The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed May 9, 2005
No. 04-3037
United States of America,
Appellant
v.
Sabri Yakou,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00449-01)
BEFORE: Henderson* and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge
ORDER
Upon consideration of the appellant’s motion to clarify the
opinion, the opposition thereto, and the reply, it is
ORDERED that the motion be granted in part and denied
in part. It is
FURTHER ORDERED that the opinion in United States
v. Yakou, 393 F.3d 231 (D.C. Cir. 2005), be amended as follows:
Page 234, second paragraph, lines 22-23, delete “Because”
and capitalize the letter “i” in the word “it”
Page 234, second paragraph, line 24, delete “and”
Page 234, second paragraph, line 27, after the comma insert
“and that the United States does not argue that he is otherwise
subject to the jurisdiction of the United States for the purposes
of ITAR. Therefore,”
Page 243, first full paragraph, line 28, after “States” insert
“or otherwise subject to the jurisdiction of the United States”
Page 243, first full paragraph, lines 34-35, delete
“Brokering Amendment and the ITAR. See id.” and insert in
lieu thereof “ITAR unless “otherwise subject to the jurisdiction
of the United States.” Id. As noted, the United States does not
argue that Yakou is “otherwise subject to the jurisdiction of the
United States.” ”
Page 243, second paragraph, line 10, after “States” insert
“or otherwise subject to the jurisdiction of the United States”
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
*Circuit Judge Henderson continues to concur in the judgment.
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 2004 Decided January 4, 2005
Revised May 9, 2005
No. 04-3037
United States of America,
Appellant
v.
Sabri Yakou,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00449-01)
Lisa H. Schertler, Assistant U.S. Attorney, argued the cause
for appellant. With her on the briefs were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher, Wendy L. Wysong, and Laura
A. Ingersoll, Assistant U.S. Attorneys. Roy W. McLeese III,
Assistant U.S. Attorney, entered an appearance.
2
Matthew M. Hoffman argued the cause for appellee. With
him on the brief was John Moustakas.
Before: HENDERSON and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.
ROGERS, Circuit Judge: The United States appeals the
dismissal of the indictment alleging that Sabri Yakou engaged in
brokering activities in violation of the Arms Export Control Act
(“AECA”), 22 U.S.C. § 2778(b)(2), (c) (2000), and its
implementing regulations, the International Traffic in Arms
Regulations (“ITAR”), 22 C.F.R. §§ 129.2(a)-(b), -.3, -.5 to -.7
(2004). The United States contends that the district court made
three errors of law by: dismissing the indictment before trial,
when the Federal Rules of Criminal Procedure do not provide a
mechanism for summary judgment; ruling that lawful permanent
resident (“LPR”) status can change without formal
administrative action by immigration officials, such that Yakou
was not a “U.S. person,” as defined by the ITAR, who is subject
to prosecution for brokering activities; and ruling that Yakou
could not be indicted separately under 18 U.S.C. § 2 as an aider
and abettor of his son’s alleged brokering violations. This court
has jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm the
dismissal of the indictment.
I.
A.
The AECA authorizes the President to establish the “United
States Munitions List,” 22 U.S.C. § 2778(a)(1), which includes
“defense articles” and “defense services” whose import and
3
export is subject to registration and licensing requirements, id. §
2778(b). It authorizes the President “to promulgate regulations
for the import and export of [defense] articles and services.” Id.
§ 2778(a)(1). The registration and licensing requirements
originally extended only to those individuals “engage[d] in the
business of manufacturing, exporting, or importing” the articles
and services on the Munitions List. Id. § 2778(b)(1)(A)(i); see
also id. § 2778(b)(2). In 1996, however, Congress enacted the
Brokering Amendment, which expanded the scope of the
AECA’s registration and licensing requirements to cover “every
person . . . who engages in the business of brokering activities
with respect to the manufacture, export, import, or transfer of”
the articles and services on the Munitions List. Id. §
2778(b)(1)(A)(ii)(I). The Brokering Amendment defines
“brokering activities” as “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.” Id. § 2778(b)(1)(A)(ii)(II). Willful violation of the
Brokering Amendment and its implementing regulations is
subject to criminal prosecution with imprisonment upon
conviction for up to ten years and a fine of not more than one
million dollars. Id. § 2778(c).
The ITAR, promulgated by the State Department pursuant
to Executive Order 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977),
defines the class of persons subject to the licensing and
registration requirements of the Brokering Amendment as “[a]ny
U.S. person, wherever located, and any foreign person located in
the United States or otherwise subject to the jurisdiction of the
United States.” 22 C.F.R. § 129.3(a).1 In so construing the
1
Section 129.3(a) provides:
Any U.S. person, wherever located, and any foreign person
located in the United States or otherwise subject to the jurisdiction of
4
Brokering Amendment’s reference to “every person,” 22 U.S.C.
