United States v. Chhun, No. 10-50296 (9th Cir. Mar. 11, 2014) (Bea, J., with O'Scannlain and Graber) ---

 

What does it mean for two countries to be "at peace"?  Does there have to be an ongoing military operation, or can there merely be tensions and hostilities that have been kept just below the boiling point for a long time?  And what is the way to properly object to a jury instruction involving this question when the district court has already ruled on what it means?

The defendant is a Cambodian immigrant who came to the United States as a child with his family to escape the Pol Pot regime.  Between 1999 and 2000, he conspired with others to overthrow the regime of Hun Sen, an ally of Pol Pot who had come to power following a coup in 1997.  His coconspirators formed the Cambodian Freedom Fighters and ultimately launched "Operation Volcano" in November 2000, which was rebuffed by government tanks after several government buildings in Phomh Penh had been attacked.  CFF soldiers and a civilian were killed in the attack.  After Operation Volcano, the defendant returned to the United States and resumed his life as a tax preparer.

That is, until four and a half years later, when he was indicted on (among other charges) violating 18 U.S.C. § 960, the Neutrality Act.  "Whoever," the Act provides, sets forth from the United States to participate in "any military or naval expedition or enterprise" directed against any country "with whom the United States is at peace," shall be punished under the code.  (He was also charged under 18 U.S.C. § 956(b), which also has the "at peace" element and which carries a maximum 25-year sentence.)  The Ninth Circuit held that the "at peace" question is for a jury to decide as a matter of fact, rather than a question of law for a judge -- the parties had agreed as much at trial, even though the defendant on appeal pointed to resolutions from the House and Senate in 1998 that supported prosecuting Hun Sen for human rights violations that he committed in the coup. 

The court then ruled that the defendant did not properly preserve his challenge to the definition of "at peace" in the jury instructions.  The defendant did not state his grounds for objecting to the instructions, which ordinarily might forfeit an appellate challenge (except for plain error).  But if doing so would be a "pointless formality," there's no need to state the grounds.  Under United States v. Klinger, 128 F.3d 705, 711 (9th Cir. 1997), a "pointless formality" occurs if the defendant argues the disputed matter with the court "throughout the trial," the record makes clear that the court knew what the defendant's position was, and the party proposed an alternative instruction.  Here, the definition of the term "at peace" had been the subject of two of the court's orders, one of which was published in Federal Supplement, Second Series.  In that order, the district court had "tried to articulate" the defendant's position for him.  But what ultimately doomed his objection to the jury instruction to plain-error review was his failure to propose an alternative instruction, either before the district court or the Ninth Circuit.

So then what does it mean for the United States to be "at peace" with a foreign country?  The Southern District of Florida had held that the United States was not "at peace" with Nicaragua when the CIA was funding the Contra rebels, and the Eastern District of California had granted discovery to the defendant to determine whether there had been either an overt or covert military operation against Laos in 2009.  And the Neutrality Act itself had been passed -- in 1794 -- in response to the attempt of French diplomats to use the United States as a staging ground in its war against England.  The point of the act was to prevent United States nationals from becoming involved in foreign wars.  Thus the meaning of "at peace" required "active military operations," and the district court did not plainly err when it included that definition in its jury instruction. 

The defendant was also convicted under 18 U.S.C. § 956 (a), a provision of AEDPA that imposed a maximum life sentence for those who conspire to commit murder abroad.  The court held that this provision was not unconstitutionally vague, and then upheld the life sentence recommended by the probation office as both procedurally and substantively reasonable.

The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/11/10-50296.pdf