When the FBI Comes Calling…®
IMPORT / EXPORT CRIMES (Continued)
50 U.S.C. Appx. § 2401 et seq. (2007).
The Crime
Section 2410(a)
Generally, the punishment for knowingly violating, conspiring to violate, or attempting to violate, any provision of section 2410 will be
- a fine of the greater of
- not more than five times the value of the exports or
- $50,000,
- imprisonment for not more than 5 years, or
- both. 50 U.S.C. Appx. § 2410(a) (2007)
However, subsection (b) provides for harsher penalties for certain willful violations.
Section 2410(b)(1)
It is a crime under section 2410(b)(1) for a person to
- willfully violate, or conspire to violate, or attempt to violate any provision of this Act or any regulation, order, or license issued thereunder,
- with knowledge that the exports involved will be used for the benefit, or that the destination or intended destination of the goods or technology involved is, any controlled country or any country to which exports are controlled for national security or foreign policy purposes. 50 U.S.C. Appx. § 2410(b)(1).
If a violation of subsection (b)(1) is committed by an individual, the punishment will be
- a fine of not more than $250,000,
- imprisonment for not more than 10 years, or
- both. Id. § 2410(b)(1)(B)
If the violation is not committed by an individual, the punishment will be a fine of not more than five times the value of the exports, or $1,000,000, whichever is greater. Id. § 2410(b)(1)(A).
Section 2410(b)(2)
It is a crime under section 2410(b)(2) for any person
- who is issued a validated license under the Export Administration Act for the export of any good or technology to a controlled country, and
- who has knowledge that the good or technology is being used by that country for military or intelligence gathering purposes contrary to the conditions under which the license was issued,
- to fail to report such use to the Secretary of Defense. Id. § 2410(b)(2).
If a violation of subsection (b)(2) is committed by an individual, the punishment will be
- a fine of not more than $250,000,
- imprisonment for not more than 10 years, or
- both. Id. § 2410(b)(2)(B)
If the violation is not committed by an individual, the punishment will be a fine of not more than five times the value of the exports, or $1,000,000, whichever is greater. Id. § 2410(b)(2)(A).
Section 2410(b)(3)
Section 2410(b)(3) applies to a person who possesses such goods or technology who violates either 50 U.S.C. Appx. §§ 2404 or 2405:
- with the intent to export such goods or technology in violation of an export control imposed under 50 U.S.C. Appx §§ 2404, 2405 or any regulation, order, or license issued with respect to such control, 50 U.S.C. Appx § 2410(b)(3)(A), or
- knowing or having reason to believe that the goods or technology would be so exported, id. § 2410(b)(3)(B).
In the case of a violation of an export control imposed under 50 U.S.C. Appx § 2404 (or any regulation, order, or license issued with respect to such control), the punishment will be that set forth in paragraph 50 U.S.C. Appx. § 2410(b)(1).
In the case of a violation of an export control imposed under 50 U.S.C. Appx § 2405 (or any regulation, order, or license issued with respect to such control), the punishment will be that set forth in subsection 50 U.S.C. Appx. §2410(a).
Section 2410(b)(4)
It is a violation of section 2410(b)(4) for any person to take any action with the intent to evade the provisions of this Act or any regulation, order, or license issued under this Act.
The punishment for doing so will be that set forth in 50 U.S.C. Appx. § 2410(a).
In the case of an evasion of an export control imposed under 50 U.S.C. Appx §§ 2404, or 2405 (or any regulation, order, or license issued with respect to such control), the punishment will be that set forth in 50 U.S.C. Appx. §2410(b)(1).
Case Law Interpreting Section 2410
An indictment for a violation of the Export Administration Act does not need to define "export," nor does it apparently need to specify how and from what point exports were made. United States v. Moller-Butcher, 560 F. Supp. 550, 555 (D. Mass. 1983). Furthermore, a defendant can be indicted for exporting without a proper license even when the indictment does not allege that the government is in compliance with 50 U.S.C. Appx. § 2402(2)(A) because section 2402(2)(A) are policy considerations and not elements of the offense. United States v. Mandel, 696 F. Supp. 505, 510 (E.D. Cal. 1988) rev'd on other grounds, 914 F.2d 1215 (9th Cir. 1990).
One of the essential elements in proving a violation of the Export Administration Act is the defendant's knowledge that the export was unlawful. United States v. Jamil, 707 F.2d 638, 642 (2d Cir. 1983). In order to establish that the defendant violated section 2410(a), the government is required to prove beyond a reasonable doubt that the defendant "knowingly exported or attempted to export a controlled commodity, without obtaining the appropriate export license." United States v. Shatterly, 971 F.2d 67, 73 (7th Cir. 1992).