Sentencing Position

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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

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,

SEYED MAHMOOD MOUSAVI,

Defendant.

)

NO. CR 07-513(C)-PA

DEFENDANT’S POSITION RE:

SENTENCING

[FILED CONCURRENTLY

WITH SUPPORTING

DECLARATIONS AND

EXHIBITS]

Date: October 6, 2008

Time: 8:30 a.m.

Court: Hon. Percy Anderson

The defendant, Seyed Mahmood Mousavi, by and through his attorney of

record, Ronald O. Kaye, hereby submits the following position paper with respect to

sentencing factors.

Respectfully submitted,

KAYE, McLANE & BEDNARSKI, LLP

DATED: September 22, 2008

/S/

RONALD O. KAYE

Attorney for Defendant

Seyed Mahmood Mousavi

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TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

MR. MOUSAVI’S BACKGROUND AND GOOD WORKS WITHIN

THE COMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

FAMILY BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

COMMITMENT TO THE COMMUNITY – THE CREATION

OF THE HEJRAT FOUNDATION . . . . . . . . . . . . . . . . . . . . . . . 8

SENTENCING GUIDELINE ARGUMENTS . . . . . . . . . . . . . . . . . . . 14

THE OFFENSE LEVEL RECOMMENDED BY THE

GOVERNMENT AND PROBATION IS FAR OUTSIDE THE

RANGE OF SENTENCES WHICH MR. MOUSAVI’S

CONVICTION ON COUNTS 3 AND 4 WARRANTS . . . . . . 14

AN OVERVIEW OF SIMILAR CASES PROSECUTED IN

THE UNITED STATES REVEALS THE TRANSPARENT

DISPARITY IN SENTENCE REQUESTED BY THE

GOVERNMENT AND RECOMMENDED BY THE

PROBATION OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . 18

THE GOVERNMENT SUFFERED NO TAX LOSS IN THIS

CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

MR. MOUSAVI SHOULD NOT RECEIVE A TWO LEVEL

ENHANCEMENT FOR OBSTRUCTION OF JUSTICE . . . . . 28

THE POSSIBLE COLLATERAL CONSEQUENCES OF MR.

MOUSAVI’S CONVICTION – REVOKING HIS CITIZENSHIP30

EVIDENCE OF INNOCENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

COUNTS 3 AND 4, VIOLATIONS OF THE EMBARGO WITH

IRAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

COUNTS 5 AND 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

LACK OF MEMBERSHIP IN THE IRANIAN MILITAR3Y5

LACK OF “MEMBERSHIP” OR “AFFILIATION” IN

THE GROUPS OR POSITIONS STATED IN COUNT 5

OF THE INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . 37

COUNT 2 - IMPEDING THE ADMINISTRATION OF TAX . 41

MR. MOUSAVI RECEIVED NO INCOME FROM THE

HAJJ CARAVAN SERVICES . . . . . . . . . . . . . . . . . . . . 41

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THE HAJJ WAS RELATED BUSINESS INCOME TO

THE EXEMPT PURPOSE OF THE HEJRAT

FOUNDATION AND THEREFORE IS EXEMPT FROM

ANY INCOME TAX FOR THIS PURPOSE . . . . . . . . . 42

COUNT 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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The defense has filed a motion for a new trial under Rule 33 of the

Federal Rules of Criminal Procedure based on newly discovered evidence.

INTRODUCTION

Before the Court is a 49 year man who the probation office recommends

imprisoning for 70 to 87 months. The government requests an even greater sentence:

mid-to-high end within the range of 87-108 months, based on purported obstruction

of justice. In addition, despite Mr. Mousavi living 24 years in the United States,

raising a family and contributing greatly to his community, the government requests

that the Court revoke his citizenship, and exile him from this country.

As demonstrated in the letters filed with the Court and the Social history and

Assessment, filed concurrently with this position at Exhibit A, Mr. Mousavi is not a

criminal; he is a decent, hard-working, devout Muslim who has raised four

upstanding children. Further, while in the United States, Mr. Mousavi’s life mission

has been to care for his family and to help the Muslim community in Southern

California, particularly the youth in this region, retain their religion and culture, stay

away from anti-social behavior, and be productive members of the United States.

The defense objects to the guideline range in the PSR and the recommendation

of the government. These guideline ranges do not reflect the actual facts of this case,

are contrary to law, and are totally inconsistent with the character of this man.

The defense is cognizant and respects the fact that a jury returned a verdict of

guilty on the six counts of the indictment. But an objective review of Mr. Mousavi’s

life history, and of the evidence now available to the Court, reveals that the jury did

not receive a correct view of the facts of this case. As demonstrated by the

Declarations of highly esteemed scholars, Dr. Muhammad Sahimi, Dr. Sasan

Marandi, and Mr. Amirhassan Boozari, in conjunction with the exculpatory evidence

not presented to the jury, attached hereto – including Declarations of percipient

witnesses from Kuwait to the Al Mal Kuwai contract which is the substance of

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Dr. Sahimi, professor of chemical engineering and materials science, as

well as professor of petroleum engineering, at the University of Southern California,

and Mr. Boozari, former legal advisor to Iran’s Parliament (1990-1992) in Tehran,

Iran, and presently a candidate for a Ph.D. of Law at U.C.L.A., will be present at court

for sentencing to answer any questions the Court may have. In addition, Mr.

Mahmood Kamiyabipour, who has provided his declaration to the Court, a visiting

professor of law at Southwestern Law School and Claremont College, and a former

high ranking member of the Ministry of Foreign Affairs under the pre-revolutionary

government of the Shah of Iran, will be present at court. Further, accountant Mr. Syed

Shuja, who performed the financial analysis pertaining to tax loss, also will be

present.

Dr. Marandi, a United States Citizen who is a professor in the University of

Tehran, will not be present in Court on October 6 , and Saeid B. Amini, Esq., counsel

to the Interests Section of the Islamic Republic of Iran, has stated in his declaration

that he would be available to testify in Court if that is requested, but at this juncture,

has made no plan to be present on October 6 .

Finally, Mr. Mohammad Al Sager, the prior Chairman and signatory of the

contracting party, Al Mal Kuwaiti Company, now President of the Arab Parliament,

and Mr. Abdul Mohsen Hayat, the General Manager of Al Mal Kuwaiti Company at

the time of the contract in June of 2002, have advised defense counsel that they will

not appear in court.

Counts two and three, there is substantial doubt whether the verdicts of conviction are

just. The defense requests the Court to examine this exculpatory evidence in this

sentencing context for mitigation purposes.

Moreover, the defense has presented multiple sentencing arguments for the

Court’s consideration:

•

A downward departure for a violation of Counts 3 and 4, International

Emergency Economic Powers Act - Iranian Transactions Regulations, 50

U.S.C. §§ 1701-1705, 31 C.F.R. §§ 560.204 and 560.206, based on the

dramatic disparity in sentencing of others similarly situated, and that the

factors reflecting this contract correspond to the Application notes under

2M5.1 which permit a downward departure;

•

The fact that there was no tax loss resulting from the violation of Counts 1 and

2, Filing a False Tax Return, 26 U.S.C. § 7206(1) and Impeding

Administration of Tax, 26 U.S.C. § 7212, respectively; and

•

That Mr. Mousavi did not engage in obstruction of justice under § 3C1.1.

18 U.S.C. § 3553(a) requires a court to “impose a sentence sufficient, but not

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These purposes, as set out in § 3553(a)(2), are:

(a)

retribution (to reflect seriousness of the offense, to promote respect

for the law, and to provide “just punishment”);

(b)

deterrence;

(c)

incapacitation (“to protect the public from further crimes”); and

(d)

rehabilitation (“to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment

in the most effective manner”).

greater than necessary, to comply with the purposes set forth in paragraph 2.”

Ultimately, based on the arguments presented herein and the wealth of supporting

documentation, after over one year in custody, the defense requests that the Court

sentence Mr. Mousavi to a period of time served.

Based on the life history of Mr. Mousavi and his significant contribution to the

lives of others, the substantial exculpatory evidence now presented to the Court after

trial, and the fact that the sentence requested far exceeds any objective purpose for

sentencing, the defense requests that the Court use the discretion granted by Congress

under 18 U.S.C. §3553(a) and find compassion for this man. The letters and

exemplary life history provided to the Court do not lie – this man is a worthwhile

human being who has committed his life to helping others and who deserves

leniency.

II.

ARGUMENT

The Federal Sentencing Guidelines were held to be advisory in United States v.

Booker, 543 U.S. 220 (2005). The Supreme Court held in Rita v. United States, 127

S.Ct. 2456 (2007), that sentencing judges are required to impose a sentence

sufficient, but not greater than necessary, to comply with the basic aims of sentencing

in § 3553(a). This is known as 3553(a)'s parsimony provision, and it serves “as the

guidepost for sentencing decisions post-Booker.” United States v. Ferguson, 456 F.3d

660, 667 (6th Cir. 2006). In Rita, the Supreme Court forbade district courts from

according a presumption of reasonableness to the Guidelines. Rita, 127 S.Ct. at 2465

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(“The sentencing court does not enjoy the benefit of a legal presumption that the

Guidelines sentence should apply.”). The Supreme Court in Rita emphasized that a

district court may sentence below the guideline range if it determines that “the

Guidelines sentence should not apply, perhaps because (as the Guidelines themselves

foresee) the case at hand falls outside the ‘heartland’ to which the Commission

intends individual Guidelines to apply, perhaps because the Guideline sentence,

itself, fails properly to reflect 3553(a) considerations, or perhaps because the case

warrants a different sentence regardless.” Rita, 127 S.Ct. at 2465 (citations omitted).

After Booker, a district court should place “no limitation” on the information

concerning the background, character, and conduct of a person convicted of an

offense. 18 U.S.C. § 3661; Booker, 125 S.Ct at 760 (quoting § 3661). As Justice

Stevens recognized in his concurrence in Rita, “many individual characteristics ... are

not ordinarily considered under the Guidelines,” but are nevertheless “matters that §

3553(a) authorizes the sentencing judge to consider.” Rita, 127 S.Ct at 2473 (Stevens,

J., concurring). Therefore, even if the Guidelines prohibit or limit consideration of a

particular fact as the basis for a downward departure, a post-Booker sentence

reduction based on the same “prohibited” fact is authorized by § 3661, as long as

such a reduction furthers one or more of the purposes of sentencing under § 3553(a).

