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Arms Control Export Act conviction upheld with sufficient evidence

Wenxia Man appealed her conviction and sentence for conspiracy to export defense articles without a license in violation of the Arms Control Export Act 22 U.S.C. 2778. The conviction arose from her participation in a series of discussion with Xingsheng Zhang, a Chinese operative, and an undercover agent with the Department of Homeland Security, Jerry Liu, about how to purchase and export to china military aircraft engines, a military drone, and related technical data. Although the sale never occurred the United States charged Man with conspiring to violate the Act. In her appeal she challenged her conviction on the grounds that the evidence against her was insufficient to establish a conspiracy and that she was entrapped.

In arguing the government failed to prove that she conspired to violate the Act she first argued that she never entered into a conspiratorial agreement with Zhang or anyone else to obtain purchase or export defense articles. She contended that proposals made by Liu were rejected by Zhang and the parties never advanced beyond mere discussion or ever finalizing an agreement. At best, she argued, it showed that she and Zhang agree to submit inquiries about products and negotiate an agreement but did not have an agreement. The court of appeals rejected this argument finding that Man and Zhang agreed to export unlawfully the items charged in the indictment and that this agreement was not wholly conditioned on Liu’s participation. It found the record supported the reasonable inference that Man and Zhang reached an independent agreement to acquire the engines and drones from any available source and that the duo would have maintained a partnership or joint venture in addition to the one that they proposed to Liu.

Man also claimed that the government failed to prove that she conspired willfully to violate the Act, specifically that she knew that shipment through third party country was similarly prohibited. The court rejected this argument finding ample evidence that Man was not only aware of the generally unlawful nature of other actions but that she instead conspired to violate the know legal duty not to export the defense articles without a license. The court cited Liu’s warnings and Man’s persistent and calculated attempts to evade detection and Man’s statements about the embargo and license more than entitled the jury to infer that Man conspired willfully to violate the known legal duty.

Man’s criminal defense attorney raised an entrapment defense at trial and on appeal argued she was entrapped as a matter of law. This claim was rejected because the court found there was sufficient evidence for the jury to find that Man was predisposed to commit the crime. Man initiated discussion about aircraft engines with an aircraft part seller before Liu and the government entered the picture. Lui also repeatedly warned Man that her proposals were illegal, but she persisted despite his prompting to back out of the transaction.

She also challenged her sentence of 50 months as unreasonable and based on impermissible factors. Specifically, she claimed that a statement by the sentencing judge that Man acted out of a commitment to help the Republic of China and that she was faithful to her native country involved an impermissible factor of national origin. The court rejected this argument because it found the district court was entitled to reference her allegiance to China and it had nothing to do with her national origin or ethnicity