Oct
24
Another Reason For Smugglers Not To Have A Facebook Page
Posted by Clif Burns at 8:12 pm on October 24, 2011
Category: Arms Export • Criminal Penalties
ABOVE: Anna Fermanova
Twenty-five year old Texas woman and Russian expat, Anna Fermanova, was sentenced to four months in federal prison and four months of home confinement after she pleaded guilty to having tried to export Russian night vision equipment, which she concealed inside pairs of Uggs in her luggage.
The defense argued that the sentencing guidelines, which in Fermanova’s case called for a sentence between 46 and 57 months, should not be applied on the basis, inter alia, that there was no harm to national security. The night vision, according to the defense, was destined for Fermanova’s father-in-law in Moscow who was Target Master at a private hunting club in Moscow. He intended to sell the night vision equipment to wealthy clients who would use the scopes to hunt wild game. The judge evidently accepted this argument.
Because the defendant is an attractive young blonde woman with a Facebook page on which she posted a number of her photos, this case quickly became catnip for the media which labelled Ms. Fermanova as the “sexy Russian spy” (or “sexy Russian smuggler”) and then rolled in the story as often as possible. Here’s my question, albeit mostly rhetorical: if a defendant in an export prosecution is an attractive young man, would the media call him a “sexy” spy?
Oct
17
Nice Work If You Can Get It
Posted by Clif Burns at 7:35 pm on October 17, 2011
Category: Arms Export • Criminal Penalties
If you are annoyed by co-workers who spend the day on eBay and still get paid, you may be even more annoyed to find out that the U.S. government actually pays federal agents on purpose to hang out on eBay and look for export violators. James Pendzich, who had only a junior college degree and no prior criminal history, was targeted by federal agents because his eBay page offered “worldwide” shipment of body armor. The ICE agents then set up a sting and had Pendzich ship protective inserts to undercover agents in Colombia.
Pendzich, of course, had little choice but to plead guilty to one count of violating the Arms Export Control Act (“AECA”). An article that appeared last week in the Knoxville News reported on the sentencing hearing at which the judge gave Pendzich a 46-month sentence for the illegal exports.
The applicable federal sentencing guideline for an AECA violation allows the judge to take into account national security considerations in determining the appropriate sentence. The defense argued that since the plates were shipped to federal agents there had been no adverse impact on national security. The prosecution reached deep into its bag of hypotheticals and argued:
Although not intended by the defendant, had he been successful, the bulletproof vests and body armor he attempted to export could possibly have ended up in the hands of narco-terrorists.
And if the plates had been made of highly-enriched uranium the narcos could have built and exploded a nuclear bomb. Unfortunately for Pendzich, the sentencing judge bought this coulda-shoulda-woulda line of argumentation and threw the book at him.
Oct
3
Supreme Court Refuses to Hear Roth Appeal
Posted by Clif Burns at 5:41 pm on October 3, 2011
Category: Criminal Penalties • ITAR • USML
ABOVE: Professor Reece Roth
The Supreme Court term began today — today being the first Monday in October — and it got right to work by denying the certiorari petition of Professor of Professor J. Reece Roth, a professor emeritus at the University of Tennessee who had been convicted of violating the Arms Export Control Act (“AECA”). The conviction was based on, among other things, Professor Roth permitting access by a foreign graduate student to technical data relating to an Air Force military drone project. In January of this year, the Sixth Circuit dismissed Professor Roth’s appeal, which makes this pretty much the end of the road for Professor Roth.
Roth’s petition for certiorari argued that the Sixth Circuit was incorrect in its finding that the wilfulness element necessary for a conviction under the Arms Export Control Act did not require a finding that Professor Roth knew that the technology in question was on the United States Munitions List. The Sixth Circuit instead held that the standard was satisfied if Professor Roth knew that his conduct was unlawful without regard to any specific knowledge he might have relating to the USML.
Roth’s petition for certiorari relied on the Eighth Circuit’s decision in United States v. Gregg, 829 F.2d 1430, 1437 & n.14 (8th Cir. 1987) which appeared to hold that a conviction required a finding that the defendant knew the exported item was on the USML. The United States government, in its brief opposing Professor Roth’s petition for certiorari, argued that the decision in the Gregg case, although it cited a jury instruction requiring that the defendant knew the export item was on the USML, did not hold that the conviction would have been reversed if the jury instruction had not referenced the USML and had simply required knowledge by the defendant that the conduct was unlawful.
Sep
13
Jail Time for Attempted Export of F-5 to Iran
Posted by Clif Burns at 6:24 pm on September 13, 2011
Category: Criminal Penalties
Marc Knapp, who was the subject of this earlier post and this second one, was sentenced to 46 months yesterday following his guilty plea on charges that he attempted to export an F-5 fighter jet and other defense articles to Iran. If you read those earlier posts, you will recall that Knapp and his attorney initially attempted to justify the attempted sale of the F-5 to Iran on the grounds that the jet, which was owned by a man who had been renting it out as a movie prop, would be shot down immediately by U.S. jets if Iran ever tried to deploy the aircraft. When Knapp’s attorney finally read the International Traffic in Arms Regulations and discovered that there was no defense provided for exports of outdated and less effective defense articles, Knapp decided to plead guilty.
After his guilty plea, Knapp was subject to a possible sentence of up to 30 years. The prosecution recommended a sentence of no more than 57 months, and the judge abided by that recommendation by sentencing Knapp to 46 months. The judge may well have been influenced to take 11 months off that recommendation by the defendant’s expression of remorse. Before sentencing, Knapp said that “he did not know at the time he was selling the items that it would be harmful to the U.S., but upon reflection in jail … he realized that it was detrimental to the U.S.” Although Knapp has been in jail since July 2010, he will only receive a credit of up to 150 days for time served.
Sep
7
New Export Charges Filed Against Sixing Liu
Posted by Clif Burns at 8:15 pm on September 7, 2011
Category: Criminal Penalties • DDTC
The Department of Justice announced today an expanded indictment of Sixing “Steve” Liu on additional charges that he violated the Arms Export Control Act through the unauthorized transfer of technical data relating to defense navigation systems. A previous indictment in April included one export count and two counts of making false statements to government agents. The new indictment covers eight counts of illegal exports, one count of transporting stolen goods, and two counts of false statements.
The charges arise from a secondary inspection of Liu by Customs and Border Patrol Protection agents at Newark Airport on November 29, 2010, as Liu was returning from the People’s Republic of China. Although Liu allegedly told agents he had been visiting family in China, inspection of his luggage revealed conference badges and other evidence that he had attended a technical conference in China during that trip. The inspection also revealed that his computer had various documents relating to defense navigation systems from the company where Liu worked as an engineer.
There is no evidence that Liu actually disclosed any of these documents during his trip to China. However, simply carrying the documents into China, even if they weren’t disclosed to anyone there, is considered an export of those documents.
The criminal complaint that preceded the April indictment hilariously mangles the definition of “export” in the International Traffic in Arms Regulations in order to make the case that Liu exported the technical data at issue:
The regulations promulgated pursuant to the Act, known as the International Traffic in Arms Regulations (hereinafter, “ITAR”) define exporting to include, among other things: “[s]ending or taking a defense article out of the United States in any manner . . . by a person whose personal knowledge includes technical data.”
Sharp-eyed readers and fellow ITARnauts will no doubt notice the odd omission of “except” where the ellipses appear. Here’s how that section actually reads in full with the deleted words emphasized:
Export means: (1) Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.
Oops. What is supposed to be a sensible exception to the definition of “export” is turned into a new requirement by this misquotation.