These principles are echoed in the Supreme Court's decisions in Kimbrough v. United

States, 128 S.Ct. 558 (2007) and Gall v. United States, 128 S.Ct. 586 (2007).

The primary sentencing mandate of Section 3553(a) states that courts must

impose the minimally sufficient sentence to achieve the statutory purposes of

punishment – justice, deterrence, incapacitation, and rehabilitation: “the court shall

impose a sentence sufficient, but not greater than necessary to comply with the

purposes set forth in [18 U.S.C. § 3553(a)(2)].” 18 U.S.C. § 3553(a).

This “parsimony provision” is not simply a factor to be considered in

determining a sentence; it represents a cap above which the Court is statutorily

prohibited from sentencing – even when a greater sentence is recommended by the

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guidelines. See United States v. Denardi, 892 F.2d 269, 276-77 (3d Cir.

1989)(Becker, J., concurring in part, dissenting in part).

In this case, an analysis of the § 3553(a) factors reveals that a sentence of time

served is sufficient but not greater than necessary to achieve the goals of sentencing.

MR. MOUSAVI’S BACKGROUND AND GOOD WORKS WITHIN THE

COMMUNITY

At trial in this case, Mr. Mousavi’s defense counsel did not present any

affirmative defense. Mr. Mousavi did not testify about his background or the

decisions underlying his conduct which made up the charges of conviction; there

were no character witnesses describing Mr. Mousavi’s law abiding nature, his role as

a family man, or his good works within the Iranian community; and there were no

percipient witnesses or experts describing to the Court or the jury what events

actually occurred which underlie these complex charges. Now is the first time that

Mr. Mousavi has the opportunity for the Court to see who this man is.

18 U.S.C. § 3553(a)(1) requires that the Court to consider: (1) the nature and

the circumstances of the offense and the history and characteristics of the defendant.

18 U.S.C. § 3661 states that “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the purpose

of imposing an appropriate sentence.” 18 U.S.C. § 3661, quoted in Booker, 125 S. Ct.

at 760.

Consequently:

Sentencing will be harder now than it was a few months ago.

District courts cannot just add up figures and pick a number

within a narrow range. Rather, they must consider all of the

applicable factors, listen carefully to defense and government

counsel, and sentence the person before them as an individual.

Booker is not an invitation to do business as usual.

United States v. Ranum, 353 F. Supp. 2d 984, 987 (E.D. Wis. 2005).

Prior to examining the evidence which has been uncovered rebutting the

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government’s evidence presented to the jury, and the guideline analysis, the defense

requests this Court to review the life history of Mr. Mousavi for purposes of 18 U.S.C.

§ 3553(a)(1).

Family Background

Mr. Mousavi’s Social History and accompanying letters, attached hereto at

Exhibit A, provides an in depth description of his background, his family, and his

philanthropic work for the community. It describes his background in Iran, excelling

in school and work prior to the Iranian revolution in 1979. Then, after the war broke

out with Iraq in the 1980s, he was dramatically injured as a civilian in Ahvaz – his

home town along the Iraqi border. As a result of that injury, he sought out medical

care in Austria. See Exhibit B, letter of Dr. Hanno Millesi, Vienna, Austria, March 9,

1981. The injury resulted in him losing a finger on one hand and having permanent

nerve damage on his left side.

During this time of war he started a new family with his wife, Nahid Nabhani,

with the birth of his son Mohammed. With the chaos in Iran, and seeking greater

financial and physical security for his family, Mr. Mousavi moved to the United

States. In the United States he worked multiple jobs, and ultimately brought over his

wife and his two children, Mohammed and Zeinab, in 1987. By 1990, he had two new

children, Zahra and Ali, both born in the United States.

The children attended their local public schools in Southern California, and they

quickly established themselves as good students. Mohammed Mousavi, the oldest,

graduated from high school in 1997 and enrolled in classes at Chaffey College.

The following year, Zeinab graduated high school and entered Cal Tech in

Pasadena on a full academic scholarship in electrical engineering. Zeinab graduated

with honors from Cal Tech four years later and went for graduate studies to the

University of Michigan where she received her Master’s degree in 2006. She is now

pursuing her Ph.D. at UCLA with a full scholarship and fellowship.

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The Mousavi’s next daughter, Zahra, graduated from the University of

California, Riverside in 2008 with a degree in biology. She is taking her prerequisite

classes at Citrus College and plans to enter a Physician’s Assistant program next fall.

In the meantime, she works as a college tutor and spends her free time volunteering at

local hospitals and at the youth programs at the mosque Mr. Mousavi co-founded.

In 2006, Ali, the youngest son, started a robotics club at Diamond Bar High

School. Ali’s school team ultimately made a 30” x 20” radio-controlled, battery-

powered car. At Cal Tech, on a volunteer basis, Ali helped to conduct research in the

field of bioengineering with Professor Joel Burdick. That position has grown into a

paid summer job. Ali is attending UCLA this fall as a freshman and will major in

astrophysics and philosophy. He has been selected for the honors program, which

requires a GPA in the top 3% of the entering student body. Ali plans to become a

professor.

Mr. Mousavi’s devotion to his family and to education were major motivating

forces behind his children’s academic success.

relates in her letter:

My father never decided for us which field to study, which

is a common practice in Iranian culture. He left that to us to

decide. He also wanted to enjoy our lives and make trips to

different regions of the world... he wanted us to be out there

and experience living among people.

writes:

My father has always been gentle and kind. I remember at

day times he would wrestle with me and at night time he

would sleep besides me. I used to have a very strong hand

as a child and one day as a five year old child I decided to

slap my father twice with all my power. Now my father had

every right to take a physical action against me, yet he

refused to do so and as a good father he let me know that he

was disappointed at me by the look on his face.

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Commitment to the Community – the Creation of the Hejrat Foundation

After bringing his family to the United States, and providing for their care and

their education, Mr. Mousavi immersed himself in the American Muslim community.

His focus, which was uncommon in the Muslim community, was on youth. First, he

started an English language program which focused on providing language instruction

to new immigrant, Muslim children. But his work did not stop there – he understood

that as new immigrants, Muslim youth were often alone without guidance in the

United States, often succumbing to drugs and violence. Similar to the role of the

church, he committed himself to using the Muslim faith to provide needed religious

and moral support for youth, intervening on their behalf.

First, Mr. Mousavi created a program of speakers which began with speeches

made by children, followed by scholars and Imams, the Muslim equivalent of priests.

But even more importantly, Mr. Mousavi provided a forum for young people to

express the concerns that they were often afraid to tell their traditional parents.

a LAUSD junior high school history teacher, writes in his

letter to the Court:

As an American Muslim youth growing up in the Southern

California Muslim community, it can be difficult to know

your place in American society, especially with the current

issues related to terrorism and the Middle East. With all the

negative portrayals of Islam and Muslims around the world,

it is easy to feel intimidated and alienated, and want to

detach yourself from the rest of society, a common reaction

of many American Muslim youth. However, Your Honor,

through his works and example, Mr. Mousavi has shown us

that this is not the right attitude. Rather than being negative

and detach ourselves from society, we should make even

more of an effort to interact and develop relationships with

those around us, regardless of race and religion...

professor of Islamic studies at

comments:

He would often call me, my brother, or my friends, and

implore us to attend these classes– and sometimes even to

teach these weekly sessions... there is absolutely nothing

more important than having older, successful Muslim youths

serve as role models for those in elementary and high

school, those who often feel lost, confused about their

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identities, and as if they do not belong anywhere. I know for

a fact that none of us would have attended those classes or

volunteered to teach if it were not for Mr. Mousavi’s weekly

phone calls.

writes:

I am an addict in recovery. Seyed devoted so much of his

time and energy to helping me…

...He also gave me the job of hosting the nightly religious

program at the mosque in front of all the people attending. I

looked like a total fool, made jokes about the women

covered in their head scarves, and I made jokes about

Muslim extremists. The silence was deafening. But he

listened to all the complaints, and the following week, he

made me do it again. I kept getting a little better and better,

less offensive and more sincere. I started to go to AA

meetings. I started to prepare to speak Saturday nights. I

began to look my parents in the eyes.

a 19 year old community college student writes:

He cared about youth the way he cared about his own

children, and he brought unity to the Iranian

community...The zenith of my adolescent years occurred at

Ahlul-Beyt. Some of my closest friendships– people with

whom I was able to relate– were formed in this mosque.

This was a place where I could not only socialize, but I

learned my religion in a safe, clean environment. While my

school friends spent their Saturday nights partying, I was

learning my religion without breaking any laws.

a UCLA undergraduate student, writes:

As a Muslim youth living in this country, I face many challenges,

and it is difficult for me to keep my faith strong. Mr. Mousavi has

been conscious to always bring interesting and well-known

speakers who understand American culture and are able to engage

even us young people. He has done so much to bridge the gap

between my generation and my parent’s generation... We do

community service, we have social activities, and we organize skits

and special programs for Mother’s Day and Father’s Day...

network administrator

and a U.S. military veteran writes:

Mr. Mousavi particularly helped some of the youth. These

few individuals were experiencing a lot of problems and

were getting into trouble, and they needed this special help

and attention to save them from themselves. I also had my

share of troubled teenage years. If I had had someone like

Mr. Mousavi in my life, perhaps I wouldn’t have gone astray

in those years.

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In 2000, Mr. Mousavi fulfilled his dream of creating an established entity

within the Muslim community in Southern California – he created the Hejrat

Foundation, a non-profit religious, educational, and charitable organization. Under

this religious organization’s umbrella, Mr. Mousavi hoped to form a mosque, and a

major charity for all people in need of assistance.

