Former NASA Employee in Ohio Charged with ITAR Violation

A former employee of the NASA Glenn Research Center in Cleveland has been charged with one count of violating the Arms Export Control Act (AECA) and the International Traffic in Arms regulations (ITAR).

An Information filed in the U.S. District Court for the Northern District of Ohio alleges that between 2000 and 2005, the defendant violated the AECA and the ITAR by knowingly and willfully exporting defense articles to South Korea without an export license obtained from the Department of State. The Information alleges that the defendant did not obtain a license prior to exporting infra red focal plane array detectors and infra red camera engines, which are on the U.S. Munitions List (USML). A second count of filing a false tax return was also included.

The charges against the former NASA employee come less than a week after the Sixth Circuit Court of Appeals (which has jurisdiction over cases from the federal courts in Kentucky, Michigan, Ohio, and Tennessee) upheld the conviction of former University of Tennessee professor John Roth on multiple counts of violating the AECA and the ITAR. The court of appeals rejected Roth’s argument that the jury in his trial should have been instructed that he could be convicted only if it found that “he knew the data and items he allegedly exported were listed on the United States Munitions List.” The court held that a conviction under the AECA does not require such evidence, but only that the defendant had “knowledge that the underlying action is unlawful.”

The court also rejected Roth’s contention that the ITAR-controlled plasma actuator testing data that he transferred to foreign nationals was not a defense article or defense services. The court ruled that the ITAR export controls extend to “all stages of defense projects that are covered by the [AECA], not just the final stages when military devices are directly involved.” The court noted that “technical data” and “defense articles” recognize that research is performed in multiple stages and that the ITAR applies to each stage. The court found that Roth’s argument ignored “the fact that the final goal of Phase II was to incorporate plasma actuators on military drone aircraft.”

The Roth decision is now the backdrop against which the recently charged former NASA employee must attempt to defend himself. While his actions appear to have been unknown to NASA, the case is yet another reminder for aerospace and defense companies and their employees to be knowledgeable about the ITAR regulations and that proper internal controls, starting with a written and enforced compliance policy, are in place to avoid even unknowing violations.