ASIABIZBLOG

Few American companies target the American home with Chinese language mass mailings. Comcast, a major cable TV and internet provider in the U.S., is one of them, but its flyer is a disaster.

What exactly does 立省多達 $400 mean? A contraction of "immediately save more, up to $400," perhaps? But it ain't colloquial Chinese. No Chinese I showed this to could understand it without reference to the original English, thankfuly located on the reverse. And 貸記 as "credit to your bill?" 首選套餐 as "preferred package?" Simply execrable. The rest of the flyer is similarly unintelligible.

Vendors need to understand the first rule of marketing -- if they can't figure out what you're selling, they're not going to buy. Hire someone who knows the language and the culture before attempting to delve into an ethnic market. Cheap and easy translation of existing English-language copy, such as we see on this flyer, is a dead giveaway you haven't a clue what you're doing. And your potential customers will just walk away from you.

A shameful kow-tow.

"Our reputation has been damaged lately by these recalls," Thomas Debrowski, Mattel's executive vice president of worldwide operations, told China's quality watchdog chief, Li Changjiang, in the Chinese capital.

Mattel takes full responsibility for these recalls and apologizes personally to you, the Chinese people and all of our customers who received the toys."

"But it's important for everyone to understand that the vast majority of those products that we recalled were the result of a design flaw in Mattel's design, not through a manufacturing flaw in Chinese manufacturers."

As of 1300 UTC on the date of this posting, the Mattel website does not display any such statement.

Beware, all ye who dare to accuse.

UPDATE (2100 UTC):

Even the Wall Street Journal, that supposed bastion of the free market ideal, and its interviewees miss the point entirely:

it also would also seem logical for Mattel officials to take a respectful stance toward Chinese officials, as 65% of its products are built there. Drew Thompson, the director of China Studies at the Washington-based think thank, the Nixon Center, says maintaining good government relations is crucial for companies that want to build a lasting corporate presence in the country. "It's incredibly important," Mr. Thompson said. "It's everything." Bates Gill, who has worked as a China specialist at the Center for Strategic & International Studies, agrees, noting that while it's important to maintain good governmental relations in most countries, it might be more so in a country like China. "The government has a lot of control over the full range of factors of production in China," Mr. Gill said. "From land usage, regulatory questions, licensing, labor, all of these inputs for profitable production in China are, you know, controlled and can be manipulated by state authorities. So you have to be cautious and make sure that those relationships are positive."

Why is it that, when discussing China, shameful bootlicking subservience under threat, a requisite of behavior before the ancient Imperial court, is tolerated by the most modern of businessmen and academics? Why is it blithely explained away, simply as an act of necessity, even of survival? Lord Macartney refused to bow to Qian Long:

In Peking Macartney refused to kow-tow, or make the nine prostrations, unless a magistrate of equal rank would kneel, and bow nine times before a portrait of George III. Both sides declined to yield. Finally, not in the palace, but in a garden, informally, the British minister obtained audience of the emperor, but in reality he was received and treated as tribute-bearer from a vassal state. Trade was opened at Canton, but the British foreigners agreed to obey the local magistrates. In a word, there was no "extra-territoriality" as yet. The foreigners' place of business was called a "factory."

[Note: If enough readers ask for it, I will find the incident in Macartney's journal of the trip, published ca. 1793.]

Bravo for that Brit! Who has the spine now?

Mattel's apology should be publicly and vociferously deplored, not simply for the craven act itself, then for its assuredly lasting after-effects upon other foreign firms, who will now find themselves pressured to act similarly, at pain of who knows what sanction.

I regret to say I can not commiserate with Mattel executives on their decision to cave. Instead, this is a lesson to all those who would foolishly place most of their eggs in one basket. I've been saying it for years, boys, China is a tough town. They play for keeps. Diversify or suffer. Or they're going to have you by the short and curlies. If they don't already.

Over the last few years, the American ardor for China has cooled. Even I need a sweater. In speaking with Americans, the topic often turns to China. My partner in conversation, whoever it may be -- home improvement contractor, local attorney, bank teller, teacher -- is now, as a rule, adamant that China is not a friend. Of course, that person may delight in friendships with individual Chinese, but to many Americans, China has become more than just an adversary. And I believe I am right in saying that Chinese are similarly disposed towards the U.S. A dreadful state of affairs.

China has become a focal lens for the distress, anger and helplessness that Americans can no longer tolerate directing inwardly. No longer do we read encomia touting the virtues of ancient Chinese philosophies practiced in modern life, the beneficially high rate of savings and lack of debt, the care and respect towards the elderly, the veneration of education, the tolerance for long hours and hard work.

