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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

Hearing Date: October 6, 2008

Hearing Time: 8:30 a.m.

Defendant SEYED MAHMOOD MOUSAVI, by and through his counsel of

record, Ronald O. Kaye, hereby files this Reply to the government’s Opposition to

Defendant’s Motion for New Trial.

Respectfully submitted,

KAYE, McLANE & BEDNARSKI, LLP

DATED: October 3, 2008

By

/S/

RONALD O. KAYE

Attorney for Defendant

Seyed Mahmood Mousavi

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Local Rule 7-9 states:

Each opposing party shall, not later than ten (10) days after

service of the motion in the instance of a new trial motion and not

later than fourteen (14) days before the date designated for the

hearing of the motion in all other instances, serve upon all other

parties and file with the Clerk either (a) the evidence upon which

the opposing party will rely in opposition to the motion and a brief

but complete memorandum which shall contain a statement of all

the reasons in opposition thereto and the points and authorities

upon which the opposing party will rely, or (b) a written statement

that that party will not oppose the motion.

Defense counsel filed Mr. Mousavi’s Motion for New Trial on September 15,

2008 – three weeks prior to the sentencing in this case. Under local rule 7-9, the

government shall file its Opposition 10 days following that service – or September

25, 2008. The government has filed its motion, with no application for leave from the

Court, on October 2, 2008, two court days prior to hearing on the Motion. Thus, the

government has left defense counsel with one day to file this Reply, in order for the

Court to have access to this pleading the Friday before Monday’s hearing.

Based on the blatant disregard for the local rules, the defense requests that the

Court Strike the government’s Opposition.

The Court may decline to consider any memorandum or other

paper not filed within the deadline set by order or local rule. The

failure to file any required paper, or the failure to file it within the

deadline, may be deemed consent to the granting or denial of the

motion.

Local Rule 7-12.

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There is no evidence whatsoever that Mr. Al Sager and Mr. Hayat’s testimony

was known to the defense prior to their cooperation in August / September 2008. As

demonstrated in the September 15, 2008 Declarations of Nahab Nabhani – Mr.

Mousavi’s wife, and Zeinab Mousavi – Mr. Mousavi’s daughter, attached to the

Motion for New Trial, there was no contact with Mr. Al Sager, until August /

September 2008, and consequently, there was no knowledge of what his testimony

would be.

With regard to Mr. Hayat, Ms. Nabhani stated in her September 15, 2008

declaration that Mr. Hayat advised her that he would not assist Mr. Mousavi in his

trial in the United States. But with regard to the content of the contract, Mr. Hayat

specifically told Ms. Nabhani that he did not recall the specifics of that contract. See

October 2, 2008 Declaration of Nahab Nabhani, attached hereto. It was not until Ms.

Nabhani traveled to Kuwait in September of 2008 that Mr. Hayat advised her that: 1)

the payments by Al Mal Kuwaiti Company consisted of advances to Mr. Mousavi,

not payment for services rendered; and 2) due to the fact that the contract never

materialized, the payments were considered a loan to Mr. Mousavi.

Thus, the testimony of both Mr. Al Sager and Mr. Hayat, reflected in their

declarations, was not only unavailable to the defense prior to trial, it is newly

discovered evidence.

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Finally, the government states that Mr. Al Sager and Mr. Hayat’s testimony is

not newly discovered because Mr. Mousavi could have testified to the same facts at

trial. Other than the allusion to this purported rule of law in a 27 year old case from

the Fifth Circuit cited by the government, United States v. Metz, 652 F.2d, 478, 480

(5 Cir. 1981), there is no other published decision, let alone one from the Ninth

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Circuit, that holds that factual testimony from witnesses is not newly discovered if the

defendant could have testified to the same facts at trial. It is untenable that Mr.

