F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

G A B R I E L R I V E R

O , D efendant-Appellant. Nos. 17-10114 17-10115

D.C. Nos. 4:16-cr-00713-F RZ -B GM-1 4:08-cr-00771-F RZ -B GM-2

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na F rank R. Z a

pata, Senior District J udg e, Presiding

Arg ued and Submitted March 12, 2018 San F rancisco, California

F iled May

2, 2018

B efore: Richard A. Paez

and Sandra S. I kuta, Circuit J udg e s, and Eric N. Vitaliano, * District J udg e.

Opinion by J udg e I k

uta

* T h e Ho n o rab le Eric N

. Vital i a n o , U nited States District J u d g e f or th e Eastern District o f

New Yo rk , sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. R I V E R O 2

SUMMARY * *

Crim inal Law

The panel affirmed a conviction for a ttempting to

s mug g le ammunition from the United States, in violation of 18 U.S.C. § 554(a), and the revoca t i o n of the defendant’s supervised release from a prior conviction.

Section 5 54(a) imposes criminal pe n a lties on whoever fraudulently or knowing ly ex ports or attempts to ex port any “merchandise, article, or ob j e c t ” contrary to any law o r reg ulation o f the United States. At tri a l
, the defendant objected to the jury instructions and the prosecutor’s closing
arg ument, contending that § 554(a) required the g overnment to prove that the d e f

endan t k n e w he was e x porting ammunition. The panel held that the district court d id not err in o verruling those objections, b ecause § 554 does not require the g overnment to prove that the defendant kn e w the nature of the “merchandise, article, or object” that the defendant was

ex p orting contrary

to law.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. R I V E R O 3

COUNSEL

Christopher L

. Scileppi (arg ued), L aw Offices of Christopher L

. Scileppi PL L C, Tucson, Ar i zo n a , f o r D e f e n d a nt-Appellant.

Ang ela W a lker W oolridg e (arg ued), Assistant United States Attorney ; Robert L

. Miskell, Appellate Chief; Eliz a b e th A

. Strang e, F irst Assistant United States Attorney ; United States Attorney ’s Office, Tucson, Ariz ona; for Plaintiff-Appellee.

OP INION

I KUTA, Circuit J udg e:

Gabriel Rivero appeals his jury conviction for attempting
to smug g le ammunition from the United States, in v i o l a tion of 18 U.S.C. § 554(a), which imposes criminal penalties on “[ w] hoever fraudulently o r knowing ly ex ports

. . . or attempts t o e x p o rt

. . . any merchandise, article or object contrary t o any law or reg

ulation of the United States.” At trial, Rivero objected to the jury instructions a n d the prosecutor’s closing
arg ument, contending that § 554(a) required the g overnment to p rove that Rivero knew h e was ex porting a mmunition. W e conclude that the district court did not err in overruling those objections, because § 554 does not require the g overnment to prove that the defendant knew the nature o f the “merchandise,

a r t i c le, or object” that the defendant w as ex p orting contra r y to law. 18 U.S.C. § 554(a).

I

On Fe b r uary 11, 2016, Gabriel Rivero was driving a p i c k u p truck from the U nited States into Mex ico at t h eU N I T E D S T A T E S V

. R I V E R O 4

Mariposa Port of Entry in N og ales, A riz ona. W hen his truck passed a speed bump approx imately 300 meters from the border, a spare tire fell from the back of his vehicle. Rivero attempted to load the tire b ack into the truck, bu t he eventually moved it to the side of the road instead and drove
away , e ntering Mex ico. U.S. Customs and B order Protection

cameras captured the incident. Officers dispatched t o the abando n e d tire observed ammunition on the g round nex t to the tire and more ammunition visible throug h a rupture in the tire. I n total, officers recovered 5,441 rounds of ammunition from the scene.

Approx imatel y o n e hour after the officers were notified of the tire, G abriel Rivero’ s b r o t h er, Serg io, drove the same truck throug h the same port of ent r y , coming from Mex ico, and officers seiz e d the veh i c l e

. W hile officers were interviewing Serg io, Gabriel Rivero, returning to the United States on foot, was identified throug h security camera footag e. Officers found that Gabriel l a c k ed a uthority to

ex p ort the ammunition.

