A Second Circuit panel has affirmed the sentence of Lynne Stewart, in an opinion posted here.
nationalsecuritylaw United States v. Pratt & Whitney Canada Corp. (D. Conn. June 28, 2012) (guilty plea in illegal military software export case)June 28, 2012
Very interesting case. Press release from DOJ below, plea agreement and other docs attached:
BRIDGEPORT, Conn. – Pratt & Whitney Canada Corp. (PWC), a Canadian subsidiary of the Connecticut-based defense contractor United Technologies Corporation (UTC), today pleaded guilty to violating the Arms Export Control Act and making false statements in connection with its illegal export to China of U.S.-origin military software used in the development of China’s first modern military attack helicopter, the Z-10.
In addition, UTC, its U.S.-based subsidiary Hamilton Sundstrand Corporation (HSC) and PWC have all agreed to pay more than $75 million as part of a global settlement with the Justice Department and State Department in connection with the China arms export violations and for making false and belated disclosures to the U.S. government about these illegal exports. Roughly $20.7 million of this sum is to be paid to the Justice Department. The remaining $55 million is payable to the State Department as part of a separate consent agreement to resolve outstanding export issues, including those related to the Z-10. Up to $20 million of this penalty can be suspended if applied by UTC to remedial compliance measures. As part of the settlement, the companies admitted conduct set forth in a stipulated and publicly filed statement of facts.
Today’s actions were announced by David B. Fein, U.S. Attorney for the District of Connecticut; Lisa Monaco, Assistant Attorney General for National Security; John Morton, Director of U.S. Immigration and Customs Enforcement (ICE); Ed Bradley, Special Agent in Charge of the Northeast Field Office of the Defense Criminal Investigative Service (DCIS); Kimberly K. Mertz, Special Agent in Charge of the FBI New Haven Division; David Mills, Department of Commerce Assistant Secretary for Export Enforcement; and Andrew J. Shapiro, Assistant Secretary of State for Political-Military Affairs.
Today in the District of Connecticut, the Justice Department filed a three-count criminal information charging UTC, PWC and HSC. Count One charges PWC with violating the Arms Export Control Act in connection with the illegal export of defense articles to China for the Z-10 helicopter. Count Two charges PWC, UTC and HSC with making false statements to the U.S. government in their belated disclosures relating to the illegal exports. Count Three charges PWC and HSC with failure to timely inform the U.S. government of exports of defense articles to China.
While PWC has pleaded guilty to Counts One and Two, the Justice Department has recommended that prosecution of UTC and HSC on Count Two, and PWC and HSC on Count Three be deferred for two years, provided the companies abide by the terms of a deferred prosecution agreement with the Justice Department. As part of the agreement, the companies must pay $75 million and retain an Independent Monitor to monitor and assess their compliance with export laws for the next two years.
The Export Scheme
Since 1989, the United States has imposed a prohibition upon the export to China of all U.S. defense articles and associated technical data as a result of the conduct in June 1989 at Tiananmen Square by the military of the People’s Republic of China. In February 1990, the U.S. Congress imposed a prohibition upon licenses or approvals for the export of defense articles to the People’s Republic of China. In codifying the embargo, Congress specifically named helicopters for inclusion in the ban.
Dating back to the 1980s, China sought to develop a military attack helicopter. Beginning in the 1990s, after Congress had imposed the prohibition on exports to China, China sought to develop its attack helicopter under the guise of a civilian medium helicopter program in order to secure Western assistance. The Z-10, developed with assistance from Western suppliers, is China’s first modern military attack helicopter.
During the development phases of China’s Z-10 program, each Z-10 helicopter was powered by engines supplied by PWC. PWC delivered 10 of these development engines to China in 2001 and 2002. Despite the military nature of the Z-10 helicopter, PWC determined on its own that these development engines for the Z-10 did not constitute “defense articles,” requiring a U.S. export license, because they were identical to those engines PWC was already supplying China for a commercial helicopter.
Because the Electronic Engine Control software, made by HSC in the United States to test and operate the PWC engines, was modified for a military helicopter application, it was a defense article and required a U.S. export license. Still, PWC knowingly and willfully caused this software to be exported to China for the Z-10 without any U.S. export license. In 2002 and 2003, PWC caused six versions of the military software to be illegally exported from HSC in the United States to PWC in Canada, and then to China, where it was used in the PWC engines for the Z-10.
According to court documents, PWC knew from the start of the Z-10 project in 2000 that the Chinese were developing an attack helicopter and that supplying it with U.S.-origin components would be illegal. When the Chinese claimed that a civil version of the helicopter would be developed in parallel, PWC marketing personnel expressed skepticism internally about the “sudden appearance” of the civil program, the timing of which they questioned as “real or imagined.” PWC nevertheless saw an opening for PWC “to insist on exclusivity in [the] civil version of this helicopter,” and stated that the Chinese would “no longer make reference to the military program.” PWC failed to notify UTC or HSC about the attack helicopter until years later and purposely turned a blind eye to the helicopter’s military application.
HSC in the United States had believed it was providing its software to PWC for a civilian helicopter in China, based on claims from PWC. By early 2004, HSC learned there might an export problem and stopped working on the Z-10 project. UTC also began to ask PWC about the exports to China for the Z-10. Regardless, PWC on its own modified the software and continued to export it to China through June 2005.
According to court documents, PWC’s illegal conduct was driven by profit. PWC anticipated that its work on the Z-10 military attack helicopter in China would open the door to a far more lucrative civilian helicopter market in China, which according to PWC estimates, was potentially worth as much as $2 billion to PWC.
Belated and False Disclosures to U.S. Government
These companies failed to disclose to the U.S. government the illegal exports to China for several years and only did so after an investor group queried UTC in early 2006 about whether PWC’s role in China’s Z-10 attack helicopter might violate U.S. laws. The companies then made an initial disclosure to the State Department in July 2006, with follow-up submissions in August and September 2006.
The 2006 disclosures contained numerous false statements. Among other things, the companies falsely asserted that they were unaware until 2003 or 2004 that the Z-10 program involved a military helicopter. In fact, by the time of the disclosures, all three companies were aware that PWC officials knew at the project’s inception in 2000 that the Z-10 program involved an attack helicopter.
Today, the Z-10 helicopter is in production and initial batches were delivered to the People’s Liberation Army of China in 2009 and 2010. The primary mission of the Z-10 is anti-armor and battlefield interdiction. Weapons of the Z-10 have included 30 mm cannons, anti-tank guided missiles, air-to-air missiles and unguided rockets.
“PWC exported controlled U.S. technology to China, knowing it would be used in the development of a military attack helicopter in violation of the U.S. arms embargo with China,” said U.S. Attorney Fein. “PWC took what it described internally as a ‘calculated risk,’ because it wanted to become the exclusive supplier for a civil helicopter market in China with projected revenues of up to two billion dollars. Several years after the violations were known, UTC, HSC and PWC disclosed the violations to the government and made false statements in doing so. The guilty pleas by PWC and the agreement reached with all three companies should send a clear message that any corporation that willfully sends export controlled material to an embargoed nation will be prosecuted and punished, as will those who know about it and fail to make a timely and truthful disclosure.”
“Due in part to the efforts of these companies, China was able to develop its first modern military attack helicopter with restricted U.S. defense technology. As today’s case demonstrates, the Justice Department will spare no effort to hold accountable those who compromise U.S. national security for the sake of profits and then lie about it to the government,” said Assistant Attorney General Monaco. “I thank the agents, analysts and prosecutors who helped bring about this important case.”
“This case is a clear example of how the illegal export of sensitive technology reduces the advantages our military currently possesses,” said ICE Director Morton. “I am hopeful that the conviction of Pratt & Whitney Canada and the substantial penalty levied against United Technologies and its subsidiaries will deter other companies from considering similarly ill-conceived business practices in the future. American military prowess depends on lawful, controlled exports of sensitive technology by U.S. industries and their subsidiaries, which is why ICE will continue its present campaign to aggressively investigate and prosecute criminal violations of U.S. export laws relating to national security.”
