United States v. Sahakian, David M. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1642
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID M. SAHAKIAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40044—J. Phil Gilbert, Judge.
____________
ARGUED SEPTEMBER 21, 2005—DECIDED JULY 12, 2006
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. On June 9, 2002, David
Sahakian, an inmate at the United States Penitentiary
at Marion, Illinois (“USP-Marion”) and the reputed leader
of the prison’s “Aryan Brotherhood” gang, was charged
in a fourth superceding indictment with first degree
murder, in violation of 18 U.S.C. §§ 1111, 7(3) and 2,
conspiracy to commit first degree murder, in violation of 18
U.S.C. § 1117, and possession of a weapon in prison, in
violation of 18 U.S.C. § 1791(a)(2). Prior to trial, the
government filed a motion in limine to preclude Sahakian
from presenting the defense of necessity at trial, which the
trial judge granted. On September 8, 2003, the district court
commenced a jury trial that lasted sixty-nine days. After
2 No. 05-1642
eight days of deliberations the jury was unable to reach a
consensus on the murder and conspiracy to commit murder
charges and they were subsequently dismissed. However,
the jury did return a guilty verdict on the possession of a
weapon in prison charge, resulting in Sahakian being
sentenced to sixty months in prison. On appeal, Sahakian
challenges his conviction arguing that the trial judge erred
in precluding him from introducing the defense of necessity
concerning the possession of a weapon in prison charge. We
affirm.
I. BACKGROUND
In 1992, in a proceeding unrelated to this case, David M.
Sahakian was convicted of being a felon in possession of a
handgun and sentenced to 360 months in federal prison. See
United States v. Sahakian, 965 F.2d 740, 741 (9th Cir.
1992). He has been incarcerated at USP-Marion1 ever since.
The institution is a federal maximum security prison with
a well-documented history of violence. See, e.g., United
States v. Tokash, 282 F.3d 962, 966 (7th Cir. 2002);
Caldwell v. Miller, 790 F.2d 589, 592-93 (7th Cir. 1986).
The potential cause of the tempestuous atmosphere at USP-
Marion can, at least in part, be attributed to the violent
nature of the inmates housed in the prison as well as the
proliferation of gang membership and their attenuated
violent activities within the penitentiary’s walls. See
Tokash, 282 F.3d at 962-63.
Two of the more prominent gangs operating covertly at
USP-Marion during the time period of the late ’90s were the
1
USP-Marion is “a high security facility housing male inmates”
located in southern Illinois.
No. 05-1642 3
“Aryan Brotherhood,”2 composed primarily of white prison-
ers, and the “DC Blacks,” made up of mainly African-
American prisoners. According to the record, the Aryan
Brotherhood maintained a running oral “hit list” of black
prisoners that, if encountered, should be attacked and/or
killed. In order to bolster their violent tendencies, members
of the Aryan Brotherhood, and associated gangs such as the
“Dirty White Boys,” carried weapons known as “shanks,”3
which the members of the gangs often carried in their rectal
cavities in order to conceal them from corrections officers.
On May 18, 1999, Terry Lamar Walker, a black inmate at
USP-Marion, was stabbed to death by inmate Richard
McIntosh who was armed with a shank, see supra, while
another inmate, Carl Knorr, held him. The entire incident
was witnessed by two correctional officers, who identified
the inmates taking part in the attack as members of the
Dirty White Boys gang. Following the stabbing, corrections
officers interviewed a number of inmates about the murder.
One of the inmates associated with both the Dirty White
Boys and the Aryan Brotherhood agreed to cooperate on the
condition of anonymity. He informed the investigating
officers that Sahakian was a “shot-caller” or leader of the
Aryan Brotherhood gang at USP-Marion and had ordered
Walker’s murder as a “favor” to one of the prison’s other
gangs, the “Mexican Mafia.” When asked about the weapons
used to carry out the murder, the informant told corrections
2
According to the record, the Aryan Brotherhood gang originated
in the California State prison system and later spread to the
federal prison system. Among other things, the gang has
been known to incite violence and carry out coordinated attacks
against other inmates, primarily African-Americans.
