United States of America v.  Eugene You-Tsai Hsu

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4859 
EUGENE YOU-TSAI HSU,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4860 
DAVID TZUWEI YANG,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-01-485-AMD)
Argued: January 23, 2004
Decided: April 14, 2004
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Widener and Judge Gregory joined.

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COUNSEL
ARGUED: Richard M. Steingard, Los Angeles, California, for
Appellant Yang. Richard Henry Gordin, TIGHE, PATTON, ARM-
STRONG, TEASDALE, P.L.L.C., Washington, D.C., for Appellant
Hsu. Kathleen O’Connell Gavin, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: Neal Goldfarb,
TIGHE, PATTON, ARMSTRONG, TEASDALE, P.L.L.C., Wash-
ington, D.C., for Appellant Hsu. Thomas M. DiBiagio, United States
Attorney, Baltimore, Maryland, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Eugene You-Tsai Hsu and David Tzuwei Yang
of violations of the Arms Export Control Act and related offenses. On
appeal, Hsu and Yang principally challenge their convictions on the
ground that the Arms Export Control Act is unconstitutionally vague
as applied to them and that the district court erred in refusing to
instruct the jury on entrapment. Finding these and their other conten-
tions to be without merit, we affirm.
I.
A.
The Arms Export Control Act ("AECA"), 22 U.S.C. § 2778 (2000),
regulates the export of military products. The AECA authorizes the
President to "designate those items which shall be considered as
defense articles," and "promulgate regulations for the import and
export of such articles . . . ." § 2778(a)(1).
The President has delegated his rulemaking authority to the Secre-
tary of State, see Exec. Order No. 11,958, 42 Fed. Reg. 4311 (Jan. 24,
1977), who has promulgated the International Traffic in Arms Regu-
lations ("ITAR"), 22 C.F.R. §§ 120.1-130.17 (2003). These regula-
tions contain the United States Munitions List ("Munitions List"), a
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categorical list of "defense articles" that cannot be exported without
first obtaining a license from the Department of State. See
§ 2778(b)(2); 22 C.F.R. §§ 120.6, 121.1, 123.1(a).
Of particular relevance here, the Munitions List includes military
encryption devices, 22 C.F.R. § 121.1, Category XIII(b), such as the
KIV-7HS ("KIV") encryption unit manufactured by Mykotronx, Inc.
Because of the United States’ arms embargo with the People’s Repub-
lic of China, the State Department will not approve a license to export
any Munitions List items, including KIV units, to that country. 22
C.F.R. § 126.1(a) (2003).
The AECA imposes both civil and criminal penalties for its viola-
tion. § 2778(c), (e). A criminal sanction requires that a person "will-
fully" violate the statute or its regulations. § 2778(c).
B.
On May 1, 2001, at the request of a business associate in China,
Eugene You-Tsai Hsu telephoned Mykotronx seeking information on
the company’s KIV encryption device. A Mykotronx employee
referred Hsu to "Daniel Stevenson," who was described to Hsu as a
sales representative working for "Stellar International," a company
purportedly selling Mykotronx products. Unbeknownst to Hsu, "Dan-
iel Stevenson" was in fact Dan Supnick, an undercover agent with the
United States Customs Office, and "Stellar International" was an
undercover company. It is undisputed that at the time Hsu made this
initial call to Mykotronx, he did not know that exporting the encryp-
tion device without a license was illegal.
The following day, Hsu spoke with Agent Supnick (hereinafter
"Stevenson") and requested information on the KIV unit; Hsu
explained that he was planning on exporting it to a customer in China.
(Stevenson recorded all of the conversations discussed herein, and the
government played those tapes for the jury.) Stevenson immediately
informed Hsu that the device was on the Munitions List; that it
required a license for export; that no license would be approved if the
end-user was in China; and that export of the device without the
required license violated the law. After making these disclosures, Ste-
venson suggested "off the record," that he would still be willing to
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"make the sale" and "work with" Hsu if Hsu had "a way to get [the
equipment] out" of the country. When Hsu stated that he did not want
to do anything illegal, Stevenson responded, then "I don’t think it’s
worth . . . send[ing] you any information, ‘cause it can’t go legally
to China." Nevertheless, Hsu insisted that Stevenson send him a bro-
chure on the KIV unit, which Stevenson did.
More than two weeks passed without any interim contact between
the parties. Hsu then telephoned Stevenson to discuss further the pur-
chase and export of the encryption device. This phone call marked the
beginning of a negotiation process spanning roughly the next three
months. During this time, Stevenson repeatedly told Hsu that ship-
ment of the KIV encryption device without a license violated the law
and clarified that the shipment would still be illegal even if the
devices were sent to Singapore or another country if the end-user
remained in China. Hsu never stated that he did not want to go for-
ward with the transaction.
