U.S. v. Kiriki

• Decision Date: 05 April 1985
• Docket Number: No. 83-1246,83-1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nobuo KIRIKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1449

756 F.2d 1449

UNITED STATES of America, Plaintiff-Appellee, v. Nobuo KIRIKI, Defendant-Appellant.

No. 83-1246.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 14, 1984.

Decided April 5, 1985.

Frank J. Marine, Washington, D.C., for plaintiff-appellee.

Michael Levine, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before FAIRCHILD, Senior Circuit Judge, ^* and GOODWIN and BOOCHEVER, Circuit Judges.

FAIRCHILD, Senior Circuit Judge:

Defendant-appellant Nobuo Kiriki appeals from his sentence following conviction by a jury of conspiring to transport stolen property of a value of $5,000 or more in foreign commerce in violation of 18 U.S.C. Sec. 2314 and to export, by means of smuggling, firearms designated on the United States Munitions List (22 C.F.R. Sec. 121.01) to Japan without a license in violation of 22 U.S.C. Sec. 2778 and the regulations issued thereunder (22 C.F.R. Secs. 121.01 et seq.), all in violation of 18 U.S.C. Sec. 371. We affirm.

The indictment charged that Nobuo Kiriki, Henry Matsumoto ¹ and others unknown conspired to commit the stolen jewelry and firearm smuggling offenses. It charged twelve overt acts in furtherance. Most of these were telephone calls and other conversations with an undercover police officer (identified at trial as Alan Anami of the Honolulu Police). These conversations occurred from January 2 to 16, 1980.

The case was submitted to the jury on a carefully drawn special verdict. By its answers, the jury found that each defendant had conspired to transport stolen jewelry and to smuggle firearms as charged. The jury specified nine overt acts which it found had been committed.

Except for admissions of Matsumoto, redacted so as to incrimate only himself and inadmissible against Kiriki, the evidence consisted of the testimony of Anami, the undercover police officer, concerning his conversations with defendants, and tape recordings of many of them. The Government's theory, consistent with the allegations in the indictment, was that the January conversations, in which defendants negotiated for Anami's furnishing jewelry and firearms, and smuggling the latter, constituted evidence from which a conspiracy between defendants could be inferred, as well as overt acts to carry out its objects.

FACTS

Anami met defendant Henry Matsumoto in August of 1979. Another undercover police officer pretended to sell stolen jewelry and camera equipment to Anami in Matsumoto's presence. Anami paid $240 for the merchandise which was worth $2,000. Matsumoto asked Anami why he had paid only $240. Anami told him the merchandise was stolen and that he came into stolen jewelry all the time. Matsumoto then offered to sell such stolen jewelry for Anami. Matsumoto also said that he and a friend were looking for guns and if Anami should come into .38's, .45's or .357's, Matsumoto would be interested in buying them.

Almost five months later, on January 2 and 3, 1980, Matsumoto called Anami's message service and left messages for Anami to call him. On January 3 Anami returned the calls. Matsumoto told Anami he and a friend were interested in buying some jewelry to be sold to Japanese citizens going back to Japan. They arranged to meet later that day.

Anami met Matsumoto at 5:00 PM January 3 at Nevada Bob's Discount Golf Shop (Nevada Bob's) where Kiriki and Matsumoto both worked. In a tape recorded conversation Matsumoto told Anami that some people were interested in 100 magnum firearms being delivered to Japan and diamonds, emeralds and rubies to take back to Japan where they would "unload" the merchandise. Matsumoto indicated that his "customers" would be in town until the 6th, had unloaded stuff before and would be back every three months to buy such jewelry. Anami said he could obtain such merchandise, the price would be from fifteen to twenty-five percent of retail and it would be "super hot." Matsumoto replied "thats why they buying 'em ... they know its goin' be hot."

Kiriki joined Anami and Matsumoto during the course of this conversation. Matsumoto On January 4, 1980, in an unrecorded telephone conversation, Anami told Kiriki that he had some stolen jewelry to show him. Later that same day Anami met Kiriki at Nevada Bob's. Their conversation was tape recorded. Anami showed Kiriki some jewelry and gemstones, indicating he was unable to obtain any diamonds. Anami told Kiriki the merchandise was stolen and couldn't be taken to an unknown jeweler to be checked because it might be recognized. Kiriki indicated that he understood. Kiriki told Anami that the jewelry he brought would be too hard to sell; he was interested in more expensive stones, diamonds and emeralds, valued at $5,000 or higher.

advised Kiriki that Anami would be able to obtain stolen jewelry. Anami discussed the need in obtaining an appraisal to go to a jeweler they could trust not to identify the jewelry as stolen. Matsumoto also stated that he had some friends who wanted to buy one hundred .357 magnums to be delivered to Japan. The three arranged to discuss these matters further the next day.

