United States v. Reyes, Randy ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDY REYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 189--Charles N. Clevert, Judge.
Argued JANUARY 25, 2001--Decided November 7, 2001
Before COFFEY, RIPPLE and DIANE P. WOOD,
Circuit Judges.
COFFEY, Circuit Judge. On October 22,
1999, a jury convicted Defendant-
Appellant Randy Reyes of crimes relating
to the illegal exportation of military
aircraft component parts destined for
Iran. Reyes was vice president of sales
and marketing for Siraj International,
Inc., a broker of commercial and military
aircraft component parts located in Oak
Creek, Wisconsin. Reyes was found guilty
of violating the Arms Export Control Act,
22 U.S.C. sec. 2778, and the
International Emergency Economic Powers
Act, 50 U.S.C. sec.sec. 1701-06, and he
was sentenced to serve two concurrent
prison terms of 41 months each followed
by two concurrent two-year terms of
supervised release. On appeal, Reyes
challenges the conduct of prosecutors,
the alleged inconsistency of the jury’s
verdicts, the sufficiency of the
evidence, and the calculation of his
sentence. We affirm.
I. BACKGROUND
A. The Arms Export Control Act and
International Emergency Economic Powers
Act
Section 38 of the Arms Export Control
Act (AECA), 22 U.S.C. sec. 2778, and its
attendant regulations, the International
Traffic in Arms Regulations, 22 C.F.R.
sec. 120-30, authorize the President of
the United States ("President") to
regulate and control the exportation of
military and defense products through a
licensing system administered by the
State Department’s Office of Defense
Trade Controls. A license must be
obtained before the export of any
products or items designated as "defense
articles" on the United States Munitions
List. 22 C.F.R. sec. 121.1. Category
VIII(h) of the Munitions List requires
State Department licenses for the
exportation of "components, parts,
accessories, attachments and associated
equipment" designed or modified for use
on military aircraft. 22 C.F.R. sec.
121.1. Federal regulations also state
that it is the policy of the United
States to deny requests for licenses to
export defense articles at any given time
destined for certain specified countries,
including Iran. 22 C.F.R. sec. 126.1(a).
On May 6, 1995, the President issued
Executive Order 12959 pursuant to
authority granted by the International
Emergency Economic Powers Act (IEEPA), 50
U.S.C. sec.sec. 1701-1706./1 This order
and its implementing regulations
generally prohibit the exportation of any
goods, technology or services from the
United States to Iran without express
authorization from the Office of Foreign
Assets Control, a division of the
Treasury Department. 31 C.F.R. sec.sec.
560.204, 560.501. This prohibition
includes the exportation of any goods "to
any person in a third country undertaken
with knowledge or reason to know that
such goods . . . are intended
specifically for supply, transshipment,
or reexportation, directly or indirectly,
to Iran or the Government of Iran." 31
C.F.R. sec. 560.204(a).
B. Factual Background
The defendant Randy Reyes was employed
by Siraj International ("Siraj"), a
middleman/broker of aviation component
parts--commercial and military, from
October of 1996 until the spring of 1998.
The principal actors at Siraj during the
relevant time period were Reyes, the
owner and president Jami Choudhury, and
office manager Debra Martell. When an
international customer placed an order
with Siraj, Reyes or Choudhury, depending
on who had responsibility for the
particular client, was responsible
forassuring that all exports complied
with the AECA and IEEPA./2 Shortly
after Reyes was hired by Siraj in
October, 1996, he made contact with a
customer named Texam Holding, Ltd.,
located in Geneva, Switzerland, and
operated by Mehrad Banimostafavi (a/k/a
Michael Bani)./3 Reyes maintained Texam
as his own client and handled virtually
all transactions between Siraj and Texam.
