United States v. Mussayev

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-7-2003

USA v. Mussayev

Precedential or Non-Precedential: Precedential

Docket No. 02-1924P

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PRECEDENTIAL

Filed August 6, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1924

UNITED STATES OF AMERICA

v.

ALEX MUSSAYEK,

a/k/a TSION MUSSAYEK,

a/k/a ALEXANDER MUSSAYEL,

a/k/a ALEXANDER MUSSYEV

Tsion “Alex” Mussayev,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 00-cr-00180)

District Judge: Honorable Anne E. Thompson

Argued February 3, 2003

Before: SLOVITER, RENDELL and STAPLETON,

Circuit Judges.

(Filed August 6, 2003)

Chester M. Keller, Esq. [ARGUED]

Andrea D. Bergman, Esq.

Office of Federal Public Defender

972 Broad Street

Newark, NJ 07102

Counsel for Appellant

2

George S. Leone, Esq.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Thomas Ott, Esq. [ARGUED]

United States Department

of Justice

Organized Crime & Racketeering

Section

1301 New York Avenue, N.W.,

Room 715

Washington, DC 20005

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

Alex Mussayek1 appeals from the final judgment of

conviction and sentence entered against him by the District

Court on March 27, 2002, after he was found guilty by a

jury of one count each of conspiracy to commit extortion

and interstate travel in aid of racketeering. We will affirm.

FACTS

Alex Mussayek emigrated from Israel to the United States

in 1979. He settled in Brooklyn with his family, and

established himself as owner of a small flower and candy

business. Over several years, Mussayek was apparently

victimized by two individuals, Ike Fogel and Phillip Ben

Jacob, in separate scams. Mussayek claims to have been

first defrauded by Fogel in a transaction involving $400,000

worth of “diamonds,” which apparently later turned out to

be nothing but cubic zirconia. Attempting to recoup his

losses, Mussayek then apparently committed $140,000 to a

1. In the caption of this case and in the record, Appellant’s surname is

spelled, variously, as “Mussayek,” Mussayel,” “Mussyev,” and

“Mussayev.” Throughout our opinion we will use “Mussayek,” the

construction adopted in both parties’ briefs.

3

partnership with Ben Jacob, which ultimately dissolved

with Ben Jacob refusing to return any of Mussayek’s

investment.

Mussayek’s brief depicts a persevering immigrant trying

to live out “the classic American dream,” struggling to make

a living and support his family while being swindled by two

supposed “friends” of over $500,000. Not surprisingly, the

government paints a very different picture of Mussayek, as

a deal maker involved in a variety of illicit ventures who

sought the help of undercover agents — who he thought

were “Italian Mafioso” — in connection with several of them.

Most relevant to this appeal, Mussayek enlisted two agents

to assist with a plan carried out with another business

associate, Joseph Aharanoff, to extort money from Ben

Jacob and Fogel in furtherance of Mussayek’s “deep

commitment,” as Mussayek has termed it, to recover his

money.

Following the undercover investigation, Mussayek and

Aharanoff were indicted on charges of conspiracy to commit

extortion against Ben Jacob and Fogel.2 Pursuant to an

agreement with the government, Aharanoff pled guilty and

testified against Mussayek. At trial, the jury heard

extensive evidence relating to the conspiracy, including

numerous tape recorded conversations between Mussayek

and the agents, as well as the testimony of Aharonoff,

Mussayek himself, and both of the undercover agents,

Zyckowski and Calvarese. Aharonoff and the two agents

testified consistently that Mussayek was outraged and

preoccupied with the supposed betrayal by Fogel and Ben

Jacob and was determined that the agents should, if

necessary, break their legs or kill them. In addition, they

testified that Mussayek wanted to double his money or

obtain $1 million from Fogel, and was prepared to kidnap

his daughter. Mussayek warned the agents that Ben Jacob

had guns with silencers and agreed to pay them twenty-five

percent of their recovery, giving them a $5,000 down

2. Mussayek and Aharanoff were also indicted for money laundering

activity allegedly relating to transactions involving proceeds from illegal

drug dealings. As Mussayek was acquitted of those charges, however, we

are concerned here only with the charges relating to extortion.

4

payment. The jury further heard that Aharanoff had once

traveled to Israel, where he was later joined by Mussayek,

in an effort to locate Fogel, and that subsequently

Aharanoff and Agent Calvarese were on their way to Israel

to “complete Mussayek’s mission” when they were stopped

by the Federal Bureau of Investigation at the John F.

Kennedy International Airport in New York.

