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Second Circuit Affirms Constitutionality of Arms Export Control Act

In United States v. Mark Henry, the Second Circuit (Jacobs, Cabranes, and Wesley, Js.) affirmed that the Arms Export Control Act (“AECA”), 22 U.S.C. § 2751 et seq., does not constitute an unconstitutional delegation of legislative authority to the executive branch, in addition to addressing various issues of trial procedure.  The defendant, Mark Henry, appealed his 2014 conviction following a jury trial of violating and attempting to violate the AECA by exporting “ablative materials”—military-grade technology used in rockets and missiles—and microwave amplifiers to customers in Taiwan and China.  The AECA prohibits the exportation of ablative materials, microwave amplifiers, and other “defense articles” except pursuant to a license issued by the Directorate of Defense Trade Controls, a division of the U.S. Department of State.  The government presented evidence at trial that the defendant was aware of the need for an export license, that he did not have such a license, and that instead of acquiring a license the defendant took steps to conceal his exportation of restricted materials through the use of intermediaries, fictitious companies, and falsified documents, among other things.  The court allowed the defendant, who is from China and primarily speaks Mandarin, to testify at trial in English through the help of a standby interpreter, although the court otherwise required a translator to assist the defendant throughout the trial.

On appeal, the defendant challenged his conviction principally on the grounds that the AECA violates the non-delegation doctrine, a constitutional principle grounded in precepts of separation of powers that prohibits Congress from delegating its law-making powers to the President or executive-branch administrative agencies.  Slip Op. 10.  However, it is well-established that there are exceptions to the non-delegation doctrine, and the Supreme Court has held that Congress may permissibly authorize the executive branch to “fill up the details” in existing legislation by “establish[ing] . . . administrative rules and regulations.”  Slip Op. 11 (quoting United States v. Grimaud, 220 U.S. 506, 517 (1911)).  To pass constitutional muster, Congress must include in the legislation that purports to delegate regulatory powers to federal agencies an “intelligible principle” to guide the agency’s exercise of that power and the “boundaries of this delegated authority.”  Slip Op. 11 (quoting American Power & Light Co. v. S.E.C., 329 U.S. 90, 105 (1946)).

Before considering the language of the AECA, the Second Circuit noted that courts have struck down legislation as lacking an “intelligible principle” only twice throughout history.  Slip Op. 12; see A.L.A Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (striking down delegation to industry associations comprised of private individuals to create legally binding codes of “fair competition”); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking down blanket delegation to President to criminalize the interstate transport of petroleum).[1]  Moreover, where, as here, the delegation at issue concerns power over foreign affairs, courts afford Congress’s decision to vest the executive with regulatory authority “special deference” in order to ensure that the executive has the discretion necessary to regulate foreign relations effectively.  Slip Op. 12. 

With that context in mind, the Second Circuit turned to the AECA, which authorizes the President—“[i]n furtherance of world peace and the security and foreign policy of the United States”—to compile the United States Munitions List (“USML”) . . . comprised of goods . . . that he designates as ‘defense articles,’” and “to promulgate regulations for the import and export of such articles.” Slip Op. 13 (quoting 22 U.S.C. § 2278(a)(1)).  Any good placed on the USML cannot be imported or exported except by license, and the statute imposes criminal penalties on violators. 22 U.S.C. §§ 2278(b)(2) & (c).  Pursuant to this authority, the President—acting through the Department of State—has promulgated twenty categories of “defense articles.”  Slip Op. 14. 

The Second Circuit concluded that the AECA satisfies the intelligible principle standard because it delineates a general policy related to foreign affairs—the “furtherance of world peace and the security and foreign policy of the United States”—and bounds the President’s authority to defining the list of defense-related goods that are subject to the AECA’s criminal penalties.  Slip Op. 14.  The Court previously held another sanctions-related statute—IEEPA—to be constitutional.  See United States v. Dhafir, 461 F.3d 211 (2d Cir. 2006).  Further, the Second Circuit reasoned that the defense goods that the defendant exported or attempted to export were unambiguously included in the USML at the time of his offense conduct, a fact of which the defendant was well aware (notwithstanding his argument that AECA is too long and complex to be a constitutional delegation of authority).  Slip Op. 16.  Joining the other circuits to have considered the issue, the Second Circuit held that there was no constitutional problem with the AECA that undermined the validity of the defendant’s convictions.  Slip Op. 17.

