583 F.2d 190 (5th Cir. 1978), 76-4504, United States v. Davis

Docket Nº:76-4504.
Citation:583 F.2d 190
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sterling Blake DAVIS, Sr., and William McCoy Hill, a/k/a Mike Hill, Defendants-Appellants.
Case Date:November 03, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 190

583 F.2d 190 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Sterling Blake DAVIS, Sr., and William McCoy Hill, a/k/a

Mike Hill, Defendants-Appellants.

No. 76-4504.

United States Court of Appeals, Fifth Circuit

November 3, 1978

Page 191

Joe S. Petsch, Del Rio, Tex. (Court-appointed), for Davis.

Gerald H. Goldstein, San Antonio, Tex., Edward A. Mallett, Houston, Tex., for Hill.

Sterling Blake Davis, Sr., pro se.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM, GODBOLD and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

This case arises from an international raid of some notoriety in which Sterling Davis, Sr.'s son and other American prisoners were freed from a Mexican jail by armed persons who crossed into Mexico from the United States. Both Sterling Davis, Sr. ("Davis") and William Hill were convicted of conspiracy to Export a weapon on the Munitions List without an export license or written approval from the State Department, in violation of 22 U.S.C. § 1934(c) and

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18 U.S.C. § 371, the general conspiracy statute. As it read at the time of the indictment, 1 § 1934 provided for control of export and import of arms. Subsection (a) authorized the President to designate articles that shall be considered arms for the purposes of § 1934, and articles so designated are known as the Munitions List, which appears at 22 C.F.R. § 121.01. The weapon involved in the conspiracy to export count was a sawed-off shotgun which the government asserted fell under the Munitions List designation of a shotgun with a barrel less than 18 inches in length.

Hill was also convicted of the substantive offense of unlawfully Importing a firearm in violation of 18 U.S.C. § 922(L ), which makes it unlawful for any person knowingly to import into the United States any firearm or ammunition. The firearm involved in this count was an unaltered shotgun. We are not faced with the question whether the activities of Davis and Hill constituted other offenses against the United States.

We reverse the convictions.

I. The Facts.

Davis's son was imprisoned on a narcotics charge in the jail at Piedras Negras, Mexico, just across the border from Eagle Pass, Texas. Davis offered $5,000 to Fred Graves to free his son. Graves declined the offer but suggested to Donald Fielden that he consider the offer. When Fielden contacted Davis, Davis repeated the offer and the two discussed logistics, including the use of a shotgun. Fielden investigated Piedras Negras and its jail and visited with Davis's son, then contacted Davis and again discussed logistics. Fielden informed Davis that he would need assistance and once again mentioned the use of a shotgun. Fielden obtained the assistance of Hill, whom Graves had suggested might help.

Fielden and Hill went to Eagle Pass, and Fielden talked with Davis by telephone. Fielden and Hill crossed into Mexico to attempt the jailbreak but aborted their plans and returned to the United States. On this trip they carried in the car an unaltered shotgun belonging to Hill and a sawed-off shotgun.

Hill recruited Billy Jack Blackwell as a lookout. The three Hill, Fielden and Blackwell went to Eagle Pass, where Fielden had another telephone conversation with Davis. Blackwell walked across the border and reported his observations of the jail over a walkie-talkie. Fielden and Hill crossed the border with the two shotguns. At the jail the three forced the guards to surrender, taking an M-1 carbine from one guard, then freed Davis's son along with other American prisoners. The record does not show that anyone was injured during the jailbreak. As the three actors returned across the border with Davis's son, the M-1 and the sawed-off shotgun were thrown into the Rio Grande. The unaltered shotgun remained in the car's trunk. When stopped at U.S. Customs, Hill, the owner of the shotgun, did not declare that he was bringing it into the country. Once they were in Eagle Pass, Davis was called by telephone. Davis's son was brought to Dallas and Davis paid Fielden $5,000.

II. Specific intent under the conspiracy to export count.

The convictions of both appellants under the conspiracy to export count must be reversed because the court erroneously instructed the jury with respect to intent.

  1. Degree of intent required.

    To sustain a conviction on a charge of conspiracy to commit an offense against the United States the government must prove at least the degree of criminal intent necessary for the substantive offense, Ingram v. U. S.,360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503, 1508 (1959); See U. S. v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1264, 43 L.Ed.2d 541, 554

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    (1975), in this case the substantive offense of exporting a weapon on the Munitions List. Section 1934(c) provides:

    Any person who Willfully violates any provision of this section or rule or regulation issued under this section . . . shall upon conviction be fined not more than $25,000 or imprisoned not more than two years, or both.

    22 U.S.C. § 1934(c) (emphasis added). In Etheridge v. U.S. 380 F.2d 804 (CA5, 1967), we sustained convictions under an indictment charging that the defendants "knowingly, wilfully, and unlawfully" exported articles on the Munitions List without having obtained an export license or written approval from the State Department. We said that the count set forth all of the elements of the offense. In reviewing the sufficiency of the evidence, however, we stressed, "Evidence of facts and circumstances introduced at the trial afforded adequate support for a finding by the jury that each of the defendants Knew it was unlawful to export (an article on the Munitions List)." 380 F.2d at 807 (emphasis added). Thus Etheridge suggests that specific intent is required, even though the opinion did not squarely address the question of degree of intent. In U. S. v. Lizarraga-Lizarraga, 541 F.2d 826 (CA9, 1976), the Ninth Circuit held that § 1934's requirement of wilfulness connotes a voluntary, intentional violation of a known legal duty. Because the items covered by the statute are spelled out in administrative regulations and include items not known generally to be controlled by the government, the Ninth Circuit inferred that Congress did not intend to impose criminal penalties on innocent or negligent errors. We are persuaded by this analysis and agree that § 1934 requires specific intent. 2

  2. The district court's construction.

    The district court correctly instructed the jury:

    The word willfully as used in this charge means that the act or omission or failure to act was committed by the Defendant knowingly, voluntarily and intentionally, and with knowledge that it was prohibited by law, and with the purpose to disobey or to disregard the law, and not by mistake, accident or in good faith or other innocent reason or motive.

    The court, however, then went on to say:

    An act is done knowingly if it is done willfully and intentionally, if done voluntarily and intentionally, and not because of mistake, accident or other innocent reason or motive.

    Just before the court gave the above-quoted instructions on wilfulness, the court had said:

    Unless outweighed by evidence to the contrary, the law presumes that every person knows what the law forbids and what the law requires to be done. Therefore, the evidence that the Defendant acted or failed to act because of ignorance of the law does not constitute a defense.

    These two instructions are inconsistent with the element of specific intent, which requires the government to prove that the defendant voluntarily and intentionally violated a known legal duty.

    In a series of recent decisions this circuit has dealt with the problem of instructions on ignorance of the law in specific intent crimes. U. S. v. Schilleci, 545 F.2d 519 (CA5, 1977); U. S. v. Granda, 565 F.2d 922 (CA5, 1978); U. S. v. Schnaiderman, 568 F.2d 1208 (CA5, 1978); U. S. v. Wellendorf, 5 Cir., 574 F.2d 1289 (1978); See U. S. v. Petersen, 513 F.2d 1133 (CA9, 1975) (relied

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    on in Schilleci ). Considered together, these cases require that the trial court, when instructing that specific intent is required, may not instruct that ignorance of the law is no excuse, because ignorance of the law goes to the heart of the defendant's denial of specific intent. Schilleci, 545 F.2d at 524.

    Our cases are not one hundred percent consistent. Schilleci dealt with a conspiracy-to-wiretap charge. The trial court properly instructed the jury on specific intent but also instructed:

    It is not necessary for the prosecution to prove that the defendant knew that a particular act or failure to act is a violation of law. The presumption is that every person knows what the law forbids, and what the law requires to be done.

    The defendant had requested a charge indicating that evidence of ignorance of the law is relevant to whether or not the defendant acted with specific intent. 3 We held that the trial court's instructions were erroneous. As a result of the instructions, "the jury never had the opportunity to consider the effect of lack of knowledge on the requisite specific intent." 545 F.2d at 524.

    Granda dealt with a charge that defendant failed to report that she was transporting into the country over $5,000, an offense we held to require specific intent. The trial court did not instruct the jury at all on specific intent. We said, "(T)he proper instruction would include some discussion of the defendant's ignorance of the law since the defendant's alleged ignorance of the reporting requirement goes to the heart...

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