United States v. Ivory Coast

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10642
Plaintiff - Appellee, D.C. No. 5:10-cr-00434-RMW-1
v.
MEMORANDUM*
MICHAEL BARRY SHOR; NGUESSAN
YAO,
Defendants,
IVORY COAST, AKA Republic of the
Cote D’Ivoire,
Petitioner - Appellant.
UNITED STATES OF AMERICA, No. 14-10115
Plaintiff - Appellee, D.C. No. 5:10-cr-00434-RMW-1
IVORY COAST, AKA Republic of the
Cote D’Ivoire,
Petitioner - Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
MICHAEL BARRY SHOR; NGUESSAN
YAO,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted November 20, 2015
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and PARKER,** Circuit Judges.
Ivory Coast appeals the district court’s award of summary judgment to the
United States in an ancillary proceeding to adjudicate Ivory Coast’s interest in
$3,923,030 that Defendants Michael Barry Shor and N’Guessan Yao forfeited in a
criminal case. We affirm.
1. Ivory Coast is not entitled to a constructive trust in the forfeited funds.
Even when construing the evidence in Ivory Coast’s favor, a reasonable fact finder
could not conclude that Shor deceived Ivory Coast into believing the arms
transaction was lawful. “A state is responsible for any violation of its obligations
under international law resulting from action or inaction by . . . any organ, agency,
** The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
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official, employee, or other agent of a government or of any political subdivision,
acting within the scope of authority or under color of such authority.” Restatement
(Third) of Foreign Relations Law § 207 (1987). As the district court found,
Defense Minister Michel Amani N’Guessan (Amani) knew that the arms
transaction was illegal, and he acted under the color of his authority when he
participated in the transaction. Ivory Coast, therefore, cannot establish that it was
deceived into believing that the arms transaction was legal.
2. The in pari delicto doctrine “prevent[s] the return of money voluntarily
paid to a government agent in an illegal transaction.” Kardoh v. United States, 572
F.3d 697, 701 (9th Cir. 2009). Amani participated in the arms transaction, which
he knew to be illegal, and Ivory Coast is vicariously liable for his actions.
Accordingly, the in pari delicto doctrine bars Ivory Coast from recovering the
money.
3. The Foreign Sovereign Immunities Act, 28 U.S.C. § 1609, does not
prohibit the forfeiture in this case because, among other reasons, Ivory Coast does
not have a property interest in the funds.
4. The district court did not abuse its discretion in denying Ivory Coast’s
request for additional discovery because the discovery sought would not have
altered the grant of summary judgment.
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AFFIRMED.
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