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U.S. v. GEISSLER

February 21, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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.

THE INDICTMENT

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:

Indictment ¶ 10 (emphasis added).

Count One of the indictment also lists two overt acts undertaken by Geissler in furtherance of the alleged conspiracy.

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 REGULATIONS

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 follows:

  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 requirements).

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 description:

  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 ...


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