Monday, May 07, 2018

US v. Rivero, No. 17-10114 (5-2-18)(Ikuta w/Paez & Vitaliano).

Two questions are raised from this opinion: (1) does a defendant need to know the type or nature of the “merchandise, article, or object” he was illegally exporting (here ammunition); and (2) if a spare tire falls 300 meters from the border, does anyone see it?

First, the answer to (2) (spare tire) is “yes.” The defendant’s truck went over a speed bump approaching the border, and Border Patrol cameras captured a spare tire falling out. The defendant tried, but failed, in attempting to load the tire back. He left it.  The truck continued into Mexico. 

Border Patrol went to check out the tire. It was ruptured and ammo was strewn around.  About 5500 rounds of ammunition were found.

An hour later, the truck returned from Mexico, driven by the defendant’s brother.  Then, captured on camera, the defendant walked back into the U.S.  About a month later, the defendant entered the U.S. again.  He was detained and charged with Illegal Exporting Ammunition in violation of 18 U.S.C. § 554(a).

At trial, the defendant objected to the general intent mens rea of the offense, arguing that it should be specific intent. The government has to prove, the defendant argued, that he didn’t just know he was transporting something illegal, but actually knew he was transporting munitions across the border. The same issue was raised on appeal. 

The answer to (1)(knowledge) is “no”.  The 9th looks at 554, which makes it unlawful to export stuff contrary to laws and regulations of the U.S. There is a reference to 22 U.S.C. § 2778, which references certain munitions. The defendant argued, “See, I had to specifically know I was exporting these munitions.”  The exportation must be willful. The 9th rejected these arguments. The 9th looks at Dixon v US, 548 US 1 (2006), which states “knowingly” merely requires proof of knowledge, unless the text dictates otherwise. The text does not so state here, nor is congressional intent to the contrary. Besides, the 9th reasons, a specific intent require would reward willful blindness. 

The decision is here:


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