Full opinion text
MEMORANDUM DuBOIS, District Judge. TABLE OF CONTENTS I. INTRODUCTION.673 II. BACKGROUND.674 III. STANDARD OF REVIEW.676 IV. SUMMARY OF THE COURT’S MEMORANDUM OF AUGUST 8, 2002.677 A. TRIAL COUNSEL WAS OBJECTIVELY UNREASONABLE IN FAILING TO CALL AT TRIAL FIVE WITNESSES REQUESTED BY DEFENDANT WHO DEFENDANT ARGUED WOULD HAVE SUPPORTED HIS GOOD-FAITH BELIEF THAT HIS CONDUCT WAS LAWFUL.677 B. TRIAL COUNSEL’S FAILURE TO INVESTIGATE, INTERVIEW AND CALL AT TRIAL TWO EXPERT WITNESSES AND THREE FACT WITNESSES PREJUDICED DEFENDANT.678 V. DISCUSSION © OO © A. THE GOVERNMENT’S CHALLENGES TO THE QUALIFICATIONS OP HIGGINS AND YATES AND THE ADMISSIBILITY OF THE OPINIONS STATED IN THEIR AFFIDAVITS. © 00 © 1. The Government Waived Any Opportunity to Challenge Higgins’ and Yates’ Expert Qualifications and the Admissibility of Their Opinions. © 00 © 2. The Court’s Reliance on Expert Testimony Concerning Applicable Law. © CO CO (a.) Expert Testimony Concerning the Law Applicable to Importation of Defense Articles Is Admissible as it Relates to Defendant’s State of Mind. CO 00 © (b.) The Government’s Arguments Concerning Higgins’ and Yates’ Expert Qualifications and the Admissibility of Their Opinions Do Not Establish Clear Error or Manifest Injustice. © 00 © (1.) Expert Testimony under Daubert-Kumho Tire . © 00 © (2.) Higgins’ Qualifications and the Admissibility of His Proposed Testimony. © 00 © (i.) Higgins’ Qualifications. © 00 © (ii.) Admissibility of Higgins’ Expert Opinions. 00 © (3.) Yates’ Qualifications and the Admissibility of His Proposed Testimony.. oo © (i.) Yates’ Qualifications. oo © (ii.) Admissibility of Yates’ Expert Opinions. © © 3. The Government’s Remaining Objections. © b- (a.) Defendant Did Not Rely on Opinions. © 1 — (b.) Unavailability of Higgins at Trial. © 1 — 4. The ATF Opinion Letters Stating ATF Would Not Have Referred to Customs Service Practices in the Circumstances Presented. © © B. THE GOVERNMENT’S CHALLENGES TO KERNS, GALLAGHER AND GUERIN. CO © <x> 1. Kerns. CO © © (a.) Defendant Did Not Rely on Kerns. CO © © (b.) Defendant’s Possession of the Sikorsky Memorandum. CO © © (c.) Was the Sikorsky Memorandum Based on False Representations?. (d.) The Schmidt 302 and Zemetis 302 . 2. Gallagher. (a.) Value-Added Theory. (b.) Gallagher’s Proposed Testimony was Cumulative. 3. Guerin. (a.) Speculation Regarding Guerin’s Potential Testimony. (b.) Guerin’s Potentially Harmful Testimony. (c.) Guerin’s “Vague and Inadmissible Opinions”. (d.) Strategic Decision Not to Call Guerin. (e.) Guerin’s Credibility. (f.) Guerin’s Proposed Testimony Was Cumulative. VI. CONCLUSION.699 I. INTRODUCTION This is a habeas corpus action filed under 28 U.S.C. § 2255 by defendant, Thomas P. Jasin (“Jasin” or “defendant”), which arises out of defendant’s conspiracy conviction in a complex prosecution for violation of the United States arms embargo against South Africa during the 1980s. By Memorandum and Order dated August 8, 2002, the Court granted in part defendant’s ha-beas motion in part and vacated defendant’s conviction. Presently before the Court is the Government’s Motion for Reconsideration of the Court’s Order Granting the Defendant’s Motion Under 28 U.S.C. § 2255 (“motion for reconsideration”). For the reasons that follow, the government’s motion for reconsideration is denied. II. BACKGROUND The facts of this case are fully presented in several of the Court’s previously reported opinions. See, e.g., United States v. Jasin, Crim. A. No. 91-602-08, 1993 WL 259436, at *1-11 (E.D.Pa. July 7, 1993) (factual history); United States v. Jasin, 215 F.Supp.2d 552, 555-57 (E.D.Pa.2002) (post-conviction history). The following factual and procedural history is sufficient for the purpose of addressing the government’s motion for reconsideration. Relevant facts are restated where necessary throughout the discussion section of this Memorandum. On January 23, 2001, defendant filed his Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under 28 U.S.C. § 2255 (“ § 2255 motion”). In his § 2255 motion, defendant raised three arguments. The first and second arguments were based on claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — that trial counsel was ineffective in his failure to (1) investigate, interview and call potential witnesses, and (2) object to the government’s use at trial of defendant’s statements made during proffer sessions with government representatives. In his third argument, defendant asserted that pre- and post-trial delay denied defendant’s constitutional right to a speedy trial and due process of law. Defendant withdrew the third argument by letter to the Court dated August 14, 2001, but reserved the right to re-raise it should the Court grant defendant a new trial. On July 31, 2001, the Court conducted a telephone conference to discuss the need for an evidentiary hearing on the § 2255 motion. During the conference, the Court agreed with arguments by counsel that an evidentiary hearing was necessary on issues related to defendants’ second claim for relief presented in the § 2255 motion— the claim that trial counsel was ineffective in failing to object at trial of defendant’s statements made during proffer sessions with government representatives. Defense counsel also suggested that the witnesses trial counsel failed to interview or call at trial should testify at the hearing. The government took no position on that issue and the Court did not rule on it during the July 31, 2001 telephone conference. By Order dated August 2, 2001, the Court scheduled an evidentiary hearing and oral argument on defendant’s § 2255 motion for August 9, 2001. That same day, the Court by letter wrote to counsel to “clarify” the scope of the evidentiary hearing and oral argument. Specifically, the Court wrote that “I will expect a presentation of evidence on the issues we addressed in our telephone conference — the issue related to the use of evidence gathered during proffer sessions with Mr. Ja-sin and the related question of waiver by Mr. Jasin. If any of you disagree, I direct that you advise me in writing by return mail so that we can determine the scope of the evidentiary hearing in advance of August 9th.” (emphasis added). Defense counsel responded to the Court’s letter by letter to the Court dated August 3, 2001. In that letter, defense counsel argued that an evidentiary hearing was warranted on all three issues raised in the § 2255 motion — the failure to investigate, the proffer agreement and the due process and speedy trial act violations. With respect to the first issue, the failure to investigate, defense counsel identified several witnesses — William Gallagher, John Kerns, James Guerin, Robert Yates, Vernon Aeree, Stephen Higgins and Rex Davis — and stated that “... although there is no material dispute regarding the failure to investigate, there is a dispute regarding the impact of the witness’ testimony at trial. For reasons stated in the 2255 Motion, an evidentiary hearing would provide the Court an opportunity to hear the witnesses and to judge their importance.” Although some of those witnesses were not available to testify at the August 9, 