UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5001

AL M. HARB, a/k/a Abdelgader

Mohamed Abuharb, a/k/a Abdul M.

Abuharb,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5010

AL M. HARB, a/k/a Abdelgader

Mohamed Abuharb, a/k/a Abdul M.

Abuharb,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MOHAMMED HARB,

Claimant-Appellant,

No. 96-1338

and

AL M. HARB, a/k/a Abdelgader

Mohamed Abuharb, a/k/a Abdul M.

Abuharb,

Defendant.
Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-94-21)

Argued: January 31, 1997

Decided: April 11, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Huestis Pratt Cook, III, ROBERT CABELL & ASSOCIATES, Richmond, Virginia, for Appellants. John Granville Douglas, Assistant United States Attorney, Richmond, Virginia, for

Appellee. ON BRIEF: Robert G. Cabell, Jr., ROBERT CABELL &

ASSOCIATES, Richmond, Virginia, for Appellants. Helen F. Fahey,

United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Immediately following the Iraqi invasion of Kuwait, President

Bush issued emergency Executive Orders to forbid trade, transporta-

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tion and financial transactions with Iraq. Executive Orders 12722,

12724, implemented by 31 C.F.R. Part 575. Within months of the

President's emergency orders, Al M. Harb, a Jordanian-born naturalized citizen of the United States, began exporting technological products to Iraq, via Jordanian companies controlled by Harb's family. As

a consequence of this activity, Harb was convicted on twenty-three

counts, including violations of the International Emergency Economic

Powers Act (IEEPA) and money laundering. Although Harb was only

sentenced to eight years imprisonment and forfeiture of $420,028.52

of his ill-gotten gain, he now challenges both his conviction and sentence. We find none of Harb's challenges to be meritorious and therefore affirm his conviction and sentence in full.

I.

In 1990, Harb and his wife Rula Saba Harb (Saba) began an export

business under the name Expo International, later to be renamed Virginia International Trade Company (VITCO), while Harb's family

operated a collection of companies in Jordan called the Abu Harb

Trading Group. Although Harb and Saba frequently represented to

their suppliers and manufacturers that the end users of their products

would be companies in the Abu Harb Trading Group, communications discovered in Harb's files indicate that the Jordanian companies

were often transhipment points for goods intended for Iraq. For example, Harb's files contained direct communications between VITCO

and Al Jabouri, the Head of the Commercial Directorate of the General Establishment for Generation and Transmission of Electricity

(GEGET), an agency of the Iraqi government. These communications, along with other evidence presented at trial, establish that Harb

exported technological products for eventual delivery to Iraq.

On February 26, 1994, United States Customs Service agents

arrested Harb and Saba for violating the embargo against Iraq. A jury

thereafter convicted Harb on twenty-three counts for, inter alia, conspiracy to violate the International Emergency Economic Powers Act,

willfully dealing in property intended for exportation to Iraq, willfully

engaging in transactions relating to travel by a United States citizen

into Iraq, and money laundering. The court found Saba, who chose a

bench trial, not guilty on all counts. The court calculated Harb's base

offense level at 22 for the IEEPA convictions and 26 for the money

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laundering counts, and sentenced him to eight years imprisonment.

Pursuant to an agreement between Harb and the government to allow

the district court to decide all forfeiture issues, the court ordered Harb

to forfeit $420,028.52.

II.

Harb challenges the sufficiency of the evidence for his multiple

convictions under 50 U.S.C. § 1705(b), which makes it a crime to

"willfully" violate any license, order or regulation issued under the

IEEPA. It is difficult to fathom how Harb, who operated an export

company dealing regularly in the Middle East, could have been

unaware that the sales to Iraq violated the embargo accompanying the

Gulf War. In any event, there is ample evidence affirmatively establishing that Harb was on notice such conduct was illegal. For example, on April 6, 1991, Commerce Department Agent Donald Lyles

interviewed Harb, notified him of the trade embargo against Iraq, and

warned him not to entertain price quotations for products destined for

Iraq. J.A. at 181. The willfulness of Harb's violations is further evidenced by the great lengths to which he went to conceal the fact that

the end users of his exports were in Iraq. Among other things, Harb

covered up or obliterated references to Iraq in documents contained

in his own files. See, e.g., J.A. at 1197, 1325, 1343, 1476.

Harb argues that, for two reasons, he was unaware of the illegality

of his activities. Neither of these is persuasive. First, Harb's argument

that he thought GEGET Director Al Jabouri was purchasing goods in

his private capacity as head of a Jordanian business is contradicted by

Harb's own business records, which show that Jabouri communicated

with Harb from his GEGET office via a GEGET telex; that Jabouri

sent specifications for an Iraqi government power plant called Al

Massaib; and that Jabouri ordered parts with serial numbers identified

solely with Iraqi projects. Second, Harb's assertion that he did not

intend for his goods to be shipped to Iraq unless approved as humanitarian goods by the United Nations is of no avail, because Harb offers

no evidence that he expected his goods to be approved by the United

Nations prior to shipment to Iraq, and because United Nations

approval would not have legalized the shipments without licenses

from the United States Treasury Department.

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III.

Harb next argues that the district court abused its discretion by permitting Barbara Jones, the U.S. representative on the United Nations

Sanctions Committee, to testify that the United Nations had received

no applications for approval of humanitarian goods from Harb, his

company, or his family's companies in Jordan. Although Jones' testimony does not directly rebut Harb's assertion that applications were

submitted to the Jordanian government (which presumably would

then submit them to the U.N.), Jones' testimony is clearly relevant to

Harb's ultimate argument that he believed the goods would not be

shipped to Iraq without United Nations approval. Therefore, the district court in no way abused its discretion in allowing Jones to testify.

Nor did the district court err in denying Harb's motion for a new

trial based on an October 19, 1994, memorandum from a Jordanian

deputy representative to the United Nations, stating that three applications had been submitted to the U.N. Sanctions Committee in March,

1994 and denied in July of that same year. This evidence could have

been discovered with diligent effort prior to trial. Furthermore, there

is nothing exculpatory in the memo, because the memo shows that the

Jordanian government sent the requests to the U.N. after Harb was

arrested and that the applications were rejected. Furthermore, Harb

has not even established that the applications in question pertained to

the shipments for which he was convicted.

IV.

Harb's remaining arguments all lack merit. The least supportable

of his arguments is that his sentence was unwarranted because he did

not "evade" "national security controls" under USSG § 2M5.1.*

Harb's suggestion that the Executive Orders prohibiting exports to

Iraq were foreign policy controls rather than national security controls

is untenable, as the orders were clearly both. See Executive Order

12722 ("[T]he policies and actions of the Government of Iraq constitute an unusual and extraordinary threat to the national security and

foreign policy of the United States.").

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*USSG § 2M5.1 applies because there is no guideline directly addressing Harb's conduct, and § 2M5.1 is the most analogous guideline.

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The district court's imposition of Harb's prison sentence and subsequent order of forfeiture did not constitute double jeopardy because

the two penalties were imposed during the same proceeding. The government moved for a forfeiture order the day the guilty verdict was

rendered, and the court ordered forfeiture only two days later. The

eighteen-month delay before the forfeiture order was finalized

resulted from a need to resolve a third party claim to the forfeited

funds.

Finally, we find no reversible error in the district court's reconstruction of an exhibit under F.R.A.P. 10(e), its calculation of the

amounts of money laundered, or any other ground raised by Harb in

either his original brief or his pro se supplemental brief.

The judgment of the district court is affirmed.

AFFIRMED

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