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Defendant’s sentencing is scheduled for 8:30 a.m. on October 6, 2008.
1
Although this Court’s local rules sets motion hearings at 3:30 p.m. on Mondays,
Defendant requests that this motion be heard concurrently with his sentencing hearing.
RONALD O. KAYE (No. 145051)
KAYE, McLANE & BEDNARSKI, LLP
128 North Fair Oaks Avenue
Pasadena, California 91103
Telephone: (626) 844-7660
Facsimile: (626) 844-7670
E-Mail: rok_kmb@earthlink.net
Attorneys for Defendant
SEYED MAHMOOD MOUSAVI
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
SEYED MAHMOOD MOUSAVI
Defendant.
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NO. CR 07-513(C)-PA
NOTICE OF MOTION;
MOTION FOR A NEW TRIAL;
MEMORANDUM OF POINTS
AND AUTHORITIES;
DECLARATIONS; EXHIBITS
Hearing Date: October 6, 2008
Hearing Time: 3:30 p.m.
TO:
UNITED STATES ATTORNEY THOMAS P. O’BRIEN AND ASSISTANT
UNITED STATES ATTORNEY SUSAN DeWITT:
PLEASE TAKE NOTICE that on October 6, 2008, at 3:30 p.m., or as soon
1
thereafter as counsel may be heard, in the courtroom of the Honorable Percy
Anderson, United States District Judge, Defendant Seyed Mahmood Mousavi, will
bring on for hearing the following motion:
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The Third Superseding Indictment lists the following positions and / or
2
entities: the Islamic Revolutionary Committee; the Islamic Revolutionary Court as an
Interrogator; the Office of the Governor General; the Housing Foundation in the
Province of Khuzestan; the Committee for Industrial Expansion in the Province of
Khuzestan; the Tribal Center of the Province of West Azerbaijan as a Supervisor; and
the Office of Public Security as a Director.
1
MOTION
Defendant Seyed Mahmood Mousavi, by and through his attorney of record,
Ronald O. Kaye, hereby moves this Honorable Court for an Order granting a new
trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and vacating
his conviction in this case on counts one, three, four, five and six of the Third
Superseding Indictment. This motion reflects newly discovered evidence by way of
newly located witnesses who were not present at trial:
1)
Counts 5 and 6: Testimony of Dr. Mohammad Sahimi and Dr. Seyed
Mohammad Marandi: Dr. Sahimi and Dr. Marandi, professors at the
University of Southern California and the University of Tehran, respectively,
have reviewed the government’s discovery which was seized from Mr.
Mousavi’s home. Dr. Sahimi and Dr. Marandi have provided declarations to
the Court, attached hereto. These documents reveal that Mr. Mousavi was: a)
never a part of the Iranian military; b) ordered to take the government
positions listed in the Third Superseding Indictment during the invasion of
Iran by Iraq in the 1980s ; and c) the other position listed in the Indictment,
2
the Welcoming Committee for the Imame Ummat, was a loose collection of
thousands / millions of individuals throughout Iran in 1979 welcoming
Ayatollah Khomeini’s return from exile. These experts will testify that due
to the compulsory nature of the positions, and the loose connection of the
virtually the entire population in welcoming Ayatollah Khomeini from exile,
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that it was reasonable for Mr. Mousavi to write “none” for prior
“affiliations,” “memberships,” or positions within the Iranian military on his
citizenship application.
2)
Counts Three and Four: Testimony of Mr. Mohammad Al Sager, Mr.
Abdul Mohsen Hayat, Dr. Mohammad Sahimi and Dr. Seyed
Mohammad Marandi: The declaration of Mr. Mohammad Al Sager – the
former Chairman and Managing Director of the Al Mal Kuwaiti Company,
who was the signatory on the June 11, 2002 Al Mal Kuwaiti contract with
Mr. Mousavi for the creation of the GSM cellular telephone network, and the
declaration of Mr. Abdul Mohsen Hayat – the former General Manager for Al
Mal Kuwaiti Company during the time of Mr. Mousavi’s contract establish
that: a) the money wired to Mr. Mousavi was not income, but advances on the
contract which were considered to be a loan to Mr. Mousavi; b) no work on
the contract ever occurred; and c) there was no discussion of the impact of
the Embargo between the United States and Iran on the contract.
Dr. Sahimi and Dr. Marandi, both U.S. citizens and experts on Iranian
American society, would testify about the level of knowledge within the
Iranian community reflecting whether the contract with Al Mal Kuwait for
the creation of a GSM cellular telephone network violated the United States
Embargo with Iran. It is their opinion that they, along with sophisticated
members of the Iranian American business community, would be unaware
that this contract would violate the Embargo.
3)
Count One: Testimony of Mr. Mohammad Al Sager and Mr. Abdul
Mohsen Hayat: Both Mr. Al Sager and Mr. Hayat will testify that the
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$45,040 in wire transfers from Al Mal Kuwaiti Company to Mr. Mousavi’s
account – from which the government charged Mr. Mousavi with a Filing a
False Tax Return, a violation of 26 U.S.C. § 7206(1) – were advance
payments to Mr. Mousavi which, when the contract did not materialize, were
considered loans from Al Mal Kuwait Company, not income earned.
