United States v. Soussi

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 16 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-1251

FIKRI SOUSSI,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 92-CR-85-N)

James C. Murphy (John W. Suthers, United States Attorney, and James A.
Allison, Assistant United States Attorney with him on the brief), Assistant United
States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Vicki Mandell-King (Michael G. Katz, Federal Public Defender, with her on the
briefs), Assistant Federal Public Defender, Denver, Colorado, for Defendant-
Appellant.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.

BRORBY, Senior Circuit Judge.
 Fikri Soussi appeals his conviction for wilfully, knowingly, and unlawfully

participating in a transaction involving the export of goods from the United States

to Libya in violation of 50 U.S.C. §§ 1702 and 1705(b), otherwise known as the

International Emergency Economic Powers Act. We affirm the conviction.

BACKGROUND

Mr. Soussi was born in Benghazi, Libya, but has since become a

naturalized United States citizen. He is the president and sole employee of Oasis

International, Inc., an export company located and incorporated in Colorado

(“Oasis Colorado”).

In early 1991, Mr. Soussi, acting on behalf of Oasis Colorado, requested

price quotations from foreign trailer manufacturers for a shipment of fifty trailers

to Benghazi, Libya. Around this same time, Mr. Soussi prepared a price quotation

for Mohamed Buzied, detailing the cost of different trailer models to be shipped

to Benghazi, Libya. Mr. Soussi also received an order of “50 [trailers] to

Benghazi” from Zoo Park-Benghazi in March 1991.

In May that same year, Mr. Soussi began soliciting price quotes from

United States manufacturers for the purchase of fifty trailers. Mr. Soussi gave

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each manufacturer different information about where the trailers would be

shipped, specifying Egypt, Saudi Arabia, or Kuwait. He asked two manufactures

if the trailers could be shipped without any markings revealing the manufacturer’s

origin.

Mr. Soussi also asked at least one United States manufacturer the price of

air conditioners for the trailers. The manufacturer responded by sending Mr.

Soussi a fax listing the price of installed and uninstalled air conditioners. This

fax was later in Mr. Soussi’s possession, with the handwritten words “to Libya”

on it. The manufacturer testified the words were not on the fax when he sent it to

Mr. Soussi.

Ultimately, Mr. Soussi purchased fifty trailers from Dutchmen

Manufacturing (“Dutchmen”), in Goshen, Indiana. Although Mr. Soussi told

Dutchmen that Saudi Arabia or Egypt was the final destination of the trailers, the

purchase order only required Dutchmen to deliver the trailers to Euram Sales

Corporation in Baltimore. Mr. Soussi’s early correspondence to Dutchmen was

written using letterhead with the name Oasis Colorado. However, the purchase

order for the trailers did not mention Mr. Soussi or the Colorado corporation.

Instead, the purchase order listed S. Ameri, with Oasis International [Guernsey],

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Limited, Abu Dhabi, United Arab Emirates. “S. Ameri” apparently refers to Sar

Ameri, who is the wife of Mr. Soussi’s brother, Mosadak Soussi. Mosadak Soussi

owns Oasis Oilfields, in Abu Dhabi, United Arab Emirates (“Oasis Oilfields”).

Oasis Oilfields services oilfields with chemicals and spare parts. In order to

obtain more competitive pricing for Oasis Oilfields, Mosadak Soussi also

incorporated Oasis International [Guernsey] Limited (“Oasis UK”). Mosadak

Soussi’s businesses were completely separate from Fikri Soussi’s Oasis Colorado.

Dutchmen prepared an invoice for the trailers and sent it to Fikri Soussi. A

few weeks later, Mr. Soussi called Dutchmen and asked it to change the invoice

to show the purchaser as Oasis UK. Dutchmen asked Mr. Soussi to verify Oasis

UK’s address. Mr. Soussi complied by faxing a sheet of letterhead from his

Colorado office with the name Oasis UK. After Dutchmen had shipped the

trailers, it issued Mr. Soussi an invoice listing Oasis UK as the purchaser.

Dutchmen never dealt with anyone other than Fikri Soussi.

After the trailers arrived in Baltimore, Maersk Line shipped them to La

Spezia, Italy. The bill of lading listed Euram Sales as the shipper but did not

specify a receiving party. It did, however, identify Oasis UK as the party to be

notified when the shipment arrived in Italy. The bill of lading also contained a

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clause stating: “These commodities licensed by U.S. for ultimate destination

Italy. Diversion contrary to U.S. law prohibited.”

When questions developed over some of the shipping charges on the bill of

lading, Fikri Soussi called Maersk Line. He identified himself as being with

Oasis and said he was the shipper on the bill. The representative form Maersk

Line was initially reluctant to discuss the shipment with Mr. Soussi because the

bill of lading did not show Mr. Soussi as the shipper. However, after noting

Oasis UK was the party to be notified, and assuming Mr. Soussi was affiliated

with Oasis UK, the representative asked Mr. Soussi to send him a fax detailing his

specific concerns. Mr. Soussi complied, sending a fax on Oasis Colorado

letterhead from a Colorado number. Mr. Soussi’s questions about the charges

were eventually resolved.

