The U.S. State Department “Eats Their Own Young:” The Basics of Mens Rea, Specific Intent, and Acting “Knowingly”
American criminal legal theory is based upon elements of Greek and British legal theories developed over hundreds of years. Some of the basic philosophies of Greek legal theory included economic, philosophical, and sociological ideals about justice, and what it meant to be “guilty” of a crime. Through case law and practice, certain precedents were set as basic building blocks for an effective system of law. Exported to the Colonies in the 1700s, early American legal theory followed the historical British legal theories developed over hundreds of years.
In order to be guilty of a crime, the accused must be guilty of two elements: Actus reus and Mens reus. Actus reas, or the “guilty act” is the act performed by the accused that has been deemed by society to be a crime. In contrast, Mens reus is Greek for the “guilty mind,” and translates to the intent of the accused. Where there is no criminal intent, the accused cannot be guilty of a crime. Examples where mens reus may not be present include cases of mistake, lack of mental capacity, or lack of knowledge that the act was illegal.
There are exceptions to the Actus reus and Mens reus requirements in criminal law, most notably in crimes that society has deemed to be so clearly obvious that no mental intent or knowledge is required. In cases of “strict” liability, the accused can be found guilty by virtue of a wrongful act alone, without any knowledge that the act is illegal. Said another way, under strict liability, a defendant will be convicted even though the defendant was genuinely ignorant of one or more factors that made the act criminal. The export of defense articles from the United States is generally governed under a strict liability standard, although court cases are at odds as to the actual meaning and requirement of the law.
Enter Brian Bishop, a financial management Foreign Service Officer at the U.S. Embassy in Amman, Jordan. Pursuant to a U.S. State Department policy of shipping employee’s personal effects overseas at government expense, Mr. Bishop sought to ship his personal effects from Alabama to Jordan. Included within the shipment were nearly 10,000 rounds of 9mm, .45 ACP, 12 gauge, and 7.62×39 caliber ammunition, weighing upwards of 366 pounds. Mr. Bishop listed the ammunition as “weights,” and did not tell the government shipping agent that he was shipping ammunition.
The moving company moved Mr. Bishop’s belongings to a warehouse in Virginia for consolidation. Once there, the movers determined that several parcels needed to be repacked. During the repacking process, the ammunition was discovered, and law enforcement notified.
In September 2012, a federal grand jury returned a two-count indictment against Bishop relating to his attempted transportation of the ammunition. Count I of the indictment charged Bishop with a violation of the Arms Export Control Act (AECA). Specifically, the indictment alleged that Bishop “knowingly and willfully attempt[ed] to export from the United States to Jordan, without having first obtained from the Department of State a license for such export, or written authorization for such export, defense articles, to-wit: approximately 7,496 rounds of 9mm and 7.62x39mm ammunition, which are designated as defense articles on the United States Munitions List, Category III.” At the conclusion of the one-day trial, the district court convicted Bishop of violating the AECA by trying to export ammunition without a license.
On appeal, Mr. Bishop argued that he did not have specific intent to violate that law. Instead, for his conduct to have been willful, he needed to know that exporting the ammunition was unlawful, and that the ammunition was specifically covered by the AECA. The court disagreed and upheld the conviction. In making its ruling, the court noted that that “[t]he AECA does not include such highly technical requirements as might inadvertently criminalize good-faith attempts at compliance. [W]illfulness under the AECA requires only general knowledge of illegality.” Specific knowledge that ammunition was listed on the U.S. Munitions list and subject to export controls was not necessary to uphold the conviction. A full reading of U.S. v. Bishop can be found online at http://caselaw.findlaw.com/us-4th-circuit/1655907.html.
In light of the Bishop case, there’s another case worth mentioning – U.S. v. Pulungan, 569 F.3d 326 (2009). In Pulungan, the defendant attempted to export 100 Leupold Mark 4 CQ/T riflescopes. He was charged with violating the Arms Export Control Act (AECA), which makes it a crime to “willfully” violate export a defense article without an export license.
During the trial, the prosecution had to establish that the riflescopes were manufactured to “military specifications” as required by the USML. To prove this fact, the prosecution offered testimony from a Division Chief at DDTC who, without providing any details or explanation, merely testified that the riflescopes at issue were in fact manufactured to military specifications. The prosecution argued that the testimony from DDTC’s Division Chief makes the riflescope a munitions item as a matter of law under AECA § 2778(h). The trial court agreed and Pulungan was ultimately convicted.
On appeal, Pulungan argued that he did not act willfully, and did not know an export license was required. The Seventh Circuit agreed and reversed the conviction, saying “the evidence is insufficient to show, beyond a reasonable doubt, that Pulungan knew that these `scopes were “defense articles” that required export licenses. It is not enough for the Leupold Mark 4 CQ/T riflescope to be a “defense article.” Pulungan cannot be convicted unless he knew that it is one, and that licenses are necessary to export them. The United States concedes that the word “willfully” in § 2778(c) requires it to prove that the defendant knew not only the material facts but also the legal rules.”
Pulungan’s conviction of an AECA violation probably should have been upheld. Pulungan’s attempt to export ITAR controlled optics required an export license; he did not apply for one, and thus was in violation of the AECA. Under a strict liability standard, it doesn’t matter whether Pulungan knew that the export of the Leupold Mark 4 CQ/T riflescope was a defense article and required an export license. Under a strict liability standard, the only issue is whether Pulungan violated the AECA. Attempting an export without an export license is a violation, regardless of knowledge or willfulness.
Unfortunately, the Bishop court did not cite U.S. v. Pulungan, nor distinguish its opinion from the result achieved by Pulungan court. The term “willful” has been a highly contested element in AECA enforcement, resulting in very different outcomes in a number of cases. In addition, the Bishop case was decided by the 4th Circuit, while the Pulungan case was decided in the 7th Circuit. As independent arms of the Federal Court system, neither circuit has the ability to set precedence over the other. Until a single interpretation is issued for all courts to follow, expect to see more uncertainty in AECA enforcement cases.
The guidance provided within this article was correct and current at the time it was written. Policies and regulations change frequently. The preceding article is not intended as legal advice, and should not be taken as legal advice. If the reader has specific legal questions, seek competent legal counsel.
Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also maintains Hurricane Butterfly, an import/export company that assists U.S. firearm manufacturers and foreign buyers wade through the regulatory morass of U.S. import/export regulations. He may be contacted via email at jmwong@FirearmsLawGroup.com.