Sunday, June 11, 2017

Case o' The Week: Government "Nails" It - Ubaldo and "But For" Causation for Section 2(b) convictions

  For the want of a nail the shoe was lost, as was the horse, the rider, the message, the battle, and the kingdom.

  Attenuation that resonates, for Mr. Ubaldo.
United States v. Ubaldo, 2017 U.S. App. LEXIS 10284(9th Cir. June 9, 2017), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges O’Scannlain and Callahan.

Facts: FBI agents ran a sting focused on weapons illegally imported from the Philippines. Id. at *4. Special Agent Charles Ro met with Ubaldo, purchased one sniper rifle, then purchased AK-47s, grenades, and plastic explosives from Ubaldo and his co-Ds. Id. at *7. A co-D helped federal agents load the purchases in a shipping container in the Philippines–the agents filled out the Bill of Lading as “furniture.”
  The agents later rendered the guns safe, removed the grenades and explosives, then the agents coordinated the transport of the container to California. Id.
  Among other offenses, Ubaldo was charged with 18 USC § 2 (the Federal “Principals” statute) and 18 USC § 922(l), causing the illegal importation of weapons into the United States. Id. at *8.
  Agent Ro had texted the defendants during this sting, but had only preserved responses – not his texts sent. Id. at *10. The agent lost his phone, and the government was unable to find his “sent” texts. Id. at *10.
  The court denied the motion to dismiss based on these lost texts, but gave a curative instruction that the jury was permitted to infer that the texts “contained information against the government’s interest.” Id.
  Ubaldo was convicted after trial.  

Issue(s): “Defendants assert that the evidence was insufficient to support their convictions because they were not involved in the actual importation of the weapons; selling the weapons was not the but-for cause of the later importation; they did not direct the agents to ship the items; and the government agents broke the chain of causation because government agents cannot illegally import weapons. Id. at *21.

Held: “Viewing the evidence in the light most favorable to the government, this claim is meritless.” Id. at *21. “[U]nder § 2(b), Defendants were not required to take an active role in actually transporting or shipping the illicit weapons to the United States. See 18 U.S.C. § 2(b). Rather, the jury could convict Defendants if they “knowingly” and “willfully” caused the weapons to be transported to the United States. Id. Indeed, Defendants could be held criminally responsible for harms that flowed naturally or were a direct result of their conduct. . . . Under the governing law, Defendants’ role was sufficient to support their conviction under § 2(b). . . . The government presented evidence that [a co-defendant] earned thousands of dollars by procuring high-powered weapons and selling them to an undercover agent, who informed him that he would smuggle the guns into Mexico through California. The government also presented evidence that Ubaldo arranged the meetings for weapons sales, put Agent Ro in contact with a Philippine customs official who could help smuggle the weapons out of the country, and was aware that the weapons would be smuggled into Mexico via California. Considering those facts, a reasonable jury could find that Defendants knowingly and willfully caused illicit weapons to be imported into the United States because the importation of the weapons flowed naturally from their conduct.” Id. at *21-*22 (citations omitted).

Of Note: The defense relied on the Supreme’s Burage decision, arguing they were not the “but-for” cause of the importation. Id. at *22-*23. After all, the FBI handled the shipping, the defendants didn’t direct the agents to ship the guns to the U.S., and – as a matter of law – the agents could not violate the substantive statutes. Id. at *23.
  All mattered not, opined the Ninth: “Agent Ro would not have been able to import the weapons into the United States if Defendants never sold them to him.” Id. at *23.
  A disappointing and broad reading of Section 2(b).  

How to Use: In a brief analysis, Judge Rawlinson finds no error in the refusal to dismiss because of Agent Ro’s failure to preserve texts. Id. at *26. It’s another disappointing holding, but note that the district court did give an adverse inference instruction. At minimum, one remedy to emulate, when texts mysteriously go missing.
For Further Reading: Guess how many U.S Attorneys have been nominated to fill a nation full of vacancies? 
  (Odds are, you guessed too high). SeeWhere are the United States Attorneys?,” NYT, available here.  

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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