Case 1:08-cr-20612-PAS

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ/OSullivan 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 Bujduveanus 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.

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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 Kesharis 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 Bujduveanus 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 Defendants Expert Witness Disclosure previews Defendant Bujduveanus intention to challenge the executives 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 Defendants intentions, a review of the Defendants many filings in this Courts 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 Defendants 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 DDTCs Munitions List classification is not subject to judicial review. The Arms Export Control Act expressly prohibits judicial review of the DDTCs

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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 Departments determination to place an item on the USML would undermine the executives 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

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). 5

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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 Presidents 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 Presidents 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 executives 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 defendants 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

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. 8

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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 minilegislature 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 DDTCs 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

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

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which he is charged with exporting in this case as defense articles. Consistent with such a prohibition, the Defendants 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 authoritys 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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