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UNITED STATES v. ELLIOTT

March 10, 1967

UNITED STATES of America
v.
Jay Aubrey ELLIOTT and Rolf Dunbier, Defendants


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Defendants are under indictment for allegedly violating 18 U.S.C. ยง 956, which provides:

 
(a) If two or more persons within the jurisdiction of the United States conspire to injure or destroy specific property situated within a foreign country and belonging to a foreign government or to any political subdivision thereof with which the United States is at peace, or any railroad, canal, bridge, or other public utility so situated, and if one or more such persons commits an act within the jurisdiction of the United States to effect the object of the conspiracy, each of the parties to the conspiracy shall be fined not more than $5,000 or imprisoned not more than three years, or both.
 
(b) Any indictment or information under this section shall describe the specific property which it was the object of the conspiracy to injure or destroy.

 Defendants are charged with conspiring in the United States to destroy a railroad bridge in the Republic of Zambia and committing several acts in furtherance of that conspiracy within the United States; that the destruction of this bridge would effectively halt the supply of Zambian copper on the world market; and that defendants expected to profit economically from the ensuing copper shortage.

 Defendant Elliott now moves to dismiss the indictment. He asserts various constitutional defects in the statute under which, and the procedure by which, he was indicted. We deny the motion in all respects.

 Void-for-Vagueness

 Defendant contends that the statute is void for vagueness. He takes exception to the words "* * * a foreign country * * * with which the United States is at peace * * *", arguing that these words lack the required specificity. His argument in essence is that while these words may have had meaning in 1917 when the statute was passed, the more formal, and presumably, orderly conduct of a by-gone era of international relations has been replaced by an age of such turbulence and confusion that today it is impossible to determine when and with which foreign countries the United States is "at peace." He raises the examples of recent crises involving North Korea, Communist China, the Dominican Republic, Cuba, Haiti, Guatemala, North Vietnam and the Soviet Union to illustrate the difficulty faced by the citizen in ascertaining the legality of his course of action.

 Elliott is under indictment for conspiracy to destroy property in the Republic of Zambia. It is highly significant that he makes no allegation that our relations with that country have reached such a point of hostility that it is difficult to determine whether we are "at peace" with Zambia.

 Accordingly, defendant cannot demonstrate the purported vagueness of the statute by "* * * suggesting hypothetical cases taken from the peripheral areas of the statute's scope * * *. He must show that, as applied to his own case, the statute was so vague and uncertain that he was not presented with an 'ascertainable standard of guilt.' Winters v. People of State of New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948)." United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966). The established rule is that "The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined." United States v. Raines, 362 U.S. 17, 22, 80 S. Ct. 519, 523, 4 L. Ed. 2d 524 (1960); Jordan v. De George, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1961); United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963).

 Defendant relies upon a line of cases which have allowed the raising of hypotheticals to test the validity of a statute. *fn1" But such cases in which the defendant was so accorded standing involved restrictions placed on First Amendment freedoms. This relaxation of the usual standing requirement is an exception to the rule of United States v. Raines, supra, and is allowed only " * * * because of the '* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.'" Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965); United States v. National Dairy Products Corp., supra. There is, of course, no First Amendment issue here.

 We cannot regard this statute as being unconstitutionally vague. A statute does not have to meet impossible standards of specificity. Jordan v. De George, supra 341 U.S. at 231, 71 S. Ct. 703. It must just not forbid conduct "* * * in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *." Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888 (1959); Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).

 The words "at peace" and the statute as a whole conveys "* * * definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. De George, supra, 341 U.S. at 231-232, 71 S. Ct. at 708. The Courts have previously met the challenge of determining when the United States was at peace. See Lee v. Madigan, 358 U.S. 228, 79 S. Ct. 276, 3 L. Ed. 2d 260 (1958). Cf. Ludecke v. Watkins, 335 U.S. 160, 68 S. Ct. 1429, 92 L. Ed. 1881 (1948); United States v. Sobell, 314 F.2d 314 (2d Cir. 1963). Determining whether we are at peace with Zambia poses a problem no more difficult for a court or a citizen than that posed in understanding any statute dealing with complex behavior and concepts. E.g., United States v. Re, 336 F.2d 306 (2d Cir.), cert. denied, 379 U.S. 904, 85 S. Ct. 188, 13 L. Ed. 2d 177 (1964) where our Court of Appeals rejected the contention that "control" as used in the securities laws was unconstitutionally vague.

 The one salient fact that stands out is that the acts charged to this defendant are unequivocally within the prohibition of the statute. See Williams v. United States, 341 U.S. 97, 101, 71 S. Ct. 576, 95 L. Ed. 774 (1951). Defendant submits not a thread of evidence to lead us to any other conclusion but that a man of ordinary intelligence would know whether or not we are "at peace" with the Republic of Zambia. Whatever difficulty the statute poses as to others (and we see none), it is clear as to Elliott.

 Due-Process

 Defendant further contends that the statute violates due process in that it attaches criminal liability to a conspiracy in a situation wherein the government is without power to punish the substantive crime. Concededly, the territorial limitations inherent in common law concepts of jurisdiction raises some question as to the power of the United States to punish acts committed in a foreign state. See Huntington v. Attrill, 146 U.S. 657, 13 S. Ct. 224, 36 L. Ed. 1123 (1892); American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S. Ct. 511, 53 L. Ed. 826 (1909). But see United States v. Bowman, 260 U.S. 94, 43 S. Ct. 39, 67 L. Ed. 149 (1922); Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249 (1952); George Extraterritorial Application of Penal Legislation, 64 Mich.L.Rev. 609 (1966). However, even if we agree that the substantive offense - destruction of a bridge in Zambia - could not be punished by the United States, we find that the formation in the United States of a conspiracy to do so can be firmly prohibited nevertheless.

 The crime of conspiracy is separate and distinct from the substantive offense. The conspiracy is a separate crime completed when the agreement is made. See e.g., Williams, Criminal Law: The General Part 663 (1953); Martin v. United States, 100 F.2d 490 (10th Cir. 1938), cert. denied, 306 U.S. 649, 59 S. Ct. 590, 83 L. Ed. 1048 (1939). Accordingly, a state of the United States has the power to prosecute conspirators for an agreement made within its borders even though the substantive offense is without its jurisdiction. People v. Summerfield, 48 Misc. 242, 96 N.Y.S. 502 (Sup.Ct.1905); Thompson v. State, 106 Ala. 67, 17 So. 512 (1895); State v. Loser, 132 Iowa 419, 104 N.W. 337 (1905); Note, Developments - Criminal Conspiracy, 72 Harv.L.Rev. 922, 978 (1959). Cf. Dealy v. United States, 152 U.S. 539, 14 S. Ct. 680, 38 L. Ed. 545 (1894).

 The modern jurisdictional concept of weighing the relevant interests concerned (See International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)) further demonstrates the clear propriety that the United States ...


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