Kiriki also told Anami at this meeting that he needed 100 magnum handguns. Anami replied that he would discuss the matter with his contact, and Kiriki said he would talk to Matsumoto the next day.

On January 14 Officer Anami made two recorded telephone calls to Nevada Bob's. In the first he talked with Kiriki and said he had something to show him. Kiriki asked him to come to Nevada Bob's but Anami declined and said he would call back later. In the second call, Kiriki answered and put Matsumoto on the telephone. Anami and Matsumoto arranged to meet so Matsumoto could examine some firearms.

On January 15 Officer Anami met Matsumoto at the Beretania Saimin Restaurant. The meeting was audio and video recorded. Anami told Matsumoto that he had forty to fifty magnum caliber handguns, forty .25 caliber semi-automatic firearms and .38 caliber revolvers for sale. Anami told Matsumoto that if they could handle the forty .25 caliber guns his boss would give them a crack at the .38's. Matsumoto said he was primarily interested in .357 magnum handguns because the buyers in Japan wanted guns that could penetrate bullet proof vests.

Anami told Matsumoto that the .25 caliber semi-automatic handguns would cost $200 each if delivered in Honolulu and $500 each if delivered to Japan. Anami added that he would need $3,000 to bribe a Customs official in Japan, and that one-half the purchase price and bribe money would be paid before the guns left Honolulu and the remainder paid when the guns were successfully smuggled into Japan. Anami told Matsumoto that the serial numbers on the firearms would be removed in Japan and he would package the firearms to conceal them.

Anami and Matsumoto left the restaurant and walked to Anami's car where Anami showed Matsumoto ten .25 caliber Raven semi-automatic handguns, the same type as the 40 firearms that Anami told Matsumoto he would deliver to Japan. Matsumoto indicated he would talk to Kiriki and then give Anami a call.

Later that same day Anami telephoned Nevada Bob's and spoke to Matsumoto. Matsumoto told Anami he was waiting to hear from his people as to whether they wanted the guns delivered in Honolulu or smuggled to Japan. Anami called back later and Matsumoto told him they wanted the second way, i.e., smuggled to Japan and they had agreed to Anami's terms. Matsumoto arranged to meet Anami the next day.

On January 16, 1980 Officer Anami met Matsumoto at the Bakery Kapiolani Restaurant. The meeting was audio and video recorded. Matsumoto told Anami that his people were going to buy the guns, but that they wanted someone from Japan to come to Honolulu, see the guns, make the payment and accompany Anami to Japan to deliver the firearms. They then discussed in greater detail the previously outlined terms of the transaction for the .25 caliber firearms.

Matsumoto and Anami talked about Kiriki as a part of this deal, mentioned that Kiriki was going to negotiate the next deal himself and that the cut would be greater on that deal and that Kiriki would give Matsumoto his cut of this deal. Matsumoto indicated that "they" were going through with this deal in order to make a second deal to purchase .357 magnums. He indicated that the first purchase (of the .25 semi-automatics) was a "goodwill buy."

Later that same day Anami telephoned Nevada Bob's. In a taped conversation, Matsumoto stated that he told Kiriki the terms of the agreement. The three of them arranged to meet later at the Village Inn Restaurant.

Before the Village Inn meeting, Anami testified that he again spoke to Matsumoto in an unrecorded telephone conversation. Matsumoto told Anami that his Japanese associates were short of the full purchase price for the semi-automatic firearms. Matsumoto added that the firearms were to be used by a "family organization" in Japan, and Kiriki was attempting to contact another family organization in Osaka, Japan to sell them the .25 caliber handguns.

The Village Inn meeting was audio and video recorded. Anami reiterated the terms of the .25 caliber firearm sale. Kiriki indicated that he understood and agreed to the terms for the delivery of the .25 caliber firearms to Japan. Matsumoto and Kiriki told Anami they were interested in magnum caliber firearms and asked about the price. Anami said he would call the next day with the price.

Kiriki cautioned Anami "they no trust you." Kiriki told Anami that people had gotten caught smuggling guns into Japan and every time the guns were confiscated by Customs. Anami said he was able to smuggle the guns by bribing Customs officials and it was being done daily.

On January 17 Officer Anami had two recorded telephone conversations with Matsumoto. In the first Anami told Matsumoto that 100 magnum firearms would cost $750 each. Matsumoto said Kiriki would call Japan later and...