          United States Court of Appeals
                        For the First Circuit

No. 11-1115

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                     ZHEN ZHOU WU, a/k/a ALEX WU,

                        Defendant, Appellant.

No. 11-1141

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                     YUFENG WEI, a/k/a ANNIE WEI,

                        Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]
                         ____________________

                                Before
                         Lynch, Chief Judge,
                     Souter,* Associate Justice,
                      and Selya, Circuit Judge.


     Michael R. Schneider and Alan M. Dershowitz with whom Jeffrey
G. Harris and Salsberg & Schneider were on brief for appellant Zhen
Zhou Wu, a/k/a Alex Wu.


     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
     Nathan Z. Dershowitz with whom Amy Adelson and Dershowitz
Eiger & Adelson, P.C. were on brief for appellant Yufeng Wei, a/k/a
Annie Wei.
     Stephan E. Oestreicher, Jr., Appellate Section, Criminal
Division, Department of Justice, with whom Lanny A. Breuer,
Assistant Attorney General, Criminal Division, John D. Buretta,
Acting Deputy Assistant Attorney General, Criminal Division, Carmen
M. Ortiz, United States Attorney, B. Stephanie Siegmann and John
A. Capin, Assistant United States Attorneys, were on brief for
appellee.




                          March 19, 2013
            LYNCH, Chief Judge.        This case involves criminal laws

meant to protect the security of the United States and rights

guaranteed to criminal defendants by the Constitution.

            In 1976, Congress passed the Arms Export Control Act

("AECA"), giving the President broad authority to regulate the

shipment    of   defense   articles    to   foreign   destinations   "[i]n

furtherance of world peace and the security and foreign policy of

the United States."    22 U.S.C. § 2778 (2006).        Three years later,

Congress further authorized the President to restrict the export of

"dual-use" technologies that serve both military and nonmilitary

purposes.   50 U.S.C. app. §§ 2401(5), 2402(2)(A).        Individuals who

violate either set of export restrictions may be fined up to $1

million and imprisoned for up to 20 years.       22 U.S.C. § 2778(c); 50

U.S.C. § 1705(c). The resulting regulatory scheme is intricate, in

order to combat the sophisticated weapons dealers whose activities

undermine U.S. interests.

            The case at hand involves two defendants prosecuted and

convicted on charges of violating restrictions on the overseas

shipment of weapons-grade technologies. From 1996 until 2008, Zhen

Zhou Wu and Yufeng Wei shipped tens of millions of dollars worth of

sophisticated electronic components from the United States to

China, with little regard for whether the parts that they sold were

export-controlled.     On appeal, Wu and Wei launch a broad-based

attack on the federal government's arms export control system--a


                                      -3-
regulatory scheme that, they say, violates the Fifth Amendment's

Due Process Clause.      We reject this attack.       However, on two

counts of conviction, charging Wu and Wei with exporting items

restricted under the U.S. Munitions List, we find that the district

court erred in its instructions by not submitting to the jury an

element of the offense--an error that violated the defendants'

Sixth Amendment right to a trial by jury and has not been shown to

be harmless.    Accordingly, we affirm Wu's conviction on 15 of the

17 counts, affirm Wei's conviction on 11 of the 13 counts, and

vacate the convictions of each defendant on two counts.          We remand

for resentencing.

                                   I.

A.   Background

           Zhen Zhou Wu and Yufeng Wei, both Chinese nationals,

married in China in 1988.      Afterward, they each pursued graduate

degrees in the United States. In 1996, Wu returned to China to

found   the    Chitron   Electronics    Company   Limited   in   Shenzhen

("Chitron-Shenzhen").     Chitron-Shenzhen served as an electronic-

parts broker, purchasing components from international suppliers

and then selling them to customers in China.         It specialized in

military and industrial parts.

           The same year that Wu founded Chitron-Shenzhen, he also

opened a branch purchasing office for the company in Massachusetts

called "Perfect Science and Technology" and employed Wei to run the


                                  -4-
office. Wei ran Perfect Science as a sole proprietorship under her

own name.     In early 1998, Wu incorporated the office as "Chitron

Electronics, Inc." ("Chitron-US"), with Wu as the corporation's

president and Wei as its business and finance manager.                      Throughout

this period, Wei oversaw the purchase of parts from vendors in the

United   States      and    the      shipment    of    those   parts   to    Chitron's

customers in China.           Wu and Wei divorced in 1999, although their

working relationship continued throughout the period covered in the

indictment.

            Wu oversaw the business from Shenzhen.                 Once a year, he

traveled to the United States to visit the Chitron-US office, and

he   remained   in      daily     contact      with    Wei   throughout     the   year,

coordinating      the      activities     of    Chitron-US     through      electronic

tasking lists and an online database system. Meanwhile, Wei worked

as office manager of the Chitron-US branch, a role she served in

until 2007, when Stephen Gigliotti took over that position.                         By

that time, Chitron had five offices--three in China, one in Hong

Kong, and one in the United States--and over 200 employees.                        Each

year, the company purchased tens of thousands of parts, worth tens

of millions of dollars, from dozens of U.S. suppliers.

            Nearly      all     of    Chitron's       customers   were    located    in

mainland China.          Before 2005, Chitron-US would ship orders to




                                          -5-
freight forwarders1 in Hong Kong, who then repackaged the items and

sent them along to Chitron-Shenzhen, where they were inspected and

then finally sent to their ultimate recipients in China.         In 2005,

Chitron established its own one-room branch office in Hong Kong,

staffed by a single part-time employee who traveled to Hong Kong a

few days a week while working full-time in Shenzhen.          Thereafter,

Chitron-US exported parts directly to Chitron's Hong Kong office,

which then forwarded the orders to Chitron-Shenzhen.          Wu and Wei

claimed that they shipped parts through Hong Kong because it was

cheaper than sending them directly to China.

          Before    exporting   parts   from   the   United    States,   a

Chitron-US employee--usually Wei--would prepare a "Shipper's Export

Declaration" ("SED"), as required by the Commerce Department's

Foreign Trade Regulations. See 15 C.F.R. § 30.2(a)(1); see also 13

U.S.C. § 301.      Wei always entered the code "NLR" ("no license

required") on the forms to indicate that no export licenses were

required for the goods that Chitron-US was shipping.            Wei also

listed "Hong Kong" as the "country of ultimate destination" for the

parts, and entered the names of the freight forwarders--and later

Chitron's Hong Kong office--as the parts' "ultimate consignee."


     1
      A "freight forwarder" is "a transportation broker who
assembles and consolidates numerous small shipments into one large
load, arranges for long-haul transportation of the consolidated
shipment, breaks the consolidated load into small individual
shipments, and delivers those packages to the ultimate consignees."
Regular Common Carrier Conference v. United States, 793 F.2d 376,
378 (D.C. Cir. 1986) (Scalia, J.).

                                  -6-
           How much Wu and Wei actually knew about the United

States' export control regime was hotly contested at trial.                   Wu

occasionally presented himself to customers as an export compliance

expert with a specialty in military products. According to Chitron

staff, for most of its history the company had no export compliance

policy, nor did it give any compliance training to its employees.

           Nevertheless, as early as 1996, someone at Chitron-US had

printed    out   pages    from   the       Commerce    Department's     Export

Administration Regulations ("EAR"), 15 C.F.R. pts. 730-774, and

placed them into a folder labeled "export" inside a box marked "Wu

files."    Communications between Wu and Wei around this time also

evidence that the two were aware of legal restrictions on the

export of certain electronics to China.            In April 1997, Wei told Wu

in an e-mail that she had learned from United Parcel Service that

she was required by law to obtain an export license in order to

ship a certain part.      That same month, Wei also told Wu that a

vendor had refused to sell to her after she mentioned that her

customer   was   in   China,   and   that    the    "big   lesson"   from   this

"mistake" was to avoid providing "extra" information to vendors.

Wu agreed, suggesting that Wei not tell suppliers that she sold

parts to China, and later instructing that she should simply avoid

telling suppliers that she exported parts at all.

           Beginning in 2000, Chitron's lack of export licenses for

its products became a bigger and bigger concern for the company.


                                     -7-
In 2001 and 2002, Maylyn Atkinson Murphy, a Chitron-US employee,

repeatedly told Wu that vendors had begun to ask for "end user

information," such as where Chitron would be shipping the parts and

whether those parts would be used with products that had military

applications.   In   response,   Wu    explained   to   Murphy   that his

priority was to "get business done" while avoiding "trouble if the

parts are really sensitive and defense related."        He told her that

"[t]he key is to avoid submitting end user information and get the

[p]arts ordered," and suggested that if vendors asked her, she

should tell them that she did "not know where the parts ship."

          In August 2002, Wei raised similar concerns with Wu: she

said that she was worried about shipping a part that was "not for

exporting [to] China" and that she feared there might be "some

strict rule from [C]ustom[s] if they see the part number."             Wei

suggested to Wu that she could instead enter a different part

number on the shipping documents.

          In June 2003, a vendor at an electronics trade show told

Wei that she would be interested in doing business with Chitron

"provided you guys can, you know, supply the export license[s].

You are supplying the export licenses, are[n't] you?" According to

Murphy, Wei said "yes," even though Chitron had never obtained, nor

ever even applied for, an export license for any part.           Wei later

e-mailed Wu about the exchange, telling him that the vendor had

"realized that we export most [of] their products to China," that


                                 -8-
"all their items (or most) should have [a] license for exporting,"

and that "they became susp[i]cious how we file the application or

forms for exporting."      She warned Wu that it would be difficult to

obtain parts from that vendor in the future, due to "exporting

getting more strict, especially to China."

           As more and more vendors discovered that Chitron planned

to ship parts to China, and as the vendors refused to sell to

Chitron    unless   it     obtained        export   licenses,     Chitron-US

staff--including    Wei--began      to   note   these     so-called    "problem

orders" in the tasking lists. By 2005, vendors were telling Murphy

"every day" that Chitron needed export licenses to ship the parts

it wanted to China; Murphy would then relay these messages to Wei,

who would inform Wu.     Several Chitron-US employees raised concerns

about export restrictions with Wei, especially those regarding the

shipment   of   military    parts   to     China,   but    according    to   the

employees' testimony, Wei either "laughed them off" or accused them

of "insubordination."

           In a 2005 performance review, Wu expressed disappointment

that Murphy had failed to reach her "minimum purchases."                Murphy

explained that it had been difficult for her to keep her numbers up

"because a lot of our vendors require export licensing."               She left

the company a few months later, in part because she "didn't think

they were doing the right thing."           In 2007, Gigliotti attended a

day-long informational meeting on export compliance, and he was


                                     -9-
"shaken up" by what he learned there about the liability he and

Chitron could face for their past conduct.             He called Wu that

evening and told Wu that "we have to redo the entire workflow

process in the company to make sure that we're abiding by the

laws."    A few days later, Gigliotti met with Wu in person to

discuss a proposal Gigliotti had drafted for how Chitron could

ensure its compliance with U.S. export laws.           Wu responded that

Gigliotti was "overreacting" due to Gigliotti's "personal political

beliefs," that the export laws did not apply to Chitron because it

shipped to Hong Kong rather than to China, and that Gigliotti's

proposals would be too expensive and affect too much of Chitron's

business.

