Opinion
Criminal Action No. 03-449 (GK).
April 9, 2004
MEMORANDUM OPINION
The Government has brought criminal charges against Sabri Yakou, under the Brokering Amendment to the Arms Export Control Act ("EACA"), 22 U.S.C. § 2778(b) (1) (a), for his alleged participation in brokering a sale of six armored patrol boats to the Iraqi navy without first obtaining written approval from the Unites States State Department. This matter is currently before the Court on the Defendant Sabri Yakou's Motion for Reconsideration of the Court's denial of his Motion to Dismiss Indictment For Want of Jurisdiction. See, generally, Motion to Dismiss ("MTD") Order and Mem. Op. (entered 2/3/04). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, for the reasons stated below, Defendant's Motion for Reconsideration is granted and the Indictment as to Defendant Sabri Yakou is dismissed for want of jurisdiction. I. Background
While the Indictment refers to 22 U.S.C. § 2778(b) (2), both parties repeatedly refer to application of 22 U.S.C. § 2778(b) (1) (a) against Mr. Yakou.
Unless otherwise noted, these undisputed facts are taken from the Declaration of Sabri Yakou. See Def.'s Memo., Ex. A.
Mr. Yakou is a British citizen of Iraqi origin, who spent most of his time prior to 1985 living in the United Kingdom and Iraq. In 1985, he moved to the United States, and in 1986, Mr. Yakou received a U.S. L-1 visa to establish temporary legal residence here. Three years later, in September 1989, Mr. Yakou applied for and was granted lawful permanent resident ("LPR") status from the U.S. government and was issued a Permanent Resident Card, i.e., a green card.
The United States continued to be Mr. Yakou's primary residence until early 1993, when his California home and business were searched, pursuant to a duly issued search warrant, see Gov't's Opp'n at 11 n. 10, as part of an investigation by the Federal Bureau of Investigation ("FBI"). Following the 1993 investigation, from which no charges were brought against him, Mr. Yakou resided in the United Kingdom. Then in the mid-to-late 1990's, he began spending more time in Iraq, eventually establishing a home, business connections, and a personal life there. Throughout Mr. Yakou's subsequent time in both the United Kingdom and Iraq, he continued to travel extensively, including making multiple trips to the United States.
In October 2003, Mr. Yakou was contacted by an agent of U.S. Immigration and Customs Enforcement regarding the arrest of his son, Regard Yakou, for alleged brokering activities in Iraq. Mr. Yakou agreed to travel with the agent to the United States, where he was eventually arrested under the Indictment in this case, arising from allegations that "[Mr. Yakou] and his son, Regard Yakou, brokered the sale of six military patrol boats to the Iraqi navy." Gov't's Opp'n at 1.
Shortly thereafter, in December 2003, Mr. Yakou moved to dismiss the indictment against him for lack of jurisdiction, arguing that he could not be tried under the Brokering Amendment because he had abandoned his LPR status following the 1993 FBI investigation of his U.S. business. In response, the Government argued that Mr. Yakou had not abandoned his LPR status, either legally or factually, and it also asserted that jurisdiction over Mr. Yakou was proper as an aider and abettor to his son's alleged brokering activity.
On February 3, 2004, the Court denied the Motion to Dismiss Indictment as to Defendant Sabri Yakou For Want of Jurisdiction, finding that
given that the totality of Mr. Yakou's actions and statements raise serious doubts about whether he has truly abandoned his status as an LPR since 1993, the Court concludes that he has failed to show by "clear, unequivocal, and convincing" evidence that his LPR status has changed. MTD Mem. Op. at 9 (referencing a legal standard set forth in Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (citing Woodby v. INS, 385 U.S. 276, 277 (1966)). The Court then concluded that Mr. Yakou was a "U.S. person" against whom EACA charges could be brought.
Because the Motion to Dismiss was decided on other jurisdictional grounds, the Court did not determine whether there was also jurisdiction over Mr. Yakou as an aider and abettor.
II. STANDARD OF REVIEW
A motion for reconsideration should be granted only if the Court "finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and quotations omitted). In other words, the moving parties must show "new facts or clear errors of law which compel the court to change its prior position." National Ctr. for Mfg. Sciences v. Department of Defense, 199 F.3d 507, 511 (D.C. Cir. 2000) (internal citation omitted). A motion for reconsideration will not be granted if a party is simply attempting to renew factual or legal arguments that it asserted in its original briefs and that have already been rejected by the Court. See State of New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995); Assassination Archives and Research Ctr. v. United States Dep't of Justice, 828 F. Supp. 100, 101-102 (D.D.C. 1993).
