Eleventh Circuit Court of Appeals - Published Opinions

Thursday, June 07, 2018

Man: Upholding Arms Export Conspiracy Conviction/Sentence Over Multiple Challenges

In United States v. Man, No. 16-15635 (June 6, 2018) (William Pryor, Jill Pryor, Black), the Court affirmed a conviction and sentence for conspiracy to export defense articles without approval, in violation of the Arms Control Export Act. 

First, the Court found the evidence was sufficient to support the conviction.  Sufficient evidence established that she entered into an unlawful agreement with a co-conspirator, and so it did not matter that a third-party rejected their export proposals.  Sufficient evidence established that the defendant and her co-conspirator willfully violated the Act because, although the government was required to prove that the defendants knew their actions violated a known legal duty rather prove a mere awareness that their actions were generally unlawful, the government met that heightened mens rea standard in this case.  And because sufficient evidence showed showed that she was predisposed to commit the offense, the Court rejected the defendant's argument that she was entrapped.

Second, the Court found no abuse of discretion in admitting evidence of conspirators' communications.  A transcript of a conversation among her co-conspirators was admissible under the hearsay exception for statements offered against the defendant made by her co-conspirator during and in furtherance of the conspiracy.  Emails sent to the defendant by an unidentified third party were also admissible under that same hearsay exception.  And communications between the defendant her co-conspirator were intrinsic to the charged conspiracy and thus were not barred by Rule 404(b).

Third, the Court found that the defendant's sentence was procedurally and substantively reasonable.  As to the former, the Court concluded that the district court did not clearly err by declining to award her a minor role reduction under USSG 3B1.2(a), because she played an essential role in the conspiracy as the sole intermediary, by helping plan and organize the crime, she understood the scope and structure of the activity, she stood to benefit from its success, and her reliance on her mental status was governed by a different guideline and unpersuasive in any event given her persistent, deliberate, and sophisticated communications with the co-conspirators.  Her 50-month sentence was not substantively unreasonable because, contrary to the defendant's argument, the district court did not rely on an impermissible factor--i.e., her Chinese national origin--because the court was entitled to reference her allegiance to China, which was relevant to the offense.

Finally, the Court found found no plain Brady error by the government's failure to provide the defendant with an email sent by one of her co-conspirators to another, which the defendant argued could have been used to impeach one of them at trial.  The Court, however, found that she knew about the email yet failed to exercise reasonable diligence in procuring it before trial.  And she failed to establish a reasonable probability that it would have changed the verdict because, if anything, it would have helped the government establish the conspiracy.