United States v. Smith

18-2141-cr
United States of America v. Smith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2019
Argued: October 11, 2019 Decided: December 23, 2019
Docket No. 18-2141-cr
UNITED STATES OF AMERICA,
Appellee,
— v. —
SAMMY SMITH,
Defendant-Appellant.
B e f o r e:
LYNCH, LOHIER and SULLIVAN, Circuit Judges.
Defendant-Appellant Sammy Smith appeals from a judgment of the United
States District Court for the Eastern District of New York (Weinstein, J.),
sentencing him to two months’ imprisonment for attempting to export defense
articles without a license in violation of the Arms Export Control Act of 1976, 22
U.S.C. § 2778, and its implementing regulations. Smith argues that the statutory
and regulatory scheme under which he was convicted infringes on protected
speech in a manner that is substantially overbroad, in violation of the First
Amendment. Because Smith challenges aspects of the statute and regulations that
are not the basis for his conviction, he lacks Article III standing to bring an
overbreadth claim. The judgment of the district court is therefore AFFIRMED.
ANDREW D. GRUBIN, Assistant United States Attorney, for
Richard P. Donoghue, United States Attorney for the
Eastern District of New York, New York, NY (Kevin
Trowel, Assistant United States Attorney, on the brief) for
Appellee.
EDWARD S. ZAS, Federal Defenders of New York, Inc., Appeals
Bureau, New York, NY for Defendant-Appellant.
GERARD E. LYNCH, Circuit Judge:
This case concerns a criminal defendant’s facial First Amendment
challenge to a federal statutory and regulatory scheme that controls the export
and import of “defense articles” such as weapons. The Defendant-Appellant,
Sammy Smith, pled guilty in the United States District Court for the Eastern
District of New York (Jack B. Weinstein, J.) to a charge of attempted export of
defense articles without a license, after federal agents at John F. Kennedy
International Airport, on two separate occasions, discovered handgun parts in
luggage he had checked in connection with outgoing international flights. Smith
2
argues that the statutory and regulatory scheme under which he was convicted
infringes on protected speech in a manner that is substantially overbroad, in
violation of the First Amendment. We conclude that the statute and regulations
are constitutional as applied to Smith and that Smith lacks standing to bring a
facial overbreadth challenge. We therefore AFFIRM the judgment.
BACKGROUND
I. Statutory and Regulatory Background
The Arms Export Control Act of 1976 (“AECA”), 22 U.S.C. §§ 2751, et. seq.,
provides that “no defense articles or defense services . . . may be exported or
imported without a license for such export or import.” 22 U.S.C. § 2778(b)(2). It
also provides for criminal penalties up to a $1,000,000 fine and 20 years in prison
for “[a]ny person who willfully violates any provision of this section . . . or any
rule or regulation issued under this section.” Id. § 2778(c). The AECA authorizes
the President “to designate those items which shall be considered as defense
articles and defense services for the purposes of this section and to promulgate
regulations for the import and export of such articles and services. The items so
designated shall constitute the United States Munitions List.” Id. § 2778(a)(1).
3
The President, by executive order, has delegated to the U.S. Department of
State the authority to regulate under the AECA and to designate defense
“articles” and “services” for inclusion on the United States Munitions List
(“USML”). See Exec. Order No. 13,637, § 1(n)(i), 78 Fed. Reg. 16,129 (Mar. 8, 2013).
The State Department’s Directorate of Defense Trade Controls has accordingly
promulgated regulations known as the International Traffic in Arms Regulations
(“ITAR”). See 22 C.F.R. pts. 120-130 (2019). The ITAR make it unlawful to, inter
alia, “export or attempt to export from the United States any defense article or
technical data or to furnish or attempt to furnish any defense service for which a
license or written approval is required” without such a license. Id. § 127.1(a)(1).
The ITAR’s definition of “export” includes the “actual shipment or
transmission out of the United States, including the sending or taking of a
defense article out of the United States in any manner.” Id. § 120.17(a)(1). The
ITAR also provide that a “deemed export,” defined as “[r]eleasing or otherwise
transferring technical data to a foreign person in the United States,” constitutes
an “export.” Id. § 120.17(a)(2).
The ITAR also include, at 22 C.F.R. § 121.1, the USML, which enumerates
the “articles, services, and related technical data [that] are designated as defense
4
articles or defense services” for purposes of the AECA and ITAR. Id. § 121.1(a).
