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State v. El Moghrabi

May 23, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GHADB EL MOGHRABI, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SULTAN M. ARAISHI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 96-9-1151-I.

Before Judges King, Coburn and Lefelt.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2001

Defendants, Ghadb El Moghrabi and Sultan Araishi, separately appealed from judgments entered after a joint jury trial. The judgments established their guilt under N.J.S.A. 2C:21-21c(4), a provision of the New Jersey Anti-Piracy Act. That provision, in relevant part, prohibits the possession for profit of videocassettes that "do not clearly and conspicuously disclose the true name and address of the manufacturer." The trial judge sentenced defendants to probation for five years and imposed on each a fine of $15,000. Both defendants contend that the statute is unconstitutionally vague because of its failure to define "manufacturer" and that the judge's charge defining "manufacturer" was erroneous. In addition, Araishi contends that the judge erred in denying his motion for acquittal and in imposing the fine. We consolidate their appeals for purposes of this opinion and affirm the judgments.

At about 3:30 a.m. on July 31, 1996, on the New Jersey Turnpike, two state troopers stopped a speeding minivan. Moghrabi was driving and Araishi was beside him. While standing at the passenger window, one of the troopers noticed a white videocassette box with the title "Independence Day" on the bench seat directly behind the defendants. The title alerted him to the possibility of criminal activity since he knew that the film was then playing in movie theaters. He noticed ten cardboard boxes behind the bench seat. Moghrabi admitted to the officer that he had about a thousand videocassettes in the cardboard boxes and that he knew they were illegal copies. The officer picked up the "Independence Day" box and noticed that the labeling was a poor reproduction of a legitimate label. He then inspected the ten cardboard boxes, some of which had "Amaray" printed on them, and found them to be filled with what turned out to be 800 videocassettes in individual boxes or jackets. An expert witness testified that "Amaray" boxes are often used to transport unauthorized videotapes and that all the videocassettes were unauthorized copies of films. She was further able to identify them as pirated because the films either had not been released on cassette format, or because the videocassettes were not professionally packaged or labeled, lacked a distinct mark called a heat stamp that is present on authorized tapes, or were of inferior quality. There were about a dozen different movie titles. Neither defendant offered any evidence other than by cross-examination. Both defendants lived in New York State, Moghrabi in Yonkers and Araishi in the Bronx. The minivan was apparently registered to Moghrabi who produced a Colorado driver's license; Araishi produced a Massachusetts driver's license. Throughout the confrontation Araishi was calm and fully complied with the trooper's instructions.

The section of the Anti-Piracy Act with which we are concerned reads in full as follows:

c. A person commits an offense who:

(4) For commercial advantage or private financial gain, knowingly advertises or offers for sale, resale or rental, or sells, resells, rents or transports, a sound recording or audiovisual work or possesses with intent to advertise, sell, resell, rent or transport any sound recording or audiovisual work, the label, cover, box or jacket of which does not clearly and conspicuously disclose the true name and address of the manufacturer, and, in the case of a sound recording, the name of the actual performer or group. [N.J.S.A. 2C:21-21c(4).]

The defendants contend that since "manufacturer" is not defined in the statute it could be understood as referring to the person or entity that (1) transferred the movie onto the cassette; (2) made the cartridge or casing; (3) made the original movie; (4) transferred the movie from a master copy; (5) owns the copyright for the movie; or (6) was licensed by the copyright owner to transfer the images to the cassette tape. As a result, they claim the statute violates the due process clause of the federal constitution because it is vague on its face. We disagree.

A law violates due process "if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983) (citing Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). Since a legislative enactment is cloaked with a "strong presumption" of constitutionality, it "will not be ruled void unless its repugnancy to the Constitution is clear beyond a reasonable doubt." State v. Muhammad, 145 N.J. 23, 41 (1996). The burden of proof rests on the party challenging the law's constitutionality. State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998). "Absent any explicit indications of special meanings, the words used in a statute carry their ordinary and well-understood meanings." State v. Afandor, 134 N.J. 162, 171 (1993) (citations omitted).

This statute has two purposes: to protect the rights of copyright owners through the prevention of pirating and to protect the public from being victimized by false and deceptive commercial practices. The first purpose is accomplished indirectly by subsection c(4), which serves the second purpose. See N.J.S.A. 2C:21-21, Assembly Judiciary, Law and Pub. Safety Comm. Statement to Assembly, No. 4232-L. 1991, c. 125 (stating, in pertinent part, that the "bill does the following: (1) Requires that recordings distributed in New Jersey display the name and address of the manufacturer for 'truth in labeling' purposes. See paragraph (4) of subsection c."); see also Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994), cert. denied, 514 U.S. 1035, 115 S. Ct. 1399, 131 L. Ed. 2d 287 (1995) (upholding California's Anti-Piracy statute, which, in pertinent part, is indistinguishable from ours, as a valid protection of the public against commercial deception and as neither preempted by federal copyright law, facially invalid under the First Amendment, nor overbroad).

In State v. Afandor, the Court found that the words "organizer, supervisor, financier or manager" used in the so-called "drug kingpin" statute, N.J.S.A. 2C:35-3, were not so ambiguous that they would "send the average citizen scrambling for a dictionary." 134 N.J. at 171.

Similarly here, the word "manufacturer" hardly requires reference to a dictionary for its understanding. Nor is there any ambiguity in its use in the context of this statute. The statute is concerned with audiovisual works, not their containers. Its evident purpose is to assist consumers by mandating that the manufacturer of the videocassette in question market the product with appropriate identification of the source so that if there are problems or complaints respecting the quality of the reproduction, the consumer will know where to lodge a complaint. Anderson v. Nidorf, 26 F.3d at 102. No purpose would be served in terms of consumer protection for "manufacturer" to be ...


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