United States v. Zhen Zhou Wu , 92 A.L.R. Fed. 2d 765 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1115
UNITED STATES OF AMERICA,
Appellee,
v.
ZHEN ZHOU WU, a/k/a ALEX WU,
Defendant, Appellant.
No. 11-1141
UNITED STATES OF AMERICA,
Appellee,
v.
YUFENG WEI, a/k/a ANNIE WEI,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
____________________
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Michael R. Schneider and Alan M. Dershowitz with whom Jeffrey
G. Harris and Salsberg & Schneider were on brief for appellant Zhen
Zhou Wu, a/k/a Alex Wu.
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Nathan Z. Dershowitz with whom Amy Adelson and Dershowitz
Eiger & Adelson, P.C. were on brief for appellant Yufeng Wei, a/k/a
Annie Wei.
Stephan E. Oestreicher, Jr., Appellate Section, Criminal
Division, Department of Justice, with whom Lanny A. Breuer,
Assistant Attorney General, Criminal Division, John D. Buretta,
Acting Deputy Assistant Attorney General, Criminal Division, Carmen
M. Ortiz, United States Attorney, B. Stephanie Siegmann and John
A. Capin, Assistant United States Attorneys, were on brief for
appellee.
March 19, 2013
LYNCH, Chief Judge. This case involves criminal laws
meant to protect the security of the United States and rights
guaranteed to criminal defendants by the Constitution.
In 1976, Congress passed the Arms Export Control Act
("AECA"), giving the President broad authority to regulate the
shipment of defense articles to foreign destinations "[i]n
furtherance of world peace and the security and foreign policy of
the United States." 22 U.S.C. § 2778 (2006). Three years later,
Congress further authorized the President to restrict the export of
"dual-use" technologies that serve both military and nonmilitary
purposes. 50 U.S.C. app. §§ 2401(5), 2402(2)(A). Individuals who
violate either set of export restrictions may be fined up to $1
million and imprisoned for up to 20 years. 22 U.S.C. § 2778(c); 50
U.S.C. § 1705(c). The resulting regulatory scheme is intricate, in
order to combat the sophisticated weapons dealers whose activities
undermine U.S. interests.
The case at hand involves two defendants prosecuted and
convicted on charges of violating restrictions on the overseas
shipment of weapons-grade technologies. From 1996 until 2008, Zhen
Zhou Wu and Yufeng Wei shipped tens of millions of dollars worth of
sophisticated electronic components from the United States to
China, with little regard for whether the parts that they sold were
export-controlled. On appeal, Wu and Wei launch a broad-based
attack on the federal government's arms export control system--a
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regulatory scheme that, they say, violates the Fifth Amendment's
Due Process Clause. We reject this attack. However, on two
counts of conviction, charging Wu and Wei with exporting items
restricted under the U.S. Munitions List, we find that the district
court erred in its instructions by not submitting to the jury an
element of the offense--an error that violated the defendants'
Sixth Amendment right to a trial by jury and has not been shown to
be harmless. Accordingly, we affirm Wu's conviction on 15 of the
17 counts, affirm Wei's conviction on 11 of the 13 counts, and
vacate the convictions of each defendant on two counts. We remand
for resentencing.
I.
A. Background
Zhen Zhou Wu and Yufeng Wei, both Chinese nationals,
married in China in 1988. Afterward, they each pursued graduate
degrees in the United States. In 1996, Wu returned to China to
found the Chitron Electronics Company Limited in Shenzhen
("Chitron-Shenzhen"). Chitron-Shenzhen served as an electronic-
parts broker, purchasing components from international suppliers
and then selling them to customers in China. It specialized in
military and industrial parts.
The same year that Wu founded Chitron-Shenzhen, he also
opened a branch purchasing office for the company in Massachusetts
called "Perfect Science and Technology" and employed Wei to run the
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office. Wei ran Perfect Science as a sole proprietorship under her
own name. In early 1998, Wu incorporated the office as "Chitron
Electronics, Inc." ("Chitron-US"), with Wu as the corporation's
president and Wei as its business and finance manager. Throughout
this period, Wei oversaw the purchase of parts from vendors in the
United States and the shipment of those parts to Chitron's
customers in China. Wu and Wei divorced in 1999, although their
working relationship continued throughout the period covered in the
indictment.
Wu oversaw the business from Shenzhen. Once a year, he
traveled to the United States to visit the Chitron-US office, and
he remained in daily contact with Wei throughout the year,
coordinating the activities of Chitron-US through electronic
tasking lists and an online database system. Meanwhile, Wei worked
as office manager of the Chitron-US branch, a role she served in
until 2007, when Stephen Gigliotti took over that position. By
that time, Chitron had five offices--three in China, one in Hong
Kong, and one in the United States--and over 200 employees. Each
year, the company purchased tens of thousands of parts, worth tens
of millions of dollars, from dozens of U.S. suppliers.
Nearly all of Chitron's customers were located in
mainland China. Before 2005, Chitron-US would ship orders to
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freight forwarders1 in Hong Kong, who then repackaged the items and
sent them along to Chitron-Shenzhen, where they were inspected and
then finally sent to their ultimate recipients in China. In 2005,
Chitron established its own one-room branch office in Hong Kong,
staffed by a single part-time employee who traveled to Hong Kong a
few days a week while working full-time in Shenzhen. Thereafter,
Chitron-US exported parts directly to Chitron's Hong Kong office,
which then forwarded the orders to Chitron-Shenzhen. Wu and Wei
claimed that they shipped parts through Hong Kong because it was
cheaper than sending them directly to China.
Before exporting parts from the United States, a
Chitron-US employee--usually Wei--would prepare a "Shipper's Export
Declaration" ("SED"), as required by the Commerce Department's
Foreign Trade Regulations. See 15 C.F.R. § 30.2(a)(1); see also 13
U.S.C. § 301. Wei always entered the code "NLR" ("no license
required") on the forms to indicate that no export licenses were
required for the goods that Chitron-US was shipping. Wei also
listed "Hong Kong" as the "country of ultimate destination" for the
parts, and entered the names of the freight forwarders--and later
Chitron's Hong Kong office--as the parts' "ultimate consignee."
1
A "freight forwarder" is "a transportation broker who
assembles and consolidates numerous small shipments into one large
load, arranges for long-haul transportation of the consolidated
shipment, breaks the consolidated load into small individual
shipments, and delivers those packages to the ultimate consignees."
Regular Common Carrier Conference v. United States, 793 F.2d 376,
378 (D.C. Cir. 1986) (Scalia, J.).
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How much Wu and Wei actually knew about the United
States' export control regime was hotly contested at trial. Wu
occasionally presented himself to customers as an export compliance
expert with a specialty in military products. According to Chitron
staff, for most of its history the company had no export compliance
policy, nor did it give any compliance training to its employees.
Nevertheless, as early as 1996, someone at Chitron-US had
printed out pages from the Commerce Department's Export
Administration Regulations ("EAR"), 15 C.F.R. pts. 730-774, and
placed them into a folder labeled "export" inside a box marked "Wu
files." Communications between Wu and Wei around this time also
evidence that the two were aware of legal restrictions on the
export of certain electronics to China. In April 1997, Wei told Wu
in an e-mail that she had learned from United Parcel Service that
she was required by law to obtain an export license in order to
ship a certain part. That same month, Wei also told Wu that a
vendor had refused to sell to her after she mentioned that her
customer was in China, and that the "big lesson" from this
"mistake" was to avoid providing "extra" information to vendors.
Wu agreed, suggesting that Wei not tell suppliers that she sold
parts to China, and later instructing that she should simply avoid
telling suppliers that she exported parts at all.
Beginning in 2000, Chitron's lack of export licenses for
its products became a bigger and bigger concern for the company.
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In 2001 and 2002, Maylyn Atkinson Murphy, a Chitron-US employee,
repeatedly told Wu that vendors had begun to ask for "end user
information," such as where Chitron would be shipping the parts and
whether those parts would be used with products that had military
applications. In response, Wu explained to Murphy that his
priority was to "get business done" while avoiding "trouble if the
parts are really sensitive and defense related." He told her that
"[t]he key is to avoid submitting end user information and get the
[p]arts ordered," and suggested that if vendors asked her, she
should tell them that she did "not know where the parts ship."
In August 2002, Wei raised similar concerns with Wu: she
said that she was worried about shipping a part that was "not for
exporting [to] China" and that she feared there might be "some
strict rule from [C]ustom[s] if they see the part number." Wei
suggested to Wu that she could instead enter a different part
number on the shipping documents.
In June 2003, a vendor at an electronics trade show told
Wei that she would be interested in doing business with Chitron
"provided you guys can, you know, supply the export license[s].
You are supplying the export licenses, are[n't] you?" According to
Murphy, Wei said "yes," even though Chitron had never obtained, nor
ever even applied for, an export license for any part. Wei later
e-mailed Wu about the exchange, telling him that the vendor had
"realized that we export most [of] their products to China," that
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"all their items (or most) should have [a] license for exporting,"
and that "they became susp[i]cious how we file the application or
forms for exporting." She warned Wu that it would be difficult to
obtain parts from that vendor in the future, due to "exporting
getting more strict, especially to China."
As more and more vendors discovered that Chitron planned
to ship parts to China, and as the vendors refused to sell to
Chitron unless it obtained export licenses, Chitron-US
staff--including Wei--began to note these so-called "problem
orders" in the tasking lists. By 2005, vendors were telling Murphy
"every day" that Chitron needed export licenses to ship the parts
it wanted to China; Murphy would then relay these messages to Wei,
who would inform Wu. Several Chitron-US employees raised concerns
about export restrictions with Wei, especially those regarding the
shipment of military parts to China, but according to the
employees' testimony, Wei either "laughed them off" or accused them
of "insubordination."
In a 2005 performance review, Wu expressed disappointment
that Murphy had failed to reach her "minimum purchases." Murphy
explained that it had been difficult for her to keep her numbers up
"because a lot of our vendors require export licensing." She left
the company a few months later, in part because she "didn't think
they were doing the right thing." In 2007, Gigliotti attended a
day-long informational meeting on export compliance, and he was
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"shaken up" by what he learned there about the liability he and
Chitron could face for their past conduct. He called Wu that
evening and told Wu that "we have to redo the entire workflow
process in the company to make sure that we're abiding by the
laws." A few days later, Gigliotti met with Wu in person to
discuss a proposal Gigliotti had drafted for how Chitron could
ensure its compliance with U.S. export laws. Wu responded that
Gigliotti was "overreacting" due to Gigliotti's "personal political
beliefs," that the export laws did not apply to Chitron because it
shipped to Hong Kong rather than to China, and that Gigliotti's
proposals would be too expensive and affect too much of Chitron's
business.
