United States v. Gabriel Rivero , 889 F.3d 618 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF Nos. 17-10114
AMERICA, 17-10115
Plaintiff-Appellee,
D.C. Nos.
v. 4:16-cr-00713-FRZ-BGM-1
4:08-cr-00771-FRZ-BGM-2
GABRIEL RIVERO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted March 12, 2018
San Francisco, California
Filed May 2, 2018
Before: Richard A. Paez and Sandra S. Ikuta, Circuit
Judges, and Eric N. Vitaliano,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
2 UNITED STATES V. RIVERO
SUMMARY**
Criminal Law
The panel affirmed a conviction for attempting to
smuggle ammunition from the United States, in violation of
18 U.S.C. § 554(a), and the revocation of the defendant’s
supervised release from a prior conviction.
Section 554(a) imposes criminal penalties on whoever
fraudulently or knowingly exports or attempts to export any
“merchandise, article, or object” contrary to any law or
regulation of the United States. At trial, the defendant
objected to the jury instructions and the prosecutor’s closing
argument, contending that § 554(a) required the government
to prove that the defendant knew he was exporting
ammunition. The panel held that the district court did not err
in overruling those objections, because § 554 does not require
the government to prove that the defendant knew the nature
of the “merchandise, article, or object” that the defendant was
exporting contrary to law.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIVERO 3
COUNSEL
Christopher L. Scileppi (argued), Law Offices of Christopher
L. Scileppi PLLC, Tucson, Arizona, for Defendant-Appellant.
Angela Walker Woolridge (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
Gabriel Rivero appeals his jury conviction for attempting
to smuggle ammunition from the United States, in violation
of 18 U.S.C. § 554(a), which imposes criminal penalties on
“[w]hoever fraudulently or knowingly exports . . . or attempts
to export . . . any merchandise, article or object contrary to
any law or regulation of the United States.” At trial, Rivero
objected to the jury instructions and the prosecutor’s closing
argument, contending that § 554(a) required the government
to prove that Rivero knew he was exporting ammunition. We
conclude that the district court did not err in overruling those
objections, because § 554 does not require the government to
prove that the defendant knew the nature of the “merchandise,
article, or object” that the defendant was exporting contrary
to law. 18 U.S.C. § 554(a).
I
On February 11, 2016, Gabriel Rivero was driving a
pickup truck from the United States into Mexico at the
4 UNITED STATES V. RIVERO
Mariposa Port of Entry in Nogales, Arizona. When his truck
passed a speed bump approximately 300 meters from the
border, a spare tire fell from the back of his vehicle. Rivero
attempted to load the tire back into the truck, but he
eventually moved it to the side of the road instead and drove
away, entering Mexico. U.S. Customs and Border Protection
cameras captured the incident. Officers dispatched to the
abandoned tire observed ammunition on the ground next to
the tire and more ammunition visible through a rupture in the
tire. In total, officers recovered 5,441 rounds of ammunition
from the scene.
Approximately one hour after the officers were notified
of the tire, Gabriel Rivero’s brother, Sergio, drove the same
truck through the same port of entry, coming from Mexico,
and officers seized the vehicle. While officers were
interviewing Sergio, Gabriel Rivero, returning to the United
States on foot, was identified through security camera
footage. Officers found that Gabriel lacked authority to
export the ammunition.
On March 12, 2016, Gabriel Rivero entered the United
States again and was detained by law enforcement. Rivero
initially invoked his Miranda rights, but later asked to speak
with the officers as they were preparing to transport him to
county jail. Officers showed Rivero pictures of the truck, the
tire, and the ammunition. Rivero admitted that he had been
driving the truck when the incident occurred. One of the
officers, investigator Daniel Chaves asked, “Why would you
choose to transport weapons and ammunition?” Rivero
responded, “It was ammo.” Chaves then asked Rivero, “Why
did you choose to transport ammo?” Rivero responded that
he “couldn’t find a job,” and was offered $500 to transport
the ammunition.
UNITED STATES V. RIVERO 5
On April 6, 2016, the government charged Rivero on two
counts: (1) smuggling goods from the United States under
18 U.S.C. § 554(a), 22 U.S.C. § 2778, and 22 C.F.R.
§§ 121.1, 123.1; and (2) possession of ammunition by a
convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Count 1 alleged that Rivero had “knowingly attempted to
export and send from the United States any merchandise,
article, or object contrary to any law or regulation of the
United States,” and listed the various types of ammunition
recovered. Count 1 further alleged that the export of such
ammunition was contrary to 22 U.S.C. § 2778 and 22 C.F.R.
§§ 121.1, 123.1 and therefore in violation of 18 U.S.C.
§ 554(a). Rivero moved to sever Count 2 and the district
court granted the motion.
