US v. Osseiran, Crim. No. 90-10020-Y.

• Decision Date: 16 July 1992
• Docket Number: Crim. No. 90-10020-Y.
• Citation: 798 F. Supp. 861
• Parties: UNITED STATES of America, v. Ali OSSEIRAN, Michael Fisher.
• Court: U.S. District Court — District of Massachusetts

798 F. Supp. 861

UNITED STATES of America, v. Ali OSSEIRAN, Michael Fisher.

Crim. No. 90-10020-Y.

United States District Court, D. Massachusetts.

July 16, 1992.

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Robert A. George, Balliro, Mondano & Balliro, Richard M. Egbert, John C. McBride, Boston, Mass., Anthony Traini, Randolph, Mass., for defendants.

Clayton Spencer, U.S. Atty., Boston, Mass., for U.S.

MEMORANDUM

YOUNG, District Judge.

After an extensive undercover investigation, government authorities set up a "reverse sting" operation involving Ali Osseiran. Acting in accordance with a plan agreed to by Osseiran, government agents met Osseiran's courier, one Michael Haloui, at Logan Airport, matched separate halves of a torn dollar bill, and then turned over to Haloui containers of what purported to be illicit drugs but what were, in fact, actually flour. Once Haloui had walked a short distance carrying the "drugs," he was arrested. Meanwhile, in downtown Boston, Osseiran was paying for the "drug" shipment with finely-cut diamonds — which turned out to be glass. Osseiran was likewise arrested by government agents.

Back at the airport, Haloui — deeming full cooperation the better part of valor — revealed that his instructions from Osseiran directed him to deliver the package of alleged contraband to an individual at a liquor store in East Boston. The agents determined, therefore, to make a "controlled delivery" to see who else they might nab. Unfortunately, they lost precious time trying to rent an unmarked car in which to drive Haloui to the delivery point. When they finally arrived at the liquor store, Michael Fisher was waiting but, as he had been making a series of increasingly nervous calls to Osseiran's diamond emporium, he was forewarned and refused to take delivery from Haloui.

In due course, Haloui and Osseiran were indicted for attempting and conspiring to possess with intent to distribute more than five kilograms of cocaine and more than one kilogram of heroin in violation of 21 U.S.C. § 846 (1988). Fisher was similarly indicted with respect to cocaine only. Claiming he had no knowledge of the contents of the container he was sent to pick up, Haloui was put to trial first and acquitted. Thereafter, when it became clear that Osseiran would raise an entrapment defense, Fisher — denying any involvement with him — moved for a severance but this Court denied the motion.

At their joint trial, Osseiran's counsel vigorously cross-examined the government's hired confidential informants — themselves former drug dealers from Pakistan — especially one Aziz Malik. Mid-way through the case in chief, however, Osseiran struck a bargain with the government, agreeing to plead guilty in return for the recommendation of a three year sentence and a promise that the government would not call him to testify against Fisher. The Court accepted Osseiran's plea on October 10, 1990. Fisher did not move for a mistrial and, after six more days of trial, he was convicted of all charges on October 16, 1990.

The trial, while factually interesting, is legally unremarkable. It is the post-trial proceedings that require written analysis.

A. Post-Trial Proceedings: Osseiran

The government's recommendation of a three year sentence for Osseiran is substantially below the applicable sentencing guidelines range of 151 to 188 months (12 years 7 months to 15 years 8 months). U.S. Sentencing Commission, Guidelines Manual ("U.S.S.G.") Ch. 5, Pt. A, Sentencing Table (offense level 34; criminal history category I) (Nov. 1991); (Presentence Report, February 14, 1991, at 8-9; Disposition Tr., February 20, 1991, at 31). The government justified this proposed downward departure at the time of Osseiran's plea not on the ground that Osseiran was going to provide "substantial assistance" to it, see U.S.S.G. § 5K1.1 — after all, the government expressly promised that it would not call Osseiran as a witness against Fisher — but rather on the fact that "coercion" had played some part in Osseiran's crimes, see U.S.S.G. § 5K2.12.¹ See generally United States v. Connell, 960 F.2d 191, 196-97 (1st Cir.1992) (discussing "sentencing factor manipulation").

