United States v. Huynh ( 2001 )

Revised May 4, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30151
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DIEN DUC HUYNH
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
March 30, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellant Dien Duc Huynh was convicted by a jury
on one count of conspiracy to commit theft of government
property, two counts of violating the Trading with the Enemy Act,
one count of conspiracy to violate the Export Administration Act,
seven counts of exporting military equipment in violation of the
Export Administration Act, and two related forfeiture counts.
Dien argues first that the jury instructions on the Trading with
the Enemy Act violations were erroneous. Additionally, Dien
contends that the evidence was insufficient to support the guilty
verdicts on any of the charges. We AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Dien Duc Huynh is the owner of Dien’s Auto Salvage, Inc.,1
located in Lafayette, Louisiana. The issues on appeal arise from
the defendant’s involvement, in 1993 and 1994, in the purchase of
surplus military equipment and its subsequent shipment to
Vietnam. The case is complicated by the fact that although
Vietnam was subject to a trade embargo by the United States in
1993 and part of 1994, that embargo, which supports the basis of
several of the charges against the defendant, was lifted by the
President of the United States on February 3, 1994.
On September 9, 1998, a federal grand jury returned a
fourteen-count indictment against Dien and Dien’s Auto Salvage.
Count One, which charged the defendant with conspiracy to commit
theft of government property in violation of 18 U.S.C. § 371, was
based on Dien’s purchase of surplus military jeeps and his
failure to mutilate certain parts of those jeeps as required by
the sales contract for title to pass to the purchaser. Count Two
1
The indictment also charged another defendant, Son Kim
Nguyen, with Counts Three through Fourteen of the indictment, as
described infra in the text. Son Kim Nguyen pleaded guilty prior
to trial and testified as a witness at trial. Furthermore, for
purposes of this appeal, “Dien” or the “defendant” refers to Dien
and Dien’s Auto Salvage.
2
charged Dien with knowingly and willfully making a false
statement, in violation of 18 U.S.C. § 1001, by certifying that
he was a medical doctor in order to purchase medical equipment.
Counts Three and Four charged the defendant with violating the
Trading with the Enemy Act, specifically with violating 50 U.S.C.
app. §§ 5 and 16, and 31 C.F.R. § 500.201(b)(1), based on the
defendant’s shipments of military vehicles and parts to Vietnam,
an embargoed country, without a validated export license. Count
Six charged the defendant with conspiracy to violate the Export
Administration Act, in violation of 18 U.S.C. § 371, for agreeing
with Son Kim Nguyen (“Son Kim”) and others to ship military
vehicles and parts that required a validated export license to
Vietnam without such license. Counts Seven through Thirteen
charged the defendant with substantive counts of exporting
military equipment in violation of 50 U.S.C. app. § 2410(a) of
the Export Administration Act for seven separate shipments of
military vehicles to Vietnam without a validated export license.2
A jury trial commenced on May 24, 1999. At the close of the
government’s case in chief, Dien filed an oral motion for
judgment of acquittal, which was denied by the court. On May 26,
1999, the jury returned a verdict acquitting Dien on Count Two,
but finding the defendant guilty on Counts One, Three, Four, Six,
and Seven through Thirteen. On May 27, 1999, Dien pleaded guilty
2
Although the embargo was lifted on February 3, 1994, the
licensing requirements for certain products were still in effect.
3
on the two forfeiture counts, reserving the right to appeal his
convictions.3
II. Objection to the Jury Instruction
Dien contends that the jury instructions concerning the
Trading with the Enemy Act violations were erroneous in that they
did not take into account the changes in the law wrought by the
lifting of the embargo against Vietnam. He asserts that 31
C.F.R. § 500.201(c), which prohibits individuals from using third
countries as conduits to export goods to an embargoed country,
ceased to apply when the embargo was lifted. He submits,
therefore, that the shipment of goods from the United States to
the non-embargoed third country could not be a violation of the
Trading with the Enemy Act. He argues that in this rare case,
where the embargo was lifted prior to the arrival of the goods in
the embargoed country, the government was required to prove that
the goods were shipped from the United States to Vietnam with the
specific intent that the goods arrive in Vietnam while the
embargo was still in effect. Specifically, Dien argues that the
portion of the instruction that informed the jury that “proof
that the commodities actually arrived in the country of Vietnam
3
Counts Five and Fourteen were forfeiture provisions,
requiring the defendant to forfeit Dien’s Auto Salvage and all
proceeds resulting from the violations. A jury trial was held on
the forfeiture counts on May 27, 1999; however, the defendant
pleaded guilty before the jury returned its verdict.
4
is not required for an export to have occurred” was erroneous.4
4
The relevant portions of the jury instructions given for
the Trading with the Enemy Act violations are as follows:
Counts II and III [sic] charge the defendants with
exporting military vehicles and vehicle parts to
Vietnam in violation of the Trading with the Enemy Act.
Title 50, United States Code, Appendix 5 and 16 gives
the President of the United States authority to
regulate or prohibit the importing, exporting, or
otherwise dealing with property in which a foreign
company or foreign national has an interest.
For you to find the defendant guilty of this
crime, you must be convinced that the government has
proved each of the following beyond a reasonable doubt:
First, that the defendants exported goods to the
country of Vietnam. Second, that at the time of the
exporting, the United States had an embargo against the
Country of Vietnam under the Trading with the Enemy
Act. Third, that the defendants exported goods without
first obtaining a license from the Department of
Commerce. Fourth, the defendant acted knowingly and
willfully. That is, when he exported the goods to
Vietnam, he was acting voluntarily and purposefully
with a specific intent to do something the law forbids.
That is to say, with bad purpose either to disobey or
disregard the law.
