United States v. Rami Ghanem ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50278
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00704-
SJO-1
RAMI GHANEM, AKA Rami Najm
Asad-Ghanem,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 12, 2021
Pasadena, California
Filed April 12, 2021
Before: Danny J. Boggs, * Milan D. Smith, Jr., and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Boggs
*
The Honorable Danny J. Boggs, Circuit Judge of the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. GHANEM
SUMMARY **
Criminal Law
The panel vacated a conviction for conspiracy to violate
18 U.S.C. § 2332g, which prohibits illicit dealings in guided
surface-to-air missiles; vacated the sentence; and remanded
for further proceedings.
In an undercover sting operation, the Department of
Homeland Security captured the defendant, a naturalized
United States citizen, in Greece, and the government
obtained an indictment against him in the Central District of
California. Neither party disputes that all of the defendant’s
alleged conduct took place outside the United States.
The defendant contends that because he was “arrested”
in Greece and “first brought” to the Eastern District of New
York, venue under 18 U.S.C. § 3238 would lie only in the
Eastern District of New York and was improper in the
Central District of California.
The panel held that under Fed. R. Crim. P. 12, the
defendant, who did not bring a pre-trial motion alleging
improper venue, waived that venue challenge. The panel
explained that because the venue defect is apparent from the
face of the indictment, his first objection to venue—in his
motion for acquittal after the close of the government’s
case—was untimely.
**
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. GHANEM 3
The panel held that the defendant preserved his challenge
to the propriety of the district court’s jury instruction—that
“[a]rrests, restraint or detention in a foreign country were
irrelevant to [the jury’s] determination of whether venue is
appropriate in this district.” The panel wrote that according
to this court’s precedent, the defendant’s Rule 12 waiver of
venue did not preclude his separate jury-instruction
challenge.
The panel reviewed de novo whether the instruction
correctly stated the law, and explained that if a jury could
reasonably find that the defendant’s arrest in Greece was
connected to the alleged § 2332g offense, the district court’s
instruction that foreign arrest, restraint, or detention was
irrelevant to the jury’s determination would have misstated
the law. The panel held that the instruction was erroneous
because (1) the government has conceded in the district court
that the conduct for which the defendant was arrested was
very similar to that for which he was charged in the count at
issue, (2) government agents were actively investigating the
defendant at the time of his arrest for the conduct that would
later be the basis of that count, and (3) the facts support a
view that the government tried to manipulate venue in this
case. The panel concluded that the error was harmful
because a reasonable juror could have found it more likely
than not that the defendant’s restraint in Greece really was
in connection with the alleged § 2332g offense.
On plain error review, the panel disposed of the
defendant’s arguments (1) that § 2332g(b)(2)’s assertion of
jurisdiction over him as a United States national does not
apply to a conspiracy charge under § 2332g(c), or (2) that, if
it does as a matter of correct statutory interpretation, then
Congress does not have authority to legislate
4 UNITED STATES V. GHANEM
extraterritorially on the basis of only United States
nationality.
The panel held that the defendant waived his claim based
on the doctrine of specialty by failing to raise it before trial
without good cause.
The panel declined to order dismissal of the § 2332(g)
charge based on the defendant’s due-process challenges.
The panel noted that citizenship alone is a sufficient
connection with the United States to permit the application
of its criminal laws to a citizen’s conduct overseas. Lacking
sufficient briefing, the panel deemed waived on appeal the
defendant’s due-process argument that he “justifiably relied
on” an agreement he made with the Greek government not
to appeal his extradition on the condition that he would be
prosecuted only for the charges for which it surrendered him
to the United States. The panel likewise deemed waived on
appeal the defendant’s argument that the government’s ex
parte request to the Greek government to consent to his
prosecution for violating § 2332g violated due process
because he lacked counsel or an opportunity to be heard.
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP,
San Diego, California, for Defendant-Appellant.
Alexander P. Robbins (argued), Assistant United States
Attorney; L. Ashley Aull, Chief, Criminal Appeals Section;
Nicola T. Hanna, United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
UNITED STATES V. GHANEM 5
OPINION
BOGGS, Circuit Judge:
Rami Ghanem, a Jordanian-born, naturalized United
States citizen, is an international arms dealer. The
Department of Homeland Security captured him in Greece
in an undercover sting operation, and the government
obtained an indictment against him in the Central District of
California in Los Angeles. After his extradition from Athens
to Los Angeles (by way of New York), the government then
brought additional arms-dealing charges against him,
including 18 U.S.C. § 2332g, which carries a 25-year
minimum sentence. Mr. Ghanem pleaded guilty to all but
that one charge, which he tried to a jury. After the jury
convicted him, the district court sentenced him to 30 years
of imprisonment.
But the government tried Mr. Ghanem in the wrong
place. When he landed at John F. Kennedy International
Airport, in custody, venue was laid in the Eastern District of
New York for the § 2332g charge even though the
government had not yet brought it. The government later
asked for an erroneous jury instruction on venue, which the
court gave, over Mr. Ghanem’s objection. Although Mr.
Ghanem had waived his challenge to the indictment for
improper venue by failing to bring it before the pretrial-
motions deadline, under our precedent he was still entitled
to a correct instruction on venue. The error was harmful, and
we must therefore vacate his conviction.
6 UNITED STATES V. GHANEM
I. Background
A. Arrest, Extradition, and Indictment
While living in Egypt, Mr. Ghanem ran a Jordanian
company called Gateway to MENA (short for “Middle East
and Northern Africa”), which dealt in military supplies and
offered what he termed logistics services. His wares
included body armor, a wide variety of weapons both small
and large, ammunition, gadgets for electronic warfare, and
so on. But his trade was not entirely on the up-and-up. He
would smuggle armaments under false customs declarations,
calling them “juice” or “fruits,” and bribe officials for (or
outright forge) the end-user certificates necessary for legal
shipment of weapons.
Eventually, Mr. Ghanem’s dealings came to the attention
of Homeland Security Investigations (HSI). In 2014, an HSI
undercover agent contacted Mr. Ghanem and began
gathering evidence against him through email, Skype chats,
and in-person meetings. In the meantime, in May 2015, a
HSI special agent based in Los Angeles got a warrant to
search Mr. Ghanem’s Gmail account. By August 2015,
Mr. Ghanem had placed an order through the undercover
agent to illicitly export dozens of weapons, thousands of
rounds of ammo, and three night-vision devices from the
United States to Libya. On December 8, 2015, the
undercover agent brought Mr. Ghanem to a warehouse in
Athens, Greece, ostensibly to inspect the shipment as it was
en route to Libya. Having been alerted by the United States,
Greek authorities arrested him at the warehouse. Greek
authorities seized numerous electronic devices from
Mr. Ghanem’s person and hotel room. The United States
government would later take possession of those devices and
examine them forensically.
UNITED STATES V. GHANEM 7
Later that December, Mr. Ghanem was indicted in the
Central District of California, where the shipment of
purported weapons from the undercover agent had
originated. The indictment alleged one count of violating the
Arms Export Control Act (specifically, 22 U.S.C.
§ 2778(b)(2)), one count of smuggling, in violation of
18 U.S.C. § 554, and two counts of money laundering, in
violation of 18 U.S.C. § 1956(a)(2)(A).
In April 2016, Mr. Ghanem was extradited from Greece.
Mr. Ghanem claims that he agreed not to appeal his
extradition on the condition that he reserved his specialty
rights—that is, to be prosecuted only for the charges
specified in his extradition order. On April 25, 2016, the
United States Marshals took him, in custody, by plane from
Greece to JFK Airport in Queens, New York. After changing
planes, he flew to Santa Ana, California. From there, he was
detained in the Central District of California until trial.
