United States v. Yi-Chi Shih ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50144
Plaintiff-Appellant, D.C. Nos.
2:18-cr-00050-
v. JAK-1
2:18-cr-00050-
YI-CHI SHIH, AKA Yugi Shi, AKA JAK
Yichi Shih,
Defendant-Appellee. OPINION
UNITED STATES OF AMERICA, No. 21-50175
Plaintiff-Appellee, D.C. No.
2:18-cr-00050-
v. JAK-1
YI-CHI SHIH, AKA Yugi Shi, AKA
Yichi Shih,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
2 UNITED STATES V. SHIH
Argued and Submitted May 10, 2023
Pasadena, California
Filed July 18, 2023
Before: Andrew D. Hurwitz and Ryan D. Nelson, Circuit
Judges. ∗
Opinion by Judge Hurwitz
SUMMARY **
Criminal Law
In a case in which a jury returned a guilty verdict on all
counts in an indictment charging Yi-Chi Shih with various
offenses arising out of the export of monolithic microwave
integrated circuits (MMICs) to the People’s Republic of
China, the panel reversed the district court’s judgment of
acquittal on one count, affirmed Shih’s other convictions,
and remanded.
The Export Administration Regulations (EARs),
administered by the Department of Commerce’s Bureau of
Industry and Security, impose controls on certain exports to
“serve the national security, foreign policy, nonproliferation
of weapons of mass destruction, and other interests of the
∗
This case was decided by quorum of the panel. See 28 U.S.C. § 46(d);
Ninth Circuit General Order 3.2(h).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SHIH 3
United States.” After the expiration of the Export
Administration Act of 1979, the EARs were continued
pursuant to Executive Order 13,222, which declared a
national emergency under the International Emergency
Economic Powers Act (IEEPA).
The panel rejected Shih’s argument that Executive Order
13,222 was an improper invocation of presidential
authority. The panel also rejected Shih’s argument argued
that IEEPA violates the nondelegation doctrine.
The judgment of acquittal on Count 2 (exporting MMICs
without first having obtained the required license) rested on
the district court’s construction of the term “rated for
operation” in Export Control Classification Numbers
3A001.b.2.b and 3A001.b.2.c. The panel held that the
district court erred in concluding that this term requires post-
manufacture, pre-export testing. The panel therefore
ordered reinstatement of the jury verdict on that count.
Shih argued that the district court erred by failing to give
his proposed jury instruction on the fundamental research
exemption. The panel rejected this argument because other
instructions given in their entirety cover the defense theory.
The panel found no error in the district court’s
evidentiary rulings because they were well within the district
court’s discretion and Shih was able to present the substance
of his defense. The panel found no reversible error in the
admission of expert testimony. The panel held that even
assuming Shih’s objection was timely, he did not establish
that statements by the prosecutor during rebuttal argument
so infected the trial with unfairness as to make the conviction
a denial of due process. The panel found any error in the
wire and mail fraud instructions harmless.
4 UNITED STATES V. SHIH
Addressing sufficiency of the evidence, the panel held:
(1) as to Counts 1 and 2, a rational factfinder could find that
the exported MMICs were not exempt from the EARs as
fundamental research; (2) as to Counts 3 through 8, a
reasonable factfinder could find Shih’s misrepresentations
material, and that the evidence supports a finding that Shih
deprived a manufacturer of confidential information, a
cognizable property interest under mail and wire fraud
statutes; (3) the wire and mail fraud convictions were not
based upon the invalidated right-to-control property theory;
(4) as to computer fraud (Count 9), a rational factfinder
could find unauthorized access to a web portal in furtherance
of a specified crime; and (5) Shih’s attacks on Count 10
(money laundering) fail because the panel rejected his
attacks on the underlying counts.
The district court rejected Shih’s contention that he was
denied due process in connection with the district court’s
determination—on the government’s ex parte, in camera
motion—that none of certain allegedly classified material
was discoverable.
COUNSEL
Khaldoun Shobaki (argued), Assistant United States
Attorney, Cyber & I.P. Crimes Section Deputy Chief; James
C. Hughes and Melanie A. Sartoris, Assistant United States
Attorneys; Bram M. Alden, Assistant United States
Attorney, Criminal Appeals Section Chief; E. Martin
Estrada, United States Attorney of Central District of
California; Office of the United States Attorney; Los
Angeles, California; Virginia M. Vander Jagt and Joseph F.
Palmer, Appellate Counsels, National Security Division;
UNITED STATES V. SHIH 5
Steven M. Dunne, Appellate Unit Chief; Matthew G. Olsen,
Assistant Attorney General for National Security; United
States Department of Justice; Washington, D.C.; for
Plaintiff-Appellant.
James W. Spertus (argued), M. Anthony Brown, and Christa
Culver, Spertus Landes & Umhofer LLP, Los Angeles,
California, for Defendant-Appellee.
OPINION
HURWITZ, Circuit Judge:
After Yi-Chi Shih was indicted for various offenses
arising out of the export of semiconductors to the People’s
Republic of China, a jury returned guilty verdicts on all
counts. The district court subsequently entered a judgment
of acquittal on one count. The government appeals that
acquittal, and Shih appeals his convictions on the other
counts. We reverse the judgment of acquittal, affirm Shih’s
other convictions, and remand.
BACKGROUND
I. The Regulatory Scheme
The Export Administration Regulations (“EARs”),
administered by the Department of Commerce’s Bureau of
Industry and Security (“BIS”), impose controls on certain
exports to “serve the national security, foreign policy,
nonproliferation of weapons of mass destruction, and other
interests of the United States.” 15 C.F.R. §§ 730.1, 730.6. 1
1
All citations are to the 2014 version of the Code of Federal Regulations.
6 UNITED STATES V. SHIH
After the expiration of the Export Administration Act of
1979, see 50 U.S.C. § 2419 (2001), the EARs were
continued pursuant to Executive Order 13,222, which
declared a national emergency under the International
Emergency Economic Powers Act (“IEEPA”), 50 U.S.C.