At first these negotiations involved only three parties — Stevenson,
Hsu, and Wing Chung Ho (an indicted co-conspirator residing in Sin-
gapore). But in June, Stevenson informed Hsu and Ho that although
he would ship the units domestically, he would not personally export
them, and so Hsu and Ho would have to find someone Stevenson
could trust to actually export the units. Eventually, Ho informed Ste-
venson that David Tzuwei Yang, a freight forwarder residing in Cali-
fornia, would serve as that person.
Stevenson initially spoke with Yang on July 25, 2001, and contin-
ued to discuss the illegal exportation with him numerous times over
the following month. During the course of these conversations, Ste-
venson repeatedly informed Yang that export of the KIV units
required a license and that a license would not be approved if the end-
user was in China, and even expressly stated that export of a unit
without the required license violated the law. Yang displayed some
initial reluctance but eventually agreed that Stevenson would ship
Yang two encryption devices, Yang would export the devices to Ho
in Singapore, and Ho would ultimately send them to the end-user in
China. Stevenson shipped the devices to Yang on August 27, and the
following day, after Yang received the equipment, authorities arrested
Hsu and Yang.
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A jury convicted Hsu and Yang (collectively "Defendants") of two
criminal offenses: (1) conspiracy to export Munitions List articles
without a license in violation of the AECA or to make materially false
statements to the United States Customs Service in violation of 18
U.S.C. § 371 (2000), and (2) attempt to export items covered by the
Munitions List without a license, in violation of the AECA.
II.
Defendants first contend that the AECA and its implementing regu-
lations are unconstitutionally vague as applied to them. In particular,
they argue that the regulations fail to provide sufficient clarity as to
what encryption devices qualify as "military," and so are included on
the Munitions List. Id. We review challenges to the constitutionality
of a statute or regulation de novo. United States v. Sun, 278 F.3d 302,
308-09 (4th Cir. 2002).
"Due process requires that a criminal statute provide adequate
notice to a person of ordinary intelligence that his contemplated con-
duct is illegal, for no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed."
Buckley v. Valeo, 424 U.S. 1, 77 (1976) (per curiam) (internal quota-
tion marks and citations omitted). But "where, as here, a criminal stat-
ute regulates economic activity, it generally is subject to a less strict
vagueness test." Sun, 278 F.3d at 309 (internal quotation marks and
citation omitted).
Moreover, because Defendants do not maintain that the AECA or
its implementing regulations implicate First Amendment freedoms,
we must examine their vagueness challenge "in light of the facts of
the case at hand." Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 n.7 (1982) (internal quotation marks
and citations omitted). Thus, the question of whether the AECA or its
regulations suffice to provide a hypothetical defendant fair notice as
to what encryption devices qualify as "military," and so require an
export license, is not before us. Rather, we need only determine
whether the statute and regulations were vague as applied to these
particular defendants — i.e., whether Hsu and Yang in fact had fair
notice that the statute and regulations proscribed their conduct. We
have no difficulty concluding that they did.
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The particular regulation upon which Defendants base their vague-
ness challenge states that the Munitions List includes "cryptographic
devices . . . specifically designed or modified for military purposes."
22 C.F.R. § 121.1, Category XIII(b). To qualify as a "military"
encryption device, a product must be "specifically designed, devel-
oped, configured, adapted, or modified for a military application,"
and (1) have no "predominant civil application[ ]" or "performance
equivalent" used for civil applications, or (2) have "significant mili-
tary or intelligence applicability such that control under this subchap-
ter is necessary." 22 C.F.R. § 120.3. Defendants contend that these
regulations "do not make clear what encryption products are covered
by the Munitions List." Brief of Appellants at 26.
But the government charged, and the jury convicted, Defendants of
"knowingly and willfully" violating the AECA when they acted to
export the encryption devices. It is well-established that such a
"scienter requirement may mitigate a law’s vagueness, especially with
respect to the adequacy of notice to the complainant that his conduct
is proscribed." Hoffman Estates, 455 U.S. at 499; accord Sun, 278
F.3d at 309. After all, under the specific intent required as an element
of this offense, the government must prove that a defendant intended
to violate the law to obtain a conviction, thereby eliminating any gen-
uine risk of holding a person "criminally responsible for conduct
which he could not reasonably understand to be proscribed." Sun, 278
F.3d at 309; accord Screws v. United States, 325 U.S. 91, 103-04
(1945).
