before we start this morning i'd like to thank judge sharon keenan of the southern district of new york an icon of the federal judiciary for joining us and helping us this thank you as all ours we have several matters on the regular argument counter to day three of which united states v nasser sixteen three four nine eight united states i one five three ninety five to the defendant in this case was a mechanic can you hear me i'm not sure i reach it ok he was a mechanical engineer at three u s companies in the us between two thousand and one and two thousand and thirteen he was a tech guy he was an importer exporter and he was an iranian operative and over the course of his employment he took home proprietary documents he admitted this was a stupid mistake because of this because he shipped those documents from connecticut to california he was originally indicted with the interstate transportation of stolen property a crime that only requires that he knew that the documents were stolen and i s and likely wouldn't be here today but the government's switch gears and charged with a far more serious and far more complex offense a violation of the arms control act which d after he was laid off from pratt and whitney he attempted to export a one hundred three put page power point presentation a document that the state department later designated as a defense article on the list and he clue that in forty four boxes he was shipping home to himself in iran via his brother in law's address though the government has depicted dr has he is a terrible threat to u s security the fact is in this case there is no evidence that in two thousand and thirteen has he shared that power point with anyone in iran or any other dark technical data with anyone in iran that he even had a job offer in time and i tempted to send it to iran we wouldn't be here either right i really thank you let's talk about the only reason i reacted the only reason i raise that is because there's a lot of discussion throughout the government's brief and throughout the government sentencing members something that even come close to admitting that when he packed up that power point in two thousand and thirteen he knew he was violating aca neither the courtney or the prosecutor ever asked him if he knew there was a munitions list if he knew that the hundred three page power point was on the munitions list or if you knew he was violating aca because he included that para point in the books and papers he was sending home to himself in iran because he's an intelligent man he knew it was wrong to take on proprietary documents and he knew wrong to take on technical documents some of which were stamped export control right but is a far i understand your point is that he essentially knew and believed that he had violated the earlier indictment yes why didn't he seek to have his plea withdraw or either before sentence or after since he's you know this comes on appeal after he's been sentenced and i look at it as i would perhaps a person wish and wishing to withdraw his plea after sentence because that's essentially what we're doing well i think i have two answers to that one i'm a seem a little pat but i don't really know whether his attorney ever told to me could withdraw his but the more important and at the sentencing itself we didn't clarify things you know if the sentencing had focused in on the two thousand and thirteen export violation then there may have been that a moment but instead because the government was seeking an upward departure it really focused in on the two thousand and nine parikh point presentation and on his betrayal of his corporate employer so by the time he got to sentencing what he said and you know it is and let me see if i can if i can find it here this is at sentencing showing he still confused about the crime he explained to the court that he was wrong because he broke the proprietary confidence of the company by sharing a power point presentation with u s companies within the iranian university in two thousand and nine if we had as i say some sort of there is i think i'd like to address that by saying yes this statute requires a willful violation that means you have to know that you're violating this statute in the context of the arms x or everybody who violates d six ninety eight i have three copies for the court and a copy for the government to us to go back seven eighty nine f three g six ninety eight where the seventh circuit which is had dealt with this precise kate has this to say about aca in particular which is a very very complicated technical statute and this is i'm going to read this because i think this answers that question and i may be wrong but i think it does ordinarily a person is conclusively presumed to know the law which is to say that ignorance of the law that one has violated is not a defense to conviction for the violation but this principle sensible when a person is bound to know that what he is doing is interpret willfully in twenty two u s c two seven seven eight to require knowledge by the defendant in this case that he needed a license to export the munitions that he exported good at the beginning of the play it was also a stipulation conduct but at the same yes although i would say the stipulation of conduct like much of this case is muddled because it includes the two thousand and nine conduct the betrayal of the employers it's not that it doesn't situation and then make of it what you will on the pages that we were just referencing in connection with his q shouldn't he since the understood that what he was doing was illegal can we take all of that together collectively into consideration to assess whether or not this was a legal feel you should not in this case your honor because there's sixty pages more that reflect total confusion and even though this is plain air it's still a constitutional or quire meant that the judge get from the defendant a confession to the elements of the crime to which he is pleading guilty it's not just a r it's willfully in the sense that there had to be knowledge that he needed a license a license means that you have to have permission to do it and he needed he knew we couldn't send it out without some permission now that's what that's what knowledge of your needing a license is that doesn't mean that it doesn't tie into a specific act that he must have read didn't own an advance somehow or somebody told him about this particular  act normally