In an unpublished opinion, the United States Court of Appeals for the Eleventh Circuit upheld yesterday the conviction of Joseph Pinquet for violations of the Arms Export Control Act and the International Emergency Economic Powers Act in connection with exports of defense articles and dual use goods to China without the required export licenses. In his appeal, Pinquet argued that there was insufficient evidence that one of the exported items was properly classified as an item on the United States Munitions List (“USML”). He also argued that the jury instructions did not properly state the wilfulness requirement for a conviction under the Arms Export Control Act.

As to the first argument, it appears that the government didn’t trot out, as it often does, the spurious old saw that the Department of State certificate presented at trial, certifying that the item was a USML item, is immune from judicial review. Perhaps the Seventh Circuit’s decision in the Pulungan case has dissuaded the government from continuing to employ the star chamber logic that would permit criminal convictions based on administrative fiat. The Eleventh Circuit noted that, in addition to the legendary certificate (signed by Hillary Clinton herself, no less!), there was testimony of an engineer from Northrop Grumman, which manufactured the item, that the items was designed for military use and had no civilian applications. The Court of Appeals also relied on evidence that sales documentation for the item indicated that item was controlled under the International Traffic in Arms Regulations and required a license for export.

As to the second argument, the Eleventh Circuit stated the wilfulness requirement under the AECA as this: “a voluntary, intentional violation of a known legal duty,” and not “innocent or negligent errors.” The district court’s instruction went one step further and required that the government, in order to convict, had to prove that Pinquet “”knew, from whatever source, that a license was required.” Pinquet attacked the instructions on the ground that another instruction given by the district court, namely that there was no need to prove that Pinquet was aware of or had read the Arms Export Control Act, made the instruction confusing. The court held that the instructions, taken as a whole, were not confusing.

The court’s decision here seems to gloss over the difference between its own looser scienter standard and the stricter standard used by the district court. The appeals court states that only a general, non-specific knowledge of illegality needed to be shown whereas the district court instruction required a showing that the defendant need to know that an export license was required. This distinction can be crucial in instances where the defendant’s belief that a transaction is illegal is based on a misunderstanding of the applicable law.

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