When Gigliotti raised the issue with Wu once more in
October 2007, Wu again accused Gigliotti of overreacting,
emphasizing that Gigliotti's priority was to "keep the U.S. office
running profitably." Wu added: "I'm not afraid to go to jail. Are
you?" Gigliotti quit the next day.
Only after Gigliotti's resignation did Wu implement some
export compliance measures, which included a formal process for
checking to see whether parts were export-controlled, export-law
training for Chitron personnel, and the appointment of Chitron-US
employee Bo Li as "compliance officer."
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B. Charges
In 2008, Wu and Wei were arrested and later indicted for
34 counts of export-related offenses. After a 23-day jury trial
and various post-trial motions, the two were ultimately convicted
as follows:
-The Munitions List Counts: Both Wu and Wei
were convicted on two counts for, on two
occasions in June 2006, exporting to China
without a license "phase shifters" that are
designated as defense articles on the U.S.
Munitions List, 22 C.F.R. pt. 121.
-The Commerce Control List Counts: Both Wu and
Wei were convicted on seven counts, and Wu was
convicted on five additional counts, for, on
various occasions between May 2004 and May
2007, exporting to China without a license
electronic converters that are controlled
under the Commerce Control List, 15 C.F.R. pt.
774.
-The Conspiracy Count: Both Wu and Wei were
convicted under 18 U.S.C. § 371 on one count
of conspiracy to violate both the Munitions
List and Commerce Control List restrictions.
-The SED Counts: Both Wu and Wei were
convicted on two counts for conspiring to file
materially false Shipper's Export Declarations
with the Commerce Department by misstating the
ultimate recipients and destinations of their
exports, in violation of 18 U.S.C. § 371, and
for devising a scheme to falsify or conceal
material facts in a matter within the
jurisdiction of the United States, in
violation of 18 U.S.C. § 1001(a)(1).
-The Immigration Count: Finally, Wei was
convicted on one count for making material
false statements in an immigration
application, in violation of 18 U.S.C. §
1546(a).
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Wu and Wei were acquitted on several additional counts.
Wu was sentenced to 97 months in prison, and Wei was sentenced to
36 months.
II.
A. Munitions List Counts
On the Munitions List counts, the prosecution alleged
that Wu and Wei twice unlawfully exported "phase shifters"2 to
China without a license. See 22 U.S.C. § 2778(b)(2); 22 C.F.R. pt.
121. Wu and Wei argue that the Munitions List convictions should
be reversed because the Munitions List restrictions are
unconstitutionally vague. In the alternative, they argue that
their convictions should be vacated because the jury instructions
were fatally flawed.3 We consider both arguments de novo. See
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir. 2010)
(jury instructions); United States v. Lachman, 387 F.3d 42, 50 (1st
Cir. 2004) (vagueness). We reject the constitutional vagueness
argument, but we agree that the jury instructions were flawed and
so vacate the convictions on the Munitions List counts. We address
2
Two waves are said to be "out of phase" when they have the
same frequency but reach their peaks at different points. A phase
shifter can change the phase of one of the two waves so that the
waves exactly line up with one another (or, vice versa, so that
waves that were previously "in phase" no longer line up with one
another). See generally Weisman, The Essential Guide to RF and
Wireless, at fig. 4-23 (2d ed. 2002).
3
Wu and Wei also raise several additional challenges to the
Munitions List convictions, but we need not reach them because we
vacate the convictions due to the flawed jury instructions.
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Wu and Wei's constitutional arguments inasmuch as they affect the
scope of the remand. Compare Burks v. United States, 437 U.S. 1,
11 (1978) (retrial barred by Double Jeopardy Clause if evidence
supplied by the government would be legally insufficient to sustain
conviction), with United States v. Urciuoli, 513 F.3d 290, 297 (1st
Cir. 2008) (new trial permissible where error is confined to jury
instructions), cert. denied, 131 S. Ct. 612 (2010).
Statutory and Regulatory Framework. The Arms Export
Control Act authorizes the President "to control the import and the
export of defense articles." 22 U.S.C. § 2778(a)(1). Under the
AECA, the President may "designate those items which shall be
considered as defense articles" and "promulgate regulations for the
import and export of such articles." Id. The President has
delegated this responsibility to the State Department. Exec. Order
No. 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977).
A designated "defense article" may not be exported from
the United States without a license from the State Department. See
22 U.S.C. § 2778(b)(2). The AECA criminalizes "willful[]"
violations of this export license requirement. Id. § 2778(c).
The AECA further provides that the designation of an item as a
"defense article[]" made via "regulations issued under [the
statute] . . . shall not be subject to judicial review." Id. §
2778(h). Because the United States suspended munitions exports to
China after the Tiananmen Square killings in 1989, the State
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Department will not grant a license to export defense articles to
that country. See 22 C.F.R. § 126.1(a); Suspension of Munitions
Exports to PRC, 54 Fed. Reg. 24,539 (June 7, 1989); see also United
States v. Holmquist, 36 F.3d 154, 157 (1st Cir. 1994), cert.
denied, 514 U.S. 1084 (1995).
Pursuant to the President's authority under the AECA, the
State Department has promulgated the International Traffic in Arms
Regulations ("ITAR"), 22 C.F.R. pts. 120-130, which include the
U.S. Munitions List, id. pt. 121. The Munitions List is not a
compendium of specific controlled items; instead, it is a series of
categories describing the kinds of items that qualify as "defense
articles" requiring export licenses. The Munitions List contains
"attributes rather than names," and for good reason. As has been
explained:
[A]n effort to enumerate each item would be
futile, not only because some are bound to be
overlooked (imagine a regulation that tried to
list all bicycles by manufacturer and model
number) but also because manufacturers change
their designations. The Mark 4 may be
succeeded by a Mark 5, or the CQ/T model may
become the CQ/X.
United States v. Pulungan, 569 F.3d 326, 328 (7th Cir. 2009)
(Easterbrook, C.J.).
A manufacturer unsure about whether a particular item is
a "defense article" covered by the Munitions List may file a
"commodity jurisdiction" (CJ) request with the State Department.
The determination is made by the Directorate of Defense Trade
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Controls within the State Department, in consultation with the
Departments of Defense and Commerce, as well as other government
agencies and industry. See 22 C.F.R. § 120.4.4 These CJ
determinations are never officially published in regulations or
other government pronouncements.
The specific phase shifters at issue in this case were
both made by M/A-Com, formerly a subsidiary of Tyco Electronics,
and bore the product numbers "MAPCGM0003" and "MAPCGM0002." The
government alleges that these phase shifters fell under Category
XI(c) of the Munitions List. That category covers "[c]omponents,
parts, accessories, attachments, and associated equipment
specifically designed or modified for use with the equipment in
[Categories XI(a) and XI(b)], except for such items as are in
normal commercial use." 22 C.F.R. § 121.1(c)(XI)(c).5
Vagueness. At the outset, we address the defendants'
argument that this carefully crafted regulatory scheme--which has
4
Nothing in the relevant regulation states that manufacturers
are the only parties that can submit CJ requests, see 22 C.F.R. §
120.4, although the State Department "prefer[s] that the
manufacturer submit the request because of the background and sales
information required." U.S. State Dep't, Directorate of Defense
Trade Controls, Commodity Jurisdiction (CJ) FAQs (Oct. 2011),
available at http://www.pmddtc.state.gov/faqs/documents/FAQ_CJ.pdf.
5
Categories XI(a) and XI(b), in turn, contain examples of
products that qualify as "[e]lectronic equipment . . . specifically
designed, modified or configured for military application," ranging
from "underwater acoustive active and passive countermeasures" to
systems "[d]esigned or modified using burst techniques . . . for
intelligence, security or military purposes." 22 C.F.R. §
121.1(c)(XI)(a), (a)(2), (b)(2).
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remained in place for more than a quarter century--is
unconstitutionally vague. The Fifth Amendment's Due Process Clause
requires that "a criminal statute provide adequate notice to a
person of ordinary intelligence that his contemplated conduct is
illegal." Buckley v. Valeo, 424 U.S. 1, 77 (1976) (per curiam);
see also United States v. Anzalone, 766 F.2d 676, 678 (1st Cir.
1985). The "void for vagueness doctrine" addresses at least two
discrete due process concerns: "first, . . . regulated parties
should know what is required of them so they may act accordingly;
second, precision and guidance are necessary so that those
enforcing the law do not act in an arbitrary or discriminatory
way." FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317
(2012).
Wu and Wei emphasize only the first of these two
concerns, and appropriately so, since Munitions List Category
XI(c), when placed within its larger regulatory framework, sets
forth reasonably precise standards for enforcement. To be within
the reach of the Munitions List at all, an item must qualify as a
"defense article," a term defined by the ITAR with considerable
specificity.6 Moreover, the particular Munitions List category at
6
"An article . . . may be designated or determined in the
future to be a defense article . . . if it: (a) Is specifically
designed, developed, configured, adapted, or modified for a
military application, and (i) Does not have predominant civil
applications, and (ii) Does not have performance equivalent
(defined by form, fit and function) to those of an article or
service used for civil applications; or (b) Is specifically
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issue in this case--Category XI(c)--ties its coverage to Categories
XI(a) and XI(b), which in turn contain specific examples of
electronic systems and components covered by the ITAR. See supra
note 5. And to ensure that the regulation does not ensnare
unwitting exporters selling to non-military clients, Category XI(c)
also explicitly excludes items "in normal commercial use." 22
C.F.R. § 121.1(c)(XI)(c).
All together, this framework provides specific guidance
that would allow individuals and law enforcement officials alike
to determine whether the phase shifters fall within Category XI(c).
At trial, both the government and the defendants presented expert
testimony regarding the design and the use of phase shifters; on
this basis the jury could have made discrete factual determinations
on the matter. Granted, the evidence presented at trial could
support alternative interpretations, yet "a regulation is not vague
because it may at times be difficult to prove an incriminating fact
but rather because it is unclear as to what fact must be proved."
Fox Television Stations, Inc., 132 S. Ct. at 2317. Here, it is
quite clear what specific facts would determine whether the phase
shifters fall within Category XI(c): whether they were designed
for military use; whether they are used in conjunction with the
designed, developed, configured, adapted, or modified for a
military application, and has significant military or intelligence
applicability such that control under this subchapter is
necessary." 22 C.F.R. § 120.3.
