Petition for Writ of Certiorari — Spawr Optical Research, Inc. v. United States

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" JOSEP

NO. 88- WF. SPANIOL, Jp

Sn the Supreme Court Of The Anited States

OCTOBER TERM, 1988

SPAWR OPTICAL RESEARCH, INC.

WALTER J. SPAWR, AND

FRANCES SPAWR, PETITIONERS

™.

UNITED STATES OF AMERICA, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Of Counsel Steven R. Perles*

Professor Scott C. Whitney Stang & Perles

1307 N. Kirkwood Rd. 1629 K St., Suite 601

Arlington, VA 22201 Washington, D.C. 20006

(703) 525-5571 (202) 223-5730

Joan E. Teplow

400 S. Ramona Ave.

Suite 206

Corona, CA 91719

(714) 734-3820

*Counsel of Record

QUESTIONS PRESENTED

1. Whether, in a criminal prosecution under the Export

Administration Act, Congress intended to create an enforcement

system in which the guilt-determinative issue of fact, whether

the exported commodity was listed on the Commodity Control

List and therefore required a validated license before export,

shall be conclusively determined by the Secretary of

Commerce, rather than by the trier of fact -- in this case, the

jury.

- Whether, if the Export Administration Act is interpreted

to vest this irrebutable guilt-determinative power in the

Secretary of Commerce, such interpretation would deprive the

defendant in such crimninal prosecutions of the right to trial by

jury guaranteed by the sixth amendment and deny the defendant

due process rights guaranteed by the fifth amendment of the

United States Constituition.

a Whether, under the terms of the Export Administration

Act, if a commodity cannot lawfully be subjected to export

controls because it has been determined by the Secretary of

Commerce to be available without restriction from sources

outside the United States and has appropriate non-strategic end

uses, the export of the commodity without a license can be

deemed to violate the Act in a criminal prosecution.

THE PARTIES

The petitioners, named in'the caption, were defendents

and appellants below. Walter J. Spawr and Frances Spawr are

individuals who are husband and wife. Spawr Optical

Research, Inc., is a closely held corporation, wholly owned by

the Spawr family. The appellee below, respondent in this

Court, is the United States of America.

ill

TABLE OF CONTENTS

Page

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sai il ci neisiasvaveunsnesdeesanssacsaes 2

ae cit hetatajureckavaessekernsdssuvienes 2

Reasons for Granting the Writ................0..008. 9

i. The Statutory Question................ 14

II. The Constitutional Question.......... 18

Ill. The ia of Commerce Could

Not Lawfully Have Listed The

a ae &, to) Sa eee 22

ae sat cba cha uahiudseabusaenenaceeneds ao

APPENDIX A

Opinion of the United States Court of

Appeals for the Ninth Circuit.................. la

APPENDIX B

Order of the United States District Court

for the Central District of California........... 17a

APPENDIX C

Opinion of the United States Court of

Appeals for the Ninth Circuit Denying

Petition for Rehearing and Suggestion

for Rehearing en Danc............cccceeeeeeeees 27a

APPENDIX D

Title 50, Appendix - War and National

Defense §§ 2401 - 2413..................0+ 28a

APPENDIX E

SS CPR, SPR oiiceresdrenpsesere 32a

APPENDIX F

15 C.F.R. 399.2, Interpretation 29........... 33a

APPENDIX G

July 2, 1987 Letter from Daniel O. Hill..... 40a

OC Document No. 5655...-.0:::.0..06..05:.0:. 42a

APPENDIX H

Declaration of Alan E. Hill................... 44a

TABLE OF AUTHORITIES

Page

CASES

Apodaca v. Oregon, 406 U.S. 404 (1972)........... 19

Brady v. Maryland, 373 U.S. 83 (1963)............. 4,8

Dart v. United States, 848 F.2d 217 (1988)......... 12

Duncan v. Louisiana, 391 U.S. 145 (1968).......... 19

Estep v. United States, 327 U.S. 114 (1946)........ 13,14,17,

In re Winship, 397 U.S. 358 (1970)............0000. 12,13,20,

Morissette v. United States, 342 U.S. 246

CE DSS) asic -usie-exansieahaiuicaneaieeeneeneieieae en 22

Muianey v. Wilbur, 421 U.S. 684 (1975)............ 21

Sandstrom v. Montana, 442 U.S. 510

CAG T9) sixnccssnntsinsicunnneealee ee ee iS,4i 22

Speiser v. Randall, 357 U.S. 513 (1958)............ 21

Singer v. United States, 380 U.S. 24 (1965)........ 20

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 467 U.S. 138

(PRG iosdestscacdincaeeee eee 12

United States v. Gregg, 829 F.2d 1430

(Sth Cir. 1987)...cccssscsrsccsssvscnsssnenensisensscesaes 10,11

United States v. Mandel, 696 F. Supp. 505

(B.D. Cah. 19GB paccccsisssenecccosssessuscesesesanasens 11

United States v. Mendoza -Lopez, 481 U.S.

S28 (UGB T) acccctcascnescsvenceveceseckutanmasvavtaneasree 14,17,25

United States v. Moller-Butcher, 560 F. Supp

550 (D. Mass. 1983)............cccccccscercscressreess 7,10,11,

United States v. Spawr Optical Research, Inc.

864 F.2d 1467 (9th Cir. 1988)...........c.c.s0sse0se00 passim

Williams v. Florida, 399 U.S. 78 (1970).......+++++. 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amie WV irececacssesstevscsestceonaen pe

U.S. Const. amen. Vibsdccecnniimunmencmes 7,19,20

STATUTES

Administrative Procedure Act, 5 U.S.C. § 704

(1982)....cscccoissessncsenenassapussnensncenaaweenanenaans 5,7,10,14

15,16

Export Administration Act of 1969, Pub. L.

No. 91-184, 83 Stat. 841 (1969), as amended by

Pub. L. No. 92-412, 86 Stat. 644 (1972) and Pub. L.

No. 93-500, 88 Stat. 1553 (1974) (current

version at 50 U.S.C. app. §§ 2401-2420

(1982 & Supp. IV 1986))...........::esseeceeeeseeees passim

4n the Supreme Court Of The Gnited States

OCTOBER TERM, 1988

No.

SPAWR OPTICAL RESEARCH, INC.,

WALTER J. SPAWR, AND

FRANCES SPAWR, PETITIONERS

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioners Spawr Optical Research, Inc., Walter J.

Spawr, and Frances Spawr respectfully pray that a writ of

certiorari issue to review the judgment of the court of appeals

entered in this case on December 29, 1988.

OPINIONS BELOW

The majority and dissenting opinions of the court of

appeals are reported at 864 F.2d 1467 and are annexed hereto

as Appendix A. The district court opinion is unreported and is

annexed hereto as Appendix B.

JURISDICTION

The judgment of the court of appeals was entered on

December 29, 1988. A timely petition for rehearing and

suggestion for a rehearing en banc was denied on February 23,

1989. The order denying rehearing is annexed hereto as

Appendix C. This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1) (1982).

STATUTE INVOLVED

In Appendices D and E, there are, respectively set forth

in pertinent part, the Export Administration Act of 1969, Pub.

L. No. 91-184, 83 Stat. 841 (1969), as amended by Pub. L.

No. 92-412, 86 Stat. 644 (1972) and Pub. L. No. 93-500, 88

Stat. 1553 (1974) (current version at 50 U.S.C. app. 8§ 2401-

2420 (1982 & Supp. IV 1986)), and provisions of the Code of

Federal Regulations pertaining thereto.

STATEMENT

This case concerns an order of the district court,

affirmed by a divided panel of the court of appeals, that if

allowed to stand would effectively preclude trial by jury in

criminal prosecutions brought under the Export Administration

Act (EAA) for exporting commodities without a validated

license.

Under this order, whenever the Secretary of Commerce

determines a commodity is in fact on the Commodity Control

List (CCL), and thereby requires an export license, the trier of

fact must accept this determination as final. The prosecution is

relieved of proving as an element of the crime that the

commodity was listed on the CCL and required a valid license

before export. Intentional export without a license would

automatically be a crime because the accused would not be

allowed to present as a defense the fact that the commodity was

not on the CCL and did not require an export license. The

Secretary -- not the judge nor the jury -- would have the power

under this order to determine guilt in a criminal proceeding and

that determination would be final and unreviewable.

This extraordinary interpretation of the EAA arises out

of a criminal prosecution in which petitioners in 1980 were

convicted of exporting optical laser mirrors without obtaining a

validated export license required by the statute for

commmodities that have been listed on the CCL by officials

acting for the Secretary of Commerce. The case was tried in

the United States District Court for the Central District of

California before a jury. The Honorable William M. Byrne, Jr.

presided at the trial and also conducted the 28 U.S.C. § 2255

(1982) proceeding. Judge Bryne denied section 2255 relief and

his order was affirmed by a divided panel of the court of

appeals, the decision that is the subject of this petition.

At the trial, it was stipulated that petitioners had

exported the optical laser mirrors and that petitioners did not

have a validated export license. The sole disputed issue was

whether the mirrors exported by petitioners had been listed on

the CCL by the Secretary, and therefore required a validated

export license before they could lawfully be exported. This

issue was guilt-determinative. If the mirrors had been listed on

the CCL, the export without a license constituted a violation of

the Act. If the mirrors had not been listed, there is no dispute

that they could be freely exported without a license, that no

crime was committed, and petitioners were wrongfully

convicted.

There is no dispute that the trial judge read voluminous

instructions to the jury and submitted this disputed question of

fact, whether the mirrors had been listed on the CCL, to the

jury. When, however, petitioners in the section 2255

~ 4

proceeding adduced proof that the prosecution had, inter alia,

suppressed evidence that the mirrors had not been listed on the

CCL, in violation of Brady v. Maryland, 373 U.S. 83 (1963),

and that the prosecutor had, in order to establish that the

mirrors were in fact listed on the CCL, also knowingly

provided the judge and jury with a bogus list instead of the

authentic CCL,! the district court found that petitioners were

not materially prejudiced by this suppression of evidence and

prosecutorial misconduct because the issue of whether the

Spawrs' optical laser mirrors were included on the CCL was

not a triable issue and because "[t]he issue is not one which

goes to the jury." (App. 24a.) For the same reason, the court

found that petitioners were not materially prejudiced by the

failure of their trial counsel to conduct any discovery, to depose

any witnesses, to request any documents, to propound any

interrogatories or, with one exception, even to interview

possible defense witnesses.

After review de novo, a divided panel of the court of

appeals affirmed on the ground that the petitioners had failed to |

show that the suppression of exculpatory evidence and the

prosecutorial misconduct were material to the outcome of the |

trial and had been prejudicial. The majority accepted the view

of the district court that the issue of whether the optical laser

mirrors were if fact listed on the CCL "was not a disputable

issue in their criminal trial." (App. 9a.) The court reasoned

1The bogus list was "Interpretation 29," a document published by the

Department of Commerce which comprises the list of commodities which '

may not be exported to Cuba, Cambodia, Libya, North Korea and North

Vietnam. (App. 39a.) By its terms, the listed commodities may be freely

exported to any other country in the world without license. The prejudice

resulted because "Interpretation 29" listed “optical elements and

appliances,” which misled both judge and jury.

that the suppression of exculpatory evidence and prosecutorial

misconduct:

can only be material if this licensing issue was

in controversy during trial. If the issue was not

in controversy, the Spawrs would hardly be

entitled to relief based on the prosecutor's

misconduct regarding evidence probative of that

issue or defense counsel's failure to detect such

misconduct.

(App. 10a.)

The judgment, of which review is sought, rests on the

holding that the issue of whether the optical laser mirrors were

included on the CCL is not a triable issue in a criminal trial even

though it is guilt-determinative, but instead, judges and juries in

individual criminal proceedings must defer to the determination

by the Secretary of Commerce that a commodity has, in fact,

been listed on the CCL.

This judgment rests on a series of imbricated reasons

arising from the majority's interpretation of the so-called

“finality clause" of the EAA, in force at the time of the export in

question, which precludes judicial review of certain functions

exercised and certain orders issued by the Secretary under the

EAA. Section 2407 proclaims that "functions exercised under

this Act are excluded from the operation of" those sections of

the Administrative Procedure Act (APA) that guarantee judicial

review for persons "adversely affected or aggrieved by agency

actions." This provision clearly precludes judicial review of the

appropriateness of an order by the Secretary, inter alia, listing a

commodity on the CCL. This provision was enacted according

to the majority to prevent "judicial factfinding on intricate

licensing questions" because it would "undermine the

Secretary's authority if judges and juries in individual criminal

proceedings were permitted to reverse licensing

determinations." (App. lla, 12a.) The majority thus

interpreted this preclusion of judicial review with respect to

administrative determinations concerning the appropriateness

of listing goods on the CCL as also precluding judges and

juries from determining in criminal proceedings the issue of

whether a commodity had, in fact, been listed on the CCL, a

finding that in turn automatically determines whether a license

is legally required.

