United States v. Oliver King

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30235
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00168-
JLR-1
OLIVER KING, AKA Hamid
Malekpour,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
May 9, 2013—Seattle, Washington
Filed November 15, 2013
Before: Sidney R. Thomas and Jacqueline H. Nguyen,
Circuit Judges, and Raymond J. Dearie, District Judge.*
Opinion by Judge Nguyen
*
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. KING
SUMMARY**
Criminal Law
Affirming convictions for unlawfully dealing in firearms
in violation of 18 U.S.C. § 922(a)(1)(A) and making false
statements to customs officials to gain entry into the United
States in violation of 18 U.S.C. § 1001, the panel held that
with regard to the unlawful dealing charge, the defendant was
not entitled to jury instructions requiring the government to
prove that the defendant was not acting as an authorized agent
of a federal firearms licensee.
Reviewing for plain error, the panel held that there was
sufficient evidence to prove that the defendant “engaged in
the business” of dealing firearms, as required by
§ 922(a)(1)(A), and to prove the materiality element
supporting the § 1001 convictions.
The panel concluded that the district court did not abuse
its discretion in denying the defendant’s motion for a new
trial.
COUNSEL
Terrence Kellogg, Seattle, Washington, for Defendant-
Appellant.
**
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. KING 3
Michael S. Morgan (argued), Assistant United States
Attorney, and Jenny A. Durkan, United States Attorney,
United States Attorney’s Office, Seattle, Washington, for
Plaintiff-Appellee.
OPINION
NGUYEN, Circuit Judge:
Oliver King appeals his convictions for unlawfully
dealing in firearms, in violation of 18 U.S.C. § 922(a)(1)(A),
and making false statements to customs officials to gain entry
into the United States, in violation of 18 U.S.C. § 1001. With
regard to his conviction for unlawfully dealing in firearms,
King contends that the district court erred in refusing to give
his proposed jury instructions, which required the government
to prove that King was not acting as an authorized agent of a
federal firearms licensee. In an issue of first impression in
our circuit, we hold that King is not entitled to such an
instruction. Because we also find that King’s remaining
contentions—that the evidence was insufficient, and that the
district court abused its discretion in denying his motion for
a new trial—lack merit, we affirm.
BACKGROUND
A. Factual Background
Oliver King, born Hamid Malekpour, is an Iranian-born
Canadian citizen and self-described firearms enthusiast. In
January 2009, during a flight from Amsterdam to Tehran,
King bonded with Amir Zarandi, an Iranian-born United
States citizen, over their shared passion for guns.
4 UNITED STATES V. KING
Although King purportedly ran an ammunition
manufacturing business in Vancouver, Canada, he was not
permitted to lawfully deal firearms in either the United States
or Canada. As a non-immigrant alien, King was ineligible for
a license to deal firearms in the United States. He was
eligible for a license in Canada, but his license had been
revoked. Three months after he and Zarandi met, King
invited Zarandi to Vancouver. During the visit, King drove
Zarandi to a building where King’s company was purportedly
located. When Zarandi asked to go inside, King made
excuses and did not permit Zarandi to enter. At King’s
apartment, King showed off his gun collection and introduced
Zarandi to his “wife,” Rebecca Reznick, whom King claimed
to have met when they served together in the Israeli
Intelligence. (In fact, she was his girlfriend whom he met on
J-date.) Zarandi indicated that he was interested in getting
into the firearms business, but didn’t know very much about
it. King proposed, and Zarandi agreed, to have King do the
“legwork” to help Zarandi set up a firearms business in the
United States.
In May 2009, King secured a one-room office in
McMinnville, Oregon,1 and incorporated an entity called
McMinnville Hunting and Police Supply (“MHPS”).
MHPS’s articles of incorporation listed King, using the
pseudonym “O. Ki,” as its registered agent. King paid the
incorporation fee and lease with Reznick’s credit card.
As support for MHPS’s federal firearms license (“FFL”)
application, Zarandi mailed King copies of his social security
1
According to Zarandi, King chose McMinnville because it was cheap,
close to King’s “in-laws,” and because King allegedly knew the police
chief there.
