The unanimous panel said a San Diego federal judge erred by barring evidence that China's Ministry of State Security had threatened to harm the family of defendant Chi Tong Kuok. The ministry is the Chinese equivalent of the CIA.
The appellate panel reversed and remanded for a new trial on counts one and two of a four-count indictment. It vacated count three (attempt to export without a valid license) and count four (transmitting money unlawfully), citing a lack of jurisdiction.
Count one charged conspiracy to export and smuggle prohibited products under 18 U.S.C. §§ 371 and 544(a) and the Arms Export Control Act, 22 U.S.C. § 2778(b)(2). Count two charged Kuok with smuggling or attempted smuggling under 18 U.S.C. § 554(a).
The panel noted that duress is a common-law defense that allows a jury to excuse a defendant's conduct, even in the face of proven violations by the U.S. government.
In this case, the panel said Kuok produced evidence that a ministry agent threatened to harm his wife. The agent allegedly said she would be placed in a “black jail” where the Chinese government puts people to “take them off the grid” if Kuok did not help to import U.S. military communications equipment into China, the panel noted.
On the U.S. side, exporting such products to any entity connected to the Chinese defense establishment violates the AECA. Kuok's alleged smuggling ended in 2009 after a successful 10-year run when federal agents arrested him at the Atlanta airport, the panel noted.
According to the government's trial brief, he was taken into custody at the Atlanta airport upon arriving from Paris en route to Panama as part of a deal to send a U.S. military communications encryptor to China.
The panel's reasoning in large part was based on the court's ruling in United States v. Contento-Pachon, 723 F.3d 691, 693 (9th Cir. 1980). In Contento-Pachon, the appellate court overturned the smuggling conviction of a Colombian national on a duress defense. The defendant had argued he only smuggled cocaine into the United States because a Bogota narcotics trafficker threatened to harm his family.
The defendant further claimed he could not escape the situation by reporting the treats to the Bogota police as officers there were on the payroll of drug traffickers.
The 9th Circuit overturned his conviction because the Colombian national was able to show that the threat by the trafficker was not veiled or vague but immediate and specific and that he had “no reasonable opportunity of escape.”
Likewise, in Kuok's case, the defendant was able to show with specificity that the state security ministry agent threatened to harm his family if he failed to purchase the U.S. equipment and get it shipped to a Chinese destination. He also alleged that fleeing China with his family while they were under surveillance was not a reasonable alternative.
The ruling in Kuok's favor was made despite the U.S. government's argument that the duress defense was properly excluded under United States v. Becerra, 992 F.2d 960 (9th Cir. 1993), the panel noted.
In Becerra, a Seattle waiter claimed an undercover narcotics agent posing as a Mafia member threatened to “take care” of his family if he refused to set up a cocaine deal with two drug dealers. The 9th Circuit ruled that no evidence of an immediate threat to the waiter or his family was proffered.
In Kuok's case, however, the 9th Circuit panel also found the threat to the Macau importer's family was “both immediate and serious.”
“In short, the ultimate fact finders may or may not accept Kuok's story, but he has alleged facts sufficient to present his defense to the jury,” the panel concluded.