The majority, blurring the distinction between whether a

commodity should be listed and whether it in fact had been

listed, concluded that "when the Secretary has issued a license

or order, the factfinder is instructed to accept it as law, without

considering its advisability." (App. 12a.) This supersession of

the judge and jury by the Secretary in individual criminal

prosecutions is, according to the majority, absolute -- "[r]ight

or wrong, the trial court must accept [the Secretary's]

determination as a matter of law" and "the government need not

establish independently at trial . . . that the Spawrs' optical

laser mirrors were included on the CCL and therefore subject to

the licensing requirement." (/d.) The mere act of intentional

export is all the government needed to prove, according to the

majority, to obtain conviction of petitioners. (App. 13a.)

The majority justified this unprecedented delegation of

plenary power to the Secretary in criminal cases on the grounds

that to do otherwise would "convert the judicial system into a

policy-making forum in which the judiciary possesses

significantly less expertise and resources than the Secretary”

which would, according to the majority, produce a “chaotic

and potentially dangerous result." (App. 12a.)

The majority conceded that, because the judge at trial

admitted the testimony of several expert witnesses called by the

government to adduce evidence to establish the optical laser

mirrors had in fact been listed on the CCL, that "itis arguabie

that the district court originally considered this a triable issue.

However, because we hold that the need for an export license

had been established conclusively by the Secretary, it was

harmless to place this issue before the jury." (App. 13a.)

Judge Pregerson dissented. He said that he couid not

agree with the statutory interpretation that provided the basis for

the majority's decision -- "These provisions [that exempt the

Secretary from APA judicial review of agency action] offer no

support for the majority's position that in a criminal trial the

factfinder is precluded from determining whether a commodity

was in fact listed on the CCL at the time of the alleged criminal

violation." (App. 14a.) Judge Pregerson also noted that the

majority had misconstrued United States vy. Moller-Butcher,

560 F. Supp. 550 (D. Mass. 1983), which, if read correctly,

“makes clear the distinction between judicial review of (1)

whether the Secretary actually did place a commodity on the

CCL -- a question of fact -- and (2) whether the Secretary

Should have placed a commodity on the list -- a question of

advisability." (App. 14a.) Finally, Judge Pregerson noted that

“the majority's reading of the Act also suffers from

constitutional infirmities." (App. 16a.) The constitutional

infirmities that Judge Pregerson noted include the abridgement

of petitioners’ "Fifth Amendment right to due process and the

Sixth Amendment guarantee of a criminal defendant's right to

trial by jury [which] require[s] not only that the government

prove every element of a criminal offense beyond a reasonable

doubt, but also that each element be submitted to an impartial

trier of fact." (/d.) Judge Pregerson concluded:

Whether the laser mirrors exported by the

Spawrs were in fact on the CCL at the time they

were exported is an essential element of the

offenses allegedly committed by them. It was

for the jury, not the Secretary of Commerce, to

determine whether the Spawrs' laser mirrors

were in fact an item listed on the CCL.

(/d.)

While the majority considered but dismissed petitioners’

showing that the prosecution suppressed exculpatory evidence

in violation of Brady, the petitioners’ showing of prosecutorial

misconduct, and the claim of lack of effective counsel, it

completely ignored and made no reference to petitioners’

further showing that the prosecution, with the connivance of

the chief prosecution witness, suppressed an official document

of the Department of Commerce in which the Secretary,

through the Office of Export Administration, had made an

explicit finding prior to the export in question that the optical

laser mirrors at issue had "an appropriate non-strategic end use”

and that they were freely available abroad, i.e., a finding of

"non-COCOM foreign availability." (App. 43a.) The official

Department of Commerce document explicitly found that

“comparable laser mirrors are available from Mirror Techneque

of Switzerland, a division of Laser Techneque of Switzerland."

(Id.)

The significance of this suppressed document is that

even if, arguendo, the optical laser mirrors had been listed on

the CCL, the Secretary, by virtue of the finding of foreign

availability, had a nondiscretionary duty under the Act to

remove the optical laser mirrors from the CCL and was

precluded as a matter of law from requiring a license to export

them.

Congress, in section 2403(b)(2) of the EAA,

commanded that whenever there is a finding by the Secretary

that a commodity is available without restriction from sources

outside the United States, the Secretary is subject to a

mandatory legal obligation to remove controls on the export of

such commodity from the United States and is prohibited from

requiring a license for export from the United States unless the

President determines by formal report to the Congress that

absence of controls would prove detrimental to the national

security of the United States. ( App. 29a.) This contention was

completely ignored by the court of appeals.

Petitioners sought rehearing with suggestion for

rehearing en banc. That petition was denied. (App. 27a.)

REASONS FOR GRANTING THE WRIT

~The law has become confused and conflicting regarding

the prosecution's burden of proof in a criminal proceeding

alleging violation of the Export Administration Act, a major law

regulating important aspects of the international trade of the

United States and which thereby impacts the economy of the

United States, its foreign policy and national security.2

In this case, a divided panel of the court of appeals has

affirmed a judgment of the district court in which the Secretary

of Commerce, not the finder of fact -- be it judge or, as in this

case, the jury -- would be vested with the power to decide the

guilt-determinative issue in criminal prosecutions under the

2 Interpretation of the EAA to vest plenary power in the Secretary of

Commerce to determine conclusively and after the fact that an exported

commodity was listed on the CCL and required a license would produce a

system in which no exporter would dare incur the risk of exporting any

commodity without first obtaining a license. This would overload the

licensing system process and produce inordinate delay in the export trade of

the United States.

EAA, i.e., whether a commodity has in fact been listed on the

CCL and therefore requires an export license. This conclusive

determination would be irrebuttable. The majority specifically

justified the vesting of this absolute power in the Secretary

because "the judiciary possesses significantly less expertise and

resources than the Secretary.” (App. 12a.) The majority

concluded, without supporting analysis, that under such a

special subsystem of criminal law, in its view, "the Spawrs are

not denied due process or the right to a jury trial by deference to

the Secretary's determination.” (/d.)

Judge Pregerson, dissenting, noted that a decision by a

district court in the First Circuit, United States v. Moller-

Butcher, 560 F. Supp. 550 (D. Mass. 1983), makes clear that

although the "finality clause" of the EAA excludes certain acts

of the Secretary from APA's judicial review provisions, it in

fact simply "goes to whether the Secretary ‘has the ultimate

authority to decide which goods are included on the list and

how they are classified’ not whether the goods were in fact on

the CCL." (App. 15a. (quoting Moller-Butcher, 560 F. Supp.

at 552)) That decision thus conflicts with the decision by the

majority in the instant case.

A decision by the Court of Appeals for the Eighth

Circuit also squarely conflicts with the majority's decision in

this case. In United States v. Gregg, 829 F.2d 1430, 1437

(8th Cir. 1987), the court described the essential elements of

the crime under the EAA and the government's burden of proof

in a criminal proceeding under the EAA:

[T]he Government needs to prove . . . that the

item exported appears on the . . . Commodity

Control List . . . that the defendant knowingly

and willfully exoorted it, with the necessary

intent and knowledge, and without an

appropriate license.

The court in Gregg interpreted Judge Zobel's decision in

Moller-Butcher in the same way as did Judge Pregerson, i.e.,

that only the executive department's exercise of discretion as to

whether a commodity should be listed on the CCL is precluded

from judicial review.

In another recent decision, United States v. Mandel,

696 F. Supp. 505 (E.D. Cal. 1988), the court construed the

EAA to require the Secretary to make a negative foreign

availability determination before a commodity may be lawfully

listed on the CCL and export controls imposed. Based on this

interpretation, the court in Mandel granted a motion to compel

the Secretary to produce documents to verify whether the

Secretary had made the threshold determinaton required by

section 2403 of the Act "before export controls are imposed."

Id. at 508 (emphasis in the original). The court noted that

preclusion of judicial review by the "finality clause" of the Act

did not extend to decisions made under sections 2403 and 2404

“which command that items not be listed unless the criteria

contained therein are met." Jd. at 510. Moreover, the court

noted that an indictment for failure to obtain a license before

exporting a commodity that is in fact listed on the CCL

“implicitly alleges that the Secretary's placement of the items on

the CCL complied with the requirements of sections 2403 and

2404." Id., at 508 n.13. This decision also conflicts with the

decision by the majority in the instant case and goes further in

limiting the scope of preclusion of judicial review compared to

Moller-Butcher and Gregg.

The Court of Appeals for the District of Columbia

Circuit, in a decision overruling the conviction under the EAA

of an exporter held, "that notwithstanding a statutory provision

that precludes judicial review of most enforcement decisions

under this export law, Congress did not withdraw from the

courts the power or obligation to enforce the procedural

safeguard that was flouted here." Dart v. United States, 848

F.2d 217, 219 (1988). In Dart, which involved imposition of

civil sanctions rather than the far more serious criminal

sanctions imposed upon petitioners in this case, the court held

the Secretary's action was subject to judicial review to

determine whether it violated either the EAA or the fifth

amendment. Jd. This interpretation of the scope of the EAA's

preclusion of judicial review of the Secretary's actions involves

yet another conflicting interpretation of the EAA.

Given the importance of the issue, and given these

disparate and conflicting interpretations of the EAA by courts in

four circuits, this Court should review and resolve these

conflicts in this case.

The issue raised in this case is not only one of first

impression and major public importance requiring clarification

to remove the conflicts shown in the above decisions, but the

majority in this case also rendered a decision which squarely

conflicts with two long-settled doctrines established by this

Court.

First, this Court has repeatedly enforced the prudential

rule that courts must adopt statutory interpretations which avoid

constitutional problems. See, Three Affiliated Tribes of the

Fort Berthold Reservation v. Wold Engineering, 467 U.S.

138, 157-58 (1984), and cases cited therein. Judge Pregerson,

in his dissenting opinion, pointed out major "constitutional

infirmities" that would result from the interpretation of the EAA

adopted by the majority. These constitutional infirmities

include violation of this Court's holding in Jn re Winship, 397

U.S. 358, 364 (1970):

[L]est there remain any doubt about the

constititional stature of the reasonable-doubt

standard, we explicitly hold that the Due

Process Clause protects the accused against

conviction except upon proof beyond a

reasonable doubt of every fact necessary to

constitute the crime of which he is charged;

and this Court's pronouncement in Sandstrom v. Montana, that

a conclusive presumption conflicts with the overriding

presumption of innocence and would invade the factfinding

function assigned solely to the jury in a criminal case. 442 U.S.

510, 523 (1979) (citing Morissette v. United States, 342 U.S.

246 (1952); United States v. United States Gypsum Co., 438

U.S. 442 (1978)).

There is a second conflict between the majority's

decision in the instant case with doctrine established by this

Court. The majority's decision is based upon its interpretation

of section 2407 of the EAA as precluding all judicial review of

the acts of the Secretary, including the issue in a criminal

prosecution of whether the Secretary has acted to list the

mirrors on the CCL. This interpretation conflicts with the

doctrine enunciated in Estep v. United States, 327 U.S. 114,

120-22 (1946), that a statutory provision vesting in an

administrative agency (the draft board) "final" authority to

classify persons for military service shall not be construed to

deny the power of federal courts in criminal prosecutions to

determine whether the board acted within its jurisdiction when

it classified petitioner to be eligible for military service. The

Court rejected an interpretation of the finality clause as barring

judicial review of the lawfulness of the classification decision

stating, "[w]Je are loath to believe that Congress reduced

criminal trials under the Act to proceedings so barren of the

customary safeguards which the law has designed for the

accused." /d. at 122. This Court has consistently rejected

attempts in criminal prosecutions to insulate administrative

decisions from judicial review when that decision constitutes

one of the elements of the alleged crime.

This principle has been applied in immigration cases in

which Congress made deportation orders "final" and not

subject to judicial review. This Court, relying inter alia on

Estep, recently held, "the result of an administrative proceeding

may not be used as a conclusive element of a criminal offense

where the judicial review . . . has effectively been denied."

United States v. Mendoza-Lopez, 481 U.S. 828, 838 n.15

(1987).

The depriviation of due process in the instant case

would be more flagrant than those which this Court condemned

in Estep and Mendoza-Lopez. Here the petitioners were

subjected in a criminal trial to a conclusive presumption that the

Secretary had acted to list the mirrors on the CCL and were

barred from submitting as a defense that the Secretary had not

acted, that the mirrors were not listed on the CCL, and an

export license was not required before the mirrors could be

lawfully exported.

I. THE STATUTORY QUESTION

At the time of the alleged offense, the EAA contained a

single provision, section 2407, which exempted the Secretary

with respect to "functions exercised under the Act" from the

judicial review provisions of the Administrative Procedure Act.

The majority in this case has interpreted this "finality clause" as

precluding the trier of fact in an individual criminal proceeding,

be it the judge or, as in this case, the jury, from independently

determining whether the commodity in question was listed on

the CCL at the time it was exported without a license.

