Source: United States Department of Justice Criminal Division
Note: View the declination letter here.
The Justice Department today announced that it has declined the prosecution of Universities Space Research Association (USRA) after it self-disclosed to the Department’s National Security Division (NSD) criminal violations of U.S. export control laws committed by its former employee, Jonathan Soong. Soong pleaded guilty to willfully violating the Export Administration Regulations (EAR) by exporting U.S. Army-developed aviation software to a university in the People’s Republic of China (PRC) that had been placed on the Commerce Department’s Entity List and was sentenced to 20 months in prison.
“If we stay vigilant, all of us — including our citizens, small businesses, and large corporations — can play a critical role in protecting our country,” said Sue J. Bai, head of the Justice Department’s National Security Division. “A criminal who compromised our national security was brought to justice because his employer caught him and immediately turned him in. We decline to prosecute his employer and are ready to work together with such responsible corporate actors who are committed to joining us in this fight to protect our country from foreign adversaries.”
“USRA discovered that one of its employees was funneling sensitive aeronautics software to a Beijing university in violation of export control laws and at risk to our national security,” said Acting U.S. Attorney Patrick D. Robbins for the Northern District of California. “What the company did next made all the difference in the Government’s decision not to prosecute it: the company took swift and proactive measures to disclose the employee’s wrongdoing, provide all known facts, and cooperate – and continue to cooperate – with the government’s investigation.”
According to court documents, in April 2016, USRA contracted with the National Aeronautics and Space Administration (NASA) to, among other things, license and distribute for a fee aeronautics-related and U.S. Army-owned flight control software. Soong was employed by USRA as a program administrator under the contract and was responsible for performing due diligence on prospective purchasers to ensure that the sale or transfer of software licenses complied with applicable law, including by checking the Entity List. Soong willfully exported software subject to the EAR to Beijing University of Aeronautics and Astronautics, also known as Beihang University (Beihang), a university in the PRC, knowing that an export control license was required for the export to Beihang because it was on the Entity List. Beihang was on the Commerce Department’s Entity List due to its involvement in the development of military rocket systems and unmanned air vehicle systems. Soong further used an intermediary to complete the transfer and export of the software to Beihang to avoid detection, and embezzled tens of thousands of dollars in software license sales by directing purchasers to make payment to an account he personally owned and controlled.
This scheme continued until NASA inquired about the sales of software licenses to PRC-based purchasers and USRA began to investigate. Soong initially lied to USRA and fabricated evidence that he had conducted due diligence on the purchasers and provided it to USRA’s counsel to provide to NASA, but after USRA’s counsel investigated further and confronted Soong with evidence that contradicted his statements, he admitted to knowing that Beihang was on the Entity List when he exported the software to Beihang and that a license had been required for the export.
Within days of learning that Soong had willfully violated U.S. export control laws, and before USRA had completed its own investigation to understand the scope of the misconduct, USRA self-disclosed the crime to NSD and fully cooperated with the ensuing criminal investigation, which eventually established that Soong had acted alone at USRA. USRA’s cooperation included proactively identifying, collecting, and disclosing relevant evidence to investigators, including foreign language evidence and evidence located overseas, and providing detailed and timely responses to the government’s requests for information and evidence. USRA remediated the root cause of the misconduct by disciplining a supervisory employee who failed appropriately to supervise Soong, and by significantly improving its internal controls and compliance program. USRA also compensated the government both for the funds Soong embezzled, and for the time Soong had spent embezzling funds instead of performing his duties under USRA’s contract with NASA.
The Justice Department declined USRA’s prosecution after considering the factors set forth in the Department’s Principles of Federal Prosecution of Business Organizations and the National Security Division Enforcement Policy for Business Organizations (NSD Enforcement Policy). The NSD Enforcement Policy creates a presumption that companies that (1) voluntarily self-disclose to NSD potentially criminal violations arising out of or relating to the enforcement of export control or sanctions laws, (2) fully cooperate, and (3) timely and appropriately remediate will generally receive a non-prosecution agreement, unless aggravating factors are present. In appropriate cases, the NSD Enforcement Policy authorizes prosecutors to go further, and exercise discretion to decline a company’s prosecution. This is the second time that NSD has exercised its discretion to decline the prosecution of a company under the NSD Enforcement Policy.
The case was investigated by the Department of Commerce’s Bureau of Industry and Security; the Department of Defense’s Defense Criminal Investigative Service; and the FBI. The NASA Office of Inspector General; U.S. Army Criminal Investigation Division; U.S. Army Counterintelligence; and the Department of Homeland Security, Homeland Security Investigations provided valuable assistance.
Trial Attorney Rachel Craft of the National Security Division’s Counterintelligence and Export Control Section and Assistant U.S. Attorney Barbara Valliere for the Northern District of California prosecuted the case.