United States District Court, Eastern District of New York
February 21, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
ROGER GEISSLER, DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM AND ORDER
Defendant Roger Geissler ("Geissler") moves to dismiss Count
One of a two-count indictment*fn1 on the grounds that it fails
to charge a viable offense and/or that the offense charged is
unconstitutionally vague as applied. For the reasons stated
below, the defendant's motion is denied in all respects.
In the indictment Geissler is charged with violating federal
law and regulations governing the export of commodities to
foreign nations (in this case to Iran). Specifically, the
Export Administration Regulations ("EAR"), promulgated pursuant
to the Export Administration Act, 50 U.S.C. App. §§ 2401-2420,
and administered by the Department of Commerce, outline
licensing requirements for various commodities which are
exported to certain countries. These commodities are enumerated
in the EAR Commodity Control List ("CCL"), 15 C.F.R. §
799.1(a). Count One of the indictment charges Geissler and
others with the following crime:
"ROGER GEISSLER . . . and others did knowingly,
wilfully and unlawfully combine,
conspire, confederate and agree to commit an
offense against the United States in violation of
Title 50, United States Code App., Section 2410
and the Export Administration Regulations
promulgated thereunder, 15 C.F.R. § 768, et seq.,
by conspiring to engage in the business of
exporting and causing to be exported from the
United States articles, to wit, military aircraft
tires for F-14 military aircraft, without obtaining
a required United States Department of Commerce
license for such export."
Indictment ¶ 10 (emphasis added).
Count One of the indictment also lists two overt acts
undertaken by Geissler in furtherance of the alleged
Geissler argues that tires for F-14 military aircraft are not
"commodities" covered by the CCL and therefore by the EAR, and
as a result Count One fails to charge a viable offense.
Geissler Memorandum of Law at p. 2. Moreover, Geissler claims
that even if F-14 military tires are found in the CCL and
therefore within the EAR, such a "strained and irrational"
interpretation of the EAR renders it unconstitutional as
"impermissibly vague in their application" in this case.
Geissler Reply Memorandum of Law at p. 10. Geissler apparently
does not dispute the fact that the country to whom he allegedly
conspired to export F-14 aircraft tires — Iran — is a country
identified by Commerce Department regulations as a destination
requiring an export license.
The EAR are designed, inter alia, to "protect the domestic
economy from the excessive drain of scarce materials and to
reduce the serious inflationary impact of foreign demand" for
certain goods, and to "further significantly the foreign policy
of the United States and to fulfill its international
responsibilities." 15 C.F.R. § 770.1(a)(1) and (2). In order to
carry out their stated purposes, the EAR contain detailed
parameters outlining what commodities exported to which
countries are within the Commerce Department's jurisdiction.
The general export proscription contained in the EAR is as
Subject to the provisions of §§ 770.4, 770.5, and
770.6, the export from the United States of all
commodities . . . is hereby prohibited unless and
until a general license authorizing such export
shall have been established or a validated license
or other authorization for such export shall have
been granted by the Office of Export Licensing. . ..
15 C.F.R. § 770.3(a).
The term "commodities" is defined broadly, as "[a]ny article,
material or supply except technical data." 15 C.F.R. § 770.2.
Furthermore, the EAR provide detailed instructions for applying
for and obtaining export licenses where one is required as well
as detailed procedures for appealing agency denial of license
applications. See, e.g., 15 C.F.R. §§ 770.11, 770.12, 770.13,
770.14, 770.15, and 15 C.F.R. Parts 771 (General Licenses), 772
(Individual validated licenses), 773 (Special licensing
procedures), 774 (Reexports), and 775 (Documentation
All commodities under the export licensing jurisdiction of
the Department of Commerce are contained on the CCL.
See 15 C.F.R. § 799.1(a) (the CCL "includes all commodities
subject to U.S. Department of Commerce export controls") and §
799.1(f) ("All items subject to Commerce licensing jurisdiction
are included on the CCL, either in a specific commodity listing
or in an 'other, n.e.s.'*fn2 entry at the end of each
Commodity Group"). The EAR enumerate certain "factors" to be
considered in determining whether a commodity should appear on
the CCL, including the commodity's civilian use, military use,
and its availability abroad. See 15 C.F.R. §
770.1(b)(3)(i)-(vi).*fn3 The CCL is broken down into ten
general groups. Contained within each group are
commodity entries identified by a four digit number plus a
letter — the Export Control Commodity Number ("ECCN"). Each
digit of this number communicates a certain descriptive meaning
for the commodity, i.e., the first digit relates to the
strategic level of control associated with the commodity. See
15 C.F.R. § 799.1(b). The CCL does not identify the commodities
within Commerce Department jurisdiction any more specifically
than the ECCNs contained within each group.