——trt—“‘“‘OSCS;€;O*;*~™~™~~”

According to the majority's interpretation of the "finality

clause," once the Secretary asserts that the commodity is in fact

on the CCL, the issue of "whether the Spawrs' mirrors were

included on the CCL was not a triable issue." (App. 11a.)

Under the majority's interpretation of the EAA, once the

Secretary asserts the commodity was on the CCL at the time of

export,

[r]ight, or wrong, the trial court must accept this

determination as a matter of law. The

government need not establish independently at

trial, as an eiement of the charged offenses

beyond a reasonable doubt, that the Spawrs'

mirrors were included on the CCL and therefore

subject to the licensing requirement.

(App. 12a.)

By such logic, the majority would amplify the limited

preclusion of judicial review provided by section 2407 into a

grant of authority by Congress to the Secretary to control,

“right or wrong," the outcome of criminal prosecutions because

“the trial court must accept this determination as a matter of

law." (/d.) This interpretation is unsupported by the language

of the statute and, as noted later, violates petitioners’

constitutional rights.

The majority's statutory interpretation conflicts with this

Court's decisions concerning the effect to be given to "finality

clauses" when interpreting statutes. Section 2407 by its terms

exempts the Secretary only from the judicial review provided

by Section 704 of the APA, 5 U.S.C. § 704 (1982), review

which is limited to agency action. At trial the petitioners were

not challenging the appropriateness of the Secretary's listing the

mirrors on the CCL, “an agency action," but, as Judge

Pregerson noted, they were challenging ". . . whether their

product meets the description of an item previously placed on

the CCL by the Secretary." (App. 14a.) This description is set

forth in regulations promulgated ‘by the Department of

Commerce under authority granted by the EAA. The

prosecution called three expert witnesses to prove that the

mirrors did fit the "description of an item previously placed on

the CCL by the Secretary." (Jd.) The prosecutor also

suppressed the evidence from two expert witnesses who, when

interviewed prior to the trial, told him that the optical laser

mirrors did not fit the description of any item on the CCL. One

of these experts had participated in the drafting of the pertinent

regulations governing what lasers and laser components shall

be listed on the CCL. (See declaration of Alan E. Hill, App.

44a-46a.)

The issue whether the Secretary had listed the optical

laser mirrors on the CCL was thus not an attempt to obtain

judicial review of the appropriateness of an agency action under

section 704 of the APA, but was instead an attempt to

determine whether, in a criminal trial, the Secretary had ever ~

acted at all with respect to listing the optical laser mirrors on the

CCL.

The majority, by reading section 2407 not only to

preclude judicial review of agency decisions under the APA,

but to preclude the jury in a criminal proceeding from deciding

a disputed issue of fact that is an element of the crime, squarely

conflicts with this Court's established rule as to how finality

clauses shall be construed. Instead of construing section 2407

narrowly as this Court requires, the majority would interpret it

in an expansive fashion that would abrogate trial by jury in

criminal proceedings brought under the EAA.

This Court has invariably rejected attempts in criminal

prosecutions to insulate administrative decisions from judicial

review when that decision constitutes one of the elements of the

alleged crime. In Estep v. United States, this Court refused to

construe a finality clause in the Selective Training and Service

Act to bar inquiry in a criminal trial into whether the board's

classification decision "violated the rules and regulations which

define their jurisdiction." 327 U.S. at 121. The board's

classification of petitioner as eligible for military service was an

element of the crime of refusing to serve in the military forces.

Thus, the classification of Estep as eligible for military service

was guilt-determinative. The Court held, "[w]Je cannot readily

infer that Congress departed so far from the traditional concepts

of a fair trial when it made the actions of the board 'final' as to

provide that a citizen of his country should go to jail for not

obeying an unlawful order of an administrative agency." Jd. at

122.

Similarly, this Court in United States vy. Mendoza-

Lopez, refused to construe a finality clause in the Immigration

and Naturalization Act as barring judicial review of an

administrative determination that constituted an element of the

alleged offense in a criminal proceeding:

Our cases establish that where a determination

made in an administrative proceeding is to play a

critical role in the subsequent imposition of a

criminal sanction, there must be some

meaningful review of the administrative

proceeding.

481 U.S. at 837-38 (citing Estep v. United States, 327 U.S.

114, 121-22 (1946); Yakus v. United States, 321 U.S. 414,

444 (1944); McKart v. United States, 395 U.S. 185, 196-97

(1969)).

A fortiori, section 2407 of the EAA cannot be read in

this case to preclude determination by the jury of whether or not

the Secretary in fact performed an act, the listing on the CCL,

which is an essential element of the crime. Unless the

commodity was i: fact listed on the CCL, there was no

requirement for a license before the cominodity can be lawfully

exported and therefore no crime was committed.

II. THE CONSTITUTIONAL QUESTIONS

The effect of the majority's decision is to abridge

petitioners’ constitutional rights at two levels. On one level, the

majority condones the suppression of exculpatory evidence,

prosecutorial misconduct and the lack of effective counsel. The

rationale for condoning this misconduct as not being material or

prejudicial is, according to the majority, that the guilt-

determinative issue of whether the mirrors were in fact listed on

the CCL was not before the court or jury. The majority reads

the EAA to empower the Secretary to impose a conclusive

presumption of guilt once petitioners stipulated they had

knowingly exported the optical laser mirrors without a license.

Petitioners were not prejudiced by the suppression of

exculpatory evidence, prosecutorial misconduct, and ineffective

counsel, according to the majority, because petitioners were not

entitled to challenge this conclusive presumption, and the judge

and jury play no role in deciding whether the Secretary had in

fact placed the optical laser mirrors on the CCL.

The majority explicitly based its decision that the

Secretary, not the judge or jury, has plenary power to make this

conclusive presumption upon the supposition that "the judiciary

possess significantly less expertise and resources than the

Secretary." (App. 124.) This view conflicts with the holding

of this Court concerning the competence of juries:

ania

[T]he most recent and exhaustive study of the

jury in criminal cases concluded that juries do

understand the evidence and come to sound

conclusions in most of the cases presented to

them and that when juries differ with the result

at which the judge would have arrived, it is

usually because they are serving some of the

very purposes for which they were created and

for which they are now employed.

Duncan v. Louisiana , 391 U.S. 145, 157 (1968).

There can be do doubt that the majority's reading of the

EAA produces direct conflict with the sixth amendment which

commands that in all criminal prosecutions, the accused shall

enjoy the right to trial by an impartial jury and have effective

assistance of counsel for his defense.

This Court has repeatedly asserted this right as

mandatory and unqualified:

The framers of the Constitution strove to create

an independent judiciary but insisted upon

further protection against arbitrary action.

Providing an accused with the right to be tried

by a jury of his peers gave him an inestimable -

safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge. ... The deep commitment of

the nation to the right of jury trial in serious

criminal cases as a defense against arbitrary law

enforcement qualifies for protection under the

Due Process Clause... .

Id. at 156. See also Apodaca y. Oregon, 406 U.S. 404

(1972); Williams v. Florida, 399 U.S. 78 (1970); Singer v.

United States, 380 U.S. 24 (1965).

The majority based its decision upon the erroneous

conclusion that the issue of whether the mirrors had been listed

on the CCL "was not an element of the charged offense” and

thus the petitioners were "not denied due process or the right to

a jury trial by deference to the Secretary's determination.”

(App. 12a.) Yet the statute makes it clear that listing on the

CCL is a condition precedent to the requirement for an export

license. The dissent noted:

[It] does not follow that at a criminal trial the

Secretary's determination that a commodity has

been placed on the CCL must, as a matter of

law, be accepted by the jury. Placing this

question before the jury does not challenge the

advisability of the Secretary's initial decision to

list a commodity on the CCL. Therefore,

requiring the government to prove at a criminal

trial that the Spawrs' laser mirror was on the

CCL at the relevant time would not "undermine

the Secretary's authority" because such a

requirement in no way challenges the

Secretary's initial decision to place commodities

on the CCL and to issue or refuse to issue

licenses accordingly.

(App.15a. (emphasis in original))

The sixth amendment does not authorize Congress to

create exceptions and devise a special system of criminal law to

enforce export law in which both judge and jury are bypassed.

This Court has repeatedly interpreted the Constitution to require

the government to present proof to an independent and

unbiased trier of fact which establishes beyond reasonable

doubt all of the elements that constitute the alleged crime. This

Court, in Jn re Winship, held that, "Due process commands

that no man shall lose his liberty unless the Government has

borne the burden of . . . convincing the factfinder of his guilt."

397 U.S. at 364. The Court went on to emphasize:

Lest there remain any doubt about the

constitutional stature of the reasonable-doubt

standard, we explicitly hold that the Due

Process Clause protects the accused against

conviction except upon proof beyond a

reasonable doubt of every fact necessary to

constitute the crime with which he is charged.

Id. (emphasis added).

Acting on this principle, this Court has rejected

interpretations of statutes which would shift the burden of

proof from the government to the accused, Mulaney v. Wilbur,

421 U.S. 684 (1975), and has stressed that:

Where one party has at stake an interest of

transcending value -- as a criminal defendant

his liberty -- th[e] margin of error is reduced as

to him by the process of placing on the

[prosecution] the burden . . . of persuading the

factfinder at the conclusion of the trial of his

guilt....

Speiser v. Randall, 357 U.S. 513, 525-26 (1958).3

In Sandstrom v. Montana, 442 U.S. 510 (1929), this

Court overturned a murder conviction on the grounds that the

trial judge, by his phrasing of the jury instruction, had

presumed intent and had placed the burden on the accused to

rebut that presumption. The Court condemned the trial court's

action "to suppose to be true without proof" a key issue in the

3 Petitioner, Walter Spawr, was imprisoned for six months of a ten year

sentence and placed on probation for five years. The Corporation was fined

$100,000 and placed on probation for five years. Frances Spawr was given

a five year suspended sentence and placed on probation for five years. The

Spawrs continue to be denied export privileges until 1992 pursuant to a

civil sanction, imposed by the Secretary of Commerce without benefit of

hearing, based entirely on their criminal conviction .

LLL

case, id. at 517, relying upon Winship, and Morissette v.

United States, 342 U.S. 246 (1952), in reaching its conclusion

that:

[p]resumption in this case would "conflict with

the overriding presumption of innocence with

which the law endows the accused and which

extends to every element of the crime," and

would ‘invade [the] factfinding function’ which

in a criminal case the law assigns solely to the

jury.

Sandstrom, 442 U.S. at 523 (citations omitted) (emphasis

added).

The instant case presents an even more aggravated

denial of petitioners’ rights. The majority would make the

guilt-determinative presumption conclusive and irrebutable.

The dissent was clearly nght when it concluded:

[W]hether the laser mirrors exported by the

Spawrs were in fact on the CCL at the time they

were exported is an essential element of the

offenses allegedly committed by them. It was

then for the jury, not the Secretary of

Commerce, to determine whether the Spawrs'

laser mirrors were in fact an item listed on the

& &

(App. 16a.)

Il. THE SECRETARY OF COMMERCE COULD

NOT LAWFULLY HAVE LISTED THE MIRRORS

ON THE CCL.

The EAA empowers the Secretary to impose export

controls for reasons of national security, foreign policy, or

domestic short supply. 50 U.S.C. app. §§ 2402(2), (10),

2404-2406. These controls are implemented by licensing

requirements for commodities which meet the criteria set forth

in the Act. 50 U.S.C app. § 2403(a). The Act contains criteria

which govern the Secretary's imposition of export controls

which seek to balance the inherently conflicting interest of

controlling strategic technology for security reasons on the one

hand with the economic needs of the United States for foreign

trade on the other.

Section 2403(b)(2) of the EAA of 1969, as amended in

1972 by Pub. L. No. 92-412, the law in effect at the date of

export, provided:

[T]he President shall remove unilateral export

controls on the export from the United States of

articles, materials, or supplies, including

technical data or other information, which he

determines to be available without restriction

from sources outside the United States...

except that any such control may remain in

effect if the President determines that adequate

evidence has been presented to him

demonstrating the absence of control would

prove detrimental to the national security of the

United States.

(App. 29a. (emphasis added))

When, in the period after September, 1986, present

counsel for the petitioners reviewed the trial transcript and the

manner in which the trial was conducted, they discovered that

prior counsel for petitioners had not deposed any of the

prosecution witnesses nor attempted to obtain discovery with

respect to the alleged listing of the mirrors on the CCL.

Specifically, counsel for the defense had not deposed or

submitted interrogatories to John Kenneth Boidock, the key

prosecution witness from the Office of Export Administration,

who was Director of the Electronic Equipment Division during

the relevant time in 1976 and 1977. In an effort long after the

trial to repair these deficiencies in the preparation for trial,

present counsel filed a Freedom of Information Act request to

discover the facts pertaining, inter alia, to the alleged listing of

the mirrors. In a letter dated July 2, 1987, the Department of

Commerce informed counsel for petitioners that pertinent

material had been located in the Office of Export Enforcement,

that the documents would be processed for declassification, and

would be made available when the declassification process was

completed. (App. 40a-41a.) The declassification process was

completed on July 31, 1987, and the documents were turned

over to counsel on August 7, 1987, subsequent to the release of

the district court's order denying petitioners’ motion for

reconsideration.

