U.S. v. Sun
| Citation | 278 F.3d 302 |
| Decision Date | 10 January 2002 |
| Docket Number | No. 01-4026.,01-4026. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bing SUN; Patte Sun; All Ports, Incorporated, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Anthony Francis Troy, Troutman, Sanders, Mays & Valentine, L.L.P., Richmond, VA, for Appellants. Alan Mark Salsbury, Assistant United States Attorney, Norfolk, VA, for Appellee. ON BRIEF: James C. Roberts, John S. West, Troutman, Sanders, Mays & Valentine, L.L.P., Richmond, VA, for Appellants Bing Sun and All Ports; Lawrence G. Cohen, David W. Lannetti, Vandeventer Black, L.L.P., Norfolk, VA, for Appellant Patte Sun. Kenneth E. Melson, United States Attorney, Norfolk, VA, for Appellee.
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge MICHAEL and Judge DIANA GRIBBON MOTZ joined.
Following a jury trial, Bing Sun and All Ports, Incorporated (All Ports) were convicted of conspiracy to export defense articles on the United States Munitions List (Munitions List) without a license and conspiracy to commit money laundering in violation of 18 U.S.C. § 371, 18 U.S.C. § 1956(a)(2)(A), and 22 U.S.C. § 2778. The jury also found Bing Sun, All Ports, and Patte Sun, Bing Sun's wife, guilty of two counts of attempting to export defense articles on the Munitions List without a license in violation of 22 U.S.C. § 2778. Bing Sun was sentenced to sixty months' imprisonment; Patte Sun to forty-one months' imprisonment; and All Ports to two years' probation and a $100,000 fine. The district court entered each defendant's judgment on December 28, 2000. Each defendant filed a timely appeal, and we now affirm.
The Arms Export Control Act (AECA), id., authorizes the President to control, inter alia, the export and import of defense articles. Id. § 2778(a)(1). The Department of State, exercising this authority for the President, has promulgated the International Traffic in Arms Regulations (ITAR), 22 C.F.R. §§ 120.1-130.17. These regulations include the Munitions List, which consists of categories of military items that cannot be exported without a license issued by the Department of State's Office of Defense Trade Controls. 22 C.F.R. §§ 121.1, 123.1, 127.1. Because the United States maintains an arms embargo with the People's Republic of China, no license to ship items on the Munitions List to the People's Republic of China can be acquired. A willful violation of the AECA or its implementing regulations subjects an offender to criminal sanctions. 22 U.S.C. § 2778(c).
When a United States military unit determines that a piece of military property, including an item on the Munitions List, is "obsolete," in a condition that is "no longer repairable," or in "excess," (J.A. 273), the military unit turns the property over to the Defense Reutilization and Marketing Service (DRMS), an agency operated by the Department of Defense. Once the military property is turned over to the DRMS, the DRMS offers it to other military units. If no other military unit is interested, the military property is offered to federal agencies, state agencies, and non-profit organizations. If there are no federal agencies, state agencies, or non-profit organizations interested in the military property, the military property is offered for sale, sometimes labeled as "scrap," to the general public through a national sales program. (J.A. 273). Often, multiple pieces of military property are offered for sale in "lots." (J.A. 276).
Through its national sales program, the DRMS issues Invitations for Bid to prospective purchasers. An Invitation for Bid contains a description of the items for sale, the terms and conditions of sale, a bid sheet, and an End Use Certificate.1 The Invitation for Bid also indicates whether a particular lot contains items on the Munitions List. Importantly, even if a particular lot designates the military property as "scrap," the Invitation for Bid will indicate whether the lot contains items on the Munitions List.
Prospective purchasers of military property are also furnished with a Sale By Reference pamphlet, which states that items on the Munitions List which do not require demilitarization may be sold for "military or other use," (J.A. 1846), to those foreign countries to which the United States Department of State will issue an export license under the ITAR.2 The Sale By Reference pamphlet also states that the use, disposition, export, and reexport of military property is subject to all applicable United States laws and regulations, the AECA, and the ITAR.
Bing and Patte Sun were the primary owners of All Ports, a company headquartered in Fontana, California. The primary business of All Ports was the sale of United States government military property to the People's Republic of China. All Ports maintained warehouse facilities in Fontana, Norfolk, Virginia, and San Antonio, Texas.
