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

92-1615

i —_ 6

f ¥%

| Ser 5 — a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

SPAWR OPTICAL RESEARCH, INC.

WALTER J. SPAWR, AND

FRANCES SPAWR,

Petitioners.

v.

UNITED STATES OF AMERICA,

Respomdent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Of Counsel: STEVEN R. PERLES*

PROFESSOR SCOTT C. WHITNEY 1754 Kenyon St., N.W.

1307 N. Kirkwood Rd. Washington, DC 20010

Arlington, VA 22201

(703) 527-5521

(202) 232-1943

(703) 525-5573

*Counsel of Record

i

QUESTION PRESENTED

When the criminal penalty provision of the Export

Administration Act (EAA) does not explicitly define the

elements of the crime of unlawful export, i.e., whether the

commodity had in fact been listed on the Commodity Control

List (CCL) and therefore required a validated license before

it could lawfully be exported, may such element be

conclusively presumed or must it be proved by the

prosecution in a jury trial; and

When the criminal penalty provision of the EAA had

been interpreted by the First, Second and Eighth Circuits to

require the prosecution to prove that the commodity had in

fact been listed on the CCL before the export without license

occurred; and

When the Chairs of the Congressional Committee and

Subcommittee having jurisdiction over the EAA, in the

course of deliberations on the reauthorization of the EAA,

recognizing that the conflict between the circuits offended

Congress’ overriding public policy concern that any statute

regulating the foreign commerce of the United States be

uniformly enforced, explicitly affirmed the validity of the

interpretation of the EAA by the First, Second and Eighth

Circuit Courts of Appeal; and

When the aforementioned Chairs of the Congressional

Committee and Subcommittee having jurisdiction over the

EAA, in order to bring about uniform enforcement of a

Statute regulating foreign commerce of the United States,

called upon the Ninth Circuit to reconsider its erroneous

interpretation of the EAA; and

When the Court of Appeals for the Ninth Circuit

categorically refused to reconsider its misinterpretation of the

EAA;

Whether under all the foregoing circumstances the

Supreme Court should grant certiorari to: (1) assure comity

between the Congress and the judiciary in their interpretation

ll

of the EAA; and (2) to assure that the regulation of foreign

commerce under the EAA be uniformly enforced by the

United States Government.

iil

PARTIES TO THE PROCEEDINGS

The petitioners, named in the caption, were

defendants 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.

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION . .

STATUTE INVOLVED

STATEMENT

REASONS FOR GRANTING THE WRIT

I.

IT.

iV

TABLE OF CONTENTS

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH THE PREVAILING

INTERPRETATION OF THE OTHER

CIRCUITS IN THE JUDICIAL BRANCH. . .

CONGRESS HAS MADE IT

UNEQUIVOCALLY CLEAR THAT THE

COURT OF APPEALS FOR THE NINTH

CIRCUIT MISINTERPRETED THE

EXPORT ADMINISTRATION ACT IN ITS

DECISION IN UNITED STATES v. SPAWR

OPTICAL BESEARGH, INC. ..........

ae

ITT.

¥.

CONCLUSION

Vv

TABLE OF CONTENTS - Continued

CONGRESS, DURING

REAUTHORIZATION OF THE EXPORT

ADMINISTRATION ACT, EXPLICITLY

REQUESTED THE NINTH CIRCUIT TO

CORRECT ITS MISINTERPRETATION OF

THE EXPORT ADMINISTRATION TO

AVERT SERIOUS HARM TO THE

INTERNATIONAL TRADE SYSTEM OF

THE UNITED STATES. .........._..

THE NINTH CIRCUIT'S CONCLUSIVE

PRESUMPTION THAT "ONCE THE

GOVERNMENT ALLEGES THAT THE

COMMODITY WAS LISTED ON THE CA.

- . . THAT RIGHT OR WRONG, THE

TRIAL COURT MUST ACCEPT THIS

DETERMINATION AS A MATTER OF

LAW" WAS FIRST RESORTED TO IN

THE SECTION 2255 PROCEEDING IN

ORDER TO AVOID THE

CONSEQUENCES OF PROSECUTORIAL

MISCONDUCT AT THE CRIMINAL

i os as a

Se ee ee ORK a a OR a oe Rn ev ig

Page

_ 17

APPENDICIES ................... attached

v1

TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (1963) ....... 3

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

(8th Cir. 1987), cert. denied,

te Re 2 rere eee ee 10

Mabry v. Johnson, 467 U.S. 504 (1985) ...... 23

United States v. Geissler, 731 F. Supp.

go Fk hae. ee eae eee ee 10

United States v. Moller-Butcher, 560

F. Supp. 550 (D. Mass. 1983), aff'd,

pes we 2 ogi ee ere 5, 10

United States v. Spawr Optical Research,

Inc., 864 F.2d 1467 (9th Cir. 1988),

cert. denied, 493 U.S 809, reh’g denied,

es, OE a ee owe ek ee passim

STATUTE

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)) ...... passim

Vil

TABLE OF AUTHORITIES - Continued

Page

LEGISLATIVE HISTORY

137 CONG. REC. H8728

(Daily ed. October | | er 7, 13-17

136 CONG. REC. H12788

(Daily ed. October 26, i 17-19

136 CONG. REC. H328]

(Daily ed. June 6, 1990) ........002~2~~” 11-13

MISCELLANEOUS

Brief of the Optical Society of America,

Inc. and the Society of Photo-Optical

Instrumentation Engineers as Amici

Curiae at 15, United States Vv. Spawr

Optical Research, Inc., 864 F.2d 1467

(9th Cir. 1988) (No. 88-1708), cert.

denied, 493 U.S. 809, reh’g denied,

493 U.S. 1022 (1989) .........0002020~2~«*” 19

Bnef of the Laser and Electro-Optical

Manufacturers Association as Amicus

Curiae at 11, United States v. Spawr

Optical Research, Inc., 864 F.2d 1467

(9th Cir. 1988) (No. 88-1708), cert.

denied, 493 U.S. 809, reh 2 denied,

93 U.S. WED) oh ee 19-20

Presidential Memorandum of Disapproval

(November 16, ante EEN Pe oe ta, he 13

IN THE

Sipreme Court of the United States

OCTOBER TERM, 1992

SPAWR OPTICAL RESEARCH, INC.

WALTER J. SPAWR, AND

FRANCES SPAWR, .

Petitioners, .

Vv.

UNITED STATES OF AMERICA,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

‘ for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners Spawr Optical Research, Inc., Walter J.

Spawr and Frances Spawr respectfully pray that a wnt of

certiorari issue to review the judgment of the Court of

Appeals entered in this case on January 8, 1993.

OPINIONS BELOW

The order denying Petitioner’s Motion to Reinstate is

unreported and is annexed hereto as Appendix A. The

majority and dissenting opinions of the court of appeals are

reported at 864 F.2d 1467 (9th Cir. 1988), cert. denied, 493

U.S. 809, reh’g denied, 493 U.S. 984 (1989), and are

annexed hereto as Appendix B. The district court opinion is

unreported and is annexed hereto as Appendix C.

2

JURISDICTION

The judgment of the court of appeals was entered on

January 8, 1993. This court’s jurisdiction is invoked under

28 U.S.C. § 1254(1) (1982).

STATUTE INVOLVED

In Appendices E and F, 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. Stat. 1553 (1974) (current version at 50 U.S.C.

app. §§ 2401-2420 (1982 & Supp. IV 1986)), and provisions

of the Code of Federal Regulations pertaining thereto.

STATEMENT

This case originally concerned an order of the district

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

that if allowed to stand would, inter alia, effectively

preclude trial by jury in Federal district courts in the Ninth

Circuit in criminal prosecutions brought under the Export

Administration Act (EAA) for exporting commodities

without a validated license.

Under this decision, whenever an United States

Prosecutor alleges that 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 therefore 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 the commodity was not on the CCL at

the time of export and therefore did not require an export

license. Under the EAA as thus interpreted, the Secretary of

Commerce -- not the judge nor the jury -- would have the

power under this decision to determine guilt in a criminal

3

proceeding and the guilt-determinative element of the crime

would be final and unreviewable.

At the trial, petitioners stipulated that they had

exported the optical laser mirrors and that petitioners did not

have a validated export license. The sole disputed issue was

whether the optical laser 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

optical laser mirrors had been listed on the CCL, the export

without a license constituted a violation of the Act. If the

optical laser 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 at trial the 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 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 be

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 “[t]he issue is not

' The 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. 40a). By its terms, the listed commodities may be freely

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

resulted because "Interpretation 29" listed “optical elements and appliances,”

which misled both judge and jury.

