Yi-Chi Shih, aka Yugi Shi, aka Yichi Shih v. United States

Petitioner, an electrical engineer and adjunct professor at UCLA, was prosecuted for failing to obtain a license before exporting models of experimental microwave monolithic integrated circuits (MMICs), a type of semiconductor, to fellow researchers in China. MMICs that are “rated for operation” at performance parameters specified in the export controls may require a license. But at trial a Licensing Officer from the Department of Commerce’s Bureau of Industry and Security (BIS)—the agency that administers the export controls—testified that a MMIC is not “rated for operation” unless postmanufacture testing confirms it will operate reliably at those specified parameters. On Dr. Shih’s Rule 29 motion, the district court gave deference to the Licensing Officer’s interpretation under Skidmore v. Swift & Co., 323 U.S. 134 (1944); and, because it was undisputed the MMICs had not undergone reliability testing before being exported, vacated Dr. Shih’s export control convictions. Without analyzing the district court’s application of Skidmore, a two-judge panel of the Ninth Circuit held that the district court “improperly relied on witness testimony” when interpreting the charged export controls—an opinion creating a blanket prohibition against giving Skidmore deference to trial testimony from agency witnesses about the meaning of regulations they administer. The question presented is whether district courts may, under Skidmore, give deference to an agency’s interpretation of its own technical regulations when offered by one of its representatives at trial in a criminal case.