United States v. Mussayev ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
8-7-2003
USA v. Mussayev
Precedential or Non-Precedential: Precedential
Docket No. 02-1924P
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Mussayev" (2003). 2003 Decisions. Paper 306.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/306
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
Filed August 6, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1924
UNITED STATES OF AMERICA
v.
ALEX MUSSAYEK,
a/k/a TSION MUSSAYEK,
a/k/a ALEXANDER MUSSAYEL,
a/k/a ALEXANDER MUSSYEV
Tsion “Alex” Mussayev,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 00-cr-00180)
District Judge: Honorable Anne E. Thompson
Argued February 3, 2003
Before: SLOVITER, RENDELL and STAPLETON,
Circuit Judges.
(Filed August 6, 2003)
Chester M. Keller, Esq. [ARGUED]
Andrea D. Bergman, Esq.
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102
Counsel for Appellant
2
George S. Leone, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Thomas Ott, Esq. [ARGUED]
United States Department
of Justice
Organized Crime & Racketeering
Section
1301 New York Avenue, N.W.,
Room 715
Washington, DC 20005
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
Alex Mussayek1 appeals from the final judgment of
conviction and sentence entered against him by the District
Court on March 27, 2002, after he was found guilty by a
jury of one count each of conspiracy to commit extortion
and interstate travel in aid of racketeering. We will affirm.
FACTS
Alex Mussayek emigrated from Israel to the United States
in 1979. He settled in Brooklyn with his family, and
established himself as owner of a small flower and candy
business. Over several years, Mussayek was apparently
victimized by two individuals, Ike Fogel and Phillip Ben
Jacob, in separate scams. Mussayek claims to have been
first defrauded by Fogel in a transaction involving $400,000
worth of “diamonds,” which apparently later turned out to
be nothing but cubic zirconia. Attempting to recoup his
losses, Mussayek then apparently committed $140,000 to a
1. In the caption of this case and in the record, Appellant’s surname is
spelled, variously, as “Mussayek,” Mussayel,” “Mussyev,” and
“Mussayev.” Throughout our opinion we will use “Mussayek,” the
construction adopted in both parties’ briefs.
3
partnership with Ben Jacob, which ultimately dissolved
with Ben Jacob refusing to return any of Mussayek’s
investment.
Mussayek’s brief depicts a persevering immigrant trying
to live out “the classic American dream,” struggling to make
a living and support his family while being swindled by two
supposed “friends” of over $500,000. Not surprisingly, the
government paints a very different picture of Mussayek, as
a deal maker involved in a variety of illicit ventures who
sought the help of undercover agents — who he thought
were “Italian Mafioso” — in connection with several of them.
Most relevant to this appeal, Mussayek enlisted two agents
to assist with a plan carried out with another business
associate, Joseph Aharanoff, to extort money from Ben
Jacob and Fogel in furtherance of Mussayek’s “deep
commitment,” as Mussayek has termed it, to recover his
money.
Following the undercover investigation, Mussayek and
Aharanoff were indicted on charges of conspiracy to commit
extortion against Ben Jacob and Fogel.2 Pursuant to an
agreement with the government, Aharanoff pled guilty and
testified against Mussayek. At trial, the jury heard
extensive evidence relating to the conspiracy, including
numerous tape recorded conversations between Mussayek
and the agents, as well as the testimony of Aharonoff,
Mussayek himself, and both of the undercover agents,
Zyckowski and Calvarese. Aharonoff and the two agents
testified consistently that Mussayek was outraged and
preoccupied with the supposed betrayal by Fogel and Ben
Jacob and was determined that the agents should, if
necessary, break their legs or kill them. In addition, they
testified that Mussayek wanted to double his money or
obtain $1 million from Fogel, and was prepared to kidnap
his daughter. Mussayek warned the agents that Ben Jacob
had guns with silencers and agreed to pay them twenty-five
percent of their recovery, giving them a $5,000 down
2. Mussayek and Aharanoff were also indicted for money laundering
activity allegedly relating to transactions involving proceeds from illegal
drug dealings. As Mussayek was acquitted of those charges, however, we
are concerned here only with the charges relating to extortion.
4
payment. The jury further heard that Aharanoff had once
traveled to Israel, where he was later joined by Mussayek,
in an effort to locate Fogel, and that subsequently
Aharanoff and Agent Calvarese were on their way to Israel
to “complete Mussayek’s mission” when they were stopped
by the Federal Bureau of Investigation at the John F.
Kennedy International Airport in New York.
