Wednesday, January 18, 2012
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Court Upholds California Venue in Arms Trafficking Prosecution
But Ninth Circuit Panel Throws Out Convictions, Sends Case Back for Retrial
By SHERRI M. OKAMOTO, Staff Writer
An undercover federal agent’s action of cashing a money order for the illegal purchase of munitions at a bank in San Diego allowed the would-be buyer to be tried in Southern California, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an opinion by Judge Jay S. Bybee, the appellate panel explained that the government’s unilateral activity, performed without the knowledge of Chi Tong Kuok, was sufficient for venue to attach.
Joined by Judge Harry Pregerson and assigned Senior District Judge Glen H. Davidson of the Northern District of Mississippi, Bybee ruled that Kuok can be retried in the U.S. District Court for the Southern District of California after throwing out Kuok’s convictions for conspiracy to export defense items without the required license; buying such items knowing they were intended for export contrary to U.S. law; attempting to export such items without the required license, and money laundering.
Kuok is a citizen of Macau, a special administrative region of the People’s Republic of China and, until recently, a colony of Portugal.
Between 2006 and 2009, the government alleged that Kuok had tried to purchase equipment commonly used by the U.S. military, including a device used to transfer data to and from aircraft manufactured by a British corporation. Records subpoenaed by investigators also indicated that Kuok had bought two-way radios from a seller in Los Angeles, via eBay.
Kuok was arrested in 2009 by U.S. Immigration and Customs Enforcement agents at an airport in Atlanta after attempting to purchase a device called the KG-175 Taclane Encryptor offered for sale on eBay by an Arizona company.
Undisputed Facts
At trial before U.S. District Judge Roger T. Benitez of the Southern District of California, Kuok did not dispute the government’s version of events or the fact that the exportation of the items he had purchased required a permit which he did not possess. He also acknowledged that his actions had violated U.S. law, and rested his entire defense strategy rested on a theory of duress.
He claimed that a businessman who identified himself as a Chinese cultural official had pressured him into signing a note promising to locate and purchase certain items that could not be obtained in China.
Kuok asserted that he had begged to be released from his promise, but he and his family were threatened, and he was presented with evidence his family was being followed. He said he was informed that a family member would be arrested and held in a “black jail”—where the Chinese government sends people to “take [them] off the grid”—if he refused to hold up his end of the bargain.
Benitez found the proffered evidence insufficient to support a duress defense and the case proceeded to trial. A jury found Kuok guilty on all counts, and he was sentenced to 96 months on counts two through four, and 60 months on count one, to run concurrently.
Venue Argument
On appeal, Kuok argues that venue for his trial and conviction was not proper because the government “manufactured venue” in the Southern District of California by its own activities.
Bybee noted that the Fourth Circuit has rejected this principle, and while the Ninth Circuit has not yet addressed the issue, it need not be decided since this case could be disposed of by other means.
He explained that Second Circuit precedent addressing “manufactured jurisdiction” was not persuasive since jurisdiction and venue are different, and noted that the Ninth Circuit previously held in United States v. Bagnariol, (1981) 665 F.2d 877, that the “manufactured jurisdiction” rule has been “limited to cases involving ‘extreme’ law enforcement tactics.”
Borrowing this standard, Bybee reasoned there was “nothing ‘extreme’ about an ICE undercover operation, based in San Diego, deciding to cash Kuok’s money order in a bank in San Diego.”
He concluded, “[t]herefore, because part of the conduct that formed the offense occurred in the Southern District of California, even if that conduct was performed by an undercover government agent, venue there was proper.”
The jurist went on to explain that the district court had lacked jurisdiction over the money laundering charge against Kuok since the government did not establish that the transaction involved funds of a value exceeding $10,000, as required by 18 U.S.C. § 1956(f).
Bybee also said that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and the panel accordingly directed that Kuok’s conviction for attempting to export the items he had bought be vacated.
The panel additionally concluded that the district court should have allowed Kuok to present evidence of duress to the jury, and directed his convictions be reversed and remanded for retrial on the charges of conspiracy to export defense items without the required license and buying such items for export.
The case is United States v. Kuok, 10-50444.
Copyright 2012, Metropolitan News Company