U.S. v Huynh

• Decision Date: 04 May 2001
• Docket Number: 5,0030151
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee v. DIEN DUC HUYNH, Defendant - AppellantIN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee v DIEN DUC HUYNH, Defendant - Appellant

No. 00-30151

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

March 30, 2001

Revised May 4, 2001

Appeal from the United States District Court for the Western District of Louisiana

Before KING, Chief Judge, and HIGGINBOTHAM and DUHE, 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 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 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 is not required for an export to have occurred" was erroneous.⁴ 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. § 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 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, 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 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 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...