UNITED STATES V. KING 5
card and certificate of naturalization. In June 2009, King
submitted the application on behalf of MHPS. The
application listed Zarandi, identified as the company’s CEO,
as the sole “responsible person.”2 Approximately two months
later, King flew Zarandi to McMinnville to meet with an
investigator from the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) about the license. During this meeting,
Zarandi and King informed the investigator that King would
“not be part of the business, that Amir [Zarandi] would solely
be the owner/operator of the business.”
MHPS’s application was subsequently approved and, in
October 2009, an investigator contacted Zarandi to inquire as
to whether he had received the license. Zarandi said he had
not, but indicated that his “consultant” might have. King later
contacted the investigator, identifying himself as “Oliver Ki.”
During the phone call, King repeatedly used the term “we”
when referring to MHPS. When the investigator questioned
his involvement, King chalked it up to his “broken English,”
reiterating that he was only a consultant. Weeks passed, and
Zarandi still had not heard whether MHPS’s license had been
approved. So he called King, who said he would look into it.
Within a few hours, Zarandi received the license via e-Fax.
2
As defined on the application, a “responsible person” is “someone who
can control and direct the activities of the firearms license.” For corporate
applicants, a “responsible person” includes “any individual possessing
directly or indirectly the power to direct or cause the direction of
management policies and practices of the [business], insofar as they
pertain to firearms.” See Appendix A (Application for Federal Firearms
License, Instruction #10). All responsible persons must provide
fingerprints, and submit to the background check associated with the
license.
6 UNITED STATES V. KING
According to Zarandi, King was eager to buy guns once
the license was secured. Zarandi agreed to order five semi-
automatic rifles from LWRC International (“LWRC”).3 After
this transaction, Zarandi also agreed to let King “use the
company” in order to buy items which did not require a
federal firearms license, such as optics and scopes.
But King wanted more. Before long, he began purchasing
firearms behind Zarandi’s back. Unbeknownst to Zarandi,
King submitted credit applications on MHPS’s behalf to
multiple firearms suppliers, providing them with copies of the
license on which Zarandi’s signature had been forged. On
one occasion, King even posed as Zarandi, setting up an
email account in Zarandi’s name to submit paperwork with
Zarandi’s forged signature. Using this falsified
documentation, King ordered nineteen additional
firearms—semi-automatic rifles, pistols, shotguns, and sniper
rifles—as well as magazines and thousands of rounds of
ammunition.
Although there was no evidence that King successfully
sold any firearms,4 King offered to procure them for others on
at least two occasions. First, he offered to supply a “weapon
or gun” to David Potter, the property manager of MHPS’s
office building, bragging that he could get it at a cheap price.
When Potter said he was interested in a “44 mag,” King
3
King deposited $5,000 into MHPS’s bank account to pay for these
firearms. He also tried to get Zarandi to order another $20,000 in rifles
from LWRC, but they could not obtain enough funding.
4
Two of the twenty-four firearms ordered on behalf of MHPS, however,
were never located or accounted for. King also sold ammunition and
magazines for $1,700 in cash to a man he arranged to meet in a grocery
store parking lot.
UNITED STATES V. KING 7
replied, “No problem.” King also offered to sell David
Seward a handgun. After Seward told King that he was
interested in a Glock 9mm handgun, King invited Seward into
the MHPS office, showed him a Glock that was for sale, and
offered it to Seward for about $500. The sale was never
consummated, but Seward subsequently called King to
inquire about purchasing three other firearms.
Between May 2009 and May 2010, King entered the
United States from Canada on eighteen separate occasions.
Fifteen of these times he was referred for secondary
inspection.5 During his interactions with Customs and
Borders Protection (“CBP”) officials, King repeatedly lied
about his reasons for entering the United States, concealing
his firearms-related activities. For instance, on November 8,
2009, King told CBP officers that he was going to meet his
father-in-law and wife at a Costco store in Bellingham,
Washington. Instead, he drove to MHPS’s office in
McMinnville, Oregon.
