In my view, if people do not truly act with the knowledge and intent equalling “evil intent” to violate the law, they should not be charged with a criminal offense – because if they don’t so act, they didn’t commit a crime. Investigators and prosecutors should be devoted to finding the truth of a matter – to include when appropriate that folks did not act with the requisite knowledge and intent (or, to put it another way, to prove they did not in fact commit a criminal offense, and even that no offense at all was committed).

I used to shake my head at investigators who would complain that licensing officers had “undermined” their cases when they determined that no license was required (i.e., classification turned out to be EAR99, etc.) for the transaction in question. My explanation that that meant in fact that no offense had been committed, usually fell on deaf ears.

Unfortunately, that’s a minority view in federal law enforcement. Too many prosecutors and investigators see their job as proving that an offense has occurred, not with getting to the truth of whether or not that’s actually the case. Statistics are based, and careers and empires are built, on successful prosecutions, not on proving that people were innocent or that the law hasn’t bee violated.

As you note, there exist sufficient remedies – BIS’s strict liability infractions among them – to address cases where exports were made contrary to law or regulation, but the actors did not know what they were doing was a violation or intend to evade requirements. But again, prosecutors and investigators as a rule don’t build careers on civil, strict liability cases – they’re out to make the next big criminal case.

And of course BIS still doesn’t tell us how they draw meaningful distinctions, in deciding what penalties to impose, between strict liability vs. “knowing” offenses. I’m an advocate of imposition of a statutory framework for those distinctions, similar to the distinctions between penalties for negligence, gross negligence and fraud found in the customs import penalty statute, 19 USC 1592. That’s another minority view in the federal export law enforcement community – but one I think would bring principles of equity to the administrative penalties assessed for export infractions.

Of course, in the Iishiba case the defendant has chosen to enter into a plea agreement admitting the required knowledge and intent. Let’s hope that he understands what he is admitting to, and/or that he has competent counsel to ensure he doesn’t plead guilty to an offense he did not have the knowledge/intent to commit.

In my experience, the decision-making process of what violation to actually charge varies between US Attorney’s offices. To one degree or another, the investigating agency has some say with the Assistant US Attorney purusing the case as to what violations will be charged, particularly in negotiated plea agreement scenarios.

In the case of 554/555, Customs (now ICE) had been trying for years to get this statute enacted – I was involved in such efforts while at Customs over 10 years ago. Now that they’ve got it on the books, they want to use it. Depending on the relationship between ICE and the USAO in Seattle (which in years past was pretty good), and the level of ICE’s involvement in this case, the explanation of why 554/555 was used versus the AECA could be so simple as ICE’s desire to see 554/555 used in a case – particularly one of the first cases of its application.

That said, yes, there is some feeling within ICE that 554/555 requires a lower standard of knowledge than does the AECA. But given what the plea agreement has to say on the knowledge point, it may be as simple as ICE’s desire to see the new statute used (albeit indirectly as the underlying violation to the conspiracy count).

I follow export prosecutions fairly closely and I’m not so sure I would say that § 555 is favorite yet.

I think the statute you have in mind is actually 18 USC 554 rather than 555 and it appears to be a favorite of the U.S. Attorney’s Office for any exports, even those not so sensitive.

Regards,

Su