United States v. Peter Sotis

USCA11 Case: 22-10256    Document: 38-1      Date Filed: 12/20/2023   Page: 1 of 32




                                                          [PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 22-10256
                           ____________________

        UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,
        versus


        PETER SOTIS,
                                                    Defendant-Appellant.


                           ____________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                     D.C. Docket No. 1:19-cr-20693-PAS-1
                           ____________________
USCA11 Case: 22-10256          Document: 38-1         Date Filed: 12/20/2023     Page: 2 of 32




        2                           Opinion of the Court                   22-10256

        Before WILLIAM PRYOR, Chief Judge, MARCUS, Circuit Judge, and
        MIZELLE,∗ District Judge.
        MIZELLE, District Judge:
               For the better part of three decades until its rescission in
        2006, the State Department designated Libya as a State Sponsor of
        Terrorism. See U.S. Dep’t of State, Country Reports on Terrorism
        2006, Chapter 3: State Sponsors of Terrorism Overview (Apr. 30, 2007),
        https://perma.cc/4N76-PFAN. As of today, the Department ad-
        vises United States citizens not to travel to Libya “due to crime,
        terrorism, civil unrest, kidnapping, and armed conflict.” U.S. Dep’t
        of State, Libya Travel Advisory (emphases omitted),
        https://perma.cc/D4GA-5S5P (July 13, 2023). And Libya has been
        subject to a United Nations Security Council Arms Embargo since
        February 2011. See S.C. Res. 1970 (Feb. 26, 2011). Perhaps unsur-
        prisingly, the Department of Commerce requires a license to ex-
        port certain products to Libya that implicate the United States’ na-
        tional security interests. See 15 C.F.R. Pt. 738, Supp. No. 1.
                This appeal involves Peter Sotis’s convictions for subverting
        that licensing requirement. It presents three issues. First, Sotis chal-
        lenges the sufficiency of the evidence to support each count of his
        conviction: (1) conspiracy to violate export controls; (2) export and
        attempted export of a Commerce Control List item to Libya with-
        out a license; and (3) smuggling. Second, Sotis claims that opinion


        ∗ Honorable Kathryn Kimball Mizelle, United States District Judge for the Mid-

        dle District of Florida, sitting by designation.
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 3 of 32




        22-10256               Opinion of the Court                         3

        testimony presented at trial invaded the province of the jury. And
        third, Sotis argues that his 57-month sentence was unreasonable.
        Because these arguments lack merit, we affirm.
                                  I. BACKGROUND
              We begin with a review of the statutory background, fol-
        lowed by the facts and the procedural history.
                                A. Statutory Background
               Under the Export Administration Act (EAA), the Depart-
        ment of Commerce’s Bureau of Industry and Security promul-
        gated the Export Administration Regulations (EAR) governing the
        export of certain types of products. See 50 App. U.S.C. §§ 4601–23;
        

. These regulations are “intended to serve the na-
        tional security, foreign policy, nonproliferation of weapons of mass
        destruction, and other interests of the United States.” 

. The International Emergency Economic Powers Act
        (IEEPA) “also authorizes the President to issue regulations govern-
        ing exports.” United States v. Singer, 

, 1149 (11th Cir.
        2020). Since the EAA lapsed in 2001, every President has taken ex-
        ecutive action under the IEEPA to order that the EAR remain in
        effect. 

 at 1149–50; see, e.g., Continuation of the National Emer-
        gency With Respect to Export Control Regulations, 

 (Aug. 16, 2023). Thus, it is a felony under the IEEPA to will-
        fully violate, attempt to violate, or conspire to violate the EAR. See
        

(a), (c).
              In part, the EAR controls the export of “dual use” items, see
        

.3—items that have both military and civilian
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 4 of 32




        4                      Opinion of the Court                 22-10256

        applications—because such items “could make a significant contri-
        bution to the military potential of other nations” or “could be det-
        rimental to the foreign policy or national security of the United
        States,” Singer, 963 F.3d at 1150. As such, the Department of Com-
        merce generally requires a license to ship any dual use item abroad.
        See 

. Commerce lists “the most sensitive items sub-
        ject to EAR controls on the Commerce Control List.” Singer, 963
        F.3d at 1150; see 15 C.F.R. Pt. 774, Supp. No. 1. (Commerce Control
        List). Each listed item receives an Export Classification Number
        that corresponds to a set of requirements for shipping abroad,
        cross-referenced with a chart of potential foreign destinations.
        Singer, 963 F.3d at 1150; 

(d); 

 Pt. 738, Supp. No.
        1 (Commerce Country Chart).
                When a person seeks to export a product subject to the EAR,
        Commerce must determine whether the exporter needs and
        should receive a license to export the product. Relevant to this ap-
        peal, “[m]arine systems, equipment, ‘parts,’ and ‘components’” are
        listed on the Commerce Control List under Classification Number
        8A002 and require a license to export to Libya for national security
        and antiterrorism reasons. See 15 C.F.R. Pt. 774, Supp. No. 1, Cat. 8
        (Commerce Control List); 

 Pt. 738, Supp. No. 1 (Commerce
        Country Chart). Specifically, a license is required to export “[c]losed
        circuit rebreathers” and “[s]emi-closed circuit rebreathers” to Libya
        unless the individual rebreather is intended for personal use and ac-
        companied by its end user. 

