Thursday, March 17, 2011

Export Conviction Upheld

Compliance people all understand that export controls law is almost impossibly complicated. It is hard to image a more complicated set of laws, especially when criminal enforcement is involved. But, is the law so complicated that it is unconstitutionally vague? That is the question the Ninth Circuit Court of Appeals addressed in United States v. Zhi Yong Guo.

Just or background, for a criminal law to be enforceable, it must be written in a way that allows people to understand what is illegal and to adjust their behavior accordingly. When the speed limit is set at 55 MPH, we all know what is expected. If, however, the speed limit we written as "Travel as fast as is appropriate given the circumstances described in a chart published in the official regulations and assuming the Governor has not let his executive order expire," would you know how fast to go?

The Defendant in this case conspired with others to export FLIR thermal cameras to China without the required licenses. FLIR cameras are prized by the military, security services, industry, and cryptozoologists for their ability to image people, animals, and blobsquatches in the dark. Because of their obvious value to people who do not have the best interests of the United States at heart, the Commerce Department controls their export to much of the world. So, next time you mount a Yeren hunt, be sure to get a license to export the FLIR cameras.

In this case, the defendant argued that the export controls laws are too vague to be constitutional. The Ninth Circuit discovered what compliance people have always known: it is damned complicated but not impossible to figure out. So, the Court upheld the conviction. While I have no sympathy for the defendant based upon his bad acts, I do have some sympathy for his criminal defense lawyer. Apparently, he got so frustrated trying to figure out the Commerce Control List that he threw up his hands and said, "This can't be constitutional."

1 comment:

Anonymous said...

Larry -

The Constitution is not so complex a document as to be considered incomprehensible. This is the argument that is invariably made by those who want to do things that fall outside the four corners of the document, as amended. Back in the day, it was taught as part of the typical high school civics curriculum - and the kids GOT IT!

Any time a lawyer throws his hands in the air and says "...it's so incomprehensible that it MUST be unconstitutional..." (s)he is admitting that the Constitution does not support the client's case, so (s)he is giving up.

Isn't that what we call inadequate (or possibly ignorant)counsel?

There are entire branches of government whose constitutionality is questionable at best, but that's a story for another time, and perhaps subject to some interpretation.

Your faithful Customs retiree