United States v. Brian Keith Bishop

• Decision Date: 28 January 2014
• Docket Number: No. 13–4356.,13–4356.
• Citation: 740 F.3d 927
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian Keith BISHOP, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

740 F.3d 927

UNITED STATES of America, Plaintiff–Appellee,

v.Brian Keith BISHOP, Defendant–Appellant.

No. 13–4356.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 11, 2013.

Decided: Jan. 28, 2014.

ARGUED:Joseph Michael Hannon, Jr., Hannon Law Group, LLP, Washington, D.C., for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:William Coffield, Coffield Law Group, Washington, D.C., for Appellant. Neil H. MacBride, United States Attorney, Ronald L. Walutes, Jr., Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge DIAZ and Judge THACKER joined.

WILKINSON, Circuit Judge:

The Arms Export Control Act (AECA), 22 U.S.C. § 2778, regulates the export of “defense articles” such as ammunition, and subjects to criminal liability anyone who “willfully” violates its requirements. Brian Keith Bishop was convicted under the law for attempting to export small-arms ammunition to Jordan without a license. He appeals his conviction on two grounds: first, that he did not willfully violate the AECA because he did not know that it applied to the ammunition he attempted to export, and second, that there was insufficient evidence that he even knew that exporting the ammunition was generally illegal rather than merely a violation of administrative policy. We reject Bishop's contentions and affirm his conviction.

I.

A.

In 2011, Bishop worked as a financial-management Foreign Service Officer (FSO) at the U.S. embassy in Amman, Jordan. Pursuant to the State Department's policy of shipping employees' personal effects overseas at government expense, Bishop sought in the summer of 2011 to ship certain personal possessions from his parents' home in Alabama to Jordan via a government contract carrier, Paxton Van Lines (Paxton). Bishop, who describes himself as an “avid hunter and sportsman,” Appellant's Br. at 2, included nearly 10,000 rounds of small-arms ammunition in his shipment: 9mm, 7.62X39mm (for use in AK–47 assault rifles), and .45–caliber rounds, as well as 12–gauge shotgun shells. Bishop had purchased the ammunition from Cabela's Sporting Goods (Cabela's), and, pursuant to federal law, the Cabela's boxes containing the ammunition were labeled “ORM–D” and “cartridges, small arms.”

The day before the movers arrived, Paxton's subcontractor dispatched one of its employees, Brian Davis, to survey the shipment. Davis testified that Bishop informed him that Bishop was moving “weights” and neglected to mention ammunition. When workers loaded Bishop's shipment the next day, some of the ammunition remained in the Cabela's boxes, while the rest had been transferred to unlatched hard-shell pelican cases. Bishop's father testified that, when the shippers asked Bishop what was inside the cases, Bishop replied “bullets.” The inventory of shipped items signed by Bishop, however, did not reference the 366 pounds of ammunition included in his household effects, instead listing them as weights. Bishop also signed a statement certifying that his belongings did not include “any unauthorized explosives, destructive devices or hazardous materials.” An internal email between Paxton employees suggested that Bishop “did not like [the movers] questioning him on what he was shipping,” and that he had organized his possessions so as to discourage the movers from inspecting them.

The movers transferred Bishop's items to a Paxton warehouse in Springfield, Virginia. At the warehouse, Paxton employees determined that certain items required repackaging, and Bishop's ammunition was discovered during the repacking process. According to one employee, the ammunition was removed from boxes labeled “weights” on the inventory, but that one of the boxes did in fact contain a single small weight. Two days later, Paxton alerted the State Department, and special agents with the State Department's Diplomatic Security Service (DSS) ultimately took custody of the ammunition. The Paxton employee in charge of Bishop's shipment testified that, when she called Bishop and told him that ammunition had been discovered, he asked her whether the State Department knew how much ammunition he had attempted to ship. She also testified that Bishop told her that the ammunition was a gift for a government official for which he would be repaid, and that she should not speak with any of the Jordanian nationals at the embassy about the shipment.

