15‐3814‐cr
United States of America v. Mark Henry
In the
United States Court of Appeals
for the Second Circuit
________
AUGUST TERM 2017
No. 15‐3814‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
MARK HENRY, AKA WEIDA ZHENG, AKA SCOTT RUSSEL, AKA BOB
WILSON, AKA JOANNA ZHONG
Defendant‐Appellant.*
________
Appeal from the United States District Court
for the Eastern District of New York.
________
ARGUED: SEPTEMBER 13, 2017
DECIDED: APRIL 26, 2018
________
Before: JACOBS, CABRANES, and WESLEY, Circuit Judges.
The Clerk of Court is directed to amend the official caption as set forth above.
*
Defendant‐Appellant Mark Henry (“defendant” or “Henry”)
appeals the November 25, 2015 judgment of the United States District
Court for the Eastern District of New York (Roslynn R. Mauskopf,
Judge) convicting him after jury trial of one count of conspiracy to
violate and one count of violating, attempting to violate, and aiding
and abetting the violation of the Arms Export Control Act (“AECA”),
22 U.S.C. §§ 2778(b)(2), (c).
Five questions are presented on appeal: (1) whether the AECA
unconstitutionally delegates legislative authority to the executive; (2)
whether the District Court erred in instructing the jury on the conduct
required to find “willfulness”; (3) whether the District Court erred in
instructing the jury on “conscious avoidance”; (4) whether the District
Court violated Henry’s rights under the Sixth Amendment and the
Court Interpreters Act (“CIA”), 28 U.S.C. §§ 1827–28, to waive the
assistance of an interpreter; and (5) whether the District Court abused
its discretion in requiring that Henry be provided the assistance of a
court‐appointed Mandarin interpreter throughout trial.
We answer all five questions in the negative and therefore
AFFIRM the District Court’s judgment of conviction.
AIMEE HECTOR, Special Assistant United States
Attorney, (Michael Lockard, Special Assistant
United States Attorney, on the brief), for Richard P.
2
Donoghue, United States Attorney for the Eastern
District of New York, New York, NY, for Appellee.
MARC FERNICH, Law Office of Marc Fernich, New
York, NY, for Defendant‐Appellant.
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐Appellant Mark Henry (“defendant” or “Henry”)
appeals the November 25, 2015 judgment of the United States District
Court for the Eastern District of New York (Roslynn R. Mauskopf,
Judge) convicting him after jury trial of one count of conspiracy to
violate and one count of violating, attempting to violate, and aiding
and abetting the violation of the Arms Export Control Act (“AECA”),
22 U.S.C. §§ 2778(b)(2), (c).
Five questions are presented on appeal: (1) whether the AECA
unconstitutionally delegates legislative authority to the executive; (2)
whether the District Court erred in instructing the jury on the conduct
required to find “willfulness”; (3) whether the District Court erred in
instructing the jury on “conscious avoidance”; (4) whether the District
Court violated Henry’s rights under the Sixth Amendment and the
Court Interpreters Act (“CIA”), 28 U.S.C. §§ 1827–28, to waive the
assistance of an interpreter; and (5) whether the District Court abused
its discretion in requiring that Henry be provided the assistance of a
court‐appointed Mandarin interpreter throughout trial.
3
We answer all five questions in the negative and therefore
AFFIRM the District Court’s judgment of conviction.
I. BACKGROUND
Because Henry is appealing a judgment of conviction entered after
trial, we view the facts from the trial record in the light most favorable
to the government. 1
A. Henry’s Arms Export Business
Henry ran an arms export business—Fortune Tell, Ltd. (“Fortune
Tell”)—out of his home in Flushing, Queens. At least four times
between 2009 and 2012, Henry bought “ablative materials”—a
military technology used in rockets and missiles—from an American
distributor, Krayden, Inc. (“Krayden”), and exported them to a
customer in Taiwan. The customer was buying the materials on behalf
of the Taiwanese military.
The export of ablative materials requires a license issued by the
Directorate of Defense Trade Controls (“DDTC”) of the United States
Department of State. This requirement is part of a comprehensive
regulatory framework established by the AECA, which in turn
authorizes the President of the United States to implement rules
1 See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
4
regarding the export and control of “defense articles.”2 The ablative
materials Henry exported are considered “defense articles” under the
AECA.3 It is a crime to violate the AECA or any of the rules and
regulations promulgated thereunder.4
The jury found that Henry exported or attempted to export
ablative materials despite not having the required DDTC export
license. According to the evidence presented at trial, Krayden
prominently displayed information regarding the need for an export
license in its communications with Henry. Henry and his customer in
Taiwan also repeatedly discussed the export license requirement
through email correspondence. Instead of acquiring the license,
2 See generally 22 U.S.C. § 2278.
3 See 22 C.F.R. § 121.1 Category XIII(d)(1) (2017); see also id. Category IV(f) (2009);
Supplemental App. 245.