            When Gigliotti raised the issue with Wu once more in

October     2007,   Wu   again   accused   Gigliotti   of   overreacting,

emphasizing that Gigliotti's priority was to "keep the U.S. office

running profitably."      Wu added: "I'm not afraid to go to jail.    Are

you?"    Gigliotti quit the next day.

            Only after Gigliotti's resignation did Wu implement some

export compliance measures, which included a formal process for

checking to see whether parts were export-controlled, export-law

training for Chitron personnel, and the appointment of Chitron-US

employee Bo Li as "compliance officer."




                                   -10-
B.   Charges

           In 2008, Wu and Wei were arrested and later indicted for

34 counts of export-related offenses.    After a 23-day jury trial

and various post-trial motions, the two were ultimately convicted

as follows:


           -The Munitions List Counts: Both Wu and Wei
           were convicted on two counts for, on two
           occasions in June 2006, exporting to China
           without a license "phase shifters" that are
           designated as defense articles on the U.S.
           Munitions List, 22 C.F.R. pt. 121.

           -The Commerce Control List Counts: Both Wu and
           Wei were convicted on seven counts, and Wu was
           convicted on five additional counts, for, on
           various occasions between May 2004 and May
           2007, exporting to China without a license
           electronic converters that are controlled
           under the Commerce Control List, 15 C.F.R. pt.
           774.

           -The Conspiracy Count: Both Wu and Wei were
           convicted under 18 U.S.C. § 371 on one count
           of conspiracy to violate both the Munitions
           List and Commerce Control List restrictions.

           -The SED Counts: Both Wu and Wei were
           convicted on two counts for conspiring to file
           materially false Shipper's Export Declarations
           with the Commerce Department by misstating the
           ultimate recipients and destinations of their
           exports, in violation of 18 U.S.C. § 371, and
           for devising a scheme to falsify or conceal
           material facts in a matter within the
           jurisdiction   of   the  United   States,   in
           violation of 18 U.S.C. § 1001(a)(1).

           -The Immigration Count: Finally, Wei was
           convicted on one count for making material
           false    statements  in   an    immigration
           application, in violation of 18 U.S.C. §
           1546(a).

                               -11-
               Wu and Wei were acquitted on several additional counts.

Wu was sentenced to 97 months in prison, and Wei was sentenced to

36 months.

                                     II.

A.   Munitions List Counts

               On the Munitions List counts, the prosecution alleged

that Wu and Wei twice unlawfully exported "phase shifters"2 to

China without a license.      See 22 U.S.C. § 2778(b)(2); 22 C.F.R. pt.

121.       Wu and Wei argue that the Munitions List convictions should

be     reversed    because   the    Munitions   List   restrictions   are

unconstitutionally vague.          In the alternative, they argue that

their convictions should be vacated because the jury instructions

were fatally flawed.3        We consider both arguments de novo.      See

Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir. 2010)

(jury instructions); United States v. Lachman, 387 F.3d 42, 50 (1st

Cir. 2004) (vagueness).        We reject the constitutional vagueness

argument, but we agree that the jury instructions were flawed and

so vacate the convictions on the Munitions List counts. We address


       2
      Two waves are said to be "out of phase" when they have the
same frequency but reach their peaks at different points. A phase
shifter can change the phase of one of the two waves so that the
waves exactly line up with one another (or, vice versa, so that
waves that were previously "in phase" no longer line up with one
another). See generally Weisman, The Essential Guide to RF and
Wireless, at fig. 4-23 (2d ed. 2002).
       3
      Wu and Wei also raise several additional challenges to the
Munitions List convictions, but we need not reach them because we
vacate the convictions due to the flawed jury instructions.

                                     -12-
Wu and Wei's constitutional arguments inasmuch as they affect the

scope of the remand.      Compare Burks v. United States, 437 U.S. 1,

11 (1978) (retrial barred by Double Jeopardy Clause if evidence

supplied by the government would be legally insufficient to sustain

conviction), with United States v. Urciuoli, 513 F.3d 290, 297 (1st

Cir. 2008) (new trial permissible where error is confined to jury

instructions), cert. denied, 131 S. Ct. 612 (2010).

              Statutory and Regulatory Framework.        The Arms Export

Control Act authorizes the President "to control the import and the

export of defense articles."       22 U.S.C. § 2778(a)(1).       Under the

AECA, the President may "designate those items which shall be

considered as defense articles" and "promulgate regulations for the

import and export of such articles."             Id.   The President has

delegated this responsibility to the State Department. Exec. Order

No. 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977).

              A designated "defense article" may not be exported from

the United States without a license from the State Department. See

22   U.S.C.    §   2778(b)(2).    The    AECA   criminalizes    "willful[]"

violations of this export license requirement.           Id. § 2778(c).

The AECA further provides that the designation of an item as a

"defense   article[]"     made   via    "regulations   issued   under    [the

statute] . . . shall not be subject to judicial review."                Id. §

2778(h).   Because the United States suspended munitions exports to

China after the Tiananmen Square killings in 1989, the State


                                   -13-
Department will not grant a license to export defense articles to

that country.   See 22 C.F.R. § 126.1(a); Suspension of Munitions

Exports to PRC, 54 Fed. Reg. 24,539 (June 7, 1989); see also United

States v. Holmquist, 36 F.3d 154, 157 (1st Cir. 1994), cert.

denied, 514 U.S. 1084 (1995).

          Pursuant to the President's authority under the AECA, the

State Department has promulgated the International Traffic in Arms

Regulations ("ITAR"), 22 C.F.R. pts. 120-130, which include the

U.S. Munitions List, id. pt. 121.      The Munitions List is not a

compendium of specific controlled items; instead, it is a series of

categories describing the kinds of items that qualify as "defense

articles" requiring export licenses.    The Munitions List contains

"attributes rather than names," and for good reason.   As has been

explained:

          [A]n effort to enumerate each item would be
          futile, not only because some are bound to be
          overlooked (imagine a regulation that tried to
          list all bicycles by manufacturer and model
          number) but also because manufacturers change
          their designations.      The Mark 4 may be
          succeeded by a Mark 5, or the CQ/T model may
          become the CQ/X.

United States v. Pulungan, 569 F.3d 326, 328 (7th Cir. 2009)

(Easterbrook, C.J.).

          A manufacturer unsure about whether a particular item is

a "defense article" covered by the Munitions List may file a

"commodity jurisdiction" (CJ) request with the State Department.

The determination is made by the Directorate of Defense Trade

                                -14-
Controls within the State Department, in consultation with the

Departments of Defense and Commerce, as well as other government

agencies    and   industry.     See    22    C.F.R.   §   120.4.4   These   CJ

determinations are never officially published in regulations or

other government pronouncements.

            The specific phase shifters at issue in this case were

both made by M/A-Com, formerly a subsidiary of Tyco Electronics,

and bore the product numbers "MAPCGM0003" and "MAPCGM0002."                 The

government alleges that these phase shifters fell under Category

XI(c) of the Munitions List.       That category covers "[c]omponents,

parts,     accessories,   attachments,         and    associated    equipment

specifically designed or modified for use with the equipment in

[Categories XI(a) and XI(b)], except for such items as are in

normal commercial use."       22 C.F.R. § 121.1(c)(XI)(c).5

            Vagueness.    At the outset, we address the defendants'

argument that this carefully crafted regulatory scheme--which has


     4
      Nothing in the relevant regulation states that manufacturers
are the only parties that can submit CJ requests, see 22 C.F.R. §
120.4, although the State Department "prefer[s] that the
manufacturer submit the request because of the background and sales
information required." U.S. State Dep't, Directorate of Defense
Trade Controls, Commodity Jurisdiction (CJ) FAQs (Oct. 2011),
available at http://www.pmddtc.state.gov/faqs/documents/FAQ_CJ.pdf.
     5
      Categories XI(a) and XI(b), in turn, contain examples of
products that qualify as "[e]lectronic equipment . . . specifically
designed, modified or configured for military application," ranging
from "underwater acoustive active and passive countermeasures" to
systems "[d]esigned or modified using burst techniques . . . for
intelligence, security or military purposes." 22 C.F.R. §
121.1(c)(XI)(a), (a)(2), (b)(2).

                                      -15-
remained     in    place      for   more     than    a    quarter       century--is

unconstitutionally vague. The Fifth Amendment's Due Process Clause

requires that "a criminal statute provide adequate notice to a

person of ordinary intelligence that his contemplated conduct is

illegal."    Buckley v. Valeo, 424 U.S. 1, 77 (1976) (per curiam);

see also United States v. Anzalone, 766 F.2d 676, 678 (1st Cir.

1985).     The "void for vagueness doctrine" addresses at least two

discrete due process concerns: "first, . . . regulated parties

should know what is required of them so they may act accordingly;

second,    precision     and    guidance     are    necessary     so    that   those

enforcing the law do not act in an arbitrary or discriminatory

way."    FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317

(2012).

            Wu    and   Wei    emphasize   only     the   first    of    these   two

concerns, and appropriately so, since Munitions List Category

XI(c), when placed within its larger regulatory framework, sets

forth reasonably precise standards for enforcement.                    To be within

the reach of the Munitions List at all, an item must qualify as a

"defense article," a term defined by the ITAR with considerable

specificity.6     Moreover, the particular Munitions List category at


     6
      "An article . . . may be designated or determined in the
future to be a defense article . . . if it: (a) Is specifically
designed, developed, configured, adapted, or modified for a
military application, and (i) Does not have predominant civil
applications, and (ii) Does not have performance equivalent
(defined by form, fit and function) to those of an article or
service used for civil applications; or (b) Is specifically

                                      -16-
issue in this case--Category XI(c)--ties its coverage to Categories

XI(a) and    XI(b),   which in   turn    contain   specific   examples   of

electronic systems and components covered by the ITAR.          See supra

note 5.     And to ensure that the regulation does not ensnare

unwitting exporters selling to non-military clients, Category XI(c)

also explicitly excludes items "in normal commercial use."               22

C.F.R. § 121.1(c)(XI)(c).

            All together, this framework provides specific guidance

that would allow individuals and law enforcement officials alike

to determine whether the phase shifters fall within Category XI(c).

At trial, both the government and the defendants presented expert

testimony regarding the design and the use of phase shifters; on

this basis the jury could have made discrete factual determinations

on the matter.     Granted, the evidence presented at trial could

support alternative interpretations, yet "a regulation is not vague

because it may at times be difficult to prove an incriminating fact

but rather because it is unclear as to what fact must be proved."

Fox Television Stations, Inc., 132 S. Ct. at 2317.            Here, it is

quite clear what specific facts would determine whether the phase

shifters fall within Category XI(c):        whether they were designed

for military use; whether they are used in conjunction with the


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." 22 C.F.R. § 120.3.


                                  -17-
items described in Categories XI(a) and (b); and whether they are

also amenable to normal commercial uses that would take them

outside the scope of the ITAR.

