# Petition for Writ of Certiorari — Da-Chuan Zheng v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1079%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 474 U.S. 1060 ## Text Bo 864) | IN THE = _nienenali Supreme Court of the United ‘States OCTOBER TERM, 1985 DA-CHUAN ZHENG, and KUANG-SHIN LIN Petitioners, -VS- UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT SEYMOUR MARGULIES Counsel of Record Margulies, Margulies & Wind A Professional Corporation 921 Bergen Avenue Jersey City, New Jersey 07306 Of Counsel (201) 963-0700 Maurice C. Brigadier Attorneys for Kuang-Shin Lin JOHN B. LIVELLI Counsel of Record Robinson, Wayne, Levin Riccio & La Sala On the Petition Gateway One Seymour Margulies Newark, New Jersey 07102 John B. Livelli (201) 621-7900 Robert E. Margulies Attorneys for Da-Chuan Zheng QUESTIONS PRESENTED FOR REVIEW 1. Does the use of the terms "countermeasures" and "“counter- countermeasures" on the U.S. Muni- tions List (22 C.F.R., section 121.01 Category XI(a)) satisfy the statutory requirement of the Arms Export Control Act (22 U.S.C., section 2778) that the President designate "items" for Criminal Liability purposes? 2. Does the U.S. Munitions List designation "countermeasures" and "“counter-countermeasures" constitute an unconstitutional exercise by the President of a delegated power or an invalid sub-delegation to the executive administration so as to violate the defendants’ due process’ rights in the indictment at bar? 3. Would men of common intelligence understand the meaning of an indictment charging a conspiracy to arrange for the purchase of defense articles where the designation is identified as “active and passive countermeasures and counter-countermeasures," thus being impermissively overbroad and vague? TABLE OF CONTENTS PAGE # QUESTIONS PRESENTED FOR REVIEW........i. TABLE OF CITATIONS.......eeeeeeeiV,V,Vi TABLE OF APPENDIX CONTENTS..........vii POPRUUN, «cs das sce siaeieeieeeeeeeee STATEMENT OF GROUNDS ON WHICH JURIS- DICTION Is 4 4 rae ee ee ee PERTINENT STATUTES, REGULATIONS AND CONSTITUTIONAL PROVISIONS.....cce022224 STATEMENT OF THE CASE A. FREPORRSELOR. cc cicnccascerevesusene B. Concise Statement of Facts.......7 REASONS WHY THE WRIT SHOULD BE Gs 0066 00k eee 66060 886 eee eee i Pr re en rr ree: POINT LTecccccccccccccccssccscccccssesekd THE "COUNTERMEASURES" DESIGNATION OF THE U.S. MUNITIONS LIST DOES NOT FORM THE BASIS FOR CRIMINAL LIABIL- alia ITY BECAUSE “COUNTERMEASURES” IS NOT AN “ITEM AND THE PRESIDENT IS RE QUIRED TO LIST ITEMS CONSISTENT WITH AECA, 22 U.S.C., SECTION 2778 DOTNET Ele ccccccccccccccscccccccccccsedl THE REGULATION DESIGNATION VIOLATES THE DELEGATION AND SUBDELEGATION DOCTRINES AND VIOLATES DUE PROCESS. POINT IILecccccsccccccesescssccseeee cK A MAN OF COMMON INTELLIGENCE WOULD NOT UNDERSTAND THE DESIGNATION "COUNTERMEASURES" AS ENCOMPASSING TWTAs, THEREFORE THE INDICTMENT SHOULD BE DISMISSED. BO, gcc cc cecececensesecese wees 4S -iii- TABLE OF CITATIONS CASES CITED Aaron v. SEC 446 U.S. 680 (1980) PAGE # 32 Adamo Wrecking Co. v. United 19,34,35 States 434 U.S. 275 (1978) Caminetti v. United States 17 242 U.S. 470 (1917) Commissioner v. Glenshaw Glass Co. 31 348 U.S. 426 (1955) The Conqueror “ 166 U.S. 110 (1896) Continental Products Safety 17 Commission v. GTE Sylvania, Inc. 447 U.S. 102 (1980) Escondido Mut. Water Co. v. 36 LaJolla Indians a 80 L.Ed. 2d 753 (1984) Houghton v. Payne 36 194 U.S. 88 (1904) Knickerbocher Ice Co. v. Stewart 31 253 U.S. 149 (1920) Lanzetta v. New Jersey 15,18,46 306 U.S. 451 (1939) Nixon v. Fitzgerald 4 457 U.S. 731 (1982) -iv- Power Reactor Co. v. International 32 Union of Electrical Radio & Workers 367 U.S. 396 (1961) Reiter v. Sonotone Corporation 16 442 U.S. 330 (1979) SEC v. Sloan 31 436 U.S. 103 (1978) Skidmore v. Swift & Co. 35 323 U.S. 134 (1944) Smith v. Goguen 46,47 4i5 u.S. 566 (1974) United States v. General Motors 4 Corp. 323 U.S. 373 United States v. Laub 36 385 u.sS. 475 (1967) U.S. v. Swarovski 45 592 F.2d. 131 (2d Cir. 1979) STATUTES 3 usc 301 39 22 usc 1934 30 22 USC Section 2776 21,44 22 uSC Section 2778 3,4,7,10,15,22 23,25,27,28,29 33,37,41,42 22 uSC Section 2794(7) 4,23 -V=- 28 USC Section 1254(1) 4 40 USC App Section 2416(b) 50 590 USC App Section 2401 24 50 USC App Section 2404(d) 5,25 90 USC App Section 2405(k) 5,25 90 USC App Section 2416 (b) 5,24 22 CFR Section 121.01 7 15 CFR Section 4516B 26 22 CFR Section 121.01 4,7,38 22 CFR Section 127 5 OTHER AUTHORITIES l Davis, Administrative Law Treatise 2nd Ed. Section 3:1] 41 Section 3.15 41 Section 3.16 43 Dictionary of Military and Associated Terms 18 1982 U.S. Code Cong. & Admin. News 22 Vol. 3, p 2496 1976 U.S. Code Cong. & Admin. News 21,23 p. 1378, 1415 -Vi- “TABLE OF APPENDIX CONTENTS APPENDIX I - Opinion - U.S. v. Zheng, 768 F. 2d 518 (CA 3 1985) la Third Circuit Judgment deted July 19, 1985 15a Third Circuit Order denying rehearing, dated | August 27, 1985 17a APPENDIX II - Opinion -- U.S. v. Zheng, 590 F.Supp 274 (DNJ, J. Sarokin, July 26, 1984) 19a APPENDIX III - Opinion - DNJ -- J. Sarokin, May 23, 1984 59a APPENDIX IV - Opinion - DNJ -- J. Sarokin, October 4, 1984 113a APPENDIX V - Criminal Complaint 137a APPENDIX VI - Indictment - February 25, 1984 144a APPENDIX VII - Government's affidavit of Nelson J. Wilson filed August 9, 1984 150a APPENDIX VIII - 22 USC, Section 2778 153a 22 USC, Section 2794 157a 50 USC App, Section 2416 160a -vii- CONTENTS CONT'D 50 USC App, Section 2404 1628 50 USC App, Section 2405 167a Fifth Amendment to the Constitution 169a 22 C.F.R. Sec. 121.0! 1708 22 C.F.R. Sec. 127.0] 210a -Vili- INTENTIONALLY PRINTED AS A BLANK PAGE IN THE SUPREME COURT OF THE UNITED STATES October Term, 1985 DA-CHUNG ZHENG and KUANG-SHIN LIN Petitioners UNITED STATES OF AMERICA Respondent PETITION FOR A WRIT OF CERTI-: ORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. Petitioners Da-Chuan zheng and Kuang-Shin Lin* pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals *Pursuant to Supreme Court Rule 21.1(b) the other co-defendants below were David for the Third Circuit which reversed the District Court's dismissal of the indictment. STATEMENT OF GROUNDS ON WHICH JURISDICTION Is I _INVOKED. The petitioners Da-Chuan Zheng and Kuang-Shin Lin seek a writ of certiorari to review the Circuit Court's judgment (A 15a _)* rendered in accordance with an opinion of the Third Circuit (A _la_) on July 19, 1985; the petition for rehearing was denied on August 27, 1985. The judgment reversed the District Court's dismissal of an indictment charging conspiracy by the defendants to violate che Arms Export Control Act (AECA), 22 U.$.Ce, Section 2778 (1982) by arranging for the unlawful purchase and export of "defense articles" included « } = *A refers to the Appendix to this Petition annexed, on the U.S. Munitions List, 22 C.F.R., Section 121.01 Category XI(a) (1984). The Supreme Court has juris- diction to review the Sheet below by writ of certiorari pursuant to 28 U.S.C., Section 1254(1). See, The Conqueror, 166 U.S. 110, 113-114 (1896); U.S. v. General Motors Corp., 323 U.S. 373,377 (1944); Nixon v. Fitzgerald, 457 U.S. 731,743 (1982). PERTINENT STATUTES, __REGULA- TIONS AND CONSTITUTIONAL PROVISIONS The following statutes and regu- lations set forth in the appendix are pertinent: 22 UcBeCc oe Section 2778; 22 U.S.C., Section areetews: 6 «68G.hCUG. B.C. a 4 - App. Section 2416(b); 50 U.S.C. App. Section 2404 (d); 50 U.S.C. App. Section 2405(k); 22 C.F.R. Section 121.01, category XI; 22 C.F.R. Section 127. The following constitutional provisions set forth in the appendix are pertinent: The Fifth Amendment to the United States Constitution. STATEMENT OF THE CASE A. Introduction Petitioners seek review of a Circuit Court's reversal of a district court dismissal of the indictment below. The AECA authorized the President to designate the "“items" which will constitute the Munitions — List. The District Court held that a designation "countermeasures and counter countermeasures" is not a designation of an item but of a "category" and therefore impermissible. The Third Circuit reversal sanctions the exercise of executive power in creating item designations on the U.S. Munitions Control List, which has the effect of insulating the List from congressionai control and review. The initiation of criminal prosecutions, as at bar, based on the designation which is a most arbitrary and all encompassing trade proscription, is antithetical to constitutional safeguards in Criminal proceedings. The potential for abuse is accomplished by generic indictments involving vague categories of goods on the Executive's list, inconsistent with the a 6 « congressional mandate of the ABKVA (22 U.S.C. Section 2778) that the List (C.F.R. Section 121.01 et seq.) be comprised of items as opposed to categories. B. Concise Statement of Facts Defendants were indicted on February 23, 1984, in a single-count conspiracy to violate Section 38 of AECA, 22 U.S.C., Section 2778, for allegediy arranging for the unlicensed export of “defense articles" purportedly on the U.S. Munitions List. 22 C.F.R., Section 121.01 et seg. (Al70a, 175a-178a). The indictment did not directly allege what “defense articles” were involved, but ther? was a reference in a non-charging portion of the indictment to certain "travelling wave tube amplifiers" and » 9 « “travelling wave tube amplifier chains" (collectively "“TWTAs") (A (147a para. 5). TWTAsS do not appear on the List. The government contends that TWTAS are encompassed by a List reference to "active and passive countermeasures and counter countermeasures" (hereinafter "countermeasures"). However, there is no reference to countermeasures in the indictment (A 144a )e nor in the underlying complaint (A 137a)- The complaint rather suggests that the TWTAS were "“radar-jamming" equipment, although there is no reference to “radar-jamming equipment" either on the List or in the indictment. The only item proffered by the government to support its contention that the TWTAs involved were radar-jamming equipment is an affidavit of a government munitions expert (A 150a), which does not state that the TWTAs involved here are used for radar-jamming, and goes on to state that most TWTAS have commercial purposes and “are not designed to Function, and cannot effectively be utilized, as military countermeasures." Defendants did not concede that the TWTAs' here could be used for radar-jamming purposes. Defendants moved below for the dismissal of the indictment, raising claims of insufficiency of the indictment, vagueness’ of the List "countermeasures" reference, and improper delegation and subdelegation of legislative authority to the Executive, along with other grounds (See Opinion I, Aif2a)- The trial — —— court reserved on the vagueness challenge pending trial (‘a7vjiair+ and denied defendants' other motions (A100aq) « Defendants then filed a separate motion to dismiss on the' grounds that the List “countermeasures” designation was invalid under the enabling statute, 22 U.S.C., Section 2778, which requires that the List be composed of "items." The trial court Jranted this motion, and dismissed the indictment (Al9%a), holding that the Gesignation “countermeasures” was too broad to constitute an “item" within the meaning and Congressional intent of Section 2778. The Government appealed the Dis- trict Court's determination that the "countermeasures" designation identi- fied by the Government to be the « 30 « applicable "item" on the List encompassed MTWTAs. In reviewing the dismissal of the indictment the Court neld that the term “items" and “articles” were used interchangeably and that cCongress' “" ... minor word substitution did not signal a substantial but unarticulated shift in Congressional policy ..." so as to require a more specific designation of items on the List. The Circuit Court further held Meee that ‘items' (does not) demand more precision than that discerned by the President" (Al2a). By permitting countermeasures to be "items", it intended to extend “the full meaning" (Ailja) of the statute even in the Criminal context. The Court found “we are not satisfied that » Al « in the military electronics field ‘countermeasures’ does not mean radar-jamming devices and hence is as much an item as a nuclear propulsion plant" (A Ilda). It further relied upon the A.E.C.A. savings clause as a basis for the predecessor Munitions List being intended by Congress to continue in effect despite the new act. REASONS WHY THE WRIT SHOULD BE GRANTED. (1) Where a national policy Statute such as’ the AECA is construed so as to permit an unbridled scope of administrative control in the Executive branch of government in the designation of export items, there is a reai potential for abuse, both in the Criminal enforcement and in the administrative functioning of the oe 229 « Legislative policy. (2) The AECA specifically requires that the President designate items on the U.S. Munitions List. In the indictment at bar, defendants were charged with conspiracy to violate a Section which has been designated “active and passive countermeasures and counter countermeasures." The indictment refers to TWTAs which are not onthe List. Since the President has not designated an "item" encompassed by the List. The indictment must be dismissed. (3) Congress in enacting the AECA in 1976 intended to require particularization of the List of controlled military exports. It changed the word “article” to the word « 13 « i "item" and, by adding periodic review of "items", as well as requiring congressional reports of the military exports, intended to more closely monitor military items. The Third Circuit Court's opinion dilutes the legislative control and correspondingly enhances the executive power beyond the legislative intent. There can be no indictable crime for the conspiracy charged. (4) The Executive, in