711 F.3d 1

United States Court of Appeals, First Circuit.

UNITED STATES of America, Appellee,

v.

ZHEN ZHOU WU, a/k/a Alex Wu, Defendant, Appellant.

United States of America, Appellee,

v.

Yufeng Wei, a/k/a Annie Wei, Defendant, Appellant.

Nos. 11–1115, 11–1141.

March 19, 2013.

Attorneys and Law Firms

Michael R. Schneider and Alan M. Dershowitz with whom Jeffrey G. Harris and Salsberg & Schneider were on brief for appellant Zhen Zhou Wu, a/k/a Alex Wu.

Nathan Z. Dershowitz with whom Amy Adelson and Dershowitz Eiger & Adelson, P.C. were on brief for appellant Yufeng Wei, a/k/a Annie Wei.

Stephan E. Oestreicher, Jr., Appellate Section, Criminal Division, Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Criminal Division, John D. Buretta, Acting Deputy Assistant Attorney General, Criminal Division, Carmen M. Ortiz, United States Attorney, B. Stephanie Siegmann and John A. Capin, Assistant United States Attorneys, were on brief for appellee.

Before LYNCH, Chief Judge, SOUTER,* Associate Justice, and SELYA, Circuit Judge.

Opinion

LYNCH, Chief Judge.

This case involves criminal laws meant to protect the security of the United States and rights guaranteed to criminal defendants by the Constitution.

In 1976, Congress passed the Arms Export Control Act (“AECA”), giving the President broad authority to regulate the shipment of defense articles to foreign destinations “[i]n furtherance of world peace and the security and foreign policy of the United States.” 22 U.S.C. § 2778 (2006). Three years later, Congress further authorized the President to restrict the export of “dual-use” technologies that serve both military and nonmilitary purposes. 50 U.S.C. app. §§ 2401(5), 2402(2)(A). Individuals who violate either set of export restrictions may be fined up to $1 million and imprisoned for up to 20 years. 22 U.S.C. § 2778(c); 50 U.S.C. § 1705(c). The resulting regulatory scheme is intricate, in order to combat the sophisticated weapons dealers whose activities undermine U.S. interests.

The case at hand involves two defendants prosecuted and convicted on charges of violating restrictions on the overseas shipment of weapons-grade technologies. From 1996 until 2008, Zhen Zhou Wu and Yufeng Wei shipped tens of millions of dollars worth of sophisticated electronic components from the United States to China, with little regard for whether the parts that they sold were export-controlled. On appeal, Wu and Wei launch a broad-based attack on the federal government's arms export control system—a regulatory scheme that, they say, violates the Fifth Amendment's Due Process Clause. We reject this attack. However, on two counts of conviction, charging Wu and Wei with exporting items restricted under the U.S. Munitions List, we find that the district court erred in its instructions by not submitting to the jury an element of the offense—an error that violated the defendants' Sixth Amendment right to a trial by jury and has not been shown to be harmless. Accordingly, we affirm Wu's conviction on 15 of the 17 counts, affirm Wei's conviction on 11 of the 13 counts, and vacate the convictions of each defendant on two counts. We remand for resentencing.

I.

A. Background

Zhen Zhou Wu and Yufeng Wei, both Chinese nationals, married in China in 1988. Afterward, they each pursued graduate degrees in the United States. In 1996, Wu returned to China to found the Chitron Electronics Company Limited in Shenzhen (“Chitron–Shenzhen”). Chitron–Shenzhen served as an electronic-parts broker, purchasing components from international suppliers and then selling them to customers in China. It specialized in military and industrial parts.

The same year that Wu founded Chitron–Shenzhen, he also opened a branch purchasing office for the company in Massachusetts called “Perfect Science and Technology” and employed Wei to run the office. Wei ran Perfect Science as a sole proprietorship under her own name. In early 1998, Wu incorporated the office as “Chitron Electronics, Inc.” (“Chitron–US”), with Wu as the corporation's president and Wei as its business and finance manager. Throughout this period, Wei oversaw the purchase of parts from vendors in the United States and the shipment of those parts to Chitron's customers in China. Wu and Wei divorced in 1999, although their working relationship continued throughout the period covered in the indictment.

Wu oversaw the business from Shenzhen. Once a year, he traveled to the United States to visit the Chitron–US office, and he remained in daily contact with Wei throughout the year, coordinating the activities of Chitron–US through electronic tasking lists and an online database system. Meanwhile, Wei worked as office manager of the Chitron–US branch, a role she served in until 2007, when Stephen Gigliotti took over that position. By that time, Chitron had five offices—three in China, one in Hong Kong, and one in the United States—and over 200 employees. Each year, the company purchased tens of thousands of parts, worth tens of millions of dollars, from dozens of U.S. suppliers.

Nearly all of Chitron's customers were located in mainland China. Before 2005, Chitron–US would ship orders to freight forwarders[FN1] in Hong Kong, who then repackaged the items and sent them along to Chitron–Shenzhen, where they were inspected and then finally sent to their ultimate recipients in China. In 2005, Chitron established its own one-room branch office in Hong Kong, staffed by a single part-time employee who traveled to Hong Kong a few days a week while working full-time in Shenzhen. Thereafter, Chitron–US exported parts directly to Chitron's Hong Kong office, which then forwarded the orders to Chitron–Shenzhen. Wu and Wei claimed that they shipped parts through Hong Kong because it was cheaper than sending them directly to China.

Before exporting parts from the United States, a Chitron–US employee—usually Wei—would prepare a “Shipper's Export Declaration” (“SED”), as required by the Commerce Department's Foreign Trade Regulations. See 15 C.F.R. § 30.2(a)(1); see also 13 U.S.C. § 301. Wei always entered the code “NLR” (“no license required”) on the forms to indicate that no export licenses were required for the goods that Chitron–US was shipping. Wei also listed “Hong Kong” as the “country of ultimate destination” for the parts, and entered the names of the freight forwarders—and later Chitron's Hong Kong office—as the parts' “ultimate consignee.”

How much Wu and Wei actually knew about the United States' export control regime was hotly contested at trial. Wu occasionally presented himself to customers as an export compliance expert with a specialty in military products. According to Chitron staff, for most of its history the company had no export compliance policy, nor did it give any compliance training to its employees.

Nevertheless, as early as 1996, someone at Chitron–US had printed out pages from the Commerce Department's Export Administration Regulations (“EAR”), 15 C.F.R. pts. 730–774, and placed them into a folder labeled “export” inside a box marked “Wu files.” Communications between Wu and Wei around this time also evidence that the two were aware of legal restrictions on the export of certain electronics to China. In April 1997, Wei told Wu in an e-mail that she had learned from United Parcel Service that she was required by law to obtain an export license in order to ship a certain part. That same month, Wei also told Wu that a vendor had refused to sell to her after she mentioned that her customer was in China, and that the “big lesson” from this “mistake” was to avoid providing “extra” information to vendors. Wu agreed, suggesting that Wei not tell suppliers that she sold parts to China, and later instructing that she should simply avoid telling suppliers that she exported parts at all.

Beginning in 2000, Chitron's lack of export licenses for its products became a bigger and bigger concern for the company. In 2001 and 2002, Maylyn Atkinson Murphy, a Chitron–US employee, repeatedly told Wu that vendors had begun to ask for “end user information,” such as where Chitron would be shipping the parts and whether those parts would be used with products that had military applications. In response, Wu explained to Murphy that his priority was to “get business done” while avoiding “trouble if the parts are really sensitive and defense related.” He told her that “[t]he key is to avoid submitting end user information and get the [p]arts ordered,” and suggested that if vendors asked her, she should tell them that she did “not know where the parts ship.”

In August 2002, Wei raised similar concerns with Wu: she said that she was worried about shipping a part that was “not for exporting [to] China” and that she feared there might be “some strict rule from [C]ustom[s] if they see the part number.” Wei suggested to Wu that she could instead enter a different part number on the shipping documents.

In June 2003, a vendor at an electronics trade show told Wei that she would be interested in doing business with Chitron “provided you guys can, you know, supply the export license[s]. You are supplying the export licenses, are[n't] you?” According to Murphy, Wei said “yes,” even though Chitron had never obtained, nor ever even applied for, an export license for any part. Wei later e-mailed Wu about the exchange, telling him that the vendor had “realized that we export most [of] their products to China,” that “all their items (or most) should have [a] license for exporting,” and that “they became susp[i]cious how we file the application or forms for exporting.” She warned Wu that it would be difficult to obtain parts from that vendor in the future, due to “exporting getting more strict, especially to China.”

As more and more vendors discovered that Chitron planned to ship parts to China, and as the vendors refused to sell to Chitron unless it obtained export licenses, Chitron–US staff—including Wei—began to note these so-called “problem orders” in the tasking lists. By 2005, vendors were telling Murphy “every day” that Chitron needed export licenses to ship the parts it wanted to China; Murphy would then relay these messages to Wei, who would inform Wu. Several Chitron–US employees raised concerns about export restrictions with Wei, especially those regarding the shipment of military parts to China, but according to the employees' testimony, Wei either “laughed them off” or accused them of “insubordination.”

In a 2005 performance review, Wu expressed disappointment that Murphy had failed to reach her “minimum purchases.” Murphy explained that it had been difficult for her to keep her numbers up “because a lot of our vendors require export licensing.” She left the company a few months later, in part because she “didn't think they were doing the right thing.” In 2007, Gigliotti attended a day-long informational meeting on export compliance, and he was “shaken up” by what he learned there about the liability he and Chitron could face for their past conduct. He called Wu that evening and told Wu that “we have to redo the entire workflow process in the company to make sure that we're abiding by the laws.” A few days later, Gigliotti met with Wu in person to discuss a proposal Gigliotti had drafted for how Chitron could ensure its compliance with U.S. export laws. Wu responded that Gigliotti was “overreacting” due to Gigliotti's “personal political beliefs,” that the export laws did not apply to Chitron because it shipped to Hong Kong rather than to China, and that Gigliotti's proposals would be too expensive and affect too much of Chitron's business.

When Gigliotti raised the issue with Wu once more in October 2007, Wu again accused Gigliotti of overreacting, emphasizing that Gigliotti's priority was to “keep the U.S. office running profitably.” Wu added: “I'm not afraid to go to jail. Are you?” Gigliotti quit the next day.

Only after Gigliotti's resignation did Wu implement some export compliance measures, which included a formal process for checking to see whether parts were export-controlled, export-law training for Chitron personnel, and the appointment of Chitron–US employee Bo Li as “compliance officer.”

B. Charges

In 2008, Wu and Wei were arrested and later indicted for 34 counts of export-related offenses. After a 23–day jury trial and various post-trial motions, the two were ultimately convicted as follows:

-The Munitions List Counts: Both Wu and Wei were convicted on two counts for, on two occasions in June 2006, exporting to China without a license “phase shifters” that are designated as defense articles on the U.S. Munitions List, 22 C.F.R. pt. 121.

-The Commerce Control List Counts: Both Wu and Wei were convicted on seven counts, and Wu was convicted on five additional counts, for, on various occasions between May 2004 and May 2007, exporting to China without a license electronic converters that are controlled under the Commerce Control List, 15 C.F.R. pt. 774.

-The Conspiracy Count: Both Wu and Wei were convicted under 18 U.S.C. § 371 on one count of conspiracy to violate both the Munitions List and Commerce Control List restrictions.

-The SED Counts: Both Wu and Wei were convicted on two counts for conspiring to file materially false Shipper's Export Declarations with the Commerce Department by misstating the ultimate recipients and destinations of their exports, in violation of 18 U.S.C. § 371, and for devising a scheme to falsify or conceal material facts in a matter within the jurisdiction of the United States, in violation of 18 U.S.C. § 1001(a)(1).

-The Immigration Count: Finally, Wei was convicted on one count for making material false statements in an immigration application, in violation of 18 U.S.C. § 1546(a).

Wu and Wei were acquitted on several additional counts. Wu was sentenced to 97 months in prison, and Wei was sentenced to 36 months.

II.

A. Munitions List Counts

On the Munitions List counts, the prosecution alleged that Wu and Wei twice unlawfully exported “phase shifters”[FN2] to China without a license. See 22 U.S.C. § 2778(b)(2); 22 C.F.R. pt. 121. Wu and Wei argue that the Munitions List convictions should be reversed because the Munitions List restrictions are unconstitutionally  vague. In the alternative, they argue that their convictions should be vacated because the jury instructions were fatally flawed.[FN3] We consider both arguments de novo. See Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir.2010) (jury instructions); United States v. Lachman, 387 F.3d 42, 50 (1st Cir.2004) (vagueness). We reject the constitutional vagueness argument, but we agree that the jury instructions were flawed and so vacate the convictions on the Munitions List counts. We address Wu and Wei's constitutional arguments inasmuch as they affect the scope of the remand. Compare Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (retrial barred by Double Jeopardy Clause if evidence supplied by the government would be legally insufficient to sustain conviction), with United States v. Urciuoli, 513 F.3d 290, 297 (1st Cir.2008) (new trial permissible where error is confined to jury instructions), cert. denied, ––– U.S. ––––, 131 S.Ct. 612, 178 L.Ed.2d 436 (2010).

Statutory and Regulatory Framework.

The Arms Export Control Act authorizes the President “to control the import and the export of defense articles.” 22 U.S.C. § 2778(a)(1). Under the AECA, the President may “designate those items which shall be considered as defense articles” and “promulgate regulations for the import and export of such articles.” Id. The President has delegated this responsibility to the State Department. Exec. Order No. 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977).

A designated “defense article” may not be exported from the United States without a license from the State Department. See 22 U.S.C. § 2778(b)(2). The AECA criminalizes “willful[ ]” violations of this export license requirement. Id. § 2778(c). The AECA further provides that the designation of an item as a “defense article[ ]” made via “regulations issued under [the statute] ... shall not be subject to judicial review.” Id. § 2778(h). Because the United States suspended munitions exports to China after the Tiananmen Square killings in 1989, the State Department will not grant a license to export defense articles to that country. See 22 C.F.R. § 126.1(a); Suspension of Munitions Exports to PRC, 54 Fed. Reg. 24,539 (June 7, 1989); see also United States v. Holmquist, 36 F.3d 154, 157 (1st Cir.1994), cert. denied, 514 U.S. 1084, 115 S.Ct. 1797, 131 L.Ed.2d 724 (1995).

Pursuant to the President's authority under the AECA, the State Department has promulgated the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. pts. 120–130, which include the U.S. Munitions List, id. pt. 121. The Munitions List is not a compendium of specific controlled items; instead, it is a series of categories describing the kinds of items that qualify as “defense articles” requiring export licenses. The Munitions List contains “attributes rather than names,” and for good reason. As has been explained:

[A]n effort to enumerate each item would be futile, not only because some are bound to be overlooked (imagine a regulation that tried to list all bicycles by manufacturer and model number) but also because manufacturers change their designations. The Mark 4 may be succeeded by a Mark 5, or the CQ/T model may become the CQ/X.

United States v. Pulungan, 569 F.3d 326, 328 (7th Cir.2009) (Easterbrook, C.J.).

A manufacturer unsure about whether a particular item is a “defense article” covered by the Munitions List may file a “commodity jurisdiction” (CJ) request with the State Department. The determination is made by the Directorate of Defense Trade Controls within the State Department, in consultation with the Departments of Defense and Commerce, as well as other government agencies and industry. See 22 C.F.R. § 120.4.[FN4] These CJ determinations are never officially published in regulations or other government pronouncements.

The specific phase shifters at issue in this case were both made by M/A–Com, formerly a subsidiary of Tyco Electronics, and bore the product numbers “MAPCGM0003” and “MAPCGM0002.” The government alleges that these phase shifters fell under Category XI(c) of the Munitions List. That category covers “[c]omponents, parts, accessories, attachments, and associated equipment specifically designed or modified for use with the equipment in [Categories XI(a) and XI(b) ], except for such items as are in normal commercial use.” 22 C.F.R. § 121.1(c)(XI)(c).[FN5]

Vagueness.

At the outset, we address the defendants' argument that this carefully crafted regulatory scheme—which has remained in place for more than a quarter century—is unconstitutionally vague. The Fifth Amendment's Due Process Clause requires that “a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal.” Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); see also United States v. Anzalone, 766 F.2d 676, 678 (1st Cir.1985). The “void for vagueness doctrine” addresses at least two discrete due process concerns: “first, ... regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television Stations, Inc., –––U.S. ––––, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012).

Wu and Wei emphasize only the first of these two concerns, and appropriately so, since Munitions List Category XI(c), when placed within its larger regulatory framework, sets forth reasonably precise standards for enforcement. To be within the reach of the Munitions List at all, an item must qualify as a “defense article,” a term defined by the ITAR with considerable specificity.6 Moreover, the particular Munitions List category at issue in this case—Category XI(c)—ties its coverage to Categories XI(a) and XI(b), which in turn contain specific examples of electronic systems and components covered by the ITAR. See supra note 5. And to ensure that the regulation does not ensnare unwitting exporters selling to non-military clients, Category XI(c) also explicitly excludes items “in normal commercial use.” 22 C.F.R. § 121.1(c)(XI)(c).

All together, this framework provides specific guidance that would allow individuals and law enforcement officials alike to determine whether the phase shifters fall within Category XI(c). At trial, both the government and the defendants presented expert testimony regarding the design and the use of phase shifters; on this basis the jury could have made discrete factual determinations on the matter. Granted, the evidence presented at trial could support alternative interpretations, yet “a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved.” Fox Television Stations, Inc., 132 S.Ct. at 2317. Here, it is quite clear what specific facts would determine whether the phase shifters fall within Category XI(c): whether they were designed for military use; whether they are used in conjunction with the items described in Categories XI(a) and (b); and whether they are also amenable to normal commercial uses that would take them outside the scope of the ITAR.

Wu and Wei have a somewhat stronger case when they emphasize that Category XI(c)'s broad language and lack of technical parameters do not give “fair notice” to a “person of ordinary intelligence” that phase shifters are Munitions List-controlled. Cf. id. at 2317. After all, as the defendants note, phase shifters are small, technologically complex microchips; unlike the bomb and ammunition parts at issue in other cases,[FN7] the phase shifters may not have a self-evidently military purpose in the eyes of an ordinary person.

