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United States v. Chhun

United States Court of Appeals, Ninth Circuit

March 11, 2014

YASITH CHHUN, Defendant-Appellant

Argued and Submitted, Pasadena, California: November 4, 2013.

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:05-cr-00519-DDP-1. Dean D. Pregerson, District Judge, Presiding.

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.

Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea.


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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'é tat 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). 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 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

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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 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 ยง 956(a)'s " antiterrorism" 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 ...

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