Ultimately, the jury found Mussayek guilty of conspiracy
to commit extortion and interstate travel in aid of
racketeering. On appeal Mussayek levels eight challenges to
the District Court’s handling of his trial and sentencing. We
will focus on three of his claims, all related to his
sentencing, as the remainder are fairly straightforward and
will be addressed briefly in the margin.3
The Pre-Sentence Report recommended, and the
government argued, that Mussayek’s base offense level
should be enhanced two levels under U.S.S.G. § 2B3.2(b)(1),
because it “involved an express or implied threat of death,
bodily injury, or kidnapping.” Mussayek objected, stating,
“This enhancement presumes that the victim in fact
received a threat . . . . [N]o reasonable threats were ever
communicated to any purported ‘victim’ and thus the
enhancement cannot apply.” Addendum to Pre-Sentence
Report, p. 18, ¶ 2.
Mussayek similarly objected to another proposed
enhancement, under U.S.S.G. § 2B3.2(b)(3)(B), for
“preparation to carry out a threat of . . . serious bodily
3. Contrary to Mussayek’s contentions, we conclude that: (1) the District
Court adequately instructed the jury on two occasions that the
indictment was not evidence, and it did not abuse its discretion by
refusing to give a third such instruction; (2) there was no abuse by the
District Court in curbing the questioning of a hostile witness, Aharonoff,
when the interrogation became argumentative and repetitive; (3) there
was no plain error in the District Court’s admission of evidence of
Mussayek’s involvement with a controlled substance, “khat;” (4) the
application of a sentencing enhancement under U.S.S.G. § 3B1.1(c) for
Mussayek’s supervisory role was not clearly erroneous; and (5) we lack
jurisdiction to review the District Court’s exercise of discretion in
connection with its refusal to depart downward based on family
circumstances, as it clearly considered this argument but was not
persuaded by it.
5
injury.” Mussayek contended that he told the agents to talk
to Fogel and Ben Jacob “nicely,” stating at one point, “Talk
to him nicely everything, I don’t wanna kill the guy, I don’t
wanna make him damage something.” Addendum, ¶ 3.
Mussayek’s counsel stated:
While Mr. Mussayek provided information about both
Ike Fogel and Phillip Ben Jacob, it was in order to
assist the agent in locating them and in identifying
assets. Mr. Mussayek gave information about Ike Fogel
and Phillip Ben Jacob in an effort to get his money
legally. He told Agent Calvarese where Mr. Ben Jacobs’
office was located and provided a phone number.
Addendum, ¶ 3. Counsel also argued that Aharanoff ’s
travel to Israel was for personal reasons, not to obtain
information about Fogel for the purpose of later extorting
him.
In addition to arguing against the government’s proposed
enhancements, Mussayek urged the District Court to grant
him a downward departure for victim provocation, under
U.S.S.G. § 5K2.10, based on the “[un]clean hands” of his
debtors, Fogel and Ben Jacob, i.e., their unethical and, at
least in the case of Fogel, perhaps illegal, taking of money
from him.
The District Court ruled against Mussayek on all three
sentencing issues. The court held first that the “threat”
enhancement applied, reasoning that if the conviction was
for conspiracy, the threat need not be communicated. It
noted: “If [the threat] was communicated to the person who
was supposed to carry it out, and it was in this case and
the jury so finds, then it seems to me that the argument
cannot prevail.” The District Court also applied the
“preparation” enhancement, stating:
Whether you characterize the trip to Israel as
Aharonoff was going to make the trip anyway or not,
the specific locating of the victim in Israel was clearly
directed by the defendant. That in and of itself would
seem to me clearly to be preparation to carry out the
threat.
Finally, the court had little difficulty in refusing to apply a
departure downward for victim conduct under § 5K2.10.
6
Under its view, the guideline envisioned a situation in
which the victim’s conduct was more “directly provocative,”
and “contributed to the danger presented,” whereas here
there was only a “debt owed” such that the “redress . . .
appropriate would be a lawsuit, a resort to a report to the
police.”
Mussayek now challenges the District Court’s disposition
of all three of these sentencing issues. We can find no
reversible error, and will address each argument in turn.4
I. Enhancement for Threat of Death, Bodily Injury or
Kidnapping under U.S.S.G. § 2B3.2(b)(1)
Mussayek first raises the novel question as to whether, in
order for the base offense level for conspiracy to commit
extortion to be enhanced because it “involved an express or
implied threat of death, bodily injury, or kidnapping,”
U.S.S.G. § 2B3.2(b)(1), the threat must have been
communicated to the victim. As we noted above, the
District Court relied on the fact that the underlying
conviction was for conspiracy, and the fact that the threat
was communicated to persons who were to carry it out, in
finding the enhancement to apply. Our review of the
District Court’s legal interpretation of the Sentencing
Guidelines is plenary. See, e.g., United States v. Bamfield,
328 F.3d 115, 118 (3d Cir. 2003). We will affirm the District
Court’s application of the enhancement.
