US v. Cardoen

Decision Date28 December 1994
Docket NumberNo. 93-241-CR.,93-241-CR.
Citation898 F. Supp. 1563
PartiesUNITED STATES of America, Plaintiff, v. Carlos CARDOEN, Franco Saffa, Jorge Burr, Industrias Cardoen Limitada, a/k/a INCAR, Swissco Management Group, Inc., Edward A. Johnson, Ronald W. Griffin, and Teledyne Industries, Inc., d/b/a Teledyne Wah Chang Albany, Defendants.
CourtU.S. District Court — Southern District of Florida

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Kendall Coffey, United States Attorney, Frank Tamen, Assistant United States Attorney, Eduardo Palmer, Assistant United States Attorney, Miami, Fla., for Plaintiff.

William J. Linklater, Chicago, IL, for Teledyne Industries, Inc.

Gerald Houlihan, Miami, FL, and Elliot Scherker, Ryan Reetz, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, FL, for Edward A. Johnson.

Brian O'Neill, Santa Monica, CA, for Ronald W. Griffin.

REISSUED ORDER ON HEARING HELD PURSUANT TO SECTION 6 OF THE CLASSIFIED INFORMATION PROCEDURES ACT*

HIGHSMITH, District Judge.

THIS CAUSE came before the Court at a hearing, held on November 18, 1994, and November 23, 1994, pursuant to Section 6 of the Classified Information Procedures Act. Having considered the evidence presented at the hearing, having heard arguments of counsel, and being otherwise fully advised in the premises, the Court makes the following written findings regarding the use, relevance and admissibility of the classified information sought to be introduced at the upcoming trial of this action, as required by the Act.

PROCEDURAL HISTORY

In light of the complexity of this case, the Court finds it useful to set out in some detail the procedural history of the litigation.

a. The charges:

On May 26, 1993, the grand jury returned a twenty-one count indictment against the above-named defendants. The indictment charges the defendants with violations of the export laws of the United States and with making false statements to the government. These charges arise from the exportation of zirconium and fuze components to Chile, which were allegedly destined for the manufacture of cluster bombs later sold to Iraq. Only three of the eight defendants charged in the indictment have appeared before the Court. They are: Teledyne Industries, Inc. d/b/a Teledyne Wah Chang Albany ("Teledyne"); Edward A. Johnson; and, Ronald W. Griffin. The five defendants who have not appeared are: Carlos Cardoen; Franco Saffa; Jorge Burr; Industrias Cardoen Limitada, a/k/a INCAR; and Swissco Management Group, Inc. ("Swissco").

Pursuant to various pretrial motions, the Court has narrowed the scope of the case presently scheduled for trial in February, 1995. On March 22, 1994, the Court dismissed Counts II through VI of the indictment as to Defendant Teledyne, based on the applicable statute of limitations. By order dated April 25, 1994, the Court severed the first ten counts of the indictment, which pertain to zirconium exports, from the last eleven counts, which pertain to the export of fuze components.1 Thus, the counts of the indictment that are scheduled for trial in February, 1995, and the defendants charged in said counts, are as follows:

Count I: Conspiracy to export ordnance-grade zirconium sponge and compacts illegally and to make false statements to the government in connection with these exports, in violation of 18 U.S.C. § 371, against Cardoen, INCAR, Swissco, Johnson, and Teledyne.
Count II: Use of export license number B100563 on or about May 8, 1987, to export 35,000 pounds of ordnance-grade zirconium sponge contrary to the terms of the Commerce Department license, in violation of 50 U.S.C.App. § 2410(a) and 18 U.S.C. § 2, against Cardoen and Johnson.
Count III: Exportation of 2,640 pounds of ordnance-grade zirconium compacts on or about June 4, 1987, without a State Department license, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 2, against Cardoen and Johnson.
Count IV: Exportation of 35,000 pounds of ordnance-grade zirconium compacts on or about July 9, 1987, without a State Department license, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 2, against Cardoen and Johnson.
Count V: Making false statements on or about November 2, 1987, in connection with the application for Commerce Department license number B273941 for exporting 1,144 pounds of ordnance-grade zirconium compacts, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2, against Cardoen and Johnson.
Count VI: Exportation of 1,144 pounds of ordnance-grade zirconium compacts on or about January 9, 1988, without a State Department license, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 2, against Cardoen and Johnson.
Count VIII: Making false statements on or about June 23, 1988, in connection with the application for Commerce Department license number B335756 for exporting 100,000 pounds of ordnance-grade zirconium sponge, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2, against Cardoen, INCAR, Johnson, and Teledyne.
Count X: Making false statements to government agents on or about January 27, 1993, in violation of 18 U.S.C. § 1001, against Griffin.2
b. The elements of the charged offenses:

As may be gleaned from the foregoing summary, the charged substantive offenses consist of:

• exportation of ordnance-grade zirconium compacts without a State Department license, in violation of the Arms Export Control Act, 22 U.S.C. § 2778;
• exportation of ordnance-grade zirconium sponge contrary to the terms of a Commerce Department license, in violation of the Export Administration Act, 50 U.S.C.App. §§ 2401-10; and
• making false statements to government agents and/or agencies, in violation of 18 U.S.C. § 1001.

As to several of the counts, the government charges the commission of these offenses both directly and through aiding and abetting, pursuant to 18 U.S.C. § 2.