 Pt. 774, Supp. No. 1, Cat. 8 (Com-
        merce Control List).
USCA11 Case: 22-10256      Document: 38-1     Date Filed: 12/20/2023     Page: 5 of 32




        22-10256               Opinion of the Court                        5

                                 B. Factual Background
              Sotis was the majority shareholder of Add Helium, LLC, a
        Fort Lauderdale company that sold and exported diving equipment
        and provided diving training. Sotis owned Add Helium together
        with minority shareholder Shawn Robotka, but Sotis handled day-
        to-day operations as managing member. Emilie Voissem also
        worked at Add Helium, serving as a manager and Sotis’s “right-
        hand person.”
               In April 2016, Osama Bensadik, a Libyan national, contacted
        Sotis seeking to purchase four rEvo III rebreathers and other diving
        equipment as well as training in their use. Bensadik indicated that
        he intended to use the equipment to train Arabic-speaking users in
        Libya in association with his company, CODI Group. Bensadik
        asked Add Helium to coordinate with Mohammad and Diana
        Zaghab, owners of a Virginia export company, to ship the goods to
        Libya. This “very large order” totaled over $100,000, and Sotis in-
        structed his employees to get the order together “asap.” Sotis ex-
        plained that there was “nothing casual about completing this or-
        der” and he expected that if Add Helium did a good job, “this is just
        the beginning of what [Bensadik] will order.” Sotis also instructed
        that he wanted “to be kept in the loop about anything that has been
        ordered that is being delayed by a manufacturer for any reason
        what-so-ever,” stating that “[i]f there is any delay I want to know
        about it so I can get involved and help it along.”
             On July 27, 2016, after receiving and packaging the items for
        shipment, Voissem contacted Add Helium’s usual shipping
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023    Page: 6 of 32




        6                     Opinion of the Court                22-10256

        company to coordinate pickup. The same day, a representative
        from the shipping company informed Voissem that “[t]his ship-
        ment to Libya might be more complicated than originally
        thought,” and instructed Voissem to reach out to Commerce and
        the State Department “to see if [Add Helium] need[ed] any special
        license to ship” because “Libya is on [a] restricted list.”
               Voissem then contacted the Zaghabs to let them know that
        there would be a problem with shipping because Add Helium’s
        shipping company had “put an alert on [the shipment] due to the
        items [it contained] and that it was going to Libya.” Diana Zaghab
        told Voissem that Commerce would require a license for shipment
        for items “considered sensitive, high technology,” and asked
        whether Add Helium’s rebreathers could be classified as such or if
        they could “be deemed as dual use.” Voissem replied that “[t]he
        products being shipped are considered by us to be recrea-
        tional/technical diving equipment.” Voissem also explained that
        she had contacted a federal agent at Commerce who directed her
        to the Bureau of Industry and Security. The Commerce agent told
        Voissem, which she later conveyed to Sotis, “that shipping to Libya
        was probably not going to happen.”
                Around the same time, Voissem informed Sotis that the
        shipping company had told her that there were some “red flags”
        with the shipment. She relayed that “due to the current state of
        affairs each item has to be approved and allowed to be shipped”
        and that it was Add Helium’s “responsibility to clear the items with
        the Department of Commerce.” Sotis instructed Voissem to “look
USCA11 Case: 22-10256     Document: 38-1     Date Filed: 12/20/2023    Page: 7 of 32




        22-10256              Opinion of the Court                       7

        into the [D]epartment of [C]ommerce requirements” to “see how
        time consuming it might be” before making a determination on
        how to proceed. Later, he instructed Voissem to “let Mohamm[a]d
        [Zaghab] know” if contacting Commerce “turn[ed] into too much
        of a problem.”
               Afraid that Sotis would be “very upset with her” about being
        unable to ship, Voissem approached Robotka with her concerns.
        Robotka told Voissem that he did not think Add Helium could
        complete the shipment because the federal government viewed re-
        breathers as “hav[ing] a distinctive military application.” He also
        sent her a link to an Executive Order banning shipments to Libya.
        Voissem alerted Sotis to the Executive Order in a subsequent email
        where she also conveyed the message she had received from Com-
        merce: “that shipping to Libya was probably not going to happen.”
        Sotis replied that the Zaghabs were “going to have to find another
        route or handle [the shipment] from here” because Add Helium did
        “not need trouble from the government for making an illegal ship-
        ment.” Sotis instructed Voissem to let Bensadik and the Zaghabs
        “manage this problem” and to have them inform Add Helium
        “how they intend to receive their goods” since Add Helium could
        not ship to Libya. Acting on this understanding, Voissem agreed
        with Mohammad Zaghab that the Zaghabs’ shipping firm would
        handle the shipment instead of Add Helium’s usual partner.
              On August 4, a different Commerce official—Special Agent
        Brent Wagner—visited Add Helium to meet with Robotka,
        Voissem, and Voissem’s assistant to discuss the Libya shipment.
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023    Page: 8 of 32




        8                     Opinion of the Court                22-10256

        Although Sotis knew about the meeting, he was “very adamant”
        that he would not attend, instead arranging to be teaching a class
        elsewhere. Wagner delivered a presentation on export control law
        to the Add Helium employees in attendance, including Robotka
        and Voissem, and specifically noted that an exporter cannot try to
        circumvent the regulations by “just having somebody else do the
        shipping.” Wagner explained that Add Helium needed a license de-
        termination and potentially a license from Commerce before ship-
        ping the rebreathers and advised that they were unlikely to receive
        a license due to the rebreathers’ military application. He also
        agreed to apply for an expedited license determination on Add He-
        lium’s behalf and instructed the meeting participants that the ship-
        ment “was detained,” needed to “stay on the property,” and could
        not “go anywhere” until the licensing issue was resolved.
               Robotka briefed Sotis on the meeting later that day and in-
        formed him that Add Helium “could not release the shipment” and
        would have to wait for a license determination before the rebreath-
        ers could leave the warehouse. Sotis asked whether Add Helium
        could “ship somewhere else,” and Robotka explained that doing so
        would also be illegal. Despite that knowledge, Sotis instructed
        Voissem not to tell the Zaghabs about the meeting with Wagner.
        Sotis instead called Mohammad Zaghab and told him that a Com-
        merce agent came and “looked at the merchandise” but that the
        agent “didn’t say anything” or discuss the shipment with Add He-
        lium’s employees. Sotis did not mention the licensing requirements
        or the possibility that the rebreathers could have a military
USCA11 Case: 22-10256      Document: 38-1     Date Filed: 12/20/2023     Page: 9 of 32