§ 1702, and provided that
[a]ll rules and regulations issued or continued
in effect by the Secretary of Commerce under
the authority of the Export Administration
Act of 1979 . . . and all orders, regulations,
licenses, and other forms of administrative
action issued, taken, or continued in effect
pursuant thereto, shall . . . remain in full force
and effect as if issued or taken pursuant to
this order.
Exec. Order No. 13,222, 66 Fed. Reg. 44025 (Aug. 17,
2001). A violation of the EARs is a violation of IEEPA. 50
U.S.C. § 1705(a), (c).
Most items subject to the EARs are identified on a BIS
Commerce Control List and given an Export Control
Classification Number (“ECCN”). 15 C.F.R. Pt. 774, Supp.
1. An exporter of these items must obtain a license from the
BIS, 15 C.F.R. § 736.2(b)(1), and file an Electronic Export
Information (“EEI”), 15 C.F.R. § 758.1(b)(2).
The ECCNs relevant to this case are 3A001.b.2.b and
3A001.b.2.c, which apply to a monolithic microwave
integrated circuit (“MMIC”) that is either:
b.2.b. Rated for operation at frequencies
exceeding 6.8 GHz up to and including 16
GHz and with an average output greater than
UNITED STATES V. SHIH 7
1W (30 dBm) with a “fractional bandwidth”
greater than 10%;
b.2.c. Rated for operation at frequencies
exceeding 16 GHz up to and including 31.8
GHz and with an average output power
greater than 0.8 W (29 dBm) with a
“fractional bandwidth” greater than 10%.
15 C.F.R. Pt. 774, Supp. 1. MMICs are integrated circuits,
or “chips,” that operate at microwave frequencies. The
foundries that manufacture MMICs typically provide
designers with kits that can be rearranged to achieve
performance specifications and with software to run pre-
manufacture simulations. Final designs are collected on
reticles, pieces of glass whose patterns are stamped onto
wafers by the foundry. The wafers are then divided into
individual MMICs.
A catch-all “EAR99” basket applies the EARs to some
items without an ECCN. 15 C.F.R. § 732.3(b)(3). Although
export licenses are not required for EAR99 items not
destined for a recipient on a BIS “Entity List,” see 15 C.F.R.
Pt. 774, Supp. 4, an exporter must file an EEI if the items are
valued at more than $2,500 and destined for a country other
than Canada, 15 C.F.R. § 758.1(b).
“Publicly available technology” that “arise[s] during, or
result[s] from, fundamental research” is not subject to the
EARs. 15 C.F.R. § 734.3(b)(3)(ii). “Technology” is defined
as “information necessary for the ‘development,’
‘production,’ or ‘use’ of a product”; that information can
take the form of “technical data,” which includes
“blueprints, plans, diagrams, models, formulae, tables,
engineering designs and specifications, [or] manuals and
8 UNITED STATES V. SHIH
instructions written or recorded on other media or devices
such as disk, tape, [and] read-only memories.” 15 C.F.R.
§ 772.1. “Fundamental research” is “basic and applied
research in science and engineering, where the resulting
information is ordinarily published and shared broadly
within the scientific community.” 15 C.F.R. § 734.8(a).
II. Export of the MMICs
The charges against Shih arose out of the export of
MMICs to China. In September 2012, Shih and his
colleagues at Chengdu RML, a China-based company,
began conducting research for China Avionics Systems
(“AVIC 607”), a Chinese state-owned enterprise that
develops military weapons. In early 2013, Kiet Mai agreed
to help Shih procure MMIC foundry services from Cree, Inc.
Cree required Mai to submit an export compliance
questionnaire, which Shih completed. The completed
questionnaire indicated that (1) Cree’s customer was
MicroEx Engineering, a Los Angeles–based company run
by Mai; (2) the approximate frequency of the MMICs would
be “up to 18 GHz” and the approximate power “up to 10W”;
and (3) the product was neither subject to export control
regulations nor to be shipped overseas.
After Mai submitted the questionnaire and signed Cree’s
Process Design Kit Agreement, Cree gave him access to a
web portal that included the design kit, data reports, and
other materials. Although Cree creates unique login
credentials for each authorized user, Mai requested only one
set, which he emailed to Shih. Shih shared Mai’s username
and password with his Chengdu RML colleagues, who used
the Cree software to design the MMICs, respond to feedback
from Cree engineers, and run simulations to ensure that the
MMICs would meet performance goals.
UNITED STATES V. SHIH 9
Cree manufactured the RML-designed MMICs on
wafers suited for high-power microwave applications. On
December 26, 2013, Cree shipped four wafers to MicroEx.
In early 2014, Shih allegedly shipped them to China through
several intermediaries. Post-export testing in China
confirmed that the MMICs performed consistently with pre-
manufacture simulations.
III. Proceedings Below
In February 2018, a grand jury returned a ten-count
indictment against Shih, Mai, and a third codefendant.
Counts 1 and 2 charged conspiracy to violate and violation
of export control laws, 50 U.S.C. § 1705(a), (c); 18 U.S.C.
§ 2(b); Counts 3 through 6 charged mail fraud, 18 U.S.C.
§ 1341; Counts 7 and 8 charged wire fraud, 18 U.S.C.
§§ 1343, 2(b); Count 9 charged conspiracy to defraud the
U.S. government and a violation of the Computer Fraud and
Abuse Act, 18 U.S.C. §§ 371, 1030; and Count 10 charged
money laundering, 18 U.S.C. §§ 1956(a)(2)(A), 2(a). In
October 2018, the grand jury returned a first superseding
indictment charging four additional defendants under Count
1, extending the conspiracy timeframe, and adding eight new
counts against Shih. A second superseding indictment
amended Counts 12 through 14. In June 2019, after a 22-
day trial, a jury returned guilty verdicts against Shih on all
counts.