delegating or subdelegating the composition of the List without standards to guide the exercise of discretionary power, resulted in this particular case in a failure of itemization which requires this Court's intervention to prevent Sanctioning of arbitrary exercise of a delegated power. s 16 « (5) Due process requires that men of common intelligence be able to understand a charge against them (Lanzetta v. New Jersey, 306 U.S. 451,453 (1939)). The assertion of Criminal Liability based upon a charge of conspiring to export an “item" designated as "“countermeasures"™ does not comport with that requirement. —— i THE “COUNTERMEASURES” DESIG- NATION OF THE U.S. MUNITIONS LIST DOES NOT FORM THE BASIS FOR __CRIMINAL LIABILITY BECAUSE “COUNTERMEASURES” IS NOT AN “ITEM“ AND THE —_——_—_—_—_- oe ITEMS CONSISTENT WITH AECA, 22 U.S.C., SECTION 2778 A. The Court of Appeals Decision Is Contrary To The Plain Meaning of the AECA and to Its Context And Underlying Purposes. e 18 « _ 1. Plain Meaning The Court of Appeals was quite direct in its rejection of the piain meaning of the word "items", disregarding the "common sense" approach advocated by the District Court (A26a-28a)+- The court dismissed the statutory language as a “minor word substitution” intended as a mere Sylistic convenience, and at the same time applied a “relativistic” analysis which rendered the word essentially meaningless. The Circuit Court did not comply with this Court's mandate that congressional language must be the starting point, Reiter v. _Sonotone Corporation, 442 U.S. 330,337 (1979) and apply the plain meaning expressed in the legislation, Continental | Products Safety Commission v. GTE Sylvania, _Inc., 447 U.S. 102,108 (1980). The District Court properly concl uded that the President was authorized to designate "items" on the List and, using “common sense” (A 2Xa ) and with reference to dictionary definitions, held that "“' (c)ounter- measures’ is Simply too broad a | description tec be considered an ‘item'" | (A 28a ). See, Caminetti_v. United | States, 242 U.S. 470, 485-486 (1917) (presumption that "statutory words are eee to be used in their ordinary and usual sense, and with the meaning common] y attributed to them.") | Lexicographic sources such =s dictionaries are a permissible, if not preferred, source. See e.g., Lanzetta » 29 « v. New Jersey, 306 U.S. 451, 454-456 (1933), where the Court reversed a guilty verdict under a New Jersey law making association with a "gang" a Criminal offense. Even if the word "countermeasures" is considered a “term of art", (Alda) it is far too broad a category to be an item. Thus, countermeasures is defined in Dept. of Defense Dictionary of Military and Associated Terms (with the NATO, CENTO and TADB Glossaries, Inc) (The Joint Chiefs of Staff, Washington, D.C. (June l, 1979)) as “That form of military science which by the employment of devices and/or techniques has as its objective the impairment of the operational effectiveness of enemy activity. See also electronic warfare". The same resource in defining electronic warfare has a a th « sub-division "electronic counter- measures" which is further subdivided into areas of “electronic jamming" and "electronic deception". The Circuit Court, by permitting the "countermeasures" designation as the oasis of a criminal prosecution vitiated the meaning of the statutory declaration of AECA. The admonition im Adamo Wrecking Co. v. United States, 434 U.S. —_——_— = 275,283 (1978) is particularly pertinent. In Adamo, the Court upheld the dismissal of an indictment grounded on a purported violation of a regulation designating as an “emission Standard" that which really was not such a standard at all. The Court stated in a sentence in which the word "item" could easily be substituted here > 8 « foc “emission standard": ese Congress intended, within broad limits that ‘emission standards' be regulations of a certain type, and eee did not empower the administrator, after the manner of Humpty Dumpty in Through the Looking Glass, to make a regulation an ‘emission standard' by his mere designation.” The Court of Appeals concluded that there was not “even a clue from Congress on how much precision was to be used in preparing the Munitions List coca” ‘GR Be Fe There is no doubt but that the central purpose behind the enactment of AECA in 1976 was to "restructure U.S. arms sales policies to provide for increased Congressional Supervision and review of all aspects of the foreign military sales program." House Report (International Relations » 26 = Committee) No. 94-1144, May 14, 1976 (94th Congress, 2d Session), quoted in 1976 U.S. Code Cong. and Admin. News 1378, 1385. The Act reflects Congress’ "strong desire to provide for increased congressional participation in the formulation of U.S. military assistance and sales policies and prograns.” Id. at 1387. One way Congress sought to insure its role was to require the President to report in detail on the scope of his export controls 22 U.S.C., Section 2776. Specific List itemization does not merely "facilitate" this reporting as the Court of Appeals obser ed: the reporting requirements of the AECA depend on accurate and specific itemization. Section 2776(a) (4), for example, requires information for all oa 22 « export licenses with respect to each "item" of comnercially sold military equipment. Therefore, it is evident that the reporting requirements presuppose a particularized List, thus effectuating congressional oversight. In 1982, Congress amended AECA, 22 U.S.C., Section 2778(£) to further insure a tightly controlied List. That section requires that the President "periodically review the items" on the List to see “what items, if any" should be removed, and report such review to Congress. The legislative history to this section indicates that the congressional conferees "expect (ed) that the List should be reviewed at least annually." 1982 U.S. Code Cong. & Admin. News (Vol. 3), p. 2496. The meaning of the itemization » 2 = terminology used inthe 1976 AECA is Clarified by reference to 22 U.S.C. section 2794(7) which defines "defense articles and defense services," with respect to commercial exports, as "those items designated by the President" pursuant to 22 U.S.C. section 2778(a)(1). The House Report explains that "For purposes of commercial export control under this act, it is the nature of the item which determines whether it is included in the term ‘defense articles and defense services' and not its intended use as is the case for purposes of government to government sales." House Report (International Relations Committee) No. 94-1144 May 14, 1976 (94th Congress 2d Session) quoted in, 1976 U.S. Code Cong. and.Admin. News 1378, 1415. This comment clearly shows Congress’ concern for specificity when »~ 23 @ it comes to commercial export controls. "Countermeasures" as a target of commercial export controls, plainly does not coincide with this legislative mandate. See also, the Export Administration Act ("EEA"), 50 U.S.C. App Section 2401 et seg.. Tne EAA as a corollary export control statute should be relied upon for construction purposes. First, both statutes restrict the unlicensed movement of goods from this country abroad. Second, the EAA explicitly provides far coordination between the EAA and AECA (50 U.S.C. App Section 2416(b)). Third, the AECA was amended so that the President's enforcement powers under that act are specifically derived from his power under the EAA, and are “subject to the same terms and - 24 - conditions as are applicable to his EAA powers." (In fact, the AECA post-dates the EAA of 1969, and Section 2778 (e) was added to insure that exercise of powers under the AECA would De in conformity with the EAA). The EAA contains a corresponding provision, 50 U.S.C. App Section 2416(b). The EAA encompasses the list of "Military Critical Technologies", (MCTL) which is a part of the Commodity Control List (CCL), Section 2404(d) (5). Thus, Section 2404(d) (3) requires that this MCTL "be sufficiently specific to guide the determination of any official exercising export licensing responsidilities ...". Similarly, 50 U.S.C. App Section 2405(k) requires that “goods or technology” subject to Foreign policy controls be “clearly o 6 identified" when placed on the CCL. Indeed, both the CCL proper and its constituent MCTL contain Significantly more specific Listings, including the type of materials apparently involved in the case. See, CCL, 15 C.F.R. Section 4516B: (Communications, counter- measures equipment eee including but not limited to special purpose broadband monitoring receivers with detection capabilities; optical and video detectors; microphone detectors; non- Linear junction detectors; telephone analyzers; and parts and accessories, n.e.s. See, Part A, Section 9.5 of the MCTL DoD Ad-Al46 998, October 1984, opp. 9-10 to 9-ll: Communications Counter- measures Technology as follows: lcontains twelve separate descriptive titles including e.g., compressive receivers using dispersive filters and convolvers with » 26 Sidelobes better than 20d transmitter exciters employing synthesizers and modulation techniques, and automatic antennae tuners cabable of tuning rates exceeding 30MHz/sec} Also, if an “item” is removed from the List, considerations must be given to whether controls should be imposed under the EAA. 22, U.S.C. Section 2778(£). The District Court recognized this "Language coordination,” (A. 35a), and was justified in looking to the legislative history of the EAA to give meaning to the "items" requirement in terms of federal export policy under the Arms Act. What emerges from this Legislative context is the Clear notion that Congress wanted to focus the export control mechanism, thereby providing enhanced notice to exporters of = 27 « ee precisely what items require licensing. In the words of the District Court, the elmination of uncertainty regarding U.S. export policy was additionally intended to "remove unnecessary barriers to exporting goods which might arise from the chilling effect that necessarily attends less clear regulation.” (A. 13la ) In fact, Section 2778 of the AECA itself, ina new clause introduced in 1976 Simultaneously with enactment of the express itemization reguirement, exhorts the President, in designating items on the List, "to provide foreign policy guidance to persons of the United States involved in the export and import of aGefense articles and services." The itemization requirement is » 26 « Clearly one of the tools Congress used to improve notice to potential arms exporters and thereby facilitate trade. Itemization further promotes a more focused federal export control polcy by forcing regulators who compile the list to examine just exactly where controls are necessary. Indeed, the coordination of federal export policy is reflected in 22 JU.S.C. Section 2778(£) of the AECA which also minimizes uncertainties by requiring the President to periodically review the Munitions List and remove "items" no longer warranting export controls. B. The "Countermeasures" Desig- nation Does Not Have Implicit Congressional Approval and Does Not Constitute An Agency Interpretation Entitled To Any Deference. SE he government has relied heavily » 29 « neni on the fact that the List and its "Countermeasures" entry preexisted the 1976 passage of the AECA with its "items" requirement, and that the repeal of the prior law accompanying such passage included a "savings clause" (AECA Section 212(b), see annotation to 22 U.S.C.A. Section 1934). The Circuit Court said that "Congress was well acquainted with the format of the List and the terminology it employed" (A.1i0a ), but at another that Congress "has never even addressed the contents of the List" (A.ji1a).- —_——— Congress never explicitly or im- plicitly ‘approved of generic category listings such as "countermeasures", nor even examined the List closely at all. The significance and effect of the Savings clause waS not to permit a ~ 5 ESCs lapse in the law before the Executive could act. Congress did not reenact the List as it was contructed. See, e.g., Knickerbocker, Ice Co. V. Stewart, 253 U.S. 149,162(1920). If€ Congress had meant to approve or adopt the existing Munitions List when it passed AECA, it could have expressly done so. It did not. This Court has often held that extreme caution must be exercised before a court would imply, as did the court below, congressional approval of an administrative practice or statutory interpretation based on even a reenactment of the underlying statutes, Commissioner v. Glenshaw Glass Co., 348 U.S. 426,431 (1955). Thus, the Court in SEC _v. Sloan, 436 U.S. 103 (1978), in Striking down an =.) a earn unauthorized SEC summary suspension procedure based on a Statutory interpretation, rejected the agency's argument that Congress was aware of the SEC interpretation when it reenacted the pertinent statute. Even though it was clear that the SEC interpretation and practice had been brought to the attention of, and has been "accept (ed)" by a Congressional committee at the time of reenactment (at 120), the Court held that this was "scarcely the sort of congressional approval" required for inferring congressional validation of an otherwise Statutorily proscribed administrative practice. Accord, Aaron v. SEC, 446 U.S. 680,694 n.11 (1980). —— See also, Power Reactor Developmentr Co. v.- _ International Union __of Electrical, Radio and Machine Workers, 367 U.S. 396,409 (1961) (it is "shaky a 39 «= business to attribute significance to the inaction of Congress.") It is by no means clear that the "countermeasures" category constituted a valid administrative designation of particular "arms, ammunition and implements of war", even under the predecessor Mutual Security Act, which did not require that the Executive prepare a discrete list of munitions. The reported decisions interpreting that Act do not address the "countermeasures" listing. Section 2778(a) (1) of the AECA does affirmatively envision and require that the President designate "items" which "so designated shall constitute" the List. This language is prospective, anticipating future executive action. 