While the trailers were in La Spezia, a representative from a different

shipping company presented documents to Italian Customs showing it intended to

ship the trailers to Benghazi, Libya. One of the documents was an invoice for

sale of the trailers by Oasis UK to Zoo Park in Benghazi, Libya. Before the

trailers were shipped, United States Customs received a tip the trailers were

destined for Libya. Consequently, Customs detained the trailers.

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 After Customs detained the trailers, a United States Customs agent received

a call from a representative of Euram Sales, the shipper mentioned on the bill of

lading. The Euram representative gave the agent the name Marino Torti. Mr.

Torti told the agent he was acting on behalf of Oasis UK and Oasis Oilfields. He

confirmed the trailers were going to be shipped to Libya. Because Customs

officials maintained the trailers could not legally be sent to Libya, Mr. Torti

searched for alternative buyers in other countries. During this time, Fikri Soussi

met with Mr. Torti in Milan, Italy to determine whether the trailers could be

shipped to Egypt. Eventually the trailers were shipped to Egypt.

In connection with the detention, United States Customs conducted a

thorough investigation into Mr. Soussi, Oasis Colorado, and Oasis UK.

Investigators learned Mr. Soussi’s then girlfriend designed the Oasis UK

stationary Mr. Soussi used when Dutchmen requested Mr. Soussi to confirm Oasis

UK’s address. The stationary was printed in Boulder, Colorado. Upon calling the

telephone number for Oasis UK, investigators reached Ria Brothers, an English

company that represents foreign corporations. Ria Brothers told the investigators

Oasis UK was “inactive” and they did not have any records for Oasis UK.

Investigators examined Mr. Soussi’s telephone records but did not find any calls

placed to the Oasis UK number.

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 Unites States Customs agents arrested Mr. Soussi and charged him with

willfully, knowingly, and unlawfully participat[ing] in a transaction
involving the purchase of 50 [trailers] manufactured in the United
States and their export from the United States with the ultimate
intended destination of Libya, and this transaction had the purpose of
evading and avoiding the prohibition of the exportation of goods
from the United States to Libya.

Mr. Soussi was also charged with conspiring to commit the substantive offense.

After the prosecutor’s case-in-chief, the district court granted a judgment of

acquittal on the conspiracy count. Ultimately, a jury convicted Mr. Soussi of the

substantive count.

DISCUSSION

The International Emergency Economic Powers Act, under which Mr.

Soussi was convicted, authorized the President “to deal with any unusual and

extraordinary threat, which has its source in whole or substantial part outside the

United States, to the national security, foreign policy, or economy of the United

States, if the President declares a national emergency with respect to such threat.”

50 U.S.C. § 1701(a)(1991). 1

1
The International Emergency Economic Powers Act has been amended
since 1991. However, we apply the law at the time Mr. Soussi committed the
crime.

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 Pursuant to the International Emergency Economic Powers Act, the

President issued Executive Order No. 12,543. It prohibited “[t]he export to Libya

of any goods, technology (including technical data or other information) or

services from the United States.” Exec. Order No. 12,543 § 1(b), 3 C.F.R. 181

(1986). The Order also prohibited “[a]ny 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.” Id., § 1(h).

Through the Executive Order, the President authorized the Secretary of

Treasury to promulgate rules and regulations to carry out the purpose of the

Executive Order. Id., § 4. These regulations closely followed the Executive

Order. They provided “[e]xcept as authorized, no goods, technology (including

technical data or other information) or services may be exported to Libya from the

United States.” 31 C.F.R. § 550.202 (1991). Like the Executive Order, the

regulations prohibited “[a]ny transaction for the purpose of, or which has the

effect of, evading or avoiding any of the prohibitions set forth in [the

regulations].” 31 C.F.R. § 550.208 (1991).

The International Emergency Economic Powers Act itself provided the

penalty for failing to comply with the Executive Order or Department of Treasury

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regulations. It stated: “Whoever willfully violates any license, order, or

regulation issued under this chapter shall, upon conviction, be fined not more than

$50,000, or, if a natural person, may be imprisoned for not more than ten years, or

both.” 50 U.S.C. § 1705(b) (1991).

Mr. Soussi offers six reasons why his conviction should not be sustained

under the International Emergency Economic Powers Act, Executive Order

12,543, and related regulations. We reject each of his arguments in turn.

I. Effect of Trailers Never Entering Libya

Mr. Soussi first argues, since the trailers never entered Libya, his actions

amount to no more than an attempt to export trailers to Libya. He claims his

“conviction cannot be sustained where the evidence proved no more than an

attempt, and neither the federal statute, 50 U.S.C. § 1705(b), at the time of the

offense, nor the executive order and regulations, include attempt to export to

Libya as a crime.”

After conducting a de novo review of the International Emergency

Economic Powers Act, see United States v. Hall, 20 F.3d 1084, 1088 (10th Cir.

1994), we reject Mr. Soussi’s argument. The 1991 statute clearly criminalizes any

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violation of orders or regulations issued under the Act. 50 U.S.C. § 1705(b)

(1991) (“Whoever wilfully violates any license, order, or regulation issued under

this chapter ... may be imprisoned for not more than ten years.”). The Executive

Order prohibits “[a]ny 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.” Exec. Order No. 12,543 §1(h), 3 C.F.R. 1181 (1986). The

regulations prohibit “[a]ny transaction for the purpose of, or which has the effect

of, evading or avoiding any of the prohibitions set forth in [the regulations].” 31

C.F.R. § 550. 208 (1991). The evidence demonstrated Mr. Soussi wilfully

engaged in transactions for the purpose of evading or avoiding the ban on exports

to Libya. 2 Since engaging in the transactions alone was prohibited conduct, Mr.

