United States v. Lakhani

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-16-2007
USA v. Lakhani
Precedential or Non-Precedential: Precedential
Docket No. 05-4276
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4276
UNITED STATES OF AMERICA
v.
HEMANT LAKHANI,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 03-cr-00880)
District Judge: Honorable Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
November 28, 2006
Before: RENDELL and AMBRO, Circuit Judges
PRATTER,* District Judge
*
Honorable Gene E.K. Pratter, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
(Opinion filed: March 16, 2007)
Henry E. Klingeman, Esquire
Anna G. Cominsky, Esquire
Klingeman Law
10 James Street
Florham Park, NJ 07932
Counsel for Appellant
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
Sabrina G. Comizzoli
Assistant U.S. Attorney
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Helmant Lakhani appeals his conviction by a jury on five
2
charges for his role in the attempted importation of shoulder-
fired, surface-to-air missiles.1 He received a sentence of 47
years in prison. Lakhani claims entrapment by the Government
and a violation of constitutional due process stemming from its
investigation. He also asserts error relating to juror misconduct
during his trial as well as the unreasonableness of his sentence.
We conclude that a reasonable juror could have found that
Lakhani was not entrapped and that the District Court was
correct in ruling that the Government’s law enforcement efforts
did not offend due process. We also perceive no error in the
Court’s ruling regarding juror misconduct or in the sentence it
imposed.
I. Facts
Lakhani, now 71 years old, was born in India but resided
in London. He was a trader (i.e., a “middleman”) and didn’t
limit himself in scope—groceries, rice, textiles, oil. In addition
to these benign commodities, Lakhani also traded in weapons,
which had become his primary business in recent years. Though
arms trading carries sinister connotations, it can be a legitimate
business. And indeed, Lakhani had previously engaged in legal
1
18 U.S.C. § 2339A (count I, attempting to provide material
support to terrorists); 22 U.S.C. § 2778 (count II, illegal
brokering of controlled munitions); 18 U.S.C. § 1956 (counts III
and IV, money laundering); 18 U.S.C. § 542 (count V,
attempted importation by means of false statements).
3
arms transactions. In this case, however, he didn’t discriminate
among customers, illegality notwithstanding.
Muhammad Habib Ur Rehman is a native of Pakistan and
a professional informant. He began his informing career by
working for the Pakistani government as it combated that
country’s drug trade. Eventually, Rehman was introduced to the
U.S. Drug Enforcement Agency and then served as one of its
informants on international drug trading and terrorism. Along
the way, Rehman informed on one-too-many people, and his
U.S. handlers were forced to extract him and his family from
Pakistan. In the United States, where Rehman received asylum,
he continued working as an informant for the DEA and, then,
the Federal Bureau of Investigation. Rehman estimates that he
has received about $400,000 from the Government in his 19
years of informing. For reasons unclear, Rehman was deemed
“untrustworthy” in July 2001 and let go from Government
service.2
Abdul Qayyum is a suspected terrorist now living in
Dubai, U.A.E., and is believed to have been involved in a series
of 1993 bombings in India known as the “Mumbai blasts.” He
2
Lakhani’s attorney correctly noted during closing arguments
that, in order to convict Lakhani, the jury had to credit
Rehman’s testimony. By their guilty verdict, they did. And
therefore, so do we. See United States v. Jackson, 443 F.3d 293,
298–99 (3d Cir. 2006).
4
apparently knew Lakhani from a run-in with one of Lakhani’s
former officemates. Qayyum met Rehman in the early summer
of 2001 through long-time family contacts. At the time,
Rehman, who was still working as an informant for the FBI, told
Qayyum that “in America I am a powerful person. And if you
need any type of assistance or help I am ready to give [it to]
you.”
Shortly after the September 11th attacks in 2001,
Qayyum told Rehman about Lakhani. The subject of Lakhani’s
arms trading was raised, but Qayyum did not ask Rehman to
pursue anything in that regard. Shortly thereafter, though,
Lakhani spoke with Rehman. In their initial conversation,
Lakhani explained that Qayyum had told him Rehman “was a
powerful person in America, [and] if you need any stuff, if you
want to do any business[,] you can contact this man.” Rehman
affirmed Qayyum’s statement and offered that if Lakhani
“want[ed] to buy something from America . . . [,] I can help
you.” The two also discussed Lakhani’s many businesses,
including arms trading.
Rehman communicated with the FBI that same day and
was once again put into Government employ in an undercover
operation.3 Rehman held himself out to Lakhani as a
3
The Government recorded hundreds of phone conversations
and several face-to-face meetings between Lakhani and Rehman
from January 2002 through August 2003. These recordings
5
representative of the Ogaden Liberation Front. The OLF is an
actual, Somalia-based terrorist group that operates in East Africa
and the Middle East. If Lakhani did not know this fact already,
Rehman made him aware of it in their conversations. Rehman
told Lakhani that the OLF needed weapons and asked to use
Lakhani’s services. Lakhani agreed, and thus began a 22-month
odyssey spanning oceans and continents. Rather than recount
the tale in tedium, we relate only the significant events and
themes that emerge from the record.4
In the initial recorded meetings and conversations
between Rehman and Lakhani, Rehman said that the OLF was
interested in many types of armaments, and Lakhani always
responded with assurances such as “They are available,” or “I
will obtain it.” 5 Rehman eventually made known that the “main
thing” the OLF needed from Lakhani was shoulder-fired
made up much of the evidence against Lakhani and were the
subject of significant portions of the trial testimony.
