Order Relating to Afshin (“Sean”) Naghibi, 61949-61951 [2013-24402]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 78, Number 195 (Tuesday, October 8, 2013)]
[Notices]
[Pages 61949-61951]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24402]



========================================================================
Notices
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains documents other than rules 
or proposed rules that are applicable to the public. Notices of hearings 
and investigations, committee meetings, agency decisions and rulings, 
delegations of authority, filing of petitions and applications and agency 
statements of organization and functions are examples of documents 
appearing in this section.

========================================================================


Federal Register / Vol. 78, No. 195 / Tuesday, October 8, 2013 / 
Notices

[[Page 61949]]



DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Order Relating to Afshin (``Sean'') Naghibi

    In the Matter of:

Afshin (``Sean'') Naghibi, 9426 Blessing Drive, Pleasanton, CA 
94588, Respondent.

    The Bureau of Industry and Security, U.S. Department of Commerce 
(``BIS''), has notified Afshin (``Sean'') Naghibi of Pleasanton, 
California (``Naghibi''), of its intention to initiate an 
administrative proceeding against Naghibi pursuant to Section 766.3 of 
the Export Administration Regulations (the ``Regulations''),\1\ and 
Section 13(c) of the Export Administration Act of 1979, as amended (the 
``Act''),\2\ through the issuance of a Proposed Charging Letter to 
Naghibi that alleges that Naghibi committed seventeen violations of the 
Regulations. Specifically, the charges are:
---------------------------------------------------------------------------

    \1\ The Regulations are currently codified in the Code of 
Federal Regulations at 15 CFR Parts 730-774 (2013). The violations 
alleged occurred in 2008-2010. The Regulations governing the 
violations at issue are found in the 2008-2010 versions of the Code 
of Federal Regulations, 15 CFR Parts 730-774 (2008-2010). The 2013 
Regulations govern the procedural aspects of this case.
    \2\ 50 U.S.C. app. Sec. Sec.  2401-2420 (2000). Since August 21, 
2001, the Act has been in lapse and the President, through Executive 
Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which 
has been extended by successive Presidential Notices, the most 
recent being that of August 8, 2013 (78 FR 49107 (Aug. 12, 2013)), 
has continued the Regulations in effect under the International 
Emergency Economic Powers Act (50 U.S.C. 1701, et seq.) (2006 & 
Supp. IV 2010).
---------------------------------------------------------------------------

Charge 1 15 CFR 764.2(d)--Conspiracy

    Beginning at least in November 2008 and continuing through in or 
about April 2010, Naghibi conspired and acted in concert with 
others, known and unknown, to bring about an act that constitutes a 
violation of the Regulations. The purpose of the conspiracy was to 
bring about the export of ultrasound equipment and related 
accessories, items designated as EAR99 \3\ and valued at $1,468,950, 
by United Medical Instruments, Inc., a San Jose, California company, 
from the United States through Belgium, to Iran. The items were also 
subject to the Iranian Transaction Regulations (``ITR'') \4\ 
maintained by the Department of the Treasury's Office of Foreign 
Assets Control (``OFAC''). Pursuant to Section 560.204 of the ITR, 
an export to a third country intended for transshipment to Iran is a 
transaction that requires OFAC authorization. Pursuant to Section 
746.7 of the Regulations, no person may engage in the exportation of 
an item subject to both the Regulations and the ITR without 
authorization from OFAC. No OFAC authorization was sought or 
obtained for the transactions described herein.
---------------------------------------------------------------------------

    \3\ EAR99 is a designation for items subject to the Regulations 
but not listed on the Commerce Control List. 15 CFR 734.3(c) (2008-
2010).
    \4\ 31 CFR Part 560 (2008-2010).
---------------------------------------------------------------------------

