United States v. Laub (253 F. Supp. 433, 1966)

ZAVATT, Chief Judge.

This case relates to a trip to Cuba made by fifty-eight American citizens who departed from the United States in June 1963 via air transportation out of Idle-wild International Airport (now known as Kennedy International Airport and hereinafter referred to as Kennedy Airport) ; entered Cuba, where they remained for approximately two months; returned therefrom to the United States, entering at Kennedy Airport on August 30, 1963.

The defendants were indicted, charged with having conspired among themselves and with Salvatore Cucchiari and Ellen Irene Shallit (named as co-conspirators but not as defendants) to induce, recruit and arrange for the group to depart from the United States for the Republic of Cuba “without bearing a valid passport for the Republic of Cuba,” and to violate 8 U.S.C. § 1185(b) and regulations issued thereunder. See notes 27, 28, 32, infra. The indictment also charges the defendants Laub, Luce and Martinot with having departed from the United States for the Republic of Cuba and with having entered the United States “without bearing a valid passport.” For the reasons hereinafter stated, the court is compelled to find the defendants Laub, Martinot and Schlosser not guilty on the counts of the indictment in and by which they are charged, i. e., Counts One, Three and Five as to the defendant Laub; Counts One, Two and Seven as to the defendant Martinot; Count One as to the defendant Schlosser. The indictment is still pending as to the defendant Luce. See note 2, supra.

The evidence on the trial suggests that, had the matter been so presented, a grand jury might well have indicted some or all of the four defendants for (1) having knowingly made false statements in their applications for permission to depart from the United States, in violation of 8 U.S.C. § 1185(a) (3) ; (2) for having made false statements in their applications for passports, in violation of 18 U.S.C. § 1542; (3) for having used their passports, the issue of which was secured by reason of false statements, in violation of 18 U.S.C. § 1542; “(4) for having conspired to induce others to make false statements in their applications for passports, in violation of 18 U.S.C. § 1542.” The evidence suggests, further, that a grand jury might well have indicted at least the defendant Laub, charging him with having acted as the agent of a foreign principal without having filed a registration statement with the Attorney General, in violation of Subchapter II of Chapter 11 of Title 22, United States Code. Nevertheless, an indictment was sought and obtained charging the defendants only with alleged violations of 8 U.S.C. § 1185(b) and “the regulations issued thereunder” and with a conspiracy to violate the same.

THE FACTS

The United States severed diplomatic relations with Castro’s Communist Cuba on January 3, 1961. We became aware of Cuba-Russia missile activities in Cuba in October 1962. Pres.Procl. 3504, October 23, 1962, 3 CFR 232 (1959-1963 Comp.). It may or may not be a mere coincidence that the defendants Laub and Martinot organized the so-called “Ad Hoc Student Committee for Travel to Cuba” at a meeting held in an unspecified place in New York City on October 14, 1962; that the defendant Schlosser became identified with this movement shortly thereafter ; that, during the missile crisis and in December 1962, the name of the Committee was changed to “Permanent Student Committee for Travel to Cuba”; that the Committee attempted to recruit and organize a group of United States citizens to depart for Cuba in December 1962. This plan aborted when Canada refused them permission to depart therefrom by plane for Cuba. By coincidence the trial of the defendants Laub, Martinot and Schlosser occurred during the mass exodus from Cuba of native citizens who abandoned all of their worldly possessions, separated from close relatives and lifelong friends and risked the perils of the sea in small boats in order to escape from the “blessings” of Castro’s Communist Cuba for a new birth of freedom in the United States of America. The mass exodus still continues as this opinion is being written.

The intention of the defendants Laub, Martinot and Schlosser to depart from the United States for the purpose of entering Cuba and to induce others to do likewise was open, notorious, with an awareness of 8 U.S.C. § 1185(b), the regulations of the Secretary of State (hereinafter the Secretary), his regulations, his policy declaration- of January 16, 1961, infra, and the interpretation of § 1185, said regulations and said declaration by the Department of State (hereinafter the Department).