Soussi’s conduct cannot fairly be categorized as an attempt.

Mr. Soussi offers several arguments in hopes of persuading us to give less

than full weight to the language of the Executive Order and regulations. He

claims “the language ‘any transaction which evades or avoids,’ like the statute,

contemplates a completed or successful evasion or avoidance.” He believes the

language in the Executive Order was only meant to define the specific intent

2
The weight of evidence against Mr. Soussi is fully discussed in Part III of
this opinion.

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necessary to violate the export ban. Mr. Soussi does not provide, nor can we find,

any support for this argument.

Mr. Soussi next argues “the language of the Executive Order cannot

proscribe an attempt where the statute itself does not.” Mr. Soussi appears to

argue that if the Executive Order prohibits his conduct, then the Order went

beyond the power delegated to the President in the Emergency Economic Powers

Act. We disagree with Mr. Soussi. Under the Act, “[t]he President’s authority is

limited to meeting a foreign threat ‘to the national security, foreign policy or

economy of the United States,’ that is ‘unusual and extraordinary,’ and only then

if he is able to declare the threat a ‘national emergency.’” United States v. Arch

Trading Co., 987 F.2d 1087, 1093 (4th Cir. 1993) (citing 50 U.S.C. § 1701).

Subject to these limitations, the Act grants the President authority to define

criminal conduct. See 50 U.S.C. § 1702. We conclude prohibiting transactions

designed to avoid the Libyan export ban falls well within the authority delegated

to the President by Congress.

Mr. Soussi also calls our attention to a 1996 amendment to the penalty

section of the International Emergency Economic Powers Act. The Act now

reads: “Whoever willfully violates, or willfully attempts to violate, any ...

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regulation issued under this chapter ... may be imprisoned for not more than ten

years.” 50 U.S.C. § 1705(b) (2002) (emphasis added). Thus, Mr. Soussi argues

“there would be no need to have amended the statute if the language ... contained

in the Executive Order and [31 C.F.R.] § 550.208, were sufficient to cover an

attempt.” In support of his position, Mr. Soussi directs us to a small piece of

congressional testimony. The testimony states: “During the course of many

investigations, a loophole in [the Act] has been identified: parties that attempt to

export a commodity to a ‘sanctioned’ country but fail, for whatever reason,

including interception of the shipment prior to entering the export stream, do not

violate [the Act].” Weapons Proliferation Staff Statement (Minority Staff),

Hearings on Global Proliferation of Weapons of Mass Destruction: Illicit

Trafficking in Nuclear Materials, Before the U.S. Senate Permanent

Subcommittee on Investigations, 104th Cong. (1996), available at 1996 WL

7137464. Consequently, Mr. Soussi asks us to conclude he did not violate the Act

because his actions occurred before the words “or willfully attempts to violate”

were added.

Mr. Soussi’s argument, although facially persuasive, again misses the mark.

Even assuming Mr. Soussi’s morsel of legislative history was sufficient to show

an attempt to export goods to Libya was not illegal in 1991, we must emphasize

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Mr. Soussi was not charged with attempting to export goods to Libya. Mr. Soussi

was charged with, and convicted of, wilfully, knowingly, and unlawfully

participating in transactions with the purpose of evading and avoiding the Libyan

export ban. The Executive Order and related regulations, under specific

Congressional authority, prohibited this conduct in 1991 before Congress

amended the International Emergency Economic Powers Act in 1996. We must,

consequently, conclude Mr. Soussi’s conduct was prohibited in 1991, even though

the trailers never actually reached Libya.

II. Constitutionality of Executive Order and Related Regulations

Mr. Soussi next argues “[t]he Executive Order and related regulations are

unconstitutionally vague as applied to [him].” He asserts the Executive Order

does not clearly prohibit a United States citizen from helping a foreign company

export goods from the United States to Libya. He also claims the regulations are

ambiguous concerning an exception to the export ban when the goods “come to

rest” in a third country.

Because whether the Executive Order and related regulations are vague is a

question of law, we apply a de novo standard of review. United States v. Agnew,

931 F.2d 1397, 1503 (10th Cir. 1991). According to the Supreme Court, “a penal

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statue [must] define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461

U.S. 352, 357 (1983). “That the government might, without difficulty, have

chosen clearer and more precise language equally capable of achieving the end

which it sought does not mean that the [regulations] which it in fact drafted [are]

unconstitutionally vague.” United States v. Hescorp, Heavy Equip. Sales Corp.,

801 F.2d 70, 77 (2d Cir. 1986) (alterations in original; quotation marks omitted).

Instead, an executive order and regulations are unconstitutionally vague only if

they subject a potential defendant “‘to some risk or detriment without giving him

fair warning of the nature of the proscribed conduct.’” Id. (quoting Rowan v.

United States Post Office Dep’t, 397 U.S. 728, 740 (1970)).