In Counts III and IV of the indictment, the United
States has charged the defendant with exporting
commodities to Vietnam in violation of the Trading with
the Enemy Act. I instruct you that an export includes
a transfer to any person or entity of goods or
technology within the United States with the knowledge
or intent that the goods or technology will be shipped,
transferred, or transmitted to an unauthorized
recipient. Consequently, proof that the commodities
actually arrived in the country of Vietnam is not
required for an export to have occurred.
. . . . I do instruct you that between April of
1975 and February 3rd of 1994 the United States had an
embargo against the country of Vietnam under the
Trading with the Enemy Act. The word knowingly, as
this term has been used from time to time in these
instructions, means that the act was done voluntarily
and intentionally, not because of mistake or accident.
You may find the defendant had knowledge of a fact if
you find that the defendant deliberately closed his
5
We find that the charge was not erroneous in instructing jurors
as to either the act or the mental state required to violate the
Trading with the Enemy Act.
We review challenges to jury instructions for only an abuse
of discretion. Battle v. Memorial Hosp. at Gulfport, 228 F.3d
544, 555 (5th Cir. 2000). The standard of review applied to a
defendant’s claim that the jury instruction was erroneous is
“‘whether the court’s charge, as a whole, is a correct statement
of the law and whether it clearly instructs jurors as to the
principles of the law applicable to the factual issues
confronting them.’” United States v. Wise, 221 F.3d 140, 147
(5th Cir. 2000) (quoting United States v. Sharpe, 193 F.3d 852,
871 (5th Cir. 1999)). “A district court has broad discretion in
framing the instructions to the jury and this Court will not
reverse unless the instructions taken as a whole do not correctly
reflect the issues and law.” United States v. McKinney, 53 F.3d
664, 676 (5th Cir. 1995).
Dien was charged with violating §§ 5 and 16 of the Trading
with the Enemy Act of 1917 (the “TWEA”), 50 U.S.C. app. §§ 1-44
(1990), and its underlying regulations, specifically 31 C.F.R.
eyes to what would otherwise have been obvious to him.
While knowledge on the part of the defendant could not
be established merely be [sic] demonstrating the
defendant was negligent, careless, or foolish,
knowledge could be inferred if the defendant
deliberately blinded himself to the existence of a
fact.
6
§ 500.201. Section 5 of the TWEA authorizes the President, or an
agency he delegates, in specific circumstances,5 to regulate or
prohibit various transactions involving any property in which a
designated foreign country or national of that foreign country
has an interest. See 50 U.S.C. app. § 5(b).6 The President has
5
Currently, the President may use his economic powers
under the TWEA only during times of war, as was the case when the
TWEA was originally enacted. See Act of Oct. 6, 1917, ch. 106,
40 Stat. 411. In 1933, the President’s authority was expanded to
deal with both wartime and peacetime national emergencies. See
Act of Mar. 9, 1933, ch. 1, 48 Stat. 1.
In 1977, the President’s power was again limited to use only
during wartime. See Act of Dec. 28, 1977, Pub. L. 95-223,
§ 101(a), 102, 91 Stat. 1625 (substituting “During the time of
war, the President may . . .” for “During the time of war or
during any other period of national emergency declared by the
President, the President may . . .”). However, the 1977
amendments limiting the President’s use of this authority to
times of war also allowed the President to continue to exercise
any “authorities” that had been executed by the President as a
result of a national emergency prior to the amendment. See id.§ 101(b),(c). Because the embargo against Vietnam predated the
1977 amendments, the President was allowed to, and did, continue
it. See, e.g., Presidential Determination No. 93-38: Extension
of the Exercise of Certain Authorities Under the Trading with the
Enemy Act, 58 Fed. Reg. 51209 (signed on Sept. 13, 1993)
(extending for one additional year the presidential authorities
under the Trading with the Enemy Act).
For a more complete history of the TWEA, see Regan v. Wald,
468 U.S. 222, 225-30 (1984); Miranda v. Secretary of the
Treasury, 766 F.2d 1, 2-5 (1st Cir. 1985).
6
50 U.S.C. app. § 5(b) provides in relevant part:
(1) During the time of war, the President may, through
any agency that he may designate, and under such rules
and regulations as he may prescribe, by means of
instructions, licenses, or otherwise—
. . . .
(B) investigate, regulate, direct and compel, nullify,
void, prevent or prohibit, any acquisition holding,
withholding, use, transfer, withdrawal, transportation,
importation or exportation of, or dealing in, or
7
delegated that authority to the Secretary of the Treasury, who
has in turn delegated it to the Office of Foreign Assets Control
(“OFAC”). See Regan v. Wald, 468 U.S. 222, 226 n.2 (1984).
Furthermore, 50 U.S.C. app. § 16 criminalizes violations of the
TWEA and the regulations issued under it. See 50 U.S.C. app.
§ 16.7
Pursuant to its authority under the TWEA, OFAC promulgated
31 C.F.R. § 500.201, which provides:
(b) All of the following transactions are prohibited,
except as specifically authorized by the Secretary of
the Treasury (or any person, agency, or instrumentality
designated by him) by means of regulations, rulings,
exercising any right, power, or privilege with respect
to, or transactions involving, any property in which
any foreign country or a national thereof has any
interest, by any person, or with respect to any
property, subject to the jurisdiction of the United
States . . . .
