Tuesday, June 13, 2017

US v. Ubaldo, No. 14-50093 (6-9-17)(Rawlinson w/ O'Scannlain & Callahan). This appeal arises from illegal importation of weapons into the United States.  The 9th affirms the convictions.

Concerned about the illegal importation of weapons from the Philippines, the FBI undertook an undercover sting operation.  Eventually the defendant arranged for weapons to be sold, procured from the military, to undercover agents posing as buyers from various Mexican cartels.  The weapons were shipped from the Philippines to China and then onto Los Angeles.

On appeal, the defendant raises various legal and evidentiary challenges.  As to be expected, the 9th found sufficient evidence that the defendant's conduct, as a conduit and facilitator, caused the weapons to flow naturally.  There was also sufficient evidence for a "but for" test.

The 9th affirmed the denial of a Franks challenge to the search warrant, the denial of suppression, dismissal, and mistrial motions based on bad faith, failure to preserve evidence, and discovery violations.  The jury instructions adequately covered the elements necessary for a finding of guilt.  The evidentiary rulings were not erroneous.

An interesting issue was the analysis of the extraterritorial application of 18 U.S.C.  § 922(1) and 22 U.S.C. § 2778(b)(2). The 9th applied the recent Supreme Court test for applicability of a statute in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2096 (2016). The Court clarified that courts must presume that US statutes do not apply to foreign conduct.  A two-step framework is used to see if the presumption is overcome. The presumption is treated as a substantive canon of construction.

Seeking to establish extraterritorial application, the court must determine if the presumption against application has been rebutted by clear and affirmative indications in the statute.  If a determination is made that the statute does not apply extraterritorially, the court must determine whether the case involves domestic application of the statute.  If the presumption is rebutted in step one, a court does not proceed to step two.

Here, the 9th had no trouble holding a clear indication of extraterritorial application as the statutes concern illegal importation.  By its nature, importation requires conduct outside the country and involves foreign countries. Legislative history also supports the clear intent.

This test is important to those challenging conduct outside the US.

The decision is here:



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