United States v. Cesar Ubaldo , 859 F.3d 690 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50093
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00037-RGK-2
CESAR PAOLO UBALDO,
AKA Arvi, AKA Cesar Paolo OPINION
Inciong Ubaldo,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted August 3, 2016
Pasadena, California
Filed June 9, 2017
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Rawlinson
2 UNITED STATES V. UBALDO
SUMMARY*
Criminal Law
The panel affirmed Cesar Ubaldo’s conviction for
illegally importing weapons into the United States in
violation of 18 U.S.C. §§ 371, 922(l), 924(a)(1)(C), and 22
U.S.C. § 2778(b)(2).
The panel held that the district court correctly determined
that, considering the language and history of the legislation,
the weapons importation statutes, §§ 922(l) and 2778(b)(2),
apply extraterritorially.
Applying the aiding and abetting statute to the
defendants’ conduct, the panel held that the district court
properly rejected the challenge to the sufficiency of the
evidence to support the jury’s verdict.
The panel held that the district court properly denied, after
conducting a Franks hearing, Ubaldo’s suppression motion in
which he claimed that the search warrant affidavit contained
false and misleading statements.
Rejecting Ubaldo’s contention that the district court
should have dismissed the indictment due to an agent’s
failure to preserve text messages, the panel held that the
district court did not clearly err in finding that Ubaldo failed
to establish bad faith.
*
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. UBALDO 3
The panel held that the district court acted within its
discretion when it elected to issue a curative instruction rather
than granting a mistrial for a purported violation of Fed. R.
Crim. P. 16.
The panel held that the district court did not abuse its
discretion in admitting evidence regarding Ubaldo’s previous
smuggling conduct, which was relevant to show his “intent,
plan, knowledge or absence of mistake”; or in allowing the
government to introduce testimony regarding the capabilities,
usage, and source of the weapons. The panel held that any
error in allowing the weapons introduced into evidence to
remain in display in the courtroom was harmless.
The panel held that the district court adequately instructed
the jury regarding the elements of causing the importation of
weapons into the United States under 18 U.S.C. § 2(b); and
that there is no merit to the defendants’ contentions that the
district court’s willfulness instruction was incomplete, or
potentially allowed the jury to convict the defendants for
merely facilitating or brokering the deals.
COUNSEL
David S. McLane (argued), Kaye McLane Bednarski & Litt
LLP, Pasadena, California, for Defendants-Appellants.
John Michael Pellettieri (argued), Attorney, Appellate
Section; Sung-Hee Suh, Deputy Assistant Attorney General;
Leslie R. Caldwell, Assistant Attorney General; Kim
4 UNITED STATES V. UBALDO
Dammers, Deputy Chief of Litigation, Organized Crime &
Gang Division; Margaret Vierbuchen, Attorney, Organized
Crime & Gang Division; Criminal Division, United States
Department of Justice, Washington, D.C.; for Plaintiff-
Appellee.
OPINION
RAWLINSON, Circuit Judge:
Cesar Ubaldo (Ubaldo) appeals his conviction after he
was found guilty by a jury of illegally importing weapons into
the United States in violation of 18 U.S.C. §§ 371, 922(l),
924(a)(1)(C), and 22 U.S.C. §§ 2778(b)(2).1 Ubaldo makes
the following arguments on appeal:
1. The substantive offenses charged, violations of
§ 992(l) and § 2778(b), do not apply extraterritorially.
2. The evidence was insufficient to establish that Ubaldo
caused the illegal importation of weapons into the
United States.
3. His motion to suppress should have been granted
because the search warrant was obtained through
presentation of a false and misleading affidavit.
1
Ubaldo’s appeal was joined with an appeal by his co-defendant,
Sergio Syjuco (Syjuco). Syjuco subsequently withdrew his appeal.
Nevertheless, because the parties adopted each other’s arguments and
because Syjuco was a co-conspirator, this opinion refers to Syjuco and
Ubaldo collectively as “Defendants.”
UNITED STATES V. UBALDO 5
4. The prosecution violated Federal Rule of Criminal
Procedure 16 by withholding material evidence.
5. The district court admitted improper character
evidence and unduly prejudicial evidence.
6. The district court should have dismissed the
indictment because the undercover agent failed to
preserve text messages related to the investigation.
7. The district court committed instructional error by
improperly instructing the jury on willfulness and
causation; failing to instruct the jury that Defendants
could not be convicted for acting as brokers; and
improperly instructing the jury that Defendants could
be convicted on an aiding and abetting theory.
We are not persuaded that any reversible error occurred, and
we affirm.
I. BACKGROUND
A. Statement of Facts
In 2010, the United States Federal Bureau of Investigation
(FBI) initiated an investigation into illegal arms smuggling
from the Philippines into the United States. Special Agent
Charles Ro (Agent Ro) was sent to the Philippines as an
undercover agent. He used the name Richard Hahn and posed
as a representative of organizations looking to acquire
weapons illegally.
