United States v. Ronald Dobek , 789 F.3d 698 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3073
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD A. DOBEK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:13-cr-00231-RTR-1 — Rudolph T. Randa, Judge.
____________________
ARGUED APRIL 2, 2015 — DECIDED MAY 19, 2015
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. Ronald Dobek, the defendant and
appellant, was indicted for exporting munitions illegally, in
violation of 22 U.S.C. §§ 2778(b)(2) and (c) and 22 C.F.R.
§§ 121.1, 123.1, and 127.1, and for conspiring to do this in vi-
olation of 18 U.S.C. § 371. Convicted by a jury of all the
counts against him, Dobek was sentenced to 84 months (7
years) in prison. His appeal challenges the admissibility of
an alleged co-conspirator’s emails, the sufficiency of the evi-
2 No. 14-3073
dence to convict him, and the validity of the jury instruction
on willfulness.
Dobek was an engineer employed by a Milwaukee firm
named Derco Aerospace, Inc., which makes parts for mili-
tary airplanes. In 2005 and 2006 he was in charge of provid-
ing parts for F-16 fighter planes owned by the Venezuelan
Air Force. In August 2006, however, the U.S. State Depart-
ment announced that munitions, including parts for military
aircraft, could no longer lawfully be exported to Venezuela
without an export license issued by the State Department,
and it revoked all existing licenses. Dobek’s reaction to this
embargo was to create two engineering firms of his own to
carry on business with the Venezuelan Air Force. A member
of that air force told Dobek that it needed canopy seals for
the air force’s F-16s. (Canopy seals are devices for sealing the
cockpit’s transparent acrylic canopy, which gives the pilot
all-round vision, to the canopy’s frame.)
Suspecting that Dobek was selling canopy seals to the
Venezuelan Air Force, FBI agents obtained and executed a
warrant to search Dobek’s home, where they found a $79,000
purchase order for the seals, though with no purchaser
named. To buy the seals in order to be able to fill the pur-
chase order, Dobek had certified to the seller that he under-
stood that the “products … to be provided are controlled by
the … International Traffic in Arms Regulations (22 CFR
120–130)” and that he would “obtain any licenses or prior
approvals required by the U.S. government.” He told a
friend that he was looking for a box in which to ship “cock-
pit seals” (which is what his Venezuelan Air Force contact
called the canopy seals) to Venezuela. FedEx shipping rec-
No. 14-3073 3
ords revealed that Dobek had indeed shipped a box, labeled
as containing “base molding,” to his contact in Venezuela
shortly after the discussion with his friend. This pattern of
purchase and shipment was repeated a year later; this time
the box shipped to Venezuela was signed by Dobek’s Vene-
zuelan Air Force contact. A month later Dobek received an
electronic funds transfer of $87,500. Copies of letters from
Dobek to Venezuelan military authorities, found in his
apartment, suggest that he was indeed shipping munitions
to the Venezuelan Air Force and, doubtless realizing the ille-
gality of his behavior, urging concealment of, and explaining
ways of concealing, his activity.
The proof that Dobek and the Venezuelan Air Force of-
ficer with whom he dealt had conspired to violate the em-
bargo on the sale of munitions to the Venezuelan military
was overwhelming and made the officer’s emails admissible
as statements of a co-conspirator in the course and further-
ance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). The evi-
dence sketched above was likewise more than sufficient to
allow a reasonable jury to find beyond a reasonable doubt
that Dobek had willfully violated as well as conspired to vio-
late the embargo, in violation of the Arms Export Control
Act, 22 U.S.C. § 2778.
The only ground for the appeal that has any possible
merit involves the jury instruction on willfulness. Both the
government and the defense had proposed wordy instruc-
tions in legalese, wholly unsuitable for a jury; jurors are not
lawyers and jury instructions should steer clear of legal jar-
gon. Not only were the instructions proposed by the oppos-
ing lawyers unsuitable for a jury, but it is unclear what the
4 No. 14-3073
lawyers thought the word “willfully” in the Arms Export
Control Act (it is not defined) means. In the civil context,
“willfulness” usually is synonymous with recklessness,
which is to say a failure to respond (provided a response
would be feasible and effective) to a known serious risk of
harm. See, e.g., Nightingale Home Healthcare, Inc. v. Anodyne
Therapy, LLC, 626 F.3d 958 (7th Cir. 2010); Wassell v. Adams,
865 F.2d 849, 853–54 (7th Cir. 1989). But in criminal law it of-
ten requires also knowing that one is violating the law, Cheek
v. United States, 498 U.S. 192, 201–02 (1991); United States v.