A. United States Citizens Aiding Foreign Corporations

Although Mr. Soussi recognizes the Executive Order “prohibits any

transaction by a United States person that ‘evades or avoids, or has the purpose of

evading or avoiding,’” the export ban, Mr. Soussi believes “the Order does not

clearly prohibit participation by a United States person in a transaction in which a

foreign company exports United States goods to Libya.” (Emphasis in original.)

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 We conclude the Executive Order and related regulations clearly prohibited

Mr. Soussi’s conduct. They are not unconstitutionally vague. We again stress

Mr. Soussi was not charged with, or convicted of, exporting trailers to Libya. He

was convicted of engaging in transactions which had the purpose of evading or

avoiding the export ban. The Executive Order and regulations specifically

prohibited transactions designed to evade or avoid the Libyan export ban. Exec.

Order No. 12543, 3 C.F.R. 181 (1986); 31 C.F.R. § 550.208 (1991). Mr. Soussi

engaged in transactions designed to evade the export ban by making it look as

though a foreign company was the exporter, when in fact, a United States citizen

and his domestic company were the driving forces behind the transactions. This

conduct was clearly prohibited by the Executive Order and related regulations.

B. Exported Goods Transformed or Coming to Rest in a Third
Country

Mr. Soussi also asks us to consider what he calls an ambiguity in the

regulations designed to address instances where goods are exported from the

United States to a third country before being shipped to Libya. According to Mr.

Soussi, “Section 550.409(a), 31 C.F.R., states that such export to a third country

is prohibited where the goods do not come to rest in a third country and are not

substantially transformed or incorporated into manufactured products.”

(Emphasis in original.) “In contrast,” Mr. Soussi argues “subsection (d) states that

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such exports are not prohibited if the goods come to rest in a third country or are

substantially transformed or incorporated into manufactured products.”

(Emphasis in original). Mr. Soussi believes, because the conjunctive “and” was

used in subsection (a) and the disjunctive “or” was used in subsection (d), the

regulations are vague and did not give “notice of [the] proscribed conduct.”

After reviewing the regulations and arguments posed by Mr. Soussi, we

conclude there is no ambiguity. It is useful first to consider the text of the two

subsections. Subsection (a) provides:

Exports of goods or technology ... from the United States to third
countries are prohibited if the exporter knows, or has reason to know,
that:

... The goods ... are intended for transshipment to Libya ... without
coming to rest in a third country and without being substantially
transformed or incorporated into manufactured products in a third
country ....

31 C.F.R. § 550.409(a)(1) (1991). Subsection (d) provides:

Exports of goods or technology from the United States to third
countries are not prohibited where the exporter has reasonable cause
to believe that:

(1) Except as otherwise provided in paragraph (a) of this
section, the goods will be substantially transformed or
incorporated into manufactured products before export
to Libya, or

(2) The goods will come to rest in a third country for
purposes other than reexport to Libya, e.g., for purposes

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 of restocking the inventory of a distributer whose sales
of the particular goods are not predominantly to Libya
....

31 C.F.R. § 550.409(d) (1991). Although the regulations could have been more

artfully drafted, they are consistent. Subsection (a) admonishes an exporter his

shipment is illegal if he knows or has reason to know both that the goods will not

come to rest in a third country and that the goods will not be substantially

transformed or incorporated. 31 C.F.R. § 550.409(a) (1991). Both conditions

must be present for the shipment to be illegal. Id. If, on the other hand, one of

the conditions from subsection (a) is not present, the shipment is not illegal. 31

C.F.R. § 550.409 (a), (d) (1991). Stated differently, if the exporter has reasonable

cause to believe the goods will either be transformed or will come to rest in a

third country, then the shipment is not illegal. 31 C.F.R. § 550.409(d) (1991). In

short, we conclude the regulations can be harmoniously applied and are not

excessively confusing or unconstitutionally vague.

III. Sufficiency of the Evidence

In an argument closely related to the previous argument, Mr. Soussi argues

“[t]he evidence was insufficient to prove that [he] willfully participated in a

transaction to evade or avoid the prohibition of Executive Order No. 12543 and

related regulations.” He states that “[a]t best, the evidence showed that [he]

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negotiated the purchase of 50 Dutchmen trailers by a British company owned by

his brother.” Because it is not against United States law for a British company to

export goods to Libya, Mr. Soussi argues his “transaction did not evade or avoid”

the Libyan export ban. Moreover, Mr. Soussi claims he did not know his actions

would be construed as violating the ban, and therefore his actions cannot be

construed as a wilful violation of the Executive Order or regulations.

We review a sufficiency of the evidence claim de novo. United States v.

Lewis, 240 F.3d 866, 870 (10th Cir. 2001). In conducting this review, we “ask

only whether taking the evidence – both direct and circumstantial, together with

the reasonable inferences to be drawn therefrom – in the light most favorable to

the government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.

1999).

