United States v. Yasith Chhun , 744 F.3d 1110 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50296
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-00519-DDP-1
YASITH CHHUN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
November 4, 2013—Pasadena, California
Filed March 11, 2014
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. CHHUN
SUMMARY*
Criminal Law
The panel affirmed a defendant’s convictions and
sentence for violating 18 U.S.C. § 956(a) (conspiracy to
commit murder in a foreign country), 18 U.S.C. § 956(b)
(conspiracy to damage or destroy property in a foreign
country), and 18 U.S.C. § 960 (conspiracy to launch a
weapon of mass destruction outside the U.S.), arising from
his conspiring, while in the United States, to lead a private
army against the government of Cambodia and to overthrow
its Prime Minister.
The panel held that § 956(a), which was enacted as part
of the Antiterrorism and Effective Death Penalty Act of 1996,
is not ambiguous. The panel therefore rejected the
defendant’s contentions that because he was not involved in
terrorist activities, § 956(a) does not apply to him, and that
the statute is void for vagueness.
The panel held that there was sufficient evidence for the
jury to conclude that the defendant had the intent to commit
murder.
The panel held that the “at peace” element of §§ 956(b)
and 960 was correctly submitted to the jury, and that the
district court did not plainly err in its jury instruction defining
that element.
*
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. CHHUN 3
The panel held that the district court’s failure to instruct
the jury to find an overt act that occurred within the five-year
limitations period did not affect the defendant’s substantial
rights.
The panel concluded that the district court did not commit
plain error in sentencing the defendant to life in prison, and
that the sentence was not substantively unreasonable.
COUNSEL
Richard M. Callahan, Jr. (argued), Law Offices of Richard M.
Callahan, Jr., Pasadena, California, for Defendant-Appellant.
Jean-Claude André (argued), United States Department of
Justice, Office of the United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
4 UNITED STATES V. CHHUN
OPINION
BEA, Circuit Judge:
Yasith Chhun appeals his convictions for violations of
18 U.S.C. §§ 956(a), 956(b), and 960, and appeals his life
sentence. While within the United States, Chhun conspired
to lead a private army against the government of Cambodia
and to overthrow its Prime Minister, Hun Sen. We affirm
Chhun’s convictions and sentence.
I. Factual Summary
In 1975, the Khmer Rouge, a communist party led by Pol
Pot, rose to power in Cambodia. Under Pol Pot’s regime,
millions of Cambodians died from execution, disease, and
starvation, and were buried in mass graves known as “killing
fields.” One of Pol Pot’s field commanders was Hun Sen.
In 1979, Vietnamese communists occupied Cambodia,
staying until 1989. During this period, Hun Sen and other
former Khmer Rouge members were designated by the
Vietnamese as surrogate leaders of Cambodia. Hun Sen, as
a member of the Cambodian People’s Party (“CPP”), became
Prime Minister of Cambodia in 1989. After losing the 1993
election, Hun Sen threatened military action and was given a
share of the Prime Minister position, along with Prince
Norodom Ranariddh. In 1997, Hun Sen led a coup d’état
against Prince Ranariddh and took sole possession of the
Prime Minister position.
In 1998, both Houses of the United States Congress
issued resolutions condemning Hun Sen’s coup. H.R. Res.
533, 105th Cong. (1998); S. Res. 309, 105th Cong. (1998).
UNITED STATES V. CHHUN 5
These resolutions supported prosecuting Hun Sen in the
International Criminal Court for “war crimes, crimes against
humanity, and genocide.” Id.
Yasith Chhun, a tax preparer in the United States who
was born in Cambodia and emigrated to the United States as
a child, also objected to Hun Sen’s 1997 seizure of power. In
October, 1998, Chhun traveled to the border between
Thailand and Cambodia to meet with opponents of the CPP
who believed that Hun Sen should be removed from power.
Those at the meeting formed the Cambodian Freedom
Fighters (“CFF”), with Chhun as the party’s president. The
purpose of the CFF was to remove Hun Sen from power and
become the controlling party in Cambodia.
Following the formation of the CFF, Chhun held multiple
meetings with other members of the CFF in Long Beach,
California to plan Hun Sen’s overthrow. They called this
plan “Operation Volcano.” It involved a military strike
against government targets in Cambodia’s capital, Phnom
Phenh. Chhun informed the other CFF members that,
although loss of life was inevitable, the number of casualties
would be low because the Cambodian people would turn
against Hun Sen and support the CFF.
