Apr
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Federal Court Rejects Claim that the USML Is Unconstitutionally Vague
Posted by Clif Burns at 6:29 pm on April 1, 2008
Category: Arms Export • Criminal Penalties
ABOVE: Endevco 7270A-200K accelerometer
We’ve posted here previously about the indictment of Qing Li for allegedly attempting to export Endevco 7270A-200K accelerometers without a license to China. That case is proceeding to trial, and the trial court rejected* Qing Li’s claim that the United States Munitions List, as applied in her case, was unconstitutionally vague.
The court characterized defendant Qing Li’s argument as follows:
Defendant argues that the court should dismiss the indictment because the [Arms Export Control Act] and its implementing regulations are unconstitutionally vague as applied to her. Specifically, Defendant argues that a person of ordinary intelligence could not determine that the Endevco accelerometer device is a “military accelerometer” requiring an export license. In support of this argument, she attaches to her motion two pages of manufacturer-provided “public information” regarding the Endevco accelerometer. She argues that “[a] person of ordinary intelligence would likely deem that data sheet incomprehensible,” and that the sheet does not indicate whether the device is for military or weapons use. (Mot. at 3.) She also emphasizes the allegation that even prosecutors must request information from the State Department to determine if an item is on the list.
I haven’t looked at the trial court record but the Endevco “public information” regarding the accelerometer is presumably this data sheet which, admittedly, doesn’t state that the item is on the USML or is export-controlled. And, of course, I’m sure that the argument that even the prosecution had to ask the State Department whether this accelerometer was USML or not elicited some sympathetic nods.
The court quite properly declined to make this a case about whether the USML description of military accelerometers is unconstitutionally vague, stating:
The court notes that not only does Defendant fail to cite a single case in which the court found the AECA unconstitutionally vague, her argument emphasizes the premature and misdirected nature of her challenge. Because the charging statute contains a scienter requirement (willful violation), innocent, accidental, or unknowing exportation of a proscribed device cannot support a conviction. Therefore, the relevant inquiry consists not of an abstract analysis of constitutional vagueness, but what Defendant knew. Such an inquiry will be undertaken by a jury and based on the evidence adduced at trial. See Lee, 183 F.3d at 1032-33 . Here, the factual record has yet to be developed. Until an evidentiary record is created, the court cannot determine whether Defendant “in fact had fair notice that the statute and regulations proscribed [her] conduct.” Hsu, 364 F.3d at 196. Application of these cited controlling authorities, in essence, renders Defendant’s constitutional challenge moot at this juncture.
Readers of this blog with sharp memories may recall, as we discussed here, that the indictment alleged some facts that suggest that Qing Li might indeed have known that the accelerometer was indeed covered by the USML. The undercover agent from whom Ms. Li was trying to purchase the accelerometer allegedly told her that the export required a license and he didn’t think one could be obtained. And although she appeared to walk away from the transaction at that point, citing the “risk” involved, the indictment alleged that she continued to direct the negotiations between the undercover agent and a contact in China.
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5 Comments:
The data sheet not only fails to state that the item is controlled, it fails to state whether it was developed for the military or has a military use, a necessary datam for determining whether it is ITAR controlled.
The line of cases that state that the scienter requirement overcomes vagueness are not well reasoned, and are in fact a judicial cop out. DDTC issues regulations without opportunity for notice and comment from those affected. Its claims its jurisdictional determination on specific products is exempt from judicial review. Experience teaches that administrative agencies that claim exemption from judicial review first become first sloppy and then unaccountable, and DDTC is no exception.
The Qing Li indictment appears to be another case in which this Department of Justice is trying to erode the scienter requirement in indictments for export control and embargo cases: It does not allege that Qing Li willfully violated the ITAR; rather, it alleges that Qing Li willfilly exported the defense articles without alicense, which does not track the statutory elements. That is not the statutory offense: 22 USC 2778(c) defines the offense as “Any person who willfully violates any provision of this section or section 2779 of this title”, not, whoever willfully exports … without a license. Now, by the time DoJ finally got to trial it may have found or made enough evidence that Qing Li had the requisite knowledge of the regulations, but the question is not what they could ultimately “prove” at trial; but the sufficiency of the indictment and whether they had sufficient proof to establish probable cause of a criminal violation for the search warrant or to support probable cause of a criminal violation before the grand jury to support the indictment. Rather than relying on the books and records provisions and administrative supeonas when investigating unlicensed exports, the government has been misrepresenting to magistrates and grand juries that undocumented exports alone suffice to establish probable cause, where in fact there must also be probable cause for the scienter element as well.
Good point, Mike. The indictment doesn’t properly state the offense. As I recall, however, the criminal complaint that the undercover told her that an export license would be necessary, which is at least a start at establishing the requisite scienter. But knowledge that the export violates the law is always the hardest thing to prove which may tempt the government to cut corners.
Sufficiency of the indictment is a different matter from the burden of persuasion for the scienter element, which is where defendants and prosecutors usually argue about the jury instruction. A jury instruction cannot cure a defieciency in the indictment. F R Crim Proc Rule 7(c)(1)requires the indictment to state “the essential facts constituting the offense charged” which is compelled by the 5th and 6th Amendments (“to be informed of the nature and cause of the accusation”). DoJ deliberately has been trying evade the requirement to allege “essential facts constituting” the essential element of a criminal defense that differentiates its from a civil penalty case. This Department of Justice wants to strip exporters of an essential constitutional and procedural protection.
I apologize: That should have read: “the essential element of a criminal offense”. The defense,of course, is that this Department of Justice was, as always, too damn lazy or deceptive [take your pick] to be bothered to have the facts to allege an essential element of the offense (the scienter requirement), and thus the search warrant and the complaint that initiated the prosecution were defective and the court was therefore without jurisdiction within the meaning of FRCrP 12(b).