50 U.S.C. app. § 5.
7
Section 16 provides in relevant part:
(a) Whoever shall willfully violate any of the
provisions of this Act [sections 1 to 6, 7 to 39 and 41
to 44 of this Appendix] or of any license, rule, or
regulation issued thereunder, and whoever shall
willfully violate, neglect, or refuse to comply with
any order of the President issued in compliance with
the provisions of the Act [said sections] shall, upon
conviction, be fined not more than $1,000,000, or if a
natural person, be fined not more than $100,000, or
imprisoned for not more than ten years or both; and the
officer, director, or agent of any corporation who
knowingly participates in such violation shall, upon
conviction, be fined not more than $100,000 or
imprisoned for not more than ten years or both.
50 U.S.C. app. § 16 (alterations in original).
8
instructions, licenses, or otherwise, if such
transactions involve property in which any designated
foreign country, or any national thereof, has at any
time on or since the effective date of this section had
any interest of any nature whatsoever, direct or indirect:
(1) All dealings in, including, without limitation,
transfers, withdrawals, or exportations of, any
property or evidences of indebtedness or evidences of
ownership of property by any person subject to the
jurisdiction of the United States; and
(2) All transfers outside the United States with regard
to any property or property interest subject to the
jurisdiction of the United States.
(c) Any transaction for the purpose or which has the
effect of evading or avoiding any of the prohibitions
set forth in paragraph (a) or (b) of this section is
hereby prohibited.
31 C.F.R. § 500.201(b) (2000) (emphasis added). Simply stated,
the regulation prohibits specific transactions of property,
including exportation, in which a “designated foreign country” or
national of that country has an interest, unless authorized by
the Secretary of the Treasury. North Vietnam became a
“designated foreign country” on May 5, 1964; South Vietnam became
one on April 30, 1975. Id. § 500.201 schedule (3), (4).
The President lifted the embargo against Vietnam on February
3, 1994. See id. § 500.578; Foreign Assets Control Regulations;
Prospective Lifting of Vietnam Embargo, 59 Fed. Reg. 5696 (Feb.
7, 1994). The lifting of the embargo did not apply
retroactively. See Foreign Assets Control Regulations;
Prospective Lifting of Vietnam Embargo, 59 Fed. Reg. at 5696.
Therefore, while we agree with Dien that upon the lifting of the
embargo, the prohibitions contained in 31 C.F.R. § 500.201(b) and
(c) as pertaining to Vietnam were eliminated, the essential
9
element of that statement is that they were eliminated when the
embargo was lifted and not before. The question remains whether
the jury instructions were erroneous in light of the fact that
Dien’s activities spanned the time period before and after the
embargo was lifted. We find that they were not.
Dien admits that proof that the goods actually arrived in
the embargoed country was not required to prove a violation of
the TWEA prior to the lifting of the embargo, even if the goods
were shipped to the embargoed country using a third country as a
conduit. The Court of Appeals for the Fourth Circuit analyzed a
related question in United States v. Ehsan, 163 F.3d 855 (4th
Cir. 1998). The defendant in Ehsan was indicted for shipping
equipment in violation of a ban on exports to Iran. See id. at
856. He claimed that Executive Order 12959 and its implementing
regulations were ambiguous.8 The regulations enacted by OFAC
8
The Iranian Transactions Regulations were promulgated to
implement Executive Orders 12957 and 12959, which ban most
importation, exportation, and reexportation of goods between the
United States and Iran. See Ehsan, 163 F.3d at 856. The
President issued the Executive Orders under the authority of the
International Emergency Economic Powers Act (“IEEPA”), the
language of which is similar to the language of the TWEA.
Compare 50 U.S.C. app. § 5, with 50 U.S.C. §§ 1701, 1702.
The IEEPA authorizes the President, in the event of a
national emergency, see 50 U.S.C. § 1701, to “investigate,
regulate, direct and compel, nullify, void, prevent or prohibit,
any acquisition, holding, withholding, use, transfer, withdrawal,
transportation, importation or exportation of, or dealing in, or
exercising any right, power, or privilege with respect to, or
transactions involving, any property in which any foreign country
or a national thereof has any interest; by any person or with
respect to any property, subject to the jurisdiction of the
United States.” Id. § 1702(a)(1)(B).
10
prohibited the exportation, reexportation, and transshipment of
goods from the United States to Iran, unless authorized, or any
transaction that evaded or avoided those prohibitions. See id.
at 856-57. In Ehsan, the defendant attempted to ship goods from
the United States to Rome, from Rome to the United Arab Emirates
(“U.A.E.”), and from the U.A.E. to Iran. Id. at 857. He was
arrested when the goods arrived in the U.A.E. The defendant
argued that the “shipment was not an impermissible export to
Iran, but rather a permissible export to the U.A.E. and reexport
to Iran.” Id. at 859. The court disagreed, stating that the
meaning of export was clear and finding support for that
assertion in both the ordinary meaning of the word9 and its
Similarly, the TWEA authorizes the President to
“investigate, regulate, direct and compel, nullify, void, prevent
or prohibit, any acquisition holding, withholding, use, transfer,
withdrawal, transportation, importation or exportation of, or
dealing in, or exercising any right, power, or privilege with
respect to, or transactions involving, any property in which any
foreign country or a national thereof has any interest, by any
person, or with respect to any property, subject to the
jurisdiction of the United States.” 50 U.S.C. app. § 5(b).
9
See Ehsan, 163 F.3d at 858 (citing The Random House
Dictionary of the English Language 682 (2d ed. 1987), defining
“exportation” as “‘the act of exporting; the sending of
commodities out of a country typically in trade,’” and Black’s
Law Dictionary 579 (6th ed. 1990), defining “exporting” as “‘the
act of sending or carrying goods and merchandise from one country
to another’” and as “‘a severance of goods from [the] mass of
things belonging to [the] United States with [the] intention of
uniting them to [the] mass of things belonging to some foreign
country’”) (alterations in original).
