When the FBI Comes Calling…®
TRAFFICKING IN ILLICIT ARMS (continued)
Exporting Munitions
22 U.S.C. § 2778
This statute prohibits and places obligations on a variety of activities.
One duty is that "every person (other than an officer or employee of the United States Government acting in an official capacity)" who is in the business of "manufacturing, exporting, or importing any defense articles or defense services designated by the President" must register with the United States Government and pay an appropriate registration fee. 22 U.S.C. § 2778(b)(1)(A)(i). Likewise, any such person who engages in the business of brokering activities related to the defense trade must register and pay a fee with the United States government. Id. § 2778(b)(1)(A)(ii)(I).
Furthermore, "no defense services designated by the President … may be exported or imported without a license" with only a couple of exceptions. Id § 2778(b)(2).
The Munitions List can be found here, and some of the items on it are completely expected: rifles, shotguns, silencers, and riflescopes manufactured to military specifications; 22 C.F.R. § 121.1; flamethrowers, kinetic energy weapons systems; Id.; warships, tanks, aircraft (including "non-expansive balloons"); Id.; and even military training equipment. Id.
But other things on the list are not as expected. Body armor, anti-gravity suits, pressure suits, helmets, goggles "designed to protect against lasers or thermal flashes," and even technical data on those items. Id. Also included are certain types of electronics and computers that are related to fire-control systems or cryptology. Id.
The Punishment
Any person who willfully violates section 2778, or willfully, in a registration or license application, makes any untrue statement of a material fact or omits to state a material fact to make the statements not misleading, can be fined up to $1,000,000, imprisoned up to 10 years, or both. Id. § 2778(c).
Case Law Interpreting Section 2778
A violation of this statute is "arguably the archetypal smuggling offense." United States v. Nathan, 188 F.3d 190, 204 (3d Cir. 1999). Furthermore, the munitions do not even need to be in working order for criminal liability to attach. United States v. Fu Chin Chung, 931 F.2d 43, 44 (11th Cir. 1991). In Fu Chin Chung, the defendant was caught in a sting operation and the defendant tried to argue that the Munitions List only applied to working items. Id. at 45. "There is nothing in the Arms Export Control Act, its legislative history, or the Department's regulations to support appellant's argument that a defense article must be in working condition to be on the United States Munitions List. In fact, the regulations, and the manner in which they are administered, undermine his argument." Id. This is because the items can't even be imported for "overhaul, repair, modification, or other purposes." Id. (citing 22 C.F.R. § 123.3).
To secure a conviction under 22 U.S.C. § 2778, the government must prove beyond a reasonable doubt "that the defendant … knowingly and willfully exported or attempted to export articles designated on the United States Munitions List without a license." United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985). The defendant in Ortiz-Loya also tried to argue that the evidence was insufficient to establish that he was attempting to go to Mexico when he was stopped. Id. Pointing to testimony that established that he had not yet crossed a "point of no return" by irrevocably committing himself to cross the border, the defendant argued that he could not have been found guilty of attempted exportation. Id. The Court disagreed though, saying that it is not necessary to reach a point of irrevocable commitment in order to be convicted of attempted exportation. Id.
We have discussed recent cases involving allegations of section 2778 violations here and here.
MANPADS
The threat of a shoulder-mounted surface-to-air missile [hereinafter SAM] being used against commercial aviation led Congress to pass the Commercial Aviation MANPADS Defense Act of 2004 [hereinafter MANPADS Act]. See P.L. 108-458, Title IV, Subtitle B, § 4026, 118 Stat. 3724. (MANPADS stands for man-portable air defense system, and it refers to any SAM system designed to be man-portable and carried and fired by a single individual. MANPADS Act, § 4026(e)(2)(A).) Under the MANPADS Act, the United States sentencing guidelines were amended to enhance any sentence by 15 levels if the offense involved "a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile." See U.S. Sentencing Guidelines Manual § 2K2.1(b)(3)(A). There are also sentencing enhancements for the number of SAMs that are involved. See id. at § 2K2.1(b)(1)(E).
It is a relatively new law, and it has been applied to two individuals, Chao Tung Wu and Yi Qing Chen, who have been indicted as part of "Operation Smoking Dragon," which also involved drug trafficking and counterfeit currency. We discussed particulars of the case on our transnational crimes blog, here.