        22-10256               Opinion of the Court                        9

        application, and Mohammad was left with the impression that
        Commerce’s visit was nothing more than a random inspection.
               On August 9, Voissem gave the shipment to a local transpor-
        tation company that the Zaghabs had hired. The shipment would
        not have left Add Helium’s warehouse without Sotis’s approval.
        After picking up the shipment, the Zaghabs’ shipping company
        transported it to Miami, where it was flown out en route to Libya.
               On August 17, Wagner called Add Helium and informed So-
        tis and Voissem that Commerce had preliminarily determined that
        Add Helium needed a license to ship the rebreathers to Libya and
        that “the shipment was going to be seized.” Neither Sotis nor
        Voissem told Wagner that the rebreathers had already been
        shipped. On August 24, Wagner met with Voissem and Robotka in
        person at Add Helium and again explained that they could not ship
        the rebreathers without a license. Toward the end of the meeting,
        Sotis joined the group and took Wagner and Voissem to his office,
        where he informed Wagner that the shipment was already en route
        to Libya. Wagner told Sotis to get the shipment back, but Sotis said
        there was nothing he could do. Wagner, however, was eventually
        able to divert the shipment to Miami where the rebreathers were
        seized.
               After the federal investigation began, Sotis and Robotka’s re-
        lationship deteriorated, resulting in Sotis locking Robotka out of
        the company and Robotka suing Sotis in state court for breach of
        contract. Sotis also threatened to kill Robotka if he cooperated
        with the investigation. Eventually, the federal government charged
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 10 of 32




        10                     Opinion of the Court                  22-10256

        Voissem and Sotis. But it did not charge the Zaghabs after deter-
        mining that they “had no idea what was going on.”
                                  C. Procedural History
               On October 24, 2019, the government indicted Voissem and
        Sotis for conspiracy to violate the IEEPA and the EAR in violation
        of 

; export and attempted export of a Commerce
        Control List item to Libya without a license in violation of 

(a) and (c), 

, and 

; and
        smuggling in violation of 

, 554(a).
               At trial, Sotis did not contest that the rEvo III rebreathers
        required a license to ship to Libya or that he did not obtain a license
        for them. The government called witnesses including Wagner, Mi-
        chael Tu (a senior engineer at Commerce who made the initial li-
        censing determination for the shipment), and Robotka.
                Wagner testified to his interactions with Sotis and Voissem.
        On cross examination, Voissem’s counsel asked Wagner whether
        civil penalties were an option he could have pursued instead of
        criminal penalties. On re-direct, the government asked whether
        Wagner had seen a case with “this level of willfulness.” Sotis ob-
        jected, but only to Wagner’s comparison to previous cases. The
        district court overruled the objection but later took up the matter
        with counsel. The district court explained that it had expected an
        objection to Wagner’s testimony about willfulness beyond the
        comparison issue, but ultimately did not take any further action.
             Tu, the Commerce official responsible for determining
        whether Add Helium needed a license to ship the rebreathers to
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023      Page: 11 of 32




        22-10256                Opinion of the Court                         11

        Libya, testified that he had determined that it did and informed
        Wagner as such. Explaining the technology at issue, Tu testified
        that a closed-circuit rebreather is a “device that a diver will use that
        will not produce any bubbles [when] the diver exhale[s],” and that
        a semi-closed-circuit rebreather “operate[s] under similar princi-
        ples” but releases “some exhalation gases.” Robotka testified, based
        on his experience as a diver and partial owner of Add Helium, that
        rEvo III rebreathers “don’t put out any bubbles” except perhaps “on
        the ascent.”
               Sotis moved for a directed verdict at the close of the govern-
        ment’s case, arguing that there was insufficient evidence to convict
        on each count and claiming that Wagner and Robotka were not
        credible witnesses. The district court denied the motion because
        credibility issues were properly for the jury to decide. The jury later
        found Sotis guilty of all three counts.
               The draft presentence investigation report calculated Sotis’s
        advisory sentencing range to be 121 to 151 months based on his
        criminal history category of I and a total offense level of 32. The
        Probation Office based its calculation on United States Sentencing
        Guidelines Manual § 2M5.2(a)(1) (Nov. 2018). The report also rec-
        ommended a two-level enhancement for obstruction of justice and
        a four-level enhancement for Sotis’s leadership role.
               Sotis made a number of objections to the report at his sen-
        tencing: (1) to language in the report stating that rEvo III rebreath-
        ers have an adaptive military use; (2) to the use of § 2M5.2 to deter-
        mine his base offense level; (3) to the failure to grant a downward
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 12 of 32




        12                     Opinion of the Court                  22-10256

        departure to level 14 based on § 2M5.2 Application Notes 1 and 2;
        (4) to the four-level enhancement based on his alleged leadership
        role; and (5) to the two-level enhancement for obstruction of jus-
        tice based on his alleged threat to Robotka. Sotis argued that the
        most appropriate guideline was § 2B1.1, which pertains to fraud
        crimes. The government responded that, if the court concluded
        that § 2M5.2 was not the most appropriate guideline, Sotis should
        be sentenced under § 2M5.1(a)(1) instead of § 2B1.1.
                The district court held a two-day sentencing hearing, during
        which it ultimately agreed with the presentence investigation re-
        port that § 2M5.2(a)(1) was the most appropriate guideline over So-
        tis’s renewed objection. The court departed downward five levels
        to 21 based on Application Note 2, which contemplates a departure
        based on “the degree to which the violation threatened a security
        or foreign policy interest of the United States, the volume of com-
        merce involved, the extent of planning or sophistication, and
        whether there were multiple occurrences.” U.S.S.G. § 2M5.2, cmt.
        n.2. The district court reasoned that “there was no evidence at trial
        as to the degree to which . . . this violation threatened a specific se-
        curity or foreign policy interest of the United States”; the company
        “did not actively recruit a marketing scheme to sell [rebreathers to]
        Libya”; and that the sale represented “a hope of future business”
        constituting, “at best, an ad hoc plan[]” that resulted in a “one time”
        sale. The court overruled Sotis’s objections and applied a two-level
        obstruction enhancement and a two-level leadership enhancement,
        which brought his total base offense level to 25 and resulted in a
        guidelines range of 57 to 71 months. Sotis objected to the court’s
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 13 of 32




        22-10256               Opinion of the Court                         13

        refusal to depart downward further under Application Note 2. The
        court imposed a sentence of 57 months followed by three years of
        supervised release.
                            II. STANDARDS OF REVIEW
                We review sufficiency of the evidence claims de novo, view-
        ing the evidence in the light most favorable to the jury’s verdict,
        and “will affirm if a reasonable jury could find that the evidence
        demonstrates the defendant’s guilt beyond a reasonable doubt.”
        Singer, 963 F.3d at 1155. The same standard applies to the question
        of whether a material variance occurred between the indictment’s
        allegations and the evidence presented at trial. United States v. Gold-
        stein, 

, 1198 (11th Cir. 2021). In that context, we will
        affirm if “viewing the evidence in the light most favorable to the
        government as we must do in all sufficiency claims, . . . a reasona-
        ble jury could have determined beyond a reasonable doubt” that
        there was no variance and substantial evidence supports that deter-
        mination. United States v. Calderon, 

 (11th Cir.
        1997). “[I]f . . . there is a material variance, we then determine
        whether any substantial prejudice resulted to the defendant[].” 