In 1999, members of the CFF committed a series of
small-scale attacks—which they called “popcorn
attacks”—on Cambodian establishments. In one popcorn
attack in February, 1999, a CFF operative threw a grenade
into a bar, injuring several patrons and killing at least one.
Meanwhile, Chhun continued to raise funds and supplies
in the United States. On May 31, 2000, Chhun and several
CFF members boarded a plane in Los Angeles, California
6 UNITED STATES V. CHHUN
bound for Thailand. While in Thailand, Chhun continued to
plan Operation Volcano from a house near the
Thailand/Cambodia border.
Operation Volcano began on November 24, 2000. CFF
soldiers attacked government buildings protected by
government forces in Phnom Phenh. Throughout the day,
CFF soldiers and government soldiers exchanged gunfire.
Finally, the government sent in tanks, and the CFF forces
retreated. Several CFF soldiers were killed in the gunfire that
day. Additionally, one civilian bystander was killed. After
this failed overthrow, Chhun returned to the United States and
resumed his life as a tax preparer.
More than four years later, on May 31, 2005, the United
States government indicted Chhun for violating 18 U.S.C.
§ 956(a) (Count One, conspiracy to commit murder in a
foreign country), § 956(b) (Count Two, conspiracy to damage
or destroy property in a foreign country), § 960 (Count Three,
expedition against a friendly nation), and § 2332a(b) (Count
Four, conspiracy to launch a weapon of mass destruction
outside the U.S.).1
Before trial, Chhun filed motions to dismiss Counts One,
Two, and Three on the grounds that the United States and
Cambodia were not “at peace,” the statutes were void for
vagueness, and that the indictment failed to state an offense,
all of which the district court denied. At trial, the jury
convicted Chhun of all four Counts. At sentencing, the
Probation Office calculated Chhun’s Guidelines-based
1
Chhun does not appeal his 18 U.S.C. § 2332a(b) conviction of
conspiracy to launch a weapon of mass destruction.
UNITED STATES V. CHHUN 7
sentencing range as “life.”2 Chhun did not dispute that this
was the correct Guidelines range. The court sentenced Chhun
to life in prison, noting in particular that Chhun had the intent
to kill and also that at least two innocent people were in fact
killed.
Chhun appeals his convictions of Counts One, Two, and
Three, as well as his life sentence. He does not appeal his
conviction of Count Four.
II. 18 U.S.C. § 956(a) Is Not Ambiguous, and Therefore
Chhun Was Correctly Convicted Under It
Count One charged Chhun with conspiring, while within
the United States, to commit murder in a foreign country in
violation of 18 U.S.C. § 956(a). That statute was enacted as
part of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). 110 Stat. 1214, 1294–95 (1996). Chhun
first argues that § 956(a) does not have a plain meaning
because the statute’s purpose, though not its text, relates only
to terrorism.3 Chhun infers § 956(a)’s “antiterrorism”
2
The PSR calculated an offense level of 48 for Chhun’s four
convictions, and a criminal history level of I. This led to a sentencing
guidelines range of “life.”
3
The statute’s plain text itself is not ambiguous, nor does Chhun argue
that it is ambiguous. The relevant portion of the statute states:
Whoever, within the jurisdiction of the United States,
conspires with one or more other persons, regardless of
where such other person or persons are located, to
commit at any place outside the United States an act
that would constitute the offense of murder,
kidnapping, or maiming if committed in the special
maritime and territorial jurisdiction of the United States
8 UNITED STATES V. CHHUN
purpose from its enactment as a part of AEDPA. Chhun
argues that, in response to the 1993 World Trade Center
bombing and the 1995 Oklahoma City bombing, Congress
enacted AEDPA to target terrorism cases. A conspiracy to
overthrow the Cambodian government, Chhun argues, is not
“terrorism” and does not relate to the safety or security of
Americans or American interests. Thus, even though the text
of the statute is clear, he argues, the purpose of the statute
limits its scope. Chhun next asserts that it would violate the
statutory canon against absurdities4 for the court to apply the
plain text of the statute. The plain meaning of the statute
prohibits any conspiracy formed in the United States to
commit murder anywhere in the world for any reason, which
Chhun argues would be absurd, since its purpose is to target
only terrorist activities. Because Chhun was not involved in
terrorist activities, he concludes, § 956(a) does not apply to
him, fails to charge an indictable offense, and should have
been dismissed.
We review de novo a district court’s decision not to
dismiss an indictment based on an interpretation of a federal
statute. United States v. Wilbur, 674 F.3d 1160, 1170 (9th
Cir. 2012).
shall, if any of the conspirators commits an act within
the jurisdiction of the United States to effect any object
of the conspiracy, be punished as provided in
subsection (a)(2).