Agent Ro was put into contact with Josh Hahn (Hahn), a
broker for weapons suppliers. Hahn introduced Agent Ro to
6 UNITED STATES V. UBALDO
Roland Dasias (Dasias), who later sold Agent Ro twelve
Bushmaster Rifles. After Dasias refused to do any further
business with Agent Ro, Hahn introduced Agent Ro to Cesar
Ubaldo, also known as Arvi. Agent Ro told Hahn that he was
seeking to purchase high-powered weapons for the Mexican
Mafia and Mexican drug cartels. Ubaldo stated that he could
acquire military vests and high-powered weapons, some of
which would come from Camp Crame—a Philippine National
Police military base. Ubaldo followed up by emailing Agent
Ro a list of firearms his contacts had available for purchase.
Agent Ro returned to the United States soon thereafter,
but stayed in contact with Ubaldo about a potential weapons
sale. They scheduled a meeting in the Philippines sometime
during the week of February 20, 2011. At the meeting, Agent
Ro purchased an M82 rifle for $30,000.
The following day, Syjuco called Agent Ro and offered
to sell him an M14 assault rifle. Syjuco also informed Agent
Ro that he could obtain more M82 rifles, as well as Rocket
Propelled Grenades (RPGs) and plastic explosives from
Camp Crame.
Agent Ro assured Ubaldo and Syjuco that he could safely
store the weapons in the Philippines, but would need help
transporting the weapons out of the Philippines. He stated
that once the weapons bypassed Philippines Customs, he
could smuggle them into California, and from there into
Mexico. Ubaldo connected Agent Ro with Arjyl Revereza
(Revereza), a contact in Philippine Customs. Syjuco
confirmed that Revereza would ensure the weapons bypassed
Philippine Customs.
UNITED STATES V. UBALDO 7
Agent Ro returned to the United States, but remained in
contact with Defendants via phone and email. Syjuco
emailed his available inventory to Agent Ro. Agent Ro
replied that he would be back in the Philippines in early May,
and they could discuss further sales at that time. Before
arriving, Agent Ro ordered a mortar launcher, a grenade
launcher, ten AK-47 assault rifles, and ten grenades.
After these purchases were completed, Agent Ro
discussed shipping with Defendants and Revereza. Agent Ro
had previously described arranging for a shipping container
to arrive at a warehouse for transport to California. Agent Ro
agreed to take care of the shipping paperwork, but reiterated
the importance of bypassing customs. Revereza advised
Agent Ro to label the arms in the container as furniture.
On May 12, 2012, Agent Ro and a few other undercover
agents met with Syjuco to prepare the weapons for shipping.
Syjuco and his bodyguard helped load the weapons into
Agent Ro’s vehicle. Syjuco then helped package and
transport the weapons to the location of the shipping
container. Agent Ro’s surveillance team captured Syjuco on
video loading the weapons into the shipping container. Agent
Ro and other agents filled out a Bill of Lading, completed the
shipping documents, labeled the goods as furniture destined
for California, and forwarded the Bill of Lading to Revereza.2
Before the container was shipped, FBI agents removed
the grenades, the plastic explosives, and the weapons’ firing
pins. The agents then repackaged the weapons, sans firing
2
After helping package the weapons, Syjuco sold Agent Ro four
ballistic-proof vests he obtained from his supplier in Singapore. These
vests were placed in the container as well.
8 UNITED STATES V. UBALDO
pins, and placed tracking devices on the container. On May
18, 2011, Revereza informed Agent Ro that the container had
successfully made it onto the ship. Later, Syjuco sent Agent
Ro a text message to see if the shipping was going as
planned.
The ship was originally scheduled to travel from the
Philippines to Singapore to California. However, the ship
was rerouted through China. Special Agent Dennis Lao, the
agent overseeing the case, notified FBI agents in China that
the container was passing through. Agent Lao also notified
United States Customs in California that the ship would be
arriving with a container holding inoperable weapons that
were part of an ongoing investigation. The container arrived
in the United States on June 7, 2011.
B. Procedural History
Defendants were charged with conspiracy in violation of
18 U.S.C. § 3713 (count 1), and causing the illegal
importation of weapons into the United States in violation of
3
18 U.S.C. § 371 provides in pertinent part:
If two or more persons conspire either to commit any
offense against the United States . . . in any manner or
for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy, each shall
be fined under this title or imprisoned not more than
five years, or both. . . .
UNITED STATES V. UBALDO 9
18 U.S.C. §§ 2,4 922(l),5 924(a)(1)(C),6 and 22 U.S.C.
§ 2778(b)(2) (counts 2–5).7
4
18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an
offense against the United States, is punishable as a
principal.
5
18 U.S.C. § 922 (l) provides in pertinent part:
[I]t shall be unlawful for any person knowingly to
import or bring into the United States or any possession
thereof any firearm or ammunition; and it shall be
unlawful for any person knowingly to receive any
firearm or ammunition which has been imported or
brought into the United States or any possession thereof
in violation of the provisions of this chapter.
