U.S. Coast Guard Officer Pleads Guilty to False Statements Charge

A Chief Warrant Officer in the U.S. Coast Guard has pleaded guilty in U.S. District Court in Hawaii to one count of making a false statement, according to Ronald J. Tenpas, Assistant Attorney General for the Justice Department’s Environment & Natural Resources Division and Edward H. Kubo Jr., U.S. Attorney for the District of Hawaii.^[1]

David G. Williams was indicted by a federal grand jury on Aug. 8, 2007, on charges that he lied to investigators regarding his knowledge of the discharge of bilge wastes through the ship’s deep sink into the Honolulu Harbor.[2] In his role as Main Propulsion Assistant, Williams directed the maintenance of the main diesel engines and other machinery in the engine room for the Coast Guard Cutter RUSH, a high endurance cutter stationed in Honolulu.^[3]

Assistant Attorney General Tenpas stated that, “Today’s guilty plea stands as notice that the Department of Justice will enforce the nation's environmental laws in an even-handed and thorough manner.”^[4]

The plea agreement states that, on or about March 8, 2006, Williams became aware of the direct discharge of bilge wastes into Honolulu Harbor and that the Engineering Department personnel staged an unusual and irregular operation and configuration of engine room equipment to pump bilge wastes from the aft bilge to the deep sink and overboard into Honolulu Harbor.^[5] This process bypassed the “oily water separator” (OWS) system which acts as a pollution prevention control device managing accumulations of bilge wastes while underway at sea. The OWS system processes wastes to separate the water from the oil and other wastes.^[6]

The plea agreement went on to state that, on or about March 13, 2006, the State of Hawaii Department of Health received an anonymous complaint stating that the crew of the U.S. Coast Guard Cutter RUSH were ordered to pump approximately 2,000 gallons of bilge waste into Honolulu Harbor.^[7] Investigators from the U.S. Coast Guard Investigative Service (CGIS) also received confirmation from Main Propulsion Division personnel who personally participated in the discharge that bilge wastes had indeed been released through the deep sink and into Honolulu Harbor.^[8] CGIS investigators garnered various documents from the RUSH, including engineering and ship’s logs, tank level sounding sheets, and a pneumatic pump.^[9]

During his interview with investigators from the CGIS, Williams denied knowledge of personnel discharging bilge waste to the deep sink and continued by stating that he was unaware of the pumping of bilge wastes to bypass the ship’s OWS system.^[10]

Sentencing has been set for Aug. 19, 2008. Williams faces a statutory maximum of 5 years in prison and a fine of up to $250,000, plus a term of supervised release of up to 3 years.^[11]

Under 18 U.S.C. § 1001 it is a crime for a person, in any matter within the jurisdiction of the executive branch, to make a materially false statement or representation.^[12] The punishment for violating section 1001 is a fine, imprisonment for up to five years, or both.^[13]

Federal criminal defense attorney, Douglas McNabb, has written extensively on the crime of false statements. Some of his work on the subject may be found here.

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[1] Press Release, United States Department of Justice, U.S. Coast Guard Officer Pleads Guilty for Lying about Vessel Pollution, May 1, 2008 (available at http://www.usdoj.gov/opa/pr/2008/May/08_enrd_370.html).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] 18 U.S.C. § 1001(a)(2).
[13] Id. at § 1001(a).

Canadian Night Vision Goggle Manufacturers Accused in Conspiracy to Defraud U.S. Military

A federal grand jury in San Francisco has indicted a Canadian night vision goggles manufacturing firm and two of its executives for in an alleged scheme to defraud the U.S. military in the supply of equipment for the Iraqi army, according to Department of Justice officials.^[1]

The indictment, returned on Dec. 4, 2007, charges Michael Beker, also known as Mendel Beker, President and Chief Executive of Newcon Optik Ltd., Arie Prilik, the former senior Vice President of Newcon Optik, and the company itself with two counts each of wire fraud and one count each of conspiracy to commit wire fraud.^[2] In addition, Beker and Newcon Optik were also each charged with one count of money laundering. Both Beker and Prilik have been arrested by the York Regional Police in Toronto, Canada.^[3]

Beker, Prilik and Newcon Optik Ltd. are accused of attempting to defraud the U.S. Army’s Tank-Automotive and Armaments Command (TACOM), a military unit tasked with equipping and training the Iraqi Army. The alleged scheme could have resulted in the U.S. military being overcharged approximately $11 million.^[4]

