Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Ubaldo

United States Court of Appeals, Ninth Circuit

June 9, 2017

United States of America, Plaintiff-Appellee,
v.
Cesar Paolo Ubaldo, AKA Arvi, AKA Cesar Paolo Inciong Ubaldo, Defendant-Appellant.

          Argued and Submitted August 3, 2016 Pasadena, California

         Appeal 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

          David S. McLane (argued), Kaye McLane Bednarski & Litt LLP, Pasadena, California, for Defendants-Appellants.

          John 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.

         SUMMARY[*]

         Criminal Law

         The 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. § 2778(b)(2).

         The 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.

         Applying 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.

         The 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.

         Rejecting 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.

         The 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.

         The 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.

         The 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.

          OPINION

          RAWLINSON, Circuit Judge.

         Cesar 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).[1] Ubaldo makes the following arguments on appeal:

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 States.
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 abetting theory.

         We are not persuaded that any reversible error occurred, and we affirm.

         I. BACKGROUND

         A. Statement of Facts

         In 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 illegally.

         Agent 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.

         Agent 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.

         The 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.

         Agent 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.

         Agent 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.

         After 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.

         On May 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 Revereza.[2]

         Before 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 planned.

         The 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.

         B. Procedural History

         Defendants were charged with conspiracy in violation of 18 U.S.C. § 371[3] (count 1), and causing the illegal importation of weapons into the United States in violation of 18 U.S.C. §§ 2, [4] 922(1), [5] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.