United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 16, 2019 Decided August 20, 2019 No. 17-3018 UNITED STATES OF AMERICA, APPELLEE v. PHEERAYUTH BURDEN, APPELLANT Consolidated with 17-3019 Appeals from the United States District Court for the District of Columbia (No. 1:14-cr-00069-2) (No. 1:14-cr-00069-3) Lindsay C. Harrison, pro bono, argued the cause and filed the briefs for appellant. James Dawson entered an appearance. Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys. Before: HENDERSON, ROGERS and PILLARD, Circuit Judges. 2 Opinion for the Court filed by Circuit Judge PILLARD. Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROGERS. PILLARD, Circuit Judge: The Arms Export Control Act (AECA) criminalizes exporting defense articles without a license. 22 U.S.C. § 2778(b)(2), (c). Pheerayuth Burden, a U.S.-resident Thai national who ran a business exporting goods from the United States to Thailand, and his export business, Wing-On LLC (collectively, the defendants), exported five assault-rifle magazines and a grenade-launcher mount. Following a three-week trial, a jury convicted the defendants of conspiracy to violate the AECA, unlawful export in violation of the AECA, and conspiracy to launder money. The defendants contend that three of the district court’s rulings are reversible error. First, they argue that the court erred in admitting video deposition testimony by a key witness over a Confrontation Clause objection where the government itself rendered the witness “unavailable” at trial by deporting him shortly before trial without first making reasonable efforts to arrange his return. Second, they challenge a jury instruction defining the “willfulness” element of unlawful exportation of defense articles as requiring only proof that the defendants “acted with knowledge that the conduct was unlawful.” That instruction was inadequate, they contend, because it failed to tie the willfulness finding to the pertinent conduct and law, creating an impermissible risk that the jury relied on evidence that Burden thought he was violating Thai import law. Third, defendants claim that the district court erred in admitting Burden’s non-Mirandized statements because it failed to account for his limited English abilities in determining that he was not in custody when agents interrogated him. 3 We hold that the district court erred in admitting the deposition testimony because the government failed to make reasonable efforts before it deported the witness to procure his presence at trial. We conclude that the jury instruction was correct as far as it went in instructing the jury to find that “the defendant knew that his conduct was unlawful,” and that “willfully” violating the law does not require proof “that a defendant had read, was aware of, or had consulted the licensing provisions of the Arms Export Control Act” as such. Appellants’ Appendix (App.) 66. But we suggest clarification of the willfulness instruction to more squarely require a finding that defendants were aware of and knowingly violated their legal obligation not ...
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