# Petitioners Brief — Travis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0057%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1967 - **Citation:** 385 U.S. 491 ## Text Sp YoTRN OT RRC ON ER ET ITI OI ETE TL FA I IE ET I Te Te tL RE ee we BLANK 4 SUBJECT ‘INDEX Page Opinions below 1 Jurisdiction 1 Statute, regulations and proclamations involved ...... 2 Questions presentéd ... ‘ 2 Statement of the case | 5 Summary of argument 11 Argument 19 Congress i in enacting Section 1185 did not author- ize the issuance thereunder of criminal-sanction - area travel bans 19 II. To enforce the “excluding Cuba” regulation under Section 1185 with criminal sanctions in the premises at bar would violate due process for vagueness, contradiction and misleading terms in the communication of a criminal command .. 36 Ill. . The “excluding Cuba” regulation was not validly pn under Section 1185 .. eneees Cased to authorize the “excluding C -regulation at bar, Section 1185 -unconstitution- ally delegates legislative power without ade- ,g@luate or any standards : .. 54 V. Construed to authorize the “excluding Cuba”. regulation at bar, Sate | 1185 deprives de-— fendant of persoiial liberty and of freedom’ of” -*’ speech, thought and association, catecy aE First and Fifth Amendments {. 58 ii. . VI 2I1a ....... 7, 13, 19, 29, 36, 46, 54 United States Code, Title 28, Sec. 1254(1) ............ 1 United States Constitution, Art. I, Sec. 1 .................. 54 United States Constitution, First Amendment .......... 4, 16, 17, 61, 62, 64 United States Constitution, Fifth Amendment ........ = 4, 16, 17, 61 | Textbooks 1 Blackstone Commentaries; pp. 134-135 .............. 58 Chafee, Three Human Rights in the Constitution of 1787 (1956), pp. 195-196 59, 64 3 Hackworth, p. 530 . 27 5 Wheaton, pp. 76, 95-96 51 —— IN THE - Supreme Court of the United States October Tern, 1966 No. 67 HELEN MAXINE LEv1 Travis, Petitioner, VS. % . UNITED STATES OF AMERICA. 7 BRIEF FOR THE PETITIONER. * Opinions Below. The memorandum opinion of the District Court deny- ing petitioner’s motion to dismiss [R. 42-47] is reported at 241 F. Supp. 468. The niemorandum opinion of the District Court finding petitioner guilty as charged [R. 94-100] is reported at 241 F. Supp. 472. The opinion of the Court of Appeals below affirming petitioner’s conviction a rte is pee at 353 F. 2d aie : The judgment of the Court of Appeals was ent 4 oS November 19, 1s .(R 112.] A 7 ose cei £5: on January 4, 1966." TR. 113.] The x titic “— r pcr tiorari was filed January 28, 1966, and oo 2 tes Boe April 18, 1966. [R. 113.] “The ju isd “of this Cotirt is invoked timder 28 U.S.C. Aas « ‘ Statute, Regulations and Proclarations Involved. ‘The statutory provision involved herein is 8 U.S.C. Sec. 1185 (Sec. 215 of the Immigration and National- ity Act of 1952, 66 Stat. 190) (hereinafter referred to as Section 1185), which appears herein in Appendix A. The regulation involved herein is State Department Regulation No. 108.456, 26 Fed. Reg. 482, 22 C.F.R. Sec. 53.3 (hereinafter referred to as the Exclud- ing Cuba Regulation), which appears herein in Appen- dix B. (For convenience, 22 C.F.R. Secs. 53.1, 53.2 and 53.3 as existing prior to the Excluding Cuba Regu- lation also appear herein in Appendix C.) Public Notice 179 (26 Fed. Reg. 492) and Press Release No. 24 (44 Dept. St. Bull. 178), issued by the State Depart- ment concurrently with the Excluding Cuba Regulation, appear herein as Appendices D and E, respectively. Presidential Proclamation No. 3004 (January 17, 1953, 67 Stat. C31), issued under Section 1185 and to give that statute effect, appears herein in Appendix F. Presidential Proclamation No. 2914 (December 16, 1950, 64 Stat. A454), referred to in Proclamation No. 3004 above, appears herein as Appendix G. : Questions Presented. — In Kent v. Dulles, 357 U.S. 116, this Court dis- tinguished between the civil side of the passport power (dealing with the granting or withholding of the diplo- matic, safe-passage protections of passports) and the criminal side dealing with, prohibitions upon exit from the country..In Zemel v.- Rusk, 381 U.S. 1, the Court upheld the power of. the Secretary of State to withdraw ~ the safe-passage protections-of a passport from one travelling to Cuba, but expressly left open the ques- : 3 tion as to the Secretary’s ‘power to criminally prohibit such travel under the exit-control sanctions of 8 U.S.C. Sec. 1185. ‘ The instant case presents that reserved question. More completely stated, the question presented is whether the Excluding Cuba Regulation (with accom- panying Public Notice and Press Release), eliminating Cuba from the area for. which passports are not re- quired and requiring a special validation, allowable only in total discretion, for travel thereto, can support a criminal prosecution under 8 U.S.C: Sec. 1185 for a claimed violation thereunder, including under that fun- damental question the following subordinate issues: (1) Whether Section 1185 (as distinct from the civil Act of July 3, 1926, involved in Zemel v. Rusk) grants statutory authority, backed by criminal sanction, for an area restriction upon travel such as the purported Excluding Cuba Regulation at bar; ‘ (2) Whether said Regulation, in light of prior legisla- tive and administrative history and administra- tive declarations indicating area restrictions are civil only in nature, and not criminal, and in light further of the considerations stated in (3) below, can be enforced under Section 1185 as a _ criminal prohibition without violating the require- ments of due process of law prohibiting vague- ness, contradiction and misleading a in the communication of a criminal pr voneng (3) Whether said Regulation can be enforced with criminal sanctions under Section 1185 although the said Regulation’ was expressly not promul- oy (4) (5) (6) scallion gated under authority of Section 1185 but only under authority of the civil Act of July 3, 1926, which bears no criminal penalty for violation of regulations issued under its terms; Whether Section 1185, if construed to authorize issuance thereunder of criminal area travel pro- hibitions, unconstitutionally delegates legislative power without adequate or any standards; Whether Section 1185 and the Excluding Cuba Regulation, if construed to authorize a crim- inal restraint against travel to Cuba, including particularly restraint whereunder special valida- tion for such travel is allowable only under un- confined, absolute administrative discretion, de- prives petitioner of personal liberty and of free- dom of speech, thought and association contrary to the First and Fifth Amendments; Whether Presidential Proclamations Nos. 3004 and 2914 possess presently continuing validity and effect sufficient to support imposing under Section 1185 of regulations criminally prohibit- ing travel to a described area or country; (7) Whether Section. 1185 and the Excluding Cuba Regulation can properly be applied to a departure not directly, to Cuba. but only to Mexico, with ap- plication, to Cuba for permission to enter being made only after, not prior to, United States de- parture. .. 3 on Statement of the Case. Petitioner (hereafter referred to as the detentazity was convicted below on two counts for claimedly violat- ing Section 1185, and the Excluding Cuba Regulation under it. The indictment charged that upon two oc- casions, on January 22, 1962 and on August 18, 1962, defendant “did . . . depart from the United States with- out bearing a valid passport, for the Republic of Cuba, via Mexico. ...” [R. 1-2.] Section 1185 provides in core that after a Presi- dential proclamation of a “national emergency” (pro- claimed in Presidential Proclamations Nos. 3004 and 2914"), and after a further presidential proclama- tion of necessity? (proclaimed in Proclamation No. 3004, supra), it shall be a crime for any citizen “to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid pass- port”, “except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe.” Prior to the Excluding Cuba Regulation it was pro- vided in 22 C.F-R. Secs. 53.1 et seq., issued under au- ee med taeda aoa C31, ; ¥ sire, was proce at t recited | proclaimed in Presidential Proclamtion’ No. it, December 16, 1950, 64 Stat. A454; A .G: infra, and declared that eiective wt Go Heme of Hebielany> dete irarthseomcerh: hie in in . oot bord sy. 3 r iit deaick bet Woke made, 2The requirement is that the President find and proclaim “that prohibitions in addition to those ided otherwise than by thi sway into. the United States Presidential Proclamation _ No. NTONTTIIC itiieds thority of Section 1185, that passports should be re- quired of all citizens to enter or leave the United: States except that no passport should be required for citizens “traveling between the United States and any country or territory in North, Central or South American or any island adjacent thereto. . .” (22 C.F.R. Sec. 53.3, Appendix C, infra.) The Excluding Cuba Regulation (Regulation No. 108.456, January 16, 1961, 26 Fed. Reg. 482), and Pub- lic Notice 179, 26 Fed. Reg. 492, and Press Release No. 24, 44 Dept. St. Bull. 178, issued simultaneously therewith, purport collectively to at once remove Cuba from the area under 22 C.F.R. Sec. 53.3 within which citizens may travel without a passport, and simul- taneously to declare passports invalid for Cuban travel without a special validation allowable only in total ad- ministrative discretion, _ . Specifically, Regulation No: 108.456 purported ‘to amend 22 C.F.R. Sec. 53.3 to insert in ‘the language there exempting from requirement of a passport travel to “any country . . . in North, Central or South America or in any island adjacent thereto” the phrase, “excluding Cuba”, and thereby to require a passport for Cuban travel. Simultaneously Public Notice 179 declared all passports “invalid for travel to or in Cuba . . - unless specially endorsed for such travel under the authority. of the Secretary of State”, and Press Release No. 24 | declared “exceptions” to the prohibition on Cuban travel would be granted By the Secretary only “to persons whose travel may be’ regarded as being in the best in- _terests of the United States...” ‘None of these “Excluding Cuba” public acts and documents—Regulatign No. 108.456, Public Notice 179 or Press Release No. 24—cited or referred to Section. . 1185 in any way as authorizing or promulgative au- thority. To the contrary, both Regulation No. 108.456 and Public Notice 179 expressly cited as their sole pro- mulgative authority only the civil Act of July 3, 1926 (44 Stat. 887, 22 U.S.C. Sec. 21la), a statute im- posing no criminal penalty for violation of regulations issued under its authority. 4 Thus the promulgative paragraph of Regulation No. 108.456, excerpted for clarity, recites expressly the au- thority of the Act of July 3, 1926, stating: “Pursuant to the authority vested in me by . . . the act of .. . July 3, 1926. . ., I ‘hereby amend viiaieieks (b) of [22 C.F_R. 53. 3] as follows: ...” (26 Fed. are 482. )* In similar manner, Public Notice 179 states simply: “Therefore pursuant to the authority. .. of . . . the Act. 29, 0f July 3, 1926... ., all United States pass- ports are hereby d d to be invalid for travel to of in Cuba . . .” (26 Fed. Reg. 492.) As to the prosecution below there are. no disputed facts. Defendant was tried by the court witha. jury waived, upon an agreed “Stipulation of Facts.” [R. 49- 52.] He senescence ut i siaaiiicel adh dils baie is a citizen [R. 49, par. 2]; that at all material times she knew the provisions of Section -1185 and of 22 C.F.R. Secs. 53.2 and 53.3 [R. 51, par. 11]; that at all material times she did not possess a valid United States sorae,pramleaivg cause also refered t gual idole Stat. C, ect affecting the are of State. + = i : 3 —8— passport specifically endorsed for travel to Cuba [R. 51, par. 11]; and that on January 22, 1962 and on August 18, 1962 defendant “intentionally left and departed from . . the United States” by plane on the first date and -by automobile on the.second date. [R. 50-51, pars. 4 and ee me The Stipulation recites that defendant did not in ei- ther instance depart directly for Cuba but rather for . Mexico, intending in each instance to seek permission to | travel to Cuba only after her arrival in Mexico. [Jd.] In each instance defendant entered Mexico upon a tourist permit issued by that country’s government, and at the time of departing “intended to seek permission from representatives of the Republic of Cuba in Mexico, ‘D.F., to visit Cuba.” At the time of each departure from _ the United States she “did not have Cuba’s permission to enter Cuba” and, she obtained that permission_ only after arrival in Mexico. [R. 50-51, pars. 4 and 7.] On the first occasion that permission was obtained four days after arrival in Mexico City, and on the second, twelve days after such arrival. [Jd.] After the requisite permission had been obtained for entry into Cuba, de- fendant traveled from Mexico City to Cuba by plane. [R. 50-51, pars. 5 and 9.] After her arrival in Cuba on each of her said jour- neys thereto defendant travelled in and about Cuba ob- serving “the living and working conditions of the people ‘ and the effectuation and implementation of various gov- ernment programs relating to housing, ‘education, agri- culture, industrialization and public health” and # the course of such: travels took a number of pictures of which Exhibits 1A to 1M are representative. [R. 51-52, . par» 12.], Upon her return to the United States and to oy 7 | aN ; " g : \ —: her home in Los Angeles, California, defendant appeared before “various groups and gatherings of her fellow citi- ~ zens” ahd reported to them her observations upon her. travels in Cuba and showed her photographs, Exhibits 1A to 1M. In addition defendant wrote descriptions of her trips and her observances in Cuba which she dis- serhinated by mail to friends and acquaintances, and the copy of her letter dated February 28, 1962, Exhibit 2, is representative of such materials. [R. 52, par. 13.] The Stipulation of Facts was duly filed and’ Exhibits 1A to 1M and 2 were duly admitted in evidence. f R. 53.] By a‘written motion to dismiss the indictment [R. 3- 4] and by an oral motion for judgment of acquittal [R. 53], each supported on leave by written briefs [R. 5-18 and 54-73], defendant challenged in the trial court the statute and the Regulation on their face and as applied, upon grounds substantially as expressed herein in the Statement of Questions Presented above. ,Both said mo- tions were denied. [R. 42-47 and 94-100.] Defendant was adjudged guilty on both counts of the indictment and was sentenced on each count to a fine of $500 and to six months imprisonment, sunpended on probation. [R. 102-103. ] . On appeal the Court of “Appeals below affirmed. [R. 109-112;, 353 F..2d 506.] The Court of Appeals dis- allowed defendant’s contention that Section 1185 did not authorize areq travel restrictions under its criminhl sanctions, citing only Zemel v. Rusk (though that deci- — sion involved only the civil, safe passage aspect of jean in f restrictions and expressly reserved the question of ae inal authority under Section 1185), and observing only that, “Area restrictions have long been used and are - recognized as valid.” [R. 111; 353 Fr2d at p. oe a ES The Court of Appeals further rejected defendant’s contention that the statute and Regulation denied due process for vagueness and contradiction in the co munication of a criminal command, citing only the cir- cumstance that the Stipulation of Facts recited defend- ant “knew” the contents of Section 1185 and the Ex- cluding Cuba Regulation. The Court of Appeals mis- read this Stipulation as signifying defendant “knew” the meaning of the statute and Regulation as claimed and contended for by the Government. The true stipula- tion was only that defendant “knew the provisions of Section 1185(b) of Title 8, United States Code and Sec- tions 53.2 and 53.3 of Title 22, Code of Federal Regula- tions.” [R. 51, par. 11.] This does not at all stipulate to knowledge of the meaning or effect of the statute or Regulation as claimed by the Government.