               Unpreserved claims that a witness invaded the province of
        the jury are reviewed only for plain error. See United States v. Marga-
        rita Garcia, 

 (11th Cir. 2018).
                As for sentencing challenges, we review de novo whether the
        district court applied the correct provision under the Guidelines.
        United States v. Belfast, 

 (11th Cir. 2010). When the
        legal question of which guideline is correct is fact-bound, we
USCA11 Case: 22-10256     Document: 38-1       Date Filed: 12/20/2023   Page: 14 of 32




        14                     Opinion of the Court                22-10256

        review only for clear error. 

 “Applying this standard, we will not
        find clear error unless our review of the record leaves us with the
        definite and firm conviction that a mistake has been committed.”
        United States v. White, 

 (11th Cir. 2003) (altera-
        tions accepted) (quotations omitted). Finally, we review the sub-
        stantive reasonableness of a criminal sentence for abuse of discre-
        tion, considering the totality of the circumstances. United States v.
        Docampo, 

 (11th Cir. 2009).
                                  III. DISCUSSION
               We address the issues on appeal in three general categories:
        (1) sufficiency of the evidence; (2) improper opinion testimony;
        and (3) sentencing.
                              A. Sufficiency of the Evidence
               Sotis advances three sufficiency arguments. He first claims
        that the evidence was insufficient to prove willfulness. Second, he
        contends that the evidence was insufficient to prove that he partic-
        ipated in a conspiracy with Voissem. Third, he argues that the gov-
        ernment charged but failed to prove through sufficient evidence
        that the rEvo III rebreathers were closed circuit, resulting in a ma-
        terial and prejudicial variance from the indictment. Sotis made
        some of these objections at trial and raises others for the first time
        on appeal. None are availing, even under de novo review.
                                     1. Willfulness
              Sotis first argues that there was insufficient evidence for the
        jury to find that he acted willfully. Because he had “actual
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 15 of 32




        22-10256               Opinion of the Court                         15

        knowledge” that “the rEvo IIIs had been rejected for military appli-
        cation,” Sotis says, he did not realize the rebreathers could be con-
        sidered dual use or controlled for export under the EAR. Instead,
        Sotis claims that it was the Zaghabs’ responsibility to investigate
        and obtain any necessary license. To this end, Sotis offers a detailed
        timeline that he says shows his and Voissem’s reliance on Diana
        Zaghab’s communications with them that the shipment did not re-
        quire a license. This theory amounts to an argument that Add He-
        lium’s emails with the Zaghabs demonstrate a good faith effort to
        follow the law, not willful disregard of it. We disagree.
                 To prove a felony violation of the IEEPA and the EAR, the
        government needed to present evidence that Sotis willfully caused
        or attempted to cause the export of an item on the Commerce Con-
        trol List for which he failed to obtain a license. 

(a),
        (c). To prove willfulness under the IEEPA, “the government need
        not directly demonstrate that the defendant knew the facts that
        made his conduct a violation of the law.” Singer, 963 F.3d at 1158
        (emphasis omitted). Instead, prosecutors “may present evidence
        that [the United States] engaged in ‘affirmative efforts’ to warn the
        defendant of the regulatory requirement he later violated or that
        the defendant’s conduct indicated that he knew of the fact that a
        regulation or statute prohibited his conduct at the time he engaged
        in it.” Id.
                The government furnished such evidence by introducing
        emails from Voissem telling Sotis that it was Add Helium’s respon-
        sibility to make sure the shipment complied with Commerce’s
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 16 of 32




        16                     Opinion of the Court                  22-10256

        export control regime. Wagner’s testimony that he instructed
        Voissem and other Add Helium employees that the shipment
        could not leave the warehouse until Commerce made a licensing
        determination was further proof of scienter. And the evidence was
        sufficient for a reasonable jury to find that Sotis knew he would still
        violate the EAR by shipping through an intermediary because Ro-
        botka told Sotis after meeting with Wagner that doing exactly that
        would be illegal. The jury could also infer from Sotis’s email to
        Voissem stating that the company did “not need trouble from the
        government for making an illegal shipment” that he was more than
        aware of Add Helium’s legal jeopardy but decided to ship the re-
        breathers anyway.
               Sotis’s attempt to shift blame to the Zaghabs fails. Sotis ar-
        gues that he and Voissem delegated the licensing determination to
        the Zaghabs, and that the rebreathers were shipped because the
        Zaghabs made a mistake. But as the government rightly responds,
        the Zaghabs lacked the requisite mens rea because Sotis and
        Voissem intentionally kept them in the dark about the instructions
        Commerce had given about the shipment. If Sotis and Voissem had
        truly delegated the licensing determination to the Zaghabs, they
        would have kept them apprised of Commerce’s communications.
        Instead, Sotis lied to Mohammad Zaghab when he told him that
        Commerce “didn’t say anything” about a license determination for
        the rebreathers. That deliberate omission left the Zaghabs with the
        impression that Wagner’s visit had been a random search, of no
        importance to whether the rebreathers required an export license
        to be shipped to Libya. Viewing this evidence in any light, much
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023     Page: 17 of 32




        22-10256               Opinion of the Court                        17

        less the light most favorable to the government, a reasonable jury
        could have found that Sotis had sufficient knowledge of the illegal-
        ity of his conduct to have willfully violated the export control laws.
        See, e.g., United States v. Maurya, 

, 841–42 (11th Cir.
        2022).
                                     2. Conspiracy
               Next, Sotis argues that the evidence was insufficient to prove
        that he and Voissem acted in conspiracy. To prove conspiracy, the
        government needed to prove that Sotis knew of the unlawful plan,
        willingly joined in it, and committed at least one overt act to carry
        out the agreement. 

