U.S. v. Van Hee, 75--1865

• Citation: 531 F.2d 352
• Decision Date: 23 February 1976
• Docket Number: No. 75--1865,75--1865
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Norton VAN HEE, a/k/a Paul N. Van Hee, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 352

531 F.2d 352

UNITED STATES of America, Plaintiff-Appellee, v. Paul Norton VAN HEE, a/k/a Paul N. Van Hee, Jr., Defendant-Appellant.

No. 75--1865.

United States Court of Appeals Sixth Circuit.

Argued Dec. 18, 1975.

Decided Feb. 23, 1976.

F. Lee Bailey, Stewart T. Herrick, Boston, Mass., for defendant-appellant.

Ralph B. Guy, Jr., U.S. Atty., Robert D. Sharp, Detroit, Mich., for plaintiff-appellee.

Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

In this case one of three persons jointly indicted for conspiring to violate the Munitions Control Act, 22 U.S.C. § 1934, 'and the rules and regulations duly promulgated thereunder . . .' was tried alone and found guilty by a jury. The indictment charged that the defendant and others conspired to export from the United States to Portugal certain technical data relating to a military armored amphibious vehicle without obtaining an export license or written approval from the State Department. It was also charged that the same persons, in furtherance of the alleged conspiracy, arranged for the transfer of a prototype vehicle from West Germany to Portugal by way of Spain. The purpose of the conspiracy as stated in the indictment was to make it possible to produce a military vehicle in Portugal similar to an American-made vehicle for which an export license had previously been cancelled.

Control over 'the export and import of arms, ammunition, and implements of war, including technical data relating thereto . . .' is lodged in the President by 22 U.S.C. § 1934. Pursuant to this statute a number of regulations have been issued which control the import and export of implements of war. 22 C.F.R. §§ 121.01 et seq. (1966) sets forth the regulations which apply to this case.

Prior to the time of the alleged conspiracy the defendant Van Hee had been an overseas salesman for a Michigan corporation which produces an armored amphibious vehicle known as the Commando. In 1965 defendant's employer contracted to sell 50 Commando vehicles to Portugal and Van Hee obtained the required export license. However, Portugal declined to certify that the vehicles would be used only in metropolitan Portugal and the State Department revoked the export license. It was testified that Van Hee was personally advised of the revocation by a State Department official.

Thereafter Van Hee and the indicted co-conspirator Larson, who was chief engineer of the corporation which designed and produced the Commando vehicle, solicited a group of individuals to go to Portugal to assist the Portuguese in manufacturing a Commando-like vehicle. The persons so recruited had all been involved in the development or manufactured of the Commando in Michigan. Before leaving for Portugal Larson and two of the other technicians, Erickson and Jordan, made copies of a large number of blueprints of parts of the Commando without permission of their Michigan employer. These were taken to Portugal, though no license for the export of technical data had been obtained.

The third indicted conspirator was Major Botto, a Portuguese national who was in charge of the effort to build a Commandotype vehicle in Portugal. Major Botto had been involved in the aborted agreement for the purchase of 50 American-made vehicles. When Erickson arrived in Portugal with the blueprints he took them to the office of Major Botto. Subsequently, when a prototype Commando arrived in Portugal from Spain Major Botto was at the dock observing its unloading.

The evidence showed that following their arrival in Portugal the American 'team' began construction of a plywood mock-up of a Commando-like vehicle. With the arrival of the prototype vehicle this project was abandoned in favor of the construction of an actual armored vehicle. The Portuguese-made vehicle was designated 'Chamite.' Though it was not an exact copy of the Commando, there was evidence that the essential features of the Chamite were the same. There were differences in the hulls of the two vehicles, but Larson testified on cross-examination that no more than ten percent of the component parts of the two were different. It was testified that the Americans were able to assist the Portuguese in constructing the Chamite by a process of 'reverse engineering.' This consisted of removing and studying parts from the prototype Commando which had been brought to Portugal from West Germany by way of Spain.

