Apr 2010
Former Probation Officer Convicted For Illegally Exporting Guns and Ammunition To Nigeria
04/28/10 12:24 AM Filed in: Export | Enforcement
On April 28, 2010, the Department of Justice (DOJ) announced that Emenike Charles Nwankwoala, age 49, of Laurel, Maryland, pleaded guilty today to exporting arms without a license, exporting controlled goods without a license and willful delivery of a firearm to a common carrier without written notice, in connection with a scheme to export firearms and ammunition to Nigeria.
DOJ states that:
DOJ states that:
Nwankwoala faces a maximum sentence of 10 years in prison for exporting arms without a license; 20 years in prison for exporting controlled goods without a license; and five years in prison for willful delivery of a firearm to a common carrier without written notice. U.S. District Judge Peter J. Messitte has scheduled sentencing for July 21, 2010 at 9:30 a.m.According to Nwankwoala’s plea agreement, he was employed by the State of Maryland as a Probation Officer. Investigation showed that during a six-month period beginning in December 2008, Nwankwoala purchased at least 37 Maverick Model 88 shotguns from a Federal Firearms Licensee located in Kensington, Maryland. On April 21, 2009, Nwankwoala ordered an additional 25 shotguns over the internet from Impact Guns in Ogden, Utah, a Federal Firearms Licensee. Nwankwoala stated that he was purchasing these shotguns for hunting in Nigeria. The licensee asked Nwankwoala if he had an export license, and Nwankwoala falsely indicated that he did. Nwankwoala never obtained guns through this gun store.
Virginia Resident Sentenced to 87 Months for FCPA Violations
04/26/10 12:40 AM Filed in: Enforcement | FCPA
On April 19, 2010, the Department of Justice (DOJ) announced that Charles Paul Edward Jumet of Fluvanna County, CA, was sentenced to 87 months in prison for bribing former Panamanian government officials to secure maritime contracts in violation of the Foreign Corrupt Practices Act (FCPA), and for making false statements to federal agents.
According to the court documents, from 1997 through 2003, Jumet and others conspired to bribe Panamanian government officials in exchange for awarding contracts to Ports Engineering Consultants Corporation (PECC) to maintain lighthouses and buoys along Panama’s waterway. In December 1997, the Panamanian government awarded PECC a no-bid 20-year concession. Upon receipt of the concession, Jumet admitted that he and others authorized corrupt payments to be made to the Panamanian government officials totaling more that $200,000.
In addition, Jumet also made a false statement to federal agents about a dividend check payable to the bearer in the amount of $18,000 that was endorsed and deposited into an account belonging to the high-ranking elected Panamanian government official. Jumet falsely claimed that this check was a donation for the official’s re-election campaign, when, in fact, Jumet admitted it was given to the Panamanian government official as a corrupt payment for allowing PECC to receive the contract.
In a related case, in February 2010, John Warwick pleaded guilty for his role in the same conspiracy to violate the FCPA. His sentencing is scheduled for May 14, 2010.
According to the court documents, from 1997 through 2003, Jumet and others conspired to bribe Panamanian government officials in exchange for awarding contracts to Ports Engineering Consultants Corporation (PECC) to maintain lighthouses and buoys along Panama’s waterway. In December 1997, the Panamanian government awarded PECC a no-bid 20-year concession. Upon receipt of the concession, Jumet admitted that he and others authorized corrupt payments to be made to the Panamanian government officials totaling more that $200,000.
In addition, Jumet also made a false statement to federal agents about a dividend check payable to the bearer in the amount of $18,000 that was endorsed and deposited into an account belonging to the high-ranking elected Panamanian government official. Jumet falsely claimed that this check was a donation for the official’s re-election campaign, when, in fact, Jumet admitted it was given to the Panamanian government official as a corrupt payment for allowing PECC to receive the contract.
In a related case, in February 2010, John Warwick pleaded guilty for his role in the same conspiracy to violate the FCPA. His sentencing is scheduled for May 14, 2010.
DDTC Revises Guidelines for Preparing Electronic Agreements
On April 26, 2010, the Directorate of Defense Trade Controls (DDTC) posted revised Guidelines for Preparing Electronic Agreements.
OFAC Posts Recent Enforcement Actions
04/23/10 12:50 AM Filed in: OFAC | Enforcement
On April 23, 2010, the Office of Foreign Assets Controls (OFAC) issued information on recent enforcement cases:
LD Telecommunications, Inc. of Coral Gables, FL, has agreed to remit $21,671 to settle allegations of violations of the Cuban Assets Control Regulations (CACR) occurring between December 2005 and March 2006. OFAC alleged that LD Telecommunications, Inc. initiated unlicensed funds transfers for the provision of telecommunications services to Cuba. LD Telecommunications, Inc. did not voluntarily disclose this matter to OFAC.
