Opposition Brief — Gregg v. United States

No. 87-1156

§Jn the Supreme Court of the @

OCTOBER TERM, 1987

WERNER ERNST GREGG AND ROSWITHA L. GREGG,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES ~

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

J. DOUGLAS WILSON a

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether a warrantless search of petitioners’ trash

violated their Fourth Amendment rights.

2. Whether the warrants authorizing the interception

of telex transmissions to and from petitioners’ business

and the search of petitioners’ home and business satisfied

the particularity requirement of the Fourth Amendment.

3. Whether the district court properly barred peti-

tioner Werner Gregg from introducing into evidence at his

trial copies of the statutes and regulations under which he

was convicted and expert testimony about the meaning of

those statutes and regulations.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ............ 11

Berger v. New York, 388 U.S. 41 (1967) ............... 9

Cooley v. United States, 501 F.2d 1249 (9th Cir. 1974),

cert. denied, 491 U.S. 1123 (1975) .................. 13

Katz v. United States, 389 U.S. 347 (1967) ............. 9

Marron v. United States, 275 U.S. 192 (1927) ........... 10

Osborn v. United States, 385 U.S. 323 (1966) ........... 9

People v. Greenwood, 182 Cal. App. 3d 729, 227 Cal.

Rptr. 539 (1986), cert. granted, No. 86-684 (argued

re i is oa a wi Gn ke kes 7,14

United States vy. Bernhardt, 642 F.2d 251 (8th Cir.

I Seg i ee i ies a ¥ bd y a dce's oom acs 13

United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986),

cert. denied, No. 85-2058 (Oct. 6, 1986) ............. y

United States v. Cuevas-Sanchez, 821 F.2d 248 (Sth Cir.

TERR SP a ar 9

United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.),

cent. dented, 466 U.S. 977 (1964) ..............6.- 10

United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986),

cert. denied, No. 86-6012 (Jan. 27, 1987) ............ 11

United States v. Torres, 751 F.2d 875 (7th Cir. 1984), cert.

CE Fa y

United States v. Vanichromanee, 742 F.2d 340 (7th Cir.

ea es oe co eek hire wee 8 A 11

Williams v. Kunze, 806 F.2d 594 (Sth Cir. 1986) ......... 10

(IIT)

IV

Constitution, statutes, regulation and rules: Page

tf ge Se” CU Sere re er ye ri rE ga 7,9, 11

Arms Export Control Act, 22 U.S.C. 2778 ............. >

Electronic Communications Privacy Act of 1986, Pub. L.

No. 99-508, § 101(a)(3), 100 Stat. 1848 .............. 7

Export Administration Act of 1979, 50 U.S.C. App.

| RE NS NS SOR ENE tn atm RSP ea wo an er 2,5

Omnibus Crime Control and Safe Streets Act of 1968,

Tit. II], Pub. L. No. 90-351, § 801, 82 Stat. 211 ....... 4, 6,

7,8,9

EST ie 3 os cuca snbab wes tenwandees 8

RI CD ae ov civ eoawnncadakeaevess 8

Oe EE oe eh eb sta dare ewe e eae 8

EUR Spf CARS a ASA ratneer Aree ony ries ety e 2

TE PEED catia vac ke sho ccetaralnee bn ame see ane 2

OE RE co hte eRe aka ewe ens puerta 4

22 C.F.R. 121.1:

eg rr rrr rr rrr rrr rer ry ry ese 14

eo rer errr erry rrr rr tr rir 13

eo |e ere errr ere eee rere rs 14

CS FE ead cca va cancers naadkecaxnkans 14

CN PEEING i Socas secs cseissedanaaenes 13, 14

Fed. R. Crim. P.:

I a as vans ee SE 5K Roe wi de Oe 6

NEA on aA, A WS TAP rd MDE Sieg Ce ie RN ae Hh! 4

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1156

WERNER ERNST GREGG AND ROSWITHA L. GREGG,

PETITIONERS

A

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A21)

is reported at 829 F.2d 1430. The opinion of the district

court denying petitioners’ motion to suppress evidence

(Pet. App. A22-A42) is reported at 629 F. Supp. 958.

