and Submitted August 3, 2016 Pasadena, California
from the United States District Court No. 2:12-cr-00037-RGK-2
for the Central District of California R. Gary Klausner,
District Judge, Presiding
S. McLane (argued), Kaye McLane Bednarski & Litt LLP,
Pasadena, California, for Defendants-Appellants.
Michael Pellettieri (argued), Attorney, Appellate Section;
Sung-Hee Suh, Deputy Assistant Attorney General; Leslie R.
Caldwell, Assistant Attorney General; Kim Dammers, Deputy
Chief of Litigation, Organized Crime & Gang Division;
Margaret Vierbuchen, Attorney, Organized Crime & Gang
Division; Criminal Division, United States Department of
Justice, Washington, D.C.; for Plaintiff-Appellee.
Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
panel affirmed Cesar Ubaldo's conviction for illegally
importing weapons into the United States in violation of 18
U.S.C. §§ 371, 922(1), 924(a)(1)(C), and 22 U.S.C.
panel held that the district court correctly determined that,
considering the language and history of the legislation, the
weapons importation statutes, §§ 922(1) and
2778(b)(2), apply extraterritorially.
the aiding and abetting statute to the defendants'
conduct, the panel held that the district court properly
rejected the challenge to the sufficiency of the evidence to
support the jury's verdict.
panel held that the district court properly denied, after
conducting a Franks hearing, Ubaldo's
suppression motion in which he claimed that the search
warrant affidavit contained false and misleading statements.
Ubaldo's contention that the district court should have
dismissed the indictment due to an agent's failure to
preserve text messages, the panel held that the district
court did not clearly err in finding that Ubaldo failed to
establish bad faith.
panel held that the district court acted within its
discretion when it elected to issue a curative instruction
rather than granting a mistrial for a purported violation of
Fed. R. Crim. P. 16.
panel held that the district court did not abuse its
discretion in admitting evidence regarding Ubaldo's
previous smuggling conduct, which was relevant to show his
"intent, plan, knowledge or absence of mistake"; or
in allowing the government to introduce testimony regarding
the capabilities, usage, and source of the weapons. The panel
held that any error in allowing the weapons introduced into
evidence to remain in display in the courtroom was harmless.
panel held that the district court adequately instructed the
jury regarding the elements of causing the importation of
weapons into the United States under 18 U.S.C. § 2(b);
and that there is no merit to the defendants' contentions
that the district court's willfulness instruction was
incomplete, or potentially allowed the jury to convict the
defendants for merely facilitating or brokering the deals.
RAWLINSON, Circuit Judge.
Ubaldo (Ubaldo) appeals his conviction after he was found
guilty by a jury of illegally importing weapons into the
United States in violation of 18 U.S.C. §§ 371,
922(1), 924(a)(1)(C), and 22 U.S.C. §§
2778(b)(2). Ubaldo makes the following arguments on
1. The substantive offenses charged, violations of §
992(1) and § 2778(b), do not apply extraterritorially.
2. The evidence was insufficient to establish that Ubaldo
caused the illegal importation of weapons into the United
3. His motion to suppress should have been granted because
the search warrant was obtained through presentation of a
false and misleading affidavit.
4. The prosecution violated Federal Rule of Criminal
Procedure 16 by withholding material evidence.
5. The district court admitted improper character evidence
and unduly prejudicial evidence.
6. The district court should have dismissed the indictment
because the undercover agent failed to preserve text messages
related to the investigation.
7. The district court committed instructional error by
improperly instructing the jury on willfulness and causation;
failing to instruct the jury that Defendants could not be
convicted for acting as brokers; and improperly instructing
the jury that Defendants could be convicted on an aiding and
not persuaded that any reversible error occurred, and we
Statement of Facts
2010, the United States Federal Bureau of Investigation (FBI)
initiated an investigation into illegal arms smuggling from
the Philippines into the United States. Special Agent Charles
Ro (Agent Ro) was sent to the Philippines as an undercover
agent. He used the name Richard Hahn and posed as a
representative of organizations looking to acquire weapons
Ro was put into contact with Josh Hahn (Hahn), a broker for
weapons suppliers. Hahn introduced Agent Ro to Roland Dasias
(Dasias), who later sold Agent Ro twelve Bushmaster Rifles.
