United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-10818
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENT ALAN MCDOWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
On numerous bases, Brent Alan McDowell challenges his
conviction and sentence for aiding and abetting the mailing of
obscene material, in violation of 18 U.S.C. §§ 2(a) (aiding and
abetting) and 1461 (knowingly using the United States mails to
deliver obscene material). Primarily at issue is whether the
evidence was sufficient to support that conviction. In that
regard, McDowell failed to properly move at trial for judgment of
acquittal. Accordingly, our standard of review is narrowed greatly
to whether the conviction constitutes a manifest miscarriage of
justice. That standard is satisfied, however, by the Government’s
failing to show McDowell possessed the mens rea necessary to aid or
abet the violation of § 1461. VACATED.
I.
McDowell and his co-defendants, Gartman and Santilena,
operated an internet enterprise, Conquernet, Inc., which used a
website to sell pornographic videotapes, CDs, and DVDs. Prior to
some point in 2001, its profits had been split among Gartman (the
owner), McDowell (who, among other things, was an officer of
Bamcom, Inc., the website’s billing contact), and Morse (who filled
orders, processed payments, duplicated videos, and mailed them to
customers). Santilena apparently substituted into Morse’s role and
profit-sharing after Morse left the company in 2001. Around that
time, Gartman and McDowell moved to Reno, Nevada, in hopes of
finding an environment more accepting of their business.
The investigation of Conquernet began in April 1998 in
response to complaints concerning a related website and the
unauthorized use of a post-office box. (Concerning the convictions
for that related website, see United States v. Ragsdale, 426 F.3d
765, 768-70 (5th Cir. 2005), cert. denied, 126 S. Ct. 1405 (2006).)
Based on these complaints, authorities, including the Dallas,
Texas, Police Department, the FBI, and the Postal Inspection
Service, began investigating activities related to Conquernet.
Postal Inspectors’ surveillance in July 1998 revealed Morse’s
mailing sadomasochistic videos using, as the return address, a
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post-office box he formerly rented. Four years later, in August
2002 (approximately one year after Morse had left the company),
while Gartman was living in Canada, Gartman and McDowell were
stopped in separate vehicles at the Canadian border. Canadian
customs officials confiscated, from a suitcase in Gartman’s
vehicle, 30 CDs containing a one-hour sadomasochistic movie.
On 17 December 2002, a Postal Inspector, posing as a
Conquernet customer, ordered from its website a set of ten CD-ROM
videos from the “Sexual Torture” category, including one titled
“Torture Video 23”, advertised as, among other things, “really hard
S&M [sadistic and masochistic] action”. Without offering a choice
of shipping method, the website stated the videos would be
delivered by United Parcel Service (UPS). The Postal Inspector
paid using PayPal, whose records showed the payment went to
Santilena’s PayPal account and was ultimately shared with an
account belonging to Gartman’s wife. When the Postal Inspector
did not receive that shipment by 7 January 2003, he sent an inquiry
to the email address provided in his order’s email receipt; that
email address was later determined to belong to Santilena. A same-
day response, signed “Webmaster”, stated: “orders are sent ground
UPS so it can take 3-9 business days depending on where you are at
[sic]”.
When the order had not been received by 28 January, the Postal
Inspector emailed another inquiry, this time attaching his
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transaction information. Again, he received a response from
“Webmaster”, stating the order had been shipped in late December by
UPS ground.
On 29 January, a third email inquiry was sent. That same day,
the Postal Inspector received a response, stating a duplicate of
the order would be sent through the United States mails.
Both shipments (via UPS and the mails) were received.
Fingerprints on the mailed package matched Santilena’s. Part of
“Torture Video 23” was identical to that contained on the CDs
confiscated, as discussed above, by Canadian customs officials in
2002 from Gartman, when McDowell had been present in another
vehicle.
McDowell, Gartman, and Santilena, were indicted. McDowell was
charged in four counts: conspiring to violate federal obscenity
laws (18 U.S.C. §§ 371, 1461, and 1465); and for violating, and
aiding and abetting the violation of 18 U.S.C. § 1465 (two counts;
knowingly using an interactive computer service to sell and
distribute obscene material), and 18 U.S.C. § 1461 (knowingly using
the United States mails to deliver obscene material). McDowell’s
motion to sever his trial from that of the other defendants was
denied.
Following the four-day trial of McDowell, Gartman, and
Santilena, a jury found Gartman guilty of conspiring to violate
federal obscenity laws and of mailing obscene matter, but acquitted
4
him on his remaining charges. It acquitted Santilena on the two
counts with which he was charged. It found McDowell guilty of
aiding and abetting the use of the United States mails to deliver
obscene material, but acquitted him on the remaining three counts.
