I have done some more digging into this set of doc`s.
Some of it is very interesting....
This IS a very long read, But if you are interested in this.......well you will read it
(sorry no cliff notes on this one LOL )
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On December 19, 1996, Ranger Taiwan was indicted by grand jury of this district for several crimes principally including the illegal importation of radio equipment into the United States of America in violation of 18 U.S.C. 8 545. On March 27, 1997, Ranger Taiwan was re-indicted by Superseding Indictment for said crimes. The Superseding Indictment charged that a company in Niles, Michigan, A-1 Telecom Inc., had imported illegal CB radios into the United States and that Ranger Taiwan, and other Defendants, participated in the importation and laundered funds as to the sale of the radios. In this case and in three closely-related cases, no less than 17 individuals and companies were indicted. The radios in question were "prohibited by law" under the importation statute, 18 U.S.C. 8 545, because of Federal Communications Commission ("FCC") regulations which require that CB radios be type accepted by the FCC. 47 C.F.R. 88 2.803 and 95.603. The radios in question were not type accepted by the FCC and would not have been type accepted by the FCC because they broadcast on frequencies other than those approved by the FCC for CB broadcast (between 26.965 and 27.405 megahertz). See 47 C.F.R. 88 95.625 and 95.655. In this regard, the radios were different from amateur radios. Under FCC regulations, amateur radios broadcast at frequencies different from the approved CB frequencies. 47 C.F.R. § 97.301. As such, the FCC does not required type-acceptance for amateur radios. 47 C.F.R. § 95.655(a). The FCC does, however, require operator licenses for amateur radio operators. 47 C.F.R. 88 97.5-97.9. This procedure differs from that for CB radios as to which no operator license is required. 47 C.F.R. 8 95.404.
Shortly before Trial of Ranger Taiwan and the other Defendants, on January 9, 1998, the Court determined after legal briefing that proof of the conspiracy and illegal importation charges against the Defendants required the United States of America to prove that the Defendants knew that the law prohibited the importation of the radios imported. The Court did so after determining that the imported product was an inherently useful, non-dangerous product whose prohibited importation constituted a malum prohibitum rather than malum in se offense. Thus, the Court permitted testimony of Defendants' experts to the effect that the pertinent regulations were not understood in the electronics industry as prohibiting the imported radios when marketed as amateur radios. Just after that decision, the Court determined Ranger Taiwan's request for early disclosure of Brady and Jencks Act (18 U.S.C.§ 3500) materials. Ranger Taiwan and other Defendants had moved the Court for early disclosure of these materials. (Dkt. No. 241.) The United States responded to the motion by promising disclosure of Brady and Jencks Act materials at least three days prior to trial. (Dkt. No. 275.) Based on this promise, no further relief was ordered. (Dkt. No. 285.)
Trial of the charges was commenced on January 13, 1998. The trial was hotly contested. The trial did not go as expected by the United States in that one of its chief witnesses, John Gouvian, the President of Ranger Communications Inc. ("Ranger U.S.A.") admitted during his testimony that he had knowingly lied to the United States about the contents of bank account records in order to obtain the United States' assistance in moving to quash a subpoena for the records. He did so to prevent the disclosure of the records to the Defendants on Trial and to prevent his cross-examination concerning the records. When disclosed during trial, the records showed that he held a joint account with a debtor of Ranger U.S.A. and was borrowing substantial sums of money from the debtor for his personal expenses, while crediting the debtor's account with Ranger U.S.A. It is hard to imagine more important information being withheld from a defendant before trial.
Following the disclosure of this information, after a jury had been empaneled, the United States offered and some Defendants accepted a plea agreement. Under the plea agreement, some of the Defendants agreed to plead guilty to certain charges and the charges against Ranger Taiwan and Jim Peng would be dismissed in their entirety upon the recommendation of the United States. The charges against Defendant Ranger Taiwan were, thus,dismissed with prejudice by this Court by Order of February 3, 1998 (Dkt. No. 305).
During the later sentencing of other Defendants, it was disclosed that the Ranger/A-1 Telecom indictments were nearly novel. As now indicated by the United States, prior to these related indictments, there have been only three federal prosecutions for importation of illegal CB radios--all stemming from two related cases in the Eastern District of New York. The three New York convictions resulted in probationary sentences and fines. (Dkt. No. 372 at 17.) The instant set of prosecutions has resulted in forfeitures of over one million dollars and many felony and misdemeanor convictions of defendants with no prior criminal records. It also resulted in financial hardship for the indicted companies and the loss of as many as 400 hundred jobs in the various Ranger companies. (Dkt. No. 364 at 11 .)
Early in these criminal proceedings, Michael Olson, attorney for Ranger Taiwan, made several Freedom of Information Act ("FOIA") requests of the FCC relating to documents, correspondence and e-mail discussions relating to certain FCC regulations prohibiting the importation of certain kinds of 10-meter radios. By letter of August 8, 1997, the FCC answered the FOIA requests by refusing to produce some of the requested documents on the ground that production would interfere with an on-going criminal investigation and prosecution such that the documents were exempt from FOIA, 5 U.S.C. § 552(b)(7). (Defendant's Exhibit A.) The FCC came to this conclusion based in part on the coordinated review of the documents by the Assistant United States Attorney responsible for the Ranger prosecutions. (Def.'s Ex: A at 3.) Michael Olson made other FOIA requests including one dated February 6, 1998. After the dismissal and resolution of the
charges against the other Defendants, the FCC wrote Olson by letter of March 30, 1998 to inform him that his February 6, 1998 request and prior requests could be answered and were fully answered by 617 pages of materials enclosed. (Def.'s Ex. B.)