18 U.S.C. § 956(a)(1).
4
See Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816 (9th Cir. 2004)
(“[W]e do not limit ourselves to the apparent plain meaning of a statute,
if doing so leads to absurd or impracticable consequences.”) (internal
quotation marks omitted).
UNITED STATES V. CHHUN 9
“In interpreting a statute, we must examine its language.
If ‘the statute is clear and unambiguous, that is the end of the
matter.’” United States v. Bahe, 201 F.3d 1124, 1128 (9th
Cir. 2000) (quoting Sullivan v. Stroop, 496 U.S. 478, 482
(1990)) (citation omitted). In this case, there is no ambiguity
in the text. The statute prohibits conspiring, while within the
jurisdiction of the United States, to commit at any place
outside the United States an act that would constitute the
offense of murder if committed in the United States’ maritime
and territorial jurisdiction. Section 956(a) does not limit its
application to “terrorist” acts, or to acts that affect United
States citizens or interests. The statute applies to “[w]hoever
. . . conspires with one or more other persons . . . to commit
at any place outside the United States an act that would
constitute the offense of murder.” 18 U.S.C. § 956(a)(1).
Where an unambiguous statutory text exists, it is irrelevant
whether Congress did not envision the application in
question. “As we have said before, the fact that a statute can
be applied in situations not expressly anticipated by Congress
does not demonstrate ambiguity. It demonstrates breadth.”
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)
(internal quotation marks omitted); see also Barr v. United
States, 324 U.S. 83, 90 (1945) (“[I]f Congress has made a
choice of language which fairly brings a given situation
within a statute, it is unimportant that the particular
application may not have been contemplated by the
legislators.”).
Moreover, it is not absurd for Congress to want to prevent
people within the borders of the United States from plotting
to commit murder in a foreign country. That is so even
though much of the impetus behind this part of AEDPA was
to fight terrorism in the United States. See Pittston Coal Grp.
v. Sebben, 488 U.S. 105, 115 (1988) (“It is not the law that a
10 UNITED STATES V. CHHUN
statute can have no effects which are not explicitly mentioned
in its legislative history . . . .”). Therefore, we hold that
18 U.S.C. § 956(a) does apply to Chhun’s conduct.
Chhun also argues that § 956(a) is void for vagueness
because a reasonable person in Chhun’s position would not
have been able to know that his conduct would be prohibited
under the statute, due to the statute’s antiterrorism purpose.
We review de novo whether a statute is void for vagueness.
United States v. Shetler, 665 F.3d 1150, 1164 (9th Cir. 2011).
Under Ninth Circuit precedent, “[a] criminal statute is void
for vagueness if it is not sufficiently clear to provide guidance
to citizens concerning how they can avoid violating it.”
United States v. Harris, 705 F.3d 929, 932 (9th Cir. 2013)
(internal quotation marks omitted). Chhun’s void for
vagueness argument fails because, as discussed above, the
statute’s text is clear and unambiguous. A reasonable person
would have no difficulty recognizing what conduct § 956(a)
prohibits.
Therefore, we affirm the district court’s denial of Chhun’s
motion to dismiss Count One.
III. There Was Sufficient Evidence for a Fact-Finder To
Conclude That Chhun Had the Intent To Commit
Murder
After Chhun was convicted by a jury, he moved the
district court for a judgment of acquittal for his conviction of
18 U.S.C. § 956(a), or, in the alternative, for a new trial. The
ground for this motion was insufficiency of the evidence to
prove that Chhun had the intent to murder when he conspired.
The district court denied his motion. Chhun argues on appeal
that there was insufficient evidence to prove that he had the
UNITED STATES V. CHHUN 11
requisite intent to conspire to commit murder. Under the
United States’ maritime and territorial jurisdiction, “murder”
is defined as “the unlawful killing of a human being with
malice aforethought.” 18 U.S.C. § 1111. In this case, the
district court defined “[t]o kill with malice aforethought” in
its tenth jury instruction as “to kill deliberately and
intentionally.”5 Chhun argues that he intended to arrest, not
kill, Hun Sen, and that in his plans for Operation Volcano he
always tried to minimize casualties. Chhun argues that the
evidence may prove a recklessness towards human life, and
perhaps even knowledge that some people would die, but
does not prove intent to kill.
