United States: D.C. Circuit Weighs In On Issue Of Willfulness In Prosecutions For Unlawful Exports

Last Updated: October 18 2019
Article by Torres Law, PLLC

What is the appropriate standard for determining whether a defendant has acted willfully in violation of the Arms Export Control Act ("AECA")? On August 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") weighed in on this question in U.S. v. Burden. Specifically, the court examined the definition of willfulness as it relates to the unlawful exporting of defense articles without a license.1

Exports and imports of defense articles are governed by the AECA.  The AECA serves the purpose of furthering the national security and foreign policy of the United States and the International Traffic in Arms Regulations ("ITAR") are the regulations that implement the AECA. In this case, the defendant was convicted for violating the AECA for exporting gun parts to Thailand without a license. During trial, the district court instructed the jury that in order to find that the defendant willfully violated the law, the jury must find that "the defendant knew that his conduct was unlawful."2 The jury found the defendant guilty and he appealed, arguing that his conviction should be overturned, in part, because the jury was provided with the improper standard required for a conviction. On appeal, the D.C. Circuit examined the willfulness standard provided in the district court's instruction.

The D.C. Circuit agreed with the district court, holding that a willful violation of the AECA requires only that a defendant have knowledge that his or her conduct is unlawful. The court determined that there was no heightened standard of intent required for a conviction. A defendant need not have read, been aware of, or have consulted the licensing provisions of the ITAR in order to be convicted for violating export licensing laws. In this case, the government showed that the defendant knew or had reason to know that exporting gun parts requires a license. This evidence was sufficient to meet the willfulness standard, without the need to show that the defendant had any specific knowledge of the relevant ITAR provisions. This standard articulated by the court is common to criminal prosecutions outside of licensing requirement cases and is also consistent with other federal circuits.3

While offering support for the widely accepted willfulness standard, the D.C. Circuit added a slight clarification. The court opined that a defendant who is charged with unlawful exporting may only be convicted if the government can show that the defendant participated in the charged unlawful activity. The acts for which an individual can be convicted must match the unlawful activity for which he or she is charged. In other words, to be convicted for violating the AECA, a defendant must know that he or she is engaging in an unlawful exportation without a license. They are not required to know the section of the ITAR that the conduct violates, but he or she must be aware that their conduct is unlawful.

Despite the clarification, the D.C. Circuit's ruling in this case seemingly does not break a great deal of new ground. Nevertheless, the decision has implications. It has a binding effect in the D.C. Circuit and provides persuasive support in other circuits that deal with unlawful export cases. Perhaps above all else, this decision reinforces the importance of ITAR compliance and the serious consequences that exist for those who choose not to follow export control laws and regulations.

A conviction for violations of export control laws and regulations merely requires knowledge that such conduct is unlawful. A defendant cannot argue that there is a heightened knowledge standard that applies to this type of case. Thus, while the D.C. Circuit's holding in U.S. v. Burden is largely consistent with previous rulings of other courts, it adds strong, additional support to the already accepted legal standard for AECA violations.


[1] U.S. v. Burden, 2019 WL 3917651 *1 (D.C. Cir. August 20, 2019).

[2] Id at *1.

[3] U.S. v. Burden, 2019 WL 3917651 *10-*11 (D.C. Cir. August 20, 2019); See United States v. Henry, 888 F.3d 589, 598-600 (2d Cir. 2018); United States v. Bishop, 740 F.3d 927, 932-33 (4th Cir. 2014); United States v. Chi Mak, 683 F.3d 1126, 1138 (9th Cir. 2012); United State v. Roth, 628 F.3d 827, 835 (6th Cir. 2011); United States v. Tsai, 954 F.2d 155, 160-62 (3d Cir. 1992); United States v. Murphy, 852 F.2d 1, 6-7 (1st Cir. 1988).

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