Argued: October 11, 2019
Sammy Smith appeals from a judgment of the United States
District Court for the Eastern District of New York
(Weinstein, J.), sentencing him to two months'
imprisonment for attempting to export defense articles
without a license in violation of the Arms Export Control Act
of 1976, 22 U.S.C. § 2778, and its implementing
regulations. Smith argues that the statutory and regulatory
scheme under which he was convicted infringes on protected
speech in a manner that is substantially overbroad, in
violation of the First Amendment. Because Smith challenges
aspects of the statute and regulations that are not the basis
for his conviction, he lacks Article III standing to bring an
overbreadth claim. The judgment of the district court is
D. Grubin, Assistant United States Attorney, for Richard P.
Donoghue, United States Attorney for the Eastern District of
New York, New York, NY (Kevin Trowel, Assistant United States
Attorney, on the brief) for Appellee.
S. Zas, Federal Defenders of New York, Inc., Appeals Bureau,
New York, NY for Defendant-Appellant.
Before: Lynch, Lohier and Sullivan, Circuit Judges.
E. LYNCH, CIRCUIT JUDGE.
case concerns a criminal defendant's facial First
Amendment challenge to a federal statutory and regulatory
scheme that controls the export and import of "defense
articles" such as weapons. The Defendant-Appellant,
Sammy Smith, pled guilty in the United States District Court
for the Eastern District of New York (Jack B. Weinstein,
J.) to a charge of attempted export of defense
articles without a license, after federal agents at John F.
Kennedy International Airport, on two separate occasions,
discovered handgun parts in luggage he had checked in
connection with outgoing international flights. Smith argues
that the statutory and regulatory scheme under which he was
convicted infringes on protected speech in a manner that is
substantially overbroad, in violation of the First Amendment.
We conclude that the statute and regulations are
constitutional as applied to Smith and that Smith lacks
standing to bring a facial overbreadth challenge. We
therefore AFFIRM the judgment.
Statutory and Regulatory Background
Arms Export Control Act of 1976 ("AECA"), 22 U.S.C.
§§ 2751, et. seq., provides that "no
defense articles or defense services . . . may be exported or
imported without a license for such export or import."
22 U.S.C. § 2778(b)(2). It also provides for criminal
penalties up to a $1, 000, 000 fine and 20 years in prison
for "[a]ny person who willfully violates any provision
of this section . . . or any rule or regulation issued under
this section." Id. § 2778(c). The AECA
authorizes the President "to designate those items which
shall be considered as defense articles and defense services
for the purposes of this section and to promulgate
regulations for the import and export of such articles and
services. The items so designated shall constitute the United
States Munitions List." Id. § 2778(a)(1).
President, by executive order, has delegated to the U.S.
Department of State the authority to regulate under the AECA
and to designate defense "articles" and
"services" for inclusion on the United States
Munitions List ("USML"). See Exec. Order
No. 13, 637, § 1(n)(i), 78 Fed. Reg. 16, 129 (Mar. 8,
2013). The State Department's Directorate of Defense
Trade Controls has accordingly promulgated regulations known
as the International Traffic in Arms Regulations
("ITAR"). See 22 C.F.R. pts. 120-130
(2019). The ITAR make it unlawful to, inter alia,
"export or attempt to export from the United States any
defense article or technical data or to furnish or attempt to
furnish any defense service for which a license or written
approval is required" without such a license.
Id. § 127.1(a)(1).
ITAR's definition of "export" includes the
"actual shipment or transmission out of the United
States, including the sending or taking of a defense article
out of the United States in any manner." Id.
§ 120.17(a)(1). The ITAR also provide that a
"deemed export," defined as "[r]eleasing or
otherwise transferring technical data to a foreign person in
the United States," constitutes an "export."
Id. § 120.17(a)(2).
ITAR also include, at 22 C.F.R. § 121.1, the USML, which
enumerates the "articles, services, and related
technical data [that] are designated as defense articles or
defense services" for purposes of the AECA and ITAR.
Id. § 121.1(a). The USML organizes the
designated items into twenty-one categories, encompassing
various forms of weaponry, ammunition, explosives,
military-type equipment and vessels, toxicological agents,
classified data, and more. Each of the twenty-one categories
includes as a designated item "[t]echnical data"
and "defense services" that are "directly
related to the defense articles" listed in that
category. See, e.g., id. §§ 121.1(I)(i),
(II)(k), (III)(e), (IV)(i), (V)(j), (VI)(g), (VII)(h). The
ITAR define "technical data" to include
"[i]nformation . . . required for the design,
development, production, manufacture, assembly, operation,
repair, testing, maintenance or modification of defense
articles." Id. § 120.10(a)(1).
3, 2016, Smith arrived at John F. Kennedy International
Airport ("JFK Airport") with a ticket for an Air
Berlin flight from New York to Istanbul, Turkey. Smith was
selected for a pre-boarding inspection and interview with
Customs and Border Protection ("CBP") officers. In
the interview, Smith voluntarily informed CBP officers that
his checked suitcase contained gun parts. CBP officers
retrieved Smith's suitcase from the airplane, searched
it, and discovered a hard-shell case containing fourteen
Glock handgun upper receivers (or "slides"),
barrels, and recoil springs, and three Glock extractor
officers informed Smith that he could not transport handgun
parts out of the United States without an export license,
which Smith confirmed that he did not have. Smith stated that
he planned to have the gun parts engraved by Turkish
craftspeople upon his arrival, and then to sell the engraved
parts in Turkey. CBP officers seized the gun parts but
permitted Smith to board the flight to Istanbul. Smith
subsequently corresponded with CBP officials by phone and
email. During those conversations, he requested the return of
the gun parts and inquired about the process for obtaining an
export license. In a July 14, 2016, letter to Smith, CBP