On March 24, 2017, the government obtained a
superseding indictment in the Central District of California,
which added three new counts against Mr. Ghanem. (It
obtained from the Greek government an extension of his
extradition order—that is, permission to try him for these
additional offenses beyond those listed in the original order.)
The first new count was for conspiracy to violate the Arms
Export Control Act, in violation of 18 U.S.C. § 371. The
second was an additional substantive count of violating the
Arms Export Control Act (specifically, 22 U.S.C.
§ 2778(b)(1)). And the third was for violating 18 U.S.C.
§ 2332g—the charge at issue on appeal.
Section 2332g, broadly, prohibits illicit dealings in
guided surface-to-air missiles. Subsection (a) lists the
specific banned conduct, subsection (b) specifies five so-
called “jurisdictional” conditions, at least one of which must
8 UNITED STATES V. GHANEM
be met for the conduct in subsection (a) to be criminal. And
subsection (c) provides that “[a]ny person who violates, or
attempts or conspires to violate, subsection (a) . . . shall be
sentenced to a term of imprisonment not less than 25 years
or to imprisonment for life.”
Mr. Ghanem was charged with a conspiracy to violate
subsection (a), and the jurisdictional hook alleged was his
United States citizenship. In particular, he was charged with
trying to procure or offering to sell Igla and Strela surface-
to-air missiles and missile launchers. And from March to
June of 2015, he allegedly sought operators for an Igla
missile system, negotiated these operators’ salaries
(including bonuses for actually shooting down planes), and
procured their travel to Libya.
B. The Proceedings Below
After the superseding indictment, there was extensive
pretrial discovery (including three overseas depositions
presided over by the district judge himself in Israel and
Georgia) as well as several motions. Mr. Ghanem moved for
a bill of particulars as to the § 2332g charge and to dismiss
the indictment for alleged violations of due process—but,
relevant here, he did not move to dismiss the indictment for
improper venue. The district court denied those motions.
After the pretrial-motions deadline, the government
moved the district court to take judicial notice of
Mr. Ghanem’s location at the time of his arraignment on
count 3 of the superseding indictment. The court granted that
motion. Finally, shortly before trial, Mr. Ghanem pleaded
guilty to the other six counts against him, leaving only the
§ 2332g count for trial.
UNITED STATES V. GHANEM 9
After the close of the government’s eight-day case-in-
chief, Mr. Ghanem moved under Federal Rule of Criminal
Procedure 29 for a judgment of acquittal, raising the venue
problem for the first time. The government responded that
Mr. Ghanem had waived his venue objection by failing to
raise it before the pretrial motions deadline under Federal
Rule of Criminal Procedure 12(c). In the alternative, the
government argued that venue was proper under 18 U.S.C.
§ 3238 because Mr. Ghanem was detained in the Central
District of California when he was indicted and arraigned on
the § 2332g charge; thus, it was there that he was first
restrained of his liberty in connection with that offense. The
district court denied the Rule 29 motion without elaborating
on its reasoning.
In the meantime, the parties had been conferring on jury
instructions. The government objected to Mr. Ghanem’s
proposed venue instruction and proposed one of its own. A
few versions later, defense counsel eventually expressed no
objection to the government’s proposed venue instruction,
which read, in relevant part: “The government must also
show by a preponderance of the evidence that defendant was
arrested, or first restrained of his liberty, in connection with
this offense in the Central District of California.” But after
argument on the Rule 29 motion, the government expressed
concern that Mr. Ghanem would argue his venue theory to
the jury. The district court suggested that the government
propose a jury instruction, which it did: “Arrests, restraint or
detention in a foreign country is irrelevant to your
determination of whether venue is appropriate in this
district.”
After the defense’s brief case, the district court heard
argument on the government’s proposed addition to the
venue instruction. The government argued that Mr. Ghanem
10 UNITED STATES V. GHANEM
would mislead the jury by arguing that his arrest in Greece
was in connection with the offense currently on trial.
Mr. Ghanem objected to the instruction, contending that the
government was well aware of any of his dealings in surface-
to-air missiles by the time he was arrested. The district court
found that the defense’s argument would mislead the jury
and agreed to give the government’s revised instruction.
So instructed, the jury returned a unanimous guilty
verdict after several hours of deliberations. Mr. Ghanem
moved for a new trial under Federal Rule of Criminal
Procedure 33 or to dismiss the indictment on several
grounds, including improper venue, constructive
amendment of the indictment, that the 25-year mandatory
minimum sentence was cruel and unusual punishment, and
the court’s lack of jurisdiction under the extradition treaty
between Greece and the United States. The district court
denied these motions, holding that the venue and jurisdiction
arguments were waived as untimely and also ruling against
Mr. Ghanem on the merits.
Convicted of all seven counts, Mr. Ghanem’s provisional
offense level under the Sentencing Guidelines was 43.
During the sentencing hearing, the district court sustained an
objection by Mr. Ghanem, which brought the total offense
level to 40. With a criminal history category of I, his
Guidelines range was 292 to 365 months of imprisonment.
The district court sentenced Mr. Ghanem, within that range,
to 360 months.
This timely appeal followed.
UNITED STATES V. GHANEM 11
II. Venue and Waiver
A. Background Principles
A criminal defendant enjoys the constitutional right to a
trial in the correct place. U.S. Const. art. III, § 2, cl. 3;
amend. VI. Normally that place is the state and district where
the crime was committed. Ibid. But for crimes committed
outside the country, the Constitution vests Congress with the
power to determine the venue for trial. U.S. Const. art. III,
§ 2, cl. 3. In turn, Congress has determined that the trial for
such a crime “shall be in the district in which the offender
. . . is arrested or is first brought.” 18 U.S.C. § 3238.
Neither party disputes that all Mr. Ghanem’s alleged
conduct took place outside the United States, so that § 3238
applies. Rather, Mr. Ghanem contends that he was “arrested”
in Greece and “first brought” to the Eastern District of New
York. Because Greece is, of course, not in the United States,
venue under § 3238 would then lie only in the Eastern
District of New York. Thus, Mr. Ghanem argues, venue was
improper in the Central District of California, and we should
vacate his conviction.
But the government contends that Mr. Ghanem waived
his venue objection. This is because “a motion alleging a
defect in instituting the prosecution, including . . . improper
venue,” must be made before trial if its basis is “then
reasonably available” and it “can be determined without a
trial on the merits.” Fed. R. Crim. P. 12(b)(3)(A)(i). A
motion that does not meet that deadline is untimely, “[b]ut a
court may consider [it] if the [movant] shows good cause.”
Fed. R. Crim. P. 12(c)(3). And we have held that a failure to
timely raise a pretrial objection required by Rule 12, “absent
a showing of good cause,” constitutes a waiver—we will not
12 UNITED STATES V. GHANEM
review the objection, even for plain error. United States v.
Guerrero, 921 F.3d 895, 898 (9th Cir. 2019) (per curiam).
