United States v. Hanna

• Decision Date: 12 August 2011
• Docket Number: 09–2086.,Nos. 09–1425,s. 09–1425
• Citation: 661 F.3d 271,86 Fed. R. Evid. Serv. 213
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dawn HANNA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

661 F.3d 271

86 Fed. R. Evid. Serv. 213

UNITED STATES of America, Plaintiff–Appellee,

v.Dawn HANNA, Defendant–Appellant.

Nos. 09–1425

09–2086.

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2011.Decided and Filed: Aug. 12, 2011.

ARGUED: N.C. Deday LaRene, LaRene & Kriger, P.L.C., Detroit, Michigan, for Appellant. Michael C. Martin, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LaRene & Kriger, P.L.C., Detroit, Michigan, for Appellant. Michael C. Martin, Barbara L. McQuade, Assistant United States Attorneys, Detroit, Michigan, for Appellee.Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Defendant Dawn Hanna was indicted on multiple counts for shipping telecommunications and navigation equipment to Iraq, in violation of the embargo implemented by Executive Order 12722 and the International Emergency Economic Powers Act. Prior to trial, the district court denied Hanna's motion to suppress certain evidence gathered through warrants. The government sought and was granted a protective order to prevent disclosure of certain confidential documents to the defense. The district court also excluded testimony from a defense witness, Juan Otero. Hanna was ultimately convicted on all but one count of the indictment. The district court found her sentencing range to be 188–235 months, but in its discretion only imposed concurrent sentences of 72 months. Hanna then filed a Motion for New Trial based on newly-discovered information, which she contended also demonstrated a Brady violation. However, the court denied the motion, stating that the evidence did not undermine establishment of the offense elements, or provide an affirmative defense.

Multiple issues are raised on appeal. We conclude that the trial court did not err in denying Hanna's motion to suppress information gathered from warrants in the case, and that any error in excluding Otero's testimony was harmless. We find no error in the district court's addition of the sentencing enhancement for an offense “involving ... national security.” We conclude, however, that the district court did err in its sentencing calculation, but not for the reasons Hanna asserts. The court improperly sentenced Hanna under U.S.S.G. § 2S1.1(a)(2), but because this action was induced by Hanna, it is invited error and does not warrant reversal. Lastly, no Brady violations occurred in this case, and Hanna's newly-discovered evidence does not meet the standard for a new trial. Therefore, we AFFIRM.

I. BACKGROUND

Defendant Dawn Hanna worked as a director of sales at Technology Integration Group Services (“TIGS”), a family business. During this time, an embargo was in effect under United States law, which prohibited virtually all trade with Iraq. No United States citizen was allowed to engage in such trade without first obtaining approval from the Secretary of Treasury, tasked with implementing this embargo by granting licenses on a case-by-case basis. The law imposed criminal penalties for individuals who violated this embargo, and Hanna admits she knew about the embargo.

In 2001, Hanna's father (an Iraqi citizen) brought her a request for quotations for a cellular phone system to be built in Baghdad. Hanna testified that she believed that this tender was on an approval list for a program called “Oil for Food,” which allowed shipment of goods in certain circumstances but still required the requisite license. Hanna prepared a quotation for the project, faxed the proposal to Baghdad, and won the tender. She worked on this deal with a man named Emad Al–Yawer and his company, ATS. She claims she eventually learned that she could not legally supply this equipment, and withdrew from that transaction. She then proceeded to negotiate, arrange, and complete several other shipments of items from and through various places, all ultimately going to Iraq, in violation of the embargo. She claims, however, that she believed these were going to a customer of Al–Yawer, Dresser International, in Turkey. Stipulated testimony from Al–Yawer reflected this at trial, stating that Turkey was a ruse, and that while the equipment was intended for Iraq, Hanna was not a party to this deception. He claims that he “never told Dawn Hanna” and instead “told them, at all times, that Turkey was the intended final destination.” However, Skyport Air Freight was the principal freight forwarding company for these transactions, and its owner-operator Charle Malas testified that Hanna initially told him the equipment was headed to Turkey, but later admitted it was destined for Iraq. Likewise, both a business associate and a friend of Hanna each testified that Hanna told them the equipment was headed for Iraq through Turkey, in order to evade the embargo.

