Jul
30
Army Captain Pleads Guilty To Arms Smuggling Charges
Posted by Clif Burns at 8:28 pm on July 30, 2008
Category: Criminal Penalties
Last week we reported that charges had been filed against a U.S. Army Captain for exporting EoTech holographic rifle sights to Japan without the required export license from the Department of State’s Directorate of Defense Trade Controls. Of particular interest was that the government charged Captain Iishiba for violating the overseas smuggling provisions contained in 18 U.S.C. § 555, rather than under 22 U.S.C. § 2778(c), the criminal provisions of the Arms Export Control Act. We speculated that this might be because the government believed that 18 U.S.C. § 555 had a relaxed scienter requirement such that the government would only have to prove that the export was knowing but not that it was a knowing violation of law.
On Monday, a plea agreement between Iishiba and the government was entered with the court. Iishiba pleaded guilty to violation of the federal conspiracy statute, 18 U.S.C. § 371 for conspiring to violate the overseas smuggling statute. The plea agreement, however, did not simply indicate that the exports were intentional, but also stated that Iishiba knew that the exports were in violation of law. Specifically, the plea agreement noted that Iishiba was aware that the exports were illegal because he “misidentified the contents of the packages on the export declaration forms.”
Given that the plea agreement seemingly acknowledges that 18 U.S.C. § 555 requires that the export be in knowing violation of law, the question remains as to why Iishiba wasn’t charged under the Arms Export Control Act as opposed to the anti-smuggling provision. The penalties under the two statutes appear to be the same, so that’s not the reason. Any ideas? Let us know your thoughts in the comments section.
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7 Comments:
Clif,
I think the statute you have in mind is actually 18 USC 554 rather than 555 and it appears to be a favorite of the U.S. Attorney’s Office for any exports, even those not so sensitive.
Regards,
Su
Actually, even though the statute was enacted as 18 USC § 554, that section already existed, and the provision was recodified at § 555. I have a note on this in the original post.
I follow export prosecutions fairly closely and I’m not so sure I would say that § 555 is favorite yet.
Clif –
In my experience, the decision-making process of what violation to actually charge varies between US Attorney’s offices. To one degree or another, the investigating agency has some say with the Assistant US Attorney purusing the case as to what violations will be charged, particularly in negotiated plea agreement scenarios.
In the case of 554/555, Customs (now ICE) had been trying for years to get this statute enacted – I was involved in such efforts while at Customs over 10 years ago. Now that they’ve got it on the books, they want to use it. Depending on the relationship between ICE and the USAO in Seattle (which in years past was pretty good), and the level of ICE’s involvement in this case, the explanation of why 554/555 was used versus the AECA could be so simple as ICE’s desire to see 554/555 used in a case – particularly one of the first cases of its application.
That said, yes, there is some feeling within ICE that 554/555 requires a lower standard of knowledge than does the AECA. But given what the plea agreement has to say on the knowledge point, it may be as simple as ICE’s desire to see the new statute used (albeit indirectly as the underlying violation to the conspiracy count).
Thanks, Mike, for your insight here. That seems a reasonable explanation for the use of 554/555. Of particular interest is the possibility that ICE thinks that there’s a lower standard of knowledge there. It wasn’t necessary to explore that here, of course, since Iishiba’s false declarations about the package contents would give you scienter under 2278(c) as well.
Clif – ICE will take the position that the standard of knowledge for 554/555, will be the same as that of the older companion smuggling statute, 18 USC 545. It will be interesting to see, in the long term, if the courts agree.
Mike – You are no doubt right about the position ICE will take. I for one find this a distressing trend. Given that BIS can oppose substantial civil penalties even where the exporter was unaware of the violation, it seems unfair to throw exporters in jail for things that they might not know was wrong.
Clif, I agree with you. When I was an investigator (and later a member of the ACRB at BIS), I never believed in pursuing cases where the evidence did not support each and every element of the offense, to include the requisite knowledge and intent. In fact, I believed my case was to get the facts and evidence, and let them tell us if a violation had been committed and, if it had, who was responsible and what level of culpability (to include the question of civil vs. criminal culpability) they had.
In my view, if people do not truly act with the knowledge and intent equalling “evil intent” to violate the law, they should not be charged with a criminal offense – because if they don’t so act, they didn’t commit a crime. Investigators and prosecutors should be devoted to finding the truth of a matter – to include when appropriate that folks did not act with the requisite knowledge and intent (or, to put it another way, to prove they did not in fact commit a criminal offense, and even that no offense at all was committed).
I used to shake my head at investigators who would complain that licensing officers had “undermined” their cases when they determined that no license was required (i.e., classification turned out to be EAR99, etc.) for the transaction in question. My explanation that that meant in fact that no offense had been committed, usually fell on deaf ears.
Unfortunately, that’s a minority view in federal law enforcement. Too many prosecutors and investigators see their job as proving that an offense has occurred, not with getting to the truth of whether or not that’s actually the case. Statistics are based, and careers and empires are built, on successful prosecutions, not on proving that people were innocent or that the law hasn’t bee violated.
As you note, there exist sufficient remedies – BIS’s strict liability infractions among them – to address cases where exports were made contrary to law or regulation, but the actors did not know what they were doing was a violation or intend to evade requirements. But again, prosecutors and investigators as a rule don’t build careers on civil, strict liability cases – they’re out to make the next big criminal case.
And of course BIS still doesn’t tell us how they draw meaningful distinctions, in deciding what penalties to impose, between strict liability vs. “knowing” offenses. I’m an advocate of imposition of a statutory framework for those distinctions, similar to the distinctions between penalties for negligence, gross negligence and fraud found in the customs import penalty statute, 19 USC 1592. That’s another minority view in the federal export law enforcement community – but one I think would bring principles of equity to the administrative penalties assessed for export infractions.
Of course, in the Iishiba case the defendant has chosen to enter into a plea agreement admitting the required knowledge and intent. Let’s hope that he understands what he is admitting to, and/or that he has competent counsel to ensure he doesn’t plead guilty to an offense he did not have the knowledge/intent to commit.