B. Apparency of a Venue Defect
There is good cause for a failure to raise a venue
challenge before trial if no venue defect was “apparent on
the face of the indictment.” United States v. Ruelas-
Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000). In such a
case, the earliest a defendant can raise the issue is in a Rule
29 motion for a judgment of acquittal at the close of the
government’s case-in-chief. A venue objection made then is
therefore timely. Ibid.An indictment does not have an apparent venue defect if
“it allege[s] facts which, if proven, would have sustained
venue” in the district of trial. Ibid. In this analysis, we
consider only the allegations in the indictment, and we take
them as true. United States v. Mendoza, 108 F.3d 1155, 1156
(9th Cir. 1997). Moreover, we must consider venue for each
count separately, even if the same conduct is charged in
multiple counts. See United States v. Corona, 34 F.3d 876,
879 (9th Cir. 1994) (“The court must conduct a separate
venue analysis for the substantive crimes and the conspiracy,
even if the substantive crimes are committed in furtherance
of the conspiracy.”).
Here, a venue defect is apparent from the face of the
indictment. The only mention of the Central District of
California in count 3 of the first superseding indictment is a
statement that Mr. Ghanem “is currently located in the
Central District of California.” No overt act in count 3 is
alleged to have occurred in any particular place, and no other
facts are alleged in that count that would support venue
under any of the venue statutes. See 18 U.S.C. §§ 3232–39;
Fed. R. Crim. P. 18 (“Unless a statute or [the] rules permit
UNITED STATES V. GHANEM 13
otherwise, the government must prosecute an offense in a
district where the offense was committed.”). Because mere
presence in the district at the time of indictment does not
support venue, count 3’s defect was apparent. 1
Lacking good cause, Mr. Ghanem’s first objection to
venue—in his motion for acquittal after the close of the
government’s case—was untimely, and he therefore waived
that venue challenge.
III. The Jury Instruction on Venue
Mr. Ghanem also challenges the propriety of the district
court’s venue instruction—that “[a]rrests, restraint or
detention in a foreign country is irrelevant to [the jury’s]
determination of whether venue is appropriate in this
district.”
1
Judge Boggs, speaking for himself only: I concur somewhat
dubitante. All the acts charged in count 3 of the superseding indictment
were also alleged in count 1, which was alleged to have occurred “within
the Central District of California, and elsewhere” between September 4,
2013, and December 8, 2015. Likewise, count 2 alleged that Mr. Ghanem
“engaged in negotiating and arranging contracts, purchases, sales, and
transfers of defense articles, foreign defense articles, defense services,
and foreign defense services” “within the Central District of California,
and elsewhere” between those same dates. Those articles and services
included Igla and Strela “surface-to-air missile launchers” and “missiles”
as well as “[o]perators,” “[t]echnicians,” and “[t]rainers for Igla surface-
to-air missile launchers.” Those are exactly the articles and services at
issue in count 3. Given the overlap in charged conduct and the
government’s use of the conjunctive “and” in its location allegations in
counts 1 and 2, I am less certain that the venue defect in count 3 is
“apparent.”
14 UNITED STATES V. GHANEM
A. Preservation Below
To preserve a jury-instruction objection, a party “must
inform the court of the specific objection and the grounds for
the objection before the jury retires to deliberate.” Fed. R.
Crim. P. 30(d). Mr. Ghanem did so here—before the jury
was instructed, his counsel objected to the government’s
proposed revision, contending that Mr. Ghanem’s arrest in
Greece was in connection with the surface-to-air missile
charges and therefore he had not been first deprived of his
liberty in California. And he continues to press on appeal the
same argument he made below: that he was not “arrested” in
the Central District of California because he was not first
restrained of his liberty there. Rather, he was arrested in
Greece in connection with the entire arms-trafficking
scheme, including the alleged § 2332g offense, so his
overseas arrest is relevant to the jury’s venue determination.
He therefore preserved that challenge, and we review de
novo whether the instruction correctly stated the law. United
States v. Renzi, 769 F.3d 731, 755 (9th Cir. 2014).
Additionally, according to our precedent, Mr. Ghanem’s
Rule 12 waiver of venue does not preclude his separate jury-
instruction challenge. 2 United States v. Casch, 448 F.3d
1115, 1117–18 (9th Cir. 2006). In Casch, the defendant did
not raise a venue challenge until his objection to a lack of a
“jurisdictional element” in the jury instructions. Casch, No.
2
Several circuits have adopted a contrary rule. See United States v.
Perez, 280 F.3d 318, 334 (3d Cir. 2002) (“An issue that has been waived
because no one has objected to it should not at the same time be ‘in issue’
so as to require a jury instruction.”); see also United States v. Massa,
686 F.2d 526, 530–31 (7th Cir. 1982); United States v. Winship, 724 F.2d
1116, 1125–26 (5th Cir. 1984); United States v. Haire, 371 F.3d 833,
840 (D.C. Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005)
(mem.).
UNITED STATES V. GHANEM 15
05-30270, Brief of Plaintiff-Appellee United States, 2005
WL 4668741, at *29–31 (Dec. 9, 2005). Even though he had
waived his venue challenge under Rule 12, and despite the
government’s argument that waiver applied, ibid., we did not
find waiver of the jury-instruction challenge. Instead, we
proceeded to the merits, and we found the district court’s
failure to instruct the jury on venue to be error, but we
affirmed because the error was harmless. Casch, 448 F.3d
at 1117–18.
B. Where Venue Lay Under § 3238
The parties do not dispute that the conduct charged in
count 3 of the superseding indictment was committed “out
of the jurisdiction of any particular State or district.”
18 U.S.C. § 3238. Thus, the offense must be tried “in the
district in which the offender . . . is arrested or is first
brought.” Ibid. The question becomes: which district or
districts was Mr. Ghanem arrested in or first brought to? The
answer turns on whether Mr. Ghanem’s arrest in Greece was
“in connection with” the § 2332g offense at issue in this
appeal.
1. “First Brought”
The district a defendant is first brought to is the district
into which the defendant first comes “[from outside the
United States’ jurisdiction] while in custody.” United States
v. Liang, 224 F.3d 1057, 1060 (9th Cir. 2000) (alteration in
original) (quoting United States v. Hilger, 867 F.2d 566, 568
(9th Cir. 1989)). The “first brought” portion of § 3238
applies only if the defendant “is returned to the United States
already in custody,” ibid., in connection with the offense at
issue, United States v. Layton, 519 F. Supp. 942, 943 (N.D.
Cal. 1981). Thus, if the defendant is not in custody in
connection with that offense when he enters the United
16 UNITED STATES V. GHANEM
States, this provision does not apply. See United States v.
Erdos, 474 F.2d 157, 160–61 (4th Cir. 1973) (holding that
defendant was not in custody when plane to United States
landed in Boston, hence venue did not lie in Massachusetts
for overseas killing).
The length of time a defendant spends in the district to
which he is first brought does not matter, nor does the
purpose. See Chandler v. United States, 171 F.2d 921, 927,
932–33 (1st Cir. 1948) (holding that defendant was first
brought to Massachusetts after plane transporting him, in
custody, from Canada made emergency landing there);
United States v. Han, 199 F. Supp. 3d 38, 49–50 (D.D.C.
2016) (holding that defendant was first brought to Hawai‘i
after plane transporting him, in custody, from American
Samoa had layover in Honolulu). And flying through a
district’s airspace does not count; only landing there does.
United States v. Lozoya, 982 F.3d 648, 652 (9th Cir. 2020)
(en banc) (“Neither Article III nor the Sixth Amendment
says that a state or district includes airspace, and there is, of
course, no indication that the Framers intended as such.”);
see also Chandler, 171 F.2d at 932–33 (holding that
defendant was not first brought to Maine even though plane
carrying him, in custody, first crossed into United States
airspace there).