“Today’s charges and settlement demonstrate the continued commitment of the Defense Criminal Investigative Service (DCIS) and fellow agencies to protect sensitive U.S. defense technology from being illegally exported,” said DCIS Special Agent in Charge Bradley. “Safeguarding our military technology is vital to our nation’s defense and the protection of our war fighters both home and abroad. We know that foreign governments are actively seeking U.S. defense technology for their own development. Thwarting these efforts is a top priority for DCIS. I applaud the agents and prosecutors who worked tirelessly to bring about this result.”
“Preventing the loss of critical U.S. information and technologies is one of the most important investigative priorities of the FBI,” said FBI Special Agent in Charge Mertz. “Our adversaries routinely target sensitive research and development data and intellectual property from universities, government agencies, manufacturers, and defense contractors. While the thefts associated with economic espionage and illegal technology transfers may not capture the same level of attention as a terrorist incident, the costs to the U.S. economy and our national security are substantial. Violations of the Arms Export Control Act put our nation at risk and the FBI, along with all of our federal agency partners, are committed to ensuring that embargoed technologies do not fall into the wrong hands. Those who violate these laws should expect to be held accountable. An important part of the FBI’s strategy in this area involves the development of strategic partnerships. In that regard, the FBI looks forward to future coordination with UTC and its subsidiaries to strengthen information sharing and counterintelligence awareness.”
“Protecting national security is our top priority,” said Assistant Secretary of Commerce for Export Enforcement Mills. “Today’s action sends a clear signal that federal law enforcement agencies will work together diligently to prevent U.S. technology from falling into the wrong hands.”
Assistant Secretary Shapiro, of the State Department’s Bureau of Political and Military Affairs, said, “Today’s $75 million settlement with United Technologies Corporation sends a clear message: willful violators of U.S. arms export control regulations will be pursued and punished. The successful resolution of this case is the byproduct of the tireless work of our compliance officers and highlights the relentless commitment of the State Department to protect sensitive American technologies from being illegally transferred.”
U.S. Attorney Fein commended the many agencies involved in this investigation, including ICE’s Homeland Security Investigations (HSI) in New Haven; the DCIS in New Haven; the New Haven Division of the FBI; the Department of Commerce’s Boston Office of Export Enforcement. He also praised the Office of the HSI Attaché in Toronto, which was essential to the initiation and investigation of this matter, and the State Department’s Office of Defense Trade Controls Compliance in the Bureau of Political-Military Affairs, for its critical role in the global resolution of this matter.
The prosecution is being handled by Assistant U.S. Attorneys Stephen B. Reynolds and Michael J. Gustafson from the U.S. Attorney’s Office for the District of Connecticut, with assistance from Steven Pelak and Ryan Fayhee of the Counterespionage Section of the Justice Department’s National Security Division.
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From DOJ’s press release:
AMARILLO, Texas – Khalid Ali-M Aldawsari, 22, a citizen of Saudi Arabia and resident of Lubbock, Texas, was convicted by a federal jury today on an indictment charging one count of attempted use of a weapon of mass destruction in connection with his purchase of chemicals and equipment necessary to make an improvised explosive device (IED) and his research of potential U.S. targets, including persons and infrastructure.
The verdict, which was reached in the Northern District of Texas, was announced by Sarah R. Saldaña, U.S. Attorney for the Northern District of Texas; Lisa Monaco, Assistant Attorney General for National Security; and Diego G. Rodriguez, Special Agent in Charge of the FBI Dallas Field Division.
Sentencing has been scheduled for October 9, 2012, in Amarillo. Aldawsari, who was lawfully admitted into the United States in 2008 on a student visa and was enrolled at South Plains College near Lubbock, faces a maximum sentence of life in prison and a $250,000 fine. He was arrested on Feb. 23, 2011 on a criminal complaint and later charged in a March 9, 2011 federal indictment with attempting to use a weapon of mass destruction.
According to court documents and evidence presented during trial, at the time of his arrest last year, Aldawsari had been researching online how to construct an IED using several chemicals as ingredients. He had also acquired or taken a substantial step toward acquiring most of the ingredients and equipment necessary to construct an IED and he had conducted online research of several potential U.S. targets, the affidavit alleges. In addition, he had allegedly described his desire for violent jihad and martyrdomin blog postings and a personal journal.
“While many people are responsible for thwarting Aldawsari’s threat and bringing him to justice, we owe a debt of gratitude to all the members of the North Texas Joint Terrorism Task Force, and especially to the hundreds of hard-working and dedicated FBI agents, analysts, linguists and others,” said U.S. Attorney Saldaña. “Their efforts, coupled with the hard work and excellent cooperation from the Lubbock Police Department and the Texas Tech Police Department, are the reason we were able to stop this defendant from carrying out a catastrophic act of terrorism.”
“As this trial demonstrated, Aldawsari purchased ingredients to construct an explosive device and was actively researching potential targets in the United States. Thanks to the efforts of many agents, analysts and prosecutors, this plot was thwarted before it could advance further,” said Assistant Attorney General Monaco. “This case serves as another reminder of the need for continued vigilance both at home and abroad.”
“Today’s guilty verdict shows how individuals in the United States with the intent to do harm can acquire the knowledge and materials necessary to carry out an attack,” said SAC Rodriguez. “Our success in locating and preventing Mr. Aldawsari from carrying out an attack is a result of cooperation within the law enforcement and intelligence communities, particularly, the North Texas Joint Terrorism Task Force, the Texas Tech Police Department, the Lubbock Police Department, and the Lubbock County Sheriff’s Office, but also a demonstration of information sharing across FBI divisions, as well as assistance from the community. I want to thank the dedicated agents, officers and analysts, the computer forensics team and linguists that worked diligently on this investigation as well as prosecutors serving in the U.S. Attorney’s Office in the Northern District.”
The government presented evidence that on Feb. 1, 2011, a chemical supplier reported to the FBI a suspicious attempted purchase of concentrated phenol by a man identifying himself as Khalid Aldawsari. Phenol is a toxic chemical with legitimate uses, but can also be used to make the explosive trinitrophenol, also known as T.N.P., or picric acid. Ingredients typically used with phenol to make picric acid, or T.N.P., are concentrated sulfuric and nitric acids.
Aldawsari attempted to have the phenol order shipped to a freight company so it could be held for him there, but the freight company told Aldawsari that the order had been returned to the supplier and called the police. Later, Aldawsari falsely told the supplier he was associated with a university and wanted the phenol for “off-campus, personal research.” Frustrated by questions being asked over his phenol order, Aldawsari cancelled his order, placed an order with another company, and later emailed himself instructions for producing phenol. In December 2010, he had successfully purchased concentrated nitric and sulfuric acids.
Aldawsari used various email accounts in researching explosives and targets, and often sent emails to himself as part of this process. He emailed himself a recipe for picric acid, which was described in the email as a “military explosive” and also emailed himself instructions on how to convert a cell phone into a remote detonator and how to prepare a booby-trapped vehicle using household items. Aldawsari also purchased many other items, including a Hazmat suit, a soldering iron kit, glass beakers and flasks, a stun gun, clocks and a battery tester.
Excerpts from a journal found at Aldawsari’s residence indicated that he had been planning to commit a terrorist attack in the United States for years. One entry describes how Aldawsari sought and obtained a particular scholarship because it allowed him to come directly to the United States and helped him financially, which he said “will help tremendously in providing me with the support I need for Jihad.” The entry continues: “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for Jihad.”
In another entry, Aldawsari wrote that he was near to reaching his goal and near to getting weapons to use against infidels and their helpers. He also listed a “synopsis of important steps” that included obtaining a forged U.S. birth certificate; renting a car; using different driver’s licenses for each car rented; putting bombs in cars and taking them to different places during rush hour; and leaving the city for a safe place.
Aldawsari conducted research on various targets and e-mailed himself information on these locations and people. One of the documents he sent himself, with the subject line listed as “Targets,” contained the names and home addresses of three American citizens who had previously served in the U.S. military and had been stationed for a time at Abu Ghraib prison in Iraq. In others, Aldawsari sent himself the names of 12 reservoir dams in Colorado and California and listed two categories of targets: hydroelectric dams and nuclear power plants. He also sent himself an email titled “Tyrant’s House,” in which he listed the Dallas address for former President George W. Bush. Aldawsari also conducted research that indicated he considered using infant dolls to conceal explosives and the possible targeting of a nightclub with an explosive concealed in a backpack.