Shih then moved for a judgment of acquittal on Counts
1 through 10. In April 2020, the district court granted a
judgment of acquittal on Counts 1 and 2. Although rejecting
Shih’s argument that the MMICs were fundamental research
exempt from the EARs, the court held that they were not
“rated for operation” under ECCNs 3A001.b.2b.b and
3A001.b.2.c., 15 C.F.R. Pt. 774, Supp. 1, because they had
10 UNITED STATES V. SHIH
not been “tested and thereby confirmed to operate reliably
within the specified parameters” before export. It denied
Shih’s motion as to the remaining counts as well as his
motion for a new trial.
Upon reconsideration, the district court reinstated the
guilty verdict on Count 1, finding that overwhelming
evidence supported a conviction for conspiring to export an
item without filing a required EEI (Object C of Count 1’s
multi-object conspiracy) even if an export license were not
required (Object A). The court denied Shih’s renewed
motion for a new trial on Counts 3 through 8 and again
declined to grant a judgment of acquittal on Counts 9 and 10.
The district court issued a second amended judgment and
commitment order on July 28, 2021. The government had
in the meantime timely appealed the judgment of acquittal
on Count 2. Shih then timely appealed the second amended
judgment, and we consolidated the two appeals.
DISCUSSION
I. Constitutionality of the EARs
Shih argues that the EARs are invalid because Executive
Order 13,222 was an improper invocation of presidential
authority. He also argues that IEEPA violates the
nondelegation doctrine.
We start our analysis of the Executive Order from the
settled premise that courts must be hesitant to review the
executive’s declaration of a national emergency. See Haig
v. Agee, 453 U.S. 280, 292 (1981). Given that maxim, we
have previously rejected a similar claim challenging
continued enforcement of the EARs through executive
orders after previous lapses in the Export Administration
Act. See United States v. Spawr Optical Rsch, Inc., 685 F.2d
UNITED STATES V. SHIH 11
1076, 1081–82 (9th Cir. 1982). Although the prior executive
orders were issued under the Trading with the Enemy Act,
we see no reason to treat one issued pursuant to IEEPA any
differently. Compare 50 U.S.C. § 1701, with 50 U.S.C.
§ 4305.
Nor does IEEPA run afoul of the nondelegation doctrine.
The statute “meaningfully constrains” the executive’s
“discretion to define criminal conduct.” Touby v. United
States, 500 U.S. 160, 166 (1991). It specifies the steps the
President must take before invoking an emergency,
including consultation with Congress, and establishes
reporting requirements. See 50 U.S.C. § 1703. It also limits
the President’s authority to prohibit certain types of
transactions, see 50 U.S.C. § 1702(b), and prohibits the
punishment of unwitting violators, see 50 U.S.C. § 1705(c).
Because these statutory restrictions strike “a careful balance
between affording the President a degree of authority to
address the exigencies of national emergencies and
restraining his ability to perpetuate emergency situations
indefinitely by creating more opportunities for congressional
input,” we agree with every Circuit to have considered the
issue that IEEPA is constitutional. United States v.
Amirnazmi, 645 F.3d 564, 577 (3d Cir. 2011); see also
United States v. Dhafir, 461 F.3d 211, 215–17 (2d Cir.
2006); United States v. Arch Trading Co., 987 F.2d 1087,
1092–94 (4th Cir. 1993); United States v. Mirza, 454 F.
App’x 249, 255–56 (5th Cir. 2011).
II. Construction of “Rated for Operation”
The judgment of acquittal on Count 2 rested on the
district court’s construction of the term “rated for operation”
in ECCNs 3A001.b.2.b and 3A001.b.2.c. See 15 C.F.R. Pt.
774, Supp. 1. We hold that the district court erred in
12 UNITED STATES V. SHIH
concluding that this term requires post-manufacture, pre-
export testing.
“Regulations are interpreted according to the same rules
as statutes, applying traditional rules of construction.”
Minnick v. Comm’r, 796 F.3d 1156, 1159 (9th Cir. 2015).
The starting point is the “plain language,” United States v.
Bucher, 375 F.3d 929, 932 (9th Cir. 2004), and we give
undefined terms their ordinary meaning, see FCC v. AT&T
Inc., 562 U.S. 397, 403 (2011). “Ordinarily, a word’s usage
accords with its dictionary definition.” Yates v. United
States, 574 U.S. 528, 537 (2015).
The district court correctly recognized that numerous
dictionary definitions teach that the term “rated” means
“designed.” 2 It rejected these definitions, however, because
the EARs elsewhere include the phrase “designed or rated,”
see, e.g., ECCN 3A001.a.1, 15 C.F.R. Pt. 774, Supp. 1. The
2
See Rate, Webster’s Third New International Dictionary, Unabridged
(1961) (“to set an estimate on” or “to estimate the normal capacity or
power of (current flowing at the rated capacity)”); Rate, Oxford English
Dictionary Online, https://perma.cc/3T9H-FJK8 (“To estimate or assess
the . . . value” or “To assign a standard, optimal, or limiting rating”);
Rate, Vocabulary.com, https://perma.cc/2RFL-5GXZ (“estimate the value
of” or “assign a rank or rating to”); Rate, Dictionary.com,
https://perma.cc/RQ7Y-R9DU (“to estimate the value or worth of; appraise”
or “to esteem, consider, or account”); Rated Frequency, Electropedia,
https://perma.cc/EZ8X-VV4Z (“the frequency at which the transformer or
reactor is designed to operate”); Rated Voltage, Electrical Engineering
Dictionary (2000) (“the voltage at which a power line or electrical
equipment is designed to operate”); Rating, Oxford Dictionary of
Electronics and Electrical Engineering (5th ed. 2018) (“Stipulating or
the stipulation of operating conditions for a machine, transformer, or
other device or circuit and stating the performance limitations of such
equipment . . . . The designated limits to the operating conditions within
which the device or equipment functions satisfactorily are the rated
conditions . . . .”).
UNITED STATES V. SHIH 13
court therefore concluded that “rated” would be surplusage
unless it meant something other than “designed” and—
relying on testimony by experts in electrical engineering—
held that “rated for operation” means “that a manufactured
item has been tested, with the results confirming that it
operates within the specified parameters.” Because there
was no evidence that the MMICs were so tested before
export, the court held that the government failed to establish
that they were covered by ECCNs 3A001.b.2.b and
3A001.b.2.c.
