Petition for Writ of Certiorari — Alikhani v. United States

Bupens Cort, Oe

FILED

0 00. 284 auc 22 2000

No. 00-

re

IN THE

Supreme Court of the United States

HOSSEIN ALIKHANI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

HuGH J. TURNER Jr. Bruce S. Rocow *

ENGLISH, MCCAUGHAN BEVERLY A. POHL

& O’Bryan, P.A. Bruce S. Rocow, P.A.

100 N.E. Third Avenue Broward Financial Centre

Suite 1100 Suite 1930

P.O. Box 14098 500 E. Broward Boulevard

Fort Lauderdale, FL 33302 Fort Lauderdale, FL 33394

(954) 462-3300 (954) 767-8909

Attorneys for Petitioner

* Counsel of Record

i

QUESTION PRESENTED

Does federal coram nobis lie to vacate a plea of guilty

to a federal offense entered by a foreign national

kidnaped by United States authorities, who plead to a

non-existent (as to him) crime in order to secure his

release from custody and was later precluded from

seeking civil relief against private entities who caused

his abduction and arrest?

ll

TABLE OF CONTENTS

Page

Question So Pere rr te re hae i

BOCES, ov cask i eee ili

COPING DRDO on ok kav daa catia DO ee ]

PE eee er mee ]

DG DINE a ne i Rd Eee ]

na CEG UNE 65a hha is 2

A. The Events Leading to the

eee 2

B. The Coram Nobis in the District Court .... 5

al The Court of Appeals Decision ......... 7

Reasons for granting Whe Wil... . oe cece ascendess 9

CRUGIINOD. «os 5 6:0. ocean eae 15

Appendix:

A. January 11, 2000 Opinion of the U.S.

Court of Appeals for the Eleventh Circuit ....... la

B. September 14, 1999 Order of the U.S. District

Court for the Southern District of Florida ....... 7a

C. June 19, 2000 Order of the U.S. Court of

Appeals for the Eleventh Circuit,

ere re 38a

ili

TABLE OF AUTHORITIES

Cases Page

Blackledge v. Perry, 417 U.S. 21 (1974) ...........-. 14

Hill v. United States, 368 U.S. 424 (1962) ............. 9

Menna v. New York, 423 U.S. 61 (1975) .......... 13, 14

United States v. Addonizio, 442 U.S. 178 (1979) .9, 13, 14

United States v. Barboa,

pep 4 3) ra 12, 14

United States v. Meacham,

Seen eee te Gee. 19RD) ic... n ese. See 6, 14

United States v. Morgan, 346 U.S. 502 (1954) .......... 9

Statutes

EES re ne eee ee ee ee 7

Eee eee eee ee ee 1

EID ecg asad cawsnecccces Reisen sk |

Le Se ee eee eee eee eee Ree 2

ac hina yaw slew A 608-48 0.04 6 0 11

31 C.F.R. §§ 550.101-.901 (the Export Control Law) .... 2

31 C.F.R. § 550.202 (Libyan Sanctions Regs.) ......... 2

31 C.F.R. § 550.208 (Libyan Sanctions Regs.) ......... 2

31 C.F.R. § 550.209 (Libyan Sanctions Regs.) ......... 2

31 C.F.R. § 550.409 (Libyan Sanctions Regs.) ......... 2

31 C.F.R. § 550.701 (Libyan Sanctions Regs.) ......... 2

Other —

Executive Orders 12543, 12544 and 12730 ......... 2, 4

]

OPINIONS BELOW

The opinion below, of the Eleventh Circuit Court of

Appeals, is reported at 200 F.3d 732. It is reproduced in the

appendix at App. la-6a. Rehearing was denied, in an

unpublished order. App. 38a. The district court’s order

approving the report and recommendation of the Magistrate

Judge is unreported. App. 7a-37a.

STATEMENT OF JURISDICTION

Judgment was entered by the Eleventh Circuit Court of

Appeals on January 11, 2000 App. la. Rehearing and

rehearing en banc were denied on June 19, 2000. App. 38a.

Jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Title 28 U.S.C. § 1651(a):

The Supreme Court and all other courts

established by Act of Congress may issue all

writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the

usages and principles of law.

STATEMENT OF THE CASE

A. The Events Leading to the Coram Nobis Petition

Hossein Alikhani was kidnaped from The Bahamas in

October 1992 by United States Customs agents masquerading

as American businessmen who were interested in exporting oil

equipment to Libya.’ Such exports are illegal under various

federal laws.’

Alikhani, a Cypriot citizen, was flown to the United

States and initially held in custody in a hotel in Palm Beach

County, Florida. There he was shackled to his bed at night and

was compelled during the day to participate in a sting operation

to snare suspected American violators of the Libya export laws

and regulations. Alikhani was not allowed to inform his family

of his predicament, but was led to believe by Customs that after

his cooperation, he would be released and allowed to return to

Cyprus. However, in November 1992, Alikhani was indicted

and transferred from the hotel to a federal prison where he was

held without bond.

Alikhani moved to dismiss the indictment, challenging

the application of the Libyan Export Control Laws to him, but

' These facts are from the allegations in Alikhani’s dismissed

Petition for Writ of Error Coram Nobis. See also Petition Appendix 8a-1 la.

2 See 50 U.S.C. §§ 1701-05, Executive Orders 12543, 12544 and

12730, 31 C.F.R. §§ 550.202, 550.208, 550.209, 550.409, 550.701 of the

Libyan Sanctions Regulations and 31 CFR 550.101-.901 (the Export

Control Law).

3

just before the hearing the government offered Alikhani a plea

agreement: he could leave the United States if he would plead

guilty to one count of violating the Libyan Export Control

Laws, continue to cooperate with the government’s sting

operations, and agree that he “shall not litigate or file a

complaint in reference to the circumstances of his arrest in any

forum or proceeding.”

Alikhani signed the plea agreement with the

government, plead guilty, immediately went home to his family

in Cyprus, and returned to the Southern District of Florida in

April 1993 for his sentencing. He was sentenced to “time

served.”

In October 1993, Alikhani, his wife Jila and his Cypriot

company, Polygon, sued the United States, United

Technologies Corporation, United Technologies International,

Inc., Turbo Power Marine Systems, Inc., and Albert Baumler in

United States District Court for the Southern District of Florida

for damages arising out of Alikhani’s abduction.’

The non-governmental defendants were sued because

Alikhani’s predicament arose from a September 1990 inquiry

he had made to United Technologies regarding the purchase of

parts for oil equipment supplied by United Technologies to

Libya before the 1986 embargo. Albert Baumler, a United

> The action against the United States was dismissed and is no

longer in issue. The United States is a defendant in a pending Federal Tort

Claims Act suit brought by these petitioners in the Southern District of

Florida. Alikhani, et al. v. United States, No. 97-08012. A request to hold

that case in abeyance until resolution of this certiorari petition is pending

before that district court.

4

Technologies employee, notified Customs. A year later, as a

part of a Customs plan, Baumler telephoned Alikhani to tell

him that United Technologies and International Trading

Resources, Inc. (a Customs created entity) would supply the

parts in which Alikhani had voiced an interest.

Thereafter, Polygon purchased parts from United

Technologies and International Trading Resources. The parts

were shipped to Germany and re-exported by third parties to

Libya.

With the aid and participation of Baumler and his

corporate employers, Customs laid a plan to lure Alikhani to

The Bahamas to discuss further transactions. But rather than

_ meeting Baumler, Alikhani was met by undercover Customs

agents and was told they were flying in a private plane to an

outlying island to meet with Baumler. Instead, Alikhani was

flown to Florida, and was detained in a Palm Beach County

hotel. Alikhani was kept in government custody until he signed

the plea agreement and entered his plea to a single count in the

indictment charging him with violating the Export Control

Laws.

The coram nobis action was an outgrowth of the civil

lawsuit later brought by Alikhani, his wife and his company

against United Technologies and Baumler. In that action, the

defendants argued that the plea agreement’s “shall not litigate”

language was a bar to the civil action. The district court in the

coram nobis case described the choreography leading to its

filing: “Judge Hurley dismissed that [civil] action based on

Alikhani’s agreement, pursuant to his plea, that he would not

sue based on his arrest. Judge Hurley implicitly ruled that the

5

only place in which he could challenge the enforceability of

that plea agreement was before this Court by Writ of Coram

Nobis.” App. 1 1la-12a, n.2.

B. The Coram Nobis in the District Court

As a consequence of the district court’s view of the

consequences of the plea in the civil case, Alikhani filed a

coram nobis petition seeking to vacate his plea, his plea

agreement, and his conviction because: (1) as a foreign national

the Export Control Law had no application to his conduct; (2)

Alikhani was not subject to the jurisdiction of the United

States; (3) the Export Control Law would be unconstitutional

and/or in violation of international law if applied to Alikhani.

A magistrate judge recommended dismissal of the

coram nobis petition because “‘ Alikhani failed to demonstrate

any compelling circumstances or miscarriage of justice and

[failed to] show that he is suffering from any continuing

consequences of his conviction.’”” App.12a, District Court

Order, guoting Magistrate Judge’s Report and

Recommendation.

The district court concluded otherwise: “Because the

undersigned does not agree that this writ is unavailable to

Alikhani, this Order will first address why this petition is the

proper vehicle for Alikhani to present his post-conviction

claims for relief, and then it will address the substantive issues

raised in the petition which warrant the Court’s consideration.”

