When Doli Pulungan attempted to export 100 military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law. He was just wrong about which law. His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005. Instead, Pulungan violated a different law that requires a license in order to export “defense articles.” Thus, his elaborate ruse of shipping through Saudi Arabia in order to evade the nonexistent Indonesia embargo did him no good. A jury ultimately convicted him of “willfully” attempting to violate the export license law, and a judge sentenced him to four years’ imprisonment.
But was his violation truly “willful”? On appeal, the government conceded that “willfully” means “with knowledge that a license is required,” but argued that the evidence established Pulungan had this knowledge. The government relied chiefly on Pulungan’s dishonesty with business associates about what he intended to do with the riflescopes and his intent to violate the nonexistent embargo. But Pulungan’s dishonesty is readily explained by his belief that he was violating the wrong law. Thus, as the Seventh Circuit saw it in United States v. Pulungan (No. 08-3000), the government was really invoking the doctrine of transferred intent: “As the prosecutor sees things, an intent to violate one law is as good as the intent to violate any other.” The court, per Chief Judge Easterbrook, was unmoved by this use of the transferred intent doctrine and overturned Pulungan’s conviction.
Those who have taken first-year Criminal Law will recognize the transferred intent doctrine from their study of homicide. The Seventh Circuit used this illustration: “If you set out to kill A by poisoning his whiskey, and B drinks from the glass first and dies, you are guilty of B’s premeditated murder: The intent to kill A is ‘transferred’ to B’s death.” But this transfer occurs within a single type of offense: both the crime intended and the crime charged are murder. The Seventh Circuit observed, “So far as we can tell, however, transferring intent from one genus of offense to another has never been permitted.”
Although casting doubt on the government’s attempt to expand the transferred intent doctrine, the Seventh Circuit did not ultimately have to reject it. Since the government was obligated to show not only an intent to break the law, but also knowledge of the law’s coverage, the transfer of intent to violate the embargo would not in and of itself satisfy the government’s burden. The only evidence the government had of knowledge that the riflescopes were regulated as “defense articles” was that Pulungan’s supplier stated on its website, “We cannot export this item outside the U.S.” But, the Seventh Circuit noted, there might have been other reasons why the supplier had a restricted territory besides defense export laws; for instance, the manufacturer might have contractually limited the rights of different wholesalers to sell within particular territories. The court thus concluded that no reasonable jury could infer from a “USA-only shipping label on a commercial website that a would-be buyer knows that the item is . . . a ‘defense article.'”
Pulungan thus stands as a nice illustration of a court carefully parsing the evidence to determine whether the government has actually satisfied the particular state-of-mind requirement of the law under which the defendant has been charged. One sometimes gets the sense that judges and jurors may be a little too quick to find the requisite mens rea in cases in which defendants have acted in a sneaky or dishonorable manner. (I blogged about such a case here.) But, of course, it is not per se a crime to act dishonorably — even if one mistakenly thinks one is violating the law. It is good to see a court taking care to ensure that a defendant is not punished for the wrong reasons.
(I might also note that Pulungan is a good counterexample to the criticism, discussed in this post, that federal appellate courts are preoccupied with law-declaration to the detriment of careful error-correction.)
Other new opinions in criminal cases this week were:
United States v. Douglas (No. 08-2655) (Kanne, J.) (affirming sentence in drug case).
United States v. Turner (No. 08-2413) (Kanne, J.) (affirming another sentence in drug case).