After Dasias refused to do any further business with Agent
Ro, Hahn introduced Agent Ro to Cesar Ubaldo, also known as
Arvi. Agent Ro told Hahn that he was seeking to purchase
high-powered weapons for the Mexican Mafia and Mexican drug
cartels. Ubaldo stated that he could acquire military vests
and high-powered weapons, some of which would come from Camp
Crame-a Philippine National Police military base. Ubaldo
followed up by emailing Agent Ro a list of firearms his
contacts had available for purchase.
Ro returned to the United States soon thereafter, but stayed
in contact with Ubaldo about a potential weapons sale. They
scheduled a meeting in the Philippines sometime during the
week of February 20, 2011. At the meeting, Agent Ro purchased
an M82 rifle for $30, 000.
following day, Syjuco called Agent Ro and offered to sell him
an M14 assault rifle. Syjuco also informed Agent Ro that he
could obtain more M82 rifles, as well as Rocket Propelled
Grenades (RPGs) and plastic explosives from Camp Crame.
Ro assured Ubaldo and Syjuco that he could safely store the
weapons in the Philippines, but would need help transporting
the weapons out of the Philippines. He stated that once the
weapons bypassed Philippines Customs, he could smuggle them
into California, and from there into Mexico. Ubaldo connected
Agent Ro with Arjyl Revereza (Revereza), a contact in
Philippine Customs. Syjuco confirmed that Revereza would
ensure the weapons bypassed Philippine Customs.
Ro returned to the United States, but remained in contact
with Defendants via phone and email. Syjuco emailed his
available inventory to Agent Ro. Agent Ro replied that he
would be back in the Philippines in early May, and they could
discuss further sales at that time. Before arriving, Agent Ro
ordered a mortar launcher, a grenade launcher, ten AK-47
assault rifles, and ten grenades.
these purchases were completed, Agent Ro discussed shipping
with Defendants and Revereza. Agent Ro had previously
described arranging for a shipping container to arrive at a
warehouse for transport to California. Agent Ro agreed to
take care of the shipping paperwork, but reiterated the
importance of bypassing customs. Revereza advised Agent Ro to
label the arms in the container as furniture.
12, 2012, Agent Ro and a few other undercover agents met with
Syjuco to prepare the weapons for shipping. Syjuco and his
bodyguard helped load the weapons into Agent Ro's
vehicle. Syjuco then helped package and transport the weapons
to the location of the shipping container. Agent Ro's
surveillance team captured Syjuco on video loading the
weapons into the shipping container. Agent Ro and other
agents filled out a Bill of Lading, completed the shipping
documents, labeled the goods as furniture destined for
California, and forwarded the Bill of Lading to
the container was shipped, FBI agents removed the grenades,
the plastic explosives, and the weapons' firing pins. The
agents then repackaged the weapons, sans firing
pins, and placed tracking devices on the container. On May
18, 2011, Revereza informed Agent Ro that the container had
successfully made it onto the ship. Later, Syjuco sent Agent
Ro a text message to see if the shipping was going as
ship was originally scheduled to travel from the Philippines
to Singapore to California. However, the ship was rerouted
through China. Special Agent Dennis Lao, the agent overseeing
the case, notified FBI agents in China that the container was
passing through. Agent Lao also notified United States
Customs in California that the ship would be arriving with a
container holding inoperable weapons that were part of an
ongoing investigation. The container arrived in the United
States on June 7, 2011.
were charged with conspiracy in violation of 18 U.S.C. §
(count 1), and causing the illegal importation of weapons
into the United States in violation of 18 U.S.C. §§
922(1),  ...