{"id":5723,"date":"2009-06-20T17:12:28","date_gmt":"2009-06-20T22:12:28","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=5723"},"modified":"2009-06-20T17:25:37","modified_gmt":"2009-06-20T22:25:37","slug":"seventh-circuit-criminal-case-of-the-week-what-if-the-defendant-thought-he-was-breaking-the-wrong-law","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/06\/seventh-circuit-criminal-case-of-the-week-what-if-the-defendant-thought-he-was-breaking-the-wrong-law\/","title":{"rendered":"Seventh Circuit Criminal Case of the Week: What If the Defendant Thought He Was Breaking the Wrong Law?"},"content":{"rendered":"

\"seventh-circuit2\"<\/em><\/a>When Doli Pulungan attempted to export 100\u00a0military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law.\u00a0 He was just wrong about which law.\u00a0 His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005.\u00a0 Instead, Pulungan violated a different law that requires a license in order to export “defense articles.”\u00a0 Thus, his elaborate ruse of shipping through Saudi Arabia in order to evade the nonexistent Indonesia embargo did him no good.\u00a0 A jury ultimately\u00a0convicted him of “willfully” attempting to violate the export license law, and a judge sentenced him to four years’ imprisonment.<\/p>\n

But was his violation truly “willful”?\u00a0 On appeal, the government conceded that\u00a0“willfully” means “with knowledge that a license is required,”\u00a0but argued that the evidence established Pulungan had this knowledge.\u00a0 The government relied chiefly\u00a0on Pulungan’s dishonesty\u00a0with business associates about\u00a0what he intended to do with the riflescopes and his intent to violate the nonexistent embargo.\u00a0 But\u00a0Pulungan’s dishonesty is\u00a0readily explained by his belief that he was violating the wrong law.\u00a0 Thus, as the Seventh Circuit saw it in\u00a0<\/em>United States v. Pulungan <\/em><\/a>(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.”\u00a0 The court, per Chief Judge Easterbrook,\u00a0was unmoved by\u00a0this use of the transferred intent doctrine and overturned Pulungan’s conviction.\u00a0 <\/p>\n

Those who have taken first-year Criminal Law will recognize the transferred intent doctrine from their study of homicide.\u00a0 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.”\u00a0 But this transfer occurs within a single type of offense: both the crime intended and the crime charged are murder.\u00a0 The Seventh Circuit observed, “So far as we can tell, however, transferring intent from one genus of offense to another has never been permitted.”<\/p>\n

Although casting doubt on the government’s attempt to expand the transferred intent doctrine, the Seventh Circuit did not ultimately have to reject it.\u00a0 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.\u00a0 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.”\u00a0 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.\u00a0 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.'”<\/p>\n

Pulungan <\/em>thus stands as a nice illustration of a court carefully parsing the evidence to determine whether the government has\u00a0actually satisfied the particular state-of-mind requirement of the law under which the defendant has been charged.\u00a0 One sometimes gets the sense that judges and jurors may be a little too quick to find the requisite mens rea\u00a0<\/em>in cases in which defendants have acted in a sneaky or dishonorable manner.\u00a0 (I blogged about such a case here<\/a>.)\u00a0 But, of course, it is not per se\u00a0a crime to act dishonorably — even if one mistakenly thinks one is violating the law.\u00a0 It is good to see a court taking care to ensure that a defendant is not\u00a0punished for the wrong reasons.<\/p>\n

(I might also note that Pulungan <\/em>is a good counterexample to the criticism, discussed in this post<\/a>,\u00a0that federal appellate courts are preoccupied with law-declaration to the detriment of careful error-correction.)\u00a0<\/p>\n

Other new opinions in criminal cases\u00a0this week were:<\/p>\n

United States v. Douglas <\/a><\/span><\/em>(No. 08-2655) (Kanne, J.) (affirming sentence in drug case).<\/p>\n

United States v.\u00a0Turner<\/em> <\/a>(No. \u00a008-2413) (Kanne, J.) (affirming another sentence in drug case).<\/p>\n","protected":false},"excerpt":{"rendered":"

When Doli Pulungan attempted to export 100\u00a0military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law.\u00a0 He was just wrong about which law.\u00a0 His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005.\u00a0 Instead, Pulungan violated a different law that requires a 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