Mousavi must waive his Fifth Amendment privilege against self incrimination to

present this testimony. To prejudice a defendant, or impose an evidentiary burden on

him, for not testifying is contrary to long standing precedent supporting the

defendant’s right against self incrimination. See Griffin v. California, 380 U.S. 609,

615 (1965) (it is reversible error for the government to comment in closing argument

on a defendant’s decision not to testify during trial); see also, 18 U.S.C. § 3481

(failure of the accused to testify in federal trial shall not create a presumption against

him). Mr. Mousavi’s potential testimony on this issue cannot be a condition

precedent to whether this information is newly discovered.

Repeatedly, the government claims that the testimony of Mr. Al-Sager and Mr.

Hayat, would not be admissible at trial, because neither have agreed to testify in

court. Mr. Al-Sager and Mr. Hayat, however, do not state that they will not provide

this critical testimony from Kuwait – but rather, they decline to come to the United

States because of the demands on their schedules and the fact that they live over

10,000 miles away.

Defense counsel agrees that mere declarations will not suffice at trial, but for

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purposes of this motion (and the Sentencing Position), the Court should consider the

declarations of these highly reputable witnesses. It is the intention of defense counsel

to either take the deposition of Mr. Al-Sager and Mr. Hayat by way of a live video

feed, or to travel to Kuwait for their depositions. If these witnesses will not cooperate

and testify in these proposed depositions, then of course their testimony will not be

considered for purposes of a new trial.

It is well settled that in a criminal case a district court may order that a

prospective witness be deposed when it is in the interests of justice to do so. Rule 15

of the Federal Rules of Criminal Procedure provides that:

A party may move that a prospective witness be deposed in order to

preserve testimony for trial. The court may grant the motion because of

exceptional circumstances and in the interest of justice. . .

When a deposition is requested, the relevant factors for a court to consider are

the availability of the witnesses, whether a good faith effort has been made to obtain

their presence at trial, whether their testimony is favorable and whether the witnesses

would be available for the deposition. United States v. Zuno-Arce, 44 F.3d 1420,

1425 (9 Cir. 1995). (See also Farfan-Carreon, 935 F.2d at 679-80, the relevant

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factors are whether the witness’ testimony is material, the witness is beyond the

Court’s subpoena power; and it is unlikely that the witness will voluntarily appear for

trial.) While such a showing is sufficient, it is not necessary. “Rule 15(a) does not

require any conclusive showing of ‘unavailability’ or ‘material testimony’ before a

deposition can be taken in a criminal case. United States v. Omene, 143 F.3d 1167,

1170 (9 Cir. 1998) See also United States v. Sines, 761 F.2d 1434, 1439 (9 Cir.

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1985).

A witness residing in Kuwait cannot be compelled to appear at trial in the

United States. See United States v. Dragoul, 1 F.3d 1546 (11 Cir. 1993) (potential

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deponents were unlikely to be available to testify at trial because they were foreign

nationals living abroad, beyond the subpoena power of the district court.)

Mr. Al Sager and Mr. Hayat live in Kuwait and the United States has no

subpoena power over them. Further, they are unwilling to come to the United States

and testify – thus, they are clearly unavailable.

As demonstrated in the declarations of Zeinab Mousavi and Nahid Nabhani,

attached to the Motion for New Trial, from the “very beginning, after [her] husband

was arrested,” tremendous effort was taken to obtain the testimony of Mr. Al Sager

and Mr. Hayat. September 15, 2008 Declaration of Ms. Nabhani at ¶ 2. This

consisted of using contacts in London, enlisting the assistance of family members in

Iran, and a relentless effort to contact these men by e-mail and telephone. Id. at ¶¶ 3-

5; Declaration of Zeinab Mousavi at ¶¶4-5. Although the family knew the identity of

Mr. Al Sager and Mr. Hayat, they did not have access to the testimony presented in

their declarations until August - September of 2008. This testimony was not

“known” by the defense – it was unclear whether Mr. Al Sager or Mr. Hayat had a

clear recollection of these events and could provide testimony to assist Mr. Mousavi

at trial.

