United States v. Noshir Gowadia , 760 F.3d 989 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10058
Plaintiff-Appellee,
D.C. No.
v. 1:05-cr-00486-
SOM-KSC-1
NOSHIR S. GOWADIA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawai‘i
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
February 18, 2014—Honolulu, Hawai‘i
Filed July 28, 2014
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge McKeown
2 UNITED STATES V. GOWADIA
SUMMARY*
Criminal Law
The panel affirmed a conviction for violations of the
Arms Export Control Act of 1976, the Espionage Act of
1917, and related provisions on charges that the defendant
unlawfully exported defense services and technical data
related to the design of the B-2 stealth bomber and other
classified government projects to the People’s Republic of
China, and that he disclosed related classified information to
persons in Switzerland, Israel, and Germany.
The defendant argued that evidence obtained during his
interrogations should have been suppressed because of an
unnecessary or unreasonable delay in presentment to a
magistrate judge. The panel rejected the defendant’s
contention that the words “arrest or other detention” in
18 U.S.C. § 3501(c) expand the right to prompt presentment
beyond the contours of Fed. R. Crim. P. 5(a), meaning that
the right to presentment may attach even absent formal arrest.
Assuming without deciding that “other detention” and formal
“arrest” in § 3501(c) have different meanings, the panel held
that the defendant cannot invoke the McNabb-Mallory rule
– which generally renders inadmissible confessions made
during periods of detention that violate the prompt
presentment requirement of Fed. R. Crim. P. 5(a) – because
he was not, during the period in question, either formally
arrested or in “other detention” within the meaning of § 3501.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GOWADIA 3
The panel held that there was no error in the district
court’s jury instructions on the government’s burden with
respect to information in the public domain and basic
marketing information.
COUNSEL
Georgia K. McMillen (argued), Wailuku, Hawai‘i, and
Harlan Y. Kimura, Honolulu, Hawai‘i, for Defendant-
Appellant.
Stephan E. Oestreicher, Jr. (argued), Attorney, Appellate
Section, Criminal Division, United States Department of
Justice, Washington, D.C.; Florence T. Nakakuni, United
States Attorney, Kenneth M. Sorenson, Assistant United
States Attorney, District of Hawai‘i, Honolulu, Hawai‘i;
Mythili Raman, Acting Assistant Attorney General, Denis J.
McInerney, Acting Deputy Assistant Attorney General,
Criminal Division; John P. Carlin, Acting Assistant Attorney
General, Virginia M. Vander Jagt, Robert E. Wallace, Jr.,
Attorneys, National Security Division, United States
Department of Justice, Washington, D.C., for Plaintiff-
Appellee United States.
4 UNITED STATES V. GOWADIA
OPINION
McKEOWN, Circuit Judge:1
Noshir Gowadia appeals his conviction for violations of
the Arms Export Control Act of 1976 [“AECA”], the
Espionage Act of 1917, and related provisions on charges that
he unlawfully exported defense services and technical data
related to the design of the B-2 stealth bomber and other
classified government projects to the People’s Republic of
China, and that he disclosed related classified information to
persons in Switzerland, Israel, and Germany. See 22 U.S.C.
§ 2778; 18 U.S.C. §§ 793(e), 794(a).
At issue is Gowadia’s claim that his right to prompt
presentment before a magistrate judge was triggered before
he was actually arrested, and that the inculpatory statements
he made to federal agents investigating his activities should
have been suppressed. Gowadia also challenges the jury
instructions as unconstitutional on the ground that the
government was wrongly relieved of its burden to prove that
the information Gowadia exported was not in the public
domain and was not “basic marketing information” exempted
from the definition of “technical data” under the AECA.2
1
This opinion is based on the publicly-filed documents and excerpts of
record and does not incorporate or reference any classified material.
2
Gowadia does not appeal his convictions on the money laundering and
tax fraud counts, 18 U.S.C. § 1957 or 26 U.S.C. § 7206(1).
In a letter filed with the court before oral argument, Gowadia
withdrew his challenge to the district court’s determination that he was
“not allowed to challenge the classification decisions of the executive
branch.”
UNITED STATES V. GOWADIA 5
Because these arguments fail as a matter of law, we affirm
Gowadia’s conviction.
