U.S. v. Shetterly

• Decision Date: 10 August 1992
• Docket Number: No. 91-2313,91-2313
• Citation: 971 F.2d 67
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lynn SHETTERLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 67

971 F.2d 67

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lynn SHETTERLY, Defendant-Appellant.

No. 91-2313.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1992.

Decided Aug. 10, 1992.

Mark D. Stuaan, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, Ind. (argued), for plaintiff-appellee.

Bradley L. Williams, U.S. Atty. (argued), Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for defendant-appellant.

Before FLAUM and KANNE, Circuit Judges, and SHABAZ, District Judge. ^*

KANNE, Circuit Judge.

After a jury trial, Donald Shetterly was convicted of attempting to export a controlled microwave amplifier to (then) West Germany without an export license in violation of § 2410(a) of the Export Administration Act of 1979, 50 U.S.C.App. § 2401, et seq., and was sentenced to 41 months imprisonment. He now appeals his conviction and sentence and we affirm.

In 1987, Mr. Shetterly owned and operated Stoney Creek Limited, Inc., d/b/a Anderson Honda, a motorcycle sales and service dealership in Anderson, Indiana. Mr. Shetterly was introduced to Karl Mann, a West German businessman, by a business partner. From 1987 through 1989, Mr. Shetterly sent electronic equipment, including microwave amplifiers and computer software, to Mr. Mann in West Germany. Mr. Mann had told Mr. Shetterly that he could obtain the equipment less expensively in the United States than in West Germany.

In October 1988, Mr. Mann sent a letter to Mr. Shetterly requesting him to purchase an amplifier from Berkshire Technologies, Inc., of Oakland, California, "model no. BTL-1.6-30 H1," with a 20 degrees Kelvin operating temperature. On October 17, 1988, Mr. Shetterly called Berkshire to inquire about the amplifier and spoke with William Lum, the president of Berkshire. Mr. Shetterly asked about either the model L-1.6-30 HI or the model L-1.6-30 H1. ¹

On November 10, 1988, Mr. Shetterly faxed an order to Berkshire for "one amplifier model number L-1.6-30 HI at a cost of $6,500.00." The amplifier was on the Department of Commerce's commodity control list and therefore a validated license was required for its exportation out of the United States. ² Berkshire, which had previously sold only one HI amplifier, contacted the Department of Commerce and agreed to cooperate in an investigation of Mr. Shetterly.

As part of the investigation, Maureen Barnato, a Berkshire employee, called Mr. Shetterly on November 14, 1988, concerning the order. Ms. Barnato informed Mr. Shetterly that the HI amplifier was a controlled item and therefore an export license was required for its shipment out of the country. Mr. Shetterly told Ms. Barnato that the amplifier would not be exported.

On March 6, 1989, William Hendrickson, an agent of the Office of Export Administration, sent a letter to Mr. Lum which set forth the Department's agreement with Berkshire. The letter stated that Berkshire would send an amplifier to Mr. Shetterly that would function if bench tested but would not work properly if placed within the cryogenic environment of a radio telescope system. In building the amplifier, Mr. Lum used parts with low reliability so that the amplifier would work for a short time. Before shipping the amplifier to Mr. Shetterly, Mr. Lum tested it and found that it operated above specifications. He included the test results with the amplifier, and noted the serial number of the amplifier, 213, on the packing list.

Mr. Shetterly received the amplifier, isolator and a power supply on March 17, 1989. The packing list described the amplifier as a "Microwave amplifier, model L-1.6-30 HI, serial no. 213, including isolator." The amplifier was stamped "model L-1.6-30," and had a serial number of 213. Mr. Shetterly had written to Mr. Mann on February 8, 1989, to inform him that the amplifier ("type BTL 1.6 H-1") would be shipped the following week. Mr. Shetterly's sale price of the amplifier to Mr. Mann was $7,150.00.

I.

Mr. Shetterly argues that the evidence is insufficient to support his conviction. In challenging the sufficiency of the evidence, Mr. Shetterly bears a heavy burden. United States v. Davis, 890 F.2d 1373, 1377 (7th Cir.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1165, 107 L.Ed.2d 1068 (1990). We will uphold the conviction if the evidence, when viewed in the light most favorable to the government, establishes that any rational trier of fact could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Harty, 930 F.2d 1257, 1265 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 262, 116 L.Ed.2d 215 (1991). We will not weigh the evidence or assess the credibility of witnesses. Id. at 1266.