The focus of the Hejrat Foundation was five fold:

a) build a Islamic educational center; b) create a mosque; c) bring Muslims of

different cultures and sects – Arab and Iranian, Shiite and Sunni – under one roof to

resolve differences and live in peace; d) reach out to all people in need of assistance,

but particularly the Muslim youth in Southern California; and e) promote Hajj

preparation and pilgrimages to the holy cities in Mecca and Medina in Saudi Arabia.

The Hejrat Foundation and the Al-Nabi Mosque differed from other traditional

Muslim institutions; it focused on tolerance.

a recent graduate from Boston University with a Master’s

degree in Public Health, states:

I first met Seyed Mahmood Mousavi at Ahlul-Bayt mosque.

He was one of the few respected elders who supported the

youth. Unlike other mosques in which the youths are

shunned, he believed in us. He encouraged us to share our

thoughts and give lectures. Myself and others were able to

connect with others passionate about social issues such as

racism, women’s rights, the need for tolerance, and other

issues.

Later when the Al-Nabi mosque was founded, the youth

started to go there. The atmosphere of tolerance is what

drew us. The youth were able to give regular speeches and

share their concerns and ideas with the various generations

attending the mosque. Instead of wasting our time loitering

at the theaters, we were engaging in dialogues about liberal

interpretation of Islam. When some people would complain

of our “unorthodox” views, he would defend us every time.

He gave the youth a voice and I believe bridged some of the

differences between the elders and the youth. We were able

to have meaningful discussion in which we gained some of

the wisdom of our elders, and the elders were able to look at

an old concept in a new way.

a postdoctoral fellow at Cal Tech, recalls in his letter:

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Seyed Mahmood Mousavi was one of the first people that I

met at the Saturday evening program at Ahlul Bayt Mosque

in Pomona… As the only African-American at a largely

Iranian event, I believe he immediately recognized me as a

newcomer and took it upon himself greet me.

… On another occasion, I attended a board meeting of Al-

Nabi Mosque in West Covina. All of the participants in the

meeting were Iranian, and they immediately began

conducting the meeting in Farsi language… Seyed

Mahmood stopped the meeting and told people to speak in

English because it was disrespectful to conduct business in

Farsi when they knew I could not understand… Seyed

Mahmood showed me that day that he was a true citizen of

the United States, not some Iranian nationalist…We need

more people like him here in the United States. People who want to improve the state of ev

The Hajj pilgrimage component of the Hejrat Foundation was fundamental to

Mr. Mousavi’s vision of providing access to the spiritual needs of the Muslim

community. “The Hajj is a pilgrimage to Mecca. It is the largest annual pilgrimage in

the world. It is the fifth pillar of Islam, an obligation that must be carried out at least

once in their lifetime by every able-bodied Muslim who can afford to do so. It is a

demonstration of the solidarity of the Muslim people, and their submission to Allah.”

Wikipedia: http://en.wikipedia.org/wiki/Hajj. As demonstrated in Exhibit C, the

financial analysis of the accountant, Mr. Syed Shuja, no income was earned for these

pilgrimages, because the expenses were greater than the revenue received.

Mr. Mousavi took great efforts to lead the Hajj pilgrimages and care for those

participating in one of the most important spiritual events of their lives.

professor at Georgia Institute of Technology, writes:

When Mr. Mousavi started his Hajj Pilgrim program… his

main motivation was to provide the highest quality service

to the people who usually go to Mecca and Madina. This is

a very important trip for any Muslim and it is essential to do

all the tasks completely and accurately. Since I went with his

group three times, and I saw and heard about other groups

who provide the Hajj services, I can attest that Mr. Mousavi

provided an outstanding service for the pilgrims at a very

low cost. While he could have charged considerably more

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for the services he provided, he tried to charge the minimum

possible to make it more affordable for people. Even those

who could not afford to pay were given the service and were

asked to pay when they could; for Mr. Mousavi the effect of

this divine trip on people was more important than money...

I personally wanted to take my wife and my mother with me

in year 2006 and did not have cash at the time of the trip; so

I decided to skip it myself. He urged me not to do so and

asked me to pay him whenever I could. He even did not ask

me to sign agreements and commitments, etc; something that

I found very generous and gentlemanly. I paid him back

after about 9 months and offered to compensate any charges

he paid for this (e.g., interest on credit card, etc.), but he

refused to accept even a penny more than my original

charges. I am positive that no other Hajj group offers or

accepts this kind of arrangement with the pilgrims.

recalls:

There are many detailed rules and restrictions that we must

follow during the Hajj pilgrimage. Mr. Mousavi was always

available for any questions we had with regards to the

rituals... He underwent all the hardships of such a big trip to

provide us with best accommodations, meals and all other

services, to keep us healthy and safe through the hard days

of the pilgrimage program. There are hundreds of Hajj

caravans, but the preference was this one for its leader’s

kindness and the incredibly reasonable price for all the

services provided.

a UCLA undergraduate student states:

Recently, I went to Hajj with the group led by Mr. Mousavi.

It was the best experience of my life. The only reason the

youth were able to go on this trip was because he gave us a

huge discount…

lecturer in Ancient and Islamic Art and Culture

comments:

The incredible spiritual experience can be marred by the frustrating

lack of organization... Mr. Mousavi... had anticipated all of this...

spent many months ahead... speaking with hotels, bus companies,

etc., to make sure everything went smoothly... We were extremely

fortunate he took such good care of us.

Thus, rather than being a highly profitable financial endeavor, the Hajj

pilgrimages led by Mr. Mousavi further illustrate his commitment to the Muslim

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community in Southern California – giving them roots where they had none. His care

for others during these pilgrimages mirrors the care he gave the youth and other

members of the community through the Hejrat foundation.

Aerospace administrator and U.S. military veteran

describes this quality in his letter to the Court:

In the time that I have known him, whether it was from

seeing him at the mosque or from the two Hajj trips in which

I joined him, I have found Mr. Mousavi to be someone who

cares about others and particularly strives to give back to the

American society. He is a true Muslim, and a peace-loving

person. He has helped many American Muslim youth to be

able to integrate within our society and learn to work toward

enriching the American society. In addition, he has worked

on instilling in the older generation, American values of

tolerance and acceptance. In fact, I later realized that some

members of the mosque were apprehensive of my continued

presence in the programs, because they didn’t know me. It

was Mr. Mousavi who kept telling them that not only that

they should not be apprehensive of me, but they should

respect me for I had voluntarily chosen to serve my country

in the U.S. military.

The individual before the Court has been driven by a need to assist his fellow

man throughout his stay in the United States. He has raised hard working, law-

abiding, devoted children; he has intervened on behalf of those who are most in need;

and he has committed himself to bringing the peace and beauty inherent in the Muslim

faith to those in Southern California seeking that support.

Now that Mr. Mousavi has had the opportunity to present to the Court evidence

of who he is and what he has done, he respectfully requests that the Court consider

this information in assessing what constitutes a sentence which is “not greater than

necessary.”

Page 17

SENTENCING GUIDELINE ARGUMENTS

The Offense Level Recommended by the Government and Probation is Far

Outside the Range of Sentences Which Mr. Mousavi’s Conviction on

Counts 3 and 4 Warrants

The government and the probation office advocate that a § 2M5.1 Evasion of

Export Controls; Financial Transactions with Countries Supporting International

Terrorism, is the most analogous guideline in this case. That section provides for a

base offense level of 26 if “(A) national security controls or controls relating to the

proliferation of nuclear, biological, or chemical weapons or materials were evaded,”

or a level 14 otherwise. Because the current sanctions against Iran were issued under

an Executive Order which stated “the actions and policies of the Government of Iran

constitute an unusual and extraordinary threat to the national security, foreign policy,

and economy of the United States,” and Mr. Mousavi agreed to indirectly provide

services to Iran, the government and probation assert that Mr. Mousavi’s offense level

should be 26.

The base offense level of 26 from U.S.S.G. § 2M5.1 overstates the seriousness

of this particular offense and paints with too broad a brush. The defense asks: how

can it be equitable for Mr. Mousavi, who entered a commercial contract for the

creation of a GSM cellular telephone network, to be lumped into the same base

offense level as a terrorist who is exporting biological, chemical or nuclear weapons.

Application note 2 of 2.M5.1 (a)(2) states:

In determining the sentence with the applicable guideline range,

the court may consider the degree to which the violation threatened

a security interest of the United States, the volume of the

commerce involved, the extent of planning and sophistication, and

whether there were multiple occurrences. Where such factors are

present in an extreme form, a departure from the guidelines may be

warranted.

In the instant offense: a) The GSM cellular telephone network contract with the

Kuwaiti company in no way threatened the security interests on the United States; b)

Page 18

No transaction occurred (See Declarations of Mr. Al-Sager and Mr. Hayat, attached

hereto), but even under the government’s unsupported theory, the volume of the

transaction is low, and the potential gain for Mr. Mousavi ($45,000.00) is even lower;

c) The violation by Mr. Mousavi illustrates that the contract was in its earliest

planning stages, and ultimately did not materialize; d) Because this is a first violation

by Mr. Mousavi; and e) Because there is no need for restitution, the characteristics of

the instant case establish that this is an extreme case, in which a departure is

appropriate – at minimum a base offense level of 14 – which reflects a sentence under

§ 2M5.1 without the national security enhancement.

The spirit of the International Emergency Powers Act, (Title 50 United States

Code, Sections 1701 et seq.), and of the Laws of Embargo is to punish the government

of Iran and to avoid financial activity with that country to avoid “threat to the national

security, foreign policy and economy of the United States.” Careful analysis of this

violation will demonstrate that the contract involved in this case provided no threat to

our national security.

The Executive order 12959 cited by the probation office, refers to threats to

national security, but also refers threats to foreign policy and to the economy of the

United States. Using basic logic, only the sale of certain goods would jeopardize

national security, and as already described above, a contract to provide consulting

services regarding civilian cellular telephone networks – the transaction at issue –

poses no threat to national security. Moreover, the transaction did not threaten the

economy of the United States either, and therefore, Executive Order 12959 in the case

at bar would more appropriately refer to threats to foreign policy.