We review de novo a district court’s denial of a motion
for a judgment of acquittal. United States v. Moses, 496 F.3d
984, 987 (9th Cir. 2007). We review de novo claims of
insufficient evidence. United States v. Sullivan, 522 F.3d
967, 974 (9th Cir. 2008) (per curiam). Evidence is sufficient
to support a conviction if, “viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). We review a district court’s denial of a motion for a
new trial under the “abuse of discretion” standard. Moses,
496 F.3d at 987.
5
The government had sought a definition of “malice aforethought” that
included “recklessly with extreme disregard for human life,” but after
lengthy consideration the district court found that it was not possible to
conspire to commit a reckless crime, and therefore in its jury instruction
defined the mens rea the jury had to find as “deliberately and
intentionally.”
12 UNITED STATES V. CHHUN
A conspiracy requires “(1) an agreement to engage in
criminal activity, (2) one or more overt acts taken to
implement the agreement, and (3) the requisite intent to
commit the substantive crime.” Sullivan, 522 F.3d at 976
(internal quotation marks omitted). Chhun contends that
there was insufficient evidence for the government to prove
the third prong, that he had the intent to commit the
substantive crime of murder. Chhun is correct that, under the
jury instructions given in his case, his intent to murder had to
be proved, and that mere recklessness or knowledge would
not satisfy this burden. There is, however, sufficient
evidence, viewed in the light most favorable to the
government, to find that Chhun had the requisite mens rea of
“intent to murder.” In August, 2000, Chhun wrote to the
other CFF officials that his enemies “are luck[]y to survive at
this moment, but however they can not escape from our
volcano. We have to send them to . . . hell in the near future.”
The government also points to a handwritten military plan for
Operation Volcano that instructed its reader to “look for
surviving enem[ies] very carefully . . . [and] take prisoners or
shoot to kill on the spot.” Richard Kim, a CFF military
commander, testified that Chhun sent this document to him.
There was sufficient evidence in the record to allow the
jury to conclude that Chhun had the intent to murder his
enemies when he conspired to overthrow Hun Sen.
Therefore, the district court did not abuse its discretion in
denying Chhun’s motion for judgment of acquittal and new
trial.
UNITED STATES V. CHHUN 13
IV. The “at Peace” Element of 18 U.S.C. §§ 956(b) and
960 Was Correctly Submitted to the Jury To Decide,
and the District Court Did Not Plainly Err in Its
Jury Instruction Defining That Element
Count Two charged Chhun with violating 18 U.S.C.
§ 956(b), and Count Three charged him with violating the
Neutrality Act, 18 U.S.C. § 960.6 Both crimes include the
element that the United States and the foreign country in
question be “at peace.”
6
Section 956(b) provides:
Whoever, within the jurisdiction of the United States,
conspires with one or more persons, regardless of
where such other person or persons are located, to
damage or destroy specific property situated within a
foreign country and belonging to a foreign government
or to any political subdivision thereof with which the
United States is at peace . . . shall, if any of the
conspirators commits an act within the jurisdiction of
the United States to effect any object of the conspiracy,
be imprisoned not more than 25 years.
Section 960 provides:
Whoever, within the United States, knowingly begins
or sets on foot or provides or prepares a means for or
furnishes the money for, or takes part in, any military or
naval expedition or enterprise to be carried on from
thence against the territory or dominion of any foreign
prince or state, or of any colony, district, or people with
whom the United States is at peace, shall be fined under
this title or imprisoned not more than three years, or
both.
14 UNITED STATES V. CHHUN
Chhun filed a motion in the district court to dismiss
Counts Two and Three on the ground that the United States
was not “at peace” with Cambodia. The district court denied
the motion, finding that “at peace” was an element of the
crime and that all elements of the crime must be submitted to
a jury. Chhun appeals, arguing that “at peace” was a question
of law that the district court and not the jury should decide or,
in the alternative, that Counts Two and Three should be
reversed because the district court defined “at peace”
incorrectly in its jury instruction.
A. The District Court Was Correct to Submit to the
Jury the Question of Whether the United States and
Cambodia were “at Peace”
We review de novo a district court’s decision not to
dismiss an indictment based on an interpretation of a federal
statute. Wilbur, 674 F.3d at 1170.
Chhun argues that the “at peace” element in Counts Two
and Three is a question of law and not of the sufficiency of
proof. Chhun argues that, as a matter of law, the United
States and Cambodia were not at peace during the charged
period. He cites several pieces of evidence to support this
conclusion. First, in July, 1997, soon after Hun Sen took
power in Cambodia, President Clinton wrote a letter to
Congress telling them that he had ordered the State
Department to set up a staging area in Thailand for possible
evacuations from Cambodia. H.R. Doc. No. 105-104 (1997).