; see United States v. Adkinson, 

 (11th Cir. 1998).
                As previously explained, the government presented suffi-
        cient evidence that Sotis knew it was illegal to export the rebreath-
        ers without approval from Commerce, even if he used a third party
        to complete the shipment. The government also presented suffi-
        cient evidence that Sotis willingly joined Voissem in shipping the
        rebreathers despite government warnings because the record
        proves that he instructed Voissem to have the Zaghabs take over
        shipping. Sotis further instructed Voissem not to tell the Zaghabs
        about the licensing requirements. Robotka testified that the re-
        breathers would not have left Add Helium’s warehouse without
        Sotis’s approval. And Sotis attempted to conceal that fact by failing
        to inform Wagner that the shipment was on its way to Libya when
        Wagner contacted Add Helium on August 17. Viewing this evi-
        dence in the light most favorable to the verdict, the government
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023     Page: 18 of 32




        18                     Opinion of the Court                 22-10256

        sufficiently proved that Sotis conspired with Voissem to violate the
        export control laws.
                           3. Closed-Circuit Rebreathers
               Finally, Sotis argues that there was insufficient evidence to
        convict him because the government failed to prove that the rEvo
        III rebreathers he exported were closed-circuit rebreathers as al-
        leged in the indictment. Sotis claims that this failure prejudiced him
        because some types of rebreathers are not controlled for export to
        Libya. He largely points to evidence presented at sentencing to
        claim that rEvo III rebreathers were rejected for military use and
        thus could not have been controlled for export. Sotis further con-
        tends that the government failed to prove that the shipment of re-
        breathers was directed to a dangerous person to be used for a dan-
        gerous purpose. This series of arguments boils down to a conten-
        tion that the evidence at trial was a “material variance” from the
        allegations in the indictment, resulting in substantial prejudice.
                The indictment states, in relevant part, that “[a] re-
        breather . . . absorbs the carbon dioxide of a scuba diver’s exhaled
        breath to permit the rebreathing (recycling) of each breath. This
        technology produces no bubbles, thereby concealing the diver’s ac-
        tivities from those on the surface, and allowing a diver to stay un-
        derwater longer compared with normal diving equipment.” The
        indictment specifies that “rEvo III rebreathers (‘rebreathers’) are on
        the Commerce Control List and are classified by the Department
        of Commerce, Bureau of Industry and Security under [Export Clas-
        sification Number] 8A002.q.1 (closed-circuit rebreathers). An
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 19 of 32




        22-10256               Opinion of the Court                         19

        export license was required from the Department of Commerce to
        export them to Libya.”
                To establish a material variance, Sotis must show that (1) the
        facts proved at trial materially deviated from the facts alleged in the
        indictment, and (2) he suffered substantial prejudice as a result. See
        United States v. Chastain, 

 (11th Cir. 1999). To
        satisfy the first element, Sotis must show that there was not “sub-
        stantial evidence such that a reasonable jury could have deter-
        mined beyond a reasonable doubt” that the rEvo III rebreathers
        were closed circuit and could not be exported to Libya without a
        license from Commerce. See Calderon, 

. In evaluat-
        ing prejudice, we ask “whether the proof at trial differed so greatly
        from the charges that the defendant was unfairly surprised and was
        unable to prepare an adequate defense.” Goldstein, 989 F.3d at 1199
        (alterations accepted) (quoting United States v. Lander, 

 (11th Cir. 2012)).
               We assume without deciding that the facts proved at trial
        materially deviated from the facts alleged in the indictment, but we
        hold that Sotis failed to prove that he was prejudiced by the vari-
        ance. Sotis conceded at trial that the rebreathers were on the Com-
        merce Control List, required a license, and that Add Helium did
        not obtain a license before attempting to export them. And even if
        the government had failed to prove that the rebreathers were
        closed circuit, it would have proved that they were at least semi-
        closed circuit and thus subject to identical export control require-
        ments. See 15 C.F.R. Pt. 774, Supp. No. 1, Cat 8 (Commerce
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 20 of 32




        20                     Opinion of the Court                  22-10256

        Control List). Thus, even the material variance Sotis alleges would
        not have prevented him from preparing an adequate defense.
                                  B. Opinion Testimony
               Moving to his next tranche of arguments, Sotis contends
        that one expert witness, Tu, and one lay witness, Wagner, invaded
        the province of the jury by opining on an ultimate issue in the case
        and that he was prejudiced by their testimony. Again, we disagree.
                              1. Improper Expert Opinion
                Sotis first argues that Tu improperly testified that the re-
        breathers were closed circuit and required a license for export to
        Libya but “did not go through the analysis, or give the jury the facts
        upon which to make that determination themselves.” But Sotis did
        not object to this portion of Tu’s testimony. He objected only to
        repetitive questioning about the date on which Tu communicated
        his initial licensing determination to Wagner. And Sotis conceded
        from the beginning both that the rEvo III rebreathers required a
        license to ship to Libya and that he did not have a license. See, e.g.,
        Trial Tr. vol. 1, 29 (Doc. 175) (“[W]e are not disputing that the li-
        cense is required. We are not disputing that they didn’t have a li-
        cense.”).
               Because Sotis did not object to the substance of Tu’s testi-
        mony at trial, we review only for plain error. See Goulah v. Ford Mo-
        tor Co., 

, 1483 (11th Cir. 1997) (“An objection on one
        ground will not preserve an error for appeal on other grounds.”).
        That standard requires “(1) error, (2) that is plain, and (3) that has
        affected the defendant’s substantial rights.” United States v. Hesser,
USCA11 Case: 22-10256      Document: 38-1       Date Filed: 12/20/2023       Page: 21 of 32