The probation office attempts to make the point that a violation involving a

transaction for any type of goods destined to an embargoed country warrants an

offense level 26, with the excuse of “National Security Controls.” See, Amended PSR

at p. 2. This is unquestionably invalid. As demonstrated below, the Bureau of

Page 19

Industry and Security website has published hundreds of cases, many of them related

to embargo violations. Of those cases, the vast majority of the cases were resolved

with administrative sanctions, or with settlements including civil or criminal fines, or

were merely sentenced to probation and criminal fines short of incarceration. The

above results reflect a will to cooperate with the private sector in achieving mutual

common objectives of serving our nation in enforcing the law while supporting the

exporting community.

In their effort to support their offense level argument, the probation office

referred to United States v. Mckeeve, 131 F.3d 1 (1 Cir. 1997). Probation failed to

mention, however, that at the time of the violation Mckeeve, an English national, in

attempting to sell a large quantity of computer equipment to the Libyan government

($300,000 worth of computer equipment), contacted the United Kingdom's

Department of Trade and Industry (DTI),) to ascertain whether British authorities

would require him to obtain an export license to ship computer equipment from the

United Kingdom to Libya. DTI advised him that he probably needed such a license,

and at some point, a DTI official also informed him that most computer equipment

shipped to Libya wound up in munitions factories. Through well planed machinations,

Mr. Mckeeve, together with his business partner, surreptitiously sought to export the

goods to Libya and was convicted on several counts including false statements.

Because Mr. Mckeeve was a business partner in the corporation and therefore

the principal party at interest, because he was clearly told that the goods would most

likely wind up in munitions factories, because he was selling directly to the Libyan

government, the applicable offense level of 26 was indeed appropriate because such a

transaction would truly jeopardize the national security on the United States.

Furthermore, because that the violation was premeditated, and in view of the high

dollar volume, no comparison can be drawn to the case at bar.

In contrast, in the instant case the contract was for a commercial, non-military

Page 20

product – GSM cellular telephone network, with a third party outside of the

embargoed country – Al Mal Kuwaiti Company – which by the declarations of Mr.

Mohammad Al Sager, the Chairman and signatory of the contracting party, Al Mal

Kuwaiti Company, and Mr. Abdul Mohsen Hayat, the General Manager of Al Mal

Kuwaiti Company, percipient witnesses to the contract – was for a product that

ultimately was deemed impossible to create. This cellular telephone network could

not occur due to the restrictions in Iran for private parties to enter into the GSM

cellular telephone field. See Declarations of Dr. Sahimi at ¶ 2(d) and Mr. Boozari at ¶

In cases involving prohibited financial transactions with countries supporting

international terrorism, a number of courts have recognized that the base offense level

of 26 from §2M5.1 overstates the seriousness of the conduct involved. In United State

v. Sevilla, 2006 WL 3486872, 04 CR0171 (N.D. Ill. 2006), the defendant attempted to

sell a universal testing machine to Iran in violation of the existing trade embargo.

While the court found §2M5.1 to be the applicable guideline, the court departed

downward 14 levels after considering the sentencing factors listed in 18 U.S.C. §

3553. The court noted that the volume of commerce was minimal, there was no

evidence that the attempted export was made with criminal or terrorist intent, the

product to be exported did not threaten national security, and a term of 51 to 63

months (the applicable sentencing range in that case) was inconsistent with sentences

among defendants who have been found guilty of similar offenses. Mr. Sevilla was

sentenced to 5 years probation. See also, United Stayes v. Kyriacou, No. 04 CR 265,

(E.D. Pa.) (defendant sentenced to 5 years probation for exporting technology to Iran,

government agreed to base offense level 12.)

Page 21

An Overview of Similar Cases Prosecuted in the United States Reveals

the Transparent Disparity in Sentence Requested by the Government and

Recommended by the Probation Office

Mr. Mousavi asks the Court to consider the need to avoid unwarranted

sentencing disparities in imposing a sentence in this case. As demonstrated below, the

sentence of 87-108 months is grossly disparate from the hundreds of sentences

imposed for similar counts of conviction since 2002. To impose a custodial sentence

in Mr. Mousavi’s case would generate disparity and fail to promote respect for the

law.

Disparity in sentencing has been recognized as a basis for departure prior to

Booker. In United States v. Ray, 930 F.2d 1368 (9th Cir. 1990), the Ninth Circuit

held that a sentencing court could depart from the Guideline range in order to

eliminate sentencing disparity resulting from one defendant being sentenced under the

Sentencing Guidelines when his codefendants had been sentenced during a period

when the Sentencing Guidelines had been held unconstitutional and were thus not

being applied in the Ninth Circuit. Id. at 1372-73.

Nothing in the sentencing guidelines, policy statements, or official

commentary of the Sentencing Commission suggests that the

Commission took into account the possibility that the application

of the sentencing guidelines would temporarily be suspended,

thereby creating a situation where codefendants in the same case

and involved in the same underlying criminal activity would be

sentenced under conspicuously different sentencing laws.

Id. at 1373.

Although this case does not correspond to disparity between co-defendants, the

disparity among defendants prosecuted, or not prosecuted, by the Department of

Justice for violations of embargo laws, with the sentence requested by the government

in the instant case is profound. A review of the Bureau of Industry and Security (BIS)

Annual Reports reveals the likelihood that a sentence of 87-108 months would be the

highest such sentence imposed for any similar export violation since the date of Mr.

Mousavi’s offense conduct in 2002. See, Exhibits D, BIS Annual Reports 2003-2007,

Page 22

Cases referenced by the defendant herein and/or involving transactions

with Iran are highlighted in the electronic version submitted to the Court.

“U.S. exports to Iran grew more than tenfold during President Bush's

years in office even as he accused Iran of nuclear ambitions and helping

terrorists. America sent more cigarettes to Iran _ at least $158 million

worth under Bush _ than any other products.

Other surprising shipments to Iran during the Bush administration:

brassieres, bull semen, cosmetics, fur clothing, sculptures,

perfume, musical instruments and possibly even weapons. Top

states shipping goods to Iran include California, Florida, Georgia,

Louisiana, Michigan, Mississippi, New Jersey, North Carolina,

Ohio and Wisconsin, according to an analysis by The Associated

Press of seven years of U.S. government trade data.

An AP photographer strolling through shops in Tehran had no

problem finding American brands on the shelves. An AP review of

corporate SEC filings found dozens of companies that have done

business in Iran in recent years or said their products or services

may have made it there through other channels. Some are

household names: PepsiCo, Tyson Foods, Canon, BP Amoco,

Exxon Mobil, GE Healthcare, the Wells Fargo financial services

company, Visa, Mastercard and the Cadbury Schweppes candy and

beverage maker.

See, Exhibit E at pp. 3-5 “US Exports to Iran Rose in Bush Years,” Associated Press,

July 8, 2008; http://biz.yahoo.com/ap/080708/iran_buying_american.html.

listing criminal prosecutions and enforcement cases.

In reviewing the cases listed below, in some cases, different guidelines were

used for similar violations (see below, Yaudat Mustafa Talyi case), or that, even in

cases prior to Booker, export control violations did not indeed warrant sentences as

proscribed by probation office or the government. Moreover, the Export

Administration Regulations EAR 764.3(b)(2) calls for incarceration or fines or both,

but not necessarily both.

The government’s recommendation is particularly curious in light of the fact

that the arbitrary enforcement of Embargo regulations by the Bush Administration,

especially with respect to Iran, has been so well documented. See, Exhibit E at pp. 1-

2, “U.S. export growth to Iran surprises lawmakers” MSNBC.com, July 9, 2008

(stating that the value of U.S. exports to Iran has grown from $8 million in 2001 to

$150 million in 2007.)

Page 23

Moreover, it is particularly noteworthy that sale of weaponry also continued:

Sanctions are intended in part to frustrate Iran's efforts to build its

military, but the U.S. government's own figures show at least

$148,000 worth of unspecified weapons and other military gear

were exported from the United States to Iran during Bush's time in

office. That includes $106,635 in military rifles and $8,760 in rifle

parts and accessories shipped in 2004, the data shows.

Also shipped to Iran were at least $13,000 in "aircraft launching

gear and/or deck arrestors," equipment needed to launch jets from

aircraft carriers, according to U.S. records. Iran's navy is not

believed to own or operate any carriers.

Id.

EAR §766.22: (“However, early settlement - for example, before a

charging letter has been served - has the benefit of freeing resources for BIS to deploy

in other matters ....... Because the effective implementation of the U.S. export control

system depends on the efficient use of BIS resources, BIS has an interest in

encouraging an early settlement....”);

EAR 766 Supplement 1 entitled Penalty Guidance in the Settlement of

Administrative Enforcement Cases (calls for a warning letter in the case of a first

violation, for administrative sanctions in second violations and for criminal charges

only after re-occurrence or where legitimate threats to national security are

encountered)

The annual reports of the Bureau of Industry and Security from the years 2003-

2007 attached as Exhibits D are noteworthy in demonstrating this disparity. These

reports list hundreds of export related cases, in which the vast majority of the cases are

either settled, administrative sanctions imposed, civil penalties issued, or criminal

fines were the remedy. Only a fraction of the cases resulted in incarceration. The

pattern honors the BIS Guiding Principals as indicated above, and abides by the

Export Administration Regulations which calls for an early settlement.

Unquestionably, a sentence other than time served and supervised release for

Mr. Mousavi based on the Embargo violation would constitute a major disparity when

compared to the defendant in U.S. v. Hylton, see below, who pleaded guilty on a seven

count charge for orchestrating the illegal sale of cryogenic submersible pumps valued

at $750,000, with three more pumps, valued at $1.2 million, scheduled to be delivered

later for use in major gas field development projects in Iran, and was sentenced 3

Page 24

years of probation and a criminal fine of $10,000 and a $99,000 civil fine. The goal of

consistent sentencing and law enforcement would also point to the defendant in USA

v. Pirateh, et. al., see below, who pled guilty to illegally exporting liquid injectors

from the United States to Iran and was sentenced to three years probation and a fine of

$2,000.00; and to the defendant in U.S. v Minequip, see below, who received 2 years

probation and a criminal fine of $ 3,000.00 for attempted purchase of goods destined

to Libya.