JURISDICTION

The judgment of the court of appeals was entered on

September 22, 1987. A petition for rehearing was denied

on October 30, 1987 (Pet. App. A43). On December 21,

1987, Justice Blackmun extended the time for filing a peti-

tion for a writ of certiorari to and including January 8,

1988, and the petition was filed on that date. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Missouri, petitioner Werner

(1)

2

Gregg was convicted on four counts of exporting items on

the United States Munitions List without a license from

the State Department, in violation of the Arms Export

Control Act, 22 U.S.C. 2778 (Counts 1-4);' one count of

exporting an item subject to the Export Administration

Act of 1979 without a license from the Commerce Depart-

ment, in violation of 50 U.S.C. App. 2410 (Count 7);? and

two counts of making a false statement on a matter within

the jurisdiction of an agency of the United States govern-

ment, in violation of 18 U.S.C. 1001 (Counts 8 and 9).?

Petitioner Roswitha Gregg entered a conditional plea of

nolo contendere to two counts of income tax evasion, in

violation of 26 U.S.C. 7206(1) (Counts 10 and 11). Werner

Gregg was sentenced to an aggregate term of three years’

imprisonment, foliowed by a five-year term of probation.

He was also ordered to pay fines totaling $200,000.

Roswitha Gregg was sentenced to three years’ imprison-

ment with all but six months suspended, followed by a

three-year term of probation. She was also ordered to pay

fines totaling $4000. The court of appeals affirmed (Pet.

App. Al-A2).

' Count | charged petitioners with exporting night vision goggles

usable for military purposes to the Republic of South Africa. Count 2

charged the unlawful export of 16 military aircraft communication

radios to a private company in West Germany. Count 3 involved the

sale of component parts of a TOW missile system. Count 4 alleged

that petitioners had attempted to export a TACAN air-to-air guidance

system. Pet. App. A2-A3 n.4,

2 Count 7 charged an attempt to export a Laser Inertial Navigation

System to Japan without a Commerce Department license (Pet. App.

A3 n.4).

3 Werner Gregg was acquitted of one count of exporting items on

the United States Munitions List, one count charging a violation of

the Export Administration Act, and four counts of income tax evasion

(Pet. App. A2-A3 nn. 1, 4).

1. Petitioner Werner Gregg founded, and both peti-

tioners Operated, a company called Gregg International.

In September 1982, the Federal Bureau of Investigation

(FBI) received information from a former employee of

Gregg International that Werner Gregg had exported a

TOW missile system to the Republic of South Africa

without the license required by federal law. The FBI

passed that information on to agents of the United States

Customs Service, which began an investigation of peti-

tioners and their business.

In February 1984, a Customs Service agent arranged to

pay a fee to employees of the company that collected trash

from petitioners’ home and business if the employees

‘would turn the trash over to Customs agents. Under the

terms of the arrangement, Customs agents would deter-

mine when petitioners had placed their trash out for col-

lection. An agent then would meet the trash hauler and

provide special bags for petitioners’ trash. The trash col-

lector would pick up petitioners’ trash, piace it in the

special bags, and turn it over to the Customs agents at a

point removed from petitioners’ home or business. Pet.

App. A23-A24.4 The Customs agents did not obtain a

warrant to search the trash (/d. at A24).

In the trash, government agents found telex messages

between Gregg International and its customers. Based on

the telexes, Customs agents obtained a warrant authoriz-

ing the interception of all telex communications to and

from Gregg Inernational for a period of 30 days. That

authorization was later extended for three additional

* At both petitioners’ residence and their business, the trash was

placed in plastic bags, which in turn were placed in plastic receptacles.

At petitioners’ home the trash was left at the curb. At petitioners’

business, the trash was left 25 to 35 feet from the street. (Pet. App.

A24).

4

30-day periods. Pursuant to the telex warrants, the

government monitored all telex traffic to and from Gregg

International between March 19, 1984, and June 30, 1984.

Pet. App. A26-A27.

Based in part on the information obtained from the

telex interceptions and the search of petitioners’ trash,

Customs agents obtained a warrant authorizing the search

of petitioners’ residence and business for documents

relating to violations of various federal export control

laws and regulations. On September 13, 1984, Customs

agents, assisted by local police officers, executed the war-

rant and seized business records, telexes, and other

documents from petitioners’ home and business premises.

Pet. App. A39-A40.