            Wu and Wei have a somewhat stronger case when they

emphasize   that   Category   XI(c)'s     broad   language   and   lack   of

technical parameters do not give "fair notice" to a "person of

ordinary intelligence" that phase shifters are Munitions List-

controlled.    Cf. id. at 2317.     After all, as the defendants note,

phase shifters     are   small,   technologically    complex   microchips;

unlike the bomb and ammunition parts at issue in other cases,7 the

phase shifters may not have a self-evidently military purpose in

the eyes of an ordinary person.

            But Wu and Wei are not just ordinary people sending gifts

to friends living overseas.        They managed a multimillion-dollar

enterprise; their company, Chitron, specifically pursued military

customers; and Wu promoted himself as both an exporter of military

supplies and an export compliance expert.         The export of military

equipment in particular is a "sensitive business" directed by "a

relatively small group of sophisticated international businessmen."

United States v. Lee, 183 F.3d 1029, 1032 (9th Cir.), cert. denied,

528 U.S. 990 (1999); see also United States v. Swarovski, 592 F.2d


     7
      See, e.g., United States v. Sun, 278 F.3d 302, 308-09 (4th
Cir. 2002) (tail-gun pods, underwater mines, missile fins, and
assemblies for various weaponry); United States v. Murphy, 852 F.2d
1, 4 (1st Cir. 1988) (Redeye missile, M-16 rifles, submachine guns,
and ammunition), cert. denied, 489 U.S. 1022 (1989).

                                   -18-
131, 133 (2d Cir. 1979).        It is not too much to ask these

businessmen    and   businesswomen   to   comply   with     export   control

regulations, even if the meaning of those regulations might not be

immediately obvious to someone lacking the same sophistication.

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498 (1982) (economic regulations are "subject to a less

strict vagueness test because . . . businesses, which face economic

demands to plan behavior carefully, can be expected to consult

relevant legislation in advance of action").              Furthermore, the

ACEA's   implementing      regulations     establish        the   commodity

jurisdiction   determination   process    in   order   to    allow   private

parties to obtain an official government answer on whether an item

is covered by the Munitions List before they engage in potentially

unlawful conduct, see 22 C.F.R. § 120.4, a feature that further

mitigates any concern about the law trapping an unwary dealer. See

Vill. of Hoffman Estates, 455 U.S. at 498; see also Lachman, 387

F.3d at 57; Lee, 183 F.3d at 1032.8

          Finally, the AECA's scienter requirement covers only

"willful[]" violations of the law's export restrictions. 22 U.S.C.

§ 2778(c). The Act does not "impose criminal penalties on innocent



     8
      While State Department guidance suggests that Wu and Wei
would have needed a "letter of authorization" from M/A-Com in order
to obtain a CJ determination, see U.S. State Dep't, Commodity
Jurisdiction (CJ) FAQs, there is no reason to doubt that Wu and Wei
could have satisfied that requirement if they had made any effort
to do so.

                                 -19-
or negligent errors."        United States v. Davis, 583 F.2d 190, 193

(5th Cir. 1978).      Where a statute "explicit[ly] provi[des] that a

criminal violation of its terms must be 'willful,'" the void-for-

vagueness doctrine is especially inapposite, see United Union of

Roofers, Waterproofers & Allied Workers v. Meese, 823 F.2d 652, 659

(1st Cir. 1987) (Breyer, J.), since the statute itself ensures that

"good-faith errors are not penalized," Harris v. McRae, 448 U.S.

297, 311 n.17 (1980).       By criminalizing only willful violations of

the law, the statute's scienter requirement "protects the innocent

exporter who might accidentally and unknowingly export a proscribed

component or part."       Lee, 183 F.3d at 1032-33.

            Outside the First Amendment context, we consider "whether

a statute is vague as applied to the particular facts at issue,"

for a defendant "who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as applied

to the conduct of others." Holder v. Humanitarian Law Project, 130

S.Ct. 2705, 2719 (2010) (emphasis added) (internal quotation marks

omitted).     We   need    only   determine   whether   the   AECA   and   its

regulations    were       vague   "as   applied   to    these    particular

defendants"--in other words, whether Wu and Wei "in fact had fair

notice that the statute and regulations proscribed their conduct."

United States v. Hsu, 364 F.3d 192, 196 (4th Cir. 2004).              And as

the district court concluded, there was ample evidence at trial




                                     -20-
that Wu and Wei actually believed that the phase shifters required

government licenses for export.

            Before any of the exports at issue occurred, Chitron-US

received a purchase order and later a price quotation from its

supplier, Richardson Electronic; both documents warned Chitron

specifically that the MAPCGM0003 phase shifter was subject to

export control under the authority of the State Department, that

exporting the item may require prior government approval, and that

the phase shifter fell under Category XI of the Munitions List.

            Chitron-US also received similar warnings in regard to

the   MAPCGM0002    phase        shifter:    first,    from   another       supplier,

Microwave Components, Inc., which sent Chitron a price quotation

and later     an   invoice       for   the   MAPCGM0002 phase        shifters that

included a disclaimer cautioning that exports may require prior

authorization      from    the    U.S.   government     and   that     it    was   the

purchaser's     sole      responsibility        to   comply   with    U.S.     export

licensing requirements; and second, from Richardson Electronics,

which sent Chitron a price quotation on the MAPCGM0002 phase

shifters that included a warning that the part was subject to State

Department export controls, that it may require prior government

approval for export, and that it fell under Category XI of the

Munitions List.9


      9
      Wu and Wei raise several objections to this evidence. First,
they contend that the "purchase order" on which the district court
relied was in fact a "picking document" used internally by

                                         -21-
             The jury could infer that Wu and Wei were aware of these

warnings.     The two were "hands-on micro-managers," Wei supervised

the   Chitron-US    office   and   was    involved    in   the   day-to-day

purchasing, and Wei communicated daily with Wu via tasking lists--

all   good    reasons   to   attribute    Chitron's    knowledge   to    the

defendants.    Moreover, Wu and Wei repeatedly attempted to disguise

the fact that they were exporting to China and that they lacked the

necessary licenses to do so--further evidence that the defendants

knew they were violating U.S. export regulations when they shipped

the phase shifters to China without government permission.              See

United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012); United

States v. Cranston, 686 F.2d 56, 62 (1st Cir. 1982).


Richardson, to which Chitron would never have had access. However,
testimony at trial indicated that the picking document was
identical to the packing list Richardson included in the package
for the buyer.
     Second, Wu and Wei argue that the district court regarded the
Richardson warnings as unreliable, and admitted them as business
records only as to the question of "whether or not [the phase
shifters] were bought and sold," but not as to the contents of the
accompanying warnings that Chitron received.      But in fact, the
court admitted the picking document for the MAPCGM0003 phase
shifter for all purposes, and admitted the testimony of Richard
Catey, a Richardson employee, for the purpose of establishing the
contents of the warnings that Chitron received.
     Third, Wu and Wei claim that because the Richardson warnings
only advised that the phase shifters "may" require prior government
approval for export, the warnings fell short of constitutional
notice requirements. However, the warnings specifically referenced
the State Department's authority over the phase shifters and their
presence on Munitions List Category XI. As a whole, the language
of the warnings was sufficient to put Wu and Wei on notice and
direct them to conduct a further inquiry as to the license
requirements for exporting the phase shifters.


                                   -22-
          In sum, Wu and Wei cannot claim that they lacked "fair

notice" of the Category XI(c) restrictions, and those restrictions

are not so standardless as to allow for arbitrary enforcement.

Accordingly, we hold that the Munitions List restrictions--as

applied to Wu and Wei–-are not void for vagueness.      Accord Hsu, 364

F.3d at 196-98 (rejecting void-for-vagueness challenge to the

Munitions List); Lee, 183 F.3d at 1031-33 (same); United States v.

Gregg, 829 F.2d 1430, 1437 (8th Cir. 1987) (same), cert. denied,

486 U.S. 1022 (1988); Swarovski, 592 F.2d at 132-33 (same).

          Jury Instructions.      Wu and Wei are on much stronger

footing when they challenge the district court's instruction to the

jury that it must accept without question the State Department's

after-the-fact   determinations    that   the   phase   shifters   were

controlled by the Munitions List.         Wu and Wei argue that by

removing from the jury the question of whether the phase shifters

fell under the Munitions List, the instructions violated their

right to a jury finding on each essential element of the crime.

          As an initial rejoinder, the government claims that since

the AECA precludes judicial review of defense article designations,

see 22 U.S.C. § 2778(h), the statute also bars jurors from deciding

whether a particular item identified as a defense article in a CJ

determination actually meets the criteria of the Munitions List.

The Seventh Circuit previously rejected this argument, observing

that § 2778(h) only covers designations made "in regulations," and


                                  -23-
that   a   CJ   determination   by    the     Directorate    is   "not   in   a

regulation."    Pulungan, 569 F.3d at 328.         However, the government

urges us instead to follow the decision in Karn v. U.S Dep't of

State, 925 F. Supp. 1 (D.D.C. 1996), remanded on other grounds, 107

F.3d 923 (table), 1997 WL 71750 (D.C. Cir. 1997) (per curiam)

(unpublished opinion), which held that § 2778(h) does shield CJ

determinations from judicial review.           See id. at 5-6.

            In this case, however, we need not decide the difficult

questions of whether the provision's reference to "regulations"

includes CJ determinations or certifications to courts, or whether

the phrase "judicial review" applies to juries.             Even if § 2778(h)

does bar jury review of CJ determinations and/or certifications,

there would be serious constitutional problems if we read that

provision to render Directorate determinations issued after exports

have already occurred as being retroactively dispositive as to the

coverage of the Munitions List.             Cf. Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring). Our

concern is not whether the form of the designations sufficed, but

the timing:     the government may not decide for itself that some

prior act by a criminal defendant violated the law, and thereby

remove that determination from the province of the jury.

            As of June 2006, the time of the exports in question, no

official determination had been made as to the presence of the

phase shifters on the Munitions List.           Indeed, at the time there


                                     -24-
was disagreement even within the government as to the proper

categorization of the phase shifters.     The items apparently had

some commercial utility, including in civilian aviation and cell

phone technology. In February 2002, the Commerce Department issued

Commodity Classifications concluding that the phase shifters were

dual-use items covered by the Commerce Control List (which would

indicate that they did not fall within the scope of Munitions List

Category XI(c)). But in August 2003, the Defense Department's Tri-

Services Committee verbally informed the manufacturer of the phase

shifters that the items should be ITAR-controlled and thus under

the authority of the State Department. This advice was never made

public.10

            It was not until December 2007, 18 months after Chitron

exported the phase shifters in question, that the Directorate



     10
      The fact that government officials disagreed about the proper
classification of phase shifters does not mean that Category XI(c)
is fatally vague. For instance, two police officers might disagree
whether the barrel of a shotgun is greater or less than 18 inches,
perhaps because they have different ideas about how length should
be measured.    See, e.g., United States v. Shaw, 670 F.3d 360,
365-66 (1st Cir. 2012) (discussing methods for measuring barrel
length). But that does not mean the statutory provisions defining
"firearm" by barrel length, 26 U.S.C. § 5845(a)(1)-(4), are void
for vagueness. A statute can satisfy the Due Process Clause and
still present occasional close calls.
     Moreover, the fact that government officials disagreed about
the proper classification of phase shifters does not defeat the
mens rea element of the offense.      Wu and Wei might well have
believed that the phase shifters were Munitions List-restricted
even while some government officials were doubtful. After all, the
defendants were not privy to the State and Commerce Departments
deliberations on the matter.