Similarly, on March 15, 2010, King entered the United
States after telling a CBP officer that he was going to a
nearby Costco to buy a camcorder. ICE agents followed him
as he continued to drive south to Marysville, Washington, at
which point they discontinued surveillance. The next day,
King rented a storage unit in Ferndale, Washington (located
approximately twenty minutes from the Canadian border).
5
King was subject to heightened scrutiny at border entry points because,
in February 2009, his “unclear story” about his intended purpose in the
United States, along with his name change and recent travel to Iran, drew
the attention of border agents. Following an interview with ICE and FBI
agents, officials opened a preliminary investigation and entered King into
an ICE database.
8 UNITED STATES V. KING
His rental paperwork listed MHPS’s corporate office as his
address of record.
On May 18, 2010, King presented a brand new passport
to a CBP officer at a different port of entry, claiming he was
heading to Bellingham, Washington, to pick up his wife at
Target. However, agents followed him as he drove directly
to Oregon, arriving at MHPS’s office in McMinnville the
next morning. There, they observed King loading several
large boxes into his car before driving back north to his U-
Haul storage unit.
Agents searched King’s vehicle and storage unit and
recovered twenty-one firearms, assault-rifle magazines, and
ammunition. King’s laptop contained a number of
incriminating documents, including the following: digital
copies of credit applications submitted to firearms dealers on
MHPS’s behalf that contained Zarandi’s forged signature; an
unsigned letter from “A. Zarandi” confirming King’s
employment with MHPS; copies of Zarandi’s social security
card and certificate of naturalization; articles of incorporation
for MHPS; and an unsigned copy of MHPS’s federal firearms
license.
B. Procedural History
King was indicted on charges of unlawfully dealing in
firearms (Count 1); unlawful possession and/or transportation
of firearms and ammunition by an alien (Count 2); and three
counts of making false statements to a government agency,
namely border customs officials (Counts 3–5). Prior to trial,
he requested jury instructions that stated, in relevant part, that
the government was required to prove King was not acting as
an agent “of another person or corporation that did have a
UNITED STATES V. KING 9
license as a firearms dealer” in order to convict him of
unlawfully dealing in firearms. The district court refused to
provide these instructions.
Following a six-day trial, a jury convicted King on all five
counts. He subsequently appealed. While his appeal was
pending, however, the Department of Justice’s Office of
Legal Counsel (“OLC”) issued an opinion that negated the
legal theory supporting King’s alien-in-possession conviction
on Count 2. The government conceded that this conviction
could not stand, and we remanded for re-sentencing on the
remaining counts.
On remand, King moved for a new trial on the remaining
counts under Federal Rule of Criminal Procedure 33(b)(1),
arguing, inter alia, that the OLC opinion amounted to newly
discovered evidence meriting retrial. The district court
denied this motion. On July 9, 2012, the court re-sentenced
King to an aggregate thirty-month prison term, plus three
years of supervised release, for his unlawful firearms dealing
conviction in Count 1 and his three false statement
convictions in Counts 3–5. This appeal followed.
DISCUSSION
A. Jury Instructions
We turn first to King’s contention that the district court
erred in rejecting his proposed jury instructions setting forth
a purported agency defense to the charge under 18 U.S.C.
§ 922(a)(1)(A). “A criminal defendant has a constitutional
right to have the jury instructed according to his theory of the
case, provided that the requested instruction is supported by
law and has some foundation in the evidence.” United States
10 UNITED STATES V. KING
v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011)
(citations and internal quotation marks omitted). We review
de novo whether an instruction is supported by law; we
review for abuse of discretion whether it has a foundation in
evidence. United States v. Anguiano-Morfin, 713 F.3d 1208,
1209 (9th Cir. 2013) (citation omitted).
King’s proposed instructions stated, in relevant part, that
he could not be convicted of unlicensed firearms dealing
unless the government proved that he was not “authorized to
act on behalf of another person or corporation that did have
a license as a firearms dealer.” King sought these instructions
so that he could argue to the jury that he was not guilty of
unlicensed firearms dealing because he only acted on behalf
of MHPS, a licensed corporate entity. We hold that the
district court properly refused King’s proposed agency
instructions.