11
common-law usage.10 See id. at 858-59. The Fourth Circuit
determined that the meaning of “exportation” “has consistently
meant the shipment of goods to a foreign country with the intent
to join those goods with the commerce of that country.” Id. at
858. By that definition, exportation does not require proof that
the goods actually arrived in the foreign country.
Other cases from our sister circuits support the finding
that “exportation” does not require the actual arrival of the
goods in the foreign country. In United States v. One 1980
Mercedes Benz 500 SE, the Court of Appeals for the Ninth Circuit
held, in interpreting a forfeiture statute, that “[e]xportation
occurred as soon as the machines were delivered to a carrier for
shipment abroad.” 772 F.2d 602, 605 (9th Cir. 1985). The court
found that the goods “entered the export stream at the baggage
check-in at Los Angeles International Airport,” because “an
international airport is the functional equivalent of a border,
and . . . luggage checked at that point of embarkation is at all
times thereafter in international transit.” Id. Similarly, in
United States v. Ajlouny, the Court of Appeals for the Second
Circuit stated that “[a] shipment is sufficiently ‘in foreign
commerce’ for purposes of § 2314 once property bound for a
10
See id. (citing, inter alia, Swan & Finch Co. v. United
States, 190 U.S. 143, 145 (1903), United States v. Chavez, 228
U.S. 525, 530 (1913), and United States v. Hill, 34 F.2d 133, 135
(2d Cir. 1929)).
12
foreign destination arrives in a [U.S.] customs area.”11 629
F.2d 830, 837 (2d Cir. 1980).
We agree that the term exportation does not require that the
merchandise actually arrive in the foreign country. Exportation
occurs when the goods are shipped to another country with the
intent that they will join the commerce of that country, not when
they arrive in that country.12 The regulations that prohibit
exporting goods to Vietnam remained in effect until the moment
11
At the time, 18 U.S.C. § 2314 provided: “‘Whosoever
transports in interstate or foreign commerce any goods, wares,
merchandise, securities or money, . . . knowing the same to have
been stolen . . . , (s)hall be fined not more than $10,000 or
imprisoned not more than ten years or both.’” Ajlouny, 629 F.2d
at 836.
12
We note, from Ehsan, One 1980 Mercedes Benz, and
Ajlouny, that there is some confusion as to when exportation
begins (e.g., when the goods are delivered to the carrier or to
the customs station); however, as between these two options, we
need not determine the precise moment exportation occurs. The
evidence shows that the first carton of goods was shipped out of
the United States and actually arrived in Singapore before the
embargo was lifted. The second carton had an estimated departure
date of January 11, 1994, an estimated arrival date (in
Singapore) of February 8, 1994, and was loaded onto a ship (bound
for Vietnam) in Singapore on February 11, 1994. Because the
voyage from California to Singapore takes approximately one
month, these facts permit the inference that the cartons passed
through a customs area in the United States prior to the lifting
of the embargo on February 3, 1994. Although the jury was
instructed that “an export includes a transfer to any person or
entity of goods or technology within the United States with the
knowledge or intent that the goods or technology will be shipped,
transferred, or transmitted to an unauthorized recipient,” even
if exportation does not occur until the goods arrive at the
customs station, such error is harmless. See Thomas v. Tex.
Dep’t of Criminal Justice, 220 F.3d 389, 395-96 (5th Cir. 2000)
(“[E]ven erroneous jury instructions will not require reversal if
based upon the entire record the challenged instruction could not
have affected the outcome of the case.”).
13
the embargo was lifted. The jury instruction clearly instructed
jurors as to the act required to violate the embargo. Therefore,
the instruction that “proof that the commodities actually arrived
in the country of Vietnam is not required for an export to have
occurred” was not an abuse of discretion.
Dien is, in essence, arguing that the instructions
inadequately defined the correct mental state for a violation of
the TWEA, taking into account the timing of the lifting of the
embargo. Dien argues that because the embargo was lifted, the
government should have been required to prove that the goods were
shipped from the United States with the intent that they arrive
in Vietnam while the embargo was in effect. However, that is not
the mental state required to prove a violation of the TWEA. For
a conviction under the TWEA, “the government must prove that
appellants ‘had knowledge of [the restrictions] and acted with
the specific intent to circumvent those requirements.’” United
States v. Tooker, 957 F.2d 1209, 1213-14 (5th Cir. 1992)
(alteration in original) (quoting United States v. Granda, 565
F.2d 922, 924 (5th Cir. 1978). “Proof that the defendant
negligently failed to investigate the regulations does not
sufficiently prove requisite mens rea.” Id. at 1214. “The
government, however, need not show that appellants had knowledge
of the specific regulations governing transactions with
Vietnamese nationals.” Id. “Rather, the government must prove
only that the defendants knew that their planned conduct was
14
legally prohibited and that they therefore acted with an ‘evil-
meaning mind.’” Id. (quoting Morissette v. United States, 342
U.S. 246, 251 (1952)).
The jury was instructed that it had to find that the goods
were exported to Vietnam without a license while the United
States had an embargo against the country of Vietnam and that the
defendant was acting “voluntarily and purposefully with a
specific intent to do something the law forbids. That is to say,
with bad purpose either to disobey or disregard the law.”
Furthermore, the jury was informed that the United States had an
embargo against Vietnam between April 1975 and February 3, 1994.
Dien was free to argue, and the jury was free to find, that
although the goods were exported during the embargo, they were
not exported with the intent to violate the embargo, but rather
were exported to take advantage of the fact that the embargo was
to be lifted.13
The instructions were not an abuse of discretion.