        22-10256                Opinion of the Court                           21

        

 (11th Cir. 2015) (per curiam) (quotations omit-
        ted). Even then, we may exercise discretion to correct a forfeited
        error only if it “seriously affects the fairness, integrity or public rep-
        utation of judicial proceedings.” United States v. Moriarty, 

 (11th Cir. 2005) (per curiam) (alterations accepted) (quo-
        tations omitted).
               Here, there simply was no error. As a senior engineer at
        Commerce’s Bureau of Industry and Security, Tu testified that
        closed-circuit and semi-closed-circuit rebreathers were on the
        Commerce Control List and that he had concluded a license was
        required to export them to Libya based on that designation. He
        further testified that he informed Wagner of these conclusions.
        That testimony was not improper. “A district court may admit ex-
        pert testimony that ‘help[s] the trier of fact to understand the evi-
        dence or to determine a fact in issue.’” United States v. Duldulao, ___
        F.4th ___, 

, at *20 (11th Cir. Nov. 29, 2023) (al-
        teration in original) (quoting FED. R. EVID. 702(a)). And generally,
        “[a]n opinion is not objectionable just because it embraces an ulti-
        mate issue.” 

 (alteration in original) (quoting FED. R. EVID.
        704(a)).
               In a criminal case, however, “an expert witness must not
        state an opinion about whether the defendant did or did not have
        a mental state or condition that constitutes an element of the crime
        charged or of a defense. Those matters are for the trier of fact
        alone.” FED. R. EVID. 704(b). Thus, although “Rule 704 bars a wit-
        ness from giving legal opinions (e.g., ‘the defendant broke the law’)
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023      Page: 22 of 32




        22                      Opinion of the Court                  22-10256

        and from discussing culpable mental states (e.g., ‘and he did it
        knowingly’)[,] [a]n expert witness can give his opinion about an ul-
        timate issue so long as he does not tell the jury what result to
        reach.” Duldulao, ___ F.4th ___, 

, at *20.
               Tu’s testimony concerned his determination that the Com-
        merce Control List and Commerce Country Chart required a li-
        cense to ship closed-circuit and semi-closed-circuit rebreathers to
        Libya. He never opined on Sotis’s mental state or the ultimate legal
        issue of whether the rEvo III rebreathers were closed- or semi-
        closed circuit. There was no reason to do so because (1) Tu never
        interacted with anyone at Add Helium and had nothing to say
        about Sotis’s mental state, and (2) Sotis conceded in his opening
        statement that rEvo III rebreathers were either closed- or semi-
        closed circuit and thus required an export license. Because Tu did
        not “tell the jury what result to reach,” the district court did not err
        in permitting his testimony. Duldulao, ___ F.4th ___, 

, at *20.
                                2. Improper Lay Opinion
                Sotis next argues that Wagner improperly opined on Sotis’s
        mental state when he testified that he had never seen a case with
        “this level of willfulness.” When the government asked Wagner to
        compare Sotis’s willfulness with his experience in other cases, Sotis
        objected to the government asking “[a]bout other cases.” The dis-
        trict court instructed the government to rephrase the question, and
        eventually overruled Sotis’s objection because Sotis “opened the
        door” on cross examination by asking Wagner whether he could
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 23 of 32




        22-10256               Opinion of the Court                         23

        have charged Voissem and Sotis with civil penalties instead of crim-
        inal penalties. The court later took up the matter with counsel after
        the jury had been excused for the day. The court told counsel that
        she had “expected the objection to be to the word willfulness, but
        there was no objection to that.” The court ultimately allowed the
        question and answer to stand without further instruction to the
        jury. Thus, although Sotis objected to Wagner’s testimony at trial,
        he did so on different grounds from those now raised on appeal, so
        we review for plain error. See Goulah, 118 F.3d at 1483.
               We conclude that Wagner’s opinion was improper but that
        allowing it was not plain error. Rule 701 restricts a lay witness to
        testimony rationally based on the witness’s perception, that is help-
        ful to determining a fact in issue, and that is not based on special-
        ized knowledge. FED. R. EVID. 701; see also United States v. Stahlman,
        

 (11th Cir. 2019). Wagner’s testimony that he
        had never seen so much willfulness was improper because it pur-
        ported to tell the jury about Sotis’s state of mind—something to
        which neither he nor any other witness could testify based on his
        rationally-based perception. Permitting his testimony was error.
                But there is no indication that this error “affect[ed] substan-
        tial rights” because the jury was presented with overwhelming evi-
        dence of willfulness. See United States v. Vallejo, 

        (11th Cir. 2002). The government presented testimony from mul-
        tiple witnesses that Commerce informed Sotis and Add Helium
        that the rebreathers could not leave the company’s warehouse until
        a licensing determination was made. Sotis then deliberately failed
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023     Page: 24 of 32




        24                     Opinion of the Court                 22-10256

        to inform the Zaghabs about the licensing requirements, arranged
        for the rebreathers to be shipped, and attempted to escape respon-
        sibility by not informing Wagner that he had disobeyed the agent’s
        instructions. Given this evidence, the question of Sotis’s willfulness
        was anything but “a close one.” Chapman v. California, 

 (1967). Thus, allowing Wagner to testify as to willfulness was
        not plain error.
                                      C. Sentencing
               Rounding out the issues on appeal, Sotis claims that his sen-
        tence was both procedurally and substantively unreasonable. He
        argues that the district court wrongly sentenced him using § 2M5.2
        of the Guidelines, resulting in an inflated base offense level, and
        that a disparity exists between his sentence and those of similarly
        situated defendants. We agree with Sotis that the district court
        erred in applying § 2M5.2 but conclude that any error was harm-
        less. And Sotis’s sentence was not substantively unreasonable.
                             1. Procedural Reasonableness
               Sotis begins by arguing that the district court “erred in its
        determination that [§] 2M5.2 was the proper section of the Guide-
        lines to determine a Base Level Offense.” He concedes that there
        are “three possible [guidelines] sections for these types of convic-
        tions”: § 2M5.1, § 2M5.2, and § 2M5.3, but argues that the rule of
        lenity should weigh in favor of applying § 2M5.1(a)(2) in the face of
        ambiguity.
              District courts employ a two-step process to determine the
        appropriate base offense level. First, the court determines the
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023     Page: 25 of 32




