Archive for the ‘ICE’ Category



Let Them Eat (Yellow)cake: The Effect of Stretching U.S. Sanctions Too Thin

Posted by at 10:59 pm on September 5, 2013
Category: Criminal PenaltiesEconomic SanctionsICEIran SanctionsSanctions

Yellowcake Uranium source: [Public Domain]On August 22nd, Patrick Campbell of Sierra Leone was arrested by ICE agents at JFK Airport and charged with violating the Iranian Transactions Regulations. Campbell’s arrest made global headlines because he concealed raw uranium inside shoes in his luggage. According to an affidavit attached to the criminal complaint against Campbell, he had communicated for over a year prior to his arrest with an undercover ICE agent about selling Uranium 308 (or yellowcake) from Sierra Leone to Iran. In 2013, apparently without any assistance from ICE, Campbell was able to obtain on his own a U.S. travel visa in order to meet with the agent in the United States about the sale of uranium. He was arrested after clearing U.S. Customs.

It would appear that Campbell could be charged with any number of crimes under U.S. law because of his possession of uranium and, as the AP reported last week, his travelling on a fake passport. The only offense alleged in the criminal complaint, however, is “[b]rokering the supply of goods which the defendant knew were destined and intended for supply to Iran.” The affidavit alleges that Campbell impermissibly furthered the brokering by “flying into JFK” to finalize the sale and “bringing with him a sample of Uranium [and] a contract for the sale.”

Prosecuting Campbell for violating U.S. sanctions is a case of compelling facts making shaky law. It does not appear that Campbell met, spoke or even texted with the undercover ICE agent once he entered the United States. Had he done so, a federal prosecutor would be in a much better position to show Campbell attempted to “act as broker” in the United States as required under the Regulations.

U.S. sanctions’ severe penalties are obviously enticing for law enforcement to use wherever a case could be made. But what if a foreign person is attempting to fly out of the United States to conduct business relating to Iran and has on his laptop contract documents evidencing such business? Under the logic of the Campbell complaint, the foreign person could be arrested for his attempt to leave the United States in order to conduct eventual business relating to Iran. While prosecution under such circumstances alone is unlikely, it would not seem so unlikely after the Campbell case for the government to prosecute someone under such circumstances if the foreign person faced other charges and sanctions violations carried the largest penalty.

The United States has been recently expanding its reach over foreign persons’ dealings with Iran, most notably foreign subsidiaries of U.S. parent companies. As the stretch of sanctions includes more foreign individuals and their subsequent imprisonment, the United States may find itself retreating from expanding prosecution after a successful defense or even international criticism that U.S. sanctions as so applied are too attenuated for a reasonable interpretation of the sanctions’ purpose or the laws themselves.

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Copyright © 2013 Clif Burns. All Rights Reserved.
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Honey Dumping Case Dumped After ICE Flunks Test

Posted by at 11:51 pm on May 23, 2013
Category: Criminal PenaltiesCustomsICE

Med u saću by akarlovic [CC-BY-SA 3.0]In November 2011, Immigration and Customs Enforcement breathlessly announced that it had broken a honey dumping scheme and had indicted three Chinese nationals for trying to avoid dumping duties on Chinese honey by importing mislabeled Chinese honey as rice fructose. In its press release, ICE patted itself on the back for its good work in protecting domestic honey producers and expressed outrage that these miscreant importers had deprived the United States of more than $1,150,000 in anti-dumping duties.

“HSI agents and CBP officers working together at our nation’s ports of entry provide an important safeguard against those seeking to break the law for their own enrichment,” said Susan McCormick, ICE HSI special agent in charge in Tampa. “This type of criminal behavior poses serious dumping risks to domestic U.S. honey producers who are in danger of being run out of the market because of this fraud.”

And then last month, the Assistant U.S. Attorney filed a motion with the court requesting leave to dismiss its case against the defendants, cryptically stating that “newly discovered evidence makes it unlikely that the government will be able to prove” its case, a motion that the judge promptly granted. And today we learned what that newly discovered evidence was and why ICE was hiding in the corner hoping that no one would notice.

According to a press release issued today by the attorney for one of the defendants, the government had sent a sample for testing to an independent laboratory in Germany after the court had ruled that the test results from the Customs lab in Savannah allegedly proving that the imports were honey were unreliable and inadmissible. Those independent test results proved what the defendants had been claiming all along: they were importing rice fructose, not honey.

Oddly, there has been no press release from ICE on this development in the case.

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Copyright © 2013 Clif Burns. All Rights Reserved.
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ICE Nails Canadians for Exporting Cheese from United States

Posted by at 6:37 pm on October 30, 2012
Category: Agricultural ExportsCriminal PenaltiesICE

cheeseA reader sent me this press release from Immigration and Customs Enforcement:

One officer and a former officer with the Niagara Regional Police Service (NRP), and an associate are in custody in Canada Thursday following an investigation into a cheese smuggling scheme. …

The arrests were announced by James Spero, special agent in charge, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) Buffalo, the Canadian Border Services Agency (CBSA) and the NRP. …

Scott Heron, 39, Casey Langelaan, 48, and Bernie Pollino, 44, all of whom reside in Fort Erie, Ontario, have been charged for smuggling goods, evasion of duties and other related charges under Canadian laws. …

The network involved the purchasing of cases of cheese and other food items in the United States and transporting them into Canada without declaring the items or paying duty. Once the products arrived in the country, they were sorted and prepared for distribution to a variety of restaurants in southern Ontario.

Who knew that it was ICE’s job to help Canada put U.S. cheese makers out of business with punitive tariffs on American cheese?

