United States District Court, E.D. New York
For Mark Henry, also known as Weida Zheng, also known as Scott Russel, also known as Bob Wilson, also known as Joanna Zhong, Defendant: Erich C. Ferrari, LEAD ATTORNEY, Margaret S. Ververis, Ferrari & Associates, P.C., PRO HAC VICE, Washington, DC.
For USA, Plaintiff: Aimee Hector, Michael Lockard, LEAD ATTORNEYS, Special Assistant United States Attorney, United States Attorney's Office, Southern District of New York, New York, NY.
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
On February 13, 2013, defendant Mark Henry was indicted on charges that he (1)
conspired to violate the Arms Export Control Act (" AECA" ), 22 U.S.C. § 2778(b)(2), (c) (" Count One" ); (2) violated the AECA by willfully and knowingly exporting, causing to be exported, and attempting to export, from the United States to Taiwan, ablative materials listed on the United States Munitions List (" USML" ), 22 C.F.R. § 121.1, without first obtaining an export license or other written authorization from the Department of State (" Count Two" );  and (3) violated the International Emergency Economic Powers Act (" IEEPA" ), 50 U.S.C. § 1705, by willfully and knowingly attempting to export, from the United States to China, microwave amplifiers on the Commerce Control List (" CCL" ), 15 C.F.R. § 774, without first obtaining an export license from the Department of Commerce (" Count Three" ). (Indictment.) Currently before the Court is the government's in limine motion, pursuant to Fed.R.Evid. 404(b), to admit evidence concerning Henry's 2006 and 2007 shipment of hazardous materials in violation of the Federal Aviation Administration's (" FAA" ) labeling requirements. The motion is granted, as provided herein.
I. The AECA Counts
In support of its motion, the government proffers the following with regard to the AECA Counts in the current indictment:
Henry operated an export business out of his Queens residence, using a number of company names, including DaHua Electronics Corporation and Bao An Corporation. In 2009, under the name Bao An Corporation, Henry purchased, from a Colorado company (the " CO Company" ), twelve drums of ablative materials for export to a company in Taiwan (the " Taiwanese Company" ). These ablative materials were on the USML and, therefore, required a license or other authorization from the State Department for export to Taiwan, among other places. The invoices from the CO Company warned that the product could not be sold outside of Canada and the United States without a license from the Department of Defense (" DOD" ). In e-mails, Henry informed the Taiwanese Company that export required a license from DOD. Henry had the CO Company deliver the drums of ablative material to a freight forwarding company in Queens without disclosing that this freight forwarder would ship the drums to Taiwan.
Before Henry purchased and exported the ablative materials, he exchanged emails with the Taiwanese Company about needing an export license. The Taiwanese Company initially asked whether Henry needed to apply for the export license. Approximately one month before Henry exported the first shipment, the Taiwanese Company instructed, " if you still do not receive the export license from government
early next week, please help ship them directly based on proper description to Taiwan directly, thank you!" The government alleges that by " proper description," Henry and the Taiwanese Company meant a description that ...