™ The Court of Appeals further disallowed defendant’s contention that her departure in the circumstances de- scribed in the Stipulation of Facts as heretofore sum- marized did not m any event coristitute a departure for Cuba within the prohibition of the statute and Regula- tion, stating only that if the contrary be held “the in- tent of Congress would be entirely obviated and the statute and regulation nullified.” [R. 112; 353 F. 2d at’ p. 508.] The Court below did not address itself to the remainder of the defendant’s contentions. », Also before this Court, joined for argument with the instant case, is the related prosecution in United States v. Laub (E.D.N.Y., 1966) 253 F. Supp. 433, probable jurisdiction noted in 384 U.S. 984. There the defend- ants, who possessed passports but without special valida- “The circumstance was pointed. out in the Petition for Re- eneing Bed Sew, aa i A ES ee BL - woh Gini tion for travel to Cuba and who were prosecuted as at bar under Section 1185, were acquitted by the trial judge _ who found Section 1185 inapplicable to lend criminal sanctions to area travel bans. . ; : Summary of Argument. We deal here with the exit control function of the passport power, not its diplomatic function as a request for the traveler’s safe passage. This case presents the question reserved in Zemel v. Rusk, 381 U.S. 1, whether the exit control sanctions of 8 U.S.C. Sec. 1185 can be - used to enjorce area restrictions on travel. -(1) The terms and the legislative and administrative history of Section 1185, and of its two predecessor stat- utes, the Act of May 22, 1918 (40 Stat. 559) and the Act of June 21, 1941 (55 Stat. 252), of which it is an exact reenactment, combine to demonstrate that Section 1185 does not authorize issuance under its criminal sanctions of geographical travel restrictions upon a traveler’s destination. The terms of the statutes do not suggest authority for such restrictions, and the legisla- tive history of the 1918 and 1941 Acts makes it clear that those statutes were expressly intended as war- emergency border-control. measures only, designed to prevent bordér crossi by spies and enemy agents. The purpose was to regulate travelers, not destinations. Nodifferent intent was expressed in the passage of Sec- tion 1185 asa eenactment of the prior statutes. : There has been a consistent pattern of Administrative construction of the current.and pred statutes as providing no crimirial penalty for the efforcement of — frequently imposed area restrictions. The geographic limitations imposed, beginning as early as 1919, were - ae cast in safe passage request terms only, without sug- ’ Besting criminal consequences for noncompliance. In cértain instances the existence of criminal sanctions to enforce the réstrictions was.specifically disclaimed, and the safe-passage nature of the limitation was empha- ‘sized. One of *thesé was published in ‘1952 while the present Section 1185 was under consideration by the ~ Congress. Another was presented to the Congress in 1957 as the ‘carefully considered position of the De- partment of State. The President and the Department in 1958 specifically requested the enactment of sanctions to compel compliance with. area restrictions. In the leg- islative studies that followed, the Chairman of the Sen- - ate Committee on Foreign Relations advised the Con- gress that the law was deficient in failing to provide such ‘sanctions. The Congress failed to enact the legis- lation. Finally, the government has admitted, that since the enactment df Section 1185 in 1952 there have been approximately 600 known violations of its area restric- tions. But the first attempts to invoke criminal penal- ties have’ been confined to the restrictions on travel to Cuba: the instant case, initiated-in 1963; United States v. Laub, instituted: in 1964; and Worthy v. United States (C.A. 5, 1964), 328 F. 2d 386, seat & an entry rather than a departure. Consistent with the Department’s long construction of - area travel restrictions as noncriminal measures, the Ex- cluding Cuba Regulation, issued January 16, 1961, and. Public Notice 179 which accompanied and publicized the Regulation, were cast in the form of a civil, safe-pas- . sage measure only. Both the Regulation and the Public Notice cited as promulgative authority only the civil Ae oF Tay 'S 1926 (44 Stat. 887, 22 US.C. Sec. sv - ad 211a), nat Section 1185,‘and’the Public Notice, reciting as the cause of the restriction “the absence of diplomatic relations” with Cuba, declared only that under the au- thority of the Act of July 3, 1926 “all United States passports are hereby declared to be invalid for travel to or in Cuba.” ) By ‘its témns,. and by. legislative history om oe: years, of consistent administrative construction, Séction 1185, like its predecessors, is inapplicable to area restrictions and does not authorize the imposition of stich resfric- ° . tions under its criminal sanctions. (2) Moreover, even if it be. assumed Section 1185 could now be construed to lend criminal sanctions to area restrictions, in light of the ambiguity of the stat- ute and the many explicit and irnplicit . Departmental acts and statements indicating area reStrictions are not enforceable under the statute, to uphold criminal liability _ at bar would violate due process requirements forbid- ding vagueness, contradiction, and misleading terms in the communication of a criminal command. The face of the statute discloses no purpose to au- - thorize area restrictions. The legislative history: of the Statute and its exact predécessors shows an express in- tent to impose only border control over certain types of persons—to régulate travelers, not destinations. The ad- ministrative interpretation forms a consistent. pattefn of area restrictions in the form of refusals to request’ safe passage, and criminal prohibitions have not been mentioned. As of the time of the offense charged _here, there had never been a prosecution under Section 1185 or its predecessors for violation of any of the area restrictions ; nor had one been any declaration that any a * i - 4 A o : “ . « on * ke We of the earlier ar testrictions were or could have been issued with criminal exit control sanctions under Sec- tion 1185 or its predecessors. , On the contrary there have been affirmative, author- itative administrative disclaimers of criminal sanctions. The Department of State itself in 1952 declared that | area restrictions “in no way forbi[d]” free travel in violation of their terms but constitute merely “additional steps to. American citizens of- the risks of [un- sanctioned] travel.” Further in 1957 the Department advised the United States Senate upon official inquiry that travel to an area-restricted country “does not... [in itself} violat[e] the criminal law,” although criminal laws may be.violated in the course of such travel and the traveler must undergtand that he “cannot, be assured .- of the protection of the United pre. vs All of these matters of pee tell the i> that travel to the disapproved areas is not regarded as a crime. To prosecute thereafter: turns -this contrived structure of administrative regulations into a trap even ’ for the wary. Jo suffer criminal conviction in such premises “would be to sanction an indefénsible sort of entrapment by the State—convicting a citizen for exer- cising a privilege which the State had} clearly told him_ was available to him.” (Raley v. Ohio, 360 U.S. 423, 426; Cox v. Loutsiana, 379 U.S. 559, 571.) Moreover, all'of the foregoing circumstances are climaxed finally by the promulgation clause of the Ex- “dluding. Cuba Regulation itself, and by Public Notice 179 which accompanied and publicized the Regulation, « both. of which cite as promulgative authority only the civil Act of July 3, 1926, not Section 1185. The Public Notice, reciting as the cause of the restriction “the ab- —~——_ / { \ sence of diplomatic relations” with Cuba, declares only that under the authority of the Aet of July 3, 1926 “all United States passports are ‘hereby “declared to be in- valid for travel to or in Cuba.” In all of these premises it appears difficult to deny that defendant, or any’ other citizen, might reasonably read the Excluding Cuba Regulation in the light of all of these circumstances as communicating no criminal- sanction area travel prohibition. Defendant did not reach the wrong interpretation of the regulatory maze. Rather the Government reversed its field by professing to im- “pose no criminal sanction and after the defendant’s) travel doing the very opposite. Due process forbids con- tradictory, misleading or vague* criminal commands. (United States v. Cardiff, 344.U.S, 174, 176-177.) (3) Additionally, even if it be assumed that Section 1185 authorizes the issuance under its criminal sanctions of area travel prohibitions, violation of the Excluding Cuba Regulation can be no crime at bar because that Regulation was not promulgated under the sanctions: of Section 1185 but was expressly promulgated only under the authority of the civil Act of July 3; 1926, supra, a _ \gtatute imposing no criminal sanctions for violations of “A regulations issued under its terms. ' The citizen cannot be held criminally liable for viola- tion of a regulation issued under a statute which does not make such a violation a crime. ---- (4) Construed to authorize area travel restrictions f Section 1185 unconstitutionally delegates - legislative power without adequate or any standards. Zemel v. Rusk dealt. with delegation of legislative authority only as to the civil side of the passport powers; delegation 7 ere under a criminal statute, as at bar, must be more strict- ly ‘judged. (Fahey v. Mallonee, 332 U.S. 245, 249- 250.) Moreover, at bar there is no history of adminis- , trative construction to support criminal area restrictions such as existed in Zemel to support civil area restric- tions. In Zemel such administrative construction was the base premise of the sustaining of the claimed power. Such premise cannot operate here. Without administra- tive aid, the statute must fail for improper delegation of legislative power, for there are no delegation stand-. ards whatever expressed in the statute’s terms. (5) Additionally, construed to authorize the Exclud- ing Cuba Regulation at bar, Section 1185 deprives de- fendant of personal liberty and of freedom of speech, thought and association contrary to the First and Fifth Amendments. The liberty of travel is “basic. in our values.” It is “closely related to the rights of free speech and association” (Aptheker v. Secretary of State,, 378 U.S. 500, 517), and in Chafee’s words it “enables Arketican citizens . . . to be well informed on public issues” and “contributes to sounder [democratic] deci- sions.” Defendant’s travel to Cuba was in this tradition. She sought to visit Cuba to observe first hand the living conditions of the people and the social and economic program of the new government. On her return she re- * «ported to gatherings of fellow citizens what she had Thus did she as one citizen attempt to participate @ fhe nation’s opinion-making processes. we deal here with the criminal power to prohibit travel altogether, even as to citizens willing to travel without diplomatic passport protection.- This court —17— should reaffirm that under the First and Fifth Amend- ments the Government may not prohibit and punish such ‘free, innocent: travel. Punishment so imposed is incon sistent with the protected liberties of a mgrecenine nation. Moreover the restriction on travel at bar vests the Secretary with absolute, censorial power to allow travel to Cuba only when and where he deems such “in the best . interests of the United States.” Such ‘drbitrary, censorial licensing power over travel, particularly of- fends Constitutional. fundamentals. (Cox v. Louisiana, 379 U.S. 536, 555-557; Thornhill v. Alabama, 310 U.S. 88, 97; Kunz v. New York, 340 U.S. 290, 294.) (6) Even if Section 1185 be otherwise applicable to area travel restrictions there exist at bar no sufficient Presidential proclamations of need and emergency to satisfy the statute’s explicit terms. Firstly, there is no proclamation-whatever of need for geographical travel réstrictions, either generally or as to Cuba as a particular instance. Section 1185 is a criminal statute and must be narrowly construed, and its pre- condition that departure restrictions must be found to be “require[d]” by “the interests of the.” United States” must be liberally enforced in’ favor of the ac- cused so as to require for area deparfure restrictions a finding of specific for such particular restrictions, ; either individually or t least as a category. Secondly, both Brocimations Nos. 2914’ and 3004 (issued December 16, 1950 and” January 17, 1953, re- spectively ) are bottomed on the emergency of the Korean War existing at the time of their proclamation; that foundational-premise of both proclamations ceased with 4 — EE ee ae nine the end of that “war” emergency on July 27,1953. ~ (13 Encyc. Brit. 467;474.) This Court: is not controlled .by-an outdated executive proclamation of an emergency which by passage of time has ceased to exist. It has the authority to inquire as to whether there is in fact such a national emergency in existence today as can support the restriction upon liberty of travel represented by the Regulation at bar. (Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-548; Baker v. Carr, 369 U.S. 186, , 214.) (7) In any event defendant’s conduct did not. violate Section 1185 properly construed and Constitutionally limited. Defendant departed not for Cuba but for Mexico, and only after her United States departure, and after her arrival in Mexico on the occasion of each of her trips,.did she apply for and ultimately secure Cuban‘ permission to enter Cuba. Accordingly, at the time of each of her “departures” from the United States she had no ability to, and she did not, “depart” from the United States “for the Republic of Cuba” within the meaning of Section 1185. Section 1185 covers only departure; it operates only on the fact§existing at the moment of such departure. To say thafydeparture can be rendered penal by a. subsequent. seeking and obtaining@of permission to enter Cuba is to defy. reason and to make the statute arbitrary and void in its application under due process funda- -mentals. anes. ARGUMENT. 