USA v. Daniel Bernardino
UNPUBLISHED OPINION FILED. [10-10460 Affirmed ] Judge: TMR , Judge: JWE , Judge: JEG Mandate pull date is 10/28/2011 for Appellant Daniel Bernardino [10-10460]
Date Filed: 10/07/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 7, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-160
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
Daniel Bernardino appeals his conviction under 18 U.S.C. § 554(a), which
imposes criminal penalties for “fraudulently or knowingly” facilitating the
exportation of items one “know[s] . . . to be intended for exportation contrary to
any law or regulation of the United States.” Bernardino was convicted of Count
Five of the superseding indictment, which alleged that he facilitated the export
of assorted firearms and ammunition without obtaining the license required by
22 U.S.C. § 2778(b)(2). We AFFIRM.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 10/07/2011
Bernardino requested a jury instruction that would have required both
knowledge that the weapons and ammunition were items for which 22 U.S.C.
§ 2778(b)(2) requires an export license, and an intention to export the weapons
without the license. Bernardino contends that denying this instruction was
error, and that the evidence at trial was insufficient because it did not establish
knowledge of the licensing requirement and the specific intent to disregard it.
All of Bernardino’s arguments are premised on the mistaken view that he
was charged and convicted under a different provision, 22 U.S.C. § 2778(c),
which imposes penalties for “willfully” violating 22 U.S.C. § 2778(b)’s licensing
requirement. References to 18 U.S.C. § 554(a) appear prominently in the
heading and final clause of Count Five of the superseding indictment, and the
district court’s judgment names 18 U.S.C. § 554(a) as the statute of conviction.
But Bernardino omits all discussion of § 554(a) from his briefing, beyond a single
reference in a passing description of a different count.
In any event, § 554(a) does not require the mental states described in
Bernardino’s requested instruction. “Unless the text of the statute dictates a
different result, the term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense.” Bryan v. United States, 118 S.Ct. 1939, 1946,
524 U.S. 184, 193 (1998). In this case, culpability required that Bernardino
know that he was dealing with weapons and ammunition that were intended for
export, and that their exportation would be illegal. Cf. Babb v. United States,
252 F.2d 702, 707 (5th Cir. 1958).
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