App. 12a (footnote omitted).

6

The district court stated that “the imposition of criminal

sanctions, no matter how slight, in the absence of subject

matter jurisdiction, qualifies as a miscarriage of justice” and

rejected the notion that Alikhani’s plea waived alk of his rights:

“jurisdictional defects cannot be procedurally defaulted or

waived. ... United States v. Meacham, 626 F.2d 503, 510 (5"

Cir. 1980) (The entry of a guilty plea does not act as a waiver

of jurisdictional defects, such as an indictment’s failure to

charge an offense.).” App. 15a. The district court also found

that the fact that Alikhani, by virtue of the plea agreement,

“may not seek redress in United States courts for alleged

injuries to him by the United States” constituted a serious civil

disability cognizable by coram nobis. App. 14a, n.4. The court

also summed up the heart of Alikhani’s claim:

Assuming, arguendo, that this Court had no

jurisdiction to adjudicate Alikhani guilty, he

would have been entitled to release from

custody with no conditions or plea agreement.

Because plea agreements must be knowing and

voluntary, if Alikhani was otherwise entitled to

his freedom, then by signing the Agreement to

secure his freedom, Alikhani, did _ not

voluntarily relinquish his right to seek redress in

a subsequent civil suit. See Vallone v. Lee, 7

F.3d 196, 199 (11™ Cir. 1993); cf also Hall v.

Ochs, 817 F.2d920, 923 (1* Cir. 1987)

(confining a criminal defendant because he may

seek civil redress violates his right to liberty).

App. 14a, n.5.

7

In the end though, the district court held that because

the Export Control Law indictment count to which Alikhani

plead also contained a 18 U.S.C. § 2 aiding and abetting

allegation, he plead guilty to a crime for which he could be

charged.‘ Thus, even if the Libya export statutes and

regulations did not extend to the conduct of foreign nationals

acting outside the United States, the aiding and abetting statute

provided a basis for jurisdiction over him: “Thus the ‘or

another’ language extends criminal liability to defendants, like

Alikhani, who cause another, who may be innocent of the

substantive offense, to engage in conduct that would be

criminal if the principal (in this case Alikhani) had done the act

himself.” App. 26a. The court discounted the fact that the

“anothers” were, in this case, government agents or their

surrogates. App. 28a and n. 14.

C. The Court of Appeals Decision

The Eleventh Circuit affirmed, limiting its inquiry to

one subject: whether the district court had subject matter

jurisdiction over Alikhani even if the government did not have

the “power to prosecute a non-U.S. person, either because of an

implicit limit on the President’s power to impose an executive

embargo, or because the embargo regulations themselves

implicitly bar only transaction by U.S. persons.” App. 4a. The

court of appeals viewed Alikhani’s attacks on the validity and

applicability vel mon of the indictment and the

4 18 U.S.C. § 2(b) provides: "whoever willfully causes an act to

be done which if directly performed by him or another would be an offense

against the United States, is punishable as a principal."

8

statutory/regulatory scheme “not cognizable on coram nobis

review,” concluding that only a lack of subject matter

jurisdiction could qualify for coram nobis consideration: “A

genuine claim that the district court lacked jurisdiction to

adjudicate the petitioner guilty may well be a proper ground for

coram nobis relief as a matter of law.” App. 4a.

Then the court held that there was subject matter

jurisdiction in the district court because “The United States

filed an indictment charging Alikhani with violating ‘laws of

the United States,’ and [18 U.S.C.] § 3231 on its face

empowered the district court to enter judgment upon the merits

of the indictment. .... ” Drawing an analogy to subject matter

jurisdiction in civil cases, the court held that “‘the absence of

a valid (as opposed to arguable) cause of action does not

implicate subject matter jurisdiction, i.e., the court’s statutory

or constitutional power to adjudicate the case. Steel Co. v.

Citizens for a Better Env’t., 118 S. Ct. 1003, 1010 (1998)

(emphasis in original).’” App. 5a. [

Based on that narrow view of the standard for coram

nobis relief — that any claim other than subject matter

jurisdiction could not be “raised for the first time in a collateral

proceeding...” (App. 6a) — the court of appeals held that the

_ district court “did not abuse its discretion by denying relief” to

Alikhani.

Alikhani seeks review via this Petition.

9

REASONS FOR GRANTING THE WRIT

The decision below presents an important but

unanswered question regarding the scope of federal coram

nobis jurisdiction, and conflicts with this Court’s decision

permitting collateral attacks where the claimed errors

“constituted a fundamental defect which inherently results in a

complete miscarriage of justice.”” United States v. Addonizio,

442 U.S. 178, 185 (1979), quoting Hill v. United States, 368

U.S. 424, 428 (1962). And the decision below conflicts with

decisions of other circuits which have not limited coram nobis

to “subject matter jurisdiction.”

This Court has recognized the utility of coram nobis:

“continuation of litigation after final judgment and exhaustion

or waiver of any statutory right of review should be allowed

through this extraordinary remedy only under circumstances

compelling such action to achieve justice.” United States v.

Morgan, 346 U.S. 502, 511 (1954). As the Court said,

“otherwise a wrong may stand uncorrected which the available

remedy would right.” Jd., at 512.

The wrong in this case is that Alikhani plead guilty to

a crime which he could not commit because the Export Control

Law, the Executive Order and the Libyan Regulations do not

criminalize acts by a non “United States person.”

Count II of the indictment, the charge to which Alikhani

plead, stated:

10

From on or about July 8, 1991, to on or about

August 1, 1991, to on or about August 1, 1992

at Riviera Beach and West Palm Beach, Palm

Beach County, with West Palm Beach, Florida

being the first place to which defendant

Alikhani was brought, in the Southern District

of Florida, and elsewhere, the defendants,

HOSSEIN ALIKHANI,

a/k/a J.A. FARAM,

and

GEORGE CHRISTOFORU

and others known and unknown to the Grand

Jury, did knowingly and willfully violate a

license, order and regulation of the United

States by transferring, dealing in, exporting and

causing the export of goods and technology this

is, industrial equipment, in which the

Government of Libya had an interest, from the

United States to third countries, knowing and

having reason to know that the items were

intended for transshipment to Libya; all in

violation of Title 50, United States Code §

1701, 1702, 1705, Executive Orders 12543 and

12544 and Title 31, Code of Federal

Regulations, Section 550.202, 550.208,

550.209, 550.409, and 550.701, and Title 18,

United States Code, § 2.

Alikhani was “brought” to the United States by abduction, and

it is undisputed that he is not a “United States person.” App.

8a, n.1.

11

The Office of Foreign Assets Control of the United

States Department of the Treasury August 1992 Overview of

the Libyan Sanctions Regulations — Title 31 Part 550 of the

U.S. Code of Federal Regulations “LIBYA, WHAT YOU

NEED TO KNOW ABOUT THE U.S. EMBARGO” leaves no

doubt that Alikhani was not within the scope of the law:

The Regulations are still in force and affect all

U.S. Citizens and permanent residents wherever

they are located, all people and organizations

physically in the United States, and all branches

of U.S. organizations throughout the world.

(first emphasis supplied).

* * *

No U.S. person may perform any contract in

support of an industrial or other commercial or

government project in Libya. (emphasis

supplied).

The Treasury Department’s “Treasury News” release of

September 1991 is equally explicit: “The Sanctions, however,

prohibit a U.S. individual or company from exporting services

to Libya, as well as from entering into contracts to support

projects in Libya or dealing in property in which Libya has an

interest.” (emphasis supplied). That reading is right because

Executive Order No. 12543, the fundament of the Libyan

Sanctions, makes clear that their focus is on “United States

person.” And the January 7, 1986 White House “Fact Sheet”

on the “Executive Order on Libya” echoes the emphasis on

12

United States persons: “Effective February 1, 1986, United

States persons shall be prohibited from engaging in the

following activities — All... exports to Libya from the

United States... .”

Alikhani is not a United States person. App. 8a, n.1.

Polygon is not a United States company. /d. Alikhani was not

within the scope of the law to which he plead guilty. Nor could

he aid and abet, because the principal in this case — the United

States person acting as exporter — had obtained a license to

export from the Office of Foreign Asset Control.

Thus, Alikhani plead guilty to a crime which, as a

matter of law, he could not commit. Under this Court’s

decisions, Alikhani’s plea is not a bar to coram nobis relief.

See United States v. Barboa, 777 F.2d1420 (10" Cir. 1985),

summarizing the Court’s holdings:

A plea of guilty . . . does not bar a claim that the

defendant may not constitutionally be convicted

in the first instance, “no matter how validly his

factual guilt is established.” Menna v. New

York, 423 U.S. 61, 62-63 n.2, 96 S. Ct. 241,

242, n.2, 46 L. Ed. 2d 195 (1975). If Barboa

pled guilty to something which was not a crime,

he is not now precluded from raising this

jurisdictional defect, which goes “to the very

power of the State to bring the defendant ihto

court to answer the charge brought against

him.” Blackledge v. Perry, 417 U.S. 21, 30, 94

S. Ct. 2098, 2103, 40 L.Ed. 2d 628 (1974). See

also United States v. Meacham, 626 F.2d 503,

509-10 (5™ Cir. 1980) (guilty plea does not bar

13

jurisdictional claim that indictment for

“conspiracy to attempt” failed to charge

offense); Journigan v. Duffy, 552 F.2d 283,

288-89 (9" Cir. 1977) (guilty plea no bar to

claim that defendant was prosecuted under

unconstitutional statute).

