United States v. Mak

A defendant’s conviction under the Arms Export Control Act did not constitute reversible error where the district court properly instructed the jury that any information in the public domain cannot be “technical data.”

Chi Mak was convicted for attempt and conspiracy “to export a defense article” out of the country, in violation of the Arms Export Control Act (“AECA”). Mak moved for a new trial, asserting that the prosecution’s disclosure of an expert witness was untimely and that the AECA is unconstitutionally vague. The district court denied Mak’s motion for a new trial. Mak appealed, arguing that the jury instructions relating to “technical data” constituted plain error. The Ninth Circuit found that information in the public domain does not qualify as “technical data” and is therefore not subject to export control. The Court reasoned that the jury instructions on “technical data” did not amount to reversible error, because the jury was instructed that any information in the public domain cannot be “technical data.” In viewing Mak’s constitutional challenges to the AECA, the Court held that the statute does not violate the First Amendment because it is content neutral and substantially related to the Government’s interest in international arms control. The Court also rejected Mak’s arguments that the jury instructions on specific intent to violate the AECA deprived him of his Sixth Amendment rights. The Court found that the district court’s jury instructions on intent did not prejudice his ability to put on a meaningful defense, especially since substantial evidence indicated that Mak knew his actions were illegal. AFFIRMED.