4 22 U.S.C. § 2278(c) (“Any person who willfully violates any provision of this
section, section 2779 of this title, a treaty referred to in subsection (j)(1)(C)(i), or
any rule or regulation issued under this section or section 2779 of this title,
including any rule or regulation issued to implement or enforce a treaty referred
to in subsection (j)(1)(C)(i) or an implementing arrangement pursuant to such
treaty, or who willfully, in a registration or license application or required report,
makes any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, shall upon conviction be fined for each violation not more than
$1,000,000 or imprisoned not more than 20 years, or both.”).
5
Henry sought to conceal from Krayden the fact that he intended to
export the ablative materials.
Henry tried to conceal his conduct in different ways. In one
instance, when purchasing the ablative materials, he provided
Krayden the address of a freight forwarder by the name of AE Eagle,
which would in turn ship the materials to Fortune Tell. Instead of
identifying the address as belonging to AE Eagle, however, Henry
claimed that the address belonged to a fictitious company— “UDMC
Corporation”—in an attempt to disguise that the actual recipient was,
in fact, a freight forwarder that would export the materials outside of
the United States.
He also created false documentation in an effort to conceal from
United States customs authorities the identity of the materials he was
exporting, repeatedly referring to the contents of the shipments by
names that obscured the fact that the packages contained ablative
materials.
Henry sometimes used his true name when placing these orders.
At other times, he placed orders under “Scott Russel,” “Weida
Zheng,” or “DaHua Electronics Corp.” Each of these orders was
intended for Fortune Tell.
In addition to his dealings with Krayden, Henry ordered two
microwave amplifiers from Amplifier Research Corp. (“Amplifier”),
a United States manufacturer, in 2012. Because such devices serve
both military and commercial purposes, exporting them overseas
requires an additional license from the U.S. Department of
6
Commerce. Henry did not obtain the required licenses before
attempting to ship the two amplifiers to mainland China. He also
repeatedly provided the wrong end user address to Amplifier to
obtain a lower price available only for end users who reside in the
United States. In its correspondence with Henry, Amplifier made
clear that the materials sold were subject to the AECA.
Although it did send the requested products to Henry, Amplifier
alerted law enforcement when it learned of Henry’s efforts to disguise
the end user. Henry was arrested after he had received the materials
but before he had shipped them to China.
He was indicted on one count of conspiracy to violate the AECA,
22 U.S.C. §§ 2778(b)(2) & (c), Title 18, United States Code, Section 371;
one count of violating, attempting to violate, and aiding and abetting
the violation of the AECA, Title 22, United States Code, §§ 2278(b)(2)
and (c) and Title 18, United States Code, Section 2; and a third count
of attempting to violate the International Emergency Economic
Powers Act (“IEEPA”), Title 50, United States Code, Section 1705.
B. Trial Testimony
At trial, Henry testified he did not know that he was required to
obtain a license for any of the materials he exported or sought to
export. Some of his testimony was contradictory. While he admitted
to being aware generally of export restrictions on certain materials, he
denied ever having seen the export license warnings displayed
repeatedly in correspondence with Krayden and Amplifier. He also
asserted that his father had placed some of the orders with Krayden
7
and had otherwise handled all the email correspondence with the
company’s representatives, so that Henry himself would not have
been aware of any notice of export restrictions contained in that
correspondence.
Henry nevertheless admitted to reading correspondence in which
the manufacturer or distributor highlighted the need for an export
license, and admitted that he at times submitted incorrect end user
information to obtain a lower price for certain materials. He testified
that his misrepresentations to Krayden, Amplifier and United States
customs authorities were for purposes other than to conceal his effort
to export defense articles in violation of the AECA.
Henry’s father, Xinhao Zheng, also testified. He confirmed his
son’s representations and stated that he would often place orders and
correspond with manufacturers and distributors using his son’s name
and email address.
C. Use of an Interpreter
On the morning of the first day of trial, Henry, who is originally
from China, requested to proceed without the use of a Mandarin
interpreter. Henry testified that although he spoke English, he
principally wrote and spoke in Mandarin. He admitted that he always
used Google Translate when writing emails to manufacturers or
distributors, and that he also used Google Translate while placing
orders. Henry had used an interpreter in all pretrial proceedings but
now wished to proceed without one because he believed the use of an
8
interpreter would diminish his credibility and prejudice the jury
against him.
To assess the need for an interpreter, the District Court inquired
about Henry’s facility with the English language. After extensive
discussion with Henry’s lawyer and Henry himself about his ability
to speak and understand English, the District Court concluded that,
because of the technical nature of some of the evidence likely to be
presented, Henry would be provided the assistance of a court‐
appointed Mandarin interpreter throughout the trial. As a
compromise with Henry, the District Court made one exception to
this rule. It permitted Henry to testify in English with the assistance,
as necessary, of a standby interpreter, an option of which he took
advantage during his testimony.
