UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMI GHANEM, AKA Rami Najm Asad-Ghanem, Defendant-Appellant.
No. 19-50278
United States Court of Appeals for the Ninth Circuit
April 12, 2021
D.C. No. 2:15-cr-00704-SJO-1
Opinion by Judge Boggs
FOR PUBLICATION
Argued and Submitted February 12, 2021 Pasadena, California
Before: Danny J. Boggs,* Milan D. Smith, Jr., and Mary H. Murguia, Circuit Judges.
SUMMARY**
Criminal Law
The panel vacated a conviction for conspiracy to violate
In an undercover sting operation, the Department of Homeland Security captured the defendant, a naturalized United States citizen, in Greece, and the government obtained an indictment against him in the Central District of California. Neither party disputes that all of the defendant‘s alleged conduct took place outside the United States.
The defendant contends that because he was “arrested” in Greece and “first brought” to the Eastern District of New York, venue under
The panel held that under
The panel held that the defendant preserved his challenge to the propriety of the district court‘s jury instruction—that “[a]rrests, restraint or detention in a foreign country were irrelevant to [the jury‘s] determination of whether venue is appropriate in this district.” The panel wrote that according to this court‘s precedent, the defendant‘s Rule 12 waiver of venue did not preclude his separate jury-instruction challenge.
The panel reviewed de novo whether the instruction correctly stated the law, and explained that if a jury could reasonably find that the defendant‘s arrest in Greece was connected to the alleged
On plain error review, the panel disposed of the defendant‘s arguments (1) that
The panel held that the defendant waived his claim based on the doctrine of specialty by failing to raise it before trial without good cause.
The panel declined to order dismissal of the
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant.
Alexander P. Robbins (argued), Assistant United States Attorney; L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T. Hanna, United States Attorney; United States Attorney‘s Office, Los Angeles, California; for Plaintiff-Appellee.
BOGGS, Circuit Judge:
Rami Ghanem, a Jordanian-born, naturalized United States citizen, is an international arms dealer. The Department of Homeland Security captured him in Greece in an undercover sting operation, and the government obtained an indictment against him in the Central District of California in Los Angeles. After his extradition from Athens to Los Angeles (by way of New York), the government then brought additional arms-dealing charges against him, including
But the government tried Mr. Ghanem in the wrong place. When he landed at John F. Kennedy International Airport, in custody, venue was laid in the Eastern District of New York for the
I. Background
A. Arrest, Extradition, and Indictment
While living in Egypt, Mr. Ghanem ran a Jordanian company called Gateway to MENA (short for “Middle East and Northern Africa“), which dealt in military supplies and offered what he termed logistics services. His wares included body armor, a wide variety of weapons both small and large, ammunition, gadgets for electronic warfare, and so on. But his trade was not entirely on the up-and-up. He would smuggle armaments under false customs declarations, calling them “juice” or “fruits,” and bribe officials for (or outright forge) the end-user certificates necessary for legal shipment of weapons.
Eventually, Mr. Ghanem‘s dealings came to the attention of Homeland Security Investigations (HSI). In 2014, an HSI undercover agent contacted Mr. Ghanem and began gathering evidence against him through email, Skype chats, and in-person meetings. In the meantime, in May 2015, a HSI special agent based in Los Angeles got a warrant to search Mr. Ghanem‘s Gmail account. By August 2015, Mr. Ghanem had placed an order through the undercover agent to illicitly export dozens of weapons, thousands of rounds of ammo, and three night-vision devices from the United States to Libya. On December 8, 2015, the undercover agent brought Mr. Ghanem to a warehouse in Athens, Greece, ostensibly to inspect the shipment as it was en route to Libya. Having been alerted by the United States, Greek authorities arrested him at the warehouse. Greek authorities seized numerous electronic devices from Mr. Ghanem‘s person and hotel room. The United States government would later take possession of those devices and examine them forensically.
