130 F.3d 523 (2nd Cir. 1997), 1352, United States v. Doyle

Docket Nº:1352, 1353, 1601, Dockets 96-1542, 96-1552, 96-1565.
Citation:130 F.3d 523
Party Name:UNITED STATES of America, Appellee-Cross-Appellant, v. Thomas DOYLE, Defendant-Appellant-Cross-Appellee, Robert Vance, Defendant-Appellant, Umm Al Jawaby Oil Service Company Limited, ISP GmbH, Camarco International, Ltd., Montese Supplies, International General Trade, International Car Supply Material Corporation Limited and International Managemen
Case Date:December 04, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 523

130 F.3d 523 (2nd Cir. 1997)

UNITED STATES of America, Appellee-Cross-Appellant,

v.

Thomas DOYLE, Defendant-Appellant-Cross-Appellee,

Robert Vance, Defendant-Appellant,

Umm Al Jawaby Oil Service Company Limited, ISP GmbH, Camarco

International, Ltd., Montese Supplies, International General

Trade, International Car Supply Material Corporation Limited

and International Management Systems, Inc., Defendants.

Nos. 1352, 1353, 1601, Dockets 96-1542, 96-1552, 96-1565.

United States Court of Appeals, Second Circuit

December 4, 1997

Page 524

[Copyrighted Material Omitted]

Argued April 24, 1997.

Page 525

Andrew B. Bowman, Westport, CT, for Defendant-Appellant-Cross-Appellee Thomas Doyle.

David T. Grudberg, New Haven, CT (Ira B. Grudberg, Jacobs, Grudberg, Belt & Dow, P.C., of counsel), for Defendant-Appellant Robert Vance.

Page 526

Robert M. Appleton, Assistant United States Attorney, Bridgeport, CT (John H. Durham, Acting United States Attorney, of counsel), for Appellee-Cross-Appellant.

Before OAKES and JACOBS, Circuit Judges, and STEIN, District Judge. [*]

OAKES, Senior Circuit Judge:

Thomas Doyle and Robert Vance appeal from judgments of conviction entered on February 6, 1996, in the United States District Court for the District of Connecticut, Alfred V. Covello, Judge, following a seven-day jury trial. Doyle and Vance were convicted on six counts relating to the illegal exportation of technological parts and conspiracy to commit such illegal exportation, as well as the filing of false statements in export documents. The court sentenced appellants on July 31, 1996: Doyle received a sentence of fifteen months' imprisonment, three years' supervised release, and a $5,000 fine; Vance was sentenced to a five-month term of imprisonment, to be followed by a three-year term of supervised release with certain special conditions, including five months' home confinement.

Appellants Doyle and Vance jointly bring four assertions of error. First, they assert that the records generated by the Republic of Malta and admitted by the district court as "foreign public documents" contain inadmissible hearsay, the admission of which deprived them of their Sixth Amendment right to confrontation. Second, they claim that the district court's refusal to admit into evidence the deposition of a co-conspirator, Wolfgang Nothacker, deprived them of their Fifth Amendment right to Due Process and Sixth Amendment right to present a defense. Third, they argue that the court erroneously refused to charge the jury on evidence of habit relating to the defendants' fifteen-year practice of describing their shipments from Connecticut to Germany as "auto spares." Finally, they maintain that the court committed reversible error by instructing the jury that the reasonable doubt standard and the presumption of innocence were rules "designed to protect the innocent and not the guilty."

Doyle also brings two independent assertions of error: first, he claims a deprivation of his Fifth and Sixth Amendment rights by virtue of the court's refusal to permit him to subpoena U.S. Army Intelligence agents for whom Doyle worked during the time of the conspiracy, and its exclusion of trial testimony relating to specific actions Doyle asserts he took against Libya in order to promote U.S. national security; second, he argues that the court effectively refused to charge the jury on his good faith theory of defense.

Although we reject the majority of these arguments, we agree that at least some of the documents submitted to the Maltese government by private shipping companies constituted inadmissible hearsay and were improperly admitted at trial. We also hold that the district court's charge to the jury regarding reasonable doubt and the presumption of innocence was erroneous. We therefore reverse and remand for a new trial.

I

Facts

The following facts are based upon the evidence developed at appellants' trial. Upon retrial, of course, the evidence and verdict may be different. For purposes of the appeal, however, we accept the facts in the light most favorable to the Government, United States v. Wooden, 61 F.3d 3, 5 (2d Cir.1995), and note that appellants do not contest the sufficiency of the evidence.