6
18 U.S.C. § 924(a)(1)(C) provides in pertinent part:
[W]hoever–
knowingly imports or brings into the United States or
any possession thereof any firearm or ammunition in
violation of section 922(l) . . . shall be fined under this
title, imprisoned not more than five years, or both.
7
22 U.S.C. § 2778(b)(2) provides in pertinent part:
(2) Except as otherwise specifically provided in
regulations issued under subsection (a)(1) of this
section, no defense articles or defense services
designated by the President under subsection (a)(1) of
this section may be exported or imported without a
10 UNITED STATES V. UBALDO
1. Motion To Dismiss Indictment: Failure To
Preserve Messages Sent By Agent Ro
Syjuco filed a motion to dismiss the indictment based on
Agent Ro’s failure to preserve text messages he sent to
Defendants and Revereza during the investigation. In May
2011, Agent Ro lost his telephone and purchased a new one.
After the investigation was completed, Agent Ro
photographed all the incoming messages he received from
Defendants and Revereza, but not the messages he sent. The
FBI laboratory apparently attempted to retrieve the sent
messages from the telephone, but were unable to do so.
The district court denied Syjuco’s motion for failure to
present sufficient evidence that “the Government engaged in
intentional destruction of evidence.” On reconsideration, the
district court reaffirmed its earlier ruling, finding that
Defendants failed to establish that Agent Ro acted in bad
faith. The district court granted Defendants’ alternative
request for a curative instruction permitting the jury to infer
that the outgoing messages contained information against the
government’s interest.
2. Motion To Suppress Ubaldo’s Emails
Ubaldo filed a motion to suppress emails the government
obtained from his account on the basis that the warrant
application contained false and misleading statements. In
license for such export or import, issued in accordance
with this chapter and regulations issued under this
chapter, except that no license shall be required for
exports or imports made by or for an agency of the
United States Government . . .
UNITED STATES V. UBALDO 11
particular, Ubaldo asserted that Agent Ro falsely represented
informing Ubaldo that the weapons purchased would be
shipped to the United States. The district court denied the
motion because, based on Agent Ro’s and Agent Lao’s
testimony, Ubaldo failed to establish that the statements were
false or misleading.
3. Trial: Defendants’ Evidentiary Challenges
On the first day of trial, Defendants moved in limine to
prevent the government from presenting any testimony
regarding the purpose of the weapons and from displaying the
weapons in court. Defendants argued that the evidence was
substantially more prejudicial than probative and should be
excluded under Federal Rule of Evidence 403. Defendants
also argued against the presentation of evidence related to
Ubaldo’s attempts to smuggle rifle scopes into the
Philippines, describing the evidence as improper character
evidence under Federal Rule of Evidence Rule 404(b).
The district court ruled in the government’s favor, finding
that testimony about the source of the weapons, the use of the
weapons, and display of the weapons during trial was not
unduly prejudicial given that the weapons were at the heart of
the trial. The district court also permitted introduction of the
evidence detailing Ubaldo’s attempt to smuggle rifle scopes,
declaring the evidence “relevant to Ubaldo’s state of mind,
knowledge, and intent.” However, the district court tempered
its ruling by noting its intent to instruct the jury that this
evidence could be considered solely to determine Ubaldo’s
intent.
During the course of the trial, Ubaldo filed a motion to
dismiss the indictment on the basis that the government
12 UNITED STATES V. UBALDO
engaged in prosecutorial misconduct. A government witness,
Patrick Tinling, testified that he discovered Ubaldo’s
correspondence about smuggling rifles scopes. In response,
Ubaldo’s counsel sought to establish that Ubaldo actually
directed the shipper to label the rifle scopes according to the
factory specifications, and introduced emails to that effect.
Ubaldo’s counsel also introduced an email stating that the
rifle shipment was delayed for innocuous reasons. On
redirect, Tinling stated that the email explaining the delay
was forged. Ubaldo’s counsel argued that the charges should
be dismissed because the government engaged in misconduct,
never disclosing that the document was forged.
The district court denied the motion. But, to cure any
potential prejudice, the district court removed the letter from
evidence and instructed the jury to disregard the letter and
any testimony related to it.
4. Post-Trial Motion For Acquittal: Sufficiency
of the Evidence
Syjuco filed a motion for acquittal based on insufficient
evidence. Syjuco argued that no reasonable jury could find
that Defendants imported, aided and abetted the importation
of, or caused the importation of weapons into the United
States. Defendants maintained that the evidence was not
sufficient to support a conviction for importing the weapons
into the United States, because government agents “alone
brought the weapons into the United States.” Defendants also
contended that the evidence was insufficient to support an
aiding and abetting conviction because government agents
lacked the required mens rea. Finally, Defendants argued
that the lack of evidence that they willfully directed the
importation of the weapons precluded a finding that they
UNITED STATES V. UBALDO 13
“caused” importation of the weapons. The district court
denied the motion, finding that a reasonable jury could
convict Defendants on the evidence presented.