Later that December, Mr. Ghanem was indicted in the Central District of California, where the shipment of purported weapons from the undercover agent had originated. The indictment alleged one count of violating the Arms Export Control Act (specifically,
On March 24, 2017, the government obtained a superseding indictment in the Central District of California, which added three new counts against Mr. Ghanem. (It obtained from the Greek government an extension of his extradition order—that is, permission to try him for these additional offenses beyond those listed in the original order.) The first new count was for conspiracy to violate the Arms Export Control Act, in violation of
Section 2332g, broadly, prohibits illicit dealings in guided surface-to-air missiles. Subsection (a) lists the specific banned conduct, subsection (b) specifies five so-called “jurisdictional” conditions, at least one of which must be met for the conduct in subsection (a) to be criminal. And subsection (c) provides that “[a]ny person who violates, or attempts or conspires to violate, subsection (a) ... shall be sentenced to a term of imprisonment not less than 25 years or to imprisonment for life.”
Mr. Ghanem was charged with a conspiracy to violate subsection (a), and the jurisdictional hook alleged was his United States citizenship. In particular, he was charged with trying to procure or offering to sell Igla and Strela surface-to-air missiles and missile launchers. And from March to June of 2015, he allegedly sought operators for an Igla missile system, negotiated these operators’ salaries (including bonuses for actually shooting down planes), and procured their travel to Libya.
B. The Proceedings Below
After the superseding indictment, there was extensive pretrial discovery (including three overseas depositions presided over by the district judge himself in Israel and Georgia) as well as several motions. Mr. Ghanem moved for a bill of particulars as to the
After the pretrial-motions deadline, the government moved the district court to take judicial notice of Mr. Ghanem‘s location at the time of his arraignment on count 3 of the superseding indictment. The court granted that motion. Finally, shortly before trial, Mr. Ghanem pleaded guilty to the other six counts against him, leaving only the
After the close of the government‘s eight-day case-in-chief, Mr. Ghanem moved under
In the meantime, the parties had been conferring on jury instructions. The government objected to Mr. Ghanem‘s proposed venue instruction and proposed one of its own. A few versions later, defense counsel eventually expressed no objection to the government‘s proposed venue instruction, which read, in relevant part: “The government must also show by a preponderance of the evidence that defendant was arrested, or first restrained of his liberty, in connection with this offense in the Central District of California.” But after argument on the Rule 29 motion, the government expressed concern that Mr. Ghanem would argue his venue theory to the jury. The district court suggested that the government propose a jury instruction, which it did: “Arrests, restraint or detention in a foreign country is irrelevant to your determination of whether venue is appropriate in this district.”
After the defense‘s brief case, the district court heard argument on the government‘s proposed addition to the venue instruction. The government argued that Mr. Ghanem would mislead the jury by arguing that his arrest in Greece was in connection with the offense currently on trial. Mr. Ghanem objected to the instruction, contending that the government was well aware of any of his dealings in surface-to-air missiles by the time he was arrested. The district court found that the defense‘s argument would mislead the jury and agreed to give the government‘s revised instruction.
So instructed, the jury returned a unanimous guilty verdict after several hours of deliberations. Mr. Ghanem moved for a new trial under
Convicted of all seven counts, Mr. Ghanem‘s provisional offense level under the Sentencing Guidelines was 43. During the sentencing hearing, the district court sustained an objection by Mr. Ghanem, which brought the total offense level to 40. With a criminal history category of I, his Guidelines range was 292 to 365 months of imprisonment. The district court sentenced Mr. Ghanem, within that range, to 360 months.
This timely appeal followed.
II. Venue and Waiver
A. Background Principles
A criminal defendant enjoys the constitutional right to a trial in the correct place.
Neither party disputes that all Mr. Ghanem‘s alleged conduct took place outside the United States, so that
But the government contends that Mr. Ghanem waived his venue objection. This is because “a motion alleging a defect in instituting the prosecution, including... improper venue,” must be made before trial if its basis is “then reasonably available” and it “can be determined without a trial on the merits.”
