United States Court of Appeals, District of Columbia Circuit
January 16, 2019
Appeals from the United States District Court for the
District of Columbia (No. 1:14-cr-00069-2) (No.
Lindsay C. Harrison, pro bono, argued the cause and filed the
briefs for appellant. James Dawson entered an appearance.
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.
PILLARD, CIRCUIT JUDGE
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
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.
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.
the error we identify was not harmless, we vacate the
judgments and remand for proceedings consistent with this
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.
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
Factual and Procedural Background
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.
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
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 (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
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 Yindeear-Rom and falsified customs declarations.
App. 266-71. The agents did not arrest Burden at the end of
the interview. S.A. 420-21. The court's eventual
admission of Burden's statement at his trial over defense
objections is the subject of his Miranda claim on
appeal. App. 429-33.
was arrested six months later, in May 2014. Trial was
initially scheduled for November 2015, but was continued
twice, first to April 2016 and then to September 2016. The
district court granted the second continuance because many
documents remained to be translated into English. The court
noted that the defense "can't actually do this
without translated documents" and that "it's
not that [the defense has] been less than diligent about
it." App. 381. That continuance introduced a wrinkle
into the trial, however: Yindeear-Rom was scheduled to be
released from prison in June 2016, three months before the
new trial date, and was to be deported after his release. The
government had a clear path to remove Yindeear-Rom upon his
release because he had stipulated when he pleaded guilty to
an order of removal that would "render him permanently
inadmissible to the United States," which assured that
the government, "promptly upon his release from
confinement . . . may execute the order of removal according
to the applicable laws and regulations." App. 47
(alteration in original). The government in February 2016
moved to take Yindeear-Rom's deposition under Federal
Rule of Criminal Procedure 15, which governs depositions
taken to preserve a potential witness's testimony for
trial. S.A. 1; Fed. R. Crim. P. 15(a)(1). The district court
granted the motion over the defendants' objections. The
defense objected to the deposition for some of the same
reasons it asked for the second trial postponement: the
government had not produced sufficient discovery to allow
them to prepare for Yindeear-Rom's testimony. The court
nonetheless allowed the deposition to be taken to preserve
evidence in the event that Yindeear-Rom would be unavailable
to testify. Yindeear-Rom's videotaped, in-court
deposition took place over four days in March and April. The
court granted the government's motion to reduce
Yindeear-Rom's sentence in exchange for his testimony.
United States deported Yindeear-Rom to Thailand in April
2016. Even though the government had substantial bargaining
leverage before it moved for his sentence reduction, there is
no record that it made any efforts before deporting him to
secure Yindeear-Rom's presence at trial. It was only once
Yindeear-Rom was back in Thailand that the government began
to make such efforts.
seeking to bring Yindeear-Rom back a few months later, the
government contacted Yindeear-Rom's counsel by phone and
mail. United States v. Burden, No. 14-cr-0069 (RMC),
2016 WL 5108010, at *3 (D.D.C. Sept. 20, 2016). Its letter to
counsel included a subpoena for Yindeear-Rom's testimony
at trial and a promise to help him obtain a visa and to pay
his travel expenses, "including but not limited to
round-trip airfare, transportation, room, board, and per diem
witness fee." Id. (quoting letter, S.A. 51).
Yindeear-Rom's lawyer "forwarded the letter and
subpoena to Mr. Yindeear-Rom in Thailand, but was unable to
confirm receipt or make any representations about [his]
willingness to testify." Id. at *3. The
government also sent the letter and subpoena directly to
Yindeear-Rom's last known email and physical address in
Thailand. Id. at *4. The government received no
response to either, but confirmed that the letter was signed
for by "K. Yen," which it believed to be
Yindeear-Rom. Id. DHS personnel in Thailand
eventually reached Yindeear-Rom by phone and learned that he
had received the email and letter, but that he "had no
desire to travel to the United States to cooperate in any
way." Id. (quoting DHS Report of Investigation,
trial, the court granted the government's motion to admit
the Rule 15 deposition over the defendants' objections.
