406 F.2d 1095 (5th Cir. 1969), 24243, Samora v. United States

Docket Nº:24243.
Citation:406 F.2d 1095
Party Name:Manuel SAMORA, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 30, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1095

406 F.2d 1095 (5th Cir. 1969)

Manuel SAMORA, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

No. 24243.

United States Court of Appeals, Fifth Circuit.

January 30, 1969

Page 1096

John P. Otto, Alamogordo, N.M., for appellant.

Harry Lee Hudspeth, Asst. U.A. Atty., El Paso, Tex., for appellee.

Before BELL, COLEMAN and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The Appellant was convicted by a jury of violating 22 U.S.C.A. § 1934 and regulations issued thereunder by attempting to export four pistols without obtaining an export license.

A customs agent stopped the car driven by appellant in the customs inspection area adjacent to an international bridge in El Paso, Texas, within a few feet of the actual exit to Mexico. Appellant stated he was going to Mexico and that he was taking no merchandise with him. The car was searched, without a warrant, and the pistols found concealed in a fender well.

Samora makes several arguments: the information against him did not state an offense; § 1934 is unconstitutional; the search of the car was illegal; an incriminating statement made by him should have been suppressed and was improperly admitted into evidence; evidence of theft of the pistols was improperly admitted into evidence; he was improperly denied the right to subpoena certain witnesses at government expense.

We deal initially with the contention that the information should have been quashed because it failed to state a crime. Appellant's argument runs this way. The information charges an attempt to export firearms. Sec. 1934 1

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does not make the attempt to export a crime. The section delegates to the President only that power referred to in the second sentence of subsection (a), the power to designate what shall be considered as 'arms, ammunition, and implements of war.' Therefore, the attempt provisions of 22 CFR § 126.01, 2 being beyond the subject matter as to which power is conferred on the President, have no application. Also, since there is not federal common law of crimes the elements of the offense must be stated in the statute itself. Because Congress has chosen on other occasions to expressly create attempt offenses 3 and did not include attempt language in § 1934 there was no congressional intent to create an offense of attempting to export firearms. 4

Appellant's argument is based on a misreading of the statute. The President, by the first sentence of § 1934, is 'authorized to control, in furtherance of world peace and the security and foreign policy of the United States, the export and import of arms, ammunition and implements of war.'

Also appellant says that the language of subsection (b) of § 1934 causes the statute to reach only one who 'engages in the business of manufacturing, exporting, or importing any arms, ammunition, or implements of war * * * designated by the President under subsection (a),' and does not reach the isolated act of one not engaged in the business. But subsection (c) is in terms of violation by 'any person' who violates any rule or regulation issued under the section or wilfully makes an untrue statement or omits a material fact in a registration or license application. The regulation requiring a license to export the items listed by the President, 22 CFR § 123.02, 5 is not limited to the export by one engaged in the business. Nor is the regulation providing for applications for licenses so limited. 22 CFR § 123.01. 6

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Next we consider the constitutional questions raised by appellant related to delegation of power to the President by the Congress.

The delegation to the President by subsection (a) of the power 'to control, in furtherance of world peace and the security and foreign policy of the United States, the export and import of arms, ammunition, and implements of war, including technical data relating thereto,' is directed to the conduct of international affairs, in which the executive branch of our government traditionally has been dominant. In the field of foreign affairs the authority delegated to the President may be broader and the requisite standards more general than in matters purely domestic. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). We conclude that the policy is sufficiently defined and the standards sufficiently definite that the delegation by § 1934 is constitutional. United States v. Rosenberg, 150...

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