We disagree. “The canon against surplusage is not an
absolute rule.” Marx v. Gen. Revenue Corp., 568 U.S. 371,
385 (2013). “Sometimes the better overall reading of the
statute contains some redundancy,” Rimini St., Inc. v. Oracle
USA, Inc., 139 S. Ct. 873, 881 (2019), and “[i]t is appropriate
to tolerate a degree of surplusage rather than adopt a
textually dubious construction,” United States v. Atl. Rsch.
Corp., 551 U.S. 128, 137 (2007).
This is the paradigm of such a case. In applying the
canon against surplusage, the district court created a gaping
loophole in the EARs that plainly contravenes their purpose.
The EARs
are intended to serve the national security,
foreign policy, nonproliferation of weapons
of mass destruction, and other interests of the
United States . . . . Some controls are
designed to restrict access to items subject to
the EAR by countries or persons that might
apply such items to uses inimical to U.S.
interests. These include . . . controls
14 UNITED STATES V. SHIH
designed to limit the military . . . support
capability of certain countries.
15 C.F.R. § 730.6. If “rated for operation” requires post-
manufacture, pre-export testing, one seeking to evade the
EARs could simply design an export-controlled item, run
reliable pre-manufacture simulations, freely export the item,
and then test it only after export to confirm that its
performance is consistent with the simulations. Although
Shih suggests that the district court’s interpretation ensures
that mere prototypes or research models are not subject to
the EARs, its holding sweeps far more broadly, exempting
all items not tested before export from the EARs. Moreover,
this reading is not necessary; the EARs expressly exempt
certain technology arising from fundamental research. See
15 C.F.R. § 734.3(b)(3)(ii).
By “reading words or elements into a [regulation] that do
not appear on its face,” Bates v. United States, 522 U.S. 23,
29 (1997), the district court’s construction also contravenes
a basic principle of statutory interpretation. Moreover, the
court improperly relied on witness testimony. See Teva
Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 332 (2015)
(noting that expert testimony about terms of art “cannot be
used to prove the proper or legal construction of any
instrument of writing” (cleaned up)). 3
Nor, as Shih claims, does an ordinary meaning
interpretation of “rated for operation” render the EARs
3
Although the government failed to raise this argument below, because
the argument “is a matter of statutory construction, and the record has
been fully developed, we exercise our discretion to address it.” El Paso
v. Am. W. Airlines, Inc. (In re Am. W. Airlines, Inc.), 217 F.3d 1161, 1165
(9th Cir. 2000).
UNITED STATES V. SHIH 15
unconstitutionally vague. The regulations “describe in detail
the technologies subject to export control” and thus “provide
law enforcement with clear guidance as to what technologies
they may police.” United States v. Zhi Yong Guo, 634 F.3d
1119, 1123 (9th Cir. 2011). “Moreover, the scienter
requirement in [IEEPA] further alleviates any concern over
the complexity of the regulatory scheme” because “the
government [is] required to prove beyond a reasonable doubt
that Defendant knew that a license was required for [ ]
export.” Id.III. Fundamental Research Instructions
Shih argues that the district court erred by failing to give
his proposed jury instructions on the fundamental research
exemption. We reject that argument because “other
instructions given in their entirety cover the defense theory.”
United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011).
Shih proposed the following general instruction:
Publicly available technology and software
are excluded from the Export Administration
Regulations, and therefore neither a license
nor an Electronic Export information filing is
required for the export of such materials.
Technology and software are “publicly
available” when they (i) Are already
published or will be published; OR (ii) Arise
during or result from fundamental research;
OR (iii) Are educational; OR (iv) Are
included in certain patent applications. The
government bears the burden of proving
beyond a reasonable doubt that the items at
issue in Counts One and Two were not
16 UNITED STATES V. SHIH
“publicly available” in any of these four
ways.
Shih also requested instructions defining “fundamental
research” as including “[r]esearch conducted by scientists,
or students at a university, a Federal agency, or a business
entity,” and “technology” as “technical data that may take
the form of models and/or engineering designs.”
Even assuming that Shih’s proposed instructions were
accurate, a defendant “is not entitled to an instruction in a
particular form,” and there is no reversible error if the
defense theory was “fairly and adequately covered” by other
instructions. United States v. Keyser, 704 F.3d 631, 641–42
(9th Cir. 2012). That was the case here. Instruction 21 stated
that the EARs “provide for certain exclusions and exceptions
to the requirements to obtain a license and to file Electronic
Export Information.” Instruction 29 then stated:
Certain evidence has been presented that
items involved in this case were classified
with ECCNs in the 3A001 category. In
determining whether the 3A001 category
applies, you should consider the following
matters: 1) the 3A001 category applies to
“commodities,” but not to “technology.”
“Commodities” are articles, materials, or
supplies other than technology or software.
“Technology” is specific information
necessary for the development, production,
UNITED STATES V. SHIH 17
or use of a product. This includes such
information that is publicly available.
The jury thus was told that if it found the MMICs to be
“technology,” neither a license nor an EEI filing was
required. 15 C.F.R. § 734.3(b)(3)(ii). And, the district court
accurately defined both “technology” and “commodity.”
See 15 C.F.R. § 772.1. Although the court did not enumerate
the various forms that technology can take nor provide
examples of when fundamental research results in a
commodity rather than technology, the instructions
addressed the key jury questions and allowed Shih to argue
that the MMICs were not covered by the EARs because they
were publicly available technology arising from
fundamental research.
IV. Right to Present a Defense
The defendant has a constitutional “right to put before a
jury evidence that might influence the determination of
guilt.” United States v. Stever, 603 F.3d 747, 755 (9th Cir.
2010) (cleaned up). But this is not “an unfettered right to
offer evidence that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Montana v.
