United States v. Edward Arao ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50013
Plaintiff-Appellee, D.C. No.
2:18-cr-00121-PSG-2
v.
EDWARD YASUSHIRO ARAO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Argued and Submitted February 8, 2023
Pasadena, California
Before: SCHROEDER, TALLMAN, and IKUTA, Circuit Judges.
Defendant-Appellant Edward Arao was a Gardena Police Officer and the
“responsible person” for a corporate federal firearms licensee (FFL) named “Ronin
Tactical Group” (Ronin).1 A jury twice convicted Arao of dealing firearms without
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Both individuals and corporations may apply for a license to deal firearms.
“[A]ny corporate applicant must provide a wealth of information about each
‘responsible person,’ owner, and partner of the company.” United States v. King,
735 F.3d 1098, 1105 (9th Cir. 2013). Arao provided this information for Ronin’s
license, but did not have an individual federal license.
a license in violation of 18 U.S.C. § 922(a)(1)(A) and of conspiracy to do the same.
Arao used Ronin’s license and his status as a peace officer to buy “off-roster”
handguns,2 transferred those handguns to himself, and then resold them to third
parties in what he and a co-conspirator styled as “private party transfers.” Arao
argues that the evidence presented at trial was insufficient to show that he “willfully”
violated the law. He also argues that § 922(a)(1)(A) is unconstitutionally vague as
applied to him. We disagree and affirm.
1. Arao argues that the evidence presented at trial was insufficient to support
the jury’s finding that he acted “willfully” as required by § 924(a)(1)(D). To prove
that a defendant willfully sold firearms without a license, the government must
establish beyond a reasonable doubt that the defendant “acted with knowledge that
his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 191-92 (1998)
(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)). The government need
not prove that the defendant was aware of the specific licensing requirement that he
was violating. Id. at 198-99. “[K]nowledge that the conduct is unlawful is all that
is required.” Id. at 196.
2
California maintains a “roster” of handguns approved for sale in the state. See
Cal. Penal Code § 32015. During the relevant period of time, gun dealers were not
allowed to sell “off-roster” handguns to the public, see id. § 32000(a)(1), but an
exception existed for police officers, who could buy them, id. § 32000(b)(4), and
resell them in private sales, see id. §§ 27545, 28050(a), 32110(a); see also A.B. 2699,
2019-2020 Reg. Sess. (Cal. 2020) (amending the statute).
2
In reviewing the sufficiency of the evidence following conviction, we must
construe the trial evidence in the light most favorable to the prosecution. United
States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). We “may not
usurp the role of the finder of fact by considering how [we] would have resolved the
conflicts, made the inferences, or considered the evidence at trial.” Id. at 1164. In
the face of conflicting evidence, we “must presume . . . that the trier of fact resolved
any such conflicts in favor of the prosecution.” Id. (quoting Jackson v. Virginia, 443
U.S. 307, 326 (1979)). After the evidence is viewed in this light, we then determine
whether “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 319).
Arao argues that we should reverse the jury’s verdict because he honestly
believed that a “loophole” in state and federal law permitted his conduct. Arao
points to the absence of direct evidence showing that he knew Ronin’s license did
not cover his private party transfers. Arao also kept transaction records as required
by state and federal law, complied with California law regarding background checks
and waiting periods, and conducted all of his business out in the open. But the
government presented substantial circumstantial evidence of Arao’s willfulness. For
example, the jury heard that Arao deliberately transferred each “off-roster” firearm
from Ronin to himself as an exempt police officer, and later resold those guns in
private party transfers. Arao also made several false statements on ATF forms,
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including when he asserted that he was the “actual buyer” of 41 firearms which he
later resold over varying periods of time. And the government presented evidence
that Arao was a police officer and, as part of the application process for Ronin’s
FFL, had been provided with information about federal firearms laws.
This evidence is sufficient to support the jury’s verdict. A rational trier of fact
could have inferred that someone with Arao’s professional experience had a high
degree of knowledge about firearms laws, and therefore knew Ronin’s license did
not cover his personal sales. See United States v. Hernandez, 859 F.3d 817, 822 (9th
Cir. 2017) (per curiam). A rational trier of fact could also have found that Arao’s
efforts to structure his transactions as “private party transfers” showed that he knew
Ronin’s license did not cover them. See id. These “private party transfers” were
possible only because Arao first transferred the firearms from Ronin to himself, as a
private party, see Cal. Penal Code § 32000(b)(4), and then sold the firearms to
another private party. This is because California law permits transfers of off-roster
firearms only between private parties and “through” a licensed dealer that is not a
party to the transaction. See id. §§ 27545, 28050(a), 32110(a). Thus, a reasonable
jury could find that, in order to comply with California law, Arao transferred the
firearms to himself and resold them, knowing he was acting as a private party and
not acting on behalf of Ronin, a licensed dealer. Finally, Arao’s false statements on
ATF forms were further evidence of his intent to conceal his activities and violate
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the law. See King, 735 F.3d at 1106. Even if Arao’s belief in a legal loophole could
be considered “an equally plausible innocent explanation” for his conduct, on this
record a rational jury could have found that he acted willfully. See Nevils, 598 F.3d
at 1169.
2. Arao also argues that § 922(a)(1)(A) is unconstitutionally vague as applied
to him because California law allowed police officers to buy and resell off-roster
firearms and because he was the “responsible person” for a corporate FFL.
However, his as-applied vagueness challenge “must be examined in the light of the
facts of the case at hand.” United States v. Harris, 705 F.3d 929, 932 (9th Cir. 2013)
(quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)). Here, the jury was
instructed that to convict Arao, it had to find that he acted “willfully”—that is, Arao
knew he was acting unlawfully. Bryan, 524 U.S. at 191-92. Given that finding, we
cannot conclude that the statute “failed to put [Arao] on notice that his conduct was
criminal.” United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009). Nor can
California’s state law, or its interplay with federal law, render the federal §
922(a)(1)(A) void for vagueness. See United States v. Moore, 109 F.3d 1456, 1466-
67 (9th Cir. 1997).
AFFIRMED.
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