Petition for Writ of Certiorari — Bozarov v. United States
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Bupreme Court, U.S.
FILED
| OCT 15 1992
OFFICG Q@ THE ELERK
q
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1992
UNITED STATES OF AMERICA,
Respondent,
VS.
OGNIAN BOZAROV,
Petitioner.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEYMAN I LUNDQUIST
(Counsel of Record)
HELLER, EHRMAN, WHITE &
MCAULIFFE
333 Bush Street
San Francisco, California 94104-2878
Telephone: (415) 772-6000
Attorneys for Petitioner
BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. + &.F.. CA 84103 + (415) 8642300
I.
QUESTIONS PRESENTED
Whether the separation of powers doctrine of the United
States Constitution permits Congress to make a broad dele-
gation of authority to the Executive which totally precludes
judicial review of the delegated functions?
Whether under separation of powers analysis the purpose of
an intelligible principle channeling Executive discretion is
solely to allow Congress to monitor its delegation or whether
it is also to “permit a court to ascertain whether the will of
Congress has been obeyed?”
“*
TABLE OF CONTENTS
QUESTIONS PREGEINIED. ......ccveccccscsneceaes
pe Re er rr
TABLE OF AUTHORITIES ............... err TTT
REFERENCE TO OFFICIAL REPORTS.............
STATEMENT OF JURISDICTION ..................
CONSTITUTIONAL AND STATUTORY
POPU REO MEU VUPESUIEED ce sccnccevecnsncencess
I
An Important Constitutional Question Involving “A Ques-
tion that The Supreme Court Apparently has not yet
Squarely Confronted” Will Have Been Decided by the
Court Below in a Manner that Violates the Separation of
Powers Nondelegation Doctrine of The United States
CII sn: -n 00:05 05.9:5,0.500000 0 a
II
The Decision of the Court Below is in Conflict with U.S. v.
Touby, Which States that Judicial Review is Required to
Perfect a Delegated Law-making Scheme to Insure that
“The Exercise of Such [Delegated] Power Remains
Wes GORY TRG” ok 5 be ceksssdsiassaaeeeees
Ill
The Decision of The Ninth Circuit Conflicts With The
Seen’ aad Fave Gee «os 4.0 kde 005s ese ees
CURCUMIN 6 ns cnedtnnesedvaxteeuusa a eee
ill
TABLE OF AUTHORITIES
Cases
Page
American Power and Light Co. v. SEC, 329 U.S. 90 (1946) 8
SR Tee Wee, SPF Wich, SOG CEPPO) nn cece sescsveness 7
Marbury v. Madison, 5 U.S. 137, 176 (1803) ........... 10
Metropolitan Washington Airports Authority v. Citizens for
the Abatement of Aircraft Noise, Inc., i Se
a sacks cha tases csecesececss 5
Mistretta v. United States, 488 U.S. 361 (1989) ......... 9
Morrison v. Olson, 487 U.S. 654 (1988)................ 5
Sandstrom v. Montana, 442 U.S. 510 (1979)............ 7
Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989) 9
Touby v. United States, __. U.S. ___, 111 S. Ct. 1752
EE Se eee passim
United States v. Gordon, 580 F.2d 827 (Sth Cir. 1978)... 9
United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990)... 6
United States v. Pastor, 557 F.2d 930 (2d Cir. 1977) ..... 8
United States v. Spawr Optical Research, Inc., 864 F.2d
Ne epee eae asects sess ee 7
United States v. Widdowson, 916 F.2d 587 (10th Cir. 1990),
vacated and remanded in light of Touby, 112 S. Ct. 39
EEE EE er 9
Other Authorities
H.R. Conf. Rep. No. 99-180, 99th Cong., Ist Sess. 57,
reprinted in 1985 U.S. Code Cong. & Ad. News 108,119 6
The Federalist No. 47 (J. Cooke ed. 1951) (Madison) ... §
No.
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1992
UNITED STATES OF AMERICA,
Responent,
VS.
OGNIAN BOZAROV,
Petitioner.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRiT OF CERTIORARI
Petitioner respectfully requests that a wnit of certiorari issue to
review the judgment of the United States Court of Appeals for
the Ninth Circuit in this case.
REFERENCE TO OFFICIAL REPORTS
The opinion of the Court of Appeals filed on August 10, 1992 is
not yet published. A copy of that opinion is attached to this
petition as Appendix A and will be cited herein as “op.” The
United States District Court for the Central District of California
filed no opinion but entered judgment dismissing the indictment
on August 29, 1991. A copy of that judgment is attached as
Appendix B.
2
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was entered on August
10, 1992. Jurisdiction of this Court is invoked under the provi-
sions of Section 1254(1) of Title 28, United States Code.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat.
503 (1979). All references are to the statute as written at the time
of the indictment in 1983. The statute provides in pertinent part:
50 U.S.C. §§ 2410(a) and (b) provide criminal sanctions for
violating the statute and its regulations as well as any licenses or
orders issued thereunder; § 2412(a) excludes all “functions exer-
cised under the Act” from judicial review. The functions the
Secretary of Commerce is required to carry out are contained, for
example, in §§ 2405(c), 2405(d), 2405(f) (requiring consulta-
tion with business and industry, other countries and Congress),
2404(c)(3) (goods and technology on the control list must be
reviewed at least once a year to determine whether they should
remain on the list; factors include the availability of similar
technology from sources outside the U.S.), 2404(h) (consulta-
tion with technical advisory committees). United States Consti-
tution: Articles I, II, and III.
STATEMENT OF THE CASE
Petitioner Ognian Bozarov, a citizen of Bulgaria, was indicted
on November 3, 1983 for conspiracy to violate the Export Admin-
istration Act of 1979, 50 U.S.C. App. § 2410(a) (“the EAA”),
involving the exportation of computer disk manufacturing equip-
ment. The equipment in question had been obsolete since 1976
and available from sources outside the U. S. since 1979. Peti-
tioner was never notified of the charge against him by the United
States Attorney. Bozarov first learned of the indictment when,
because of the pending criminal proceedings, he was denied
export privileges by the Department of Commerce. Bozarov
protested and requested a hearing. In 1986, without a hearing and
without government opposition, a Commerce Department Ad-
3
ministrative Law Judge ordered his export privileges restored.
Petitioner thus assumed that the export violations charged had
been resolved in his favor. On two occasions, he was issued a visa
to enter the United States. On the second of these visits, in
December 1990, Bozarov was arrested on_the outstanding con-
spiracy charge that had been pending since 1983.
Petitioner made several motions in the District Court, one of
which is germane to this Petition. A motion to dismiss the
indictment was made on the grounds that the Export Administra-
tion Act violated the separation of powers doctrine of the United
States Constitution because the Act precluded all judicial review,
and that the Act, as applied, denied due process. After briefing
and several hearings, the motion was granted solely on the issue of
separation of powers. Following this Court’s decision in United
States v. Touby, U.S. —_, 111 S. Ct. 1752 (1991), the
District Court held that the preclusion of all judicial review under
the Act would permit the Secretary of Commerce (“the Secre-
tary”) to act contrary to the “intelligible principle” laid down by
Congress, and that judicial review was required by the separation
of powers doctrine to insure compliance with the legislative
delegation. The District Court declined to reach the subsidiary
question raised in the motion, that the statute as applied denied
petitioner due process of law.
The government appealed under provisions of 18 U.S.C.
§ 3731. The Court of Appeals reversed the order dismissing the
indictment, expressly holding that judicial review was not re-
quired under the separation of powers doctrine. The Court re-
jected the District Court’s analysis of Touby, supra, that judicial
review was required to “perfect” the delegation of legislative
powers.
No petition for rehearing was filed.
"hin
REASONS FOR GRANTING THE WRIT
At the time of Bozarov’s indictment, the Export Administra-
tion Act was the only significant legislation specifically excluding
administrative or judicial review under the Administrative Proce-
dures Act. It provided that all functions performed by the Secre-
4
tary were exempt from judicial review. Following this Court's
holding in United States v. Touby, supra, the District Court
dismissed the indictment on the grounds that the EAA violated
the separation of powers doctrine by precluding all judicial review
of executive action. The Court of Appeals reversed, holding that
judicial review is not required of legislative delegations. Citing
cases where some judicial review had been denied, the Court
concluded that a// review may be constitutionally limited. The
Ninth Circuit’s holding is clear: judicial review of legislative
delegations is not required to permit courts to ascertain whether
the will of Congress is being obeyed. This principle conflicts with
decisions of this Court and other circuits on the permissible
parameters of legislative delegations in limiting judicial review.
The decision below permits the delegation of lawmaking power to
the Executive, and bars the Judiciary from insuring that the
delegation is being followed.
I
AN IMPORTANT CONSTITUTIONAL QUESTION IN-
VOLVING “A QUESTION THAT THE SUPREME
COURT APPARENTLY HAS NOT YET SQUARELY
CONFRONTED” WILL HAVE BEEN DECIDF” BY THE
COURT BELOW IN A MANNER T™“"AT Vi*™" 4TES THE
SEPARATION OF POWERS NONDELZGATION DOC-
TRINE OF THE UNITED STATES CONSTITUTION.