The indictment accuses Beker, Prilik and Newcon Optik of agreeing to pay a competitor to withdraw from supplying TACOM with night vision goggles so that they could step in and supply TACOM with night vision goggles at a higher price.^[5] Beker, Prilik and Newcon Optik are alleged to have made an initial payment of $50,000 to a competitor as the first step in the scheme.^[6]

18 U.S.C. § 371 covers the crime of conspiracy. Under that section, if two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.^[7] If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.^[8]

Beker and Prilik each face up to 20 years in prison for the wire fraud counts, and up to five years in prison and a $250,000 fine each if convicted on the conspiracy count.^[9] Beker faces imprisonment for up to 20 years and a fine of up to $500,000 if convicted of the money laundering charge.^[10] The United States also plans, upon the conviction of Beker, Prilik and Newcon Optik, to seek criminal forfeiture of the $50,000 payment made in the case.^[11]

Federal criminal defense attorney Douglas McNabb has previously written about the crime of conspiracy, here.

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[1] Press Release, United States Department of Justice, Canadian Night Vision Goggles Manufacturer and Two Executives Charged in Scheme to Defraud U.S. Military Procurement Unit for Iraq (April 21, 2008) (available at http://www.usdoj.gov/opa/pr/2008/April/08_at_320.html).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] 18 U.S.C. § 371.
[8] Id.
[9] Press Release, United States Department of Justice, Canadian Night Vision Goggles Manufacturer and Two Executives Charged in Scheme to Defraud U.S. Military Procurement Unit for Iraq (April 21, 2008) (available at http://www.usdoj.gov/opa/pr/2008/April/08_at_320.html).
[10] Id.
[11] Id.

Physicist Pleads Guilty to Conspiracy to Export Defense Information

On April 15, 2008, federal authorities announced that Daniel Max Sherman pled guilty to conspiracy to violate the Arms Export Control Act (22 U.S.C. Section 2778), in violation of Title 18, United States Code, Section 371.^[1] Sherman, a former resident of Knoxville, now lives in Littleton, Colorado. He is a physicist who formerly worked at Atmospheric Glow Technologies, Incorporated, a technology company based out of Knoxville.^[2]

According to the plea agreement, Sherman, J. Reece Roth, served as a Professor Emeritus at The University of Tennessee, and work at Atmospheric Glow Technologies, Inc., between January 2004 and May 2006.^[3] During this time he engaged in a conspiracy to pass on export controlled technical data to a foreign national from China. This information pertained to a restricted United States Air Force contract to develop plasma actuators for a munitions-type Unmanned Aerial Vehicle (UAV), or “drones.” The Chinese national was a graduate level research assistant at the University of Tennessee.^[4]

United States Attorney James R. Dedrick has noted that the violations charged here carry a maximum possible penalty of five years imprisonment and a $250,000.00 fine.^[5] According to Dedrick, “A top priority of the Department of Justice and this District is protect our national security and to protect our technology from disclosure to foreign governments.”^[6]

Patrick Rowan, Acting Assistant Attorney General for National Security added that, “knowingly disclosing restricted U.S. military data to foreign nationals represents a very real threat to our national security, particularly when we know that foreign governments are actively seeking this information for their military development.”^[7]

The investigation that led to the arrests in this case was conducted jointly by the Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, U.S. Air Force Office of Special Investigations, and the Department of Commerce Office of Export Enforcement.^[8]

Normally, consipracy to export defense articles is punishable under section 127.1 of the International Trafficking of Arms Regulations codified at 22 U.S.C. § 2778. Under this section it is unlawful for anyone to conspire to export, import, reexport or cause to be exported, imported or reexported, any defense article or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Office of Defense Trade Controls.^[9] Violation of this section is punishable by a fine for each violation not more than $1,000,000 or imprisonment not more than ten years, or both.^[10]

However, here Sherman was charged with violation of 18 U.S.C. § 371. Under 18 U.S.C. § 371, it is a crime for a person to conspire with at least one other person to commit an offense against the United States, and then do an overt act in furtherance of that conspiracy. The punishment for a violation of section 371 is a fine, imprisonment for up to 5 years, or both.^[11]

Federal criminal defense attorney, Douglas McNabb has written extensively on the subject of conspiracy. His work in that area can be seen here.

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[1] Press Release, United States Department of Justice, Physicist Pleads Guilty to Conspiracy to Violate the Arms Export Control Act (April 15, 2008) (available at http://www.usdoj.gov/opa/pr/2008/April/08_nsd_299.html).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] 22 C.F.R. §127.1.
[10] 22 U.S.C. § 2778(c).
[11] 18 U.S.C. § 371.

