United states’ motion in limine concerning united states munitions list determinations

Case 1:08-cr-20612-PAS Document 175 Entered on FLSD Docket 03/19/2009 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 08-20612-CR-SEITZ/O’Sullivan

UNITED STATES OF AMERICA

vs.

TRAIAN BUJDUVEANU,

Defendants.
________________________________/

UNITED STATES’ MOTION IN LIMINE
CONCERNING UNITED STATES MUNITIONS LIST DETERMINATIONS

NOW COMES the United States of America, by and through the undersigned Assistant

United States Attorney, and hereby moves this Court for an order precluding the presentation of

evidence, direct or cross-examination, argument, or comment at trial or before the jury concerning

the propriety of the United States Department of State, Directorate of Defense Trade Controls’

classification of articles at issue in this case as "defense articles" and their inclusion on the United

States Munitions List.

Despite Defendant Traian Bujduveanu’s apparent disagreement with the classification of

the defense articles in this case, which include munitions hardware for the AH-1 Cobra Attack

Helicopter and F-14 Phantom Fighter Jet flown by the Iranian Air Force, such determinations are

reserved exclusively for the executive branch of the United States Government and not for the

Defendant nor for the jury sitting at his criminal trial. For this reason and those set out below, the

United States respectfully requests that this Court grant its Motion in Limine and preclude the

Defendant from challenging these classifications in Court or at trial.


Factual Background

On July 3, 2008, a Federal Grand Jury in Miami, Florida, indicted Defendant Bujduveanu,

along with his co-defendants, Orion Aviation Corp., Hassan Saied Keshari, and Kesh Air

International Corp. The Indictment charges the Defendants with: (1) conspiracy to violate the

International Emergency Economic Powers Act (“IEEPA”) by violating the United States Iran Trade

Embargo and to violate the Arms Export Control Act, in violation of 50 U.S.C. §§ 1702 and 1705(a),

31 C.F.R. pts. 560.203 and 560.204, 22 U.S.C. § 2778(b)(2), and 22 C.F.R. §§ 121.1, 123.1, and

127.1, all in violation of 18 U.S.C. § 371; (2) violations of the IEEPA by violating the U.S. Iran

Trade Embargo, in violation of 50 U.S.C. §§ 1702 and 1705(a), 31 C.F.R. pts. 560.203 and 560.204,

and Executive Orders 12957, 12959, and 13059, and 18 U.S.C. § 2; (3) violations of the Arms

Export Control Act, in violation of 22 U.S.C. §§ 2778(b)(2) and (c), 22 C.F.R. §§ 121.1, 123.1, and

127.1, and 18 U.S.C. § 2; and (4) making false statements to Bureau of Immigration and Customs

Enforcement and U.S. Department of Commerce officials, in violation of 18 U.S.C. § 1001(a)(2).

(D.E. 25).

Specifically, the Indictment alleges that Defendant Keshari took orders from customers in

Iran for purchases of American made aircraft parts to be shipped to Iran. Keshari, through his

company Kesh Air, placed orders for aircraft parts with Defendant Bujduveanu and his company,

Orion Aviation. Bujduveanu filled the orders and sent them to Keshari’s Iranian customers by way

of Dubai, United Arab Emirates (“UAE”). The Indictment specifically identifies more than four

different transactions in which Keshari solicited quotes for and purchased military aircraft parts from

Bujduveanu and in which Bujduveanu subsequently shipped those parts to Iran via Dubai in six

different shipments. Each of the parts specified in the indictment as being exported by Defendant

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Bujduveanu has been designated by the Department of State, DDTC, as defense articles on the

USML. The DDTC Determinations are attached as Exhibit A.

In Defendant Bujduveanu’s Expert Witness Disclosure, filed February 18, 2009, (D.E. 164)

and attached hereto as Exhibit B, the Defendant disclosed William Clements as an expert who is

expected to offer testimony on the following issue, among others:

Mr. Clements will further testify that the manufacturer is an indispensable party to a State
Department decision that a particular item is on the United States Munitions List, because
only the manufacturer knows what the item was originally designed for. He will testify that
there can be purely commercial parts included in military aircraft, so the fact that an item is
going into a military item is suggestive, but not dispositive of the question as to whether the
part is a defense article listed on the United States Munitions List.
Id. at 2.