that's not required it isn't certain instances where you've got a pure case of mallam malum prohibitum but here's a case where you've got arms export control all over these documents lot of expert control x they're not all they don't all fall into the arms export control act all the export control over a number of reasons that's my point is it doesn't have to if if it's the arms or export control act or it's the international export of goods act or some other act that prohibits interstate going or national transport and he doesn't know which one but he knows that it is prohibited because he needs a license that's seems to me in the seventh circuit and were so and then in this case go back they do say you have to this is a complex regulatory scheme sort of like cheek and rand grad school if the supreme court case is not a simple case and there and it isn't and that at that point it seems to me he's been informed and he has enough knowledge to know that if he does if he does violate if he does and these goods that they are controlled  and he's acting in ignorance of that i think this calls to mind in my in my mind so a lot of these drug cases where the defendant knows he's dealing in the paddock but the police are not valid because he pleased he says well i d is that you did was wrong particularly when the plea itself or flix so much confusion and confusion by the court is well it's a lot in the question when you say have to know what you did was wrong because you can know what you did was shipping shipping money shipping cash and going to the bank and depositing a certain amount of money you have to you have to know that because people deposit money all the time but people do not ship goods that are subject to export control all the time well he was shipping because you know and i'll be frank i had to check whether in fact if you if you're a dual citizen and you pack up your belongings and send them home to yourself in iran are you is that an actual export it's not that clear i mean it's not like it was going to in a defense contract a university another employer who is shipping them home to himself i don't think it's crystal clear that that's a that that's a wrong and not everything that you send iran is a wrong and they're just plenty of things you can say is an exemption for instance for household belongings and household the wrongs in this this is a very complex area of the law and i think it was up to the court and the government and they knew that he tell that professional obligation you have an obligation to that and i'm not not don't want to inquire into your confidence is with him but by the same token it seems to be appropriate for any lawyer to explain to the client what the consequences  please the court my name is mr richards and i'm here to represent the government in this peal i'd like to really get directly to your question your honor which is did dr kazi specifically admit to the conduct at issue and i would direct the court's attention to the joint appendix actually the defendant's appendix starting really page  three o eight as her honors or where from the record the defendant in this case came to court he stated at the initial outset that he wanted to plead guilty to a written plea agreement that  be found at the appendix at eight thirty three that plea agreement on a thirty four specifically delineates each of the four elements of that crime for a crime for which he was charged during the we the court systematically went through all of the necessary rights and obligations that he would be weighed and explained to him both personally as well as asked the government to explain what he was charged with and what the elements were with the maximum penalties were and then the court asked the government to please explain what the factual basis was for the plea that makes up the vast majority frankly of the sixty pages that defense counsel is referencing to now once and that's something here yes it does indicate it's it's apparent that for a while doing  t i'm not sure for how long and that's that's obviously in dispute he thought he was pleading guilty because he didn't have the permission of the of his employer to  release this information was stolen material and even when you go as late as in the plea as three ten to three twelve what does export control mean the question is asked by the court the defendant means you cannot export anyone else unless you get a specific license from the company now to the extent that he is thinking about stolen material stolen from the company and distributed which was the subject of the first indictment this all makes sense but after that it makes less sense in terms of the arms export control so your honor if i may i respectfully disagree with the characterization that he thought he was pleading guilty to stolen property i'm not saying that ultimately i'm ok talking about the dialogue up until you get to this discussion of what does export control mean license from the company and you go back  forth back and your adversary's point is that for quite a bit of time he believed he was pleading guilty to the earlier drug so i thought let me direct the question first with respect to the company high in the situation the doctor cuz he found himself and in his entire profession which had been working for three different cleared defense contractors on work that was almost exclusively oriented to  the air force says fighter pilot systems when he needed a license in order to do this it was the company that would acquire the license on behalf of the individual so if in fact there was an export that would happen with respect to any of this material it was the company that would quire that would acquire the license it would never have been dr kazi acquiring the license and so that's that i don't think reflects the fact that he thought it would be read both ways that i think that i understand that's that's an ambiguity that would have to be cleared up of the drug and that i do understand but i will say that i think i think that actually did happen  interesting lee subsequently when when the judge starts entering into this colloquy with him at three ten and says after she says what does export control mean and they start going through the issue they start saying well to whom did you ship this material this is on page a a three eleven and he says well as example to one to three companies in the united states which i did interview and also an