3
In prison colloquialism, the term “shank” refers to a crudely
fashioned prison-made knife. See, e.g., King v. One Unknown
Federal Correctional Officer, 201 F.3d 910, 912 n. 1 (7th Cir.
2000).
4 No. 05-1642
officers that at least six members of the Aryan Brotherhood
contemporaneously had shanks in their possession. Accord-
ing to the anonymous inmate, each member of the Aryan
Brotherhood had possession of one of the six shanks for a
week at a time, and would then transfer it on to another
member. He also told guards that in order to identify which
member of the gang had possession of the dangerous
weapons at that particular time, they would need to x-ray
them–as the shanks were concealed in their rectums. The
informing inmate gave the officers a list of Aryan Brother-
hood members that he suspected were carrying concealed
shanks and that should be x-rayed, including Sahakian.
After gaining this information the prison officials pro-
ceeded to conduct a “shakedown”4 at the institution in an
effort to locate additional weapons and weapon-making
tools. Sahakian was one of the first to be segregated from
the general population for an x-ray examination. He was
escorted to the institution hospital, where he agreed to
comply and admitted having a shank in his possession.
Sahakian was then taken to a dry-cell5 where, after fifteen
minutes of self-examination, he was finally able to remove
the shank, wrapped in plastic, from his rectal cavity. Inside
of the plastic was a four and one-half inch piece of sharp-
ened metal covered with a plastic tip and wrapped in toilet
paper.
4
A “shakedown” is a maneuver whereby guards, without advance
notice, remove prisoners from their cells in order to search the
cells and/or the prisoners for contraband and unauthorized
property; strip searches and x-ray procedures are com-
monly employed as part of a shakedown. See Tokash, 282 F.3d at
966; United States v. Thompson, 807 F.3d 585, 587 (7th Cir. 1986);
Bono v. Saxbe, 620 F.2d 609, 620 (7th Cir. 1980); Stewart v.
McGinnis, 800 F. Supp. 604, 607 (N.D. Ill. 1992).
5
A “dry cell” is one with no running water or other means to
dispose of contraband.
No. 05-1642 5
After many months of investigation and the filing of four
superceding indictments, Sahakian was indicted by a grand
jury on one count of first degree murder, in violation of 18
U.S.C. §§ 1111, 7(3) and 2, conspiracy to commit first degree
murder, in violation of 18 U.S.C. § 1117, and possession of
a weapon in prison, in violation of 18 U.S.C. § 1791(a)(2).6
Prior to trial, the government filed a motion in limine in an
attempt to bar Sahakian from introducing evidence of his
defense theory of “necessity.”7 The district court granted the
government’s motion, finding that Sahakian had failed to
demonstrate an imminent threat to his safety and that
there were legal alternatives to carrying a weapon which
Sahakian failed to exhaust, thus prohibiting him from
presenting evidence of a necessity defense. Following a
sixty-nine day jury trial and eight additional days of
deliberations, the trial judge determined that the jury was
hung on the murder and conspiracy to commit murder
charges, but accepted a guilty verdict they reached against
Sahakian on one count of being in possession of a weapon
while confined in prison, in violation of 18 U.S.C.
6
Section 1791(a)(2) punishes an inmate who “makes, possesses,
or obtains, or attempts to make or obtain, a prohibited object,”
including any object that “threatens the order, discipline, or
security of a prison, or the life, health, or safety of an individual.”
18 U.S.C. § 1791(a)(2) & (d)(1)(F).
7
Like self-defense or duress, necessity is an affirmative de-
fense “designed to spare a person from punishment if he acted
‘under threats or conditions that a person of ordinary firmness
would have been unable to resist,’ or if he reasonably believed that
criminal action ‘was necessary to avoid a harm more serious than
that sought to be prevented by the statute defining the offense.’ ”
United States v. Bailey, 444 U.S. 394, 410 (1980); see Tokash, 282
F.3d at 969. However, such a defense may only be presented to a
jury where the defendant establishes that there was no “reason-
able, legal alternative to violating the law.” Id.
6 No. 05-1642
§ 1791(a)(2).8 On February 18, 2005, Sahakian
was sentenced to 60 months in prison, followed by three
years of supervised release, and $150 in fines and assess-
ments.
