Tuesday, March 20, 2007

Court affirms conviction for attempted support of terrorists, rejecting claims of entrapment, outrageous government conduct, and juror misconduct

In United States v. Lakhani, No. 05-4276 (3d Cir. Mar. 16, 2007), the Third Circuit affirmed the defendant’s conviction and 47-year sentence. Lakhani, a now-71-year-old trader of Indian descent, was convicted of attempting to provide material support to terrorists and other offenses following a jury trial for his role in the attempted importation of shoulder-fired surface-to-air missiles. Much of the evidence at trial consisted of Lakhani’s recorded conversations with a government informant who asked the defendant to procure missiles for his terrorist group, and who Lakhani "enthusiastically" agreed to help. Over the course of almost two years, Lakhani made various assurances to the informant that a missile would soon be available. In the end, however, the only weapon that the defendant "obtained" was a mock missile designed by cooperating Russian and American authorities.

The Court of Appeals denied each of Lakhani’s arguments on appeal. First, it rejected his defenses of entrapment and outrageous government conduct. The Court held that the government proved Lakhani’s predisposition by showing his "ready response to the inducement" through numerous examples of his "multiple, self-financed trips to the Ukraine in search of a missile" and other evidence. The fact that the government was on both sides of the transaction, buyer and seller, was not sufficiently outrageous to merit a dismissal because "where the Government is investigating ‘fleeting and elusive crime[s],’ it may require more extreme methods of investigating, including the supply of ingredients.’"

Lakhani’s third point on appeal involved juror misconduct. Several months after the verdict, one of the jurors stated on a Chicago public radio program, This American Life, that she believed that Lakhani was entrapped and that she was pressured by another juror to vote guilty (click here to listen to program). The juror’s comments prompted the defendant to move for further investigation of the jury deliberations and for a new trial, which the district court denied. The Court of Appeals affirmed, finding that the juror’s statements, "though . . . hardly heartening," do not qualify as competent evidence to impeach a verdict under Fed.R.Evid. 606(b).

Finally, the Court affirmed Lakhani’s 47-month sentence, which represented the statutory maximum on each count. Although the district court would have been entitled to consider the government’s "pervasive role in this case," it did not, and the Court of Appeals found no reason to disturb this conclusion. The Court also rejected Lakhani’s argument that the district court’s general deterrence justifications for the sentence were "inapt," since no sentence would be long enough to deter a true terrorist. To accept this argument, the Court explained, would require the courts "to abandon their sworn duty in the face of an irrational enemy."

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