US v. Christian
| Decision Date | 06 January 1994 |
| Docket Number | Cr. No. L-92-0370. |
| Citation | 843 F. Supp. 1000 |
| Parties | UNITED STATES of America v. Bernard CHRISTIAN a/k/a "Chase." |
| Court | U.S. District Court — District of Maryland |
Robert T. Durkin, Baltimore, MD, for defendant.
Lynne A. Battaglia, U.S. Atty. and Thomas M. DiViagio, Asst. U.S. Atty., Baltimore, MD, for the U.S.
At the close of evidence during trial, defendant Bernard Christian moved the Court to instruct the jury on the affirmative defense of duress. Ruling that the evidence presented at trial was insufficient to support the defense, the Court denied the motion. Ultimately, the jury found Christian guilty on all three counts in the superseding indictment.1 In ruling orally, the Court reserved the right to substitute a written opinion. This is that opinion.
On September 16, 1992, Bernard Christian alighted at Baltimore's Pennsylvania Station from a train that originated in New York City. A plain-clothes Baltimore City police officer, who was attracted by Christian's nervousness, approached and asked if he could search Christian's bag.2 Christian consented to the search. Upon discovering two nine millimeter semiautomatic pistols, the officer arrested Christian. After being placed in a holding cell at the railway station, Christian hailed a jail keeper and said that he wished to cooperate with the police.
That night, during interviews with law enforcement personnel,3 Christian explained that he was involved in a scheme to murder two Baltimore men. He had been assigned the task of carrying the murder weapons into the city. The actual "trigger men," two Jamaican males from New York, were traveling to Baltimore by car. The intended victims of this plan, Christian said, were two local drug dealers who owed money to a drug supplier in New York City.4
The Drug Enforcement Administration ("DEA"), in cooperation with the Baltimore City Police Department, placed Christian in a hotel room in downtown Baltimore. With Christian's permission,5 the DEA wired the room for video and audio taping. After Christian placed a telephone call, two men, Steven Cox and Mario Martinez, came to the hotel room. The two Jamaican "trigger men," Calvin Deaire and Floyd Sinclair a/k/a Peter Brown, were leery of the hotel room and elected to spend the night in a rented white van parked in the hotel lot. During the night of September 16th and the morning of the 17th, Christian, Cox, and Martinez were taped planning the murders.6
The next morning, September 17th, the authorities arrested the aforementioned individuals as well as Thomas Faulkner, a local drug dealer whose job was to locate the murder targets.7 Christian eventually signed a plea agreement with the government in which he agreed, in exchange for a reduced sentence, to plead guilty and inform on his former colleagues. In February, 1993, however, the government abrogated the agreement after Christian conceded that he had lied during a proffer session.8 Christian was permitted to change his plea from "guilty" to "not guilty."
Christian stood trial in November, 1993 for his role in the conspiracy, and the Court allowed him to present evidence on the defense of duress.9 Christian took the stand and testified that he was a former member of a Jamaican gang (the "Uprising Posse"), headed by Cox. Although he had disassociated himself from the Posse, Christian stated, Cox came to his apartment on September 15, 1992, and asked him to participate in the Baltimore scheme. Christian testified that on two earlier occasions he had been shot by Cox — once in the shoulder and once in the leg. Thus, Christian claimed that he was forced to carry the guns to Baltimore because he feared that Cox would kill (or seriously injure) him if he refused.
After hearing the evidence and deciding that it was insufficient to warrant an instruction, the Court advised the jurors that they could not consider the defense of duress in their deliberations.
The Court now sets forth the essentials of the testimony of Christian, his mother, and Glenn Ehasz, a private detective in defendant's employ. The testimony concerned not only the immediate facts surrounding Christian's arrest but also his early years living in the Bronx.
Christian and Cox were in grade school together in the Bronx. The Bronx is a violent, drug and firearm infested neighborhood where the police are seldom in evidence. Glenn Ehasz, the private detective, lived in the Bronx as a boy; he testified that the Bronx has become a "very scary place."
Christian and Cox did many "bad things" together as boys. Later, as young men, they became involved in the "Uprising Posse," which sold guns and drugs. Cox managed the business of the gang, and, prior to December, 1990, Christian served as Cox's bodyguard. As the gang's tactics became increasingly violent, however, Christian, encouraged by his mother, sought a way to withdraw without getting killed in retaliation.