2. Absence of Reasoned Agency Interpretation The Court of Appeals' premise that "countermeasures" constitutes a de facto “interpretation" of the enabling Statute's itemization requirement is improper in the context of a criminal proceeding. It is to such “differing agency interpretatio, , says the court, that the “general understanding" of what the word "item" means "must yield" (A.lla_). In fact, there is no “agency interpretation" here. The reference to "full meaning" as encompassing " ... expansive and sometimes even bizarre meanings ..." may not constitutionally be applied to enforcement of a criminal Statute, Adamo Wrecking Co. v. U.S., 434 U.S. supra at 285. It is undisputed that the e $4 "countermeasures" designation antedates passage of the AECA by many years. Nothing has been suggested indicating that the administrator even addressed the question whether "countermeasures", Or indeed any other List designation, is Or is not an "item". Absent are the established factors weighing in favor oF judicial deference, Skidmore v. Swift & Co., 323 U.S. 134,140 (1944). As the Court noted in Adamo Wrecking Co. Vv. United States, supra, 43 U.S. at 287 n.5, “the mere promulgation of a regulation, without a concommitant exegesis of the statutory authority for doing so, obviously lacks ‘power to persuade' as to the existence of such authority." "Countermeasures" does not con- stitute a contemporaneous’ interpre- — 2 tation of the AECA. A custom of the administrative department, however long construed by successive officers, must yield to the positive language of the statute." Houghton v. Payne, 194 U.S. 88, 99-100 (1904). See also, Escondido Mut. Water Co. v. LaJolla Indians, os - » 80 L.Bad. 24 753, 765 n.22 (1984). As the District Court below ultimately observed: "Nor does any degree of deference allow the court to reach the conclusions that the term '‘contermeasures' constitutes an "item'". (A 5*%a). Any doubt, assuming there is any, has to. be resolved in favor of defendants, not the government. See also, United States v. Laub, 385 U.S. 475,480, 486-487 (1967) (this Court affirmed the dismissal of an indictment for violation of an unauthorized regulation holding that » $6 = the enabling act had to be “narrowly construed" in the criminal context, and that "(c)rimes are not to be created by inference"). The District Court properly resolved any doubt in interpreting the itemization require- ment in favor of defendant. THE REGULATION DESIGNATION VIOLATES THE DELEGATION AND SUBDELEGATION DOCTRINES AND VIOLATES DUE PROCESS. (a) INTRODUCTORY STATEMENT AECA, 22 U.S.C. section 2778 (1982) requires the President to designate "items" to be included in a list of defense articles whose sale and exportation are restricted. Section 2778 (£) requires the President to periodically review the "items" on the list to determine “what items, if any," » 37 «= no longer warrant controls. He is to repo. such review to appropriate bodies of both houses, such report to be submitted at least thirty days "before any item is removed" from the list, and shall describe the nature of the controls to be imposed "on that item" under the EAA Act of 1979. When the list was promulgated, 22 C.F.R. section 121.01 (1984), Category XI, Subsection (a) read in part: Electronic Equipment .-. including but not limited to tne rollowing items: "(1) ... active and passive counter- measures and counter-countermeasures nee” 6 The word "“item" is not defined in the Statute nor in the regulations. The issue is whether the President by calling "active and passive countermeasures and counter- « 26 « countermeasures" an “item" makes them such in the context of the Statute and, if so, whether such a delegation and Ssubdelegation (the President didn't create the list himself, nor need he, 3 U.S.C. 301) contravenes due process in the framework of the instant criminal indictment. Though raised below, this issue was not the basis of the trial court's dismissal of the indictment; nor was it considered by the Third Circuit in reversing the trial Court. (6b) THE CONSTITUTIONAL DOCTRINES OF DELEGATION AND SUBDELEGATION. Professor Davis summarized decades of federal due process delegation law in one brief paragraph by saying: "Congress may and does law- fully delegate legislative power to administrative agencies. The Supreme Court nas said many times -- more = 99 « than a hundred -- that Standards are required, but it has often held that Standards are not required. The Supreme Court throughout the twentieth century has upheld congressional delegations without Standards, and except for two 1935 decisions, it has never held unconst)j tutional any delegation to an administrative agency. Since 1935 the nondelegation doctrine has had no reality in the holdings, although remnant of the doctrine persist in judicial verbiage. The law allowing delegation of rulemaking power to administrative agencies is clear law, sound law, and necessary law. It is sure to continue, for the kind of government we have developed could not operate without it. But the law allowing delegation of power to exercise unguided discretion in individual cases is in need of reexamination. The nondelegation doctrine, as proposed in section 3:15, can and should be given new life by altering it to require either statutory or admin- istrative standards to euide the exercise ot = 40 « discretionary power in individual cases. The purpose of a reconstituted nondelegation doctrine should be to protect private parties against injustice that grows out of unnecessary and uncontrolled discretionary power. See, Section 3:15 below. l Davis, Administrative Law ae ae Ke eer Treatise, 2nd Ed., section 3:1, p.149. His concluding reference to section 3:15 at p. 206, et seq. transforms the non-delegation doctrine into a meaningful proscription of arbitrary discretionary conduct by administrative personnel. Due process protection shifts from "“standards" to administrative safeguards. As applied at bar, the broad Standards of section 2778, that is the “furtherance of world peace" and the Furtherance of the "security and =» @h « foreign policy of the United States” becomes meaningful and controllable, notwithstanding the broad delegation to the President of the power to create the list -- so long as the list is one of “designated” “items" (The items so designated shall constitute the U.S. Munitions List, section 2778(a) (1)) rather than broad categories which can be interpreted, construed and enforced by the agency in its own arbitrary or abusive way. There is neither Statutory nor administrative safeguards in designations of “categories". There is no protection against bias or favoritism or unfairness in the administration of the export list if one must look, item by item, to the administrators to see if the item is one in the category of “active and passive countermeasures and s 42 « counter-countermeasures". In short, those authorities cited in Davis" treatise support the need for certiorari in the case at bar. This is uniquely so because Criminal (as distinguished from the more usual administrative) consequences flow from the acceptance of the Third Circuit's conclusion that the term "item" suffices to control the subject enumeration in the list. This case combines the delegation concept with the unique subdelegation instance and there is a direct crossing of the separation of powers. Though the crossover, per se, is now well accepted, Davis, supra, section 3:16, the very broad scope of the AECA, where there is a crossover to the President, warrants assurance that it is » 63 « OC accompanied by adequate controls on the subsequent administrative behavior. This need for control (item means item, not category) is found in section (f) and parallels the requirements in section 2776(a) (4) (A),(B) and (C). er Oc. 8 III A MAN OF COMMON INTELLIGENCE WOULD NOT UNDERSTAND THE DESIGNATION "COUNTERMEASURES" AS ENCOMPASSING TWTAS, THEREFORE THE INDICTMENT SHOULD BE DISMISSED. The indictment at bar charges a conspiracy to violate AECA by arranging for the exportation of defense articles which are particularized in a non-charging part of the indictment as TWTAS. TWTAS do not appear on the list. The Circuit Court and _ the Trial » £6 « Court indicated in dicta with respect to vagueness "sae it could not determine before trial ‘whether or not wave tube amplifiers are reasonably encompassed within the term ‘countermeasure’ in the eyes of the average arms exporter.' The district court's ruling is consistent with U.S. v. Swarovski, 592 F. 2d 131 (2d Cir. 1979). In ruling on a Similar challenge to the Munitions List, the court said: 'We are dealing here with a regulation of limited scope aimed at a small and relatively sophisticated group of persons.'" (A Sa ) The designation "countermeasures" identified by the Government as’ the "items" for which the defendants are deing subjected to criminal Liability is in the same class as the "gang" - £6 = found impermissible as a classification for criminal liability in Lanzetta v. New Jersey, supra or the contemptuous treatment of the United States flag in Smith v. Goguen, 415 U.S. 566 (1974). This court in Goguen stated: "Tne statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the Kinds of non-ceremonial treaetment that are criminal and those that are not. Due process requires that all ‘be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451,453, 83 L.Ed 888, 59 S.Ct. 618 (1939) and that ‘men of common intellgience' not be forced to guess at the meaning of the criminal law. Connally Ve _ General Construction Co., 269 U.S. 385,391, 70 L.Ed 322, 46 S.Ct. Ase (2926)". SiS 0.8. at 574. The Court goes on to criticize the "standardless sweep" of the statutory ~ £6 = language noting "legislators may not so abdicate their responsibilities for setting the standards of criminal law" (415 U.S. at 575). It is suggested at bar in the language of Goguen, supra, that: "Where inherently vague stat- utory Language permits such selective law enforcement, there is a denial of due process", 415 U.S. at 576. It should not matter for enforcement purposes whether the legislature intended the prohibition of conduct against a select group or not; the law must be applied un ‘ormly. CONCLUSION For the foregoing reasons it is respectfully submitted that the writ of certiori should be granted. Respectfully submitted MARGULIES, MARGULIES & WIND A Professional Corporation = ; \ ( / / F. > ie. ‘ / ae ARS ie ROBINSON, WAYNE, LEVIN, RICCIO & LA SALA By Maurice C. a ee Of Counsel SEYMOUR MARGULIES JOHN B. LIVELLI ROBERT E. MARGULIES On The Petition October 25, 1985 « &48 « APPENDIX la APPENDIX I UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 84-5693 UNITED STATES OF AMERICA, Appellant Vv. DA-CHUAN ZHENG, KUANG-SHIN LIN, JING-LI ZHANG, DAVID TSAI, ALLEN YEUNG, Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal Nos. 84-00064-01/2/3/4/5) Argued May 1, 1985 Before: SEITZ, WEIS, and ROSENN, Circuit Judges (Filed July 19, 1985) Robert J. Fettweis, Esquire (ARGUED) Assistant U.S. Attorney W. Hunt Dumont, Esquire United States Attorney Federal Building 970 Broad Street Newark, New Jersey 07102 Attorneys for Appellant 2a 2 Robert E. Margulies, Esquire (ARGUED) MARGULIES, MARGULIES & WIND 921 Bergen Avenue Jersey City, New Jersey 07306 Attorney for Appellee Kuang-Shin Lin John B. Livelli, Esquire (ARGUED) ROBINSON, WAYNE, LEVIN, RICCIO & LA SALA Gateway One Newark, New Jersey 07102 Attorney for Appellee Da-Chuan Zheng Susan V. Tipograph, Esquire (ARGUED) 120 Duane Street, Suite 400 New York, New York 10007 Attorney fo. Appellee Jing-Li Zhang OPINION OF THE COURT WEIS, Circuit Judge. The government contends that in dismissing an indictment the district court adopted an 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 a one count indictment, defendants were charged with having conspired to violate the Arms Export Control Act, 22 U.S.C. 8 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 3a 3 that the listing cited by the government did not have the specificity required by the Act, the district court dismissed the indictment.' According to 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 solid without an export license and further that he could not obtain the necessary licensing.” Defendants 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 1. The district court opinion is published at 590 F. Supp. 274 (D.N.J. 1984). 4a 4 “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 or detail’ itself.” In the court's view, countermeasures “clearly is not an ‘item’ but a category or classification which includes a variety of items.” The court determined that Congress had used the word “item” to obtain 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 5a 5 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, defendants did not argue that the statute was vague on its face, but rather that “countermeasures” was too broad a term. The government responded that to anyone dealing in these devices, the designation is unambiguous. The court declined to rule “absent the resolution of certain disputed facts,” commenting that it could not determine before trial “whether or not wave tube amplifiers are reasonably encompassed within the term countermeasure in the eyes of the average arms exporter.” The district court's ruling is consistent with United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979). In ruling on a similar challenge to the Munitions List the court said: “We are dealing here with a regulation of limited scope aimed at a small and relatively sophisticated group of persons.” 