4

one which goes to the jury". (App. 25a). 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. 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 ->f an order by the Secretary,

which list 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. 12a). The majority

interpreted this preclusion of judicial review with respect to

administrative determinations as to 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 CXL,

a finding that in turn automatically determines whether a

license is legally required.

The court, blurring the distinction between whether

5

a commodity should be listed and whether it in fact had been

listed, concluded that "when the Secretary RAgisgued as

license or order, the factfinder is instructe(App. 13a). This

law, without considering its advisability." (the Secretary in

supersession of the judge and jury by tcording to the

individual criminal prosecutions is, ace trial court must

majority, absolute - "[rjight or wrong, thea matter of law",

accept [the Secretary's] determination as aependently at trial

and “the government need not establish inde were included on

_. . that the Spawr’s optical laser mirrors ing requirement."

the CCL and therefore subject to the licensiill the government

(Id.) The mere act of intentional export is al obtain conviction

needed to prove, according to the court, to

of petitioners. (/d.). that he could not

Judge Pregerson dissented. He said provided the basis

agree with the statutory interpretation that psions [that exempt

for the majority’s decision -- “These provisly action under the

the Secretary from judicial review of agency support for the

Administrative Procedure Act] offer no! the factfinder is

majority’s position that in a criminal trialommodity was in

precluded from determining whether a co alleged criminal

fact listed on the CCL at the time of the

violation." (App. 15a). the majority had

Judge Pregerson also noted that wer, 560 F. Supp.

misconstrued United States v. Moller-Butchir. 1983), which,

550 (D. Mass.), aff'd 723 F.2d 189 (Ist Cstinction between

if read correctly, "makes clear the disstary actually did

judicial review of (1) whether the Secretion of fact -- and

place a commodity on the CCL -- a questaced a commodity

(2) whether the Secretary should have plaApp. 15a).

on the list -- a question of advisability." (/at “the maiority’s

Finally, Judge Pregerson noted thom constitutional

reading of the Act also suffers froial infirmities that

infirmities." (App. 16a). The constitution: abridgement of

Judge Pregerson noted include the 1e process and the

petitioners’ "Fifth Amendment right to du

6

Sixth Amendment guarantee of a criminal defendant’s right

to tnal by jury [which] require(s] not only that the

wee wee yveyvilu a

reasonable doubt, but also that each element be submitted to

an impartial trier of fact." (Jd.). 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.

(App. 17a).

Moreover, the majority completely ignored and made

no reference to petitioner’s 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. 44a). 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

ELL

7

that a commodity is available without restriction from

sources Outside the United States, the Secretary is subject to

a tame y Wea VULiZauUl LOO TemlOve CONUOIS ON Ine

export of such commodity from the United States unless the

President determines that absence of controls would prove

detrimental to the national security of the United States.

(App. 30a). This contention was completely ignored by the

court of appeals and constitutes an independent legal basis

for requiring reversal of the Ninth Circuit. Thus, even if the

Ninth Circuit was correct to conclusively presume the

commodity had been listed on the CCL, under the terms of

the EAA, the listing would have been per se unlawful and

void.

Subsequently, this misinterpretation of the EAA by

the Ninth Circuit came to the attention of Congress which

was engaged in reauthorization of the EAA. As shown

hereafter, the leadership of the Committee and Subcommittee

having jurisdiction over this legislation rejected the

interpretation of the Ninth Circuit and explicitly called on

"the Ninth Circuit to reverse itself and thereby join in the

uniform national rule established by the Gregg and Moller-

Butcher cases which correctly interpreted the intent of

Congress." 137 CONG. REC. H8728, (Daily ed., October

30, 1991).

Petitioners thereupon submitted their Motion to

Reinstate Their Appeal to the Ninth Circuit on February 25,

1992, requesting that court to take note that its interpretation

of the EAA conflicted with the decisions of the First, Second

and Eighth Circuits and thus created the anomaly that there

was no consistent nationwide rule as to when a federal crime

would be committed under the EAA; and secondly, that its

interpretation was expressly repudiated by the leadership of

the relevant committee in Congress and that the

interpretation of the First, Second and Eighth Circuits was

the correct interpretation of the Export Administration Act.

Congress recognized that the conflict between the

8

circuits offended overriding public policy concerns that any

Statute regulating the foreign commerce of the United States

he unifarmls, anfazead. WA wxqnesiy acpudiaied tne Winth

Circuit’s decision and requested they reconsider and abandon

it.

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals for the Ninth

Circuit in this case creates an irreconcilable conflict with

decisions in the First, Second, and Eighth Circuits

interpreting the Export Administration Act of 1969 (EAA) 50

App. U.S.C. et seq. on the issue of what constitutes the

United States’ burden of proof in criminal prosecutions

under the Export Administration Act.

As shown infra in Part I, Congress has made it

unequivocally clear that the Court of Appeals for the Ninth

Circuit misinterpreted the Export Administration Act in its

decision in United States v. Spawr Optical.’

Moreover, as shown infra in part II, Congress during

Reauthorization of the Export Administration Act explicitly

requested the Ninth Circuit to correct its misinterpretation of

the EAA to avert serious harm to the foreign trade system of

the United States.

Despite this Congressional request, the Ninth Circuit

? The importance of whether the commodity had in fact been listed on

the CCL is clear. If the commodity has been placed on the CCL, a

validated license is a prerequisite for lawful export. If the commodity has

not been listed on the CCL, a license is not required. Thus proof that the

commodity has been placed on the CCL is the key determinant of whether

export without a license constitutes an illegal act in all of the United States

except in the Niath Circuit.

a

9

has obdurately persevered in its erroneous interpretation’ of

the Export Administration Act and ignored the Congressional

request “to reverse itself and thereby join in the uniform

ational rule" governing the government’s burden of proof

in criminal prosecutions under the EAA.

i. THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH THE PREVAILING

INTERPRETATIONS OF THE OTHER

CIRCUITS IN THE JUDICIAL BRANCH.

As shown hereafter, the Decision of the Ninth Circuit

also conflicts with the unequivocally clear intent of Congress

in the EAA and thereby disrupts the comity between the

legislative branch and the judiciary that is an imperative

necessity in the conduct of this nation’s foreign commerce.

Moreover, this holding directly conflicts with decisions in

3 In addition to Congress, the dissent clearly established that the

majority’s decision was based upon a fundamental misinterpretation of the

controlling statute:

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 1473 (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 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 trail 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.

Spawr Optical, 864 F.2d at 1474-1475 (emphasis added) (App. 16a).

10

three other Circuits.

As a result of the Ninth Circuit’s misinterpretation of

the EAA, the law has become confused 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 Court of Appeals for the First Circuit in United States v.

Moller-Butcher, 723 F.2d 189 (1983), affirmed the district court's

interpretation of the government’s burden of proof under the Export

Administration Act as including proof of three elements:

1. That the commodity in issue was listed on the CCL at

the time of export thereby creating the legal requirement

for a validated export license before the commodity can

be lawfully exported;

2. That the commodity was in fact exported without a

validated export license; and

3. That the defendant acted knowingly.

United States v. Moller-Butcher, 560 F. Supp. 550, 553 (D. Mass. 1983).

Similarly, in the Second Circuit, the District Court in United States

v. Geissler, 731 F. Supp. 93 (E.D.N.Y. 1990), also held that the Export

Administration Act imposes the same three-pronged burden of proof and

specifically requires proof that the commodity in issue was actually listed on

the CCL at the time of export:

Upon reviewing the relevant portions of the EAR {Export

Administration Regulations], the Court finds that F-14

aircraft tires are contained in the CCL and therefore are

covered by the EAR. . . . [which expressly states that

“the export from the United States" . . . is governed by

the licensing requirements... .

Geissler, 731 F. Supp. at 96 (emphasis added).

Finally, the Eighth Circuit in Gregg v. United States, 829 F.2d

1430 (8th Cir. 1987), cert. denied, 486 U.S. 1022 (1988), held:

When the case gets to court, .. . the government needs

to prove . . . that the item exported appears on the

Munitions List or the Commodity Control List, as the

case may be (and, of course, that the defendant

knowingly and willfully exported it, with the necessary

intent and knowledge, and without an appropriate

license). (Emphasis added)

Thus, all three circuits agree that the government must prove, not

merely allege or presume, that the commodity is listed on the CCL. Absent

proof of this element, export of a commodity without a validated license is

not a crime.