2. Before trial, petitioners filed a joint motion to sup-

press the evidence against them, including the evidence ob-

tained from their trash, from the interception of telexes,

and from the September 13 search of their residence. The

district court held an evidentiary hearing and denied the

motion in full. The court held that petitioners had no

reasonable expectation of privacy in their trash and that

the warrantless trash search therefore did not violate the

Fourth Amendment (Pet. App. A23-A26). The court also

rejected petitioners’ contentions that Title III of the Om-

nibus Crime Control and Safe Streets Act of 1968, Pub. L.

No. 90-351, § 801, 82 Stat. 211, applied to government in-

ierception of telex messages (Pet. App. A26-A31), and

that there was insufficient probable cause to seize all the

telex messages to and from petitioners’ business (id. at

A33).5 In upholding the warrant authorizing telex in-

$ The district court aiso held that the telex interception did not

violate 47 U.S.C. 605 and that the warrant authorizing the intercep-

tion complied with Fed. R. Crim. P. 41 (Pet. App. A31-A34). Peti-

tioners have not challenged those holdings in this Court.

terceptions, the district court specifically found that

“probable cause existed to believe that [petitioners’]

business was permeated with criminal activity” (id. at

A35). Finally, the district court upheld the warrant

authorizing the September 13 search of petitioners’ home

and business (id. at A39-A40).° Again, in upholding ihe

warrant and search the court noted “the suspected breadth

of the business’s criminal activity,” and it found that “[t}he

search was conducted in an orderly manner with the intru-

sion minimized by the agents to the greatest extent pos-

sible” (id. at A40).

The district court granted Roswitha Gregg’s motion to

sever her trial from her husband’s. At Werner Gregg’s

trial, the government introduced evidence to show that the

items that petitioners exported or attempted to export

were subject to the licensing requirements contained in 22

U.S.C. 2778 and 50 U.S.C. App. 2410. The government

also introduced evidence showing that Werner Gregg had

substantial expertise in the area of restricted, licensed ex-

ports. Pet. App. A10.

Gregg did not dispute that he had exported or attempted

to export the items charged. Instead, he attempted to show

that the items at issue were not subject to the State and

Commerce Department licensing schemes that he was

charged with violating. To that end, Gregg sought to in-

troduce expert testimony that the items at issue were not in

fact subject to those requirements. In addition, in an at-

tempt to demonstrate that he lacked the specific intent re-

quired by the pertinent statutes, Gregg sought to introduce

into evidence the federal statutes and regulations that

® The court also rejected several other challenges to the

government’s evidence, including petitioners’ claims that statements

made by both petitioners were inadmissible and that Customs agents

had improperly searched Werner Gregg’s luggage as he was leaving the

country (Pet. App. A36-A38, A40-A41).

a,

6

create and define the licensing requirements and list the

items that are subject to licensing. The district court re-

fused to admit either the proffered testimony or the

regulations. Pet. App. Al0-Al11.

Following Werner Gregg’s conviction, Roswitha Gregg

agreed to enter a conditional plea of nolo contendere to

two counts of income tax evasion (Pet. App. A2 n.1). In

return, the government agreed to dismiss the remaining

counts against her, to make no recommendation as to

sentence, and to urge the district court to allow Mrs.

Gregg to remain free on bail pending appeal. In accord-

ance with Fed. R. Crim. P. 11(a)(2), the agreement al-

lowed Mrs. Gregg to appeal the denial of the motion-to

suppress.

3. The court of appeals affirmed petitioners’ convic-

tions (Pet. App. Al-A21). The court agreed with the

district court that petitioners did not have a reasonable ex-

pectation of privacy in their trash and that Title III did not

apply to telex transmissions (id. at A2-A5). In addition,

the court of appeals rejected Werner Gregg’s contention

that the district court erred by refusing to allow Gregg’s

counsel to introduce into evidence the statutes and regula-

tions defining the offenses charged in the indictment (id.

at Al10-Al11). Finally, the court affirmed the district

_court’s decision to disallow the expert testimony proffered

by Gregg concerning the reach of the statutes (id. at

Al4-A]15).’

’ The court of appeals also rejected Werner Gregg’s contentions

that the statutes at issue are unconstitutionally vague and that eviden- i/

tiary rulings by the district court during his trial were erroneous (Pet. f

App. All-A1l2). These claims are not renewed in this Court. ,

ARGUMENT

1. Petitioners contend that the warrantless search of

their trash violated the Fourth Amendment (Pet. 22). The

searches of petitioners’ trash closely resemble the trash

searches that are at issue in California v. Greenwood, No.