BACKGROUND
Gowadia is a naturalized American citizen who worked
for nearly twenty years as an engineer at the Northrop
Corporation on the design of the B-2 stealth bomber and other
highly classified projects. The B-2 became the United
States’s “premier strategic bomber,” in part because it was
designed to be “low-observable.” Gowadia was a lead
engineer of a system designed to enable the B-2 to avoid
detection by suppressing the infrared signature emanating
from the aircraft. The United States maintains a “significant
operational lead” in the manipulation of aircraft signatures.
Because of its strategic importance, information relating to
this system and other stealth technologies is especially tightly
controlled.
Shortly after leaving Northrop, Gowadia started a
business, N.S. Gowadia, Inc. (“NSGI”), to provide consulting
services to the aerospace engineering industry. At NSGI,
Gowadia developed and marketed a system called AIRSS
(Advanced Infrared Suppression System), which, like the
systems he designed at Northrop, was intended to reduce the
infrared signature of aircraft.
Through NSGI, Gowadia sent a series of letters and
emails to three foreign individuals revealing information that
he later admitted was classified. In October 2002, for
example, Gowadia sent a letter to an official at the Swiss
Ministry of Defense detailing Gowadia’s success in
suppressing the infrared signature of the B-2 and offering his
services to help reduce the signature of Swiss military
6 UNITED STATES V. GOWADIA
helicopters. He sent similar communications to individuals
working for defense contractors in Germany and Israel. None
of the individuals Gowadia contacted was authorized to
receive classified information.
Around the same time, Gowadia began a working
relationship with the Chinese government. Gowadia
exchanged a series of emails with a Chinese operative, and
agreed to brief Chinese officials on aircraft “propulsion” and
“survivability” and to design, for a fee, certain aircraft parts.
Between 2003 and 2005, Gowadia made six trips to China,
paid for by the Chinese government, often entering and
exiting China without a visa or stamp in his passport and
communicating while there via pseudonymous email
accounts.
Among other things, Gowadia gave Chinese officials a
presentation and a computer file that analyzed how a Chinese
cruise missile, if modified with Gowadia’s designs, would
perform against a United States AIM-9 class missile. The
Chinese government paid Gowadia more than $100,000 for
his work. Gowadia would later admit that he “shared military
secrets . . . [and] technical knowledge” with China that he
“had acquired over many years working with US systems[]
like [the] B-2,” and would surmise that his activities
amounted to “espionage and treason.”
The United States government began to suspect Gowadia
of unlawful activities, and secured a search warrant for
Gowadia’s house. Federal agents arrived at Gowadia’s house
in Maui on October 13, 2005, executed the search warrant,
and asked Gowadia whether there was a private place where
they could talk. After adjourning to the crafts room, they
reviewed an Advice of Rights form with Gowadia, informing
UNITED STATES V. GOWADIA 7
him of his rights, among others, to seek the advice of counsel
and to terminate the interview at any time, and advised him
on more than one occasion that he was not under arrest and
was free to leave. Gowadia signed the form, and the agents
then interviewed him for roughly six hours. The agents
completed their search late that evening and seized
computers, papers, his passport, foreign currency, and other
materials. Before departing, the agents and Gowadia agreed
to meet the following day.
The group met at a coffee shop the next day but, because
it was impossible to discuss classified information there, the
agents asked Gowadia if there was another location where
they could talk. Gowadia did not suggest an alternative site,
and the agents proposed continuing their conversation at the
Maui County Police Department. Gowadia agreed to
accompany them in his own vehicle. After Gowadia signed
another Advice of Rights form, he and the agents spoke for
about six and a half hours. During this session, Gowadia
stated that he had retained classified material and used it for
business purposes3 and that he had disclosed classified
information to foreign individuals and governments,
including China. In a pattern that would continue throughout
the following several days of interrogation, Gowadia
“volunteered to write down” detailed handwritten statements
describing his activities. Gowadia agreed to continue the
conversation at another time and returned home.
3
Among the classified documents seized from Gowadia were classified
charts on signature suppression, an altered document from which he had
cut the word “secret,” and other documents that he had “cut up and
modified” to conceal their source.
8 UNITED STATES V. GOWADIA
The next day, October 15, 2005, Agent Mohajerin
contacted Gowadia and requested that he “consider flying to
Honolulu for further discussions” with federal agents at the
government’s expense. Gowadia agreed to do so and arrived
in Honolulu on October 16. The agents interviewed Gowadia
in seven sessions between Monday, October 17, and Monday,
October 24, at the FBI office in Honolulu. Gowadia signed an
Advice of Rights form before each interrogation session. The
seven Honolulu sessions lasted between 6.5 and 7.5 hours
each day. During these sessions, Gowadia wrote out copious
notes—the record contains seventy-odd pages of them—for
the agents, detailing his activities and his motivations, and
admitting wrongdoing. Gowadia also acknowledged on each
occasion that he was free to leave.
