U.S. v. Alghazouli

• Citation: 517 F.3d 1179
• Decision Date: 04 March 2008
• Docket Number: No. 06-50422.,06-50422.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amar ALGHAZOULI, Defendant-Appellant.

517 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Amar ALGHAZOULI, Defendant-Appellant.

No. 06-50422.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2007.

Filed March 4, 2008.

Amar Alghazouli, pro se, Taft, CA, Benjamin L. Coleman, San Diego, CA, for the appellant.

Melanie K. Pierson, Roger W. Haines, Jr., Office of the U.S. Attorney, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CR-05-01148-JAH.

Before: BARRY G. SILVERMAN, W. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

Appellant Amar Alghazouli ("Alghazouli") was convicted by a jury on five counts arising out of unlawful importation of R-12 freon, an ozone-depleting substance. Three counts (Counts 1, 2, and 6) charged Alghazouli with violating 18 U.S.C. § 545. Section 545 prohibits fraudulent or knowing importation of merchandise "contrary to law," as well as the receipt, concealment, or sale of merchandise, or the facilitation of the transportation, concealment, or sale of merchandise, which the defendant knows to have been imported "contrary to law." The fourth count (Count 8) charged Alghazouli with conspiring to violate two money laundering statutes in violation of 18 U.S.C. § 1956(h). That count also charged, as a predicate offense for the money laundering offenses, a violation of 18 U.S.C. § 545. The fifth count (Count 15) charged Alghazouli with violating 42 U.S.C. § 7413(c)(1), based on his having knowingly violated a regulation prohibiting the sale of R-12 freon to an improperly certified person.

Alghazouli makes four arguments on appeal.

First, he argues that the term "law," as used in the phrase "contrary to law" in § 545, does not include a "regulation." Because all of the violations of § 545 charged in Counts 1, 2, 6, and 8 were based on violations of a regulation, Alghazouli argues that he did not violate § 545.

Second, he argues that even if a violation of "law" for purposes of § 545 includes violation of a regulation, the jury was improperly instructed as to the elements of the underlying money laundering offenses that were the objects of the conspiracy charged in Count 8.

Third, he concedes that knowing violation of the regulation at issue in Count 15 is criminal, but he argues that he did not knowingly violate that regulation.

Fourth, he argues that the district court erroneously applied 18 U.S.C. § 3553(a) in imposing the sentence.

For the reasons that follow, we affirm Alghazouli's convictions and sentence.

I. Background

Alghazouli and his two brothers, Ahed and Omran, were arrested and tried for activities involving the sale of R-12 freon unlawfully imported from Mexico. Alghazouli was tried separately.

Witnesses at Alghazouli's trial testified that R-12 freon was purchased cheaply in Mexico, brought into the United States without inspection, and then sold to automotive supply dealers. There was evidence that Spanish text on the canisters indicating their Mexican origin was removed before sale. One witness testified that in 1999 a canister of R-12 freon could be purchased in Mexico for between $150 and $185 and then sold in the United States to automotive supply shops for $300 to $450, well below the standard American price of $850 to $1200.

Alghazouli's brother Ahed ran a wholesale automotive supply business. Evidence at trial showed that Ahed was involved in the importation of R-12 freon from Mexico as part of his business. The government presented evidence that Alghazouli was responsible for various activities connected with Ahed's business, that each of the three brothers involved was referred to as "Al," and that all three carried business cards for "United Auto Supply, Wholesale." Four automotive shop owners testified that Alghazouli was the "Al" from whom they had purchased R-12 freon.

An undercover agent for the government testified that he telephoned Alghazouli and requested R-12 freon, and that Alghazouli did not ask if he had the certificate necessary to purchase the freon. He testified that when Alghazouli delivered four canisters of R-12 freon to him, he explained to Alghazouli that he did not have a license, and Alghazouli responded, "Don't worry about it. Just don't mention any licensing." He testified that Alghazouli told him to "play dumb" if anyone asked him about a license.