11

the United States and thereby it has an important impact on

United States foreign policy and national security.°

I. CONGRESS HAS MADE IT

UNEQUIVOCALLY CLEAR THAT THE

COURT OF APPEALS FOR THE NINTH

CIRCUIT MISINTERPRETED THE

EXPORT ADMINISTRATION ACT IN

ITS DECISION IN UNITED STATES vy.

SPAWR OPTICAL RESEARCH, INC.

On june 6, 1990, in connection with the

reauthorization by Congress of the Export Administration

Act, Congressman Frank Horton of New York, the ranking

minority member of the Government Operations Committee,

engaged in the following colloquy with Congressman

Gejdenson of Connecticut, the Chairman of the

Subcommittee on International Economic Policy and Trade

of the House Committee on Foreign Affairs, which has

primary jurisdiction over the Export Administration Act, and

with Congressman Roth of Wisconsin, the ranking minority

member of the Subcommittee:

Mr. HORTON. Mr. Chairman, I rise

along with the gentleman from California

[Mr. MCCANDLESS] to engage the gentleman

from Connecticut [Mr. GEJDENSON] and the

gentleman from Wisconsin [Mr. ROTH] in a

colloquy.

Mr. Chairman, as you know I am

concerned that, since the decision of the U.S.

Court of Appeals for the Ninth Circuit in

* 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.

12

Spawr Optical Research, Inc. v. United

States, 864 F.2d 1467 (1988), there is no

longer a clear nationwide rule governing the

burden of proof the U.S. Government must

prove in criminal prosecutions under the

Export Administration Act. I understand that

you have included an amendment in H.R.

4652 which will make it completely clear that

the U.S. Government is required by law to

prove that the commodity that was exported

was, in fact, listed by the Secretary of

Commerce on the commodity control list at

the time of export. Is that correct?

Mr. GEJDENSON. Yes. As we stated

. age 17 of the House Report on H.R.

4653:

“The Committee believes that it is for the Government to

prove that the item exported was on the commodity

control list at the time of export."

Mr. HORTON. Mr. Chairman, am I

correct that the Export Administration Act

requires the Government to prove beyond a

reasonable doubt that:

First, the commodity in question has, in fact,

been listed by the Secretary on the commodity

control list -thus creating the legal

requirement to obtain a validated license prior

to export;

Second, the commodity was exported without

obtaining such a license; and

Third, that the exporter intended to export the

commodity?

Mr. GEJDENSON. Yes. That is a

correct statement of what the act requires.

This amendment is intended to clarify what

the Export Administration Act has required

since its original enactment.

Mr. HORTON. Mr. Chairman, |

would ask the ranking member, the gentleman

from Wisconsin [Mr. ROTH], if he agrees

with these responses?

Mr. ROTH. Mr. Chairman, I agree

with the gentleman from Connecticut [Mr.

GEJDENSON].

Mr. McCANDLESS. Mr. Chairman,

13

will the gentleman from New York [Mr.

HORTON] yield?

Mr. HORTON. I yield to. the

gentleman from California.

Mr. McCANDLESS. My question is

this. Is the Chairman satisfied that H.R.

4653 will make it clear that it was Congress’

intent at the time the Export Administration

Act was enacted, and that it remains

Congress’ intent that, in prosecutions under

the act, the government is required to prove

that an exported commodity was on the

commodity control list at the time it was

exported?

Mr. GEJDENSON. Yes. _ The

committee report on H.R. 4653 makes it clear

that it was and is Congress’ intent to require

the Government to [prove] in criminal

prosecutions under e act, that the

commodity in question was in fact listed on

the commodity control list. If a commodity

was not listed, it would not be a crime under

the act to export it without a license.

136 CONG. REC. H3281 (Daily ed. June 6, 1990).

Subsequently, Congress reauthorized the Export

Administration Act, but President Bush vetoed the legislation

for reasons that do not pertain to this issue. Presidential

Memorandum of Disapproval (November 16, 1990).

Thereafter, on October 30, 1991, a further colloquy

occurred:

Mr. HORTON... .

Mr. Chairman, on June 6, 1990 we

discussed the problem that was created with

respect to the Export Administration Act by a

decision of the U.S. Court of Appeals for the

Ninth Circuit in Spawr Optical Research, Inc.

v. United States, 864 F.2d 1467 (1988). The

problem is that since this judicial decision

there is no longer a clear nationwide rule

governing the burden of proof the U/S.

government must sustain in_ criminal

14

prosecutions under the Export Administration

Act. In that colloquy on June 6, 1990, it was

agreed that the court of appeals for the ninth

circuit had misinterpreted the Export

Administration Act requirement that the U.S.

Government must prove that the exported

item was in fact listed by the Secretary of

Commerce on the commodity control list thus

creating the legal requirement to obtain a

validated license prior to export.

In your position as Chairman of the

Subcommittee on International Economic

Policy and Trade of the House Committee on

Foreign Affairs, is this your understanding of

the law?

Mr. GEJDENSON. If the gentleman

will yield, that is correct.

Mr. McCANDLESS. Mr. Chairman,

will the gentleman yield?

Mr. HORTON. I yield to the

gentleman from California.

Mr. McCANDLESS. I would like to

add that Federal courts in the first and eighth

circuits have issued decisions which enunciate

the legally correct interpretation of the Export

Administration Act. For example, in United

States v. Gregg, 829 F.2d 1430, 1437 (8th

Cir. 1987) the eighth circuit clearly stated

"when the case gets to court, all the

government needs to prove is that the item

exported appears on the munitions list or the

commodity control list, as the case o- be,

and that the defendant knowingly and wil fully

exported it, with the necessary intent and

knowledge, and without the appropriate

license." The same rule applies in the first

circuit, United States v. Moller-Butcher, 560

ate 552-553 (D. Mass. 1983) [aff'd 723

F.2d 189 (1st Cir. 1983).

In an earlier collog Chairman

uy,

GEJDENSON made it explicitly dane that these

cases have properly interpreted the Export

Administration Act. He stated that the report

on H.R. 4653 makes it explicitly clear that is

was and is Congress’ intent to require the

15

Government to [prove] in criminal

prosecutions under the act, that the

commodity in question was in fact listed on

the commodity control list. If a commodity

was not listed, it would not be a crime under

the act to export it without a license. Mr.

Chairman, is this still the gentleman’s

understanding of the law.

Mr. GEJDENSON. Mr. Chairman, if

the gentleman from New York will yield; yes,

it 1S.

Mr. HORTON. Finally, as I did in our

earlier colloquy on this issue I would like to

note that the ninth circuit has issued yet

another decision which aggravates the

problem. On September 14, 1990, the Court

of Appeals for the Ninth Circuit in a case

styled United States v. Mandel, reaffirmed the

Spawr decision as the pr gern are

governing the burden of proof the U.S

Government must prove in criminal

prosecutions under the Export Administration

Act.

Ijinder the Spawr decision, the ninth

circuit held that the U.S. Government need

not prove beyond a reasonable doubt that the

commodity in issue had been listed on the

commodity control list and therefore was

Subject to the export licensing requirement.

Mandel reaffirms the Spawr h celdinn and

explicitly reiterates that judges and juries

must accept without question the U.S.

government’s aliegation that the Secretary of

Commerce had listed the commodity on the

commodity control list prior to the export of

the commodity.

We cannot continue to allow the

proliferation of the Spawr decision to wreak

havoc on our export trade and the free

exchange of technical and scientific ideas. It

is clear that the lack of a uniform national

Standard concerning the burden of proof in

Criminai prosecutions under the Export

Administration Act adversely impacts the

dissemination of scientific information,

16

creates a chilling effect on the free exchange

of ideas, and impairs our export trade. I have

been contacted by scientists and exporters

who urge Congress to clarify this matter and

to reestablish a uniform nationwide rule. I

reiterate that the Optical Society of America

believes that the Spawr decision has created

an intolerable situation and urges Congress to

establish a uniform national rule, namely, the

Gregg rule, and to_ repudiate’ the

misinterpretation of the law by the ninth

circuit in the Spawr decision.

Subsequent to our colloquy in this

matter, Congress passed legislation which

would have extended the Export

Administration Act with amendments not

germane to this problem. The President

vetoed this legislation for reasons that, again,

are not germane to this problem. The status

quo ante under the Export Administration Act

is now maintained by Executive Order.

