Trafficking in Weapons—MANPADS

Chao Tung Wu and Yi Qing Chen have been indicted for conspiring to smuggle surface-to-air missiles [hereinafter SAMs] for use abroad.^[1] The two men, who are naturalized citizens, were arrested in August as part of Operation “Smoking Dragon,”^[2] which initially only covered trafficking in methamphetamine, ecstasy, and counterfeit Marlboro cigarettes.^[3]

However, federal prosecutors secured a new indictment against the two men which accused them of brokering the sale of 200 Chinese-made QW-2 missiles to an undercover FBI agent.^[4] The QW-2 is a shoulder-mounted heat-seeking SAM with a range of just under four miles, and it is similar to the United States’ Stinger missile.^[5] While there has been considerable concern in the US about the possibility of such SAMs being used domestically against commercial aircraft, it seems that the two men believed the weapons would be deployed in other countries.^[6]

The two men were indicted under a new law passed in 2004 which increases the penalty for people found guilty of importing missile systems designed to destroy aircraft.^[7] This law is called the Commercial Aviation MANPADS Defense Act of 2004 [hereinafter MANPADS Act],^[8] and it was part of the Intelligence Reform and Terrorism Prevention Act of 2004.^[9] MANPADS stands for man-portable air defense system, and it refers to any SAM system designed to be man-portable and carried and fired by a single individual.^[10] Under the MANPADS Act, the United States sentencing guidelines were amended to enhance any sentence by 15 levels if the offense involved “a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile.”^[11] Furthermore, because Mr. Wu and Mr. Chen are accused of trying to smuggle more than 200 QW-2s, their sentence will be enhanced by an additional 10 levels.^[12] The base level for sentencing purposes when the offense involves a destructive device is 18.^[13] Thus, the two men, with a combined offense level of 43, are looking at life imprisonment.^[14]

The two individuals, who are being held without bond, are expected to be formally arraigned on the smuggling charges on Monday.^[15]

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[1] David Rosenzweig et al., 2 Indicted in Plot to Sell Missiles, LA Times, Nov. 10, 2005, available here.
[2] See Peter Bowes, US Lays Missile Smuggling Charges, BBC News, Nov. 10, 2005, available here; see also, our posting in August about Operation Smoking Dragon, here.
[3] Rosenzweig, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] P.L. 108-458, Title IV, Subtitle B, § 4026, 118 Stat. 3724. (PDF)
[9] P.L. 108-458, 118 Stat. 3638.
[10] MANPADS Act, § 4026(e)(2)(A).
[11] See U.S. Sentencing Guidelines Manual § 2K2.1(b)(3)(A), available here.
[12] Id. § 2K2.1(b)(1)(E).
[13] Id. § 2K2.1(a)(5) (the offense involves a destructive device as described in 26 U.S.C. § 5845(a)).
[14] See id., ch.5 pt. A, available here.
[15] Rosenzweig, supra note 1.