Professor John Roth, an electrical engineering professor at the University of Tennessee, has been indicted for violations of the Arms Export Control Act. The indictment alleges, among other things, that Roth disclosed to a Chinese graduate student controlled technical information on a drone aircraft being developed for the Air Force. Additional charges relate to Professor Roth traveling to China with controlled technical data. There is no charge that this data was disclosed to anyone in China, and the charge apparently arises from the fact that the data was on the laptop computer which he took with him to China.

Violations of the Arms Export Control Act must be premised on willful conduct and specific intent, i.e., a “voluntary, intentional violation of a known legal duty.” United States v. Adames, 878 F.2d 1374 (11th Cir. 1989). The indictment alleges that Professor Roth’s exports were willful, but it is, shall we say, sketchy on alleging, much less demonstrating, that Professor Roth knew that his actions were unlawful.

The charges relating to his taking his laptop computer to the PRC seem particularly vulnerable in this regard. There is no suggestion that Professor Roth disclosed this information while in China and thus it is perfectly reasonable to suppose that he had no idea that he needed a license from the Directorate of Defense Trade Controls (“DDTC”) to take his computer with him on his trip to China. (He was in China to teach a course at a Chinese university).

The deemed export charges — i.e. disclosure of the technical data in the United States to a PRC national — also seem to lack the requisite criminal intent. The concept of a “deemed” export is not something naturally intuited by everyone. Many people don’t realize that it might be criminal to disclose non-classified data in the United States to a foreign national. The indictment attempts to allege, unsuccessfully I think, specific intent by Professor Roth by claiming (a) that Roth sent an email in which discussed U.S. nationals as potential students who might assist the project and (b) that there were references to export controls in a contract reviewed by Roth and relating to the drone project. None of this makes a convincing case that Roth knew that having a Chinese student work on the drone project was a federal crime.

There is, I think, a big missing piece to the puzzle here. Nothing in the indictment provides any motive or reason that Professor Roth would intentionally commit a federal crime. There is no reason to think that he had any financial motivation here. Nor is this a case where a motive might be inferred because of any ethnic loyalty of the defendant to the country of his birth. Nor was there any apparent attempt by Professor Roth to conceal that the Chinese student was working on the project. In short, nothing adds up here. In my view, it seems that Professor Roth is more likely to be Mr. Chips than Professor Moriarty.

[Thanks go to Josh Gerstein of the New York Sun for sending me a copy of the indictment.]

The Bureau of Industry and Security recently released a Final Decision and Order fining Kabba & Amir Investments, Inc. dba International Freight Forwarders (“IFF”), a Canadian freight forwarding company, $6,000 for aiding and abetting the export of an x-ray film processor to Cuba in June 2000. Notwithstanding the potential penalties that could have been imposed on it, IFF represented itself in a hearing on the charges and made arguments that, well, illustrated the famous maxim about someone who represents themselves having a fool for a client and an idiot for a lawyer.

The underlying facts appeared not to have been in dispute. Kontron Instruments S.A., a French company, ordered four AFP Minimed 90 x-ray film processors from a U.S. company and had them shipped to IFF in Canada. Kontron directed IFF to remove all shipping and packing labels and documents, relabel the packages and ship the products to Cuba.

IFF took the matter to hearing in front of an ALJ and premised its defense on two arguments. First, that it didn’t know that the goods originated from the United States. Second, IFF argued that under Canadian law the exporter, not the shipper, was required to obtain any export license. Luckily, IFF can’t sue itself for malpractice.

The ALJ dismissed the preposterous argument that IFF didn’t know that the goods came from the U.S. by noting that IFF had admitted in its response to the initial BIS charging letter that it had been “advised to pickup a shipment from United States for furtherance to Cuba.” IFF probably also realized where the shipment came from when it removed the original shipping and packing labels and documents, but I suppose that’s just piling on.