The Court of Appeals erroneously decided a constitutional
separation of powers question never before addressed by this
Court:
This appeal involves a question that the Supreme Court
apparently has not yet squarely confronted: does a delegation
of legislative power to the executive that is statutorily exempt
from judicial review violate the non-delegation doctrine? In
essence, this question turns on the purpose of requiring
Congress to lay down an ‘intelligible principle.’ The govern-
ment argues that the purpose of an intelligible principle is
simply to channel the discretion of the executive and to
permit Congress to determine whether its will is being
3
obeyed. Bozarov contends that the purpose of requiring an
intelligible principle is to permit a court to ascertain whether
the will of Congress has been obeyed. We believe that the
government has the better of the argument.
Op. at 9616.
If the Court of Appeals is correct in its observation that this
extremely important and timely issue of constitutional interpreta-
tion has not been definitively resolved it is imperative that this
Court do so now. If the Court does not confront the issue, the
holding of the Court of Appeals below will permit a major erosion
of the separation of powers doctrine which is fundamental to our
way of government.
[This] system of separated powers and checks and balances
established in the Constitution was regarded by the Framers
as [a] “self-executing safeguard against the encroachment
or aggrandizement of one branch at the expense of the
other.” We have not hesitated to invalidate provisions of law
which violate this principle.
Metropolitan Washington Airports Authority v. Citizens for the
Abatement of Aircraft Noise, Inc., |) Goon | | oe © ae
2298, 2310 (1991) (quoting Morrison v. Olson, 487 U.S. 654, 693
(1988)).
If this issue is not addressed by the Court the decision of the
Court of Appeals will permit Congress not only to delegate its
powers but also to be the sole authority determining whether its
delegation had been or is being followed. This is constitutionally
unacceptable. Such a result contravenes the 200 year history of
separation of powers protections to our liberty. The framers of the
Constitution recognized the fundamental flaw in such broad
delegations in adopting a tripartite system. “The accumulation of
all powers, legislative, executive and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the very defini-
tion of tyranny.” The Federalist No. 47, at 324 (J. Cooke ed.
1951) (Madison).
6
For reasons of practicality as well, Congress cannot serve as the
sole authority monitoring its delegations. Senate conferees, for
example, have described executive compliance with the statutory
regulations of the EAA as “inconsistent and irrational” and noted
that this noncompliance had denied “fair and equal treatment” to
both exporters and foreign customers. H.R. Conf. Rep. No. 99-
180, 99th Cong., Ist Sess. 57, reprinted in 1985 U.S. Code Cong.
& Ad. News 108, 119. Despite such blatant disregard of the
“intelligible principles’, as specified by the EAA, it took four
years for Congress even to comment on, much less act upon, the
Secretary's failure to comply with his or her delegated duties.
The effect of the Court of Appeals decision on individuals can
be devastating, as this case demonstrates. Under the EAA, the
Secretary of Commerce is permitted to create a control list of
exports requiring a license but no item is to be placed on the list
until the Secretary undertakes a series of steps prescribed by the
statute. The intended result of this Congressionally mandated
process was to limit the goods that require an export license and
generally to assure that the list included only current technology
not available from other sources.
Because of the Court of Appeals’ unwillingness to review
whether the legislative delegation was adhered to, Bozarov is
potentially denied the defense that because the congressionally
mandated steps were not followed the items on the list were
neither “current” (i.e., that the Secretary had not performed the
required annual review of list) nor “technology” (i.e., whether the
listed items were available from foreign sources) and thus never
intended by Congress to be subject to an export license. Under
the expansive language of United States v. Mandel, 914 F.2d 1215
(9th Cir. 1990), a defendant in a criminal case may not contest
the Secretary's determination that a particular commodity is on
the Commodity Control List. Right or wrong, if the Secretary
says a commodity is on the list that determination is immune
from judicial review even if, in fact, the commodity is not on the
list.
j
1
_
PRE me
7
Mandel followed United States v. Spawr Optical Research, Inc,
864 F.2d 1467, 1473 (9th Cir. 1988), which heid:
In this case, the Secretary has determined that the Spawrs’
mirrors could not be exported without an export license.
Right or wrong, the trial court must accept this determination
as a matter of law. The government need not establish
independently [of the Secretary’s determination] at trial, as
an element of the charged offenses beyond a reasonable
doubt, that the Spawrs’mirrors were included on the CCL
and therefore subject to the licensing requirement. Because
the licensing issue was not an element of the charged
offenses, the Spawrs are not denied due process or the right
to a jury trial by deference to the Secretary’s determination.
[Emphasis supplied }.
Judge Pregerson observed in dissent that treating the Secre-
tary’s determination that a commodity is on the list as conclusive
raises serious due process and righi to jury trial issues. Jd. at 1475
(Pregerson, J., dissenting) (citing Jn re Winship, 397 U.S. 358
(1970) and Sandstrom v. Montana, 442 U.S. 510 (1979)).
The combined effect of the cases is inconsistent with other
holdings of this Court, and certainly in conflict with the principles
stated in United States v. Touby.
Il
THE DECISION OF THE COURT BELOW IS IN CON-
FLICT WITH U.S. ». TOUBY WHICH STATES THAT
JUDICIAL REVIEW IS REQUIRED TO PERFECT A
DELEGATED LAW-MAKING SCHEME TO INSURE
THAT “THE EXERCISE OF SUCH [DELEGATED]
POWER REMAINS WITHIN STATUTORY BOUNDS.”
Despite the Court of Appeals’ finding that the issue here is
undecided, this Court has faced the question of judicial review, in
Touby v. United States, 111 S. Ct. 1752 (1991), and found it to
be a necessary part of a valid delegation of legislative authority.
This was the position of the District Court which found it implicit
in the reasoning of the Touby majority that “judicial review
lentes
8
perfects a delegated law-making scheme by assuring that the
exercise of such power remains within statutory bounds.” See, Op.
at 9612. This reasoning found express voice in the two-justice
concurrence: “Because of the severe impact of criminal laws on
individual liberty, I believe that an opportunity to challenge a
delegated lawmaker’s compliance with congressional directives is
a constitutional necessity when administrative standards are en-
forced by criminal law.” Touby, 111 S. Ct. at 1758 (Marshall, J.,
concurring).
The District Court held that while judicial review of some
decisions of executive and administrative agencies may be pre-
cluded, (See, Webster v. Doe, 486 U.S. 592 (1988), a broad
statutory ban on all judicial review would permit the delegatee to
act with unfettered discretion, ignoring the “intelligible principle”
laid down in Congress’ delegation. Congress may not abdicate its
constitutional duty to make laws, permitting the executive agency
to make and enforce laws through the rule-making power, and
render the judiciary powerless to determine whether the actions
are within the scope of the delegation. The District Court also
decided that if the need for judicial review was not implicit in
Touby, this Court would have avoided the issue by holding that
judicial review was not required to satisfy the separation of powers
doctrine.
Il
THE DECISION OF THE NINTH CIRCUIT CONFLICTS
WITH THE SECOND AND FIFTH CIRCUITS
The decision of the Court of Appeals conflicts with decisions of
other circuits. These other courts, in similar circumstances, have
held that judicial review of a Congressional delegation of author-
~ ity is constitutionally required. Judge Mansfield, relying upon this
Court's decision in American Power and Light Co. v. SEC, 329
U.S. 90 (1946), observed that the combination of an “intelligible
principle” and judicial review to insure compliance “assures that
the delegatee will not act capriciously or arbitrarily,” and that
“[p]rivate rights are protected by access to the courts to test the
application of the policy. ...” United States v. Pastor, 557 F.2d
OO hn mel Naw table Mall
9
930, 941 (2d Cir. 1977). The Fifth Circuit relied upon Pastor in
holding that judicial review of the detailed procedures would
provide “adequate safeguards against arbitrary action.” United
States v. Gordon, 580 F.2d 827, 839 (Sth Cir. 1978). Finally, in
United States v. Widdowson, 916 F.2d 587,591 (10th Cir. 1990),
judgment vacated on other grounds in light of Touby, 112 S. Ct.
39 (1992), the Tenth Circuit hypothesized that without judicial
review of agency action, the delegatee [DEA] may act with
unfettered discretion and place a substance as innocuous as
aspirin on the controlled substances list and the decision could not
be challenged. The decision of the Ninth Circuit Court of
Appeals in this case permits just such actions by immunizing the
Secretary's listing decisions under the EAA from judicial review.
The Court of Appeals misplaced its reliance upon cases up-
holding delegations that permitted preclusion of judicial review of
some agency decisions. Only the Export Administration Act
totally precludes judicial review even to the extent of denying
courts the power to determine if the will of Congress is being met.
If the constitutional principle limiting delegations of legislative
power is sO vague as to give rise to such conflict in the lower
federal courts, a clarification by this Court is necessary to resolve
the conflict. Simply because, in limited instances, some delegated
functions may be exempt from judicial review, as observed by the
Court of Appeals, [Op. at 9616] it does not follow a fortiori that
the totality of such functions may be immunized from judicial
scrutiny and left solely to legislative control. The underpinnings of
Touby, Mistretia v. United States, 488 U.S. 361 (1989), and
Skinner v. Mid-American Pipeline Co., 490 U.S. 212 (1989), are
based upon fundamental principles necessary to preserve our
tripartite system.
10
CONCLUSION
It cannot be that the legislature is the interpreter of the legality
of its own actions for this would result in the self validation of
whatever action the legislature chooses to take. Justice Marshall
noted the fallacy of such unrestrained power almost two hundred
years ago:
The powers of the legislature are defined and limited; and
that those limits may not be mistaken or forgotten, the
constitution is written. To what purpose are powers limited,
and to what purpose is that limitation committed to writing;
if these limits may, at any time, be passed by those intended
to be restrained?