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items described in Categories XI(a) and (b); and whether they are
also amenable to normal commercial uses that would take them
outside the scope of the ITAR.
Wu and Wei have a somewhat stronger case when they
emphasize that Category XI(c)'s broad language and lack of
technical parameters do not give "fair notice" to a "person of
ordinary intelligence" that phase shifters are Munitions List-
controlled. Cf. id. at 2317. After all, as the defendants note,
phase shifters are small, technologically complex microchips;
unlike the bomb and ammunition parts at issue in other cases,7 the
phase shifters may not have a self-evidently military purpose in
the eyes of an ordinary person.
But Wu and Wei are not just ordinary people sending gifts
to friends living overseas. They managed a multimillion-dollar
enterprise; their company, Chitron, specifically pursued military
customers; and Wu promoted himself as both an exporter of military
supplies and an export compliance expert. The export of military
equipment in particular is a "sensitive business" directed by "a
relatively small group of sophisticated international businessmen."
United States v. Lee, 183 F.3d 1029, 1032 (9th Cir.), cert. denied,
528 U.S. 990 (1999); see also United States v. Swarovski, 592 F.2d
7See, e.g., United States v. Sun, 278 F.3d 302, 308-09 (4th
Cir. 2002) (tail-gun pods, underwater mines, missile fins, and
assemblies for various weaponry); United States v. Murphy, 852 F.2d
1, 4 (1st Cir. 1988) (Redeye missile, M-16 rifles, submachine guns,
and ammunition), cert. denied, 489 U.S. 1022 (1989).
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131, 133 (2d Cir. 1979). It is not too much to ask these
businessmen and businesswomen to comply with export control
regulations, even if the meaning of those regulations might not be
immediately obvious to someone lacking the same sophistication.
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498 (1982) (economic regulations are "subject to a less
strict vagueness test because . . . businesses, which face economic
demands to plan behavior carefully, can be expected to consult
relevant legislation in advance of action"). Furthermore, the
ACEA's implementing regulations establish the commodity
jurisdiction determination process in order to allow private
parties to obtain an official government answer on whether an item
is covered by the Munitions List before they engage in potentially
unlawful conduct, see 22 C.F.R. § 120.4, a feature that further
mitigates any concern about the law trapping an unwary dealer. See
Vill. of Hoffman Estates, 455 U.S. at 498; see also Lachman, 387
F.3d at 57; Lee, 183 F.3d at 1032.8
Finally, the AECA's scienter requirement covers only
"willful[]" violations of the law's export restrictions. 22 U.S.C.
§ 2778(c). The Act does not "impose criminal penalties on innocent
8
While State Department guidance suggests that Wu and Wei
would have needed a "letter of authorization" from M/A-Com in order
to obtain a CJ determination, see U.S. State Dep't, Commodity
Jurisdiction (CJ) FAQs, there is no reason to doubt that Wu and Wei
could have satisfied that requirement if they had made any effort
to do so.
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or negligent errors." United States v. Davis, 583 F.2d 190, 193
(5th Cir. 1978). Where a statute "explicit[ly] provi[des] that a
criminal violation of its terms must be 'willful,'" the void-for-
vagueness doctrine is especially inapposite, see United Union of
Roofers, Waterproofers & Allied Workers v. Meese, 823 F.2d 652, 659
(1st Cir. 1987) (Breyer, J.), since the statute itself ensures that
"good-faith errors are not penalized," Harris v. McRae, 448 U.S.
297, 311 n.17 (1980). By criminalizing only willful violations of
the law, the statute's scienter requirement "protects the innocent
exporter who might accidentally and unknowingly export a proscribed
component or part." Lee, 183 F.3d at 1032-33.
Outside the First Amendment context, we consider "whether
a statute is vague as applied to the particular facts at issue,"
for a defendant "who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied
to the conduct of others." Holder v. Humanitarian Law Project, 130
S.Ct. 2705, 2719 (2010) (emphasis added) (internal quotation marks
omitted). We need only determine whether the AECA and its
regulations were vague "as applied to these particular
defendants"--in other words, whether Wu and Wei "in fact had fair
notice that the statute and regulations proscribed their conduct."
United States v. Hsu, 364 F.3d 192, 196 (4th Cir. 2004). And as
the district court concluded, there was ample evidence at trial
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that Wu and Wei actually believed that the phase shifters required
government licenses for export.
Before any of the exports at issue occurred, Chitron-US
received a purchase order and later a price quotation from its
supplier, Richardson Electronic; both documents warned Chitron
specifically that the MAPCGM0003 phase shifter was subject to
export control under the authority of the State Department, that
exporting the item may require prior government approval, and that
the phase shifter fell under Category XI of the Munitions List.
Chitron-US also received similar warnings in regard to
the MAPCGM0002 phase shifter: first, from another supplier,
Microwave Components, Inc., which sent Chitron a price quotation
and later an invoice for the MAPCGM0002 phase shifters that
included a disclaimer cautioning that exports may require prior
authorization from the U.S. government and that it was the
purchaser's sole responsibility to comply with U.S. export
licensing requirements; and second, from Richardson Electronics,
which sent Chitron a price quotation on the MAPCGM0002 phase
shifters that included a warning that the part was subject to State
Department export controls, that it may require prior government
approval for export, and that it fell under Category XI of the
Munitions List.9
9
Wu and Wei raise several objections to this evidence. First,
they contend that the "purchase order" on which the district court
relied was in fact a "picking document" used internally by
-21-
The jury could infer that Wu and Wei were aware of these
warnings. The two were "hands-on micro-managers," Wei supervised
the Chitron-US office and was involved in the day-to-day
purchasing, and Wei communicated daily with Wu via tasking lists--
all good reasons to attribute Chitron's knowledge to the
defendants. Moreover, Wu and Wei repeatedly attempted to disguise
the fact that they were exporting to China and that they lacked the
necessary licenses to do so--further evidence that the defendants
knew they were violating U.S. export regulations when they shipped
the phase shifters to China without government permission. See
United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012); United
States v. Cranston, 686 F.2d 56, 62 (1st Cir. 1982).
Richardson, to which Chitron would never have had access. However,
testimony at trial indicated that the picking document was
identical to the packing list Richardson included in the package
for the buyer.
Second, Wu and Wei argue that the district court regarded the
Richardson warnings as unreliable, and admitted them as business
records only as to the question of "whether or not [the phase
shifters] were bought and sold," but not as to the contents of the
accompanying warnings that Chitron received. But in fact, the
court admitted the picking document for the MAPCGM0003 phase
shifter for all purposes, and admitted the testimony of Richard
Catey, a Richardson employee, for the purpose of establishing the
contents of the warnings that Chitron received.
Third, Wu and Wei claim that because the Richardson warnings
only advised that the phase shifters "may" require prior government
approval for export, the warnings fell short of constitutional
notice requirements. However, the warnings specifically referenced
the State Department's authority over the phase shifters and their
presence on Munitions List Category XI. As a whole, the language
of the warnings was sufficient to put Wu and Wei on notice and
direct them to conduct a further inquiry as to the license
requirements for exporting the phase shifters.
-22-
In sum, Wu and Wei cannot claim that they lacked "fair
notice" of the Category XI(c) restrictions, and those restrictions
are not so standardless as to allow for arbitrary enforcement.
Accordingly, we hold that the Munitions List restrictions--as
applied to Wu and Wei–-are not void for vagueness. Accord Hsu, 364
F.3d at 196-98 (rejecting void-for-vagueness challenge to the
Munitions List); Lee, 183 F.3d at 1031-33 (same); United States v.
Gregg, 829 F.2d 1430, 1437 (8th Cir. 1987) (same), cert. denied,
486 U.S. 1022 (1988); Swarovski, 592 F.2d at 132-33 (same).
Jury Instructions. Wu and Wei are on much stronger
footing when they challenge the district court's instruction to the
jury that it must accept without question the State Department's
after-the-fact determinations that the phase shifters were
controlled by the Munitions List. Wu and Wei argue that by
removing from the jury the question of whether the phase shifters
fell under the Munitions List, the instructions violated their
right to a jury finding on each essential element of the crime.
As an initial rejoinder, the government claims that since
the AECA precludes judicial review of defense article designations,
see 22 U.S.C. § 2778(h), the statute also bars jurors from deciding
whether a particular item identified as a defense article in a CJ
determination actually meets the criteria of the Munitions List.
The Seventh Circuit previously rejected this argument, observing
that § 2778(h) only covers designations made "in regulations," and
-23-
that a CJ determination by the Directorate is "not in a
regulation." Pulungan, 569 F.3d at 328. However, the government
urges us instead to follow the decision in Karn v. U.S Dep't of
State, 925 F. Supp. 1 (D.D.C. 1996), remanded on other grounds, 107
F.3d 923 (table), 1997 WL 71750 (D.C. Cir. 1997) (per curiam)
(unpublished opinion), which held that § 2778(h) does shield CJ
determinations from judicial review. See id. at 5-6.
In this case, however, we need not decide the difficult
questions of whether the provision's reference to "regulations"
includes CJ determinations or certifications to courts, or whether
the phrase "judicial review" applies to juries. Even if § 2778(h)
does bar jury review of CJ determinations and/or certifications,
there would be serious constitutional problems if we read that
provision to render Directorate determinations issued after exports
have already occurred as being retroactively dispositive as to the
coverage of the Munitions List. Cf. Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring). Our
concern is not whether the form of the designations sufficed, but
the timing: the government may not decide for itself that some
prior act by a criminal defendant violated the law, and thereby
remove that determination from the province of the jury.
As of June 2006, the time of the exports in question, no
official determination had been made as to the presence of the
phase shifters on the Munitions List. Indeed, at the time there
-24-
was disagreement even within the government as to the proper
categorization of the phase shifters. The items apparently had
some commercial utility, including in civilian aviation and cell
phone technology. In February 2002, the Commerce Department issued
Commodity Classifications concluding that the phase shifters were
dual-use items covered by the Commerce Control List (which would
indicate that they did not fall within the scope of Munitions List
Category XI(c)). But in August 2003, the Defense Department's Tri-
Services Committee verbally informed the manufacturer of the phase
shifters that the items should be ITAR-controlled and thus under
the authority of the State Department. This advice was never made
public.10
It was not until December 2007, 18 months after Chitron
exported the phase shifters in question, that the Directorate
10
The fact that government officials disagreed about the proper
classification of phase shifters does not mean that Category XI(c)
is fatally vague. For instance, two police officers might disagree
whether the barrel of a shotgun is greater or less than 18 inches,
perhaps because they have different ideas about how length should
be measured. See, e.g., United States v. Shaw, 670 F.3d 360,
365-66 (1st Cir. 2012) (discussing methods for measuring barrel
length). But that does not mean the statutory provisions defining
"firearm" by barrel length, 26 U.S.C. § 5845(a)(1)-(4), are void
for vagueness. A statute can satisfy the Due Process Clause and
still present occasional close calls.
