FindLaw's Fifth Circuit United States Case and Opinions. (2023)

For JOLLY, BARKSDALE and HAYNES, District Judges. Susan B. Cowger, Nathan Franklin Garrett, Dallas, TX, J. Cam Barker (argued), Jeffrey Peter Singdahlsen, U.S. Depth. of Justice, Criminal Division, Washington, DC, for US Gregory Sherwood (argued), Austin, Texas, for Ihsan Elashyi. Bertrand C. Moser (argued), Law Firm of Bertrand C. Moser, Houston TX, for Hazim Elashi. Joseph L. Hood, Jr. (argued), Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Bayan Elashi Camille M. Knight (argued), Smith Amundsen, Chicago, IL, for Basman Elashi. Robert Jackson Herrington (argued), Plano, TX, for Ghassan Elashi

Osumnjičeni Ihsan Elashi, Hazim Elashi, Bayan Elashi, Basman Elashi i Ghassan Elashi1were convicted of illegal export of computer equipment to Libya and Syria, conspiracy to illegally export computer equipment, laundering of proceeds of export offenses, making false declarations on export documents, conspiracy to make false declarations on export documents, trading in property belonging to specially designated terrorist and related crimes. Each of the defendants challenges their convictions in different ways. As for the prosecution of Ihsan, we are RETURNING, based on a previous plea agreement with the government. In all other respects, we AFFIRM.

I. FACTUAL AND PROCEEDING HISTORY

The suspects are five brothers who ran a small family computer company. Born in the Gaza Strip, they moved to Saudi Arabia, then Egypt and finally the United States. Their business partnership began in California in the 1980s when Bayan and Ghassan founded International Computers and Communications, which exported computers to the Middle East, and each brother eventually joined them. In 1992, all five defendants moved to Texas, where they founded InfoCom. Bayan was the CEO; Ghassan was vice president of marketing; Hazim and Ihsan were sales and technical support; and Basman was the head of logistics. The underlying events leading to the defendants' convictions fall into two categories:  (1) violations related to export regulations; and (2) transactions involving the assets of a designated terrorist.

A. Export transactions

The defendants were accused of participating in a series of export operations that form the basis of their convictions.

1. Shipments to Libya via Malta

In early November 1996, Ghassan met Yousef Elamri at a computer conference in Dubai, United Arab Emirates. Elamri owned a computer company in Libya called Computers & Information Technology ("CIT"). Although CIT did not maintain an independent, physical presence in Malta, it engaged a Maltese company, Medfinco, to provide "appointment services" on its behalf. Medfinc employees answered the phone for CIT and forwarded all messages to Libya, and CIT used Medfinc's address in Malta as its own.

InfoCom sent four shipments to CIT via Malta. The first was on March 5, 1997.   InfoCom filed a Shipper's Export Declaration ("SED") for that shipment stating SMS Air Cargo as the final consignee and Malta as the final destination. InfoCom supplied additional computer goods to CIT via Malta on 7 March, 6 June and 16 July 1997.

2. Shipments to Libya via Rome

In June and July 1999, InfoCom carried out three missions in Rome. The goods were ordered by the defendants' brother-in-law, Khaled Bugrara. Khaled was a naturalized citizen, computer science professor, and computer company owner in Massachusetts.

Nureddin Abugrara, Khaled's brother, lived in Libya. In 1995, Nureddin, with the help of Khaled, founded a computer company in Libya called Namatel. Khaled purchased computer equipment for Nureddin, including computers from InfoCom, which Khaled personally delivered to Nureddin in Libya in 1995. In 1999, Khaled again ordered computer supplies from InfoCom. InfoCom sent these goods in three shipments, on June 25, June 30, and July 2, 1999, each addressed to the Rome airport in Nureddin's name. The shipments were picked up at the airport and held at the customs broker. Nureddin then picked them up and brought them back to Libya. SED's InfoCom submitted with the first two shipments Nureddin as the final recipient, and Italy as the final destination.

3. Shipments to Syria

InfoCom sent four shipments to Syria on the following dates:  May 14, 1998; March 19, 1999; April 6, 1999; and July 31, 2000.   For each shipment, InfoCom was required to obtain a transaction-specific license from the Department of Commerce. That didn't work. In addition, InfoCom filed SEDs with shipments dated March 19, 1999 and April 6, 1999 stating that no permit was required and that the value of the goods being exported was understated.

B. Mousa Abu Marzook ownership transactions

In addition to export business, some of the defendants were charged with trading in the property of a specially designated terrorist. Mousa Abu Marzook, the leader of Hamas, is married to the niece of the accused, Nadia Elashi. Many years ago, Marzook made multiple investments in the defendants' computer companies. Relevant to this case, Marzook loaned InfoCom $150,000 in July 1992.   InfoCom made two interest payments to Marzook in 1992.

In February 1993, the New York Times published a front-page article stating that Marzook was the leader of Hamas. Two days later, Nadia transferred several hundred thousand dollars from the United States to Marzook's bank account in the United Arab Emirates. Sometime in the following weeks, InfoCom drew up a "Murabaha Agreement," a form of investment contract under Islamic law, which stipulated that Nadia would invest $250,000 in InfoCom. The contract was for a period of one year and the parties could renew it. Bayan signed to InfoCom; Nadia signed herself; and Marzook signed as "witness".

Evidence at trial showed that Nadia never paid InfoCom under the Murabaha contract. The first $150,000 of the $250,000 investment was paid for by Marzook's earlier loan. In preparing the 1993 ledger, InfoCom deleted Marzook's name from its books and credited his $150,000 payment to Nadia. The remaining $100,000 came in two installments. On March 25, 1993, two days after the Murabaha deal was executed, InfoCom deposited a $50,000 check from Marzook. InfoCom marked the check as "Marzook" on the payment receipt, but listed it on its books as a loan from Nadia. On April 16, 1993, InfoCom received approximately $50,000 from an unknown source, which also recorded it on its books as a loan from Nadia.

From May 1993 to 2001, InfoCom sent interest to Nadia. Payouts were often $3,000, but ranged from $1,000 to $15,000. Whether sent to Marzook or Nadia, all payments from September 1992 to June 1995 were deposited into their joint bank account.

In July 1995, Marzook was arrested upon entering the country. On August 16, 1995, the Treasury Department's Office of Foreign Assets Control ("OFAC") designated Marzook as a Specially Designated Terrorist ("SDT"). 60 Fed Reg 44932 (August 29, 1995). After that date, no one in the United States could legally trade Marzook property without OFAC's permission. 60 Fed Reg 5079 (January 23, 1995); see also 31 C.F.R. §§ 595.201(a), 595.204.

Nadia received no payments from July to October 1995. In November 1995, payments resumed but were deposited into a bank account that Nadia opened in her own name. The payments continued until September 2001, when OFAC issued a freezing order directing InfoCom's banks to freeze funds in which OFAC determined Marzook had an interest.

C.  Court proceedings

On August 21, 2003, a federal grand jury in the Northern District of Texas handed up a second 46-second indictment (the "Indictment"). Counts 1 through 25 relate to defendant's computer export activities under the Export Administration Regulations (“EAR”), 15 C.F.R. points. 730-774 (2007), Libya Sanctions Regulations ("LSR"), 31 C.F.R. section 550 (2003) and the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701-1707 (2006).2Counts 26 through 46 charge the three defendants - Bayan, Ghassan and Basman - with trafficking in SDT assets and related crimes in violation of Executive Order 12947 and the IEEPA.3Zie 50 U.S.C. §§ 1701-1707; 60 Fed.Reg. 5079; 31 CFR §§ 595.201(a), 595.204.

