from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:14-cr-60195-BB-1
WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
Man appeals her conviction and sentence for conspiracy to
export defense articles without a license or written approval
in violation of the Arms Control Export Act, 22 U.S.C. §
2778; see also 22 C.F.R. §§ 121.1, 123.1,
appeal requires us to decide whether sufficient evidence
supports her conviction, including the decision of the jury
to reject her defense of entrapment; whether the district
court abused its discretion in admitting evidence of the
conspirators' communications; whether her sentence is
procedurally and substantively reasonable; and whether the
government failed to disclose exculpatory evidence, Brady
v. Maryland, 373 U.S. 83 (1963). Between 2011 and 2013,
Man participated in a series of discussions with Xingsheng
Zhang, a Chinese operative; Jerry Liu, an undercover agent
with the Department of Homeland Security; and an unnamed,
unindicted person about how to purchase and export to China
military aircraft engines, a military drone, and related
technical data. Although the sale never occurred, the United
States charged Man with conspiring to violate the Act. At
trial, Man contended that insufficient evidence established a
conspiracy and that she was entrapped. She also
unsuccessfully objected to the admission of some of the
conspirators' communications as either hearsay or prior
bad acts. The jury convicted Man, and the district court
sentenced her to 50 months of imprisonment after rejecting
her argument that she was entitled to a downward adjustment
for her minimal role in the scheme. On appeal, Man reiterates
her earlier arguments and argues for the first time that the
district court erroneously sentenced her on the basis of her
national origin and that the government failed to provide her
with a copy of an email. We affirm.
divide the background in two parts. First, we describe the
facts. Second, we explain the procedural history.
Man is a resident and citizen of the United States who was
born in China. She and her husband owned a company that
produced electronic components for military applications. But
her interest in military hardware went beyond this legitimate
February 27, 2011, Man received an email from an account with
the name "hrkj2006" that asked her about engines
used in military aircraft. The email read as follows:
Inquiry. Hi, Sister. Can you check if you are able to find
the following [aircraft engines]: Manufacturer Lockheed
Martin, Model 1, F100 Pratt & Whitney 229 or F110 General
Electric 129. Two, F119 Pratt & Whitney 100 or F119 Pratt
& Whitney 119, three pieces each.
days later, Man inquired about these engines in an email to
Matthew McCauley, who worked for an international electronic
sales company that distributed capacitors manufactured by
Man's company. McCauley responded that he could "get
[her] the engines, but [her] customer w[ould] need to pick
them up in the United States." Man sent a reply email
that provided a revised list of engines. She also stated in
the email that, "[i]f there [was] any export problem,
[they would] have to give up."
reported this exchange to the Department of Homeland
Security. At the direction of the Department, McCauley
emailed Man on September 13, 2012. He told her he had located
a seller who would allow Man's "customer [to] pick
up the engines outside the United States." Man replied
that she was "glad to hear from [McCauley]" and
would speak with her customer. The next day, Man confirmed to
McCauley that her "customer . . . still need[ed] th[e]
engine[s], " and she asked if "it [was] possible to
[ship the engines to] Hong Kong."
later gave McCauley more information about the nature and
purpose of her inquiries. She informed him that the Chinese
government would provide the money for the sale, that her
customer had "made similar transaction[s] with Russia,
" and that she would receive a "commission"
when the deal closed. But she refused to give McCauley
additional details because "the procedure [was] very
complicated and risky." And when Man asked McCauley for
additional information about the seller-including whether
"he [was] Chinese"-she stressed that McCauley
"need[ed] to make [sure that] the seller is not from
[the Federal Bureau of Investigation] because . . . sometimes
the [Bureau] officer[s] disguise [themselves as] seller[s]
to find spy activities."
"seller, " Jerry Liu, was an undercover agent with
the Department of Homeland Security. McCauley provided Man
with Liu's phone number on September 20, 2012, and Man
called Liu "within a few hours." After Liu
confirmed to Man that he was "Chinese, " Man
explained that she was looking for military engines.
Liu discussed legal obstacles to the export of the engines.
Liu informed Man that he "[u]sually . . . need[ed] a
license to send [the engines] outside" of the country
and that a license for export to China "might be a
little difficult." He also told her that she should
"try to get a license first, " but that "[i]f
[that] doesn't work, then [they could] talk." Man
quickly responded that she would "not get this
license." She explained that the "[United States]
prohibits sending [these kinds of engines] to China" and
that this barrier was why her "friends in mainland
China" "need[ed] [her] to do it." Liu then
proposed sending the engines "to a third country[, ] and
then from [there], selling abroad to China." Man agreed
to this plan after underscoring that "[n]o mistake[s]
provided Liu with the name of her customer, Xingsheng Zhang,
and Zhang's phone number and email address. She explained
to Liu that she "was introduced [to Zhang] through
another friend who smuggles arms to China." Man also
reiterated that her clients were "scared of any mistake,
" and Liu confirmed that "[they] would be in
trouble" "[i]f [they] found the wrong person."
And she reminded Liu that they had "to be very
careful" because "any mistakes" would be
fears of legal trouble reemerged in later conversations
between her and Liu. For example, she told Liu that, "if
there were no embargo . . ., [her clients] would not need . .
. [their] help." She also explained that she and
McCauley "stopped" their earlier dealings because
she "really [didn't] want to touch anything that is
in violation of the law" and "[didn't] have any
solution" for "get[ting] [the engines] out of the
[United States]." Despite these concerns, Man and Liu
continued to discuss the price of the engines, how to ship
through a third-party country, and Man's
"commission" for the sale.
then sent an email in English to Zhang, Man's customer.
