United States v. Henry

• Decision Date: 26 April 2018
• Docket Number: August Term 2017,No. 15-3814-cr,15-3814-cr
• Citation: 888 F.3d 589
• Parties: UNITED STATES of America, Appellee, v. Mark HENRY, aka Weida Zheng, aka Scott Russel, aka Bob Wilson, aka Joanna Zhong Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

888 F.3d 589

UNITED STATES of America, Appellee,

v.Mark HENRY, aka Weida Zheng, aka Scott Russel, aka Bob Wilson, aka Joanna Zhong Defendant–Appellant.^*

No. 15-3814-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: September 13, 2017

Decided: April 26, 2018

Aimee Hector, Special Assistant United States Attorney, (Michael Lockard, Special Assistant United States Attorney, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.

Marc Fernich, Law Office of Marc Fernich, New York, NY, for Defendant–Appellant.

Before: Jacobs, Cabranes, and Wesley, Circuit Judges.

José A. Cabranes, Circuit Judge:

Defendant–Appellant Mark Henry ("defendant" or "Henry") appeals the November 25, 2015 judgment of the United States District Court for the Eastern District of New York (Roslynn R. Mauskopf, Judge ) convicting him after jury trial of one count of conspiracy to violate and one count of violating, attempting to violate, and aiding and abetting the violation of the Arms Export Control Act ("AECA"), 22 U.S.C. §§ 2778(b)(2), (c).

Five questions are presented on appeal: (1) whether the AECA unconstitutionally delegates legislative authority to the executive; (2) whether the District Court erred in instructing the jury on the conduct required to find "willfulness"; (3) whether the District Court erred in instructing the jury on "conscious avoidance"; (4) whether the District Court violated Henry's rights under the Sixth Amendment and the Court Interpreters Act ("CIA"), 28 U.S.C. §§ 1827 – 28, to waive the assistance of an interpreter; and (5) whether the District Court abused its discretion in requiring that Henry be provided the assistance of a court-appointed Mandarin interpreter throughout trial.

We answer all five questions in the negative and therefore AFFIRM the District Court's judgment of conviction.

I. BACKGROUND

Because Henry is appealing a judgment of conviction entered after trial, we view the facts from the trial record in the light most favorable to the government.¹

A. Henry's Arms Export Business

Henry ran an arms export business—Fortune Tell, Ltd. ("Fortune Tell")—out of his home in Flushing, Queens. At least four times between 2009 and 2012, Henry bought "ablative materials"—a military technology used in rockets and missiles—from an American distributor, Krayden, Inc. ("Krayden"), and exported them to a customer in Taiwan. The customer was buying the materials on behalf of the Taiwanese military.

The export of ablative materials requires a license issued by the Directorate of Defense Trade Controls ("DDTC") of the United States Department of State. This requirement is part of a comprehensive regulatory framework established by the AECA, which in turn authorizes the President of the United States to implement rules regarding the export and control of "defense articles."² The ablative materials Henry exported are considered "defense articles" under the AECA.³ It is a crime to violate the AECA or any of the rules and regulations promulgated thereunder.⁴

The jury found that Henry exported or attempted to export ablative materials despite not having the required DDTC export license. According to the evidence presented at trial, Krayden prominently displayed information regarding the need for an export license in its communications with Henry. Henry and his customer in Taiwan also repeatedly discussed the export license requirement through email correspondence. Instead of acquiring the license, Henry sought to conceal from Krayden the fact that he intended to export the ablative materials.

Henry tried to conceal his conduct in different ways. In one instance, when purchasing the ablative materials, he provided Krayden the address of a freight forwarder by the name of AE Eagle, which would in turn ship the materials to Fortune Tell. Instead of identifying the address as belonging to AE Eagle, however, Henry claimed that the address belonged to a fictitious company—"UDMC Corporation"—in an attempt to disguise that the actual recipient was, in fact, a freight forwarder that would export the materials outside of the United States.

He also created false documentation in an effort to conceal from United States customs authorities the identity of the materials he was exporting, repeatedly referring to the contents of the shipments by names that obscured the fact that the packages contained ablative materials.

Henry sometimes used his true name when placing these orders. At other times, he placed orders under "Scott Russel," "Weida Zheng," or "DaHua Electronics Corp." Each of these orders was intended for Fortune Tell.

