
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  States Attorney, was  on brief               ____________________          for appellee.                                 ____________________                                     June 3, 1993                                 ____________________                      BOWNES, Senior Circuit  Judge.   Defendant and  his                      BOWNES, Senior Circuit  Judge.                              _____________________            wife,  Lori   Ann  McBride,  were  indicted   on  charges  of            conspiracy  to import  more than  100 grams  of a  mixture or            substance containing  a detectable  amount  of heroin  (Count            One), and importation  of more than 100 grams of a mixture or            substance  containing a  detectable amount  of heroin  (Count            Two).     Defendant's  wife  pled  guilty   prior  to  trial.            Defendant  went to  trial and  a jury  convicted him  on both            counts.                                          I.                                          I.                                  Prior Proceedings                                  Prior Proceedings                                  _________________                      This  appeal comes  to us  via a  28 U.S.C.    2255            petition.   After trial, defendant's counsel failed to file a            notice of appeal.   Defendant, acting pro se, filed  a series                                                  ___ __            of motions  in the district court  collaterally attacking the            verdict:    a motion  for a  new  trial based  on ineffective            assistance  of counsel;  a motion  for a  new trial  based on            newly-discovered evidence;  a   2255 petition  to vacate, set            aside  or correct sentence; and a motion for return of seized            property.  The district court denied all of defendant's post-            trial  motions, and appeals  from the  denial of  each motion            were  properly filed.   We  consolidated all the  appeals and            found  that no  relief was  warranted on  any of  the motions            except for the claim of ineffective assistance of counsel for            failure to file a notice  of appeal.  We remanded that  issue                                         -2-                                          2            for determination by  the district court.   United States  v.                                                        _____________            Tajeddini, 945 F.2d  458, 470 (1st Cir. 1991),  cert. denied,            _________                                       _____ ______            112 S. Ct. 3009 (1992).   After a hearing, the district court            found that because defendant  had dismissed his counsel prior            to  the expiration  of the  appeal period  there could  be no            claim for ineffective assistance of counsel.  The  court went            on  to hold, however, that  defendant while proceeding pro se                                                                   ___ __            had  inadvertently  failed  to   file  a  timely  appeal  and            reinstated defendant's  right to appeal.   It is  this appeal            that we now consider.                      There   are  three  issues  before  us  on  appeal:            (1) whether  the prosecutor's  closing  argument was  proper;            (2) whether the  district court erred in  denying defendant's            motion for a  continuance prior  to the start  of trial;  and            (3) whether  the  district  court  erred  in  admitting  into            evidence a statement by defendant.                                         II.                                         II.                                      The Facts                                      The Facts                                      _________                      We  begin  by  recounting  the  salient   facts  as            disclosed at  trial and  in a pre-trial  suppression hearing.            Defendant,  his  wife, and  their  two  children, arrived  in            Boston on  October 20, 1988,  after a flight  from Frankfurt,            Germany.  Because  he was a  foreign national, defendant  was            first  processed  by Immigration.    His  wife and  children,            American citizens, proceeded  directly to Customs inspection.                                         -3-                                          3            After going through  Immigration, defendant  went to  Customs            where he was interviewed by Inspector Cheryl B. Gaffney.                      Inspector  Gaffney  asked  defendant  the  standard            Customs questions:   where he had been  on the trip, where he            lived, how long  he was gone, and  the purpose of  his visit.            In response,  defendant stated that  he had not  travelled to            Iran at any time during  his trip and that he had not been to            Iran  in six  or seven  years.   He also  stated that  he was            travelling alone  and  gave Gaffney  his Customs  Declaration            which  indicated  that he  was travelling  alone.   After the            interview,  defendant  was taken  by  Gaffney and  Inspectors            McGrath and Bird to another  room for further questioning and            a possible search.                      Defendant's wife,  Lori Ann McBride, and  their two            children, went  to a  different Customs line  than defendant.            She was interviewed  by Inspector Pacewicz  to whom she  gave            her  Customs Declaration and  her passport  and those  of her            children.   Following  routine  procedures for  international            travelers,    Pacewicz    made    a   Treasury    Enforcement            Communications System  check on  McBride to determine  if she            was  a  fugitive  or  was being  sought  by  law  enforcement            officials.  