The instant indictment concerns CCL Commodity Group Four,
entitled "Transportation Equipment." Group Four contains
twenty-four ECCNs. At oral argument, and in their brief,
see Government Memorandum of Law at p. 11, the Government
contended that an export license was required for F-14 military
tires (allegedly destined for Iran) by reason of Commodity
Group Four, ECCN 6498F, which contains the following
Other aircraft parts and components, n.e.s.; other
boats, including inflatable boats, n.e.s.; other
diesel engines for trucks, tractors, and automotive
applications of continuous brake horsepower of 400
BHP (298 kW) or greater . . . n.e.s.; other
underwater camera equipment, n.e.s.; other
submersible systems, n.e.s.; and specially designed
parts for the above equipment.
15 C.F.R. § 799.1, Supp. 1, Group 4, 6498F (emphasis added).
ECCN 6498F also specifically states that a validated license
is required for 6498F commodities exported to Iran.
See 15 C.F.R. § 799.1, Supp. 1, Group 4. 6498F ("Validated
License Required: . . . Iran . . .").
In addition to outlining those commodities within Commerce
Department export licensing jurisdiction, the EAR, at 15 C.F.R.
§ 770.10, also delineates the categories of commodities outside
of Commerce Department jurisdiction. Significantly, 15 C.F.R. §
770.10(a), entitled "Exports which are not controlled by the
Office of Export Licensing," provides that "Regulations
administered by the Office of Munitions Control, U.S.
Department of State, . . . govern the export of defense
articles and defense services on the U.S. Munitions List."*fn4
Category VIII of the U.S. Munitions List, entitled, "Aircraft,
Spacecraft, and Associated Equipment," states: "(g) Components,
parts, accessories, attachments, and associated equipment . . .
specifically designed or modified for the articles in
paragraphs (a) through (f) of this category [including
"aircraft"], excluding aircraft*fn5 tires and propellers used
with reciprocating engines." 15 C.F.R. Pt. 770, Supp. 2,
Category VIII(g) (emphasis added).
By the terms of Category VIII(g) of the U.S. Munitions List,
export of F-14 aircraft tires are clearly excluded from State
Department licensing jurisdiction. Moreover, none of the other
categories of commodities listed in section 770.10 as outside
of Commerce Department jurisdiction apply to F-14 aircraft
In alleging that defendant Geissler committed an offense
against the United States in violation of 50 U.S.C.App. § 2410
and the EAR, the indictment charges that "At all times relevant
to this indictment, military aircraft tires for the F-14
military aircraft were governed by the CCL." Indictment ¶ 5.
Defendant Geissler moves to dismiss the indictment for failure
to charge an offense in Count One because "[t]he articles in
question, tires for the F-14 military aircraft, are not subject
to the export licensing controls of the Department of Commerce.
. . ." Geissler Memorandum of Law at p. 2. In addition,
Geissler claims that "even assuming arguendo that the tires are
by implication subject to the Commerce Department regulations,
the law, as it applies to the goods at issue, is so vague that
fails to give prior warning that the objective was forbidden .
. . [and] would be unconstitutionally applied." Geissler
Memorandum of Law at pp. 2-3. In this Court's view, both such
contentions are without merit.
A. Failure To Charge An Offense
Upon reviewing the relevant portions of the EAR, the Court
finds that F-14 aircraft tires are contained in the CCL and
therefore are covered by the EAR.
Section 770.3(a) of the EAR expressly states that "the export
from the United States of all commodities" is governed by the
licensing requirements of the EAR unless "controlled by another
U.S. Government agency (see § 770.10)." 15 C.F.R. § 770.3(a)(3)
(emphasis added). The term "commodities" is defined as "[a]ny
article, material or supply except technical data," a
definition which certainly encompasses F-14 aircraft tires. 15
C.F.R. § 770.2. The EAR does not explicitly exclude coverage of
F-14 aircraft tires from its jurisdiction, and no other
government agency, as listed in section 770.10, controls the
export of F-14 tires. Moreover, the only other agency which
presumably would regulate the export of F-14 aircraft tires —
the State Department — explicitly excludes F-14 aircraft tires
from its jurisdiction. See 15 C.F.R. Pt. 770, Supp. 2, Category
VIII(g). It is reasonable to conclude, therefore, that F-14
tires are within Commerce Department jurisdiction.