Ultimately, the jury found Mussayek guilty of conspiracy

to commit extortion and interstate travel in aid of

racketeering. On appeal Mussayek levels eight challenges to

the District Court’s handling of his trial and sentencing. We

will focus on three of his claims, all related to his

sentencing, as the remainder are fairly straightforward and

will be addressed briefly in the margin.3

The Pre-Sentence Report recommended, and the

government argued, that Mussayek’s base offense level

should be enhanced two levels under U.S.S.G. § 2B3.2(b)(1),

because it “involved an express or implied threat of death,

bodily injury, or kidnapping.” Mussayek objected, stating,

“This enhancement presumes that the victim in fact

received a threat . . . . [N]o reasonable threats were ever

communicated to any purported ‘victim’ and thus the

enhancement cannot apply.” Addendum to Pre-Sentence

Report, p. 18, ¶ 2.

Mussayek similarly objected to another proposed

enhancement, under U.S.S.G. § 2B3.2(b)(3)(B), for

“preparation to carry out a threat of . . . serious bodily

3. Contrary to Mussayek’s contentions, we conclude that: (1) the District

Court adequately instructed the jury on two occasions that the

indictment was not evidence, and it did not abuse its discretion by

refusing to give a third such instruction; (2) there was no abuse by the

District Court in curbing the questioning of a hostile witness, Aharonoff,

when the interrogation became argumentative and repetitive; (3) there

was no plain error in the District Court’s admission of evidence of

Mussayek’s involvement with a controlled substance, “khat;” (4) the

application of a sentencing enhancement under U.S.S.G. § 3B1.1(c) for

Mussayek’s supervisory role was not clearly erroneous; and (5) we lack

jurisdiction to review the District Court’s exercise of discretion in

connection with its refusal to depart downward based on family

circumstances, as it clearly considered this argument but was not

persuaded by it.

5

injury.” Mussayek contended that he told the agents to talk

to Fogel and Ben Jacob “nicely,” stating at one point, “Talk

to him nicely everything, I don’t wanna kill the guy, I don’t

wanna make him damage something.” Addendum, ¶ 3.

Mussayek’s counsel stated:

While Mr. Mussayek provided information about both

Ike Fogel and Phillip Ben Jacob, it was in order to

assist the agent in locating them and in identifying

assets. Mr. Mussayek gave information about Ike Fogel

and Phillip Ben Jacob in an effort to get his money

legally. He told Agent Calvarese where Mr. Ben Jacobs’

office was located and provided a phone number.

Addendum, ¶ 3. Counsel also argued that Aharanoff ’s

travel to Israel was for personal reasons, not to obtain

information about Fogel for the purpose of later extorting

him.

In addition to arguing against the government’s proposed

enhancements, Mussayek urged the District Court to grant

him a downward departure for victim provocation, under

U.S.S.G. § 5K2.10, based on the “[un]clean hands” of his

debtors, Fogel and Ben Jacob, i.e., their unethical and, at

least in the case of Fogel, perhaps illegal, taking of money

from him.

The District Court ruled against Mussayek on all three

sentencing issues. The court held first that the “threat”

enhancement applied, reasoning that if the conviction was

for conspiracy, the threat need not be communicated. It

noted: “If [the threat] was communicated to the person who

was supposed to carry it out, and it was in this case and

the jury so finds, then it seems to me that the argument

cannot prevail.” The District Court also applied the

“preparation” enhancement, stating:

Whether you characterize the trip to Israel as

Aharonoff was going to make the trip anyway or not,

the specific locating of the victim in Israel was clearly

directed by the defendant. That in and of itself would

seem to me clearly to be preparation to carry out the

threat.

Finally, the court had little difficulty in refusing to apply a

departure downward for victim conduct under § 5K2.10.

6

Under its view, the guideline envisioned a situation in

which the victim’s conduct was more “directly provocative,”

and “contributed to the danger presented,” whereas here

there was only a “debt owed” such that the “redress . . .

appropriate would be a lawsuit, a resort to a report to the

police.”

Mussayek now challenges the District Court’s disposition

of all three of these sentencing issues. We can find no

reversible error, and will address each argument in turn.4

I. Enhancement for Threat of Death, Bodily Injury or

Kidnapping under U.S.S.G. § 2B3.2(b)(1)

Mussayek first raises the novel question as to whether, in

order for the base offense level for conspiracy to commit

extortion to be enhanced because it “involved an express or

implied threat of death, bodily injury, or kidnapping,”

U.S.S.G. § 2B3.2(b)(1), the threat must have been

communicated to the victim. As we noted above, the

District Court relied on the fact that the underlying

conviction was for conspiracy, and the fact that the threat

was communicated to persons who were to carry it out, in

finding the enhancement to apply. Our review of the

District Court’s legal interpretation of the Sentencing

Guidelines is plenary. See, e.g., United States v. Bamfield,

328 F.3d 115, 118 (3d Cir. 2003). We will affirm the District

Court’s application of the enhancement.