Instead, we read only that Chinese are rapacious money-makers who intentionally employ toxic materials to improve profit, dirty spitting pedestrians who copiously litter with no sense of public morality, brutal authoritarians who control the freedom of speech, association and worship that Americans believe God gave Man, and the like.

Now, mind you, there is truth in both viewpoints. But, over the past few years, Americans have focused on the latter, seemingly in forbearance of all knowledge of the former. There should at least be balance.

Historically, Americans have always expected that the next generation would enjoy an improvement in the quality of life -- until my generation, who expect its decline. The American senses narrowing opportunity amid heightened competition. What can one truly eat from the communal pie that always seems to shrink?

The hackneyed phrase is "the American dream." It originally referred to the desire of lifelong tenants to own their own home. It now seems to be used to describe a paradigmatically American ideal of plenty, a cornucopia of whatever the individual would wish for himself. But for the American individual today, there is no boom, only the residual smoke of a bust. And someone must be held to blame. Why not China? They're enjoying -- so goes the thought -- an incredible run, and entirely at our expense.

Even long held American commercial tenets may go the way of the perpetual Republican vow to cut taxes. According to this WSJ poll, even the Republicans are beginning to sluff off the centuries old hallmark of "free trade."

By a nearly two-to-one margin, Republican voters believe free trade is bad for the U.S. economy, a shift in opinion that mirrors Democratic views and suggests trade deals could face high hurdles under a new president.

Incredibly, China obliquely takes its licks in this article devoted to American politics:

We're seeing a lot of jobs farmed out," said Mr. Pirtle, whose father works for General Motors Corp. Rankled by reports of safety problems with Chinese imports, he added, "The stuff we are getting, looking at all the recalls, to be quite honest, it's junk.

Mr. Pirtle's comment is sadly typical in American society today. If it's junk, why are we're buying it? If it's of poor quality, why have we eagerly exported the work to cultures where standards are different? If it's unsafe, why have we authorized a branch of the federal government, proven time and again to be incompetent or incapable in so many aspects of life, to perform tasks it can't even begin to complete?

The decisions Americans have made, as a people, over the past generation are more the cause of our predicament than anything manufacturers across the globe could have possibly done. We will have rid ourselves of what we value most before it is over. But, for the instant moment, we deny ourselves the serious critical look at our own ideas and actions, which require far greater correction than we demand of our neighbors.

Baseball for the Chinese masses? The State Department sending Cal Ripken to Shanghai? Yes, yes, I know something of the hallowed traditions of Japanese baseball and more recently the Taiwanese leagues. Those were begun on sandlots by boys imitating the American soldiers stationed on military bases, and they grew organically.

In the case of China, as with so much else, Chinese "interest" in the sport, of which there is extraordinarily little, is a top down affair, undoubtedly spurred on by the highest levels of sporting administration simply as a result of baseball's inclusion as an Olympic sport. Although eliminated from the 2012 Games, baseball may return in 2016. Surely, there is some long-term planning going on in the General Administration of Sport.

From the American State Department's viewpoint, what is the value in assisting a fledgling Chinese Olympic effort? Not, apparently, the expansion of commerce for sporting goods makers, whose manufacturing base has been China for many years. (Think about it, Mr. Rawlings said to his underlings, a glove for every boy in China! If it had never been said aloud, it was surely thought.)

An effort in fostering Friendship between the Great Chinese People and the Great American People? (That phrase circa 1975.) If so, the substance of our relations has not ventured far from Ping-Pong Diplomacy, but surely it has.

It looks more like a charm offensive. If media is to be believed, and I am not suggesting it should, much of the world has recently come to think very poorly of America. Baseball, strongly identified with the American, is a happy game -- a typically American pastime that might be used to get good press at a time of extraordinary need.

Baseball in China -- bizzare meeting place of the American tendency to proselytize; a State Department whose public relations operates in crisis mode; an aggresively competitive Chinese officialdom; and little boys who just want to play. I hope the kids have at least some fun while the adults make use of them for their own ends.

From the New York Times: China Agrees to Post U.S. Safety Officials in Its Food Factories.

Embedded, like Judith Miller in Iraq?

Michael O. Leavitt, secretary of health and human services, said he expected that Food and Drug Administration officials would eventually be embedded in China’s food safety bureaucracy to help train Chinese officials and keep records on their inspections.