Hilton International Co. of McLean, VA (HI), a subsidiary of Hilton Worldwide, has remitted $735,407 to settle allegations of violations of the Sudanese Sanctions Regulations (SSR). OFAC alleged that between June 2002 and February 2006 HI engaged in 142 violations of the SSR in connection with its unlicensed operation of two Hilton brand hotels in Sudan. HI voluntarily disclosed this matter to OFAC. The alleged violations were discovered and self-reported as a result of pre-acquisition due diligence directed by Hilton Hotels Corporation, which acquired HI from the UK-based Hilton Group plc. in February 2006.
Pursuant to OFAC’s Civil Penalties - Interim Policy (Nov. 27, 2007), because HI signed a statute of limitation tolling agreement covering alleged violations for which the statute of limitations would have otherwise expired prior to October 16, 2007 (the effective date of the IEEPA Enhancement Act), the settlement agreement is based on the maximum statutory penalties in place at the time the tolling agreement was signed, which in this case equaled $11,000 per alleged violation.
LD Telecommunications, Inc. of Coral Gables, FL, has agreed to remit $21,671 to settle allegations of violations of the Cuban Assets Control Regulations (CACR) occurring between December 2005 and March 2006. OFAC alleged that LD Telecommunications, Inc. initiated unlicensed funds transfers for the provision of telecommunications services to Cuba. LD Telecommunications, Inc. did not voluntarily disclose this matter to OFAC.
Hilton International Co. of McLean, VA (HI), a subsidiary of Hilton Worldwide, has remitted $735,407 to settle allegations of violations of the Sudanese Sanctions Regulations (SSR). OFAC alleged that between June 2002 and February 2006 HI engaged in 142 violations of the SSR in connection with its unlicensed operation of two Hilton brand hotels in Sudan. HI voluntarily disclosed this matter to OFAC. The alleged violations were discovered and self-reported as a result of pre-acquisition due diligence directed by Hilton Hotels Corporation, which acquired HI from the UK-based Hilton Group plc. in February 2006.
Pursuant to OFAC’s Civil Penalties - Interim Policy (Nov. 27, 2007), because HI signed a statute of limitation tolling agreement covering alleged violations for which the statute of limitations would have otherwise expired prior to October 16, 2007 (the effective date of the IEEPA Enhancement Act), the settlement agreement is based on the maximum statutory penalties in place at the time the tolling agreement was signed, which in this case equaled $11,000 per alleged violation.
U.S. Nominates Sandra Bell for WCO Director
On April 22, 2010, the U.S. Customs and Border Protection (CBP) announced the nomination of Ms. Sandra L. Bell for the post of Director, Compliance and Facilitation for the World Customs Organization.
Ms. Bell, a member of the Senior Executive Service within the U.S. Government, is currently Executive Director for Regulations and Rulings within CBP’s Office of International Trade. She has 31 years of experience in her field.
Ms. Bell, a member of the Senior Executive Service within the U.S. Government, is currently Executive Director for Regulations and Rulings within CBP’s Office of International Trade. She has 31 years of experience in her field.
White House Issues Fact Sheet on the Export Control Reform Initiative
On April 20, 2010, the White House issued a fact sheet on President Obama’s Export Control Reform initiative. The initiative started in August 2009 with a comprehensive assessment of the U.S. export control system to identify possible reforms.
The assessment, created at the direction of the President, was conducted by an interagency task force that included all departments and agencies with roles in export controls. The assessment found that the current U.S. export control system does not sufficiently reduce national security risk based on the fact that its structure is “overly complicated, contains too many redundancies, and tries to protect too much.”
Based on the review, the Administration has determined that fundamental reform of the U.S. export control system is needed in each of its four component areas, with transformation to a:
For the implementation of the proposed reforms, the Administration has prepared a comprehensive, three-phase approach and is currently moving forward to make specific reforms which can be initiated immediately and implemented without legislation:
Phase I makes significant and immediate improvements to the existing system and establishes the framework necessary to create the new system, including making preparations for any legislative proposals. This phase includes implementing specific reform actions already in process and initiating review of new ones.