At the meeting of October 14, 1962, those present claimed that there were contradictions in “certain press reports * * * about Cuba”; they expressed their determination to make a trip to Cuba for the alleged purpose of seeing and evaluating the situation and “to attempt to form as objective and as complete an opinion * * * of the Cuban situation” as they could. Five days later, on October 19, 1962, the defendant Schlosser applied in writing to the Department for validation of his passport “for travel to Cuba during the forthcoming Christmas vacation.” Having received no reply, he wrote to the Department on November 16, 1962, stating: “I have received and accepted an invitation from the Cuban Federation of University Students to spend my Christmas holidays in Cuba.” His request was denied by letter dated November 16, 1962:

“Exceptions to the general policy of limiting travel by United States citizens to Cuba are made only in cases of extreme emergency requiring the immediate presence of the applicant in Cuba. It is not considered that your request comes within the criteria.”

Undaunted, Schlosser advised the Department, by letter dated December 5, 1962:

“Nevertheless, I have accepted an invitation issued by the Cuban Federation of University Students, and I intend to make- the trip as originally planned. Therefore, please clarify what is meant by ‘general policy.' On what legal grounds is this policy based? what [sic] will be the legal ramifications of my actually making the trip without United States passport validation?”

Whereupon, the Department advised him that its policy with reference to travel to Cuba had been announced on January 16, 1961; that it was “in conformity with the Department’s normal practice of limiting travel to those countries with which the United States does not maintain diplomatic relations”; that “Travel to Guba by United States citizens without a passport specifically validated by the Department of State, for that purpose, constitutes a violation of the Travel Control Law and Regulations (Title 8 US Code Sec. 1185, Title 22 Code of Federal Regulations Sec. 53.3)” and called his attention to the maximum penalties for “a wilfull violation of the law.”

On November 2, 1962 (three weeks after the meeting of October 14, 1962), the defendant Martinot applied for validation of his passport “for a trip to Cuba over the forthcoming Christmas vacation.” “I am fully cognizant of the present state of relations between the United States and Cuba, but trust that my [sic] the end of December the tension may have subsided sufficiently to permit a more objective view of the situation.” This request was denied by a Department letter similar to and bearing the same date as that to Schlosser.

Nevertheless, the plan to make a trip to Cuba in December 1962 was not yet abandoned. Pursuant to an announcement published in the National Guardian, a meeting of the Committee (still known as the “Ad Hoc Committee for Travel to Cuba”), attended by approximately one hundred persons, was held in an apartment at 885 Riverside Drive, New York, N.Y., on December 15, 1962. There Schlosser read his correspondence with the Department; Laub asserted that, notwithstanding, the December trip would be taken at a cost of only $25 per head (to cover the bus trip from New York City to Canada) and that “the rest of the cost was to be picked up by the Cuban Government.” At a press conference held at the Marteen Hotel in Buffalo, N.Y., on December 23rd, however, Schlosser, speaking for the Ad Hoc Committee, announced that the plans for a trip to Cuba were cancelled temporarily but that the Committee would continue in its efforts to visit Cuba.

Soon thereafter steps were taken to recruit applicants and make arrangements for the trip that eventuated in June 1963 and is the subject matter of this case. A passport issued to Laub on May 24, 1960, had not yet expired. Nevertheless, he applied to the New York Passport Agency of the Department on January 29,1963, for a new passport, stating that he intended to depart for Mexico on February 1, 1963, and to remain there for a period of two to three weeks for “vacation and visit.” Passport No. D014611 was issued to him the same day. Unlike the passports issued to Martinot and Schlosser, it did not provide that it was not valid for travel to Cuba.

In either February or March 1963, Laub departed the United States, via Mexico, for Cuba where he remained for approximately three weeks and returned to the United States via Prague, Czechoslovakia. The purpose of his trip was to make arrangements for a group visit of United States citizens to Cuba during the summer of 1963, under the aegis of the Permanent Student Committee for Travel to Cuba. While in Cuba Laub obtained an agreement on the part of Cuban officials (1) that the passports of the members of the visiting group would not be stamped upon their entry into and departure from Cuba and (2) that the Cuban government would pay all costs of transportation of the group from New York to Cuba and return as well as the costs of their food, lodging and travel while in Cuba.

