not get a response within 48 hours. Musliu then offered to provide Michael with a plane ticket to Anchorage and money for gas to drive the jeep home to Washington. Using the airplane ticket provided by Musliu, Michael then flew to Alaska with his brother Patrick and retrieved his jeep. Musliu and Michael discussed rectifying the situation regarding Michael's debt to Musliu for the cocaine from the last trip, and Musliu said Michael could probably make some drug trips and things would be squared away. Musliu asked the Stringfellow brothers to stop by Edmonton, Alberta, Canada to pick up a suitcase of clothes. Musliu gave the brothers $341 for expenses and he also told them to collect $1000 Canadian owed to him in Edmonton and keep it.


Before leaving Anchorage, the Stringfellow brothers noticed that a window on the jeep would not roll down completely, and discovered a package of cocaine hidden in the door panel. The brothers then notified the F.B.I. and the cocaine was confiscated.

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The Stringfellows returned to Washington without making the scheduled stop in Edmonton to pick up the suitcase. After reaching Washington, the brothers called Musliu who made plans to fly down. Three weeks later, Musliu flew to Washington and Michael met him at the airport. Michael testified that at that time, Musliu told him about the cocaine in the jeep. Arrangements were made to retrieve the jeep which Michael said had been given to a friend to whom he owed a debt. The next day, Michael was wired with a tape recorder by the F.B.I., and a bag of white powder was planted in the jeep's door panel. Michael took Musliu to the jeep in Marysville, Washington. The conversations between Michael and Musliu on the way to the jeep were recorded. Musliu was arrested as he took the bag of white powder out of the door panel of the jeep.


Prior to trial, Musliu moved to dismiss the indictment based on prosecutorial misconduct before the grand jury. The court took the motion under advisement until after trial and then denied the motion.


Musliu was tried and the jury returned a guilty verdict. At the trial, tape recorded excerpts of the conversation between Michael and Musliu during the drive to the jeep were played to the jury. During jury deliberations, the excerpts were replayed, but the tape was allowed to continue to a point beyond where it stopped at trial, and the jury heard the following additional statement by Michael: "You're a God damn body man, you know more about hidin' the shit than I would." Following the trial, Musliu filed a motion for a new trial based on the improper introduction of new evidence before the jury during deliberations. The district court denied the motion.




The denial of a motion for new trial pursuant to Fed.R.Crim.P. 33 is reviewed for an abuse of discretion. See United States v. Steel, 759 F.2d 706, 713 (9th Cir.1985). The appellant carries a significant burden to show that the trial court abused its discretion in denying the motion for a new trial. Id.


Musliu contends that the additional tape-recorded statement by Michael was extrinsic evidence, and that his rights to a fair jury, a fair trial, cross-examination, and closing argument were denied when the statement was presented to the jury for the first time during deliberation.


A jury must decide a case only on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472 (1965). Turner involved possible prejudice created when the state's leading witnesses were the same two sheriffs who watched over the jury during the trial. The court held that "[t]he requirement that a jury's verdict 'must be based upon the evidence developed at trial' goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury." Id. In order to ensure that the defendant is given a fair trial, "at the very least the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-73. Although Turner did not involve extrinsic evidence introduced during deliberations, we have held that Turner would apply in such a case. Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035 (1981).


When the jury obtains extrinsic evidence, a new trial should be granted unless "it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict." Gibson, 633 F.2d at 855. Stated another way, we must reverse unless we can find that the error was "harmless beyond a reasonable doubt." United States v. Tebha, 770 F.2d 1454, 1456 (9th Cir.1985).


In Tebha, the defendant was convicted of possession of heroin with the intent to distribute. During jury deliberations, a chemical analysis report on the heroin was improperly given to the jury. The report was the only evidence on the purity of the heroin. The report stated that the heroin was almost pure. The court found that the error of submitting the report to the jury was not harmless as it was relevant to whether the defendant intended to "cut" the heroin and distribute it to others. Id. at 1456. The report was prejudicial because it was the only evidence on a relevant issue and may have influenced the jury to convict. Because the other evidence against Tebha was "far from overwhelming" and the extrinsic evidence was prejudicial, the court could not conclude that the error was harmless beyond a reasonable doubt. Id.