Christian sought assistance from a local police detective who knew his family. The detective, who had retired, referred Christian to Detective Sal LaFerri, who offered to help extricate Christian from the gang if Christian would act as an informant for the police. Christian approached the police warily because many Bronx police officers were "under the thumb" of Cox. Indeed, Cox's girlfriend was a police lieutenant who once tipped him off as to an imminent raid. Despite the personal risk he faced, Christian was a valuable informant. A tip from Christian enabled the police to raid Cox's home and make thirteen drug arrests.
Later, in the fall or winter of 1990, Christian warned Detective LaFerri of Cox's plan to travel to Florida to break into a warehouse where the DEA and FBI stored seized drugs. Upon hearing this, the detective introduced Christian to Mary Galligan, a special agent for the FBI. Galligan instructed Christian to contact her when he arrived in Florida for the planned robbery.10
Because of the suddenness of his departure for Florida with Cox, Christian did not have enough time to phone Galligan. In Florida, Christian stayed with his aunt in Fort Lauderdale while Cox went to survey the warehouse. Upon Cox's return, Cox told Christian that the job could not be done because security was too tight. Cox then asked for the return of $10,000 that he had "fronted" to Christian for this job. When Christian refused the request, Cox stranded Christian in Florida.
While still in Fort Lauderdale, Christian was shot in the shoulder by a man pretending to ask for directions. Christian theorized that the man had been sent by Cox in retaliation for Christian's failure to return the $10,000 fronted to him for the aborted job. Christian was admitted to a local hospital for treatment of the gunshot wounds.
Upon his return from Florida, Christian decided to forsake criminal activity and pursue his G.E.D. degree at Bronx Community College. Special Agent Galligan allegedly stayed in contact with Christian by phoning him at the college twice a week. Upon receiving his G.E.D., Christian moved to Brooklyn and started working as a security guard at the Jacob Javitts Center in Manhattan. He testified that by moving out of the Bronx and by securing legal employment he was attempting to withdraw from the Uprising Posse.
Nevertheless, after Christian had moved to Brooklyn, Cox repeatedly phoned to enlist him in criminal projects. Christian said he always declined. Later, in March 1992, however, Cox, who was "wired" on drugs and acting irrationally, appeared at Christian's apartment, accused Christian of being responsible (as an informant) for a bust in which Cox had lost drugs, and shot Christian in the leg. Christian was seriously injured. Six months later, in September, 1992, Cox again arrived at Christian's apartment. Cox promised that if Christian accompanied him to Baltimore to commit two murders, Cox would consider any debts (occasioned by drugs lost in the raids) repaid. Although Christian testified that he did not in fact owe Cox any money (and had not informed on Cox), he agreed to accompany Cox to Baltimore. Christian was afraid that Cox, who had shot him once, would shoot him again if he refused to participate.
Cox assigned Christian the job of transporting the guns to Baltimore. On the night of September 15, 1992, Christian received the two nine millimeter pistols from their owners, Deaire and Sinclair. He was to take the guns to Baltimore by train the next day. Christian attempted to phone Galligan that night but was informed by a taped message that the FBI office had moved to Long Island.11 Christian did not attempt to contact any other FBI agents or law enforcement officers. The next morning, on September 16, 1992, Cox met Christian. They were together for the entire morning until Cox dropped off Christian at the train station for the trip to Baltimore.
Christian waited several hours for the train, which departed around 4:00 pm.12 He said he was afraid to attempt another call to Special Agent Galligan because of two suspicious men who appeared to be watching him. The men boarded Christian's train, and he surmised that they were monitoring him on behalf of a suspicious Cox. The men did not detrain in Baltimore, however, but continued on toward Washington. Christian admitted that he had no intention of alerting the authorities in Baltimore about the planned murder. Had he not been stopped at the station, he would have completed his mission and the two Baltimore men would have been killed.
Christian was arrested at the Baltimore Amtrak station for firearms possession. Christian told the police that he had been forced to travel to Baltimore because he feared that Cox would kill him if he did not. Thus, Christian claims that he acted under duress. The Court must decide whether, as a matter of law, Christian has proffered sufficient evidence of all three elements of the duress defense to warrant a jury instruction.
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