United States v. Nadirashvili, No. 08-4211-cr (2c Cir. August 23, 2011) (Winter, Pooler, Hall, CJJ)
Six-defendant appellants appealed their convictions in a wide-ranging firearms conspiracy that had both international and domestic components. One part of the activity involved trafficking in “foreign defense articles” – here, grenades, warheads, missiles and launchers, amongst other things – under 22 U.S.C. 2278(b), and the other part involved domestic firearms trafficking under 18 U.S.C. § 922(a)(1)(A). Apart from one sentencing glitch, the circuit affirmed.
The opinion contains two interesting discussions of statutory requirements that the criminal activity involve those who are “in the business” of weapons dealing.
First, two defendants argued that there was insufficient evidence to support their § 922(a)(1)(A) convictions because they were aware of only a single gun transaction, and the evidence did not show that they knew the seller was engaged in the business of trafficking in firearms. The court agreed that the statute requires proof of “more than just a single sale of weapons,” since the statute uses the phrase “engaged in the business” of dealing in firearms and defines this as involving their “repetitive purchase and resale.” But the evidence is sufficient under this section where a seller holds himself out as a source of firearms who is ready to procure them for his customers. The evidence supported this, albeit barely, since while “[p]erhaps not every rational trier of fact would” convict on the evidence here, at least some might, and that was enough.
Next, the court considered – and rejected – an “as applied” vagueness challenge to 22 U.S.C. 2278(b)(1)(A)(ii), which covers “engag[ing] in the business of brokering activities with respect to … any defense article.” Brokering includes any action that “facilities the manufacture, export, or import of a defense article.” While the court suggested that there might be “ambiguity at the outer reaches” of this definition – perhaps merely providing information about prices and availability might be problematic – here the challenge failed, since the defendant’s activities clearly fell within its intended scope.
Finally, the court agreed that, for one defendant, the district court used the wrong evidentiary standard for certain sentencing enhancements. The court applied a preponderance standard but, this case was governed by the conspiracy guideline, § 2X1.1(a). This section provides that for a conspiracy that is not covered by a specific offense guideline, the court should apply the base offense level from the guideline for the substantive offense, plus any adjustments from that guideline for “any intended offense conduct that can be established with reasonable certainty.” Since the offense level adjustments in guideline section 2K2.1(b) “make no mention of a conspiracy,” the court should have applied the “reasonable certainty” standard instead of the preponderance standard.