But Wu and Wei are not just ordinary people sending gifts to friends living overseas. They managed a multimillion-dollar enterprise; their company, Chitron, specifically pursued military customers; and Wu promoted himself as both an exporter of military supplies and an export compliance expert. The export of military equipment in particular is a “sensitive business” directed by “a relatively small group of sophisticated international businessmen.” United States v. Lee, 183 F.3d 1029, 1032 (9th Cir.), cert. denied, 528 U.S. 990, 120 S.Ct. 454, 145 L.Ed.2d 370 (1999); see also United States v. Swarovski, 592 F.2d 131, 133 (2d Cir.1979). It is not too much to ask these businessmen and businesswomen to comply with export control regulations, even if the meaning of those regulations might not be immediately obvious to someone lacking the same sophistication. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (economic regulations are “subject to a less strict vagueness test because ... businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action”). Furthermore, the ACEA's implementing regulations establish the commodity jurisdiction determination process in order to allow private parties to obtain an official government answer on whether an item is covered by the Munitions List before they engage in potentially unlawful conduct, see 22 C.F.R. § 120.4, a feature that further mitigates any concern about the law trapping an unwary dealer. See Vill. of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. 1186; see also Lachman, 387 F.3d at 57; Lee, 183 F.3d at 1032.[FN8]

Finally, the AECA's scienter requirement covers only “willful[ ]” violations of the law's export restrictions. 22 U.S.C. § 2778(c). The Act does not “impose criminal penalties on innocent or negligent errors.” United States v. Davis, 583 F.2d 190, 193 (5th Cir.1978). Where a statute “explicit[ly] provi[des] that a criminal violation of its terms must be ‘willful,’ ” the void-for-vagueness doctrine is especially inapposite, see United Union of Roofers, Waterproofers & Allied Workers v. Meese, 823 F.2d 652, 659 (1st Cir.1987) (Breyer, J.), since the statute itself ensures that “good-faith errors are not penalized,” Harris v. McRae, 448 U.S. 297, 311 n. 17, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). By criminalizing only willful violations of the law, the statute's scienter requirement “protects the innocent exporter who might accidentally and unknowingly export a proscribed component or part.” Lee, 183 F.3d at 1032–33.

Outside the First Amendment context, we consider “whether a statute is vague as applied to the particular facts at issue,” for a defendant “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Holder v. Humanitarian Law Project, ––– U.S. ––––, 130 S.Ct. 2705, 2719, 177 L.Ed.2d 355 (2010) (emphasis added) (internal quotation marks omitted). We need only determine whether the AECA and its regulations were vague “as applied to these particular defendants”—in other words, whether Wu and Wei “in fact had fair notice that the statute and regulations proscribed their conduct.” United States v. Hsu, 364 F.3d 192, 196 (4th Cir.2004). And as the district court concluded, there was ample evidence at trial that Wu and Wei actually believed that the phase shifters required government licenses for export.

Before any of the exports at issue occurred, Chitron–US received a purchase order and later a price quotation from its supplier, Richardson Electronics; both documents warned Chitron specifically that the MAPCGM0003 phase shifter was subject to export control under the authority of the State Department, that exporting the item may require prior government approval, and that the phase shifter fell under Category XI of the Munitions List.

Chitron–US also received similar warnings in regard to the MAPCGM0002 phase shifter: first, from another supplier, Microwave Components, Inc., which sent Chitron a price quotation and later an invoice for the MAPCGM0002 phase shifters that included a disclaimer cautioning that exports may require prior authorization from the U.S. government and that it was the purchaser's sole responsibility to comply with U.S. export licensing requirements; and second, from Richardson Electronics, which sent Chitron a price quotation on the MAPCGM0002 phase shifters that included a warning that the part was subject to State Department export controls, that it may require prior government approval for export, and that it fell under Category XI of the Munitions List.[FN9]

The jury could infer that Wu and Wei were aware of these warnings. The two were “hands-on micro-managers,” Wei supervised the Chitron–US office and was involved in the day-to-day purchasing, and Wei communicated daily with Wu via tasking lists—all good reasons to attribute Chitron's knowledge to the defendants. Moreover, Wu and Wei repeatedly attempted to disguise the fact that they were exporting to China and that they lacked the necessary licenses to do so—further evidence that the defendants knew they were violating U.S. export regulations when they shipped the phase shifters to China without government permission. See United States v. Sasso, 695 F.3d 25, 29 (1st Cir.2012); United States v. Cranston, 686 F.2d 56, 62 (1st Cir.1982).

In sum, Wu and Wei cannot claim that they lacked “fair notice” of the Category XI(c) restrictions, and those restrictions are not so standardless as to allow for arbitrary enforcement. Accordingly, we hold that the Munitions List restrictions—as applied to Wu and Wei—are not void for vagueness. Accord Hsu, 364 F.3d at 196–98 (rejecting void-for-vagueness challenge to the Munitions List); Lee, 183 F.3d at 1031–33 (same); United States v. Gregg, 829 F.2d 1430, 1437 (8th Cir.1987)(same), cert. denied, 486 U.S. 1022, 108 S.Ct. 1994, 100 L.Ed.2d 226 (1988); Swarovski, 592 F.2d at 132–33 (same).

Jury Instructions.

Wu and Wei are on much stronger footing when they challenge the district court's instruction to the jury that it must accept without question the State Department's after-the-fact determinations that the phase shifters were controlled by the Munitions List. Wu and Wei argue that by removing from the jury the question of whether the phase shifters fell under the Munitions List, the instructions violated their right to a jury finding on each essential element of the crime.

As an initial rejoinder, the government claims that since the AECA precludes judicial review of defense article designations, see 22 U.S.C. § 2778(h), the statute also bars jurors from deciding whether a particular item identified as a defense article in a CJ determination actually meets the criteria of the Munitions List. The Seventh Circuit previously rejected this argument, observing that § 2778(h) only covers designations made “in regulations,” and that a CJ determination by the Directorate is “not in a regulation.” Pulungan, 569 F.3d at 328. However, the government urges us instead to follow the decision in Karn v. U.S Dep't of State, 925 F.Supp. 1 (D.D.C.1996), remanded on other grounds, 107 F.3d 923 (table), 1997 WL 71750 (D.C.Cir.1997) (per curiam) (unpublished opinion), which held that § 2778(h) does shield CJ determinations from judicial review. See id. at 5–6.

In this case, however, we need not decide the difficult questions of whether the provision's reference to “regulations” includes CJ determinations or certifications to courts, or whether the phrase “judicial review” applies to juries. Even if § 2778(h) does bar jury review of CJ determinations and/or certifications, there would be serious constitutional problems if we read that provision to render Directorate determinations issued after exports have already occurred as being retroactively dispositive as to the coverage of the Munitions List. Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Our concern is not whether the form of the designations sufficed, but the timing: the government may not decide for itself that some prior act by a criminal defendant violated the law, and thereby remove that determination from the province of the jury.

As of June 2006, the time of the exports in question, no official determination had been made as to the presence of the phase shifters on the Munitions List. Indeed, at the time there was disagreement even within the government as to the proper categorization of the phase shifters. The items apparently had some commercial utility, including in civilian aviation and cell phone technology. In February 2002, the Commerce Department issued Commodity Classifications concluding that the phase shifters were dual-use items covered by the Commerce Control List (which would indicate that they did not fall within the scope of Munitions List Category XI(c)). But in August 2003, the Defense Department's Tri–Services Committee verbally informed the manufacturer of the phase shifters that the items should be ITAR-controlled and thus under the authority of the State Department. This advice was never made public.[FN10]

It was not until December 2007, 18 months after Chitron exported the phase shifters in question, that the Directorate issued a CJ determination confirming that the MAPCGM0003 phase shifter fell within the coverage of the Munitions List. The Directorate never issued a CJ determination at all for the MAPCGM0002 phase shifter, but rather simply certified to the district court before trial, years after the export, that it was in fact covered by the Munitions List.

Nevertheless, at the conclusion of the trial, the district court, over the defendants' objections, instructed the jury that it should not consider “the appropriateness of the determinations made by the State Department” as to whether the phase shifters fell under the Munitions List. Instead, the court told the jury that it should only decide “whether the government has proved beyond a reasonable doubt that the Secretary of State determined that the charged parts were defense articles on the [Munitions List] at the time of export.”

To see why this instruction improperly wrested a key question from the jury, we go back to first principles. “In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.” United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980); accord United States v. Vilches–Navarrete, 523 F.3d 1, 21 (1st Cir.) (Lynch, J., and Howard, J., opinion of the court in part and concurring in part), cert. denied, 555 U.S. 897, 129 S.Ct. 208, 172 L.Ed.2d 168 (2008). To use a straightforward and familiar example: the crime of possessing an unregistered firearm, 26 U.S.C. § 5861(d), requires (1) that the defendant possessed an unregistered weapon classified as a “firearm” under the National Firearms Act (the actus reus ), and (2) that the defendant “knew of the features of his [weapon] that brought it within the scope of the Act” (the mens rea ). Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

In the ordinary course, the actus reus element will be easier to prove than the mens rea. The National Firearms Act says that a shotgun having a barrel of less than 18 inches must be registered, see 26 U.S.C. § 5845(a), and barrel length may be readily measured. Thus, in United States v. Shaw, 670 F.3d 360 (1st Cir.2012), it was uncontested that the barrel of the defendant's shotgun measured only sixteen and a quarter inches; the issue in dispute was whether the defendant knew that the barrel was shorter than the requisite length. Compare id. at 364 (majority opinion), and id. at 368–69 (Boudin, J., concurring), with id. at 376 (Lipez, J., dissenting).

But even where the evidence is sufficient to show the necessary mens rea, the government still must always “meet its burden of proving the actus reus of the offense.” United States v. Whiteside, 285 F.3d 1345, 1353 (11th Cir.2002). For instance, if a defendant mistakenly thinks that the barrel of his unregistered shotgun is shorter than eighteen inches when in fact it is longer than that length, he is innocent of the crime of possessing an unregistered firearm, even though he had the requisite guilty mind. Cf. United States v. De La Torre, 599 F.3d 1198, 1204 (10th Cir.2010) (government must “prove[ ] the defendant had the requisite guilty mind” and “prove the defendant did possess the particular controlled substance charged in the indictment”), cert. denied, ––– U.S. ––––, 131 S.Ct. 227, 178 L.Ed.2d 151 (2010).

Here, to convict the defendants of violating the AECA, 22 U.S.C. § 2778(c), the jury had to find not only that the defendants acted with the requisite mens rea (willfulness), but also that they actually committed the actus reus charged (violation of regulations issued under the statute). Put differently, even if the jury found that Wu and Wei believed that phase shifters fell within the Munitions List restrictions, it would still have to conclude that the phase shifters actually did fall within the Munitions List restrictions (regardless of Wu and Wei's beliefs). And as to whether Wu and Wei violated regulations issued under the AECA, the proper question for the jury was whether Wu and Wei's conduct violated the relevant regulations as those regulations existed at the time the conduct occurred. See Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (“The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.”).

In defense of the jury instructions, the government argues that the question of whether the phase shifters fall within the Munitions List is a legal issue not suited for jury determination. Cf. Sparf v. United States, 156 U.S. 51, 106–07, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (juries decide factual questions, not legal questions). In support, it cites to our cases construing the felon-in-possession statute, in which certain issues of law embedded in the definition of “prior conviction” (such as whether a former felon's right to carry a firearm has been restored) are denied to the jury. See, e.g., United States v. Bartelho, 71 F.3d 436, 440 (1st Cir.1995). Yet in Bartelho, we held that “a showing that the [defendant's] right to carry a firearm has not been restored is not an element of a [felon-in-possession statute] violation.” Id. at 439. By contrast, we have held that a showing that an exported item was on the Munitions List is an element of a § 2778 violation. See United States v. Murphy, 852 F.2d 1, 6 (1st Cir.1988). And in order to convict a defendant under a criminal statute, the government must prove each element of the offense to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also S. Union Co. v. United States, ––– U.S. ––––, 132 S.Ct. 2344, 2350, 183 L.Ed.2d 318 (2012).

This is not to deny that “Congress enjoys latitude in determining what facts constitute elements of a crime which must be tried before a jury and proved beyond a reasonable doubt and which do not.” Vilches–Navarrete, 523 F.3d at 20 (Lynch, J., and Howard, J.). But Congress has never said that a criminal defendant may be convicted on the basis of an ex post determination by a State Department official outside the regulatory process.

The government also invokes United States v. Spawr Optical Research, Inc., 864 F.2d 1467 (9th Cir.1988), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989), and United States v. Hammoud, 381 F.3d 316 (4th Cir.2004) (en banc), vacated on other grounds, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), both involving government designations that juries were required to accept. But crucially, in both cases the government designations at issue were made before the defendants' allegedly unlawful conduct occurred. See Hammoud, 381 F.3d at 331; Spawr Optical Research, Inc., 864 F.2d at 1468–69. To determine whether the defendants committed the charged actus reus by violating the laws as they existed at the time, the trial courts simply had to determine whether the prior designations had actually been made. See Spawr Optical Research, Inc., 864 F.2d at 1473; Hammoud, 381 F.3d at 331. In this case, no State Department designation had been made at the time that the defendants engaged in the charged conduct.

Perhaps it would have been possible for the prosecution to persuade the jury—beyond a reasonable doubt—that the phase shifters really did fall within the Munitions List restrictions as those restrictions stood at the time of the defendants' exports. For instance, the prosecution could have presented evidence that the phase shifters were designed for use with other Category XI equipment and that they were not in normal commercial use. 22 C.F.R. § 121.1(c)(XI)(c). Here, we only go so far as to say that under the existing statutory and regulatory scheme, the question of whether phase shifters were items controlled by Category XI(c) of the Munitions List was a question for the jury—not a question that could be decided ex post by the State Department as a matter of law.

We acknowledge that instructional error is not necessarily grounds for reversal, even when the error amounts to the complete omission of an element of the charged offense. As the Supreme Court has held, “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also United States v. Gerhard, 615 F.3d 7, 29 (1st Cir.2010). But here, the defendants did contest the prosecution's claim that the phase shifters fell within Category XI(c) of the Munitions List at the time of the export, thus making this case different from Neder. In any event, given the dissension between the State and Commerce Departments on this very matter, we cannot “conclude[ ] beyond a reasonable doubt ... that the jury verdict would have been the same absent the error.” Cf. Neder, 527 U.S. at 17, 119 S.Ct. 1827.

We also acknowledge that our holding means that in at least some cases involving Category XI(c) of the Munitions List, the question of whether a particular part fell within Category XI(c) of the Munitions List at the time of the alleged export will be a question for the jury. This is not out of the ordinary. Juries are “commonly called upon to decide complex cases.” Green Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.1993). These include highly technical patent and tax cases as well as cases concerning terrorism and espionage. So too, juries are capable of determining whether phase shifters are specifically designed for military use with the items listed in Munitions List Categories XI(a) and (b) and whether they are exempt from the restrictions due to “normal commercial use.” Although permitting juries to decide questions like these may complicate enforcement of our nation's export control regime, the constitutional rights at issue—the guarantee of due process of law, the right to a jury trial, the protection against ex post facto laws—are of “surpassing importance.” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348.[FN11]

Our decision to vacate the Munitions List convictions only affects two of the seventeen counts on which Wu was convicted and two of the thirteen counts on which Wei was convicted.[FN12]

B. Commerce Control List (CCN) Counts

On the Commerce Control List (“CCL”) counts, Wu and Wei were convicted on charges that they exported dual-use electronic components to China repeatedly between May 2004 and May 2007. As with the Munitions List counts, Wu and Wei challenge the jury instructions, although they also argue that their conduct was perfectly legal under the relevant regulations and that there was insufficient evidence for the jury to conclude otherwise.

Statutory and Regulatory Framework.

The International Emergency Economic Powers Act (“IEEPA”) imposes criminal penalties on any person who “willfully commits ... or willfully conspires to commit” a violation of regulations issued under the Act. 50 U.S.C. § 1705(c). The IEEPA's penalty provision applies to violations of the Export Administration Regulations (EAR), 15 C.F.R. pts. 730–774. See generally United States v. Zhi Yong Guo, 634 F.3d 1119, 1121–22 (9th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 3041, 180 L.Ed.2d 860 (2011). Five provisions of the EAR are especially relevant to this case.

First, the CCL describes items that are subject to the EAR and assigns Export Classification Control Numbers (ECCNs) to various categories of commodities, software, and technology. See 15 C.F.R. § 774.1 & Supp. No. 1. The CCL covers “dual use” items, i.e., items that have commercial as well as military applications. See id. § 730.3; Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1150 (D.C.Cir.2010).

Second, the Commerce Country Chart, 15 C.F.R. pt. 738 Supp. No. 1, assigns countries to various categories based on the risk that exports to those countries will pose a threat to U.S. national security or other vital interests. Even though Hong Kong has been a special administrative region of the People's Republic of China since 1997, Hong Kong and China are categorized differently for EAR purposes. Hong Kong is subject to “NS Column 1” controls (as is every other country except Canada), while China is subject to “NS Column 1” and “NS Column 2” controls.

Third, the EAR's “General Prohibition One,” id. § 736.2(b)(1), prohibits the export and reexport of controlled items to certain countries without a license or license exception. The application of General Prohibition One depends on the Export Classification Control Number of the item in question and the Commerce Country Chart category of the country of destination. For example, electronic components in the ECCN 3A001 category cannot be exported or reexported to “NS Column 2” countries without a license or license exception (although they may, in general, be exported or reexported to “NS Column 1” destinations).

Fourth, a section titled “Important EAR terms and principles,” id. § 734.2, defines the words “export” and “reexport” for purposes of the regulations. Most importantly, the so-called “deemed export” provision in that section states that:

For purposes of the EAR, the export or reexport of items subject to the EAR that will transit through a country or countries or be transshipped in a country or countries to a new country or are intended for reexport to the new country, are deemed to be exports to the new country.

Id. § 734.2(b)(6).

Fifth, and finally, a section titled “Additional permissive reexports (APR),” id. § 740.16, allows unlicensed reexports of certain items from “cooperating countries” (a category that includes Hong Kong) to destinations in “Country Group D:1” (a category that includes China). Id. § 740.16(a); see also id. pt. 740 Supp. No. 1.

The items at issue here are digital-to-analog and analog-to-digital converters. While such converters are used in ordinary audio and video players and cell phones, Wu and Wei allegedly exported converters that were rated for operation over an ambient temperature range of minus 55 degrees Celsius (minus 67 degrees Fahrenheit) to 125 degrees Celsius (257 degrees Fahrenheit)—specifications more consistent with military systems than with household electronic appliances.

CCL Jury Instructions.

Wu and Wei's first argument for vacating the CCL convictions is similar to the challenge that they raise to the Munitions List counts: an ex post facto determination by a government official that the items at issue fall within the relevant export control category cannot substitute for a jury finding that, at the time of export, the items were subject to license requirements. However, the concerns about ex post facto lawmaking that control our analysis of the Munitions List counts do not lead to the same conclusion here.