Marbury v. Madison, 5 U.S. 137, 176 (1803).
For all of the above reasons this petition for Writ of Certiorari
should be granted.
Respectfully submitted,
By: WEYMAN I LUNDQUIST
(Counsel of Record)
HELLER, EHRMAN, WHITE &
MCAULIFFE
333 Bush Street
San Francisco, CA 94104-2878
(415) 772-6000
Attorneys for Petitioner
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A-l
For Publication
United States Court of Appeals
for the Ninth Circuit
United States of America,
Plaintiff- Appellant,
vs.
Ognian Bozarov,
Defendant-Appellee.
No. 91-50646
D.C. No.
CR-83-0908-WDK-4
Opinion
Appeal from the United States District Court
For the Central District of California
William D. Keller, District Judge, Presiding
Argued and Submitted
July 6, 1992—Pasadena, California
Filed August 10, 1992
Before: Joseph T. Sneed and Dorothy W. Nelson, Circuit
Judges, and Oliver W. Wanger, District Judge*
SUMMARY
Individual Rights/Constitutional Rights/ Administrative
Law/Judicial Review
Reversing and remanding a district court judgment, the court
of appeals held that Export Administrative Act does not violate
the nondelegation doctrine or appellant’s due process rights.
*The Honorabie Oliver W. Wanger, United States District Judge for
the Eastern District of California, sitting by designation.
A-2
Ognian Bozarov was indicted for conspiring to violate the
Export Administration Act (EAA) for his role in a scheme to
transport computer disc manufacturing equipment in Bulgaria.
The relevant commodities were listed on the Commodity Control
List (CCL) subject to export control for national security rea-
sons. Bozarov pled guilty to the charges and filed a motion to
dismiss the indictment, arguing that the EAA’s preclusion of
judicial review violated the constitutionally mandated separation
of powers and the due process clause of the fifth amendment. The
district court dismissed the indictment and the government
appealed.
[1] The court rejected the argument that Bozarov did not have
standing to challenge the constitutionality of the EAA. [2]
Similarly rejected was the government’s contention that Bozarov
was not entitled to bring a facial challenge to the EAA because
doing so required him to raise the claims of third parties. [3]
Turning to the merits of the appeal and noting that the Supreme
Court has upheld a number of statutes precluding judicial review,
the court acknowledged that the Supreme Court has not yet
squarely confronted the question of whether a delegation of
legislative power to the executive that is statutorily exempt from
judicial review violates the nondelegation doctrine. [4] The court
noted that the language of the APA also suggests that Congress
intended certain agency actions to be immune from judicial
review. The court thus concluded that both APA and the fact that
the Supreme Court has upheld statutory schemes precluding
judicial review suggest that preclusion of review may in some
cases be constitutional. [5] The court was not persuaded bv
Bozarov’s argument that the fact that the delegation at issue here
eventually leads to criminal sanctions counseled in favor of his
position. [6] Although the regulation calls the statutory penalties
into play, the statute, not the regulation, creates the offense and
imposes punishment for its violation. Consequently, the fact that
the government's decisions under the EAA in a sense make it
possible for criminal liability to be imposed does not mean that
the EAA violates the nondelegation doctrine. [7] The fact that
the EAA involves matters of foreign policy and national security
also counseled in favor of upholding the Act’s preclusion of
judicial review. [8] The court’s conclusion was bolstered by the
ub "Cae dita Sealee inet ateieditas
ieee, WE RIND A wink A tn ald.
é wr otis
A-3
fact tha certain limited types of judicial review are available under
the EAA despite the Act’s seemingly absolute preclusion of
review.
[9] Bozarov’s argument that the preclusion of judicial review
violated his right to due process was also meritless. The decision
to control a commodity does not involve a defendant’s individual
rights and is not an element of the criminal offense in the pending
case.
COUNSEL
Andrew G. McBride, United States Department of Justice,
Washington, D.C., for the plaintiff-appellant.
Weymant I. Lundquist, Heller, Ehrman, White & McAuliffe,
San Francisco, California, for the defendant-appellee.
OPINION
D.W. NELSON, Circuit Judge:
OVERVIEW
The United States appeals the dismissal of its indictment
charging Ognian Bozarov with conspiracy to violate the Export
Administration Act of 1979 (EAA or Act), 50 U.S.C. § 2401 et
seq., for his role in a scheme to transport computer disc manufac-
turing equipment to Bulgaria. The district court dismissed the
indictment based on its determination that the EAA was uncon-
stitutional under the nondelegation doctrine because it delegated
to the Secretary of Commerce legislative authority to control
exports and prohibited judicial review of the Secretary’s decisions.
We reverse the decision of the district court because we believe
that the Act’s preclusion of judicial review does not violate the
nondelegation doctrine. Because we interpret the Act to permit
courts to review colorable constitutional challenges to the Act and
claims that the Secretary has acted completely outside the scope
of his delegated powers, we conclude that the EAA satisfies
constitutional requirements.
A-4
FACTUAL AND PROCEDURAL BACKGROUND
The Export Administration Act
The EAA authorizes the executive branch to impose export
controls for reasons of national security, foreign policy, or domes-
tic short supply. 50 U.S.C. §§ 2402(2), (10) and 2404-06. Con-
gress delegated substantial authority under the Act to the
Secretary of Commerce. In particular, the EAA requires the
Secretary to establish and maintain a Commodity Control List
(CCL) and to issue validated licenses for the export of listed
goods and technologies.
The Act contains an elaborate set of criteria and internal
procedures which governs the Secretary’s imposition of export
controls. 50 U.S.C. § 2403. For example, the Secretary must
make a determination as to the foreign availability of the goods
and consider whether the goods are being restricted pursuant to a
multilateral agreement. 50 U.S.C. § 2403(c), 2404(e). Addition-
ally, controls imposed for reasons of national security must be
compiled in coordination with other Departments and agencies
and be coordinated with allies through international negotiations
with the Coordinating Committee for Multilateral Export Con-
trols (COCOM). 50 U.S.C. § 240-4(c) (3). The Secretary must
periodically review the CCL to reassess the foreign availability of
goods and the continuing need for national security controls. The
Secretary must also furnish detailed reports with respect to each
item monitored and submit annual reports to Congress concerning
the administration of the EAA. 50 U.S.C. §§ 2406(b), 2413.
The EAA also contains detailed procedures for the processing
of applications for validated export licenses for goods listed on the
CCL. 50 U.S.C. § 2409. For example, the EAA prescribes time
limits for decision, provides procedures for a right of appeal of a
denial to the Secretary, and permits an applicant to respond to a
denial in writing before a final determination is made. If the
Secretary fails to act on an application in a timely fashion, an
applicant may seek equitable relief in federal district court. The
Secretary’s denial of a validated license “shall be final and is not
subject to judicial review.” 50 U.S.C. §2412(e). Indeed, all
functions exercised under the Act are explicitly excluded from
A-5
judicial review and from the protections of the Administrative
Procedure Act (APA). 50 U.S.C. § 2412(a). A willful violation
of the Act or any regulation, order or license issued thereunder is
a felony punishable by fine and/or imprisonment for not more
than ten years. 50 U.S.C. § 2410(b).
Bozarov’s Alleged Violation of the EAA
Ognian Bozarov is an international trade official who resides in
Sofia, Bulgaria. In 1981, while serving as the deputy general
manager of a trade organization devoted to developing industry in
Bulgaria, Bozarov entered into negotiations with a Dutch com-
pany for the purchase of computer disc manufacturing equipment.
The Dutch company then contracted with an American company
to supply the equipment. Although the American company ap-
pears to have submitted an application for an export license,
Bozarov alleges that he was eventually told by his American and
Dutch partners that the equipment did not require a license. The
relevant commodities, however, were indeed listed on the CCL
for national security reasons. After the goods were shipped in late
1982 and early 1983, a ten count indictment was issued against
Bozarov and four others on November 3, 1983.
Despite the issuance of a warrant for the arrest of all the
defendants, Bozarov was apparently never notified of the charges
against him by the United States Attorney. He learned of the
indictment only when the International Trade Association issued
a temporary order denying all export privileges to Bozarov and his
co-defendants. Bozarov protested the order on the grounds that he
had not been a party to any conspiracy and had acted in good
faith. In 1986, Bozarov’s export privileges were restored by an
administrative law judge in the Commerce Department. Appar-
ently under the impression that the charges against him had been
resolved in his favor by this decision, Bozarov applied for and was
granted a visa to travel to the United States to accept an
international trade award. This 1990 trip to Puerto Rico was
completed without incident. In December 1990, Bozarov was
selected to host a trade delegation in San Francisco and again
obtained a travel visa from the United States embassy in Bulgaria.
Bozarov was arrested when he arrived in San Francisco.
A-6
On January 4, 1991, Bozarov entered a plea of not guilty. On
May 20, Bozarov filed a motion to dismiss the indictment, arguing
that the EAA’s preclusion of judicial review violated the constitu-
tionally mandated separation of powers and the due process
clause of the Fifth Amendment. After briefing and hearings, the
district court rendered its decision in a telephone conference call
on June 11. The district court concluded that because the EAA
precluded judicial review, the Act was an unconstitutional delega-
tion of legislative power to the Executive. The judge based his
decision in part on the Supreme Court’s recent decision in Touby
v. United States, 111 S.Ct. 1752 (1991), finding implicit in the
majority’s reasoning the principle that “judicial review perfects a
delegated law-making scheme by assuring that the exercise of
such power remains within statutory bounds.” The district court
also rejected the government’s argument that preclusion of judi-
cial review under the EAA was constitutional, even if review was
otherwise required under the nondelegation doctrine, because the
Secretary’s decisions under the Act constituted nonjusticiable
policital questions. The court reasoned that application of the
political question doctrine presupposes the constitutionality of the
underlying statute. Because he found the Act unconstitutional
under the nondelegation doctrine, the district judge did not
consider Bozarov’s due process argument. The district court then
dismissed the indictment. This appeal followed.