D. Conviction and Sentence
The jury returned a verdict of guilty as to the two AECA counts on
July 2, 2014, and it acquitted Henry on the IEEPA count.5 Henry filed
a motion for a new trial on August 1, 2014.6 It was denied on February
27, 2015.7 Judge Mauskopf sentenced Henry principally to a term of
imprisonment of 78 months on November 24, 2015.8
5 See 13 Cr. 91, Dkt. No. 59.
6 Dkt. No. 70.
7 Dkt. No. 77.
8 Id., Dkt. No. 94.
9
II. DISCUSSION
A. Constitutionality of the Arms Export Control Act
Henry first challenges the sufficiency of the evidence presented at
trial, but this argument is more accurately understood as a challenge
to the constitutionality of the AECA.9 In his view, the provisions of
the AECA authorizing the President to designate certain goods as
“defense articles” are an unconstitutional delegation both because of
their vagueness and because the AECA’s statutory and regulatory
scheme imposes criminal penalties on violators.
We hold, in agreement with the other circuits that have considered
the issue,10 that the AECA does not unconstitutionally delegate
legislative authority to the executive.
1.
Congress is constitutionally prohibited from delegating its
legislative authority to another branch of Government.11 However,
courts have recognized certain exceptions to this rule, with the
9 See Def. Br. at 12 (“[T]he State Department has no fixed or prescribed method
. . . for classifying given articles as defense objects subject to the Munitions
List.”).
10 See United States v. Chi Tong Kuok, 671 F.3d 931, 938–39 (9th Cir. 2012); United
States v. Hsu, 364 F.3d 192, 204–05 (4th Cir. 2004).
11 Touby v. United States, 500 U.S. 160, 165 (1991).
10
understanding that “Congress simply cannot do its job absent an
ability to delegate power under broad general directives.”12 The
Supreme Court has sanctioned Congress’s authority, in enacting
legislation, to “give to those who [are] to act under such [legislation]
‘power to fill up the details’ by the establishment of administrative
rules and regulations.”13 The Court has allowed for such delegation
even where violations of such regulations result in serious criminal
penalties.14
When Congress delegates authority to the Executive, it must “lay
down by legislative act an intelligible principle to which the person
or body authorized [to exercise the delegated authority] is directed to
conform.”15 An “intelligible principle” is a principle that
“clearly delineates the general policy, the public agency which is to
apply it, and the boundaries of this delegated authority.”16
12 Mistretta v. United States, 488 U.S. 361, 372 (1989).
United States v. Grimaud, 220 U.S. 506, 517 (1911); Mistretta, 488 U.S. at 372 (“We
13
also have recognized, however, that the separate‐of‐powers principle, and the
nondelegation doctrine in particular, do not prevent Congress from obtaining the
assistance of its coordinate Branches.”).
14 Grimaud, 220 U.S. 506.
15 Mistretta, 488 U.S. at 372 (1989) (alteration in original) (quoting J.W. Hampton,
Jr., & Co. v. United States, 276 U.S. 394, 406 (1928)).
16 American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946); see also Mistretta, 488
U.S. at 372–73.
11
Courts have only twice found a delegation of legislative power to
violate the “intelligible principle” standard.17 Moreover, a delegation
of legislative authority to the executive is accorded special deference
if it concerns foreign affairs. This deference is justified by the “degree
of discretion and freedom” that the executive requires to conduct
foreign relations effectively.18 The Supreme Court has suggested that
a delegation of legislative authority to the executive that would
otherwise be unconstitutional could be held valid if “its exclusive aim
[were] to afford a remedy for a hurtful condition within foreign
territory.”19
See A.L.A Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (C.E.
17
Hughes, C.J., in a unanimous opinion, striking down delegation to industry
associations comprised of private individuals to create legally binding codes of
“fair competition”); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (striking
down blanket delegation to President to criminalize the interstate transport of
petroleum); see also United States v. Dhafir, 461 F.3d 211, 215 (2d Cir. 2006)
(observing that “the Supreme Court has struck down only two statutes as
impermissible delegations”).
18 United States v. Curtiss‐Wright Export Corp., 299 U.S. 304, 320 (1936); see also
Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“Congress—in giving the Executive authority
over matters of foreign affairs—must of necessity paint with a brush broader
than that it customarily wields in domestic areas.”).
19 Curtiss‐Wright, 299 U.S. at 315.
12
We review the constitutionality of the AECA de novo, as we would
any other federal statute.20
2.
The AECA, in relevant part, authorizes the President—“[i]n
furtherance of world peace and the security and foreign policy of the
United States”—to compile the United States Munitions List
(“USML”), which is to be comprised of goods and services that he
designates as “defense articles and defense services.”21 The AECA
also authorizes the President “to promulgate regulations for the
import and export of such articles and services.”22 Any good or
service placed on the USML cannot be imported or exported except
by license,23 and the statute imposes criminal penalties on violators.24
The President has in turn delegated the authority to compile the
USML and to grant or deny applications for export licenses to the
Secretary of State.25
20 United States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002).
21 22 U.S.C. § 2278(a)(1).
