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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-20612-CR-SEITZ

UNITED STATES OF AMERICA

vs.

HASSAN SAIED KESHARI,

Defendant.

________________________________/

GOVERNMENT’S RESPONSE TO DEFENDANT’S

MOTION TO REVOKE PRETRIAL DETENTION ORDER

AND, ALTERNATIVELY, APPEAL OF ORDERDENYING 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 Defendant’s Motion to Revoke Pretrial Detention

Order, and, Alternatively, Appeal of Order Denying Motion to Reopen Pretrial Detention Hearing

(D.E. 44), filed July 29, 2008, and states as follows:

The Magistrate Judge’s findings are correct and clearly supported by the record. Defendant’s

allegations to the contrary are wholly without merit and have no support in the facts. The Motion

should, therefore, be denied without further hearing.

Like his Motion to Reopen, Defendant’s Motion is based almost entirely on the allegation

that the Government’s claims at the pretrial detention hearing were exaggerated. There is no basis

in truth for such unsupported allegations. As the Magistrate Judge correctly held in the Order

Denying Defendant’s Motion to Reopen the Hearing, Defendant’s allegation that the Government’s

claims were exaggerated is without merit. Moreover, the great majority of Defendant’s allegations

have little if any relevance to the real issue now before this Court, which is whether the Defendant

presents a flight risk.

Case 1:08-cr-20612-PAS Document 50 Entered on FLSD Docket 08/08/2008 Page 1 of 26

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As the record in this case and Defendant’s personal background make clear, Defendant

Keshari presents a true risk of flight. The United States demonstrated at the pretrial detention

hearing by a preponderance of the evidence that no condition or combination or conditions can

reasonably assure that this Defendant will appear for future court appearances as directed. The

United States remains very concerned that should Defendant Keshari be released from custody, he

will flee to Iran, and there are no methods by which the United States will be able to apprehend him

again.

The Magistrate’s Findings Were Not Clearly Erroneous and Are Entitled to Deference.

A person who has been ordered detained by a magistrate judge may file a motion for

revocation or amendment of the order with the court having original jurisdiction over the offense.

18 U.S.C. § 3145(b). The Eleventh Circuit has held that when a defendant files a motion to revoke

a magistrate judge’s pretrial detention order, the district court should “undertake an independent

review of the case.” United States v. King, 849 F.2d 485, 489 (11th Cir. 1988); United States v.

Gaviria, 828 F.2d 667, 670 (11th Cir. 1987). However, in so holding, the court rejected the notion

that such “independent review” requires the district court judge to conduct a de novo hearing when

reviewing the magistrate judge’s detention order. Rather, the court explained, “de novo review

[only] requires the court to exercise independent consideration of all facts properly before it...”

Gaviria, 828 F.2d at 670 (citing United States v. Hurtado, 779 F.2d 1467, 1480 (11th Cir. 1985). See

also King, 849 F.2d at 489-490. Further, the Eleventh Circuit has been clear that it is well within

the discretion of the district court judge, based solely on a careful review of the pleadings and

evidence developed at the magistrate’s detention hearing, to adopt the magistrate’s order should it

determine that the magistrate’s findings are supported and his legal conclusions are correct. King,

849 F.2d 485. Indeed, the magistrate’s findings must be given “respectful consideration.” Id ; United


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On page 12 of his Motion to Revoke, the Defendant claims that he is not an Iranian citizen. This

must be a misstatement. Defendant’s prior counsel admitted and explained that Defendant has two

passports, a U.S. passport and an Iranian passport, and that he uses the Iranian passport for travel to Iran.

Tr. at p.29. The Defendant also admitted in a post-arrest statement to arresting agents that he uses an

Iranian passport for travel to Iran. See Attachment B, hereto (copy of report of Defendant’s post-arrest

statement).

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States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986); United States v. Williams, 753 F.2d 329, 333 (4th

Cir. 1985).