Did Mr. Leavitt make use of the word "embedded" in conversation with the interviewing journalist, Steven Weisman? Or did Mr. Weisman himself choose that word, pregnant with negative connotation, while lacking a direct quotation from Mr. Leavitt?

China and the United States, seeking to ease the furor over the safety of food exports, signed an agreement Tuesday calling for a greater American role in certifying and inspecting Chinese food products, including an increased presence of American officials at Chinese production plants.

This should help, shouldn't it? English speaking inspectors in an entirely Chinese environment. Many thousands of factories to be monitored -- extraordinary cost of bringing American inspectors to China, housing and feeding them, etc...

This agreement will provide an opportunity to have our people here on a continuous basis with expertise so that we can work with our Chinese colleagues in helping to develop good practices,” Dr. von Eschenbach said.

People is plural, meaning at least two. But the precise number of inspectors was not actually specified.

American officials said that the agreement did not cover all the food products sought for tighter inspections, but that it could be expanded. It is to cover some preserved foods, pet food ingredients and farm-raised fish, all products that the United States has said were tainted.

But, wait! Only a few food groups would undergo any inspection at all.

One may conclude that this initiative has been a major failure, from conception to implementation, on the part of American food and safety officials. Can one, however, consider this a public relations success?

Having observed several fish farms in China -- shockingly unclean conditions -- I have always avoided the purchase of farmed fish and fish products originating anywhere in Asia, except for Japan. David Barboza's article strongly suggests that you do, too:

“Our waters here are filthy,” said Ye Chao, an eel and shrimp farmer who has 20 giant ponds in western Fuqing. “There are simply too many aquaculture farms in this area. They’re all discharging water here, fouling up other farms.”

One nervously laughs, hearing of outlandish harvesting methods illiterate peasants use on fish they themselves consume. Thai farmers using cheap pesticides to kill whole schools of fish for easy netting; Cambodians using grenades.

We absolutely can not trust the safety of seafood raised on farms in China. Regulatory schema adopted by the U.S. can not possibly be adequate protection. The FDA has been as ineffective over the past 10 years as any branch of the federal government, having been completely aware of the breadth of this problem, with evidently little movement. Only 210 import refusals for illegal drugs for the entire U.S.? (However, the FDA appears to be pleased to announce its advice on the safe sources of puffer fish.)

The Wall Street Journal reports:

A Chinese seafood company exempted from U.S. safety inspections under a pilot project has been cited by Canada after a cancer-causing antibiotic was detected in a shipment of frozen shrimp.

Wonder how that one got by us?

Only about 1% of most imports are subject to FDA inspections. But the FDA blocks all imports of five types of farm-raised seafood from China -- shrimp, catfish, eel, basa and dace -- until they are proved to be free or contaminants. Importers pay for the tests, which run up to $3,000 a shipment.

But tilapia, monkfish and pollock from China appear on our grocery shelves more often than any of these, except for shrimp. And shippers can become expertly creative at misnaming their exports. As Mr. Barboza writes, farmers are not about to give up on their livelihoods simply for the sake of the health of those who buy from them:

Farmers have coped with the toxic waters by mixing illegal veterinary drugs and pesticides into fish feed, which helps keep their stocks alive yet leaves poisonous and carcinogenic residues in seafood, posing health threats to consumers.

Close your wallet to these products. You can have no idea what you might ingest. On the other hand, I know what I am eating when I fry up the bluefish I caught as they ran the waters off Montauk in late summer.

Many small and mid-sized manufacturers in the United States are unaware that their exports may be subject to Export Administration Regulations (EAR). The implementation of those regulations is overseen by the Commerce Department’s Bureau of Industry and Security (BIS), and enforced through that bureau's Office of Export Enforcement (OEE). BIS is joined by several other federal departments with various responsibilities in the area of export control.

Not only are dual-use products -- items with military and commercial uses -- subject to the EAR, but many solely commercial products as well. Does your export require a license? The answer to that question is not necessarily straightforward, given the complexity of the regulations, which have been strengthened since 9/11. However, the importance of reviewing your export in light of the EAR cannot be understated.

To that end, I've devoted today's post to several China-related enforcement actions from the BIS website, which make for pretty interesting reading. More on export control law -- especially the topic of “deemed export” about which I've written here -- in future posts. I have dealt with China export issues and welcome inquiries from companies dealing with that and related issues.

