                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0192n.06

                                           No. 09-1784
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Mar 29, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
NAJIB SHEMAMI,                                    )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )



       Before: McKEAGUE and STRANCH, Circuit Judges, and MAYS, District Judge.*

       JANE B. STRANCH, Circuit Judge.                Defendant Najib Shemami (“Shemami”), a

naturalized U.S. citizen of Iraqi origin, met with the Iraqi Intelligence Service (“IIS”) on three

occasions in 2002, during which he informed the IIS about the activities of other Iraqi expatriates

living in the Detroit area and provided observational information to the IIS about various military

actions. These discussions eventually led to criminal charges against Shemami, all of which were

dismissed in exchange for his conditional guilty plea to the charge of violating the International

Emergency Economic Powers Act. Shemami asks this court to find error in the district court’s

decision not to allow him to present an affirmative defense of duress. For the reasons articulated

below, we affirm the district court’s decision.




       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
I.     Background

       A.      Factual Background

       Shemami traveled to Iraq from Detroit, Michigan, in September 2002, November 2002,

December 2002, and January 2003. In both November and December, Shemami’s trips included a

brief excursion from Iraq to visit Turkey before returning to Iraq. During his November trip,

Shemami was arrested by Iraqi police but was released with the assistance of officials from the IIS.

Shemami alleges that these trips were humanitarian in nature and that he took money, clothing and

medicine to family friends in Iraq. The government alleges that Shemami operated a business for

profit by smuggling money and goods into Iraq during the U.S. embargo.

       While in Iraq, Shemami had several run-ins with the IIS during which he supplied the IIS

with sensitive information, primarily regarding various Iraqi expatriates living in the United States.

As early as September 19, 2002, Shemami met with IIS officials and told them about the Federal

Bureau of Investigation’s (“FBI”) interest in his trips to Iraq and Turkey. On December 19, 2002,

Shemami gave the IIS information about four Iraqi-Americans who he claimed were guides for the

U.S. military in Iraq. He also told the IIS about possible candidates for the Iraqi presidency after the

U.S. invasion. On December 28, 2002, Shemami gave the IIS details of his interview by the FBI

regarding a specific Iraqi expatriate living in the United States. On December 29, 2002, Shemami

provided information about military operations he had observed in Turkey. Shemami gave a final

report, which is not part of the indictment, to the IIS on his trip to Iraq in January 2003.

       Subsequent to his indictment, Shemami told the FBI that he had provided certain information

to the IIS, but that he did so “because he had to.” He noted his November 2002 arrest while in Iraq

and stated that he was blindfolded and taken to an unknown location, and warned by Iraqi police

officers not to carry large sums of money into the country.
          B.     Procedural Background

          Shemami was charged in a four-count indictment: (1) Conspiracy in violation of 18 U.S.C.

§§ 371, 951(a); (2) Acting as a Foreign Agent without Notifying the Attorney General in violation

of 18 U.S.C. § 951(a)); (3) Violating the International Emergency Economic Powers Act (“IEEPA”),

50 U.S.C. § 1701 et seq.; and (4) False Statements to the FBI in violation of 18 U.S.C. § 1001(a)(2).

          In anticipation of trial, the government made a motion in limine to preclude Shemami from

presenting a duress defense, which was subsequently denied without prejudice pending discovery.

The district court later granted the renewed motion to exclude evidence of duress. Shemami then

entered into a Rule 11 plea agreement with the government, pleading guilty only to Count Three, the

IEEPA violation, conditioned on his ability to appeal the district court’s grant of the government’s

motion in limine on the question of duress.

          The district court accepted Shemami’s guilty plea and sentenced him to incarceration within

the guidelines range. Shemami now argues that the trial court’s exclusion of evidence in support of

an affirmative defense of duress deprived him of his Sixth Amendment right to present a defense.

II.       Analysis

          A.     Standard of Review

          “Whether a defendant has established a prima facie case of duress is a question of law, and

on review, we consider it de novo.” United States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005).

          B.     Shemami Has Failed to Make a Prima Facie Showing of Duress

          This Circuit has established a five-element test for establishing an affirmative defense of

duress:

          (1) that defendant was under an unlawful and present, imminent, and impending
          threat of such a nature as to induce a well-grounded apprehension of death or serious
          bodily injury; (2) that the defendant had not recklessly or negligently placed himself
        in a situation in which it was probable that he would be forced to choose the criminal
        conduct; (3) that the defendant had no reasonable, legal alternative to violating the
        law, a chance both to refuse to do the criminal act and also to avoid the threatened
        harm; (4) that a direct causal relationship may be reasonably anticipated between the
        criminal action taken and the avoidance of the threatened harm; [and] (5) that
        defendant did not maintain the illegal conduct any longer than absolutely necessary.

Johnson, 416 F.3d at 468.