319972 I. — Congress in Enacting Section 1185 Did Not Author- ize the Issuance Thereunder of Criminal- Sapction Area Travel Bans. In Kent v. Dulles, 357 U.S. 116, this Court dis- tinguished (pp. 120-123,-and 129) between the two separable functions of passports—the first as a civil diplomatic act of granting or withholding requests for safe passage; and the second as an instrument of crim- inal exit-control. Zemel v. Rusk dealt with the civil function of the passport for purposes of travel to Cuba and held as to that matter—the civil withholding of request for safe-passage—that the civil Act of July 3, 1926, 44 Stat. 887, 22 U.S.C. Sec. 21la, granted the Secretary authority to impose area travel restrictions and thereunder to refuse to issue Cuban travel pass- ports~However, this Court there expressly reserved the question “whether [a person] can be criminally prose- cuted under. . . 8 U.S.C. Sec. 1185(b) . . . for. travel in violation of an area restriction.” (381 U.S. at p. 18.) That reserved question is now posed here. And the first issue presented under that question, before. Constitutional issues or particular contentions are reached, is whether Congress in enacting Section 1185 authorized the imposition of criminal area travel prohibitions or restrictions. Examination will aco strate that it did not. (1) The legislative history of Section 1185, cuastoal June 27, 1952, demonstrates that it was no part of the purpose of Congress in enacting that Section to au-. OE ee epee ereeeey ot criminal area travel prohibitions. | ——_—— : Section 1185, ‘like its two predecessor ‘statutes of which it is ip the respects here material an exact re- enactment, is a departure-and-entry statute purposed at border control. In material terms it makes it crim- inal, when its provisions are in effect during emergency ~ and by proclamation, for any citizen “to depart from or enter” the United States “unless he bears a valid arare subject - such “exceptions as the President may ... prescri The Section derives originally from the Act of May 22, 1918, 40 Stat. 559 (hereafter cited simply as “the 1918 Act”), which as a World War_I measure was ex- pressly made operative only “when the United States is at war.” That Act prohibited citizen entries and de- partures in exactly the same terms as quoted above under present Sectipn 1185. The 1918 Act expired in effect as to World War I by Congressional resolution on March 3; 192b (41 Stat. 1359.) Thereafter, in 1941 Congress passed the Act of » June 21, 1941; 55 Stat. 252 (hereafter cited as “the 1941 Act’), amending the 1918 Act to make its terms and provisions (which were heft unchanged) effective either during war or during.the then existing “national emergency” proclaimed by the President on May 27, 1941. The 1941 Act was continued in operative effect by Congressional joint resolutions (66 Stat. 54, 57; 96; 137; 330, 333) to and beyond June 27, 1952, on which date Congress enacted Section 1185. Section” 1185 re- pealed the 1918 and 1941 Acts (66 Stat. 279) and si- multaneously reenacted their substantive ‘terms in un- changed form so far as here material (66 Stat. 190), thus coffkinuing in effect and reenacting the restrictions upon citizen entries and departures exactly as ex- = Zin pressed in the earlier Acts. Under Section 1185 these re- strictions were made operative either during “war” or during “any national emergency proclaimed by the President.’”* : There is virtually no legislative history surrounding Congress’ enactment of Section 1185 except the single, vitally importartt fact, » as developed in detail under Sec- tion (2) hereafter, that in’ the “vefy midst of Congres- sional consideration of the bill which inchided Section 1185 the Department of State issued its official public statement, May 1, 1952, announcing (despite the then full effectiveness of the 1918 and 1941 Acts) that its area passport restriction issued that day, invalidating’ passports for travel to East Europeatt-countries, China and the Soviet Union, “in no way forbids” citizen travel to the affected areas. This Department statement came just two months before the enactment of Section 1185 on June 27, 1952 and climaxed, as hereafter detailed, a history of administrative practice during the operative periods of the 1918 and 1941 Acts indicating those Acts were not conceived to impose criminal restraints upon area-restricted travel. , The only direct Congressional legislative history at- tending the enactment of Section 1185 is the simple statement in the House Report (H. Rep. 1365, 82nd Cong. 2d Sess., p. 53) that ‘the provisions of the new from “Press Release No. 341, seta titan iets ticeiai eid section (2). ; ) ‘\ —22— act (Section 1185) “are iticorporated in the bill in prac- | tically the same form as they now appear in the Act. of May 22, 1918 [as continued in force by the Act of -June 21, 1941].” Accordingly the true legislative his- tory of Section 1185 is, in a substantive sense, the legis- lative history of its two exact predecessors; the 1918 - and 1941 Acts. (Kent v. Dulles, 357 U.S. 116, 137, dissenting opinion; United States v. Plesha, 352 U.S. 202, 205.) The history of those Acts, as will be seen, demonstrates clearly that they were conceivéd and in- tended as entry and departure, border-control statutes only, designed primarily to prevent entries or departures ~ by spies, couriers or citizen foreign agents, and were not intended to impose or to authorize under their crim- inal sanctions geographical area travel prohibitions re- stricting the travel of persons lawfully qualified to travel generally. They were meant to regulate travelers not to censor destinations. (a) Thus, firstly, the legislative history of the orig- inal parent act, the Act of May 22, 1918, abundantly demonstrates ~ that Congres? object and concern in creating that Act was to deny exit and entry to any persons engaged during the then existing war in activ- ities in the interest of Germany and her allies. The purpose was to Close the borders to all egtries or exits not scrutinized through the-requirement of a passport, _ and by such scrutiny to exclude spies, saboteurs and agents of the enemy. ’ President Wilson, in calling upon Congress for the 1918 legislation said it was requiréd because the exigen- cies of the war made it “necessary . . . to create a very definite and’ particular control over the entrance and departure of all persons into and from the United —23—— or States.” (56 Cong. Rec. 18, 20.) The House Report upon the measure observed ‘that: existing law “leaves American citizens and neutrals perfectly free to come and go” across United States borders even though engaging in espionage or related activities, or suspected thereof, and concluded, “New legislation is the only remedy.” -(H. Rep. No. 485, “Control Of Travel From. and Into The United States”, 65th Cong. 2d Sess., pp. 2-3) In the Senate Mebates the spokesman for the bill said it was “supplementary to the espionage laws” and that its “chief object” was to scratinize and deny border passage to “aliéns and alien enemies and renegade citi- zens” engaging in or subserving espionage who “can now enter and depart without any power .. . [in the Government] to intercept or delay them.” (56 Cong. Rec. 6192.) In the House debates the House spokesman said the bill was “a much-needed measure to stop a gap” in the law; he said its “purpose is to give . . . the Government power to control ingress to and egress from the country”, power then lacking “even [as to] people,suspected of not being loyal . . . [or] in the employ of enemy governments.” (56 Cong. Rec. 6029.) Time and again in the debates on the 1918 ‘Act the purpose is reiterated to impose border éontrol, to scruti- nize all travelers in order to identify and deny exit or entrance to spies, agents and couriers and persons who _ have violated or are fleeing from the law.* Nowhere in the debates is there even a suggestion of any pur- pose\to either authorize or impose any regulation of the destinations of citizens innocent of any such character- *56 Cong. Rec. 5970, 6029-6031, 6066-6067, 6191-6192, 619- 6195 and 6248. MS : ; ‘ | ieee - istics.’ Within the contemplation of, Congress’ plain and evident purpose a citizen once qualifying generally | for a passport, and thus for. exit, might a freely wherever he might please. (b) The legislative history of the 1941 Act, the Act of June 21, 1941, is in all respects similar. The House spokesman for the’ 1941 bill, in, the House’ debates, de- ' Clared the bill’s “sole purpose” was to create “a sort of clearing house” over persons entering and leaving the country to ascertain “their reasons why they were going or coming .. . and whether they were engaged in espion- age, and whether their coming in or going gut would be inimical-"to the interests of the United States.” (87 start Cong.’ Rec. 5082.) There was no purpose ‘to interfere with the free afta full right to travel of anyone qualify- ing fot and entitled to the issuance of a passport. Thus a statement by a Department spokesman, read to the House, adfirmed that the bill’s concern was with “per- ons «, . engaged in espionage and subversive activities cr} in activities inimical to the best interests of op the United States”, and declared, “It is not contem- plated, should the proposed legislation be enacted into law, to restrict or to prohibit or in any way to impede the legitimate travel of citizens : . .” (87 Cong. ‘Rec. 5048, emphasis added.) This precise language was subsequently embraced in the concluding paragraph of the report of the Senate committee reporting on the bill, and was specifically i rated in the record of ‘the \ Senate debate. (87 Cong.” ems Sen. Rep. No. 444, 77th Cong. Ist Sess.) j 756 Cong. Rec. 5069-5971, 6029-6032, 6061-6068, 6191 6235. 6246-6248; H. Rep. No. 485, .65th Cong. 2d Sess., Sen. Rep. No. 431, 65th Cong. 24 Sess. : 25— { x Moreover again, as in the case of the 1918 Act, the debate attending the consideration and passage of the ‘ 1941 Act bespeaks repeatedly a Congressional purpose to close the borders to spies and Dereone: deemed dan- gerous to United States interests.* Again ‘nowhere in such debates in their entirety is there any_suggestion of purpose to impose or to authorize the issuance of regu- lations imposing area travel restrictions.® ; (2) Moreover, the limiting-import of the foregoing legislative history is corroborated by the form and cast- ing of the area restrictions undertaken by the Secretary of State during the operative periods of the current and predecessor statutes. There is a consistent history begin- ning under the predecessan statutes, continuing through the period of Congressional consideration of the pres- ent Section 1185 in 1952, ‘and extending long after 1952, of area restrictions cast in civil terms only. Fre- quently the Department specifically explained its geo- graphical limitations as carrying no criminal sanctions for noncompliance. (a) Prior to the enactment of Section 1185 on June 27, 1952 the Secretary of State proclaimed area travel restrictions upon five occasions within the periods of the operative effect of the 1918 and 1941 Acts ( mnt 1921 and 1941-1952).” These were: 1. Restriction in 1919' as to Germany (3 Hack- worth, Digest of International Law, 530) ; _ 987 Cong. Rec. 5325-5326, 5386, 5048-5053, 5386-5388, 7°87 Cong. Rec. 5047-5053, 5325-5326, 5385-5389. eee 1918 or was in effect by Presidential Proclamation tod 41, Stat ugust 8, 1918 and March 3, 1921. (40 Stat. 1829 ne cee 1353) The: 1941 Act was ia effec by: cnet Presidential proclamations and Congressional extensions from (This footnote is continued on the next page) —_- —26— 2. Restriction in 1950 as to Bulgaria and vita dared (22:Dept. St. Bull, 399) ; 3. Restriction in 1951 as to Czechoslovakia (24 : Dept. St. Bull. 932) ; 4. Restriction in 1951 as to Holgicy (26 Dept. ‘St. Bull. 7); 5; Restriction in 1952 as to East European coun- tries, China and the Soviet Union (26 Dept. St. Bull. 736). ¥ Without exception all of these area restrictions issued during the operative periods of the 1918 and 1941 Acts were cast in civil, safe passage terms only, without sug- géstion of relevance to the 1918 or 1941 Acts or to criminality. * Moreover, in two of the restrictions the civil-only, non-prohibitory nature of the restrictions was made par- ticularly clear and explicit. Thus, for example, in the 1919 restriction as to travel to Germany, the Department’s announcement indicated plainly that despite the restriction citizen travel to Ger- many without a: passport-was not prohibited but was _ merely placed at a trayeler’s own risk. In its announce- ment the Department declared that it was “not now issuing or authorizing issuance . - of passports for Germany” but that it “interposes no ee are to travel’ there without a passport by any person with. “important © . business”, though “such persons should understand cee they go upon their own responsibility and at their own risk. They cannot be guaranteed the same protec- Sst 5, Gy oe ae Sa ay ¢ 3, was in effect Preside Prscianmation 3004, January 17,,1953 (67 ao ~ ° —27— tion 2which they might expect under normal condi- tions," i bowietaides The clearest statement of the non-penal, non-prohibi- tory character of the Department’s area restrictions ap- . pears in the 1952 restriction of travel to East European countries, China and the Soviet Union.