The USML organizes the designated items into twenty-one categories,
encompassing various forms of weaponry, ammunition, explosives, military-type
equipment and vessels, toxicological agents, classified data, and more. Each of
the twenty-one categories includes as a designated item “[t]echnical data” and
“defense services” that are “directly related to the defense articles” listed in that
category. See, e.g., id. §§ 121.1(I)(i), (II)(k), (III)(e), (IV)(i), (V)(j), (VI)(g), (VII)(h).
The ITAR define “technical data” to include “[i]nformation . . . required for the
design, development, production, manufacture, assembly, operation, repair,
testing, maintenance or modification of defense articles.” Id. § 120.10(a)(1).
II. Factual Background
On June 3, 2016, Smith arrived at John F. Kennedy International Airport
(“JFK Airport”) with a ticket for an Air Berlin flight from New York to Istanbul,
Turkey. Smith was selected for a pre-boarding inspection and interview with
Customs and Border Protection (“CBP”) officers. In the interview, Smith
voluntarily informed CBP officers that his checked suitcase contained gun parts.
CBP officers retrieved Smith’s suitcase from the airplane, searched it, and
discovered a hard-shell case containing fourteen Glock handgun upper receivers
5
(or “slides”), barrels, and recoil springs, and three Glock extractor depressors.
CBP officers informed Smith that he could not transport handgun parts out
of the United States without an export license, which Smith confirmed that he did
not have. Smith stated that he planned to have the gun parts engraved by
Turkish craftspeople upon his arrival, and then to sell the engraved parts in
Turkey. CBP officers seized the gun parts but permitted Smith to board the flight
to Istanbul. Smith subsequently corresponded with CBP officials by phone and
email. During those conversations, he requested the return of the gun parts and
inquired about the process for obtaining an export license. In a July 14, 2016,
letter to Smith, CBP stated that the gun parts had been seized due to Smith’s
violation of 22 U.S.C. § 2778 (the AECA) and 22 C.F.R. §§ 127.1,1 127.2,2 and
1
As described above, § 127.1 provides that it is unlawful to, inter alia, “export or
attempt to export” or “import or attempt to import” “any defense article or
technical data . . . for which a license or written approval is required” without
“first obtaining the required license or other written approval.”
2
Section 127.2 provides that it is unlawful to “use or attempt to use” export or
import documentation that contains a false statement or a misrepresentation or
omission of a material fact. Because Smith admitted that he did not have an
export license, it is not clear how this provision is relevant to his conduct. The
provision was not cited in Smith’s eventual indictment or the subsequent
criminal proceedings.
6
123.22(b).3
On July 23, 2016, Smith traveled by train from New York to Cleveland,
Ohio. In Cleveland, he boarded a flight to JFK Airport, where he planned to
connect to a flight to Amsterdam, and from there to fly to Istanbul. During his
layover at JFK Airport, CBP officers subjected Smith’s checked suitcase to a sniff
test by a CBP canine trained to detect guns. When the dog alerted to the presence
of guns, officers searched Smith’s bag and again found gun parts: twenty Glock
upper receivers, barrels, and recoil springs, five Lone Wolf slides and barrels,
and one Beretta PX4 pistol barrel. CBP officers seized the gun parts and
questioned Smith, who stated that he was under the impression that the export
license requirement applied only to international travel that originated in New
York. Smith was permitted to board his connecting flight to Amsterdam, without
the gun parts.
Federal agents arrested Smith on January 24, 2017. On April 21, 2017, a
grand jury in the Eastern District of New York indicted him for the attempted
export of firearms components designated as defense articles on the USML. The
3
Section 123.22(b) sets forth requirements for the electronic filing of “export
information” in connection with exports pursuant to a license or exemption.
7
Indictment identified the gun parts that Smith had attempted to export as items
listed in Category I of the USML, with the upper receivers and barrels designated
under subsection (g) of that category and the recoil springs designated under
subsection (h).4
In a post-arrest interview and in proceedings before the district court,
Smith explained that he had acted on the advice of a friend. According to Smith,
the friend had purchased the gun parts on the internet and had convinced Smith
to transport them to Turkey on the promise that they would split the proceeds
from their eventual sale. Smith also claimed that the same friend had advised
him, erroneously, that Smith could circumvent the export licensing requirement
if his international trip originated outside of New York. Smith stated that at the
time of his attempts to transport gun parts to Turkey, his judgment had been
negatively affected by his habitual cocaine use, and that he had since sought
4
Category I of the USML is titled “Firearms, Close Assault Weapons and Combat
Shotguns.” See 22 C.F.R. § 121.1(I). The subsections of Category I enumerate items
designated as “defense articles” under this category. Subsection (g) lists
“[b]arrels, cylinders, receivers (frames) or complete breech mechanisms” for
nonautomatic, semi-automatic, and fully automatic firearms to caliber .50
inclusive; firearms and other weapons with special military application; and
combat shotguns. Id. Subsection (h) lists “[c]omponents, parts, accessories and
attachments” for such weapons. Id.