Civilian Contractor Alleged to Have Assaulted Coworker to be Tried Under UCMJ

It has been revealed that a civilian contractor accompanying the Multinational Corps Iraq has been charged with aggravated assault under military law.^[1]

The contractor, Alaa Alex Mohammad Ali, was an interpreter and is the first contractor to be charged under a 2006 amendment to the Uniform Code of Military Justice (UCMJ) - Section 552 of the National Defense Authorization Act of Fiscal Year 2007, according to MNC-I officials.^[2]

Ali is a dual citizen of both Canada and Iraq. He is alleged to have stabbed another contractor. Officials maintain that he is presumed to be innocent until, and unless, he is proven guilty. He is currently in confinement at Camp Victory, Iraq, where he has been since Feb. 29.^[3]

A pre-trial hearing has been scheduled for April 10. The hearing will be held according to Article 32 of the Uniform Military Code of Justice and is conducted like a civilian preliminary hearing and similar to a grand jury.^[4]

Over the course of the proceedings, a senior Army officer will listen to evidence and make findings and recommendations about the charge.^[5] The resulting report will be forwarded to the commanding general of Multinational Corps Iraq, Lt. Gen. Lloyd J. Austin III.^[6]

Ali will be entitled to all the same rights, protections and privileges service members receive in military court. Those rights include the right to counsel, the right to speedy trial, protection against self- incrimination, and presumption of innocence.^[7]

Ali moved to Canada from Iraq following the Persian Gulf War during Saddam Hussein’s crack down on Shiites. He was living there with his wife and three children until, hoping to assist in the rebuilding of his home country, he returned as a contractor.^[8]

The aforementioned amendment to the UCMJ amended 10 U.S.C. 802(a)(10) to include those persons serving with or accompanying an armed force in the field during the time of declared war or a contingency operation, as persons subject to the UCMJ.^[9] Therefore contracting personnel, such as Ali, are now subject to prosecution under the UCMJ.

Federal criminal defense attorney, Douglas McNabb has written extensively on legal issues arising in the area of national security law. Some of his work can be read here.

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[1] Michael R. Gordon, U.S. Military Charges Contractor in Iraq, International Herald Tribune, April 5, 2008 (available at http://www.iht.com/articles/2008/04/05/africa/contractor.php?page=1).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] 10 U.S.C. § 802(a)(10).

Bergersen Pleads Guilty to Conspiracy to Disclose Classified Information

Gregg William Bergersen, of Alexandria, Virginia, has pleaded guilty to conspiring to disclose national defense information to persons not entitled to receive it, in violation of 18 U.S.C., Sections 793(d) and (g). Bergersen was arrested on February 11, 2008 on a criminal complaint charging this same offense.^[1]

The information Bergersen pleaded guilty to disclosing pertained to Taiwanese purchases of U.S. military equipment. This information was classified at the Secret level. Over the course of the conspiracy, Bergersen developed a friendship with Tai Kuo, a New Orleans businessman who is accused of passing that information on to the Chinese government.^[2] Authorities assert that Kou compensated Bergesen by bestowing upon him gifts, cash payments, dinners, and money for gambling during trips to Las Vegas.^[3]

Officials claim that some of the weapons information passed between Bergersen and Kuo related to Taiwan's new Po Sheng air defense system. Taiwanese military officials have admitted that the disclosures caused some damage to the program, but did not compromise key technology.^[4]

Bergersen has stated that he was unaware that Kuo was passing this information along to an official of the government of the People’s Republic of China. Bergersen had even gone as far as to warn Kuo that some of the information being disclosed was classified.^[5]

Espionage charges are still pending against Kuo and an alleged conspirator, Yu Xin Kang, both of whom remain held without bond.^[6]

The Chinese government contends that the accusations of espionage in this case are groundless and is accusing the U.S. of "Cold War thinking."^[7]

According to U.S.C. §793(g), if two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.^[8]

In this case 18 U.S.C. § 793(d) was the subsection which Bergersen conspired to violate. This subsection makes it is a crime for a person—who has lawful access to any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or information relating to the national defense—to willfully communicate or transfer that information to any person not entitled to receive it, if he believes that the information could be used to the injury of the United States or to the advantage of any foreign nation. The punishment for doing so is a fine, imprisonment for up to 10 years, or both.^[9]

Federal criminal defense attorney, Douglas McNabb, has written extensively on the crime of Disclosure of Classified Information. Some of his work on the subject can be seen here.

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[1] The Associated Press, Defense Department Analyst Pleads Guilty to Passing on Data to Chinese-Connected Business, FoxNews.com, March 31, 2008 (available at http://www.foxnews.com/story/0,2933,343969,00.html).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8]18 U.S.C. §793(g).
[9]18 U.S.C. §793(d).