Sunday, November 17, 2013

Case o' The Week: Secret Agent Man & Jury Instruction Plan - Agency in federal criminal law

“Secret agent man.”

Works better as a song, than a theory of the defense.
United States v. Oliver King, 2013 WL 6038242 (9th Cir. Nov. 15, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Thomas and DJ Dearie.

Facts: King, a Canadian, liked guns. Id. at *1. He was unable to legally sell them in the United States, so he paired up with a US citizen named Zarandi. Id. King proposed, and Zarandi agreed, that King would do the “legwork” for a firearms business in Oregon. Id. King filled-out the paperwork and set up a corporation called, “MHPS.” Id. Zarandi was listed as the CEO and sole ‘responsible person’ on the federal firearm application. Id. The application was approved, and along with other more-straightforward transactions King also bought guns – and offered to sell them, in the United States – behind Zarandi’s back. Id. at *2. He was ultimately arrested, charged with, and convicted of – among other things – unlawfully dealing in firearms. Id.

Issue(s): “King’s proposed instructions stated . . . that he could not be convicted of unlicensed firearms dealing unless the government proved that he was not ‘authorized to act on behalf of another person or corporation that did have a license as a firearm dealer.’ King sought these instructions so that he could argue to the jury that he was not guilty of unlicensed firearms dealing because he only acted on behalf of MHPS, a licensed corporate entity.” Id. at *4. “With regard to his conviction for unlawfully dealing in firearms, King contends that the district court erred in refusing to give his proposed jury instructions, which required the government to prove that King was not acting as an authorized agent of a federal firearms licensee.” Id. at *1.

Held:In an issue of first impression in our circuit, we hold that King is not entitled to such an instruction.” Id.

Of Note: King was also convicted of making material false statements to border agents by not revealing that he was entering the US from Canada to mess with guns. Id. at *8. In reality, however, his lies made no difference: he was the target of an ICE investigation, was being followed and surveilled as soon as he was “allowed” to clear customs, and because he was the target of an investigation it didn’t matter what lies he offered for his reason to cross. Were his lies “material,” because he was going to be admitted regardless so ICE agents could continue their investigation? Yes, says Judge Nguyen: “actual influence is not required, so long as the misstatement has a propensity to influence agency action.” Id. at *8. This disappointing holding forecloses a thoughtful counter-argument laid out in 2011 by dissenting Judge Tashima in United States v. Howard.

How to Use: King’s interesting theory was that he didn’t violate the “dealing in gun” statute because he was an agent of an authorized person or corporation – here, MHPS. Judge Nguyen isn’t keen on that theory, rejecting it as a matter of statutory interpretation. Id. at *4. Of broader import, Judge Nguyen spends a fair amount of time discussing agency theory in the context of federal criminal law. Id. at *5 (discussing with approval United States v. Fleischli, 305 F.3d 643, 652 (7th Cir. 2002)). King is worth a sobering read if mulling an agency defense in another context (such as the purchase of machineguns, the agency theory rejected in Fleischli).

For Further Reading: Can the government supersede with a mandatory minimum charge in retaliation for the defendant filing a suppression motion? Sure – despite the clear spirit of the recent Holder memo, discouraging such vindictive use of mand-mins. 
 Here’s a more interesting question: can the district court dismiss the mand-min count for vindictive prosecution? Sure, explains the Sixth Circuit, in a great new decision: United States v. LaDeau, available here. (“Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.”) 
   This welcome win by Nashville AFPD Michael Holley deserves to be imported into the Ninth.  

“Secret Agent Man” graphic from

Steven Kalar, Federal Public Defender ND Cal, website at

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