United States v. Burden

• Decision Date: 20 August 2019
• Docket Number: No. 17-3018,C/w 17-3019,17-3018
• Citation: 934 F.3d 675
• Parties: UNITED STATES of America, Appellee v. Pheerayuth BURDEN, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

934 F.3d 675

UNITED STATES of America, Appellee

v.Pheerayuth BURDEN, Appellant

No. 17-3018

C/w 17-3019

United States Court of Appeals, District of Columbia Circuit.

Argued January 16, 2019

Decided August 20, 2019

Lindsay C. Harrison, pro bono, Washington, DC, argued the cause and filed the briefs for appellant. James Dawson entered an appearance.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: Henderson, Rogers and Pillard, Circuit Judges.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Rogers.

Pillard, Circuit Judge:

The Arms Export Control Act (AECA) criminalizes exporting defense articles without a license. 22 U.S.C. § 2778(b)(2), (c). Pheerayuth Burden, a U.S.-resident Thai national who ran a business exporting goods from the United States to Thailand, and his export business, Wing-On LLC (collectively, the defendants), exported five assault-rifle magazines and a grenade-launcher mount. Following a three-week trial, a jury convicted the defendants of conspiracy to violate the AECA, unlawful export in violation of the AECA, and conspiracy to launder money.

The defendants contend that three of the district court’s rulings are reversible error. First, they argue that the court erred in admitting video deposition testimony by a key witness over a Confrontation Clause objection where the government itself rendered the witness "unavailable" at trial by deporting him shortly before trial without first making reasonable efforts to arrange his return. Second, they challenge a jury instruction defining the "willfulness" element of unlawful exportation of defense articles as requiring only proof that the defendants "acted with knowledge that the conduct was unlawful." That instruction was inadequate, they contend, because it failed to tie the willfulness finding to the pertinent conduct and law, creating an impermissible risk that the jury relied on evidence that Burden thought he was violating Thai import law. Third, defendants claim that the district court erred in admitting Burden’s non-Mirandized statements because it failed to account for his limited English abilities in determining that he was not in custody when agents interrogated him.

We hold that the district court erred in admitting the deposition testimony because the government failed to make reasonable efforts before it deported the witness to procure his presence at trial. We conclude that the jury instruction was correct as far as it went in instructing the jury to find that "the defendant knew that his conduct was unlawful," and that "willfully" violating the law does not require proof "that a defendant had read, was aware of, or had consulted the licensing provisions of the Arms Export Control Act" as such. Appellants’ Appendix (App.) 66. But we suggest clarification of the willfulness instruction to more squarely require a finding that defendants were aware of and knowingly violated their legal obligation not to commit the charged actus reus . A case such as this one—that includes evidence of consciousness of guilt relating to distinct actus reus arguably violating different, uncharged legal obligations—creates some risk of the jury relying on evidence of consciousness of guilt unrelated to the charged crime. We affirm the district court’s determination that Burden was not in custody because, even assuming language proficiency is relevant to the custody inquiry, a reasonable officer would not have thought Burden’s imperfect English meant a reasonable person in his position would have believed himself detained during the interview.

Because the error we identify was not harmless, we vacate the judgments and remand for proceedings consistent with this opinion.

BACKGROUND

A. Legal Background

The AECA establishes executive-branch control over the export and import of "defense articles," meaning arms or other military items. See 22 U.S.C. § 2278. It authorizes the President, "[i]n furtherance of world peace and the security and foreign policy of the United States," to control the export of defense articles and services, designate which items count as defense articles and services, and promulgate regulations for those purposes. Id. § 2778(a)(1). The designated defense articles make up the United States Munitions List (the Munitions List or the List). Id. With certain enumerated exceptions, "no defense articles or defense services designated by the President" as part of the Munitions List "may be exported or imported without a license for such export or import, issued in accordance with" the AECA and its associated regulations. Id. § 2778(b)(2). The State Department is responsible for issuing licenses. See id. ; 22 C.F.R. §§ 120.1, 120.20. The decision whether to issue an export license implicates sensitive issues of national security and foreign policy. It must "take into account whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of ... arms control or nonproliferation agreements or other arrangements." 22 U.S.C. § 2778(a)(2). The statute criminalizes "willfully violat[ing] any provision of this section ... or any rule or regulation issued under this section." Id. § 2278(c). It thus criminalizes willfully exporting defense articles without a license.

