United States v. Al Jaberi

97 F.4th 1310

UNITED STATES of America, Plaintiff-Appellee, v. Nihad AL JABERI, Defendant-Appellant.

No. 22-12852

Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit

Filed: April 5, 2024

Appeal from the United States District Court for the Southern District of Georgia, D.C. Docket No. 4:21-cr-00031-RSB-CLR-1

Justin Davids, James C. Stuchell, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Plaintiff-Appellee.

Bingzi Hu, Katryna Lyn Spearman, Murdoch Walker, II, Lowther Walker, LLC, Atlanta, GA, for Defendant-Appellant.

Before Lagoa, Brasher, and Tjoflat, Circuit Judges.

TJOFLAT, Circuit Judge:

Nihad Al Jaberi appeals his convictions and sentences for attempted smuggling, failure to notify a common carrier, and submitting false or misleading export information. He contends that there was insufficient evidence of his guilt because law enforcement did not conduct certain surveillance and because of alleged inconsistencies in witness testimony. He also argues that failure to notify a common carrier and submitting false or misleading export information are both lesser included offenses of smuggling and therefore asserts that his convictions violate the Double Jeopardy Clause. Next, he argues that his due process rights were violated because the Government failed to correct false witness testimony and made prejudicial statements. Finally, he asserts that his sentences are procedurally and substantively unreasonable because they subjected him to double jeopardy and were greater than necessary. For the reasons below, we affirm Al Jaberi's convictions and sentences.

I. Background

In February 2021, a federal grand jury returned a three-count indictment against Al Jaberi. Count One charged Al Jaberi with smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1). Of the nine firearms listed in Count One, relevant here was the "Magnum Research, model Desert Eagle, .44 caliber pistol." Count Two charged Al Jaberi with violating 18 U.S.C. § 922(e) by knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped. Count Three charged Al Jaberi with violating 13 U.S.C. § 305(a)(1) by knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts.

A. Trial

During its opening statement, the Government stated that Al Jaberi contracted with a common carrier to send a shipping container to Iraq. It explained that Al Jaberi made an atypical request to load the shipping container himself. It added that although Al Jaberi told the common carrier that he was sending auto parts, he loaded nine firearms into the shipping container. The Government also stated that law enforcement searched the container before it left port and discovered the firearms, including "a .44 [caliber] Magnum Desert Eagle."

During the Government's case, Valery Baranouski—the owner of the common carrier company North Atlantic Logistics (NAL)—testified as follows. NAL contracted with Al Jaberi to ship a container with spare auto parts in it from Georgia to Iraq. Typically, NAL would load the shipping containers at their own facility. But because of the pandemic, NAL sent the container to Al Jaberi's facility for loading to reduce human contact. Al Jaberi and NAL agreed that the container would be delivered directly to Al Jaberi on July 24, 2020, and picked up three days later. On July 27, Al Jaberi emailed a bill of lading to NAL that described the cargo only as "auto parts." The next day, NAL electronically submitted this information to the United States Customs and Border Protection's (CBP) Automated Export System (AES).

On cross-examination, defense counsel showed Baranouski a copy of the shipping container's bill of lading. He testified that the document "indicate[d] that the cargo was loaded and shipped from KHM Auto, Inc.," at "1810 Auger Drive" and confirmed that this was at Al Jaberi's instruction.

The Government also called CBP Agent Nichole Hamm to testify. Agent Hamm testified that her team searched Al Jaberi's outbound shipping container on August 4, 2020. Her team found a camp stove box wrapped in green cellophane against the back wall of the container. The box contained disassembled firearms that were also wrapped in green cellophane.

After Agent Hamm's testimony, the Government called CBP Supervisor John Wilcher. Wilcher testified that one of the firearms was "a .50 caliber Magnum Research Desert Eagle." When Wilcher testified that CBP found a magazine for "the .50-cal-iber Desert Eagle," the Government repeated, ".50-caliber Desert Eagle, all right." And, in the trial transcripts, the court reporter labeled the exhibit for this firearm as a ".50 caliber Magnum Research Desert Eagle."