Pre-Booker Cases:

Cases Specifically Exporting Weapons or other National Security Concerns

Advance Technical Systems. On September 30, 2003, Tariq Ahmed was

sentenced in U.S. District Court in Connecticut to a prison term of two years, followed

by three years of supervised release as a result of his participation in diverting

controlled commodities, including space radar and armored personnel carrier parts,

exported from the U.S. to Pakistan. See, Exhibit D, BIS Annual Report 2003, at p. 6.

Dr. Thomas Butler. On January 14, 2003, Dr. Thomas Campbell Butler, was

convicted of forty-seven counts of a sixty-nine count indictment that stemmed from

BIS's investigation and sentenced to two years in prison for illegal exporting Yersinia

pestis (the causative agent of human plague) to Tanzania. See, Exhibit D, BIS Annual

Report 2004, at p. 44; Exhibit F, Scientist in Plague Case Is Sentenced to Two Years

in Prison, New York Times, March 11, 2004, at pp. 1-2.

General Export Violations

Pars Company Inc. On September 4, 2001, Pars Company Inc., entered a

guilty plea in a U.S. District Court in North Carolina, and was ordered to pay a

$10,000 criminal fine its role in exporting two gas monitors from the United States to

Iran through the United Arab Emirates. See, Exhibit D, BIS Annual Report 2003, at p.

Page 25

E.H. Wachs Company. On April 17, 2003, E.H. Wachs of Wheeling, Illinois

(Wachs) was sentenced to pay a fine of $506,000, serve probation for 24 months, and

institute an export compliance program after pleading guilty to exporting pipe cutting

machines and spare parts to Iran without the required U.S. Government authorization.

See, Exhibit D, BIS Annual Report 2003, at pp. 2-3.

John Clements, Minequip Corporation, Sigma Enterprises And Jeffrey

Woodbridge. On April 23, 2003, Minequip Corporation of Florida was sentenced to

one year of corporate probation and a criminal fine of $3,000 and John Clements,

President of Minequip, was sentenced to two years probation and a criminal fine of

$1,000 for attempting to illegal export goods through the United Kingdom to Libya

for use in the for the Great Man-Made River Project. See, Exhibit D, BIS Annual

Report 2003, at p. 3.

Ebara International Corp. / Everett Hylton.

On September 23, 2004, Ebara International and Ebara's founder, former

CEO and Chairman of the Board of Directors Everett Hylton, pleaded guilty in U.S.

District Court for the District of and admitted to a scheme to export cryogenic

submersible pumps and associated technology for use in major gas field development

projects in Iran, by exporting the goods and technology first through France and

Japan. Ebara International agreed to pay a $6.3 million criminal fine and Hylton's

sentence was 3 years of probation and a criminal fine of $10,000. See, Exhibit D, BIS

Annual Report 2004, at p. 40-41; Exhibit F, “Ebara International and Former Founder

and CEO Settle Charges of Illegal Exports,” at p. 3.

Yaudat Mustafa Talyi. On April 28, 2004, Yaudat Mustafa Talyi was

sentenced to ten months confinement - five months in the custody of the Bureau of

Prisons and five months home detention and a fine of $25,000 for two IEEPA

violations. See, Exhibit D, BIS Annual Report 2004, at p. 43; Exhibit F, Federal

Page 26

Post-Booker Cases

Cases relating to Weapons, National Security

Erik Kyriacou. On August 8, 2005, Erik Kyriacou, of New York, N.Y., was

sentenced to five years probation and ordered to pay $8,000 in restitution in

connection with the export of night vision equipment for delivery to Iran without the

required U.S. Government authorization. See, Exhibit D, BIS Annual Report 2005, at

p. 49.

9. Ali Khan. On July 30, 2007, Mr. Khan was sentenced to five years probation;

$1,400,000 forfeiture, a $100,000 criminal fine, and 100 hours of community service

for one count of conspiracy in violation of 18 USC § 371 in connection with the

illegal export of aircraft parts to Iran. See, Exhibit D, BIS Annual Report 2007, at p.

73.

General Export Violations

BEF Corporation. In November 2004, BEF pleaded guilty to one-count of

violating the International Emergency Economic Powers Act and the Iranian

Transactions Regulations. BEF also pleaded guilty to eleven counts of making false

statements to the government. BEF was sentenced to five years probation. The

company was also ordered to pay a criminal fine of $350,000 and to criminally forfeit

an additional $150,000 to ICE. See, Exhibit D, BIS Annual Report 2005, at p. 48;

Exhibit F, Pennsylvania Company Sentenced for Illegal Exports to Iran and for

Making False Statements, at p. 9.

10. LPPAI, LTD. on December 16, 2005 LPPAI, LTD., a Houston partnership

pleaded guilty in connection with illegal export of specialty pipes to Iran, and was

sentenced to a criminal fine of $50,000 and corporate probation of three years. See,

Exhibit D, BIS Annual Report 2006, at p. 52; Exhibit F, Houston Partnership

Sentenced for Attempted Illegal Export of Specialty Alloy Pipes to Iran, at pp. 10-12.

Page 27

Cases Resolved With Settlements

11. Wilden Pump and Engineering Co., LLC (Wilden), a company based in

Grand Terrace, California, paid a $700,000 civil penalty to settle administrative

charges that it violated the Export Administration Regulations (EAR) in connection

with unauthorized exports of diaphragm pumps from the United States to the Iran,

Israel, People's Republic of China, Syria, and the United Arab Emirates. See, Exhibit

F, California Company Settles Charges of Unauthorized Exports to Iran, Israel,

People’s Republic of China, Syria, and the United Arab Emirates, at p. 13.

Civil Charges

There are many more cases were the company receives only administrative

charges that are resolved with civil penalties. As an example, Gateway 2000 exported

computers to 16 countries including Syria and Iran; they made false or misleading

documents or material fact on shipping documents on 27 occasions and were merely

civilly fined $402,000.00. See, Exhibit F, Gateway 2000 Settles Computer Export

Control Charges, at pp. 14-15.

As is clear from the above examples, and the BIS Annual Reports 2003-2007

attached hereto, the vast majority of BIS embargo violation cases are resolved with

probation and fines or administrative sanctions and prison relatively small prison

sentences are reserved for only the most egregious violations. Since this is Mr.

Mousavi’s first and only violation, an administrative sanction would constitute

consistent sentencing. As can be confirmed, almost all sentences are well below the

2M5.1 guideline.

A fundamental purpose of the Sentencing Reform Act of 1984 and the

Sentencing Guidelines system it created is to eliminate disparity in sentencing. In

summing up its criticism of the then-existing system and the reasons for the new

system, the Senate Judiciary Committee explained:

The shameful disparity in criminal sentences is a

major flaw in the existing criminal justice system and makes

Page 28

it clear that the system is ripe for reform. Correcting our

arbitrary and capricious method of sentencing will not be a

panacea for all of the problems which confront the

administration of criminal justice, but it will constitute a

significant step forward.

S. Rep. No. 225, 98th Cong., 1st Sess. 65 (1983), reprinted in 1984 U.S.C.C.A.N.

3182, 3248. See also, id. at 52 ("[a] primary goal of sentencing reform is the

elimination of unwarranted sentencing disparity").

As demonstrated above, the sentence requested by the government and

recommended by the government for Mr. Mousavi’s purported violation of the

Embargo with Iran is blatantly disparate from transparently much more egregious

cases. Based on this disparity, this Court should depart downward from offense level

of 26.

The Government Suffered No Tax Loss in this Case

When Reducing the Revenue by the Expenses of the Hajj, Mr. Mousavi

and the Hejrat Foundation Made No Income.

§ 2T1.1(a)(2) states that if there is no tax loss, a Base Offense level of 6 is to be

used. To determine whether there is tax loss, the § 2T1.1 focuses on gross income.

"Gross income," according to I.R.C. § 61, is determined by subtracting all "above the

line" items from gross receipts. See Reg. § 1.61-3(a). The very definition of "gross

income" has been thought to mandate the exclusion of certain amounts (e. g., the cost

of goods sold) from that figure, even in the absence of specific statutory authority for

such exclusion. Max Sobel Wholesale Liquors v. C. I. R., 630 F.2d 670 (9th Cir.

1980). Thus, to determine gross income in this case, it was necessary to examine the

expenses of the Hajj.

On April 17, 2008 – the third day of the trial, Special Agent Caruth testified on

cross examination:

Q. It's fair to say that if the expenses exceeded the

revenues there would be no taxable income; is that true?

Page 29

A. Well, I can say from the documents in the -- the

documents that are in evidence the expenses did not exceed

the revenue.

Q. The ones you looked at?

A. Correct.

Q. But your analysis was incomplete because you didn't have

all the checks?

A. I did not have every single check, yes. That is true.

Exhibit G, 4/17/08, RT 84:4-12.

The truth is, if the government had closely reviewed the banking records, and

took the necessary effort to understand the costs of the Hajj pilgrimage, it too would

have seen that the Hajj Caravan expenses exceeded the revenue received in both 2003

and 2004. Thus, there was no “income” for Mr. Mousavi and/or the Hejrat

Foundation to report. The government’s calculation of loss, adopted by the probation

office, is simply wrong. Based on the analysis presented to this Court attached hereto

at Exhibit C, it is clear that there was no tax loss to the federal government.

Attached hereto at Exhibit C is the report and resume of accountant Mr. Syed

Shuja, who performed a detailed analysis of the revenue that came in for the Hajj

caravan, and the expenses incurred. The supporting documentation is set out in sub-

exhibits 1 through 18. In addition, the declaration of Zeinab Mousavi, attached

hereto, demonstrates the basis for the determination that the documents listed in the

expense calculation constituted Hajj expenses.

As a result of that analysis, Mr. Shuja concluded:

The total revenue for the Hajj caravan was $112,875 for the year 2003;

The total expenses for the Hajj caravan was $137,739 for the year 2003;

Resulting in a loss of $24,864 for the year 2003;

The total revenue for the Hajj caravan was $358,037.00 for the year

2004;

Page 30

The total expenses for the Hajj caravan was $409,014.00 for the year

2004.

