United States v. McDowell

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

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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)).

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 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

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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

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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

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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.

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 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.

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 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

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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.

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 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”).

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 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.

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