592 F.2d at 133. In passing on the defendants’ second motion, the court did not revise its earlier vagueness decision, and consequently, that issue is not before us. We must assume in the present posture of the case that the statute is not unconstitutionally vague in the sense that it failed to give defendants notice that their conduct was illegal. For purposes of this appeal, we also assume without deciding that “Travelling Wave Tube Amplifiers” are “countermeasures. ™ The district court, however, did change its position on the defendants’ assertion that “countermeasures” as designated in the Munitions List did not constitute an “item.” In its earlier opinion, the court had said, “This may be true. However, unless 6a 6 such generic categories are under the statute vague. such violation does not comprise a ground for dismissal of the indictment.” At the time of the first motion, the court did not distinguish between the generic category contention and the vagueness defense. In its opinion on the second motion, the court did separate the two issues. It is to the question of statutory compliance that we now turn. A brief history of the Munitions List ts important in resolving the question presented here. Following World War II and continuing to the present time. Congress enacted a series of statutes providing economic and military aid to foreign countries, as well as regulating exports and imports of military and nava) equipment. Some provisions pertain to country- to-country sales, others only to commercial transactions. Most of the legislation has no direct bearing on the issues presented in this case but only serves to establish the framework in which the few relevant provisions must be placed. The Mutual Security Act of 1954, 65 Stat. 832. marked the beginnings of the United States Munitions List. Section 414 of that Act entitled “Munitions Control” authorized the President to control the commercial import and export of “arms, ammunition. and articles of war.” To implement the legislation, the President was empowered to “designate those articles which shall be considered as arms, ammunition, and implements of war, including technical data relating thereto, for purposes of this section.” 68 Stat. 848. In 1968, Congress enacted the Foreign Military Sales Act, 82 Stat. 1320, requiring. inter alia, that the Secretary of State report all exports “of significant defense articles on the United States munitions list.” 82 Stat. 1326. Although the reporting requirement was new. Congress expressly disclaimed any intention 7a 7 to affect § 414 of the 1954 Act. 82 Stat. 1326. Also, it should be noted that throughout the 1968 Act, Congress used the term “defense articles and defense services” instead of “arms, ammunition, and implements of war.” See 82 Stat. 1322-25. The Foreign Military Sales Act in turn was revised by the Arms Export Control Act of 1976, 90 Stat. 729, the legislation underlying the indictment in the case at hand. Section 414 of the Mutual Security Act of 1954 was repealed, 90 Stat. 745, but the President's authority to control commercial imports and exports through the use of the Munitions List was re-enacted as § 38. 90 Stat. 744, with some changes in the statutory language. The President was authorized to “designate those items which shall be considered as defense articles and defense services ... and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.” 90 Stat. 744, currently codified at 22 U.S.C. § 2778(a) (1982). The Act does not define “items” but does define “defense articles and defense services.” For purposes of “commercial exports subject to the provisions of § 38 of this Act,” 22 U.S.C. § 2778. the term “defense articles and defense services” means “those items designated by the President pursuant to subsection (a)(1) of {8 38)." 90 Stat. 747. codified 22 U.S.C. § 2794(7) (1982). The revision of the statutory language from “arms, ammunition and implements of war” to “defense articles and defense services” resulted from the terminology used throughout the 1968 Act. A Senate Report commented, “This change is merely intended to conform section 38 to the style of the other sections of the Act. It is not intended to alter the scope of items subject to export control, or the extent of such control, 8a 8 under the regulations authorized by this Bill.” S. Rep. No. 876, 94th Cong., 2d Sess. 42. 1976 reprinted in Senate Misc. Reports on Public Bills V. Another feature of the Arms Export Controi Act is its express provision for the preservation of existing regulations. “All determinations, authorizations, regulations, ..., and other actions issued ... under section 414 of the Mutual Security Act of 1954 shal! continue in full force and effect until modified, revoked, or suspended by appropriate authority.” 90 Stat. 745.7 Thus, the existing Munitions List was to continue in effect. At the time of the events described in the indictment, the List began by stating. “the following articles are hereby designated as arms, ammunition, and implements of war.’ The List is organized into 22 “categories,” which are designated by roman numerals. Important to the case at hand is “Category XI--Military and Space Electronics.” Subsection (a) reads in part, “Electronic equipment. . . including but not limited to the following items: (emphasis added) (1) Underwater sound equipment including long towed arrays ... search, acquisition. tracking, moving target indication and imaging radar system; active and passive counter- 2. The authority to designate the materials for inclusion on the Munitions List was delegated to the Secretary of State in 1954. see Exec. Order No. 10575. 3 C.F.R.. 1954-1958 Comp.. p. 213. 214, and this practice has continued. Exec. Order No. 11958. 42 Fed.Reg. 4311 (January !8, 1977). The List. codified at 22 C.F.R. 8 121.01 (1984), has been revised recently. See 49 Fed.Reg. 47682 (December 6. 1984). 3. The recent revision has changed this language to conform to the statutory wording of “defense articles and defense services.” 49 Fed.Reg. at 46687. See also 50 Fed.Reg. 12787 (April 1, 1985) (technical amendments). 9a 9 measures, counter-countermeasures; electronic fuses, identification systems; command, control and communication systems, and regardless of designation, any experimental or developmental electronic equipment specifically designed or modified for military application, or for use with a military system. . . .” (Emphasis added). The word “items” is not defined by the regulations but appears in several places. A footnote to Category V1 discussing the licensing for export of a nuclear propulsion plant refers to it as an “!tem.” Categories XI(d). XII(c), & XVI(b) refer to components, parts, etc. “except such items as are in normal commercial use.” Similar references are made in the other categories, except that at times the word “article” is used instead of “item.” See Categories IV, IX, X, & XIV. Section 121.15 defines “end-items” as assembled systems or equipment requiring only fuel or ammunition for operation and which consist of components. “Components are items which are useful only in conjunction with an end-item.” Section 121.16 states that “items in a partially completed state such as forgings, castings. . . of any of the articles enumerated on the Munitions List ... where they are identifiable as . . . implements of war are considered to be such acticles. . ..” Some observations should be made at this juncture. First, the word “items” appears not only in the enabling statute but in the regulations through which the power conferred has been exercised. Also “articles” and “items” are used almost interchangeably in the Munitions List. Finally, the use of “items” in the regulations was the same before and after 1976 when the Arms Export Control Act substituted “items” for the term “articles” that had appeared in the 1954 Act. Rather than reading the minor word substitution as signalling a substantial but unarticulated shift in 10a 10 congressional fF olicy as did the district court, we think a more modest explanation is the correct one. Congress did not choose the language in a vacuum, but made the change in the course of amending portions of the Mutual Security Act -- a 22-year-old statute which had developed its own appendage of regulations. The Munitions List had been in existence for many years, and Congress referred to it specifically in the Arms Export Control Act in 1976. Consequently, there is no doubt that Congress was well acquainted with the format of the List and the terminology it employed. As noted earlier, the List used the words “articles” and “items” almost interchangeably. It is not surprising then, nor do we consider it significant, that the word “items” was selected to replace “articles” when Congress changed the designation of “arms, ammunition, and implements of war” to “defense articles and defense services.” Adoption of terms used in the regulations or avoidance of repetition in the same sentence are far more likely reasons for substitution of the words than is the announcement of the major policy change, which the district court perceived. The legislative history of the 1976 a-t does not demonstrate any congressional dissatisfaction with the use of the word “item” in the List nor any disagreement with the degree of specificity.‘ The histories of the earlier statutes, the Mutual Security 4. Although subsequent legislative developments are not considered especially probative. we note that in the international Security Act of 1980. 94 Stat. 3137. Congress’ use of “items” ts consistent with the breadth attributed to the term by,ghe President in the Munitions List. Section 108 of the 1980 legislation is captioned “Export Controls on Certain Items on the Munitions List.” It then refers in several instances to “defense articles and defense services on the United States Munitions List.” 94 Stat. 3137. lla 11 Act and the Foreign Military Sales Act, similarly are silent. As the district court found, legislative developments since 1976 express an increased congressional interest in moniioring export controls. The President has been directed to exercise his authority under 8 38 to achieve coordination with export controls authorized under the Export Administration Act of 1979. 50 U.S.C. App. § 2416(b); 22 U.S.C. § 2778(e). But we must observe that although greater precision in the Munitions List would facilitate reporting as well as legislative oversight, Congress has not directed the President to be more particular in designating “defense articles” nor has it even addressed the contents of the List. Accordingly. we do not agree with the district court's assumption that these later legislative developments have great significance in demonstrating the degree of specificity the word “items” connotes. In most situations, the plain language rule is the preferred method of statutory interpretation. Perrin v. United States, 444 U.S. 37, 42 (1979). However, when the subject matter is a technical one and is entrusted to the executive, the general understanding must yield if a differing agency interpretation is reasonable and does not contradict the expressed intent of Congress. Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 52 U.S.L.W. 4845, 4847 (1984); Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978). In the case at hand, the dictionary definition relied on by the district court is of little value because “items” is a relative term whose contours are constructed by context. Only when measured by the remaining particulars in a given classification can one discern whether a designation is an item. Thus, we are left. as was the President, with determining the meaning of “items” as used in the statute without an 12a Wy accompanying list of associated particulars. That being so, reasonable persons could differ on the degree of specificity inherent in the term.* Absent even a clue from Congress on how much precision was to be used in preparing the Munitions List, the President should be given wide latitude in interpreting the delegation of authority and formulating regulations. Implicit in the descriptions used to designate the “defense articles and defense services” is an Executive conclusion that specific nomenclature was not required and that more generic identification was acceptable. Because we can find no contrary suggestion in the legislation or its history, the question is whether the “agency's answer is based on a permissible construction.” Chevron, 52 U.S.L.W. at 4847. Given the limited nature of the inquiry, we cannot say that “items” demands more precision than that discerned by the President. Indeed, as we have already observed, it appears that the more plausible explanation for the Congressional choice of “items” was consistency with the use of that term in the Munitions List. According some deference to the Executive in this circumstance does not interfere with the principle that criminal] statutes are to be narrowly construed. Strict construction does not mean that every federal criminal statute must be given the narrowest possible meaning. See Barrett v. United States, 423 U.S. 212 (1976): United States v. Campos-Serrano, 404 U.S. 293 (1971). Nor does Adamo Wrecking Co. v. United States. 434 U.S. 275. 283 (1978), suggest a contrary 5. It is interesting that the dictionary does contain a much simpler explanation of the word that corresponds to our more detailed exposition. “Item applies chiefly to each thing in a list of things or in a group of things that lend themselves to listing.” Websters Third International Dictionary (1968). 