One of these official documents of the Department of

Commerce, which was signed by witness Boidock and

approved by his superior, John W. Shephard, Division

Director, Policy Planning Division, Office of Export

Administration, disclosed that the mirrors in question had at the

time of export "appropriate non-strategic end use, and. . . non-

COCOM foreign availability." (App.43a.) This document

spelled out that "comparable laser mirrors are available from

Mirror Techneque of Switzerland, a division of Laser

Techneque of Switzerland." (/d.) Thus, the mirrors were,

within the terms of section 2403(b)(2), "available without

restriction from sources outside the United States." And,

because the mirrors had “appropriate non-strategic end use," it

was clear that export of the mirrors would not "prove

detrimental to the national security of the United States."

Witness Boidock, with the collusion of the prosecution,

suppressed this document. The legal effect of this document

was that even if the Secretary had at an earlier date listed the

—————— lle

ee EEE

mirrors on the CCL, the Secretary could no longer lawfully

require a license and had a non-discretionary duty to remove the

mirrors from the CCL once the determination had been made

that the mirrors were "available without restriction from sources

outside the United State." (App. 29a.)

Conviction of Petitioners in these circumstances

violates this Court's mandate that a citizen of this country

should not go to jail "for not obeying an unlawful order of an

administrative agency." Estep v. United States, 327 U.S. at

122. See also, United States v. Mendoza-Lopez, 481 U.S.

828 (1986). The suppression of this document by the

prosecution was clearly material and prejudicial. On this

ground alone, the conviction must be overturned.

CONCLUSION

This petition for a writ of certiorari should be granted.

Of Counsel teven R. Perles*

Prof. Scott C. Whitney Stang & Perles

1297 N. Kirkwood Rd. 1629 K St., Suite 601

Arlington, VA 22201 Washington, D.C. 20006

(703) 525-5571 (202) 223-5730

Joan E. Teplow

400 S. Ramona Ave.

Suite 206

Corona, CA 91719

*Counsel of Record (714) 734-3820

APPENDICES

TABLE OF CONTENTS FOR APPENDICES

APPENDIX A

Opinion of the United States Court of

Appeals for the Ninth Circuit.................. la

APPENDIX B

Order of the United States District Court

for the Central District of California........... 17a

APPENDIX C

Opinion of the United States Court of

Appeals for the Ninth Circuit Denying

Petition for Rehearing and Suggestion for

PUN GE BO acc ckicvinccsscansarcissanineses 27a

APPENDIX D

Title 50, Appendix - War and National

Defense $$ 2401 - 2413..............ccc000s. 28a

APPENDIX E

Pe Gea sdlc © BPN B xacdsceustenstssossasinnvoiaie 32a

APPENDIX F

15 C.F.R. 399.2, Interpretation 29........... 33a

at a 4

APPENDIX G

July 2, 1987 Letter from Daniel O. Hill of

Department of Commerce............--.:s++ 40a

OC Document No. 5653...........:::seeceeee 42a

APPENDIX H

Declaration of Alan E. Hill, attaching 15

CLP.R. BOG. Licrcccccccccccscoscccceescseseoecees 44a

APPENDIX A

United States Court of Appeals

For the Ninth Circuit

United States of America, ) No. 87-6272

Plaintiff-Appellee )

) DC Nos.

v. ) CR-80-0789-WMB

) and

Spawr Optical Research, Inc. ) CR-85-3193-WMB

Walter J. Spawr, and )

Frances Spawr, )

)

Defendants-Appellants OPINION

Appeal from the United States District Court

for the Central District of California

William Matthew Byrne, Jr., District Judge. Presiding

Argued and Submitted

March 7, 1988 - Pasadena, California

Filed December 29, 1988

Before: Harry Pregerson, Charles Wiggins

and Melvin Brunetti, Circuit Judges

Opinion by Judge Brunetti: Dissent by Judge Pregerson

OPINION

BRUNETTI, Circuit Judge:

BACKGROUND

In the early 1970's, Walter Spawr, an optics expert,

invented a superior process for polishing laser mirrors. By

1975, Walter and his wife Frances, through their corporation,

Spawr Optical Research, Inc. (collectively "the Spawrs"), were

marketing their laser mirrors nationally and exploring

international markets.

In January 1976, the Spawrs accepted an order from a

purchasing agency of the Soviet Government. They began

filling the order in June of that year by delivering some of the

mirrors to their agent in this country, who then departed for

West Germany. The Spawrs shipped the balance of the order

to the agent in West Germany in July. The agent then

forwarded the entire order to Moscow. The Spawrs never

attempted to obtain an export license for this shipment of

mirrors.

In April 1976, the Spawrs received a second Soviet

order. Walter decided to seek an export license for a portion of

this second order. He filed a license application with the

Commerce Department in May, identifying his agent in West

Germany as the end-user of the mirrors. On October 7, 1976,

the Secretary of Commerce ("Secretary") denied the

application, having determined that the Spawrs' mirrors were

included on the Commodity Control List ("CCL")! , and that

1 The CCL, established by the Secretary pursuant to 50 App. U.S.C. §

2403(b) and § 2404(c), "specifies the goods subject to export controls and

the group of countries to which exports of certain products are restricted.

By the use of code numbers and letters following products on the list, an

exporter can determine whether a particular shipment of goods requires a

validated license or not." United States v. Moller-Butcher, 560 F. Supp.

550, 552 (D. Mass. 1983); see 15 C.F.R. § 399.1.

}

‘

they had "significant strategic applications" posing a potential

threat to national security.

In November, because of their inability to obtain an

export license, the Spawrs canceled the second Soviet order.

However, in February 1977, they shipped mirrors to a freight

forwarder in Switzerland. Their agent then relabeled the boxes

containing the mirrors and forwarded the shipment to Moscow.

In 1980, the Spawrs were indicted for misrepresenting

shipment values in declarations submitted to the United States

Customs Service, a violation of 18 U.S.C. § 1001 ( Counts 1-

6); conspiracy to export laser mirrors without a required

license, a violation of 18 U.S.C. § 371 (Count 10); and

exporting laser mirrors ,without a required license, with

knowledge that they would be transshipped to the Soviet

Union, a violation of export administration regulations (Counts

7-9, 11-14).2 A fifteenth count was dismissed on the court's

motion.

After a jury tral, the corporation was convicted on all

charges (Counts 1-14), Walter was convicted on the conspiracy

and 1977 exporting charges (Counts 10-14), and Frances was

convicted on the misrepresentation, conspiracy, and 1977

2 Counts 7-5 relate to the 1976 exports filling the first Soviet order. They

charge violation of 15 C.F.R. § 371.2, 372.1(b), 387.6 and then § 6(b) of

the Export Administration Act of 1965, Pub. L. No. 91-184, 83 Stat. 841,

844 ("1969 Act") (formerly 50 App. U.S.C. § 2405(b)). Counts 11-14

relate to the 1977 exports filling the second Soviet order, which occurred

after the 1969 Act had expired and before it was reenacted by Pub. L. No.

95-52, 91 Stat. 235 (1977) (superseded by the Export Administration Act

of 1979, Pub. L. No. 96-72, 93 Stat. 533 ("1979 Act") (codified as

amended at 50 App. U.S.C. § 2401 et seq.)). They charge, in addition to

the aforementioned regulations and 15 C.F.R. § 387.1(a), violation of

Exec. Order No. 11940, 3 C.F.R. § 150 (1976) (revoked by Exec. Order

No. 12002, 3 C.F.R. § 133 (1977), reprinted in note to 50 App. U.S.C. §

2403, and § 5(b) of the Trading with the Enemy Act, ch. 106, 40 Stat.

411, 4, 5 (1918) (codified as amended at 50 App. U.S.C. § 5(b)), which

maintained the 1969 Act regulations in force until the 1969 Act could be

reenacted.

exporting charges (Counts 1-6, 10-14).3 The Spawrs appealed

their conviction on four grounds: that the export regulations

relied on by the government were defunct; that government

misconduct prejudiced their defense; that the trial court erred by

admitting co-conspirator statements lacking a proper evidentiary

foundation; and that the evidence was insufficient to support

their convictions. This court affirmed their convictions in

United States v. Spawr Optical Research, Inc. 685 F.2d 1076

(9th Cir. 1982), cert. denied, 461 U.S. 905 (1983).

In 1985, the Spawrs collaterally attacked their

convictions by filing a petition under 28 U.S.C. § 2255

requesting the district court to set aside their sentences on ten

new grounds not raised at trial or on appeal. The district court

denied its petition in its unpublished order filed October 9,

1986, because the Spawrs had not demonstrated that they had

cause for failing to raise their issues at trial or on appeal, or that

they had been prejudiced by the alleged trial defects.

The Spawrs then moved for reconsideration of the

district court's order denying the § 2255 petition. They moved

the district court to reconsider on two of the grounds relied on

in the petition: that they had ineffective assistance of counsel,

and that the prosecution withheld exonerating evidence in

violation of Brady. The Spawrs also filed an additional motion

alleging another instance of prosecutorial misconduct -- that the

prosecution intentionally provided the court with the wrong

CCL. The district court denied the Spawrs' motion in its

3The trial court sentenced the corporation to fines totalling $100,000, and

placed the corporation on probation for five years. Frances was given five

year suspended sentences on Counts 1-6 and 10-14, and placed on probation

for a period of five years. Her sentences ran concurrently. Walter was

given a five year sentence on Count 10, and ten year sentences on Counts

11-14. His sentences also ran concurrently. Walter was to serve the first

six months of his sentence in custody, and the remainder of the sentence

___was suspended. He was put on probation for a period of five years after the

expiration of his six months in custody.

unpublished order, filed July 21, 1987, for essentially the same

reasons as its earlier denial.4

On appeal, the Spawrs renew the three contentions of

trial error raised in their earlier motion to reconsider -- Brady

violations, the prosecution's knowing production of misleading

evidence, and ineffective assistance of counsel. The

government addresses the Spawrs' arguments and further

contends that this appeal should be dismissed for lack of

jurisdiction, for undue delay in filing § 2255 motion, and for

failure to assert claims at trial or on direct appeal. The district

court's denial of the Spawrs' § 2255 motion is reviewed de

novo. See United States v. Quan, 789 F.2d 711, 713 (9th Cir.

1986).

JURISDICTION

The government contends that the district court lacked

jurisdiction over the Spawrs' § 2255 motion because the

Spawrs are no longer in custody. We disagree.

The district court's jurisdiction over this motion is

measured at the time of filing. So long as the Spawrs were in

custody at that time, jurisdiction is present. See 16 Federal

Procedure § 41:15 at 328-29 (1983). The district court has

stated that the Spawrs were serving five year probationary

terms when they filed their §2255 motion. A probationary term

is sufficient custody to confer jurisdiction. See Wright v.

United States, 732 F. 2d 1048, 1050 n. 1 (2d Cir. 1984), cert.

denied, 469 U.S. 1106 (1985).

Apparently the government, believing that the Spawrs

were released from probation after filing, is actually making a

4Most of this background discussion is drawn from the district court's

unpublished Order Denying Section 2255 Petition, at p. 1 n. 1; the district

court's Order Denying Defendants’ Motion for Reconsideration of Order

Denying Section 2255 Motion, at pp. 1-3; and this court's opinion on

direct appeal, see Spawr, 685 F.2d at 1078-80 & nn. 1-6.

mootness argument. The district court rejected this contention,

relying primarily on Supreme Court authority, Lane v.

Williams, 455 U.S. 624 (1982); Sibron v. New York, 392

U.S. 40 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968);

and authority from this court, United States v. Hearst, 638

F.2d 1190 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981);

Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973).

We agree with the district court that this motion is not moot.

In Carafas, the court held that, so long as the adverse

consequences of a criminal conviction remain, a petition for a

writ of habeas corpus is not moot, even though the petitioner's

custody has expired since filing. 391 U.S. at 236-38. Shortly

thereafter, in Sibron, the Court reached a similar result. 392

U.S. at 50-58. In Lane, the Court found the petition at issue to

be moot. However, it did so on the ground that the petitioner,

who was no longer in custody, had challenged only the

sentence. The Court, citing Carafas and Sibron, emphasized

that the petitioner had challenged the conviction itself. 455 U.S.

at 630-33.5

[1] The Spawrs have raised a number of challenges to

their convictions (e.g. ineffective assistance of counsel). Thus,

the distinction identified in Lane is not an obstacle to the

remedy sought in this case. Moreover, it is evident that

collateral consequences of the Spawrs' convictions still remain.

For example, as the district court and the Spawrs have noted,

the Spawrs are unable to receive government contracts until

1991. It may also be true that direct consequences of the

convictions remain -- the Spawrs claim that their corporation

has not completed payment of its fine, and that their probation

terms have not expired ( the government has stated otherwise).