STANDARD OF REVIEW
All the questions presented on this appeal are pure questions of
law subject to de novo review. United States v. McConney, 728
F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824
(1984).
DISCUSSION
I. Bozarov’s standing to challenge the constitutionality of the
EAA
[1] As a preliminary matter, the government argues that
Bozarov’s failure to pursue administrative avenues for relief
means that he cannot now challenge the statute’s preclusion of
te ct abet Maki Aa Re CE a
A-7
judicial review. We disagree. First, Bozarov did not realize that he
was an “exporter” who needed to seek a license, and because he
did not seek a license he had no adverse decision to appeal
through the EAA’s review procedures. Second, raising a constitu-
tional challenge before the agency would have been a futile
exercise because an agency has no authority to declare its gov-
erning statute unconstitutional. The Supreme Court has recog-
nized that “[c]Jonstitutional questions obviously are unsuited to
resolution in administrative hearing procedures and, therefore,
access to the courts is essential to the decision of such questions.”
Califano v. Sanders, 430 U.S. 99, 109 (1977). We have thus
ruled on constitutional challenges to statutes even when the
challenge was not raised in an earlier administrative proceeding.
See, e.g. Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir. 1985).
[2] The government also contends that Bozarov is not entitled
to bring a facial challenge to the EAA because doing so requires
him to raise the claims of third parties. We reject this argument.
A defendant in a criminal proceeding is entitled to “insist that his
conduct be judged in accordance with a rule that is constitution-
ally valid.” Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 8;
accord P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart &
Wechsler’s The Federal Courts and the Federal System 166 (3rd
ed. 1988). Thus in INS v. Chadha, 462 U.S. 919, 935-36 (1983),
the Court permitted Chadha to raise separation-of-powers claims
even though they reflected the interests of the executive branch,
! The government's reliance on Falbo v. United States, 320 U.S. 549
(1944), is misplaced. There, the Court refused to hear Falbo’s constitu-
tional challenge to his military classification not because he had failed to
exhaust his administrative remedies, but because he had not yet been
injured by the agency's action because he had not yet been inducted into
the military. In contrast, Bozarov has already been indicted, and thus
has been directly injured by the statute that he claims is unconstitu-
tional. Yakus v. United States, 321 U.S. 414 (1944), is also distinguisha-
ble because judicial review of the petitioner's constitutional challenge
was available; Congress had simply specified a different court in which
the petitioner should have brought that challenge. If we cannot entertain
Bozarov’s constitutional argument, that argument will go unheard by
any court.
A-8
rather than Chadha’s own private interests. The Court reouired
only that Chadha demonstrate “injury in fact and a subs,antial
likelihood that the judicial relief requested will prevent or redress
the claimed injury.” Jd. at 936 (citation omitted). Bozarov has
unquestionably been injured, see Hart & Wechsler, supra, and
invalidation of the EAA will prevent him from being convicted.
He therefore has standing to challenge the EAA as a whole,
rather than merely as it is applied to him.” In sum, we conclude
that Bozarov's constitutional challenges are properly before this
court. We now proceed to the merits of Bozarov’s challenge to the
constitutionality of the EAA.
II. Does the EAA violate the nondelegation doctrine because it
precludes judicial review?
The nondelegation doctrine is rooted in the principle of separa-
tion of powers that underlies our tripartite system of government.
“The Constitution provides that ‘[a]ll legislative Powers herein
granted shall be vested in a Congress of the United States,’ U.S.
Const., Art. I, § 1, and we have long insisted that ‘the integrity
and maintenance of the system of government ordained by the
Constitution’ mandate that Congress generally cannot delegate its
legislative power to another Branch.” Mistretta v. United States,
488 U.S. 361, 371-72 (1989) (citing Field v. Clark, 143 U.S. 649,
692 (1892)). The Court has also emphasized, however, that the
nondelegation doctrine does not prevent Congress from obtaining
the assistance of its coordinate branches through delegations of
substantial enforcement and policymaking authority. “So long as
Congress ‘shall lay down by legislative act an intelligible principle
to which the person or body authorized to [exercise the delegated
authority] is directed to conform, such legislative action is not a
forbidden delegation of legislative power.’ ” Mistretta, 488 U.S. at
372 (citing J.W. Hampton, Jr. & Co. v. United States, 276 U.S.
? The government cites a number of cases holding that the defendant
could not prevail on a facial challenge outside the First Amendment
context without showing that the statute was unconstitutional as applied
to him. See, e.g. United States v. Salerno, 481 U.S. 739, 745 (1987).
Those cases have no application in this context, since Bozarov does
claim that the statute is unconstitutional as applied to him.
POET ee OO, Care
A-9
394, 409 (1928)). Congress may therefore delegate under broad
general directives so long as it “clearly delineates [the] general
policy, the public agency which is to apply it, and the boundaries |
of this delegated authority.” American Power & Light Co. v. SEC,
329 U.S. 90, 105 (1946). °
[3] This appeal involves a question that the Supreme Court
apparently has not yet squarely confronted; does a delegation of
legislative power to the executive that is statutorily exempt from
judicial review violate the nondelegation doctrine? In essence, this
question turns on the purpose of requiring Congress to lay down
n “intelligible principle.” The government argues that the pur-
pose of an intelligible principle is simply to channel the discretion
of the executive and to permit Congress to determine whether its
will is being obeyed. Bozarov contends that the purpose of
requiring an intelligible principle is to permit a court to ascertain
whether the will of Congress has been obeyed. We believe that
the government has the better of the argument.‘
The Supreme Court has upheld a number of statutes that
precluded judicial review. In Briscoe v. Bell, 432 U.S. 404 (1977),
for example, the Court held that preclusion of judicial review of
the Attorney General's decision that a state was subject to the
Voting Rights Act was constitutionally permissible. See also
Morris v. Gresette, 432 U.S. 491 (1977). In both Webster v. Doe,
486 U.S. 592 (1988), and Heckler v. Chaney, 470 U.S. 821
>The Supreme Court has invalidated statutes on nondelegation
grounds only twice in the Court’s history. A.L.A. Schechter Poultry Co.
v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan,
293 U.S. 388 (1935). Although the nondelegation doctrine appears to
have “fallen into... desuetude” since these two decisions, at least one
member of the Court appears to be calling for a reinvigoration of the
doctrine. Industrial Union Dep't v. American Petroleum Inst., 448 U.S.
607, 686 (1980) (Rehnquist, J., concurring) (“We ought not to shy
away from our judicial duty to invalidate unconstitutional delegations of
legislative authority”).
“A Massachusetts district court has also rejected a nondelegation
challenge to the constitutionality of the EAA. United States v. Moller-
Hutcher, 560 F.Supp. 550 (D.Mass. 1983).
A-10
(1985), the Court declined to hear most of the complainants’
challenges because it concluded that the relevant statutes pre-
cluded judicial review; the Court did not suggest that this preclu-
sion was constitutionally objectionable. A number of other cases
have concluded that statutes immunized agency actions from
judicial review. See, e.g., United States v. Erika, 456 U.S. 201
(1982); Southern Ry. Co. v Seaboard Allied Milling Corp., 442
U.S. 444 (1979); Schilling v. Rogers, 363 U.S. 666 (1960).
[4] Furthermore, the language of the APA itself also suggests
that Congress intended that certain agency actions be immune
from judicial review. The APA expressly states that the judicial
review provisions of the APA apply except to the extent that
statutes preclude judicial review. 5 U.S.C. § 701(a)(1). Both this
language and the fact that the Supreme Court has upheld
Statutory schemes that preclude judicial review suggest that
preclusion of review may in some cases be constitutional.
Bozarov argues that these cases are not dispositive of the
question here. Perhaps most important, the bulk of these cases
did not involve direct challenges to the statutes’ preclusion of
judicial review. The Court therefore did not analyze the require-
ments of the nondelegation doctrine in most of these cases.
However, the fact that the Court and Congress both accept that
judicial review may be unavailable at least suggests that the
availability of review is not always a constitutional necessity.
Moreover, although the case did not involve a nondelegation
challenge, the Court expressly concluded in Briscoe, 432 U:S. at
414, that the statute’s preclusion of judicial review was
constitutional.
Bozarov also argues that the vast majority of these cases
involved enforcement actions—such as the FDA deciding
whether to initiate an investigation of a drug in Heckler—and not
the kind of legislative decisionmaking arguable at issue in this
case. However, Bozarov cites no authority for drawing a distinc-
tion between the exercise of executive authority and legislative
authority when evaluating the need for judicial review, and we
conclude that this argument is not very compelling. In both
contexts, the central concern is that the agency exercise power
only within the scope of its authority and within the confines of
at ale
A-11
constitutional norms. Moreover, the primary concern of the
nondelegation doctrine is not that the executive exercise no
lawmaking authority, indeed, the Court has recognized that
Congress must obtain the assistance of its fellow branches so that
the government may function properly. Mistretta, 488 U.S. at 372.