This motion is based upon the attached Memorandum of Points and
Authorities, all files and records in this case, the declarations and exhibits filed
concurrently herewith, and all other evidence which may be produced at the hearing
of this motion.
Respectfully submitted,
KAYE, McLANE & BEDNARSKI, LLP
DATED: September 15, 2008
By
/S/
RONALD O. KAYE
Attorney for Defendant
Seyed Mahmood Mousavi
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i
TABLE OF CONTENTS
TABLE OF AUTHORITIES CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . 2
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
NEWLY DISCOVERED EVIDENCE . . . . . . . . . . . . . . . . . . . 5
B.
THE FAILURE TO DISCOVER THE EVIDENCE
SOONER WAS NOT THE RESULT OF A LACK OF
DILIGENCE ON THE DEFENDANT’S PART . . . . . . . . . . . 6
C.
THE TESTIMONY OF DR. SAHIMI , DR. MARANDI,
MR. AL SAGER, AND MR. HAYAT ARE MATERIAL,
NON-CUMULATIVE, AND WOULD LIKELY HAVE
RESULTED IN AN ACQUITTAL . . . . . . . . . . . . . . . . . . . . . 8
1.
Count 6 - Purported False Statement of Mr. Mousavi
not Being a Member of the Iranian Military . . . . . . . . . 8
2.
Count 5 - Fraud on Citizenship Application . . . . . . . . . 9
3.
Counts 3 and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.
Count 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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ii
TABLE OF AUTHORITIES
FEDERAL CASES
Lennon v. INS, 527 F.2d 187, 193 (2d Cir.1975) . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Anvari-Hamedani, 378 F.Supp.2d 821, 830 (N.D. Ohio 2005) . 13
United States v. Gonzalez-Mendoza, 985 F.2d 1014 (9th Cir. 1993)
. . . . . . . . . . . . . 4
United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005) . . . . . . . . . . . . . . . 5
United States v. Hescorp, Heave Equipment Sales Corp. 801 F.2d 70, 77
(2 Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
nd
13
United States v. Hinkson 526 F.3d 1262, 1277-1278 (9 Cir. 2008) . . . . . . . . .
th
5, 8
United States v. Homa Intern. Trading Corp., 387 F.3d 144, 147
(2 Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
nd
13
United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991)
. . . . . . . . . . . . . . . . . . . . . 5
United States v. Quinn, 403 F.Supp.2d 57, 64 (D.D.C. 2005) . . . . . . . . . . . . . . . 13
FEDERAL STATUES, RULES AND REGULATIONS
18 U.S.C. § 1425
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9
26 U.S.C. § 7206(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
26 U.S.C. § 7212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
50 U.S.C. §§ 1701-1705
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13
31 C.F.R. § 560.204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
31 C.F.R. § 560.206
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. Crim. P. 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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2
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
On April 24, 2008, the jury found Mr. Mousavi guilty of all six counts in the
Third Superseding Indictment: Count 1, Filing a False Tax Return, 26 U.S.C. §
7206(1); Count 2, Impeding Administration of Tax, 26 U.S.C. § 7212; Counts 3 & 4,
International Emergency Economic Powers Act - Iranian Transactions Regulations,
50 U.S.C. §§ 1701-1705, 31 C.F.R. §§ 560.204 and 560.206; Count 5, Procurement
of Citizenship Contrary to Law, 18 U.S.C. § 1425; and Count 6, False Statement
within the Jurisdiction of the Federal Government.
Count 1 stems from the failure to report on Mr. Mousavi’s 2002 federal
income taxes $45,040 in wire transfers from the Al Mal Kuwaiti Company; Counts 3
and 4 stem from the purported violation of the Embargo between the United States
and Iran by entering into the contract with the Al Mal Kuwaiti Company for the
bidding for a GSM license (Global System for Mobile Communications - cellular
telephones) with Iran Electronic Development Company and to help establish a bank
and leasing company in Iran for this purpose, See Exhibit A, June 11, 2002 contract
with Al Mal Kuwaiti Company; Count 5 stems from failure of Mr. Mousavi to list
“memberships or affiliations” on his Application for United States Citizenship; and
Count 6 stems from Mr. Mousavi’s purported false statement to a federal agent that
he was not a member of the Iranian military.
Mr. Mousavi presented no evidence in support of his defense. Since his
conviction, counsel has located experts Dr. Mohammad Sahimi and Dr. Seyed
Mohammad Marandi, professors at the University of Southern California and the
University of Tehran, respectively. See Declaration of Dr. Sahimi, with attached
curriculum vitae, and Declaration of Dr. Marandi, with attached curriculum vitae.
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Mr. Al Sager presently is the President of the Arab Interim Parliament.
