and Submitted December 7, 2018 Pasadena, California
from the United States District Court for the Central
District of California John F. Walter, District Judge,
Presiding No. 2:16-cr-00824-JFW-1.
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California, for Defendant-Appellant.
John-Alex Romano (argued), David M. Fuhr, and Anna G.
Kaminska, Trial Attorneys; John P. Cronan, Acting Assistant
Attorney General; Poonam G. Kumar, Assistant United States
Attorney; Nicola T. Hanna, United States Attorney; United
States Department of Justice, Criminal Division, Washington,
D.C.; for Plaintiff-Appellee.
Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit
Judges, and Benjamin H. Settle, [*] District Judge.
panel affirmed a conviction under 18 U.S.C. § 1957 for
engaging in a monetary transaction of over $10, 000 derived
from a "specified unlawful activity," in a case in
which the defendant, a citizen of South Korea who was
employed as a principal researcher and director at a
government-funded geological research institute in South
Korea, solicited and received payments from two seismometer
manufacturers in exchange for ensuring that the research
institute purchased their products, and gave the companies
inside information about their competitors.
"specified unlawful activity" articulated in the
indictment was, as defined in 18 U.S.C. § 1956(c)(7)(B),
"an offense against a foreign nation involving . . .
bribery of a public official;" and the offense against a
foreign nation involving "bribery of a public
official" was Article 129 of the South Korean Criminal
panel held that "bribery of a public official" in
§ 1956 is defined by that phrase's "ordinary,
contemporary, common meaning," and is not constrained by
the federal bribery statute, 18 U.S.C. § 201, a statute
to which § 1956 makes no reference. The panel held that
because the crime described in Article 129 fits comfortably
within the ordinary meaning of "bribery of a public
official" as used in § 1956, the indictment was
sufficient and there was no instructional error.
Heon-Cheol Chi, a citizen of South Korea, was employed as a
principal researcher and director at the Korea Institute of
Geoscience and Mineral Resources (KIGAM), a government-funded
geological research institute in South Korea. Over nearly
fifteen years, Chi solicited and received payments from two
seismometer manufacturers. In exchange, he ensured that KIGAM
purchased their products, and he gave the companies inside
information about their competitors. He asked the companies
to route his payments-which totaled over a million dollars-to
a bank account in the United States. An FBI investigation
ensued, and Chi was arrested on December 12, 2016.
indicted for six counts of violating 18 U.S.C. § 1957,
which criminalizes engaging in monetary transactions of over
$10, 000 derived from certain "offense[s] against a
foreign nation," including crimes involving
"bribery of a public official." 18 U.S.C. §
1956. The "offense against a foreign nation" here
was a violation of Article 129 of the South Korean Criminal
Code. The district court concluded that Article 129 could
properly be classified as describing an offense involving
"bribery of a public official," and the jury was
instructed on the elements of that offense. Chi was convicted
on one count, Count 6.
appeal, Chi argues that the district court misinterpreted the
term "bribery of a public official" as used in
§ 1956. According to Chi, "bribery of a public
official" is a reference to the federal bribery statute,
18 U.S.C. § 201, and the district court erred by failing
to ensure that the crime described in Article 129 fell within
the elements of the crime described in said § 201. We
disagree. We hold that "bribery of a public
official" in § 1956 is defined by that phrase's
"ordinary, contemporary, common meaning,"
Perrin v. United States, 444 U.S. 37, 42 (1979), and
is not constrained by 18 U.S.C. § 201, a statute to
which § 1956 makes no reference. Furthermore, because we
find the crime described in Article 129 of the South Korean
Criminal Code fits comfortably within the ordinary meaning of
"bribery of a public official" as used in §
1956, we find the indictment was sufficient and that there
was no instructional error. Accordingly, we affirm the
judgment of the district court.
is a government-funded geological research institute in South
Korea. KIGAM's Earthquake Research Center operates a
nationwide acoustic network to monitor seismic activity and
artificial blasts. In addition, it serves as South
Korea's data center for the United Nations Comprehensive
Test Ban Treaty Organization (CTBTO), which monitors nuclear
weapons tests around the world.
a seismologist at KIGAM. He worked as a principal researcher
and was the director of the Earthquake Research Center.