                                -25-
issued a CJ determination confirming that the MAPCGM0003 phase

shifter fell within the coverage of the Munitions List.                       The

Directorate   never   issued    a    CJ   determination     at    all   for   the

MAPCGM0002 phase shifter, but rather simply certified to the

district court before trial, years after the export, that it was in

fact covered by the Munitions List.

          Nevertheless,    at       the   conclusion   of   the    trial,     the

district court, over the defendants' objections, instructed the

jury that it should not consider "the appropriateness of the

determinations made by the State Department" as to whether the

phase shifters fell under the Munitions List.             Instead, the court

told the jury that it should only decide "whether the government

has proved beyond a reasonable doubt that the Secretary of State

determined that the charged parts were defense articles on the

[Munitions List] at the time of export."

          To see why this instruction improperly wrested a key

question from the jury, we go back to first principles.                 "In the

criminal law, both a culpable mens rea and a criminal actus reus

are generally required for an offense to occur."            United States v.

Apfelbaum, 445 U.S. 115, 131 (1980); accord United States v.

Vilches-Navarrete, 523 F.3d 1, 21 (1st Cir.) (Lynch, J., and

Howard, J., opinion of the court in part and concurring in part),

cert. denied, 555 U.S. 897 (2008).          To use a straightforward and

familiar example: the crime of possessing an unregistered firearm,


                                     -26-
26 U.S.C. § 5861(d), requires (1) that the defendant possessed an

unregistered weapon classified as a "firearm" under the National

Firearms Act (the actus reus), and (2) that the defendant "knew of

the features of his [weapon] that brought it within the scope of

the Act" (the mens rea).           Staples v. United States, 511 U.S. 600,

619 (1994).

              In the ordinary course, the actus reus element will be

easier to prove than the mens rea.            The National Firearms Act says

that a shotgun having a barrel of less than 18 inches must be

registered, see 26 U.S.C. § 5845(a), and barrel length may be

readily measured.       Thus, in United States v. Shaw, 670 F.3d 360

(1st   Cir.    2012),   it   was    uncontested   that   the    barrel   of   the

defendant's shotgun measured only sixteen and a quarter inches; the

issue in dispute was whether the defendant knew that the barrel was

shorter than the requisite length.             Compare id. at 364 (majority

opinion), and id. at 368-69 (Boudin, J., concurring), with id. at

376 (Lipez, J., dissenting).

              But even where the evidence is sufficient to show the

necessary mens rea, the government still must always "meet its

burden of proving the actus reus of the offense."              United States v.

Whiteside, 285 F.3d 1345, 1353 (11th Cir. 2002).               For instance, if

a defendant mistakenly thinks that the barrel of his unregistered

shotgun is shorter than eighteen inches when in fact it is longer

than that length, he is innocent of the crime of possessing an


                                       -27-
unregistered firearm, even though he had the requisite guilty mind.

Cf. United States v. De La Torre, 599 F.3d 1198, 1204 (10th Cir.

2010) (government must "prove[] the defendant had the requisite

guilty mind" and "prove the defendant did possess the particular

controlled substance charged in the indictment"), cert. denied, 131

S. Ct. 227 (2010).

          Here, to convict the defendants of violating the AECA, 22

U.S.C. § 2778(c), the jury had to find not only that the defendants

acted with the requisite mens rea (willfulness), but also that they

actually committed the actus reus charged (violation of regulations

issued under the statute). Put differently, even if the jury found

that Wu and Wei believed that phase shifters fell within the

Munitions List restrictions, it would still have to conclude that

the phase shifters actually did fall within the Munitions List

restrictions (regardless of Wu and Wei's beliefs).            And as to

whether Wu and Wei violated regulations issued under the AECA, the

proper question for the jury was whether Wu and Wei's conduct

violated the relevant regulations as those regulations existed at

the time the conduct occurred. See Lindsey v. Washington, 301 U.S.

397, 401 (1937) ("The Constitution forbids the application of any

new punitive   measure   to   a   crime   already   consummated,   to   the

detriment or material disadvantage of the wrongdoer.").

          In defense of the jury instructions, the government

argues that the question of whether the phase shifters fall within


                                   -28-
the    Munitions   List   is   a   legal   issue   not   suited   for   jury

determination.     Cf. Sparf v. United States, 156 U.S. 51, 106-07

(1895) (juries decide factual questions, not legal questions).            In

support, it cites to our cases construing the felon-in-possession

statute, in which certain issues of law embedded in the definition

of "prior conviction" (such as whether a former felon's right to

carry a firearm has been restored) are denied to the jury.              See,

e.g., United States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995).

Yet in Bartelho, we held that "a showing that the [defendant's]

right to carry a firearm has not been restored is not an element of

a [felon-in-possession statute] violation."              Id. at 439.      By

contrast, we have held that a showing that an exported item was on

the Munitions List is an element of a § 2778 violation. See United

States v. Murphy, 852 F.2d 1, 6 (1st Cir. 1988).           And in order to

convict a defendant under a criminal statute, the government must

prove each element of the offense to a jury beyond a reasonable

doubt.    See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see

also S. Union Co. v. United States, 132 S. Ct. 2344, 2350 (2012).

            This is not to deny that "Congress enjoys latitude in

determining what facts constitute elements of a crime which must be

tried before a jury and proved beyond a reasonable doubt and which

do not." Vilches-Navarrete, 523 F.3d at 20 (Lynch, J., and Howard,

J.).   But Congress has never said that a criminal defendant may be




                                    -29-
convicted on the basis of an ex post determination by a State

Department official outside the regulatory process.

           The    government      also    invokes     United    States   v.   Spawr

Optical Research, Inc., 864 F.2d 1467 (9th Cir. 1988), cert.

denied, 493 U.S. 809 (1989), and United States v. Hammoud, 381 F.3d

316 (4th Cir. 2004) (en banc), vacated on other grounds, 543 U.S.

1097 (2005), both involving government designations that juries

were   required    to   accept.      But    crucially,     in    both    cases   the

government designations at issue were made before the defendants'

allegedly unlawful conduct occurred. See Hammoud, 381 F.3d at 331;

Spawr Optical Research, Inc., 864 F.2d at 1468-69.                  To determine

whether   the     defendants   committed        the   charged    actus    reus   by

violating the laws as they existed at the time, the trial courts

simply had to determine whether the prior designations had actually

been made.      See Spawr Optical Research, Inc., 864 F.2d at 1473;

Hammoud, 381 F.3d at 331.            In this case, no State Department

designation had been made at the time that the defendants engaged

in the charged conduct.

           Perhaps it would have been possible for the prosecution

to persuade the jury--beyond a reasonable doubt--that the phase

shifters really did fall within the Munitions List restrictions as

those restrictions stood at the time of the defendants' exports.

For instance, the prosecution could have presented evidence that

the phase shifters were designed for use with other Category XI


                                         -30-
equipment and that they were not in normal commercial use.                     22

C.F.R. § 121.1(c)(XI)(c).         Here, we only go so far as to say that

under the existing statutory and regulatory scheme, the question of

whether phase shifters were items controlled by Category XI(c) of

the Munitions List was a question for the jury--not a question that

could be decided ex post by the State Department as a matter of

law.

           We     acknowledge        that     instructional     error    is   not

necessarily grounds for reversal, even when the error amounts to

the complete omission of an element of the charged offense.                As the

Supreme Court has held, "where a reviewing court concludes beyond

a reasonable doubt that the omitted element was uncontested and

supported by overwhelming evidence, such that the jury verdict

would   have    been    the   same    absent     the   error,    the    erroneous

instruction is properly found to be harmless."                  Neder v. United

States, 527 U.S. 1, 17 (1999); see also United States v. Gerhard,

615 F.3d 7, 29 (1st Cir. 2010).                But here, the defendants did

contest the prosecution's claim that the phase shifters fell within

Category XI(c) of the Munitions List at the time of the export,

thus making this case different from Neder.              In any event, given

the dissension between the State and Commerce Departments on this

very    matter,    we    cannot       "conclude[]      beyond    a     reasonable

doubt . . . that the jury verdict would have been the same absent

the error."     Cf. Neder, 527 U.S. at 17.


                                       -31-
           We also acknowledge that our holding means that in at

least some cases involving Category XI(c) of the Munitions List,

the question of whether a particular part fell within Category

XI(c) of the Munitions List at the time of the alleged export will

be a question for the jury.      This is not out of the ordinary.

Juries are "commonly called upon to decide complex cases."           Green

Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.

1993). These include highly technical patent and tax cases as well

as cases concerning terrorism and espionage.          So too, juries are

capable of determining whether phase shifters are specifically

designed for military use with the items listed in Munitions List

Categories XI(a) and (b) and whether they are exempt from the

restrictions due to "normal commercial use."          Although permitting

juries to decide questions like these may complicate enforcement of

our nation's export control regime, the constitutional rights at

issue--the guarantee of due process of law, the right to a jury

trial,    the   protection   against     ex   post   facto   laws--are   of

"surpassing importance."     Apprendi, 530 U.S. at 476.11


     11
      In any event, as defense counsel noted at oral argument, it
appears that these complications may be largely avoided through the
State Department's own recently proposed amendment to Category XI
of the Munitions List, which would revise that provision,
especially subsection XI(c), to include a "positive list" of
specific controlled items in place of its current catalogue of
generic descriptions. See Amendment to the International Traffic
in Arms Regulations: Revision of U.S. Munitions List Category XI
and Definition for "Equipment," 77 Fed. Reg. 70,958 (proposed Nov.
28, 2012) (to be codified at 22 C.F.R. pt. 121).      The proposed
revision of Category XI(c) appears to include phase shifters

                                  -32-
           Our decision to vacate the Munitions List convictions

only affects two of the seventeen counts on which Wu was convicted

and two of the thirteen counts on which Wei was convicted.12

B.   Commerce Control List (CCL) Counts

           On the Commerce Control List ("CCL") counts, Wu and Wei

were convicted on charges that they exported dual-use electronic

components to China repeatedly between May 2004 and May 2007.   As

with the Munitions List counts, Wu and Wei challenge the jury

instructions, although they also argue that their conduct was

perfectly legal under the relevant regulations and that there was

insufficient evidence for the jury to conclude otherwise.

