A Chicago jury has confirmed what all of us in the U.S. sanctions world should already know (I hope) – that lobbying representatives of state and federal legislatures on behalf of Specially Designated Nationals and Blocked Persons (“SDNs”) is not a good idea. On Friday, C. Gregory Turner was convictedof conspiracy to violate the International Emergency Economic Powers Act (“IEEPA”) for willfully conspiring to provide services to Zimbabwean President Robert Mugabe and other regime-affiliated SDNs without first obtaining a license from the United States Department of the Treasury’s Office of Foreign Assets Control. Despite the conviction Mr. Turner was acquitted of two counts of failing to register under the Foreign Agent Registration Act (FARA), and serving as an agent of a foreign government.

According to an FBI press release describing the criminal complaint, Turner and his co-conspirator Prince Asiel Ben Israel agreed to attempt to have Mugabe removed from the SDN list in exchange for $3.4 million. The pair were alleged to have set up visits by state a federal officials to Zimbabwe, which included meetings with Mugabe and other high-ranking Zimbabwean officials. Ben Israel pled guilty in April and was sentenced to 7 months in prison.

The instructions presented to the jury in Mr. Turner’s case set out certain elements that the prosecution must have met beyond a reasonable in order to sustain a conviction. The elements presented to the jury in Mr. Turner case were as follows:

1, That two or more U.S. persons agreed to provide services on behalf of, or for the benefit of, a Specially Designated National;

2. That the defendant knowingly and willfully became a member of the conspiracy with the intent to further its unlawful purpose;

3. That one or more of the conspirators knowingly committed at least one overt act for the purposes of furthering conspiracy charged in Count Three, after August 27, 2008; and

4. That the charged conspiracy existed on or after the date of any of the above named persons were designated as Specially Designated Nationals, and that the defendant was a member of the conspiracy on or after that date.

5. None of the co-conspirators obtained a license from the Department of the Treasury to provide services on behalf of, or for the benefit of, the Specially Designated Nationals mentioned above.

In order for Turner to be convicted of a criminal IEEPA violation, the government would need to prove that the defendant “willfully” violated Zimbabwe sanctions. This does not by any stretch mean that Turner needed to have understood exactly which section of the Zimbabwe Sanctions Regulations he was contravening. As explained by the 9th Circuit in its decision in U.S. v. Mousavi, “willfulness under IEEPA requires the government to prove beyond a reasonable doubt that the defendant acted with knowledge that his conduct was unlawful… but not that the defendant was aware of a specific licensing requirement.” Without the benefit of seeing the evidence presented by the government it is unclear what exactly Turner did or said that proved his willfulness, but it was apparently enough for the jury to convict. This is particularly true in light of the jury instruction in this case that informed the jury as to willfulness. That jury instruction held, “As used in Count Three, the defendant acted willfully if he acted intentionally and purposefully, with the intent to do something the law forbids, that is with bad purpose to disobey or to disregard the law. The defendant need not be aware of the specific law or rule that his conduct would violate. In other words, the defendant does not need to know that his conduct would violate a particular law, Executive Order, or federal regulation, but he must act with the intent to do something the law forbids.”

It’s also important to note that while Turner’s conviction hinged on his lobbying of elected officials, had Mr. Mugabe just hired a law firm to contest his designation before OFAC this situation would not have occurred. This is because 31 C.F.R. §541.507(a)(4) authorizes the “representation of persons before any U.S. federal, state, or local court or agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons.” While that firm would still have required a license to get paid the $3.4 million, it’s a license that OFAC usually grants.

I don’t think this is the last time we’ll see a case like this. As someone who has represented a number of SDNs before OFAC in the administrative reconsideration process, I know that SDNs frequently request that lobbying be a part of the suite of services provided in the SDN removal process. This request is something that cannot be delivered upon for two reasons. First, as the Turner case demonstrates, it is illegal to lobby on behalf of an SDN without a license from OFAC to do so. It has been my experience that OFAC has a policy of denying license applications for lobbying on behalf of SDNs. Second, SDNs lose sight of the fact that given the nature of allegations against them that there are few politicians, administration officials, or other persons of influence willing to expend political will to assist an individual or a company whom the U.S. government has publicly declared is a threat to U.S. national security. One can only imagine the media headlines if a government official, Senator, or a House Representative were to use their influence to further the interests of an SDN who has been designated for arms trafficking, narcotics trafficking, terrorism, or who, as in Mr. Mugabe’s case, are alleged to have impeded Zimbabwe’s democratic processes or institutions, contributes to the deliberate breakdown in the rule of law in Zimbabwe, and politically motivated violence and intimidation in that country, and have caused political and economic instability in the southern African region.

Nevertheless, potential clients on the SDN List who seek reconsideration pass on representation in the administrative legal process because they they have an unfounded belief that lobbying is the only real way to get off of that list. Unfortunately, there are those who continue to perpetuate that belief. They would be well advised to pay close attention to the case of Mr. Turner and what lessons it has for those seeking to represent the interests of SDNs, before they end up being subjected to the same instructions that Mr. Turner was.