# Petition for Writ of Certiorari — Alikhani v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 929

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1803%3A1. Public record. Not legal advice.