On Wednesday morning, October 26, Gowadia arrived by
taxi at the Honolulu Federal Building. Federal agents met him
there and escorted him to the FBI office, where he was
arrested pursuant to a warrant obtained earlier in the day.
Gowadia was assigned an attorney from the Federal Public
Defender’s office and appeared before a magistrate judge
later that day.
Following a 41-day jury trial, Gowadia was convicted on
fourteen counts related to charges that, in the course of
conducting his business activities at NSGI, he disclosed
protected national security information to foreign
governments and individuals. Specifically, Gowadia was
convicted of (a) conspiring to violate, and violating, the
AECA and its implementing regulations4 by exporting
defense services and technical data to China without a license
4
The International Traffic in Arms Regulations, 22 C.F.R. §§ 120 et
seq., and the United States Munitions List, 22 C.F.R. §§ 121.1 et seq.
UNITED STATES V. GOWADIA 9
(Counts 1 and 2); (b) violating the Espionage Act, 18 U.S.C.
§§ 793(e) and 794(a), and aiding and abetting violations of
that Act, by giving the Chinese a presentation and a computer
file that, among others, predicted how well China’s cruise
missile would perform against a counter-attacking American
missile when fitted with the infrared signature-reducing
exhaust nozzle Gowadia had designed (Counts 6 and 8);
(c) violating the Espionage Act and aiding and abetting
violations of that Act by sending classified infrared-reduction
information about the B-2 bomber to persons not authorized
to receive it in Switzerland, Israel, and Germany (Counts
9–11); (d) violating the AECA and its implementing
regulations and aiding and abetting AECA violations by
wilfully exporting defense services and technical data to these
three countries without a license (Counts 12–14); (e) retaining
classified documents without authorization (Count 15);
(f) laundering money (Count 19); and (g) filing false tax
returns (Counts 20–21). Gowadia was sentenced to thirty-two
years’ imprisonment.
ANALYSIS
I. PRESENTMENT: FEDERAL RULE OF CRIMINAL
PROCEDURE 5(a)
We first consider whether evidence obtained during
Gowadia’s repeated interrogations should have been
suppressed because of an unnecessary or unreasonable delay
in presentment.5
5
We note that Gowadia seeks only to suppress his statements as a
consequence of a claimed delay in presentment and does not contend
either that they were made involuntarily or that they should be suppressed
under Miranda v. Arizona, 384 U.S. 436 (1966).
10 UNITED STATES V. GOWADIA
The right to prompt presentment, in its contemporary
form, is found in Federal Rule of Criminal Procedure 5(a),
which provides that “[a] person making an arrest within the
United States must take the defendant without unnecessary
delay before a magistrate judge.” FED. R. CRIM. P. 5(a)(1)(A).
Where the right to prompt presentment has been violated, two
sources—18 U.S.C. § 3501(c) and what we have termed the
McNabb-Mallory rule—govern the admissibility of any
resulting confessions. See Corley v. United States, 556 U.S.
303, 322 (2009).
Some history is helpful as context for the relationship
between the right to presentment and the remedy of
suppression. See id. at 306–10. At common law, the
presentment requirement “tended to prevent secret detention
and served to inform a suspect of the charges against him.”
Id. at 306. In McNabb v. United States, 318 U.S. 332 (1943),
the suspects were arrested and then interrogated for several
hours before being brought before a magistrate. Id. at 334–42.
The Court held that “confessions [are] inadmissible when
obtained during unreasonable presentment delay.” Corley,
556 U.S. at 307 (explaining the holding of McNabb). Rule
5(a) was adopted following McNabb, “pull[ing] the several
statutory presentment provisions together in one place.” Id. In
Mallory v. United States, 354 U.S. 449 (1957), the Court
applied Rule 5(a) and held that a confession given seven
hours after an arrest was inadmissible for “extended delay.”
Id. at 455. “Thus,” as the Court explained in Corley, “the rule
known simply as McNabb-Mallory ‘generally render[s]
inadmissible confessions made during periods of detention
that violat[e] the prompt presentment requirement of Rule
5(a).’” 556 U.S. at 309 (quoting United States v. Alvarez-
Sanchez, 511 U.S. 350, 354 (1994)) (alterations in original).
