United States v. Rami Ghanem
993 F.3d 1113
9th Cir.2021Background
- Rami Ghanem, a naturalized U.S. citizen and international arms broker, was arrested in Athens in an HSI undercover sting related to illicit weapons exports, including alleged dealings in Igla and Strela surface-to-air missiles.
- Greek authorities seized devices; the U.S. later obtained forensic evidence and extradited Ghanem to the United States, flying him in custody via JFK (Eastern District of New York) to Santa Ana (Central District of California).
- The Central District of California obtained a superseding indictment adding a § 2332g count (guided surface-to-air missile offense with a 25‑year mandatory minimum); Ghanem pleaded guilty to other counts but tried the § 2332g count to a jury and was convicted.
- Ghanem did not move pretrial to dismiss for improper venue (Rule 12), so the district court deemed the claim waived; nonetheless the court instructed the jury that foreign arrests, restraint, or detention were irrelevant to venue in California over Ghanem’s objection.
- On appeal, the Ninth Circuit held the venue defect in Count 3 was apparent from the indictment, that the jury instruction was legally incorrect because a jury could find Ghanem’s Athens arrest was "in connection with" the § 2332g offense under 18 U.S.C. § 3238, and that the erroneous instruction was harmful; the conviction and sentence on Count 3 were vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/waiver of venue objection under Fed. R. Crim. P. 12 | Govt: Ghanem waived venue by not moving pretrial; no good cause | Ghanem: venue defect not apparent until trial evidence; timely in Rule 29 motion | Venue defect in indictment was apparent; failure to raise pretrial waived dispositive motion, but jury‑instruction challenge preserved |
| Proper jury instruction on foreign arrests/venue | Govt: foreign arrests are irrelevant; court may so instruct to avoid jury confusion | Ghanem: Athens arrest was connected to § 2332g and therefore relevant to venue | Instruction that foreign arrests are irrelevant misstated law where a jury could find the foreign arrest was "in connection with" the charged offense |
| Where venue lies under 18 U.S.C. § 3238 ("arrested" vs "first brought") | Govt: venue proper in Central District because charge "came into being" while Ghanem was detained there | Ghanem: he was arrested in Greece in connection with the § 2332g conduct and first brought to EDNY; venue lies in EDNY | Court rejects govt’s bright‑line test; examines whether initial restraint was "in connection with" the later charge and finds a reasonable jury could so find |
| Standard for connection between arrest and later charge | Govt: location when charge filed controls | Ghanem: connection depends on centrality of offense to arrest, timing, and gov't conduct | Court adopts multi‑factor approach (centrality, lapse, gov't conduct) and rejects govt’s test as inconsistent with precedent and constitutional constraints |
| Harmlessness of erroneous instruction | Govt: error harmless beyond a reasonable doubt | Ghanem: instruction likely affected verdict because venue was contested | Error was harmful; constitutional right to proper venue requires the government to prove harmlessness beyond a reasonable doubt; conviction vacated on Count 3 |
Key Cases Cited
- United States v. Liang, 224 F.3d 1057 (9th Cir. 2000) (initial restraint abroad can determine venue under § 3238)
- United States v. Provoo, 215 F.2d 531 (2d Cir. 1954) (detention nominally for one offense treated as arrest for another when DOJ directed detention)
- United States v. Catino, 735 F.2d 718 (2d Cir. 1984) (substantively different later charge may create venue where detained when charge brought)
- United States v. Holmes, 670 F.3d 586 (4th Cir. 2012) (offense‑specific approach: venue determined by where defendant was first arrested for the specific offense)
- United States v. Wharton, 320 F.3d 526 (5th Cir. 2003) (upholding venue where defendant was detained when later indictment adding related offense was filed)
- United States v. Hong Vo, 978 F. Supp. 2d 49 (D.D.C. 2013) (arrest in one district connected to later substantive counts in another when conspiracy and later counts arise from same scheme)
- United States v. Casch, 448 F.3d 1115 (9th Cir. 2006) (waiver of pretrial venue objection does not necessarily foreclose jury‑instruction challenge)
- United States v. Moran‑Garcia, 966 F.3d 966 (9th Cir. 2020) (government bears preponderance standard to establish venue under § 3238)