Now let’s hear about the case from Special Agent Raymond R. Parmer, Jr., who quickly reveals that he doesn’t understand at least some of the laws that the taxpayers pay him to enforce:

“The Skyraider aircraft, its cannons and parts are all subject to import licensing requirements as ‘defense articles’ under the Arms Export Control Act. Federal law prohibits the importation of defense articles without a license or permit,” said Raymond R. Parmer, Jr., special agent in charge of Homeland Security Investigations (HSI) in New Orleans. “ICE aggressively investigates these cases in order to deter this type of illegal activity and protect those who abide by our nation’s laws.” Parmer oversees responsibility for the states of Alabama, Mississippi, Arkansas, Tennessee and Louisiana.

Er, no. The aircraft and the cannons are subject to import licensing requirements as “defense articles.” The parts, well, not so much. Permanent imports of defense articles into the United States are governed by the United States Munitions Import List, which is a subset of the United States Munitions List. Not everything on the USML requires a license for permanent (as opposed to temporary) import into the United States. And aircraft parts are one of those things.

Aircraft parts are covered by Category VIII(h) of the USML. Now let’s take a look at Category VIII of the USMIL:

NOTE: Category VIII (b) through (j) and Categories IX, X, XI, XII and XIII of ‘‘Munitions List’’ deleted as inapplicable to imports

Oops. Maybe Agent Parmer ought to try actually reading the USMIL before speaking up in a press release about what does and does not require an import license.

Not surprisingly, this is not the first time of which I am aware where ICE agents failed to understand that the USML and the USMIL are not co-extensive. I was involved in a case where my client was being prosecuted for illegal exports that the client was alleged to have made to undercover federal agents. During the course of plea negotiations, an ICE agent came zooming in with an announcement that Customs had seized some military electronics that my client was said to be illegally importing without a license, citing Category XI of the USML. The agent urged additional criminal charges and the end of the plea-bargain discussions. I pointed out to the U.S. Attorney involved that Category XI was not on the USMIL and that permanent imports of military electronics did not require a license. He was sufficiently irate over the ICE agent’s misrepresentation of applicable law that he made the agent personally deliver the improperly seized items to my client at my client’s facility.

But the story of the Tomcat jets gone wild, however amusing that might be, is not why I mention the Union-Tribune story. It’s this:

Federal officials got wind of the planes during an investigation that began with a probe of illegal arms sales to Iran by [Multicore Ltd], a Bakersfield company.

Company paperwork indicated that a former California parts dealer, Greg Forbes, had sold an F-14 canopy to Multicore, said Clark Settles, a U.S. customs agent who handled the case.

During a sting operation, Forbes agreed to get another F-14 canopy to a federal agent and obtained it from the Yanks museum, which led eventually to discovery that the four jets were improperly released by the Navy and that there was no documentation that they were properly demilitarized.

Meanwhile, the deal with Forbes fell through when he contacted the FBI to report his belief that the undercover agent was an Iranian official, court records indicated.

Forbes said he became suspicious when the agent uttered the word “Iran.”

“I said, ‘You can’t sell it to Iran. You have to have an export license,’” Forbes told the Los Angeles Times Wednesday. “Then that’s when I called the FBI and DCIS. I called Customs, even.”

The modus operandi of ICE here is interesting. They found the names of everyone who had sold anything to Multicore and then sent undercovers to try to see if they could induce them to sell parts directly to Iran. There is nothing to suggest here that the government had any reason to believe that Forbes was inclined to sell parts to Iran before ICE cooked up its sting operation.

Courts have held that the government is not required, of course, to have probable cause before initiating a sting operation. But a persuasive and definitive opinion by Judge Posner in United States v. Hollingsworth on another ICE sting operation makes clear that where the government lacks at least some prior indication that the sting victim may be interested in committing a crime, a defense of entrapment may be available:

There is no evidence that before [the ICE agent] began his campaign to inveigle [the defendants] into a money-laundering scheme either [of the defendants] Pickard or Hollingsworth had contemplated engaging in such behavior, beyond what little can be inferred from Pickard’s evident familiarity with the requirement of reporting large cash deposits and his suspicion of government informers. . . . A reasonable jury could have found Pickard and Hollingsworth “predisposed” if the term refers merely to a psychological state of willingness to break the law. But if the concept of predisposition is to serve the purpose of the doctrine of entrapment, it must mean more–must connote opportunity (what we are calling “readiness”) as well as willingness.

Just because someone sold parts to Multicore which later sold them to Iran is no indication that the parts dealer is likely to, or ready to, sell parts to Iran. ICE would probably do itself (and law enforcement in general) a favor by trying to catch illegal exporters rather than trying to turn ordinary merchants into criminals.