U.S. v. Pulungan, 07-cr-144-bbc.
| Decision Date | 02 July 2008 |
| Docket Number | No. 07-cr-144-bbc.,07-cr-144-bbc. |
| Citation | 561 F.Supp.2d 1019 |
| Parties | UNITED STATES of America, Plaintiff, v. Doli Syarief PULUNGAN, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Meredith P. Duchemin, United States Attorney's Office, Madison, WI, for Plaintiff.
T. Christopher Kelly, Kelly & Habermehl, S.C., Madison, WI, for Defendant.
Defendant Doli Syarief Pulungan is a citizen of Indonesia who wanted to purchase a quantity of Leupold Mark 4 CQ/T riflescopes. The manufacturer of the scopes stated on its website that the scopes could not be exported, so defendant came to the United States to try to arrange a domestic purchase and clandestine shipment to Indonesia. His plans were foiled when the first person he approached refused to help him and the second person turned out to be a local law enforcement agent who reported defendant to the FBI. Shortly afterwards, defendant was arrested by FBI agents; in the course of questioning, he made admissions and contradictory statements. He was charged in a two-count indictment with violating the Arms Export Control Act, 22 U.S.C. § 2778, by conspiring to export a "defense article," specifically, the Leupold Mark 4 CQ/T riflescope, and with violating 18 U.S.C. § 1001 by making false statements to law enforcement officers. The jury convicted him on the first charge and acquitted him on the second. Defendant has challenged his conviction in motions for judgment of acquittal or in the alternative for a new trial.
In support of his motion for judgment of acquittal, defendant contends that the evidence was insufficient to permit a jury to find that the government had proved that he had reached an agreement with any other person to violate the criminal laws of the United States, that he had the specific intent to commit the charged offense or that the riflescope charged in the indictment was a defense article. I conclude that defendant is wrong; the evidence was sufficient to sustain his conviction.
In support of the motion for a new trial, defendant contends that the court erred in a number of respects. He starts with four allegations of error, all having to do with his assertions that the government should have had to prove that the riflescopes he conspired to export were manufactured to military specifications and he should have been allowed to cross-examine the representative of the Department of State about the basis for the department's determination that the riflescope was manufactured to military specifications. He asserts three additional errors having to do with his belief that the jury should have been instructed that it had to find that he knew not only that he was violating the law against exporting the Leupold riflescopes but, specifically, that he was violating his legal obligation to obtain an export license for the shipment of the scopes. I conclude that no new trial is necessary.
The applicable statute, 22 U.S.C. § 2778, authorizes the President to control the import and export of "defense articles." The President or his designee is authorized to designate those items considered "defense articles"; the items so designated constitute the United States Munitions List. § 2778(a)(1). Unless otherwise specified by regulations promulgated under subsection (a)(1), no defense articles may be exported without a license. § 2778(a)(1)(B)(2). The designation of an item as a defense article by the President or his designee "shall not be subject to judicial review." § 2778(h).
In a pretrial motion, defendant challenged the § 2778 charge against him as unconstitutionally vague. His theory was that a layperson could not tell from the statute whether it applied only to scopes made for the military or whether it covered scopes made for the general public that happened to meet the specifications of military scopes. As he noted, the Leupold Mark 4 CQ/T scope is offered in standard and certified versions; he could not tell from the indictment whether he was charged with conspiring to purchase the certified scopes rather than the standard ones. Adding to the ambiguity, he pointed out that the United States Munitions List does not set out specific weapons but only categories of weapons. How, he asked, could a person know that a particular item he wanted to export was one included within a particular category defense articles?
This vagueness challenge was the subject of Magistrate Judge Stephen Crocker's April 23, 2008 report recommending denial of defendant's motions to dismiss both counts of the indictment and his motion for a bill of particulars. The magistrate judge considered the possibility that a defendant might purchase and export a riflescope (or other piece of hardware) without knowing that it was manufactured to military specifications and thus violate the law unwittingly. He dispensed with this concern by noting that the law requires scienter for conviction; if at defendant's trial, the government could not prove that defendant knew he could not export the particular riflescope, it would be unable to establish its case against defendant. In other words, the scienter requirement foreclosed defendant's argument that the Arms Export Control Act was unconstitutionally vague. Any vagueness in the Act works against the government, which can establish a violation of the Act only if it can prove that a defendant acted in contravention of a known legal duty.
The magistrate judge was more sympathetic to defendant's argument that he was entitled to know how the Department of State's Directorate of Defense Trade Controls makes up its list governing the export of "defense articles." Although he denied defendant's request for disclosure of the military specifications that make the Leupold riflescopes defense articles and denied defendant's motion for a bill of particulars, he directed the government to provide defendant the foundation for the testimony of the State Department's witness, specifically information about how the riflescope got on the list and who made the decision to put it there.
This ruling did not satisfy defendant. He objected to the magistrate judge's ruling, renewing his request for information about the particular specifications of the Leupold scope and the corresponding military specifications so that he could decide whether he could challenge the factual conclusions drawn by the government in designating the scope as a defense article. In denying defendant's second request for this information (and adopting the magistrate judge's recommendation to deny defendant's motions to dismiss), I concluded that the only relevant question was whether the scope was on the list of defense articles that could not be exported without a license. In my view, this ruling was required by the provisions of subsection (h) of § 2778, barring the courts from reviewing the designation of any particular item as a defense article. For this reason, at the final pretrial hearing, I granted the government's request to preclude defendant from asking any questions about the propriety of the government's classification of the Leupold scope as a defense article or making any comments on that subject.
OPINIONIn moving for judgment of acquittal, defendant challenges the sufficiency of the evidence introduced by the government to show he was part of a conspiracy, that he had the specific intent to commit the crime and that the Leupold the riflescope is actually a defense article. His challenge fails in all respects.
The government proceeded on the theory that defendant had conspired with one Yusef to export Leupold riflescopes out of the country. Yusef never surfaced at trial, but the government introduced evidence that defendant had admitted to the FBI that he was trying to buy the riflescopes for a person named Yusef, that Yusef lived in Indonesia and that he and Yusef had researched the scopes and printed materials off the internet about the Leupold riflescopes (including the information that the scopes could not be exported). Corroborating defendant's admission, the government introduced evidence in the form of text messages among defendant, Yusef and a third person named Johann in which defendant described to them the steps he was taking to procure the riflescopes. This evidence was sufficient to allow the jury to find the existence of a conspiracy.
Defendant argues that the government failed to show that he and Yusef reached agreement about the price or the final destination and use of the scopes once they reached Indonesia. He is right, but neither of these missing bits of information is necessary to prove that the two men had agreed to work together to buy and export the scopes.
The Arms Export Control Act makes it a crime to willfully...
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U.S. v. Pulungan
...of an item's classification. The judge confirmed this ruling after trial when denying Pulungan's motion for acquittal. 561 F.Supp.2d 1019 (W.D.Wis.2008). Pulungan disputes this understanding of § 2778(h) and adds that, if the prosecutor is right, then the defendant's sixth amendment right t......