The specific EAR provision governing F-14 aircraft tires,
correctly identified by the Government, is 15 C.F.R. § 799.1,
Supp. 1, Group 4, ECCN 6498F: "Other aircraft parts and
components, n.e.s. [not elsewhere specified]. . . ." The Court
finds that a plain reading of this language indicates that F-14
aircraft tires come within the terms of 6498F. A reasonably
prudent person, no less a sophisticated businessman and arms
exporter, would read and understand ECCN 6498F as including
F-14 aircraft tires. Stated simply, "[o]ther aircraft parts and
components, n[ot] e[lsewhere] s[pecified]" clearly covers the
commodity at issue in this indictment, a finding consistent
with both the stated jurisdiction of the EAR and the generic
nature of the EAR groups themselves.*fn6
Geissler argues that Commerce Department jurisdiction and the
EAR apply only to non-military or civilian commodities or to
"dual use" commodities — commodities with both military and
civilian application. Geissler reasons that purely military
commodities, such as F-14 aircraft tires, are within the
province of State Department regulation. Because F-14 aircraft
tires are exclusively for military use, Geissler concludes that
they cannot be covered by the EAR.
Although initially appealing, Geissler's legal argument finds
no support in the applicable regulations. Nowhere does the EAR
limit its jurisdiction to solely non-military and "dual use"
commodities. In fact, the EAR sets forth a broad jurisdictional
mandate which includes "all commodities" unless regulation is
controlled by "another U.S. Government agency (see § 770.10)."
15 C.F.R. § 770.3(a)(3). Nothing within section 770.10,
including the United States Munitions List (which explicitly
excludes regulation of military aircraft tires), regulates F-14
tires. This Court further notes that Geissler makes no attempt
to explain how his interpretation of the EAR — that export of
F-14 aircraft tires is not within Commerce Department or State
Department jurisdiction — could be consistent with the EAR
statement that all commodities are within Commerce Department
jurisdiction unless regulated by another agency. See 15 C.F.R.
Furthermore, some Group 4 ECCN's in the EAR are explicitly
directed to commodities which have solely military application.
See, e.g., ECCN 2406A ("Vehicles specially
designed for military purposes and specially designed
components therefor, excluding vehicles listed in [the U.S.
Munitions List]"); ECCN 2410A ("Equipment Specially Designed
for Military Purposes"); and ECCN 2414A ("Specialized Military
Training Equipment"). Also, other ECCN's in Group 4
specifically restrict their effect to commodities which have
purely civilian application. See, e.g., ECCN 5460F ("Other
nonmilitary aircraft and demilitarized military aircraft . .
."); and ECCN 5480B ("Nonmilitary mobile crime science
laboratories . . ."). It is therefore apparent that the EAR has
provided for solely military and solely civilian commodities in
certain instances. Despite Geissler's contention to the
contrary, the EAR can, and ECCN 6498F clearly does apply to a
solely military commodity.
The case law cited as authority by Geissler for the
proposition that the EAR apply only to non-military or dual use
commodities is also non-dispositive. Neither United States v.
Helmy, 712 F. Supp. 1423 (E.D. Cal. 1989), nor United States v.
Malsom, 779 F.2d 1228 (7th Cir. 1985), cite to any support in
the enabling legislation or in the regulations themselves for
In Helmy, the court addressed the issue of whether a
defendant could take discovery of the State Department's
determination to place a commodity on the United States
Munitions List. Although in a footnote the court stated that
the Export Administration Act "regulates the use of 'dual use'
articles," the court did not analyze its characterization of
the Export Administration Act nor did it cite to language in
the Act employing the "dual use" construction. 712 F. Supp. at
1424 n. 1. Similarly, the court in Malsom, while analyzing
whether certain commodities are governed by the EAR, did not
substantiate its statement that dual use commodities require a
Commerce Department license and exclusively military
commodities require a State Department license. 779 F.2d at
1231. In fact, nowhere in either Helmy or Malsom is there a
discussion of whether solely military commodities are covered
by the EAR. The Court further notes that the United States
Munitions List does not state that all solely military
commodities must come within State Department and not Commerce
Department jurisdiction. In sum, this Court is unable to
discern any reference in the EAR or in the Export
Administration Act (or in the U.S. Munitions List) to "dual
use" commodities or to a limitation of the EAR to non-military
or dual use commodities.