The extortion guideline at issue provides for a base
offense level of 18, with the following specific offense
characteristic: “If the offense involved an express or implied
threat of death, bodily injury, or kidnapping, increase by 2
levels.” U.S.S.G. § 2B3.2(b)(1). That subsection is followed
by a listing of four other specific offense characteristics that
increase the base offense level, including “the amount
demanded or the loss to the victim;” the use, brandishing,
possession, or discharge of a firearm or other dangerous
weapon; bodily injury sustained by the victim; and
abduction or physical restraint of any person. U.S.S.G.
§§ 2B3.2(b)(2)-(b)(5). Also included is the enhancement for
4. The District Court had jurisdiction under 18 U.S.C. § 3231, and we
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
7
the preparation to carry out threats, see U.S.S.G.
§ 2B3.2(b)(3)(B)(ii), which is also at issue here and is
discussed further below.
Mussayek argues that the purpose of the guideline is to
punish more severely those who place their victims in fear
of, for instance, death or serious bodily injury, and,
accordingly, urges that an enhancement for the content of
a threat makes little sense if the threat was not
communicated. In short, he maintains that if the
enhancement is meant to redress, and punish for,
particular harms to victims caused by threatening
statements, then the enhancement should not apply where,
as here, the victims did not know about, and thus could
not have been harmed by, the statements in question.
Contrary to Mussayek’s contentions, however, the
guideline appears to be but one example of the Sentencing
Commission’s manifest desire to address dangers presented
by the defendant wholly apart from the actual damage or
harm caused. The guidelines contain numerous situations
in which the Sentencing Commission looks to, and
escalates punishment for, the danger presented, as
distinguished from the harm actually caused by an offense.
For instance, whether a defendant possessed a firearm or
other dangerous weapon during the commission of a crime
— as opposed to brandishing or using it in some way — or
whether a defendant conducted more than minimal
planning, are facts that go to the danger presented by the
defendant without, at least typically, affecting whatsoever
the harm actually caused by the crime. Yet sentences are
routinely enhanced under the guidelines for just those sorts
of circumstances. See, e.g., U.S.S.G. § 2B2.1 (providing, in
the burglary guideline, for one two-level enhancement for
“more than minimal planning” and another if “a dangerous
weapon (including a firearm) was possessed”).
Similar concerns seem to underlie § 2B3.2, the guideline
at issue here. The provision’s Application Notes refer to very
generalized types of threats, such as threats “to cause labor
problems,” U.S.S.G. § 2B3.2, cmt. 2, or to cause death or
serious bodily injury to many, as with a plan “to derail a
passenger train or poison consumer products.” Id. at cmt.
7. Such threats are seen as warranting an enhancement
8
not because additional harm is actually imposed on the
intended victims, who will likely be unaware of the threat
posed to them, but because the defendant’s conduct
presented a level of danger beyond that for which the base
level of the offense was designed.
Mussayek relies heavily on dicta in United States v.
Rainone, 32 F.3d 1203 (7th Cir. 1994), as supporting his
view that a “threat” has been made only when it has been
communicated. In Rainone, the Court of Appeals for the
Seventh Circuit considered the applicability of the provision
at issue here where the defendant made threats to extortion
victims that included threats against the victims’ family
members. Id. at 1208. The defendant apparently argued
that an enhancement was not justified because the threats
against the family members had not been directly
communicated to them. Id. The court held that it made “no
difference that the threats against the members of the
families of the extortion victims were not communicated
directly to those family members” because the “extortion
victims themselves . . . were also threatened with physical
injury.” Id. The mention of the victims’ families “merely
magnified the threats.” Id.In reaching its conclusion that the issue of
communication was irrelevant under the facts before it,
however, the court commented:
The guidelines do imply that a threat of which the
threatened person remains ignorant is not a basis for
an upward adjustment or departure, see U.S.S.G.
§ 2B3.1, Application Note 6; § 2B3.2, Application Note
2; United States v. Wint, 974 F.2d 961 (8th Cir. 1992),
and there is no indication that the victims of the
defendants’ extortions told their families about the
threats.
Id. Notwithstanding the Seventh Circuit’s dicta, the
authorities cited in Rainone in fact provide little support for
Mussayek’s position here.
First, United States v. Wint is completely inapposite.
There the Court of Appeals for the Eighth Circuit held only
that the circumstances of the threats involved there —
ongoing, sincere death threats made against an individual
9
and his family — were “sufficiently unusual” to warrant an
upward departure. Wint, 974 F.2d at 971. The court was
not presented with any question as to whether threats
needed to be communicated under § 2B3.2, nor did it even
implicitly address the issue anywhere in the opinion.