At approximately the same time that
Reyes made contact with Texam, another
Milwaukee-area aircraft parts broker
named International Aircraft Support
Group (IASG) likewise began receiving
orders from Texam. In January of 1997,
Tina Bembenek (co-owner of IASG) received
a purchase order from Texam requesting
engine parts for an F-111 military
aircraft, which in turn served to raise
Bembenek’s suspicion, for she was
cognizant of the fact that only Iran and
Australia flew the F-111. Bembenek called
Bani (Texam) and inquired as to the end-
user of the F-111 parts. According to
Bembenek’s testimony at trial, Bani told
her that the parts were destined for
Singapore. When confronted with
Bembenek’s statement that only Iran and
Australia fly the F-111, Bani replied,
"Let’s send them to Australia."
In February, 1997, Bembenek was in
Switzerland on unrelated business and
arranged a meeting with Bani in Geneva.
During this meeting Bani disclosed to
Bembenek that he was an Iranian citizen
living in Switzerland engaged in
procuring military aircraft parts for
Iran and at this time he provided
Bembenek with a list of American
companies with whom he did business. The
list included Siraj International.
Upon Bembenek’s return to the United
States, she advised the U.S. Customs
Service ("Customs") that Texam was acting
as a front for Iran’s procurement of
military aircraft components. Thereafter
Customs initiated an investigation into
Texam and Bembenek agreed to assist in
the investigation with the placing and
receiving of telephone calls (recorded)
with Bani and Reyes. In a recorded phone
call to Reyes made on May 29, 1997,
Bembenek informed him that she had
received correspondence from Bani stating
that Texam intended to ship military
aircraft parts purchased from her company
(IASG) to Iran. Reyes responded, "Oh-oh,
double no-no," indicating that he knew
that sales of military equipment to Iran
were prohibited by federal law. Reyes
further displayed his knowledge of the
law as he informed Bembenek at that time
that all of his Siraj sale documents
included a written stipulation that parts
sold to Texam were destined for Texam’s
stock, and he suggested to Bembenek that
she might make use of the same
"stipulation" to protect herself, stating
"the only thing I can suggest is . . .
stipulate on your orders that this is
going to your stock there in Geneva. . .
."
Approximately three weeks after this
conversation with Bembenek, on June 16,
1997, Reyes shipped a number of "junction
covers" and fuel flometer brackets to
Texam in Geneva, Switzerland without
first having obtained the required
licensing permits from the State
Department. These aircraft parts were
contained on the Munitions List since
they were designed for exclusive use on
TF-30 military aircraft engines, which
are used on F-111, A-7, and F-14 military
aircraft. This shipment from Milwaukee to
Switzerland was seized by U.S. Customs
officials at JFK airport on June 20,
1997. About the same time, Milwaukee U.S.
Customs agents executed a search warrant
at Siraj’s Oak Creek, Wisconsin offices
and seized a number of documents relating
to Siraj’s business dealings with Texam.
The Customs Agents also found numerous
documents in Reyes’ office at Siraj,
including but not limited to
pamphletsdetailing the State Department’s
registration and licensing process
containing Reyes’ handwritten notes, a
partially completed draft of Siraj’s
registrant application containing Reyes’
handwriting, and a copy of the Munitions
List regulations with handwritten stars
and checkmarks next to Category VIII
(aircraft) and Category VIII(h) (aircraft
component parts)./4 Contemporaneous with
the Siraj raid, Special Customs Agent
John Heyer interviewed Reyes while on the
premises, and during the interview Reyes
admitted that Texam was his client, that
he was aware that the shipment of
aircraft parts destined to Iran was
prohibited by federal law, and when
questioned, further stated that Bani had
informed him that the ultimate user of
the airplane parts was either the Swiss
Red Cross or Texam’s stock. Contrary to
his recorded telephone conversation with
Bembenek of May 29, 1997, Reyes falsely
stated to Heyer that he had never heard
from any source that Texam supplied
aircraft parts to Iran, and that he would
not have exported any aircraft parts to
Texam had he any reason to suspect that
the parts were destined for Iran.
Upon the completion of the
investigation, a grand jury on October 6,
1998 returned a five-count indictment
against Reyes, Choudhury, Bani, and Siraj
International, Inc. Count 1 charged all
four defendants (the three individuals
and the company) with conspiracy to
violate the AECA and IEEPA by exporting
Munitions List aircraft component parts
from the United States destined for Iran
without the necessary government
licenses, contrary to 18 U.S.C. sec. 371.