5. Jury Instructions and Verdict
Prior to instructing the jury, the district court held a status
conference to address the parties’ arguments concerning jury
instructions. As relevant here, the parties submitted proposed
instructions on aiding and abetting. Defendants suggested
that the district court instruct the jury that:
In order to be found guilty of willfully
“causing” a federal agent to import defense
articles and firearms from the Philippines into
the United States, the government must prove
(1) that the defendants “caused” the federal
agent to import those items into the United
States, and (2) that the defendants did so
“willfully.”
The word “cause” as used in these instructions
means to direct another person to act [and] the
government must prove . . . the defendants
directed that agent to import those items into
the United States. . . .
The district court ultimately gave the following
instruction:
...
In order for the defendants to be found
guilty of “importing” defense articles and
14 UNITED STATES V. UBALDO
firearms into the United States, the
government must prove to you, beyond a
reasonable doubt, that the defendants brought
or aided and abetted the bringing of those
items into the United States.
It is not sufficient for the government to
prove that the defendants merely exported
those items from the Philippines.
...
A defendant may be found guilty of the
crimes charged . . . even if the defendant
personally did not commit the acts or acts
constituting the crimes, but only aided and
abetted in their commission.
That is, whoever willfully causes an act to
be done which if directly performed by him or
another would be an offense against the
United States is punishable as a principal.
However, the government need not prove that
someone other than the defendant was guilty
of the substantive crime. A person who causes
the commission of an offense is punishable as
a principal even though the person who
completes the wrongful act violates no
criminal statute because of lack of criminal
intent or capacity. One who puts in motion or
causes the commission of an indispensable
element of an offense by an innocent agent or
instrumentality is guilty as a principal.
UNITED STATES V. UBALDO 15
The district court declined to instruct the jury that
Defendants could not be convicted if they merely acted as
brokers, because the government never offered a broker
theory of liability. The jury convicted Defendants.
6. Motion for Acquittal and for a New Trial:
Extraterritorial Jurisdiction and Instructional
Error
Defendants filed a motion for acquittal based on lack of
extraterritorial jurisdiction and a motion for a new trial based
on instructional error. They asserted that Congress did not
intend for 18 U.S.C. § 922(l) and 22 U.S.C. § 2778(b)(2) to
apply to foreign persons whose actions occurred in a foreign
country. They also contended that the aiding and abetting
language in the jury instructions converted the case into one
involving brokering or mere facilitation.
The district court denied both motions. The district court
determined that the statutory language, statutory context, and
legislative history demonstrated that Congress sought to
capture conduct that occurred outside the United States,
irrespective of the actor’s citizenship. The district court also
found that the aiding and abetting language in the jury
instruction did not convert the case into a brokering case
because the jury was instructed that Defendants had to
willfully cause the importation, not merely facilitate it.
Ubaldo filed a timely appeal challenging his conviction.
II. STANDARDS OF REVIEW
We apply de novo review to a district court’s decision
denying a motion for acquittal based on sufficiency of the
16 UNITED STATES V. UBALDO
evidence. See United States v. Gonzalez, 528 F.3d 1207,
1211 (9th Cir. 2008). “There is sufficient evidence to support
a conviction if, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Id. (citation omitted).
We also apply de novo review when reviewing a district
court’s decision regarding the extraterritorial reach of a
statute. See United States v. Clark, 435 F.3d 1100, 1106 (9th
Cir. 2006).
Further, de novo review is applied to the denial of a
motion to suppress and of a motion to dismiss an indictment.
See United States v. Fries, 781 F.3d 1137, 1146 (9th Cir.
2015) (motion to suppress); United States v. Black, 733 F.3d
294, 301 (9th Cir. 2013) (motion to dismiss indictment). But,
the “factual findings underlying the denial” are reviewed for
clear error. Fries, 781 F.3d at 1146 (citation and alteration
omitted). And, on a motion to dismiss an indictment, the
evidence is viewed in the light most favorable to the
prosecution. See Black, 733 F.3d at 301.
Rulings on motions for a mistrial and discovery issues are
reviewed for an abuse of discretion. See United States v.
Cardenas-Mendoza, 579 F.3d 1024, 1029–30 (9th Cir. 2009).
A district court’s evidentiary rulings and its formulation
of jury instructions are also reviewed for an abuse of
discretion. See Fries, 781 F.3d at 1146. Alleged
misstatements of law in the district court’s instructions,
however, are reviewed de novo. See id.
UNITED STATES V. UBALDO 17
III. DISCUSSION
A. Motion for Acquittal: Extraterritorial Application
of 18 U.S.C. § 992(l) and 22 U.S.C. § 2778(b)(2)
Ubaldo contends that these statutes may not be applied to
persons outside the United States because the statutes lack an
expressed intention of extraterritorial application to rebut the
presumption against extraterritorial application of United
States statutes. He further contends that the legislative
history of the statutes reflects an express intent that the
statutes apply only within the territory of the United States.
The Supreme Court recently addressed the issue of
extraterritorial application of a statute in RJR Nabisco, Inc. v.