2. “Arrested”
The district a defendant is arrested in is the one “where
the defendant is first restrained of his liberty in connection
with the offense charged.” Liang, 224 F.3d at 1061 (quoting
Erdos, 474 F.2d at 160). In contrast to the “first brought”
provision, this portion of § 3238 applies only if the
defendant is already inside a district when first restrained of
liberty in connection with the offense. Kerr v. Shine, 136 F.
61, 65 (9th Cir. 1905) (“[T]he offender is to be tried in the
UNITED STATES V. GHANEM 17
district where he is apprehended; but, if he be taken into
custody where no court has jurisdiction, he shall be tried in
the district into which he is first brought.”); see also United
States v. Townsend, 219 F. 761, 762 (S.D.N.Y. 1915) (“The
difference between ‘brought’ and ‘found’ is the difference
between presence by involuntary and voluntary act.”).
3. “In Connection With”
Here, it is undisputed that Mr. Ghanem was in custody
when brought to the United States from Greece by air. And
it is undisputed that he first landed in the Eastern District of
New York before continuing on to the Central District of
California.
What the parties dispute is whether Mr. Ghanem’s
custody at that time—resulting from his arrest in Greece—
was in connection with the alleged § 2332g offense. If not,
then he would have been arrested for that offense in the
United States, and his arrest in Greece would have indeed
been irrelevant to the jury’s venue determination in the
particular circumstances of this case. On the other hand, if a
jury could have reasonably found that his arrest in Greece
was in connection with the alleged § 2332g offense, then that
finding would mean that he could not have been “arrested”
under § 3238 for that offense in the Central District of
California. Thus, if a jury could reasonably find that
Mr. Ghanem’s arrest in Athens was connected to the alleged
§ 2332g offense, the district court’s instruction that foreign
arrests, restraint, or detention was irrelevant to the jury’s
determination would have misstated the law.
a. Precedent and Other Case Law
The precise contours of when a deprivation of liberty is
in connection with an offense for the purposes of § 3238
18 UNITED STATES V. GHANEM
have not been defined in this circuit. We therefore survey
our cases and those of our sister circuits to ascertain these
contours.
We start with Liang, which is binding on us. There, at
the time the defendant was deprived of his liberty, his vessel
had been interdicted and boarded—and he was taken into
custody for suspected alien-smuggling—within the District
of Guam. 224 F.3d at 1061. The government then took him
to the District of the Northern Mariana Islands, where he was
indicted several months later with three alien-smuggling
offenses. Ibid. But because the defendant had been first
detained in Guam, within the territory of the United States,
we held that, for purposes of § 3238, he had been arrested
there, not in the Northern Mariana Islands. Ibid. We
therefore ordered his indictment dismissed for improper
venue. Ibid.
In Liang, we quoted approvingly an out-of-circuit case,
United States v. Provoo, 215 F.2d 531 (2d Cir. 1954).
Distinctive in Provoo is that the government was already
investigating treason allegations, with which the defendant
was ultimately charged, even though the military was
detaining him for alleged sodomy. The Army detained him
for four months in Maryland before dropping the sodomy
charge and taking the defendant to New York, where he was
discharged from the service, handed over to the FBI, and
charged with treason in the civilian courts. 215 F.2d at 538.
The Second Circuit found that the Army’s four-month
detention of the defendant at the behest of the Justice
Department was effectively an arrest for treason in
Maryland. Ibid. Thus, venue under § 3238 did not lie in New
York, and the treason conviction was vacated.
We also looked in Liang to another Second Circuit case,
United States v. Catino, 735 F.2d 718 (2d Cir. 1984). There,
UNITED STATES V. GHANEM 19
the defendant had been convicted of drug charges in the
Southern District of New York but did not report for the start
of his sentence, instead obtaining a passport under a false
name and using it to travel to and from France. Id. at 719–
20. French police eventually arrested him for heroin
trafficking, and he was removed from France after serving a
prison term there. Id. at 720–21. Upon his arrival in the
Eastern District of New York, federal agents arrested him for
additional drug charges based on his conduct while a
fugitive. Id. at 721. But those charges were dropped, and he
was taken to the Southern District of New York to begin
serving his outstanding sentence on drug charges. Ibid.While in custody in the Southern District, he was
indicted for the domestic bail-jumping offense (for failing to
report for the sentence he was currently serving). Ibid.Before his trial on that charge, a superseding indictment
added a count of using a passport issued under a false name
while in France. Ibid. The defendant moved to dismiss the
superseding indictment, arguing that venue for the charge
lay exclusively in the Eastern District, where he was “first
brought” under § 3238. Id. at 723–24. The Second Circuit
rejected this argument and held that the defendant’s arrest in
the Eastern District was for the subsequent drug-trafficking
charges, not the overseas passport charge. See id. at 724.
Rather, because the passport charge was added more than
two years later for substantively different conduct than what
led to his arrest upon returning from France, his first restraint
of liberty in connection with the passport charge was
actually in the Southern District, where he was serving his
existing sentence when the passport charge was brought.
Ibid. (“We need not concern ourselves with the term ‘first
brought,’ as that applies only in situations where the offender
is returned to the United States already in custody.”).
20 UNITED STATES V. GHANEM
In United States v. Holmes, 670 F.3d 586 (4th Cir. 2012),
the Fourth Circuit took what it called an “offense-specific”
approach, which it contrasted to an “indictment-specific”
approach. Id. at 594–96. There, the defendant had been
arrested in the Eastern District of Virginia on charges of
sexual assault against his stepdaughter at an air force base in
Japan, but the indictment was dismissed because he was still
on active duty in the military, prohibiting his prosecution by
civilian authorities. Id. at 589 & n.1. After his discharge from
the Air Force, the government refiled the same charges in the
same district, and the defendant was arrested in North
Carolina and taken to the Eastern District of Virginia. Id.
at 589. That indictment was dismissed—incorrectly, as it
would later turn out—for lack of venue in the Eastern
District of Virginia, and the government refiled the same
charges hours later in that same district now that the
defendant was present there in custody. Id. at 590.
The defendant appealed his eventual conviction, arguing
that North Carolina was his place of first arrest on the
charges because his initial arrest in Virginia was void
because he was still in the military. Id. at 593. In answering
the question of where the defendant had been first arrested,
the Fourth Circuit held that “the relevant inquiry is not the
district of arrest for a specific indictment in a case’s
procedural history, but rather the district of arrest for th[e]
specific offense, even if there is a subsequent dismissal of
the original indictment or filing of a subsequent indictment
regarding that offense.” Id. at 595. It found this analysis to
“comport[] with the purpose of establishing venue”—
allowing it “to be definitively determined based on the static
location of where a defendant is determined to be ‘first
arrested or brought’ with respect to the offense.” Ibid.Otherwise there would need to be “reevaluation of [venue]
at each stage of any subsequent procedural developments as
UNITED STATES V. GHANEM 21
with subsequent or superseding indictments for the same
offense.” Ibid. Following this approach, the Fourth Circuit
held that, because the defendant had initially been arrested
in the Eastern District of Virginia, even though that arrest
was improper, venue there was proper because the third
indictment contained the same two charges as the first. Id.at 596–97.
The Fifth Circuit took a different, arguably “indictment-
specific” approach in United States v. Wharton, 320 F.3d
526 (5th Cir. 2003). There, the defendant was arrested in the
Middle District of Florida after prosecutors had filed a
complaint in the Western District of Louisiana for
conspiracy to murder his wife in Haiti and insurance-fraud
charges based on that murder. Id. at 536. He was taken to
Louisiana; while detained there, the government obtained a
superseding indictment charging him with the foreign
murder of his wife. Ibid. Looking to Catino as analogous, the
Fifth Circuit held that the defendant’s later indictment and
arrest on murder while detained in the Western District of
Louisiana was sufficient to lay venue for murder there, even
though his previous arrest in Florida had been for conspiracy
to murder the same victim. Id. at 536–37.