The extortion guideline at issue provides for a base

offense level of 18, with the following specific offense

characteristic: “If the offense involved an express or implied

threat of death, bodily injury, or kidnapping, increase by 2

levels.” U.S.S.G. § 2B3.2(b)(1). That subsection is followed

by a listing of four other specific offense characteristics that

increase the base offense level, including “the amount

demanded or the loss to the victim;” the use, brandishing,

possession, or discharge of a firearm or other dangerous

weapon; bodily injury sustained by the victim; and

abduction or physical restraint of any person. U.S.S.G.

§§ 2B3.2(b)(2)-(b)(5). Also included is the enhancement for

4. The District Court had jurisdiction under 18 U.S.C. § 3231, and we

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

7

the preparation to carry out threats, see U.S.S.G.

§ 2B3.2(b)(3)(B)(ii), which is also at issue here and is

discussed further below.

Mussayek argues that the purpose of the guideline is to

punish more severely those who place their victims in fear

of, for instance, death or serious bodily injury, and,

accordingly, urges that an enhancement for the content of

a threat makes little sense if the threat was not

communicated. In short, he maintains that if the

enhancement is meant to redress, and punish for,

particular harms to victims caused by threatening

statements, then the enhancement should not apply where,

as here, the victims did not know about, and thus could

not have been harmed by, the statements in question.

Contrary to Mussayek’s contentions, however, the

guideline appears to be but one example of the Sentencing

Commission’s manifest desire to address dangers presented

by the defendant wholly apart from the actual damage or

harm caused. The guidelines contain numerous situations

in which the Sentencing Commission looks to, and

escalates punishment for, the danger presented, as

distinguished from the harm actually caused by an offense.

For instance, whether a defendant possessed a firearm or

other dangerous weapon during the commission of a crime

— as opposed to brandishing or using it in some way — or

whether a defendant conducted more than minimal

planning, are facts that go to the danger presented by the

defendant without, at least typically, affecting whatsoever

the harm actually caused by the crime. Yet sentences are

routinely enhanced under the guidelines for just those sorts

of circumstances. See, e.g., U.S.S.G. § 2B2.1 (providing, in

the burglary guideline, for one two-level enhancement for

“more than minimal planning” and another if “a dangerous

weapon (including a firearm) was possessed”).

Similar concerns seem to underlie § 2B3.2, the guideline

at issue here. The provision’s Application Notes refer to very

generalized types of threats, such as threats “to cause labor

problems,” U.S.S.G. § 2B3.2, cmt. 2, or to cause death or

serious bodily injury to many, as with a plan “to derail a

passenger train or poison consumer products.” Id. at cmt.

7. Such threats are seen as warranting an enhancement

8

not because additional harm is actually imposed on the

intended victims, who will likely be unaware of the threat

posed to them, but because the defendant’s conduct

presented a level of danger beyond that for which the base

level of the offense was designed.

Mussayek relies heavily on dicta in United States v.

Rainone, 32 F.3d 1203 (7th Cir. 1994), as supporting his

view that a “threat” has been made only when it has been

communicated. In Rainone, the Court of Appeals for the

Seventh Circuit considered the applicability of the provision

at issue here where the defendant made threats to extortion

victims that included threats against the victims’ family

members. Id. at 1208. The defendant apparently argued

that an enhancement was not justified because the threats

against the family members had not been directly

communicated to them. Id. The court held that it made “no

difference that the threats against the members of the

families of the extortion victims were not communicated

directly to those family members” because the “extortion

victims themselves . . . were also threatened with physical

injury.” Id. The mention of the victims’ families “merely

magnified the threats.” Id.

In reaching its conclusion that the issue of

communication was irrelevant under the facts before it,

however, the court commented:

The guidelines do imply that a threat of which the

threatened person remains ignorant is not a basis for

an upward adjustment or departure, see U.S.S.G.

§ 2B3.1, Application Note 6; § 2B3.2, Application Note

2; United States v. Wint, 974 F.2d 961 (8th Cir. 1992),

and there is no indication that the victims of the

defendants’ extortions told their families about the

threats.

Id. Notwithstanding the Seventh Circuit’s dicta, the

authorities cited in Rainone in fact provide little support for

Mussayek’s position here.

First, United States v. Wint is completely inapposite.

There the Court of Appeals for the Eighth Circuit held only

that the circumstances of the threats involved there —

ongoing, sincere death threats made against an individual

9

and his family — were “sufficiently unusual” to warrant an

upward departure. Wint, 974 F.2d at 971. The court was

not presented with any question as to whether threats

needed to be communicated under § 2B3.2, nor did it even

implicitly address the issue anywhere in the opinion.