    Specifically, in furtherance of the conspiracy, Naghibi, through 
UMI, for which Naghibi served as Chief Operational Officer and 
International Sales Manager, participated in a scheme to export 
medical equipment to Iran without a license. The object of this 
conspiracy remained the same, even though the conspirators changed 
their method of accomplishing this objective during the related U.S. 
Government investigation. In furtherance of the conspiracy, Naghibi 
and Taban Saar, an Iranian individual, asked Bart Coppers 
(``Coppers''), who is the owner and President of Belgian company 
BVBA Coppers (``BVBA'') and administrator and part owner of Belgian 
company Raytec SA (``Raytec''), to ship ultrasound units for UMI to 
Taban Saar in Iran for a small commission, according to statements 
made by Coppers during a Department of Commerce Post-Shipment 
Verification of Raytec. Coppers reported to the Department of 
Commerce that he met individuals representing UMI and Taban Saar at 
a conference in the United Arab Emirates, and that UMI and Taban 
Saar indicated at that time to Coppers that they had a problem 
selling directly from the United States to Iran.
    Between November 2008 and February 2009, in furtherance of the 
conspiracy, Asghar Naderpour a/k/a Nader Naderpour (``Naderpour''), 
an Iranian individual affiliated with Taban Saar, used a personal 
email account and sent purchase orders directly to Naghibi of UMI 
for medical equipment. To assist UMI in filling these orders, 
Naghibi arranged to transship the exports through BVBA in Belgium to 
Taban Saar in Iran. At times, UMI included in its order forms the 
note ``BVBA c/o Taban,'' which indicated that the shipment was going 
through the Belgian company BVBA for Iranian co-conspirator Taban 
Saar. Naghibi, through UMI, also attempted to conceal Taban Saar's 
address by only identifying the Iranian company's street address on 
shipping and invoice documents. On such documents, UMI did not 
include the country of ultimate destination, which was Iran. The 
street address, however, was the same one in Iran that was listed on 
Taban Saar's Web site. On the same invoices and shipping documents, 
UMI listed Taban Saar's Iranian phone number.
    On February 13, 2009, OFAC issued an administrative subpoena to 
UMI seeking documents and information related to certain funds 
transfers, dated between January 3, 2007 and June 30, 2008, that 
appeared to be in violation of the ITR. Despite the OFAC subpoena, 
from February 2009 until April 2009, for approximately two and a 
half months, Naghibi, on behalf of UMI, continued to take orders 
directly from Naderpour from Naderpour's personal email account, and 
BVBA continued to transship the ordered items through Belgium to 
Iran once it received them from UMI. During this period, however, 
UMI again took steps to attempt to conceal the fact that it knew the 
exports were intended for Iran. In furtherance of the scheme, in an 
email dated March 13, 2009, the Iranian party Naderpour told 
Coppers, ``UMI requested me to ask you to send an email to them with 
the following text. `The coppers bvba [sic] sell all ultrasound 
machines to the belgium [sic] market which order to UMI company in 
the USA.'' (Emphasis in original.) With this email, Taban Saar, at 
the direction of UMI and Naghibi, attempted to create a written 
record suggesting that UMI was unaware that the orders actually were 
intended for Iran. Furthermore, as the International Sales Manager, 
Naghibi knew or had reason to know that transshipments to Iran were 
prohibited because, inter alia, UMI began including a specific 
notice of the prohibition on its shipping and invoice documents 
beginning in February 2009. Specifically, on its invoices, UMI 
included a statement to its customers that the shipped items were 
intended for the ``ship to'' country and that, ``[d]iversion 
contrary to US law prohibited. US law currently prohibits sale of 
products without appropriate export license to the following 
countries: Iran, Lybia [sic], Syria, N. Korea, Cuba and Sudan.''
    Additionally, in furtherance of the conspiracy, from August 2009 
to April 2010, the conspirators changed the structure of the scheme 
by using Raytec to place orders with UMI rather than BVBA to further 
conceal the fact that Naghibi and UMI knew that the items were 
intended for Iran. Naghibi no longer took orders directly from Taban 
Saar from Naderpour's personal email account. Instead, Naghibi took 
steps to conceal the business relationship between Taban Saar and 
UMI by having Taban Saar use Coppers of BVBA and Raytec to place 
orders with and make payments to UMI on behalf of Taban Saar. 
Specifically, Iranian purchaser Taban Saar would provide order 
requests to Coppers in his capacity with BVBA or