We begin, as always, with the statutory text. See United
States v. O’Donnell, 608 F.3d 546, 549 (9th Cir. 2010); see
also United States v. Johnson, 680 F.3d 1140, 1144 (9th Cir.
2012) (“If the plain meaning of the statute is unambiguous,
that meaning is controlling[.]”) (citations omitted). Section
922(a)(1)(A) prohibits:
any person . . . except a . . . licensed dealer, to
engage in the business of . . . dealing in
firearms, or in the course of such business to
ship, transport, or receive any firearm in
interstate or foreign commerce.
18 U.S.C. § 922(a)(1)(A); see also 18 U.S.C. § 923(a) (“No
person shall engage in the business of . . . dealing in firearms
. . . until he has received a license to do so from the Attorney
UNITED STATES V. KING 11
General.”); 27 C.F.R. § 478.41(a) (2011) (“each person
intending to engage in business as . . . a dealer in firearms
shall, before commencing such business, obtain the license
required”). King’s argument that, as an authorized agent, he
was not included in the term “any person . . . except a . . .
licensed dealer” does not comport with the statute’s plain
language. The term “person” is defined to include “any
individual, corporation, company, association, firm,
partnership, or joint stock company.” 18 U.S.C. § 921(a)(1).
King, as an individual human being, is therefore a “person”
within the meaning of § 922(a)(1)(A).
King further suggests that, as an authorized agent for
MHPS, he was not “any person . . . except a . . . licensed
dealer”—he was a licensed dealer within the meaning of
§ 922(a)(1)(A). Interpreting the statute in this manner,
however, would undermine—if not emasculate—the
comprehensive licensing scheme designed by Congress. See
Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006)
(stating that courts may consider, inter alia, a “statute’s
overall purpose” to “illuminate Congress’s intent”). The Gun
Control Act of 1968, Pub. L. No. 90–618, 82 Stat. 1213
(codified as amended at 18 U.S.C. § 921 et seq.) was “aimed
at restricting public access to firearms.” Huddleston v.
United States, 415 U.S. 814, 824 (1974). To this end,
Congress required anyone wishing to “engage in the business
of . . . dealing in firearms” to obtain a federal firearms license
from the ATF. See 18 U.S.C. § 923(a); 27 C.F.R.
§ 478.41(a).
Not everyone can obtain a federal firearms license;
applicants must satisfy the myriad requirements set forth in
complex statutory provisions and dense federal regulations.
See generally 18 U.S.C. § 923 (licensing requirements);
12 UNITED STATES V. KING
27 C.F.R. § 478.44 (requirements for an original firearms
license). Corporate entities present a unique challenge in this
regard. While the Gun Control Act affords them the status of
legal personhood, it simultaneously recognizes the limits of
this legal fiction. To this end, any corporate applicant must
provide a wealth of information about each “responsible
person,” owner, and partner of the company.6 The purpose of
this information is to “enable[] ATF to look beyond the
corporate structure, to related persons and entities able to
direct the applicant’s operation and management” in
determining whether to approve a firearms license. XVP
Sports, LLC v. Bangs, No. 11-379, 2012 WL 4329263, at *10
(E.D. Va. Mar. 21, 2012) (affirming the ATF’s denial of a
license where a company deliberately transferred ownership
in an effort to avoid listing the true owner as a “responsible
person”).
King’s proposed agency instructions are at odds with the
Gun Control Act’s purpose and comprehensive nature. The
premise of his claim, if accepted, would allow King to skirt
federal law by incorporating a front corporation with a straw
principal, and then dealing firearms with impunity as a so-
called “agent” of the company. We are hard pressed to
6
Specifically, this information includes the individual’s full name, social
security number, every address over the past five years, telephone number,
position, country of citizenship, place of birth, sex, and race. Applicants
are further required to disclose whether any responsible person, owner, or
partner has previously held a FFL, has been denied a FFL, has worked for
a company that held an FFL as an officer or employee, or has had a FFL
revoked. Similarly, the application inquires as to whether any named
persons have been charged or indicted for a felony, are fugitives, are
unlawfully in the United States, are under 21 years old, are drug users or
addicts, and/or are subject to domestic restraining orders. See
Appendix A.
