Many white-collar cases start the same way – a person is an entrepreneur. He has a vision for a business he’d like to build. He wants to do great things and reform an industry.
Things are going well, but he wants to move to that next level. Getting to the next level – whatever it is – takes a little faith, a little elbow grease, and, sometimes, a few cut corners.
The trouble with cutting corners is that once you start to cut them, then get hard to uncut. The corner cutting gets baked into your business model. At some point, the cost of fixing the corner cutting exceeds what you think you can spend on it.
Some corners are worse to cut than others. If a business has gotten in the habit of having less money in cash reserves than it should, they may get away with that. If, on the other hand, like the folks in the First Circuit’s opinion in United States v. Wu, they skip getting licenses which are necessary for their import/export business to not be a crime, it can be a little worse.
Alex Wu and Annie Wei ran a business that sold things to folks in China. Specifically, they sold sophisticated electronic components.
As it happens, there are rules about when you can send sophisticated electronic components out of the United States. Our federal government would prefer to have items that could have a military application, even if they can also have a nonmilitary application, from going to a foreign country that might use those things to do us harm.
Mr. Wu and Ms. Wei’s company started small – as many do. By 2007, the company had five offices – three in China, one in the U.S., and one in Hong Kong – and 200 employees.
At some point in 1996, someone at the company printed a few regulations from the Commerce Department on Export Controls and placed them in a file at the company.
In 1997, Ms. Wei told Mr. Wu that she had mentioned to a potential vendor that she was selling things to China. The potential vendor refused to sell to her. She told Mr. Wu that the “‘big lesson’ from this ‘mistake’ was to avoid providing ‘extra’ information to vendors.”
Over time this lesson proved harder to follow as more and more vendors asked follow up questions about where the parts were going.
Ultimately, after shipping millions of dollars of equipment overseas, the two were indicted.
They were charged with – and later convicted of – a number of offenses, including:
The Munitions List Counts: Both Wu and Wei were convicted on two counts for, on two occasions in June 2006, exporting to China without a license “phase shifters” that are designated as defense articles on the U.S. Munitions List, 22 C.F.R. pt. 121.
There were also a number of other counts, not relevant to the issue they won on (but interesting if you’re into this kind of case).
The two Munitions List counts involved exports of “phase shifters”. According to the First Circuit,
Two waves are said to be “out of phase” when they have the same frequency but reach their peaks at different points. A phase shifter can change the phase of one of the two waves so that the waves exactly line up with one another (or, vice versa, so that waves that were previously “in phase” no longer line up with one another).
The Munitions List is a list of things that are munitions, and, hence, can’t be exported to certain countries without a license. The list is not a list of names of items, rather it’s a list of descriptions of kinds of things. So, to paraphrase an Easterbrook opinion, the list would prohibit bicycles, rather than a specific make of Huffy.
If you’re not sure if something is on the list, there’s a process where you can ask the State Department.
The government said the phase shifters were on the list. Mr. Wu and Mrs. Wei said they weren’t.
The government went and asked the State Department if phase shifters were on the list when they were exported by Mr. Wu and Mrs. Wei’s company. The State Department said they were.
The district court instructed the jury that it had to credit the State Department’s determination – after all, it’s the State Department.
This, the First Circuit held, was error. Whether something is on the Munitions List is an element of the crime. If the jury doesn’t get to decide it, that’s a serious problem. Even if it’s really complicated:
the government may not decide for itself that some prior act by a criminal defendant violated the law, and thereby remove that determination from the province of the jury.
The government tried to argue that the two really thought they were doing something wrong – they tried to shield the final destination of the phase shifters from others – but, as the court of appeals pointed out:
even if the jury found that Wu and Wei believed that phase shifters fell within the Munitions List restrictions, it would still have to conclude that the phase shifters actually did fall within the Munitions List restrictions (regardless of Wu and Wei’s beliefs).
The case was remanded for resentencing – because the convictions on a number of other charges still stand.