European Community, 136 S. Ct. 2090, 2096 (2016), a case
dealing with extraterritorial application of the Racketeer
Influenced and Corrupt Organizations Act (RICO). The
Supreme Court clarified that courts must begin with the
presumption that United States statutes do not apply to
foreign conduct. See id. at 2100. It explained that a two-step
framework must be applied to determine if that presumption
has been overcome. See id. at 2101. Such framework treats
the presumption against extraterritoriality as a substantive
canon of construction. Daniel Sullivan & Kevin Benish,
Statutory Interpretation and the Morrison Presumption
Against Extraterritoriality, 85 U.S.L.W. 1290 (March 23,
2017).
First, the court must determine whether the presumption
against extraterritorial application has been rebutted by “clear
[and] affirmative indication” in the statute. Id. Second, if a
determination is made that the statute does not apply
extraterritorially, the court must determine whether the case
18 UNITED STATES V. UBALDO
at hand “involves a domestic application of the statute” by
analyzing the “focus” of the statute. Id. If the presumption
is rebutted at step one, there is no need to proceed to the
second step of the analysis. See id. The Court held that
certain of RICO’s substantive provisions apply
extraterritorially because the language of those provisions
expressly references conduct that occurs outside the United
States. See id. at 2101–02. Having made that ruling, the
Supreme Court did not proceed to step two of the analysis.
See id. at 2103.
For similar reasons, § 922(l) and § 2778(b)(2) overcome
the presumption against extraterritoriality. See RJR, 136 S.
Ct. at 2100–02. Analogous to the substantive RICO statutes
at issue in RJR, illegally importing weapons into the United
States by its very nature targets conduct that almost always
originates outside the United States. See id. at 2101–02. As
we noted some time ago, “smuggling by its very nature
involves foreign countries, and . . . always requires some
action in a foreign country.” Brulay v. United States, 383
F.2d 345, 350 (9th Cir. 1967). The fact that illegally
importing weapons into the United States almost always
requires some conduct in a foreign country distinguishes it
from most other crimes, such as murder. See Kiobel v. Royal
Dutch Petroleum Co., 133 S. Ct. 1659, 1665 (2013).
In addition, the legislative history of the statutes reflects
an intent to capture conduct occurring outside the United
States. See H.R. Rep. No. 94-1144 at 23 (1976), reprinted in
1976 U.S.C.C.A.N. 1378, 1399 (declaring “that it shall be the
policy of the United States to exert leadership in the world
community to bring about arrangements for reducing the
international trade in implements of war and to lessen the
danger of outbreak of regional conflict and the burdens of
UNITED STATES V. UBALDO 19
armaments, U.S. programs for or procedures governing the
export, sale, and grant of arms and munitions to foreign
countries and international organizations shall be
administered in a manner which will carry out this policy”);
H.R. Rep. No. 90-1577 at 6 (1968), reprinted in 1968
U.S.C.C.A.N. 4410, 4411 (expressing a purpose “to
strengthen Federal controls over interstate and foreign
commerce in firearms”).
We conclude that the presumption against
extraterritoriality has been rebutted by the provisions within
the statute and the legislative history accompanying the
statute. Therefore, we need not and do not proceed to the
second step of the applicable analysis. See RJR, 136 S. Ct. at
2101.
B. Motion For Acquittal: Sufficiency of the Evidence
Federal law prohibits “any person” from “knowingly . . .
import[ing]” weapons, firearms, and explosives into the
United States without government approval. See 18 U.S.C.
§ 922(l); 22 U.S.C. § 2778(b)(2); 22 C.F.R. § 121.1. A more
general criminal statute allows prosecution for “knowingly”
and “willfully” aiding and abetting or engaging in actions
causing harm to the United States. See 18 U.S.C. § 2(b).
Under § 2(b), a defendant may be prosecuted even if he did
not complete the substantive offense. See id.; see also United
States v. Armstrong, 909 F.2d 1238, 1241 (9th Cir. 1990), as
amended.
Defendants assert that the evidence was insufficient to
support their convictions because they were not involved in
the actual importation of the weapons; selling the weapons
was not the but-for cause of the later importation; they did not
20 UNITED STATES V. UBALDO
direct the agents to ship the items; and the government agents
broke the chain of causation because government agents
cannot illegally import weapons. Viewing the evidence in the
light most favorable to the government, this claim is
meritless.
As mentioned, under § 2(b), Defendants were not required
to take an active role in actually transporting or shipping the
illicit weapons to the United States. See 18 U.S.C. § 2(b).
Rather, the jury could convict Defendants if they
“knowingly” and “willfully” caused the weapons to be
transported to the United States. Id. Indeed, Defendants
could be held criminally responsible for harms that flowed
naturally or were a direct result of their conduct. See United
States v. Causey, 835 F.2d 1289, 1292 (9th Cir. 1987)
(clarifying that § 2(b) was added “to remove all doubt that
one who . . . assists in the illegal enterprise . . . is guilty as a
principal”) (alteration, ellipsis, and internal quotation marks
omitted). Under the governing law, Defendants’ role was
sufficient to support their conviction under § 2(b). See id.