A little over a year later, DSS agents interviewed Bishop and informed him that an arrest warrant had been issued for violations stemming from his attempted shipment of the ammunition. Bishop waived his Miranda rights and, according to the agent who interviewed him, admitted to the attempted shipment. The agent testified that Bishop claimed the ammunition had been intended for his recreational use at firing ranges and for shooting with “veteran tribesmen in the desert,” and that he attempted to ship the ammunition because it would have been prohibitively expensive to purchase it in Jordan. The agent also testified that Bishop admitted that he had known that the embassy prohibited FSOs from having firearms, that he had a shotgun in his residence without his wife's knowledge, and that he had lied the previous year when he told a DSS agent that he did not have any firearms in his residence.

B.

In September 2012, a federal grand jury returned a two-count indictment against Bishop relating to his attempted transportation of the ammunition. As amended, Count I of the indictment charged Bishop with a violation of the AECA and its implementing regulations. Specifically, the indictment alleged that Bishop “knowingly and willfully attempt[ed] to export from the United States to Jordan, without having first obtained from the Department of State a license for such export, or written authorization for such export, defense articles, to-wit: approximately 7,496 rounds of 9mm and 7.62 x 39mm ammunition, which are designated as defense articles on the United States Munitions List, Category III.” Count II charged Bishop with delivering ammunition to a common and contract carrier, Paxton, without notice in violation of 18 U.S.C. § 922(e). Count II covered not only the ammunition identified in Count I, but also the nearly 2,000 rounds of .45–caliber and 12–gauge shotgun ammunition included in the shipment.

Bishop waived his right to a jury trial. At the bench trial, the government argued that Bishop willfully shipped the prohibited ammunition in violation of the AECA. The government relied in part on an email sent by Paxton to Bishop's wife (and then forwarded to Bishop) which stated that ammunition was a “prohibited item in th[e] shipment.” Among the witnesses the government called was a DSS agent who testified that, prior to traveling to Alabama to arrange his effects, Bishop had asked the agent if he was permitted to use firearms while in Jordan, and was told that he was “not allowed to have firearms in accordance with mission policy.”

The government also called Mette Beecroft, a State Department official responsible for educating State Department employees on the rules and regulations governing travel. Beecroft testified that the State Department maintains a Foreign Affairs Manual (FAM), a collection of regulations for FSOs, including those governing travel and transportation. The FAM prohibits the shipment of ammunition in household effects in three separate sections. One section identifies 27 C.F.R. § 478 as authority for the FAM's ammunition provisions. This regulation, in turn, states that ammunition exports are subject to the AECA. Another FAM section puts employees on notice that shipping ammunition may require special accommodations. It notes, for instance, that household effects may not include ammunition and further states that federal law may “prohibit commercial shipment of certain articles in” this section. 14 U.S. Dep't of State, Foreign Affairs Manual § 611.5. The third section informs employees that “[a]mmunition, a hazardous cargo, requires special handling and labeling,” and that it is the responsibility of each FSO to check with their post “to determine the restrictions and limitations, if any, that are placed upon the shipment of personally owned firearms or ammunition into the country of assignment.” Id. § 611.6–2.

According to Beecroft, all State Department employees are required to participate in an orientation program that introduces them to the rules contained in the FAM, including those pertaining to the transport of ammunition. Beecroft testified that, in every training class, she stresses that shipping ammunition is not permitted. Beecroft also described a manual entitled “It's Your Move,” which is mentioned during training and is available to all State Department employees both in print and online. The manual repeatedly prohibits the shipment of ammunition as a household effect, and notes that the penalties for improper shipment of hazardous items include imprisonment. On cross-examination, Beecroft admitted, “I can't tell you what the State Department's reasoning is” for prohibiting the shipment of ammunition.

In response, Bishop called Luis Roque, former branch chief for the State Department's transportation-management bureau and the individual who initially dealt with the ammunition when Paxton contacted the State Department. Roque testified that, despite overseeing the shipment of all household effects for the State Department, he was “desperate” for advice on how to proceed upon being alerted of the discovery of the ammunition. He initially instructed Paxton to dispose of the ammunition with the assistance of the fire marshal. He subsequently contacted diplomatic security experts, who countermanded his prior instruction.

Bishop also called the Regional Security...