United States District Court, District of Columbia
OPINION ON JOINT MOTION FOR A JUDGMENT OF
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
Pheerayuth Burden and Wing-On LLC moved at the close of the
government's case in their criminal trial and at the
close of all evidence for judgment of acquittal. The Court
heard arguments and denied both motions in open court. This
Opinion explains those rulings.
Superseding Indictment filed on July 16, 2015, Pheerayuth
Burden and Wing-On LLC were charged with conspiracy to
violate the Arms Export Control Act by exporting and
attempting to export defense articles on the United States
Munitions List without a license. The same count also charged
both Defendants with conspiracy to defraud the United States
by impeding its lawful function in administering its export
laws by attempting to export defense articles on the
Munitions List from the United States by deceit, craft,
trickery, and dishonest means. See Superseding
Indictment (Indictment) [Dkt. 48] ¶ 10 (Count 1).
Further, both Defendants were charged in Count Two with
knowingly and willfully exporting, attempting to export and
causing to be exported on July 31, 2011, five (5) AR Style,
NATO 5.56, 30-round magazines and one KAC-Knight Armament
M203 Qd Mount, by which one could mount a grenade launcher
onto an AR-15 rifle. See Id. ¶ 16. Count Three
charged both Defendants with conspiracy to commit money
laundering. See Id. ¶ 18. The Indictment also
contained a forfeiture allegation demanding that Defendants
forfeit to the United States any property, real or personal,
which constitutes, or is derived from, proceeds traceable to
a violation of the AECA. See Id. at 10-11.
Burden is a native of Thailand lawfully in the United States
and conducting an export business specializing in the
transportation of U.S. goods to Thailand from California. He
was originally charged with co-Defendant Kitibordee
Yindeear-Rom, a Thai native living in Thailand with whom Mr.
Burden allegedly conspired to export gun parts on the
Munitions List without a license from the U.S. Department of
State (USDS). Mr. Yindeear-Rom entered a guilty plea in
November 2014, served close to three years in prison in the
United States, and was subsequently deported to Thailand.
Defendant Wing-On LLC was incorporated in California and
operates from that State. It is wholly-owned by Mr. Burden.
matter was tried between September 12 and September 29, 2016.
Each Defendant was represented by counsel. On September 26,
2016, at the close of the government's case-in-chief,
Defendants presented a brief and exhibits in support of their
Joint Motion for a Judgment of Acquittal. See Jt.
Mot. [Dkt. 120]. Oral motions for acquittal were argued in
court and denied. At the close of the evidence (including
Defendants' witnesses and rebuttal by the government),
Defendants moved again for a judgment of acquittal. After
argument, the motion was again denied and the Court indicated
a written opinion would follow.
that written opinion.
the government closes its evidence, " and upon a
defendant's motion, Rule 29 of the Federal Rules of
Criminal Procedure provides that a court "must enter a
judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction." United
States v. Naegele, 537 F.Supp.2d 36, 37-38 (D.D.C. 2008)
(quoting Fed. R. Crim. P. 29(a)). In ruling on such a motion
the court "considers] the evidence in the light most
favorable to the government and determines] whether, so read,
it is sufficient to permit a rational trier of fact to find
all of the essential elements of the crime beyond a
reasonable doubt." United States v. Kayode, 254
F.3d 204, 212-13 (D.C. Cir. 2001). "The question is
whether the evidence is sufficient for a rational juror to
[find] the defendant guilty." Naegele, 537
F.Supp.2d at 38 (citing United States v. Harrington,
108 F.3d 1460, 1464 (D.C. Cir. 1997)); see also Jackson
v. Virginia, 443 U.S. 307, 319 (1979); United States
v. Lucas, 67 F.3d 956 (D.C. Cir. 1995).
Arms Export Control Act (AECA), 22 U.S.C. § 2778,
authorizes the President "to control the import and the
export of defense articles and defense services and to
provide foreign policy guidance to persons of the United
States involved in the export and import of such articles and
services." 22 U.S.C. § 2778(a)(1). In order to
control the import and export of defense articles and
services, the President "is authorized to designate
those items which shall be considered as defense articles and
defense services for the purposes of this section and to
promulgate regulations for the import and export of such
articles and services. The items so designated shall
constitute the United States Munitions List."
Id. In order to import or export an item designated
on the United States Munitions List, an individual or
corporation must obtain a license. See 22 U.S.C.
United States Munitions List is codified in the International
Traffic in Arms Regulations (ITAR), 22 C.F.R. §§
120-130. "The President has delegated to the Secretary
of State the authority to control the export and temporary
import of defense articles and services. The items designated
by the Secretary of State for purposes of export and
temporary import control constitute the U.S. Munitions List
specified in part 121 of this subchapter." 22 C.F.R.
argued that they should have been acquitted on Counts I and
II of the Indictment because the government failed to prove
beyond a reasonable doubt that the products at issue were
defense articles. Specifically, both Counts I (conspiracy)
and II (willful violation of the AECA) required proof beyond
a reasonable doubt that either the five AR Style, NATO 5.56,
30-round magazines, or the KAC-Knight Armament M203 Qd Mount
is a defense article. Defendants also argued for acquittal on
Count II because (1) there was insufficient proof that Mr.
Burden or Wing-On knowingly exported the magazines or mount
to Thailand and (2) the Government did not prove that the
magazines or mount were "components" as defined in
the ITAR. With those two Counts dismissed, Defendants argued
that the money laundering charge in Count Three must also be
Did the Government Prove that the Gun Parts Are Defense
challenge the testimony, or lack thereof, by the
government's expert witness from the USDS Directorate of
Defense Trade Controls, Robert Warren. According to
Defendants, the Government failed to present sufficient
evidence to establish that the gun parts at issue were
defense articles because its witness, Mr. Warren, failed to
testify that the gun parts in question were
"specifically designed, modified, or adapted for
military application, " or to seek a commodity
jurisdiction determination as to whether either the
magazines, designed to hold 30 rounds, or the KAC-Knight
Armament M203 Qd Mount, designed to attach a grenade launcher
to a rifle, were defense articles.
note that prior to October 14, 2013 (the time relevant
herein), an article or ...