Ultimately, in September of 2008, Zeinab Mousavi was able to make contact

with Mr. Al Sager and Mr. Hayat, and as a result of that contact, Ms. Nabhani

traveled to Kuwait and secured the cooperation of these witnesses. Declaration of

Zeinab Mousavi at ¶ 5, September 15, 2008 Declaration of Nahab Nabhani at ¶ 6. It

is difficult to imagine a more committed or diligent effort to obtain exculpatory

witnesses.

For the government to claim that Ms. Mousavi and Ms. Nabhani’s description

of their efforts to obtain this testimony is incredible is itself disingenuous. See

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Opposition at n. 3. As their declarations demonstrate, no matter how diligently they

tried, they did not obtain the testimony of these witnesses until after trial – in August

/ September of 2008.

Ms. Mousavi and Ms. Nabhani will be at the hearing on October 6, 2008, and

they will be available to answer the questions of the Court or the government

reflecting their efforts to obtain the testimony of these witnesses.

As described at length Mr. Mousavi’s Motion for New Trial, the only evidence

which the government argued at trial which demonstrated Mr. Mousavi’s knowledge

of the Embargo prohibiting his consulting agreement with the Al Mal Kuwaiti

company was the failure of Mr. Mousavi to pay taxes on the $45,040.00 wired to him

by Al Mal Kuwaiti. See Exhibit F to Motion for New Trial, RT 4/22/08, 73:6-22. In

the Motion for New Trial the defense has never focused whether the contract was

prohibited. The sole focus of this new testimony is on Mr. Mousavi’s lack of

knowledge that his consulting contract with Al Mal Kuwaiti Company was illegal.

Mr. Hayat and Mr. Al Sager’s testimony demonstrates that these payments

were not for income, and Mr. Hayat adds further that these funds were ultimately

considered to be a loan. Thus, Mr. Mousavi had no obligation to pay income taxes on

these funds, thereby undermining the government’s sole basis for proving specific

intent. Mr. Al Sager’s also states that there was no discussion between he and Mr.

Mousavi, or to his knowledge, between Mr. Mousavi and anyone in his company,

about the Embargo, further supporting a no knowledge defense. Declaration of Al

Sager at ¶ 3.

This evidence would not only be “beneficial” to the defense, it would have

completely rebutted the government’s only evidence showing the critical element of

knowledge in this specific intent crime. It’s impact on the jury cannot be ignored.

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Finally, the government, without meeting the witnesses, cavalierly suggests

that the declarations of Mr. Al Sager and Mr. Hayat are incredible. Opp. at p. 7. The

defense asks: would men of this stature – Mr. Al Sager is the President of the Arab

Parliament and Mr. Hayat is a high level businessman in Kuwait – who are not

friends of Mr. Mousavi, go to this effort and blatantly lie to a court of law?

Moreover, as highlighted by the government in note 2 of its Opposition, Mr. Al

Sager leaves out substantial information about the transaction which would have

made his declaration more complete, and more helpful to the defense. Noticeably,

unlike Mr. Hayat, Mr. Al Sager had no information that the payments resulted in a

loan to Mr. Mousavi. If their goal was only to help Mr. Mousavi and not to speak the

truth, they easily could have been much more expansive in their declarations.

These men have sworn under penalty of perjury to the testimony contained in

their declarations. These declarations have all the indicia of reliability and should be

accepted as truth by the Court. Hopefully, when exculpatory testimony from highly

respected individuals is uncovered to support a United States citizen abroad, it is not

summarily dismissed by a court in that foreign nation in a similar fashion.

The defense has every reason to believe that these witnesses will testify at a

deposition in Kuwait. At that time, the government will have its opportunity to cross-

examine them. It should save its unsubstantiated critique of their testimony for its

examination during the deposition.

In its attempt to prove the requisite element of wilful intent for Counts Three

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Mr. Mousavi stipulates that the ultimate statements in the proposed expert’s

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declarations which do opine about Mr. Mousavi’s likely personal knowledge with regard

to the Embargo are inadmissible at trial and would be properly excluded. These opinions,

however, can be considered for purposes of sentencing.