86-684 (argued Jan. 11, 1988). In both cases, a law en-

forcement officer informally asked a trash hauler to turn

refuse collected at the defendant’s curbside over to the of-

ficer. In both cases, information obtained in that manner

was used to obtain warrants for other searches. See People

v. Greenwood, 182 Cal. App. 3d 729, 732-733, 227 Cal.

_Rptr. 539, 542-543 (1986). The validity of the search of

petitioners’ trash is likely to depend on the resolution of

Greenwood. This petition therefore should be held pend-

ing the decision in that case.

2. Petitioners contend that the the warrants authoriz-

ing the interception of the telex traffic, the search of their

home and business, and the seizure of their business

records were invalid. The rejection of this contention by

the courts below, however, is correct and does not conflict

with any decision of this Court or of any other court of ap-

peals. Accordingly, review of petitioners’ Fourth Amend-

ment claim is unwarranted.

a. First, petitioners maintain (Pet. 11-14) that the war-

rants authorizing the interception of the telex messages

were insufficiently particularized. They argue that Title III

embodies the standards to be applied to the issuance and

execution of such warrants.* Thus, they claim that the

® Petitioners have abandoned their claim, rejected by both courts

below, that the version of Title III that was applicable at the time of

the interceptions in this case directly governed the interception of telex

messages (see Pet. 12-14 & nn.11 & 13). In 1986, after the searches in

this case, Title III was amended so that it now reaches telex com-

munications. See Electronic Commuynications Privacy Act of 1986,

Pub. L. No. 99-508, § 101(a)(3), 100 Stat. 1848.

8

magistrate issuing the warrant was required to find that

“normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely tc succeed if

tried or to be too dangerous” (18 U.S.C. 2518(3)(c)), that

the agents executing the warrant should have made efforts

to minimize the interception of legitimate telex messages

(18 U.S.C. 2518(5)), and that the warrant must contain a

“particular description of the type of communication

sought to be intercepted, and a statement of the particular

offense to which it relates” (18 U.S.C. 2518(4)(c)).

First, contrary to petitioners’ assertion, the warrant

substantially complied with the pertinent requirements of

Title III. The warrant contained a description of the com-

munications to be intercepted and the particular offenses

to which those communications related. Second, there was

nothing that government agents could do to lessen the in-

terception of legitimate telex messages in the cir-

cumstances of this case. All of the telexes intercepted were

to and from petitioners’ business, Gregg International

(Pet. App. A27). Thus, each had to be examined to deter-

mine if it related to criminal transactions, which the

district court found to be a substantial part of petitioners’

business (id. at A35). In addition, the warrant tracked the

requirement of 18 U.S.C. 2518(5) by providing that the in-

terceptions could not last more than 30 days unless the

warrant was renewed (Pet. App. A26). There is therefore

no merit to petitioners’ assertion that the warrant was in-

sufficiently particularized.

Petitioners contend, however, that the decision of the

court of appeals conflicts with those of other courts of ap-

peals, which have mandated strict compliance with the re-

quirements of Title III in cases involving television

surveillance, to which the former version of Title III also

9

did not expressly apply. Pet. 12-14 (citing United States v.

Torres, 751 F.2d 875 (7th Cir. 1984), cert. denied, 470

U.S. 1087 (1985); United States v. Biasucci, 786 F.2d 504

(2d Cir. 1986), cert. denied, No. 85-2108 (Oct. 6, 1986);

United States v. Cuevas-Sanchez, 821 F.2d 248 (Sth Cir.

1987)). These cases are readily distinguishable. In each,

the court relied on the extremely intrusive character of

secret television surveillance to hold that Title III em-

bodied the minimum requirements of the Fourth Amend-

ment’s particularity clause. These courts reasoned that

television is significantly more intrusive than other forms

of electronic surveillance because it indiscriminately

records everything its subjects do.

By contrast, the interception of telex messages is much

less intrusive than a telephone or other wiretap that would

be subject to Title III. Telex messages are rarely used for

personal as opposed to business communications, and

their interception does not indiscriminately record

everything a person does or says. Instead, the interception

of telex transmission intrudes on only a narrow range of

activity. For these reasons, the warrant issued in this case

satisfies the particularity requirement of the Fourth

Amendment, and the failure to comply with some aspect

of Title III does not, ipso facto, constitute a violation of

the Constitution.