The instant case presents the precise circumstances in which such deference to the

magistrate’s findings and conclusions is warranted. Defendant has articulated no legitimate basis

upon which to question the Magistrate Judge O’Sullivan’s findings or legal conclusions. To the

contrary, Defendant throws out a series of allegations concerning the level of proof supporting the

Government’s case - an apparent effort to cause the conduct of a mini-trial of the case, which is

wholly inappropriate at this stage. 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).

Contrary to Defendant’s arguments, the Magistrate Judge carefully considered each of the

factors set forth in the Bail Reform Act and found that the Government had amply proven each of

the factors in favor of a determination that the Defendant presents a risk of flight. Defendant’s

unsupported allegations concerning the strength of the Government’s case do not cast any real doubt

on the Magistrate Judge’s findings nor on the bases underlying those findings.

A reading of Defendant’s Motion evidences the fact that Defendant’s claims of overstatement

and speculation by the Government at the pretrial detention hearing is wholly without merit.

General Background

Defendant Hassan Keshari is an Iranian national who maintains his Iranian citizenship1 and

possesses an Iranian passport which he uses for travel to Iran. Keshari is also a naturalized United


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States citizen and has resided in the United States for the last thirty years with his wife and children.

Although he does have other family in the United States, his parents, brother, one sister, and other

relatives, as well as his wife’s relatives, all reside in the Islamic Republic of Iran. Moreover, the

majority of Keshari’s business associates and clients are in Iran. Within the six months prior to his

arrest, Keshari traveled to Iran two times and spent time with friends and family. To facilitate his

recent travel in the last several years, in 2004, Keshari obtained a waiver from the Iranian military

of his military obligations as an Iranian male. See Attachment A, hereto. Accordingly, he is now

free to travel to Iran without concern that he will be drafted for military service.

Keshari is the owner of Kesh Air International, an aircraft parts broker and supplier located

in Novato, California. For at least 7 years, Keshari, through Kesh Air International, has been

obtaining aircraft parts in the United States and exporting those parts to buyers and end users in Iran,

including Iranian Government and military entities, in violation of the United States Iran Embargo.

Many of the aircraft parts exported by Keshari for purchasers in Iran are parts designed exclusively

for military aircraft and are designated on the United States Munitions List as defense articles which

are prohibited from export from the United States without appropriate licenses from the United

States Department of State. Moreover, many of the customers and end-users for whom Keshari

exported these aircraft parts are procurement entities directly affiliated with the Iranian military. All

of this information is documented in Defendant Keshari’s email communications and documents

found in his business. Neither Keshari nor his business, Kesh Air International, possessed or ever

applied for licenses to export aircraft parts (or any other articles) to Iran nor to export defense

articles to any place outside the United States.

As Defendant Keshari explained during his post-arrest interview, the scheme by which

Keshari undertook to facilitate illegal exports of aircraft parts to Iran was as follows: individuals and

entities in Iran (very often Keshari’s wife’s cousins, Amir Hossein Atabaki and Reza Zahedi)


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forwarded by way of email or facsimile to Keshari requests for quotes (“RFQ”s) for specific aircraft

parts which they received from end-users and ultimate customers also located in Iran; Keshari

obtained prices and delivery time estimates from suppliers in the United States (often codefendant

Traian Bujduveanu) for the requested aircraft parts; Keshari, in turn, provided price and delivery

time quotes to his customers in Iran; Keshari’s Iranian customers then placed orders for specific

parts from Keshari; the Iranian customers then transferred funds to a bank in the United Arab

Emirates (“UAE”), which, in turn, transferred funds to Keshari’s bank account in the United States;

Keshari or his supplier then shipped the aircraft parts to a company in the UAE, which, in turn,

shipped the aircraft parts to Keshari’s customer in Iran.

