Jan
10
Twenty IED Jammers in a Jam
Posted by Clif Burns at 9:02 pm on January 10, 2012
Category: Criminal Penalties • DDTC
Law students always chuckle at forfeiture cases because they have the best names, such as United States v. 3,462 Cans of Tuna Fish or the like. It always seemed so unfair to those cans of tuna to have the entire juridical apparatus and force of the United States arrayed against them. Poor cans!
So I’m hoping that readers will be equally amused by an export law forfeiture case that is titled United States v. Twenty Miljam 350 IED Jammers and that was recently decided by the Second Circuit Court of Appeals. The twenty jammers at issue were manufactured by an Israeli company called Wireless Avionics. They were seized by Immigration and Customs Enforcement during a criminal proceeding against the CEO of the company for attempting to export these items without a license from the Directorate of Defense Trade Controls. They had been manufactured for sale to NATO, but DDTC had denied an export license claiming that the devices would interfere with radios used by U.S. forces in Afghanistan. The CEO then tried to disassemble them and export them from the U.S. for reassembly and sale elsewhere, which led to the seizure of the jammers, his arrest and a criminal indictment.
Now comes the odd part. For reasons not clearly explained by the Second Circuit opinion, the U.S. dropped all criminal charges provided that the CEO agreed to waive any future claims against the U.S. and the ICE agents for false arrest and to waive any objection to the forfeiture of the devices. The CEO, however, contested the forfeiture claiming that he was forced to sign the release under duress, the duress apparently being the threat of criminal prosecution. He also argued that the items were not on the United States Munitions List and did not require an export license. The Second Circuit dismissed the duress claim in large part based on a letter that the CEO sent after signing the waiver in which he said he had signed it voluntarily. And although the court notes that items on the USML require a license, it does not discuss whether these items were on the USML or not.
The Wireless Avionics website asserts that these devices are covered by “ECCN class 5.A.1.h,” presumably a reference to ECCN 5A001.h. That ECCN has a somewhat cryptic note that says “See also . . . Category XI of the International Traffic in Arms Regulations.” It would seem that whether an IED jammer fits under ECCN 5A001.h or Category XI of the ITAR would depend on whether it was specifically designed, modified or configured for military application.
Here the fact that the products were destined for NATO and were called — of all things — by the model name “Miljam” both suggest the items might well be Category XI. But then it’s hard to understand why the government folded like cheap lawn chairs and tried to get a promise that no one would get sued for false arrest. It also doesn’t help the Wireless Avionics case here that it applied for a license from DDTC which was denied. On the other hand, there is nothing to indicate that these jammers had been ruggedized, shielded or otherwise specifically adapted for military vehicles.
Because all we can do is speculate about the Government’s action here, speculation is welcomed in the comments section.
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Copyright © 2012 Clif Burns. All Rights Reserved.
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13 Comments:
The U.S. Gov’t? They threatened the CEO? Allegedly after they screwed up, and then got nervous this guy was going to sue their pants off, and make a public embarrassment out of ’em? Naa. I just find that hard to believe — The US Government would, nor has NEVER done such a thing. Never 😉
As Mike wrote, the US government will never use its leverage unfairly, especially against foreigners stranded for months and spending fortune on defense attornies. These jammers were not USML for sure. If they were, the guy would still be enjoying free hamburgers and hotdogs in a “correctional” facility lodging. IED jammers are 99.99% not USML. The only ones that are USML are the 5-6 SECRET ones used by the US military itself, and this jammer is apparently not between them. Summary – the government climbed on a tall tree and couldn’t get down without the second circuit saving their a..es . If I was him, I would still sue the ..bs . It was HIS product, and he had a right to take it apart and back home.
Well, even by his own admission these items are on the CCL and would need a license which it appears he didn’t have. Of course, the government had charged him under what was probably the wrong statute if they were CCL and not USML items.
No, Mr Burns. You are NOT reading the documents you received in full and rush to conclusions exactly like your government’s law enforcement people . He intended to take the jammers APART and use only their benign parts that do not need any export license except a routine Shippers Export Declaration at shipping, leaving the big boxes and panels in the US. Its perfectly legal to do so, and him, as the designer and manufacturer, certainly understood and was authorized to decide which parts are restricted and which ones are OK. He did not plan to get an export license from the DDTC, but this doesn’t make him a criminal, especially that he had a DDTC authorization for exporting his own stuff back to Israel. The ICE were duped by a greedy liar informer that wanted him out of the way in a big lawsuit on the unpaid jammers against EMW.
You obviously have more information on this case, Andrew, than was stated in the 2nd Circuit opinion, which is all that I looked at. That is not to say that I doubt you here as it appears that you may have some relationship to the company or the former defendant based on the IP address from which you are commenting and that this is the source of your information. I’m not jumping to any conclusions because the whole point of my post was that it wasn’t clear what was going on in this case.
