U.S. v. Bakhtiari

• Decision Date: 17 September 1990
• Docket Number: Nos. 1233,s. 1233
• Citation: 913 F.2d 1053
• Parties: UNITED STATES of America, Appellee, v. Kourosh BAKHTIARI, Defendant-Appellant. to 1235, Dockets 89-1644, 89-1671 and 89-1672.
• Court: U.S. Court of Appeals — Second Circuit

Page 1053

913 F.2d 1053

UNITED STATES of America, Appellee, v. Kourosh BAKHTIARI, Defendant-Appellant.

Nos. 1233 to 1235, Dockets 89-1644, 89-1671 and 89-1672.

United States Court of Appeals,

Second Circuit.

Argued May 23, 1990.

Decided Sept. 17, 1990.

Colleen P. Cassidy, Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

James B. Comey, Asst. U.S. Atty., New York City (Otto Obermaier, U.S. Atty., S.D.N.Y., David E. Brodsky, Asst. U.S. Atty., on brief), for appellee.

Before VAN GRAAFEILAND, MESKILL and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Kourosh Bakhtiari appeals from judgments of conviction entered by two district court judges in the Southern District of New York. The first was entered by Judge Sand on November 28, 1989, three months after the defendant was convicted by a jury on all counts in a five-count indictment, S 88 Cr. 395. That indictment charged the defendant with possession of a silencer not identified with a serial number, in violation of 26 U.S.C. Secs. 5845(a)(7) and 5861(i); possession of a loaded semi-automatic pistol and a silencer by an illegal alien, in violation of 18 U.S.C. Sec. 922(g)(5); impersonating a State Department employee, in violation of 18 U.S.C. Sec. 912; and making false statements, in violation of 18 U.S.C. Sec. 1001. Judge Sand sentenced the defendant to imprisonment for 46 months on Counts One, Two and Three, and 36 months on Counts Four and Five, all terms to run concurrently. The district court also imposed a total of ten years supervised release, a $7,500 fine and special assessments totalling $250.

Bakhtiari also appeals from a judgment of conviction entered on December 19, 1989, by Judge Sweet upon the defendant's guilty pleas to two indictments charging him with escape. The first, 88 Cr. 889, charged Bakhtiari--and two other inmates--with conspiring to escape, in violation of 18 U.S.C. Sec. 371, and with attempted escape, in violation of 18 U.S.C. Sec. 751(a). The second indictment, 89 Cr. 227, charged Bakhtiari with escape from custody, in violation of 18 U.S.C. Sec. 751(a). Judge Sweet sentenced him to imprisonment for 24 months and a $5,000 fine on both indictments to run concurrently but consecutive to the sentences imposed by Judge Sand. Judge Sweet also ordered the payment of special assessments totalling $150.

Bakhtiari now argues that Judge Sand improperly precluded a duress defense; that evidence of his guilt was insufficient; and that he was arrested without probable cause, thus invalidating a subsequent search. He also advances various challenges to the sentences imposed by Judges Sand and Sweet. We find no trial or pre-trial error and thus affirm Bakhtiari's convictions in their entirety. Because we find a single error in the sentence imposed by Judge Sand, we remand the case under indictment S 88 Cr. 395 for resentencing.

BACKGROUND

During the spring of 1988, Kourosh Bakhtiari, using the alias "Michael Anderson," negotiated with a real estate broker to purchase a Manhattan apartment. During the negotiations, Bakhtiari variously told the broker that he was employed by the United States State Department and the Department of Defense branch of the State Department. He discussed with the broker his need for certain security improvements to the building. The broker reported the foregoing to the Federal Bureau of Investigation ("FBI"), which opened an investigation. On June 14, 1988, federal agents, posing as a business associate and a lawyer, accompanied the broker to a meeting with Bakhtiari. The defendant arrived carrying a briefcase, which he placed on the floor near where the parties sat. The agent posing as the broker's lawyer told the defendant that he needed to see "Michael Anderson's" official identification and asked the defendant where he worked. Bakhtiari said that he worked for the "United States State Department." The agent asked the defendant to be more specific. Bakhtiari replied that he worked in the "Department of Defense ... a joint task force with the State Department." Bakhtiari was then arrested.

Before the defendant was placed in handcuffs, another agent entered the room and saw the defendant's briefcase, roughly six to eight feet from the defendant. The agent noticed a tag on the briefcase which said "FIREARM." Bakhtiari admitted that the briefcase contained a gun and then denied the agent permission to search the case, to which the agent responded, "[I]t doesn't matter, because we are going to secure the gun anyway." The briefcase contained a host of weapons--including an M-11 9 millimeter semi-automatic pistol containing a magazine loaded with ten rounds, a silencer for the gun, a knife, grenades, and a garrote--as well as bottles of strychnine and chloroform.