By the time of the first converter shipment charged in the indictment (May 8, 2004), analog-to-digital and digital-to-analog converters rated for operation in the ambient temperature range of –55 degrees Celsius to 125 degrees Celsius were already listed on the CCL and assigned an Export Classification Control Number of 3A001, meaning that they were subject to NS Column 2 controls and could not be exported to China without a license. See 15 C.F.R. pt. 774 Supp. No. 1 (2003); Implementation of the Wassenaar Arrangement List of Dual–Use Items, 65 Fed. Reg. 43,130, 43,135 (July 12, 2000). The items allegedly exported on May 8, 2004—sixty Intersil digital-to-analog converters with part number CA3338AD—clearly fall within the scope of the Commerce Control List's ECCN 3A001 category; one can ascertain as much by comparing the ordering information provided by the manufacturer with the relevant regulation. Compare Intersil Corp., CA3338, CA3338A (File No. 1850.2), at 10–11 (Aug. 1997) (stating that the temperature range for part number CA3338AD is -55 degrees Celsius to 125 degrees Celsius), with 15 C.F.R. pt. 774 Supp. No. 1.

At trial, an expert witness from the Commerce Department walked the jury through the steps involved in determining whether a particular part requires a license for export under the CCL, and the government presented a chart summarizing the results of the expert's analysis with respect to other charged parts. Cf. Fed.R.Evid. 1006 (admissibility of summary or chart to prove content of voluminous records). Wu and Wei give us no cause to doubt any of these determinations.

Here, the district judge properly instructed the jury that to meet its burden with respect to the CCL counts, the government had to prove beyond a reasonable doubt “that the charged item was classified with an Export Control Classification Number 3A001 of the Commerce Control List at the time it was exported.” But the district judge followed this up by saying:

You should not consider the appropriateness of the determinations made by the Department of Commerce. You may only consider whether the government has proven beyond a reasonable doubt that the Secretary of Commerce determined that the charged parts fell within the ECCN of the Commerce Control List.

Wu and Wei argue that the last sentence of the above-quoted instruction improperly wrested a question of fact from the jury under the circumstances of the case. If the underscored sentence referred to the Commerce Department's ex post determination—issued as part of the Chitron investigation—that the charged parts fell within ECCN 3A001, then we would agree. An ex post determination does not substitute for a finding from the trier of fact that at the time of the alleged exports—based on then-existing regulations—the charged parts fell within the relevant CCL category.

But that does not resolve the matter. As we have noted, the harmless error standard applies to instructional errors, see Neder, 527 U.S. at 17, 119 S.Ct. 1827, and here, Wu and Wei have not explained how they were prejudiced by the instructional error. It is uncontested that the items described in the indictment carried specifications that placed them squarely within the ECCN 3A001 category. Wei's appellate brief says that “whether these parts were controlled by the CCL was a contested issue,” but the record appendix page numbers cited do not support this claim. Wu and Wei do not argue, for example, that the charged items were not analog/digital converters or that the converters were incapable of operating over the ambient temperature ranges for which they were rated. So although the question of whether the items at issue fell within ECCN 3A001 at the time of the alleged export should have been submitted to the jury, we are confident that a properly instructed jury would have answered that question in the affirmative. Accordingly, under Neder, we conclude that the error was harmless.

Rejection of Defense of Additional Permissive Reexport (APR) Exception.

Wu and Wei also argue that as they read the license exception for additional permissive reexports (APRs), no license was required when the controlled converters were exported to Hong Kong and then reexported to China. We dispose of this argument rather easily, as the argument is based on a misreading of the APR provision. That provision only applies to “[r]eexports” from nations in Country Group A:1 and “cooperating countries.” 15 C.F.R. § 740.16(a) (emphasis added). (Hong Kong is a “cooperating country.” Id. pt. 740 Supp. No. 1.) At most, the APR provision exempts Hong Kong-based merchants from U.S. licensing requirements when they import items from the United States and reexport those items to China. But Chitron–US was not a reexporter; it was an exporter. And the APR provision simply does not speak to the question of whether an exporter needs a license when it ships listed items abroad.

The Commerce Department first promulgated the APR provision as part of an effort “to simplify, clarify, and make the [Export Administration Regulations] more user-friendly.” Simplification of Export Administration Regulations, 61 Fed. Reg. 12,714 (Mar. 25, 1996). One can see how the APR exception might advance this objective. For instance, in the case of items that fall within ECCN 3A001, the exporter already must obtain a license before shipping such items to a freight-forwarder or other middleman in an “NS Column 1” country (e.g., Hong Kong) when the items are “intended for reexport” to an “NS Column 2” country (e.g., China). See 15 C.F.R. § 734.2(b)(6). Under such circumstances, it would be duplicative to require that the freight-forwarder or reexporter in the “NS Column 1” country also apply for an additional license before proceeding with the contemplated transaction.

But although the APR provision provides a license exception for the overseas freight-forwarder or reexporter, it does not relieve the U.S.-based exporter of the burden of complying with the EAR. If it did, then the APR provision would allow exporters to evade EAR requirements by routing shipments through countries subject to looser controls. Cf. Lachman, 387 F.3d at 52 (rejecting defendant's proposed interpretation of export controls where it “would permit easy evasion of the regulation”). By their very terms, the deemed-export provision and the APR license exception address different classes of merchants: the former is directed to those such as Chitron–US who export controlled items from the United States with the intention that the items will be reexported to a particular prohibited destination, while the latter grants relief to overseas merchants who may sometimes deal in parts of U.S. origin.[FN13]

Sufficiency of the Evidence.

In the alternative, Wu and Wei argue that even if a license was required for the shipment of controlled converters to China via Hong Kong, the evidence presented at trial was insufficient to show that the converters actually reached China. Our review is de novo, viewing the evidence “in the light most favorable to the verdict” and reversing “only where no rational factfinder could have concluded that the evidence presented at trial, together with all reasonable inferences, established [this] element of the crime beyond a reasonable doubt.” United States v. Green, 698 F.3d 48, 56 (1st Cir.2012) (internal quotation mark omitted), cert. denied, ––– U.S. ––––, 133 S.Ct. 1509, 185 L.Ed.2d 561, 2013 WL 395617 (2013).

Here, there was ample evidence to support the jury's finding. Specifically:

-Sales spreadsheets in Wu's possession at the time of his arrest indicated that the converters in question were destined for customers whose listed addresses were in China;

-Three Chitron–US employees testified that once parts reached Hong Kong, they were forwarded to a Chitron office in Shenzhen, China;

-Chitron–US brochures said that the company's “sole distributor” was based in Shenzhen;

-Wu said on his resume that as President of Chitron Electronics, he “[s]upervised and coordinated business with Chitron USA to import all its purchased goods into China” (emphasis added); and

-Wei acknowledged at trial that a document she last saved on her computer in October 2006 said that “Chitron's customer base is 99 percent Mainland Chinese customers.”

A sufficiency-of-the-evidence challenge will fail even when the evidence does “not exclude every reasonable hypothesis of innocence”; if the evidence “can support varying reasonable interpretations, the jury is entitled to choose among them.” United States v. Quejada–Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983). Here, there is scant support for Wu and Wei's hypothesis of innocence. It was certainly “reasonable” for the jury to conclude that the controlled converters reached China (and might well have been unreasonable for the jury to conclude otherwise). And the fact that the government's case relied largely on circumstantial evidence does not detract from its persuasive force. See United States v. Cortés–Cabán, 691 F.3d 1, 12 (1st Cir.2012).

C. Conspiracy Count

While Wu and Wei were charged with one count of conspiracy, that one count covered both conspiracy to export defense articles on the Munitions List and conspiracy to export commodities on the Commerce Control List. Wu and Wei argue that the district court's erroneous instructions regarding the Munitions List counts “infected” the conspiracy count. We disagree.

It is black letter law that a defendant can be convicted of conspiracy to commit a substantive offense even if he is acquitted of the substantive offense itself. United States v. Ríos–Ortiz, No. 11–2200, 708 F.3d 310, 317, 2013 WL 704305, at *5 (1st Cir. Feb. 27, 2013) (compiling cases). For example, a defendant can be convicted of conspiracy to steal a trade secret even if the documents he sought to steal did not in fact contain trade secrets. United States v. Yang, 281 F.3d 534, 542–43 (6th Cir.2002), cert. denied, 537 U.S. 1170, 123 S.Ct. 1015, 154 L.Ed.2d 912 (2003); United States v. Hsu, 155 F.3d 189, 203–04 (3d Cir.1998). Similarly, a defendant can be convicted of conspiracy to distribute cocaine and narcotics even though, unbeknownst to him, the substances he was distributing turned out to be innocuous. United States v. Pietri, 683 F.2d 877, 879–80 (5th Cir.1982); see also United States v. Roman, 728 F.2d 846, 859 (7th Cir.1984) (“To establish conspiracy [to distribute L.S.D.] the items believed to be L.S.D. need not in fact be L.S.D.”), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984); United States v. Murray, 527 F.2d 401, 408–09 (5th Cir.1976) (conspiracy to distribute heroin even though substance turned out to be lactose). “[T]he impossibility that the defendants' conduct would result in consummation of the contemplated substantive crime is not persuasive or controlling.” United States v. Meyers, 529 F.2d 1033, 1037 (7th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 253, 50 L.Ed.2d 176 (1976). See generally United States v. Fiander, 547 F.3d 1036, 1042–43 (9th Cir.2008) (compiling cases).

Just as a defendant can be convicted of conspiracy to steal trade secrets even when the information he conspires to steal is not in fact a trade secret, and just as a defendant can be convicted of conspiracy to distribute narcotics even when the substance he conspires to distribute is not in fact a narcotic, so too can a defendant be convicted of conspiracy to export items on the Munitions List even when the items he conspires to export are not in fact on the Munitions List. Thus, whether the phase shifters that Wu and Wei exported to China were actually on the Munitions List was not essential to the conspiracy charge. The fact that the district court wrested this question from the jury does not undermine the conspiracy count, because this question was never part of the conspiracy inquiry anyway.

Wu and Wei also renew their argument that the district court improperly instructed the jury that the mens rea element of the Munitions List counts required only a finding of “willful blindness,” and they claim that this instructional error likewise infected the conspiracy charge. As noted above, we do not reach the question of whether the mens rea requirement of willfulness in 22 U.S.C. § 2778(c) encompasses “willful blindness,” as we vacate that the Munitions List convictions on other grounds. See supra note 12. With regard to the conspiracy count, the district court instructed the jury that willfulness was an element of the crime and that “[t]o act ‘willfully’ means to act voluntarily and intelligently with the specific intent that the underlying crime be committed.” The court added that Wu and Wei could not be convicted on the conspiracy count if they “act[ed] by ignorance, accident, or mistake.” The district court did not instruct the jury that it could convict Wu and Wei of conspiracy on a “willful blindness” theory. Thus, the propriety of the “willful blindness” instruction in the context of the Munitions List counts has no bearing on the validity of the conspiracy conviction.

III.

In addition to their convictions on the Munitions List and CCL counts and the related conspiracy count, Wu and Wei were convicted of conspiracy to file false and misleading Shipper's Export Declarations; they were likewise convicted of violating 18 U.S.C. §§ 2 and 1001(a)(1) in connection with the inaccurate SEDs. See 18 U.S.C. § 2 (criminal liability for aiding and abetting offense against the United States); id. § 1001(a)(1) (criminal liability for falsifying, concealing or covering up a material fact in a matter within the federal government's jurisdiction). Wu and Wei argue that the evidence supporting those convictions was legally insufficient and that the jury instructions on those counts were erroneous. These arguments fail.

Statutory and Regulatory Framework.

Acting within its authority under 13 U.S.C. § 301 (authorization to collect information from exporters and importers), the Commerce Department has promulgated the Foreign Trade Regulations, 15 C.F.R. pt. 30, which, inter alia, require exporters to file “Shipper's Export Declarations” electronically for all goods being sent to foreign countries. See 15 C.F.R. § 30.2(1). Although certain shipments are exempt from the SED requirement when the aggregate value of the items is $2,500 or less, see id. § 30.37(a), SEDs still must be filed for goods requiring an export license regardless of value, id. § 30.2(a)(1)(iv).

The SED form instructs exporters to specify the “ultimate consignee” and the “country of ultimate destination” for the items being shipped. The governing regulations distinguish the “ultimate consignee” from the “intermediate consignee”: the ultimate consignee is either the “end user” or the party “to whom final delivery ... of the goods will be made,” while the intermediate consignee is the agent who acts “with the purpose of effecting delivery of items to the ultimate consignee.” Id. § 30.1. The country of ultimate destination is the “country where the goods are to be consumed, further processed, stored, or manufactured, as known to the [U.S. principal party in interest] at the time of export.” Id. The U.S. principal party in interest is the “person or legal entity in the United States that receives the primary benefit ... from the export transaction.” Id.

Challenges to the SED Counts.

The defendants do not seriously dispute that Chitron–US filed false SEDs: Wei listed Hong Kong-based freight forwarders as the ultimate consignees on some forms and listed Chitron's Hong Kong office as the ultimate consignee on other such forms, when in fact the ultimate consignees were the purchasers in mainland China. Moreover, Wei incorrectly listed Hong Kong—rather than China—as the country of ultimate destination. The regulations regarding SEDs are quite clear as to the meaning of the relevant terms, and the ex post facto concerns governing our analysis of the Munitions List counts are inapposite here, as these rules were in place for more than a quarter century before the shipments in question. See 41 Fed. Reg. 9134 (Mar. 3, 1976) (republication of 15 C.F.R. pt. 30).

Rather, the defendants argue that (1) the government failed to prove that there was an agreement between Wu and Wei to file false SEDs, (2) the government failed to prove that Wei knew the SEDs were incorrect, and (3) the jury instructions regarding the SED counts improperly incorporated different definitions of key terms than the definitions on which Wei relied. We consider (and reject) each of these arguments in turn.

Proof of Agreement.

“The touchstone of conspiracy is an agreement to do an unlawful act,” United States v. Martinez–Medina, 279 F.3d 105, 113 (1st Cir.), cert. denied, 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002), and the government's failure to produce evidence sufficient to show such an agreement would be grounds for reversal. See, e.g., United States v. Paret–Ruiz, 567 F.3d 1, 8 (1st Cir.2009). But “[a]n agreement between coconspirators may be proven by circumstantial evidence, and it may be tacit.” Id. at 6. Here, a reasonable jury could certainly have concluded that Wu and Wei agreed—at least tacitly—to file false SEDs.

The evidence supporting the conspiracy charge included:

-An e-mail from Wu to Wei in which Wu said, “you do not have to say you sell parts to China”;

-Instructions from Wu to purchasers in Chitron–US's Massachusetts office in which Wu wrote that “[t]he key is to avoid submitting end user info”; and

-An e-mail from Wei to Wu in which she described complications in filling out an SED form and then wrote, “In order not to waste too much time, I have to reduce the value under 2500 to make it simple.”

Since exporters do not need to file SEDs for certain shipments of items worth $2,500 or less, see 15 C.F.R. § 30.37(a), this last piece of evidence supports the inference that Wei was trying to circumvent SED requirements—and that she was doing so with Wu's tacit consent. “Proof of [a defendant's] involvement in the conspiracy may consist of indirect evidence, including reasonable inferences drawn from attendant circumstances.” United States v. Medina–Martinez, 396 F.3d 1, 5 (1st Cir.) (internal quotation marks omitted), cert. denied, 544 U.S. 1007, 125 S.Ct. 1955, 161 L.Ed.2d 786 (2005). Here, the attendant circumstances included the fact  that Wu and Wei communicated daily about all aspects of Chitron's operations, along with their obvious motive (in light of the Munitions List and Commerce Control List rules) to misrepresent the ultimate destination as Hong Kong. On this basis, a “rational trier of fact” certainly could have found Wu and Wei guilty of the conspiracy charged. See United States v. Alverio–Meléndez, 640 F.3d 412, 418 (1st Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 356, 181 L.Ed.2d 225 (2011).

Proof of Knowledge.

For a false statement to trigger criminal liability under 18 U.S.C. § 1001, “the false statement must be made knowingly and willfully.” United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir.2006); see also United States v. Yermian, 468 U.S. 63, 72–74, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984). “Willfulness ... means nothing more in this context than that the defendant knew that his statement was false when he made it or—which amounts in law to the same thing—consciously disregarded or averted his eyes from its likely falsity.” Gonsalves, 435 F.3d at 72.

Wei testified at trial that she thought that the term “ultimate consignee” meant “the person or the company who received the package” and that the term “country of ultimate destination” meant “the country where the package will land.” She now argues that she arrived at this understanding based on a Census Bureau document entitled “Correct Way to Complete the Shipper's Export Declaration,” which she received by fax from a UPS employee in 2002. But the Census Bureau document defines “ultimate consignee” as “the foreign party actually receiving the merchandise for the designated end-use or the party so designated on the export license.”14 A jury could easily reject Wei's claim that she thought the freight forwarder or the Chitron branch office in Hong Kong was the party “receiving the merchandise for the designated end use,” especially when Wei knew that Chitron's customers were primarily in mainland China. The jury was under no obligation to credit Wei's testimony. See United States v. Kenrick, 221 F.3d 19, 31 n. 14 (1st Cir.) (en banc), cert. denied, 531 U.S. 961, 121 S.Ct. 387, 148 L.Ed.2d 299 (2000).

In any event, a former Chitron–US employee testified that prior to the filing of the false SEDs at issue, she spoke on the telephone with a Commerce Department official who explained that the “ultimate consignee” is “the end-user who is using the part where it's ultimately going, and it's not being shipped to anywhere else.” The employee further testified that she relayed this information to Wei. So even if Wei had misinterpreted the SED requirements in the first instance, the jury could conclude that her misimpression had been corrected by her employee.

Jury Instructions.

Finally, Wu and Wei argue that the jury instructions improperly incorporated language from the Code of Federal Regulations defining the terms “ultimate consignee” and “country of ultimate destination” when the instructions should have been limited to the definitions in the Census Bureau document on which Wei allegedly relied. In so arguing, Wu and Wei confuse the actus reus and mens rea elements of the relevant crime.

To convict the defendants under the false statements statute, the jury had to find (1) that the defendants' answers on the SED form “falsifie[d], conceal[ed], or cover[ed] up ... a material fact” (the actus reus ) and (2) that the defendants did so “knowingly and willfully” (the mens rea ). See 18 U.S.C. § 1001(a). The actus reus requirement means that the answers Wei gave on the SED form to the questions about “ultimate consignee” and “country of ultimate destination” must have been false or misleading, regardless of what she and Wu believed. Even if the defendants thought that they had misstated the ultimate consignee or country of ultimate destination on the SED forms (i.e., even if the defendants acted with the requisite mens rea ),[FN15] the jury still needed to find that they actually did misstate these material facts. And to find that, the jury needed to consult the definitions of “ultimate consignee” and “country of ultimate destination” under law (i.e., in the Code of Federal Regulations). For that purpose, the plain language of the regulation—and not the guidance document—is controlling. See Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 235–36 (D.C.Cir.1992).