Egelhoff, 518 U.S. 37, 42 (1996) (cleaned up). Because the
district court’s evidentiary rulings were “well within its
discretion” and Shih was able to “present the substance” of
his defense, we find no error. United States v. Waters, 627
F.3d 345, 353–54 (9th Cir. 2010).
A. Cross-Examination
A trial judge “has considerable discretion in restricting
cross-examination.” United States v. Bensimon, 172 F.3d
1121, 1128 (9th Cir. 1999). The judge “may limit cross-
examination in order to preclude repetitive questioning,
18 UNITED STATES V. SHIH
upon determining that a particular subject has been
exhausted, or to avoid extensive and time-wasting
exploration of collateral matters.” United States v. Weiner,
578 F.2d 757, 766 (9th Cir. 1978) (per curiam).
1. FBI Special Agent Miller
Special Agent Maureen Miller supervised the execution
of a search warrant at Shih’s house. On direct examination,
Miller testified that the agents conducting the search found
no Cree MMICs. On cross-examination, Shih sought to
establish that the agents had overlooked two boxes in an
upstairs office containing such MMICs.
The district court sustained the government’s objections
to questions posed to Miller that it found argumentative,
asked and answered, speculative, or about agent “error” or
“mistakes.” Shih’s counsel nonetheless extensively cross-
examined Miller on the search, and Miller admitted that her
team would have seized any boxes from Cree, addressed to
Mai, or containing MMICs.
The district court did not abuse its discretion. In
sustaining objections to questions about agent error, the
district court correctly noted that defense counsel had “asked
the question repeatedly” and it had already permitted
questions about whether the boxes “would . . . have been
material, if identified.” The court also reasonably found that
questions about “what constitutes an error . . . could open
other issues in terms of how to evaluate that term,” and that
defense counsel already had “a sufficient foundational basis
to make arguments . . . as to . . . the quality or error in the
work.” Indeed, defense counsel drew from this cross-
examination to challenge the quality of the agents’ search in
closing argument.
UNITED STATES V. SHIH 19
2. Codefendant Mai
Shih contends that the district court abused its discretion
by restricting on relevance grounds testimony by Mai about
Shih’s reputation for truthfulness. Even assuming that
testimony was relevant to Shih’s intent to defraud, see Fed.
R. Evid. 401(a), 404(a)(2)(A), any error was harmless.
During cross-examination, Mai stated that Shih had never
asked him to say anything untruthful to Cree. Additional
testimony about Shih’s general reputation for truthfulness
was unlikely to affect the verdict.
B. Admission of Evidence
Determining the admissibility of evidence “is a matter
first for the district court’s sound judgment under Rules 401
and 403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 384 (2008) (cleaned up). We review the district court’s
evidentiary rulings for abuse of discretion. See United States
v. Cherer, 513 F.3d 1150, 1157 (9th Cir. 2008). “Harmless
errors do not warrant reversal.” Id.
1. UCLA Personnel File
Shih attempted to introduce portions of his UCLA
personnel file during the cross-examination of FBI Agent
Alexander Storino. However, Storino had never seen the file
and could not provide the foundation necessary for
admission. The district court acknowledged that items in the
file might be relevant to Shih’s fundamental research
defense and, after defense counsel conferred with the
government, admitted a page of the file without objection.
Shih’s counsel renewed the request to publish other
portions of the file near the end of the defense case. After
the district court indicated a reluctance to admit the entire
file, defense counsel agreed to confer with the government
20 UNITED STATES V. SHIH
and bring any disputes to the court. But Shih did not seek to
publish any other part of the file before resting, instead
simply moving for their admission into evidence. The
district court admitted the exhibits after the close of evidence
but before closing arguments.
Any error in not admitting the evidence earlier was
harmless. Defense counsel did not seek to publish the
portions of the file later admitted before resting and freely
referred to them during closing argument. Moreover, neither
party disputed the facts established by these portions of the
personnel file—Shih was an acclaimed researcher, UCLA
knew about his affiliation with a Chinese company, and he
was integrated into the UCLA community. Nor were those
facts central questions for the jury.
2. Cree Boxes
The district court also acted within its discretion by
delaying the admission of two boxes that were purportedly
found in Shih’s home after the government’s search
allegedly containing Cree MMICs. The court declined to
admit the boxes during the cross-examination of Special
Agent Miller because her testimony failed to establish either
authenticity or chain of custody. That foundational ruling
was well within the court’s discretion. See United States v.
Edwards, 235 F.3d 1173, 1178 (9th Cir. 2000) (requiring
“sufficient proof so that a reasonable juror could find that the
evidence is in substantially the same condition as when it
was seized” (cleaned up)).
And although initially denying admission of the boxes,
the court nonetheless allowed defense counsel to extensively
cross-examine Miller about her team’s failure to find them.
The boxes were later conditionally admitted after the
foundational testimony of a defense paralegal who claimed
UNITED STATES V. SHIH 21
to have found them and Dr. Jeffrey Barner (a Cree manager)
testified as to the MMICs’ authenticity. The boxes were
fully admitted before closing arguments and Shih referred to
them in his closing, arguing that the alleged MMICs were
never sent to China and that the government’s failure to seize
the boxes casts doubt on its investigation. Thus, the court’s
reluctance to admit the boxes earlier did not prejudice Shih.
3. Cree Internal Emails
During the cross-examination of Dr. Barner, Shih sought
to admit internal Cree emails to establish that “Cree’s
concern is getting paid for the work it does rather than any
export compliance or other issues.” The district court denied
admission, finding the emails cumulative and only
minimally probative because they concerned the “assurance
of payment for services that are going to be provided,”
something “distant from the issue of compliance and
knowledge of the export regulations.” The emails were
admitted into evidence before closing arguments.
The court did not abuse its broad discretion in these
evidentiary rulings. In any event, there was no prejudice to
Shih; the emails were published to the jury and referred to
by defense counsel during closing.