The district court severed the charges in the indictment and ordered separate trials on counts 1 through 25 and counts 26 through 46.   In the first trial, the jury convicted Ihsan on counts 1-2, 7-9, 11, 15-19, 21 , 23-25; I focus on points 1, 4-6, 10, 13-15, 20, 22; Bayan on points 1-2, 4-6, 8-10, 13-15, 22; Basman on points 1-2, 4-11, 13-25; and Ghassana on Counts 1, 10, 13-15, 20.   After the trial, the defendants filed joint motions for acquittal and retrial, which the court denied. In the second trial, the jury found for Bayan and Ghassan on counts 26-46, and for Basman on counts 26, 27, and 37.   After the trial, the defendants moved for acquittal, which the court denied. These consolidated calls followed.

II. ENOUGH EVIDENCE

A. Evaluation standard

Hazim, Bayan, Basman, and Ghassan each dispute the sufficiency of the evidence supporting their beliefs. This court's assessment of the sufficiency of the evidence is " 'very respectful of the verdict.' United States v. Gulley, 526 F.3d 809, 816 (5th Cir.), cert. denied, --- U.S. ----, 129 S.Ct. 159, 172 L.Ed.2d 116 (2008), ( quoting United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)). "The court asks 'whether the evidence, when judged in the light most favorable to [the government] with all reasonable inferences and credible choices made in support of a conviction, enable a rational trier of fact to identify every element of the crime beyond a reasonable doubt.' " Id. (quoting Harris, 293 F.3d at 869). The inquiry is not whether the court would have rendered the same verdict, but whether a rational jury could have found the defendants guilty beyond a reasonable doubt. Id. Even under our deferential standard of review, a conviction does not should be affirmed on appeal based on evidence that only leads to the conclusion that the defendant may be guilty. This Court has explained that "[i]f the evidence tends to equate guilt and innocence or nearly so. reversal is required: "When the evidence is substantially balanced, a reasonable jury must necessarily entertain a reasonable doubt." United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998) (internal citations omitted).

B. Export of beliefs

In 1979, Congress enacted the Export Administration Act of 1979 ("EAA"), Pub.L. No. 96-72, 93 Stat. 503 (1979). The EAA authorized the Secretary of Commerce to issue regulations prohibiting or restricting exports to protect or promote the national security, foreign policy, or interests of the United States. 50 USC app. §§ 2404-2406; United States v. Dien Duc Huynh, 246 F.3d 734, 747 (5th Cir. 2001). To carry out these functions, Commerce promulgated the Export Administration Regulations ("EAR"), which define the obligations of exporters. See 15 C.F.R. points. 730-774 (2007).

1. Shipments to Libya

Libya has always been subject to export restrictions under the EAR as a designated state sponsor of terrorism. In addition, under Executive Order 12543, OFAC issued additional sanctions regulations against Libya. See 31 C.F.R. item 550 (2003); 51 Fed Reg. 875 (January 7, 1986). LSR provided at all relevant times:

Except as permitted, no goods, technology (including technical data or other information), or services may be exported from the United States to Libya, with the exception of publications and donated items intended to alleviate human suffering, such as food, clothing, medicine, and medical supplies intended exclusively for medical purposes.

31 CFR § 550.202. The defendants were charged with willful violation of Section 550.202. Accordingly, with respect to the Libyan shipments, the government had to prove that:  1) the defendants knowingly exported goods, technology, or services from the United States to Libya; 2) the goods, technology or services were not intended to alleviate human suffering; and 3) The defendants knew that they were prohibited from exporting goods to Libya. See 31 C.F.R. § 550.202; United States v. Sipa, 388 F.3d 471, 479-80, 480 AD. 21 (5th Cir. 2004) (approving a jury instruction that an act was committed intentionally if "it was done voluntarily and intentionally and with the specific intent to do something prohibited by law").

A. Shipments to Libya via Malta

It is not in dispute that the defendant company, InfoCom, exported computer goods and technology that eventually arrived in Libya, nor is it in dispute that the computer goods were exported for commercial and not humanitarian purposes. Basman and Bayan argue that there was insufficient evidence that they knew the shipments were destined for Libya via Malta.4The defendants claim that Elamri defrauded them based on CIT's nominal presence in Malta.

The evidence at trial showed that Ghassan met Elamri in Dubai, where the business relationship between the defendants and Elamri began. On February 28, 1997, Elamri faxed Ihsan on CIT letterhead with CIT's Libyan telephone and fax numbers, including the unique area code for Libya. Basman then entered CIT's contact information into InfoCom's customer database using CIT's actual Libyan contact numbers, but later changed CIT's contact information to reflect only Malta's telephone and fax numbers. During this time, InfoCom applied on behalf of CIT to register a country top level domain for Libya. Bayan, who was in charge of internet affairs, called the CIT number in Malta on 14 May 1997 while trying to register a Libyan domain name. In the request for the Libyan domain name, InfoCom listed a Libyan administrative contact. On July 2, 1997, InfoCom received another fax from CIT with CIT's Libyan contact information. InfoCom continued to employ and do business with CIT. It was not until October 1, 1997, when Aries discovered Freight and told InfoCom that CIT was operating out of Libya, that InfoCom stopped doing business with CIT.

In addition to this evidence, the jury received incriminating faxes from InfoCom to CIT emphasizing that all communications and goods must pass through Malta. On April 14, 1997, Ihsan sent CIT a fax with the message:  “We have no problem doing business with you in Malta. As long as all faxes, letters and mail are sent to Malta ․!” (emphasis added). Similarly, on 29 August 1997, Ihsan sent another fax to CIT thanking Elamri for the invitation and stating: "We appreciate you and would like to continue all business dealings with your reputable company as long as we travel Malta [sic]!" (emphasis added ) The jury could reasonably infer that the defendants knew that Malta was only being used to circumvent the ban on exports to Libya.

The circumstances surrounding the shipments to Malta further support the convictions of the accused. The Government provided evidence that Malta was a known transshipment point for goods destined for other locations in the region. InfoCom did not send to CIT in Malta, but to the forwarder there, SMS Air Cargo. A reasonable jury could conclude that the defendants knew that CIT was not actually present in Malta and that Malta was not the final destination for the goods supplied.

Basman and Bayan complain that they were convicted on the basis of family and business relationships. Specifically, they argue that most of the evidence described above is not directly related to any of them. Although Basman and Bayan are correct that they cannot be convicted solely on the basis of their association with the other defendants, a reasonable jury would conclude based on the defendants' close relationship and position of responsibility at InfoCom that they were not ignorant of their relationship. behavior or circumstances. about transactions with profit tax. See United States v. Loe, 262 F.3d 427, 433 (5th Cir. 2001) ("A reasonable inference from testimony that [defendant] is the ``successor'' to the marine company and from job descriptions and other evidence [defendant's] responsibility in marina that he was aware of the under-reporting of vessel sales.") Bayan was InfoCom's CEO. Basman was the logistics manager, making him responsible for the shipping process, among other things.

In addition, there was direct incriminating evidence that Basman and Bayan made false statements to Commerce in 2002 regarding deliveries to CIT. In those statements, they claimed that InfoCom discovered that CIT was in Libya while the last shipment was in transit in July 1997, and that they immediately took possession of that shipment and ceased doing business with CIT. However, evidence at trial showed that InfoCom continued to do business with CIT until October 1997, InfoCom never attempted to recall the shipment, and Federal Express made the delivery instead. As this court has explained, "perhaps the strongest evidence of a defendant's guilt is inconsistent statements to federal officials." United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990).

Given our standard of testing that we observe, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Bayan and Basman knew that the shipments via Malta were destined for Libya.5

B. Shipments to Libya via Rome

Hazim and Bayan argue that there was insufficient evidence that they knew the shipments passing through Rome were destined for or arrived in Libya.6In addition, Bayan contends that the evidence was insufficient to show that he played a role in the transactions.