Moreover, the fact that government officials disagreed about
the proper classification of phase shifters does not defeat the
mens rea element of the offense. Wu and Wei might well have
believed that the phase shifters were Munitions List-restricted
even while some government officials were doubtful. After all, the
defendants were not privy to the State and Commerce Departments
deliberations on the matter.
-25-
issued a CJ determination confirming that the MAPCGM0003 phase
shifter fell within the coverage of the Munitions List. The
Directorate never issued a CJ determination at all for the
MAPCGM0002 phase shifter, but rather simply certified to the
district court before trial, years after the export, that it was in
fact covered by the Munitions List.
Nevertheless, at the conclusion of the trial, the
district court, over the defendants' objections, instructed the
jury that it should not consider "the appropriateness of the
determinations made by the State Department" as to whether the
phase shifters fell under the Munitions List. Instead, the court
told the jury that it should only decide "whether the government
has proved beyond a reasonable doubt that the Secretary of State
determined that the charged parts were defense articles on the
[Munitions List] at the time of export."
To see why this instruction improperly wrested a key
question from the jury, we go back to first principles. "In the
criminal law, both a culpable mens rea and a criminal actus reus
are generally required for an offense to occur." United States v.
Apfelbaum, 445 U.S. 115, 131 (1980); accord United States v.
Vilches-Navarrete, 523 F.3d 1, 21 (1st Cir.) (Lynch, J., and
Howard, J., opinion of the court in part and concurring in part),
cert. denied, 555 U.S. 897 (2008). To use a straightforward and
familiar example: the crime of possessing an unregistered firearm,
-26-
26 U.S.C. § 5861(d), requires (1) that the defendant possessed an
unregistered weapon classified as a "firearm" under the National
Firearms Act (the actus reus), and (2) that the defendant "knew of
the features of his [weapon] that brought it within the scope of
the Act" (the mens rea). Staples v. United States, 511 U.S. 600,
619 (1994).
In the ordinary course, the actus reus element will be
easier to prove than the mens rea. The National Firearms Act says
that a shotgun having a barrel of less than 18 inches must be
registered, see 26 U.S.C. § 5845(a), and barrel length may be
readily measured. Thus, in United States v. Shaw, 670 F.3d 360(1st Cir. 2012), it was uncontested that the barrel of the
defendant's shotgun measured only sixteen and a quarter inches; the
issue in dispute was whether the defendant knew that the barrel was
shorter than the requisite length. Compare id. at 364 (majority
opinion), and id. at 368-69 (Boudin, J., concurring), with id. at
376 (Lipez, J., dissenting).
But even where the evidence is sufficient to show the
necessary mens rea, the government still must always "meet its
burden of proving the actus reus of the offense." United States v.
Whiteside, 285 F.3d 1345, 1353 (11th Cir. 2002). For instance, if
a defendant mistakenly thinks that the barrel of his unregistered
shotgun is shorter than eighteen inches when in fact it is longer
than that length, he is innocent of the crime of possessing an
-27-
unregistered firearm, even though he had the requisite guilty mind.
Cf. United States v. De La Torre, 599 F.3d 1198, 1204 (10th Cir.
2010) (government must "prove[] the defendant had the requisite
guilty mind" and "prove the defendant did possess the particular
controlled substance charged in the indictment"), cert. denied, 131
S. Ct. 227 (2010).
Here, to convict the defendants of violating the AECA, 22
U.S.C. § 2778(c), the jury had to find not only that the defendants
acted with the requisite mens rea (willfulness), but also that they
actually committed the actus reus charged (violation of regulations
issued under the statute). Put differently, even if the jury found
that Wu and Wei believed that phase shifters fell within the
Munitions List restrictions, it would still have to conclude that
the phase shifters actually did fall within the Munitions List
restrictions (regardless of Wu and Wei's beliefs). And as to
whether Wu and Wei violated regulations issued under the AECA, the
proper question for the jury was whether Wu and Wei's conduct
violated the relevant regulations as those regulations existed at
the time the conduct occurred. See Lindsey v. Washington, 301 U.S.
397, 401 (1937) ("The Constitution forbids the application of any
new punitive measure to a crime already consummated, to the
detriment or material disadvantage of the wrongdoer.").
In defense of the jury instructions, the government
argues that the question of whether the phase shifters fall within
-28-
the Munitions List is a legal issue not suited for jury
determination. Cf. Sparf v. United States, 156 U.S. 51, 106-07
(1895) (juries decide factual questions, not legal questions). In
support, it cites to our cases construing the felon-in-possession
statute, in which certain issues of law embedded in the definition
of "prior conviction" (such as whether a former felon's right to
carry a firearm has been restored) are denied to the jury. See,
e.g., United States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995).
Yet in Bartelho, we held that "a showing that the [defendant's]
right to carry a firearm has not been restored is not an element of
a [felon-in-possession statute] violation." Id. at 439. By
contrast, we have held that a showing that an exported item was on
the Munitions List is an element of a § 2778 violation. See United
States v. Murphy, 852 F.2d 1, 6 (1st Cir. 1988). And in order to
convict a defendant under a criminal statute, the government must
prove each element of the offense to a jury beyond a reasonable
doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see
also S. Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012).
This is not to deny that "Congress enjoys latitude in
determining what facts constitute elements of a crime which must be
tried before a jury and proved beyond a reasonable doubt and which
do not." Vilches-Navarrete, 523 F.3d at 20 (Lynch, J., and Howard,
J.). But Congress has never said that a criminal defendant may be
-29-
convicted on the basis of an ex post determination by a State
Department official outside the regulatory process.
The government also invokes United States v. Spawr
Optical Research, Inc., 864 F.2d 1467 (9th Cir. 1988), cert.
denied, 493 U.S. 809 (1989), and United States v. Hammoud, 381 F.3d
316 (4th Cir. 2004) (en banc), vacated on other grounds, 543 U.S.
1097 (2005), both involving government designations that juries
were required to accept. But crucially, in both cases the
government designations at issue were made before the defendants'
allegedly unlawful conduct occurred. See Hammoud, 381 F.3d at 331;
Spawr Optical Research, Inc., 864 F.2d at 1468-69. To determine
whether the defendants committed the charged actus reus by
violating the laws as they existed at the time, the trial courts
simply had to determine whether the prior designations had actually
been made. See Spawr Optical Research, Inc., 864 F.2d at 1473;
Hammoud, 381 F.3d at 331. In this case, no State Department
designation had been made at the time that the defendants engaged
in the charged conduct.
Perhaps it would have been possible for the prosecution
to persuade the jury--beyond a reasonable doubt--that the phase
shifters really did fall within the Munitions List restrictions as
those restrictions stood at the time of the defendants' exports.
For instance, the prosecution could have presented evidence that
the phase shifters were designed for use with other Category XI
-30-
equipment and that they were not in normal commercial use. 22
C.F.R. § 121.1(c)(XI)(c). Here, we only go so far as to say that
under the existing statutory and regulatory scheme, the question of
whether phase shifters were items controlled by Category XI(c) of
the Munitions List was a question for the jury--not a question that
could be decided ex post by the State Department as a matter of
law.
We acknowledge that instructional error is not
necessarily grounds for reversal, even when the error amounts to
the complete omission of an element of the charged offense. As the
Supreme Court has held, "where a reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error, the erroneous
instruction is properly found to be harmless." Neder v. United
States, 527 U.S. 1, 17 (1999); see also United States v. Gerhard,
615 F.3d 7, 29 (1st Cir. 2010). But here, the defendants did
contest the prosecution's claim that the phase shifters fell within
Category XI(c) of the Munitions List at the time of the export,
thus making this case different from Neder. In any event, given
the dissension between the State and Commerce Departments on this
very matter, we cannot "conclude[] beyond a reasonable
doubt . . . that the jury verdict would have been the same absent
the error." Cf. Neder, 527 U.S. at 17.
-31-
We also acknowledge that our holding means that in at
least some cases involving Category XI(c) of the Munitions List,
the question of whether a particular part fell within Category
XI(c) of the Munitions List at the time of the alleged export will
be a question for the jury. This is not out of the ordinary.
Juries are "commonly called upon to decide complex cases." Green
Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.
1993). These include highly technical patent and tax cases as well
as cases concerning terrorism and espionage. So too, juries are
capable of determining whether phase shifters are specifically
designed for military use with the items listed in Munitions List
Categories XI(a) and (b) and whether they are exempt from the
restrictions due to "normal commercial use." Although permitting
juries to decide questions like these may complicate enforcement of
our nation's export control regime, the constitutional rights at
issue--the guarantee of due process of law, the right to a jury
trial, the protection against ex post facto laws--are of
"surpassing importance." Apprendi, 530 U.S. at 476.11
11
In any event, as defense counsel noted at oral argument, it
appears that these complications may be largely avoided through the
State Department's own recently proposed amendment to Category XI
of the Munitions List, which would revise that provision,
especially subsection XI(c), to include a "positive list" of
specific controlled items in place of its current catalogue of
generic descriptions. See Amendment to the International Traffic
in Arms Regulations: Revision of U.S. Munitions List Category XI
and Definition for "Equipment," 77 Fed. Reg. 70,958 (proposed Nov.
28, 2012) (to be codified at 22 C.F.R. pt. 121). The proposed
revision of Category XI(c) appears to include phase shifters
-32-
Our decision to vacate the Munitions List convictions
only affects two of the seventeen counts on which Wu was convicted
and two of the thirteen counts on which Wei was convicted.12
B. Commerce Control List (CCL) Counts
On the Commerce Control List ("CCL") counts, Wu and Wei
were convicted on charges that they exported dual-use electronic
components to China repeatedly between May 2004 and May 2007. As
with the Munitions List counts, Wu and Wei challenge the jury
instructions, although they also argue that their conduct was
perfectly legal under the relevant regulations and that there was
insufficient evidence for the jury to conclude otherwise.
Statutory and Regulatory Framework. The International
Emergency Economic Powers Act ("IEEPA") imposes criminal penalties
specifically within its ambit, see id. at 70,963, and so, if
finalized, it would permit the government to prosecute future
exporters without proving anew each time that phase shifters are
within the scope of the Munitions List.