The government presented evidence that Syjuco earned
thousands of dollars by procuring high-powered weapons and
selling them to an undercover agent, who informed him that
he would smuggle the guns into Mexico through California.
The government also presented evidence that Ubaldo
arranged the meetings for weapons sales, put Agent Ro in
contact with a Philippine customs official who could help
smuggle the weapons out of the country, and was aware that
the weapons would be smuggled into Mexico via California.
Considering those facts, a reasonable jury could find that
Defendants knowingly and willfully caused illicit weapons to
be imported into the United States because the importation of
UNITED STATES V. UBALDO 21
the weapons flowed naturally from their conduct. See
Causey, 835 F.2d at 1292.
In the alternative, Defendants rely on Burrage v. United
States, 134 S. Ct. 881, 887–88 (2014), arguing that the
government failed to produce sufficient evidence that the
weapons sales were a but-for cause of the importation.
However, the facts in this case are consistent with the
Supreme Court’s reasoning in Burrage because Defendants
entered the transaction knowing the outcome—that Agent Ro
would transport the weapons to California. See id. at 888
(holding that “conduct is the cause of a result if it is an
antecedent but for which the result would not have occurred”)
(citation, alteration and internal quotation marks omitted). In
sum, Agent Ro would not have been able to import the
weapons into the United States if Defendants never sold them
to him. See United States v. Collins, 109 F.3d 1413, 1419
(9th Cir. 1997) (reasoning that “[t]he act of an intermediary
does not break the chain of causation”) (citation and internal
quotation marks omitted).
The result does not change because the FBI handled the
shipping, because Defendants did not direct the agents to ship
the weapons to the United States, or because, as a matter of
law, FBI agents cannot violate the substantive statutes. We
have held that, under § 2(b), a defendant may be convicted,
even if he did not commit all the elements of the offense, but
“cause[d] the commission of an indispensable element of the
offense by an innocent agent . . . [who] lack[s] . . . criminal
intent or capacity.” Causey, 835 F.2d at 1292 (emphasis
omitted); see also United States v. Ezeta, 752 F.3d 1182,
1185–86 & n.3 (9th Cir. 2014) (citing Causey in affirming a
defendant’s conviction for fraud even though he did not
“exercise[] dominion and control over the unlawfully
22 UNITED STATES V. UBALDO
obtained funds”); United States v. Wise, 221 F.3d 140, 151
(5th Cir. 2000) (“[A]n aiding and abetting conviction for a
completed substantive offense may stand even if the principal
is a government agent with no guilty intent and therefore no
substantive crime actually was committed . . . .”) (citation
omitted).
In a similar case, the United States Court of Appeals for
the Second Circuit rejected the argument Ubaldo raises here.
See United States v. Jordan, 927 F.2d 53, 55–56 (2d Cir.
1991). In Jordan, the defendant was charged with causing
the illegal importation of narcotics into the United States. See
id. at 54. Jordan coordinated a plan for Savaneeya Batton to
travel to Thailand to purchase heroin to deliver to a courier
for transport to the United States. See id. at 54–55. Batton
completed the purchase in Thailand and gave the heroin to the
courier, an undercover Drug Enforcement Administration
agent, who transported it to the United States. See id.
On appeal, the Second Circuit affirmed Batton’s
conviction under 18 U.S.C. § 2(b). See id. at 55–56. Batton
argued that she could not be liable for causing the importation
because a government agent completed the importation. See
id. at 55. The court held that:
The fact that the undercover agent was willing
to be used as the instrument of her criminal
activity, in order to apprehend her and her
confederates, does not detract in any way
from her criminal responsibility. She is as
liable for the offense of importation as she
would be if she had surreptitiously slipped the
UNITED STATES V. UBALDO 23
heroin into the handbag of an unsuspecting
passenger.
Id.
C. Motion to Suppress: False and Misleading
Statements in Warrant Affidavit
When a defendant seeks to suppress evidence due to a
faulty search warrant, he must demonstrate that the
government intentionally included false information in the
affidavit supporting the warrant, and that there would not
have been probable cause without the challenged statements.
See United States v. Tham, 960 F.2d 1391, 1395 (9th Cir.
1992), as amended.
The search warrant application for Ubaldo’s emails was
supported by an affidavit from Agent Lao explaining that
Agent Ro, described in the affidavit as “FBI Undercover
Employee,” spoke with Ubaldo about smuggling weapons
into the United States. Ubaldo contends that this affidavit
contained false and misleading statements regarding the final
destination of the weapons and regarding his knowledge that
the weapons would be imported into the United States. He
also contends that Agent Lao failed to disclose that he was
relaying secondhand information. He submits that the
warrant application would have been denied without these
allegedly false and misleading statements. The district court
held a Franks8 hearing on these claims, and denied Ubaldo’s
motion to suppress the evidence obtained from execution of
the search warrant.