The evidence showed that the June and July 1999 shipments went to Libya. Khaled Bugrara's uncontroversial testimony was that "[my] brother Nureddin would travel to Italy, pick them up and take them home, back to Libya." There is no doubt that Nureddin lived in Libya and ran a computer company.

There is also enough evidence that Hazim knew that the computers were going to Libya. Khaled, who ordered the computers for Nureddin, worked directly with Hazim. Khaled was Hazim's cousin and close friend. Khaled told Hazim that Nureddin lived in Libya and that Khaled had helped Nureddin set up a computer company there. Hazim knew that the InfoCom goods ordered by Khaled were being sent to Nureddin.

The evidence also showed that Bayan knew Khaled was in Libya. Bayan knew that Khaled had previously bought computers from InfoCom for Nureddin in Libya. Khaled contacted Bayan about registering a Libyan domain name, and Khaled provided the name and address of Bayan Nureddin in Libya. Bayan submitted a request to register the domain name, and as part of the request, he listed Nureddin's Libyan address, phone and fax number as an administrative contact. As with the shipments via Malta, there is sufficient evidence to support the jury's verdict on the shipments via Rome.

2. Shipments to Syria

Basman, Hazim, Ghassan and Bayan are challenging their convictions for exporting computer goods to Syria without the required export permit. As a designated state sponsor of terrorism, Syria has always been subject to export restrictions under the EAR. Under these restrictions, it was illegal to export certain goods, including almost all computers, to Syria without a single transaction license. See, for example, 15 C.F.R. § 742.9 (2000). Willful violations of export restrictions to Syria are subject to criminal sanctions under the EAR. See 15 C.F.R. § 764.3(b). Accordingly, with respect to the Syrian shipments, the government had to prove that the defendants:  1) knowingly exported computer products from the United States to Syria; 2) computer parts were exported without permission; and 3) The defendants knew that they were prohibited from exporting computer goods to Syria without a permit. See 15 C.F.R. § 742.9; Sipe, 388 F.3d at AD 480. 21.

Basman argues that the evidence was insufficient to show that he knew the permits were required. Basman was well educated and had been exporting computer equipment to the Middle East for over a decade. The company he ran with his brothers identified the Middle East in general, and Syria in particular, as a market for computer products. In such a highly regulated industry, this would draw Basman's attention to the obvious export restrictions. Basman's knowledge of guilt can also be inferred from his explanation of why InfoCom was not licensed in his affidavit to Commerce. Basman stated in his affidavit that Trans-Trade, which assisted with the shipment, did not express any doubts or concerns about the possibility of delivering the shipment without an export permit. In fact, Trans-Trade has repeatedly expressed concern about the shipment. Basman also entered false and misleading information in the export documents in a way that could have concealed the need for permits. Basman's false statements "provide[ ] compelling circumstantial evidence of [his] guilt." Diaz-Carreon, 915 F.2d at 955.

Basman claims he acted in good faith based on select pages of regulations faxed to him by Trans-Trade. Basman testified that he could not read the last category on the card, which contained the relevant restrictions. Although the restrictions were partially hidden, the document made it clear that the hidden information would apply to shipments to Syria and should be consulted in cases of willful blindness. Additionally, Basman did not make this statement in his Handel affidavit, although he claimed to be explaining why he did not believe a license was required. There was sufficient evidence for a reasonable jury to conclude that Basman knew that shipments to Syria required a permit.

Hazim and Ghassan also claim that there was no evidence that they were aware of the export permit requirements or that they deliberately ignored them. There is no doubt that both Hazim and Ghassan were directly involved in the transactions as both interacted extensively with the client. The only question is whether they knew that an export permit was required. Both had significant experience in exporting computers to the Middle East and worked in a small family business that focused specifically on Syria as a market. In addition, the question of whether these computers needed a license was not obvious; a transaction-specific license is required to export all but the most outdated computers to Syria, and the computers InfoCom exported were current technology at the time. Under the circumstances, a reasonable jury could find that Hazim and Ghassan were aware or willfully ignorant of the export permit requirements. See United States v. Butler, 429 F.3d 140, 152-53 (5th Cir. 2005) (believing that a reasonable jurist could infer from the defendant's experience and viewpoint that he would have known that the virus was considered dangerous to be labeled) . Given our standard of deferential judgment, we believe there was sufficient evidence for a reasonable jury to conclude that Hazim and Ghassan were aware of the licensing requirements.

Finally, Bayan claims that there is no evidence that he was personally involved in any of the relevant shipments to Syria. The government has no direct evidence that Bayan was involved in the actual sale of computer equipment, but there was substantial evidence that Bayan cooperated with the customer who received the goods. Given Bayan's position within InfoCom and his relationship with the customer, we believe there was sufficient evidence for a reasonable jury to conclude that he participated in the deliveries to Syria.

3. Conspiracy to violate export laws

Basman, Hazim, Ghassan and Bayan argue that the evidence does not show that they conspired to violate export laws. They claim that they were convicted solely on the basis of a family-business relationship and that mere evidence of "association" is not enough to convict them.

To prove a conspiracy under 18 U.S.C. § 371 the government must prove “(1) an agreement between two or more persons to accomplish an unlawful purpose; (2) the defendant's knowledge of the unlawful purpose and voluntary consent to join the conspiracy; and (3) an overt act by one or more members of the conspiracy in furtherance of the object of the conspiracy.”

United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003) (citing United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001)). "[A] general conviction on a multi-subject conspiracy [charge] may stand even if the evidence is insufficient to support a conviction on any of the counts charged." United States v. Calle, 120 F.3d 43, 45 (5th Cir. 1997). The evidence must be sufficient for a conviction of only one of the counts charged. Identification card.

The defendants are right that presence or association, in isolation, does not support their beliefs. See United States v. Soape, 169 F.3d 257, 264 (5th Cir. 1999). However, this Court has also held that "when inferences drawn from the existence of a family relationship or mere conscious presence are combined with other circumstantial evidence, there may be sufficient evidence to support a conspiracy conviction." Identification card. (quotation marks omitted). In this case, there is sufficient evidence for a conspiracy conviction.

First, as noted above, there is some evidence of the involvement of each of the defendants in the crimes that were the subject of the conspiracy. Each of the defendants played a different but necessary role in each transaction. Bayan was the founder and CEO of InfoCom, Ghassan was the vice president of marketing, Hazim was the technical expert and salesman, and Basman was the logistics manager. InfoCom, a company founded by the defendants, developed a business plan targeting the Middle East, particularly Syria, as a potential market. Moreover, the suspects were closely related.

Based on the totality of the evidence, including the defendants' knowing participation in the illegal transactions, their family and business history, the intimate nature of their small family business, and their role and experience in the business, a reasonable jury would find that the defendants agreed to export goods to Libya and Syria in violation Libyan embargo and EAR licensing requirements.

C.   Filing and Conspiracy to File SEDs with False Values ​​for Goods Exported to Countries Other than Libya and Syria

Basman, Hazim, Ghassan and Bayan dispute their conspiracy and material misrepresentations regarding SEDs filed with undervalued goods exported to countries other than Libya and Syria. The elements of the false statement violation are:  “(1) statement, (2) falsehood, (3) materiality, (4) specific intent, and (5) agency authority.” United States v. Leal, 30 F.3d 577, 584 (5th Cir. 1994); see also 18 U.S.C. § 1001.

Basman claims that the evidence was insufficient to show that he actually made a false statement because some of the SEDs were signed by the shipping companies and not by Basman himself. This argument is baseless. In construing similar perjury statutes, this court has held that the defendant need not personally make the false statement; it is sufficient that he intentionally caused false testimony. See United States v. Hopkins, 916 F.2d 207, 216 (5th Cir. 1990); United States v. Austin, 585 F.2d 1271, 1277 (5th Cir. 1978). There is evidence that Basman either signed the SEDs himself or that a freight forwarder signed them on his behalf with forged values ​​that Basman supplied and intended to use.