This case was investigated by the FBI’s Dallas Joint Terrorism Task Force, with assistance from the Lubbock Police Department and the Texas Tech Police Department. The prosecution is being handled by Assistant U.S. Attorneys Jeffrey R. Haag, Denise Williams, James T. Jacks and Matthew J. Kacsmaryk and Trial Attorney David Cora from the Counterterrorism Section of the Justice Department’s National Security Division.
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A Ninth Circuit panel has rejected a constitutional challenge to the Arms Export Control Act (as implemented in the International Traffic in Arms Regulations (ITAR)), as well as other arguments relating to the trial. The full opinion follows below:
United States Court of Appeals,
UNITED STATES of America, Plaintiff–Appellee,
CHI MAK, aka Seal A; Jack Mak; Taichi Mak; Daichi Mak; Dazhi Mai, Defendant–Appellant.
Argued and Submitted April 12, 2012.
Filed June 21, 2012.
M. SMITH, Circuit Judge:
Chi Mak (Mak) appeals his jury conviction of conspiring to violate export control laws and attempting to export a defense article to the People’s Republic of China, in violation of the Arms Export Control Act (AECA), 22 U.S.C. § 2778, as implemented by the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120–30. Following his conviction, Mak moved for a new trial, challenging the Government’s failure to timely disclose its intended use of a particular expert witness, and claiming that the AECA is unconstitutionally vague. The district court denied Mak’s motion. Mak now appeals his conviction, claiming violations of his rights under the First, Fifth, and Sixth Amendments, and the Ex Post Facto Clause.
We affirm the district court because: (1) the AECA and its implementing regulations do not violate Mak’s First Amendment rights since the AECA is substantially related to the protection of an important governmental interest; (2) the court’s instructions to the jury concerning technical data did not violate Mak’s Due Process rights because they expressly required the Government to prove that the documents at issue are not in the public domain; (3) the court’s instructions to the jury on willfulness did not violate Mak’s Sixth Amendment rights because they did not prevent the jury from fully deliberating as to whether Mak acted willfully, as required by the AECA; and (4) the documents at issue were covered by the United States Munitions List (USML) at the time Mak attempted to export them and, therefore, his conviction does not violate the Ex Post Facto Clause.
The AECA regulates the export and import of “defense articles” and “defense services” out of and into the United States. 22 U.S.C. § 2778. Section 2778(a) of the AECA authorizes the President: (1) to designate those defense articles and services to be included on the USML; (2) to require licenses for the export of items on the USML; and (3) to promulgate regulations for the import and export of such items on the USML. Id. The Directorate of Defense Trade Controls (DDTC), within the United States Department of State, promulgates regulations under the AECA, known as ITAR. 22 C.F.R. § 120–30. ITAR defines the USML, which consists of twenty-one categories of designated defense articles and services that are subject to licensing controls under the AECA. Id. at § 121.1. Unless an exception applies, ITAR requires a license for the export of USML articles and related technical data. 22 C.F.R. §§ 123–125.
ITAR defines “technical data” as “[i]nformation … which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles.”22 C.F.R. § 120.10(a)(1). This definition excludes any information in the “public domain,” which is defined as follows:
Public domain means information which is published and which is generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency (see also § 125.4(b)(13) of this subchapter);
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
Id. at § 120.10(a)(5); Id. at § 120.11(a).
The AECA provides that the State Department’s designation of items as defense articles “shall not be subject to judicial review.”22 U.S.C. § 2778(h). After an item is designated on the USML, the AECA and ITAR require any person wishing to export that item to apply for a license. 22 C.F.R. § 120.4 (requiring that license “[r]equests shall identify the article or service, and include a history of this product’s design, development, and use”). The denial of a license may be appealed administratively. 22 C.F.R. § 120.4(e)–(g). Thus, the elements of an export control violation under 22 U.S.C. § 2778 are as follows: the (1) willful (2) export or attempted export (3) of articles listed on the USML (4) without a license. Kuhali v. Reno, 266 F.3d 93, 104 (2d Cir.2001).
FACTUAL AND PROCEDURAL BACKGROUND
Mak was a senior engineer for Power Paragon, Inc. (Paragon), a defense contractor in Anaheim, California, that designs and manufactures electrical systems for U.S. Navy combat ships and submarines. On October 28, 2005, Tai Mak, Mak’s brother, and his sister-in-law, Fuk Li, were arrested at the Los Angeles International Airport prior to boarding a flight to Hong Kong. When they were arrested, the Government seized a CD from their luggage. In addition to several innocuous files, the CD contained three encrypted files Mak had given to his brother containing export-controlled naval technology, including documents authored by Mak regarding the Quiet Electric Drive project (QED document), a project intended to decrease the signature noise data emitted by U.S. Navy submarines and warships—a submarine’s greatest vulnerability. The Government also discovered a second document authored by Mak, discussing solid-state power switches (Solid State document).
Both the QED document and the Solid State document pertained to technology used on U.S. Navy ships and submarines. These documents fall under Category VI(g) of the USML, which covers “[t]echnical data (as defined in § 120.10) … directly related to the defense articles enumerated in paragraphs (a) though (f) of this category.”22 C.F.R. § 121.1(VI)(g). Paragraph (a) of Category VI lists “[w]arships, amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels and any vessels specifically designed or modified for military purposes.”22 C.F.R. § 121.1(VI)(a).
Shortly after the arrests of Tai Mak and Fuk Li, the Government arrested Mak and his wife, Rebecca Chiu. Following Mak’s arrest, the police conducted a search of his home, where they discovered numerous other documents containing protected military technology. Mak was indicted and ultimately charged with five counts: one count of conspiracy to violate the AECA, two counts of attempting to violate the AECA (for the QED document and the Solid State document, respectively), one count of operating as an agent of a foreign government in the United States, and one count of lying to a federal agent.
Mak’s trial commenced on March 27, 2007. Prior to the trial, the Government filed a motion in limine seeking to preclude Mak from challenging the Secretary of State’s determination that the charged documents constituted “technical data” on the ground that 22 U.S.C. § 2278(h) expressly prohibits judicial review. In response, Mak conceded that the DDTC’s determination was not reviewable. He argued, instead, that the status of the documents as technical data, and whether they fall within the public domain exception, was also critical to the issue of his willfulness—that is, whether he knowingly or intentionally violated a known legal duty not to export the documents. The trial court did not rule on the Government’s motion, but both parties proceeded to trial based on the distinction between the Secretary’s determination and Mak’s subjective belief regarding the status of the documents.
At the close of trial, the jury was instructed as follows in the Court’s Instruction 15:
All technical data is subject to export control. Technical data is information required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles. Technical data does not include information in the public domain.
You are instructed that the information in the Solid State document and the Q.E.D. document is required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles. You must accept this fact as true, regardless of whether you heard any witness testify to the contrary.
The Court’s Instruction 16 reads as follows: “[t]he government bears the burden of proving beyond a reasonable doubt that the information contained in the Q.E.D. document and the Solid State document was not in the public domain.”
Regarding count two for the Solid State document, the Court’s Instruction 19 directed:
As mentioned, the Solid–State Document is information necessary for the design, development, production, manufacture, assembly, operation, testing or modification of defense articles. However, the Solid–State Document is not “technical data” if all the information contained in the document was in the public domain. The government must prove beyond a reasonable doubt that information in the Solid–State Document was not in the public domain.
The Court’s Instruction 22 regarding the QED document was the same as its Instruction 19, except that it substituted the words “QED Document” for “Solid–State Document.”
The Court’s Instruction 18 and Instruction 21 listed the elements of Count 2 (attempted export of the QED Document) and Count 3 (attempted export of the Solid State Document), including the following:
In order for the defendant to be found guilty of this charge, the government must prove each of following elements beyond a reasonable doubt.
First, information contained in the [charged document] is technical data.
Second, the defendant intended to willfully export from the United States the [charged document] without obtaining a license from the Department of State to export the [charged document].
