FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

v.

GABRIEL RIVERO,

Defendant-Appellant.

Nos. 17-10114

17-10115

D.C. Nos.

4:16-cr-00713-FRZ-BGM-1

4:08-cr-00771-FRZ-BGM-2

OPINION

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted March 12, 2018

San Francisco, California

Filed May 2, 2018

Before: Richard A. Paez and Sandra S. Ikuta, Circuit

Judges, and Eric N. Vitaliano,* District Judge.

Opinion by Judge Ikuta

* The Honorable Eric N. Vitaliano, United States District Judge for

the Eastern District of New York, sitting by designation.
2 UNITED STATES V. RIVERO

SUMMARY**

Criminal Law

The panel affirmed a conviction for attempting to

smuggle ammunition from the United States, in violation of

18 U.S.C. § 554(a), and the revocation of the defendant’s

supervised release from a prior conviction. 

Section 554(a) imposes criminal penalties on whoever

fraudulently or knowingly exports or attempts to export any

“merchandise, article, or object” contrary to any law or

regulation of the United States. At trial, the defendant

objected to the jury instructions and the prosecutor’s closing

argument, contending that § 554(a) required the government

to prove that the defendant knew he was exporting

ammunition. The panel held that the district court did not err

in overruling those objections, because § 554 does not require

the government to prove that the defendant knew the nature

of the “merchandise, article, or object” that the defendant was

exporting contrary to law.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIVERO 3

COUNSEL

Christopher L. Scileppi (argued), Law Offices of Christopher

L. Scileppi PLLC, Tucson, Arizona,forDefendant-Appellant.

Angela Walker Woolridge (argued), Assistant United States

Attorney; Robert L. Miskell, Appellate Chief; Elizabeth A.

Strange, First Assistant United States Attorney; United States

Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

Gabriel Rivero appeals his jury conviction for attempting

to smuggle ammunition from the United States, in violation

of 18 U.S.C. § 554(a), which imposes criminal penalties on

“[w]hoever fraudulently or knowingly exports . . . or attempts

to export . . . any merchandise, article or object contrary to

any law or regulation of the United States.” At trial, Rivero

objected to the jury instructions and the prosecutor’s closing

argument, contending that § 554(a) required the government

to prove that Rivero knew he was exporting ammunition. We

conclude that the district court did not err in overruling those

objections, because § 554 does not require the government to

prove that the defendant knew the nature of the “merchandise,

article, or object” that the defendant was exporting contrary

to law. 18 U.S.C. § 554(a).

I

On February 11, 2016, Gabriel Rivero was driving a

pickup truck from the United States into Mexico at the
4 UNITED STATES V. RIVERO

Mariposa Port of Entry in Nogales, Arizona. When his truck

passed a speed bump approximately 300 meters from the

border, a spare tire fell from the back of his vehicle. Rivero

attempted to load the tire back into the truck, but he

eventually moved it to the side of the road instead and drove

away, entering Mexico. U.S. Customs and Border Protection

cameras captured the incident. Officers dispatched to the

abandoned tire observed ammunition on the ground next to

the tire and more ammunition visible through a rupture in the

tire. In total, officers recovered 5,441 rounds of ammunition

from the scene.

Approximately one hour after the officers were notified

of the tire, Gabriel Rivero’s brother, Sergio, drove the same

truck through the same port of entry, coming from Mexico,

and officers seized the vehicle. While officers were

interviewing Sergio, Gabriel Rivero, returning to the United

States on foot, was identified through security camera

footage. Officers found that Gabriel lacked authority to

export the ammunition.

On March 12, 2016, Gabriel Rivero entered the United

States again and was detained by law enforcement. Rivero

initially invoked his Miranda rights, but later asked to speak

with the officers as they were preparing to transport him to

county jail. Officers showed Rivero pictures of the truck, the

tire, and the ammunition. Rivero admitted that he had been

driving the truck when the incident occurred. One of the

officers, investigator Daniel Chaves asked, “Why would you

choose to transport weapons and ammunition?” Rivero

responded, “It was ammo.” Chaves then asked Rivero, “Why

did you choose to transport ammo?” Rivero responded that

he “couldn’t find a job,” and was offered $500 to transport

the ammunition.
UNITED STATES V. RIVERO 5

On April 6, 2016, the government charged Rivero on two

counts: (1) smuggling goods from the United States under

18 U.S.C. § 554(a), 22 U.S.C. § 2778, and 22 C.F.R.

§§ 121.1, 123.1; and (2) possession of ammunition by a

convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2). 

Count 1 alleged that Rivero had “knowingly attempted to

export and send from the United States any merchandise,

article, or object contrary to any law or regulation of the

United States,” and listed the various types of ammunition

recovered. Count 1 further alleged that the export of such

ammunition was contrary to 22 U.S.C. § 2778 and 22 C.F.R.

§§ 121.1, 123.1 and therefore in violation of 18 U.S.C.