8
treatment for his drug habit and maintained an extended period of sobriety.
On September 25, 2017, Smith moved to dismiss the indictment, arguing
(as relevant here) that the AECA was facially overbroad because it restricted
constitutionally protected speech. On October 6, 2017, Smith entered a guilty plea
on the understanding that the district court would rule on Smith’s pending
motion to dismiss prior to accepting the plea. The district court denied the
motion to dismiss on December 13, 2017. In disposing of Smith’s First
Amendment overbreadth claim, the court stated that the AECA “at most,
infringes on free speech at its margins, relative to the ‘[statute’s] plainly
legitimate sweep.’” App’x at 96 (quoting United States v. Williams, 553 U.S. 285,
292 (2008)).
At a sentencing hearing on July 9, 2018, the district court accepted as
credible Smith’s claims that he had acted on a friend’s advice and had been
affected by cocaine addiction. Smith reiterated to the district court that he had
planned to have the gun parts engraved by Turkish craftspeople in accordance
with a Turkish tradition of engraving firearms.5 The district court found that the
5
Smith has at different times stated that he had planned either to sell the
engraved parts in Turkey or to transport them back to the United States for sale
here.
9
engraving explanation was not credible, given that the parts Smith attempted to
export were internal gun components that would not be visible if they were used
in assembled handguns.
The district court sentenced Smith to 2 months in prison and 6 months of
supervised release, a sentence well below the advisory Sentencing Guidelines
range of 51 to 63 months in prison.6 On appeal, Smith argues that the district
court erroneously denied his motion to dismiss the indictment. Smith has
completed his term of imprisonment and his term of supervised release.
DISCUSSION
Smith argues that the AECA and ITAR are overbroad, in violation of the
First Amendment, because they restrict substantial amounts of protected speech.
He also contends that the AECA and ITAR violate the First Amendment because
they operate as a prior restraint on speech and because they amount to a content-
based restriction of speech. For the reasons explained below, we find that the
6
The district court had delayed Smith’s sentencing, at Smith’s request, pending
the Supreme Court’s decision in Class v. United States, 138 S. Ct. 798 (2018). In
Class, decided on February 21, 2018, the Supreme Court held that a criminal
defendant who enters a guilty plea may appeal his conviction on the ground that
the statute of conviction is unconstitutional. Id. at 803. Under the rule articulated
in Class, Smith has the right to bring this appeal, notwithstanding his guilty plea.
10
AECA and ITAR are constitutional as applied to Smith, that Smith lacks standing
to bring a facial overbreadth challenge, and that Smith’s other facial First
Amendment challenges are without merit.
I. The AECA and ITAR Are Constitutional as Applied to Smith.
Smith was convicted of attempting to export, without a license, firearm
components that are designated as “defense articles” under the USML, Category
I, subsections (g) and (h). See 22 C.F.R. §§ 121.1(I)(g), (h). In attempting to export
defense articles for which a license is required, Smith engaged in conduct that the
ITAR make unlawful. See id. § 127.1(a)(1). The criminal prohibition articulated in
that regulatory provision implements the AECA’s requirement that defense
articles not be exported or imported without a license. See 22 U.S.C. § 2778(b)(2).
Even assuming, arguendo, that some provisions of the AECA and ITAR
may be applied in a manner that regulates or restricts speech, neither Smith’s
conduct, nor the provisions that criminalize it, involve speech or expression. In
attempting to fly from the United States to Turkey with gun parts in his checked
luggage, Smith attempted an “export” that, if successful, would have entailed the
“actual . . . transmission out of the United States” of physical objects. See 22 C.F.R.