B. Apparency of a Venue Defect
There is good cause for a failure to raise a venue challenge before trial if no venue defect was “apparent on the face of the indictment.” United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000). In such a case, the earliest a defendant can raise the issue is in a Rule 29 motion for a judgment of acquittal at the close of the government‘s case-in-chief. A venue objection made then is therefore timely. Ibid.
An indictment does not have an apparent venue defect if “it allege[s] facts which, if proven, would have sustained venue” in the district of trial. Ibid. In this analysis, we consider only the allegations in the indictment, and we take them as true. United States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997). Moreover, we must consider venue for each count separately, even if the same conduct is charged in multiple counts. See United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994) (“The court must conduct a separate venue analysis for the substantive crimes and the conspiracy, even if the substantive crimes are committed in furtherance of the conspiracy.“).
Here, a venue defect is apparent from the face of the indictment. The only mention of the Central District of California in count 3 of the first superseding indictment is a statement that Mr. Ghanem “is currently located in the Central District of California.” No overt act in count 3 is alleged to have occurred in any particular place, and no other facts are alleged in that count that would support venue under any of the venue statutes. See
III. The Jury Instruction on Venue
Mr. Ghanem also challenges the propriety of the district court‘s venue instruction—that “[a]rrests, restraint or detention in a foreign country is irrelevant to [the jury‘s] determination of whether venue is appropriate in this district.”
A. Preservation Below
To preserve a jury-instruction objection, a party “must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.”
Additionally, according to our precedent, Mr. Ghanem‘s Rule 12 waiver of venue does not preclude his separate jury-instruction challenge.2 United States v. Casch, 448 F.3d 1115, 1117–18 (9th Cir. 2006). In Casch, the defendant did not raise a venue challenge until his objection to a lack of a “jurisdictional element” in the jury instructions. Casch, No. 05-30270, Brief of Plaintiff-Appellee United States, 2005 WL 4668741, at *29–31 (Dec. 9, 2005). Even though he had waived his venue challenge under Rule 12, and despite the government‘s argument that waiver applied, ibid., we did not find waiver of the jury-instruction challenge. Instead, we proceeded to the merits, and we found the district court‘s failure to instruct the jury on venue to be error, but we affirmed because the error was harmless. Casch, 448 F.3d at 1117–18.
B. Where Venue Lay Under § 3238
The parties do not dispute that the conduct charged in count 3 of the superseding indictment was committed “out of the jurisdiction of any particular State or district.”
1. “First Brought”
The district a defendant is first brought to is the district into which the defendant first comes “[from outside the
The length of time a defendant spends in the district to which he is first brought does not matter, nor does the purpose. See Chandler v. United States, 171 F.2d 921, 927, 932–33 (1st Cir. 1948) (holding that defendant was first brought to Massachusetts after plane transporting him, in custody, from Canada made emergency landing there); United States v. Han, 199 F. Supp. 3d 38, 49–50 (D.D.C. 2016) (holding that defendant was first brought to Hawai‘i after plane transporting him, in custody, from American Samoa had layover in Honolulu). And flying through a district‘s airspace does not count; only landing there does. United States v. Lozoya, 982 F.3d 648, 652 (9th Cir. 2020) (en banc) (“Neither Article III nor the Sixth Amendment says that a state or district includes airspace, and there is, of course, no indication that the Framers intended as such.“); see also Chandler, 171 F.2d at 932–33 (holding that defendant was not first brought to Maine even though plane carrying him, in custody, first crossed into United States airspace there).
2. “Arrested”
The district a defendant is arrested in is the one “where the defendant is first restrained of his liberty in connection with the offense charged.” Liang, 224 F.3d at 1061 (quoting Erdos, 474 F.2d at 160). In contrast to the “first brought” provision, this portion of
3. “In Connection With”
Here, it is undisputed that Mr. Ghanem was in custody when brought to the United States from Greece by air. And it is undisputed that he first landed in the Eastern District of New York before continuing on to the Central District of California.
