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Case 1:08-cr-20612-PAS

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-20612-CR-SEITZ/OSULLIVAN UNITED STATES OF AMERICA vs. HASSAN SAIED KESHARI ________________________________/ CORRECTED MOTION TO REOPEN PRE-TRIAL DETENTION HEARING PURSUANT TO 18 U.S.C. 3142(f) Defendant Hassan Saied Keshari moves pursuant to 18 U.S.C. 3142(f) to reopen the pretrial hearing in this case. In support, Mr. Keshari states: On June 26, 2008, following a hearing, the Court ordered Mr. Keshari detained on the ground that he posed a risk of flight. The Court reached this conclusion even though Mr. Keshari has been a United States citizen for many years and even though family and friends represented that they were prepared to post $4.5 million worth of property as security.1 The Courts determination was the result of its reliance on several assertions made by the government that went unchallenged by Mr. Kesharis then counsel. Having had an opportunity to further investigate the governments allegations, undersigned counsel requests the opportunity to revisit the matter of detention.
1

See Detention Order at 2 (June 26, 2008).

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The Bail Reform Act provides that a pretrial detention hearing may be reopened, before or after a determination by the judicial officer, at any time before trial 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 whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community. 18 U.S.C. 3142(f). Since the June hearing, the government has charged Mr. Keshari by indictment. The indictment, as well as undersigned counsels investigation, has brought to light additional information, described herein, that severely undermines the governments reasons for claiming that Mr. Keshari poses such a serious flight risk that no bond will suffice to reasonably assure his appearance. Background Hassan Saied Keshari emigrated to the United States from Iran at the age of 16 in 1977. After graduating from high school in New Jersey, he studied aeronautical engineering at Arizona State University until 1984. During his more than 30 years living in this country, Mr. Keshari has developed extensive ties to the United States. His wife, Taromi Shahrzad (Sheri Keshari), and her family have lived in the United States since she was an infant. Sheris parents, her brother, and her sister reside in Marin County, California. The Kesharis have two children, Sahba Keshari, who is 12 years old, and Sasha Keshari, who is 4 years old. Both children are natural-born United States citizens, having been born in California. 2

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The family lives in Novato, California, which is in Marin County just north of San Francisco. Sahba will begin seventh grade in the fall at San Jose Middle School, the local public school. The family belongs to the local YMCA where Sahba attends weekly swim class. Sheri Keshari has a serious illness which prevents her from working outside the home. Mr. Keshari is responsible for taking care of her and the two children, as well as his in-laws. The wild scenario that the government speculated would occurthat Mr. Keshari would abscond to Iran with his wife and two children2 is extremely unlikely given that neither Sheri nor the children have never known life outside the United States of America. It is also far-fetched to think Mr. Keshari would abandon his family in California when even the governments estimate of the sentence is only five years.3 The Keshari family has about $350,000 worth of equity in their home and an additional $120,000 in a townhouse purchased as an investment about four miles away. Before starting his own business in 1993, Mr. Keshari held various engineering jobs

See Transcript of Pretrial Detention Hearing (hereinafter Transcript) at 7 (June 26, 2008) (Even if we take away his passports and those of his family members, who also have Iranian passports as far as I know, but I am not sure about the kids, it is very easy to replace those Iranian passports.). See Transcript at 8 (Looking at the guidelines, once we go through all of the numbers of these transactions, a good 5 years in jail under the guidelines if we charge him with all of the transactions that we are seeing . . . .). As we explain below, Mr. Keshari is not likely to serve five years in prison, even if convicted at trial. 3
3

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throughout the country. Even if he were to be convicted and lose his business, Mr. Kesharis engineering skills make him readily employable.4 While two of Mr. Kesharis siblings as well as his parents reside in Iran, his sister, Sohelia Keshari, lives in Orange County, California, and is a permanent resident. She is a widow living with her four children. In addition, Mr. Keshari has two aunts and four uncles as well as numerous cousins living in California, Ohio, Tennessee, Texas, and Georgia. During the more than three decades that Mr. Keshari has lived in the United States, he has traveled to Iran only four times. His first trip was in 1998, when he returned to Iran for the first time in 22 years with his wife shortly after their marriage. In 2004, he took his family there for a nieces wedding. Two years later, he and his sister went together to see their parents. Last year, he and his family went to visit his wifes extended family. As there are no direct flights to Iran, each time he goes, Mr. Keshari must stop in Europe. As a result of his strong ties to the United States, Mr. Kesharis family and friends have offered to secure his appearance with their real property in Hawaii and California. Mr. Kesharis sisters brother-in-law has offered to use some of the equity in his business