Here there was ample evidence for the jury to conclude Mr. Soussi engaged

in transactions for the purpose of avoiding the export ban. Among other things,

the evidence demonstrated, after Oasis Colorado received an order for fifty

trailers from a Libyan company, Mr. Soussi solicited price quotes for exactly fifty

trailers from United States trailer manufacturers. He asked the manufacturers if

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they could remove some of the markings showing the trailers were manufactured

in the United States. One of the price quotes was found in Mr. Soussi’s

possession with the words “to Libya” printed on it. Mr. Soussi negotiated with

Dutchmen, a United States trailer manufacturer, telling Dutchmen he was with

Oasis Colorado and using Oasis Colorado letterhead. Dutchmen was so

convinced it was dealing with Mr. Soussi and Oasis Colorado that it issued the

invoice to Oasis Colorado for exactly fifty trailers. When Dutchmen asked Mr.

Soussi to verify the address of Oasis UK before changing the invoice, Mr.

Soussi’s girlfriend had Oasis UK letterhead printed in Colorado and Mr. Soussi

faxed the letterhead from his Colorado office. Mr. Soussi was the only person to

deal with Dutchmen about the trailers. When questions arose over the shipping

costs, Mr. Soussi handled the matter by telling the shipping company the trailers

were his and sending correspondence on Oasis Colorado letterhead. When

Customs detained the trailers, Mr. Soussi flew to Italy to deal with the problem.

From this evidence, it was reasonable for the jury to conclude Mr. Soussi knew

about the export ban but engaged in transactions for the purpose of avoiding it.

The evidence was more than sufficient to support Mr. Soussi’s conviction.

IV. Jury Instruction Regarding Exception to Export Ban

Mr. Soussi next claims “[t]he district court committed reversible error in

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failing to instruct the jury regarding the exception to the prohibition of exports to

Libya in 31 C.F.R. § 550.409(d), where the goods come to rest in a third country.”

Specifically, Mr. Soussi requested the jury be instructed:

Exports of goods ... from the United States to third countries are not
prohibited where the exporter has reasonable cause to believe that;

(1) ... the goods will be substantially transformed
or incorporated into manufactured products before
export to Libya, or

(2) The goods will come to rest in a third country
for purposes other than reexport to Libya ....

The district court declined to offer the “come to rest” instruction because it

concluded there was no evidence Mr. Soussi had reasonable cause to believe the

goods would be transformed. Since there was no evidence the trailers were

transformed, the district court concluded Mr. Soussi’s instruction was not

warranted. The court stated, “I think that it’s clear ... that the goods have to come

to rest and be substantially transformed” for the “coming to rest” instruction to

apply. Although the district court declined to give an exact meaning of the phrase

“come to rest,” the court concluded it was not enough for the goods to “stop in a

port overnight or for two nights or five nights and then go on to Libya.”

We review the district court’s decision not to give the “come to rest”

instruction “for abuse of discretion and consider the instructions as a whole de

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novo to determine whether they accurately informed the jury of the governing

law.” United States v. Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir. 1999); see

also Telecor Communications, Inc. v. Southwestern Bell Tel. Co., 305 F.3d 1124,

1141 (10th Cir. 2002). cert. denied, 122 S. Ct. 1384 (2002); United States v.

McPhilomy, 270 F.3d 1302, 1310 (10th Cir. 2001).

After reviewing the record and district court opinion, we are convinced the

district court erred in its reason for refusing to offer the “come to rest”

instruction. However, we stop short of concluding the district court committed

actual error. Instead, we conclude any error was harmless. We will explain first

why we cannot agree with the district court’s reasoning, and then discuss why any

error was harmless.

Mr. Soussi contends the district court erred in denying the request for the

jury instruction because the court mistakenly believed the trailers had to be

substantially transformed and come to rest in a third country in order to escape

the export ban. The district court was under the erroneous belief that Mr. Soussi

needed to present evidence the trailers would be substantially transformed, as well

as evidence the trailers would come to rest. As we explained in Part II.B, a

shipment is not illegal if the exporter has reasonable cause to believe either the

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goods will be transformed or the goods will come to rest. 31 C.F.R. § 550.409(d)

(1991). We conclude Mr. Soussi’s requested instruction was an accurate

statement of the law. 3

Assuming Mr. Torti’s testimony provided a sufficient foundation for the

“come to rest” instruction, Mr. Soussi acknowledges we may affirm the district

court’s decision if failing to give the instruction amounts to harmless error.

Neder v. United States, 527 U.S. 1, 9 (1999). In this case, the error is harmless

unless “ the error ... had substantial influence” on the outcome of the trial “or if

one is left in grave doubt” as to its influence. Kotteakos v. United States, 328

U.S. 750, 765 (1946).

In performing our harmless error analysis, we find it useful to consider the

meaning of the phrase “come to rest.” While the regulations do not define “come

3
The fact Mr. Soussi’s instruction was an accurate statement of the law did
not automatically require the district court to give his requested instruction. “[I]t
is elementary that a defendant in a criminal case is entitled to instructions
delineating a particular theory of defense only if there is a sufficient foundation in
the evidence.” Devine v. United States, 403 F.2d 93, 95 (10th Cir. 1968).
However, we decline to decide whether there was sufficient foundational evidence
to support the “come to rest” instruction. Instead, we resolve the issue using
harmless error analysis.

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to rest,” they do offer some guidance as to what “come to rest” means. 4

According to the regulations,

[e]xports of goods ... from the United States to third countries are not
prohibited where the exporter has reasonable cause to believe that:

....