We also note a well-reasoned district court case, United
States v. Hong Vo, 978 F. Supp. 2d 49 (D.D.C. 2013). There,
the court held that, “for venue to lie in a particular district
under the first clause of section 3238, a defendant must have
been arrested or first brought in [sic] that district for the same
criminal conduct as that which ultimately gives rise to the
offenses charged, even if the charges are filed elsewhere.”
Id. at 60 (emphases added). The principal defendant had
been arrested in Colorado on one count of conspiracy to
commit bribery and visa fraud overseas. Id. at 51. Later, she
was taken to the District of Columbia and indicted on
22 UNITED STATES V. GHANEM
substantive counts of bribery and visa fraud. Id. at 52. The
court dismissed the District of Columbia indictment, holding
that the defendant’s arrest in Colorado was in connection
with the bribery and visa-fraud charges because the object of
the conspiracy for which she had been arrested there was to
commit those offenses. Id. at 62. Considering much the same
body of case law as we do now, the district court expressly
rejected Wharton, noting that the Fifth Circuit “did not
explain why, when the defendant was arrested in Florida, he
was not restrained ‘in connection with’ the foreign murder
charge given the close factual link” to the conspiracy and
insurance-fraud charges. Id. at 61. The district court further
highlighted that “the link . . . between the charges at issue
and the defendant’s arrest [was] stronger than that in
Wharton.” Ibid.A second defendant in Hong Vo had also been arrested
in Colorado as a material witness. Id. at 51. When
cooperation negotiations with the government broke down a
few weeks later, that defendant was charged with conspiracy
and later charged in the District of Columbia with bribery
and visa fraud as a coconspirator. Id. at 51–52. The district
court held that this defendant had also been arrested in
Colorado in connection with those crimes, even though at
the moment of arrest, the defendant had not been charged
with any offense. Id. at 64. The court based this ruling on the
fact that the government had considered the second
defendant “to be a coconspirator and a target of the
investigation.” Ibid.b. Extracting Relevant Considerations
From our precedent and other case law, we can identify
several factors indicating when an arrest meets the important
condition of being in connection with a later-added offense.
UNITED STATES V. GHANEM 23
i. Centrality of a Later-Added Charge
to the Reason for Arrest
First, if the later-charged offense is central to the reason
for the initial arrest, then that arrest is in connection with that
later-charged offense. We see this principle used in our own
precedent. In Liang, the defendant was detained in Guam
because government agents found him smuggling people
into the United States, and the charges later brought in the
Northern Mariana Islands were for three counts of alien-
smuggling. 224 F.3d at 1061. Thus, his initial arrest was
connected to those later charges.
Likewise in other circuits. In Holmes, the defendant was
first arrested for abusing his stepdaughter overseas, and the
charges in the third indictment were for the same conduct.
670 F.3d at 588, 590. The Fourth Circuit held that the
defendant’s initial arrest was in connection with the offenses
charged in the third indictment. Id. at 596. And in the Hong
Vo district-court case within the D.C. Circuit, we see the
same principle. The court there recognized the inherent
connection between an arrest for conspiracy and later-added
charges for the substantive offenses underlying that
conspiracy. See 978 F. Supp. 2d at 60 (“[T]he required
connection is present because Hong Vo’s initial arrest was
very closely related to the bribery and visa fraud counts: she
was arrested on a charge of conspiracy to violate certain
statutes and subsequently charged in a superseding
indictment with overt acts violating those same statutes, all
based on the same criminal scheme.”).
In contrast, if the later-charged offense is less central to
the reason for the arrest, then the arrest is less likely to be in
connection with the later-charged offense. Thus, in Catino,
where the reason for the defendant’s initial arrest (drug
importation) differed substantially from the defendant’s later
24 UNITED STATES V. GHANEM
charge (passport fraud), venue was found to lie where the
defendant was being detained once the later charge was
brought. See 735 F.2d at 723–24. Of course, it is true that the
passport fraud in Catino was related to the drug-importation
charge—the defendant there used the fraudulently obtained
passport to travel in and out of France while smuggling
heroin, Id. at 720. But “connections, like relations, ‘stop
nowhere.’” Maracich v. Spears, 570 U.S. 48, 59 (2013)
(quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)). The key is
the centrality of the later-charged offenses to the initial
arrest. The passport fraud with which Mr. Catino was later
charged was not at the heart of the ongoing heroin smuggling
for which he was initially arrested at the airport.
The government points to Wharton in trying to show that
the centrality of the later-added charge to the reason for
arrest is immaterial. But, like the Hong Vo court, we disagree
with the Wharton panel’s reasoning. The plot to murder
Mr. Wharton’s wife was central to the insurance-fraud
scheme—indeed, the initial indictment charged the
defendant with conspiracy to kill his wife in Haiti.
Indictment, United States v. Wharton, No. 5:00-cr-50066-
DEW-RSP (W.D. La. Sept. 25, 2000), Dkt. No. 1. And the
foreign-murder charge was not brought with the initial
indictment because the Attorney General had not yet
authorized it. Minute Entry, Wharton, No. 5:00-cr-50066-
DEW-RSP (W.D. La. Nov. 2, 2000), Dkt. No. 22. We cannot
accept that an arrest for conspiracy to kill a person is
unrelated to a later-added substantive charge of killing that
person. 3
3
Nevertheless, we acknowledge that Wharton’s outcome was likely
correct because the defendant had apparently waived his venue
UNITED STATES V. GHANEM 25
ii. Lapse of Time Between the Arrest
and a Later-Added Charge
Besides the centrality of the conduct charged to the
stated reason for arrest, another principle we may garner
from the case law is that the length of time between the arrest
and a later-added charge can indicate how connected the
charge is to the arrest. A short gap often reflects a close
connection between the initial arrest and later charge. See
Liang, 224 F.3d at 1058 (less than two months between
arrest and indictment); Holmes, 670 F.3d at 589–90 (seven
months between first and second indictments); Hong Vo,
978 F. Supp. 2d at 51–52 (just over one month between
arrests in Colorado and indictment in D.C.). But see
Wharton, 320 F.3d at 536 (five months between arrest in
Florida and superseding indictment adding murder charge in
Louisiana). A long span of time tends to indicate the
opposite. See Catino, 735 F.2d at 721, 724 (over two years
between initial arrest for drug charges and later indictment
for passport fraud; defendant still in custody for previously
imposed prison sentence independent of either passport or
new drug charges, not held on pretext).
iii. Government Conduct
The substantive and temporal relationships between the
arrest and the later-charged offense are not all that matters.
The court must still inquire into the government’s conduct,
which may indicate the purpose of the arrest. For example,
in Provoo, the Army kept the defendant in custody
nominally for sodomy, only to drop that charge and turn him
over to civil authorities in a different district for treason
challenge—the Fifth Circuit follows a similar, if not identical, rule to
ours on the waiver of venue. See Wharton, 320 F.3d at 537 n.9.
26 UNITED STATES V. GHANEM
allegations. Even though the alleged sodomy had no
substantive relationship with the treason allegations, the
Second Circuit held that it could not “blind [its] eyes to the
fact that the real purpose in bringing [the defendant] to New
York was to meet the wish of the Department of Justice to
have him tried for treason under the indictment subsequently
filed [t]here.” 215 F.2d at 538.