An active program to recruit persons for and to organize the June trip got under way. Laub, Martinot, Luce and Schlosser, as well as the alleged co-conspirators, Cucchiari and Shallit participated. Meetings, attended by two or more of the defendants were held. Meetings, attended by one or more of the defendants, and by prospective recruits, were held. At a meeting held at the Palonia Club, 201 Second Avenue, New York, N. Y., on April 20, 1963, attended by Laub, Martinot and approximately ten to fifteen other persons, Laub invited those present to make the trip and distributed application forms which included the telephone number of Schlosser, where a representative of the Permanent Committee could be reached. Laub held out the prospect of a trip to Cuba, most of the expenses of which would be paid by a group of Cuban students; assured them that their passports would not be stamped in Cuba; referred to a memorandum of law prepared by the American Civil Liberties Union supporting his opinion that a State Department passport validation was not required for the trip; stated that, if those who made the trip were arrested, the American Civil Liberties Union might defend them; outlined the procedure to be followed by those who desired to make the trip.

On a Saturday during the second week of May, Luce visited Schlosser’s home at 42 St. Marks Place, New York, N. Y. (having previously received an application blank from Laub), where he discussed his application with Schlosser and Martinot.

While the other defendants occupied themselves with the project in New York, Laub travelled to San Francisco, California, to induce people to join the group. On May 2, 1963, he addressed from fifty to sixty students at the Education Building of San Francisco State College, at a meeting sponsored by the “San Francisco State College Student Peace Union” and the “Fair Play to Cuba Committee.” He explained the project of the Permanent Student Committee; stated that he was travelling around the country to advise students of the planned trip and that, in his opinion, the trip was lawful. He distributed application forms; advised those interested to apply for passports and list a European country as the place to be visited; stated that most of the expenses would be paid by the Cuban Federation of University Students and announced a meeting to be held on May 4, 1963, in San Francisco at the apartment of one Robert Kaffke, where completed applications would be received and questions about the trip answered. From twenty-five to thirty-five persons attended this meeting. Laub collected applications and $10 application fees. One such, a check to the order of the Permanent Student Committee, was subsequently endorsed for the Committee by Schlosser.

Laub was back in New York City during the latter part of May and proceeded to reserve air transportation for the group. He was at the Fifth Avenue, New York, office of British Overseas Airways Corporation (hereinafter BOAC) on May 28th and 31st, seeking reservations for a group departure on any available date between June 25th and 29th. On May 31st he also visited the New York office of Royal Dutch Airlines (hereinafter KLM) to arrange for round trip flights to Paris, via Amsterdam, for other members of the group, the date of departure from Kennedy Airport to be some time between June 25th and July 1st. Those who were to take the trip, he said, were friends who, as children, had pledged to meet some day at the Eiffel Tower in Paris. On June 10th he was at the Ottawa, Canada, office of BOAC, where he paid a $5,000 deposit in United States currency for New York to Paris round trip reservations. The following day he returned to that office and paid the balance of $17,739.20 in United States currency. That day he also visited the Ottawa office of KLM where he paid $13,436.-80 in United States currency. A few days later, Laub was back in New York City; visited the KLM office, where he made changes in the number of reservations and received either twenty-two or twenty-three tickets for the group which was to depart from Kennedy Airport on June 25th aboard KLM flight number 606 for Paris via Amsterdam. He was back at the New York City office of BOAC on June 22nd, where he received tickets for a group flight on BOAC flight number 552 departing for London on June 25, 1963, and further transportation of the group to Paris on British European Airways flight number 344. He also picked up a ticket for Martinot on BOAC flight number 558 departing Kennedy Airport for Paris on June 23, 1963. On June 24, 1963, Laub ordered and received his ticket for a Trans-Canada Air Lines flight to Montreal, Canada, departing June 25, 1963. He already had his ticket for a connecting flight on Air France departing the same day front Montreal for Paris.