* Petitioners also contend (Pet. 10-12) that the decision of the court

of appeals upholding the interception of the telexes conflicts with this

Court’s decisions in Osborn v. United States, 385 U.S. 323 (1966);

Berger v. New York, 388 U.S. 41 (1967); and Katz v. United States,

389 U.S. 347 (1967). There is no merit whatever to this contention; the

claimed “conflict” is nothing more than a restatement of petitioners’

claim that the warrant authorizing the interception was insufficiently

particular.

-10

b. Petitioners next contend (Pet. 14-18) that the war-

rants authorizing the interception of the telexes and the

search of their home and business were overbroad in that

they allowed the executing officers to seize all telexes to

and from petitioners’ business and thousands of

documents from their home and business premises. For

this reason, petitioners claim, the decision of the court of

appeals upholding the warrants is contrary to Marron v.

United States, 275 U.S. 192 (1927), and other decisions of

this Court holding that the Constitution forbids “general

warrants.”

As explained above, the warrant authorizing intercep-

tion of the telexes was not overbroad and did not result in

an “overseizure.” Because of the nature of telex

technology and the fact that so much of petitioners’

business was suspect, the Customs agents had to examine

each telex to or from Gregg International in order to deter-

mine whether the telexes related to the illegal activity for

which the agents had developed probable cause. It is well

established that, as in this case, a warrant may describe a

broad category of documents if a more precise description

‘of the items to be seized is not possible. See Williams v.

Kunze, 806 F.2d 594, 598 (Sth Cir. 1986); United States v.

Gomez-Soto, 723 F.2d 649, 654 (9th Cir.), cert. denied,

466 U.S. 977 (1984).

Nor was the warrant authorizing the search of peti-

tioners’ home and businesss and the seizure of documents

found there overbroad. Contrary to petitioners’ assertion,

the warrant did not allow the seizure of “ ‘all’ business

-documents of Gregg International” (Pet. 16). Rather, the

warrant was limited to “documents that consist of sales,

invoices, shipping papers, purchase orders, cor-

respondence, payment records, and telexes relating to the

purchase, sale, storage, transportation and financing of

merchandise exported or to be exported from the United

ee eee Te sab ans

11

States” in violation of several Export Administration

Regulations, federal statutes, and an executive order (Pet.

App. A40 n.8). That description adequately channeled the

discretion of the officers executing the warrant and

prevented the search from being overbroad. See Andresen

v. Maryland, 427 U.S. 463, 480-482 (1976); United States

v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986), cert.

denied, No. 86-6012 (Jan. 27, 1987). A warrant does not

have to specify the precise documents to be seized in order

to satisfy the Fourth Amendment. See United States v.

Vanichromanee, 742 F.2d 340, 347 (7th Cir. 1984).

The reason why the warrant in this case authorized such

an extensive seizure was not that the warrant was over-

broad; rather, it was that petitioners’ illegal activities were

extensive (see Pet. App. A35, A40). As this Court said in

Andresen, 427 U.S. at 481 n.10, “[t]he complexity of an il-

legal scheme may not be used as a shield to avoid detection

when the State has demonstrated probable cause to believe

that a crime has been committed and probable cause to

believe that evidence of this crime is in the suspect’s

possession.” The decision of the court of appeals

upholding this warrant therefore does not conflict with

this Court’s decision in Marron.

c. Petitioners also raise two other related contentions

concerning the breadth of the search of their business.

First, they claim that the courts of appeals are divided over

the question whether a finding that a business is

“permeated with illegal activity” can justify an

“overseizure beyond the scope of the warrant” (Pet. 18).

Second, petitioners claim that the type of relief that should

be granted for such “overseizures” is a question that

should be addressed by this Court (Pet. 21).

The short answer to these contentions is that neither

court below found that there has been any such “over-

seizure.” Nor, as discussed above, is there any basis for

12

this Court to grant certiorari and determine (contrary to

the holdings below) that any warrant in this case was

“overly broad on its face” (Pet. 21). Thus, there is no

reason in this case for this Court to address the conse-

quences of overbroad searches or overbroad warrants.

