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UNITED STATES v. BRUMAGE

April 11, 1974

UNITED STATES OF AMERICA
v.
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. *fn1"

 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. *fn2" This concern is also reflected in the Act itself, in the Congressional findings in § 2401, *fn3" in the Congressional declaration of policy in § 2402, *fn4" 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. *fn5"

 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." *fn6" 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); *fn7" 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 ...


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