III. SUFFICIENCY OF THE EVIDENCE CLAIMS
13
Furthermore, although Dien argues that it was common
knowledge that the embargo was about to be lifted, as late as
February 2, 1994, the President stated, regarding the lifting of
the embargo, “I’ve not made a final decision, but we are
reviewing it and will be reviewing it over the next couple of
days.” President’s Remarks in Photo Op with Bipartisan
Leadership 02-02-94, Feb. 2, 1994, available at 1994 WL 27289.
15
Dien also argues that there was insufficient evidence to
support his convictions. “We review the sufficiency of the
evidence by examining all the evidence in the light most
favorable to the verdict.”14 United States v. Guerrero, 234 F.3d
259, 261-62 (5th Cir. 2000). “We will affirm if the evidence is
such that a rational trier of fact could have found the requisite
elements of the offense beyond a reasonable doubt.” Id. at 262.
“‘Direct and circumstantial evidence are given equal weight, and
the evidence need not exclude every reasonable hypothesis of
innocence.’” United States v. Mendoza, 226 F.3d 340, 343 (5th
Cir. 2000) (quoting United States v. Gonzales, 79 F.3d 413, 423
(5th Cir. 1996)).
A. Violations of the Trading with the Enemy Act
The convictions on Counts III and IV arise from the shipment
of two containers of goods from Dien’s Auto Service in Lafayette
to Singapore and their ultimate placement on a boat bound for
Vietnam. The first container (“C-1”) was picked up by the
shipper from Dien’s Auto Service on December 8, 1993, loaded on
board a vessel in Long Beach, California on December 28, 1993,
14
While it is unclear if Dien is challenging the
sufficiency of the evidence or appealing the denial of his motion
of acquittal, the standard of review is the same. See United
States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000) (stating that a
challenge to a motion of acquittal “is in effect a challenge to
the sufficiency of evidence used to convict” and is reviewed de
novo).
16
arrived in Singapore, and was then off-loaded in Singapore on
January 29, 1994 onto a vessel bound for Vietnam. The second
container (“C-2”) was picked up from Dien’s Auto Service on
December 13, 1993, loaded on board a vessel in California on
January 11, 1994, arrived in Singapore, and was then off-loaded
onto a new vessel bound for Vietnam on February 15, 1994.
As discussed in Part II supra, to prove a violation of the
TWEA, “[t]he government must prove that appellants ‘had knowledge
of [the restrictions] and acted with the specific intent to
circumvent those requirements.’” Tooker, 957 F.2d at 1214(second alteration in original) (quoting United States v. Granda,
565 F.2d 922, 924 (5th Cir. 1978)). The government is not
required to establish that Dien had knowledge of the specific
regulations governing his conduct, but “must prove only that the
defendant[] knew that [his] planned conduct was legally
prohibited and that [he] therefore acted with an ‘evil-meaning
mind.’” Id. The government may use both direct and
circumstantial proof, and the “jury may infer willful violation
of a known legal obligation from ‘facts and circumstances
surrounding the case.’” Id. (quoting Liparota v. United States,
471 U.S 419, 434 (1985)).
For each container shipped, the government introduced the
business records maintained by the freight forwarder, J.H. World
Express, Inc. (“J.H. World”), that documented the shipping
history of the container. J.H. World maintained a separate file
17
folder for each shipment that contained all paperwork relevant to
that shipment. The file pertaining to C-1 contained a memorandum
from J.H. World to Dien discussing “shipping out trucks from
Louisiana to Ho Chi Minh”; letters from J.H. World to Hanjin
Shipping (“Hanjin”) arranging for a container to be picked up
from Dien’s Auto Service and delivered to Singapore; a Shipper’s
Export Declaration stating the goods had originated in Lafayette
and ultimately were destined for Singapore; two bills of lading,
one documenting the transfer of the goods from Lafayette to
Singapore and the second indicating an immediate shipment from
the port in Singapore to a vessel bound for Vietnam and delivery
to Binh Chanh Import/Export Corporation (“Binh Chanh”) in Ho Chi
Minh; and an invoice dated December 25, 1993, indicating the
goods were sold to Binh Chanh. The file pertaining to C-2
contained similar documents, including a memorandum from J.H.
World to Hanjin regarding the shipment of the container from
Lafayette to Singapore; a Shipper’s Export Declaration stating
that Singapore was the ultimate destination for the merchandise;
two bills of lading identifying different destinations; and a
commercial invoice dated January 8, 1994, indicating that the
goods had been sold to Binh Chanh.
Dien argues that none of this evidence connects him to the
shipment of the goods to Vietnam because, except for the fact
that the goods were shipped from Dien’s Auto Salvage, all of the
documents were signed by Son Kim and list Golden Seas Im-Export
18
Trading Co. (“Golden Seas”), a company located in California, as
the exporter. He contends that as there is nothing to connect
him to Golden Seas, the evidence does not connect him to the
shipments. However, during a search of the business offices at
Dien’s Auto Salvage, several documents were discovered connecting
Dien to these shipments. For example, there were several
documents, copies of which were found in the J.H. World folders,
which were also found in the business office of Dien’s Auto
Salvage. Additionally, Simon Cheng, a former employee of J.H.
World, testified that although in 1993 he was primarily getting
directions from Son Kim, he also spoke to Dien over the phone and
sent him faxes regarding the shipments. Furthermore, when Son
Kim returned to Vietnam in 1994, Cheng relied on Dien and his
employees for information on similar shipments to Vietnam.
Furthermore, Victor Do, a former employee of Dien, testified that
Dien shipped two containers to Vietnam in 1993, which contained
some of the military vehicles Dien had bought at auction and that
Dien told him that he was shipping the containers to Vietnam by
way of Singapore to avoid the embargo. Finally, Do testified
that Son Kim had told him that Son Kim and Dien were partners in
the venture.
