Our firm recently filed a detailed motion to dismiss federal criminal charges against our client, a respected scientist and U.S. citizen, who has been indicted for violating the U.S. imposed economic sanctions against Iran.
Our work on this case was covered by the Daily Report, the main legal publication in Georgia. The case has received significant attention due to the background of the people charged, and the circumstances of the alleged offense.
The indictment charges our client and others with willfully violating the Iranian Transactions and Sanctions Regulations (commonly known as ITSR or simply “the Iran sanctions”) based on allegations that they attempted to export “growth factors” to Iran without a license.
What are growth factors?
Growth factors are medical proteins and hormones used in medical research and therapy to stimulate cellular growth and healing in the human body. They play an important role in stem cell research and regenerative medicine and are generally widely available for purchase by the general public. The specific growth factors in this case have been linked to wound healing, kidney regeneration, and other medical uses. The nature of these materials is at the very center of this case.
The ITSR’s Export Ban and Exceptions
The government is accusing our client of trying to sneak these growth factors into Iran as a favor for her former professor knowing that doing so was prohibited under the ITSR, which bans exporting “any goods, technology, or services” to Iran. While the indictment essentially characterizes this as a smuggling case, the truth is not nearly as juicy.
When one talks about “exporting goods,” they’re usually talking about shipping products for sale in a foreign country. Similarly, courts have described the ITSR as aimed at “the activities of relatively sophisticated individuals who are deliberately engaged in international commerce.”
In our Motion to Dismiss, we argue that the ITSR does not apply in this case since our client wasn’t engaged in “exporting” any “goods.” Nowhere does the indictment allege that our client was taking growth factors to Iran in order to sell them or for any other commercial purpose. There is also no allegation that our client was paid to do take the growth factors or that she was “deliberately engaged in international commerce.”
We also argue in our Motion that, if the ITSR does apply, our client did not need a license to export the growth factors in this case under the ITSR’s license exceptions for “medicine” and “medical devices,” which are defined, in part, as any articles “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.”
As stated in our Motion, even the FBI has acknowledged that the small quantity growth factors in this case were not for a “nefarious purpose” and that growth factors are frequently used in “medical therapy.” Since these growth factors have well-known medical applications, our argument goes, our client was legally allowed to take them to Iran without a license.
Challenging the ITSR as unconstitutionally vague
While our Motion to Dismiss grapples with how the ITSR regulates materials like growth factors, we also make a broader, fundamental point in the Motion—that the ITSR is unconstitutionally vague as it has been applied to our client’s case.
Courts will dismiss charges brought under a particular law if that law is so vague that it fails to make clear “what conduct is prohibited” or encourages “arbitrary enforcement.” Whether a statute is vague depends on the specific facts of a case and whether a defendant would have known that their conduct was illegal under the challenged law.
We argue in our motion that the ITSR’s prohibition on exporting “goods” and its exemptions for medicine and medical devices are unconstitutionally vague because they don’t give the public sufficient notice of when a license is required, or more specifically, whether a license is required to take medical proteins to a friend in Iran. If the growth factors in this case don’t constitute “medicine” under the ITSR, it is not clear what does, and that is the point we make in our Motion.
Criminal Intent and Sanctions Violations
Ultimately, judges are reluctant to dismiss charges, especially at the federal level. While we are confident in our Motion to Dismiss, we are just as confident in our defense strategy if this case goes to trial.
Because the ITSR is so complex, a person can only be convicted of a crime for violating sanctions if they violated the sanctions “willfully.” In other words, a defendant can only be criminally convicted if they “knew, from whatever source, that a license was required for the articles involved,” and they exported those articles without a license anyway.
Most individuals and businesses that commonly export goods to foreign countries are likely to know about the ITSR’s prohibitions and other sanctions that restrict exporting goods to other countries. Accordingly, most cases include evidence of communications between exporters commenting on sanctions proving their criminal intent.
That’s simply not the case for our client, who is not in the business of exporting goods across the world. In this case, the government will have to prove beyond a reasonable doubt that a license was required to export medical growth factors to Iran, that our client knew about this licensing requirement, and that she intentionally broke the law despite that knowledge.
We don’t think the evidence supports the government’s allegations. We look forward to helping our client win this case before or during trial.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.