Basman also alleges that the government failed to prove that the inaccuracies on the SEDs were material, arguing that the values ​​on the SEDs are relevant only to the calculation of the United States' trade deficit and that the sum of the inaccuracies is not material to that amount. The materiality test under 18 U.S.C. § 1001 was cited in United States v. Lichenstein, 610 F.2d 1272 (5th Cir. 1980). "A material false statement under [§ 1001] is a statement that affects or is likely to affect the performance of a governmental office." Lichenstein, 610 F.2d at 1278.   It is not necessary to show that the false statement actually affected the government or caused any pecuniary harm to be material under § 1001.  Id. A false statement must only have "the ability to impair or disrupt the functioning of a government agency." Identification card.; see also Brogan v. United States, 522 U.S. 398, 402, 118 S.Ct. 805, 139 L.Ed. 2d 830 (1998). The purpose of this “judge-ordered limitation on materiality” is to ensure that the scope of § 1001 is limited to reasonable limits and cannot contain trivial falsehoods. Lichtenstein, 610 F.2d at 1278.

Clearly, the misrepresentations in this case, if widespread, would prevent the government from using the SED to accurately calculate the trade deficit. InfoCom engaged in a company-wide practice of understating the value on export documents by several thousand dollars on each shipment, totaling nearly $700,000 in undeclared values.

Evidence also shows that the government used SEDs for purposes other than calculating the trade deficit. The government provided evidence that SED values ​​are used as an enforcement tool to help determine which transactions require additional monitoring. Therefore, the intentional misrepresentations compromised the government's ability to identify shipments that may have violated United States export regulations. See United States v. Fedorenko, 597 F.2d 946, 951 (5th Cir. 1979) (stating that misrepresentations in naturalization proceedings are material if "discovery of the true facts would lead the government to investigate those other facts which justify the denial of citizenship.") Not all misstatements of value meet this standard, but there was sufficient evidence that the misstatements in the SEDs were material in this case.

Hazim, Ghassan and Bayan claim that they did not know or participate in the preparation and submission of SEDs with falsely declared values. There was sufficient evidence to support their convictions for making false statements. Hazim, Ghassan and Bayan do not deny that they knew that InfoCom used a dual billing system to misrepresent the value of goods that InfoCom sold. Each communicated regularly with customers about the practice, and from those communications it was clear that the reason for the practice was to lower the values ​​that would appear on the shipping documents. There was also evidence that all InfoCom employees knew that completing the SED was a necessary step in the process of shipping goods and that the value on the SED must match the value on the invoice. A reasonable jury could conclude that the defendants knew that the fraudulent value information they prepared would be listed on the SED forms.

D. Business with SDT assets

Bayan, Basman and Ghassan challenge the sufficiency of the evidence supporting their convictions for trafficking in SDT assets, which was the subject of a second trial ordered by the District Court for separate trials.

Executive Order 12947 prohibits any person in the United States from trading in any assets or ownership interest of SDT. 60 Federal Reg. 5079; see also 31 C.F.R. §§ 595.201(a), 595.204. Under the IEEPA, a willful violation of Executive Order 12947 is a felony. 50 U.S.C. § 1705(a), (c). Accordingly, the elements of the offense of trading in SDT's assets are:  (1) the defendants knowingly acted to benefit SDT's assets or ownership interest; (2) was owned in the United States or in the possession of a United States person; and (3) the defendants knew that they were prohibited from trading in the assets or ownership interests of SDT. See 50 U.S.C. § 1705(c); 31 CFR §§ 595.201(a), 595.204; Sipe, 388 F.3d at AD 480. 21.

On August 16, 1995, OFAC designated Marzook, the leader of Hamas, as an SDT. See 60 Fed.Reg. 44932.   After that date, no person in the United States may lawfully trade in money, notes, obligations, or other interests owned by Marzook without the authorization of OFAC. See 31 C.F.R. § 595.310 (definition of “ownership”).

Defendants do not dispute that the $250,000 investment in InfoCom and the resulting payments were held in the United States or owned by US persons, nor do they dispute that they traded in those assets. The defendants also do not deny that they knew that Marzook was an SDT from August 1995 or that trading in its assets after that date was illegal. The only disputed issues are whether the evidence sufficiently showed that Marzook had an interest in the $250,000 investment and the proceeds thereof, and whether each defendant knew of that interest.

The defendants claim that the Murabaha agreement assigned Marzook's investment to his wife Nadia. There is no doubt that the defendants could not have been convicted if they believed that Marzook no longer had an interest in his investment. The government argues that it presented sufficient evidence for a reasonable jury to conclude that the Murabahah deal was a sham designed to conceal Marzook's investments.

The facts surrounding Marzook's investment and execution of the Murabaha Agreement suggest that the defendants and Marzook were concerned that their business relationship would become public knowledge, putting Marzook's assets at risk. When the New York Times published a front-page article claiming that Marzook was the leader of Hamas, Nadia almost immediately began moving Marzook's assets out of the United States. At that time, the Murabaha agreement was drawn up. The Murabaha Agreement does not say anything about the allocation of any share with Marzook to Nadia, suggesting that the purpose of the agreement was something other than allocation.

After the deal with Murabahah, InfoCom tried to remove Marzook's name from its books, which the jury said was an attempt by Marzook and the defendants to cover their tracks. The defendants repeatedly lied to the police about InfoCom's previous financial dealings with Marzook. For example, in the presence of Basman and Ghassan, Bayan falsely told federal agents enforcing a grand jury subpoena that there were no records of any dealings between InfoCom and Marzook. In response to OFAC's inquiries, InfoCom reported that it had no transactions with Marzook. Basman forwarded InfoCom's financial statement falsely claiming that Nadia contributed $150,000 in March 1993, when in fact the contribution was made by Marzook in July 1992. Ghassan sent the Murabaha agreement to Nadia and discussed it with her. Later, during a telephone conversation with Nadia in 1996, Ghassan became concerned that a journalist calling Nadia would reveal the financial relationship between InfoCom and Marzook. There is no plausible explanation for the defendants' attempts to conceal Marzook's financial dealings with InfoCom if they believed that the Murabaha agreement deprived Marzook of any investment interest. As mentioned above, knowledge of guilt can be derived from false statements and attempted cover-ups. Diaz-Carreon, 915 F.2d at 955.

There is evidence that the defendants and Marzook continued to treat the investment as property of Marzook even after the Murabaha agreement was executed. After the deal was done, InfoCom deposited a $50,000 check written by Marzook, not Nadia, as partial payment for the required $250,000 investment. A handwritten list of InfoCom investors found in Basman's office was marked "MUSA = 250". "Musa" is the English spelling of Marzook's name. The note could not have been written before the Murabaha agreement was drawn up, as almost half of the $250,000 investment was made after the agreement was executed. There was also evidence that Marzook continued to have authority and communicate with the defendants regarding the proceeds of his investment.

Bayan, Basman and Ghassan argue that even if the Murabaha deal was fraudulent, there is insufficient evidence to conclude that they knew the investment remained in Marzook's ownership. Evidence of defendants' attempts to conceal Marzook's financial transactions with InfoCom strongly suggests otherwise. See United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003) (stating that a defendant's false statements "may lead to an inference of guilt"). Although not an act per se, it should also be noted that all three defendants not only had a long-term business relationship with Marzook, but were also married to him.