Throughout the trial in this case, over the defense’s objection, the

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government’s export control expert, Mr. Sens, repeatedly was permitted to opine whether

the conduct of Mr. Mousavi, including the actual contract with the third party – Al Mal

Kuwaiti Company – violated the Embargo and was in violation of the law.

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and Four, the government has previously argued to the Court:

...that defendant Mousavi grew up in Iran and held various high-

level positions while working in Iran. The government also

proved that defendant Mousavi continued to travel to Iran after he

moved to the United States and still has family and contacts in

Iran. The government also proved that the United States imposed

a comprehensive ban against trade with Iran starting shortly after

the Iranian hostage crisis, including during a significant period of

time that defendant Mousavi lived and worked in Iran. Thus, it

was reasonable for the jury to infer that a man of defendant

Mousavi’s stature, background, and with his personal professional

history, would be well aware of the comprehensive trade embargo

imposed against Iran, his country of origin.

See, Government’s Second Supplemental Opposition to Defendant’s Rule 29 Motion

Re: Third Superseding Indictment, CR 165, at p.5.

The government now contends that the testimony of Dr. Sahimi and Dr.

Marandi, available for the first time to the defense to rebut the same, is inadmissible

under FRE 704(b). This is incorrect. Dr. Sahimi and Dr. Marandi are permitted to

testify about the state of the knowledge of the embargo within the Iranian community,

including that of sophisticated businessmen. To exclude the proposed expert

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testimony under Rule 704(b), this Court would have to conclude that the experts have

stated an opinion or drawn an inference which would necessarily compel the

conclusion that Mr. Mousavi did not violate the Embargo willfully. This is not the

content of the proposed testimony.

Generally, experts may testify as to their opinions on ultimate issues to be

decided by the trier of fact. See Fed.R.Evid. 704(a). However, Rule 704(b) makes a

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limited exception to this general rule in criminal cases, precluding expert opinion on

mental state.

The “rationale for precluding ultimate opinion testimony applies ... ‘to any

ultimate mental state of the defendant that is relevant to the legal conclusion sought to

be proven.’ ” United States v. Campos, 217 F.3d 707, 711 (9th Cir.2000) (quoting S.

Rep. 98-225 at 231). However, Rule 704(b) allows expert testimony on a defendant's

mental state so long as the expert does not draw the ultimate inference or conclusion

for the jury. United States v. Morales, 108 F.3d 1031, 1037-38 (9 Cir. 1997). It is,

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therefore, essential to distinguish between expert opinions that “necessarily compel” a

conclusion about the defendant's mens rea – which are prohibited – and those, such as

the testimony of Dr. Sahimi and Dr. Marandi, that do not and are therefore

admissible.

In Morales, the Ninth Circuit concluded that the district court erred in barring

expert testimony under Rule 704(b) because the expert's testimony did not compel the

conclusion that Morales lacked the mens rea for the crime. Morales, charged with

willfully making false bookkeeping entries, wanted an accounting expert to testify

that her “understanding of accounting principles” was “weak.” Id. at 1037. The

Ninth Circuit stated:

Even if the jury believed [the] expert testimony that Morales had a

weak grasp of bookkeeping knowledge (and there was evidence to

the contrary), the jury would still have had to draw its own

inference from that predicate testimony to answer the ultimate

factual question – whether Morales willfully made false entries.

Morales could have had a weak grasp of bookkeeping principles

and still knowingly made false entries.

Id. at 1037.

In Morales, the Ninth Circuit also cited with approval United States v. Rahm,

993 F.2d 1405 (9 Cir. 1993), where the defendant was charged with attempting to

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knowingly pass counterfeit currency. Rahm, 993 F.2d at 1408. The district court

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excluded the testimony of a defense expert who was going to testify that the

defendant had poor visual perception and consistently overlooked important visual

details. Id. at 1409. This testimony was offered to bolster the defendant's sole defense

that she did not know the money was counterfeit. Id. The Ninth Circuit reversed her

conviction on the ground that the district court improperly excluded the proffered

expert testimony. Id. at 1408. The Court noted that under Rule 704(b) the expert was

prohibited from expressing an opinion as to the defendant's mens rea – whether she

knew the bills were counterfeit. Id. at 1411 n. 3. It drew a distinction, however,

between this ultimate issue testimony and the proffered testimony of the defendant's

poor vision, from which the jury could, but was not compelled, to infer that she did

not know the bills were counterfeit. Id. at 1411-12.