Since learning of Keshari and codefendant Bujduveanu’s illegal export activities, federal

agents conducted several court authorized search warrants of email accounts used by the defendants

and seized thousands of email communications by the defendants. The seized communications

document hundreds of illegal exports by Defendant Keshari, including everything from the RFQs

from Iran to the shipping documents and payment information and receipt confirmations from

Iranian customers. These email communications were then corroborated by federally subpoenaed

documents, including documents from international shipping companies, defendants’ banks and

credit card companies, and various aircraft parts manufacturers and suppliers. All of these emails

have been provided to the defendants in discovery.

On June 20, 2008, Defendant Keshari was arrested at Miami International Airport as he

arrived on a flight from San Francisco, California. Following his arrest, and after waiving his

Miranda rights, Defendant Keshari was interviewed by arresting agents. During his post-arrest

interview, Keshari initially lied to investigators by stating that he does not do business with Iranian

customers. He did, however, admit at the outset that he was aware of and familiar with the Iran

Embargo, and he explained that he is very familiar with aircraft parts and can readily distinguish


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between commercial and military aircraft parts. When confronted with email communications

between him and his Iranian customers, he subsequently stated that he had only two Iranian

customers, Amir Atabaki and Reza Zahedi, but no others. Later, he stated that he had one other

Iranian customer, Raht Aseman. Keshari also initially lied by stating that he does not sell military

parts and that Atabaki and Zahedi did not send RFQs for military parts. Keshari also lied and stated

that he made no purchases from codefendant Traian Bujduveanu or his company, Orion Aviation.

When confronted with email communications documenting purchases of military aircraft parts,

Keshari then admitted that he did sell military parts to Atabaki and Zahedi but that he never actually

kept the military parts in his business. Keshari also admitted that he purchased most military parts

from Orion Aviation, which would export the parts for him. Keshari further admitted that he sold

military parts for financial reasons because his business was having financial difficulties.

Finally, Keshari laid out, in detail, the scheme by which he exported military and commercial

aircraft parts to Iran, to include receipt of orders from his customers in Iran and shipment of the parts

to Iran by way of UAE, and receipt of payment from Iran by way of UAE. Keshari confirmed more

than once that he knew the parts he exported, both commercial and military, were going to end users

in Iran. He also confirmed that he had traveled to Iran several times using his Iranian passport. All

of this is set forth in the report of Defendant Keshari’s post-arrest statement (Att. B).

On June 21, 2008, Keshari’s California business, Kesh Air International, was searched

pursuant to a court authorized search warrant. Agents recovered approximately eight boxes of

documents from the business documenting additional communications directly with Iranian

customers and many more illegal exports of aircraft parts, both military and commercial, to

numerous Iranian end users. All of those documents have been made available to the Defendant in

discovery.


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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.

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On June 23, 2008, Defendant Keshari had his initial appearance in federal court, and the

United States announced that it would seek pretrial detention of Defendant Keshari based on a risk

of flight.

The Pretrial Detention Hearing

On June 26, 2008, United State Magistrate Judge John J. O’Sullivan 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 Defendant’s 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 Government’s 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 Defendant’s

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.2


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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).

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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. 46-

47.

The Court also found by a preponderance of the evidence3 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,

a reason to support the Defendant should he return to Iran. The Court went on to state that it

considered that the Defendant has close business ties in Iran and that he had been doing business

with his wife’s 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


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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.

On July 3, 2008, Defendant and codefendant Bujduveanu, along with their respective

corporate identities, were indicted by a federal grand jury sitting in Miami, Florida. The indictment

charges the defendants with conspiring to violate the United States Iran Embargo and the Arms

Export Control Act, in violation of 18 U.S.C. § 371, by exporting military aircraft parts to Iran

without licenses, and with substantive violations of the Iran Embargo and the Arms Export Control

Act, in connection with their exports of the aircraft parts to Iran by way of Dubai, UAE.

