                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11304                ELEVENTH CIRCUIT
                                                              APRIL 1, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                     D. C. Docket No. 05-60238-CR-JIC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

SHAHRAZAD MIR GHOLIKHAN,
a.k.a. Farideh Fahimi,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (April 1, 2010)

Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

     Appellant Shahrazad Mir Gholikhan appeals her convictions, following a
jury trial, for committing three offenses involving the sale, or attempted sale, to the

government of Iran of military equipment of the United States, to-wit: Generation

III Night Vision Goggles (“Goggles”).1 After the district court imposed sentence,

concurrent prison terms of sixty-three months each, she took this appeal

challenging her convictions.2 She seeks the vacation of her convictions and the

dismissal of the charges under the Double Jeopardy Clause. Alternatively, she

seeks a new trial on the grounds that the district court abused its discretion in

admitting the lay opinion testimony of a federal agent that the voice on monitored

telephone calls was appellant’s, and in instructing the jury regarding appellant’s

prior conviction in Austria.

       The charges for which appellant stands convicted stemmed from a

Department of Homeland Security investigation of individuals who might be



       1
          Appellant was convicted of three counts of a seven-count indictment and acquitted on
four counts. The convictions were on Count 1, willfully engaging in and attempting to engage in
prohibited brokering activities by acting as an agent of the Islamic Republic of Iran in arranging
contracts, purchases, sales and transfers of defense articles (Generation III Night Vision
Goggles) in return for a fee or other consideration, without first obtaining a license or approval
from the United States Department of State, Directorate of Defense Trade Controls, in violation
of 22 U.S.C. § 2778, 22 C.F.R. §§ 129.2(a) and (b) and 129.5(b); Count 2, willfully exporting
defense articles (the Generation III goggles) from the United States to Iran, without first
obtaining a license or approval from the Department of State, Directorate of Defense Trade
Controls, in violation of 22 U.S.C. § 2778, 22 C.F.R. §§ 121.1, 123.1, and 127.1; and Count 7,
exporting, attempting to export, and re-exporting defense articles from the United States to Iran,
in violtion of 50 U.S.C. § 1705 and 31 C.F.R. §§ 560.204 and.205.

       2
           Appellant does not question the sufficiency of the evidence to convict.

                                                 2
involved in the illegal sale to Iran of, among other items, equipment designed and

manufactured for use by United States military forces. The investigation began

in 2002. To ferret out individuals who might be involved in such sales,

Immigration and Customs Enforcement used a confidential informant (“CI”), and

set up a front business, Gateway Trading Group (“Gateway”), which operated

under the direction of Special Agent Ronald Kriske. As the investigation

unfolded, several suspects surfaced, including appellant, Hamid Kargar,

Mahmoud Seif, Shirin Shahrabi, and Farideh Fahim; they appeared to be working

together. Kargar was the first to surface; he emailed the CI stating that he wanted

to procure hundreds, and later thousands, of Goggles for the government of Iran.

Gateway responded with a fax from “Alex Patrice,” the CI, whose gave his email

address as GatewayPatrice3@Earthlink.net. The fax was sent to Kargar’s fax

numbers in Iran and the United Arab Emirates and quoted the price and other

specifications for the Goggles. Negotiations between Kargar and the CI

regarding the anticipated sale continued in a series of emails and telephone

conversations. Agent Kriske monitored the phone conversations between the CI,

Kargar and the other suspects as they occurred and instructed the CI on how to

respond.

      On September 21, 2003, Alex emailed Kargar at



                                         3
HamidKargar@TehranNara.com, requesting a transfer to Gateway’s bank

account of $9,750 for a sample of the Goggles. Kargar responded with his

requests for samples and noted the need to test the equipment in Tehran. The CI

subsequently received an email from an individual named Shirin Shahrabi,

attaching a letter signed by Mahmoud Seif and instructing Gateway that further

communications regarding technical details and negotiations would be handled

by Kargar or Ms. Shirin Shahrabi, that arrangments for payments would be

handled by a Mr. Shahkhani, but that all orders must be confirmed by a signature

from Seif.

      Later communications from Kargar, who had been using the corporate

name Tehran Nara, informed the CI that “Miss Farideh Fahimi, with the email

Address [sic] of F-Fahimi@NoorAlFath.com,” would be in contact to coordinate

delivery of the sample which had been paid for in the earlier wire transfer. On

August 3, 2004, an individual identifying herself as “Farideh” sent an email to

GatewayPatrice3@Earthlink.net, addressed to “Mr. Alex,” introducing herself as

Ms. Farideh Fahimi, an employee of Noor Al Fath, and asking to arrange a time

and place for the delivery of the Goggle samples. Farideh followed up this email

with a fax asking for an urgent reply. Arrangements were then made for the

delivery of the samples in Vienna, Austria.



