UNITED STATES of America, Plaintiff-Appellee, v. Yasith CHHUN, Defendant-Appellant.
No. 10-50296.
United States Court of Appeals, Ninth Circuit.
March 11, 2014.
Argued and Submitted Nov. 4, 2013.
In order to obtain a new trial based on newly discovered evidence, Wilkes must establish that: (1) the evidence is newly discovered; (2) his failure to discover the evidence sooner was not the result of a lack of diligence; (3) the evidence is material; (4) the evidence is neither cumulative nor merely impeaching; and (5) the evidence indicates a new trial would probably result in acquittal. United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005).
We need not address the first four prongs, because it is clear that the new evidence would not “probably result in acquittal.” Id. at 601. In Wilkes I, we noted that “[t]his was not a close case.... While Combs‘s testimony may have significantly helped the government‘s case, prosecutors also presented over two-dozen other witnesses and extensive documentary evidence of Wilkes‘s guilt.” Wilkes I, 662 F.3d at 541. Wilkes argues that declarations obtained from Cunningham—which state that Wilkes never bribed Cunningham—and court documents related to a mortgage fraud scheme run by Cunningham‘s associate Kontogiannis—which Wilkes argues show he lost money to the scheme rather than used Kontogiannis as a means to bribe Cunningham—would likely result in his acquittal, despite this mountain of evidence.
Self-serving declarations by a convicted criminal, however, are unlikely to persuade a jury, especially where those statements are directly contradicted by Cunningham‘s own sworn statements at his plea colloquy. The evidence of Kontogiannis‘s fraud scheme also would not likely have resulted in acquittal because there is no new evidence to support the argument that Wilkes paid Kontogiannis as part of that scheme, instead of as a bribe to Cunningham.
CONCLUSION
For the foregoing reasons we AFFIRM the district court.
Jean-Claude Andre (argued), United States Department of Justice, Office of the United States Attorney, Los Angeles, CA, for Plaintiff-Appellee.
Before: DIARMUID F. O‘SCANNLAIN, SUSAN P. GRABER, and CARLOS T. BEA, Circuit Judges.
BEA, Circuit Judge:
Yasith Chhun appeals his convictions for violations of
I. Factual Summary
In 1975, the Khmer Rouge, a communist party led by Pol Pot, rose to power in Cambodia. Under Pol Pot‘s regime, millions of Cambodians died from execution, disease, and starvation, and were buried in mass graves known as “killing fields.” One of Pol Pot‘s field commanders was Hun Sen.
In 1979, Vietnamese communists occupied Cambodia, staying until 1989. During this period, Hun Sen and other former Khmer Rouge members were designated by the Vietnamese as surrogate leaders of Cambodia. Hun Sen, as a member of the Cambodian People‘s Party (“CPP“), became Prime Minister of Cambodia in 1989. After losing the 1993 election, Hun Sen threatened military action and was given a share of the Prime Minister position, along with Prince Norodom Ranariddh. In 1997, Hun Sen led a coup d‘etat against Prince Ranariddh and took sole possession of the Prime Minister position.
In 1998, both Houses of the United States Congress issued resolutions condemning Hun Sen‘s coup. H.R. Res. 533, 105th Cong. (1998); S. Res. 309, 105th Cong. (1998). These resolutions supported prosecuting Hun Sen in the International Criminal Court for “war crimes, crimes against humanity, and genocide.” Id.
Yasith Chhun, a tax preparer in the United States who was born in Cambodia and emigrated to the United States as a child, also objected to Hun Sen‘s 1997 seizure of power. In October, 1998, Chhun traveled to the border between Thailand and Cambodia to meet with opponents of the CPP who believed that Hun Sen should be removed from power. Those at the meeting formed the Cambodian Freedom Fighters (“CFF“), with Chhun as the party‘s president. The purpose of the CFF was to remove Hun Sen from power and become the controlling party in Cambodia.