Similarly, Application Note 6 of § 2B3.1 is clearly
distinguishable. First of all, it pertains to a sentencing
enhancement for a different offense characteristic — a
“threat of death” — in connection with a different crime,
robbery. U.S.S.G. § 2B3.1(b)(2)(F). In addition, the content
of the Application Notes under the robbery guideline is very
different from the content of the Application Notes under
the extortion guideline at issue here. The enhancement for
a threat of death during a robbery, for instance,
contemplates a situation in which an offender uses phrases
like “Give me the money or I will kill you,” or “Give me the
money or else (where the defendant draws his hand across
his throat in a slashing motion),” and courts are explicitly
instructed to consider, in deciding whether to apply the
enhancement, whether the defendant’s conduct would
instill a fear of death in a reasonable victim. U.S.S.G.
§ 2B3.1, cmt. 6. In contrast, the Application Notes actually
applicable here reference very generalized threats and
“plan[s],” and at no point make any reference to the effect
on the potential victim. U.S.S.G. § 2B3.2, cmts. 2, 7. Thus,
to the extent that the guidelines might indeed be read to
“imply” that a threat of death made in connection with a
robbery needs to be communicated, little could be plausibly
inferred from that conclusion about the proper application
of enhancements under the guideline at issue here.
Application Note 2 of § 2B3.2, on the other hand, at least
concerns the correct guideline and enhancement, but the
focus of the Note is on the content of particular extortionate
threats. The Note advises that the sentencing enhancement
applies as long as the threat “reasonably could be
interpreted as one to injure a person or physically damage
property,” and includes “any comparably serious threat.”
U.S.S.G. § 2B3.2, cmt. 2. Nothing in the Note suggests that
the threat need be communicated in order to count for
enhancement purposes.
10
In fact, to the extent the Application Notes to § 2B3.2 can
be read to address the issue of communication at all, they
appear to signal precisely the opposite conclusion. As
indicated above, several refer to very generalized threats —
causing labor problems, derailing a train, or poisoning
consumer products. In factual circumstances involving
such threats, the court clearly could not assess the impact
of the threats on the intended but unidentifiable victims.
The inclusion of such situations, then, within the scope of
the guideline, strongly suggests that whether particular
intended victims — here, Fogel and Ben Jacob — were
aware of the threat is immaterial to the determination of
whether a particular threat may be the basis for enhancing
a sentence under the guideline.
Indeed, both the guideline and the Application Notes
indicate that the key to the application of this enhancement
is not, as Mussayek contends, the causation of additional
harm to victims, but is, rather, the seriousness of the
defendant’s conduct, judged by objective standards. The
Application Notes advise that the guideline applies
whenever “there was any threat, express or implied, that
reasonably could be interpreted as one to injure a person or
physically damage property, or any comparably serious
threat,” U.S.S.G. § 2B3.2, cmt. 2 (emphasis added), and the
enhancement is applied for all such offenses that “involved
an express or implied threat of death, bodily injury, or
kidnapping,” U.S.S.G. § 2B3.2 (emphasis added). Far from
focusing on the causation of actual harm or psychological
trauma to the victim, then, the guideline is specifically
concerned only with the precise nature of the defendant’s
conduct. Absent any reference to the intended victim or
victims, the guideline differentiates extortionate conduct
that involved potential damage to property from similar
conduct that involved potential physical violence, and goes
on to suggest that an “upward departure may be
warranted” when the conduct “involved the threat of death
or serious bodily injury to numerous victims.” U.S.S.G.
§ 2B3.2, cmt. 7. Despite Mussayek’s contentions to the
contrary, such distinctions are wholly logical, evidencing
the Sentencing Commission’s justified determination that
some of those threatening extortion must be punished more
11
severely than others. As the Court of Appeals for the First
Circuit has stated:
[W]e do not think it seems at all unusual that the
Sentencing Commission . . . would choose to
distinguish among various types of extortion for
sentencing purposes and, accordingly, seek to punish
extortionists who employ “express or implied threat[s]
of death, bodily injury, or kidnapping,” see U.S.S.G.
§ 2B3.2(b)(1), with greater severity than other, less
callous, practitioners of the same crime.
United States v. Jones, 997 F.2d 967, 969 (1st Cir. 1993).
In other words, “the enhancement provision [was designed]
specifically to target those who made a bad situation worse
by using ‘an express or implied threat of death, bodily
injury, or kidnapping’ as a tool of the extortion trade.” Id.(quoting U.S.S.G. § 2B3.2(b)(1)).
