Nov
30
Defense Counsel Mistakes Blamed for Guilty Plea in Export Case
Posted by Clif Burns at 11:07 pm on November 30, 2010
Category: Arms Export • Criminal Penalties • DDTC
ABOVE: D&R Sports Center
Mark Komoroski, owner of D&R Sports Center in Nanticoke, Pennsylvania, pleaded guilty in August 2009 to illegally exporting rifle scopes and other optics to Russia. He was sentenced to 32 months in jail and ordered to pay a $10,000 fine.
Earlier this month Komoroski filed a motion to vacate the sentence arguing ineffective assistance of counsel. According to that motion, his attorneys never advised him that, following the logic of the Seventh Circuit’s decision in United States v. Pulungan, he could only be convicted of the export offense if he knew that the export of the rifle scopes and optics required a license. Komoroski claims that had he known that he would have applied for licenses. He further alleges that he would not have pleaded guilty if he knew that this knowledge was a requirement for conviction.
Setting aside a guilty plea is usually quite difficult. First, in the plea hearing, if conducted correctly, the defendant will be asked to state in open court and under oath that he knew that the export was illegal. That makes it difficult for the defendant to say later that he didn’t know his actions violated the law without setting up the classic question as to whether the defendant was lying in open court or in the motion to set aside the guilty plea. But there is no transcript of the guilty plea available in the docket for the case, so it’s impossible to say whether this is a problem here or not.
Another issue is whether other evidence would permit an inference that the defendant knew the export was illegal. Usually this evidence is readily satisfied by export declarations that provide a false description of the item being exported. Most of the docket here is sealed, apparently because Komoroski’s Russian co-defendant is alleged to be connected in some fashion to notorious Russian arms dealer Viktor Bout. But one contemporary news report suggests that Komoroski’s shipping declarations described the items accurately.
Finally, although not mentioned in Komoroski’s motion, the presiding judge said something more than a little troubling in the sentencing hearing:
It’s a pretty clear case for a prosecutor in a case such as this to recognize, as everybody in this room recognizes, that the conduct is prohibited, there’s a reason the law was passed and the defendant himself — why he didn’t appreciate why that law prevented him from doing what he did and why he allowed himself to be persuaded to do what he did and in effect destroyed his life, affected the life of his family and affected the life supporting business.
(Emphasis added.)
The judge here seems to be admitting that Komoroski didn’t understand that his actions violated the law. If that’s true, Komoroski shouldn’t be sitting in a federal prison cell. But Komoroski is representing himself pro se, his own lawyers having told the press that they thought that the 32-month sentence was fair.
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11 Comments:
The judge’s comment do not indicate Komoroski didn’t understand that his actions violated the law. They indicate that the judge believed Komoroski did not understand the reason behind the law (the purpose of export controls), and not the law itself.
@Josh: That’s one interpretation of what the judge said. But his use of “why” isn’t necessarily a reference to the purpose of the law; it can also be a reference to why Komoroski didn’t interpret the law as prohibiting the conduct. I think mine is better because (1) the judge starts out talking about whether people knew the conduct was prohibited and (2) it’s farfetched to think that Komoroski knew the conduct was illegal but did it anyway because he didn’t know the philosophy behind export controls.
What about United States v. Wu, No. 08-10386, 2009 U.S. Dist. LEXIS 108723, at *12-14 (D. Mass. Nov. 20, 2009)
I assume you’re referring to the magistrate’s decision on a document production request that can be found here: https://ecf.mad.uscourts.gov/doc1/09513429676(Pacer account required).
The magistrate declined to adopt what he called dicta in Pulungan that the defendant needs to know that an item is on a control list in addition to knowing that the export required a license. But the magistrate agreed that the defendant did need to know that a license was required and here Komoroski says he didn’t know that.
