U.S. v. Yakou

• Decision Date: 09 May 2005
• Docket Number: No. 04-3037.,04-3037.
• Citation: 428 F.3d 241
• Parties: UNITED STATES of America, Appellant, v. Sabri YAKOU, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 241

428 F.3d 241

UNITED STATES of America, Appellant, v. Sabri YAKOU, Appellee.

No. 04-3037.

United States Court of Appeals, District of Columbia Circuit.

Argued November 4, 2004.

Decided January 4, 2005.

As Amended May 9, 2005.

Appeal from the United States District Court for the District of Columbia (No. 03cr00449-01).

Lisa H. Schertler, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher, Wendy L. Wysong, and Laura A. Ingersoll, Assistant U.S. Attorneys. Roy W. McLeese III, Assistant U.S. Attorney, entered an appearance.

Matthew M. Hoffman argued the cause for appellee. With him on the brief was John Moustakas.

Before: HENDERSON and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in the judgment filed by Circuit Judge KAREN LeCRAFT HENDERSON.

ROGERS, Circuit Judge.

The United States appeals the dismissal of the indictment alleging that Sabri Yakou engaged in brokering activities in violation of the Arms Export Control Act ("AECA"), 22 U.S.C. § 2778(b)(2), (c) (2000), and its implementing regulations, the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. §§ 129.2(a)-(b), -.3, -.5 to -.7 (2004). The United States contends that the district court made three errors of law by: dismissing the indictment before trial, when the Federal Rules of Criminal Procedure do not provide a mechanism for summary judgment; ruling that lawful permanent resident ("LPR") status can change without formal administrative action by immigration officials, such that Yakou was not a "U.S. person," as defined by the ITAR, who is subject to prosecution for brokering activities; and ruling that Yakou could not be indicted separately under 18 U.S.C. § 2 as an aider and abettor of his son's alleged brokering violations. This court has jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm the dismissal of the indictment.

I.

A.

The AECA authorizes the President to establish the "United States Munitions List," 22 U.S.C. § 2778(a)(1), which includes "defense articles" and "defense services" whose import and export is subject to registration and licensing requirements, id. § 2778(b). It authorizes the President "to promulgate regulations for the import and export of [defense] articles and services." Id. § 2778(a)(1). The registration and licensing requirements originally extended only to those individuals "engage[d] in the business of manufacturing, exporting, or importing" the articles and services on the Munitions List. Id. § 2778(b)(1)(A)(i); see also id. § 2778(b)(2). In 1996, however, Congress enacted the Brokering Amendment, which expanded the scope of the AECA's registration and licensing requirements to cover "every person ... who engages in the business of brokering activities with respect to the manufacture, export, import, or transfer of" the articles and services on the Munitions List. Id. § 2778(b)(1)(A)(ii)(I). The Brokering Amendment defines "brokering activities" as "the financing, transportation, freight forwarding, or taking of any other action that facilitates the manufacture, export, or import of a defense article or defense service." Id. § 2778(b)(1)(A)(ii)(II). Willful violation of the Brokering Amendment and its implementing regulations is subject to criminal prosecution with imprisonment upon conviction for up to ten years and a fine of not more than one million dollars. Id. § 2778(c).

The ITAR, promulgated by the State Department pursuant to Executive Order 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977), defines the class of persons subject to the licensing and registration requirements of the Brokering Amendment as "[a]ny U.S. person, wherever located, and any foreign person located in the United States or otherwise subject to the jurisdiction of the United States." 22 C.F.R. § 129.3(a).¹ In so construing the Brokering Amendment's reference to "every person," 22 U.S.C. § 2778(b)(1)(A)(ii)(I), the ITAR reflects the legislative history revealing that in enacting the Brokering Amendment Congress was focusing on "U.S. persons" and "foreign persons located in the [United States]," and was concerned particularly with "U.S. persons [who] are involved in arms deals that are inconsistent with U.S. policy." H.R. REP. No. 104-519(I), at 11, 12 (1996) [hereinafter HOUSE REPORT]. It is undisputed that Yakou is not a United States citizen, that the indictment does not allege that Yakou engaged in brokering activities within the United States, and that the United States does not argue that he is otherwise subject to the jurisdiction of the United States for the purposes of ITAR. Therefore, United States must show that Yakou is a "U.S. person." The ITAR defines a "U.S. person" as one "who is [a] lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) [the Immigration and Nationality Act (`INA')]." 22 C.F.R. § 120.15. The cross-referenced provision of the INA, in turn, defines the term "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C.A. § 1101(a)(20) (2004).