On March 12, 2 016, Gabriel Rivero entered th e U nited States ag ain and was detained by law enfor c e ment. Rivero initially invoked his Miranda rig hts, but later asked to speak with the officers a s they were preparing to transport him to county jail. Officers showed Rivero pictures of the truck, the tire, and the ammu n i t i o n

. Rivero admitted that he had been driving the truck when the incident o ccurred. One of the officers, investig ator Daniel Chaves asked, “W hy would y ou choose to transport weapons and ammunition? ” Rivero responded, “I t was ammo.” Chaves then asked Rivero, “W h y did y ou choose to transport ammo? ” Rivero responded that h e “ c o u ldn’t find a job,” and was offered $500 to transport the ammunition.U N I T E D S T A T E S V

. R I V E R O 5

On April 6, 2016, the g overnment charg ed Rivero o n two counts: (1) smug g ling g oods f rom the United S t ates 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 b y a convicted felon under 18 U.S.C. §§ 922(g )(1), 924(a)( 2 ). Count 1 a lleg ed that Rivero had “knowing ly attempted to

ex p ort and send from the United States any merchandise, article, or obje c t contrary to any law or reg ulation of the United States,” a

nd listed the various ty

pes of a m m u nition recovered. C o u nt 1 further alleg ed that the ex port 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 C o u n t 2 and the district court g ranted the motion.

A three-day jury trial on C o u n t 1 was held in December 2016. At trial, Rivero presented evidenc e t o s h o w that he lacked “knowledg e prior to transporting [ the truck] that there

was a mmunition in the vehicle,” but rather “only learned that there w as ammunition in the vehicle once the wheel fell o ut” and ruptured. At the close of the evidence, Rivero moved for

a d irected verdict, which the district co u r t d enied. The district court then outlined the proposed jury instructions, to which Rivero did not object.

I n closing a r gu ment, the g overnment arg ued that the evidence showed that Rivero knew he was smug g ling something that was illeg al. Rivero’s counsel objected on the
g round that Count 1 required that a person “kn[ o ] w h e w a s transporting wea

p o nry , armaments, munitions across the line,” and that the g overnment had to prove that Rivero knew he was smug g ling ammunition. The d istrict court overruled this objection.U N I T E D S T A T E S V

. R I V E R O 6

The d istrict court th e n i n structed the jury that the elements of the offense for 18 U .S.C

. § 554(a) were a s follows:

F irst, the defendant knowing ly attempted to

ex p ort and send from the United St a t e s any item, or received, concealed, boug ht, sold, o r in a ny manner facilitated t h e transportation,

c o n cealment or sale of the item p rior t o

ex p ortation;

Second, the defendant kne w the item was intended for ex portation, and

Third, the ex portation of the item is contrary to any law or reg

ulation of the United States.

Rivero’s c ounsel objected to this instruction on the same g round, and the district court ag ain overruled it.

The jury returned a guilty verdict o n Count 1 and the
g overnment dis m i s s e d Count 2. Rivero was sentenced to 92 months imprisonment, followed b y 3 y ears of supervised release. B ecause Rivero’s c o n v iction violated the terms o f supervised release from a prior fel ony conviction, his supervised r elease from that con viction was revoked and he

was g iven a 1 0-month sentence f o r the prior c onviction, to

run concurrently with h is sentence f o r h is v iolation o f § 554(a).

I I

The d istrict court h ad jurisdiction under 18 U.S.C. § 3231. W e have j u r isdiction under 28 U.S.C. § 1291. W e r eviewU N I T E D S T A T E S V

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de novo “whether the jury instructions a ccurately define the elements of a s t a t u tory offense.” United States v. Chi Tong Kuok
, 671 F .3d 93 1, 945 (9th Cir. 2012) (quoting United States v. Summers , 268 F .3d 683, 687 (9th Cir. 2001)).

Rivero’s principal arg

ument on appeal is that the district
court failed to i n s t ruct, and the g overnment failed to prove, the r equisite mens rea to convict a defendant under 18 U .S.C. § 554(a) for e x porting items contrary to 22 U.S.C. § 2778 a nd the associated reg ulations. Section 554(a) makes it unlawful
to knowing ly ex port or attempt to ex port “any m e r chandise, arti c l e , o r object contrary to any law or reg ulation of the United States.” 1 Section 2778 imposes reg istration a nd licensing requirements on the ex p ort of certain munitions a nd makes it illeg al to e x p o r t t hose munitions without a license. 22 U.S.C. § 2778(a), ( b)(1 )
, ( b ) ( 2). The applicable
reg ulations desig nate the ty pes of ammunition that a

re subject
to the requirements of § 2778(b)(2) and require a person w ho intends to ex port such items to o btain g overnment approval prior to e x port. See 22 C.F .R. §§ 121.1, 1 2 3

