Unpublished Disposition, 852 F.2d 573 (9th Cir. 1988)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 852 F.2d 573 (9th Cir. 1988)

No. 87-3088.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and CANBY, Circuit Judges and CHARLES A. LEGGE* , District Judge.


Johannes Nootenboom appeals his criminal convictions for conspiracy to export items on the United States Munitions List and for the attempt to export a classified document without the proper export license. We affirm.

Nootenboom first contends that the magistrate's failure to ask most of the defendant's proposed voir dire questions, and the nature of the questions that were asked, violated his sixth amendment right to an impartial jury. We disagree. First, the pretrial publicity in this case did not warrant extensive voir dire on the subject of the Iran-Contra affair. See Beck v. Washington, 369 U.S. 541, 557 (1962). Some of the questions proposed by Nootenboom went far afield, and would only have contributed to a confusion of the issues. Second, the magistrate's decision not to ask other questions suggested by the defendant was justified because the court's questions on military service, law enforcement, and security clearances provided ample opportunity for the court and counsel to discover any potential juror prejudice. Voir dire questioning is adequate even if the trial court does not ask defendant's proposed questions in the precise form requested, so long as the venire panel is questioned on topics relevant to the defense. See United States v. Toomey, 764 F.2d 678, 683 (9th Cir. 1985), cert. denied, 474 U.S. 1069 (1986). The voir dire proceedings in this case were not so unreasonable or devoid of constitutional purpose as to constitute an abuse of discretion. United States v. Clabaugh, 589 F.2d 1019, 1023 (9th Cir. 1979).

Nootenboom also contends that the district court erroneously failed to state its findings as to each challenged determination in the presentence report, pursuant to Fed. R. Crim. P. 32(c) (3) (D). Nootenboom claims that the presentence report contained inaccuracies with respect to his involvement in the sale of TOW missiles to Iran, his financial gain from arms sales, and his involvement in schemes to obtain end user certificates for Leopard II tank engines. This argument is meritless. The district court accepted Nootenboom's contention that the TOW missile transaction was contemplated but never consummated. In addition, the district court explicitly agreed to disregard information concerning both Nootenboom's financial gain from prior arms deals and his involvement in the Leopard II Tank scheme. Rule 32(c) (3) (D) does not require the district court to make specific findings or to grant a hearing concerning the controverted information in the presentence report when the district court makes clear that it is not taking the disputed matter into consideration in sentencing the defendant. See United States v. Edwards, 800 F.2d 878, 881 (9th Cir. 1986); United States v. Petitto, 767 F.2d 607, 611 (9th Cir. 1985).

Nootenboom next contends that the district court erred in failing to dismiss the case because the government did not prove that the classified torpedo manual underlying his indictment was part of the United States Munitions List. Nootenboom appears to argue that the authority that Congress gave the President, to designate defense articles that may be exported only under certain conditions, was redelegated to an extent not permitted by Congress. We find no merit in Nootenboom's argument. The President's power, conferred by 22 U.S.C. 2778 (1982), was delegated to the Secretary of State, with the concurrence of the Secretary of Defense, by Executive Order 11958, 42 Fed.Reg. 4311 (1977). Nootenboom concedes that this redelegation to the Secretary of State is authorized by 3 U.S.C. § 301 (1982). He argues, however, that the Secretary improperly redelegated the power to place items on the Munitions List to subordinates. We need not decide the propriety of such a redelegation, however, because the Munitions List was promulgated and published by the Secretary of State. See 49 Fed.Reg. 47,682 (1984) (latest revision). "The contents of the Federal Register shall be judicially noticed." 44 U.S.C. § 1507 (1982). The government's showing that the Munitions List was properly promulgated was clearly adequate.

Nootenboom next argues that, even if the Munitions List was properly promulgated, the Mark 48 torpedo manual underlying his indictment was not a lawfully designated item on the Munitions List. In his view, the manual is attempted to be brought within the Munitions List under Category XVII, comprised of "articles and technical data relating thereto which are classified in the interest of national security and which are not otherwise enumerated in the U.S. Munitions List." 22 C.F.R. Sec. 121.1 (1987). Nootenboom contends that, because any number of subordinate officers may classify documents, there has been an undue delegation of authority to place documents on the Munitions List.

Again, we need not address the validity of Nootenboom's contention because its premise is unsound. The Mark 48 torpedo manual does not depend upon its mere classification to place it on the Munitions List. It falls within Category XVIII: "Technical data ... relating to the other categories of the United States Munitions List." 22 C.F.R. Sec. 121.1 (1987). There is no question that the Mark 48 torpedo manual is technical data relating to the Mark 48 torpedo. There is also no question that the Mark 48 torpedo falls within Category IV(a) of the Munitions List. See 22 C.F.R. Sec. 121.1 (1987) (Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs and mines). Accordingly, the manual underlying Nootenboom's indictment and conviction was properly designated on the Munitions List by the promulgating authority, the Secretary of State.

Nootenboom finally argues that there was a variance between the indictment and the conspiracy proved at trial and that the district court consequently should have given a special unanimity instruction. We find no such variance. The indictment returned against Nootenboom alleged a conspiracy to export classified defense items without obtaining the appropriate export licenses. The evidence presented at trial demonstrated that Nootenboom had conspired with others to export classified torpedo manuals and radar tubes to foreign nations without the proper authorization. This case does not involve a discrepancy between the indictment and the evidence, or any other factor creating such a genuine possibility of jury confusion as to warrant a specific unanimity instruction. United States v. Frazin & Miller, 780 F.2d 1461, 1468 (9th Cir.), cert. denied, 107 S. Ct. 158 (1986).



The Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3