SThese Supreme Court decisions involved petitions for habeas corpus and

not § 2255 motions. Nevertheless, this court's decisions in Hearst, 638

F.2d at 1192 n. 1, and Courtney, 486 F.2d at 1109 n. 1, clearly establish

that Carafas and its progeny apply with equal force to § 2255 motions.

As a result, this § 2255 motion is still viable under Carafas and

Sibron.

As a final matter, the government requests this court to

dismiss the motion because of the Spawrs' delay in filing.

Rule 9 of the Rules Governing § 2255 Proceedings provides:

(a) Delayed motions. A motion for relief made

pursuant to these rules may be dismissed if it

appears that the government has been prejudiced

in its ability to respond to the motion by delay in

its filing unless the movant shows that it is

based on grounds of which he could not have

had knowledge by the exercise of reasonable

diligence before the circumstances prejudicial to

the government occurred.

However, it should be emphasized that the government must

first make a show of prejudice. See 16 Federal Procedure §

41:507 at 594 (1983). Beyond its request for dismissal due to

delay, the government makes no showing or prejudice.

Therefore, its request is dered.

PROCEDURAL DEFAULT

The government also contends that the Spawrs' § 2255

motion should be dismissed because the issues presented were

not raised at trial or on direct appeal. It maintains that under

United States v. Frady, 456 U.S. 152, 167 (1982), the Spawrs

must show "cause" to excuse their procedural default and

"actual prejudice” from the alleged tral errors. The government

claims that the Spawrs have done neither.

In Sunal v. Large , 332 U.S. 174 (1947), the Supreme

Court capsulated the law concerning the availability of habeas

relief in the face of such procedural defaults. The Court first

stated the general rule that "the writ of habeas corpus will not

be allowed to do service for an appeal.” /d. at 178. The Court

then acknowledged an exception for errors of constitutional

magnitude as opposed to mere errors of law and procedure. /d.

at 178-79. However, the Court limited this "constitutional"

exception to exceptional circumstances for which no reasonable

alternative to habeas existed for their correction. Jd at 179-80,

183-84.

Years after § 2255 was enacted, the Court decided

Kaufman v. United States, 394 U.S. 217 (1969). In

Kaufman, the Court generally reaffirmed the principles set out

in Sunal. But it stated that constitutional claims should not be

denied solely because they should have been raised on appeal.

Id. at 223-24. Whereas the Court imposed no requirement on

petitioners to show cause and prejudice, it implied that

constitutional claims should not be decided when direct appeal

procedures were deliberately bypassed. Jd. at 220 n. 3.

In Davis v. United States, 411 U.S. 233 (1973), the

Court once again affirmed the foregoing principles with one

exception. It distisguished Kaufman and carved out a class of

constitutional claims that would not be so readily decided

initially on a § 2255 motion. These claims are those that run

afoul of express waiver provisions such as Fed. R. of Crim. P.

12(b)(2)(objections to indictment waived unless raised by

motion before trial). The Davis court restricted the judicial

discretion to be exercised in these § 2255 cases by requiring the

petitioner to show "cause and prejudice." 411 U.S. at 243-

245.

This same standard was applied to a claim that ran afoul

of Fed. R. of Crim. P. 30 (objections to jury charge waived

unless raised before jury retires). See Frady, 456 U.S. at 167-

68. In reaffirming Davis, the Frady Court did not expressly

overrule Kaufman (nor did it have reason to). The Court has

not modified its position further.

[2] In this case, each of the Spawrs' claims is

constitutionally based, either on the Fifth or Sixth Amendment.

ee ees

;

Thus, the general rule that claims cannot be raised initially in a

§ 2255 motion is inapplicable. The question becomes whether

these claims fall under the "cause and prejudice” rule of Davis

and Frady.

[3] We find that we need not resolve this question.

Assuming that "cause and prejudice” are not threshold barriers

to the Spawrs' motion by virtue of Davis and Frady, showings

of materiality or prejudice are nonetheless required before relief

can be granted on claims of prosecutorial misconduct and

ineffective assistance of counsel. As we discuss below, the

Spawrs are unable to meet even the slightest burden of showing

‘the materiality of the alleged trial defects, or the prejudice

caused thereby, because the issue to which each of their claims

relate was not a disputable issue in their criminal trial.

Sin order to establish a Brady violation, the defense must show that the

exculpatory evidence suppressed by the government was material; that is,

"had the evidence been disclosed to the defense, the result of the proceeding

would have been different." United States v. Bagley, 473 U.S. 657, 682

(1985) (plurality). Before the prosecution's knowing proffer of misleading

evidence will result in a new trial, the materiality of that evidence must

also be established. "A new trial is in order if there is any reasonable

likelihood that the false [evidence] could have affected the judgment of the

jury.” United States v. Polizz, 801 F.2d 1543, 1550 (9th Cir. 1986). And

prejudice is a necessary element of a claim of ineffective assistance of

counsel. In most cases, the prejudice requirement can only be met if "there

is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland v.

Washington, 466 U.S. 668, 694 (1984). The Strickland standard for

prejudice has been considered to impose virtually the same burden on the

defense as the standard for materiality in Brady claims. See Bagley, 473

U.S. at 682. The burden on the defense in claims of knowing production

of false evidence, however, is less imposing, akin to the harmless error

standard which requires the government to show immateriality. See

Bagley, 473 U.S. at 679-80 n. 5.

10a

MATERIALITY

[4] The first of the Spawrs' claims is based on the

government's duty to disclose to the defense material of an

exculpatory nature. See Brady, 373 U.S. at 87. The Spawrs

contend that the government knowingly suppressed testimony

of a laser mirror expert and an Air Force Colonel. They argue

that had this testimony not been suppressed, it "would have

established that the mirrors exported by the Spawrs were not on

the Commodity Control List and did not require an export

license.”

The second claim is based on another allegation of

prosecutorial misconduct. The Spawrs assert that during the

course of the trial, the government knowingly provided the

court with an incorrect CCL. Had the correct version been

provided, they maintain, the court would have instructed the

jury differently as to the presence of the Spawrs' mirrors on the

CCL.

The third and last claim alleges ineffective assistance of

counsel. The record clearly reveals that the Spawrs' entire

dissatisfaction with counsel relates to the licensing issue. The

Spawrs argue that counsel failed to secure relevant expert

testimony on the question of whether their mirrors were

included on the CCL, and that counsel failed to detect the

recurring instances of prosecutorial misconduct.

[5] These three claims relate entirely to a single issue:

whether the Spawrs' mirrors were included on the CCL and

therefore required an export license. The claims can only be

material if this licensing issue was in controversy during trial.

If the issue was not in controversy, the Spawrs would hardly

be entitled to relief based on the prosecutor's misconduct

regarding evidence probative of that issue or defense counsel's

failure to detect such misconduct.

ideo

lla

In its denial of this § 2255 motion, the district court

held that the Spawrs' claims were not material because the

question of whether the Spawrs' mirrors were included on the

CCL was not a triable issue. It stated that the executive branch,

rather than a jury, is empowered to determine which

commodities require export licenses; and in this case, the

Secretary had determined that the Spawrs' mirrors were subject

to the license requirement. The Spawrs now vigorously contest

the district court's holding.

The Spawrs do not challenge the conclusion reached in

Moller v. Butcher, 560 F. Supp. at 552-54, that the Secretary

has the final word, in the setting of a criminal trial, in

determining which items should be included on the CCL at any

given time. Rather, they challenge the district court's decision

to defer to the Secretary's determination that their mirrors were

included on the CCL when they applied for an export license.

They maintain that this latter determination impacts on an

element of the charged offenses; and therefore, due process and

the right to a trial by jury preclude deference to the Secretary.

As a consequence, the Spawrs argue that a jury (or perhaps a

judge) should be permitted to evaluate the evidence and reach a

conclusion contrary to that of the Secretary. We disagree.

It is beyond dispute that the export of commodities is a

major component in the economic condition of the United

States. In addition, the export of certain commodities may have

a Significant impact on United States' foreign policy and

national security. See 50 App. U.S.C. § 2402. The enactment

of the 1969 Act and later the 1979 Act, as well as the

promulgation thereunder of a complex scheme of regulations, is

a testament to the important and sensitive nature of the export

function.

In this context, we cannot construe the 1969 Act or its

regulations to accommodate judicial factfinding on intricate

licensing questions. Congress had designated the Secretary as

the coordinating official in the area of export administration. It

12a

would severely undermine the Secretary's authority if judges

and juries in individual criminal proceedings were permitted to

reverse licensing determinations. And it would convert the

judicial system into a policy-making forum, one in which the

judiciary possess significantly less expertise and resources than

the Secretary. Congress did not intend this chaotic and

potentially dangerous result.

This is evident in Congress’ decision to exempt the

Secretary's determinations under the 1969 Act from the judicial

review provisions of the Administration Procedure Act. See §

8, 1969 Act (current version codified at 50 App. U.S.C. §

2412(a)); see also § 13(e), 1979 Act (added by amendment,

Pub. L. No. 99-64, § 114, 99 Stat. 120, 151-52 (1985),

codified at 50 App. U.S.C. § 2413(e)) ("The Secretary's

written [license denial] shall be final and is not subject to

judicial review."). It is also evident in the language of the two

statutory provisions which the exporting counts charged the

Spawrs with violating. See Former 50 App. U.S.C. § 2405(b)

(relative to the 1976 exports), and 50 App. U.S.C. § 5(b)

(relative to the 1977 exports). These provisions make it a crime

to violate not only the particular statute or its regulations, but

also any license or order issued thereunder. Thus, when the

Secretary has issued a license or order, the factfinder is

instructed to accept it as law, without considering its

advisability.

[6] In this case, the Secretary has determined that the

Spawrs' mirrors could not be exported without an export

license. Right or wrong, the trial court must accept this

determination as a matter of law. The government need not

establish independently at trial, as an element of the charged

offenses beyond a reasonable doubt, that the Spawrs' mirrors

were included on the CCL and therefore subject to the licensing

requirement. Because the licensing issue was not an element of

the charged offenses, the Spawrs are not denied due process or

the right to a jury trial by deference to the Secretary's

13a

determination. Rather, given the Secretary's determination, the

prosecution must prove only that the Spawrs exported their

mirrors without the necessary license and with the appropriate

mental state.

At trial, the district court admitted some government

testimony and instructed the jury on matters relating to the

licensing issue. It is therefore arguable that the district court

originally considered this a triable issue. However, because we

hold that the need for an export license had already been

established conclusively by the Secretary, it was harmless to

place this issue before the jury.

CONCLUSION

In the absence of any controversy surrounding this

issue, the Spawrs' dependent claims of prosecutorial

misconduct and ineffective assistance of counsel are immaterial

and non-prejudicial.

Accordingly, the district court's judgment denying the

Spawrs' § 2255 motion is affirmed.

AFFIRMED.

HARRY PREGERSON, Circuit Judge, dissenting:

I agree with the majority that the Secretary of

Commerce's decision to place a commodity on the Commodity

Control List ("CCL") is not subject to judicial review. I

disazree, however, with the unwarranted conclusion that the

majority draws from this initial proposition, to wit: that at a

criminal trial the Secretary's factual determination that a

commodity had been placed on the CCL is conclusive and thus

is not a question for the jury to determine. The authorities cited

l4a

by the majority support the initial proposition, but not the

conclusion drawn from it.

The majority cites two statutory grounds for its reading

of the Act. First, Congress exempted the Secretary's decision

to place a commodity on the CCL from the judicial review

provisions of the Administrative Procedure Act ("APA"). See

§ 8, Export Administration Act of 1969, reprinted in U.S.

CODE CONG. & ADMIN. NEWS 943 (current version

codified at 50 App. U.S.C. § 2412(a)) (excluding the functions

exercised under the Export Administration Act from the

operation of the APA's judicial review provisions, 5 U.S.C. §§

701-706). Section 704 of the APA provides for judicial review

of agency action. The Spawrs are not challenging the

Secretary's initial decision to place their commodity on the

CCL. What the Spawrs are challenging at their criminal trial is

whether their product meets the description of an item

previously placed on the CCL by the Secretary.

Second, two of the statutory provisions under which

the Spawrs are charged make it a crime to violate any license or

order issued by the Secretary. See Former 50 App. U.S.C. §

2405(b) and 50 App. U.S.C. § 5(b). Again these provisions

address actions by the Secretary (i.e., placing commodities on

the CCL or issuing or refusing to issue an export license)

occurring before an alleged criminal violation of the Act

occurred. These provisions offer no support for the majority's

position that in a criminal trial the factfinder is precluded from

determining whether a commodity was in fact listed on the CCL

at the time of the alleged criminal violation.

