United States v. Chi Mak
2012 U.S. App. LEXIS 12671
| 9th Cir. | 2012Background
- Mak was convicted by a jury of conspiring to violate the AECA and attempting to export defense articles to China based on two documents (QED and Solid State) found on seized material.
- The documents fell within USML Category VI, implicating technical data and licensing requirements under ITAR; public-domain status was central to willfulness.
- Post-trial, Mak moved for a new trial challenging the government’s late disclosure of an expert and the AECA’s vagueness; the district court denied relief.
- The district court instructed the jury on technical data and public-domain exceptions, and defined willfulness for the AECA, including reliance on totality of circumstances.
- Mak appealed, challenging First, Fifth, and Sixth Amendment claims and an Ex Post Facto claim, arguing improper instructions and vagueness.
- The Ninth Circuit affirmed, holding the AECA/ITAR are content-neutral and constitutionally valid, and that jury instructions adequately addressed technical data, willfulness, and related defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment challenge to AECA | Govt argues AECA is content-neutral and furthers national security. | Mak argues AECA restrictions are content-based and overbroad; violate free speech. | AECA is content-neutral; satisfies intermediate scrutiny. |
| Technical data and public-domain instructions | Government must prove information is not in the public domain to be technical data. | Instructions improperly relieved the government of proving non-public-domain status. | Instructions properly separated elements and adequately excluded public-domain information. |
| Willfulness instruction and Sixth Amendment defense | Government's willfulness burden preserved defendant's ability to present a complete defense. | District court denied meaningful opportunity to contest willfulness. | No plain error; defense was preserved and evidence supported willfulness finding. |
| Ex Post Facto Challenge | Post-arrest certification of documents expanded criminal conduct. | Prosecution violated Ex Post Facto by retroactive application. | No Ex Post Facto violation; documents were covered by USML at the time of offense. |
Key Cases Cited
- United States v. Posey, 864 F.2d 1487 (9th Cir. 1989) (national security interest in regulating arms data)
- United States v. Edler Indus., Inc., 579 F.2d 516 (9th Cir. 1978) (government power to regulate arms export includes control of related information)
- Konigsberg v. State Bar, 366 U.S. 36 (U.S. 1961) (content neutrality analysis for speech regulations)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (content-neutral regulations subject to intermediate scrutiny)
- Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001) (elements of export control violation under AECA; willfulness requirement)