          United States Court of Appeals
                       For the First Circuit
                        ____________________
No. 01-2413


                     UNITED STATES OF AMERICA,
                             Appellee,

                                 v.

                           SANJAY SACHDEV,
                       Defendant, Appellant.
                        ____________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]

                        ____________________

                               Before

                       Selya, Circuit Judge,
                  Campbell, Senior Circuit Judge,
                     and Lynch, Circuit Judge.
                        ____________________

     J. Martin Richey, Federal Defender Office, for appellant.

     Denise Jefferson Casper, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.


                        ____________________

                          February 1, 2002
                        ____________________
          LYNCH, Circuit Judge.           At issue in this sentencing

appeal   is   the   proper   standard     for   determining   whether   a

defendant has been physically threatened for purposes of a

downward departure under the coercion and duress guideline,

U.S.S.G. § 5K2.12, p.s. (2000).

          Sanjay Sachdev pled guilty to one count of bank

larceny, 18 U.S.C. § 2113(b) (2000), and sought a downward

departure under U.S.S.G. § 5K2.12.         He argued that he committed

the crime, depositing worthless checks and then withdrawing

$103,000 from his bank account, because he needed to repay a

debt to Atul Patel, and he believed he had been threatened with

physical harm if he did not repay.         The district court held an

evidentiary    hearing,      in   which    it   heard   testimony   from

defendant’s father (by telephone from Thailand) and Patel (by

televideo from California), and agreed to consider defendant’s

statement in the presentence report as testimony.             The court

concluded that, on the facts, it lacked authority to depart

downward for coercion or duress.            Sachdev was sentenced to

imprisonment of one year and one day, a sentence near the low

end of the range.     Sachdev appeals, saying the district court

applied the wrong standard under § 5K2.12 to determine whether

                                   -2-
he had been threatened, and asks that the case be remanded.1        We

affirm.

                                  I.

          The facts, as found by the district court and undisputed from

the evidentiary hearing, are as follows:



          Patel and Sachdev were close friends and neighbors beginning

in 1998. In October 1999, Sachdev approached Patel, asking him to

invest in a plan to purchase a quantity of clothing to resell to a

discount retail store. Patel invested over $90,000 of his personal

savings in the venture, with the understanding that he would receive

his investment back with interest within 30 days after the transaction

was complete.    A month later, Sachdev and his family moved from

California to Boston. In late 1999, at Patel's request, Sachdev repaid

him about $21,000.

          Sachdev's business endeavor did not go as planned, as the

retailer lost interest in purchasing the goods. During the winter and

spring of 2000, Patel and Sachdev were in frequent phone contact, with

Patel trying to ascertain the status of his investment. At some point,

in an attempt to hasten the repayment, Patel falsely told Sachdev that

he had borrowed the investment money and was himself being pressured to


     1    This court denied Sachdev’s motion to remain on release
pending appeal, but expedited his appeal.

                                 -3-
repay his creditors. Sachdev felt the conversations with Patel were

threatening in nature. In March, Sachdev sent Patel his family's

jewelry to hold as collateral. There was also evidence that Sachdev

sought medical assistance for "severe stress-related insomnia" during

April of 2000.

          Patel also called Sachdev's father in Thailand twice, in

March of 2000 and again in April.      Patel testified that he never

physically threatened Sachdev or his family in any of his conversations

with Sachdev or Sachdev's father. Sachdev's father testified that

there were three or four calls from Patel, that Patel said there would

be "trouble" if he was not repaid, that Patel's tone was threatening,

and that the calls made him fear for the safety of his son and his

son's family. Patel also told the father that he intended to seek

legal advice about how to proceed. Patel did, in fact, seek the advice

of an attorney, who assisted him in drawing up a promissory note for

Sachdev to repay Patel by May 4. In the week before April 27, when

Patel faxed Sachdev the promissory note, Patel called Sachdev sixteen

times. After signing the promissory note, Sachdev deposited the bad

check on May 4, 2000, so that he could withdraw the $103,000 on May 11,

2000.   On June 2, 2000, Sachdev deposited another bad check.

          The trial judge found that Patel had called Sachdev with

unusual frequency and that both Sachdev and his father believed Patel

was threatening physical harm. However, she rejected other allegations


                                 -4-
made by Sachdev in his presentence report statement, including

allegations that Patel had threatened to send the Mafia after him and

his family, and that Patel had threatened to fly out to Boston with a

hitman to look for Sachdev. She concluded that Patel was actually only

threatening legal "trouble" and therefore the Guideline's requirement

that the coercion involve a threat of physical injury did not apply.