In a last-ditch effort, Wei argues in her reply brief that the jury instructions improperly incorporated language from the Export Administration Regulations defining “end-user,” while it is the Foreign Trade Regulations—not the EAR—that control the construction of terms on the SED form. See 15 C.F.R. § 772.1 (stating that the “end-user” for the purposes of the EAR is “not a forwarding agent or intermediary”). “[A]ppellate arguments debuted in a reply brief are not preserved,” Soto–Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 8 (1st Cir.2012), and that alone would be fatal to Wei's claim. But even if the argument were not waived, it would not succeed: while the exact words used by the district judge in her instructions did come from the EAR, the substance of the Foreign Trade Regulations is nearly identical. See 15 C.F.R. § 30.1 (ultimate consignee may be the end user or the foreign principal party in interest, and “[i]n most cases, the forwarding or other agent is not a principal party in interest”).

Admittedly, the Foreign Trade Regulations say that a forwarding agent is not the ultimate consignee in “most cases,” while the jury instructions implied that a forwarding agent is never the ultimate consignee. But that distinction makes no difference to this case. Under the Foreign Trade Regulations, a forwarding agent would only be the ultimate consignee if the forwarding agent was the foreign person who “receive[d] the primary benefit, monetary or otherwise, from the transaction,” 15 C.F.R. § 30.1, and neither Wei nor Wu argues that the Hong Kong-based freight forwarders or the Chitron office located there “receive[d] the primary benefit” from any of the transactions in question.

IV.

Wei separately challenges the sufficiency of the evidence supporting her conviction on one count of immigration fraud in connection with her September 2002 application for a U.S. Permanent Resident Card (“Green Card”). See 18 U.S.C. § 1546(a). The indictment set forth two distinct theories in support of this count. First, it charged that Wei's Green Card application concealed her earlier work for Chitron–US's predecessor entity, Perfect Science, to cover up the fact that she had violated U.S. immigration laws by working there between 1996 and 1998. Second, it claimed that Wei lied on her application when she answered that she did not “intend to engage in the U.S. in any activity to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information.”

“The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive ..., the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); accord United States v. Mubayyid, 658 F.3d 35, 70 (1st Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 2378, 182 L.Ed.2d 1052 (2012). However, this general rule does not apply when one of the alternative theories submitted to the jury rests on an unconstitutional or legally flawed premise. See Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 2934, 177 L.Ed.2d 619 (2010) (citing Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)); Hedgpeth v. Pulido, 555 U.S. 57, 60, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) (per curiam). In such cases, we can affirm the conviction only if we conclude “beyond a reasonable doubt” that “the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 17, 119 S.Ct. 1827; cf. Hedgpeth, 555 U.S. at 61, 129 S.Ct. 530 (Neder harmless-error analysis applies to alternative-theory errors).

Here, we find that sufficient evidence supported the charge that Wei misrepresented her employment history on her Green Card application to hide her previous visa violations. And since the jury instructions with regard to the second theory were neither unconstitutional nor otherwise fatally flawed, Wei's conviction for immigration fraud must stand.

The statute, 18 U.S.C. § 1546(a), makes it a felony to submit false information on an application for a visa or other immigration document. The statute “unambiguously extends a mens rea requirement” of knowledge, United States v. Villanueva–Sotelo, 515 F.3d 1234, 1239 (D.C.Cir.2008), cert. denied, 556 U.S. 1234, 129 S.Ct. 2377, 173 L.Ed.2d 1292 (2009); see also United States v. Archer, 671 F.3d 149, 154 (2d Cir.2011), and it only applies to false statements with respect to “material” facts. United States v. Boskic, 545 F.3d 69, 85 (1st Cir.2008), cert. denied, 555 U.S. 1175, 129 S.Ct. 1393, 173 L.Ed.2d 593 (2009). A false statement on an immigration application is “material” if “disclosure of the true facts would have led the government to make an inquiry that might have uncovered other facts” that might lead to denial of the application. United States v. Fedorenko, 597 F.2d 946, 951 (5th Cir.1979); see also Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988).

Applicants for a Green Card must submit a form listing their employment history over the previous five years. When Wei filled out this form in 2002, she only listed her employment at Chitron from May 1998 onwards (the month in which she was issued an employment authorization card). She omitted any mention of her work at Perfect Science, as Chitron's branch office in Massachusetts was formerly known, even though she had been under contract to run the branch office from June 1996 onwards.

Wei argues that her work for Chitron before May 1998 was as a “volunteer.” While it is true that volunteer work need not be reported as employment for Green Card application purposes, the jury could reasonably conclude that Wei was no volunteer. The contract she signed with Wu in June 1996 provided her with a 5 percent stake in Chitron “[a]s a compensation.” While the contract did designate Wei as a “volunteer,” the fact that she was receiving stock-based compensation in exchange for her services clearly belies that designation.

The government also introduced a May 1997 e-mail from Wei to Wu in which she mentioned that a lawyer had told her that her work for Wu's company might violate the restrictions of her student visa. A reasonable jury could rely on this e-mail as evidence that Wei possessed the requisite mens rea for immigration fraud. As for materiality, Wei's own attorney read into the record a statement from the U.S. Citizenship and Immigration Services adjudicator who handled Wei's case; the adjudicator stated that if she had known that Wei's employment history was incomplete or inaccurate, that would have “trigger[ed] further investigation.” This alone is enough to render the false statement “material,” since a further investigation could have revealed that Wu and Wei were not in compliance with U.S. export laws. Cf. Fedorenko, 597 F.2d at 951.

Thus, an ample evidentiary foundation supports the charge that Wei lied about her past employment on her Green Card application. Her conviction must stand unless the instructions regarding the government's alternative theory of immigration fraud—that Wei lied about her intent to violate export restrictions—were unconstitutional or otherwise invalid. While Wei argues that the errors inherent in the Munitions List instructions necessarily infect the immigration count, we reject this suggestion.

The question which led us to vacate the Munitions List convictions is separate from whether, as of September 2002, Wei lied about whether she intended to violate the Munitions List restrictions. One can intend to violate a law on Date 1 without actually violating that law on Date 2, just as one can violate a law on Date 2 without having intended to do so on Date 1. Accordingly, if the jury convicted Wei of immigration fraud because it thought she intended, as of September 2002, to violate the Munitions List controls, the immigration fraud conviction could stand regardless of whether Wei ever did ship Munitions List-restricted parts to China.

Wei also argues that the Export Administration Regulations (which include the Commerce Control List) do not qualify as laws “prohibiting” the export of any goods because the EAR merely requires a license under certain circumstances. There is no basis for the argument. Wei was convicted of violating a provision of the EAR entitled “General Prohibition One,” see 15 C.F.R. § 736.2(b)(1), which forbids the shipment of dual-use parts to specified countries without a license.

Since sufficient evidence supports at least one of the two theories on which the government charged immigration fraud, and since Wei has identified no fatal flaws in the instructions regarding the other theory of immigration fraud, our inquiry into this count is at an end.[FN16]

V.

Wu separately alleges that the district court violated his Sixth Amendment right to self-representation when it denied his request for a continuance so that he could prepare to conduct the case on his own, and later denied his related request to hire new trial counsel. The district court was entirely reasonable in its handling of Wu's last-minute request to change attorneys, and we reject this argument.

On the nineteenth day of the trial—the day after the prosecution rested its case—Wu informed the district court for the first time that there were “a lot of issues” between himself and his trial counsel, and that he did not think that his attorney “represented [his] best interest.” When asked to explain the source of the disagreement, Wu responded simply that he and his lawyer “ha[d] many fundamental disagreements about this case.” The court told Wu that it could not start the trial all over again based only on that explanation, and suggested that Wu think it over and that it would discuss the matter with him at the end of the day.

That afternoon, the court again asked Wu to explain the nature of his disagreements with trial counsel. At first, Wu expressed the same vague concerns that he had raised earlier. When the court again pressed him to say more, Wu claimed that his lawyer had not shown the jury the right pages of certain exhibits, that he had failed to call two potential witnesses, and that he had not elicited important evidence from two witnesses who had already testified and whom Wu wanted to recall for further questioning.

The district court explained to Wu that he had an absolute right to counsel, but that at this stage of the proceedings, it was too late to give him a continuance to find a new attorney based on the kind of “dilatory” complaints he had raised. The court offered Wu three choices: he could proceed pro se, he could continue with his trial counsel as his attorney, or he could represent himself with that counsel assisting as standby counsel. Wu asked for a three day continuance to find a new attorney. The court denied Wu's motion and suggested that he speak to the duty federal defender in order to think through his options. Wu accepted this proposal.

The next morning, the trial's twentieth day, Wu told the district court that he had decided to represent himself with the assistance of the duty federal defender. The court explained to Wu that it could not appoint him a public defender because he was not indigent, but that it would consider allowing him to hire a new attorney to serve as standby counsel if he could find one. In the meantime, Wu could proceed pro se with his current attorney as standby counsel. Wei's attorney then explained that if Wu would be representing himself going forward, Wei would move to sever, due to the “spillover effect” it would have on her defense.
Given this new complication and the importance of keeping the jury's attention after twenty days of trial, the district court delayed ruling on the issue until the end of the day, while the witness on the stand continued to testify. Wu then declared that he wanted to question the witness himself, without any standby attorney. The court explained that Wu could not do that until it made its decision on his motion to proceed pro se, and suggested that in the meantime he write down any questions that he thought his lawyer should have asked of the witness.

Instead, Wu announced that, “[I]f that's the case, I would like to keep [my current lawyer] as my attorney. I don't have a choice.” The court asked Wu if he was sure he would like to keep his attorney, and Wu affirmed that he would proceed with his current lawyer “for the rest of the trial.” The trial continued in accordance with Wu's decision. At the end of the day, Wu's counsel reminded the court of Wu's initial request to represent himself. The court noted that Wu had twice confirmed that he wanted to proceed with his current lawyer, and asked Wu if that was still the case; Wu responded that it was. Wu did not raise the issue again.

Wu had an absolute right to self-representation so long as he made his request “clearly and distinctly prior to the beginning of trial.” United States v. Noah, 130 F.3d 490, 497 (1st Cir.1997). But once trial was under way, Wu's right to self-representation became qualified, see id., and the district court had “considerable discretion” to grant or deny Wu's request to act as his own lawyer. Id. at 498. We review such decisions for abuse of discretion, mindful that, after trial has begun, “[t]he right to select or refuse specific counsel is always subject to practical courtroom constraints.” United States v. Betancourt–Arretuche, 933 F.2d 89, 93 (1st Cir.), cert. denied, 502 U.S. 959, 112 S.Ct. 421, 116 L.Ed.2d 441 (1991).

There was no abuse of discretion here. A district court considering a mid-trial request to proceed pro se “must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress.” Noah, 130 F.3d at 498 (quoting Williams v. Bartlett, 44 F.3d 95, 99 n. 1 (2d Cir.1994)). In this case, the district court made every effort to inquire into the extent of Wu's disagreements with his attorney, and then to accommodate Wu's complaints and his desire to proceed pro se within the constraints of a complicated and lengthy trial. Ultimately, the court made a reasonable judgment in concluding that the disruption that would result from delaying trial and severing Wei's case outweighed Wu's qualified interest in self-representation. Betancourt–Arretuche, 933 F.2d at 94 (“trial court has extensive discretion over ‘eleventh-hour’ requests for continuances in order to substitute counsel”).[FN17]

VI.

Accordingly, we affirm Wu and Wei's convictions on the Commerce Control List counts (Counts 7, 12, 15, 16, 17, 18, and 19), the conspiracy count (Count 1), and the SED counts (Counts 31 and 32). We also affirm Wu's convictions on the additional Commerce Control List counts (Counts 21, 22, 23, 25, and 27), and affirm Wei's conviction on the immigration count (Count 34). We vacate both defendants' convictions with respect to the Munitions List counts (Counts 4 and 5).

We have said that “[w]hen a defendant successfully challenges one of several interdependent sentences, the proper course often is to remand for resentencing on the other (nonvacated) counts.” United States v. García–Ortiz, 657 F.3d 25, 31 (1st Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1126, 181 L.Ed.2d 1004 (2012). We believe that such a course is appropriate here. “[T]he authority to reshape a sentence when multicount convictions garner mixed reviews on appeal—some affirmed, some reversed—looms as an integral component of the trial judge's broad sentencing discretion.” United States v. Pimienta–Redondo, 874 F.2d 9, 14 (1st Cir.) (en banc), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). Thus, we remand to the district court for further proceedings consistent with this opinion, including—as the district court deems appropriate—proceedings to resentence the defendants on the counts for which we have affirmed their convictions.

So ordered.

Footnotes

[FN1]  A “freight forwarder” is “a transportation broker who assembles and consolidates numerous small shipments into one large load, arranges for long-haul transportation of the consolidated shipment, breaks the consolidated load into small individual shipments, and delivers those packages to the ultimate consignees.” Regular Common Carrier Conference v. United States, 793 F.2d 376, 378 (D.C.Cir.1986) (Scalia, J.).

[FN2]  Two waves are said to be “out of phase” when they have the same frequency but reach their peaks at different points. A phase shifter can change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously “in phase” no longer line up with one another). See generally Weisman, The Essential Guide to RF and Wireless, at fig. 4–23 (2d ed. 2002).

[FN3]  Wu and Wei also raise several additional challenges to the Munitions List convictions, but we need not reach them because we vacate the convictions due to the flawed jury instructions.

[FN4]  Nothing in the relevant regulation states that manufacturers are the only parties that can submit CJ requests, see 22 C.F.R. § 120.4, although the State Department “prefer[s] that the manufacturer submit the request because of the background and sales information required.” U.S. State Dep't, Directorate of Defense Trade Controls, Commodity Jurisdiction (CJ) FAQs (Oct. 2011), available at http://www.pmddtc.state. gov/faqs/documents/FAQ_CJ.pdf.

[FN5] Categories XI(a) and XI(b), in turn, contain examples of products that qualify as “[e]lectronic equipment ... specifically designed, modified or configured for military application,” ranging from “underwater acoustive active and passive countermeasures” to systems “[d]esigned or modified using burst techniques ... for intelligence, security or military purposes.” 22 C.F.R. § 121.1(c)(XI)(a), (a)(2), (b)(2).

[FN6] “An article ... may be designated or determined in the future to be a defense article ... if it: (a) Is specifically designed, developed, configured, adapted, or modified for a military application, and (i) Does not have predominant civil applications, and (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or (b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary.” 22 C.F.R. § 120.3.

[FN7] See, e.g., United States v. Sun, 278 F.3d 302, 308–09 (4th Cir.2002) (tail-gun pods, underwater mines, missile fins, and assemblies for various weaponry); United States v. Murphy, 852 F.2d 1, 4 (1st Cir.1988) (Redeye missile, M–16 rifles, submachine guns, and ammunition), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989).

[FN8] See, e.g., United States v. Sun, 278 F.3d 302, 308–09 (4th Cir.2002) (tail-gun pods, underwater mines, missile fins, and assemblies for various weaponry); United States v. Murphy, 852 F.2d 1, 4 (1st Cir.1988) (Redeye missile, M–16 rifles, submachine guns, and ammunition), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989).

[FN9] Wu and Wei raise several objections to this evidence. First, they contend that the “purchase order” on which the district court relied was in fact a “picking document” used internally by Richardson, to which Chitron would never have had access. However, testimony at trial indicated that the picking document was identical to the packing list Richardson included in the package for the buyer.

Second, Wu and Wei argue that the district court regarded the Richardson warnings as unreliable, and admitted them as business records only as to the question of “whether or not [the phase shifters] were bought and sold,” but not as to the contents of the accompanying warnings that Chitron received. But in fact, the court admitted the picking document for the MAPCGM0003 phase shifter for all purposes, and admitted the testimony of Richard Catey, a Richardson employee, for the purpose of establishing the contents of the warnings that Chitron received.

Third, Wu and Wei claim that because the Richardson warnings only advised that the phase shifters “may” require prior government approval for export, the warnings fell short of constitutional notice requirements. However, the warnings specifically referenced the State Department's authority over the phase shifters and their presence on Munitions List Category XI. As a whole, the language of the warnings was sufficient to put Wu and Wei on notice and direct them to conduct a further inquiry as to the license requirements for exporting the phase shifters.

[FN10] The fact that government officials disagreed about the proper classification of phase shifters does not mean that Category XI(c) is fatally vague. For instance, two police officers might disagree whether the barrel of a shotgun is greater or less than 18 inches, perhaps because they have different ideas about how length should be measured. See, e.g., United States v. Shaw, 670 F.3d 360, 365–66 (1st Cir.2012) (discussing methods for measuring barrel length). But that does not mean the statutory provisions defining “firearm” by barrel length, 26 U.S.C. § 5845(a)(1)–(4), are void for vagueness. A statute can satisfy the Due Process Clause and still present occasional close calls.

Moreover, the fact that government officials disagreed about the proper classification of phase shifters does not defeat the mens rea element of the offense. Wu and Wei might well have believed that the phase shifters were Munitions List-restricted even while some government officials were doubtful. After all, the defendants were not privy to the State and Commerce Departments deliberations on the matter.

[FN11] In any event, as defense counsel noted at oral argument, it appears that these complications may be largely avoided through the State Department's own recently proposed amendment to Category XI of the Munitions List, which would revise that provision, especially subsection XI(c), to include a “positive list” of specific controlled items in place of its current catalogue of generic descriptions. See Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XI and Definition for “Equipment,” 77 Fed. Reg. 70,958 (proposed Nov. 28, 2012) (to be codified at 22 C.F.R. pt. 121). The proposed revision of Category XI(c) appears to include phase shifters specifically within its ambit, see id. at 70,963, and so, if finalized, it would permit the government to prosecute future exporters without proving anew each time that phase shifters are within the scope of the Munitions List.

