UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
April 11, 1974
UNITED STATES OF AMERICA
KENNETH BRUMAGE, FAIRMONT ELECTRONIC SALES CORP., LEON VAN SIMAEYS, JOSEPH JABRE, Defendants
The opinion of the court was delivered by: NEAHER
MEMORANDUM AND ORDER
NEAHER, District Judge.
Defendants Fairmont Electronic Sales Corporation ("Fairmont") and Kenneth Brumage, a corporate official, have moved to dismiss ten counts of a nineteen count indictment, contending that the statute alleged to have been violated, § 6(b) of the Export Administration Act of 1969 ("the Act"), 50 U.S.C. App. § 2405(b), is unconstitutionally vague. For the reasons which follow, defendants' motion is denied.
Nine of the counts, which are the focus of this motion, charge Fairmont, Brumage and Leon Van Simaeys with having willfully exported items of electronic and technical equipment, primarily oscilloscopes, without a validated export license, knowing (as revealed in the bill of particulars) that these items, although consigned to parties in Belgium, were indirectly destined for East Germany and Hungary, in violation of § 2405(b) and implementing regulations, 15 C.F.R. §§ 370.3, 371.3, 372.1, 387.6, 399.1. The remaining count in question alleges that all the defendants, Fairmont, Brumage, Van Simaeys and Joseph Jabre, conspired to export electronic and technical equipment in violation of the aforementioned provisions, in contravention of 18 U.S.C. § 371.
The Act in controversy essentially continues long-standing regulation of exports from the United States. It authorizes controls for three purposes -- national security, foreign policy and short supply. Congressional concern for national security and foreign affairs underlying the Act is emphatically expressed in the House Report accompanying the bill.
This concern is also reflected in the Act itself, in the Congressional findings in § 2401,
in the Congressional declaration of policy in § 2402,
as well as in § 2403(b) (1, 2, 4) and (c) and § 2404(a).
The Export Control Act of 1949, renewed in 1951, 1953, 1956, 1958, 1960, 1962 and 1965, "provides the President with the authority to prohibit or curtail exports from the United States, its territories, and possessions; and authorizes him to delegate this authority. . . . The export control authority, which has been delegated to the Secretary of Commerce, is administered by the Office of Export Control of the Bureau of International Commerce." H.R. Rep. No. 524, 1969 U.S. Code Cong. and Admin. News 2705.
It would seem that in implementing the broad political, economic and strategic objectives of the Act, the Office of Export Control "has created a veritable labyrinth of regulations concerning what may be exported to what countries under what conditions and by what procedures."
Berman and Garson, United States Export Controls Past, Present, and Future, 67 Colum.L.Rev. 791, 813 (1967). Accord, Davis, The Regulation and Control of Foreign Trade, 66 Colum. L. Rev. 1428, 1452 (1966). The questions presented in this case relate, however, to when a validated license is required, and not to whether or not one has been properly denied.
Section 2405(b) provides:
"Export to Communist-dominated nations; penalties
"(b) Whoever willfully exports anything contrary to any provision of this Act [sections 2401 to 2413 of the Appendix] or any regulation, order or license issued thereunder, with knowledge that such exports will be used for the benefit of any Communist-dominated nation, shall be fined not more than five times the value of the exports involved or $20,000, whichever is greater, or imprisoned not more than five years, or both."
Defendants aim their vagueness challenge at the phrase "for the benefit of any Communist-dominated nation." They argue that the words "Communist-dominated" are overly vague because reasonable men could differ as to which countries are covered by the statute. They query whether the term includes or has included countries such as Syria, Egypt or Chile. They note in particular that 15 C.F.R. § 370.11, which establishes seven groups of countries for export control purposes, distinguishes between nations that might arguably be classified as "Communist-dominated."
As for the phrase "for the benefit of", defendants question whether "if one exports goods to a non-Communist dominated nation and knows that the goods may be used in some remote manner to aid, promote, or for the advantage of a Communist-dominated nation, he is committing a crime" (Brumage brief, p. 10). Consequently, defendants maintain that § 2405(b) fails to set standards apprising an individual that his conduct might be criminal, and does not afford these defendants sufficient information as to the crime here alleged.
The concept of vagueness as a basis for a constitutional challenge of a statute involves a number of interrelated constitutional principles. Fittingly, perhaps, the "void for vagueness" doctrine is not easy to define. Nevertheless, the modern concept of the doctrine as a command of due process stresses two aspects: (1) fair warning to the potential criminal offender, and (2) standards sufficiently precise to guide the court and jury in determining whether a crime has been made out. Amsterdam, The Void-for Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 68 n. 3 (1960). Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974);
Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 15 L. Ed. 2d 447, 86 S. Ct. 518 (1966).
Analysis of the "void for vagueness" cases indicates that the doctrine "has been used by the Supreme Court almost invariably for the creation of an insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms." Amsterdam, supra at 75. However, "recognition that the vagueness doctrine is most frequently employed as an implement for curbing [State] legislative invasion of constitutional rights other than that of fair notice . . . does not mean that the doctrine may be indiscriminately invoked to curb all such invasions, or that there is not an actual vagueness component in the vagueness decisions." Id. at 87-88.