4
As we reviewed the twelve-volume record in this case, we
increasingly agreed with one of the foreign witnesses who
remarked at one point, “[M]uch of this has become
incomprehensible even more.” Nevertheless, we do our best to
set out the facts in the light most favorable to the jury verdict, as
we must. Jackson, 443 F.3d at 298–99.
5
Incredibly, Lakhani even responded in the same manner to
an inquiry about acquiring submarines.
6
(“Stinger”) missiles. At the inception of the scheme, Lakhani
perhaps thought that Rehman wanted the missiles for use in
Africa, but over time it became clear that an attack on civilian
airliners in the United States was also one of Rehman’s goals.
At no time could Lakhani have reasonably thought that the
proposed arms deal was legal,6 and there was never doubt that
the missiles were to be shipped into the United States.
Lakhani endorsed the deal enthusiastically, often
speaking about it as the beginning of a long-term, arms-trading
relationship with Rehman. At first, though, Lakhani thought the
requested quantity of missiles too low to be worth his while and
pressed Rehman on the issue. The two eventually worked out
an agreement whereby Lakhani would first import one missile
as a sample, with the expectation that larger orders would
follow.
Lakhani’s search for a missile supplier apparently began
with a company called Ukrspetsexport, a state-owned arms
manufacturer in Ukraine with which he previously had done
legitimate deals. During the course of the investigation, Lakhani
spoke often of his arms-related connections in the Ukraine and
6
Some months into the operation, an Israeli tourist flight in
Kenya was fired upon at takeoff with a shoulder-fired missile of
similar make to the ones Lakhani sought for the OLF. He
congratulated Rehman (even though the attack was
unsuccessful), apparently thinking that the OLF was responsible.
7
made about a dozen self-financed trips to the country. Every
time Rehman inquired about Lakhani’s progress—and it was
regularly—Lakhani assured him that the missile would soon be
available, often as soon as the next week. It never happened.
To be sure, though, something was happening on
Lakhani’s end of the deal. Several times he faxed information
to Rehman detailing the specifications for the IGLA missile
system, which is the Russian counterpart to the American
Stinger missile. One such fax was sent by Laberia Co., Ltd, and
quoted a price of $87,000 per missile. Laberia is based in
Cyprus and has offices in Kiev and Moscow. Lakhani was
steered to Laberia by Ukrspetsexport because, he said, it is
involved in the darker side of international arms trading.
Lakhani reported that he saw “the merchandise” on one of his
many visits to the Ukraine.
Lakhani eventually began to press Rehman for a down-
payment on the missile, but Rehman could not produce it
because the FBI had not yet made money arrangements. This
caused Lakhani obvious frustration: “If you want to leave it [the
deal], I don’t mind. . . . Yes, I have spent too much time. How
many times I went there.” The FBI finally gave Rehman the
money, though, and Lakhani told him how to send it along so
that it would look “clean” once it got to London. There were
two such transfers, each involving an elaborate laundering
scheme: Rehman was to give the money to Yehuda Abraham, a
jeweler in Manhattan who also owned a money transfer
8
business. Lakhani told Rehman that he would recognize
Abraham upon the presentation of a bill with a specific serial
number. Abraham then sent the money to accounts held in
Hong Kong and Switzerland, which Lakhani’s associates could
access in London. These machinations, though, apparently did
nothing but earn Lakhani two money laundering charges, as the
record does not indicate where the money actually went, and in
the end Laberia did not provide Lakhani with a missile.
By January 2003, Lakhani’s trips to the Ukraine may not
have been successful in finding a missile, but they certainly had
attracted the attention of the Russian Federal Security Services.
One of its informants reported that Lakhani had signed a
contract with a representative of Laberia, Sergey Pyatak, for
help in locating a missile. Rather than let the arrangement get
too far—and, initially, unbeknownst to the FBI—the Russians
decided to infiltrate the deal. Russian and American authorities
soon began cooperating and designed a mock missile for
Lakhani—fully operational electronically, but filled with sand
instead of explosives. They then arranged a meeting with
Lakhani to complete the sale.
Lakhani, Rehman, and Pyatak all traveled to Moscow in
July 2003 to meet with two Russians (undercover law
enforcement officials). During the discussions, Lakhani signed
a promissory note (in his real name) in the amount of $70,000
for “goods and parts,” as well as a contract for “dental medical
9
equipment” under the name “John Smith.” 7 The group then
traveled to the port at St. Petersburg to see the fake missile onto
a ship and off to the United States. In reality, even the box
loaded onto the ship was not as it appeared: it did not contain the
fake missile. Instead, a representative of the FBI took it to the
United States by plane (a private flight, we trust).
The next time Lakhani saw the missile was at a meeting
with Rehman at a hotel in New Jersey overlooking the Newark
airport. The missile was sitting on a sofa in the middle of the
room. Lakhani, in words truer than he knew, remarked, “I can’t
believe how all of this came about.” Still the eager salesman, he
offered to arrange training for up to 50 people on the missile’s
operation and continued to make arrangements for additional
shipments. As Rehman stood with the missile on his shoulder,
pointed out the hotel window toward the airport tarmac, Lakhani
7
Accompanying all international shipments—mainly for tax
purposes, but also for security reasons—is a bill of lading that
states the contents of the cargo. After considerable discussion
as to how the missile might be slipped past U.S. customs
officials and border security, the bill of lading for the missile
prepared by Lakhani said simply “dental equipment.”