Id. at 1423, n. 3.

The assemblage of laws utilized against Alikhani can be

constitutionally applied to United States persons. But the

Constitution cannot countenance a guilty plea to a crime that is

non-existent vis a vis a person legislatively, administratively

and presidentially excluded from the reach of the law. “Where

the state is precluded by the United States Constitution from

haling a defendant into court on a charge, federal law requires

that a conviction on that charge be set aside even if the

conviction was entered pursuant to a counseled plea of guilty.”

Menna v. New York, 423 U.S. 61, 62 (1975).

In United States v. Addonizio the Court denied relief

because there was “no claim of a constitutional violation; the

sentence imposed was within the statutory limits; and the

proceeding was not infected with any error of fact or law of the

‘fundamental’ character that renders the entire proceeding

irregular and invalid.” 442 U.S. at 186. The Court said:

“According to all of the objective criteria— federal jurisdiction,

the Constitution, and federal law — the sentence was and is a

lawful one.” Jd., at 187.

If the crime to which Alikhani plead guilty was no

crime, then his conviction, sentence, and subsequent civil

14

disability denying him access to court was not a lawful one.

The availability of coram nobis should not have been

constricted by the court of appeals. Doing so conflicted with

this Court’s broader language in Addonizio, Blackledge, Perry -

and Menna and with court of appeals decisions like Barboa and

Meacham, which recognize that if something is not a crime, a

defendant’s guilty plea does not preclude a collateral attack

“raising this jurisdictional defect, which goes to the very power

of the State to bring the defendant into court to answer the

charge brought against him. Blackledge v. Perry, 417 U.S. 21,

30... .”” Barboa, 777 F.2d at 1423, n.3.

15

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

* BRUCE S. ROGOW

BEVERLY A. POHL

BRUCE S. ROGOW, P.A.

Broward Financial Centre

Suite 1930

500 East Broward Boulevard

Fort Lauderdale, Florida 33394

(954) 767-8909

and

HUGH J. TURNER JR.

- ENGLISH, McCAUGHAN &

O’BRYAN, P.A.

Suite 1100

100 N.E. Third Avenue

P.O. Box 14098

Fort Lauderdale, FL 33302

(954) 462-3300

* Counsel of Record

August 22, 2000

APPENDIX

la

APPENDIX A — PER CURIAM OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DATED AND

FILED JANUARY 11, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-5546

D. C. Docket Nos. 96-8021-CV-UUB

92-8108-CR-UUB

HOSSEIN ALIKHANI, a.k.a. Hossein Alikani,

a.k.a. J. A. Faram,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(January 11, 2000)

Before COX and DUBINA, Circuit Judges, and KRAVITCH,

Senior Circuit Judge.

2a

Appendix A

PER CURIAM:

Hossein Alikhani appeals the denial of his petition for a

writ of error coram nobis. We affirm.

Background

Following an unsuccessful attempt to procure certain

oil-production equipment in the United States for sale to

Libya, Alikhani (a Cypriot) was charged with a criminal

violation of executive orders and regulations, promulgated

under 50 U.S.C. §§ 1701 and 1702, forbidding all exports to

and certain transactions with Libya. Alikhani challenged the

indictment by a motion to dismiss under Fed. R. Crim. P.

12(b)(2). That challenge included the arguments that the

Libyan embargo regulations do not reach non-“U.S. persons,”

a term that is defined in Executive Order No. 12543, the

primary basis of most of the regulations, and that even if the

executive order intended to prohibit conduct by non-U.S.

persons, such a prohibition would exceed the president’s

statutory authority.

The court never ruled on the motion, however, because

Alikhani withdrew it after entering a plea agreement. Under

that agreement, Alikhani pleaded guilty to the charge of

violating the executive orders. Later finding inconvenient a

provision in the plea agreement that prohibited him from

filing suits concerning his arrest, Alikhani has sought by this

coram nobis petition to have his guilty plea invalidated and

the plea agreement thereby voided. The district court denied

the petition after concluding that Alikhani had not presented

any cognizable ground for relief. This court has historically

3a

Appendix A

in unpublished opinions reviewed a denial of coram nobis

relief for abuse of discretion, see Warton v. United States,

No. 91-5133, unpublished op. at 2 (11th Cir. July 30, 1992),

and following the practice in other circuits we deem that to

be the proper standard of review — keeping in mind that an

error-of law is an abuse of discretion per se. See Fleming v.

United States, 146 F.3d 88, 90 (2d Cir. 1998); United States

v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996).

Discussion

The bar for coram nobis relief is high. First, the writ is

appropriate only when there is and was no other available

avenue of relief. See United States v. Morgan, 346 U.S. 502,

512, 74S. Ct. 247, 253 (1954); Moody v. United States, 874

F.2d 1575, 1578 (11th Cir. 1989). Second, the writ may issue

“only when the error involves a matter of fact of the most

fundamental character which has not been put in issue or

passed upon and which renders the proceeding itself irregular

and invalid.” Moody, 874 F.2d at 1576-77.

In a brief that reads like one on direct appeal from a

criminal conviction, Alikhani asserts six challenges to his

conviction. Five of the six are facially not cognizable on

coram nobis review because Alikhani could have, but failed

to, pursue them in a pretrial motion. See Moody, 874 F.2d at

1576. Those five are the arguments that (1) the indictment

was defective because it failed to show that he lacked U.S.

authorization to export equipment to Libya; (2) the statute

and executive order issued under it did not prohibit his

conduct because the order forbids certain acts by U.S.

persons, a category into which he assertedly does not fit;

4a

Appendix A

(3) the export prohibitions do not apply to the transaction in

which he was engaging; (4) he cannot properly be held liable

on an aiding-and-abetting theory; and (5) the executive orders

to whose violation he pleaded guilty were unconstitutionally

vague. The district court would not abuse its discretion by

rejecting such arguments.

Alikhani makes one argument, however, that he deems

to be an attack on the district court’s subject-matter

jurisdiction: the Government lacks the power to prosecute a

non-U.S. person, either because of an implicit limit on the

president’s power to impose an executive embargo, or

because the embargo regulations themselves implicitly bar

only transactions by U.S. persons. A genuine claim that the

district court lacked jurisdiction to adjudicate the petitioner

guilty may well be a proper ground for coram nobis relief as

a matter of law. But these statutory arguments, even if

meritorious, would not implicate the district court’s subject-

matter jurisdiction. :

“Subject-matter jurisdiction defines the court’s authority

to hear a given type of case... .” United States v. Morton,

467 U.S. 822, 828, 104 S. Ct. 2769, 2773 (1984). Congress

bestows that authority on lower courts by statute; in our case,

Congress has provided the district courts with jurisdiction

— “exclusive of the courts of the States” — of “all offenses

against the laws of the United States.” 18 U.S.C. § 3231.

The United States filed an indictment charging Alikhani with

violating “laws of the United States,” and § 3231 on its face

empowered the district court to enter judgment upon the

merits of the indictment, such as dismissing the indictment

on the ground that it does not allege facts showing that the

Sa

Appendix A

defendant committed the charged offense. See Sardelli v.

United States, 813 F.2d 654, 656 (Sth Cir. 1987) (district

court has jurisdiction to determine if a certain kind of conduct

violates a federal criminal statute). Alikhani has cited no

case, and we have located none, holding that the failure of

an indictment to state an offense — as Alikhani at bottom

contends here — divests the district court of the power even

to enter a judgment of acquittal. So to hold would be

inconsistent, indeed, with the Supreme Court’s insistence in

the civil realm that “the absence of a valid (as opposed to

arguable) cause of action does not implicate subject-matter

- Jurisdiction, i.e., the courts’ statutory or constitutional power

to adjudicate the case.” Steel Co. v. Citizens for a Better

Env't, 118 S. Ct. 1003, 1010 (1998) (emphasis in original).

Courts have rejected, moreover, the analogous assertion

that a failure of allegation or proof on an interstate-commerce

element deprives the district court of jurisdiction. An effect

on interstate commerce may be required for Congress to have

authority under the Commerce Clause tu -rbid certain

conduct. See United States v. Lopez, 514 U.S. 549, 562, 115

S. Ct. 1624, 1631 (1995). But to this court and at least one

other, that does not imply that a district court faced with an

insufficient interstate-commerce nexus loses subject-matter

jurisdiction of the case. See United States v. Viscome, 144

F.3d 1365, 1370 (1 1th Cir.) (“Appellant Viscome also attacks

the sufficiency of the government’s evidence regarding the

interstate nexus element. However, Viscome’s guilty plea

waived all non-jurisdictional defects in the proceedings

against him; and Viscome’s sufficiency of the evidence

challenge is non-jurisdictional.”), cert. denied, 525 U.S. 941,

119 S. Ct. 1362 (1998); United States v. Martin, 147 F.3d

6a

Appendix A

529, 532 (7th Cir. 1998) (“[O]nce a defendant pleads guilty

in ‘[a] court which has jurisdiction of the subject matter and

of the defendant, as did the court in the instant case,’ the

court’s judgment cannot be assailed on grounds that the

government has not met its burden of proving ‘so-called

jurisdictional facts.’ ” (quoting United States v. Hoyland, 264

F.2d 346, 352-53 (7th Cir. 1959))). By analogy, even if the

Government had to prove that Alikhani was a U.S. person,

and even if the Government had failed to allege sufficient

facts in the indictment to support an assertion that Alikhani

was a U.S. person, the district court would still have had

subject-matter jurisdiction over the case.

