U.S. v. Mandel, 88-1418
| Decision Date | 14 September 1990 |
| Docket Number | No. 88-1418,88-1418 |
| Citation | 914 F.2d 1215 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Arnold I. MANDEL; Rona K. Mandel, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellant.
Daniel F. Cook, Topel & Goodman, San Francisco, Cal., Dale A. Drozd, Blackmon and Drozd, Sacramento, Cal., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
This appeal raises the issue of whether a criminal defendant charged with exporting items on the Commodity Control List in violation of the Export Administration Act of 1979 is entitled to discovery of Department of Commerce records relied on by the Secretary in promulgating commodity control categories within which the exported items are listed. The district court held in a published opinion, United States v. Mandel, 696 F.Supp. 505 (E.D.Cal.1988), that discovery was appropriate because defendants in a criminal case are entitled to challenge the Secretary's decision to place specific items on the list, and that limited, "basis in fact" review of the Secretary's decision does not implicate considerations giving rise to a political question. We disagree that the Secretary's decision can be subjected to judicial review, or that the basis for his decision is material to the defense of an EAA violation, and reverse.
Arnold and Rona Mandel were indicted on July 17, 1987, and charged with one count of conspiracy and ten counts of illegally exporting controlled commodities without a license in violation of the Export Administration Act of 1979, 18 U.S.C. Sec. 371, 50 U.S.C.App. Sec. 2410(a). 1 Arnold Mandel was also charged with four counts, and Rona Mandel of two counts, of falsifying shipper's export declarations in violation of 18 U.S.C. Sec. 1001.
The indictment alleges that a Hong Kong company called Fortune Enterprise Company placed orders for sophisticated computers, oscilloscopes, and electronic test equipment with the defendants beginning in June of 1982. The defendants responded by ordering the equipment from American manufacturers and making arrangements to ship the equipment to Hong Kong. Some of this equipment was listed in Categories 1529A, 1565A, and 1584A of the CCL. 15 C.F.R. Sec. 399.1, Supp. 1. The defendants could not export this equipment to Hong Kong without a validated export license from the Department of Commerce. Id.; 50 U.S.C.App. Sec. 2410(a). An application for such a license sent by the defendants to the Commerce Department on July 9, 1983 was returned, after the Department assigned it an application number, as inadequate. 2 The defendants did not resubmit the application. Instead, between July 30, 1982 and August 17, 1983, they shipped more than $933,000.00 of equipment to the Hong Kong company, without export licenses. The indictment also charges that the Mandels falsified export documents, in order to avoid detection, by stating on them that they had obtained export licenses, using the application number assigned by the Commerce Department as a substitute for a license number.
The EAA provides the executive branch with power to impose export controls for reasons of national security, foreign policy, or domestic short supply. 50 U.S.C.App. Secs. 2402(2), (10) and 2404-06. These controls are implemented through licensing requirements for commodities which meet the criteria set forth in the Act. The power to require export licenses for such commodities is vested in the Secretary of Commerce. 50 U.S.C.App. Sec. 2403(a). It is the responsibility of the Secretary to establish and maintain a list of commodities, the Commodity Control List ("CCL"), for which export licenses are required. 50 U.S.C.App. Sec. 2403(b), 2404(c). The CCL describes the categories of controlled commodities, the countries for which export licenses are required, and the type of license needed. 15 C.F.R. Sec. 399.1, Supp. 1 (1982).
The Act contains an elaborate set of criteria which governs the Secretary's imposition of export controls. 50 U.S.C.App. Sec. 2403. Section 2403 directs the Secretary to make a finding regarding the foreign availability of items before he may restrict their exportation. The Secretary must consider whether the commodities to be controlled are available without restriction from sources outside the United States, whether the export of those commodities is restricted pursuant to a multilateral agreement to which the United States is a party, and whether other nations possess capabilities with respect to such commodities comparable to those of the United States. 50 U.S.C.App. Secs. 2403(c), 2404(d)-(f).
