Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Export Scheme Conviction Upheld

The U.S. Ninth Circuit Court of Appeals has upheld the conviction of Zhi Yong Guo for knowingly and willingly conspiring to export and attempt to export controlled thermal imaging cameras without a license.

These thermal imaging cameras convert heat energy to live video, thereby allowing the user to see images day and night. The Bureau of Industry and Security (BIS) has jurisdiction over these licensed goods. Guo, an engineer who worked in China, owned a company that developed photoelectric technologies. As part of his business, he became interested in acquiring U.S.-made thermal imaging cameras, but was only able to succeed once he talked a U.S. friend into helping him.

Guo convinced his friend to purchase these restricted cameras from FLIR Systems. A second friend was enlisted who agreed to receive the cameras and export them, and received a commission for his troubles. FLIR’s export control staff became suspicious because these cameras were being delivered to a printing company and so alerted BIS. BIS began to track the first friend.

When Guo later came to the U.S., his first friend (Chao) helped him get a visa but also ordered more cameras to be shipped to the printer. Chao picked up the cameras and packed them into the shoes and clothing in his suitcase. A few days later Guo and Chao went to LAX with the intention to fly back to China. They surrendered their bags for screening and were arrested after they passed through security. Chao pled guilty and assisted the government in its case against Guo.

Guo challenged his conviction, arguing that the statute under which he was convicted was too vague. 50 U.S.C. § 705(a) provides for criminal penalties for anyone who "willfully commits, willfully attempts to commit, or willfully conspires to commit … an unlawful act …." Admitting the export classification and control regime is highly complex, the court nonetheless held the standard is not whether figuring out the regulations is easy. Rather, the question is did the defendant get fair notice about what is permitted and what is forbidden. The court went on to hold that the government had to prove two elements: 1) defendant knew beyond a reasonable doubt a license was required; and 2) defendant intended to violate the law. It seems apparent the outcome was influenced by the fact the thermal imaging cameras were hidden in personal effects. Such activity is seen as telegraphing a wish to conceal one’s actions.

 

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