Based on the totality of the evidence, including the defendants' attempts to conceal their connection to Marzook, their family and business history, the intimate nature of their small family business, and their role and experience in the business, a reasonable jury could conclude that the defendants knew that the Murabaha agreement was designed to defraud to conceal the fact that Marzook retained an interest in his $250,000 investment in InfoCom.7

III. NON-PERSECUTION CLAUSE IN IHSAN PLEASE AGREE

Background

Ihsan claims that by filing the indictment against him that led to this case, the government violated a plea agreement with him that stemmed from his various cases.8We agree.

The facts surrounding the plea bargain are as follows. In August 2000, Ihsan left InfoCom to start his own computer export company, Tetrabal Corporation. In September 2001, the Department of Commerce issued a Temporary Denial Order ("TDO") against InfoCom, Tetrabal and the Elashi brothers individually. TDO alleged that InfoCom violated export laws by exporting goods to Libya and Syria. Despite the TDO, Ihsan and Tetrabal continued to export to Saudi Arabia, Jordan, Egypt and Lebanon. In an indictment filed on February 6, 2002, and superseded on April 10, 2002, Ihsan was charged with thirteen counts of shipping goods in violation of the TDO and other related charges. The accusation related to the export of the company Tetrabal.

On June 17, 2002, Ihsan entered into a plea deal with the government, agreeing to plead guilty to one count of shipping in violation of the TDO. In return, the government agreed that it "will not seek, select, or prosecute any further criminal charges against [Ihsan] arising out of facts and circumstances currently known to the government that relate to [Ihsan's] involvement in crimes covered by the Exchange Act." charges." The letter accompanying the plea agreement specifically stated that the plea does not absolve Ihsan of any responsibility for acts he previously committed as a representative of InfoCom.

B. Standard of assessment

"This court reviews a claim for violation of a plea agreement de novo and accepts the district court's findings of fact unless they are clearly erroneous." United States v. Lewis, 476 F.3d 369, 387 (5th Cir.), cert. denied, --- US ----, 127 S.Ct. 2893, 167 L.Ed. 2d 1164 (2007).

C. Discussion

"If a defendant pleads guilty as part of a plea bargain, the government must strictly adhere to the terms of its promises in the agreement." United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). We "apply general principles of contract law to interpret the terms of a settlement agreement." Lewis, 476 F.3d at 387.   A plea agreement is therefore construed strictly against the government as drafter. United States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997). “In evaluating whether a plea agreement has been violated, this Court considers ``whether the government's conduct was consistent with the defendant's reasonable understanding of the agreement.'' ”  Lewis, 476 F.3d at 387-88 (citing United States v. Valencia, 985 F. 2d 758, 761 (5th Cir.1993)).

The government agreed that it "will not seek, select, or prosecute any further criminal charges against [Ihsan] arising out of facts and circumstances currently known to the government regarding [Ihsan's] involvement in the crimes committed under the surrogate charge. ." Thus, the general language of a plea bargain is limited in only two ways for purposes of our study:  (1) the statute of limitations must “arise from” facts and circumstances known to the government at the time of the bargain; and (2) that knowledge must consist of the facts and circumstances surrounding Ihsan's involvement in the crimes alleged in the Tetrabal indictment.

At the time of the plea, the government was apparently aware of the "facts and circumstances" of the Libyan and Syrian missions that form the basis of the current prosecution. There is no doubt that the current prosecution "arises out of" those shipments. Both the Supreme Court and this Court have given a very broad interpretation to the term "arises from" in other contexts. See e.g. Prima Paint Corp. c. Flood & Conklin Mfg. Co., 388 U.S. 395, 398, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (recognizing that an arbitration clause using that term was "broad"); Ben. State Ins. Co. c. Bailey, 133 F.3d 363, 370 (5th Cir. 1998) (“This Court has held that the words ``manufactured,'' when used in an insurance policy, are broad, general, and inclusive terms covering a wide range of coverage. " (int. quotation marks omitted)).

Therefore, the question arises whether the shipments to Libya and Syria, which are originally TDO predictions, are the facts and circumstances that "surround" Ihsan's involvement in the crimes referred to in the Tetrabal indictment. The accusations against Tetrabalus leave no doubt that they are.9In the Tetrabal indictment, the government discussed InfoCom as well as shipments to Libya and Syria. In fact, the government has refiled and incorporated by reference its discussion of InfoCom and the deliveries to Libya and Syria associated with each count of the Tetrabal indictment. The apparent purpose of including this information in the indictment was to inform Ihsan of the facts and circumstances surrounding the criminal offenses in question. See United States v. Nevers, 7 F.3d 59, 63 (5th Cir. 1993) (noting that an indictment must "describe the specific facts and circumstances surrounding the crime in question in such a manner as to inform the defendant of the specific crime charged"). ").

The government claims that the crimes charged in the Tetrabal indictment related only to certain shipments to countries other than Libya and Syria, years after the shipments at issue in this case. While shipments to countries other than Libya and Syria formed the basis for the specific crimes charged, Ihsan's plea agreement was not so limited. The government agreed not to prosecute crimes arising from the facts or circumstances "surrounding [Ihsan's] involvement in the crimes addressed in the superseded indictment." (emphasis added). This language is much broader than the plea agreements considered in several other opinions of this court. See, e.g., Lewis, 476 F.3d at 387-88; United States v. Cantu, 185 F.3d 298, 305 (5th Cir. 1999) ("The language of the plea agreement is narrowly worded, speaking only of the government's obligation to dismiss ``Count II of the first superseding indictment.'" ).We believe that the language of the plea agreement in this case unambiguously applies to all crimes arising from the conduct alleged in the Tetrabal indictment, including the shipments to Libya and Syria that led to Ihsan's conviction in this case.

The government asks this court to consider the accompanying letter to the plea agreement, which refers to the attached agreement as a "plea offer" and states that the plea agreement does not absolve Ihsan of responsibility for the actions he committed as a representative of InfoCom. We decline to consider the cover letter because the meaning of the settlement agreement is unequivocal. See, e.g., United States v. Ballis, 28 F.3d 1399, 1410 (5th Cir. 1994) (stating that although the circumstances surrounding settlement negotiations may indicate the parties' intent, “supporting evidence ․ is not acceptable for the meaning of an unequivocal settlement agreement."). Accordingly, we believe the government violated its plea agreement with Ihsan by prosecuting this case. We reverse the district court's denial of Ihsan's motion to dismiss the indictment and let his conviction in this case vacate. Of course, his conviction for the incident with Tetrabal will stand.

IV. CO-CONSPIRATOR STATEMENTS

Background

As noted above, in September 2001, the Ministry of Commerce entered a TDO prohibiting InfoCom and the defendants from exporting goods. The TDO was based on evidence that the defendants shipped goods to Libya and Syria without the necessary permits or authorizations and submitted false SEDs. In February 2002, Bayan and Basman filed an affidavit on behalf of InfoCom to satisfy Commerce that they had not knowingly violated export laws and that they had terminated the TDO so that InfoCom could continue its export business.

During the trial, the government introduced affidavits to prove the defendants' guilt by showing that the explanations in the affidavits contradicted the evidence at trial. Ghassan objected, but the court accepted the affidavits against all defendants, ruling that they were co-conspirator statements made during and in furtherance of the conspiracy. Ghassan argues on appeal that the conspiracies were not statements made by co-conspirators during and in furtherance of the conspiracy and that, as a result, their admission violated the Confrontation Clause and hearsay rules.

B. Standard of assessment

The district court's finding that the affidavits were admissible as co-conspirator statements is on review for an abuse of discretion. United States v. Robinson, 367 F.3d 278, 291 (5th Cir. 2004).

