Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ

UNITED STATES OF AMERICA vs. HASSAN SAIED KESHARI, Defendant. ________________________________/ GOVERNMENTS RESPONSE TO DEFENDANTS MOTION TO REOPEN PRE-TRIAL DETENTION HEARING COMES NOW, the United States of America, by and through the undersigned Assistant United States Attorney, and files this Response to Defendants Motion to Reopen Pretrial Detention Hearing (D.E. 27), filed July 14, 2008, and states as follows: Defendant has not demonstrated that any information exists that was not known to the defendant at the time of the pretrial detention hearing which has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of the defendant as required. Defendant is not, therefore, entitled to have the pretrial detention hearing reopened. As Defendant is aware, and the Bail Reform Act makes clear, the pretrial detention hearing may be reopened if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of such person as required... 18 U.S.C. 3142(f) (emphasis added). A review of Defendants motion confirms that the only things that have changed since the pretrial detention hearing on June 26, 2008, are that a federal grand jury returned an indictment against the Defendant and that Defendant retained new defense

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 2 of 10

counsel. Neither of these issues has a bearing on the issue of whether Defendant is a risk of flight at least not toward a finding that he is any less of a risk of flight than he was at the time of the original pretrial detention hearing. Rather, Defendants Motion lays out information which was known to Defendant at the time of his pretrial detention hearing, the majority of which was actually discussed at the hearing. Defendants Motion, therefore, does nothing more than re-hash what was already before this Court - with a few additions, discussed below, which do not bear on whether Defendant is a risk of flight. The June 26, 2008, Detention Hearing On June 26, 2008, this Court held a detention hearing. Defendant was present at that hearing and was represented by privately retained counsel. At the hearing, the Government moved for pretrial detention on the basis that the Defendant presents a risk of flight. Undersigned counsel for the Government proceeded, by way of proffer, to summarize the charges against the Defendant and the facts underlying those charges, as well as the facts underlying each of the factors the Court must consider in determining whether the defendant presents a risk of flight. It is settled in the Eleventh Circuit that the Government, as well as the defense, may proceed by proffering evidence subject to the discretion of the judicial officer presiding at the detention hearing. United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987). Defense counsel then also proceeded to proffer evidence in support of the Defendants claim that he is a legitimate businessman who was an unknowing participant in the illegal acts set forth by the Government. Defense counsel also challenged the Governments proffered evidence and set forth his argument as to each of the factors to be considered by the Court regarding whether the Defendant presents a risk of flight. Defense counsel chose to read a letter from the Defendants

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 3 of 10

wife, but he did not seek to present further evidence or witnesses, nor did he request an opportunity to cross examine a law enforcement agent involved in the case.1 At the close of counsels arguments, the Court held that the Defendant presents a risk of flight, stating that the weight of the evidence against the Defendant is overwhelming that the Defendant and his co-defendant, Traian Bujduveanu, participated in a scheme to export military goods to Iran. In support of these findings, the Court explained that it had considered that the Defendants admitted during post-arrest interviews that they knew these goods were going to Iran and that circumstantial evidence, including emails and general knowledge based on recent publicity about Iran and the use of F-14s by the Iranian military, also lead to the conclusion that these Defendants knew the goods were going to Iran. See Pretrial Detention Hearing Transcript at pp. 4647. The Court also found by a preponderance of the evidence2 that no condition or combination of conditions will reasonably assure the appearance of this Defendant as required at future proceedings. In support of this finding, the Court explained that it had considered that the Defendant maintains both U.S. and Iranian passports, that he was born in Iran, and that he has very close ties and family in Iran. The Court also considered that the Defendant has traveled frequently to Iran, including two trips to Iran in the last 6 months. The Court further considered that the nature of the goods the Defendant has been providing to Iran and the Iranians, which are goods that may be used in Iranian defense equipment, gives Iranian nationals, as well as perhaps the Iranian Government,
1

Special Agent Blake Schnitker, Defense Criminal Investigative Service, was present for the hearing but was not called by either party or the Court to testify.
2

The need only find by a preponderance of the evidence that a defendant presents a risk of flight. See US v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990);US v. King, 849 F.2d 485, 489 (11th Cir. 1988).

