United States District Court, D. Columbia.
For FOKKER SERVICES B.V., Defendant: Christopher R. Lane, David D. DiBari, LEAD ATTORNEYS, CLIFFORD CHANCE US, LLP, Washington, DC; Edward C. O'Callaghan, Rijie Ernie Gao, PRO HAC VICE, CLIFFORD CHANCE U.S. LLP, New York, NY.
For USA, Plaintiff: Maia Luckner Miller, Zia Mustafa Faruqui, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC.
MEMORANDUM OPINION [Dkt. #3]
RICHARD J. LEON, United States District Judge.
On June 5, 2014, the United States (" the Government" ) filed an Information charging Fokker Services B.V. (" Fokker Services" ) with one count of Conspiracy to Unlawfully Export U.S.-Origin Goods and Services to Iran, Sudan, and Burma. See Information (" Info." ) [Dkt. #1]; see 18 U.S.C. § 371 (conspiracy to commit offense against the United States); 50 U.S.C. § 1705 (International Emergency Economic Powers Act). The conspiracy, which spanned a five-year period of time from 2005 to 2010, included over 1100 separate illegal shipments of parts and components used in aircraft aviation and navigation systems and other aircraft systems that were subject to export control for national security and/or anti-terrorism reasons. Before the Court now is a Joint Consent Motion for Exclusion of Time Under the Speedy Trial Act (" STA Mot." ) [Dkt. #3]. Upon consideration of the parties' pleadings, argument, relevant law, and the entire record therein, the motion is DENIED.
Fokker Services is a Dutch aerospace services provider and subsidiary of Fokker Technologies Holding B.V., a Dutch manufacturing and technical services company. Info. ¶ 1. Fokker Services serves operators and owners of aircraft manufactured by Fokker Services' predecessor, Fokker Aircraft, B.V. Info, ¶ 3. It provides " logistical support, component maintenance, repair and overhaul, technical services, and aircraft maintenance and modification." Id. Fokker Services uses aircraft parts manufactured throughout the world, including in the United States. Id.
Fokker Services' United States activities are subject to United States laws and oversight by the Department of Treasury's Office of Foreign Assets Control (" OFAC" ), which administers and enforces economic and trade sanctions against certain foreign countries, as well as the Department of Commerce's Bureau of Industry and Security (" BIS" ). Info. ¶ 4.
Among those regulations with which Fokker Services' U.S. activities must comply are the economic sanctions the Government has established with respect to Iran, Iranian Transaction Regulations, 31 C.F.R. Part 560; Burma, Burmese Sanctions Regulations, 31 C.F.R. Part 537; and Sudan, Sudanese Sanctions Regulations, 31 C.F.R. Part 538.
The Iranian and Sudanese sanctions prohibit, among other things, the unlicensed exportation or re-exportation, directly or indirectly, of any goods, technology, or services from the United States or any U.S. person to Iran or Sudan. Id. § § 538.205, 560.204. The Iranian sanctions also prohibit the re-exportation from a third country to Iran of any goods, technology, or services that had been exported from the United States. Id. § 560.205. The Burmese sanctions prohibit new investment in Burma and the exportation or re-exportation of financial services to Burma from the United States or any U.S. person. Id. § 537.202, 537.204. The sanctions against all three countries further prohibit transactions by U.S. people or within the United States to evade or avoid the sanctions' prohibitions. Id. § § 537.206, 538.211, 560.203. Fokker Services historically has worked with eleven Iranian customers, including five Iranian military customers ( e.g., its Army, Navy, and Air Force), four Sudanese customers, and four Burmese customers. Info, ¶ ¶ 6-8.
The Information charges Fokker Services with violating U.S. export laws from 2005 until 2010 " by engaging in illegal transactions involving the export and re-export of aircraft parts, technology, and services to U.S.-sanctioned countries, specifically, Iran, Burma, and Sudan . . ., without first obtaining a license from OFAC." Info. ¶ 9. Specifically, Fokker Services is charged with " knowingly initiating, either directly or indirectly, 1,153 shipments of aircraft spare, repaired, or exchanged parts, or a combination thereof" with a U.S. nexus to customers the company knew to be located in sanctioned countries. Info. ¶ 10.
The Information charges a scheme of deliberate conduct to evade the sanctions and detection by U.S. companies and authorities. According to the Information, Fokker Services withheld or falsified tail numbers, or falsely indicated parts were to be used as " stock parts" when reporting to U.S. or U.K. companies so as to conceal its customers' affiliations with U.S.-sanctioned countries. Info. ¶ 21a. It tracked U.S. companies' attention to export controls and directed business to those companies that were not vigilant regarding compliance. Info. ¶ 21b. The company deleted references to Iran in materials sent to U.S. subsidiaries and repair shops, Info. ¶ 21c, and removed fields relating to ultimate end-user information from an internal parts-tracking database, Info. ¶ 21d. In addition, Fokker Services directed employees to hide activities and documents ...