ITAR Criminal Violations — Where The Less You Know Is Not Necessarily The Better

For decades, courts have wrangled with the "state of mind" needed to establish a criminal violation of the International Trafficking in Arms Regulations (ITAR). The question has been whether general knowledge of the illegality of the conduct is sufficient to sustain a criminal conviction or whether instead the government must prove that the defendant knew of the specific law or regulation that was violated. With the recent decision in United States v. Brian Keith Bishop, No. 13-4356, 2014 WL 292695 (4th Cir. Dec. 11, 2013), the Fourth Circuit joined its seven sister circuits, holding that proof of general knowledge of the illegality of the conduct is sufficient to convict a person of a willful violation of US export laws.

In Bishop, the defendant, a Foreign Service Officer in the US Department of State, was charged and convicted of attempting to ship small arms ammunition from Alabama to Amman, Jordan in violation of the Arms Export Control Act (AECA), 22 USC § 2778, when, as part of his move to his new State Department post in Jordan, he sent the ammunition together with his personal effects to the State Department's shipping company. Bishop appealed his conviction, arguing that the government failed to prove that he knew his conduct was illegal and that he knew that the ammunition he was attempting to export was listed on the United States Munitions List (USML). The government argued that it merely had to prove that Bishop knew that exporting ammunition was illegal as a general matter. Unfortunately for Bishop, the Fourth Circuit agreed with the government's argument that it was sufficient enough that Bishop believed that exporting ammunition was illegal, "even if unaccompanied by knowledge of the contents of the USML."

As other federal courts have done in the past, the Fourth Circuit relied heavily on the United States Supreme Court decision in Bryan v. United States (524 U.S. 184 1998) (in which the Supreme Court held that specific knowledge of a firearms licensing requirement under Firearm Owners' Protection Act (FOPA), codified at 18 U.S.C. §§ 921-929, was not required to find a criminal violation of FOPA), stating that "to establish a 'willful' violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful." In doing so, the Court distinguished the AECA from other "highly technical" statutes or regulations, finding instead that using a heightened standard of intent would be a step toward "an...