                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2008

USA v. Electro Glass Prod
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3191




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                                                           NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 _______________

                                   No. 07-3191
                                 _______________

                        UNITED STATES OF AMERICA

                                        v.

                         ELECTRO GLASS PRODUCTS,

                                        Appellant.

                                 _______________

                 On Appeal From the United States District Court
                     for the Western District of Pennsylvania
                            (Criminal No. 06-cr-00117)
                 District Judge: Honorable Donetta W. Ambrose

                             Argued September 29, 2008

         Before: FISHER, CHAGARES, and HARDIMAN Circuit Judges.

                             (Filed: October 16, 2008)


David M. Laigaie (Argued)
Mariana Rossman
DIL WORTH PAXSON, LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, PA 19103

     Counsel for Appellant
Mary Beth Buchanan
Robert L. Eberhardt (Argued)
700 Grant Street, Suite 400
Pittsburgh, PA 15219

       Counsel for Appellee
                                   __________________

                               OPINION OF THE COURT
                                 __________________

CHAGARES, Circuit Judge.

       Electro-Glass Products (“Electro-Glass”) appeals its conviction for violating the

Arms Export Control Act (“AECA”), arguing that the Government presented insufficient

evidence to prove beyond a reasonable doubt that Electro-Glass acted willfully. Because

the jury verdict is supported by sufficient evidence, we will affirm.

                                              I.

       We write solely for the benefit of the parties, who are familiar with the factual

context and legal history of this case. Therefore, we will set forth only those facts

necessary to our analysis.

       Electro-Glass manufactures “glass preforms,” including “solder glass preforms.”

Solder glass preforms are used, inter alia, by manufacturers of night vision equipment.

The AECA requires manufacturers to obtain licenses before exporting military products

that are on the United States Munitions List (“Munitions List”).

       In October 1993, a United States customs agent visited Electro-Glass to inquire

about an order Electro-Glass received from a Dutch entity called B.V. Delft. Pursuant to

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the agent’s instructions, Electro-Glass sought a commodity jurisdiction determination

from the Department of State (“DOS”) regarding whether a license was necessary to

export the preforms. The customs agent also made a presentation to Electro-Glass during

this time period to educate the company’s representatives about the AECA licensing

requirements. In January 1994, DOS issued a commodity jurisdiction determination that

the specific preform B.V. Delft ordered was on the Munitions List, and therefore Electro-

Glass could not ship it without a license. Electro-Glass chose not to ship to B.V. Delft.

       Eight years later, in June 2002, Electro-Glass received an order for solder glass

preforms from an Indian company called B.E. Delft1 . Electro-Glass was aware that these

preforms were originally developed for military application in night vision devices.

Electro-Glass also acknowledged that it was uncomfortable with continued dealings with

B.E. Delft and that it recognized the similarity in this entity’s name to B.V. Delft.

       Electro-Glass sought guidance from several government agencies regarding its

ability to ship to B.E. Delft. Electro-Glass contacted the Federal Bureau of Investigation

and Congressman John Murtha, who referred Electro-Glass’s inquiry to United States

Customs. Although none of these governmental agencies told Electro-Glass not to make

shipments to B.E. Delft, Electro-Glass never received actual authorization for the

shipments. Moreover, a United States customs agent told Electro-Glass that he would




       1
        On January 22, 2004, B.E. Delft began to operate as Bel-Optronic Devices Ltd.
For consistency, we refer to this entity as B.E. Delft throughout the opinion.

                                              3
have to make inquiries with three federal agencies, including DOS, to determine whether

Electro-Glass could legally export the preforms. Without waiting for definitive

authorization from the government, Electro-Glass made four shipments to B.E. Delft

without obtaining a license.

       On December 6, 2004, two United States customs agents visited Electro-Glass and

told the company that it would need a license to ship preforms to B.E. Delft. Only then

did Electro-Glass stop making shipments. On April 5, 2006, a grand jury indicted

Electro-Glass on four counts of violating the AECA, one for each shipment that Electro-

Glass made to B.E. Delft. After a four-day trial, a jury found Electro-Glass guilty on all

four counts. Electro-Glass filed a timely appeal.