Resulting in a loss of $50,977.00.

As demonstrated in Mr. Shuja’s report and the supporting exhibits, and

corroborated in the declaration of Zeinab Mousavi, a portion, but by no means the

majority, of the expenses for the Hajj pilgrimages consisted of cash pay outs in Saudi

Arabia. Hejrat Foundation paid for expenses by wire to Saudi Arabia, checks for

travel documents and other related expenses, and cash. Consequently, with regard to

cash, there are no receipts, other than several contracts, recording these cash

payments.

In order to demonstrate to the Court that the Hajj pilgrimages require cash, the

attached declarations provide guidance to the Court of the need for cash payments.

I am the owner and founder of

, a Hajj tour group.

I am writing to explain the way that our company organizes Hajj

trips. In general, at the time of Ramadan, our company sends a

representative to cities in Saudi Arabia to organize hotel bookings

and buses and other travel arrangements. Usually, at some point at

the beginning of Ramadan, we pay 10-25% of the hotel fees. The,

at the end of Ramadan, we pay the remaining percentage of hotel

fees. Usually, these fees are bank wired. . .

Many of our expenses are paid in cash during the actual

pilgrimage. For instance, it is necessary to pay many of the Saudi

workers such as bus drivers, cooks, security guards, escorts, and

translators with cash. Sometimes, we need to purchase food for the

tour group.

Declaration of

attached hereto.

Many of the Manara Hajj expenses are

actual pilgrimage. . .

During the Hajj, Manara Travel must pay many of the Saudi

workers, bus drivers, cooks, security guards, escorts, and

translators with cash. In general, most of these individuals do not

have bank accounts.

Declaration of Foongy Lee, attached hereto.

Page 31

As described above, and in the letters filed with the Court – particularly

– the focus of the Hajj led by Mr. Mousavi and the Hejrat

Foundation was not financial gain, it was bringing this critical component of the

Islamic faith to American Muslims. Consequently, Mr. Mousavi and Hejrat uniformly

lost money on these pilgrimages, and made no income.

Mr. Mousavi Should Not Receive a Two Level Enhancement for

Obstruction of Justice

It is the government’s burden of proving by clear and convincing evidence that

Mr. Mousavi willfully provided false testimony in order to apply the obstruction of

justice enhancement under Guideline § 3C1.1. See, United States v. Eirven, 987 F.2d

634(9th Cir. 1993); United States v. Ransom, (8 Cir. 1993), 990 F.2d 1011. It

cannot meet that burden in this case.

The government’s Sentencing Position fails to support the willfulness prong

by providing any specific evidence. Rather it states “[I]n denying defendant’s motion

to suppress, the Court itself rejected defendant’s claims.” Gov. Sen. Pos at p. 3. This

argument lacks merit. Just as a district court may not base a finding of perjury upon

the mere fact that the jury returned a verdict of guilty after the defendant testified,

see, Mathews v. United States, 11 F.3d 583, 586-87 (6th Cir.1993), it may not find

obstruction simply because it failed to grant a motion to suppress involuntary

statements. In fact, to ensure that defendants who are found guilty are not penalized

by automatic enhancement of their sentences under § 3C1.1 for having testified, the

United States Supreme Court has required that if a defendant objects to an

enhancement for obstruction of justice, the district court must “review the evidence

and make independent findings necessary to establish” the perjury. United States v.

Dunnigan, 507 U.S. 87 (1993).

This requirement is even more important here where the alleged false

statements of the defendant do not even address the issue of guilt or innocence, but

Page 32

the collateral matter of voluntariness of a pre-indictment statement. In deciding the

defendant’s suppression motion in this context “[T]he test is whether, considering the

totality of the circumstances, the government obtained the statement by physical or

psychological coercion or by improper inducement so that the suspect's will was

overborne.” United States v. Leon Guerrero, 847 F.2d 1363 (9 Cir. 1988). This

totality of the circumstances test was clarified and refined by the Supreme Court in

Colorado v. Connelly, 479 U.S. 157 (1986), where the Court held that “coercive

police activity is a necessary predicate to the finding that a confession is not

‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” Id. at 167. The Court emphasized that in the confession cases it had

decided over the previous 50 years, the “crucial element” had been the presence of

“police overreaching.” Id. at 163 & n. 1.

As the Eighth Circuit stated, “Connelly makes it clear that ... personal

characteristics of the defendant are constitutionally irrelevant absent proof of

coercion.” United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.) (internal

quotations omitted), cert. denied, 482 U.S. 909 (1987). Thus, contrary to the

government position, the Court’s denial of the defendant’s Motion to Suppress and

the truthfulness of Mr. Mousavi’s testimony regarding his English abilities and

subjective sense of freedom to leave the premises are not mutually exclusive. In fact,

if the Court found the absence of police coercion, specific characteristics of Mr.

Mousavi are wholly irrelevant to its determination of voluntariness. Just because the

Court ruled that Mr. Mousavi did not establish the involuntariness of his statements

does not mean he was wilfully lying.

Even a cursory review of the transcript of the interview reveals that Mr.

Mousavi’s testimony that he felt he was under arrest cannot be proven false by a

preponderance of the evidence. Specifically, it clear from the transcript that Mr.

Mousavi did not have the benefit of a Farsi interpreter when he met with the FBI – a

requirement in all proceedings before this Court. Further, the transcript of the

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Defense counsel has been advised that the government challenged this

interpretation during the Motion to Suppress. But if a government agent, presumably

a native English speaker, who translated the interrogation tapes heard that Mr.

Mousavi was told he was under arrest, it is reasonable that Mr. Mousavi without a

Farsi interpreter similarly would also hear this advisement.

interrogation also reveals that on two separate occasions the FBI told him he was

under arrest:

UM1/DAN: Ok. You are now under arrest.

See, Exhibit H, Transcript of FBI Interrogation, Bates No. 10716

UM2: Well, you’re under arrest right now –

Id., at Bates No. 10765.

Given Mr. Mousavi’s unfamiliarity with the English language, coupled with

the above affirmative statements that he was “under arrest,” it is more than reasonable

for this Court to conclude that Mr. Mousavi subjectively felt he was under arrest, and

therefore, testified in good faith that his statements were involuntary. Obstruction

should not be applied in this case.

The Possible Collateral Consequences of Mr. Mousavi’s Conviction –

Revoking his Citizenship

The government has applied to the Court to issue an order revoking Mr.

Mousavi’s citizenship based on his conviction of Count 5, 18 U.S.C. § 1425. The

defense has moved for a new trial on this Count. If the Court should deny Mr.

Mousavi’s motion for a new trial on Count 5, he faces deportation.

Deportation from the country where he has built a productive life, established a

community, and has successfully raised his family for over 20 years is an extreme

punishment which this Court should consider for purposes of sentencing. See Lennon

v. INS, 527 F.2d 187, 193 (2d Cir.1975) (“Deportation is not, of course, a penal

sanction. 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

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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.”).

If this Court should revoke Mr. Mousavi’s citizenship, the defense requests

that it consider his exile from the United States, in and of itself, a substantial

punishment for the offenses at issue, and not impose any further prison term.

EVIDENCE OF INNOCENCE

After the trial in this case, defense counsel has obtained documents and

interviewed both experts and percipient witnesses supporting Mr. Mousavi’s

innocence of the charges in the Third Superseding Indictment. This evidence was

either unavailable, or not produced at trial by previous counsel. Much of this

evidence was produced in the Motion for New Trial, filed with this Court on

September 15, 2008. Counsel will highlight new evidence not included in that

Motion and attempt to summarize the evidence already presented to this Court.

This Court should consider this new evidence pointing to innocence as a

mitigating factor at sentencing. Counsel is aware that this Court must respect the

jury’s verdict and sentence Mr. Mousavi accordingly, but for mitigation purposes,

Mr. Mousavi respectfully requests that this Court consider this evidence in its

analysis of the appropriate guideline range.

In capital cases, evidence of “lingering doubt” of the defendant’s guilt, offered

after a conviction, is admissible to convince a sentencing jury that a death sentence is

not appropriate. “Residual doubt has been recognized as an extremely effective

argument for defendants in capital cases.” Lockhart v. McCree, 476 U.S. 162, 181,

106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (quoting Grigsby v. Mabry, 758 F.2d 226,

248 (8th Cir.1985) (en banc) (Gibson, J., dissenting)).

Moreover, the failure of prior counsel to raise multiple issues of innocence

available to him, or to pursue investigation where relevant exculpatory evidence was

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available, may constitute ineffective assistance of counsel. After the Supreme

Court’s ruling in Booker, ineffective assistance of counsel should be considered as a

mitigating factor for sentencing purposes. See United States v. Vargas-Ceja, 2006

WL 2435331 at p.2 (D. Idaho, 2006)(“Defendant’s claims pertaining to the

enhancement, the mitigating factors, and ineffective assistance of counsel are all

essentially Booker claims.”)(Emphasis added). Ineffective assistance has been a

viable means of reducing the sentence of a defendant even prior to Booker. See

United States v. Duran Benitez, 110 F.Supp.2d 133 (E.D.N.Y. 2000)(where defense

lawyer had a conflict of interest because he was paid by a third party to encourage

defendant to not cooperate against the third party so defendant did not cooperate, §

2255 analysis was applied at sentencing and Court granted a six level departure

which is what the defendant would have received had he cooperated and received a §

5K1.1 from the government).

What follows is newly discovered evidence which this Court should consider

for purposes of sentencing mitigation:

Counts 3 and 4, Violations of the Embargo with Iran

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.

New evidence presented through the Declarations 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.

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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. See Declaration of Mr. Al Sager and Mr. Hayat, attached hereto.

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

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 purportedly supporting Mr.

Mousavi’s knowledge that this contract was prohibited by the Embargo was argued

by government counsel as the$45,040 wired from Al Mal Kuwaiti to Mr. Mousavi.

See, Government’s Closing Argument, at Exhibit O, RT 4/22/08, 73:6-22.