Defendants argued that the government should have sought to
keep Yindeear-Rom in the country between his release from
prison and the trial. The court concluded that the witness
was unavailable, and that "the use of a videotaped
deposition taken in court, before the trial judge and
including the presence of Mr. Burden and cross examination by
both defense lawyers," was "a very good
substitute" for Yindeear-Rom's live trial testimony
"that would allow the jury to observe his demeanor and
preserve the Defendants' rights to confront witnesses
against them." Id. at *3, *8.
government's trial evidence included Burden's
statement to DHS agents at the Wing-On warehouse that he
mislabeled customs declarations for shipments containing gun
parts, and packed gun parts hidden among other items for
shipping. App. 269-72. In his defense, Burden highlighted his
statements that he took those steps to evade Thai customs. He
told the agents that he concealed gun parts among other items
because "[y]ou want to hide from the custom in
Thailand," App. 271, and that he falsified customs
documents "[b]ecause of tax in Thailand," App. 281.
government, for its part, pointed to circumstantial evidence
tending to show that Burden had reason to know that he was
violating U.S. arms-export law. For instance, Burden
acknowledged in his statement to DHS agents that people
"[n]eed a license" to ship certain things, like gun
parts. App. 203-04. Yindeear-Rom received a notice that a
seized shipment of gun parts violated the ITAR, see
S.A. 212-13, and even though he had ordered that shipment
through a different shipper (not Wing-On), Yindeear-Rom
forwarded the notice to Burden asking what he should do,
see S.A. 282-83. Yindeear-Rom then testified that
the notice he forwarded informed both of them of the
requirements of the ITAR. S.A. 369. Burden had also received
a notice directly from U.S. Customs and Border Protection
that it had seized a rifle scope (controlled under a distinct
set of regulations analogous to the ITAR but covering
different items) because the scope could not be exported
without a license. See App. 171.
evidence, however, suggested that Burden either did not
realize he was shipping real gun parts, or thought it was
legal under U.S. export law to ship those parts if they were
to be used with toy guns. As part of their business, the
defendants shipped BB guns (air guns that shoot small metal
balls) and Airsoft toys (which are similar to BB guns and
shoot plastic pellets). See App. 311-12, 574.
Airsoft and BB guns themselves may lawfully be exported
without a State Department license. The defense's expert
witness on firearms and Airsoft identification testified that
an Airsoft toy "looks like a gun in every way, shape or
form from the outside, same length, weight, contour, field
markings, but it won't kill anybody." S.A. 672-73.
They have all the same parts as the real guns they mimic; in
fact, real gun parts can be used with Airsoft toys. App.
508-10; S.A. 676, 678. In his statement to DHS agents, Burden
said that his Thai customers were not using gun parts
"for the gun," but "for the BB gun . . . for
the paintball [gun]." App. 259. A Wing-On manager
testified that employees were instructed not to ship parts
for real guns but that they could ship parts to "be used
for toys for Airsoft items." App. 554-56, 574. Burden
affirmed to one of his customers that if a part was for a BB
gun "then there's no problem" shipping it. App.
361. That evidence tended to support Burden's defense
that he concealed the contents of shipments to evade Thai
also showed that Burden tried not to ship real gun parts
after realizing it was illegal. Burden sent an email to
Yindeear-Rom saying, "I have warned you many times that
I do not accept gun parts. . . . Stop sending them to me
absolutely!" App. 358. The Wing-On warehouse had a
"no-go" shelf for gun parts, where employees would
segregate items that they could not lawfully ship.
See App. 350, 554-55. There was ambiguous evidence
suggesting that Wing-On may have ultimately shipped some gun
parts on the no-go shelf.
conflicting evidence regarding Burden's intent occasioned
a dispute over the jury instruction defining
"willfully" under the AECA. The defendants proposed
using the Fifth Circuit pattern jury instruction, which
requires the jury to find that a defendant exported articles
on the Munitions List without obtaining a license from the
Department of State; and "[t]hat the defendant acted
'willfully,' that is, that the defendant knew such
license . . . was required for the export of these articles
and intended to violate the law by exporting them without
such license." App. 99.
the district court adopted the government's proposed
instruction, which described the ...