The conspiracy charge alleged three
separate illegal shipments from Siraj to
Texam in 1997, including the previously
referred to shipment of June 16, 1997.
Count 2 charged the same four defendants
with willful violation of the AECA in
connection with a January, 1997 shipment
of military aircraft component parts from
Siraj to Texam. Count 3 charged the four
defendants with willful violation of the
IEEPA in connection with a May, 1997
shipment from Siraj to Texam, and Counts
4 and 5 charged all the defendants with
willful violations of the AECA and IEEPA
in connection with the June 16, 1997
shipment from Siraj to Texam.
In March 1999, five months after return
of the indictment and approximately nine
months after Reyes voluntarily left
Siraj, Ann Chiapetta purchased the assets
of Siraj from Jami Choudhury and formed a
new aircraft parts brokering business
known as Avitek. Martell continued on as
an employee of the new company until
September 27, 1999, when Chiapetta
discharged her./5
Two weeks prior to the commencement of
the trial, Choudhury pled guilty to a
charge of making a false statement to
Agent Heyer on June 15, 1998, in
violation of 18 U.S.C. sec. 1001,
concerning his lack of knowledge that the
aircraft parts Siraj sold to Texam were
destined for Iran. As part of its plea
agreement with Choudhury, the government
agreed to dismiss all charges in the
indictment against Choudhury if he agreed
to cooperate with the government in any
subsequent investigation and testify
truthfully in any trials relating to the
subject matter of the indictment. Shortly
before trial, the corporation (Siraj)
changed its plea from one of not guilty
to guilty to Counts 2 through 5 and Count
1 was dismissed.
Prosecutors met with Martell on October
4, 1999, as part of their preparation for
Reyes’ trial, to review the Siraj
business documents the government
intended to introduce in evidence. During
that meeting, Martell volunteered
information to the prosecutors that she
had recently been discharged from Avitek,
as well as making some "vague
allegations" concerning alleged financial
improprieties on the part of Choudhury
and Chiapetta relating to the sale of
Siraj’s assets. The government did not
disclose the information concerning
Martell’s vague allegations and
suspicions to Reyes prior to trial./6
At Reyes’ trial, Martell identified
Siraj business documents, and she also
gave testimony about the office
procedures for telephone calls received
from Texam (Reyes was the only employee
authorized to speak to Bani), and that
all faxes received from Texam were
delivered to Reyes only, pursuant to his
direction. With regard to her
professional relationship with Reyes,
Martell stated that she and Reyes on more
than one occasion had disagreements
regarding office procedures but in
response to a question she also
testified, "I wouldn’t go that far to say
that I didn’t like him." Martell, when
questioned about her termination from
Avitek (formerly Siraj), stated that she
did not "see eye to eye" with the new
owner Ann Chiapetta.
On October 22, 1999, the jury returned
guilty verdicts against Reyes on Counts 4
and 5 (violations of the AECA and IEEPA
concerning the June 16, 1997 shipment),
and acquitted Reyes on Counts 1, 2 and 3.
After trial, Reyes filed a motion for
judgment of acquittal, alleging
insufficient evidence on Counts 4 and 5,
and it was denied.
During the short time frame between
Reyes’ sentencing and the time he was to
report to the Bureau of Prisons for
assignment to an institution for
confinement, he learned of Martell’s
allegations made to government
agentsconcerning her suspicions of
possible financial wrong-doing by
Choudhury and Chiapetta in connection
with the sale of Siraj. Reyes, armed with
the newly disclosed statement of
Martell’s suspicions and vague
allegations, filed a motion to stay the
execution of his sentence pending the
filing of a motion for a new trial or a
petition for habeas corpus. He argued
that the government should have disclosed
the fact of Martell’s discharge from
Avitek and her vague suspicions of
misconduct by Choudhury and Chiapetta,
alleging that these facts would have
provided Reyes with exculpatory evidence
and/or an avenue for the impeachment of
Martell’s credibility at trial. The trial
court denied his motion for a stay of
sentence and again ordered him to report
to the Bureau of Prisons. Reyes appeals.