4. YouTube Videos
Defense counsel sought to introduce seven YouTube
videos during Dr. Barner’s cross-examination to challenge
his testimony that access to the Cree portal was limited and
that its functionality was hidden from the public. The
government objected, noting that the videos did not
contradict Barner’s testimony and only three included Cree
employees. Although defense counsel offered to limit his
request to those with Cree employees, he also indicated that
22 UNITED STATES V. SHIH
he might not need the videos. The parties reargued
admissibility near the end of the defense case, but defense
counsel again decided to reserve the issue. At the close of
evidence but before closing arguments, the court admitted
two Cree videos and a third that mentioned Cree. It denied
admission of the other videos as cumulative and because it
was not clear that they related to the Cree web portal.
District courts have “considerable latitude even with
admittedly relevant evidence in rejecting that which is
cumulative.” Hamling v. United States, 418 U.S. 87, 127
(1974). The court did not abuse that discretion here. And,
any supposed error was clearly harmless. Barner confirmed
the existence of YouTube videos showing features of the
Cree portal and how it can be used to design MMICs during
his cross-examination, and Shih does not explain how the
excluded videos contradict any testimony. 4
V. Expert Testimony
Peter Mattis, a Research Fellow in China Studies at the
Victims of Communism Memorial Foundation, testified
during the government’s case that state-owned AVIC 607
“seems to be focused on electrical components that might
. . . be used in missiles or missile guidance systems.” Shih
contends that this testimony was (1) not properly disclosed;
(2) unreliable; (3) had no probative value or was unfairly
prejudicial; and (4) violated the Confrontation Clause.
Reviewing the first three challenges for abuse of discretion,
see United States v. Danielson, 325 F.3d 1054, 1074 (9th
4
We are not persuaded by Shih’s perfunctory argument on appeal that
the district court abused its discretion by delaying admission of dozens
of patents and scholarly articles authored by Shih and alleged co-
conspirators until the close of evidence. See United Nurses Ass’ns of
Cal. v. NLRB, 871 F.3d 767, 780 (9th Cir. 2017).
UNITED STATES V. SHIH 23
Cir. 2003); United States v. Aubrey, 800 F.3d 1115, 1129
(9th Cir. 2015), and the Confrontation Clause claim de novo,
see United States v. Vera, 770 F.3d 1232, 1237 (9th Cir.
2014), we find no reversible error.
A. Rule 16
The government must disclose information about
intended expert testimony “sufficiently before trial to
provide a fair opportunity for the defendant to meet the
government’s evidence.” Fed. R. Crim. P. 16(a)(1)(G). The
disclosure must contain “a complete statement of all
opinions that the government will elicit from the witness . . .
; the bases and reasons for them; the witness’s qualifications
. . . ; and a list of all other cases in which, during the previous
4 years, the witness has testified as an expert.” Id. The rule
“is intended to minimize surprise that often results from
unexpected expert testimony” and to enable the defendant
“to test the merit of the expert’s testimony through focused
cross-examination.” Id. advisory committee’s note to 1993
amendment.
Although the government likely failed to comply with
Rule 16 by not making complete disclosure about Mattis’s
testimony before trial, Shih has not demonstrated a
“likelihood that the verdict would have been different had
the government complied with the discovery rules.” United
States v. Mendoza-Paz, 286 F.3d 1104, 1111 (9th Cir. 2002)
(cleaned up). The district court held a Daubert hearing
during trial at which Shih cross-examined Mattis. After that
hearing, the court concluded that Mattis qualified as an
expert, used a sufficiently reliable methodology, and that
Shih had sufficient notice of the witness and the subjects of
his testimony. The court ruled that Mattis could not testify
24 UNITED STATES V. SHIH
about the Chinese military but could explain that AVIC
607’s business involved missiles.
Although Shih argues that he did not receive a “fair
opportunity to test the merit of the expert’s testimony
through focused cross-examination” at trial, he does not
explain how he would have cross-examined Mattis
differently than at the Daubert hearing, nor did he later pose
any questions he now claims were improperly excluded.
Shih never sought to recall Mattis during his case-in-chief,
even though the court indicated it might be willing to allow
this. And, he neither disputes that he had business dealings
with AVIC 607 nor the accuracy of Mattis’s testimony about
that entity.
B. Reliability
Expert testimony is admissible if
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to
determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the
testimony is the product of reliable principles
and methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
Fed R. Evid. 702. An expert can rely on information
reasonably relied upon by experts in their fields, Fed. R.
Evid. 703, but must be “more than a conduit or transmitter
for testimonial hearsay,” Vera, 770 F.3d at 1237 (cleaned
up).
UNITED STATES V. SHIH 25
At the Daubert hearing, Mattis explained that his
opinions were based on
open-source research, looking at company
websites, following individuals associated
with that company to look at what kind of
events they showed up at, looking through
the files and books that I’ve collected related
to the issues of China’s tech transfer [ ] or . . .
Chinese military modernization, as well as
conversations or questions to friends who
have followed these same organizations or
the same general area of organization.
Those files included news articles and publicly available
government documents discussing export-control violations.
During cross-examination, Mattis noted that the entities he
would testify about were mentioned in his forthcoming book
and that he primarily relied on Chinese- and English-
language publications and websites to develop his opinions.
On redirect, Mattis confirmed that it is “normal to rely on
publications and written works to help guide . . . opinions
and views,” which were also informed by his life experience
with China.
Although Mattis’s methodology relied in part on his
personal experiences, the district court did not abuse its
discretion in concluding that he properly applied those
experiences to open sources “in a manner that is beyond
what a typical layperson could do.” See United States v.
Damrah, 412 F.3d 618, 625 & n.4 (6th Cir. 2005). For the
same reason, the district court did not err in rejecting Shih’s
Confrontation Clause argument. See Vera, 770 F.3d at1237–40 (“The key question for determining whether an
26 UNITED STATES V. SHIH
expert has complied with [the Confrontation Clause] is the
same as for evaluating expert opinion generally: whether the
expert has developed his opinion by applying his extensive
experience and a reliable methodology.” (cleaned up)).