           Statutory and Regulatory Framework.   The International

Emergency Economic Powers Act ("IEEPA") imposes criminal penalties



specifically within its ambit, see id. at 70,963, and so, if
finalized, it would permit the government to prosecute future
exporters without proving anew each time that phase shifters are
within the scope of the Munitions List.
     12
      Because we vacate the Munitions List convictions on the
grounds that the district court's charge improperly wrested the
actus reus question from the jury, we do not reach the defendants'
argument that the jury instructions with respect to the mens rea
element were fatally flawed. According to the district court's
instructions, the jury could find that the mens rea element of the
Munitions List counts had been met if "the defendants willfully
made themselves blind to th[e] fact" that phase shifters were
defense articles on the Munitions List.     Wu and Wei argue that
allowing them to be convicted on the basis of "willful blindness"
improperly lowered the mens rea requirement in § 2778(c).       See
generally United States v. Roth, 628 F.3d 827, 834 (6th Cir. 2011)
(noting that "circuits have interpreted the willfulness element of
section 2778(c) and produced different results," and compiling
cases), cert. denied, 132 S. Ct. 94 (2011).

                               -33-
on any person who "willfully commits . . . or willfully conspires

to commit" a violation of regulations issued under the Act.               50

U.S.C. §     1705(c).   The    IEEPA's penalty     provision    applies   to

violations of the Export Administration Regulations (EAR), 15

C.F.R. pts. 730-774.    See generally United States v. Zhi Yong Guo,

634 F.3d 1119, 1121-22 (9th Cir.), cert. denied, 131 S. Ct. 3041

(2011). Five provisions of the EAR are especially relevant to this

case.

             First, the CCL describes items that are subject to the

EAR and assigns Export Classification Control Numbers (ECCNs) to

various categories of commodities, software, and technology.              See

15 C.F.R. § 774.1 & Supp. No. 1.       The CCL covers "dual use" items,

i.e., items that have commercial as well as military applications.

See id. § 730.3; Micei Int'l v. Dep't of Commerce, 613 F.3d 1147,

1150 (D.C. Cir. 2010).

             Second, the Commerce Country Chart, 15 C.F.R. pt. 738

Supp. No. 1, assigns countries to various categories based on the

risk that exports to those countries will pose a threat to U.S.

national security or other vital interests.         Even though Hong Kong

has been a special administrative region of the People's Republic

of   China   since   1997,    Hong   Kong   and   China   are   categorized

differently for EAR purposes.        Hong Kong is subject to "NS Column

1" controls (as is every other country except Canada), while China

is subject to "NS Column 1" and "NS Column 2" controls.


                                     -34-
          Third,    the     EAR's    "General    Prohibition       One,"   id.   §

736.2(b)(1), prohibits the export and reexport of controlled items

to certain countries without a license or license exception.                 The

application of General Prohibition One depends on the Export

Classification Control Number of the item in question and the

Commerce Country Chart category of the country of destination. For

example, electronic components in the ECCN 3A001 category cannot be

exported or reexported to "NS Column 2" countries without a license

or license exception (although they may, in general, be exported or

reexported to "NS Column 1" destinations).

          Fourth,    a     section   titled     "Important    EAR    terms   and

principles," id. § 734.2, defines the words "export" and "reexport"

for purposes of the regulations.         Most importantly, the so-called

"deemed export" provision in that section states that:

          For purposes of the EAR, the export or
          reexport of items subject to the EAR that will
          transit through a country or countries or be
          transshipped in a country or countries to a
          new country or are intended for reexport to
          the new country, are deemed to be exports to
          the new country.

Id. § 734.2(b)(6).

          Fifth,     and    finally,    a     section     titled    "Additional

permissive   reexports     (APR),"    id.   §   740.16,    allows    unlicensed

reexports of certain items from "cooperating countries" (a category

that includes Hong Kong) to destinations in "Country Group D:1" (a




                                     -35-
category that includes China).    Id. § 740.16(a); see also id. pt.

740 Supp. No. 1.

          The items at issue here are digital-to-analog and analog-

to-digital converters.   While such converters are used in ordinary

audio and video players and cell phones, Wu and Wei allegedly

exported converters that were rated for operation over an ambient

temperature range of minus 55 degrees Celsius (minus 67 degrees

Fahrenheit)    to    125     degrees     Celsius    (257    degrees

Fahrenheit)--specifications more consistent with military systems

than with household electronic appliances.

          CCL Jury Instructions.    Wu and Wei's first argument for

vacating the CCL convictions is similar to the challenge that they

raise to the Munitions List counts: an ex post facto determination

by a government official that the items at issue fall within the

relevant export control category cannot substitute for a jury

finding that, at the time of export, the items were subject to

license requirements.    However, the concerns about ex post facto

lawmaking that control our analysis of the Munitions List counts do

not lead to the same conclusion here.

          By the time of the first converter shipment charged in

the indictment (May 8, 2004), analog-to-digital and digital-to-

analog converters rated for operation in the ambient temperature

range of -55 degrees Celsius to 125 degrees Celsius were already

listed on the CCL and assigned an Export Classification Control


                                 -36-
Number of 3A001, meaning that they were subject to NS Column 2

controls and could not be exported to China without a license.   See

15 C.F.R. pt. 774 Supp. No. 1 (2003); Implementation of the

Wassenaar Arrangement List of Dual-Use Items, 65 Fed. Reg. 43,130,

43,135 (July 12, 2000).    The items allegedly exported on May 8,

2004--sixty Intersil digital-to-analog converters with part number

CA3338AD--clearly fall within the scope of the Commerce Control

List's ECCN 3A001 category; one can ascertain as much by comparing

the ordering information provided by the manufacturer with the

relevant regulation. Compare Intersil Corp., CA3338, CA3338A (File

No. 1850.2), at 10-11 (Aug. 1997) (stating that the temperature

range for part number CA3338AD is -55 degrees Celsius to 125

degrees Celsius), with 15 C.F.R. pt. 774 Supp. No. 1.

          At trial, an expert witness from the Commerce Department

walked the jury through the steps involved in determining whether

a particular part requires a license for export under the CCL, and

the government presented a chart summarizing the results of the

expert's analysis with respect to other charged parts. Cf. Fed. R.

Evid. 1006 (admissibility of summary or chart to prove content of

voluminous records).    Wu and Wei give us no cause to doubt any of

these determinations.

          Here, the district judge properly instructed the jury

that to meet its burden with respect to the CCL counts, the

government had to prove beyond a reasonable doubt "that the charged


                                -37-
item was classified with an Export Control Classification Number

3A001 of the Commerce Control List at the time it was exported."

But the district judge followed this up by saying:

           You should not consider the appropriateness of
           the determinations made by the Department of
           Commerce. You may only consider whether the
           government has proven beyond a reasonable
           doubt   that   the   Secretary   of   Commerce
           determined that the charged parts fell within
           the ECCN of the Commerce Control List.

           Wu and Wei argue that the last sentence of the above-

quoted instruction improperly wrested a question of fact from the

jury under the circumstances of the case.         If the underscored

sentence   referred   to   the     Commerce   Department's     ex     post

determination--issued as part of the Chitron investigation--that

the charged parts fell within ECCN 3A001, then we would agree.         An

ex post determination does not substitute for a finding from the

trier of fact that at the time of the alleged exports--based on

then-existing   regulations--the    charged   parts   fell   within    the

relevant CCL category.

           But that does not resolve the matter.      As we have noted,

the harmless error standard applies to instructional errors, see

Neder, 527 U.S. at 17, and here, Wu and Wei have not explained how

they were prejudiced by the instructional error. It is uncontested

that the items described in the indictment carried specifications

that placed them squarely within the ECCN 3A001 category.           Wei's

appellate brief says that "whether these parts were controlled by


                                 -38-
the CCL was a contested issue," but the record appendix page

numbers cited do not support this claim.            Wu and Wei do not argue,

for   example,   that    the   charged   items   were   not   analog/digital

converters or that the converters were incapable of operating over

the ambient temperature ranges for which they were rated.                 So

although the question of whether the items at issue fell within

ECCN 3A001 at the time of the alleged export should have been

submitted to the jury, we are confident that a properly instructed

jury would    have   answered    that    question    in the   affirmative.

Accordingly, under Neder, we conclude that the error was harmless.

            Rejection of Defense of Additional Permissive Reexport

(APR) Exception.        Wu and Wei also argue that as they read the

license exception for additional permissive reexports (APRs), no

license was required when the controlled converters were exported

to Hong Kong and then reexported to China.              We dispose of this

argument rather easily, as the argument is based on a misreading of

the APR provision.       That provision only applies to "[r]eexports"

from nations in Country Group A:1 and "cooperating countries."            15

C.F.R. § 740.16(a) (emphasis added).         (Hong Kong is a "cooperating

country."    Id. pt. 740 Supp. No. 1.)        At most, the APR provision

exempts Hong Kong-based merchants from U.S. licensing requirements

when they import items from the United States and reexport those

items to China.      But Chitron-US was not a reexporter; it was an

exporter.    And the APR provision simply does not speak to the


                                    -39-
question of whether an exporter needs a license when it ships

listed items abroad.

            The     Commerce    Department            first   promulgated       the    APR

provision as part of an effort "to simplify, clarify, and make the

[Export    Administration           Regulations]         more     user-friendly."

Simplification of Export Administration Regulations, 61 Fed. Reg.

12,714 (Mar. 25, 1996).         One can see how the APR exception might

advance this objective.         For instance, in the case of items that

fall within ECCN 3A001, the exporter already must obtain a license

before    shipping    such     items    to    a       freight-forwarder       or     other

middleman in an "NS Column 1" country (e.g., Hong Kong) when the

items are "intended for reexport" to an "NS Column 2" country

(e.g.,    China).        See   15    C.F.R.       §    734.2(b)(6).        Under      such

circumstances, it would be duplicative to require that the freight-

forwarder or reexporter in the "NS Column 1" country also apply for

an additional license before proceeding with the contemplated

transaction.

            But   although      the    APR    provision         provides    a   license

exception for the overseas freight-forwarder or reexporter, it does

not relieve the U.S.-based exporter of the burden of complying with

the EAR.    If it did, then the APR provision would allow exporters

to evade EAR requirements by routing shipments through countries

subject    to   looser    controls.          Cf.      Lachman,   387   F.3d     at    52

(rejecting defendant's proposed interpretation of export controls


                                        -40-
where it "would permit easy evasion of the regulation").                    By their

very    terms,    the   deemed-export      provision     and   the    APR    license

exception address different classes of merchants:                    the former is

directed to those such as Chitron-US who export controlled items

from the United States with the intention that the items will be

reexported to a particular prohibited destination, while the latter

grants relief to overseas merchants who may sometimes deal in parts

of U.S. origin.13

            Sufficiency of the Evidence.          In the alternative, Wu and

Wei argue that even if a license was required for the shipment of

controlled       converters   to   China    via   Hong    Kong,      the    evidence

presented at trial was insufficient to show that the converters

actually reached China.            Our review is de novo, viewing the



       13
      In a futile attempt to complicate matters, the defendants
draw our attention to a separate subsection of the APR, 15 C.F.R.
§ 740.16(i), which applies only to Sudan. That subsection allows
for reexports of certain controlled items to Sudan but adds a
clarification: "However, the export from the United States to any
destination with knowledge that [the controlled items] will be
reexported directly or indirectly, in whole or in part to Sudan is
prohibited without a license."     The defendants claim that the
clarification would be superfluous unless the APR already allowed
the export of controlled items from the United States with the
knowledge that those items would be reexported to a listed country.
But the fact that the drafters of the APR included an extra
clarification in the Sudan subsection does not alter the plain
meaning of the rest of the APR's text. Where drafters include a
clarification "as a means of reminding those subject to the new
laws of . . . self-operative, previously enacted sanctions," the
clarification "necessarily establish[es] no more than that [the
drafters] chose in some cases to make assurance doubly sure."
United States v. Hansen, 772 F.2d 940, 946-47 (D.C. Cir. 1985)
(Scalia, J.), cert. denied, 475 U.S. 1045 (1986).