        22-10256               Opinion of the Court                        25

        guideline section that is “most appropriate for the offense conduct
        charged in the count of which the defendant was convicted.” Bel-
        fast, 

 (quoting U.S.S.G. § 1B1.2 cmt. n.1). Second,
        the court examines the defendant’s relevant conduct to determine
        the correct guideline range based on the guideline section. Id. “In
        reviewing the district court’s . . . [g]uidelines calculation, we re-
        view the findings of fact for clear error and the application of the
        Sentencing Guidelines to those facts de novo.” Id. at 823. Where, as
        here, “the legal question of whether the district court applied the
        correct guideline is ‘fact-bound,’ we review that legal determina-
        tion for clear error, because the district court has greater expertise
        at sentencing, and there is generally limited precedential value in
        the decision.” Id. Because Sotis clearly and repeatedly objected to
        the application of § 2M5.2 at sentencing, we review for clear error
        the district court’s conclusion that it was the most appropriate
        guideline.
               We begin with the guidelines that Sotis concedes may be ap-
        plicable:
              • Section 2M5.1 prescribes a base offense level of 14 for
                “Evasion of Export Controls; Financial Transactions
                with Countries Supporting International Terrorism.”
                § 2M5.1(a)(2). That increases to 26 if the defendant
                evaded national security controls or controls relating to
                nuclear, biological, or chemical weapons, or if the of-
                fense involved a financial transaction with a country sup-
                porting international terrorism. Id. § 2M5.1(a)(1).
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 26 of 32




        26                     Opinion of the Court                  22-10256

               • Section 2M5.2 prescribes a base offense level of 26 for the
                 “Exportation of Arms, Munitions, or Military Equipment
                 or Services Without Required Validated Export Li-
                 cense.” Id. § 2M5.2(a)(1). If the offense involved only
                 non-fully automated small arms and the number of
                 weapons did not exceed two, or the items constituted
                 less than 500 rounds of ammunition for non-fully auto-
                 matic small arms, the base offense level is reduced to 14.
                 Id. § 2M5.2(a)(2).
               • Finally, § 2M5.3 prescribes a base offense level of 26 for
                 “Providing Material Support or Resources to Designated
                 Foreign Terrorist Organizations or Specially Designated
                 Global Terrorists, or For a Terrorist Purpose.” Id.
                 § 2M5.3.
               No one contends, and for good reason, that either
        § 2M5.2(a)(2) or § 2M5.3 is the best fit for Sotis’s crimes. Accord-
        ingly, we limit our inquiry to whether it was clear error to apply
        § 2M5.2(a)(1) over § 2M5.1. The parties’ briefs engage in an ex-
        tended debate over whether § 2M5.2 applies only to items on the
        United States Munitions List and whether a dual use item with po-
        tential military applications counts as “military equipment.” We
        need not answer those nuanced questions here because, at least
        with respect to rebreathers like the rEvo IIIs at issue, the EAR itself
        provides a clear dividing line.
              Classification Number 8A002.q, the export control Sotis was
        charged with and convicted of violating, governs “[u]nderwater
USCA11 Case: 22-10256       Document: 38-1        Date Filed: 12/20/2023        Page: 27 of 32




        22-10256                 Opinion of the Court                             27

        swimming and diving equipment as follows[:] q.1. Closed circuit
        rebreathers; q.2. Semi-closed circuit rebreathers.” See 15 C.F.R.
        Pt. 774, Supp. No. 1, Cat. 8 (Commerce Control List). But that is
        not the only Classification Number discussing rebreathers. A note
        to 8A002.q directs readers to “see [Classification Number] 8A620.f”
        “[f]or equipment and devices ‘specially designed’ for military use.”
        Id. Classification Number 8A620.f in turn controls “[d]iving and un-
        derwater swimming apparatus specially designed or modified for mili-
        tary use, as follows: f.1. Self-contained diving rebreathers, closed or semi-
        closed circuit; f.2. Underwater swimming apparatus specially de-
        signed for use with the diving apparatus specified in subparagraph
        f.1.” Id. (emphases added). 8A620 refers to 8A002 twice. First in the
        “List of Items Controlled” section, and second as a “[s]ee also” note
        to 8A620.f. Id. The first of these references instructs that “[f]or con-
        trols on nonmilitary submersible vehicles, oceanographic and asso-
        ciated equipment, see [Classification Numbers] 8A001, 8A002, and
        8A992.” Id. (emphases added).
               The purpose of 8A620.f is to separately (and quite strictly)
        control the export of closed- or semi-closed-circuit rebreathers that
        are “specifically designed or modified for military use.” That con-
        trasts with 8A002, which in the EAR’s own words controls (far
        more loosely) the export of “nonmilitary submersible vehicles,
        oceanographic and associated equipment.” The narrower defini-
        tion in 8A620.f is a dead ringer for § 2M5.2’s use of the phrase “mil-
        itary equipment,” at least with respect to rebreathers. And the
        broader nonmilitary standard in 8A002.q naturally encompasses
        products like the rEvo III, which might still pose a threat to the
USCA11 Case: 22-10256     Document: 38-1      Date Filed: 12/20/2023    Page: 28 of 32