According to the agreement between Lakhani and Rehman, the
former would be in charge of shipping the missile to the United
States, and the latter would make arrangements to clear it
through customs. Lakhani did suggest, though, that Rehman use
a particular importer and advised that customs officials would
need to be bribed.
10
remarked, “[I]f we strike fifty at one time, simultaneously, it
will f--- their mother. . . . It will shake them. Then they will
run. . . . Strike simultaneously at . . . whatever time you decide.
All at once in different cities at the same time. . . . They will
think the war has started.” Lakhani was arrested that day.
II. Discussion
Lakhani raises four arguments on appeal. First, he asserts
that no reasonable juror could have concluded that he was not
entrapped. Relatedly, Lakhani argues that the Government’s
involvement in the crime was so outrageous as to violate the
Due Process Clause of the Fifth Amendment to the Constitution.
Third, he asserts that the District Court erred by not
investigating alleged juror misconduct. Finally, Lakhani
contests the reasonableness of his 47-year prison sentence.
A. Entrapment and Due Process
Entrapment and its related due process defense are based
on the notion that it “serves no justifying social objective” for
the Government to “creat[e] new crime for the sake of bringing
charges against a person [it] had persuaded to participate in
wrongdoing.” United States v. West, 511 F.2d 1083, 1085 (3d
Cir. 1975).8 Despite their common intellectual origin, however,
8
See also United States v. Archer, 486 F.2d 670, 677 (2d Cir.
1973) (Friendly, J.) (“Prosecutors and their agents naturally tend
11
the two defenses are not identical and require distinct inquiries
to apply properly. On the one hand, the defense of due process
focuses exclusively the conduct of the Government. If that
conduct is “so outrageous” as to be “shocking to the universal
sense of justice,” then the Due Process Clause can function as
an “absolut[e] bar [on] the [G]overnment from invoking judicial
processes to obtain a conviction.” United States v. Russell, 411
U.S. 423, 431–32 (1973). The defense of entrapment, on the
other hand, focuses on the defendant himself: if the defendant
was predisposed to commit the crime, then it cannot be said that
the Government is responsible, notwithstanding the
egregiousness of its conduct. Id. at 432–36. 9
to assign great weight to the societal interest in apprehending
and convicting criminals; the danger is that they will assign too
little to the rights of citizens to be free from government-
induced criminality.”).
9
The concept of “entrapment” is not of ancient pedigree. See
Jonathan C. Carlson, The Act Requirement and the Foundations
of the Entrapment Defense, 73 V A. L. R EV. 1011, 1013 (1987)
(referring to the entrapment defense as “remain[ing] at a
formative stage”). The Supreme Court first recognized
entrapment as a valid defense in Sorrells v. United States. 287
U.S. 435 (1932). In Sorrells, however, there was sharp
disagreement among the Justices on its proper legal basis.
Some, led by Justice Owen Roberts, argued that the
defense of entrapment should be grounded in the inherent power
of a court to “protect[] . . . its own functions” and “preserv[e]
12
. . . the purity of its own temple.” Id. at 457. This approach
focused the inquiry on governmental action and considered
whether it was sufficiently “revolting.” Id. at 454. Another
approach—adopted by the Sorrells majority—framed the
question as one of statutory interpretation. This approach was
based on the conclusion that Congress would not have enacted
a statute whereby “its process of detection and enforcement
should be abused by the instigation by government officials of
an act on the part of persons otherwise innocent in order to lure
them to its commission and to punish them.” Id. at 448. Framed
in this way, the focus of the inquiry became the defendant
himself—specifically, his predisposition. If a defendant is
predisposed to commit the crime charged, then the defense of
entrapment is not available to him—no matter what the
Government’s actions may have been.
It was not until two 1970s cases, Russell (cited in the
text) and Hampton v. United States, 425 U.S. 484 (1976), that
the law was settled as described above (i.e., two distinct
defenses of entrapment and due process). The Court in Russell,
by a 5-to-4 vote, reaffirmed that the defendant-focused approach
to the entrapment defense was the proper one. 411 U.S. at
432–36. However, in the course of its discussion, the Court
offered the following caveat: “While we may some day be
presented with a situation in which the conduct of law
enforcement agents is so outrageous that due process principles
would absolutely bar the [G]overnment from invoking judicial
processes to obtain a conviction, the instant case is distinctly not
of that breed.” Id. at 431–32 (emphasis added, citation omitted).
13
Lakhani raises both defenses on appeal, but neither are
compelled by the facts of this case.
1. Entrapment
This statement indicated a possibility that if the
Government’s actions were sufficiently outrageous, then due
process would step in where entrapment could not. That
possibility was confirmed in Hampton. Justice Powell, writing
for himself and Justice Blackmun (providing two necessary
votes for the Court’s judgment), explained that he did not
believe the law to preclude the notion that “fundamental fairness
inherent in the guarantee of due process [might] prevent the
conviction of a predisposed defendant.” Hampton, 425 U.S. at
492 (Powell, J., concurring). Rather, he believed that the
defense of “[e]ntrapment should now be employed as a term of
art limited to [predisposition],” id. at 492 n.2, and that either a
court’s supervisory power or due process “could support a bar
to conviction” where the defendant was predisposed, but the
Government’s actions were nevertheless “outrageous” and
violated fundamental fairness, see id. at 492–95 & n.6 (Powell,
J., concurring).