The majority's reliance on United States v. Moller-

Butcher, 560 F. Supp. 550 (D. Mass. 1983) is similarly

misplaced. The district court in Moller-Butcher makes clear the

distinction between judicial review of (1) whether the Secretary

actually did place a commodity on ihe CCL - a question of fact -

and (2) whether the Secretary should have placed a commodity

on the list - a questions of advisability:

1Sa

Defendants contend that the grand jury must

allege and the government must prove not only

that the particular goods that defendants are

accused of exporting without a license are listed

on the CCL, but also that they fall within the

category of goods which make a significant

contribution to another country.

Moller-Butcher, 560 F. Supp. at 552. In making this

distinction, the district court in Moller-Butcher, contrary to the

majority's position, appears to assume that the first question,

whether particular commodities are on the CCL, is a question

for the jury. In any event, the holding in Moller-Butcher goes

to whether the Secretary "has the ultimate authority to decide

which goods are included on the list and how they are

classified," id., and not whether the goods were in fact on the

CCL.

The majority concludes that "when the Secretary has

issued a license or order, the factfinder is instructed to accept it

as law, without considering its advisability." Majority opinion

at page 15770 (emphasis added). Assuming arguendo that this

conclusion is a correct reading of the Act, it still does not

follow that at a criminal trial the Secretary's determination that a

commodity had been placed on the CCL must, as a matter of

law, be accepted by the jury. Placing this question before the

jury does not challenge the advisability of the Secretary's initial

decision to list a commodity on the CCL. Therefore, requiring

the government to prove at a criminal trial that the Spawrs' laser

mirror was on the CCL at the relevant time would not

"undermine the Secretary's authority" because such a

requirement in no way challenges the Secretary's initial

decision to place commodities on the CCL and to issue or

refuse to issue licenses accordingly.

15a

In addition to its lack of support in the text of the Act, in

its legislative history, and in the-case law interpreting it, the

majority's reading of the Act also suffers from constitutional

infirmities. The Fifth Amendment right to due process and the

Sixth Amendment guarantee of a criminal defendant's right to

trial by jury require not only that the government prove every

element of a criminal offense beyond a reasonable doubt but

also that each element be submitted to an impartial trier of fact.

See In Re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073

(1970) (“Lest there remain any doubt about the constitutional

stature of the reasonable-doubt standard, we explicitly hold that

the Due Process Clause protects the accused against conviction

except upon proof beyend a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.");

see also Sandstrom v. Montana 442 U.S. 510, 521-22, 99 S.

Ct. 2450, 2458 (1979) (conclusive presumption conflicts with

the overriding presumption of innocence and would invade the

factfinding function assigned solely to the jury in a criminal

case) (citing Morissette v. United States, 342 U.S. 246 (1952),

and United States v. United States Gypsum Co., 438 U.S. 422

(1978)). Whether the laser mirrors exported by the Spawrs

were in fact on the CCL at the time they were exported is an

essential element of the offenses allegedly committed by them.

It was for the jury, not the Secretary of Commerce, to

determine whether the Spawrs' laser mirrors were in fact an

item listed on the CCL.

Accordingly, I respectfully dissent.

17a

APPENDIX B

United States District Court

Central District of California

United States of America,

Plaintiff,

Spawr Optical Research, Inc.,

Walter J. Spawr and Frances

Spawr,

Defendants.

)

) CV 85-3193-WMB

) CR 80-789-WMB

)

) ORDER DENYING

) DEFENDANTS'

) MOTION FOR RE-

) CONSIDERATION

) OF ORDER

) DENYING SECTION

) 2255 MOTION

)

I. FACTS

Walter and Frances Spawr, and their corporation,

Spawr Optical Research, Inc. (the Spawrs) were convicted of

exporting laser mirrors destined for the Soviet Union without

obtaining the required validated export license. The Spawrs

appealed their convictions on the basis of four grounds: that

the export regulations relied on by the goverment were defunct;

that government misconduct prejudiced their defense; that the

trial court erred by admitting co-conspirator statements lacking

a proper evidentiary foundation; and that the evidence was

insufficient to support their convictions. The Ninth Circuit

affirmed their convictions in United States v. Spawr Optical

Research, Inc., 685 F.2d 1076 (1982), cert. denied, 461 U.S.

905, 103 S. Ct. 1875 (1983).

18a

The Spawrs collaterally attacked their convictions by

filing a petition under 28 U.S.C. section 2255 requesting the

Court to set aside their sentences on ten new grounds not raised

at trial or on appeal. The Spawrs asserted that the indictment

failed to charge a crime with respect to the exportation of laser

mirrors, the Court imposed a sentence in excess of that

provided by statute, the Court lacked jurisdiction, the jury

instructions were improper, double jeopardy had been violated,

the prosecution withheld exonerating evidence, the convictions

were obtained by use of a coerced confession, the jury was

unconstitutionally selected, they were deprived of their right to

question witnesses, and they had ineffective assistance of

counsel. The court denied the petition in its order filed October

9, 1986, because the Spawrs had not demonstrated that they

had "cause" for failing to raise these issues at trial or on appeal,

or that they had been prejudiced by their failure to do so.

The Spawrs now move for reconsideration of the

Court's order denying the section 2255 petition. They move

the Court to reconsider two of the grounds relied on in the

petition: that they had ineffective assistance of counsel, and that

the prosecution withheld exonerating evidence. The Spawrs

also have filed an additional motion for leave to file a

supplemental memorandum in support of the motion, alleging

another instance of prosecutorial misconduct -- that the

prosecution intentionally provided the Court with the wrong list

of commodities prohibited from export.

The Court denies the motion to reconsider and its

supplement on the merits.

II. DISCUSSION

Local Rule 7.16 sets forth three grounds for which a

court may reconsider a motion: "(a) a material difference in fact

or law from that presented to the Court before such decision

that in the exercise of reasonable diligence could not have been

poe yee ae

FTN NK, 5A a OR be » te

19a

known to the party moving for reconsideration at the time of

such decision, or (b) the emergence of new material facts or a

change of law occurring after the time of such decision, or (c) a

manifest showing of a failure to consider material facts

presented to the Court before such decision." The Rule states

that "[n]o motion for reconsideration shall in any matter repeat

any oral or written argument made in support of or in

opposition to the original motion." Although not expressly

stated, from their arguments it appears that the defendants

request reconsideration under subsection (a) or (b). Giving the

defendants the benefit of every doubt, the Court will assume

that defendants have presented sufficient grounds to justify

consideration of the merits of their instant motion.

In order to obtain collateral relief under section 2255

based on trial errors to which counsel made no

contemporaneous objection, a convicted defendant must show

“cause” for the double procedural default and "actual prejudice”

resulting from the errors. United States v. Frady, 456 U.S.

152, 102 S. Ct. 1584 (1982).

A. Ineffective assistance of counsel -- the cause

requirement

The Spawrs implicitly rely on the same argument the

Court considered in its original order, that the ineffectiveness of

their counsel constitutes "cause" for their failure to object to the

alleged errors. The courts agree that constitutionally ineffective

assistance of counsel constitutes cause, but they diverge as to

whether some lesser level of attorney negligence will suffice in

some circumstances. Compare Tsirizotakis v. LeFevre, 736

F.2d 57 (2d Cir. 1984), cert. denied, 105 S. Ct. 216 (1984)

(no "cause" shown where petitioner failed to show deprivation

of Sixth Amendment right ); with Collins v. Auger, 577 F.2d

1107, 1110 n.2 (8th Cir. 1978), cert. denied, 439 U.S. 1133,

20a

99 S. Ct. 1057 (1979) (inadvertance of counsel may constitute

“cause” for procedural default). .

To show ineffective assistance of counsel, Garrison v.

McCarthy, 653 F.2d 374 (9th Cir. 1981) holds that when

counsel makes a tactical decision not to object to errors of the

trial court, the convicted defendant must establish that his

counsel's performance constituted a deprivation of his Sixth

Amendment right. If instead the error is based on counsel's

inadvertance or ignorance, "a lesser showing of incompetency

of counsel should be sufficient for 'cause’." Jd. at 378.

However, the Garrison court did not address what lesser level

of incompetence would be sufficient to constitute "cause"

where counsel's failure to raise the issue in the original

proceeding is unintentional.

To establish a Sixth Amendment deprivation, it must be

shown that "counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be

relied on as having produced a just result." Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064

(1984). Counsel's conduct must fall below an objective

standard of reasonableness. 466 U.S. at 688, 104 S. Ct. at

2064. Counsel's conduct must also be prejudicial, that is, it

must be shown that "but for counsel's unprofessional errors,

the result of the proceeding would have been different." 466

U.S. at 694, 104 S. Ct. at 2068.

If counsel's errors were the result of inadvertence or

ignorance, the Court must decide whether counsel's

performance was so deficient as to justify raising these matters

collaterally.

In either case, whether counsel's conduct is analyzed

under the Sixth Amendment or the "inadvertence or ignorance"

standard, the Court necessarily assesses the merits of the

petition. If the challenge is meritless, no prejudice for the

failure to raise it can result, and counsel's failure to do so,

because of tactics, inadvertence or ignorance, cannot be viewed

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as unreasonable or incompetent. If the challenge is

meritorious, competent counsel would have made it, absent

equaliy promising alternatives or countervailing considerations.

The Court notes, as it did in the original order, that it is not

enough to argue that the necessity of the petition itself

demonstrates inadvertence or ignorance sufficient to constitute

"cause." Whatever lesser degree of incompetence is necessary

to constitute "cause" under the second standard, more must be

shown than the mere necessity of the petition.

Defendants argue that their counsel's performance was

incompetent at all points of the case -- pretrial, trial, and post-

trial.

B. Failure to develop exculpatory expert testimony

Defendants first assert that they provided defense

counsel Mr. William Dougherty with the names of twenty-four

expert witnesses to obtain expert testimony that the device they

exported was not on the Commodity Control List (List) of the

Export Administration Act (Act) and had been freely exported

since 1970. Defendants assert that a few days before trial,

Dougherty falsely claimed that he had interviewed each of these

experts and insisted that their testimony would not be helpful.

Second, defendants argue that their counsel interviewed

only Dr. Peter Franken before trial and during trial neglected to

adduce Dr. Franken's background as Chairman of the U.S. Air

Force Adversary Group on Satellite Survivability from 1973-

1983 and his testimony that the defendants’ equipment was not

and should not have been on the List, and in fact was in

widespread use.

Third, Colonel Ted Saito, the Air Force officer in

charge of approving transfer of laser mirror technology to

foreign nations, conferred with Mr. Spawr and agreed to testify

at the trial. When Colonel Saito did not appear at trial,

Dougherty falsely stated that he had contacted him, but that he

22a

now refused to testify. Colonel Saito has filed a declaration

stating that he was never contaeted by Dougherty and that his

calls to Dougherty were not returned. Defendants assert that

the testimony of both of these two was crucial to their defense

that the device was not regulated by the Act. They point out

that if the device is not on the List, then a license to export is

not required and exportation without a license does not

constitute a criminal violation.

It is not clear whether Mr. Dougherty made a tactical

decision that the expert testimony would not be useful and

therefore decided not to follow Mr. Spawr's apparent requests,

or whether Mr. Dougherty simply neglected to investigate these

witnesses and subsequently tried to cover himself by claiming

that he had. In either case, the Court does not believe that its

original conclusion should be disturbed. Again, the Court does

not find that Mr. Dougherty's representation was performed in

a manner so inadequate that defendants have shown "cause" to

raise these issues collaterally.

Even if defendants were able to establish "cause," they

have not suffered actual prejudice. The Court has already held

that "the executive branch determines which items or

information must be regulated to effectuate the many domestic

and international policies enumerated in the Act.” The Court

believes that the expert testimony taken on the question whether

the Spawrs' laser mirrors were in fact on the List was more

than sufficient for the Court to make its determination. The

government correctly notes that nothing in the declarations of

Dr. Franken or Colonel Saito changes the basic principle that it

is the function of the executive branch, not that of the proffered

experts, to determine the licensability of commodities in general

and the Spawrs' laser mirrors in particular. Whether the device

is not on the List, or should be on the List , were not questions

which went to jury. Consequently, the expert testimony the

Spawrs proffer here would have had no appreciable effect on

the outcome of the case.

Py ee ee ene Sete Se

23a

C. Prosecutorial misconduct

If sufficiently severe, prosecutorial misconduct may

deny a defendant a fair trial and thereby justify either the

dismissal of the indictment or the order of a new trial. United

States v. Samango, 607 F.2d 877, 884-5 (9th Cir. 1979).

Here, the Spawrs must not only show that the prosecutorial

misconduct occurred, but also "cause" for not raising the issue

at trial or on appeal and actual prejudice from the failure to do

so. On appeal, the Spawrs alleged three instances of

misconduct: a failure to return some exculpatory documentary

evidence provided pursuant to government subpoenas, an

impermissable interference with a defense witness, and a

televised interview of the prosecutor where he generally

discussed the case.