There was testimony that Van Hee was in Portugal on at least two occasions during the time the Americans whom he and Larson had recruited were working there. When some of the Americans became dissatisfied with the payments they were receiving from the Portuguese company which was working on the Chamite, it was testified that Van Hee met with Botto to settle the difficulty.

The United States Munitions List was set forth in 22 C.F.R. § 121.01. Armored amphibious military type vehicles were included in Category VII of the List. Included in Category XVIII of the List was '(t)echnical data relating to the articles described in this subchapter as arms, ammunition, and implements of war . . ..' The government introduced evidence that no license for the exportation of technical data relating to the Commando was issued to Van Hee, Larson or the Michigan manufacturer during the time that the conspiracy was charged. The prosecution was grounded on the theory that the blueprints of the vehicle and its parts and the technical knowledge of the Americans who worked on the Chamite in Portugal were 'technical data' within the meaning of the Act and regulations. The defendant contended that neither the blueprints nor the technical knowledge of the Americans who worked on the Chamite in Portugal was technical data. He further argued that the movement of the prototype Commando from West Germany to Spain and thence to Portugal did not violate any law relating to export of implements of war and that the alleged reverse engineering process was not a source of technical data.

Two issues are presented on appeal. The first incorporates the defendant's contentions in the district court and is stated in the brief as follows:

Since the act which appellant allegedly conspired to commit was not unlawful and having been accomplished was not accomplished in an unlawful manner, appellant may not be convicted of conspiracy to commit that act. (Appellant Brief, p. 29).

This statement is based on the supposition that nothing which was taken to Portugal and used there in manufacturing the Chamite vehicle was technical data within the regulations. It is argued that a conspiracy is by definition an agreement to commit an illegal act and that neither the particular activities of Van Hee and the other two indicted co-conspirators nor their ultimate goal of contributing to the manufacture of Chamite vehicles in Portugal was illegal.

In 22 U.S.C. § 1934 the President was given authority to control the export of arms, ammunition and implements of war 'in furtherance of world peace and the security and foreign policy of the United States, . . ..'

The requirement of an export license was contained in 22 C.F.R. § 123.02 of the 1966 regulations:

Section 123.02. Export license.

Articles on the U.S. Munitions List may not be exported from the United States until a license has been issued, or unless covered by an exemption provisions of this subchapter. Prior to the issuance of an export license, the Department of State may also require documentary information pertinent to the proposed transaction.

Violations were treated in 22 C.F.R. § 126.01:

Section 126.01. Violations in general.

It shall be unlawful for any person to export or attempt to export from the United States any of those articles designated by the U.S. Munitions List or to import or attempt to import such articles into the United States without first having obtained a license therefor, unless written approval was obtained from the Department of State or an exemption from this requirement is authorized by this subchapter.

It is not claimed by the government that the alleged conspiracy involved the actual export of Commando vehicles to Portugal after the earlier license had been revoked. However, Congress subjected 'technical data relating thereto' to the same control as the arms and implements themselves. This was doubtless done in recognition of the fact that world peace and American security and foreign policy could be threatened by the exportation of such data without the necessity of actually sending arms or implements abroad. The definition of 'technical data' appeared at 22 C.F.R. § 125.01 in the 1966 regulations:

Section 125.01. Technical data.

The term 'technical data' as used in Category XVIII of the U.S. Munitions List means any professional, scientific, or technical information relating to arms, ammunition, and implements of war which includes any model, design, photographic print or negative, plan, specification, or drawing, engineering performance characteristics data, or similar information which could enable the recipient to use, produce, operate, maintain, repair, or overhaul the article to which these data relate (see also § 125.20).

Technical data, by this definition, is nothing more than information of a particular kind. The language used in quite inclusive--'any professional, scientific, or technical information relating to arms, ammunition, and implements of war . . ..' Though several common forms of recording and preserving this type information, such as models, prints and specifications are listed, the definition again employs extremely broad language by including '. . . similar information which could enable the recipient to use, produce, operate, maintain, repair, or overhaul the article to which these data relate.'

Van Hee concedes that the Commando vehicle was included within the designation of arms, ammunition, and implements of war in Category VII of the Munitions List. However, he argues that the...