8
Franks v. Delaware, 438 U.S. 154 (1978).
24 UNITED STATES V. UBALDO
The evidence in the record supports the district court’s
finding. See United States v. Martinez-Garcia, 397 F.3d
1205, 1215 (9th Cir. 2005) (reviewing the district court’s
Franks ruling for clear error). Defendants simply failed to
present evidence sufficient to establish that Agent Lao made
materially false and misleading statements. The district court
heard testimony and evidence from the parties regarding the
allegedly false and misleading statements, and credited Agent
Lao’s testimony. That credibility determination is entitled to
substantial deference. See United States v. Becerra-Garcia,
397 F.3d 1167, 1172 (9th Cir. 2005). The motion to suppress
was properly denied.
D. Motion To Dismiss The Indictment: Failure To
Preserve Evidence
The government violates a defendant’s due process rights
when it destroys potentially exculpatory evidence in bad
faith. See United States v. Estrada, 453 F.3d 1208, 1212–13
(9th Cir. 2006). In determining whether there was a violation
warranting dismissal of the indictment, the evidence must be
viewed in the government’s favor. See Black, 733 F.3d at
301.
Ubaldo posits that the district court should have dismissed
the indictment due to Agent Ro’s bad faith in failing to
preserve the text messages he sent. Ubaldo asserts that Agent
Ro intentionally deleted the outgoing messages because they
were exculpatory and preserved the incoming messages
because they were inculpatory. Although the district court
concluded that Ubaldo failed to establish that Agent Ro acted
in bad faith, the district court nevertheless agreed to instruct
the jury that it could view Agent Ro’s conduct as evidence
UNITED STATES V. UBALDO 25
that the outgoing text messages were against the
government’s interest.
The district court did not clearly err in finding that Ubaldo
failed to establish bad faith. See United States v. Sivilla, 714
F.3d 1168, 1170–72 (9th Cir. 2013) (reviewing the district
court’s determination for clear error). At the hearing held to
resolve this issue, Agent Ro testified that he lost many of the
sent messages because he lost his cell phone in May, 2011.
He was under the impression that his cell phone automatically
stored the outgoing messages; therefore, Agent Ro only
deleted outgoing messages that he considered unimportant.
Agent Ro also attempted to retrieve his outgoing messages by
sending his cell phone to the FBI technology department, but
the messages could not be retrieved. See Estrada, 453 F.3d
at 1213 (holding that a defendant failed to show bad faith
when the government attempted to retrieve the lost evidence).
E. Motion for a Mistrial: Withholding Material
Evidence
Federal Rule of Criminal Procedure 16 requires the
government, upon request, to permit a defendant to inspect
any evidence that is material to his defense. See Cardenas-
Mendoza, 579 F.3d at 1030. In determining whether or not to
grant a mistrial based on prosecutorial misconduct of this
nature, the district court may exercise its discretion to issue
a curative instruction rather than granting a mistrial. See id.
Ubaldo asserts that the government failed to disclose a
report showing that a letter regarding mislabeled rifle scopes
was forged. He argues that the report was material and
prejudicial because he would have never offered the letter
into evidence if he had known it was forged, and that the
26 UNITED STATES V. UBALDO
district court’s curative instruction did not adequately purge
the jury’s negative impression of the evidence.
The district court acted within its discretion when it
elected to issue a curative instruction rather than granting a
mistrial for the purported violation of Rule 16. See
Cardenas-Mendoza, 579 F.3d at 1029–30. Not only did the
court order the letter withdrawn as evidence, the jury was
instructed “to give no consideration to that letter or any
testimony regarding the letter or its content.” It is strongly
presumed that the jury followed the court’s instruction, see
United States v. Johnson, 767 F.3d 815, 824 (9th Cir. 2014),
and no evidence in the record rebuts that presumption.
Accordingly, we conclude that no reversible error occurred.
F. Evidentiary Objections: Federal Rules of
Evidence 404(b) and 403.
Federal Rule of Evidence 404(b)(1)9 bars the admission
of evidence offered to show that a person acted in accordance
with prior “bad acts.” See United States v. Decinces, 808
F.3d 785, 790 (9th Cir. 2015). But, a district court may admit
the evidence to show a defendant’s “intent, plan, knowledge
or absence of mistake.” Id. (citation omitted); see also Fed.
R. Evid. 404(b)(2) (2013).
9
At the time of Ubaldo’s trial, Rule 404(b)(1) provided: “Evidence
of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted
in accordance with the character.” Fed. R. Evid. 404(b)(1) (2013).
UNITED STATES V. UBALDO 27
Federal Rule of Evidence 40310 bars the admission of
evidence when the danger of unfair prejudice substantially
outweighs the probative value of the evidence. See United
States v. Lloyd, 807 F.3d 1128, 1151 (9th Cir. 2015). “A
district court’s Rule 403 determination is subject to great
deference, because the considerations arising under Rule 403
are susceptible only to case-by-case determinations, requiring
examination of the surrounding facts, circumstances, and
issues.” Id. at 1152 (citation and internal quotation marks
omitted).