II. ISSUES PRESENTED
Reyes raises four issues on appeal. He
alleges that: (1) the government’s
alleged failure to disclose any
information concerning Martell’s
termination from Avitek and her
suspicions of financial wrong-doing on
the part of Choudhury and Chiapetta
denied him exculpatory evidence or
possible impeachment evidence in
violation of his Fifth Amendment right to
due process; (2) the guilty verdicts on
Counts 4 and 5 should be reversed as
inconsistent with his acquittal on Counts
1, 2 and 3; (3) the evidence to convict
him on Counts 4 and 5 was insufficient;
and (4) the district court committed
error in sentencing him to a base level
of 22.
III. DISCUSSION
A. The Government’s Alleged Failure to
Disclose Information
Reyes contends that he is entitled to a
new trial because the prosecution was
obligated to disclose that: (1) Debra
Martell had informed prosecutors of her
suspicions of financial improprieties on
the part of Choudhury and Chiapetta
related to the sale of Siraj; and (2)
Debra Martell had been discharged from
Avitek. Reyes argues that the government
was required to disclose this information
to the defense pursuant to Brady v.
Maryland, 373 U.S. 83 (1963); see also
United States v. Bagley, 473 U.S. 667(1985); Kyles v. Whitley, 514 U.S. 419(1995).
In Brady, the Supreme Court held that
"the suppression by the prosecution of
evidence favorable to an accused upon
request violates due process where the
evidence is material either to guilt or
to punishment, irrespective of the good
faith of the prosecution." Brady, 373
U.S. at 87. The prosecution’s obligation
to disclose information extends to both
exculpatory evidence and facts material
to the impeachment of prosecution
witnesses, and attaches even in the
absence of a specific request by the
defendant. United States v. Agurs, 427
U.S. 97, 110-11 (1976); United States v.
Allain, 671 F.2d 248, 255 (7th Cir.
1982). Before the court can grant a
motion for a new trial as a result of an
alleged Brady violation, the moving party
must establish that: (1) the prosecution
suppressed evidence; (2) the evidence al
legedly suppressed was favorable to the
defense; and (3) the evidence was
material to an issue at trial. Brady, 373
U.S. at 87; United States v. Walton, 217
F.3d 443, 450 (7th Cir. 2000).
Evidence is material to the defense if
there is a reasonable probability that,
had the evidence been disclosed to the
defense, the result of the proceeding
would have been different. A "reasonable
probability" is that sufficient to
undermine confidence in the outcome. The
materiality standard is not met by "the
mere possibility that an item of
undisclosed information might have helped
the defense, or might have affected the
outcome of the trial . . . . Thus, Brady
does not require a prosecutor to divulge
every scintilla of evidence that might
conceivably inure to a defendant’s
benefit.
Lieberman v. Washington, 128 F.3d 1085,
1092 (7th Cir. 1997) (citations omitted,
emphasis added), quoting United States v.
Hamilton, 107 F.3d 499, 509 (7th Cir.
1997).
Reyes, in a buckshot approach, attempts
to gain a new trial by trying to link the
two instances of alleged non-disclosure
to the elements of Brady by speculating
that had he known these facts prior to
trial, he would have been able to cross-
examine Martell more effectively and
impeach her credibility as a witness by
(1) supposedly being able to demonstrate
that Martell’s termination provided her
with some type of motivation to retaliate
against Reyes (despite the fact that
Reyes had left the company approximately
fifteen months before Martell’s
discharge); (2) establishing that
Martell’s accusations against Choudhury
were made in retaliation for her
discharge by Chiapetta; and (3)
usingMartell’s accusations against
Choudhury to, in Reyes’ words, "further
explore the relationship between
Choudhury and his employees."
Reyes’ Brady claim concerning Martell’s
discharge fails because the information
was not suppressed by the government, and
in fact Martell specifically testified
during trial about her termination.