§ 2778(b)(1)(A)(ii)(I), the ITAR reflects the legislative history
revealing that in enacting the Brokering Amendment Congress
was focusing on “U.S. persons” and “foreign persons located in
the [United States],” and was concerned particularly with “U.S.
persons [who] are involved in arms deals that are inconsistent
with U.S. policy.” H.R. REP . NO. 104-519(I), at 11, 12 (1996)
[hereinafter HOUSE REPORT ]. It is undisputed that Yakou is not
a United States citizen, that the indictment does not allege that
Yakou engaged in brokering activities within the United States,
and that the United States does not argue that he is otherwise
subject to the jurisdiction of the United States for purposes of the
ITAR. Therefore, the United States must show that Yakou is a
“U.S. person.” The ITAR defines a “U.S. person” as one “who
is [a] lawful permanent resident as defined by 8 U.S.C.
1101(a)(20) [the Immigration and Nationality Act (“INA”)].” 22
C.F.R. § 120.15. The cross-referenced provision of the INA, in
turn, defines the term “lawfully admitted for permanent
residence” as “the status of having been lawfully accorded the
privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws, such status
not having changed.” 8 U.S.C.A. § 1101(a)(20) (2004).
B.
The material facts were undisputed in the district court.
Sabri Yakou was born in 1934 in Iraq, and he predominately
the United States (notwithstanding § 120.1(c)), who engages in the
business of brokering activities (as defined in this part) with respect to
the manufacture, export, import, or transfer of any defense article or
defense service subject to the controls of this subchapter (see § 121)
or any “foreign defense article or defense service” (as defined in
§ 129.2) is required to register with the Office of Defense Trade
Controls.
22 C.F.R. § 129.3(a).
5
lived there until the mid-1970s when he moved with his family
to Great Britain. In 1986, Yakou followed his children to the
United States, where he began to live and work pursuant to a L-1
visa. In 1989, his application for LPR status in the United States
was approved, and he was issued a “green card.” A few years
later, he was naturalized in the United Kingdom and received a
British passport, although he retained his Iraqi citizenship.
In early 1993, federal law enforcement agents searched
Yakou’s home and business in California and seized personal
papers as well as business files, records, and equipment. Yakou
believed that he had been mistreated by the United States, and he
decided that he would no longer live in this country. He so
informed his wife and children. Yakou resumed living in
London, primarily residing there from that time until 1998, at
which point he returned to Baghdad. He has lived and worked
in Iraq ever since, establishing a new personal life there as well.
By 1994, Yakou no longer owned any real property in the United
States. He has not worked in the United States since 1993, and
he last filed a federal income tax return in 1992.
The parties disagree, however, on the legal significance of
the following circumstances. Although Yakou has not lived in
the United States in over ten years, he never formally renounced
his LPR status by filing Form I-407, “Abandonment of Lawful
Permanent Resident Status,” with United States immigration
authorities. Neither has the Board of Immigration Appeals
(“BIA”) adjudged that his LPR status has changed. Since early
1993, Yakou has returned to the United States on less than ten
occasions for no more than a few weeks at a time. These trips
appear predominately, if not exclusively, to have involved
visiting his family, and he stayed with family members while in
the United States. Prior to January 2000, however, Yakou used
his “green card,” which indicates LPR status, to enter the
6
country. At this point, he apparently lost the card, and, although
he may have requested a new card, he was admitted on his
British passport during his last three visits to the United States.
Yakou voluntarily returned to the United States in October
2003 only when a federal agent from Immigration and Customs
Enforcement contacted him while he was on business in
Thailand and suggested that he could assist his son, Regard, who
had been arrested in Iraq on brokering charges and would be
transported to the United States. Upon his arrival in the United
States, Yakou was arrested pursuant to a previously sealed
indictment. The single-count indictment alleges that Yakou and
his son engaged in brokering activities involving defense articles
and defense services with the government of Iraq without
obtaining written approval from the State Department, in
violation of the AECA, 22 U.S.C. § 2778(b)(2), (c), the ITAR,
22 C.F.R. §§ 129.2(a)-(b), -.3, -.5 to -.7, and 18 U.S.C. § 2.
Specifically, the indictment alleges that in Iraq, from
approximately November 2000 to July 2003, Yakou and his son
negotiated and arranged for the sale, purchase, transfer, and
construction of six armored patrol boats for the government of
Iraq in return for a fee, commission, and other consideration.
While the indictment does not allege that either Yakou or his son
is a “U.S. person,” it is undisputed that Yakou’s son is a United
States citizen.
In the district court, Yakou moved to dismiss the indictment
under Rules 7 and 12 of the Federal Rules of Criminal
Procedure. Observing that the indictment appeared to be “poorly
drafted,” Yakou understood it to allege violation of five
regulations issued under the Brokering Amendment, and he
argued that he could not have violated those regulations as a
matter of law because after abandoning his LPR status in 1993
he was no longer a “U.S. person.” He noted that it was
7
undisputed that the conduct identified in the indictment took
place outside the United States. Yakou also moved to strike the
indictment’s reference to 22 U.S.C. § 2778(b)(2) because the
indictment did not allege an offense under that provision. In
opposition to the motion, the United States did not contest
Yakou’s interpretation of the indictment but argued, as it does on
appeal, that Yakou’s LPR status could change only through an
administrative procedure, either by filing Form I-407 or by
formal adjudication of his status by the BIA. In addition, Yakou
advanced a variety of reasons why the aiding and abetting charge
was invalid, including that there was no meaningful distinction
in the statutory text between aiding and abetting and violating the
statute as a principal, that Congress did not intend to regulate the
overseas brokering activities of non-U.S. persons, and that an
aiding and abetting theory would violate international law. The
United States responded that the district court had jurisdiction
over Yakou as an aider and abettor notwithstanding his
citizenship and residency because one can be prosecuted as an
aider and abettor even if one is incapable of violating the statute
as a principal.