[[Page 61950]]

Raytec, and the Belgian companies would then issue purchase orders 
to UMI on Taban Saar's behalf. At times, Taban Saar used the same 
arrangement to pay UMI, and would send payment to BVBA or Raytec, 
which then transferred Taban Saar's funds to UMI. To further conceal 
the fact that it knew the items were intended for Iran, UMI and 
Naghibi also had both BVBA and Raytec sign a ``Customer Assurance 
Letter'' that stated that the Belgian companies understood that: 1) 
``[a]ll products delivered . . . by United Medical Instruments (UMI) 
are for distribution exclusively in Belgium;'' 2) prior to any 
reexport, the customer will notify UMI and assure that the company 
``will abide by the Export Administration Regulations as issued by 
the United States Government, Bureau of Industry and Security;'' and 
3) ``[s]pecific countries to which no shipment will be made are 
Cuba, Iran, North Korea, Sudan and Syria.''
    Despite efforts to conceal UMI's and Naghibi's involvement with 
the Iranian transactions, in furtherance of the conspiracy, 
Naderpour of Taban Saar and Naghibi of UMI continued to communicate 
regarding the purchase orders and payments. In an email dated 
December 17, 2009, Naderpour stated, ``UMI has not received the P/O 
yet,'' and asked Coppers to ``send again.'' In another email 
communication, Coppers referenced receiving a bank transfer from 
Naderpour for payment for items ordered by Taban Saar, via Belgium, 
from UMI. Because there was a discrepancy between the amount of the 
wire transfer and the amount listed on the purchase order, Coppers 
asked Naderpour to confirm the amount with Naghibi on Coppers's 
behalf, stating, ``Please, ask Mr. Sean [Naghibi of UMI] if 12000 
USD is oke [sic]. I can phone to the bank tomorrow and sent [sic] 
the wire transfer.'' In addition, in an email dated January 8, 2010, 
Coppers asked whether Naderpour had spoken to Sean Naghibi of UMI 
regarding ``our relation between Coppers BVBA and UMI.'' Naderpour 
responded in an email dated January 14, 2010, stating, ``I talked to 
Sean [Naghibi] [f]or coppers [sic] business with UMI'' and stated, 
``No problem Go ahead with him.'' These emails indicate that co-
conspirators Taban Saar and Naghibi, on behalf of UMI, coordinated 
to ensure that shipments and payments were handled pursuant to their 
instructions through the Belgian middle parties.
    At all times during the conspiracy, Naghibi knew or had reason 
to know that the transactions required a license. In 2003, UMI had 
applied for an OFAC license for medical equipment, but OFAC sent a 
letter stating that the application was deficient because UMI had 
not submitted, among other things, the full name and addresses of 
all parties involved in the transaction and their roles and a 
description of all items to be exported. The 2003 application to 
OFAC was signed by Naghibi, who identified himself as the Chief 
Operational Officer for UMI. Later, on July 26, 2007, BIS's Office 
of Export Enforcement conducted an outreach visit to UMI and spoke 
with Chief Financial Officer Naghibi and UMI's office manager 
regarding transactions with Iran. Although UMI's representatives 
claimed limited knowledge of the Regulations, they acknowledged 
familiarity with the Shipper's Export Declaration. In an email dated 
August 7, 2007, following the outreach visit, Naghibi stated to an 
OEE agent that he was aware that ``none of our shipments can 
eventually end up in a boycotted country.''

In so doing, Naghibi committed one violation of Section 764.2(d) of the 
Regulations.