Pulungan, 569 F.3d 326, 329–31 (7th Cir. 2009); United States v.
Muthana, 60 F.3d 1217, 1222 (7th Cir. 1995), and that is the
sense in which the instructions submitted by the lawyers in
this case attempted to define the term.
Ordinarily a person is conclusively presumed to know
the law, which is to say that ignorance of the law that one
has violated is not a defense to conviction for the violation.
But this principle, sensible when a person is bound to know
that what he is doing is wrong, breaks down when a person
who does not know of the law prohibiting what he does has
no reason to think that he’s acting wrongfully. Especially
when the law is a regulation rather than a statute. He may
not be aware of a regulation imposing an embargo on the
export of a product to a particular country when it is a
product that is commonly exported. The United States is the
world’s largest exporter of munitions.
So we interpret “willfully” in 22 U.S.C. § 2778 to require
knowledge by the defendant in this case that he needed a
license to export the munitions that he exported. Cf. United
States v. Pulungan, supra, 569 F.3d at 329. The judge gave the
No. 14-3073 5
government’s proposed instruction on willfulness, which
defined “willfully” as
the voluntary, intentional violation of a known legal
duty. A defendant acts “willfully” if he voluntarily and
intentionally violates a known legal duty. An innocent
mistake or merely negligent act will not constitute will-
fulness. A defendant who is aware of a legal duty not
to export defense articles on the munitions list but who
intentionally exported or attempted to export defense
articles has acted willfully.
The “munitions list” is simply a list of all U.S. “defense arti-
cles.” Because the embargo of sales to Venezuela covered all
defense articles, it was illegal to export any item on the mu-
nitions list to that country without a license from the State
Department.
The instruction should have been shortened to: “the de-
fendant acted willfully if he exported military aircraft parts
to Venezuela knowing that the law forbade exporting those
parts to that country.” The last sentence of the instruction
the judge gave at the government’s urging required the jury,
in order to return a verdict of guilty, only to determine that
Dobek had known that it was illegal to export defense arti-
cles to Venezuela; it did not require the jury to determine
that Dobek knew that the airplane canopies he exported
were classified as defense articles. Read literally, the last sen-
tence of the instruction (“A defendant who is aware of a le-
gal duty not to export defense articles on the munitions list
but who intentionally exported or attempted to export de-
fense articles has acted willfully”) would make Dobek guilty
of a willful violation of the statute even if he didn’t know
6 No. 14-3073
that the articles that he exported to Venezuela were on the
munitions list. One might know there was such a list and
that nothing on it could lawfully be exported, yet not that a
particular item was on the list.
So the government is wrong to argue that its proposed
instruction, which the judge gave, “was an accurate recita-
tion of the law.” But the error was harmless. No reasonable
jury would have acquitted the defendant. The evidence re-
viewed above showed that Dobek exported to Venezuela
items, namely canopy seals for F-16s, that he knew to be em-
bargoed.
The government, with misplaced confidence in the accu-
racy of its instruction, does not argue harmless error. But an
appellate court can invoke the concept on its own initiative
when it is clear that an error committed by the district court
would not have affected the decision of a reasonable jury.
See Neder v. United States, 527 U.S. 1, 19–20 (1999); United
States v. Ford, 683 F.3d 761, 768–69 (7th Cir. 2012); United
States v. Giovannetti, 928 F.2d 225, 226–27 (7th Cir. 1991) (per
curiam). To reverse and remand in such a case would create
needless repetition, for the result of the trial on remand
would be foreordained unless the new jury was unreasona-
ble.
We admit to some misgivings about invoking harmless
error with regard to a jury instruction. For where does one
stop? Suppose a judge forgot to give any jury instructions in
a criminal case, or deliberately decided not to do so because
he thought the case open and shut and that the closing ar-
guments to the jury would be an adequate substitute for in-
structions. The next step would be for a judge to convict the
No. 14-3073 7
defendant without bothering with a trial, on the ground that
the trial could have only one outcome—the conviction of the
defendant. The final step would be to convict him at his ar-
raignment. But these examples merely show that the doc-
trine of harmless error should not be used to obliterate a
criminal defendant’s fundamental rights even if it is clear
that the assertion of those rights will not gain him an acquit-
tal by a reasonable jury. As we said many years ago, “The
Constitution requires (unless the defendant waives his
rights) a certain modicum of adversary procedure even if the
outcome is a foregone conclusion because the evidence of
guilt is overwhelming.” Walberg v. Israel, 766 F.2d 1071, 1074
(7th Cir. 1985).