Similarly, Application Note 6 of § 2B3.1 is clearly

distinguishable. First of all, it pertains to a sentencing

enhancement for a different offense characteristic — a

“threat of death” — in connection with a different crime,

robbery. U.S.S.G. § 2B3.1(b)(2)(F). In addition, the content

of the Application Notes under the robbery guideline is very

different from the content of the Application Notes under

the extortion guideline at issue here. The enhancement for

a threat of death during a robbery, for instance,

contemplates a situation in which an offender uses phrases

like “Give me the money or I will kill you,” or “Give me the

money or else (where the defendant draws his hand across

his throat in a slashing motion),” and courts are explicitly

instructed to consider, in deciding whether to apply the

enhancement, whether the defendant’s conduct would

instill a fear of death in a reasonable victim. U.S.S.G.

§ 2B3.1, cmt. 6. In contrast, the Application Notes actually

applicable here reference very generalized threats and

“plan[s],” and at no point make any reference to the effect

on the potential victim. U.S.S.G. § 2B3.2, cmts. 2, 7. Thus,

to the extent that the guidelines might indeed be read to

“imply” that a threat of death made in connection with a

robbery needs to be communicated, little could be plausibly

inferred from that conclusion about the proper application

of enhancements under the guideline at issue here.

Application Note 2 of § 2B3.2, on the other hand, at least

concerns the correct guideline and enhancement, but the

focus of the Note is on the content of particular extortionate

threats. The Note advises that the sentencing enhancement

applies as long as the threat “reasonably could be

interpreted as one to injure a person or physically damage

property,” and includes “any comparably serious threat.”

U.S.S.G. § 2B3.2, cmt. 2. Nothing in the Note suggests that

the threat need be communicated in order to count for

enhancement purposes.

10

In fact, to the extent the Application Notes to § 2B3.2 can

be read to address the issue of communication at all, they

appear to signal precisely the opposite conclusion. As

indicated above, several refer to very generalized threats —

causing labor problems, derailing a train, or poisoning

consumer products. In factual circumstances involving

such threats, the court clearly could not assess the impact

of the threats on the intended but unidentifiable victims.

The inclusion of such situations, then, within the scope of

the guideline, strongly suggests that whether particular

intended victims — here, Fogel and Ben Jacob — were

aware of the threat is immaterial to the determination of

whether a particular threat may be the basis for enhancing

a sentence under the guideline.

Indeed, both the guideline and the Application Notes

indicate that the key to the application of this enhancement

is not, as Mussayek contends, the causation of additional

harm to victims, but is, rather, the seriousness of the

defendant’s conduct, judged by objective standards. The

Application Notes advise that the guideline applies

whenever “there was any threat, express or implied, that

reasonably could be interpreted as one to injure a person or

physically damage property, or any comparably serious

threat,” U.S.S.G. § 2B3.2, cmt. 2 (emphasis added), and the

enhancement is applied for all such offenses that “involved

an express or implied threat of death, bodily injury, or

kidnapping,” U.S.S.G. § 2B3.2 (emphasis added). Far from

focusing on the causation of actual harm or psychological

trauma to the victim, then, the guideline is specifically

concerned only with the precise nature of the defendant’s

conduct. Absent any reference to the intended victim or

victims, the guideline differentiates extortionate conduct

that involved potential damage to property from similar

conduct that involved potential physical violence, and goes

on to suggest that an “upward departure may be

warranted” when the conduct “involved the threat of death

or serious bodily injury to numerous victims.” U.S.S.G.

§ 2B3.2, cmt. 7. Despite Mussayek’s contentions to the

contrary, such distinctions are wholly logical, evidencing

the Sentencing Commission’s justified determination that

some of those threatening extortion must be punished more

11

severely than others. As the Court of Appeals for the First

Circuit has stated:

[W]e do not think it seems at all unusual that the

Sentencing Commission . . . would choose to

distinguish among various types of extortion for

sentencing purposes and, accordingly, seek to punish

extortionists who employ “express or implied threat[s]

of death, bodily injury, or kidnapping,” see U.S.S.G.

§ 2B3.2(b)(1), with greater severity than other, less

callous, practitioners of the same crime.

United States v. Jones, 997 F.2d 967, 969 (1st Cir. 1993).

In other words, “the enhancement provision [was designed]

specifically to target those who made a bad situation worse

by using ‘an express or implied threat of death, bodily

injury, or kidnapping’ as a tool of the extortion trade.” Id.

(quoting U.S.S.G. § 2B3.2(b)(1)).

