AECA / ITAR Export Violations Defense Lawyer

An export control prosecution rarely opens with a dramatic event. It opens with a licensing question someone answered too quickly, a shipment stopped at a port, a technical drawing forwarded to a colleague abroad, or a grand jury subpoena asking a mid-sized manufacturer to produce its correspondence with a foreign customer. By the time agents identify themselves, the government has often been reading records for a long stretch, and much of the evidence it will rely on was created by the company itself.

22 U.S.C. § 2778, the Arms Export Control Act, is the statute those investigations run through. It authorizes control of the export and import of defense articles and defense services, requires registration and licensing for the activity it covers, and makes a willful violation of the section, or of a regulation issued under it, a federal crime. Prosecutions in the Eastern District of Virginia commonly involve engineers, small manufacturers, freight forwarders, procurement staff, and corporate managers rather than the arms traffickers the statute is popularly associated with.

Defense in these matters is technical before it is adversarial. Whether a particular item, drawing, or conversation was controlled at all is frequently contested, and it is often the question that decides the case. If you have received a subpoena, a target letter, or a request to sit for an interview about export activity, call (888) 437-7747.

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What the Arms Export Control Act Actually Controls

22 U.S.C. § 2778 does not itself list the goods it reaches. It authorizes the President to designate items and services as defense articles and defense services in furtherance of world peace and the security and foreign policy of the United States, and that designation is published as the United States Munitions List. The list is administered through implementing regulations, and it is those regulations, rather than the statute, that a company reads day to day.

The section also requires persons who engage in the business of manufacturing, exporting, or importing the covered articles, or who furnish the covered services, to register, and it requires a license or other written approval before a controlled export occurs. It reaches brokering activity as well, so an intermediary who arranges a transaction can fall inside the statute without ever handling the item.

Two features surprise people who come to the statute from ordinary commercial law. The first is that technical data is treated much like hardware, so a drawing, a specification, or a design discussion can be the controlled item. The second is that releasing controlled technical data to a foreign person can be treated as an export even when nobody and nothing crosses a border. Those two rules together explain why so many defendants are engineers and program managers rather than shippers.

The statute provides that a willful violation of the section, or of a regulation issued under it, is a criminal offense, and it authorizes forfeiture alongside the criminal penalty.

How These Investigations Begin and What They Look Like

Export cases are built from documents. The government typically holds the company licensing file, the shipping records, the internal messages, and often the correspondence of the foreign counterparty obtained through mutual legal assistance. Much of it is produced voluntarily, because the first contact is frequently a regulatory inquiry rather than a criminal one, and a company that answers a licensing agency questionnaire is producing evidence into a record a prosecutor may later read.

Parallel proceedings are the norm rather than the exception. An administrative matter, a civil penalty process, a suspension of export privileges, and a criminal investigation can all be moving at once, and statements made in one can be used in another. Counsel who steps in early is often working on sequencing before working on facts: what gets answered, in what order, and what has to wait.

Individual employees sit awkwardly inside that structure. A company may be cooperating, may have retained its own counsel, and may be producing material that describes an employee in terms the employee would dispute. An engineer who assumes that company counsel represents him personally can give an interview that becomes the strongest evidence against him. Separate representation matters early, not after charges.

When the government does move, it often moves on the paper it already holds, so the charging decision can arrive with little warning even though the investigation was long. Establishing what has already been produced is usually the first task on the defense side.

What the Government Has to Prove

A criminal charge under 22 U.S.C. § 2778 requires the government to establish that the item, service, or data at issue was within the controls the section authorizes, that the defendant engaged in conduct the section regulates, that the required license or written approval was absent, and that the defendant acted willfully.

Willfulness carries weight here that it does not carry under every federal statute. The government must show that the defendant knew the conduct was unlawful. It does not have to show that the defendant had read the regulation, could recite the control category, or knew which agency issued it. But a defendant who genuinely believed the item was uncontrolled, or who relied on a determination saying so, is disputing an element rather than offering an excuse.

The control status of the item is the other element that carries real weight. The statute provides that the designation of items as defense articles or defense services is not itself subject to judicial review, which means a defendant cannot ask the district court to set the designation aside. That is not the same as conceding the point. The government must still prove that this item, in this configuration, fell within the designation, and disputes about configuration, modification, commercial equivalence, and prior determinations are litigated as questions of fact.

The district court instructs the jury on those elements at the close of the case, drawing the instructions from the statutory text and settling their wording with the parties.

Where the Defense Usually Finds Traction

The strongest positions in these cases are rarely dramatic. They are usually built out of the record the company already created.

Jurisdictional classification comes first. Whether an item sits under this statute at all, or under the separate commercial control regime administered elsewhere in the executive branch, is a determination companies request and receive, and a prior determination that an item was not a defense article is evidence on the control element and on willfulness at the same time.