III. ANALYSIS
Defendant Sabri Yakou moves for reconsideration on the third ground, alleging that the Court improperly shifted the burden of proof as to jurisdiction from the Government to Mr. Yakou, and that in so doing, the Court failed to apply the legal standard that has been used to determine LPR status in immigration cases. The Government argues that the Court's previous opinion did not impermissibly shift the burden of proof to Defendant, but rather that the Court found that the Government had met its initial burden and then considered the totality of the circumstances in assessing Mr. Yakou's alleged abandonment of his LPR status.
A. Reconsideration Is Appropriate Because the Government Has the Burden of Proving Jurisdiction in Criminal Cases.
The federal regulations implementing the EACA's Brokering Amendment require that "any U.S. person, wherever located, and any foreign person in the United States . . . 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" must register with the Office of Defense Trade Controls, now known as the Directorate of Defense Trade Controls. 22 C.F.R. § 129.3 (emphasis added). In briefing the Motion to Dismiss, the Government and Defendant disagreed as to the exact breadth of the definition of a "U.S. person" under U.S. immigration law but did agree that it included U.S. citizens and those persons with LPR status. In deciding the Motion to Dismiss, the Court concluded that "jurisdiction to charge him as a `U.S. person' under the EACA must be established primarily on the basis of his alleged LPR status" because it was undisputed that Mr. Yakou was not a United States citizen and that the alleged brokering activities did not take place in the United States. MTD Mem. Op. at 4.
In the present Motion, neither party disputes that the Court properly concluded "that in order to determine whether it has jurisdiction over Mr. Yakou in this criminal case, it must determine whether he still has LPR status, thus giving the Court jurisdiction over him as a `U.S. Person' to whom the Brokering Amendment applies." MTD Mem. Op. at 5-6. However, Mr. Yakou argues that in denying the Motion to Dismiss, the Court improperly placed the burden of proving jurisdiction upon him by making him prove that he had abandoned his LPR status. Defendant argues that such burden-shifting was improper because "in a criminal case, the government — not the defendant — always bears the burden of proving jurisdiction." Def.'s Mot. at 3 (emphasis in original).
The Government does not dispute that it bears the burden of proving jurisdiction in a criminal case. Instead, the Government insists that "the Court's holding [on the Motion to Dismiss] reflected a finding that the [G]overnment carried its burden of initial production and ultimate persuasion." Gov't's Opp'n at 6.
Contrary to the Government's assertions, the Court's previous Opinion did not "implicitly acknowledge that the [G]overnment had carried its burden of producing evidence of jurisdiction." Gov't's Opp'n at 7. The Government argues that the Court's previous opinion found that it had met its burden of proving jurisdiction over Mr. Yakou as a "U.S. person" because the Court found it was undisputed that Mr. Yakou had previously attained LPR status that was never formally relinquished by "filing a form I-407 or by seeking adjudication from the Immigration Court." Gov't's Opp'n at 7. However, the Court clearly rejected the Government's argument that formal waiver or adjudication were the only two ways in which LPR status could be lost. See MTD Mem. Op. at 5 (stating that "[t]he Government's approach limiting a federal court's ability to determine immigration status of defendants in criminal cases must be rejected" (emphasis added)). Thus, the Court did not find that the Government had initially satisfied its burden of proving that it had jurisdiction over Mr. Yakou based on his LPR status.
Moreover, it is clear that the Court's previous Opinion did place the burden of proving the absence of jurisdiction on the Defendant. The Court explained that while the relevant burden of proof was "normally placed upon the government" in deportation cases, it saw "no reason not to apply that same burden of proof in a criminal case where the defendant raises his immigration status as a bar to jurisdiction." MTD Mem. Op. at 6. The previous Opinion then clearly stated that the Court would "examine the evidence . . . to determined whether Mr. Yakou has established . . . that he has abandoned his LPR status." MTD Mem. Op. at 6-7 (emphasis added).
Thus, because the Court improperly placed the burden of proving lack of jurisdiction on Mr. Yakou, the Motion for Reconsideration must be granted and the Defendant's arguments concerning his abandonment of LPR status must be re-examined.
B. The Court Lacks Jurisdiction over Sabri Yakou Because He Is Not a "U.S. Person" Against Whom Charges Can Be Maintained Under the EACA's Brokering Amendment.