We can find no reason to limit the meaning of the term

“threat” as used in § 2B3.2(b)(1) to contemplate only

statements communicated to their intended victims. Here,

Mussayek’s offense clearly “involved an express or implied

threat of death, bodily injury, or kidnapping,” U.S.S.G.

§ 2B3.2(b)(1), and, accordingly, the District Court did not

err in applying the threat enhancement.5

II. Enhancement for Preparation to Carry out a

Threat of Serious Bodily Injury under U.S.S.G.

§ 2B3.2(b)(3)(B)

Mussayek next challenges the District Court’s application

of the enhancement under § 2B3.2(b)(3)(B), based on its

conclusion that Mussayek’s conspiracy to commit extortion

involved the “preparation to carry out a threat of . . .

serious bodily injury,” or “otherwise demonstrated the

ability to carry out such threat.” We review the District

Court’s factual findings for clear error, and accord “due

5. The government notes that the jury convicted Mussayek of conspiring

to commit extortion, an offense that was charged in the indictment as

involving the “wrongful use of actual and threatened force, violence and

fear.” A use of force could only have been “threatened” if there was a

“threat.” Thus, it seems that the jury here understood that a “threat”

made to someone other than the intended victim is still a threat.

12

deference” to its application of the guidelines to the facts.

See United States v. Chau, 293 F.3d 96, 99 (3d Cir. 2002).

We agree with the District Court that the enhancement was

proper under the circumstances presented here.

The District Court could easily have found that Mussayek

did more than merely make a verbal threat, but instead

made preparations to carry it out. The court alluded only to

the sending of Aharanoff to Israel, but the record contains

much more. Mussayek solicited the assistance of the agents

and discussed physical violence, including kidnapping

Fogel’s daughter and breaking the legs of both Fogel and

Ben Jacob. Mussayek and the agents met to discuss the

plan, and the agents were given physical descriptions and

background information. Mussayek paid the agents $5,000

as a down payment, arranged for Agent Calvarese to travel

to Israel, and instructed Aharanoff to help Calvarese locate

Fogel. In sum, there is overwhelming evidence that

Mussayek prepared to “carry out” his threats of serious

bodily injury, or that he had otherwise demonstrated the

ability to carry them out. See U.S.S.G. § 2B3.2(b)(3)(B).

Mussayek argues that policy reasons argue against

application of the enhancement because the “preparation”

here would never have resulted in any actual extortion,

since it was all part of a “sting” operation against him.

Again the limitation that Mussayek seeks to impress on the

applicability of the guideline is unwarranted. Contrary to

Mussayek’s view, we see the enhancement for the

“preparation” or “ability to carry out” a threat as standing

alone, punishing those who do more than merely threaten

with death, serious bodily injury, kidnaping or product

tampering. Under the plain language of the guideline, it

matters not whether a particular extortion conspiracy is

ultimately unsuccessful because it was thwarted, botched,

or simply abandoned after a remorseful offender’s change of

heart; the guideline asks only whether “the offense involved

preparation to carry out” the threat, or whether “the

participant(s) otherwise demonstrated the ability” to carry it

out. As noted above, there was certainly sufficient evidence

in the record to satisfy that standard, and, accordingly, we

13

can find no error in the District Court’s application of the

enhancement.6

III. Downward Departure for Victim Provocation

under U.S.S.G. § 5K2.10

Finally, we turn to the District Court’s refusal to depart

downward for victim provocation under § 5K2.10. If a

district court’s ruling is based on the belief that a departure

was legally impermissible, and, thus, involves an issue of

law, we have jurisdiction to review. See, e.g., United States

v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998).

Here, it is clear that the District Court concluded that the

departure did not fit this situation and was thus

impermissible.7

6. As the District Court pointed out, the offense conduct here was

conspiracy to commit extortion, not extortion itself, so the completion of

the threat in the form of actual extortion was not at issue.

7. The District Court stated:

[A]t the end of the day when you read the language of this

departure, when you read the language of this victim conduct

provision, they are talking about something that is more directly

provocative, contributed to the danger presented. That’s the

language. And I think that language connotes an immediate, if not

perhaps even physical provocation and not what we have in this

case.

. . . .

[W]hen you read this provision 5K2.10, you get a sense of a more

direct physical danger, relevant physical characteristics, size and

strength of the victim, persistence of the victim’s conduct and efforts

by the defendant to prevent confrontation, danger reasonably

perceived by the defendant, by the victim’s reputation for violence,

danger presented to the defendant by the victim.

That was not this case. In this case the redress that would be

appropriate would be a lawsuit, a resort to a report to the police.

That’s the kind of conduct that would be expected for a person in

the defendant’s position to take against these two people, Ben Jacob

and Fogel.

. . . .

