ABOVE: Tomoaki Iishiba

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Captain Tomoaki Iishiba, stationed at Fort Lewis in Washington State, has been charged in connection with his shipment of sixty EoTech 553 night-vision-compatible holographic rifle sights to Japan without obtaining the required export license. Prior to these charges, Captain Iishiba was best known as one of the technical consultants on a computer war game known as Metal Gear Solid.

The export classification of these sights is unclear. The one-count criminal information filed by the U.S. Attorney makes no attempt to provide an export classification for the items. If these sights are principally used on firearms listed on Category I of the USML then they would be classified as Category I(h) and require a license from the Department of State’s Directorate of Defense Trade Controls. The sights could also be covered by ECCN 0A987 which covers “optical sighting devices for firearms,” but this classification does not require a license in the case of shipments to Japan. So, we can probably safely assume that the government believes that the items are properly classified as USML Category I(h).

Notwithstanding the likely USML classification of the sights, the criminal information does not charge Iishiba under 22 U.S.C. § 2778(c), the criminal provision of the Arms Export Control Act. Rather the charge is conspiracy to violate 18 U.S.C. § 555, the overseas anti-smuggling provision added by the USA Patriot Improvement and Reauthorization Act of 2005.* That section provides as follows:

Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.

Significantly, the criminal information doesn’t allege that Iishiba knew that it was illegal to export the sights. Rather it only alleges that he “knowingly exported” the rifle sights. Now the reason to charge under 18 U.S.C. § 555 rather than Arms Export Control Act, 22 U.S.C. § 2778(h), seems clear: the prosecution is trying to avoid the scienter requirement of the later statute.

Section 127.1 of the International Traffic in Arms Regulations is violated by an unlicensed export of a defense article whether or not the violator was aware that the export required a license. And it would appear that the prosecution is reading the anti-smuggling provision to require only a knowing export that violates a regulation without a scienter requirement. Whether a court will support this reading of the new provision remains to be seen.

*The provision was enacted as 18 U.S.C. § 554, even though there was already a § 554, and it was later recodified as § 555. The information, however, continues to cite the provision as 18 U.S.C. § 554.

New-Jersey-based Advanced Orientation Systems entered into a settlement agreement with the Bureau of Industry and Security (“BIS”) pursuant to which it agreed to pay a $31,500 to settle charges that it shipped 11 “tiltometers” to Mayrow General Trading Company in August 2006. BIS agreed to waive $16,500 of this penalty if AOS committed no further export violations for one year. Exports to Mayrow General Trading Company without a BIS license are prohibited under BIS’s General Order No. 3.

AOS appears to be a relatively small company and not an experienced exporter, so it’s not surprising that it was unaware of the prohibitions of General Order No. 3, and there is no allegation in the charging documents that AOS was engaged in an intentional violation of BIS rules. Indeed, General Order No. 3 was promulgated by BIS in June 2006, only two months prior to the exports in question. This probably accounts for the relatively small fine agreed to by BIS.

One humorous aspect of the charging papers is that BIS continually insists on referring to the exported equipment as “tiltometers,” even though there is no such thing as a “tiltometer.” Maybe they were thinking about Tilt ‘O Wheels or something.

The correct term is an “inclination sensor,” which is the term used by AOS on its own website. A quick Google search of “tiltometer” would have revealed that this term refers only to a digital camera project by some English computer geeks who hung some plumb weights and protractors from a camera and to an Internet test, part of the Texas Information Literacy Tutorial about the best way to research certain questions. I guess the folks at BIS still don’t have access to the Internet.