United States v. Peter Tran

FILED
NOT FOR PUBLICATION MAR 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10026
Plaintiff - Appellee, D.C. No. 3:97-cr-00239-MHP-2
v.
MEMORANDUM*
PETER TRAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted December 8, 2011
San Francisco, California
Before: O’SCANNLAIN, COWEN**, and BERZON, Circuit Judges.
Defendant-Appellant Peter Tran was indicted for illegally importing
weapons parts from Vietnam. Although the charges were eventually dismissed
with prejudice, the government destroyed the weapons parts upon which the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert E. Cowen, Senior Circuit Judge for the Third
Circuit, sitting by designation.
charges were based. The district court held that these weapons parts were
contraband and that Tran, therefore, was not entitled to their return or to
compensation for their destruction. We affirm.
Although a person from whom the government seizes property is ordinarily
entitled to its return, a motion for the return of such property may be denied “if the
[person] is not entitled to lawful possession of the seized property, the property is
contraband or subject to forfeiture or the government’s need for the property as
evidence continues.” United States v. Van Cauwenberghe, 934 F.2d 1048, 1061
(9th Cir. 1991). Treasury Department regulations, enacted pursuant to the Arms
Export Control Act, 22 U.S.C. § 2778(a)(1), prohibit the importation into the
United States of defense articles, including the weapons parts at issue here,
“originating in” Vietnam. 27 C.F.R. § 447.52(a).
The district court did not clearly err in determining that the weapons parts
originated in Vietnam. See United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir.
2008). Tran argues that the weapons parts originated not in Vietnam but rather in
Laos, where, he asserts, they had been stored for decades before being exported to
the United States. However, the bill of lading lists the “point and country of
origin” of the shipment as Vietnam. The sales contract for the parts lists Ho Chi
Minh City, Vietnam as the port from which the weapons parts were to be shipped.
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The weapons parts were fraudulently misidentified as machine parts, which
suggests that they were intended for illegal importation. And there is substantial
evidence in the record that Tran sought to enlist help from an undercover special
agent in getting the weapons parts out of Vietnam to the United States, despite the
Treasury Department regulation preventing such exportation.
Tran also maintains that even if the weapons parts were imported from
Vietnam, they were not imported to the United States, and they therefore fall
outside the scope of the Treasury Department regulation. This argument fails for
two reasons.
First, the district court did not clearly err in finding that “the cargo was
brought within the United States with the intention that it be unladed from the
ship.” The bills of lading stated that the defense articles were destined for
California. The misidentification of the weapons parts as machine parts indicates
that they were intended for illegal importation – that is, importation into the United
States – and not, as Tran argues, permissible importation – to, for example, Costa
Rica via Mexico. And there is a transcript of Tran discussing with an undercover
agent how to import the weapons parts into the United States despite the
prohibition on their importation. Given the substantial evidence that the weapons
parts were, in fact, intended for importation into the United States, the district court
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did not clearly err in finding that the defense articles were brought to the United
States with the intent to unlade them – that is, that Tran intended that they remain
permanently in the United States, and not that they end up elsewhere, such as
Mexico or Costa Rica.
Furthermore, even if the defense articles could be considered in transit while
they were in the United States, they would nevertheless be subject to the State
Department’s regulation on temporary imports. See 27 C.F.R. § 447.46. That
regulation states, in relevant part, that “[a]ny person who intends to export or
import temporarily a defense article must obtain the approval of the Directorate of
Defense Trade Controls prior to the export or temporary import.” 22 C.F.R. §
123.1. Tran did not obtain such approval, nor does he argue that the weapons parts
at issue qualified for any exemption from this requirement.
Thus, whether permanently or temporarily, the weapons parts were imported
into the United States from Vietnam in violation of Treasury Department
regulations prohibiting such importation. The record contains no evidence that
Tran applied for, let alone received, permission to import the weapons parts under
a regulatory exception allowing the importation of some defense articles as “curios
or relics.” See 27 C.F.R. § 447.52(e). The weapons parts were therefore
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contraband, and Tran is not entitled to their return nor to compensation for their
destruction.
AFFIRMED.
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