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United States v. Man

United States Court of Appeals, Eleventh Circuit

June 6, 2018

WENXIA MAN, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:14-cr-60195-BB-1

          Before WILLIAM PRYOR, JILL PRYOR, and BLACK, Circuit Judges.

          WILLIAM PRYOR, Circuit Judge:

         Wenxia 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, 127.1.

         Her 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.

          I. BACKGROUND

         We divide the background in two parts. First, we describe the facts. Second, we explain the procedural history.

         A. The Facts

         Wenxia 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 business.

         On 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.

         Two 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."

         McCauley 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."

         Man 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."

         The "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.

         Man and 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] [were] allowed."

         Man 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 "[v]ery troublesome."

         Man's 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.

         Liu 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.

         After 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."

         Man 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.

         Later 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.

         Man and 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 drone.

         Liu 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."

         Liu 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 crime."

         Man and 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]."

         The 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.

         B. Procedural History

         The 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 ...

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