[FN12] Because we vacate the Munitions List convictions on the grounds that the district court's charge improperly wrested the actus reus question from the jury, we do not reach the defendants' argument that the jury instructions with respect to the mens rea element were fatally flawed. According to the district court's instructions, the jury could find that the mens rea element of the Munitions List counts had been met if “the defendants willfully made themselves blind to th[e] fact” that phase shifters were defense articles on the Munitions List. Wu and Wei argue that allowing them to be convicted on the basis of “willful blindness” improperly lowered the mens rea requirement in § 2778(c). See generally United States v. Roth, 628 F.3d 827, 834 (6th Cir.2011) (noting that “circuits have interpreted the willfulness element of section 2778(c) and produced different results,” and compiling cases), cert. denied, ––– U.S. ––––, 132 S.Ct. 94, 181 L.Ed.2d 23 (2011).

[FN13] In a futile attempt to complicate matters, the defendants draw our attention to a separate subsection of the APR, 15 C.F.R. § 740.16(i), which applies only to Sudan. That subsection allows for reexports of certain controlled items to Sudan but adds a clarification: “However, the export from the United States to any destination with knowledge that [the controlled items] will be reexported directly or indirectly, in whole or in part to Sudan is prohibited without a license.” The defendants claim that the clarification would be superfluous unless the APR already allowed the export of controlled items from the United States with the knowledge that those items would be reexported to a listed country. But the fact that the drafters of the APR included an extra clarification in the Sudan subsection does not alter the plain meaning of the rest of the APR's text. Where drafters include a clarification “as a means of reminding those subject to the new laws of ... self-operative, previously enacted sanctions,” the clarification “necessarily establish[es] no more than that [the drafters] chose in some cases to make assurance doubly sure.” United States v. Hansen, 772 F.2d 940, 946–47 (D.C.Cir.1985) (Scalia, J.), cert. denied, 475 U.S. 1045, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986).

[FN14] Since Chitron–US had no export license, the last clause in the definition of “ultimate consignee” is irrelevant here.

[FN15] Of course, the definitions in the Census Bureau document may be relevant to mens rea: if the jury found that Wu and Wei genuinely believed on the basis of the guidance document that their answers on the SED form were correct, then the requirement that they must have acted “knowingly and willfully” would not be satisfied. But the defendants do not object to the mens rea portion of the jury instructions on the SED counts. Nor could they, as the instructions emphasized that the mens rea element required the defendants to have acted “purposely and voluntarily, ... with an intention to do something that the law forbids ... or with the specific intent to fail to do something that the law requires to be done.”

[FN16] We also reject Wei's argument that the district court deprived her of her constitutional right to present a defense by excluding an ostensibly exculpatory e-mail. Wei sought to introduce an e-mail that she sent to an attorney in January 2003 seeking the name of a lawyer with expertise in export control regulations. In the e-mail, Wei said that Chitron “always follow[ed] the rules” and did not “want to do any illegal business” but that “sometimes we are not 100% sure about the law.” When Wei's trial counsel sought to introduce the e-mail into evidence during direct examination of Wei on the twentieth day of the trial, the prosecutor objected that the defense had not shared this e-mail with the government until the morning of Wei's testimony. During a sidebar conference on the issue, before the district court issued any formal ruling on the objection, Wei's counsel volunteered: “I'm not going to sneak it up on them, Judge. I won't use it.”

The next day, during the government's cross-examination of Chitron compliance officer Bo Li, the government asked Li whether he was “privy to any discussions with Chitron's lawyer about compliance policy,” and Li said he was not. Wei's counsel argued at sidebar that the questioning of Li “opened the door” to the e-mail, but the district court rejected the defense lawyer's renewed request to introduce the message into evidence.

The district court's handling of this issue was entirely proper. Notably, the initial decision not to introduce the e-mail was made by Wei's counsel, not the district court. Nor did Li's testimony “open” any “door”: Li did not join Chitron until 2005, and there is no suggestion that Li was privy to the January 2003 correspondence. The right to introduce evidence in one's defense is subject to reasonable restrictions, see Evans v. Verdini, 466 F.3d 141, 148 (1st Cir.2006), cert. denied, 549 U.S. 1351, 127 S.Ct. 2057, 167 L.Ed.2d 785 (2007), and the district court certainly had the discretion to disallow the e-mail on Day 21 of the trial after Wei's counsel had already withdrawn his request to introduce it.

[FN17] Wu also argues that the district court violated his Sixth Amendment right to confront the witnesses against him and to present a complete defense when it denied his request to recall for further questioning two witnesses who had already testified. In fact, however, Wu never moved to recall these witnesses at all—he simply expressed the desire to recall them in the context of explaining to the district court why he was unhappy with his attorney's performance. Nor did the district court deny any request to recall witnesses. It merely explained to Wu that his lawyer could not recall those witnesses. Regardless, the Sixth Amendment “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Stephens v. Hall, 294 F.3d 210, 226 (1st Cir.2002) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)), cert. denied, 537 U.S. 1129, 123 S.Ct. 907, 154 L.Ed.2d 816 (2003). Wu received that opportunity and the court was not constitutionally required to give him a second chance. See id.

209 F.3d 481

United States Court of Appeals,
Sixth Circuit.

Peter D. JUNGER, Plaintiff-Appellant,

v.

William DALEY, United States Secretary of Commerce, et al., Defendants-Appellees.

No. 98-4045.
Argued: Dec. 17, 1999
Decided and Filed: April 4, 2000

Attorneys and Law Firms  

Gino J. Scarselli (argued and briefed), Raymond Vasvari (briefed), ACLU of Ohio Foundation, Cleveland, Ohio, Kevin F. O'Neill (briefed), Cleveland-Marshall College of Law, Cleveland, Ohio, for Appellant.

Scott R. McIntosh (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for Appellees.

David W. Addis (briefed), Kurt A. Wimmer (briefed), Covington & Burling, Washington, D.C., Robert M. O'Neil (briefed), J. Joshua Wheeler (briefed), Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia, Paul F. Gamble (briefed), Bloomfield Hills, Michigan, for Amici Curiae.

Before: MARTIN, Chief Judge; CLAY, Circuit Judge; WEBER, District Judge.[FN*]

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

This is a constitutional challenge to the provisions of the Export Administration Regulations, 15 C.F.R. Parts 730-74, that regulate the export of encryption software. Peter D. Junger appeals the district court's grant of summary judgment in favor of Secretary Daley and the other defendants.

The district court found that encryption source code is not sufficiently expressive to be protected by the First Amendment, that the Export Administration Regulations are permissible content-neutral restrictions, and that the Regulations are not subject to a facial challenge as a prior restraint on speech. Subsequent to the district court's holding and the oral arguments before this Court, the Bureau of Export Administration issued an interim final rule amending the regulations at issue. See Revisions to Encryption Items, 65 Fed.Reg. 2492 (2000) (to be codified at 15 C.F.R. Parts 734, 740, 742, 770, 772, 774). Having concluded that the First Amendment protects computer source code, we reverse the district court and remand this case for further consideration of Junger's constitutional claims in light of the amended regulations.

ENCRYPTION AND SOFTWARE BACKGROUND

Encryption is the process of converting a message from its original form (“plaintext”) into a scrambled form (“ciphertext”). Most encryption today uses an algorithm, a mathematical transformation from plaintext to ciphertext, and a key that acts as a password. Generally, the security of the message depends on the strength of both the algorithm and the key.

Encryption has long been a tool in the conduct of military and foreign affairs. Encryption has many civil applications, including protecting communication and data sent over the Internet. As technology has progressed, the methods of encryption have changed from purely mechanical processes, such as the Enigma machines of Nazi Germany, to modern electronic processes. Today, messages can be encrypted through dedicated electronic hardware and also through general-purpose computers with the aid of encryption software.

For a general-purpose computer to encrypt data, it must use encryption software that instructs the computer's circuitry to execute the encoding process. Encryption software, like all computer software, can be in one of two forms: object code or source code. Object code represents computer instructions as a sequence of binary digits (0s and 1s) that can be directly executed by a computer's microprocessor. Source code represents the same instructions in a specialized programming language, such as BASIC, C, or Java. Individuals familiar with a particular computer programming language can read and understand source code. Source code, however, must be converted into object code before a computer will execute the software's instructions. This conversion is conducted by compiler software. Although compiler software is typically readily available, some source code may have no compatible compiler.

REGULATORY BACKGROUND

The Export Administration Regulations create a comprehensive licensing scheme to control the export of nonmilitary technology, software, and commodities. In 1996, the President transferred export jurisdiction over nonmilitary encryption items from the State Department to the Commerce Department's Bureau of Export Administration.

The Regulations are structured around the Commodity Control List, which lists items subject to export control. See 15 C.F.R. Part 774. Each item on the List is given an Export Control Classification Number that designates the category of the controlled item and the reasons why the government controls the item's export. See 15 C.F.R. § 738.2. The reasons for control affect the nature and scope of the export controls.

Encryption software, including both source code and object code, is regulated under Export Control Classification Number 5D002 for national security reasons. See id. § 772 Supp. 1. In addition, encryption technology and encryption hardware are regulated for national security reasons under different Classification Numbers. Generally, the Regulations require a license for the export of all encryption items to all foreign destinations, except Canada. See 65 Fed.Reg. 2492, 2499 (to be codified at 15 C.F.R. § 742.15(a)). Although the regulations provide some exceptions, most encryption software in electronic form remains subject to the license requirements for export. Encryption software in printed form, however, is not subject to the Regulations. See 15 C.F.R. § 734.3(b)(2).

The Regulations define “export” as the “actual shipment or transmission of items subject to the EAR out of the United States.” Id. § 734.2(b)(1). For encryption software, the definition of “export” also includes publication of the software on the Internet, unless steps are taken to restrict foreign access to the Internet site. See 65 Fed.Reg. 2492, 2496 (to be codified at 15 C.F.R. § 734.2(b)(9)(ii)).

FACTUAL BACKGROUND

Peter Junger is a professor at the Case Western University School of Law. Junger maintains sites on the World Wide Web that include information about courses that he teaches, including a computers and the law course. Junger wishes to post on his web site encryption source code that he has written to demonstrate how computers work. Such a posting is defined as an export under the Regulations.

On June 12, 1997, Junger submitted three applications to the Commerce Department, requesting determinations of commodity classifications for encryption software programs and other items. On July 4, the Export Administration told Junger that Classification Number 5D002 covered four of the five software programs he had submitted. Although it found that four programs were subject to the Regulations, the Export Administration found that the first chapter of Junger's textbook, Computers and the Law, was an allowable unlicensed export. Though deciding that the printed book chapter containing encryption code could be exported, the Export Administration stated that export of the book in electronic form would require a license if the text contained 5D002 software. Since receiving the classification determination, Junger has not applied for a license to export his classified encryption source code.

Junger filed this action to make a facial challenge to the Regulations on First Amendment grounds, seeking declaratory and injunctive relief that would permit him to engage in the unrestricted distribution of encryption software through his web site. Junger claims that encryption source code is protected speech. The district court granted summary judgment in favor of the defendants, holding that encryption source code is not protected under the First Amendment, that the Regulations are permissible content-neutral regulations, and that the Regulations are not subject to facial challenge on prior restraint grounds.

We review the grant of summary judgment de novo. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999).

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that “all ideas having even the slightest redeeming social importance,”  including those concerning “the advancement of truth, science, morality, and arts” have the full protection of the First Amendment. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)  (quoting 1 JOURNALS OF THE CONTINENTAL CONGRESS 108 (1774)). This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. See United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as “unquestionably shielded” the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programmers.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

The functional capabilities of source code, and particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech. Under intermediate scrutiny, the regulation of speech is valid, in part, if “it furthers an important or substantial governmental interest.” O'Brien, 391 U.S. at 377, 88 S.Ct. 1673. In Turner Broadcasting System v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), the Supreme Court noted that although an asserted governmental interest may be important, when the government defends restrictions on speech “it must do more than simply ‘posit the existence of the disease sought to be cured.’ ” Id.  (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether the exercise of presidential power in furtherance of national security interests should overrule the interests in allowing the free exchange of encryption source code.

Before any level of judicial scrutiny can be applied to the Regulations, Junger must be in a position to bring a facial challenge to these regulations. In light of the recent amendments to the Export Administration Regulations, the district court should examine the new regulations to determine if Junger can bring a facial challenge.

For the foregoing reasons, we REVERSE the district court and REMAND the case to the district court for consideration of Junger's constitutional challenge to the amended regulations.

Footnotes

[FN*] The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.

838 F.3d 451

United States Court of Appeals,
Fifth Circuit.

Defense Distributed; Second Amendment Foundation, Incorporated, Plaintiffs–Appellants

v.

United States Department of State; John F. Kerry, In His Official Capacity as the Secretary of the Department of State; Directorate of Defense Trade Controls, Department of State Bureau of Political Military Affairs; Kenneth B. Handelman, Individually and in His Official Capacity as the Deputy Assistant Secretary of State for Defense Trade Controls in the Bureau of Political–Military Affairs; C. Edward Peartree, Individually and in His Official Capacity as the Director of the Office of Defense Trade Controls Policy Division; Sarah J. Heidema, Individually and in Her Official Capacity as the Division Chief, Regulatory and Multilateral Affairs, Office of Defense Trade Controls Policy; GLENN SMITH, Individually and in His Official Capacity as the Senior Advisor, Office of Defense Trade Controls, Defendants–Appellees

No. 15–50759
Filed September 20, 2016

Attorneys and Law Firms  

Alan Gura, Gura & Possessky, P.L.L.C., Alexandria, VA, Joshua Michael Blackman, Houston, TX, Matthew Goldstein, Washington, DC, William Bryan Mateja, Esq., Polsinelli, P.C., Dallas, TX, David Scott Morris, Fish & Richardson, P.C., Austin, TX, for Plaintiffs–Appellants.

Daniel Bentele Hahs Tenny, Esq., U.S. Department of Justice, Michael S. Raab, U.S. Department of Justice, Civil Division, Appellate Section, Eric J. Soskin, U.S. Department of Justice, Civil Division Federal Programs Branch, Washington, DC, for Defendants–Appellees.

Bruce D. Brown, Reporters Committee for Freedom of the Press, Washington, DC, for Amici Curiae Reporters Committee for Freedom of the Press, Thomas Jefferson Center for the Protection of Free Expression.

Ilya Shapiro, Esq., Randal John Meyer, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Raffi Melkonian, Wright & Close, L.L.P., Houston, TX, for Amici Curiae Representative Thomas Massie, Representative Brian Babin, Representative K. Mike Conaway, Representative Jeff Duncan, Representative Blake Farenthold, Representative John Fleming, Representative Paul Gosar, Representative Walter Jones, Mike Kelly, Representative Steve King, Representative Raul Labrador, Representative Jeff Miller, Representative Bill Posey, Representative Todd Rokita, Representative Daniel Webster.

Leif A. Olson, Olson Firm, P.L.L.C., Humble, TX, David T. Hardy, Tucson, AZ, for Amicus Curiae Madison Society Foundation, Incorporated.

Kit Walsh, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae Electronic Frontier Foundation.

John Devereux Kimball, Esq., Martin Simon Krezalek, Blank Rome, L.L.P., New York, NY, for Amicus Curiae Brady Center to Prevent Gun Violence.

Robert E. Henneke, Joel Stonedale, Texas Public Policy Foundation, Austin, TX, for Amicus Curiae Texas Public Policy Foundation.

Before DAVIS, JONES, and GRAVES, Circuit Judges.

Opinion

W. EUGENE DAVIS, Circuit Judge: Plaintiffs–Appellants Defense Distributed and Second Amendment Foundation, Inc. have sued Defendants–Appellees, the United States Department of State, the Secretary of State, the DDTC, and various agency employees (collectively, the “State Department”), seeking to enjoin enforcement of certain laws governing the export of unclassified technical data relating to prohibited munitions. Because the district court concluded that the public interest in national security outweighs Plaintiffs–Appellants' interest in protecting their constitutional rights, it denied a preliminary injunction, and they timely appealed. We conclude the district court did not abuse its discretion and therefore affirm.

I. Background

Defense Distributed is a nonprofit organization operated, in its own words, “for the purpose of promoting popular access to arms guaranteed by the United States Constitution” by “facilitating global access to, and the collaborative production of, information and knowledge related to the 3D printing of arms; and by publishing and distributing such information and knowledge on the Internet at no cost to the public.” Second Amendment Foundation, Inc. is a nonprofit devoted more generally to promoting Second Amendment rights.

Defense Distributed furthers its goals by creating computer files used to create weapons and weapon parts, including lower receivers for AR–15 rifles.[FN1] The lower receiver is the part of the firearm to which the other parts are attached. It is the only part of the rifle that is legally considered a firearm under federal law, and it ordinarily contains the serial number, which in part allows law enforcement to trace the weapon. Because the other gun parts, such as the barrel and magazine, are not legally considered firearms, they are not regulated as such. Consequently, the purchase of a lower receiver is restricted and may require a background check or registration, while the other parts ordinarily may be purchased anonymously.

The law provides a loophole, however: anyone may make his or her own unserialized, untraceable lower receiver for personal use, though it is illegal to transfer such weapons in any way. Typically, this involves starting with an “80% lower receiver,” which is simply an unfinished piece of metal that looks quite a bit like a lower receiver but is not legally considered one and may therefore be bought and sold freely. It requires additional milling and other work to turn into a functional lower receiver. Typically this would involve using jigs (milling patterns), a drill press, other tools, and some degree of machining expertise to carefully complete the lower receiver. The result, combined with the other, unregulated gun parts, is an unserialized, untraceable rifle.

Defense Distributed's innovation was to create computer files to allow people to easily produce their own weapons and weapon parts using relatively affordable and readily available equipment. Defense Distributed has explained the technologies as follows:

Three-dimensional (“3D”) printing technology allows a computer to “print” a physical object (as opposed to a two-dimensional image on paper). Today, 3D printers are sold at stores such as Home Depot and Best Buy, and the instructions for printing everything from jewelry to toys to car parts are shared and exchanged freely online at sites like GrabCAD.com and Thingiverse.com. Computer numeric control (“CNC”) milling, an older industrial technology, involves a computer directing the operation of a drill upon an object. 3D printing is “additive;” using raw materials, the printer constructs a new object. CNC milling is “subtractive,” carving something (more) useful from an existing object.

Both technologies require some instruction set or “recipe”—in the case of 3D printers, computer aided design (“CAD”) files, typically in .stl format; for CNC machines, text files setting out coordinates and functions to direct a drill.[FN2]

Defense Distributed's files allow virtually anyone with access to a 3D printer to produce, among other things, Defense Distributed's single-shot plastic pistol called the Liberator and a fully functional plastic AR–15 lower receiver. In addition to 3D printing files, Defense Distributed also sells its own desktop CNC mill marketed as the Ghost Gunner, as well as metal 80% lower receivers. With CNC milling files supplied by Defense Distributed, Ghost Gunner operators are able to produce fully functional, unserialized, and untraceable metal AR–15 lower receivers in a largely automated fashion.