What the parties dispute is whether Mr. Ghanem‘s custody at that time—resulting from his arrest in Greece—was in connection with the alleged
a. Precedent and Other Case Law
The precise contours of when a deprivation of liberty is in connection with an offense for the purposes of
We start with Liang, which is binding on us. There, at the time the defendant was deprived of his liberty, his vessel had been interdicted and boarded—and he was taken into custody for suspected alien-smuggling—within the District of Guam. 224 F.3d at 1061. The government then took him to the District of the Northern Mariana Islands, where he was indicted several months later with three alien-smuggling offenses. Ibid. But because the defendant had been first detained in Guam, within the territory of the United States, we held that, for purposes of
In Liang, we quoted approvingly an out-of-circuit case, United States v. Provoo, 215 F.2d 531 (2d Cir. 1954). Distinctive in Provoo is that the government was already investigating treason allegations, with which the defendant was ultimately charged, even though the military was detaining him for alleged sodomy. The Army detained him for four months in Maryland before dropping the sodomy charge and taking the defendant to New York, where he was discharged from the service, handed over to the FBI, and charged with treason in the civilian courts. 215 F.2d at 538. The Second Circuit found that the Army‘s four-month detention of the defendant at the behest of the Justice Department was effectively an arrest for treason in Maryland. Ibid. Thus, venue under
We also looked in Liang to another Second Circuit case, United States v. Catino, 735 F.2d 718 (2d Cir. 1984). There, the defendant had been convicted of drug charges in the Southern District of New York but did not report for the start of his sentence, instead obtaining a passport under a false name and using it to travel to and from France. Id. at 719–20. French police eventually arrested him for heroin trafficking, and he was removed from France after serving a prison term there. Id. at 720–21. Upon his arrival in the Eastern District of New York, federal agents arrested him for additional drug charges based on his conduct while a fugitive. Id. at 721. But those charges were dropped, and he was taken to the Southern District of New York to begin serving his outstanding sentence on drug charges. Ibid.
While in custody in the Southern District, he was indicted for the domestic bail-jumping offense (for failing to report for the sentence he was currently serving). Ibid. Before his trial on that charge, a superseding indictment added a count of using a passport issued under a false name while in France. Ibid. The defendant moved to dismiss the superseding indictment, arguing that venue for the charge lay exclusively in the Eastern District, where he was “first brought” under
In United States v. Holmes, 670 F.3d 586 (4th Cir. 2012), the Fourth Circuit took what it called an “offense-specific” approach, which it contrasted to an “indictment-specific” approach. Id. at 594–96. There, the defendant had been arrested in the Eastern District of Virginia on charges of sexual assault against his stepdaughter at an air force base in Japan, but the indictment was dismissed because he was still on active duty in the military, prohibiting his prosecution by civilian authorities. Id. at 589 & n. 1. After his discharge from the Air Force, the government refiled the same charges in the same district, and the defendant was arrested in North Carolina and taken to the Eastern District of Virginia. Id. at 589. That indictment was dismissed—incorrectly, as it would later turn out—for lack of venue in the Eastern District of Virginia, and the government refiled the same charges hours later in that same district now that the defendant was present there in custody. Id. at 590.
The defendant appealed his eventual conviction, arguing that North Carolina was his place of first arrest on the charges because his initial arrest in Virginia was void because he was still in the military. Id. at 593. In answering the question of where the defendant had been first arrested, the Fourth Circuit held that “the relevant inquiry is not the district of arrest for a specific indictment in a case‘s procedural history, but rather the district of arrest for th[e] specific offense, even if there is a subsequent dismissal of the original indictment or filing of a subsequent indictment regarding that offense.” Id. at 595. It found this analysis to “comport[] with the purpose of establishing venue“—allowing it “to be definitively determined based on the static location of where a defendant is determined to be ‘first arrested or brought’ with respect to the offense.” Ibid. Otherwise there would need to be “reevaluation of [venue] at each stage of any subsequent procedural developments as
with subsequent or superseding indictments for the same offense.” Ibid. Following this approach, the Fourth Circuit held that, because the defendant had initially been arrested in the Eastern District of Virginia, even though that arrest was improper, venue there was proper because the third indictment contained the same two charges as the first. Id. at 596-97.
