U.S. v. Spawr Optical Research, Inc.

• Citation: 864 F.2d 1467
• Decision Date: 29 December 1988
• Docket Number: No. 87-6272,87-6272
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. SPAWR OPTICAL RESEARCH, INC., Walter J. Spawr, and Frances Spawr, Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1467

864 F.2d 1467

UNITED STATES of America, Plaintiff-Appellee, v. SPAWR OPTICAL RESEARCH, INC., Walter J. Spawr, and Frances

Spawr, Defendants- Appellants.

No. 87-6272.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1988.

Decided Dec. 29, 1988.

Scott C. Witney, Washington, D.C., for defendants-appellants.

William Fahey, Asst. U.S. Atty., Los Angeles, Cal., Ronald Roos, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, WIGGINS and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

BACKGROUND

In the early 1970's, Walter Spawr, an optics expert, invented a superior process for polishing laser mirrors. By 1975, Walter and his wife Frances, through their corporation, Spawr Optical Research, Inc. (collectively "the Spawrs"), were marketing their laser mirrors nationally and exploring international markets.

In January 1976, the Spawrs accepted an order from a purchasing agency of the Soviet Government. They began filling the order in June of that year by delivering some of the mirrors to their agent in this country, who then departed for West Germany. The Spawrs shipped the balance of the order to the agent in West Germany in July. The agent then forwarded the entire order to Moscow. The Spawrs never attempted to obtain an export license for this shipment of mirrors.

In April 1976, the Spawrs received a second Soviet order. Walter decided to seek an export license for a portion of this second order. He filed a license application with the Commerce Department in May, identifying his agent in West Germany as the end-user of the mirrors. On October 7, 1976, the Secretary of Commerce ("Secretary") denied the application, having determined that the Spawrs' mirrors were included on the Commodity Control List ("CCL") ¹, and that they had "significant strategic applications" posing a potential threat to national security.

In November, because of their inability to obtain an export license, the Spawrs canceled the second Soviet order. However, in February 1977, they shipped mirrors to a freight forwarder in Switzerland. Their agent then relabeled the boxes containing In 1980, the Spawrs were indicted for misrepresenting shipment values in declarations submitted to the United States Customs Service, a violation of 18 U.S.C. Sec. 1001 (Counts 1-6); conspiracy to export laser mirrors without a required license, a violation of 18 U.S.C. Sec. 371 (Count 10); and exporting laser mirrors without a required license, with knowledge that they would be transshipped to the Soviet Union, a violation of export administration regulations (Counts 7-9, 11-14). ² A fifteenth count was dismissed on the court's motion.

the mirrors and forwarded the shipment to Moscow.

After a jury trial, the corporation was convicted on all charges (Counts 1-14), Walter was convicted on the conspiracy and 1977 exporting charges (Counts 10-14), and Frances was convicted on the misrepresentation, conspiracy, and 1977 exporting charges (Counts 1-6, 10-14). ³ The Spawrs appealed their convictions on four grounds: that the export regulations relied on by the government were defunct; that government misconduct prejudiced their defense; that the trial court erred by admitting co-conspirator statements lacking a proper evidentiary foundation; and that the evidence was insufficient to support their convictions. This court affirmed their convictions in United States v. Spawr Optical Research, Inc., 685 F.2d 1076 (9th Cir.1982), cert. denied, 461 U.S. 905, 103 S.Ct. 1875, 76 L.Ed.2d 807 (1983).

In 1985, the Spawrs collaterally attacked their convictions by filing a petition under 28 U.S.C. Sec. 2255 requesting the district court to set aside their sentences on ten new grounds not raised at trial or on appeal. The district court denied the petition in its unpublished order filed October 9, 1986, because the Spawrs had not demonstrated that they had cause for failing to raise their issues at trial or on appeal, or that they had been prejudiced by the alleged trial defects.

