doc.176.pdf
TRANSCRIPT
-
7/30/2019 Doc.176.pdf
1/8
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 08-20612-CR-SEITZ
Magistrate Judge John J. OSullivan
UNITED STATES OF AMERICA
vs.
TRAIAN BUJDUVEANU,
Defendant.
________________________________/
GOVERNMENTS RESPONSE IN OPPOSITION TO DEFENDANT
TRAIAN BUJDUVEANUS MOTION TO DISMISS
The United States of America, through undersigned counsel, files this Response in
Opposition to Defendant Traian Bujduveanus Motion to Dismiss, filed March 2, 2009
(D.E.168). In the face of the overwhelming weight of authority to the contrary, the Defendant
contends that the International Traffic in Arms Regulations, 22 CFR Parts 120-130 ("ITAR"),
which implement the Arms Export Control Act, 22 U.S.C. 2778 ("AECA"), violate minimal
due process standards because the regulations are "ambiguous" and "fail[] to give a citizen fair
warning of what parts need a license to be exported." (D.E. 168 at 2). Just as previous
challenges have failed, so too should this perfunctory attempt to invalidate the ITAR.
Accordingly, for all the reasons that follow, this Court should deny the Defendants Motion.
A. The ITAR Provided the Defendant a Fair Warning of Prohibited Conduct
The vagueness doctrine reflects fundamental principles that criminal prohibitions must
give a person of ordinary intelligence fair warning as to the range of conduct that is prohibited,
and must establish adequate guidance to avoid arbitrary or discriminatory enforcement. Grayned
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 1 of 8
-
7/30/2019 Doc.176.pdf
2/8
1
See also, U.S. v. Lee, 183 F.3d 1029,1032-33 (9th Cir. 1999) (holding that the AECA and its
implementing regulations were aimed at a narrow group of persons which included the defendantsand that in the sensitive business of exporting military items, the statute and its implementing
2
v. City of Rockford, 408 U.S. 104, 108-109 (1972). Therefore, the purposes behind the
vagueness doctrine are twofold: (1) to ensure that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, and (2) to ensure that laws provide explicit
standards for those who apply them so as to prevent arbitrary and discriminatory enforcement.
United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988). To satisfy this standard, the
government need not define an offense with mathematical certainty, Grayned, 408 U.S. at 110,
but must only provide relatively clear guidelines as to prohibited conduct. Posters N Things,
Ltd. v. United States, 511 U.S. 513, 525 (1994). See also, United States v. Curtiss-Wright
Export Corporation, et al., 299 U.S. 304, 327 (1936) (in a case considering the constitutionality
of an early predecessor to the AECA, Justice Sutherland noted that an impressive array of
legislation such as we have just set forth, enacted by nearly every Congress from the beginning
of our national existence to the present day, must be given unusual weight in the process of
reaching a correct determination of the problem.).
The AECA and the ITAR clearly communicate to a reasonable person of ordinary
intelligence that the exportation of materials contained on the United States Munitions List
without a license is illegal. Due process challenges to the ITAR and other similar export control
regulations have been roundly rejected by other courts throughout the country. See, e.g., United
States v. Sun, 278 F.3d 302, 308-10 (4th Cir.2002) (holding in an AECA prosecution that a
person of ordinary intelligence, especially business people as knowledgeable as the defendants,
would understand what conduct is illegal).1
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 2 of 8
-
7/30/2019 Doc.176.pdf
3/8
regulation more than suffice to put exporters on notice to consult the applicable regulations and, ifnecessary, contact the appropriate government agency to resolve any perceived ambiguity); United
States v. Swarovski, 592 F.2d 131, 133 (2d Cir.1979) (predecessor statute prohibiting export of
Munitions List items was not unconstitutionally vague, as regulation was aimed at exporters and put
them on notice of licensing requirements).
2
See also, United States v. Maude, 481 F.2d 1062, 1069 (A good deal of ambiguity can bedissipated when the statute adds as a condition that the conduct is criminal only in case the accused
knows that what he intends is wrong.) (citation omitted); United States v. Hescorp Heavy
Equipment Sales Corp., 801 F.2d 70, 77 (2d Cir.), cert. denied, 479 U.S. 1018 (1986) ([A]requirement of willfulness makes a vagueness challenge especially difficult to sustain.).
