May

22

Mr. Chips or Professor Moriarty?


Posted by Clif Burns at 8:28 am on May 22, 2008
Category: General

Mr. ChipsProfessor 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.]

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4 Comments:


Universities champion a culture of free and open exchanges of information and ideas, and for that reason are particularly vulnerable to the “deemed export” problem. Some institutions – those, for example, who participate in programs sponsored by the US Government – are pretty savvy in this area. In this case, the press release pointed to other facts suggesting that the good professor knew what he was doing, and that the institution was as much a victim as national security. As the old proverb goes, there are always three sides to every story…

Comment by John Liebman on May 22nd, 2008 @ 12:28 pm

FYI Robert Gates recently asked American academics to send information related to the Chinese military back home:

http://blog.wired.com/defense/2008/05/project-minerva.html

(credit goes to MutantPalm)

Comment by Charles Liu on May 23rd, 2008 @ 2:59 pm

Cliff, in the earlier NY Sun article one of the prosecuting attorney (responding to your observations on willful violations), that he was relying on the “deliberate ignorance”.

“…but a prosecutor, Jeffrey Theodore, said case law in the 6th Circuit allows a prosecution in cases involving “deliberate ignorance” of the legal requirements.” NY Sun article ” Chinese Grad Student’s Work Leads to Criminal Case” by Josh Gerstein 17 April 2008

Another article picked it up as “willful blindness”.

What’s their 6th circuit case law?

Comment by David Brady on May 23rd, 2008 @ 4:26 pm

Mr. Brady: The E.D. Tenn. AUSA was winging it: Not having any experience with an AECA/ITAR prosecution, he just assumed the law was the same as most of the meth cases he normally prosecutes, and got the law wrong, as most East Tennessee AUSA’s do. Unfortunately Judge Varlan, a law school classmate of mine who is more of a gentleman than a scholar, signed off on the plea agreement despite Mr. Sherman’s statement that he wasn’t aware of the licensing requirement.

Comment by Mike Deal on May 26th, 2008 @ 8:15 pm