To establish a violation of the Arms Export Control Act, 22 U.S.C. § 2778, the government must prove that a defendant willfully exported defense articles, which fall within the United States Munitions List, without a license from the State Department. United States v. Obiechie, 825 F.Supp. 1335, 1341 (N.D.Ill.1993), rev'd on other grounds, 38 F.3d 309 (7th Cir.1994). Because the Act imposes criminal sanctions only on those persons who violate it "willfully," the government has the burden of proving specific intent as to this offense. United States v. Adames, 878 F.2d 1374, 1377 (11th Cir.1989). To establish a violation of the Export Administration Act through the exportation of materials, contrary to the terms of a Commerce Department license, the government must prove that a defendant knowingly violated the terms of the license. 50 U.S.C.App. § 2410(a). See also United States v. Geissler, 731 F.Supp. 93, 99-100 (E.D.N.Y.1990); United States v. Gregg, 829 F.2d 1430, 1436-37 (8th Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1994, 100 L.Ed.2d 226 (1988). As to the charges of making false statements to government agents and/or agencies, the relevant statute makes it an offense for anyone, in any matter within the jurisdiction of any department or agency of the United States, to knowingly and willfully falsify, conceal, or cover up by any trick, scheme, or device, a material fact; or to make any false, fictitious or fraudulent statements or representations; or to make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry. 18 U.S.C. § 1001. To establish this offense the government must prove: that a defendant knowingly made a false statement or made or used a false document, in relation to a matter within the jurisdiction of a department or agency of the United States; that the false statement or false document related to a material matter; and that the defendant acted willfully and with knowledge of the falsity. Offense Instruction No. 29, Pattern Jury Instructions for Criminal Cases, Eleventh Circuit Court of Appeals, 1985.

In addition to the foregoing substantive offenses, the indictment charges several defendants with conspiracy to engage in these offenses, in violation of 18 U.S.C. § 371. To establish the commission of this crime as to a particular defendant, the government must prove the existence of the conspiracy; that the defendant willfully became a member of the conspiracy; and that one of the alleged conspirators knowingly committed at least one of the overt acts described in the indictment, in furtherance of the conspiracy. Offense Instruction No. 4.1, Pattern Jury Instructions for Criminal Cases, Eleventh Circuit Court of Appeals, 1985. Similarly, as to the aiding and abetting charge under 18 U.S.C. § 2, the government must prove that the aider and abettor willfully associated himself with the substantive crime charged, and willfully participated in it. Special Instruction No. 6, Pattern Jury Instructions for Criminal Cases, Eleventh Circuit Court of Appeals, 1985.

c. Discovery of classified information:

In the course of the pretrial proceedings in this action, the Court has entertained a number of motions submitted by Defendants Teledyne, Johnson, and Griffin, seeking to compel production of classified information by the government. In support of their numerous motions, these defendants have claimed that the classified information sought was material to their defense, and therefore constituted discoverable evidence, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Fed. R.Crim.P. 16.

In its order of May 19, 1994, the Court analyzed in depth the defendants' contentions. The Court noted that a number of the offenses charged in the indictment require willfulness as an element of the offense.3 As to the specific intent element of these offenses, the Court recognized in its order that the defendants may attempt to show that they lacked the required criminal intent because they honestly believed that they were performing an otherwise criminal act in cooperation with the government. S...

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  • U.S. v. Pitt
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 15, 1999
    ...that refusal to allow "CIA Defense" for charges of attempted murder and witness tampering was not error). 7. United States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995), aff'd sub nom United States v. Johnson, 139 F.3d 1359 (11th Cir.), reh'g denied, 149 F.3d 1197 (11th Cir. 1998) (determi......
  • U.S. v. Giffen, S1 03 CR.404(WHP).
    • United States
    • U.S. District Court — Southern District of New York
    • July 2, 2004
    ...designed to protect the rights of the defendant while minimizing the associated harm to national security."); United States v. Cardoen, 898 F.Supp. 1563, 1569 (S.D.Fla.1995) ("[CIPA] `established a procedural framework for ruling on questions of admissibility involving classified informatio......
  • U.S. v. Johnson
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 28, 1998
    ...he could show that he relied on official government communications before acting in a manner proscribed by law. See United States v. Cardoen, 898 F.Supp. 1563 (S.D.Fla.1995). Entrapment by estoppel occurs when a government official incorrectly informs a defendant that certain conduct is leg......
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  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • March 22, 2008
    ...where defendant's second denial did not "further impair the operations of the government"). (108.) See, e.g., United States v. Cardoen, 898 F. Supp. 1563, 1573 (S.D. Fla. 1995) (requiring proof of two elements for entrapment defense). The two elements are: (i) material government inducement......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • March 22, 2006
    ...even though both documents were presented in same transaction and contained same falsity). (108.) See, e.g., United States v. Cardoen, 898 F. Supp. 1563, 1573 (S.D. Fla. 1995)(requiring proof of two elements for entrapment defense). The two elements are: (i) material government inducement o......
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    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • March 22, 2007
    ...even though both documents were presented in same transaction and contained same falsity). (108.) See, e.g., United States v. Cardoen, 898 F. Supp. 1563, 1573 (S.D. Fla. 1995) (requiring proof of two elements for entrapment defense). The two elements are: (i) material government inducement ......
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    ...where defendant's second denial did not "further impair the operations of the government"). (110.) See, e.g., United States v. Cardoen, 898 F. Supp. 1563, 1573 (S.D. Fla. 1995) (requiring proof of two elements for entrapment defense). The two elements are: (i) material government inducement......
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