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United States v. Burden

United States District Court, District of Columbia

November 8, 2016

UNITED STATES OF AMERICA,
v.
PHEERAYUTH BURDEN, WING-ON LLC, Defendants.

          OPINION ON JOINT MOTION FOR A JUDGMENT OF ACQUITTAL

          ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE

         Defendants 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.

         I. BACKGROUND

         By 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.

         Mr. 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.

         This 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.

         This is that written opinion.[1]

         II. APPLICABLE LAW

         "After 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).

         The 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. § 2778(b)(2).

         The 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. § 120.2.

         Defendants 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 dismissed.

         III. ANALYSIS

         A. Did the Government Prove that the Gun Parts Are Defense Articles?

         Defendants 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.

         Defendants note that prior to October 14, 2013 (the time relevant herein), an article or ...


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