In a previous post on the prosecution of Mark Knapp for his efforts to export a military surplus F-5 fighter jet to Iran, I criticized the apparent defense offered by Knapp’s attorney — that the F-5 could be shot down by U.S. fighter jets. Well, apparently Knapp and his attorney have come to their senses, and Knapp has now pleaded guilty to the charge relating to the fighter jet and other defense items that Knapp was attempting to export, including an ejection seat and a military radio.

Today’s news report indicates that Knapp was turned in by one of his customers who was caught attempting to export an ejection seat which he had bought from Knapp. Knapp’s attorney further added that Knapp began to sell his private collection of military gear after he was unable to find a job. Some of the items charged in the indictment, according to Knapp’s attorney, had been purchased by Knapp on eBay.

ABOVE: Professor Reece Roth

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On Wednesday, January 5, the Sixth Circuit dismissed the appeal of Professor J. Reece Roth, a professor emeritus at the University of Tennessee who had been convicted of violating the Arms Export Control Act (“AECA”). The conviction was based on, among other things, Professor Roth permitting access by a foreign graduate student to technical data relating to an Air Force military drone project.

Professor Roth argued in his appeal that the technical data was not export-controlled under the International Traffic in Arms Regulations because the next phase of the project involved testing his research on commercial aircraft. The Sixth Circuit dismissed this by noting that the project ultimately contemplated a military application of the research.

In reaching this result, the Sixth Circuit cited the Seventh Circuit’s decision in United States v. Pulungan, 569 F.3d 326, 328 (7th Cir. 2009). That decision held that although the AECA banned judicial review of a decision to place a category of items on the United States Munitions List {“USML”), it did not prohibit judicial review of the question as to whether a particular item fell within a category of items designated by the USML.

In addition, Roth argued that the lower court’s jury instruction on the “wilfulness” standard required for a conviction under the AECA was incorrect. According to Roth, the court should have given the jury an instruction that he could only be convicted if he was aware that the controlled technology was on the USML. The Sixth Circuit rejected this contention and held that the lower court properly instructed the jury that Roth could be convicted simply if he was aware that his conduct was unlawful. Although the Eight Circuit in United States v. Gregg, 829 F.2d 1430, 1437 & n.14 (8th Cir. 1987) appeared to hold that the defendant needed to be aware that the exported item was on the USML, the Sixth Circuit followed the looser rules of the First, Second, Third and Fourth Circuits which only require that the defendant knew that the export was unlawful.

Marc Knapp, a 36 year old California man, was arrested on charges that, among other things, he attempted to export a military surplus F-5 fighter jet and other export-controlled defense articles. to Iran. The recently unsealed criminal complaint alleges a number of interesting details including a new entry in the Futile Justifications Hall of Fame.

The complaint alleges that Knapp and an undercover agent discussed in great detail the plans to export the F-5. The aircraft, which was stored at an airport in Van Nuys, California, would be flown to Delaware where it would be crated, then shipped to Hungary for transshipment to Iran. During these conversations, a remarkable interchange allegedly occurred:

UCA1 [the undercover agent] then informed KNAPP that Iran was trying to obtain F-4 and F-14 fighter jets and accompanying items, and that so long as KNAPP did not care about the end destination, they could make some money. KNAPP stated that he was able to “compartmentalize,” and that the United States would “shoot down” anything (referring to aircraft, etc.) provided to Iran.

In Knapp’s view, apparently, it was okay to sell fighter jets and other defense items to Iran as long as they were pieces of junk that the U.S. could easily shoot out of the sky. Calling this a futile justification probably involves stretching the meaning of justification beyond the breaking point.

As jaw dropping as Knapp’s “justification” was, the story gets worse. Knapp’s defense attorney has apparently decided that Knapp is his best resource on export law rather than, say, the International Traffic in Arms Regulations (“ITAR”) or the court cases involving the Arm Export Control Act set out in the Annotated United States Code. There is no other reasonable explanation than that for this:

The F-5 Tiger was sold as surplus years ago to a California man who rented it to movie studios. … Knapp’s lawyer … said it would have done the Iranians no good to buy it.

“If the plane were used against the U.S., it would likely be shot down in minutes or seconds,” he said.

I went back and checked the ITAR and was unable to find an exemption for ineffective defense articles.

A recently unsealed criminal complaint filed in federal district court in Seattle provides a wealth of details on the criminal export prosecution of Lian Yang, a software engineer living in Woodinville, Washington. According to the allegations of the complaint, Yang, who was caught in an undercover sting, attempted to illegally export ITAR-controlled satellite components to the PRC without the required export license.

Yang initially approached a confidential source and told him that he had “old school friends” in China who were making money importing electronic parts and that there was a financial opportunity in selling those parts to them. Yang indicated that some of the parts that his friends wanted might be export-controlled, but that he didn’t want to do anything illegal. Yang then provided a list of the items he was seeking which included an ITAR-controlled satellite component. Two days later the confidential source was in contact with the FBI.

At the behest of the FBI, the confidential source put on a wire and continued to work with Yang on Yang’s plan to acquire and export the satellite parts. Of course, a criminal conviction would require proof that Yang knew that it was illegal to export the items in question. According to the complaint, Yang requested that the parts be shipped under false invoices that concealed the actual parts in the shipment. Additionally, the complaint alleges that Yang was contemplating further concealing the nature of the parts by effacing the part numbers printed on them.

The undercover agents then became involved in the investigation as the supposed supplier of the parts. Yang wired the negotiated price into an account set up by the agents, who arrested Yang at the meeting at which they were to deliver the parts.

Oddly, at one point, the undercover agents told Yang that there would be delay in the delivery of the parts. The delay, they said, “is with the government,” further stating that the “compliance paperwork” was “waiting to be reviewed and signed.” This will certainly complicate the government’s proof that Yang had criminal intent and knew that the export of the items was illegal. It’s not clear what innocent reason the government had for suggesting that the transaction was being reviewed by the U.S. government.