

                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 &amp;  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
