The opinion
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”) *245 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 238 (“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 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 244. 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).