§ 120.17(a)(1). Smith was not engaging in speech, nor can his actions be
11
reasonably construed as “symbolic speech” or “expressive conduct.” See Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 567 (1991). Moreover, the specific statutory and
regulatory provisions that collectively render Smith’s conduct criminal — the
proscription of unlicensed exports (and attempted exports) and authorization of
criminal penalties in 22 U.S.C. §§ 2778(b)(2), (c), and 22 C.F.R. § 127.1(a)(1); the
definition of “export” in 22 C.F.R. § 120.17(a)(1); and the designation of handgun
barrels, receivers, and “[c]omponents, parts, accessories and attachments” as
“defense articles” in 22 C.F.R. §§ 121.1(I)(g),(h) — do not purport to regulate
anything constituting or even resembling expressive conduct. The aspects of the
AECA and ITAR that are relevant to Smith’s conduct do not implicate the First
Amendment at all.
Smith’s opening brief acknowledges that the AECA and ITAR
“legitimately regulate[] the export of weaponry.” Appellant’s Br. at 11. He does
not claim that his attempt to transport gun parts to Turkey in his checked
luggage was expressive in its nature or purpose. By bringing only a facial
challenge that takes issue with aspects of the regulations that are unrelated to his
indictment and conviction, Smith effectively concedes that the prohibition of his
own conduct alone presents no First Amendment issue.
12
II. Smith Lacks Standing to Raise His Facial Overbreadth Challenge to
the AECA and ITAR.
Smith contends that the AECA and ITAR are overbroad, in violation of the
First Amendment, because they restrict a substantial amount of protected speech.
His challenge focuses on the designation of “technical data” as “defense articles”
under the USML, entailing that such “technical data” may not be imported or
exported without a license. See 22 C.F.R. § 121.1. While Smith characterizes his
claim as a challenge to the entire statutory and regulatory scheme, the substance
of his argument is specific to two regulatory provisions: the definition of
“technical data” in 22 C.F.R. § 120.10 and the definition of “export” in 22 C.F.R.
§ 120.17(a)(2) insofar as it includes a “deemed export” of “technical data.” He
argues that by defining the terms “technical data” and “export” too broadly, the
ITAR restrict the transmission of a broad swath of information and thereby
impinge upon protected speech. The record makes clear, however, that Smith
was charged with, pled guilty to, and was convicted of the attempted export of
“upper receivers and barrels . . . as described in Category I(g) of the USML” and
“recoil springs . . . as described in Category I(h) of the USML.” App’x at 11. Smith
does not specifically challenge any portion of the AECA or ITAR that regulates
13
the import and export of tangible “defense articles” (such as those identified in
the Indictment), as opposed to “technical data.” He does not challenge any
specific provision of the statute, and he challenges only portions of the
regulations that are wholly unrelated to the proscription of his conduct.7
“Overbreadth challenges are a form of First Amendment challenge and an
exception to the general rule against third-party standing.” Farrell v. Burke, 449
F.3d 470, 498 (2d Cir. 2006). A party that challenges a statute as overbroad claims
that the statute “would violate the First Amendment rights of hypothetical third
parties if applied to them.” Id. Thus, “[a]ll overbreadth challenges are facial
challenges, because an overbreadth challenge by its nature assumes that the
measure is constitutional as applied to the party before the court.” Id.
Under the overbreadth doctrine, “the prudential limitations against third
party standing are relaxed, and the litigant may assert the rights of individuals
7
The regulatory provision that defines “export,” 22 C.F.R. § 120.17, is relevant to
the proscription of Smith’s conduct insofar as it defines an “export” as “[a]n
actual shipment or transmission out of the United States” in subsection (a)(1).
Smith, however, challenges not that aspect of the definition, but rather an
alternate meaning of “export” set forth in subsection (a)(2): “[r]eleasing or
otherwise transferring technical data to a foreign person in the United States (a
‘deemed export’).” That alternate definition in subsection (a)(2) is unrelated to
the proscription of Smith’s conduct, as is 22 C.F.R. § 120.10, the regulatory
provision that defines “technical data.”
14
whose interests might be affected by the statute but who are not before the
court.” Lerman v. Bd. of Elections in City of New York, 232 F.3d 135, 144 (2d Cir.
2000). Even so, the reviewing court must consider “whether the third party has
sufficient injury-in-fact to satisfy the Art[icle] III case-or-controversy
requirement.” Sec’y of State of Md. v. Joseph H. Munson, Co., 467 U.S. 947, 956
(1984). The overbreadth doctrine “speaks to whose interests a plaintiff suffering
Article III injury may represent” but “does not provide a reason to find such
injury where none is present or imminently threatened in the first instance.”