McDowell’s motions for judgment of acquittal at trial and
post-verdict were denied, as was his new-trial motion. He was
sentenced, inter alia, to 30 months’ imprisonment.
II.
McDowell raises numerous issues on appeal. Because the
evidence is insufficient to convict, we do not reach his other
contentions. In considering the sufficiency issue, the starting
point, as always, is deciding which standard of review applies.
Only through that prism can the claim be decided.
A.
When an insufficiency-of-the-evidence claim of error is
properly preserved through a motion for judgment of acquittal at
trial, it is reviewed de novo. Ragsdale, 426 F.3d at 770. Under
that standard, “‘[w]e will affirm ... if a reasonable trier of fact
could conclude ... the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences from
the evidence to support the verdict’”. Id. at 770-71 (quoting
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)).
5
When, as here, however, a motion for judgment of acquittal
insufficiently preserves a claim, our review is only for a manifest
miscarriage of justice. E.g., United States v. Knezek, 964 F.2d
394, 400 (5th Cir. 1992). Such a miscarriage “exist[s] only if the
record is ‘devoid of evidence pointing to guilt,’ or ... ‘because
the evidence on a key element of the offense [i]s so tenuous that
a conviction would be shocking’”. Id. at 400 n.14 (quoting United
States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988)). In making this
determination, as with the usual sufficiency standard, we consider
the evidence “‘in the light most favorable to the government,
giving the government the benefit of all reasonable inferences and
credibility choices’”. Id. (quoting Ruiz, 860 F.2d at 617).
Defendants did not present evidence. McDowell moved for a
judgment of acquittal after the Government rested. But that motion
challenged only the obscenity vel non of the video, not whether the
Government had proved McDowell possessed the requisite mens rea.
McDowell’s post-verdict written motion for judgment of acquittal
contended, inter alia, the aiding-and-abetting mens rea evidence
was insufficient.
To preserve de novo review, however, a defendant must specify
at trial the particular basis on which acquittal is sought so that
the Government and district court are provided notice. E.g.,
United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007)
(“‘[w]here, as here, a defendant asserts specific grounds for a
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specific element of a specific count for a Rule 29 motion, he
waives all others for that specific count’” (quoting United States
v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc))), petition
for cert. filed, 75 U.S.L.W. 3663 (U.S. May 30, 2007)(No. 06-1602);
United States v. Carbajal, 290 F.3d 277, 288-89 n.19 (5th Cir.
2002) (motion for judgment of acquittal based on sufficiency
challenge was “not adequate to put the government or the district
court on notice that [defendant] challenged [the verdict on other
grounds]”); see also FED. R. CRIM. P. 29. As stated, claims not
specified at trial are reviewed only under the extremely narrow
manifest-miscarriage-of-justice standard. Phillips, 477 F.3d at
219.
It bears noting that the Government did not raise McDowell’s
failure at trial to specify his insufficiency claim in either its
written response to his post-verdict written motion or its brief
here. Even though McDowell’s brief in this court does not mention
standard of review, the Government, in its brief, erroneously
states it should be de novo. It goes without saying, however, that
“we, not the parties, determine our standard of review”. United
States v. Davis, 380 F.3d 821, 827 (5th Cir. 2004).
B.
“Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.” 18 U.S.C. § 2(a). For such aiding and
7
abetting, the Government must prove: the elements of the
substantive offense occurred; and the defendant “‘associate[d]
himself with the venture, ... participate[d] in it as in something
... he wishe[d] to bring about, ... [and sought] by his action to
make it succeed’”. Nye & Nissen v. United States, 336 U.S. 613,
619 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d
Cir. 1938) (L. Hand, J.)). Restated, the defendant must
“consciously share[] in [the] criminal act”. Pereira v. United
States, 347 U.S. 1, 11 (1954).
For the association element of aiding and abetting, this court
has repeatedly held the defendant must have “‘shared in the
criminal intent of the principal[s]’”. United States v. Smith, 546
F.2d 1275, 1284 (5th Cir. 1977) (Wisdom, J.) (quoting and adopting
aiding-and-abetting standard from Johnson v. United States, 195
F.2d 673, 675 (8th Cir. 1952)); see also United States v. Longoria,
569 F.2d 422, 425 (5th Cir. 1978) (“To prove association, there
must be evidence to establish that the defendant ‘shared in the
criminal intent of the principal’.” (quoting Smith, 546 F.2d at
1284)); United States v. Cowart, 595 F.2d 1023, 1031 (5th Cir.
1979) (citing Pereira, 347 U.S. at 11) (aiding and abetting are
terms making the defendant a principal when he consciously shares
in a criminal act)); United States v. Fischel, 686 F.2d 1082, 1087
(5th Cir. 1982) (“To aid and abet, the defendant must share in the
intent to commit the offense”.); United States v. Jaramillo, 42
8
F.3d 920, 923 (5th Cir. 1995) (“To associate with the criminal
venture means that the defendant shared in the criminal intent of
the principal.”); United States v. Lombardi, 138 F.3d 559, 561 (5th
Cir. 1998) (“[T]o aid and abet, a defendant must share in the
intent to commit the offense as well as play an active role in its
commission .... [H]e must have aided and abetted each material
element of the alleged offense”.).
As noted, for the four counts for which he was charged,
McDowell was convicted only under 18 U.S.C. § 1461 (mailing obscene
material). That section prohibits, inter alia, “knowingly us[ing]
the mails” to mail, carry, or deliver any “obscene, lewd,
lascivious, indecent, filthy or vile article, matter, thing,
device, or substance”. 18 U.S.C. § 1461. (Even though the
undercover Postal Inspector received the order both through UPS and
the mail, the Government did not charge any of the three defendants
with violating 18 U.S.C. § 1462, which prohibits “knowingly us[ing]
any express company or other common carrier or interactive computer
service ... for carriage in interstate or foreign commerce” any
“obscene, lewd, lascivious, or filthy book, pamphlet, picture,
motion-picture film, paper, letter, writing, print, or other matter
of indecent character”.)
Accordingly, to convict McDowell for aiding and abetting a co-
defendant’s charged § 1461 offense (on which Gartman, but not
Santilena, was convicted), the Government was required to prove
9
McDowell shared a co-defendant’s criminal intent; i.e, that he knew
the United States mails would be used to deliver the obscene
material at issue. See, e.g., Lombardi, 138 F.3d at 561. In this
regard, McDowell maintains no evidence shows he knew about, much
less intended, using the United States mails to deliver that
material. In the light of there being no such direct evidence, the
Government counters that a series of inferences prove McDowell knew
the mails would be used.
As reflected by its inconsistent answers at oral argument
here, the Government is not clear whether it contends aiding-and-
abetting liability would attach if McDowell simply knew about
Conquernet’s alleged scheme of using the United States mails, or
whether it was required to show he was aware the mails were used
for the specific video at issue. We need not reach this issue
because, even under the narrow, applicable manifest-miscarriage-of-
justice standard of review, the evidence is insufficient for either
basis.
First, the Government contends the jury could have inferred
McDowell knew the mails were used because Conquernet is a small
company, in whose activities and profits McDowell shared. For
example, McDowell had previously duplicated videos and filled
orders for the company; and, Bamcom, McDowell’s company, served as
the billing contact for the website.
10
Second, the Government relies on McDowell’s being present when
Canadian officials confiscated obscene material from Gartman. That
material was identical to the “Torture Video 23” mailed
approximately five months later to the undercover Postal Inspector.
Third, the Government asserts Conquernet had a pattern and
practice of using the United States mails to deliver movies. See
United States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989)
(“Because some of his subordinates ... used [a] practice, the jury
might have reasonably inferred that [the defendant] encouraged this
practice.”). Because McDowell also filled orders for the company,
the Government asserts the jury could have inferred that he also
used the United States mails to do so.
Fourth, and finally, the Government maintains the jury
reasonably could have inferred McDowell knew the United States
mails would be used to deliver Conquernet’s obscene material
because Santilena was not the only person with access to the email
address responding to the undercover Postal Inspector’s inquiries.
Gartman also had access. Additionally, the emails were signed
“Webmaster”, not Santilena. Therefore, according to the
Government, a jury reasonably could have inferred that, although
Santilena mailed the replacement copies of the videos to the
undercover Postal Inspector, he would not have done so without the
approval (or at least knowledge) of Gartman and McDowell.
11
Needless to say, to demonstrate sufficiency, the Government
“must do more than pile inference upon inference”. United States
v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993). Taking the
Government’s offered inferences in turn, they demonstrate the
conviction is a manifest miscarriage of justice.
First, Conquernet’s small size does not reasonably imply
McDowell knew Santilena would mail the videos at issue, especially
when such conduct contravened the company’s stated practice of
shipping UPS. See, e.g., Grimes v. United States, 379 F.2d 791
(5th Cir. 1967) (holding evidence insufficient for aiding and
abetting when defendant was involved in, and received proceeds
from, a four-person gambling operation, but did not know it was
being conducted interstate).
Second, McDowell’s presence in a separate vehicle at the
Canadian border, when identical obscene material was confiscated
from Gartman, says nothing of McDowell’s awareness concerning the
mailing of such material by Santilena approximately five months
later. Compare Lombardi, 138 F.3d at 561 (evidence of
participation in broader criminal scheme insufficient to create
aiding-and-abetting liablity; defendant “must have aided and
abetted the specific crime and not just the overall scheme”), with
Fischel, 686 F.2d at 1088-89 (upholding aiding-and-abetting
conviction when defendant shared possession of cocaine and
12
specifically urged undercover officer to purchase cocaine from
principal accomplice).
Third, the Government’s claiming Conquernet had a prior
pattern or practice of using the United States mails to deliver its
obscene videos does not withstand record review. Nearly all of the
Government’s record citations offered in support of this contention
refer to different witnesses’ testimony concerning the same thing
– the specific mailing of the video at issue in this case. Further
complicating matters, the Government used the term “mail” loosely
in questioning witnesses, making it unclear whether they intended
to say the United States mails, specifically, were used, or, more
generically, any similar method of shipment. Most importantly,
none of the evidence shows McDowell was involved with, or had
knowledge of, such a purported pattern or practice of using the
United States mails. An example from the Government’s brief
illustrates the tenuousness of its contention:
Morse testified that McDowell also “fill[ed]”
orders; if Morse “fill[ed]” orders by sending
them through the U.S. mails, and Morse
described McDowell’s role as also “fill[ing]”
orders, the jury could reasonably have
inferred that McDowell sent orders through the
mail and knew that orders would be sent
through the mail in the future.
This is a classic example of the above-condemned “pil[ing]
inference upon inference”, which we repeatedly have held patently
insufficient. E.g., Maseratti, 1 F.3d at 337.
13
Further, even if there was such a prior pattern or practice,
this court has rejected the contention that a defendant in a
criminal scheme may be constructively imputed with knowledge of his
accomplice’s acts. See Lombardi, 138 F.3d at 562. We have
repeatedly emphasized that aiding-and-abetting liability requires
knowledge of all elements of the underlying crime. E.g., Longoria,
569 F.2d at 425. For example,
in a prosecution for aiding and abetting armed
bank robbery, the government must establish
not only that the defendant knew that a bank
was to be robbed and became associated with
and participated in that crime, but also that
the defendant “knew that [the principal] was
armed and intended to use the weapon, and
intended to aid him in that respect”.
Id. (quoting United States v. Short, 493 F.2d 1170, 1172 (9th Cir.
1974)). Compare id. with Cowart, 595 F.2d at 1035 (evidence of
knowledge sufficient to uphold aiding-and-abetting wire-fraud
conviction when accomplices were required to notify defendant of
potential impediments to wire-fraud crime), and with Nye & Nissen,
336 U.S. at 619 (although there was “no direct evidence tying
[defendant] to the [fraud,] ... there [was] circumstantial evidence
wholly adequate to [show] ... that the makers of the false
[documents] were [defendant’s] subordinates, that his family was
the chief owner of the business, that he was the manager of it,
that his chief subordinates were his brothers-in-law, [and] that he
had charge of the office where the [documents] were made out”).
14
For the conviction under 18 U.S.C. § 1461, the Government was
required, but failed, to show McDowell not only knew Conquernet was
selling obscene material, but also that the material was being
delivered through the United States mails. Longoria, 569 F.2d at
425. Unlike Nye & Nissen, nothing in the record demonstrates
Santilena was McDowell’s subordinate, or that McDowell was notified
of, or otherwise knew about, Santilena’s use of the mails to
deliver the obscene material. 336 U.S. at 619.
Fourth, Gartman’s having access to Santilena’s email account
(used to respond to the undercover Postal Inspector’s inquiries)
does not lead to a reasonable inference that McDowell also had such
access. Moreover, even if the Government had shown McDowell had
access to Santilena’s email account (which, again, it did not),
that access alone would not have been sufficient to show McDowell
knew about, or condoned, the emails to, and concomitant use of the
mail for, the undercover Postal Inspector. See Smith, 546 F.2d at
1285 (defendant’s access to fraudulent bank account insufficient to
demonstrate aiding-and-abetting criminal intent for her alleged
accomplice’s crime of depositing counterfeit cashier’s check).
III.
For the foregoing reasons, the judgment is VACATED and the
mandate shall issue forthwith.
15