We thus reject the notion that Alikhani’s statutory

arguments are jurisdictional. They were not, therefore,

properly raised for the first time in a collateral proceeding

when they could have been raised earlier. The district court

did not abuse its discretion by denying relief.

Conclusion

For the foregoing reasons, we affirm the district court’s

denial of the petition.

AFFIRMED.

7a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA ON MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION DATED AND

FILED SEPTEMBER 14, 1998

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 96-8021-CIV-UNGARO-BENAGES

Case No. 92-8108-CR-UNGARO-BENAGES

HOSSEIN ALIKHANI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ORDER ON MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon Hossein

Alikhani’s Petition for Writ of Error Coram Nobis (DE-124),

filed on January 10, 1996.

THE MATTER was referred to the Honorable Lurana

S. Snow, United States Magistrate Judge. A Report and

Recommendation (“Report”) dated February 27, 1997 has

been filed (DE-159), recommending that the petition be

DENIED. Extensive objections and responses were filed by

i

8a

Appendix B

the parties over a period of several months following the

issuance of the Report.

THE COURT has reviewed the Petition, objections and

responses, has conducted a de novo review of the pertinent

portions of the record, and is otherwise fully advised in the

premises.

I. BACKGROUND

In September 1990, Alikhani (using the alias Alikhani

Faram)' contacted Turbo Power and Marine Systems, Inc., a

subsidiary of United Technologies located in West Palm

Beach, Florida, regarding the purchase of parts for oil

equipment which United Technologies supplied to Libya

before 1986 when the United States instituted an embargo

precluding export of goods to Libya. Alikhani spoke to

employee Albert Baumler who then informed the United

States Customs Service of Alikhani’s request because

Alikhani acknowledged that the parts were destined for

Libya. Shortly thereafter, an individual called Baumler from

New York and began ordering the parts on Alikhani’s behalf.

Also, for approximately the next six months, Baumler,

Alikhani and this individual exchanged faxes and had

telephone conversations concerning price quotations for

certain parts for engines located in Libya. No actual orders

or money were forthcoming from Alikhani, however, and

the discussions terminated in or about January 1991.

1. Alikhani is and at all relevant times was a citizen of Cyprus

and, in 1990-91, was President of Polygon Company, Ltd., a Cypriot

company based in Nicosia, Cyprus.

9a

Appendix B

In July 1991, Customs directed Baumler to re-contact

Alikhani to see if he was still interested in the parts, in

response to which Alikhani faxed a request for quotes to

Baumler. On August 2, 1991, Baumler telephonically

introduced Alikhani to Lawrence Connolly who supposedly

worked for International Trading Resources, Inc. (“ITR”) as

agent and sales representative for United Technologies. ITR

and Connolly (actually Lawrence O’Donnell) were in reality

part of an undercover sting operation by U.S. Customs. —

Several transactions occurred between the parties as follows:

Alikhani would wire money to Florida; and ITR would send

parts to Alikhani (actually to his companies) in Germany

for transshipment to Libya. Alikhani met with undercover

agents in London in March and April 1992, at which time

they discussed Alikhani’s contracts with the Libyan

government and Libyan National Oil Company. In these

discussions, Alikhani told the agents that he had registered

his company, Polygon, as a Florida corporation in order to

avoid paying Cypriot income taxes on the transactions.

Having determined that Alikhani had violated the

International Emergency Economic Powers Act (“IEEPA”),

50 U.S.C. §§ 1701-05, multiple Executive Orders and several

sections of the Libyan Sanctions Regulations, 31 C.F.R.

§550.101 et seg., Customs determined that they would

apprehend Alikhani and obtained an arrest warrant on July

10, 1992. They set up a meeting in Nassau, Bahamas where

Alikhani was to meet a new contact who supposedly could

obtain other materials for Libya. On October 22, 1992,

Alikhani arrived in Nassau where he was met by undercover

agents who informed Alikhani that he would be going to an

out-island to meet their business contact. The plane that the

10a

Appendix B

party boarded was actually an undercover Customs aircraft.

Once the plane took off and entered international airspace, ©

the agents placed Alikhani under arrest and brought him to

West Palm Beach, Florida.

The agents immediately discussed with Alikhani the

_ possibility of his cooperation in apprehending other

suspected exporters of U.S. technology to Libya. Alikhani

contacted defense counsel and thereafter agreed to cooperate

with the government. The government granted Alikhani use

immunity so that Alikhani could detail the circumstances of

his conduct and otherwise assist Customs. At the conclusion

of his overt cooperation, Alikhani was remanded to the

custody of the United States Marshall and incarcerated at

Metropolitan Correctional Center until February 5, 1993.

Alikhani and George Christoforou were named as

co-defendants in a 13-count indictment on November 19,

1992, charging them with conspiracy to violate the IEEPA,

seven substantive violations of IEEPA, and five separate

money laundering violations. On December 30, 1992,

Alikhani filed a motion to dismiss the indictment for lack of

subject matter jurisdiction, an issue presented by the instant

petition. On the eve of the hearing on that motion, the

government offered Alikhani a plea agreement. On February

5, 1993, Alikhani pleaded guilty to Count II of the indictment

pursuant to the plea agreement. Count II charged that

Alikhani, from July 8, 1991 to August 1, 1992,

did knowingly and willfully violate a license,

order and regulation of the United States by

transferring, dealing in, exporting and causing the

lla

Appendix B

export of goods and technology that is, industrial

equipment, in which the Government of Libya had

an interest, from the United States to third

countries, knowing and having reason to know

that the items were intended for transshipment to

Libya; all in violation of Title 50, United States

Codes § 1701, 1702, 1705, Executive Orders

12543, 12730 and 12544 and Title 31, Code of

Federal Regulations, Section 550.202, 550.208,

550.209, 550.409, and 550.701, and Title 18

United States Code, § 2.

Pursuant to the plea agreement, Alikhani was sentenced to

time served on April 30, 1993, and Counts I and III-XIII of

the indictment were dismissed. As part of his plea agreement,

Alikhani agreed to continue to cooperate fully with the

United States by testifying when requested to do so. He also |

agreed that he would “not litigate or file a complaint in

reference to the circumstances of his arrest in any forum or

proceeding.” (DE-89 at 4 4). Alikhani immediately left the

United States and, since then, has not returned.

The Government contends, and Alikhani does not

dispute, that Alikhani has refused to return to the United

States to testify in grand jury proceedings in derogation of

his plea agreement. Also in violation of his plea agreement,

Alikhani filed a civil suit in this district alleging, among

other things, that he was kidnapped.” Similarly, on October

2. That case was Case No. 93-8513-CIV-HURLEY. Judge

Hurley dismissed that action based on Alikhani’s agreement,

pursuant to his plea, that he would not sue based on his arrest. Judge

(Cont’d)

12a

Appendix B

18, 1995 Alikhani filed a Federal Tort Claims Act suit against

the United States (Case No. 95-8629-CIV-HURLEY)

alleging that he was wrongfully apprehended and arrested.

That case was voluntarily dismissed without prejudice when

Judge Hurley denied Plaintiff's motion to stay pending the

outcome of the instant petition.

The instant petition raises the issues of whether this

Court had subject matter jurisdiction over the offenses to

which Alikhani pled guilty and whether the relevant statutes

are constitutional. The Magistrate Judge did not reach these

substantive issues in her Report, recommending instead that

the petition be denied because Alikhani failed to demonstrate

as a threshold matter that he qualified for the extraordinary

relief afforded by the writ of coram nobis. Because the

undersigned does not agree that this writ is unavailable to

Alikhani, this Order will first address why this petition is

the proper vehicle for Alikhani to present his post-conviction

claims for relief, and then it will address the substantive

issues raised in the petition which warrant the Court’s

consideration.’

(Cont'd)

Hurley implicitly ruled that the only place in which he could

challenge the enforceability of that plea agreement was before this

Court by Writ of Coram Nobis. That case was consolidated with

another action, Case No. 95-8569, filed by Alikhani for breach of

contract relating to the parts sent to Libya. That case has also been

dismissed.

3. The Court’s discussion of the substantive issues is compelled

by the Report’s avoidance of such an inquiry by incorporating by

reference the Government’s legal analysis contained in pages

(Cont ’d)

en rere

13a

Appendix B

Il. LEGAL ANALYSIS

A. Appropriateness of the Writ of Coram Nobis

In response to the petition, the Government argued that

Alikhani does not qualify for the relief afforded by the

extraordinary Writ of Error Coram Nobis. The Magistrate

Judge agreed and, without addressing the merits of Alikhani’s

petition, found that she need not undertake such analysis

because “Alikhani failed to demonstrate any compelling

circumstance or miscarriage of justice and show that he is

suffering from any continuing consequences of his

conviction.” (Report at 7). For the reasons explained below,

the undersigned disagrees with the Magistrate Judge’s

analysis in denying the petition.