The Court’s Instructions 20 and 23 addressed the specific intent required for a defendant to violate the AECA. They explained that the Government had the burden to prove beyond a reasonable doubt that Mak acted willfully and that “[a]n act is done willfully if done voluntarily and intentionally with the purpose of violating a known legal duty.”Instructions 20 and 23 clarified that the Government was not required to prove that “the defendant had read, was aware of, or had consulted the specific regulations governing his activities,” and that in “making a determination of whether the defendant had the requisite intent, [the jury] should consider the totality of all relevant circumstances.”Mak objected to the district court’s proposed Instructions 20 and 23 and counsel engaged in a long discussion with the court regarding those instructions. Mak did not proffer proposed alternative language, despite the court’s invitation to do so. Before the jury was instructed, the court dismissed count four. On May 7, 2007, the jury found Mak guilty on all of the remaining counts. On March 24, 2008, Mak was sentenced to 293 months in custody, to be followed by three years of supervised release.
After the trial, Mak moved for a new trial on two grounds: (1) the Government’s untimely disclosure of an expert witness violated the disclosure requirements of Federal Rule of Criminal Procedure 16; and (2) the portion of the AECA under which he was convicted was unconstitutionally vague. On January 7, 2008, the district court denied Mak’s motion. Mak timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the constitutionality of a statute as a matter of law de novo. United States v. Sutcliffe, 505 F.3d 944, 953(9th Cir.2007). We review the construction or interpretation of a statute de novo. United States v. Norbury, 492 F.3d 1012, 1014 (9th Cir.2007). However, constitutional issues not originally raised at trial are reviewed for plain error. United States v. Santiago, 46 F.3d 885, 890 (9th Cir.1995). Plain error review involves four prongs: (1) there must be an error, (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute,” (3) the error “must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings,” and (4) if the first three prongs are satisfied, we have the discretion to remedy the error only if it “seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks omitted).
We review de novo whether the district court’s jury instructions misstated or omitted an element of the charged offense and review the district court’s formulation of jury instructions for abuse of discretion. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.2010), cert. denied, 131 S.Ct. 364 (2010). We review de novo whether the jury instructions adequately cover the defense’s theory of the case. United States v. Romm, 455 F.3d 990, 1002 (9th Cir.2006).Federal Rule of Criminal Procedure 30(d) requires a defendant to “inform the court of the specific objection and the grounds for the objection” before the jury retires to deliberate. Fed.R.Crim.P. 30(d). Where a defendant fails to object to the court’s instruction, review is for plain error. Hofus, 598 F.3d at 1175.
Ex post facto challenges are reviewed de novo. United States v.. Canon, 66 F.3d 1073, 1077 (9th Cir.1995). However, an ex post facto claim raised for the first time on appeal is reviewed for plain error. United States v. Baker, 10 F.3d 1374, 1394 (9th Cir.1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000).
I. First Amendment
Before weighing the merits of Mak’s First Amendment claims, we must first address the standard of review for those claims. Nowhere in Mak’s motion for a new trial, nor in his supporting memorandum, does he cite the First Amendment. He challenged only the broader constitutional issue of vagueness before the district court. Accordingly, while the Government had some notice of Mak’s constitutional “vagueness” claims, his First Amendment claims are raised for the first time on appeal. Thus, we review Mak’s First Amendment claims for plain error. Santiago, 46 F.3d at 890.
“(G)eneral regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.” Konigsberg v. State Bar, 366 U.S. 36, 50–51 (1961). To determine whether a restriction is content-based, we must determine “whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’ “ Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 (1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). “The principal inquiry in determining content neutrality … is whether the government has adopted a regulation of speech because of the message it conveys.” Ward, 491 U.S. at 791.
If the Government restricts the dissemination of writing based on content, then the Government’s regulation is subject to strict scrutiny. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U .S. 781, 790 (1988). A restriction that is not content-based and only incidentally restricts expressive activity is subject to intermediate scrutiny. United States v.O’Brien, 391 U.S. 367 (1968).“A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997).
Here, the AECA prohibits export without a license of items on the USML without regard to content or viewpoint; it was intended to authorize the President to control the import and export of defense articles and defense services in “furtherance of world peace and the security and foreign policy of the United States.”22 U.S.C. § 2778(a)(1). Mak’s arguments that the AECA and its implementing regulations are content-based mistakenly focus on the nature of the content incidentally restricted, and not the nature of the statute. Cf. Konigsberg, 366 U.S. at 50–51. The purpose of the AECA does not rest upon disagreement with the message conveyed. See generally Cohen v. California, 403 U.S. 15, 18–19 (1971). ITAR defines the technical data based on its function and not its viewpoint. See22 C.F.R § 120.10(a)(1)(defining technical data as information “required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles”). Accordingly, we find that the AECA and its implementing regulations are content-neutral.
Because the AECA and its implementing regulations are content-neutral, we apply the intermediate scrutiny standard under O’Brien. 391 U.S. 367 (1968). The AECA and its implementing regulations satisfy O’Brien because, together, they substantially advance important governmental interests unrelated to the suppression of expression. 391 U.S. at 376–77;see also Haig v. Agee, 453 U.S. 280, 307 (1981). We have long-recognized the “unquestionable legitimacy” of the Government’s important interest in regulating the international dissemination of military information. United States v. Edler Indus., Inc., 579 F.2d 516, 520, 522 (9th Cir.1978); see also United States v. Posey, 864 F.2d 1487, 1496(9th Cir.1989). The technical data regulations substantially advance that interest, unrelated to the suppression of expression, because they set forth clear procedures for seeking approval for export licenses and policies for limiting USML-designation. See22 C.F.R § 120.10(a)(1), (3)(the determination of designation of articles or services turns on whether an item is “specifically 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”). Moreover, the restrictions do not burden speech more than is necessary to further the Government’s interest. Indeed, ITAR makes a point to specifically exclude numerous categories from designation, such as general scientific, mathematical, or engineering papers. See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2728–29 (2010) (upholding material support statute against First Amendment challenge where the statute provided narrowing definitions to avoid infringing upon First Amendment interests). Accordingly, guided by O’Brien, we hold that the AECA and its implementing regulations withstand intermediate scrutiny because they substantially advance the Government’s important interest in the regulation of international dissemination of arms information. 391 U.S. at 376–77.
We note that we have repeatedly upheld the constitutionality of the AECA, and its predecessor, the Mutual Security Act (MSA), under the First Amendment. See United States v. Posey, 864 F.2d 1487 (9th Cir.1989); United States v. Edler Indus., Inc., 579 F.2d 516, 520 (9th Cir.1978). In Edler, we held,
[T]he federal government undeniably possesses the power to regulate the international arms traffic … As a necessary incident to the power to control arms export, the President is empowered to control the flow of information concerning the production and use of arms. The authority to regulate arms traffic would be of negligible practical value if it encompassed only the exportation of particular military equipment but not the exportation of blueprints specifying the construction of the very same equipment.
Edler, 579 F.2d at 520. We upheld the MSA because it was substantially related to the Government’s strong interest in controlling “the conduct of assisting foreign enterprises to obtain military equipment and related technical expertise.” Id. at 520–21.In Posey, we rejected a First Amendment challenge to the AECA on the grounds that “national security concerns may be more sharply implicated by the export abroad of military data than by domestic disclosure of such data.” 864 F.2d at 1496–97. We held that the Government could restrict the flow of data on the USML, through the AECA, because of its strong, legitimate interest in regulating the export of military information. Id.; see also Edler, 579 F.2d at 520.
Mak contends that the AECA and its implementing regulations violate the First Amendment both as a prior restraint and for being unconstitutionally overbroad. We disagree. We have repeatedly rejected First Amendment challenges to the AECA, its implementing regulations, and its predecessor, the MSA; Edler, 579 F.2d at 520, and Posey, 864 F.2d at 1496, control. As Edler required, the AECA “delineate[s] narrowly the scope of information subject to arms controls.” 579 F.2d at 521. The AECA and ITAR specifically carve out exceptions to the law for the types of information that are subject to the highest levels of First Amendment protection, for example, published scholarly works. 22 C.F.R. § 120.11(a). The AECA also satisfies Edler’s requirement that the defendant “know or have reason to know that [the exported] information is intended for the prohibited use” by requiring the government to prove willfulness. See Edler, 579 F.2d at 521;22 U.S.C. § 2778(c). Accordingly, we hold that under Edler and Posey, the AECA and its implementing regulations satisfy the requirements of First Amendment scrutiny. Posey, 864 F.2d at 1496; Edler, 579 F.2d at 520.