Everything discussed above is legal for United States citizens and will remain legal for United States citizens regardless of the outcome of this case. This case concerns Defense Distributed's desire to share all of its 3D printing and CNC milling files online, available without cost to anyone located anywhere in the world, free of regulatory restrictions.

Beginning in 2012, Defense Distributed posted online, for free download by anyone in the world, a number of computer files, including those for the Liberator pistol (the “Published Files”). On May 8, 2013, the State Department sent a letter to Defense Distributed requesting that it remove the files from the internet on the ground that sharing them in that manner violates certain laws. The district court summarized the relevant statutory and regulatory framework as follows:

Under the Arms Export Control Act (“AECA”), “the President is authorized to control the import and the export of defense articles and defense services” and to “promulgate regulations for the import and export of such articles and services.” 22 U.S.C. § 2778(a)(1). The AECA imposes both civil and criminal penalties for violation of its provisions and implementing regulations, including monetary fines and imprisonment. Id. § 2278(c) & (e). The President has delegated his authority to promulgate implementing regulations to the Secretary of State. Those regulations, the International Traffic in Arms Regulation (“ITAR”), are in turn administered by the DDTC [Directorate of Defense Trade Controls] and its employees. 22 C.F.R. 120.1(a).

The AECA directs that the “defense articles” designated under its terms constitute the United States “Munitions List.” 22 U.S.C. § 2778(a)(1). The Munitions List “is not a compendium of specific controlled items,” rather it is a “series of categories describing the kinds of items” qualifying as “defense articles.” United States v. Zhen Zhou Wu, 711 F.3d 1, 12 (1st Cir.) cert. denied sub nom. Yufeng Wei v. United States, –––U.S. ––––, 134 S.Ct. 365, 187 L.Ed.2d 160 (2013). Put another way, the Munitions List contains “attributes rather than names.” United States v. Pulungan, 569 F.3d 326, 328 (7th Cir. 2009) (explaining “an effort to enumerate each item would be futile,” as market is constantly changing). The term “defense articles” also specifically includes “technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in” the Munitions List. 22 C.F.R. § 120.6

A party unsure about whether a particular item is a “defense article” covered by the Munitions List may file a “commodity jurisdiction” request with the DDTC. See 22 C.F.R. § 120.4 (describing process). The regulations state the DDTC “will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction.” Id. § 120.4(e). If a final determination is not provided after 45 days, “the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing.” Id.[FN3]

In short, the State Department contended: (1) the Published Files were potentially related to ITAR-controlled “technical data” relating to items on the USML; (2) posting ITAR-controlled files on the internet for foreign nationals to download constitutes “export”; and (3) Defense Distributed therefore must obtain prior approval from the State Department before “exporting” those files. Defense Distributed complied with the State Department's request by taking down the Published Files and seeking commodity jurisdiction requests for them. It did eventually obtain approval to post some of the non-regulated files, but all of the Published Files continue to be shared online on third party sites like The Pirate Bay.

Since then, Defense Distributed has not posted any new files online. Instead, it is seeking prior approval from the State Department and/or DDTC before doing so, and it has not obtained such approval. The new files Defense Distributed seeks to share online include the CNC milling files required to produce an AR–15 lower receiver with the Ghost Gunner and various other 3D printed weapons or weapon parts.

District Court Proceedings

In the meantime, Defense Distributed and Second Amendment Foundation, Inc., sued the State Department, seeking to enjoin them from enforcing the regulations discussed above. Plaintiffs–Appellants argue that the State Department's interpretation of the AECA, through the ITAR regulations, constitutes an unconstitutional prior restraint on protected First Amendment speech, to wit, the 3D printing and CNC milling files they seek to place online.[FN4] They also claim violations of the Second and Fifth Amendments. Plaintiffs–Appellants' challenges to the regulatory scheme are both facial and as applied, and they ultimately seek a declaration that no prepublication approval is needed for privately generated unclassified information, whether or not that data may constitute “technical data” relating to items on the USML.

Plaintiffs–Appellants sought a preliminary injunction against the State Department, essentially seeking to have the district court suspend enforcement of ITAR's prepublication approval requirement pending final resolution of this case. The district court denied the preliminary injunction, and Plaintiffs–Appellants timely filed this appeal. We review the denial of a preliminary injunction for abuse of discretion, but we review any questions of law de novo.[FN5]

To obtain a preliminary injunction, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that granting the preliminary injunction will not disserve the public interest. “We have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.”[FN6]

We have long held that satisfying one requirement does not necessarily affect the analysis of the other requirements. In Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. Unit B 1982), for example, the district court had denied a preliminary injunction solely because it found that the movant, Robbins & Myers, failed to satisfy the balance of harm requirement. On appeal, Robbins & Myers argued that it had clearly shown a substantial likelihood of success on the merits, and satisfying that requirement should give rise to a presumption of irreparable harm and a presumption that the balance of harm tipped in its favor. We disagreed:

Because we dispose of this case on the balance of harm question, we need not decide and we express no views upon whether a presumption of irreparable injury as a matter of law is appropriate once a party demonstrates a substantial likelihood of success on the merits of an infringement claim. In other words, even assuming arguendo that Robbins & Myers has shown a substantial likelihood of success on the merits of its infringement claim and that irreparable injury should be presumed from such a showing (two issues not addressed by the district court in this case), we still uphold the district court's decision, which rested solely on the balance of harm factor. We agree that Robbins & Myers has failed to carry its burden of showing that the threatened harm to it from the advertisement outweighs the harm to Southern Monorail from the intercept. In addition, we expressly reject Robbins & Myers' suggestion that we adopt a rule that the balance of harm factor should be presumed in the movant's favor from a demonstration of a substantial likelihood of success on the merits of an infringement claim. Such a presumption of the balance of harm factor would not comport with the discretionary and equitable nature of the preliminary injunction in general and of the balance of harm factor in particular. See Ideal Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1026 (7th Cir. 1979), cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980) (district court obligated to weigh relative hardship to parties in relation to decision to grant or deny preliminary injunction, even when irreparable injury shown).[FN7]

The district court concluded that the preliminary injunction should be denied because Plaintiffs–Appellants failed to satisfy the balance of harm and public interest requirements, which do not concern the merits. (Assuming without deciding that Plaintiffs–Appellants have suffered the loss of First and Second Amendment freedoms, they have satisfied the irreparable harm requirement because any such loss, however intangible or limited in time, constitutes irreparable injury.[FN8]) In extensive dicta comprising nearly two-thirds of its memorandum opinion, the district court also concluded that Plaintiffs–Appellants failed to show a likelihood of success on the merits. Plaintiffs–Appellants timely appealed, asserting essentially the same arguments on appeal. Plaintiffs–Appellants continue to bear the burden of persuasion on appeal.

Analysis

Because the district court held that Plaintiffs–Appellants only satisfied the irreparable harm requirement, they may obtain relief on appeal only if they show that the district court abused its discretion on all three of the other requirements. The district court denied the preliminary injunction based on its finding that Plaintiffs–Appellants failed to meet the two non-merits requirements by showing that (a) the threatened injury to them outweighs the threatened harm to the State Department, and (b) granting the preliminary injunction will not disserve the public interest. The court only addressed the likelihood of success on the merits as an additional reason for denying the injunction. Because we conclude the district court did not abuse its discretion on its non-merits findings, we decline to address the merits requirement.

The crux of the district court's decision is essentially its finding that the government's exceptionally strong interest in national defense and national security outweighs Plaintiffs–Appellants' very strong constitutional rights under these circumstances. Before the district court, as on appeal, Plaintiffs–Appellants failed to give any weight to the public interest in national defense and national security, as the district court noted:

Plaintiffs rather summarily assert the balance of interests tilts in their favor because “[I]t is always in the public interest to prevent the violation of a party's constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012); see also Jackson Women's Health Org. v. Currier, 760 F.3d 448, 458 n. 9 (5th Cir. 2014) (district court did not abuse its discretion in finding injunction would not disserve public interest because it will prevent constitutional deprivations).[FN9]

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department's stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

In the State Department's interpretation, its ITAR regulations directly flow from the AECA and are the only thing preventing Defense Distributed from “exporting” to foreign nationals (by posting online) prohibited technical data pertaining to items on the USML. Plaintiffs–Appellants disagree with the State Department's interpretation, but that question goes to the merits.

Because Plaintiffs–Appellants' interest in their constitutional rights and the State Department's interest in national defense and national security are both public interests, the district court observed that “[i]n this case, the inquiry [on these two requirements] essentially collapses.”[FN10] It reasoned:

While Plaintiffs' assertion of a public interest in protection of constitutional rights is well-taken, it fails to consider the public's keen interest in restricting the export of defense articles. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24–25, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (discussing failure of district court to consider injunction's adverse impact on public interest in national defense); Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 826 (2nd Cir. 2015) (characterizing maintenance of national security as “public interest of the highest order”). It also fails to account for the interest—and authority—of the President and Congress in matters of foreign policy and export. See Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (matters relating to conduct of foreign relations “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference”); United States v. Pink, 315 U.S. 203, 222–23, 62 S.Ct. 552, 86 L.Ed. 796 (1942) (conduct of foreign relations “is committed by the Constitution to the political departments of the Federal Government”); Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 950 (5th Cir. 2011) (matters implicating foreign relations and military affairs generally beyond authority of court's adjudicative powers).

As to Plaintiff's second contention, that an injunction would not bar Defendants from controlling the export of classified information, it is significant that Plaintiffs maintain the posting of files on the Internet for free download does not constitute “export” for the purposes of the AECA and ITAR. But Defendants clearly believe to the contrary. Thus, Plaintiffs' contention that the grant of an injunction permitting them to post files that Defendants contend are governed by the AECA and ITAR would not bar Defendants from controlling “export” of such materials stand in sharp [contrast] to Defendants' assertion of the public interest. The Court thus does not believe Plaintiffs have met their burden as to the final two prongs necessary for granting Plaintiffs a preliminary injunction. Nonetheless, in an abundance of caution, the Court will turn to the core of Plaintiffs' motion for a preliminary injunction, whether they have shown a likelihood of success on their claims[.][FN11]

Plaintiffs–Appellants suggest the district court disregarded their paramount interest in protecting their constitutional rights. That is not so. The district court's decision was based not on discounting Plaintiffs–Appellants' interest but rather on finding that the public interest in national defense and national security is stronger here, and the harm to the government is greater than the harm to Plaintiffs–Appellants. We cannot say the district court abused its discretion on these facts.

Because both public interests asserted here are strong, we find it most helpful to focus on the balance of harm requirement, which looks to the relative harm to both parties if the injunction is granted or denied. If we affirm the district court's denial, but Plaintiffs–Appellants eventually prove they are entitled to a permanent injunction, their constitutional rights will have been violated in the meantime, but only temporarily. Plaintiffs–Appellants argue that this result is absurd because the Published Files are already available through third party websites such as the Pirate Bay, but granting the preliminary injunction sought by Plaintiffs–Appellants would allow them to share online not only the Published Files but also any new, previously unpublished files. That leads us to the other side of the balance of harm inquiry.

If we reverse the district court's denial and instead grant the preliminary injunction, Plaintiffs–Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR–15 lower receivers and additional 3D–printed weapons and weapon parts. Even if Plaintiffs–Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs–Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs–Appellants' constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

In sum, we conclude that the district court did not abuse its discretion in denying Plaintiffs–Appellants' preliminary injunction based on their failure to carry their burden of persuasion on two of the three non-merits requirements for preliminary injunctive relief, namely the balance of harm and the public interest. We therefore affirm the district court's denial and decline to reach the question of whether Plaintiffs–Appellants have demonstrated a substantial likelihood of success on the merits.[FN12]

We are mindful of the fact that the parties and the amici curiae in this case focused on the merits, and understandably so. This case presents a number of novel legal questions, including whether the 3D printing and/or CNC milling files at issue here may constitute protected speech under the First Amendment, the level of scrutiny applicable to the statutory and regulatory scheme here, whether posting files online for unrestricted download may constitute “export,” and whether the ITAR regulations establish an impermissible prior restraint scheme. These are difficult questions, and we take no position on the ultimate outcome other than to agree with the district court that it is not yet time to address the merits.

On remand, the district court eventually will have to address the merits, and it will be able to do so with the benefit of a more fully developed record. The amicus briefs submitted in this case were very helpful and almost all supported Plaintiffs–Appellants' general position. Given the importance of the issues presented, we may only hope that amici continue to provide input into the broader implications of this dispute.

Conclusion

For the reasons set out above, we conclude that the district court did not abuse its discretion by denying the preliminary injunction on the non-merits requirements.

AFFIRMED.

JONES, Circuit Judge, dissenting:

This case poses starkly the question of the national government's power to impose a prior restraint on the publication of lawful, unclassified, not-otherwise-restricted technical data to the Internet under the guise of regulating the “export” of “defense articles.” I dissent from this court's failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.

I.

From late 2012 to early 2013, plaintiff Defense Distributed posted on the Internet, free of charge, technical information including computer assisted design files (CAD files) about gun-related items including a trigger guard, two receivers, an ArmaLite Rifle–15 magazine,[DFN1] and a handgun named “The Liberator.” None of the published information was illegal, classified for national security purposes, or subject to contractual or other distribution restrictions. In these respects the information was no different from technical data available through multiple Internet sources from widely diverse publishers. From scientific discussions to popular mechanical publications to personal blog sites, information about lethal devices of all sorts, or modifications to commercially manufactured firearms and explosives, is readily available on the Internet.

What distinguished Defense Distributed's information at that time, however, was its computer files designed for 3D printer technology that could be used to “print” parts and manufacture, with the proper equipment and know-how, a largely plastic single-shot handgun. The Liberator technology drew considerable press attention[DFN2] and the relevant files were downloaded “hundreds of thousands of times.” In May 2013, Defense Distributed received a warning letter from the U.S. State Department stating in pertinent part:

DDTC/END is conducting a review of technical data made publicly available by Defense Distributed through its 3D printing website, DEFCAD.org, the majority of which appear to be related to items in Category I of the USML. Defense Distributed may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.

Pursuant to § 127.1 of the ITAR, it is unlawful to export any defense article or technical data for which a license or written approval is required without first obtaining the required authorization from the DDTC. Please note that disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad, is considered an export under § 120.17 of the ITAR.

The letter then advised Defense Distributed that it must “remove [its information] from public access” immediately, pending its prompt request for and receipt of approval from DDTC.

In a nearly forty-year history of munitions “export” controls, the State Department had never sought enforcement against the posting of any kind of files on the Internet. Because violations of the cited regulations carry severe civil and criminal penalties,[DFN3] Defense Distributed had no practical choice but to remove the information and seek approval to publish from DDTC. It took the government entities two years to refuse to exempt most of the files from the licensing regime.

Defense Distributed filed suit in federal court to vindicate, inter alia, its First Amendment right to publish without prior restraint[DFN4] and sought the customary relief of a temporary injunction to renew publication. This appeal stems from the district court's denial of relief. Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements.

This preliminary injunction request deserved our utmost care and attention. Interference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)); Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295–97 (5th Cir. 2012). Defense Distributed has been denied publication rights for over three years. The district court, moreover, clearly erred in gauging the level of constitutional protection to which this speech is entitled: intermediate scrutiny is inappropriate for the content-based restriction at issue here. (Why the majority is unwilling to correct this obvious error for the sake of the lower court's getting it right on remand is a mystery).

The district court's mischaracterization of the standard of scrutiny fatally affected its approach to the remaining prongs of the test for preliminary injunctive relief. Without a proper assessment of plaintiff's likelihood of success on the merits—arguably the most important of the four factors necessary to grant a preliminary injunction, Tesfamichael v. Gonzales, 411 F.3d 169, 176 (5th Cir. 2005)—the district court's balancing of harms went awry.[DFN5] We should have had a panel discussion about the government's right to censor Defense Distributed's speech.

Since the majority are close to missing in action, and for the benefit of the district court on remand, I will explain why I conclude that the State Department's application of its “export” control regulations to this domestic Internet posting appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint.

II.

A. Regulatory Framework

The Arms Export Control Act of 1976 (“AECA”) authorizes the President to “control the import and the export of defense articles and defense services.” 22 U.S.C. § 2778(a)(1). The President “is authorized to designate those items which shall be considered as defense articles and defense services ... and to promulgate regulations for the import and export of such articles and services.” Id. “The items so designated shall constitute the United States Munitions List.” Id. The statute does not define “export,” but “defense items” includes defense articles, defense services “and related technical data.” 22 U.S.C. § 2778(j)(4)(A).

In response to this directive, the State Department promulgated the International Traffic in Arms Regulations (“ITAR”), which contain the United States Munitions List (“USML”). 22 C.F.R. § 121.1. The USML enumerates a vast array of weaponry, ammunition, and military equipment including, for present purposes, “firearms,” defined as “[n]onautomatic and semi-automatic firearms to caliber .50 inclusive,” 22 C.F.R. § 121.1, Category I, item (a).

The USML also broadly designates “technical data” relating to firearms as subject to the ITAR. 22 C.F.R. § 121.1, Category I, item (i). “Technical data” encompass any information “which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles including “information in the form of blueprints, drawings, photographs, plans, instructions or documentation.” 22 C.F.R. § 120.10(a)(1).

Notably excepted from “technical data” is information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain.” 22 C.F.R. § 120.10(b). Further, the “public domain” covers “information which is published and which is generally accessible or available to the public” through newsstands, bookstores, public libraries, conferences, meetings, seminars, trade shows, and “fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community.” 22 C.F.R. § 120.11(a).[DFN6]

Under the ITAR it is unlawful to “export or attempt to export from the United States any defense article or technical data” without first obtaining a license or written approval from the Directorate of Defense Trade Controls (“DDTC”), a division of the State Department. 22 C.F.R. § 127.1(a)(1). When Defense Distributed published technical data on the Internet, the State Department defined “export” broadly, as, inter alia, “[d]isclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad.” 22 C.F.R. § 120.17(a)(4).[DFN7]

In order to resolve doubts about whether an “export” is covered by ITAR, parties may request a “commodity jurisdiction” determination from the DDTC, which will determine each request on a “case-by-case basis,” 22 C.F.R. § 120.4(a), taking into account “the form and fit of the article; and [t]he function and performance capability of the article.” 22 C.F.R. § 120.4 (d)(2)(i)–(ii).

