United States v. Edward Arao

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2023
• Docket: 22-50013
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50013

Plaintiff-Appellee, D.C. No. 2:18-cr-00121-PSG-2 v.

EDWARD YASUSHIRO ARAO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted February 8, 2023 Pasadena, California

Before: SCHROEDER, TALLMAN, and IKUTA, Circuit Judges.

Defendant-Appellant Edward Arao was a Gardena Police Officer and the

“responsible person” for a corporate federal firearms licensee (FFL) named “Ronin

Tactical Group” (Ronin).1 A jury twice convicted Arao of dealing firearms without

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Both individuals and corporations may apply for a license to deal firearms. “[A]ny corporate applicant must provide a wealth of information about each ‘responsible person,’ owner, and partner of the company.” United States v. King, 735 F.3d 1098, 1105 (9th Cir. 2013). Arao provided this information for Ronin’s license, but did not have an individual federal license. a license in violation of 18 U.S.C. § 922(a)(1)(A) and of conspiracy to do the same.

Arao used Ronin’s license and his status as a peace officer to buy “off-roster”

handguns,2 transferred those handguns to himself, and then resold them to third

parties in what he and a co-conspirator styled as “private party transfers.” Arao

argues that the evidence presented at trial was insufficient to show that he “willfully”

violated the law. He also argues that § 922(a)(1)(A) is unconstitutionally vague as

applied to him. We disagree and affirm.

1. Arao argues that the evidence presented at trial was insufficient to support

the jury’s finding that he acted “willfully” as required by § 924(a)(1)(D). To prove

that a defendant willfully sold firearms without a license, the government must

establish beyond a reasonable doubt that the defendant “acted with knowledge that

his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 191-92 (1998)

(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)). The government need

not prove that the defendant was aware of the specific licensing requirement that he

was violating. Id. at 198-99. “[K]nowledge that the conduct is unlawful is all that

is required.” Id. at 196.

2 California maintains a “roster” of handguns approved for sale in the state. See Cal. Penal Code § 32015. During the relevant period of time, gun dealers were not allowed to sell “off-roster” handguns to the public, see id. § 32000(a)(1), but an exception existed for police officers, who could buy them, id. § 32000(b)(4), and resell them in private sales, see id. §§ 27545, 28050(a), 32110(a); see also A.B. 2699, 2019-2020 Reg. Sess. (Cal. 2020) (amending the statute).

2 In reviewing the sufficiency of the evidence following conviction, we must

construe the trial evidence in the light most favorable to the prosecution. United

States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). We “may not

usurp the role of the finder of fact by considering how [we] would have resolved the

conflicts, made the inferences, or considered the evidence at trial.” Id. at 1164. In

the face of conflicting evidence, we “must presume . . . that the trier of fact resolved

any such conflicts in favor of the prosecution.” Id. (quoting Jackson v. Virginia, 443

U.S. 307, 326 (1979)). After the evidence is viewed in this light, we then determine

whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 319).

Arao argues that we should reverse the jury’s verdict because he honestly

believed that a “loophole” in state and federal law permitted his conduct. Arao

points to the absence of direct evidence showing that he knew Ronin’s license did

not cover his private party transfers. Arao also kept transaction records as required

by state and federal law, complied with California law regarding background checks

and waiting periods, and conducted all of his business out in the open. But the

government presented substantial circumstantial evidence of Arao’s willfulness. For

example, the jury heard that Arao deliberately transferred each “off-roster” firearm

from Ronin to himself as an exempt police officer, and later resold those guns in

private party transfers. Arao also made several false statements on ATF forms,

3 including when he asserted that he was the “actual buyer” of 41 firearms which he

later resold over varying periods of time. And the government presented evidence

that Arao was a police officer and, as part of the application process for Ronin’s

FFL, had been provided with information about federal firearms laws.

This evidence is sufficient to support the jury’s verdict. A rational trier of fact

could have inferred that someone with Arao’s professional experience had a high

degree of knowledge about firearms laws, and therefore knew Ronin’s license did

not cover his personal sales. See United States v. Hernandez, 859 F.3d 817, 822 (9th

Cir. 2017) (per curiam). A rational trier of fact could also have found that Arao’s

efforts to structure his transactions as “private party transfers” showed that he knew

Ronin’s license did not cover them. See id. These “private party transfers” were

possible only because Arao first transferred the firearms from Ronin to himself, as a

private party, see Cal. Penal Code § 32000(b)(4), and then sold the firearms to

another private party. This is because California law permits transfers of off-roster

firearms only between private parties and “through” a licensed dealer that is not a

party to the transaction. See id. §§ 27545, 28050(a), 32110(a). Thus, a reasonable

jury could find that, in order to comply with California law, Arao transferred the

firearms to himself and resold them, knowing he was acting as a private party and

not acting on behalf of Ronin, a licensed dealer. Finally, Arao’s false statements on

ATF forms were further evidence of his intent to conceal his activities and violate

4 the law. See King, 735 F.3d at 1106. Even if Arao’s belief in a legal loophole could

be considered “an equally plausible innocent explanation” for his conduct, on this

record a rational jury could have found that he acted willfully. See Nevils, 598 F.3d

at 1169.

2. Arao also argues that § 922(a)(1)(A) is unconstitutionally vague as applied

to him because California law allowed police officers to buy and resell off-roster

firearms and because he was the “responsible person” for a corporate FFL.

However, his as-applied vagueness challenge “must be examined in the light of the

facts of the case at hand.” United States v. Harris, 705 F.3d 929, 932 (9th Cir. 2013)

(quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)). Here, the jury was

instructed that to convict Arao, it had to find that he acted “willfully”—that is, Arao

knew he was acting unlawfully. Bryan, 524 U.S. at 191-92. Given that finding, we

cannot conclude that the statute “failed to put [Arao] on notice that his conduct was

criminal.” United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009). Nor can

California’s state law, or its interplay with federal law, render the federal §

922(a)(1)(A) void for vagueness. See United States v. Moore, 109 F.3d 1456, 1466-

67 (9th Cir. 1997).

AFFIRMED.