Not surprisingly, several courts have recognized the importance of
the AECA’s "knowing and willful" scienter requirement in denying
as-applied vagueness challenges to the Act. See United States v. Lee,
183 F.3d 1029, 1032-33 (9th Cir. 1999) (stating that inclusion of a
scienter requirement in the AECA "protects the innocent exporter
who might accidentally and unknowingly export a proscribed compo-
nent or part whose military use might not be apparent"); see also
United States v. Swarovski, 592 F.2d 131, 132 (2d Cir. 1979) (noting,
under predecessor statute, 22 U.S.C. § 1934 (1970), that defendant’s
vagueness argument "comes with little grace from one who was fully
cognizant of the wrongfulness of his acts"). In fact, recently we
expressly rejected an as-applied vagueness challenge to the AECA
and its implementing regulations. Sun, 278 F.3d at 309-10. We
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explained that because the AECA permits an arrest only if an individ-
ual acts "with the requisite criminal intent," it cannot be deemed con-
stitutionally vague as-applied. Id. at 309.1
Nor do we find persuasive Defendants’ argument that vagueness
problems persist here because an undercover agent posing as a sales
representative, rather than the government qua government, informed
them of the illegality of the proposed exportation. Fair notice require-
ments are simply not implicated when a defendant engages in conduct
knowing it is illegal, regardless of how he procured this information.
See United States v. Malsom, 779 F.2d 1228, 1234-35 (7th Cir. 1985)
(finding specific intent when an export shipper and a friend warned
defendant that an export license was required); see also Swarovski,
592 F.2d at 132-33 (finding no constitutional vagueness when manu-
facturer provided notice). Here, the jury was required to determine not
whether Defendants were "informed" that the export was illegal, but
whether they subjectively "knew" they were violating the law, either
by crediting Stevenson’s protestations of illegality or by obtaining
this knowledge from another source. The jury made this finding —
that Defendants acted "willfully" — thus ensuring Defendants had
this requisite knowledge.2
1Defendants attempt to distinguish Sun by focusing on factual differ-
ences between it and the case at hand. Specifically, they argue that,
unlike the defendants in Sun, they were not experienced "munitions
exporters" and the encryption devices here, unlike the missile and bomb
parts at issue in Sun, are not exclusively designed for military use. Brief
of Appellants at 35. These factual differences, however, do not change
the legal analysis. The reasoning in Sun — that requiring the jury to find
a defendant acted "willfully" necessarily leaves "innocent" exporters out-
side the statute’s scope and so vitiates any vagueness concerns — applies
equally here.
2Defendants unpersuasively argue that the scienter requirement did not
alleviate fair notice concerns in this case because of assertedly inade-
quate jury instructions. They contend that the instructions as to "willful-
ness" were deficient because the "jury was not instructed that the
government had to show that the defendants knew that the KIV-7HS was
covered by the Munitions List . . . [or that] the device was designed for
military use." Brief of Appellants at 31. Whatever specificity on "willful-
ness" is required, it is clear that this extremely particularized definition
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Accordingly, the AECA and its implementing regulations are not
unconstitutionally vague as applied to Defendants.
III.
Defendants next contend that the district court erred in refusing to
instruct the jury on entrapment. We review the district court’s refusal
to give an entrapment instruction de novo. United States v. Phan, 121
F.3d 149, 154 (4th Cir. 1997).
A.
An entrapment defense consists of "two related elements": (1) gov-
ernment inducement to commit a crime and (2) the lack of predisposi-
tion on the part of the defendant to engage in criminal conduct.
Mathews v. United States, 485 U.S. 58, 62-63 (1988). The first ele-
ment, "inducement," requires more than mere solicitation by the gov-
ernment, United States v. Velasquez, 802 F.2d 104, 106 (4th Cir.
1986); "inducement" is a "term of art" necessitating "government
overreaching and conduct sufficiently excessive to implant a criminal
design in the mind of an otherwise innocent party." United States v.
Daniel, 3 F.3d 775, 778 (4th Cir. 1993); see also United States v.
Gendron, 18 F.3d 955, 961-62 (1st Cir. 1994) (describing examples
of government overreaching constituting inducement). The second
element, "predisposition," refers to "the defendant’s state of mind
finds no support in the case law. Indeed, at least one court has expressly
rejected it. See United States v. Murphy, 852 F.2d 1, 7 & n.6 (1st Cir.