The district court, while adopting the parties’ construction
of the indictment, rejected the United States’s position that the
loss of LPR status can occur only through administrative action
by immigration officials. It initially refused to dismiss the
indictment, however, because Yakou had not demonstrated that
his LPR status had changed. Upon reconsideration, the district
court reversed course, stating that it had improperly shifted the
burden to Yakou to demonstrate that he was no longer a “U.S.
person.” The United States agreed that it carried the burden of
proving that Yakou was a “U.S. person,” but argued, as it does
on appeal, that it met its burden by demonstrating that LPR status
continues until there has been formal administrative action
changing that status. Upon reexamining Yakou’s arguments, the
district court ruled that because Yakou had voluntarily
8
relinquished his LPR status prior to the period alleged in the
indictment, he was no longer a “U.S. person” against whom
brokering charges may be brought. The district court also ruled
that Yakou could not be prosecuted under 18 U.S.C. § 2 as an
aider and abettor of his son’s alleged brokering violations
because “facilitating” a brokering act, which is a violation of the
Brokering Amendment, is equivalent to aiding and abetting such
an act and thus cannot be used as a separate basis for establishing
jurisdiction over him.
II.
This court reviews de novo the district court’s dismissal of
an indictment based on questions of law. See, e.g., United States
v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004); United States v.
Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004). On appeal, the
United States contends that the district court erred by dismissing
the indictment before trial, when the Federal Rules of Criminal
Procedure do not provide a mechanism for summary judgment,
by ruling that LPR status can change without administrative
action by immigration officials, such that Yakou was not a “U.S.
person,” as defined by the ITAR, who is subject to prosecution
for brokering activities, and by ruling that Yakou could not be
indicted separately under 18 U.S.C. § 2 as an aider and abettor of
his son’s alleged violations of the brokering provisions. The
United States does not contend that, notwithstanding the district
court’s ruling on Yakou’s loss of LPR status, the indictment
charges a valid offense against him as a principal under 22
U.S.C. § 2778(b)(2); the district court did not rule on that issue,
and we do not address it.
A.
Pretrial dismissal of indictment. There is no federal criminal
procedural mechanism that resembles a motion for summary
judgment in the civil context. See, e.g., United States v.
DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000); United States v.
Nabors, 45 F.3d 238, 240 (8th Cir. 1995). Instead, Rule 12(b) of
9
the Federal Rules of Criminal Procedure provides that “[a] party
may raise by pretrial motion any defense, objection, or request
that the court can determine without a trial of the general issue.”
The “general issue” has been defined as “evidence relevant to the
question of guilt or innocence.” United States v. Ayarza-Garcia,
819 F.2d 1043, 1048 (11th Cir. 1987) (citing United States v.
Barletta, 644 F.2d 50, 58 (1st Cir. 1981)).
While Rule 12(b) does not explicitly authorize the pretrial
dismissal of an indictment on sufficiency-of-the-evidence
grounds, the United States failed to object in the district court to
its pretrial determination of whether Yakou was a “U.S. person”
covered by the Brokering Amendment and the ITAR. Indeed,
the United States provided Yakou with discovery regarding his
pretrial jurisdictional claim and also introduced evidence to
bolster its claim that Yakou retained his LPR status, quite
possibly because it would have been unable to appeal a judgment
of acquittal under Rule 29 of the Federal Rules of Criminal
Procedure as jeopardy would have attached, see United States v.
Alfonso, 143 F. 3d 772, 777 n. 7 (2d Cir. 1998). Several circuits
have upheld, in the absence of a government objection, the
district court’s pretrial dismissal of an indictment on sufficiency-
of-the-evidence grounds where the material facts are undisputed
and only an issue of law is presented. See United States v.
Phillips, 367 F.3d 846, 855 & n.25 (9th Cir. 2004); United States
v. Hall, 20 F.3d 1084, 1087-88 (10th Cir. 1994); United States v.
Levin, 973 F.2d 463, 470 (6th Cir. 1992); United States v. Risk,
843 F.2d 1059, 1061 (7th Cir. 1988). Other circuits have
recognized that a district court can properly adjudge the
sufficiency of the evidence before trial where the government
has made a full proffer of evidence or where there is a stipulated
record, situations similar to the undisputed facts at issue here.
See DeLaurentis, 230 F.3d at 660-61 (3d Cir.); Alfonso, 143 F.3d
at 776-77 (2d Cir.); cf. Nabors, 45 F.3d at 240 (8th Cir.). Only
the Eleventh Circuit has held that even where there are
10
undisputed facts a district court may not engage in a pretrial
determination of the sufficiency of the evidence, see United
States v. Salman, 378 F.3d 1266, 1267-69 (11th Cir. 2004), but
there was no indication that the government failed to object in
the district court. Although this court has not directly spoken on
the issue, it has upheld a pretrial dismissal of counts of an
indictment based on a question of law. See, e.g., United States
v. Espy, 145 F.3d 1369, 1370 (D.C. Cir. 1998); United States v.