I think you would have a better argument on the range, the

application where within the range this defendant should be

sentenced, but I don’t think you have sufficient to draw the

application of this, what I read as the departure conceived of by this

provision.

14

Section 5K2.10 provides that departures may be made

where “the victim’s wrongful conduct contributed

significantly to provoking the offense behavior.” U.S.S.G.

§ 5K2.10. It then instructs:

In deciding the extent of a sentence reduction, the

court should consider: a) the size and strength of the

victim, or other relevant physical characteristics, in

comparison with those of the defendant; b) the

persistence of the victim’s conduct and any efforts by

the defendant to prevent confrontation; c) the danger

reasonably perceived by the defendant, including the

victim’s reputation for violence; d) the danger actually

presented to the defendant by the victim; and e) any

other relevant conduct by the victim that substantially

contributed to the danger presented.

Id. In addition, the guideline indicates that victim

provocation departures are most often applicable when the

defendant’s offense behavior was of a violent nature, but

also provides that there may be “unusual circumstances” in

which “substantial victim misconduct,” such as “an

extended course of provocation and harassment,” could

justify a departure even in the case of a non-violent offense

such as theft or the destruction of property. Id.

We have previously noted that departures are most

clearly “contemplate[d] . . . where the victim’s conduct

posed actual, or reasonably perceived, danger to the

defendant, with an emphasis on physical danger,” and that

“[g]enerally only violent conduct . . . justifies a downward

departure.” United States v. Paster, 173 F.3d 206, 211 (3d

Cir. 1999). Yet neither our court, nor the guidelines

themselves, restrict departures to situations involving

violence or physical danger. See, e.g., United States v.

Harris, 293 F.3d 863, 872-73 (5th Cir. 2002). The key to

the viability of a claim for a downward departure for victim

provocation appears to depend on the unique facts of each

case regarding whether the requisite provocation existed.

As cases applying § 5K2.10 focus on whether, under

particular circumstances, the victim’s misconduct

contributed significantly to provoking the defendant’s

specific offense behavior, the starting point must be the

15

careful consideration of “all of the circumstances” of the

encounter in question. Paster, 173 F.3d at 211.

Exemplifying this principle is the Supreme Court’s decision

in Koon v. United States, 518 U.S. 81 (1996). Koon arose

out of the Rodney King excessive force incident that

occurred in Los Angeles in 1991. Notably, the District Court

had made a factual finding that at the time the defendants

actually crossed the line from lawful conduct to unlawful,

excessive force — the offense behavior in question — King

no longer “posed [an] objective threat, and the defendants

had no reasonable perception of danger.” Id. at 102. Yet the

Supreme Court affirmed the downward departure for victim

provocation. The Court stated that it “would be a startling

interpretation and contrary to ordinary understandings of

provocation” to find that King’s extended course of

misconduct — which included “driving while intoxicated,

fleeing from the police, refusing to obey the officers’

commands, attempting to escape from police custody, etc.”

— provoked the officers “lawful force but not the unlawful

force that followed without interruption.” Id. at 102, 104. “A

response,” the Court noted, “need not immediately follow an

action in order to be provoked by it.” Id. at 104. Although

King was eventually subdued, the overall atmosphere

remained volatile, and the officers’ offense behavior

“followed within seconds” of King’s misconduct, during the

course of a “dynamic arrest situation.” Id. at 102, 104.

Taking into account all of these circumstances, the Court

held that the District Court did not err in holding that

King’s wrongful conduct contributed significantly to

provoking the officers’ excessive force, and granting a

downward departure accordingly. Id. at 104-05.

The precise contours of the departure, however, are

difficult to define. It does appear that the mere fact that the

victim’s misconduct was a cause of the defendant’s offense

behavior, in the sense that the offense behavior may not

have been committed but for the victim’s conduct, is not

enough; downward departures are authorized under the

guideline only where the victim’s misconduct “contributed

significantly to provoking” the defendant’s offense behavior.

Cf. United States v. Corrado, 304 F.3d 593, 615 (6th Cir.

2002) (noting distinction between a “but-for cause” and

provocation). We perceive the distinguishing factors to lie in

16

the specific nature of both the victim’s misconduct and the

defendant’s offense behavior, and the precise nature of the

relationship between the two. To that end, it is useful to

focus on the straightforward meaning of the term

“provocation” itself, as provocation necessarily involves a

distinct element of incitement, arousal, or the like. See

Black’s Law Dictionary 1225 (6th ed. 1990) (“The act of

inciting another to do a particular deed. That which

arouses, moves, calls forth, causes, or occasions. Such

conduct or actions . . . as tend to arouse rage, resentment,

or fury . . . .”); cf. United States v. LeRose, 219 F.3d 335,

340 (4th Cir. 2000) (indicating a lack of provocation where

the victim “in no way goaded” the defendant’s specific

offense behavior).