1988). This conclusion also forecloses Yang’s related contention that the
government presented insufficient evidence from which a jury could find
that he acted "willfully" because of the asserted lack of evidence that
Yang knew "the KIV units were on the Munitions List" or "military
items." Brief of Appellants at 37. Yang additionally contends that the
Government offered insufficient evidence "that what [the Defendants]
were proposing to do was illegal." Id. That argument is equally meritless.
In fact, the record demonstrates that Stevenson not only expressly told
Yang "that what they were proposing to do was illegal," but also repeat-
edly reminded him that a license was required to export the KIV units,
and that the required license could not be procured because the end-user
was in China.
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before government agents make any suggestion that he shall commit
a crime," United States v. Osborne, 935 F.2d 32, 37 (4th Cir. 1991);
the government does not entrap a defendant, even if he does not spe-
cifically contemplate the criminal conduct prior to this "suggestion,"
if "his decision to commit the crime is the product of his own prefer-
ence and not the product of government persuasion." Id. at 38.
Generally entrapment presents a jury question, Mathews, 485 U.S.
at 62, but this is not invariably the case. Osborne, 935 F.2d at 38.
Because entrapment is an affirmative defense, a defendant first bears
the "initial burden" of producing "more than a scintilla of evidence of
entrapment." Phan, 121 F.3d at 154. And a defendant is only "entitled
to an entrapment instruction [when] there is sufficient evidence from
which a reasonable jury could find entrapment." Mathews, 485 U.S.
at 62. Hence, a "court may find as a matter of law that no entrapment
existed, when there is no evidence in the record that, if believed by
the jury, would show that the government’s conduct created a sub-
stantial risk that the offense would be committed by a person other
than one ready and willing to commit it." Osborne, 935 F.2d at 38.
Defendants acknowledge their initial burden to "show that there is
more than a scintilla of evidence that the government induced [the]m
to commit the crime," but assert that they need not "point to evidence
on the issue of predisposition." Brief of Appellants at 38, 44. Focus-
ing solely on the inducement element, they contend that a defendant
"may carry [t]his burden on the inducement issue" by producing evi-
dence of: (1) government solicitation plus "unreadiness" on the defen-
dant’s part or (2) "government solicitation plus actual persuasion or
other pressure by the government." Id. at 39. In so arguing, Defen-
dants fundamentally misunderstand our precedents. Actually, only
through the second method can a defendant carry his burden on the
inducement issue; he must offer more than a scintilla of evidence of
solicitation, plus "actual persuasion or other pressure by the govern-
ment."
In support of their contrary contention, Defendants seize on dicta
from United States v. DeVore, 423 F.2d 1069, 1071 (4th Cir. 1970).
There, after correctly explaining that "a showing of solicitation alone"
would not suffice "to place the burden of going forward" on the gov-
ernment, we remarked that a defendant "must also produce some evi-
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dence of unreadiness on his part, or of persuasion by the agent." Id.3
Although we have repeated this dicta on occasion, see Osborne, 935
F.3d at 39; United States v. Tindle, 808 F.2d 319, 329 (4th Cir. 1986),
we have never so held. On the contrary, when a defendant offered
some evidence of his "unreadiness" and government "solicitation,"
but failed to offer any evidence of government overreaching accom-
panying its solicitation, we have held, albeit without discussion of the
"unreadiness" element, that the defendant did not warrant an entrap-
ment instruction. Velasquez, 802 F.2d at 106 (finding that although
defendants offered evidence that "government cooperator[ ] tele-
phoned defendants over thirty times to ‘suggest’" that defendants "ac-
3DeVore derived this dicta from Kadis v. United States, 373 F.2d 370,
373-74 (1st Cir. 1967), in which the First Circuit announced that it would
no longer bifurcate the entrapment defense into "sub-issues of induce-
ment and predisposition," but instead would look "at the ultimate ques-
tion of entrapment." Id. at 374. Under this unified standard, to satisfy his
initial burden a defendant would have to show "some indication that a
government agent corrupted him," but "such a showing [could not be]
made simply by evidence of a solicitation. There must be some evidence
tending to show unreadiness." Id. In this context, it seems clear that "un-
readiness" corresponds to what had theretofore been known as the "pre-
disposition" element of the entrapment defense, while the "solicitation"
showing informs the "inducement" element. Thus, viewing the entrap-
ment defense in this unitary fashion, a defendant must necessarily pro-
duce prima facie evidence on both "elements" of entrapment —
inducement (i.e. solicitation) and lack of predisposition (i.e. unreadiness)
— to warrant an entrapment instruction. (We recognize that the Kadis
court referred only to "solicitation" in referencing the first element, but
at the time it decided Kadis the First Circuit did not always differentiate
between "solicitation" and "inducement." See, e.g., Sagansky v. United
States, 358 F.2d 195, 202 (1st Cir. 1966)). Indeed, later First Circuit
cases have adopted precisely this interpretation; using the terms "predis-
position" and "unreadiness" virtually interchangeably, they require prima
facie evidence of this second element, as well as the first element,
defined as solicitation plus government overreaching or improper con-
duct. See, e.g., United States v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998);
United States v. Joost, 92 F.3d 7, 12 (1st Cir. 1996); United States v.