We can find no reason to limit the meaning of the term
“threat” as used in § 2B3.2(b)(1) to contemplate only
statements communicated to their intended victims. Here,
Mussayek’s offense clearly “involved an express or implied
threat of death, bodily injury, or kidnapping,” U.S.S.G.
§ 2B3.2(b)(1), and, accordingly, the District Court did not
err in applying the threat enhancement.5
II. Enhancement for Preparation to Carry out a
Threat of Serious Bodily Injury under U.S.S.G.
§ 2B3.2(b)(3)(B)
Mussayek next challenges the District Court’s application
of the enhancement under § 2B3.2(b)(3)(B), based on its
conclusion that Mussayek’s conspiracy to commit extortion
involved the “preparation to carry out a threat of . . .
serious bodily injury,” or “otherwise demonstrated the
ability to carry out such threat.” We review the District
Court’s factual findings for clear error, and accord “due
5. The government notes that the jury convicted Mussayek of conspiring
to commit extortion, an offense that was charged in the indictment as
involving the “wrongful use of actual and threatened force, violence and
fear.” A use of force could only have been “threatened” if there was a
“threat.” Thus, it seems that the jury here understood that a “threat”
made to someone other than the intended victim is still a threat.
12
deference” to its application of the guidelines to the facts.
See United States v. Chau, 293 F.3d 96, 99 (3d Cir. 2002).
We agree with the District Court that the enhancement was
proper under the circumstances presented here.
The District Court could easily have found that Mussayek
did more than merely make a verbal threat, but instead
made preparations to carry it out. The court alluded only to
the sending of Aharanoff to Israel, but the record contains
much more. Mussayek solicited the assistance of the agents
and discussed physical violence, including kidnapping
Fogel’s daughter and breaking the legs of both Fogel and
Ben Jacob. Mussayek and the agents met to discuss the
plan, and the agents were given physical descriptions and
background information. Mussayek paid the agents $5,000
as a down payment, arranged for Agent Calvarese to travel
to Israel, and instructed Aharanoff to help Calvarese locate
Fogel. In sum, there is overwhelming evidence that
Mussayek prepared to “carry out” his threats of serious
bodily injury, or that he had otherwise demonstrated the
ability to carry them out. See U.S.S.G. § 2B3.2(b)(3)(B).
Mussayek argues that policy reasons argue against
application of the enhancement because the “preparation”
here would never have resulted in any actual extortion,
since it was all part of a “sting” operation against him.
Again the limitation that Mussayek seeks to impress on the
applicability of the guideline is unwarranted. Contrary to
Mussayek’s view, we see the enhancement for the
“preparation” or “ability to carry out” a threat as standing
alone, punishing those who do more than merely threaten
with death, serious bodily injury, kidnaping or product
tampering. Under the plain language of the guideline, it
matters not whether a particular extortion conspiracy is
ultimately unsuccessful because it was thwarted, botched,
or simply abandoned after a remorseful offender’s change of
heart; the guideline asks only whether “the offense involved
preparation to carry out” the threat, or whether “the
participant(s) otherwise demonstrated the ability” to carry it
out. As noted above, there was certainly sufficient evidence
in the record to satisfy that standard, and, accordingly, we
13
can find no error in the District Court’s application of the
enhancement.6
III. Downward Departure for Victim Provocation
under U.S.S.G. § 5K2.10
Finally, we turn to the District Court’s refusal to depart
downward for victim provocation under § 5K2.10. If a
district court’s ruling is based on the belief that a departure
was legally impermissible, and, thus, involves an issue of
law, we have jurisdiction to review. See, e.g., United States
v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998).
Here, it is clear that the District Court concluded that the
departure did not fit this situation and was thus
impermissible.7
6. As the District Court pointed out, the offense conduct here was
conspiracy to commit extortion, not extortion itself, so the completion of
the threat in the form of actual extortion was not at issue.
7. The District Court stated:
[A]t the end of the day when you read the language of this
departure, when you read the language of this victim conduct
provision, they are talking about something that is more directly
provocative, contributed to the danger presented. That’s the
language. And I think that language connotes an immediate, if not
perhaps even physical provocation and not what we have in this
case.
. . . .
[W]hen you read this provision 5K2.10, you get a sense of a more
direct physical danger, relevant physical characteristics, size and
strength of the victim, persistence of the victim’s conduct and efforts
by the defendant to prevent confrontation, danger reasonably
perceived by the defendant, by the victim’s reputation for violence,
danger presented to the defendant by the victim.
That was not this case. In this case the redress that would be
appropriate would be a lawsuit, a resort to a report to the police.
That’s the kind of conduct that would be expected for a person in
the defendant’s position to take against these two people, Ben Jacob
and Fogel.
. . . .