-As heretofore noted that Department declaration, issued May 1, 1952, - came immediately prior to the ‘enactment by Congress, June 2Z, 1952, of Section 1185, and. in the very midst of Congressional consideration of ‘that meastre. In the May 1, 1952 announcement the Department advised the public it was “stamping all passports not valid for trav- el” in the specified countries “unless specifically en- dorsed .. . for such travel.” However, declared the offi- cial press release, “In taaking this announcement the Department emphasized that this procedure in no way forbids American travel to those areas”, but amounts merely to a “taking [of] additional steps to warn Amer- ican citizens of the risks of travel in ,. . [such] coun- tries.”” | } _ “The full text of the restriction reads: “The Department is not now ‘issuing ‘or authorizing issuance or amendment of pass- for Germany. However, the ent interposes no ob- jection to the entry into Germany of Americans who have impor- tant and urgent business to ‘transact there. In view of the pres- ent situation, such persons should understand that they go upon their own se sibility and at yt ae ee Bri cannot be guaranteed the same protection whi ight expect under normal conditions.” (3 Hackworth, supra, p. 530.) .. The full text of the Department’s announcement (Press*Re- lease No. 341, 26 Dept. St. Bull. 736) reads as follows: -“The Department of State announced today that it was: tak- ing additional steps to warn American citizens of the risk of travel in Iron Curtain countries by stamping all not valid for travel in those countries unless ifically en- dorsed by the rtment of State for such travel. “In making this announcement, the Department emphasized that this procedure in no way forbids American travel to (This footnote is continued on the next page) « hd / —28— The 1952 reenactment of statutory language having this history of interpretation and application may be fairly said to carry an explicit purpose not to impose penalties to enforce area restrictions on travel. The Constitutional stature of the right of exit as delineated in Kent v.. Dulles, supra, would require a specific and articulated intent to impose such restrictions before the inferences drawn from this history could be prop- erly ignored. (b) The Department’s interpretation and application of the predecessor language in the 1918 and 1941 Acts has continued and even been underscored sinc€™énact- ment of Section 1185 to and until the very recent pres- ent. Since the enactment of Section 1185 the Department has announced area travel restrictions upon four occa- sions. These are: 1. Restriction in 1955 to Albania, Bulgaria, China, North Korea and North Viet Nam (33 Dept. St. Bull. 777) ; 2. Restriction in 1956 as to Hungary (34 Dept. . St. Bull. 247-248) ; 3. Restriction in 1956 as to Egypt, Israel, Jordan and Syria (35 Dept. St. Bulk 756, 21 Fed. Reg. 8577); : those areas. It contemplates that American citizens will con- sult the Department or the abroad to ascertain the dangers of traveling ‘n countries where ‘acceptable stand- seeted eaeneleny beseticceeh ts cst will be seemed follow ‘This Bana inf cand, Albena, Duinisie, Bulgaria, China, ungary, oumania or nion Some Solis Seaeches eons ga oo 4. Restriction in 1961 as to Cuba, involved at bar (26 Fed. Reg. 482 and 492). * Again, despite the full operative effect at all times of Section 1185 these proclamations unvaryingly have sounded in diplomatic, safe-passage terms only; none was said to Rave been issued under or be given criminal exit-control sanction by Section 1185. Thus, for example, the 1956 restriction as to travel to Hungary stated merely that the Department “is un- willing” “either to encourage or facilitate the travel of American citizens to Hungary”, and that passports would not be valid for travel thereto unless _ specially validated. No mention of Section 1185 or of its sanc- tions is made, despite its full operative effectiveness at the'time. (34 Dept. St. Bull. 247, 248.) Moreover, in two of the area restrictions here con- cerned, the one concerning Israel, Egypt, Jordan: and Syria in 1956 and the restriction concerning Cuba in | 1961 involved at bar, the Department expressly recited its promulgative authority only under the non-criminal power of.~the Act of July 3, 1926 (22 U.S.C. Sec. 211a), mot under the criminal ’ authority of. Section 1185. (21 Fed. Reg. 8577 and 26 Fed. Reg. 482 and 492.) Additionally, in 1954 the Department. by conduct ex- pressly construed the area restriction against travel .to Bulgaria and Hungary announced in 1950 as being non- penal and non-prohibitory. The.Department. in 1954 in- formed two newsmen desiring Yo enter Bulgaria that they might travel there without a passport and “use, as a travel document ,. . an affidavit in lieu of a pass- port”, and if Bulgaria would permit them entry: “the ‘ yi em pr se ‘ —3j3o— Department ... . [holds] no objection.” (Hearings on Department of State Passport Policy before the Senate Committee on Foreign Relations, 85th Cong., Ist Sess., April 2, 1957, p. 65; hereafter cited as 2997 Senate Hearings”. ) (c) Furthermore, it is of particular note and impor- tance that on two occasions the State Department has in express words conceded and declared that area travel restrictions are civil-passport regulations only, and are - not prohibitory in a penal sense. ‘The first occasion is the one already meritioned of the 1952 area restriction as to East Eur countries, China and the Soviet Union wherein ‘oo Bena sistent declared it wished to “emphasiz[e]” that its restriction “in no way forbids” travel by American citizens to the affected countries. The Special Committee to Study Passport Procedures of the Association of the Bar of the City of New York, which in 1958 completed a survey of passport and travel laws under a grant from the Fund for the Republic, noted this 1952 statement of the Department, and ob- served, “This appears to have been an honest admission of the lack of statutory power to enforce an area restric- tion of this nature.’”™ A secorid and critically important declaration by the Department that its area , revel restrictions do not criminally prohibit travel to” any affected countries un- der Section 1185 or otherwise, came in an official De- partmental communication to the Senate Foreign Rela- tions Committee in 1957. There the Committee called ~38Repott; “Freedom to Tra * (1958) issued by ‘the Special to S Procedures of the. Association of SoG the Cite of New York. page 70; cers ort te Se ee > = the Department’s attention specifically to its 1952 dec- laration referred to above that its.area restrictions “in no way forbi[d]” affected travel, and asked the De- partment squarely, “What does it mean when a pass- port is stamped ‘not valid to go to country X’?” Does such procedure, the Committee asked, mean merely that the United States “withdraws its protection” from and “does not approve” such travel, or does it mean the United States “prohibits the person from going to coun- try X?” (1957 Senate Hearings, supra, p. 56.) After two months of study, the Department officially replied by a communication to the Committee, July 5, 1957, that a restrictive stamping of a passport “means that if the bearer enters country X he cannot be’ as- sured of the protection of the United States . . . [but it] does not necessarily mean that if the bearer travels to country X he will be violating the criminal law.” (/d. at p. 59, emphasis added.) The Department said there were criminal laws “which might well be violated in the course of such travel”, mentioning “e.g. The Tradihg With The Enemy Act,” and, additionally, such travel might lead to the denial of a future passport ‘and might raise questions as to whether “false statements” had been made in obtaining the passport in question. But the mere travel to the area-restricted country in se would be no crime. No mention or citation was made of Section 1185 as even relevant to the issues posed, de- spite the thorough canvass of the law. _ Surely had the Department in thus communicating its considered views to the Senate committee truly. con- ceived that Section 1185 applied to make criminal a mere leaving of the United States to go to “country. X””, it would have said so. In. the premises its statement, with > =— its limiting connotations, is eloquent testimony that in truth the Department viewed its area restrictions under law as civil, safe-passage procedures only, not as crimi- nal-sanction measures of exit control. Moreover, the Department’s view of area restrictions as civil measures only is further corroborated by the failure of the Department until the instant case and two recent related cases ever to prosecute any person under Section 1185 or either of its predecessor statutes for violation of any of ‘the Department’s many area restrictions established during the operative periods of those statutes. Thus, as related in Umited States v. Laub, supra, 253 F. Supp. 433, 443-444, although De- partment statistics show that “approximately 600” per- sons have violated area travel restrictions since the en- actment of Section 1185 alone, the Department concedes that the instant prosecution and the prosecutions in Umited States v. Laub, in 1964, and in Worthy v. “United States (C.A. 5, 1964), 328 F.:2d 686, represent the first attempts by the Department ever to prosecute persons under Section 1185 for claimed violations of area travel restrictions. (d) Finally, that neither Section 1185 nor any other criminal law applies to give penal effect to area pass- port restrictions is confirmed by many recent calls upon Congress for legislation to amend Section 1185, or other laws, to provide such very effect, and by Con- gress’ repeated refusal to enact any of such proposals. Thus in 1957 the report to Congress of the United States Commission on Government Security, estab- lished by Public Law 304, 84th Congress, Ist Session (69 Stat: 595) to survey among other areas of law the area of travel and passport legislation, specifically rec- —3j3— 3 ommended that, “Title )8, U.S.C.A., section 1185(b), should be amended to e it unlawful for any citizen of the United States to travel to any country in which his passport is declared tp be invalid.” (Report, p. 475.) In like vein in 1958 the Special Committee to. Study Passport Procedures of the Association of the Bar of the City of New York published its Report heretofore : described. At page 70 of such Report the Committee pointedly stated its conclusion of the need for area travel criminal legislation. Said the Committee: “The Committee. has not discovered any statute which clearly provides a penalty for violation of area restrictions, and this seems to be a glaring omission if the United States is seriously interested _ in the establishment and enforcement of travel con- trols. Knowing violation of valid restrictions should certainly be subject to an effective sanction, which is not now the case.” On July 7, 1958, responsive to the Report of the Commission on Government Security above described and to this Court’s restrictive decision in Kent v. Dulles, supra; President Eisenhower recommended to Congress passag€ of legislation to provide, among other things, for “clear statutory authority to prevent Amer- icans from using passports to travel to areas where there is no means of protecting them, or where their presence would conflict with our foreign policy. objec- tives or be inimical to the security of the United States.” (104 Cong. Rec. 13062.) The legislation called for by the President was em- bodied in bills introduced in 1958 in the 85th Congress, 2d Session, introduced in the Senate as S. 4110,and in Cs 4 a ‘the House as H, R. 13318. Congressman Kenneth B. Keating, in introducing H. R. 13318, declared to the Congress : : “It . . . specifically authorizes the Secretary of State to designate as out-of-bounds to American passport holders certain areas of the world. Per- sons. who violate the law/would be guilty ofa mis- demeanor and liable to imprisonment for 1 year, or» a fine of $1000, or both.” (104 Cong. Rec. 13000.) Neither S. 4110 or H. R. 13318 was enacted into law. They died with the end of the 85th Congress. Con- gressional failure to act in these respects is not without significance for the issue here. This was failure to act in response to a formal message submitted by the President which particularly requested the imposition of criminal sanctions to enforce area restrictions. This failure came against a background of expressions of Congressional purpose to utilize Section 1185 for ends other than to authorize area restrictions, as well as a consistent pattern of administrative utilization of only the civil function (and not the exit control function) of passports in implementing area restrictions. In these lights, Congress’ failure to act suggests a declination to provide the Executive with sanctions it admitted were lacking and without which it had so-.long pre- scribed area travel restrictions.** Moreover, over 30 bills to accomplish, inter alia, the same ob- jectives were introduced in the 86th and i Congress ensue fhe lack, exiting. low of sanctions to area restrictions criminally appears from the nine (e) All of the foregoing legislative and administra- tive history, it is submitted, combines to establish four decisive things as to Section 1185. First, the history shows that Section 1185 was adopted by Congress on representations that it was to serve limited (border con- trol) purposes only and without suggestion of authori- zation fog criminal-sanction area restrictions. Second, the history shows that the Department, in prescribing area restrictions, has uniformly cast them only in terms Of the civil passport function of safe passage, and consistently construed Section 1185 and its predecessofs as inapplicable and irrelevant thereto. Third, the his- tory reveals two express declarations by the Depart- Poms cag a s understanding of the lack ofcriminal sanc- og eo his description of the relevant portions of his bill (S 86th Cong., Ist Sess.) : “Section 402 makes it unlawful for any citizen-. . . volun- tarily to travel to an country or area as to which there is in effect, to his knowledge, a declaration made and by the President under; Section 401(b). There is at present Bo tary tuthority, $n punish, travel abroed hy. passport holders in violation of geographic restrictions, and this presents a glaring "the Senate Conuniaes 04 Foren? try or area” deserted are-rentedy ee as: H.R. 9069 (86-1) (meaning. Cong., Ist Sess.) ; S. 209 pe pet Ss. (86-1) ; S652 { (86-2) ; maori 1); H.R. 1086 er) HR. 2485 (87-1) amend Section 11 Ce) to sae cximioal minal “rave oan county which which is paspor to be 4030 3): H.R. 37 me fee H.R. 2232 (86-1); H.R. 2468 “¥: ; H.R. 7315 (86- yea H.R. 388 (87-1); H gg Pong th (881) At hia ytd ot alt Ga. zens ma’ restrained” to area- i Pal hagas : H.R. 5455 (6.1), HR 8329 86-1) ; H.R. tah H.R. 2559 (88-1) ; H.R. 2596 (89-1). pecial bills having a effect as all of the inclade CHR 5 (88-1) ; H.R. 11621 (86-2); HR. (89-1). , Bee ment—one to the people and one directly to an agency of the Congress—officially advising that area restric- tions do not “forbid” free travel and are not criminal / in character. Finally, the history is climaxed and com- pleted by requests of the Congress by the President and the Department that the Congress enact new legislation to make violations of area