II. Technical Data Jury Instructions
Mak next challenges the jury instructions on “technical data” on the ground that they relieved the Government of its burden of proving that the documents did not fall within the public domain. The Court’s Instructions 15, 16, 19 and 22 pertain to technical data and the public domain. Because Mak objected to the jury instructions on the public domain at trial, we review his challenge de novo. Hofus, 598 F.3d at 1174.
The Court’s Instruction 15 told the jury that “all technical data is subject to export control” and that “[t]echnical data is information required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles.”The Court’s Instructions 15, 19, and 22 emphasized to the jury that “technical data” does not include information in the public domain. The district court’s instructions made clear that the definition of technical data has two parts: it is information which is (1) “required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles;” that (2) does not fall in the public domain. 22 C.F.R. § 120.10(a)(1); 120.10(a)(5). From the court’s instructions, it was clear that information in the public domain cannot constitute “technical data.”
Mak contends that the district court’s instructions on technical data constituted reversible error because the court’s instructions removed from the jury’s consideration whether the QED and Solid State documents were in the public domain. Specifically, Mak contends that because the Court’s Instructions 19 and 22 told the jury that the QED and Solid State documents were information which was “required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles,” the instructions relieved the Government of its burden to prove the documents were not in the public domain. We disagree with Mak’s circuitous logic. The technical data instructions clearly identified the two elements of technical data, and then broke down the Government’s relative burdens concerning each element. The first element was inclusive, describing the different types of information that could qualify as technical data—“Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles.”The second element was exclusive, disqualifying from the designation as technical data any information that fell within the public domain. Because the district court specifically instructed the jury that any information in the public domain cannot be “technical data,” we find that the district court did not err in its jury instructions concerning technical data.
III. Jury Instructions and Deliberations on Willfulness
Every criminal defendant has a constitutional right to a “meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (grounding right to a meaningful defense in the Fifth and Sixth Amendments). An accused can defend against a charge that requires the Government to prove willfulness by presenting evidence that he did not voluntarily or intentionally violate a known legal duty. Cheek v. United States, 498 U.S. 192, 202–03 (1991).
Mak contends that the district court deprived him of full jury deliberations on willfulness on the following three grounds: (1) the district court’s refusal to accept his proposed jury instruction deprived him of his Sixth Amendment right to present a complete defense; (2) the district court’s willfulness instruction deprived Mak of a jury determination as to whether he voluntarily or intentionally violated a known legal duty when he attempted to send the QED and Solid State documents to China; and (3) the district court erred in its failure to instruct the jury on the basic marketing information and general system descriptions exceptions to technical data. We disagree, and we address each of Mak’s arguments in turn.
We review for plain error Mak’s claim that the court’s instructions deprived him of his Sixth Amendment right to a meaningful defense.FN1 Santiago, 46 F.3d at 890. Specifically, Mak contends that the district court erred when it rejected the following proposed jury instruction:
FN1. In the district court, Mak objected to the Court’s Instruction No. 23 only on the ground that it was argumentative. Mak did not object to the instruction on the ground that it limited the jury’s consideration of evidence suggesting that Mak did not believe the documents were technical data. Nor did Mak object to the instruction on Sixth Amendment grounds. Mak’s single “argumentative” objection was insufficient to put the court on notice of his defense theory challenge or his constitutional challenge. Indeed, after the final instruction was presented to Mak, he was even invited by the court to further supplement the instruction if he believed the jury would need further direction on the definition of “violating a known legal duty”—Mak failed to offer any supplemental instruction despite the court’s invitation. Accordingly, we review his claim on appeal for plain error. Hofus, 598 F.3d at 1175;see also United States v. Pineda–Doval, 614 F.3d 1019, 1025 (9th Cir.2010).
Information which is in the public domain does not constitute technical data and therefore is not subject to the export controls of the United States Munitions List. Even if you determine that any of the items at issue in Counts two, three or four were not in the Public Domain, you the jury must consider whether Mr. Chi Mak believed the items were in the Public Domain in order to determine whether he willfully and knowingly exported defense articles.
Although the court must instruct on a defense theory if it has a basis in law and fact, “it is not reversible error to reject a defendant’s proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory.” United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990).
We find that the district court adequately instructed the jury on Mak’s defense theory regarding specific intent. Specifically, in the Court’s Instructions 20 and 23, the court informed the jury that the Government had the burden to prove that Mak had acted “willfully” “with the purpose of violating a known legal duty” in attempting to export the QED and Solid State documents. In the same instructions, the district court emphasized, however, that the Government was not required to prove that “the defendant had read, was aware of, or had consulted the specific regulations governing his activities,” but rather, in its determination of intent, the jury must consider “the totality of the circumstances.” Both instructions directed the jury to deliberate on whether Mak possessed the specific intent to violate the AECA. Because Mak’s theory of the case was already reflected in the entirety of the court’s other instructions, the court was not obligated to accept Mak’s proposed instruction. Mason, 902 F.2d at 1438. Accordingly, we hold that the court’s instruction did not prevent Mak from providing a meaningful defense.
Mak did not raise his claim that the jury instructions removed the issue of willfulness from the jury’s consideration at trial; therefore we also review this challenge for plain error. Hofus, 598 F.3d at 1175. Mak contends that the court violated his right to a jury determination of his willfulness. We disagree. Mak ignores the fact that the district court permitted him to present defense witnesses (including experts and Mak’s co-authors) who contended that the QED and Solid State documents were not technical data, and to argue that the evidence showed that the defendant did not believe the documents required an export license.
Mak also argues that the language of the court’s instructions permitted the Government to make an improper argument and did not allow him to effectively respond to that argument. In closing argument, the prosecutor said:”[Mak’s witnesses] tried hard to say that what we’re dealing with here, in the QED document, is not technical data. You just heard from the court that whatever those witnesses said, this is technical data.” Considered out of context, this appears to be an objectionable and inaccurate characterization of the jury instructions, which told the jurors that they had to accept that the QED and Solid State documents contained information “required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles.”As we have noted, the court’s instructions did not conclusively state that the information in the QED and Solid State documents was “technical data.” However, the thrust of the Government’s argument, in which that objectionable statement was made, concerned the credibility of Mak’s witnesses who testified that they believed the information in the QED document was either in the public domain or not related to submarines. Specifically, the Government focused on Mak’s failure to address the fact that the information in the QED document was not disclosed in the most relevant patent—the most likely way in which it would have fallen within the public domain. The Government then explained that the QED document plainly described, and sometimes even illustrated, the submarine technology that served as the focus of the QED project—clearly falling under Paragraph (a) of Category (VI) of the USML. 22 C.F.R. § 121.1(VI)(a). These arguments related to the Government’s claim that Mak must have known that the QED document pertained to submarine technology because just four days before he attempted to send the QED document to China he had emailed another Paragon employee about a submarine-related question for the QED project. The Government thus argued that the jury should infer that Mak knew the QED document was “technical data” because he knew it related to the development of submarine technology. The jury instructions on public domain and willfulness left Mak free to argue that the evidence, including the testimony of the witnesses he presented, did not support this inference. The instructions did not remove the issue of Mak’s willfulness from the jury’s consideration, nor did they violate his Sixth Amendment right to present a meaningful defense.
Even if Mak’s right to present a meaningful defense was compromised, he cannot show the requisite prejudice because there was overwhelming evidence that he knew his actions were illegal. See United States v. Olano, 507 U.S. 725, 741 (1993) (defendant bears burden of showing that violation would have affected the outcome of the proceedings under third prong of plain error review). Indeed, there was ample evidence of Mak’s extensive export compliance training and knowledge, as well as evidence that he knew exactly what was contained in the QED and Solid State documents. Accordingly, we hold that the court did not plainly err in its instructions concerning willfulness, nor did it deprive Mak of his Sixth Amendment right to present a meaningful defense.