Additionally, he served on a technical working group for the
CTBTO, and he advised the President of South Korea on nuclear
weapons testing as well. KIGAM purchases and distributes a
large amount of geological equipment; over time, Chi became
intimately involved in the procurement process.
frequently purchased equipment from Guralp Systems, a
seismometer manufacturer in England. On September 7, 2015,
Guralp Systems' executive chairman, Christopher Potts,
noticed that the company had paid Chi "several hundred
thousand dollars" over the previous several years, which
"seemed like a large amount of money." Upon further
inspection, he discovered that Guralp Systems had paid Chi
"nearly a million dollars from 2003 through to
2015" pursuant to a one-page, hand-written consulting
agreement. But the letter didn't "look like a
consulting agreement at all." Potts became apprehensive
that the payments "could . . . be bribes."
discussing the matter with his associates, Potts confronted
Chi over lunch on September 15, 2015. He told Chi that he
believed the arrangement to be inappropriate and illegal. Chi
did not disagree, but promptly called "his boss or his
director," spoke briefly to him in Korean, and then
reassured Potts that his superior "had agreed that it
was okay to have an official agreement between [Guralp
Systems] and KIGAM." Potts declined such an arrangement.
the next several months, Chi attempted a variety of pricing
maneuvers to receive what he termed "advice fees"
from Guralp Systems. Potts consistently rebuffed him. In
December 2015, Potts confronted Chi again, this time at a
geophysics conference in San Francisco. Chi admitted that he
was a government official and that the previous arrangement
was illegal, but after the conference concluded, he renewed
his efforts to be paid. He emailed Potts asking for a
"consulting agreement" that would pay $300, 000
over the next three years, and demanded payment for services
rendered under the previous agreement. Potts never
replied. Instead, he notified the United Kingdom Serious
Fraud Office (SFO), which began an investigation. At some
point, the FBI became involved as well.
investigation revealed the existence of another company:
Kinemetrics, a seismometer manufacturer headquartered in
Pasadena, California. Like Guralp Systems, Kinemetrics paid Chi
money in exchange for recommending and purchasing their
products. In addition, Chi provided Kinemetrics information
about the company's competitors, sending them
confidential presentations from other manufacturers. Chi was
surprisingly candid in his communications with Kinemetrics,
often admitting that his conduct was against the law.
investigation also revealed a money trail. Because Chi had to
report his "cash flow . . . to [the] government every
year," he asked Kinemetrics and Guralp Systems to
deposit his fees in a Bank of America account in Glendora,
California. Between 2009 and 2016, the two companies wired
$1, 044, 690 to that account. Chi then transferred $521, 000
from the Bank of America account to a Merrill Lynch account
in Fort Lee, New Jersey. From there, he transferred the money
to his Citibank account in South Korea. None of the money was
ever transferred to KIGAM.
December 12, 2016, Chi flew to San Francisco for a seismology
convention, where the FBI arrested him in the airport. A
grand jury returned an indictment charging Chi with six
counts of engaging in monetary transactions derived from a
"specified unlawful activity," in violation of 18
U.S.C. § 1957. The "specified unlawful
activity" articulated in the indictment was-as defined
in 18 U.S.C. § 1956(c)(7)(B)-"an offense against a
foreign nation involving . . . bribery of a public
official." And the offense against a foreign nation
involving "bribery of a public official" was
Article 129 of the South Korean Criminal Code.
moved to dismiss the indictment on the ground that it did not
adequately allege the offense. He claimed that in addition to
alleging a violation of Article 129, the indictment was
required to allege a violation of 18 U.S.C. § 201, the
federal bribery statute. The district court denied Chi's
motion. During trial, Chi made a similar argument, suggesting
that the jury should be instructed on domestic bribery law in
addition to the elements of Article 129. The court rejected
that argument too. It agreed that "it must ensure that
the definition of 'bribery' under Article 129 of the
South Korea Criminal Code falls within the category of
conduct of a bribery of a public official, as contemplated by
Section 1956(c)." But it found that the definition in
Article 129 did fall within that category, thereby rejecting
Chi's claim. Importantly, the court read the translated
Article 129 to the jury.
jury ultimately convicted Chi on Count 6, which arose from a
$56, 000 check sent from the Bank of America account in
California to the Merrill Lynch account in New Jersey. It was
unable to reach a verdict on the five remaining counts. Chi
now appeals, arguing that the crime described in Article 129
of the South Korean Criminal Code must also fall within the
ambit of the crimes described in 18 U.S.C. § 201, and
that the indictment and jury instructions were in error as a
result. Chi also argues that the court incorrectly
interpreted South Korean law, and that insufficient evidence
supported his conviction on Count 6.
sufficiency of an indictment is subject to de novo
review. United States v. Berger, 473 F.3d 1080, 1097
(9th Cir. 2007). In addition, we review "the wording of
jury instructions for an abuse of discretion, but review de
novo whether jury instructions omit or misstate elements of a
statutory crime or adequately cover a defendant's