Given our standard of review, we believe this evidence is
sufficient for a rational trier of fact to find the elements of
the offense beyond a reasonable doubt. The documentary evidence
establishes that both containers left Lafayette and were loaded
19
onto a vessel in California prior to the lifting of the embargo.
Furthermore, that same evidence establishes that the goods were
shipped to Singapore and immediately transferred to a vessel
bound for Vietnam. When combined with the fact that the sales
invoices executed prior to the lifting of the embargo indicated
that the goods had been sold to Binh Chanh in Vietnam, a rational
juror could find that Singapore was merely a conduit to disguise
the intended export to Vietnam.
Furthermore, there is no question that Dien was aware of the
restrictions. Dien admitted during cross-examination that he
knew that there was an embargo in place against Vietnam, and Do
testified that Dien told him he was shipping the goods to Vietnam
by way of Singapore because of the embargo. The documents on
file at J.H. World indicate that although the goods had been sold
to Binh Chanh in Vietnam, the shipper’s export declaration listed
the ultimate destination of the goods as Singapore. Similarly
each file contained one bill of lading indicating the goods were
to travel from the United States to Singapore and a second bill
of lading indicating the almost immediate transfer of the goods
from Singapore to a ship bound for Vietnam. A reasonable jury
could interpret this evidence as an attempt to conceal the
ultimate destination of the goods. That kind of concealment has
frequently been considered a relevant factor in establishing that
the acts were committed with an “evil mind.” See Tooker, 957
F.2d at 1214-18; see also United States v. Macko, 994 F.2d 1526,
20
1535 (11th Cir. 1993) (“If the defendants thought they could
legally trade with Cuba by adding a third country to their
shipping and travel routes, they had no reason to conceal . . .
Cuba’s status as the ultimate destination of the machinery and
supplies.”). Therefore, we find there is sufficient evidence for
a reasonable juror to find that Dien had knowledge of the embargo
and acted with the specific intent to violate it.15
B. Conspiracy to Commit Theft of Government Property
Dien’s conviction for conspiracy to commit theft of
government property is based on the allegation that Dien
purchased surplus military vehicles, intentionally failed to
mutilate specific parts of the jeeps as required for title to
pass to the purchaser, and then shipped those jeeps and jeep
parts to his co-conspirator in Vietnam. Dien argues that the
15
Dien argues that rather than showing he possessed the
specific intent to violate the embargo, the evidence suggests he
sent the goods to Singapore, intending to wait for the embargo to
be lifted before sending the goods to Vietnam. Similarly, Dien
contended that he was not responsible for exporting the
containers to Vietnam, but was simply hired by Son Kim to
disassemble the merchandise at Dien’s Auto Salvage. While it is
possible to interpret the evidence in this manner, it is not the
only interpretation. “‘The jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence
presented at trial, and the court must accept all reasonable
inferences and credibility determinations made by the jury.’”
Macko, 994 F.2d at 1532 (quoting United States v. Sellers, 871
F.2d 1019, 1021 (11th Cir. 1989)).
Furthermore, there is simply no evidence, documentary or
otherwise, that Dien made any effort to prevent the merchandise
from arriving in Vietnam until the embargo was lifted.
21
evidence is insufficient to support his conviction on this charge
because the government failed to prove (1) that the types of
jeeps he purchased were of the type that needed to be mutilated
for title to pass, (2) that the parts were not mutilated, and (3)
that there was an illegal agreement to not mutilate the required
parts but to export them to Vietnam.
“To establish a violation of 18 U.S.C. § 371, which forbids
criminal conspiracies, the government must prove beyond a
reasonable doubt (1) that two or more people agreed to pursue an
unlawful objective, (2) that the defendant voluntarily agreed to
join the conspiracy, and (3) that one or more members of the
conspiracy committed an overt act to further the objectives of
the conspiracy.” United States v. Lage, 183 F.3d 374, 382 (5th
Cir. 1999). “[T]he agreement need not be an express or formal
agreement; a tacit understanding is sufficient.” United States
v. Burns, 162 F.3d 840, 849 (5th Cir. 1998). Furthermore, the
government must also “prove ‘at least the same degree of criminal
intent required for the substantive offense itself.’” Lage, 183
F.3d at 382 (quoting United States v. Osunegbu, 822 F.2d 472, 475
(5th Cir. 1987)). The substantive offense at issue is contained
within 18 U.S.C. § 641, which prohibits theft of government
property. To establish a violation, the government must show
that the property belonged to the government and had a value in
excess of $1000, that the defendant stole or converted the
property for his own use or for the use of another, and that he
22
did so knowing the property was not his and with the intent to
deprive the owner of the use or benefit of the property. See 18
U.S.C. § 641; United States v. Aguilar, 967 F.2d 111, 112 (5th
Cir. 1992).
After a review of the record, we believe there is sufficient
evidence to support Dien’s conviction. Dien’s conviction is
based on his purchase of the residue of forty-three military
jeeps. The Defense Reutilization and Marketing Service (“DRMO”)
sells excess military property to the general public by
auction.16 The evidence introduced by the government shows that,
on June 3, 1994, Dien submitted a bid on Dien’s Auto Salvage
letterhead for Item # 72 contained in the “Invitation For Bids” #
31-4397 offering to pay $5425 per unit. On his signed bid, Dien
stated that he agreed to be bound by all of the terms and
conditions of the Invitation For Bids. According to the
Invitation For Bids, Item # 72 offered for sale the residue of
forty-three M151A2 jeeps, which were being sold for parts. The
description clearly stated that the jeeps were being sold for
16
According to testimony, the DRMO works with all branches
of the military to deal with excess military property. It first
attempts to reuse the excess property within the military, but if
it is no longer needed by the military in any way, then the DRMO
will sell the excess property to the general public. When it has
excess military property to sell, the DRMO distributes a catalog
of the property available for sale to the general public. This
catalog is known as an “Invitation For Bids” and, in it, is a
description of the property by item number and the terms and
conditions of the sale. A purchaser who wishes to buy some of
the items listed in the Invitation For Bids submits a bid and, if
his bid is accepted, receives a “Notice of Award.”
