Archive for the ‘Customs’ Category


Dec

6

DIY Licensing Results in DDTC Debarrment


Posted by at 5:36 pm on December 6, 2013
Category: CustomsDDTCITAR

By Ncollida1106 (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons http://commons.wikimedia.org/wiki/File%3AMTW_Picture.jpg

The State Department announced last week that it debarred LeAnne Lesmeister, a former export compliance officer for Honeywell International, Inc., from ITAR-related activities because she “used her position to circumvent Honeywell’s export compliance program in the fabrication of various export control documents that Ms. Lesmeister presented as Department of State authorizations.”  Honeywell had voluntarily disclosed Lesmeister’s activity to the State Department.

DDTC’s charging letter to Lesmeister in July of this year provides details of egregious export control violations alleged against her to support the 21 violations with which she was charged.  Just samples from the charging letter are stunning.  In connection with her work as a senior export compliance officer for a Honeywell aerospace facility in Florida, DDTC alleged the following:

  • Licenses Lesmeister “fabricated” used DSP-5 license numbers that, in some cases, had appeared on previously approved licenses to Honeywell for unrelated products or, in other cases, had appeared on previously approved licenses to unrelated applicants where a Honeywell entity sometimes appeared as a party or often not.
  • With respect to an approved technical assistance agreement that Lesmeister “falsified,” she wrote  a Honeywell employee that “we are expecting to see approval within about a week at max, all staffed agencies have responded so it is just a matter of getting the licensing office to finalize.”
  • For a “fabricated” DSP-5 license and an falsely approved technical assistance agreement, Lesmeister wrote to two Honeywell employees, “[t]hey ended up sending it to me – it ain’t pretty but it is official.”
  • In one case, Lesmeister “fabricated” a letter “supposedly issued by the Office of Defense Trade Controls Licensing” that purported to approve a temporary change in end-use to a previously exported item.

In one instance, Honeywell relied on a false DSP-5 license created by Lesmeister and, in turn, attempted to export a product to Argentina and submitted the false license to U.S. Customs.  Customs rejected the transaction because the false license number was not registered in the Automated Export System.

This case is noteworthy not just for its alleged activity, but it was also a first for the State Department.  Lesmeister failed to answer her charging letter.  As a result, and for the first time according to the State Department, it referred an unanswered charging letter alleging ITAR violations to an Administrative Law Judge for default consideration.  The Administrative Law Judge issued a default order against Lesmeister, and DDTC then issued its debarment order last week.

Admist all of this, it is important to note that DDTC charged Lesmeister with violations only between 2008 and 2012 although she had worked in export compliance at Honeywell for 27 years.  With the applicable statute of limitations likely running in connection with Honeywell’s voluntary disclosure, there is nothing in State Department documents made public to date that refer to any alleged violations that occurred prior to 2008.

At the moment, the fact that no penalties, civil or criminal, have been imposed against anyone is stunning.  Honeywell, however, appears to have done several things right.  Honeywell terminated Lesmeister in June 2012 upon discovery of the violations and, sometime thereafter, voluntarily disclosed the matter to the State Department.

On the other hand, Honeywell may not be out of the woods.  The violations as alleged are significant to say the least and appear to have been discovered by Honeywell only in 2012 after Lesmeister had been with the company for over a quarter-century.  The DDTC charging letter also describes Lesmeister’s activities in ways that suggest impermissibility could have been suspected or detected.  For example, her “fabricated” DSP-5 licenses were described in different instances as “low-quality scan[s],” included “page numbers [that] were not sequential” and, perhaps worst, “the country of ultimate destination was inconsistent with the end-users listed.”

There has been no mention of any parallel proceedings being conducted by the Justice Department, or any other U.S. agency like Customs, for alleged activities that violate more than just ITAR.  One has to wonder what else may be happening, however, when the only penalty is a single person’s debarment from ITAR-related activity after that person for years was running a counterfeit government licensing department from her office for one of the largest U.S. companies.

Until more information is made public, the debarment of LeAnne Lesmeister is, at a minimum, an exceptional case for ITAR enforcement.  If there is a preliminary moral to the story, it should be that routine audits of compliance programs do serve a purpose and, if properly calibrated, should detect issues like those in this case.

Clif adds:  One explanation for Ms. Lesmeister’s failure to respond to DDTC is concern over possible criminal prosecution and a desire to avoid providing either incriminatory information admitting the violations or information denying the violations that could serve as a basis for a prosecution for lying to federal agents.   There is no evidence on PACER that Ms. Lesmeister has been indicted yet, but that doesn’t mean there isn’t an on-going parallel criminal investigation

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May

23

Honey Dumping Case Dumped After ICE Flunks Test


Posted by at 11:51 pm on May 23, 2013
Category: Criminal PenaltiesCustomsICE

Med u saću by akarlovic http://commons.wikimedia.org/wiki/File:Med_u_sacu_karlovic1.jpg [CC-BY-SA 3.0]In November 2011, Immigration and Customs Enforcement breathlessly announced that it had broken a honey dumping scheme and had indicted three Chinese nationals for trying to avoid dumping duties on Chinese honey by importing mislabeled Chinese honey as rice fructose. In its press release, ICE patted itself on the back for its good work in protecting domestic honey producers and expressed outrage that these miscreant importers had deprived the United States of more than $1,150,000 in anti-dumping duties.