II. ISSUES
On appeal, Sahakian alleges that the district court
erroneously granted the government’s motion in limine.
Specifically, he argues that he should have been allowed to
introduce evidence concerning the dangerous atmosphere
for prisoners such as himself at USP-Marion. Also, he
argues that he should have been permitted to submit an
instruction to the jury at the conclusion of the trial inform-
ing them that, if they found that it was “necessary” for him
to carry a prison-made knife in order to avoid “immediate
serious bodily harm or death,” he should be found not guilty
of the prisoner in possession of a weapon charge.
III. ANALYSIS
The legal sufficiency of a proffered affirmative defense
is a question of law which we review de novo. United States
v. Simmons, 215 F.3d 737, 740-41 (7th Cir. 2000). We
have consistently held that a district court may properly
deny a defendant the opportunity to introduce evidence
supporting an affirmative defense by granting a pre-trial
motion in limine, so long as the facts proffered by the
defendant to support the defense are insufficient as a
matter of law to meet the minimum standard as to each of
the elements of that defense. United States v. Tokash, 282
F.3d 962, 967 (7th Cir. 2002); United States v. Santiago-
Godinez, 12 F.3d 722, 727 (7th Cir. 1993). Indeed, this is
8
The jury could not reach a verdict on the murder or conspiracy
counts, and the court ordered a mistrial on those charges.
No. 05-1642 7
what the district court concluded in Sahakian’s case. The
district judge found that, even if all of the facts Sahakian
presented were accepted as true, he would still be unable to
establish the elements of a necessity defense. We agree.
A defendant seeking to invoke the defense of necessity
in a criminal case must establish that he faced an imminent
threat of serious bodily injury or death and that he had no
reasonable legal alternatives to avoid that threat. Id. at
969-71 (citing Bailey, 444 U.S. at 409-11). In United States
v. Tokash, we addressed the issue of what constitutes an
“imminent threat” in the prison context. 282 F.3d 962. In a
case based on the same incident giving rise to this prosecu-
tion, i.e., the murder of Terry Walker at USP-Marion, we
concluded that the word “imminent” should be construed
narrowly in the prison context. Id. at 971. In doing so we
determined that a prisoner must establish that he experi-
enced something more than a “generalized fear of attack by
some unknown or unspecified assailant at some unknown
time in the future.” Id. at 966. Instead, he must demon-
strate “the threat was immediate and that there was no
reasonable alternative to violating the law.” Id. at 971.
Additionally, in Tokash we reaffirmed our holding that an
imminent threat of death or serious bodily harm is an
essential and necessary element of a necessity defense. Id.
at 969 (stating that: “We have repeatedly and unquestion-
ingly held that a defendant claiming a defense of necessity
or duress must establish that he was under imminent fear
of death or serious bodily harm.”). Although we acknowl-
edged that prisons are inherently dangerous places, we
stressed that this perilous atmosphere, per se, does not
justify the possession of a weapon. See id. at 970. Rather,
we noted that arguments involving generalized allega-
tions of violence within a prison are unavailing and stated:
“If prisoners could decide for themselves when to seek
protection from the guards and when to settle matters by
violence, prisons would be next to impossible to regulate.
8 No. 05-1642
The guards might as well throw the inmates together,
withdraw to the perimeter, and let them kill one another . .
. .” Id. (quoting United States v. Haynes, 143 F.3d 1089,
1091 (7th Cir. 1998)).
Sahakian argues that the definition of “necessity” should
be read more broadly in his case because he genuinely
feared for his life due to the unpredictability of his con-
tact with other prisoners and the violent atmosphere at
USP-Marion. Sahakian also suggests that this case can be
distinguished from Tokash because he, unlike the defendant
in Tokash, experienced a real and particularized threat to
his life by way of rumors that there was a “price on his
head,” and, thus, such a statement should not be classified
merely as a “generalized threat” of a future act of violence.
Id. at 970.