22 Id.
23 Id. § 2278(b)(2).
24 Id. § 2278(c).
25 See 22 C.F.R. § 120.2.
13
As promulgated pursuant to this authority, the USML sets forth
twenty categories of “defense articles.” For each category, it
enumerates a list of specific defense‐related materials subject to
regulation under the AECA.26 The ablative materials and microwave
amplifiers that Henry exported or attempted to export are among the
“defense articles” enumerated in the USML.27
These provisions of the AECA satisfy the intelligible principle
standard. The statute first delineates a general policy to guide the
actions of the executive: “furtherance of world peace and the security
and foreign policy of the United States.”28 It charges the President
with applying that policy by compiling the USML and promulgating
the associated regulations. It also establishes clear boundaries for this
authority. The statute limits the President’s discretion to defining a
list of defense‐related goods and services that are subject to export
control and to promulgating license regulations. It further constrains
this discretion by requiring the President to conduct periodic reviews
of the USML to determine which goods and services no longer require
export control.29 The President must report on those reviews to
26 See id. § 121.1.
27 See id. §§ 121.1 Category XIII(d)(1), Category XV(e)(14) (2017); §§ 121.1
Category IV(f), Category XV(e)(1) (2009).
28 22 U.S.C. § 2778(a)(1).
29 Id. § 2778(f)(1).
14
Congress, and if he wishes to amend the USML, he may do so only
after a thirty‐day waiting period.30
Henry’s challenge to the AECA is analogous to that raised by the
defendant in United States v. Dhafir.31 The defendant in Dhafir, after
being convicted of violating the IEEPA by transferring funds to one
or more persons in Iraq, argued that the law violated the non‐
delegation doctrine. We held the IEEPA to be constitutional, for
reasons that guide our analysis here.
The IEEPA grants the President the power to “investigate,
regulate, or prohibit” various commercial activities including: [i] “any
transactions in foreign exchange,” [ii] “transfers of credit or payments
between, by, through, or to any banking institution, to the extent that
such transfers or payments involve any interest of any foreign
country or a national thereof,” and [iii] “the importing or exporting of
currency or securities, by any person, or with respect to any property,
subject to the jurisdiction of the United States. . . .”32 Violations of the
IEEPA result in criminal penalties similar to those imposed under the
AECA. We found that the IEEPA conformed to the intelligible
principle standard because the statute “meaningfully constrains the
30 Id. §§ 2778(f)(1), (2).
31 461 F.3d 211 (2d Cir. 2006).
32 50 U.S.C. § 1702(a)(1)(A).
15
President’s discretion,” requires periodic review by Congress, and
relates to foreign affairs.33
Importantly, the section of the IEEPA at issue in Dhafir involved
an arguably broader delegation of Congressional power than the
provisions of the AECA at issue here. In Dhafir, we upheld the
IEEPA’s “criminal provisions”—the statute’s grant of authority to the
President to specifically “define conduct as criminal for an unlimited
time once a national emergency is declared,”34 a more sweeping
delegation than the authority to subject certain materials to export
licensure. Moreover, whereas the AECA touches only the defense
sector, the IEEPA authorizes the President to prohibit virtually any
commercial transaction that, in his judgment, threatens national
security.35
Henry nonetheless argues that the length and complexity of the
USML render it, and consequently the AECA, unconstitutionally
vague. This argument is without merit. The ablative materials Henry
exported or attempted to export were unambiguously included in the
USML during the time of his offense conduct.36 Henry was also made
33 Dhafir, 461 F.3d at 216‐17.
34 Id. at 217 (internal quotation marks omitted).
35 Id. at 216‐217.
36 See 22 C.F.R. § 121.1 Category IV(f) (2009) (including “[a]blative materials
fabricated or semi‐fabricated from advanced composites (e.g., silica, graphite,
carbon, carbon/carbon, and boron filaments) for the articles in this category that
16
aware by several emails, both from the distributor in the United States
and his customer in Taiwan, that ablative materials were included in
the USML. Henry’s conduct was clearly proscribed by the applicable
statute and regulations, and he knew it.
We thus conclude that the AECA does not unconstitutionally
delegate legislative authority to the executive. The statute is neither
violative of the “intelligible principle” standard nor
unconstitutionally vague.
B. Jury Instructions
Henry argues that the District Court erred in instructing the jury
on both willfulness and conscious avoidance. On willfulness, Henry
contends that the District Court erred by failing to instruct the jury
that the government had to prove not only that he knew that his
conduct was illegal, but also that he knew why it was illegal: that is,
because the items he attempted to export were listed on the USML.
On conscious avoidance, Henry argues that instruction to the jury on
the concept of conscious avoidance permitted the jury to find him
guilty on a standard of gross negligence or recklessness instead of the
required higher standard of willfulness.
are derived directly from or specifically developed or modified for defense
articles”).
17
We review challenges to jury instructions de novo, but we will not
find reversible error unless the charge either “failed to inform the jury
adequately of the law or misled the jury as to the correct legal rule.”37
1. “Willfulness”
a.
We consider the question of willfulness in light of United States v.
Bryan.38 In Bryan, the Supreme Court approved the following
definition of willfulness: “[a] person acts willfully if he acts
intentionally and purposely with the intent to do something the law
forbids, that is, with the bad purpose to disobey or disregard the
law.”39 The Court further held that a person who acts willfully need
not be aware of the specific law that his conduct may be violating.