UNITED STATES V. GOWADIA 11
In part to address concerns with the broad application of
McNabb-Mallory, Congress enacted 18 U.S.C. § 3501(c),
which establishes a six-hour safe harbor for voluntary
confessions.6 Section 3501(c) provides that:
. . . a confession made or given by a
[defendant] . . . while such person was under
arrest or other detention in the custody of any
law-enforcement officer or law-enforcement
agency, shall not be inadmissible solely
because of delay in bringing such person
before a magistrate judge or other officer . . .
if such confession is found by the trial judge
to have been made voluntarily and if the
weight to be given the confession is left to the
jury and if such confession was made or given
by such person within six hours immediately
following his arrest or other detention. . . .
18 U.S.C. § 3501(c).
The rule as it stands today is relatively simple to apply.
When a criminal defendant brings a suppression motion based
on McNabb-Mallory, the district court looks to see whether
the confession was obtained within six hours of arrest. If so,
McNabb-Mallory does not bar its admission. (Of course, the
confession could be inadmissible for other reasons.) If,
however, the “confession occurred before presentment and
beyond six hours, . . . the court must decide whether delaying
6
“Subsections (a) and (b) of § 3501 were meant to eliminate Miranda.”
Corley, 556 U.S. at 309. The Court later held that Congress may not
legislatively supersede Miranda. Dickerson v. United States, 530 U.S.
428, 444 (2000).
12 UNITED STATES V. GOWADIA
that long was unreasonable or unnecessary . . . and if it was,
the confession is to be suppressed.” Corley, 556 U.S. at 322.
As the Court explained in Corley, the starting point for
claims under § 3501 is “whether the defendant confessed
within six hours of arrest.” Id. (emphasis added). In other
words, “[section] 3501 modified McNabb-Mallory without
supplanting it.” Id. The language and analysis of the section
focus on the time of arrest, a point that makes sense because
Rule 5(a) applies only in situations involving formal arrest on
specific charges. FED. R. CRIM. P. 5(a)(1) (“Appearance Upon
an Arrest”). By its own terms, the Rule governs the conduct
of “person[s] making an arrest,” and dictates that those
persons bring “the defendant” before a magistrate judge. FED.
R. CRIM. P. 5(a)(1)(A). Rule 5(a) interacts with subsections
5(d) and 5(e), which specify that the magistrate judge must
convey certain information to the “defendant”: the “complaint
against [him],” for instance, and the right to counsel. FED. R.
CRIM. P. 5(d); 5(e) (citing Rule 58(b)(2)). Without specific
pending criminal charges, the directives of Rules 5(d) and
5(e) would make no sense; the magistrate would have nothing
to tell a person not yet accused or arrested. FED. R. CRIM. P.
5(d); 5(e); see also BLACK’S LAW DICTIONARY 482 (9th ed.
2009) (defining a “defendant” as the “accused in a criminal
proceeding”).
Gowadia contends that the words “arrest or other
detention” in § 3501(c) expand the right to prompt
presentment beyond the contours of Rule 5(a), meaning that
the right to presentment may attach even absent formal arrest.
Gowadia claims that the right attached in his case because he
was under detention during the interrogation and so his
statements are inadmissible under § 3501(c). We reject this
formulation.
UNITED STATES V. GOWADIA 13
Section 3501(c) and McNabb-Mallory do not expand the
right to presentment established by Rule 5(a), but instead
provide that “the remedial framework for . . . violations of
th[at] right” is suppression. United States v. McDowell,
687 F.3d 904, 910 (7th Cir. 2012). Section 3501(c) was
intended to limit McNabb-Mallory, not to expand it. See
Corley, 556 U.S. at 318 (noting that “[i]n its original draft,
subsection (c) would indeed have done away with McNabb-
Mallory completely”). Reading § 3501(c) to expand the
presentment clause to persons not covered by Rule 5(a)
would contravene this intent.