Thus, evidence that a restraint of liberty is in connection
with later-charged offenses includes active government
investigation for those offenses at the time of the initial
arrest. See ibid.; accord Catino, 735 F.2d at 720–21
(discussing the government’s extradition request based on
charges of importing heroin and conspiracy to import heroin,
not passport violations); see also Hong Vo, 978 F. Supp. 2d
at 64. Contra Wharton, 320 F.3d at 536–37 (holding that
Florida arrest for insurance fraud and conspiracy to murder
was unconnected to later substantive murder charge). Such
evidence would also include continuing to detain the
defendant on the offense of arrest despite unjustifiably
delaying proceedings on that crime. See Provoo, 215 F.2d
at 538. And the government’s deliberate attempts to
manipulate venue, as in Provoo, should draw great
skepticism toward its claim that an arrest and later-added
charge are unrelated. See ibid.c. The Government’s Contrary Test
The government urges a different, bright-line rule. Under
its test, Mr. Ghanem was first arrested for the § 2332g
offense because he was in the Central District of California
when the charge “came into being.” But that test for whether
an arrest is “in connection with” an offense is too narrow.
And it comes with several problems.
UNITED STATES V. GHANEM 27
First, it is foreclosed by our precedent. If the
government’s test were right, then Liang would have come
out the other way. The charge there had not “come into
being” until the defendant was in the District of the Northern
Mariana Islands. 224 F.3d at 1058. Under the government’s
rule, venue would have lain there. But it did not—we held
that the defendant was arrested in the District of Guam,
where he was restrained of his liberty before he had been
charged. Id. at 1062.
Second, the government has pointed to no case—in
circuit or out—supporting the proposition that the
government can bring a person into the country, already in
custody on an offense committed abroad, and then select
venue afterward using a superseding indictment for a related
foreign crime. Even Wharton, to the extent that it used a test
like the government’s, does not support this proposition. The
defendant there was not arrested until he was already inside
the United States. 320 F.3d at 530–31.
Third, the government’s test would violate the
constitutional allocation of the power to set venue. The
Constitution gives Congress primacy in selecting venue for
crimes committed overseas. U.S. Const. art. III, § 2, cl. 3.
But a rule that the defendant is arrested for such a crime only
in the district where he is detained when the government
chooses to add a charge—such a rule would give the
government unchecked power to select venue. It could lay
proper venue simply by taking an in-custody defendant to
the district of its choice and obtaining a new indictment
there.
It is no response that § 3238 already gives the
government considerable discretion in picking venue. True,
the government can bring an out-of-country defendant to any
district of its choice by flying him directly there while in
28 UNITED STATES V. GHANEM
custody, and venue would lie in that district. But the
government cannot change its mind afterward, and its choice
is constrained by practical and logistical concerns. And,
more fundamentally, the point is that the government “must
take the statute as [it] finds it,” not “whittle away” its
provisions “by a construction based on formalism rather than
substance.” Liang, 224 F.3d at 1061–62 (quoting Provoo,
215 F.2d at 539).
The government’s “in connection with” test would do
just that. That test would let the government take a
defendant, already in custody in the Central District of
California (whether brought there from outside the country
or initially found and arrested there), to (say) Guam or
Alaska, bring a superseding indictment there, and thereby
lay venue. The constitutional purpose of our venue rules is
to prevent exactly that from happening. Indeed, that was one
of our grievances against George III—“For transporting us
beyond seas to be tried for pretended offences.” The
Declaration of Independence, para. 21 (U.S. 1776). A bright-
line rule allowing such a result is unconstitutional.
d. Application
We turn now to the crux of the matter: whether
Mr. Ghanem’s arrest in Greece was in connection with the
alleged § 2332g offense. We hold that a jury could have
reasonably found that it was, even under the preponderance
standard to which the government must prove venue, United
States v. Moran-Garcia, 966 F.3d 966, 969 (9th Cir. 2020).
First, the government itself has conceded the alleged
§ 2332g offense to be extremely similar to the conduct for
which Mr. Ghanem was initially arrested. True, it was
neither the exact charge alleged in the original indictment, as
was the case in Holmes, nor a substantive count underlying
UNITED STATES V. GHANEM 29
an inchoate offense, as in Hong Vo. But in arguing to admit
Mr. Ghanem’s plea colloquy on the other charges as
evidence at trial, the government characterized the counts to
which Mr. Ghanem had pleaded as “too similar in time and
too similar in nature” to be excluded under Federal Rule of
Evidence 403. Dist. Ct. Dkt. No. 427, at 14. It further
described Mr. Ghanem as “engaged in overlapping
conspiracies during a very discrete period of time, between
the middle of 2014 on through 2015. During those
conspiracies he engaged in the same type of conduct that he
is alleged to have been committed [sic] with respect to” the
§ 2332g count. Id. at 14–15. What is more, the government
filed a motion to join the original and superseding
indictments, arguing:
All of the charges in this case relate to
defendant’s work as an illicit broker of
weapons, munitions and related services, and
all are connected with defendant’s common
scheme of exporting, transferring, and
brokering defense articles and defense
services in violation of U.S. criminal law.
There is a substantial overlap of evidence on
the charges in each indictment, and of
persons with whom defendant conspired to
commit the offenses alleged in each
indictment.
Dist. Ct. Dkt. No. 170, at 6. With these concessions, we are
inclined to think that the alleged § 2332g offense is
sufficiently central to the conduct for which Mr. Ghanem
was initially arrested in Athens.
Second, the circumstances surrounding the arrest
strongly suggest that the government was actively
30 UNITED STATES V. GHANEM
investigating Mr. Ghanem’s alleged surface-to-air-missile
activities in the months before his arrest in Greece. 4
Evidence of Mr. Ghanem’s alleged dealings in Igla and
Strela missiles came to the government through several
sources. In March 2015, an undercover government agent
had a conversation with Mr. Ghanem involving Igla missiles.
In May 2015, an investigator with the Department of
Homeland Security obtained a warrant to search Mr.
Ghanem’s Gmail account. From that search, he was able to
identify several emails that the government later offered as
evidence against Mr. Ghanem.
4
The government’s brief denies this, saying that “the evidence that
defendant conspired to sell anti-aircraft missiles to Libyans was not
discovered until after defendant had been arrested in the undercover
operation. (GER 259, 292, 656, 687–688.)” Gov’t Br. 36. (“GER” refers
to “Government Excerpts of Record.”) As the further discussion in this
section will demonstrate, that proposition is inaccurate.
Moreover, the pages that the government’s brief cites do not refute
our finding. GER 259 is a page of trial transcript. There, HSI Special
Agent Peterson describes government trial exhibit 201 as an email “sent
from the defendant’s gmail account . . . dated May 14, 2016” (emphasis
added). But that is either a transcription error or an accurate transcription
of the witness’s factual error. The government submitted a copy of
exhibit 201 along with its brief in this court. The exhibit plainly states
“Sent: Tuesday, May 6, 2014 1:52 AM.” (emphasis added). Also, as the
government acknowledged in its brief, Mr. Ghanem had already been
arrested in December 2015. It seems unlikely that in 2016 he still had
access to his Gmail account from a California jail cell.
The other GER citations for the government’s proposition refer to
devices seized from Mr. Ghanem at his arrest. But the fact that the
government found evidence on these devices does not negate that it had
access to Mr. Ghanem’s Gmail account months before the arrest.