On November 1, 1988, Judge Sand held a hearing upon Bakhtiari's motion to suppress the contents of the briefcase based upon a search incidental to an arrest allegedly made without probable cause. However, after hearing proof of Bakhtiari's request that the agents "call [then Secretary of Defense] Frank Carlucci ... that this was a special operation and that [the defendant] couldn't talk about it and if [the agents] would call [Carlucci], [Carlucci] would clear it up," Judge Sand, with the consent of all parties, ordered a psychiatric examination of Bakhtiari. On November 20, Bakhtiari attempted to escape from the seventh floor of the Metropolitan Correctional Center in Manhattan by sliding down a makeshift rope woven from, among other things, dental floss. Three months later, while Bakhtiari was being treated at a hospital for wounds sustained in his futile escape effort, he successfully escaped and remained at large for three days.

After Bakhtiari's recapture and the completion of the psychiatric report, Judge Sand concluded the suppression hearing and denied the defendant's motion. He ruled that the search of the briefcase and seizure of the weapons were incident to a lawful arrest, since the government had probable cause on June 14 to believe that Bakhtiari had violated 18 U.S.C. Sec. 912 by impersonating a State Department employee.

Prior to trial, the government moved to preclude Bakhtiari from presenting a defense based on alleged duress. Judge Sand conducted a hearing on August 1, 1989. For the purposes of the hearing, the government stipulated that Bakhtiari's father had held high office under the Shah of Iran and had been executed after the Shah's fall in 1979. The district court also assumed that "Bakhtiari had a good faith basis for believing that members of his family were threatened by persons acting for the present government of Iran."

Bakhtiari, the only defense witness at the hearing, claimed that he had been coerced into committing the charged crimes by the Iranian government, which allegedly had threatened his family. According to the defendant, who is Iranian, he received several phone calls prior to his arrest from unidentified individuals who explained that if Bakhtiari would help them obtain various chemicals, the caller would help the defendant's family travel to the United States.

Bakhtiari also testified that he was visited by an individual, claiming to represent the current government of Iran, who instructed him to obtain chemicals to be used in chemical warfare, asked for sophisticated silencers for machine guns and specially designed hand grenades, and told Bakhtiari to contact a Mr. Tabar at the Iranian Mission to the United Nations. Accompanied by a friend named Glenn Miller, Bakhtiari travelled from his home in Pennsylvania to New York to visit Tabar. At the meeting, Tabar allegedly showed Bakhtiari pictures of Bakhtiari's father being tortured in Iran in 1984. The defendant claimed that Tabar told him that the Iranian government would know if he "ever went to [the FBI]." Bakhtiari also claimed to have mailed to a subcommittee of the Senate Foreign Relations Committee a letter which, according to the defendant, "explained [his] predicament." While the defendant produced a general cover letter, he was unable to produce those pages he said he sent to the subcommittee explaining his situation--a lapse, he claimed, due to the FBI's failure to secure his apartment. The Foreign Relations Committee Bakhtiari explained his possession of the chemicals and the weapons at the time of his arrest:

had no record of any letter received from the defendant.

On ... June 12 or ... June 13, 1988 ... I accidentally spilled some of the chemicals [strychnine and chloroform] and I telephoned the chemical emergency ... number ... Before leaving for New York City [to meet Tabar], I realized that I possessed ... various dangerous and possibly illegal substances and weapons [at my residence] and that there might be an investigation relating to the chemicals that I had spilled ... By this time I had also agreed to experiment with a handgun and silencer as part of [ ] another project for the Iranians ...

Bakhtiari admitted that no one had asked him to obtain the gun; he said he needed it to design the silencer.

At the hearing, Bakhtiari also testified that, in May or June of 1988, he had discussed the Iranian threats with his associate Glenn Miller and had asked Miller, in the event Bakhtiari was harmed, to retrieve a letter Bakhtiari had written to himself and turn it over to the authorities. During a recess, however, the government and Bakhtiari's counsel spoke to Miller by phone. Miller denied any recollection of a letter and any discussions with Bakhtiari about the alleged threats from the Iranian government. Neither side called Miller as a witness at the hearing.

Finally, Bakhtiari did not claim a direct connection between any alleged threats from the Iranian government and his efforts to obtain an apartment in Manhattan. Instead, the defendant contended that his impersonation of a State Department official resulted from his concern for his family's safety; he felt a high-security apartment would...