        28                     Opinion of the Court                22-10256

        United States’ security interests in the wrong hands despite not be-
        ing purpose-built or modified for military use.
                The government charged and convicted Sotis under
        8A002.q, the export control governing “nonmilitary” rebreathers.
        It had the option of attempting a prosecution under 8A620.f. That
        would have required proving an additional element, that the rEvo
        IIIs were “specifically designed or modified for military use.” It
        would have also situated a conviction squarely within the heart-
        land of § 2M5.2(a)(1). Presumably, and as Tu testified at trial, the
        government made this choice because it believed that the appro-
        priate Classification Number for a rEvo III rebreather was 8A002.q
        (and thus implicitly not 8A620.f). Like the EAR, the Guidelines con-
        template a distinction between equipment purpose-built or modi-
        fied for military use and other equipment that may still be subject
        to “national security [export] controls.” U.S.S.G. § 2M5.1(a)(1). In
        fact, the Sentencing Commission made exactly that distinction
        when it amended the Guidelines to index § 2M5.1 to IEEPA of-
        fenses. See United States Sentencing Guidelines Manual, supp. to
        app. C, amend. 777 (Nov. 2013) (“Not all offenses under [the
        IEEPA] involve munitions, cultural resources, or wildlife, so a ref-
        erence to an additional guideline is warranted. For example, [an
        IEEPA] offense may be based on the export of ordinary commercial
        goods in violation of economic sanctions or on the export of ‘dual-
        use’ goods (i.e., goods that have both commercial and military ap-
        plications). For such cases, the additional reference to § 2M5.1 pro-
        motes clarity and consistency in guideline application, and the pen-
        alty structure of § 2M5.1 provides appropriate distinctions between
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 29 of 32




        22-10256               Opinion of the Court                         29

        offenses that violate national security controls and offenses that do
        not.”).
               Nevertheless, we conclude that any potential error in select-
        ing § 2M5.2(a)(1) was harmless because § 2M5.1(a)(1) would have
        resulted in an identical guidelines range. Section 2M5.1(a)(1) ap-
        plies “if . . . national security controls . . . were evaded.”
        § 2M5.1(a)(1). The EAR, as reauthorized by the President under the
        IEEPA, is clearly a system of “national security controls.” See 

 (explaining that the EAR is “intended to serve the
        national security, foreign policy, nonproliferation of weapons of
        mass destruction, and other interests of the United States”); see also
        United States v. Elashyi, 

, 508–09 (5th Cir. 2008) (holding
        that export controls under the IEEPA are “national security con-
        trols” for purposes of § 2M5.1(a)(1)); United States v. McKeeve, 

 (1st Cir. 1997) (same); United States v. Shetterly, 

 (7th Cir. 1992) (same under the EAA). The base offense level
        under § 2M5.1(a)(1) is 26, the same as under § 2M5.2(a)(1). And alt-
        hough the district court departed downward five levels under Ap-
        plication Note 2 to § 2M5.2 to reach a final offense level of 21 before
        enhancements, an identical note would have contemplated an
        identical departure under § 2M5.1. See U.S.S.G. § 2M5.1 cmt. n.2.
        Thus, there is no “reasonable probability” that Sotis’s sentence
        would have changed. See Molina-Martinez v. United States, 

, 200 (2016) (explaining that although a defendant will com-
        monly be able to show prejudice when a “district court mistakenly
        deemed applicable an incorrect, higher [g]uidelines range,” “[t]here
        may be instances when, despite application of an erroneous
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023     Page: 30 of 32




        30                     Opinion of the Court                  22-10256

        [g]uidelines range, a reasonable probability of prejudice does not
        exist”).
                             2. Substantive Reasonableness
               Finally, Sotis argues that the following six cases show that
        his sentence is disparate from others similarly situated: United States
        v. Vasquez, 

 (11th Cir. 2018) (per curiam); United
        States v. Francois, 

 (11th Cir. 2016) (per curiam);
        United States v. Piquet, 

 (11th Cir. 2010) (per curiam);
        United States v. Banki, 

 (2d Cir. 2012); United States v.
        Amirnazmi, 

 (3d Cir. 2011); and United States v. Reyes,
        

 (7th Cir. 2001). Because he raised this argument be-
        low, we review under a “deferential abuse of discretion standard.”
        United States v. Early, 

 (11th Cir. 2012). We will
        vacate Sotis’s sentence “only if we are left with the definite and firm
        conviction that the district court committed a clear error of judg-
        ment in weighing the § 3553(a) factors by arriving at a sentence that
        lies outside the range of reasonable sentences dictated by the facts
        of the case.” Id. (quotations omitted).
                Although a district court must “avoid unwarranted sentence
        disparities” among similarly situated defendants, 

(a)(6), “[a] well-founded claim of disparity . . . assumes that
        apples are being compared to apples,” Docampo, 

        (quoting United States v. Mateo-Espejo, 

 (1st Cir.
        2005)). Sotis offered each decision he presents on appeal to the dis-
        trict court to argue that his sentence was disparate from similarly
        situated defendants. The district court rejected that argument
USCA11 Case: 22-10256      Document: 38-1      Date Filed: 12/20/2023      Page: 31 of 32




        22-10256                Opinion of the Court                         31

        because the defendants in those cases were not similarly situated to
        Sotis. Unlike Sotis, several of the cited defendants either pleaded
        guilty, see Francois, 661 F. App’x at 588–89; Vasquez, 745 F. App’x at
        323; received a more severe sentence, see Piquet, 372 Fed. App’x at
        47 (60 months); or received a sentence under an older version of
        the Guidelines, see Reyes, 

. In Banki, the defendant
        received a 30-month prison term for operating an illegal money-
        transmitting business that served Iran. 685 F.3d at 102–05. While a
        serious crime, that is a far cry from exporting rebreathers to Libya
        after being ordered not to by a federal agent. The defendant in
        Banki was also found guilty only as an aider and abettor as to two
        of the export control counts. Id. at 105. And although the defend-
        ant in Amirnazmi received a 48-month prison term, 

,
        the nine-month delta between that sentence and Sotis’s is reasona-
        ble given the especially culpable nature of Sotis’s conduct, includ-
        ing threatening to kill Robotka and deceiving both innocent third
        parties and a federal agent.
               Put differently, the district court rejected Sotis’s disparity ar-
        guments because they were attempting to compare apples to or-
        anges. We agree with both the district court’s analysis and its con-
        clusion—the cases Sotis cites do not involve similarly situated de-
        fendants. Thus, the district court did not abuse its discretion in con-
        cluding that no sentencing disparity would result from imposing a
        sentence of 57 months. Sotis’s sentence is not substantively unrea-
        sonable.
USCA11 Case: 22-10256   Document: 38-1    Date Filed: 12/20/2023   Page: 32 of 32




        32                  Opinion of the Court              22-10256

                               IV. CONCLUSION
              Accordingly, we AFFIRM Sotis’s conviction and sentence.