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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 913

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2302%3A1. Public record. Not legal advice.