13a 13 conclusion. That case, while it supports the proposition that the President's mere designation of “countermeasures” and “counter-countermeasures”™ as “items” is insufficient “to foreclose further inquiry.” also reaffirms the principle that deference to the executive “is entirely appropriate under ordinary circumstances.” Id. at 288. Furthermore, we are not dealing with a possible absence of executive power. There is no dispute in this case about whether the wave tube amplifiers could be placed on the List. Thus, unlike cases applying strict construction to avoid | extending the reach of a criminal statute, here the principle “is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings.” United States v. Hartwell, 73 U.S. (6 Wall) 385, 396 (1867). See also Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 & n.4 (3d Cir. 1979) (A “word means what the statute says it means.” and “That the law should attribute expansive and sometimes even bizarre meanings to a word is not a novel phenomenon.”) Even if we were dubious about the reasonableness of the President's more expansive interpretation of “items” and were inclined to give that term a narrower meaning, the present record does not demonstrate that “countermeasures and counter-countermeasures” do not constitute items. Category XI lists highly specialized electronic equipment used for particular military purposes. In that context “countermeasures” obviously has some meaning peculiar to that category and is shaped by its technical environment. In the 1975 virsion of the Munitions List, Category XlI(a) read, “Electronic equipment assigned a military designation including but not limited to, the following items: radar, active and passive countermeasures, counter-countermeasures. .. .” In 1977, the category l4a 14 was amended as quoted earlier to list various sonar devices and more specific types of radar, again followed by “countermeasures.” Thus, the listing suggests that countermeasures is a term of art having reference to radar. We have little doubt that had “radar jamming devices” been used instead of “countermeasures,” the district court would have accepted that designation. On the present record. we are not satisfied that in the military electronics field “countermeasures” does not mean radar jamming devices and hence is as much an “item” as a nuclear propulsion plant. In that event the statutory direction has been complied with, and the basis for the defendants’ motion falls. We conclude that “countermeasures” and “counter-countermeasures" are appropriate designations of “items” for inclusion on the Munitions List, and therefore the indictment must be reinstated. Accordingly. the order of the district court will be vacated and the case remanded for further proceedings. A True Copy: Teste: Clerk of the United States Court of Appeals Jor the Third Circuit 15a UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, Appellant Vs. DA-CHUAN ZHENG, KUANG-SHIN LIN, JING-LI ZHANG, DAVID TSAI, ALLEN YEUNG, Appellees (D. C. Crim. Nos. 84-00064-01/2/3/4/5) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE --------- DISTRICT OF NEW JERSEY Present: SEITZ, WEIS, and ROSEN, Circuit Judges JUDGMENT This cause came on to be heard on the record from the United States District Court for the ------ District of New Jersey and was argued by counsel May l, 1985. l6a On consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said District Court, entered July 3l, 1984 and made final by the order entered Oc tober 10, 1984, be, and the same is hereby vacated and the cause remanded to the said District Court for further proceedings consistent with the opinion of this Court. ATTEST: /S/ M. Elizabeth Ferguson Chief Deputy Clerk July 19, 1985 Certified as a true copy and issued in lieu of a formal mandate on Septembr 4, 1985. Test: /S/ M. Elizabeth Ferguson Chief Deputy Clerk, United States Court of Appeals for the Third Circuit. 17a UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT No. 84-5693 UNITED STATES OF AMERICA, Appellant vs. DA-CHUAN ZHENG, KUANG-SHIN LIN, JING-LI ZHANG, DAVID TSAI, ALLEN YEUNG, Appellees (D. C. Crim. Nos. 84-00064-01/5) SUR PETITION FOR REHEARING Present: ALDISERT, Chief Judge, SEITZ, ADAMS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, and ROSENN, Circuit Judges, The petition for rehearing filed by appellees in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in 18a regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Gibbons did not participate in the consideration of this matter. BY THE COURT, /S/ Weis ~—_—— SS DATED: Aug. 27, 1985 i9a APPENDIX Ii UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY UNITED STATES OF Criminal No. AMERICA 84-64 Plaintiff OPINION vs. ORIGINAL FILED DA-CHUAN ZHENG, JULY 26, 1984 KUANG-SHIN LIN, DAVID TSAI, KWON ALLEN YEUNG, and JING-LI ZHANG, “7 ef «8 «8 #0 © 88 88 8 OF 89 “7 ef Defendants. SAROKIN, District Judge The court here confronts a difficult and highly technical problem involving the propriety of regulations implementing a criminal statute. Underlying this specific issue, how- ever, are more fundamental principles regarding the creation of criminal liability, the extent to which a defendant's subjective belief in the 20a 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., Section 2778 ("the Act"), and regu- lations promulgated pursuant thereto, all in violation of 18 U.S.C., Section 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 Zila 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 sich 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. Section 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. Section 121.01, Category XI(a)(1) (a) (naming “active and passive countermeasures and counter-countermeasures” or “compon- ents" thereof), was unconstitutionally e j« 22a vague, since, as defendants then argued "(t)o 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 or 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 — 23a 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 apart of the Munitions List, see 22 U.S.C., Section 2778(a) (1), (Fn 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 disobe- dience of a congressional mandate, and o Gs 24a not the objective Clarity of the statute Or regulations thus promulgated. (Fn 2) 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 " and acted upon by the legislature, Congress - in giving the Executive authority over matters of foreign » 26 « 77a affairs-must of necessity paint with a brush broader than that it customarily wield in domestic areas. Zemel v. Rusk, 381 U.S. 1, 17 (1965). See also Panama Refining Co., Supra, 293 U.S. at 422. Hence what is left of the delegation doctrine ought not be Strictly enforced in cases involving foreign relations. Nor has it been in cases construing the predecesor to this Act, see cases cited, supra, or related statutes. United Stats v. Rosenberg, 150 F. 2d 788, 789-90 (2d Cir.), cert. denied, 326 U.S. 752 (1945); United States v. Moller-Butcher, supra, 560 F. Supp. at 553 (construing Export Administration Act, 50 U.S.C. App. section 2401 et seg.); United States v. Brumage, supra, 377 F. Supp. at 149-50 (same). @ 19 « 78a ithough the court is hesitant in expounding broad principles of delegation to an executive who may well abuse his or her foreign policy prerogatives, it finds the delegation here at issue to be unproblematic. Titie 22 vU.8.C. section 2778(a) (1) provides In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy 4 guidance to persons of the United States involved in the export and import of such articles and services. 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 so designated shall constitute the United Stats Munitions List. «= 26 « Ee 79a Defendants argue that this’ provision leaves the President without standards to apply in formulating the Munitions List. This argument is without merit. First, the denomination "defense article” and ‘dbdenne service” is not significantly broader that the category "arms, ammunition and implements of war, including technical data relating thereto" which concededly rendered the predecessor to the Act a lawful delegation of authority. See Brief of Defendant Zheng at 15. Defendants' argument that "any item, including wearing apparel or food, could be regarded as a ‘defense article'," Brief of Defendant Zheng at 15, applies as well to the term “implements of war." Furthermore, both the Act and its predecessor serve the same ends: “world peace and the security and foreign » 2 « iii 80a policy of the United States." See also Curtiss-Wright, Supra, 299 U.S. at 312. The earlier provision having been upheld, there is no logic in striking Gown the current one. Second, the terms "defense articles" and “defense services" are, in and of themselves, not standardless, As the Supreme Court stated in Gorin v. United States, 312 U.S. 19 (1941) in holding that the term “information respecting the national defense” was definite enough to withstand a challenge to the Espionage Act of 1917 on due process grounds, national defense is "a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” The court continued, =. 32 « 8la "the language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process.” 312 U.S. at 28. If "national defense" sufficiently apprised the public of what comprised spying during World War II, then the term “defense articles" is certainly not Standardless when directed to the President of the United States in the 1980s. Third, the President's power under the Act is significantly reined in by other provisions of the Act. Thus, as defendants themselves point out, the President must “periodically review the items" on the Munitions List and submit the results of such review to Congress before any item is removed from the list. 22 U«8.C. section 2778(f£). - 23 « 82a Moreover, the issuance 2f export licenss is contingent upon a determination that the export of an article will (mot) contribute to the arms race, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or mirltilateral arms control ar. agements. 22 U.S.C. section 2778(a) (2). These qualifications of the President's power, absent from such cases as Panama Refining or Schecter Poultry, render the Act far from the standardless provision described by defendants. Finally, the components of a munitions list, like tariff rates, Hampton & Co., supra, or listings of disabilities, see Heckler v. Campbell, 103 S. Ct. 1952, 1957 (1983), are precisely the type of complex, » 94 « 83a technical, oft-changed determinations best left for an expert administrator. It would be extremely unwieldy for Congress itself to arrive at and update this type of list. Delegation of such responsibilities to the executive is therefore appropriate. 2. Subdelegation The creation of the Munitions List has been entrusted to the Director of the ACDA, a presidential appointee subject to the approval of the Senate. 22 U.S.C. section 2562. Defendants argue that this subdelegation is unlawful and, by the terms of the statute quoted, supra, only the President himself may develop. such list. This argument is meritless. First, the defendants ignore the = 28 «- &4a obvious intent of the statute. It delegates power to the Executive Branch, and fully contemplates that such power will be exercised by others than the President. Thus, the licensing process is to eccur in coordination with the Director of the United States Arms Control and Disarmament Agency." 20 U.S.C. section 2778(a) (2). The statute recognizes the expertise that will be possessed by the Director who is to “have primary responsibility within the Government for arms control and disarmament matters," 22 U.S.C. section 2562, defined to include "the identification, verification, inspection, limitation, control, reduction, or elimination of armed forces and armaments of all kinds under international agreement including the necessary steps taken under such an o 96 @ 8Sa agreement to establish an effective system of international control, or to create and Strengthen international organizations for the maintenance of peace." 