It is Justice Powell’s conception of the doctrine and terms
that our Court has employed since Hampton: “entrapment”
focuses on the predisposition of the defendant to commit the
crime, whereas “due process” focuses on the Government’s
conduct. See United States v. Nolan-Cooper, 155 F.3d 221 (3d
Cir. 1998); United States v. Beverly, 723 F.2d 11 (3d Cir. 1983);
United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (en banc);
United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).
14
As noted above, “[t]he element of non-predisposition to
commit the offense is the primary focus of an entrapment
defense.” United States v. Fedroff, 874 F.2d 178, 182 (3d Cir.
1989); see United States v. Gambino, 788 F.2d 938, 944 (3d Cir.
1986); Jannotti, 673 F.3d at 597. It is a “‘relatively limited
defense’ that may defeat a prosecution only ‘when the
Government’s deception actually implants the criminal design
in the mind of the defendant.’” Fedroff, 874 F.2d at 181
(quoting Russell, 411 U.S. at 435–36). Once properly raised by
the defendant,10 “the [G]overnment has the burden to disprove
the whole (entrapment) defense beyond a reasonable doubt.”
Jannotti, 673 F.2d at 597 (internal quotation marks omitted). In
Gambino, we agreed with the Second Circuit Court of Appeals
in noting three ways in which the Government may do so: “‘(1)
an existing course of criminal conduct similar to the crime for
which the defendant is charged, (2) an already formed design on
the part of the accused to commit the crime for which he is
charged, or (3) a willingness to commit the crime for which he
is charged as evidenced by the accused’s ready response to the
inducement.’” 788 F.2d at 945 (quoting United States v.
Viviano, 437 F.2d 295, 299 (2d Cir. 1971)). We have also
10
To do so, a defendant must produce sufficient evidence of
inducement on the part of the Government and a lack of
predisposition on his own part. See Mathews v. United States,
485 U.S. 58, 63 (1988); United States v. Wright, 921 F.2d 42, 44
(3d Cir. 1990). The Government does not contest that Lakhani
met these requirements.
15
suggested several (somewhat overlapping) factors for
consideration when making a determination on predisposition:
“the character or reputation of the defendant,
including any prior criminal record; whether the
suggestion of the criminal activity was initially
made by the Government; whether the defendant
was engaged in the criminal activity for profit;
whether the defendant evidenced reluctance to
commit the offense, overcome only by repeated
Government inducement or persuasion; and the
nature of the inducement or persuasion supplied
by the Government.”
Fedroff, 874 F.2d at 184 (quoting United States v. Reynoso-
Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977)). Simple solicitation
by the Government is not inducement. United States v. Marino,
868 F.2d 549, 551–52 (3d Cir. 1989).
“[A]lthough there may be instances where the undisputed
facts establish the entrapment defense as a matter of law . . . ,
[it] is generally a jury question.” Jannotti, 673 F.2d at 597
(citations omitted). When a jury has rejected the entrapment
defense, we “must view the evidence in the light most favorable
to the prosecution, and resolve all reasonable inferences
therefrom in its favor. . . . Viewing the evidence in this light,
[we] must uphold the jury’s verdict unless no reasonable jury
could conclude beyond a reasonable doubt that the defendant
16
was predisposed to commit the offense for which he was
convicted.” Id. at 598 (citations omitted).
Given this, we can easily conclude that the jury’s
rejection of Lakhani’s entrapment defense is supported by the
evidence presented at trial. The Government’s evidence fits
mostly into the third method of showing Lakhani’s
predisposition: “a willingness to commit the crime for which he
is charged as evidenced by the accused’s ready response to the
inducement.” Gambino, 788 F.2d at 945.11 The record is replete
with examples of Lakhani’s eagerness to obtain a missile for
Rehman and the OLF. Even though the Government initiated
this illegal arms deal, Lakhani’s “ready response” to its
11
The Government also argues that it proved Lakhani’s
predisposition by showing a prior course of similar criminal
conduct. See Gambino, 788 F.2d at 945. It would be more
difficult to affirm Lakhani’s conviction on that ground alone.
True, the Government introduced evidence showing Lakhani’s
knowledge of, and connection with, various arms companies.
There was scant evidence, however, that any of Lakhani’s
activities with those companies was illegal, as it must be in
order to prove predisposition under that prong. See id.
(speaking of a prior “course of criminal conduct”). In fact, the
only consummated transaction mentioned at trial was a legal one
between Ukrspetsexport and the government of Angola. In his
testimony, Rehman briefly mentioned that Lakhani indicated
that some of his prior arms dealings were under the table, but
this evidence was not developed to any significant degree.
17
solicitation is amply demonstrated by his multiple, self-financed
trips to the Ukraine in search of a missile. This alone would be
enough for the jury to reject Lakhani’s entrapment defense and
for us to affirm his conviction.
But there is more. Repeatedly over the course of the
investigation—including at their very first meeting—Lakhani
eagerly told Rehman that the missile “is available. . . . You will
get it. I will obtain it.” Not only that, but Lakhani pushed
Rehman to order more missiles in order to earn a higher profit:
“[T]he quantity seems to be very small. . . . If I have to take
this risk, better if a good quantity comes out.” This enthusiasm
continued until the day Lakhani was arrested, when the missile
had finally arrived on the hotel couch and he sought to arrange
the next shipment. Moreover, other than the missile’s actual
transportation and border crossing, Lakhani accomplished many
technical aspects of the deal himself, without the suggestion or
aid of the Government. This included, not insignificantly, the
entire money laundering scheme and fraudulent bill of lading.