Sahakian’s arguments are ultimately unpersuasive. The
rumor that there was a contract out on his life presents,
at best, a threat of future violence against him at some
unspecified time, as opposed to a threat which was immedi-
ate or imminent in nature. For instance, Sahakian does not
allege that the person making the supposed threat against
him was standing in front of him with a knife or other
weapon at the time he informed Sahakian that he would
like to see him dead. In fact, Sahakian was unable to
identify the source of the threat and only stated that the DC
Blacks, a rival gang, had “targeted [him] for death.” This is
the same sort of generalized future threat of violence that
we addressed in Tokash. As we noted in that case, “ ‘future’
or ‘later’ and ‘imminent’ are opposites.” 282 F.3d at 970.
Whether reasonable or not, Sahakian’s fear that he might
be assaulted at some future point by some unidentified
inmate without any corroboration or identification of a
specific assailant, is insufficient to demonstrate an entitle-
ment to the necessity defense. To hold that Sahakian was
faced with an imminent threat based on a rumor he heard
from some unknown and unidentified individual would
No. 05-1642 9
essentially require that each and every inmate who has
allegedly received a vague unsubstantiated threat be
allowed to arm himself, threatening the safety of guards as
well as other prisoners; this would be less than reasonable.
See also United States v. Bell, 214 F.3d 1299, 1301 (11th
Cir. 2000) (noting that the defense is reserved for “extraor-
dinary circumstances” which “require nothing less than
immediate emergency.”). The consequences of such a
concession would only serve to exacerbate the already
violent environment at USP-Marion and any other federal
prisons or places of confinement.
Sahakian has also failed to demonstrate that the shank
he carried would have been of any use to him if he was
confronted with “imminent” danger. The record establishes
that it took Sahakian approximately fifteen minutes to
remove the weapon from his body cavity when prison
officers directed him to do so. Obviously, with the quarter-
of-an-hour spent retrieving the weapon, it would be nigh on
impossible for Sahakian to protect himself from any threat,
much less one that was immediate or imminent. In light of
the level of violence Sahakian described at USP-Marion, as
well as the swift, ruthless and orchestrated manner in
which Terry Walker was murdered, it is unlikely that a
prospective attacker would extend the courtesy of allowing
him to retrieve the knife before taking his life.
Equally fatal to his claim of entitlement to a necessity
defense is that Sahakian failed to establish that he had
exhausted all other reasonable legal alternatives before he
decided to take matters into his own hands. Bailey, 444 U.S.
at 410. In Bailey, the Supreme Court made clear that a
necessity defense is only available where it has been
established that the defendant had no “reasonable, legal
alternative to violating the law.” Id. Expounding on the
Supreme Court’s decision in Bailey, we noted in Tokash that
there are an abundance of legal alternatives to possessing
a weapon in prison, such as filing a proper administrative
10 No. 05-1642
grievance with prison officials or requesting, based upon
good cause, to be placed in protective custody or segrega-
tion. 282 F.3d at 970. In Tokash, we held that those reason-
able legal alternatives remained viable despite Tokash’s
argument that informing the prison guards would prove
“futile.” Id. at 966. Likewise, in this case, Sahakian argues
that pursuing legal alternatives would have been otiose. We
respond by reaffirming the theory advanced in Tokash that:
“ ‘If prisoners could decide for themselves when to seek
protection from the guards and when to settle matters by
violence, prisons would be next to impossible to regulate.
The guards might as well throw the inmates together,
withdraw to the perimeter, and let them kill one another .
. . .’ Appellate courts are ill-equipped to consider and adopt
policies and practices to maintain the safety and security of
this country’s penitentiaries. Indeed, the operation of our
correctional facilities is ‘peculiarly the province of the
Legislative and Executive Branches of our government, not
the Judicial.’ ” Id. at 970; Bell v. Wolfish, 441 U.S. 520
(1979).
Sahakian, as did the defendants in Tokash, falls far short
of demonstrating that he exhausted all available lawful
means of avoiding the alleged contract on his life before
resorting to carrying a weapon. He never informed the
prison guards of the threat on his life, he did not request to
be moved and he did not ask to be placed in protective
custody. Rather, he chose to take the matter into his own
hands by carrying a concealed weapon, an action this court
has been well advised not to condone in the past and will
not excuse in this case. See generally id.
III. CONCLUSION
The decision of the district court is
AFFIRMED.
No. 05-1642 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-06