Aug
27
More Revelations in Roth Trial
Posted by Clif Burns at 8:45 pm on August 27, 2008
Category: General
According to this report from the website of the Knoxville News Sentinel, the trial of Professor J. Reece Roth for violation of the Arms Export Control Act continued today with the testimony of Daniel Max Sherman, the only officer of Atmospheric Glow Technologies (“AGT”) to be indicted in the matter. AGT was the company that contracted Professor Roth to work on the military UAV contract during the course of which it is alleged that Professor Roth disclosed controlled technical data on the project to a Chinese graduate student. Sherman previously pleaded guilty to export violations in connection with his involvement in the project and, it would appear, there is no love lost between Sherman and Professor Roth or between Sherman and his former employer.
According to Sherman, the proverbial [insert expletive here] hit the fan when Roth went to AGT and indicated that, in addition to the Chinese grad student already working on the project, he wanted an Iranian graduate student to the work on the project. [Are there no competent U.S. grad students at the University of Tennessee?] AGT, although happy to export controlled technical data about military technology to a national of China, a country subject to a U.S. arms embargo, had a sudden crise de conscience and decided to draw the line at a national of Iran.
AGT’s refusal prompted Roth to do something that I’ll bet he now sincerely regrets. He marched off to Robin Witherspoon’s office, who was UT’s Export Control Officer, and, according to Sherman, asked her to get a license for the Iranian grad student to work on the project. During the course of this discussion he revealed that a Chinese grad student was already working on the project. From there things went rapidly downhill, to say the least. Witherspoon, according to the government’s pre-trial brief, told him that one couldn’t get a licenses for either Iran or China, and that the participation of the Chinese grad student was illegal.
Witherspoon also informed AGT that the participation of the Chinese grad student was illegal. According to Sherman, AGT went into damage-control mode and feigned ignorance that any foreign nationals were working on the project. They were shocked, shocked, as they say, to find out that export violations were going on. Sherman testified that, in fact, he and others at AGT not only knew about the Chinese student’s participation but also shared controlled technical data with him. When Sherman indicated to company officials that he wanted to tell the truth to government investigators, he was told that the company would not provide him with legal representation. So, he told federal investigators during the early part of the investigation that AGT had no inkling that Roth was using foreign nationals.
By putting Sherman on the stand, the prosecution is endorsing his testimony that others at AGT knew what was going on and knew that it was illegal. Why Sherman is the only one to get indicted, while his equally culpable superiors appear to have escaped prosecution, is far from clear, and may erode the jury’s confidence in the government’s case.
Sherman’s testimony does no favors for Professor Roth either. If indeed Roth asked Witherspoon to apply for a license for the Iranian student, it’s hard to credit the defense’s assertion that Roth disagreed with Witherspoon’s assertion that the participation of the Chinese student was illegal.
NOTE: Export Law Blog will be going on a brief hiatus for the Labor Day holiday starting tomorrow, but we’ll be back on Tuesday, September 2, with more on the Roth trial and other export law matters of interest. Also, August 21 was our second anniversary, and I’d like to take this opportunity to thank the many readers, friends and commenters, without whom a first anniversary, much less a second one, wouldn’t have been possible.
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Copyright © 2008 Clif Burns. All Rights Reserved.
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8 Comments:
Congratulations Cliff for your second anniversary! Excellent blog.
Clif, thanks for all that you do for our community. Enjoy your time off. You deserve a break. – Fred
In its pre-trial brief, the Department of Justice makes two legal arguments that will put the Big Chill on U.S. exports once industry finally cottons on to what they’re up to: (1) That the proof of knowledge is controlled by the Supreme Courts decision in Bryan, a firarms case, rather than the plain meaning of the text of the Arms Export Control Act in 22 USC 2778(c); and, (2) that the pre-trial “certification” by DDTC that an item is on the U.S. Munitions List has to be accepted as fact and is not subject to judicial review (a distortion of 22 USC 2778(h). In the recent Alavi case in Phoenix, DoJ took similar positions with respect to both the scienter requirement and a BIS commodity classification procured by the prosecution from BIS on the eve of trial that contradicted an earlier CCAT issued by BIS with respect to a software simulation software program that had classified the program as EAR99. DoJ had also taken a similar position in the rifle-scope case in Wisconsin, although not quite so bluntly put as in the Roth case.
The Bryan case, interpreting the definition of “willfully” in a firearms statute that was worded differently from the AECA, held that the government did not have to prove that the defendant knew about regulations he supposedly violated but only had to prove that the defendant violated a “known legal duty”. The language of the AECA, 2778(c), is quite specific: The government must prove”willfully violates any provision of this section or section 2779 of this title, or any rule or regulation issued under either section”. By focussing only on the definition of the term willfully, the government diverts the attention of the court away from the construction of the rest of the statutory expression. Its the old three-card monte approach to legal argument.
The government’s assertion that post facto classification determinations are non-reviewable political questions is truly dangerous stuff, which, if allowed to stand, allows DDTC to deprive the judge and jury of the power to decide an essential element of the crime, to wit, whether a particular thing was on the USML. In other words, DDTC can certify that any widget is a defense article or BIS can certify that any gadget is in a controlled ECCN, even when that pre-trial certification contradicts earlier classifications, and you can’t challenge it, even if its clearly wrong. This means that folks like me who self-classify things everyday are at risk and have no real hope of defense if some one at DDTC takes a dislike to us for any or no reason and decides to get even by issuing a classification determination that is wrong.
DoJ’s position is clearly wrong. AECA 2778(h) only excludes from judicial review the rulemaking by which DDTC adds generic classes of things to the USML, not the individual adjudication (licensing is part of adjudication in APA parlance) of whether a specific thing is described by the USML, and there is no similar language in the late EAA or in IEEPA. The political question doctrine was never meant to extend to classic legal determinations such as classification of items, which the CIT does everyday with respect to the HTS (itself a product of an international treaty). I suspect that DoJ is trying use the political question theory to trump the application of US v Mead, which held that Customs classification determinations are not subject to Chevron deference, to export classifications. The Supreme Court applied US v. Mead to the Attorney General’s determination that assisted suicide was not an acceptable medical practice in Gonzales v. Oregon, so Mead is of precedential value in administrative law beyond just Customs law, and I would suggest Mead undermines the lower court case law that accept the classification as political question theory (e.g., U.S. v. Alavi, USDC Arizona).
Mike, I plan to blog on the DDTC certification issue in the Roth case when I get back from vacation. I agree with you that the only thing shielded from review is DDTC’s decision to put a category of items on the USML, not the adjudication of whether a particular item falls in a designated category of the USML. And I have legislative history to back it up.
My concern here is that combining these DDTC “certifications” and a weakened scienter requirement can turn DDTC into a star chamber that can send someone to jail without adequate process other than a trial on the usually non-controversial question of whether an export occurred or not.
Clif: I believe that cumulative effect of the certification claim and the lowered scienter that you suggest is exactly what our government intends.
Excellent blog site…….enjoy your holiday.
The jury’s in. Conviction on 18 counts.
Just ran across this post at In From the Cold that compares the Roth prosecution to two national security prosecutions of connected people. Doesn’t add to the export aspect of the Roth case but might lead a clue to why the higher ups at AGT weren’t prosecuted. In national security it is who you know.
http://formerspook.blogspot.com/2008/09/tale-of-three-security-cases.html