restrictions criminally pun- ishable—requests which Congress has in all cases de- clined. All of this establishes a compelling record of ad- ministrative construction, with congressional acquies- cence, that Section 1185 does not authorize issuance un- der its authority of criminal-sanction administrative area travel prohibitions. “ a > II. - To Enforce the “Excluding Cuba” Regulation Under Section 1185 With Criminal Sanctions in the Premises at Bar Would Violate Due Process for Vagueness, Contradiction and Misleading Terms in the Communication of a Criminal Command. — In light of the many explicit and implicit indications by the Government prior to the instant prosecution that its area travel restrictions represented merely civil, safe- passage measures only, not criminal prohibitions, as re- lated above, and in light of the further circumstance (treated hereafter in detail under Point III mfra) that the Excluding Cuba Regulation at bar was ex- pressly promulgated not under Section 1185, with crim-" inal sanctions, but only under the Act of July 3, 1926, 22 U.S.C. Sec. 21la, a statute bearing no criminal sanc- tions, to sustain the conviction below would violate — “fundamental fairness” and basic due process require-’ ments forbidding vagueness and misleading and con- a iis tradictory terms in the communication of a criminal . command. me buf Consider the position of a citizen confronted with the Excluding Cuba Regulation. It, together with Public Notice 179 and Press Relase No. 24, purports to require a passport for travel to Cuba and to simultaneously pro- vide that all passports shall be “‘invalid for Cuban trav- el “unless specially endorsed”—a condition to be satis- fied only in the absolute discretion of the Department. Moreover it expressly declares it is*promulgated “under the authority of the . . . act of July 3, 1926,” a stat- ute providing no criminal punishment for violation of’ its terms ®r of regulations issued under it, not under Section 1185. Is the Regulation a criminal command or a mere civil, safe-passage measure ? The Regulation itself being unclear, and_reciting only civil authority for its promulgation, the citizén turns to the general law.. He examines there, Section 1185. He finds that that statute, as heretofore related, by its terms carries no suggestion of authority for area prohibitions upon travel destinations. The terms plainly import that a passport may. be either. required, or not required, for entries and departures, as regula- tions may provide, and even that passports may be de- nied to travelers deemed disqualified for cause, but there is no suggestion from the provisions of the statute that departures for particular countries as destinations may be prohibited by both requiring and ee « denying to all persons a passport therefor. od The ‘citizen smext turns.to. legislative.and: administra: tive history..He finds there, as heretofore related, that. both under Section 1185 and its two predecessor acts, 3 Bn Se the 1918 and 1941 Acts, area passport restrictions ap- ‘pear always to have been formulated and cast as civil, safé-passage procedures only, not as criminal travel pre* hibitions. Never in the expression of such passport re- strictions has the Department even referred to either Section 1185 or its predecessor acts. Instead the citizen finds the Department, as in the German travel restric- tion in 1919, advising the citizen merely that travel ' toa restricted area is “upon [a traveler’s] own responsi- bility and at [his] own risk,” and further declaring, as in the 1952 restriction, that area restrictions “in no way forbi[d]” affected travel but amount merely to “steps to warn . . . citizens of the risks” thereof. Ad- ditionally and to like effect he finds the Department in 1957 formally advising a Senate Committee, inquiring upon the very issue, that if a person travels to an area- restricted country the consequence is “that . . . he cannot be assured’ of the protection of the United States”, but that, as to mere innocent travel in se to such destination ‘the travel “does not . , . mean... [the traveller] will be violating the criminal law,” though if he otherwise transgresses in the course of such travel there may be criminal laws he might violate, ‘ ‘e.g., Trading with the Enemy Act.” The significance of the foregoing in terms of due process is that all of these matters of record—addressed to the public by of i depart spokesmen—ad- vise the citizen in substance and in core that area - passport travel restrictions are not criminal prohibitions but are civil, safe passage measures only, and that if a person is. willing to travel “upon [his] own responsi- bility and at [his] own risk” his otherwise lawful travel to any affected area will violate no criminal law. | \ : ° u* —j9— In such premises, now to reverse the Goverriment’s posi- tion and sustain a conyjction as ‘below for a claimed criminal violation of Section 1185 would be, in this Court’s words, “to sanction the most indefensible sort of entrapment by the State—convicting a citizen for ex- ercising a [right] which, the State clearly had told, him was available to him.” (Raley v. Ohio, 360 U.S. 423, 438; Cox v. Louisiana, 379 U.S. 559, 571; Stevens v. Marks, 383 U.S. 234, 245.) | The requirement of due process and of “fundamental fairness” (Scull.veVirginia, 359 U.S. 344, 353; John- son v. United States, 318 U.S. 189, 197; Watkins v. United States, 354 U.S. 178, 214) is that an accused may not be held to answ&r “for a crime he could not with reasonable certainty know he was committing” (Scull v. Virginia, supra). A criminal enactment must be so expressed as to give “fair warning” of what is meant to be prohibited (Bouie v. City of Columbia, , 378 U.S. 347, 355; United States v. Cardiff, 344.U.S. 174, 176; Raley v. Ohio, supra, 360 U.S. 423,°438: _ Stevens v. Marks, supra, 383 U.S. 234, 245); citizens must not “be misled” but must be “clearly apprised” of what the law condemns. (Johnson v. United States, supra, 318'U.S. 189, 197; Quinn v. United States, 349 U.S. 155, 166.) In consequence, criminal commands communicated to citiZens in conflicting or contradictory terms, or with misleading effect, necessarily offend due process, (United States v. Cardiff, supra, 344:U.S) 174; 176-177; Soul v.' Virginia, supra, 359 U.S. 344, '353; Raley #. Ohio, supra, 360 U.S: 423, 438: Stevens v. Marks, supra, 383 U.S; 234; 245; cf. John- son v. United States, supra, 318 U.S. 189, 196-197 ; Jones v. United States, 362 U.S. 257, 263-264.) —_40— It matters not that at bar the command was expressed in part merely by.g “regulation”. Regulations, in this Court’s words, in “practical effect” amount to “little laws” (United States v.. Mersky, 361 U.S. 431, 437), and when joined with criminal statutes to give crim- inal penalty must be judged under “the same strict rule of construction” and the same due process prohibi- tions against vagueness and ambiguity as apply to criminal statutes proper. (Kraus & Bros. v. United States, 327 U.S. 614, 621-622; United States v. Mersky, supra, 361 U.S. 431, 437.) Applicable here is the déctiicn in United States v. Mersky, supra. There a treasury regulation was am- biguous whether its provisions were intended to imple- ment one or the other of two statutes. If the regulation was meant to implement the first statute, dealing with customs collections, there would be no criminal violation posed by the conduct there in issue, but if the regulation related to the second statute, dealing with frauds upon the public as to the origin of imported goods, there would be posed a criminal violation. This Court declared there that the regulation must be construed under “the rule of. striet construction” and that a reading of the regulation “leaves the distinct impression” that it was meant only to implement the customs collection statute, not the statute as to public frauds. Affirming a dis- missal of the criminal charge, this Court observed, “If the intent were [to implement the second, not the first statute] it should not have been left to implication. There must be more to support criminal sanctions: [citi- zens] must not be left to guess the meaning of regula- tions.” (361 U.S. at p. 441.) condi ect In Kraus & Bros. v. United States, supra, 327 U.S. 614, the issue was whether a certain regulation issued under the Emergency Price Control Act of World War II prohibited per se all “tied-sales” (sales requiring the purchase of a a second commodity as a condition for purchasing a price-controlled commodity) in the sale and purchase of poultry, or only tied-sales requiring the purchase of worthless second commodities. The regu- lation was clear as to coverage of sales within the second, narrower category, but was ambiguous ; as to blanket coverage of all tied-sales per se. Observing that the power of an administrative officer to promul- gate regulations bearing criminal sanctions “creates a grave responsibility” whereunder “in a very literal sense the liberties . . . of others may depend upon his defini- tions and specifications”, the Court at page 621 de- clared that regulations must be made “explicit and un- ambiguous” to support criminal penalties, and ruled ‘the regulation there inadequate to penalize tied-sales not. in- volving valueless second commodities. The (Court said that regulations to support criminal enforcement “must adequately inform those who are subject to their terms what conduct will be considered . . . to bring the penal- ties . . . into operation”, and the “dividing line... . cannot be left to conjecture.” The prohibition intended by the regulation must be “so clearly expressed . . . that the ordinary person can. know in advance how to. avoid an unlawful course of action.” (327 U.S. at pp. 621- 622.) At bar the Cuban travel regulation, read with the public notice and press release issued simultaneously therewith, and read in. the light of the legislative and administrative history reviewed above, was at best con- SS es oo Ee re ee lit ow tradictory and conflicting as to its civil versus penal nature and character, and at worst affirmatively mis- leading. In either. case the conviction cannot Constitu- tionally stand. v United States v. Cardiff, supra, 344 U.S. 174, demon- strates the Constitution’s requirement and command. There a factory inspection statute appeared contradic- torily both to require consent to authorize an inspec- tion and to make nonconsent criminally punishable. The Court voided a prosecution thereunder for nonconsent, stating at page 176 that the statute gave no due proc- ess “fair warning” because “it gives conflicting com- mands. It makes inspection dependent on consent and makes refusal to Allow inspection a crime.” The Court concluded, “We Gannot sanction taking a man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to with- hold.” (pp. 176-177.) Even if it be assumed there were at bar some indica at some points of criminal prohibition, at least there is involved, in the words of the Cardiff decision, the giv- ing of “conflicting commands.” The State is making ee conduct it has many times in the past explicitly and implicitly indicated was only civilly disapproved. Thus the State is punishing in the defendant what the State’s prior declarations “on [their] face apparently gave [a citizen] the right to [do].” (344 US. at p. 177.) Also closely in point on the score here concerned is this Court’s decision i in Raley v. Ohio, supra, 360 U.S. 423. There a state investigating commission in effect assured certain witnesses appearing before it that they had available a privilege against self-incrimination and ® eadtines might rightfully refuse to answer questions. There- after, after the witnesses had so refused to answer, the state prosecuted them for criminal contempt, claiming . that an applicable state statute gave the witnesses auto- matic immunity, eliminating in law the privilege to re- fuse to answer. Upon review this Court voided the convictions there obtained, stating, “After the Commis- sion, speaking for the State, acted as it did”, to sustain the contempt judgments would be to sanction “convict- [ion] of a citizen for exercising a privilege which the State had clearly told him was available to him.” (pp. 425-426.) To like essential effect and accord are the decisions in Stevens v. Marks, supra, 383 U.S. 234, 244-246; Cox v. Louisiana, supra, 379 U.S. 559, 571; and Murphy v. Waterfront Commission of New York, 378 U.S. 52, 79-80. It can hardly be denied that the defendant acted plausibly and reasonably at bar in reading the Depart- ment’s Cuban area passport restrictions as bearing no criminal-prohibition sanctions under Section 1185. A like reading of area restrictions and Section 1185 was made by the Special Committee of the Association of the Bar of the City of New York in interpreting the Department’s 1952 statement that area restrictions “‘in no way forbi[d]” affected travel as “an honest admis- sion of the lack’of statutory power to enforce an area restriction.” The Comfyjttee, after long study of all of the travel and passport laws, reported it had “not discovered any statute which clearly provides a penalty for violation of area restrictions, and this seems to be a glaring omission . . .” (Report, “Freedom to Travel”, supra, p. 70.) ; ——4 4... Moreover, in premises parallel to those at bar a Dis- trict Court judge has but recently, read Section 1185 as not making penal travel contravening the Cuban area restriction. In the New York case joined herewith for argument, United States v. Lamb, the District judge refused to hold a departure for Cuba (after travel to Paris and Czechoslovakia) without a specially validated passport a violation of Section 1185, declaring “there is a gap in the law” failing to make such conduct penal. (United States v. Laub, supra, 253 F. Supp. 433, 460.) In United States v. Mersky, supra, as to the ambiguous regulations there which, as at- bar, could be read as either penal or nonpenal in the premises concerned, this Court in voiding the conviction noted, “A United States. district judge concurred in [the defendants’] reading of the regulation. In the framework of criminal prosécution unclarity alone is enough to resolve the doubts in favor of the defendants.” (361 U.S. at p. 441.) At bar, thus, even after long trial and appellate analysis and briefing it remains at least uncertain and debatable whether area passport travel restrictions are criminal and prohibitory in nature or are merely civil, safe passage measures. As this Court stated in Wat- kins v. United States, supra, 354 U.S. 178 at p. 214, “if [a] point is that obscure after trial and appeal,” with full legal analysis, then “certainly” it “was not adequately revealed” to the defendant as a layman- citizen at the time before prosecution when she had to read the law and determine its penal or permissive character to determine her conduct. “Fundamental fair- ness” demands that no citizen “be compelled to make such a determination with so little guidance.” [Jd.] Government “may not substitute’ for fair criminal legislative history “and thereafter hold in [criminal violation] those who fail fully to, perceive its subtleties.” (Stevens v. Marks, supra, 383 U.S. 234, 246.). Moreover, even if the defendant at bar “guessed” wrongly as to the nonprohibitory, noncriminal nature of area restrictions, there is lacking at bar the indis- pensable element of criminal scienter. Section 1185 pun- ishes only one who violates its terms “willfully”. (Sub- section (c).) In both a statutory and a Constitutional sense before a citizen may be validly prosecuted under such Section he must be made to know by Government that his act is grimmally prohibited and not merely civilly disapproved; without such awareness his state of mind lacks the “willfulness” required for criminal prose- cution. (Quinn v. United States, supra, 349 U.S. 155, 165-167, 170; Flaxer v. United States, supra, 358 U.S. 147, 151, 152; United States v. Murdock, 290 U.S. 389; Morissette v. United States, 342 U.S. 246; Lam* bert v. California, 355 U.S. 225; Smith v. California, 361 U.S. 147; Heikkinen v. United States, 355 U.S. 273, 279-280.) : travel unless specially validated ‘therefor in the discre- tion of the Secretary of State. But that Regulation, and/its accompanying Public Notice and Press’ Release, were expressly issued under the authority only of the civil Act of July 3, 1926, not under Section 1185. Thus the promulgative clause of the Excluding Cuba Regulation’is clear and specific. The official text Pf the _Regulation (Regulation No. 108.456) appears in Vol- Both promulgated, as hereafter noted, expressly under the sacl lacaeporated under Section 1186 cxpresaly 0, Prescot and i i expressly identi Proclamation No. 3004, 67 Stat. C31. —48— ume 26 of the Federal Register at pages 482-483. The promulgating clause. (excerpted for emphasis) reads specifically: “Pursuant to the authority vested in me. . . un- der the authority of .. . the act of . . . July 3, 1926, . . . I hereby amend paragraph (b) [of 22 C.F.R. 53.3] as follows. .. .’”