Phase II results in a fundamentally new U.S. export control system based on the current structure later this year. This phase completes deployment of specific Phase I reforms and initiates new actions contingent upon completion of Phase I items. Congressional notification will be required to remove munitions list controls or transfer items from the munitions list to the dual-use list, and additional funding will be required both for enhanced enforcement and the IT infrastructure.
Phase III completes the transition to the new U.S. export control system. Legislation would be required for this phase:
The assessment, created at the direction of the President, was conducted by an interagency task force that included all departments and agencies with roles in export controls. The assessment found that the current U.S. export control system does not sufficiently reduce national security risk based on the fact that its structure is “overly complicated, contains too many redundancies, and tries to protect too much.”
Based on the review, the Administration has determined that fundamental reform of the U.S. export control system is needed in each of its four component areas, with transformation to a:
- Single Control List,
• Single Primary Enforcement Coordination Agency,
• Single IT System, and
• Single Licensing Agency.
For the implementation of the proposed reforms, the Administration has prepared a comprehensive, three-phase approach and is currently moving forward to make specific reforms which can be initiated immediately and implemented without legislation:
Phase I makes significant and immediate improvements to the existing system and establishes the framework necessary to create the new system, including making preparations for any legislative proposals. This phase includes implementing specific reform actions already in process and initiating review of new ones.
- Control List – refine, understand, and harmonize definitions to end jurisdiction confusion between the two lists; establish new independent control criteria to be used to screen items for control into new tiered control list structure.
• Licensing – implement regulatory-based improvements to streamline licensing processes and standardize policy and processes to increase efficiencies.
• Enforcement – synchronize and de-conflict enforcement by creation of an Enforcement Fusion Center.
• IT – determine enterprise-wide needs and begin the process to reduce confusion by creating a single U.S. Government (USG) point of entry for exporters.
Phase II results in a fundamentally new U.S. export control system based on the current structure later this year. This phase completes deployment of specific Phase I reforms and initiates new actions contingent upon completion of Phase I items. Congressional notification will be required to remove munitions list controls or transfer items from the munitions list to the dual-use list, and additional funding will be required both for enhanced enforcement and the IT infrastructure.
- Control List – restructure the two lists into identical tiered structures, apply criteria, remove unilateral controls as appropriate, and submit proposals multilaterally to add or remove controls.
• Licensing – complete transition to mirrored control list system and fully implement licensing harmonization to allow export authorizations within each control tier to achieve a significant license requirement reduction which is compatible with national security equities.
• Enforcement – expand outreach and compliance.
• IT – transition toward a single electronic licensing system.
Phase III completes the transition to the new U.S. export control system. Legislation would be required for this phase:
- Control List – merge the two lists into a single list, and implement systematic process to keep current.
• Licensing – implement single licensing agency.
• Enforcement – consolidate certain enforcement activities into a Primary Enforcement Coordination Agency.
• IT – implement a single, enterprise-wide IT system (both licensing and enforcement).
Secretary of Defense Discusses Reform of the U.S. Export Controls
On April 19, 2010, the U.S. Secretary of Defense Robert Gates discussed the administration’s interagency review of the U.S. export control system. Gates stated that the consensus among the Secretaries of State, Commerce, Defense, Energy, and Homeland Security is that the current export control system poses a potential threat to national security. Gates identified as part of the problem export control processes that were designed 50 years ago that he claims are unfit for solving modern issues.
The fundamental reform of the export control system, according to Gates, needs to take place in four dimensions, also referred as the “four singles”:
Gates also mentioned that among the changes to the export controls system are treaties between the U.S. and each of the key allies that contain special arrangements under which an export license would not be required for export of goods that are not on a list of very sensitive items, to pre-determined communities of companies that have been vetted by the foreign government. This legislation is currently pending ratification in the Senate.
The fundamental reform of the export control system, according to Gates, needs to take place in four dimensions, also referred as the “four singles”:
- A single export control list. The United States Munitions List (USML) and Commerce Control List (CCL) would be replaced by a single list, which would prevent forum shopping where exporters may try classification under one list versus another, duplication, where an item is covered by both USML and CCL, and also aid companies in understanding applicable restrictions.
2 A single licensing agency. Currently, two different authorities – the State Department’s Director of Defense Trade Controls (DDTC) and the Commerce Department’s Bureau of Industry and Security (BIS) – often make independent, unilateral decisions, which sometimes cause for confusion and delay in decision making.