Following the formation of the CFF, Chhun held multiple meetings with other members of the CFF in Long Beach, California to plan Hun Sen‘s overthrow. They called this plan “Operation Volcano.” It involved a military strike against government targets in Cambodia‘s capital, Phnom Phenh. Chhun informed the other CFF members that, although loss of life was inevitable, the number of casualties would be low because the Cambodian people would turn against Hun Sen and support the CFF.
In 1999, members of the CFF committed a series of small-scale attacks—which they called “popcorn attacks“—on Cambodian establishments. In one popcorn attack in February, 1999, a CFF operative threw a grenade into a bar, injuring several patrons and killing at least one.
Meanwhile, Chhun continued to raise funds and supplies in the United States. On May 31, 2000, Chhun and several CFF members boarded a plane in Los Angeles, California bound for Thailand. While in Thailand, Chhun continued to plan Operation Volcano from a house near the Thailand/Cambodia border.
Operation Volcano began on November 24, 2000. CFF soldiers attacked government buildings protected by government forces in Phnom Phenh. Throughout the
More than four years later, on May 31, 2005, the United States government indicted Chhun for violating
Before trial, Chhun filed motions to dismiss Counts One, Two, and Three on the grounds that the United States and Cambodia were not “at peace,” the statutes were void for vagueness, and that the indictment failed to state an offense, all of which the district court denied. At trial, the jury convicted Chhun of all four Counts. At sentencing, the Probation Office calculated Chhun‘s Guidelines-based sentencing range as “life.”2 Chhun did not dispute that this was the correct Guidelines range. The court sentenced Chhun to life in prison, noting in particular that Chhun had the intent to kill and also that at least two innocent people were in fact killed.
Chhun appeals his convictions of Counts One, Two, and Three, as well as his life sentence. He does not appeal his conviction of Count Four.
II. 18 U.S.C. § 956(a) Is Not Ambiguous, and Therefore Chhun Was Correctly Convicted Under It
Count One charged Chhun with conspiring, while within the United States, to commit murder in a foreign country in violation of
We review de novo a district court‘s decision not to dismiss an indictment based on an interpretation of a federal statute. United States v. Wilbur, 674 F.3d 1160, 1170 (9th Cir.2012).
“In interpreting a statute, we must examine its language. If ‘the statute is clear and unambiguous, that is the end of the matter.‘” United States v. Bahe, 201 F.3d 1124, 1128 (9th Cir.2000) (quoting Sullivan v. Stroop, 496 U.S. 478, 482 (1990)) (citation omitted). In this case, there is no ambiguity in the text. The statute prohibits conspiring, while within the jurisdiction of the United States, to commit at any place outside the United States an act that would constitute the offense of murder if committed in the United States’ maritime and territorial jurisdiction. Section 956(a) does not limit its application to “terrorist” acts, or to acts that affect United States citizens or interests. The statute applies to “[w]hoever... conspires with one or more other persons... to commit at any place outside the United States an act that would constitute the offense of murder.”
Moreover, it is not absurd for Congress to want to prevent people within the borders of the United States from plotting to commit murder in a foreign country. That is so even though much of the impetus behind this part of AEDPA was to fight terrorism in the United States. See Pittston Coal Grp. v. Sebben, 488 U.S. 105, 115 (1988) (“It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history....“). Therefore, we hold that
Chhun also argues that
Therefore, we affirm the district court‘s denial of Chhun‘s motion to dismiss Count One.
III. There Was Sufficient Evidence for a Fact-Finder To Conclude That Chhun Had the Intent To Commit Murder
After Chhun was convicted by a jury, he moved the district court for a judgment of acquittal for his conviction of
We review de novo a district court‘s denial of a motion for a judgment of acquittal. United States v. Moses, 496 F.3d 984, 987 (9th Cir.2007). We review de novo claims of insufficient evidence. United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008) (per curiam). Evidence is sufficient to support a conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review a district court‘s denial of a motion for a new trial under the “abuse of discretion” standard. Moses, 496 F.3d at 987.