Hedges v. Obama, 724 F.3d 170, 204 (2d Cir. 2013).
Accordingly, Smith may challenge the AECA and ITAR as
unconstitutionally overbroad only if he can establish Article III standing. Three
elements comprise the “‘irreducible constitutional minimum’ of standing”: “the
individual initiating the suit ‘must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.’” Dhinsa v. Krueger, 917 F.3d 70,
77 (2d Cir. 2019) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). An
injury-in-fact must be “concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (internal quotation marks
15
omitted).
In Smith’s case, there is a fundamental misalignment between his alleged
injury and his legal claim. Assuming without deciding that his conviction and
sentence represent an adequate injury-in-fact to satisfy the first element of
constitutional standing, he fails to establish the other two required elements.
Smith’s conviction and sentence, which follow from the attempted export of gun
parts without a license, are traceable to the aspects of the ITAR that regulate the
export of handguns and their components, but Smith’s legal claim rests instead
on separate language that bears no direct relationship to his conduct. Because he
challenges the manner in which the AECA and ITAR regulate the transmission of
“technical data,” he must allege an injury-in-fact that is traceable to the
regulation of “technical data”; an injury arising from the regulation of a separate
subject by other provisions of the same statutory and regulatory scheme is not
“fairly traceable” to the challenged provisions.
For similar reasons, he also fails to establish redressability. A favorable
outcome of his challenge would result at most in the invalidation of only the
portion of 22 C.F.R. § 120.10 that defines “technical data” and the portion of the
definition of “export” in 22 C.F.R. § 120.17(a) regarding a “deemed export” of
16
“technical data.” See 22 C.F.R. §§ 120.10(a); 120.17(a)(2). Even if Smith were to
prevail on the merits of his overbreadth challenge, therefore, a favorable decision
would not affect the statutory and regulatory provisions that rendered his
conduct criminal, and thus would not redress his injury. A successful
overbreadth challenge would leave Smith’s conviction and sentence undisturbed.
The overbreadth doctrine’s recognition of prudential third-party standing
does not compel a less rigorous analysis of constitutional standing. A litigant
who challenges a rule of law as overbroad may have constitutional standing even
though the rule’s application to her is constitutional, but only insofar as her own
conduct falls within the ambit of the specific rule of law that she challenges.8 In
8
Other circuit courts have similarly made this point. See Serv. Emps. Int’l Union,
Local 5 v. City of Houston, 595 F.3d 588, 598 (5th Cir. 2010) (“[I]f [plaintiff] is
limited by one provision of an ordinance and makes a facial challenge due to the
overbreadth of a different provision, there is no constitutional standing . . . as to
the separate provision.”); Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349-
50 (6th Cir. 2007) (“[I]n an appropriate First Amendment overbreadth claim, a
plaintiff whose conduct is regulated by a rule of law is permitted to challenge the
constitutionality of that particular rule of law regardless of the fact that a more
circumscribed version of that rule of law could be applied in a constitutional
fashion to prohibit the plaintiff’s conduct.” (emphasis added)); CAMP Legal Def.
Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1271 (11th Cir. 2006) (“A plaintiff who
has established constitutional injury under a provision of a statute as applied to
his set of facts may also bring a facial challenge, under the overbreadth doctrine,
to vindicate the rights of others not before the court under that provision.”
(emphasis added)).
17
other words, a person convicted under the AECA and ITAR for exporting (or
attempting to export) “technical data” might have constitutional standing to
assert the overbreadth claim that Smith makes here, even if her own conduct was
not constitutionally protected speech. Smith, however, challenges the breadth of
regulatory language that is entirely distinct from that which makes his own
conduct unlawful.
In an effort to salvage his standing, Smith argues that the provisions of the
ITAR that he challenges are inseverable from both the rest of the ITAR and from
the AECA. A successful overbreadth challenge to those provisions, he argues,
would necessarily result in the invalidation of the entire statutory and regulatory
scheme, thereby nullifying the legal basis for his conviction and redressing his
alleged injury. That is plainly incorrect.