In determining whether the Court "has jurisdiction over Mr. Yakou in this criminal case, it must determine whether he still has LPR status, thus giving the Court jurisdiction over him as a `U.S. Person' to whom the Brokering Amendment applies." MTD Mem. Op. at 5-6. As it is undisputed that the Government bears the burden of proving jurisdiction in this matter, it must establish that Mr. Yakou has maintained his LPR status by "clear, unequivocal, and convincing evidence." See Singh, 113 F.3d at 1514 (citing Woodby, 385 U.S. at 277).
While it is undisputed that Mr. Yakou became a LPR in 1989, he argues that he has effectively abandoned his U.S. LPR status since 1993. Numerous courts have determined that aliens abandon their LPR status if they no longer qualify as a returning resident alien, where a returning resident alien
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."Singh, 113 F.3d at 1514 (9th Cir. 1997) (quoting Matter of Huang, 19 I. N. Dec. 749, 753 (1988)); see also Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003). Under this standard, a "temporary visit abroad" occurs either when a trip is for "a relatively short" period, fixed by some specific event, or when a trip will "terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time." Singh, 113 F.3d at 1514 (citing Chavez-Ramirez v. I.N.S., 792 F.2d 932, 936-37 (9th Cir. 1986)). Thus, courts determining abandonment must assess whether the actions and intentions of an alien with LPR status indicate that any time spent residing outside the U.S. was the result of a "temporary visit abroad." Aleem v. Perryman, 114 F.3d 672, 676 (7th Cir. 1997).
In support of the argument that he abandoned his LPR status, Mr. Yakou has submitted numerous affidavits from himself, family members, and friends documenting his repeated refusal to reside in the U.S. and his establishment of a home, business, and personal life in Iraq — all indicators of the fact that his time away from the U.S. is not a "temporary visit abroad." See Def.'s MTD Mot., Exs. A-F; Def.'s MTD Reply, Ex. A-D. In addition, Mr. Yakou has provided other exhibits to document his infrequent travel to the U.S., see Def.'s MTD Mot., Ex. A, Attach. 1 (copy of Mr. Yakou's United Kingdom passport), on trips that he claims were for family functions and of short duration, see Def.'s MTD Mot., Ex. A at ¶¶ 43-55; Def.'s MTD Reply, Ex. A at ¶¶ 8-12.
However, the Government argues that it can still charge Mr. Yakou as a "U.S. person" under the EACA's Brokering Amendment because he has not abandoned his LPR status — either factually or legally. The Government argues that under U.S. immigration law,
abandonment of [LPR] status . . . can only occur two ways: a) if an alien elects to file a form I-407 [with the Government], voluntarily forfeiting the status or b) after a final adjudication from the Immigration Court that [the Government] has demonstrated by clear, unequivocal, and convincing evidence at an administrative removal hearing that an alien has, in fact, abandoned the status.
Gov't's MTD Opp'n at 13. Thus, the Government asserts that Mr. Yakou has not abandoned his LPR status because it is undisputed that he has neither filed a form I-407 nor been subject to a final adjudication of abandonment by the Immigration Court.
In addition, the Government argues that some actions on the part of Mr. Yakou contradict his stated intention to abandon his U.S. LPR status following the 1993 FBI investigation. This contradictory evidence includes Mr. Yakou's application for and receipt of a replacement green card in 2001, see Gov't's MTD Opp'n, Ex. 4; his application for a U.S. social security card in 2001, see Gov't's MTD Opp'n, Ex. 3; his inquiry to U.S. immigrations officials regarding the process for getting another replacement green card when he entered the U.S. in 2002, see Gov't's MTD Opp'n at 23-24, Ex. 10; and his many assertions to persons in Iraq that he was a U.S. citizen, see Gov't's MTD Opp'n at 25-26, Exs. 11-14, and Burke Decl. at ¶¶ 7-8.
1. Voluntary Abandonment of LPR Status
The Government argues that abandonment of LPR status can occur in only two ways — through the alien's completion of a form I-407 or by a final immigration adjudication. However, the Court is not aware of any case holding that voluntary abandonment of LPR status requires completion of a form I-407. Cf. Castellani v. I.N.S., 1990 WL 171516 (E.D. Pa. 1990) (only case located by the Court which discusses the completion of a form I-407; involves an alien's challenge to the denial of a green card where he alleged he had completed form I-407 without understanding that such completion would equal abandonment of his LPR status). In addition, the Government's reliance on cases stating that aliens must be allowed to retain LPR status until a final determination of loss and issuance of a final deportation order are irrelevant to the determination of Mr. Yakou's LPR status because those cases involved challenges to the Government's assertion of abandonment, not challenges to the Government's refusal to acknowledge the voluntary abandonment. See, e.g., Etuk v. Slattery, 936 F.2d 1433 (2d Cir. 1991); Perez-Rodriguez v. I.N.S., 3 F.3d 1074 (7th Cir. 1993).
