Naum Morgovsky and Irina Morgovsky v. United States

The Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, is a criminal statute with severe penalties that, in the government’s own words, “delegates” to the President the power to “define the violations of [it].” App.47. Naum and Irina Morgovsky were indicted for conspiring to violate regulations promulgated under the AECA. They pled guilty to avoid decades in prison. On appeal, they raised both constitutional and non-constitutional challenges, which the Ninth Circuit rejected, concluding that:

1. Congress had set forth a sufficiently “intelligible principle” for the Executive to follow; and (2) both of the Morgovskys had waived other challenges to the statute. The questions presented are:

2. Whether the Executive had the authority to issue the regulations under which the Morgovskys were convicted; if so, whether those regulations and the AECA violate the separation of powers doctrine, and whether the “intelligible principle” test is the correct analysis to apply in answering this question.

3. Whether a failure to raise a challenge under Federal Rule of Criminal Procedure 12(b)(3) constitutes forfeiture, and is subject to plain error review, or waiver, and not subject to any review absent a showing of good cause. See United States v. Guerrero, 921 F.3d 895, 897 (9th Cir. 2019) (recognizing a split).

4. Whether despite Class v. United States, 138 S. Ct. 798, 805 (2018), a general appellate waiver can bar a challenge to the statute of conviction where that challenge implicates the court’s constitutional power to impose judgment.