3
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These experts have provided substantial new information reflecting counts 5 and 6 –
Mr. Mousavi’s purported affiliation or membership in groups, including the military,
in Iran, and his failure to disclose this information on his Naturalization Application.
In addition, Dr. Sahimi and Dr. Marandi provide substantial expertise
reflecting counts 3 and 4, the Embargo violations.
Dr. Sahimi’s and Dr. Marandi’s opinions reflecting that lack of knowledge in
the Iranian community reflecting what conduct was prohibited by the Embargo, is
supported in the instant case by the Declarations of Mr. Mohammad Al Sager, the
prior Chairman and Managing Director of the Al Mal Kuwaiti Company and Mr.
3
Abdul Mohsen Hayat – the former General Manager for Al Mal Kuwaiti Company
during the time of Mr. Mousavi’s contract. The testimony of the prior managers of
Al Mal Kuwaiti Company rebuts the claim of the government that Mr. Mousavi
received income for the Al Mal contract.
Finally, with regard to Count 1, Mr. Abdul Mohsen Hayat’s declaration
demonstrates that the $45,040 in wire transfers from Al Mal Kuwaiti Company to
Mr. Mousavi stems from advances to a contract which never materialized, and were
considered loans, not income earned.
This newly found witnesses and testimony fulfills the requirements under
Rule 33 of the Federal Rules of procedure as newly discovered evidence.
Ultimately, the jury received a misleading picture of what occurred in this
case. As a result of this verdict based primarily on incorrect evidence, Mr. Mousavi
not only is facing a substantial prison sentence, but he faces de-naturalization –
essentially expulsion from the country where he has built a productive life,
established a community, and has successfully raised his family. See Lennon v. INS,
527 F.2d 187, 193 (2d Cir.1975) (“Deportation is not, of course, a penal sanction.
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But in severity it surpasses all but the most Draconian criminal penalties. We
therefore cannot deem wholly irrelevant the long unbroken tradition of the criminal
law that harsh sanctions should not be imposed where moral culpability is
lacking.”); United States v. Gonzalez-Mendoza, 985 F.2d 1014 (9th Cir.
1993)(“Deportation is a sanction as harsh or harsher than many sanctions provided
by the criminal law.”).
Mr. Mousavi respectfully requests that this Court assess this powerful, newly
discovered, exculpatory evidence, and grant him a new trial in this case.
II.
ARGUMENT
Rule 33 of the Federal Rules of Criminal Procedure states:
(a) Defendant’s Motion. Upon a defendant’s motion, the
court may vacate any judgment and grant a new trial if the interest
of justice so requires. If the case was tried without a jury, the
court may take additional testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new
trial grounded on newly discovered evidence must be filed within
3 years after the verdict or finding of guilty. If an appeal is
pending, the court may not grant the motion until the appellate
court remands the case.
(2) Other Grounds. Any motion for a new trial grounded
on any reason other than newly discovered evidence must be filed
within 7 days after the verdict or finding of guilty, or within such
further time as the court sets during the 7-day period.
Fed. R. Crim. P. 33.
Generally, where a motion for a new trial is based upon “newly discovered
evidence,” a defendant must show that:
(1) [T]he evidence must be newly discovered; (2) the failure to
discover the evidence sooner must not be the result of a lack of
diligence on the defendant's part; (3) the evidence must be
material to the issues at trial; (4) the evidence must be neither
cumulative nor merely impeaching; and (5) the evidence must
indicate that a new trial would probably result in acquittal.
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United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005) (quoting United States
v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991)).
Although the test consists of five elements, “we have recognized that
requirements (3), (4), and (5) are duplicative. That is, newly discovered evidence is
"material" when the result of the newly discovered evidence is that "a new trial
would probably result in acquittal," a condition that is not usually met when the
newly discovered evidence is "cumulative or merely impeaching." United States v.
Hinkson 526 F.3d 1262, 1277-1278 (9 Cir. 2008)(citations omitted).
th
A.
NEWLY DISCOVERED EVIDENCE
As the threshold issue, the testimony from witnesses Dr. Mohammad Sahimi,
Dr. Seyed Mohammad Marandi, Mr. Mohammad Al Sager and Mr. Abdul Mohsen
Hayat are all newly discovered evidence. As described in the Declaration of Zeinab
Mousavi – Mr. Mousavi’s daughter, attached hereto, describes how she sought out
individuals to describe the history in Iran behind the positions and groups which
were omitted from Mr. Mousavi’s citizenship application. None of the academics
she contacted agreed to assist her father.
She then describes how she contacted Dr. Sahimi after the trial, after being
advised that he spoke on a radio program as an expert reflecting Iranian political and
social issues. She was completely unaware of what his position would be on these
issues, but sensing that the information about her father’s case had been incorrectly
presented to the jury, she sought out his assistance.