The  check showed that  there was an  outstanding            warrant  for McBride's  arrest  in California  on a  parental                                         -4-                                          4            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  the  same  time,  defendant  passed  the            examination table  under escort  of Inspectors  Gaffney, Bird            and  McGrath.   According to  Pacewicz, McBride  became "very            nervous" on seeing defendant.  This prompted Pacewicz to take            her  to a search  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."   After            the    packages  had  been thrown  on  the  table,  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.  He            talked to Inspector Pacewicz  and then talked to McBride  for            about  fifteen  minutes.    Desmond then  went  to  interview            defendant.  Before questioning defendant, Desmond advised him            of  his Miranda  rights.   Defendant said  he understood  his                    _______            rights, but did not understand why  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.                                          -5-                                          5            held.  Desmond then  ended his discussion with  defendant and            began  processing McBride and  making arrangements  for their            two children.                      While   so  occupied,  Desmond  was  informed  that            defendant  wanted to see him.  Desmond and defendant then had            an  extended conversation.   Defendant  told Desmond  that he            obtained  the  "opium"  in  Germany  from  an  Iranian  named            Mohammed Ali  Karabolout.   He said  that he  was to be  paid            $3,000 if he delivered the opium to one  Parviz Parvin in San            Francisco. Defendant  told Desmond  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  for delivering  it.  Desmond  and defendant  then            discussed  carrying out a  controlled delivery whereby Parvin            would be arrested after defendant  made the delivery.   After            considering the plan in  detail and after consulting with  an            attorney,  defendant  told Desmond  that he  did not  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.                                         -6-                                          6                      The  district  court held  a  pre-trial suppression            hearing on both McBride's and defendant's motions to suppress            their  oral  and  written  statements  and  certain  physical            evidence.   The motions were denied as to defendant, but were            partially granted as to McBride.   After McBride pled guilty,            the  prosecutor moved  to  admit  certain evidence  including            McBride's  statement  made when  she  threw  the packages  of            contraband onto  the table  in the Customs  examination room.            The  court  suppressed McBride's  statement  and  it was  not            mentioned at  trial although the  Customs inspector described            her actions.                                         III.                                         III.                                       Analysis                                       Analysis                                       ________                      Defendant raises three issues  on appeal.  He first            challenges parts of the  prosecutor's closing argument on the            following grounds: (1) an impermissible reference to excluded            evidence; (2)  argument of matters based  on the prosecutor's            personal belief and  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  the crime.   In addition, defendant            appeals  the district  court's  denial of  his  motion for  a            continuance, and  the court's  decision to admit  evidence at            trial which was  not disclosed to defendant until  three days            before trial.                                         -7-                                          7            A.  Prosecutor's Closing Argument                _____________________________                      Because defendant failed to  object at trial to the            prosecutor's statements  made in closing  argument, we review            defendant's claims on appeal  under the plain error standard.            United States v. Young,  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.  52(b)3.            _____ ______            The plain error exception is  to be used "`sparingly,  solely            in  circumstances in  which  a miscarriage  of justice  would            otherwise result.'"   Young, 470 U.S.  at 15 (quoting  United                                  _____                            ______            States v.  Frady, 456  U.S. at  163 n.14).   We  consider the            ______     _____            prosecutor's statements  in the context of  the entire trial.            United States  v. Morales-Cartagena,  987 F.2d 849,  854 (1st            _____________     _________________            Cir.  1993); United States v.  Smith, 982 F.2d  681, 682 (1st                         _____________     _____            Cir.  1993);   Rodriguez-Cardona,  924 F.2d  at 1154.   Three                           _________________            significant factors guide our evaluation of whether the trial            was so tainted by prosecutorial misconduct in  argument as to            constitute  plain  error:     "(1) whether  the  prosecutor's            conduct was isolated and/or deliberate; (2) whether the trial            court gave a strong  and explicit cautionary instruction; and            (3) whether  it is  likely that  any prejudice  surviving the            judge's instruction  could have  affected the outcome  of the                                            ____________________            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.                                         -8-                                          8            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  mind, we  address each  of defendant's            allegations  of misstatement  by the prosecutor  to determine            whether there  was error,  and then  we assess  the aggregate            effect on the trial as a whole.                  1.  Alleged Reliance on Evidence Excluded From Trial                 1.  Alleged Reliance on Evidence Excluded From Trial                     ________________________________________________                      Defendant  claims  that  the  prosecutor's  closing            argument relied on evidence  that had been excluded from  the            trial  as  hearsay.    Before  trial,  the  court  suppressed            McBride's statement, made  during the Customs  examination as            she emptied packages  from her  coat onto a  table, "I  don't            know what this is.  My husband made me carry them, but I know            it  was something bad."   The court found  that the statement            was  inadmissible  hearsay because  McBride was  available to            testify, and her  knowledge of the  contents of the  packages            was being offered to establish defendant's knowledge  through            a  statement which  was not  in furtherance of  their alleged            conspiracy.                       At trial,  Customs Inspector  Pacewicz, who  was in            the search room with  McBride, recounted McBride's actions of            removing  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                                         -9-                                          9            Pacewicz's testimony was  error.4   Defendant's complaint  is            with  the way  the prosecutor  used  the evidence  in closing            argument.   During closing argument, the  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  defendant's allegation that the            prosecutor used suppressed  evidence in  closing argument  is            wrong.   The prosecution fully  adhered to the  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).                                   _____ ______                                         -10-                                          10            excluding  McBride's statement.    The  prosecutor's  closing            argument  recounted  McBride's  actions,  not  her suppressed            statement.  Inspector Pacewicz  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  excluded statement, that            defendant knew  that the packages contained  contraband.  The            prosecutor's  reference  to   McBride's  actions,   defendant            argues,  should have been  excluded for the  same reason that            the court excluded her statement.                        The prosecutor's  argument was not evidence  in the            trial, as  the district  court properly instructed  the jury.            Argument necessarily presents a partisan view of the evidence            admitted  at  trial.     Although  the  prosecution  may  not            interject personal credibility or opinion into argument,  the            prosecutor is entitled, in  closing, to ask the jury  to draw            warrantable  inferences from  the  evidence  admitted  during            trial.   Young, 470  U.S. at 7;  United States  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  she thought            was in  the packages  which  she threw  on  the table.    The            prosecutor  later  suggested   that  McBride's  actions   and                                         -11-                                          11            nervousness and defendant's  Customs Declaration that he  was            travelling  alone indicated an  understanding between McBride            and  defendant.    The  evidence at  trial  established  that            McBride  threw the  packages  on  the  table in  the  Customs            examination  room, that  she was  nervous during  the Customs            examination,  and that  defendant  claimed  to be  travelling            alone.   Therefore,  the prosecutor  asked the  jury  to draw            warrantable inferences based upon the evidence at  trial.  We            find  nothing  improper  in  the  prosecutor's  reference  to            McBride's actions in closing  argument, and therefore we find            no error.                  2.  Argument of Matters Not in Evidence and Personal                 2.  Argument of Matters Not in Evidence and Personal                     ________________________________________________                     Opinion                     Opinion                     _______                      Next,   defendant   asserts   impropriety  in   the            prosecutor's  reference  to defendant's  decision  not to  go            ahead with the controlled delivery in which he had originally            agreed to  participate.5  At trial,  defendant testified that            his decision not to  cooperate was motivated by his  fear for            the safety  of his  wife and  family.   On cross-examination,            defendant  admitted stating to DEA Agent  Desmond in a letter            that Parvin was "the Al Capone of San Francisco" and  that he            knew Parvin  "to be  the key  of the  whole  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.                                         -12-                                          12            California."    The  defendant  continued   to  maintain  his            innocence, however,  claiming  that he  thought the  packages            contained cancer  medicine for  Parvin, not  heroin.   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  to the            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,                      Parvis Parvin, was waiting  for medicine,                      he could  have  proved his  innocence  by                      effecting the delivery.                         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.                                                      -13-                                          13                      Although he did not  object at trial, defendant now            opposes the prosecutor's  statements on two bases:   that the            statements  refer to  matters not  in evidence  and that  the            statements assert the personal beliefs of the prosecutor.  It            is improper for  a prosecutor, in argument, to refer to or to            seem to rely on matters not  in evidence.  Smith, 982 F.2d at                                                       _____            683.  It is also improper for a prosecutor to  insert his own            credibility or opinions into argument.  Id.;  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  the boundaries            of  permissible argument  by offering  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  in            the context of the trial as a whole.  The  prosecutor did not            routinely insert  his personal opinion into  the argument nor            do  we find  that his  remark was  deliberate.   Although the            court  did not  give a cautionary  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.                                             -14-                                          14            little,  if  any,  prejudice  resulted.    The  prosecution's            argument about the implications  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  in closing,  which showed  defendant's            knowledge that  the packages contained heroin  and not cancer            medicine.    Therefore,  the   remark  was  not  so  severely            prejudicial as to undermine defendant's substantial rights or            the fairness of the trial as a whole.                            Defendant   also   claims  that   the  prosecutor's            argument as quoted above  impermissibly shifted the burden to            defendant to prove his innocence.  We do not agree.  Further,            the court  gave a  sufficient  charge on  the presumption  of            innocence to  dispel any  improper suggestion which  the jury            might have taken from the argument.7                   3.  Inflammatory Remarks                 3.  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  in the                      case.                                         -15-                                          15                      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  against defendant  who is  Iranian.            There is no doubt  that argument which is intended  to appeal            to emotions rather than to reason is improper.  United States                                                            _____________            v. Moreno, No.  92-2018, slip op. at  10-11 (1st Cir. May  6,               ______            1993);  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  here, however.  Although            the prosecutor's remarks,  taken in isolation, might  suggest            an  appeal to the passions of  the jury, when his remarks are            taken  in context, any such tactic  vanishes.  The prosecutor            was countering the defense by arguing that defendant may have                                         -16-                                          16            assumed that his American  wife would have an  easier passage            through  Customs than he  would, and used  that advantage for            smuggling the  packages of heroin.   Further, the  court gave            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                      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  any  prejudice was  communicated, the  court            cautioned  the jury not  to allow  bias about  nationality to            influence its decision.                    4.  Financial Motive for the Crime                 4.  Financial Motive for the Crime                     ______________________________                      In  response to  defendant's claim  that he  had no            motive  to   commit  the  crime  of   importing  heroin,  the            prosecution argued  that defendant, and his  family, had only            $700 when they  entered the  United States.   The amount  was            based upon the combined Customs Declarations of defendant and            McBride.  Defendant admitted that he had been promised $3,000            if  he delivered the  contraband to Parvin.   The prosecution            argued that the promised  payment provided a financial motive            for defendant to  import the heroin.   Defendant now  asserts            that he had  $1,456 in  traveller's checks with  him when  he            entered the United States which the government seized when he                                         -17-                                          17            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  raise the argument            at trial and failed to  mention the traveller's checks during            his  testimony at  trial.   There is  no suggestion  that the            prosecution deliberately misrepresented defendant's financial            condition.  Further,  $3,000 remains  a financial  incentive,            although  perhaps of somewhat  less significance.  Therefore,            we find  the prosecution's  argument of financial  motive was            proper under these circumstances.                 5.  No Plain Error                 5.  No Plain Error                     ______________                      We  have  found   that  the  prosecutor's   closing            argument was, for  the most part, proper.  In  the context of            the  entire trial, we find  that the aggregate  impact of any            impropriety was minimal  and did not  cause a miscarriage  of            justice.  Therefore, the trial was not marred by plain error.            B.  Denial of Motion for Continuance            B.  Denial of Motion for Continuance                ________________________________                      The defendant  appeals the district  court's denial            of  his  motion for  continuance to  allow  time in  which to            obtain  additional  corroborative  evidence.    