The indictment states that “The DDTC has certified that these Aeroflex integrated circuits are ‘defense articles’ under Category XV(e) of the USML.” At trial, DoJ continues to rely on certificates from DDTC or BIS to establish the classification, and from that, the requirement for a license, in export control prosecutions. The nutty 9th Circuit even holds that such certificates are beyond judicial review because such classifications are “political questions” rather than issues of fact.

The 7th Circuit rejected the government argument that classifications were not reviewable in the Pulungun case. In the Roth case the 6th Circuit accepted Pulungun, but admitted and relied upon the DDTC certificate along with testimony from two other witnesses as evidence establishing the jurisdiction and classification of the actuators as military aircraft parts under USML Cat. VIII(h).

I would suggest that continued use of DDTC or BIS certificates at trial to establish jurisdiction and classification as a predicate to proving the license requirement is a blatant unconstitutional violation of the confrontation clause as clearly set forth in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). DDTC certificates are “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Id. Therefore, the prosecution must present the declarant and the defense must be allowed to cross-examine him.

I would respectfully disagree that “an arrest and criminal prosecution is rare for items without some further strategic significance”. If the target is Persian or Arab, no violation is too small. Many of the criminal cases against Persians involve hardware and technology that if exported by companies run by good ol’ boys would be the subject of a consent agreement and civil penalty.