The President delegated to the Secretary of State the authority to designate defense articles and promulgate regulations under the AECA, see Exec. Order No. 13637, 78 Fed. Reg. 16,129 (2013) ; 22 C.F.R. § 120.1(a), and the Secretary accordingly promulgated the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120.1 - 130.17. The ITAR prohibits exporting defense articles and services without "obtaining the required license or other written approval" from the appropriate office of the State Department. 22 C.F.R. § 127.1(a). The ITAR also includes the Munitions List, which runs to over forty pages in the Code of Federal Regulations. See id. § 121.1. The covered defense articles are described with varying levels of specificity, such as "[r]iflescopes manufactured to military specifications," id. (Category I(f)), "[g]uns over caliber .50," id. (Category II(a)), "[i]ron powder ... with particle size of 3 micrometers or less produced by reduction of iron oxide with hydrogen," id. (Category V(c)(4)(i)(B)), and "[h]elmets ... providing a protection level equal to or greater than NIJ Type IV," id. (Category X(a)(6)). The convictions in this case relate to items in Category I(h) of the Munitions List: "Components, parts, accessories and attachments" for the firearms listed in Category I(a)-(g). See App. 89-90.

B. Factual and Procedural Background

Burden started Wing-On LLC (Wing-On), a freight-forwarding business that shipped American goods to Thailand, around 2008. In 2010, Kitibordee Yindeear-Rom became one of Burden’s customers. A Thai national living in Thailand, Yindeear-Rom had a business importing many different types of goods from the United States to Thailand. As part of that business, he helped his customers get gun parts and accessories from the U.S. that they could not purchase directly because U.S. companies would neither accept Thai credit cards nor ship the parts to Thailand. According to Yindeear-Rom, Burden initially ordered gun parts for him from U.S. vendors, received them in the United States, then shipped them to Thailand. Supplemental Appendix (S.A.) 291A-91B. Yindeear-Rom later began placing the orders himself using a debit card attached to a U.S. bank account Burden opened. S.A. 294-96, 479. Yindeear-Rom testified in his deposition that he reimbursed Burden for the purchases he made on Burden’s debit card by transferring money to Thai bank accounts belonging to Burden and Burden’s associate. S.A. 298-300. Neither Burden nor Wing-On had a license to export defense articles on the Munitions List.

In October 2013, Yindeear-Rom took a vacation to the United States, where he was stopped and interviewed by Department of Homeland Security (DHS) agents. He was arrested two days later for conspiracy to violate American export laws. He later pleaded guilty and was sentenced to thirty-six months in prison. At Yindeear-Rom’s initial court appearance, the DHS agents saw in the courtroom two people they believed to be Burden’s wife and roommate, respectively. Concerned that Burden might have been alerted to the investigation, the agents went immediately to Wing-On’s warehouse. Burden was not there, but the agents met one of his employees, who helped the agents call him. They called him again later that day and arranged an interview for that evening at the warehouse.

The DHS agents interviewed Burden in English without an interpreter. They did not advise Burden of his rights with the familiar warnings officials must give suspects in custodial interrogation under Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the beginning of the interview, one of the agents gave the following preamble (recounted here with Burden’s affirmative interjections omitted):

We are federal agents for the U.S. Government so I have to let you know that you have to be honest with us[,] okay? If you don’t want to answer something, you don’t have to answer but you cannot lie to us. All right? And you can’t withhold relevant information. If you do, that is a crime. Okay? Punishable by up to five years in prison so just please be honest.

App. 174. The agent then asked, "Is your English good?" Id. Burden replied, "A little bit." App. 175. "If there’s anything that I say that you don’t understand, ask me," the agent said. Id. "Okay," Burden replied. Id. During the interview, Burden admitted he had shipped gun parts to...