The decision in United States v. Burden, decided back in November of 2016, is not breaking news, but as I’ve seen several commentaries on it recently, I thought I might weigh in.  The defendants in that case argued that they had not violated the Arms Export Control Act because — get this — ammunition magazines and grenade launcher mounts, according to the defendants, are not defense articles. The defendants argued that these items are not defense articles because they can also be used with airsoft guns.  Accordingly they claimed the magazine and mount are not defense articles as defined in section 120.4 of the International Traffic in Arms Regulations and no license was required for their export.   This is pretty much like arguing that cannons are not defense articles because you could use them in circuses to shoot people into trampoline nets.

For reasons that are not clear, this led the District Court to actually consider whether these items were defense articles or not as defined in section 120.4.  That section deals with commodity jurisdiction determinations and had no relevance to the case under consideration.  The question properly before the court was whether the grenade mounts and ammunition magazines are on the United States Munitions List (“USML”), not whether they are defense articles.

If the items are on the USML, they are by definition defense articles.   The very first sentence of the USML makes this crystal clear:

U.S. Munitions List. In this part, articles, services, and related technical data are designated as defense articles or defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act.

This means that the only real question the court had to answer was whether the grenade mount and ammunition magazine were described in Category I(h) of the USML which covers “[c]omponents, parts, accessories and attachments” of firearms described in Category I, subparts (a) through (h). It doesn’t matter that these items can be used on airsoft or paintball guns any more than it matters that a cannon can be used in a circus act or a performance of the 1812 Overture. Certainly the magazine meets the definition of a component and the mount meets the definition of an attachment and that, pretty much, should have been the end of it.

Even so, the court decided that the items were defense articles not because they were on the USML but because an expert witness from DDTC said that they were defense articles. The expert in question was Robert Warren, formerly Division Chief of the Plans, Personnel, Programs, and Procedures Division of DDTC, an odd choice in comparison to, say, the division chief for the division that handles licensing for firearms.  In any event, the court noted that Warren testified that “a defense article as we termed it is anything that has a military significance or military application.”  And that, according to the court, settled the question as to whether the mount and the magazine were defense articles.

Of course, the idea that something is a defense article if it has a military application is the equally stupid mirror argument to the defendants’ nonsensical claim that something is not a defense article if it has a non-military use.  Under the standard articulated by Warren, a water canteen purchased at a camping store or a pair of camo pants purchased from a clothing store would be defense articles.

As noted above, there was no need for anyone to dive down this rabbit hole and figure whether the mount and the magazine were defense articles.  If they were described by Category I(h) as attachments and components of firearms then they were defense articles.  End of story.  No further proof as to whether they were defense articles was necessary.   And, given that the defendants did not appear to dispute that these items were components and attachments of firearms but only that they were defense articles, it is not unfair to accuse them of raising the fabled Chewbacca defense.

Photo Credit: Human Cannonball by Laura LaRose [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/6shAzP [cropped and processed]. Copyright 2009 Laura LaRose

ABOVE: Cobray M-11 Pistol

Two geniuses in Georgia hit on what they must have imagined was the perfect crime: sell guns to foreigners anonymously on the dark web; get paid anonymously in Bitcoins; make a billion dollars; spend the rest of their lives watching extreme wrestling and tractor pulls on cable TV. Except, of course, what really happened means that their cable TV viewing options over the next few years are likely to be extremely limited.

Even if, as the dog in the famous cartoon tells the other dog, “on the Internet nobody knows you’re a dog” (or a gun smuggler), you can’t stay on the Internet forever. Not surprisingly, even though the two defendants tried to cloak themselves behind the dark web and supposedly anonymous cryptocurrency, they still had to leave their computers, buy the guns, take them to the post office and ship them to real people. And that, as they say, was all she wrote.

According to the indictment, the two defendants, Gerren Johnson and William Jackson, who used the pseudonyms CherryFlavor and CherryFlavor_2, first captured the attention of authorities when a 9mm pistol was “recovered” in the Netherlands from a buyer who said he bought the gun from dark web vendor named CherryFlavor. Shortly thereafter Australian customs recovered another pistol hidden in a karaoke machine (see, nothing ever good comes from karaoke), and the Australian buyer also identified his seller as CherryFlavor.

And here’s how the feds figured out who was hiding behind the CherryFlavor screen name: according to the indictment, Johnson bought an unusual gun, a Cobray Model M-11 Georgia Commemorative 9mm pistol from a dealer in Georgia. Two days later he posted the gun for sale on his dark web site. Now the feds had the link they needed: a non-virtual gun dealer making a real sale in the real world to a real person of a real gun that then shows up on CherryFlavor’s page. Game over.

The interesting thing is what Messrs. CherryFlavor are charged with in the indictment. The first count is operating an unregistered firearms business. The second and third counts are for exports of two guns in violation of the anti-smuggling statute, 18 U.S.C. 554, which forbids exports from the United States “contrary to any law or regulation of the United States.” Oddly, the law said to be violated was not the Arms Export Control Act but 18 U.S.C. § 922(e) which prohibits shipping a firearm without disclosing to the shipper that a firearm is being shipped.

So why aren’t the defendants charged with what appears to be a clear violation of the Arms Export Control Act? We know that prosecutors have argued, not very persuasively, that the knowledge requirement for violations of section 554 is just an intentional export without any requirement that the defendant knows the intentional export is in violation of law. But here, if the allegations of the indictment are true, the case that the defendants knew what they were doing is, as they say, a slam dunk. They sold guns to foreign customers using pseudonyms on the dark web in exchange for Bitcoins and sent the guns hidden in karaoke machines. Criminal intent does not get much clearer than that. My guess is that there is more going on here than Dumb and Dumber selling guns on the dark web. Charges like this suggest that the prosecutors have negotiated with the defendants in exchange for some broader cooperation. If that’s true, it will be interesting to see what happens next.

UPDATE:  Commenter “Name” makes a good point: because the case is in the 11th Circuit, the prosecution has to deal with a stricter intent requirement and has to show that the defendants knew that an export license was required.  See United States v. Macko, 994 F.2d 1526 (11th Cir. 1993).  The defendants’ concealment of the gun in a karaoke machine shows a knowledge of illegality but, perhaps, not necessarily a knowledge of a license requirement under the AECA.  It was for this reason, the commenter said, that the charge was under 18 U.S.C. § 554, which might not be subject to the stricter intent requirement.  Commenter “Name” used a VPN to conceal his/her identity and location, so I suspect this is a person who has some actual knowledge of why the government charged this case the way it did.