“Whether an unconstitutional provision is severable from the remainder of
the statute in which it appears is largely a question of legislative intent, but the
presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653
(1984). An “invalid part” of a statute or regulation “may be dropped if what is
left is fully operative as a law,” absent evidence that “the Legislature would not
have enacted those provisions which are within its power, independently of that
18
which is not.” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). The remaining
ITAR regulations, including those under which Smith was convicted, would be
“fully operative as a law” if the portions that Smith contends could reach
protected speech were invalidated. As for the preference of the lawmakers, it is
utterly implausible that the State Department, in promulgating the ITAR, would
not have prohibited the import or export of handgun parts, or firearms generally,
or the many other types of weapons and military equipment designated as
“defense articles” in the USML, unless it could also prohibit the transmission of
an array of information defined as “technical data.” It pushes credulity even
further past the breaking point to think that Congress, in delegating to the
Executive the authority to designate “items . . . as defense articles and defense
services,” see 22 U.S.C. § 2778(a)(1), implicitly conditioned its delegation not only
on the inclusion of “technical data” among the designated items, but also on a
sweeping definition of “technical data” that encompassed arguably protected
speech.9 Smith’s attempt to establish standing is therefore unavailing.
9
The AECA uses the term “technical data” in provisions related to the
President’s authority to authorize exemptions for foreign countries from the
otherwise applicable licensing requirements, but does not appear to require that
the implementing regulations define “defense articles” and “defense services” to
include “technical data” for purposes of the USML. See 22 U.S.C. §§ 2778(f)(2)(A),
19
Because Smith cannot establish constitutional standing to assert an
overbreadth challenge to the AECA and ITAR’s regulation of “technical data,”
we find it unnecessary to consider the merits of that claim.10
III. Smith Cannot Establish That the AECA and ITAR Are Otherwise
Facially Unconstitutional.
Smith’s opening brief asserts that the AECA and ITAR violate the First
Amendment because they impose a prior restraint on speech and because they
(f)(2)(B), (j)(4)(A). The AECA defines the terms “defense article” and “defense
service” for purposes of the statute without reference to “technical data.” Id.
§§ 2794(3), (4). The statute that preceded (and was replaced by) the AECA
authorized the President to control “the export and import of arms, ammunition,
and implements of war, including technical data relating thereto,” and “to
designate those articles which shall be considered as arms, ammunition, and
implements of war, including technical data relating thereto.” 22 U.S.C. § 1934(a)
(repealed 1976). Therefore, while the ITAR appear to be consistent with prior and
related practices insofar as they regulate “technical data” relating to “defense
articles,” it does not appear that Congress expressly required the inclusion of
“technical data” among the items that may not be imported or exported without
a license, let alone that such inclusion was a sine qua non of the adoption of the
AECA.
10
Other courts that have considered this question have consistently found that
the statute and regulations challenged by Smith are not overbroad. See United
States v. Chi Mak, 683 F.3d 1126, 1136 (9th Cir. 2012); Stagg P.C. v. U.S. Dep’t of
State, 354 F. Supp. 3d 448, 469-70 (S.D.N.Y. 2019); Bernstein v. U.S. Dep’t of State,
945 F. Supp. 1279, 1294-95 (N.D. Cal. 1996); Karn v. U.S. Dep’t of State, 925 F. Supp.
1, 12-13 (D.D.C. 1996). Because Smith lacks constitutional standing to raise this
claim, however, we express no opinion on the matter.
20
impose content-based restrictions on speech without adequate governmental
justifications. Smith seems to invoke these First Amendment doctrines in support
of his overbreadth claim, arguing that the AECA and ITAR restrict protected
speech, to an extent that renders them overbroad, by imposing a prior restraint
and restricting speech on the basis of content. The government, in its brief,
construes these arguments as separate lines of attack from the overbreadth claim.
Because we understand Smith’s opening brief to assert all of the First
Amendment arguments therein in service of an overbreadth claim, which he
lacks standing to raise, we do not find it necessary to address his other
arguments. Moreover, to the extent that Smith invokes these other doctrines as
distinct grounds for the alleged unconstitutionality of the statutory and
regulatory scheme, the constitutional standing analysis that precludes his
overbreadth claim applies with equal force to his other First Amendment
arguments. Because his arguments challenge only aspects of the statutory and
regulatory scheme that pertain to the transmission of “technical data,” and that
are therefore unrelated to the proscription of his conduct, he does not have
standing to raise them.
21
CONCLUSION
For the reasons stated above, the district court did not err in denying
Smith’s motion to dismiss the indictment. We therefore AFFIRM the judgment of
conviction.
22