                                            II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

Because Electro-Glass is appealing from a final judgment of conviction, we have

jurisdiction pursuant to 28 U.S.C. § 1291. See Flanagan v. United States, 465 U.S. 259,

263 (1984); Catlin v. United States, 324 U.S. 229, 233 (1945).

       Defendant bears a heavy burden on appeal. When considering the sufficiency of

the evidence to uphold a criminal conviction, we must view the evidence in the light most

favorable to the Government. See Glasser v. United States, 315 U.S. 60, 80 (1942); see

also United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (noting that this Court

applies a “particularly deferential standard of review when deciding whether a jury



                                             4
verdict rests on legally sufficient evidence”). Seen in that light, we affirm if “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he evidence need not

unequivocally point to the defendant’s guilt as long as it permits a finding of guilt beyond

a reasonable doubt.” United States v. Davis, 183 F.3d 231, 238 (3d Cir. 1999); see also

United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1990) (“Only when the record

contains no evidence, regardless of how it is weighed, from which the jury could find

guilt beyond a reasonable doubt, may an appellate court overturn the verdict.” (quoting

Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir. 1970))).

                                             III.

       To establish a violation of the AECA, 22 U.S.C. § 2778(c), the government must

prove beyond a reasonable doubt that: (1) the defendant exported an article from the

United States, (2) that article is listed on the Munitions List, (3) the defendant exported

the article without a license, and (4) the defendant did so willfully. See United States v.

Tsai, 954 F.2d 155, 160 n.3 (3d Cir. 1992). We have noted that the “willfulness”

element of the AECA is established only “[i]f the defendant knew that the export was in

violation of the law.” Id. at 162. The Government does not need to prove the basis of

that knowledge, or that the defendant was aware of the licensing requirement. Id.

       Electro-Glass asserts that the Government failed to prove the “willfulness” element

of the offense. To differentiate its case from those where AECA violations have been



                                              5
established, Electro-Glass points to cases involving defendants who either admit knowing

that their conduct was illegal or who act in a manner that demonstrates such knowledge

by misrepresenting information to the Government. Electro-Glass also argues that most

AECA cases involve shipments of military items to war-torn or hostile countries. See,

e.g., Tsai, 954 F.2d at 158-59 (affirming a guilty verdict where the defendant falsified

documents to smuggle items through Customs, had been informed that a license was

required to export his product, and told an undercover agent to “act dumb” about the

licensing requirement).

       Pointing to more extreme AECA violations, however, does not automatically

imply that Electro-Glass’s conduct did not rise to the level of willfulness, and it certainly

does not allow Electro-Glass to meet its heavy burden on appeal. The fact remains that

Electro-Glass had a four-day jury trial, during which it had a full and fair opportunity to

present a defense to the Government’s charges. After weighing the evidence and

evaluating the credibility of witnesses, the jury determined that the Government proved,

beyond a reasonable doubt, that Electro-Glass violated the AECA willfully. In reviewing

the jury verdict, we exercise great deference and affirm if any rational trier of fact could

have found willfulness beyond a reasonable doubt. The fact that the record contains

evidence which could have supported a contrary conclusion does not warrant reversal as

long as there is sufficient evidence in the record to support the verdict. Here, we

conclude that there is.



                                              6
       Considering the evidence in the light most favorable to the Government, with all of

the credibility inferences viewed in favor of the Government, we find that a rational trier

of fact could infer that Electro-Glass knew about the AECA licensing requirements dating

back to the 1993-1994 time period and, therefore, that the company knew that at least

some of its solder glass preforms were military products that could not be shipped without

a license at the time Electro-Glass made shipments to B.E. Delft. Specifically, a rational

trier of fact could have concluded that: (1) a United States customs agent made a

presentation to Electro-Glass representatives in 1993 about the AECA licensing

requirements; (2) this presentation and the 1994 DOS commodity jurisdiction

determination put Electro-Glass on notice that certain military products cannot be

exported without a license; (3) Electro-Glass knew that the preform at issue in this case

was “originally developed for military application,” (Appendix 00753), and was therefore

subject to DOS licensing; and (4) when Electro-Glass made the four shipments to B.E.

Delft without obtaining a license or even requesting a commodity jurisdiction

determination, it knew that doing so was illegal. Thus, a rational trier of fact could have

found, beyond a reasonable doubt, that Electro-Glass violated the AECA willfully.

                                                 IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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