                                     -41-
evidence "in the light most favorable to the verdict" and reversing

"only where no rational factfinder could have concluded that the

evidence   presented      at   trial,   together   with   all   reasonable

inferences, established [this] element of the crime beyond a

reasonable doubt."       United States v. Green, 698 F.3d 48, 56 (1st

Cir. 2012) (internal quotation mark omitted), cert. denied, 2013

U.S. LEXIS 1942 (Mar. 4, 2013).

           Here, there was ample evidence to support the jury's

finding.   Specifically:

           -Sales spreadsheets in Wu's possession at the
           time of his arrest indicated that the
           converters in question were destined for
           customers whose listed addresses were in
           China;

           -Three Chitron-US employees testified that
           once parts reached Hong Kong, they were
           forwarded to a Chitron office in Shenzen,
           China;

           -Chitron-US brochures said that the company's
           "sole distributor" was based in Shenzen;

           -Wu said on his resume that as President of
           Chitron Electronics, he "[s]upervised and
           coordinated business with Chitron USA to
           import all its purchased goods into China"
           (emphasis added); and

           -Wei acknowledged at trial that a document she
           last saved on her computer in October 2006
           said that "Chitron's customer base is 99
           percent Mainland Chinese customers."

           A sufficiency-of-the-evidence challenge will fail even

when the evidence does "not exclude every reasonable hypothesis of

innocence";   if   the    evidence   "can   support   varying   reasonable

                                     -42-
interpretations, the jury is entitled to choose among them."

United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.),

cert. denied, 464 U.S. 855 (1983).               Here, there is scant support

for Wu and Wei's hypothesis of innocence.                      It was certainly

"reasonable"       for     the    jury   to   conclude     that    the    controlled

converters reached China (and might well have been unreasonable for

the   jury    to     conclude      otherwise).      And     the    fact    that    the

government's case relied largely on circumstantial evidence does

not detract from its persuasive force.                     See United States v.

Cortés-Cabán, 691 F.3d 1, 12 (1st Cir. 2012).

C.    Conspiracy Count

             While    Wu    and    Wei   were    charged    with    one    count   of

conspiracy, that one count covered both conspiracy to export

defense articles on the Munitions List and conspiracy to export

commodities on the Commerce Control List.                  Wu and Wei argue that

the district court's erroneous instructions regarding the Munitions

List counts "infected" the conspiracy count.                 We disagree.

             It is black letter law that a defendant can be convicted

of conspiracy to commit a substantive offense even if he is

acquitted of the substantive offense itself.                      United States v.

Ríos-Ortiz, No. 11-2200, __ F.3d __, 2013 U.S. App. LEXIS 4068, at

*15 (1st Cir. Feb. 27, 2013) (compiling cases).                     For example, a

defendant can be convicted of conspiracy to steal a trade secret

even if the documents he sought to steal did not in fact contain


                                         -43-
trade secrets.      United States v. Yang, 281 F.3d 534, 542-43 (6th

Cir. 2002), cert. denied, 537 U.S. 1170 (2003); United States v.

Hsu, 155 F.3d 189, 203-04 (3d Cir. 1998).       Similarly, a defendant

can be convicted of conspiracy to distribute cocaine and narcotics

even though, unbeknownst to him, the substances he was distributing

turned out to be innocuous.     United States v. Pietri, 683 F.2d 877,

879-80 (5th Cir. 1982); see also United States v. Roman, 728 F.2d

846, 859 (7th Cir. 1984) ("To establish conspiracy [to distribute

L.S.D.] the items believed to be L.S.D. need not in fact be

L.S.D."), cert. denied, 466 U.S. 977 (1984); United States v.

Murray, 527    F.2d   401, 408-09   (5th   Cir. 1976)    (conspiracy   to

distribute heroin even though substance turned out to be lactose).

"[T]he impossibility that the defendants' conduct would result in

consummation   of     the   contemplated   substantive   crime   is    not

persuasive or controlling."       United States v. Meyers, 529 F.2d

1033, 1037 (7th Cir.), cert. denied, 429 U.S. 894 (1976).              See

generally United States v. Fiander, 547 F.3d 1036, 1042-43 (9th

Cir. 2008) (compiling cases).

          Just as a defendant can be convicted of conspiracy to

steal trade secrets even when the information he conspires to steal

is not in fact a trade secret, and just as a defendant can be

convicted of conspiracy to distribute narcotics even when the

substance he conspires to distribute is not in fact a narcotic, so

too can a defendant be convicted of conspiracy to export items on


                                   -44-
the Munitions List even when the items he conspires to export are

not in fact on the Munitions List.              Thus, whether the phase

shifters that Wu and Wei exported to China were actually on the

Munitions List was not essential to the conspiracy charge.               The

fact that the district court wrested this question from the jury

does not undermine the conspiracy count, because this question was

never part of the conspiracy inquiry anyway.

             Wu and Wei also renew their argument that the district

court improperly instructed the jury that the mens rea element of

the Munitions List counts required only a finding of "willful

blindness," and they claim that this instructional error likewise

infected the conspiracy charge.         As noted above, we do not reach

the question of whether the mens rea requirement of willfulness in

22 U.S.C. § 2778(c) encompasses "willful blindness," as we vacate

that the Munitions List convictions on other grounds.            See supra

note 12.     With regard to the conspiracy count, the district court

instructed the jury that willfulness was an element of the crime

and   that   "[t]o   act   'willfully   means   to   act   voluntarily   and

intelligently with the specific intent that the underlying crime be

committed."    The court added that Wu and Wei could not be convicted

on the conspiracy count if they "act[ed] by ignorance, accident, or

mistake."     The district court did not instruct the jury that it

could convict Wu and Wei of conspiracy on a "willful blindness"

theory. Thus, the propriety of the "willful blindness" instruction


                                   -45-
in the context of the Munitions List counts has no bearing on the

validity of the conspiracy conviction.

                                    III.

            In addition to their convictions on the Munitions List

and CCL counts and the related conspiracy count, Wu and Wei were

convicted of conspiracy to file false and misleading Shipper's

Export Declarations; they were likewise convicted of violating 18

U.S.C. §§ 2 and 1001(a)(1) in connection with the inaccurate SEDs.

See 18 U.S.C. § 2 (criminal liability for aiding and abetting

offense against the United States); id. § 1001(a)(1) (criminal

liability for falsifying, concealing or covering up a material fact

in a matter within the federal government's jurisdiction).           Wu and

Wei argue that the evidence supporting those convictions was

legally insufficient and that the jury instructions on those counts

were erroneous.      These arguments fail.

            Statutory and Regulatory Framework.        Acting within its

authority    under    13   U.S.C.   §   301   (authorization   to   collect

information from exporters and importers), the Commerce Department

has promulgated the Foreign Trade Regulations, 15 C.F.R. pt. 30,

which, inter alia, require exporters to file "Shipper's Export

Declarations" electronically for all goods being sent to foreign

countries.    See 15 C.F.R. § 30.2(1).        Although certain shipments

are exempt from the SED requirement when the aggregate value of the

items is $2,500 or less, see id. § 30.37(a), SEDs still must be


                                    -46-
filed for goods requiring an export license regardless of value,

id. § 30.2(a)(1)(iv).

           The SED form instructs exporters to specify the "ultimate

consignee" and the "country of ultimate destination" for the items

being shipped. The governing regulations distinguish the "ultimate

consignee"     from   the   "intermediate   consignee":    the   ultimate

consignee is either the "end user" or the party "to whom final

delivery . . . of the goods will be made," while the intermediate

consignee is the agent who acts "with the purpose of effecting

delivery of items to the ultimate consignee."           Id. § 30.1.   The

country of ultimate destination is the "country where the goods are

to be consumed, further processed, stored, or manufactured, as

known to the [U.S. principal party in interest] at the time of

export."   Id.   The U.S. principal party in interest is the "person

or legal entity in the United States that receives the primary

benefit . . . from the export transaction."       Id.

           Challenges to the SED Counts.        The defendants do not

seriously dispute that Chitron-US filed false SEDs:           Wei listed

Hong Kong-based freight forwarders as the ultimate consignees on

some forms and listed Chitron's Hong Kong office as the ultimate

consignee on other such forms, when in fact the ultimate consignees

were the purchasers in mainland China.       Moreover, Wei incorrectly

listed Hong Kong--rather than China--as the country of ultimate

destination.     The regulations regarding SEDs are quite clear as to


                                   -47-
the meaning of the relevant terms, and the ex post facto concerns

governing our analysis of the Munitions List counts are inapposite

here, as these rules were in place for more than a quarter century

before the shipments in question.        See 41 Fed. Reg. 9134 (Mar. 3,

1976) (republication of 15 C.F.R. pt. 30).

          Rather, the defendants argue that (1) the government

failed to prove that there was an agreement between Wu and Wei to

file false SEDs, (2) the government failed to prove that Wei knew

the SEDs were incorrect, and (3) the jury instructions regarding

the SED counts improperly incorporated different definitions of key

terms than the definitions on which Wei relied.       We consider (and

reject) each of these arguments in turn.

          Proof of Agreement.     "The touchstone of conspiracy is an

agreement to do an unlawful act," United States v. Martinez-Medina,

279 F.3d 105, 113 (1st Cir.), cert. denied, 537 U.S. 921 (2002),

and the government's failure to produce evidence sufficient to show

such an agreement would be grounds for reversal. See, e.g., United

States v. Paret-Ruiz, 567 F.3d 1, 8 (1st Cir. 2009).         But "[a]n

agreement between coconspirators may be proven by circumstantial

evidence, and it may be tacit."    Id. at 6.    Here, a reasonable jury

could certainly have concluded that Wu and Wei agreed--at least

tacitly--to file false SEDs.

          The evidence supporting the conspiracy charge included:




                                  -48-
           -An e-mail from Wu to Wei in which Wu said,
           "you do not have to say you sell parts to
           China";

           -Instructions from Wu to purchasers in
           Chitron-US's Massachusetts office in which Wu
           wrote that "[t]he key is to avoid submitting
           end user info"; and

           -An e-mail from Wei to Wu in which she
           described complications in filling out an SED
           form and then wrote, "In order not to waste
           too much time, I have to reduce the value
           under 2500 to make it simple."

