The opinion of the court was delivered by: Spatt, District Judge.
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. . ..
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
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 ...