... The goods will come to rest in a third country for purposes other
than reexport to Libya, e.g., for purposes of restocking the inventory
of a distributor whose sales of the particular goods are not
predominantly to Libya.

31 C.F.R. § 550.409(d)(2) (1991). Consequently, in order for the “come to rest”

exception to apply to Mr. Soussi, the regulations require the trailer to have been

exported to Italy for some purpose other than simply forwarding them to Libya. It

is not enough for Mr. Soussi to show the trailers spent time in Italy on their

shipping route to Libya.

Mr. Soussi believes any error was not harmless because “there was

evidence to support the proposition that the trailers were to ‘come to rest’ prior to

transshipment to Libya.” He claims Marino Torti’s testimony established “the

buyer of the trailers changed several times, before ... the trailers arrived in Italy.”

4
Mr. Soussi also argues the term “come to rest” is unconstitutionally
vague. Because the regulations offer sufficient guidance as to what “come to
rest” means, we reject this argument.

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Mr. Torti testified Mosadak Soussi told him an Italian “potential buyer” cancelled

his agreement requiring Oasis UK, “in panic” to sell the goods to a Libyan

company. 5 Mr. Soussi argues the amount of evidence against him is small when

compared with this testimony.

After reviewing Mr. Torti’s testimony, the exhibits, and the other evidence

presented at trial, we conclude any error in admitting the exhibits was harmless.

Although Mr. Torti testified Mosadak Soussi told him the goods were originally

sold to an Italian buyer, there is nothing in Mr. Torti’s testimony to suggest Fikri

Soussi ever knew about an Italian purchaser. Furthermore, other evidence

presented at trial uniformly states Fikri Soussi thought the goods were destined

for Libya from the beginning of his involvement in the transactions. The only

purchase order and invoice for the trailers found in Mr. Soussi’s office showed

5
Mr. Soussi also argues the buyer for the trailers changed after the trailers
arrived in Italy. This argument is a red herring because actions taken after the
trailers were detained by Customs are irrelevant. The regulations specify exports
are not prohibited “where the exporter has reasonable cause to believe ... the
goods will come to rest in a third country for purposes other than reexport to
Libya.” 31 C.F.R. § 550.409(d)(2) (1991) (emphasis added). When Mr. Soussi
entered into the transactions to evade the ban on exports to Libya, he had no way
of knowing the trailers would be detained by Customs. It would not matter
whether Mr. Soussi rerouted the trailers after they were detained by Customs
because Mr. Soussi could not have had reasonable cause to believe this would
occur when he initially engaged in transactions designed to evade the export ban.

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the trailers were ordered by and sold to Zoo Park [Benghazi], Libya. In fact, Mr.

Soussi’s closing argument at trial stated: “You know if you look at the

documents that are in Fikri Soussi’s office, there may be dozens of them, maybe

40, 50, 60, all with the words Benghazi, Libya clearly spelled out.” Given the

incredible weight of evidence that Mr. Soussi knew the trailers were destined for

Libya, any error in denying the instruction was harmless. 6

V. Deliberate Ignorance Jury Instruction

Mr. Soussi’s next argument also involves a perceived deficiency in the jury

instructions. He argues “[t]he evidence did not support the court’s decision to

instruct the jury on deliberate ignorance.”

The district court should only give a deliberate ignorance jury instruction

“when the prosecution presents evidence that the Defendant purposely contrived

6
Mr. Soussi argues any error was not be harmless because “[t]he jury
struggled with reaching a verdict in this case, thrice telling the court it was
deadlocked.” While the length of time the jury deliberates may sometimes be a
factor in determining whether an error is harmless, United States v. Howell, 285
F.3d 1263, 1271 (10th Cir. 2002), we, nevertheless, conclude any error in denying
the jury instruction was harmless in this case. Here the case was submitted to the
jury after a nearly six day trial. After this lengthy trial, concerning subject matter
that was probably unfamiliar to many of the jurors, the jury deliberated for less
than one full day. This amount of deliberation in Mr. Soussi’s case is not enough
to convince us any instructional error was prejudicial rather than harmless.

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to avoid learning all the facts in order to have a defense in the event of a

subsequent prosecution.” United States v. Espinoza, 244 F.3d 1234, 1242 (10th

Cir. 2001) (quotation marks and citation omitted). “[T]he fact that an objective

reasonable person would have had knowledge is immaterial.” Id. at 1242. The

relevant inquiry is whether Mr. Soussi “had subjective knowledge of his criminal

behavior,” United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir.),

cert. denied, 531 U.S. 915 (2000), but purposely and deliberately avoided actual

knowledge of the operant facts, Espinoza, 244 F.3d at 1242-43.

Typically, “[w]e review the district court’s decision to give a particular jury

instruction for abuse of discretion and consider the instructions as a whole de

novo to determine whether they accurately informed the jury of the governing

law.” McPhilomy, 270 F.3d at 1310. Notwithstanding this general rule, “we have

repeatedly applied a de novo standard to review the propriety of a deliberate

ignorance instruction.” Delreal-Ordones, 213 F.3d at 1264 n.2. “In other

contexts, however, we have applied an abuse of discretion standard to the district

court’s decision to give a particular criminal instruction.” Id. We need not

resolve the apparent conflict because, in this case, we can uphold the district

court’s decision using the less deferential de novo standard.