C. Relevance and Prejudice
The district court also acted within its discretion in
finding Mattis’s testimony relevant and likely helpful to the
jury. Fed. R. Evid. 401, 702(a). The testimony described
the objectives of companies that Shih was involved with,
information with which a lay juror would be unfamiliar. Nor
was a statement by Mattis regarding AVIC 607’s “focus[ ]
on electronic components that might . . . be used in missiles
or missiles guidance systems” unfairly prejudicial. Fed. R.
Evid. 703. The district court limited Mattis’s testimony
about the Chinese military in general, and Shih’s own
documents identified AVIC 607, his other customers, and
the military applications of MMICs. See United States v. El-
Mezain, 664 F.3d 467, 509 (5th Cir. 2011) (“Evidence which
tends to rebut a defendant’s claim of innocent action is
unlikely to be unduly prejudicial.”). Moreover, other experts
testified without objection about the MMICs’ potential
military applications.
VI. Prosecutorial Misconduct
The prosecutor stated in rebuttal argument that “the
customer for the Cree chip was AVIC 607, which you heard
develops missiles and missile guidance systems for China”;
mentioned the military, missiles, or AVIC 607 sixteen times;
called Shih’s position at UCLA the “perfect cover” for his
scheme; and described the evidence as “scary.” Although
Shih did not object during the argument, he filed a written
objection five days later, citing the district court’s
UNITED STATES V. SHIH 27
“preference . . . not to have counsel interrupt each other with
objections during argument.”
Even assuming that the objection was timely, Shih has
not established that the statements “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(cleaned up). The statements about AVIC 607 were
supported by the record. Mattis testified that the company
was focused on electronic components that could be used in
missiles, Exhibit 2106A identified AVIC 607 as a probable
customer, and other experts testified about the MMICs’
military applications.
Nor did the prosecutor inappropriately appeal to the
jurors’ fears. “A prosecutor may respond in rebuttal to an
attack made in the defendant’s closing argument.” United
States v. Hui Hsiung, 778 F.3d 738, 746 (9th Cir. 2015).
References to the military were in response to the defense
closing or came from the evidence, including Shih’s own
documents. The government’s two uses of the word “scary”
were a “fair response,” see United States v. Lopez-Alvarez,
970 F.2d 583, 597 (9th Cir. 1992), to defense counsel’s
closing, which accused the prosecution of a “distraction with
fear” and trying to “scare” the jurors.
VII. Wire and Mail Fraud Instructions
The parties do not dispute that the jurors were
improperly instructed on the wire and mail fraud charges
(Counts 3 through 8) because they were asked to find
whether Shih intended to deceive or cheat Cree, rather than
to deceive and cheat. See United States v. Miller, 953 F.3d
1095, 1098 (9th Cir. 2020). Even assuming arguendo that
Shih preserved his challenge to the instructions, as in Miller,
see id. at 1103, we find any error harmless.
28 UNITED STATES V. SHIH
The “harmless error inquiry [ ] focuses on what the
evidence showed regarding [Shih’s] intent to defraud and
whether we can conclude beyond a reasonable doubt that the
jury verdict would have been the same absent the error.”
United States v. Saini, 23 F.4th 1155, 1164 (9th Cir. 2022)
(cleaned up). We find the instructions here harmless for
many of the same reasons as we did in Miller. Like the
instructions in Miller, 953 F.3d at 1103, the district court’s
instruction on the “scheme to defraud” element required the
jury to find that Shih “knowingly participated in a scheme or
plan to defraud Cree, or a scheme or plan for obtaining
money or property from Cree by means of false or fraudulent
pretenses, representations, or promises.” Miller noted that
“a scheme . . . to defraud or obtain money or property”
encompasses “the intent not only to make false statements or
utilize other forms of deception, but also to deprive a victim
of money or property by means of those deceptions.” Id. at
1101. Here, as in Miller, “[i]f the jury had believed that there
was any inconsistency between this language and the
subsequent language about ‘deceive or cheat,’ they
undoubtedly would have sought further instruction, which
they did not.” Id. at 1103.
Moreover, there was powerful evidence that Shih
intended to defraud Cree. See Saini, 23 F.4th at 1164. In
completing the export compliance questionnaire, Shih
obscured the identity of both the customer and end user and
stated that the MMICs would not be shipped abroad. Mai
falsely told Cree that MicroEx would design, test, and use
the MMICs. And Shih used Mai to obtain login credentials
without letting Cree know that he would be using them.
UNITED STATES V. SHIH 29
VIII. Sufficiency of the Evidence
“There is sufficient evidence to support a conviction if,
reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Ross, 123 F.3d 1181, 1184 (9th Cir. 1997).
Sufficient evidence supports the convictions on the ten
counts that Shih challenges.
A. Violation of the EARs
As to Counts 1 and 2, a rational factfinder could find that
the exported MMICs were not exempt from the EARs as
fundamental research. There was sufficient evidence to
allow a jury to find that the Cree MMICs were
“commodities” rather than “[p]ublicly available technology”
that “ar[o]se during, or result[ed] from, fundamental
research.” 15 C.F.R. § 743.3(b)(3)(ii); see also 15 C.F.R.
§ 772.1 (defining “commodity,” “technology,” and
“technical data”). Multiple witnesses explained that the
MMICs had various practical applications. Shih’s business
plans suggested that the MMICs would be used by a specific
customer for such applications, and were thus not “specific
information necessary for the ‘development’, ‘production’,
or ‘use’ of a product.” 15 C.F.R. § 772.1 (defining
“technology”). 5
5
Shih also contends that the evidence is insufficient to support the guilty
verdicts on these counts because the MMICs did not undergo post-
manufacture, pre-export testing. We reject this contention because it
relies upon the district court’s erroneous construction of the relevant
EARs. See supra Discussion Part II.
30 UNITED STATES V. SHIH
B. Mail and Wire Fraud
Sufficient evidence also supports the verdicts on Counts
3 through 8. To establish mail and wire fraud, the
government must prove “1) a scheme to defraud, 2) a use of
the mails or wires in furtherance of the scheme, and 3) a
specific intent to deceive or defraud.” United States v.