No piece of evidence indicates a reluctance on Lakhani’s
part to complete the illegal arms deal; indeed, everything
demonstrates the opposite. Therefore, a reasonable jury could
have concluded that the Government proved Lakhani’s
predisposition (i.e., he showed a “willingness to commit the
crime” by showing his “ready response to the inducement”). We
will not disturb the jury’s determination that Lakhani was not
entrapped by the Government.
18
2. Due Process
“[T]he judiciary is extremely hesitant to find law
enforcement conduct so offensive that it violates the Due
Process Clause.” United States v. Voigt, 89 F.3d 1050, 1065 (3d
Cir. 1996). We have said that this principle is to be invoked
only in the face of “the most intolerable government conduct,”
Jannotti, 673 F.2d at 608—not “‘each time the government acts
deceptively or participates in a crime that it is investigating,’”
Nolan-Cooper, 155 F.3d at 231 (quoting United States v.
Mosely, 965 F.2d 906, 910 (10th Cir. 1992)). Moreover, due
process should not be used in this context “‘merely as a device
to circumvent the predisposition test [of] the entrapment
defense.’” Id. (quoting Mosely, 965 F.2d at 910); see Jannotti,
673 F.2d at 608 (“We must be careful not to undermine the
[Supreme] Court’s consistent rejection of the objective test of
entrapment by permitting it to reemerge cloaked as a due
process defense.”). In this spirit, we have been “admonished”
not to “exercise ‘a “Chancellor’s foot”’ veto over law
enforcement practices of which [we might] not approve.”
Beverly, 723 F.2d at 12–13 (quoting Russell, 411 U.S. at 435).
Precedent in the three decades since Hampton indicates
that courts have heeded these admonitions. As the First Circuit
Court of Appeals has noted, “[t]he banner of outrageous
misconduct is often raised but seldom saluted.” United States
v. Santana, 6 F.3d 1, 4 (1st Cir. 1993) (“[C]ourts have rejected
its application with almost monotonous regularity.”). The
19
defense has been called “moribund,” id., and “hanging by a
thread,” Nolan-Cooper, 155 F.3d at 230. Indeed, our Court is
alone in having recognized a violation of due process as set out
by Justice Powell in Hampton. See Nolan-Cooper, 155 F.3d at
224, 230 (citing United States v. Twigg, 588 F.2d 373 (3d Cir.
1978)).
Still, the defense is available in this Circuit, see Voigt, 89
F.3d at 1064, as it theoretically is in at least seven others, see
United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992)
(collecting cases). The only relevant question for us, therefore,
is whether this is a proper case for its application. For the
defense to apply, the Government’s conduct must have rendered
the prosecution of the defendant fundamentally unfair. See
Hampton, 425 U.S. at 494 n.6 (Powell, J., concurring). As we
have quoted before,
“[a]lthough the requirement of outrageousness has
been stated in several ways by various courts, the
thrust of each of these formulations is that the
challenged conduct must be shocking, outrageous,
and clearly intolerable . . . . The cases make it
clear that this is an extraordinary defense reserved
for only for the most egregious circumstances.”
Nolan-Cooper, 155 F.3d at 230–31 (alteration in original)
(quoting Mosely, 965 F.2d at 910). We have noted that “courts
have experienced considerable difficulty in translating
20
‘outrageous misconduct’ into a defined set of behavioral
norms.” Id. at 230. This does not relieve us of the obligation to
enforce the bounds of constitutional acceptability, however. As
noted by Justice Powell in his Hampton concurrence, “[t]he fact
that there is sometimes no sharply defined standard against
which to make these judgments is not itself a sufficient reason
to deny the federal judiciary’s power to make them when
warranted by the circumstances.” 425 U.S. at 494 n.6. This we
undertake to do.12 Because outrageous government conduct, a
constitutional claim, is a mixed question of law and fact, “[w]e
exercise plenary review over the district court’s legal
conclusions, and review any challenges to the court’s factual
findings for clear error.” Nolan-Cooper, 155 F.3d at 229; see
Voigt, 89 F.3d at 1064.
At Lakhani’s sentencing hearing, the District Court first
12
The Government argues, citing United States v. Pitt, 193
F.3d 751 (3d Cir. 1999), that because Lakhani did not move on
this ground for dismissal of the superseding indictment before
the trial, he has waived whatever defense may be available to
him in this regard. We note that in Pitt, unlike here, the due
process argument was raised for the first time on appeal. See id.
at 759. Not only that, but here the District Court explicitly ruled
that “the . . . argument was not waived” because it would have
waited until after the trial to rule on the motion. In any event,
because we ultimately reject Lakhani’s due process argument,
we need not decide how we would deal with his purported
waiver here. See id. at 761–62.
21
ruled on his motion to dismiss the superseding indictment:
I am denying the motion and let me tell you why.
Addressing the argument on the merits, it fails.
The evidence does not establish the extent of
outrageous government conduct that would be
necessary to prevail. None of the conduct of the
government agents was demonstrably outrageous
or intolerable or even close to meeting the
rigorous standards enunciated in United States v.
Nolan[-]Cooper, 155 F.3d 221, at pages 230, 231.