Throughout his appellate brief, Reyes
insists that he had no way of knowing
that Martell’s employment had been
terminated, but it is evident from a
reading of the record that had Reyes paid
closer attention during the trial (or
scrutinized the transcript more closely
prior to filing his appeal), he would
have been aware of the following
questions asked by the prosecution at
trial and Martell’s answers:
Q: When was the last day that you worked
for Avetech [sic]?
A: The 27th of September.
Q: And why is it that you no longer work
for Avitech [sic]?
A: I didn’t get along with the new owner.
She fired me. We didn’t see eye to eye.
I asked too many questions. (emphasis
added)
Transcript p. 606.
"Brady does not require a prosecutor to
divulge every scintilla of evidence that
might conceivably inure to a defendant’s
benefit." Lieberman, 128 F.3d at 1092.
Furthermore, "this court has made clear
that ’there is nothing in Brady or Agurs
to require that such disclosures be made
before trial.’" Allain, 671 F.2d at 255(emphasis added). Due process is
satisfied as long as the ultimate (albeit
delayed) disclosure of Martell’s
termination was made "before it is too
late for the defendant to make use of any
benefits of the evidence." Id., quoting
United States v. Ziperstein, 601 F.2d
281, 291 (7th Cir. 1979), cert. denied,
444 U.S. 1031 (1980). We are convinced
that Reyes’ Brady claim is without merit
in as much as the very information he
claims was suppressed (Martell’s
termination), is reflected in the record
at trial. As a result, Reyes had ample
opportunity to cross-examine Martell
about any information regarding her
termination from Avitek, but he failed to
do so.
We turn now to Reyes’ allegation that he
was deprived of "favorable" information
by the government’s failure to disclose
Martell’s suspicions of vague financial
misdealings between Chiapetta and
Choudhury at the time of the Siraj-Avitek
sale. In order for non-disclosed
information to be considered "favorable"
to the defense (the second element of the
Brady test), the defendant must establish
that the evidence is either exculpatory
in nature or tends to impeach a
prosecution witness. Kyles, 514 U.S. at
433; Agurs, 427 U.S. at 110. With regard
to Reyes’ argument as to the impeachment
value of the alleged suppressed
information, we note that Reyes had
absolutely nothing to do with the
decision to discharge Martell, much less
anything to do with the sale of Siraj’s
assets to Chiapetta, because he left his
employment with Siraj some nine months
prior to the sale in March, 1999, and 15
months prior to Martell’s discharge in
September, 1999. Furthermore, Martell
never alleged any misconduct on the part
of Reyes and she testified that she
harbored no hard feelings toward him.
There is no link between Reyes and
Martell’s termination from Avitek, and we
are of the opinion that there is no basis
in this record to conclude that Martell’s
testimony was motivated by even a
scintilla of ill will toward Reyes. The
impeachment value of the alleged
suppressed information is not supported
by the record and Reyes’ claim is without
merit.
Turning to the supposed exculpatory
value of Martell’s suspicions, Reyes
speculates that had he been aware of her
accusations, his cross-examination of
Martell would have revealed significantly
more about the manner in which Choudhury
ran Siraj (including his supposed
dealings with Texam) and the relationship
between Choudhury and his employees.
Reyes’ argument is unconvincing because
he worked with both Choudhury and Martell
at Siraj for approximately 15 months, and
he played an integral role at Siraj and
was well aware of the business operations
and business climate at the company. We
thus fail to understand how Martell’s
vague allegations and suspicions could
have provided Reyes with any knowledge he
did not already possess concerning
Choudhury’s relationship with his
employees, the manner in which Choudhury
ran Siraj or his dealings with Texam, and
other material aspects of the business
climate at Siraj during all relevant
times. If Choudhury or Martell had
knowledge of facts potentially helpful to
Reyes, Reyes was free to subpoena either
or both of them before or during trial
and call them as hostile witnesses and he
failed to do so. Furthermore, exculpatory
information is that which is "supportive
of a claim of innocence" to the crimes
charged. Agurs, 427 U.S. at 107.
Martell’s suspicions and allegations had
nothing to do with proof of Reyes’
criminal conduct as charged in the
indictment, and thus we are convinced
that the alleged suppressed information
had no exculpatory value.