Geissler cites to 50 U.S.C.App. § 2416(c) for the proposition
that under the Export Administration Act only civilian aircraft
and not military aircraft are governed by the Department of
Commerce. Geissler Reply Memorandum of Law at p. 7. However,
section 2416(c), entitled "Effect on other Acts," merely
Notwithstanding any other provision of law, any
product (1) which is standard equipment, certified
by the Federal Aviation Administration, in civil
aircraft and is an integral part of such aircraft,
and (2) which is to be exported to a country other
than a controlled country, shall be subject to
export controls exclusively under this Act . . .
Any such product shall not be subject to controls
under Section 38(b)(2) of the Arms Export Control
Act [22 U.S.C.A. § 2778(b)(2)].
50 U.S.C.App. § 2416(c).
While section 2416(c) does limit export of certain civilian
aircraft equipment to Commerce Department jurisdiction, section
2416(c) in no way excludes military aircraft equipment from
Commerce Department jurisdiction in all circumstances.
Finally, in support of his argument that the Commerce
Department does not have jurisdiction over solely military
commodities, Geissler refers to Interpretation 20 of the EAR,
15 C.F.R. § 799.2, Supp. 1, which states:
(a) Aircraft, and parts, accessories and components
therefor. Aircraft, parts, accessories, and
components defined in Categories VIII and IX of the
Munitions List (see supplement No. 2 to Part 770)
are under the export licensing authority of the
U.S. Department of State. All other aircraft, and
parts, accessories and components therefor, are
the export licensing authority of the U.S.
Department of Commerce.
The following aircraft, parts, accessories and
components are under the licensing authority of
the U.S. Department of Commerce: [(1) through
15 C.F.R. § 799.2, Supp. 1, Interpretation 20 (emphasis added)
Geissler argues that because F-14 aircraft tires do not
belong to any of the six categories listed in Interpretation
20(a) they are not a commodity within the jurisdiction of the
EAR and the Commerce Department. Geissler Memorandum of Law at
pp. 11-13. The Court finds Geissler's argument in this regard
to be unpersuasive. First, Interpretation 20(a) specifically
states that all aircraft parts
defined in . . . the Munitions List . . . are
under the export licensing authority of the U.S.
Department of State. All other aircraft, and parts,
accessories and components therefor, are under the
export licensing authority of the U.S. Department
15 C.F.R. § 799.2, Supp. 1, Interpretation 20 (emphasis added).
Thus, Interpretation 20(a) clearly provides that aircraft
tires are covered either in the EAR or in the State Department
regulations. Since the State Department regulations
specifically exclude F-14 aircraft tires, see 15 C.F.R. Pt.
770, Supp. 2, Category VIII(g), by the terms of Interpretation
20(a) the EAR therefore must cover F-14 aircraft tires.
Second, although categories (1) through (6) of Interpretation
20(a) do not expressly apply to F-14 aircraft tires, this
omission in no way indicates that F-14 aircraft tires are not
covered by the EAR. Interpretation 20(a) does not specifically
exclude F-14 aircraft tires from the EAR. The introductory
sentence to categories (1) through (6) of Interpretation 20(a)
states that "The following aircraft, parts, accessories and
components are under the licensing authority of the U.S.
Department of Commerce. . . ." 15 C.F.R. § 799.2, Supp. 1,
Interpretation 20(a). The enumerated categories are not,
however, prefaced by a statement stating that the listed items
are the only aircraft parts under EAR jurisdiction, the
interpretation urged by Geissler.
In sum, this Court finds that the plain language of the EAR,
namely 15 C.F.R. § 799.1, Supp. 1, Group 4, ECCN 6498F, read in
conjunction with the plain language of 15 C.F.R. §§ 770.3(a)
and 770.10, indicates that F-14 aircraft tires are contained in
the CCL and are therefore covered by the EAR. Accordingly,
defendant Geissler's motion to dismiss Count One of the
indictment on the ground that it fails to charge an offense is
B. Unconstitutional Vagueness
Geissler argues that if F-14 aircraft tires are found to be
within the CCL, then 50 U.S.C.App. § 2410 is unconstitutionally
vague because it failed to give him prior warning that export
of F-14 aircraft tires to Iran without an export license was
forbidden. Geissler Memorandum of Law at pp. 17-19. Geissler
contends that the prohibition contained in the EAR for export
of F-14 aircraft tires to Iran "could only be by implication,"
and that such "'between the lines,' after the fact prohibitions
are unconstitutional when applied in the criminal context."