Which rigor[ous] standard is, “shocking
outrageous, and clearly intolerable.” Leaving
aside the extremely high hurdle facing a
defendant making the motion, this defendant’s
efforts are defeated by evidence such as the fact
that he initiated the contact with the government
informant on the advice of terrorists; he promoted
himself during the very first contact with the
informant as someone in the weapons business
whose source and supply was Ukraine and had
information[] and details about all types of
weapons; on his own he made innumerable phone
calls and made numerous trips pursuing the deal
with the informant; he was part of the world of
arms trading before he contacted the informant;
his efforts in the Ukraine, which amounted to
unlawful brokering[,] were sufficient to pique the
22
interests of Russian authorities who initiated
contact with the FBI in response. The shock in
this case has only one source: Mr. Lakhani’s own
words and deeds as exposed on video tapes played
to the jury.
It is difficult to discern error (let alone clear error) in any of the
District Court’s factual findings or legal error in its due process
ruling.
Lakhani argues that the facts of this case are analogous
to, if not “more compelling” than, those in Twigg—the only case
in which the Government’s conduct has offended due process.
Twigg involved an undercover investigation of two individuals
by the DEA, Henry Neville and William Twigg. In that case,
Robert Kubica, a pled-out defendant currying favor with
prosecutors, “agreed to aid the [DEA] in apprehending illegal
drug traffickers” and spoke with Neville to propose setting up
a methamphetamine lab. Twigg, 588 F.2d at 375. Neville
expressed an interest, and over several months the arrangements
were made. Twigg became involved at the behest of Neville, to
whom he owed money. Neville “assumed primary responsibility
for raising capital and arranging for distribution” of the drugs,
“while Kubica [the Government agent] undertook the
acquisition of the necessary equipment, raw materials, and a
production site.” Id. The Government assisted Kubica greatly
with his end of the bargain. “Kubica was completely in charge
of the entire laboratory,” and “[a]ny production assistance
23
provided by Neville and Twigg was minor and at the specific
direction of Kubica.” Id. at 376. Once the lab was established,
it operated for one week and produced six pounds of
methamphetamine, after which Twigg and Neville were
arrested.
Lakhani argues many similarities between his case and
Twigg. With only one such similarity do we agree: the evidence
indicates that, as in Twigg, it was the Government agent,
Rehman, who first suggested the criminal activity. Beyond that,
however, significant dissimilarities abound. Rather than the
Government agent being “completely in charge” and
“furnish[ing] all of the [relevant] experience,” as in Twigg, here
it was Lakhani who used his own knowledge of the arms
business for the benefit of the illegal scheme. Lakhani traveled
to Russia and the Ukraine on his own tab, communicated with
no fewer than three separate arms companies, created fraudulent
shipping documents, and deployed his own money laundering
network. In addition, unlike in Twigg, where we saw little
predisposition on the part of the defendants, there is much to
suggest otherwise in Lakhani’s case, as explained above. See
supra Part II.A.1.
The fact that the Government, as here, is on all sides of
a transaction—both buyer and seller—does not a due process
violation make. See Jannotti, 673 F.2d at 608. Even in Twigg
we recognized that where the Government is investigating
“fleeting and elusive crime[s],” it may “require more extreme
24
methods of investigating, including the supply of ingredients.”
588 F.2d at 378. Likewise, we suggested in Jannotti that
Government investigations of crimes that were “difficult to
uncover” because “both parties to the transaction have an
interest in concealment” would be given greater latitude. 673
F.2d at 609. We have here a Government investigation of
international terrorism. With this context, we have no difficulty
holding that the Government’s conduct does not rise to the level
of a due process violation.
B. Juror Misconduct
Though we have ruled both that a reasonable jury could
have found that Lakhani was not entrapped and that the
Government’s conduct does not constitute a violation of the
Fifth Amendment, the jury would have been free to conclude
otherwise and return a “not guilty” verdict. Blackstone
considered trial by jury to be “the most transcendent privilege
which any subject can enjoy[] or wish for, that he cannot be
affected either in his property, his liberty, or his person, but by
the unanimous consent of twelve of his neighbors and equals.”
3 W ILLIAM B LACKSTONE, C OMMENTARIES ON THE L AWS OF
E NGLAND 379 (1769). As the Supreme Court has noted, the jury
is the “circuitbreaker in the State’s machinery of justice.”
Blakely v. Washington, 542 U.S. 296, 306 (2004).
It appears that Lakhani’s entrapment defense gave pause
to at least one juror. How the guilty verdict eventually was
25
reached is Lakhani’s third point on appeal.
Several months after the jury rendered its verdict, in July
2005, Lakhani’s prosecution was the subject of an hour-long
report on This American Life, a weekly radio program produced
at WBEZ in Chicago and broadcast nationally on National
Public Radio stations.13 In the course of the report, a woman
identified as juror number nine from Lakhani’s trial gave her
views on his prosecution: “As far as I’m concerned, it was
entrapment if he didn’t actually do anything.” The reporter
indicated that the other jurors believed Lakhani could have
acquired a missile if he had tried long enough. But juror number
nine retorted:
But did he try for 22 months and didn’t get one?
And after offering all this millions of dollars?
And he couldn’t get a missile? No, he . . . wasn’t
gonna never get no missile. And they knew he
wasn’t gonna get one either. That’s why they
bought it and set it right there in his lap.
Such strongly held views might have been expected to
produce a hung jury, if not an eventual acquittal. On the radio
report, juror number nine recounted the jury deliberations:
13
A free, streaming-audio recording of the program is
available at www.thislife.org.
26
From day one, I can’t understand it. They [the
other jurors] came in and they sat down and they
says this man is guilty, guilty, guilty, guilty,
guilty, guilty. They didn’t even think about it.