Our conclusion that the alleged
suppressed information was not favorable
to the defense (i.e., had no impeachment
or exculpatory value) precludes any claim
that disclosure (or earlier disclosure)
of the information would have impacted
the result of the trial. See Bagley, 473
U.S. at 682; Kyles, 514 U.S. at 433-34.
Reyes’ broad challenge to his conviction
on the basis of the prosecution’s alleged
failure to comply with Brady is
frivolous.
B. Inconsistent Verdicts
Reyes next argues that his convictions
on Counts 4 and 5 of the indictment
should be reversed because they are
inconsistent with his acquittal on Counts
1 through 3. Reyes contends that: (1)
because he was found not guilty of the
conspiracy charge (Count 1), the jury
must have also found that the objectives
of the conspiracy (the AECA and IEEPA
violations) did not occur; and (2)
because the jury acquitted on Counts 2
and 3 (the substantive AECA and IEEPA
violations in connection with the January
and May shipments to Texam), the jury was
not convinced beyond a reasonable doubt
that Reyes participated as an aider or
abettor in the AECA and IEEPA violations
related to the January and May shipments.
Inconsistent verdicts in a criminal case
are not a basis for reversal of a
conviction or the granting of a new
trial. United States v. Powell, 469 U.S.
57 (1984); United States v. Muthana, 60
F.3d 1217, 1223 (7th Cir. 1995); United
States v. Grier, 866 F.2d 908, 928 (7th
Cir. 1989); United States v. Sims, 144
F.3d 1082, 1084 (7th Cir. 1998); United
States v. Castillo, 148 F.3d 770, 774
(7th Cir. 1998). "When a jury returns
inconsistent verdicts . . . it may do so
for reasons other than a determination of
innocence, such as mistake, compromise,
or lenity," United States v. Nobles, 69
F.3d 172, 189 (7th Cir. 1995), and "a
criminal defendant already is afforded
protection against jury irrationality or
error by the independent review of the
sufficiency of the evidence undertaken by
the trial and appellate courts." Powell,
469 U.S. at 66-67. Accordingly, we see no
merit to Reyes’ challenge to the
supposedly inconsistent verdicts.
C.Sufficiency of the Evidence
Reyes next claims that the evidence
presented at trial was insufficient to
support his conviction on Counts 4 and 5
of the indictment. A challenge to the
sufficiency of the evidence to support a
conviction poses a "nearly insurmountable
burden." United States v. Frazier, 213
F.3d 409, 415 (7th Cir. 2000). When
reviewing a sufficiency of the evidence
claim, "it is not our function to reweigh
the evidence nor substitute our judgment
for the decision of the jury," and we
view "the evidence in the light most
favorable to the prosecution, making all
reasonable inferences in its favor, and
will affirm the conviction so long as any
rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt." United States
v. Neville, 82 F.3d 750, 757 (7th Cir.
1996). This being a criminal case, we
will reverse a conviction "only when the
record is devoid of any evidence,
regardless of how it is weighed, from
which a jury could find guilt beyond a
reasonable doubt." United States v.
Garcia, 35 F.3d 1125, 1128 (7th Cir.
1994) (emphasis added).
1. Conviction on Count 4--Violation of
the AECA
Count 4 charged that on or about June
16, 1997, Reyes "did knowingly and
willfully export and attempt to export
from the United States defense articles,
that is, aircraft component parts which
were designated as defense articles on
the United States Munitions List, without
having first obtained from the Department
of State a license for such export . . .
all in violation of Title 22, United
States Code, Section 2778(b)(2) and
(c)[.]" Conviction on this count required
that the government prove beyond a
reasonable doubt that Reyes willfully
exported or attempted to export an item
on the United States Munitions List
without having first obtained a license.
United States v. Beck, 615 F.2d 441, 449-
50 (7th Cir. 1980).
At trial, the prosecution submitted a
mountain of evidence to establish that
Reyes was aware of his legal duty not to
export Munitions List articles to Iran or
any foreign country without a license.
