Filed: Jan. 06, 1994
Latest Update: Feb. 21, 2020
Summary: (b) Whoever willfully causes an act to be, done which if directly performed by him, or another would be an offense against, the United States, is punishable as a, principal. Additionally, Dodd recharacterizes his second argument as, a challenge to the district court's jury instructions.
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 94-1124
UNITED STATES,
Appellee,
v.
LEON J. DODD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and DiClerico, District Judge.*
Robert Sheketoff with whom Sheketoff & Homan was on brief for
appellant.
Despena Fillios Billings, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
January 6, 1995
*Of the District of New Hampshire, sitting by designation.
STAHL, Circuit Judge. After a four-day jury trial,
STAHL, Circuit Judge.
defendant Leon Dodd was convicted on criminal charges
stemming from the shipment of various Iraqi weapons into the
United States following the end of the Gulf War. On appeal,
Dodd challenges the sufficiency of the evidence and whether
18 U.S.C. 545 actually proscribes the conduct for which he
was convicted. After careful review, we affirm.
I.
I.
Background
Background
Because Dodd challenges the sufficiency of the
evidence supporting his conviction, we recite the facts in
the light most favorable to the verdict. See, e.g., United
States v. Innamorati, 996 F.2d 456, 469 (1st Cir.), cert.
denied, 114 S. Ct. 409 (1993).
On December 5, 1990, Dodd, a First Sergeant in the
U.S. Army Reserves, shipped out to Saudi Arabia in
preparation for Operation Desert Storm. Dodd was initially
assigned to the 173d Medical Group, which was responsible for
managing health care services. After the war ended, Dodd was
assigned additional duties involving the inspection of
equipment scheduled for transport back to the United States.
Specifically, he was trained by the Customs Service, the
Military Police, and the Department of Agriculture to serve
as a designated Customs Inspector.
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In August of 1991, Dodd ordered a shipping
container to be sent to his location in Saudi Arabia. Along
with equipment belonging to his reserve unit, Dodd stored
three Iraqi RPG ground-propelled rocket launchers and two
Iraqi mortar tubes with tripods and plates in the container.
Subsequently, he arranged for the container to be shipped to
his reserve unit's home post at Hanscom Air Force Base in
Bedford, Massachusetts. Dodd did not notify anyone that he
had placed the weapons, all of which were in working
condition, inside the container. Consequently, the U.S.
Army, which was the shipper of record, did not declare the
weapons to U.S. Customs.
Dodd, whose civilian job was a physical security
specialist with the 94th ARCOM1 at Hanscom Air Force Base,
listed himself as the contact person to be notified when the
container arrived in Massachusetts. Because Dodd was on
vacation when the container arrived, another individual
opened it and discovered the weapons. Subsequently, an
officer from Dodd's reserve unit confronted Dodd and queried
whether Dodd had the proper paperwork for the weapons. Dodd
responded affirmatively and then proceeded to create false
documents that purportedly authorized the shipment of the
weapons as war trophies. Prior to the container's arrival,
1. The 94th ARCOM is the Army command for the New England
area.
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Dodd had told this same officer that he (the officer) did not
want to know what equipment was being shipped in the
container.
On December 22, 1992, a grand jury indicted Dodd,
charging him with knowingly facilitating the transportation
or concealment of illegally imported merchandise in violation
of 18 U.S.C. 2 and 545.2 Following a four-day jury
trial, Dodd was convicted. This appeal followed.
II.
II.
Discussion
Discussion
Dodd essentially raises two issues on appeal: (1)
that the government failed to meet its burden in proving that
2. Dodd's indictment specifically tracked the language of
the second prong of the second paragraph of 18 U.S.C. 545,
which provides punishment for, inter alia:
Whoever fraudulently or knowingly . . .
in any manner facilitates the
transportation, concealment, or sale of
such merchandise after importation,
knowing the same to have been imported or
brought into the United States contrary
to law. . . .
18 U.S.C. 2 provides:
(a) Whoever commits an offense against
the United States or aids, abets,
counsels, commands, induces or procures
its commission, is punishable as a
principal.
(b) Whoever willfully causes an act to be
done which if directly performed by him
or another would be an offense against
the United States, is punishable as a
principal.
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the shipment of the Iraqi weapons into the United States was
"contrary to law" and (2) that the relevant language of 18
U.S.C. 545 does not proscribe the conduct for which he was
convicted.3 We discuss each in turn.
A. Sufficiency of the Evidence: Importation Contrary to Law
Dodd contends that the government failed to prove
beyond a reasonable doubt that the Iraqi weapons were
illegally imported into the United States. Dodd does not
dispute that a failure to declare the weapons to U.S. Customs
would constitute a violation of the law, but instead argues
that the evidence was insufficient to support a finding that
the Army did not declare them. We do not agree.
In assessing the sufficiency of the evidence,
"[o]ur task is to review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a
whole and in the light most favorable to the prosecution,
would allow a rational jury to determine beyond a reasonable
doubt that the defendants were guilty as charged." United
States v. Torres-Maldonado, 14 F.3d 95, 100 (quoting United
States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993),
cert. denied, 114 S. Ct. 1550 (1994), modified on other
grounds sub nom., United States v. Piper, 35 F.3d 611, 614-15
3. Additionally, Dodd recharacterizes his second argument as
a challenge to the district court's jury instructions. We
reject this assignment of error for essentially the same
reasons as discussed infra part II.B.