A conspiracy requires “(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime.” Sullivan, 522 F.3d at 976 (internal quotation marks omitted). Chhun contends that there was insufficient evidence for the government to prove the third prong, that he had the intent to commit the substantive crime of murder. Chhun is correct that, under the jury instructions given in his case, his intent to murder had to be proved, and that mere recklessness or knowledge would not satisfy this burden. There is, however, sufficient evidence, viewed in the light most favorable to the government, to find that Chhun had the
There was sufficient evidence in the record to allow the jury to conclude that Chhun had the intent to murder his enemies when he conspired to overthrow Hun Sen. Therefore, the district court did not abuse its discretion in denying Chhun‘s motion for judgment of acquittal and new trial.
IV. The “at Peace” Element of 18 U.S.C. §§ 956(b) and 960 Was Correctly Submitted to the Jury To Decide, and the District Court Did Not Plainly Err in Its Jury Instruction Defining That Element
Count Two charged Chhun with violating
Chhun filed a motion in the district court to dismiss Counts Two and Three on the ground that the United States was not “at peace” with Cambodia. The district court denied the motion, finding that “at peace” was an element of the crime and that all elements of the crime must be submitted to a jury. Chhun appeals, arguing that “at peace” was a question of law that the district court and not the jury should decide or, in the alternative, that Counts Two and Three should be reversed because the district court defined “at peace” incorrectly in its jury instruction.
A. The District Court Was Correct to Submit to the Jury the Question of Whether the United States and Cambodia were “at Peace”
We review de novo a district court‘s decision not to dismiss an indictment based on an interpretation of a federal statute. Wilbur, 674 F.3d at 1170.
Chhun argues that the “at peace” element in Counts Two and Three is a question of law and not of the sufficiency of proof. Chhun argues that, as a matter of law, the United States and Cambodia were not at peace during the charged period. He cites several pieces of evidence to support this conclusion. First, in July, 1997,
The Supreme Court has held that, in criminal cases, “a jury [must] find [the defendant] guilty of all the elements of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 511 (1995). Here, the parties both acknowledge that “at peace” is an element of the crime. Therefore, under Gaudin, the district court was correct in deciding that the “at peace” element had to be presented to the jury, notwithstanding the facts that Chhun cites.
B. The District Court Did Not Plainly Err in Its Jury Instruction Defining the Statutory Term “at Peace”
Chhun‘s alternative argument is that the lower court incorrectly defined “at peace” in its jury charge. The parties disagree over whether Chhun preserved his objection to the district court‘s definition of “at peace.” If Chhun preserved his objection, then we review de novo, United States v. O‘Donnell, 608 F.3d 546, 548 (9th Cir.2010); if Chhun did not preserve his objection, then we review for plain error, United States v. Hofus, 598 F.3d 1171, 1175 (9th Cir.2010).
A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.... Failure to object in accordance with this rule [results in plain error review].
Chhun did not state his grounds for objecting to the jury instructions before the district court. There is, however, an exception to “the requirement of a formal, timely, and distinctly stated objection when a proper objection would be a pointless formality.” United States v. Klinger, 128 F.3d 705, 711 (9th Cir.1997) (internal quotation marks omitted). This exception applies when a party satisfies a three-pronged test to determine whether an objection to a jury instruction would have been a “pointless formality“:
- throughout the trial the party argued the disputed matter with the court;
- it is clear from the record that the court knew the party‘s grounds for disagreement with the instruction; and
- the party proposed an alternate instruction.
Id. (internal quotation marks omitted). Chhun, however, never presented an alternative jury instruction, and so, at a minimum, fails the third prong of Klinger. Therefore, we review the district court‘s jury instruction for plain error.
The jury instruction defining “at peace” tracked the text of one of the district court‘s opinions in the case:
“At peace,” as that term is used in these instructions, means any time when the United States and another foreign country are not at war with one another or engaged in open and notorious military conflict with one another. Military con-
flict is open and notorious if it would have been known to an ordinary person in the United States who keeps up with world events.