The commodity jurisdiction process could, in theory, be avoided if the particular export is exempt from the DDTC process. 22 C.F.R. § 125.4. As relevant here, “[t]echnical data approved for public release (i.e., unlimited distribution) by the cognizant U.S. Government department or agency or Office of Freedom of Information and Security Review” is exempt from the DDTC approval process. 22 C.F.R. § 125.4(b)(13). Under this rubric, the Defense Office of Prepublication and Security Review (“DOPSR”), housed in the Department of Defense's Defense Technical Information Center, “is responsible for managing the Department of Defense security review program, [and] reviewing written materials both for public and controlled release.” Defense Office of Prepublication and Security Review (DOPSR), EXECUTIVE SERVS. DIRECTORATE ONLINE, http://www.dtic.mil/whs/esd/osr/ (last visited Aug. 22, 2016). The plaintiff's experience suggests that, in practice, DOPSR will not act on requests for exemptions concerning items not clearly subject to the ITAR until DDTC issues a commodity jurisdiction determination.

The DDTC is required to provide a final commodity jurisdiction determination within 45 days of a commodity jurisdiction request, but if it is not then resolved, an applicant may request expedited processing. 22 C.F.R. § 120.4(e). The DDTC has been criticized by the Government Accountability Office and the Office of Inspector General for routinely failing to meet deadlines. In this case, it took nearly two years for DDTC to rule on the plaintiff's commodity jurisdiction applications. Although an applicant may appeal an unfavorable commodity jurisdiction determination within the State Department, Id. § 120.4(g), Congress has excluded from judicial review the agency's discretionary decisions in “designat[ing] ... items as defense articles or defense services.” 22 U.S.C. § 2778(h); 22 C.F.R. § 128.1.[DFN8]

Should the DDTC determine, as here, that technical data are subject to the ITAR, an “export” license is required before the information may be posted online. But the license may be denied whenever the State Department “deems such action to be in furtherance of world peace, the national security of the United States, or is otherwise advisable.” 22 C.F.R. § 126.7(a)(1). There is a nominal 60–day deadline for a licensing decision, which is riddled with exceptions, and denial of an export license is expressly exempt from judicial review. See 22 C.F.R. § 128.1.

I would hardly deny that the Department of Justice has good grounds for prosecuting attempts to export weapons and military technology illegally to foreign actors. Previous prosecutions have targeted defendants, e.g., who attempted to deliver WMD materials to North Korea, who sought to distribute drone and missile schematics to China, and who attempted to license chemical purchasing software to companies owned by the Iranian government.[DFN9] Defense Distributed agrees, moreover, that the Government may prosecute individuals who email classified technical data to foreign individuals or directly assist foreign actors with technical military advice. See, e.g., United States v. Edler Industries, Inc., 579 F.2d 516 (9th Cir. 1978), construing prior version of AECA. Yet, as plaintiff points out, at the time that DDTC stifled Defense Distributed's online posting, there were no publicly known enforcement actions in which the State Department purported to require export licenses or prior approval for the domestic posting of lawful, unclassified, not-otherwise-restricted information on the Internet.

While Defense Distributed has been mired in this thicket of regulation, the CAD files that it published continue to be available to the international public to this day on websites such as the Pirate Bay. Moreover, technology has not stood still: design files are now available on the Internet for six- and eight-shot handguns that can be produced with 3D printing largely out of plastic materials. See, e.g., Scott J. Grunewald, “The World's First Fully Printed Revolver is Here”, 3DPrintBoard.com (Nov. 23, 2015) (site visited 9/14/2016).

B. Discussion

As applied to Defense Distributed's publication of technical data, the State Department's prepublication approval and license scheme lacks statutory and regulatory authorization and invades the plaintiff's First Amendment rights because it is both a content-based regulation that fails strict scrutiny and an unconstitutional prior restraint on protected speech.[DFN10]

1. The Statute and its Regulatory Interpretation.

Whether AECA itself, concerned with the “export” of defense article related technical data, authorizes prepublication censorship of domestic publications on the Internet is at least doubtful. Further, construing the State Department's regulations for such a purpose renders them incoherent and unreasonable.

It is necessary first to analyze the statute under which the State Department presumed to enact its regulations and, under the first prong of Chevron analysis, what the statute means.[DFN11] The term “export” is not defined in the AECA, is not a term of legal art, and is not ambiguous. Under standard canons of statutory construction, “export” should bear its most common meaning. According to dictionaries, the verb “export” means “to ship (commodities) to other countries or places for sale, exchange, etc.” United States v. Ehsan, 163 F.3d 855, 859 (4th Cir. 1998) (citing The Random House Dictionary of the English Language 682 (2d ed.1987)); Export, Black's Law Dictionary (10th ed. 2014) (“To send, take, or carry (a good or commodity) out of the country; to transport (merchandise) from one country to another in the course of trade”); United States v. Dien Duc Huynh, 246 F.3d 734, 741 (5th Cir. 2001) (“Exportation occurs when the goods are shipped to another country”). As the court explained in Ehsan, which interpreted a Presidential proclamation banning “exportation” of goods or technology to Iran, “[t]hese definitions vary in specificity, but all make clear that exportation involves the transit of goods from one country to another for the purpose of trade.” Id. See also Swan v. Finch Co. v. United States, 190 U.S. 143, 145, 23 S.Ct. 702, 47 L.Ed. 984 (1903)  (the “legal notion...of exportation is a severance of goods from the mass of things belonging to this country with an intention of uniting them to things belonging to some foreign country or another”). As against a claim that the rule of lenity should apply, the Ehsam court explicitly held that “export” is unambiguous. Id. at 859–60

Given this construction of “export” by a fellow circuit court, we have no reason to hold that Congress deviated from the term's plain meaning, particularly so significantly as to encompass the domestic publication on the Internet, without charge and therefore without any “trade,” of lawful, nonclassified, nonrestricted information. “Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” King v. Burwell, ––– U.S. ––––, 135 S.Ct. 2480, 2495, 192 L.Ed.2d 483 (2015) (internal quotation omitted). Pursuant to Chevron, where the meaning of a statute is plain, a federal agency has no warrant to act beyond the authority delegated by Congress. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The State Department's briefing makes no effort to address the statutory language, which must be read in light of established case law and the term's ordinary meaning and the rule of constitutional avoidance.

This determination of the meaning of “export” under Chevron step one would normally resolve the case. For the sake of argument, however, it is also clear that the State Department regulations fail the second step as well. Under the second step of Chevron analysis, they may be upheld only if they represent a “reasonable” construction of the statute. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Defense Distributed and its amici challenge the regulations' interpretation of “export” and the “public domain” exception to the definition of “technical data.” Although the majority opinion adopts the State Department's litigating position that “export” refers only to publication on the Internet, where the information will inevitably be accessible to foreign actors, the warning letter to Defense Distributed cited the exact, far broader regulatory definition: “export” means “disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States of abroad.” There is embedded ambiguity, and disturbing breadth, in the State Department's discretion to prevent the dissemination (without an “export” license) of lawful, non-classified technical data to foreign persons within the U.S. The regulation on its face, as applied to Defense Distributed, goes far beyond the proper statutory definition of “export.”

Even if “export” in AECA could bear a more capacious interpretation, applying the State Department's regulatory interpretation to the non-transactional publication of Defense Distributed's files on the Internet is unreasonable. In terms of the regulations themselves, how this expansive definition of “export” interacts with the “public domain” exception is unclear at best. If any dissemination of information bearing on USML technical data to foreign persons within the U.S. is potentially an “export,” then facilitating domestic publication of such information free of charge can never satisfy the “public domain” exception because newspapers, libraries, magazines, conferences, etc. may all be accessed by foreign persons. The State Department's ipse dixit that “export” is consistent with its own “public domain” regulation is incoherent and unreasonable. Even if these regulations are consistent, however, attempting to exclude the Internet from the “public domain,” whose definition does not currently refer to the Internet, is irrational and absurd. The Internet has become the quintessential “public domain.” The State Department cannot have it both ways, broadly defining “export” to cover non-transactional publication within the U.S. while solely and arbitrarily excluding from the “public domain” exception the Internet publication of Defense Distributed's technical data. 

The root of the problem is that the State Department's litigating position and its regulations put more weight on “export” than any reasonable construction of the statute will bear. “Export” and “publication” are functionally different concepts. Cf. Bond v. United States, ––– U.S. ––––, 134 S.Ct. 2077, 2090, 189 L.Ed.2d 1 (2014) (“[s]aying that a person ‘used a chemical weapon’ conveys a very different idea than saying the person ‘used a chemical in a way that caused some harm.’ ” Not only does the State Department fail to justify according its interpretation Chevron deference, but the doctrine of constitutional avoidance establishes that Chevron deference would be inappropriate anyway. That doctrine provides that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988); see also id. at 574–75, 108 S.Ct. 1392 (stating that although the agency interpretation at issue “would normally be entitled to deference,” “[a]nother rule of statutory construction [constitutional avoidance] ... is pertinent here”); see also Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference.”). As the following constitutional discussion shows, the Executive Branch has consistently recognized the conceptual difference between “export” and “publication”, and its constitutional significance, throughout the forty-year history of the AECA. It is only the novel threatened enforcement in this case that brings to the fore the serious problems of censorship that courts are bound to address.

2. The First Amendment—Content-based speech restriction.

“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). “Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227. “A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter:” consequently, even a viewpoint neutral law can be content-based. Id. at 2230. “Strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based.” Id. at 2228.

The prepublication review scheme at issue here would require government approval and/or licensing of any domestic publication on the Internet of lawful, non-classified “technical information” related to “firearms” solely because a foreign national might view the posting. As applied to the publication of Defense Distributed's files, this process is a content-based restriction on the petitioners' domestic speech “because of the topic discussed.” Reed, 135 S.Ct. at 2227. Particularly relevant to this case is Holder v. Humanitarian Law Proj., 561 U.S. 1, 27–28, 130 S.Ct. 2705, 2723–24, 177 L.Ed.2d 355 (2010), in which the Supreme Court held that as applied, a criminal statute forbidding the provision of material support and resources to designated terrorist organizations was content based and required strict scrutiny review. The Court there rejected the government's assertion that although the plaintiffs were going to provide legal training and political advocacy to Mideast terrorist organizations, the statute criminalized “conduct” and only incidentally affected “speech.” Rejecting this incidental burden argument for intermediate scrutiny review, the Court stated the obvious: “[p]laintiffs want to speak to the PKK and the LTTE, and whether they may do so under § 2239B depends on what they say:” if their speech concerns “specialized knowledge” it is barred, but it “if it imparts only general or unspecialized knowledge” it is permissible). Humanitarian Law Proj., 130 S.Ct. at 2724.

The State Department barely disputes that computer-related files and other technical data are speech protected by the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445–49 (2d Cir. 2001) (discussing level of scrutiny owed for “speech” in the form of a decryption computer program). There are CAD files on the Internet and designs, drawings, and technical information about myriad items—jewelry, kitchen supplies, model airplanes, or clothing, for example—that are of no interest to the State Department. Only because Defense Distributed posted technical data referring to firearms covered generically by the USML does the government purport to require prepublication approval or licensing. This is pure content-based regulation.[DFN12]

The Government's argument that its regulatory scheme is content-neutral because it is focused on curbing harmful secondary effects rather than Defense Distributed's primary speech is unpersuasive. The Supreme Court explained this distinction in Boos v. Barry, which overturned an ordinance restricting criticism of foreign governments near their embassies because it “focus[es] on the direct impact of speech on its audience.” Secondary effects of speech, as the Court understood, include “congestion, [ ] interference with ingress or egress, [ ] visual clutter, or [ ] the need to protect the security of embassies”, which are the kind of regulations that underlie Renton v. Playtime Theaters. 485 U.S. 312, 321, 108 S.Ct. 1157, 1163–64, 99 L.Ed.2d 333 (1988). Similarly, the regulation of speech here is focused on the “direct impact of speech on its audience” because the government seeks to prevent certain listeners—foreign nationals—from using the speech about firearms to create guns.

The State Department also asserts that the ITAR regulatory scheme is not content-based because the information here at issue is “functional,” that is, that downloading the Defense Distributed files directly enables the creation of 3D printed gun and gun components “at the push of a button.” This argument is flawed factually and legally. First, more than CAD (or CNC) files are involved in the information sought to be regulated by the State Department: its warning letter to Defense Distributed identified both “files” and “technical data,” which include design drawings, rendered images, and written manufacturing instructions. Second, CAD files do not “direct a computer” to do anything. As the amicus Electronic Frontier Foundation explains, “[T]o create a physical object based on a CAD file, a third party must supply additional software to read these files and translate them into the motions of a 3D print head, the 3D printer itself, and the necessary physical materials.” The person must provide know-how, tools and materials to assemble the printed components, e.g. treating some parts of the Liberator with acetone to render them functional. In effect, the “functionality” of CAD files differs only in degree from that of blueprints. Legally, this argument is an attempt to fit within the Corley case, referenced above, which concerned a computer program that by itself provided a “key” to open otherwise copyright-restricted online materials; those facts are far afield from the technical data speech at issue here. Corley, 273 F.3d at 449–55.

Because the regulation of Defense Distributed's speech is content-based, it is necessary to apply strict scrutiny. The district court erred in applying the lower intermediate scrutiny standard. I would not dispute that the government has a compelling interest in enforcing the AECA to regulate the export of arms and technical data governed by the USML. The critical issue is instead whether the government's prepublication approval scheme is narrowly tailored to achieve that end. A regulation is not narrowly tailored if it is “significantly overinclusive.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 121, 112 S.Ct. 501, 511, 116 L.Ed.2d 476 (1991).

“[S]ignificantly overinclusive,” however, aptly describes the Government's breathtaking assertion of prepublication review and licensing authority as applied in this case. To prevent foreign nationals from accessing technical data relating to USML-covered firearms, the government seeks to require all domestic posting on the Internet of “technical data” to be pre-approved or licensed by the DDTC. No matter that citizens have no intention of assisting foreign enemies directly, communications about firearms on webpages or blogs must be subject to prior approval on the theory that a foreign national might come across the speech. This flies in the face of Humanitarian Law Project. Although a statute prohibiting the provision of “material support and resources” to designated terrorist groups did not violate First Amendment rights where plaintiffs intended to directly assist specific terrorist organizations, the Court “in no way suggest[ed] that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations ... [or] that Congress could extend the same prohibition on material support at issue here to domestic organizations.” 561 U.S. at 36–39, 130 S.Ct. at 2729–30. The State Department's ITAR regulations, as sought to be applied here, plainly sweep in and would control a vast amount of perfectly lawful speech.

Two exceptions to the regulations do not eliminate the problem of overinclusiveness. First, general scientific, mechanical, or engineering principles taught in schools is deemed exempt from ITAR as information in the public domain. This exception does not, however, appear to save from potential regulation and licensing the amateur gunsmith or hobby shooter who discusses technical information about the construction of firearms on an Internet webpage. Any information so shared is not necessarily “general scientific, mechanical, or engineering principles taught in schools.” Underscoring this problem, at oral argument the government would not definitively answer whether the State Department would purport to regulate the posting of such unclassified technical data that appeared in library books or magazines like Popular Mechanics.

Second, the State Department has taken the position in this litigation that the “public domain” exception applies only to information already in the public domain. Its interpretation of the technical data regulations would permit the DDTC to stifle online discussion of any innovations related to USML-covered firearms because new information would, by definition, not be in the public domain already. Amicus Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression correctly expresses fear about journalists' ability to report, without DDTC approval, on the latest technological innovations related to any items covered by the USML.

Lest this concern of overinclusiveness be perceived as hyperbole, consider that in 2013, CNET published an article containing an unredacted copy of a document detailing performance requirements for unmanned U.S. military surveillance drones.[DFN13] Should CNET have applied for approval or a license from the DDTC prior to publication? The State Department's interpretation of the regulations could lead to that conclusion. See 22 C.F.R. § 121.1, Category VIII, item (i) (technical data related to aircraft and related articles). The USML-related technical discussed there (1) were “exported” because of their availability to foreign persons by publication on the Internet, and (2) the “public domain” exception would be of no avail since the information had not been in the public domain (narrowly defined to exclude the Internet) before publication in the CNET article. On the Government's theory, journalists could be subject to the ITAR for posting articles online.

The State Department also asserts that, somehow, the information published by Defense Distributed would have survived regulatory scrutiny (query before or after submission to DDTC?) if the company had “verified the citizenship of those interested in the files, or by any other means adequate to ensure that the files are not disseminated to foreign nationals.” Government brief at 20. Whatever this means, it is a ludicrous attempt to narrow the ambit of its regulation of Internet publications. Everyone knows that personally identifying information can be fabricated on electronic media. Equally troubling, if the State Department truly means what it says in brief about screening out foreign nationals, then the “public domain” exception becomes useless when applied to media like print publications and TV or to gatherings open to the public.

In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, “The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis....” The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public's burden to prove their right to discuss lawful, non-classified, non-restricted technical data. As applied to Defense Distributed's online publication, these overinclusive regulations cannot be narrowly tailored and fail strict scrutiny.

3. The First Amendment—Prior Restraint.

The Government's prepublication approval and licensing scheme also fails to pass constitutional muster because it effects a prior restraint on speech. The classic description of a prior restraint is an “administrative [or] judicial order[ ] forbidding certain communications when issued in advance of the time that such communications are to occur.” Catholic Leadership Coalition of Tex. v. Reisman, 764 F.3d 409, 437 (5th Cir. 2014) (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993)). The State Department's prepublication review scheme easily fits the mold.

Though not unconstitutional per se, any system of prior restraint bears a heavy presumption of unconstitutionality. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990). Generally, speech licensing schemes must avoid two pitfalls. First the licensors must not exercise excessive discretion. Catholic Leadership Coalition, 764 F.3d at 437 (citing Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 2144, 100 L.Ed.2d 771 (1988)). “[N]arrowly drawn, reasonable and definite standards” should guide the licensor in order to avoid “unbridled discretion” that might permit the official to “encourag[e] some views and discourag[e] others through the arbitrary application” of the regulation. Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 133, 112 S.Ct. 2395, 2402–03, 120 L.Ed.2d 101 (1992).

Second, content-based[DFN14] prior restraints must contain adequate procedural protections. The Supreme Court has requires three procedural safeguards against suppression of protected speech by a censorship board: (1) any restraint before judicial review occurs can be imposed for only a specified brief period of time during which the status quo is maintained; (2) prompt judicial review of a decision must be available; and (3) the censor must bear the burdens of going to court and providing the basis to suppress the speech. N.W. Enters. v. City of Houston, 352 F.3d 162, 193–94 (5th Cir. 2003) (citing Freedman v. Maryland, 380 U.S. 51, 58–59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965)). In sum, a court reviewing a system of prior restraint should examine “both the law's procedural guarantees and the discretion given to law enforcement officials.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006); see also East Brooks Books, Inc. v. Shelby Cty., 588 F.3d 360, 369 (6th Cir. 2009); Weinberg v. City of Chi., 310 F.3d 1029, 1045 (7th Cir. 2002).

