480 F.3d 171 (3rd Cir. 2007), 05-4276, United States v. Lakhani

Docket Nº:05-4276.
Citation:480 F.3d 171
Party Name:UNITED STATES of America v. Hemant LAKHANI, Appellant.
Case Date:March 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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480 F.3d 171 (3rd Cir. 2007)

UNITED STATES of America

v.

Hemant LAKHANI, Appellant.

No. 05-4276.

United States Court of Appeals, Third Circuit.

March 16, 2007

Submitted Under Third Circuit LAR 34.1(a) Nov. 28, 2006.

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Henry E. Klingeman, Esquire, Anna G. Cominsky, Esquire, Klingeman Law, Florham Park, NJ, 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, Newark, NJ, Counsel for Appellee.

Before: RENDELL and AMBRO, Circuit Judges PRATTER, [*] District Judge.

OPINION

AMBRO, Circuit Judge.

Helmant Lakhani appeals his conviction by a jury on five 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 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

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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 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 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 ("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

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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 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 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

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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 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...

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