The Fifth Circuit took a different, arguably “indictment-specific” approach in United States v. Wharton, 320 F.3d 526 (5th Cir. 2003). There, the defendant was arrested in the Middle District of Florida after prosecutors had filed a complaint in the Western District of Louisiana for conspiracy to murder his wife in Haiti and insurance-fraud charges based on that murder. Id. at 536. He was taken to Louisiana; while detained there, the government obtained a superseding indictment charging him with the foreign murder of his wife. Ibid. Looking to Catino as analogous, the Fifth Circuit held that the defendant‘s later indictment and arrest on murder while detained in the Western District of Louisiana was sufficient to lay venue for murder there, even though his previous arrest in Florida had been for conspiracy to murder the same victim. Id. at 536-37.
We also note a well-reasoned district court case, United States v. Hong Vo, 978 F. Supp. 2d 49 (D.D.C. 2013). There, the court held that, “for venue to lie in a
A second defendant in Hong Vo had also been arrested in Colorado as a material witness. Id. at 51. When cooperation negotiations with the government broke down a few weeks later, that defendant was charged with conspiracy and later charged in the District of Columbia with bribery and visa fraud as a coconspirator. Id. at 51-52. The district court held that this defendant had also been arrested in Colorado in connection with those crimes, even though at the moment of arrest, the defendant had not been charged with any offense. Id. at 64. The court based this ruling on the fact that the government had considered the second defendant “to be a coconspirator and a target of the investigation.” Ibid.
b. Extracting Relevant Considerations
From our precedent and other case law, we can identify several factors indicating when an arrest meets the important condition of being in connection with a later-added offense.
i. Centrality of a Later-Added Charge to the Reason for Arrest
First, if the later-charged offense is central to the reason for the initial arrest, then that arrest is in connection with that later-charged offense. We see this principle used in our own precedent. In Liang, the defendant was detained in Guam because government agents found him smuggling people into the United States, and the charges later brought in the Northern Mariana Islands were for three counts of alien-smuggling. 224 F.3d at 1061. Thus, his initial arrest was connected to those later charges.
Likewise in other circuits. In Holmes, the defendant was first arrested for abusing his stepdaughter overseas, and the charges in the third indictment were for the same conduct. 670 F.3d at 588, 590. The Fourth Circuit held that the defendant‘s initial arrest was in connection with the offenses charged in the third indictment. Id. at 596. And in the Hong Vo district-court case within the D.C. Circuit, we see the same principle. The court there recognized the inherent connection between an arrest for conspiracy and later-added charges for the substantive offenses underlying that conspiracy. See 978 F. Supp. 2d at 60 (“[T]he required connection is present because Hong Vo‘s initial arrest was very closely related to the bribery and visa fraud counts: she was arrested on a charge of conspiracy to violate certain statutes
In contrast, if the later-charged offense is less central to the reason for the arrest, then the arrest is less likely to be in connection with the later-charged offense. Thus, in Catino, where the reason for the defendant‘s initial arrest (drug importation) differed substantially from the defendant‘s later charge (passport fraud), venue was found to lie where the defendant was being detained once the later charge was brought. See 735 F.2d at 723-24. Of course, it is true that the passport fraud in Catino was related to the drug-importation charge—the defendant there used the fraudulently obtained passport to travel in and out of France while smuggling heroin, Id. at 720. But “connections, like relations, ‘stop nowhere.‘” Maracich v. Spears, 570 U.S. 48, 59 (2013) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)). The key is the centrality of the later-charged offenses to the initial arrest. The passport fraud with which Mr. Catino was later charged was not at the heart of the ongoing heroin smuggling for which he was initially arrested at the airport.