The nondelegation doctrine is satisfied if Congress exercises the
“essentials of the legislative function” by articulating an intelligi-
ble principle to guide the interstitial decisionmaking of the execu-
tive. Opp Cotton Mills v. Administrator, 312 U.S. 126, 145
(1941) (emphasis added).
Bozarov contends that judicial review is also required to satisfy
the nondelegation doctrine and points to a number of cases in
which the Court held that no unconstitutional delegation of
legislative authority had occurred because Congress provided the
“administrative agency with standards guiding its actions such
that a court could ‘ascertain whether the will of Congress has
been obeyed’.” Skinner v. Mid-America Pipeline Co., 490 U.S.
212, 218 (citations omitted); see also American Power & Light,
329 U.S. at 105; Yakus v. United States, 321 U.S. 414, 426
(1944). We do not believe that these cases support the broad
proposition that Bozarov urges upon us. While these cases clearly
suggest that the availability of judicial review is a factor weighing
in favor of upholding a statute against a nondelegation challenge,
we do not believe that they can be read for the proposition that
judicial review is always constitutionally required. Perhaps most
important, the statutes at issue in Skinner, Yakus, and American
Power did not explicitly preclude judicial review. Thus, none of
these cases had occasion to address the issue of whether judicial
review is always required, and none of the cases explicitly con-
cluded that judicial review is mandatory.
We also do not agree with Bozarov that the Supreme Court's
decision last term in Touby, 111 S.Ct. 1752, made the require-
ment of judicial review explicit. The petitioners in that case
argued that a provision of the Controlled Substances Act, which
permits the Attorney General to schedule dangerous new drugs on
its list of controlled substances on a temporary basis, was uncon-
stitutional because it barred judicial review of that decision. The
Court rejected the challenge because it concluded that judicial
A-12
review was indeed possible under limited circumstances. In a
concurring opinion, however, Justice Marshall, joined by Justice
Blackmun, concluded “that an opportunity to challenge a dele-
gated lawmaker's compliance with congressional directives is a
constitutional necessity when administrative sanctions are en-
forced by criminal law.” Touby, 111 S.Ct. at 1758. Justice
Marshall emphasized that “judicial review perfects a delegated
lawmaking scheme by assuring that the exercise of such power
remains within statutory bounds.” /d Both Bozarov and the
district judge concluded that the basis for Justice Marshall's
concurrence — that judicial review is a constitutional necessity —
was “implicit in the majority's reasoning” as well.°
We believe that Bozarov and the district judge are mistaken in
the importance they attach to Justice Marshall's opinion. First,
the opinion was simply a concurrence; the majority is under no
obligation to address or correct errors in either a concurring or
dissenting opinion. Second, it seems unlikely that the majority
examined the statute to see if review was available because it
believed that review was required, it probably considered the
statutory issue in order to avoid having to decide the constitu-
tional question of the necessity of judicial review. See, e.g, Burns
v. United States. 111 S.Ct. 2182, 2187 (1991) (courts will avoid
reaching constitutional questions if a permissible statutory inter-
pretation is available).
[5] We are also not persuaded by Bozarov’s argument that the
fact that the delegation at issue here eventually leads to criminal
sanctions counsels in favor of his position. It is true that broad
delegations might be more suspect in cases involving criminal
sanctions. See, e.g., United States v. Robel, 389 U.S. 258, 275
*Bozarov argues that if the majority did not agree with Marshall, it
would have simply decided the case on the ground that judicial review is
not required. He believes that the majority would not have examined the
statute to see if judicial review was available if it did not believe that
review was required. He also suggests that it is “inconceivable” that the
majority would not have addressed Marshall's assertion in the majority
opinion if it disagreed with his assertion that judicial review was a
constitutional necessity.
A-13
(1967) (Brennan, J., concurring) (“The area of permissible
indefiniteness [of delegation] narrows, however, when the regula-
tion invokes criminal sanctions and potentially affects fundamen-
tal rights ... [T]he numerous deficiencies connected with vague
legislative directives ... are far more serious when liberty and the
exercise of fundamental rights are at stake."’) (citations omitted);
Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (“discretion to
make regulations to guide supervisory action in such matters
[ appointment of conservators] may be constitutionally permissi-
ble while it might not be allowable to authorize creation of new
crimes in uncharted fields.”). According to Bozarov, the Secre-
tary essentially has discretion to criminalize any conduct he
chooses, and it is thus possible that the Executive could create
purely political crimes entirely free from judicial review.
[6] However, “[i]t is well-established that Congress may
constitutionally provide a criminal sanction for the violation of
regulations which it has empowered the President or an agency to
promulgate.” United States v. Gurrola-Garcia, 547 F.2d 1075,
1079 (9th Cir. 1976). Moreover, the Secretary of Commerce is
not creating a crime when he exercises his authority under the
EAA; Congress created the crime when it prohibited the export
of goods without a valid license and set the penalties for that
crime. All the Secretary does is decide which penals require a
license. Therefore, “[a]ithough ‘the regulation calls the statutory
penalties into play, the statute, not the regulation, creates the
offense and imposes punishment for its violation.”” Jd. at 1077;
see also United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir.
1990) (the decision to list a commodity on the CCL is not an
element of the criminal offense). In a challenge brought to a
similar statute, this circuit emphasized that the fact that the
delegated authority might enable the executive to promulgate
regulations whose violation leads to criminal liability did not alter
its conclusion that the statute did not unconstitutionally delegate
legislative power to the executive. Gurrola-Garcia, 547 F.2d at
1078 (nondelegation challenge to Mutual Security Act of 1954);
see also Samora v. United States, 406 F.2d 1095 (Sth Cir. 1969)
(same). We therefore conclude that the fact that the Secretary’s
decisions under the EAA in a sense make it possible for criminal
A-14
liability to be imposed does not mean that the EAA violates the
nondelegation doctrine.
[7] The fact that the EAA involves matters of foreign policy
and national security also counsels in favor of upholding the Act’s
preclusion of judicial review. Mandel, 914 F.2d at 1222 (“admin-
istrative decisions under the EAA implicate national security
concerns and foreign policy considerations”). In upholding a
broad delegation under the Mutual Security Act, the Ninth
Circuit emphasized “the President's traditional dominance in and
responsibility for foreign affairs.” Gurrola-Garcia, 547 F.2d at
1078. “[B]ecause of the changeable and explosive nature of
contemporary international relations, ... Congress — in giving
the Executive authority over matters of foreign affairs — must of
necessity paint with a brush broader than that it customarily
wields in domestic areas.” Zemel v. Rusk, 381 U.S. 1, 17 (1965).
In C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 111
(1948), the Supreme Court emphasized that foreign policy deci-
sions are “wholly confided by our Constitution to the political
departments of the Government, Executive and Legislative.”
Permitting Congress broadly to delegate decisions about con-
trolled exports to an agency makes sense; it would be impossible
for Congress to revise the CCL quickly enough to respond to the
fast-paced developments in the foreign policy arena. Moreover,
the need for uniformity in the realm of foreign policy is particu-
larly acute; it would be politically disastrous if the Second Circuit
permitted the export of computer equipment and the Ninth
Circuit concluded that such exports were not authorized by the
EAA. Because the Supreme Court has consistently emphasized
that broad delegations are appropriate in the foreign policy arena
because of the political nature of the decisions and the compelling
need for uniformity, the case for mandatory judicial review is even
less compelling.
[8] In sum, we believe that the Supreme Court cases uphold-
ing judicial preclusion of agency decisions, the language of the
APA, and the fact that the EAA involves foreign policy issues
support our conclusion that the EAA’s preclusion of judicial
A-15
review is constitutional.® We note in closing that our conclusion is
bolstered by the fact that certain limited types of judicial review
are available under the EAA despite the Act’s seemingly absolute
preclusion of review. First, colorable constitutional claims may be
reviewed by the courts even when a statute otherwise precludes
judicial review. Webster, 486 U.S. at 602-05.’ Therefore, if the
Secretary began to deny licenses for impermissible reasons (such
as denying all license applications submitted by a minority
group), that claim would be reviewable in the courts. Second, we
believe that claims that the Secretary acted in excess of his
delegated authority under the EAA are also reviewable. The
District of Columbia Circuit has also adopted this position in the
context of the EAA. See Dart v. United States, 848 F.2d 217
(D.C. Cir. 1988) (Assistant Secretary had no authority to reverse
an ALJ’s judgment in favor of an exporter, because the EAA only
permitted the Secretary to affirm, modify or vacate decision of an
ALJ); see also Leedom v. Kyne, 358 U.S. 184 (1958) (court may
review whether agency acted in excess of its delegated powers) .*
Therefore, if the Secretary began controlling exports for reasons
*We emphasize that our holding today is limited to the EAA’s
preclusion of judicial review, we express no opinion on the constitution-
ality of other statutes that prohibit all review.
"For example, the government has concluded that the courts may
review Bozarov’s nondelegation challenge to the EAA because it
presents a colorable constitutional claim.
*The government suggested at oral argument that the Court’s recent
decision in Board of Governors v. MCorp Financial, 112 S.Ct. 459
(1991), means that claims that an agency acted outside the scope of
delegated authority are not reviewable if the statute precludes judicial
review. We do not believe that MCorp precludes judicial review of this
type of claim under the EAA. The Court emphasized that preclusion of
review was acceptable in part because the petitioner had a meaningful
and adequate opportunity for judicial review of the regulation that he
argued was promulgated in excess of the agency’s statutory authority.