A writ of error coram nobis is a limited and extraordinary

remedy reserved for cases in which no statutory remedy is

available or adequate. See United States v. Brown, 117 F.3d

471, 474-75 (11th Cir. 1997). The Government agrees that

this writ is the sole remaining remedy available to Alikhani

because he has completely served his sentence. (Response

at 19 n.16) See Lowery v. United States, 956 F.2d 227, 229

(11th Cir. 1992). Further, “[c]oram nobis jurisdiction exists

only to correct ‘manifest injustice[,] Rener v. United States,

475 F.2d 125, 127 (Sth Cir. 1973), . . . [and] where the errors

(Cont'd)

twenty-four to fifty-four of its response to the petition. See Report

at 9 n.3. The undersigned does not agree that the Government’s

discussion is “detailed, thorough and legally correct,” nor does the

undersigned endorse the wholesale incorporation of thirty pages of

a parties argument into a court order.

14a

Appendix B

[are] of the most fundamental character, that is, such as

render[ing] the proceeding itself irregular and invalid.’ ” Jd.

at 230; Granville v. United States, 613 F.2d 125, 126 n.1

(Sth Cir. 1980) (citations omitted).*

Plainly, the imposition of criminal sanctions, no matter

how slight, in the absence of subject matter jurisdiction

qualifies as a miscarriage of justice.° Thus, Alikhani’s

4. The Government and the Magistrate Judge add an additional

component to this analysis that has not yet been recognized by this

circuit. Apparently, some circuits require a petitioner to demonstrate

that he is suffering from continuing consequences of an allegedly

invalid conviction. See, e.g., United States v. Marcello, 876 F.2d

1147, 1154 (Sth Cir. 1989). Although the Court need not apply this

standard, the Court notes that Alikhani would satisfy it. In Marcello,

cited in the Report, the court held that “coram nobis is appropriate

only where the petitioner can demonstrate that he is suffering civil

disabilities as a consequence of the criminal convictions and that

the challenged error is of sufficient magnitude to justify the

extraordinary relief.” Jd. The Court found that the consequences

flowing from an individual’s branding as a federal felony is sufficient

to warrant coram nobis relief. Jd. Alikhani’s disabilities surpass

Marcelo’s as a convicted felon who also may not seek redress in

United States’ courts for alleged injuries to him by the United States.

5. Assuming, arguendo, that this Court had no jurisdiction to

adjudicate Alikhani guilty, he would have been entitled to release

from custody with no conditions or plea agreement. Because plea

agreements must be knowing and voluntary, if Alikhani was

otherwise entitled to his freedom, then, by signing the agreement to

secure his freedom, Alikhani did not voluntarily relinquish his right

to seek redress in a subsequent civil suit. See Vallone v. Lee, 7 F.3d

196, 199 (11th Cir. 1993); cf also Hall v. Ochs, 817 F.2d 920, 923

(1st Cir. 1987) (confining a criminal defendant because he may seek

civil redress violates his right to liberty).

ee

RPI ner Shane tenets ei acta: ay Rene Los aia iNT ema” YRR telat ae nl ea iar eae

15a

Appendix B

petition requires further scrutiny than that given by the

Magistrate Judge in her Report. In addition, contrary to the

Government’s contention that Alikhani has admitted his guilt

and cannot now raise claims inconsistent with that admission,

jurisdictional defects cannot be procedurally defaulted or

waived. See Harris v. United States, 1998 WL 471532 (11th

Cir. Aug. 13, 1998); United States v. Meacham, 626 F.2d

503, 510 (Sth Cir. 1980) (“The entry of a guilty plea does

not act as a waiver of jurisdictional defects, such as an

indictment’s failure to charge an offense.”); see also United

States v. Caperell, 938 F.2d 975, 977) (9th Cir. 1991) (claim

that indictment failed to state an offense was a jurisdictional

claim not waived by guilty plea).° As a federal court, “we

are courts of limited jurisdiction, deriving our power solely

from Article III of the Constitution and from the legislative

acts of Congress [and], therefore cannot derive power to act

from the actions of the parties before us.” Harris, at *3

(citations omitted); Hertz Corp. v. Alamo Rent-A-Car, Inc.,

16 F.3d 1126, 1131 (11th Cir. 1994) (“Subject matter

jurisdiction can never be waived or conferred by the consent

of the parties.”) (citations omitted). We must assure ourselves

of jurisdiction, and have the obligation to inquire into

6. This principle is known as the Blackledge/Menna principle.

See Menna v. New York, 423 U.S. 61, 96 S. Ct. 241 (1975) (the

state may not convict a person of a charge that it cannot

constitutionally prosecute (double jeopardy grounds) regardless of

the establishment of factual guilt); Blackledge v. Perry, 417 U.S.

21, 30-31, 94 S. Ct. 2098, 2104 (1975) (plea of guilty does not

foreclose a subsequent challenge not to be haled into court when

initiation of proceedings operates to deny due process of law); see

also United States v. Broce, 488 U.S. 563, 574-75, 109 S. Ct. 757,

765 (1989) (discussing Blackledge/Perry but determining it did not

apply in that case).

16a

Appendix B

jurisdiction, whenever the possibility that jurisdiction does

not exist arises. /d., Fitzgerald v. Seaboard Sys. R.R., Inc.,

760 F.2d 1249, 1250 (11th Cir. 1985). The obligation to

inquire into the Court’s subject matter jurisdiction over

Alikhani’s indictment now falls upon this Court.

B. Alikhani’s Subject Matter Jurisdiction Claim

The gist of Alikhani’s petition is that the statutes and

regulations which Alikhani allegedly violated, as enumerated

in Count II of the indictment, do not extend to the conduct

of foreign nationals acting outside the United States, and

thus, this Court had no subject matter jurisdiction to

adjudicate him guilty. Further, Alikhani claims that because

he was not subject to the export control laws, he could not

lawfully be convicted of aiding and abetting a violation of

those laws. A careful review of the case law in this and other

circuits regarding the aiding and abetting statute, 18 U.S.C.

§ 2, reveals that at a minimum Alikhani was properly

convicted of aiding and abetting the violation of certain of

the export regulations upon which Count II is based. As such,

it is unnecessary to address the Court’s subject matter

jurisdiction with respect to each statute. Executive Order and

regulation cited in Count II. It is necessary, however, to

explain why the Court had subject matter jurisdiction over

Count II to the extent it charged Alikhani with aiding and

abetting violations of the underlying statutes, Executive

Orders and regulations.

17a

Appendix B

1. Relevant Provisions of Law Governing Trade

With Lybia

The various laws that Alikhani was charged with

violating in Count II form an intricate regulatory web. They

include the following statutes, Executive Orders, and

regulations promulgated by the Department of the Treasury:

a. International Emergency Economic

Powers Act

In 1977, Congress enacted the International Emergency

Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701, et seq.

Count II charges Alikhani with violations of § 17017 and

§ 1702* of the IEEPA. The IEEPA was enacted to extend to

7. “The authorities granted to the President by section 1702 of

this title may only be exercised to deal with an unusual and

extraordinary threat with respect to which a national emergency has

been declared. .. .” 50 U.S.C. § 1701(b).

8. “1702(a)(1) ... The President may, under such regulations

as he may prescribe, by means of instructions, licenses, or otherwise

(B) investigate, regulate, direct and compel, nullify,

void prevent or prohibit, any ... use, transfer,

withdrawal, transportation, importation, or exportation

of, or dealing in, or exercising any right, power, or

privilege with respect to, or transactions involving, any

property in which any foreign country or a national

thereof has any interest;

“by any person, or with respect to any property, subject to the

jurisdiction of the United States.”

ee

18a

Appendix B

peacetime emergencies the powers given to the President

during wartime under the Trading with the Enemies Act. See

50 U.S.C. App. § 1, et seg. In determining whether the IEEPA

operates extraterritorially to bring Alikhani within this

Court’s jurisdiction, the parties argue over the meaning of

the statute’s description of its application to “any person, or

with respect to any property, subject to the jurisdiction of

the United States.” § 1702(a)(1)(B). The undersigned finds

that the language “with respect to any property” gives the

President the power to regulate property subject to U.S.

jurisdiction including its use (or export) by persons operating

beyond the borders of the United States and its territories.

See United States v. McKeeve, 131 F.3d 1, 11 (1st Cir. 1997)

(finding irrelevant under § 1702 that co-conspirators were

not subject to U.S. jurisdiction where property at issue was

subject to the jurisdiction of the U.S.); see also Dames & Moore

v. Regan, 453 U.S. 654, 671 (1981) (pointing out that the

language of the IEEPA is “sweeping and unqualified’’). As

a practical matter, however, the IEEPA, § 1701 and § 1702,

merely empowered President Reagan to issue the relevant

Executive Orders from which the U.S. Treasury derived its

power to promulgate the Libyan Sanctions Regulations which

operate to criminalize Alikhani’s conduct. In any event, it is

clear that the Executive Branch had Congressional authority

to enact extraterritorial regulations in the event of a declared

national emergency pursuant to the IEEPA. Effectively, it is

the other violations of law which are being applied

extraterritorially to punish Alikhani here in the United States.’

9. Section 1705, under which Alikhani was also charged,

establishes penalties for violations of the IEEPA. However, by the

section’s own terms, violations of subsequently enacted regulations

are necessary before § 1705 operates at all.