Whether the Export Administration

Act *s kept in force by Executive order or

extended legislatively, the problem remains

that the ninth circuit has misapprehended that

law. In the interval since our earlier colloquy

it has come to my attention that yet another

case has been decided by a federal district

court in the ninth circuit in which the Spawr

case and the Mandel case are treated as the

law of the circuit. I refer here to United

States v. Adelkadar Helmy, at 712 F.Supp.

1423 (E.D. Calif. 1989). Does the gentleman

from Connecticut join us in the desire to see

the ninth circuit remedy the problem created

by the Spawr case?

Mr. GEJDENSON. Mr. Chairman, |

join the gentleman from New York and the

gentleman from California in calling on the

ninth circuit to reverse itself and thereby join

in the uniform national rule established by the

17

Gregg and Moller-Butcher cases which

correctly interpret the intent of Congress.

137 ConG. REC. H8728 (Daily ed. October 30, 1991).

Mm. CONGRESS, DURING

REAUTHORIZATION OF THE EXPORT

ADMINISTRATION ACT, EXPLICITLY

REQUESTED THE NINTH CIRCUIT TO

CORRECT ITS MISINTERPRETATION

OF THE EXPORT ADMINISTRATION

ACT TO AVERT SERIOUS HARM TO

THE INTERNATIONAL TRADE SYSTEM

OF THE UNITED STATES.

On October 26, 1992, the second of three colloquies

took place in Congress which addressed the serious injury to

the national interest which the Ninth Circuit’s decision in

Spawr Optical inflicts:

Mr. HORTON, [Ranking Minority

Member, Government Operations Committee]

Mr. Speaker, I rise along with the gentleman

form California [Mr. MCCANDLESS] to

engage the gentleman from Florida [Mr.

FASCELL] [Chairman, House Foreign Affairs

Committee] and the gentleman from

Wisconsin [Mr. ROTH] [ranking Minority

Member, House Foreign Affairs] in a

colloquy.

In the period since our colloquy, ...

the Ninth Circuit has issued yet another

decision which aggravzies the problem. On

September 14, 1990, tne Court of Appeals for

the Ninth Circuit in a case styled United

States versus Mandel, reaffirmed the Spawr

decision as the controlling precedent

governing the burden of proof the U.S.

Government must prove under the Export

Administration Act.

Under the Spawr decision the Ninth

ee ne

18

Circuit held that the U.S. Government need

not prove beyond a reasonable doubt that the

commodity in issue had been listed on the

commodity control list and therefore was

subject to the export licensing se net

Mandel reaffirms the Spawr holding and

explicitly reiterates that judges and juries

must accept without question the U.S.

Government’s allegation that the Secretary of

Commerce had listed the commodity on the

Commodity Control List prior to the export of

the commodity.

Mr. Speaker, I say to the Chairman,

the proliferation of the Spawr decision is

beginning to produce devastating effects on

our export trade and the free exchange of

technical and scientific ideas. I have letters

from well-known scientists and scientific

societies and important exporters who assert

that this lack of a uniform national standard

concerning the burden of proof in criminal

prosecutions under the Export Administration

Act adversely impacts the dissemination of

scientific information, creates a chilling effect

on the free exchange of technical information

and ideas, and impairs our export trade. All

of these scientists and exporters urge

Congress in the reauthorization of the Export

Administration Act to clarify this matter and

to reestablish a uniform nationwide rule. To

cite but one example, the Optical Society of

America, the largest society in the worla

devoted to the scientific and technological

applications of light publishes five journals

throughout the world dealing with advanced

iechnical subjects and conducts numerous

international conferences. The Optical

Society believes that the Spawr decision has

created an intolerable situation and urges

Congress to establish a uniform national rule,

namely the Gregg rule, and to repudiate the

misinterpretation of the law by the Ninth

Circuit in the Spawr decision. I say to the

Chairman, I lieve there is complete

agreement in both Houses that there must be

Ee

19

e and it is up to

a clear, uniform national rulaon.

Congress to clarify the situat October 26, 1990).

136 CONG. REC. H12778 (Daily edica Inc., referred to by

The Optical Society of Amernicus curiae jointly with

Congressman Horton, filed a brief anmentation Engineers in

the Society of Photo-Optical Instruition for Certiorari that

support of petitioners’ previous Petcts of the Spawr Optical

summarized one of the adverse impa

decision: in the Circuits

The effect of the conflict tions under the

concerning criminal prosecuSclentsts from

EAA us to. discourage P papers and

attending meetings, publish *Me © fect is to

initiating research subjects. Ment and First

raise serious Sixth Amend, this matter is

Amendment issues. Until ‘hmicians, and

resolved, scientists, tec 19 a Symposium

academicians who participate Or disseminate

or conference or who publisun the msk that

scholarly papers and ideas 1 his subordinate

the Secretary of Commerce oand the accused

will initiate a prosecution --4 to rebut with

scientists will not be permittcriminal charge.

fact the chief element of the ica, Inc. and the Society

Brief of the Optical Society of Amergineers as Amici Curaie

of Photo-Optical Instrumentation Encal Research, Inc., 864

at 15, United States v. Spawr Optil708), cert. denied, 493

F.2d 1467 (9th Cir. 1988) (No. 88-

U.S. 809 (1989). Optical Manufacturing

The Laser and Electro-tssociation representing

Association, a non-profit trade 2 than ninety percent of

companies which manufacture morment produced in North

the laser and electro-optical equipricus curiae supporting

America, also filed a brief amibed the “chilling effect”

petitioners’ petition in which it descr

of the majority’s decision: ) incur the risk of

Exporters will be reluctant tctechnology when

exporting any commodity or

20

the Secretary of Commerce, for whatever

reason, can allege after the fact of export that

the commodity or technology was on the

Control List and required an export license.

In such a system the mere act of exporting a

por covggag Re! technology may be made a

crime. ether the allegation is nght or

wrong is irrelevant, according to the court

below. The normal judicial machinery -

judge and trial by jury - would be powerless

to check any abuse because under the decision

of the divided panel of the court below, they

are not competent to rule on the issue of

whether in fact the commodity or technology

has been placed on the Control List.

The practical result is that many

exporters would be reluctant to incur such a

risk and a great many more exports would be

made only after seeking a license. The

present system is inadequate to administer

such a volume of applications. The result is

plain. United States exports of high

technology goods and data would be delayed

by an overburdened system to the sole

advantage of foreign competitors able to

promptly fill orders that American businesses

would be unable to supply in a timely fashion.

Brief for the Laser and Electro-Optical Manufacturers

, Association as Amicus Curaie at 11, United States v. Spawr

Optical Research, Inc. , 864 F.2d 1467 (9th Cir. 1988) (No.

88-1708), cert. denied, 493 U.S. 809 (1989).

There is an urgent need to correct this situation by

setting aside Spawr Optical and recognizing the correct intent

and meaning of the Export Administration Act with respect

to the Government’s burden of proof (as described in the

June 6, 1990, colloquy) that applies in criminal proceedings

for violation of the Export Administration Act: "[t]he

committee believes that it is for the government to prove that

the item exported was on the commodity control list at the

time of export." 136 CONG. REC. H3281 (Daily ed. June 6,

1990) (Statement of Rep. Gejdenson).

21

IV. THE NINTH CIRCUIT’S CONCLUSIVE

PRESUMPTION THAT "ONCE THE

GOVERNMENT ALLEGES THAT THE

COMMODITY WAS LISTED ON THE

CCL ... THAT RIGHT OR WRONG, THE

TRIAL COURT MUST ACCEPT THIS

DETERMINATION AS A MATTER OF

LAW" WAS FIRST RESORTED TO IN

THE SECTION 2255 PROCEEDING IN

ORDER TO AVOID THE

CONSEQUENCES OF PROSECUTORIAL

MISCONDUCT AT THE CRIMINAL

TRIAL.

One of the most striking anomalies in this case is that

at no stage in the initial criminal prosecution was it ever

disputed that the prosecution was required to prove that the

commodity was in fact listed on the CCL. The fundamental

premise of the entire criminal prosecution was that proof that

the commodity had been listed on the CCL is a prerequisite

for triggering the legal requirement for a validated export

license before the commodity could be legally exported.

