United States v. King, 12–30235.

• Decision Date: 15 November 2013
• Docket Number: No. 12–30235.,12–30235.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Oliver KING, aka Hamid Malekpour, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

735 F.3d 1098

UNITED STATES of America, Plaintiff–Appellee,

v.Oliver KING, aka Hamid Malekpour, Defendant–Appellant.

No. 12–30235.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2013.

Filed Nov. 15, 2013.

Terrence Kellogg, Seattle, WA, for Defendant–Appellant.

Michael S. Morgan (argued), Assistant United States Attorney, and Jenny A. Durkan, United States Attorney, United States Attorney's Office, Seattle, WA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 2:10–cr–00168–JLR–1.

Before: SIDNEY R. THOMAS and JACQUELINE H. NGUYEN, Circuit Judges, and RAYMOND J. DEARIE,

District Judge.^*

OPINION

NGUYEN, Circuit Judge:

Oliver King appeals his convictions for unlawfully dealing in firearms, in violation of 18 U.S.C. § 922(a)(1)(A), and making false statements to customs officials to gain entry into the United States, in violation of 18 U.S.C. § 1001. With regard to his conviction for unlawfully dealing in firearms, King contends that the district court erred in refusing to give his proposed jury instructions, which required the government to prove that King was not acting as an authorized agent of a federal firearms licensee. In an issue of first impression in our circuit, we hold that King is not entitled to such an instruction. Because we also find that King's remaining contentions—that the evidence was insufficient, and that the district court abused its discretion in denying his motion for a new trial—lack merit, we affirm.

Background

A. Factual Background

Oliver King, born Hamid Malekpour, is an Iranian-born Canadian citizen and self-described firearms enthusiast. In January 2009, during a flight from Amsterdam to Tehran, King bonded with Amir Zarandi, an Iranian-born United States citizen, over their shared passion for guns.

Although King purportedly ran an ammunition manufacturing business in Vancouver, Canada, he was not permitted to lawfully deal firearms in either the United States or Canada. As a non-immigrant alien, King was ineligible for a license to deal firearms in the United States. He was eligible for a license in Canada, but his license had been revoked. Three months after he and Zarandi met, King invited Zarandi to Vancouver. During the visit, King drove Zarandi to a building where King's company was purportedly located. When Zarandi asked to go inside, King made excuses and did not permit Zarandi to enter. At King's apartment, King showed off his gun collection and introduced Zarandi to his “wife,” Rebecca Reznick, whom King claimed to have met when they served together in the Israeli Intelligence. (In fact, she was his girlfriend whom he met on J-date.) Zarandi indicated that he was interested in getting into the firearms business, but didn't know very much about it. King proposed, and Zarandi agreed, to have King do the “legwork” to help Zarandi set up a firearms business in the United States.

In May 2009, King secured a one-room office in McMinnville, Oregon,¹ and incorporated an entity called McMinnville Hunting and Police Supply (“MHPS”). MHPS's articles of incorporation listed King, using the pseudonym “O. Ki,” as its registered agent. King paid the incorporation fee and lease with Reznick's credit card.

As support for MHPS's federal firearms license (“FFL”) application, Zarandi mailed King copies of his social security card and certificate of naturalization. In June 2009, King submitted the application on behalf of MHPS. The application listed Zarandi, identified as the company's CEO, as the sole “responsible person.” ² Approximately two months later, King flew Zarandi to McMinnville to meet with an investigator from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) about the license. During this meeting, Zarandi and King informed the investigator that King would “not be part of the business, that Amir [Zarandi] would solely be the owner/operator of the business.”

MHPS's application was subsequently approved and, in October 2009, an investigator contacted Zarandi to inquire as to whether he had received the license. Zarandi said he had not, but indicated that his “consultant” might have. King later contacted the investigator, identifying himself as “Oliver Ki.” During the phone call, King repeatedly used the term “we” when referring to MHPS. When the investigator questioned his involvement, King chalked it up to his “broken English,” reiterating that he was only a consultant. Weeks passed, and Zarandi still had not heard whether MHPS's license had been approved. So he called King, who said he would look into it. Within a few hours, Zarandi received the license via e-Fax.

