The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Defendants John Ramin and Tahir Ramin ("Defendants") are two of multiple defendants indicted for acts of bribery and corruption at Bagram Air Force Base, Afghanistan, in violation of 18 U.S.C. § 371, 201(b)(1), 201(b)(2), and 1349. Before this Court is Defendants' Joint Objections to the Magistrate's Decision Barring Economic Coercion Evidence . Defendants have adopted the general position that, because they were victims of extortion at the hands of U.S. servicemen, they did not "corruptly give, offer or promise anything of value to any public official . . . to influence any official act," as required by 18 U.S.C. §§ 201(b) (emphasis added).*fn1 On December 18, 2009, the Government filed a motion in limine to exclude improper examination, evidence, and argument regarding economic duress . On April 5, 2010, Judge Ashman granted the motion. He held that "economic coercion cannot be an affirmative defense to bribery or mail fraud, nor can it negate the intent of the party charged with either crime." See Apr. 5, 2010 Mem. Op. and Order  at 11.*fn2 For the reasons stated below, the Court GRANTS IN PART Defendants' objections and narrows the scope of Judge Ashman's ruling. However, the Court DENIES IN PART Defendants' motion insofar as it seeks authorization to present their proposed evidence of extortion as a defense to bribery and mail fraud.
I. Distinguishing Bribery, Extortion, and General Economic Coercion
As an initial matter, it must be clarified that bribery and extortion are not mutually exclusive; Defendants can be guilty of paying bribes even if U.S. servicemen extorted them. See United States v. Lisinski, 728 F.2d 887, 892 (7th Cir. 1984) (citing United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975). While stopping short of conclusively analyzing the issue, other circuits have also criticized the argument that extortion negates the intent required for bribery. See, e.g., United States v. Lee, 846 F.2d 531, 534 n. 1 (9th Cir. 1988) (where defendants argued that "the specific intent necessary to prove the crime of bribery under 18 U.S.C. § 201 was negated by their fears that they would lose their contract with the government if they did not pay off government inspectors . . . a plain reading of [the statute] casts doubt on [defendants'] economic coercion theory"); United States v. Colacurcio, 659 F.2d 684, 690 (5th Cir. 1981) ("[A]ppellants' insistence that extortion can be a defense to bribery is incorrect. . . . even if the appellants were subjected to extortion, they can still be convicted on the bribery charge."); see also United States v. Labovitz, 251 F.2d 393, 394 (3d Cir. 1958) ("[T]o constitute the offense of attempted bribery it is immaterial whether the official action sought to be influenced be right or wrong. . . . The statute is violated when a bribe is given . . . regardless of the occasion therefor, provided it is done with the requisite intent and . . . the acceptor . . . is a person of the sort described in the statute.").
Indeed, the Seventh Circuit in United States v. Holzer noted that, although bribery contains an element that extortion does not -- namely a corrupt intent to influence an official act*fn3 -- "[i]t could be argued . . . that every person who knuckles under to an extortionate demand does so intending to influence the extortionist not to carry out his threat, and that this should be enough to prove bribery." 840 F.2d 1343, 1351 (7th Cir. 1988). Nevertheless, "there is some authority that one can be a victim of extortion but not a briber, and that would surely be right in a case where the victim had paid the extortionist at the point of a gun . . . ." Id. at 1351-52 (citing United States v. Shober, 489 F. Supp. 393, 403 (E.D. Pa. 1979); Hornstein v. Paramount Pictures, Inc., 37 N.Y.S.2d 404, 412-13 (N.Y. App. Div. 1942), aff'd, 55 N.E.2d 740 (1944)).
Uncontroversially, this language suggests that a physical duress defense remains available to defendants charged with bribery. The cases cited by the Holzer Court also indicate that it is possible for a victim to comply with extortionate demands without corruptly intending to influence an official act. See, e.g., Hornstein, 489 F. Supp. at 412-13 (where company paid a labor organization representative to prevent him from making good on his threat to call a strike by the company's employees, the act was not voluntary or intended to influence the performance of an official duty, because the labor representative was not under any real or pretended legal duty to cause a strike.)*fn4
It follows that Defendants should be permitted to present evidence showing that they did not act with the intent to corruptly influence an official act. In principle, evidence relevant to that purpose should not be categorically excluded simply because it touches on the topic of extortion or, more broadly, economic coercion. As explained below, however, Defendants do not benefit from this opening -- at least not on the grounds thus far asserted -- because their proposed evidence fails to disprove the corruptness of their intent.
III. Permissibility of Defendants' Economic Duress Defense
The Seventh Circuit has yet to explicitly outline the parameters of a valid economic duress defense in the context of bribery charges under 18 U.S.C. §§ 201(b) and 371, or mail fraud under 18 U.S.C. § 1349. However, it has at least implied in dicta that economic coercion may serve as an affirmative defense to mail fraud.
In United States v. George et al., the defendant in a mail fraud caseargued that he only made kickback payments because he was the victim of extortion. The Seventh Circuit observed that "[u]nder some circumstances a threat of economic injury may constitute a defense, but not here." See 477 F.2d 508, 514 (7th Cir. 1973).The court explained that the defendant could not claim economic duress when he had no right to the contracts that he secured through bribery, nor any right to be protected from future competition. Id. at 515-16. The payment of bribes to secure a discretionary act can be contrasted against compliance with an extortionist's demand under a threat to deprive the victim of something to which he has a legal right, like an existing contract. Accord United States v. Barash, 365 F.2d 395, 401-02 (2d Cir. 1966) ("[I]f a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this . . . as bearing on the specific intent required for the commission of bribery.")
The Seventh Circuit articulated a consistent rationale when interpreting the Illinois bribery law, which resembles the federal statute with regard to intent to influence. In United States v. McPartlin, the Seventh Circuit stated that "in a case where a discretionary or legislative decision . . . has been requested, the withholding of such action until a money demand is met could not negate the intent (to influence the performance of an official act) required by the Illinois bribery statute." 595 F.2d 1321, 1340 (1979) (quoting United States v. Peskin, 527 F.2d 71, 84 (7th Cir. 1975), cert. denied, 429 U.S. 818 (1976)).*fn5 Assuming for the sake of argument that a distinction existed between the defenses of duress and extortion, the Seventh Circuit additionally observed that the defendant could not have asserted an extortion defense due to his lack of legal entitlement to the benefits he sought to obtain through bribes. Id. at 1341-42.
In the instant case, Defendants are charged with paying bribes to secure discretionary acts on the part of co-defendants Christopher West and Patrick Boyd, both U.S. military officers serving at Bagram.*fn6 The above case law suggests that an extortion defense is unavailable to Defendants, if it is premised on the argument that the officers' conduct, in demanding bribes as the sole means of winning discretionary contracts, somehow excuses the Defendants' unlawful complicity. Defendants nevertheless seek to offer the following: (1) evidence that Charles Finch, a non-commissioned officer who purportedly worked with West, previously terminated a lawfully obtained, pre-existing line haul contract with AZ when the company refused to make extortion payments demanded by Finch; (2) statements by West that he "was not going to leave Afghanistan without making money" and that he extracted payments from military contractors so that they could "keep their contracts;" (3) evidence that West conceived and orchestrated the indicted conduct; (4) evidence of other, as yet unspecified attempts at extortion by West and various warlords; (5) evidence that West and his co-conspirators prevented AZ from shipping products to end military users for purchase orders, thereby preventing Defendants from collecting payment to recoup their costs, in order to compel Defendants to comply with extortionate demands. See Def. Resp. Br.  at 4-5.
Propositions #1, #4, and #5 are irrelevant. Defendants' state of mind when responding to extortionate conduct threatening the disruption of unrelated line haul contracts, purchase orders, or other commerce has no bearing on whether Defendants paid bribes to influence the official action described in this indictment, i.e. the assignment of future contracts for bunkers and barriers. Propositions #2-3 would at most establish that West and his crew were avaricious extortionists who conditioned the bunkers-and-barriers contracts on the receipt of hefty bribes. However, West and Boyd's extortionate conduct does not affect or diminish the probability that Defendants paid those bribes with the intent to influence official acts, as one can bribe and be extorted simultaneously. Furthermore, to the extent that a duress defense may ...