The Court’s analysis in Alvarez-Sanchez underscores our
interpretation of the interplay between Rule 5(a) and
§ 3501(c): the “terms of [§ 3501(c)] can apply only when
there is some ‘delay’ in presentment,” and “there can be no
‘delay’ in bringing a person before a federal magistrate until,
at a minimum, there is some obligation to bring the person
before such a judicial officer in the first place.” 511 U.S. at
357–58. Looking to Rule 5(a), the Court held that the
obligation to “present a person to a federal magistrate does
not arise until the person has been arrested for a federal
offense,” id. at 358 (citing FED. R. CRIM. P. 5(a)), or
“detained for a federal crime,” id. (emphasis added). We read
this latter mention of detention so that it is consistent with the
remainder of the paragraph: the only persons required to be
brought before the magistrate judge are those “charged with
offenses against the laws of the United States,” whether
arrested or detained. 18 U.S.C. § 3501(c). The words
“detained” or “detention,” as they are used in § 3501, cannot
be understood without this context. Cf. FED. R. CRIM. P. 5(d)
(requiring that the magistrate judge inform a defendant
charged with a felony of “the complaint against [him]”); 5(e)
14 UNITED STATES V. GOWADIA
(citing Rule 58(b)(2)). In short, the Court ties § 3501 to Rule 5(a).
How and why the words “other detention” found their
way into § 3501(c) is a mystery not solved by reading the
case law or statutory history. Where, in cases dealing with the
presentment requirement, the Court has referred to both arrest
and detention, it has specifically tethered its holding to Rule
5(a), which requires an arrest. See, e.g., Alvarez-Sanchez,
511 U.S. at 358. The words “arrest” and “detention” could be,
in this context, either duplicative or independent. To the
extent that the words have essentially the same meaning, this
superfluity is not fatal. As Justice Souter once noted, even
where Congress “indulged in a little redundancy,” such
“inelegance may be forgiven,” because “Congress could
sensibly have seen some practical value in the redundancy.”
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 445–46
(1995) (Souter, J., dissenting). Alternatively, Congress may
have wanted to preserve the “traditional rule that a confession
will be suppressed” in the “presumably rare scenario of
improper collaboration or a working arrangement between
local and federal law enforcement” hoping to skirt the
presentment requirement by arresting a person on state, but
not federal, charges, United States v. Rowe, 92 F.3d 928, 933
n.2 (9th Cir. 1996) (quoting Alvarez-Sanchez, 511 U.S. at
359) (internal quotation marks omitted), or to preserve a
remedy for the extreme scenario, not present here, in which
the detention is legally tantamount to an arrest, see, e.g.,
United States v. Robinson, 439 F.2d 553, 563–64 (D.C. Cir.
1970) (holding that a confession should be suppressed where
an institutionalized mental patient was detained for eight
months, without access to counsel, because “even if not
technically arrested, he was as though arrested”).
UNITED STATES V. GOWADIA 15
We reserve judgment on whether the term “other
detention” might have independent meaning from “arrest”
upon formal charges in an extraordinary situation. For
purposes of this appeal, we assume without deciding that the
two terms have different meanings. We need not resolve this
potentially far-reaching question here. Instead, we hold that
Gowadia cannot invoke McNabb-Mallory because he was
not, during the period in question, either formally arrested or
in “other detention” within the meaning of § 3501. The
interviews between October 13 and 25 did not amount to
“detention.”
Gowadia voluntarily accompanied the agents to each
interview, first to the craft room, then to the coffee shop, then
to the police station in Maui, and then to Honolulu.7 He was
told, at his house, that he was free to leave, and during each
interview, was told that he was “free to leave,” that he could
“terminate” the interviews, that he was “not under arrest.” No
restrictions were placed on his movement, as he
acknowledged, and he was never handcuffed. Gowadia did
terminate interviews when he was tired, and at the end of
each day in Honolulu he left the FBI offices and returned to
his hotel room. (At one point, when he complained about the
quality of his hotel, the government made arrangements to
relocate him to a nicer hotel.)
Though not dispositive, it is notable that Gowadia, who
was given fresh Miranda warnings before each session, not
7
Gowadia challenges the district court’s factual findings pertaining to
his motion to suppress. Reviewing for clear error, United States v.
Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006), we affirm the district
court’s factual findings, which are amply supported by the record
developed at the suppression hearing.
16 UNITED STATES V. GOWADIA
only willingly but enthusiastically shared information with
authorities, writing out extensive notes each day—some
seventy pages in total—describing his activities in pinpoint
detail. He drew diagrams for agents, relayed the contents of
conversations and travels, and reflected daily about his
wrongdoings. He ended his notes with assurances that they
had been written voluntarily, and that he had been informed
of his rights.8 We agree with the district court that Gowadia
was neither arrested nor under “other detention.” Whatever
“other detention” may encompass, it does not include the
scenario described by these facts. Gowadia’s inculpatory
statements were properly admitted.