I think you would have a better argument on the range, the
application where within the range this defendant should be
sentenced, but I don’t think you have sufficient to draw the
application of this, what I read as the departure conceived of by this
provision.
14
Section 5K2.10 provides that departures may be made
where “the victim’s wrongful conduct contributed
significantly to provoking the offense behavior.” U.S.S.G.
§ 5K2.10. It then instructs:
In deciding the extent of a sentence reduction, the
court should consider: a) the size and strength of the
victim, or other relevant physical characteristics, in
comparison with those of the defendant; b) the
persistence of the victim’s conduct and any efforts by
the defendant to prevent confrontation; c) the danger
reasonably perceived by the defendant, including the
victim’s reputation for violence; d) the danger actually
presented to the defendant by the victim; and e) any
other relevant conduct by the victim that substantially
contributed to the danger presented.
Id. In addition, the guideline indicates that victim
provocation departures are most often applicable when the
defendant’s offense behavior was of a violent nature, but
also provides that there may be “unusual circumstances” in
which “substantial victim misconduct,” such as “an
extended course of provocation and harassment,” could
justify a departure even in the case of a non-violent offense
such as theft or the destruction of property. Id.
We have previously noted that departures are most
clearly “contemplate[d] . . . where the victim’s conduct
posed actual, or reasonably perceived, danger to the
defendant, with an emphasis on physical danger,” and that
“[g]enerally only violent conduct . . . justifies a downward
departure.” United States v. Paster, 173 F.3d 206, 211 (3d
Cir. 1999). Yet neither our court, nor the guidelines
themselves, restrict departures to situations involving
violence or physical danger. See, e.g., United States v.
Harris, 293 F.3d 863, 872-73 (5th Cir. 2002). The key to
the viability of a claim for a downward departure for victim
provocation appears to depend on the unique facts of each
case regarding whether the requisite provocation existed.
As cases applying § 5K2.10 focus on whether, under
particular circumstances, the victim’s misconduct
contributed significantly to provoking the defendant’s
specific offense behavior, the starting point must be the
15
careful consideration of “all of the circumstances” of the
encounter in question. Paster, 173 F.3d at 211.
Exemplifying this principle is the Supreme Court’s decision
in Koon v. United States, 518 U.S. 81 (1996). Koon arose
out of the Rodney King excessive force incident that
occurred in Los Angeles in 1991. Notably, the District Court
had made a factual finding that at the time the defendants
actually crossed the line from lawful conduct to unlawful,
excessive force — the offense behavior in question — King
no longer “posed [an] objective threat, and the defendants
had no reasonable perception of danger.” Id. at 102. Yet the
Supreme Court affirmed the downward departure for victim
provocation. The Court stated that it “would be a startling
interpretation and contrary to ordinary understandings of
provocation” to find that King’s extended course of
misconduct — which included “driving while intoxicated,
fleeing from the police, refusing to obey the officers’
commands, attempting to escape from police custody, etc.”
— provoked the officers “lawful force but not the unlawful
force that followed without interruption.” Id. at 102, 104. “A
response,” the Court noted, “need not immediately follow an
action in order to be provoked by it.” Id. at 104. Although
King was eventually subdued, the overall atmosphere
remained volatile, and the officers’ offense behavior
“followed within seconds” of King’s misconduct, during the
course of a “dynamic arrest situation.” Id. at 102, 104.
Taking into account all of these circumstances, the Court
held that the District Court did not err in holding that
King’s wrongful conduct contributed significantly to
provoking the officers’ excessive force, and granting a
downward departure accordingly. Id. at 104-05.
The precise contours of the departure, however, are
difficult to define. It does appear that the mere fact that the
victim’s misconduct was a cause of the defendant’s offense
behavior, in the sense that the offense behavior may not
have been committed but for the victim’s conduct, is not
enough; downward departures are authorized under the
guideline only where the victim’s misconduct “contributed
significantly to provoking” the defendant’s offense behavior.
Cf. United States v. Corrado, 304 F.3d 593, 615 (6th Cir.
2002) (noting distinction between a “but-for cause” and
provocation). We perceive the distinguishing factors to lie in
16
the specific nature of both the victim’s misconduct and the
defendant’s offense behavior, and the precise nature of the
relationship between the two. To that end, it is useful to
focus on the straightforward meaning of the term
“provocation” itself, as provocation necessarily involves a
distinct element of incitement, arousal, or the like. See
Black’s Law Dictionary 1225 (6th ed. 1990) (“The act of
inciting another to do a particular deed. That which
arouses, moves, calls forth, causes, or occasions. Such
conduct or actions . . . as tend to arouse rage, resentment,
or fury . . . .”); cf. United States v. LeRose, 219 F.3d 335,
340 (4th Cir. 2000) (indicating a lack of provocation where
the victim “in no way goaded” the defendant’s specific
offense behavior).