To the extent it embraces publication of non-classified, non-transactional, lawful technical data on the Internet, the Government's scheme vests broad, unbridled discretion to make licensing decisions and lacks the requisite procedural protections. First, as explained above, the “export” regulations' virtually unbounded coverage of USML-related technical data posted to the Internet, combined with the State Department's deliberate ambiguity in what constitutes the “public domain,” renders application of ITAR regulations anything but “narrow, objective, and definite.” The stated standards do not guide the licensors to prevent unconstitutional prior restraints. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). The State Department's brief actually touts the case-by-case nature of the determination whether to prevent Internet publication of technical data.[DFN15]

In City of Lakewood v. Plain Dealer Publishing Co., for example, the Supreme Court held that a city ordinance insufficiently tailored the Mayor's discretion to issue newspaper rack permits because “the ordinance itself contains no explicit limits on the mayor's discretion” and “nothing in the law as written requires the mayor to do more than make the statement ‘it is not in the public interest’ when denying a permit application.” 486 U.S. at 769, 108 S.Ct. at 2150–51. Like the “illusory ‘constraints' ” in Lakewood, id. at 769, 108 S.Ct. 2138, 2144, the ITAR prepublication review scheme offers nothing but regulatory (or prosecutorial) discretion, as applied to the technical data at issue here, in lieu of objective standards. Reliance on the censor's good faith alone, however, “is the very presumption that the doctrine forbidding unbridled discretion disallows.” Id. at 770, 108 S.Ct. 2138, 2144. Cf. Humanitarian Law Project, 130 S.Ct. at 2728 (listing numerous ways in which Congress had exhibited sensitivity to First Amendment concerns by limiting and clarifying a statute's application and “avoid[ing] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups”).

Just as troubling is the stark lack of the three required procedural protections in prior restraint cases. Where a commodity jurisdiction application is necessary, the alleged 45–day regulatory deadline for such determinations seems to be disregarded in practice; nearly two years elapsed between Defense Distributed's initial request and a response from the DDTC. Further, the prescribed time limit on licensing decisions, 60 days, is not particularly brief. See Teitel Film Corp. v. Cusack, 390 U.S. 139, 141, 88 S.Ct. 754, 756, 19 L.Ed.2d 966 (1968).

More fundamentally, Congress has withheld judicial review of the State Department's designation of items as defense articles or services. See 22 U.S.C. § 2778(h); 22 C.F.R. § 128.1 (precluding judicial view of the Executive's implementation of the AECA under the APA). The withholding of judicial review alone should be fatal to the constitutionality of this prior restraint scheme insofar as it involves the publication of unclassified, lawful technical data to the Internet. See City of Littleton, Colo. v. Z.J. Gifts D–4, LLC, 541 U.S. 774, 781, 124 S.Ct. 2219, 2224, 159 L.Ed.2d 84 (2004) (noting that the Court's decision in FW/PBS, Inc. v. City of Dallas, interpreting Freedman 's “judicial review” safeguard, requires “a prompt judicial decision,” as well as prompt access to the courts). And where judicial review is thwarted, it can hardly be said that DDTC, as the would-be censor, can bear its burden to go to court and support its actions.

C. The Government's Interest, Balancing the Interests

A brief discussion is necessary on the balancing of interests as it should have been done in light of the facts of this case. No one doubts the federal government's paramount duty to protect the security of our nation or the Executive Branch's expertise in matters of foreign relations. Yet the Executive's mere incantation of “national security” and “foreign affairs” interests do not suffice to override constitutional rights. The Supreme Court has long declined to permit the unsupported invocation of “national security” to cloud the First Amendment implications of prior restraints. See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (reversing the grant of an injunction precluding the New York Times and the Washington Post from publishing the Pentagon Papers, a classified study of United States involvement in Vietnam from 1945–1967); id. at 730, 91 S.Ct. 2140 (Stewart, J., concurring) (noting that because he cannot say that disclosure of the Pentagon Papers “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” publication may not be enjoined consonant with the First Amendment). Indeed, only the most exceptional and immediate of national security concerns allow a prior restraint on speech to remain in place:

the protection as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.... [n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931); cf. Haig v. Agee, 453 U.S. 280, 306–08, 101 S.Ct. 2766, 2781–82, 69 L.Ed.2d 640 (1981) (holding that the Secretary of State's revocation of Haig's passport did not violate First Amendment rights because his actions exposing undercover CIA agents abroad threatened national security). No such exceptional circumstances have been presented in this case. Indeed, all that the majority can muster to support the government's position here is that

the State Department's stated interest in preventing foreign nationals—including manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

Neither the district court nor the State Department offers anything else.[DFN16] With that kind of reasoning, the State Department could wholly eliminate the “public domain” and “scholarly” exceptions to the ITAR and require prepublication approval of all USML-related technical data. This is clearly not what the Supreme Court held in the Pentagon Papers or Near cases. See generally L.A. Powe, Jr., The H–Bomb Injunction, 61 U.Colo.L.Rev. 55 (1990).

Without any evidence to the contrary, the court should have held that the domestic Internet publication of CAD files and other technical data for a 3D printer-enabled making of gun parts and the Liberator pistol presents no immediate danger to national security, especially in light of the fact that many of these files are now widely available over the Internet and that the world is awash with small arms.[DFN17]

Further, the government's pro-censorship position in this case contradicts the express position held within the Executive Branch for the nearly forty-year existence of the AECA. The State Department's sudden turnabout severely undercuts its argument that prepublication review and licensing for the publication of unclassified technical data is justified by pressing national security concerns. Indeed, in the late 1970s and early 1980s, at the height of the Cold War, the Department of Justice's Office of Legal Counsel repeatedly offered written advice that a prepublication review process would raise significant constitutional questions and would likely constitute an impermissible prior restraint, particularly when applied to unclassified technical data disseminated by individuals who do not possess specific intent to deliver it to particular foreign nationals. Further, in a 1997 “Report on the Availability of Bombmaking Information,” the Department of Justice observed the widespread availability of bombmaking instructions on the Internet, in libraries, and in magazines. The Department of Justice then argued against government censorship, concluding that despite the distinct possibility that third parties can use bombmaking instructions to engage in illegal conduct, a statute “proscrib[ing] indiscriminately the dissemination of bombmaking information” would face First Amendment problems because the government may rarely prevent the dissemination of truthful information.[DFN18]

With respect to the ITAR's regulation of “technical data,” DDTC's director has taken the position in litigation that the State Department “does not seek to regulate the means themselves by which information is placed in the public domain” and “does not review in advance scientific information to determine whether it may be offered for sale at newsstands and bookstores, through subscriptions, second-class mail, or made available at libraries open to the public, or distributed at a conference or seminar in the United States.” Second Declaration of William J. Lowell Department of State Office of Defense Trade Controls at 11, Bernstein v. U.S. Dep't of State, 945 F. Supp. 1279 (N.D. Cal. 1996). Moreover, he added, “the regulations are not applied to establish a prepublication review requirement for the general publication of scientific information in the United States.” Id.

Finally, the State Department's invocation of unspecified national security concerns flatly contradicts its contention that while Defense Distributed's very same technical data cannot be published on the Internet, they may be freely circulated within the U.S. at conferences, meetings, trade shows, in domestic print publications and in libraries. (Of course, as above noted, the Government's sincerity on this point is subject to doubt, based on the determined ambiguity of its litigating position.) After all, if a foreign national were to attend a meeting or trade show, or visit the library and read a book with such information in it, under the Government's theory, the technical data would have been “exported” just like the Internet posts, because it was “[d]isclos[ed] (including oral or visual disclosure) ... to a foreign person ... in the United States or abroad.” Id. § 120.17(a)(4).

* * *

By refusing to address the plaintiffs' likelihood of success on the merits and relying solely on the Government's vague invocation of national security interests, the majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department's tenuous and aggressive invasion of citizens' rights. The majority's non-decision here encourages case-by-case adjudication of prepublication review “requests” by the State Department that will chill the free exchange of ideas about whatever USML-related technical data the government chooses to call “novel,” “functional,” or “not within the public domain.” It will foster further standardless exercises of discretion by DDTC censors.

Today's target is unclassified, lawful technical data about guns, which will impair discussion about a large swath of unclassified information about firearms and inhibit amateur gunsmiths as well as journalists. Tomorrow's targets may be drones, cybersecurity, or robotic devices, technical data for all of which may be implicated on the USML. This abdication of our decisionmaking responsibility toward the First Freedom is highly regrettable. I earnestly hope that the district court, on remand, will take the foregoing discussion to heart and relieve Defense Distributed of this censorship.

Footnotes

[FN1] The district court capably summarized the facts in its memorandum opinion and order. See Def. Distributed v. U.S. Dep't of State, 121 F.Supp.3d 680, 686–88 (W.D. Tex. 2015). The facts set out in this opinion come largely from the district court's opinion and the parties' briefs.

[FN2] Plaintiffs–Appellants' Original Brief on Appeal.

[FN3] See Def. Distributed v. U.S. Dep't of State, 121 F.Supp.3d 680, 687–88 (W.D. Tex. 2015).

[FN4] The State Department does not restrict the export of the Ghost Gunner machine itself or the user manual, only the specific CNC milling files used to produce the AR–15 lower receivers with it, as well as all 3D printing files used to produce prohibited weapons and weapon parts.

[FN5] PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (footnotes omitted)

[FN6] Id.

[FN7] Id. at 187–88.

[FN8] See Def. Distributed, 121 F.Supp.3d at 689 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009); Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011)).

[FN9] Id. at 689.

[FN10] Id.

[FN11] Id. at 689–90.

[FN12] The dissent disagrees with this opinion's conclusion that the balance of harm and public interest factors favor the State Department such that Plaintiffs–Appellants' likelihood of success on the merits could not change the outcome. The dissent argues that we “should have held that the domestic internet publication” of the technical data at issue presents no “immediate danger to national security, especially in light of the fact that many of these files are now widely available over the Internet and that the world is awash with small arms.”

We note the following: (1) If Plaintiffs–Appellants' publication on the Internet were truly domestic, i.e., limited to United States citizens, there is no question that it would be legal. The question presented in this case is whether Plaintiffs–Appellants may place such files on the Internet for unrestricted worldwide download. (2) This case does not concern only the files that Plaintiffs–Appellants previously made available online. Plaintiffs–Appellants have indicated their intent to make many more files available for download as soon as they are legally allowed to do so. Thus, the bulk of the potential harm has not yet been done but could be if Plaintiffs–Appellants obtain a preliminary injunction that is later determined to have been erroneously granted. (3) The world may be “awash with small arms,” but it is not yet awash with the ability to make untraceable firearms anywhere with virtually no technical skill. For these reasons and the ones we set out above, we remain convinced that the potential permanent harm to the State Department's strong national security interest outweighs the potential temporary harm to Plaintiffs–Appellants' strong First Amendment interest.

As to the dissent's extensive discussion of Plaintiffs–Appellants' likelihood of success on the merits of the First Amendment issue, we take no position. Even a First Amendment violation does not necessarily trump the government's interest in national defense. We simply hold that Plaintiffs–Appellants have not carried their burden on two of the four requirements for a preliminary injunction: the balance of harm and the public interest. 

[DFN1] The ArmaLite Rifle, design 15 is rifle platform commonly abbreviated AR–15, a registered trademark of Colt's Inc. AR–15, Registration No. 0,825,581.

[DNF2] According to Defense Distributed, the Liberator files were covered, inter alia, by Forbes, CNN, NBC News, and the Wall Street Journal.

[DFN3] Fines may exceed a million dollars and imprisonment, for violations premised on specific intent to violate, up to twenty years. 28 U.S.C. § 2778(c); United States v. Covarrubias, 94 F.3d 172 (5th Cir. 1996).

[DFN4] To simplify discussion, I refer to Defense Distributed as the plaintiff, but it is joined in litigation by the Second Amendment Foundation, and its arguments are adopted and extended by numerous amici curiae. Believing that the deprivation of a merits opinion is most critical to Defense Distributed's First Amendment claim, I do not discuss the plaintiffs' other non-frivolous claims premised on ultra vires, the Second Amendment and procedural due process.

[DFN5] See Tex. v. Seatrain Int'l, S.A., 518 F.2d 175, 180 (5th Cir. 1975) (“none of the four prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus.”). Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. 1982), is the only case relied upon by the majority for the proposition that we may dispense with addressing the likelihood of success on the merits if we conclude that the parties have not satisfied one of the other elements of the test for granting a preliminary injunction. That case is distinguishable. First, Southern Monorail was a private action concerning trademark infringement, not a case involving a claim of the invasion of constitutional rights by the federal government. See id. at 185–86. Second, “the district court denied the injunction solely on the basis of the third factor, concerning the balance of harm.” Id. at 186 (emphasis added). In this case, by contrast, the district court addressed each of the preliminary injunction factors, thus allowing us to consider its resolution of each factor.

[DFN6] This provision only appears to permit dissemination of information already in the public domain. Indeed, the State Department has explicitly taken the position in this litigation and in a June 2015 Notice of Proposed Rulemaking that an individual wishing to place technical data in the public domain must obtain State Department approval. 80 Fed. Reg. at 31,528. The State Department has proposed, but has not yet adopted, a rule to make this distinction more explicit. See id.

[DFN7] Effective September 1, 2016, however, the State Department has amended that provision, now defining an export as, “[r]eleasing or otherwise transferring technical data to a foreign person in the United States.” Id. § 120.17(a)(2); see also International Traffic in Arms: Revisions to Definition of Export and Related Definitions, 81 Fed. Reg. 35,611, 35,616 (June 3, 2016). Moreover, in June 2015, the State Department issued a Notice of Proposed Rulemaking, which proposed adding to the term “export” “[m]aking technical data available via a publicly available network (e.g., the Internet).” This, of course, is the open-ended definition of “export” urged by the State Department in this litigation. See International Traffic in Arms: Revisions to Definitions of Defense Services, Technical Data, and Public Domain, 80 Fed. Reg. 31,525, 31,535 (proposed June 3, 2015). The Notice advised that the State Department intends to address that definition in a separate rulemaking and for now allows the “existing ITAR controls [to] remain in place.” 81 Fed. Reg. at 35,613.

[DFN8] While 22 U.S.C. § 2778(h) withholds judicial review as noted, 22 C.F.R. § 128.1 purports more broadly to preclude judicial review over the Executive's implementation of the AECA under the Administrative Procedure Act. I would construe these provisions narrowly to avoid difficult questions that might arise were the Government to take the position that these provisions prevent judicial review for all claims, including those founded on the Constitution. See Kirby Corp v. Pena, 109 F.3d 258, 261 (5th Cir. 1997) (“There is a strong presumption that Congress intends there to be judicial review of administrative agency action ... and the government bears a ‘heavy burden’ when arguing that Congress meant to withdraw all judicial review.”); Dart v. United States, 848 F.2d 217, 221 (D.C. Cir. 1988) (“If the wording of a preclusion clause is less than absolute, the presumption of judicial review also favors a particular category of plaintiffs' claims.”); Cuozzo Speed Techs., LLC v. Lee, –––U.S. ––––, 136 S.Ct. 2131, 2142, 195 L.Ed.2d 423 (2016) (Agency “shenanigans” are “properly reviewable ... under the Administrative Procedure Act, which enables reviewing courts to set aside agency action that is contrary to constitutional right, in excess of statutory jurisdiction, or arbitrary [and] capricious.”) (internal quotations omitted).

[DFN9] See DEPARTMENT OF JUSTICE, SUMMARY OF MAJOR U.S. EXPORT ENFORCEMENT, ECONOMIC ESPIONAGE, TRADE SECRET AND EMBARGO–RELATED CRIMINAL CASES (January 2009 to the present: updated August 12, 2015) 3, 11, 86 (2015), available at https://www.pmddtc.state.gov/compliance/documents/OngoingExportCaseFactSheet.pdf.

[DFN10] For simplicity only, I do not here address plaintiffs' vagueness claim.

[DFN11] It is hard to say whether the State Department's interpretation of AECA should be analyzed under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) or United States v. Mead Corp., 533 U.S. 218, 227–28, 121 S.Ct. 2164, 2171–72, 150 L.Ed.2d 292 (2001). I refer to Chevron analysis arguendo because it captures both the statute and the reasonableness of the regulations.

[DFN12] The Ninth Circuit held in United States v. Mak that “the AECA and its implementing regulations are content-neutral” because “[t]he purpose of the AECA does not rest upon disagreement with the message conveyed,” and because “ITAR defines the technical data based on its function and not its viewpoint.” 683 F.3d 1126, 1134–35 (9th Cir. 2012). Mak is distinguishable for a number of reasons. First, the defendant was prosecuted for attempting to export to the People's Republic of China sensitive submarine technology loaded on unauthorized CDs and was arrested when he was carrying them aboard an international flight. Second, Mak was decided before Reed where the Supreme Court counseled that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” 135 S.Ct. at 2230. Third, even if the case is analyzed as a content-based restriction, Mak's prosecution falls comfortably within the traditional understanding of “export.” The government's heightened interest in national security is evident, and the Court required the government to prove beyond a reasonable doubt that the technical information he was carrying was not in the public domain.

[DFN13] See Declan McCullagh, DHS Built Domestic Surveillance Tech into Predator Drones, CNET (Mar. 2, 2013, 11:30 AM), http://www.cnet.com/news/dhs-built-domestic-surveillance-tech-into-predator-drones/.

[DFN14] As described above, the ITAR regulation of posting to the Internet technical data related to USML-covered firearms is content-based. Thus, it is subject to the procedural requirements set forth in Freedman v. Maryland.

[DFN15] Compounding confusion, the ITAR grant broad discretion to DDTC to deny an export license if it “deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable.” 22 C.F.R. § 126.7(a)(1) (emphasis added).

[DFN16] The State Department notes the fear that a single-shot pistol undetectable by metal-sensitive devices could be used by terrorists. The Liberator, however, requires a metal firing pin.

[DFN17] The Government also vaguely asserts that imposing a prior restraint upon the domestic publication of the technical data here is justified to protect foreign relations with other countries that have more restrictive firearms laws than the United States. Inflicting domestic speech censorship in pursuit of globalist foreign relations concerns (absent specific findings and prohibitions as in Humanitarian Law Project) is dangerous and unprecedented.

[DFN18] DEPARTMENT OF JUSTICE, 1997 REPORT ON THE AVAILABILITY OF BOMBMAKING INFORMATION 3, 5–7, 19–29 (1997).