Until the government proves that the commodity was in fact

listed on the CCL, the government cannot prove that a

validated export license is required by law. Nor can it

establish that exporting without a license is a crime.°

© This principle was recognized at the grand jury proceedings (see

Testimony of Commerce Department employee Robert W. Rice, grand jury

proceedings, Los Angeles, CA, August 27, 1980, 3-17); it was recognized

in the indictment (which charges the defendants violated section 2405(b) of

the EAA by exporting to the Soviet Union a commodity controlled for

national security purposes, i.e., a commodity listed on the CCL); it was

recognized by the trial court and all parties to the pre-trial conference (Trial

transcript 84); it was recognized by the prosecutor in his opening statement

(Trial transcript 278, 283); in the prosecution’s selection of expert witnesses

to adduce evidence that the commodity had in fact been listed on the CCL

(Testimony of Government witnesses Boidock, Trial transcript 633; Wick,

Trial Transcript 103, 1014; Winter, Trial transcript 1039-1047; and

22

At the trial, the petitioners stipulated that they had

exported the commodity and that they had done so without

a validated export license. The entire dispute at trial

focused on whether the commodity in question had in fact

been listed on the CCL. If the commodity had been listed on

the CCL, a crime had been committed; if the commodity had

not been listed on the CCL, no crime was committed.

There is no dispute that the Ninth Circuit’s present

version of the burden of proof in Export Administration Act

criminal prosecutions first emerged in the 2255 proceeding.

It was in this 2255 proceeding that petitioners first became

aware of the gross prosecutorial misconduct of which they

had been victims in the orginal trial and first established in

the record the full inventory of prosecutorial misconduct of

which they were victims:

1. The suppression of expert testimony and

evidence that would have proved that the

commodity was not listed on the CCL at the

time of export without a license. (App. I at

4Sa). .

2. The falsification of evidence by means of

the submission of a fake list to convince the

judge and jury that the commodity was in fact

included on the list at the time of export.

(App. G at 34a). (Trial transcript 115, 117).

3. The suppression of evidence that the

commodity at issue was freely available in

Avizonas, Trial transcript 1933-1952); and in the prosecutor’s opening

argument (Trial transcript 2080-2083). In addition, it was recognized by the

trial judge (Trial transcript 1787-1796, 1801, 1919-1922) and was

incorporated into his instructions to the jury (Trial transcript 2316-2319).

23

non-CoCom countries’ (App. H at 4la),

which precludes as a matter of law the

imposition of an export license requirement,

EAA section 2402(b)(2), and was thereby an

absolute defense.

Thus, the government, to avoid the consequences of

their prosecutor’s misconduct was forced to resort to the

absurd theory that the guilt-determinative question of fact

(i.e., whether the commodity was in fact listed on the CCL)

could be conclusively presumed rather than proved. It was

precisely this theory that Judge Brunetti and his colleague

embraced."

? Countries, other than Australia, Belgium, Canada, Denmark, France,

the Federal Republic of Germany, Greece, Italy, Japan, Luxembourg, the

Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom and the

United States, which, by multilateral agreement (The Coordinated

Committee for Multilateral Export Controls (CoCom), control the export of

commodities listed on the CCL to communist dominated countries.

* Consequently, if the divided panel's interpretation of the EAA was

deemed to be a correct reading of the Act and the guilt-determinative

element of the crime is “not a triable issue,” neither the trial court, the jury,

the prosecution nor the Spawrs were aware of this interpretation.

Accordingly, petitioners’ conviction would be invalid for the reson that the

Spawrs’ position at trial constituted an inadvertent confession of a crime

despite pleading not guilty. The Spawrs were provided a jury trial to

dispute that the commodity was on the CCL and to dispute the claim that an

export license was required by law. Under the divided panel’s opinion the

entire trial was a meaningless farce. A guilty verdict was assured when the

Spawrs stipulated they had exported the commodity without a license. The

stipulation was the functional equivalent of an inadvertent confession to a

crime.

It is well-settled that a statement of fact amounting to a confession

if made with less than full information and knowledge of the circumstances,

invalidates a criminal conviction. For a confession to support a conviction,

the record must show that the defendant, in making the confession, was

"fully aware of the direct consequences” of the confession. Mabry v.

Johnson, 467 U.S. 504, 509 (1985) (quoting Brady v. United States, 397

U.S. 742, 755 (1970)). Due process requires that the defendant be "fairly

24

CONCLUSION

For each of the foregoing reasons, the Supreme Court

should grant certiorari: (1) to assure comity between the

Congress and the Judiciary in the interpretation of the EAA;

and (2) to assure that the negotiation of foreign commerce

under the EAA be uniformly enforced by the United States

Government.

—e submitted, /, y/) JL)

Sef bee

j 4

AY Cee 1 (h ZZ

STEVEN R. PERLES

1754 Kenyon St., N.W.

Washington, DC 20010

(703) 527-5521

(202) 232-1943

Counsel of Record

Of Counsel:

PROFESSOR SCOTT C. WHITNEY

1307 N. Kirkwood Rd.

Arlington, VA 22201

(703) 525-5571

fh

appraised of [the confession’s] consequences." Johnson, 467 U.S. at 509.

P

A

SOO

APPENDICES

INDEX TO APPENDICES

APPENDIX A .

APPENDIX B

APPENDIX C

Order of the United States Distnct Court for the

Central District of California | &

APPENDIX D

Opinion of the United States Court of Appeals for

the Ninth Circuit Denying Petition for Rehearing

and Suggestion for Rehearing en banc . 28a

APPENDIX E

Title 50, Appendix - War and National Defer

: 940] 9413 ey

APPENDIX F

15 C.E.R. 399. ] 33d

APPENDIX G

4

5 C.F.R. 399.2 34a

INDEX TO APPENDICES —- Continued

\PPENDIX H

‘r from Daniel O. Hill

OC Document No. 5653

APPENDIX |

APPENDIX J

136 CONGRESSIONAL RECORD H328]

(Daily ed. June 6, 1990)

\PPENDIX K

137 CONGRESSIONAL RECORD H8&728

(Daily ed. October 30, 1991)

\PPENDIX I

= Nee deed

136 CONGRESSIONAL RECORD H12778

(Daily ed. October 26. 1990)

‘as

+1

APPENDIX A

Filed January 6, 1993

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS ,

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ) No. 87-6272

)

Plaintiff- Appellee ) D.C. Nos.

)

. CR-80-0789-W MB

VS. ) and

) CR-85-3193-WMB

SPAWR OPTICAL RESEARCH, INC... )

WALTER J. SPAWR. and FRANCES — ) ORDER

SPAWR )

Defendants-Appellants

3efore: PREGERSON, WIGGINS, and BRUNETTI, Circuit

Appellant's motion to reinstate their appeal is DENIED.

t

4.

Za

APPENDIX B

Lnited States Court of Anneals For the Ninth Circuit ....

| nited States of America. ) No. 87-6272

Plainutt-Appellee

) DC Nos

\ ) CR-80-0789-WMB

) and

Spawr Oputcal 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 Distnct of California

William Matthew Byrne, Jr., District Judge. Presiding

Argued and Submitted

March 7, 1988 - Pasadena, California

Filed December 29, 1988

Before: Harry Pregerson, Charles Wiggins

and Melvin Brunetti, Circuit Judges

Opinion by Judge Brunetti: Dissent by Judge Pregerson

OPINION

BRUNETTI, Circuit Judge

BACKGROUND

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

invented a superior process for polishing aser mirrors. By

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

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

marketing their laser mirrors national} and exploring

international markets.

In January 1976, the Spawrs accepted an order from a

purchasing agency of the Soviet Governnent. 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 bdance ol 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 receivec 2 second Soviet

order. Walter decided to seek an export licerse 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. Ot October 7, 1976,

the Secretary of Commerce (“Secretary”) dened the application,

having determined that the Spawrs murrors were included on the

Commodity -Control List (‘CCL™ y. | aid that they had

1 The CCL. established by the Secretary pursuart to 50 App Use

§2403(b) and §2404(c), “specifies the goods subject 0 export controls and

the group of countries to which exports of certain poducts are restricted

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

exporter can determine whether a particular shipmett of goods requires a

validated license or not.” United States v. Molier-tutcher 360 F. Supp

$50. 552 (D. Mass. 1983); see IS C.F.R. $399.1

da

“significant strategic applications” posing a potential threat to

national security.

In November. because of their inahility ta ohtain an

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 tnal, 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

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

“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 1969, Pub. L. No. 91-184, &3 Stat. 841, 844

("1969 Act”), formerly SO 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 §S(b) of the Trading with the Enemy Act, ch. 106, 40 Stat. 411, 4, 5

(1918) (codified as amended at SO App. U.S.C.§5(b)), which maintained

the 1969 Act regulauons in force until the 1969 Act could be reenacted.

>The 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

_ nica Con

5

a

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 tnal 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

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

reasons as its earlier denial.4

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.