As Defendant notes, both the Board of Immigration Appeals ("BIA") and federal courts have either made or upheld the final determination of loss of LPR status based upon abandonment by finding that the LPR status had been lost "as soon as the alien no longer ha[d] a definite, fixed intent to return permanently to live in the United States." Def.'s MTD Reply at 3. For example, the BIA determined that an alien "already lost [her LPR status], because she abandoned it when she departed [the U.S.] . . . with no fixed intent to return." Matter of Montero, 14 I. N. Dec. 399, 401 (1973). Thus, the Court determines that in deciding whether the Government has established jurisdiction over Mr. Yakou, it may consider whether he voluntarily abandoned his LPR status prior to filing the Indictment in this case.
2. Sabri Yakou's Abandonment of His LPR Status
When determining abandonment of LPR status, courts have focused on the central issue, the alien's intent, by assessing "such factors as the alien's familial, financial, business and professional ties to the United States and foreign countries, as well as any relevant conduct while abroad." Aleem, 114 F.3d at 677. Accordingly, in support of his claim of abandonment of his LPR status, Mr. Yakou has presented evidence similar to that which has been found to support a determination of abandonment in immigration cases.
For example, abandonment of LPR status has been found to occur where an alien primarily lived in another country "while taking a few rather short trips to the United States." Moin, 335 F.3d at 420-21. Thus, Mr. Yakou asserts that since 1993, he has been continually absent from the U.S. for long periods of time, often for more than a year or two, and that any time spent in the U.S. was for very short duration — facts which appear to be supported by the Government's submissions regarding Mr. Yakou's border crossing history. See Gov't's Opp'n, Ex. 6. In addition, Mr. Yakou does not maintain a residence or a job in the United States, and court have found abandonment of LPR status when an alien "neither maintained his own residence, nor a job of any permanence" in the U.S. Singh, 113 F.3d at 1515. Moreover, even though Mr. Yakou's adult children and estranged wife live in the U.S., he argues that a finding of abandonment is appropriate given his infrequent contact with them and his establishment of a home, business ties, and a long-term relationship with a woman in Iraq. See id. at 1514-15 (considering "the alien's family, property, and business ties in the foreign country" when determining abandonment); Moin, 335 F.3d at 120 (upholding immigration judge's abandonment determination where alien resided with her family during short trips to the U.S. while maintaining a marriage and home abroad). Accordingly, the Court concludes that the totality of Mr. Yakou's statements and actions support a finding that he has abandoned his LPR status since 1993.
The Government argues that Mr. Yakou has not abandoned his LPR status by relying heavily on the fact that he has made repeated trips back to the U.S. since 1993, averaging about one a year.See Gov't's MTD Opp'n at 9-10 (noting that Mr. Yakou has entered the U.S. approximately 10 times since 1993), Ex. 6 (summary of Mr. Yakou's U.S. border crossing history). However, as noted earlier, courts have found that aliens can lose their LPR status based on abandonment if they primarily resided in another country but continued to make short trips to the United States. See Singh, 113 F.3d 1512 (upholding a determination of abandonment were Singh spent approximately 3-4 months in the U.S. and 8-9 months living with his family abroad each year);Matter of Kane, 15 I. N. Dec. 258 (1975) (finding abandonment when Kane lived and worked in Jamaica but came to the U.S. one month per year to preserve her status). Accordingly, the fact that Mr. Yakou made a number of trips to the U.S. since 1993 does not negate the fact that a vast majority of his time was spent residing outside of the United States and that he had established a home, life, and business in another country.
The Government also argues that Mr. Yakou has not abandoned his LPR status because during these trips to the U.S., he entered the country by relying on his alleged LPR status, in whole or in part, and without any further inspection from immigration officials regarding the validity of that status. See Gov't's MTD Opp'n at 9-10. However, courts have determined that the issue of LPR abandonment is based on the totality of an alien's intent and actions, not on immigration officials' prior acknowledgment of such status. For example, in a case in which an alien argued that her LPR status had not been abandoned because she had been granted re-entry into the U.S., the court stated that
the issue in this case is not how long it took the INS to realize that [she] never possessed the requisite intent to maintain her permanent resident status. Instead, the issue is the legitimacy of [her] original expression of intent to permanently reside in this country, viewed in the light of her subsequent conduct over several years.Moin, 335 F.3d at 421 n. 6. Thus, the fact that Mr. Yakou's alleged LPR status allowed him to re-enter the U.S. after 1993 is not determinative, in and of itself, of whether he abandoned such status.