The duties of operating All Ports were split between Bing and Patte Sun. Bing Sun inspected military property at various military facilities around the country. He prepared bid packages for submission to the DRMS. In addition, Bing Sun set up and oversaw the operation of All Ports' export facilities. Patte Sun, who was described as a knowledgeable businesswoman, administered the contracts that All Ports had with the DRMS, each one of which, according to the written Invitations for Bid, contained Munitions List items. All contract documents were delivered to All Ports' office in Fontana, where she worked. Patte Sun prepared the checks in payment of the contracts awarded to All Ports; assisted in the management of All Ports' warehouse in Fontana; and made shipping arrangements with overseas freight forwarders for the export of the military property.3
Between 1994 and 1999, All Ports shipped over 1,000 containers of military property to the People's Republic of China. During this period, approximately sixty-four End Use Certificates were submitted to the DRMS on behalf of All Ports as part of bid documents for lots of military property. Patte Sun completed and signed two of those End Use Certificates and the rest were completed and signed by Bing Sun. With one exception, these End Use Certificates indicated that the military property would be distributed in the "USA and other countries" and that the customers were "unknown at the present time."4 (J.A. 1864). However, beginning in 1997, these lots of military property were shipped by All Ports to but one customer which had become All Ports' sole purchaser in the People's Republic of China.5
On May 7, 1999, without a license, the Suns and All Ports attempted to export, from Norfolk to the People's Republic of China, four shipping containers of military "scrap" property purchased from the DRMS.6 These containers were presented for export at the Norfolk International Terminal, where they were detained and subsequently seized by the United States Customs Service. The material in three of these containers included items designated by the State Department as defense articles on the Munitions List, including fourteen twenty-millimeter tail-gun pods for the MK-4, nine twenty-millimeter nose pods for the MK-4, six underwater mines for the MK-60, two missile fins for air launched guided missiles, eight fin assemblies for air launched guided missiles, and thirteen twenty-millimeter gun pod center cylinders for the MK-4.
On May 13, 1999, without a license, the Suns and All Ports attempted to export, from Norfolk to the People's Republic of China, two shipping containers of military "scrap" property purchased from the DRMS. These containers were presented for export at the Norfolk International Terminal, where they were detained and subsequently seized by the United States Customs Service. Items in these containers included wing assemblies for guided bombs, fin assemblies for air launched missiles, wing assemblies for air launched missiles, duct assemblies for the B-1 bomber, and missile fins for air launched guided missiles.
On February 24, 2000, Bing Sun, Patte Sun, and All Ports were charged in a forty-seven count indictment. Count One charged Bing Sun, Patte Sun, and All Ports with conspiracy to export defense articles on the Munitions List without a license and conspiracy to commit money laundering in violation of 18 U.S.C. § 371, 18 U.S.C. § 1956(a)(2)(A), and 22 U.S.C. § 2778. Counts Two through Twenty-Three charged the defendants with exportation of defense articles on the Munitions List without a license. 22 U.S.C. § 2778. Counts Twenty-Four and Twenty-Five charged the defendants with attempting to export defense articles on the Munitions List without a license.7 Id. Counts Twenty-Six through Forty-Seven charged the defendants with money laundering. 18 U.S.C. § 1956(a)(2)(A).
Prior to trial, the government withdrew four counts of the indictment. Following a jury trial, with respect to Bing Sun and All Ports, the jury returned guilty verdicts on Counts One, Twenty-Four, and Twenty-Five. With respect to Patte Sun, the jury returned guilty verdicts on Counts Twenty-Four and Twenty-Five. The jury returned verdicts of not guilty on the remaining counts. Bing Sun was sentenced to sixty months' imprisonment; Patte Sun to forty-one months' imprisonment; and All Ports to two years' probation and a $100,000 fine. The district court entered each defendant's judgment on December 28, 2000. Each defendant filed a timely appeal.
The defendants contend that the AECA and its implementing regulations are constitutionally void for vagueness under the Due Process Clause of the Fifth Amendment to the United States Constitution. We review a defendant's challenge to the constitutionality of a statute de novo. United States v. Bostic, 168 F.3d 718, 721 (4th...
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