FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-50148

v. D.C. No.  8:05-cr-00293- CHI MAK, aka Seal A; Jack Mak;

CJC-1 Taichi Mak; Daichi Mak; Dazhi

Mai, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted

April 12, 2012—Pasadena, California

Filed June 21, 2012

Before: Betty B. Fletcher, Andrew J. Kleinfeld, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

7371
COUNSEL

Sean K. Kennedy, Kurt Mayer (argued), Los Angeles, California, for the defendant-appellant.

Andre Birotte, Jr., Denise D. Willett, Gregory W. Staples

(argued), Santa Ana, California, for the plaintiff-appellee.

OPINION

M. SMITH, Circuit Judge:

Chi Mak (Mak) appeals his jury conviction of conspiring to

violate export control laws and attempting to export a defense

article to the People’s Republic of China, in violation of the

Arms Export Control Act (AECA), 22 U.S.C. § 2778, as

implemented by the International Traffic in Arms Regulations

(ITAR), 22 C.F.R. §§ 120-30. Following his conviction, Mak

moved for a new trial, challenging the Government’s failure

to timely disclose its intended use of a particular expert witness, and claiming that the AECA is unconstitutionally vague.

The district court denied Mak’s motion. Mak now appeals his

conviction, claiming violations of his rights under the First,

Fifth, and Sixth Amendments, and the Ex Post Facto Clause.

We affirm the district court because: (1) the AECA and its

implementing regulations do not violate Mak’s First Amendment rights since the AECA is substantially related to the protection of an important governmental interest; (2) the court’s

instructions to the jury concerning technical data did not violate Mak’s Due Process rights because they expressly required

the Government to prove that the documents at issue are not

in the public domain; (3) the court’s instructions to the jury

on willfulness did not violate Mak’s Sixth Amendment rights

because they did not prevent the jury from fully deliberating

as to whether Mak acted willfully, as required by the AECA;

7374 UNITED STATES v. MAK
and (4) the documents at issue were covered by the United

States Munitions List (USML) at the time Mak attempted to

export them and, therefore, his conviction does not violate the

Ex Post Facto Clause. 

STATUTORY SCHEME

The AECA regulates the export and import of “defense

articles” and “defense services” out of and into the United

States. 22 U.S.C. § 2778. Section 2778(a) of the AECA

authorizes the President: (1) to designate those defense articles and services to be included on the USML; (2) to require

licenses for the export of items on the USML; and (3) to promulgate regulations for the import and export of such items

on the USML. Id. The Directorate of Defense Trade Controls

(DDTC), within the United States Department of State, promulgates regulations under the AECA, known as ITAR. 22

C.F.R. § 120-30. ITAR defines the USML, which consists of

twenty-one categories of designated defense articles and services that are subject to licensing controls under the AECA.

Id. at § 121.1. Unless an exception applies, ITAR requires a

license for the export of USML articles and related technical

data. 22 C.F.R. §§ 123-125.

ITAR defines “technical data” as “[i]nformation . . . which

is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or

modification of defense articles.” 22 C.F.R. § 120.10(a)(1).

This definition excludes any information in the “public

domain,” which is defined as follows:

Public domain means information which is published

and which is generally accessible or available to the

public:

(1) Through sales at newsstands and bookstores; 

UNITED STATES v. MAK 7375
(2) Through subscriptions which are available without restriction to any individual who desires to

obtain or purchase the published information;

(3) Through second class mailing privileges granted

by the U.S. Government;

(4) At libraries open to the public or from which the

public can obtain documents;

(5) Through patents available at any patent office;

(6) Through unlimited distribution at a conference,

meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;

(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published

form) after approval by the cognizant U.S. government department or agency (see also § 125.4(b)(13)

of this subchapter);

(8) Through fundamental research in science and

engineering at accredited institutions of higher learning in the U.S. where the resulting information is

ordinarily published and shared broadly in the scientific community. Fundamental research is defined to

mean basic and applied research in science and engineering where the resulting information is ordinarily

published and shared broadly within the scientific

community, as distinguished from research the

results of which are restricted for proprietary reasons

or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:

(i) The University or its researchers accept other

restrictions on publication of scientific and technical

information resulting from the project or activity, or

7376 UNITED STATES v. MAK
(ii) The research is funded by the U.S. Government and specific access and dissemination controls

protecting information resulting from the research

are applicable. 

Id. at § 120.10(a)(5); Id. at § 120.11(a).

The AECA provides that the State Department’s designation of items as defense articles “shall not be subject to judicial review.” 22 U.S.C. § 2778(h). After an item is designated

on the USML, the AECA and ITAR require any person wishing to export that item to apply for a license. 22 C.F.R.

§ 120.4 (requiring that license “[r]equests shall identify the

article or service, and include a history of this product’s

design, development, and use”). The denial of a license may

be appealed administratively. 22 C.F.R. § 120.4(e)-(g). Thus,

the elements of an export control violation under 22 U.S.C.

§ 2778 are as follows: the (1) willful (2) export or attempted

export (3) of articles listed on the USML (4) without a

license. Kuhali v. Reno, 266 F.3d 93, 104 (2d Cir. 2001).

FACTUAL AND PROCEDURAL BACKGROUND

Mak was a senior engineer for Power Paragon, Inc. (Paragon), a defense contractor in Anaheim, California, that

designs and manufactures electrical systems for U.S. Navy

combat ships and submarines. On October 28, 2005, Tai Mak,

Mak’s brother, and his sister-in-law, Fuk Li, were arrested at

the Los Angeles International Airport prior to boarding a

flight to Hong Kong. When they were arrested, the Government seized a CD from their luggage. In addition to several

innocuous files, the CD contained three encrypted files Mak

had given to his brother containing export-controlled naval

technology, including documents authored by Mak regarding

the Quiet Electric Drive project (QED document), a project

intended to decrease the signature noise data emitted by U.S.

Navy submarines and warships—a submarine’s greatest vulnerability. The Government also discovered a second docuUNITED STATES v. MAK 7377
ment authored by Mak, discussing solid-state power switches

(Solid State document). 

Both the QED document and the Solid State document pertained to technology used on U.S. Navy ships and submarines.

These documents fall under Category VI(g) of the USML,

which covers “[t]echnical data (as defined in § 120.10) . . .

directly related to the defense articles enumerated in paragraphs (a) though (f) of this category.” 22 C.F.R.

§ 121.1(VI)(g). Paragraph (a) of Category VI lists

“[w]arships, amphibious warfare vessels, landing craft, mine

warfare vessels, patrol vessels and any vessels specifically

designed or modified for military purposes.” 22 C.F.R.

§ 121.1(VI)(a).

Shortly after the arrests of Tai Mak and Fuk Li, the Government arrested Mak and his wife, Rebecca Chiu. Following

Mak’s arrest, the police conducted a search of his home,

where they discovered numerous other documents containing

protected military technology. Mak was indicted and ultimately charged with five counts: one count of conspiracy to

violate the AECA, two counts of attempting to violate the

AECA (for the QED document and the Solid State document,

respectively), one count of operating as an agent of a foreign

government in the United States, and one count of lying to a

federal agent.

Mak’s trial commenced on March 27, 2007. Prior to the

trial, the Government filed a motion in limine seeking to preclude Mak from challenging the Secretary of State’s determination that the charged documents constituted “technical

data” on the ground that 22 U.S.C. § 2278(h) expressly prohibits judicial review. In response, Mak conceded that the

DDTC’s determination was not reviewable. He argued,

instead, that the status of the documents as technical data, and

whether they fall within the public domain exception, was

also critical to the issue of his willfulness—that is, whether he

knowingly or intentionally violated a known legal duty not to

7378 UNITED STATES v. MAK
export the documents. The trial court did not rule on the Government’s motion, but both parties proceeded to trial based on

the distinction between the Secretary’s determination and

Mak’s subjective belief regarding the status of the documents.

At the close of trial, the jury was instructed as follows in

the Court’s Instruction 15:

All technical data is subject to export control.

Technical data is information required for the design,

development, production, manufacture, assembly,

operation, testing, or modification of defense articles. Technical data does not include information in

the public domain.

You are instructed that the information in the

Solid State document and the Q.E.D. document is

required for the design, development, production,

manufacture, assembly, operation, testing, or modification of defense articles. You must accept this fact

as true, regardless of whether you heard any witness

testify to the contrary.

The Court’s Instruction 16 reads as follows: “[t]he government bears the burden of proving beyond a reasonable doubt

that the information contained in the Q.E.D. document and the

Solid State document was not in the public domain.” 

Regarding count two for the Solid State document, the

Court’s Instruction 19 directed:

As mentioned, the Solid-State Document is information necessary for the design, development, production, manufacture, assembly, operation, testing or

modification of defense articles. However, the SolidState Document is not “technical data” if all the

information contained in the document was in the

public domain. The government must prove beyond

UNITED STATES v. MAK 7379
a reasonable doubt that information in the SolidState Document was not in the public domain. 

The Court’s Instruction 22 regarding the QED document was

the same as its Instruction 19, except that it substituted the

words “QED Document” for “Solid-State Document.” 

The Court’s Instruction 18 and Instruction 21 listed the elements of Count 2 (attempted export of the QED Document)

and Count 3 (attempted export of the Solid State Document),

including the following: 

In order for the defendant to be found guilty of this

charge, the government must prove each of following elements beyond a reasonable doubt.

First, information contained in the [charged document] is technical data.

Second, the defendant intended to willfully export

from the United States the [charged document] without obtaining a license from the Department of State

to export the [charged document]. 

The Court’s Instructions 20 and 23 addressed the specific

intent required for a defendant to violate the AECA. They

explained that the Government had the burden to prove

beyond a reasonable doubt that Mak acted willfully and that

“[a]n act is done willfully if done voluntarily and intentionally

with the purpose of violating a known legal duty.” Instructions 20 and 23 clarified that the Government was not

required to prove that “the defendant had read, was aware of,

or had consulted the specific regulations governing his activities,” and that in “making a determination of whether the

defendant had the requisite intent, [the jury] should consider

the totality of all relevant circumstances.” Mak objected to the

district court’s proposed Instructions 20 and 23 and counsel

engaged in a long discussion with the court regarding those

7380 UNITED STATES v. MAK
instructions. Mak did not proffer proposed alternative language, despite the court’s invitation to do so. Before the jury

was instructed, the court dismissed count four. On May 7,

2007, the jury found Mak guilty on all of the remaining

counts. On March 24, 2008, Mak was sentenced to 293

months in custody, to be followed by three years of supervised release. 

After the trial, Mak moved for a new trial on two grounds:

(1) the Government’s untimely disclosure of an expert witness

violated the disclosure requirements of Federal Rule of Criminal Procedure 16; and (2) the portion of the AECA under

which he was convicted was unconstitutionally vague. On

January 7, 2008, the district court denied Mak’s motion. Mak

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

We review the constitutionality of a statute as a matter of

law de novo. United States v. Sutcliffe, 505 F.3d 944, 953 (9th

Cir. 2007). We review the construction or interpretation of a

statute de novo. United States v. Norbury, 492 F.3d 1012,

1014 (9th Cir. 2007). However, constitutional issues not originally raised at trial are reviewed for plain error. United States

v. Santiago, 46 F.3d 885, 890 (9th Cir. 1995). Plain error

review involves four prongs: (1) there must be an error, (2)

“the legal error must be clear or obvious, rather than subject

to reasonable dispute,” (3) the error “must have affected the

appellant’s substantial rights, which in the ordinary case

means he must demonstrate that it affected the outcome of the

district court proceedings,” and (4) if the first three prongs are

satisfied, we have the discretion to remedy the error only if it

“seriously affects the fairness, integrity or public reputation of

the judicial proceedings.” Puckett v. United States, 556 U.S.

129, 135 (2009) (internal quotation marks omitted). 

UNITED STATES v. MAK 7381
We review de novo whether the district court’s jury instructions misstated or omitted an element of the charged offense

and review the district court’s formulation of jury instructions

for abuse of discretion. United States v. Hofus, 598 F.3d 1171,

1174 (9th Cir. 2010), cert. denied, 131 S. Ct. 364 (2010). We

review de novo whether the jury instructions adequately cover

the defense’s theory of the case. United States v. Romm, 455

F.3d 990, 1002 (9th Cir. 2006). Federal Rule of Criminal Procedure 30(d) requires a defendant to “inform the court of the

specific objection and the grounds for the objection” before

the jury retires to deliberate. Fed. R. Crim. P. 30(d). Where

a defendant fails to object to the court’s instruction, review is

for plain error. Hofus, 598 F.3d at 1175.

Ex post facto challenges are reviewed de novo. United

States v. Canon, 66 F.3d 1073, 1077 (9th Cir. 1995). However, an ex post facto claim raised for the first time on appeal

is reviewed for plain error. United States v. Baker, 10 F.3d

1374, 1394 (9th Cir. 1993), overruled on other grounds by

United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).

DISCUSSION

I. First Amendment

[1] Before weighing the merits of Mak’s First Amendment

claims, we must first address the standard of review for those

claims. Nowhere in Mak’s motion for a new trial, nor in his

supporting memorandum, does he cite the First Amendment.

He challenged only the broader constitutional issue of vagueness before the district court. Accordingly, while the Government had some notice of Mak’s constitutional “vagueness”

claims, his First Amendment claims are raised for the first

time on appeal. Thus, we review Mak’s First Amendment

claims for plain error. Santiago, 46 F.3d at 890.

“(G)eneral regulatory statutes, not intended to control the

content of speech but incidentally limiting its unfettered exer7382 UNITED STATES v. MAK
cise, have not been regarded as the type of law the First or

Fourteenth Amendment forbade Congress or the States to

pass, when they have been found justified by subordinating

valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.” Konigsberg v. State Bar, 366 U.S.

36, 50-51 (1961). To determine whether a restriction is

content-based, we must determine “whether the government

has adopted a regulation of speech ‘without reference to the

content of the regulated speech.’ ” Madsen v. Women’s

Health Ctr., Inc., 512 U.S. 753, 763 (1994) (quoting Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989)). “The principal inquiry in determining content neutrality . . . is whether

the government has adopted a regulation of speech because of

the message it conveys.” Ward, 491 U.S. at 791. 

If the Government restricts the dissemination of writing

based on content, then the Government’s regulation is subject

to strict scrutiny. Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 790 (1988). A restriction that is not

content-based and only incidentally restricts expressive activity is subject to intermediate scrutiny. United States v.

O’Brien, 391 U.S. 367 (1968). “A content-neutral regulation

will be sustained under the First Amendment if it advances

important governmental interests unrelated to the suppression

of free speech and does not burden substantially more speech

than necessary to further those interests.” Turner Broad. Sys.,

Inc. v. FCC, 520 U.S. 180, 189 (1997). 

[2] Here, the AECA prohibits export without a license of

items on the USML without regard to content or viewpoint;

it was intended to authorize the President to control the import

and export of defense articles and defense services in “furtherance of world peace and the security and foreign policy of

the United States.” 22 U.S.C. § 2778(a)(1). Mak’s arguments

that the AECA and its implementing regulations are contentbased mistakenly focus on the nature of the content incidentally restricted, and not the nature of the statute. Cf. KonigsUNITED STATES v. MAK 7383
berg, 366 U.S. at 50-51. The purpose of the AECA does not

rest upon disagreement with the message conveyed. See generally Cohen v. California, 403 U.S. 15, 18-19 (1971). ITAR

defines the technical data based on its function and not its

viewpoint. See 22 C.F.R § 120.10(a)(1) (defining technical

data as information “required for the design, development,

production, manufacture, assembly, operation, repair, testing,

maintenance or modification of defense articles”). Accordingly, we find that the AECA and its implementing regulations are content-neutral.

[3] Because the AECA and its implementing regulations

are content-neutral, we apply the intermediate scrutiny standard under O’Brien. 391 U.S. 367 (1968). The AECA and its

implementing regulations satisfy O’Brien because, together,

they substantially advance important governmental interests

unrelated to the suppression of expression. 391 U.S. at

376-77; see also Haig v. Agee, 453 U.S. 280, 307 (1981). We

have long-recognized the “unquestionable legitimacy” of the

Government’s important interest in regulating the international dissemination of military information. United States v.

Edler Indus., Inc., 579 F.2d 516, 520, 522 (9th Cir. 1978); see

also United States v. Posey, 864 F.2d 1487, 1496 (9th Cir.

1989). The technical data regulations substantially advance

that interest, unrelated to the suppression of expression,

because they set forth clear procedures for seeking approval

for export licenses and policies for limiting USMLdesignation. See 22 C.F.R § 120.10(a)(1), (3) (the determination of designation of articles or services turns on whether an

item is “specifically designed, developed, configured,

adapted, or modified for a military application, and has significant military or intelligence applicability such that control

under this subchapter is necessary”). Moreover, the restrictions do not burden speech more than is necessary to further

the Government’s interest. Indeed, ITAR makes a point to

specifically exclude numerous categories from designation,

such as general scientific, mathematical, or engineering

papers. See Holder v. Humanitarian Law Project, 130 S. Ct.

7384 UNITED STATES v. MAK
2705, 2728-29 (2010) (upholding material support statute

against First Amendment challenge where the statute provided narrowing definitions to avoid infringing upon First

Amendment interests). Accordingly, guided by O’Brien, we

hold that the AECA and its implementing regulations withstand intermediate scrutiny because they substantially

advance the Government’s important interest in the regulation

of international dissemination of arms information. 391 U.S.

at 376-77.

We note that we have repeatedly upheld the constitutionality of the AECA, and its predecessor, the Mutual Security Act

(MSA), under the First Amendment. See United States v.

Posey, 864 F.2d 1487 (9th Cir. 1989); United States v. Edler

Indus., Inc., 579 F.2d 516, 520 (9th Cir. 1978). In Edler, we

held,

[T]he federal government undeniably possesses the

power to regulate the international arms traffic . . .

As a necessary incident to the power to control arms

export, the President is empowered to control the

flow of information concerning the production and

use of arms. The authority to regulate arms traffic

would be of negligible practical value if it encompassed only the exportation of particular military

equipment but not the exportation of blueprints specifying the construction of the very same equipment.

Edler, 579 F.2d at 520. We upheld the MSA because it was

substantially related to the Government’s strong interest in

controlling “the conduct of assisting foreign enterprises to

obtain military equipment and related technical expertise.” Id.

at 520-21. In Posey, we rejected a First Amendment challenge

to the AECA on the grounds that “national security concerns

may be more sharply implicated by the export abroad of military data than by domestic disclosure of such data.” 864 F.2d

at 1496-97. We held that the Government could restrict the

flow of data on the USML, through the AECA, because of its

UNITED STATES v. MAK 7385
strong, legitimate interest in regulating the export of military

information. Id.; see also Edler, 579 F.2d at 520. 

Mak contends that the AECA and its implementing regulations violate the First Amendment both as a prior restraint and

for being unconstitutionally overbroad. We disagree. We have

repeatedly rejected First Amendment challenges to the

AECA, its implementing regulations, and its predecessor, the

MSA; Edler, 579 F.2d at 520, and Posey, 864 F.2d at 1496,

control. As Edler required, the AECA “delineate[s] narrowly

the scope of information subject to arms controls.” 579 F.2d

at 521. The AECA and ITAR specifically carve out exceptions to the law for the types of information that are subject

to the highest levels of First Amendment protection, for

example, published scholarly works. 22 C.F.R. § 120.11(a).

The AECA also satisfies Edler’s requirement that the defendant “know or have reason to know that [the exported] information is intended for the prohibited use” by requiring the

government to prove willfulness. See Edler, 579 F.2d at 521;

22 U.S.C. § 2778(c). Accordingly, we hold that under Edler

and Posey, the AECA and its implementing regulations satisfy the requirements of First Amendment scrutiny. Posey,

864 F.2d at 1496; Edler, 579 F.2d at 520

II. Technical Data Jury Instructions

[4] Mak next challenges the jury instructions on “technical

data” on the ground that they relieved the Government of its

burden of proving that the documents did not fall within the

public domain. The Court’s Instructions 15, 16, 19 and 22

pertain to technical data and the public domain. Because Mak

objected to the jury instructions on the public domain at trial,

we review his challenge de novo. Hofus, 598 F.3d at 1174.

The Court’s Instruction 15 told the jury that “all technical

data is subject to export control” and that “[t]echnical data is

information required for the design, development, production,

manufacture, assembly, operation, testing, or modification of

7386 UNITED STATES v. MAK
defense articles.” The Court’s Instructions 15, 19, and 22

emphasized to the jury that “technical data” does not include

information in the public domain. The district court’s instructions made clear that the definition of technical data has two

parts: it is information which is (1) “required for the design,

development, production, manufacture, assembly, operation,

repair, testing, maintenance, or modification of defense articles;” that (2) does not fall in the public domain. 22 C.F.R.

§ 120.10(a)(1); 120.10(a)(5). From the court’s instructions, it

was clear that information in the public domain cannot constitute “technical data.”

[5] Mak contends that the district court’s instructions on

technical data constituted reversible error because the court’s

instructions removed from the jury’s consideration whether

the QED and Solid State documents were in the public

domain. Specifically, Mak contends that because the Court’s

Instructions 19 and 22 told the jury that the QED and Solid

State documents were information which was “required for

the design, development, production, manufacture, assembly,

operation, repair, testing, maintenance, or modification of

defense articles,” the instructions relieved the Government of

its burden to prove the documents were not in the public

domain. We disagree with Mak’s circuitous logic. The technical data instructions clearly identified the two elements of

technical data, and then broke down the Government’s relative burdens concerning each element. The first element was

inclusive, describing the different types of information that

could qualify as technical data—“Information which is

required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or

modification of defense articles.” The second element was

exclusive, disqualifying from the designation as technical data

any information that fell within the public domain. Because

the district court specifically instructed the jury that any information in the public domain cannot be “technical data,” we

find that the district court did not err in its jury instructions

concerning technical data. 

UNITED STATES v. MAK 7387
III. Jury Instructions and Deliberations on Willfulness

Every criminal defendant has a constitutional right to a

“meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also

United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010)

(grounding right to a meaningful defense in the Fifth and

Sixth Amendments). An accused can defend against a charge

that requires the Government to prove willfulness by presenting evidence that he did not voluntarily or intentionally violate a known legal duty. Cheek v. United States, 498 U.S. 192,

202-03 (1991). 

[6] Mak contends that the district court deprived him of

full jury deliberations on willfulness on the following three

grounds: (1) the district court’s refusal to accept his proposed

jury instruction deprived him of his Sixth Amendment right

to present a complete defense; (2) the district court’s willfulness instruction deprived Mak of a jury determination as to

whether he voluntarily or intentionally violated a known legal

duty when he attempted to send the QED and Solid State documents to China; and (3) the district court erred in its failure

to instruct the jury on the basic marketing information and

general system descriptions exceptions to technical data. We

disagree, and we address each of Mak’s arguments in turn.

We review for plain error Mak’s claim that the court’s

instructions deprived him of his Sixth Amendment right to a

meaningful defense.1Santiago, 46 F.3d at 890. Specifically,

1

In the district court, Mak objected to the Court’s Instruction No. 23

only on the ground that it was argumentative. Mak did not object to the

instruction on the ground that it limited the jury’s consideration of evidence suggesting that Mak did not believe the documents were technical

data. Nor did Mak object to the instruction on Sixth Amendment grounds.

Mak’s single “argumentative” objection was insufficient to put the court

on notice of his defense theory challenge or his constitutional challenge.

Indeed, after the final instruction was presented to Mak, he was even

7388 UNITED STATES v. MAK
Mak contends that the district court erred when it rejected the

following proposed jury instruction:

Information which is in the public domain does not

constitute technical data and therefore is not subject

to the export controls of the United States Munitions

List. Even if you determine that any of the items at

issue in Counts two, three or four were not in the

Public Domain, you the jury must consider whether

Mr. Chi Mak believed the items were in the Public

Domain in order to determine whether he willfully

and knowingly exported defense articles. 

Although the court must instruct on a defense theory if it has

a basis in law and fact, “it is not reversible error to reject a

defendant’s proposed instruction on his theory of the case if

other instructions, in their entirety, adequately cover that

defense theory.” United States v. Mason, 902 F.2d 1434, 1438

(9th Cir. 1990). 

We find that the district court adequately instructed the jury

on Mak’s defense theory regarding specific intent. Specifically, in the Court’s Instructions 20 and 23, the court

informed the jury that the Government had the burden to

prove that Mak had acted “willfully” “with the purpose of

violating a known legal duty” in attempting to export the

QED and Solid State documents. In the same instructions, the

district court emphasized, however, that the Government was

not required to prove that “the defendant had read, was aware

of, or had consulted the specific regulations governing his

activities,” but rather, in its determination of intent, the jury

invited by the court to further supplement the instruction if he believed the

jury would need further direction on the definition of “violating a known

legal duty”—Mak failed to offer any supplemental instruction despite the

court’s invitation. Accordingly, we review his claim on appeal for plain

error. Hofus, 598 F.3d at 1175; see also United States v. Pineda-Doval,

614 F.3d 1019, 1025 (9th Cir. 2010). 

UNITED STATES v. MAK 7389
must consider “the totality of the circumstances.” Both

instructions directed the jury to deliberate on whether Mak

possessed the specific intent to violate the AECA. Because

Mak’s theory of the case was already reflected in the entirety

of the court’s other instructions, the court was not obligated

to accept Mak’s proposed instruction. Mason, 902 F.2d at

1438. Accordingly, we hold that the court’s instruction did

not prevent Mak from providing a meaningful defense. 

Mak did not raise his claim that the jury instructions

removed the issue of willfulness from the jury’s consideration

at trial; therefore we also review this challenge for plain error.

Hofus, 598 F.3d at 1175. Mak contends that the court violated

his right to a jury determination of his willfulness. We disagree. Mak ignores the fact that the district court permitted

him to present defense witnesses (including experts and

Mak’s co-authors) who contended that the QED and Solid

State documents were not technical data, and to argue that the

evidence showed that the defendant did not believe the documents required an export license. 

[7] Mak also argues that the language of the court’s

instructions permitted the Government to make an improper

argument and did not allow him to effectively respond to that

argument. In closing argument, the prosecutor said: “[Mak’s

witnesses] tried hard to say that what we’re dealing with here,

in the QED document, is not technical data. You just heard

from the court that whatever those witnesses said, this is technical data.” Considered out of context, this appears to be an

objectionable and inaccurate characterization of the jury

instructions, which told the jurors that they had to accept that

the QED and Solid State documents contained information

“required for the design, development, production, manufacture, assembly, operation, testing, or modification of defense

articles.” As we have noted, the court’s instructions did not

conclusively state that the information in the QED and Solid

State documents was “technical data.” However, the thrust of

the Government’s argument, in which that objectionable state7390 UNITED STATES v. MAK
ment was made, concerned the credibility of Mak’s witnesses

who testified that they believed the information in the QED

document was either in the public domain or not related to

submarines. Specifically, the Government focused on Mak’s

failure to address the fact that the information in the QED

document was not disclosed in the most relevant patent—the

most likely way in which it would have fallen within the public domain. The Government then explained that the QED

document plainly described, and sometimes even illustrated,

the submarine technology that served as the focus of the QED

project—clearly falling under Paragraph (a) of Category (VI)

of the USML. 22 C.F.R. § 121.1(VI)(a). These arguments

related to the Government’s claim that Mak must have known

that the QED document pertained to submarine technology

because just four days before he attempted to send the QED

document to China he had emailed another Paragon employee

about a submarine-related question for the QED project. The

Government thus argued that the jury should infer that Mak

knew the QED document was “technical data” because he

knew it related to the development of submarine technology.

The jury instructions on public domain and willfulness left

Mak free to argue that the evidence, including the testimony

of the witnesses he presented, did not support this inference.

The instructions did not remove the issue of Mak’s willfulness from the jury’s consideration, nor did they violate his

Sixth Amendment right to present a meaningful defense.

[8] Even if Mak’s right to present a meaningful defense

was compromised, he cannot show the requisite prejudice

because there was overwhelming evidence that he knew his

actions were illegal. See United States v. Olano, 507 U.S. 725,

741 (1993) (defendant bears burden of showing that violation

would have affected the outcome of the proceedings under

third prong of plain error review). Indeed, there was ample

evidence of Mak’s extensive export compliance training and

knowledge, as well as evidence that he knew exactly what

was contained in the QED and Solid State documents.

Accordingly, we hold that the court did not plainly err in its

UNITED STATES v. MAK 7391
instructions concerning willfulness, nor did it deprive Mak of

his Sixth Amendment right to present a meaningful defense.

Finally, Mak challenges the district court’s failure to

instruct the jury on the general systems descriptions and basic

marketing information exceptions to technical data, under the

Sixth Amendment. This constitutional challenge was not

raised at the district court, nor did Mak proffer as a defense

at trial that the information in the charged documents was

generally-taught scientific information or basic marketing

information. Accordingly, we review his challenge for plain

error. Santiago, 46 F.3d at 890. 

Mak never proffered as a defense that the information in

the charged documents was generally-taught scientific information or basic marketing information; therefore, the district

court was under no obligation to include the exceptions in its

instructions. United States v. Freter, 31 F.3d 783, 788 (9th

Cir. 1994). Moreover, the jury’s rejection of Mak’s public

domain argument demonstrates that the omission of the aforementioned exceptions from the technical data instructions

could not have affected the outcome of the proceedings as

required under plain error review. Ultimately, Mak can neither show that the omission of this jury instruction clearly and

obviously deprived him of a defense, nor that it prejudiced his

substantial rights. Olano, 507 U.S. at 741. We hold that the

district court did not plainly err because the three exceptions

not included by the court are not elements of the offense, and

therefore are not requisite components of the jury instructions.

IV. Ex Post Facto Clause 

Article I, Section 9, paragraph 3 of the United States Constitution provides that “[n]o . . . ex post facto [l]aw shall be

enacted.” A law violates the Ex Post Facto Clause “only if it

criminalizes conduct that was not a crime when it was committed, increases the punishment for a crime beyond what it

was at the time the act was committed, or deprives a person

7392 UNITED STATES v. MAK
of a defense available at the time the act was committed.”

Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995). 

[9] Mak raises his Ex Post Facto Clause claim for the first

time on appeal, so we review it for plain error. Baker, 10 F.3d

at 1394. Mak argues that his prosecution and imprisonment

violated the Ex Post Facto Clause because the Solid State and

QED documents were certified as “technical data” on the

USML between eight and eleven months, respectively, after

he was arrested. Mak argues the documents only became

criminally sanctionable because of the technical data certification secured by the Government after he was arrested, and

therefore his prosecution violated the Ex Post Facto Clause.

[10] Mak’s argument is unpersuasive because he assumes

that technical data is not included on the USML until it is certified. This is incorrect. The USML consists of a wide array

of categories of defense articles and technology that are not

certified in subcategories, nor need they be. The USML does

not list particular documents because so many qualifying documents exist. Indeed, it would likely be impossible for the

USML to be continuously updated with every new technology

and every permutation of existing technology. The Government’s certification in this case served only to confirm that

the documents were covered by the USML at the time of the

offense. The QED and Solid State documents were clearly

covered by the USML at the time of Mak’s arrest and conviction because they directly related to “[w]arships, amphibious

warfare vessels, landing craft, mine warfare vessels, patrol

vessels and any vessels specifically designed or modified for

military purposes.” 22 C.F.R. § 121.1(VI)(a). Accordingly,

because the documents fell within a category included by the

USML at the time of the offense, his prosecution and conviction does not violate the Ex Post Facto Clause.

CONCLUSION

For the foregoing reasons, we AFFIRM Mak’s conviction.

UNITED STATES v. MAK 7393