The alleged co-conspirator, Salvatore Cucchiari, was in the West Coast area to inform selected participants as to how they were to proceed to New York and what they should do upon arrival there. He arranged for free transportation of two of the travellers by automobile from San Francisco to Philadelphia and instructed them to call a specified telephone number upon their arrival in New York City. These two members of the group later learned that they were calling the apartment of the alleged co-conspirator Ellen Shallit. Upon arrival at her apartment on June 23rd, Shallit requested of each of them the $100 fee which Laub had explained at the May 2nd and 4th meetings in San Francisco. Cucchiari turned up at the Shallit apartment that day.

On the following day, Laub telephoned a prospect in Boston to advise that, if he were still interested in making the trip, he should come to New York City that afternoon and telephone Shallit upon arrival. He did so and, pursuant to Shallit’s instructions, went to her apartment. Cucchiari, Shallit and others who were to make the trip were present at the Shallit apartment. Cucchiari gave instructions as to their conduct and movements until departure time the following day. (By this time the activities of the defendants and their “co-conspirators” were no longer open and notorious). In order to avoid any leak of the actual flight arrangements, Cucchiari told those present that they would be travelling to Cuba via Canada.

On June 23rd Laub had met with and instructed those who were to be group leaders. Those who were making the trip were to be separated into small groups, each under the supervision of a leader. Each leader was to keep his group confined to an apartment until their departure for the air terminal. Leaders were not to divulge the actual flight route. Rather, they were to inform their groups that they would travel to Cuba via Canada. No members of the group were to speak to any government official who might approach them. Only group leaders would act as spokesmen. No one was to turn over his passport to any government official under any circumstance.

The morning of June 25th had the aspects of a cloak and dagger operation. Small groups met in various apartments, including those of Martinot, Luce and Shallit. In Martinot’s apartment, Laub gave final instructions to one group. In Shallit’s apartment, final instructions were given to another group by Cucchiari and Shallit. Copies of a press release, prepared in part by Luce and postdated June 26, 1963, were distributed, which restated the alleged objectives of the Permanent Committee and named Laub, Luce, Shallit and Cucchiari as “group representatives.” Cucchiari distributed airline tickets to the members of this group. Luce, as leader of a group gathered in his apartment, gave final instructions and collected $300. Laub appeared at Luce’s apartment that afternoon accompanied by one Fred Jerome, a leader of the Progressive Labor Party, which Luce described as “a Marxist-Leninist self-avowed Communist Party.” Luce delivered the $300 to Laub who left with Jerome.

At about noon of June 25th, the several groups .of fellow travellers left the respective apartments for the East Side Airlines Terminal. At the Terminal Laub distributed the airplane tickets to those who had been held incommunicado in Martinot’s apartment; Fred Jerome delivered to Luce the airline tickets for his group; Cucchiari distributed the airline tickets to those who had been -held incommunicado in Shallit’s apartment. Martinot had departed from Kennedy Airport for Paris two days previously aboard BOAC flight number 558. Laub departed from Kennedy Airport June 25th for Canada (via Trans-Canada Air Lines) and, on the same day, from Canada for Paris (via Air France).. The balance of the group (including Cucchiari, Shallit, Kaffke, Luce and his wife) departed the United States from Kennedy Airport via KLM and BOAC, on June 25, 1963.

The exact date of Martinot’s arrival in Paris is not revealed. But he was in Paris before the group arrived. Laub and the rest of the group arrived at Orly Airport, Paris, on June 26, 1963. After checking in at one or more hotels for an overnight stop in Paris, the entire group met in a private room in a restaurant. There, in the presence of Martinot, Laub announced that the group would proceed to Prague the next morning via Czechoslovakia National Airlines; that each was free to spend the evening as he chose; that no one should do anything provocative, such as excessive drinking, which might entail difficulties with the police; that the group was in no position to appeal to the American Embassy “to bail us out.”