A three-day jury trial on Count 1 was held in December
2016. At trial, Rivero presented evidence to show that he
lacked “knowledge prior to transporting [the truck] that there
was ammunition in the vehicle,” but rather “only learned that
there was ammunition in the vehicle once the wheel fell out”
and ruptured. At the close of the evidence, Rivero moved for
a directed verdict, which the district court denied. The
district court then outlined the proposed jury instructions, to
which Rivero did not object.
In closing argument, the government argued that the
evidence showed that Rivero knew he was smuggling
something that was illegal. Rivero’s counsel objected on the
ground that Count 1 required that a person “kn[o]w he was
transporting weaponry, armaments, munitions across the
line,” and that the government had to prove that Rivero knew
he was smuggling ammunition. The district court overruled
this objection.
6 UNITED STATES V. RIVERO
The district court then instructed the jury that the
elements of the offense for 18 U.S.C. § 554(a) were as
follows:
First, the defendant knowingly attempted to
export and send from the United States any
item, or received, concealed, bought, sold, or
in any manner facilitated the transportation,
concealment or sale of the item prior to
exportation;
Second, the defendant knew the item was
intended for exportation, and
Third, the exportation of the item is contrary
to any law or regulation of the United States.
Rivero’s counsel objected to this instruction on the same
ground, and the district court again overruled it.
The jury returned a guilty verdict on Count 1 and the
government dismissed Count 2. Rivero was sentenced to
92 months imprisonment, followed by 3 years of supervised
release. Because Rivero’s conviction violated the terms of
supervised release from a prior felony conviction, his
supervised release from that conviction was revoked and he
was given a 10-month sentence for the prior conviction, to
run concurrently with his sentence for his violation of
§ 554(a).
II
The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291. We review
UNITED STATES V. RIVERO 7
de novo “whether the jury instructions accurately define the
elements of a statutory offense.” United States v. Chi Tong
Kuok, 671 F.3d 931, 945 (9th Cir. 2012) (quoting United
States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001)).
Rivero’s principal argument on appeal is that the district
court failed to instruct, and the government failed to prove,
the requisite mens rea to convict a defendant under 18 U.S.C.
§ 554(a) for exporting items contrary to 22 U.S.C. § 2778 and
the associated regulations. Section 554(a) makes it unlawful
to knowingly export or attempt to export “any merchandise,
article, or object contrary to any law or regulation of the
United States.”1 Section 2778 imposes registration and
licensing requirements on the export of certain munitions and
makes it illegal to export those munitions without a license.
22 U.S.C. § 2778(a), (b)(1), (b)(2). The applicable
regulations designate the types of ammunition that are subject
to the requirements of § 2778(b)(2) and require a person who
intends to export such items to obtain government approval
prior to export. See 22 C.F.R. §§ 121.1, 123.1(a). Section
1
Section 554(a) provides in full:
Whoever fraudulently or knowingly exports or sends
from the United States, or attempts to export or send
from the United States, any merchandise, article, or
object contrary to any law or regulation of the United
States, or receives, conceals, buys, sells, or in any
manner facilitates the transportation, concealment, or
sale of such merchandise, article or object, prior to
exportation, knowing the same to be intended for
exportation contrary to any law or regulation of the
United States, shall be fined under this title, imprisoned
not more than 10 years, or both.
18 U.S.C. § 554(a).
8 UNITED STATES V. RIVERO
2778(c) provides that “[a]ny person who willfully violates
any provision of this section . . . shall upon conviction be
fined for each violation not more than $1,000,000 or
imprisoned not more than 20 years, or both.” 22 U.S.C.
§ 2778(c).
Rivero makes two arguments regarding mens rea. First,
Rivero argues that when the government prosecutes a
defendant under § 554(a) for exporting items contrary to
§ 2778, the government must prove that the defendant knew
that the exported items were arms, munitions, or military
equipment as specified in § 2778 and the associated
regulations. Second, Rivero argues that in such a
prosecution, § 554(a) incorporates the mens rea of § 2778(c),
such that the government must prove that the defendant
smuggled such items “willfully,” not just “knowingly” as
stated in § 554(a).
The Supreme Court has provided guidance on how to
interpret and apply the term “knowingly” in a criminal statute
such as § 554(a). See, e.g., Dixon v. United States, 548 U.S.
1, 5 (2006) (stating that “unless the text of the statute dictates
a different result, the term ‘knowingly’ merely requires proof
of knowledge of the facts that constitute the offense,” as
opposed to proof that the defendant “acted with knowledge
that his conduct was unlawful.”) (quoting Bryan v. United
States, 524 U.S. 184, 193 (1998)). As we have explained,
“absent clear indicia of congressional intent to the contrary,
an interpretation of ‘knowingly’ in a criminal statute” should
be consistent with two basic principles. United States v.