As for Dr. Marandi, counsel for Mr. Mousavi – who was retained after the
jury’s verdict – was approached after the trial by the Islamic Human Rights
Commission in London, England, inquiring whether there was any way they could be
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of assistance. See Declaration of Ronald Kaye. Counsel then was directed to Dr.
Marandi in Tehran who provided the information described in his declaration. Id.
As for Mr. Mohammad Al Sager and Mr. Abdul Mohsen Hayat, it was not
until August of 2008, when Mr. Mousavi’s daughter Zeinab located these individuals
in Kuwait, that their testimony was known to the defense. Further, it was not until
September of 2008 that counsel was able to communicate with these witnesses and
describe what was needed. Ultimately, it was not until Mr. Mousavi’s wife, Ms.
Nahid Nabhani, traveled to Kuwait during the first week of September, 2008, that the
defense was able to secure their declarations. See Declarations of Ronald O. Kaye
Zeinab Mousavi and Nahid Nabhani, attached hereto.
Thus, the defense had no information prior to, or during the trial in this case,
with regard to access to these experts, or to access these percipient witnesses, who
could corroborate Mr. Mousavi’s defense.
B.
THE FAILURE TO DISCOVER THE EVIDENCE SOONER WAS NOT
THE RESULT OF A LACK OF DILIGENCE ON THE DEFENDANT’S
PART
As demonstrated by the declaration of Zeinab Mousavi. prior to trial,
significant effort was taken to locate an expert witness to analyze counts 3, 4, 5 and
6. Repeatedly, experts in Iranian history and culture who were contacted – from the
University of Virginia, U.C.L.A., the Clairmont Colleges, and in San Diego, would
not agree to testify in a case against the government.
Consequently, prior counsel simply had to forego any affirmative evidence
supporting Mr. Mousavi’s defense to counts 5 and 6, reflecting the historical reality
of the conscription of individuals into the positions listed in the Third Superseding
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Indictment during the Iran / Iraq war. Further, there was no testimony whatsoever
reflecting the specific intent required for counts 3 and 4, the Embargo violations.
Moreover, as demonstrated in the declarations of Zeinab Mousavi – Mr.
Mousavi’s daughter, and Nahid Nabhani – Mr. Mousavi’s wife, attached hereto, great
efforts were taken to find percipient witnesses to the Al Mal contract prior to trial.
From the very beginning, after my husband was arrested, I
attempted to contact people at Al Mal Kuwaiti Company to bring
them to court and testify about the contract never going through,
and also that the money Al Mal Kuwaiti wired to my husband in
2002 was not salary for the contract.
Our family has a friend in London, and we asked him to try
and find Mr. Al Sager, the Chairman and Managing Director of Al
Mal Kuwaiti Company, who signed the agreement with my
husband in 2002. Our family friend had no luck, but did find the
e-mail address for Mr. Hayat, the General Manager of the Al Mal
Kuwaiti company. I explained the situation to Mr. Hayat that my
husband was facing a trial in the United States about the Al Mal
contract, and he told me that he was going to have an operation on
his foot and therefore would not come to the U.S., and said he did
not want to get involved at all.
Our family also has friends in Kuwait. I asked them to help
me find witnesses of the Al Mal contract, but once they found out
it was to help my husband in a criminal trial in the United States,
they told me they would not help us. I even asked Ms. Zainab
Rasouli, my husband’s secretary from the Hejrat foundation, to
contact these friends in Kuwait to help us. I hoped that they
would talk to her since she is not related to our family. However,
once these Kuwaiti people found out why she was calling they
still would not cooperate. In fact, they hung up the phone
claiming not to know my husband.
I also asked my brother-in-law, Masoud Mousavi, my
husband’s brother, who lives in Iran to go to Kuwait to try and
locate the witnesses to the Al Mal agreement. He tried for several
months prior to the trial to get a visa to go to Kuwait, but Kuwait
denied his visa and he could not assist us.
Declaration of Nahid Nabhani, attached hereto, at ¶¶ 2-5.
Consequently, access to these witnesses is not based on a lack of diligence:
A court cannot conclude that a defendant lacks diligence merely
because a defense team with unlimited time and resources might
have managed to discover the evidence sooner. Instead, mindful
of the constraints and competing pressures on the defense before
and during trial, a court asks whether it was unreasonable for the
defense to have failed to discover the evidence more promptly.
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"All that is required is ordinary diligence, not the highest degree
of diligence."
Hinkson at 1279, quoting 3Wright et al., supra, § 557, at 559-60.
C.
THE TESTIMONY OF DR. SAHIMI , DR. MARANDI, MR. AL SAGER,
AND MR. HAYAT ARE MATERIAL, NON-CUMULATIVE, AND
WOULD LIKELY HAVE RESULTED IN AN ACQUITTAL
1.
