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It’s all over: Supreme court denies appeal for Professor Roth

There will be no more appeals for Professor John Reece Roth, as on October 3, 2011, the US Supreme Court decided not to hear his case. Roth is convicted of violating the U.S.’ Arms Export Control Act and the International Traffic in Arms Regulations, laws which govern the export of sensitive defense technologies.

Professor Roth

Professor Roth, now 73, was a professor of electrical engineer­ing at the University of Tennessee, and the head of the University’s Plasma Science Laboratory. He was working as a consultant for a company called Atmospheric Glow Technologies, Inc. (AGT). In May 2004, AGT was awarded a contract by the United States Air Force to develop plasma technology to control the flight of small, remotely piloted aerial drones. Professor Roth was subcontracted to work on the research and develop­ment project and hired two research assistants from his university to help him with the project, one of whom was a Chinese national. During the testing phase of the project, Professor Roth also hired an Iranian national.  Under both AECA and ITAR, it is illegal to ‘export’ goods or technology to certain countries, including China and Iran. Exporting does not necessarily mean the physical transfer of goods under these laws; emailing, communicating in person or by telephone or otherwise granting access to or exposing controlled technology to certain foreign nationals is also deemed to be an export.

Both the AGT employee Professor Roth was working with and the University’s officer in charge of export control matters advised Professor Roth that the project was subject to export controls. Professor Roth arrogantly ignored their advice and even travelled to China to give lectures on plasma physics at Chinese universities. He took project materials with him and he also took his computer, which contained ITAR controlled technical data files. He also took with him a proposal containing export controlled information from the Boeing Company’s weapons division. In addition, he directed his Chinese national research assistant to email research papers containing sensitive test data to a Chinese university official and he also gave copies of this report to his Iranian national research assistant.

Upon learning of Roth’s actions, US government officials seized materials from Roth's office and seized his laptop as he arrived home from the trip. Roth was charged on 15 counts of exporting defense articles and services and one count of conspiracy to export defense articles and services to foreign nationals.

Prosecutors claimed he was in violation of export controls by the mere act of taking the laptop with sensitive materials to China, even though forensic evidence showed that he did not open all of the sensitive files while he was in China. Roth initially testified that he didn’t think he was breaking the law because the research his team was doing was not proven to be successful. "My understanding was that it only applied to things that worked, and we had not shown that. We had a lot of work to do," Roth said. In fact, no evidence that U.S. national security was compromised was ever found. As far as U.S. law is concerned, however, that is beside the point.

On 3 September 2008, the jury found him guilty on all counts. "Today's guilty verdict should serve as a warning to anyone who knowingly discloses restricted U.S. military data to foreign nationals," said Patrick Rowan, Acting Assistant Attorney General for National Security.

The Roth case has shed light on the importance of compliance with export controls for universities and research institutions. "Our scientific and educational communities must take precautions to insure that technology and research are protected, when required, from disclosure to foreign governments." United States Attorney Russ Dedrick said in a statement after Roth’s conviction was announced.

In January 2009, Roth was sentenced to 48 months in prison and 2 further years of supervised release. Given the number of violations he was convicted of, the sentencing was quite lenient. A conspiracy conviction carries a maximum fine of $250,000 USD and a prison term of 5 year. Each AECA conviction carries a maximum penalty of $1million USD and ten years in prison.

If the judge had decided to really throw the book at Professor Roth, he could be up for 175 years in prison and over $15 million USD in fines. Despite the clemency in sentencing, his lawyers attempted several appeals.

In appeals, his lawyers tried to argue that Roth did not have specific knowledge of the US Munitions List (a list of technology controlled under the ITAR) and was therefore not wilfully violating any prohibition contained in the Munitions List. The court held that Roth did not have to have knowledge of the specific law he was violating in order to be in wilful violation of the law. It could be evidenced that he knew in broad terms what he was doing was illegal, and this was enough to uphold his conviction.

All appeals by his attorneys have been unsuccessful. On 3 October 2011, Professor Roth’s certiorari petition was upheld by the Supreme Court, meaning that the supreme court has decided not to hear his case. The brief from the Supreme Court can be viewed here.

Well, we all know the old saying “If you can’t be a good example, be a horrible warning.” That, unfortunately, is what Professor Roth now is. Academic institutions and research facilities that are involved in projects with controlled goods and technology should have a solid framework of policies, procedures, and oversight measures in place to ensure they don’t have their own version of professor Roth waiting to become an issue. Although the University was not found guilty of a violation, the reputation of the university was no doubt blemished by the actions of Professor Roth.

As export control laws are written into Australian Legislation in 2012, certain universities will need to ensure they are putting policies and procedures into place to ensure staff are fully compliant with the legislation.

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