We previously            considered this  issue in  defendant's appeal from  denial of            his  28  U.S.C.    2255 petition.    At that  time, defendant            claimed ineffective  assistance of  counsel due, in  part, to            his  counsel's   failure  to  timely  file   the  motion  for                                         -18-                                          18            continuance.    After trial  and  before the     2255 appeal,            defendant obtained from  Iran a police report of  a statement            by Ali Karabolout, one of  the people involved with defendant            in  Iran,  which defendant  had  hoped to  present  at trial.            Defendant  submitted the  police report  to this  court.   We            reviewed   the  substance   of  Karabolout's   statement  and            concluded that it  was hearsay.   We found that  Karabolout's            statement was  not against significant penal  interest, as it            was  more exculpatory  than inculpatory,  and that  it lacked            sufficient  other  indicia  of  reliability  to  obligate the            district court to find  that it fell within any  exception to            the  hearsay rule.  We concluded that the documents from Iran            were not  admissible in evidence and,  therefore, late filing            of the  motion for  continuance did not  prejudice defendant.            Tajeddini, 945 F.2d at 463-65.              _________                      Defendant  now  requests  that  we  reconsider  our            decision on  the ground that we  previously misunderstood the            effect of Iranian law  on Karabolout which would result  from            his statement to Iranian police.  We decline to do  so.  This            appeal is, of course,  not an appropriate method to  move for            reconsideration of our  previous decision.  See  Fed. R. App.                                                        ___            P. 40.8   Further, when a  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                                         -19-                                          19            and  decided by this court,  our decision becomes  the law of            the  case in all  subsequent proceedings on  the same matter.            United States  v. Rivera-Martinez, 931 F.2d  148, 150-52 (1st            _____________     _______________            Cir.),  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  of foreign law is  treated            as a  ruling on a question of law.   Fed. R. Crim. Pro. 26.1.            Although  we retain  the power  to reopen  a question  of law            previously  decided,  it is  our practice  to  do so  only in            extraordinary circumstances such as when "'[(1)] the evidence            presented in a subsequent  trial was substantially different,            [(2)]  controlling  authority  has   since  made  a  contrary            decision of the law  applicable to such issues, or  [(3)] the            decision  was clearly  erroneous  and would  work a  manifest            injustice.'"  Rivera-Martinez, 931 F.2d at 151 (quoting White                          _______________                           _____            v.  Murtha,  377 F.2d  428, 432  (5th  Cir. 1967));  see also                ______                                           ___ ____            Morgan  v.  Burke, 926  F.2d 86,  91  (1st Cir.  1991), cert.            ______      _____                                       _____            denied, 112 S. Ct. 1664 (1992).              ______                      Extraordinary  circumstances do  not exist  in this            case.    Defendant  makes  no   argument  that  substantially            different  evidence  on  this  issue  was  presented  at  the                                            ____________________            our opinion.                                                 -20-                                          20            district  court  hearing  prior   to  this  appeal,  or  that            controlling  authority has changed  since our  prior opinion.            We are unconvinced by  defendant's argument that Iranian law,            as  offered  by    defendant,9  requires  us  to  change  our            decision on  this issue.   Therefore, our prior  holding that            Karabolout's statement  was inadmissible hearsay  was neither            clearly erroneous nor did it constitute a manifest injustice,            and there is no reason to disturb it.                               C.  Delayed Discovery Disclosure            C.  Delayed Discovery Disclosure                ____________________________                      Defendant  assigns as  error  the district  court's            decision to allow the government to introduce statements made            by  defendant to Customs  inspectors although  the statements            were  not disclosed  to the  defense until three  days before            trial.    Defendant claims  that the  late disclosure  of the            statements violated Fed.  R. Crim. P. 16 and  was prejudicial            to his defense.  We disagree.                                            ____________________            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.                                          -21-                                          21                      Rule 16(a)(1), in the version in effect at the time            of defendant's  trial,  required the  government to  disclose            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 . . . ."                          Fed. R.  Crim. P. 16(a)(1)(A); see also  U.S. Dist. Ct. Mass.                                           ___ ____            R. 116.1 (Automatic Discovery in Criminal Cases).  Rule 16(c)            imposes a  continuing obligation  on all parties  to disclose            other  evidence or material  previously requested and subject            to  the  rule.   