Count 6 - Purported False Statement of Mr. Mousavi not Being a Member
of the Iranian Military
On April 22, 2008, the date of closing arguments, the Court stated:
Yeah. But the problem is, again, in the indictment you said that he
lied to the FBI when he said he was serving in the military. And I
don't -- do you have some exhibit that shows that this gentleman
served in the military? The evidence that you have -- seems to me
shows that he may have been employed by the military. He may
have been working in headquarters as a civilian. He may have
been injured. That's all true. But I'm not sure that you have
anything that shows that he was actually in the military when he
suffered those injuries. He could have been a civilian employee in
the front, a bomb went off, and he got injured.
Exhibit B, RT 8/22/08, 48:10-20. (Emphasis added).
Clearly, after hearing the evidence presented by the government, the Court
believed that the evidence supporting Mr. Mousavi’s purported false statement that
he was never in the military was problematic.
The analysis of Dr. Marandi and Dr. Sahimi would have presented clear,
unequivocal evidence that Mr. Mousavi was not a member of the military.
The documents that I reviewed do not reflect that Mr.
Mousavi was part of the military. In fact, I reviewed a
document which revealed that Mr. Mousavi was exempt, as
of November 8, 1978, from military service based on pre-
existing injuries. I must point out that, since I myself was
exempted from the military service, I am familiar with the
process. Finally, a member of the Iranian military has a
specific military identification card. My understanding is
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Mr. Mousavi’s family was able to contact M. Rahmani, Ph.D., Director of
4
the Interests Section of the Islamic Republic of Iran out of the Embassyof Pakistan prior
to trial. After performing research in Iran, Dr. Rahmani provide the letters attached
hereto at Exhibit D, reflecting the fact that Mr. Mousavi was not a member, and had no
affiliation whatsoever with any and all Iranian Military institutions, the Islamic
Revolutionary Guards or any type of law enforcement agencies. Dr. Rahmani advised
the family that he would not testify in a court of law, and therefore, the hearsay letters
were inadmissible at trial.
Due to the fact that the United States and Iran do not have diplomatic relations,
there is no Embassy of Iran, and all diplomatic contacts with Iran within the United
States stemfromthe Interests Section of the Islamic RepublicofIran out of the Embassy
of Pakistan. Similarly, all diplomatic relations within Iran by the United States are
performed out of the Embassy of Switzerland.
9
that Mr. Mousavi did not have such a military identification
card.
Declaration of Dr. Sahimi, attached hereto at ¶ 3(b); also see Exhibit C, Exemption
form from the Iranian Military.
The documents I reviewed do not reflect that Mr. Mousavi was
part of the military. This is also confirmed by the letter from the
Iranian Interest Section of the Pakistani Embassy in the United
States. First, a document provided to me specifically states that
Mr. Mousavi was exempt from the military based on pre-existing
injuries as of November 8, 1978. Moreover, I was advised that
Mr. Mousavi traveled to Austria after the Iran / Iraq war to be
treated for his injuries. It is virtually impossible that the
government of Iran would permit a soldier to travel to a foreign
country for medical treatment during that time period. Finally, a
member of the Iranian military had a specific military
identification card. My understanding is that Mr. Mousavi did not
have such a military identification card.
Declaration of Dr. Marandi, attached hereto, at ¶ 3(b); also see letters of the Iranian
Interest Section at Exhibit D; and document reflecting Mr. Mousavi’s treatment in
4
Austria for medical treatment at Exhibit E.
2.
Count 5 - Fraud on Citizenship Application
Mr. Mousavi was found guilty of 18 U.S.C. § 1425 by inserting “None”
following this section on his Naturalization Application:
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It is noteworthy that Mr. Mousavi was appointed to a position in West
5
Azerbaijan, outside of the City of Ahvaz, in Khuzestan, during the Iran / Iraq war. The
fact that this father would leave his young family during this time of crisis reveals the
compulsory nature of this appointment.
“Iraq attempted to annex Khûuzestâan and Ahvaz in 1980, resulting in the
6
IranIraq War (1980-1988). Ahvaz was close to the front lines and suffered badly during
the war.”
10
List your present and past membership in or affiliation with every
organization, association, fund, foundation, party, club, society, or
similar group in the United States or in any other place. Include
any military service in this part. If none, write ‘none’. Include the
name of organization, location, dates of membership and the
nature of the organization.
In Count 5 of the Third Superseding Indictment, the government charged Mr.
Mousavi with failing to list multiple positions he held in Iran in the early 1980s
during the Iran / Iraq war, or that he was a member of the Iranian military. As
described above, expert testimony would have demonstrated that he was not part of
the Iranian military.
As for the groups which Mr. Mousavi allegedly had a “past membership in or
affiliation,” the groups listed in the Third Superseding Indictment are: the Islamic
Revolutionary Committee; Islamic Revolutionary Court as an Interrogator; the Office
of the Governor General; the Housing Foundation in the Province of Khuzestan; the
Committee for Industrial Expansion in the Province of Khuzestan; the Tribal Center
of the Province of West Azerbaijan as a Supervisor; The Office of Public Security as
5
a Director; and The Welcoming Committee for the Imame Ummat.