Mr. Shetterly asserts that the government failed to establish that the amplifier shipped to him had a net value in excess of $5,000.00 and therefore required a validated license for its exportation. "Net value" is defined as the larger of the actual selling price of the commodity or its current market price, to the same type of purchaser in the United States. 15 C.F.R. § 771.5. In fact, he submits that the testimony of his expert witnesses established that the amplifier had a net value below $5,000.00. Robert Wedoff testified for the defense about the physical and electronic characteristics of an amplifier having the same specifications as the Berkshire amplifier. Although the district court sustained the government's objection to Mr. Wedoff's testimony regarding the price of a comparable amplifier produced by another manufacturer, he testified that an amplifier would have very little value if it did not work properly. William Root testified for the defense about the value of the isolator (a non-controlled item), and stated that in the absence of an invoice demonstrating the actual price of the isolator, market value could be used to calculate net value. After comparing similar products, Mr. Root valued the isolator shipped to Mr. Shetterly at $1,800.00. Therefore, Mr. Shetterly contends that the value of the amplifier was less than $5,000.00 (modified amplifier less $1,800.00).

However, this evidence merely conflicts with evidence presented by the government. Mr. Shetterly intended to purchase the amplifier at a price of $6,500.00. Any modification of the amplifier would only have affected its market price and is not relevant because the actual selling price was greater than $5,000.00. See 15 C.F.R. § 771.5. Mr. Lum valued the isolator sent to Mr. Shetterly at $500. All questions of credibility and the weight to be afforded conflicting evidence are for the jury to resolve and their conclusions on such matters are accorded substantial deference. United States v. Jones, 808 F.2d 561, 569 (7th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). There was sufficient evidence submitted to show that the net value of the amplifier was greater than $5,000.00. The conflicting testimony concerning the value of the isolator was for the jury to consider; the jury apparently found Mr. Lum's testimony more credible.

Mr. Shetterly contends that even if the net value of the amplifier exceeded $5,000.00, the government failed to prove that he was aware of its value. See 50 U.S.C.App. § 2410(a). Although Mr. Shetterly asserts that at most he knew that the amplifier and isolator together cost $6,500.00, he ordered "one amplifier model number L-1.6-30 HI at a cost of $6,500.00 " (emphasis added) from Berkshire. In addition, Ms. Barnato had warned Mr. Shetterly that the amplifier was a controlled item and that a license was needed for its exportation out of the country.

Finally, Mr. Shetterly argues that the government failed to prove that the amplifier shipped to him was the model L-1.6-30 HI. Although the amplifier itself was marked only "L-1.6-30," the packing list indicated that the model was HI and the serial number on the list, 213, was the same as the number on the amplifier. It is irrelevant that Mr. Shetterly intended to order the model H1, as per Mr. Mann's request, rather than the model HI. The amplifier shipped by Berkshire was the model HI which Mr. Shetterly in fact ordered. The evidence is sufficient to support Mr. Shetterly's conviction.

II.

Mr. Shetterly contends that the district court erred in admitting certain evidence and in excluding his evidence of net value. In reviewing the district court's evidentiary rulings, we are limited to determining whether the district court abused its discretion. United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991); United States v. Whalen, 940 F.2d 1027, 1032 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991). Such an abuse occurs only where no reasonable person could take the view adopted by the district court. United States v. Manos, 848 F.2d 1427, 1429 (7th Cir.1988).

Mr. Shetterly acknowledges that his trial counsel failed to object to the evidence which he contends was improperly admitted. However, he asserts that appellate review of the alleged errors is available because the cumulative effect of the erroneous admission of evidence "was of such great impact that it probably changed the outcome" of the trial, United States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988), and therefore constituted plain error. FED.R.CRIM.PRO. 52(b).

A.

This case arose prior to the break up of the former Soviet Union. In line with cold war attitudes, Mr. Lum testified that he was suspicious that the destination of the amplifier was overseas because he "had become aware ... of significant attempts by the Soviets to obtain the amplifier." Mr. Shetterly argues that the statement was improper because it implied that his goal was to supply technology to the Soviet Union. However, there was evidence that the technology involved was already known to the Soviets; therefore, any error was harmless. FED.R.CRIM.PRO. 52(a).

B.

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