United States v. Bagcho

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Crim. Action No. 06-00334 (ESH)
HAJI BAGCHO,
Defendant.
MEMORANDUM OPINION & ORDER
Upon consideration of the government’s Motion in Limine to Preclude Reference to
Duress or Coercion, Jan. 18, 2012 [Dkt. No. 65], and defendant’s opposition, Feb. 13, 2012 [Dkt.
No. 67], the Court will GRANT the government’s Motion. Defendant has not proffered a prima
facie showing of duress, nor has he stated an intention to raise such a defense at trial. See United
States v. Nwoye, 663 F.3d 460, 462–63 (D.C. Cir. 2011); United States v. Ibarra-Pino, 657 F.3d
1000, 1004 (9th Cir. 2011) (“A defendant is not entitled to present a duress defense at trial or
receive a jury instruction on duress unless the defendant makes a prima facie showing of duress
in a pretrial offer of proof . . . or in evidence presented at trial.” (citations omitted)). Rather, in
opposing the government’s motion, defendant states that he wishes to argue only that,
“concerning alleged payments to the Taliban,” he either “paid or risked death or other serious
harm.” (Def.’s Opp’n at 2.) “If it can be shown on cross examination that the Taliban exacted
tribute through fear, intimidation and/or murder, the defense should be allowed to present it to
the jury.” (Id.)
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The Court disagrees. A defendant may not argue duress without making a prima facie
showing. Nwoye, 663 F.3d at 462; cf. United States v. Clarke, 767 F. Supp. 2d 12, 104 (D.D.C.
2011) (“[Defendant], in essence, argues that he should have been acquitted because the evidence
shows he acted out of fear of serious bodily harm or death and, hence, his actions were not
voluntary. But that is the very definition of a duress defense, and there are clear limitations to a
duress defense under the law, which is presumably why [defendant] did not want the jury to be
instructed on it.”). Moreover, to the extent defendant implies that evidence of fear and
intimidation negates the government’s showing of his mens rea, he is incorrect. “[T]he defense
of duress does not negate a defendant’s criminal state of mind when the applicable offense
requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to
‘avoid liability . . . because coercive conditions or necessity negates a conclusion of guilt even
though the necessary mens rea was present.’” Dixon v. United States, 548 U.S. 1, 7 (2006)
(alteration in the original) (quoting United States v. Bailey, 444 U.S. 394, 402 (1980)).1
It is hereby ORDERED that the government’s motion is granted and defendant is
precluded from raising the issue of duress or making any reference to coercive tactics used by the
Taliban to extract payments. See United States v. Weekly, No. 92-3053, 1992 WL 336990, at *2
n.1 (D.C. Cir. Nov. 13, 1992) (per curiam) (“[Defendant] also claims that the district court erred
in limiting the defense counsel’s closing argument [regarding duress]. This argument was an
attempt to end-run the district court’s refusal to allow [defendant] to present her duress defense.
Given our [conclusion that the district court did not err in refusing that defense], we find no merit
in this claim.”).
SO ORDERED.
1
Here, the applicable offense requires defendant to have acted knowingly or willfully. 21 U.S.C.
§ 960a (“knowing or intending”).
2
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 16, 2012
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