2001 hearing, defense counsel asked the Court to proceed with the hearing, permit the testimony of the defense witnesses who were available to testify that day “... and make a ruling at that time as to what arrangements, if any, the Court will make to hear further testimony.” After receiving defense counsel’s letter of August 3, 2001, the Court conducted a telephone conference with counsel that same date to discuss the scope of the evidentiary hearing. During that conference, the Court stated that it did not deem it necessary or appropriate to hear testimony from the witnesses identified in defense counsel’s letter of August 3, 2001— witnesses who, according to defendant, should have been called at trial in support of his good-faith defense. The government agreed with the Court and the Court ruled that those witnesses would not be permitted to testify at the August 9, 2001 evidentiary hearing. At the August 9, 2001 evidentiary hearing on the § 2255 motion, the Court confirmed with counsel that the scope of the hearing would be limited to testimony on the issues related to the proffer agreement. Counsel for the government agreed with the Court that testimony on other issues was not necessary — “It’s our position that the Court has — I assume it’s the position also of both sides is that the Court has in the pleadings on the other issues the information that you need to make a decision.” August 9, 2001, Evidentiary Hearing and Oral Argument Transcript (“Hr’g T.”) at 18-19 (emphasis added). The parties then presented evidence on the question whether counsel’s failure to object to the government’s use at trial of defendant’s statements made and documents produced during proffer sessions constituted constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At the conclusion of the presentation of that evidence, the Court heard argument. By Memorandum and Order dated August 8, 2002, the Court granted in part and denied in part defendant’s § 2255 motion. The Court granted defendant’s motion on the first claim for relief — that trial counsel was objectively unreasonable in his failure to investigate, interview and call at trial witnesses with evidence in support of defendant’s good-faith defense as requested by defendant and that this failure prejudiced defendant, and vacated defendant’s conviction. The Court denied defendant’s motion on the second claim for relief — that his trial counsel was ineffective for failing to object to the government’s use at trial of defendant’s statements made and documents produced during proffer sessions. By Order dated August 15, 2002, the Court released defendant from custody and placed him on bail. That same day, the government advised the Court that it intended to seek reconsideration of the Court’s decision to grant in part the § 2255 motion. The government thereafter filed its motion for reconsideration. III. STANDARD OF REVIEW The government does not cite the procedural rule on which it relies in seeking reconsideration of the Court’s Memorandum and Order dated August 8, 2002; the Court assumes, however, that the government is proceeding under Federal Rule of Civil Procedure 59(e). Under that Rule, a district court may alter or amend a judgment only if the party seeking reconsideration can demonstrate one of the following grounds: “... (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court ... [issued its previous decision]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou Ann v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir.1995)). The government does not point to any intervening change in controlling law since the Court issued its August 8, 2002 Memorandum, and the Court concludes that there has been no such change. Thus, the first ground for a motion for reconsideration — an intervening change in controlling law- — is inapplicable. The government relies in its motion on four items of evidence that were not in the record when the Court ruled on defendant’s § 2255 motion, thus implicating the newly discovered evidence prong of the three grounds for granting a motion for reconsideration. Specifically, the government attaches to its motion copies of two opinion letters drafted by Bureau of Alcohol, Tobacco and Firearms (“ATF”) officials — a letter dated September 21, 1995 and a letter dated March 30,1995, and two FBI witness statements, Form 302 (“302”), from Sikorsky employees Steve Schmidt and Joseph Zemetis. Gov’t Mot. Ex. A, B, C. These exhibits are new evidence but the government does not contend that the evidence was newly discovered — not previously available. “[W]hen evidence is not newly discovered, a party may not submit that evidence in support of a motion to reconsider.... ” Pavlik v. Lane Ltd./Tobacco Exp. Int’l, 135 F.3d 876, 882 n. 2 (3d Cir.1998) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985)). Thus, the Court will not consider the new evidence presented by the government in deciding the motion. The government states that “[t]he third circumstance applies here”— referring to the need to correct a clear error of law or prevent a manifest injustice. Gov’t Mot. at 8 n. 4. “ ‘[A]ny litigant considering bringing a motion to reconsider based upon ... [clear error and manifest injustice] should evaluate whether what may seem to be a clear error of law is in fact simply a disagreement between the Court and the litigant.’ ” Reich v. Compton, 834 F.Supp. 753, 755 (E.D.Pa.1993) (citing Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D.Pa.1992)); see also Smith v. City of Chester, 155 F.R.D. 95, 97 (E.D.Pa.1994) (same) (citing Reich, 834 F.Supp. at 755). A finding of clear error requires a “ ... definite and firm conviction that a mistake has been committed.’ ” Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In order to show clear error or manifest injustice, the government must base its motion on arguments that were previously raised but were overlooked by the Court — “[pjarties are not free to relitigate issues that the Court has already decided.” Smith, 155 F.R.D. at 97; see also Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D.Pa.1993); Rottmund v. Continental Assurance Co., 813 F.Supp. 1104, 1107 (E.D.Pa.1992). At the same time, “[mjotions for reconsideration ... should not be used ‘to put forward additional arguments which [the movant, in this case the government,] could have made but neglected to make before judgment.’ ” Reich, 834 F.Supp. at 755. IY. SUMMARY OF THE COURT’S MEMORANDUM OF AUGUST 8, 2002 Before analyzing the government’s motion for reconsideration, the Court summarizes the grounds for granting defendant’s § 2255 motion in part as set forth in the August 8, 2002 Memorandum. To establish a claim for ineffective assistance of counsel at trial under Strickland, a convicted defendant must demonstrate that his counsel’s performance (1) “... fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052, and (2) that counsel’s deficient performance prejudiced the defense. Id. at 693, 104 S.Ct. 2052. In the August 8, 2002 Memorandum, the Court granted defendant’s § 2255 motion on defendant’s first claim for relief — that trial counsel was objectively unreasonable under the framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) in his failure to investigate, interview and call at trial witnesses requested by defendant who defendant argued would have supported his good-faith defense and that this failure prejudiced defendant. The Court limits its exposition in this Memorandum to the issues of whether (1) trial counsel was objectively unreasonable in his failure to investigate, interview and call at trial witnesses with evidence in support of defendant’s good-faith defense as requested by defendant and (2) trial counsel’s failure to investigate, interview and call at trial two expert witnesses and three fact witnesses prejudiced defendant’s good-faith defense. A. TRIAL COUNSEL WAS OBJECTIVELY UNREASONABLE IN FAILING TO CALL AT TRIAL FIVE WITNESSES REQUESTED BY DEFENDANT WHO DEFENDANT ARGUED WOULD HAVE SUPPORTED HIS GOOD-FAITH BELIEF THAT HIS CONDUCT WAS LAWFUL In determining that trial counsel’s failure to investigate, interview and call at trial witnesses with evidence in support of defendant’s good-faith defense fell below an objective standard of reasonableness under the first prong of Strickland, the Court, in the Memorandum, first summarized the relevant evidence presented at trial. At trial, the government sought to prove, inter alia, that defendant was involved in three different prongs of a conspiracy to violate the Arms Export Control Act (“AECA”), 22 U.S.C. §§ 2778(b)(2) and 2778(c) and its implementing regulations, 22 C.F.R. § 121 et seq. and the Comprehensive Anti-Apartheid Act of 1986 (“CAAA”), 22 U.S.C. § 5001 et seq. The three prongs of the conspiracy were “... (1) the illegal importing of surrogate missile components from South Africa to the United States, (2) the illegal exporting of United States missile components to South Africa for integration into South African missiles, and (3) the illegal transfer to South Africa of technical data derived from United States-based testing of missiles originally produced in South Africa.” Ja-sin, 215 F.Supp.2d at 560. Defendant asserted a good faith defense to all three prongs of the charged conspiracy. He sought to prove — and he argued to the jury — that he held an honest belief that he was acting in compliance with the law. It was defendant’s position that he lacked the willful state of mind required to establish a violation of the relevant law. The Court charged the jury on the law applicable to this defense, explaining that defendant’s good faith was a “ ‘... complete defense ... because good faith on the part of the defendant is simply inconsistent with the intent to commit the crime charged.’” Id. (quoting Trial Transcript (“T.”), Dec. 4, 1992, at 100; App. at 3496). The Court then addressed defendant’s claim that trial counsel was ineffective because he “... inexplicably failed to interview and call a number of fact witnesses defendant told him would provide testimony helpful to his defense, and he likewise failed to seek out expert witnesses requested by defendant.” Id. at 558. The Court noted that the govérnment presented no contrary evidence — the government produced no affidavit from trial counsel explaining his strategic decision-making process and “... expressly declined to call trial counsel at the August 9, 2001, eviden-tiary hearing.... ” Id. at 564. Based on the uncontested evidence, the Court concluded “... that trial counsel conducted no pre-trial investigation and interviewed neither the witnesses defendant asked him to interview nor the witnesses he actually presented.” Id. at 566. The Court then applied United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989), which held that “ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made.” Based on the affidavits submitted by defendant in which the proposed testimony of each witness was summarized, the Court ruled that Gray compelled the conclusion that trial counsel’s failure to contact five witnesses defendant said would support his good-faith belief defense constituted a clear instance of ineffectiveness and satisfied the first prong of Strickland with respect to that claim. Jasin, 215 F.Supp.2d at 566. B. TRIAL COUNSEL’S FAILURE TO INVESTIGATE, INTERVIEW AND CALL AT TRIAL TWO EXPERT WITNESSES AND THREE PACT WITNESSES PREJUDICED DEFENDANT In the Memorandum, the Court next examined the evidence that defendant presented on the second prong of Strickland — that is, whether trial counsel’s failure to investigate, interview and call at trial two expert witnesses and three fact witnesses prejudiced defendant. The Court concluded that the evidence supported defendant’s claim of prejudice. That conclusion was limited to two prongs of the conspiracy: the imports and exports prongs. The imports prong of the conspiracy involved charges that defendant and defendant’s employer, International Signal and Control Corporation (“ISC”), illegally imported into the United States South African surrogate missiles, or missile dummies, as part of ISC’s Striker missile program. A central issue with respect to this prong of the conspiracy was the classification of the missile dummies’ country of origin. Under the regulations governing importation of defense articles, anyone seeking to import defense articles was required to complete an ATF application form which, inter alia, asked the applicant to identify the country of origin. At the relevant time period, a United States embargo prohibited the importation of defense articles that were classified as originating in South Africa. At trial, the government adduced evidence that the missile dummies ISC imported were South African in origin. Defendant testified at trial that he had a good-faith belief that, under the governing ATF regulations, the imported missile dummies were properly classified as Italian in origin. That statement was based on evidence that the South African missile manufacturer shipped incomplete missile dummies to Italy, where an Italian company, Elmer Industrie per lo Spazio e le Comunicazoni S.p.A. (“Elmer”), added components in assembling the missile dummies that were ultimately imported into the United States. Because Elmer added components, and, thus, financial value to the missile dummies, defendant argued that under a “value added” theory, the proper country of origin for the missile dummies was Italy. With respect to the imports prong of the conspiracy, the Court found prejudice in defense counsel’s failure to follow up on defendant’s request to locate and present at trial an ATF expert and a United States government military missile expert. That ruling was based on the affidavits of Stephen Higgins, a former director of ATF, and Robert Yates, a military missile expert. The Court concluded those affidavits established that, had trial counsel investigated such experts or had he found expert witnesses like Higgins and Yates, those witnesses would have presented evidence which supported the reasonableness of defendant’s good-faith belief that the importation of Striker missile dummies was lawful under a value-added theory — ■ that because of the value added to the missile dummies in Italy, it was proper to identify Italy as the country