In addition, courts have often relied heavily on the
concept of proportionality, that is, that the necessary
provocation only exists if the provoked offense is
proportional to the provoking conduct. This reasoning
makes sense, as it would be exceedingly difficult to apply
§ 5K2.10 to a situation in which the offense behavior was
excessively disproportional to the victim’s misconduct.
The need for proportionality in the response is “evidenced
by the factors that § 5K2.10 instructs the courts to
consider,” including the efforts made by the defendant to
avoid confrontation, and the danger actually presented or
reasonably perceived to be presented by the victim. United
States v. Morin, 80 F.3d 124, 128 (4th Cir. 1996). Further,
§ 5K2.10 explicitly connects the victim’s misconduct not
just to the defendant’s response in a broad sense, but to
the defendant’s specific offense behavior. As the Fifth
Circuit has noted, “ ‘the offense behavior’ is an important
phrase” as “it signifies that there is a relationship between
the type of offense behavior and the type of victim
misconduct that would ‘contribute[ ] significantly to
provoking’ it.” Harris, 293 F.3d at 872-73. In short, certain
less serious victim misconduct may be sufficient to provoke
some types of lesser offense behaviors, but insufficient to
provoke more severe conduct on the part of the defendant.
See, e.g., id. at 872-74.
In Paster, for instance, we considered the disturbing case
of a defendant who viciously stabbed his wife to death soon
17
after she divulged a number of extramarital affairs. In the
District Court the defendant sought, unsuccessfully, a
downward departure under § 5K2.10. Paster, 173 F.3d at
210-11. Taking into account “all of the circumstances” —
such as the defendant’s initiation of the fatal confrontation,
the fact that his wife posed no reasonable threat as he
attacked her when she was emerging from the shower, and
that the defendant already knew that his wife was
unfaithful — we found “ample record evidence to support”
the District Court’s denial of a downward departure. Id. at
211-12 & 212 n.3. Even if the wife’s infidelities constituted
misconduct, and even if that misconduct could have
prompted some response by the defendant, the defendant’s
offense behavior — the brutal murder of his unarmed wife
— “was grossly disproportionate to any provocation.” Id. at
212.
Several of our sister Courts of Appeals have also explicitly
expressed a concern for proportionality. The Court of
Appeals for the Fifth Circuit, for example, has recently held,
in a thoughtful and persuasive discussion of the issue, that
“[t]aken as a whole, Section 5K2.10 evinces a concern that
the offense behavior be not excessively disproportionate to
the provocation.” Harris, 293 F.3d at 873. Similarly, in
United States v. Blankenship, 159 F.3d 336 (8th Cir. 1998),
the Court of Appeals for the Eighth Circuit stated that
§ 5K2.10 “manifests a concern for proportionality in the
defendant’s response,” and held there that the defendant’s
claim for a departure was meritless since his “response was
disproportionate to the threat posed by the victim’s
conduct.” Id. at 339; id. (“[The defendant’s] response . . .
simply was not proportionate to the threat.”); United States
v. Shortt, 919 F.2d 1325, 1328 (8th Cir. 1990) (stating that
“[a] concern for the proportionality of the defendant’s
response is manifested by the terms of § 5K2.10” and
reversing the District Court’s downward departure). The
Court of Appeals for the Fourth Circuit also agrees. See
Morin, 80 F.3d 124 at 128.
Turning to the facts at hand, Mussayek characterizes the
District Court’s interpretation of § 5K2.10 as overly narrow
and as holding as a matter of law that to qualify the victim
provocation must be “immediate” and “physical.” But
18
Mussayek does a disservice to the District Court’s
thoughtful analysis. The District Court did in fact concern
itself with the specific nature and relationship of the victim
misconduct and offense behavior at issue here, as the
guideline requires, and found that Mussayek’s conspiracy
to commit extortion was not provoked by the two acts of
swindling in the way contemplated by the departure
provision. The Court concluded that there was a lack of
immediacy and that Mussayek’s response was not
proportional, noting, for example, that “[i]n this case the
redress that would be appropriate would be a lawsuit, a
resort to a report to the police. That’s the kind of conduct
that would be expected for a person in the defendant’s
position to take against these two people, Ben Jacob and
Fogel.”