3 A single agency to coordinate enforcement, which would strengthen the ability to identify, investigate and prosecute violations. Currently, multiple enforcement agencies exist, including Immigration and Customs Enforcement (ICE), State enforcement, Commerce Export Enforcement Office, FBI, and many others. It is expected that in the future there will still be multiple enforcement institutions, but their efforts will be coordinated to avoid overlapping jurisdiction and, in some cases, confused authorities.
4 A single unified IT system. Gates stressed that a single IT system instead of the current three would review license application process across the U.S. government and also make this process more efficient.
Gates also mentioned that among the changes to the export controls system are treaties between the U.S. and each of the key allies that contain special arrangements under which an export license would not be required for export of goods that are not on a list of very sensitive items, to pre-determined communities of companies that have been vetted by the foreign government. This legislation is currently pending ratification in the Senate.
BIS Eliminates Paper Versions of Most Export Submissions
On April 5, 2010, Bureau of Industry and Security (BIS) issued a final rule in Federal Register that eliminates the paper version of most of export submissions to BIS. The rule also changes certain recordkeeping requirements associated with the elimination of paper documents.
Specifically, the rule revises the EAR to state that BIS may issue export and reexport licenses either electronically or on paper and that each license will bear a license number. This language enables BIS to exercise discretion in deciding whether to issue a license electronically in SNAP-R or on paper. However, BIS expects that it will issue nearly all licenses electronically. Unless some exceptional circumstances exist, only licenses for which the applicant was authorized to file the application on paper and licenses that BIS cannot issue electronically (currently, only reopened licenses) will be issued on paper. BIS made the change to reduce the costs of generating and mailing paper copies of licenses.
Currently, BIS issues license related documents in two ways: electronically in BIS’s Simplified Network Application Processing Redesign system (SNAP-R) and on paper. Most license related documents are issued in both electronic and paper form. Only a few such documents are issued only on paper.
The EAR require that export license applications, reexport license application, License Exception AGR notification, encryption review requests, and classification requests be submitted to BIS electronically using SNAP-R, except in individual instances where BIS authorizes a paper submission. The license related documents associated with a SNAP-R submissions are issued on line in SNAP-R where the submitter may view, save, or print a copy. In addition, a paper version of each of those documents is mailed to the submitter.
In two situations, BIS issues only a paper version of a license related document: when BIS authorizes a paper submission, and when BIS must reissue the license related document because it reopened a matter previously considered to be completed. BIS does not intend to stop issuing paper license related documents in those two situations. It also does not intend to change its practices regarding issuance of Special Comprehensive Licenses or Special Iraq Reconstruction Licenses, both of which are paper-based.
BIS intends to discontinue issuing paper documents in the situations where it currently issues both paper and electronic versions of license related documents.
Recordkeeping Requirements
The final rule also made changes to recordkeeping requirements associated with the elimination of paper documents:
The new rule also provides that parties who receive documents issued by BIS in SNAP-R may store the documents in two ways, either of which meet the requirements that original documents be retained: electronically in a format readable by software possessed by the recipient party, or storage of a complete printed paper copy of the document.
The new rule is effective May 5, 2010.
Specifically, the rule revises the EAR to state that BIS may issue export and reexport licenses either electronically or on paper and that each license will bear a license number. This language enables BIS to exercise discretion in deciding whether to issue a license electronically in SNAP-R or on paper. However, BIS expects that it will issue nearly all licenses electronically. Unless some exceptional circumstances exist, only licenses for which the applicant was authorized to file the application on paper and licenses that BIS cannot issue electronically (currently, only reopened licenses) will be issued on paper. BIS made the change to reduce the costs of generating and mailing paper copies of licenses.
Currently, BIS issues license related documents in two ways: electronically in BIS’s Simplified Network Application Processing Redesign system (SNAP-R) and on paper. Most license related documents are issued in both electronic and paper form. Only a few such documents are issued only on paper.
The EAR require that export license applications, reexport license application, License Exception AGR notification, encryption review requests, and classification requests be submitted to BIS electronically using SNAP-R, except in individual instances where BIS authorizes a paper submission. The license related documents associated with a SNAP-R submissions are issued on line in SNAP-R where the submitter may view, save, or print a copy. In addition, a paper version of each of those documents is mailed to the submitter.
In two situations, BIS issues only a paper version of a license related document: when BIS authorizes a paper submission, and when BIS must reissue the license related document because it reopened a matter previously considered to be completed. BIS does not intend to stop issuing paper license related documents in those two situations. It also does not intend to change its practices regarding issuance of Special Comprehensive Licenses or Special Iraq Reconstruction Licenses, both of which are paper-based.