The items the defendants are charged with exporting were controlled for national security reasons. 3 See 15 C.F.R. Sec. 399.1, Supp. 1, Categories 1529A, 1563A, 1584A. The Secretary may impose national security controls on a commodity "only to the extent ... necessary (A) to restrict the export of goods and technology which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States." 50 U.S.C.App. Secs. 2402(2)(A), 2404(a)(1); see also 50 U.S.C.App. Sec. 2403(d).
Section 2404 provides for periodic review of the commodities subject to national security controls to insure that they continue to satisfy the conditions for imposition of export controls. The Secretary must issue regulations providing for review, including a foreign availability determination, of items subject to national security controls at least every three years in the case of controls maintained cooperatively with other countries and annually in the case of all other controls. 50 U.S.C.App. Sec. 2404(c)(3). The Secretary must review the foreign availability of items which require a validated export license on a continuing basis. See 50 U.S.C.App. Sec. 2404(f)(1). 4
After the indictment was returned, the Mandels moved to discover all documents in the possession of a number of investigative and intelligence agencies relating to the factors set forth in sections 2402, 2403, and 2404, for the purpose of determining "whether the government followed the legislative mandate ... in placing the items listed in the indictment" on the CCL. The district court entered an order denying the motion insofar as it called for the production of information in the possession of any government agency except the Department of Commerce. However the court required the government to produce the administrative record pertaining to the Secretary's decision to place on the CCL those items that the defendants were charged with exporting. Mandel, 696 F.Supp. at 518.
Following the government's motion for reconsideration, the court changed the scope of its discovery order to require the production of:
all records of the Department of Commerce relied upon by the Secretary of Commerce in promulgating commodity control categories 1584A, 1565A, and 1529A as they existed during the years 1982 and 1983.
The government notified the court that it would respectfully decline to comply with the order, which it believed unjustified. The court then entered an order "exclud[ing] from the trial of this case any and all evidence showing that the commodities allegedly exported by the defendants were in fact on the Commodity Control List."
The government contends that the discovery request should have been denied because it was not material to the defense, a criminal defendant cannot challenge the Secretary's decision to place a commodity on the CCL, and the Secretary's decision to require export controls is an unreviewable political question. The Mandels argue that the district court did not abuse its discretion because they showed that a criminal defendant has a due process right to challenge the Secretary's administrative decision, and that that decision is not an unreviewable political question.
The district court had jurisdiction under 18 U.S.C. Secs. 371, 1001, 3231 and 50 U.S.C.App. 2410(a). Our jurisdiction rests upon 18 U.S.C. Sec. 3731, which permits the Government to appeal from a decision or order of a district court "suppressing or excluding evidence" in a criminal proceeding.
The district court's discovery rulings under Fed.R.Crim.P. 16 are reviewed for an abuse of discretion, but the court's legal construction of Rule 16 is reviewed de novo. United States v. Iglesias, 881 F.2d 1519, 1523 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1154, 107 L.Ed.2d 1057 (1990). The district court's construction of the Export Administration Act is reviewed de novo. See United States v. Arrellano, 812 F.2d 1209, 1211 (9th Cir.1987), modified, 835 F.2d 235 (9th Cir.1987).
Fed.R.Crim.P. 16(a)(1)(C) provides that a criminal defendant is entitled to discovery of materials "which are within the possession, custody, or control of the government, and which are material to the preparation of the defendant's defense." Rule 16 permits discovery that is "relevant to the development of a possible defense." United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984). To obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality. United States v. Little, 753 F.2d 1420, 1445 (9th Cir.1984); United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir.1984). Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense. See Little, 753 F.2d at 1445; Cadet, 727 F.2d at 1466-68.
The Mandels made no threshold factual showing of materiality. 5 The district court was unpersuaded by the government's argument that an insufficient...
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