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

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

court’s Order Denying Defendants’ Mouon for Reconsideration of Order

6a

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 /6 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 1s

sufficient custody to confer jurisdiction. See Wright v. United

States. 732 F. 2d 1948, 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

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

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.

7a

1190 (9th Cir. 1980), cert. dented, 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 18 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 petitioners

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.>

(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, 1t is evident that

collateral consequences of the Spawrs’ convictions sull remain

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

Spawrs are unable to receive government contracts until 199]

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). As a

result. this $2255 motion is still viable under Carafas and

Stbron.

As a final matier, 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:

SThese Supreme Court decisions involved petitions for habeas corpus anc

not §2255 we Nevertheless, this court's decisions in Hearst, 63% F

Id at 1192 n. 1. and Courtney, 486 F. 2d at 1109 n. 1, clearly e »stablish

that Carafas a its progeny apply with bee force to $2255 motions

8a

(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 1s 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

941:507 at 594 (1983). Beyond its request for dismissal due to

delay, the government makes no showing or prejudice.

Therefore, its request 1s denied.

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 tnal errors. The government

claims that the Spawrs have done neither.

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

Court capsulated the law concerning the availability of habeas

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

Stated the general rule that "the writ of habeas corpus will not be

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

acknowledged an exception for errors of constitutional

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

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

exception to exceptional circumstances for which no reasonable

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

183-84.

9a

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. /d. 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. /d. at 220 n. a

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

Court once again affirmed the foregoing principles with one

exception. It distinguished 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 !S

constitutionally based, either on the Fifth or Sixth Amendment.

Thus, the general rule that claims cannot be raised initially ina

$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

ee

10a

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 tnal.

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.”

In 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 vy. 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

immateniality. See Bagley. 473 U.S. at 679-80 n. 5S.

lla

The second claim is based on another allegation of

prosecutorial misconduct. The Spawrs assert that during the

course of the tnal, 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

a ey 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 ape an export license. The claims can only be

material if this licensing issue was in controversy during tnal

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.

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 distnct court's holding

The Spawrs do challenge the c

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

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

determining which items should be included on the CCL at any

y >r) f R he tn llenoe the dictmertc - Aericy > ty

eiven time. atner. they cCnalienge the district COUITS Gecislor )

defer to the Secretary's determination that their mirrors were

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

Mhes: rrrancréeanr tat c's fatter Gee riiindtiOn TApdacts 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.

It1s beyond dispute that the export of commodities 15 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, 1s

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

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 1s 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 §%,

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

r } |

by by co if ret NY ay,

hall be final and | IOUS CC ()

rien? rm tne 1? r! cee ¢ +} > f

MIC Ti it 1] bali la} ( ()) ne WwW

C CAp 1Pht?’ CQoud iid Aus j

. ~ , ane

Y f/f

rime () AN DD [ | 4') lt) )

] S A C ( “e -

ing ~f A nr . . \

. i) AADD | ) (Dd)

. > , r y i » ; >

[hese provisions make It

? r ? ? ts> , “i rercy ,* +

Lidl 1LULC OT LhdaliOrs

'

. froore ricleer | + taney tr

yu ) | 171 | i> Ww

> or Of -r ting t thar yer r tr

; yi s i | i 4 ' >» bt 4

if (7 GeCril tS ad iO1it'

'

f ir +} y try ce “ retar

i J i tai

r ry r ’ { rye \t rhs -yrT\

i ) (oul | ; LG yt)

. ) ‘ . » ‘ . ;

I ‘@) T rie rl

—— ; . > matter f . [}

iil | A 1 ih1aG ‘Ji 1 VV i

, nriepnenrtient! at tr ’ ’

| j | ChMaci ly | ld | i]

‘ LK go noiare ,ak rv, h ¢

» ) Ond d TedASONAD I LOUD

Lwen vr, the ("| nei there

in UUICU til ( i if} i i

rement deo , oe the oor no

1 ¢ a £3 tus Pisiils )

harced ttence the Q\nawyr are

il 8 4° di iis ‘5 i »VJawWwi ai

aht + rx ty 7 Kn « lot

rie nt Od ul Tld y QCICI

rrmir t1 2 tt r om the Ke

rmindation R: LMC] IVC! I YC

> + Y + rv" > » +} ¢ +¢

Ȣ WON mu DrOV 6) y Na

+ + j

oy he ners ars er

MIU i ssai y ii j

At tery the rictr + y + ,

ii ea Wi dui si A

trTY ' nour tr teri the 1 <

Imonyvy anc IMSUUCtCU ii

an hatti ip I+ trheret re rao

P¥LLIS IsSUC i 1S biG TC (JIL SoG

] } 1 +b kK |

mNnalis , raeprec | rom akila

Cinalliy CONSIQCTICQ sdalld C

+3 " '

va! th ss th ' »erl + r r > nm rt

f f fa) PP r ‘

yi s lid si tw (| dal ~—p. )¢

+ 1 | ] a ] > 1 ? >

aolisned CONCIUSI Ve! y«

>» > , » ARF > x

SS U m Ltd) i

l4a

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.

| 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

disagree, 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

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

15a

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 cnminal trial 1s

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 violaton.

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 the CCL - a question of fact -

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

on the list - a questions of advisability:

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

eee ee

l6a

+o 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

CX.

The majority concludes that “when the Secretary has

issued a license or order, the factfinder 1s instructed to accept tt

4s Jaw. 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 ata 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 1ssue

licenses accordingly.

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

‘nfirmities. 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 convicuon

except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he 1s charged.’ );

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

17a

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

the overriding presumptuon of innocence and would invade the

factfinding function assigned solely to the jury in 4 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 1s an

essential element of the offenses allegedly c ymmitted by them

It was for the jury, not the Secretary o! Commerce, to determine

whether the Spawrs’ laser mirrors were in fact an Item listed on

the CCL

Accordingly. I respectfully dissent

l8a

APPENDIX C

United States District Court

Central District of California

United States of Amenica, )

) CV 85-3193-WMB

Plainuff, ) CR 80-789-WMB

)

V. )

) ORDER DENYING

Spawr Opucal Research, Inc., } DEFENDANT'S

Walter J. Spawr and Frances ) MOTION FOR RE-

Spawr, ) CONSIDERATION

Defendant's ) OF ORDER

) DENYING SECTION

) 2255 MOTION

)

i. FARIS

Walter and Frances Spawr, and their corporation, Spawr

Optucal 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 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. The Ninth Circuit

affirmed their convictions in United States v. Spawr Optical

Research, Inc., 685 F.2d 1076 (1982), cert. denied, 46] U.S. 905,

103 S. Ct. 1875 (1983).

19a

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 nght 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 prosecuuon

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 ments.

II. DISCUSSION

Local Rule 7.16 sets forth three grounds for which a

court may reconsider a mouon: "(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

20a

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, 195 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, 99 S. Ct.

2la

1057 (1979) (inadvertence 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

inadvertence or ignorance, "a lesser showing of incompetency

of counsel should be sufficient for ‘cause’ " /d. 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 1s

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 \

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 1s analyzed

under the Sixth Amendment or the “inadvertence or ignorance

standard. the Court necessarily assesses the merits of the

petition. If the challenge 1s 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 view ed

’

22a

as unreasonable or incompetent. If the challenge 1s mentorious,

competent counsel would have made it, absent equally

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, tral, and post-

tal.

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 now refused

23a

-

to testify. Colonel Saito has filed a declaration stating that he

was never contacted 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

‘nformation 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 ol

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

‘< 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

‘< not on the List, or should be on the List, were not questions

which went to jury. Consequently, the expert testimon of the

Spawrs proffer here would have had no appreciable effect on

the outcome of the case

24a

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 tnial. United

States v. Samaneo, 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 1ssue

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

impermissible 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 1s 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 1s not on the List, but Mr. Wu failed to turn over

25a

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, 83S. Ct. | 194

(1963), the suppression by the prosecution of exculpatory

evidence violates due process of law where the evidence 1S

material to guilt or punishment, regardless o! 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 otl

ler

erounds 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 considered exculpatory because both o

experts’ opinions go to the question of whether the Spawrs

laser mirrors are on the List. Defendants admit as much wher

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 1s 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,

cannot be said that defendants have suffered any actua

prejudice because this evidence was not before the Cou

These grounds are insufficient for the relief defendants request

(h) Intentional misrepresentation to the Court

Defendants assert that the prosecution intentional

hota Pae ; ar ae ye ae eye,

submitted the wrong List to the Court. and tne Court faried to

26a

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.

