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United States v. Kusek

decided: April 6, 1988.


Appeal from a conviction for conspiracy to distribute heroin and the possession of heroin, in violation of 21 U.S.C. § 846, and conspiracy to import heroin in violation of 21 U.S.C. § 963, following a jury trial in the District Court for the Southern District before Shirley Wohl Kram, Judge.

Lumbard, Miner, Circuit Judges, and Kaufman, District Judge.*fn*

Author: Lumbard

LUMBARD, Circuit Judge:

Luke J. Kusek was convicted of conspiracy to distribute heroin and possession of heroin, in violation of 21 U.S.C. § 846 and conspiracy to import 100 grams or more of heroin, in violation of 21 U.S.C. § 963,*fn1 following a jury trial which lasted more than five weeks and ended on November 2, 1986 in the District Court for the Southern District before Judge Kram. Kusek appeals from his sentence of two consecutive terms of imprisonment of five to ten years each and fines totaling $200,000. He is currently serving this sentence.

Kusek claims that (1) the government did not provide a "satisfactory explanation" for an eight-day delay between the termination of a wiretap conducted by the Delaware State Police and the sealing of the resulting tapes, which were admitted into evidence at trial; (2) the court erred by refusing to admit handwriting exemplars for comparison in the absence of a handwriting expert; (3) the government failed to establish venue in the Southern District; (4) the prosecutor failed to disclose a statement made to a law enforcement officer, in violation of Rule 16(a) of the Federal Rules of Criminal Procedure and in deprivation of his right to due process; (5) testimony of a Drug Enforcement Agency ("DEA") agent's opinions regarding intercepted coded telephone conversations was improper; (6) admission of a suppressed tape recorded conversation to impeach a defense witness violated Kusek's Fourth Amendment rights; (7) the government's use of an otherwise suppressed tape recording of two conversations between Kusek and his son to refresh Kusek's son's memory during cross-examination violated Rule 801(d)(2)(E) of the Federal Rules of Evidence and the confrontation clause of the Constitution; and (8) the court erred by not declaring a mistrial in the aftermath of a reference by a county investigator on the first day of trial to Kusek's invocation of his right to remain silent at his arrest. We affirm.

The evidence shows Kusek's participation in a heroin smuggling operation that imported heroin from the Golden Triangle (encompassing portions of Burma, Thailand and Laos) into the United States, via Nepal. Skip Morgan met Dany Thakur in a Japanese prison where they were both incarcerated on drug charges. After their release, Thakur returned to his home in Nepal and Morgan returned to Delaware. The two remained in contact and, through coded letters, made arrangements to import heroin into the United States. Morgan met Thakur and Hom Gurung, who was Thakur's Nepalese source of heroin in Montreal, Canada, in June 1983. Gurung agreed to supply heroin to Morgan, and Thakur was to receive a commission for acting as the middleman. Morgan described Kusek as his "boss" who would distribute the heroin once it reached the United States. Morgan also explained that Kusek would supply money for the operation and would sponsor Gurung's entry into the United States to make final arrangements for the importation.

A few weeks later, Kusek sent a sponsoring letter and a round trip plane ticket for Gurung to the United States embassy in Nepal. This enabled Gurung to obtain a United States visa. Gurung travelled to the United States in the fall of 1983 and lived with Kusek in New Jersey and with Morgan in Delaware until February 1984. In February 1984, Gurung left for Nepal accompanied by Kusek's son, Luke E. Kusek.

On February 10, 1984, in the course of an investigation into Morgan's local heroin trafficking, Judge John T. Walsh of the Superior Court of Delaware authorized the Delaware state police to wiretap several of Morgan's phones from February 14 to February 23. During that wiretap, the state police intercepted drug-related conversations in which Morgan and Kusek discussed selling narcotics and the transfer of narcotics from Morgan to Kusek's customers in the United States. The conversations also indicated that they were awaiting the arrival of three individuals from overseas (apparently Kusek's son and two Nepalese drug couriers).

The Delaware police kept Morgan under surveillance. On February 15, they followed Morgan to a meeting with Kusek in the parking lot near Kusek's office in New Jersey. There, according to a Delaware police officer who was present, Morgan removed a brown paper bag from his car and handed it to Kusek, who then placed it in his car. Morgan was also holding a yellow bag which, at trial, a police officer testified appeared to be the same yellow bag containing $9,000 in cash later found in Morgan's home.

On February 22, Delaware police followed Morgan to New Jersey where he joined Kusek and Kusek's wife. Morgan then followed the Kuseks in his car to Kennedy airport to meet Kusek's son, Gurung and Thakur, all of whom were arriving from Nepal. At the airport, Kusek's son started a brawl with the customs officials to create a diversion that allowed the two Nepalese to go through customs without being searched. After leaving the terminal, the two Nepalese drove off with Kusek and Morgan in Morgan's car.

