Jun

19

Acquittal Possibly Based on DoD’s Failure to Mark Exported Documents

Posted by at 12:25 pm on June 19, 2008
Category: General

Blackhawk HelicopterAlexander Latifi, who was acquitted last February on criminal export charges, has been busy seeking vindication, including seeking an award of attorneys’ fees under the Hyde Amendment. In a motion filed on June 12, 2008, we get a better idea of some of the defense arguments that the court may have relied upon in acquitting Latifi.

We have previously speculated that the availability on the Internet of the bifilar weight assembly drawing that was exported was a significant factor, although DDTC has continued to maintain the absurd position that drawings and photographs on the Internet might not be “public domain” material. Additionally, Latifi’s Hyde Amendment motion argues that the drawing, which was provided to Latifi by Redstone Arsenal as part of the bid solicitation, did not bear the legends required by Department of Defense Directive 5230.24. That directive provides, at paragraph E3.1.1.8, as follows:

All technical documents that are determined to contain export-controlled technical data shall be marked “WARNING – This document contains technical data whose export is restricted by the Arms Export Control Act (Title 22, U.S.C., Sec 2751, et. seq.) or the Export Administration Act of 1979, as amended, Title 50, U.S.C., App. 2401 et. seq. Violations of these export laws are subject to severe criminal penalties. Disseminate in accordance with provisions of DoD Directive 5230.25.”

Failure by the U.S. government to comply with this labeling requirement is not in itself a defense to a prosecution for a violation of the Arms Export Control Act and the International Traffic in Arms Regulations. But it could be relevant to the scienter requirement if the defendant did not otherwise know that the data or drawing contained technical data. Because of the scienter requirement for AECA and ITAR prosecutions, the government must prove that the defendant knew that the export was unlawful. But if there was other evidence that the defendant knew the export of the drawings was illegal, the failure of the DoD to abide by its own labeling regulations wouldn’t be relevant.

[Hat tip to David Brady who sent me a copy of Latifi’s Hyde Amendment motion]

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Copyright © 2008 Clif Burns. All Rights Reserved.
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One Comment:

The argument I get from exporters regarding internet resources is that all internet based information is public domain because they can go to their public library, sign up to use a library computer, and access the information (via the internet). In otherwords, they got the information at the public library. They point out that 120.11(4) merely states that public domain information which is generally accessible to the public “at libraries open to the public or form which the public an obtain documents”. The regulation does not require that the document be “in” the library.
DDTC still doesn’t agree.

Comment by Kndl on June 19th, 2008 @ 12:41 pm