. 1(a). Section

1 Sectio n 5 5 4 (a) p ro v id es in

f u ll:

W h oev er f

rau d u len tly o r k

n o w i n g ly ex

p o r t s o r sen d s f ro m th e Un ited States, or attem p ts to ex p o rt o r sen d f ro m th e Un ited S tates, an y m erch an dise, article, or

o b j ect co n trary to an y law o r reg u latio n o f th e Un ited States, o r receiv es, co n ceals, b u y s, sells, o r in an y

m an n er f acilitat e s th e tran sp ortatio n , co n cealm en t, or sale o f su ch m erch an d ise, article o r ob j ect, p rio r to

ex p ortati o n , k

n ow in g th e sam e to b e in ten d ed f or

ex p ortati o n co n trary to an y law o r reg u latio n o f th e Un i ted States, sh all b e f

in ed u n d er th is title, im

p riso n ed

n o t m o re th an

1 0 y ears, o r b o th

.

1 8 U.S.C. § 5 5 4 (a).U N I T E D S T A T E S V

. R I V E R O 8

2778(c) provides that “[ a ]ny p erson w ho willfully violates
any p rovisio n o f this section

. . . shall upon conviction be fined for each violation n ot more than $1,0 0 0
, 0 0 0 o r imprisoned not more th a n 20 y ears, or both.” 2 2 U .S.C. § 2778(c).

Rivero makes two a r gu ments r eg a rding mens rea. F irst, Rivero arg ues that when the g over n m e n t prosecutes a defendant u n der § 5 54(a) for e x porting items contrary to § 2778, the g overnment must prove that the defendant knew that the ex p orted items were a r m s , munitions, or military equipment a s specified in § 2778 a n d the associated
reg ulations. Second, Rivero arg ues that in suc h a prosecution, § 554(a) incorporates the mens rea of § 2778(c), such that the g over n m e n t must prove that the defendant
smug g led such items “willfully
, ” n ot just “knowing ly ” a s stated in § 554(a).

The S u preme Court has provided g uidance on how to interpret and apply the term “knowing ly ” in a criminal statute such as § 554(a). S

ee, e

. g. , Dixon v. United States , 548 U.S. 1, 5 (2006) (stating that “unless the tex t of the statute dictates

a different result, the term ‘ knowing ly ’ merely r equires proof of knowledg e of the facts that c on s t itute the offense,” a s opposed to proof that the d efendant “acted w i t h k n owledg e that his conduct was unlawful.”) (quoting Bry a n v. United States , 524 U.S. 184, 193 (1998)). As we have ex p l a i ned, “absent c lear indicia of cong ressional inten t t o t he contrary , an interpretation of ‘knowing ly ’ in a criminal statute” should be consistent with two basic p r i nciples. United States v

. Crowder
, 656 F .3d 870, 874 (9th Cir. 2011). F i rst, the interpretation “should req u i r e the g overnment to p rove the defendant’s knowledg e of the facts th a t constitute the

o ffense.” I

d. Second, “knowing ly ” in a criminal sta t u t eU N I T E D S T A T E S V

. R I V E R O 9

should n ot be interpreted to “ criminaliz e a broad rang e o f apparently i n nocent conduct.” Id. (quoting Liparota v

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

Construing § 554(a) in acco r d with these principles, we reject Rivero’s arg ument t h a t the g o vernment had to prove that Rivero k

new the ex act nature of the items he attempted
to ex port. F irst, the facts that cons t i t u t e the offense are the

ex p ort of “any merchandise, article, or object contrary to any law or reg ul at i o n

. ” 18 U.S.C. § 554(a). Nothing in the lang uage of the statute requires knowledg e of the nature o f the merchandise, a

r ticle, or object. I f R i v e r o k n ew that the truck contained merchandise that w as u nlawful to ex port, but elected n o t to look in the truck, he would meet the requirements o f § 554(a) o f knowin g that he was e x porting “merchandise

. . . contrar y t o law.” Second, a

pply ing “knowing ly ” in this manner does n o t “criminaliz e a broad
rang e of apparently innocent conduct.” Liparota
, 471 U.S. at 426.

