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United States v. Burden

United States Court of Appeals, District of Columbia Circuit

August 20, 2019

United States of America, Appellee
Pheerayuth Burden, Appellant

          Argued January 16, 2019

          Appeals from the United States District Court for the District of Columbia (No. 1:14-cr-00069-2) (No. 1:14-cr-00069-3)

          Lindsay C. Harrison, pro bono, 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.



         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.


         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 (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 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.

         Burden 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.

         The 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.

         In 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, S.A. 75).

         At 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.

         The 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.

         The 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.

         Further 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 customs law.

         Evidence 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.

         The 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.

         Instead, the district court adopted the government's proposed instruction, which described the ...

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