WMD and Missile Proliferation

Industrial Furnace to China – On October 4, 2006, William Kovacs, president of Elatec Technology Corporation, was sentenced to 12 months and one day imprisonment, three years’ supervised release, and 300 hours community service in connection with the export of an industrial furnace to a proliferation entity of concern in China. On May 28, 2004, Kovacs and Elatec pled guilty to charges that they conspired to violate U.S. export licensing requirements in connection with this export. Elatec’s export license application for this transaction had previously been denied by BIS due to missile technology concerns. An associate, Stephen Midgley, separately pled guilty on January 10, 2005, to falsely stating in export documents that the furnace did not require an export license when the goods were shipped to China. Midgley was sentenced to one year probation, 120 hours community service and a $1,500 criminal fine. BIS assessed Midgley a $5,000 ($4,000 suspended) administrative penalty as part of an agreement with Midgley to settle charges related to this unlicensed export. OEE and ICE jointly conducted this investigation.

Nickel Powder to Taiwan – On October 11, 2007, Theresa Chang was sentenced to three years’ probation and to pay a $5,000 criminal fine. On June 21, 2007, Chang pled guilty to one count of making false statements related to the export of nickel powder controlled for nuclear proliferation reasons to Taiwan without an export license.

Thermal Insulation Blankets to China – On May 17, 2005, Vladimir Alexanyan, owner of Valtex International, was ordered to pay a $12,000 criminal fine, was sentenced to three years’ probation, and was ordered to refrain from any international activities or trade for the term of his probation. Valtex International was ordered to pay a $250,000 criminal fine. In February 2005, Vladimir Alexanyan and Valtex pled guilty to export violations and false statements in connection with the attempted export of satellite/missile insulation blankets to the Chinese Academy of Space Technology in Beijing. BIS had previously rejected Valtex’s application for an export license for these items. The goods were seized in San Francisco before their shipment from the U.S. BIS assessed Alexanyan an $88,000 administrative penalty and Valtex a $77,000 administrative penalty to settle charges related to this attempted unlicensed export. Both Valtex and Alexanyan are also subject to five year denials of export privileges to China. Further, Valtex agreed to implement an export management system. OEE and ICE jointly conducted this investigation.

Computer Chips with Guidance System Applications to China – On October 6, 2004, Ting-Ih Hsu, a naturalized U.S. citizen and president of Azure Systems, Inc., and Hai Lin Nee, a Chinese citizen and an employee of Azure, were sentenced to three years’ probation for false statements in connection with the illegal export of low-noise amplifier chips to China. The defendants falsely described the goods as “transistors” in export documents. These goods have application in the U.S. Hellfire missile. OEE and ICE jointly conducted this investigation.

Unauthorized Military Use

National Security Controlled Items to China – On May 1, 2006, criminal sentences were handed down against four former employees of Manten Electronics in connection with their illegal exports of millions of dollars worth of sensitive national security controlled items, with applications in radar, electronic warfare and communications systems, to state-sponsored institutes in China. Weibu Xu, aka Xu Weibu, aka Kevin Xu, was sentenced to 44 months’ imprisonment and two years’ probation. Hao Li Chen, aka Ali Chan, was sentenced to 30 months’ imprisonment and two years’ probation. Xiu Ling Chen, aka Linda Chen, was sentenced to 18 months’ imprisonment and two years’ probation. Kwan Chun Chan, aka Jenny Chan, was sentenced to six months’ home confinement and two years’ probation. OEE, the FBI, and ICE jointly conducted this investigation.

Attempted Export of Encryption Modules to Taiwan – On March 7, 2006, Ching Kan Wang, President/owner China May, Inc. of Hollywood, Florida was sentenced to prison for one year and one day. Wang pled guilty to conspiracy to violate the IEEPA for his role in attempting to acquire sensitive communication encryption modules for export to Taiwan without the required BIS export licenses. OEE and ICE jointly conducted this investigation.

National Security Controlled Electronic Equipment to China – On January 18, 2006, Ning Wen, operating Wen Enterprises, was sentenced following his conviction at trial on September 21, 2005 to 60 months’ imprisonment, two years’ supervised release and a $50,000 criminal fine for conspiracy to illegally export more than $500,000 worth of controlled electronic components to Beijing Rich Linscience Electronics in China. On December 21, 2005, Hailin Lin was sentenced to 42 months’ imprisonment and a $50,000 criminal fine; and on July 25, 2005, Jian Guo Qu was sentenced to 46 months’ imprisonment (later reduced to 22 months), and two years’ supervised release for their roles in these exports. OEE, the FBI, the Internal Revenue Service, and ICE jointly conducted this investigation.

