On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Before Judges Gaulkin, D'Annunzio and Wallace
The opinion of the court was delivered by WALLACE, J.A.D.
On March 27, 1989, defendant Zaki Abdelnoor was indicted for second-degree conspiracy to distribute heroin in an amount in excess of five ounces (N.J.S.A. 2C:35-5 and 2C:5-2); first-degree distribution of heroin in an amount in excess of five ounces (N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1)); first-degree possession with intent to distribute heroin in an amount in excess of five ounces (N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1)); and third degree possession of heroin in an amount in excess of five ounces
(N.J.S.A. 2C:35-10a(1)). Codefendants Isaac Salmassi and Louis Mather were included in the conspiracy count of the indictment. However, Mather resided in Beirut and was not extradited to the United States for trial.
Following a jury trial, defendant was found guilty of all four counts of the indictment. The jury was unable to reach a unanimous decision as to codefendant Salmassi, resulting in a mistrial as to him. After merging all of the convictions into the first degree distribution charge, the trial court sentenced defendant to ten years in New Jersey State Prison with a three year and four month parole disqualifier.*fn1 Defendant was also assessed a $3,000 D.E.D.R. penalty for a first degree offense, a $50 lab fee and a $30 V.C.C.B. penalty.
Defendant seeks a reversal of his convictions on the following grounds:
DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON DUE PROCESS ENTRAPMENT GROUNDS SHOULD HAVE BEEN GRANTED BECAUSE OF THE OUTRAGEOUS AND ILLEGAL CONDUCT OF THE PROSECUTOR'S OFFICE IN THIS CASE.
EVEN ASSUMING THAT, AS A MATTER OF LAW, DISMISSAL OF THE INDICTMENT WAS NOT REQUIRED, THE JURY STILL SHOULD HAVE BEEN CHARGED ON DUE PROCESS ENTRAPMENT. .
A. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO CHARGE THE JURY ON DUE PROCESS ENTRAPMENT.
B. IN THE ALTERNATIVE, DEFENSE COUNSEL'S FAILURE TO REQUEST A JURY INSTRUCTION ON DUE PROCESS ENTRAPMENT SO PREJUDICED DEFENDANT'S CASE AS TO VIOLATE HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
In December 1987, Karl Pakela was arrested by the Somerset County Police for conspiracy to distribute cocaine. Pakela agreed
to cooperate with the police. He told the police that Louis Mather, whom he met while in prison, planned to bring heroin into the United States. After both men were released from prison, Mather moved to Beirut, Lebanon and wrote to Pakela concerning possible drug deals. Mather and Pakela exchanged letters and had telephone conversations in which Mather told Pakela that he was "setting things up". Mather said that he would know in a couple of months the exact amount of heroin that he would ship.
With this information and Pakela's consent, Detective Timothy Wenzel began listening to telephone conversations between Pakela and Mather. Wenzel listened as Mather discussed a plan to smuggle heroin from Beirut to the United States. However, Mather did not specify the price or quantity of the drugs.
By June 11, 1988, Wenzel felt the Discussions between Pakela and Mather had progressed to the point where a deal would likely take place, so he began to tape record their calls. The taping lasted approximately four months and detailed in code the price and quantity of the heroin to be delivered. For example, in the first taped conversation on June 11, 1988, Mather referred to the quantity of heroin as the adoption of five children at once, meaning five kilograms of heroin would be delivered at one time. The price of $250,000 per kilogram was referred to as "the children's average age is two and a half." In a conversation held on August 25, 1988, Mather reduced the quantity of heroin from five to one kilogram.
On October 6, 1988, Mather called Pakela and stated that a courier named Zaki Abdelnoor would arrive at New York's Kennedy International Airport on British Airways flight 179 at nine o'clock that evening with approximately half a kilogram of heroin. Mather described defendant as a man in his sixties, with thick glasses, a tattoo in the center of his forehead, who would be holding silver rosary beads. Mather told Pakela to refer to ...