Rather, “knowledge that the conduct is unlawful is all that is
required.”40 Knowledge of the specific law that one is violating has
been required only where a “highly technical statute[ ]”—such as a
37 United States v. Alfisi, 308 F.3d 144, 148 (2d Cir. 2002).
38 524 U.S. 184 (1998).
39 Id. at 190 (internal quotation marks omitted).
40 Id. at 196.
18
provision of the Internal Revenue Code—prohibits “apparently
innocent conduct.”41
b.
Here, the District Court instructed the jury as follows:
The fourth and final element that the government
must prove, is that the defendant acted knowingly and
willfully. A person acts knowingly if he acts intentionally
and voluntarily and not because of ignorance, mistake,
accident, or carelessness. Willfully means to act with
knowledge that one’s conduct is unlawful and with the
intent to do something that the law forbids. That is to say,
with a bad purpose, either to disobey or disregard the
law. The defendant’s conduct was not willful if it was
due to negligence, inadvertence, or mistake. However, it
is not necessary for the government to prove that the
defendant knew the precise terms of the statute or
regulatory provision he is charged with violating—that
is, the government is not required to prove that the
defendant knew the existence or details of the Arms
Export Control Act or the related regulations. All that is
required is that the government prove that the defendant
acted with the intent to disobey or disregard the law.42
The District Court’s instruction correctly and clearly stated the
definition of willfulness in the circumstances presented. It noted,
pursuant to Bryan, that willfulness requires only that the defendant
41 Id. at 194.
42 J.A. 174.
19
know that what he was doing was illegal, and not that he know that
his conduct was prohibited under a specific AECA provision or
related regulation.43
Moreover, the heightened definition of willfulness applicable to
“highly technical statutes” does not apply here. The cases on which
defendant relies—Ratzlaf v. United States and Cheek v. United States—
concern tax and financial regulation statutes so complicated and non‐
intuitive that one might violate them without actually understanding
that his conduct was illegal.44
These cases are exceptions to the hoary principle that ignorance of
the law is not a valid defense, and the AECA is not such an exception.
Regardless of whether Henry was aware of the items contained in the
United States Munitions List, or of the specific provisions of the
AECA that he was alleged to have violated, neither the list nor the
statute is unclear. Where it is proven beyond a reasonable doubt that
43 We have already rejected a similar argument raised by the defendant in United
States v. Homa Int’l. Trading Corp., 387 F.3d 144 (2d Cir. 2004). In Homa, the
defendant argued that the district court erred in instructing the jury that it need
only find an intention to violate the Iran embargo, rather than the specific
provisions of the IEEPA which, at the time, forbade U.S. citizens from trading
with Iran. Relying principally on Bryan, we held that the government need only
prove that the defendant knew that his conduct violated the Iran embargo
generally, and not because he also knew that his conduct ran afoul of Sections
1702 and 1705(b) of the IEEPA.
44 510 U.S. 135 (1994); 498 U.S. 192 (1991).
20
a defendant is generally aware of export license requirements for
military‐grade materials, there is no risk of criminalizing otherwise
innocent conduct on a mere technicality. Unsurprisingly, no other
court to have considered the AECA’s willfulness requirement has
applied the rule of those exceptional cases to this statute.45
We also reject Henry’s suggestion that the District Court’s
instruction ran afoul of the letter and purpose of the AECA. “The
AECA’s language and structure make clear that Congress struck a
balance between punishing those who intentionally violate the law
and ensnaring individuals who make honest mistakes.”46 The
statute’s willfulness requirement eliminates “any genuine risk of
holding a person criminally responsible for conduct which he could
not reasonably understand to be proscribed.”47
We conclude that the AECA’s willfulness provision requires only
that a jury find that the defendant violated a known legal duty and
not that he knew specifically of the USML or of any other provision
45 See United States v. Bishop, 740 F.3d 927, 933–34 (4th Cir. 2014); United States v.
Chi Mak, 683 F.3d 1126, 1138 (9th Cir. 2012); United States v. Roth, 628 F.3d 827,
834–35 (6th Cir. 2011); United States v. Tsai, 954 F.2d 155, 162 (3d Cir. 1992); United
States v. Murphy, 852 F.2d 1, 7 (1st Cir. 1988).
46 Bishop, 740 F.3d at 933.
47 Id. (internal quotation marks omitted).
21
of the AECA that imposed that duty. The District Court’s willfulness
instruction was therefore not erroneous.
2. “Conscious Avoidance”
a.
A conscious avoidance charge may only be given “(i) when a
defendant asserts the lack of some specific aspect of knowledge
required for conviction, and (ii) the appropriate factual predicate for
the charge exists, i.e., the evidence is such that a rational juror may
reach the conclusion beyond a reasonable doubt that the defendant
was aware of a high probability of the fact in dispute and consciously
avoided confirming that fact.”48 The conscious avoidance charge
“must communicate two points: (1) that a jury may infer knowledge
of the existence of a particular fact if the defendant is aware of a high
probability of its existence, (2) unless the defendant actually believes
that it does not exist.”49
48 United States v. Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (internal citation and
quotation marks omitted); see also United States v. Lanza, 790 F.2d 1015, 1022 (2d
Cir. 1986) (explaining that a conscious avoidance instruction is appropriate when
a defendant claims to lack “some specific aspect of knowledge necessary to
conviction but where the evidence may be construed as deliberate ignorance”).