But however uncertain the outlines of the path ahead, there are well-known guideposts a court may follow in dealing with challenges to federal legislation. First, an act of Congres is presumptively valid. United States v. National Dairy Corp., 372 U.S. 29, 32, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963). "A federal statute is not automatically invalidated because difficulty is found in determining whether certain marginal offenses fall within its language." Id. Rather, federal courts consistently seek an interpretation which supports the constitutionality of federal legislation. Id. The Supreme Court has stated that it has a duty to authoritatively construe statutes where a serious doubt of constitutionality is raised and a construction of the statute is fairly possible by which the question may be avoided. United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), citing United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 28 L. Ed. 2d 822, 91 S. Ct. 1400 (1971).
Second, Congress has broad comprehensive powers "to regulate Commerce with foreign Nations" under Article I, § 8 of the Constitution. United States v. 12 200-ft. Reels of Super 8mm. Film, supra 413 U.S. at 125. Cf. Wickard v. Filburn, 317 U.S. 111, 118-29, 87 L. Ed. 122, 63 S. Ct. 82 (1942); N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 29-32, 81 L. Ed. 893, 57 S. Ct. 615 (1937).
Third, judicial review of a statute regulating foreign commerce or related to foreign affairs is more circumscribed where the alleged constitutional infirmity is vagueness than where the vagueness challenge is mingled with the assertion of independent constitutional guarantees. As the Supreme Court noted in United States v. National Dairy Corp., supra 372 U.S. at 36, involving a challenge to § 3 of the Robinson-Patman Act.
the approach to "vagueness" governing a case like this is different from that following in cases arising under the First Amendment.
Greater leeway is allowed in the field of regulatory statutes governing business activities where the acts limited are in a narrow category. Papachristou v. City of Jacksonville, supra 405 U.S. at 163, citing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S. Ct. 329, 96 L. Ed. 367 (1952) and United States v. National Dairy Corp., supra ; Smith v. Goguen, supra 415 U.S. at 573 n. 10. See also Amsterdam, supra at 74-75. Compare Kent v. Dulles, 357 U.S. 116, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958).
Fourth, interrelated with the foregoing distinction, is an element of standing. Defendants in cases having a first amendment component are frequently permitted to challenge a statute on the grounds that its vagueness might infringe on the rights of others, even though it is not invalid as applied to them. However, where such an element is lacking, the general rule is that
one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.
United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960) (and cases cited therein). Cf. Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, (1973).
Fifth, a statute is less likely to be found vague where a "willful" violation is an element of the offense defined. The rationale is that "where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act that he does is a violation of law." Screws v. United States, 325 U.S. 91, 101-03, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945). See Berman and Garson, supra at 864-66.
The meaning of the phrase "Communist-dominated nation" does not have to be determined in a vacuum. The regulations plainly identify those countries in Europe and Asia to which certain types of goods may not be exported without obtaining a specially validated license. Included are East Germany and Hungary, the two countries involved in this indictment. They and other countries in Group Y are unmistakably identified in the regulations as East European Communist countries. See n. 6 supra. Moreover, the Act itself provides for information to exporters, §§ 2403(a) (2)
So do the implementing regulations, e.g., 15 C.F.R. § 370.11, which clearly contemplate that those engaged in the business of exporting goods abroad will consult with the Office of Export Control so as to conform their business activities with the law. Defendants Fairmont and Brumage are quite clearly within the class of persons subject to the law and regulations and, one might infer, reasonably familiar with export licensing requirements.
Viewed in light of the foregoing, defendants' claim of vagueness loses substance and amounts to little more than a contention that the Act permits the exercise of excessive discretion in implementation. Delegation by the Congress to the President of regulatory authority over foreign affairs, and exports in particular, has been a long-standing practice. See, e.g., Berman and Garson, supra at 791-92 n. 1. Any challenge to the delegation contained in this Act would be unavailing in view of past Supreme Court rulings such as Zemel v. Rusk, 381 U.S. 1, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965), which upheld the statutory authority of the Secretary of State to refuse to validate passports of United States citizens for travel to Cuba.
Chief Justice Warren explained:
Because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress -- in giving the Executive authority over matters of foreign affairs -- must of necessity paint with a brush broader than that it customarily wields in domestic areas. . . . This does not mean that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice. However, the 1926 Act contains no such grant.
Zemel v. Rusk, supra 381 U.S. at 17.
Moreover, the Second Circuit rejected an attack on the delegation of authority contained in a wartime predecessor of the Act, 50 U.S.C. App. § 701, in United States v. Rosenberg, 150 F.2d 788, 790 (2 Cir.), cert. denied, 326 U.S. 752-53, 90 L. Ed. 451, 66 S. Ct. 90 (1945). Accord United States v. Bareno, 50 F. Supp. 520, 523-25 (D. Md. 1943. See also, United States v. Stone, 452 F.2d 42, 46-47 (8 Cir. 1971), and Samora v. United States, 406 F.2d 1095, 1098 (5 Cir. 1969).
As a federal statute regulating foreign commerce closely related to foreign affairs and national security, § 2405(b) is entitled to the highest presumption of validity. Application of the statute is sought in connection with exports allegedly destined for Hungary and East Germany, which the statute, together with implementing regulations, would comprehend under even the narrowest construction, n. 2 supra. As a penal statute, proof of willfulness will be required to permit such a violation to be found. But there is no question that Congress may validly provide a criminal sanction for the violation of rules or regulations which it has empowered the President or an administrative agency to enact. United States v. Grimaud, 220 U.S. 506, 55 L. Ed. 563, 31 S. Ct. 480 (1911).
Finding that § 2405(b) is neither vague on its face nor as applied in this case, the court denies defendants' motion to dismiss.