22 U.S.C. section 2552. Part of any such system of international control must’ be the monitoring of arms exports. To that end, the Director of the ACDA is best suited and indeed, Statutorily required, to decide what ought and ought not be the subject of such exports. Moreover, subdelegation is a necessary and accepted practice. See l Davis, Administrative Law Treatise, (3d ed. 1972) at 216. It is hard to imagine that the President himself is required to put pen to paper to draft the Munitions List: for him, as well as Congress, more important oe 4 86a decision-making awaits. Congress has recognized this and adopted 3 U.S.C. section 301 allowing just such subdelegation of Presidential power to "the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate ... without approval, notification, or other action by the President eee” Where’ such delegation is both within the scope of congressional intent and governed by Standards such as those discussed supra, it is wholly proper. Defendants’ motions to dismiss on grounds of unconsitutional delegation are, therefore, denied. II. CHALLENGES TO THE INDICTMENT Defendants challenge the suf- = 28 « 87a ficiency of the indictment and move both to dismiss it and for a bill of particulars. (Fn 7) A. Motion to dismiss Defendants move to dismiss’ the indictment for failure sufficiently to apprise them of the offense with which they are charged. Essentially, they argue that the indictment does not properiy allege a violation of 22 U.S.C. section 2778(c) in that it fails to state which "defense articles" are here involved. Further, defendants content that the indictment must be Gismissed for failure to allege an actual sale cr arrangement to sell and/or that any such sale was for export. It is, of course, constitutionally = 239 « 88a required that an indictment be sufficiently specific to inform a defendat of the charges against which he or she must defend, and enable him or her to plead an acquittal or conviction in bar of future prosecutions’ for the same offense. See, e.g., Hamling v. United States, 418 U.S. 87, 117 (1974); Russell v. (1962). Federal Rule of Criminal Procedure 7(c) (1) codifies this standard, requiring that an indictment be "a plain, concise and definite written statement of the essential facts constituting the offense charged." It is, however, axiomatic that, where as here, the offense charged is a conspiracy, the indictment need not allege *with technical precision all of the elements essential = 30 - 89a to the commission of the offense which is the object of the conspiracy." Wong Tai v. United States, 273 U.S. 77, 81 (1927). Rather, a conspiracy count need only charge: (1) an agreement; (2) an unlawful purpose or object; and (3) at least one overt act in furtherance thereof. See, e.g., United States v. Falcone, 311 U.S. 207, 210 (1940); United States v. Wieschenberg, supra, 604 F. 2d at 331 (conspiracy to violate predecessor of the Act). Hence, courts have consistently held that a conspiracy count need not be as precise as a count alleging a violation of a substantive offense. See, e.g., United States v. Ramos, 666 F. 2d 469, 475 (Sth Cir. 1982); United States v. Clark, 649 F. 2d 534, 539 (7en Cif. 1981; United States v. Pheaster, 544 F. 2d 353, 360 (9th Cir. = 3) « 90a 1976), cert. Genied, 429 U.S. 1099 (1977), quoting Wong Tai, supra, 273 U.S. at 81. See also United States v. Jannotti, 673 F. 2d 575, 591 (3d Cir. 1982) (affirming district court decision dismissing substantive counts for failure to plead one element of Hobbs Act offense, while allowing conspiracy count to stand). In light of these principies, the indictment must stand. First, 4a failure to allege that defendant consummated an export transaction is irrelevant where it is only the agreement to do sc, here alleged, that needs be charged. See generally United States v. Feola, supra, 420 U.S. at 693 (conspiracy law serves ends different from those served by substantive offenses). Second, = 32 « 9la defendants’ argument that the government must identify the precise defense articles here at issue flies in the face of the above principle: a conspiracy to export unlicensed items--including an agreement to do an unlawful act, and several overt acts in furtherance thereof -- is clearly set forth. Moreover, the items at issue are named in paragraph 5S of the indictment, giving some notice to defendants of the allegations against them. Should the government proceed to prosecute defendants for the agreement illegally to export items not named in the indictment, then defendants will have cause to complain. Absent such prejudice, however, the indictment must survive. See Russell Vv. United States, Supra, 369 U.S. at 763. Finally, it should be noted that this e 93 « il 92a . indictment is far more detailed than others charging a violation of the Act or its predecessors which have been allowed to stand. See e.g., Etheridge v. United States, 380 F. 2d 804, 805, 809 (Sth Cir. 1977) (count one in indictment under 22 U.S.C. section 1934, alleging conspiracy to export "arms, ammunition and implements of war" held sufficient). The cases cited by defendants are inapposite. The motion to dismiss is therefore denied. B. Bill of particulars Defendants Tsai and Yeung have moved pursuant to Federal Rule of Criminal Procedure 7(f) for a Bill of Particulars. Specifically, they request an itemization of the defense articles alleged to be involved, the procedural history of their being made a Sh @ ’ 93a part of the Munitions List, the other locations, co-conspirators, dates and overt acts involved in the conspiracy, and, for Tsai, the date upon which he entered the conspiracy and the overt acts with which he is’ charged. The government argues that these requests are either improper or unreasonable in light of the clarity of the indictment and the discovery already provided. With one exception, the court agrees. The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him to adequately prepare his defense, to avoid surprise during trial and to protect him against a second prosecution for an inadequately described offense. A bill of particulars should fulfill this function "when the indictment itself is too vague and indefinite for such purposes." United States v. Addonizio, 451 F. 2d o %% « 5 94a 49, 63-64 (3d Cir. 1971), cert. denied, 405 U. S. 936 (1972) (citations omitted). The grant or denial of such a motion is committed to the sound discretion of the district court. Id. at 64; Wong Tai, Supra, 273 U.S. at 82. As discussed, supra, the indictment is not here vague or indefinite; hence, a bill of particulars iS not necessary. Nor are most of defendants' requests proper: the information requested by defendant Tsai regarding the President's decisions with respect to the Munitions List are part of the public record and thus available to defendants, as well as to the government, through their own research. Further details requested concerning the dates and places of the conspiracy would allow defendants wholesale discovery of the government's — 2 95a evidence, contrary to the purpose of Rule 7 (8). See United States v. Armocida, 515 F. 2d 49, 54 (3d Cir., cert. denied, 423 U.. 858 (1975); Addonizio, supra, 451 F. 2d at 64. Other overt acts need not be disclosed. United States v. Perez, 489 F. 2d 5l, —_—— ee eer Ke 70 (Sth Cir. 1973), cert. denied, 417 W.S. 945 (1974) citing cases). Nor is defendant Tsai entitled to know the particulars of the allegations regarding his personal involvement. See, e.g. United States v. Ostrer, 481 F. Supe. 407, 417 (S.D.N.Y. 1979). Furthermore, the government here represents that it is currently unaware of the identity of any unindicted co-conspirators’ and that "(i)n the event that other coconspirators become know, their identity will promptly be supplied to the defendants." = 33 = 96a Government's Brief at 32 n. 10. However, although the discovery already provided, in the form of transcripts of tapes or videotaped conversettons, seems to provide notice as to what defense articles are here at issue, the court here orders that a bill of particulars be provided by the government specifying precisely which articles will provide the basis’ for this prosecution. While the absence of such exact information does not render the indictment so vague as to require dismissal, the court finds that greater certaintly will enhance the quality of the notice given defendants and avoid the type of surprise at trial which would be unacceptable to the court and to defendants. With this exception, however, defendants' motions for bills «» 236 = 97a of particulars are denied. The court notes that the government has fully and fairly complied with its discovery obligations to this point; it expects that defendants will do the same. III. CHALLENGES TO THE GOVERNMENT'S —_—_——~— A. Due process (Fn 8) Defendants move’ to dismiss’ the indictment on the ground that the behavior of the government was so outrageous as to violate defendant's right to due process. Separate and apart from any entrapment defense, see United States v. Russell, 411 U.S. 423, 431-32 (1973), this due process argument is one that has been accepted in the Third Circuit, see United States v. Twigg, 588 F.2d 373, 377-80 (3d o @« : on 98a Ci¢c. 1978), notwithstanding its limited application by the Supreme Court. Hampton v. United States, 425 U.S. 484 (1976). The government argues, correctly, that recent Third Circuit jurisprudence has emphasized that dismissal on the ground of a violation of the due process clause is a power to be exercised but sparingly. See United States v. Beverly, 723 F.2d ll, 12-13 (34 Cits 1983); United States v. Jannotti, supra, 673 F.2d at re) 06-10; United States v. Bocra, 623 F.2d 2861, 389-90 (3d Cir. 1980). Nonetheless, the doctrine retains some vitality. The due process clause is available to "curb the most intolerable government conduct,” Beverly, Supra, 723 F.2d at 12, where it reaches "that "demonstrable level of outrageousness' necessary to compel acquittal so as to - 40 - — 99a protect the Constitution." Id. at 13, quoting Hampton, supra, 425 U.S. at 495 n.7 (Powell, J., concurring). The parties, of course, differ as to whether that standard has here been met. Defendants paint a picture of the government, through Customs Service Agent Moyes, initiating the contacts with defendnts, promising to supply the defense articles at issue, pressuring the defendants continuously to engage in unlawful behavior to which they were not inclined and attempting to expedite the deal and bring it to a rapid conclusion. The government responds that the idea of illegally exporting defense articles, by shipping the merchandise through a third country, here Hong Kong, was the defendants’ alone. Admitting that Agent Moyes = £2 « 100a played a part, the government nonetheless asserts that it was defendants who ultimately opted for an illegal modus operandi. The parties concede that a full hearing on this issue is” required. Defendant Zheng's Brief at 28; Government's Brief at 39. The court agrees: the allegations of government misconduct are serious ones, not susceptible of decision based upon transcripts alone. Other evidence must be received and credibility determinations made. The only question that remains is of the timing of such hearing. The court has discretion either to hold such a hearing prior to the time of trial or, if good cause exists, defer the matter "for determination at the trial of the » 62 « 10la general issue or until after verdict." Fed. R. Crim. P.1l2(e). Wisdom counsels the latter course here, as it has in other, similar situations. See. e.g., United States _v. Williams, 644 F.2d 950, 952-53 (2d Cir. 1981); United States v. Marcello, 508 F, Supp. 586, 593 (E.D. La. 1981) (citing cases). The evidence that will be presented with respect to the due process issue will, for the most part, be admissible at trial on the issue of intent. Additional evidence, for example, of intragovernmental communications that might bear on the government's conduct but not the defendants' state of mind, can be adduced after trial, if necessary. This disposition will render it unnecessary to re-try many of the same facts--indeed, most of the case--in the » @3 « 102a event that the due process claim is presented and the motion denied under the rigorous standards which now prevail. See United States v. Barletta, 500 F. Supp. 739 (D. Mass. 1980). Judicial time and litigants’ money will thus be saved. The court recognizes that if there has been a violation of defendants’ due process rights, there is a basic unfairness in requiring the defendants to subject themselves to a full scale trial prior to a determination of their Claim. They quite properly argue that if the government has’ been guilty of outrageous conduct, they should not be put through the trauma, anxiety and expense of a trial. However, because of the near identity of the scope of the hearing and the trial itself, the » 64 « 103a court concludes that the interests of justice require a single combined trial and that such procedure adequately protects the rights of the defendants. For these reasons, the court reserves on defendants’ motion to dismiss on due process grounds until after trial and denies their motion for a pretrial hearing. B. Motions to suppress Three defendants have moved to suppress evidence. Defendant Tsai moves to suppress evidence seized from his home on February 1l, 1983. Though without a warrant, the search was by written consent. Tsai now argues that such consent, given while in custody, was not voluntary. A hearing is ordered to address the limited issue of eo @8 « en 104a voluntariness, which hearing is consented to by the government and shall occur at 10:00 AM on May 30, 1984. Defendant Tsai also moves to quash a trial subpoena issued to the Chase Manhattan Bank, where Mr. Tsai was employed, requesting documents concerning Mr. Tsai. The case law is clear: Mr. Tsai lacks standing to challenge a subpoena duces tecum for any bank records regarding him. United States v. Miller, 425 U.S. 435, 440-45 (1976). See also United States Vv. Payner, 447 U.S. 727, 732 and n. 4 (1980). However, certain of his personal documents in the possession of the bank were also requested by the subpoena, and it is these which defendant claims are here at issue. « 46 « 10Sa With respect to these items, defendant has standing to challenge this subpoena, as he would a search of his place of employment. Mancusi vv. DeForte, 392 U.S. 364, 367-69 (1968), cited in Rakas_ v. Illinois, 439 U.S. 128, 143 (1978). However, it appears that Chase Manhattan has aiready complied with the subpoena. Hence defendant Tsai has failed to make his motion to quash sufficiently promptly (Fn 9) to prevail on his complaint that the scope of the subpoena exceeds the bounds of pretrial production authorized by Federal Rule of Criminal Procedure 17(c). See generally United States Vv. Nixon, 418 U.S. 683, 699-700 (1974). Nor is it clear that the government sought pretrial discovery. Rather, acting in a fashion considered less intrusive than a 106a third-party search would have been, see Zurcher v. Stanford Daily, 436 U.S. 547, 560-63 (1978), the prosecutor made such subpoena returnable on the scheduled trial date. Early compliance was not the government's fault, nor the result of any apparent impropriety, and defendant does not object to the subpvena as a trial subpoena. Finally, defendant does not move to suppress the materials as resulting from an illegal search and seizure: were he to do so, however, he would have to show why such search was not a private search beyond the strictures of the fourth amendment, Burdeau v. McDowell, 265 U.S. 465 (1921); United States v. Valen, 479 F. 24 667 (3@ Cir. i973), cert. Genied, 439 U.8s 901 (1974), and that bank officials could