Satellite and Radar Technology to China – On September 28, 2005, Zhaoxin Zhu of Shenzhen, China was sentenced to 24 months’ imprisonment and three years’ supervised release for conspiring to purchase controlled satellite and radar technology for illegal export to China. Zhu negotiated with undercover federal agents to purchase a variety of sensitive goods, including traveling wave tubes with satellite and radar applications, for export to China. OEE and ICE jointly conducted this investigation.

Low Noise Amplifiers to China – On August 17, 2005, Univision, operated by Zheng Zheng, was sentenced to a $1,000 criminal fine for false statements in connection with the export of low noise amplifiers, controlled for national security reasons, to China without obtaining the required license from the Department of Commerce. On June 28, 2005, Zheng was also sentenced to a $1,000 criminal fine for this violation. OEE and ICE jointly conducted this investigation.

False Statements on Export Documents; Microwave Amplifiers to China – On August 22, 2007, Norsal Export and its President Norman Spector agreed to pay administrative fines to settled charges that between November 9, 2000 and January 9, 2003, Norsal and Spector each committed forty-four violations of the Export Administration Regulations by exporting microwave amplifiers to the China with knowledge that violations of the EAR would occur in connection with the items. BIS also charged that the parties filed false Shipper’s Export Declarations in support of the unlicensed exports. To settle the charges, Norsal agreed to a $462,000 administrative fine, all of which will be suspended for a period of one year, and then waived, provided that no future violations of the EAR occur. Spector also agreed to an administrative fine of $462,000, of which $442,000 will be suspended on the same terms, and $22,000 is due in payment. In addition, both Norsal and Spector have been subjected to a twenty-five year denial of export privileges. In February 2005, Spector International, dba Norsal Export, was sentenced to a $57,000 criminal fine in connection with providing false information on Shipper’s Export Declarations regarding unlicensed exports of microwave amplifiers with potential radar applications and controlled for national security reasons, to China.

Deemed Exports

Video Amplifiers to China/National Security Controlled Technology to Chinese Nationals – On July 25, 2005, Charlie Kuan, former president of Suntek Microwave, Newark, California, was sentenced to 12 months and one day imprisonment and two years’ supervised release for failure to obtain required export licenses for shipments of detector log video amplifiers (DLVA), items controlled for national security reasons, to Chengdu Jeway Microwave Telecommunications, a company controlled by the Chinese government. Suntek, which was also charged with failing to obtain export licenses under the deemed export provisions of the EAR, was sentenced to a $339,000 criminal fine. BIS additionally assessed administrative penalties of $275,000 against Suntek, $187,000 against Kuan, and 20 year denials of export privileges against both parties in connection with these violations.

National Security Controlled Technology to Chinese and Ukrainian Nationals – In November 2004, BIS assessed Fujitsu Network Communications, Inc. an administrative penalty of $125,000 as part of an agreement with Fujitsu to settle charges related to unlicensed deemed exports to foreign nationals. In particular, BIS alleged that Fujitsu failed to obtain the export licenses required for transferring commercial digital fiber-optic transmission and broadband switching technology to Chinese and Ukrainian nationals. The applicable technology is subject to national security controls.

National Security Controlled Items and Technology to China – In September 2004, BIS assessed a $560,000 administrative penalty against Lattice Semiconductor Corporation as part of an agreement to settle charges of unlicensed exports of extended range programmable logic devices and technical data to China and the deemed export of controlled technology to Chinese nationals. The items and technology are controlled for national security reasons.

National Security Controlled Technology to Chinese and Iranian Nationals – In April 2004, BIS assessed New Focus, Inc., an administrative penalty of $200,000 as part of an agreement with New Focus to settle charges related to unlicensed deemed exports to foreign nationals and other exports. In particular, BIS alleged that New Focus failed to obtain the export licenses required for transferring technology to two Iranian nationals and one Chinese national who, in the course of their employment in the U.S., were exposed to national security controlled manufacturing technology. BIS also alleged that New Focus failed to obtain the required export licenses for shipments of national security controlled amplifiers to the Czech Republic, Singapore, and Chile.

[Editor's note: Doug Jacobson has graciously provided the text of today's post. I recommend readers visit his International Trade Law News blog, well-written, informative and worth your time. Doug Jacobson is a partner in the Washington, DC office of the law firm of Strasburger & Price (www.strasburger.com) and serves as chairperson of the firm’s international trade compliance practice. Doug has extensive experience representing companies in a wide range of international trade regulatory and enforcement matters, including dual-use and defense-related export controls, trade sanctions, customs, Foreign Corrupt Practices Act and and antiboycott issues. Doug is also the founder and editor of the International Trade Law News blog (www.tradelawnews.com).

