When two young Arab-American men Adeeb Sobh and Ayman Wazne thought they were putting together an business deal to export some equipment from the United States to South Sudan through Dubai that would put a substantial amount of money in their pockets for doing nothing more than acting as middle men between a technology company in Colorado and an overseas buyer, they had no idea that the broker assigned by the company was an undercover Homeland Security Investigations (DSI) agent. They also could not have known that the technology company were acting as cooperators and snitches. They did not know that the simple query to this company would result in the US government monitoring their email communication, recording their conversations and conducting surveillance.
On March 13, 2012, after facilitating the transfer of $222,000 from the overseas buyer to the technology company in Colorado, money that actually went into a secret U.S. Government account, DSI agents arrested Adeeb Sobh immediately after he took receipt of 40 frequency hopping data modem radios that U.S. law identified as defense technology whose export was prohibited unless the State Department provided authorization through the issuance of an export license. The data modem radios in the case had no guts-no technology. They were essentially empty boxes used to complete the delivery to Adeeb Sobh so an arrest can be made. A year and a half later, DHS agents arrested Ayman Wazne upon his arrival in the United States from Lebanon. Ayman Wazne was the second person acting as middleman for the deal and facilitating the transition for the overseas buyer who was located in Dubai from Lebanon. Adeeb Sobh and Ayman Wazne were indicted on charges of conspiracy to ship defense controlled articles without first obtaining a license in violation of the Arms Export Control Act and attempting to export defense articles without a license in violation of the Arms Export Control Act.
Mr. Sobh was represented by a federal public defender. Ayman Wazne retained Haytham Faraj to represent him. The government disclosed hundreds of emails and telephone conversations between Mr. Sobh, the undercover DSI agent and the technology company. The emails revealed that Mr. Sobh was trying to make the deal but hesitant to engage in any conduct that would violate the law as the undercover agent described it. When Sobh hesitated the undercover agent explained that he had connections with U.S. Customs officials that could smuggle the products out of the country through Florida for the small fee of $4000. Sobh told the UC that he would have to check with his boss, Wazne. When Sobh contacted Wazne to explain how the products could be shipped through Florida, Wazne said why cant he just get a license. The message was delivered to the UC who responded that the equipment would never be allowed to leave the U.S. legally because it is used for controlling UAVs. Wazne communicated with the UC through Sobh. Wazne asked Sobh to tell the Broker/US that he should deliver the equipment to Waznes home in Michigan and that he would take care of shipping. These back and forth conversations consumed nearly 10 weeks, from mid-January 2012 to March 13, 2012. In Late February 2012, the overseas buyer transferred $220,000 to the company that was supposed to manufacture the radios. On March 12, 2012, the undercover agent called Sobh and told him that the radios are ready for delivery but because of their high value, he was going to deliver them in person to Sobh in Michigan. On March 13, Sobh and the UC met. Sobh began to take delivery of the radios and was immediately arrested.. After arresting Sobh, agents called Wazne in Lebanon and asked him to return to the U.S. Waznes family and children live in Michigan. He and Sobh were neighbors and childhood friends. Wazne returned in December of 2013 when he was immediately arrested and indicted. Trial would take place in the U.S. District Court for the District of Columbia. DC was selected because the license to export would have issued in DC. The government already had evidence that Wazne had purchased technology on previous occasions and personally shipped it from his home in Michigan to overseas locations. The prosecutors were going to prove their case using those previous transactions as evidence of intent, common scheme and modus operandi as 404(b) evidence. We litigated the issue before trial and as every defense lawyer expects, the defense lost.
Trial commenced on May 18, 2015. It was estimated that it would consume 5 to 7 trial days. It continued until June 10, when the jury commenced deliberations. The jury deliberated until June 17 when they returned their verdicts of acquittal on all charges except one, on which they hung.
