McNabb in the News

Senior Principal Douglas McNabb was interviewed on the Spokane, Washington, CBS affiliate where he discussed the US extradition request from Ireland of Frederick Russell who fled from his vehicular homicide trial in Washington state 4 years ago.

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.

Global Identity Theft Ring—Tucson

A global web-based identity theft ring has been broken, with 17 indictments being handed down in Tucson, Arizona.^[1] Individuals in other countries allegedly supplied the Tucson residents with more than 4,500 credit- and debit-card numbers and other financial information which had been obtained illegally.^[2] The group also possessed other personal information such as Social Security numbers, addresses, passwords, and other data needed to make fake debit- and credit-cards.^[3]

The information was gathered by luring victims through e-mail or fake websites, and the individuals who were indicted were recruited using Internet chat rooms.^[4] They were charged with fraud in connection with identification documents, aggravated identity theft, fraud in connection with access devices, and conspiracy to commit money laundering.

Identification Documents Fraud
Under 18 U.S.C. § 1028(a)(7), it is a crime for a person to knowingly transfer, possess, or use—without lawful authority—a means of identification of another person with the intent to commit any unlawful activity that constitutes a violation of Federal law. The punishment for a violation of this section is a fine, imprisonment for up to 15 years, or both.^[5]

Aggravated Identity Theft
We have previously discussed aggravated identity theft here.

Access Devices Fraud
Under 18 U.S.C. § 1029(a)(1), it is a crime for a person to knowingly and with intent to defraud, produce, use, or traffic in one or more counterfeit access device. “Counterfeit access device” is defined as “any access device that is counterfeit, fictitious, altered, or forged.”^[6] An “access device” is any card, personal identification number, or other means of account access that can be used to initiate a transfer of funds.^[7] The punishment for a violation of this section is a fine, imprisonment for up to 10 years, or both.^[8]

Conspiracy to Commit Money Laundering
Under 18 U.S.C. § 1956(h), any person who conspires to commit money laundering can be punished as though he had actually committed money laundering. In this case, the defendants are being charged under 18 U.S.C. § 1956(a)(2)(A), which makes it a crime for a person to transport, transmit, or transfer funds from a place in the United States to a place outside the United States with the intent to promote the carrying on of specified unlawful activity. The unlawful activity in this case is identity theft.^[9] The punishment for a violation of this section is a fine of not more than $500,000 or twice the value of the funds—whichever is greater—imprisonment for up to 20 years, or both.

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[1] Laurie Laine, Global Web Fraud Case Has 17 Local Indictments, Arizona Daily Star, Nov. 8, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] 18 U.S.C. § 1028(b)(1).
[6] Id. § 1029(e)(2).
[7] Id. § 1029(e)(1).
[8] Id. § 1029(c)(1)(A)(i).
[9] Id. § 1956(c)(7)(A) (incorporating an offense found in 18 U.S.C. § 1961(1)).

Theft of Government Property—Nuclear Submarine Information

Two Chinese nationals are being held without bail on charges of stealing documents containing information on US Submarine technology and trying to smuggle them to China.^[1] Tai Wang Mak and his wife, Fuk Heung Li, were arrested on October 28, “after counterintelligence officers concluded that the couple planned to hand-carry to China” a CD encrypted with information on an “electric-drive propulsion system” for US submarines.^[2]

According to prosecutors, the disk, which allegedly was full of encrypted information, was found in Mrs. Li’s luggage, “along with women’s clothing and one man’s outfit.”^[3] Prosecutors also allege that they have recorded conversations in which the couple discussed how to transport the information.

Two other individuals, Chi Mak and his wife Rebecca Laiwah Chiu, have also been arrested, but it seems Chi Mak is cooperating with officials; Assistant US Attorney Deidre Z. Eliot said that he told the Naval Criminal Investigative Service that Tai Mak, Chi’s brother, is a member of the Chinese military.^[4] Chi is the lead engineer on the propulsion system, known as “Quiet Electric Drive.”^[5]

The four, however, have not been charged with espionage, and the word “classified” is not used to describe the information, but the FBI alleges that the defendants are “foreign intelligence agents who were collecting and copying a variety of important Navy technologies.”^[6] Furthermore, agents searched through Chi Mak’s garbage and allegedly found “a number of documents torn into pieces, including a list of military technologies being sought by China such as a space-based electromagnetic intercept system, aircraft carrier electronic systems, defense against nuclear attack technology, and data on the next-generation destroyer known as the DDX.”^[7]

The four have been indicted on charges of stealing government property, transportation of stolen goods, and conspiracy.^[8]

Stealing Government Property
Under 18 U.S.C. § 641, it is a crime for a person to steal any thing of value from the United States or any department or agency of the United States. Violating section 641 can be punished by a fine, imprisonment for up to 10 years, or both.

