Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Creating New Law?

In the past, we have commented on the expansion of tools available to federal authorities for the prosecution of export violations. Specifically, 18 U.S.C. § 554 allows prosecution of any individual or entity for fraudulently or knowingly exporting or sending from the U.S. or attempting to send any "merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both." Note the text underlined, which specifically calls for a predicate violation, i.e., you must violate some other law and then the government may prosecute you under 18 U.S.C. § 554

Now comes a new report of two men, one from Texas and one from New Jersey, who have pleaded guilty to violations of 18 U.S.C. § 554 arising out of false NAFTA certificates of origin. Between 2005 and 2009, one party was said to have sold $199,000 in documents that would serve to send to Mexico 243 shipments making claims for NAFTA benefits to which they are not entitled. What is remarkable about this case is that the plea agreement makes no reference to any other law being violated. Since it is generally understood that plea agreements are a compromise between the two sides, it makes one wonder about the totality of the actual charges against these two fellows that caused the lawyers and defendants to agree to this deal?

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