* The criminal-sanction authority of Section 1185 is not invoked. The civil Act of July 3, 1926 merely grants the Secretary civil discretion to “grant and issue” pass- ports and does not purport to provide criminal punish- ment for violation of any regulation issued under its terms. —~ Thus the Excluding Cuba Regulation upon its face and by tts very terms is promulgated not under the criminal-penalty authority of Section 1185" but only under the authority of the Act of July 3, 1926, a civil act-providing no criminal sanctions for violation of reg- ulations issued under its authority. 1°The promulgative clause also invokes the authority of the Act of May 26, 1949, 63 Stat. 111, 5 U.S.C. Sec. 151c, the gen* eral rule-making statute affecting the Secretary of State; that for violations of ions issued under it, and being more gen- i tno Act et tate 1926, adds nothing thereto for the purposes here concerned. iP ance ih maphogpeirs Le (in parenthesis) between paragraphs of the Regulation ph yer in the Federal Register there is a ee Section 1185 names har hee =p not a part of the pro- clause or of the text of the R tion itself. This indi- cation = awareness of Section 1185 while not including it in the Regula- she Code of Feral Regus ke e- the legal authority of the R or sieads beet —49— Moreover that the Excluding Cuba Regulation was promulgated only under the civil Act of July 3, 1926 is ~ confirmed and heightened by the circumstance that Public Notice 179 (26 Fed. Reg. 492), issued simul- taneously with the Regulation and for the very pur- pose of communicating the same to the public, repeats the promulgative language of the Regulation and again invokes only the civil promulgative authority of the Act of July 3, 1926, making no reference whatever to Section 1185. or any other penal promulgative author- ity, or to any possible penal sanctions. Public Notice 179 (excerpted for emphasis) merely recites: “Therefore, pursuant to the authority of . . . the Act ., . of July 3, 1926... all United States pass- _ ports are hereby declared to be invalid for travel to or in Cuba...” (26 Fed. Reg. 492.) Additionally, that the Excluding Cuba Regulation was issued only under the civil sanctions of the Act of July 3, 1926, and not under the criminal sanctions or au- thority of Section 11485, is underlined and made even more plain by a comparison of its promulgative clause with the promulgative clauses of the original regula- tions under Section 1185 (constituting 22 C.F.R. Secs. 53.1 et seq. in the form pre-existing the Excluding Cuba Regulation). The original regulation issued un- der the 1941 Act as Departmental Order No. 1003, November 28,1941, 6 Fed. Reg. 6069, exempted citizens from requirement of a passport as to travel to Canada, Mexico and “the islands of the West Indies” and cer- tain other islands, but required passports for all other travel. This regulation was promulgated expressly “un- der authority of the act of . .. May 22, 1918... as amended by the act of . . . June 21, 1941.” (6 Fed. Reg. | a 6069.) This regulation was amended August 29, 1945, by Departmental Regulation 11, 10 Fed. Reg: 11046, to extend the exemption of citizens from requirement of a passport as to travel to “any. country or territory in North, Central or South America, or in any island ad- jacent thereto.” Again the amended regulation was promulgated expressly “under authority ... of the act of ... May 22, 1918... as amended by, the act of 4 Teane hy 1941. ” (10 Fed. Reg. 11046.) = 3 Moreover, when the above described original regula- tions, issued thus expressly under the 1918 and 1941 Acts, were adopted under Section 1185 after its en- actment in 1952 by the President on January 17, 1953, in Proclamation No. 3004, 67 Stat. C31, the President in declaring the said prior regulation should be adopted as regulations under Section 1185 expressly recited that he was “acting under . . . the authority vested in me by section 215 of the Immigration and Nationality Act [1.e., Section 1185].” (67 Stat. C31, C32.) Thus the contrast is complete. The original regula- tions, on-each occasion of enactment, were carefully promulgated under the criminal-sanction authority of the 1918 and 1941 Acts predecessor to Section 1185, and on the enactment of Section 1185 the said regulations were specifically adopted as regulations under Section 1185 by a presidential proclamation carefully reciting the criminal authority of Section 1185. The Excluding Cuba Regulation was not similarly issued but was is- sued and promulgated expressly only under the civil sec- tions and authority of the Act of July 3, 1926. In cofisequence a violation of the Excluding Cuba pores can be no crime. Section 1185(c) makes iminal only a violation of its own terms or of “any —51— . .. regulation issued thereunder.” The Excluding Cuba Regulation by its terms was not “issued thereunder” - but only “under the authority of ... . the act of ... July 3, 1926.” Hence there is no conjunction of statute and regulation to create any criminal command, or to express any declaration or fair warning thereof. It is basic in Federal criminal law that criminal com- mands must be strictly construed and must be con- fined to only that which is clearly expressed. (United States v. Weitzel, 246 U.S. 533, 543; McBoyle v. United States, 283 U.S. 25, 27; United States v. Res- nick, 299 U.S. 207, 210; Todd v. United States, 158 U.S. 278, 282; United States v. Harris, 177 U.S. 305, 309.) And this rule applies as well to criminal regula- tions as to criminal statutes proper. (United States v. Mersky, 361 U.S. 431, 440; Kraus & Bros. v. United States, 327 U.S. 614, 622.) This Court has said in Umited States v. Mersky (supra, p. 440), “In the con- text of criminal prosecution, we must apply the rule of strict construction when interpreting [a criminal] regu- lation and statute. United States v. Halseth, 342 U.S. 277, 280 (1952); United States v. Wiltberger, 5 Wheat, 76, 95-96 (1820).” A regulation has no force or operation as “law” ex- cept as it may be granted such force by an authorizing statute. (Williamson v. United States, 207 U.S. 425, 453 et seq.; United States v. Standard Brewery, 251- U.S. 210, 220; United States v. United Verde Copper Co., 196 U.S. 207, 215-216.) And, “Much more does this principle apply to a case where it is sought .. . to prescribe a criminal offense by the regulation of a de- partment. . . . It is necessary that a sufficient statutory authority should exist for declaring any act or omission a we a criminal offense . . .” (United States v. Eaton, 144 U.S. 677, 687-688.) There are, in Federal criminal law, “no common law. offenses” (United States v. Eaton, supra, at p. 687), and no “constructive offenses.” (Todd v. United States, supra, 158 U.S. 278, 282; United States v. Resnick, supra, 299 U.S. 207, 210.) Criminality can exist “only for . . . an act defined by statute, or by regulation having legislative authority, and then only if punishment is authorized by Congress” (Viereck v. United States, 318 U.S. 236, 241), and “[w]here the charge [as to a regulation] is of crime, it must have clear legislative basis.” (United States v. George, 228 U.S. 14, 22.) 7 The Excluding Cuba Regulation at bar does not evi- dence, in fact it negates, any “clear legislative basis” for a claim of “crime”’. It recites expressly civil promul- gation only. Yet, in this Court’s words, when a regula- tion is contended by Government to express or define a crime, “Congress has warned the public to look to that source alone [i.e., to the regulation] to discover what conduct . . . [will] create criminal liability.” (Kraus & Bros. v. United States, supra, 327 U.S. 614, 622.) The fact that a regulation and a statute have been united to create a criminal offense may not be ;‘left to implication” (United States v. Mersky, supra, 361 U.S. 431, 441) or to “conjecture”. (Kraus & Bros. v. United ’ States, supra, 327 U.S. 614, 621.) : sSiten Raat sthimabvid 'te:2: qatetionof etithohtning power and of fair warning. The authority of administrative officers'to enact regulations with the force of criminal sarictions must be grounded in an authorizing statute; it isan awesome power, involving “grave responsibility” (Kraus & Bros. v. United States, supra, 327 U.S. 614, — 53— 621), and is strictly circumscribed. Accordingly, even 'to. amend originally criminal regulations so that the amend- ment or change will also bear criminal force, the amend- ment must itself be duly issued under the authorization and authority of a statute providing criminal penalty for violation of regulations issued under it. The Act of July 3, 1926, under the authority of which alone the Ex- cluding Cuba Regulation was expressly issued, possesses and transmits no such authorizing power. Hence viola- tion of that regulation can be no crime. Moreover, by reciting civil authority only i in its ex- press declaration of its promulgative base, the Exclud- ing Cuba Regulation denies fair warning and, indeed, is affirmatively misleading to the public to whom it was addressed as to any claim now by the Government of criminal promulgative authority under Section 1185. A criminal statute warns by its terms of criminal penalty; the Excluding Cuba Regulation does not warn but af- firmatively misleads. At bar a citizen could surely read the promulgative clauses of the Excluding Cuba Regula- tion and of Public Notice 179, issued to publish and ¢om- municate’the Regulation, and reasonably infer from the express invoking of the authority of the Act of July 3, 1926 and the absence of any reference to any author- ity deriving from Section 1185, that the Regulation was. not issued ‘under sanction of Section 1185 arid’ hetice’ that violation would not and could not be chargeable ‘as’ a crime under said Section. To retroactively announce otherwise, and with criminal penalty, denies all. prin-. ciples of fair warning and notice. Applicable here, there- _ fore, are all of the authorities discussed under Point II above prohibiting ambiguity, contradiction and mislead- ing terms in the communication of a criminal command, = ‘Both for actual failure, then, of promulgation under the criminal-sanctions authority of Section 1185, and failure to make such authority and promulgation bly appear, the Excluding Cuba ee at bar cannot be enforced as a crime. IV. Construed to Authorize the “Excluding Cuba” Regu- lation at Bar, Section. 1185. Unconstitutionally Delegates Legislative Power Without Adequate or Any Standards. If Section 1185 be construed to grant authority to impose under its criminal-exit sanctions area travel pro- hibitions such as the Excluding Cuba Regulation at bar it then offends the Constitutional fundamental prohibit- ing delegation of legislative power without reasonable and sufficient standards. Article I, Section 1 of the \Constitution vests in Con- gress “All legislative powers herein granted” and under this exclusive grant it “is a principle universally recog- nized as vital to the integrity and maintenance of [our] system of government” (Field v. Clark, 143 U.S. 649,. 692) that Congress may not “abdicate, or . . . transf to others, the essential legislative functions with whi U. , 421; Schechter Corp. v. United States, 295 U. S, 495, 529.) “Zemel v. Rusk, supra, 381 U.S. 1, upheld area sravel restrictions against the charge of invalid delegation of legislative power only so far as the civil side of .the law affecting passports is concerned, judging such restric- tions only as diplomatic, safe-passage measures author- ized under the Act of July 3, 1926, 22 U.S.C. Sec. it is vested.” (Panama Refining Co. v. me 28 ¢ a 21 la, a civil-authorization statute without criminal sanc- tions. At bar if area restrictions are to be sustained ‘as authorized by Section 1185, with criminal enforcement sanctions, the authority delegated must be judged as a matter of delegated criminal powers. As this Court has noted, the two landmark delegation decisions,. Panama Refining Co. v. Ryan, supra, and Schechter C orp. v. United States, supra, were “both . . . cases deal [ing] with delegation of . . . powers to make federal crimes of acts that never ‘de been such before”, and “a dis- cretion to make regulations to guide [civil] action” may well be “constitutionally permissible” where in the same premises “it might not be allowable to authorize creation of new crimes in unchartered fields.” (Fahey v, Mallo- nee, 332 U.S. 245, 249-250.) The point is “the power of punishment is vested [exclusively] in the legislative . department” of Government. “It is the legislature . [alone] which is to define a crime, and ordain its punishment.” This is the “found[ation]” of the rule of strict construction of all criminal laws. (United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 93. ) Accordingly, Zemel does not control here. : Moreover, Zemel upheld the area travel restriction on Cuban travel under the civil Act of July 3, 1926 upon the sole basis of a premise not operative. here. The foundational premise of Zemel was that while. the Act of July 3, 1926 expressed. no delegation standard within its terms, there existed a ‘ consistent” history, of. prior administrative practice sustaining civil. area restric- tions under. prior statutes of which the 1926 Act was a reenactment, and hence Congress for civil _.urposes. might be deemed to have. adopted such prior practice. as .a sufficient standard for. the discretion delegated as ae under the 1926 Act. The Court ruled expressly that “the 1926 Act must take its content from history: it author- izes only those passport refusals and restrictions ‘which it could fairly be argued were adopted by Congress in light of prior administrative practice.’ . . . So limited, the Act does not constitute an invalid delegation.” (381 - U.S. at pp. 17-18.) - Even could such an informal premise of adoption of prior administrative practice operate to afford suf- ficient legislative standards for. a criminal statute, the premise in any event has no application in fact to the delegation of administrative ._powers under Section 1185 at bar. As heretofore seen the administrative prac- tice as to the issuance of area restrictions. under the operative periods of the 1918 and 1941 criminal Acts of which Section 1185 is a reenactment so far from show- ing a “consistent”, or any, practice of issuance of area restrictions thereunder, demonstrates affirmatively a clear administrative practice to the contrary. As hereto- fore seen, all area restrictions issued during the period of the criminal 1918 and 1941 Acts were unvaryingly formulated and cast as civil, safe passage measures only, without reference or conceived relevance to the criminal sanctions of the 1918 and 1941 Acts, and were cast in the Department’s words to “in no way forbi[d]” af- fected travel. Thus the prior ‘administrative practice preceding: the reenactment by Section 1185 of its predecessor statutes, the 1918 and 1941 criminal Acts, proves not the Prior reasonable exertion of criminal area-restriction powers but a denial and disclaimer thereof. Such a negating record clearly’ can’-afford no administrative base for supplying affirmative discretionary standards capable ¥* —57— of adoption by Congress in the enactment of Section 1185. ‘As this Court emphasized in Kent v. Dulles, supra, 357 U.S. 116, 129, “control over exit” requires an exer- _ cise of “the law-making functions of the Congress” and affects “activities or enjoyment, natural and ofterm nec- essary to the well-being of an American citizen”, and in consequence this rt “will construe narrowly all delegated powers” affecting exit. Section 1185 affects the right of exit directl , as the Act of July 3, 1926 in- volved in Zeme, t, and Section 1185 operates by cryninal command. Hence the scrutiny of the standards for delegated legislative powers under Section 1185 must be judged with “the tenderness of the law for the rights of individuals” required as to either the exercise or del- egation of criminal powers. (United States v. Wiit- berger, supra, 18 U.S. 76, 93; Fahey v. Mallonee, supra, 332 U.S. 245, 249-250.) The fundamental requirement of the Constitution as to delegation of legislative powers, and particularly criminal legislative powers, is that Congress “itself” must erect “the standards of legal obligation”. (Schech- ter Corp. v. United States, jupras295 U.S. 495, 530.) Congress must provide “an intelligible principle” to guide administrative regulations (Hampton & Co. v. United States, 276 U.S. 394, 409; Panama Refining Co. v. Ryan, supra, 293 U.S. 388, 430), and must “legislate +. as far as. [is] reasonably Gere atyicy hs v. Stnenehiee 192 U.S. 470; 496.) i It cannot be suggested that Heke ments have been satisfied at bar. Section 1. no standard and no “‘ntelligible principle”: ‘to guide ad- ministrative regulations issuable under its terms. Tt sim- & sd —§8~ ply authorizes “such limitations and exceptions” to its terms “as the President may authorize and prescribe”, and thus leaves the executive branch without standards whatever: No. standards cannot by definition be suffi- cient or adequate standards. And it cannot be said Con- gress has legislated'“‘as far as [is] reasonably practica- ble’ for if area restrictions were conceived desired at least a basic declaration affirming this and fixing mini- mum policy guides therefor could readily have been ex- pressed. V. Construed to Authorize the “Excluding Cuba” Regu- lation at Bar, Section 1185 Deprives Defendant of Personal Liberty and of Freedom of Speech, . Thought and Association, Contrary to the First and Fifth Amendments. The liberty of individual citizens to travel freely to all parts of our world is, in this Court’s words in Kent v. Dulles, “basic in our scheme of values”; it is “a part of our heritage.” (357 U.S. at p. 126.) It is a right which “was emerging at least as early as the Magna Carta” (#d., at p. 125; Article 42, Magna Carta) and it was recognized by Blackstone. (1 Blackstone Commentaries, 134-135.) It is “deeply engrained in oyr history” and “may be.necessary for a livelihood . . . [or], as close to the heart. of the individual as the prenin of what he eats; or wears, or reads.” (357 U.S: at p. 126.) Liberty of travel, moreover, is a freedom “closely re- lated to rights of free speech and association.” (A pthe- ker-v.. Secretary of State, 378 U.S..500, 517.) The Uni- _ versal Declaration of Human Rights relates it to the need of the people “to seek; receive and impart informa-. tion and ideas ..... regardless of frontiers.” (Articles onlin 19 and 13(2).) Liberty of speech protects “freedom of inquiry” and “‘ineludes . . . the right to receive” informa- tion and ideas as well as to express such (Griswold v. Connecticut, 381 U.S. 479, 482; Lamont v. Postmaster General, 381 U.S. 301, 305), and in Chafee’s words, ap- proved in Kent (357 U.S. at pp. 126-127), “travel abroad enables American citizens . . . to be well-in- formed on public issues” and thereby “contributes to sounder [democratic] decisions.” As Chafee puts it further, a “An American: who has crossed the ocean is not obliged to form his opinions about our foreign pol- icy merely from what he is told by officials of our Government or by a few correspondents of Ameri- can newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contrib- utes to sounder decisions at home.” Chafee, Three Human Rights in the Constitu- tion of 1787 (1956), pages 195-196. Defendant’s conduct at bar in connection with her travels to Cuba parallels precisely the democratic thesis . expressed thus by Chafee. Not wishing to be( “obliged to form [her] opinions about our foreign policy” as tn Cuba solely by what she might be ,“told by officials of our government or by a few correspondents of Ameri- can newspapers”, she trdvelled-there to see the land for herself. Moreover, as Chafee predicted, sa found: her “views on domestic questions” too were “enriched by seeing how [others]. are trying to solve similar. prob- lems.” In the words. of the Stipulation of Facts at bar, —H0— defendant travelled about Cuba observing “the living and, working conditions of the people and the effectua- tion and implementation of various government pro- grams relating to housing, education, agriculture, indus- trialization and public health’, and took -pictures of what she saw. [R. 52.] When she returned she “ap- peared before various groups and gatherings of her fel- low citizens” and told them of her experiences and ob- servations. [/d.] Thus did she as one citizen attempt to “contribute to sounder decisions at home.” She acted merely as one citizen-participant in the nation’s “free- dom of discussion”, which, in this Court’s words, “‘if it would fulfill its historic function . . . must embrace all issues about which information is needed or appropri- ate to enable the.members of our society to cope with the exigencies of their. period.” (Thornhill v. Alabama, 310 U.S, 88, 102; Wood v. Georgia, 370 U.S. 375, 388.) . As respects the subject of Cuba, the informed will of the American people bears upon questions of life and death, not only for themselves but for the planet as a whole. In such a context to say that the American people may know about Cuba only what appears in official declarations of policy is a travesty on the democratic process. Indeed to say that they may know only what is * reported by' those newsmen and businessmen whose trav- el' to Cuba the proponents of official policy may approve - is to offer sources ‘of information only slightly less re- “It is ‘no’answer to the needs of the American people for information on matters so grave to say that they pertain to foreign relations and that policy in these mat- ters may be determined by appointed officials. For this is to give officialdom the means of perpetuating itself —6|— ‘ and insulating its policies from public debate. At all events the people through their representatives are en- titled to vote on questions of war and peace and cer- tainly to petition their government concerning matters of foreign relations, The criminal proscription on trav- el invoked at bar substantially burdens and clogs the processes whereby our citizens can determine their own positions and exert informed pressure upon their repre- sentatives at the seat of government. So doing such pro- hibition violates the root premises of the First Amend- ment and of self government. It is true this Court in Zemel v. Rusk, supra, 381 U.S. 1, ruled the Department of State has Constitu- tional power to refuse to issue a passport valid for trav- el to Cuba under the civil safe-passage side of the pass- port powers. But involved at bar is a criminal prohibi- tion, not a civil withdrawal of a protective privilege. It is one thing to say that Government may deter- mine to withdraw from specificied parts of the world for reasons of foreign and diplomatic policy the priv- ilege of the diplomatic safe-passage protection af- forded by passports, and may require citizens if they travel to such areas to proceed on their individual re- sponsibility only. It is another thing entirely to say that Government may outright prohibit amy free travel to ’ administratively-listed areas of the globe on pain of criminal punishment even as to the citizens willing to travel without. diplomatic passport protection. It is the latter which is involved here. That issue was eX- pressly resefved in Zemel v. Rusk, and this Court should " now affirm that under the First and Fifth Amendments the Government may not prohibit and punish stich free, innocent travel. That power, ee / a peace as at bar, is inconsistent with the protected liberty of citizens in a self-governing nation. ° ‘Moreover, there is a feature of censorial, discretionary power in the restriction upon travel to Cuba at bar which is particularly offensive to personal liberty and to free- dom of speech, thought and association. The Excluding Cuba Regulation, read with Public Notice 179 and Press Release No,/24 issued simultaneously with it, does not simply and totally prohibit all travel to Cuba. Instead it prohibits such travel subject to censorial dis- cretion. Public Notice 179 (Appendix D; 26 Fed. Reg. 492) provides passports shall be “invalid for travel to or in Cuba”. “unless specially endorsed for such travel under the authority of the Secretary of State”, and Press Release No. 24 (Appendix E; 44 Dept. St. Bull. 178) provides that “exceptions” allowing travel to Cuba will be permitted only “to persons whose travel may be regarded as being in the best interests of the United States...” (Emphasis added.) Thus the regulatory ban considered in entirety vests the Secretary with “completely uncontrolled discretion” (Cox v. Louisiana, 379 U.S. 536, 557) to allow or disallow travel to Cuba at his arbitrary license. He has power, in this area of sensitive First-Amendment-con- nected liberty, “to act as a censor”, and, as well, to jeopardize “the right of [applicants for such travel] not to be denied equal protection of the laws.” (Id., at p. 557.) “It is clearly unconstitutional to enable a public official . . . to engage in invidious discrimina- tion among persons or groups . . . by use of a statute providing a system of broad discretionary licensing power” over First Amendment area rights. (Jd. at p. 557; Thornhill v. Alabama, supra, 310 U.S: 88, 97; aici, Kunz v. New York, 340 U.S. 290, 294; Saia v. New York, 334 U.S. 558, 560-561; Niemotko v. Mary- land, 340 U.S. 268, 271-272; Cantwell v. Connecticut, 310 U.S. 296, 305-307; Largent v. Texas, 318 U.S. 418, 422.) As stated by Commager, “If the right to travel abroad is to depend on the subjective judgment of some subordinate in the State Department as to whose travel is ‘in the best interests of the United States’, there is an end—in theory, at least—to freedom of travel. Who deter- mines what are the interests of the United States? Who determines whether a particular passport ap- plicant meets these murky criteria? If everyone who expects to travel must so comport himself as to sat- ~ isfy the notions of Federal bureaucracy about polit- ical ideas, associations,.and activities, control over travel may well become a powerful instrument for Federal control of thought.” Henry Steele Commager, as quoted in Hearings Before The Senate Committee on Foreign Re- lations On Passport Legislation, July 16, , 1958, 85th Cong., 2d Sess., p. 184. The power to censor travel, then, as one of the chan- nels of information affecting public opinion, is tanta- mount to improper administrative influence over the free molding of public sentiment. In Chafee’s words, such arbitrary, licensing power over the right’ of trav- el is to be condemned as “one of the worst evils of suppression of freedom of the press” because “[i]t en- ables. government officials to pursue their own policies. by keeping the public from learning facts and ideas 64 i which’ may throw doubt on the soundness of those poli- cies,” (Chafee, supra, at p. 196.) A statute creating arbitrary, censorial licensing power over First-Amendment-related liberties, as does the reg- ulatory ban on travel to Cuba at bar, is void upon its face and may be attacked by any citizen “whether or not he applied for a license.” (Freedman v.. Maryland, 380 U.S. 51, 56; Staub v. City of Baxley, 355 U.S. 313, 319.) “The power of the licensor . . . is perni- _ cious not merely by reasgn of the censure of par- ~ ticular comments but by reason of the threat [of such censure].” In consequence, “[o]ne who