UNITED STATES V. KING 13
believe that Congress would have intended such an easy
workaround to such a complex, pervasive regulatory scheme.
Cf. Casanova Guns, Inc. v. Connally, 454 F.2d 1320, 1322
(7th Cir. 1972) (“[T]he fiction of a corporate entity must be
disregarded whenever it has been adopted or used to
circumvent the provisions of a statute.”).
Our conclusion is also consistent with the well-settled
principle that “an agent cannot be insulated from criminal
liability by the fact that his principal authorized his conduct.”
United States v. Fleischli, 305 F.3d 643, 652 (7th Cir. 2002)
(internal quotation marks omitted). To this end, the Seventh
Circuit’s decision in Fleischli offers helpful guidance. The
defendant in Fleischli was convicted of violating 18 U.S.C.
§ 922(o)(1), which imposes restrictions on the possession and
transportation of machineguns. Id. at 647. Fleischli, a
convicted felon, was not licensed to possess the firearm. Id.
Nevertheless, he insisted that his possession was lawful
because, at the time he possessed it, he was acting as an agent
of a corporation that was licensed to possess it. Id. at 652.
The court flatly rejected this argument. In upholding
Fleischli’s conviction, it reasoned that “a convicted felon who
could not have legitimately obtained a manufacturer’s or
dealer’s license may not obtain access to machine guns by
setting up a sham corporation.” Id. So too here, an agent
who could not have legitimately obtained a license to deal
firearms may not deal firearms by positioning himself as a
“consultant” for a licensee. Just as federal law did not permit
Fleischli to “immunize himself from prosecution” by “hiding
behind a corporate charter[,]” neither does it permit King to
escape liability by claiming that he was acting on behalf of
MHPS. Id.
14 UNITED STATES V. KING
Moreover, it bears emphasis that there is no factual
support for King’s putative agency defense in the record.
True, King may have been acting as an authorized agent for
MHPS when he filed the company’s articles of incorporation,
submitted its license paperwork, secured a lease, etc. But
these activities were not what gave rise to criminal liability
under § 922(a)(1)(A). The unlicensed firearms dealing
charge, rather, rested on King’s activities that rose to the level
of “engaging in the business of firearms dealing”—i.e.,
ordering, receiving, transporting, and attempting to sell
firearms. See 18 U.S.C. § 921(a)(21)(C). There is no
evidence showing that King was acting as an authorized
agent of MHPS when he engaged in these activities. To the
contrary, the record shows that King duped his business
partner, falsified documents, and misappropriated company
resources in his effort to deal firearms. We therefore agree
with the district court that King was not entitled to his
proposed jury instructions.
B. Sufficiency of Evidence Supporting King’s
Conviction for Unlawful Firearms Dealing
King next contends that the evidence was insufficient to
prove that he “engaged in the business” of dealing firearms,
as required by § 922(a)(1)(A). We disagree.
When properly preserved, we review sufficiency-of-
evidence challenges by asking whether, after 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. United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Here,
however, King failed to preserve his sufficiency-of-evidence
UNITED STATES V. KING 15
challenge. Accordingly, we apply plain-error review.7 See
United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011).
“Under plain-error review, reversal is permitted only when
there is (1) error that is (2) plain, (3) affects substantial rights,
and (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation omitted).
To prove that King “engaged in the business” of firearms
dealing, the government had to establish that he “engaged in
a greater degree of activity than the occasional sale of a
hobbyist or collector, and that [he] devoted time, attention
and labor to selling firearms as a trade or business with the
intent of making profits through the repeated purchase and
sale of firearms.” 18 U.S.C. § 921(a)(21)(C); see also Ninth
Circuit Model Instruction 8.53 (2010); United States v.