C. Discussion

Under our precedent, a proponent of admission under Rule 801(d)(2)(E) must "prove by a preponderance of the evidence" (1) the existence of a conspiracy, (2) the statement was made by a party co-conspirator, (3) the statement was made during the course of the conspiracy and (4) the statement was made in furtherance of the conspiracy.” United States v. Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (quoting Robinson, 367 F.3d at 291-92). Ghassan concedes that a co-conspirator's statement admitted under Rule 801(d)(2 )(E) does not violate the Confrontation Clause, so the only question for the court to decide is whether the affidavits are admissible under Rule 801(d)(2)( E).

The jury found beyond a reasonable doubt that Bayan, Basman, and Ghassan were members of a conspiracy that satisfied the first two requirements of Rule 801(d)(2)(E). Ghassan claims the statements did not contribute to the conspiracy. We don't agree. The shipment of goods abroad was an essential part of the conspiracy and could not continue as long as the TDO was in force. "Attempts to conceal an ongoing conspiracy may of course deepen the conspiracy by ensuring that the conspirators will not be discovered and that the conspiracy will be brought to an end." United States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000).

Ghassan also claims that the conspiracy was not ongoing in 2002 when the affidavits were filed because the indictment states that the conspiracy ended on or about August 2001. This is partially true. The indictment alleged that the export conspiracy ended around August 2001, but also alleged that the misrepresentation conspiracy continued "until or around the date of this [Second Superseding] Indictment," which was returned on August 21, 2003. The affidavits could used to further the conspiracy with false statements, which also depended on InfoCom's ability to export goods.

Even if the indictment charged only the export conspiracy, the government would not be limited to offering the statements of co-conspirators in furtherance of that conspiracy as defined in the indictment. " 'The conspiracy about which the statements of the co-conspirators are admitted need not be the same conspiracy with which the defendant is charged.' Delgado, 401 F.3d at 299 (citing United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.1993)). The language of the indictment is therefore not decisive.

Accordingly, we believe the trial court did not err in admitting Bayan's and Basman's affidavits as conspiratorial statements.

V. INSTRUCTIONS TO THE JURY

A. Evaluation standard

"An instruction properly challenged will be tried for an abuse of discretion." United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005). "We consider whether the instruction, taken as a whole, 'is a correct statement of the law and whether it clearly instructs jurors on the legal principles applicable to the factual issues before them.' " ID card. (citing United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002)). "In determining whether the evidence supports the charge, the evidence and all reasonable inferences that may be drawn therefrom shall be viewed in the light most favorable to the Government." Identification card. at 378.

B. The jury instruction on willful ignorance

Basman, Bayan, Hazim, and Ghassan contend that the court erred in instructing the jury on willful ignorance. They claim that there was no evidence to support such a statement.

This court grants a designation of willful ignorance if there is a sufficient factual basis. Identification card. "There is an adequate factual basis if the record supports the conclusion that '(1) the defendant was subjectively aware of the high probability of illegal conduct; and (2) the defendant deliberately sought to avoid knowledge of the illegal conduct.” Id. (citing United States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998)).

Viewing the evidence in the light most favorable to the government, the court did not abuse its discretion in issuing the willful ignorance instruction. As mentioned above, the government offered evidence of suspicious circumstances surrounding the shipments to Libya and Syria. The goods were sent to a freight forwarder, CIT sent faxes from Libya, the defendants entered Libyan contact information into their database, the goods were sent to Rome to a buyer known to live in Libya, and the defendants instructed their buyers that communications and goods must pass "through" unsanctioned countries. The government also offered evidence of suspicious circumstances surrounding Marzook's investment in InfoCom and the Murabaha deal following the public disclosure of Marzook's terrorist ties. This evidence supported the conclusions that the defendants were subjectively aware of the high probability of illegal behavior and that they deliberately tried to avoid learning about illegal behavior.

C. Jury instructions on the meaning of “intentional” under the IEEPA

Bayan, Ghassan, and Basman argue that the court failed to properly instruct the jury on the elements of the IEEPA counts. The defendants argue that in order to be convicted of trafficking in SDT assets, the government must prove that the defendants not only intended to violate the law by trading SDT assets, but also that they intended the assets to be used to support SDT's illegal activities.

The IEEPA makes it a crime to willfully "violate, attempt to violate, conspire to violate, or cause a violation to violate any permit, order, regulation, or prohibition issued under this chapter." 50 USC § 1705(a), § 1705(c). Executive Order 12947, which was implemented pursuant to the IEEPA, prohibits any person in the United States from trading in the assets or ownership interests of SDT. 60 Federal Reg. 5079.

The defendants argue that the statutory requirement that the act be done "intentionally" means that the government must prove that the defendants not only intended to violate the law by trading SDT assets, but also that their intent was to use the assets for further ownership over SDT. illegal activities of SDT. Defendants cite counsel from the Middle District of Florida in support of their arguments. See United States v. Al-Arian, 308 F.Supp.2d. 1322, 1340 (MDFla. 2004). Al-Arian believed that part of the crime of trading in SDT assets was that the accused had "the specific intent that the contribution be used to further SDT's illegal activities". Identification card.

Nothing in Executive Order 12947 limits its prohibition to trafficking in assets used to further illegal SDT activities. It prohibits trading in any SDT assets. 60 Fed.Reg.5079.   As other courts have noted, adding a requirement that the defendant have a specific intent to promote terroristic unlawful activity would effectively change the statute. See, e.g., United States v. Assi, 414 F.Supp.2d 707, 724 (E.D.Mich.2006); Linde v. Arab Bank, PLC, 384 F.Supp.2d 571, 587 n. 11 (EDNY 2005); United States v. Marzook, 383 F.Supp.2d 1056, 1070 (N.D.Ill.2005). We refuse to follow Al-Arian here.

In Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), the Supreme Court ruled that the term "willful" in the criminal context generally requires that "the government must prove that the defendant acted with knowledge that his conduct was unlawful." Identification card. at 192, 118 S.Ct. 1939 (quotation marks omitted); see also Sipe, 388 F.3d at 480 AD. 21 (agreeing with a jury instruction that an act was committed with intent if "it was done voluntarily and intentionally and with the specific intent to do something prohibited by law"). The court correctly instructed the jury that "intentionally" meant "with the specific intent to do something prohibited by law; that is, with the malicious intent to violate or ignore the law." Therefore, we believe the trial court did not err in instructing the jury.

YOU. OTHER ALLEGED ERRORS IN THE TEST

A. Not to discharge a juror for cause

Bayan argues that the district court erred in not excusing a juror in the case who expressed strong feelings about the Israeli-Palestinian conflict and Palestinian suicide bombers and activists.10The district court examined the juror and found that he was able to set aside his opinion and properly exercise it. The defendants then used a peremptory strike to exclude him from the jury.

Bayan's arguments are precluded by the Supreme Court's decision in United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed. 2d 792 (2000). on which no biased juror sat, he was denied any right based on the rules or the constitution. 2007), certified. denied, --- US ----, 128 S.Ct. 1912, 170 L.Ed. 2d 775 (2008).

B. Testimony that defendants spoke with their attorney

Ghassan contends that the district court erred in admitting that the defendants spoke with their attorneys during the FBI's July 1995 InfoCom subpoena. Ghassan concedes that his claim is foreclosed by this Court's prior opinions holding that a prosecutor's reference to the silence of a non-testifying defendant before arrest does not violate the pre-arrest privilege against self-incrimination if the defendant's silence has not been violated. caused by or in response to the actions of a government agent. See, e.g., United States v. Salinas, 480 F.3d 750, 758 (5th Cir.), cert. denied, --- US ----, 128 S.Ct. 487, 169 L.Ed.2d 339 (2007).