3
B. The Burden to Prove Willfulness Cures any
Supposed Ambiguity in the Regulations
The AECA contains a scienter requirement. The statute states: Whoever
willfully violates any provision ... of this title.... 22 U.S.C.A. 2778(c) (emphasis added). This
protects the innocent exporter who might accidently and unknowingly export a proscribed
component or part whose military use might not be apparent through physical appearance. Lee,
183 F.3d at 1033 (9th Cir. 1999). See also United States v. Makowski, 120 F.3d 1078, 1081 (9th
Cir.) (rejecting a vagueness challenge to a statute prohibiting violent conduct based on racial
animus in part because of the statute's scienter requirement), cert. denied, 522 U.S. 1019, 118
S.Ct. 610, 139 L.Ed.2d 497 (1997).2
Nearly all Circuits have interpreted the willfulness element in export statutes to
require that the government prove the defendant voluntarily and intentionally violated a known
legal duty not to export the proscribed articles. See, Bryan v. United States, 524 U.S. 184, 190,
193, 196 (1998) (...the person need not be aware of the specific law or rule that his conduct may
be violating. But he must act with the intent to do something that the law forbids.); see also
United States v. Gregg, 829 F.2d 1430, 1437 (8th Cir.1987) (stating that the AECA is as simple
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 3 of 8
-
7/30/2019 Doc.176.pdf
4/8
3
United States v. Brodie, 403 F.3d 123, 147 (3d Cir. 2005) (same); United States v. Homa
International Trading Corp., 387 F.3d 144, 147 (2d Cir. 2004) (same); United States v. Hsu, 364
F.3d 192, 198 n.2 (4th Cir. 2004) (same); United States v. Dien Duc Huynh, 246 F.3d 734, 740-42(5th Cir. 2001) (definition of willfulness); United States v. Tooker, 957 F.2d 1209, 1214 (5 th Cir.),
cert. denied, 506 U.S. 864 (1992) (definition of willfulness); United States v. Tsai, 954 F.2d 155,162 (3d Cir.), cert. denied, 506 U.S. 830 (1992) (definition of willfulness); United States v. Murphy,852 F.2d 1, 7 (1st Cir. 1988), cert. denied, 489 U.S. 1022 (1989) (listing of basic elements and
definition of willfulness); United States v. Beck, 615 F.2d 441, 449-50 (7th Cir. 1980) (same);
United States v. Lizarraga-Lizarraga, 541 F.2d 826, 828-29 (9th Cir. 1976) (definition of willfulness).
4
See also, U.S. v. Anvari-Hamedani, 378 F.Supp.2d 821, 830-831(N.D. Ohio 2005) (rejectingvagueness claim, finding that, combined with the willfulness requirement in IEEPA, the
Presidents Order, enacted pursuant to that section, is not unconstitutionally vague); United States
v. Lindh, 212 F.Supp.2d 541, 574 (E.D. Va. 2002) (same); United States v. Geissler, 731 F.Supp.
93, 100-101 (E.D. New York 1990) (rejecting vagueness challenge to export control regulations,noting that [a] review of the precedents reveals that as applied vagueness challenges to export
licensing criminal statutes and regulations have been rejected by federal courts).
4
a matter as forbidding a passenger to ride on a train without a valid ticket and rejecting the
argument that the statute, which requires a knowing and willful export of Munitions List items,
was unconstitutionally vague in violation of due process).3 B e c a u s e o f t h e w i l l f u l n e s s
requirement contained in the AECA and other export control statutes, courts have repeatedly
held that the implementing regulations withstand vagueness challenges. See United States v. Al-
Arian, 308 F.Supp.2d 1322, 1341 (M.D. Fla. 2004) (IEEPAs willfulness requirement permits
court to avoid considering whether [OFACs Specially Designated Terrorist] regulations are
unconstitutionally vague . . . .).4
In this case, the Defendant will have every opportunity to argue to the jury that he
did not intend to violate the law or that he did not know that he was violating the law. The
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 4 of 8
-
7/30/2019 Doc.176.pdf
5/8
5
United States will then present evidence to the contrary, including, for example, substantial
direct and circumstantial evidence that the Defendant knew that he was exporting military items,
that he knew that he was engaged in illegal conduct, and that he took deliberate measures to
avoid detection by government enforcement agencies. Because the jury will ultimately decide
whether the Defendant knew that his conduct was unlawful, any supposed vagueness in the
statute or regulations can not and does not offend due process.