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 4 of 10

a reason to support the Defendant should he return to Iran. The Court went on to state that it considered that the Defendants has close business ties in Iran and that he had been doing business with his wifes relatives in Iran. Finally, the Court explained that although the Defendant had come forward with substantial assets to be posted by friends and relatives to assure his appearance, the Court did not believe that it was sufficient in light of the nature of the offense and the fact that the Defendant is facing a substantial prison sentence. See Pretrial Detention Hearing Transcript at pp. 47-48. The Defendant has now filed a Motion to Reopen the Detention Hearing on the grounds, generally, that the Defendant believes that the recently returned Indictment against the Defendant, as well as several emails presumably provided by the Defendant to the Defendants new counsel, indicate that the Government exaggerated claims about the evidence at the detention hearing. Defendants claims are baseless and premature and reflect a fundamental misunderstanding of the charges against the Defendant in this case. Moreover, Defendants claims certainly do not demonstrate that there is information that was not previously known to the Defendant which bears on the issue of risk of flight and which warrants a reopening of the hearing. A review of Defendants Motion makes this clear. Information About Defendants Personal Background Was All Previously Known. Specifically, on pages 2 through the top of page 5 of his Motion, Defendant reviews his personal background, as well as that of his immediate family. This background includes a discussion about his family members, both in the United States and in Iran, his travel to Iran, and, briefly, the nature of his business. Of course, this is all information known to the Defendant at the time of his original hearing, as it is the Defendants personal information. And, this is all information laid out by Defendants previous counsel during the detention hearing. Certainly, none 4

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 5 of 10

of this information warrants a reopening of the hearing as it was known to the Defendant at the time of the original hearing. Defendants Arguments That the Governments Claims Were Exaggerated Are Baseless. Next, Defendant asserts a series of arguments in support of his claim that the Government exaggerated claims about the Defendant and that he does not present a risk of flight. Nearly all of these arguments were presented at the original hearing, and those that were not are meritless. First, on pages 5 and 6 of his Motion, Defendant argues that, based on his review of the charges in the Indictment, the Governments assertions during the pretrial detention hearing were exaggerated. This claim is first based on the fact that, as the Indictment reveals, none of the aircraft parts which serves as the basis for the charges in the Indictment is a weapon. This argument reflects a fundamental misunderstanding of the charges in this case. The Government did not and does not claim that Defendant was engaged in the export of weapons. Weapons are not at issue in this case. Rather, Defendant is charged with exporting aircraft parts to Iran. Many of those aircraft parts are designed exclusively for military use - meaning, for use on military aircraft. As such, many of those aircraft parts are designated as defense articles on the United States Munitions List, and their export, whether to Iran or to anywhere else outside the United States, is prohibited without proper licenses (which Defendant did not have). Defendant also claims that the parts at issue are common aircraft parts. See Motion at p. 6. Again, while some of the parts discussed in the affidavit supporting the Complaint and in the Indictment are commercial aircraft parts, 6 of the 7 parts charged in the Indictment are not. Rather, they are parts designed and manufactured exclusively for use on military aircraft. Other aircraft may use harness assemblies and accumulators, but they do not use these harness assemblies and accumulators. There is no other use for these 6 parts. This is confirmed by the fact that all 6 of 5

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 6 of 10

these items have been designated as United States Munitions List items. Defendant has no basis for claiming otherwise, other than his reading of the Indictment, in which the United States only charged Arms Export Control Act violations with respect to 2 of the parts. Contrary to Defendants assertion, this does not reflect a change from the Governments statements at the hearing. Rather, counsel for the Government was abiding by a Department of Justice policy which dictates that Arms Export Control Act charges based on exports of Munitions List items should only be brought after final, formal determinations have been returned from the Department of State. Literally, the Government is waiting on actual certificates with Department of State seals on them before bringing those charges. Even without those formal certificates, the investigating agents have confirmed that the remaining items are Munitions List items designed and manufactured exclusively for use on military aircraft. As undersigned counsel has explained to Defendants counsel, the United States anticipates that when the formal certificates regarding the remaining items have been returned, the United States will likely supersede the Indictment to include charges based on those designations. To the extent that the Defendant seeks to challenge the nature of these items, that is really an issue more appropriate for experts at trial. See, e.g., U.S. v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986); U.S. v. Martir, 782 F.2d 1141, 1145 (2nd Cir. 1986) (Congress did not intend detention hearings to resemble mini-trials). This leads to Defendants next assertion: In fact, most of the charges are simple violations of the embargo. See Motion at p.6. Again, this statement demonstrates a true misunderstanding of the nature of the charges in the Indictment in this case. These are not simple violations of the embargo of the Republic of Iran. Defendant is charged with exporting military aircraft parts which are known to be used and needed by the military of Iran - a known State Sponsor of Terrorism. These are serious charges based on acts with national security implications. 6