The Government then called Special Agent Ariel Leinwand of the Department of Commerce, Bureau of Industry and Security, Office of Export Enforcement (BIS). Special Agent Leinwand testified that in October 2020, the BIS searched Al Jaberi's home. During its search, the BIS discovered three key pieces of evidence: (1) the same type of green cellophane that the firearms were wrapped in; (2) retail boxes for the firearms that were found disassembled in the shipping container; and (3) a paper retail purchase receipt for one of the firearms found in the shipping container. BIS agents also interviewed Al Jaberi. According to Special Agent Leinwand's testimony, Al Jaberi admitted that he shipped these firearms to Iraq without informing the common carrier of the firearms. Al Jaberi also admitted that the firearms were his and that he packed them in the container without informing the common carrier.

On cross-examination, Special Agent Leinwand testified that the BIS did not investigate KHM Auto. Inc. or 1810 Auger Drive. And Special Agent Leinwand did not recall uncovering any communication between Al Jaberi and individuals in Iraq about the shipment.

The Government's final witness was BIS Special Agent Jonathan Gray. During his testimony, Special Agent Gray recognized an exhibit as "the Magnum Research, Model Desert Eagle .44-caliber." The Government showed Special Agent Gray several photographs and he testified as follows. The series of photos came from Al Jaberi's cellphone and showed the container being progressively packed with cargo. Al Jaberi's cellphone also contained photos of firearms discovered in the shipping container. During the search of Al Jaberi's home, law enforcement took photos that showed a roll of green cellophane wrap and cases matching the firearms.

On cross-examination, Special Agent Gray testified to the following. In February 2021, the BIS arrested Al Jaberi and immediately interviewed him. During the interview, Al Jaberi admitted that he loaded the container. Special Agent Gray was shown a photo of the shipping container, in which it appeared that the stove box containing firearms was not located "all the way in the back"; instead, there were "vehicles behind it."

Before closing arguments, Al Jaberi moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure¹ and argued that there was insufficient evidence of his guilt. Al Jaberi asserted that no government witness identified him as the defendant. He asserted that there was insufficient proof that he loaded the container, and that any statement that he made regarding having done so was "contradicted by the other evidence." He posited that he never certified the container's contents because another individual did, and he had no reason to know that NAL required written notice of the firearms. He also argued that Baranouski's testimony contradicted the Government's assertion that Al Jaberi knowingly caused the filing of false or misleading export documentation. The District Court denied Al Jaberi's motion.

In its closing argument, the Government stated that Al Jaberi tried to smuggle "a .44-caliber Desert Eagle." It asserted that Al Jaberi "paid through some electronic payment Mr. Eugene McNair $525, presumably for" one of the firearms. The Government also posited that Al Jaberi "removed the actual camping stove from the box," and in its place, CBP found dissembled firearms.

Before jury deliberation, the District Court reminded the jurors that they "must consider only the evidence" and that "anything the lawyers sa[id was] not evidence." United States v. Al Jaberi, No. 4:21-cr-00031-RSB-CLR-1, Doc. 114 at 68:14-17 (S.D. Ga. Nov. 8, 2022). And the District Court explained the final element of smuggling, in violation of 18 U.S.C. § 554(a), required that Al Jaberi knowingly exported a firearm

in violation of at least one of the laws listed in the indictment, that is, A, that the defendant knowingly delivered or caused to be delivered a container containing the firearms to a common carrier for international shipment without providing written notice of the presence of the firearms to the carrier . . . . That's 18 [U.S.C. §] 922(e); or, B, that the defendant knowingly filed or caused another to file inaccurate or misleading information through the United States Shipper's Export Declaration or [AES], and that's 13 [U.S.C. §] 305.

Id., Doc. 114 at 74:2-14. The jury found Al Jaberi guilty on all counts.

B. Sentencing Hearing

The U.S. Probation Office prepared a presentence investigation report (PSR) for the sentencing hearing. The PSR grouped Al Jaberi's offenses and calculated a base offense level of twenty-six under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2M5.2(a)(1) (U.S. Sent'g Comm'n 2021). The PSR recommended that Al Jaberi receive a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice, resulting in a total offense level of...