  1. Background

    In January, 1986, the President of the United States, by Executive Order, prohibited U.S. trade with Libya. Exec. Order No. 12,543, 51 Fed.Reg. 875 (1986). The embargo prohibited the shipment and export of any goods, technology, or services 1 to Libya. Id. at § 1(b). Despite the American embargo, Zueitina Oil Company ("ZOC"), the national oil company of the Republic of Libya, continued

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    to seek U.S.-made oil field spare parts for American technology which had been obtained prior to the embargo. On July 21, 1986, a ZOC officer generated an interoffice memorandum in Libya directing Umm Al Jawaby, its purchasing agent, to obtain Lead Romac/Seiglar gear-type fuel pumps ("LRS pumps") as spare parts for use in the land-based solar turbine engines operating in the Libyan oil fields. The memorandum acknowledged that, because of the American embargo, the fuel pumps were difficult to obtain. The spare parts were, however, necessary because the pumps ZOC was then using were malfunctioning due in part to the type of fuel being utilized. ZOC thus sought pumps which would work on a higher percentage of naphtha fuel. Umm Al Jawaby was instructed to devote its full attention to the procurement of LRS pumps.

    Camarco International Limited ("Camarco") was a company located in the Republic of Malta, whose principal officers were Joe Bonello and Paul Hili. On June 2, 1988, Bonello placed a purchase order on behalf of Camarco for fifty LRS pumps with International Spare Parts GmbH ("ISP"), a West German company located in Koenigstein, Germany, and operated by Wolfgang Nothacker, a German national. The pumps were intended for ZOC, and delivery was intended for Tripoli, Libya.

    Thomas Doyle conducted business operations at 1034 Prospect Road, Cheshire, Connecticut, which included those of five closely-held companies established by Doyle: International Management Systems ("IMS"), International Car Supply Material Corporation ("ICS"), International Spare Parts, Cheshire Aircraft Supply, and Brooksvale Construction Corporation. Doyle and all five of his companies were primarily involved in the export of U.S.-made goods, and conducted all of their export business with ISP. Nothacker, Rainer Martin, and Doyle were the principals of ICS. Like Nothacker, Martin was a German national, worked in Koenigstein, Germany, and was associated with ISP.

    During the time covered by the charges in the indictment, Doyle received almost daily facsimile transmissions from ISP, Nothacker, or Martin. In these facsimiles, Nothacker and Martin requested that Doyle obtain price and availability information for various U.S.-made goods, including automobile spare parts, truck parts, heavy equipment parts, electronics, aircraft parts, and, most critically to this case, oil field equipment.

    In 1986, Doyle hired Richard Bowden as an expert in the automobile spare parts aspect of Doyle's business. When that business closed in 1987, Doyle moved Bowden to the export side of the business, where he worked under Doyle's direction until 1990. In Bowden's trial testimony, given under a grant of immunity, he testified that Martin and Nothacker would fax numerous requests for American goods to Doyle. After receiving the faxes, Bowden and Doyle contacted vendors in the United States to "source" the products--"sourcing" including the obtaining of price and availability information on the products. Once Bowden or Doyle obtained such information, it was relayed back to the Germans by fax. If ISP agreed to the terms of the quotation given by a manufacturer, they faxed Doyle a purchase order, and instructed him to purchase the product.

    Bowden testified that goods procured domestically for ISP were shipped to them every Friday by a freight forwarder, frequently EMO Transportation, Incorporated ("EMO"), which operated at Bradley International Airport in Windsor Locks, Connecticut. At Doyle's instruction, Bowden completed the export documentation which accompanied the shipments, including the shipper's letter of instruction and the Shipper's Export Declaration ("SED"). Between 1987 and 1990, Doyle, significantly, instructed Bowden to describe the oil field equipment shipped to ISP on the documentation as "auto spares." Doyle further instructed Bowden to code with a color stamp those boxes destined for points beyond ISP's plant in Koenigstein, Germany. Doyle also directed that the letter "B" be placed in the export documentation as a suffix to describe those shipments destined for points beyond ISP in Germany. The items actually intended for delivery to ISP were marked with the suffix "A." Despite these coded notations, ISP was always described on the documentation as the ultimate

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    consignee for the shipments. Doyle instructed Bowden to sign the forms filled out in this manner.

    Bowden testified that some of the manufacturers he contacted as a result of a request by ISP were Turbo Power & Marine ("Turbo Power") in West Palm Beach, Florida; Hamilton Standard; Boeing; and McDonnell Douglas. Bowden contacted Turbo Power on numerous occasions. On many occasions that supplier, before it would agree to sell the part, would request the serial number of the piece of equipment for which the part was to be used. On one occasion, Bowden received a fax from ISP which described the desired product's ultimate point of delivery as "Libya." Bowden attempted to procure the part from Turbo Power, which refused to sell the part, or even offer a quote on the item, to Bowden because of this alert. When...

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