Argued and Submitted, Honolulu, Hawai'i: February 18,
Appeal from the United States District Court for the District of Hawai'i. D.C. No. 1:05-cr-00486-SOM-KSC-1. Susan Oki Mollway, Chief District Judge, Presiding.
The panel affirmed a conviction for violations of the Arms Export Control Act of 1976, the Espionage Act of 1917, and related provisions on charges that the defendant unlawfully exported defense services and technical data related to the design of the B-2 stealth bomber and other classified government projects to the People's Republic of China, and that he disclosed related classified information to persons in Switzerland, Israel, and Germany.
The defendant argued that evidence obtained during his interrogations should have been suppressed because of an unnecessary or unreasonable delay in presentment to a magistrate judge. The panel rejected the defendant's contention that the words " arrest or other detention" in 18 U.S.C. § 3501(c) expand the right to prompt presentment beyond the contours of Fed. R. Crim. P. 5(a), meaning that the right to presentment may attach even absent formal arrest. Assuming without deciding that " other detention" and formal " arrest" in § 3501(c) have different meanings, the panel held that the defendant cannot invoke the McNabb-Mallory rule -- which generally renders inadmissible confessions made during periods of detention that violate the prompt presentment requirement of Fed. R. Crim. P. 5(a) -- because he was not, during the period in question, either formally arrested or in " other detention" within the meaning of § 3501.
The panel held that there was no error in the district court's jury instructions on the government's burden with respect to information in the public domain and basic marketing information.
Georgia K. McMillen (argued), Wailuku, Hawai'i, and Harlan Y. Kimura, Honolulu, Hawai'i, for Defendant-Appellant.
Stephan E. Oestreicher, Jr. (argued), Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C.; Florence T. Nakakuni, United States Attorney, Kenneth M. Sorenson, Assistant United States Attorney, District of Hawai'i, Honolulu, Hawai'i; Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Acting Deputy Assistant Attorney General, Criminal Division; John P. Carlin, Acting Assistant Attorney General, Virginia M. Vander Jagt, Robert E. Wallace, Jr., Attorneys, National Security Division, United States Department of Justice, Washington, D.C., for Plaintiff-Appellee United States.
Before: Michael Daly Hawkins, M. Margaret McKeown, and Carlos T. Bea, Circuit Judges. Opinion by Judge McKeown.
McKEOWN, Circuit Judge:
Noshir Gowadia appeals his conviction for violations of the Arms Export Control Act of 1976 [" AECA" ], the Espionage Act of 1917, and related provisions on charges that he unlawfully exported defense services and technical data related to the design of the B-2 stealth bomber and other classified government projects to the People's Republic of China, and that he disclosed related classified information to persons in Switzerland, Israel, and Germany. See 22 U.S.C. § 2778; 18 U.S.C. § § 793(e), 794(a).
At issue is Gowadia's claim that his right to prompt presentment before a magistrate judge was triggered before he was actually arrested, and that the inculpatory statements he made to federal agents investigating his activities should have been suppressed. Gowadia also challenges the jury instructions as unconstitutional on the ground that the government was wrongly relieved of its burden to prove that the information Gowadia exported was not in the public domain and was not " basic marketing information" exempted from the definition of " technical data" under the AECA. Because these arguments fail as a matter of law, we affirm Gowadia's conviction.
Gowadia is a naturalized American citizen who worked for nearly twenty years as an engineer at the Northrop Corporation on the design of the B-2 stealth bomber and other highly classified projects. The B-2 became the United States's " premier strategic bomber," in part because it was designed to be " low-observable." Gowadia was a lead engineer of a system designed to enable the B-2 to avoid detection by suppressing the infrared signature emanating from the aircraft. The United States maintains a " significant operational lead" in the manipulation of aircraft signatures. Because of its strategic importance, information relating to this system and other stealth technologies is especially tightly controlled.
Shortly after leaving Northrop, Gowadia started a business, N.S. Gowadia, Inc. (" NSGI" ), to provide consulting services to the aerospace engineering industry. At NSGI, Gowadia developed and marketed a system called AIRSS (Advanced Infrared Suppression System), which, like the systems he designed at Northrop, was intended to reduce the infrared signature of aircraft.
Through NSGI, Gowadia sent a series of letters and emails to three foreign individuals revealing information that he later admitted was classified. In October 2002, for example, Gowadia sent a letter to an official at the Swiss Ministry of Defense detailing Gowadia's success in suppressing the infrared signature of the B-2 and offering his services to help reduce the signature of Swiss military helicopters. He sent similar communications to individuals working for defense ...