Retired University Professor Loses Appeal of Criminal Export Conviction

 On January 5, 2011, Court of Appeals for the 6th Circuit upheld the conviction of John Roth (Roth), a retired electrical engineering professor at the University of Tennessee at Knoxville (UT), found guilty of the Arms Export Control Act (AECA) violations in 2008. 

Case Facts

On September 3, 2008, the Eastern District court of Tennessee at Knoxville, Roth was found to have violated the AECA when he exported data from a defense research project on a trip to China and allowed two foreign nationals in Knoxville to access certain data and equipment in violation of the AECA.  

Roth is a published author in the field of plasma technology and a minority owner at Atmospheric Glow Technologies, Inc. (Atmospheric), a Knoxville, TN corporation. In May 2004, Atmospheric was awarded a U.S. Air Force military-purpose contract to develop plasma actuators that could be used to control the flight of small, subsonic, unmanned, military drone aircraft. The project was broken down into Phase I, which entailed developing the design of the actuators, and Phase II, which involved testing the actuators in a wind tunnel and on a non-military aircraft. Roth was told at the beginning of the project, on which he was to work as a consultant, that it was to be paid with "6.2" funds, which Roth knew meant that the research would be subject to export control laws that prohibited access to the research outside the U.S. or to foreign persons unless a license had been obtained. 

When Phase I was completed, Roth signed a subcontract between him and Atmospheric acknowledging that Phase II work was subject to export controls. During the project, Roth had two UT graduate students, Xin Dai, a Chinese national and Sirous Nourgostar, an Iranian national, work on the project. The work scope included access to project's technical data and to a device called Force Stand, which was designed specifically to collect data and to test the plasma actuators.  

After meeting with opposition from Daniel Sherman, the principal of Atmospheric, regarding foreign nationals working on the project, Roth sought advice from an the UT and was directed to Robin Witherspoon, UT's officer in charge of export controls, who notified Roth that the project data was export controlled. After the notification, Dai was removed from the project. In addition, knowing of Roth's upcoming lecture trip to China, Witherspoon warned Roth not to take any information related to Phase II abroad. Atmospheric also obtained agreement from Roth not to take any project information to China. 

When on May 16, 2006, Roth traveled to China to lecture at universities regarding his work, he took with him a paper copy of a Phase II Weekly Report, a flash drive with electronic copies of Phase II reports, and a laptop computer that stored a copy of the Department of Defense Advance Research Projects Agency's project proposal (Agency Proposal).  Roth also told Dai to send to him a copy of a paper containing Phase II data via a Chinese professor's e-mail address. 

On September 3, 2008, the U.S. District Court for the Eastern District of Tennessee convicted Roth with one count of conspiracy to export defense articles in violation of the AECA, fifteen counts of exporting defense articles in violation of the Act, and one count of wire fraud. 

Court of Appeals Holding

On appeal, Roth argued that: (1) the Phase II data and the data included in the Agency Proposal were not defense articles or services as a matter of law because they were not developed to put plasma actuators on items identified on the Munitions List; (2) the district court incorrectly instructed the jury as to willfulness and improperly failed to deliver his proposed instruction regarding ignorance of the law; and (3) there was insufficient evidence to support the jury's conclusion that he willfully exported the Agency Proposal because he never opened the electronic file and could not have known its contents until after he returned to China.

With regard to Roth's first contention, the Court of Appeals held that "the federal regulations extend export controls to all stages of defense projects that are covered by the [AECA], not just the final stages when military devices are directly involved." Accordingly, the Court explained, in deciding whether AECA applies to information, articles or services, project stages must not be considered in isolation but, rather, in context of other project stages. The Court stated that it was incorrect to think that "barriers exist between the stages of the project that prevent the defense article qualification from being imputed from one stage to another." As Phase II involved incorporating plasma actuators on military drone aircraft, all of the project work was correctly held by the district court to be defense articles and services. 

With regard to Roth's second contention as to whether the instruction on "willfulness" issued by the district court was correct, the Court decided that the instruction was proper. Roth had argued in its appeal that the "willfulness" required the defendant to intentionally export defense articles that he specifically knew were on the Munitions List. The Court held that the section 2778 of the AECA does not require a defendant to know that the items being exported are on the Munitions List. Rather, it only requires knowledge that the underlying action is unlawful. Accordingly, the Court held that the instruction given by the district court defining willfulness as doing something intentionally that the defendant knew was unlawful, was proper. 

The Court also held that ignorance of the law as a defense instruction, as proposed by Roth, was not a correct statement of the law, and the portion that was correct was substantially covered by another instruction.The Court noted that no circuit court cases have decided whether ignorance of the law was a separate defense to charges under the Act, and in the two Fifth Circuit cases that addressed the issue, neither held that juries must be instructed about ignorance as a separate, affirmative defense. Moreover, in this case the ignorance element was substantially covered by the district court's instruction regarding willfulness in the "[n]egligent conduct, or conduct by mistake or accident, or with a good faith belief that the conduct was lawful, is not sufficient to constitute willfulness" language. In addition, the Court found that because the district court addressed much of the proposed instruction in the willfulness instruction, failing to deliver Roth's proposed ignorance of the law instruction to the jury impaired his case only slightly, if at all. As such, the Court held that the district court did not abuse its discretion in declining to deliver Roth's proposed instruction on ignorance of the law as a separate defense. 

On Roth's final contention, the Court held that the purpose of the Agency Proposal was to build military munitions, and it was premised upon the Phase II technology that UT had told Roth was export controlled and instructed him to not take anything relating to Phase II on his trip to China. In addition, both Roth and the Atmospheric's principal Sherman had discussed the project information and Roth knew that it was export controlled as the discussions were conducted with Phase II or the Proposal background. Finally, Roth knew that the research he was conducting in Phase II was export controlled, and that it was essentially the same technology used in the Agency Proposal. The Court stated that, "Roth's conviction could be sufficiently supported by nothing more than circumstantial evidence." Thus, a rational jury could find beyond a reasonable doubt that Roth knew that the Proposal contained export controlled information and could not be exported out of the U.S. without a license. 

Absent a review by the U.S. Supreme Court, Roth must now report to prison to serve the four-year prison sentence imposed by the district court in 2010.