See United States v. Chhun, No. CR 05-00519ADDP, 2008 WL 793386, at *2 (C.D.Cal. Mar. 20, 2008) (unpublished). Even on appeal, Chhun does not articulate an alternative definition for the term “at peace.” The district court below tried to articulate Chhun‘s position for him: “Defendant Chhun‘s position seems to ask the Court to find that the United States is not ‘at peace’ with a foreign nation that it condemns or opposes even if it takes no military action against that country.” United States v. Chhun, 513 F.Supp.2d 1179, 1184 (C.D.Cal.2007). Even assuming, for the purposes of our plain error analysis, that the district court accurately articulated Chhun‘s alternative definition of “at peace,” we conclude that the district court did not plainly err in denying Chhun‘s alternative jury instruction.
The term “at peace” has up to this point been defined only by district courts. In United States v. Terrell, the Southern District of Florida considered whether the Neutrality Act (
In United States v. Jack, the Eastern District of California considered whether the Neutrality Act applied to defendants who were charged with shipping weapons to Laos to overthrow the government. 257 F.R.D. 221 (E.D.Cal.2009). The defendants filed a motion to compel the government to produce documents regarding, among other things, covert military operations against Laos. The defendants contended that the evidence would demonstrate their lack of knowledge that the United States was “at peace” with Laos. Id. at 223. The court concluded that “at peace” meant an absence of overt as well as covert military operations, fearing that otherwise the statute might not give fair notice and thereby be void for vagueness and violate due process. Id. at 231-32. Therefore, the court granted the defendants’ motion to compel discovery of evidence relating to overt or covert military planning or operations as to Laos during the relevant period. Id.
Chhun cites these two cases in support of his contention that the United States may cease to be “at peace” with another nation even in the absence of military conflict if the relationship between the two countries is “distant and tense.” Those two cases, however, both involved actual military conflict between the United States and the foreign country. No case has held that the United States can cease to be “at peace” with another nation with the complete absence of some kind of military operation.
Indeed, the history of the Neutrality Act (
We therefore hold that the district court did not plainly err in its jury instruction when it defined “at peace” as the absence of “war” or “military conflict,” and thereby required “military conflict” to end the state of “peace” for the purposes of
V. The District Court‘s Failure To Instruct the Jury To Find an Overt Act That Occurred Within the Five-Year Limitations Period Did Not Affect Chhun‘s Substantial Rights
Chhun argues that the district court should have informed the jury that they must find that at least one overt act supporting each element of the crimes charged in Counts Two8 and Three9 occurred within the statutory period. The statutory period commenced on May 31, 2000, because Chhun was indicted on May 31, 2005. Chhun argues that none of the charged overt acts occurred both within the statutory period and within the United States, as required by
Chhun failed to object to the absence of a jury instruction that the jurors must find an overt act in furtherance of the conspiracy within the five-year limitations period, and so the issue is reviewed for “plain error.” United States v. Fuchs, 218 F.3d 957, 961 (9th Cir.2000). Plain error review consists of three prongs: (1) there is error; (2) the error is plain; and (3) the plain error affects substantial rights. Johnson v. United States, 520 U.S. 461, 467 (1997). If all three of these prongs are met, then the court “may exercise [its] discretion and reverse the defendant[‘s] convictions if permitting the convictions to stand would result in a miscarriage of justice.” Fuchs, 218 F.3d at 963. The government ac-
A plain error affects a party‘s substantial rights when it “affects the outcome of the proceedings.” Id. at 962 (internal quotation marks and brackets omitted). Chhun argues that the error affected the outcome of the trial because none of the overt acts underlying the conspiracy occurred both within the statutory period and within the United States.
We have stated that a jury must “find that an overt act in furtherance of the conspiracy occurred within the statute of limitations.” Id. at 961. The “only function” of proof of an overt act, however, “is to demonstrate that the conspiracy is operative.” United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980) (Kennedy, J.). The elements of a conspiracy can be satisfied even if not all of the conspiracy elements occurred within the limitations period. As we have said, “[a]ctions that cannot be prosecuted because of the statute of limitations can be considered as part of an ongoing conspiracy so long as one overt act in furtherance of the conspiracy occurred during the limitations period.” Wilbur, 674 F.3d at 1176.