Breier, 813 F.2d 212, 214–15 (9th Cir. 1987). There is ample
evidence in the record from which a reasonable jury could
have drawn this conclusion. To wit, King incorporated and
funded a firearms business “on behalf” of a friend whose
American citizenship enabled the business to obtain a federal
firearms license. He then misappropriated the company’s
business account, using falsified documentation to set up
credit accounts and order firearms from manufacturers and
wholesalers behind his purported partner’s back. King
ordered nineteen firearms, including duplicates of the same
model. He received these firearms at the company’s office,
and transported them in his car during the middle of the night
to a storage unit just south of the Canadian border.
7
However, as we have observed, “it is hard to comprehend how [the
plain error] standard can be any more stringent in actuality than that
ordinarily applied to sufficiency-of-the-evidence challenges.” United
States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009).
16 UNITED STATES V. KING
Moreover, King held himself out as a firearms dealer. He
attempted to sell one firearm to a tenant in MHPS’s office
building and offered to provide another to his building
manager.8 King also sold ammunition and pistol magazines
and represented to the buyer that he was “buying and selling,
trading in guns, operating out of a company that was owned
by a friend of his in McMinnville[,]” and that he could
procure any item in a gun publication at a cheaper price. The
record also contained overwhelming evidence that King
repeatedly lied to customs and border officials about his true
purpose in entering the United States.
Taken together, this evidence is more than sufficient for
a rational jury to conclude that King was more than a mere
hobbyist. See 18 U.S.C. § 921(a)(21)(C). In arguing to the
contrary, King asserts that certain “evidence of
innocence”—namely, his role as an agent for Zarandi and the
fact that he was not listed as a “responsible person” on
MHPS’s license—would preclude a rational fact finder from
finding him guilty beyond a reasonable doubt. However, in
determining whether evidence is sufficient to support a
conviction, “the question is not whether the evidence
excludes every hypothesis except that of guilt but rather
whether the trier of fact could reasonably arrive at its
conclusion.” Nevils, 598 F.3d at 1165 (emphasis added).
8
We note that Section 922(a)(1)(A) does not require an actual sale of
firearms. See United States v. Nadirashvili, 655 F.3d 114, 120 (2d Cir.
2011) (stating that “the government’s burden under Section 922(a)(1)(A)
is to prove that the defendant has guns on hand or is ready and able to
procure them for the purpose of selling them from [time] to time to such
persons as might be accepted as customers”) (citation and internal
quotation marks omitted) (alteration in original).
UNITED STATES V. KING 17
Because the evidence, viewed in the light most favorable
to the government, demonstrates that King engaged in the
business of dealing firearms, there was no plain error.
C. Materiality of False Statements
King also challenges his convictions under 18 U.S.C.
§ 1001, which prohibits making false statements in any matter
within the jurisdiction of a federal department or agency.
King neither denies that he lied to border officials nor
disputes the jurisdictional predicate of the crime; he contests
only the materiality of his false statements.
Because materiality is an element of the offense, see
United States v. Selby, 557 F.3d 968, 977 (9th Cir. 2009),
whether a false statement is material to an agency decision is
a question properly resolved by a jury, rather than by the
court. United States v. Gaudin, 515 U.S. 506, 512, 522–23
(1995). The issue before us is therefore whether the
government presented sufficient evidence to support the
jury’s finding of materiality. See United States v. Serv. Deli
Inc., 151 F.3d 938, 941 (9th Cir. 1998). Because King failed
to move for a judgment of acquittal on this basis, we review
for plain error. Flyer, 633 F.3d at 917.
A misstatement is material for purposes of § 1001 if it has
“a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to
which it was addressed.” Gaudin, 515 U.S. at 509 (citation
omitted). A misstatement need not actually influence the
agency decision in order to be material; propensity to
influence is enough. See United States v. Facchini, 832 F.2d
1159, 1162 (9th Cir. 1987). Accordingly, our concern is not
with the extent of the agency’s reliance, but rather with the
18 UNITED STATES V. KING
“intrinsic capabilities of the false statement itself[.]” Serv.
Deli Inc., 151 F.3d at 941.