In addition, courts have often relied heavily on the

concept of proportionality, that is, that the necessary

provocation only exists if the provoked offense is

proportional to the provoking conduct. This reasoning

makes sense, as it would be exceedingly difficult to apply

§ 5K2.10 to a situation in which the offense behavior was

excessively disproportional to the victim’s misconduct.

The need for proportionality in the response is “evidenced

by the factors that § 5K2.10 instructs the courts to

consider,” including the efforts made by the defendant to

avoid confrontation, and the danger actually presented or

reasonably perceived to be presented by the victim. United

States v. Morin, 80 F.3d 124, 128 (4th Cir. 1996). Further,

§ 5K2.10 explicitly connects the victim’s misconduct not

just to the defendant’s response in a broad sense, but to

the defendant’s specific offense behavior. As the Fifth

Circuit has noted, “ ‘the offense behavior’ is an important

phrase” as “it signifies that there is a relationship between

the type of offense behavior and the type of victim

misconduct that would ‘contribute[ ] significantly to

provoking’ it.” Harris, 293 F.3d at 872-73. In short, certain

less serious victim misconduct may be sufficient to provoke

some types of lesser offense behaviors, but insufficient to

provoke more severe conduct on the part of the defendant.

See, e.g., id. at 872-74.

In Paster, for instance, we considered the disturbing case

of a defendant who viciously stabbed his wife to death soon

17

after she divulged a number of extramarital affairs. In the

District Court the defendant sought, unsuccessfully, a

downward departure under § 5K2.10. Paster, 173 F.3d at

210-11. Taking into account “all of the circumstances” —

such as the defendant’s initiation of the fatal confrontation,

the fact that his wife posed no reasonable threat as he

attacked her when she was emerging from the shower, and

that the defendant already knew that his wife was

unfaithful — we found “ample record evidence to support”

the District Court’s denial of a downward departure. Id. at

211-12 & 212 n.3. Even if the wife’s infidelities constituted

misconduct, and even if that misconduct could have

prompted some response by the defendant, the defendant’s

offense behavior — the brutal murder of his unarmed wife

— “was grossly disproportionate to any provocation.” Id. at

212.

Several of our sister Courts of Appeals have also explicitly

expressed a concern for proportionality. The Court of

Appeals for the Fifth Circuit, for example, has recently held,

in a thoughtful and persuasive discussion of the issue, that

“[t]aken as a whole, Section 5K2.10 evinces a concern that

the offense behavior be not excessively disproportionate to

the provocation.” Harris, 293 F.3d at 873. Similarly, in

United States v. Blankenship, 159 F.3d 336 (8th Cir. 1998),

the Court of Appeals for the Eighth Circuit stated that

§ 5K2.10 “manifests a concern for proportionality in the

defendant’s response,” and held there that the defendant’s

claim for a departure was meritless since his “response was

disproportionate to the threat posed by the victim’s

conduct.” Id. at 339; id. (“[The defendant’s] response . . .

simply was not proportionate to the threat.”); United States

v. Shortt, 919 F.2d 1325, 1328 (8th Cir. 1990) (stating that

“[a] concern for the proportionality of the defendant’s

response is manifested by the terms of § 5K2.10” and

reversing the District Court’s downward departure). The

Court of Appeals for the Fourth Circuit also agrees. See

Morin, 80 F.3d 124 at 128.

Turning to the facts at hand, Mussayek characterizes the

District Court’s interpretation of § 5K2.10 as overly narrow

and as holding as a matter of law that to qualify the victim

provocation must be “immediate” and “physical.” But

18

Mussayek does a disservice to the District Court’s

thoughtful analysis. The District Court did in fact concern

itself with the specific nature and relationship of the victim

misconduct and offense behavior at issue here, as the

guideline requires, and found that Mussayek’s conspiracy

to commit extortion was not provoked by the two acts of

swindling in the way contemplated by the departure

provision. The Court concluded that there was a lack of

immediacy and that Mussayek’s response was not

proportional, noting, for example, that “[i]n this case the

redress that would be appropriate would be a lawsuit, a

resort to a report to the police. That’s the kind of conduct

that would be expected for a person in the defendant’s

position to take against these two people, Ben Jacob and

Fogel.”