This evidence included expert testimony
establishing that the aircraft parts
Reyes attempted to export were designed
exclusively for use on a TF-30 military
aircraft engine (which is used on F-111
and F-14 military aircraft), as well as
many documents (several with Reyes’
handwritten notes on them) seized from
Reyes’ private office, that helped to
establish Reyes’ knowledge of the
Munitions List and the law restricting
exports of items on that list./7 The
evidence also included the tape-recorded
phone conversation between Reyes and
Bembenek in which Reyes explicitly
acknowledges both the illegality of
shipping to Iran without a license and
his awareness of the fact that Texam was
shipping the parts it ordered to Iran.
This combination of direct and
circumstantial evidence was overwhelming
and obviously more than sufficient to
convict Reyes of Count 4 of the
indictment. "Circumstantial evidence is
of equal probative value to direct
evidence," United States v. Vega, 860
F.2d 779, 793 (7th Cir. 1988), and "in
some cases it is even more reliable."
United States v. Ranum, 96 F.3d 1020,
1026 (7th Cir. 1996). "Not only is the
use of circumstantial evidence
permissible, but circumstantial evidence
’may be the sole support for a conviction.’"
Vega, 860 F.2d at 793-94.
All of the material seized from Reyes’
office, combined with the recorded
conversation with Bembenek, and Agent
Heyer’s testimony that during his
interview Reyes (1) admitted knowing that
the shipment of aircraft parts destined
for Iran was prohibited by federal law;
and (2) acknowledged that he was aware
that Siraj had registered with the State
Department for eligibility to obtain
Munitions List export licenses, provided
more than a sufficient basis for the jury
to conclude that the defendant was aware
that he had to ascertain whether an
aircraft component part was on the
Munitions List. The evidence also
overwhelmingly demonstrated his awareness
of the requirement to obtain a license
prior to exporting any aircraft part on
the Munitions List. Reyes’ obvious
disregard for his known legal duties in
attempting to export items on the
Munitions List without a license,
provided more than sufficient grounds for
the jury’s finding of a willful violation
of the AECA. We thus hold that the
evidence was sufficient to convict the
defendant of Count 4 of the indictment.
2. Conviction on Count 5--Violation of
the IEEPA
Count 5 of the indictment charged that
on or about June 16, 1997, Reyes "did
knowingly and willfully export and
attempt to export from the United States
to Iran through Geneva, Switzerland,
certain goods, namely aircraft component
parts . . . all in violation of Title 50,
United States Code, Section 1705(b), 18
U.S.C. sec. 2, 31 C.F.R. sec.sec.
560.203, 560.204, and Executive Orders
12957 and 12959." The government was
required to establish that Reyes
willfully attempted to export goods to
another country, knowing the ultimate
destination was an embargoed country,
without a license. 50 U.S.C. sec.
1705(b); 31 C.F.R. sec. 560.203-204,
issued pursuant to Executive Order 12959,
sec. 1(b) and 1(g), 60 Fed. Reg. 24757,
15 C.F.R. sec. 785.4(b)(2), 15 C.F.R.
sec. 787.5(b).
Reyes contends that the government
failed to present sufficient evidence to
establish his knowledge that the June 16,
1997 shipment to Texam was destined for
Iran, but his argument ignores the
substantial evidence presented by the
prosecution. During Agent Heyer’s
interview with Reyes on June 19, 1997, he
acknowledged that he was aware of the
illegality of shipping parts to a
customer who in turn forwarded them to an
Iranian destination, and he falsely
stated that he had never been told by
anyone, and had no reason to suspect,
that shipments sent to Texam Holding were
subsequently being forwarded to Iran. The
government also introduced a document
faxed to Siraj on March 3, 1997, from
Texam’s Swiss bank, bearing the notation
"F/A Iran Aircraft Industries, Tehran,
Texam Holding Ltd., Geneva," and
referencing Texam’s payment for a
shipment to Texam. Another damaging piece
of evidence introduced against the
defendant was a fax from Texam to its
Swiss bank (and on which Siraj was
copied) dated May 19, 1997, containing a
"re" line reading "Air shipment from
Geneva/ Switzerland to Tehran/Iran." The
government also offered evidence through
the use of expert computer forensics tes
timony demonstrating that the fax machine
at Siraj received two faxes in December,
1996, (again from Texam to its Swiss bank
and on which Siraj had been copied)
containing a "re" line stating "Air
shipment from Geneva/Switzerland to
Tehran/Iran." Further, Debra Martell
testified that Texam was Reyes’ personal
client, that he was the only Siraj
employee authorized to speak on the
telephone with Bani, and, importantly,
that all incoming faxes from Texam were
to be delivered to and handled
exclusively by Reyes.
