## Facts

- Chi Mak, a senior defense-contractor engineer on U.S. Navy projects, received training on export-control compliance.
- The government alleged Mak collected and copied sensitive submarine-related technical documents and prepared them for transfer to contacts in the People’s Republic of China.
- The charged conduct involved attempts to export defense-related technical data without obtaining the export license required under the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR).
- The government’s evidence treated the documents as “technical data” and “defense articles” covered by categories on the United States Munitions List (USML) and outside the “public domain.”
- A jury convicted Mak of conspiracy to violate export controls and attempt to export controlled defense articles/technical data without a license.
- After trial, Mak sought a new trial, citing late disclosure of a government expert and arguing the statutory scheme was unconstitutionally vague; the district court denied relief.
- On appeal, Mak challenged the convictions based on the First, Fifth, and Sixth Amendments and the Ex Post Facto Clause, focusing on jury instructions defining “technical data” and “willfulness,” expert-witness disclosure, and the timing of USML coverage.

## Issues

1. Whether AECA/ITAR, as applied to exporting controlled technical data, impose an unconstitutional prior restraint or are overbroad under the First Amendment.
2. Whether the “technical data” jury instruction violated due process by permitting conviction without requiring proof that the material was not in the public domain.
3. Whether the willfulness instruction and the handling of expert testimony impaired Mak’s right to present a defense under the Sixth Amendment.
4. Whether the convictions violated the Ex Post Facto Clause because the documents were not clearly controlled until after Mak’s conduct.

## Decision

- The Ninth Circuit affirmed the convictions and the denial of a new trial.
- The court held AECA/ITAR, as applied, did not violate the First Amendment because the licensing regime was substantially related to an important governmental interest and regulated export of controlled technical data rather than protected expression.
- The court held the “technical data” instruction satisfied due process because it required the government to prove the documents were not in the public domain.
- The court held the willfulness instruction did not violate the Sixth Amendment because it allowed the jury to decide whether Mak knowingly acted unlawfully under the totality of circumstances; the late expert disclosure did not warrant a new trial on the record presented.
- The court held there was no ex post facto violation because the documents were covered by USML categories at the time of the attempted export; later regulatory clarifications did not retroactively criminalize the conduct.

## Legal Principles

- Export-control restrictions on transmitting USML-controlled technical data to foreign recipients can be consistent with the First Amendment when tied to national security and foreign policy and not aimed at suppressing ideas or public debate.
- ITAR’s exclusion of information in the “public domain” is a key limiting principle; instructions that require the government to prove non-public-domain status avoid due process defects based on overbreadth or vagueness in application.
- Under AECA, “willfulness” requires proof that the defendant knew the export without a license was unlawful; it does not require proof that the defendant knew the precise regulatory classification details of the items or data.
- Ex post facto protections are not violated when existing USML categories already cover the controlled material at the time of the offense, even if later amendments or agency actions clarify coverage.

## Conclusion

The Ninth Circuit sustained AECA/ITAR conspiracy and attempt convictions arising from an attempted export of controlled naval technical data, concluding that the regulatory scheme and jury instructions properly limited liability to non-public-domain USML material, that willfulness was adequately presented to the jury, and that neither the First Amendment nor the Ex Post Facto Clause barred the prosecution.


United States v. Chi Mak, 683 F.3d 1126 (9th Cir. 2012)