might have had a license for the asking may . . . call into ques- tion the whole scheme of licensing when he is prose- cuted for failure to procure it.” (Thornhill v. Alabama, supra, 310 U.S. 88, 97.) e No Sufficient Presidential Proclamations of Emer- gency Exist to Support the “Excluding Cuba” Regulation Under Section 1185 at Bar. ‘Section 1185 by its terms applies during peace time only (1) “during the existence of any national emer- gency proclaimed by the President”, and then only if (2) the President finds and further proclaims “that the interests of the United States require that restric- tions and prohibitions in addition to those provided otherwise than by this section be raners upon” entries and departures. . It is the contention of the Government that these proclamation requirements have been satisfied by Pres+ idential Proclamation No. 3004, January 17, 1953, 67 Stat. C31, attached hereto as Appendix F, and by Pres. ii idential Proclamation No. 2914, December 16, 1950, | 64 Stat. A454, attached hereto as Appendix G, which is referred to and adopted in Proclamation No. 3004. ' Defendant submits the statutory requirements have not been satisfied. (1) Firstly, Proclamation No. 3004 makes no proc- lamation of apprehended need for geographical area travel restrictions. Section 1185, in sedition to the proc- lamation of a general “emergency”, requires as a con- dition for any entry or departure restrictions sander its criminal sanction that the President find and pro- claim “that the interests of the United | States require” that “restrictions and prohibitions” upon entries and departures “in addition to those Provided otherwise than by this section” be imposed. Since civil restric- tions upon. area-restricted travel (withdrawal of the safe-passage “protections of a passport) clearly exist independent of Section 1185, the requirement of the statute is that before ‘its criminal saactions may be added the President must first find and proclaim a necessity therefor. What is required is a specific find- ing and proclamation of necessity for area or geograph- ical restrictions. Proclamation No. 3004 merely’ finds generally, and in blanket terms, that United States in- terests require exit and entry restrictions additional to those otherwise existing, but there’is no finding of necessity for geographical restrictions affecting a ‘stav- eller’s destination. Section 1185 is a criminal statute and must be nar- rowly construed, and its precondition that departure re- strictions must be found to be “required” miust be liberally interpreted in favor of the accused. This means, ~ 4 F ad: —6— ‘ it is believed, that as to all restrictions and prohibitions imposed under the statute the President must specif- ically find that the same, either individually or as a category, are “required” by “the interests of the United States.” Applied to the imposing of area destination restrictions—a cary of restrictions unique unto it- self and one requiring a different basis of justifica- ' tion than restrictions applicable to individuals—the stat- ure requires a specific finding of need for such regula- tions, either individually or at least as a class. Proclama- tion No. 3004 expresseS no sug finding under any view, and in consequence, for failure of one of its preconditions, Section 1185 cannot be applied at bar to enforce an area travel restriction such as the Ex- Aluding Cuba Regulation. . (2) In any event, no. valid, enduring national emer- gency is shown at bar under Proclamations Nos. 3004 and 2914 sufficient to satisfy the requirements of Sec- tion 1185. Proclamation No. 3004, issued January 17, 1953, merely proclaims “the national emergency the existence of which was proclaimed . . . by Proclama- tion 2914 still exists.” Proclamation No. 2914, issued December 16, 1950, in turn proclaimed “a national emer- gency” bottomed on the Korean War then obtaining; its base premise is now removed and the condition of emergency it declared no longer exists. The opening and controlling recital of Proclamation . No. 2914 reads: “WHEREAS recent events in Korea and else- where. constitute a grave threat to the pelice of the - world and imperil the efforts of this country and those of the United Nations to prevent aggression S and armed conflict; . . .” : 7 | — While there is general. reference thereafter in the Proclamation to “world conquest. by Communist impé- rialism” and to the importance of protecting the basic liberties of American life, it is plain that Proelama- tion No. 2914, issued December 16, 1950, is bottomed upon the Korean War. Proclamation No. 3004, issued January 17, 1953, merely reiterates by recital the “na- tional emergency . . . proclaimed . . . by Proclamation 2914.” Whatever may have been the situation in 1950 and 1953, clearly that situation does not exist today. The Korean War, which was the explicit occasion and basis for “the national emergency” proclaimed in Procla- », Mations Nos. 2914 and 3004, ended July 27, 1953. (13 Encyc. Brit. 467, 474.) There is, therefore, no rational basis for the interference with the basic right of travel today upon the basis an emergency no longer in ex- 2 send This Court is not controlled by an outdated execu- tive proclamation of an emergency which by passage of time has ceased to exist." The Court has independ- ent . right, and even duty, to inquire whether there is. in fact today such a national emergency as was pro- claimed in 1950 and 1953 by Proclamations Nos. 2914 and 3004 sufficient to justify the ‘criminal ‘restriction upon free travel in contest at bar. As stated by Mr. %8As stated, Proclamations Nos. 2914 and 3004 arose out of and spoke to the Korean situation which our government. charac- terized as aggressive warfare. Eight years , in 1961, the C ituati no resemblance to that in the ‘cil Justice Holmes in Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-548 (quoted and approved su ently in Baker v. Carr, 369 U.S. 186, 214): . [A] court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . And still more obviously, so far as this declaration looks to the future, it can be no more than prophecy, and is liable to be controlled by events. A law depending upon the existence of an . emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change, even though valid when past. . In our opinion it is open [to a court] to in- quire whether the exigency still existed upon which the continued operation of the law depended.” (264 U.S. at pp. 547-548.) Lacking at bar are the care and frequency with which: the legislature in East. New York Savings Bank v. Hahn, 326 U.S. 230, 234-235, reviewed the law there concerned from time to time, arid adjusted its terms, based in each’ case on a full investigation of the facts—displaying thereby “the “empiric process of legislation’ at its fairest.” Governmental powers ground- ed upon war emergency may not be “indefinitely pro- longed merely -by keeping alive a state of war that ha[s] in fact ended.” (Woods v. Miller, 333 US. 138, 147, Mr. Justice Jackson concurring. ) The lapse of time since the issuance of the proclama- tions here, together with the judicially noticeable mat- ters set out in this branch of the argument, render the proclamations presumptively inoperative. Surely ‘the changing kaleidoscopes of international relations and ] —§9— political maneuvers are not the sort of fact’ situations entitled to any presumption of continuance. Indeed, just the opposite of such a presumption would seem re- quired. (See, e.g. Maggio v. Zeitz, 333 U.S. 56; Colt v. United States (C.A. 5, 1946), 158 F. 2d 641; United States v. Patterson (CA. 2, 1955), 219 F. 2d 659.)) Vil. Defendant Departed Not for Cuba but for Mexico, .and Without Even Prior Request for Permission to Enter Cuba; Properly Construed and Con- stitutionally Limited, Section 1185 Does Not Reach Such a Departure. When defendant departed the United States on the dates charged in the indictment she went to Mexico, not to Cuba. Only after her United States departure, and after her arrival in Mexico in each instance, did she apply for and ultimately secure Cuban permission to enter Cuba. Accordingly, at the time of each of . her “departures” from the United States she had no ability to,. and she did not, “depart” without a: pass- port from the United States “for the Republic of Cuba” “a place outside the United States for which a valid passport is required” [Indictment; R. ‘1-2,. emphasis added] ‘within the meaning of Section 1185. | The facts dealing “with defendant’s departures on each of the dates charged in the indictment, January 22 and August 18, 1962, are set forth in paragraphs 4 and 7 of the Stipulation of Facts {R. 50-51]. On. each occasion she crossed the United States border into Mexico, without need for any travelling on the first occasion by airplane. on: the second; by automobile. In each instance “at ry time. she_.de- parted?’ she .‘‘did. not have Cuba’s’ permission to enter. _ Se _ ler. For-there to be a departure from the United Sta sien re and. she “intended to seek permission . . . to visit Cuba” from representatives of Cuba “in Mexico”. - Thus when she departed the United States she had no power fo; go to, or leave “for”, Cuba. She intended to seek permission to enter” Cuba only after arrival in~ - Mexico, end she in fact did.so apply and obtained . Guba’s permission to visit’ Cuba on the first occasion four days after her departure from the United States, and on the second occasion, twelve days after she de- parted the Unitéd States. Section 1185 covers only dpearture; it operates only on the ‘facts existing at the moment of such depar- ture. Properly construed and Constitutionally limited, it cannot -apply to the facts at bar. To say that de- parture can be rendered penal by a subsequent seeking and obtaining of permission to enter Cuba is to defy _ reason and to make the statute arbitrary and void in “its application under due process fundamentals. The facts are plain that on each occasion when the defendant left the United States, Cuba was not a country which had agreed to receive her as a visitor or travel- “for” a country, it must be a leaving for a country which is ready to receive the ‘individual concerned. (Heikkinen v. United States, 355 U.S. 273, , 276.) One cannot depart the country for passport purposes at large ‘ so to speak ‘or abstractly; one cannot obtain a passport to travel nowhere. One could sail out on the high seas far beyond the territorial limits and need no passport. He needs a, passport when he departs for another coun- try. He cannot depart to enter such a country unless _that country is ready-to receive him. Thus -at the time of her departure the defendant had neither the apparent nor the actual ability to go to fake, a _ Cuba, Whether sucheability would ever come into be- ing was unknown and ‘completely . beyond her ‘power. It was not, therefore, within her power’ to commit the of- fense charged. See United States: v. Moses (CA: 2, 1953), 205 F: 2d 358 and Liverman v. United States (C.A. 4, 1958), 260 F. 2d 284. Both of these cases _ dealt with the offense of possessing an unregistered- 2 still. In ach case the still had*been installed” but. was ~ not operable because of the need for repairs and adjust- ments. Since offense consisted of Possessing an operable still ula of "conviction were’ reversed. In the case at bar defendant’s conduct fell far short of that in the cited cases. Whatever her. state of mind - when she left the United States, the defendant was. unable «factually and legally to go to’Cuba until she obtained that country’s consent for her entry. She did - not have that consent’ when she left. the United States borders, and she did not even apply for it until after ~ she got to Mexico City. There is nothihg to show that she had even an assurance that such consent would be obtained when she applied. The consummation of her preparations rested upon facts and volition utterly in dependent of her conduct or will. — Thus the facts here fall short even of sitet: Cf. Lémke v. United States (C.A. 9, 1954), 211 F. 2a 73, cert. den. 347 U.S. 1013; United States v. Coplon (C.A. 2, 1950), 185 F. 2d 629. In those cases,the de- fendant had engaged in conduct falling just short of the completion of the crittie when his conduct was in- terrupted by police officers who sought’ to frustrate the defendant’s criminal purpose. In each case, , prepara- tions were extensive and the defendant’s criminal pur-. pose could have been accomplished by his own. voli- tion. and conduct but for the eer 6f. others. - _* ‘ } > ; = . “_ os 7 fe % ; : ilies Such is not the situation here where defendant’s prep- © arations coufd not bring her:even close to consummat- ing entry into Cuba, for that turned upon action ‘of the Cuban Government, utterly independent of her power and will. ¢ » The inapplicability of the statute at bar to a’ depar- ture such as the defendant’s can be well illustrated by asking that would happen under the statute as the Gov- ernment construes it if the defendant on arrival in Mex- ico and an requesting Cuban entry permission had been refused such permission, or, in “Mexico, had requested and obtained permission to enter Cuba but because of other circumstances did not in fact travel there. “a the Government’s thesis the offense would nonethe be complete because complete at the moment of d ing, regardless of whether travel to Cuba should -«ac- tually eventuate or not. =. : s The Government’s interpretation is unreasonable and arbitrary. The statute should be limited and construed not to apply to departures as at_bar- where at the time of departure there does fiot exist ability to enter (by existing permission) the country travel to which re- quires a passport -not possessed. ” Conclusion. | | . Wherefore, upon all of these weston and consider- ations set forth above, the judgment of conviction p De low should be reversed. Respectfully submitted, © Joun T. McTERNAN, A. L. Wir1n, Attorneys for Petitioner. ‘ Wittram B. Murrisx, - Of Counsel. \ v + © | APPENDIX A. Section 1185 of Title 8 of the United States Code enacted as Section 215 of the Immigration and Na- . tionality Act of 1952, Act of June 27, 1952, c. 477, Title II, c. 2, 66 Stat. ‘eon seer: in material part as * follows: Travel Control of Citizens and Aliens During War or National seksi stays nd Prohibi- tions oh Aliens. (a) When the United States 3 is at war or during the existence of any national emergency proclaimed by the President, or, as to aliens, whenever there _ exists a state of war between or among two or more states, and the President shall find that the interests of the United States require that restric- tions and prohibitions in addition to those provided otherwise than by this [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_IA40386412_0057%3A4. Public record. Not legal advice.