In addition to his dealings with Krayden, Henry ordered two microwave amplifiers from Amplifier Research Corp. ("Amplifier"), a United States manufacturer, in 2012. Because such devices serve both military and commercial purposes, exporting them overseas requires an additional license from the U.S. Department of Commerce. Henry did not obtain the required licenses before attempting to ship the two amplifiers to mainland China. He also repeatedly provided the wrong end user address to Amplifier to obtain a lower price available only for end users who reside in the United States. In its correspondence with Henry, Amplifier made clear that the materials sold were subject to the AECA.

Although it did send the requested products to Henry, Amplifier alerted law enforcement when it learned of Henry's efforts to disguise the end user. Henry was arrested after he had received the materials but before he had shipped them to China.

He was indicted on one count of conspiracy to violate the AECA, 22 U.S.C. §§ 2778(b)(2) & (c), Title 18, United States Code, Section 371 ; one count of violating, attempting to violate, and aiding and abetting the violation of the AECA, Title 22, United States Code, §§ 2278(b)(2) and (c) and Title 18, United States Code, Section 2 ; and a third count of attempting to violate the International Emergency Economic Powers Act ("IEEPA"), Title 50, United States Code, Section 1705.

B. Trial Testimony

At trial, Henry testified he did not know that he was required to obtain a license for any of the materials he exported or sought to export. Some of his testimony was contradictory. While he admitted to being aware generally of export restrictions on certain materials, he denied ever having seen the export license warnings displayed repeatedly in correspondence with Krayden and Amplifier. He also asserted that his father had placed some of the orders with Krayden and had otherwise handled all the email correspondence with the company's representatives, so that Henry himself would not have been aware of any notice of export restrictions contained in that correspondence.

Henry nevertheless admitted to reading correspondence in which the manufacturer or distributor highlighted the need for an export license, and admitted that he at times submitted incorrect end user information to obtain a lower price for certain materials. He testified that his misrepresentations to Krayden, Amplifier and United States customs authorities were for purposes other than to conceal his effort to export defense articles in violation of the AECA.

Henry's father, Xinhao Zheng, also testified. He confirmed his son's representations and stated that he would often place orders and correspond with manufacturers and distributors using his son's name and email address.

C. Use of an Interpreter

On the morning of the first day of trial, Henry, who is originally from China, requested to proceed without the use of a Mandarin interpreter. Henry testified that although he spoke English, he principally wrote and spoke in Mandarin. He admitted that he always used Google Translate when writing emails to manufacturers or distributors, and that he also used Google Translate while placing orders. Henry had used an interpreter in all pretrial proceedings but now wished to proceed without one because he believed the use of an interpreter would diminish his credibility and prejudice the jury against him.

To assess the need for an interpreter, the District Court inquired about Henry's facility with the English language. After extensive discussion with Henry's lawyer and Henry himself about his ability to speak and understand English, the District Court concluded that, because of the technical nature of some of the evidence likely to be presented, Henry would be provided the assistance of a court-appointed Mandarin interpreter throughout the trial. As a compromise with Henry, the District Court made one exception to this rule. It permitted Henry to testify in English with the assistance, as necessary, of a standby interpreter, an option of which he took advantage during his testimony.

D. Conviction and Sentence

The jury returned a verdict of guilty as to the two AECA counts on July 2, 2014, and it acquitted Henry on the IEEPA count.⁵ Henry filed a motion for a new trial on August 1, 2014.⁶ It was denied on February 27, 2015.⁷ Judge Mauskopf sentenced Henry principally to a term of imprisonment of 78 months on November 24, 2015.⁸

II. DISCUSSION

A. Constitutionality of the Arms Export Control Act

Henry first challenges the sufficiency of the evidence presented at trial, but this argument is more accurately understood as a challenge to the constitutionality of the AECA.⁹ In his view, the provisions of the AECA authorizing the President to designate certain goods as "defense articles" are an unconstitutional delegation both because of their vagueness and because the AECA's statutory and regulatory scheme imposes criminal penalties on violators.

We hold, in agreement with the other circuits that have considered the issue,¹⁰ that the AECA does not unconstitutionally delegate legislative authority to the executive.

1.

Congress is constitutionally prohibited from delegating its legislative authority to another branch of Government.¹¹ However, courts have recognized certain exceptions to this...