12
Because we vacate the Munitions List convictions on the
grounds that the district court's charge improperly wrested the
actus reus question from the jury, we do not reach the defendants'
argument that the jury instructions with respect to the mens rea
element were fatally flawed. According to the district court's
instructions, the jury could find that the mens rea element of the
Munitions List counts had been met if "the defendants willfully
made themselves blind to th[e] fact" that phase shifters were
defense articles on the Munitions List. Wu and Wei argue that
allowing them to be convicted on the basis of "willful blindness"
improperly lowered the mens rea requirement in § 2778(c). See
generally United States v. Roth, 628 F.3d 827, 834 (6th Cir. 2011)
(noting that "circuits have interpreted the willfulness element of
section 2778(c) and produced different results," and compiling
cases), cert. denied, 132 S. Ct. 94 (2011).
-33-
on any person who "willfully commits . . . or willfully conspires
to commit" a violation of regulations issued under the Act. 50
U.S.C. § 1705(c). The IEEPA's penalty provision applies to
violations of the Export Administration Regulations (EAR), 15
C.F.R. pts. 730-774. See generally United States v. Zhi Yong Guo,
634 F.3d 1119, 1121-22 (9th Cir.), cert. denied, 131 S. Ct. 3041(2011). Five provisions of the EAR are especially relevant to this
case.
First, the CCL describes items that are subject to the
EAR and assigns Export Classification Control Numbers (ECCNs) to
various categories of commodities, software, and technology. See
15 C.F.R. § 774.1 & Supp. No. 1. The CCL covers "dual use" items,
i.e., items that have commercial as well as military applications.
See id. § 730.3; Micei Int'l v. Dep't of Commerce, 613 F.3d 1147,
1150 (D.C. Cir. 2010).
Second, the Commerce Country Chart, 15 C.F.R. pt. 738
Supp. No. 1, assigns countries to various categories based on the
risk that exports to those countries will pose a threat to U.S.
national security or other vital interests. Even though Hong Kong
has been a special administrative region of the People's Republic
of China since 1997, Hong Kong and China are categorized
differently for EAR purposes. Hong Kong is subject to "NS Column
1" controls (as is every other country except Canada), while China
is subject to "NS Column 1" and "NS Column 2" controls.
-34-
Third, the EAR's "General Prohibition One," id. §
736.2(b)(1), prohibits the export and reexport of controlled items
to certain countries without a license or license exception. The
application of General Prohibition One depends on the Export
Classification Control Number of the item in question and the
Commerce Country Chart category of the country of destination. For
example, electronic components in the ECCN 3A001 category cannot be
exported or reexported to "NS Column 2" countries without a license
or license exception (although they may, in general, be exported or
reexported to "NS Column 1" destinations).
Fourth, a section titled "Important EAR terms and
principles," id. § 734.2, defines the words "export" and "reexport"
for purposes of the regulations. Most importantly, the so-called
"deemed export" provision in that section states that:
For purposes of the EAR, the export or
reexport of items subject to the EAR that will
transit through a country or countries or be
transshipped in a country or countries to a
new country or are intended for reexport to
the new country, are deemed to be exports to
the new country.
Id. § 734.2(b)(6).
Fifth, and finally, a section titled "Additional
permissive reexports (APR)," id. § 740.16, allows unlicensed
reexports of certain items from "cooperating countries" (a category
that includes Hong Kong) to destinations in "Country Group D:1" (a
-35-
category that includes China). Id. § 740.16(a); see also id. pt.
740 Supp. No. 1.
The items at issue here are digital-to-analog and analog-
to-digital converters. While such converters are used in ordinary
audio and video players and cell phones, Wu and Wei allegedly
exported converters that were rated for operation over an ambient
temperature range of minus 55 degrees Celsius (minus 67 degrees
Fahrenheit) to 125 degrees Celsius (257 degrees
Fahrenheit)--specifications more consistent with military systems
than with household electronic appliances.
CCL Jury Instructions. Wu and Wei's first argument for
vacating the CCL convictions is similar to the challenge that they
raise to the Munitions List counts: an ex post facto determination
by a government official that the items at issue fall within the
relevant export control category cannot substitute for a jury
finding that, at the time of export, the items were subject to
license requirements. However, the concerns about ex post facto
lawmaking that control our analysis of the Munitions List counts do
not lead to the same conclusion here.
By the time of the first converter shipment charged in
the indictment (May 8, 2004), analog-to-digital and digital-to-
analog converters rated for operation in the ambient temperature
range of -55 degrees Celsius to 125 degrees Celsius were already
listed on the CCL and assigned an Export Classification Control
-36-
Number of 3A001, meaning that they were subject to NS Column 2
controls and could not be exported to China without a license. See
15 C.F.R. pt. 774 Supp. No. 1 (2003); Implementation of the
Wassenaar Arrangement List of Dual-Use Items, 65 Fed. Reg. 43,130,
43,135 (July 12, 2000). The items allegedly exported on May 8,
2004--sixty Intersil digital-to-analog converters with part number
CA3338AD--clearly fall within the scope of the Commerce Control
List's ECCN 3A001 category; one can ascertain as much by comparing
the ordering information provided by the manufacturer with the
relevant regulation. Compare Intersil Corp., CA3338, CA3338A (File
No. 1850.2), at 10-11 (Aug. 1997) (stating that the temperature
range for part number CA3338AD is -55 degrees Celsius to 125
degrees Celsius), with 15 C.F.R. pt. 774 Supp. No. 1.
At trial, an expert witness from the Commerce Department
walked the jury through the steps involved in determining whether
a particular part requires a license for export under the CCL, and
the government presented a chart summarizing the results of the
expert's analysis with respect to other charged parts. Cf. Fed. R.
Evid. 1006 (admissibility of summary or chart to prove content of
voluminous records). Wu and Wei give us no cause to doubt any of
these determinations.
Here, the district judge properly instructed the jury
that to meet its burden with respect to the CCL counts, the
government had to prove beyond a reasonable doubt "that the charged
-37-
item was classified with an Export Control Classification Number
3A001 of the Commerce Control List at the time it was exported."
But the district judge followed this up by saying:
You should not consider the appropriateness of
the determinations made by the Department of
Commerce. You may only consider whether the
government has proven beyond a reasonable
doubt that the Secretary of Commerce
determined that the charged parts fell within
the ECCN of the Commerce Control List.
Wu and Wei argue that the last sentence of the above-
quoted instruction improperly wrested a question of fact from the
jury under the circumstances of the case. If the underscored
sentence referred to the Commerce Department's ex post
determination--issued as part of the Chitron investigation--that
the charged parts fell within ECCN 3A001, then we would agree. An
ex post determination does not substitute for a finding from the
trier of fact that at the time of the alleged exports--based on
then-existing regulations--the charged parts fell within the
relevant CCL category.
But that does not resolve the matter. As we have noted,
the harmless error standard applies to instructional errors, see
Neder, 527 U.S. at 17, and here, Wu and Wei have not explained how
they were prejudiced by the instructional error. It is uncontested
that the items described in the indictment carried specifications
that placed them squarely within the ECCN 3A001 category. Wei's
appellate brief says that "whether these parts were controlled by
-38-
the CCL was a contested issue," but the record appendix page
numbers cited do not support this claim. Wu and Wei do not argue,
for example, that the charged items were not analog/digital
converters or that the converters were incapable of operating over
the ambient temperature ranges for which they were rated. So
although the question of whether the items at issue fell within
ECCN 3A001 at the time of the alleged export should have been
submitted to the jury, we are confident that a properly instructed
jury would have answered that question in the affirmative.
Accordingly, under Neder, we conclude that the error was harmless.
Rejection of Defense of Additional Permissive Reexport
(APR) Exception. Wu and Wei also argue that as they read the
license exception for additional permissive reexports (APRs), no
license was required when the controlled converters were exported
to Hong Kong and then reexported to China. We dispose of this
argument rather easily, as the argument is based on a misreading of
the APR provision. That provision only applies to "[r]eexports"
from nations in Country Group A:1 and "cooperating countries." 15
C.F.R. § 740.16(a) (emphasis added). (Hong Kong is a "cooperating
country." Id. pt. 740 Supp. No. 1.) At most, the APR provision
exempts Hong Kong-based merchants from U.S. licensing requirements
when they import items from the United States and reexport those
items to China. But Chitron-US was not a reexporter; it was an
exporter. And the APR provision simply does not speak to the
-39-
question of whether an exporter needs a license when it ships
listed items abroad.
The Commerce Department first promulgated the APR
provision as part of an effort "to simplify, clarify, and make the
[Export Administration Regulations] more user-friendly."
Simplification of Export Administration Regulations, 61 Fed. Reg.
12,714 (Mar. 25, 1996). One can see how the APR exception might
advance this objective. For instance, in the case of items that
fall within ECCN 3A001, the exporter already must obtain a license
before shipping such items to a freight-forwarder or other
middleman in an "NS Column 1" country (e.g., Hong Kong) when the
items are "intended for reexport" to an "NS Column 2" country
(e.g., China). See 15 C.F.R. § 734.2(b)(6). Under such
circumstances, it would be duplicative to require that the freight-
forwarder or reexporter in the "NS Column 1" country also apply for
an additional license before proceeding with the contemplated
transaction.
But although the APR provision provides a license
exception for the overseas freight-forwarder or reexporter, it does
not relieve the U.S.-based exporter of the burden of complying with
the EAR. If it did, then the APR provision would allow exporters
to evade EAR requirements by routing shipments through countries
subject to looser controls. Cf. Lachman, 387 F.3d at 52(rejecting defendant's proposed interpretation of export controls
-40-
where it "would permit easy evasion of the regulation"). By their
very terms, the deemed-export provision and the APR license
exception address different classes of merchants: the former is
directed to those such as Chitron-US who export controlled items
from the United States with the intention that the items will be
reexported to a particular prohibited destination, while the latter
grants relief to overseas merchants who may sometimes deal in parts
of U.S. origin.13
Sufficiency of the Evidence. In the alternative, Wu and
Wei argue that even if a license was required for the shipment of
controlled converters to China via Hong Kong, the evidence
presented at trial was insufficient to show that the converters
actually reached China. Our review is de novo, viewing the
13
In a futile attempt to complicate matters, the defendants
draw our attention to a separate subsection of the APR, 15 C.F.R.
§ 740.16(i), which applies only to Sudan. That subsection allows
for reexports of certain controlled items to Sudan but adds a
clarification: "However, the export from the United States to any
destination with knowledge that [the controlled items] will be
reexported directly or indirectly, in whole or in part to Sudan is
prohibited without a license." The defendants claim that the
clarification would be superfluous unless the APR already allowed
the export of controlled items from the United States with the
knowledge that those items would be reexported to a listed country.