Compare Transcript at 8 ([O]nce his business is shut down, because he is going to have a lot of trouble getting back into this business again, our point is there is nothing left for him here.). 4

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to pay a bond. Additionally, the entire family has offered to surrender all passports in their possession. Mr. Keshari has no criminal record. He works as a broker of commercial aircraft parts. The government is in possession of numerous records detailing Mr. Kesharis many sales of commercial aircraft parts in the United States. He maintains his own inventory at a warehouse, which the government searched. No parts for military aircraft were found at Mr. Kesharis warehouse. Governments Allegations Before the indictment was filed, the government made certain claims at the June detention hearing that went unchallenged. As a result, the Court determined that Mr. Keshari presented such a risk of flight that no conditions would reasonably assure his appearance.5 Specifically, the Court concluded that Mr. Keshari would flee to Iran and that the goods that he was providing to Iran and the Iranians, which may also be used in Iranian defense equipment, gives Iranian nationals, as well as perhaps the Iranian Government a reason to support him should he go to Iran.6 Now that the indictment has been filed, it is evident that this finding was based on the governments exaggerated claims. Moreover, undersigned counsels review of some of the evidence shows that the

No presumption of flight arises in this case. See 18 U.S.C. 3142(e) & (f)(1). Transcript at 18. 5

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governments claims are not supported by sufficient evidence to support detention. The hearing needs to be reopened so that the Court can reevaluate the risk of flight with the more complete picture now available. After entry of the detention order, Mr. Keshari was charged by indictment with a multi-object conspiracy, seven counts of violating executive orders establishing an embargo against Iran, and two counts of violating the Arms Export Control Act. These last two counts are predicated on shipments also charged as violations of the Iran embargo. At bottom, the acts forming the basis of all of these charges total seven shipments of parts, none of which is a weapon. Rather, the parts that were allegedly exported are common aircraft parts: fitting assemblies, switching assemblies, harness assemblies, accumulators, diaphragm seals, and gyros. The most important discrepancy the indictment reveals is the governments claim at the June hearing that [a]ll of the items have been confirmed as being listed on a United States Munitions List.7 In fact, most of the charges are simple violations of the embargo, which prohibits virtually all exports to Iran. Only two of the seven shipments are charged as violations of the Arms Export Control Act (as well as of the embargo). Those parts were

Transcript at 4. 6

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harness assemblies and accumulators. Neither harness assemblies nor accumulators are weapons.8 Other crucial, unsupported allegations made by the government at the June hearing related to Mr. Kesharis knowledge and intent. To prove a violation of the Iran embargo, the government must prove not only that Mr. Keshari caused such shipments but also that he knew the sellers whom he contacted lacked the requisite license. To prove the Arms Export Control Act violations, the government must prove that Mr. Keshari knew the parts were destined for military aircraft. The latter element is not as straightforward as it might appear. Unlike the schedules of controlled substances which actually list every controlled substance, the United States Munitions List describes categories of banned parts. The pertinent provision for this case states that it is illegal to export: Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraphs (a) through (e) of this category, excluding aircraft tires and propellers used with reciprocating engines.9 Sub-paragraph (a) of Category VIII describes the aircrafts that cannot be exported as follows:

An accumulator stores gas under pressure for powering brakes, landing gear, and other airplane systems. Wiring harnesses are used in virtually all aircraft (as well as automobiles) and are simply a group of insulated conductors bound together to protect them from vibrations, abrasions, and corrosion.
9

22 C.F.R. 121.1 (Category VIII(h)). 7

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Aircraft, including but not limited to helicopters, non-expansive balloons, drones, and lighter-than-air aircraft, which are specifically designed, modified, or equipped for military purposes. This includes but is not limited to the following military purposes: Gunnery, bombing, rocket or missile launching, electronic and other surveillance, reconnaissance, refueling, aerial mapping, military liaison, cargo carrying or dropping, personnel dropping, airborne warning and control, and military training.10 Thus, the government needs to prove, not only that the allegedly shipped parts were specifically designed or modified to be used on military aircraft, but also that Mr. Keshari knew that they were. Given that the charged parts are common to virtually all aircrafts (as well as many other machines), the government needs to show considerably more than it has thus far. One way the government attempted to establish Mr. Kesharis mens rea at the June hearing was to imply that he had no legitimate income. It represented that [a]s far as the investigation has deciphered so far, there is no indication of legitimate business going on at Mr. Kesharis business.11 The government later retreated from this claim12 because it is clear that Mr. Keshari has engaged in substantial legitimate business. The government searched Mr. Kesharis warehouse and found that it contained commercial and civil aircraft