In United States v. Brown, 832 F.2d 128 (9th Cir.1987), the jury listened to a replay of a tape without the defendant or his counsel present. Because neither Brown nor his counsel were present during the replay, we held there was a possibility that extrinsic evidence was introduced in the form of a nod in a significant place on the part of the agent running the tape machine. This possibility that harmful extrinsic evidence was introduced during deliberations was sufficient to warrant a new trial. Id. at 130.


On the other hand, the introduction of extrinsic evidence did not require a new trial in United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981), cert. denied, 456 U.S. 962 (1982). Bagnariol was convicted as a result of a government sting operation where a government agent posed as the representative of a fictitious corporation. Bagnariol claimed, as part of his defense, that he believed the corporation was valid. One of the jurors in the case visited a library during the trial and consulted several business publications to determine if information on the legitimacy of the corporation was readily available to Bagnariol. The juror then reported his findings to several other jurors. Applying the standard that a new trial was necessary if there existed a reasonable possibility that this evidence could have affected the verdict, the court found that the extrinsic evidence failed to warrant reversal. Id. at 887. See also United States v. North, 746 F.2d 627, 632 (9th Cir.1984), cert. denied, 470 U.S. 1058 (1985); United States v. Halbert, 712 F.2d 388, 389 (9th Cir.1983), cert. denied, 465 U.S. 1005 (1984).


The statement here was extrinsic as it was presented to the jury for the first time during deliberations. Musliu contends that the tape recorded comment made by Michael to Musliu saying, "You're a God damn body man, you know more about hidin' the shit than I would," was prejudicial because it might have led the jury to conclude Musliu hid the cocaine in the jeep, and thus knew about the cocaine before he left Alaska. Musliu was charged with traveling in interstate commerce with the intent to "carry on an unlawful activity, to wit: the sale or distribution of cocaine." The government was thus required to prove that the trip from Anchorage to Seattle was made with that intent. Musliu argues that the jury could have found that his trip was for a legitimate purpose and that only after his arrival in Seattle did he become aware that there was cocaine in the jeep. He contends that the jury could disbelieve Michael's testimony that it was Musliu who first mentioned the cocaine at the Seattle airport. We must reverse unless we can determine beyond a reasonable doubt that the extrinsic evidence did not contribute to the jury's verdict that the travel was with the requisite intent. The reasons for the jury to believe that Musliu had an unlawful intent when he undertook the trip, however, are overwhelming.


An hour after Michael phoned Musliu and threatened to go to the authorities if he didn't get his belongings back, Musliu offered to pay Michael's airfare and traveling expenses to come to Alaska and retrieve the jeep. Musliu also paid $341.00 for gas for the trip to Edmonton and then Washington, and told Michael he could collect $1000 Canadian in Edmonton. It is unlikely that Musliu would offer to pay Michael for his trip unless he was using Michael to transport the hidden cocaine to Edmonton.


After the Stringfellows arrived in Washington, Michael picked Musliu up at the airport. Michael testified that the first thing Musliu said to him at the airport was that there was cocaine in the jeep. When Michael then expressed anger at the possibility that he could have been arrested while crossing the border with the drugs, Musliu explained that Michael could have told the authorities the jeep had been stolen and that they knew nothing about the drugs and the authorities would have let them go. Michael also testified that Musliu was "uptight" when informed that Michael no longer had possession of the jeep, indicating that he was concerned about losing the drugs.


Musliu, who did not testify, argues that the jury could well have disbelieved Michael because of his admitted effort to "set up" Musliu. He contends that the jury could have believed that in their airport conversation, Michael informed Musliu that there was cocaine in the jeep. Further evidence of Musliu's knowledge, however, is found in the tape recorded conversations between Michael and Musliu which were properly presented at trial. Michael told Musliu that "the bad part of it is, you gotta ... make an extra trip just to come down and ... do it over again" and Musliu replied, "I can't believe it. That's, that's hell." Michael then mentioned that Musliu also paid the gas money to have it "shipped out". Musliu made no denial. This conversation indicates that Musliu: knew the drugs were being transported; had paid the Stringfellows, not for gas, but to carry the drugs; and would have to pay again to transport the drugs because they did not stop in Edmonton as planned.