He had all the means and knowledge to build NEW identical jammers in Israel. All he wanted is to save some money on parts he buys in the US regularly, by salvaging these parts from the NATO surplus jammers. Its hundreds of thousands of dollars in parts, simple parts. He has a factory in Israel that makes these units, so why the hell would he SMUGGLE the very same jammers he can easilly make at home ? The arrest and criminal complaint were total rubbish, originating from spite and greed of a vicious ex partner, who duped the ignorant ICE people that didn’t even know what’s the difference between CCL and USML.
The government would never have dismissed the criminal complaint if he was even marginally guilty of ANYTHING. They put innocent people in jail, so why release a guilty one ?
Its the most bizzare defense export complaint against a manufacturer that just takes his stuff back home, the same way it came into the country, in parts, in bulk, and he also had a TAA paper from the DDTC that allows it. After the heartbreaking disappointment from the export denial to NATO, he was fed up of all these idiots and just wanted his parts back, without waiting for any pencil pusher, so he decided to take the units apart and ship the more standard and worthy parts back home, not as jammers. It might seem economocally stupid and irrational, but that was his only way to get it over with legally and quickly. The DDTC and BIS would probably again put a hand on it to get him fucked if he applied for an export license of whole jammers. He just made his life easier in the most legal way possible, that only he could think of and execute efficiently, as the designer of the systems.
Thank you for posting this story. We learn a lot from these real-world situations and this blog is a great benefit for us. It is also very helpful to learn about the “rest of the story” or slight changes that could have resulted in different outcomes. I hope this works out as well as it can for the innocent.
A small snippet from Wireless Avionics web page describing the MilJam 350. (http://www.wireless-avionics.com/apage/13469.php)
“APPLICATIONS:
– Convoy protection
– Anti-terror squads
– Police EOD units
– First responders
**More information and technical data is available to authorized agencies and government organizations only.”
So, let’s see;
DDTC license applied for: check
Mil-Spec sounding name: check
Military customer (NATO): check
Advertised military applications: check
Additional information: limited to authorized agencies/government organizations.
Admittedly, some of these points can be argued to have a different interpretation. However the ‘totality of circumstance’ argues for these being covered goods.
Not to diminish from the more academic aspects of this discussion, I just can’t resist any longer. Hence:
http://www.dusktildawnentertainment.com/media/Bob_Marley_-_Jammin.mp3
To Scott : Every IED jammer in the civilian market is listed for the same applications you listed and has the same restrictions on datasheets, but not because its USML, but because of the sensitive issue of the specs. I suggest you read my previous comments on this blog. NATO is indeed a military customer but this doesn’t make it USML automatically. The US was sovereign to deny the export to NATO ( which is NOT compliant with the NATO treaty they signed on ), but from that point onwards it spiralled out of control into a false arrest and bogus forfeiture following a forced stipulation agreement on a stranded innocent man. The government crossed the fat red line big time in several points.
Curioser and curiouser. The PACER site for the SDNY shows a criminal case against Alon Wallach, but there are no documents.
Mr. Andrew’s assertion that Mr. Wallach had a “right” to export the components originally made by his company just doesn’t bear out. From the Second’s description of the facts on the forfeiture case, it appears that the components were sold by his company, not him, to the New Jersey Company, which was an ICE snitch, that they were permanently imported for consumption, and then incorporated in a new product. Mr. Wallach would have had no property interest in them unless there was a warranty as to their suitability for a particular use, in which case it would be only a reversionary interest. But that’s a business risk, and he had no “right” to make a profit or even recoup a loss that came from the risk that he assumed. The Second’s decision suggests that it was Wallach who then persuaded the NJ snitch to either sell or give them to him so he could dispose of them OCONUS.
That doesn’t sound like it fits any exemption that would entitle him to re-export either the jammers or the components. As a foreign person, he can’t be registered, and therefore can’t apply for an ITAR license, and would have to have a US agent to do so. If the jammers or the components his company supplier also jammed US or NATO comm equipment, I can understand why DDTC/DTSA would never grant a license, and thus, the reason for the Israeli person to attempt to circumvent the licensing rules.
The more vexing question is why Mr. Wallach got off with a non-pros and redaction of the public record for actions which would have gotten a US citizen a one way ticket to the federal prison camp at Leavenworth and a heap of bad publicity. I reckon Mr. Wallach just ought to be glad to be gone.
To Hillbilly : As an hillbilly, you seem to be very much into the ITAR and law business. Yes, you are right about Wallach’s criminal case documents redacted. It was the government’s initiative and way to cover up the shame that went there for them. However, you are dead wrong on Wallach’s right about the jammers. FYI, Wallach didn’t sell the jammers to the snitch, but rather gave it as part of the project. Then there was a lawsuit in which Wallach settled for 20 jammers. However, Wallach held a DDTC approval in the form of a TAA between his Israeli company and a US company that proves that the jammer was his design and property, that he has a right to deal with it on US soil, and even to export it or its parts back to Israel or elsewhere. You can see this TAA document AND MUCH MORE as part of his appeal brief in the PACER records. Its 90 pages but they would charge you only on 30, so it amounts to less than 5$ if you are really curious. Alternatively just wait until Mr Burns uncovers the entire story in the coming days.
