The opinion of the court was delivered by: SAROKIN
The court here confronts a difficult and highly technical problem involving the propriety of regulations implementing a criminal statute. Underlying this specific issue, however, are more fundamental principles regarding the creation of criminal liability, the extent to which a defendant's subjective belief in the criminality of his or her acts affect such liability, and the compliance by the Executive branch with congressional directives regarding what may be made a crime and what may not.
On February 23, 1984, defendants Da-Chuan Zheng, Kuang-Shin Lin, David Tsai, Kuang Allen Yeung and Jing-Li Zhang were charged in a one-count indictment with conspiracy to violate the Arms Export Control Act, 22 U.S.C. § 2778 ("the Act"), and regulations promulgated pursuant thereto, all in violation of 18 U.S.C. § 371. In particular, the indictment alleges that defendants conspired to arrange for the export of certain radar jamming devices, known as wave tube amplifiers, to the People's Republic of China. The arrest of defendants culminated an approximately two-week long undercover investigation conducted by the United States Customs Service.
By opinion filed May 23, 1984, the court addressed defendants' various pretrial motions. One such motion sought dismissal of the indictment in this matter on the grounds of the vagueness of the Act and the regulations promulgated pursuant thereto. 22 C.F.R. § 121.01 et seq. ("the Munitions List"). Defendants argued that the section of the regulations within which the government claims wave tube amplifiers fall, 22 C.F.R. § 121.01, Category XI(a)(1)(d) (naming "active and passive countermeasures and counter-countermeasures" or "components" thereof), was unconstitutionally vague, since, as defendants then argued "to think that a person of ordinary intelligence would understand that wave tube amplifiers are prohibited items under Category XI of the Munitions List, defies logic." Pretrial Brief of Defendant Zheng at 4. The court, however, reserved decision on this issue, because of its inability to determine "whether or not wave tube amplifiers are reasonably encompassed within the term countermeasure in the eyes of the average arms exporter." United States v. Zheng, Crim. No. 84-64, unpub. op. at 5 (D.N.J. May 23, 1984) (" Opinion "), as well as the court's duty to evaluate vagueness challenges "in light of the particular facts at hand," id. at 6, especially where specific intent is a necessary element of the offense charged. Id. at 6-7.
Upon reconsideration, defendants do not, for the most part, dispute this holding. Rather, they now argue that, because Congress required that specific "items" be made a part of the Munitions List, see 22 U.S.C. § 2778(a)(1),
and because this statutory mandate was ignored in designating a generic category, "countermeasures," rather than more specific items such as wave tube amplifiers, such generic category must be deemed a nullity, and the indictment based upon it dismissed.
This argument is, of course, conceptually distinct from that regarding vagueness: at issue here is the Executive's obedience or disobedience of a congressional mandate, and not the objective clarity of the statute or regulations thus promulgated.
As the court noted in its opinion, such argument is irrelevant to a vagueness challenge. The court did, however, state that such argument "may" have factual merit, though it questioned defendants' standing to raise it. Opinion at 5 n.3. Upon motion for reconsideration, and supplemental briefs ordered by the court, the issue is clearly presented and thoroughly briefed for the first time. The court here addresses it, and for the reasons set forth below, dismisses the instant indictment.
First, there is no question but that the term "countermeasure" does not constitute an "item." "Item" is defined, for these purposes, as "an individual particular or detail singled out from a group of related particulars or items." Webster's Third New International Dictionary of the English Language Unabridged (" Webster's ") at 1203 (1976). "Countermeasures" or "counter-countermeasures" and their "components, parts, accessories, attachments and associated equipment . . .," 22 C.F.R. § 121.01, Category XI(a)(1), (d), even limited to those associated with "Military and Space Electronics," and even read in the context of the paragraph in which it appears,
comprise a "group of related particulars and items," and not the "individual particular or detail" itself. It is true, as the government argues, that in order to be an "item," an object need not be the "'most particularized' possible thing." Government's Supplemental Brief at 5. Indeed, the government is correct that an "item" need not be as specific as a "particular." As Webster's states, in discussing "item" and its synonyms:
ITEM, DETAIL AND PARTICULAR can signify one of the things, either separate and distinct or so considered, that constitute a whole. ITEM applies chiefly to each thing in a list of things or in a group of things that lend themselves to listing. DETAIL in this connection applies to each separate thing which enters into the building, form, or construction of something as a house, a painting, narrative, or operation. PARTICULAR in this connection implies a relationship with any whole and stresses that relationship more than ITEM or DETAIL, emphasizing the smallness, singleness, and concreteness of each item or detail in the whole . . .