But the fact that the drafters of the APR included an extra
clarification in the Sudan subsection does not alter the plain
meaning of the rest of the APR's text. Where drafters include a
clarification "as a means of reminding those subject to the new
laws of . . . self-operative, previously enacted sanctions," the
clarification "necessarily establish[es] no more than that [the
drafters] chose in some cases to make assurance doubly sure."
United States v. Hansen, 772 F.2d 940, 946-47 (D.C. Cir. 1985)
(Scalia, J.), cert. denied, 475 U.S. 1045 (1986).
-41-
evidence "in the light most favorable to the verdict" and reversing
"only where no rational factfinder could have concluded that the
evidence presented at trial, together with all reasonable
inferences, established [this] element of the crime beyond a
reasonable doubt." United States v. Green, 698 F.3d 48, 56 (1st
Cir. 2012) (internal quotation mark omitted), cert. denied, 2013
U.S. LEXIS 1942 (Mar. 4, 2013).
Here, there was ample evidence to support the jury's
finding. Specifically:
-Sales spreadsheets in Wu's possession at the
time of his arrest indicated that the
converters in question were destined for
customers whose listed addresses were in
China;
-Three Chitron-US employees testified that
once parts reached Hong Kong, they were
forwarded to a Chitron office in Shenzen,
China;
-Chitron-US brochures said that the company's
"sole distributor" was based in Shenzen;
-Wu said on his resume that as President of
Chitron Electronics, he "[s]upervised and
coordinated business with Chitron USA to
import all its purchased goods into China"
(emphasis added); and
-Wei acknowledged at trial that a document she
last saved on her computer in October 2006
said that "Chitron's customer base is 99
percent Mainland Chinese customers."
A sufficiency-of-the-evidence challenge will fail even
when the evidence does "not exclude every reasonable hypothesis of
innocence"; if the evidence "can support varying reasonable
-42-
interpretations, the jury is entitled to choose among them."
United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.),
cert. denied, 464 U.S. 855 (1983). Here, there is scant support
for Wu and Wei's hypothesis of innocence. It was certainly
"reasonable" for the jury to conclude that the controlled
converters reached China (and might well have been unreasonable for
the jury to conclude otherwise). And the fact that the
government's case relied largely on circumstantial evidence does
not detract from its persuasive force. See United States v.
Cortés-Cabán, 691 F.3d 1, 12 (1st Cir. 2012).
C. Conspiracy Count
While Wu and Wei were charged with one count of
conspiracy, that one count covered both conspiracy to export
defense articles on the Munitions List and conspiracy to export
commodities on the Commerce Control List. Wu and Wei argue that
the district court's erroneous instructions regarding the Munitions
List counts "infected" the conspiracy count. We disagree.
It is black letter law that a defendant can be convicted
of conspiracy to commit a substantive offense even if he is
acquitted of the substantive offense itself. United States v.
Ríos-Ortiz, No. 11-2200, __ F.3d __, 2013 U.S. App. LEXIS 4068, at
*15 (1st Cir. Feb. 27, 2013) (compiling cases). For example, a
defendant can be convicted of conspiracy to steal a trade secret
even if the documents he sought to steal did not in fact contain
-43-
trade secrets. United States v. Yang, 281 F.3d 534, 542-43 (6th
Cir. 2002), cert. denied, 537 U.S. 1170 (2003); United States v.
Hsu, 155 F.3d 189, 203-04 (3d Cir. 1998). Similarly, a defendant
can be convicted of conspiracy to distribute cocaine and narcotics
even though, unbeknownst to him, the substances he was distributing
turned out to be innocuous. United States v. Pietri, 683 F.2d 877,
879-80 (5th Cir. 1982); see also United States v. Roman, 728 F.2d
846, 859 (7th Cir. 1984) ("To establish conspiracy [to distribute
L.S.D.] the items believed to be L.S.D. need not in fact be
L.S.D."), cert. denied, 466 U.S. 977 (1984); United States v.
Murray, 527 F.2d 401, 408-09 (5th Cir. 1976) (conspiracy to
distribute heroin even though substance turned out to be lactose).
"[T]he impossibility that the defendants' conduct would result in
consummation of the contemplated substantive crime is not
persuasive or controlling." United States v. Meyers, 529 F.2d
1033, 1037 (7th Cir.), cert. denied, 429 U.S. 894 (1976). See
generally United States v. Fiander, 547 F.3d 1036, 1042-43 (9th
Cir. 2008) (compiling cases).
Just as a defendant can be convicted of conspiracy to
steal trade secrets even when the information he conspires to steal
is not in fact a trade secret, and just as a defendant can be
convicted of conspiracy to distribute narcotics even when the
substance he conspires to distribute is not in fact a narcotic, so
too can a defendant be convicted of conspiracy to export items on
-44-
the Munitions List even when the items he conspires to export are
not in fact on the Munitions List. Thus, whether the phase
shifters that Wu and Wei exported to China were actually on the
Munitions List was not essential to the conspiracy charge. The
fact that the district court wrested this question from the jury
does not undermine the conspiracy count, because this question was
never part of the conspiracy inquiry anyway.
Wu and Wei also renew their argument that the district
court improperly instructed the jury that the mens rea element of
the Munitions List counts required only a finding of "willful
blindness," and they claim that this instructional error likewise
infected the conspiracy charge. As noted above, we do not reach
the question of whether the mens rea requirement of willfulness in
22 U.S.C. § 2778(c) encompasses "willful blindness," as we vacate
that the Munitions List convictions on other grounds. See supra
note 12. With regard to the conspiracy count, the district court
instructed the jury that willfulness was an element of the crime
and that "[t]o act 'willfully means to act voluntarily and
intelligently with the specific intent that the underlying crime be
committed." The court added that Wu and Wei could not be convicted
on the conspiracy count if they "act[ed] by ignorance, accident, or
mistake." The district court did not instruct the jury that it
could convict Wu and Wei of conspiracy on a "willful blindness"
theory. Thus, the propriety of the "willful blindness" instruction
-45-
in the context of the Munitions List counts has no bearing on the
validity of the conspiracy conviction.
III.
In addition to their convictions on the Munitions List
and CCL counts and the related conspiracy count, Wu and Wei were
convicted of conspiracy to file false and misleading Shipper's
Export Declarations; they were likewise convicted of violating 18
U.S.C. §§ 2 and 1001(a)(1) in connection with the inaccurate SEDs.
See 18 U.S.C. § 2 (criminal liability for aiding and abetting
offense against the United States); id. § 1001(a)(1) (criminal
liability for falsifying, concealing or covering up a material fact
in a matter within the federal government's jurisdiction). Wu and
Wei argue that the evidence supporting those convictions was
legally insufficient and that the jury instructions on those counts
were erroneous. These arguments fail.
Statutory and Regulatory Framework. Acting within its
authority under 13 U.S.C. § 301 (authorization to collect
information from exporters and importers), the Commerce Department
has promulgated the Foreign Trade Regulations, 15 C.F.R. pt. 30,
which, inter alia, require exporters to file "Shipper's Export
Declarations" electronically for all goods being sent to foreign
countries. See 15 C.F.R. § 30.2(1). Although certain shipments
are exempt from the SED requirement when the aggregate value of the
items is $2,500 or less, see id. § 30.37(a), SEDs still must be
-46-
filed for goods requiring an export license regardless of value,
id. § 30.2(a)(1)(iv).
The SED form instructs exporters to specify the "ultimate
consignee" and the "country of ultimate destination" for the items
being shipped. The governing regulations distinguish the "ultimate
consignee" from the "intermediate consignee": the ultimate
consignee is either the "end user" or the party "to whom final
delivery . . . of the goods will be made," while the intermediate
consignee is the agent who acts "with the purpose of effecting
delivery of items to the ultimate consignee." Id. § 30.1. The
country of ultimate destination is the "country where the goods are
to be consumed, further processed, stored, or manufactured, as
known to the [U.S. principal party in interest] at the time of
export." Id. The U.S. principal party in interest is the "person
or legal entity in the United States that receives the primary
benefit . . . from the export transaction." Id.
Challenges to the SED Counts. The defendants do not
seriously dispute that Chitron-US filed false SEDs: Wei listed
Hong Kong-based freight forwarders as the ultimate consignees on
some forms and listed Chitron's Hong Kong office as the ultimate
consignee on other such forms, when in fact the ultimate consignees
were the purchasers in mainland China. Moreover, Wei incorrectly
listed Hong Kong--rather than China--as the country of ultimate
destination. The regulations regarding SEDs are quite clear as to
-47-
the meaning of the relevant terms, and the ex post facto concerns
governing our analysis of the Munitions List counts are inapposite
here, as these rules were in place for more than a quarter century
before the shipments in question. See 41 Fed. Reg. 9134 (Mar. 3,
1976) (republication of 15 C.F.R. pt. 30).
Rather, the defendants argue that (1) the government
failed to prove that there was an agreement between Wu and Wei to
file false SEDs, (2) the government failed to prove that Wei knew
the SEDs were incorrect, and (3) the jury instructions regarding
the SED counts improperly incorporated different definitions of key
terms than the definitions on which Wei relied. We consider (and
reject) each of these arguments in turn.
Proof of Agreement. "The touchstone of conspiracy is an
agreement to do an unlawful act," United States v. Martinez-Medina,
279 F.3d 105, 113 (1st Cir.), cert. denied, 537 U.S. 921 (2002),
and the government's failure to produce evidence sufficient to show
such an agreement would be grounds for reversal. See, e.g., United
States v. Paret-Ruiz, 567 F.3d 1, 8 (1st Cir. 2009). But "[a]n
agreement between coconspirators may be proven by circumstantial
evidence, and it may be tacit." Id. at 6. Here, a reasonable jury
could certainly have concluded that Wu and Wei agreed--at least
tacitly--to file false SEDs.
The evidence supporting the conspiracy charge included:
-48-
-An e-mail from Wu to Wei in which Wu said,
"you do not have to say you sell parts to
China";
-Instructions from Wu to purchasers in
Chitron-US's Massachusetts office in which Wu
wrote that "[t]he key is to avoid submitting
end user info"; and
-An e-mail from Wei to Wu in which she
described complications in filling out an SED
form and then wrote, "In order not to waste
too much time, I have to reduce the value
under 2500 to make it simple."