Congress then cut off funding to the Cambodian government,
except for humanitarian programs. 111 Stat. 2386, 2390–91
(1997). In 1998, both the House and the Senate passed
resolutions condemning Hun Sen’s “coup d’état” and
supporting prosecuting Hun Sen for human rights violations.
UNITED STATES V. CHHUN 15
H.R. Res. 533, 105th Cong. (1998); S. Res. 309, 105th Cong.
(1998).
The Supreme Court has held that, in criminal cases, “a
jury [must] find [the defendant] guilty of all the elements of
the crime with which he is charged.” United States v.
Gaudin, 515 U.S. 506, 511 (1995). Here, the parties both
acknowledge that “at peace” is an element of the crime.
Therefore, under Gaudin, the district court was correct in
deciding that the “at peace” element had to be presented to
the jury, notwithstanding the facts that Chhun cites.
B. The District Court Did Not Plainly Err in Its Jury
Instruction Defining the Statutory Term “at Peace”
Chhun’s alternative argument is that the lower court
incorrectly defined “at peace” in its jury charge. The parties
disagree over whether Chhun preserved his objection to the
district court’s definition of “at peace.” If Chhun preserved
his objection, then we review de novo, United States v.
O’Donnell, 608 F.3d 546, 548 (9th Cir. 2010); if Chhun did
not preserve his objection, then we review for plain error,
United States v. Hofus, 598 F.3d 1171, 1175 (9th Cir. 2010).
Federal Rule of Criminal Procedure 30(d) defines the
correct method for objecting to jury instructions:
A party who objects to any portion of the
instructions or to a failure to give a requested
instruction must inform the court of the
specific objection and the grounds for the
objection before the jury retires to
deliberate. . . . Failure to object in accordance
with this rule [results in plain error review].
16 UNITED STATES V. CHHUN
Chhun did not state his grounds for objecting to the jury
instructions before the district court. There is, however, an
exception to “the requirement of a formal, timely, and
distinctly stated objection when a proper objection would be
a pointless formality.” United States v. Klinger, 128 F.3d
705, 711 (9th Cir. 1997) (internal quotation marks omitted).
This exception applies when a party satisfies a three-pronged
test to determine whether an objection to a jury instruction
would have been a “pointless formality”:
(1) throughout the trial the party argued the
disputed matter with the court; (2) it is clear
from the record that the court knew the party’s
grounds for disagreement with the instruction;
and (3) the party proposed an alternate
instruction.
Id. (internal quotation marks omitted). Chhun, however,
never presented an alternative jury instruction, and so, at a
minimum, fails the third prong of Klinger. Therefore, we
review the district court’s jury instruction for plain error.
The jury instruction defining “at peace” tracked the text
of one of the district court’s opinions in the case:
“At peace,” as that term is used in these
instructions, means any time when the United
States and another foreign country are not at
war with one another or engaged in open and
notorious military conflict with one another.
Military conflict is open and notorious if it
would have been known to an ordinary person
in the United States who keeps up with world
events.
UNITED STATES V. CHHUN 17
See United States v. Chhun, No. CR 05-00519ADDP, 2008
WL 793386, at *2 (C.D. Cal. Mar. 20, 2008) (unpublished).
Even on appeal, Chhun does not articulate an alternative
definition for the term “at peace.” The district court below
tried to articulate Chhun’s position for him: “Defendant
Chhun’s position seems to ask the Court to find that the
United States is not ‘at peace’ with a foreign nation that it
condemns or opposes even if it takes no military action
against that country.” United States v. Chhun, 513 F. Supp.
2d 1179, 1184 (C.D. Cal. 2007). Even assuming, for the
purposes of our plain error analysis, that the district court
accurately articulated Chhun’s alternative definition of “at
peace,” we conclude that the district court did not plainly err
in denying Chhun’s alternative jury instruction.
The term “at peace” has up to this point been defined only
by district courts. In United States v. Terrell, the Southern
District of Florida considered whether the Neutrality Act
(18 U.S.C. § 960) applied to defendants who were charged
with running guns to the Contra rebels in their war against the
Sandinista government of Nicaragua. 731 F. Supp. 473 (S.D.
