United States v. Roth

628 F.3d 827, 2011 U.S. App. LEXIS 85, 2011 WL 13609
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 5, 2011
Docket09-5805
StatusPublished
Cited by23 cases

This text of 628 F.3d 827 (United States v. Roth) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Roth, 628 F.3d 827, 2011 U.S. App. LEXIS 85, 2011 WL 13609 (6th Cir. 2011).

Opinion

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This case involves violations of the Arms Export Control Act, which imposes export controls on “defense articles and services” without a license. Defendant-appellant John Roth worked as a consultant on a United States Air Force defense research project, which had been awarded to Atmospheric Glow Technologies, Inc. in Knoxville, Tennessee. The project entailed developing plasma technology for use on military aircraft. The government charged Roth with exporting data from the project on a trip to China and allowing two foreign nationals in Knoxville access to certain data and equipment in violation of the Act. A jury in United States District Court for the Eastern District of Tennessee convicted him of one count of conspiracy, fifteen counts of exporting defense articles and services without a license, and one count of wire fraud. He appeals his convictions. For the following reasons, we AFFIRM.

I. BACKGROUND

Roth is a published author in the field of plasma technology and was a professor of electrical engineering at the University of Tennessee at Knoxville during the events underlying this case. His former student, Daniel Sherman, was a principal at Atmospheric, of which Roth was a minority owner. The two men had co-authored a paper explaining how plasma technology devices can be used to affect electrohydrodynamic flow, a topic relating to aircraft flight.

In October 2003, the Air Force solicited contract proposals to develop plasma actuators that could be used to control the flight of small, subsonic, unmanned, military drone aircraft. The project would be broken down into Phase I, which entailed developing the design of the actuators, and Phase II, which entailed testing the actuators in a wind tunnel and on a non-military aircraft.

Atmospheric submitted the winning Phase I proposal and the Air Force awarded it the contract in May 2004 with Roth working as a consultant for the project. At or around that time, Sherman told Roth that the project would be paid for with “6.2” funds, which Roth knew implied that the research would be subject to export control laws that prohibit allowing access to the research outside of the United States or to foreign nationals unless a license has been obtained.

When Phase I was completed, Roth assisted Atmospheric in drafting the contract proposal for Phase II, which the Air Force also assigned to Atmospheric. Roth also assisted in writing, and signed, Task Order 102, a subcontract between him and Atmospheric acknowledging that Phase II work was subject to export controls. The Air Force identified some of the technical data reports in the Phase II contract as being export controlled, such as the Quar *830 terly Reports, Technology Transfer Reports, Final Report, and Test Plan. Jesse Crump, who worked for the Department of Defense, testified at trial that the data contained in the Weekly Reports and Quarterly Reports was unquestionably export controlled information, partly because it could only be intended for military use. Additionally, the contract and the subcontract incorporated federal regulations prohibiting foreign nationals from working on the project. Nevertheless, Roth proposed that two of his graduate research assistants — Truman Bonds, an American, and Xin Dai, a Chinese national- — -would work with him on the project. Sherman originally protested Dai’s involvement, so it was decided that Bonds was to work at Atmospheric on the export controlled data and Dai would work at the University without access to the export controlled data. Bonds testified at trial that the main reason for the separation of work was because of Dai’s foreign citizenship and the export controlled data. Roth did not think that Dai needed to be shielded from the data and Dai eventually gained access to the Weekly Reports from Atmospheric.

As part of the testing of the plasma actuators, a device called the Force Stand was developed for the project and installed in labs at Atmospheric and the University in the fall of 2005. It was used to test the actuators and gather data before proceeding to the stage in which the actuators would be tested in a wind tunnel. Dai worked with the Force Stand, and another graduate student named Sirous Nourgostar, an Iranian national, had access to it multiple times. Crump testified that the Force Stand was a defense article because it was designed specifically to collect data for this project, which had a military purpose.

In anticipation of Dai’s completion of his doctorate, Roth informed Sherman and Atmospheric that he intended to replace Dai with Nourgostar. After meeting with reluctance and opposition from Sherman because of Nourgostar’s foreign citizenship, and especially because of America’s contentious affairs with Iran, Roth sought support from Carolyn Webb, an administrator at the University who supervised research contracts. Webb worried that some parts of the project might concern export controlled data and referred Roth to Robin Witherspoon, the University’s officer in charge of export controls. At their initial meeting, Roth explained to Wither-spoon that the project was military in nature, but that the subject of the research was part of the public domain, which meant it was publicly available, and, thus, not export controlled. Witherspoon indicated that she was concerned that the data from the research was export controlled. She later followed up with Roth via e-mail and phone to explain that she had concluded that the data was export controlled. At that time, Dai was removed from the project. Additionally, knowing of Roth’s upcoming trip to lecture in China, Wither-spoon warned him that he could not take anything from Phase II abroad. In a similar vein, Sherman obtained agreement from Roth that he would not take any data from the project to China.

Aside from the Phase II project, Sherman and Atmospheric submitted another contract proposal in May 2005 to the Defense Advance Research Projects Agency, an arm of the Department of Defense that assigns and funds advanced weapons projects. Roth and Sherman spoke about Roth working on the project, and Roth sent Sherman a plan for part of the project that was incorporated into the Agency Proposal. Sherman e-mailed Roth a completed copy of the Proposal, which contained export controlled information from *831 the Boeing Company’s weapons division, and marked all but one of the pages with “Proprietary and Export Controlled Information.”

On May 16, 2006, Roth traveled to China to lecture at universities regarding his work. He took with him a paper copy of a Phase II Weekly Report, a flash drive with electronic copies of Phase II reports, and a laptop computer on which was stored a copy of the Agency Proposal. Neither Roth nor anyone else accessed any of the electronic files stored on the thumb drive or the laptop, but Roth had Dai send him a copy of a paper containing Phase II data by way of a Chinese professor’s e-mail address. Roth later gave Nourgostar access to the paper in the fall of 2007.

On May 20, 2008, a grand jury in United States District Court for the Eastern District of Tennessee returned an indictment against Roth and Atmospheric claiming that Roth had taken Phase II data and the Agency Proposal to China, and both Roth and Atmospheric had allowed Dai and Nourgostar access to the data and the Force Stand.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Daniel Trevino
7 F.4th 414 (Sixth Circuit, 2021)
State of Washington v. U.S. Dept. of State
996 F.3d 552 (Ninth Circuit, 2021)
United States v. Oseguera Gonzalez
District of Columbia, 2020
United States v. Steve Pritchard
964 F.3d 513 (Sixth Circuit, 2020)
United States v. Pheerayuth Burden
934 F.3d 675 (D.C. Circuit, 2019)
United States v. Mark Henry
888 F.3d 589 (Second Circuit, 2018)
United States v. Phillip Walsh
654 F. App'x 689 (Sixth Circuit, 2016)
United States v. Terrence Bell
575 F. App'x 598 (Sixth Circuit, 2014)
United States v. Jeffrey Reichert
747 F.3d 445 (Sixth Circuit, 2014)
United States v. Brian Bishop
740 F.3d 927 (Fourth Circuit, 2014)
United States v. Daryl Lawrence
735 F.3d 385 (Sixth Circuit, 2013)
United States v. Zhen Zhou Wu
711 F.3d 1 (First Circuit, 2013)
United States v. Surinder Dhaliwal
464 F. App'x 498 (Sixth Circuit, 2012)
Morrison v. B. Braun Medical Inc.
663 F.3d 251 (Sixth Circuit, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
628 F.3d 827, 2011 U.S. App. LEXIS 85, 2011 WL 13609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roth-ca6-2011.