           Since exporters do not need to file SEDs for certain

shipments of items worth $2,500 or less, see 15 C.F.R. § 30.37(a),

this last piece of evidence supports the inference that Wei was

trying to circumvent SED requirements--and that she was doing so

with Wu's tacit consent.      "Proof of [a defendant's] involvement in

the   conspiracy    may   consist   of     indirect      evidence,    including

reasonable inferences drawn from attendant circumstances."               United

States v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir.) (internal

quotation marks omitted), cert. denied, 544 U.S. 1007 (2005).

Here, the attendant circumstances included the fact that Wu and Wei

communicated daily about all aspects of Chitron's operations, along

with their obvious motive (in light of the Munitions List and

Commerce   Control    List   rules)      to   misrepresent      the     ultimate

destination as Hong Kong.       On this basis, a "rational trier of

fact"   certainly    could   have   found     Wu   and   Wei   guilty    of   the

conspiracy charged.       See United States v. Alverio-Meléndez, 640

F.3d 412, 418 (1st Cir.), cert. denied, 132 S. Ct. 356 (2011).

                                    -49-
             Proof of Knowledge.    For a false statement to trigger

criminal liability under 18 U.S.C. § 1001, "the false statement

must be made knowingly and willfully." United States v. Gonsalves,

435 F.3d 64, 72 (1st Cir. 2006); see also United States v. Yermian,

468 U.S. 63, 72-74 (1984).      "Willfulness . . . means nothing more

in this context than that the defendant knew that his statement was

false when he      made it or--which amounts in law to the same

thing--consciously disregarded or averted his eyes from its likely

falsity."     Gonsalves, 435 F.3d at 72.

             Wei testified at trial that she thought that the term

"ultimate consignee" meant "the person or the company who received

the package" and that the term "country of ultimate destination"

meant "the country where the package will land."            She now argues

that she arrived at this understanding based on a Census Bureau

document entitled "Correct Way to Complete the Shipper's Export

Declaration," which she received by fax from a UPS employee in

2002.     But the Census Bureau document defines "ultimate consignee"

as "the foreign party actually receiving the merchandise for the

designated    end-use   or   the party    so   designated   on   the   export

license."14 A jury could easily reject Wei's claim that she thought

the freight forwarder or the Chitron branch office in Hong Kong was

the party "receiving the merchandise for the designated end use,"



     14
      Since Chitron-US had no export license, the last clause in
the definition of "ultimate consignee" is irrelevant here.

                                   -50-
especially when Wei knew that Chitron's customers were primarily in

mainland China.   The jury was under no obligation to credit Wei's

testimony.   See United States v. Kenrick, 221 F.3d 19, 31 n.14 (1st

Cir.) (en banc), cert. denied, 531 U.S. 961 (2000).

          In any event, a former Chitron-US employee testified that

prior to the filing of the false SEDs at issue, she spoke on the

telephone with a Commerce Department official who explained that

the "ultimate consignee" is "the end-user who is using the part

where it's ultimately going, and it's not being shipped to anywhere

else."   The employee further testified that she relayed this

information to Wei.    So even if Wei had misinterpreted the SED

requirements in the first instance, the jury could conclude that

her misimpression had been corrected by her employee.

          Jury Instructions.    Finally, Wu and Wei argue that the

jury instructions improperly incorporated language from the Code of

Federal Regulations defining the terms "ultimate consignee" and

"country of ultimate destination" when the instructions should have

been limited to the definitions in the Census Bureau document on

which Wei allegedly relied.    In so arguing, Wu and Wei confuse the

actus reus and mens rea elements of the relevant crime.

          To convict the defendants under the false statements

statute, the jury had to find (1) that the defendants' answers on

the SED form "falsifie[d], conceal[ed], or cover[ed] up . . . a

material fact" (the actus reus) and (2) that the defendants did so


                                -51-
"knowingly and willfully" (the mens rea). See 18 U.S.C. § 1001(a).

The actus reus requirement means that the answers Wei gave on the

SED form to the questions about "ultimate consignee" and "country

of ultimate destination" must have been false or misleading,

regardless of what she and Wu believed.               Even if the defendants

thought that they had misstated the ultimate consignee or country

of ultimate destination on the SED forms (i.e., even if the

defendants acted with the requisite mens rea),15 the jury still

needed to find that they actually did misstate these material

facts.    And    to    find   that,   the    jury   needed   to   consult   the

definitions     of    "ultimate   consignee"    and    "country   of   ultimate

destination" under law (i.e., in the Code of Federal Regulations).

For that purpose, the plain language of the regulation--and not the

guidance document--is controlling.            See Nat'l Family Planning &

Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 235-36 (D.C. Cir.

1992).




     15
      Of course, the definitions in the Census Bureau document may
be relevant to mens rea:      if the jury found that Wu and Wei
genuinely believed on the basis of the guidance document that their
answers on the SED form were correct, then the requirement that
they must have acted "knowingly and willfully" would not be
satisfied.   But the defendants do not object to the mens rea
portion of the jury instructions on the SED counts.       Nor could
they, as the instructions emphasized that the mens rea element
required   the   defendants    to   have   acted   "purposely   and
voluntarily, . . . with an intention to do something that the law
forbids . . . or with the specific intent to fail to do something
that the law requires to be done."


                                      -52-
          In a last-ditch effort, Wei argues in her reply brief

that the jury instructions improperly incorporated language from

the Export Administration Regulations defining "end-user," while it

is the Foreign Trade Regulations--not the EAR--that control the

construction of terms on the SED form.       See 15 C.F.R. § 772.1

(stating that the "end-user" for the purposes of the EAR is "not a

forwarding agent or intermediary"). "[A]ppellate arguments debuted

in a reply brief are not preserved," Soto-Padró v. Pub. Bldgs.

Auth., 675 F.3d 1, 8 (1st Cir. 2012), and that alone would be fatal

to Wei's claim.   But even if the argument were not waived, it would

not succeed:   while the exact words used by the district judge in

her instructions did come from the EAR, the substance of the

Foreign Trade Regulations is nearly identical.     See 15 C.F.R. §

30.1 (ultimate consignee may be the end user or the foreign

principal party in interest, and "[i]n most cases, the forwarding

or other agent is not a principal party in interest").

          Admittedly, the Foreign Trade Regulations say that a

forwarding agent is not the ultimate consignee in "most cases,"

while the jury instructions implied that a forwarding agent is

never the ultimate consignee.      But that distinction makes no

difference to this case.    Under the Foreign Trade Regulations, a

forwarding agent would only be the ultimate consignee if the

forwarding agent was the foreign person who "receive[d] the primary

benefit, monetary or otherwise, from the transaction," 15 C.F.R. §


                                -53-
30.1, and neither Wei nor Wu argues that the Hong Kong-based

freight forwarders or the Chitron office located there "receive[d]

the primary benefit" from any of the transactions in question.

                                         IV.

          Wei separately challenges the sufficiency of the evidence

supporting her conviction on one count of immigration fraud in

connection with her September 2002 application for a U.S. Permanent

Resident Card ("Green Card").               See 18 U.S.C. § 1546(a).              The

indictment set forth two distinct theories in support of this

count.    First,        it   charged that       Wei's   Green   Card   application

concealed her earlier work for Chitron-US's predecessor entity,

Perfect Science, to cover up the fact that she had violated U.S.

immigration laws by working there between 1996 and 1998.                   Second,

it claimed that Wei lied on her application when she answered that

she did not "intend to engage in the U.S. in any activity to

violate or evade any law prohibiting the export from the United

States of goods, technology, or sensitive information."

          "The general rule is that when a jury returns a guilty

verdict   on       an    indictment      charging       several   acts     in     the

conjunctive    .    .    .   ,   the   verdict    stands   if   the    evidence   is

sufficient with respect to any one of the acts charged." Turner v.

United States, 396 U.S. 398, 420 (1970); accord United States v.

Mubayyid, 658 F.3d 35, 70 (1st Cir. 2011), cert. denied, 132 S. Ct.

2378 (2012).   However, this general rule does not apply when one of


                                         -54-
the   alternative   theories   submitted   to   the   jury   rests   on   an

unconstitutional or legally flawed premise. See Skilling v. United

States, 130 S. Ct. 2896, 2934 (2010) (citing Yates v. United

States, 354 U.S. 298 (1957)); Hedgpeth v. Pulido, 555 U.S. 57, 60

(2008) (per curiam).    In such cases, we can affirm the conviction

only if we conclude "beyond a reasonable doubt" that "the jury

verdict would have been the same absent the error."            Neder, 527

U.S. at 17; cf. Hedgpeth, 555 U.S. at 61 (Neder harmless-error

analysis applies to alternative-theory errors).

           Here, we find that sufficient evidence supported the

charge that Wei misrepresented her employment history on her Green

Card application to hide her previous visa violations.          And since

the jury instructions with regard to the second theory were neither

unconstitutional nor otherwise fatally flawed, Wei's conviction for

immigration fraud must stand.

           The statute, 18 U.S.C. § 1546(a), makes it a felony to

submit false information on an application for a visa or other

immigration document.    The statute "unambiguously extends a mens

rea requirement" of knowledge, United States v. Villanueva-Sotelo,

515 F.3d 1234, 1239 (D.C. Cir. 2008), cert. denied, 556 U.S. 1234

(2009); see also United States v. Archer, 671 F.3d 149, 154 (2d

Cir. 2011), and it only applies to false statements with respect to

"material" facts.    United States v. Boskic, 545 F.3d 69, 85 (1st

Cir. 2008), cert. denied, 555 U.S. 1175 (2009).        A false statement


                                  -55-
on an immigration application is "material" if "disclosure of the

true facts would have led the government to make an inquiry that

might have uncovered other facts" that might lead to denial of the

application.    United States v. Fedorenko, 597 F.2d 946, 951 (5th

Cir. 1979); see also Kungys v. United States, 485 U.S. 759, 770

(1988).

            Applicants for a Green Card must submit a form listing

their employment history over the previous five years.          When Wei

filled out this form in 2002, she only listed her employment at

Chitron from May 1998 onwards (the month in which she was issued an

employment authorization card).        She omitted any mention of her

work   at   Perfect    Science,   as     Chitron's   branch   office   in

Massachusetts was formerly known, even though she had been under

contract to run the branch office from June 1996 onwards.

            Wei argues that her work for Chitron before May 1998 was

as a "volunteer."     While it is true that volunteer work need not be

reported as employment for Green Card application purposes, the

jury could reasonably conclude that Wei was no volunteer.              The

contract she signed with Wu in June 1996 provided her with a 5

percent stake in Chitron "[a]s a compensation." While the contract

did designate Wei as a "volunteer," the fact that she was receiving

stock-based compensation in exchange for her services clearly

belies that designation.