B.

The material facts were undisputed in the district court. Sabri Yakou was born in 1934 in Iraq, and he predominately lived there until the mid-1970s when he moved with his family to Great Britain. In 1986, Yakou followed his children to the United States, where he began to live and work pursuant to a L-1 visa. In 1989, his application for LPR status in the United States was approved, and he was issued a "green card." A few years later, he was naturalized in the United Kingdom and received a British passport, although he retained his Iraqi citizenship.

In early 1993, federal law enforcement agents searched Yakou's home and business in California and seized personal papers as well as business files, records, and equipment. Yakou believed that he had been mistreated by the United States, and he decided that he would no longer live in this country. He so informed his wife and children. Yakou resumed living in London, primarily residing there from that time until 1998, at which point he returned to Baghdad. He has lived and worked in Iraq ever since, establishing a new personal life there as well. By 1994, Yakou no longer owned any real property in the United States. He has not worked in the United States since 1993, and he last filed a federal income tax return in 1992.

The parties disagree, however, on the legal significance of the following circumstances. Although Yakou has not lived in the United States in over ten years, he never formally renounced his LPR status by filing Form I-407, "Abandonment of Lawful Permanent Resident Status," with United States immigration authorities. Neither has the Board of Immigration Appeals ("BIA") adjudged that his LPR status has changed. Since early 1993, Yakou has returned to the United States on less than ten occasions for no more than a few weeks at a time. These trips appear predominately, if not exclusively, to have involved visiting his family, and he stayed with family members while in the United States. Prior to January 2000, however, Yakou used his "green card," which indicates LPR status, to enter the country. At this point, he apparently lost the card, and, although he may have requested a new card, he was admitted on his British passport during his last three visits to the United States.

Yakou voluntarily returned to the United States in October 2003 only when a federal agent from Immigration and Customs Enforcement contacted him while he was on business in Thailand and suggested that he could assist his son, Regard, who had been arrested in Iraq on brokering charges and would be transported to the United States. Upon his arrival in the United States, Yakou was arrested pursuant to a previously sealed indictment. The single-count indictment alleges that Yakou and his son engaged in brokering activities involving defense articles and defense services with the government of Iraq without obtaining written approval from the State Department, in violation of the AECA, 22 U.S.C. § 2778(b)(2), (c), the ITAR, 22 C.F.R. §§ 129.2(a)-(b), -.3, -.5 to -.7, and 18 U.S.C. § 2. Specifically, the indictment alleges that in Iraq, from approximately November 2000 to July 2003, Yakou and his son negotiated and arranged for the sale, purchase, transfer, and construction of six armored patrol boats for the government of Iraq in return for a fee, commission, and other consideration. While the indictment does not allege that either Yakou or his son is a "U.S. person," it is undisputed that Yakou's son is a United States citizen.

In the district court, Yakou moved to dismiss the indictment under Rules 7 and 12 of the Federal Rules of Criminal Procedure. Observing that the indictment appeared to be "poorly drafted," Yakou understood it to allege violation of five regulations issued under the Brokering Amendment, and he argued that he could not have violated those regulations as a matter of law because after abandoning his LPR status in 1993 he was no longer a "U.S. person." He noted that it was undisputed that the conduct identified in the indictment took place outside the United States. Yakou also moved to strike the indictment's reference to 22 U.S.C. § 2778(b)(2) because the indictment did not allege an offense under that provision. In opposition to the motion, the United States did not contest Yakou's interpretation of the indictment but argued, as it does on appeal, that Yakou's LPR status could change only through an administrative procedure, either by filing Form I-407 or by formal adjudication of his status by the BIA. In addition, Yakou advanced a variety of reasons why the aiding and abetting charge was invalid, including that there was no...