Appellate Law

CA1: even though some in the government might agree with the defendant, the jury can still convict

By S. COTUS

US v. Lachman, Nos. 06-1058, 06-1060, 06-1061 affirms a conviction for violating the Export Administration Act of 1979 ("EAA").  All the defendants were ?convicted by a jury of exporting (and conspiring to export) a control panel for a large hot isostatic press ("HIP") without the export license required by the EAA and its regulations.?  This is the second time this is before the court.  In evaluating a sufficiency challenge, the First says that enough evidence of scienter existed, the First says that it is good enough that the defendant said that he had figured a way to ?get around? certain provisions, and didn?t seek a ruling from the Department of Commerce on the issue. 

There is a really interesting argument that the defendants are entitled to a new trial on the basis of newly discovered evidence.  The evidence, in this case is that various government officials agreed (at one time or the other) with their interpretation of the law.  However, the First says that the defendants really didn?t proceed on that theory at trial and there is no evidence that they had a belief similar to those of the government officials. 

The defendants make a Brady argument ? that minutes of an international conference supporting their construction of the statute would have been in the department of commerce?s files.  The First says it isn?t prejudicial.

Finally, the First says that a failure to conduct a Fed. R. Crim. P. 44(c)(2) lawyer representing tow clients doesn?t per se entitled him to a new trial.  Instead the defendant can only ?prevail only if there was a plausible alternative defense strategy that was either foreclosed or inhibited by the joint representation.?

Full post as published by Appellate Law and Practice on March 26, 2008 (boomark / email).