As for the Government's presentation of facts regarding Mr. Yakou's more recent attempts to maintain his LPR status and his assertions to others that he was a U.S. citizen, Defendant correctly argues that these actions are irrelevant. Courts have repeatedly held that "[a]n alien's desire to retain his status as a permanent resident, without more, is not sufficient; his actions must support his professed intent." Singh, 113 F.3d at 1515. Courts have specifically held that applications for and/or receipt of official LPR documentation is not sufficient to maintain LPR status if the cumulative actions of the alien support a finding of abandonment. See Aleem, 286 F.3d at 679 (where aliens had repeatedly come back to the U.S. to obtain re-entry permits, the court found that they had abandoned their LPR status because the key issue was "not whether [they] sought to maintain their status, but whether they held a continuous, uninterrupted intention to return to the United States"). Accordingly, the fact that Mr. Yakou asserted that he was a U.S. citizen or applied for replacement LPR documentation does not negate the fact that he continued to live abroad and never professed an intent to return to reside in the United States.
In sum, given that the totality of the Mr. Yakou's actions and statements support a finding that he abandoned his LPR status after 1993, the Government has failed to establish by "clear, unequivocal, and convincing evidence" that he has maintained that status. Accordingly, the Court concludes that Mr. Yakou is not a "U.S. person" against whom EACA charges may brought.
While the Court's previous Opinion on the Motion to Dismiss might have given more weight to the Government's argument that Mr. Yakou was manipulating the immigration system for his own advantage by relying upon his alleged LPR status for travel and business purposes while professing a lack of LPR status to block his criminal prosecution, see MTD Mem. Op. 7-8 (outlining the Government's argument "that some actions on the part of Mr. Yakou contradict his stated intention to abandon his U.S. LPR status"), the Court must recognize and apply the appropriate jurisdictional standard. Regardless of any alleged inconsistencies in Defendant's actions, the Government cannot establish its jurisdictional burden of proof by pointing out those inconsistencies — it must prove that Mr. Yakou has maintained his LPR status.
C. The Court Lacks Jurisdiction Over Sabri Yakou as an Aider and Abettor Under the EACA's Brokering Amendment.
In opposing the Motion to Dismiss, the Government also asserted that even if the Court concluded that it could not establish jurisdiction over Mr. Yakou as a "U.S. person," jurisdiction over him was still proper as an aider and abettor to his son's alleged brokering activity. However, Defendant is correct that aiding and abetting a brokering act is, in and of itself, a principal activity covered by the Brokering Amendment, and thus, cannot be used as a separate ground for establishing jurisdiction over Mr. Yakou. See Def.'s MTD Reply at 21-23. The EACA defines "brokering activities" as the "taking of any . . . action that facilitates the manufacture, export, or import of a defense article or defense service." 22 U.S.C. § 2778(b) (1) (A) (ii) (II). Given that "facilitating" a brokering act is equivalent to "aiding and abetting" such an act, the Court concludes that aiding and abetting a brokering act would amount to violating the Brokering Amendment as a principal.
Thus, the Court cannot establish jurisdiction over Mr. Yakou as an aider and abettor having already concluded that jurisdiction cannot be established over him for violating the Brokering Amendment as a principal.
IV. Conclusion
The Motion for Reconsideration must be granted because the Court improperly placed the jurisdictional burden on Defendant in deciding the original Motion to Dismiss the Indictment. In placing that burden on the Government, the Court now concludes that the Government has failed to establish by "clear, unequivocal, and convincing" evidence that Mr. Yakou did not abandon his LPR status. Accordingly, Sabri Yakou is not a "U.S. person" against whom EACA charges may be brought and the Indictment against him must be dismissed. An Order will issue with this Opinion.
ORDER
The Government has brought criminal charges against Sabri Yakou, under the Brokering Amendment to the Arms Export Control Act, 22 U.S.C. § 2778(b) (1) (a), for his alleged participation in brokering a sale of six armored patrol boats to the Iraqi navy without first obtaining written approval from the Unites States State Department. This matter is currently before the Court on the Defendant Sabri Yakou's Motion for Reconsideration of the Court's denial of his Motion to Dismiss Indictment For Want of Jurisdiction. See, generally, Motion to Dismiss ("MTD") Order and Mem. Op. (entered 2/3/04). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, for the reasons in the accompanying Memorandum Opinion, it is herebyORDERED that Defendant Sabri Yakou's Motion for Reconsideration is granted; and it is further ORDERED that the Indictment as to Defendant Sabri Yakou is dismissed for want of jurisdiction.