Comments on: Work by Chinese Grad Student Leads To Deemed Export Conviction

By: Mike Deal

Mike Deal — Mon, 21 Apr 2008 15:48:46 +0000

The Information (a pleading that initiates a criminal which is used instead of an indictment in cases where a negotiated plea is expected)is available directly from the Court in pdf format through the PACER on-line system for 8 cents a page.

If you would like to email me at exportlaw@bellsouth.net I’ll send you a copy for free.

I recommend that compliance professionals who are non-lawyers sign up for PACER because its often the only way to get a copy of an indictment, order or brief, and copies of indictments and informations are very useful in convincing management that a compliance program is in their best interest.

By: David Brady

David Brady — Mon, 21 Apr 2008 13:02:42 +0000

Mike- I also spotted the NY Sun’s “deliberate ignorance” case law reference in the NYS, thanks for the amplifying information.

You reference a 16 page information (document?) filed in the Sherman case. Is it web available or can it be otherwise obtained.

By: Mike Deal

Mike Deal — Fri, 18 Apr 2008 15:22:57 +0000

Apparently, the AUSA is aware that he misrepresented the law. He told the New York Sun that case law in the 6th Circuit allowed the court to infer “willful blindness”. The transcript of the plea hearing isn’t available, yet, but the 16 page Information filed in Sherman’s case alleges no essential facts that would support a specific finding by the court of willful blindness. In fact, the only allegations supporting willfulness are that the SBIR contract that ultimately resulted contained standard DoD boilerplate that mentioned export controls and that one e-mail sent round before the contract suggested that the information was “AECA” controlled.

Given that the SBIR contract involved patented technology that Dr. Roth invented before entering into the contract, it is also very questionable whether, and how much of the research involved was actually subject to restrictions or subject to the ITAR rather than the EAR. In fact, the Information filed by the government calls the contract a “Munitions Contract”, but later refers to it as an SBIR contract. SBIRs are rarely for the development of a specific weapons system and usually are more for the development of a concept or innovation.

The exporting community and the academic community both need to demand an investigation by Justice’s Inspector General. This case has the potential to adversely affect both the economy and academic freedom. Its too important to regarded as a mere abberation.