of origin. The Court also found prejudice in trial counsel’s failure to interview John Kerns and William Gallagher, representatives of the Sikorsky Aircraft Division of United Technologies Corporation (“Sikorsky”) who worked with defendant. On the basis of their affidavits, the Court ruled that Kerns and Gallagher would have provided evidence supportive of defendant’s subjective good-faith belief. The exports prong of the conspiracy involved charges that defendant was part of the ISC conspiracy to illegally export components, including batteries and xenon bulbs, to South Africa for integration into South African missile surrogates. Defendant’s defense with respect to this prong of the conspiracy was that his superior at ISC, James Guerin, the founder and majority shareholder of ISC and the leader of the ISC conspiracy, told defendant that ISC had “Washington approval” for the export program. With respect to the exports prong of the conspiracy, the Court found prejudice in trial counsel’s failure to interview Guerin and call him as a witness at trial. After analyzing the record evidence, the Court concluded that Guerin would have offered evidence on defendant’s good-faith belief that ISC was exporting missile components with government approval. The Court further concluded that Guerin’s testimony would have called into doubt defendant’s involvement in any illegal activity. Y. DISCUSSION In its motion for reconsideration, the government accepts “... as accurate ... the Court’s conclusion that trial counsel was ineffective in failing to locate or present ...” the witnesses discussed in the Court’s Memorandum. Gov’t Mot. at 1. Thus, there is no need for the Court to address its ruling that trial counsel was ineffective under United States v. Gray. The government, however, takes issue with the Court’s ruling that trial counsel’s failure to investigate, interview and call two expert witnesses — Higgins and Yates — and three fact witnesses — Kerns, Gallagher and Guerin — prejudiced defendant. The government argues that the Court committed clear error in ruling that four witnesses — Higgins, Yates, Kerns and Gallagher — -would have been allowed to testify at trial. The government also contends that the Court committed clear error in “... supplying] speculation as to what ...” Guerin’s testimony would be “... without any proffer from the defense.” Gov’t Mot. at 2. The Court will consider these arguments seriatim. A. THE GOVERNMENT’S CHALLENGES TO THE QUALIFICATIONS OF HIGGINS AND YATES AND THE ADMISSIBILITY OF THE OPINIONS STATED IN THEIR AFFIDAVITS 1. The Government Waived Any Opportunity to Challenge Higgins’ and Yates’ Expert Qualifications and the Admissibility of Their Opinions The government argues that the Court committed clear error without first having made threshold determinations that Higgins and Yates were qualified as expert witnesses whose testimony would be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). It is the government’s position that “... the Court must conduct a Dau-bert inquiry, and in that inquiry the government will show ...” that Higgins and Yates are not qualified experts and that their opinions hold no support in the relevant community. The government also contends that these objections were preserved — it argues that it “... repeatedly stated its view that the proffered witness testimony was inadmissible on various grounds and that therefore prejudice cannot be established.” Gov’t Mot. at 6-7 (footnote omitted). In making these arguments, the government concedes, as it must, that it never requested a Daubert hearing or objected to the proffered expert testimony under Daubert. Gov’t Mot. at 7 (“The government may not have cited Daubert by name....”). The Court rejects the government’s argument that the Court had an obligation, sua sponte, to conduct a Daubert inquiry. “[T]he trial judge is assigned the task of insuring that an expert’s testimony rests on a reliable foundation and is relevant, but Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party.” Macsenti v. Becker, 237 F.3d 1223, 1232 (10th Cir.2001); see also United States v. Evans, 272 F.3d 1069, 1094 (8th Cir.2001) (“There is no requirement that the District Court always hold a Daubert hearing prior to qualifying an expert witness under Federal Rule of Evidence 702.... ”). On that issue, the First Circuit, in Hoult v. Hoult, 57 F.3d 1 (1st Cir.1995), stated “[w]e do not think, however, that district courts are required, sua sponte, to make explicit on-the-record rulings regarding the admissibility of expert testimony.” Id. at 4-5. The Court agrees with the Hoult court — absent a request from the parties, a district court has no obligation to make explicit on-the-record rulings concerning Daubert issues. The Court also rejects the government’s belated request for a Daubert inquiry because the government waived those challenges as well as an opportunity to request a hearing on those matters. A review of the record discloses that not only did the government fail to request such a hearing before the Court ruled on defendant’s § 2255 motion, it also agreed that it did not need an opportunity to examine the witnesses it now seeks to challenge. As explained in more detail in § I of this Memorandum, supra, after defendant’s § 2255 motion was fully briefed, the Court convened a telephone conference with defense and government counsel on July 31, 2001 to discuss the need for an evidentiary hearing and the scope of that hearing. Specifically, at the July 31, 2001 telephone conference, the Court agreed with the arguments of defense counsel and the government that an evidentiary hearing was necessary only on issues related to defendants’ second claim for relief — the claim that trial counsel was ineffective in failing to object at trial to the use during cross examination of defendant’s statements made during proffer sessions with government representatives. After the Court scheduled an evidentia-ry hearing and oral argument by Order dated August 2, 2001, defense counsel wrote to the Court by letter dated August 3, 2001, arguing that the scope of the hearing should be expanded to include testimony from witnesses presented on defendant’s first claim for relief — the claim that trial counsel was ineffective in failing to investigate, interview and call at trial witnesses who defendant argued would have supported his good-faith defense. The letter identified the witnesses, summarized their proposed testimony and named those witnesses who would be available to testify at the August 9, 2001 evidentiary hearing and those who would not be available to testify. That same day, after receiving that letter, the Court convened a telephone conference with defense counsel and government counsel. At the conference, the Court stated that it did not deem it necessary or appropriate to hear testimony from witnesses who, according to defendant, would have supported his good-faith belief that his conduct was lawful. The government agreed with the Court’s determination. Thus, the Court ruled that such testimony would not be permitted at the August 9, 2001 evidentiary hearing. Then, at the