We agree with the District Court that the circumstances
here simply do not evidence provocation as required by
§ 5K2.10. Mussayek was the apparent victim of Fogel’s
fraud, and Ben Jacob’s unethical — at the very least —
behavior with regard to their partnership. But there is no
evidence that Fogel or Ben Jacob somehow provoked
Mussayek into attempting to extort money from them. Any
wrong done to him was economic in nature,8 and took place
without the immediacy, or the highly-charged context of
8. We note two other cases in which the supposed provocation was
essentially economic in nature. In United States v. Bigelow, 914 F.2d 966(7th Cir. 1990), the Court of Appeals for the Seventh Circuit reversed the
District Court’s grant of a departure for victim provocation where the
defendants were convicted on extortion and related charges for a number
of threats made to the victim arising out of the victim’s failure to satisfy
a debt. Id. at 969, 975. The court held that the victim simply had not
provoked the defendants’ extortion of him as contemplated by § 5K2.10.
Id. at 975. By contrast, in United States v. Dailey, 24 F.3d 1323 (11th
Cir. 1994), the Court of Appeals for the Eleventh Circuit upheld the
District Court’s grant of a departure where the defendant was convicted
of making a single threatening phone call after an individual defrauded
him of tens of thousands of dollars. Id. at 1324, 1328. The court there
was unwilling, under a clear error standard, to reverse the District
Court’s finding that the defendant’s conduct had been provoked. Id. at
1327-28. These contrary results only amplify the conclusion that each
§ 5K2.10 case must be decided on its particular facts. See, e.g., Dailey,
24 F.3d at 1327-28 (distinguishing Bigelow on its facts).
19
tension, emotional build-up, or arousal, that typically
exemplifies the provocative situation. See Black’s Law
Dictionary, 1225 (6th ed. 1990) (defining provocation);
Paster, 173 F.3d at 211-212 (affirming that no departure is
available where the defendant brutally murdered his
unarmed wife after she divulged her infidelity); U.S.S.G.
§ 5K2.10 (stating that an “extended course of provocation
and harassment” could justify a departure for nonviolent
offense conduct); see also Koon, 518 U.S. at 102-105(upholding departure for excessive force during arrest
situation); Harris, 293 F.3d at 872-76 (same); United States
v. Tsosie, 14 F.3d 1438 (10th Cir. 1994) (upholding
departure where the defendant fatally stabbed the victim
during a physical altercation moments after learning that
the victim was having an affair with his wife); United States
v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989) (upholding
departure where the defendant stabbed the victim
immediately after the victim verbally abused and publicly
humiliated her); United States v. DeJesus, 75 F. Supp. 2d
141, 144-46 (S.D.N.Y. 1999) (granting departure where the
defendant set out to attack the victim just after the victim
seriously assaulted the defendant’s pregnant girlfriend and
threatened her life).
Additionally, Mussayek’s response took place long after
the alleged scams; he did not react within days, or even
weeks, but many months — and in the case of Fogel, nearly
a year — later. Indeed, the response involved extensive
scheming and planning: the discussions with the agents
took place over several months, information was gathered
about the intended victims, and Aharanoff and Mussayek
flew to Israel to conduct what was in essence
reconnaissance activity. In short, Mussayek’s offense
behavior was not, as one court has well put it, “directly
responsive to the immediate provocation,” but was, rather,
the epitome of “a calculated planned response.” DeJesus,
75 F. Supp. 2d at 146; see also, e.g., Blankenship, 159
F.3d at 339 (rejecting claim for departure where the victim
started the confrontation but defendant left and later
returned with a loaded gun); Morin, 80 F.3d at 128(reversing departure where the defendant made plans to
hire someone to murder his lover’s husband after learning
he was abusing her); Shortt, 919 F.2d at 1328 (reversing
20
departure for a defendant who built a pipe bomb and put
it in his wife’s lover’s truck); Bigelow, 914 F.2d at 975(reversing departure for defendants who made extensive
extortionate threats to victim who owed them money).
Further, Mussayek’s offense behavior was “grossly
disproportionate to any provocation” on the part of his
victims. Paster, 173 F.3d at 212. It is to be expected that
one who suffered the frauds apparently suffered by
Mussayek would undertake efforts to recover the money.
But we certainly cannot conclude that the District Court
erred in finding that Mussayek’s conduct — attempting to
hire others to threaten, intimidate, kidnap, assault, shoot,
and even murder to achieve his ends — was not a
proportional response. In response to past economic
wrongs, Mussayek committed himself to an extensive plan
of extortion, authorizing the use of grave and even deadly
force to recover his losses. Essentially, Mussayek now seeks
to transform a mere but-for cause of his conduct into
significant provocation. The District Court did not err in
holding that this is not the type of situation envisioned by
§ 5K2.10.
CONCLUSION
The District Court correctly concluded that Mussayek
was eligible for sentence enhancements for the content of
his threats, and for his preparations to carry out those
threats. In addition, it did not err in holding that Mussayek
was ineligible for a downward departure for victim
provocation. In light of the foregoing, we will AFFIRM.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit