U.S. v. Sahakian, 05-1642.

• Decision Date: 12 July 2006
• Docket Number: No. 05-1642.,05-1642.
• Citation: 453 F.3d 905
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David M. SAHAKIAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 905

UNITED STATES of America, Plaintiff-Appellee, v. David M. SAHAKIAN, Defendant-Appellant.

No. 05-1642.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2005.

Decided July 12, 2006.

Michael C. Carr, James M. Cutchin (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Burton H. Shostak (argued), Moline, Shostak, Strand & Mehan, Clayton, MO, for Defendant-Appellant.

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 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 "Aryan Brotherhood,"² composed primarily of white prisoners, 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 officers that at least six members of the Aryan Brotherhood contemporaneously had shanks in their possession. According 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 Brotherhood members that he suspected were carrying concealed shanks and that should be x-rayed, including Sahakian.

After gaining this information the prison officials proceeded to conduct a "shake-down"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 sharpened metal covered with a plastic tip and wrapped in toilet paper.

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. § 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 assessments.

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 informing 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 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, 100 S.Ct. 624). 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 prosecution, 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 experienced 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 demonstrate "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 unquestioningly 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 acknowledged that prisons are inherently dangerous places, we stressed that this perilous atmosphere, per se, does not justify the possession of...