II. JURY INSTRUCTIONS
We next address Gowadia’s challenge that certain jury
instructions were deficient because they relieved the
government of its burden to prove that the “defense services”
and “technical data” Gowadia exported were not in the public
domain, and because they omitted the government’s burden
to prove that the technical data at issue were not basic
marketing information.
Although Gowadia’s counsel affirmatively agreed to the
instructions, we give Gowadia the benefit of the doubt and
8
He wrote, for example: “On reflection what I did was wrong . . . . I
made the above statements so that I can correct the harm I have caused &
move on to the next phase of my life, which is retirement. The agents have
made no threats or promises about the outcome. I acknowledge that I
would be held accountable. I was explained that I could call a lawyer, stop
talking or leave.”
UNITED STATES V. GOWADIA 17
review for plain error.9 United States v. Perez, 116 F.3d 840,
846 (9th Cir. 1997) (distinguishing forfeiture from waiver).
There was no error here, let alone plain error, because the
court properly instructed the jury on the government’s burden
with respect to information in the public domain and “basic
marketing information.” Accordingly, we need not reach the
other prongs of the plain error test. See generally United
States v. Olano, 507 U.S. 725, 732 (1993).
The substantive counts under AECA were counts 2 and
12–14. As to Count 2, the instructions specified that the
government was required to prove beyond a reasonable doubt
that “the defense services and technical data were not in the
public domain,” and as to Counts 12, 13, and 14, that “the
technical data was [sic] not in the public domain.” The
instructions defined “public domain” at length. The
instructions specified that the AECA “includes and
incorporates the International Traffic in Arms Regulations,”
and that those regulations define “defense article” to include
“technical data” but specifically to exclude “basic marketing
information,”10 and further define “technical data” itself to
exclude “basic marketing information.”
In United States v. Chi Mak, 683 F.3d 1126 (9th Cir.
2012), we upheld instructions that were effectively the same
as those given here. In that case, the defendant argued that the
9
After multiple exchanges, instructions 2, 12, 13, and 14, the
instructions now challenged by Gowadia, were characterized by the
district court as agreed-upon instructions. Gowadia did not object.
10
The definition of “public domain” appeared between the descriptions
of Count 2 and Counts 12, 13, and 14, which immediately followed. The
sentences defining “technical data” to exclude “basic marketing
information” preceded the descriptions of the individual counts.
18 UNITED STATES V. GOWADIA
jury instructions “relieved the Government of its burden to
prove the documents were not in the public domain,” because
one of the instructions could have been read to say that
certain information that Mak allegedly exported was
“technical data” as a matter of law.11 Id. at 1136–37. The
challenge was unsuccessful because the district court
“specifically instructed the jury that any information in the
public domain cannot be ‘technical data.’” Id. at 1137.
Here, as in Chi Mak, the district court “specifically
instructed the jury” that the government had to prove that any
defense services or technical data “were not in the public
domain,” and that defense services and technical data by
definition excluded “basic marketing information.” It is not
important, under Chi Mak, that the “basic marketing
information” caveat in Gowadia’s case appeared in
instructions separate from the instructions listing the elements
of the counts in question. In Chi Mak, the definition of
11
The instruction in Chi Mak read as follows (text in italics is identical):
All technical data is subject to export control.
Technical data is information required for the design,
development, production, manufacture, assembly,
operation, testing, or modification of defense articles.
Technical data does not include information in the
public domain.
You are instructed that the information in the Solid
State document and the Q.E.D. document is required
for the design, development, production, manufacture,
assembly, operation, testing, or modification of defense
articles. You must accept this fact as true, regardless of
whether you heard any witness testify to the contrary.
683 F.3d at 1132 (emphasis added).
UNITED STATES V. GOWADIA 19
“technical data” and the caveat regarding information “in the
public domain” appeared in an instruction distinct from the
instruction laying out the elements of the offense. See id. at
1132. The “public domain” instruction in Gowadia’s case
was arguably even clearer than the one approved in Chi Mak,
since it appeared in the lists of elements for the various
charges.
Reviewing the jury instructions “as a whole,” United
States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999), we
hold that there was no error as to the “public domain” or
“basic marketing information” instructions.
Gowadia’s conviction is AFFIRMED.