Finally, Mak challenges the district court’s failure to instruct the jury on the general systems descriptions and basic marketing information exceptions to technical data, under the Sixth Amendment. This constitutional challenge was not raised at the district court, nor did Mak proffer as a defense at trial that the information in the charged documents was generally-taught scientific information or basic marketing information. Accordingly, we review his challenge for plain error. Santiago, 46 F.3d at 890.
Mak never proffered as a defense that the information in the charged documents was generally-taught scientific information or basic marketing information; therefore, the district court was under no obligation to include the exceptions in its instructions. United States v. Freter, 31 F.3d 783, 788(9th Cir.1994). Moreover, the jury’s rejection of Mak’s public domain argument demonstrates that the omission of the aforementioned exceptions from the technical data instructions could not have affected the outcome of the proceedings as required under plain error review. Ultimately, Mak can neither show that the omission of this jury instruction clearly and obviously deprived him of a defense, nor that it prejudiced his substantial rights. Olano, 507 U.S. at 741. We hold that the district court did not plainly err because the three exceptions not included by the court are not elements of the offense, and therefore are not requisite components of the jury instructions.
IV. Ex Post Facto Clause
Article I, Section 9, paragraph 3 of the United States Constitution provides that “[n]o … ex post facto [l]aw shall be enacted.”A law violates the Ex Post Facto Clause “only if it criminalizes conduct that was not a crime when it was committed, increases the punishment for a crime beyond what it was at the time the act was committed, or deprives a person of a defense available at the time the act was committed.” Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir.1995).
Mak raises his Ex Post Facto Clause claim for the first time on appeal, so we review it for plain error. Baker, 10 F.3d at 1394. Mak argues that his prosecution and imprisonment violated the Ex Post Facto Clause because the Solid State and QED documents were certified as “technical data” on the USML between eight and eleven months, respectively, after he was arrested. Mak argues the documents only became criminally sanctionable because of the technical data certification secured by the Government after he was arrested, and therefore his prosecution violated the Ex Post Facto Clause.
Mak’s argument is unpersuasive because he assumes that technical data is not included on the USML until it is certified. This is incorrect. The USML consists of a wide array of categories of defense articles and technology that are not certified in subcategories, nor need they be. The USML does not list particular documents because so many qualifying documents exist. Indeed, it would likely be impossible for the USML to be continuously updated with every new technology and every permutation of existing technology. The Government’s certification in this case served only to confirm that the documents were covered by the USML at the time of the offense. The QED and Solid State documents were clearly covered by the USML at the time of Mak’s arrest and conviction because they directly related to “[w]arships, amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels and any vessels specifically designed or modified for military purposes.”22 C.F.R. § 121.1(VI)(a). Accordingly, because the documents fell within a category included by the USML at the time of the offense, his prosecution and conviction does not violate the Ex Post Facto Clause.
For the foregoing reasons, we AFFIRM Mak’s conviction.
nationalsecuritylaw United States v. El Khalifi (E.D. Va. June 22, 2012) (guilty plea in US Capitol bomb plot)June 27, 2012
From DOJ’s press release:
ALEXANDRIA, Va. – Amine El Khalifi, a 29-year-old resident of Alexandria, Va., pleaded guilty today in federal court in the Eastern District of Virginia in connection with his efforts to carry out a suicide bomb attack on the U.S. Capitol Building in February 2012 as part of what he intended to be a terrorist operation.
The guilty plea was announced by Neil H. MacBride, U.S. Attorney for the Eastern District of Virginia; Lisa Monaco, Assistant Attorney General for National Security; and James W. McJunkin, Assistant Director in Charge of the FBI Washington Field Office.
At a hearing today before U.S. District Court Judge James C. Cacheris, El Khalifi pleaded guilty to one count of attempted use of a weapon of mass destruction (specifically, a destructive device consisting of an improvised explosive device) against U.S. property, namely the U.S. Capitol Building in Washington, D.C. As part of the plea agreement, the United States and El Khalifi agree that a sentence within a range of 25 years to 30 years incarceration is the appropriate disposition of this case. Sentencing has been scheduled for Sept. 14, 2012.
El Khalifi, an illegal immigrant from Morocco, was arrested and charged by criminal complaint on Feb. 17, 2012. His arrest was the culmination of an undercover operation during which he was closely monitored by the FBI Washington Field Office’s Joint Terrorism Task Force (JTTF). The explosives and firearm that he allegedly sought and attempted to use had been rendered inoperable by law enforcement and posed no threat to the public.
“Amine El Khalifi sought to bring down the U.S. Capitol and kill as many people as possible,” said U.S. Attorney MacBride. “He admitted today that he picked the targets, weapons, and means of the suicide attack while working with someone he believed was an Al Qaeda operative.”
“Amine El-Khalifi today admitted that he attempted to carry out a suicide attack on the U.S. Capitol as part of what he believed would be a terrorist operation,” said Assistant Attorney General Monaco. “I thank all those responsible for ensuring that El Khalifi’s violent plans never came to fruition.”
“The FBI’s top priority is stopping terrorism, and we remain vigilant against those who attempt to commit violence against the United States,” said Assistant Director in Charge McJunkin. “Today’s plea is the result of the hard work of dedicated Special Agents, analysts and prosecutors as well as officers from our partner law enforcement agencies that make up the Joint Terrorism Task Force.”
According to the statement of facts and other court documents filed in the case, in January 2011, a confidential human source reported to the FBI that El Khalifi met with other individuals at a residence in Arlington, Va., on Jan. 11, 2011. During this meeting, one individual produced what appeared to be an AK-47, two revolvers and ammunition. El Khalifi allegedly expressed agreement with a statement by this individual that the “war on terrorism” was a “war on Muslims” and said that the group needed to be ready for war.
According to court documents, El Khalifi sought to be associated with an armed extremist group, and on Dec 1, 2011, he was introduced by a man he knew as “Hussien” to an individual named “Yusuf,” who was, in reality, an undercover law enforcement officer. Throughout December 2011 and January 2012, El Khalifi proposed to carry out a bombing attack. His proposed targets included a building that contained U.S. military offices, as well as a synagogue, U.S. Army generals and a restaurant frequented by military officials.
During meetings with the undercover officer, El Khalifi handled an AK-47and indicated his desire to conduct an operation in which he would use a gun and kill people face-to-face. He also selected a restaurant in Washington, D.C., for a bombing attack; handled an explosive as an example of what could be used in the attack; conducted surveillance to determine the best place and time for the bombing and purchased materials as part of the planned operation.
On Jan. 7, 2012, “Hussien” informed El Khalifi that he was an al-Qaeda operative. El Khalifi discussed the possibility that his planned bombing of the restaurant would be followed by a second attack against a military installation to be conducted by others who El Khalifi believed to be associated with al-Qaeda.
On Jan. 15, 2012, El Khalifi stated that he had modified his plans for his attack. Rather than conduct an attack on a restaurant, he wanted to conduct a suicide attack at the U.S. Capitol Building. That same day at a quarry in West Virginia, as a demonstration of the effects of the proposed bomb operation, El Khalifi dialed a cell phone number that he believed would detonate a bomb placed in the quarry. The test bomb detonated, and El Khalifi expressed a desire for a larger explosion in his attack. He also selected Feb. 17, 2012, as the day of the operation.
Over the next month, El Khalifi traveled to the U.S. Capitol Building several times to conduct surveillance, choosing the spot where he would be dropped off to enter the building, the specific time for the attack and the method he would use to avoid law enforcement attention. El Khalifi also asked Hussien to remotely detonate the bomb he would be wearing on the day of the attack if El Khalifi encountered problems with security officers, and to provide El Khalifi with a gun that he could use during the attack to shoot any officers who might attempt to stop him.
On Feb. 17, 2012, El Khalifi traveled to a parking garage near the U.S. Capitol Building. El Khalifi took possession of a MAC-10 automatic weapon and put on a vest containing what he believed to be a functioning bomb. Unbeknownst to El Khalifi, both the weapon and the bomb had been rendered inoperable by law enforcement. El Khalifi walked alone from the vehicle toward the U.S. Capitol, where he intended to shoot people and detonate the bomb. El Khalifi was arrested and taken into custody before exiting the parking garage.
