Feb

8

The Third Deadly Sin


Posted by at 11:45 pm on February 8, 2012
Category: Arms ExportCriminal PenaltiesDDTCGeneral

Space CircuitryA California man has been indicted in connection with his attempt to export radiation hardened, space qualified chips to the People’s Republic of China without an export license. The indictment, if true, tells an interesting tale.

According to the indictment, which was unsealed on Monday, the defendant Philip Chaohui He owned and operated a company called Sierra Electronic Instruments, of which he was the only employee. Estimated sales revenues for 2010 were $110,000. I was unable to locate any website for the company, and the company’s web footprint consisted of two sparse directory entries.

Even so, He and Sierra got their hands on $549,654 worth of radiation hardened, space qualified memory chips from Aeroflex, a Colorado Springs chip designer and manufacturer. Seven months later, He drove his car to the Port of Long Beach and to a PRC-flagged ship there which had recently arrived from Shanghai and was scheduled to return in a week. The chips in question were in the defendant’s trunk concealed “in several plastic infant formula containers placed inside five boxes which were sealed and labeled as “milk powder” written in Chinese.

The indictment doesn’t describe what happened next, but it’s pretty clear. The federal agent that had been tailing Mr. He informed his buddies who swooped down on Mr. He, waving guns and shouting typical law enforcement stuff at him before dragging him away in handcuffs. The indictment suggests that before the dockside bust, the feds had snooped into his bank account and phone records and identified numerous phone calls to the PRC and, more ominously, two wires from the PRC to Mr. He totaling just under $500,000. As a result, Mr. He’s careful concealment of the goods in baby formula was a waste of time.

It doesn’t take a rocket scientist to guess what happened here. Obviously, Aeroflex smelled a rat when this one-man storefront operation wanted to lay his hands on a half-million dollars worth of highly specialized space-qualified circuitry, so they alerted the authorities. All the while Mr. He was agonizing over whether it was safest to hide the goods in baby formula, cans of dog food or boxes of knitting needles, he was already a marked man. Had he gone in for a smaller amount (for which he certainly would have been paid less) he might be basking in the Southern California sun. Indeed, he reminds me of the would-be bicycle thief who tried to walk out of my condo building’s parking garage with two bicycles rather than racing off swiftly on one bicycle.

He went down too.

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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)


3 Comments:


Its “interesting” that DoJ brought this case in Colorado (in the 10th Circuit) rather that in the district where the attempted export occurred, no doubt in order to gain an unfair advantage over the defendant, and that it is being prosecuted by a “Special” Assistant U.S. Attorney. It may be a little early for the prosecution to go “He He He”.

The indictment states that “The DDTC has certified that these Aeroflex integrated circuits are ‘defense articles’ under Category XV(e) of the USML.” At trial, DoJ continues to rely on certificates from DDTC or BIS to establish the classification, and from that, the requirement for a license, in export control prosecutions. The nutty 9th Circuit even holds that such certificates are beyond judicial review because such classifications are “political questions” rather than issues of fact.

The 7th Circuit rejected the government argument that classifications were not reviewable in the Pulungun case. In the Roth case the 6th Circuit accepted Pulungun, but admitted and relied upon the DDTC certificate along with testimony from two other witnesses as evidence establishing the jurisdiction and classification of the actuators as military aircraft parts under USML Cat. VIII(h).

I would suggest that continued use of DDTC or BIS certificates at trial to establish jurisdiction and classification as a predicate to proving the license requirement is a blatant unconstitutional violation of the confrontation clause as clearly set forth in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). DDTC certificates are “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.'” Id. Therefore, the prosecution must present the declarant and the defense must be allowed to cross-examine him.

Comment by Hillbilly on February 9th, 2012 @ 3:15 pm

This time I rather agree with the article that the Feds have finaly made a real catch. If the guy made a hand delivery of these components hidden in milk powder packaging to a Chinese ship going back home ( an illegal act by itself ), then he is doomed and rightly so.

Comment by Alon on February 10th, 2012 @ 6:06 am

This appears to be a great example of industry policing itself–knowing when to smell a rat. Kudos to the invetigative agency (ies) as well. Obviously, this is not an individual caught up in a strict liability situation, rather a person bent on criminal intent. ( also not so smart)

Comment by 1811RTD on February 14th, 2012 @ 7:51 am