U.S. v. Jasin

• Decision Date: 05 February 2002
• Docket Number: No. 00-4185.,00-4185.
• Citation: 280 F.3d 355
• Parties: UNITED STATES of America, v. Thomas P. JASIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 355

280 F.3d 355

UNITED STATES of America, v. Thomas P. JASIN, Appellant.

No. 00-4185.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a) December 7, 2001.

Filed: February 5, 2002.

Michael L. Levy, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney Chief of Appeals, Robert E. Goldman, David L. Hall, Assistant United States Attorneys, Office of the United States Attorney, Philadelphia, PA, Attorneys for Appellee.

Mark E. Haddad, Frank Menetrez, Sidley Austin Brown & Wood, Los Angeles, CA, Attorneys for Appellant.

Before ALITO, AMBRO, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on defendant Thomas P. Jasin's appeal from the district court's order entered on November 22, 2000, denying his motion for a new trial based on newly discovered evidence pursuant to Fed.R.Crim.P. 33. For the reasons we state herein, we will affirm.

I. BACKGROUND

During the mid to late-1980s, Thomas P. Jasin served as a high-ranking officer of ISC Technologies ("ISCT"), a subdivision of International Signal and Control ("ISC"), based in Lancaster, Pennsylvania. ISC designed, manufactured, sold and brokered sales of "medium to high technology electronic military equipment and systems for domestic and international customers." United States v. Jasin, No. CRIM. A. 91-00602-08, 1993 WL 259436, at *2 (E.D.Pa. July 7, 1993). James H. Guerin, its majority shareholder, founded ISC in 1971 and served as an officer and director of its several successor corporations after ISC went public in 1982.

From July 1984 until March 1986, Jasin was Vice President of International Marketing at ISCT, and from March 1986 until March 1987, he was its president. Jasin was demoted in March 1987, but he remained an employee at ISCT until March 1990. Throughout his tenure at ISCT, Jasin managed the Striker missile project involving the sale of South African anti-tank/anti-armor missiles, partially manufactured with United States parts and technology, to China. In exchange for brokering the deal, ISC was to realize a 35% commission on the sale, which was valued at $300-$500 million.

A grand jury indicted Jasin on October 30, 1991, on three counts relating to a massive, 11-year conspiracy to evade the international arms embargo against South Africa. The 67-count indictment against 19 codefendants, including as significant here, Robert Clyde Ivy, alleged that ISC, certain of its high-level officers and employees, and numerous South African nationals and corporations conspired to transfer millions of dollars worth of military weapons and components to and from South Africa through various front companies in violation of the Arms Export Control Act, 22 U.S.C. § 2778, the Comprehensive Anti Apartheid Act, 22 U.S.C. §§ 5001 et seq., and various provisions of the federal money laundering statutes, 18 U.S.C. §§ 1956, 1957. According to the government, ISC conspired with the Armaments Corporation of South Africa Ltd. ("Armscor") — a state-owned corporation developed to meet South Africa's armaments needs — to export American-made arms, munitions, and weapons technology to Armscor to enhance its inventory and enable it to market weapons systems to other countries. See App. 28. The government also alleged that ISC and Armscor conspired to import South African missile components into the United States for testing and evaluation to facilitate the sale of Striker missiles to China. See App. 31.

Count One charged Jasin with participating in the broad conspiracy to circumvent the arms embargo against South Africa. See App. 27-28. Count twenty-three charged him with violating the Arms Export Control Act by falsely stating to United States government agencies that the country of origin of certain pieces of military hardware was Italy when it was, in fact, South Africa. See App. 59. Finally, count twenty-four charged him with violating the Arms Export Control Act by exporting missile flight data and technology from the United States to South Africa without a license or written authorization from the United States Department of State. See App. 60. The government dismissed count twenty-three before trial because the statute of limitations had expired on that count.