But the garbling of one instruction, at least in a case as
one-sided as this one—the evidence that the violation was
willful was overwhelming—can we think be excused when
it satisfies the criteria for harmless error. A supportive point
is that the government in its closing argument told the jury
that the defendant had known that what he was doing in ar-
ranging exports of the canopy seals to Venezuela after the
embargo was imposed was illegal. The defendant’s defense
was that he didn’t know that what he was doing was illegal;
so the question of his knowledge was placed squarely before
the jury.
AFFIRMED.
8 No. 14-3073
BAUER, Circuit Judge, concurring. The instruction given by
the district court looks like many of the willfulness instructions
given in this Circuit. This may be due in part to the approach
to willfulness that has been taken over the years by our Pattern
Criminal Jury Instruction Committee—a Committee which, in
the interest of full disclosure, I must confess to chairing since
its inception. More specifically, while the view of the Commit-
tee has evolved on this issue, the views of district courts may
not have.
While our pattern instructions include literally scores of
instructions addressed to specific criminal statutes, we have
not taken that approach with respect to willfulness instruc-
tions. Rather, at least since the 1999 revision of the pattern
criminal instructions, the Committee has declined to provide
a pattern willfulness instruction. Instead, we have recom-
mended that district judges specifically consider the statute
charged in the case in deciding whether to define willfulness
in a separate instruction and, if so, how to do so. See Seventh
Circuit Federal Jury Instructions (Criminal) (West 1999) at
§ 4.09. As we concluded then, ?it is rarely desirable to give a
general definition of ‘willfully.’ If the statute uses the term and
it must be defined, it should be defined in a manner tailoring
it to the details of the particular offense charged.” Id. at 69. But
that discussion was part of a lengthy Committee Comment in
which we also quoted language from a number of cases and
pattern instructions, some of which is similar to what the
district court seems to have started with in this case.
Ten or more years later, as we revised the pattern criminal
instructions, the feeling of the Committee was that the pres-
ence of our extensive comments and citations in 1999 had
No. 14-3073 9
turned out to be somewhat inconsistent with our final point,
which was that willfulness instructions must be ?tailor[ed] to
the details of the particular offense charged.” As a result, the
latest version, while it still offers no pattern instruction,
dispenses with the lengthy comment and citations. The
Committee instead continues to decline to offer ?a general
definition of willfulness because the term is statute-specific.”
See Seventh Circuit Pattern Federal Jury Instructions – Crimi-
nal at § 4.11 (Thompson Reuters 2012). As the instruction given
in this case suggests, though, not everyone has thrown out
their 1999 books. Language used in past cases, perhaps derived
from one or more of the sources cited in our 1999 Committee
Comment, has continued, as it were, to be passed down
through the ages, becoming, in a sense, something of an
unofficial pattern willfulness instruction even though the
Circuit's Committee has tried to encourage customization, and
to discourage pattern-like thinking, where willfulness is
concerned.
This problem seems to me to be reflected in this case, in
which the instruction at issue adopted the familiar—indeed,
the pattern-like—notion that acting willfully involves doing
something known to be forbidden by the law. That concept,
while important, seems to me to be the easy part. As our
Committee has suggested, though, in defining willfulness,
paramount attention must be paid to the statute itself. As the
majority points out here, had that been done in this case, the
precise legal duties addressed in the statute might have been
set forth more completely and more accurately. The majority's
suggested version of the instruction has that virtue, though it
10 No. 14-3073
may, in my view, not adequately account for other aspects of
the issue.
I write separately to encourage district judges not to rely
overmuch on general language that has been used in the past,
but to start with, and focus on, the language of the relevant
statute, and the way that statute defines the applicable legal
duties and knowledge or intent requirements it imposes,
before explaining, in that context, the consequence for the case
of a finding that some aspect of proof of that duty or knowl-
edge is lacking. I encourage my colleagues on the district court
to heed our Committee's view that, while there may be
common notions in every willfulness instruction, there really
can be no ?pattern” instruction on that issue.
Further, under our normal way of preparing jury instruc-
tions in any given case, the burden is on the lawyers to
prepare, tender, and argue for any proposed instruction. The
judge listens to the arguments and selects, modifies, or rewrites
the instructions. So our first admonition to the practicing bar:
make sure the instructions you tender address the views this
court has enunciated.