Since exporters do not need to file SEDs for certain
shipments of items worth $2,500 or less, see 15 C.F.R. § 30.37(a),
this last piece of evidence supports the inference that Wei was
trying to circumvent SED requirements--and that she was doing so
with Wu's tacit consent. "Proof of [a defendant's] involvement in
the conspiracy may consist of indirect evidence, including
reasonable inferences drawn from attendant circumstances." United
States v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir.) (internal
quotation marks omitted), cert. denied, 544 U.S. 1007 (2005).
Here, the attendant circumstances included the fact that Wu and Wei
communicated daily about all aspects of Chitron's operations, along
with their obvious motive (in light of the Munitions List and
Commerce Control List rules) to misrepresent the ultimate
destination as Hong Kong. On this basis, a "rational trier of
fact" certainly could have found Wu and Wei guilty of the
conspiracy charged. See United States v. Alverio-Meléndez, 640
F.3d 412, 418 (1st Cir.), cert. denied, 132 S. Ct. 356 (2011).
-49-
Proof of Knowledge. For a false statement to trigger
criminal liability under 18 U.S.C. § 1001, "the false statement
must be made knowingly and willfully." United States v. Gonsalves,
435 F.3d 64, 72 (1st Cir. 2006); see also United States v. Yermian,
468 U.S. 63, 72-74 (1984). "Willfulness . . . means nothing more
in this context than that the defendant knew that his statement was
false when he made it or--which amounts in law to the same
thing--consciously disregarded or averted his eyes from its likely
falsity." Gonsalves, 435 F.3d at 72.
Wei testified at trial that she thought that the term
"ultimate consignee" meant "the person or the company who received
the package" and that the term "country of ultimate destination"
meant "the country where the package will land." She now argues
that she arrived at this understanding based on a Census Bureau
document entitled "Correct Way to Complete the Shipper's Export
Declaration," which she received by fax from a UPS employee in
2002. But the Census Bureau document defines "ultimate consignee"
as "the foreign party actually receiving the merchandise for the
designated end-use or the party so designated on the export
license."14 A jury could easily reject Wei's claim that she thought
the freight forwarder or the Chitron branch office in Hong Kong was
the party "receiving the merchandise for the designated end use,"
14
Since Chitron-US had no export license, the last clause in
the definition of "ultimate consignee" is irrelevant here.
-50-
especially when Wei knew that Chitron's customers were primarily in
mainland China. The jury was under no obligation to credit Wei's
testimony. See United States v. Kenrick, 221 F.3d 19, 31 n.14 (1st
Cir.) (en banc), cert. denied, 531 U.S. 961 (2000).
In any event, a former Chitron-US employee testified that
prior to the filing of the false SEDs at issue, she spoke on the
telephone with a Commerce Department official who explained that
the "ultimate consignee" is "the end-user who is using the part
where it's ultimately going, and it's not being shipped to anywhere
else." The employee further testified that she relayed this
information to Wei. So even if Wei had misinterpreted the SED
requirements in the first instance, the jury could conclude that
her misimpression had been corrected by her employee.
Jury Instructions. Finally, Wu and Wei argue that the
jury instructions improperly incorporated language from the Code of
Federal Regulations defining the terms "ultimate consignee" and
"country of ultimate destination" when the instructions should have
been limited to the definitions in the Census Bureau document on
which Wei allegedly relied. In so arguing, Wu and Wei confuse the
actus reus and mens rea elements of the relevant crime.
To convict the defendants under the false statements
statute, the jury had to find (1) that the defendants' answers on
the SED form "falsifie[d], conceal[ed], or cover[ed] up . . . a
material fact" (the actus reus) and (2) that the defendants did so
-51-
"knowingly and willfully" (the mens rea). See 18 U.S.C. § 1001(a).
The actus reus requirement means that the answers Wei gave on the
SED form to the questions about "ultimate consignee" and "country
of ultimate destination" must have been false or misleading,
regardless of what she and Wu believed. Even if the defendants
thought that they had misstated the ultimate consignee or country
of ultimate destination on the SED forms (i.e., even if the
defendants acted with the requisite mens rea),15 the jury still
needed to find that they actually did misstate these material
facts. And to find that, the jury needed to consult the
definitions of "ultimate consignee" and "country of ultimate
destination" under law (i.e., in the Code of Federal Regulations).
For that purpose, the plain language of the regulation--and not the
guidance document--is controlling. See Nat'l Family Planning &
Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 235-36 (D.C. Cir.
1992).
15
Of course, the definitions in the Census Bureau document may
be relevant to mens rea: if the jury found that Wu and Wei
genuinely believed on the basis of the guidance document that their
answers on the SED form were correct, then the requirement that
they must have acted "knowingly and willfully" would not be
satisfied. But the defendants do not object to the mens rea
portion of the jury instructions on the SED counts. Nor could
they, as the instructions emphasized that the mens rea element
required the defendants to have acted "purposely and
voluntarily, . . . with an intention to do something that the law
forbids . . . or with the specific intent to fail to do something
that the law requires to be done."
-52-
In a last-ditch effort, Wei argues in her reply brief
that the jury instructions improperly incorporated language from
the Export Administration Regulations defining "end-user," while it
is the Foreign Trade Regulations--not the EAR--that control the
construction of terms on the SED form. See 15 C.F.R. § 772.1(stating that the "end-user" for the purposes of the EAR is "not a
forwarding agent or intermediary"). "[A]ppellate arguments debuted
in a reply brief are not preserved," Soto-Padró v. Pub. Bldgs.
Auth., 675 F.3d 1, 8 (1st Cir. 2012), and that alone would be fatal
to Wei's claim. But even if the argument were not waived, it would
not succeed: while the exact words used by the district judge in
her instructions did come from the EAR, the substance of the
Foreign Trade Regulations is nearly identical. See 15 C.F.R. §
30.1 (ultimate consignee may be the end user or the foreign
principal party in interest, and "[i]n most cases, the forwarding
or other agent is not a principal party in interest").
Admittedly, the Foreign Trade Regulations say that a
forwarding agent is not the ultimate consignee in "most cases,"
while the jury instructions implied that a forwarding agent is
never the ultimate consignee. But that distinction makes no
difference to this case. Under the Foreign Trade Regulations, a
forwarding agent would only be the ultimate consignee if the
forwarding agent was the foreign person who "receive[d] the primary
benefit, monetary or otherwise, from the transaction," 15 C.F.R. §
-53-
30.1, and neither Wei nor Wu argues that the Hong Kong-based
freight forwarders or the Chitron office located there "receive[d]
the primary benefit" from any of the transactions in question.
IV.
Wei separately challenges the sufficiency of the evidence
supporting her conviction on one count of immigration fraud in
connection with her September 2002 application for a U.S. Permanent
Resident Card ("Green Card"). See 18 U.S.C. § 1546(a). The
indictment set forth two distinct theories in support of this
count. First, it charged that Wei's Green Card application
concealed her earlier work for Chitron-US's predecessor entity,
Perfect Science, to cover up the fact that she had violated U.S.
immigration laws by working there between 1996 and 1998. Second,
it claimed that Wei lied on her application when she answered that
she did not "intend to engage in the U.S. in any activity to
violate or evade any law prohibiting the export from the United
States of goods, technology, or sensitive information."
"The general rule is that when a jury returns a guilty
verdict on an indictment charging several acts in the
conjunctive . . . , the verdict stands if the evidence is
sufficient with respect to any one of the acts charged." Turner v.
United States, 396 U.S. 398, 420 (1970); accord United States v.
Mubayyid, 658 F.3d 35, 70 (1st Cir. 2011), cert. denied, 132 S. Ct.
2378 (2012). However, this general rule does not apply when one of
-54-
the alternative theories submitted to the jury rests on an
unconstitutional or legally flawed premise. See Skilling v. United
States, 130 S. Ct. 2896, 2934 (2010) (citing Yates v. United
States, 354 U.S. 298 (1957)); Hedgpeth v. Pulido, 555 U.S. 57, 60
(2008) (per curiam). In such cases, we can affirm the conviction
only if we conclude "beyond a reasonable doubt" that "the jury
verdict would have been the same absent the error." Neder, 527
U.S. at 17; cf. Hedgpeth, 555 U.S. at 61 (Neder harmless-error
analysis applies to alternative-theory errors).
Here, we find that sufficient evidence supported the
charge that Wei misrepresented her employment history on her Green
Card application to hide her previous visa violations. And since
the jury instructions with regard to the second theory were neither
unconstitutional nor otherwise fatally flawed, Wei's conviction for
immigration fraud must stand.
The statute, 18 U.S.C. § 1546(a), makes it a felony to
submit false information on an application for a visa or other
immigration document. The statute "unambiguously extends a mens
rea requirement" of knowledge, United States v. Villanueva-Sotelo,
515 F.3d 1234, 1239 (D.C. Cir. 2008), cert. denied, 556 U.S. 1234(2009); see also United States v. Archer, 671 F.3d 149, 154 (2d
Cir. 2011), and it only applies to false statements with respect to
"material" facts. United States v. Boskic, 545 F.3d 69, 85 (1st
Cir. 2008), cert. denied, 555 U.S. 1175 (2009). A false statement
-55-
on an immigration application is "material" if "disclosure of the
true facts would have led the government to make an inquiry that
might have uncovered other facts" that might lead to denial of the
application. United States v. Fedorenko, 597 F.2d 946, 951 (5th
Cir. 1979); see also Kungys v. United States, 485 U.S. 759, 770
(1988).
Applicants for a Green Card must submit a form listing
their employment history over the previous five years. When Wei
filled out this form in 2002, she only listed her employment at
Chitron from May 1998 onwards (the month in which she was issued an
employment authorization card). She omitted any mention of her
work at Perfect Science, as Chitron's branch office in
Massachusetts was formerly known, even though she had been under
contract to run the branch office from June 1996 onwards.
Wei argues that her work for Chitron before May 1998 was
as a "volunteer." While it is true that volunteer work need not be
reported as employment for Green Card application purposes, the
jury could reasonably conclude that Wei was no volunteer. The
contract she signed with Wu in June 1996 provided her with a 5
percent stake in Chitron "[a]s a compensation." While the contract
did designate Wei as a "volunteer," the fact that she was receiving
stock-based compensation in exchange for her services clearly
belies that designation.