Trial commenced with the judge ordering me not to argue entrapment in opening. I complied. Instead, I argued entanglement. I told the story of how when Sobh, who was not my client, first reached out to the company he was completely truthful about what he wanted and where the product was going. I spoke about DSI focusing on Sobh and on my client not because of anything they did or said but because of who they are. There was nothing sinister about requesting a quote from the manufacturer. The question that could not be acceptably answered by anyone is why the manufacturer contacted DSI and why DSI decided to investigate. I hammered the point home that after the first email from the manufacturer notifying Sobh that they could not sell him this technology without a license, he did not contact them again. They then contacted him three times at the behest of DSI agents to persuade him to purchase the equipment from them and offered him a trusted broker who could facilitate the transaction. I told the jury that but for so called law enforcement agents trying to find ways to keep themselves employed by entangling innocent people in criminal investigations we would not all be sitting here today.
I told the jury this case about money. The governments has its hands on $220,000 that they wanted to keep and the only way they can do that is by convicting these two young men.
Government opened with a theory of the case based on choices. The prosecutor argued that Wazne and Sobh had a choice of applying for a license through the broker or in violating the law. The statement resonated with the jury. While it was true that the defendants did not ask the broker to facilitate the smuggling of the equipment, they also failed to ask him for assistance in obtaining a license. And if the equipments ultimate destination is an overseas buyer, then why was it going to Michigan except to be personally shipped out by Wazne as he had done on previous occasions.
The government called witnesses from Freewave, the manufacturer of the radios. On the evening of the Freewave witnesses taking the stand, they disclosed that the company itself had engaged in the same violation no less than 19 times in the last 4 years and had only received warnings. But they were not men of Arab descent. The cross examination of the Freewave witnesses was a soft cross. We talked about the complexity of the regulation and how they would never willfully violate the export laws of the United States but because the law is so complex it is easy to make a mistake. Then we talked about why they focused on the query from Sobh. They said he was persistent. I showed that they were the ones who were persistent because it cast them in a positive light with the agency that had previously investigated them. Then it was the undercover agents turn. I had no soft cross for him. I asked him if I could cross him as the undercover because that is the persona he adopted in the investigation. He agreed. He was not a government agent but a smuggler named Blake. The government objected and the judge sustained but I did it anyway because there was no other way to do it. Blake was a smuggler, who paid bribes to government officials and engaged in criminal conspiracies. Blake, I said, the government said this case was about choices do you agree? He agreed. Sobh and Wazne were offered a choice to get a license through you but they chose not to. Thats correct he said. But there was another choice here wasnt there? He said he didnt understand. They also had a choice not to go with you at all because you were an admitted criminal, isnt that true? Prosecutors jumped to their feet objecting. Sustained, the judge said. Well were you not a smuggler responsible for corrupting and bribing government customs officials? Objection! they screamed. Sustained came the retort. I asked to approach the bench. I tried to make the judge understand why my questions were relevant and rebutted the governments theory. The judge was unsure where I was going. He needed to be persuaded. I went back to my questions. Isnt it true that if you engage in an agreement with someone to commit a crime it is called a conspiracy? The same crime these two are accused of engaging in? Blake said yes. And you were engaged in an agreement with a customs official to smuggle products out of the United States for money. Objection screams rang in the courtroom. The jury was enjoying the back and forth and upset by the disruptions. They were getting the point. It was about choices and the two defendants chose not to work with this criminal.
Closing argument received no less than ten objections. The jury was shaking their heads in agreement as I went through the facts and argued a point that became the basis for the jurys acquittal of the two defendants. I asked the jury to ask the prosecutor to answer a simple question when the prosecutor stands back up to argue: if these radios had no technology inside them and there was no danger of an unauthorized technology transfer, why didnt you allow the investigation to continue to see if the defendants would actually ship that way we wouldnt have to guess someone into a conviction which we are not allowed to do. Why didnt you make our job of agreeing with you easier by actually showing us that they intended to ship or actually did ship the products? The reason I told them is because the investigators knew that if the defendants applied and obtained a license they would be discovered and they would have to return the money. If they were denied a license they might return the radios and ask for the money. In order for the government to keep the money and for the agents to look good, the arrests had to be made at that time.
After four days of deliberations, the jury acquitted Sobh on both charges and Wazne on the conspiracy. They hung on the attempt for Wazne but with a not guilty on the conspiracy and Sobh acting as the voice of Wazne, the government had nowhere else to go. A week after trial ended, the government filed a motion to dismiss the Attempt charge.
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