The Second Circuit likewise rejected the defendant’s challenges to the court’s jury instructions and to the use of a court-appointed interpreter at trial.  With respect to the jury instructions challenge, the court held that, under the AECA, a jury must find only that the defendant violated a known legal duty, not that he knew specifically of the prohibited list of “defense articles” or of any other provision of the AECA that imposed a ban on exportation, and that the jury could find the defendant acted knowingly in violation of the AECA if he consciously avoided learning that his conduct was unlawful.  Slip Op. 17–25.  The Court rejected the argument that the heightened definition of willfulness that applies in certain tax and regulatory contexts, see, e.g., Ratzlaf v. United States, 510 U.S. 135 (1994), was not required here.  Rather, the usual standard for willfulness—that the defendant knew that what he was doing was illegal—is all that the government needs to prove.  Again, the Court looked to the context of IEEPA for relevant precedent.  See United States v. Homa Int’l Trading Corp., 387 F.3d 144 (2d Cir. 2004) (holding that the government only needed to prove that the defendant knew that his conduct violated the Iran embargo, not that it violated particular aspects or provisions of that embargo).  Moreover, the willfulness requirement here will prevent any “innocent actors” from being punished for violating AECA. 

Lastly, the Second Circuit determined that the defendant’s right to testify without the use of an interpreter was neither unlimited nor infringed by the fact that the court required the defendant to use a court-appointed interpreter throughout trial, including (as standby) while the defendant testified.  Slip Op. 25–32.  This was an issue of first impression in the Second Circuit.  However, prior decisional law addressing the subject of a defendant’s use of an interpreter led the Court to define a principle that “the district court has discretion to determine whether waiver is reasonable under the circumstances presented” and that the decision by the district court is reviewed on an abuse of discretion standard.  A district court, when faced with a defendant who wishes to waive the use of an interpreter, should “weigh a defendant’s wishes against the need for an interpreter in order to safeguard the defendant’s right to a fair and speedy trial and the public’s right to a comprehensible trial.”  Here, the Second Circuit noted that the court had engaged in an extensive colloquy with the defendant prior to trial and determined that his primary language was Mandarin, and that his competency with English may be strained by the technical nature of some of the trial evidence.  In light of this, the Court’s “compromise solution” of allowing the defendant to testify in English but with a standby interpreter was “appropriate,” and the jury was instructed to draw no adverse inference from this arrangement.  The Court praised the district court judge’s approach as “careful and thoughtful” and protective of the rights of the public and the defendant.


On the question of the constitutionality of the statute, the Court was confronted with a legal rule—the non-delegation doctrine—that has only been invoked selectively and never in the area of national security statutes.  It would have been a surprising result if the Court required Congress to legislate with detailed particularity where the subject to be regulated is one that changes over time due to technology and requires expertise to regulate.  Also, the Court’s prior ruling that IEEPA was a constitutional delegation of authority seems to have forced the conclusion reached here.

With respect to the final issue concerning court interpreters, the Circuit was confronted with a difficult situation.  Whatever rule it fashioned seemed likely to run certain risks of unfairness.  To be sure, a witness who speaks fluent English and who wishes to tell the jury his or her story in English, without the intermediating function of an interpreter, should not be denied this opportunity.  However, it makes sense that the district court would want to have a standby interpreter in case some words were difficult for the witness to understand.  Under the stress of trial testimony, it would not be surprising if this accommodation would help some witnesses, and indeed the defendant benefited from this accommodation here.  The Court of Appeals appeared impressed by the thoughtful way in which the district court handled this situation, and has laid out a road map for other district court judges should this issue arise again.

-By Lauren Capaccio and Harry Sandick

[1] These were both cases in which the Supreme Court rejected certain aspects of President Roosevelt’s New Deal programs—in particular, the National Industrial Recovery Act of 1933—as being in violation of the Constitution.  In the aftermath of these and other decisions striking down aspects of the New Deal, President Roosevelt proposed expanding the Supreme Court in order to undo these and other decisions, a proposal derided as “court-packing.”  When Justice Owen Roberts changed his view on the constitutionality of minimum wage laws and joined the judges who were less inclined to strike down Congressional enactments in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting constitutional challenge to Washington state minimum wage law), some believed at the time this “switch in time saved nine.”  Justice Roberts had previously voted to strike down a minimum wage law in a prior case, Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).  Schechter and Panama Refining, however, remain good law.