Oakar, 111 F.3d 146, 147-50 (D.C. Cir. 1997).
The United States’s procedural challenge to the district
court’s pretrial ruling is untimely under well-established
principles of waiver, see, e.g., United States v. Hylton, 294 F.3d
130, 135-36 (D.C. Cir. 2002), and the existence of undisputed
facts obviated the need for the district court to make factual
determinations properly reserved for a jury, see, e.g., Phillips,
367 F.3d at 855 n.25; United States v. Korn, 557 F.2d 1089, 1090
(5th Cir. 1977). Although it is an “unusual circumstance[]” for
the district court to resolve the sufficiency of the evidence before
trial because the government is usually entitled to present its
evidence at trial and have its sufficiency tested by a motion for
acquittal under Rule 29 of the Federal Rules of Criminal
Procedure, Risk , 843 F.2d at 1061, we join those circuits in
upholding the district court’s pretrial dismissal of the indictment
based on a question of law where the government has not made
a timely objection.
B.
LPR status. The INA, the Brokering Amendment, and the
ITAR are all silent regarding the manner and the point at which
LPR status changes. While 8 U.S.C. § 1101(a)(27)(A) defines
the “special immigrant[s]” exempt from numerical caps on entry
as, inter alia, LPRs who have been out of the country for a
“temporary visit abroad,” neither it nor other provisions of the
INA address when LPR status ceases to exist or whether certain
11
procedures must take place to effect a change of status. The
Attorney General, by regulation, has created the BIA in the
Justice Department’s Executive Office for Immigration Review
to interpret the immigration laws. 8 C.F.R. § 1003.1(a)(1)
(2004). While the administrative and enforcement
responsibilities for the INA are divided among the President, the
Attorney General, the Secretary of Homeland Security, and the
Secretary of State, among others, the Attorney General’s
interpretations and rulings “with respect to all questions of law
shall be controlling.” 8 U.S.C.A. § 1103(a). Further, while the
Attorney General retains the authority to review and modify BIA
decisions, see id. § 1103(g)(2); 8 C.F.R. § 1003.1(g)-(h), absent
such a modification, BIA decisions are binding on all
immigration judges and officers and employees of the
Department of Homeland Security, see id. § 1003.1(g). The
Supreme Court, recognizing the BIA’s expertise over
immigration matters and its power to exercise the Attorney
General’s statutory authority to interpret the immigration laws,
has applied the principles of deference articulated in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 841 (1984), to BIA decisions. See INS v. Aguirre-Aguirre,
526 U.S. 415, 424-25 (1999). Accordingly, we examine the
BIA’s decisions to determine if Yakou’s position that his LPR
status changed in 1993 is inconsistent with BIA precedent.
Numerous BIA decisions express in dicta the BIA’s view
that LPR status can change outside the formal adjudicatory
process associated with removal. These decisions distinguish
between an involuntary termination of status as a result of
removal proceedings and a voluntary change in status outside
those proceedings. For example, in Matter of Lok, 18 I. & N.
Dec. 101 (BIA 1981), after ruling that it would “deem[] the
lawful permanent resident status of an alien to end with the entry
of the final administrative order of deportation,” id. at 105, the
BIA explained that “[o]ther circumstances under which lawful
12
permanent resident status may change include: . . . when [one]
relinquishes such status, intentionally or unintentionally,” id. at
107 n.8 (internal citations omitted). Similarly, in Matter of
Duarte, 18 I. & N. Dec. 329 (BIA 1982), the BIA stated that in
addition to a final administrative order of exclusion and
deportation, a person could “have been . . . divested of his lawful
permanent resident status . . . through abandonment, intentional
or unintentional.” Id. at 332 & n.3; see also Matter of Gunaydin,
18 I. & N. Dec. 326, 327 & n.1 (BIA 1982); Matter of Kane, 15
I. & N. Dec. 258, 260 & n.1 (BIA 1975). Thus, in adjudicating
an individual’s LPR status, the BIA has expressed its
understanding that the status changes at the point a LPR engages
in an abandoning act, like departing the United States for more
than a “temporary visit abroad,” 8 U.S.C. § 1101(a)(27)(A), not
at the point when the BIA makes a determination of the person’s
status in a removal proceeding or when the individual files Form
I-407. For instance, in Matter of Kane, the BIA found that a
LPR’s status “ha[d] already changed because her trip or trips
[abroad] were not temporary.” 15 I. & N. Dec. at 265 n.3. The
BIA explained, “If any of her absences have been other than
temporary in nature, she has lost the status of lawfully admitted
immigrant and would not now have that status.” Id. Similarly,
in Matter of Montero, 14 I. & N. Dec. 399 (BIA 1973), the BIA
found that a LPR “lost” her status at the point “she departed . . .
with no fixed intent to return” to the United States. Id. at 401;
see also Matter of Huang, 19 I. & N. Dec. 749, 757 (BIA 1988).