23
parts and that the purchaser needed to remove the front and rear
suspension and attaching drive shafts, and that those parts,
along with the body, “must be mutilated.”
Additionally, the Invitation For Bids incorporated by
reference a pamphlet entitled “Sale by Reference, August 1989,”
noting that Special Circumstance Conditions are specified in the
item description. As an employee for the Department of Defense
testified, the description for Item # 72 states that several
articles apply, including Part 09-A. Part 09-A states in
relevant part: “The property requiring . . . mutilation will not
be removed from Government premises and title will not pass to
the Purchaser until . . . mutilation has been completed by the
purchaser and approved by the Contracting Officer or his
authorized representative.” Furthermore, a former employee of
the DRMO testified that she personally spoke to Dien regarding
his purchase of the 43 jeeps and that she remembered her
supervisor had specifically reminded her to make it clear to Dien
that certain parts needed to be destroyed.
Do testified, however, that when Dien sent him and another
employee to Fort Polk in July 1994 to disassemble the jeeps, Dien
specifically told him to remove the “engine and transmission, the
suspension parts, plus any other parts that we can get off the
Jeeps” and to put them in a container to be shipped to Vietnam.
The only part he was told to destroy was the exterior body.
Additionally, Do admitted that, other than the body, no other
24
parts were mutilated. Finally, Do made a contemporaneous list,
which was introduced as evidence, of the parts that were placed
in the containers at Fort Bliss and shipped directly to Vietnam,
and that list included parts that should have been destroyed,
such as front axles, rear axles, and springs.17
Furthermore, several letters exchanged between Dien and Son
Kim discuss the upcoming sale of the forty-three military jeeps
and their potential sale to Phu Yen General Materials Company
(“Phu Yen”) in Vietnam. Although the letters discuss the fact
that the jeeps must be disassembled, there is no mention of the
mutilation requirement. In fact, Son Kim asked Dien to send him
a picture of the jeeps, which would hardly be necessary if the
jeeps were being sold for parts.
In light of the above evidence, a reasonable juror could
have found that Dien purchased the M151A jeeps; that a condition
was attached to the purchase of those jeeps, which required
certain parts to be mutilated prior to the transfer of title; and
that Dien, knowing and agreeing to the requirement, intentionally
instructed his employee to violate it. Furthermore, a reasonable
juror could have found that there was an illegal agreement
17
Dien argues that the government certification that the
parts were mutilated establishes that title passed to the
purchaser. However, Article 09-A clearly states that the
mutilation must be completed and approved for title to pass. Do
testified that he did not mutilate the requisite parts and the
parts were listed as being placed in the containers that were
sent to Vietnam.
25
between Son Kim and Dien to purchase those jeeps as residue, to
intentionally fail to mutilate required parts, and to send the
unmutilated jeeps to Vietnam. We find there is sufficient
evidence to support Dien’s conviction of conspiracy to commit
theft of government property.
C. Violations of the Export Administration Act
Finally, Dien argues that the evidence is insufficient to
support his conviction for conspiracy to export military
equipment in violation of the Export Administration Act of 1979
(“EAA”) and for the seven substantive counts of exporting
military equipment in violation of the EAA.
The EAA authorizes the Secretary of Commerce to prohibit or
curtail the export of any goods or technology subject to the
jurisdiction of the United States to protect the national
security, foreign policy, or short supply interests of the United
States. See 50 U.S.C. app. §§ 2404-2406. Pursuant to that
authority, the Secretary may require an exporter to obtain a
validated export license. See id. § 2403(a). The Secretary is
required to maintain a list (the “Commerce Control List”) stating
the licensing requirements for goods and technology.18 See id.
§ 2403(b). The EAA provides for criminal penalties for one who
18
The Commerce Control List identifies, for example, the
type of license needed, the reason for control (e.g., national
security or foreign policy), the items controlled in a particular
category, and for which countries a license is needed.
26
“knowingly violates or conspires to or attempts to violate any
provision of this Act . . . or any regulation, order, or license
issued thereunder.” 50 U.S.C. app. § 2410(a).19
In order to establish a violation of § 2410(a), “the
government was required to prove beyond a reasonable doubt that
[Dien] knowingly exported or attempted to export a controlled
commodity, without obtaining the appropriate export license in
violation of 15 C.F.R. § 799.1 Supp. 1 (the commodities control
list).” United States v. Shetterly, 971 F.2d 67, 73 (7th Cir.
1992).
Dien was charged with seven substantive counts of violating
§ 2410(a), each count based on a separate shipment of goods from
the United States to Vietnam. The government first introduced
evidence that Dien made several purchases of surplus military
equipment, including 5.5 ton jeeps, by introducing both the
catalogs of the merchandise and the Notices of Award found in the
business office of Dien’s Auto Salvage. Dien admitted to having
purchased forty to fifty military vehicles and was only able to
19
The Export Administration Act also provides more severe
criminal penalties for one who “willfully violates or conspires
to or attempts to violate any provision of this Act . . . or any
regulation, order, or license issued thereunder, with knowledge
that the exports involved will be used for the benefit of, or
that the destination or intended destination of the goods or
technology involved is, any controlled country or any country to
which exports are controlled for foreign policy purposes.” 50
U.S.C. app. § 2410(b).