The Defendant’s Expert Witness Disclosure previews Defendant Bujduveanu’s intention

to challenge the executive’s determination that the articles at issue are properly listed on the United

States Munitions List. In so doing, the Defendant seeks to substitute his own judgment for that of

the executive branch of the United States Government - a tact which is strictly prohibited by law.

Should there be any doubt regarding the Defendant’s intentions, a review of the Defendant’s many

filings in this Court’s docket clearly demonstrate that the Defendant plans to argue to this Court and

to the jury that his assessment of the defense articles is correct and should, therefore, be substituted

for the classifications rendered by the Directorate of Defense Trade Controls. In the sampling of

the Defendant’s filings attached hereto as Exhibits C, D, E, and F, the Defendant attempts to

explain that the parts at issue are not military or are not suitable for military use. This

“explanation” would be irrelevant to any justiciable issue at trial.

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Memorandum of Law

A. The Arms Export Control Act and the United States Munitions List

The Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, authorizes the President of the

United States to control the export of “defense articles” from the United States. Pursuant to the

authority granted in the AECA, the State Department, Directorate of Defense Trade Controls

(“DDTC”), promulgates regulations, which are known as the International Traffic in Arms

Regulations (“ITAR”) (22 C.F.R. §§ 120-130). These regulations specifically govern the export

of “defense articles.” The ITAR also contain the United States Munitions List (“USML”), 22

C.F.R. § 121.1, which designates what items are “defense articles.” By necessity, the USML is

categorical, in that items are not listed by specific manufacturer, make, or model number. Pursuant

to the authority delegated by the President of the United States, the DDTC makes the determination

whether a particular item (taking into account the manufacturer, make, model, etc.) is a “defense

article” included on the USML.

Once an item is designated as a “defense article” on the USML by the DDTC, a person or

governmental entity seeking to export that item from the United States must receive a license or

other approval to do so from the DDTC. Under the AECA and corresponding regulations, it is

unlawful to “conspire to export...any defense article or to furnish any defense service for which a

license or written approval is required by this subchapter without first obtaining the required license

or written approval from the Directorate of Defense Trade Controls.” 22 U.S.C. § 2778 & 22 C.F.R

§§ 121.1, 123.1 & 127.1(a)(3).

B. The DDTC’s Munition’s List classification is not subject to judicial review.

The Arms Export Control Act expressly prohibits judicial review of the DDTC’s

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determination:

h. Judicial review of designation of items as defense articles or services.
The designation by the President (or by an official to whom the President's functions under
subsection (a) of this section have been duly delegated), in regulations issued under this
section, of items as defense articles or defense services for purposes of this section shall not
be subject to judicial review. 22 U.S.C § 2278(h).

See also, United States v. Martinez, 904 F.2d 601, 602 (11th Cir. 1990) (rejecting the defendants’

challenge to placement of an item on the USML and stating that “[t]he question whether a particular

item should have been placed on the Munitions List possesses nearly every trait that the Supreme

Court has enumerated traditionally renders a questions 'political.'").1

In Martinez, the Eleventh Circuit squarely addressed the issue at hand:

Defendants do not assert that Congress lacks power to place restrictions on exports. They
do not contend that the statute under which they were prosecuted violates any right secured
to them by the Constitution. They interpose no defense of justification. They do not question
that administrative and congressional avenues were available to them for securing removal
of [the subject item] from the Munitions List. Instead, they ask the Judicial Branch of
Government to excuse conduct which they knew to be criminal, based on their disagreement
with a political decision made by the Executive Branch of Government. The political
decision concerning the defense of this country is not judicially reviewable. Martinez, 904
F.2d 601, 602 (11th Cir. 1990).

The Martinez Court reasoned that judicial review of the State Department’s determination

to place an item on the USML would undermine the executive’s authority to implement export

controls over munitions which Congress has specifically delegated to the President. Judicial review

would, in effect, place jurors and courts into the position of policy making for which they are not

1
See also, Karn v. U.S. Dept. of State, 925 F.Supp. 1 (D.D.C. 1996) (applying Section
2778(h) strictly and rejecting any challenge to the listing of items on the USML), remand on
other grounds, 107 F.3d 923 (D.C. Cir. 1997) (per curiam); United States v. Mandel, 914 F.2d
1215, 1223 (9th Cir. 1990) (rejecting a defense attempt to obtain discovery relating to the
Department of Commerce's decision to include the exported item on the Commerce Control
List).