Accordingly, to the extent the Defendants Motion to Dismiss is based on a due
process challenge to the AECA, Defendants Motion is without merit and should be denied.
C. Evidence of Defendants Knowledge That His Goods Were Destined for Iran
In his Motion to Dismiss, Defendant also sets forth a brief claim that the discovery in
the case does not reveal that Defendant knew that the parts he sold in this case were destined for
Iran. Putting to one side the accuracy of this statement, it is important to note that the questions
of intent or the Governments burden of proof should not be considered on a Motion to Dismiss
the Indictment. To the extent that it is nevertheless relevant to the Courts disposition of the
Motion, the discovery provided to the Defendant does very clearly demonstrate the Defendants
knowledge that his customers were in Iran and, therefore, that his behavior was unlawful.
For example, during searches of the Defendants business and computers, the agents
located many requests for quotes (RFQs) for aircraft parts from Iranian customers - in other
words, when not sending RFQs through co-defendant Keshari, the Iranian customers were
sending quotes directly to this Defendant. Of particular note, many of those RFQs are identical
to the RFQs sent by co-defendant Keshari to this Defendant. In fact, at least one of the RFQs
was found with a note from an Iranian customer which advises this Defendant that P.S. you
may have received the same list from Mr. Keshari.
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 5 of 8
-
7/30/2019 Doc.176.pdf
6/8
6
Other examples of the Defendants knowledge that the munitions were destined for
Iran include the Defendants own email to co-defendant Keshari in which he tells Keshari that he
knows Kesharis customers (all of whom are in Iran). This particular evidence will be further
corroborated by co-defendant Kesharis anticipated trial testimony. Finally, the Defendant
cannot ignore the fact that he was supplying parts for the F-14 Fighter Jet, an aircraft known to
the general public (not to mention someone as knowledgeable about the aviation industry as the
Defendant) to be flown in only one country: Iran. These instances should not be construed as an
exhaustive list of the Defendants willful behavior, but only a sampling of the evidence
contained within the discovery previously provided to the Defendant.
Again, whether there is evidence to substantiate the charge that the Defendant
knowingly violated the Iran Embargo is not the issue now before the Court because it is not
relevant to the question of whether the Indictment should withstand a Motion to Dismiss. To the
extent that Defendant seeks to rely on such a claim in support of his Motion to Dismiss, the
assertion is wholly without merit, and the Motion should be denied.
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 6 of 8
-
7/30/2019 Doc.176.pdf
7/8
7
Conclusion
For all of the foregoing reasons, the United States respectfully requests that the Court
deny the Motion to Dismiss.
Respectfully submitted,
R. ALEXANDER ACOSTA
UNITED STATES ATTORNEY
By: s/Meissa DamianMelissa Damian
Assistant United States Attorney
Florida Bar No. 006806399 Northeast 4th Street
Miami, Florida 33132-2111Tel: (305) 961-9018Fax: (305) 536-4675
RYAN P. FAYHEE
Special Assistant U.S. AttorneyIllinois State Bar No. 6281368
Trial Attorney
Counterespionage SectionNational Security Division
U.S. Department of Justice
1400 New York Avenue, NWWashington, DC 20005
Telephone: (202) 307-1187
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 7 of 8
-
7/30/2019 Doc.176.pdf
8/8
8
CERTIFICATION OF SERVICE
I HEREBY CERTIFY that on March 19, 2009, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF.
s/Melissa Damian
Melissa DamianAssistant United States Attorney
Case 1:08-cr-20612-PAS Document 176 Entered on FLSD Docket 03/19/2009 Page 8 of 8