Geissler Memorandum of Law at p. 17.
In response, the Government contends that the EAR provided
adequate notice to Geissler of the applicable prohibitions and
provided appropriate guidance regarding prosecution of
violations. In addition, the Government claims that because it
must prove that "Geissler knowingly intended to commit an act
in violation of" 50 U.S.C. App. § 2410 and the regulations
promulgated thereunder (the EAR), "the vagueness argument is
overcome by the requirements of a trial." Government Memorandum
of Law at p. 13.
A criminal statute is unconstitutionally vague if it fails to
provide "reasonably clear guidelines" to the defendant and to
the trier of fact in determining whether a crime has been
committed so as "to prevent 'arbitrary and discriminatory
enforcement.'" Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct.
1242, 1247, 39 L.Ed.2d 605 (1974) (citations omitted).
criminal statutes necessarily include an element of
willfulness, they are less likely to be found
unconstitutionally vague. Screws v. United States, 325 U.S. 91,
102, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945) ("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 which he does is a violation of law").
Geissler does not argue that the statute is vague on its
face. See, e.g., Kolender v. Lawson, 461 U.S. 352, 357, 103
S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) ("the
void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement"). Instead, Geissler claims that the
statute is unconstitutionally vague as applied to him in this
A similar constitutional challenge was made to a criminal
statute in United States v. National Dairy Prods. Corp.,
372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), in which the
defendant corporation and the defendant were indicted under
section three of the Robertson-Patman Act, 15 U.S.C. § 13a, for
selling goods at "unreasonably low prices for the purpose of
destroying competition." 372 U.S. at 29, 83 S.Ct. at 594. The
defendants challenged the statute as unconstitutionally vague
and indefinite as applied, specifically with respect to sales
it had made below cost. Id. The Court set forth the applicable
constitutional analysis as follows:
Void for vagueness simply means that criminal
responsibility should not attach where one could
not reasonably understand that his contemplated
conduct is proscribed. . . . In determining the
sufficiency of the notice a statute must of
necessity be examined in light of the conduct with
which a defendant is charged.
372 U.S. at 32-33, 83 S.Ct. at 597-598 (citations omitted).
Accord United States v. Mazurie, 419 U.S. 544
, 550, 95 S.Ct.
710, 714, 42 L.Ed.2d 706 (1975) ("vagueness challenges to
statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand").
The Court in National Dairy then determined that the
statutory language of section 13a of the Robinson-Patman Act
was sufficiently specific to give the defendants "sufficient
warning that selling below cost for the purpose of destroying
competition is unlawful. . . ." 372 U.S. at 33, 83 S.Ct. at
598. In reaching this conclusion, the Court held:
we think the additional element of predatory
intent alleged in the indictment and required by
the Act provides further definition of the
prohibited conduct. . . . The Act here . . . in
prohibiting sales at unreasonably low prices for
the purpose of destroying competition, listed as
elements of the illegal conduct not only the
intent to achieve a result — destruction of
competition — but also the act — selling at
unreasonably low prices — done in furtherance of
that design or purpose. It seems clear that the
necessary specificity of warning is afforded when,
as here, separate, though related, statutory
elements of prohibited activity come to focus on
one course of conduct.
Id. at 35, 83 S.Ct. at 599 (some emphasis in original and some
Like in the criminal statute at issue in National Dairy, 50
U.S.C.App. § 2410 sets forth the requisite criminal intent
necessary to sustain a conviction, as follows:
whoever knowingly violates or conspires or
attempts to violate any provision of this Act . .
. or any regulation, order, or license issued
thereunder shall be fined not more than five times
the value of the exports involved or $50,000,
whichever is greater, or imprisoned not more than
5 years, or both.
The statute at issue in this indictment specifies the
predatory intent defining the prohibited conduct; namely,
"knowingly" violating or conspiring to violate the Export
Administration Act and the EAR. Furthermore, the indictment
Geissler with "knowingly, wilfully and unlawfully" conspiring
to commit an offense against the United States in violation of
50 U.S.C. § 2410 and the EAR "by conspiring to engage in the
business of exporting . . . from the United States . . .
military aircraft tires for F-14 military aircraft, without
obtaining a required United States Department of Commerce
license for such export." Indictment ¶ 10. Thus, consistent
with the requirement of National Dairy, in order to obtain a
conviction of Geissler, the Government must prove beyond a
reasonable doubt that Geissler knowingly exported from the
United States F-14 military aircraft tires, without obtaining
an export license as required by 15 C.F.R. § 799.1, Supp. 1,
Group 4, ECCN 6498F.
A review of the precedents reveals that "as applied"
vagueness challenges to export licensing criminal statutes and
regulations have been rejected by federal courts. For example,
in United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979), the
defendant was indicted for unlawfully "attempting to export a
military aircraft gunsight camera without a State Department
license." Id. at 132. The defendant argued on appeal that the
State Department "regulations were unconstitutionally vague in
that they did not describe the regulated camera in sufficient
detail and did not require that purchasers be notified somehow
that criminal liability would follow upon the camera's
unlicensed export." Id. The court rejected the defendants
argument, as follows:
A defendant may successfully assert
unconstitutional statutory vagueness where the
proof shows that he could not reasonably have
understood that his contemplated conduct was
proscribed. . . . this determination must be made
in the light of the facts before the court. . . .
We are dealing here with a regulation of limited
scope aimed at a small and relatively sophisticated
group of persons. . . . It put exporters squarely
on notice that they need a license in order to
export a camera such as the KB25A, and therefore
satisfied constitutional requirements.
Id. at 133 (citations omitted) (emphasis added).
Similarly, in United States v. Gregg, 829 F.2d 1430 (8th Cir.
1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1994, 100 L.Ed.2d
226 (1988), the court rejected a defendant's "as applied"
vagueness challenge to the Commerce Department's export
regulations. In holding that the regulations were
constitutional as applied to the defendant, the court
recognized that any possible ambiguity in the regulations —
the basis for the defendant's as applied challenge — was
vitiated by the trial of the defendant and the Government's
obligation to prove willfulness beyond a reasonable doubt:
When the case gets to court, all that the
Government needs to prove is that the item
exported appears on the Munitions List or the
Commodity Control List, as the case may be (and,
of course, that the defendant knowingly and
willfully exported it, with the necessary intent
and knowledge, and without an appropriate license).
There is no unconstitutional vagueness. It is as
simple a matter as forbidding a passenger to ride
on a train without a valid ticket.
Id. at 1437 (emphasis added).
Finally, in United States v. Zheng, 768 F.2d 518 (3d Cir.
1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 806, 88 L.Ed.2d
781 (1986), the defendants argued that the State Department's
U.S. Munitions list and its enabling legislation "was
unconstitutionally vague because it failed to put them on
notice that the wave tube amplifiers were covered by the Arms
Control Export Act." Id. at 520. The circuit court in Zheng
left undisturbed the district court's holding that the
defendants' "as applied" constitutional challenge could not be
determined before trial because "'absent the resolution of
certain disputed facts' . . . [the court] could not determine
before trial 'whether or not wave tube amplifiers are
reasonably encompassed within the term countermeasure in the
eyes of the average arms exporter.'" Id.
Geissler's "as applied" vagueness challenge can only be
addressed "in light of the facts of the case at hand."
v. Mazurie, 419 U.S. at 550, 95 S.Ct. at 714. As already
discussed, the particular regulation Geissler is charged with
violating, 15 C.F.R. § 799.1, Supp. 1, Group 4, 6498F, applies
to F-14 aircraft tires. The Export Administration Act, the EAR
and the indictment clearly set forth the element of predatory
intent that the Government must prove Geissler possessed beyond
a reasonable doubt to sustain a conviction at trial; namely,
that Geissler knowingly exported F-14 aircraft tires to Iran,
without obtaining an export license, in violation of 50
U.S.C.App. § 2410 and the EAR. There are no facts before the
Court at this time which indicate that, as a matter of law, the
Government could not meet its burden of proof in this case. As
a result, Geissler's constitutional vagueness challenge is
For the reasons stated above, Geissler's motion to dismiss
Count One of the indictment is denied.