Fla. 1989). The district court focused on whether the United
States was “at peace” with Nicaragua between October, 1984
and March, 1985, during which period the CIA was covertly
providing financial aid to the Contras without Congress’s
approval. Id. at 474. The district court held that “at peace”
refers to the absence of any hostilities between the United
States and a foreign country, declared or undeclared, overt or
covert, and concluded that the United States and Nicaragua
were not at peace during the relevant period. Id. at 475. The
court therefore granted the defendants’ motions to dismiss
those counts that included the “at peace” element. Id. at 477.
18 UNITED STATES V. CHHUN
In United States v. Jack, the Eastern District of California
considered whether the Neutrality Act applied to defendants
who were charged with shipping weapons to Laos to
overthrow the government. 257 F.R.D. 221 (E.D. Cal. 2009).
The defendants filed a motion to compel the government to
produce documents regarding, among other things, covert
military operations against Laos. The defendants contended
that the evidence would demonstrate their lack of knowledge
that the United States was “at peace” with Laos. Id. at 223.
The court concluded that “at peace” meant an absence of
overt as well as covert military operations, fearing that
otherwise the statute might not give fair notice and thereby be
void for vagueness and violate due process. Id. at 231–32.
Therefore, the court granted the defendants’ motion to
compel discovery of evidence relating to overt or covert
military planning or operations as to Laos during the relevant
period. Id.
Chhun cites these two cases in support of his contention
that the United States may cease to be “at peace” with another
nation even in the absence of military conflict if the
relationship between the two countries is “distant and tense.”
Those two cases, however, both involved actual military
conflict between the United States and the foreign country.
No case has held that the United States can cease to be “at
peace” with another nation with the complete absence of
some kind of military operation.
Indeed, the history of the Neutrality Act (18 U.S.C. § 960)
confirms that the United States and another nation remain “at
peace” even when diplomatically they are “distant and tense,”
so long as there are no military operations between them.
The Neutrality Act was passed in 1794 in response to
attempts by French diplomats to use the United States as a
UNITED STATES V. CHHUN 19
staging ground from which to prepare expeditions against
Great Britain. The United States wanted to prevent
individuals from forcing it into a state of war with Britain.
Jules Lobel, The Rise and Decline of the Neutrality Act:
Sovereignty and Congressional War Powers in United States
Foreign Policy, 24 Harv. Int’l L.J. 1, 24–25 & n.134 (1983).
Thus, at the time the Neutrality Act was passed, “at peace”
described the state of relations between the United States and
Britain. “Distant and tense” would be an apt way to describe
the diplomatic relationship between Britain and the United
States in 1793, a decade after the United States and Britain
had signed the Treaty of Paris and in the midst of a war
between Britain and the United States’ ally France. Lobel,
supra, at 11–15. Nevertheless, despite this diplomatic
tension, there were no active military operations between
Britain and the United States in 1794, and the “at peace”
phrasing of the Neutrality Act would have been understood to
describe that diplomatic relationship.
We therefore hold that the district court did not plainly err
in its jury instruction when it defined “at peace” as the
absence of “war” or “military conflict,” and thereby required
“military conflict” to end the state of “peace” for the purposes
of 18 U.S.C. §§ 956(b) and 960.7
7
Chhun also argues that the jury instruction was erroneous because, by
requiring “open and notorious” military conflict to end a state of peace, it
excluded covert military operations. We need not decide today whether
the district court erred in requiring overt military conflict to render the
United States and a foreign country not “at peace” for the purposes of
18 U.S.C §§ 956(b) and 960. Any possible error would be harmless to
Chhun, because he acknowledges that “the United States was not engaged
in a covert war against the sitting government of Cambodia.”
20 UNITED STATES V. CHHUN
V. The District Court’s Failure To Instruct the Jury To
Find an Overt Act That Occurred Within the Five-Year
Limitations Period Did Not Affect Chhun’s Substantial
Rights
Chhun argues that the district court should have informed
the jury that they must find that at least one overt act
supporting each element of the crimes charged in Counts
Two8 and Three9 occurred within the statutory period. The
statutory period commenced on May 31, 2000, because
Chhun was indicted on May 31, 2005. Chhun argues that
none of the charged overt acts occurred both within the
statutory period and within the United States, as required by
18 U.S.C. §§ 956(b) and 960.
Chhun failed to object to the absence of a jury instruction
that the jurors must find an overt act in furtherance of the
conspiracy within the five-year limitations period, and so the
issue is reviewed for “plain error.” United States v. Fuchs,
218 F.3d 957, 961 (9th Cir. 2000). Plain error review
consists of three prongs: (1) there is error; (2) the error is
plain; and (3) the plain error affects substantial rights.
