United States v. Ghanem

• Citation: 993 F.3d 1113
• Decision Date: 12 April 2021
• Docket Number: No. 19-50278,19-50278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rami GHANEM, AKA Rami Najm Asad-Ghanem, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

993 F.3d 1113

UNITED STATES of America, Plaintiff-Appellee,

v.Rami GHANEM, AKA Rami Najm Asad-Ghanem, Defendant-Appellant.

No. 19-50278

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2021 Pasadena, California

Filed April 12, 2021

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant.

Alexander P. Robbins (argued), Assistant United States Attorney; L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Danny J. Boggs,^* Milan D. Smith, Jr., and Mary H. Murguia, Circuit Judges.

BOGGS, Circuit Judge:

Rami Ghanem, a Jordanian-born, naturalized United States citizen, is an international arms dealer. The Department of Homeland Security captured him in Greece in an undercover sting operation, and the government obtained an indictment against him in the Central District of California in Los Angeles. After his extradition from Athens to Los Angeles (by way of New York), the government then brought additional arms-dealing charges against him, including 18 U.S.C. § 2332g, which carries a 25-year minimum sentence. Mr. Ghanem pleaded guilty to all but that one charge, which he tried to a jury. After the jury convicted him, the district court sentenced him to 30 years of imprisonment.

But the government tried Mr. Ghanem in the wrong place. When he landed at John F. Kennedy International Airport, in custody, venue was laid in the Eastern District of New York for the § 2332g charge even though the government had not yet brought it. The government later asked for an erroneous jury instruction on venue, which the court gave, over Mr. Ghanem's objection. Although Mr. Ghanem had waived his challenge to the indictment for improper venue by failing to bring it before the pretrial-motions deadline, under our precedent he was still entitled to a correct instruction on venue. The error was harmful, and we must therefore vacate his conviction.

I. Background

A. Arrest, Extradition, and Indictment

While living in Egypt, Mr. Ghanem ran a Jordanian company called Gateway to MENA (short for "Middle East and Northern Africa"), which dealt in military supplies and offered what he termed logistics services. His wares included body armor, a wide variety of weapons both small and large, ammunition, gadgets for electronic warfare, and so on. But his trade was not entirely on the up-and-up. He would smuggle armaments under false customs declarations, calling them "juice" or "fruits," and bribe officials for (or outright forge) the end-user certificates necessary for legal shipment of weapons.

Eventually, Mr. Ghanem's dealings came to the attention of Homeland Security Investigations (HSI). In 2014, an HSI undercover agent contacted Mr. Ghanem and began gathering evidence against him through email, Skype chats, and in-person meetings. In the meantime, in May 2015, a HSI special agent based in Los Angeles got a warrant to search Mr. Ghanem's Gmail account. By August 2015, Mr. Ghanem had placed an order through the undercover agent to illicitly export dozens of weapons, thousands of rounds of ammo, and three night-vision devices from the United States to Libya. On December 8, 2015, the undercover agent brought Mr. Ghanem to a warehouse in Athens, Greece, ostensibly to inspect the shipment as it was en route to Libya. Having been alerted by the United States, Greek authorities arrested him at the warehouse. Greek authorities seized numerous electronic devices from Mr. Ghanem's person and hotel room. The United States government would later take possession of those devices and examine them forensically.

Later that December, Mr. Ghanem was indicted in the Central District of California, where the shipment of purported weapons from the undercover agent had originated. The indictment alleged one count of violating the Arms Export Control Act (specifically, 22 U.S.C. § 2778(b)(2) ), one count of smuggling, in violation of 18 U.S.C. § 554, and two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(2)(A).

In April 2016, Mr. Ghanem was extradited from Greece. Mr. Ghanem claims that he agreed not to appeal his extradition on the condition that he reserved his specialty rights—that is, to be prosecuted only for the charges specified in his extradition order. On April 25, 2016, the United States Marshals took him, in custody, by plane from Greece to JFK Airport in Queens, New York. After changing planes, he flew to Santa Ana, California. From there, he was detained in the Central District of California until trial.