19a

Appendix B

b. Executive Orders

The indictment charged Alikhani with violations of

Executive Orders 12543, 12730, and 12544. On January 7,

1986 President Reagan issued Executive Order No. 12543

thereby finding pursuant to IEEPA § 1701 that “the policies

and actions of the Government of Libya constitute an unusual

and extraordinary threat to the national security and foreign

policy of the United States and hereby declares a national

emergency to deal with that threat.” Under Section 1 of that

Order, President Reagan prohibited, in relevant part:

“(b) The export to Libya of any goods, technology ... or

services from the United States[.]” He further prohibited:

“(h) Any transaction by any United States person which

evades or avoids, or has the purpose of evading or avoiding,

any of the prohibitions set forth in this Order.”'® Finally,

Section 4 of the Order authorizes the Secretaries of Treasury

and State to take actions, including the promulgation of

regulations, as necessary to carry out the purposes of the

Order. It is under this authority that the Department of

Treasury promulgated the Libyan Sanctions Regulations.

The Court finds no language in § 1(b) of Executive Order

12543 which indicates that its application is limited to U.S.

persons as Alikhani argues. Further, although § 1(b) is silent

as to its extraterritorial effect, the Court infers that such a

use was intended from the use of limiting language in other

10. The Order defined the term “United States person” as “any

United States citizen, permanent resident alien, juridical person

organized under the laws of the United States or any person in the

United States.” It is clear that Alikhani does not fall into the

definition of “United States person.”

20a

Appendix B

portions of the Order not included in § 1(b). In several

sections and subsections, including for example § 1(h), the

Order specifically limits the relevant prohibitions to

transactions “by a United States person.” Section 1(b)

contains no such restriction. The Court additionally infers

the extraterritorial effect of § 1(b) from the Order’s purpose

'— the regulation of international transactions — and its

legislative history. See United States v. Baker, 609 F.2d 134,

136 (Sth Cir. 1980) (citing United States v. Bowman, 260

U.S 94, 97-98 (1922)).

Alikhani further argues that the Executive Order does

not apply to him because he did not “export” the goods from

the United States. An export, he argues, must result from an

act done by a U.S. person as defined in the Order. He goes

on to explain the definition of “export” and why he does not

fit into that definition. See Canton R.R. Co. v. Rogan, 340

U.S. 511, 515 (1951) (defining export as carrying or sending

abroad and import as bringing into the country). Regarding

this argument, the Court adopts the position of the Seventh

Circuit which stated: “The buyer-seller, importer-exporter

labels tend to lead the arguments down the road of semantics

rather than substance.” United States v. Beck, 615 F.2d 441,

450 (7th Cir. 1980).'' In any event, the Court need not resolve

this debate because, as explained below, Alikhani is guilty

of aiding and abetting the violation of Executive Order

12543, § 1(b) regardless of whether he actually exported

anything.

11. The Court addresses this issue in small part in its discussion

of the aiding and abetting statute infra at the last part of § I1.B.2.b.

2la

Appendix B

As to Executive Order 12544, which blocks all Libyan

Government property in the U.S. or held by U.S. persons,

the Court finds that it is inapplicable to the instant petition

and to the conduct to which Alikhani pled guilty in Count II

of the indictment. Similarly, Executive Order 12730, signed

by President Bush and also listed in Count II, continues the

state of national emergency with respect to Libya and

incorporates the Export Administration Act and other statutes

and Executive Orders as applicable to Libya. Thus, it appears

that this Order is also irrelevant to the instant petition, which

perhaps explains why it was not addressed at all by the parties

in their memoranda.

c. Libyan Sanctions Regulations

Count II next charges Alikhani with violations of five

Treasury Regulations promulgated as part of the “Libyan

Sanctions Regulations” under the authority granted to the

Secretary of the Treasury pursuant to the IEEPA and

Executive Order 12543: 31 C.F.R. §§ 550.202, 550.208,

550.209, 550.409 and 550.701. As an initial matter, the Court

finds § 550.209, which prohibits transactions involving

property in which the Government of Libya has an interest

and with respect to securities, wholly inapplicable to the facts

pled in Count II. Section 550.701 is also irrelevant to the

issue of subject matter jurisdiction as it sets forth the penalties

for violations of the Libyan Sanctions Regulations which,

in any event, are not challenged by Alikhani’s petition.

Similar to Executive Order 12543, § 550.202 prohibits

exports of goods, technology or services to Libya. The Court

has already explained in subsection “b,” supra, why this

22a

Appendix B

prohibition extends to persons outside the United States such

as Alikhani. Moreover, the Court is not persuaded by

Alikhani’s strict construction of the word “export,” and, even

if Alikhani was incapable of exporting under his definition

of the word, his conviction for aiding and abetting still stands.

See infra at § II.B.2.

Section 550.208 states that “[a]ny transaction for the

purpose of, or which has the effect of, evading or avoiding

any of the prohibitions set forth in this subpart is hereby

prohibited.” Alikhani argues, and the Government concedes,

that this section only applies to U.S. persons as defined in

the regulations. It is identical to § 1(h) of Executive Order

12543 without the qualifier “by any United States person”

contained in the Executive Order. The parties read this

omission as an oversight by Congress. As the applicability

of § 550.208 to Alikhani is not dispositive of the issues raised

by the Petition, the Court, despite doubts, will defer to the

parties.

Section 550.409 prohibits exports to third countries if

the exporter knows or has reason to know that the goods are

intended for transshipment to Libya. Under Alikhani’s own

admissions by pleading guilty, his actions fall within this

section assuming he actually exported. But for Alikhani’s

argument that he is not the “exporter,” he did transship the

goods to Libya via Germany. This is why, as explained

below, Alikhani falls within the purview of the aiding and

abetting statute, and why the Court, once again, need not

resolve the definition of “export” debate.

=

23a

Appendix B

2. The Aiding and Abetting Statute

Having explained the substantive laws and regulations

under which Alikhan! was charged, the Court now turns to

the applicability of the aiding and abetting statute to Alikhani.

The final statutory violation charged in Count II is of the

aiding and abetting statute (“the statute”):

§ 2. Principals

(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable

as a principal.

(b) Whoever willfully causes an act to be

done which if directly performed by him or

another would be an offense against the United

States, is punishable as a principal.

18 U.S.C. § 2. The focus of the parties memoranda has been

on subsection (b). It is the Government’s contention, as

alleged in Count II, that Alikhani caused the export of

technology to Libya in violation of the applicable statutes,

Executive Orders and regulations discussed above, and that

therefore, he is criminally liable for those acts just as if he

personally committed those crimes himself. Alikhani

recognizes the breadth of this statute but argues that there

are recognized exceptions within which he falls. As explained

below, the case law brings Alikhani’s conduct squarely

within the statute with respect to the relevant substantive

offenses charged in Count II, and none of the exceptions

proposed by Alikhani are apposite to this action.

24a

Appendix B

a. The law on aiding and abetting

Alikhani contends that he could not have “exported”

goods or technology from the United States because he was

outside the United States. Assuming arguendo that the term

“export” should receive the narrow construction advocated

by Alikhani and that, therefore, he could not possibly have

exported parts to Libya, his argument still fails. The law in

this and other circuits clearly provides that an individual need

not have the capacity to commit a crime in order to be guilty

of aiding and abetting. See, e.g., United States v. Tobon-

Builes, 706 F.2d 1092, 1099 (11th Cir. 1983) (a person with

no duty to disclose financial information or file currency

transaction reports can be found guilty under §2(b)); United

States v. Phipps, 81 F.3d 1056, 1061 (11th Cir. 1996) (citing

Tobon-Builes); United States v. Sans, 731 F.2d 1521, 1531

(11th Cir. 1984) (same). “It is well established that § 2(b)

was designed to impose criminal liability on one who causes

an intermediary to commit a criminal act, even though the

intermediary who performed the act has no criminal intent

and hence is innocent of the substantive crime charged[.]”

Tobon-Builes, 706 F.2d at 1099.'* Thus, Alikhani could still

12. As cited in Tobon-Builes, several circuits follow this rule.

See, United States v. Pereira, 202 F.2d 830, 836-37 (Sth Cir. 1953)

(applying § 2(b) in finding defendant liable as principal under

18 U.S.C. § 2314 for willfully causing innocent bank clerk to mail

into interstate commerce a fraudulently obtained check); United

States v. Ruffin, 613 F.2d 408, 412 (2nd Cir. 1979) (“It is .. . clear

that under 18 U.S.C. § 2(b) one who causes another to commit a

criminal act may be found guilty as a principal even though the

agent who committed the act is innocent or acquitted.”); United

(Cont’d)

25a

Appendix B

be liable for aiding and abetting the export even if he was

incapable of executing it himself.

With respect to Alikhani’s argument that he could not

have exported goods within the meaning of the Executive

Orders and Regulations from outside the United States

because he is not a “U.S. person,” Tobon Builes further

disposes of that concern. A person “who is incapable of

committing a substantive criminal offense if he acted alone

may nevertheless be liable as a principal where he willfully

causes the prohibited conduct [(e.g. export from U.S. to

Libya)] to be committed by intermediaries [(e.g. whoever

exported the goods from the U.S. to Alikhani)] who have

the capacity to commit the substantive criminal offense but

who lack the criminal intent to be guilty of that offense.”

706 F.2d at 1100; see also Ruffin, 613 F.2d at 412; Lester,

363 F.2d at 72-73 (under § 2(b) defendants liable for

conspiring to willfully cause police officers to act “under

color of state law” to deprive third party of civil rights

(18 U.S.C. § 242) even though police officers were found

innocent of any wrongdoing and defendants lacked legal

Capacity to act “under color of state law”).

