U.S. v. Teh

• Citation: 535 F.3d 511
• Decision Date: 31 July 2008
• Docket Number: No. 06-2371.,06-2371.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thian TEH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

535 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Thian TEH, Defendant-Appellant.

No. 06-2371.

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2007.

Decided and Filed: July 31, 2008.

ARGUED: Bradley R. Hall, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Bradley R. Hall, Andrew Densemo, Federal Defender Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

After importing counterfeit DVDs, DVD labels, and DVD packages into the United States, Thian Teh was indicted and found guilty of "fraudulently or knowingly import[ing] ... merchandise contrary to law" in violation of 18 U.S.C. § 545. On appeal, Teh contends that (1) the indictment did not give proper notice of the elements of the charged offense, (2) the section under which he was charged, 18 U.S.C. § 545, cannot be used to charge importation contrary to the copyright laws, and (3) the evidence before the district court was insufficient to prove a violation of § 545. We affirm Teh's conviction.

I.

Following a trip to Malaysia and a stop-over in Nagoya, Japan, Teh arrived at Detroit Metropolitan Airport on September 15, 2004. Teh was referred for secondary inspection because of previous incidents in which counterfeit DVDs mailed to his business addresses had been intercepted by United States customs officers. After examining Teh's luggage, the officers found four Federal Express boxes containing approximately 756 DVDs and 284 DVD sleeve packages, all of which appeared to the officers to be counterfeit. Teh told the officers that the boxes belonged to his friend and that he was supposed to mail the packages to his friend's daughter.

Teh was indicted by a grand jury for violating § 545 which states in relevant part: "Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or ... conceals ... or ... facilitates the transportation ... of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law [s]hall be fined under this title or imprisoned not more than twenty years or both." The indictment read as follows:

On or about September 15, 2004, in the Eastern District of Michigan, Southern Division, the defendant, THIAN TEH, did fraudulently and knowingly import merchandise contrary to law, that is, counterfeit copies of motion pictures in DVD format, in violation of the copyrights on the motion pictures, and did conceal and facilitate the transportation of said merchandise that had been imported contrary to law, then knowing that said merchandise had been imported and brought into the United States contrary to law, all in violation of Title 18, United States Code, Section 545.

Teh did not file any pretrial motions relating to the indictment. He waived his right to trial by jury.

At Teh's bench trial, in addition to evidence of the September 2004 incident, the government presented evidence that, on three previous occasions during 2002 and 2003, customs officers had intercepted packages containing counterfeit DVDs shipped from overseas locations to Teh's business addresses in Oklahoma. The government also introduced the testimony of Peter English, a staff supervisor with the Motion Picture Association of America ("MPAA"), a trade association comprised of the seven major movie studios. English testified that MPAA members have copyright certificates for each film they produce and that they hold these certificates in the MPAA Los Angeles office. English further testified that he inspected a number of the DVD movies and labels recovered from Teh and concluded that the DVDs and their packaging sleeves were "counterfeit" because, inter alia: the International Federation of Phonographic Institute ("IFPI") codes were missing or altered; the artwork was blurry and contained misspellings¹; regional codes — which usually appear on the face or label of the DVD — were missing; and the DVDs were of poor quality. English also opined that the labels accompanying the DVDs were "home made" because they were of poor quality, contained misspellings, were not centered, and "were not professionally done."

In his defense, Teh testified that the Federal Express packages belonged to friends in Malaysia who had asked him to deliver the packages to their children in the United States and that he did not know the contents of the packages.

The government never specified at any point in the proceedings its theory as to how its proof met the "contrary to law" element of § 545, nor did it refer to any statute other than § 545 to which Teh's actions were contrary. During closing arguments, counsel for the government summarized that the government had proven beyond a reasonable doubt that:

Mr. Teh ... fraudulently import[ed] or [brought] counterfeit merchandise into the United States, and that he did it knowingly, in violation of the copyrights of the motion pictures, because ... the companies that represent ... these movie titles, did in fact have copyrights to those movies and Mr. Teh did not.

In finding Teh guilty, the district court listed the elements of the offense which it was required to find beyond a reasonable doubt as: (1) the DVDs were counterfeit; (2) Teh "concealed and transported this merchandise into the United States[;]" and (3) Teh "kn[ew] that he was bringing into the country fraudulent DVDs." After finding that "the government has proved each and every element of the crime charged," the district court concluded that Teh had violated § 545.

In determining that English's testimony was credible, the district court summarized English's conclusion that the DVDs were counterfeit based on their missing IFPI codes, blurry artwork, misspelled words, and poor quality. It further reiterated English's conclusion that the labels were counterfeit because they appeared to be "home made," were of poor quality, included misspellings, and were not centered. Next, the district court recounted the testimony of customs agents who had inspected Teh's luggage at Detroit Metropolitan Airport to support its conclusion that Teh had concealed and transported the DVDs, packaging, and labels into the United States. Finally, the district court found that Teh knew the contents of the merchandise he imported. Specifically, the district court noted the three previous instances in which fraudulent or counterfeit DVDs addressed to Teh were intercepted, inconsistencies in Teh's explanation, and the district court's doubt that Teh could have possibly "take[n] these heavy packages without explanation as to their content."

Following trial, Teh submitted a motion for judgment in favor of the defendant notwithstanding the verdict and a motion for a new trial in the alternative. In the motion, Teh argued, inter alia, that to establish the "contrary to law" element of a § 545 violation, the government was required to establish the elements of criminal copyright infringement — ownership of a copyright and copying — but that the government had not established the ownership of a copyright. The district court orally denied the motion, ruling that English's testimony was sufficient to permit the finding that the MPAA members owned the copyrights. Teh was ultimately sentenced to one year of probation.

II.

Teh's first and second arguments challenge the sufficiency of the indictment. Specifically, Teh argues that the indictment failed to charge an offense because: (1) it did not state an essential element of a § 545 offense and thus did not give him proper notice of the charges; and (2) Teh's alleged offense — which he understood to be a copyright violation-could only be brought pursuant to the Copyright Act and not under § 545.

A.

As an initial matter, the government contends that Teh has waived both arguments on appeal because he did not challenge the indictment prior to trial. Federal Rule of Criminal Procedure 12(b)(3) provides that the following motions must be made before trial:

(A) a motion alleging a defect in instituting the prosecution;

(B) a motion alleging a defect in the indictment or information — but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense.

Fed. R. Crim P. 12(b)(3) (emphasis added).

In his brief Teh describes his first argument as follows: "The indictment did not give Dr. Teh notice as to all elements of the offense charged."² Looking at the substance of the first argument, Teh's precise argument is that the indictment does not state an offense because the combination of the phrase "contrary to law" and the reference to copyright violations is insufficient to charge the "contrary to law" element of the offense. This argument qualifies under Rule 12(b)(3)(B) as a "claim that the indictment ... fails ... to state an offense." See United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999) (defendant's claim that the indictment did not include one of the elements of the crime was not waived even though it was first raised on appeal); United States v. Harrod, 168 F.3d 887, 890 (6th Cir.1999) (same); see also United States v. White, 87 Fed.Appx. 566, 572 (6th Cir.2004) (defendant contended for the first time on appeal that indictment did not charge an element of a § 545 offense and court reviewed for plain error).

Teh's second argument — that his alleged offense cannot be prosecuted under § 545 — also qualifies as a claim that the indictment failed to state an offense. Claims that a statute named in an indictment does not proscribe the alleged conduct are generally treated as claims that the indictment "fails to state an offense." See United...