“HSI agents and CBP officers working together at our nation’s ports of entry provide an important safeguard against those seeking to break the law for their own enrichment,” said Susan McCormick, ICE HSI special agent in charge in Tampa. “This type of criminal behavior poses serious dumping risks to domestic U.S. honey producers who are in danger of being run out of the market because of this fraud.”

And then last month, the Assistant U.S. Attorney filed a motion with the court requesting leave to dismiss its case against the defendants, cryptically stating that “newly discovered evidence makes it unlikely that the government will be able to prove” its case, a motion that the judge promptly granted. And today we learned what that newly discovered evidence was and why ICE was hiding in the corner hoping that no one would notice.

According to a press release issued today by the attorney for one of the defendants, the government had sent a sample for testing to an independent laboratory in Germany after the court had ruled that the test results from the Customs lab in Savannah allegedly proving that the imports were honey were unreliable and inadmissible. Those independent test results proved what the defendants had been claiming all along: they were importing rice fructose, not honey.

Oddly, there has been no press release from ICE on this development in the case.

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Jul

26

Caravan Carrying Unlicensed Goods to Cuba Clears U.S. Customs


Posted by at 8:49 pm on July 26, 2010
Category: Cuba SanctionsCustoms

laptopA convoy of buses organized by Pastors for Peace with goods destined for Cuba cleared U.S. Customs at the U.S.-Mexico border despite its cargo and its ultimate destination. The convoy, which originated in Canada and which was carrying 100 tons of medicines, medical supplies, computers, school supplies, sports equipment and construction supplies, was detained at the U.S. border with Mexico for seven hours. Even though the goods in the convoy had not been licensed for export to Cuba, the convoy and its cargo was ultimately allowed to proceed across the border.

Why the goods were not seized by Customs at the border is far from clear, but Pastors for Peace have a history of carrying humanitarian aid to Cuba without a license as an act of civil disobedience. In 1993, when Customs seized a bus on its way to Cuba as part of a Pastors for Peace convoy, the group conducted a hunger strike and the goods were eventually allowed to cross the border on their way to Cuba. Apparently, a decision has been made to allow the convoy to pass simply to avoid bad PR. On its website, the group goes so far as to say:

[Each] time the US Treasury Department backs down in the face of our challenge and allows one of our caravans to cross the border with unlicensed aid for Cuba. …

My opposition to comprehensive unilateral sanctions, such as those imposed on Cuba, has been well-documented on this blog. Even so, enforcement of the sanctions must be uniform and even-handed. OFAC can’t go after some violators and then decide to ignore others who might go on hunger strikes. Of course, the answer here isn’t to jail the religious group or seize their goods but rather to re-evaluate the whole enforcement posture of the agency with respect to humanitarian exports of this kind.

Customs did decide to make a gesture here and, as a token of ill-will, seized five laptops from the group, allegedly to see if they could be used by Cuba “for military purposes.” These were Pentium 4 laptops. I suppose these could be used by the Cuban military to play Minesweeper.

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Oct

27

The CBP Is Mightier Than The Sword


Posted by at 9:28 pm on October 27, 2008
Category: CustomsUSML

catapult
ABOVE: USML Category II(a)

I always tell clients that even an obsolete military item can be on the United States Munitions List (“USML”) and require an export license. Still, not all obsolete military items are on the USML. Maces, catapults, jousting poles, caltrops, scythed chariots, spears, arrows, and siege hooks immediately come to mind. Swords too. Unless, it seems, you are a special agent for U.S. Customs and Border Protection.

According to this op-ed column in The Capital Times by Howard Waddell of Albion Swords Ltd. in New Glarus. Wisconsin, U.S. Customs recently seized an export by him of replica swords modeled after the ones used by Arnold Schwarzenegger in Conan the Barbarian:

I received a telephone call on Friday morning indicating that a shipment we had made to our European distributor was being held by U.S. Customs because of a possible ITAR violation — shipping “weapons of war” without prior authorization from the State Department.

When I pointed out that the shipment in question consisted primarily of reproductions of swords from the 1982 film “Conan the Barbarian” starring Arnold Schwarzenegger and were not, in fact, “weapons of war” per se, the dutiful customs officer pointed out that the U.S. Marine Corps still uses swords, therefore swords are still considered to be “weapons of war.”

Oh. Good. Grief. Don’t go searching your copy of the International Traffic in Arms Regulations (“ITAR”) for “weapons of war,” because you won’t find that phrase anywhere. Nor, frankly, will you find a category on the USML which encompasses sword replicas. The closest I could find was “close assault weapons systems” in Category I(c), but, although that term isn’t defined in the USML, it is a clear reference to a now-discontinued type of highly accurate short-range rifle for urban warfare, not to swords, which haven’t been used on the battlefield for, oh, four or five centuries.

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