Exclusions and exemptions come next. Technical data already in the public domain, and the results of fundamental research published without restriction, sit outside the controls, and a good deal of contested material in engineering cases turns out to have been published, presented, or taught before the conduct charged.

Authorization is a third line. Licenses, agreements, and approvals are often broader or narrower than either side assumes on first reading, and the scope question is a matter of construing a written instrument rather than a credibility contest.

Compliance evidence is the fourth. Training records, screening logs, and legal advice sought and followed bear directly on whether the defendant knew the conduct was unlawful. Advice of counsel, where the facts support it, is presented as a challenge to willfulness rather than as a separate defense.

Finally, the ordinary criminal defenses apply. Venue, the reach of the statute over conduct abroad, the lawfulness of device searches at the border, and the sufficiency of the evidence tying a particular defendant to a particular shipment are all live in these prosecutions.

Classified Evidence and Collateral Exposure

Some export prosecutions touch classified material, either because the item is connected to a classified program or because the investigation used classified sources. When that happens the case runs on a second track. A statutory procedure governs how classified information is handled in a criminal case, and it determines what defense counsel may see, what may be substituted for the underlying material, and what the jury will ever hear. Counsel needs a clearance to take part in it, and the schedule the district court sets for that track often drives the schedule for everything else.

The consequences of an export case also extend well past the criminal judgment. Export privileges can be denied or suspended by administrative action independent of the prosecution. Security clearances are reconsidered and frequently lost. Contracting eligibility can be affected for the individual and for the employer. Professional licensure, immigration status for foreign national employees, and the ability to work on controlled programs at all can turn on the outcome.

Those consequences are not sentencing enhancements, and they are not always raised in the criminal court, but they are often what the client actually cares about. Resolving a criminal charge in a way that leaves the collateral exposure unaddressed can be a poor result even when the criminal disposition looks favorable. Charge selection, the language of a plea agreement, and the findings a court is asked to make all interact with those separate proceedings and are worth negotiating with them in view.

Frequently Asked Questions

What does 22 U.S.C. § 2778 make a crime?

The section authorizes control of the export and import of defense articles and defense services and requires registration and licensing for the activity it covers. It makes a willful violation of the section, or of a regulation issued under it, a federal criminal offense, and it authorizes forfeiture. The statute does not list the controlled items itself. That designation is published as the United States Munitions List and administered through implementing regulations.

Can technical data be an export?

Yes. Under the regime this statute authorizes, technical data such as drawings, specifications, and design information is controlled in much the same way as hardware. Releasing controlled technical data to a foreign person can be treated as an export even when the release happens inside the United States and nothing physically crosses a border. That rule is why engineers, researchers, and program managers appear as defendants in these prosecutions far more often than people expect.

Do I have to know the regulation to be guilty?

The government must prove that you acted willfully, which means it must show you knew your conduct was unlawful. It does not have to prove that you read the regulation, knew the control category, or could name the agency that issued it. A defendant who genuinely believed the item was uncontrolled, or who relied on a classification determination saying so, is contesting an element of the offense rather than offering an excuse.

Can I challenge whether the item belonged on the Munitions List?

The statute provides that the designation of items as defense articles or defense services is not subject to judicial review, so a district court will not set the designation aside in the criminal case. The government must still prove that the specific item, in its actual configuration, fell within that designation. Disputes about configuration, modification, commercial equivalence, and earlier jurisdiction determinations are argued as questions of fact for the jury.

What happens if my employer is also under investigation?

Company and employee interests diverge quickly in export matters. The company may be cooperating, producing records, and describing conduct in terms the employee would dispute, and company counsel represents the company rather than the individual. Statements an employee makes in an internal interview can reach the government. Separate representation, arranged before an interview rather than after charges, is usually the point at which an individual position is preserved.

Will a classified evidence procedure delay my case?

Often, yes. When classified material is involved, a separate statutory procedure governs what defense counsel may see, whether substitutions or summaries will stand in for the underlying material, and what reaches the jury. Counsel must hold a clearance to take part. The schedule the district court sets for that track frequently determines the pace of the rest of the case, including motions and any trial date.

What are the consequences beyond the criminal case?

Export privileges can be denied or suspended through administrative action that runs independently of the prosecution. Security clearances are commonly reconsidered and lost. Contracting eligibility, professional licensure, immigration status for foreign national employees, and the ability to work on controlled programs can all be affected. Those proceedings are separate from the criminal court, and the terms of a criminal disposition can influence how they come out.

Working With Law Offices Of SRIS, P.C.

Export control matters combine a technical classification question with federal criminal exposure, and they usually arrive with a documentary record already built. The firm approaches them by establishing what has already been produced, what the control status of the disputed item really is, and where the willfulness proof is thin.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

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This page provides general information about AECA and ITAR export violation charges under 22 U.S.C. § 2778 and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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An AECA ITAR export violations case is one part of national security & export control work, and our page on espionage act classified information defence covers the wider process.