What is "willful" violation of AECA?

US v. Bishop:  Brian Bishop received a conviction for attempting to export small-arms ammunition to Amman, Jordan without a license in violation of the Arms Export Control Act, “AECA,” which the Fourth Circuit panel affirmed.

On appeal, Mr. Bishop raised the issue of whether the AECA requires specific intent.  The Fourth Circuit panel  discussed the difference between specific and general intent, which distinction “has been the source of a good deal of confusion,” quoting the Supreme Court in United States v. Bailey, 444 U.S. 394, 403 (1980).  Further, the panel states that “although courts often use the language of general and specific intent, scienter, and the related concept of mens rea interchangeably, [citation omitted] none of these terms by itself adequately defines willfulness under the AECA.”

The panel looked to the Supreme Court’s statutory interpretation in Bryan v. United States, 524 U.S. 184 (1998) for guidance.  In that case, the Supreme Court interpreted the Firearm Owners’ Protection Act, holding that “to establish a ‘willful’ violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful,” and rejecting the argument that the Government had to prove that a defendant knew of a federal licensing requirement.  The Fourth Circuit panel found a link between FOPA and AECA’s language and structure, stating “that Congress struck a balance between punishing those who intentionally violate the law and ensnaring individuals who make honest mistakes,” and noting that exporting ammunition to Jordan would strike someone of ordinary intelligence as potentially unlawful.  The Fourth Circuit found support from three other Circuits which squarely addressed the issue here.

With respect to the sufficiency of the evidence argument, the Fourth Circuit considered the evidence in the light most favorable to the prosecution: that Mr. Bishop had been trained in the rules and regulations surrounding the State Department’s transportation policies, he had received an email from that he could not transport ammunition and he was told explicitly that he could not keep firearms in Jordan.  Further, Mr. Bishop engaged in “numerous” acts of deception that indicated his awareness of wrongdoing.