§ 554(a). Rivero moved to sever Count 2 and the district

court granted the motion.

A three-day jury trial on Count 1 was held in December

2016. At trial, Rivero presented evidence to show that he

lacked “knowledge prior to transporting [the truck] that there

was ammunition in the vehicle,” but rather “only learned that

there was ammunition in the vehicle once the wheel fell out”

and ruptured. At the close of the evidence, Rivero moved for

a directed verdict, which the district court denied. The

district court then outlined the proposed jury instructions, to

which Rivero did not object.

In closing argument, the government argued that the

evidence showed that Rivero knew he was smuggling

something that was illegal. Rivero’s counsel objected on the

ground that Count 1 required that a person “kn[o]w he was

transporting weaponry, armaments, munitions across the

line,” and that the government had to prove that Rivero knew

he was smuggling ammunition. The district court overruled

this objection.
6 UNITED STATES V. RIVERO

The district court then instructed the jury that the

elements of the offense for 18 U.S.C. § 554(a) were as

follows:

First, the defendant knowingly attempted to

export and send from the United States any

item, or received, concealed, bought, sold, or

in any manner facilitated the transportation,

concealment or sale of the item prior to

exportation;

Second, the defendant knew the item was

intended for exportation, and

Third, the exportation of the item is contrary

to any law or regulation of the United States.

Rivero’s counsel objected to this instruction on the same

ground, and the district court again overruled it.

The jury returned a guilty verdict on Count 1 and the

government dismissed Count 2. Rivero was sentenced to

92 months imprisonment, followed by 3 years of supervised

release. Because Rivero’s conviction violated the terms of

supervised release from a prior felony conviction, his

supervised release from that conviction was revoked and he

was given a 10-month sentence for the prior conviction, to

run concurrently with his sentence for his violation of

§ 554(a).

II

The district court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 28 U.S.C. § 1291. We review
UNITED STATES V. RIVERO 7

de novo “whether the jury instructions accurately define the

elements of a statutory offense.” United States v. Chi Tong

Kuok, 671 F.3d 931, 945 (9th Cir. 2012) (quoting United

States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001)).

Rivero’s principal argument on appeal is that the district

court failed to instruct, and the government failed to prove,

the requisite mens rea to convict a defendant under 18 U.S.C.

§ 554(a) for exporting items contrary to 22 U.S.C. § 2778 and

the associated regulations. Section 554(a) makes it unlawful

to knowingly export or attempt to export “any merchandise,

article, or object contrary to any law or regulation of the

United States.”1 Section 2778 imposes registration and

licensing requirements on the export of certain munitions and

makes it illegal to export those munitions without a license.

22 U.S.C. § 2778(a), (b)(1), (b)(2). The applicable

regulations designate the types of ammunition that are subject

to the requirements of § 2778(b)(2) and require a person who

intends to export such items to obtain government approval

prior to export. See 22 C.F.R. §§ 121.1, 123.1(a). Section

1

 Section 554(a) provides in full:

Whoever fraudulently or knowingly exports or sends

from the United States, or attempts to export or send

from the United States, any merchandise, article, or

object contrary to any law or regulation of the United

States, or receives, conceals, buys, sells, or in any

manner facilitates the transportation, concealment, or

sale of such merchandise, article or object, prior to

exportation, knowing the same to be intended for

exportation contrary to any law or regulation of the

United States, shall be fined under this title, imprisoned

not more than 10 years, or both.

18 U.S.C. § 554(a).
8 UNITED STATES V. RIVERO

2778(c) provides that “[a]ny person who willfully violates

any provision of this section . . . shall upon conviction be

fined for each violation not more than $1,000,000 or

imprisoned not more than 20 years, or both.” 22 U.S.C.

§ 2778(c).

Rivero makes two arguments regarding mens rea. First,

Rivero argues that when the government prosecutes a

defendant under § 554(a) for exporting items contrary to

§ 2778, the government must prove that the defendant knew

that the exported items were arms, munitions, or military

equipment as specified in § 2778 and the associated

regulations. Second, Rivero argues that in such a

prosecution, § 554(a) incorporates the mens rea of § 2778(c),

such that the government must prove that the defendant

smuggled such items “willfully,” not just “knowingly” as

stated in § 554(a).

The Supreme Court has provided guidance on how to

interpret and apply the term “knowingly” in a criminal statute

such as § 554(a). See, e.g., Dixon v. United States, 548 U.S.

1, 5 (2006) (stating that “unless the text of the statute dictates

a different result, the term ‘knowingly’ merely requires proof

of knowledge of the facts that constitute the offense,” as

opposed to proof that the defendant “acted with knowledge

that his conduct was unlawful.”) (quoting Bryan v. United

States, 524 U.S. 184, 193 (1998)). As we have explained,

“absent clear indicia of congressional intent to the contrary,

an interpretation of ‘knowingly’ in a criminal statute” should

be consistent with two basic principles. United States v.