August 9, 2001 evidentiary hearing, the Court confirmed its understanding of the scope of the hearing with defense and government counsel — that live testimony was not necessary on the value-added witnesses. That understanding is evidenced by the following colloquy between the Court and counsel: THE COURT: There’s one other issue that occurred to me when I started reviewing all the papers after we spoke and that is, customarily in a case like this where witnesses are not called, although we do not hear from the witnesses, we rely on the affidavits or the submissions of the witnesses, unless they’re contested, and the Government in this case when we spoke about scheduling this hearing reported that they were not contesting what it was the defense said the witnesses identified in the motion papers would say if they had been called. MR. GOLDMAN: We were talking about the value-added witnesses at that point, your Honor. THE COURT: I think we were talking about the need to call any witnesses, Mr. Haddad mentioned some by name and I didn’t immediately associate them with value-added or any other issue.... Did I mislead you, Mr. Goldman and Mr. Haddad, into thinking— MR. GOLDMAN [for the government]: Oh, not at all. THE COURT: — that you could not call [trial counsel]? MR. GOLDMAN: Absolutely not, your Honor, we both know we could call [trial counsel]. I — frankly, I guess [trial counsel] is one of those witnesses that neither side wants to call. And the Government’s position is that [trial counsel] explained his trial strategy at the suppression motion and, that being, I raised a legal issue, I consulted with Mr. Martin, prior counsel, on the issue, Mr. Martin has confirmed the Government’s position in its pleadings and, based upon that, I’m withdrawing the motion to suppress the proffer statements. THE COURT: All right. Now, that’s limited to the motion to suppress and what I’m talking about transcends that, goes beyond that, what I’m talking about is calling— MR. GOLDMAN: All the issues? THE COURT: Yes. Now, did I mislead you in that regard? MR. GOLDMAN: Not at all, your Honor. It’s our position that the Court has — I assume it’s the position also of both sides is that the Court has in the pleadings on the other issues the information that you need to make a decision. THE COURT: All right. Hr’g T. at 13-19 (emphasis added). In the August 8, 2002 Memorandum, this Court concluded that “[t]his colloquy makes it abundantly clear that, on the question of counsel’s trial strategy, the government is relying solely on the written submissions.” Jasin, 215 F.Supp.2d at 565. This colloquy also makes it clear that the government consciously chose not to challenge on Daubert grounds the admissibility of the testimony of the witnesses whose affidavits were presented in support of defendant’s first claim for relief. The government’s position was reaffirmed in another colloquy that took place later in the hearing: MR. HADDAD: ... Now, Mr. Yates was one of the witnesses who was prepared, as your Honor knows, to fly here and be here today if your Honor wanted testimony on this. The Government has said it doesn’t think it needs testimony here. In a footnote they have said that this is a false affidavit or, you know, other things, but we were prepared to present him. We think given the posture of this— THE COURT: The Government has taken the position that they’re not challenging what is set forth in those affidavits. MR. HADDAD: Exactly. So I think that you have to disregard, you know, what they’ve sort of thrown away in the footnotes of their brief and look at this affidavit for what it is.... Id. at 290 (emphasis added). That exchange took place without any objection from the government and confirms that the defense offered to produce Yates and other witnesses at the hearing but that the government said it was not necessary to do so. In addition to the government’s failure to object to defense counsel’s statements at the August 9, 2001 hearing, the government stated at the conclusion of argument that it was prepared to “... rely unless the Court has questions on our reply memorandum and our surreply memorandum.” Id. at 234 (emphasis added). Those documents say nothing about Higgins’ or Yates’ qualifications or any other Daubert issues. Thus, the Court concludes the government waived all such objections. 2. The Court’s Reliance on Expert Testimony Concerning Applicable Law Did Not Constitute Clear Error or Manifest Injustice Notwithstanding the Court’s ruling on waiver, the Court will address the government’s belated challenges to its reliance on the proffered expert testimony in determining whether reconsideration is required to correct a clear error of law or prevent manifest injustice. (a.) Expert Testimony Concerning the Law Applicable to Importation of Defense Articles Is Admissible as it Relates to Defendant’s State of Mind As a threshold matter, the government argues that “... the testimony of an expert [is not] relevant to establish that a defendant’s state of mind was reasonable because this so-called expert witness had a similar belief. Testimony that addresses the reasonableness of a defendant’s belief concerning a regulation calls for a legal conclusion. As such, it is an inappropriate matter for expert testimony.” Gov’t Mot. at 23. In the August 8, 2002 Memorandum, the Court ruled that “... notwithstanding the government’s argument that Higgins’ affidavit is incorrect as a matter of law, Higgins’ testimony on this issue would have been admissible at trial.” Jasin, 215 F.Supp.2d at 570. That ruling was based on the Court’s conclusion that “Higgins’ affidavit, particularly in its reference to the absence of ATF rules on country of origin, shows that reasonable professionals experienced with ATF regulations could disagree about the governing law.” Id. Use of expert evidence in that manner was sanctioned, the Court noted, by the Fifth Circuit’s ruling in United States v. Cavin, 39 F.3d 1299 (5th Cir.1994). In Cavin, the court reversed a conviction of a lawyer for participating in fraudulent securities transactions of a client on the ground that the trial court improperly excluded expert testimony as to the law governing the transactions. The Court noted that “[t]he import of Cavin in this case is that an expert’s testimony concerning the state of the law as to importation of defense articles is admissible as it relates to the defendant’s ‘understanding and resulting state of mind.’ ” Jasin, 215 F.Supp.2d at 570 (citing Cavin, 39 F.3d at 1309). The Court observed in the August 8, 2002 Memorandum that the government did not challenge Cavin in its several opportunities to brief the issue. Id. at 570 n. 16. Nevertheless, the Court analyzed both Cavin and the decision on which the Cavin court relied—United States v. Garber, 607 F.2d 92 (5th Cir.1979) (en banc). Garber reversed a tax evasion conviction because, in the court’s judgment, the trial court improperly excluded expert testimony on the question of whether income derived form the sale of a taxpayer’s blood was taxable. After noting that a number of courts had criticized the Fifth Circuit’s ruling in Gar-ber., the Court stated in the August 8, 2002 Memorandum that “[o]ne of the essential problems with Garber ... is that the analysis would permit ‘juries to find that uncertainty in the law negates willfulness whether or not the defendants are actually confused about the extent of their tax liability.’ ” Id. (citing Ingredient Tech. Corp., 698 F.2d at 97). The Court agreed with that criticism of Garber but noted that “... the Cavin decision addressed the problem by admitting expert testimony ‘only as it relates to [the defendant’s] understanding and resulting state of mind.’ ” Id. (citing Cavin, 39 F.3d at 1309). In its belated challenge to the Court’s reliance on Cavin, the government cites three cases, United States v. Scholl, 166 F.3d 964 (9th Cir.1999), United States v. Hook, 195 F.3d 299 (7th Cir.1999) and United States v. Herzog, 632 F.2d 469 (5th Cir.1980). Those cases are inapposite. In Scholl, the Ninth Circuit affirmed a conviction of a compulsive gambler for filing false tax returns and structuring currency transactions. In affirming that conviction, the Ninth Circuit held that the district court properly excluded expert testimony that “... compulsive gamblers do not want to keep records because that would force them to confront the reality of [their] losses .... ” Scholl, 166 F.3d at 970. In so ruling the Ninth Circuit emphasized the fact that the expert acknowledged there was no support in the literature for his opinion that pathological gamblers cannot truthfully report gambling income. In Hook, the defendant in a prosecution for, inter alia, theft from an employee benefit plan under ERISA, appealed his conviction on the ground that the district court improperly excluded expert testimony that the employee benefit plan at issue “... was no longer an ERISA plan since the employees were no longer employees within the meaning of ERISA ...” as a result of the closure of a manufacturing plant. That testimony was offered in support of the defendant’s argument that the plan was not subject to ERISA. In affirming defendant’s conviction on that count, the court ruled that “... the district court correctly ruled that this opinion was inaccurate as a matter of law.” Hook, 195 F.3d at 309. In Herzog, the defendant in a tax prosecution sought at trial to introduce expert testimony in support of his defense that he did not act wilfully because he thought, albeit erroneously, that his wages were exempt from taxation. Specifically, defendant’s expert sought to testify that the tax laws themselves were complex and that “... even law students, law professors, and attorneys find the subject very difficult.” Herzog, 632 F.2d at 473 (citation omitted). The Fifth Circuit held that the district court did not err in excluding the testimony because the expert opinion was not relevant to the willfulness issue — the opinion “... could not shed any light on whether Herzog had been confused by any such complexity at the time ...” he committed the criminal conduct. Id. (emphasis in original). This case is different from those relied on by the government. The Higgins affidavit does not offer an opinion regarding the reasonableness of defendant’s beliefs. Nor does it offer an opinion that the law governing the import of defense articles is confusing or complex. Rather, Higgins’ proposed testimony would have supported the reasonableness of defendant’s good faith belief that the importation of Striker missile dummies was lawful under a value-added theory. Such expert testimony would have been admissible as it relates to defendant’s “... understanding and resulting state of mind.” Cavin, 39 F.3d at 1309. Separate and apart from Cavin and similar cases, the Court ruled in the August 8, 2002 Memorandum that it “... would have admitted testimony of the sort presented in Higgins’ affidavit in rebuttal because the government presented testimony on the same issue through its own expert witness, Pearl Baylor, an import specialist with the ATF.” Id. at 571. Baylor testified at trial that an application for the importation of arms would have been denied if it listed the country of origin as South Africa. Id. (citing T., Nov. 13, 1992, at 19; App. at 845). According to Baylor, if the items in the application were transferred to a country where value was added, ATF would look to the “originating point” to determine the item’s country of origin. Id. (citing T., Nov. 13, 1992, at 20; App. at 846). The Court noted that “[d]efendant certainly would have been entitled to rebut that testimony by presenting an expert witness prepared to testify to the contrary.” Id. “[BJecause of counsel’s ineffectiveness, the jury never heard Higgins’ testimony or any other defense testimony from the ATF' — to defendant’s prejudice.” Id. Thus, the Court rejects the government’s argument relating to the admissibility of expert opinions on the law applicable to importation of defense articles. Reconsideration of the ruling that such testimony is admissible on the issue of defendant’s state of mind is not required to correct a clear error of law or prevent manifest injustice. (b.) The Government’s Arguments Concerning Higgins’ and Yates’ Expert Qualifications and the Admissibility of Their Opinions Do Not Establish Clear Error or Manifest Injustice The main thrust of the § 2255 Motion is that the expert testimony is admissible on the issue of defendant’s state of mind and this Court so ruled in its Memorandum and Order dated August 8, 2002. However, the Court, in reviewing the record in connection with the motion for reconsideration, concludes that the expert testimony is admissible on another ground as well— the question whether the value added resulted in a substantial transformation of the missile dummies sufficient to make Italy the country of origin. The Court will next address the government’s arguments concerning Higgins’ and Yates’ qualifications as experts and the admissibility of their opinions on both issues. (1.) Expert Testimony under Daubert-Kumho Tire Federal Rule of Evidence 702 provides as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Under Rule 702, when “[fjaced with a proffer of expert scientific testimony ... the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (footnotes omitted). It is well settled that the gatek-eeping role established in Daubert under Rule 702 is not limited to scientific testimony — the Daubert approach applies to all cases where the “... testimony reflects scientific, technical, or other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This approach helps to ensure the reliability of expert testimony, which “... can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). Under Daubert, the Court must engage in a two-step inquiry. “First of all, the proffered ‘expert’ must be qualified to express an expert opinion.... Secondly, the proffered expert opinion must be reliable.” In re TMI Litig., 193 F.3d 613, 663 (3d Cir.1999). With respect to this inquiry, a number of criteria to guide the courts in making reliability determinations have been identified, including: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to he reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir.2000) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3d Cir.1994)). This list is not exhaustive — the inquiry under Daubert should remain a flexible one. See, e.g., Elcock, 233 F.3d at 746 (noting that “Kumho Tire makes clear that this list is non-exclusive and that each factor need not be applied in every case”). As a general rule, the party offering the expert testimony has the burden of establishing its admissibility by a preponderance of the evidence. See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir.1999). Based on the following analysis, the Court concludes there is sufficient evidence in the record to meet that standard with respect to Higgins and Yates. (2.) Higgins’ Qualifications and the Admissibilitg of His Proposed Testimony (i.) Higgins’ Qualifications The government argues that Higgins is not qualified to opine on the law governing the importing of defense articles. Gov’t Mot. at 8, 10. The Court rejects that argument. An expert witness may be qualified to testify on the basis of “... knowledge, skill, experience, training or education. Any one of them is alone sufficient.” Dychalo v. Copperloy Corp., 78 F.R.D. 146, 149 (E.D.Pa.), aff'd, 588 F.2d 820 (3d Cir.1978). Higgins states in his affidavit that he “... is the former Director of the Bureau of Alcohol, Tobacco, and Firearms, serving in that position from 1982 until retirement in 1993, after approximately 32 1/2 years in ATF.” Aff. of Stephen E. Higgins, Def.’s Ex. 2 to § 2255 Motion (“Higgins Aff.”) ¶1. “As Director of ATF, I was responsible among other duties for the issuance of permits and licenses covering the importation of firearms, ammunition, defense articles, and similar items....” Id. ¶ 2. It is the position of the government that Higgins is unqualified to opine on the law governing the import of defense articles because he did not deal with “... day-today determinations of the lawfulness concerning the import of defense articles.” Gov’t Mot. at 16 n. 9. The Court disagrees. The fact that Higgins was not involved in the day-to-day determinations of ATF presents a credibility issue that would have been for the jury to resolve. In cases involving specialized areas of criminal law, such as illegal drugs, gangs, arson prosecutions, money laundering, organized crime and forgery, law enforcement officers are often qualified as experts based solely on their general experience. See, e.g., United States v. Watson, 260 F.3d 301, 307-08 (3d Cir.2001) (drugs); United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (gangs); United States v. Marler, 614 F.2d 47, 49 (5th Cir.1980); United States v. Majors, 196 F.3d 1206 (11th Cir.1999) (money laundering); United States v. Locascio, 6 F.3d 924, 937 (2d Cir.1993) (organized crime); United States v. Chappell, 6 F.3d 1095, 1100 (5th Cir.1993) (forgery). Based on this authority, the Court determines that a former director of ATF with 32 1/2 years of experience in that agency, with eleven years at the agency’s helm, would be qualified to testify as an expert concerning ATF regulations and practice applicable to the importation of defense articles. (ii.) Admissibility of Higgins’ Expert Opinions Having determined that Higgins would qualify as an expert on ATF rules and regulations concerning the classification of country of origin of armaments, the Court next turns to the government’s challenges to the admissibility of his opinions, specifically the government’s arguments that Higgins’ opinions are legally incorrect or inapplicable in that they conflict with the Court’s prior ruling that the value-added theory was not the law of the case. Gov’t Mot. at 16-18. Higgins’ affidavit states that the ATF would have considered the value added concept in the same manner as set forth in the affidavit of Vernon Aeree, who had been Commissioner of Customs for five years. Specifically, Higgins says “... where there is a question with respect to the proper classification or categorization of items to be imported ... ATF would look to U.S. Customs for guidance when the terms in question are not specifically defined in ATF laws or regulations.” Higgins Aff. ¶ 6. The practice of the Customs Service is described in Acree’s affidavit which Higgins reviewed in connection with submission of his affidavit. Specifically, Aeree states that “... where multiple countries have provided components for an article that is to be imported into the United States, if the last country of export prior to importation into the United States has ‘substantially transformed’ the article in question, then that country and the manufacturer within that country are properly designated on ATF Form 6(a) for Customs purposes.” Aeree Aff. ¶ 5. Continuing, Aeree says “... the correct manufacturer and country of origin ... [for purposes of ATF Form 6(a) ] is the last country and manufacturer where a substantial transformation has taken place with a guideline of the manufacturer performing 35% or more in value added to the article.” Id. ¶ 6 (emphasis added). Based on the Aeree affidavit, Higgins concludes in his affidavit that because, to his knowledge, the ATF had no rules or regulations governing the country of origin entry on ATF Form 6A, “... ATF’s position would have been to accept the Customs rulings.” Id. The Higgins affidavit was not offered by defendant as proof that value-added was the law. Defense counsel noted that at the August 9, 2001 habeas hearing: MR. HADDAD: ... our view ... is that without at all disturbing your Hon- or’s ruling that as a matter of law it would be impermissible to use the value-added approach to substantial transformation, ... there is nevertheless the question of whether a reasonable person at that time could have concluded that the value added approach to a substantial transformation was the law, was how the Government would address this and that would be the way you wanted to follow the law and apply the test. And that’s where in the guise of expert testimony we think it would have been appropriate for the jury properly instructed that this is not the law to hear that. Hr’g T. at 209. The principal issue presented in the § 2255 motion was not the actual legitimacy of the value-added concept. Rather, the issue in that motion was whether defendant could have reasonably believed in the legitimacy of that concept. Jasin, 215 F.Supp.2d at 572. “[WJhere the element of willfulness is critical to the defense, the defendant is entitled to wide latitude in the introduction of evidence tending to show lack of intent.” Garber, 607 F.2d at 99. Higgins’ proffered testimony is admissible on that issue. There is an additional reason why Higgins’ proposed testimony is admissible which is not related to defendant’s state of mind — it is admissible with respect to the relationship between substantial transformation and value added, and the value added evidence. That relationship between the two concepts was briefly mentioned in a footnote in Defendant’s Opposition to the Government’s Motion for Reconsideration and defendant’s Reply to Government’s Reply to Defendant’s Motion under 28 U.S.C. 2255. And, in the August 8, 2002 Memorandum, in considering