UNITED STATES V. GHANEM 31
For example, government trial exhibit 201 was an email
from Mr. Ghanem, sent in May 2014, with a PDF attachment
advertising his company. The attachment offered to manage
“[a]ntiaircraft missile launching, artillery and antiaircraft
systems” among other services. And alongside more modest
wares such as metal detectors, gelatinized dynamite, and
self-propelled Howitzers, the attachment specifically
advertised a “9M-32M STRELA 2M Portable Anti-aircraft
Missile System,” a “9M-36 STRELA 3 Portable Anti-
aircraft Missile System,” a “9M-310 IGLA 1E Portable
Anti-aircraft Missile System,” and a “Set of Control
equipment and Launch modules for the IGLA-type missile.”
The government entered into evidence several other
emails from Mr. Ghanem, sent in 2013 and 2014, concerning
transactions involving Igla and Strela missiles. Not to
mention emails either sent or received by Mr. Ghanem in
March and April 2015 discussing the specific Igla-operator
transaction charged in count 3 of the superseding indictment.
Overall, the record makes clear that the government was
aware of and investigating Mr. Ghanem’s alleged missile
transactions well before his arrest in Greece.
Given that active investigation, the government’s one-
year delay between Mr. Ghanem’s arrest and the later
indictment bringing the § 2332g charge does not
significantly diminish the connection between the two. The
government continued its investigation after the arrest—it
performed a forensic analysis of the devices seized from
Mr. Ghanem by the Greek authorities, and the same HSI
special agent got another warrant to access Mr. Ghanem’s
Gmail account in September 2016. The government used
that investigation time to bolster its § 2332g charge. In fact,
emails from Mr. Ghanem’s Gmail account from later than
May 2015 were introduced against him at trial regarding the
32 UNITED STATES V. GHANEM
Igla-operator transaction. So, even though it took somewhat
longer for the government to bring the § 2332g charge than
in many of the cases we surveyed above, the arrest and
offense remain connected.
Third, the government also appears to have been aware
of its venue problem. Count 3 of the superseding indictment
expressly tried to tie venue to Mr. Ghanem’s presence in the
Central District of California at the time of indictment. And
the government’s inaccurate statement of the record on
appeal, noted in the footnote above, further suggests its
awareness of the potential defect in venue. Taken together,
these facts all suggest that the government deliberately took
advantage of its theory of venue to bring the § 2332g charge
in the wrong district. The government’s claim—that the
arrest and later-added charge were unrelated—should
therefore be viewed with great skepticism.
Thus, because (1) the government has conceded in the
district court that the conduct for which Mr. Ghanem was
arrested was very similar to that for which he was charged in
count 3 of the superseding indictment, (2) government
agents were actively investigating Mr. Ghanem at the time
of his arrest for the conduct that would later be the basis of
that count, and (3) the facts support a view that the
government tried to manipulate venue in this case, we hold
that the jury could have reasonably found it more likely than
not that Mr. Ghanem’s arrest in Greece was connected to his
alleged violation of § 2332g. Thus, the district court’s
instruction—that foreign arrests, restraint, or detention were
irrelevant to the jury’s venue determination—was erroneous.
C. Harmfulness
Having found erroneous the instruction directing the jury
to disregard foreign arrests, we now determine whether that
UNITED STATES V. GHANEM 33
error was harmful. United States v. Kleinman, 880 F.3d
1020, 1034 (9th Cir. 2017). It was.
Because the right to trial in the proper venue is
constitutional, we deem an erroneous venue instruction
harmful unless the government shows beyond a reasonable
doubt that the error was harmless. See id. at 1034–35. That
is, the government must show that there was no “reasonable
possibility that the error materially affected the verdict.”
United States v. Valle-Valdez, 554 F.2d 911, 914–15 (9th
Cir. 1977); Chapman v. California, 386 U.S. 18, 23–24
(1967).
If the court had not given the erroneous venue
instruction, there is a reasonable likelihood that the jury may
have acquitted Mr. Ghanem. Without the instruction,
Mr. Ghanem would have been able to argue that the first
restraint of his liberty in connection with the alleged
violation of § 2332g was in Athens, not Los Angeles. Such
a finding would preclude a finding that he was first arrested
for the offense in the Central District of California, refuting
the government’s venue theory. And, as we just held, a
reasonable juror could have found it more likely than not that
his restraint in Greece really was in connection with the
alleged § 2332g offense. That is enough to say that the error
was harmful.
D. Some Remarks
We recognize the peculiarity of this result. An acquittal
based on venue—to which jeopardy would attach—would
have been a reasonable jury verdict (assuming proper
instructions), but Mr. Ghanem was not entitled to a dismissal
of the indictment under a Rule 29 motion. That strangeness
arises from this case’s particular legal posture. Mr. Ghanem
waived his venue challenge because it was untimely, so he
34 UNITED STATES V. GHANEM
could not ask the district court to “take the venue issue from
the jury and determine it as a matter of law,” as was done in
United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir.
2012). But, as noted above, our precedent entitles a
defendant, even one who has waived venue by untimeliness,
to a correct jury instruction on the question. See Casch,
448 F.3d at 1117–18.
In future cases with similarly muddled postures, a district
court might consider using a special-verdict form requiring
a venue finding separate from substantive guilt. That would
reduce a defendant’s incentive to sandbag a venue defect by
failing to raise the issue pretrial but then attempting to win
an acquittal by later requesting a venue instruction.
IV. Other Claims on Appeal
We now dispose of Mr. Ghanem’s remaining claims. 5
A. Extraterritoriality
Mr. Ghanem argues that § 2332g(b)(2)’s assertion of
jurisdiction over him as a United States national does not
apply to a conspiracy charge under § 2332g(c) or that, if it
does as a matter of correct statutory interpretation, then
Congress does not have authority to legislate
extraterritorially on the basis of only United States
nationality. He did not preserve these claims below, so we
5
We note that we need not consider his other jury-instruction
challenges. The most relief he could get on those grounds is vacatur of
his conviction, which we already grant because of the erroneous venue
instruction.
UNITED STATES V. GHANEM 35
review them for plain error. 6 United States v. Lindsay,
931 F.3d 852, 864 (9th Cir. 2019). To be plain, an error must
be “clear” or “obvious.” United States v. Olano, 507 U.S.
725, 734 (1993). It cannot be plain if “there is no controlling
authority on point and where the most closely analogous
precedent leads to conflicting results.” United States v.
Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011)
(quoting United States v. Charles, 581 F.3d 927, 933–34 (9th
Cir. 2009)).
The statute is clear that conduct listed in subsection (a)
by a United States national outside of the United States
violates § 2332g(a) and that a conspiracy to violate
§ 2332g(a) is punishable as provided in § 2332g(c)(1). Thus,
a conspiracy to cause a United States national to perform
conduct listed in subsection (a) outside the United States is
punishable under subsection (c)(1). Here, Mr. Ghanem is a
United States national, and the alleged conspiracy’s object
was for Mr. Ghanem, among others, to perform precisely the
conduct listed in subsection (a). Thus, count 3 of the
6
Mr. Ghanem is incorrect in asserting that these claims
automatically receive de novo review because they are “jurisdictional”
and in asserting that his pretrial motion to dismiss the indictment
preserved the issues. First, although the elements of § 2332g(b) are
styled “jurisdictional,” extraterritoriality is not a question of subject-
matter jurisdiction—so long as he is charged with a federal crime, the
district court has subject-matter jurisdiction to hear his case, whether or
not the statute defining the crime was constitutionally enacted. 18 U.S.C.