Here, there is ample evidence of overt acts within the statutory period that prove Chhun‘s conspiracy to overthrow Hun Sen. Overt Act Number Seven of the Indictment alleges: “On or about May 31, 2000, defendant YASITH CHHUN and other coconspirators... traveled from Los Angeles, California to Bangkok, Thailand in order to set up a base camp to coordinate the attempted overthrow.”10 Overt Act Number Eight alleges: “Between July 2000 and November 2000, at defendant YASITH CHHUN‘s direction, coconspirators who were members of CFF purchased approximately $16,000 of radio equipment from Ham Radio Outlet in Anaheim, California in order to communicate during ‘Operation Volcano.‘” Overt Act Number Nine alleges: “On or about November 6, 2000, at defendant YASITH CHHUN‘s directions, co-conspirators who were members of CFF transported the radio equipment from Los Angeles, California to Bangkok, Thailand so that the equipment could be used to carry out ‘Operation Volcano.‘” Chhun does not dispute that the bulk of activity of the conspiracy occurred within the statutory period, albeit outside the United States.
Moreover, Chhun‘s case is not one in which the court should “exercise [its] discretion and reverse the defendant[‘s] convictions if permitting the convictions to stand would result in a miscarriage of justice.” Fuchs, 218 F.3d at 963. In Fuchs, the court decided to exercise its discretion to reverse the defendants’ convictions because the evidence supporting their guilt “was not overwhelming,” as there were
Therefore, we dismiss Chhun‘s challenge to the district court‘s jury instructions because any error in failing to instruct the jury to find an overt act within the statutory period did not affect Chhun‘s substantial rights.
VI. The Court Did Not Commit Error in Sentencing Chhun to Life in Prison
Chhun challenges his life sentence, arguing that the district court did not adequately consider the
The Supreme Court has said that “failing to consider the [
Chhun argues that the sentencing court did not adequately address three specific issues:
- the fact that the entire prosecution of Mr. Chhun had been politically motivated;
- the failure of the government to charge any other CFF officials for the failed overthrow of Hun Sen proves that the incident was not believed that serious by the federal government, and the failure to charge others involved in the coup d‘etat demonstrated sentencing disparity;
- the failure of the government to take any action against Mr. Chhun until the statute of limitations was about to run proves that he was not considered a future threat.
The sentencing guidelines in this case recommended a sentence of “life.” The sentencing judge stated that, in deciding to sentence Chhun to life in prison, he considered the
Therefore, we conclude that the district court did not commit plain error in sentencing Chhun to life in prison.
VII. Chhun‘s Sentence Was Not Substantively Unreasonable
Chhun argues that his sentence was substantively unreasonable because the sentencing court did not adequately consider Chhun‘s “noble” effort to overthrow a “universally despised despot,” it punished him only because his overthrow effort “fail[ed] to succeed,” and it punished him for the purpose of “send[ing] a message” to foreign governments.
The substantive reasonableness of a sentence is reviewed for abuse of discretion. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.2010). The review must consider the totality of the circumstances, while recognizing that the “‘sentencing judge is in a superior position to find facts and judge their import under
We find that Chhun‘s sentence was not substantively unreasonable. The sentencing court gave numerous reasons to support Chhun‘s sentence and thereby showed that it did not abuse its discretion in sentencing Chhun. In addition to those reasons discussed supra, in Part VI, the sentencing court also explained that illegal conduct will not be shielded from punishment just because it is “noble.” The court rejected Chhun‘s pleas for leniency because he caused the deaths of innocent people. These reasoned justifications for sentencing Chhun to life in prison show that the sentence was not substantively unreasonable. Therefore, we hold that the district court did not abuse its discretion in sentencing Chhun to life in prison.
VIII. Conclusion
For the above-stated reasons, we AFFIRM Chhun‘s convictions and sentencing in all respects.
Notes
Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2).
Whoever, within the jurisdiction of the United States, conspires with one or more persons, regardless of where such other person or persons are located, to damage or destroy specific property situated within a foreign country and belonging to a foreign government or to any political subdivision thereof with which the United States is at peace... shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be imprisoned not more than 25 years.
Section 960 provides:Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both.