He did not copy Man on the email, so he called her to ask
whether Zhang could understand English. Man informed Liu that
Zhang had received the email but that "[h]is English
[was] not good." Man also told Liu that Zhang had
additional technical questions about the engines, and Liu
promised to call Zhang shortly. Man suggested that Liu should
try to call in the morning because of Zhang's schedule.
And she again expressed concern about how to "hide"
the engines and "get them out" of the country. In
the light of these difficulties, she told Liu that Zhang
might be satisfied with the "technical materials"
instead of the engines.
Zhang confirmed that he was interested in the technical
"drawings and information" for the engines, Man and
Liu discussed financial terms, Man's "profit, "
and how to ship through a third-party country. In one
conversation, Man suggested that she thought that
"shipping to a third country instead of shipping
directly to China" was "legal." But Liu
replied that he had done "research" and found that
"ship[ment] . . . to China is totally illegal" and
that "ship[ping] this stuff to China is a violation of
the law." He also explained that his "agent"
would "require some payment in order to protect
himself" because he would be "taking [a]
risk." Man again suggested that a third-party shipment
would be "legal." But she then rejected Liu's
suggestion that she handle the transaction through her
corporate bank account because "[a] deposit of a large
sum is troublesome." She also instructed Liu not to tell
his supplier that the engines are "going to China"
and that "the information that this stuff is shipping to
China should stop with [him]" "[b]ecause there are
many federal agents investigating." And she agreed with
Liu that they were "tak[ing] on the highest risk"
because they "live[d] in the [United States]."
Finally, she directed Liu to not "get [her]
involved" "[i]f [he] g[o]t caught."
also provided Liu with additional detailed information about
Zhang. Man explained that Zhang was "working for the
Chinese military[, ] sort of like a tech spy, " and that
he was "trying to find [advanced technology] to provide
shortcuts for our country." She also told Liu that Zhang
worked for the "China National Aviation
Corporation" and that she was hoping to expand her
legitimate electronics business into China through Zhang.
communications between Liu and the individual conspirators
followed the same pattern. Liu and Zhang would discuss the
engines, technical data, pricing, and shipment details, and
Liu then would call Man to update her and to discuss prices,
her compensation, and the legal risks of their plan. Liu also
emailed Man a "business plan" that specified that
the engine "distributor will not know the final
destination of the engines" and that "the buyer
will not know the identity of the . . . distributor."
Liu and Man later discussed this "business plan"
and the technical details of the engines over the phone.
Zhang also expressed strong interest in military hardware
other than the engines. At one point, Man informed Liu that
Zhang "need[ed] material information [about a] drone
aircraft." Liu then spoke with Zhang, who confirmed that
he wanted "the most advanced" "drone
aircraft." After Liu again spoke to Man, he informed
Zhang that he could procure a MQ-9 Reaper drone, but that
shipment to China was "totally prohibited" and
"a crime in the [United States]." Zhang responded
that he would "think about other means" to get the
reported this conversation to Man and asked her to assist in
translating technical information. He also confirmed
Man's belief that that the drone was "prohibited for
export to China." Despite this obstacle, Man confirmed
that her buyer was interested in obtaining both the actual
drone and its "software" and "mathematical
model." Man explained that the software was necessary to
"modify" the drone because, if China produced an
"identical" drone, "people would know right
away that [they] stole it, which is not allowed."
next emailed Zhang a "false flight schematic" for
the drone, and Zhang demanded additional data. Liu also sent
the fake schematic to Man. He later called her to review the
schematic and told her that, "by [his] sending out this
page, " "all of [them] [had] . . . committed a
Liu also discussed purchasing a military decoy aircraft
manufactured in Sweden. In a phone call, Man explained that
Zhang was interested in "buying or getting a quote for
something like [the decoy], " and she sent a follow-up
email with the specific items sought by Zhang. Man and Liu
again spoke over the phone, and Liu stated that he would
"try to contact people [he] kn[e]w in Europe to see if
they [had] any contact with th[e] [manufacturer]." Man
also suggested that Liu "could try calling" Zhang
about the decoy, and she recommended that Liu do so "in
the morning [because Zhang] . . . is a night owl." Man
and Liu also discussed having Man's "company sponsor
[Zhang] so he could come [to the United States]."
sale never occurred. Zhang expressed concerns about how
quickly Liu could procure the goods, about whether Liu could
provide full information about the drone, and about the price
of the drone. Liu and Man discussed these obstacles and
payment terms, and Man suggested that she would attempt to
persuade Zhang to close the deal. She also discussed using
"her company to sponsor either . . . Zhang or [an]
engineer to come over on [a] visa [and] examine th[e]
documents, " even though she thought that viewing the
documents was "illegal." And she told Liu that
Zhang "was hesitant to talk much over the phone
[because] phone calls in the [United States] are under
surveillance." She also expressed her own concerns about
the deal and explained that she had "lost so much
money." Finally, on June 20, 2013, Zhang told Liu that,
although he was "eager" to make the deal, he was
unconvinced that Liu could "deliver" and that the
sale was off. Liu arranged to meet Man in person on September
1, 2015, and federal agents arrested Man at the meeting.
United States charged Man and Zhang with conspiracy to export
defense articles without a license, but it was unable to
apprehend and prosecute Zhang. The parties stipulated that
the Arms Control Export Act, 22 U.S.C § 2778, applied to
the aircraft engines and the drone at the time of Man's
actions, that a "license . . . was required to export
any of these items, " and that neither Man nor Zhang,
"[n]or any company or entity ...