Friday, June 22, 2012
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Ninth Circuit Affirms Engineer’s Conviction in Chinese Spying Case
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a Chinese-born engineer’s conviction on charges resulting from the discovery that thousands of pages of documents relating to military technology had been passed to the People’s Republic of China.
Judges rejected Chi Mak’s claims that the Arms Control Export Act, as implemented by the International Traffic in Arms Regulations, is unconstitutionally vague; that U.S. District Judge Cormac Carney of the Central District of California gave erroneous jury instructions; and that the documents in question were not controlled under the act at the time he was arrested.
Mak, 71, is presently serving a sentence of more than 24 years in prison. Bureau of Prisons records show that he is currently housed at Lompoc Federal Correctional Institution and is due for release in 2027. A district court jury in Santa Ana found him guilty five years ago of conspiring to export U.S. defense technology to China, including data on an electronic propulsion system designed to make submarines virtually undetectable.
Passed to Chinese
Prosecutors said Mak, a naturalized U.S. citizen took thousands of pages of documents from his defense contractor employer, Power Paragon of Anaheim, and gave them to his brother, who passed them along to Chinese officials over a number of years. Mak was arrested in 2005 in Los Angeles after FBI agents stopped his brother and sister-in-law as they boarded a flight to Hong Kong with three encrypted CDs in their luggage that contained documents on the submarine propulsion system, a solid-state power switch for ships, and a Power Point presentation on the future of power electronics.
Mak’s wife, brother, sister-in-law, and nephew all entered into plea agreements.
Mak admitted at trial that he copied documents at work and kept the copies in his office. He denied knowing that he was breaking any laws, but Judge Milan D. Smith Jr., writing for the Ninth Circuit, said “there was overwhelming evidence that he knew his actions were illegal.”
Mak, Smith noted, had received extensive training on export law compliance, and there was considerable evidence that he knew the contents of the documents regarding the submarine propulsion and solid-state power switch technologies, which were at the heart of the case.
Presidential Power
The AECA regulates the export and import of “defense articles” and “defense services” out of and into the United States. It authorizes the president to designate articles and services to be included on the United States Munitions List, to require licenses for the export of those items, and to promulgate regulations regarding the import or export of those items.
The State Department promulgates the ITAR, which defines “technical data” subject to licensing. Under the regulations, “public domain” information is excluded from the definition of technical data.
Smith rejected defense arguments that by telling jurors that they had to accept as true the fact that information contained within the documents in question was “required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense articles,” Carney was usurping the function of the jury and relieving the government of its burden of proving that the materials were outside the public domain.
Calling the argument “circuitous,” Smith wrote:
“Because the district court specifically instructed the jury that any information in the public domain cannot be ‘technical data,’ we find that the district court did not err in its jury instructions concerning technical data.”
Not Ex Post Facto
The judge went on to say that Mak’s conviction did not violate the Ex Post Facto Clause.
The documents, Smith explained, fell within categories that were on the USML at the time Mak gave them to his brother with intent that they be passed to the Chinese, even though they were not certified as technical data until months later.
“The USML consists of a wide array of categories of defense articles and technology that are not certified in subcategories, nor need they be,” the judge emphasized. “The USML does not list particular documents because so many qualifying documents exist. …The Government’s certification in this case served only to confirm that the documents were covered by the USML at the time of the offense. The…documents were clearly covered by the USML at the time of Mak’s arrest and conviction because they directly related to ‘[w]arships, amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels and any vessels specifically designed or modified for military purposes.’”
The opinion was joined by Senior Judges Betty B. Fletcher and Andrew J. Kleinfeld.
The case, United States v. Mak, 08-50148, was argued on appeal by Deputy Federal Public Defender Kurt Mayer for the defendant and Assistant U.S. Attorney Gregory W. Staples for the government.
Copyright 2012, Metropolitan News Company