Transportation of Stolen Goods
Under 18 U.S.C. § 2314, it is a crime for a person to transport any goods in interstate or foreign commerce, knowing that the goods have been stolen. The punishment for violating this section is a fine, imprisonment for up to 10 years, or both.

Conspiracy
Under 18 U.S.C. § 371, any person who, with at least one other person, conspires to commit an offense against the United States, or to defraud the United States, and who commits an overt act in furtherance of the conspiracy, can be fined, imprisoned for up to 5 years, or both.

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[1] Greg Krikorian, Couple Denied Bail in Spy Investigation, L.A. Times, Nov. 8, 2005, available here.
[2] Id.
[3] Gillian Flaccus, Two Held in Navy Technology Scheme, Associated Press, Nov. 8, 2005, available here.
[4] Krikorian, supra note 1.
[5] Four are Charged With Stealing Military Secrets, Wash. Post, Nov. 5, 2005, available here.
[6] Krikorian, supra note 1.
[7] Id.
[8] U.S. Charges 4 China Spy Suspects, CNN.com, Nov. 5, 2005, available here.

Piracy at Sea—Somalia Update

The Somali coastline is becoming more and more dangerous for vessels that approach that increasingly lawless country. Over the weekend, it was reported that a Seabourn Cruise Line luxury cruise ship was attacked 100 miles off the coast by two 25-foot inflatable boats filled with pirates wielding machine guns and grenade launchers.^[1] At least three rocket-propelled grenades hit the ship, injuring one crew-member; none of the passengers, who had been moved to a lounge for their safety, were hurt.^[2] The vessel, dubbed “Spirit,” was able to elude the pirates by taking evasive maneuvers and outrunning the smaller boats.^[3] The Spirit was bound for Mombasa, Kenya, on the tail end of a cruise originating out of Alexandria, Egypt; it should reach the Seychelles today, and continue on to Singapore.^[4] Americans comprised most of the liner’s passengers, but a fair number of Australians and Europeans were also on board.^[5] Bruce Good, spokesman for the cruise line, suspects that he motivation was theft.^[6]

Based on the location of the attacks, it is believed that this is the same band of pirates who attacked and commandeered an UN-chartered aid ship earlier this year, which we discussed here.^[7] While US and NATO warships patrol the deeper waters off Somalia’s coastline, they cannot go within that country’s territorial waters; nonetheless, this most recent attack, 100 miles off the coastline, shows how audacious the pirates are becoming.^[8] With the increase in attacks this year—more than 25 have occurred so far, compared to just 2 last year—officials are beginning to better understand how the pirates operate.^[9]

It is believed that the pirates identify targets by monitoring international radio channels, and “[s]ometimes they trick the mariners by pretending that they have a problem and they should come to assist them—they send bogus distress signals,” said the head of the Kenyan chapter of the Seafarers Assistance Program, Andrew Mwangura.^[10]

The statutes that cover this recent attack are 18 U.S.C. §§ 1651 & 1659.

Under 18 U.S.C. § 1651, whoever commits the crime of piracy, as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Under 18 U.S.C. § 1659, whoever, upon the high seas or other waters within the admiralty and maritime jurisdiction of the United States, maliciously attacks or sets upon any vessel belonging to another, intending to plunder the vessel or take any of the money or goods on board, can be fined, imprisoned not more than 10 years or both.

Piracy is one of the handful of crimes for which Universal Jurisdiction is available.^[11]

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[1] Rodrique Ngowi, Pirates Attack Luxury Liner off Somali Coast, Houston Chronicle, Nov. 6, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Rodrique Ngowi, Somali Pirates Getting Bolder, Houston Chronicle, Nov. 7, 2005, available here.
[8] Id.
[9] Id.
[10] Id.
[11] Restatement (Third) Foreign Relations Law of the United States § 404 (1987); see also, McNabb Associates, United States Jurisdiction, TransnationalCrimes.com (2005), available here.