                                 II.

          Defendant presents an issue of first impression for this

circuit as to what standard a trial judge should apply in determining

whether a defendant has been coercively threatened for purposes of a

downward departure under U.S.S.G. § 5K2.12. We review de novo legal

holdings construing the meaning of the Guidelines and a finding by a

trial court that it lacked discretion to depart. United States v.

Mateo, 271 F.3d 11, 13 (1st Cir. 2001); United States v. Saldana, 109

F.3d 100, 103 (1st Cir. 1997).

          A defense of duress may play two roles in a criminal case.

First, it may be presented at trial in avoidance of criminal liability.

See, e.g., United States v. Freeman, 208 F.3d 332, 341 (1st Cir. 2000).

The duress defense to criminal liability is strict and is unavailable

unless there is no reasonable legal alternative to violating the law

that would also avoid the threatened harm. United States v. Bailey,

444 U.S. 394, 410 & n.8 (1980); United States v. Arthurs, 73 F.3d 444,

449 (1st Cir. 1996).


                                 -5-
          Even if the duress defense to criminal liability is rejected,

a lesser showing of duress may still play a role at sentencing to

permit a downward departure under the Guidelines.   See United States

v. Amparo, 961 F.2d 288, 292 (1st Cir. 1992) ("[T]he type and kind of

evidence necessary to support a downward departure premised on duress

is somewhat less than that necessary to support a defense of duress at

trial."); United States v. Cheape, 889 F.2d 477, 480 (3d Cir. 1989).

Defendant bears the burden of proof by the preponderance of the

evidence of showing eligibility for a Guidelines departure. United

States v. Rizzo, 121 F.3d 794, 801 (1st Cir. 1997). The Guideline

addressing potential departures for duress states:

          If the defendant committed the offense because of serious
          coercion, blackmail or duress, under circumstances not
          amounting to a complete defense, the court may decrease the
          sentence below the applicable guideline range. The extent
          of the decrease ordinarily should depend on the
          reasonableness of the defendant’s actions and on the extent
          to which the conduct would have been less harmful under the
          circumstances as the defendant believed them to be.
          Ordinarily coercion will be sufficiently serious to warrant
          departure only when it involves a threat of physical injury,
          substantial damage to property or similar injury resulting
          from the unlawful action of a third party or from a natural
          emergency. The Commission considered the relevance of
          economic hardship and determined that personal financial
          difficulties and economic pressures upon a trade or business
          do not warrant a decrease in sentence.

U.S.S.G. § 5K2.12.

          Not all types of coercion or duress may be the basis for a

departure. As the Guideline clearly states, economic hardship and



                                 -6-
financial distress are forbidden grounds for departure. Furthermore,

mere duress is insufficient. Id.; see also United States v. Rivera,

994 F.2d 942, 949 (1st Cir. 1993). The duress must be "serious," in

the language of the Guideline. If the conditions are met, departures

based on the grounds described in § 5K1.12 are encouraged.        See

generally United States v. Grandmaison, 77 F.3d 555, 560 (1st Cir.

1996).

          The district court correctly interpreted the Guideline to

require ordinarily that there be threat of physical harm when coercion

is invoked at sentencing as a basis for a downward departure. The

Guideline, we think, encompasses both explicit and implicit threats of

harm. Based on its review of the testimony, the district court found

that Patel made no explicit threats of harm. We read the district

court’s finding, while less clear on the point, as also finding that

there was no implicit threat of harm.

          If the claimed threat is implicit, as defendant argues here,

then questions arise as to how to determine whether there is an

implicit threat that falls within the Guidelines.      The Guideline

instructs that subjective views of the defendant play some role: "The

extent of the decrease ordinarily should depend on . . . the

circumstances as the defendant believed them to be."      U.S.S.G. §

5K2.12. Whether the threats are explicit or implicit, a defendant’s




                                 -7-
subjective belief that a threat has been made, even if in good faith,

is not alone a ground for departure.