49 United States v. Kaiser, 609 F.3d 556, 566 (2d Cir. 2010) (internal quotation marks
omitted).
22
b.
Henry’s principal defense at trial was that he was not aware of the
AECA’s export license requirements. He repeatedly testified that he
had not seen or read notices of the export license restrictions that were
contained in his correspondence with Krayden and Amplifier. His
father testified in support of this argument, noting that he often
corresponded with Krayden using his son’s name and email address
so that, in effect, he was the only one who was made aware of the
licensing requirements. The testimony of Henry and his father
attempted to build a factual predicate in support of an ignorance
defense. Accordingly, a conscious avoidance charge was entirely
appropriate.
Moreover, the conscious avoidance charge given by the District
Court was proper. The District Court gave the following instruction:
In determining whether the defendant acted
knowingly and willfully, you may consider whether the
defendant deliberately closed his eyes to what would
otherwise have been obvious to him. If you find beyond
a reasonable doubt that the defendant acted with a
conscious purpose to avoid learning the truth that
exporting the ablative material without a license was
unlawful, then this element may be satisfied. However,
guilty knowledge may not be established by
demonstrating that the defendant was merely negligent,
foolish, or mistaken.
If you find that the defendant was aware of a high
probability that exporting the ablative materials without
23
a license was unlawful and that the defendant acted with
deliberate disregard of that fact, you may find that the
defendant acted knowingly and willfully. However, if
you find that the defendant actually believed that
exporting the ablative material without a license was
lawful, he may not be convicted. It is entirely up to you
whether you find that the defendant deliberately closed
his eyes and any inferences to be drawn from the
evidence on this issue.50
In defining the concept of conscious avoidance, the District Court
made it clear that the jury could find that Henry acted knowingly if it
found that he consciously avoided “learning that the export of
ablative materials without a license was unlawful.”51 The District
Court also properly explained to the jury that although a finding of
conscious avoidance may be a substitute for actual knowledge, it
cannot substitute for the finding of the element of “willfulness”
necessary to prove the crimes charged.52 It did so by emphasizing that
mere negligence or recklessness, coupled with conscious avoidance,
was not enough to convict.53 It also did so by properly instructing the
50 J.A. 174–75.
51 Id.
52 Cf. United States v. Beech‐Nut Nutrition Corp., 871 F.2d 1181, 1195–96 (2d Cir.
1989) (rejecting claims that conscious avoidance charge was improperly applied
to a finding of criminal intent).
53 Cf. id.; see also United States v. Friedman, 300 F.3d 111, 125 (2d Cir. 2002).
24
jury on the separate concept of “willfulness” and by properly
explaining that in order to find that defendant acted willfully, the jury
had to find both that defendant acted with knowledge that his
conduct was unlawful and with the intent to do something that the
law forbids.
* * *
We thus hold, in agreement with four of our sister circuits,54 that
the District Court’s willfulness instruction was not erroneous,
because the AECA does not require that a defendant have known
specifically of the USML or of any other provision of the Act. We also
hold that a conscious avoidance instruction was appropriate in
Henry’s case and that the instruction given by the District Court was
correct because that charge made clear to the jury that it was still
required to find that the defendant acted willfully.
C. Waiver of the Use of a Court‐Appointed Interpreter
Finally, Henry argues that the District Court’s requirement that he
use a Mandarin interpreter violated his rights under the Sixth
Amendment and the Court Interpreters Act, or CIA, of 1978.55 First,
he contends that the Sixth Amendment and the CIA afford him an
54 See Bishop, 740 F.3d at 933–34; Chi Mak, 683 F.3d at 1138; Roth, 628 F.3d at 827;
Tsai, 954 F.2d at 155; Murphy, 852 F.2d at 7.
55 See U.S. Const., amend. VI; 28 U.S.C. § 1827(d)(1).
25
absolute right to waive the use of an interpreter. Next, he argues that
even if the right to waive the use of an interpreter is not absolute, the
District Court abused its discretion under the CIA by requiring that
Henry use an interpreter while testifying.
We review de novo district court interpretations of the Constitution
and of federal statutes.56
1. The right to waive use of a court‐appointed interpreter is
not absolute
a.
Both the Sixth Amendment and the CIA guarantee a criminal
defendant the right to use of an interpreter. Nearly half a century ago,
in United States ex rel. Negron v. New York, we held that the Sixth
Amendment affords a criminal defendant the “right to have a
competent translator assist him, at state expense if need be,
throughout his trial.”57 We have not had occasion to define the scope
of this right since Negron.
Relatedly, the CIA provides, in relevant part, for court
appointment of an interpreter:
56 See United States v. Quinones, 313 F.3d 49, 60 (2d Cir. 2002) (constitutional
interpretation); Pettus, 303 F.3d at 483 (constitutionality of federal statute).
57 United States ex rel. Negron v. New York, 434 F.2d 386, 91 (2d Cir. 1970).
26
The presiding judicial officer (1) . . . shall utilize the
services of the most available certified interpreter . . . in
judicial proceedings instituted by the United States, if the
presiding judicial officer determines . . . that [a] party
(including a defendant in a criminal case), or a witness
who may present testimony in such judicial
proceedings—
(A) speaks only or primarily a language other than the
English language; or
(B) suffers from a hearing impairment (whether or not
suffering also from a speech impairment)
so as to inhibit such partyʹs comprehension of the
proceedings or communication with counsel or the
presiding judicial officer, or so as to inhibit such witnessʹ
comprehension of questions and the presentation of such
testimony.58
The CIA also affords a defendant the right to waive the use of a
court‐appointed interpreter.59 The statute provides that a defendant
may waive his statutory right to an interpreter if (1) the waiver is
made “expressly by such individual on the record” by the party, (2)
“after opportunity to consult with counsel,” (3) the presiding judge
58 28 U.S.C. § 1827(d)(1).
59 Id. § 1827(f)(1).
27
has explained to the defendant “the nature and effect of the waiver,”
and (4) the waiver is “approved by the presiding judicial officer.”60
We have yet to squarely address the effect of the requirement of
district court approval on the scope of the waiver. Our cases indicate,
however, that a defendant’s right to waive the use of an interpreter is
not absolute, and that a defendant’s waiver request need not be
honored when the court finds a compelling reason to deny it.
In United States v. Moon,61 the defendant argued that the district
court violated the CIA and his Sixth Amendment right to present a
full defense when it forced him to use a court‐appointed and court‐
certified interpreter instead of an interpreter of his own choosing.62
Moon moved pursuant to § 1827(f) of the CIA to waive the use of a
court‐certified interpreter. The district court ruled that Moon was free
to use the interpreter of his own choice for purposes of translating for
him the proceedings of the trial, but that if Moon elected to testify, his
testimony would have to be translated by a court‐certified
60 Id.
61 718 F.2d 1210 (2d Cir. 1983).
62 The CIA specifies that when an interpreter is necessary, the district court is to
appoint an interpreter who has been previously “certified” as a competent and
qualified interpreter by the Administrative Office of the United States Courts. 18
U.S.C. § 1827(b)(1). The program through which interpreters become “court‐
certified” is devised and maintained by the Director of the Administrative Office
of the United States Courts. Id. A district court is permitted to appoint a non‐
court‐certified, but otherwise qualified interpreter, “[o]nly in a case in which no
certified interpreter is reasonably available.” 28 U.S.C. § 1827(b)(2).
28
interpreter.63 Purportedly because of this restriction, Moon elected not
to testify at his own trial.64 He argued, as Henry does here, that the
district court’s action violated his absolute right under the CIA and
the Sixth Amendment to waive the use of a court‐appointed
interpreter.
We rejected Moon’s argument. We held that the court’s
requirement that Moon use a court‐appointed and court‐certified
interpreter while testifying, despite Moon’s expressed desire to
proceed without one, violated neither the CIA nor the defendant’s
Sixth Amendment fair trial right. We reasoned that, “even [if]
requiring Moon to use a court‐appointed interpreter [can] be viewed
as some restriction on his ability to present a full defense, . . . not all
restrictions on a defendant’s right to testify are per se impermissible”65
and that certain restrictions on a defendant’s right to testify in the
language he wishes are “sanctioned where reasonably necessary to
the achievement of a fair trial.”66
Similarly, in United States v. Huang,67 the district court declared a
mistrial, over the defendant’s objection, because it found that the
63 718 F.2d at 1231.
64 Id. at 1232.
65 Id. at 1231.
66 Id.
67 960 F.2d 1128 (2d Cir. 1992).
29
interpreter being used was not court‐certified. Because the defendant
expressed a desire to waive his right to a court‐certified interpreter
and proceed with trial, he appealed the mistrial order.68
We held in Huang that it was improper for the district court to
declare a mistrial without first analyzing the appropriateness of the
defendant’s waiver. We noted that the district court should have
analyzed whether there was a “sound ground on which it could
properly reject” the defendant’s request for waiver before declaring a
mistrial well into the trial.69 We went on to observe that we “[did] not
mean to suggest that a defendant who waived his own objection to a
translation that was materially deficient could thereby force the
continuation of the trial to the prejudice of the government and the
public,” and that when a trial was arguably compromised by
defendant’s invocation of waiver, rejection of the waiver might be
“required in the interests of justice.”70
b.
We conclude from these cases that although the Sixth Amendment
and the CIA afford a defendant a qualified right to waive the use of
an interpreter, the district court has discretion to determine whether
68 See id. at 1135–36.
69 Id. at 1136.
70 Id.
30
waiver is reasonable under the circumstances presented; neither the
Sixth Amendment nor the CIA grants an absolute right to waive use
of an interpreter at trial proceedings. Moreover, we conclude that the
applicable standard of review of a judge’s decision on waiver is
“abuse of discretion.”71
Requiring a defendant to use an interpreter when the district court
properly finds that one is necessary does not inhibit the defendant’s
ability to mount a successful defense. Rather, it ensures that
“whatever testimony a defendant gives is honestly reported,”72 and
that the court has taken the necessary steps to safeguard the
defendant’s right to a fair trial. Requiring the use of an interpreter
when necessary also ensures the accuracy and completeness of the
trial record, and helps to preserve a defendant’s rights in the event
that he chooses to appeal. Allowing the district court the discretion to
determine whether waiver is reasonable under the circumstances
71 Cf. Huang, 960 F.2d at 1136 (“We are unable to conclude that the district court
exercised sound discretion in [denying defendant’s request for waiver].”); see also
Sims v. Blot (In re Sims), 534 F.3d 117, 131–32 (2008) (holding that a district court’s
finding that a party has waived a privilege is reviewed under the abuse‐of‐
discretion standard, and defining the non‐pejorative term of art “abuse of
discretion”); United States v. Johnson, 248 F.3d 655, 664 (7th Cir. 2001) (“[U]nder
the CIA, the appointment of an interpreter as a constitutional matter is within the
district court’s discretion.”).
72 Moon, 718 F.2d at 1231.
31
presented is the best way to preserve the animating principles of the
Sixth Amendment.
The CIA already takes this approach. It permits a defendant to
waive the use of an interpreter, but it makes the waiver contingent on
the informed discretion of the presiding judge.73 A defendant’s ability
to waive the right to an interpreter at trial or in the course of related
proceedings is not absolute, and a district judge faced with a request
for a waiver must weigh a defendant’s wishes against the need for an
interpreter in order to safeguard the defendant’s right to a fair and
speedy trial and the public’s right to a comprehensible trial.
2. The District Court did not abuse its discretion
We now turn to whether the District Court in this case abused its
discretion by requiring that Henry use a court‐appointed interpreter
throughout the trial and use a standby interpreter while he testified
in English. We conclude that the District Court did not abuse its
discretion.
The District Court engaged in an extensive colloquy with both
Henry and defense counsel to ascertain the need for an interpreter. It
found that Henry had a working knowledge of English, but had
trouble with more technical language, requiring Henry’s lawyer to
frequently repeat the more complex phrases for him during trial
73 See 28 U.S.C. 1827(f)(1) (“Any individual other than a witness who is entitled to
interpretation . . . may waive such interpretation in whole or in part. Such a waiver
shall be effective only if approved by the presiding judicial officer . . . .”).
32
preparation. This finding was supported by the record. Henry had
used a court‐appointed interpreter at every court proceeding until
just before trial, when he requested to proceed without one. Henry’s
lawyer informed the District Court that Henry’s primary language
was Mandarin. He admitted his client spoke “good English,” but not
“great English.”74 Defense counsel also expressed concern that his
client would not understand some of the concepts elicited at trial if he
was permitted to proceed without the use of an interpreter. When
questioned by the District Court, the defendant likewise conceded
that some of the technical terms used at trial might be difficult for him
to understand in light of his limited English language competence.
The District Court considered solving this problem by having
defense counsel quietly explain to his client various complex concepts
as they came up at trial. It concluded, however, that such a procedure
would cause unnecessary delay. It also concluded that permitting
Henry the intermittent use of a standby interpreter would be
impracticable, as the witness would have to repeat previously given
testimony for the interpreter every time the defendant indicated that
he did not understand what had been said.
The District Court ultimately required the use of an interpreter
throughout the trial with one exception: Henry was permitted to
testify in English, with the ability to call on an interpreter if he could
not understand a question or clearly articulate his response. The
District Court hoped that this compromise would assuage Henry’s
74 A69.
33
concern that testifying with an interpreter would somehow prejudice
the jury against him. Henry did testify in English, and he indeed
required the use of an interpreter on several occasions during his
testimony.
The District Court respected Henry’s desire to invoke his waiver
and fashioned an appropriate compromise solution. The District
Court also clearly and properly instructed the jury that they were to
draw no adverse inference from the fact that the defendant
occasionally required the use of an interpreter.
The District Court’s handling of this complex question was careful
and thoughtful. It properly balanced Henry’s wishes against the need
for the jury and the public to understand the defendant’s testimony,
ensuring that he was afforded a fair trial.
CONCLUSION
To summarize, we hold that:
(1) the Arms Control Export Act is not an unconstitutional
delegation of legislative authority to the executive;
(2) the District Court’s instructions to the jury on “willfulness”
and “conscious avoidance” were not error;
(3) a defendant’s right to waive the use of a court‐appointed
interpreter under the Court Interpreters Act is not absolute;
34
(4) the District Court’s decision to place reasonable restrictions
on Henry’s request for a waiver did not violate his Sixth Amendment
rights; and
(5) the District Court did not abuse its discretion in requiring
that Henry be provided the assistance of a court‐appointed Mandarin
interpreter throughout trial.
For the reasons set out above, we AFFIRM the judgment of the
District Court.
35