not have consented to a search of Mr. Tsai's belongings a So 107a located on their premises. See generally United States v. Matlock, 415 u.S. 164, 171 (1974). Defendant Tsai's motion to suppress is denied. Defendant Yeung has moved to suppress items seized from his suitcase, which was being stored at the home of defendant Tsai. The government has, however, agreed not to use such evidence at trial, rendering this motion moot. Finally, defendant Zheng has moved to suppress a post arrest statement and the search and seizure of certain briefcases, bags and other luggage. No supporting papers were submitted. The government has consented not to use such post arrest statement in its case-in-chief, rendering the former motion moot. (Fn 10). As to the =» 49 - 108a latter, despite the failure of defendant Zheng to provide any argument in support of his motion, the court hereby orders a hearing on such motion, also to take place at 10:00 AM on May 30, 1984. IV. REDACTION Defendant Zheng has moved to redact any reference to him in the post-arrest statements of his co-defendants. The government has agreed to do so and offers a redacted version of the only such statement it plans to use at trial, that of defendant Yeung. Now, ‘iowever, Yeung objects to such redaction, claiming that it unfairly prejudices him, in violation of his right to have the document presented in his’ entirety. See Letter of April 11, 1984, citing « S86 6 109a Bruton v. United States, 391 U.S. 123, 143 (1968) (White, Jer dissenting). He argues that he must be allowed to present an unredacted version of his statement or have his trial severed from that of Mr. Zheng. At oral argument, however, the government agreed to attempt to arrive at a more limited form of redaction which will prove satisfactory to Mr. Yeung and yet protect the sixth amendment rights of defendant Zheng. Pending the submission of such proposed redaction and an opportunity for the pertinent parties to be heard on it, the court reserves on this motion, 110a The government is directed to submit an order in conformity with this opinion. H. Lee Sarokin, U.S.D.J. Date: May 23, 1984 Original to Clerk, U.S. District Court Copy to: Harvey Weissbard, Esq. Robert E. Margulies, Esq. John D. Arseneault, Esq. Robert Fettweis, Esq. Gerald D. Miller, Esq. Susan V. Tipograph, Esq. a 69 « lita FOOTNOTES (Fn 1) This motion was made and briefed by defendant Zheng and joined in by the other defendants. (Fn 2) The court notes that such article, of course, has limited credibility, especially because it begins by stating that the State Department has delayed the instant case, which is simply not true. (Fn 3) Defendants argue that the fact that the list denominates generic categories, rather than particular items, violates the statute, which requires the President "“to designate those items which’ shall be considered as defense articles ..." 22 U.S.C. section 2778(a). This may be true. However, unless such generic categories render the statute vague, such violation does not comprise a ground for dismissal of the indictment. Nor would defendants have standing to raise such violation as a basis for dismissal independent of their vagueness challenge. (Fn 4) This motion was’ made and briefed by defendants Zheng and Lin, and joined in by the remaining defendants. (Fa 3) 22 U.S.C. section 1934 (repealed). l12a (Fn 6) Curtiss-Wright has been seen as an effort to “get around Panama and Schecter" in order to conclude that "Congress could in the foreign affairs field make a delegation to the executive which in the domestic field would be unconstitutional." United States v. Butenko, 494 F. 2d 593, 630 (3d Cit. 1974) (Gibbons, J. dissenting in part). Judge Gibbons joins other commentators in criticizing this holding, see Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 Yale LJ. l1 (1973), and this court might not apply this doctrine were it pushed to its outer limits. This case does not, however, do so. (Fn 7) The motion to dismiss was made and briefed by defendant Lin and joined in by the other defendants. Bills of particulars were requested by defendants Yeung and Tsai. (Fn 8) Defendant Zheng made and briefed the motion regarding violation of the due process clause. All other defendants have, however, joined in such motion. (Fn 9) There is no indication that defendant did not receive timely notice of such subpoena. (Fn 10) Regardless of the outcome of the hearing requested by defendant Zheng, suct: statement would be admissible ter impeachment purposes. Harris v. New York, 401 U.S. 222 (1971). » $4 « , ea ll3a APPENDIX IV ORIGINAL FILED OCTOBER 4, 1984 ALLYN Z. LITE CLERK UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF : Criminal Action No. AMERICA . : 84-64 Plaintiff, OPINION Ve Criminal No. 84-64 DA-CHUAN ZHENG, KUANG-SHIN DAVID TSAI, ALLEN YEUNG, and JING-LI ZHANG, Defendants. LIN, KWONG SAROKIN, District Judge This matter is before the court on the government's motion for reconsider- ation of Opinion dismissing defendants to violate the court's July 26, 1984 and Order ("Opinion") an indictment charging with one count of conspiracy the Arms Export Control Act, llda 22 U.S.C., Section 2778 ("the Act") (Fn 1), by arranging for the unlicensed export of radar jamming devices, known as wave tube amplifiers, to the People's Republic of China. The court's ruling was based upon the Act's requirement that those "defense articles and defense services" subject to import and export controls. be designated as “items" on the United States Munitions List, 22 C.F.R. Section 121.01 et seg. The court held that the section of the Munitions List which the government Claimed encompassed wave tube amplifiers failed to designate "items" and, instead, named the "category" "active and passive countermeasures and counter- countermeasures." 22 C.F.R. Section 121.01, Category XI(a) (1). The court thus found such category to be beyond the scope of the Act and as such, a 115a nullity not capable of supporting an indictment. The court's analysis proceeded in three stages. First, the court held that "there is no question but that the term ‘countermeasure’ does not constitute an ‘item.'" Opinion at 4. Even read in context, Opinion at 4-5 and n.3 (Fn 2), “countermeasures” did not fall within the dictionary definition of the term “item.” Thus, the court found that common” sense dictated that "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. Opinion at 6. That the government specifically listed wave tube li6a amplifiers elsewhere in the Code of Federal Regulations, see, e.g., 14 C.F.R. Section 171.323, and created a Munitions List sufficiently specific in many other respects demonstrated to the court that wave tube amplifiers could have been properly listed without undermining the necessary flexibility of the Munitions List. Opinion at 7-8. Second, the court held that the language of the Act mandated the listing of "items" and thet this language, as well as the legislative history underlying it, made clear that such mandate was consistent with the purposes of the Act. Thus, in contrast to the Export Administration Act, the Arms Export Control Act required the specification of "items" in order to effectuate the more rigorous oversight of the Executive mandated by Congress. 117a Opinion at 9-10. Together, these two Acts were meant to impose import and export control on only those articles appropriately regulated, and to make clear to exporters and importers precisely what those articles were. The use of the term “items" in the Arms Export Control Act accomplishes this purpose and was a choice made by Congress in passing such Act, and repealing its predecessor. Opinion at ll-13. Finally, the court held that, because the Executive had failed to adhere to the statutory mandate of the Act by denominating “categories” rather than "items" on the Munitions List, such action was deemed a nullity and could not support a prosecution. For this reason, the indictment was to be dismissed, ee 118a In its motion for reconsideration, the government does not address the first or third prongs of the court's analysis (Fn 3). Rather, for the first time, it confronts the legislative history of the Act, arguing that the court's analysis is erroneous in three respects. Primarily, the government directs itself to a single footnote in the court's Opinion, arguing tht he court erred in concluding thet Coiigress meant to require greater specificity when it passed the Act, and thus changed the statutory basis for the Munition's List. See Government's Brief at 3-6, citing Opinion at 13 n.6. Second, the government contends that it was inappropriate for the court “to engraft onto the Arms Export Control Act the legislative history for the Export Administration Act," in part because the two Acts “were not even 119a enacted by the same Congress." Government's Brief at 6-7. And third, the government argues that Congress achieved sufficient oversight of the Munitions List by requiring that the Executive comply with “srious reporting requirements set fo-th in the Act; hence, “a more particularized Munitions List would add nothing to the legislative capacity to oversee the arms exportation process. Fer purposes of congressional oversight, then, the terminology of the Munitions List is irrelevant." Government's Brief at 8. The court finds these contentions to be without merit and therefore denies the government's motion for reconsideration. The government has not persuaded the court that it erred in holding that Congress meant “items” when it repeatedly said "items" in the FE aetna at tala aa laa ae 120a Act. See 22 Pate Ge Sections 2776(a) (4), 2778(a) (1), 2778(£). Of course, *the Starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention ) to the contrary, that language must ordinarily be regarded as conclusive." Consumer Products Safety Commission v. GTE Syivania, Inc., 447 U.S. 102, 108 (1980). Nonetheless, the government argues that when Congress stated, for example, that "“(t)he President is authorized to designate those items" which would constitute the United States Munitions List, it implicitly allowed the President to designate categories as well. This argument disregards the lanauage of the Act, language which, the court must assume, was meant to be given full effect, see, e.g-, Reiter v. Sonotone Corp., 442 121la U.S. 330, 339 (1979), citing United States v. Menasche, 348 U.S. 528, 538-39 (1955), and should be strictly construed, particularly where criminal Sanctions are at issue. See, e.g., Adamo Wrecking Co. v. United States, 434 U.S. 275, 285 (1978), citing United States v. Bass, 404 U.S. 336, 348 (1971). Moreover, the court beieves’ that the legislative history relied upon Supports its position. The government does not dispute that, in enacting the Act in 1976, Congress added the word "items" to the Statute, thereby distinguishing such statute from its predecessor. 22 U.S.C. Section 1934. See Opinion at 13 n.6. ("In any event, the change in the statute reveals an intentional movement to the word ‘item’ in 1976.") However, it attacks’ the 122a court's conclusion that such change was meaningful, arguing that the language and history of the Act make clear that Congress did not intend, by its passage, to require particularization of the Munitions List. Thus, the government argues that Congress explicitly continued the existing Munitions List in full force and effect. Indeed, Section 212(b) (2) of All determinations, authori- zations, regulations, orders, contracts, agreements and other actions issued, undertaken, or entered into under (22 U.8.0. Section 1934, the predecessor of the Act) shall continue in full force and effect until modified, revoked, or superseded by appropriate authority. It is true, as the government argues, that this language alone does not state that the new Munitions List was necessarily to be more particularized 123a than that which preceded it. However, Section 212(b)(2) clearly anticipates that the Munitions List, and/or other regulations issued pursuant to the Mutual Security Act of 1954, 22 U.S.C. Section 1934, would change as a result of the passage of the Arms’ Export Control Act. Such changes might occur by virtue of changes in the language of the latter Act, as the Executive attempted properly to bring such regulations into compliance with such Act. Congress acted so as to insure continuity in the interim. It could not, however, have intended that existing regulations not conforming to its new enactment be insulated from review as a result of this clause. Indeed, such review is explicitly authorized, and in the exercise of its "appropriate authority," the court has performed such review here. The Oe Te 124a government's argument that the Munitions List, with its many imperfections, see Government's Brief at 4-5, was to be continued permanently "in full force and effect," notwithstanding express Statutory language requiring it to change thus misconceives the purpose and substance of the savings clause which it quotes. Congress did not approve of the existing Munitions List; it simply did not requre that it be scuttled pending appropriate legislative, administrative or judicial action. The government is also correct that the legislative history which it cites does not require a more particuarized list. Nor, however, does it stand for the opposite proposition that, as the government contends, "Congress intended no substantive 125a change in the manner in which the Muntions List up to that time had been compiled." Government's Brief at 6. Referring to the Act's substitution of the term “defense articles and defense services" for the term "arms, ammunitions, and implements of war" in 22 U.S.C. Section 1934, the Report of the Senate Committee on Foreign Relations stated, This change is merely intended to conform (22 U.S.C. Section 2778) to the style of the other sections of the Act. It is not intended to alter the scope of items subject to export control, or the extent of such control, under the regulations authorized by this bill. S. Rep. No. 94-876, 94th Cong., 2d Sess. (1976) at 42, cited in Government's Brief at 5-6. This Snippet of legislative history does not assist the court in defining the 126a term “item,” or in assessing its importance. Rather, it makes clear that in changing the language of the Act, no change in the types of items which were to comprise the Munitions List was intended. Indeed, this quotation does not mention the conspicuous addition of the word "items" to the Act, except to utilize such word precisely as does the Act (Pn 3). The court remains convinced that such addition was not coincidental; its decision strove, therefore, to give the meaning to the term "item" that was intended by Congress. In gleaning this meaning, the court relied primarily upon the ordinary definition of the term. However, the court recognized that this “need not end the inquiry,” and went beyond such 127a "plain meaning” to ascertain the purposes behind Congess' actions. See, e.g., Watt v. Alaska, 451 U.S. 259, 265-66 (1981). In so doing, it compared the Arms Export Control Act with the Export Administration Act, a comparison which the government labels inappropriate. ee Government's Brief at 6 (Fn 6). Such cy. »arison was not one that was fabricated by the court. In fact, the Export Administration Act amended the Arms Export Control Act to bring the two into line. As the court noted, the Export Administration Act explicitly stated The authority granted to the President in this Act shall be exercised in such a manner as to achieve effective coordination with the authority exercised under section 38 of the Arms Export Control Act (22 U.8.6. 