United States v. Bagcho

• Court: District Court, District of Columbia
• Decided: February 16, 2012
• Docket: Criminal No. 2006-0334
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Crim. Action No. 06-00334 (ESH)

HAJI BAGCHO,

Defendant.

MEMORANDUM OPINION & ORDER

Upon consideration of the government’s Motion in Limine to Preclude Reference to

Duress or Coercion, Jan. 18, 2012 [Dkt. No. 65], and defendant’s opposition, Feb. 13, 2012 [Dkt.

No. 67], the Court will GRANT the government’s Motion. Defendant has not proffered a prima

facie showing of duress, nor has he stated an intention to raise such a defense at trial. See United

States v. Nwoye, 663 F.3d 460, 462–63 (D.C. Cir. 2011); United States v. Ibarra-Pino, 657 F.3d

1000, 1004 (9th Cir. 2011) (“A defendant is not entitled to present a duress defense at trial or

receive a jury instruction on duress unless the defendant makes a prima facie showing of duress

in a pretrial offer of proof . . . or in evidence presented at trial.” (citations omitted)). Rather, in

opposing the government’s motion, defendant states that he wishes to argue only that,

“concerning alleged payments to the Taliban,” he either “paid or risked death or other serious

harm.” (Def.’s Opp’n at 2.) “If it can be shown on cross examination that the Taliban exacted

tribute through fear, intimidation and/or murder, the defense should be allowed to present it to

the jury.” (Id.)

1 The Court disagrees. A defendant may not argue duress without making a prima facie

showing. Nwoye, 663 F.3d at 462; cf. United States v. Clarke, 767 F. Supp. 2d 12, 104 (D.D.C.

2011) (“[Defendant], in essence, argues that he should have been acquitted because the evidence

shows he acted out of fear of serious bodily harm or death and, hence, his actions were not

voluntary. But that is the very definition of a duress defense, and there are clear limitations to a

duress defense under the law, which is presumably why [defendant] did not want the jury to be

instructed on it.”). Moreover, to the extent defendant implies that evidence of fear and

intimidation negates the government’s showing of his mens rea, he is incorrect. “[T]he defense

of duress does not negate a defendant’s criminal state of mind when the applicable offense

requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to

‘avoid liability . . . because coercive conditions or necessity negates a conclusion of guilt even

though the necessary mens rea was present.’” Dixon v. United States, 548 U.S. 1, 7 (2006)

(alteration in the original) (quoting United States v. Bailey, 444 U.S. 394, 402 (1980)).1

It is hereby ORDERED that the government’s motion is granted and defendant is

precluded from raising the issue of duress or making any reference to coercive tactics used by the

Taliban to extract payments. See United States v. Weekly, No. 92-3053, 1992 WL 336990, at *2

n.1 (D.C. Cir. Nov. 13, 1992) (per curiam) (“[Defendant] also claims that the district court erred

in limiting the defense counsel’s closing argument [regarding duress]. This argument was an

attempt to end-run the district court’s refusal to allow [defendant] to present her duress defense.

Given our [conclusion that the district court did not err in refusing that defense], we find no merit

in this claim.”).

SO ORDERED.

1 Here, the applicable offense requires defendant to have acted knowingly or willfully. 21 U.S.C. § 960a (“knowing or intending”). 2 /s/ ELLEN SEGAL HUVELLE United States District Judge

Date: February 16, 2012