The next day, February 23, Kusek was arrested by New Jersey authorities and Morgan was arrested by the Delaware police. Kusek's home in New Jersey was searched pursuant to a warrant. No heroin was found, but in the course of the search, police uncovered more than $45,000 in cash, scales and boxes containing thousands of small plastic bags. They also found four sealed manila envelopes containing marijuana. In Morgan's home and at his place of business, police discovered $9,000 in cash and torn-up paper which, when pieced together, showed payments between Kusek, Morgan, and a third individual.

On the day of the arrests, the wiretap authorization ended. The tapes of the conversations between Morgan and Kusek were not sealed, however, until March 2, 1984 (an eight-day delay). Over objection, Judge Kram allowed the government to introduce the tapes.

The February 1984 searches and arrests did not, however, end the importation conspiracy. In April 1984, Thakur called Kusek from Nepal and read him a list of numbers which constituted a code regarding couriers who continued to smuggle heroin into the United States. In January 1985, Thakur came to the United States to collect commissions he believed Morgan owed him. Morgan gave him some money and promised more at a later date. Apparently, Morgan kept this promise: his ex-wife later travelled to Nepal with $7,000 to $8,000 for Thakur. In June 1985, a courier involved in the importation network was arrested in San Francisco on his way to meet Gurung's brother, Narayan Gurung, in Manhattan. The courier cooperated with the DEA and, as a result, Narayan Gurung and two companions, Lalit Dewan and Nima Lama, were arrested in Manhattan. Despite these arrests, the importation operation continued and Morgan periodically paid commissions to Thakur.

In January 1986, Thakur left Nepal to go to the United States to make arrangements for an unrelated drug transaction. After Thakur was arrested by a DEA agent in Newark, he agreed to cooperate with the government and testified at trial. Thakur made a number of monitored telephone calls from Manhattan to Morgan; during these calls, he set up a meeting with Morgan in Manhattan which was videotaped by the DEA. At the meeting, Morgan and Thakur discussed the delivery of more heroin, and Morgan paid Thakur $3,000. They also discussed Kusek's son's activity in diverting customs officials at Kennedy airport which enabled the Nepalese to escape customs inspection. Morgan was arrested by DEA authorities at the end of this meeting. Kusek was not arrested until May 1, 1986.

Kusek, Morgan, Gurung and Luke E. Kusek were indicted on April 21, 1986. The first count charged them with a conspiracy to distribute heroin and possess heroin with intent to distribute it, in violation of 21 U.S.C. § 846. The second count charged the same four individuals with conspiring to import 100 or more grams of heroin in violation of 21 U.S.C. § 963. Prior to Kusek's trial, Morgan pleaded guilty to counts one and two. Gurung is a fugitive. A Nolle Prosequi was filed as to Luke E. Kusek prior to his father's trial.

At trial, the videotape of the meeting between Morgan and Thakur was introduced over objection. In addition, Special Agent John Nolan of the DEA testified as an expert on the coded conversations between Morgan and Kusek which were intercepted in February 1984. He stated that the word "paint" meant heroin, and that in his opinion the conversations between Kusek and Morgan were narcotics related.

Kusek did not testify but he did call several witnesses. A next-door neighbor of Kusek testified that Kusek had recently sold his restaurant. Luke E. Kusek testified that (1) he did not know of the two Nepalese whom Kusek and Morgan met at the airport, (2) he had no knowledge of drugs being imported, (3) he had not knowingly assisted in the importation of heroin, and (4) the scuffle in the airport was a result of the customs inspectors' mistreatment of him. In summation, although conceding that many of the items found in Kusek's home and the wiretapped conversations with Morgan were drug related, Kusek's attorney argued that the evidence was consistent with a finding that the drug involved in any conspiracy was marijuana, not heroin.

1. Delay in Sealing the Tapes

Kusek claims that the eight-day delay in sealing the tapes violated 18 U.S.C. § 2518(8)(a). Under that statute, wiretap evidence must be presented to a judge for sealing "immediately upon the expiration of the period of the [wiretap] order, or extensions thereof." Here, the Delaware Deputy Attorney General, Timothy H. Barrons mistakenly believed that both police officers involved in the wiretap needed to be present at the sealing before the judge. On February 23, one of the officers was involved in dismantling the wiretap and the other in inventory and cataloging the materials seized in the searches. As a result, Barrons told Judge Walsh, the only judge in Delaware authorized to seal wiretaps, that the sealing could not take place on Friday, February 24. Barrons did not call Judge Walsh over the weekend because he did not wish to disturb him at home. ...

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