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United States v. Khazaee

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 5 th day of October, two thousand 3

seventeen. 4

5

PRESENT: JOHN M. WALKER, JR., 6

RAYMOND J. LOHIER, JR., 7

Circuit Judges

, 8

JOHN F. KEENAN, 9

District Judge .* 10

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UNITED STATES OF AMERICA, 12

13 Appellee

, 14

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v. No. 15

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17

MOZAFFAR KHAZAEE, AKA Arash Khazaie, 18

19 Defendant

‐ Appellant. 20

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22

23

* Judge John F. Keenan, of the United States District Court for the Southern District of

New York, sitting by designation.2 1

2

FOR APPELLANT: A MY A DELSON (Daniela Elliott, on the 3

brief ), Law Offices of Amy Adelson 4

LLC, New York, NY. 5

6

FOR APPELLEE: V ANESSA R ICHARDS (Marc H. 7

Silverman, on the brief ), Assistant 8

United States Attorneys, for Deirdre 9

M. Daly, United States Attorney for 10

the District of Connecticut, New 11

Haven, CT. 12

13

Appeal from a judgment of the United States District Court for the District 14

of Connecticut (Vanessa L. Bryant, Judge ). UPON DUE CONSIDERATION, IT IS 15

HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the 16

District Court is AFFIRMED. 17

Mozaffar Khazaee appeals from a judgment of the District Court (Bryant, J.) 18

sentencing him principally to 97 months’ imprisonment followed by a three

‐ year 19

term of supervised release. Khazaee pleaded guilty to attempting to export 20

defense articles to Iran in violation of the Arms Export Control Act (“AECA”), 22 21

U.S.C. § 2778. On appeal, Khazaee argues that his conviction should be vacated 22

primarily because (1) his guilty plea was not knowing and voluntary, (2) the 23

District Court improperly involved itself in plea negotiations, and (3) he did not 24

allocute to all elements of the charged offense. We assume the parties’ 253 familiarity with the facts and record of the prior proceedings, to which we refer 1

only as necessary to explain our decision to affirm. 2

Khazaee was initially indicted on two counts of interstate transportation of 3

stolen property, in violation of 18 U.S.C. § 2314, for transporting documents 4

containing proprietary information about United States Air Force jet engines. 5

Khazaee later pleaded guilty to a “Substitute Information” charging him only 6

with violating the AECA. Before accepting a guilty plea, a district court must 7

“inform the defendant of, and determine that the defendant understands

. . . the 8

nature of each charge to which the defendant is pleading.” Fed. R. Crim. P. 9

11(b)(1)(G). Where, as here, a claim of non

‐ compliance with Rule 11 was not 10

made in the district court, we review for plain error, which requires a defendant 11

to show “a reasonable probability that, but for the error, he would not have 12

entered the plea.” United States v. Pattee, 820 F.3d 496, 505 (2d Cir. 2016) 13

(quotation marks omitted). In conducting our review, we may consider the 14

“entire record,” not merely the defendant’s allocution. United States v. Maher, 15

108 F.3d 1513, 1521 (2d Cir. 1997). 16

Khazaee first argues that he mistakenly thought he was pleading guilty to 17

interstate transportation of stolen property in violation of 18 U.S.C. § 2314 rather 184 than to a violation of the AECA. Our review of the following portions of the 1

record suggests otherwise: (1) the plea agreement, (2) the stipulation of offense 2

conduct attached to that agreement, (3) Khazaee’s plea allocution, and (4) the 3

Government’s recitation of the charges against Khazaee during the change of plea 4

hearing as involving “unlawful exports and attempted exports of defense articles 5

in violation of the Arms Export Control Act.” App’x 260, 262. True, the 6

Government’s assertion that Khazaee had “stole[n] and retained material” from 7

his former employers, id. at 270, and the District Court’s focus on the 8

“proprietary” nature of that material, id. at 294, were not directly relevant to any 9

element of the AECA. But such “loose terminology,” United States v. Torrellas, 10

455 F.3d 96, 106 (2d Cir. 2006), does not negate the record as a whole, in which 11

Khazaee admitted during the plea allocution that he had “possession of [the] 12

export control element that required [a] license that [he] didn’t have,” App’x 308, 13

and that he exported those materials in a “shipment that was supposed to leave 14

the border of [the] United State[s],” specifically “[t]o Iran,” id. at 311–12. 15

Second, Khazaee argues that the District Court violated Rule 11(c)(1), 16

which prohibits district courts from participating in plea discussions. See Fed. R. 17

Crim. P. 11(c)(1). There was no plain error. The District Court never advised or 185 encouraged Khazaee to plead guilty, see United States v. Davila, 133 S. Ct. 2139, 1

2147–48 (2013), discussed the sentence it would impose if Khazaee pleaded guilty, 2

see United States v. Werker, 535 F.2d 198, 201 (2d Cir. 1976), or otherwise exerted 3

“pressure to settle” the case “on terms favored by the judge,” United States v. 4

Paul, 634 F.3d 668, 673 (2d Cir. 2011). Nor do we discern error in the District 5

Court’s statement that Khazaee would be entitled to a three

‐ point reduction 6

under the Sentencing Guidelines only if he accepted responsibility for the charged 7

offense. See U.S.S.G. § 3E1.1. 8

Third, Khazaee argues that he did not admit to willfully violating the 9

AECA. We are not persuaded. “The term ‘willfulness’ has generally, albeit not 10

uniformly, been interpreted as referring to knowledge that the conduct in 11

question was wrongful or unlawful.” See United States v. Hopkins, 53 F.3d 533, 12

539 (2d Cir. 1995). Khazaee admitted that he exported documents containing 13

“information [that] was illegal to disclose,” App’x 307, and that, based on his 14

training on export restrictions, he understood that it was illegal to export the 15

information to Iran, id. at 312. This admission satisfies the AECA’s willfulness 16

element. See Torrellas, 455 F.3d at 103. 17

186 We have considered Khazaee’s remaining arguments and conclude that 1

they are without merit. For the foregoing reasons, the judgment of the District 2

Court is AFFIRMED. 3

FOR THE COURT: 4

Catherine O’Hagan Wolfe, Clerk of Court 5