Similarly in United States v. Gomez-Norena, 908 F.2d 497 (9 Cir. 1990) the

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Ninth Circuit upheld the admission of a DEA agent's testimony that in his opinion the

possession of $200,000 worth of cocaine was consistent with an intent to distribute

rather than with possession for personal use. Gomez-Norena, 908 F.2d at 502. The

Court upheld admission of this testimony because “[a]t no time did [the DEA agent]

give his opinion of what [the defendant] actually thought.” Id. Although clearly the

prosecution presented this testimony hoping the jury would infer the requisite mens

rea – the defendant's intent to distribute, but the testimony did not compel that

inference. See also United States v. Kinsey, 843 F.2d 383, 388-89 (9th Cir.), cert.

denied, 488 U.S. 836, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988). United States v. Richard,

969 F.2d 849, 854-55 (10 Cir. 1992)(“The rule does not prevent the expert from

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testifying to facts or opinions from which the jury could conclude or infer the

defendant had the requisite mental state.”); United States v. Foster, 939 F.2d 445, 454

(7th Cir.1991) (testimony “merely assisted the jury in coming to a conclusion as to

[defendant's] mental state; it did not make that conclusion for them”); United States v.

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Dunn, 846 F.2d 761, 762 (D.C.Cir.1988) ( “It is only as to the last step in the

inferential process-a conclusion as to the defendant's actual mental state-that Rule

704(b) commands the expert to be silent.”).

In light of the above standard for admissibility under FRE 704(b), the

government curiously takes issue with the proposed experts’ statements regarding

“typical Iranians” asserting that “[f]irst, as was established at trial, defendant Mousavi

was not a “typical Iranian.’” See Opp. at p. 8. It is precisely the fact that

notwithstanding the proposed expert testimony the jury could still agree with the

government that Mr. Mousavi was atypical, however, that makes their testimony

admissible.

For example, in United States v. Gonzales, 307 F.3d 906 (9 Cir. 2002), an

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agent testified that the particular amount of drugs found on a person indicated

whether such an individual possessed the drugs for personal use or for distribution.

The Court upheld the admission of the expert testimony:

[The agent] never directly and unequivocally testified to

Gonzales's mental state; he never stated directly that Gonzales had

the intent to distribute. Rather, he indicated his firm conviction

that a “person” possessing the evidence in question would, in fact,

possess the drugs for the purpose of distributing. Even if the jury

believed the expert's testimony, the jury could have concluded that

Gonzales was not a typical or representative person, who

possessed the drugs and drug paraphernalia involved. In other

words, it could be concluded that, although a typical person might

have had the requisite purpose or intent, Gonzales was atypical

and did not.

Id. at 911-912 (emphasis added)(citations omitted); See also, United States v. Lua,

230 F.3d 1368 (9 Cir. 2000)(upholding an agent’s testimony holding that

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they“...made clear that he used his extensive experience to give his opinion about

what was ‘typical’ and his view that drug couriers typically know of their payload.”)

In this case, the proposed expert testimony of Dr. Sahimi and Dr. Marandi

concerning the lack knowledge of the Embargo by Iranians in general does not

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The government once again resorts to the unsubstantiated position that Dr.

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Sahimi and Dr. Marandi are “not credible.” Opp. at 9. Dr. Marandi will not be available

at the hearing on October 6 , but Dr. Sahimi and Mr. Boozari, who also provided his

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declaration to the Court on these issues, will be available to answer the Court’s or the

government’s questions.

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necessarily compel the conclusion that Mr. Mousavi was unaware.

