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United States v. Smith

United States Court of Appeals, Second Circuit

December 23, 2019

United States of America, Appellee,
v.
Sammy Smith, Defendant-Appellant.

          Argued: October 11, 2019

         Defendant-Appellant 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 therefore AFFIRMED.

          Andrew 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.

          Edward S. Zas, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY for Defendant-Appellant.

          Before: Lynch, Lohier and Sullivan, Circuit Judges.

          GERARD E. LYNCH, CIRCUIT JUDGE.

         This 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.

         BACKGROUND

         I. Statutory and Regulatory Background

         The 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).

         The 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).

         The 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).

         The 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).

         II. Factual Background

         On June 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 depressors.

         CBP 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 ...


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