UNITED STATES V. BISHOP, NO. 13-4356
Decided: January 28, 2014
The Fourth Circuit Court of Appeals affirmed the defendant’s conviction for attempting to export small-arms ammunition to Jordan without a license. The Fourth Circuit held that there was sufficient evidence to support the district court’s conclusion that the defendant willfully violated the Arms Export Control Act (“ACEA), which regulates the export of “defense articles” such as ammunition, and subjects to criminal liability anyone who “willfully” violates its requirements.
In 2011, Brian Keith Bishop (“Bishop”) worked as a financial-management Foreign Service Officer (“FSO”) at the U.S. embassy in Amman, Jordan. In the summer of 2011, Bishop sought to ship certain personal possessions from his parents’ home in Alabama to Jordan via a government contract carrier, Paxton Van Lines (“Paxton”). The shipment included nearly 10,000 rounds of small-arms ammunition: 9mm, 7.62X39mm (for use in AK-47 assault rifles), .45-caliber rounds, and 12-gauge shotgun shells. The inventory of shipped items signed by Bishop, however, did not reference the 366 pounds of ammunition included in his household effects, instead listing them as weights. Bishop also signed a statement certifying that his belongings did not include “any unauthorized explosives, destructive devices or hazardous materials.” Paxton employees discovered the ammunition during the repacking process, and removed it from the boxes labeled “weights.” One of the boxes did in fact contain a single small weight. In September 2012, a federal grand jury returned a two-count indictment against Bishop relating to his attempted transportation of the ammunition.
On appeal, Bishop raised two challenges to his conviction: (1) that he did not willfully violate the ACEA because he did not know that it applied to the ammunition, and (2) that there was insufficient evidence that he even knew that exporting the ammunition was generally illegal rather than merely a violation of administrative policy.
Regarding (1), the Fourth Circuit looked to the Supreme Court case Bryan v. United States to determine whether a conviction under the AECA requires specific intent. The Bryan Court interpreted the Firearm Owners’ Protection Act (FOPA), which established a willfulness requirement for certain violations of prohibitions against dealing in firearms without a license. Bryan held that, to establish a willful violation of a statute, the Government only has to prove that the defendant acted with knowledge that his conduct was unlawful, and does not have to prove that he knew of the federal licensing requirement. The Fourth Circuit also noted that, as with FOPA, the ACEA’s language and structure make clear that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes. But, the AECA does not include any highly technical requirements as might inadvertently criminalize good-faith attempts at reliance. The export of 9mm and AK-47 ammunition to Jordan would quickly strike someone of ordinary intelligence as potentially unlawful. Further, ACEA’s legislative history makes clear that Congress was especially concerned that arms exports not become an “automatic, unregulated process.” Therefore, the Fourth Circuit concluded that reading the willfulness requirement as narrowing as Bishop proposes would be a step toward such an unregulated system and undermine congressional intent. The Fourth Circuit further concluded that he did not need to know that 9mm and 7.6X39mm ammunition were, in fact, on the United States Munitions List (USML) and, therefore, subject to ACEA. If Bishop believed that the “ammunition could not be shipped,” and “he knew what he was doing was unlawful,” he would necessarily have believed that exporting each type of ammunition – 9mm and 7.62X39mm included— was illegal as well.
Then, the Fourth Circuit addressed (2), whether there was sufficient evidence to conclude that Bishop knew his actions were illegal rather than merely violations of State Department policy. First, Bishop was thoroughly trained in the rules and regulations surrounding the State Department’s transportation policies. He was required to attend training that warned against transporting ammunition and was provided with numerous documents that not only informed him that transporting ammunition was prohibited but also referenced the ACEA and explained that violations could be punished by imprisonment. Bishop also received an email from Paxton reiterating that he could not transport ammunition, and was told explicitly by a DSS agent prior to his trip to Alabama that he could not keep firearms in Jordan. In addition, Bishop’s own witness characterized him as skilled at following complex legal rules and performing sophisticated independent legal research. Moreover, Bishop engaged in numerous acts of deception. He told Paxton packers that the boxes generally contained weights and failed to include ammunition on inventory lists that he signed. When the ammunition was discovered, Bishop’s first instinct was to ask if the State Department knew how much ammunition he had tried to ship, and he changed his story about why he attempted to ship the ammunition.
– Sarah Bishop