Both Dr. Sahimi and Dr. Marandi would testify that Mr. Mousavi was
“ordered” to participate in these groups, other than the Welcoming Committee for the
Imame Ummat. Both professors describe the history behind the conscription of
educated individuals into these groups during this time of chaos in Ahvaz, Iran,
where Mr. Mousavi was located, after the attack of Iran by Saddam Hussein’s forces
from Iraq.
6
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Wikepedia: http://en.wikipedia.org/wiki/Ahvaz.
11
I have reviewed multiple records which reveal that Mr. Mousavi
was living in the State of Ahwaz during the Iran / Iraq war in
1980-81. This was a city under siege during the Iran / Iraq war.
The Iraqi military was shooting missiles into the civilian parts of
the city and mortar fire was an every day occurrence.
Declaration of Dr. Marandi, at ¶ 3(a)
Consequently, both professors provide their educated opinions that
conscription in these groups did not reflect any ideological or political affiliation or
membership.
I have never met Mr. Mousavi, nor do I know his family, nor had I
ever heard of him before I was contacted for this declaration. But,
I believe that this request could be confusing for an Iranian
individual who was appointed to many positions after the
Revolution and during the Iran/Iraq war. To my understanding,
“affiliation” or “membership” would signify to an Iranian a formal
association with a political group, or political party. Further, the
term membership or affiliation implies a position taken by
someone who can decide on his own, and has the freedom to
choose. However, Mr. Mousavi’s positions were essentially
appointments, based on his education and qualifications, and were
implicitly mandatory – other than the welcoming committee – and
would not necessarily reflect a formal ideological affiliation or
membership.
Declaration of Dr. Sahimi at ¶ 3(g); see also Declaration of Dr. Marandi at ¶ 3(g).
Further, both professors describe that the Welcoming Committee for the
Imame Ummat was far from a from an “affiliation or membership.” Rather,
When Khomeini arrived at Tehran airport in February 1979, he
and his intimate supporters took a long route throughout Tehran to
the main cemetery. In every area people had formed welcoming
committees to show their support. This included local mosques,
businesses, schools, etc. There was, to my knowledge, no
“membership” in such groups - essentially it was a widespread,
ad-hoc mass “group” of supporters everywhere. Since it was so
widespread, it would be hard for anyone to consider himself or
herself a member of, or affiliated with, such groups. My own
brother, who was executed by the Revolutionary government in
1981, worked with one of such committees in 1979.
Declaration of Dr. Sahimi, at ¶ 3(f)(I); also see Declaration of Dr. Marandi at ¶
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In addition, the government’s expert, Dr. Mohsen Sazegara, repeatedly
7
testified at trial that Mr. Mousavi was an employee of Steel Complex in Ahvaz,Iran,and
that the positions he was appointed to were government entities, but he was still
consideredanemployee of the Steel Complex. SeeDeclaration of Ronald Kaye,attached
hereto.
12
3(f)(I).
The jury never heard this critical evidence. What the government advised the
Court was that it was not Mr. Mousavi’s purported “affiliation” or “membership” in
these groups which was material and which would thereby sustain the conviction, but
it was his failure to list them which would therefore disqualify him for citizenship:
Mr. Gaffney:
Had [the groups] been provided it would not automatically
disqualify him. It would have gone on for further review;
however, having not disclosed it, that lying on the application
about membership in those organizations is automatic
disqualification, and his testimony would be that all of the
questions on the N 400,which is the application for naturalization,
material questions matter in the decisions that the INS makes.
They matter.
Exhibit F, RT 8/22/08, 18:3-11.
Dr. Sahimi and Dr. Marandi’s testimony would have demonstrated to the jury
that it was completely reasonable for an Iranian American, during this time of the
country’s history, ordered to take government positions by the newly formed
7
Revolutionary government which was being attacked by Iraq, to not consider such
positions “affiliations or memberships.” Therefore, substantial evidence would have
revealed that Mr. Mousavi acted in good faith when he entered “none” for past
“affiliations” or “memberships.”
There was no evidence at trial which would have contradicted this position.
Therefore, the introduction of this non-cumulative, material evidence would have
supported an acquittal on Count 5.
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The relevant “Penalties” subsection, 50 U.S.C. § 1705(b), applies only to
8
an individual who “willfully violates, or willfully attempts to violate” any regulation
issuedunder thatchapter. Id. Thisrequirement has beenrepeatedlyinterpretedbycourts
in analogous cases to require the government to prove that Mr. Mousavi “knew
specifically that indirect exports to Iran (i.e. shipment through a middleman in a third
country) were illegal.” United States v. Quinn, 403 F.Supp.2d 57, 64 (D.D.C. 2005);
United States v. Homa Intern. Trading Corp., 387 F.3d 144, 147 (2 Cir. 2004)(holding
nd
that to establish liability under the Embargo the government must prove that “the
defendant acted with knowledge that his conduct was unlawful”); United States v.