This investigation is being conducted by the FBI’s Washington Field Office. The prosecution is being handled by Assistant U.S. Attorneys Gordon Kromberg and Michael Ben’Ary of the U.S. Attorney’s Office for the Eastern District of Virginia, as well as Trial Attorneys Joseph Kaster and Courtney Sullivan from the Counterterrorism Section of the Justice Department’s National Security Division.
# # #
In this opinion, a district judge in Minnesota dealing with a material support/murder conspiracy prosecution addresses the admissibility of FISA-derived evidence. No new ground here; it’s a fairly typical treatment of such issues:
United States District Court,
UNITED STATES of America, Plaintiff,
Mahamud Said OMAR, Defendant.
Criminal No. 09–242 (MJD/FLN).
June 20, 2012.
John Docherty and Charles Kovats, Assistant United States Attorneys and William M. Narus, U.S. Department of Justice, Counsel for Plaintiff.
MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS, Chief Judge.
Defendant has been charged by Indictment with conspiracy to provide, and providing, material support to terrorists, in violation of 18 U.S.C. §§ 2339A and 2; conspiracy to provide, and providing, material support to a Foreign Terrorist Organization (“FTO”), in violation of 18 U.S.C. §§ 2339B(a)(1) and 2; and conspiracy to kill, kidnap, maim and injure, in violation of 18 U.S.C. § 956.
The government has provided notice to the Court and to the Defendant pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C § 1806(c) and 1825(d), that it intends to introduce at trial evidence obtained and derived from electronic surveillance and/or evidence obtained from physical searches conducted pursuant to 50 U.S.C. §§ 1801–12 and 1821–29. (Doc. No. 27.)
Defendant has filed a motion for disclosure of certain FISA materials and to suppress any FISA-derived evidence. (Doc. No. 112.) In response, the government has filed a classified, as well as a redacted, unclassified memorandum opposing the motion. The Defendant’s motions have triggered this Court’s review of the FISA applications and orders pursuant to 50 U.S.C. § 1806(f) to determine whether the surveillance was lawfully authorized and conducted.
I. Foreign Intelligence Surveillance Act
FISA governs electronic surveillance and physical searches within the United States for foreign intelligence purposes. Each application for a warrant pursuant to FISA shall include the following:
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance …
The application should also include a certification from the appropriate official:
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques …
Id. § 1804(6).
Finally, the application should include a summary of the surveillance to be conducted and whether a physical entry is required, whether “previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application” and the time period for which surveillance is needed. Id. § 1804(a)(7)-(9).
Each application must then be presented to a judge having jurisdiction pursuant to § 1803 (referred to herein as the “FISA Court”).50 U.S.C. § 1804. When reviewing a request for a warrant, the FISA Court must find “probable cause to believe that the target of the surveillance is a ‘foreign power or an agent of a foreign power’ and that the place or facilities to be surveilled are ‘being used, or … about to be used, by a foreign power or an agent of a foreign power.’ “ United States v. Abu–Jihaad, 630 F .3d 102,117–18 (2d Cir.2010) (quoting 50 U.S.C. § 1805(a)(2)).
FISA further provides that the target of surveillance “may move to suppress the evidence on the grounds that [it] was unlawfully acquired or the surveillance was not made inconformity with [a FISA] order …”50 U.S.C. § 1806(e). Where such a motion is filed, or a motion to discover or obtain FISA applications or orders is made, the court must, upon the filing of an affidavit from the Attorney General that disclosure of such material or an adversary hearing would harm national security,
review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
II. Motion to Disclose
Defendant moves for an Order directing the government to disclose the FISA applications and related materials used by the government in any phase of its investigation of him. Disclosure of such materials is warranted “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”50 U.S.C. § 1806(f). Where the court “determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.”Id. (citing 50 U.S.C. § 1806(g)). Disclosure is thus “the exception and ex parte, in camera determination is the rule.”Abu–Jihaad, 630 F.3d at 129 (internal citations omitted).
In this case, Attorney General Eric Holder has filed an affidavit dated April 5, 2012, declaring that disclosure of classified material or an adversary proceeding concerning such material would harm national security. (Government’s Exhibit 1.) The Court has thus conducted an ex parte, in camera review of the applicable FISA applications, orders and related materials as provided in § 1806(f).
In determining whether disclosure is necessary, the Court should consider whether, after its initial review, any irregularities are revealed, such as whether: the materials evidence a possible misrepresentation of fact; the persons to be surveilled are not clearly identified; or the surveillance records include a significant amount of nonforeign intelligence information, indicating a possible issue with the minimization standards utilized. United States v. Warsame, 547 F.Supp.2d 982, 987 (D.Minn.2008) (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982)). Based on its ex parte, in camera review, no such irregularities were revealed. The Court thus finds that disclosure of the materials is not necessary to make an accurate determination of the legality of the surveillance.
III. Motion to Suppress
The Defendant has moved to suppress any FISA-derived evidence on the grounds that such evidence was obtained in violation of his rights under the First, Fourth, Fifth and Sixth Amendments. The Defendant further argues that the FISA applications contained false statements, recklessly made, triggering a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
A. Statutory Requirements
When reviewing FISA applications and orders to determine compliance with FISA procedures, the Court must keep in mind that “FISA warrants are subject to ‘minimal scrutiny by the courts,’ both upon initial presentation and subsequent challenge.”AbuJihaad, 630 F.3d at 130 (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984)). When reviewing a FISA application, the FISA Court considers whether the application makes the proper probable cause showing that the target of the warrant is a foreign power or an agent of a foreign power and that the facilities or places to be searched or surveilled are being used by the foreign power/agent, whether the application is otherwise proper, and when the target is a United States citizen, whether the application’s certifications are not clearly erroneous. Id. When reviewing a FISA Court Order, the reviewing court must presume as valid “ ‘the representations and certifications submitted in support of an application for FISA surveillance …’“ absent a showing sufficient to trigger a Franks hearing FN1.”Id.
FN1. In Franks, the United States Supreme Court held that to be entitled to a hearing to challenge the veracity of a warrant affidavit, a defendant must first make a showing that the affidavit contains deliberate falsehoods or statements made with a reckless disregard of the truth, and an accompanying offer of proof. 438 U.S. at 171.
With this standard in mind, the Court has thoroughly reviewed the FISA applications, orders and related materials, as well as the government’s classified memorandum in opposition to the motion to suppress and for disclosure. As discussed below, the Court finds that both the applications and orders complied with all requirements set forth in 50 U.S.C. § 1805(a) and there has been no showing to trigger a Franks hearing.
The FISA applications and orders in this case satisfy the statutory requirements set forth in 50 U.S.C. §§ 1804(a) and 1805(a). The applications were made by a federal officer and were approved by the Attorney General or his authorized designate. Further, the applications contain the required statements and certifications. Also, no showing has been made which provides a basis to find that any of the facts contained in the FISA application are false or were made with reckless disregard for the truth.
2. Minimization Procedures
The minimization procedures contained in the FISA applications must comply with Section 1801(h), which provides:
“Minimization procedures”, with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
After carefully reviewing the minimization procedures described in the FISA applications, the Court finds that such procedures comply with the statutory requirements set forth in Section 1801(h). The Court further finds that the government followed these procedures to appropriately minimize the information it obtained.
3. Probable Cause
In reviewing a FISA application, the FISA Court is to determine whether the application establishes probable cause that “A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”50 U.S.C. § 1805(a)(2).
In making the probable cause determination, the FISA Court may also “consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target .”Id. § 1805(b). “Foreign power” is not limited to a foreign government, it also includes a “group engaged in international terrorism or activities in preparation therefor.”§§ 1801(a) and 1821(1). Further, an “agent of a foreign power” is one who “knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power” and “anyone who knowingly aids, abets, or conspires with any person to engage in the activities described in the Act.”Id.§§ 1801(b)(2) and 1821(1). Finally, “international terrorism” is defined as including conduct that “involve[s] a violent act[ ] or act[ ] dangerous to human life that [is] a violation of the criminal laws of the United States” that appears intended to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnaping; and occurs totally outside the United States or transcend national boundaries.”Id.§§ 1801(c) and 1821(1).