Bonallo, 858 F.2d 1427, 1433 (9th Cir. 1988).
Misrepresentations must be material. See United States v.
Brugnara, 856 F.3d 1198, 1207–08 (9th Cir. 2017).
Shih plainly made misrepresentations to Cree. On
Cree’s export compliance questionnaire, Shih falsely listed
MicroEx as the customer. And, the jury could infer that Mai
spoke on Shih’s behalf when falsely telling Cree that
MicroEx would be “doing the design, testing and use of the
MMICs.”
A reasonable factfinder could find those
misrepresentations material. Dr. Barner testified that Cree
typically does not provide its foundry materials to customers
in China and would not ship wafers to China that contain
proprietary technology. He also testified that access to
Cree’s design portal was limited to authorized users covered
by the Portal Design Kit Agreement and that Cree would
have cut off Mai’s access had it known that Mai had shared
his login credentials with third parties who had not signed
the agreement.
The evidence also supports a finding that Cree was
deprived of confidential information, a cognizable property
interest under the mail and wire fraud statutes. See
Carpenter v. United States, 484 U.S. 19, 22–26 (1987). Cree
limited access to its portal—which contained confidential
information about Cree’s design process—to authorized
users. A rational factfinder could find that Shih deprived
UNITED STATES V. SHIH 31
Cree of that information when Mai shared his login
credentials with Shih and other unauthorized users.
Nor were the wire and mail fraud convictions based upon
a right-to-control-property theory, an invalidated theory
under which a defendant could be found “guilty of wire fraud
if he schemes to deprive the victim of potentially valuable
economic information necessary to make economic
decisions.” Ciminelli v. United States, 143 S. Ct. 1121, 1124
(2023) (cleaned up). The government’s second superseding
indictment and trial strategy did not rest on that theory. Cf.
id. at 1125. Rather, the government has always argued that
Cree was deprived of its confidential information because it
would not have provided the information but for Shih’s
fraud. Nor was the jury improperly instructed about what
constitutes “property.” Cf. id.C. Computer Fraud
To establish computer fraud, the government was
required to prove that Shih conspired to (1) intentionally
access Cree’s portal without authorization, (2) in furtherance
of a criminal act. See 18 U.S.C. § 1030(a)(2)(C),
(c)(2)(B)(iii).
A rational factfinder could find that Shih and his
Chengdu RML colleagues were not authorized to access the
Cree web portal. The evidence was also sufficient to
establish that Shih gained unauthorized access to the portal
through Mai by hiding his identity from Cree, despite his
familiarity with the Portal Design Kit Agreement.
Moreover, a rational factfinder could reject Shih’s argument
that he was authorized to access the portal as a consultant for
JYS Technologies. Although Shih argues that JYS had
agreements with MicroEx, Mai testified that MicroEx never
did any work for JYS. Because sufficient evidence also
32 UNITED STATES V. SHIH
supports the verdict on at least one of Counts 1 through 8, a
rational factfinder could find that the unauthorized computer
fraud access was in furtherance of a specified crime.
D. Money Laundering
Shih contends that the Count 10 conviction cannot stand
because the money laundering was alleged to further the
unlawful activity specified in Counts 1 through 9, which he
argues that the government did not prove. Because we reject
his attacks on those counts, we affirm the conviction on
Count 10. 6
IX. Classified Information Procedures Act
Before trial, the government filed an ex parte, in camera
motion requesting that the court find certain classified
information not discoverable or, in the alternative, that the
information need not be disclosed under Section 4 of the
Classified Information Procedures Act (“CIPA”), 18 U.S.C.
app. 3.
When considering a motion to withhold
classified information from discovery, a
district court must first determine whether . . .
the information at issue is discoverable at all.
If the material at issue is discoverable, the
court must next determine whether the
government has made a formal claim of the
state secrets privileges, lodged by the head of
6
Shih also argues that the convictions on Counts 1, 9, and 10 should be
vacated because they included a legally invalid object or predicate
offense. See Skilling v. United States, 561 U.S. 358, 414 (2010).
Because we find no legal flaw underlying those counts, we reject the
argument.
UNITED STATES V. SHIH 33
the department which has actual control over
the matter, after actual personal consideration
by that officer.
United States v. Sedaghaty, 728 F.3d 885, 904 (9th Cir.
2013) (cleaned up).
The district court followed this procedure and
determined that none of the allegedly classified material was
discoverable. Shih contends that he was denied due process.
However, we have stated that precisely such a “challenge . . .
is a battle already lost in the federal courts,” noting that “in
a case involving classified documents, [ ] ex parte, in camera
hearings in which government counsel participates to the
exclusion of defense counsel are part of the process that the
district court may use in order to decide the relevancy of the
information.” Id. at 908 (cleaned up). 7
X. Cumulative Error
“In some cases, although no single trial error examined
in isolation is sufficiently prejudicial to warrant reversal, the
cumulative effect of multiple errors may still prejudice a
defendant.” United States v. Frederick, 78 F.3d 1370, 1381
(9th Cir. 1996). But, “many of [Shih’s] alleged errors are
not errors at all.” United States v. Lindsey, 634 F.3d 541,
555 (9th Cir. 2011). And, Shih has not established that any
errors made his defense “far less persuasive than it might
7
Shih also asserts that “the district court incorrectly found that the
submitted classified information was not ‘material to preparing the
defense.’” We decline to consider this argument because it was first
raised in Shih’s reply brief. See Cedano-Viera v. Ashcroft, 324 F.3d
1062, 1066 n.5 (9th Cir. 2003).
34 UNITED STATES V. SHIH
otherwise have been.” Parle v. Runnels, 505 F.3d 922, 927
(9th Cir. 2007) (cleaned up).
CONCLUSION
We REVERSE the judgment of acquittal on Count 2 and
order reinstatement of the guilty verdict on that count,
AFFIRM the convictions on all other counts, and
REMAND for further proceedings consistent with this
opinion. 8
8
Shih’s motion for judicial notice of two government manuals and two
agency specifications, Dkt. 92, is GRANTED.