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experienced, equipped, nor accountable. Further, the review would intrude upon and interfere with

foreign policy and national security determinations, which are constitutionally the province of the

executive and legislative branches of the government and not the province of judges and juries. In

short, these policy determinations plainly involve political questions which should not be resolved

in the judicial forum.

C. The exclusive role of the Executive has historical precedent that extends beyond the
export control context.

Long ago, the Supreme Court held that Congress may vest the President with the

discretionary authority to determine whether certain facts exist and warrant calling men to war and

to make other similar factual determinations concerning the national security and defense, which

factual determinations other public officials may not review or reject. Martin v. Mott, 25 U.S. 19

(1827) (finding that Congress had vested the President with the exclusive authority to determine

whether the facts and exigency of the threat warranted calling the militia to service and that the

President’s factual determination was conclusive upon all other persons, whether a state Governor,

the judiciary, or an individual citizen). The Supreme Court in Martin explained that, where

Congress had authorized the President to act in matters of national security and war, the President

must be permitted to make factual determinations and exercise his authority. Ultimately, the Court

found that a watchful electorate and legislature would impose the necessary and sufficient review

of the President’s factual determinations and exercise of authority:

The law does not provide for any appeal from the judgment of the President, or for any right
in subordinate officers to review his decision, and in effect defeat it. Wherever a statute
gives a discretionary power to any person, to be exercised by him, upon his own opinion of
certain facts, it is a sound rule of construction that the statute constitutes him the sole and
exclusive judge of the existence of those facts. Martin, 25 U.S. at 31.

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Criminal prosecutions in other national security contexts have taken the same approach. For

example, in Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962), cert denied, 374 U.S. 856

(1963), which involved a criminal prosecution for the unlawful disclosure of classified information,

the D.C. Circuit held that under 50 U.S.C. § 783 the government was not required to show that a

document was properly classified, reasoning that the executive’s classification determination is not

reviewable as part of the criminal prosecution. Id.at 557-560. In this situation, the defendant is free

to contend that a particular document or information was not classified, but the defendant is not free

to suggest or contend that the classification determination was in error or that the agency should not

have classified the document or that the agency may have overclassified the document. In the words

of the Court of Appeals, this legal argument would be “absurd[].” The Court of Appeals explained:

But certainly an employee of the State Department could not bring an action in the courts
to remove the label ‘Secret’ attached by his superiors to a particular document, simply
because he was being blackmailed and wished to be able to offer the document to his
blackmailers without criminal consequences. Merely to describe such a litigation is enough
to show its absurdity. Yet appellant [defendant] is urging that after such an employee has
obtained and delivered a classified document to an agent of a foreign power, knowing the
document to be classified, he can present proof that his superior officer had no justification
for classifying the document, and can obtain an instruction from the court to the jury that one
of their duties is to determine whether the document, admittedly classified, was of such a
nature that the superior was justified in classifying it. The trial of the employee would be
converted into a trial of the superior. . . Id., 317 F.2d 559-60.

See also, United States v. Boyce, 594 F.2d 1246, 1251 (9th Cir. 1979) (affirming conviction of TRW

employee working at CIA on contract regarding encrypted teletype communications with CIA on

charges of, among others, transmitting national defense info to unauthorized persons, disclosure of

classified info and rejecting defendant’s attempt to challenge classification determination or

propriety of classification; stating that the “propriety of the classification is irrelevant. The fact of

classification of a document or documents is enough to satisfy the classification element of the

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offense.”).

The case for precluding judicial and jury review of the determination to place an item on the

USML is even stronger than in the Scarbeck or Boyce context. First, the AECA includes an express

limitation on judicial review (22 U.S.C. § 2778(h)), while section 783 does not. Second, a USML

determination is generally subject to inter-agency deliberation unlike determinations of classification

which are often made by individual officials or agencies without additional input from other

agencies. Third, a private party has the ability to be heard as part of a prescribed administrative

process with regard to the placement of an item on the USML (and even appeal administratively an

“adverse” determination), while no administrative process exists with regard to classification

determinations. See 22 C.F.R. § 120.4 (ITAR provision regarding “Commodity Jurisdiction”).2

Finally, USML determinations are the result of a quasi-public process in that the executive authority,

acting through the State Department, must periodically review the items on the USML to determine

whether designations of items are still appropriate. The executive must report on these reviews to

Congress and must provide advance notice to Congress prior to the removal of items from the

USML 22 U.S.C. § 2778(f)(1); 22 C.F.R. § 120.4(a).