There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See AbuJihaad, 630 F.3d at 130; Warsame, 547 F.Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court’s review is ex parte ). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that the FISA targets were agents of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by such FISA targets.
Finally, Defendant raises concern that the government did not follow the time limits of surveillance. Based on its ex parte, in camera review, the Court finds that the government complied with the time limits of surveillance set forth in the applicable orders.
Based on the above, the Court finds that Defendant’s motion to suppress any evidence obtained directly or indirectly from the interception of electronic communications on the grounds that the FISA applications and orders did not meet the statutory requirements of FISA must be denied.
B. Fourth Amendment
Defendant argues that any FISA-derived evidence should be suppressed as such evidence was obtained in violation of his Fourth Amendment rights. To the extent that Defendant’s motion is based on the arguably lower probable cause standard applied to FISA applications, many courts, including the Eighth Circuit, have found that the probable cause standard set forth in FISA does not violate the Fourth Amendment. See United States v. Duka, 671 F.3d 329, 336 (3d Cir.2011) (rejecting defendant’s constitutional challenges to FISA under the Fourth Amendment); AbuJihaad, 630 F.3d at 120; United States v. Isa, 923 F.2d 1300, 1304 (8th Cir.1991); Warsame, 547 F.Supp.2d at 993–94. Accordingly, to the extent the Defendant’s constitutional challenge is based on the probable cause standard set forth in FISA, the motion must be denied.
To the extent that Defendant’s motion is based on the argument that the “significant purpose” test violates the Fourth Amendment because there is no requirement of a probable cause showing that a crime is being committed, this argument has also been rejected by a number of courts. See, e.g., Duka, 671 F.3d at 343–44;AbuJihaad, 630 F.3d at 127; Warsame, 547 F.Supp.2d at 995 (noting that courts addressing this issue, save one, have upheld FISA as consistent with the requirements of the Fourth Amendment). Based on the applicable law, the Court is satisfied that FISA’s significant purpose requirement is consistent with the Fourth Amendment’s protections against unreasonable searches and seizures.
Finally, to the extent the motion is based on Mayfield v. United States, 504 F.Supp.2d 1023 (D.Or.2007) that decision has been vacated and is no longer of any persuasive value. Mayfield v.. United States, 599 F.3d 964 (9th Cir.2010)cert. denied 131 S.Ct. 503 (Nov. 1, 2010) (vacating the judgment of the district court without reaching the merits, and remanding for dismissal).
C. Fifth Amendment
To the extent that the Defendant argues that FISA’s provisions for in camera and ex parte review violates his rights to due process, the Court finds that such argument has been rejected on many occasions. See, e.g., AbuJihaad, 630 F.3d 129 (finding that the court’s ex parte, in camera review permitted it to assess the legality of the surveillance and the requirements of due process did not counsel otherwise); United States v. Damrah, 412 F.3d 618, 624 (6th Cir.2005); United States v. Ott, 827 F.2d 473, 476–77 (9th Cir.1987); Warsame, 547 F.Supp.2d at 988–89. This Court is also satisfied that its review of the FISA materials permitted the Court to adequately assess the legality of the surveillance, and that due process did not counsel otherwise. Accordingly, the motion to suppress based on a violation of the Fifth Amendment will be denied.
IT IS HEREBY ORDERED:
1. Defendant’s Motion for Disclosure and Review of all FISA Materials, and Suppression of All FISA–Derived Evidence [Doc. No. 112] is DENIED.
2. The Court further finds that the Motion [Doc. No. 112] and this Memorandum Opinion and Order do not reference any sensitive or classified material that is the subject of this Court’s Protective Order [Doc. No. 99]. Accordingly, the Motion [Doc. No. 112] shall be unsealed.
From DOJ’s press release (see also the attached Informations):
NEW YORK, N.Y. – Wesam El-Hanafi and Sabirhan Hasanoff have pleaded guilty in Manhattan federal court to providing material support, including financial support, equipment and technical advice, to al-Qaeda associates in Yemen and elsewhere, and to conspiring to provide material support to al-Qaeda over the course of nearly three years. El-Hanafi pleaded guilty today before U.S. District Court Judge Kimba M. Wood, and Hasanoff pleaded guilty before Judge Kimba Wood on June 4, 2012. They were transferred into U.S. custody following their arrests in the United Arab Emirates in 2010.
The guilty pleas were announced by Preet Bharara, U.S. Attorney for the Southern District of New York; Janice K. Fedarcyk, Assistant Director-in-Charge of the New York Field Office of the FBI; and Raymond W. Kelly, Police Commissioner of the City of New York.
U.S. Attorney Bharara said, “The pleas of these two avowed supporters of al Qaeda is a chilling reminder of the threat of homegrown terrorists and the unwavering vigilance that must be exercised so they can be thwarted – as they were in this case. It is also a reminder of the commitment that we share with our law enforcement partners to identify, prosecute and punish those who would do harm to the United States and its citizens.”
Beginning in 2007, El-Hanafi and Hasanoff conspired with others to support and receive assignments from al-Qaeda. In November 2007, Hasanoff received approximately $50,000 from a co-conspirator (CC-1), with the understanding that at least a portion of the money would be used to support the terrorist organization. In February 2008, El-Hanafi traveled to Yemen, where he met with two members of al-Qaeda. While in Yemen, El-Hanafi swore an oath of allegiance to al-Qaeda, received instructions from al-Qaeda on operational security measures, and received assignments to perform for al-Qaeda. Also while in Yemen, El-Hanafi instructed the members of al-Qaeda on how to communicate covertly over the Internet in a manner that would avoid law enforcement detection.
After El-Hanafi returned from Yemen, Hasanoff also swore allegiance to al-Qaeda. About three months later, in May 2008, El-Hanafi met with CC-1 in Brooklyn to discuss CC-1 also joining al-Qaeda, and Hasanoff and El-Hanafi subsequently had additional discussions with CC-1 about joining al-Qaeda. During the same approximate time period, El-Hanafi purchased a subscription for a software program that enabled him to communicate securely with others over the internet.
El-Hanafi and Hasanoff also helped finance the terror group by regularly sending money to al-Qaeda through international wire transfers and through couriers. El-Hanafi and Hasanoff also were interested in fighting with al-Qaeda in Afghanistan, Iraq and other locations abroad, and they discussed traveling to engage in jihad, although they never succeeded in participating in armed conflict.
In June 2008, El-Hanafi directed CC-1 to perform various tasks for al-Qaeda. At that time, Hasanoff instructed CC-1 not to use his U.S. passport when traveling because a U.S. passport with fewer immigration stamps would be more valuable to al-Qaeda.
Additionally, in August 2008, Hasanoff traveled to New York City where he performed assignments for al-Qaeda. El-Hanafi and Hasanoff continued discussions about seeking out more contacts with al-Qaeda through 2009.
El-Hanafi, 37, is a U.S. citizen who was born and lived in Brooklyn, N.Y. Hasanoff, 36, is a dual citizen of the United States and Australia, who also resided in Brooklyn.
El-Hanafi and Hasanoff each face a maximum sentence of 20 years in prison. Hasanoff is scheduled to be sentenced by Judge Wood on July 23, 2012. El-Hanafi is scheduled to be sentenced by Judge Wood on October 22, 2012.
U.S. Attorney Bharara praised the outstanding investigative work of the FBI’s New York-based Joint Terrorism Task Force (JTTF) – which principally consists of special agents of the FBI and detectives of the New York City Police Department. He also thanked the Department of Justice’s National Security Division and Office of International Affairs, the Department of State, the Kansas City-based JTTF and the U.S. Attorney’s Office for the Western District of Missouri for their extraordinary assistance in this matter.
This case is being handled by the Office’s Terrorism and International Narcotics Unit. Assistant U.S. Attorneys Brendan R. McGuire, John P. Cronan, Glen Kopp, Aimee Hector and Michael Lockard and are in charge of the prosecution.
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