                                         4
      After this, Kargar instructed the CI that further arrangements should be

made with Fahimi, directly, at her email address. Thereafter, Fahimi continued

the negotiations with the CI over delivery of the samples and the arrangements

for the meeting in Vienna. She left several voice-mail messages and followed up

with emails and faxes to the CI. On October 18, 2004, Agent Kriske listened in

as the CI spoke to “Fahimi” in three recorded telephone conversations, during

which she referred to the fax and email correspondence she had had with”Alex.”

Kriske monitored another call between Fahimi and the CI on October 19, 2004.

Fahimi followed this conversation with a fax to “Alex” the next day. Kriske

monitored further calls from Fahimi to “Alex” and one occasion, in the CI’s

absence, she spoke to Kriske, posing as a technical advisor to “Alex.” The

investigation came to a head after a meeting was arranged; it would take place in

Vienna on November 30, 2004. Agent Kriske knew that Fahimi would be

traveling with Seif to Vienna for the meeting, so he contacted Austria’s Federal

Agency for State Protection and Counterterrorism to assist in the investigation.

On November 30, Austrian and American officials, acting undercover, met with

Seif and the appellant, who identified herself as Farideh Fahimi. At the meeting,

the CI, posing as “Alex,” identified the Goggles he was prepared to deliver, and

Seif and appellant agreed to accept delivery. At the end of the meeting, as Alex



                                         5
showed Seif and appellant the Goggles, uniformed agents arrested them. The

Goggles transaction violated Austrian law as well as the law of the United States.

Appellant subsequently pled guilty in Austria to the Austrian violation.

      Against this background, we address the grounds of appellant’s appeal.

We start with the double jeopardy challenge.

                                I. Double Jeopardy

      Appellant argues that the district court should have granted her motion to

dismiss the indictment because the instant prosecution violates the Double

Jeopardy Clause of the Fifth Amendment. Further, she contends that the “sham

prosecution exception” to the dual sovereignty doctrine applies here.

      “A district court’s double jeopardy ruling raises a question of law, which

[we] review[] de novo. When a defendant moves to dismiss an indictment on

double jeopardy grounds, [s]he bears the initial burden of establishing a

nonfrivolous prima facie claim” United States v. Baptista-Rodriguez, 17 F.3d

1354, 1360 (11th Cir. 1994) (citations ommitted).

      The Fifth Amendment provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“This guarantee protects defendants against successive prosecutions for the same

criminal offense.” Baptista-Rodriguez, 17 F.3d at 1360. However, “elementally



                                         6
identical offenses are nevertheless different for purposes of the Double Jeopardy

Clause when they are charged by separate sovereigns. This dual sovereignty

doctrine is rooted in the common-law conception of crime as an offense against

the sovereignty of a government.” Id. (citations and quotations omitted).

      In Bartkus v. Illinois, 359 U.S. 121, 123-24, 79 S.Ct. 676, 678, 3 L.Ed.2d

684 (1959), the Supreme Court noted that the record did not support a claim that

the State of Illinois, in bringing its prosecution, was merely a tool of federal

authorities or that the state prosecution was a sham. Baptista-Rodriguez, 17 F.3d

at 1361. “From this language courts have inferred a sham prosecution exception

[to dual sovereignty]. To fit within the exception, the defendant must show that

one sovereign was so dominated, controlled, or manipulated by the actions of the

other that it did not act of its own volition.” Id. (citations omitted). This court

has repeatedly declined to confront the validity of the sham prosecution in those

cases where the defendant had failed in any event to demonstrate sham

prosecutions. Id. “Self-serving conclusions are insufficient to establish a prima

facie case under a narrow exception to the dual sovereign doctrine.” Id. at 1362.

“Evidence that one sovereign dominated the investigation” may bolster a sham

prosecution claim, but “factual allegations [] relating to the investigation alone

[are] insufficient to” qualify for the sham prosecution exception to the dual



                                           7
sovereignty doctrine. Id. at 1362 n.7.

