# Petition for Writ of Certiorari — Spawr Optical Research, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1229%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 809 ## Text " JOSEP NO. 88- WF. SPANIOL, Jp K 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. il 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 Eg: nee i eee ole cased encbendordesaxexncsnaycan des il SE SEI ccvnstessssvendcvesscssessosesessens at om ea acne deddurcidessccectsvevsssxaces mies l 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 1V 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, 25 In re Winship, 397 U.S. 358 (1970)............0000. 12,13,20, 22 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 vi 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 2 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 Se 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 9 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. 10 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. 11 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 12 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 13 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 14 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*;*~™~™~~” 15 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 16 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 17 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 18 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 19 [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). 20 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: 2k 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 ae 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), 23 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, 24 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 25 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 ia 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 la 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 2a 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. 3 } ‘ 3a 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. 4a 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. Sa 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. 6a 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. Ta 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 8a 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 : j 3 : 4 ; : H : | : 9a 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. j : i 17a APPENDIX B United States District Court Central District of California United States of America, Plaintiff, v. 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 bil eA il PRADA iO Ge AAS ty eA ao ” ae aa A AE bt citeBS HO Se hsiea A SRR \ithiinnty baniber Misra Uh nk vn aero Sml 2la 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.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1229%3A1. Public record. Not legal advice.