Both individual defendants were arraigned on July 8, 2008. Shortly thereafter, the

Government began producing discovery for the defendants. Although the Government has made

available to the defense 16 boxes of documents seized from the Defendants’ businesses and images

of Defendants’ computer hard drives, Defendant Keshari has not yet made efforts to obtain the

voluminous evidence of Keshari’s acts. Moreover, counsel for Defendant Keshari indicated that he

was having difficulty opening and reading discs containing emails seized from the Defendants’

email accounts and was only able to read documents on one of the discs as recently as this week -

after he filed the Motion to Revoke which is now before this Court. So, Defendant’s Motion, like

his earlier Motion to Reopen the Pretrial Detention Hearing, although based almost entirely on

claims that the Government is exaggerating the evidence against him, was filed before Defendant

or his counsel had even seen any of the evidence. This explains why Defendant’s Motion, like his

earlier Motion, demonstrates a fundamental misunderstanding of the nature of the case against him

and the strength of the evidence against him.

A reading of Defendant’s Motion makes this abundantly clear.

Defendant’s Arguments Regarding The Course of Proceedings


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There may be nothing illegal about Defendant Keshari’s domestic purchases of many aircraft

parts, unless those parts were purchased for export to Iran. As investigators cull through the evidence

in this case, they link more and more of Keshari’s domestic purchases to RFQs from Iran.

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As explained in the Government’s Response to the Motion to Reopen the Detention

Hearing, investigating agents have explained that no more than approximately 5% (at most) of the

Defendant’s email communications pertain to anything other than illegal transactions with Iran.

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1. There is Little, if any, Evidence of Legitimate Business Dealings by Defendant Keshari.

Defendant’s first allegation is that the search of Defendant’s business, Kesh Air

International, revealed evidence of legitimate business transactions by Defendant Keshari. As the

Government asserted during the detention hearing and in its Response to Defendant’s Motion to

Reopen, investigating agents are still unable to determine whether Keshari was engaged in any

legitimate business transactions that did not involve the Republic of Iran.4 The review of documents

seized from the business thus far has served only to confirm that Keshari was engaged in many more

illegal shipments of military and commercial aircraft parts to Iran, in violation of the Iran Embargo

and the Arms Export Control Act. The review has also served to confirm that Keshari was well

aware of the fact that he was quoting and exporting military aircraft parts, given that many of the

RFQs and purchase orders found at his business specifically indicate the aircraft to which the

requested parts correspond. Many of those RFQs have, in turn, been linked to actual sales and

exports by Keshari.

Many documents, as well as commercial aircraft parts, were left behind at the business and

not seized by agents who conducted the search. It is possible that those documents contain evidence

that Keshari did engage in some legitimate business activity, but that does not in any way detract

from the fact that the overwhelming majority of documents and communications which investigators

have read confirm that Keshari was engaged in large volumes of illegal business, that is exports of

commercial and military aircraft parts to Iran.5


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2. All of the Aircraft Parts Charged in the Complaint and in the Conspiracy

Are Designated As Defense Articles on the USML.

Defendant next claims, as he did in his Motion to Reopen, that the Government overstated

claims concerning the aircraft parts at issue. According to the Defendant, the Government did not

specifically identify the parts at issue but claimed that they are all designated on the United States

Munitions List. The Defendant further argues that this must have been an overstatement by the

Government because the Indictment does not charge that all of the parts were exported in violation

of the Arms Export Control Act. This claim is just wrong.

First, at the pretrial detention hearing, counsel for the Government made it very clear that

the parts being discussed at the hearing were the parts charged in the Complaint. See Pretrial

Detention Hearing Transcript (hereinafter “Tr.”) at pp. 6-7. Moreover, as the Government stated

at that hearing, all of the parts charged in the Complaint are designated as defense articles on the

United States Munitions List. By the time the Government filed the Complaint, investigating agents

had received determinations from the Department of State that each of the items in the Complaint

is a Munitions List item.

