Export Control & Economic Sanctions (OFAC) Defense

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Export control and sanctions law is a maze of regulations, control lists, and constantly changing restrictions — and a misstep can be either a civil penalty or a federal felony. The line between the two is intent. A company can owe a civil fine for an honest compliance error, but a criminal conviction requires far more. If you or your company is under investigation by the Commerce Department, the Treasury Department’s OFAC, or the Department of Justice, an export control violation lawyer should be involved before any explanation is given.

Elizabeth Franklin-Best, P.C. is a federal criminal defense and appellate firm that handles export control and OFAC sanctions cases nationwide. Elizabeth Franklin-Best’s practice is exclusively federal — courts and agencies alike — and Best Lawyers in America lists her as a 2026 “Best Lawyer” in Appellate Practice. These cases turn on the willfulness requirement, and we defend them by holding the government to it.

This guide explains what export control and sanctions violations are, the laws that govern them, what prosecutors must prove, the penalties involved, and how a defense is built. It is general legal information, not legal advice. If you are under investigation or charged, we offer a paid, one-hour initial consultation to review your situation. This guide sits within our white-collar crime defense practice.

Quick Answer

Question	Answer
What is an export control violation?	Exporting controlled goods, technology, or software without a required license, or in a way the regulations forbid.
What is an OFAC sanctions violation?	Engaging in a transaction with a sanctioned country, entity, or individual that U.S. sanctions law prohibits.
What separates a crime from a civil penalty?	Willfulness. Criminal liability requires a willful violation; civil penalties can apply without proof of intent.
What penalties can apply?	For willful criminal violations, up to 20 years in prison and substantial fines per violation.
What does an initial consultation cost?	A paid hour with our firm, structuring the exposure and the disclosure decision.

Key Takeaways

• Export control and sanctions law operates on two tracks — a civil track that does not require intent, and a criminal track that does.
• Criminal liability requires a willful violation — a voluntary, intentional violation of a known legal duty.
• Export controls restrict what can be sent abroad; sanctions restrict who U.S. persons can deal with. The two regimes often overlap in a single case.
• Releasing controlled technology to a foreign national, even inside the United States, can be a “deemed export.”
• An honest mistake, a misclassification, or a good-faith compliance failure is a civil problem — not a willful crime.
• A voluntary self-disclosure to the regulators can substantially reduce exposure and is an important early strategic decision.

What Are Export Control and Sanctions Violations?

Export control and economic sanctions laws regulate how goods, technology, services, and money cross borders. Export controls limit what can be sent out of the United States — particularly items with military, dual-use, or sensitive technological applications. Economic sanctions limit who U.S. persons and companies may do business with — restricting or prohibiting dealings with certain countries, governments, entities, and individuals. Together, they form one of the most complex regulatory systems in federal law.

Most violations of these rules are resolved civilly, through penalties imposed by the regulating agencies. But the same conduct can be prosecuted as a federal crime, and criminal exposure here is severe. What turns a regulatory infraction into a felony is the defendant’s state of mind — and that distinction, more than any other, is the focus of a criminal defense in this area.

The Two Regimes: Export Controls and Sanctions

Two distinct regulatory regimes generate most criminal cases in this field:

• Export controls. The Export Administration Regulations, administered by the Commerce Department’s Bureau of Industry and Security under the Export Control Reform Act, govern commercial and dual-use items. The International Traffic in Arms Regulations, administered by the State Department under the Arms Export Control Act, govern defense articles and services. Both can require a license before an item is exported.
• Economic sanctions. The Treasury Department’s Office of Foreign Assets Control administers sanctions programs under the International Emergency Economic Powers Act and related laws. OFAC maintains the list of Specially Designated Nationals and enforces country-based and list-based prohibitions.

The prohibited conduct takes many forms: exporting a controlled item without a license, providing goods or services to an embargoed country, dealing with a sanctioned party, “facilitating” a transaction that a U.S. person could not lawfully perform directly, or structuring dealings to evade the rules. A single course of conduct frequently implicates more than one regime at once, and criminal cases are often charged alongside conspiracy and money laundering counts.

The Willfulness Requirement

The single most important concept in a criminal export or sanctions case is willfulness. The criminal provisions — including the criminal penalty section of the International Emergency Economic Powers Act and its export-control counterparts — punish only willful violations. Courts have consistently defined a willful violation in this context as a voluntary, intentional violation of a known legal duty. The government must prove that the defendant knew the conduct was unlawful and chose to do it anyway.