None of these cases, however, are similar to Yakou’s
circumstances. Yakou has not been subject to removal
proceedings; nor has he sought readmission to the United States
by means of a reentry permit or a returning resident’s visa; nor
has he filed Form I-407. To the extent the BIA has expressed its
general interpretation of the INA in these cases, it was not
required to apply its interpretation of voluntary abandonment of
LPR status, thus leaving only dicta that is helpful, but not
13
dispositive of Yakou’s contention that his status changed in
1993. It is nonetheless true, however, that the BIA has rejected
the notion that it must “overlook” abandonment of LPR status
where there has been no formal administrative action. Matter of
Abdoulin, 17 I. & N. Dec. 458, 460 (BIA 1980). In that case, the
BIA affirmed the denial of a visa for the wife of a purported LPR
after he had been absent from the United States for eleven years.
Despite the fact that there were no formal proceedings
adjudicating the abandonment of his LPR status and although he
could still test the continuation of that status before the BIA, the
BIA ruled that he had failed to meet his burden to show his status
continued, and it declined to afford him the benefits of that
status, thus implicitly recognizing that his LPR status had already
changed as a result of his ceasing to live in the United States.
While the United States maintains these BIA decisions were
ruling only that a loss of LPR status is irreversible, none of them
suggest that the only way that one can voluntarily relinquish or
abandon LPR status is by filing Form I-407. There is no
regulation indicating that Form I-407 is required to change LPR
status, and Form I-407 itself allows individuals to indicate either
that they are seeking to abandon their LPR status or that they
already “have abandoned [that] status” prior to filing the Form.
The United States relies on a legal opinion from the Acting
General Counsel of the Immigration and Naturalization Service
(“INS”) stating that a LPR “remains a lawful permanent resident
until the Government proves otherwise in deportation or
exclusion proceedings against him or her, or until the petitioner
voluntarily abandons residence and adjusts to nonimmigrant
status [regarding diplomatic occupations under 8 U.S.C. § 1257],
or leaves the United States and executes a Form I-407,
Abandonment of Lawful Permanent Resident Status.” 1 INS &
DOJ Legal Opin. § 91-2 (Jan. 9, 1991) (internal citations
omitted). Whatever its legal merit, the opinion does not address
Yakou’s circumstances.
14
There is yet another reason for adopting Yakou’s position
that LPR status can change without formal administrative action:
not only is there no regulatory indication that formal
administrative action is required before a LPR can voluntarily
relinquish that status, but it is consistent with Congress’s
determination that United States citizenship may be lost
automatically, without any administrative or judicial
determination, when a person has voluntarily engaged in certain
conduct with the requisite intent. See 8 U.S.C. §§ 1481, 1488
(2000); see also United States ex rel. Marks v. Esperdy, 315 F.2d
673, 676 (2d Cir. 1963), aff’d by an equally divided court, 377
U.S. 214 (1964); cf. Afroyim v. Rusk, 387 U.S. 253, 268 (1967).
There are no exceptions listed in § 1481 or § 1488 requiring
administrative or judicial determinations before citizenship is
lost as might lend support to the United States’s view that a
formal adjudication or filing is required before a change in LPR
status can occur. The United States relies on United States v.
Grimley, 137 U.S. 147, 151-52 (1890), to support the proposition
that Yakou’s “breach” of LPR status (by reason of his alleged
violation of the AECA and the ITAR and departure from the
United States) cannot be used to escape criminal liability. But
Grimley is inapposite; under the ITAR, LPR status turns on
immigration law, and the United States fails to show that LPR
status operates in a way comparable to the military relationship
at issue in Grimley.
The United States’s reliance on a 1996 revision to a
regulation defining LPR status, which provides that “[s]uch
[LPR] status terminates upon entry of a final administrative order
of exclusion, deportation, or removal,” 8 C.F.R. § 1.1(p) (2004),
is likewise misplaced. The Justice Department indicated in
response to comments about the 1996 amendment to 8 C.F.R. §
1.1(p) that the amendment was intended to codify the Lok rule
that is identical to the added text. See 61 Fed. Reg. 18,900,
18,900 (Apr. 29, 1996). Adopted to provide “finality in
15
immigration proceedings,” id., the language upon which the
United States now relies was intended to apply only to
proceedings brought against a LPR, and it does not foreclose a
change in status by means other than formal termination. In
other words, “termination” of LPR status under 8 C.F.R. § 1.1(p)
is only a subset of the “change” of such status mentioned in the
INA, 8 U.S.C. § 1101(a)(20), and does not address the totality of
the means by which Yakou’s LPR status could change.
No more persuasive is the United States’s contention that
permitting LPR status to change at the time an abandoning act
occurs outside of a formal administrative proceeding is
inconsistent with 8 C.F.R. § 235.3(b)(5)(ii), which recognizes an
individual who has abandoned LPR status as a “verified lawful
permanent resident” when he or she attempts to reenter the
United States. While this accurately states the regulation, it does
not conflict with Yakou’s contention that he abandoned his
LPR status in 1993 and his status changed at that time. If a
putative LPR “has abandoned or relinquished that status,” then,
upon return to the United States, he is “regarded as seeking an
admission” to the country, 8 U.S.C. § 1101(a)(13)(C), and he
“must undergo an inspection as though an arriving alien,” Alaka
v. Elwood, 225 F. Supp. 2d 547, 553 (E.D. Pa. 2002). Although
such an individual would be considered a “verified lawful
permanent resident” if the United States’s data systems or other
available means so indicated, see 8 C.F.R. § 235.3(b)(5)(i), and
that would prevent his removal under expedited proceedings
because he is not clearly inadmissible, see id. § 235.3(b)(5)(ii),
he can still be subject to a regular removal proceeding under 8
U.S.C. § 1229a on the ground that he is no longer a LPR because
his status has changed, see id. While Yakou would contingently
retain his LPR status throughout a removal proceeding in an
effort to preserve his rights should he ultimately be found to have
retained that status, there is no reason to attach that status to him
in a criminal proceeding where he disclaims it and the
16
undisputed facts would compel a finding of abandonment.