Higgins’ proposed testimony, the Court observed that “[h]ad trial counsel presented this material [Higgins’ affidavit], the Court may or may not have decided to charge the jury on the value-added concept.” Jasin, 215 F.Supp.2d at 570. The Court, after reviewing the record in connection with the motion for reconsideration, now deems that issue extremely important. At trial, the Court ruled that the value-added concept was not supported by the evidence presented at trial. T., Dec. 2, 1992, at 181-86; App. at 3187-92. Accordingly, based on that lack of evidence, the Court denied trial counsel’s request for a jury instruction on value-added. Although the Court was shown a copy of the Aeree affidavit prior to that ruling, that affidavit was not in evidence and therefore not relied upon. The Court of Appeals, in affirming that ruling, expressly stated that the “evidence” provided “... no basis to overturn the District Court’s conclusion.” United States v. Jasin, mem. op. at 16-17 (3d Cir. Aug. 12,1999). On reconsideration the Court concludes that the Higgins and Aeree affidavits provide evidence of the relationship between the value-added theory and substantial transformation. Specifically, Higgins states in his affidavit that “... where there is a question with respect to the proper classification or categorization of items to be imported ... ATF would look to U.S. Customs for guidance when the terms in question are not specifically defined in ATF laws or regulations.” Higgins Aff. ¶ 6. In describing the practices of the Customs Service, Aeree states in his affidavit that under Customs rulings, “... the last country and manufacturer where a substantial transformation has taken place with a guideline of the manufacturer performing 35% or more in value added to the article ...” is the country of origin to be designated on ATF Form 6A. Aeree Aff. ¶ 5. The import of this testimony is that it ties the value-added concept to what the Court ruled was the applicable law, substantial transformation. It is relevant to the question whether an increase of 35 percent in labor and material costs to the pre-transformation value of an object — value added — resulted in a substantial transformation of the missile dummies sufficient to make Italy the country of origin. Had trial counsel located an ATF expert like Higgins and presented testimony from that expert and Vernon Aeree, the Court might have ruled differently on the value-added instruction. Defendant certainly was prejudiced by the failure of trial counsel to call such witnesses at trial. (3.) Yates’ Qualifícations and the Admissibility of His Proposed Testimony (i.) Yates’ Qualifications The government does not challenge Yates’ qualifications to opine on missile technology in the motion for reconsideration. Yates, a retired Colonel in the U.S. Army Reserve who has a Ph.D. in Electrical Engineering, is also a “... former Senior Executive Service member leader of the United States Army Missile Command’s Research Development, and Engineering Center’s Guidance and Control Directorate.” Aff. of Robert E. Yates, Def.’s Ex. 5 to § 2255 Motion (‘Yates Aff.”) ¶ 1. As of the date of his affidavit, September 13, 1994, Yates was “... Chief Technical Officer of AGRI, Inc., an engineering service company providing support to the U.S. Army Missile Command and U.S. Army Space Defense Command.... ” Id. In his career of industrial and government service, Yates has “... been involved in the full spectrum of design, development, manufacturing, and testing of tactical missile systems ...” and has served as an advisor on a number of U.S. Army missiles used on helicopters or under development for that type of launch application. Id. ¶ 2. Based on the authority cited in § V.A.2.(b.)(2.)(i.) of this Memorandum, supra, the Court concludes that Yates would qualify as an expert on missile technology. (ii.) Admissibility of Yates’ Expert Opinions The government next argues that Yates’ proposed testimony is not admissible because it is “... not clear on what basis he formed his opinions,” and his opinions “... apparently [are] based solely on what the defense has told him, which is unknown to the government and the Court.” Gov’t Mot. at 27, 29. That argument is rejected on the ground that Yates’ affidavit presents the necessary foundation for his opinions. In his affidavit, Yates explains the results of his “... qualitative assessment of the 'value added’ ...” to the Striker missiles. Yates Aff. ¶¶ 3-5 (explaining technical analysis of Striker missile dummies). He states that the creation of a “surrogate missile” requires a great amount of engineering work "... to correctly ballast the missile to ensure that the surrogate is dynamically and kinematically equivalent ...” to an armed missile. Id. ¶ 4. That is the “domi-na[nt] expense” in creating a surrogate missile. Id. According to Yates’ affidavit, “... the value added by the Italian Company, Elmer ... would constitute at least 90% of the worth of the missile parts sent from South Africa to Italy, and subsequently imported or planned for importation, into the U.S.” Id. ¶ 6. In light of this finding, Yates concludes "... that Elmer made significant transformation enhancements, exclusive of telemetry equipment, which exceeded 35% of the value of the South African parts imported into the United States.” Id. ¶ 7. That opinion is relevant because, together with the Higgins and Aeree affidavits, it provides evidence of the relationship between the value added concept and substantial transformation. Specifically, as with Higgins’ proffered testimony, the import of such testimony is that an increase of 35 percent in labor and material costs to the pre-transformation value of an object results in a substantial transformation of the object. On that issue Yates opined that such an increase occurred in all of the missile dummies, separate and apart from telemetry. If, as Aeree states, Customs rulings define substantial transformation as value-added of 35 percent or more and the last country where such a substantial transformation takes place is deemed the country of origin to be designated on ATF Form 6(a), and if, as Higgins states, ATF would have accepted the Customs rulings, Yates’ testimony would have been relevant to the question whether the work performed on the surrogate missiles by Elmer in Italy resulted in a substantial transformation sufficient to make Italy the country of origin. Had such evidence been in the record, the Court’s ruling on the value-added instruction might have been different. The government’s remaining objections to Yates — namely that his conclusions are “factually inapposite” because "... Elmer’s $140,000 bill to ISC ... was based solely upon the telemetry work provided,” and only one of the eleven imported units contained telemetry, and that "... certain assumptions accepted by Yates are not true,” namely, that all of the engineering work at Elmer in Italy was conducted by Italian engineers — are also rejected. With respect to the telemetry issue, Yates states in his affidavit that Elmer added value of more than 35 percent to the value of the missile dummies exclusive of