United States v. Ghanem, No. 19-50278 (9th Cir. 2021)
Annotate this Case
The Ninth Circuit vacated defendant's conviction and sentence for conspiracy to violate 18 U.S.C. 2332g, which prohibits illicit dealings in guided surface-to-air missiles. Defendant, a Jordanian-born, naturalized United States citizen, and an international arms dealer, was captured by DHS in Greece in an undercover sting operation. Defendant was extradited from Athens to Los Angeles, by way of New York. The government subsequently asked for an erroneous jury instruction on venue, which the district court gave, over defendant's objection.
The panel concluded that, although defendant waived his challenge to the indictment for improper venue by failing to bring it before the pretrial motions deadline, he was still entitled to a correct instruction on venue. The panel explained that when defendant landed at John F. Kennedy International Airport, in custody, venue was laid in the Eastern District of New York for the section 2332g charge even though the government had not yet brought it. The panel concluded that the error was harmful because a reasonable juror could have found it more likely than not that defendant's restraint in Greece really was in connection with the alleged section 2332g offense, and thus his conviction must be vacated. Finally, the panel applied plain error review and disposed of defendant's remaining claims regarding extraterritoriality, the doctrine of specialty, and due process. The panel remanded for further proceedings.
Court Description: Criminal Law The panel vacated a conviction for conspiracy to violate 18 U.S.C. § 2332g, which prohibits illicit dealings in guided surface-to-air missiles; vacated the sentence; and remanded for further proceedings. In an undercover sting operation, the Department of Homeland Security captured the defendant, a naturalized United States citizen, in Greece, and the government obtained an indictment against him in the Central District of California. Neither party disputes that all of the defendant’s alleged conduct took place outside the United States. The defendant contends that because he was “arrested” in Greece and “first brought” to the Eastern District of New York, venue under 18 U.S.C. § 3238 would lie only in the Eastern District of New York and was improper in the Central District of California. The panel held that under Fed. R. Crim. P. 12, the defendant, who did not bring a pre-trial motion alleging improper venue, waived that venue challenge. The panel explained that because the venue defect is apparent from the face of the indictment, his first objection to venue—in his motion for acquittal after the close of the government’s case—was untimely. UNITED STATES V. GHANEM 3 The panel held that the defendant preserved his challenge to the propriety of the district court’s jury instruction—that “[a]rrests, restraint or detention in a foreign country were irrelevant to [the jury’s] determination of whether venue is appropriate in this district.” The panel wrote that according to this court’s precedent, the defendant’s Rule 12 waiver of venue did not preclude his separate jury-instruction challenge. The panel reviewed de novo whether the instruction correctly stated the law, and explained that if a jury could reasonably find that the defendant’s arrest in Greece was connected to the alleged § 2332g offense, the district court’s instruction that foreign arrest, restraint, or detention was irrelevant to the jury’s determination would have misstated the law. The panel held that the instruction was erroneous because (1) the government has conceded in the district court that the conduct for which the defendant was arrested was very similar to that for which he was charged in the count at issue, (2) government agents were actively investigating the defendant at the time of his arrest for the conduct that would later be the basis of that count, and (3) the facts support a view that the government tried to manipulate venue in this case. The panel concluded that the error was harmful because a reasonable juror could have found it more likely than not that the defendant’s restraint in Greece really was in connection with the alleged § 2332g offense. On plain error review, the panel disposed of the defendant’s arguments (1) that § 2332g(b)(2)’s assertion of jurisdiction over him as a United States national does not apply to a conspiracy charge under § 2332g(c), or (2) that, if it does as a matter of correct statutory interpretation, then Congress does not have authority to legislate 4 UNITED STATES V. GHANEM extraterritorially on the basis of only United States nationality. The panel held that the defendant waived his claim based on the doctrine of specialty by failing to raise it before trial without good cause. The panel declined to order dismissal of the § 2332(g) charge based on the defendant’s due-process challenges. The panel noted that citizenship alone is a sufficient connection with the United States to permit the application of its criminal laws to a citizen’s conduct overseas. Lacking sufficient briefing, the panel deemed waived on appeal the defendant’s due-process argument that he “justifiably relied on” an agreement he made with the Greek government not to appeal his extradition on the condition that he would be prosecuted only for the charges for which it surrendered him to the United States. The panel likewise deemed waived on appeal the defendant’s argument that the government’s ex parte request to the Greek government to consent to his prosecution for violating § 2332g violated due process because he lacked counsel or an opportunity to be heard.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.