As

—

ee re

) oslgnature f

if

Wm. Matthew Byrne, Jr

United States District Judge

28a

APPENDIX D

United States Court of Appeals

For the Ninth Circuit

United States of America, ) No. 87-6272

Plainuff-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.

29a

APPENDIX E

TITLE 50, APPENDIX - WAR AND NATIONAL

DEFENSE

§§ 2401 - 2413

EXPORT REGULATION

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

* * e

§ 2403. Authority to effectuate policy

e * x

(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

Ih cae

304

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

secunty 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 shall 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,

including 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

——

3la

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

9401 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 more than

five years, OF both.

(b) Export to Communist-dominated naticas;

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 vears, or both.

* * *

32a

~

§ 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 x

33a

APPENDIX F

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 9.5 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 (it) an energy

output not exceeding 2 joules per pulse; (e) CO2 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 (ili) 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. )

34a

APPENDIX G

i> ‘¢..P ee e

Interpretation 29: General Industrial Equipment

The commodities listed below require a validated license for

export to Country Groups S and Z.

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

following only:

Abrasive circulators

Abrasive-coating

Accumulators, hydraulic

Aerators

Agncultural 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

35a

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

Calendenng machines and simuiiar 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

36a

Flame arrestors

Floor finishers, sanders, scrubbers, and surfacers, industnal

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 surface 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-centnfugal

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

37a

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

Metallurgical, 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

Photopminters, n.e.s.

Pin ticketing (tag-to-produci applying)

Pipe line cleaning!

Plastic working, Nn.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

38a

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 industnal vehicles, n.e.s., nonmilitary,

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

asphalt mixers, seismograph thumper mounted trucks,

mune 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 raking

Surveying, hydrographic, meteorological, ihe cele 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

39a

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

40a

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",

“o> Ee ¥ > Ms ©, O08 2. Eiseee OGlew ae 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 S

Libya

* ~ *

Country Group Z

Cuba

Kampuchea

North Korea

Vietnam

dla

APPENDIX H

[NITED STATES DEPARTMENT OF COMMERCE

International Trade Administration

Washington, D. C. 20230

July 2, 1987

Mr. 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 o!

July 1, 1987 with Ms. Toni Jackson regarding the March 9, 1987

Freedom of Information Act (FOIA) request submitted by your

t Walter J. Spawr

lune 30. 1987. the Office of Export Enforcement forwarded

to this office documents it located in response to Mr. Spawrs

request. These documents are classified and must undergo a

declassification review to determine what, if any, information ma}

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

will involve review within the Department of Commerce, as well

as consult

ation with other agencies

The documents relate to export license application 209559

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

The application was for the export of fourteen copper laser

mirrors. merits at $31.842.50 to the Physics Institute, University,

42a

Moscow, 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 recommend denial of the applicant

October 4, 1976.

| hope the above information 1s 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

43a

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: [L.-1522; prior COCOM clearance 1s 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/cm2

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 1n

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 programs (the intended

end use i> this case). DOD is also utilizing these mirrors in

some classified high energy programs.

44a

LICENSING HISTORY

The reference OC document concermed 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 Techneque 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 CO2

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

availability. COCOM approval will be secured prior to licensing.

45a

APPENDIX I

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. |

append hereto a summary of my experience,

accomplishments and publications, 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 to be an

expert witness for the prosecution in the subject case.

2. It 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 the 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 molybdenum laser mirror which he stated

was the type of mirror allegedly exported by defendant

Walter Spawr. I later learned that this was not the type of

mirror which SPAWR had been alleged to have exported.

| informed Mr. Wu that I was completely familiar with the

equipment Mr. Spawr regularly manufactured and was

accused of illegally exporting, and that the Spawr and

similar mirrors were in widespread use.

doa

4. | also told Mr. Wu that, while employed as a Chiet

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. |

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. [ also 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 manufactured 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 | 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

dlistgrting 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.

> | waited outside the courtroom several hours, but was

never called to testify, and I was eventually excused.

47a

| solemnly declare and affirm under penalty of

perjury that the information in the foregoing declaration

IS true and correct.

{Signature ;

Alan E. Hill

48a

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

CCL-59

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

Mey 611 QSTVWYZ 500 500 O R and dye lasers

with both of tic following characteristics: (1) an output

wavelength shorter than 0.8 microns, and (11) 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:_ (1) 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 éxceeding 120 watts; (c) helium-neon lasers

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

ruby-lasers with both of the following characteristics: (1)

an output wavelength shorter than 0.8 microns, and (Ii)

an energy output not exceeding two joules per pulse; (e)

CO> lasers with all of the following characteristics: (i) an

output wavelength in the range of nine to eleven microns,

(ii) a pulsed output not exceeding two joules per pulse

and an average or continuous wave maximum rated

output power not exceeding 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.c.c.

(specify by name and model number. )

49a

APPENDIX J

136 CONGRESSIONAL RECORD H3281

(Daily ed. June 6, 1990)

Mr. HORTON. Mr. Chairman, I rise along with the

entleman from California [Mr. MCCANDLESS] to engage the

gentleman from Connecticut [Mr. GEJDENSON] and the

gentleman from Wisconsin [Mr. ROTH] in a colloquy.

Mr. Chairman, as you know | am concerned that, since the

decision of the U.S. Court of Appeals for the Ninth Circuit in

Spawr Optical Research, Inc. v. United States, 864 F.2d 1467

(1988), there is no longer a clear nationwide rule governing the

burden of proof the U.S. Government must prove in criminal

prosecutions under the Export Administration Act. I understand

that you have included an amendment in H.R. 4653 which would

make it completely clear that the U.S. Government is required by

jaw to prove that the commodity that was exported was, in fact,

listed by the Secretary of Commerce on the Commodity Control

List at the time of export. Is that correct?

Mr. GEJDENSON. Yes. As we stated at page 17 of the

House report on H.R. 4653:

The committee believes that it is for the Government to prove

that the item exported was on the commodity contro] list at the

time of export.

Mr. HORTON. Mr. Chairman, am I correct that the Export

Administration Act requires the Government to prove beyond a

reasonable doubt that:

First, the commodity in question has, in fact, been listed by

the Secretary of the commodity control list -- thus creating the

legal requirement to obtain a validated license prior to export,

Second, the commodity was exported without obtaining such

a license: and

a9

S0a

Third, that the exporter intended to export the commodity?

Mr. GEJDENSON. Yes. That is a correct statement of what

the act requires. This amendment is intended to clarify what the

Export Administration Act has required since its original

enactment.

Mr. HORTON. Mr. Chairman, I would ask the ranking

member, the gentleman from Wisconsin [Mr. ROTH], if he

agrees with those responses?

Mr. ROTH. Mr. Chairman, I agree with the gentleman from

Connectucut | Mr. GEJDENSON].

Mr. McCANDLESS. Mr. Chairman, will the gentleman from

New York [Mr. HORTON] yield?

Mr. HORTON. I yield to the gentleman from California.

Mr. McCANDLESS. The individuals mentioned by the

gentleman from New York, the Spawrs, are constituents of mine,

and I have closely followed their cases.

The legislation before us wil! serve to clarify a number of

issues, including Whether or not the Government is required to

prove that @ exported commodity was in fact listed by the

Secretary of Commerce on the commodity control list at the time

it was exported.

It is my understanding that such was Congress’ intent to

require such proof, but the Ninth Circuit Court of Appeals ruled

to the contrary in Spawr Optical Research versus United States.

My question is this. Is the chairman satisfied that H.R. 4653

will make it clear that it was Congress’ intent that, in

prosecutions under the act, the Government is required to prove

that an exported commodity was on the commodity control list at

the time it was exported?

Mr. GEJDENSON. Yes. The committee report on H.R.

4653 makes it explicitly clear that it was and is Congress’ intent

to require the Government to provide in criminal prosecutions

under the act, that the commodity in question was in fact listed on

the commodity control list. If a commodity was not listed, it

would not Be a crime under the act to export it without a license.

-

Sla

APPENDIX K

137 CONGRESSIONAL RECORD H8728

(Daily ed. October 30, 1991)

Mr. HORTON

Mr. Chairman, I would like to engage the chairman of the

subcommittee, the gentleman from Connecticut [Mr.

GEJDENSON}, in a colloquy.