Finally, the government argues that “...since presumably defendant was well

aware of his own mental state, this information is not ‘new’ and he could have

testified about these facts.” Gov. Opp. at p. 8. In addition to the inherent Fifth

Amendment problems with this argument as set forth above, it again misapprehends

the relevant standard for admissibility under FRE 704(b). Under 704(b) the proposed

experts would be expressly prohibited from testifying as to Mr. Mousavi’s mental

state. Therefore, the substance of the proposed expert testimony is not coextensive

with and duplicative of any testimony Mr. Mousavi may have given had he not

exercised his right to not testify at trial.

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The government makes several arguments with respect to the admissibility

of various statements made by the proposed experts on the Counts related to

immigration and obstruction. First, the government complains that the proposed

experts purport to testify on the reasonableness of Mr. Mousavi’s omission of various

organizations on his citizenship application “[d]espite no personal knowledge of the

defendant Mouavi” and the fact that “[n]either of the proffered experts have met

defendant Mousavi, nor do they have any first hand experience with him.” See, Gov.

Opp. at pp. 10-12. This argument is particularly out of place given the fact that this

testimony rebuts the government’s own Iranian history and cultural expert, Dr.

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Sazegara, who testified at trial, and clearly had no “personal knowledge” of Mr.

Mousavi. Moreover, as above, it is the fact that the proposed experts are not

testifying about Mr. Mousavi’s personal knowledge, rather as experts on Iranian

history and Iranian cultural norms in general, that makes their testimony admissible.

The case relied primarily relied upon by the government, United States v.

Verduzco, 373 F.3d 1022 (9 Cir. 2004) is distinguishable and inapposite.

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Specifically, the district court in Verduzco excluded the testimony “primarily” as a

sanction for the defendant’s discovery violation under Fed.R.Crim.P 16. Id. at 1032.

Additionally, the Court found “huge 403 problems” related to the lose connection

between the defendant’s subjective fear of police and the proposed expert’s testimony

regarding Tijuana drug culture. Most importantly, the court determined :

...that generalized “cultural stereotyping” testimony on Tijuana

would be unhelpful because Verduzco had graduated from a

United States high school, had lived in the United States for at

least two years prior to the arrest, spoke English, had a sister

caring for him in the United States, and worked for a United States

corporation. The court hypothesized that the testimony might be

helpful if the defendant had a green card and had not been

educated in the United States. Here, by contrast, the defendant was

experienced in American life, and thus the testimony would have

less relevance.

Id. at 1033.

This clearly not a concern for the government in this case where it consistently

emphasizes Mr. Mousavi’s close connection to Iran, his travels to Iran, his education

and business in Iran, and his family in Iran. Moreover, Mr. Mousavi’s responses to

“memberships” and “affiliations” on his citizenship application relate specifically,

and unequivocally, to what positions he held and what organizations he belonged to

during the early 1980s in Iran – the era of the Iranian Revolution and the Iran / Iraq

war. The expert testimony of Dr. Sahimi and Dr. Marandi, now supported by Mr.

Boozari, provide the jury with new information about the history of Iran and the

Iranian culture, which would bring light to Mr. Mousavi’s decision to write “none.”

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Based on expert testimony, the jury would have understood that Mr. Mousavi

reasonably did not consider these positions or groups “memberships” or

“affiliations.”

This testimony would not be a substitute for Mr. Mousavi’s thoughts and

intentions, but rather, would have educated the jury about a time in Iranian history

fundamentally relevant to determining whether Mr. Mousavi was telling the truth

when he put down “none” on his citizenship application. This Court, and the jury,

were unaware that Mr. Mousavi did not voluntarily, based on any type of ideological

or political affiliation, join the groups at issue, but was forced by the Revolutionary

government to take these positions during the Iran / Iraq war. Such critical

information was necessary to give the jury the true background behind Mr. Mousavi’s

decisions in filling out his citizenship application.

Based on the 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: October 3, 2008

By

/S/

RONALD O. KAYE

Attorney for Defendant

Seyed Mahmood Mousavi