(Cont'd)

States v. Catena, 500 F.2d 1319, 1323 (3rd Cir. 1974) (under § 2(b),

a person may be guilty of causing a false claim to be presented to

the United States even though he uses an innocent intermediary,

e.g., insurance carriers, to actually pass on the claims to the United

States); United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966),

cert. denied, 385 U.S. 1002 (1967); United States v. Inciso, 292

F.2d 374, 378 (7th Cir. 1961).

Fe eee a eT

26a

Appendix B -

This interpretation is further supported by § 2(b)’s

legislative history.'* The purpose of the 1951 Amendment

was “to ... make certain the intent to punish [persons

embraced within § 2]... , regardless of the fact that they

may be incapable of committing the specific violation.”

Tobon-Builes, 706 F.2d at 1100 (quoting 1951 U.S. Code

Cong. & Ad. News, at 2578, 2583). The Tobon-Builes court

expressed agreement with the Court in Ruffin, 613 F.2d at

413, that Congress amended § 2(b) “to enlarge the scope of

criminal liability under existing substantive criminal laws

so that a person who operates from behind the scenes may

be convicted even though he is not expressly prohibited

by the substantive statute from engaging in the acts made

criminal by Congress.” /d. (emphasis added). Thus, the “or

another” language extends criminal liability to defendants,

like Alikhani, who cause another, who may be innocent of

the substantive offense, to engage in conduct that would be

criminal if the principal (in this case Alikhani) had done the

act himself.

The court in United States v. Lester, 363 F.2d at 73,

provided a cogent analysis of the underlying principles

supporting the application of § 2(b) in a case analogous to

Alikhani’s:

It is but to quote hornbook law to say that in every

crime there must exist a union or joint operation

13. Prior to 1951, 18 U.S.C. § 2(b) provided: “Whoever

willfully causes an act to be done which if directly performed by

him would be an offense against the United States is also a principal

and punishable as such.” The words “by another” were added after

the words “by him” in 1951.

27a

Appendix B

of act, or failure to act, and intent. However, this

is far from suggesting that the essential element

of criminal intent must always reside in the person

who does the forbidden act. Indeed, the latter may

act without any criminal intent whatever, while

the mens rea — “wilfulness” — may reside in a

person wholly incapable of committing the

forbidden act. When such is the case, as at bar,

the “joint operation of act and intent” prerequisite

to commission of the crime is provided by the

person who willfully causes the innocent actor to

commit the illegal act. And in such a case, of

course, only the person who willfully causes the

forbidden act to be done is guilty of the crime.

Id. In the instant case, Alikhani admitted to his knowledge

of the Executive Orders and Regulations and admitted that

he intended to effect the export of embargoed goods and

technology to Libya. Further, there is no question that he

purchased goods and equipment with funds that he had wired

into the U.S. and which goods he caused to be shipped to

Germany for transshipment to Libya. The export of these

goods undoubtedly violated Executive Order 12543 and

various Regulations. Thus, by operation of § 2(b), Alikhani’s

criminal intent to violate the Libyan Sanctions Regulations

and Executive Order 12543 is joined together with the

conduct of those who participated in the exportations (i.e.

capacity to commit violations of the regulations) to constitute

a violation of law as charged in Count II of the indictment.

See id. at 1101.

28a

— Appendix B

Alikhani makes much of the Government’s failure to

name the principal who Alikhani allegedly aided and abetted.

This determination, however, is unnecessary to sustain

Alikhani’s conviction pursuant to § 2(b). This Circuit has

held that: “In order to sustain the conviction of a defendant

who has been charged as an aider or abetter, it is necessary

that there be evidence showing an offense to have been

committed by a principal and that the principal was aided or

abetted by the accused, although it is not necessary that

the principal be convicted or even that the identity of the

principal be established.” United States v. Matassini, 565

F.2d 1297, 1314 (Sth Cir. 1978) (emphasis supplied).

Alikhani also seems to be arguing that he could not aid

and abet the actual exporters, who the undersigned presumes

is either United Technologies or ITR, because they are

government agents. That argument, however, has been

rejected by several circuits which have upheld convictions

for aiding and abetting where the underlying criminal activity

was undertaken by government agents. See United States v.

Ngo, 141 F.3d 1182 (9th Cir. 1998) (unpublished decision)

(upholding conviction for aiding and abetting the possession

and uttering of counterfeit securities committed by

government agents); United States v. Aguilar, 883 F.2d 662,

688 (9th Cir. 1989) (en banc) (upholding conviction for

aiding and abetting transportation of illegal aliens despite

fact that government agents transported the aliens).'

14. See also United States v. Meinster, 619 F.2d 1041, 1046

(4th Cir. 1980) (upholding conviction for aiding and abetting drug

smuggling and rejecting appellants’ claim that “the absence of a

guilty principle precludes their conviction on aiding and abetting

(Cont’d)

29a

Appendix B

b. Alikhani’s “exceptions” to the application

of § 2(b)

Alikhani offers two primary cases which allegedly

support his contention that pursuant to the “Wharton Rule”

he could not be convicted for aiding and abetting violations

of the relevant portions of Executive Order 12543 and the

_ Regulations. Alikhani first relies on Gebardi v. United States,

287 U.S. 112 (1932), in which the Supreme Court reversed

the conviction of a female defendant who allegedly conspired

to violate the Mann Act by consenting to her own

transportation across state lines.'* The Mann Act, which

(Cont’d)

charges”); United States v. Ordner, 554 F.2d 24, 29 (2d Cir. 1977)

(upholding conviction for aiding and abetting unlawful possession

and transfer of firearms by government agents because “the guilt or

innocence of the intermediary under a § 2(b) charge is irrelevant”);

United States v. Gould, 419 F.2d 825, 826 (9th Cir. 1969) (per

curiam) (upholding conviction for aiding and abetting the smuggling

of marijuana even though there was no “guilty principle” because

the drugs were actually “smuggled” over the border by a government

agent); see also United States v. Pardue, 983 F.2d 843 (8th Cir.

1993) (upholding conviction for aiding and abetting interstate travel

in connection with murder for hire where defendant drove across

state line to mail cash to government agent posing as contract killer);

Haynes v. United States, 319 F.2d 620, 622 (Sth Cir. 1963) (rejecting

theory that evidence was insufficient to uphold conviction because

marijuana was brought in to U.S. by government agents which is

not a crime).

15. Gebardi involves the general conspiracy statute as opposed

to the aiding and abetting statute. The two, however, are often viewed

as analogous because “much of the same evidence that will support

(Cont’d)

30a

Appendix B

prohibited the transportation of women across state lines for

immoral purposes, did not criminalize the woman’s conduct

who is being transported. Instead, the government prosecuted

the woman for conspiracy to violate the Mann Act. The Court

recognized that a woman can be convicted for conspiracy

despite her incapacity to commit a substantive offense. /d.

at 120-21. The Court determined, however, that because a

violation of the Mann Act required the agreement of the

woman, by protecting women from criminal prosecution

under the statute Congress manifested an affirmative

legislative policy “to leave her acquiescence unpunished.”

Id. at 123.

The Fifth Circuit applied these principles in United

States v. Castle, 925 F.2d 831 (Sth Cir. 1991), in which the

court held that, pursuant to Gebardi, foreign officials may

not be prosecuted for conspiracy to violate the Foreign

Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-1,

78dd-2. In Castle, the alleged conspiracy involved two

Americans bribing two Canadian officials. Only the

Americans’ conduct was punishable under the FCPA, so the

government charged the Canadians with conspiracy. The

court concluded that it was Congress’s clear intention not to

prosecute foreign officials but only U.S. entities and citizens.

925 F.2d at 834.

(Cont’d)

a conviction of conspiracy will also support a conviction of aiding

and abetting.” United States v. Long, 866 F.2d 402, 407 (11th Cir.

1989); see also United States v. Falletta, 523 F.2d 1198, 1199-2000

(Sth Cir. 1975) (recognizing that the logic of Gebardi has equal

force in either the conspiracy or aiding and abetting context).

3la

Appendix B

These cases involve the “community of purpose of two

persons” rule, also known as the Wharton Rule, which states

that when a crime is of such a nature as to necessarily require

the participation of two persons for its commission, an

agreement by two persons to commit the crime cannot be

prosecuted as a conspiracy. Gebardi, 287 U.S. at 121-22;

1 R. Anderson, Wharton’s Criminal Law and Procedure s 89,

p. 191 (1957); see also Iannelli v. United States, 420 U.S.

770, 773 n.5 (1975); United States v. Brenson, 104 F.3d 1267,

1283 (11th Cir. 1997). The rule is not absolute and is

inapplicable, for example, where the substantive crime can

be committed by a single individual. /d. at n.6; Falletta, 523

F.2d at 1200. The Mann Act contemplated that both the man

and the woman were necessary to the transaction. “[W]hen

the Mann Act and the conspiracy statute came to be construed

together, as they necessarily would be, the same participation

whick. the former contemplates as an inseparable incident of

all cases in which the woman is a voluntary agent at all, but

does not punish, was not automatically to be made punishable

under the latter.” Gebardi, 287 U.S. at 123.

