In United States v. Shih, --- F.4th ---, No. 20-50144 (9th Cir. 2023), a case in which the government cross-appealed, the Court reversed the district court’s judgment of acquittal on one count, and affirmed Shih’s other convictions.
The government charged Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China.
In affirming the convictions, the Court discusses the export regulations in detail. It also rejects a host of evidentiary challenges specific to this case.
I'm including the Ninth Circuit's summary below:
In a case in which a jury returned a guilty verdict on all counts in an indictment charging Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China, the panel reversed the district court’s judgment of acquittal on one count, affirmed Shih’s other convictions, and remanded.The Export Administration Regulations (EARs), administered by the Department of Commerce’s Bureau of Industry and Security, impose controls on certain exports to “serve the national security, foreign policy, nonproliferation of weapons of mass destruction, and other interests of the United States.” After the expiration of the Export Administration Act of 1979, the EARs were continued pursuant to Executive Order 13,222, which declared a national emergency under the International Emergency Economic Powers Act (IEEPA).The panel rejected Shih’s argument that Executive Order 13,222 was an improper invocation of presidential authority. The panel also rejected Shih’s argument that IEEPA violates the nondelegation doctrine.The judgment of acquittal on Count 2 (exporting MMICs without first having obtained the required license) rested on the district court’s construction of the term “rated for operation” in Export Control Classification Numbers 3A001.b.2.b and 3A001.b.2.c. The panel held that the district court erred in concluding that this term requires postmanufacture, pre-export testing. The panel therefore ordered reinstatement of the jury verdict on that count.Shih argued that the district court erred by failing to give his proposed jury instruction on the fundamental research exemption. The panel rejected this argument because other instructions given in their entirety cover the defense theory.The panel found no error in the district court’s evidentiary rulings because they were well within the district court’s discretion and Shih was able to present the substance of his defense. The panel found no reversible error in the admission of expert testimony. The panel held that even assuming Shih’s objection was timely, he did not establish that statements by the prosecutor during rebuttal argument so infected the trial with unfairness as to make the conviction a denial of due process. The panel found any error in the wire and mail fraud instructions harmless.Addressing sufficiency of the evidence, the panel held: (1) as to Counts 1 and 2, a rational factfinder could find that the exported MMICs were not exempt from the EARs as fundamental research; (2) as to Counts 3 through 8, a reasonable factfinder could find Shih’s misrepresentations material, and that the evidence supports a finding that Shih deprived a manufacturer of confidential information, a cognizable property interest under mail and wire fraud statutes; (3) the wire and mail fraud convictions were not based upon the invalidated right-to-control property theory; (4) as to computer fraud (Count 9), a rational factfinder could find unauthorized access to a web portal in furtherance of a specified crime; and (5) Shih’s attacks on Count 10 (money laundering) fail because the panel rejected his attacks on the underlying counts.The district court rejected Shih’s contention that he was denied due process in connection with the district court’s determination—on the government’s ex parte, in camera motion—that none of certain allegedly classified material was discoverable.