The Air Force did not like the idea of a Chinese national working on top-secret unmanned drone technology. The Department of Justice prosecuted the research student's professor, who had assigned him his work. The professor was convicted this month. What next? Our guest author today takes up the story from there.]

Attorneys for Convicted Professor File Motions for Judgment of Acquittal and New Trial

The attorneys for former University of Tennessee Professor J. Reece Roth, who was recently convicted of violating the Arms Export Control Act (AECA) and wire fraud, have filed motions for a judgment of acquittal and a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Such motions are routinely filed by defendants who have been convicted in order to set up the legal issues for appeal, but are rarely granted.

Summary of Arguments for Judgment of Acquittal

Roth's Motion for Judgment of Acquittal is based on two grounds. First, defense counsel claims that the data generated by the contracts that Roth and his graduate students were working on was neither a “defense article” or “technical data” relating to a “defense article” as those terms are defined in Category VIII of the United States Munitions List (USML). Second, defense counsel contends that the evidence presented in this case was not sufficient to convict Roth for willfully violating the AECA.

The crux of the defense argument is that the certifications made by the Directorate of Defense Trade Controls (DDTC) regarding the classification of the data and other items that Roth was working on and exported to China were incorrect. For example, the Memorandum of Law in Support of the Motion for Judgment of Acquittal notes that the DDTC staff member that made the certifications initially determined that "none of the items which were subject to the Indictment were included on the USML and thus were not defense articles or technical data relating thereto." Specifically, counsel stated that the defense articles and technical data at issue in this case were not "directly related to an aircraft specifically designed, modified, or equipped for military purposes," the test for determining whether an item is subject to the jurisdiction of the ITAR or not.

Defense counsel noted that it "is fair to say there was less than unanimity in the proof regarding the particular defense article that the data and [defense article] fell within, although the jury was charged and returned a verdict premised solely on Category VIII."

In addition, Roth's counsel contends that the provision in the AECA that precludes judicial review of the "designation of items as defense articles or services" (22 USC 2278) does not exempt certifications from the State Department that particular articles or technical data are within USML Category VIII. In addition to discussing a few cases where the courts appeared to exercise judicial review of State Department certifications, counsel also noted that a "construction of section 2778(h) that would preclude judicial review of the adequacy of the evidence that an item constitutes a defense article would violate the Constitutional due process requirement that criminal statutes provide 'fair warning.'"

Finally, Roth's attorneys stated that the evidence presented in this case was insufficient to establish that Professor Roth acted willfully and with specific intent, the requirement for a conviction under the AECA and wire fraud statutes. For example, it was noted that in addition to there being considerable uncertainty as to whether the defense articles and technical data were defense articles or not, Roth's "efforts to comply with his inaccurate understanding of this complex regulatory scheme demonstrate a lack of understanding of the law that persisted throughout the time period in question."

Summary of Arguments for New Trial

In arguing for a new trial, Roth's counsel claimed that a new trial should be granted because the trial judge did not include in the jury instructions a proposed instruction on ignorance of the law and the file to include such an instruction "resulted in prejudice to the Defendant." The proposed jury instruction read as follows:

In order for the government to show that Defendant violated the Arms Export Control Act, it must prove beyond a reasonable doubt that Defendant knowingly and willfully violated the Arms Export Control Act. Defendant acted knowingly and willfully if he knew he was unlawfully exporting technical data on the United States Munitions List. An innocent or negligent mistake by the Defendant is insufficient to support a finding of a knowing and willful export. So if Defendant was ignorant of the requirements of the Arms Export Control Act or was aware of the requirements of the Act but believed that he was complying with those requirements, he did not act knowingly or willfully, and you must find him not guilty.

Citing several cases as precedent, defense counsel argued that because ignorance of the law is a defense to the AECA, the issue should have been put before the jury and failure to do so is grounds for a new trial.

Needless to say, the U.S. Government will present a different version of the law in their responses to Roth's motions. Assuming that these motions are not granted and the convictions are appealed by Professor Roth, the appellate decisions could lead to important legal precedent and clarification on these issues for companies and academic institutions subject to export controls.

Author's Note: Thanks to a loyal reader for providing copies of the motions filed by Roth's counsel.

I know it has nothing to do with China, but it's just too funny to pass up.