Johnson v. United States, 520 U.S. 461, 467 (1997). If all
three of these prongs are met, then the court “may exercise
[its] discretion and reverse the defendant[’s] convictions if
permitting the convictions to stand would result in a
miscarriage of justice.” Fuchs, 218 F.3d at 963. The
government acknowledges that the failure to instruct the jury
8
Count Two charged Chhun with conspiracy to damage or destroy
property in a foreign country in violation of 18 U.S.C. § 956(b).
9
Count Three charged Chhun with expedition against a friendly nation
in violation of 18 U.S.C. § 960.
UNITED STATES V. CHHUN 21
on the statute of limitations issue satisfies the first two prongs
of this test. Therefore, the remaining issues are whether the
plain error affected Chhun’s substantial rights and, if so,
whether this court should exercise its discretion to reverse the
defendant’s convictions.
A plain error affects a party’s substantial rights when it
“affects the outcome of the proceedings.” Id. at 962 (internal
quotation marks and brackets omitted). Chhun argues that the
error affected the outcome of the trial because none of the
overt acts underlying the conspiracy occurred both within the
statutory period and within the United States.
We have stated that a jury must “find that an overt act in
furtherance of the conspiracy occurred within the statute of
limitations.” Id. at 961. The “only function” of proof of an
overt act, however, “is to demonstrate that the conspiracy is
operative.” United States v. Andreen, 628 F.2d 1236, 1248
(9th Cir. 1980) (Kennedy, J.). The elements of a conspiracy
can be satisfied even if not all of the conspiracy elements
occurred within the limitations period. As we have said,
“[a]ctions that cannot be prosecuted because of the statute of
limitations can be considered as part of an ongoing
conspiracy so long as one overt act in furtherance of the
conspiracy occurred during the limitations period.” Wilbur,
674 F.3d at 1176.
Here, there is ample evidence of overt acts within the
statutory period that prove Chhun’s conspiracy to overthrow
Hun Sen. Overt Act Number Seven of the Indictment alleges:
“On or about May 31, 2000, defendant YASITH CHHUN and
other co-conspirators . . . traveled from Los Angeles,
California to Bangkok, Thailand in order to set up a base
22 UNITED STATES V. CHHUN
camp to coordinate the attempted overthrow.”10 Overt Act
Number Eight alleges: “Between July 2000 and November
2000, at defendant YASITH CHHUN’s direction, co-
conspirators who were members of CFF purchased
approximately $16,000 of radio equipment from Ham Radio
Outlet in Anaheim, California in order to communicate
during ‘Operation Volcano.’” Overt Act Number Nine
alleges: “On or about November 6, 2000, at defendant
YASITH CHHUN’s directions, co-conspirators who were
members of CFF transported the radio equipment from Los
Angeles, California to Bangkok, Thailand so that the
equipment could be used to carry out ‘Operation Volcano.’”
Chhun does not dispute that the bulk of activity of the
conspiracy occurred within the statutory period, albeit outside
the United States.
Moreover, Chhun’s case is not one in which the court
should “exercise [its] discretion and reverse the defendant[’s]
convictions if permitting the convictions to stand would result
in a miscarriage of justice.” Fuchs, 218 F.3d at 963. In
Fuchs, the court decided to exercise its discretion to reverse
the defendants’ convictions because the evidence supporting
10
Moreover, Overt Act Number 7 is an example of an overt act in
furtherance of the conspiracy that occurred within the United States,
contrary to Chhun’s contention that there was none. Chhun boarded the
plane in the United States on May 31, 2000, exactly five years before he
was indicted. Boarding a plane with his co-conspirators to travel to the
site of the intended overthrow was an overt act committed within the
United States within the statutory period. See United States v. Tawab,
984 F.2d 1533, 1534 (9th Cir. 1993) (per curiam) (holding that an
indictment returned on February 15, 1991 was not barred by a five-year
limitation statute where the offense occurred on February 15, 1986).
Thus, there is one overt act that occurred within the statutory period within
the United States that supports a conspiracy charge.
UNITED STATES V. CHHUN 23
their guilt “was not overwhelming,” as there were very few
overt acts committed within the statutory period. Id. (internal
quotation marks omitted). When the evidence is
“overwhelming,” on the other hand, courts have not exercised
their discretion to reverse defendants’ convictions. See
United States v. Bear, 439 F.3d 565, 570 (9th Cir. 2006)
(“Allowing the conviction to stand does not have those
serious effects on judicial proceedings when the evidence
against the defendant on the issue erroneously explained to
the jury is ‘overwhelming’” (quoting Fuchs, 218 F.3d at
963)). Here, as shown above, the evidence of the conspiracy
was overwhelming and, indeed, essentially uncontroverted at
trial.