The government points to Wharton in trying to show that the centrality of the later-added charge to the reason for arrest is immaterial. But, like the Hong Vo court, we disagree with the Wharton panel‘s reasoning. The plot to murder Mr. Wharton‘s wife was central to the insurance-fraud scheme—indeed, the initial indictment charged the defendant with conspiracy to kill his wife in Haiti. Indictment, United States v. Wharton, No. 5:00-cr-50066-DEW-RSP (W.D. La. Sept. 25, 2000), Dkt. No. 1. And the foreign-murder charge was not brought with the initial indictment because the Attorney General had not yet authorized it. Minute Entry, Wharton, No. 5:00-cr-50066-DEW-RSP (W.D. La. Nov. 2, 2000), Dkt. No. 22. We cannot accept that an arrest for conspiracy to kill a person is unrelated to a later-added substantive charge of killing that person.3
ii. Lapse of Time Between the Arrest and a Later-Added Charge
Besides the centrality of the conduct charged to the stated reason for arrest, another principle we may garner from the case law is that the length of time between the arrest and a later-added charge can indicate how connected the charge is to the arrest. A short gap often reflects a close connection between the initial arrest and later charge. See Liang, 224 F.3d at 1058 (less than two months between arrest and indictment); Holmes, 670 F.3d at 589-90 (seven months between first and second indictments); Hong Vo, 978 F. Supp. 2d at 51-52 (just over one month between arrests in Colorado and indictment in D.C.). But see Wharton, 320 F.3d at 536 (five months between arrest in Florida and superseding indictment adding murder charge in Louisiana). A long span of time tends to indicate the opposite. See Catino, 735 F.2d at 721, 724 (over two years between initial arrest for drug charges and later indictment for passport fraud; defendant still in custody for previously imposed prison sentence independent of either passport or new drug charges, not held on pretext).
iii. Government Conduct
The substantive and temporal relationships between the arrest and the later-charged
Thus, evidence that a restraint of liberty is in connection with later-charged offenses includes active government investigation for those offenses at the time of the initial arrest. See ibid.; accord Catino, 735 F.2d at 720-21 (discussing the government‘s extradition request based on charges of importing heroin and conspiracy to import heroin, not passport violations); see also Hong Vo, 978 F. Supp. 2d at 64. Contra Wharton, 320 F.3d at 536-37 (holding that Florida arrest for insurance fraud and conspiracy to murder was unconnected to later substantive murder charge). Such evidence would also include continuing to detain the defendant on the offense of arrest despite unjustifiably delaying proceedings on that crime. See Provoo, 215 F.2d at 538. And the government‘s deliberate attempts to manipulate venue, as in Provoo, should draw great skepticism toward its claim that an arrest and later-added charge are unrelated. See ibid..
c. The Government‘s Contrary Test
The government urges a different, bright-line rule. Under its test, Mr. Ghanem was first arrested for the
First, it is foreclosed by our precedent. If the government‘s test were right, then Liang would have come out the other way. The charge there had not “come into being” until the defendant was in the District of the Northern Mariana Islands. 224 F.3d at 1058. Under the government‘s rule, venue would have lain there. But it did not—we held that the defendant was arrested in the District of Guam, where he was restrained of his liberty before he had been charged. Id. at 1062.
Second, the government has pointed to no case—in circuit or out—supporting the proposition that the government can bring a person into the country, already in custody on an offense committed abroad, and then select venue afterward using a superseding indictment for a related foreign crime. Even Wharton, to the extent that it used a test like the government‘s, does not support this proposition. The defendant there was not arrested until he was already inside the United States. 320 F.3d at 530-31.
Third, the government‘s test would violate the constitutional allocation of the power to set venue. The Constitution gives Congress primacy in selecting venue for crimes committed overseas.
