In United States v. Al Jaberi, No. 22-12852 (Apr. 5, 2024) (Lagoa, Brasher, Tjoflat), the Court affirmed Mr. Al Jaberi’s convictions and sentences.

Mr. Al Jaberi was found guilty of smuggling in violation of 18 U.S.C. § 554(a) by willfully and knowingly attempting to export nine firearms from the United States, contrary to 18 U.S.C. § 922(e) and 13 U.S.C. § 305(a)(1); knowingly delivering firearms to a common carrier without giving the carrier written notice that the firearms were being transported or shipped, in violation of 18 U.S.C. § 922(e); and knowingly causing a freight forwarder to submit false and misleading export information through a Shippers Export Declaration and an Automated Export System by falsely declaring the contents of a shipment to be only spare auto parts, in violation of 13 U.S.C. § 305(a)(1).

On appeal, he first argued that there was insufficient evidence of guilt because law enforcement neither surveilled nor investigated the location where the shipping container was loaded; failed to offer evidence about any communications between him and anyone in Iraq about the firearms; and government witnesses offered inconsistent testimony about the location of the box containing the firearms.  The Court disagreed, reviewing his arguments for plain error because although he moved for a judgment of acquittal, he did so on different grounds than those raised on appeal.

He also argued that failure to notify a common carrier and submitting false or misleading export information are both lesser included offenses of smuggling and therefore asserts that his convictions violate the Double Jeopardy Clause.  The Court disagreed, finding the error not plain, and noting that a review of the three statutes under which Mr. Al Jaberi was convicted reveals that each statute entails different elements from the others.

Next, he argued that his due process rights were violated because the Government failed to correct false witness testimony and made prejudicial statements during opening and closing arguments.  The Court, reviewing for plain error, disagreed.

Finally, he argued that his sentences are procedurally and substantively unreasonable because they subjected him to double jeopardy and were greater than necessary.  The Court found his sentence procedurally reasonable because there was no double jeopardy violation.  The Court also found his sentence to be substantively reasonable because the district court did not fail to consider relevant factors due significant weight, give significant weight to an improper factor, or clearly err in considering the proper factors.