Jun

29

Former Air Force Colonel Charged With Illegal Arms Brokering


Posted by Clif Burns at 10:44 pm on June 29, 2010
Category: Criminal PenaltiesPart 129

AK47sA retired Air Force colonel, John O’Toole, and an Israeli aeronautics engineer, Chanoch Miller, are the subjects of a recently unsealed indictment in connection with an alleged plan to ship 700 AK-47s to Somalia. What is most interesting about the indictment is that O’Toole is not only charged with illegal exports but also is charged with brokering violations — namely brokering the sale of defense articles to Somalia in violation of the arms embargo against Somalia and brokering the sale of these defense articles without first obtaining a brokering license from the State Department’s Directorate of Defense Trade Controls.

From the indictment it appears that O’Toole was mostly involved in arranging transportation of the rifles to Sudan, whereas Miller was in charge of procuring and selling the AK-47s. In exchange for O’Toole’s services, Miller was going to pay him a commission. This, of course, if true, appears to fit within the definition of brokering under section 129.2 of the ITAR. In particular, the definition of brokering in section 129.2(b) includes arranging for the transportation of defense articles.

What’s interesting here is that because of the brokering offenses, O’Toole is being charged with more counts than Miller, even though it’s not clear that a broker should be more culpable than an exporter. Both O’Toole and Miller are charged with an attempted export and a conspiracy to export. Miller can’t be charged with brokering on top of that because brokering requires an action taken “as an agent for others,” which is not the case for Miller because he bought the rifles himself and was acting on his own behalf in selling them. But what sensible policy would make O’Toole more culpable than Miller when Miller was selling the rifles and was just paying O’Toole to help him transport them?

[Hat tip to Laura Rozen for bringing the indictment to my attention]

Permalink

Bookmark and Share


3 Comments:


The danger in any regulatory activity is the possibility — no, the probability — of unintended consequences.

Comment by Muskwa on June 30th, 2010 @ 7:07 am

Assuming that the allegations of the Confidential Informant, who supposedly arranged the sale of the weapons, are factual – which is always a problem with CIs who are participants in the transaction, it is not entirely clear that Miller is subject to the jurisdiction of the United States. The CI who arranged the sale sourced 500 AKs in Panama and 200 from the US. The US is not the first place I would look to for military-grade AKs. One has to wonder if the CI sourced 200 AKs in the US just in order to get jurisdiction. This is beginning to smell like entrapment. If I were defense counsel, I’d play hard to get about a plea deal and use every trick under CIPA, FSIA and FOIA to learn all I could about this CI and his relation to the US and other governments and make it public every chance I could lawfully get.

On a more strategic level, I note that there is a colorable argument that these things weren’t going to Somalia, but to Somaliland. Somalia hasn’t had a functioning government for years and therefore does not meet the standards of international customary law for being a state. Somaliland has broken off from Somalia, conducted elections, and appears to meet the four prong test for being recognized as a sovereign state. While license(s) would still be needed for AKs from the US, the extra restrictions of 126.1 cited in the indictment don’t apply to a country not specifically listed. Could be that this whole scheme was cooked up by the USG and whoever else the CI is working for.

Comment by Hillbilly on June 30th, 2010 @ 11:11 am

I swear I saw this movie…

Comment by Garrett on June 30th, 2010 @ 11:29 am