B y contrast, interpreting § 554(a) to require the
g overnment to prove that the d efendant kn e w t he nature o f the “merchandise, article or object” would lead to the absurd result that individuals c ould avoid criminal liability simply b y being willfu l l y b l i nd to the precise nature of the g oods they

were unlawfully e x porting or attempting to ex port. W e avoid
g iving such “ absur d o r irrational” interpretations. United States v. LKAV

, 712 F .3d 4 36, 440 (9th Cir. 2013); see also United States v. Casasola
, 670 F .3d 1023, 1029 (9th Cir. 2012) (“[ W] e do not impute to Cong ress an intent to create a law that produces an unreasonable result.”).

Be c a use § 554(a) does not require the g overnment to prove that the defendant knew the nature of the “merchandise,U N I T E D S T A T E S V

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article
, o r object” that the defendant was ex porting o r attempting to ex port “contrary to any law or reg

u lation,” the district court did not err in overruling Rivero’s objections to either the jury instructions or the g overnment’s statement o f the law during closing arg uments. 2

Rivero raises two arg u ments to the contrary

. F irst, Rivero
arg ues that United States v. Cardenas
, 810 F .3d 373 (5th Cir. 2016) (per curiam) requires the g overnment to p r o ve knowledg e of the identity of the item a s a n e lement o f § 554(a). W e d isag ree. Cardenas involved a d e f e n d ant

conv i c ted of violating 18 U.S.C. § 554(a) for attempting to

ex p ort ammunition in a manner contrary to 22 U.S.C. § 2778. Id. at 374. On appeal, the defendant arg ued that “the district
court should have instructed the jury t h a t , to find him g uilty of violations of § 554(a) ( smug g ling from the United States), it must f i n d that he violated 22 U.S.C. § 2778(c) (control o f

arms ex ports and imports), with the specific intent to violate the law.” Id. The defendant conceded “that he believed that
t h e ammunition was destined for Mex ico,” and “that the evidence would allow a finding that he s u s p ected that the

ex p ortation of ammunition was ill e ga l or that he was acting in reckless d isreg ard of whether h is actions were illeg al.” Id.
at 3 75. B ecause the defendant conceded that he knew he was

e x p o r ting ammunition, the F ifth Circuit did not consider whether § 554(a) required the g overnment t o p r ove this knowledg e. Rather, the F ifth Circuit rejected the defendant’s
arg ument the g o v ernment had to prove specific intent, i.e., that the d efendant knew that § 2778 required that he have an

ex p ort license. I n stead, the F ifth Circuit held t h a t “ to

2 R iv ero do es n o t arg u e th at th e d istrict co u rt erred in in stru ctin g th e j u ry th at h e d id n o t n eed t o k n o w t h at ex p o rtin g th e “ m erch an d ise, article

o r o b j ect” w as u n law f

u l, so w e d o n o t reach th is issu e.U N I T E D S T A T E S V

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establish a

n offense under § 5 5 4 ( a), the Government is require d t o p r ove only that the defendant knew he was dealing with ammunition that was intended for ex port a nd that the ex portation was illeg al.” I d

. at 374. A c cording ly
, Cardenas provides no support for Rivero’s arg ument that the
g overnment had to prove he k new he was ex p orting o r att em p t i ng to ex port ammunition; rather, it supports our conclusion that the g overnment n eed not prove t hat a defendant had specific intent to violate § 2778.

W e a lso reject Rivero ’ s arg ument that § 554(a) incorporates the m ens rea o f “willfully ” from § 2778(c). Althoug h § 2778(c) imposes criminal penalties on “[ a] n y person who willfully violate s ” the reg istration a nd licensing requirements applicable to persons in tending to ex port c ertain munitions, 2 2 U.S.C. § 2778(c) (emphasis added), Ri v e r o was not c harg ed with violating § 2778. Rather, Rivero was charg ed with violating § 554(a) by ex porting items contrary to law, which requires the mens rea of k n o w ingly e x porting

s u c h items. The g o vernment proved this element of the § 554(a ) o ff

ense by establishing that Rivero knowing ly

ex p orted ammun i t i o n without a license, in violation o f § 2 7 7 8 (b )

. The g o vernment did not have to prove the elements necessary to convict Rivero under § 2 7 7 8 ( c ), because conviction under § 2 7 78(c) is not an element of the offense of violating

§ 554(a).

According ly
, we affirm both Rivero’s conviction a nd his revocation of supervised release.

AF F IRMED.