If  a party  fails to  provide  discovery as            required by Rule 16,  the district court may impose  remedial            measures  or  sanctions including  prohibiting  the violating            party  from introducing the evidence at trial.  Fed. R. Crim.            P.  16(d)(2).    In  exercising  its  discretion  to  control            discovery rule violations,  the district  court must  inquire            into  the surrounding circumstances  to determine whether the            violating  party acted in bad  faith.  Id.;  United States v.                                                   ___   _____________            Samalot Perez, 767 F.2d 1, 4 (1st Cir. 1985).   Our review of            _____________                                         -22-                                          22            a  district  court's  rulings  on  discovery  matters  is  to            determine whether  the court  abused its discretion.   United                                                                   ______            States  v. Alvarez,  987 F.2d  77, 85  (1st Cir.  1993).   To            ______     _______            obtain reversal,  the defendant must prove  that the district            court abused  its discretion  which resulted in  prejudice to            the  defense.   Alvarez,  987 F.2d  at  85; United  States v.                            _______                     ______________            Nickens, 955 F.2d 112,  126 (1st Cir.), cert. denied,  113 S.            _______                                 _____ ______            Ct. 108 (1992).                      Defendant  objects to the  government's use  of two            oral  statements  he made  in  response to  questioning  by a            Customs inspector.   Answering routine questions  of where he            was arriving from and with  whom he was travelling, defendant            said that he had not been in Iran for six or seven years  and            that  he was travelling alone.  Both of those statements were            false.              During a hearing  on preliminary  matters            at the beginning  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  were disclosed  to defense  counsel, three  days before            trial.  The next day, before testimony began, defense counsel            asked  the court  to suppress the  statements on  the grounds            that  the  late  disclosure,  three days  before  trial,  had                                         -23-                                          23            prejudiced  his  opportunity  for  a  suppression  hearing.10            The   district  court  conditionally   ruled  that   the  two            statements  were admissible.    The court  cautioned that  if            testimony during  trial showed  that  there was  a basis  for            suppression, he would  halt the trial and  hold a suppression            hearing.  When the  government alerted the court that  it was            about  to  elicit  testimony  from  Inspector  Gaffney  about            defendant's statements, the court directed  the government to            proceed with the questions.  Defense counsel objected and the            court overruled the objection without elaboration.                      On  appeal,   defendant   argues  that   the   late            disclosure of  the statements by the  government deprived him            of  an opportunity to attempt to suppress the statements.  He            contends  that the  statements  should  have been  suppressed            because  he  was  not   given  Miranda  warnings  before  the                                           _______            questioning  which  produced  the  statements.    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  was held  before trial  on other            matters.                                         -24-                                          24                      The  right  to  Miranda  warnings   attaches  in  a                                      _______            custodial  or coercive situation.  Oregon v. Elstad, 470 U.S.                                               ______    ______            298,  309 (1985); United States  v. Masse, 816  F.2d 805, 809                              _____________     _____            (1st  Cir. 1987).   Neither suspicion  nor probable  cause to            arrest, without  action to  restrain the suspect,  invoke the            requirement for Miranda warnings.  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.  United States                                         _______            _____________            v.  Pratt, 645 F.2d 89,  90-91 (1st Cir.),  cert. denied, 454                _____                                   _____ ______            U.S. 881 (1981).   Even if the  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  no  question  that  the  statements  were            disclosed  to  defendant  long past  the  discovery deadline.            Defendant does  not argue  that the government  acted in  bad            faith, however,  and the  court's inquiry concerning  why the            government's disclosure was delayed does  not reveal evidence            of bad faith by the government.  Defendant has not shown that            the delay prejudiced his defense by impairing his opportunity            to suppress  the statements.   The  court heard testimony  at                                         -25-                                          25            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  discovery            violations  and no  resulting  prejudice  to  the  defendant.            Defendant's  request  that  this  issue be  remanded  to  the            district court for a suppression hearing is denied.                                           Affirmed.                                          Affirmed.                                          _________                                         -26-                                          26