Charges 2-17 15 CFR 764.2(h)--Evasion of the Regulations by Selling 
Medical Equipment to Iran Without a License

    On or about November 28, 2008, through in or about April 3, 
2010, Naghibi took actions to evade the Regulation. Specifically, 
Naghibi, as Chief Operational Officer and International Sales 
Manager of U.S. company UMI, exported without a license from the 
United States to Iran, through Belgium, ultrasound equipment and 
related accessories, items designated as EAR99 \5\ and valued at 
$1,468,950, by UMI, from the United States through Belgium, to Iran. 
The items were also subject to the Iranian Transaction Regulations 
(``ITR'') \6\ maintained by the Department of the Treasury's Office 
of Foreign Assets Control (``OFAC''). Pursuant to Section 560.204 of 
the ITR, an export to a third country intended for transshipment to 
Iran is a transaction that requires OFAC authorization. Pursuant to 
Section 746.7 of the Regulations, no person may engage in the 
exportation of an item subject to both the Regulations and the ITR 
without authorization from OFAC. No OFAC authorization was sought or 
obtained for the transaction described herein.
---------------------------------------------------------------------------

    \5\ EAR99 is a designation for items subject to the Regulations 
but not listed on the Commerce Control List. 15 CFR 734.3(c) (2008-
2010).
    \6\ 31 CFR Part 560 (2008-2010).
---------------------------------------------------------------------------

    Specifically, Naghibi, acting on behalf of UMI, took actions to 
evade the Regulations by asking Bart Coppers of Belgian companies 
BVBA and Raytec to ship ultrasound units for UMI to Iran for a small 
commission, according to statements made by Coppers during a 
Department of Commerce Post-Shipment Verification of Raytec. Coppers 
reported to the Department of Commerce that he met individuals 
representing UMI and Taban Saar at a conference in the United Arab 
Emirates, and that UMI and Taban Saar indicated at that time to 
Coppers that they had a problem selling directly from the United 
States to Iran.
    Using the arrangement agreed to with Coppers, between November 
2008 and February 2009, Naghibi, through UMI, sold medical equipment 
directly to Asghar Naderpour a/k/a Nader Naderpour (``Naderpour''), 
an Iranian affiliated with Taban Saar, which was exported through 
BVBA in Belgium, to Iran. Later, from August 2009 to April 2010, 
Naghibi, through UMI, continued to sell to Iran but changed the 
structure of the transaction to conceal the fact that UMI and 
Naghibi knew the ultimate destination of the items. Naghibi and UMI 
took steps to conceal the business relationship between Taban Saar 
and UMI by having Taban Saar use Coppers of BVBA and Raytec to place 
orders with and make payments to UMI. Specifically, Naghibi and UMI 
received order requests from Raytec and sold ultrasound equipment 
and accessories to Coppers in his capacity with BVBA or Raytec, 
which acted on behalf of Iranian purchaser Taban Saar. At times, 
Taban Saar used the same arrangement to pay UMI, and would send 
payment to BVBA or Raytec, which then transferred the funds provided 
by Taban Saar to UMI.

    In so doing, Naghibi committed sixteen violations of Section 
764.2(h) of the Regulations.

    Whereas, BIS and Naghibi have entered into a Settlement Agreement 
pursuant to Section 766.18(a) of the Regulations, whereby they agreed 
to settle this matter in accordance with the terms and conditions set 
forth therein; and
    Whereas, I have approved of the terms of such Settlement Agreement; 
It is therefore ordered:
    First, Naghibi shall be assessed a civil penalty in the amount of 
$800,000. Naghibi shall pay the U.S. Department of Commerce in six 
installments of: $7,000 not later than October 31, 2013; $6,000 not 
later than January 31, 2014; $6,000 not later than April 30, 2014; 
$6,000 not later than July 31, 2014; $6,000 not later than October 31, 
2014; and $6,000 not later than January 30, 2015. Payment shall be made 
in the manner specified in the attached instructions. If any of the six 
installment payments is not fully and timely made, any remaining 
scheduled installment payments and any suspended penalty may become due 
and owing immediately. Payment shall be made in the manner specified in 
the attached instructions. Payment of the remaining $763,000 shall be 
suspended for a period of two years from the date of the Order, and 
thereafter shall be waived, provided that during this two-year payment 
probationary period under the Order, Naghibi has committed no violation 
of the Act, or any regulation, order, license or authorization issued 
thereunder and has made full and timely payment of $37,000 as set forth 
above.
    Second, that, pursuant to the Debt Collection Act of 1982, as 
amended (31 U.S.C. 3701-3720E (2000)), the civil penalty owed under 
this Order accrues interest as more fully described in the attached 
Notice, and if payment is not made by the due dates specified herein, 
Naghibi will be assessed, in addition to the full amount of the civil 
penalty and interest, a penalty charge and an administrative charge, as 
more fully described in the attached Notice.