As explained in the Government’s Response to Defendant Motion to Reopen the Pretrial

Detention Hearing, and as explained independently to counsel for the Defendant, the Government

did not charge all of those parts as substantive violations of the Arms Export Control Act in the

Indictment because 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


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exclusively for use on military aircraft. As undersigned counsel has explained to Defendant’s

counsel, the United States anticipates that when the formal certificates regarding the remaining items

have been received, the United States will supersede the Indictment to include charges based on

those designations. By the time the Indictment was presented, the Government had only received

final certificates for two of the aircraft parts exported by the Defendants, those two parts being the

F-14 fighter jet parts. To the extent that the Defendant seeks to challenge the nature of these items,

a detention hearing is not the time or the place. In fact, the law is clear that a defendant in a criminal

prosecution may not challenge the determination concerning whether an item is designated on the

United States Munitions List. See 22 U.S.C. § 2778(h) (“The designation by the President (or by any

official whom the President’s functions under subsection (a) have been duly delegated), in

regulations issued under this section, of items as defense articles or defense services for purpose of

this section shall not be subject to judicial review.”); see also United States v. Martinez, 904 F.2d

601, 602 (11th Cir. 1990) (rejecting the defendants’ challenge to placement of an item on the USML

and stating “The question whether a particular item should have been placed on the Munitions List

possesses nearly every trait that the Supreme Court has enumerated traditionally renders a question

‘political’.”).

For purposes of considering the nature and circumstances of the offenses charged in the

Indictment, suffice it to say that the Indictment charges the Defendant with conspiring to export

seven aircraft parts to Iran, including two parts designed exclusively for the F-14 Fighter jet which

are designated and charged as defense articles. As explained at the pretrial detention hearing, F-14s

are used exclusively by the military of the Islamic Republic of Iran - designated by the United States

as a state sponsor of terrorism. So, the Indictment does make it clear that the Defendant was helping

to build up the military of a state sponsor of terrorism. Those are charges of a very serious nature.

3. Defendant Keshari Does Not Deny His Recent Travel to Iran.


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Actually, a review of Defendant’s email communications reflects that he and his wife enjoyed being

in Iran so much they were looking into buying an apartment there. See Attachment D, hereto.

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As part of his claim that the Government “significantly overstated” claims at the detention

hearing, Defendant argues that only two of Defendant’s four trips to Iran occurred in the last two

years. The Government asserted at the Detention Hearing that three of the Defendant’s trips

occurred in the last two years. Travel records indicate that the two trips that Defendant does

acknowledge occurred within the last six months, approximately, before the detention hearing.

Defendant also admitted this in his post-arrest statement, a copy of which Defendant now has in his

possession.6 It is worth noting that Defendant appears to have misrepresented this fact to pretrial

services, as the pretrial services report indicated that, during his interview, Defendant Keshari

claimed that he had only traveled to Iran one time in December of 1997.

4. The Overwhelming Majority of Defendant’s Email Communications

Demonstrate That Defendant Was Involved in Illegal Exports of Aircraft Parts to Iran.

Defendant next argues that the Government exaggerated at the hearing the fact that emails

found in the Defendant’s account document the illegal nature of the shipments charged. Again, the

Defendant has no basis for arguing this. He filed the instant Motion before he had seen the emails

recovered by investigating agents from his accounts. Rather, Defendant is basing this claim on the

review of a few emails, which, standing alone, sound exculpatory. As the Government stated at the

detention hearing and in its Response to Defendant’s Motion to Reopen the Pretrial Detention

Hearing, the overwhelming majority of the emails found in the Defendant’s accounts support the

Government’s charges that the Defendant was engaged in the illegal export of aircraft parts to Iran.

Those emails also document both the charges in the Complaint against the Defendant and the

charges in the Indictment, as well as numerous other transactions. As the Government pointed out

in its Response to Defendant’s previous Motion, the Government has seen those few emails in which


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the Defendant attempts to appear to his codefendant that he is unwilling to deal in military parts.

