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Seventh Circuit Rejects Federal Prisoner’s Necessity Defense

Seventh Circuit Rejects Federal Prisoner's Necessity Defense

The Seventh Circuit found that a federal prisoner had failed to prove the requisite elements of the "necessity" defense in a prison weapon possession prosecution.

In 1992, David Sahakian was sentenced to 360 months in federal prison and was confined at the United States Penitentiary at Marion, Illinois (USP-Marion), "a federal maximum security prison with a well documented history of violence." See, e.g., United States v. Tokash, 282 F.3d 962, 966 (7th Cir. 2002) and Caldwell v. Miller, 790 F.2d 589, 592-93 (7th Cir. 1986).

During the late 1990s, the Aryan Brotherhood (AB) and the DC Blacks were rival gangs at USP-Marion. The AB "maintained a running oral 'hit list' of black prisoners that, if encountered, should be attacked and/or killed." AB members "and associated gangs such as the 'Dirty White Boys,' carried 'shanks' in their rectal cavities" to avoid detection by guards.

On May 18, 1999, Dirty White Boys members Richard McIntosh and Carl Knorr stabbed black prisoner Terry Lamar Walker to death in front of two USP-Marion guards. During the ensuing investigation, an AB/Dirty White Boys associate turned informant. He identified Sahakian as an AB "shot caller," or leader, and said Sahakian ordered Walker's murder as a favor to the Mexican Mafia gang.

The informant told guards that AB members kept shanks concealed in their rectums. He provided a list of AB members, including Sahakian, whom he suspected were carrying concealed shanks.

Sahakian admitted to having a shank in his possession. It took him 15 minutes "to remove the shank, wrapped in plastic, from his rectal cavity. Inside of the plastic was a four and one-half inch piece of sharpened metal covered with a plastic tip and wrapped in toilet paper."

After months of investigation and four superseding indictments, Sahakian was charged with first degree murder, 18 U.S.C. §§ 1111, 7(3) and (2), conspiracy to commit first degree murder, 18 U.S.C. § 1117, and possession of a weapon in prison, 18 U.S.C. § 1791(a)(2). The district court granted the government's motion to prevent Sahakian's reliance upon the affirmative defense of "necessity."

Following a 69-day jury trial and eight days of deliberations, a hung jury was declared on the murder and conspiracy charges, which were dismissed. The jury found Sahakian guilty of the weapons offense and he was sentenced to an additional 60 months in prison.

On appeal, the Seventh Circuit rejected Sahakian's argument that the lower court improperly excluded the "necessity" defense. Citing Tokash, a case based on the same incident for which Sahakian was prosecuted [PLN, April 2003, p.29], the court explained that the necessity defense requires a showing that the defendant "faced an imminent threat of serious bodily injury or death and that he had no reasonable legal alternative to avoid that threat." The appellate court also observed that "imminent" should be narrowly construed in the prison context and requires "more than a 'generalized unknown time in the future.'" The threat must be immediate and there can be no reasonable alternative to violating the law.

The appeals court found that Sahakian had failed to establish that he faced an imminent threat based upon a rumor that there was a contract out on his life. Additionally, the shank, which took him 15 minutes to retrieve, would have been of no use to him if he faced an imminent threat. "It is unlikely that a prospective attacker would extend the courtesy of allowing him to retrieve the knife before taking his life," the court observed. Finally, the Seventh Circuit found that Sahakian fell far short of establishing "that he had exhausted all other reasonable legal alternatives before he decided to take matters into his own hands." See: United States v. Sahakian, 453 F.3d 905 (8th Cir. 2006).

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Related legal case

United States v. Sahakian