Supreme Court Refuses to Hear Roth Appeal
Posted by Clif Burns at 5:41 pm on October 3, 2011
Category: Criminal Penalties • ITAR • USML
ABOVE: Professor Reece Roth
The Supreme Court term began today — today being the first Monday in October — and it got right to work by denying the certiorari petition of Professor 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. In January of this year, the Sixth Circuit dismissed Professor Roth’s appeal, which makes this pretty much the end of the road for Professor Roth.
Roth’s petition for certiorari argued that the Sixth Circuit was incorrect in its finding that the wilfulness element necessary for a conviction under the Arms Export Control Act did not require a finding that Professor Roth knew that the technology in question was on the United States Munitions List. The Sixth Circuit instead held that the standard was satisfied if Professor Roth knew that his conduct was unlawful without regard to any specific knowledge he might have relating to the USML.
Roth’s petition for certiorari relied on the Eighth Circuit’s decision in United States v. Gregg, 829 F.2d 1430, 1437 & n.14 (8th Cir. 1987) which appeared to hold that a conviction required a finding that the defendant knew the exported item was on the USML. The United States government, in its brief opposing Professor Roth’s petition for certiorari, argued that the decision in the Gregg case, although it cited a jury instruction requiring that the defendant knew the export item was on the USML, did not hold that the conviction would have been reversed if the jury instruction had not referenced the USML and had simply required knowledge by the defendant that the conduct was unlawful.
Copyright © 2011 Clif Burns. All Rights Reserved.
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The Depart of Justice [sic] brief just goes to show that there ain’t no sech thang as an honest prosecutor: It is full of misrepresentations intended to mislead and bedazzle the Justices’ law clerks, who are only a couple of years out of Ivy League law schools and who certainly have no knowledge of the world of ITAR. For example, Justice’s brief falsely states that the USML is composed of 21 categories of weapons, when in fact, it is composed of 21 categories of defense articles, which may or may not be weapons. Likewise it states that the information came from Boeing’s “weapons division”, whereas Boeing doesn’t have a weapons division, it has a defense and space division. An actuator is not a weapon, nor is it unique to weapons systems. Indeed, UAVs are not unique to weapon systems: The Navy’s most popular UAV, produced by Boeing, was originally developed (by a small company that Boeing later acquired) in order to follow schools of fish for commercial fishing fleets.
Would someone please tell the Department of Justice that the President wants to increase exports?
I also question why the Department of Justice targeted the University of T
Once again, it must be iterated that the details of this case are far more than what has been poorly represented by the media or even portrayed by officials.
Note that AGT’s SBIR contract was funded by 6.2 money, and so any results, or as it turned out, even specially designed testing equipment to gather results from the devices, was in fact export-controlled; regardless that such testing is done in numerous academic labs around the world. (Note, AGT didn’t even receive the RC airplanes until after the research project was taken away from Roth and his foreign students.)
However, the export problems weren’t just at that level, Roth not only took a copy of a different, but related, military proposal (that contained a small amount of info that originated from Boeing) with him to China, but he also requested his foreign student email him, while there in China, project results that he had both specifically and repeated been instructed not to publish or share without proper prior approvals. If that was not bad enough, the investigation revealed that he was in fact already attempting to publish those restricted results anyway, after being warned, in a trade journal.
Lastly, nobody in management at AGT got in trouble at all. Yes the defunct, now bankrupt corporation got fined, but it was already in bankruptcy due to other managerial blundering, not because of the federal investigation, thus fining AGT was strictly for show.
So, the real warning that every American or LPR researcher needs to take very much to heart, is that an export-control “officer” or “compliance program”, if there even is one, is there to “maybe” notify the non-managerial employees beforehand, but most importantly, they are there to protect the organization and it’s management officers. At least that’s how this case with Roth and myself turned out.
Footnote: The foreign student was given his PhD, which UT agreed not to publish (at that time at least), and was allowed to remain here with a nice technical job. Meanwhile, my PhD was blocked; my professional career was destroyed; I was imprisoned; and I’m still disbarred from contracting with the government. Take heed, the consequences are dire and researchers are soft targets for prosecutors and investigators.
[comment edited by blog owner]
And at the time that small company developed their first UAV for commercial fishing, it was already subject to the ITAR, as were all U.S. developed UAVs.
THe assertion by “KM” that “all U.S. developed UAVs” are subject to ITAR is just plain wrong. The original “new” Commerce Control List” issued as part of the “new” Export Administration Regulations in March of 1996 had an ECCN for civil UAVs, as has the CCL ever since then. The current CCL contains ECCN 9A012 for “Non-military “unmanned aerial vehicles,” (“UAVs”), associated systems,equipment and components” and ECCN 9A120 for “Complete unmanned aerial vehicles,
not specified in 9A012” having certain specified characteristics. Non-military UAVs not specified in either 9A012 or 9A120 are in ECCN 9A991.
Defense counsel for both Dr. Roth and Mr. Sherman, who had no prior experience with export controls, never ever mentioned the EAR or the possibility that the technology might be subject to the EAR, but simply focused on whether it was in USML Cat. VIII. Indeed, the criteria in ITAR 120.3 and 120.4 were never mentioned in any of the pleadings or briefs. Likewise, there was no First Amendment challenge despite favorable language in Junger v. Daley in which the 6th Circuit recognized that export controls on technology were a form of prior restraint subject to strict scrutiny, but declined to apply strict scrutiny to source code only because source code could be functional as well as expressive.
It is also doubtful if not outright false for the government to have claimed that the test benches should have been classified as USML Cat. VIII. Unlike other USML Categories that do control tooling, USML Cat. VIII contains no such subparagraph. By the canons of construction, when words or phrases are present in one part of a law but absent in another, the presumption is that the omission is intentional unless there is overwhelming indication of a contrary intent. There is no indication that USML Cat. VIII was ever intended to cover tooling: That’s why the “China Tools” indictment against McDonnell Douglas for selling tooling used to make defense articles was brought under the EAR rather than ITAR.
This is another case of bad export law which threatens everyone in industry being made by cases where the defense team are inexpert in export control law and the US Department of Justice is more than willing to twist the law and the facts in order plus up their body count and get precedents that make it easier for the Department of Justice to hurt US exporters.
I’m not criticizing defense counsel, who have to make such tactical calculations in the best interest of their client, but industry and academia have been hurt by the precedent in this case. I’m rather disappointed that there were no amicus briefs by either industry or academia.
The issue regarding UAV’s in this case requires a very fine distinction, which at least to my knowledge, hasn’t been properly characterized in the media. AGT, Inc. purchased two remote control airplanes from a U.S. company it found selling them on the internet – in some sense these were off-the-shelf items, truly nothing more than large RC airplanes. Pictures of these RC airplanes and their basic details were put in reports that got shared with the students. How these items got construed to be UAVs has always been a mystery to me. However, there was real export-controlled UAV data in the proposal that Roth took with him on his laptop to China. I know the contents of that proposal because I was the lead author. However, as was pointed out during Roth’s trial, I placed an export-control warning on each page of that proposal, not just the page or two that had real UAV info on it. Unlike my intentions with the original SBIR contract proposals, that proposal’s intention was to be the basis of something we hoped the military would have an interest in incorporating in real military hardware. For lack of better guidance, I did what everyone does, and rubber stamped every page.
However, for the SBIR contract, nobody even knew if the RC airplane would function, and in fact to my knowledge, they never did fly with the hardware on board. And in any case, as I mentioned previously, other than the initial manufacturing specs, such as photos and dimensions, no other RC airplane details were available to the foreign student, because AGT hadn’t even received them until after we pulled the project and equipment from Roth’s lab.
As to Hillbilly’s comment regarding the test benches, I could not agree more. Yes, the test benches were designed in-house at AGT using SBIR contract funds, and we thought that they were fairly unique at the time. However, after I left AGT in 2007, an Air Force Academy scientist showed me a engineering book that was over 15 years old that covered most of the elements in the test bench design. That textbook alone would have invalidated any potential patent application due to “obviousness”. Furthermore, the test benches measured parameters that are measured and published in academic literature.
So the focus on the test benches, has always been a point of confusion for me, and I helped design and test them. But this illustrates a fine point for the academic researcher to pay attention to, if it looks like a duck, but barks like a dog, who gets to decide what “it” is. Well the government does of course, and that “deemed” decision isn’t up for review once federal investigators and prosecutors are involved – if it ever is.
So, I must agree with Hillbilly regarding the test benches, and there’s much to be concerned about the precedent set by this case and it does and will threaten the research industry for years to come.
Lastly, as an aside, I had expert export-control legal counsel though I never went to trial. And while I greatly valued their advice and tactical calculations, when I brought them to the table, I was accused of delaying the investigation and the feds took a possible plea of only a false statement off the table and replaced it with one of conspiracy. So not only did getting expert legal counsel impact me detrimentally financially, but also in the end, it made my “punishment” much worse. However, this appears to be a common tactic for prosecutors, take a plea or else!
Mr. Sherman, my apologies: I did not see an appearance entered by export counsel in the PACER records.
You are correct about the strong-arm tactics (not to mention outright misrepresentations and mis-statements of law), of the section of the Criminal division that handles export control cases. However, I have found that calling their bluff with a motion they just might loose can sometimes, emphasis on “sometimes”, make them take a less unreasonable negotiating stance.