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(1st Cir. 1994)). "In arriving at our determination, we must
credit both direct and circumstantial evidence of guilt, but
must do so without evaluating the relative weight of
different pieces of proof or venturing credibility
judgments." United States v. De Masi, No. 92-2062, slip op.
at 16 (1st Cir. Oct. 26, 1994) (internal quotations omitted).
Furthermore, we do not ask whether the government has
disproven every reasonable hypothesis of innocence so long as
the record as a whole supports a verdict of guilt beyond a
reasonable doubt. E.g., United States v. Vavlitis, 9 F.3d
206, 212 (1st Cir. 1993).
At trial, the government introduced documents that
sequentially traced the shipment of the military container
that held the weapons from its initial delivery to Dodd in
Saudi Arabia to its ultimate arrival at Hanscom Air Force
Base in Massachusetts. Each of these documents referenced
the container by its military identification number. None of
them disclosed that the Iraqi weapons were stored in the
container. Furthermore, one document was stamped with a
certification that declared to U.S. Customs that all of the
items covered by that document were produced or manufactured
in the United States.
The government also introduced a carrier
certificate for the container stamped by U.S. Customs that
did not list the weapons. A customs agent testified that, if
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the presence of the weapons in the container had been known,
customs officials would have noted them on this form.
Clearly, a reasonable jury could plausibly infer from this
evidence that the weapons were not declared and thus were
brought into the United States in contravention of the law.4
B. Statutory Construction
For his second assignment of error, Dodd
principally argues that the relevant portion of 18 U.S.C.
545 proscribes only conduct that occurs after importation.
See supra note 2. He reasons that one could not facilitate
transportation or concealment of "merchandise" while
possessing the requisite knowledge that it had been illegally
imported if that "merchandise" had not yet entered the United
States. Dodd further contends that because the government's
evidence established only that he performed actions in Saudi
Arabia prior to the shipment of the weapons to the United
States, it was insufficient to sustain his conviction.
Though Dodd's argument presents an interesting
question of statutory construction, we need not address it
here. Assuming arguendo that Dodd has correctly construed
the statute, he nevertheless was also indicted under 18
U.S.C. 2. As noted, section 2(b) of this statute provides,
4. We assume without comment that the Army's failure to
declare the weapons to U.S. Customs would constitute
importation or shipment into the United States "contrary to
law."
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"Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the
United States, is punishable as a principal." 18 U.S.C.
2(b) (emphasis added).5 A defendant may be convicted under
this section even though the individual who did in fact
commit the substantive act lacked the necessary criminal
intent. United States v. Tashjian, 660 F.2d 829, 842 n.26
(1st Cir.), cert. denied, 454 U.S. 1102 (1981); accord United
States v. Knoll, 16 F.3d 1313, 1323 (2d Cir. 1994), cert.
denied, 63 U.S.L.W. 3414, 3420 (Nov. 28, 1994); United States
v. Walser, 3 F.3d 380, 388 (11th Cir. 1993); United States
v. Laurins, 857 F.2d 529, 535 (9th Cir. 1988), cert. denied,
492 U.S. 906 (1989). The purpose of section 2(b) is to
remove all doubt that one who "causes the commission of an
indispensable element of the offense by an innocent agent or
instrumentality, is guilty as a principal even though he
intentionally refrained from the direct act constituting the
completed offense." 18 U.S.C. 2 revisor's note. See
United States v. Ruffin, 613 F.2d 408, 414 (2d Cir. 1979);
see also United States v. Harris, 959 F.2d 246, 262 (D.C.
5. Dodd's indictment clearly stated that he was charged
under both 18 U.S.C. 545 and 18 U.S.C. 2. Moreover, as
we have noted before, "an aider and abettor charge [referring
to subsections 2(a) and 2(b)] is implicit in all indictments
for substantive offenses, so it need not be specifically
pleaded for an aiding and abetting conviction to be
returned." United States v. Sabatino, 943 F.2d 94, 99-100
(1st Cir. 1991).
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Cir.) ("Aider and abettor liability may attach to persons who
are legally incapable of committing an object offense."),
cert. denied, 113 S. Ct. 362 (1992). Therefore, regardless
of whether Dodd's conduct in Saudi Arabia was directly
prohibited by 18 U.S.C. 545, it was nonetheless punishable
under 18 U.S.C. 2(b) if it caused actions to occur after
importation that, had Dodd directly performed them, would
have been violations of 18 U.S.C. 545.
As a consequence of Dodd's actions in Saudi Arabia,
the military container arrived in the United States at Port
Elizabeth, New Jersey, and was subsequently shipped via truck
to Hanscom Air Force Base in Bedford, Massachusetts. Hence,
Dodd's deliberate actions in Saudi Arabia caused various
individuals to take actions facilitating the transportation
of the weapons after their importation. Moreover, had Dodd
performed these acts directly, he would have violated 18
U.S.C. 545 because he would have facilitated the
transportation of the weapons knowing that they had been
illegally imported. Therefore, 18 U.S.C. 2(b) proscribed
Dodd's conduct because he caused acts to be performed that,
had they been performed directly by him, would have been
violations of 18 U.S.C. 545. In other words, by acting
through innocent parties who facilitated the transportation
of the weapons from New Jersey to Massachusetts, Dodd did act
after the importation of the weapons knowing them to have
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been illegally imported. In sum, Dodd's actions in Saudi
Arabia were sufficient to support his conviction under 18
U.S.C. 2(b) and 545.
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III.
III.
Conclusion
Conclusion
For the foregoing reasons, the defendant's
conviction is affirmed.
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