(a) Suppression of exculpatory evidence

Defendants now point to two additional alleged acts of

prosecutorial misconduct involving suppression of exculpatory

evidence. First, Mr. Wu, the Assistant U.S. Attorney who

prosecuted the case, interviewed Professor Allen E. Hill as a

prospective expert witness. He put Mr. Wu on notice that the

only laser related items that were on the List were items that

possess or can be adapted or redesigned and upscaled to

possess weapons grade capability -- a capability the Spawrs

claim their equipment does not possess. Defendants claim that

Mr. Wu did not turn this information over to the defendants but

instead called technical witnesses at trial whose testimony

obfuscated the difference between "advance gas flow"

technology which is on the List and the technology employed in

the Spawrs' laser mirror. Second, defendants assert that Mr.

Wu subpoenaed Dr. Franken who also stated that the Spawrs'

laser mirror is not on the List, but Mr. Wu failed to turn over

24a

this information to the defendants. Thus, defendants argue that

in both instances, Mr. Wu suppressed exculpatory evidence.

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963), the suppression by the prosecution of exculpatory

evidence violates due process of law where the evidence is

material to guilt or punishment, regardless of the good faith or

bad faith of the prosecution.

Even if the defendants could show "cause" for not

having raised these grounds earlier on appeal with the other

grounds for prosecutorial conduct, a showing the Court

believes they fail to make, the Court finds that because the

expert witness testimony of Professor Hill and Dr. Franken

cannot be properly viewed as exculpatory evidence, the

prosecutor's obligation under Brady was not triggered.

Consequently, Mr. Wu's actions cannot be viewed as

misconduct. This proposed expert testimony cannot be

couusidered exculpatory because both of the experts’ opinions

go to the question of whether the Spawrs' laser mirrors are on

the List. Defendants admit as much when they point to the

opinions of these two experts and argue that the real issue in

this case is whether the device was in fact on the List. As the

Court has stated before, however, the executive branch, not the

experts, determines whether a commodity is on the List. The

issue is not one which goes to the jury; hence, further expert

testimony would have been of little use to the defendants

because the Court believes that it had more than adequate

testimony before it to render its decision. Thus, it cannot be

said that defendants have suffered any actual prejudice because

this evidence was not before the Court. These grounds are

insufficient for the relief defendants request.

(b) Intentional misrepresentation to the Court

Defendants assert that the prosecution intentionally

submitted the wrong List to the Court, and the Court failed to

25a

detect the deception and consequently relied on the wrong List

in formulating the jury instructions. Specifically, defendants

assert that the prosecution did not submit the correct List found

at 15 C.F.R. 399.1, but a list known officially as

"Interpretation 29," found at 15 C.F.R. 399.2. Interpretation

29 sets forth the "general industrial equipment" for which a

validated license is required for export to Libya, Cuba,

Kampuchea, North Korea and Vietnam.

After reviewing the transcript and the two lists that the

defendants have submitted, Interpretation 29 and the correct

List, it is the Court's recollection that the prosecution submitted

both lists. Thus, while Interpretation 29 may have been

extraneous material, the Court did have the correct List before

it. Moreover, the correctness of the jury instructions was

reviewable on appeal.

Like defendants’ other allegations of prosecutorial

misconduct, even if defendants could show "cause" for not

having raised these grounds earlier, a showing they failed to

make, they suffered no prejudice from the alleged

misrepresentation. Dougherty's failure to object to

Interpretation 29 cannot in any way be viewed as prejudicial.

Finally, defendants have submitted no evidence which shows

that the prosecution intended to mislead the Court. This ground

is therefore insufficient for the relief defendants request.

D. Failure to file the Court's order timely.

Finally, defendants assert that Mr. Dougherty failed to

file on time the Court's order allowing Mr. Spawr to serve his

sentence in a halfway house rather than in a pentitentiary [sic].

As a result, the order was not honored and Mr. Spawr was

incarcerated at Boron Federal Prison.

Mr. Dougherty's failure does not provide grounds

under section 2255 for setting aside the defendants’ sentences.

26a

Dated: July 28, 1987

/s/

Wm. Matthew Byrne, Jr.

United States District Judge

Ratee

27a

APPENDIX C

United States Court of Appeals

For the Ninth Circuit

United States of America, ) No. 87-6272

Plaintiff-Appellee )

) DC Nos.

v. ) CR-80-0789-WMB

) and

Spawr Optical Research, Inc. ) CR-85-3193-WMB

Walter J. Spawr, and )

Frances Spawr, )

)

Defendants-Appellants OPINION

BEFORE: PREGERSON, WIGGINS, and BRUNETTI,

Circuit Judges

Judge Wiggins and Judge Brunetti have voted to deny

the petition for rehearing and to reject the suggestion for a

rehearing en banc. Judge Pregerson has voted to grant the

petition for rehearing and allow the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for en

banc rehearing, and no judge of the court has requested a vote

on the suggestion for rehearing en banc. Fed. R. App. P.

35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

28a

APPENDIX D

TITLE 50, APPENDIX - WAR AND NATIONAL

DEFENSE

§§ 2401 - 2413

EXPORT REGULATION

PUB. L. 91-184, DEC. 30, 1969, 83 STAT. 841

* * *

§ 2403. Authority to effectuate policy

* * *

(b) Presidential determinations; rules and

regulations; allocation of export licenses; export

decontrol, investigation; Presidential removal of

unilateral export controls; priority to controls; report

to President and Congress

(1) To effectuate the policies set forth in section 3 of this

Act [section 2402 of this Appendix], the President may prohibit

or curtail the exportation from the United States, its territories

and possessions, of any articles, materials, or supplies,

including technical data or any other information, except under

such rules and regulations as he shall prescribe. To the extent

necessary to achieve effective enforcement of this Act [sections

2401 to 2413 of this Appendix], these rules and regulations

may apply to the financing, transporting, and other servicing of

exports and the participation therein by any person. Rules and

regulations may provide for denial of any request or application

for authority to export articles, materials, or supplies, including

technical data, or any other information, from the United

States, its territories and possessions, to any nation or

29a

combination of nations threatening the national security of the

United States if the President determines that their export would

prove detrimental to the national security of the United States,

regardless of their availability from nations other than any

nation or combination of nations threatening the national

security of the United States, but whenever export licenses are

required on the ground that considerations of national security

override considerations of foreign availability, the reasons for

so doing shal! be reported to the Congress in the quarterly

report following the decision to require such licenses on that

ground to the extent considerations of national security and

foreign policy permit.

(2) . . . Notwithstanding the provisions of paragraph (1),

the President shall remove unilateral export controls on the

export from the United States of articles, materials, or supplies,

inciuding technical data or other information, which he

determines are available without restriction from sources

outside the United States in significant quantities and

comparable in quality to those produced in the United States,

except that any such control may remain in effect if the

President determines that adequate evidence has been presented

to him demonstrating that the absence of such a control would

prove detrimental to the national security of the United States.

The nature of such evidence shall be included in the special

report required by paragraph (4).

* * *

(d) Necessity of authorization or permission to

export

Nothing in this Act [sections 2401 to 2413 of this

Appendix] or the rules or regulations hereunder shall be

30a

construed to require authority or permission to export, except

where required by the President to effect the policies set forth in

section 3 of this Act [section 2402 of this Appendix].

* * *

§ 2405. Violations and Penalties.

(a) Generally; subsequent offenses

Except as provided in subsection (b) of this section,

whoever knowingly violates any provision of this Act [sections

2401 to 2413 of this Appendix] or any other regulation, order,

or license issued thereunder shall be fined not more than

$10,000 or imprisoned not more than one year, or both. For a

second or subsequent offense, the offender shall be fined not

more than three times the value of the exports involved or

$20,000, whichever is greater, or imprisoned not move than

five years, or both.

(b) Export to Communist-dominated nations;

penalties

Whoever willfully exports anything contrary to any

provision of this Act [sections 2401 to 2413 of this Appendix]

or any regulation, order or license issued thereunder, with

knowledge that such exports will be used for the benefit of any

Communist-dominated nation, shall be fined not more than five

times the value of the exports involved or $20,000, whichever

is greater, or imprisoned not more than five years, or both.

* * *

3la

§ 2407. Exemption from administrative procedure

and judicial review provisions.

The functions exercised under this Act [sections 2401 to

2413 of this Appendix] are excluded from the operation of

sections 551, 553-559, and 701-706, of title 5 United States

Code.

x * *

32a

APPENDIX E

iS C.F.R. 399.1

Commodity Control List-399.1 7299(23) - 7299(27) CCL-61

| 611 || QSTVWYZ || 500 || 500 || O||R

. 7299(25)A Lasers, n.e.c., except (a) argon, krypton,

and dye lasers with both of the following characteristics: (i) an

output wavelength shorter than 0.8 microns, and (ii) a pulsed

output not exceeding 0.5 joule per pulse and an average or

continuous wave maximum rated output power not exceeding

20 watts; (b) helium-cadmium and nitrogen lasers with both of

the following characteristics: (i) an output wavelength shorter

than 0.8 microns, and (ii) a pulsed output not exceeding 0.5

joule per pulse and an average or continuous wave maximum

rated output power not exceeding 120 watts; (c) helium-neon

lasers with an output wavelength shorter than 0.8 microns; (d)

ruby-lasers with both of the following characteristics: (i) an

output wavelength shorter than 0.8 microns, and (ii) an energy

output not exceeding 2 joules per pulse; (e) CO> lasers with all

of the following characteristics: (i) an output wavelength in the

range of 9 to 11 microns, (ii) a pulsed output not exceeding 2

joules per pulse and an average or continuous wave maximum

rated output power not exceeding 1,200 watts, and (iii) in

which the beam, electrical excitation, and gas flow, if any, are

in the same direction, or those using the TEA (transverse

excitation atmospheric) principle for excitation; and (f)

Nd:YAG and Nd: Glass lasers with both of the following

characteristics: (i) an output wavelength of 1.06 microns, and

(ii) a pulsed output not exceeding 0.5 joule per pulse and an

average or continuous wave maximum rated output power not

exceeding 10 watts; and specially designed parts and

accessories, n.e.c. (Specify by name and model number.)

33a

APPENDIX F

15 C.F.R. 399.2

Interpretation 29: General Industrial Equipment

The commodities listed below require a validated license for

export to Country Groups S and Z.

General industrial equipment and parts therefor, n.e.s. the

following only:

Abrasive circulators

Abrasive-coating

Accumulators, hydraulic

Aerators

Agricultural machines and appliances, n.e.s.

Airconditioning machines, n.e.s.

Air or gas compressors, n.e.s.!

Air heaters, portable, fuel, fired, n.e.s.

Armature winding

Assembling fixtures, production, except for production of

military equipment

Basket-making

Battery-making

Binoculars and telescopes, including astronomical

telescopes, n.e.s.

Bituminous pavers, finishers, and spreaders

Blenders

1 A validated license is required for this equipment and any equipment

utilized in the exploration for, production of, transmission of, or

transportation of petroleum or natural gas, or refining of petroleum or

natural gas for energy usage, excluding petrochemical feedstock , as well as

specially designed parts and accessories therefor, to the USSR,

Afghanistan, Estonia, Latvia, and Lithuania.

October 1, 1982 Export Administration Regulations

34a

Boiler room specialty tools

Bottling, canning, cleaning, dishwashing, filling,

packaging, and sealing machines, n.e.s.

Broom-making

Brush-making

Button covering

Button-making

Cable-making, n.e.s.

Cable spinning

Calendering machines and similar rolling machines, n.e.s.

Candle making

Carpet sweepers, hand

Cattle stunners

Centrifuges, filtering, and purifying machines for

liquids, air, and gases, n.e.s.

Cigarette and cigar making and other tobacco processing

Clay guns

Cleaners, ultrasonic, n.e.s.

Cleaning equipment, n.e.s., for magnetic tape and

other recording media

Cleaning units, sack

Coil winding for electrical components

Coiling, flexible casing or flexible tube

Color mixing and dispensing

Concrete pavers, finishers, and spreaders

Coolers, evaporative type

Cordage making

Cranes, n.e.s., nonmilitary

Creosoting, wood products

Dehumidifiers, non-freezing

Diving bells or suits, mechanically equipped

Drawing, marking out, calculating, drafting,

measuring, and checking appliances and machines,

mechanical, nonelectric, or nonelectronic, n.e.s.

Environmental chambers, n.e.s.

Excavating, leveling, mining, oilwell drilling, well

drilling, construction, and maintenance equipment, n.e.s.!

Fans and blowers, n.e.s.

Fermentors

Filament winding, n.e.s.

Filters, ferro-magnetic

35a

Flame arrestors

Floor finishers, sanders, scrubbers, and surfacers, industrial

type

Fluorescent disposal units

Food processing machines

Freeze dryers

Fumigation chambers

Fur-blowing

Fur-treating

Garbage grinders, commercial and industrial

Gas operated welding, cutting, brazing, and suriace tempering

machines and appliances, n.e.s.

Gas or liquid supply meters, n.e.s.!

Gas turbine engines, n.e.s.!

Glass working machines, n.e.s.

Grinders and crushers, laboratory

Hand tools, n.e.s.