-56-
The government also introduced a May 1997 e-mail from Wei
to Wu in which she mentioned that a lawyer had told her that her
work for Wu's company might violate the restrictions of her student
visa. A reasonable jury could rely on this e-mail as evidence that
Wei possessed the requisite mens rea for immigration fraud. As for
materiality, Wei's own attorney read into the record a statement
from the U.S. Citizenship and Immigration Services adjudicator who
handled Wei's case; the adjudicator stated that if she had known
that Wei's employment history was incomplete or inaccurate, that
would have "trigger[ed] further investigation." This alone is
enough to render the false statement "material," since a further
investigation could have revealed that Wu and Wei were not in
compliance with U.S. export laws. Cf. Fedorenko, 597 F.2d at 951.
Thus, an ample evidentiary foundation supports the charge
that Wei lied about her past employment on her Green Card
application. Her conviction must stand unless the instructions
regarding the government's alternative theory of immigration
fraud--that Wei lied about her intent to violate export
restrictions--were unconstitutional or otherwise invalid. While
Wei argues that the errors inherent in the Munitions List
instructions necessarily infect the immigration count, we reject
this suggestion.
The question which led us to vacate the Munitions List
convictions is separate from whether, as of September 2002, Wei
-57-
lied about whether she intended to violate the Munitions List
restrictions. One can intend to violate a law on Date 1 without
actually violating that law on Date 2, just as one can violate a
law on Date 2 without having intended to do so on Date 1.
Accordingly, if the jury convicted Wei of immigration fraud because
it thought she intended, as of September 2002, to violate the
Munitions List controls, the immigration fraud conviction could
stand regardless of whether Wei ever did ship Munitions List-
restricted parts to China.
Wei also argues that the Export Administration
Regulations (which include the Commerce Control List) do not
qualify as laws "prohibiting" the export of any goods because the
EAR merely requires a license under certain circumstances. There
is no basis for the argument. Wei was convicted of violating a
provision of the EAR entitled "General Prohibition One," see 15
C.F.R. § 736.2(b)(1), which forbids the shipment of dual-use parts
to specified countries without a license.
Since sufficient evidence supports at least one of the
two theories on which the government charged immigration fraud, and
since Wei has identified no fatal flaws in the instructions
regarding the other theory of immigration fraud, our inquiry into
this count is at an end.16
16
We also reject Wei's argument that the district court
deprived her of her constitutional right to present a defense by
excluding an ostensibly exculpatory e-mail. Wei sought to
-58-
V.
Wu separately alleges that the district court violated
his Sixth Amendment right to self-representation when it denied his
request for a continuance so that he could prepare to conduct the
case on his own, and later denied his related request to hire new
trial counsel. The district court was entirely reasonable in its
handling of Wu's last-minute request to change attorneys, and we
reject this argument.
introduce an e-mail that she sent to an attorney in January 2003
seeking the name of a lawyer with expertise in export control
regulations. In the e-mail, Wei said that Chitron "always
follow[ed] the rules" and did not "want to do any illegal business"
but that "sometimes we are not 100% sure about the law." When
Wei's trial counsel sought to introduce the e-mail into evidence
during direct examination of Wei on the twentieth day of the trial,
the prosecutor objected that the defense had not shared this e-mail
with the government until the morning of Wei's testimony. During
a sidebar conference on the issue, before the district court issued
any formal ruling on the objection, Wei's counsel volunteered:
"I'm not going to sneak it up on them, Judge. I won't use it."
The next day, during the government's cross-examination of
Chitron compliance officer Bo Li, the government asked Li whether
he was "privy to any discussions with Chitron's lawyer about
compliance policy," and Li said he was not. Wei's counsel argued
at sidebar that the questioning of Li "opened the door" to the e-
mail, but the district court rejected the defense lawyer's renewed
request to introduce the message into evidence.
The district court's handling of this issue was entirely
proper. Notably, the initial decision not to introduce the e-mail
was made by Wei's counsel, not the district court. Nor did Li's
testimony "open" any "door": Li did not join Chitron until 2005,
and there is no suggestion that Li was privy to the January 2003
correspondence. The right to introduce evidence in one's defense
is subject to reasonable restrictions, see Evans v. Verdini, 466
F.3d 141, 148 (1st Cir. 2006), cert. denied, 549 U.S. 1351 (2007),
and the district court certainly had the discretion to disallow the
e-mail on Day 21 of the trial after Wei's counsel had already
withdrawn his request to introduce it.
-59-
On the nineteenth day of the trial--the day after the
prosecution rested its case--Wu informed the district court for the
first time that there were "a lot of issues" between himself and
his trial counsel, and that he did not think that his attorney
"represented [his] best interest." When asked to explain the
source of the disagreement, Wu responded simply that he and his
lawyer "ha[d] many fundamental disagreements about this case." The
court told Wu that it could not start the trial all over again
based only on that explanation, and suggested that Wu think it over
and that it would discuss the matter with him at the end of the
day.
That afternoon, the court again asked Wu to explain the
nature of his disagreements with trial counsel. At first, Wu
expressed the same vague concerns that he had raised earlier. When
the court again pressed him to say more, Wu claimed that his lawyer
had not shown the jury the right pages of certain exhibits, that he
had failed to call two potential witnesses, and that he had not
elicited important evidence from two witnesses who had already
testified and whom Wu wanted to recall for further questioning.
The district court explained to Wu that he had an
absolute right to counsel, but that at this stage of the
proceedings, it was too late to give him a continuance to find a
new attorney based on the kind of "dilatory" complaints he had
raised. The court offered Wu three choices: he could proceed pro
-60-
se, he could continue with his trial counsel as his attorney, or he
could represent himself with that counsel assisting as standby
counsel. Wu asked for a three day continuance to find a new
attorney. The court denied Wu's motion and suggested that he speak
to the duty federal defender in order to think through his options.
Wu accepted this proposal.
The next morning, the trial's twentieth day, Wu told the
district court that he had decided to represent himself with the
assistance of the duty federal defender. The court explained to Wu
that it could not appoint him a public defender because he was not
indigent, but that it would consider allowing him to hire a new
attorney to serve as standby counsel if he could find one. In the
meantime, Wu could proceed pro se with his current attorney as
standby counsel. Wei's attorney then explained that if Wu would be
representing himself going forward, Wei would move to sever, due to
the "spillover effect" it would have on her defense.
Given this new complication and the importance of keeping
the jury's attention after twenty days of trial, the district court
delayed ruling on the issue until the end of the day, while the
witness on the stand continued to testify. Wu then declared that
he wanted to question the witness himself, without any standby
attorney. The court explained that Wu could not do that until it
made its decision on his motion to proceed pro se, and suggested
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that in the meantime he write down any questions that he thought
his lawyer should have asked of the witness.
Instead, Wu announced that, "[I]f that's the case, I
would like to keep [my current lawyer] as my attorney. I don't
have a choice." The court asked Wu if he was sure he would like to
keep his attorney, and Wu affirmed that he would proceed with his
current lawyer "for the rest of the trial." The trial continued in
accordance with Wu's decision. At the end of the day, Wu's counsel
reminded the court of Wu's initial request to represent himself.
The court noted that Wu had twice confirmed that he wanted to
proceed with his current lawyer, and asked Wu if that was still the
case; Wu responded that it was. Wu did not raise the issue again.
Wu had an absolute right to self-representation so long
as he made his request "clearly and distinctly prior to the
beginning of trial." United States v. Noah, 130 F.3d 490, 497 (1st
Cir. 1997). But once trial was under way, Wu's right to self-
representation became qualified, see id., and the district court
had "considerable discretion" to grant or deny Wu's request to act
as his own lawyer. Id. at 498. We review such decisions for abuse
of discretion, mindful that, after trial has begun, "[t]he right to
select or refuse specific counsel is always subject to practical
courtroom constraints." United States v. Betancourt-Arretuche, 933
F.2d 89, 93 (1st Cir.), cert. denied, 502 U.S. 959 (1991).
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There was no abuse of discretion here. A district court
considering a mid-trial request to proceed pro se "must balance the
legitimate interests of the defendant in self-representation
against the potential disruption of the proceedings already in
progress." Noah, 130 F.3d at 498 (quoting Williams v. Bartlett, 44
F.3d 95, 99 n.1 (2d Cir. 1994)). In this case, the district court
made every effort to inquire into the extent of Wu's disagreements
with his attorney, and then to accommodate Wu's complaints and his
desire to proceed pro se within the constraints of a complicated
and lengthy trial. Ultimately, the court made a reasonable
judgment in concluding that the disruption that would result from
delaying trial and severing Wei's case outweighed Wu's qualified
interest in self-representation. Betancourt-Arretuche, 933 F.2d at
94 ("trial court has extensive discretion over 'eleventh-hour'
requests for continuances in order to substitute counsel").17
17
Wu also argues that the district court violated his Sixth
Amendment right to confront the witnesses against him and to
present a complete defense when it denied his request to recall for
further questioning two witnesses who had already testified. In
fact, however, Wu never moved to recall these witnesses at all--he
simply expressed the desire to recall them in the context of
explaining to the district court why he was unhappy with his
attorney's performance. Nor did the district court deny any
request to recall witnesses. It merely explained to Wu that his
lawyer could not recall those witnesses. Regardless, the Sixth
Amendment "guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish." Stephens v.
Hall, 294 F.3d 210, 226 (1st Cir. 2002) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)), cert. denied, 537 U.S. 1129(2003). Wu received that opportunity and the court was not
constitutionally required to give him a second chance. See id.-63-
VI.
Accordingly, we affirm Wu and Wei's convictions on the
Commerce Control List counts (Counts 7, 12, 15, 16, 17, 18, and
19), the conspiracy count (Count 1), and the SED counts (Counts 31
and 32). We also affirm Wu's convictions on the additional
Commerce Control List counts (Counts 21, 22, 23, 25, and 27), and
affirm Wei's conviction on the immigration count (Count 34). We
vacate both defendants' convictions with respect to the Munitions
List counts (Counts 4 and 5).
We have said that "[w]hen a defendant successfully
challenges one of several interdependent sentences, the proper
course often is to remand for resentencing on the other
(nonvacated) counts." United States v. García-Ortiz, 657 F.3d 25,
31 (1st Cir. 2011), cert. denied, 132 S. Ct. 1126 (2012). We
believe that such a course is appropriate here. "[T]he authority
to reshape a sentence when multicount convictions garner mixed
reviews on appeal--some affirmed, some reversed--looms as an
integral component of the trial judge's broad sentencing
discretion." United States v. Pimienta-Redondo, 874 F.2d 9, 14
(1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989). Thus, we
remand to the district court for further proceedings consistent
with this opinion, including--as the district court deems
appropriate--proceedings to resentence the defendants on the counts
for which we have affirmed their convictions.
So ordered.
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