Rodriguez, 858 F.2d 809, 812-16 (1st Cir. 1988). Under this approach,
a showing of "unreadiness" would satisfy the defendant’s prima facie
burden as to the "predisposition" element; it would not, however, have
any bearing on the "inducement" element.
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quire cocaine for [him] before they acquiesced," an entrapment
instruction was not warranted).
The analysis in DeVore itself fully accords with this view. In
DeVore, the court found insufficient evidence to warrant an entrap-
ment instruction because DeVore offered no evidence of "‘induce-
ment’ . . . only solicitation." DeVore, 423 F.2d at 1072. If the DeVore
court had actually held that inducement could also be shown by evi-
dence of "solicitation plus unreadiness," as Defendants contend, then
it would have gone on to explore whether DeVore had offered evi-
dence of "unreadiness." But the court did not engage in any analysis
of DeVore’s "unreadiness"; rather, in determining whether DeVore
had produced evidence of inducement, the court focused exclusively
on the absence of "any excessive behavior on the part of the govern-
ment." Id. Thus, neither DeVore nor any other case cited by Defen-
dants holds that inducement can be defined as "solicitation plus
unreadiness."
Furthermore, Defendants’ definition of inducement would contra-
vene the standard set forth in Mathews — that a court cannot give an
entrapment instruction when there is insufficient "evidence from
which a reasonable jury could find entrapment." Mathews, 485 U.S.
at 62. Instructing a jury based solely on a showing of "solicitation
plus unreadiness," as Defendants urge, would do just that: "solicita-
tion" alone does not amount to inducement, and "unreadiness" speaks
only to the predisposition element. Therefore, a jury could not find
entrapment based solely on these two factors. Moreover, the very rea-
son why solicitation alone does not constitute inducement — "it is not
the kind of conduct that would persuade an otherwise innocent person
to commit a crime," DeVore, 423 F.2d at 1071 — forecloses Defen-
dants’ definition of inducement as "solicitation plus unreadiness."
This is so because simply "soliciting" an otherwise "innocent" or "un-
ready" person would not be persuasive enough "to implant a criminal
design in [his] mind." Daniel, 3 F.3d at 778.
Therefore, to be entitled to an entrapment instruction, a defendant
must produce "more than a scintilla" of evidence of "inducement,"
defined as solicitation plus some overreaching or improper conduct
on the part of the government.4 In setting forth this standard, we do
4We have not been entirely consistent as to whether a defendant must
also come forward with some evidence demonstrating a lack of predispo-
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not announce a new rule; rather we merely disavow some confusing
dicta and adhere to the approach we have followed for several dec-
ades. With the proper definition of inducement in mind, we turn to the
question of whether the district court erred in concluding that Defen-
dants failed to offer more than a scintilla of evidence of inducement.
B.
We first discuss the application of this definition to Hsu and then
to Yang.
(i)
Hsu, unlike most defendants who contend government agents
entrapped them, initiated discussion of the scheme; Hsu telephoned
Mykotronx to request information on the company’s KIV encryption
sition (or "unreadiness") prior to submitting an entrapment defense to the
jury. Compare United States v. Blevins, 960 F.2d 1252, 1257 (4th Cir.
1992) (stating that "defendant has the initial burden of presenting more
than a scintilla of evidence establishing these two elements[,]" referring
to inducement and lack of predisposition) (emphasis added), with United
States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998) (stating that "the defen-
dant has the initial burden to produce more than a scintilla of evidence
that the government induced him to commit the charged offense, before
the burden shifts to the government to prove beyond a reasonable doubt
that the defendant was predisposed to commit the crime") (internal quo-
tation marks and citation omitted). Other circuits have divided on this
question. See United States v. Whoie, 925 F.2d 1481, 1483 (D.C. Cir.