BIS intends to discontinue issuing paper documents in the situations where it currently issues both paper and electronic versions of license related documents.
Recordkeeping Requirements
The final rule also made changes to recordkeeping requirements associated with the elimination of paper documents:
- The rule removes a requirement that the license holder attach a replacement license issued by BIS to the original license that it replaces. However, the rule retains the requirement that the license holder keep both the original and the replacement licenses.
• The rule exempts parties who submit documents to BIS via SNAP-R from requirements to retain copies of documents so submitted even thought those documents are “export control documents” under the EAR.
• The new rule requires that the following documents are kept: (1) notification from BIS that an application is being returned without action; (2) notification from BIS that an application is being denied; and (3) notification from BIS of the results of a commodity classification or encryption review request conducted by BIS.
The new rule also provides that parties who receive documents issued by BIS in SNAP-R may store the documents in two ways, either of which meet the requirements that original documents be retained: electronically in a format readable by software possessed by the recipient party, or storage of a complete printed paper copy of the document.
The new rule is effective May 5, 2010.
Exporter Assessed $100,000 Penalty for Unauthorized Exports to Iran
On April 2, 2010, Aqua-Loop Cooling Towers Co. (Aqua-Loop) of Folsom, CA, settled with Bureau of Industry and Security (BIS) charges of violating the Export Administrations Regulations (EAR).
According to the settlement agreement, from June 2004 to April 2005, Aqua-Loop exported items subject to the EAR from the U.S. to Iran, via the United Arab Emirates, without the required authorization from the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC).
Specifically, Aqua-Loop searched for and obtained items from U.S. distributors and then exported them to an Iranian customer and co-conspirator, Parto Abgardan Cooling Towers Co. (Parto). On one occasion, Parto asked Aqua-Loop to purchase a filament winding machine in the U.S. on its behalf and forward it on to Dubai and then to Iran.
According to the settlement agreement, Aqua-Loop was assessed a civil penalty of $100, 000 that was suspended for 10 years. The company is also prohibited from dealing in any transaction that is subject to the EAR for ten years
According to the settlement agreement, from June 2004 to April 2005, Aqua-Loop exported items subject to the EAR from the U.S. to Iran, via the United Arab Emirates, without the required authorization from the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC).
Specifically, Aqua-Loop searched for and obtained items from U.S. distributors and then exported them to an Iranian customer and co-conspirator, Parto Abgardan Cooling Towers Co. (Parto). On one occasion, Parto asked Aqua-Loop to purchase a filament winding machine in the U.S. on its behalf and forward it on to Dubai and then to Iran.
According to the settlement agreement, Aqua-Loop was assessed a civil penalty of $100, 000 that was suspended for 10 years. The company is also prohibited from dealing in any transaction that is subject to the EAR for ten years
Daimler Settles FCPA Charges for $185 Million
04/01/10 11:06 PM Filed in: FCPA | Enforcement
On April 1, 2010, German auto manufacturer Daimler AG (Daimler) and three of its subsidiaries settled Foreign Corrupt Practices Act (FCPA) charges in Washington’s U.S. District Court.
The complaint filed against Daimler alleged that from 1998 to 2008 the company bribed foreign officials in 22 countries, including Russia, Iraq and China, to secure business. According to the settlement agreement, acknowledged its FCPA violations and entered into a two-year deferred prosecution agreement with the Justice Department. In addition, Daimler must disgorge $91.4 million in profits to the Securities and Exchange Commission (SEC) and pay a $93.6 million fine to the Justice Department, for a total of $185 million in combined criminal and civil penalties.
Federal sentencing guidelines call for a larger fine, but the Justice Department decided to reduce the penalty following Daimler’s cooperation with the government. As part of its deferred prosecution agreement, Daimler agreed to retain an independent compliance monitor for three years to oversee its implementation of a compliance program.
The complaint filed against Daimler alleged that from 1998 to 2008 the company bribed foreign officials in 22 countries, including Russia, Iraq and China, to secure business. According to the settlement agreement, acknowledged its FCPA violations and entered into a two-year deferred prosecution agreement with the Justice Department. In addition, Daimler must disgorge $91.4 million in profits to the Securities and Exchange Commission (SEC) and pay a $93.6 million fine to the Justice Department, for a total of $185 million in combined criminal and civil penalties.
Federal sentencing guidelines call for a larger fine, but the Justice Department decided to reduce the penalty following Daimler’s cooperation with the government. As part of its deferred prosecution agreement, Daimler agreed to retain an independent compliance monitor for three years to oversee its implementation of a compliance program.