United States v. Bemka Corp. , 368 F. App'x 941 ( 2010 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    MAR 12, 2010
    No. 09-11217                    JOHN LEY
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 08-20365-CR-FAM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BEMKA CORP.,
    d.b.a. Bemka Corporation House
    of Caviar and Fine Foods,
    MAX MOGHADDAM,
    a.k.a. Bahmadi Moghaddam Mohammad,
    a.k.a. Mohammad Moghaddam,
    Defendants-Appellants.
    ________________________
    Appeals from the United States District Court
    for the Southern District of Florida
    _________________________
    (March 12, 2010)
    Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.
    PER CURIAM:
    Appellants Bemka Corporation (“Bemka”) and Max Moghaddam (together,
    “the defendants”) appeal their convictions for conspiracy to export paddlefish roe
    without required permits, in violation of 
    18 U.S.C. § 371
    , false labeling of export
    shipments, in violation of 
    16 U.S.C. §§ 3372
    (d)(1),(2), and attempting to export an
    endangered species without a permit, in violation of 
    16 U.S.C. § 1538
    (c)(1). The
    defendants argue the district court erred in denying their motion to suppress and
    that there was insufficient evidence to find Moghaddam guilty of all three counts
    of the indictment. Having found no error, we affirm.
    I. Motion to Suppress
    On appeal, the defendants argue that there was insufficient evidence to
    support probable cause to issue a search warrant for Bemka’s headquarters. The
    defendants assert that the information in the June 2007 warrant affidavit relating to
    the export and sale of caviar in 2004 and 2005 was stale. They argue that the
    allegations in the affidavit did not demonstrate that they knowingly violated the
    law and contest information in the affidavit concerning Bemka’s abandonment of a
    permit application to export American paddlefish roe. They also argue that the
    search exceeded the bounds set by the search warrant and that the warrant was over
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    broad.
    “Because rulings on motions to suppress involve mixed questions of fact and
    law, we review the district court’s factual findings for clear error, and its
    application of the law to the facts de novo.” United States v. Bervaldi, 
    226 F.3d 1256
    , 1262 (11th Cir. 2000). “[A]ll facts are construed in the light most favorable
    to the prevailing party below.” 
    Id.
     “[T]he duty of a reviewing court is simply to
    ensure that the magistrate had a ‘substantial basis for concluding’ that probable
    cause existed.” Illinois v. Gates, 
    462 U.S. 213
    , 238–39, 
    103 S. Ct. 2317
    , 2332, 
    76 L. Ed. 2d 527
     (1983) (alteration omitted).
    Probable cause and staleness
    Under the Fourth Amendment, probable cause to support a search warrant
    exists when the totality of the circumstances allows the conclusion that “there is a
    fair probability that contraband or evidence of a crime will be found in a particular
    place.” Gates, 
    462 U.S. at 238
    , 
    103 S. Ct. at 2332
    . Our staleness doctrine
    “requires that the information supporting the government’s application for a
    warrant must show that probable cause exists at the time the warrant issues.”
    Bervaldi, 
    226 F.3d at 1264
    . When determining staleness, courts should consider
    the length of time, “nature of the suspected crime (discrete crimes or ongoing
    conspiracy), habits of the accused, character of the items sought, and nature and
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    function of the premises to be searched.” 
    Id. at 1265
     (internal quotation marks
    omitted). “[W]here an affidavit recites a mere isolated violation then it is not
    unreasonable to believe that probable cause quickly dwindles with the passage of
    time.” 
    Id.
     (internal quotation marks omitted). Conversely, “if an affidavit recites
    activity indicating protracted or continuous conduct, time is of less significance.”
    
    Id.
     (internal quotation marks omitted). Stale information can establish probable
    cause if “the government’s affidavit updates, substantiates, or corroborates the stale
    material.” United States v. Jimenez, 
    224 F.3d 1243
    , 1249 (11th Cir. 2000)
    (internal quotation marks omitted).
    Under the totality of the circumstances test, the magistrate judge reasonably
    found probable cause based on the allegations in the warrant affidavit. See Gates,
    
    462 U.S. at 238
    , 
    103 S. Ct. at 2332
    . The magistrate judge had a substantial basis to
    determine that the defendants were probably engaged in the illegal exportation of
    protected fish roe and that evidence of this crime would be found at Bemka’s
    headquarters. See 
    id.
     The court also did not err by finding that the information in
    the affidavit was not stale because the affidavit also presented evidence of more
    recent wrongdoing by the defendants.
    Particularity and exceeding the scope of the search warrant
    The Fourth Amendment requires that a warrant “particularly describ[e] the
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    place to be searched, and the persons or things to be seized.” U.S. Const. Amend.
    IV. “A warrant which fails to sufficiently particularize the place to be searched or
    the things to be seized is unconstitutionally over broad.” United States v. Travers,
    