That requirement is a powerful protection, because this body of regulation is genuinely difficult. Control lists are technical, classifications are debatable, sanctions designations change, and reasonable people can disagree about whether a license is required. The civil enforcement system can penalize a company that simply gets it wrong. The criminal system cannot — not without proof that the defendant acted with knowledge of the law and an intent to break it. Establishing the gap between a compliance failure and a willful crime is the heart of the defense.

Applied insight. Prosecutors build willfulness from circumstantial evidence — evasive shipping routes, falsified paperwork, transshipment through third countries, warnings the defendant ignored. The defense’s task is to show the other story the same record can tell: complexity, delegation, reliance on others, and genuine uncertainty about a rule, none of which is a willful violation.

What the Government Must Prove

The specific elements depend on the statute and regulation charged, but a criminal export or sanctions prosecution generally requires the government to prove beyond a reasonable doubt that:

• A legal duty applied. A license was required, or a transaction was prohibited, under the export or sanctions rules.
• The defendant violated that duty. The defendant exported the item, or engaged in the transaction, in a way the law forbids.
• The violation was willful. The defendant knew the conduct was unlawful and intended to violate the law.
• A jurisdictional connection existed. The conduct fell within U.S. jurisdiction — for example, it involved a U.S. person, U.S.-origin goods, or the U.S. financial system.

Every one of these is a place a defense can apply pressure. Whether an item was actually controlled, whether a license exception applied, whether a counterparty was in fact a sanctioned party, and — above all — whether the defendant acted willfully are all genuinely contestable questions in many cases.

Penalties for Export and Sanctions Violations

Criminal penalties in this area are severe. A willful criminal violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705, carries up to 20 years in prison and a fine of up to $1 million for each violation. The criminal provisions of the Export Control Reform Act, 50 U.S.C. § 4819, and the Arms Export Control Act, 22 U.S.C. § 2778, are comparably serious — each also reaching 20 years and $1 million per count. Because each shipment or transaction can be charged as a separate count, the cumulative exposure in a multi-transaction case can be extraordinary.

Beyond prison and fines, these cases carry distinctive collateral consequences. A conviction can bring criminal forfeiture, the loss of export privileges, debarment from government contracting, and lasting reputational harm to a business. The civil track runs in parallel, and the regulators can impose their own penalties regardless of the criminal outcome. Our federal sentencing practice addresses how the Guidelines and forfeiture apply.

Applied insight. When a company discovers a potential violation, the decision whether to make a voluntary self-disclosure to the regulators is consequential and time-sensitive. A well-handled disclosure can sharply reduce penalties and weigh against criminal referral — but it has to be made with a clear-eyed assessment of the criminal exposure first, which is a decision for counsel.

How Export and Sanctions Sentences Are Calculated

Unlike fraud cases, these sentences are not built on a loss table. The governing guideline for most export and sanctions convictions, U.S. Sentencing Guidelines § 2M5.1, assigns a base offense level of 26 — before any adjustments — when national security controls, or controls against the proliferation of nuclear, biological, or chemical weapons, were evaded, or when the offense involved a financial transaction with a country supporting international terrorism. Other violations start at level 14. The arms-export guideline, § 2M5.2, works the same way. A level-26 starting point means years of advisory imprisonment for a first-time offender, which is why the threshold characterization of the offense matters so much.

The defense fight at sentencing is therefore about category, not arithmetic: whether the controls at issue were genuinely national-security controls, what the defendant’s role and knowledge were, and how the conduct compares to the heartland the guideline contemplates. Because the Guidelines are advisory under United States v. Booker, 543 U.S. 220 (2005), and the judge must weigh the 18 U.S.C. § 3553(a) factors, a record of good-faith compliance efforts and cooperation with regulators can move a sentence well below the starting point. Forfeiture and denial of export privileges run on their own tracks and need their own attention.

Defending an Export Control or Sanctions Case

The central defense in a criminal export or sanctions case is the absence of willfulness. Because the government must prove that the defendant knew the conduct was unlawful and intended to break the law, evidence of good faith is powerful: a genuine effort to comply, reliance on classification advice or compliance personnel, an honest misreading of a dense regulation, or simple uncertainty about whether a license was needed. Conduct that is at most negligent — or even a serious compliance breakdown — is not a federal crime.

Other defenses target the regulatory questions themselves. The item may not have been controlled, or a license exception may have applied. The counterparty may not actually have been a sanctioned party, or the transaction may not have fallen within U.S. jurisdiction. Classification — whether a product belongs on a control list at all — is frequently disputed by experts. We examine the licensing record, the classification, the compliance history, and the evidence of intent, and we keep the focus on the line between a regulatory mistake and a willful crime. Guaranteeing results is something we will never do — what we guarantee is the work: holding the government, element by element, to proof of a willful violation.