D. The Defendant should not be permitted to substitute his judgment for the judgment of
the Executive Branch of the United States Government.

In the instant case, the Defendant exported defense articles without the requisite State

Department license, though with the knowledge that the item had been designated on the USML,

and he is not now entitled to voice disagreement with that designation in this context. Should the

2
Defendant Bujduveanu is apparently familiar with this administrative process, as he has
engaged in a recent, post-indictment campaign to administratively challenge the classifications
of the items at issue in this case. See Exhibits C, D, E, and F.

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Defendant be permitted to do so, he would be, in effect, assuming for himself the power of the

United States Government to regulate the export of munitions and their component parts. Simply

put, the Court should not permit the Defendant to insert his individual choice and the derogation of

authority to himself in making foreign and military policy decisions which the people and

Constitution have vested in the President and Congress. See, e.g., United States v. Dougherty, 473

F.2d 1113, 1136 (D.C. Cir. 1972) (“[r]ules of law or justice involve choice of values and ordering

of objectives for which unanimity is unlikely in any society, or group representing the society,

especially a society as diverse in cultures and interests as ours...[t]o assign the role of mini-

legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and

administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of

viable democracy.”).3

If the Defendant cares to introduce evidence or otherwise argue that he was not trying to

export, for example, a fitting assembly for the AH-1 Attack Helicopter, but rather a different item

altogether, that is certainly permissible at trial. However, using the same example, the Defendant

should not be permitted to challenge the DDTC’s conclusion that the particular fitting assembly for

the AH-1 Attack Helicopter is a “defense article.”

As such, the United States submits that the Defendant should be prohibited from challenging

at trial, in Court, or in the presence of the jury the propriety of the DDTC designations of the items

3
See also, United States v. Karat, 797 F.2d 580, 587-90 (8th Cir. 1986) (highlighting
arrogance of the defendant in a democratic society based on the rule of law), cert. denied, 481
U.S. 1030 (1987); P.L. 105-261 § 1511(1) (“It is the sense of Congress that (1) United States
business interests must not be placed above United States national security interests . . .”)
(codified at 22 U.S.C. § 2778 note).

9


which he is charged with exporting in this case as “defense articles.” Consistent with such a

prohibition, the Defendant’s expert witness testimony should be limited insofar as the testimony is

offered to explain the process of making USML determinations or any flaws he believes to be a part

of that process. Further, the Defendant should be prohibited from cross-examining Government

witnesses or challenging Government evidence offered for the purpose of demonstrating that the

articles have, in fact, been designated by the DDTC as “defense articles” on the USML. Simply put,

the subject matter of whether items should or should not have been designated as USML “defense

articles” must be strictly off limits.

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Conclusion

For all of the foregoing reasons, the United States respectfully requests that this Court grant

its Motion in Limine and preclude the Defendant from challenging in Court the executive authority’s

classification of the articles in this case as “defense articles” contained on the USML.

Respectfully submitted,

R. ALEXANDER ACOSTA
UNITED STATES ATTORNEY

By: s/Meissa Damian
Melissa Damian
Assistant United States Attorney
Florida Bar No. 0068063
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9018
Fax: (305) 536-4675

RYAN P. FAYHEE
Special Assistant U.S. Attorney
Illinois State Bar No. 6281368
Trial Attorney
Counterespionage Section
National Security Division
U.S. Department of Justice
1400 New York Avenue, NW
Washington, DC 20005
Telephone: (202) 307-1187
ryan.fayhee@usdoj.gov

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CERTIFICATION OF SERVICE

I HEREBY CERTIFY that on March 19, 2009, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF.

s/Melissa Damian
Melissa Damian
Assistant United States Attorney

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United states’ motion in limine concerning united states munitions list determinations

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