It is no response that
The government‘s “in connection with” test would do just that. That test would let the government take a defendant, already in custody in the Central District of California (whether brought there from outside the country or initially found and arrested there), to (say) Guam or Alaska, bring a superseding indictment there, and thereby lay venue. The constitutional purpose of our venue rules is to prevent exactly that from happening. Indeed, that was one of our grievances against George III—“For transporting us beyond seas to be tried for pretended offences.” The Declaration of Independence, para. 21 (U.S. 1776). A bright-line rule allowing such a result is unconstitutional.
d. Application
We turn now to the crux of the matter: whether Mr. Ghanem‘s arrest in Greece was in connection with the alleged
First, the government itself has conceded the alleged
All of the charges in this case relate to defendant‘s work as an illicit broker of weapons, munitions and related services, and all are connected with defendant‘s common scheme of exporting, transferring, and brokering defense articles and defense services in violation of U.S. criminal law. There is a substantial overlap of evidence on the charges in each indictment, and of persons with whom defendant conspired to commit the offenses alleged in each indictment.
Dist. Ct. Dkt. No. 170, at 6. With these concessions, we are inclined to think that the alleged
Second, the circumstances surrounding the arrest strongly suggest that the government was actively investigating Mr. Ghanem‘s alleged surface-to-air-missile activities in the months before his arrest in Greece.4
For example, government trial exhibit 201 was an email from Mr. Ghanem, sent in May 2014, with a PDF attachment advertising his company. The attachment offered to manage “[a]ntiaircraft missile launching, artillery and antiaircraft systems” among other services. And alongside more modest wares such as metal detectors, gelatinized dynamite, and self-propelled Howitzers, the attachment specifically advertised a “9M-32M STRELA 2M Portable Anti-aircraft Missile System,” a “9M-36 STRELA 3 Portable Anti-aircraft Missile System,” a “9M-310 IGLA 1E Portable Anti-aircraft Missile System,” and a “Set of Control equipment and Launch modules for the IGLA-type missile.”
The government entered into evidence several other emails from Mr. Ghanem, sent in 2013 and 2014, concerning transactions involving Igla and Strela missiles. Not to mention emails either sent or received by Mr. Ghanem in March and April 2015 discussing the specific Igla-operator transaction charged in count 3 of the superseding indictment. Overall, the record makes clear that the government was aware of and investigating Mr. Ghanem‘s alleged missile transactions well before his arrest in Greece.
Given that active investigation, the government‘s one-year delay between Mr. Ghanem‘s arrest and the later indictment bringing the
Thus, because (1) the government has conceded in the district court that the conduct for which Mr. Ghanem was arrested was very similar to that for which he was charged in count 3 of the superseding indictment, (2) government agents were actively investigating Mr. Ghanem at the time of his arrest for the conduct that would later be the basis of that count, and (3) the facts support a view that the government tried to manipulate venue in this case, we hold that the jury could have reasonably found it more likely than not that Mr. Ghanem‘s arrest in Greece was connected to his alleged violation of
C. Harmfulness
Having found erroneous the instruction directing the jury to disregard foreign arrests, we now determine whether that error was harmful. United States v. Kleinman, 880 F.3d 1020, 1034 (9th Cir. 2017). It was.
Because the right to trial in the proper venue is constitutional, we deem an erroneous venue instruction harmful unless the government shows beyond a reasonable doubt that the error was harmless. See id. at 1034-35. That is, the government must show that there was no “reasonable possibility that the error materially affected the verdict.” United States v. Valle-Valdez, 554 F.2d 911, 914-15 (9th Cir. 1977); Chapman v. California, 386 U.S. 18, 23-24 (1967).
If the court had not given the erroneous venue instruction, there is a reasonable likelihood that the jury may have acquitted Mr. Ghanem. Without the instruction, Mr. Ghanem would have been able to argue that the first restraint of his liberty in connection with the alleged violation of
D. Some Remarks
We recognize the peculiarity of this result. An acquittal based on venue—to which jeopardy would attach—would have been a reasonable jury verdict (assuming proper instructions), but Mr. Ghanem was not entitled to a dismissal of the indictment under a Rule 29 motion. That strangeness arises from this case‘s particular legal posture. Mr. Ghanem waived his venue challenge because it was untimely, so he could not ask the district court to “take the venue issue from the jury and determine it as a matter of law,” as was done in United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012). But, as noted above, our precedent entitles a defendant, even one who has waived venue
In future cases with similarly muddled postures, a district court might consider using a special-verdict form requiring a venue finding separate from substantive guilt. That would reduce a defendant‘s incentive to sandbag a venue defect by failing to raise the issue pretrial but then attempting to win an acquittal by later requesting a venue instruction.