The Declarations of Mr. Al Sager and Mr. Hayat reveal that Mr. Mousavi’s

failing to report the advancement of $ 45,040 openly wired to Mr. Mousavi’s U.S.

bank account was not income, but was considered personal loan. Therefore, it was

not incumbent upon Mr. Mousavi to report this loan on his personal income tax. He

was not hiding anything from the United States government.

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.

Declaration of Al Sager at ¶ 3.

Further, as demonstrated in the Motion for New trial, not only was the contract

with Al Mal Kuwaiti completely abandoned, 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

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Mr. Boozari advises that Article 44 of the Islamic Republic of Iran’s

Constitution, “telegraph and telephone services” are included in the state sector of the

national economy and, thus, monopolized by the government. He further describes the

virtual impossibility of Mr. Mousavi as a private individual with dual citizenship in

the United States and Iran to play a role in the creation of a GSM cellular network.

Declaration of Mr. Boozari at ¶ 5.

Further, Mr. Boozari states that: “Article 44 of Iran’s Constitution, banks and

banking services are also exclusively categorized in the state sector’s economic area

of activity;” and Article 81 of Iran’s Constitution: “The granting of concessions to

foreigners for the formation of companies or institutions dealing with commerce,

industry, agriculture, services or mineral extraction, is absolutely forbidden.” Id. at ¶

private entrepreneurial involvement in these fields. See Declaration of Dr. Sahimi at ¶

2(d); Declaration of Dr. Marandi at ¶¶ 2(b) & (c); Declaration of Mr. Al Sager at ¶ 5;

Declaration of Mr. Hayat at ¶ 6.

In addition, the defense has now located a third expert, Mr. Amirhassan

Boozari, attorney at law (1993-2001), legal advisor to Iran’s Parliament (1990-1992)

in Tehran, Iran, and presently candidate for Ph.D. of Law at U.C.L.A. Mr. Boozari’s

Declaration was not part of Mr. Mousavi’s Motion to Dismiss. In his Declaration,

Mr. Boozari corroborates the opinion of Dr. Sahimi and Dr. Marandi with regard to

the impossibility of the creation of the GSM license and the creation of the bank and

leasing company, and cites to specific sections of Iranian law. See Declaration of Mr.

Boozari at ¶¶ 5 & 6.

Further, Dr. Sahimi, Dr. Marandi, and Mr. Boozari all opine about the lack of

knowledge within the Iranian community of what conduct was prohibited under the

Embargo. Particularly reflecting a GSM cellular telephone network contract with a

Kuwaiti company, the likelihood of Mr. Mousavi not having knowledge that this

financial activity was prohibited was completely reasonable. Declaration of Dr.

Sahimi at ¶¶ 2(a) & (c), see also ¶¶ 2(b), (d), (e) and (f); Declaration of Dr. Marandi

at ¶ 2(a); Declaration of Mr. Boozari at ¶¶ 3-5.

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Other than the government’s empty 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. Dr.

Sahimi, Dr. Marandi and Mr. Boozari’s expert opinions reveal what was the extent of

the knowledge of the Embargo within the Iranian American community, and

demonstrate that the government did not prove that Mr. Mousavi had the requisite

specific intent.

Counts 5 and 6

Count 5, a violation of 18 U.S.C. § 1425, stems from the failure of Mr.

Mousavi to list positions or groups on his naturalization application which

purportedly were “affiliations” or “memberships,” or whether he was a member of

the Iranian military. Count 6 is a violation of 18 U.S.C. § 1001 based on Mr.

Mousavi’s statement that he was not a part of the Iranian military.

Of course, the failure to list these positions or entities was a subjective decision

made by Mr. Mousavi. Based on the documents attached hereto, and the declarations

of experts Dr. Sahimi, Dr. Marandi, and Mr. Boozari, it is reasonable to believe that

Mr. Mousavi’s statements on his naturalization application and to the government

agent were made in good faith, and were accurate.

Lack of Membership in the Iranian Military

Exhibit I, attached hereto, are letters from M. Rahmani, Ph.D., Director of the

Interests Section of the Islamic Republic of Iran out of the Embassy of Pakistan

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

Page 39

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 stem from the Interests Section of the Islamic Republic of Iran out of the

Embassy of Pakistan. Similarly, all diplomatic relations within Iran by the United

States are performed out of the Embassy of Switzerland.

It is noteworthy that when Mr. Mousavi applied for visa, and later for

residency in the United States he had to provide the government with finger prints.

Thus, it was clear that he was missing a finger. Consequently, during the interviews

with immigration officials, he necessarily explained his injuries as a civilian from the

attacks on Ahvaz.

Guards or any type of law enforcement agencies. As described in the Declaration of

Saeid B. Amini, Esq., counsel to the Interests Section of the Islamic Republic of Iran,

after research on Mr. Mousavi had taken place in Iran, these conclusions about Mr.

Mousavi’s lack of military status was confirmed. Dr. Rahmani cannot testify in a

court of law based on diplomatic restrictions, but Mr. Amini, as counsel for the

Interest Section, has agreed to testify in his place. See Declaration of Saeid B. Amini,

at ¶¶ 5-7.

Further, as demonstrated by Exhibit J, attached hereto, and translated twice, as

of November 8, 1978, two years prior to the Iran / Iraq war, Mr. Mousavi was exempt

from military service based on his medical condition.

At trial, documents were introduced which demonstrated that Mr. Mousavi was

injured during the war while living in the city of Ahvaz in southern Iran, which made

him eligible for “Janbaz” or war victim status. This status does not reflect Mr.

Mousavi’s membership or affiliation in the military, but rather, his ability to receive

benefits for his disability due to a war related injury. See Declaration of Dr. Sahimi,

at ¶ 3(a); Declaration of Dr. Marandi at ¶ 3(a); Declaration of Mr. Boozari at ¶ 8(a).

Moreover, the March 9, 1981 letter from the Dr. Hanno Millessi, attached

hereto at Exhibit B, the Austrian doctor who treated Mr. Mousavi in Austria for his

war wounds, reveals the fact that, unlike a member of the military, Mr. Mousavi was

permitted to leave the country to seek medical treatment. This fact alone reveals that

Mr. Mousavi was not a member of the military. Declaration of Dr. Sahimi at ¶ 3(b);

Declaration of Dr. Marandi at ¶ 3(b); Declaration of Mr. Boozari at ¶ 8(d).

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Ultimately, on April 22, 2008, the date of closing arguments, this Court

recognized that the evidence reflecting Mr. Mousavi’s purported position in the

military was problematic:

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 K, RT 8/22/08, 48:10-20. (Emphasis added).

The Court’s instinct was exactly correct. As demonstrated by the supporting

documents and the declarations of the experts, Mr. Mousavi was not a member of the

Iranian military, he was a civilian employee who was injured in the front. Mr.

Mousavi did not violate either Counts 5 or 6 by informing the government agent that

he was not a member of the military, and by omitting that status on his citizenship

application.

Lack of “Membership” or “Affiliation” in the Groups or Positions Stated

in Count 5 of the Indictment

Mr. Mousavi was found guilty of 18 U.S.C. § 1425 by inserting “None”

following this section on his Naturalization Application:

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.

Expert testimony would have demonstrated that not only was he not part of the

Iranian military, but it was a reasonable, good faith response for Mr. Mousavi to not

list multiple positions he held in Iran in the early 1980s during the Iran / Iraq war.

As for the groups which Mr. Mousavi allegedly had a “past membership in or

Page 41

“Iraq attempted to annex Kh

uzestan and Ahvaz in 1980, resulting in

the IranIraq War (1980-1988). Ahvaz was close to the front lines and suffered badly

during the war.”

Wikepedia: http://en.wikipedia.org/wiki/Ahvaz.

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

a Director; and The Welcoming Committee for the Imame Ummat.

Dr. Sahimi, Dr. Marandi and Mr. Boozari would testify that Mr. Mousavi was

“ordered” to participate in these groups, other than the Welcoming Committee for the

Imame Ummat. These experts 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. Declaration of Dr. Marandi, at ¶ 3(a)

Consequently, all three experts, addressing this question from their own

personal knowledge and experience, specifically state that conscription in these

groups did not reflect any ideological or political affiliation or membership.

Declaration of Dr. Sahimi at ¶ 3(g); Declaration of Dr. Marandi at ¶ 3(g); and

Declaration of Mr. Boozari at ¶ 9(a) & (b).

Moreover, Mr. Mousavi would have been persecuted if he rejected his

“appointment” to these positions during the time of the Iran / Iraq war. He had no

choice but to accept these positions – further bolstering the position that he had no

voluntary “affiliation” or “membership” status with these positions or groups.

In his Declaration to the Court, Mahmoud Kamiyabipour, describes the

likelihood of persecution if Mr. Mousavi should decline these positions. Mr.

Kamiyabipour was no friend of the Revolutionary government of Iran and was

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intimately aware of the persecution of those who did not adhere to orders of the

government during the time of the war. Under the government of the Shah of Iran,

Mr. Kamiyabipour held positions in the Ministry of Foreign Affairs. Within the

Ministry of Foreign Affairs he served a post in Peking, China for four years, was later

transferred to London, England where he was the First Political Officer, and finally,

he was the number two diplomatic officer as Deputy Ambassador in Jakarta,

Indonesia. Today, he is a United States citizen and has been invited as a visiting

professor of law at Southwestern Law School and Claremont College. Declaration of

Mr. Kamiyabipour at ¶¶ 1 and 2.

Mr. Kamiyabipour reviewed the documentation reflecting Mr. Mousavi’s

appointment to these positions states in his declaration:

After being replaced at the Iranian Embassy in Indonesia, I

returned to Iran, which was now under the control of the

Revolutionary government. I stayed in Iran from 1981 until 1985,

at which time I left for the United States. During the time I was in

Iran I could not leave the country, by order of the Revolutionary

Court. As a prior member of the Shah’s government, I was not

treated well. I was repeatedly interrogated, and not permitted to

have employment that suited my qualifications. . .

From my personal experience while I was in Iran, and from my

research and discussions with other Iranians who were living in

Iran during the early years of the Revolution, and during the Iran /

Iraq war, I know that these were positions that the Revolutionary

Guard or other government institutions appointed to individuals

within Iran. These were not voluntary positions, rather, an

individual was inducted into these positions. In those years, a

person could not reject such an appointment. If a person

attempted to reject these appointed positions, he would likely be

persecuted.