On the morning of June 27, 1963, the entire group checked in at the Czechoslovakia National Airlines counter at Orly. They boarded a specially chartered plane of that airline and arrived at Prague, Czechoslovakia, later that day. Their passports were not stamped upon arrival at or subsequent departure from Czechoslovakia, pursuant to arrangements previously made with Czechoslovakian authorities in Prague by a representative of Cuba. In a waiting room at Prague Airport, a Vice Consul of the United States read to them a prepared statement advising them that “travel to Cuba by a U. S. citizen without a passport specifically validated by the Department of State for that purpose constitutes a violation of U. S. travel control law and regulations. (Title 8 U.S.Code Sec. 1185; Title 22 Code of Federal Regulations, Sec. 53.3)” and that a wilful violation of the law is punishable by fine and/or imprisonment. The group spent two days at a hotel in Carlsbad. They were addressed by two representatives of the Cuban government, one of whom expressed the pleasure of his government over the fact that young Americans had decided to break the travel ban by going to Cuba.

On the morning of June 29, 1963, the group departed from Prague Airport aboard a Cubana Airlines plane which proceeded to Havana, Cuba (via Shannon, Ireland, and Gander, Newfoundland), landing there on June 30, 1963. None of the group displayed his United States passport upon arrival, or upon his subsequent departure from Cuba.

The indictment does not cover the period during which the group was in Cuba. Hence, the activities of the defendants Laub and Martinot and other members of the group were not revealed at the trial. It was stipulated on the record at the trial, however, that the defendants Laub and Martinot departed Cuba August 25, 1963, via Iberian Airlines for Madrid, Spain, with stopovers at Bermuda and the Azores; that they arrived at Madrid on August 26, 1963; that they departed Madrid August 29, 1963, aboard a plane of Iberian Airlines and entered the United States at Kennedy Airport on August 30, 1963.

The committee titles adopted by the defendants who originated the plan to visit Cuba — “Ad Hoc Student Committee” and “Permanent Student Committee” — would suggest as referents a group of curious, inquisitive, open-minded college youth eager to make an objective, on the spot study of conditions in Cuba. The fact is, however, that the defendants Laub, Martinot and Schlosser (as well as Luce) embarked upon this project with a preconceived conviction that the American press was not giving Cuba a “fair shake,” with all that that implies. There was an absence of the yearning to learn by travel “whether or not this blessed spot is blest in every way.”

Luce was not a student at any school or college. He had received a B.A. degree in 1958 at Mississippi State University and an M.A. degree at Ohio State University in 1960. In 1961 he abandoned his pursuit of a Ph.D. degree at Ohio State University and came to New York City where he wrote, as he testified, “for a variety of left-wing publications” for a short time. From the fall of 1961 to September of 1964, he was in the employ of the Emergency Civil Liberties Committee as associate editor of its publication, “Rights.” Laub had been a student at Columbia College in New York City where he was in his senior year in October 1962. It would appear that he abandoned or at least neglected his college career, became an organizer of the Progressive Labor Movement and devoted a considerable period of his time to the organization of a program to defy the State Department’s regulations purporting to restrict travel of United States citizens to Cuba. Robert Kaffke, one who made the trip, was thirty-eight years of age in 1963, hardly in the “student” class. Martinot had been a graduate mathematics student at Columbia University. He and Laub were the organizers of the “Columbia Progressive Labor Student Club.” He testified to that effect and admitted to being a Marxist-Leninist before the House Committee on Un-American Activities in May of 1963, prior to his departure for Cuba.

Of the fifty-eight “students” who made the trip, twenty-five to thirty stood up in Havana, Cuba, when Laub asked all members of the Progressive Labor Group to rise. It would appear that the majority of those who made the trip were committed in advance to the views and objectives of the left-wing Progressive Labor Party. Considering the intensive campaign waged by the defendants, and particularly Laub; Laub’s big-sell at so many of our college and university campuses ; the tempting lure of an all-expense trip to and vacation in Cuba — ■ considering all of this, it is significant that the defendants were able to corral such a small group. From the known composition of a majority of the group, it would appear that few, if any, in the group were typical American students; that the vast majority of the students solicited by the defendants displayed greater resistance to temptation than Adam and Dr. Faustus.