Hescorp, Heave Equipment SalesCorp. 801 F.2d 70,77 (2 Cir.1988)(“...thecrime with
nd
which [defendant] was charged is one of specific intent...the government would have
been required to prove that [defendant] specifically intended to violate the Iranian
Embargo Regulations.”]; United States v. Anvari-Hamedani, 378 F.Supp.2d 821, 830
13
3.
Counts 3 and 4
Counts 3 and 4 stem from the contract between Mr. Mousavi and the Al Mal
Kuwaiti Company to: a) bid for a GSM license (Global System for Mobile
Communications - cellular telephones) with Al Mal Kuwaiti Company jointly with
Iran Electronic Development Company; and b) to help establish a bank and leasing
company in Iran for this purpose. See Exhibit A.
The declarations of Dr. Sahimi and Marandi establish that the creation of this
GSM license and the creation of the bank and leasing company were impossible
ventures in 2002, because these fields were completely controlled by the Iranian
government and there was no private entrepreneurial involvement in these fields. See
Declaration of Dr. Sahimi at ¶ 2(d); Declaration of Dr. Marandi at ¶¶ 2(b) & (c). The
fact that this contract did not materialize is unequivocally confirmed by percipient
witnesses of the events surrounding this contract: Mr. Al Sager and Mr. Hayat. See
Declaration of Mr. Al Sager at ¶ 5; Declaration of Mr. Hayat at ¶ 6.
Even though no work was ever performed pursuant to the contract, the
substance of the contract was impossible, and the contract did not deal directly with
an Iranian entity, but with a Kuwait company, the government maintained at trial
that Mr. Mousavi knowingly violated the Embargo between the United States and
Iran. There was no evidence that Mr. Mousavi ever received direct notice from the
8
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(N.D. Ohio 2005)(holding that 50 U.S.C. § 1705(b) has a scienter requirement).
14
government or any other party about this prohibition; and there was no evidence that
this was common knowledge within the Iranian community. The only evidence
stated by the government in its closing argument purported supporting Mr. Mousavi’s
knowledge that this contract was prohibited by the Embargo was argued by
government counsel as:
Did he know that entering into this contract was illegal? Providing
services to an -- Iran or the government of Iran through a third-
party company in Kuwait was illegal? . . .Why not just report the
$45,000? He couldn't, ladies and gentlemen. He couldn't report
that money. If he reported the money, then the Government knows
where it's coming from. And if he reports that money and the
Government knows where it's coming from, then we know he's
doing business with Iran through a third company and he has not
gotten the Government's permission to do it. It's the fact that he
intentionally withheld reporting that money that is a
consciousness of guilt.
Exhibit F, RT 4/22/08, 73:6-22.
First, the Declarations of Mr. Al Sager and Mr. Hayat reveal that this so-called
“smoking gun” of failing to report income, was not income at all. Rather, it was
advances to Mr. Mousavi on the contract. However, once the contract was
completely abandoned and no work occurred, the payment of$ 45,040 openly wired
to Mr. Mousavi’s U.S. bank account was not income, but was considered personal
loan. Advances which ultimately became personal loans are not income, and do not
require reporting on his federal income tax. This new evidence from Mr. Al Sager
and Mr. Hayat, which directly contradicts the government’s only evidence of specific
intent, is material and in and of itself would render an acquittal on counts 3 and 4.
Moreover, Mr. Al Sager specifically states in his declaration that:
there was no discussion between Mr. Mousavi and myself
whatsoever about the United States Embargo with Iran at that
time, or at any other time. I do not believe anyone from the Al
Mal staff discussed the issue of the United States Embargo.
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Dr. Sahimi also refers in his declaration his assistance to Dr. Shirin Ebadi,
9
an Iranian Judge and winner of the 2003 Nobel Peace Prize, in publishing her memoirs
in 2004. He describes the fact that he and Dr. Ebadi were unaware of any impact the
Embargo would have on this publication, but was later informed by that publishing the
memoirs would violate the Embargo with the United States. This resulted in a lawsuit
in federal court which triggered a change in the guidelines by the Treasury Department
reflecting violations of the Embargo withregardtoIntellectual Property. SeeDeclaration
15
Declaration of Al Sager at ¶ 3,
But in addition, the testimony of Dr. Sahimi and Dr. Marandi would provide
the jury with the only evidence reflecting the lack of knowledge within the Iranian
community concerning the Embargo, particularly reflecting a GSM contract with a
Kuwaiti company, and therefore, the unlikelihood of Mr. Mousavi having such
knowledge.
The laws governing the Embargo and sanctions imposed on Iran
by the United States were (and still are to some extent), to my
knowledge, confusing to Iranian individuals living in the United
States. From my experience, while Iranians living in the United
States knew there was an Embargo, they did not know the exact
extent of it. Let me point out that up until 1995 the United States
had commercial dealings with Iran, including buying several
hundreds of thousands of barrels of oil a day from Iran. In 1995
the Clinton Administration imposed the Embargo in order to
prevent an oil contract between the American company Conoco
and Iran. To my knowledge, many Iranians, including academics
and business persons, thought these were sanctions regarding the
import of oil, or investment in Iran’s oil industry. Then, in April
2000, after the Iranian reformers won several important elections
in Iran and came into power, the Clinton Administration lifted part
of the Embargo. In my opinion, the effort to relax the Embargo
added to the confusion for many Iranians in the United States,
because they were not clear on what was and was not sanctioned. .