Hey wait a minute, let’s analyze these things.
Let’s go over ‘em one by one.
Juror number nine held her ground for several hours. Another
juror, identified in the report as juror number six, described the
scene:
So I says he’s guilty. Someone says he’s not
guilty. And I’d say but he’s guilty because look at
page 48. And then someone else will say, well
look at page 52. So everyone [was] trying to
make themselves heard. Voices started . . . to rise
so you could be . . . heard over the crowd. The
juror who felt that he was not guilty, I think, felt
overwhelmed by probably a good 6, 7, 8 jurors
talking loudly at the same time, that actually
turned into screaming to be heard. It was
probably very intimidating for her. . . . ‘Cause
she [juror number nine] was the only one that
thought that he was not guilty.
Juror number nine, though, eventually voted to return a guilty
verdict. She explained:
27
Now this is how that happened. I just closed on a
house in Virginia, and everybody [in the] juror
room knew it ‘cause the court was closed down
on April 25th so I could go close on the house.
So when we came back, I think we started
deliberating on a Wednesday, and when we got to
[t]hat count and I said the man [is] not guilty, and
there ain’t nobody gonna change my mind. And
the jury foreman said [that] if I didn’t go along
with them, I wouldn’t see the inside of my house
until December. So, I said aw, what the hell. He
don’t mean nuthin’ to me. The man guilty. But I
know it was wrong. It wasn’t right to do that man
like that. It wasn’t right. But it’s over now.
When asked whether she regretted her decision, juror number
nine answered, “I don’t know. Yeah, yeah, I really do. Because
as far as I’m concerned the man was entrapped. I shoulda held
out.”
On the basis of this report, Lakhani moved for further
investigation of the jury deliberations and for a new trial. The
District Court denied the motion—a decision we review for
abuse of discretion. United States v. Richards, 241 F.3d 335,
343–44 (3d Cir. 2001). We hold not only that the District
Court’s decision was not an abuse of discretion, but also that a
contrary decision would have been error.
28
The above-quoted juror statements are not competent
evidence to impeach the jury verdict. Rule 606(b) of the Federal
Rules of Evidence provides that,
[u]pon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the
jury’s deliberations or to the effect of anything
upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror’s
mental processes in connection therewith, except
that a juror may testify on the question whether
extraneous prejudicial information w as
improperly brought to the jury’s attention or
whether any outside influence was improperly
brought to bear upon any juror. Nor may a juror’s
affidavit or evidence of any statement by the juror
concerning a matter about which the juror would
be precluded from testifying be received for these
purposes.
The origin of this rule is attributed to the 1785 decision of Lord
Mansfield in Vaise v. Delaval. 99 Eng. Rep. 944 (K.B. 1785).
Our slightly more recent decision in Gov’t of the V.I. v. Gereau,
523 F.2d 140 (3d Cir. 1975), identified five policies that the rule
fosters: “(1) discouraging harassment of jurors by losing parties
eager to have the verdict set aside; (2) encouraging free and
29
open discussion among jurors; (3) reducing incentives for jury
tampering; (4) promoting verdict finality; [and] (5) maintaining
the viability of the jury as a judicial decision-making body.” Id.
at 148 (citing McDonald v. Pless, 238 U.S. 264 (1915)).
Therefore, “evidence of discussions among jurors, intimidation
or harassment of one juror by another, and other intra-jury
influences on the verdict is within the rule, rather than the
exception, and is not competent to impeach a verdict.” Id. at
150 (footnotes omitted). At the same time, we also identified
several circumstances that would fall under the rule’s exception
for “extraneous prejudicial information,” including “(1)
exposure of [the] jury to news items about the matter pending
before the jury; (2) consideration by the jury of extra-record
facts about the case; (3) communications between third parties
and jurors [that are] relevant to the case [under consideration];
[and] (4) pressures or partiality on the part of the court.” Id.
(citation, internal quotation marks, and footnotes omitted).
The alleged facts of these jury deliberations are so clearly
within the rule and outside the exception as to make it difficult
to give an explanation beyond stating the rule itself: “we do not
permit jurors to impeach their own verdicts.” United States v.
Lloyd, 269 F.3d 228, 237 (3d Cir. 2001). Though we hope that
jury deliberations proceed in a manner respectful of every
juror’s opinion, rather than what allegedly occurred
here,“[t]estimony concerning intimidation or harassment of one
juror by another falls squarely within the core prohibition of the
Rule.” See United States v. Stansfield, 101 F.3d 909, 914 (3d
30
Cir. 1996) (internal quotation marks omitted). In fact, one major
purpose of the rule is to prevent a juror from being able to recant
her vote—exactly the situation presented in this case. Not only
did juror number nine accede to a guilty verdict in the jury room,
she again expressed her agreement in open court when the
District Court polled each juror individually. Had she felt
improperly pressured by the other jurors, juror number nine
should have raised the issue with the Judge at that point, if not
earlier. Allowing subsequent misgivings to call a verdict into
question would erode the solemnity of a juror’s function in the
first instance.
If intra-jury comments “carried the coercive force of
threats or bribery,” only then “would we be justified in treating
them, factually, as ‘extraneous influences.’” Gereau, 523 F.2d
at 152. Here, the jury foreman’s “threat” to keep juror number
nine from her new home for months is obvious hyperbole. If the
jury system is to function properly, not only must we rely on
every juror to be open to genuine persuasion, but just as
importantly, jurors must also hold steadfast to their firmly held
beliefs. Though explaining a vote with the phrase “He didn’t
mean nuthin’ to me” is hardly heartening, human frailty
sometimes happens. Where that frailty becomes reversible error
is set out in Rule 606(b), and we are not presented such a case
here.