27
identify one purchaser in the United States.20 Furthermore, Do
testified that in 1993 and 1994, Dien regularly received
shipments of military trucks that he had purchased and sent them
to Vietnam.
A senior licensing officer from the Department of Commerce
testified that the Commerce Control List included military
utility vehicles and that for those vehicles, including the M151
vehicles and parts at issue, a license was required to ship those
types of vehicles to Vietnam. The case agent for the Department
of Commerce testified that, having checked the government
records, no license was ever issued authorizing the export of
these goods. Furthermore, Dien does not contend that he had a
license to ship the merchandise to Vietnam.
Additionally, the government introduced several Invitation
For Bids discovered during the search of Dien’s Auto Salvage,
several of which gave notice to the purchaser that restrictions
applied to the export of the goods. The catalogs covered the
time period following the lifting of the embargo and stated, on
the bid form, the following or similar language: “The bidder
further acknowledges receipt of notification that special United
States restrictions bar unauthorized exports and re-exports of
United States origin commodities directly or indirectly to . . .
Vietnam.”
20
He alleged he sold the remaining vehicles as parts.
28
Furthermore, the documents introduced for each shipment from
their J.H. World folders stated that the goods were traveling to
Vietnam and had descriptions of the merchandise which varied.
Each file contained a Shipper’s Export Declaration that indicated
the goods were traveling from Louisiana to Vietnam. Similarly,
each file contained at least one document, such as a bill of
lading from J.H. World or an invoice from J.H. World, indicating
that the containers contained “5.5 ton trucks” or “army trucks,”
while at the same time containing other documents, such as a
Shipper’s Export Declaration or a shipper’s bill of lading, which
indicated the containers held “truck parts.” Furthermore, Nick
Vuong, who also worked for J.H. World, testified that, in 1993, a
shipment Dien attempted to make to Vietnam got rejected because
the documents sent with the containers indicated they contained
military vehicles or military vehicle parts. After that point,
Vuong testified that Dien instructed him to list the contents of
the containers as “truck parts.”
Dien alleges that he cannot be connected to the shipments
because few of the documents in the files indicate his name or
the name of Dien’s Auto Salvage. In fact, the first five
shipments indicate that they were shipped by “Golden Mountain
Inc.,” a company to which Dien alleges he has no connection.
However, a reasonable jury could find that Dien was actively
involved in the shipment of the merchandise and the activities of
Golden Mountain. Several documents in the J.H. World files
29
indicate that Dien and Dien’s Auto Salvage were involved. For
example, several of the J.H. World files demonstrate that the
J.H. World employees used the names Golden Mountain and Dien’s
Auto Salvage interchangeably and that Dien was connected with
both companies. One file has “Dien’s Auto Salvage” written on
the tab and contained a letter from Dien to Cheng, but identifies
Golden Mountain as the exporter on the shipping documents. By
contrast, another file has “Golden Mountain” written on the tab,
but identifies Dien’s Auto Salvage as the exporter on the
shipping documents. Furthermore, Cheng testified that during
1994, whenever he had to speak to someone about the shipments to
Vietnam, he called Dien or Dien’s secretary. Vuong, who was
responsible for filing out the paperwork on the shipments, also
testified that he contacted Dien to determine how to fill out the
paperwork. Finally, two of the shipments involved the same
containers at issue in the conspiracy to commit theft of
government property counts. Those two containers were filled
with trucks dismantled by Do, an employee of Dien, and those
containers were shipped directly from Fort Polk to Vietnam.
Finally, a contract between Phu Yen, Golden Mountain, and Thien
Tan Trading Company L.T.D. lists Dien as the representative of
Golden Mountain and was signed by him in that capacity.21
21
The contract actually lists Dien Khac Nguyen, not Dien
Duc Nguyen, as the representative of Golden Mountain. However,
as the contract was signed by Dien and a similar contract was
entered into the next day which indicated that a Dien Khac Nguyen
30
We find this evidence sufficient to support Dien’s
convictions on the seven substantive counts of violating the EAA.
A reasonable juror could find that Dien knowingly exported
military vehicles to Vietnam without a validated export license.
In addition to the seven substantive counts, Dien was
charged with conspiracy to violate the EAA. The elements of the
offense of a criminal conspiracy are set out infra in Part III.B.
Dien argues the evidence is insufficient to support his
conviction of conspiring to violating the EAA. In addition to
the evidence stated above, the government introduced several
letters exchanged between Dien and Son Kim from which a
conspiracy could be inferred. In one letter, for example, Dien
asked Son Kim to see if any companies or military units would be
interested in buying the motorized vehicles up for auction.
Another specifically quoted the prices Phu Yen would pay for
truck parts. Finally, many of the letters refer to “our”
business or “our” interests and give instructions or directions
as to how situations should be handled. Additionally, several
bills from Dewey & Sons, a trucking company that transported some
of the merchandise bought at auction to Dien’s Auto Salvage, list
Son Kim’s name on the bill, but indicate that the bill was should
be charged to Dien’s Auto Salvage. Finally, Do testified that
was the representative of Dien’s Auto Salvage, the jury could
reasonably infer that Dien Khac Nguyen referred to Dien Duc
Nguyen.
31
Son Kim told him that Son Kim and Dien were partners in the
business.
This evidence, in addition to the evidence set out in Parts
II and III, is sufficient for a reasonable jury to find Dien
guilty of conspiring to violate the EAA.
IV. CONCLUSION
Based on the reasons stated above, the decision of the
district court is AFFIRMED.
32