However, as the Government also pointed out, the Government has also seen hundreds of other

emails in which the Defendant quotes, sells, and ships military parts knowing that the parts are

military. Some emails, when read out of context, may appear to be exculpatory, but, when read in

context with other emails, the exculpatory nature of those emails turns out to be less clear.

For example, in an email string between Defendant Keshari and co-defendant Bujduveanu

in January 2007 (a copy of which is attached hereto as Attachment E), Bujduveanu advises Keshari

that a part Keshari has ordered is for a military helicopter. Keshari responds that he did not know

that and asks Bujduveanu to advise him if he thinks that will be a problem. When Bujduveanu

advises Keshari that “There is no problem,” Keshair proceeded to place orders for the part for his

clients in Iran. No matter how one interprets Keshari’s intent when sending the question to

Bujduveanu, the fact is, Keshari nevertheless proceeded to order and export the parts to Iran even

after he was advised that the parts are for military helicopters. Again, there is an overwhelming

amount of communications like this in this case.

5. The Evidence is Strong That Defendant Keshari Knew He Was Dealing in Military Parts.

Defendant next argues that the Government was resorting to pure speculation when it stated

that Defendant Keshari knew that he was dealing in military aircraft parts. Again, this case is not

entirely about military aircraft parts. It is illegal to export any aircraft parts, military or commercial,

to Iran, and the evidence that he was exporting both military and commercial aircraft parts to Iran

is overwhelming. Nevertheless, as explained at the detention hearing, there is substantial evidence

that the Defendant knew he was dealing in military aircraft parts, not the least of which is the

Defendant’s own post-arrest statement that he sold military parts to customers in Iran for financial

reasons. Also, if Defendant reads the discovery, the Defendant will see that there are many

documents both in the Defendant’s own office files, as well as in his email communications, which


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make it very clear that parts he was quoting, selling, and exporting were military parts. As explained

above, those documents include RFQs and purchase orders which specify that parts are for military

aircraft, as well as attachments to email correspondence sent to Keshari from his Iranian clients with,

for example, pages from the F-14 manual with indications of the particular part sold by Keshari to

Iran. See, e.g., Attachment F, hereto (email from Iranian client to Keshari with two attachments, one

of which is titled “NAVAIR 01-F14AAA-4-7", indicating F-14 Harness Assembly part shipped to

Iran). As the Government asserted at the detention hearing, and as the Defendant himself admitted

during his post-arrest interview, the Defendant is very familiar with aircraft parts and is able to

distinguish between military and commercial parts. It follows that he knows that Navair (which is

short for “naval aviation”) F-14 from Grumman pertains to a military aircraft.

6. Defendant Admitted During His Post-Arrest Statement

That He Knowingly Exported Commercial and Military Aircraft Parts to Iran.

The Defendant’s next argument is difficult to comprehend. Defendant argues that his post-

arrest statement does not contain admissions but rather that it exculpates him. Although the

Defendant initially attempted to downplay his guilt, he quickly proceeded to admit that he knew he

was exporting aircraft parts, including military parts, among other items, to Iran by way of Dubai.

Defendant’s reading of the statement as exculpatory is truly incomprehensible. The report of the

defendant’s post arrest statement is attached hereto as Attachment B. The Government leaves the

interpretation of the statement to the Court.

7. Defendant Faces Up to Twenty Years’ Imprisonment For the Charges in the Indictment.

The Defendant next argues that the Government exaggerated the Defendant’s sentencing

exposure at the detention hearing and claims that the Government indicated in its Response to the

Motion to Reopen that the Defendant faces five years “at most.” This is just false and a

misrepresentation of the Government’s statements.


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As explained above, in addition to the conspiracy charges, Defendant is charged with

substantive violations of the Iran Embargo and the Arms Export Control Act. As the Government

stated at the detention hearing, the statutory maximum penalty for violations of both of these statutes

is twenty years. See 50 U.S.C. § 1705(a) (the International Emergency Powers Act, which provides

penalties for violations of the Iran Embargo) and 22 U.S.C. § 2778(b) (the Arms Export Control

Act).