1991) (explaining different approaches). Courts that ascribe to a "uni-
tary" approach on entrapment require the defendant to establish a prima
facie case of entrapment as a whole, i.e., inducement and lack of predis-
position. See, e.g., United States v. El-Gawli, 837 F.2d 142, 145-46 (3d
Cir. 1988); Rodriguez, 858 F.2d at 814. But in those jurisdictions follow-
ing a "bifurcated" approach, the defendant need only produce some evi-
dence as to inducement before the burden shifts to the government to
prove the defendant was predisposed. See, e.g., Whoie, 925 F.2d at 1483-
84. Because we have concluded that Defendants have failed to produce
sufficient evidence of government inducement, in this case Defendants
would not be entitled to a jury instruction under either approach.
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device. At that time, however, Hsu did not know that export of the
device would violate the law. Stevenson, the government agent,
informed Hsu of the illegality of the transaction in their very first con-
versation, but also stated that he would be willing to arrange a sale
if Hsu had "a way to get [the devices] out of" the country. Thus,
although Stevenson did not initiate discussions with Hsu, he did
solicit Hsu, in that he provided Hsu with an opportunity to commit a
crime.
But, as even Defendants concede, solicitation does not constitute
inducement, and evidence of solicitation does not entitle a defendant
to an instruction on entrapment. See, e.g., United States v. Singh, 54
F.3d 1182, 1189 (4th Cir. 1995); Daniel, 3 F.3d at 778. Rather, Hsu
must offer some evidence of government overreaching, Daniel, 3 F.3d
at 778; some "excessive pressure by the government upon the defen-
dant or the government’s taking advantage of an alternative, non-
criminal type of motive." Gendron, 18 F.3d at 961. After scouring the
record, we cannot find even a scintilla of such evidence.
Not only did Hsu initially request information on the KIV unit,
albeit without knowing that its export was illegal, but even after being
informed of the illegality, Hsu telephoned Stevenson again, on his
own initiative, to determine how to "proceed" with the illegal sale. In
subsequent conversations to finalize the sale, Stevenson informed Hsu
more than a dozen times that exportation of the KIV units violated the
law; yet Hsu never indicated he did not want to go forward with the
illegal sale.
At no time during the three-month negotiation process did Steven-
son threaten Hsu, see United States v. Groll, 992 F.2d 755, 759 (7th
Cir. 1993), or his family, see United States v. Becerra, 992 F.2d 960,
963 (9th Cir. 1993). At no time did the agent play upon Hsu’s weak-
nesses, see United States v. Kessee, 992 F.2d 1001, 1003-04 (9th Cir.
1993), or attempt to engender improper sympathy for the agent, see
United States v. Sullivan, 919 F.2d 1403, 1419 n.21 (10th Cir. 1990).
Hsu does not even suggest to the contrary.
Instead, in support of his case of government overreaching, Hsu
points only to Stevenson’s alleged offer of "rewards" for Hsu’s partic-
ipation and his "constant high-pressure effort . . . to push Hsu along."
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Brief of Appellants at 40. A fair reading of the record reveals that the
passing mention of these "rewards" — that Hsu’s friend in China
could be an "exclusive representative" and that Hsu would be paid a
percentage of "mail services" — were mere banter. At most they were
only the most mild form of persuasion; they were certainly not suffi-
cient to "implant a criminal design in the mind of an otherwise inno-
cent party" and so do not "present evidence of inducement." Daniel,
3 F.3d at 778-79 ("Our precedents leave no doubt that . . . mild forms
of persuasion . . . don’t present evidence of inducement."). Similarly,
although Stevenson could fairly be described as a somewhat persis-
tent (and loquacious) salesperson, he never pressured Hsu to complete
the sale; indeed Stevenson’s frequent warnings about the illegality of
the export would likely have persuaded an "otherwise innocent party,"
id. at 778, to back out of the deal.
In sum, Hsu failed to satisfy his initial burden and accordingly, the
district court did not err in refusing to give him an entrapment instruc-
tion.
(ii)
Perhaps even more than Hsu, Yang emphasizes the evidence he
offered as to his own "unreadiness." But, as explained above, this evi-
dence is of no moment unless Yang can demonstrate prima facie evi-
dence of inducement, i.e., government solicitation plus some sort of
government overreaching. Singh, 54 F.3d at 1189; Daniel, 3 F.3d at
778. Like Hsu, however, Yang fails to offer evidence to establish
even a prima facie case of inducement.
First, any actual government "solicitation" of Yang was only of the
most indirect nature. Stevenson did not specifically pursue Yang.
