Not a lawyer either but they also allege:
B. Proving a Closed-Circuit Rebreather as Charged was Critical Since Rebreathers Included in the Commerce Control List under 8A992 Did Not Require a License to Ship to Libya 17
Their argument regarding this point is set out on page 11:
"Not all items on the Commerce Control List (CCL) and assigned an Export Control Classification Number (ECCN) require a license. Sotis was charged under CCL, category 8, subsection 8A002 q.1, pertaining specifically to closed circuit rebreathers. 8A002 is controlled for NS (national security) and AT, (anti-terrorism), however, subsection 8A992 pertaining to marine equipment not controlled by 8A002 was not controlled for AT. According to the Country Chart, as of November, 2016, Libya was controlled only with regard to the NS classification, not the AT classification. The rEVO III was rejected for military use. The government argued nonetheless at sentencing that they could nonetheless be used in training. As such, the government never distinguished the rEvo III from an ordinary open-circuit rebreather not controlled for shipment to Libya."
From Page 12:
"The only understanding Sotis and Voissem had was that they were in over their head on the decision of whether a license as needed, so they made the decision not to ship. Sotis and Voissem sold the items to Ramas, in a domestic sale, and Ramas picked up the items from Add Helium. Sotis did not ship, and Voissem did not ship. They did not “transship” to another country to avoid a direct shipment to Libya"
From Page 17:
"B. Proving a Closed-Circuit Rebreather as Charged was Critical Since Rebreathers Included in the Commerce Control List under 8A992 Did Not Require a License to Ship to Libya The indictment stated that “tems categorized under ECCN’s required a license for export based on a specific reason for control” and that “[g]oods and technology controlled for National Security reasons required a license for export to countries including Libya.” The indictment was incorrect and incomplete. Testimony at trial was likewise misleading, incomplete, and insufficient to establish this critical requirement of the absolute need for a license in this case, much less, Sotis’ foreknowledge of that fact. As a matter of law, not all items on the CCL and assigned an ECCN require a license, as was alleged in the indictment and as the government argued to the jury. In particular, not all rebreathers addressed in the CCL are restricted for shipment to Libya. There are many exceptions to the licensing requirements and shipments to Libya are not excluded from these exceptions. The government failed to show the need for a license for rEVO III’s because the government failed to distinguish its qualities and characteristics from rebreathers included under the CCL but not restricted in their export to Libya. Determining whether a license is needed for the export of a particular item is no USCA11 Case: 22-10256 Date Filed: 05/16/2022 Page: 27 of 61 18 small feat. Notwithstanding, the government misrepresented the simplicity of the license decision-making process and in so doing, failed to demonstrate that anyone in government had gone through the analysis to establish correctly what type of item rEVO III was, whether an exception would apply, whether it was in fact a “dual-use” item, and if so, whether the user of the item and its use were prohibited. The government failed to establish in fact whether exports of rEVO III to Libya was illegal. "
D. Sotis and Voissem Had a Good Faith Basis for their Belief That the rEVO III Rebreather Was Not Dual Use Since It Had Been Rejected by The Military