overseas university and of course the shipment that was supposed to leave the board in the united states of two thousand and thirteen the court says so on four occasions you shipped information both within and outside the country which you knew was illegal to ship and you did it knowingly and willfully he corrects her at that point he says yeah in two occasions one sharing with the university and one that was intercepted before leaving the border to the united states so called he understood in that situation that he was  violation of the law and if you turn back to page three of six interesting lee in this situation the judge when she was going through the colloquy with him at a certain point when she says you know i don't think that you've established and the court being careful says no why don't you take a minute to consult with your attorney he could have after that eighty minute recess come back and said wow you know i didn't know about this whole willfulness thing and i didn't understand that despite the plea agreement despite the fright hearing despite all of these things i had no idea that i was pleading guilty to an export violation i don't want to do this anymore but that's not what he does he comes back and  and the defendant says without any prompting beyond that basically to summarize i have made a bad decision in first of all possessing a document and ship them illegally to overseas and share with anybody that was a violation of export control so the decision i made was incorrect i had the power point not a power point not multiple power point the power point and the para point at the so called that's the second document i would guess where it says unintelligible is that the whole thing is para point no there is a combination it could be a combination of other things certainly more than the power point some cases so nevertheless all of them they require export license which i did not half so and then subsequently on page three of six i had possession of controlled element that required license that i didn't have and i had possession of them in the form of power point and things that belong paper that belongs to the property the court so you had possession of things that you were under you said i took control is that what you said yes yes so your honor in a plain error standard with respect to plain error not only do we feel that this is an error it's certainly not playing the judge had the ability to speak with him and interact with him her impressions of him are entitled to some deference as she was able to see whether or not what his body language was what his eye contact was it was for her to make a determination in some respects as to whether or not he was minimizing his conduct or whether he fully understood to which he was the charges to which he was pleading additionally the defense in this case has utterly failed to establish that to your honor's point earlier if in fact none of these guilty the one hundred three page document that that's at issue here was in place and all over itself with tar warnings it's basically referenced in fact the the specific munitions list violation category fell into but regardless and it was clear with respect to everything that's in the p s r all of the evidence that the government had that he he was guilty so it's actually not surprising whatsoever in the record was it clear that i believe his exact words when asked was was i have no issue with the plea agreement whatsoever something to that effect additional question but he certainly wanted to plead guilty at the time you get we don't hear of anything about a problem with a plea until it to leave you well after the sentencing well after the opportunity he would have had to move to withdraw his plea  that the p s r is nothing but allegations it's just the government's facts the reality is the p s r was presented to the defendant on the record in the sentencing hearing the judge asked the defendant whether or not he had the opportunity to read the p s r he said he had she then asked him whether or not he had any objections to the p s r he said no he did not and then she adopted the p s r as the facts and findings of the court  just a few quick things your honor number one at some point i think my adversary said that the hundred three page document had an blazoned on it i took control i don't think that's true because i last night went through everything to see if the government has ever i don't have the documents but i do not see one place where they say that documents said i controlled other documents may have said i controlled but i don't know that that's true but going to the bigger picture of those last pages of the play was supposedly everything got resolved i just want to point out a few things that arctica has he said that reflect that even in those pages he was still mixed up and some things the courts said that show that maybe she contributed to the mix when they read a paragraph or he says i made a bad decision now he had to confess to a bad decision is not willful conduct he says all of them require an expert license that's not true all of those documents didn't require an expert license and it just shows again that he really didn't understand what required what kind of expert license is this the part where they refer to i turk and trolled and he says yeah they were right her control that's on page three away and it's on the very next page that the court says t i can't take this plea because you're unwilling and unable to tell me what you did that was wrong what does that mean if he's unwilling to say it means he's not found terribly conceding guilt to aca and after a break to say no this is constitutes the admission of the confessed but he is now willing or able to tell me what he did that constitutes the emission of the fence and then there's a few pages or three companies in the united states and overseas which can suspect the two thousand and nine powerpoint presentation of which there is confusion and basically says yes i shipped it and as to the training i just wanna make one quick point as to the training  point presentation that the state department later to signet is falling into category nineteen g of the munitions list well that category wasn't added to the munitions list until october two thousand thirteen after he let pat whitney it's very unlikely he received any training on whether that particular pair of point constituted a munitions list document