DDTC

Is There Such a Thing as “Attempted” Arms Brokering?

Is there such a thing as “attempted” arms brokering under the Arms Export Control Act or do the mere acts of soliciting, negotiating, and other discussions regarding the export of defense articles on behalf of a third party constitute a completed offense of arms brokering? Does the Arms Export Control Act provide the State Department with authority to control “attempted” brokering? The defendant in the recent case of U.S.A. v. Man et al. [FN 1] raised these very issues, which apparently led the government to drop an illegal arms brokering count from its indictment.

Snapshot of the 1996 Brokering Amendment

Congress amended the Arms Export Control Act in 1996 to control the activities of “U.S. persons and foreign persons located in the U.S. involved in defense trade of U.S. and non-U.S. defense equipment or technology.” [FN 2] This amendment added four subsections to the Act that broadly define brokering activities, require registration of all arms brokers, and require prior approval of arms brokering activities, subject to very narrow exclusions and exemptions. [FN 3]

Subsection II of the amendment broadly defines brokering activities to “include the financing, transportation, freight forwarding, or taking of any other action that facilitates the manufacture, export, or import of a defense article or defense service.” [FN 4] This definition is implemented with the other subsections of the 1996 Brokering Amendment at Part 129 of the International Traffic in Arms Regulations (“ITAR”).

The State Department Broadly Applies Part 129

The State Department views the scope of Part 129 in the broadest sense. Among other things, it maintains that brokering activities can occur regardless of whether a prospective transaction is completed and regardless of whether a person actually receives a fee or other consideration.

The ITAR also prohibits the act of proposing to engage in brokering activities that involve any country, area or person who is ineligible or subject to arms embargo under ITAR Section 126.1 without first obtaining State Department approval. [FN 5]

The government regularly enforces Part 129 brokering restrictions, particularly against brokers in transactions that involve 126.1 arms embargoed countries. Many of these prosecutions are for proposed transactions where no defense articles were actually purchased or exported.

The Wenxia Man Case

On August 21, 2014, Wenxia Man, a naturalized U.S. citizen, was indicted in the U.S. District Court for the Southern District of Florida for the unlawful brokering of defense articles and conspiracy to export defense articles without State Department authorization in connection with alleged attempts by Man and an alleged co-conspirator to purchase an MQ-9 Reaper Unmanned Aerial Vehicle, F-135 engines, and other U.S.-origin defense articles for export to China. [FN 6]

No defense articles were bought, sold or exported by Man or by her alleged co-conspirator. Accordingly, Man moved to dismiss the arms brokering count under Federal Rule of Criminal Procedure 12(b)(3)(B)—arguing that she did not facilitate the manufacture, export or import of a defense article and that the AECA does not authorize a criminal charge for “attempt” to broker:

“Noticeably lacking from 22 U.S.C. § 2778 is any reference to an attempt to take any action “that facilitates the manufacture, export, or import of a defense article or defense service.” Cf. id. Indeed, the word “attempt” appears nowhere in 22 U.S.C. § 2778. This is particularly important because even if MAN arguably attempted to act as a broker, none of MAN’s actions ultimately facilitated the manufacture, export or import of a defense article.” [FN 7]

Man’s motion further argued that there is no authority whatsoever for convicting a defendant under the Arms Export Control Act for brokering activities that did not ultimately result in the “manufacture, export, or import of a defense article or defense service.” [FN 8]

In its response to Man’s motion, the government argued that proof of intent to facilitate sales of defense articles was sufficient to support the brokering count:

“Because the requirement is that the defendant must first register with the Department of State before undertaking any brokering activity, and further, that no brokering activities or brokering proposals involving any country referred to in Section 126.1, which includes China, may be carried out by any person without first obtaining the written approval of the Directorate of Defense Trade Controls, the offense is complete upon the undertaking of any brokering activity which is intended to facilitate the export or transfer of a defense article.” [FN 9]

The government’s response further argued:

“It is not an element of a violation of engaging in the business of brokering activity in violation of Title 22, United States Code, Section 2778, that the defendant be successful in her brokering activities, or that she actually receive a commission. It is enough that she engaged in prohibited brokering activities without first being registered with the Department of State, Directorate of Defense Trade Controls with the intent to obtain a commission for her efforts in facilitating the sale, transfer and export of a defense article.” [FN 10]

The court heard oral argument on the motion and denied it. There is no written order explaining the court’s reason for its denial. However, denial of Man’s Motion to Dismiss is not surprising because, in criminal proceedings, courts rarely grant motions to dismiss—no matter how weak in evidence or legally deficient the government’s case.

