
USCA1 Opinion

	




                            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.                                         -2-                                          2                      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.                                         -3-                                          3            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.                                         -4-                                          4            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.                                 _____                                         -5-                                          5            (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                                         -6-                                          6            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."                                         -7-                                          7            "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).                                         -8-                                          8            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                                         -9-                                          9            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.                                           -10-                                          10                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      For   the   foregoing   reasons,  the   defendant's            conviction is affirmed.                                         -11-                                          11
