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UNITED STATES v. ABDELKADER HELMY

May 31, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
ABDELKADER HELMY and JAMES HUFFMAN, Defendants


Raul Ramirez, United States District Judge.


The opinion of the court was delivered by: RAMIREZ

RAUL A. RAMIREZ, UNITED STATES DISTRICT JUDGE

 Defendants ABDELKADER HELMY and JAMES HUFFMAN are charged, inter alia, with exporting controlled commodities in violation of the Arms Export Control Act ("AECA"), 22 U.S.C. §§ 2751-2794, and with conspiracy to export certain commodities in violation of the AECA and the Export Administration Act of 1979 ("EAA"), 50 U.S.C. app. §§ 2401-2420. By motion filed January 6, 1989, defendants seek reconsideration of the magistrate's order of December 12, 1988, which denied defendants' request to discover documents relating to the placement of the commodities at issue on the United States Munitions List of the AECA and the Commodity Control List of the EAA. *fn1"

 On February 13, 1989, the court entertained oral argument on the various issues raised by the moving and opposing papers. Marcus S. Topel, Esq. and Daniel Cook, Esq. appeared as counsel for defendant HELMY; Clyde Blackmon, Esq. and Dale Drozd, Esq. appeared as counsel for defendant HUFFMAN; Thomas E. Flynn, Assistant U.S. Attorney, appeared as counsel for the government. Having now reviewed the various pleadings filed by the parties, and being mindful of the oral arguments presented by respective counsel, the court issues the following memoranda opinion which, together with its previous order of February 24, 1989, is intended to resolve all issues raised by defendants in their request for reconsideration. *fn2"

 BACKGROUND

 The prosecution alleges that between December 15, 1987, and June 24, 1988, defendants HELMY and HUFFMAN conspired to violate the AECA and the EAA by attempting to ship various listed commodities from the United States to Egypt without first obtaining an export license. The government alleges that the subject commodities included an ablative carbon composite material, a chemical known as hydroxylterminated polybutadiene, microwave antennas, a carbon-carbon material, a rayon based carbon fabric, and missile nose cones -- all of which are allegedly important components of certain tactical and strategic missile systems, including this country's Pershing, Polaris, Trident, Minuteman, and Poseidon missiles, and the Space Shuttle. In addition to the conspiracy charges, the prosecution alleges that certain materials were actually purchased by HELMY, loaded on to an Egyptian C-130 transport, and flown to Egypt in various shipments occurring between March and June of 1988.

 On June 23, 1988, a criminal complaint was filed in this court which named, among others, defendant HELMY and HUFFMAN. On June 29, 1988, HELMY and HUFFMAN were indicted by the grand jury of this district. On October 24, 1988, defendant HELMY filed the underlying discovery motion with the magistrate, seeking, in pertinent part, all documents concerning:

 
1. The placement of the "defense articles" ("approximately 430 pounds of ablative carbon composite materials manufactured by the Fiberite Corporation") listed in Count Two of the indictment on the United States Munitions List (the "Munitions List") pursuant to 22 U.S.C. § 2778 and 22 C.F.R. § 127.1, and the maintenance of those "defense articles" on the Munitions List.
 
2. The placement of the "defense articles" listed in Count One of the indictment on the Munitions List, pursuant to 22 U.S.C. § 2778 and 22 C.F.R. § 127.1, and the maintenance of those "defense articles" on the Munitions List.
 
3. As to Requests 1 and 2 supra ;
 
(a) The existence of and the basis for any determination made by the President or his delegated designee to control the "defense articles" contained in Counts One and Two of the indictment and place them on the Munitions List;
 
(b) The opinions of the Director of the United States Arms Control and Disarmament Agency, if any, at to whether the export of the "defense articles" contained in Counts One and Two of the indictment will contribute to an arms race, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multinational arms control agreements, and how the export decisions process was coordinated with the Director of the United States Arms Control and Disarmament Agency;
 
(c) The existence of and the basis for any determination to maintain the "defense articles" contained in Counts One and Two on the Munitions List.
 
4. The placement of the "commodities" listed in Count One of the indictment on the Commodity Control List (the "CCL"), pursuant to the Export Administration Act of 1979 [ 50 U.S.C. App. § 2401 et seq.] and C.F.R. §§ 372.1, 375.3, and 387.6, and the maintenance of those "commodities" on the CCL;
 
(a) The foreign availability of all "commodities" alleged in the indictment as having been exported or as to which there was a conspiracy to export by the defendants;
 
(b) The existence of and basis for any determination made by the President or the Secretary of Commerce that adequate evidence was presented demonstrating that the absence of export controls on any of the "commodities" contained in the indictment would prove detrimental to the national security of the United States despite the foreign availability of the "commodities";
 
(c) The basis for any determination that all the "commodities" contained in the indictment would make a significant constitution (sic) to the military potential of any other country which would pose detrimental to the national security of the United States;
 
(d) The existence of any multilateral agreement, formal or informal, public or secret, to which the United States is a party and under the terms of which the export of any "commodities" contained in the indictment requires the specific approval of the parties to the multilateral agreement;
 
(e) The United States actively seeking the agreement of other countries, which supply "commodities" comparable to the "commodities" contained in the indictment, to control the exports of such "commodities" and the basis for the United States' decision that validated export licenses or other export licenses are necessary for these commodities pending the concluding of such an agreement.

 The magistrate issued her order denying defendants' motions on December 12, 1988. *fn3" With respect to defendants' motion to discover certain documents relating to the placement of the commodities at issue on both the AECA's Munitions List and the EAA's Commodity Control List, the magistrate premised her denial on alternative findings; first, the magistrate held that defendants failed to show that the requested documents would be material; alternatively, the magistrate held ...


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