Such a recommendation is a rather remarkable expansion of section 5K2.12 and, indeed, makes this case one of first impression in this Circuit since the "coercion" justifying the downward departure arises not from the conduct of any of Osseiran's confederates, charged or uncharged. Compare United States v. Amparo, 961 F.2d 288, 291-292, (1st Cir.1992) (appellant sought downward departure based on coercive threats by confederates); United States v. Harotunian, 920 F.2d 1040, 1044, 1046 (1st Cir.1990) (same). In contrast, mitigating "coercion" here arises from the threatening role of the government's own well-paid confidential informant who was a central figure in organizing the narcotics transaction to which Osseiran offered to plead guilty. Recognizing the anomalous nature of the government's recommendation, the Court explicitly pointed out that if the government urged such an expansive view of section 5K2.12 upon the Court in order to obtain Osseiran's plea, it would later be judicially estopped from reverting to a narrow construction in like circumstances when another defendant sought a downward departure upon identical grounds. After careful consideration, the government agreed. (Disposition Tr., February 20, 1991, at 32-35.)

Accordingly, this Court turned to a consideration of whether, both legally and factually, a downward departure pursuant to section 5K2.12 was authorized due to the government's "coercion" of Osseiran.²

Guideline section 5K2.12 distinguishes "coercion" as a defense to prosecution from "coercion" as a mitigating factor in sentencing, since the latter can be based upon "circumstances not amounting to a complete defense." See e.g., Amparo, 961 F.2d at 292. The distinction between these forms of coercion has long been unmistakable at common law.

Defendants who raise "coercion" as a shield against prosecution must proffer evidence sufficient to meet three objective tests, i.e., that their violation of law was compelled by threats which were immediate, grave, and inescapable. United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984). Only such a proffer on all three aspects of duress compels the trial judge to give a particularized jury instruction under this defense. See United States v. Feldhacker, 820 F.2d 279, 280 (8th Cir. 1987).

The First Circuit, in accord with this general tripartite standard, requires defendants offering coercion as an excuse to show the compulsion to be "present, immediate, and impending, and of such a nature as to induce a well-founded fear of death or at least serious bodily injury. And there must be no reasonable opportunity to escape the compulsion without committing the crime." Rhode Island Recreation Center, Inc. v. Aetna Casualty & Surety, 177 F.2d 603, 605 (1st Cir.1949).³ A defendant will not prevail if his own recklessness placed him where coercive threats were probable. United States v. Wheeler, 800 F.2d 100, 107 (7th Cir.1986); United States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir. 1982). Accord Commonwealth v. Robinson, 382 Mass. 189, 199-200, 415 N.E.2d 805 (1981).

By contrast, the defendant who argues that coercion should mitigate punishment faces no such daunting obligations under the guidelines. Mitigation of sentence can be appropriate where threats impacting on a defendant are neither grave, immediate, nor inescapable. The guidelines encompass as potentially "coercive" threats which only amount to blackmail or "substantial" menace to property. U.S.S.G. § 5K2.12. The subjective fearfulness of a particular defendant who wrongly believes himself compelled by such a threat to act unlawfully may be sufficient to show coercion for sentencing purposes.

Mindful of these distinctions, the Third Circuit vacated and remanded a decision by a district judge who reluctantly refused to consider a downward departure urged on coercion grounds because the jury had rejected coercion as a trial defense. United States v. Cheape, 889 F.2d 477, 478-79 (3d Cir.1989).⁴ The refusal was considered understandable but wrong, since "if section 5K2.12 is to be accorded meaningful status, ... we must read it as providing a broader standard of coercion as a sentencing factor than coercion as required to prove a complete defense at trial.... The guidelines do not require proof of immediacy or inability to escape...." Id. at 480.

The relaxation of the coercion trial defense standard for sentencing purposes does not mean that defendants seeking downward departure need only voice their sensibility of duress in committing crimes. The bare claim by a driver that he carried out cocaine delivery instructions only because he "would have suffered the wrath of his co-conspirators" had he declined was insufficient to show duress under section 5K2.12 of the guidelines where the proffered evidence did not show that threats of a sufficiently serious nature were made. United States v. McCrary, 887 F.2d 485, 488-89 (4th Cir.1989).

The First Circuit sharpened the limits of coercion under the guidelines by vacating and remanding a downward departure in the sentencing of Susan Pozzy, who was convicted of cocaine trafficking along with her husband. United States v. Pozzy, 902 F.2d 133, 137-39 (1st Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990). The district court sentenced Ms. Pozzy below the guidelines range upon a finding of duress, finding inter alia that "she got into this matter because she loved her husband and because he had a drug habit, and he wanted her to do it, and she really had no alternative but to leave or stay there and participate." Id. at 137. The First Circuit rejected this subjective conception of duress and insisted upon substantive evidence of a relationship between some actual threat and the defendant's...