The Spawrs then moved for reconsideration of the district court's order denying the Sec. 2255 petition. They moved the district court to reconsider two of the grounds relied on in the petition: that they had ineffective assistance of counsel, and that the prosecution withheld exonerating evidence in violation of Brady. The Spawrs also filed an additional motion alleging another instance of prosecutorial misconduct--that the prosecution intentionally provided the court with the wrong CCL. The district court denied the Spawrs' motion in its unpublished order, filed July 21, 1987, for essentially the same reasons as its earlier denial. ⁴

On appeal, the Spawrs renew the three contentions of trial error raised in their

motion to reconsider--Brady violations, the prosecution's knowing production of misleading evidence, and ineffective assistance of counsel. The government addresses the Spawrs' arguments and further contends that this appeal should be dismissed for lack of jurisdiction, for undue delay in filing the Sec. 2255 motion, and for failure to assert claims at trial or on direct appeal. The district court's denial of the Spawrs' Sec. 2255 motion is reviewed de novo. See United States v. Quan, 789 F.2d 711, 713 (9th Cir.1986).

JURISDICTION

The government contends that the district court lacked jurisdiction over the Spawrs' Sec. 2255 motion because the Spawrs are no longer in custody. We disagree.

The district court's jurisdiction over this motion is measured at the time of filing. So long as the Spawrs were in custody at that time, jurisdiction is present. See 16 Federal Procedure Sec. 41:15 at 328-29 (1983). The district court has stated that the Spawrs were serving five year probationary terms when they filed their Sec. 2255 motion. A probationary term is sufficient custody to confer jurisdiction. See Wright v. United States, 732 F.2d 1048, 1050 n. 1 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985).

Apparently the government, believing that the Spawrs were released from probation after filing, is actually making a mootness argument. The district court rejected this contention, relying primarily on Supreme Court authority, Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and authority from this court, United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Courtney v. United States, 486 F.2d 1108 (9th Cir.1973). We agree with the district court that this motion is not moot.

In Carafas, the Court held that, so long as the adverse consequences of a criminal conviction remain, a petition for a writ of habeas corpus is not moot, even though the petitioner's custody has expired since filing. 391 U.S. at 236-38, 88 S.Ct. at 1558-60. Shortly thereafter, in Sibron, the Court reached a similar result. 392 U.S. at 50-58, 88 S.Ct. at 1896-1900. In Lane, the Court found the petition at issue to be moot. However, it did so on the ground that the petitioner, who was no longer in custody, had challenged only the sentence. The Court, citing Carafas and Sibron, emphasized that the petition would not have been moot if the petitioner had challenged the conviction itself. ⁵ 455 U.S. at 630-33, 102 S.Ct. at 1326-28.

The Spawrs have raised a number of challenges to their convictions (e.g. ineffective assistance of counsel). Thus, the distinction identified in Lane is not an obstacle to the remedy sought in this case. Moreover, it is evident that collateral consequences of the Spawrs' convictions still remain. For example, as the district court and the Spawrs have noted, the Spawrs are unable to receive government contracts until 1991. It may also be true that direct consequences of the convictions remain--the Spawrs claim that their corporation has not completed payment of its fine, and that their probation terms have not expired (the government has stated otherwise). As a result, this Sec. 2255 motion is still viable under Carafas and Sibron.

As a final matter, the government requests this court to dismiss the motion because of the Spawrs' delay in filing. Rule 9 of the Rules Governing Sec. 2255 Proceedings provides:

(a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its However, it should be emphasized that the government must first make a showing of prejudice. See 16 Federal Procedure Sec. 41:507 at 594 (1983). Beyond its request for dismissal due to delay, the government makes no showing or prejudice. Therefore, its request is denied.

ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred.

PROCEDURAL DEFAULT

The government also contends that the Spawrs' Sec. 2255 motion should be dismissed because the issues presented were not raised at trial or on direct appeal. It maintains that under United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982), the Spawrs must show "cause" to excuse their procedural default, and "actual prejudice" from the alleged trial errors. The government claims that the Spawrs have done neither.

In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Supreme Court capsulated the law concerning the availability of habeas relief in the face of such procedural defaults. The Court first stated the general rule that "the writ of habeas corpus will not be allowed to do service for an appeal." Id. at 178, 67 S.Ct. at 1590. The Court then acknowledged...