On March 24, 2017, the government obtained a superseding indictment in the Central District of California, which added three new counts against Mr. Ghanem. (It obtained from the Greek government an extension of his extradition order—that is, permission to try him for these additional offenses beyond those listed in the original order.) The first new count was for conspiracy to violate the Arms Export Control Act, in violation of 18 U.S.C. § 371. The second was an additional substantive count of violating the Arms Export Control Act (specifically, 22 U.S.C. § 2778(b)(1) ). And the third was for violating 18 U.S.C. § 2332g —the charge at issue on appeal.

Section 2332g, broadly, prohibits illicit dealings in guided surface-to-air missiles. Subsection (a) lists the specific banned conduct, subsection (b) specifies five so-called "jurisdictional" conditions, at least one of which must be met for the conduct in subsection (a) to be criminal. And subsection (c) provides that "[a]ny person who violates, or attempts or conspires to violate, subsection (a) ... shall be sentenced to a term of imprisonment not less than 25 years or to imprisonment for life."

Mr. Ghanem was charged with a conspiracy to violate subsection (a), and the jurisdictional hook alleged was his United States citizenship. In particular, he was charged with trying to procure or offering to sell Igla and Strela surface-to-air missiles and missile launchers. And from March to June of 2015, he allegedly sought operators for an Igla missile system, negotiated these operators’ salaries (including bonuses for actually shooting down planes), and procured their travel to Libya.

B. The Proceedings Below

After the superseding indictment, there was extensive pretrial discovery (including three overseas depositions presided over by the district judge himself in Israel and Georgia) as well as several motions. Mr. Ghanem moved for a bill of particulars as to the § 2332g charge and to dismiss the indictment for alleged violations of due process—but, relevant here, he did not move to dismiss the indictment for improper venue. The district court denied those motions.

After the pretrial-motions deadline, the government moved the district court to take judicial notice of Mr. Ghanem's location at the time of his arraignment on count 3 of the superseding indictment. The court granted that motion. Finally, shortly before trial, Mr. Ghanem pleaded guilty to the other six counts against him, leaving only the § 2332g count for trial.

After the close of the government's eight-day case-in-chief, Mr. Ghanem moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal, raising the venue problem for the first time. The government responded that Mr. Ghanem had waived his venue objection by failing to raise it before the pretrial motions deadline under Federal Rule of Criminal Procedure 12(c). In the alternative, the government argued that venue was proper under 18 U.S.C. § 3238 because Mr. Ghanem was detained in the Central District of California when he was indicted and arraigned on the § 2332g charge; thus, it was there that he was first restrained of his liberty in connection with that offense . The district court denied the Rule 29 motion without elaborating on its reasoning.

In the meantime, the parties had been conferring on jury instructions. The government objected to Mr. Ghanem's proposed venue instruction and proposed one of its own. A few versions later, defense counsel eventually expressed no objection to the government's proposed venue instruction, which read, in relevant part: "The government must also show by a preponderance of the evidence that defendant was arrested, or first restrained of his liberty, in connection with this offense in the Central District of California." But after argument on the Rule 29 motion, the government expressed concern that Mr. Ghanem would argue his venue theory to the jury. The district court suggested that the government propose a jury instruction, which it did: "Arrests, restraint or detention in a foreign country is irrelevant to your determination of whether venue is appropriate in this district."

After the defense's brief case, the district court heard argument on the government's proposed addition to the venue instruction. The government argued that Mr. Ghanem would mislead the jury by arguing that his arrest in Greece was in connection with the offense currently on trial. Mr. Ghanem objected to the instruction, contending that the government was well aware of any of his dealings in surface-to-air missiles by the time he was arrested. The district court found that the defense's argument would mislead the jury and agreed to give the government's revised instruction.

So instructed, the jury returned a unanimous guilty verdict after several hours of deliberations. Mr. Ghanem moved for a new trial under Federal Rule of Criminal Procedure 33 or to dismiss the indictment on several grounds, including improper venue, constructive amendment of the indictment, that the 25-year mandatory minimum sentence was cruel and unusual punishment, and the court's lack of jurisdiction under the extradition treaty between Greece and the United States. The district court denied these motions, holding that the venue and jurisdiction arguments were waived as untimely and also ruling...