Crowder, 656 F.3d 870, 874 (9th Cir. 2011). First, the
interpretation “should require the government to prove the
defendant’s knowledge of the facts that constitute the
offense.” Id. Second, “knowingly” in a criminal statute
UNITED STATES V. RIVERO 9
should not be interpreted to “criminalize a broad range of
apparently innocent conduct.” Id. (quoting Liparota v.
United States, 471 U.S. 419, 426 (1985)).
Construing § 554(a) in accord with these principles, we
reject Rivero’s argument that the government had to prove
that Rivero knew the exact nature of the items he attempted
to export. First, the facts that constitute the offense are the
export of “any merchandise, article, or object contrary to any
law or regulation.” 18 U.S.C. § 554(a). Nothing in the
language of the statute requires knowledge of the nature of
the merchandise, article, or object. If Rivero knew that the
truck contained merchandise that was unlawful to export, but
elected not to look in the truck, he would meet the
requirements of § 554(a) of knowing that he was exporting
“merchandise . . . contrary to law.” Second, applying
“knowingly” in this manner does not “criminalize a broad
range of apparently innocent conduct.” Liparota, 471 U.S. at
426.
By contrast, interpreting § 554(a) to require the
government to prove that the defendant knew the nature of
the “merchandise, article or object” would lead to the absurd
result that individuals could avoid criminal liability simply by
being willfully blind to the precise nature of the goods they
were unlawfully exporting or attempting to export. We avoid
giving such “absurd or irrational” interpretations. United
States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013); see also
United States v. Casasola, 670 F.3d 1023, 1029 (9th Cir.
2012) (“[W]e do not impute to Congress an intent to create a
law that produces an unreasonable result.”).
Because § 554(a) does not require the government to
prove that the defendant knew the nature of the “merchandise,
10 UNITED STATES V. RIVERO
article, or object” that the defendant was exporting or
attempting to export “contrary to any law or regulation,” the
district court did not err in overruling Rivero’s objections to
either the jury instructions or the government’s statement of
the law during closing arguments.2
Rivero raises two arguments to the contrary. First, Rivero
argues that United States v. Cardenas, 810 F.3d 373 (5th Cir.
2016) (per curiam) requires the government to prove
knowledge of the identity of the item as an element of
§ 554(a). We disagree. Cardenas involved a defendant
convicted of violating 18 U.S.C. § 554(a) for attempting to
export ammunition in a manner contrary to 22 U.S.C. § 2778.
Id. at 374. On appeal, the defendant argued that “the district
court should have instructed the jury that, to find him guilty
of violations of § 554(a) (smuggling from the United States),
it must find that he violated 22 U.S.C. § 2778(c) (control of
arms exports and imports), with the specific intent to violate
the law.” Id. The defendant conceded “that he believed that
the ammunition was destined for Mexico,” and “that the
evidence would allow a finding that he suspected that the
exportation of ammunition was illegal or that he was acting
in reckless disregard of whether his actions were illegal.” Id.
at 375. Because the defendant conceded that he knew he was
exporting ammunition, the Fifth Circuit did not consider
whether § 554(a) required the government to prove this
knowledge. Rather, the Fifth Circuit rejected the defendant’s
argument the government had to prove specific intent, i.e.,
that the defendant knew that § 2778 required that he have an
export license. Instead, the Fifth Circuit held that “to
2
Rivero does not argue that the district court erred in instructing the
jury that he did not need to know that exporting the “merchandise, article
or object” was unlawful, so we do not reach this issue.
UNITED STATES V. RIVERO 11
establish an offense under § 554(a), the Government is
required to prove only that the defendant knew he was
dealing with ammunition that was intended for export and
that the exportation was illegal.” Id. at 374. Accordingly,
Cardenas provides no support for Rivero’s argument that the
government had to prove he knew he was exporting or
attempting to export ammunition; rather, it supports our
conclusion that the government need not prove that a
defendant had specific intent to violate § 2778.
We also reject Rivero’s argument that § 554(a)
incorporates the mens rea of “willfully” from § 2778(c).
Although § 2778(c) imposes criminal penalties on “[a]ny
person who willfully violates” the registration and licensing
requirements applicable to persons intending to export certain
munitions, 22 U.S.C. § 2778(c) (emphasis added), Rivero was
not charged with violating § 2778. Rather, Rivero was
charged with violating § 554(a) by exporting items contrary
to law, which requires the mens rea of knowingly exporting
such items. The government proved this element of the
§ 554(a) offense by establishing that Rivero knowingly
exported ammunition without a license, in violation of
§ 2778(b). The government did not have to prove the
elements necessary to convict Rivero under § 2778(c),
because conviction under § 2778(c) is not an element of the
offense of violating § 554(a).
Accordingly, we affirm both Rivero’s conviction and his
revocation of supervised release.
AFFIRMED.