Rather, not wanting to be the only one taking the risk by personally
shipping the KIV units out of the United States, Stevenson simply
sought somebody, anybody (including Hsu or Ho), who would be
willing to receive the units domestically and export them. Indeed, on
several occasions, Stevenson indicated a desire to work with a for-
warder other than Yang, and suggested pursuing a different means of
export altogether. But even assuming that Stevenson could be said to
have directly solicited Yang, clearly Stevenson never coerced or pres-
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sured Yang so as to "displace [Yang’s] mens rea." Osborne, 935 F.2d
at 38 (internal quotation marks and citations omitted).
Yang, like Hsu, does not suggest that Stevenson attempted to
threaten him or his family, prey on his weaknesses, or invoke
improper sympathy for the government agent. Rather, Yang’s case for
government overreaching rests entirely on derivative entrapment, a
legal theory we have previously rejected, and the contention that the
frequency of Stevenson’s telephone calls constitutes improper gov-
ernment persuasion. Neither of these arguments persuade us.
First and principally, Yang maintains that Ho and Hsu "repeated-
[ly]" solicited him and that their high-pressure tactics should be
imputed to the government on a theory of "derivative entrapment."
Brief of Appellants at 48-50. However, we have expressly refused to
recognize derivative entrapment as a basis for an entrapment defense.
See United States v. Squillacote, 221 F.3d 542, 573-74 (4th Cir. 2000)
("[I]n the Fourth Circuit, a defendant cannot claim an entrapment
defense based upon the purported inducement of a third party who is
not a government agent if the third party is not aware that he is deal-
ing with a government agent."). Yang acknowledges this but asks us
to "reconsider [our] position." Brief of Appellants at 49. But, of
course, one panel cannot "reconsider" the holding of another. Jones
v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996).
Alternatively, Yang argues that the mere frequency of Stevenson’s
calls suffices to qualify as government persuasion. Excessive phone
calls from a government agent could, in the proper circumstances,
amount to the extra pressure needed to transform solicitation into
inducement. See, e.g., United States v. Acosta, 67 F.3d 334, 338 (1st
Cir. 1995). But they do not do so here.
Viewed in context, the frequency of Stevenson’s calls simply
reflect an ongoing business negotiation requiring communication
among several parties in different time zones. Moreover, Stevenson
initiated several of the calls at the direction of Ho or in response to
Yang himself, and on a number of occasions they represented failed
efforts to reach Yang in his office. Furthermore, the content of these
calls does not reveal the use of any high-pressure tactics. Rather, as
he did in his telephone calls with Hsu, Stevenson repeatedly warned
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Yang that exporting the KIV units to China without a license, which
could not be obtained, violates the law. For example, in the short
August 16 telephone call, on which Yang particularly relies, Steven-
son told Yang three times that he could not "get a license" and also
explained that it was "not legal, you know, to do it" without a license.
Far from exerting excessive pressure on Yang to join the criminal
scheme, the record indicates that Stevenson almost pressured Yang to
leave it, stating on one occasion that "if we’re all gonna work
together, we’ll work together . . . [b]ut if not, then, then no." Thus the
repeated calls in this case do not constitute government inducement.
In sum, Yang too failed to satisfy his initial burden. Thus, the dis-
trict court did not err in refusing to give Yang an entrapment instruc-
tion.
IV.
Defendants’ other three arguments can be resolved with less dis-
cussion.
A.
First, Defendants contend that the district court abused its discre-
tion in refusing to inquire further during voir dire into the occupations
of prospective jurors and their spouses. Although jurors were given
a printout requesting this information prior to trial, several jurors left
these questions blank, and the district court denied Defendants’
request to supplement the questionnaires by inquiring about the miss-
ing information during voir dire.
The conduct of voir dire is committed to the sound discretion of the
district court, and thus it is only a "rare case in which a reviewing
court will find error in the trial court’s conduct . . . ." Sasaki v. Class,
92 F.3d 232, 239 (4th Cir. 1996); accord United States v. Lancaster,
96 F.3d 734, 738 (4th Cir. 1996) (en banc).
Here, the jury was asked to fill out a form divulging their name,
age, address, occupation, employer, employer’s address, and spouse’s
occupation. In addition, the district court asked the jurors more than
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twenty questions during voir dire, six of which addressed employment
issues and established whether the prospective jurors or any of their
friends or relatives (implicitly including their spouses) were:
employed by a state, local, or federal law enforcement agency;
employed or received training in the import-export, freight forward-
ing, or customs brokering business; employed or received training in
the legal field; self-employed; or served in the military. Thus, far
from knowing nothing about the eighteen potential jurors who failed
to fill out some of the requested occupational information, Defendants
were able to conclude that these jurors (and their spouses) were not
within one of these six rather broad categories. Ultimately, Defen-
dants only lacked affirmative information on two of the potential
jurors.