    233 F.3d 1327
    , 1329 (11th Cir. 2000). Additionally, “[i]f a search exceeds the
    scope of the terms of a warrant, any subsequent seizure is unconstitutional.”
    United States v. Jackson, 
    120 F.3d 1226
    , 1228 (11th Cir. 1997). “However, a
    search may be extensive as reasonably necessary as required to locate the items
    described in the warrant[.]” 
    Id.
    We conclude that the warrant stated with particularity the items to be seized
    and the place to be searched. We also disagree with the defendants’ assertion that
    the officers exceeded the scope of the search warrant. The defendants raise this
    argument for the first time on appeal; therefore, we review only for plain error.
    See United States v. Turner, 
    474 F.3d 1265
    , 1276 (11th Cir. 2007). To prove plain
    error, the defendants must show (1) error, (2) that was plain, and (3) that affects
    substantial rights. 
    Id.
     The defendants have failed to show that the district court
    plainly erred. Accordingly, we affirm the denial of the defendants’ motion to
    suppress.
    II. Sufficiency of the Evidence
    On appeal, the defendants argue that the district court erred by denying
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    Moghaddam’s motion for acquittal as to the conspiracy charged in Count One
    because the government did not present evidence, direct or circumstantial, that he
    knowingly and willfully conspired with anyone to export protected paddlefish eggs
    without the required permits. The defendants also argue that the district court erred
    by denying Moghaddam’s motion for acquittal as to false labeling of export
    shipments, as charged in Count Two, and attempt to export paddlefish eggs
    without a permit, as charged in Count Three, because the government presented no
    evidence that Moghaddam knowingly violated the law. The defendants argue that
    the evidence, at best, demonstrated that Moghaddam accidentally mislabeled the
    caviar at issue.
    We review de novo whether sufficient evidence supports a conviction,
    inquiring as to whether, after viewing the evidence in the light most favorable to
    the government, any reasonable jury could have found the essential elements of a
    crime beyond a reasonable doubt. United States v. Charles, 
    313 F.3d 1278
    , 1284
    (11th Cir. 2002). All reasonable inferences are drawn, and all facts are viewed, in
    the government’s favor. United States v. Hansen, 
    262 F.3d 1217
    , 1236 (11th Cir.
    2001). “At least where some corroborative evidence of guilt exists for the charged
    offense . . . and the defendant takes the stand in his own defense, the defendant’s
    testimony, denying guilt, may establish, by itself, elements of the offense.” United
    6
    States v. Brown, 
    53 F.3d 312
    , 314–15 (11th Cir. 1995).
    To convict Moghaddam under 
    18 U.S.C. § 371
    , the government had to prove
    beyond a reasonable doubt that Moghaddam (1) knowingly and voluntarily entered
    into an agreement with another person to export paddlefish without the required
    permits and (2) the agreement was manifested by an overt act. 
    18 U.S.C. § 371
    ;
    see United States v. Lafaurie, 
    833 F.2d 1468
    , 1470 (11th Cir. 1987) (holding that a
    conspiracy is an agreement to commit an illegal act, into which the defendant
    knowingly and voluntary enters, and which is manifested by an overt act). In order
    to convict Moghaddam under 
    16 U.S.C. §§ 3372
    (d)(1), (2), the government had to
    prove beyond a reasonable doubt that he had made or submitted “any false record,
    account, or label for, or any false identification of, any fish, wildlife, or plant
    which has been, or is intended to be (1) imported, exported, transported, sold,
    purchased, or received from any foreign country; or (2) transported in interstate or
    foreign commerce.” 
    16 U.S.C. §§ 3372
    (d)(1), (2). To convict Moghaddam under
    
    16 U.S.C. § 1538
    (c)(1), the government had to prove beyond a reasonable doubt
    that he had attempted, without a permit, to “engage in any trade” or “possess any
    specimens” of a species protected under the Convention on International Trade in
    Endangered Species of Wild Fauna and Flora (“CITES”). 
    16 U.S.C. § 1538
    (c)(1).
    Moghaddam’s knowledge and participation in the conspiracy could be
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    inferred from the evidence in the record. There was sufficient evidence for a
    reasonable jury to find that the government had proven beyond a reasonable doubt
    that Moghaddam had conspired with Inés Fécherolle, the manager of his Belgian
    company, to illegally export paddlefish roe without proper permits.
    A reasonable jury also could have concluded that Moghaddam mislabeled
    shipments of paddlefish roe as bowfin roe (Count 2), and attempted to export
    bowfin roe without proper permits (Count 3). Based upon the contradictory
    statements made by Moghaddam to FWS agents, evidence that someone at Bemka
    created a false shipping log entry, and evidence that someone attempted to relabel
    paddlefish caviar pail lids as bowfin, the jury could reasonably infer that
    Moghaddam knowingly violated the law. Therefore, we affirm the defendants’
    convictions.
    AFFIRMED.
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