Here, two border officers testified that they might not
have admitted King into the United States had he disclosed
that his true purpose in entering the country was to engage in
firearms-related activities. Based on this evidence alone, a
rational jury could conclude that King’s misstatements had a
propensity to affect the officers’ decision about whether to
admit King into the United States. Indeed, we have found
lies to border agents material in cases involving more
attenuated connections between misstatements and agency
decisions. See, e.g., United States v. Chen, 324 F.3d 1103,
1104–05 (9th Cir. 2003) (holding that a defendant’s false
statement that he entered the country as a crewman on a
particular fishing boat was material under § 1001 because it
could have affected the government’s investigation of
smuggling and harboring of illegal aliens); United States v.
Rodriguez-Rodriguez, 840 F.2d 697, 700–01 (9th Cir. 1988)
(holding that a defendant’s false statement to a border patrol
officer that everyone in the car was a United States citizen
constituted a material misstatement under § 1001).
Relying solely on a dissent in an unpublished decision,
United States v. Howard, 430 F. App’x 569, 572 (9th Cir.
2011) (Tashima, J., dissenting), King contends that his lies to
CBP officers were immaterial because, as he was already the
target of an ICE investigation, officers would have admitted
him regardless, in order to further their investigation. King’s
argument, however, is foreclosed by numerous cases which
emphasize that actual influence is not required, so long as the
misstatement has a propensity to influence agency action.
See, e.g., Serv. Deli Inc., 151 F.3d at 941; Rodriguez-
Rodriguez, 840 F.2d at 700–01; Facchini, 874 F.2d at 643;
UNITED STATES V. KING 19
United States v. Vaughn, 797 F.2d 1485, 1490 (9th Cir.
1986).
In sum, we conclude that the evidence was more than
sufficient to prove the materiality element supporting King’s
§ 1001 convictions.
D. Motion for New Trial
King also appeals the denial of his motion for a new trial
under Federal Rule of Criminal Procedure 33. He argues that
the OLC opinion, which negated the viability of his alien-in-
possession conviction on Count 2, constitutes “newly
discovered evidence” warranting a new trial.
“We review a district court’s order denying a motion for
a new trial made on the ground of newly discovered evidence
for abuse of discretion.” United States v. Hinkson, 585 F.3d
1247, 1259 (9th Cir. 2009) (en banc). A new trial is not
warranted under Rule 33 unless a defendant can establish five
elements: “(1) the evidence is newly discovered; (2) the
defendant was diligent in seeking the evidence; (3) the
evidence is material to the issues at trial; (4) the evidence is
not (a) cumulative or (b) merely impeaching; and (5) the
evidence indicates the defendant would probably be acquitted
in a new trial.” United States v. Berry, 624 F.3d 1031, 1042
(9th Cir. 2010) (citation and internal quotation marks
omitted).
King cannot clear the first hurdle here. As we held in
United States v. Shelton, 459 F.2d 1005 (9th Cir. 1972), a
change in the law does not constitute newly discovered
evidence for purposes of Rule 33. Id. at 1006–07 (holding
that a change in the legal standard for determining insanity
20 UNITED STATES V. KING
did not amount to “newly discovered evidence”). Shelton
vitiates King’s assertion that the OLC opinion warrants
retrial.
Moreover, even if the OLC opinion constituted “newly
discovered evidence,” King’s argument would still fail.
Because the opinion pertains only to whether an alien-in-
possession conviction under § 922(g)(5)(B) applies to aliens
admitted without visas, King cannot establish that it was
material to the unlawful firearms dealing and false statements
charges. See Berry, 624 F.3d at 1042. And, because the same
evidence supporting the now-vacated alien-in-possession
conviction also supported the charge of unlawful dealing in
firearms, King’s assertion of unfair prejudice likewise fails.
CONCLUSION
We hold that the district court properly refused to instruct
the jury on King’s purported agency theory, that sufficient
evidence supported King’s firearms dealing and false
statement convictions, and that the district court did not abuse
its discretion in denying King’s motion for a new trial.
AFFIRMED.
APPENDIX A