The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT AND MOTIONS TO SUPPRESS EVIDENCE (DOC. NO. 21)
The United States has charged Defendant Qing Li with conspiracy to export defense articles without a license in violation of 22 U.S.C. § 2778 (the Arms Export Control Act, or "AECA") and to smuggle goods from the United States in violation of 18 U.S.C. § 554. Defendant moves to dismiss the indictment on the ground that the AECA is unconstitutionally vague as applied to Defendant. Defendant also moves to suppress evidence seized pursuant to allegedly unauthorized "customs enforcement subpoenas," and other evidence obtained as a derivative result of those allegedly unlawful subpoenas. For the reasons set forth below, the court hereby DENIES both motions.
On October 18, 2007, Defendant was charged by grand jury indictment with one count of conspiracy under 18 U.S.C. § 371. The indictment alleged that Defendant, a citizen of the People's Republic of China, conspired to export defense articles without a license, in violation of 22 U.S.C. § 2778, and to smuggle goods from the United States, in violation of 18 U.S.C. § 554. The defense articles were identified as Endevco 7270A-200K accelerometers.
A. Motion to Dismiss Indictment for Vagueness
The AECA criminalizes the willful exportation of defense articles without a license. 22 U.S.C. §§ 2278(b)(2), (c); United States v. Lee, 183 F.3d 1029,1032-33 (9th Cir. 1999). In the AECA context, a willful violation occurs where a defendant knows his or her conduct violates the law. United States v. Hsu, 364 F.3d 192, 197 (4th Cir. 2004) (AECA requires specific intent). At issue here is Category XII of the Munitions List, set forth in the AECA's implementing regulations at 22 C.F.R. § 121.1. This category includes, inter alia, "astro-compasses and star trackers and military accelerometers and gyros . . . ." 22 C.F.R. § 121.1.
Defendant argues that the court should dismiss the indictment because the AECA and its implementing regulations are unconstitutionally vague as applied to her. Specifically, Defendant argues that a person of ordinary intelligence could not determine that the Endevco accelerometer device is a "military accelerometer" requiring an export license. In support of this argument, she attaches to her motion two pages of manufacturer-provided "public information" regarding the Endevco accelerometer. She argues that "[a] person of ordinary intelligence would likely deem that data sheet incomprehensible," and that the sheet does not indicate whether the device is for military or weapons use. (Mot. at 3.) She also emphasizes the allegation that even prosecutors must request information from the State Department to determine if an item is on the list.
"Unless the law is impermissibly vague in all applications," a defendant challenging a law on vagueness grounds can argue only that the law is vague as applied to that defendant. Lee, 183 F.3d at 1031 (citing United States v. Iverson, 162 F.3d 1015, 1021 (9th Cir. 1998)); see also United States v. Kim, 449 F.3d 933, 942 (9th Cir. 2006) ("vagueness challenges to statutes that do not involve First Amendment violations must be examined as applied to the defendant") (citations omitted). A criminal statute is unconstitutionally vague, in violation of due process, "if a reasonable person of ordinary intelligence would [not] understand what conduct the statute prohibits." Lee, 183 F.3d at 1032 (citing Iverson, 162 F.3d at 1021). Furthermore, a regulation is unconstitutionally vague if it is not "capable of a limited interpretation such that '(1) ordinary people could understand what conduct is prohibited, and (2) those enforcing the law are provided with clear standards to constrain them.'" Lee, 183 F.3d at 1032 (citing United States v. Erickson, 75 F.3d 470, 475 (9th Cir. 1996)). Courts apply a less-strict vagueness test to a criminal statute regulating economic activity. United States v. Sun, 278 F.3d 302, 309 (4th Cir. 2002). Additionally, the inclusion of a mens rea requirement in a statute "significantly reduces any concern that the statute and regulation fail to provide proper notice." Lee, 183 F.3d at 1033; see also Vill. of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) ("scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed").
Defendant attempts to distinguish numerous cases in which circuit courts have rejected as-applied vagueness challenges to the AECA. See, e.g., Lee, 183 F.3d 1029; United States v. Helmy, 951 F.2d 988 (9th Cir. 1992); Hsu, 364 F.3d 192; Sun, 278 F.3d 302; United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979). She claims that these cases differ from hers because the defendants possessed specialized knowledge regarding the products they sought to export, whereas in her case the government cannot present evidence that she knew the device was a prohibited article. The court notes that not only does Defendant fail to cite a single case in which the court found the AECA unconstitutionally vague, her argument emphasizes the premature and misdirected nature of her challenge. Because the charging statute contains a scienter requirement (willful violation), innocent, accidental, or unknowing exportation of a proscribed device cannot support a conviction. Therefore, the relevant inquiry consists not of an abstract analysis of constitutional vagueness, but what Defendant knew. Such an inquiry will be undertaken by a jury and based on the evidence adduced at trial. See Lee, 183 F.3d at 1032-33. Here, the factual record has yet to be developed. Until an evidentiary record is created, the court cannot determine whether Defendant "in fact had fair notice that the statute and regulations proscribed [her] conduct." Hsu, 364 F.3d at 196. Application of these cited controlling authorities, in essence, renders Defendant's constitutional challenge moot at this juncture.*fn1
The court therefore DENIES Defendant's motion to dismiss the ...