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Copyright © 2012 Clif Burns. All Rights Reserved.
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Understanding the Law You Enforce and Other Minor Details

Posted by at 7:15 pm on January 9, 2012
Category: ICEUSMIL

AD-4N SkyraiderApparently it is not a job requirement at Immigration and Customs Enforcement to have to understand the laws that you are charged with enforcing, as this recent press release from ICE illustrates all too well. The press release announces the forfeiture of a Douglas AD-4N Skyraider and associated parts that were alleged to have been illegally imported into the United States.

Now let’s hear about the case from Special Agent Raymond R. Parmer, Jr., who quickly reveals that he doesn’t understand at least some of the laws that the taxpayers pay him to enforce:

“The Skyraider aircraft, its cannons and parts are all subject to import licensing requirements as ‘defense articles’ under the Arms Export Control Act. Federal law prohibits the importation of defense articles without a license or permit,” said Raymond R. Parmer, Jr., special agent in charge of Homeland Security Investigations (HSI) in New Orleans. “ICE aggressively investigates these cases in order to deter this type of illegal activity and protect those who abide by our nation’s laws.” Parmer oversees responsibility for the states of Alabama, Mississippi, Arkansas, Tennessee and Louisiana.

Er, no. The aircraft and the cannons are subject to import licensing requirements as “defense articles.” The parts, well, not so much. Permanent imports of defense articles into the United States are governed by the United States Munitions Import List, which is a subset of the United States Munitions List. Not everything on the USML requires a license for permanent (as opposed to temporary) import into the United States. And aircraft parts are one of those things.

Aircraft parts are covered by Category VIII(h) of the USML. Now let’s take a look at Category VIII of the USMIL:

NOTE: Category VIII (b) through (j) and Categories IX, X, XI, XII and XIII of ‘‘Munitions List’’ deleted as inapplicable to imports

Oops. Maybe Agent Parmer ought to try actually reading the USMIL before speaking up in a press release about what does and does not require an import license.

Not surprisingly, this is not the first time of which I am aware where ICE agents failed to understand that the USML and the USMIL are not co-extensive. I was involved in a case where my client was being prosecuted for illegal exports that the client was alleged to have made to undercover federal agents. During the course of plea negotiations, an ICE agent came zooming in with an announcement that Customs had seized some military electronics that my client was said to be illegally importing without a license, citing Category XI of the USML. The agent urged additional criminal charges and the end of the plea-bargain discussions. I pointed out to the U.S. Attorney involved that Category XI was not on the USMIL and that permanent imports of military electronics did not require a license. He was sufficiently irate over the ICE agent’s misrepresentation of applicable law that he made the agent personally deliver the improperly seized items to my client at my client’s facility.

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Copyright © 2012 Clif Burns. All Rights Reserved.
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ICE-capades Presents “The Sting”

Posted by at 4:30 pm on March 19, 2007
Category: ICE

The StingExport Law Blog previously reported that Iran was attempting to buy parts for F-14 Tomcats in their fleet from U.S. government military surplus sales. A recent article in the San Diego Union-Tribune, which I didn’t see until this morning, provides another aspect of the story — namely, that investigations of F-14 part sales to Iran turned up four F-14s in private hands that hadn’t been properly demilitarized. Yes, that was four and, yes, that was four entire jets, not just parts.

But the story of the Tomcat jets gone wild, however amusing that might be, is not why I mention the Union-Tribune story. It’s this:

Federal officials got wind of the planes during an investigation that began with a probe of illegal arms sales to Iran by [Multicore Ltd], a Bakersfield company.

Company paperwork indicated that a former California parts dealer, Greg Forbes, had sold an F-14 canopy to Multicore, said Clark Settles, a U.S. customs agent who handled the case.

During a sting operation, Forbes agreed to get another F-14 canopy to a federal agent and obtained it from the Yanks museum, which led eventually to discovery that the four jets were improperly released by the Navy and that there was no documentation that they were properly demilitarized.

Meanwhile, the deal with Forbes fell through when he contacted the FBI to report his belief that the undercover agent was an Iranian official, court records indicated.

Forbes said he became suspicious when the agent uttered the word “Iran.”

“I said, ‘You can’t sell it to Iran. You have to have an export license,’” Forbes told the Los Angeles Times Wednesday. “Then that’s when I called the FBI and DCIS. I called Customs, even.”

The modus operandi of ICE here is interesting. They found the names of everyone who had sold anything to Multicore and then sent undercovers to try to see if they could induce them to sell parts directly to Iran. There is nothing to suggest here that the government had any reason to believe that Forbes was inclined to sell parts to Iran before ICE cooked up its sting operation.

Courts have held that the government is not required, of course, to have probable cause before initiating a sting operation. But a persuasive and definitive opinion by Judge Posner in United States v. Hollingsworth on another ICE sting operation makes clear that where the government lacks at least some prior indication that the sting victim may be interested in committing a crime, a defense of entrapment may be available:

There is no evidence that before [the ICE agent] began his campaign to inveigle [the defendants] into a money-laundering scheme either [of the defendants] Pickard or Hollingsworth had contemplated engaging in such behavior, beyond what little can be inferred from Pickard’s evident familiarity with the requirement of reporting large cash deposits and his suspicion of government informers. . . . A reasonable jury could have found Pickard and Hollingsworth “predisposed” if the term refers merely to a psychological state of willingness to break the law. But if the concept of predisposition is to serve the purpose of the doctrine of entrapment, it must mean more–must connote opportunity (what we are calling “readiness”) as well as willingness.

Just because someone sold parts to Multicore which later sold them to Iran is no indication that the parts dealer is likely to, or ready to, sell parts to Iran. ICE would probably do itself (and law enforcement in general) a favor by trying to catch illegal exporters rather than trying to turn ordinary merchants into criminals.

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Copyright © 2007 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)