During a five-week trial in November and December 1992, the government presented evidence that Jasin participated in the unlawful conspiracy through his management of the Striker missile project. In particular, the government established that Jasin was involved in the illegal export of American-made components, such as UVP lamp bulbs and Eagle Pitcher batteries, to South Africa for integration into the Striker missile. The government also offered proof that Jasin arranged to have South African missile components — including missile bodies, launch canisters, a cut-away model, and rocket motors — imported unlawfully into the United States by routing them through Italy. Finally, the prosecution presented evidence that Jasin illegally transferred certain technical data relating to wind tunnel testing of Striker missile components to and from South Africa.¹

Because of what he characterizes as poor trial preparation by his defense attorney, Jasin called only four witnesses at trial and was left with no alternative but to present nearly his entire case through his own testimony. See Br. of Appellant at 17. At trial he did not challenge the government's ample evidence proving the existence of a conspiracy to evade the arms embargo against South Africa, but argued that this mountain of evidence did not establish his involvement in or knowledge of the conspiracy.

For instance, Jasin admitted that he was aware of American-made lamp bulbs and batteries being sent to South Africa, but he testified that he had been advised that ISC had received authorization from Washington to export the components to South Africa. See App. 2218. He also conceded that he arranged to have the Striker missile components imported into the United States via Italy, but he insisted that he was under the honest but mistaken belief that such an arrangement was lawful as long as sufficient value had been added in Italy to make Italy the appropriate country of origin for purposes of complying with United States customs regulations. See App. 2203-04, 2211. Finally, he testified that he never intended the South Africans to receive any technical data from the wind tunnel testing of the Striker missile. See App. 2283-84, 2318. Although he acknowledged that the South Africans eventually obtained the test results, he maintained that the transfer of data occurred after he had been demoted, and, therefore, he was not responsible for or involved with the transfer. See App. 2328.

On December 10, 1992, the jury returned a verdict of guilty on count one relating to the conspiracy and not guilty on count twenty-four relating to the transfer of technical data. On July 16, 1998, the court sentenced Jasin to 24 months in prison, which represented a downward departure from his guideline range. Jasin appealed, but we affirmed his conviction and sentence in an unreported memorandum opinion dated August 12, 1999. See United States v. Jasin, 191 F.3d 446 (3d Cir.1999) (table). Jasin filed a petition for certiorari to the Supreme Court, but the Court denied his petition on January 24, 2000. See Jasin v. United States, 528 U.S. 1139, 120 S.Ct. 986, 145 L.Ed.2d 935 (2000).²

Jasin's current appeal relates strictly to proposed testimony of Robert Clyde Ivy, his former supervisor and a codefendant. Jasin urges that we should grant him a new trial at which he may present this testimony. From 1980 until 1989, Ivy served in various capacities as an officer and director of ISC, including Director and Chairman of the Board of ISCT, President of ISC, and CEO of ISC International. Jasin subpoenaed Ivy to testify at trial, but Ivy invoked his Fifth Amendment privilege against self-incrimination and refused to testify. After years of delay, Ivy eventually pleaded guilty and the court sentenced him to a six-month term of imprisonment, which he served in 1997.

On November 23, 1999, nearly two and a half years after Ivy began serving his sentence, an investigator Jasin hired visited Ivy at his home. Over the strong objections of his wife, Ivy agreed to answer the investigator's questions. According to the investigator, Ivy stated that Jasin had no knowledge of the illegal conspiracy and never attended any meetings where the conspiracy had been discussed. The investigator also reported that Ivy stated that he "want[ed] the truth to come out" and that "[t]here was no need for an innocent guy to go to jail like I did." App. 3933.

On December 7, 1999, Ivy signed an affidavit declaring: "I informed Jasin of Guerin's statements to me that ISC's exports of defense components to South Africa had Washington's approval." Ivy. Aff. ¶ 7 (App. 3939). He also stated in the affidavit that Jasin told him "in 1987 that ISC needed to be cautious that South Africans not obtain windtunnel data from tests conducted by ISC." Id. ¶ 8 (App. 3939). Based on Ivy's affidavit and his comments to the investigator, Jasin maintains that Ivy would provide exculpatory testimony if called as a witness at a new trial. Contending that good faith is a complete defense to each of the charges against him, Jasin argues that Ivy's testimony confirms Jasin's innocence by proving that Jasin operated under the good faith belief that Washington had approved the export of Striker missile components.

On September 28, 1999, Jasin filed a pro se motion for a new trial "pursuant to Fed.R.Crim.P. 33 based upon newly discovered evidence." In his initial filing, Jasin did not mention Ivy's testimony, for his investigator had not yet interviewed Ivy. Even after learning of Ivy's statement and obtaining an affidavit from Ivy, however, Jasin did not seek leave to amend his Rule 33 motion to include...