2778). 128a 50 J.$8.C. App. Section 2416(b), cited in Opinion at 11. The Arms Export Control Act was amended accordingly. 22 U.S.C. Section 2778(e). And, when the Act was again amended in 1981, further coordination with the Export Administration Act was explicitly effected. See 22 U.S.C. Section 2778(f£) (reports to Congress regarding items no longer warranting controls “shall describe the nature of any controls to be imposed on that item under the Export Administration Act of 1979..."). In light of this express language of coordination, it matters little that, as the government argues, *(t)he two statues, after ail, were not even enacted by the same Congress." Government's Brief at 6-7. See, e.g., Oscar Meyer & Co. Ve Evans, 441 U.S. 750, 756 (1979) (interpreting Title VII of the Civil 129a Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 #4xin pari materia), citing Northcross Vv. Memphis Board of Education, 412 U.S. 427, 428 (1973). See generally 2A Sands, supra, Section 51.02 at 290 ("...it is assumed that whenever the legislature enacts a provision it has in mind previous Statutes relating to the same subject matter, wherefore it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they should all be construed together.") See also Commonwealth of Pennsylvania Vv. Department of Health and Human Services, 723 F.2d 1114, 1119 (3d Cir. 1983) ("statutory provisions enacted at different times should be read as 130a harmoniously as possible, so that each is given effect and the provisions do not conflict") (citing cases). The court utilized a comparison between the Export Administration Act and the Arms Export Control Act to Clarify the purposes of the latter. Thus, the court noted that the Acts were dissimilar in that the Arms Export Control Act involved more rigorous oversight of executive actions thereunder by Congress. It found that the inclusion of the term "items" in the Arms Export Control Act but not in the Export Administration Act was consistent with this Gistinction and concluded that, by including the term “items," Congress intended to enhance the effectiveness of such oversight. Viewed this way, failure to name *items" is a material l3la breach of the Act. See Opinion at 10 (Fn 7). Such comparison also made clear that the term “items" was meant to increase the quality of the notice provided by the Act, and thereby to "remove unnecessary barriers to exporting goods which might arise from the chilling effect that necessarily attends less clear regulation.” Opinion at 13-14. Such a reading was consistent with the purposes of the Export Administration Act, which purposes were incorporated into the Arms Export Control Act by the amendment thereto, or which, to the extent they conflicted with the latter, were most recent and thus, prevailed. See Watt Vv. Alaska, Supra, 451 U.S. at 266-67, citing 2A Sands, supra, Section 51.02. The l32a court thus continues to believe that Congress intended, and continues to intend, to maximize the notice given to potential arms dealers, and that the term “items" was one means of accomplishing this goal. The government's motion for reconsideration must therefore be denied, for it fails to persuade the court that the court erred in holding that Congress meant what it said and said what it meant. The language of the Act cannot be disputed. Extrinsic “aiés to its interpretation make clear that Congress did not act inadvertently in adding the term "items," but meant to change the law with particular purposes in mind. In ignoring the language of the Act, the Executive has undermined these purposes and exceeded his authority. 133a His actions do not, therefore, acquire the ferce of law; much less may they give rise to criminal liability. The government's motion for reconsideration is denied. An appropriate order will issue. H. LEE SAROKIN, U.S.D.J. Date: October 4, 1984 Original to Clerk, U.S. District Court Copy to: Harvey Weissbard, Esq. Robert E. Margulies, Esq. John D. Arseneault, Esq. Robert Fettweis, Esq. Gerald D. Miller, Esq. Susan V. Tipograph, Esq. 134a FOOTNOTES Fn 1. In its Opinion, the court often referred to the Act as the Arms Control Export Act. The proper designation is the Arms Export Control Act. Fn 2. The government appears to argue that the Court did not consider the term "active and passive counter- measures and counter-countermeasures" in context. See Government's Brief at 2, mn.l. In fact, the court's Opinion specifically states that such term comprises a category even where "limited to... ‘Military and Space Electronics’ and even read in the context of the paragraph in which it appears." Opinion at 4. That part of the paragraph not quoted by the court adds little to the context, so described. Fn 3. The government has previously argued that countermeasures are sufficiently “items” within the meaning of the Act and that defendants lack Standing to raise the instant issue because of their alleged knowledge of the illegality of their actions. Defendant Zheng argues, with some force and justification, that the govern- ment's failure to raise the issues breught before the court on this application renders this application procedurally inappropriate. The Court will nonetheless address the government's concerns, in the interests of finally disposing of this matter on its legal merits. 135a Fn 4. This provision apparently has not been made ae part of the United States Code. It can be found in the annotations to 22 U.S.C. Section 1934. Fn 5. Defendant Zheng argues that the "itemization" of the Munitions List was contemplated even by the predecessor of the Act. See Brief of Defendant Zheng at 8-9. Indeed, the legislative history indicates that one purpose of the Mutual Security Act of 1954 was "to relieve commercial enterprises of the burden of unnecessary detail and redtape required under existing legislation." See S. Rep. No. 1799, 83d Cong., 2d Sess., quoted in 1954 U.S. Code Cong. & Adm. News 3175, 3268. This goal is consistent with greater particularization of the Munitions List. See Opinion at 11-13. The court believes that in adding the word "items," Congress sought to achieve this goal. See United States Ve Tapert, 625 F.2d lll, 121 (6th Cifed.s Gert. denied, 449 U.S. 952 (1980) (amendment “is a common and customary legislative procedure... Strengthening and clarifying existing laws"); 1A Sands, Sutherland Statutory Construction Section 22.30, at 178 (1972) Ceeckt interpreting an amendatory act there is a presumption of change in legal rights.") See also May Department Stores Co. v. Smith, 972 F.2d 1275, 1278 (8th Cir.), cet. denied, 439 U.S. 837 (1978) (amendment, though not controlling, is entitled to substantial weight in contruction of statute) citing Glidden CO. , Ws Zdanok, 370 U.S. 530, 541 (1962); 1A Sands, supra, Section 22.31 at 184. 136a Fn 6. Defendant Zheng is correct that this very comparison is one previously urged upon the court by the government. See Brief of Defendant Zheng at 13-14, quoting Government's Brief in Opposition to Defendants' Pretrial Motion at 22. Fn 7. The government's argument that the Act achieves all the congressional oversight it needs by virtue of the reporting requirements of 22 U.S.C. Section 2776 is unconvincing. Such oversight is mandated by Section 2275; it is made effective by, for example, the requirement that the Munitions List be composed of “items.” Hence, the "items" requirement Supplements’ the reporting provisions, and is entirely consistent with it. The effort by the government’ to characterize the two requirements as somehow exclusive of one another finds no support in the legislative history, in principles of Statutory construction, or in logic. 137a APPENDIX V CRIMINAL COMPLAINT UNITED STATES DISTRICT COURT - DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA Vv. DA-CHUAN ZHENG, KUANG-SHIN LIN, DAVID TSAI ALLEN YEUNG, and JING-LI ZHANG Complaint for Violation of Title 18 United States Code Sec. 371 and 2 Honorable G. Donald Haneke U.S. Magistrate Newark, New Jersey Date of Offense Place of offense 2/11/84 Shrewsbury, NJ COMPLAINANT'S STATEMENT OF FACTS CON- STITUTING THE OFFENSE OR VIOLATION: On or about February 11, 1984, in the town of Shrewsbury, in the District of New Jersey, the defendants DA-CHUAN ZHENG, KUANG-SHIN LIN, DAVID TSAI, ALLEN YEUNG, and JING-LI ZHANG, conspired with each other to violate the Arms Export Control Act, Title 22, United States Code, Section 2778(c), to wit, these defendants conspired to export to the Peoples Republic of China Watkins-Johnson 3108 TWTA units, which 138a items are presently included on the Munitions Control List as defined in Title 22. United States Code, Section 2778(a). In furtherance of the conspir- acy, the defendants committed the following overt act: On February ll, 1984, the defendants DA-CHUAN ZHENG, KUANG-SHIN LIN, DAVID TSAI, ALLEN YEUNG, and JING-LI ZHANG met with Special Agent Richard Kennan and set the terms and conditions of purchase rates of high technology equipment with military application. In violation of Title 18, United States Code, Sections 371 and 2. (SEE ATTACHED) FRANK VENTURA Special Agent, U.S. Customs Date: 2/13/84 139a I, Frank Ventura, am a Special Agent of the United States Customs Service, Department of Treasury. I have probable cause to believe defendants DA-CHUAN ZHENG, KUANG-SHIN LIN, DAVID TSAI, ALLEN YEUNG, and JING-LI ZHANG on or about February ll, 1984, conspired to violate the Arms Export Control Act, Title 22, United States Code, Section 2778, in violation of Title 18, United States Code, Sections 371 and 2. This belief is based on the following facts of which I have personal knowledge. A. The Newark Division of the United States Customs Service is presently Operating an undercover operation in New Jersey. During the course of this investigation, a Special Agent of the United States Customs Service, acting in an undercover capacity, met with KUANG SHIN LIN On three separate occasions. B. On February 7, 1984, Special Agent Richard Kennan, in an undercover Capacity, met with LIN in an office in Shrewsbury, New Jersey. This meeting was videotaped. I have reviewed a videotape of that meeting in the presence of Special Agent Kennan. Kennan has stated to me that this videotape truly and accurately reflects the meeting which took place. During this initial meeting, LIN expressed to Kennan that he was interested in 140a purchasing, among other things, a Watkins-Johnson 3108-1 TWTA from Kennan On behalf of his client. He stated that his client, a businessman from Hone Kong, was interested in diverting this equipment to the People's Republic of China. Kennan had earlier represented himself as being capable of exporting high technology equipment. C. I have spoken to the United States Office of Munitions Control. This agency is charged with maintaining descriptions of items which constitute the United States Munitions “ist described in Title 22, United States Code, Section 2278(a) (1). Repre- sentatives from the Office of Munitions Control have stated: (1) The Watkins-Johnson 3108-1 TWTA, is presently on the United States Munitions List. As such, its exportation is controlled by Title 22, United States Code, Section 2778, et seq. (2) This equipment is a transverse wave tube amplifier and has mili- tary application as part of radar and guidance systems. (3) The exportation of such equip- ment without alicense from the Office of Munitions Control is a viclation of Title 22, United States Code, Section 2778, et seq. D. On February 10, 1984, LIN again met with the undercover agent in Shrews- bury, New Jersey. This meeting was also videotaped and I have reviewed the videotape with Special Agent Kennan. l4la Kennan has stated to me that the videotape accurately and truly rep- resents the events of this meeting. E. At the February 10, 1984 meeting, LIN was accompanied by defendants DA-CHUAN ZHENG, JING-LI ZHANG, and ALLEN ZHENG DA-CHUAN ZHENG represented h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1079%3A1. Public record. Not legal advice.