This court does not equate dissent with disloyalty. Nor does it equate loyalty with dissent. It has no doubt that the objective of the defendants was not a genuine search for the truth in Cuba. Nevertheless, the issues in this case are not to be determined on the basis of the political views of the defendants or their sincerity or lack thereof. Their actions may excite popular prejudice and many American citizens may feel that the defendants come within the class which President Lincoln described as those who “stand on the Constitution, whilst they [would] stab it in another place.” “[B]ut if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” Dissent of Mr. Justice Holmes in United States v. Schwimmer, 279 U.S. 644, 654-655, 49 S.Ct. 448, 451, 73 L.Ed. 889 (1929).

THE LAW

The court finds beyond a reasonable doubt that the defendants Laub, Martinot and Schlosser wilfully and knowingly agreed among themselves and with Salvatore Cucchiari and Ellen Irene Shallit to induce, recruit and arrange for a group of American citizens, including the defendants Laub and Martinot, to depart from the United States for the Republic of Cuba; that the defendants Laub, Martinot and Schlosser performed the acts in furtherance thereof hereinabove recited; that the defendants Laub and Martinot wilfully and knowingly departed from the United States for the Republic of Cuba on June 23 and June 25, 1963, respectively; that the defendants Laub and Martinot wilfully and knowingly entered the United States on August 30, 1963, arriving from the Republic of Cuba via Bermuda and Spain.

The questions are whether the said agreement constituted a conspiracy; whether the acts they performed, hereinabove recited, were performed in furtherance of a criminal conspiracy; whether the defendants Laub and Martinot committed substantive crimes when they departed from and entered the United States.

A Case of First Impression

It has already been noted that the defendant Schlosser bore a passport, issued by the Department on June 11, 1962 (see note 6, supra); that the defendant Martinot bore such a passport, dated October 23, 1962 (see note 7, supra); that the defendant Laub was the bearer of such a passport dated January 29, 1963 (supra page 437). The period of the validity of each of these passports being three years, they had not expired when the defendants departed from and returned to the United States. The passports of the defendants Marinot and Schlosser provided in print:

“This Passport Is Not Valid For Travel To Or In Communist Controlled Portions Of China, Korea, Viet-Nam, Or To Or In Albania.”

In addition, the word “Cuba” was stamped beneath the names of the proscribed countries included in print. Beneath the names of all of these countries, including “Cuba,” the- passports of Martinot and Schlosser bore the following stamp:

“A Person Who Travels To Or In The Listed Countries Or Areas May Be Liable For Prosecution Under Section 1185, Title 8, U. S. Code, And Section 1544, Title 18, U, S. Code.”

The passport issued to the defendant Laub, on the other hand, contained no reference to Cuba. Why “Cuba” was not listed on his passport as one of the proscribed areas and the significance, if any, of that omission were not explained or commented upon during the trial or in any trial memoranda. Nevertheless, Laub was aware of the regulations and policy of the Secretary when he applied for his passport and when he departed from and returned to the United States.

The substance of section 1185 first appeared in the Act of May 22, 1918, ch. 81, 40 Stat. 559. It was in effect until 1921 when its provisions relating to citizens of the United States were terminated. Act of March 3, 1921, ch. 136, 41 Stat. 1359. In 1941, the Act of May 22, 1918 was revived by an amendment thereto. Act of June 21, 1941, ch. 210, 55 Stat. 252. The 1918 Act applied only while the United States was at war. The 1941 amendment applied not only while the United States was at war but also during the existence of the national emergency declared by the President on May 27, 1941. Proclamation No. 2487, 3 CFR 234 (1943 Cum. Supp.). These acts prohibited the departure from and entry into the United States by a citizen “unless he bears a valid passport.” This prohibition remained in effect until it was supplanted in 1952 by 8 U.S.C. § 1185. During these periods (1918 to 1921 and 1941 to 1952) the departure and entry provisions were in effect by virtue of requisite proclamations and executive orders of the President. Proclamation No. 1473, August 8, 1918, Laws Applicable to Immigration and Nationality 1046 (1953 ed.); Executive Order No. 2932, August 8, 1918, id. at 1050; Proclamation No. 2523, November 14, 1941, 6 Fed.Reg. 5821. The regulations to implement Executive Order No. 2932 were contained in that order. Those to implement Proclamation No. 2523 were issued by the Secretary. 22 CFR Part 58 (1941 Supp.). These regulations of the Secretary, as modified and renumbered, were incorporated by reference into President Truman’s Proclamation No. 3004, January 17, 1953, infra.