[[Page 61951]]

    Third, that the full and timely payment of the civil penalty in 
accordance with the payment schedule set forth above is hereby made a 
condition to the granting, restoration, or continuing validity of any 
export license, license exception, permission, or privilege granted, or 
to be granted, to Naghibi.
    Fourth, that for a period of six (6) years from the date of this 
Order, Naghibi, with a last known address of 9426 Blessing Drive, 
Pleasanton, California 94588, and when acting for or on his behalf, his 
successors, assigns, representatives, agents, or employees (hereinafter 
collectively referred to as ``Denied Person''), may not, directly or 
indirectly, participate in any way in any transaction involving any 
commodity, software or technology (hereinafter collectively referred to 
as ``item'') exported or to be exported from the United States that is 
subject to the Regulations, or in any other activity subject to the 
Regulations, including, but not limited to:
    A. Applying for, obtaining, or using any license, License 
Exception, or export control document;
    B. Carrying on negotiations concerning, or ordering, buying, 
receiving, using, selling, delivering, storing, disposing of, 
forwarding, transporting, financing, or otherwise servicing in any way, 
any transaction involving any item exported or to be exported from the 
United States that is subject to the Regulations, or in any other 
activity subject to the Regulations; or
    C. Benefitting in any way from any transaction involving any item 
exported or to be exported from the United States that is subject to 
the Regulations, or in any other activity subject to the Regulations.

Fifth, that no person may, directly or indirectly, do any of the 
following:

    A. Export or reexport to or on behalf of the Denied Person any item 
subject to the Regulations;
    B. Take any action that facilitates the acquisition or attempted 
acquisition by the Denied Person of the ownership, possession, or 
control of any item subject to the Regulations that has been or will be 
exported from the United States, including financing or other support 
activities related to a transaction whereby the Denied Person acquires 
or attempts to acquire such ownership, possession or control;
    C. Take any action to acquire from or to facilitate the acquisition 
or attempted acquisition from the Denied Person of any item subject to 
the Regulations that has been exported from the United States;
    D. Obtain from the Denied Person in the United States any item 
subject to the Regulations with knowledge or reason to know that the 
item will be, or is intended to be, exported from the United States; or
    E. Engage in any transaction to service any item subject to the 
Regulations that has been or will be exported from the United States 
and which is owned, possessed or controlled by the Denied Person, or 
service any item, of whatever origin, that is owned, possessed or 
controlled by the Denied Person if such service involves the use of any 
item subject to the Regulations that has been or will be exported from 
the United States. For purposes of this paragraph, servicing means 
installation, maintenance, repair, modification or testing.
    Sixth, that, after notice and opportunity for comment as provided 
in Section 766.23 of the Regulations, any person, firm, corporation, or 
business organization related to the Denied Person by affiliation, 
ownership, control, or position of responsibility in the conduct of 
trade or related services may also be made subject to the provisions of 
the Order.
    Seventh, Naghibi shall not take any action or make or permit to be 
made any public statement, directly or indirectly, denying the 
allegations in the Proposed Charging Letter or the Order. The foregoing 
does not affect Naghibi's testimonial obligations in any proceeding, 
nor does it affect its right to take legal or factual positions in 
civil litigation or other civil proceedings in which the U.S. 
Department of Commerce is not a party.
    Eighth, that the Proposed Charging Letter, the Settlement 
Agreement, and this Order shall be made available to the public.
    Ninth, that this Order shall be served on Naghibi, and shall be 
published in the Federal Register.
    This Order, which constitutes the final agency action in this 
matter, is effective immediately.

     Issued this 26th day of September, 2013.
David W. Mills,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2013-24402 Filed 10-7-13; 8:45 am]
BILLING CODE P