LOS ANGELES (CN) --- The Ninth Circuit on Monday struck down the 30-year sentence of an international arms dealer, finding he cannot be tried for charges that did not appear on his extradition request.
Authorities arrested Rami Najm Asad-Ghanem, a naturalized U.S. citizen, in Greece in December 2015 as part of an undercover investigation by the U.S. Department of Homeland Security. Ghanem tried to purchase multiple weapons from international buyers that would be sent to Libya, including sniper rifles, pistols, silencers and other weapons according to prosecutors.
Ghanem operated a company called Gateway to MENA while living in Egypt. He sold military supplies and logistics services in the region, but prosecutors say he was also a smuggler who declared his wares as as “juice” or “fruits” and bribed officials to forge legal shipping documents.
Prosecutors say Ghanem facilitated a $250 million contract for a militant group in Libya who used mercenaries to fire Russian-made missiles at Libyan government aircraft. He also sold missiles to the leadership of Hezbollah, a group designated as a foreign terrorist organization by the U.S. government.
Authorities took him down in a sting operation when he made a trip to Greece in 2015 to view a shipment of weapons bound for Libya. He agreed not to appeal the extradition process on the condition he was only prosecuted on the charges specified in the extradition order.
In April 2016, U.S. Marshals took him into custody at JFK Airport in New York and then he was sent to California. In March 2017, the government filed a superseding indictment in the Central District of California that added three new charges including conspiracy to violate the Arms Export Control Act and violation of the Arms Export Control Act. The third charge was specifically for selling missile systems designed to destroy aircraft.
Ghanem pleaded guilty to all the charges save for the one involving the sale of missile systems. After a nine-day trial in November 2018, a jury found Ghanem guilty of that charge. A judge sentenced him to 30 years in prison in August 2019.
But in a 40-page opinion published Monday, a Ninth Circuit panel vacated Ghanem’s conviction for selling the missile systems, vacated the sentence and remanded the case for resentencing and further proceedings.
Writing for the panel and sitting by designation from the Sixth Circuit, U.S. Senior Circuit Judge Danny Boggs noted the U.S. government was aware of Ghanem’s offer to broker missile systems before his arrest in Greece but did not charge him with that crime when seeking extradition.
The crux of the matter, Boggs wrote, is whether Ghanem’s arrest in Greece was in connection to the sale of the missile systems in violation of U.S. law 2332g. The trial judge gave a jury instruction saying that foreign arrests were irrelevant to the jury’s determination, but that was an error.
“If the court had not given the erroneous venue instruction, there is a reasonable likelihood that the jury may have acquitted Mr. Ghanem,” Boggs wrote. “Without the instruction, Mr. Ghanem would have been able to argue that the first restraint of his liberty in connection with the alleged violation of § 2332g was in Athens, not Los Angeles.”
That would have precluded a finding that he was first arrested for an offense in the Central District of California, which refutes the government’s venue theory according to Boggs.
“And, as we just held, a reasonable juror could have found it more likely than not that his restraint in Greece really was in connection with the alleged § 2332g offense. That is enough to say that the error was harmful,” Boggs wrote.
When Ghanem landed in New York from Greece, the venue he should have been tried in was the Eastern District of New York.
“The error was harmful, and we must therefore vacate his conviction,” Boggs, a Ronald Reagan appointee, wrote. U.S. Circuit Judges Milan Smith Jr., a George W. Bush appointee, and Mary Murguia, a Barack Obama appointee, joined the opinion.
The panel rejected Ghanem’s bid to have the charge dismissed entirely. Still, Ghanem's attorney Ben Coleman said he was pleased with the outcome --- noting the vacated charge carries a 25-year mandatory minimum sentence and a range under the United States Sentencing Guidelines of up to 30 years.
"The remaining counts of conviction carry a guidelines range that is significantly less and also do not require a mandatory minimum penalty," Coleman said in an email. "It is our hope that Mr. Ghanem will receive a significantly reduced sentence as a result of this appeal."
The U.S. Attorney's office did not respond to a request for comment.
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