dissenting:
I agree with the majority that the Secretary of Commerce’s decision to place a commodity on the Commodity Control List (“CCL”) is not subject to judicial review. I disagree, however, with the unwarranted conclusion that the majority draws from this initial proposition, to wit: that at a criminal trial the Secretary’s factual determination that a commodity had been placed on the CCL is conclusive and thus is not a question for the jury to determine. The authorities cited by the majority support the initial proposition, but not the conclusion drawn from it.
The majority cites two statutory grounds for its reading of the Act. First, Congress exempted the Secretary’s decision to place a commodity on the CCL from the judicial review provisions of the Administrative Procedure Act (“APA”). See § 8, Export Administration Act of 1969, reprinted in U.S.CODE CONG. & ADMIN.NEWS 943 (current version codified at 50 App.U.S.C. § 2412(a)) (excluding the functions exercised under the Export Administration Act from the operation of the APA’s judicial review provisions, 5 U.S.C. §§ 701-706). Section 704 of the APA provides for judicial review of agency action. The Spawrs are not challenging the Secretary’s initial decision to place their commodity on the CCL. What the Spawrs are challenging at their criminal trial is whether their product meets the description of an item previously placed on the CCL by the Secretary.
Second, two of the statutory provisions under which the Spawrs are charged make it a crime to violate any license or order issued by the Secretary. See Former 50 App.U.S.C. § 2405(b) and 50 App.U.S.C. § 5(b). Again, these provisions address actions by the Secretary (i.e., placing commodities on the CCL or issuing or refusing to issue an export license) occurring before an alleged criminal violation of the Act occurred. These provisions offer no support for the majority’s position that in a criminal trial the factfinder is precluded from determining whether a commodity was in fact listed on the CCL at the time of the alleged criminal violation.
The majority’s reliance on United States v. Moller-Butcher, 560 F.Supp. 550 (D.Mass.1983) is similarly misplaced. The district court in Moller-Butcher makes clear the distinction between judicial review of (1) whether the Secretary actually did place a commodity on the CCL — a question of fact — and (2) whether the Secretary should have placed a commodity on the list — a question of advisability:
Defendants contend that the grand jury must allege and the government must prove not only that the particular goods that defendants are accused of exporting without a license are listed on the CCL, but also that they fall within the category of goods which make a significant contribution to another country.
Moller-Butcher, 560 F.Supp. at 552. In making this distinction, the district court in Moller-Butcher, contrary to the majority’s position, appears to assume that the first question, whether particular commodities are on the CCL, is a question for the jury. In any event, the holding in Moller-Butcher goes to whether the Secretary “has the ultimate authority to decide which goods are included on the list and how they are classified,” id., and not whether the goods were in fact on the CCL.
The majority concludes that “when the Secretary has issued a license or order, the factfinder is instructed to accept it as law, without considering its advisability.” Majority opinion at page 1473 (emphasis added). Assuming arguendo that this conclusion is a correct reading of the Act, it still does not follow that at a criminal trial the Secretary’s determination that a commodity had been placed on the CCL must, as a matter of law, be accepted by the jury. Placing this question before the jury does not challenge the advisability of the Secretary’s initial decision to list a commodity on the CCL. Therefore, requiring the government to prove at a criminal trial that the Spawrs’ laser mirror was on the CCL at the relevant time would not “undermine the Secretary’s authority” because such a requirement in no way challenges the Secre*1475tary’s initial decision to place commodities on the CCL and to issue or refuse to issue licenses accordingly.
In addition to its lack of support in the text of the Act, in its legislative history, and in the case law interpreting it, the majority’s reading of the Act also suffers from constitutional infirmities. The Fifth Amendment right to due process and the Sixth Amendment guarantee of a criminal defendant’s right to trial by jury require not only that the government prove every element of a criminal offense beyond a reasonable doubt but also that each element be submitted to an impartial trier of fact. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) (“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); see also Sandstrom v. Montana, 442 U.S. 510, 521-22, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979) (conclusive presumption conflicts with the overriding presumption of innocence and would invade the factfinding function assigned solely to the jury in a criminal case) (citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)). Whether the laser mirrors exported by the Spawrs were in fact on the CCL at the time they were exported is an essential element of the offenses allegedly committed by them. It was for the jury, not the Secretary of Commerce, to determine whether the Spawrs’ laser mirrors were in fact an item listed on the CCL.
Accordingly, I respectfully dissent.