Defendant has filed as exhibits a small percentage of the 617 pages of materials as evidence of withheld Brady materials. The materials filed include e-mail transmissions between FCC employees as to confusion about the 10-meter regulations and the need for public notices to clarify the regulations. Defendant asserts that these materials tend to prove its innocence in that it proves that there was legitimate confusion about the regulatory requirements such that it, like other members of the public, would not have realized that the radios imported were prohibited by law. The United States and the FCC engineers assert that these e-mails did not relate to the subject radios (which operated on the Citizens Band without FCC type-acceptance as required by 47 C.F.R. § 2.803 and 47 C.F.R. § 95.603), but to "modifiable" radios--i.e., those radios which do not operate on Citizens Band frequencies but can be modified to do so. While the FCC engineers may have so intended by their statements, their statements are also susceptible to the interpretation that they believed that the industry and the public required greater notice of illegality as to the "open radios" (radios operating on both amateur radio and CB frequencies) marketed by the Defendant, which radios were, according to Defendant, marketed as amateur radios. Indeed, were the statements not susceptible of this interpretation and were they unrelated to the prosecution, the FCC would have had no reason to withhold the documents as to the earlier FOIA request and then disclose them after dismissal!
Two of these documents are especially telling. In Defendant's Exhibit I, there is an e-mail .from Lawrence Brock (an FCC employee stationed in Dallas, Texas) to another FCC employee dated June 7, 1996. The document says in pertinent part:______________________
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Let me interrupt at this point, Because this is critical
These are INTERNAL E-Mails from FCC Employees
that show confusion about the rules as they apply to these Radios
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As you know, the PUBLIC NOTICE went out on "Export" transceivers on May 13-many thanks to Gary.
I think now is the time to publicize it and issue warning letters to known or suspected violators. Gary has already disseminated copies of the notice at a ham convention. In the future, if we can convince AUSAs that there is no doubt that the importers/marketers knew the "export" transceivers were illegal, they may be willing to take on these cases knowing that they may have to argue this point to a jury.
I've prepared a sample warning letter that we may want to send importers and wholesalers ....
Before we mail any warnings, I'll provide ***** (the AUSA handing the A-1 case and its offshoots) with the proposed list and final draft, and determine if he has any objections or concerns relating to what he's doing. The last paragraph to the sample warning letter was added as a "just-in-case" to avoid any future conflict with anything which may be in the works.
I am also appending a sample CITATION, but I'm not recommending it. I believe the referenced sections in a formal citation indicates that it is being issued because it is required (under our Rules) prior to us issuing any administrative forfeitures,.. .which may be argued, implies that they may be ignorant of the violations and should have been informed of the illegalities prior to any criminal charges. I don't believe a citation is required under our Rules for violations relating to activities for which an FCC authorization (including an equipment authorization) is required.
When the warning letters are issued, I hope Gary will be able to address questions concerning the Public Notice (especially as it relates to the Ranger and RCI models).
(Def.'s Ex. I.) This document is susceptible to the interpretation that FCC engineers at the time of the message believed that it was arguable whether regulatory violators who had imported open radios had knowingly violated the law.
Another telling document is Defendant's Exhibit L--an e-mail written from FCC employee Gary Hendrickson to Julius Knapp (another FCC employee) and apparently referencing the "Motion to Dismiss" filed by Defendants in this case. The e-mail reads in part as follows:
In your note on the transmittal slip, you made the comment that to your knowledge "none of the major brands can be modified to operate outside amateur bands--certainly not with the ease provided on the Ranger units."
Unfortunately, this isn't quite the case. Virtually all models of the major brands of "real" amateur equipment CAN be modified for out-of-band operation. This applies both to MF/HF and to VHF/UHF amateur equipment from Icom, Kenwood, Yaesu, etc. Usually, the mods require opening up the unit and removing a resistor or diode-on some, a switch which is hidden on an obscure P.C. board has to be flipped. The mods may not be quite as easy to accomplish as on the Ranger units, but we're just talking about a matter of difficulty.
The mod information is readily available in the amateur versions of the "radio mod" books. The manufacturers will tell an amateur how to do it if he provides them with a copy of his license. Many of the ham radio store's service departments will do the mods (usually upon showing of a license).
There is an exemption in the Rules which permits the use of non-type accepted equipment in the Amateur Radio Service, and for MARS and CAP use. For some strange reason, this exemption is found within the CB Rules (See 95.655(a)), rather than in Part 2! (If we're going to provide a "loophole" for manufacturers, let's be sure to place it right where they can easily find it!) ....
(Def.'s Ex. L.) This document is susceptible to the interpretation that FCC engineers believed at the time of this message that the radios imported by Ranger were not legally distinguishable from modifiable radios, which radios, arguably, were not prohibited by law at the time of the criminal conduct at issue. It would have, thus, provided the Defendant an argument both that the radios imported were not "prohibited by law" and that the regulations in place did not provide adequate notice to importers that the radios were so prohibited.
......
These materials were not produced to the Defendant by the-United States of America prior to March 30, 1998. Presuming receipt of these documents by mail took three days, see Fed. R. Crim. Proc. 45(e), the Defendant received these documents on April 2, 1998. After taking some time to examine these documents, Defendant's attorney signed his Motion for Attorney Fees on June 4, 1998 and filed the same with the Court on June 11, 1998. Defendant's Motion for Attorney Fees requests attorney fees and costs in the amount of $404,737.01.
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There is still more to come, I just had to give you guys a break at this point
73
Jeff
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Edited by: <A HREF=http://p067.ezboard.com/bworldwidecbradioclub.showUserPublicProfile?gid=audioshockwav>AudioShockwav</A> at: 3/22/05 4:56 pm
