Court Excludes Testimony on Commodity Jurisdiction Decisions in Export Control Case

Parts of the expert testimony submitted by the U.S. in a criminal export control case should be excluded from the trial because the experts relied on State Department commodity-jurisdiction determinations prepared outside the court, the U.S. District Court for the Western District of Kentucky said July 31. The court said the defendants didn't have a chance to cross-examine the State Department officials who prepared the determinations because they didn't offer testimony during trial.

The suit is against defense contractor Quadrant Magnetics, along with several of its employees, for allegedly violating export controls by sending weapons schematics to China. Quadrant was accused of exporting controlled technical data to a Chinese company without a license in violation of the International Traffic in Arms Regulations (see 2407150060). As part of its case, the government sought to include testimony from two experts, Alex Douville, an employee in the Directorate of Defense Trade Control's licensing office, and Steven Burton, a Defense Department employee.

Quadrant moved to exclude parts of its testimony under the Confrontation Clause of the U.S. Constitution's 6th Amendment, which says an accused party gets the right to be confronted with witnesses against them. Part of this rule says that the testimony of out-of-court witnesses will be excluded "unless the witness is unavailable and the defendant had a prior opportunity to cross-examine them."

In this case, Quadrant said that parts of Douville's and Burton's testimony should be tossed, since they "repeat the testimony of absent witnesses," and the company's counsel didn't get a chance to cross-examine the drafter of the commodity jurisdiction determinations. Judge David Hale agreed, finding the determinations "testimonial."

Hale said the determinations "are formal written opinions by the Department of State which, according to the ITAR, have the power to remove potential defense articles from the U.S. Munitions List." As a result, any commodity-jurisdiction determinations may only be admitted "if the officer who prepared the CJD is called to testify at trial or upon a showing that the officer is unavailable to testify and the defendants have had a prior opportunity to confront them."