Declaration of Mr. Kamiyabipour at ¶¶ 3 and 6.

Similarly, Dr. Sahimi describes the persecution within his own family –

including the murder of his own brother – when family members expressed views

contrary to the Revolutionary government at the time of the Iran / Iraq war.

Declaration of Dr. Sahimi at ¶ 3.

Finally, Dr. Sahimi, Dr. Marandi and Mr. Boozari describe that the Welcoming

Committee for the Imame Ummat was far from a from an “affiliation or

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8a & b; 11a & b; and 14a & b, are documents from Government’s trial

exhibit 48, with the English translation. Based on flaws in the translation, the defense

has provided 8b, 11b, and 14b – accurate translations of the original Farsi documents.

It is noteworthy that Mr. Mousavi was appointed to a position in West

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.

membership,” but rather a massive group of supporters throughout the country when

Ayatollah Khomeini returned from exile Declaration of Dr. Sahimi, at ¶ 3(f)(I);

Declaration of Dr. Marandi at ¶3(f)(I); and Declaration of Mr. Boozari at ¶ 9(b).

Mr. Mousavi did not lie on his citizenship application, and unfortunately, the

jury never heard this critical evidence. When Mr. Mousavi wrote “none” to whether

he had prior “affiliations or memberships,” it was not only a reasonable response, it

was a truthful statement made in good faith by an Iranian American, who, during this

time of the country’s history, was ordered to take government positions by the newly

formed Revolutionary government which was being attacked by Iraq.

This position is further bolstered by:

•

Exhibit L, are three letters of appointment for Mr. Mousavi. These letters

consist of: 1) July 27, 1981, the Deputy Director of the Cultural Affairs and in

charge of Tribal Islamic Center of Iran (pp. 8, 8a & 8b); 2) July 23, 1981, head

of the Political and Disciplinary Bureau of the Governorship of West

Azerbaijan ; and 3) July 25, 1981, Representative of the Office of West

Azerbaijan Governor Inspecting the Conditions of Inmates and Prisons.

The defense asks: how could Mr. Mousavi be expected to serve these three

positions at the same time, all appointed within a 7 day period? As described

by Dr. Sahimi at ¶ 3(f)(II) of his declaration:

The fact that there were so many positions to which he had been

assigned only reveals the chaos and disorganization of the time –

the government was not keeping track of who was being

appointed to what positions – and Mr. Mousavi could not feasibly

have served a role in all of these positions.

•

Exhibit M, is a document demonstrating that Mr. Mousavi continued to be paid

Page 44

as an employee of the Steel Complex in Ahvaz, regardless of the fact that he is

receiving orders to take multiple positions throughout Ahvaz and Azerbaijan.

What this document reveals is exactly what the experts described in their

declarations: in a time of chaos and war in a newly formed Revolutionary

government, the government conscripted educated individuals from their

positions to perform necessary tasks. Mr. Mousavi did not formally leave his

job – he still received payment from the Steel Complex – he simply was

ordered to take on different roles during this time of crisis.

In a time of war, shortly after the creation of the Revolutionary government, in

locations on the front line of battle, Mr. Mousavi as a civilian was ordered to take

multiple positions within the Iranian government. He had no ideological affiliations

or memberships with the entities to which he was appointed. If he refused to take

such positions, he would have been persecuted. It was a reasonable, good faith

decision for him to not list these groups on his citizenship application.

Count 2 - Impeding the Administration of Tax

Mr. Mousavi Received No Income from the Hajj Caravan Services

Count 2 of the Third Superseding Indictment states in pertinent part:

SEYED MAHMOOD MOUSAVI . . . did corruptly endeavor to

impede employees of the Internal Revenue Service acting in their

official capacity under Title 26 of the United States Code, and the

due administration of Title 26 of the United States Code, by

failing to report on his personal income tax returns (IRS Form

1040) and on his application for exemption from tax on behalf of

the Hejrat Foundation (IRS Form 1023) income he received in

exchange for providing “caravan services” to individuals

undertaking a Hajj pilgrimage to Mecca.

(Emphasis added).

From the language of the government’s own charging instrument, to impede

the administration of tax in this case, Mr. Mousavi had to have earned personal

income from Hajj caravan services to be listed on Form 1040 and Form 1023 of the

Hejrat Foundation. If Mr. Mousavi lost money, and there was no income earned, he

Page 45

would not be guilty of Count 2 of the Third Superseding Indictment.

As demonstrated above and in Exhibit C, the Report and resume of accountant

Mr. Syed Shuja, no income was made by Mr. Mousavi, and therefore, no reporting to

the IRS was required.

The Hajj was Related Business Income to the Exempt Purpose of the

Hejrat Foundation and Therefore is Exempt from Any Income Tax for

this Purpose

Count 2 states that Mr. Mousavi failed to report income on his application for

exemption from tax on behalf of the Hejrat Foundation (IRS Form 1023). First, as

demonstrated in Exhibit C, the Report of Mr. Shuja and the accompanying

documents, the Hajj caravans did not make any income to report on IRS Form 1023.

IRS Publication 598 – Tax on Unrelated Business Income of Exempt

Organizations – states:

An exempt organization is not taxed on its income from an

activity that is substantially related to the charitable, educational,

or other purpose that is the basis for the organization’s exemption.

Such income is exempt even if the activity is a trade or business.

Emphasis added.

The Hajj caravan services in this case was substantially related to the Hejrat

Foundation’s purpose. As demonstrated in Exhibit N , the attachment to Mr.

Mousavi’s IRS Form 1023, Hajj is fundamental to the practice of Islam, and

fundamental to the purpose of the Hejrat foundation. Under the section “Line 4a”

“Further Activities May Include,” #4 states “Conduct classes to prepare individuals

for pilgrimage (Haaj).” Further, under the section “Line 1b, Form of Worship” the

Hejrat Foundation writes: “Once a Life Time: We make Hajj (pilgrimage to Mekka).

The pilgrimage is actually a form of practical education. .”

Hejrat Foundation’s overriding purpose was to provide instruction and support

to the Southern California community through the teachings of Islam and to use

Page 46

Muslim principles to help reinforce a moral and religious life. A Hajj pilgrimage to

Mecca and Medina is the “Fifth Pillar of Islam,” a fundamental requirement of all

Muslims to pursue once in their lives. Hajj, the critical pilgrimage required for all

Muslims, was fundamental to that purpose, and consequently, substantially related to

that purpose.

In the example section of IRS Publication 598, the IRS provides guidance on

what constitutes related business income for a travel tour program:

A tax-exempt organization formed for the purpose of educating

individuals about the geography and the culture of the United

States provides study tours to national parks and other locations

within the United States. These tours are conducted by teachers

and others certified by the state board of education. The tours are

primarily designed for students enrolled in degree programs at

state educational institutions, but are open to all who agree to

participate in the required study program associated with the tour

taken. A tour’s study program consists of instruction on subjects

related to the location being visited on the tour. . . Because these

tours are substantially related to the organization’s exempt

purpose, they are not an unrelated trade or business.

Similar to the example given above, the Hajj pilgrimage run by the Hejrat

Foundation provided instruction on subjects related to the tour.

During the Hajj trip, I saw how he [Mr. Mousavi] spent several

sleepless nights to make sure all the arrangements were perfectly

done for people. It is customary that many groups take one clergy

member, who teaches people during the program and answers

their questions. Mr. Mousavi brought three clergy members (two

males and one female) to make sure all people’s questions. Mr.

Mousavi brought three clergy members (two Males and one

female) to make sure all people’s questions were answered in a

timely fashion.

Letter of

The Hajj pilgrimage, a fundamental “5 Pillar” of Islam, in which Mr. Mousavi

financially assisted those who normally could not afford to attend, and arranged for

lecturers to further the participants knowledge, was substantially related to the overall

purpose of the Hejrat Foundation.

Count 1

As demonstrated above, the Declarations of Mr. Abdul Mohsen Hayat and Mr.

Page 47

Mohammad Al Sager reveal that the $45,040 was not income, it was a loan, and

therefore, there 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

Based on the arguments presented herein, the defense respectfully requests a

sentence of time served in this case. A closer look at the case reveals that Mr.

Mousavi is not the criminal who the government is committed to punishing, but a

caring, decent, hard-working family man, who has committed his life to the

disadvantaged, his community, and to his faith, and who is greatly respected by all

those who know him.

a long term friend of the Mousavi family,

describes Mr.

Mousavi to the Court:

My memories of Seyed Mousavi are helping the poor in East LA

as well as South Central. Seyed Mousavi endeavored to not only

provide the poor with food and clothes, but more importantly, he

took great strides in helping to find them jobs. It was Seyed

Mousavi’s incredible energy that struck me as a teen, and

continues to be a driving force in my own acts of good will and

charity. Neither my father nor my mother had much interest in

helping the needy. However, because Seyed Mousavi was a

champion of this cause, and of his deeds and words he imparted to

me, I have been molded into the person I am today.

This tremendous commitment to the disadvantaged is described by Mr.

Mousavi’s

. . .[M]y father looked at his own children and saw that we had

what we needed, while others didn’t. We had a strong family,

while many others only had chaos. He saw that we were fine, so

he was safe to give time and money to people who needed it. I

can see now that he really did make a positive impact on the lives

of many, especially many of the youth, whose lives truly have

been changed for the better. Their parents had the responsibility

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to take care of them, but if they weren’t, then my father would.

He didn’t brag about it; he didn’t humiliate the parents for

failures; he didn’t act judgmentally to the youth; he simply

stepped in and, with a caring hand, helped the youth to refocus

and improve.

Mr. Mousavi, his family, his community, and society as a whole will all benefit

from a sentence of time served in this case.

In the interest of justice,

Respectfully submitted,

KAYE, McLANE & BEDNARSKI, LLP

DATED: September 22, 2008

/S/

RONALD O. KAYE

Attorneys for Defendant

Seyed Mahmood Mousavi