Ubaldo asserts that the admission of emails showing that
he previously attempted to mislabel rifle scopes to bypass
Philippine customs violated Rule 404(b). He maintains that
the evidence was irrelevant to the charged offenses, was
unduly prejudicial, and did not conform to the rule’s
definition of a prior bad act. He also contends that the district
court violated Rule 403 by allowing a government witness to
testify about the capabilities of the weapons; terrorist use of
the weapons; the destructive power of the weapons; and the
origin of the weapons in an area of the Philippines frequented
by terrorists. Finally, he challenges the district court’s
decision to allow the weapons introduced into evidence to
remain on display in the courtroom.
We do not agree that the district court abused its
discretion in admitting the evidence regarding Ubaldo’s
previous smuggling conduct because it was relevant to show
10
Rule 403 provided: “The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403 (2013).
28 UNITED STATES V. UBALDO
his “intent, plan, knowledge or absence of mistake.”
Decinces, 808 F.3d at 790 (citation omitted). Nor did the
district court abuse its discretion in allowing the government
to introduce testimony regarding the capabilities, usage, and
source of the weapons. See Lloyd, 807 F.3d at 1152. Given
“the surrounding facts, circumstances, and issues” of the case,
it was reasonable for the district court to find that the
testimony was not unduly prejudicial because it could help
prove that Defendants knew the weapons would be shipped
to the United States for illicit purposes. Id.
Ubaldo cites no case authority supporting his argument
that it was reversible error for the district court to allow the
weapons introduced into evidence to remain on display in the
courtroom. In any event, any error in allowing the weapons
to remain on display was harmless beyond a reasonable doubt
in view of the overwhelming evidence of guilt in the record.
See United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.
2008).
G. Motion for a New Trial: Jury Instructions
A district court’s formulation of jury instructions must
adequately cover the applicable law and must not be
misleading. See Lloyd, 807 F.3d at 1164. We review the
instructions as a whole when determining if there was
instructional error. See id.
Ubaldo asserts that the district court improperly instructed
the jury on causation under 18 U.S.C. § 2(b) by using the
phrase “aid and abet” interchangeably with “cause,” and
likely confused the jury by using the vague phrase “puts in
motion.” Additionally, Ubaldo contends that the district court
erred by failing to give a more in-depth instruction on
UNITED STATES V. UBALDO 29
willfulness and by failing to explain that Defendants could
not be convicted for merely brokering the transactions. We
are not persuaded.
The instructions given adequately covered the law
regarding the elements necessary to find Defendants guilty of
causing the importation of weapons into the United States
under § 2(b) and were consistent with our ruling in Causey.
See Causey, 835 F.2d at 1292 (holding that a violation of
§ 2(b) occurs when an individual “puts in motion or . . .
causes the commission of an indispensable element of the
offense”) (emphasis added). Defendants were criminally
liable for willfully violating § 2(b) because they “put[] in
motion or assist[ed] in . . . the commission of an
indispensable element of the offense.” Id. The district
court’s inclusion of the phrase “aided and abetted” in the
§ 2(b) causation instruction was unlikely to mislead the jury
in view of the balance of the instruction that correctly guided
the jury deliberations. See Lloyd, 807 F.3d at 1164–65
(considering the instructions as a whole in concluding that
error occurred).
Finally, there is no merit to Defendants’ contentions that
the district court’s willfulness instruction was incomplete, or
potentially allowed the jury to convict Defendants for merely
facilitating or brokering the deals. As previously stated, the
district court’s instructions tracked this Court’s holding in
Causey, and tracked the language of the statute. See Causey,
835 F.2d at 1292 (describing the aiding and abetting statute
as prohibiting willful acts); see also United States v. Garcia,
729 F.3d 1171, 1177 (9th Cir. 2013) (noting that “an
instruction tracking a statute is generally not erroneous”)
(citation omitted); Lloyd, 807 F.3d at 1165 (holding that the
district court did not err in instructing the jury, even though
30 UNITED STATES V. UBALDO
the defendant requested a more expansive instruction on
recklessness). As acknowledged by Defendants, they were
not charged under the Brokering Amendment of the statute.
Consequently no instruction addressing brokering was
warranted. See Avila v. Los Angeles Police Dep’t, 758 F.3d
1096, 1101 (9th Cir. 2014) (“There must be a sufficient
evidentiary foundation to support giving [a jury]
instruction.”) (citation omitted).
IV. CONCLUSION
The district court correctly determined that, considering
the language of the legislation and the history of the
legislation, the weapons importation statutes, §§ 922(l) and
2778(b)(2), apply extraterritorially. Applying the aiding and
abetting statute to Defendants’ conduct, the district court
properly rejected the challenge to the sufficiency of the
evidence to support the jury’s verdict. Finally, the
evidentiary rulings and jury instruction formulations were all
comfortably within the district court’s discretion.
AFFIRMED.