We agree with the District Court that the circumstances

here simply do not evidence provocation as required by

§ 5K2.10. Mussayek was the apparent victim of Fogel’s

fraud, and Ben Jacob’s unethical — at the very least —

behavior with regard to their partnership. But there is no

evidence that Fogel or Ben Jacob somehow provoked

Mussayek into attempting to extort money from them. Any

wrong done to him was economic in nature,8 and took place

without the immediacy, or the highly-charged context of

8. We note two other cases in which the supposed provocation was

essentially economic in nature. In United States v. Bigelow, 914 F.2d 966

(7th Cir. 1990), the Court of Appeals for the Seventh Circuit reversed the

District Court’s grant of a departure for victim provocation where the

defendants were convicted on extortion and related charges for a number

of threats made to the victim arising out of the victim’s failure to satisfy

a debt. Id. at 969, 975. The court held that the victim simply had not

provoked the defendants’ extortion of him as contemplated by § 5K2.10.

Id. at 975. By contrast, in United States v. Dailey, 24 F.3d 1323 (11th

Cir. 1994), the Court of Appeals for the Eleventh Circuit upheld the

District Court’s grant of a departure where the defendant was convicted

of making a single threatening phone call after an individual defrauded

him of tens of thousands of dollars. Id. at 1324, 1328. The court there

was unwilling, under a clear error standard, to reverse the District

Court’s finding that the defendant’s conduct had been provoked. Id. at

1327-28. These contrary results only amplify the conclusion that each

§ 5K2.10 case must be decided on its particular facts. See, e.g., Dailey,

24 F.3d at 1327-28 (distinguishing Bigelow on its facts).

19

tension, emotional build-up, or arousal, that typically

exemplifies the provocative situation. See Black’s Law

Dictionary, 1225 (6th ed. 1990) (defining provocation);

Paster, 173 F.3d at 211-212 (affirming that no departure is

available where the defendant brutally murdered his

unarmed wife after she divulged her infidelity); U.S.S.G.

§ 5K2.10 (stating that an “extended course of provocation

and harassment” could justify a departure for nonviolent

offense conduct); see also Koon, 518 U.S. at 102-105

(upholding departure for excessive force during arrest

situation); Harris, 293 F.3d at 872-76 (same); United States

v. Tsosie, 14 F.3d 1438 (10th Cir. 1994) (upholding

departure where the defendant fatally stabbed the victim

during a physical altercation moments after learning that

the victim was having an affair with his wife); United States

v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989) (upholding

departure where the defendant stabbed the victim

immediately after the victim verbally abused and publicly

humiliated her); United States v. DeJesus, 75 F. Supp. 2d

141, 144-46 (S.D.N.Y. 1999) (granting departure where the

defendant set out to attack the victim just after the victim

seriously assaulted the defendant’s pregnant girlfriend and

threatened her life).

Additionally, Mussayek’s response took place long after

the alleged scams; he did not react within days, or even

weeks, but many months — and in the case of Fogel, nearly

a year — later. Indeed, the response involved extensive

scheming and planning: the discussions with the agents

took place over several months, information was gathered

about the intended victims, and Aharanoff and Mussayek

flew to Israel to conduct what was in essence

reconnaissance activity. In short, Mussayek’s offense

behavior was not, as one court has well put it, “directly

responsive to the immediate provocation,” but was, rather,

the epitome of “a calculated planned response.” DeJesus,

75 F. Supp. 2d at 146; see also, e.g., Blankenship, 159

F.3d at 339 (rejecting claim for departure where the victim

started the confrontation but defendant left and later

returned with a loaded gun); Morin, 80 F.3d at 128

(reversing departure where the defendant made plans to

hire someone to murder his lover’s husband after learning

he was abusing her); Shortt, 919 F.2d at 1328 (reversing

20

departure for a defendant who built a pipe bomb and put

it in his wife’s lover’s truck); Bigelow, 914 F.2d at 975

(reversing departure for defendants who made extensive

extortionate threats to victim who owed them money).

Further, Mussayek’s offense behavior was “grossly

disproportionate to any provocation” on the part of his

victims. Paster, 173 F.3d at 212. It is to be expected that

one who suffered the frauds apparently suffered by

Mussayek would undertake efforts to recover the money.

But we certainly cannot conclude that the District Court

erred in finding that Mussayek’s conduct — attempting to

hire others to threaten, intimidate, kidnap, assault, shoot,

and even murder to achieve his ends — was not a

proportional response. In response to past economic

wrongs, Mussayek committed himself to an extensive plan

of extortion, authorizing the use of grave and even deadly

force to recover his losses. Essentially, Mussayek now seeks

to transform a mere but-for cause of his conduct into

significant provocation. The District Court did not err in

holding that this is not the type of situation envisioned by

§ 5K2.10.

CONCLUSION

The District Court correctly concluded that Mussayek

was eligible for sentence enhancements for the content of

his threats, and for his preparations to carry out those

threats. In addition, it did not err in holding that Mussayek

was ineligible for a downward departure for victim

provocation. In light of the foregoing, we will AFFIRM.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit