WASHINGTON – A federal appeals court has upheld the convictions of two men who tried to buy military products from a Maryland technology company and illegally export them to China.
The 4th U.S. Circuit Court of Appeals, in a published opinion filed Wednesday, rejected the men’s arguments that they were entrapped in a government sting and that the law banning the export of military products is unconstitutionally vague.
Eugene You-Tsai Hsu of Missouri and David Tzuwei Yang of California were captured in a 2001 U.S. Customs Service operation that began when Hsu tried to buy an encryption device from Mykotronx Inc. in Columbia for export to China.
The Mykotronx employee who took Hsu’s call referred him to a salesman for the company’s products, Daniel Stevenson — who in reality was Dan Supnick, an undercover Customs Service agent.
The agent repeatedly warned Hsu that it is illegal to export the unit, which is used to secure digital communication and is considered a “defense article,” to China or to another country if China was the ultimate destination. But he said he would work with Hsu “off the record.”
After Supnick said he would not ship the device to China, Hsu arranged for Yang, a freight forwarder, to ship it to Singapore where another man was waiting to ship it to China. Hsu and Yang were arrested in 2001 and convicted in U.S. District Court in Baltimore.
Hsu was sentenced to 41 months and Yang is serving 30 months.
On appeal, Hsu’s attorney argued that the 60-year-old importer of Chinese tools had wandered into a government trap that is set for “sophisticated arms dealers.”
“When he made the initial contact about the machine, he had no idea it was on the export restriction list,” said Richard Gordin, the attorney. “If the person on the phone would have told him they would not sell it to him, it would have ended there.”
Gordin said the encrypting device was one of several objects on a list that included innocuous goods like John Deere farm equipment, which Hsu was looking into buying for an associate in China.
He also said that Hsu, an immigrant from Taiwan, was targeted because of his race.
“But for his accent, he would have been told . . . that the machine was not available,” Gordin said.
A three-judge panel of the appellate court disagreed, writing that the law was not vague as it applied to Hsu and Yang because they were informed that exporting the device is illegal.
They also ruled that the district court was correct in refusing an entrapment instruction. Although Hsu did not approach the Customs agent with criminal intent, the agent did not induce him to commit the crime either, the court ruled.
Gordin said he is reviewing the court’s decision and may appeal. Attorneys for Yang and the U.S. Attorney’s Office in Baltimore did not return phone calls on the ruling.
-30- CNS 04-15-04