An attorney adviser with the Department who is “Chief of the Security Branch of the Legal Division” testified that he had not, in the course of his duties, read of any case which was prosecuted under the Act of May 22, 1918, supra, or the Act of June 21, 1941, supra, between 1918-1921 and 1941-1952, involving one who departed the United States with an unexpired passport issued by the Department and visited a proscribed area, despite the fact that his passport either was not validated for travel to such an area or recited that it was not valid for such travel. On the trial of this action, the Government conceded that, from 1952 (when section 1185 was enacted) to 1965, approximately 600 American citizens violated the Secretary’s regulations and the restrictions contained in their unexpired passports by travelling to areas proscribed by the Secretary with passports not validated for such travel. Nevertheless, it is conceded that none of those citizens were prosecuted and that this is the first case in which the Government is prosecuting citizens of the United States criminally for a violation of 8 U.S.C. § 1185(b) for having departed the United States with an unexpired passport issued by the Secretary, thereafter entering an area so proscribed and thereafter entering the United States.

There are two reported cases in which citizens, bearing no unexpired passports, have been so prosecuted. In Worthy v. United States, 328 F.2d 386 (5th Cir. 1964), the defendant departed from the United States, entered Cuba and returned therefrom. He was prosecuted under 8 U.S.C. § 1185(b) for entering the United States “without bearing a valid passport”; found guilty and sentenced. Since he did not bear a nonexpired passport issued to him by the Department, the question as to what constitutes a “valid passport” was not presented. On appeal, the court held § 1185 unconstitutional insofar as it subjects to a criminal penalty a citizen who “does not have a passport” and returns to the United States: “[I]t is our conclusion that the Government cannot say to its citizen, standing beyond its border, that his reentry into the land of his allegiance is a criminal offense; and this we conclude is a sound principle whether or not the citizen has a passport, and however wrongful may have been his conduct in effecting his departure.” 328 F.2d at 394. In United States v. Travis, 241 F.Supp. 472 (S.D.Cal.1964), aff’d 353 F.2d 506 (9th Cir., Nov. 19, 1965), petition for cert. filed (Jan. 28, 1966) (No. 963), 86 S.Ct., 1339, 16 L.Ed.2d 357 the defendant departed from the United States on two occasions with the intention of entering Cuba and did so via Mexico. For these two departures she was prosecuted under 8 U.S.C. § 1185(b) and the regulations thereunder, 22 CFR 53.1 through 53.9. It is not clear from a reading of the trial judge’s opinion denying defendant’s motion to dismiss the indictment, 241 F.Supp. 468 (S.D. Cal.1963}, from his opinion finding the defendant guilty, 241 F.Supp. 472 (S.D. Cal.1964) or from the opinion of affirmance, supra, whether the defendant had no unexpired passport or had an unexpired passport not validated for travel to Cuba, i. e., a passport similar to that issued by the Department to the defendants Martinot and Schlosser. The trial judge has advised the court, however, that Helen Travis did not have any unexpired passport when she made the two departures for Cuba.

Unlike Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the question for decision in the instant case is not whether the Secretary had the authority to refuse to validate the passports of the defendants Martinot and Schlosser for travel to Cuba. In Zemel the Supreme Court held that the Secretary had authority to refuse to “validate appellant’s passport for travel to Cuba * * * by the authority granted by Congress in the Passport Act of 1926,” 381 U.S. at 13, 85 S.Ct. at 1279. The Court did not reach the question presented in the instant case, i. e., whether the enactment of 8 U.S.C. § 1185 in 1952 attaches criminal penalties to travel to an area for which one’s passport is not validated. 381 U.S. at 13, 29, 85 S.Ct. at 1279, 1287, n. 4.