It is undisputed that Hanna made “efforts to acquire and ship the GSM equipment which was the subject of the charges in the Indictment,” and therefore her specific steps in planning these shipments will not be reviewed in detail. In summary, she secured shipments, had some items installed in shipping containers, and arranged for shipping through freight forwarders, principally Skyport. One ATS employee, who was once Hanna's fiancé, testified at trial that he arranged for the shipment of this equipment from Syria to Baghdad. Hanna and her associates located suppliers in the United Kingdom and Germany for their project in September 2002. They informed the suppliers that the equipment was headed to Turkey, purchased the equipment, and made four separate shipments to Iraq by way of Syria. To finance the transactions, TIGS received two wire transfers, totaling approximately $9.5 million, which was distributed to various people in the scheme, including Al–Yawer. A little over one million was kept by TIGS and Hanna's family, as profit. These payments involved letters of credit, which stated that the equipment was destined for Turkey; additionally, TIGS submitted shipping records to the bank to obtain payment under these letters; these were also false. These acts were the basis for Count Eight of the Indictment, for Hanna's involvement in a money laundering conspiracy.

After the four successful shipments were accomplished, two more are relevant in this case. One TIGS shipment intended for ATS was seized by United States customs in February 2003, though this shipment did not contain telecommunications goods (this would later become the basis of Count Three, the only count for which Hanna was acquitted). Another shipment was seized by British Customs for lack of an export license in March 2003. Both countries' authorities began investigations, and Hanna gave statements to both. She denied to American investigators that any goods were bound for Iraq. She also originally denied knowing Al–Yawer. These statements were the basis of the false statement charge of Count Ten.

ACQUISITION OF SEARCH WARRANTS

On June 22, 2004, a magistrate judge issued two warrants in this case, both of which were premised on an affidavit of United States Immigration and Customs Enforcement (ICE) Special Agent Brian Wallace, which set forth the details of an investigation into suspected violation of the Iraqi trade embargo, involving both GSM and GPS technologies. The warrants, discussed in further detail below, were to search the TIGS business premises and files, and to search Hanna's AOL email account. The ten-page affidavit stated, among other things:

• The investigation began with an interception of the TIGS shipment in February 2003. The shipment contained high-tech equipment, and was invoiced to “ATS Inc./Dresser” in Amman, Jordan, via Damascus, Syria.

• A statement made by an ATS employee shortly before the Iraq war began in 2003, stating that the company's shipment of telecommunications equipment was going through London to be used in “an emergency, like war,” at a time when war with Iraq was likely.

• Hanna's statement to British Customs officers that the goods in her shipment were passing through Syria and Jordan to a final destination in Turkey because they were free-trade zones and she could avoid paying duty. This was suspicious because Turkey was also a free-trade zone, making the claimed routes illogical.

• Hanna told Customs and FBI agents in Chicago that around ten percent of TIGS' business was foreign exports. She also told them she had previously done business with ATS, and that ATS was currently paying TIGS approximately five million dollars to purchase and export equipment to Jordan. She stated that the ultimate destination was Turkey, and that she did not know who the end user was.

• After British Customs informed TIGS that British government approval would be needed before telecommunications equipment there could be exported, TIGS promptly moved the equipment to another shipper for export to France.

• The shipment opened by British authorities contained the GPS equipment TIGS was exporting, as well as a box belonging to Yasir Rashid, an Iraqi national working for ATS. Rashid told agents that he believed the GPS equipment was going to Iraq, because ATS had an office in Baghdad, he (Rashid) is an Iraqi citizen who works primarily in Baghdad, he received expensive training on this equipment, and the Jordan seaport was already equipped with this equipment.

• An official Iraqi government memorandum found in Iraq after the fall of Baghdad indicated that ATS had a contract to provide the Iraqi government with 500 “receivers” during the same time frame as TIGS' past shipments to ATS.

• In a British Customs interview, Skyport stated it was hired to ship ten tons of telecommunications equipment for TIGS to Turkey via Syria, addressed to Dresser International. Hanna provided British Customs with the Turkey address for this shipment, but the address was determined to be an apartment complex. The affidavit also notes that the director of Skyport was Charle Malas.

• Hanna furnished...