Wednesday, January 18, 2012

U.S. v. Kuok, No. 10-50444 (1-17-12) (Bybee with Pregerson and Davidson, Sr. D.J.).

The defendant tried to export defense articles without a license. A citizen of Macau, the defendant ran an import/export business. He sought to export military use articles from the US without a license. In these efforts, he was aided by the helpful undercover ICE agents, which led to his arrest in Atlanta while flying to Panama to complete a transaction. At trial, he raised a duress defense, arguing that a Chinese official made him seek the exports under threats to his family. The court declined to give a duress instruction. He was convicted of various conspiracy, attempts, and money laundering counts. On appeal, the 9th gave relief. It vacated two counts for lack of jurisdiction. One count involved money laundering, where the government failed to establish the $10,000 jurisdictional threshold. In an attempt to export count, the 9th held that attempting to cause an export of defense articles without a license is not a crime. In that count, the defendant tried to get an undercover agent to export an article; that differs from the defendant himself attempting. The statute does not reach to others. The 9th vacates two other counts and remands for a new trial because the court should have given a duress instruction. It was a close call, but the defendnat presented evidence that Chinese officials made a threat, were specific, and the defendant could not extricate himself. Although granting relief, the 9th turned down defendant's claims that the venue was manufactured. The 9th comes close to saying that manufacturing venue is always okay. The 9th also rejects various other arguments related to jury instructions.

Congratulations to Todd Burns of the Federal Defenders of San Diego. It is extraordinary to win on jurisdiction and on jury instructions.


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