10

22 C.F.R. 121.1 (Category VIII(a)). Transcript at 5.

11

Transcript at 6 (As far as we know there is also commercial and civilian aircraft parts dealings that he has done, but as far as the export, and obviously the exports that the agents are looking at, the military aircraft parts are all getting exported.). 8

12

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parts. None of the parts found at the warehouse were military parts. The government also seized records of the business which are evidence of the legitimate transactions involving commercial and civil aircraft parts in which Mr. Keshari has engaged over his 14 years in business. Another principal government claim was that email correspondence documented that all the charged transactions involved parts for military aircraft.13 In fact, the relevant emails show that, if Mr. Keshari in fact brokered military aircraft parts, he did so unwittingly. It is necessary to reopen the detention hearing so that the Court can review these emails, as undersigned counsel has now had the opportunity to do.14 They include such statements from Mr. Keshari as:

# I did not know that it was for f4. personally, i do not wish to do anything with
this type of aircraft.

Transcript at 4 (All of the sales that are in the complaint are documented by e-mail.). At the hearing, Mr. Kesharis then counsel stated that the hundreds of emails, once reviewed, would show that Mr. Keshari at no point had any criminal intent. Transcript at 11. No agent was examined on what the emails contained or what Mr. Keshari purportedly said after his arrest. As a result, the governments representations were imbued with much greater force than they would otherwise have had. Emails sent from Mr. Keshari to his codefendant not only fail to establish the necessary mens rea but in fact negate it. 9
14

13

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# [A]s for the part I asked you to buy for us, I did not know it was for military use
only. I do not wish to buy anything that has military applications only. Thanks for letting me know. The emails similarly refute the governments claim that Mr. Keshari knew that the shippers he contacted lacked the requisite licenses. Undersigned will present these emails to the Court at the hearing.15 The government also attempted to satisfy its burden with pure speculation, arguing that Mr. Keshari must have known the parts involved were military aircraft parts because he had been in the aircraft parts business for 7 years, but possibly longer than that.16 Putting aside the fact that this is rank speculation, the claim implies that a wiring harness or an accumulator for a military airplane looks completely different than one used on a commercial or civil airplane. The government has not substantiated (and in all likelihood cannot substantiate) that claim. It needs to establish Mr. Kesharis knowledge with proof rather than conjecture. The government further claimed that Mr. Keshari confessed, but no agent testified in support of this contention. No statement was provided to counsel or to the Court. In fact,

See 18 U.S.C. 3142(f) (providing that pretrial detainee shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise). [The defendants] are very familiar with these parts, and they are very familiar with the fact that these are military parts. Transcript at 4. 10
16

15

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Mr. Keshari did not confess to any of the charges against him. He gave an exculpatory statement upon arrest. Finally, the government claimed that Mr. Kesharis sentencing exposure was between five and twenty years. This claim is wrong. Mr. Keshari scores out to lower than five years, as other similar cases demonstrate. See, e.g., United States v. Reza Tabib, 8:06-Cr0025-DOC (sentenced to 24 months for exporting F-14 aircraft and missile parts to Iran; released on $225,000 appearance bond); United States v. Shahrazad Gholikhan, 05-60238-CrCohn (case involving exporting night vision goggles to Iran; plea vacated after dispute over whether guidelines range was 06 months or 3037 months; Judge Cohn sentenced defendant to 29 months and then vacated plea and scheduled case for trial). There are other similar cases demonstrating that the governments claims regarding Mr. Kesharis sentencing exposure were exaggerated at the bail hearing. Conclusion Mr. Keshari, a U.S. citizen with no prior criminal history, should not be detained. His wife and two young children need him. The Courts decision was predicated on a number of overstated claims, regarding both the strength of the governments evidence and Mr. Kesharis background.

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WHEREFORE

the Court should reopen the pretrial detention hearing pursuant to 18

U.S.C. 3142(f) so that its decision to incarcerate Mr. Keshari pending trial can be revisited in light of the newly filed indictment and newly discovered evidence.

Respectfully submitted,

____________________________ David Oscar Markus Fla. Bar No. 119318 Robin Kaplan Fla. Bar. No. 773751 DAVID OSCAR MARKUS, PLLC Alfred I. duPont Building 169 East Flagler Street, Suite 1200 Miami, Florida 33131 Telephone: 305-379-6667 Facsimile: 305-379-6668 www.markuslaw.com

CERTIFICATE OF SERVICE A copy of the foregoing was served through the electronic filing system on July 15, 2008, on AUSA Melissa Damian.

___________________________ David Oscar Markus 12