Viewed in the light most favorable to
the government, and making all reasonable
inferences in its favor, Neville, 82 F.3d
at 757, we hold that when considering the
totality of the evidence offered by the
prosecution, it was sufficient for the
jury to find that Reyes attempted to
export parts to Texam without a license
and that he had knowledge that the
aircraft parts would be forwarded to
Iran, in violation of the IEEPA. Reyes’
challenge to the sufficiency of the
evidence supporting his conviction on
Count 5 of the indictment is without
merit.
D. Calculation of Base Level
Reyes’ final challenge involves the
calculation of his base level under the
United States Sentencing Guidelines. The
district court, in sentencing Reyes for
his conviction on Count 4 of the
indictment (violation of the AECA),
applied U.S.S.G. sec. 2M5.2(a)(1), which
provides for a base level of 22 for all
violations of 28 U.S.C. sec. 2778 (the
AECA). The only exception permitted by
the guidelines is that instance in which
a defendant’s conviction for violation of
the AECA "involved only non-fully
automatic small arms (rifles, handguns,
or shotguns), and the number of weapons
did not exceed ten," in which case the
base level should be set at 14. U.S.S.G.
sec. 2M5.2(a)(2).
Reyes advances a plethora of arguments
in support of his proposition that his
base level should have been set at 14.
Reyes’ self-serving ideas about the
seriousness of his crimes are more
properly addressed to the U.S. Congress
and the U.S. Sentencing Commission. It is
the Sentencing Commission’s duty to
recommend the proper guidelines and
forward them to Congress for the
enactment of legislation, and Reyes’
biased opinion dealing with the
"seriousness" of his crime is of
absolutely no import because it is
irrelevant under the plain language of
the Guideline. Congress has established a
base level for violations of the AECA in
U.S.S.G. sec. 2M5.2(a)(1) and (2). The
Guidelines are clear and unambiguous, and
the trial judge did not err in setting
Reyes’ base offense level at 22.
The judgment and sentence of the
district court are AFFIRMED.
FOOTNOTES
/1 The IEEPA, with certain exceptions not pertinent
here, gives the U.S. President authority to
regulate or prohibit exports and other transac-
tions in response to certain national security
situations. See 50 U.S.C. sec.sec. 1701, 1702.
/2 In March, 1997, Siraj registered with the State
Department as an exporter of defense articles, in
order that they might obtain export licenses for
certain items on the Munitions List. 22 C.F.R.
sec. 122.1(c).
/3 Bani was also charged in the indictment but to
date has failed to submit to the court’s juris-
diction.
/4 Debra Martell, in identifying Reyes’ handwriting
at trial, stated (without objection) that she was
familiar with Reyes’ handwriting and that the
handwriting on these documents was his.
/5 Martell’s firing on September 27, 1999, occurred
but two weeks before Reyes’ trial.
/6 The record discloses that the government did not
conduct any investigation into Martell’s vague
allegations concerning the sale of Siraj until at
least five weeks after the completion of Reyes’
trial (November, 1999).
/7 The documents introduced in evidence included
those detailed in part I.B of this opinion, and
additionally: (1) phone message notes in Reyes’
handwriting referencing "foreign military sales,"
"defense trade controls," and the phone numbers
of State Department employees; (2) a list of
aircraft parts contained in the Siraj warehouse
that included the type of aircraft that used each
part; and (3) a price quotation from a Siraj
supplier, addressed to Reyes, containing the
notation "proof of U.S. Government State Depart-
ment license must be provided prior to acceptance
and processing of any resulting order."