Musliu expressed regret about problems caused by the absence of the jeep the previous day. Musliu and Michael also discussed their mutual surprise at the airport: Musliu when he learned that the jeep was not in Michael's possession and Michael when he learned there were drugs in the jeep. These exchanges also show Musliu had knowledge of the cocaine when he flew to Washington.1 When Michael and Musliu arrived at the jeep, Musliu went straight to the door where the cocaine was hidden and retrieved it, indicating knowledge of the cocaine's location.


The extrinsic evidence added little, if anything, to the jurors' knowledge that Musliu was an experienced auto-body repairman who would best know how to hide the cocaine in the jeep. In fact, before the unauthorized portion of the tape was played to the jury, the government presented this very argument to the jury. The prosecuting attorney quoted from the portion of the tape previously played to the jury:


... [Musliu]: Man, ya know, as long as it gets back, it's in there. Nobody can get it out of there. It's in perfect spot. I just, ah, hope, ah, he got the jeep.

The government then argued:


He's a body man, and he says it's in the perfect spot. Nobody can get it out of there.


It is also undisputed that the cocaine was first discovered while the jeep was in Alaska immediately after the Stringfellows obtained it from Musliu. While Musliu argues that someone else may have placed the cocaine in the jeep and that he did not know about it until after he arrived in Seattle, such an explanation is highly suspect.


Giving consideration to all of the circumstances, we conclude that beyond a reasonable doubt the extrinsic statement could not have affected the jury's verdict. Thus the district court did not abuse its discretion by denying Musliu's motion for a new trial based on the extrinsic evidence.




A trial court's decision to exclude evidence of prior crimes should not be overturned absent an abuse of discretion. See United States v. Feldman, 788 F.2d 544, 557 (9th Cir.1986), cert. denied, 479 U.S. 1067 (1987).


Musliu argues that the trial court should have permitted evidence of Patrick and Michael Stringfellow's criminal records. He argues that evidence of Michael's knowledge of Patrick's prior offenses is relevant to Michael's motive to implicate Musliu.


Evidence probative of motive and bias that is not more prejudicial than probative is admissible on the issue of a witness's credibility. See Heath v. Cast, 813 F.2d 254, 259 (9th Cir.), cert. denied, 108 S.Ct. 147 (1987). Although the evidence of Patrick's prior convictions has some relevance to Michael's motivation to cooperate with the authorities, it was of minimal value in the jury's determination of Michael's credibility. His reasons for cooperating with the authorities were fully explored at trial. He discussed the charge pending against Patrick and admitted he was motivated by that charge. Evidence of Patrick's prior convictions would have added little.


There was no violation of Musliu's right to cross-examine here. The district court's refusal to allow Musliu to explore Michael's knowledge of Patrick's prior convictions was not error because "the jury had in its possession sufficient information to appraise the biases and motivations of the witness." See Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir.1980) (quoting United States v. Bleckner, 601 F.2d 382, 385 (9th Cir.1979)). Thus the district court did not abuse its discretion by excluding this evidence.


Musliu next argues that evidence of Michael's 1971 conviction for petty larceny should have been admitted under Fed.R.Evid. 609(a)(2). Rule 609(a)(2) allows evidence of convictions for crimes of "dishonesty or false statement" for the purpose of attacking the credibility of a witness. Evidence of such a conviction is not admissible if a period of more than ten years has elapsed from the date of conviction or release from confinement, unless the "court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b).


Even if Musliu were to overcome the time bar, the court's refusal to allow the testimony was not error. Larceny is not a crime involving "dishonesty or false statements". In United States v. Ortega, 561 F.2d 803, 806 (9th Cir.1977), the court noted that Rule 609 included only:


"crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimin falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."


Id. at 806 (quoting Conference Report, H.R. No. 93-1597, reprinted 3 Weinstein's Evidence, 609-39 (1976)). Similarly, United States v. Glenn, 667 F.2d 1269 (9th Cir.1982), held that:


Generally, crimes of violence, theft crimes, and crimes of stealth do not involve "dishonesty or false statement" within the meaning of rule 609(a)(2). Although such crimes may indicate a lack of respect for the persons or property of others, they do not "bear directly on the likelihood that the defendant will testify truthfully."


Id. at 1273 (emphasis in original) (internal citation omitted) (quoting United States v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867 (1977)).


A conviction for theft may be admissible under rule 609 if it was committed by fraudulent or deceitful means. Glenn, 667 F.2d at 1273. The defendant here would have the burden of presenting evidence concerning the manner in which the offenses were committed. Musliu has failed to present any such evidence. Michael Stringfellow's conviction for petty larceny was not admissible as a crime relating to dishonesty or false statements.



Whether an indictment should have been dismissed based on outrageous government conduct is a question of law subject to de novo review. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869 (1986). Therefore, allegations of prosecutorial misconduct before a grand jury are reviewed de novo. See United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1392 n. 9 (9th Cir.1983), cert. denied, 465 U.S. 1079 (1984).


Because the grand jury's duty is only to determine whether probable cause exists to believe the crime has been committed, we have held that "[d]ismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way, as where perjured testimony has knowingly been presented." United States v. Thompson, 576 F.2d 784, 786 (9th Cir.1978). Additionally, the misrepresentations, if found, must be material to justify dismissal of the indictment. See United States v. Flake, 746 F.2d 535, 538 (9th Cir.1984), cert. denied, 469 U.S. 1225 (1985); United States v. Bracy, 566 F.2d 649, 654-55 (9th Cir.1977), cert. denied, 439 U.S. 818 (1978). Even if there has been a material misrepresentation, if there is sufficient truthful testimony to support the indictment, the courts will not dismiss the indictment. United States v. Claiborne, 765 F.2d 784, 791 (9th Cir.1985), cert. denied, 475 U.S. 1120 (1986).


During the grand jury investigation, Special Agent Hastie was asked about the "background, as far as any criminal offenses" of the Stringfellow brothers. Hastie replied that Michael was "free of any criminal history" and that he was "not sure about his brother" but that he didn't "think so also". Musliu also cites Hastie's answer to a question about Michael's motivation to contact the authorities. Hastie told the grand jury about the June drug transaction that went bad but he failed to state that Michael was also motivated by the possibility of helping Patrick out of his pending drug charge. Finally, Musliu contends that Hastie's failure to tell the grand jury that Musliu attempted to roll down the window before retrieving the package contributed to the "unfairness of the grand jury."


The statements or omissions in question here were not material. The grand jury does have a duty "to determine whether the charge was founded on credible testimony or was dictated by malice or personal ill will." United States v. Basurto, 497 F.2d 781, 793 (9th Cir.1974) (Hufstedler, J., concurring). The evidence of Michael's former conviction, however, was not admissible at trial, and was not material to the grand jury's assessment of his credibility. Moreover, the grand jury was fully informed that both Michael and Patrick had participated in drug activities in the past. This is not one of the "flagrant cases" where dismissal of the indictment is required.


For these reasons, we AFFIRM.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The recorded exchanges between Michael and Musliu (referred to as Jesse) included the following:

Jesse: .... Get this shit out of the Jeep, leave it somevhere, and, I brought some people from. They vaited all day, ya know, yesterday for this shit.

Michael: Uh huh.

Jesse: And you wanna give something to these people and take off.

Michael: Uh huh.

Jesse: I didn't expect this shit to go wrong. Son of a bitch.


Michael: No. No, I told ya I'd like to have a picture of your fuckin' face and a picture of my fuckin' face and the two different looks we had.

Jesse: Surprise.

Michael: Do an instant replay, huh?

Jesse: Man, ya know, as long as it gets back, it's in there. Nobody can get it out of there. It's, it's, in perfect spot. I just, ah, hope, ah, he got the Jeep.