Therefore, we dismiss Chhun’s challenge to the district
court’s jury instructions because any error in failing to
instruct the jury to find an overt act within the statutory
period did not affect Chhun’s substantial rights.
VI. The Court Did Not Commit Error in Sentencing
Chhun to Life in Prison
Chhun challenges his life sentence, arguing that the
district court did not adequately consider the 18 U.S.C.
§ 3553(a) factors and did not adequately explain the sentence.
Chhun and the government both agree that Chhun did not
object at the sentencing hearing that the district court erred in
applying the § 3553(a) factors, and so we review for “plain
error.” United States v. Joseph, 716 F.3d 1273, 1276 (9th
Cir. 2013).
The Supreme Court has said that “failing to consider the
[18 U.S.C.] § 3553(a) factors” and not “adequately
explain[ing] the chosen sentence” during sentencing are
24 UNITED STATES V. CHHUN
“significant procedural error[s].” Gall v. United States,
552 U.S. 38, 51 (2007). The Supreme Court has also stated,
however, that “when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily
require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356 (2007). As we have said, “[i]f the record ‘makes
clear that the sentencing judge listened to each argument’ and
‘considered the supporting evidence,’ the district court’s
statement of reasons for the sentence, although brief, will be
‘legally sufficient.’” United States v. Sandoval-Orellana,
714 F.3d 1174, 1181 (9th Cir. 2013) (quoting Rita, 551 U.S.
at 358).
Chhun argues that the sentencing court did not adequately
address three specific issues:
1) the fact that the entire prosecution of Mr.
Chhun had been politically motivated; 2) the
failure of the government to charge any other
CFF officials for the failed overthrow of Hun
Sen proves that the incident was not believed
that serious by the federal government, and
the failure to charge others involved in the
coup d’état demonstrated sentencing
disparity; 3) the failure of the government to
take any action against Mr. Chhun until the
statute of limitations was about to run proves
that he was not considered a future threat.
The sentencing guidelines in this case recommended a
sentence of “life.” The sentencing judge stated that, in
deciding to sentence Chhun to life in prison, he considered
the § 3553(a) factors. The sentencing court, moreover,
implicitly addressed Chhun’s first and third issues—that his
UNITED STATES V. CHHUN 25
prosecution was politically motivated and that the delay in
prosecuting him proves he was not a future threat—by
emphasizing the government’s prosecutorial discretion and
the government’s discretion in interacting with other
countries. The court also addressed Chhun’s second
issue—that he was the only CFF official prosecuted—by
noting that he was the leader of the movement. Thus, the
sentencing transcript suggests that the court specifically
addressed Chhun’s concerns, addressed the § 3553(a) factors,
and explained Chhun’s sentence.
Therefore, we conclude that the district court did not
commit plain error in sentencing Chhun to life in prison.
VII. Chhun’s Sentence Was Not Substantively
Unreasonable
Chhun argues that his sentence was substantively
unreasonable because the sentencing court did not adequately
consider Chhun’s “[n]oble” effort to overthrow a “universally
despised despot,” it punished him only because his overthrow
effort “fail[ed] to succeed,” and it punished him for the
purpose of “send[ing] a message” to foreign governments.
The substantive reasonableness of a sentence is reviewed
for abuse of discretion. United States v. Blinkinsop, 606 F.3d
1110, 1116 (9th Cir. 2010). The review must consider the
totality of the circumstances, while recognizing that the
“‘sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) in the individual case.’”
Id. (quoting Gall, 552 U.S. at 51).
We find that Chhun’s sentence was not substantively
unreasonable. The sentencing court gave numerous reasons
26 UNITED STATES V. CHHUN
to support Chhun’s sentence and thereby showed that it did
not abuse its discretion in sentencing Chhun. In addition to
those reasons discussed supra, in Part VI, the sentencing
court also explained that illegal conduct will not be shielded
from punishment just because it is “noble.” The court
rejected Chhun’s pleas for leniency because he caused the
deaths of innocent people. These reasoned justifications for
sentencing Chhun to life in prison show that the sentence was
not substantively unreasonable. Therefore, we hold that the
district court did not abuse its discretion in sentencing Chhun
to life in prison.
VIII. Conclusion
For the above-stated reasons, we AFFIRM Chhun’s
convictions and sentencing in all respects.