Moreover, in the Government’s Response to Defendant’s Motion to Reopen the Pretrial

Detention Hearing, the Government stated: “Without going into further discussion of other factors

and the potential for future additional charges in this case, the applicable guideline level for a

violation of the Arms Export Control Act (22 U.S.C. § 2778)... is a base offense level of 26

(U.S.S.G. § 2M5.2(a)(1)), which carries a sentence of 63-78 months.” Government’s Response to

Defendant’s Motion to Reopen Pretrial Detention Hearing at pp. 8-9. So, the Defendant starts at

a little over five years. This is also true with respect to violations of the Iran Embargo, which also

has a base offense level of 26. (U.S.S.G. § 2M5.2(a)(2)). In fact, the Application Notes to U.S.S.G.

§ 2M5.2(a)(1) also provide that an upward departure may be warranted in a case, such as this, in

which there are multiple occurrences.

8. The Charges Against The Defendant Are Serious and Well Supported By The Evidence.

As he did in his Motion to Reopen the Pretrial Detention Hearing, Defendant again attempts

to downplay the serious nature of the charges against him. At the outset, the fact that none of the

parts charged in the Indictment is not a “weapon” is completely irrelevant. See Defendant’s Motion

at pp.5-6. This case is not about “weapons”, and the Government has never claimed that it is.

Rather, this case is about the Defendant’s provision of aircraft parts to the Islamic Republic of Iran.

Many of those aircraft parts are designed exclusively for military aircraft, and some of those parts

are designed exclusively for military aircraft used exclusively by the Iranian military. As the


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Magistrate Judge put it: “You would have to be deaf, dumb, and blind not to know that the United

States considers [Iran] a state sponsor of terrorism.” Tr. at p.47.

As also explained in the Government’s Response to the Motion to Reopen the Pretrial

Detention Hearing, the parts charged in the indictment are not “common aircraft parts.” 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

parts identified as harness assemblies and accumulators, but they do not use these harness

assemblies and accumulators identified in this case. There is no other use for these 6 parts. This

is confirmed by the fact that all 6 of these items have been designated as United States Munitions

List items. Designation of an aircraft part on the United States Munitions List means that the part

is designed exclusively for military aircraft, and, as explained above, the Defendant cannot challenge

that designation in a criminal prosecution.

Defendant’s attempts to downplay the serious nature of the charges in this case represents

either a fundamental misunderstanding of the charges against him or an apparent lack of concern

about the threat that Iran’s military presents for the United States - a concern which would certainly

weigh in favor of a determination that the Defendant is flight risk.

A Hearing on This Motion Is Not Warranted.

Defendant next argues that this Court should conduct a hearing because there are unresolved

factual disputes. As explained above, the Defendant’s Motion is filled with nothing but unsupported

allegations by the Defendant designed to cast doubt on the Government’s claims at the pretrial

detention hearing by misconstruing the Government’s statements and misrepresenting details

concerning what little evidence the Defendant has actually reviewed, all in an effort to fabricate

factual disputes that do not exist. The record is clear. The Government stands by all of its assertions


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“The weight of the evidence against a defendant is the least important factor identified in §

3142(g).” U.S. v. Tooze, 236 F.R.D. 442, 447 (D. Arizona 2006); U.S. v. Winsor , 755 F.2d 755, 757 (9th

Cir. 1986).

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at the pretrial detention hearing and in its Response to Defendant’s Motion to Reopen the Detention

Hearing.