In sum, after "examin[ing] the voir dire as a whole," we are con-
vinced that it was "reasonably sufficient to probe the prospective
jurors for bias and partiality." Lancaster, 96 F.3d at 742. Accordingly,
this does not represent one of those "rare cases," Sasaki, 92 F.3d at
239, in which the district court abused its discretion.
B.
We turn next to Defendants’ assertion that the district court’s
interim instructions erroneously stated the law, unduly prejudicing
Defendants’ case. We review claims that a jury instruction failed to
state the law accurately de novo. United States v. Cherry, 330 F.3d
658, 665 (4th Cir. 2003).
In the midst of Stevenson’s testimony, the district court sua sponte
halted the proceedings to give the jury interim instructions. As part
of these instructions, the court described "five different levels" of
fact-finding in which the jury would engage: (1) whether Stevenson
was in fact a government agent and whether he made the phone calls;
(2) what the speaker actually said during the phone calls; (3) what the
speaker intended to communicate; (4) what a "reasonable person hear-
ing the words would have understood them to mean"; and (5) "what
the defendant understood the words that were spoken to him" to
mean, and "what the defendant intended to convey." Defendants con-
tend that the fourth level of fact finding, referring to the "reasonable
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person," incorrectly stated the law because the crimes charged
required specific intent.
Generally, the "reasonable person" standard has no place in instruc-
tions pertaining to a specific intent crime. See United States v.
George, 266 F.3d 52, 60 (2d Cir. 2001). To determine whether jury
instructions require reversal, however, we assess the instructions as a
whole and view them in context. See United States v. Muse, 83 F.3d
672, 677 (4th Cir. 1996).
In this case, the district court made two references to the "reason-
able person"; first as part of the "five levels" of fact-finding, and sec-
ond when discussing how the jury should evaluate the government
agent’s testimony. The first reference was immediately followed by
the instruction that the jury must determine what "the defendant
understood" and "what the defendant intended to convey." The second
reference occurred when the court explained that it had admitted evi-
dence of the agent’s "state of mind" only to "assist [the jury] in deter-
mining what, for example, a reasonable person would have thought
was intended or understood, but not as substantive evidence of any-
body’s guilt in this case." Viewed in this light, we are confident that
the jurors proceeded under a proper understanding of the governing
law. Moreover, if any ambiguity remained after the interim instruc-
tions, the final jury instructions, which made no mention of the "rea-
sonable person," sufficiently clarified the proper standard. Thus,
while perhaps ill-advised, the interim instructions do not constitute
reversible error.
C.
Defendants finally contend that we must vacate their attempt con-
victions because the State Department has not been delegated the
authority to punish attempts, and any such delegation would be
unconstitutional. These contentions are without merit.
The AECA broadly delegates authority to the President (which, in
turn, he has delegated to the Secretary of State, see ante at 2), to issue
regulations "to control the import and the export of defense articles,"
and authorizes a criminal penalty for violation of those regulations.
§ 2778(a)(1), (c). The regulation punishing the attempt to export these
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proscribed articles without a license, 22 C.F.R. § 127.1(a)(1), falls
squarely within this delegated authority, and is fully consonant with
Congress’s "broad authority to [delegate to] the President in foreign
affairs." United States v. Gurrola-Garcia, 547 F.2d 1075, 1079 (9th
Cir. 1976); cf. United States v. Mechanic, 809 F.2d 1111, 1113-14
(5th Cir. 1987) (holding that the regulation punishing attempts under
a similar statute, the Export Administration Act, was valid prior to a
statutory amendment explicitly including attempt as a punishable
offense).
In fact, "stop[ping] smugglers as they approach an international
border, to confiscate their munitions and to impose upon them crimi-
nal sanctions" is an especially "effective means of controlling the
exportation of listed munitions." Gurrola-Garcia, 547 F.2d at 1077.
It would be nonsensical to hold otherwise. Id. (noting that if the gov-
ernment had to wait for defendants to export the proscribed items "the
violator would [then] be outside the jurisdiction of the law enforce-
ment officers and courts directed to penalize him for the crime").5
Thus, Defendants’ final contention also fails.
V.
For all of the foregoing reasons, the judgment of the district court
is
AFFIRMED.
5The two other circuits to address this question have arrived at the
same conclusion. See Gurrola-Garcia, 547 F.2d at 1078-79 (discussing
predecessor statute); Samora v. United States, 406 F.2d 1095 (5th Cir.
1969) (same).
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