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 Here, the district court gave the deliberate ignorance instruction based on

the testimony of two of Mr. Soussi’s business associates. Both associates

testified they gave Mr. Soussi a document prepared by the United States

Department of the Treasury entitled “Libya: What You Need to Know About the

U.S. Embargo.” Both business associates testified Mr. Soussi quickly skimmed

and dismissed the document. The district court concluded this evidence was

sufficient “to allow the jury to infer that [Mr. Soussi] was avoiding the means of

knowing that what he was doing is violating the law.”

Mr. Soussi claims the evidence was insufficient to warrant the deliberate

ignorance instruction because the document he received from his business

associates did “not indicate whether a person in Mr. Soussi’s situation could

assist a foreign company, not subject to the prohibition, in sending goods to

Libya.” We reject this argument. The document given to Mr. Soussi stated “no

goods, technology, or services may be exported from the United States to Libya,

either directly or through third countries.” The document also specified the

embargo and accompanying regulations apply to “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.” This

should have alerted Mr. Soussi it was illegal for him, as a United States citizen, to

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engage in transactions for the purpose of exporting goods to Libya, even if the

goods were shipped through a third country.

In the alternative, Mr. Soussi argues “even if an objective reasonable

person would have known the conduct is illegal from reading [the document],

both [witnesses] said that Mr. Soussi did not study this document.” Mr. Soussi

claims because he did not have “subjective knowledge that his conduct was

prohibited,” the court should not have given a deliberate ignorance instruction.

Once again, we disagree with Mr. Soussi’s conclusion. While the

testimony supports Mr. Soussi’s claim that he did not extensively study the

document, this is unhelpful to Mr. Soussi. In fact, this is precisely the fact

scenario in which a deliberate ignorance instruction should be given. There is

evidence Mr. Soussi had subjective knowledge of his criminal behavior. He lied

to United States manufacturers about the destination of the trailers. He asked

manufacturers if they could remove markings showing the trailers were from the

United States. He asked Dutchmen to issue an invoice to Oasis UK instead of

Oasis Colorado. These evasive actions are evidence Mr. Soussi knew his actions

were illegal. Yet, there is evidence suggesting Mr. Soussi deliberately refused to

read the document on the Libyan export ban, presumably because he wanted to

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avoid unequivocal knowledge it was illegal for him to engage in the transaction

even if he was purporting to act on behalf of Oasis UK. 7 Therefore, we affirm the

district court’s decision to give the deliberate ignorance instruction.

VI. Motion for New Trial

Lastly, Mr. Soussi argues the district court erred in denying his motion for

a new trial because the district court erroneously admitted hearsay statements.

Mr. Soussi’s motion for a new trial was based on the admission of out-of-

court statements by Marino Torti, Mosadak Soussi, and Chris Russotto. Mr.

Soussi did not raise hearsay objections to the statements when the government

introduced them at trial. However, in his motion for a new trial, Mr. Soussi

argued these statements were admitted because he was originally charged with the

substantive offense involved in this appeal as well as conspiracy to commit the

7
Mr. Soussi protests, claiming it is unfair to fault him for failing to study
the document when “[h]e was shown this document in the context of a business
discussion about restaurants in the Middle East that had nothing to do with
exporting to Libya.” His argument, however, is undercut by the record in this
case. One of Mr. Soussi’s business associates testified that his notes listed
“Mobile housing for Libya - ongoing” as one of the topics of discussion at a
meeting with Mr. Soussi held about two months before he gave Mr. Soussi the
document about the Libyan trade restrictions. We conclude the evidence was
sufficient for the district court to give the deliberate ignorance instruction.

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substantive offense. He suggested he did not object to the hearsay material

because he thought the material would be admitted pursuant to the co-conspirator

exception to the hearsay rule. After the government’s case-in-chief, the district

court dismissed the conspiracy count because “the Government had not produced

sufficient evidence to demonstrate that Mosadak Soussi ... and Marino Torti – the

only alleged conspirators, aside from the defendant – possessed the intent

required to commit the underlying offense.” Consequently, Mr. Soussi argued it

was error to admit the out-of-court statements when the government did not prove

a conspiracy. The district court denied the motion for a new trial in part because

it did “not believe the receipt of the statements and documents was plain error ....

The testimony cut both ways – that is, it could favor both the defendant and the

Government.”

On appeal, Mr. Soussi acknowledges much of the hearsay evidence

introduced by the government was helpful to his case. 8 Consequently, Mr. Soussi

complains only about the admission of two exhibits introduced through Mr.

Torti’s testimony, which he contends contain hearsay material. 9 The first is a

8
For example, as we discussed in Part IV, Mr. Soussi relies on Mr. Torti’s
hearsay statements to support his argument the district court should have given a
“come to rest” instruction.
9
We note Mr. Soussi did not identify the two allegedly damaging exhibits
until his reply brief. Mr. Soussi’s specific objection to these exhibits is much like

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telefax message from Marino Torti to Mosadak Soussi that stated: “Talking about

the ‘certificate of origin’ I have a big surprise for you: prepare yourself to offer

me a fish drama in a top quality restaurant !!! You’ll see the solution in the next

coming fax message.” Mr. Torti testified this referred to his attempts to obtain a

certificate of origin stating the trailers came from the United Kingdom. Mr. Torti

said he was never able to obtain the certificate because the goods were never

imported into the United Kingdom and no taxes were paid to the United Kingdom.