      The district court committed no error in denying appellant’s motion to

dismiss the indictment because successive prosecutions by separate sovereigns,

such as Austria and the United States, do not violate double jeopardy under the

doctrine of dual sovereignty. Further, even if a “sham prosecution” exception to

dual sovereignty exists, appellant has not met her burden of establishing that the

United States so “dominated, controlled, or manipulated” the Austrian

prosecution such that Austria was not acting of its own volition. Baptista-

Rodriguez, 17 F.3d at 1361.

                        II. Lay Witness Opinion Testimony

      Appellant argues that the district court abused its discretion in admitting

into evidence lay witness opinion testimony, pursuant to Federal Rule of

Evidence 701, that identified her voice. Further, she argues that even if the

testimony was admissible under Rule 701, the district court should have excluded

it as unduly prejudicial under Federal Rule of Evidence 403.

      We review evidentiary rulings for abuse of discretion. United States v.

Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The district court abuses its

discretion when the “decision rests upon a clearly erroneous finding of fact, an

errant conclusion of law, or an improper application of law to fact.” Id. Reversal



                                         8
is not warranted “where an error had no substantial influence on the outcome, and

sufficient evidence uninfected by error supports the verdict.” United States v.

Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006).

      A speaker’s voice may be identified by opinion testimony “based upon

hearing the voice at any time under circumstances connecting it with the alleged

speaker.” Fed. R. Evid. 901(b)(5). A lay witness’s opinion testimony may be

admitted if it is “(a) rationally based on the perception of the witness, (b) helpful

to a clear understanding of the witness’s testimony or determination of a fact in

issue, and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Fed. R. Evid. 701. Concerning the Rule 701's

first prong of the test for admissibility, we have held that “the opinion of a lay

witness on a matter is admissible only if it is based on first-hand knowledge or

observation.” United States v. Marshall, 173 F.3d 1312, 1315 (11th Cir. 1999).

As to the Rule’s second prong, we have held that lay opinion identification

testimony was “helpful. . . to the determination of a fact in issue” where there

was some basis for concluding that the witness was more likely to correctly

identify the defendant from a surveillance photo than the jury. United States v.

Pierce, 136 F.3d 770, 775 (11th Cir. 1998). In this regard, in Pierce, we noted

that the witnesses had become familiar with the defendant’s appearance and



                                           9
facial features over time. Id.

      The Federal Rules of Evidence provide that only relevant evidence is

admissible. Fed. R. Evid. 402. However, Rule 403 permits the exclusion of

evidence if the probative value of that evidence “is substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403. “[B]ecause it permits a trial

court to exclude concededly probative evidence, Rule 403 is an extraordinary

remedy which should be used sparingly.” United States v. King, 713 F.2d 627,

631 (11th Cir. 1983). Further, in a criminal trial relevant evidence is inherently

prejudicial; therefore, Rule 403 only permits the exclusion of probative evidence

when “unfair prejudice substantially outweighs probative value.” Id. In Pierce,

we cautioned that “[i]dentification testimony from law enforcement. . . may

increase the possibility of prejudice to the defendant [] by highlighting the

defendant’s prior contact with the criminal justice system, if the witness’s

occupation is revealed. . .” Pierce, 136 F.3d at 776. Nonetheless, the district

court does not abuse its discretion in admitting such testimony when the jury is

otherwise aware of a defendant’s criminal history and the defendant does not

identify any unfair prejudice stemming from the admitted testimony. See id.

      We find no abuse of discretion in the admission of the challenged

testimony regarding voice recognition because the testimony was rationally based



                                         10
on the perception of the witness, it was helpful to the jury, and it was not based

on scientific, technical, or other specialized knowledge. Fed. R. Evid. 701.

Further, the district court’s determination that the testimony’s prejudicial impact

did not substantially outweigh its probative value was not clearly erroneous.

Baker, 432 F.3d at 1202.

                        III. Double Jeopardy Jury Instruction

      Appellant argues that the district court erred when, at the government’s

request, the court instructed the jury that her Austrian conviction did not bar the

instant prosecution. She asserts that the instruction prejudiced her because it

improperly indicated the court’s endorsement or approval of the government’s

prosecution.

      We review the legal correctness of a jury instruction de novo, but defer to

the district court on questions of phrasing absent an abuse of discretion. United

States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (citations omitted). We

find nothing incorrect about the instruction; it reflected the correct legal standard.

Nor do we find anything about the court’s phrasing of the double jeopardy issue

that could be considered confusing.

      Appellant’s convictions are, accordingly,

      AFFIRMED.



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