Whatever administrative complexity might result in the
absence of formal LPR abandonment proceedings, it arises
directly from the regulatory scheme for recognizing LPR status
derived from the immigration laws and indirectly from
Congress’s decision to terminate United States citizenship
automatically in certain instances without concern for the
regulatory implications of an undocumented change of status.
The United States’s suggestion that a federal court’s
determination of Yakou’s status interferes with the separation of
powers under which immigration matters are largely within the
province of the Executive Branch, see Oloteo v. INS, 643 F.2d
679, 680 (9th Cir. 1981), obscures the fact that the court is not
changing Yakou’s LPR status; rather, the court is looking, as the
ITAR directs, see 22 C.F.R. § 120.15, to 8 U.S.C. § 1101(a)(20)
as interpreted by the BIA to determine whether Yakou’s LPR
status changed over ten years ago when he departed the United
States for more than a “temporary visit abroad,” 8 U.S.C. §
1101(a)(27)(A). The cases relied upon by the United States are
to no avail. In United States v. Ryba, 441 F.2d 1137 (3d Cir.
1971), the LPR was seeking to have his selective service board
change his status, as opposed to claiming that his status had
already changed. And Foy v. Schantz, Schatzman & Aaronson,
P.A., 108 F.3d 1347, 1349 (11th Cir. 1997), is inapposite because
the court determined that “Congress intended to import” the
INA’s definition of LPR into the diversity jurisdiction statute, 28
U.S.C. § 1332(a) (2000), to determine whether a person is a
“citizen of a State”; to find that Foy, who had not been granted
LPR status pursuant to the INA, was a “citizen of a State” for
purposes of diversity jurisdiction, a court would have had to act
beyond its authority by conferring LPR status on him.
Having determined that nothing in the BIA’s decisions
17
interpreting 8 U.S.C. § 1101(a)(20) is adverse to Yakou’s
position that LPR status can change outside removal proceedings
and without filing Form I-407, the question remains whether the
United States has met its burden to show that Yakou maintained
his LPR status through November 2000, the beginning of the
period alleged in the indictment. To qualify as a LPR upon
seeking reentry into the United States, Yakou “must have
acquired lawful permanent resident status in accordance with our
laws, must have retained that status from the time he acquired it,
and must be returning to an ‘unrelinquished lawful permanent
residence’ after a ‘temporary visit abroad.’” Matter of Huang, 19
I. & N. Dec. at 753, quoted in Singh v. Reno, 113 F.3d 1512,
1514 (9th Cir. 1997). The inquiry into whether Yakou left the
United States for only a “temporary visit abroad” is relatively
easy. Yakou departed the United States in 1993 with the intent
to never live here again. He moved to London, where he resided
until 1998, and then he returned to his native Iraq where he has
lived ever since. Although during the past eleven years he has
traveled to the United States approximately nine times to visit his
family, he has stayed for only a few weeks during each visit.
These infrequent and short stays in the United States are
insufficient, as a matter of law, to support retention of his LPR
status. See, e.g., Singh, 113 F.3d 1512; Matter of Huang, 19 I.
& N. Dec. 749; Matter of Kane, 15 I. & N. Dec. 258; cf. Aleem
v. Perryman, 114 F.3d 672, 677 (7th Cir. 1997). The fact that
Yakou used his “green card” on several of these occasions to
enter the United States prior to 2000 is immaterial; the relevant
inquiry is not whether he may have wanted to retain his LPR
status, but whether his actions show that he has abandoned that
status. See Matter of Kane, 15 I. & N. Dec. at 265.
Based on undisputed facts about Yakou’s whereabouts since
1993, we hold that because Yakou’s LPR status changed after he
left the United States in 1993, the United States has failed to
demonstrate that Yakou was a “U.S. person” during the period
18
alleged in the indictment. The district court therefore properly
dismissed the indictment alleging that Yakou violated the
Brokering Amendment and the ITAR as a principal.
C.
Aiding and Abetting. The federal aiding and abetting statute
provides, in relevant part, that “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal.”
18 U.S.C. § 2(a) (2000); see also United States v. Wilson, 160
F.3d 732, 738 (D.C. Cir. 1998). The statute “typically applies to
any criminal statute unless Congress specifically carves out an
exception that precludes aiding and abetting liability,” United
States v. Angwin, 271 F.3d 786, 802 (9th Cir. 2001), and it long
has been established that a person can be convicted of aiding and
abetting another person’s violation of a statute even if it would
be impossible to convict the aider and abettor as a principal. See,
e.g., In re Nofziger, 956 F.2d 287, 290 (D.C. Cir. 1992); United
States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982); see also
Coffin v. United States, 156 U.S. 432, 447 (1895).