Crowder, 656 F.3d 870, 874 (9th Cir. 2011). First, the

interpretation “should require the government to prove the

defendant’s knowledge of the facts that constitute the

offense.” Id. Second, “knowingly” in a criminal statute
UNITED STATES V. RIVERO 9

should not be interpreted to “criminalize a broad range of

apparently innocent conduct.” Id. (quoting Liparota v.

United States, 471 U.S. 419, 426 (1985)).

Construing § 554(a) in accord with these principles, we

reject Rivero’s argument that the government had to prove

that Rivero knew the exact nature of the items he attempted

to export. First, the facts that constitute the offense are the

export of “any merchandise, article, or object contrary to any

law or regulation.” 18 U.S.C. § 554(a). Nothing in the

language of the statute requires knowledge of the nature of

the merchandise, article, or object. If Rivero knew that the

truck contained merchandise that was unlawful to export, but

elected not to look in the truck, he would meet the

requirements of § 554(a) of knowing that he was exporting

“merchandise . . . contrary to law.” Second, applying

“knowingly” in this manner does not “criminalize a broad

range of apparently innocent conduct.” Liparota, 471 U.S. at

426.

By contrast, interpreting § 554(a) to require the

government to prove that the defendant knew the nature of

the “merchandise, article or object” would lead to the absurd

result that individuals could avoid criminal liability simply by

being willfully blind to the precise nature of the goods they

were unlawfully exporting or attempting to export. We avoid

giving such “absurd or irrational” interpretations. United

States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013); see also

United States v. Casasola, 670 F.3d 1023, 1029 (9th Cir.

2012) (“[W]e do not impute to Congress an intent to create a

law that produces an unreasonable result.”).

Because § 554(a) does not require the government to

prove that the defendant knew the nature of the “merchandise,
10 UNITED STATES V. RIVERO

article, or object” that the defendant was exporting or

attempting to export “contrary to any law or regulation,” the

district court did not err in overruling Rivero’s objections to

either the jury instructions or the government’s statement of

the law during closing arguments.2

Rivero raises two arguments to the contrary. First, Rivero

argues that United States v. Cardenas, 810 F.3d 373 (5th Cir.

2016) (per curiam) requires the government to prove

knowledge of the identity of the item as an element of

§ 554(a). We disagree. Cardenas involved a defendant

convicted of violating 18 U.S.C. § 554(a) for attempting to

export ammunition in a manner contrary to 22 U.S.C. § 2778.

Id. at 374. On appeal, the defendant argued that “the district

court should have instructed the jury that, to find him guilty

of violations of § 554(a) (smuggling from the United States),

it must find that he violated 22 U.S.C. § 2778(c) (control of

arms exports and imports), with the specific intent to violate

the law.” Id. The defendant conceded “that he believed that

the ammunition was destined for Mexico,” and “that the

evidence would allow a finding that he suspected that the

exportation of ammunition was illegal or that he was acting

in reckless disregard of whether his actions were illegal.” Id.

at 375. Because the defendant conceded that he knew he was

exporting ammunition, the Fifth Circuit did not consider

whether § 554(a) required the government to prove this

knowledge. Rather, the Fifth Circuit rejected the defendant’s

argument the government had to prove specific intent, i.e.,

that the defendant knew that § 2778 required that he have an

export license. Instead, the Fifth Circuit held that “to

2 Rivero does not argue that the district court erred in instructing the

jury that he did not need to know that exporting the “merchandise, article

or object” was unlawful, so we do not reach this issue.
UNITED STATES V. RIVERO 11

establish an offense under § 554(a), the Government is

required to prove only that the defendant knew he was

dealing with ammunition that was intended for export and

that the exportation was illegal.” Id. at 374. Accordingly,

Cardenas provides no support for Rivero’s argument that the

government had to prove he knew he was exporting or

attempting to export ammunition; rather, it supports our

conclusion that the government need not prove that a

defendant had specific intent to violate § 2778.

We also reject Rivero’s argument that § 554(a)

incorporates the mens rea of “willfully” from § 2778(c). 

Although § 2778(c) imposes criminal penalties on “[a]ny

person who willfully violates” the registration and licensing

requirements applicable to persons intending to export certain

munitions, 22 U.S.C. § 2778(c) (emphasis added), Rivero was

not charged with violating § 2778. Rather, Rivero was

charged with violating § 554(a) by exporting items contrary

to law, which requires the mens rea of knowingly exporting

such items. The government proved this element of the

§ 554(a) offense by establishing that Rivero knowingly

exported ammunition without a license, in violation of

§ 2778(b). The government did not have to prove the

elements necessary to convict Rivero under § 2778(c),

because conviction under § 2778(c) is not an element of the

offense of violating § 554(a).

Accordingly, we affirm both Rivero’s conviction and his

revocation of supervised release.

AFFIRMED.