Do You Know What You’re Doing With That Export?
By: Kelly Raia

I am an avid ‘Law and Order’ viewer. Regardless of the version (SVU, Criminal Intent or the original straight up version) I love the show. Investigate, gather the facts, peel apart the layers of evidence, show your hand, expose the proof, get the conviction (85% of the time) and poof….game over. Then of course there’s the nice wrap up and I can head off to bed!

The government is currently undergoing a different type of prosecution. What some might call a “grey area” where “knowing” and /or “conspiring” are enough to find exporters guilty of breaking the law.

I frequently use the following example in my training classes:

“I speed on the Long Island Expressway on a daily basis. I don’t get caught, I continue to speed. Do I know I’m violating traffic laws; of course. Do I perpetuate the bad behavior; absolutely. Do the Suffolk County police convict me based on my knowledge that I have committed a crime? Thank the traffic gods, not yet. They have to catch me in the act.”

The “dodging the bullet” strategy does not work in the world of export regulations. In reality, “knowing” about an illegal situation taking place is enough to get me convicted. In addition, if I’ve got a passenger driving with me to take advantage of the High Occupancy Vehicle (HOV) lane, then we’ve got a conspiracy going down!! The passenger and driver are in it together!!

Let’s look at a recent export violation case against Robert Quinn and Michael Holland. The pair were charged with willfully exporting goods from the US to Iran in violation of export control laws. Specifically, the six charges commence with conspiracy to commit an offense against the US (by shipping goods to Iran without a license) and willfully exporting goods from the US to Iran.

In reading the jury instruction letter, the judge informs the jury of the following:

“An agreement existed between two or more people to commit the crime of willfully violating export control laws by exporting to Iran without the required prior federal authorization.”

Okay, no problem with that. We can all grasp what that the judge is saying and what that entails. But get this part:

“This does not have to be a formal agreement or plan, in which everyone involved sat down together and worked out the details.”

So how about a casual lunch out with the team or a coffee break discussing “you know, if we did abc, ha, ha, ha, we could get away with…” Does this deem a conspiracy?

“There was a common understanding among those who were involved to commit the crime of willfully violating export control laws by exporting to Iran, without the required prior federal authorization”.

Common understanding…we all know we shouldn’t be doing this, but we said “what the hay, let’s do it anyway!”

How about this one...”the defendant intentionally joined in that agreement. It is not necessary to find that he agreed to all the details of the crime or that he knew the identity of all the other people the government has claimed were participating in the agreement”. Does that mean because I was in the right place at the right time having the wrong conversation I am part of that conspiracy? “A person may become a member of a conspiracy even if that person agrees to play only a minor part”. Uh oh!

So I don’t even know who I’m conspiring with but I am a member of this conspiracy group! “As long as that person understands the unlawful nature of the plan and voluntarily and intentionally joins in it”. Yeah, I knew they were doing this, but I wasn’t part of it, I just kind of went along with the program. Guilty!

What does this mean for exporters? Well even thinking about doing something unlawful can get you in trouble. As much as reading the regulations keeps you informed, reading the transcripts of the trials can be so much more informative!