United States v. Arnold I. Mandel Rona K. Mandel

914 F.2d 1215 UNITED STATES of America, Plaintiff-Appellant, v. Arnold I. MANDEL; Rona K. Mandel, Defendants-Appellees. No. 88-1418. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 16, 1989. Decided Sept. 14, 1990. Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellant. Daniel F. Cook, Topel & Goodman, San Francisco, Cal., Dale A. Drozd, Blackmon and Drozd, Sacramento, Cal., for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before FARRIS, PREGERSON and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 This appeal raises the issue of whether a criminal defendant charged with exporting items on the Commodity Control List in violation of the Export Administration Act of 1979 is entitled to discovery of Department of Commerce records relied on by the Secretary in promulgating commodity control categories within which the exported items are listed. The district court held in a published opinion, United States v. Mandel, 696 F.Supp. 505 (E.D.Cal.1988), that discovery was appropriate because defendants in a criminal case are entitled to challenge the Secretary's decision to place…

This appeal raises the issue of whether a criminal defendant charged with exporting items on the Commodity Control List in violation of the Export Administration Act of 1979 is entitled to discovery of Department of Commerce records relied on by the Secretary in promulgating commodity control categories within which the exported items are listed. The district court held in a published opinion, United States v. Mandel, 696 F.Supp. 505 (E.D.Cal.1988), that discovery was appropriate because defendants in a criminal case are entitled to challenge the Secretary’s decision to place specific items on the list, and that limited, “basis in fact” review of the Secretary’s decision does not implicate considerations giving rise to a political question. We disagree that the Secretary’s decision can be subjected to judicial review, or that the basis for his decision is material to the defense of an EAA violation, and reverse.

I

Arnold and Roña Mandel were indicted on July 17, 1987, and charged with one count of conspiracy and ten counts of illegally exporting controlled commodities without a license in violation of the Export Administration Act of 1979, 18 U.S.C. § 371 , 50 U.S.C.App. §…

concurring:

I concur in the result reached by the majority. I write separately because I believe the majority opinion cuts a path broader than necessary to decide this case.

We held in Spawr II that the Secretary’s decision to place a commodity on the Commodity Control List is not subject to judicial review. United States v. Spawr Optical Research, Inc., 864 F.2d at 1472, 1474. The discovery granted by the district judge in this case, therefore, was not appropriate. The Mandéis contend that the due process principles of United States v. Mendoza-Lopez, 481 U.S. at 828, 107 S.Ct. at 2148-50, and Estep v. United States, 327 U.S. at 114, 66 S.Ct. at 423-24, preclude our following Spawr II. That argument is unavailing. As the majority opinion states, we may reconsider our precedent only when an intervening Supreme Court decision undermines it. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984). Spawr II was decided after Mendoza-Lopez and Es-tep, and can only be overruled by an en banc panel. The majority opinion thus unnecessarily discusses the effect of Mendoza-Lopez and Estep on this case.

Further, because Spawr II holds, as a matter of statutory interpretation, that the…