          The district court must also objectively determine whether

a reasonable person in defendant’s position would perceive there to be

a threat, explicit or implicit, of physical injury, substantial damage

to property, or similar injury resulting from the unlawful action of a

third party (or from a natural emergency). 2          In making this

determination, particularly where the claim involves implicit threats,



     2     There may be room to consider whether a defendant falls into
a group well recognized to have particular vulnerability to coercion or
duress for Guideline purposes, such as those suffering from battered
person’s syndrome. The Ninth Circuit adopted such an approach in
United States v. Johnson. 956 F.2d 894, 898-901 (9th Cir. 1992); see
also United States v. Smith, 987 F.2d 888 (2d Cir. 1993) ("Testimony as
to [defendant's] unusual susceptibility to coercion would be relevant
in determining whether he had an honest but unreasonable belief that he
was being coerced."); cf. United States v. Lopez, 938 F.2d 1293, 1298
(D.C. Cir. 1991) (Guideline discouraging consideration of socioeconomic
status does not foreclose consideration of domestic violence and its
effect on defendant). Under Johnson, a defendant's sincerely held
belief that she was in physical danger might warrant a departure, even
if that belief could not be deemed objectively reasonable by an
individual without such a history. 956 F.2d at 899. Alternatively,
Johnson may be understood as holding that, as an objective matter, a
woman who has been beaten in the past may reasonably view something far
less than an explicit threat as constituting a realistic threat of
physical harm. Cf. United States v. Anderson, 139 F.3d 291, 300 (1st
Cir. 1998) (noting without deciding issue of whether the fact that
defendant had been abused once in past by partner was sufficient to
support a duress departure). Such an approach is consistent with
U.S.S.G. § 5H1.3, which prohibits consideration of mental and emotional
condition except as provided in the general provisions of Chapter 5.
Chapter 5 includes the duress guideline at issue here.
      This defendant presents no such special condition and so we need
not decide the issue.


                                 -8-
there are at least three questions to be considered: (i) the actual

intent of the person alleged to have made the threat; (ii) the

subjective understanding of the defendant; and (iii) whether an

objective third party could reasonably consider it to be a serious

threat of physical injury (or another category of threat recognized by

the guideline).     The ultimate issue remains that of whether the

defendant committed the offense "because of" serious coercion,

blackmail, or duress. See United States v. Anderson, 139 F.3d 291, 300

(1st Cir. 1998) (no error where decision not to depart rested on the

lack of "evidence of the coercive effect of [codefendant's] violence

during . . . the relevant time period").

            The Guideline's focus on the coercive effect on the defendant

is the underlying logic, although not articulated there, of United

States v. Pozzy, 902 F.2d 133 (1st Cir. 1990). In Pozzy, this court

reversed a duress downward departure on the ground that no evidence

supported the view that a wife was coerced or threatened physically

into taking an active role in her husband’s cocaine business. Id. at

139. Rather, the evidence was that her motivation was the money to be

made in the drug trade. Id. This court rejected the district court’s

reasoning that the wife was under an implicit threat because she had no

alternative but to stay with her husband and help him or leave the

marriage.    Id.




                                   -9-
          Here, the district court explicitly found that there were no

actual threats and that Patel did not intend any such threats.

Although the trial judge did not explicitly state that she found

Sachdev's perception to be unreasonable, she did hold that the threat

was missing "an objective component."3 We read this as a finding that

Sachdev's belief that he was in physical danger was not reasonable. We

believe that on these facts such a finding was well within the purview

of the district court. Given these factual findings, the district

court was correct in concluding that it did not have authority to

depart downward from the sentencing range prescribed by the Guidelines.

          Affirmed.




     3     Following this statement by the trial judge, counsel for
Sachdev attempted to argue that Sachdev's father was a reasonable
person who also perceived there to be a physical threat, and therefore
the objective component was satisfied. The trial judge then reiterated
her conclusion that she had no authority to depart under § 5K2.12.

                                 -10-
