Case 1:08-cr-20612-PAS

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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 1

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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

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 defendants and that in the sensitive business of exporting military items, the statute and its implementing 2

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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

regulation more than suffice to put exporters on notice to consult the applicable regulations and, if necessary, 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 be dissipated 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

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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. AlArian, 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

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 (5th 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) (rejecting vagueness 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).

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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. 5

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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.

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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 Damian Melissa Damian Assistant United States Attorney Florida Bar No. 0068063 99 Northeast 4th Street Miami, Florida 33132-2111 Tel: (305) 961-9018 Fax: (305) 536-4675 RYAN P. FAYHEE Special Assistant U.S. Attorney Illinois State Bar No. 6281368 Trial Attorney Counterespionage Section National Security Division U.S. Department of Justice 1400 New York Avenue, NW Washington, DC 20005 Telephone: (202) 307-1187 ryan.fayhee@usdoj.gov

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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 Damian Assistant United States Attorney