The EAA presents an entirely different situation; petitioners have no
other opportunity to challenge regulations or their applications. We
therefore believe that Dart still sets out the correct standard to be
applied to the EAA.
A-16
other than national security, foreign policy or domestic short
supply, a claim challenging that action would be reviewable as
well. Because these two types of review are available, we believe
that the EAA’s preclusion of judicial review does not violate the
nondelegation doctrine.”
III. Does the preclusion of judicial review violate Bozarov’s
right to due process?
As an initial matter, the parties dispute whether the due
process issue is properly before this court. Although Bozarov
challenged the indictment on due process grounds and the parties
briefed this issue below, the district judge did not render an
opinion on this issue and Bozarov chose not to brief it thoroughly
before this court. We conclude that we may consider this claim
now, the due process issue is inextricably bound up with the
separation of powers issue and deciding the entire case now
furthers our policy against piecemeal litigation through interlocu-
tory appeals. See TransWorld Airlines, Inc. v. American Coupon
Exchange, Inc., 913 F.2d 676, 680-81 (9th Cir. 1990) (court
identified these concerns when deciding to what extent to exercise
its jurisdiction.
[9] Identifying Bozarov’s due process challenge is somewhat
difficult. He appears to argue at one point that the regulation
violates the due process clause because it does not give fair notice
of the forbidden conduct. This argument is meritless, the CCL is
published in the Code of Federal Regulations at 15 C.F.R.
§ 399.1 Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275,
283, n.2 (1978) (nothing that only notice of prohibited conduct
provided by the Clean Air Act was publication of proposed
emission standards in the Federal Register).
*The government also argues that even if the nondelegation doctrine
requires judicial review, that principle is not applicable in this case
because the Secretary’s decisions under the Act represent nonjustifiable
political questions. Because we conclude that the Act does not violate
the nondelegation doctrine, we need not reach the question of the impact
of the political question doctrine on this case.
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A-17
Bozarov apparently also argues that the classification of this
equipment on the CCL had no basis in fact and that the
preclusion of review of this classification violates his due process
rights. However, two Ninth Circuit cases have settled the ques-
tion whether the denial of judicial review of the classification
violates due process. In United States v. Spawr Optical Research,
Inc. 864 F.2d 1467, 1473 (9th Cir. 1988), cert. denied, 493 U.S.
809 (1989), the court concluded that because “the licensing issue
is not an element of the charged offenses,” the petitioner’s due
process rights were not violated by the trial court’s acceptance of
the Secretary is licensing determination in the prosecution of the
defendants. In Mandel, the court distinguished United States v.
Mendoza-Lopez, 481 U.S. 828 (1987) and Estep v. United States,
327 U.S 114 (1946), in which the Supreme Court held that
“ ‘where a determination made in an administrative proceeding is
to play a critical role in the subsequent imposition of a criminal
sanction, there must be some meaningful review of the adminis-
trative proceeding.’ ” Mandel, 914 F.2d at 1221 (citation omit-
ted). The court concluded that this principle was not applicable to
a prosecution brought under the EAA, because the decision to
control a commodity “does not involve the defendant’s individual
rights and is not an element of the criminal offense in the pending
case.” Id. Spawr II and Mandel are dispositive of Bozarov’s due
process challenge and we reject his contention.
CONCLUSION
We conclude that the Export Administration Act does not
violate the nondelegation doctrine or Bozarov’s due process rights.
The district court’s decision is reversed.
REVERSED and REMANDED.
A-18
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Honorable William D. Keller, Judge Presiding
UNITED STATES OF AMERICA,
Plaintiff.
vs.
OGNIAN BOZAROY, et al.,
Defendants.
NO. CR 83-908-WDK
REPORTER'S TRANSCRIPT OF TELEPHONIC
PROCEEDINGS
Los Angeles, California
Tuesday, June 11, 1991
LORAINE M. DALEY, CSR, RPR
Official Court Reporter
453 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
(213) 620-9001
A-19
APPEARANCES: (Via Telephone)
In behalf of the Plaintiff:
LOURDES G. BAIRD
United States Attorney
ROBERT L. BROSIO
Assistant United States Attorney
Chief, Criminal Division
NICOLA T. HANNA
Assistant United States Attorney
1300 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
In behalf of Defendants:
HELLER, EHRMAN, WHITE & McAULIFFE
BY: WEYMAN I. LUNDQUIST
333 Bush Street
San Francisco, California 94104
A-20
LOS ANGELES, CALIFORNIA; TUESDAY,
JUNE 11, 1991; 4:30 P.M.
(Telephonic Conference. )
THE COURT: This is Judge Keller. Can I have your appear-
ances, please?
MR. HANNA: Yes, Nick Hanna for the United States, your
Honor.
MR. LUNDQUIST: Weyman Lundquist for the defendant,
your Honor.
THE COURT: Good afternoon. I am sorry for the delay, but
various and sundry reasons, including the complexity of this
analysis, have delayed me. I am going to give you a ruling with
some analysis, and then we can address what needs to be.
The first issue I am going to address is the separation of powers
issue. As I perceive or understand the defendant’s motion, as it
relates to this particular subject, the defendant moves to dismiss
the indictment because it violates Article I, Section 1 of the
Constitution on its face and as applied to the defendant. In
particular, you referenced that portion of the Constitution, which
reads in part:
“All legislative powers herein granted shall be vested in a
Congress.”
Again, I think your argument continues as the defendant with
the contention that the Export Administration Act, which I am
going to call the EAA hereafter because it is a bit shorter, is an
unconstitutional delegation of the legislative authority to, as you
denominated, “create crimes” to the Executive branch in viola-
tion of the separation of powers doctrine because the EAA does
not provide for judicial review — in fact, the EAA explicitly
prohibits judicial review.
In response to your framing, if you will, of the separation of
powers issue, the government addresses the problem by leapfrog-
ging, in a sense, to the issue of political question. They character-
ize the issue as the defendant is asking for judicial review of a
political question.
A-21
I think that they are putting the analytical cart in front of the
horse when they do this, and I think that was the thrust of your
argument. Mr. Lundquist, when last we visited here in the
courtroom on Friday, I believe it was.
MR. LUNDQUIST: Yes, your Honor.
THE COURT: It is my analysis, which I think I gravitated
toward in the hearing of last Friday, that it is inappropriate for the
Court to reach the political question issue at the juncture that is
urged by the government. The fact that the Executive branch’s
administration of the EAA may in some instances involve na-
tional security concerns does not mean that the Court cannot
examine the constitutionality of the EAA itself. It is fundamen-
tally the duty, as I stated last Friday, of the federal courts to
assess the constitutionality of congressional enactments as stated
by the Supreme Court of the United States in the dim dark past
in the case of Marbury versus Madison.
And I think that the fundamental analysis here is capsulized by
this statement.
“The political question doctrine may be applied by courts
to limit’ — and I underscore that —“‘limit the scope of
judicial inquiry under certain circumstances, but the doctrine
presupposes the constitutionality of the statute considered.”
And we get some enlightenment from Baker v. Carr, which is
probably the seminal political question case. And in particular,
that case, 369 U.S. 186 at 210-211, stated in part, and I quote:
“Much confusion results from the capacity of the political
question label to obscure the need for case-by-case inquiry.”
I am going to say parenthetically, | am going to allude to that
case-by-case inquiry later on. Closing my parentheticals and
continuing with the quotation:
“Deciding whether a matter has in any measure been
committed by the Constitution to another branch of govern-
ment, or whether the action of the branch exceeds whatever
authority has been committed is itself a delicate exercise in
A-22
constitutional interpretation, and is a responsibility of this
Court as ultimate interpreter of the Constitution.”
Now, fortuitously for the defendant, the Supreme Court en-
gaged in an analysis once again in this area in the recent case of
Touby, T-o-v-b-y, versus the United States, and in part I would
like to read from the Touby case where it states:
“The Constitution provides that all legislative powers
herein granted shall be vested in a Congress of the United
States.” They then cite U.S. Constitution Article I, Sec-
tion 1. “From this language, the Court has derived the
nondelegation doctrine, that Congress may not constitution-
ally delegate its legislative power to another branch of
government. The nondelegation doctrine is rooted in the
principle of separation of powers that underlines” — “under-
lines,” I should say, “our tripartite system of government.”
They then cite the Mistretta case, which I can’t help but add I
wish they hadn't decided it that way. But be that as it may and
moving on with my analysis.
“We have long recognized” — and this is the Supreme
Court I should say. “We have long recognized that the
nondelegation doctrine does not prevent Congress from seek-
ing assistance, within proper limits, from its coordinate
branches. Thus, Congress does not violate the Constitution
merely because it legislates in broad terms, leaving a certain
degree of discretion to executive or judicial actors. So long as
Congress lays down by legislative act an _ intelligible
principle. . .”
Again, parenthetically, this is an issue that has been addressed
heretofore and will be addressed by me in the balance of this.
Continuing with the quotation:
“...to which the person or body authorized to act is
directed to conform, such legislative action is not a forbidden
delegation of legislative power.”
As both of you know, this is not new law, and it merely sets
forth the standard by which to evaluate the constitutionality of a
delegation of power from the Legislative branch to the Executive
A-23
or Judicial branch. A delegation is proper if it lays down intelligi-
ble principles or minimal standards to which the branch delegated
to is directed to conform.