What Changed in Sanctions Enforcement (2022–2026)

Criminal sanctions enforcement has moved from the periphery of corporate criminal law to its center. Senior Justice Department officials have publicly described sanctions enforcement as the new corporate-crime priority — a deliberate echo of the foreign-bribery wave that preceded it — and the resources have followed: expanded prosecutor ranks, aggressive use of conspiracy and money-laundering theories, and, since 2023, the interagency Disruptive Technology Strike Force pairing the Justice and Commerce Departments to pursue the illegal transfer of sensitive technology. The same currents drive trade secret and economic espionage enforcement, and the two charge types increasingly appear together.

Congress lengthened the government’s reach in 2024: the statute of limitations for both civil and criminal violations of the International Emergency Economic Powers Act and the Trading with the Enemy Act was extended from five years to ten. Under OFAC's guidance, the ten-year period applies to any violation that was not already time-barred when the law took effect, and OFAC has extended recordkeeping obligations to match. For anyone with historical exposure, conduct that would once have aged out of criminal reach may now remain chargeable for a decade.

The Supreme Court has also confirmed how far prosecutors can go. In Türkiye Halk Bankası A.Ş. v. United States, 598 U.S. 264 (2023), the Court held that the Foreign Sovereign Immunities Act provides no immunity from criminal prosecution — allowing a sanctions-evasion case against a bank majority-owned by the Turkish government to proceed, subject only to common-law immunity arguments on remand. The message for foreign companies and financial institutions is unambiguous: state ownership is not a shield, and the U.S. financial system is the jurisdictional hook the government will use.

The courts have meanwhile closed off two defenses that once held promise and sharpened the sentencing exposure. In United States v. Shih, 73 F.4th 1077 (9th Cir. 2023), the Ninth Circuit rejected the argument that the President’s emergency declaration continuing the export rules under the International Emergency Economic Powers Act is unconstitutional or beyond judicial reach, holding that the statute does not violate the non-delegation doctrine and that its scienter requirement answers any vagueness concern — joining every circuit to consider the question. On the later appeal, United States v. Shih, 119 F.4th 1136 (9th Cir. 2024), the court confirmed that an item controlled for national-security reasons triggers the elevated base offense level under the sentencing guideline even when the control exists only to honor a multilateral treaty obligation. Together the decisions mean two things for a defense: constitutional attacks on the regulatory scheme rarely succeed, so the contest belongs on willfulness and classification, and the threshold “national security” label that drives the guideline must be examined closely rather than conceded.

Why Work With Elizabeth Franklin-Best, P.C.

Export and sanctions prosecutions are filed wherever the goods, the money, or the wire transfers passed — which can be almost any federal district. Elizabeth Franklin-Best‘s admissions match that reality: the United States Supreme Court, all twelve federal circuit courts of appeals, and district courts nationwide through pro hac vice admission. Chambers USA’s 2026 guide ranks the firm for Litigation: White-Collar Crime & Government Investigations, the field these prosecutions inhabit.

Behind those credentials is a substantial federal track record. Elizabeth Franklin-Best has handled more than 330 federal proceedings — over 190 in the United States district courts, more than 120 in the federal courts of appeals, and cert-stage matters before the Supreme Court — and has briefed or argued well over 100 federal appeals across all twelve circuits, in addition to writing Reversing Your Criminal Conviction. Past results never guarantee a future outcome, but in a national-security prosecution that can rise or fall on a single willfulness instruction or a guideline characterization, that appellate depth is exactly the resource a defense needs.

Export and sanctions cases sit at the intersection of dense regulation and a demanding willfulness standard — exactly where appellate-grade statutory analysis earns its keep. Each engagement gets a defense designed around its own licensing record, classification disputes, and intent evidence, never a recycled outline. The rest of our white-collar crime defense practice, from fraud to money laundering, is mapped in the main guide.

Talk With an Export Control Violation Lawyer

If the Commerce Department, OFAC, or federal agents have contacted you or your company — or if you have discovered a potential violation and are weighing a disclosure — the decisions ahead are consequential and time-sensitive. A paid, one-hour initial consultation with our firm puts structure on them: what the government can actually prove, whether willfulness is genuinely in play, and how a disclosure decision should be sequenced against the criminal exposure.

Frequently Asked Questions