The Government argues simply, and without further

explanation, that a single individual can violate the Libyan

Sanction Regulations, thus the principles espoused in

Gebardi do not apply. Alikhani responds that the criminal

act in the subject regulations is export which necessarily

requires the presence of at least two persons: a U.S.-based

exporter and a foreign-based importer (such as Alikhani)

whose purchase order “causes” the export. Although

Alikhani’s argument has a certain logical appeal and is not

32a

Appendix B

without respectable supporting authority,'* the law involving

the Wharton or Gebardi Rule has evolved beyond Alikhani’s

proposed application.

In United States v. Falletta, 523 F.2d 1198 (Sth Cir.

1975), a case cited by Alikhani, the former Fifth Circuit

expressed reservations about this rule which, as it stated,

“amounts at best to a weak presumption about legislative

intent. Other factors can be invoked to the contrary, and we

find that contrary and overriding indications are present in

this case.” Falletta, 523 F.2d at 1200; see also United States

v. Collins, 779 F.2d 1520, 1527 (11th Cir. 1986) (recognizing

that the former Fifth Circuit did not generally favor

Wharton’s Rule and that the Supreme Court stated that it

has “current vitality only as a judicial presumption, to be

applied in the absence of legislative intent to the contrary.”

Tannelli, 420 U.S. at 782).'’ In Falletta, the court applied

16. See, e.g., Castle, 925 F.2d 831; United States v. Nasser,

476 F.2d 1111 (7th Cir. 1973) (under statute prohibiting attorney

from handling case on which he previously worked as a government

employee, client cannot be prosecuted as a conspirator for bringing

case to attorney); Nigro v. United States, 117 F.2d 624 (8th Cir.

1941) (purchaser of narcotics cannot be prosecuted for conspiracy

to violate federal statute prohibiting sale of narcotics).

17. The Falletta court expressed the view that there was no

distinction between the application of the Wharton Rule to aiding

and abetting cases and conspiracy cases from which the Rule arose.

523 F.2d at 1199-1200. Over time, however, the interpretation of

the Wharton Rule in the case law has evolved in conjunction with

the conspiracy statute in a manner inconsistent with the aiding and

abetting statute. See, generally, lannelli v. United States, 420 U.S.

(Cont'd)

33a

Appendix B

the aiding and abetting statute to a defendant who furnished

a firearm to a person (or felon) prohibited by 18 U.S.C.

§ 1202 from receiving it. Jd. The court determined that

Congress’s focus was to restrict the possession of firearrns

by certain groups of people, and, based on this interpretation

of the legislative intent, the court rejected Gebardi and

upheld the defendant’s conviction for aiding and abetting a

person in the prohibited receipt of a firearm. /d. at 1200-01.

Using a similar analysis of legislative history, the

Seventh Circuit has rejected the very argument raised by

Alikhani in a factually similar case. See United States v. Beck,

(Cont'd)

770 (1975) (“[a]n agreement by two persons to commit a particular

crime cannot be prosecuted as a conspiracy when the crime is of

such a nature as to necessarily require the participation of two

persons for its commission.”).

The Eleventh Circuit recognizes the Supreme Court’s

suggestion in Jannelli that a court look at the elements of both the

substantive offense and the conspiracy charge and if one requires

proof of a fact that the other does not, then there is no violation of

the Wharton Rule. United States v. Brenson, 104 F.3d 1267, 1283

(11th Cir. 1997) (when dealing with the crime of disclosure of grand

jury information, an individual could violate the statute “singularly

by simply providing such information to another individual when

such disclosure would have the probable effect of impeding the due

administration of justice, without any agreement with the second

person.”) Thus, a violation of the Wharton Rule requires

consideration of the elements of a conspiracy charge which usually

refers to the necessity of an agreement between two or more persons

that may or may not be part of the substantive offense. The aiding

and abetting statute requires no such agreement or additional element

beyond the elements of the substantive offense.

34a

Appendix B

615 F.2d 441 (7th Cir. 1980). In Beck, the defendant was

found guilty of aiding and abetting the illegal export of arms

and aiding and abetting the filing of false customs export

declarations. The defendant, just like Alikhani, ordered and

purchased the illegal merchandise. As in the instant case,

the applicable regulation which Beck violated proscribed

“export or attempt to export from the United States”

particular items. 615 F.2d at 450; 22 C.F.R. § 127.01. Beck

argued, and the trial court accepted, that he was not the

exporter but the purchaser and that he did not aid an illegal

export but only arranged a legal import. Jd. Thus, Alikhani

is of the same mind as was Beck in his argument before the

Seventh Circuit.

The Seventh Circuit wholly rejected this argument as

“semantics rather than substance.” Jd. By analogy, the court

pointed out that a “purchaser of stolen goods is not liable as

an alder and abetter of the theft because of his status as a

buyer, but because he enters the plan too late.” /d. (citing

United States v. Varelli, 407 F.2d 735 (7th Cir. 1969)). The

Seventh Circuit explained, “[t]he gravamen of the offense is

the theft, not what happens to the goods afterwards. If the

defendant does not aid the theft itself, he does not commit

an act that aids the commission of the offense.” Jd.

As explained above, Executive Order 12543 and the

Regulations proscribe the “export,” that is “the movement

of goods across the international border.” Jd. Like Beck,

Alikhani did not simply purchase goods in Germany or

Cyprus which had already been exported. He was the brains

behind the whole export plan. He masterminded the export

of the goods to Germany for transshipment to Libya. He

35a

Appendix B

bragged of his contravention of the U.S./Libya embargo to

the undercover agents and how he would mask the true

destination of the oil machinery and parts to fool U.S.

officials. He transferred money into the United States to pay

for the parts, negotiated the terms of the exportations and

entered into contractual relations with the Libyan government

to act as an intermediary between it and legitimate U.S.

corporations because Libyan corporations could not legally

obtain parts for its oil machinery. Alikhani consciously

assisted the transportation of the goods from the United States

to Libya. To use the Beck couri’s phrase, “[h]e did not enter

the plan too late, but did so right on time.” Jd. Further, any

issue of intent which was presented to the Beck court does

not exist here because Alikhani pled guilty and admitted to

his knowledge that the goods at issue could not legally be

exported to Libya. Thus, this Court embraces the rationale

of the Seventh Circuit and in Falletta in rejecting Alikhani’s

contention that he is excepted from 18 U.S.C. § 2 because

he was not an “exporter.”

c. Policy Rationale

The Court hastens to point out that this application of

§ 2(b) in conjunction with the substantive violations charged

is wholly consistent with the purposes behind the IEEPA,

Executive Order 12543 and the Libyan Sanctions

Regulations. The IEEPA expressly conferred upon the

President the power to prohibit commercial transactions

involving certain foreign nations “with respect to any

property . . . subject to the jurisdiction of the United States.”

50 U.S.C. § 1702(a)(1); McKeeve, 131 F.3d at 11. With that

authority, President Reagan recognized that Libya posed a

36a

Appendix B

threat to our national security, thereby launching a

comprehensive prohibition, among other things, against trade

with Libya or involving exports to Libya. See Executive

Order 12543. It is clear from these authorities, as well as the

Libyan Sanctions Regulations which followed, that it was

Congress’s and the Executive Branch’s will to prevent U.S.

goods and technology from reaching Libya. To permit

Alikhani to escape liability here would amount to condoning

deceptive schemes designed to circumvent the sanctions

imposed by the United States government against Libya.

C. Alikhani’s Constitutional Claim

As a final matter, Alikhani briefly contends that the

export control law would be unconstitutional if applied to a

non-U.S. person such as himself.'* The constitutional basis

for this argument is the void for vagueness doctrine. Alikhani

argues that it is unclear on the face of the statutes what acts

are prohibited and to whom the statutes/regulations apply,

and therefore, they violate the due process clause of the

Constitution. See Maynard v. Cartwright, 486 U.S. 356

(1988). Alikhani has failed to convince this Court that the

IEEPA, Executive Order 12543 of the applicable sections of

the Libyan Sanctions Regulations are vague or ambiguous.

In the absence of any meritorious argument by Alikhani on

this issue, the Court need not go any further with respect to

this undeveloped argument. It is abundantly clear what is

prohibited by the regulations, and Alikhani’s statements,

admissions and conduct make clear that he was fully aware

that he was violating or attempting to circumvent U.S. law.

18. He makes a similar argument with respect to the money

laundering statute which has no relevance to Count II.

eames et monn n tC reerntnc eT! niente nr ener emi wurst OM

37a

Appendix B

Ill. CONCLUSION

Based on the foregoing, it is hereby

ORDERED AND ADJUDGED that Magistrate Snow’s

February 27, 1997 Report and Recommendation is

AFFIRMED IN PART AND REVERSED IN PART. It is

further

ORDERED AND ADJUDGED that the instant petition

is DENIED AND DISMISSED. This action is hereby

CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida,

this 14 day of September, 1998.

s/ Ursula Ungaro-Benages

URSULA UNGARO-BENAGES

UNITED STATES DISTRICT

JUDGE

38a

APPENDIX C — PER CURIAM ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DENYING PETITION FOR

REHEARING DATED AND FILED JUNE 19, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-5546-GG

HOSSEIN ALIKHANI, a.k.a. Hossein Alikani,

a.k.a. J.A. Faram,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion iit Ce. 19 Fae).

Before: COX and DUBINA, Circuit Judges and KRAVITCH,

Senior Circuit Judge. _

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

39a

Appendix C

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing

En Banc are DENIED.

ENTERED FOR THE COURT:

s/ E.R. Cox

UNITED STATES CIRCUIT JUDGE