Based upon this line of authority, the defendant argues, as the
petitioner in Touby argued, that the purpose of requiring an
intelligible principle is to permit a court to ascertain whether the
will of Congress has been obeyed. I suppose you could argue that
the purpose of laying down an intelligible principle is to give the
coordinate branch the necessary directive to implement the dic-
tates of Congress, and that gives me some pause, pause enough to
say wait just a second. I want to talk to the law clerk.
(Brief Pause.)
THE COURT: Well, thanks for bearing with me. I am per-
suaded that the analysis that we have embarked upon here is
correct, albeit this is a gnarly area, as the young people would say,
gnarly, and | stress gnarly.
I suppose, to regain my train of thought, the argument would
be, according to defendant, that there is no point in requiring an
intelligible principle if there is no body to determine the principles
were followed. Faced with this argument, the majority in Touby
proceeded to uphold the statute at issue because it did allow for
judicial review.
As Justice Marshall noted in his concurrence, it is implicit in
the majority’s reasoning that, quote, judicial review perfects a
delegated-law making scheme by assuring that the exercise of
such power remains within statutory bounds. Because of the
severe impact of criminal laws on individual liberty, I believe that
an opportunity to challenge a delegated lawmaker’s compliance
with congressional directives is a constitutional necessity when
administrative standards are enforced by criminal law, closed
quotes.
I want to say that is a very good expression of the position that
is being tendered to this Court by the defendant, and I think I am
persuaded to accept it, albeit, the majority did not say this, and an
argument can be made that it must have been very clear to the
A-24
majority what Mr. Justice Marshall was saying the majority really
meant, albeit the majority didn’t say that that is what they really
meant. So, I can see this argument.
There is a place in the opinion, because I went through this
argument with the law clerk. There is a place in the opinion where
you can argue that the majority did, indeed, contemplate that
there would be a judicial review. Let me see if I can find it here.
(Brief Pause.)
THE COURT: I can't give you a page because this has — we
just have it off the Westlaw, but page 6 of our Westlaw, the
Supreme Court says in part:
“We reject petitioners’ argument. Although it”, and refers
to this section, “states that a temporary scheduling order is
not subject to judicial review, another section of the Act
plainly authorizes judicial review of a permanent scheduling
order.”
Which means that you could argue from that very definitely
that the majority has recognized that there has to be judicial
review, albeit they have not explicitly stated it as Marshall has,
they nevertheless have inferentially stated it because they
wouldn’t have set forth there what they did.
Now, I have got to tell you that I think I would have been a bit
more direct on this, but, most assuredly, I am not the last word on
this. And I can only give you my input, and I can see both sides,
which is the reason I say this and the reason I comment on some
of these issues is that where I am going to come out is, I am going
to find that this statute is unconstitutional on its face.
And I am going to say, most assuredly, that you need a circuit
court or the Supreme Court to take the next step here because I
am not in a position to do that. All I can do is give you my best
shot, and you are going to have to take it from there.
A-25
Continuing with the analysis:
Therefore because the EAA does not provide for and in fact
attempts to prohibit judicial review it is an unconstitutional
delegation of the legislative power to the Executive.
Now, I want to say from a pragmatic standpoint that the ruling
that I am making is the only possible ruling given the result if the
government's position is carried to its logical extreme. And by
that I mean this: Congress makes a delegation of legislative
authority to the Department of Commerce and sets forth intelligi-
ble procedures for the Secretary to follow in exercising the
delegated authority. And there is quite an intricate scheme set
forth by the Congress where the Secretary must undertake certain -
prescribed reviews and engage other entities or people, to include
the Department of Defense, in this review. So, it is quite thor-
ough, and I grant you that. There is no doubt about it. However,
the Secretary could then ignore Congress and act arbitrarily in
determining what should be a crime. Necessarily, the individual
who is indicted has no protection against the Secretary's arbitrary
decision because there is no judicial review of the Secretary's
action.
Congress could later, as we addressed at ihe time of our last
hearing on Friday, reduce or change the Secretary’s power, but it
would be too late for the wrongly or improperly indicted individ-
ual. The fact that the Secretary’s decision to create a crime could
be the result of a political question and all of the myriad
intricacies that may be involved in that analysis to include, but
not limited to, foreign policy issue, defense issues, which may be
beyond the ken of the court, or which may be something that
shouldn’t be made known to the court. Now, I find that rather
hard to believe given the in camera filings that are made with the
court with a great deal of frequency, and these can involve very
arcane issues and very sensitive issues. So I am not satisfied that
the court shouldn’t be made privy. But be that as it may.
That political question issue needs to be addressed on a case-
by-case basis, but it is distinct and discreet from a constitutionally
infirm statute as has been drafted here. Therefore, my finding that
A-26
the statute is constitutionally infirm, I suppose, mandates a
reviewable dismissal.
I am going to ask government counsel. Is that correct?
MR. HANNA: I believe so, your Honor.
THE COURT: All right. You know, as has been apparent, I
would hope, I have labored with this between trying to try this
other case and sundry other issues at some length. I am cautiously
confident that this analysis that I have enunciated here this
afternoon is the correct analysis, and I invite you to have it
reviewed, as I am sure you will, by the Ninth Circuit. I have no
pride of intellectual authorship here. But I think you are going to
have real trouble with this unless this concept of intelligible
principles is just between the Congress and the Executive to
which the issue is referred, and I can’t believe that it is so limited
as that. Now you know it wouldn't be the first time I couldn't
believe something and some circuit court found that I was
incorrect. So, go to it and find out what the circuit says.
You know, the interesting thing is that at some time or other
this was going to be addressed by the circuit. Were I to have
found that the statute was constitutionally firm, which is not the
terminology normally employed, but it certainly is the flip side of
infirm, that would have necessitated a trial. And, most assuredly,
had there been a conviction, there would have been a review by
the Court of Appeals of this constitutionality issue. I did rule on
that basis, but I have got to tell you that I think this ought to be
reviewed up front before everybody goes through the whole
exercise, if indeed it is found to be firm, as I have coined the term
here. And I stress once again that wasn’t the reason I am making
this decision.
T?.= other issue I want to address with government counsel is
one that again is a practical one, and that is the issue that has
been deferred by the Court in view of the urgings by respective
counsel, and that centers about the delay in bringing the prosecu-
tion. You know, I am vaguely aware of the arguments that have
been presented in part or in whole, as the case may be, to this
court. I have not analyzed them as I have analyzed the constitu-
tionality issue, but I can tell you this. A law clerk with a modicum
A-27
of smarts has looked at this, and he became somewhat agitated
and said there are real problems for the government in the delay
issue.
Now, I don’t know that to be the case, and before you can
prevail on a delay issue, as I said to the law clerk, Mr. Lundquist,
you have got to cross a lot of hurdles. And I don’t mind
intermediate hurdles. I mean high hurdles. Okay?
And those hurdles, this law clerk may not have been sensitive
to, but what I am telling both of you is this: I have not reviewed
this. There is this specter, if you will, of some type of delay that
would again invoke constitutional protections. I don’t know
whether it would be wise for me collaterally before I dismiss this
case to address — dismiss and lose jurisdiction — to address this
issue of delay so that you can package, if you will, the two main
issues for the appellate court. I don’t know whether they would
take some umbrage with this two-for-one approach that I am
suggesting, but it is a thought.
Give me your input, government.
MR. HANNA: Your Honor, I think that would be appropriate.
At this point, we haven’t focused on the speedy trial motion just
because both sides have indicated that they were going to put that
on hold for a bit and concentrate more on the constitutional law
issue.
THE COURT: What is your position, Mr. Lundquist?
MR. LUNDQUIST: Your Honor, I have been thinking along
your lines because we could end up having to do this thing twice. I
wouid like to talk to the government about it, but I think we
might give some serious thought to having the Court address that
issue too, because I think it is — well, I could say some young law
clerks here with a modicum of smarts agree with the —
THE COURT: When I say “modicum of smarts,” I am really,
I have to tell you, I am tweaking the law clerk.
MR. LUNDQUIST: Well, I am tweaking these folks, too, your
Honor.
A-28
But we might talk to the government about that and see if we
could make a proposal to the Court to see about getting that issue
addressed also.
THE COURT: Well, I haven’t dismissed yet. I want to make
that clear, so that if somebody says you lost jurisdiction, I am not
dismissing as yet.
MR. LUNDQUIST: Could we have, say, a ten-day hold on
that while we think about it and talk to the government then, your
Honor?
THE COURT: Give me a joint status report. You don’t need
ten days. I want a joint status report submitted by Monday next. I
don’t want to lose sight of this thing.
MR. LUNDQUIST: Fine.
THE COURT: You know, again, I am not passing any judg-
ment on the viability of the issue as presented to me. I just know
that a fellow with some ability has looked at this thing and says,
“Hey, I see some problems.” And I don’t know if I will subscribe
to his views or not.
MR. LUNDQUIST: I will talk to the government, and we will
get back to the Court. How would you like us to do it, your
Honor, on Monday?
THE COURT: Just file a status report, subscribed to by both of
you if you can do so. If not, a telephonic authorization is okay for
one signature. If you can’t do that, then separate submissions.
And I don’t want any lengthy tomes. Just a couple of pages.
MR. LUNDQUIST: All right. We will get back to the govern-
ment forthwith on that, your Honor.
THE COURT: Thank you very much.
MR. HANNA: Your Honor, I would like to be heard briefly on
the constitutional issue, if I might. There are a couple of points I
think that may not have been raised.