But what is so interesting about the Man case is that, following the court’s denial of Man’s Motion to Dismiss, the government filed a Superseding Indictment in which it dropped the brokering count.

Had the government not dropped the brokering count, it would have invariably faced a Rule 29 Motion for Judgment of Acquittal at trial. Rule 29 Motions are much more difficult for the government to overcome than Rule 12 motions to dismiss.

More specifically, to overcome a Rule 29 Motion for Judgment of Acquittal on the brokering count, the government would have been required to present evidence sufficient to prove each element of the brokering count beyond a reasonable doubt—to include presenting evidence that Man took an action that facilitated the manufacture, export, or import of a defense article. By dropping the brokering count, the government sidestepped this factual issue. It also avoided the court ruling on whether there is such a thing as attempted brokering under the Arms Export Control Act.

Man was eventually convicted at trial on the Conspiracy count—a criminal charge that requires proof of an agreement to commit an unlawful act and proof of at least one overt act to carry out the conspiracy—but does not require proof of an act that facilitated the manufacture, export, or import of a defense article or defense service. The court sentenced Man to 50 months imprisonment plus two years of supervised release. Man has since appealed the conviction, which is now pending before the United States Court of Appeals for the Eleventh Circuit (Case No. 16-15635).

Conclusion

The argument against any Arms Export Control Act authority to control attempts to broker defense articles interprets the Act’s use of the term “action that facilitates” as meaning to take an action that actually causes such end results and takes the position that the Act does not control mere attempts to bring about such results. In contrast, the government interprets the term “action that facilitates” as meaning that a person took an action intended to cause such end results and takes the position that the Act controls such actions—regardless of if the intended results occur.

The Congressional record for the 1996 Brokering Amendment is scant and does not address the meaning of the term “action that facilitates”. [FN 11] Nor does it specifically discuss “attempts” to broker. Accordingly, the government’s apparent concern over the court’s review of the brokering count against Man was justified.

The best legal solution to resolve the issue is for Congress to clarify the scope of the arms brokering prohibitions through amendment of the Arms Export Control Act. In the meantime, the Justice Department will continue enforcing the State Department’s interpretations. We can therefore expect to see other defendants ask courts to decide whether there is such a thing as “attempted” arms brokering. Decisions in these defendants’ favor can significantly narrow the scope of Part 129.

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[1] United States of America v. Wenxia Man a/k/a Wency Man, Case 0:14-cr-60195-BB (S.D. Fla., June 2016).

[2] Section 151 of Public Law 104–164 (1996).

[3] See 22 U.S.C. 22 U.S.C. § Section 2778(A)(ii).

[4] 22 U.S.C. § Section 2778(A)(ii)(II) (emphasis added).

[5] 22 C.F.R. §§ 126.1(e)(1) and 129.7(b).

[6] Indictment, Case 0:14-cr-60195-BB, ECF No. 1 (06/21/2014).

[7] Defendant’s Motion to Dismiss Count One (1) of the Indictment and Incorporated Memorandum of Law, Case 0:14-cr-60195-BB, ECF No. 61 (03/23/2016).

[8] Ibid.

[9] Government’s Response to Defendants Motion to Dismiss Count One of the Indictment, Case 0:14-cr-60195-BB, ECF No. 66 (03/25/2016).

[10] Ibid.

[11] See H.R. 3121 accompanying the brokering amendment at Section 151 under See H.R. Rep. No. 104-519, pp. 11-12 (1996).

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*The above is not intended as an exhaustive list of restrictions that may apply to a particular transaction nor advice for a specific transaction because the specifics of an individual case may implicate application of other U.S. laws as well as foreign laws that carry added or different requirements. In addition, U.S. export control and sanctions laws are frequently subject to change. Such changes can affect the continued validity of the information above, which is based on U.S. law existing as of August 21, 2017. For these reasons, assistance from a qualified attorney competent to advise on such matters is highly recommended. Matthew A. Goldstein is an International Trade Attorney in Washington D.C. licensed to practice in the District of Columbia. He can be reached at (202) 550-0040 and Matthew@GoldsteinPLLC.com