The second exhibit is also a telefax message from Mr. Torti to Mosadak Soussi.

It contains an list of services Mr. Torti provided. One item listed is “Special and

confidential agreement with Customs authority for the necessary arrangements, in

order to induce a Customs officer to close not two but two thousand eyes at the

time of the transhipment. This must be paid but there is not the possibility to get

a receipt.” According to Mr. Torti, the document was sent in response to

Mosadak Soussi’s concern Italian Customs would discover the origin of the

goods. Mr. Torti testified he told Mosadak Soussi “since the goods were ... now

in the ownership of a U.K. subject, the U.K. subject could decide to send the

goods where he wished.” Mr. Torti maintained he did not ask Customs officers to

any argument raised for the first time in a reply brief – it denied the government
the opportunity to respond to the argument and deprived us of adequate briefing.
See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). While we find this
practice troubling, in this instance we exercise our discretion and address Mr.
Soussi’s argument.

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do anything improper.

We review the denial of a motion for a new trial for abuse of discretion.

United States v. McKneely, 69 F.3d 1067, 1073 (10th Cir. 1995). A district court

abuses its discretion if it makes an error of law. United States v. Hardman, 297

F.3d 1116, 1120 (10th Cir. 2002). Here, the alleged error of law is the district

court’s admission of the exhibits. Consequently, we will affirm the district

court’s denial of the motion for a new trial unless the district court erred in

admitting the exhibits. In this instance, we review the admission of the exhibits

only for plain error, as Mr. Soussi did not raise a hearsay objection at trial. See

United States v. Martinez, 76 F.3d 1145, 1150 (10th Cir. 1996). Under this

standard, we reverse a district court, inter alia, “only if we determine that

admitting the [exhibits] placed the underlying fairness of the entire trial in doubt

or affected [Mr. Soussi's] substantial rights.” United States v. Fuentez, 231 F.3d

700, 708 (10th Cir. 2000) (quotation marks and citation omitted). Mr. Soussi

bears the burden of persuading us any error affected his substantial rights. United

States. v. Olano, 507 U.S. 725, 734 (1993). In this case, the court’s admission of

the hearsay testimony was not plain error, and the district court did not abuse its

discretion in denying the motion for a new trial.

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 Throughout this opinion, we have emphasized the great weight of evidence

against Mr. Soussi. We have done this without referring to either of the two

exhibits Mr. Soussi now claims were erroneously admitted. In contrast, Mr.

Soussi’s defense was weak. It consisted almost solely of arguing Mr. Soussi did

not know he was violating the law by helping his brother’s foreign company

export the trailers to Libya.

Nevertheless, our inquiry is not whether there was enough evidence to

convict Mr. Soussi without the two exhibits, but whether admission of the

evidence placed the underlying fairness of the trial in doubt or affected Mr.

Soussi’s substantial rights. See Fuentes, 231 F.3d at 708. Mr. Soussi contends

the exhibits affected the fairness of his trial because “after thrice telling the court

it was hopelessly deadlocked, and after an hour of reviewing [Mr. Torti’s]

deposition and exhibits, the jury returned with a guilty verdict.” 10

We disagree with Mr. Soussi for three reasons. First, Mr. Torti’s

deposition and the accompanying exhibit are lengthy, consisting of more than one

10
Although Mr. Soussi now contends Mr. Torti’s testimony and the
accompanying exhibits caused the jury to return a guilty verdict, Mr. Soussi was
unequivocally in favor of the district judge giving these items to the jury for
review.

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hundred pages. It is difficult for us to believe the two paragraphs Mr. Soussi now

complains of were the deciding factors in the jury’s verdict. Second, the exhibits

were not necessarily inconsistent with Mr. Soussi’s defense. While the exhibits

suggest Mosadak Soussi and Mr. Torti suspected it was illegal to ship the trailers

to Libya, the documents do not connect Fikri Soussi to the trailers. Mr. Torti

testified, prior to the detention of the trailers, he dealt only with Mosadak Soussi.

This evidence supported Fikri Soussi’s contention he had not done anything

wrong because a foreign corporation exported the trailers. Furthermore, Mr. Torti

was given ample opportunity to explain that Mosadak Soussi was concerned about

the legality of shipping the trailers to Libya and that the exhibits were his

attempts to reassure Mosadak Soussi the shipment was completely legal because a

foreign company was shipping the trailers. This testimony about the exhibits

corroborated Fikri Soussi’s theory that the average person would not have

realized the conduct was against the law. Third, given the wealth of evidence

offered by the government, we believe the two exhibits did not affect the verdict

in this case. Consequently, we conclude it was not plain error for the district

court to admit the two exhibits. The district court did not abuse its discretion in

denying Mr. Soussi’s motion for a new trial.

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 CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision and

REMAND the case for further proceedings consistent with this opinion. 11

11
The case must be remanded because Mr. Soussi was released on bond
pending resolution of this appeal.

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