§ 3231. So, unlike a dispute over subject-matter jurisdiction,
Mr. Ghanem’s extraterritoriality claims cannot be raised at every point
in the proceedings. Second, his motion below did not contain the
statutory and constitutional claims now raised—it asserted due-process
claims based on the Fifth Amendment. So the statutory and constitutional
claims were not preserved.
36 UNITED STATES V. GHANEM
superseding indictment falls squarely within the scope of
§ 2332g(c)(1).
Mr. Ghanem advances the canon of constitutional
avoidance to avoid this outcome, but that canon “comes into
play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than
one construction.” Nielsen v. Preap, 139 S. Ct. 954, 972
(2019) (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 842
(2018)). Because the statute is unambiguous, we do not
resort to the canon.
As for the argument that Congress does not have the
constitutional authority to criminalize such conduct, the
parties have provided no controlling authority on point, and
the most closely analogous precedent is at least conflicting,
if not mostly against Mr. Ghanem. See, e.g., United States v.
Clark, 435 F.3d 1100, 1114 (9th Cir. 2006) (upholding
criminalization of foreign commercial sex acts with minors
by United States nationals under Foreign Commerce
Clause), superseded on other grounds by statute as stated in
United States v. Pepe, 895 F.3d 679 (9th Cir. 2018); Lindsay,
931 F.3d at 862 (holding the same for foreign
noncommercial sex acts with minors by United States
nationals but citing the “different outcomes” on the question
throughout the country). Thus, even if Congress could not
criminalize Mr. Ghanem’s alleged conduct here, the error
below would not be plain.
B. The Doctrine of Specialty
As with his venue claim, Mr. Ghanem waived his claim
based on the doctrine of specialty by failing to raise it before
trial without good cause. Fed. R. Crim. P. 12(b)(3)(A), (c),
(e); United States v. Anderson, 472 F.3d 662, 668–70 (9th
Cir. 2006). The pretrial motion he cites as preserving his
UNITED STATES V. GHANEM 37
personal-jurisdiction challenge instead asserted a due-
process claim. And his argument that the doctrine of
specialty is a “jurisdictional” challenge that can be raised at
any time under Rule 12(b)(2) is mistaken. Rule 12(b)(2) is
limited to challenges based on subject-matter jurisdiction,
not personal jurisdiction as the doctrine-of-specialty claim
is. See Anderson, 472 F.3d at 668; see also United States v.
Isaac Marquez, 594 F.3d 855, 858–60 (11th Cir. 2010). Last,
neither United States v. Liu, 731 F.3d 982 (9th Cir. 2013),
nor Anderson supports a finding of good cause here. Liu was
not concerned with Rule 12 waiver. And Anderson involved
a pro se defendant who had not received a copy of his
extradition order until appeal, 472 F.3d at 670, in contrast
with Mr. Ghanem, who is represented by counsel and
received a copy of his extradition order well before trial.
C. Due Process
Mr. Ghanem contends that due process and fundamental
fairness require the dismissal of count 3 of the superseding
indictment. He preserved this claim below, so we review it
de novo. United States v. Morris, 633 F.3d 885, 888 (9th Cir.
2011) (per curiam).
Mr. Ghanem is correct, of course, that a prosecution of
extraterritorial conduct must provide due process. U.S.
Const. amend. V. We have previously held that there must
be a sufficient connection between the defendant and the
United States that applying a criminal law to his
extraterritorial conduct “would not be arbitrary or
fundamentally unfair.” United States v. Davis, 905 F.2d 245,
248–49 (9th Cir. 1990). He urges that the only connection
between him and the United States for purposes of § 2332g
was his status as a naturalized citizen, and he contends that
this connection is too weak to support due process.
38 UNITED STATES V. GHANEM
We have already rejected that argument. Citizenship
alone is a sufficient connection with the United States to
permit the application of its criminal laws to a citizen’s
conduct overseas. Clark, 435 F.3d at 1108–09.
Mr. Ghanem also argues that he “justifiably relied on”
an agreement he made with the Greek government not to
appeal his extradition on the condition that he would be
prosecuted only for the charges for which it surrendered him
to the United States. Because the initial charges were for
lesser crimes with Guidelines ranges of 78 to 97 months, he
contends that the government’s later addition of the § 2332g
charge, with a potential Guidelines range of life
imprisonment, violated his reliance interest in the agreement
not to challenge extradition. The government responds that
the Greek government later consented to Mr. Ghanem’s
prosecution for this offense.
Mr. Ghanem did not raise this argument in his pretrial
motion to dismiss for due-process violations, and the
government claims that it is waived. Despite the Supreme
Court’s pronouncement that “[o]nce a federal claim is
properly presented, a party can make any argument in
support of that claim; parties are not limited to the precise
arguments they made below,” Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 379 (1995) (alteration in
original) (quoting Yee v. Escondido, 503 U.S. 519, 534
(1992)), our precedents are in apparent conflict over whether
a particular argument supporting a claim can be waived. 7
7
Compare Guerrero, 921 F.3d at 898 (“Rule 12(c)(3)’s good-cause
standard continues to apply when . . . the defendant attempts to raise new
theories on appeal in support of a motion to suppress.”), and United
States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per curiam)
UNITED STATES V. GHANEM 39
But we need not resolve that apparent conflict here
because even if Mr. Ghanem preserved his argument, he
provides no authority to support its merits. He cites only two
cases, Santobello v. New York, 404 U.S. 257 (1971) (sans
pincite), and United States v. Shapiro, 879 F.2d 468, 470–72
(9th Cir. 1989). These cases concern only whether the
government may renege on a plea agreement with a
defendant, not the due-process implications of the
government’s failure to abide by a foreign country’s bargain.
Nor does United States v. Barona, 56 F.3d 1087, 1091 (9th
Cir. 1995), cited in Mr. Ghanem’s reply brief, bear on this
question—Barona was about searches and seizures in
foreign countries and whether they “shock the conscience”
or fail to comply with foreign law. Lacking sufficient
briefing on this due-process argument, we deem it waived on
appeal and do not pass on its merits.
We likewise deem Mr. Ghanem’s final due-process
argument waived on appeal. He argues that the
government’s ex parte request to the Greek government to
consent to his prosecution for violating § 2332g violated due
process because he lacked counsel or an opportunity to be
heard. But he cites only Barona, 56 F.3d at 1091, and United
States v. Hamilton, 391 F.3d 1066, 1069–71 (9th Cir. 2004),
in support. Neither case says anything about whether a
criminal defendant is entitled to counsel or to notice of or an
(“Just as a failure to file a timely motion to suppress evidence constitutes
a waiver, so too does a failure to raise a particular ground in support of
a motion to suppress.”), with United States v. Walton, 881 F.3d 768, 771
(9th Cir. 2018) (reviewing de novo a sentencing claim for which the
defendant presented a different argument on appeal from the one made
in the district court); United States v. Studhorse, 883 F.3d 1198, 1203 n.3
(9th Cir. 2018) (same), and United States v. Pallares-Galan, 359 F.3d
1088, 1095 (9th Cir. 2004) (reviewing de novo denial of motion to
dismiss indictment despite defendant’s new argument on appeal).
40 UNITED STATES V. GHANEM
opportunity to be heard in government interactions with
foreign countries.
We therefore decline to dismiss the § 2332g charge for a
violation of due process.
V. Conclusion
We vacate Mr. Ghanem’s conviction on count 3 of the
superseding indictment, vacate his sentence, and remand for
resentencing and further proceedings consistent with this
opinion.
VACATED and REMANDED.