. .
The fact that a third party was the contracting party, and that the
transaction was not directly with Iran but with a Kuwaiti
company, make it more complex and, in my opinion, less likely
that even a sophisticated businessman would know that such
actions violated the Embargo. In my opinion, it would be
unreasonable to assume that a typical Iranian would be aware that
facilitating a contract on something as harmless as cellular
telephones with a Kuwaiti Company with the intended access area
being Iran would violate the Embargo.
Declaration of Dr. Sahimi at ¶¶ 2(a) & (c), see also ¶¶ 2(b), (d), (e) and (f).
9
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of Dr. Sahimi at ¶ 2(b).
In thegovernment’s Second Supplemental Opposition to Defendant’s Rule
10
29 Motion Re Third Superseding Indictment, the government argues for the first time
that Mr. Mousavi’s use of his Iranian passport to enter Iran, and his failure to flydirectly
to Iran purportedly demonstrate his efforts to conceal his activities on the Al Mal
contract. As demonstrated by the Declarations of Dr. Sahimi and Dr. Marandi, such
arguments are ludicrous. Based on the U.S. State Department’s own guidelines, a U.S.
citizen could not use his American passport to travel to Iran, and could not return to the
United States with an Iranian passport. See Declarations of Dr. Sahimi at ¶ 2(e) and Dr.
Marandi at ¶ 2(d); see also the U.S. State Department web site:
http://travel.state.gov/travel/cis_pa_tw/cis/cis_1142.html.
Moreover, there was no direct flight from the United States to Iran in 2002. See
Declaration of Dr. Sahimi at ¶ 2(f).
16
I myself, as an American citizen and a scholar on American
society, was not aware of the extent of the sanctions in 2002.
There was no outreach to the American, Iranian community, nor in
Iran about what could or could not be sent to Iran, or what
business was prohibited. It was a common belief among many
Iranians in the U.S. that only war related materials were
prohibited. I also would add that American Iranians routinely sent
money, including by bank wires, to their relatives during this time
period, and that added to the general belief that all financial
dealings were not prohibited.
Declaration of Dr. Marandi at ¶ 2(a).
Other than the speculation about the efforts by Mr. Mousavi to “hide” $45,040
openly wired to his U.S. bank account – money that was not income but considered a
loan – the government provided no evidence to the jury of Mr. Mousavi’s knowledge
that he purportedly violated the Embargo with Iran. The testimony of Dr. Sahimi
10
and Marandi would have clarified what was the extent of the knowledge of the
Embargo within the Iranian American community, and would have revealed that the
government did not, nor could not prove that Mr. Mousavi had the requisite specific
intent.
4. Count 1
As demonstrated above, the Declarations of Mr. Abdul Mohsen Hayat and Mr.
Mohammad Al Sager reveal that the $45,040 was not income, and therefore, there
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17
was no responsibility for Mr. Mousavi to pay taxes. This evidence would have fully
undermined the only argument made by the government at trial supporting Mr.
Mousavi’s specific intent, and therefore, would have resulted in an acquittal.
III.
CONCLUSION
Prior to trial, Mr. Mousavi’s family took great efforts to obtain an expert on
Iranian history and society who would testify to the jury that Mr. Mousavi’s
connection to the Iranian positions and groups listed in the Third Superseding
Indictment would not be considered an “affiliation” or a “membership,” and that he
was not part of the Iranian military, the subjects of counts 5 and 6. Moreover, the
family use all the resources it had available to defend Mr. Mousavi against counts 3
and 4, by securing the testimony of percipient witnesses from the Al Mal Kuwaiti
company to describe to the jury the circumstances surrounding the contract between
Mr. Mousavi and Al Mal Kuwaiti Company in 2002. Unfortunately, all the witnesses
contacted that could provide relevant testimony either ignored the family’s requests
or refused to cooperate.
After the verdict, the family continued its relentless effort to prove Mr.
Mousavi’s innocence, and was able to obtain the testimony of Dr. Sahimi, Dr.
Marandi, Mr. Al Sager, and Mr. Hayat. The testimony of these individuals, reflected
in their sworn declarations, satisfies the standard under Rule 33 of the Federal Rules
of Criminal Procedure.
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Based on this newly discovered evidence, Mr. Mousavi request that this Court
grant him a new trial under counts 1, 3, 4, 5 and 6 of the Third Superseding
Indictment.
Respectfully submitted,
KAYE, McLANE & BEDNARSKI, LLP
DATED: September 15, 2008
By
/S/
RONALD O. KAYE
Attorney for Defendant
Seyed Mahmood Mousavi