Mr. Chairman, on June 6, 1990 we discussed the problem

that was created with respect to the Export Administration Act by

a decision of the U.S. Court of Appeals for the Ninth Circuit in

Spawr Optical Research, Inc. v. United States, 864 F.2d 1467

(1988). The problem is that since this judicial decision there is

no longer a clear nationwide rule governing the burden of proof

the L.S. Government must sustain in criminal prosecutions

under the Export Administration Act. In that colloquy on June 6,

1990, it was agreed that the coyrt of appeals for the ninth circuit

had misapprehended the Export Administration Act requirement

that the U.S. Government must prove that the exported item was,

in fact, listed by the Secretary of Commerce on the commodity

control list, thus creating the legal requirement to obtain a

validated license prior to export.

In your position as chairman of the Subcommittee on

International Economic Policy and Trade of the House

Committee on Foreign Affairs, is this your understanding of the

law.

Mr. GEJDENSON. If the gentleman will yield. that is

correct.

Mr. McCANDLESS. Mr. Chairman, will the gentleman

viel]

vated

Mr. HORTON. I yield to the gentleman from California.

2a

an

Mr. McCANDLESS. I would like to add that Federal courts

in the first and eighth circuits have issued decisions which

enunciate the legally correct interpretation of the Export

Administration Act. For example, in United States v. Gregg, 829

F.2d 1430, 1437 (8th Cir. 1987) the eighth circuit clearly stated

“when the case gets to court, all the government needs to prove

is that the item exported appears on the munitions list or the

commodity control list, as the case may be, that the defendant

knowingly and willfully exported it, with the necessary intent and

knowledge, and without the appropriate license.” The same rule

applies in the first circuit, United States v. Moller-Butcher, 560

F.Supp. 552-553 (D. Mass. 1983).

In an earlier colloquy, Chairman GEJDENSON made it

explicitly clear that these cases have properly interpreted the

Export Administration Act. He stated that the report on H.R.

4653 makes it explicitly clear that it was and is Congress’ intent

to require the Government to [prove] in criminal prosecutions

under that act, that the commodity in question was in fact listed

on the commodity control list. If a commodity was not listed, it

would not be a crime under the act to export it without a license.

Mr. Chairman, 1s this still the gentleman’s understanding of the

law.’

Mr. GEJDENSON. Mr. Chairman, if the gentleman from

New York will yield; yes it is.

Mr. HORTON. Finally, as I did in our earlier colloquy on

this issue I would like to note that the ninth circuit has issued yet

another decision which aggravates the problem. On September

14, 1990, the Court of Appeals for the Ninth Circuit in a case

styled United States v. Mandel, reaffirmed the Spawr decision as

the controlling precedent governing the burden of proof the U.S

Government mus: prove in criminal prosecutions under the

Export Administration Act.

Under the Spawr decision, the ninth circuit held that the U.S.

Government need not prove beyond a reasonable doubt that the

commodity in issue had been listed on the commodity control list

3a

5

and therefore was subject to the export licensing requirement.

Mandel reaffirms the Spawr holding and explicitly reiterates that

judges and juries must accept without question the U.S.

Government's allegation that the Secretary of Commerce had

listed the commodity on the commodity control list prior to the

export of the commodity.

We cannot continue to allow the proliferation of the Spawr

decision to wreak havoc on our export trade and the free

exchange of technical and scientific ideas. It is clear that the lack

of a uniform national standard concerning the burden of proof in

criminal prosecutions under the Export Administration Act

adversely impacts the dissemination of scientific information,

creates a chilling effect on the free exchange of ideas, and

impairs our export trade. I have been contacted by scientists and

exporters urge Congress to clarify this matter and to reestablish a

uniform nationwide rule. I reiterate that the Optical Society of

America believes that the Spawr decision has created an

intolerable situation and urges Congress to establish a uniform

national rule, namely, the Gregg rule, and to repudiate the

misinterpretation of the law by the ninth circuit in the Spawr

decision.

Subsequent to our colloquy in this matter, Congress passed

legislation which would have extended the Export Administration

Act with amendments not germane to this problem. The

President vetoed this legislation for reasons that, again, are not

germane to this problem. The status quo ante under the Export

Administration Act is now maintained by Executive order.

Whether the Export AU@nfinistration Act is kept in force by

Executive order or extended legislatively, the problem remains

that the ninth circuit has misapprehended that law. In the interval

“since our earlier colloquy it has come to my attention that yet

another case has been decided by a Federal district court in the

ninth circuit in which the Spawr case and the Mandel case are

treated as the law of the circuit. I refer here to United States v.

Adelkadar Helmy at 712 F. Supp. 1423 (E.D. Calif. 1989). Does

54a

the gentleman from Connecticut join us in the desire to see the

ninth circuit remedy the problem created by the Spawr case?

Mr. GEJDENSON. Mr. Chairman, | join the gentleman

from New York and the gentleman from California in calling on

the ninth circuit to reverse itself and thereby join in the uniform

"national rule established by the Gregg and Moller-Butcher cases

which correctly interpret the intent of Congress.

55a

APPENDIX L

136 CONGRESSIONAL RECORD H12778

(Daily ed. October 26, 1990)

* *K *

Mr. HORTON. Mr. Speaker, I rise along with the gentleman

from California [Mr. MCCANDLESS] to engage the gentleman

from Florida [Mr. FASCELL] and the gentleman from Wisconsin

[Mr. ROTH] 1n a colloquy.

Mr. Speaker, may I ask the chairman, as I indicated in a

previous colloquy on June 6, 1990, I am concerned that since the

decision of the U.S Court of Appeals for the Ninth Circuit in

Spawr Optical Research, Inc. v. United States, 864 F.2d 1467

(1988), there is no longer a clear nationwide rule governing the

burden of proof the U.S Government must prove beyond a

reasonable doubt in criminal prosecutions under the Export

Administration Act.

In the previous colloquy, may I say to the chairman, both the

chairman and the ranking member, the gentleman from

Wisconsin [Mr. ROTH] agreed that since its enactment the

Export Administration Act has required the Government to prove

beyond a reasonable doubt in such prosecutions that:

First, the commodity in question had been listed by the

Secretary of Commerce on the Commodity Control List prior to

export -- thus creating the legal requirement to obtain a validated

license to export;

Second, that the commodity was exported without obtaining

such a license; and .

Third, that the exporter intended to export the commodity.

This is the established nationwide rule articulated in United

States v. Gregg, 629 F2d 1430, 1437 (8th Cir. 1987) and

followed in other circuits until the Spawr decision in 1988.

56a

In the period since our colloquy, | say to the Ninth Circuit

has issued yet another decision which aggravates the problem.

On September 14, 1990, the Court of Appeals for the Ninth

Circuit in a case styled United States versus Mandel, reaffirmed

the Spawr decision as the controlling precedent governing the

burden of proof the U.S. Government must prove in criminai

prosecutions under the Export Administration Act.

Under the Spawr decision the Ninth Circuit held that the

U.S. Government need not prove beyond a reasonable doubt that

the commodity in issue had been listed on the commodity control

list and therefore was subject to the export licensing requirement.

Mandel reaffirms the Spawr holding and explicitly reiterates that

judges.and juries must accept without question the U.S

Government's allegation that the Secretary of Commerce had

listed the commodity on the Commodity Control List prior to the

export of the commodity.

Mr. Speaker, I say to the chairman, the proiiferation of the

Spawr decision is beginning to produce devastating effects on

our export trade and the free exchange of technical and scientific

ideas. I have letters from well-known scientists and scientific

societies and important exporters who assert that this lack of a

uniform national standard concerning the burden of proof in

criminal prosecutions under the Export Administration Act

adversely impacts the disseminating of scientific ideas, creates a

chilling effect on he free exchange or technical information and

ideas, and impairs our export trade. All of these scientists and

exporters urge Congress in the reauthorization of the Export

Administration Act to clarify this matter and to reestablish a

uniform nationwide rule. To cite but one example, the Optical

Society of America, the largest society in the world devoted to the

scientific and technological applications of light, publishes five

journals throughout the world dealing with advanced technical

subjects and conducts numerous international conferences. The

Optical Society believes that the Spawr decision has created an

intolerable situation and urges Congress to establish a uniform

S7a

national rule, namely the Gregg rule, and to repudiate the

misinterpretation of the law by the Ninth Circuit in the Spawr

decision. I say to the chairman, I believe there is complete

agreement in both Houses that there must be a clear, uniform

national rule and that it is up to Congress to clarify the situation.

Mr. Speaker, I would ask the chairman, now that the

conference between the House and Senate on the reauthorization

of the Export Administration is concluded, what is the status of

the problem?