According to Zarandi, King was eager to buy guns once the license was secured. Zarandi agreed to order five semi-automatic rifles from LWRC International (“LWRC”).³ After this transaction, Zarandi also agreed to let King “use the company” in order to buy items which did not require a federal firearms license, such as optics and scopes.

But King wanted more. Before long, he began purchasing firearms behind Zarandi's back. Unbeknownst to Zarandi, King submitted credit applications on MHPS's behalf to multiple firearms suppliers, providing them with copies of the license on which Zarandi's signature had been forged. On one occasion, King even posed as Zarandi, setting up an email account in Zarandi's name to submit paperwork with Zarandi's forged signature. Using this falsified documentation, King ordered nineteen additional firearms—semi-automatic rifles, pistols, shotguns, and sniper rifles—as well as magazines and thousands of rounds of ammunition.

Although there was no evidence that King successfully sold any firearms, ⁴ King offered to procure them for others on at least two occasions. First, he offered to supply a “weapon or gun” to David Potter, the property manager of MHPS's office building, bragging that he could get it at a cheap price. When Potter said he was interested in a “44 mag,” King replied, “No problem.” King also offered to sell David Seward a handgun. After Seward told King that he was interested in a Glock 9mm handgun, King invited Seward into the MHPS office, showed him a Glock that was for sale, and offered it to Seward for about $500. The sale was never consummated, but Seward subsequently called King to inquire about purchasing three other firearms.

Between May 2009 and May 2010, King entered the United States from Canada on eighteen separate occasions. Fifteen of these times he was referred for secondary inspection.⁵ During his interactions with Customs and Borders Protection (“CBP”) officials, King repeatedly lied about his reasons for entering the United States, concealing his firearms-related activities. For instance, on November 8, 2009, King told CBP officers that he was going to meet his father-in-law and wife at a Costco store in Bellingham, Washington. Instead, he drove to MHPS's office in McMinnville, Oregon.

Similarly, on March 15, 2010, King entered the United States after telling a CBP officer that he was going to a nearby Costco to buy a camcorder. ICE agents followed him as he continued to drive south to Marysville, Washington, at which point they discontinued surveillance. The next day, King rented a storage unit in Ferndale, Washington (located approximately twenty minutes from the Canadian border). His rental paperwork listed MHPS's corporate office as his address of record.

On May 18, 2010, King presented a brand new passport to a CBP officer at a different port of entry, claiming he was heading to Bellingham, Washington, to pick up his wife at Target. However, agents followed him as he drove directly to Oregon, arriving at MHPS's office in McMinnville the next morning. There, they observed King loading several large boxes into his car before driving back north to his U–Haul storage unit.

Agents searched King's vehicle and storage unit and recovered twenty-one firearms, assault-rifle magazines, and ammunition. King's laptop contained a number of incriminating documents, including the following: digital copies of credit applications submitted to firearms dealers on MHPS's behalf that contained Zarandi's forged signature; an unsigned letter from “A. Zarandi” confirming King's employment with MHPS; copies of Zarandi's social security card and certificate of naturalization; articles of incorporation for MHPS; and an unsigned copy of MHPS's federal firearms license.

B. Procedural History

King was indicted on charges of unlawfully dealing in firearms (Count 1); unlawful possession and/or transportation of firearms and ammunition by an alien (Count 2); and three counts of making false statements to a government agency, namely border customs officials (Counts 3–5). Prior to trial, he requested jury instructions that stated, in relevant part, that the government was required to prove King was not acting as an agent “of another person or corporation that did have a license as a firearms dealer” in order to convict him of unlawfully dealing in firearms. The district court refused to provide these instructions.

Following a six-day trial, a jury convicted King on all five counts. He subsequently appealed. While his appeal was pending, however, the Department of Justice's Office of Legal Counsel (“OLC”) issued an opinion that negated the legal theory supporting King's alien-in-possession conviction on Count 2. The government conceded that this conviction could not stand, and we remanded for re-sentencing on the remaining counts.

On remand, King moved for a new trial on the remaining counts under Federal Rule of Criminal Procedure 33(b)(1), arguing, inter alia, that the OLC opinion amounted to newly discovered evidence meriting retrial. The district court denied this motion. On July 9, 2012, the court re-sentenced King to an aggregate thirty-month prison term, plus three years of supervised release, for his unlawful firearms dealing...