You are on page 1of 5

Case 1:08-cr-20612-PAS

Document 38

Entered on FLSD Docket 07/21/2008

Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-20612-CR-SEITZ/OSULLIVAN UNITED STATES OF AMERICA vs. HASSAN SAIED KESHARI ________________________________/ KESHARIS REPLY TO GOVERNMENTS OPPOSITION TO MOTION TO REOPEN PRE-TRIAL DETENTION HEARING PURSUANT TO 18 U.S.C. 3142(f) The government opposes reopening the detention hearing in this case claiming that no pertinent information has come to light since the hearing on June 26, 2008. To make this claim, the government minimizes the significance of important developments directly bearing on the statutory factors the Court must weigh to detain a defendant pending trial.

# Nature of the charges. The indictment in this case was returned after the
detention hearing. Thus, the specifics of the charges against Mr. Keshari are now known. The most important revelation in the indictment is that the charges all stem from a sum total of seven shipments of parts that are common to all aircraft. At the hearing, the government vaguely suggested many shipments and stated that Mr. Keshari necessarily

Case 1:08-cr-20612-PAS

Document 38

Entered on FLSD Docket 07/21/2008

Page 2 of 5

knew the parts were for military aircraft.1 In fact, there were only seven shipments and there is nothing but the governments own speculation to support that Mr. Keshari could tell that any given harness assembly or accumulator was necessarily for use on a military aircraft. Far from substantiating the governments earlier claims, the indictment shows that the government exaggerated the nature of Mr. Kesharis alleged involvement. The charges in the indictment include only two violations of the Arms Export Control Act, which is substantially fewer than the government proffered. The government claims it is waiting for paperwork from the Department of State to bring more AECA charges. See Governments Opposition at 6. Nonetheless, the fact remains that this has not happened to date, and the Bail Reform Act limits this Courts consideration to the the nature and circumstances of the offense charged. 18 U.S.C. 3142(g)(1) (emphasis added). The government cites no authority for detaining an individual based on speculation about future charges because there is none. Most of the charges are simple violations of the Iran embargo. The government reacts with outrage at this characterization of its indictment, insisting that the charges raise national security implications. Governments Opposition at 6. That, however, is true of every violation of the Iran embargo. See United States v. Hassanzadeh, 271 F.3d 574 (4th Cir. The governments vague claim gave a gravely distorted picture of a dedicated arms dealer: Basically, what is alleged in the complaint is that the defendant Keshari is basically a broker of military aircraft parts. He received orders via e-mail from individuals in Iran for specific military aircraft parts. Transcript at 3. 2
1

Case 1:08-cr-20612-PAS

Document 38

Entered on FLSD Docket 07/21/2008

Page 3 of 5

2001) (stating that importation of Persian rugs from Germany could support Iranian terrorism). That is why there is an embargo. While the charges are of course serious ones, the analysis is not furthered by overblown, unsupported rhetorical flourishes. Now that the indictment has been returned, the Court can make a far better appraisal of their nature than it could with only the governments proffer. It is now far more clear than it was before the indictment that the governments estimate of 5 to 6 years is in fact that very highest sentence that Mr. Keshari could possibly receive in this case. Governments Opposition at 9. In fact, as we demonstrated in our motion, the more likely sentence if there is a conviction is in the two-year range. See Motion at 11. In any event, as the Court is aware, such a range of sentences (two to five years) is not high by federal standards. A United States citizen with a wife and two children who have all grown up in the United States is not likely to abscond to Iran with his family to avoid such a consequence. Nor does the government give any reason to believe such a wildly improbable scenario will come to pass.

# Weight of the evidence. Assuming the embargo was violated, the important
question is whether Mr. Keshari knowingly violated it. For the first time, the government acknowledges that there were only seven shipments and that one of those shipments contained commercial aircraft parts. Governments Opposition at 5 (stating that only six of the seven shipments were of military aircraft parts). This fact cuts decisively against the

Case 1:08-cr-20612-PAS

Document 38

Entered on FLSD Docket 07/21/2008

Page 4 of 5

governments earlier attempt to portray Mr. Keshari as a broker of military aircraft parts. Transcript at 3. Rather, it supports the fact that Mr. Keshari was unaware of the nature of what he was shipping or where it was going. The government also acknowledges for the first time that harness assemblies, accumulators, and the other parts described in the indictment are common to all aircraft. Id. at 56. It offers nothing but speculation to support the conclusion that Mr. Keshari knew the shipments in question were parts for military aircraft. Conceding for the first time in its Opposition that at least some exonerating emails exist, the government attempts to minimize their significance. At the detention hearing, however, the government suggested if not implied that all of the emails were inculpatory. It also claimed at that time that Mr. Keshari had confessed, a contention notably not pressed in its Opposition. The fact that there exists any emails that negate Mr. Kesharis mens rea is a new revelation that necessarily has a substantial effect on the weight of the governments evidence which was previously said to be ironclad. The nature of the charges in the indictment are, as the government concedes, not what was proffered. The actual charges show the governments claims to have been exaggerated in a degree that must have affected the Courts assessment of whether Mr. Keshari was likely to flee. Furthermore, having been able to make a preliminary investigation, undersigned counsel is in a far better position now than would have been

Case 1:08-cr-20612-PAS

Document 38

Entered on FLSD Docket 07/21/2008

Page 5 of 5

possible on June 26 to provide the Court a fuller picture of the weight of the evidence against Mr. Keshari. As the government now concedes but downplays, the evidence does not coalesce into the unequivocal picture of condemnation the government previously attempted to paint. Accordingly, the Court should reopen the hearing to ensure that there exists no conditions that would reasonably assure Mr. Kesharis appearance. The government will not be harmed in any way by the provision of this procedural safeguard in light of the significant developments since June 26. Respectfully submitted,

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

CERTIFICATE OF SERVICE A copy of the foregoing was served through the electronic filing system on July 22, 2008, on AUSA Melissa Damian.

___________________________ David Oscar Markus 5

You might also like