        In order to present this defense to the jury, the defendant must present colorable evidence of

each element of the test. If the defendant’s evidence “supporting one element is insufficient to

sustain it even if believed, the trial court and jury need not be burdened with testimony supporting

other elements of the defense.” Id. (quoting United States v. Bailey, 444 U.S. 394, 416 (1980))

(internal quotations omitted). Offering evidence of the defense is proper “if the defendant produces

evidence upon which a reasonable jury could conclude by a preponderance of the evidence that each

of the . . . five requirements is met.” United States v. Ridner, 512 F.3d 846, 850 (6th Cir. 2008).

        In the instant case, the trial court allowed Shemami a pre-trial opportunity to proffer evidence

in support of his duress defense, as well as a second opportunity to supplement that proffer. The

evidence that Shemami would present at trial consisted of the following:

        1.     His own testimony, including a statement that he was imprisoned by the IIS

approximately 40 years ago and tortured during his captivity;

        2.     Documentary evidence in the form of a Coalition Provisional Authority Order

dissolving the Iraqi Intelligence Service;

        3.     A video depicting atrocities carried out by the Iraqi regime obtained by a research

institute;

        4.     Two History Channel videos on Saddam Hussein’s regime in Iraq;

        5.     Testimony of Sandra Mackey, a proposed expert on the Middle East;
       6.      Anecdotal testimony of two Iraqi-Americans about conditions in Iraq; and

       7.      Cross-examination of two witnesses proposed by the prosecution, a former IIS official

and a former Department of Defense official.

       Despite this proffer, Shemami has failed to establish at least one essential element of the

duress test. In particular, the voluntary nature of Shemami’s trips to Iraq tends to negate any

evidence he has proffered of elements two, three, and five of the Johnson test.1 Shemami offers no

explanation as to why he continued to return to Iraq and place himself in harm’s way even after run-

ins with the IIS, nor does Shemami make any allegation that the IIS had an ability to reach him in

the United States. Somewhat surprisingly, Shemami’s brief to this Court explains the real reason

he gave the IIS information about fellow expatriates - that he had personal squabbles with those

individuals and wanted revenge - not because he was afraid of retribution by the IIS.

       The voluntary trips weigh against Shemami with particular force, as “the keystone of the

[duress] analysis is that the defendant must have no alternative - either before or during the event -

to avoid violating the law.” Ridner, 512 F.3d at 850 (citing United States v. Singleton, 902 F.3d 471,

473 (6th Cir. 1990)). In this case, Shemami could have avoided violating the law by simply not

returning to Iraq, particularly in December 2002, after his alleged November arrest. However,

Shemami did return, forgoing a chance to avoid the criminal act and the harm he allegedly feared,

and recklessly placing himself in a situation in which it was probable the IIS would seek information

from him again.

       Finally, it is worth noting that the duress test outlined in Johnson contemplates the proffer

of evidence specific to the individual defendant. Johnson, 416 F.3d at 468 (“that defendant was

       1
        In fact, the burden of proving duress as an affirmative defense is placed on the defendant
precisely because “consciously performed acts are presumed voluntary.” Vance v. Terrazas, 444
U.S. 252, 268 (1980) (quoting Nishikawa v. Dulles, 356 U.S. 129, 144 (1958)).
under . . .”; “that the defendant was not . . .”) (emphasis added). Shemami, for the most part,

presents generalized evidence about the conditions in Iraq at the time in question and about the harsh

tactics used by the IIS against the general population. Other than his own proposed testimony, he

has proffered no evidence of how the IIS treated or threatened to treat him. While that testimony

must not be discounted, it is insufficient in this case to satisfy every element of the Johnson test.

        Having established that Shemami did not make out a prima facie case of duress, we are left

with Shemami’s argument that his constitutional rights were violated by the exclusion. Evidentiary

rules, properly applied, typically pass muster under constitutional scrutiny in light of the defendant’s

right to present a defense.2 “Rules excluding evidence do not abridge an accused’s right to present

a defense so long as they are not arbitrary or disproportionate to the purpose they are designed to

serve.” Boggs, 226 F.3d at 743 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)); see

also Lakin v. Stine, 80 F. App’x 368, 380-81 (6th Cir. 2003) (dissent).

        Shemami has not argued that the Johnson test is an arbitrary formulation of duress or that

the results of its application are somehow disproportionate to the purpose it is designed to serve.

Shemami simply argues that, “[w]here a defendant claims an affirmative defense, and that defense

finds some support in the evidence and in the law,” the defendant is entitled to present that theory

of defense to the jury. That is not true where a properly applied evidentiary rule authorizes the

exclusion. Shemami fails to satisfy the evidentiary rule governing the presentation of a duress

defense, as his claimed duress defense does not have sufficient support in the evidence he proposed

to warrant burdening a jury with it.



        2
        “The right to present a complete and meaningful defense emerges from the Sixth
Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment.”
Boggs v. Collins, 226 F.3d 728, 743-44 (6th Cir. 2000) (citing Crane v. Kentucky, 476 U.S. 683, 690
(1986) and Chambers v. Mississippi, 410 U.S. 284, 302 (1974)).
III.   Conclusion

       The decision to exclude evidence of duress did not violate Shemami’s constitutional right

to present a defense. Therefore, we affirm the district court’s decision to exclude evidence of an

affirmative defense of duress.