Nothing in Defendant’s Motion raises any real factual disputes about anything relevant to

the issue of whether the Defendant presents a flight risk. Rather, the issues raised by the Defendant

all present challenges concerning the strength of the Government’s case. While the weight of the

evidence against the Defendant is one consideration for the Court, it is not an invitation for the

defense to force a pretrial of the case by the Government.7 In the instant case, the record clearly

supports the Magistrate’s finding that the weight of the evidence is strong, as demonstrated by the

Defendant’s post-arrest statement (attached hereto) and the volumes of documents, email

communications, and evidence stored on computer hard drives in this case (all of which are listed

in the Government’s Responses to the Standing Discovery Order filed in the Court record).

There is certainly no basis upon which to claim that any of the Magistrate Judge’s findings

were clearly erroneous.

Defendant’s Additional Arguments

The Cases Relied Upon By The Defendant Present Very Different Circumstances and Do Not Suggest That This Defendant is Anything But a Clear Flight Risk.

In support of his argument that the Government did not sufficiently demonstrate that the

Defendant is a serious flight risk, Defendant relies heavily on two cases, United States v. Motamedi,

767 F2d 1403 (9th Cir. 1985), and Truong Dinh Hung v. United States, 439 U.S. 1326 (1978). Both

of these cases present Defendants with very different circumstances, insofar as flight risk

assessments are concerned, from that of the Defendant.


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In Motamedi, there were many factors indicating that he was not as great of a risk of flight.

Most significantly, Motamedi’s entire family, including 85 relatives among them his wife, siblings,

and parents, all resided in Los Angeles, where Motamedi resided. Not only did he have no family

in Iran, but, to the contrary, his family had been forced to flee the country of Iran and all their

properties confiscated after the fall of the Shah, such that he would not be able to return to Iran if

he so desired. Also, Motamedi had been warned, prior to his arrest, that he was under investigation,

and he did not flee. Moreover, after his arrest, he had been released on bond and had not fled or

failed to make any court appearances. These are very different circumstances from the Defendant

in this case, who has immediate and extended family in Iran, is able to and has traveled there freely,

and cannot say that he has demonstrated cooperation with authorities in the past.

Similarly, in Truong Dinh Hung, the Defendant demonstrated that he was not likely to flee

under the circumstances of his case. Unlike this case, in Truong Dinh Hung, the defendant’s case

was pending appeal, and, according to the court, had a high likelihood of success on appeal.

Moreover, the defendant in that case had been out on bond prior to and during his trial and had

faithfully complied with the terms of his pretrial release. Again, Keshari has nothing to demonstrate

that he will not flee, and, given the overwhelming amount of evidence against him with which he

is confronted, it can not be said that his outlook is as promising as the defendant in Truong Dinh

Hung.


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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 Defendant’s 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

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, Defendant’s 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. Defendant’s 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

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 Defendant’s new

counsel, indicate that the Government exaggerated claims about the evidence at the detention


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hearing. Defendant’s claims are baseless and premature and reflect a fundamental misunderstanding

of the charges against the Defendant in this case. Moreover, Defendant’s 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 Defendant’s

Motion makes this clear.

Information About Defendant’s 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 Defendant’s personal information. And, this is all

information laid out by Defendant’s previous counsel during the detention hearing. Certainly, none

of this information warrants a reopening of the hearing as it was known to the Defendant at the time

of the original hearing.

Defendant’s Arguments That the Government’s 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 Government’s 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.


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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).

This leads to Defendant’s 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.

Next, Defendant argues that the Government made unsupported allegations at the pretrial

detention hearing related to Mr. Keshari’s knowledge and intent. Contrary to Defendant’s 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. Defendant’s claim that the

Government’s 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 Defendant’s office as well as hundreds


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(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 post-

arrest, 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,

Defendant’s claims that the Government’s 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 Defendant’s 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

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 Government’s

position that the reading of Defendant’s emails, that the contents of his computers, and that the

documents found in Defendant’s 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

Government’s 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 Defendant’s place of business have found, up

to this point, that less than roughly 5% of the evidence on those computers, including evidence of


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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

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 Defendant’s 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


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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


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CERTIFICATE OF SERVICE

I hereby certify that on August 8, 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


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