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United States v. Zheng

July 19, 1985


Appeal from the United States District Court for District of New Jersey (D.C. Criminal Nos. 84-00064-01/2/3/4/5).

Author: Weis

Before: SEITZ, WEIS and ROSENN, Circuit Judges


WEIS, Circuit Judge.

The government contends that in dismissing an indictment he district court adopted and unduly restrictive definition of the word "items." The term appears in a statute that requires the President to designate "items" to be included on a list of defense articles whose sale and exportation are restricted. We conclude that the list as prepared by the Executive complied with the congressional direction. We will therefore vacate the district court's order.

In one a count indictment, defendants were charged with having conspired to violate the Arms Export Control Act, 22 U.S.C. § 2778 (1982) by arranging for the unlawful purchase and export of "defense articles" included on the United States Munitions List, 22 C.F.R. § 121.01 (1984). Finding that the listing cited by the government did not have the specificity required by the Act, the district court dismissed the indictment.*fn1

According the the criminal complaint underlying the indictment, defendants met with an undercover customs agent on several occasions and discussed the purchase of certain high technology equipment, including "English Electric Valve Co. Travelling Wave Tube Amplifier Chains and Watkins-Johnson, Inc. Travelling Wave Tube Amplifiers. "After acquisition, these devices were to be shipped to the Peoples Republic of China.

The customs agent informed defendants that the devices "could not be sold without an export license an further that he could not obtain the necessary licensing." Defendant persisted, explaining that they would pay the agent for the risks incurred. After the details of the plan were agreed on, defendants were arrested and charged with conspiracy.

Shortly after arraignment, defendants filed a motion to dismiss, contending that the statute and regulations were impermissibly vague. The government responded that the wave tube amplifiers were "active and passive countermeasures" included on the Munitions List and that defendants were aware that it was unlawful to export the equipment without a license. Concluding that the vagueness issue could not be resolved until certain facts were established, the district court deferred ruling on this motion.

Defendants then filed a second motion to dismiss, this time contending that the Munitions List designation "countermeasures" was a generic term which did not comply with the Arms Export Control Act's requirement that the President designate "items". Observing that this argument was conceptually distinct from the vagueness challenge made in the first dismissal motion, the district court examined the merits of the defendants' position.

The court noted that Congress had authorized the President to "designate those items which shall be considered as defense articles, and that once so designated, the items became controlled exports. At the outset of its analysis, the court stated "that the term 'countermeasure' does not constitute an 'item.'" In support of this conclusion, the court set out the dictionary definition of "item" and reasoned that even in the context of the Munitions List, "countermeasures" comprised a "group of related particulars and items' and not the individual particular of detail' itself." In the court's view, countermeasures "clearly is not an 'item' but a category or classification which included a variety of items."

The court determined that Congress had used the word "item" to obtain a greater particularity in the Munitions List so as to facilitate congressional oversight and "increase the quality of notice available to potential exporters." Holding that the congressional use of "items" required more specificity than the court attributed to "countermeasure and counter-countermeasures," it concluded that the terms were a "nullity," which could not serve as a basis for a crime. Therefore the indictment was dismissed.

On this appeal, the government contends that the district court erred in finding a congressional intent to require a more particularized list, in failing to give appropriate deference to the administrative interpretation, and in misconstruing the plain meaning of the word "items."

At the outset, it is important to put aside the vagueness issue. In their initial motion to dismiss, defendants argued that the statute was unconstitutionally vague because it failed to put them on notice that the wave tube amplifiers were covered by the Arms Export Control Act. The district court carefully analyzed the defendants' contention which was limited to wave tube amplifiers and not to other articles included on the Munitions List. Thus, defendant did not argue that the statute was vague on its face, but rather that ...

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