The statute and “the regulations thereunder’’

8 U.S.C. § 1185(a) (see note 1, supra) is effective

“When the United States is at war or during the existence of any national emergency proclaimed by the President * * * and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this section be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof * * (Emphasis added.)

The latest presidential proclamation of a national emergency is that by President Truman on December 16, 1950, Proclamation No. 2914, 64 Stat. A454, 3 CFR 99 (1949-1953 Comp.). The continuance of the national emergency, so proclaimed, was recognized by President Eisenhower in 1960 and in 1961 and by President Kennedy in 1962. There has been no presidential proclamation terminating the national emergency so declared. The defendants contend that the 1950 Presidential Proclamation related only to the emergency created by the Korean conflict and that the duration of the emergency so proclaimed must be limited to the duration of that conflict; that “[t]his court is not bound by a decade-old declaration of a national emergency which is inapplicable to the present situation and no longer exists.” The parties to the instant case offered no evidence as to whether the national emergency so proclaimed still exists. The defendants tried this case on the fundamental proposition that, even if a national emergency still existed during the times stated in the indictment, section 1185(b) does not apply to the facts in this case. The court does have a right to consider whether the national emergency has expired by lapse of time. Chastelton Corp. v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841 (1924); contra, United States v. Travis, 241 F.Supp. 468, 471 (S.D.Cal.1963). For the reasons stated in MacEwan v. Rusk, 228 F.Supp. 306, 312-313 (E.D.Pa.1964), aff’d, 344 F.2d 963 (3d Cir. 1965), the court finds that the national emergency so proclaimed has not expired. This contention of the defendants merits no extended treatment, since the court finds that the acts of the defendants do not constitute a crime under § 1185(b), even during the continuance of a national emergency proclaimed by the President pursuant thereto.

President Truman did not make the finding and the public proclamation thereof required by section 1185(a) or impose additional restrictions, pursuant to section 1185(b), upon the departure of citizens of the United States from and their entry into the United States until his Proclamation No. 3004 of January 17, 1953, 67 Stat. C31, 3 CFR 180 (1949-1953 Comp.).

The regulations of the Secretary, incorporated into this presidential proclamation by reference, had been prescribed by the Secretary pursuant to the Act of May 22, 1918, as amended, supra, and were published as 22 CFR 53.1-53.9 (1949 ed.). Only sections 53.1 and 53.2 thereof (renumbered 53.2 and 53.3, respectively, in the 1958 revision of 22 CFR) are pertinent.

Section 1185(b) contains a general prohibition against the departure of a citizen from or entry into the United States unless he bears a valid passport. If it contained no limitation or exception, section 1185(b) would require “a valid passport” for every departure from the United States. But Congress authorized the President to make or to authorize the making of limitations upon and exceptions to this broad general prohibition, President Truman prescribed limitations upon and exceptions to the broad prohibítion of section 1185(b) when, in his Proclamation No. 3004, January 17,1953, he incorporated therein the regulations previously prescribed by the Secretary. The Secretary’s regulations, like section 1185(b), contained and still contain the broad general limitation upon departure from and entry into the United States without a valid passport. 22 CFR 53.2 (1958 rev.). Section 53.3 thereof goes on to place limitations upon and exceptions to the broad general provision of section 53.2. It enumerates the circumstances under which “no valid passport” is required. But it states the exceptions in terms of “traveling between the continental United States” and certain specified places. When these regulations were incorporated into President Truman’s Proclamation of 1953, one could depart and travel between the United States and a number of places including “any country or territory in North, Central or South America or in any island adjacent thereto,” without a valid passport, Under these regulations, at that time, one could, for example, depart for Canada, Mexico or Cuba (an island adjacent to North and Central America) without a passport. For travel between the United States and countries and territories other than those excepted by the regulations, a valid passport was required,

On January 16, 1961, the Secretary of state, by Loy W. Henderson, Deputy Un