IV. Other Claims on Appeal
We now dispose of Mr. Ghanem‘s remaining claims.5
A. Extraterritoriality
Mr. Ghanem argues that
The statute is clear that conduct listed in subsection (a) by a United States national outside of the United States violates
Mr. Ghanem advances the canon of constitutional avoidance to avoid this outcome, but that canon “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Nielsen v. Preap, 139 S. Ct. 954, 972 (2019) (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)). Because the statute is unambiguous, we do not resort to the canon.
B. The Doctrine of Specialty
As with his venue claim, Mr. Ghanem waived his claim based on the doctrine of specialty by failing to raise it before trial without good cause.
C. Due Process
Mr. Ghanem contends that due process and fundamental fairness require the dismissal of count 3 of the superseding indictment. He preserved this claim below, so we review it de novo. United States v. Morris, 633 F.3d 885, 888 (9th Cir. 2011) (per curiam).
Mr. Ghanem is correct, of course, that a prosecution of extraterritorial conduct must provide due process.
We have already rejected that argument. Citizenship alone is a sufficient connection with the United States to permit the application of its criminal laws to a citizen‘s conduct overseas. Clark, 435 F.3d at 1108-09.
Mr. Ghanem also argues that he “justifiably relied on” an agreement he made with the Greek government not to appeal his extradition on the condition that he would be prosecuted only for the charges for which it surrendered him to the United States. Because the initial charges were for lesser crimes with Guidelines ranges of 78 to 97 months, he contends
Mr. Ghanem did not raise this argument in his pretrial motion to dismiss for due-process violations, and the government claims that it is waived. Despite the Supreme Court‘s pronouncement that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below,” Lebron v. Nat‘l R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (alteration in original) (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)), our precedents are in apparent conflict over whether a particular argument supporting a claim can be waived.7
But we need not resolve that apparent conflict here because even if Mr. Ghanem preserved his argument, he provides no authority to support its merits. He cites only two cases, Santobello v. New York, 404 U.S. 257 (1971) (sans pincite), and United States v. Shapiro, 879 F.2d 468, 470-72 (9th Cir. 1989). These cases concern only whether the government may renege on a plea agreement with a defendant, not the due-process implications of the government‘s failure to abide by a foreign country‘s bargain. Nor does United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995), cited in Mr. Ghanem‘s reply brief, bear on this question—Barona was about searches and seizures in foreign countries and whether they “shock the conscience” or fail to comply with foreign law. Lacking sufficient briefing on this due-process argument, we deem it waived on appeal and do not pass on its merits.
We likewise deem Mr. Ghanem‘s final due-process argument waived on appeal. He argues that the government‘s ex parte request to the Greek government to consent to his prosecution for violating
We therefore decline to dismiss the
V. Conclusion
We vacate Mr. Ghanem‘s conviction on count 3 of the superseding indictment, vacate his sentence, and remand for resentencing
VACATED and REMANDED.
Notes
Moreover, the pages that the government‘s brief cites do not refute our finding. GER 259 is a page of trial transcript. There, HSI Special Agent Peterson describes government trial exhibit 201 as an email “sent from the defendant‘s gmail account . . . dated May 14, 2016” (emphasis added). But that is either a transcription error or an accurate transcription of the witness‘s factual error. The government submitted a copy of exhibit 201 along with its brief in this court. The exhibit plainly states “Sent: Tuesday, May 6, 2014 1:52 AM.” (emphasis added). Also, as the government acknowledged in its brief, Mr. Ghanem had already been arrested in December 2015. It seems unlikely that in 2016 he still had access to his Gmail account from a California jail cell.
The other GER citations for the government‘s proposition refer to devices seized from Mr. Ghanem at his arrest. But the fact that the government found evidence on these devices does not negate that it had access to Mr. Ghanem‘s Gmail account months before the arrest.