C. Slotargument

1. Background

Ghassan claims the government misrepresented his decision not to testify in the second trial during closing arguments. During the second trial, Ghassan's attorney asked FBI agent Miranda to describe several parts of the Murabaha agreement, including a paragraph that reads: “[W]here the other party intends to invest its fund with the first party to make a profit based on Islamic law. .” Ghassan's advisor asked Miranda, "So it really should be 'her', right?" citing the fact that the other party was Nadia. Miranda replied, "I think you should ask your client, sir." No party had any objections. The government's lawyer referred to the statement during his closing argument, prompting an objection from Ghassan's lawyer. The objection was rejected.

2. Evaluation standard

The government argues that because Ghassan did not object when the testimony was given, this matter is triable for plain error. The government is right about the admissibility of the testimony. See United States v. Olan, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993). Ghassan clearly cannot meet the standard for plain error, and to the extent that he challenges the admissibility of the trial testimony, we hold that the court did not commit plain error.

Ghassan objected to the public prosecutor's remark during the closing argument, and the court rejected that objection. Whether the prosecutor's argument is an inadmissible comment on the defendant's right not to testify is judged de novo. United States v. Martinez, 151 F.3d 384, 392 (5th Cir. 1998).

3. Discussion

"'The test for determining whether the prosecutor's comments constitute a comment on the defendant's silence is a two-fold alternative:  (1) whether the plaintiff's intention to comment on the defendant's silence was clear or (2) whether the character of the remark was such that the jury would naturally and necessarily interpret it as a remark about silence of the accused." " ID. (citing United States v. Mackay, 33 F.3d 489, 495 (5th Cir. 1994)); see also Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir. 2003). "Intent prosecution is not apparent if there is another equally plausible explanation for this remark." Cotton, 343 F.3d at 751 (citing United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)). In deciding whether the jury would naturally and necessarily interpreted the comment as commenting on the defendant's failure to testify, "the question is not whether a jury would possibly or even likely view the disputed comment in this way, but whether a jury would necessarily do so." to make.' " Id. (quoting Grosz, 76 F.3d at 1326).

The disputed testimony was given in response to a question from Ghassan's attorney, a question the witness was apparently unable to answer. The testimony itself and the prosecution's subpoena to that testimony did not mention the failure to testify, and we believe that the jury would not necessarily have interpreted this as commenting on Ghassan's choice not to take the defensive stand. See United States v. Guerra, 293 F.3d 1279, 1288-89 (11th Cir. 2002) (stating that when a government witness testified on cross-examination, ``You should ask your client,'' there is no ``reason for concluding that the jury would naturally and necessarily interpret the comment as a reference to [the defendant's] alleged silence, since the context of the statement reveals that the witness was referring to his inability to answer the question"). the apparent purpose of making the statement during closing arguments was to draw the jury's attention on evidence that the Murabah deal was part of the defendants' attempt to conceal Marzook's investment.erred in overruling Ghassan's objection.

D. Do not edit the wiretapping

1. Background

The defendants argue that the court erred in denying a mistrial after the government falsely released a tape recording of Ghassan stating that "America practiced terrorism." The government was instructed to edit the interview to exclude those words, but did not do so. The error was not noticed until the tape was played to the jury. The defendants requested the annulment of the trial, which the court refused. The parties then agreed that the matter should not be brought before a jury in order to avoid drawing further attention to it.

The government concedes that the tape should have been redacted, but argues that there was no significant possibility that the negative evidence materially affected the jury's verdict because the tape was played only once in passing, and the sentence it had to redact was not mentioned again during the trial. procedure.

2. Evaluation standard

We review a denial of a mistrial for an abuse of discretion. United States v. Leo, 512 F.3d 128, 133 (5th Cir. 2007), cert. denied, --- US ----, 129 S.Ct. 55, 172 L.Ed.2d 57 (2008). Where the jury hears adverse information, “ 'a new trial is required only if there is a substantial possibility that the adverse evidence materially affected the jury's verdict in light of the complete record.'' " Id. (citing United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998)). "We place great weight on the court's assessment of the prejudicial effect of the evidence, and prejudice may be relieved by curative instructions." United States v. Luke, 516 F.3d 316, 345 (5th Cir.), cert denied, --- U.S. ----, 129 S.Ct. 116, 172 L.Ed.2d 36 (2008).

3. Discussion

There is no doubt that the verdict presented to the jury had potentially damaging consequences. But the statement was a very brief part of one of several tapes played to the jury during the two-week trial, and it was played only once. Attorneys for the defendants noted that it "went by quickly" when discussing the response to the government's mistake. There was no further comment on the unfavorable part of the tape during the rest of the lengthy process. We believe that the court did not abuse its discretion by refusing to annul the proceedings.

VII. RESPONSIBLE QUESTIONS

A. Evaluation standard

The defendants allege several errors in connection with their convictions. The legal conclusions of the district court, including the interpretation of the Criminal Code, are reviewed de novo. See United States v. Galvan-Revuelto, 958 F.2d 66, 68 (5th Cir. 1992). This court reviews findings of fact made by the district court by applying the plain error guidelines. United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). "There is no plain error if the court's decision is persuasive in light of the record as a whole." United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citations omitted).

B. Elimination of National Security Controls

Ghassan argues that the court erred in ruling that their export violations violated "national security controls" under U.S.S.G. § 2M5.1(a) (2005), making his initial basic assault level 26 instead of 14.   Ghassan concedes in his reply brief that there is no authority to support his reading of § 2M5.1(a), but states that this is the court's must invoke the immunity rule in its interpretation of the Guidelines. See Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 3 L.Ed. 2d 199 (1958). " '[T]he touchstone of the leniency rule is legal ambiguity.' "  Burgess v. United States, --- U.S. ----, 128 S.Ct. 1572, 1580, 170 L.Ed.2d 478 (2008) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. Ct. 2247, 65 L.Ed.2d 205 (1980) (amendment in original)); see also United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).

Section 2M5.1 states that the predicate offense level for export control evasion is “26, if (A) national security controls or controls related to the proliferation of nuclear, biological, or chemical weapons or materials are evaded; or (B) the crime involved a financial transaction with a country that supports international terrorism.” USSG § 2M5.1(a) (emphasis added). Otherwise, the underlying offense is 14.  Id. This court has had no opportunity to consider whether export regulations directed against state sponsors of terrorism are "national protection measures" under 2M5.1(a).

In Executive Order no. 12,543, the president determined that Libya posed an "unusual and extraordinary threat to the national security and foreign policy of the United States" and ordered an embargo on the export of nearly all goods to Libya. 51 Fed Reg. 875 (Jan. 7, 1986). As a state sponsor of terrorism, Syria was also subject to export restrictions under the EAR. See, for example, 15 C.F.R. § 742.9 (2000). The President, using powers granted to him by Congress, has determined that it is a threat to national security to permit the unauthorized and unauthorized sale of certain goods, including computers, to anyone in those countries. Every court that has considered this issue has judged the avoidance of sanctions against state sponsors of terrorism as "national security checks." See e.g. United States v. McKeeve, 131 F.3d 1, 14 (1st Cir. 1997) (holding that export of computer equipment to Libya was evasion of national security controls); United States v. Shetterly, 971 F.2d 67, 76 (7th Cir. 1992) (holding that export of microwave amplifiers to West Germany was evasion of national security controls).

Ghassan suggests that the issue should be decided based on the nature of the goods being supplied, not the nature of the embargo. Considering exactly the same argument, the First Circuit ruled:

[S]ection 2M5.1(a)(1) applies to any violation involving a shipment (or proposed shipment) in violation of the embargo, regardless of whether the goods shipped are actually intended for harmless use. Appellant's counterargument seeks to substitute the trier of fact's judgment for that of the executive branch, which determined that the export of goods to Libya, with the exception of certain humanitarian aid, jeopardizes national security interests.