The aiding and abetting statute, however, is not so broad as
to expand the extraterritorial reach of the underlying statute. In
the cases cited by the United States – aiding and abetting by
private citizen of police officers’ violations of civil rights, see
United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966),
aiding and abetting by United Nations’ employee exempt from
registration requirements of United States citizen’s failure to
register as a foreign agent, see United States v. Melekh, 193 F.
Supp. 586, 592 (N.D. Ill. 1961), aiding and abetting by adult of
minor’s unlawful possession of alcohol, see State v. Norman, 229
N.W.2d 55, 56 (Neb. 1975), aiding and abetting by deputy
sheriff of prisoners’ forbidden sex acts, see People v. Fraize, 43
Cal. Rptr. 2d 64, 65-66 (Cal. Ct. App. 1995) – the evil sought
to be averted inherently relates to, and indeed requires, persons
19
in certain categories. Here, by contrast, the United States can be
hurt every bit as much by brokering activities without “U.S.
persons” as with them. Accordingly, the congressional choice to
limit liability to “U.S. persons,” is highly significant and
inconsistent with catching the non-U.S. person who happens to
engage in brokering activities with a “U.S. person.”
Congress legislates against the backdrop of the presumption
against extraterritoriality, see, e.g., EEOC v. Arabian Am. Oil
Co. (“ARAMCO”), 499 U.S. 244, 248 (1991), and absent an
indication from Congress to the contrary, the crime of aiding and
abetting “confer[s] extraterritorial jurisdiction to the same extent
as the offense[] that underlie[s it].” United States v. Hill, 279
F.3d 731, 739 (9th Cir. 2002); cf. United States v. Yousef, 327
F.3d 56, 87-88 (2d Cir. 2003); United States v. Felix-Gutierrez,
940 F.2d 1200, 1205 (9th Cir. 1991); United States v. Layton,
855 F.2d 1388, 1395-96 (9th Cir. 1988). Federal laws are
deemed to apply only to the territorial jurisdiction of the United
States unless Congress provides “affirmative evidence” to the
contrary, Sale v. Haitian Centers Council, Inc., 509 U.S. 155,
176 (1993), which is “clearly expressed,” ARAMCO, 499 U.S. at
248; see also United States v. Delgado-Garcia, 374 F.3d 1337,
1344-45 (D.C. Cir. 2004).
While the text of the Brokering Amendment refers to “every
person,” 22 U.S.C. § 2778(b)(1)(A)(ii)(I), Congress has
expressed its intent to limit the extraterritorial reach of the
Brokering Amendment and thus the ITAR to “U.S. persons.”
The legislative history of the Brokering Amendment indicates
that Congress targeted this class of persons, and, more
specifically, that Congress recognized that “U.S. persons are
involved in arms deals that are inconsistent with U.S. policy.”
HOUSE REPORT at 11, 12. In the Brokering Amendment, then,
Congress was concerned with both United States brokers of arms
20
and foreign brokers of arms located in the United States, but not
with foreign brokers located outside the United States, see id.,
even though each type of individual could be involved in
brokering activities affecting the United States. The ITAR, in
turn, reflects Congress’s intent that the Brokering Amendment
apply extraterritorially solely to “U.S. persons.” Under the
ITAR, the Brokering Amendment applies only to “U.S.
person[s], wherever located, and any foreign person located in
the United States or otherwise subject to the jurisdiction of the
United States.” 22 C.F.R. § 129.3(a). The ITAR’s structure and
text make clear that registration requirements vary based on the
individual’s relationship with the United States, and that foreign
brokers located and acting outside the United States were not
intended to be covered by the ITAR unless “otherwise subject
to the jurisdiction of the United States.” Id. As noted, the
United States does not argue that Yakou is “otherwise subject to
the jurisdiction of the United States.”
To adopt the United States’s position that Yakou can be
charged with aiding and abetting alleged brokering activities in
Iraq, even if Congress and the implementing regulations did not
contemplate such coverage, would greatly expand the scope of
the registration and licensing requirements by regulating not just
“U.S. person[s], wherever located, and any foreign person
located in the United States or otherwise subject to the
jurisdiction of the United States,” 22 C.F.R. § 129.3(a), but also
regulating non-U.S. persons located and acting outside the
United States. Congress has not expressed with the requisite
clarity that it sought to apply the Brokering Amendment and, by
extension the ITAR’s brokering provisions, in such an
extraterritorial manner, see ARAMCO, 499 U.S. at 248; Delgado-
Garcia, 374 F.3d at 1344-45; Nieman v. Dryclean U.S.A.
Franchise Co., 178 F.3d 1126, 1129 (11th Cir. 1999), as a non-
U.S. person outside the United States is not punishable as a
principal except where subject to the jurisdiction of the United
21
States, see 22 C.F.R. § 129.3(a); HOUSE REPORT at 11.
Accordingly, while the Brokering Amendment and the ITAR
have extraterritorial effect for “U.S. persons,” they do not have
such effect for “foreign persons,” like Yakou, whose conduct
occurs outside the United States. To apply the aiding and
abetting statute to Yakou’s conduct in Iraq would confer
extraterritorial jurisdiction far beyond that which is available
directly under the Brokering Amendment and the ITAR. While
the AECA has been described as “inherently international in
scope,” United States v. Evans, 667 F. Supp. 974, 981, 985
(S.D.N.Y. 1987), in that case the court was concerned with the
transfer of American-made weapons that were exported from the
United States; no such allegation appears in Yakou’s indictment,
which refers only to brokering activities in Iraq, and the United
States makes no such claim on appeal.
