Case 1:08-cr-20612-PAS

Document 168

Entered on FLSD Docket 03/02/2009

Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No: 08-20612-CR-SEITZ/OSULLIVAN

UNITED STATES OF AMERICA ) ) Plaintiff, ) vs. ) ) TRAIAN BUJDUVEANU, ) And ) ORION AVIATION CORP. ) ) Defendant. ) ____________________________ ) MOTION TO DISMISS COMES NOW the defendant, TRAIAN BUJDUVEANU and ORION AVIATION CORPORATION, by and through Undersigned Counsel, respectfully files this Motion to Dismiss the Indictment in this matter. STATEMENT OF THE FACTS The Defendants are charged in various counts with violation of the Iran Trade Embargo and the Arms Export Control Act. The Arms Export Control Act, 22 U.S.C. sec. 2778 (1988), authorizes the President to control the export of defense articles. The Department of the State, exercising the President's authority to control the export of defense articles, promulgated the International Traffic in Arms Regulations (ITAR) which includes the United States Munitions List. The United States Munitions List consists of categories of defense articles that cannot be imported or exported without a license.

Case 1:08-cr-20612-PAS

Document 168

Entered on FLSD Docket 03/02/2009

Page 2 of 4

The Defendants are charged with exporting five (5) Harness Assemblies for the F-14 Fighter Jet (Count 8) and ten (10) Accumulators for the F-14 Fighter Jet (Count 9) which the Government contends are items designated as defense article in Category VIII(h) of the United States Munitions List without first obtaining a license to do so. Category VIII(h) of the United States Munitions List, however, does not list these items specifically. Rather it states: (h) Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraph (a) through (e) of this category, excluding aircraft tires and propellers used with reciprocating engines. 22 CFR, section 121.1 Category VIII(h). Subsections (a) through (e) referred to above also does not enumerated the specific parts which the Defendant is charged with exporting. Section 121.1(a) of the United States Munitions List states, in part, that "information and clarification on whether specific items are defense articles and services under this subchapter may appear periodically in the Defense Trade News published by the Center for Defense Trade." 22 CFR, section 121.1(a). The language of The International Traffic in Arms Regulations is ambiguous and fails to give a citizen fair warning of what parts need a license to be exported. The United States Munitions List does not enumerate specific military parts; rather, it only says items designed for a military application are subject to the International Traffic in Arms Regulations. The language of the United States Munitions list is vague and, therefore, violates Due Process. MEMORANDUM OF THE LAW The Due Process clause of he United States Constitution requires that citizens receive fair warning, "in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. McBoyle v. United States, 283 U.S.25, 27, 51 S.Ct. 340 (1931). The conduct that a

Case 1:08-cr-20612-PAS

Document 168

Entered on FLSD Docket 03/02/2009

Page 3 of 4

statute prohibits must be clear at the time of the defendant's conduct. If the terms of a statute are so vague that "that men of common intelligence must guess at its meaning and differ as to its application", it violates Due Process. The United States Munitions List does not enumerate the specific military parts that may not be exported; additionally, the list is subject to change at the whim of the government with notice periodically in the Defense Trade News published by the Center for Defense Trade. The placement of an item on the United States Munitions List is a political decision made by the Executive Branch of the Government, and, therefore, is non-justiciable. United States v. Martinez, 904 F.2d 601, (11th Cir. 1990). While the courts must accept the determination as to articles on the list as a matter of law (Unites States v. Spaw Optical Research, Inc., 864 F.2d 1467 (9th Cir. 1988), the List must still give citizens fair warning so as not to violate Due Process. It is clear that the Defendants did not have fair warning of what was on the United States Munitions List. Thus people of common intelligence in the Defendant's field would not have common knowledge that the parts sold to Keshari would violate the International Traffic in Arms Regulations and the United States Munitions List. For the forgoing reason, the counts as charged violate the Defendant's rights to substantive Due Process. The counts, therefore, must be dismissed. Moreover, because a review of the discovery with respect to charged conduct does not reveal that the Defendant would have known that any of the parts sold would go to Iran, undersigned counsel moves to dismiss the remaining counts of the indictment as well. In view of the forgoing your undersigned respectfully requests that this instant motion be granted.

Case 1:08-cr-20612-PAS

Document 168

Entered on FLSD Docket 03/02/2009

Page 4 of 4

Respectfully submitted, s/ *Michael B. Cohen, Esq.* _________________________ Michael B. Cohen, Esq. Florida Bar No: 210196

CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing was furnished via CMECF this March 2, 2009 to all applicable parties.

Respectfully submitted, s/ *Michael B. Cohen, Esq.* _________________________ Michael B. Cohen, Esq. Florida Bar No: 210196 6400 North Andrews Ave Ste 460 Fort Lauderdale, Florida 33309 Ph (954) 928-0059 Fax (954) 928-0829