Hat-blocking and hat-making

Homogenizers, laboratory

Humidifiers, air

Ice breakers

Ice-crusher slingers

Ice saw and drill, combination type, engine driven

Impregnators, non-centrifugal

Incinerators, commercial and industrial

Incubator shakers

Industrial and laboratory nonelectric furnaces and ovens, n.e.s.

Internal combustion engines, reciprocating

Internal pneumatic line-up clamps for welding transmission

line pipe!

Lifting, loading, and conveying machines and equipment,

n.e.s.

Line-travelling coating and wrapping for pipes and tubes!

Linoleum-making

Lubricating

Machinery and equipment, n.e.s.. for the manufacturing

and assembling of electronic components, n.e.s.

Machines, n.e.s., for processing and working wood, cork,

bone, ebonite, glass, plastics, cement products, stone,

and similar mineral materials

36a

Machines, n.e.s., for treatment of a material involving a

change in temperature

Mattress filling

Measureograph for measuring cloth

Mechanical appliances for testing physical properties of

industrial materials, n.e.s.

Mechanical instuments, n.e.s., for measurement, transmission,

or control of temperature, pressure, or other variables of

liquids or gases!

Mechanical watches and clocks

Metal finishing, chemical

Metailurgical, mill, and foundry equipment, n.e.s.

Metering and mixing, n.e.s.!

Microscopes, except electron and proton, n.e.s.

Nutters

Office machines, n.e.s.

Oil field wire line and downhole equipment?

Optical elements and appliances, n.e.s.

Paint markers and mixers

Paper making machinery

Photoprinters, n.e.s.

Pin ticketing (tag-to-product applying)

Pipe line cleaning!

Plastic working, n.e.s.

Power sweepers

Power transmission equipment, n.e.s.

Presses, n..e.s.

Printed circuit board laminating presses and lead masters

Printing machines, n.e.s.

Proportioning, mixing, and dispensing resins

Pulsating dampeners

Pumps for liquids, n.e.s.

Reels, hose and cable, power operated

Refractory injection guns

Refrigerant charging apparatus, automatic

Refrigeration equipment, n.e.s.

Ribbon coiling

Roller coasters, n.e.s.

Rope-making

Rubber extruding processing

37a

Rubber products manufacturing, n.e.s.

Searchlights and spotlights

Shaking machines, laboratory

Shock absorbers, mechanical or hydraulic

Shoelace tipping

Smoke generators, except military

Snow throwers, self-propelled

Soldering, automotive wave and reflow type

Sonic sewing machines

Special purpose industrial vehicles, n.e.s., nonmilitary,

e.g., cement mixers, street and airfield cleaning,

asphalt mixers, seismograph thumper mounted trucks,

mine shuttle vehicles, trucks, with derrick assembly and

similar equipment for drilling, mounted integral to

truck frame, etc.

Spinning

Spraying machines, n.e.s.

Steam cleaning

Steam generating power boilers, engines, and turbines, n.e.s.

Stone products manufacturing

Surgical dressing making

Surveying, hydrographic, meteorological, hydrological, and

geophysical instruments, n.e.s.

Sweepers, road

Tank-cleaning

Tanks with agitators

Taping machines for covering wire and cable

Textile and leather working machines, n.e.s.

Tire building, recapping, and repairing

Toothbrush manufacturing

Track press for repairing tractor crawlers or tracks

Transfer machines, nonmetalworking, except for assembling,

gauging, or packaging of munitions

Tube cleaners

Tube expanders, maintenance type

Typemaking and typesetting machines, n.e.s.

Vacuum cleaners

Valves, plumbing fixtures, cocks, and taps, n.e.s.

Vegetable oil mill

Vibrating paper joggers

Vibrators, hydraulic

38a

Wall-board plaster core

Watch-cleaning

Water bath shakers ;

Watercraft controls, nonelectric, except military (for example,

steering equipment excluding rudders and remote controls)

Water turbines, water engines, wind, and hot air engines

Wax molding

Waxing industrial

Weed cutting, underwater

Weighing machines

Welders, plastic, ultrasonic

Welding machines, n.e.s.

Welding rod brushing and feeders

Wheel tractors, including garden, log skidders, and contractors

earthmoving types, n.e.s.

Wind tunnels, subsonic

Winding, n.e.s.

Windshield wipers, nonelectric

Wire braiding, wire rope-making, wire stitching, and

measuring

stripping, cutting, and terminal attaching

Zipper manufacturing

39a

COUNTRY GROUPS

15 C.F.R. § 370 Supplement No. |

For export control purposes, foreign countries are separated

into eight country groups designated by the symbols "P", "Q",

"S", "T', "Vv", "Ww", "Y", and "Z". Listed below are the

countries included in each country group. Canada is not

included in any country group and will be referred to by name

throughout the Export Administration Regulations.

* * *

Country Group §

Libya

“ x *

Country Group Z

Cuba

Kampuchea

North Korea

Vietnam

40a

APPENDIX G

UNITED STATES DEPARTMENT OF COMMERCE

International Trade Administration

Washington, D. C. 20230

July 2, 1987

My. Steven R. Perles

1320 9th Street. N. W.

Suite 500

Washington, D. C. 20036

Dear Mr. Perles:

This letter is in confirmation of your telephone conversation of

July 1, 1987 with Ms. Toni Jackson regarding the March 19,

1987 Freedom of Information Act (FOIA) request submitted by

your client Walter J. Spawr.

On June 30, 1987, the Office of Export Enforcement forwarded

to this office documents it located in response to Mr. Spawr's

request. These documents are classified and must undergo a

declassification review to determine what, if any, information

may be released to Mr. Spawr. We have initiated this process,

which will involve review within the Department of Commerce,

as weltas consultation with other agencies.

The documents relate to export license application 209559

submitted by Spawr Optical Research, Inc. on May 14, 1976.

The application was for the export of fourteen copper laser

mirrors, valued at $31,842.50 to the Physics Institute,

University, Moscow, U.S.S.R. The application was submitted

4la

for interagency review through the Advisory Committee on

Export Policy (ACEP) Operating Committee on August 30,

1976 with a preliminary recommendation by the Commerce

licensing officer. The Operating Committee recommended

denial of the application on October 4, 1976. ‘

I hope the above information is helpful to you. We will pursue

the review of these documents as quickly as possible.

Sincerely,

Daniel O. Hill

Director

Program Review Staff

Export Administration

FOI 1987-116

42a

OC DOCUMENT NO. 5653

Value: $30,842.50

End Use: To study the interaction of light and

particle beams with gases of high tem-

perature.

Export Control

Status: IL-1522; prior COCOM clearance is a

US responsibility; CCL No. 8611(1)A.

DESCRIPTION AND USES

The mirrors are manufactured from high purity copper and are

useable over a broad wavelength spectrum. The predominant

use is in the laser field, and particularly with CO lasers. They

are capable, of a damage threshold of greater than 120

kilowatts/cm? and are used primarily with CO> lasers with CW

power levels of approximately 200 watts. They can and are

being used with CO lasers with power levels exceeding 1200

watts. It is not possible without knowing the specifics about

the laser with which these mirrors are utilized, to determine the

maximum level at which they can operate.

These mirrors are being used in commercial and military

applications. Some commercial applications include welding

and pollution studies. General Motors is utilizing similar

mirrors in conjunction with a laser to case harden engine

cylinder walls to achieve longer lifetimes. ERDA is utilizing

these mirrors in their laser isotape separation and laser fusion

43a

programs (the intended end use in this case). DOD is also

utilizing these mirrors in some classified high energy programs.

LICENSING HISTORY

The reference OC document concerned laser optics designed for

use with CO> lasers operating below 1000 watts. The mirrors

in this case are capable of operating at levels exceeding 1200

watts. The referenced case was approved for demonstration in

the USSR.

FOREIGN AVAILABILITY

Comparable laser mirrors are available from Mirror Technique

of Switzerland, a division of Laser Technique of Switzerland.

EXPORT CONTROL STATUS

These mirrors are covered under IL-1522 since they are

components for lasers which have not been specifically

excluded. Although they are not specially designed for lasers

and are used with other light sources, their predominant usage

is with CO, lasers and, therefore, covered by IL-15222.

RECOMMENDATION

Commerce recommends approval of this case based upon the

appropriate non-strategic end use and non-COCOM foreign

availabilit. COCOM approval will be secured prior to

licensing.

44a

APPENDIX H

DECLARATION

in the matter of

United States v. Spawr, et.al., CR 80-789-WMB

CV 85-3193-WMB

Albuquerque, New Mexico

Alan E. Hill declares as follows:

1. I am President and Chief Scientist of Plasmatronics. I

append hereto a summary of my experience, accomplishments

and jpublications, a resume which was given to Assistant U.S.

Attorney Theodore Wu, the prosecuting attorney in the above-

noted case. On the basis of this resume, Mr. Wu subpoenaed

me tto be an expert witness for the prosecution in the subject

Case..

2. Iit is my understanding that Walter Spawr, Frances Spawr,

and Spawr Optical Research, Inc. were convicted of violating

Commodity Control List regulation 7299 (25), attached hereto.

3. After being subpoenaed and scheduled to testify as a

prosecution expert witness at this trial, and prior to the conduct

of tlhe trial, I conferred with prosecutor Wu at a series of

meetings in Los Angeles. At the first meeting, Mr. Wu showed

me a cross-section of a weapons grade double pass

mollybdenum laser mirror which he stated was the type of

minror allegedly exported by defendant Walter Spawr. I later

learned that this was not the type of mirror which SPAWR had

beein alleged to have exported. I informed Mr. Wu that I was

completely familiar with the equipment Mr. Spawr regularly

mamufactured and was accused of illegally exporting, and that

the Spawr and similar mirrors were in widespread use.

45a

4. I also told Mr. Wu that, while employed as a Chief Scientist

of the High Energy Laser Development Branch at the U.S. Air

Force Weapons Laboratory, the Department of Commerce

solicited from me the criteria upon which I would list laser

equipment on the Commodity Control List. The regulation in

question, attached hereto, was identical to my recommendation.

I explained to Mr. Wu that the only laser related items that were

listed on the regulation in question on the Commodity Control

List were items that have, or can be adapted to have, or can be

redesigned and up-scaled to have, weapons grade capability. I

aiso explained that the SPAWR equipment did not and could

not have such capability.

5. The regulation in question restricting export would apply

only to the so called "advance gas flow" technology used to

generate _a-laser-beam,;—but-not-specifically to the mirrors

manufactyred and exported by Walter Spawr -- which is

entirely different.

6. I further told him that even if the generic type of mirrors

manufactured and exported by Walter Spawr were regulated,

the Spawr equipment did not meet the standard for inclusion on

the Commodity Control List that I recommended, because the

SPAWR equipment was not an advanced technology laser

mirror capable of reflecting a laser beam, at the high power

levels required for possible laser weapons applications, without

so distorting the beam as to render it useless for military

applications and that the items in question did not have, nor

could they be adapted to have, or be redesigned and up-scaled

to have, weapons grade capability.

7. I waited outside the courtroom several hours, but was never

called to testify, and I was eventually excused.

I solemnly declare and affirm under penalty of perjury

that the information in the foregoing declaration is true and

correct.

{Signature }

Alan E. Hill

46a

15 C.F.R. 399.1

Commodity Control List-399.1 7299(23) - 7299(27) CCL-61

| 611 || QSTVWYZ || 500 || 500 || O||R

. 7299(25)A Lasers, n.e.c., except (a) argon, krypton,

and dye lasers with both of the following characteristics: (i) an

output wavelength shorter than 0.8 microns, and (ii) a pulsed

output not exceeding 0.5 joule per pulse and an average or

continuous wave maximum rated output power not exceeding

20 watts; (b) helium-cadmium and nitrogen lasers with both of

the following characteristics: (i) an output wavelength shorter

than 0.8 microns, and (ii) a pulsed output not exceeding 0.5

joule per pulse and an average or continuous wave maximum

tated output power not exceeding 120 watts; (c) helium-neon

lasers with an output wavelength shorter than 0.8 microns; (d)

ruby-lasers with both of the following characteristics: (i) an

output wavelength shorter than 0.8 microns, and (ii) an energy

oviput not exceeding 2 joules per pulse; (€) CO> lasers with all

of the following characteristics: (i) an output wavelength in the

range of 9 to 11 microns, (ii) a pulsed output not exceeding 2

joules per pulse and an average or continuous wave maximum

rated output power not exceeding 1,200 watts, and (iii) in

which the beam, electrical excitation, and gas flow, if any, are

in the same direction, or those using the TEA (transverse

excitation atmospheric) principle for excitation; and (f)

Nd:YAG and Nd: Glass lasers with both of the following

characteristics: (i) an output wavelength of 1.06 microns, and

(ii) a pulsed output not exceeding 0.5 joule per pulse and an

average or continuous wave maximum rated output power not

exceeding 10 watts; and specially designed parts and

accessories, n.e.c. (Specify by name and model number.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.