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 7 of 10

Next, Defendant argues that the Government made unsupported allegations at the pretrial detention hearing related to Mr. Kesharis knowledge and intent. Contrary to Defendants assertion, at this stage in the proceedings, the Government does not need to show considerably more than it has thus far. See Motion at p.8. As noted above, the pretrial detention hearing is not designed to be a mini-trial during which the Government need prove beyond a reasonable doubt all of the elements of the charges against the Defendant. Rather, the weight of the evidence is merely one of the factors to be considered by the Court in determining whether the Government has demonstrated by a preponderance of the evidence that Defendant is a risk of flight. Defendants claim that the Governments assertions in support of the mens rea element of the offenses were unsupported is baseless. As the undersigned counsel explained at the pretrial detention hearing, the evidence against this Defendant is substantial as to all elements of the charged offenses. That evidence includes more than 8 boxes of documents seized from the Defendants office as well as hundreds (if not thousands) of emails which detail these and other illegal transactions with Iranian buyers. Moreover, as set forth during the pretrial detention hearing, the Defendant admitted during a postarrest, post-Miranda interview that he knows the export laws at issue in this case, that he knows he was exporting military parts, and that he knows that the parts were going to Iran. Frankly, Defendants claims that the Governments allegations at the hearing were unsupported are a bit premature in light of the fact that defense counsel has not yet seen the discovery in this case. In his Motion, as he did at the previous hearing, Defendant claims that a reading of his email communications and the documents in his office will clarify that he was engaged in legitimate business transactions. Again, information in Defendants email communications and in his office is information that was known to the Defendant at the time of the original detention hearing and would not warrant a reopening of the hearing. Not only was the information known by the 7

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 8 of 10

Defendant at the time of the hearing, but the information was discussed at the hearing. (See Transcript at. Pp. 27-28). As explained during the pretrial detention hearing, it is the Governments position that the reading of Defendants emails, that the contents of his computers, and that the documents found in Defendants business all confirm that Defendant knowingly engaged in illegal exports of aircraft parts (military and commercial) to Iran. Defense counsel indicates that he has read three emails which exculpate the Defendant. The Government has read those, as well as hundreds of others that inculpate him. Defendant also claims, as he did at the hearing (see Transcript at p. 27), that the Governments assertion that the Defendant engaged almost exclusively in illegal exports of aircraft parts was unsupported. The Government conceded at the hearing that it is not fully aware of the amount of legitimate business engaged in by the Defendant. However, investigating agents reviewing evidence within computers seized from the Defendants place of business have found, up to this point, that less than roughly 5% of the evidence on those computers, including evidence of email communications and computer documents, reflect legal domestic sales of aircraft parts. The fact that the Defendant had commercial aircraft parts in his inventory does not serve to prove that he was not engaged in illegal business. As explained at the hearing, this case is not only about military parts, because the export of even non-military aircraft parts is a violation of the Iran Embargo. Finally, Defendant argues that the Government exaggerated the potential sentence faced by the Defendant. Without going into further discussion of other factors and the potential for future additional charges in this case, the applicable guideline level for violations of the Arms Export Control Act (22 U.S.C. 2778), based on the export of defense articles without a license, is a base offense level of 26 (U.S.S.G. 2M5.2(a)(1)), which carries a sentence of 63-78 months. The 8

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 9 of 10

Government stands by its position that 5 to 6 years in prison is a substantial sentence for an individual like this Defendant. CONCLUSION In sum, the Defendant has not demonstrated that there exists new information that was not known to him at the time of the original detention hearing that has a material bearing on the issue of whether the Defendant is a risk of flight. As this Court found at the original hearing, all of the factors considered by the Court pursuant to 18 U.S.C. 3142(g) lead to the conclusion that there are no conditions or combinations that will reasonably assure that the Defendant will appear as needed. Therefore, the Defendants Motion to Reopen the Pre-Trial Detention Hearing should be denied, and the Defendant should remain detained pending trial in this case.

Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY

By:

S/ Melissa Damian Melissa Damian Assistant United States Attorney Florida Bar No. 0068063 99 Northeast 4th Street Miami, Florida 33132-2111 Tel: (305) 961-9018 Fax: (305) 536-4675

Case 1:08-cr-20612-PAS

Document 37

Entered on FLSD Docket 07/18/2008

Page 10 of 10

CERTIFICATE OF SERVICE I hereby certify that on July 18, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to David O. Markus, counsel for Defendant Hassan Saied Keshari.

S/Melissa Damian Melissa Damian Assistant United States Attorney

10