31
C. Sentencing
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), district courts have broad
discretion in selecting a specific sentence, see United States v.
Cooper, 437 F.3d 324, 330 n.9 (3d Cir. 2006). Our review is for
reasonableness in light of the factors set forth in 18 U.S.C.
§ 3553(a). Booker, 543 U.S. at 260–65; Cooper, 437 F.3d at
330–31. The standard is “deferential” because “the trial court
[is] in the best position to determine the appropriate sentence in
light of the particular circumstances of the case.” Cooper, 437
F.3d at 330. To facilitate adequate review, “the record must
show a true, considered exercise of discretion on the part of a
district court . . . .” United States v. Jackson, 467 F.3d 834, 841
(3d Cir. 2006); see also United States v. Grier, 475 F.3d 556,
571–72 (3d Cir. 2007) (en banc).
Here, the statutory maximum for the crimes of conviction
was 67 years in prison. See 18 U.S.C. § 2339A (count I, 15
years); 22 U.S.C. § 2778 (count II, 10 years); 18 U.S.C. § 1956
(counts III and IV, 20 years each); 18 U.S.C. § 542 (count V, 2
years). The District Court first calculated the advisory
Sentencing Guidelines range, which yielded a recommended life
sentence. Lakhani does not dispute the Guidelines calculation.
There being no motions for departure, the District Court then
proceeded to impose a sentence pursuant to 18 U.S.C. § 3553(a).
The Judge explained:
32
Based on Section 3553 factors that require
that I consider the nature and circumstances of the
offense, I believe it would be a dereliction of my
duty to the public to impose anything other than
the statutory maximum for the reprehensible
conduct for which the jury convicted Mr.
Lakhani. The history and circumstances of this
defendant, while he indicated [a] crime-free life,
illustrates well a single-minded greed and
determination to profit in the illegal arms trade
that countervail consideration of the first offender
status.
The statute requires that the sentence be
sufficient but not greater than necessary to
promote the purposes of sentencing. And as
indicated, I do not believe that the harsh sentence
that the statutory maximum call[s] for under these
circumstances would be greater than necessary to
promote these purposes.
And looking at those purposes, the
statutory maximum [of the] counts of conviction
accomplishes those purposes, which are to reflect
the seriousness of the offense, promote respect for
the law, and provide just punishment. I think
everything I said supports those purposes. The
next purpose (B), to afford adequate deterrence to
33
criminal conduct, without a question is supported
by a sentence of a statutory maximum. The next
purpose, the need to protect the public from
further crimes by this defendant is arguably less
relevant given his age and given his health,[14] but
I repeat his age and the state of his health do not
offer mitigation.
His crimes are such that the other
purposes, including the final factor (D) to provide
the needed, in this case medical care, or other
correctional treatment [in the] most effective
manner[,] combine[] to support imposing the
maximum punishment under the statutes.
The Judge then sentenced Lakhani to the statutory maximum on
each count, the sentences to be served consecutively (with the
exception of the two money laundering counts, which are to be
served concurrently). This yielded a total term of imprisonment
of 47 years.
We cannot say that this sentence is unreasonable.
Though Lakhani admits to the seriousness of his offenses, he
14
At the time of sentencing, Lakhani was 70 years old and
suffered from multiple ailments, including coronary disease.
His prognosis is “poor.” During the course of Lakhani’s trial,
proceedings were delayed at least twice for his hospitalization.
34
continues to assert entrapment as a mitigating factor. We do not
deny that the District Court at sentencing would have been
entitled to consider the Government’s pervasive role in this
case—even if not amounting to a due process violation or
entrapment per se. But in the end, the Court (like the jury) was
not persuaded by Lakhani’s defense. Our deferential review
puts us in no position to second guess that conclusion.
Lakhani also argues that the District Court’s general
deterrence justifications are inapt. He states that “no sentence
would be long enough” to deter a true terrorist and that the only
thing his sentence may have accomplished is the deterrence of
“charlatans and con-artists from suggesting they can provide
weapons to terrorists.” That may be so, but accepting Lakhani’s
argument would require criminal courts to abandon their sworn
duty in the face of an irrational enemy. Section 3553(a) requires
no such thing. Moreover, even if potential terrorists are unlikely
to be undeterrable, their necessary aiders and abetters—such as
Lakhani believed he was—may be. Moreover, aside from
general deterrence, the penological goal of specific deterrence
provides ample reason for Lakhani’s sentence: he will never
again seek to provide material support to terrorists. Despite the
role the Government played in his crime, we have no doubt that
if Lakhani had actually stumbled into a willing provider of a real
missile, he would eagerly have arranged to smuggle it into the
35
United States all the same.15
Therefore, we conclude, in light of the factors set forth in
18 U.S.C. § 3553(a), that a sentence of 47 years—20 years less
than what was available to the District Court—is reasonable in
this case.
* * * * *
For the foregoing reasons, we affirm both Lakhani’s
conviction and his sentence.
15
As to Lakhani’s argument for mitigation based on his age
and health, we note that the District Court was reasonable to
conclude that those factors did not entitle him to leniency.
Nothing about Lakhani’s age or health hindered his criminal
pursuits in this case, and it is not unreasonable to think that the
same would hold in the future.
36