McKeeve, 131 F.3d at 14 (internal citations omitted). We agree with the First Circuit's analysis and believe that the export regulations directed against state sponsors of terrorism are "national protection measures" under 2M5.1(a). Because no ambiguity is found in § 2M5.1(a), the immunity rule does not apply to this case. Accordingly, the district court did not err in ruling that their export offenses violated "national security controls" under U.S.S.G. § 2M5.1(a).

C. Determination of loss under guidelines

Basman and Ghassan argue that the court erred by imposing a six-level increase for loss in calculating the advisory guideline range for criminal misrepresentation.

The guidelines provide for an increase in the offense level based on the damage suffered. USSG § 2B1.1(b)(1). The sentencing court has the right to establish the facts essential for sentencing by a preponderance of the evidence. Lewis, 476 F.3d at 389.   The district court's loss calculation “is a finding of fact upon which this court adjudicates in plain error.” United States v. Caldwell, 302 F.3d 399, 418 (5th Cir. 2002).

Each defendant's PSR recommended that the district court award a loss amount of $696,851, the amount by which the defendants undervalued the goods in eighty-nine shipments between August 1995 and October 2000. The defendants argued that this did not reflect any actual loss. The government agreed that the calculation was wrong, but argued that there was a loss to foreign governments, or lost taxes or duties, as a result of the defendants' scheme to declare a reduced value of exports.

Hazim's lawyer then offered a witness who would testify that the average price of the defendants' shipments was ten percent. Hazim limited the losses to the apparent acts alleged in the indictment and stated that the amount of the understatement was $307,702, which would have resulted in a loss of $30,770. Hazim and the government subsequently reached an "agreement that the loss would be greater than $30,000 but less than $70,000," resulting in a six-level enhancement under Section 2B1.1(b)(1)(D). Hazim maintained his complaint that there was no loss. Basman and Ghassan also claimed that there was no loss. After the court found that there was a loss, Basman and Ghassan agreed to the same stipulation regarding the amount of damages. Therefore, in accordance with the agreement reached by the defendants, they maintained their objection that there was no loss, but determined that if there was a loss, the amount would be in the range of $30,000 to $70,000 as provided in section 2B1.1 (b)(1)(D).

The court's finding that there was a loss was not clearly incorrect. Defendants admitted that the purpose of the low values ​​on the SEDs was to enable their customers to pay lower rates. Thus, there was evidence that the defendants' false statements about the SEDs caused foreign governments to miss out on tariff revenue. Although there was no evidence to support the calculation of the damages suffered, that issue was determined by the defendants. Accordingly, the court did not err in imposing a six-level increase for the loss.

D. Presumption of reasonableness in sentencing guidelines

Ghassan and Basman argue that the court misapplied the presumption of reasonableness to the Penal Code. The government claims that the defendants did not accept the complaint and that the errors are not clear.

The defendants did not raise this objection during the sentencing, so this assessment of the court is based on an obvious error. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir. 2008); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied --- US ----, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). This court will not reverse an action for plain error unless (1) the error exists, (2) it is obvious, and (3) it affects substantive rights. United States v. Gonzalez-Ramirez, 477 F.3d 310, 311 (5th Cir. 2007). "If these conditions are met, an appellate court may exercise its discretion to notice preempted error only if the error seriously impairs the fairness, integrity, or public reputation of the legal process." Identification card. at 311-12 (citations omitted) (alteration in original).

"[A] sentencing court does not enjoy the benefit of the legal presumption that the meaning of the Guidelines should be applied." Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed. 2d 203 (2007). Instead, the court must "make an individual assessment based on the facts presented." Gall v. United States, --- U.S. ----, 128 S.Ct. 586, 597, 169 L.Ed. 2d 445 (2007).

The court erred in applying the presumption of fairness to the Guidelines sentence, but we believe the resulting error was not plain error. The court was aware of defendants' arguments for a Guidelines sentence, but concluded that a Guidelines sentence would sufficiently satisfy all of the sentencing factors set forth in § 3553(a)(2). We do not exercise our discretion to record presumptive error because the district court's application of the presumption of fairness did not affect the fairness, integrity, or public reputation of the trial.

VIII. CONCLUSION

For the foregoing reasons, Ihsan's conviction is REVERSED and REVERSED. Otherwise, the judgment of the Court is AFFIRMED.

NOTES

1. For the sake of clarity, we refer to the defendants by their names in this opinion.

2. Count 1 charges the defendants with conspiracy to violate the EAR and LSR in connection with their export of computer goods to Libya and Syria. Counts 2 to 6 charged the defendants with significant export offenses involving computer products exported to Libya, and count 7 charged them with making a false statement to the SED about the true destination of goods exported to Libya. Counts 8 to 11 charged with violating licensing conditions for computer products exported to Syria; Counts 12 and 13 charged them with making false statements on the SEDs regarding those licensing applications and the value of exported goods; and count 14 charged them with laundering the proceeds of the export offense referred to in count 10. Count 15 charged the defendants with conspiracy to make false statements on SEDs about the value of goods exported to countries other than Libya and Syria, and counts 16 through 25 charged defendants for material misrepresentations associated with those SEDs.

3. Count 26 charges of conspiracy to trade SDT assets. Counts 27 to 36 are charged with significant violations of that prohibition. Counts 37 to 46 of the charge of conspiracy and substantial money laundering offenses relating to violations of the SDT.

4. Ihsan does not challenge any of his beliefs on the basis of propriety. Hazim and Ghassan were not convicted of substantive charges related to the shipments via Malta.

5. Basman was also convicted on count 7 of making a false statement of destination and value in the SED submitted for the shipment to the CIT on March 5, 1997. For the reasons stated above, there was sufficient evidence for a reasonable jury to conclude that Basman knew, contrary to his statement in the SED, that Libya was the final destination of the shipment.

6. Neither Ihsan nor Ghassan were convicted of substantive charges related to the shipments through Rome. Although Basman specifically deals with the shipment of computers via Malta in his opening remarks, he makes no such arguments regarding goods shipped via Rome. Basman's sole argument is a statement that "[t]he evidence was insufficient to warrant a conviction on any count." In his response, Basman claims for the first time that Khaled Bugrara, the government witness who testified that the shipments to Rome were for his brother Nureddin, did not testify that he had any contact with Basman. An appellant who does not sufficiently explain the issue in his opening letter will waive that issue. Fed. R.App. Page 28(a)(9)(A); United States v. Pompa, 434 F.3d 800, 806 AD. 4 (5th Cir. 2005). This issue should have been raised in Basman's opening order and was therefore omitted.

7. The defendants do not independently challenge the sufficiency of the evidence on Count 26 (conspiracy to trade SDT assets) or Counts 37-46 (money laundering). Because defendant's basis for challenging these counts rests entirely on the sufficiency of the evidence supporting SDT's other crimes, we believe there was also sufficient evidence to support these convictions.

8. Ihsan has not been charged with offenses related to SDT. Therefore, our analysis in this section focuses only on the number of export violations.

9. We take note of the allegations in the Tetrabal case. See United States v. Capua, 656 F.2d 1033, 1038 AD. 3 (5. ca. 1981). That charge reads in part:  “Prior to founding Tetrabal, defendant Ihsan Elashyi was employed by Infocom Corporation, ․ While Ihsan Elashyi was employed at Infocom, Infocom was also involved in the sale and export of computer hardware. mainly to customers in the Middle East. [Assistant Minister of Commerce issued TDO]. Assistant Secretary. thought it was Infocom, and . tetraball ․ were related persons. The said [TDO] was based on evidence that Infocom was sending and attempting to send goods to Libya and Syria without the authorization of the United States.

10. Basman and Ghassan also raised this argument on appeal, but acknowledged the problem in their response.

HAYNES, District Judge: