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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NUMBER 08-20612-Cr-Seitz

UNITED STATES OF AMERICA,

Plaintiff,

vs.

HASSAN SAIED KESHARI,

Defendant. ____________________________/

HASSAN SAIED KESHARIS OBJECTIONS TO THE PRESENTENCEINVESTIGATION REPORT AND SENTENCING MEMORANDUM

Case 1:08-cr-20612-PAS Document 189 Entered on FLSD Docket 04/17/2009 Page 1 of 15

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INTRODUCTION

Through this sentencing memorandum, we are respectfully requesting a sentence

of credit time served (almost 11 months) for Hassan Saied Keshari. We will summarize

here a number of important factors that support such a sentence:

1. The History and Characteristics of the Mr. Keshari : Mr. Keshari is a first-time,

non-violent offender. He is a 48-year old United States citizen and a married father

of 2 young daughters (Sasha, 5 and Sahba, 13). As explained in more detail below,

he has been and can be again a productive member of society.

2. Cooperation : Mr. Keshari immediately confessed upon his arrest, without a lawyer

present. He also agreed to plead guilty and cooperate at the outset of the case,

without even pursuing motions to suppress and dismiss. Mr. Keshari also agreed

to forfeit all of the money seized from his business account at the time of his arrest

(approximately $60,000). Mr. Kesharis cooperation (including over 12 debriefings

and testifying before the grand jury) led the co-defendant to plead guilty and also

assisted the government in indicting another case. We will more fully detail Mr.

Kesharis actual cooperation at the sentencing hearing.

3. Familial Circumstances : Mr. Kesharis wife is extremely ill. Her medical records

will be filed under seal, and we will set forth some of those circumstances in this

memo.


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4. The Nature of the Offense and the Need to Avoid Unwarranted Sentencing

Disparities : Mr. Keshari pleaded guilty to a Section 371 conspiracy charge, with

a five year maximum. Each of the substantive counts is to be dismissed at the

sentencing. His advisory guideline range before the filing of a 5K1.1 motion is 46-

57 months. Many defendants, as detailed below, who have undertaken similar or

worse conduct have been sentenced to significantly lower terms.

LAW

As the Court is well aware, district courts are now free from the mandatory nature

of the Federal Sentencing Guidelines. United States v. Booker , 543 U.S. 220 (2005);

Spears v. United States , 2009 WL 129044 (Jan. 21, 2009). See also United States v.

Ranum , 353 F. Supp 2d 984 (E.D. Wis. 2005) (Adelman, J.) (holding that Booker was not

an invitation to do business as usual). In fact, the guidelines are not even presumptively

reasonable: the guidelines are not only not mandatory on sentencing courts; they are also

not to be presumed reasonable. Nelson v. United States, 2009 WL 160585 (Jan. 26,

2009); United States v. Agbai , 497 F.3d 1226 (11th Cir. 2007) (trial courts are not

permitted to presume that a guideline sentence is reasonable).

In particular, the Eleventh Circuit repeatedly has affirmed below guideline

sentences after Booker . United States v. Irey, 2009 WL 806860 (11th Cir. March 30, 2009)

(affirming variance from level 43 (life) to 210 months in utterly gruesome case

recognizing that sentencing is the most difficult job a district judge performs); United States

v. Anderson , No. 07-11848 (11 Cir. February 28, 2008) (affirming sentence of probationth

for white collar defendant where guidelines were 18-24 months and prosecutor was


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requesting 18-month sentence, explaining that after Gall district courts had wide discretion

at sentencing) ; United States v. McBride, 511 F.3d 1293 (11th Cir. 2007) (affirming

variance from 151-188 months to 84 months in child porn case); United States v. Clay , 483

F.3d 739 (11th Cir. 2007) (affirming 60 month sentence even though guidelines were 188-

235 months based on post-offense rehabilitation) ; United States v. Mathis, 186 F. Appx

971 (11th Cir. 2006) (50% variance from top end of guidelines affirmed in Hobbs Act

extortion and obstruction of justice case); United States v. Gray , 453 F.3d 1323 (11th Cir.

2006) (affirming 72 month sentence even though low end of guidelines were 151 months,

more than double sentence imposed); United States v. Halsema , 180 F. Appx 103 (11th

Cir. 2006) (unpublished) (affirming 24 months sentence even though guidelines were 57-

71 months); United States v. Williams , 435 F.3d 1350 (11th Cir. 2006) (90 months

imprisonment was sufficient, but not greater than necessary to punish, deter, and

rehabilitate defendant even though low end of guidelines was 188 months).

As Booker makes clear, the Court must consider all of the factors set forth in 18

U.S.C. 3553(a), which provides that:

The court shall impose a sentence sufficient, but not greater than necessary. . . .

The court, in determining the particular sentence to be imposed, shall consider

(1) the nature of the circumstances of the offense and the history andcharacteristics of the defendant;

(2) the need for the sentence imposed

(A) to reflect the seriousness of the offense, to promote respect for thelaw, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;


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(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocationaltraining, medical care, or other correctional treatment in the mosteffective manner;

(3) the kinds of sentences available;

(4) the applicable category of offense committed by the applicable category of defendant as set forth in the Guidelines . . . .

(5) any pertinent [Guidelines] policy statements . . . .

(6) the need to avoid unwarranted sentencing disparities among defendants withsimilar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

APPLICABLE SECTION 3553 FACTORS

1. The History and Characteristics of the Mr. Keshari : Mr. Keshari is a first-time,

non-violent offender. He is a caring and loving man, who is adored by his two young

daughters (Sasha, 5 and Sahba, 13). His wife and family depend on him as he is the hub

of his family; he is the sole breadwinner and the primary caretaker of his wife and their two

children. Unfortunately, because they live in California and because Mrs. Keshari is sick,

he has been unable to see his family for the past eight months.

He graduated from Arizona State University with a B.S. in 1985. After his release

from prison, he will be employed at Mother Earth Energies, using his education to

positively impact the environment by upgrading existing properties with the highest energy

efficient standards.

Mr. Keshari always has treated everyone involved in this case from the agents,

to the prosecutor, to his lawyers, and this Court with utmost respect and courtesy. Mr.


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Keshari is a soft-spoken gentle man, who is well-liked by just about everyone.

Mr. Keshari is filing under separate cover the many letters of support from his family

and friends. We hope the outpouring of support is evident from these letters. We also plan

on calling some of these family members to briefly speak at Saieds sentencing hearing,

and we remind the Court of the bail hearing it conducted where it heard the heartfelt

stories of some of these individuals. Here is a sample of what people had to say about

Saied in the letters submitted to the Court:

< He is truly a good man and wonderful, loving husband and father as well as my

best friend. He is always there to lend a helping hand or a sympathetic ear to

whoever needs it. Saied has truly been my knight in shining armor. Sheri

Taromi Keshari (wife)

< I never met a man more devoted to his family than Saied. Rahele Atabaki (wifes

cousin)

< Saied is considerate, helpful, honest and a gentle human being. He is always there

for people who need him. Masssoud Dehdashti (family friend)

< Saied is a genuinely kind and responsible person with a great sense of humor.

Saeed Rahmanian (childhood friend)

< He exhibits kindness and responsibility and his absence in unbelievable. Malek

Taj Rahimi Keshari (sister)

< He has been a respected and well liked member of our community. Saied is seen

by everyone as an honorable man, dedicated father and husband, who has spent

his life supporting and taking care of his family. Sivash Barmand (friend)


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< Words alone cannot explain the impact of his presence on so many lives. Abe

Kani (cousin)

< Uncle Saied also played a significant ethical and moral role in our development;

he taught me and my cousin Ali the proper and courteous ways... Sanjar Taromi

(nephew)

< He has a pure generous heart and gives more of himself than he takes from

others. Gita Dehnad (extended family)

2. Cooperation :

Mr. Keshari immediately confessed upon his arrest, without a lawyer present. He

pleaded guilty months before his co-defendant, saving the Court and the Government quite

a bit of time. He cooperated at the outset of the case, without filing motions or sending

letters to the Court. He has been debriefed at least 12 times, spending many hours with

the agents and the prosecutor. He has been thoroughly debriefed and has been truthful

with the government, who has relied on him for helpful information. He testified before the

grand jury. As noted above, his cooperation led to the co-defendants plea and has

assisted in a separate indictment against others. We will more fully detail Mr. Kesharis

actual cooperation at the sentencing hearing.

3. Familial Circumstances :

A lengthy prison sentence for Saied may irreversibly deteriorate Mrs. Kesharis

already severe and delicate medical conditions. Mrs. Keshari suffers from fibromyalgia,

c-spine degenerative disk disease, chronic neck pain, anxiety, irritable bowl syndrome and

small bowel bacteria. See Medical records, Letter from Barbara Finzen, M.D. Mrs.


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Kesharis health problems limit her ability to care for her two young daughters. As a result,

Saied Keshari has been the primary caretaker of the two girls. Mrs. Kesharis physical

condition has continued to worsen since her husbands incarceration. See Medical

Record, Letter from Dr. John J. Jolley, M.D. It has also taken a toll on her mental state and

her ability to raise and interact with her young children. Family therapist, Pamela

Sweeney, explains that Sheri has been extremely depressed and anxious, highly

irritable, and on most days barely getting out of bed. See Letter from Pamela Sweeney,

dated February 9, 2009. She also suffers from post traumatic stress disorder (PTSD)

related to a childhood trauma and Mr. Kesharis arrest has exacerbated this condition.

Testing has revealed that Mrs. Keshari has a major psychological impairment. Id. She

still cannot work outside the home and is presently working on trauma resolution

techniques.

Both of the Keshari children are presently being treated by the Family Service

Agency in Marin, California. Sahba Keshari, age twelve, has been diagnosed with an

adjustment disorder, depression and anxiety. She was found to have severe conduct and

attention problems related to fathers incarceration and mothers inability to care for her

and her sister. Psychologist Sherrin Packer-Rosenthal explained that Ms. Kesharis health

problems have made parenting difficult and as a result, there has been a role reversal

between mother and daughter, with Sahba acting as the mother and protective older sister.

Sahba explained that her mother is severely depressed, lost 20 pounds since Mr. Kesharis

arrest, and has a low energy level. Sahba clearly feels a loss of family and is working on

developing resiliance skills to decrease her depression and anxiety. See generally


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Psychological Assessment of Sahba Keshari, dated 1/14/09 by Sherrin Packer-Rosenthal.

Sasha Keshari, age 5, has also been diagnosed with adjustment disorder with mixed

disturbance of conduct. She suffers from severe sleep disturbances, and is clinging,

oppositional and argumentative. These conditions have occurred because of her fathers

absence who she believes is in Miami for work. Nevertheless, Sasha still observed her

fathers arrest at the Miami International Airport and continues to have vivid traumatic

flashbacks of those events. According to Mrs. Keshari, Sashai often cries for her father

at night, and has a recurring dream of monsters coming to get her since she watched her

father getting handcuffed. Sasha has begun to act out and is often has uncontrollable fits.

To make matters worse, Mrs. Kesharis father was diagnosed with cancer this month,

further exacerbating the situation. The impact on Mr. Kesharis arrest has been devastating

particularly in light of their mothers physical and emotional state and her inability to care

for them.

For the sake of his wife and children, Mr. Keshari has already started preparing for

his life outside of the federal detention center. Mr. Kesharis brother-in-law, Siamek

Taromi, will employ Mr. Keshari at his company, Mother Earth Energies. Indeed, several

family members will be working together on a new green initiative, which will be a division

of Mr. Taromis construction/building business. Mr. Kesharis engineering background will

be instrumental in upgrading existing properties to the highest energy efficient standards.

Several family members have sent him books about the new company and the green

initiative so he can hit the ground running upon his release.

Considering the need for Saied to provide Mrs. Keshari constant medical care, the


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important daily role that Saied plays in caring for his two young children given his wifes

debilitating medical conditions, in addition to the arguments presented throughout this

memorandum, a sentence of credit time served is sufficient but not greater than necessary.

4. The Nature of the Offense and the Need to Avoid Unwarranted SentencingDisparities :

Title 18 U.S.C. 3553(a)(6) mandates that the Court consider the need to avoid

unwarranted sentencing disparities among defendants with similar records who have been

found guilty of similar conduct. The proposed sentencing range in this case is

unwarranted when compared to sentenced meted out in cases involving criminal conduct

equal or more severe than alleged in this case. In such cases, similarly situated

defendants have been sentenced significantly below the Guideline ranges recommended

in the PSI:

U.S. Aircraft Parts to Iran - Mohammad Fazeli, a naturalized U.S. citizenfrom Iran, pled guilty to violating one count of 50 USC 1701-1705,International Emergency Economic Powers Act. The ICE investigationrevealed that Fazeli attempted to unlawfully export 103 pressure sensors toIran, which are applicable to black box data recording devices for aircraft.Mr. Fazeli was sentenced to 12 months incarceration . United States v.Fazeli, 06-Cr-00185 (C.D. Cal. 2006).

U.S. Fighter Jet Components to Iran - George Charlez Budenz, a formalnaval officer, pled guilty to illegally exporting military aircraft components toIran, including engine parts for the US F-5 fighter jet, the T-38 militarytraining jet, and Chinook military helicopters. Budenz was sentenced to 12months incarceration . Untied States v. Budenz, 05-Cr-01863 (S.D. Cal.

2005).U.S. Missile and Fighter Jet Components to Iranian Arms Network Several U.S. companies had illegally exported thousands of missile andfighter jet components to Multicore, an Iranian front company in London thatprocures weapons systems worldwide directly for the Iranian military. Among


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the items exported were components for U.S. HAWK missiles, F-14 fighter jets, F-5 fighter jets, F-4 fighter jets, C-130 military aircraft, military radarsand other equipment. Agents arrested Multicore officers Saeed Homayouniand Yew Ling Fung on arms export violations. The storage facility wassearched and thousands of aircraft and missile components were found

bound for Iran via Singapore. Both men pled guilty. Homayouni wassentenced to 24 months incarceration and Fung to 8 monthsincarceration . United States v. Homayouni, 00-Cr-03843 (S.D. Cal. 2000) .

U.S. Fighter Jet Components to Iran - Reza Mohammad Tabib pled guiltywillfully attempting to export and ship from the United States to Iran. Tabiband his wife sent F-14 parts through Germany and the UAE to arrive in Iran.

A search of the Tabibs home revealed more than 13,000 aircraft parts,including military hardware for different aircraft including the F-14. Theagents also intercepted F-14 maintenance kits that the couple was sendingto Iran prior to their arrest. Tabib was sentenced to 24 monthsincarceration . United States v. Tabib, 06-Cr-00025 (C.D. Cal. 2006) .

U.S. Fighter Jet and Military Helicopter Components to Iran - CamneticsManufacturing Corporation in Utah and its vice president, William Manning;Equipment and Supply International of N. C. and its chief Andrew Adams; aswell as Rick's Manufacturing and Supply Company of Okla., and Jami S.Choudhury were charged with violating the Arms Export Control Act for illegally exporting components for F-4 fighter jets, S-65 Sikorsky militaryassault helicopters and other aircraft to undercover ICE agents. Theundercover negotiations indicated that the military components weredestined for Iran. William Manning was sentenced to three years probationand fined $5,000. Andrew Adams was sentenced to three years probationand fined $25,000. Jami S. Choudhury was sentenced to credit time served(3 years) and fined $2,000. United States v. Choudhury, 02-Cr-00261 (E.D.Wis. 2002) .

Sensitive U.S. Technology to Iran Juan Sevilla pleaded guilty to twocounts of violating 50 USC Section 1702: International Emergency EconomicPowers Act; and 1705(b): Iranian Transaction Regulations. Sevilla, thesales director of United Calibration Corp was charged with attempting toillegally export sensitive U.S. technology to Iran in violation of the U.S.

embargo on Iran. Sevilla attempted to export a machine that measures thetensile strength of steel and related software technologies from Calif.,through Chicago, to Iran, in violation of the embargo. Sevilla was sentencedto five years probation . United States v. Sevilla, 04-00171 (N.D.Ill. 2004).

Sensitive Night Vision Technology to Iran - Erik Kyriacou pled guilty to a


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four-count indictment charging him with attempting to illegally exportsensitive Astroscope night vision lenses to Iran. The lenses had been stolenfrom NBC News in New York. Kyriacou was attempting to sell the lenses onthe Internet via e-bay to undercover ICE agents posing as international armsbrokers. Undercover agents informed Kyriacou that the lenses would be

going to Iran in violation of the Iranian embargo and other export laws.Kyriacou agreed to the sale and illegally exported the devices to undercover ICE agents believing that they were destined for Iran. Erik Kyriacou wassentenced to 5 years probation , 4 months house arrest and ordered topay $8,000 in restitution. United States v. Kyriacou, 04-Cr-00265 (E.D. Pa.2004).

Military Patrol Vessels to Iraq - A federal grand jury in Washington, D.C.charged Regard Yakou with violations of the Arms Export Control Act for allegedly brokering the sale of 6 armored patrol boats, worth a total of $11million, to the former regime in Iraq. Yakou pleaded guilty and wassentenced to one year probation . United States v. Yakou, 04-Cr-00290(D.D.C. 2004).

U.S. Night Vision Technology to China - William Wain Lin Lam, pled guiltyin the District of Connecticut to one count of 18 USC 554: Smuggling Goodsfrom the United States. The conviction was the result of an ICE and DefenseCriminal Investigative Service undercover investigation, which revealed thatLam was seeking to purchase and export U.S. Generation III night visiondevices to China . Mr. Lim Lam was sentenced to 14 months incarceration .United States v. Lam, 06-Cr-00290 (D. Conn. 2006) .

Night Vision Technology and Electronics Components to China - An ICEinvestigation led to the arrest of Zhu and John Chu for conspiring to violatethe Arms Export Control Act (AECA): 22 USC 2778 and 18 USC 371 for their efforts to obtain U.S. origin Generation III night vision equipment, militarygrade power converters and traveling wave tubes used in satellite and radar applications for export to China. On September 28, 2005, Zhao Xin Zhu wassentenced to 24 months imprisonment after pleading guilty to one countof conspiracy, 18 USC 371. United States v. Zhaoxin, 04-Cr-10156 (D. Mass.2004).

Missile Components to China Zhan Gao was sentenced in the EasternDistrict of Virginia for illegally exporting sensitive U.S. technology withpotential military applications to China. The technology exported by Gaocould be used in missile guidance and airborne battle management systems.Gao and her husband, Donghua Xue, pleaded guilty and agreed to forfeitroughly $590 thousand that they had received from China as payment for the


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exports. Gao received a sentence of 15 months, including 7 monthsimprisonment followed by 8 months community confinement. United States v. Gao, 03-Cr-00333 (E.D. Va. 2003).

Military Equipment to Honduras - On August 18, 1999, Peter L.

Appelbaum, president of Pacorp, Inc., Miami, Florida, pled guilty in thisdistrict to charges of violating the Arms Export Control Act and theInternational Emergency Economic Powers Act by illegally exporting defensearticles and crime control equipment to Honduras without the required StateDepartment and Commerce Department licenses. The exported itemsincluded night vision equipment subject to the International Traffic in ArmsRegulations, handcuffs, shackles, fingerprint powders, and dyes subject tothe EAR. Mr. Appelbaum was sentenced to five years probation. United States v. Appelbaum, 99-Cr-00530 (S.D. Fla. 1999).

These analogous arms embargo cases should guide the imposition of a reasonable

sentence by this Court. By the time of his sentencing, Mr. Keshari will have spent almost

11 months in prison. Accordingly, if the Court sentences Mr. Keshari to a year-and-a-day,

a sentence in line with the above cases, he can start rebuilding his life.

SPECIFIC OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

We respectfully object to the following paragraphs in the PSI:

1. Pages 5-9, 10-31: Although these paragraphs have no impact on the ultimatesentence, we note that they go far beyond the facts presented as the factual basisfor the plea and what the parties agreed to.

2. Page 18, 84: The PSI incorrectly states that Mr. Keshari has $59,766.00 in aWells Fargo bank account. This money was seized by the government at the timeof Mr. Kesharis arrest and he has agreed to forfeit this money.

3. Page 19, 84: The probation office has mistakenly indicated that the Bank of

America Visa debt balance is $2,400. The actual debt balance is $24,000.Moreover, the following expenses are NOT listed in the PSI:

Mortgage payment for 848 Diablo Ave.: $2,285.00/mo.Condominium Association Fee: $350.00/mo.Property Taxes for 848 Diablo Ave.: $5,000.00/year


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Property Taxes for 319 Fairway Drive: $9,000.00/year Homeowners Insurance: $1,200.00/year Health Insurance: $470.00/mo.

4. Page 20, 88: The probation department reports that the fair market value of Mr.Kesharis home is $881,000.00. As of April 16, 2009, the same website used byprobation, Zillow.com, listed the FMV price as $838,000.00. Even that is too highas the last two comparable homes in that neighborhood sold for $750,000.00 and$680,000.00. Given the current real estate market in California it is more likely thatthe home is worth between $650,000.00 and $700,000.00.

6. Page 21, 93: The Defendant is the sole breadwinner for his family. He has twominor children who live with Mrs. Keshari in their marital home. As a result of hisarrest, and not having Mr. Kesharis income to cover expenses, the family hasutilized credit cards and savings. Mr. Keshari simply does not have the ability topay a fine given the present familial circumstances. The government agrees thatno fine should be imposed .


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CONCLUSION

We respectfully suggest that a sentence of credit time served is sufficient but not

greater than necessary under Section 3553. We are hopeful that the above memo has

given this Court a sense about Mr. Kesharis character. We look forward to presenting

additional facts to the Courts attention at the sentencing hearing.

Respectfully submitted,

D AVID O SCAR M ARKUS , PLLC169 East Flagler Street, Suite 1200Miami, FL 33131Tel: (305)379-6667Fax: (305)379-6668www.markuslaw.com

By: /s/ David Oscar MarkusD AVID O SCAR M ARKUS Florida Bar Number [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by

CM/ECF this 17th day of April, 2009.

/s/ David Oscar MarkusDavid Oscar Markus

http://www.markuslaw.com/http://www.markuslaw.com/

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