II. Standard of Review

We review de novo the meaning of the term "law" in § 545. See Beeman v. TDI Managed Care Servs., 449 F.3d 1035, 1038 (9th Cir.2006). Alghazouli's Rule 29 motion was premised on an argument about the meaning of the term "law," not on sufficiency of the evidence grounds, requiring this de novo review. See United States v. Baxley, 982 F.2d 1265, 1268 (9th Cir.1992).

We review for plain error the district court's failure to instruct on the elements of money laundering in Count 8 because Alghazouli did not object to the instructions in the district court. See United States v. Ching Tang Lo, 447 F.3d 1212, 1228 (9th Cir.2006).

We review de novo the meaning of the term "knowingly" in 42 U.S.C. § 7413(c)(1). See United States v. Pasillas-Gaytan, 192 F.3d 864, 868-69 (9th Cir. 1999).

Finally, we "review `the district court's interpretation of the Sentencing Guidelines de novo" and "the district court's application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion[.]'" United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006) (citation omitted).

III. Discussion

We consider in turn the four issues raised by Alghazouli in this appeal.

A. The Meaning of the Term "Law" in § 545

Alghazouli was convicted on three counts of violating 18 U.S.C. § 545 and one count predicated on that violation. As stated, § 545 provides that anyone who "fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law," is subject to fine and imprisonment for up to twenty years. 18 U.S.C. § 545, par. 2 (emphases added). See, e.g., Roseman v. United States, 364 F.2d 18, 23-27 (9th Cir. 1966). All four counts were premised on Alghazouli's violation of 40 C.F.R. § 82.4, a regulation promulgated under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. ("CAA"). Section 82.4 prohibits the importation of "class I" controlled substances. R-12 freon is a class I controlled substance. The question before us is whether violation of 40 C.F.R. § 82.4 is a violation of "law" within the meaning of § 545.

For the reasons that follow, we conclude that Congress intended the term "law" in § 545 to include a regulation when, but only when, a statute (a "law") specifies that a violation of that regulation constitutes a crime. We further conclude that the CAA specifies that violation of § 82.4 is a crime. We therefore affirm Alghazouli's convictions on Counts 1, 2, and 6. We also affirm his conviction on Count 8, subject to our analysis in the following section concerning the jury instructions for that count.

1. Plain Meaning of "Law"

We begin with the text of § 545. See Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc) ("`[W]e look first to the plain language of the statute ... to ascertain the intent of Congress.'") (citations omitted). In common usage, the term "law" does not always, or perhaps even usually, include a "regulation." The 2004 edition of Black's Law Dictionary defines "law" narrowly as "a statute." But it also defines "law" more broadly as "[t]he aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply[.]" Black's Law Dictionary 900 (8th ed.2004). Definitions in earlier editions of Black's are similar. See, e.g., Black's Law Dictionary 796 (5th ed.1979). Comparable definitions appear in Webster's Third New International Dictionary 1279 (1993). We therefore conclude that the term "law" does not have a plain meaning that necessarily includes a "regulation."

2. History of § 545

Because "law" does not have a single clear meaning discernible from the text alone, we look to the history of § 545. "Where, as here, . . . different interpretations can be reconciled with the statutory language, our duty is `to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.'" United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 827 (9th Cir.1989) (quoting Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 78 L.Ed.2d 420 (1984) (further quotation marks and citations omitted)); see also Edwards v. Aguillard, 482 U.S. 578, 594, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) ("The plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history, can control the determination of legislative purpose."). As the Supreme Court has stated, there is no "fixed principle that a regulation can never be a `law' for purposes of criminal prosecutions. It may or may not be, depending on the structure of the particular statute." Singer v. United States, 323 U.S. 338, 345, 65 S.Ct. 282, 89 L.Ed. 285 (1945).

a. Meaning of "Law" in the 1866, 1922, and 1930 Tariff Acts

Section 545 is the latest version of a provision that was first enacted as Section 4 of the Tariff Act of 1866. Section 4 prohibited the fraudulent or knowing importation of merchandise "contrary to law," as well as the receipt, concealment, or sale of such merchandise or facilitating the...