3. Petitioner Werner Gregg contends that the district

court erred by refusing to allow him to introduce into

evidence the federal statutes and regulations under which

he was convicted and by excluding the testimony of three

expert witnesses who were to testify about the meaning of

those statutes (Pet. 22-24). Neither contention is

meritorious.

Petitioner argues that the length and complexity of the

Arms Export Control Act, the Export Administration Act

of 1979, and the regulations promulgated under both

statutes are relevant to the question whether he had the

specific intent to violate the law. He claims that he should

have been allowed to put these statutes and regulations

- before the jury as evidence that he did not deliberately

violate the law, presumably because the law in question

_ was too complex to understand or master.

The district court instructed the jury that the govern-

ment had to prove beyond a reasonable doubt that Werner

Gregg “acted knowingly and willfully, and with specific in-

tent, and particular knowledge” (Pet. App. A10). Peti-

tioner did not challenge this instruction. Nor does peti-

tioner claim that there was insufficient evidence to show

that he had the requisite specific intent. Indeed, the

evidence at trial showed that Werner Gregg possessed con-

siderable expertise on the statutory scheme at issue (ibid.).

Moreover, it is ordinarily not the province of the jury to

interpret the law, and statutes are not usually admitted in-

to evidence. The introduction of legal material is likely to

confuse the jury without shedding light on the factual

issue it has to decide —in this instance, whether petitioner

13

specifically intended to export controlled items without

the requisite licenses. For these reasons, the district court

did not abuse its discretion by excluding the statutory

material. See United States v. Bernhardt, 642 F.2d 251,

253 (8th Cir. 1981); Cooley v. United States, 501 F.2d

1249, 1253-1254 (9th Cir. 1974), cert. denied, 419 U.S.

1123 (1975).

The district court also did not abuse its discretion by

refusing to admit testimony by three defense experts re-

garding the meaning of the statutes and regulations under

which Werner Gregg was convicted. Two of the expert

witnesses were to testify that the items that Gregg was

charged with exporting in Counts 1, 2, and 4 fell into the

“normal commercial use” exception of the United States

Munitions List. See 22 C.F.R. 121.1, Category XII(c). The

third witness was to testify about whether the TACAN air-

to-air guidance system that was the subject of Count 4 was

on the Munitions List. A secondary purpose of the

testimony of all three witnesses apparently was to show

that the question whether export of these items was pro-

scribed was sufficiently unclear that Gregg could not have

intended to violate the law.

The court of appeals found as a matter of law that the

items ihat formed the basis for Counts 1, 2, and 4 were on

the Munitions List and were not subject to the “normal

commercial use” exception to Category XII of the list (Pet.

App. Al2-A14). In addition, the court held that the exclu-

sion of testimony regarding the TACAN system did not

prejudice petitioner because “[t]he testimony excluded

would not have established any legitimate defense under

the circumstances of the case at bar” (Pet. App. A15).

The court of appeals’ conclusion is clearly correct.

Count | charged the export of night vision goggles, items

that fall within Category XII of the Munitions List. That

category includes “night sighting and night viewing equip-

i

ment.” See 22 C.F.R. 121.1, Category XII(a). Although

subsection (c) of Category XII contains an exception for

items in “normal commercial use,” that subsection by its

terms applies only to “[c]omponents, parts, accessories,

attachments, and associated equipment specifically

designed or modified for the articles in paragraphs (a) and

(b),” which contain the items subject to licensing. Subsec-

tion (c) is not a free-standing category that provides an ex-

ception for any item found in subsections (a) or (b) that

happens to be in normal commercial use.

Similarly, Counts 2 and 4 charged the export of items

that fell into Category XI of the Munitions List, which

governs the export of “electronic equipment * * * for

military application” (see Pet. App. Al3 n.15). Thus,

because as a matter of law the expert testimony that peti-

tioner sought to elicit was incorrect, the district court

properly excluded it.

CONCLUSION

With respect to the question presented concerning the

~ search of petitioners’ trash, the petition for a writ of cer-

tiorari should be held pending the resolution of California

v. Greenwood, supra. In all other respects the petition

should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

J. DOUGLAS WILSON

Attorney

APRIL 1988

vy U.S. GOVERNMENT PRINTING OFFICE: 1988 —202-037/60388

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