Nor did IFF’s argument that Kontron, not IFF, needed to get the export license fare much better. Section 734.12 of the Export Administration Regulations (“EAR”) specifically states that compliance with foreign law does not relieve anyone from compliance with the EAR.

This case was pending as of October 16, 2007, IFF was subject to the increased $250,000 penalty. Given that IFF took the matter to hearing with, charitably speaking, two not very compelling defenses, IFF should be ecstatic that BIS imposed only a $6,000 fine.

Canadians are continuing to complain about U.S. export controls on defense articles according to this article in the Montreal Gazette

ABB Bomem Inc. was waiting for beryllium parts it had ordered from a U.S. supplier, when the company was hit with a six-month delay. The U.S. supplier hadn’t complied with a series of complicated American rules governing the export and import of defense-related articles. …

“That was a big, big problem,” recalled Marc-André Soucy director of remote sensing at the Quebec City firm, which designs and manufactures optical instruments. “The very ironic aspect is that we were importing parts from the United States.”

I’m not sure I see the “irony,” but perhaps this doesn’t really translate from the Québécois.

The most significant part of the article, however, is that it reveals that the U.S.-Canada dialogue on ITAR issue continues, but still seems to be getting hung up at the same sticking point: dual nationals and arms embargoes:

behind the scenes, talks have been going on between Public Works Minister Michael Fortier – whose department oversees Canada’s Controlled Goods Program – and the United States since last year. The most recent meeting was held this month in Ottawa, Fortier’s press aide Jacques Gagnon said.

The government’s first priority is to settle concerns over dual nationality restrictions, but progress has been slow.

Under ITARs, Canadian citizens born in Vietnam, China and other restricted countries cannot access material deemed sensitive under the U.S. rules. Controversy erupted at Bell Helicopter Textron Canada Ltd. in 2006 when certain foreign-born workers were banned from working on ITAR-restricted projects – a move that violates Canadian human rights laws.

I think that it’s more likely that the North-Going and South-Going Zaxes will resolve their dispute before this one get’s resolved. For those of you unfamiliar with the Zaxes, here’s an animated version of Dr. Seuss’s tale of two creatures who couldn’t compromise:

Some enterprising pornographer — from Sweden judging by my server logs — hacked the site sometime yesterday in an unsuccessful attempt to strew porno links everywhere. As a result the site was down last night and this morning.

We’ve updated WordPress to plug any security holes in WordPress that might have been exploited. The email notification function may be a little quirky since it doesn’t look like the one that I’m using is completely compatible with the new version of WordPress. We’ll try to get any issues on that worked out over the next several days

I was saddened to learn today that one of the lions of the export bar, Don Weadon, passed away on Easter Sunday after a series of strokes that he suffered early that morning. Don was a kind and generous person, a great wit, a compelling raconteur, and a man with many friends. Laura Rozen, a friend of Don’s who blogs at War and Piece, wrote a moving and affectionate remembrance of Don which should be read by everyone who knew him.

Right after I started up Export Law Blog, I got a phone call from Don. There was very little in the export world that missed his keen eye and abundant curiosity. We met for lunch and corresponded by email after that. He provided loads of encouragement for this blog, and he often responded by email to particular posts, usually with a witty remark.

I last heard from Don on March 13 when he responded to a post I had done on Bigelow Aerospace which was planning to file a commodity jurisdiction request seeking the transfer of export licensing authority over its POOFs (privately-owned orbital facilities) from State to Commerce. The point of the post was the funny acronym POOF and the quixotic aspirations of Bigelow that DDTC would relinquish licensing of space technology. Don wrote:

Love it, Clif. As they used to say, a title on the door means a Bigelow on the floor. Literally.

Best regards,

Don

And, of course, Don wasn’t referring to a Bigelow wall-to-wall carpet on the floor.

Only 63 when he died, Don’s life was cut short sooner than anyone could have anticipated. However, the old chestnut from Plutarch rings true here: “The measure of a man’s life is the well spending of it, and not the length.” And by that measure, Don’s life was richly spent. He will be missed by many.