Webster's at 1203 (capitals in original) (examples omitted). Nor, however, is an "item" as broad as a "category" or "group" from which items are derived. Hence, what is an "item" and what is a "particular" on the one hand, or a "group" on the other, is always relative. The government is correct that an "item" may always be further itemized, making it appear to be a "group" or "category," or it may be viewed in the larger context of the group of which it is a part. Thus, to use the government's example, "horses" can be identified "as jumpers, workhorses, racehorses and pleasure horses, or . . . further 'itemized' by more detailed breeds such as quarter horses, thoroughbreds, palominos, appaloosas, Clydesdales, etc.," Government's Supplemental Brief at 5. Of course, "horses" could also be thought of as "items" within the "group" of "quadripeds," "mammals" or even "living things." Which is the group and which is the item is therefore a matter of judgment and ought normally to be determined with regard to the legislative context in which the words appear.
That legislative context lends powerful support to defendants' arguments, as discussed, infra. However, the court need only rest its conclusion upon common sense. "Countermeasures" is simply too broad a description to be considered an "item"; to require greater specificity is not to mandate undue particularization, but to require the Executive merely to promulgate a list of "items" in conformity with the Act. This conclusion derives additional authority from the fact that wave tube amplifiers, in the words of Webster's, supra, "lend themselves to listing." As defendants point out, wave tube amplifiers themselves are specifically listed elsewhere in the Code of Federal Regulations, see 14 C.F.R. § 171.323, and have been the subject of inquiry by the United States Air Force Scientific Advisory Board Ad Hoc Committee on Traveling Wave Tube Amplifiers, see 46 Fed. Reg. 7427 (January 9, 1981); 46 Fed. Reg. 14374 (February 18, 1981) (investigating wave tube amplifier reliability), and by the Department of Commerce, International Trade Administration, see 46 Fed. Reg. 63364 (December 31, 1981) (investigating alleged dumping of wave tube amplifiers by Japanese manufacturers). Moreover, even the government admits that "wave tube amplifiers are common components of several other equipment types" described in 22 C.F.R. § 121.01, Category XI(a)(1). Government's Brief in Opposition to Pretrial Motion by Defendants at 13.
Furthermore, although the government continues to argue that requiring the List to include such specific "items" as wave tube amplifiers "would be cumbersome and difficult" and "would be to require a list much more static at any one point in time than would be wise in this world of fast-changing technology," Government's Supplemental Brief at 6, such argument is undercut by the many extremely detailed sections of the list that already exist. Hence, for example, the "chemical agents" listed in Category XIV(a) are specified in excruciating detail in 22 C.F.R. § 121.09, and even such terms as "vessels of war" and "aircraft" are defined with extraordinary specificity in 22 C.F.R. §§ 121.13, 121.14. Moreover, the face of the list, while not perfect, is replete with designations far more specific than "countermeasures." Within Category XI itself, terms like "simple fathometers" or "electro-mechanical beam former sonars and elementary sonobuoys" certainly describe "items," without apparently sacrificing the practicability or flexibility of the List. 22 C.F.R. § 121.01, Category XI(b). Even "aerial cameras, space cameras, special purpose military cameras, and specialized processing equipment therefor . . .," 22 C.F.R. § 121.01, Category XIII(a), is a listing far more specific than "countermeasures," and obviously adequate under the Act. See United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979). In sum, the court is convinced that the Munitions List could describe "items" within the category that is "countermeasures" without unduly burdening the Executive responsible for constituting the list or preventing modification thereof on a reasonably frequent basis.
The Act requires that the United States Munitions List be composed of items. By its terms
The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items ...