                                  -56-
             The government also introduced a May 1997 e-mail from Wei

to Wu in which she mentioned that a lawyer had told her that her

work for Wu's company might violate the restrictions of her student

visa. A reasonable jury could rely on this e-mail as evidence that

Wei possessed the requisite mens rea for immigration fraud. As for

materiality, Wei's own attorney read into the record a statement

from the U.S. Citizenship and Immigration Services adjudicator who

handled Wei's case; the adjudicator stated that if she had known

that Wei's employment history was incomplete or inaccurate, that

would have "trigger[ed] further investigation."                 This alone is

enough to render the false statement "material," since a further

investigation could have revealed that Wu and Wei were not in

compliance with U.S. export laws.           Cf. Fedorenko, 597 F.2d at 951.

             Thus, an ample evidentiary foundation supports the charge

that   Wei   lied     about    her   past   employment   on    her   Green    Card

application.       Her conviction must stand unless the instructions

regarding    the    government's      alternative    theory    of    immigration

fraud--that     Wei     lied    about    her   intent    to    violate   export

restrictions--were unconstitutional or otherwise invalid.                    While

Wei    argues   that    the    errors   inherent    in   the   Munitions      List

instructions necessarily infect the immigration count, we reject

this suggestion.

             The question which led us to vacate the Munitions List

convictions is separate from whether, as of September 2002, Wei


                                        -57-
lied about whether she intended to violate the Munitions List

restrictions.      One can intend to violate a law on Date 1 without

actually violating that law on Date 2, just as one can violate a

law on Date 2 without having intended to do so on Date 1.

Accordingly, if the jury convicted Wei of immigration fraud because

it thought she intended, as of September 2002, to violate the

Munitions List controls, the immigration fraud conviction could

stand regardless of whether Wei ever did ship Munitions List-

restricted parts to China.

            Wei    also   argues     that   the   Export   Administration

Regulations (which include the Commerce Control List) do not

qualify as laws "prohibiting" the export of any goods because the

EAR merely requires a license under certain circumstances.          There

is no basis for the argument.         Wei was convicted of violating a

provision of the EAR entitled "General Prohibition One," see 15

C.F.R. § 736.2(b)(1), which forbids the shipment of dual-use parts

to specified countries without a license.

            Since sufficient evidence supports at least one of the

two theories on which the government charged immigration fraud, and

since Wei    has   identified   no   fatal flaws in    the   instructions

regarding the other theory of immigration fraud, our inquiry into

this count is at an end.16


     16
      We also reject Wei's argument that the district court
deprived her of her constitutional right to present a defense by
excluding an ostensibly exculpatory e-mail.       Wei sought to

                                     -58-
                                V.

          Wu separately alleges that the district court violated

his Sixth Amendment right to self-representation when it denied his

request for a continuance so that he could prepare to conduct the

case on his own, and later denied his related request to hire new

trial counsel.   The district court was entirely reasonable in its

handling of Wu's last-minute request to change attorneys, and we

reject this argument.



introduce an e-mail that she sent to an attorney in January 2003
seeking the name of a lawyer with expertise in export control
regulations.    In the e-mail, Wei said that Chitron "always
follow[ed] the rules" and did not "want to do any illegal business"
but that "sometimes we are not 100% sure about the law."       When
Wei's trial counsel sought to introduce the e-mail into evidence
during direct examination of Wei on the twentieth day of the trial,
the prosecutor objected that the defense had not shared this e-mail
with the government until the morning of Wei's testimony. During
a sidebar conference on the issue, before the district court issued
any formal ruling on the objection, Wei's counsel volunteered:
"I'm not going to sneak it up on them, Judge. I won't use it."
     The next day, during the government's cross-examination of
Chitron compliance officer Bo Li, the government asked Li whether
he was "privy to any discussions with Chitron's lawyer about
compliance policy," and Li said he was not. Wei's counsel argued
at sidebar that the questioning of Li "opened the door" to the e-
mail, but the district court rejected the defense lawyer's renewed
request to introduce the message into evidence.
     The district court's handling of this issue was entirely
proper. Notably, the initial decision not to introduce the e-mail
was made by Wei's counsel, not the district court. Nor did Li's
testimony "open" any "door": Li did not join Chitron until 2005,
and there is no suggestion that Li was privy to the January 2003
correspondence. The right to introduce evidence in one's defense
is subject to reasonable restrictions, see Evans v. Verdini, 466
F.3d 141, 148 (1st Cir. 2006), cert. denied, 549 U.S. 1351 (2007),
and the district court certainly had the discretion to disallow the
e-mail on Day 21 of the trial after Wei's counsel had already
withdrawn his request to introduce it.

                               -59-
           On the nineteenth day of the trial--the day after the

prosecution rested its case--Wu informed the district court for the

first time that there were "a lot of issues" between himself and

his trial counsel, and that he did not think that his attorney

"represented [his] best interest."           When asked to explain the

source of the disagreement, Wu responded simply that he and his

lawyer "ha[d] many fundamental disagreements about this case." The

court told Wu that it could not start the trial all over again

based only on that explanation, and suggested that Wu think it over

and that it would discuss the matter with him at the end of the

day.

           That afternoon, the court again asked Wu to explain the

nature of his disagreements with trial counsel.                At first, Wu

expressed the same vague concerns that he had raised earlier. When

the court again pressed him to say more, Wu claimed that his lawyer

had not shown the jury the right pages of certain exhibits, that he

had failed to call two potential witnesses, and that he had not

elicited important evidence from two witnesses who had already

testified and whom Wu wanted to recall for further questioning.

           The   district   court   explained     to   Wu   that   he   had    an

absolute   right   to   counsel,    but    that   at   this   stage     of    the

proceedings, it was too late to give him a continuance to find a

new attorney based on the kind of "dilatory" complaints he had

raised.    The court offered Wu three choices: he could proceed pro


                                    -60-
se, he could continue with his trial counsel as his attorney, or he

could represent himself with that counsel assisting as standby

counsel.    Wu asked for a three day continuance to find a new

attorney. The court denied Wu's motion and suggested that he speak

to the duty federal defender in order to think through his options.

Wu accepted this proposal.

            The next morning, the trial's twentieth day, Wu told the

district court that he had decided to represent himself with the

assistance of the duty federal defender. The court explained to Wu

that it could not appoint him a public defender because he was not

indigent, but that it would consider allowing him to hire a new

attorney to serve as standby counsel if he could find one.    In the

meantime, Wu could proceed pro se with his current attorney as

standby counsel. Wei's attorney then explained that if Wu would be

representing himself going forward, Wei would move to sever, due to

the "spillover effect" it would have on her defense.

            Given this new complication and the importance of keeping

the jury's attention after twenty days of trial, the district court

delayed ruling on the issue until the end of the day, while the

witness on the stand continued to testify.     Wu then declared that

he wanted to question the witness himself, without any standby

attorney.    The court explained that Wu could not do that until it

made its decision on his motion to proceed pro se, and suggested




                                 -61-
that in the meantime he write down any questions that he thought

his lawyer should have asked of the witness.

          Instead, Wu announced that, "[I]f that's the case, I

would like to keep [my current lawyer] as my attorney.        I don't

have a choice."   The court asked Wu if he was sure he would like to

keep his attorney, and Wu affirmed that he would proceed with his

current lawyer "for the rest of the trial."     The trial continued in

accordance with Wu's decision.     At the end of the day, Wu's counsel

reminded the court of Wu's initial request to represent himself.

The court noted that Wu had twice confirmed that he wanted to

proceed with his current lawyer, and asked Wu if that was still the

case; Wu responded that it was.     Wu did not raise the issue again.

          Wu had an absolute right to self-representation so long

as he made his request "clearly and distinctly prior to the

beginning of trial."   United States v. Noah, 130 F.3d 490, 497 (1st

Cir. 1997).   But once trial was under way, Wu's right to self-

representation became qualified, see id., and the district court

had "considerable discretion" to grant or deny Wu's request to act

as his own lawyer.   Id. at 498.    We review such decisions for abuse

of discretion, mindful that, after trial has begun, "[t]he right to

select or refuse specific counsel is always subject to practical

courtroom constraints." United States v. Betancourt-Arretuche, 933

F.2d 89, 93 (1st Cir.), cert. denied, 502 U.S. 959 (1991).




                                   -62-
          There was no abuse of discretion here.             A district court

considering a mid-trial request to proceed pro se "must balance the

legitimate    interests   of   the   defendant      in    self-representation

against the potential disruption of the proceedings already in

progress." Noah, 130 F.3d at 498 (quoting Williams v. Bartlett, 44

F.3d 95, 99 n.1 (2d Cir. 1994)).        In this case, the district court

made every effort to inquire into the extent of Wu's disagreements

with his attorney, and then to accommodate Wu's complaints and his

desire to proceed pro se within the constraints of a complicated

and lengthy    trial.     Ultimately,       the   court   made   a   reasonable

judgment in concluding that the disruption that would result from

delaying trial and severing Wei's case outweighed Wu's qualified

interest in self-representation. Betancourt-Arretuche, 933 F.2d at

94 ("trial court has extensive discretion over 'eleventh-hour'

requests for continuances in order to substitute counsel").17


     17
      Wu also argues that the district court violated his Sixth
Amendment right to confront the witnesses against him and to
present a complete defense when it denied his request to recall for
further questioning two witnesses who had already testified. In
fact, however, Wu never moved to recall these witnesses at all--he
simply expressed the desire to recall them in the context of
explaining to the district court why he was unhappy with his
attorney's performance.    Nor did the district court deny any
request to recall witnesses. It merely explained to Wu that his
lawyer could not recall those witnesses. Regardless, the Sixth
Amendment "guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish." Stephens v.
Hall, 294 F.3d 210, 226 (1st Cir. 2002) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)), cert. denied, 537 U.S. 1129
(2003).    Wu received that opportunity and the court was not
constitutionally required to give him a second chance. See id.

                                     -63-
                                             VI.

            Accordingly, we affirm Wu and Wei's convictions on the

Commerce Control List counts (Counts 7, 12, 15, 16, 17, 18, and

19), the conspiracy count (Count 1), and the SED counts (Counts 31

and 32).         We also affirm Wu's convictions on the additional

Commerce Control List counts (Counts 21, 22, 23, 25, and 27), and

affirm Wei's conviction on the immigration count (Count 34).                             We

vacate both defendants' convictions with respect to the Munitions

List counts (Counts 4 and 5).

            We     have     said      that   "[w]hen    a   defendant       successfully

challenges one of several interdependent sentences, the proper

course     often     is     to     remand     for    resentencing      on     the   other

(nonvacated) counts."             United States v. García-Ortiz, 657 F.3d 25,

31 (1st Cir. 2011), cert. denied, 132 S. Ct. 1126 (2012).                                We

believe that such a course is appropriate here.                     "[T]he authority

to reshape a sentence when multicount convictions garner mixed

reviews    on     appeal--some        affirmed,      some   reversed--looms         as   an

integral        component        of   the    trial     judge's   broad        sentencing

discretion."        United States v. Pimienta-Redondo, 874 F.2d 9, 14

(1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989).                        Thus, we

remand to the district court for further proceedings consistent

with     this    opinion,        including--as       the    district        court   deems

appropriate--proceedings to resentence the defendants on the counts

for which we have affirmed their convictions.

            So ordered.

                                             -64-