The other cases on which the United States relies are also
distinguishable. Felix-Gutierrez and Hill involved statutes that
do not differentiate between persons who are subject to
extraterritorial jurisdiction. Because Congress sought
extraterritorial effect for the statutes in Felix-Gutierrez and Hill,
they apply extraterritorially to any person who violates their
provisions and thus to any person who aids and abets a
violation. The Brokering Amendment and the ITAR, however,
apply extraterritorially to Yakou only if he is a “U.S. person.”
While there is some tension between the presumption against
extraterritoriality and the principle that aiders and abetters need
not be able to be convicted as principals, the presumption against
extraterritoriality, which recognizes courts’ limited foreign
policy expertise, see ARAMCO, 499 U.S. at 248, should control.
Given the legislative history of the Brokering Amendment, as
reflected in the ITAR, it reasonably follows that Congress and
the State Department did not go to such lengths to exclude non-
U.S. persons located outside the United States from direct
extraterritorial liability under the Brokering Amendment only to
22
permit these same persons to be charged under an aiding-and-
abetting statute for the identical conduct that they have
determined should not result in their punishment as principals.
Although United States v. Beck, 615 F.2d 441 (7th Cir. 1980),
upheld the conviction of a South African national for aiding and
abetting the illegal export of American-made arms from within
the United States, the government’s appeal, following the grant
of a post-verdict motion for judgment, addressed only the
sufficiency of the evidence to convict; the court was not
presented with the contention made by Yakou that aiding and
abetting liability does not apply to a non-U.S. person located
outside the United States. Because the Brokering Amendment
and the ITAR limit the extraterritorial liability for failing to
register with the State Department and to obtain a license before
engaging in brokering activities to “U.S. persons,” we hold that
Yakou, as a non-U.S. person located outside the United States,
cannot aid and abet his son’s alleged violation of the Brokering
Amendment and the ITAR outside the United States.
Accordingly, we affirm the district court’s order dismissing
the indictment.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the
judgment:
Although I concur in the judgment, I do so somewhat
reluctantly because the government has waived at least two
issues that, had they been raised, might have convinced me to
reverse. First, to me, the phrase “[a]ny U.S. person, wherever
located, ...,” 22 C.F.R. § 129.3(a) (emphasis added),
contemplates that the statute has extraterritorial reach over an
LPR, who is included in the term “U.S. person,” as well as a U.S.
citizen. See 22 C.F.R. § 120.15. Because a “U.S. person”
includes both citizens and LPRs, both can violate the Brokering
Amendment while outside (and, presumably, for longer than
“temporarily”) the United States, i.e., “wherever located.” If the
drafters had intended the statute’s extraterritorial reach to include
only U.S. citizens, the regulation would have provided “any U.S.
citizen, wherever located, and any other U.S. person or foreign
person located in the United States….” Although we conclude
that Yakou had lost his LPR status before he allegedly violated
the Brokering Amendment outside the United States, nonetheless
an LPR can violate the Brokering Amendment outside the
United States.
Second, the determination of Yakou’s status as a “U.S.
person” vel non seems to me to be a question of fact for the jury.
The majority appears to consider it both a question of law and a
sufficiency of the evidence issue. See Maj. Op. at 11 (“the
existence of undisputed facts obviated the need for the district
court to make factual determinations properly reserved for a
jury”); id. (“we … uphold[] the district court’s pretrial dismissal
of the indictment based on a question of law….”). The
government, however, has chosen not to press either issue and,
accordingly, I agree with the majority that the district court must
be affirmed.
One further cautionary note: In upholding the district
court’s dismissal of the aiding and abetting count, the majority
2
declares that “Congress … did not go to such lengths to exclude
non-U.S. persons from direct extraterritorial liability under the
Brokering Amendment only to permit these same persons to be
charged under an aiding-and-abetting statute for the identical
conduct….” Maj. Op. at 23. The district court concluded that
“‘facilitating’ a brokering act is equivalent to ‘aiding and
abetting’ such an act” and therefore, without jurisdiction over
Yakou as a principal, the aiding and abetting count against him
could not stand. Dist. Ct. Mem. Op. at 17 (April 9, 2004) [YA
30]. In other statutory contexts, however — and in the absence
of the jurisdictional defect that is dispositive here — the
inclusion of “facilitating” as an illegal act has not prevented the
government from successfully charging a defendant with aiding
and abetting a facilitation. For example, paragraph two of 18
U.S.C. § 545 makes it a crime for any person to knowingly
“facilitate[] the transportation, concealment, or sale” of
smuggled goods after importation. Id. In United States v. Dodd,
43 F.3d 759 (1st Cir. 1995), the First Circuit upheld Dodd’s
aiding and abetting conviction based on his having facilitated the
transportation of smuggled weapons. Id. at 762–3. Thus, the
majority’s declaration should not, I believe, be read to mean that
an aiding and abetting conviction can never be secured under the
Brokering Amendment of the Arms Export Control Act (AECA).