THE COURT: Well, since I haven't ruled finally, I will hear
from you briefly, but I still have that civil rights case out there we
have labored long and hard on.
A-29
MR. HANNA: I understand, your Honor.
THE COURT: They are in court waiting for me nght now on
instructions. I am looking forward to about two hours with them. |
MR. HANNA: I understand, your Honor. I just want to make
this point.
One of the things that I think that the defendant has argued is
that there is the potential for the Secretary of Commerce and the
entire Executive Branch essentially to go off on a tangent and just
essentially disregard the will of Congress. One thing I would like
to point out —I think it was pointed out in Mandel — is that
whether something is properly on the CCL, Commodities Control
List, is not an element of the case. The government has to prove
only that it was on the CCL, and that the defendant acted
knowingly.
So there is no unfairness if the government can establish, no
matter how ridiculous, that the defendant knew that a particular
item was on the CCL and was restricted that the defendant
nevertheless violated the law, there is no inherent unfairness in
prosecuting this defendant. It is not as if the government is
creating a crime that no one knows about that the defendant is
later charged with —
THE COURT: That isn’t —
MR. HANNA: — and claiming for example, that rubber bands
were restricted for sale to the Soviet Union. That’s the first point.
Additionally, your Honor, I think that with respect to Touby,
my reading of Touby, and I suppose Ms. Beaman set this out, is
that the court there said that once you have intelligible principles,
and I will quote, that these restrictions —— talking about the
principles — satisfy the constitutional requirements of the
nondelegation doctrine.
Now, my reading of Touby is that is as far as the court need go.
The court merely discusses the judicial review point because it
was raised directly by the petitioner, and the court simply said to
the petitioner, “No, you're wrong. There is judicial review with
A-30
respect to the statute. Congress has explicitly provided for judicial
review and simply delayed it.”
The fact, I think, that is compelling is that the majority did not
mandate a bright line rule, and one would think that in the case of
something that would have such a broad impact essentially
declaring that all statutes that don’t have judicial review built in
are unconstitutional. One would think the majority would have
said something about it or been somewhat more clear than some
vague reference and leaving it up to Justice Marshall in the
concurrence and simply point out in his view that judicial review
is mandated.
THE COURT: Parenthetically, I said I recognized that argu-
ment. There is no doubt about it.
MR. HANNA: The other thing, your Honor, is that the
ramifications of the defendant's view in this case are, I think, as I
am sure the Court has given it considerable thought, are just
huge.
In this case, based on that premise that there is a bright line
rule that judicial review is mandated in connection with all
delegations of legislative authority, this Court is called upon to
overturn the EAA, an Act which traces its roots back to 1949. I
suppose by implication that would delegitimize the hundreds of
convictions that have come about under the EAA and the
millions of dollars in fines and penalties that have come about
under it, but would also by implication declare unconstitutional
all the other acts which specifically exclude judicial review.
And I think it comes squarely in conflict with the political
question doctrine in that this is an area under Mandel and under
the line of cases that we have cited in our brief where the courts
have simply said, “We don’t want to get involved. We don’t want
to make those calls,” the type of calls that the defendant wants
the Court to make. And I think there are good reasons and not
just that there is classified information involved, but I think
fundamentally if the defendant’s argument is adopted here, what
it means in the extreme — and the defendant has put an extreme
version of what happens if the government's position is taken. I
think it is an extreme version of what the defendant’s position
A-31
would entail if warranted as well. In the extreme, I think it would
prohibit the government from controlling exports at all, and not
just because classified material is at stake. Because when the
government has to prosecute an individual, surely they would
have to then, under the defendant’s theory, put forward all the
classified material and context of negotiations between the
powers.
We also run into a situation where the district court out here,
for example, may come to a conclusion that a particular item that
is completely different from what, for example, a court in New
York may come to.
There is no way that the government could then negotiate with
COCOM and the allies and throughout the government come up
with a list only to have that list later proved to be ineffective
because various courts are coming to different conclusions as to
the same item. It would be conceivable that this Court could say
the polishers and coders at issue here are certainly on the list and
should properly be on the list, and a court out in another
jurisdiction could come to the opposite conclusion. That would
essentially I think eviscerate the government’s power to control
exports at all.
MR. LUNDQUIST: In response, your Honor, the government
just overstates the case. I mean that isn’t the situation. As the
Court has analyzed it, you look first of all to the delegation. So,
that means you look, is it properly on the list, and that goes to the
whole delegation analysis.
Going to Touby, the Skinner case cited by the majority says
that the purpose of requiring an intelligible principle is to permit a
court to ascertain whether the will of Congress has been obeyed.
That is the whole analysis that goes to the separation of powers
issue.
You are not going to get this case-by-case determination
indifferent because here the whole separation of powers part stops
that. It was improperly done. Congress can pass a statute which
does not put in all these conditions it wants. It can delegate
intelligible principle, or it can have a review of the firsst part of it
A-32
if it wants to just to see that the procedures were carried out. That
isn’t such an enormous task.
I think for the government to say that something — and the
Court I think has correctly posited it the unconstitutionality issue.
For the government to say that because it may have acted
unconstitutionally for many years, it should have the right to do so
going forward. This simply is not an appropriate analysis.
MR. HANNA: Your Honor, in response I think it is a mighty
thin reed to pin a decision, to declare a statute unconstitutional
based on a hypothetical given by the defendant that the entire
Executive branch is essentially going to take leave of their senses
and do something that is completely against the will of Congress.
If that is the case, then we have got greater problems than the
EAA.
And I think that and Touby is— if they are basing their
argument on that hypothetical and on Touby, and Touby simply
does not say specifically what the defendant wants it to say. And
one would simply think, and I think the Court as we discussed
before correctly pointed out, that something of this magnitude
and having these implications, one would think that the majority
would specifically state it.
| THE COURT: Okay. I hear both your arguments. I’ll put you
on hold a moment. Wait for me.
(Brief Pause. )
THE COURT: Okay.
MR. HANNA: Yes, your Honor.
THE COURT: I am going to refer — I think that Skinner —
MR. LUNDQUIST: Can I make one brief point, your Honor?
I should have noted, as I did the other day, that Congress has
already said in the legislative history here that the EAA has acted
in an irrational and inconsistent manner. That is in the "85 —
THE COURT: That is not persuasive to me. I have got to sign
off. I have got this other case.
A-33
Yakus, which we have been talking about from time to time
here, which is a 1944 case, Y-a-k-u-s, 321 U.S. 414, states in part
at pages 425-426:
“Only if we could say there is an absence of standards for
the guidance of the administrator's action so that it would be
impossible in a proper proceeding to ascertain whether the
will of Congress has been obeyed would we be justified in
overriding its choice of means for affecting its declared
purpose.”
That is an exposition of judicial review, if not explicitly, first
order of implicitly. Then, in Skinner v. America Pipeline Co. 420
U.S. 212 at 218, it is stated in part:
“That requiring an intelligible principle is to permit a court
to ‘ascertain whether the will of Congress has been
obeyed ...’” because they are quoting Yakus, I think.
The fact of the matter is both of those cases definitely say it
haven't just an intelligent, defined reference to the Executive that
satisfies constitutional mustard. It has to take another step, and
that is you have to involve the courts.
Now, I want to tell you, I don’t need to protest here. Okay? But
you are not talking with an activist court. I can assure you of that.
Just the thought of saying that the statutory scheme is unconstitu-
tional is a daunting thought. Okay? I don’t gravitate to something
like this readily. But I am telling you that the dictates of Yakus
and Skinner as well as I think probably common sense, as well as
what can be read into the Touby decision, that you have to come
up with the conclusion that I have.
And, you know, I will follow it with a great deal of interest
where you come out. You paint a very dire picture, as the
government counsel. You may be correct. I don’t think so. The
question is whether there really is this retroactivity. I don’t think
using a retroactivity analysis that is employed in a setting such as
this that in all likelihood you would have retroactivity, I don’t
think you would. But the enormity of the impact can’t be the basis
for the ruling, quite obviously.
A-34
So, I haven't ruled finally for stated purposes here. I have ruled
provisionally because I want to also consider this other delay
issue. So, maybe we ought to set this up — well, you will submit it
on Monday, and we may — we will follow up on a telephone
conference, if appropriate next week. Okay?
MR. LUNDQUIST: Thank you, your Honor.
MR. HANNA: Thank you, your Honor.
THE COURT: Thank you. Goodbye.
CERTIFICATE
I hereby certify that the foregoing is a true and correct
transcript of the stenographically recorded proceedings in the
above matter.
Loraine M. Daley, CSR, RPR Date
Official Reporter
A-35
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaindg,
v.
OGNIAN BOZAROV et als,
Defendant.
CRIM. No. 83-908 WDK
ORDER DISMISSING INDICTMENT
This matter having been fully heard and considered, the motion
of defendant OGNIAN BOZAROV to dismiss the indictment
herein on the grounds that the underlying statute violates the
separation of powers doctrine embodied in the Constitution of the
United States is granted, and
IT IS THEREFORE ORDERED that the indictment herein
be dismissed.
IT IS FURTHER ORDERED that bail heretofore set be
exonerated and that any cash deposit made be refunded to the
surety or his assignee, and that the defendant BOZAROV be
relieved of any conditions of release imposed.
Dated: August 29, 1991
WILLIAM D. KELLER
WILLIAM D. KELLER
UNITED STATES DISTRICT
JUDGE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.