Tuesday, April 13, 2021

US v. Ghanem, No. 19-50278 (4-12-21)(Boggs w/M. Smith & Murguia).  Venue when extradited for acts outside the US is the crux of this appeal. This appeal involves convictions after an undercover sting operation for illegal international arms-dealing (and other counts). The government extradited the defendant from Greece on an arms export control act charge originating in Cal Central. He landed in the ED NY. Then he was sent to Cal Central (LA) and faced a superseding charge for 2332g charge (dealing in surface to air missiles). This carries a mandatory minimum 25-year sentence. He pled guilty to all charges but this one and went to trial. The defendant waived his venue challenge by failing to bring in during pretrial motions. The government though asked for and got an erroneous jury instruction on venue. He was entitled to a correct instruction. This was not harmless. The conviction is vacated and remanded.

This appeal deals with the first impression issue of when a person is deprived of liberty under 3238. This statute sets venue for when an offense takes place outside the United States.  The test is where the defendant is first brought, upon arrest, and connected with the offense. The government argues it wasn’t ED NY for 2332g; he was brought back on charges unconnected with 2332g. The defendant argues it was. The defendant was right. The opinion goes through the analysis, and prior precedent in this circuit and cases in other circuits. It looks to the “in connection with” test that has developed, even if not brought when first landed, and not just when the charge is indicted. The test is a factored one and looks to the centrality of the charge to the arrest, the lapse in time, and government conduct. The 9th does not use the indictment centric test (developed by the 5th). Here, the government’s venue instruction, adopted by the court, that stated the foreign arrest was irrelevant was erroneous. The defense instruction was rejected which left it up to the jury if there was a foreign arrest connection.  This was not harmless, as the government conceded the events took place outside the US; the investigation centered on the surface to air missiles, and that the government tried to manipulate venue.  

Congrats to Ben Coleman, CJA, for the win.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/12/19-50278.pdf

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