Mr. Komoroski is going to have a difficult time making that assertion in light of his constant statements to the press after the initial searches that he had “all the licenses” necessary for his exports. Not sure how he’s also going to explain that in shipments that were checked by ICE he likewise omitted those exact items from shipping manifests that were supposed to list ALL items in the package. If his understanding was that they were legal to export, why were those items buried inside of clothing and not listed on the export papers? Prosecution will have no problem painting a picture of willful intent and he knows it, Mr. Komoroski is simply buying time and wasting taxpayer money. That anyone in the firearms and accessories export business as long as Mr. Komoroski would be unaware of the controls placed on these items is almost patently absurd.
If, as Sergei says, there is evidence that Komoroski filed false shipping declarations that concealed the export of the USML items, then he has very little chance of overturning the plea on the grounds that he didn’t know he needed a license. With most of the documents in the case having been sealed, I wasn’t able to see if there was such evidence.
In the initial press releases after both D&R locations were raided, ICE representatives stated that export packages had been opened and undeclared items were located.
http://www.sunjournal.com/node/100285
As you may guess, my name isn’t Sergei. I actually personally know Mr. Komoroski and know people who worked for him and his brother. I have serious doubts that he can make this appeal fly, by what I am privy to the prosecutors went easy on him considering the full extent of what he was engaged in.
Sergie: Anyone who believes everything in an ICE press release probably believes the government is just here to help us.
Clif: As you may recall from the Sherman case in Knoxville, a companion case to the Roth case, at his plea hearing Mr. Sherman stated that he didn’t understand that a license was required, yet the trial judge accepted the plea. Trial judges tend to be intimidated by these cases by the Department of [in]Justice’s allegations of harm to national security and foreign policy. Plus, the way that DoJ habitually restates the statute in indictments in order to misrepresent the scienter element leads to confusion. As any one who has ever been to a gun show knows, the Russians make quite nice scopes and optics. Many a coon hunter in these hills uses Russian night vision goggles to good effect. Plus, not all scopes are ITAR, some are EAR. I’ve known a lot of small federal firearms dealers and few understand either ITAR or EAR. Some of the biggest sporting goods chain stores were fined by BIS a few years ago for scope and sights exports so its not at all inconceivable that this gentleman didn’t understand.
This is just another case of ICE and DoJ plumping up their body count by going after the little guys they consider to be “low hanging fruit”.
“Knowledge” as an element of an offense used to mean that the defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake or accident. Most of the time, knowledge was proved by a defendant’s conduct, and by all the facts and circumstances surrounding the case. Trial judges often instruct that a jury may infer knowledge from a combination of suspicion and indifference to the truth, and that if the jury finds a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear of what he would learn, the jury could conclude that he acted knowingly. Along with this type of instruction came a caveat that the jury could not conclude a defendant had knowledge if he was merely negligent in not discovering the truth.
I would like someone to answer one question!!! Why can the manufacturer of these contolled items NOT be required to inform the small business owner of the governments export control laws??? I am Lecia Komoroski, the wife of Mark Komoroski for 20+ years. Why does all the responsibility lie on the little guy. I have not responded to any blog in 4+ years, but I am compelled at this point due to the gross injustice that my entire family has endured over the years. Mr. Sergie, the only taxpayer money wasted here was due to the government, for I believe is who you work for. You have only had privy to their side of lies, if you were any personal friends of ours, you would know the truth. Mr. Cliff, I would love to speak with you one day, you are the only one to have a handle on all of this, except for Hillbilly who is dead on. “GOD BLESS EVERY HARD WORKING MIDDLE CLASS AMERICAN FAMILY” I would love to engage in question and answer or someone who is willing to help us, and I am not talking about another “plea bargain attorney”. Someone who knows the export laws!!
Well, here we go with our US goverment…sat in on the co-defendents plea hearing…guideline sentence is set at 15 to 21 months, with no deportation. AMAZING!. 1 count of ciminal conspiracy, same as Mark Komoroski. I will listen to anyone’s comments.
