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See Detention Order at 2 (June 26, 2008).1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASENO.08-20612-CR-SEITZ/OSULLIVAN

UNITED STATES OF AMERICA

vs.

HASSAN SAIED KESHARI

________________________________/

CORRECTED

MOTION TO REOPEN PRE-TRIAL DETENTION HEARING

PURSUANT TO 18 U.S.C. 3142(f)

Defendant Hassan Saied Keshari moves pursuant to 18 U.S.C. 3142(f) to reopen the

pretrial hearing in this case. In support, Mr. Keshari states:

On June 26, 2008, following a hearing, the Court ordered Mr. Keshari detained on

the ground that he posed a risk of flight. The Court reached this conclusion even though

Mr. Keshari has been a United States citizen for many years and even though family and

friends represented that they were prepared to post $4.5 million worth of property as

security. The Courts determination was the result of its reliance on several assertions1

made by the government that went unchallenged by Mr. Kesharis then counsel. Having

had an opportunity to further investigate the governments allegations, undersigned

counsel requests the opportunity to revisit the matter of detention.

Case 1:08-cr-20612-PAS Document 35 Entered on FLSD Docket 07/17/2008 Page 1 of 12

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2

The Bail Reform Act provides that a pretrial detention hearing

may be reopened, before or after a determination by the judicial officer, at

any time before trial if the judicial officer finds that information exists that

was not known to the movant at the time of the hearing and that has a

material bearing on the issue whether there are conditions of release that will

reasonably assure the appearance of such person as required and the safety

of any other person and the community.

18 U.S.C. 3142(f). Since the June hearing, the government has charged Mr. Keshari by

indictment. The indictment, as well as undersigned counsels investigation, has brought to

light additional information, described herein, that severely undermines the governments

reasons for claiming that Mr. Keshari poses such a serious flight risk that no bond will

suffice to reasonably assure his appearance.

Background

Hassan Saied Keshari emigrated to the United States from Iran at the age of 16 in

1977. After graduating from high school in New Jersey, he studied aeronautical engineering

at Arizona State University until 1984.

During his more than 30 years living in this country, Mr. Keshari has developed

extensive ties to the United States. His wife, Taromi Shahrzad (Sheri Keshari), and her

family have lived in the United States since she was an infant. Sheris parents, her brother,

and her sister reside in Marin County, California. The Kesharis have two children, Sahba

Keshari, who is 12 years old, and Sasha Keshari, who is 4 years old. Both children are

natural-born United States citizens, having been born in California.


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See Transcript of Pretrial Detention Hearing (hereinafter Transcript) at 7 (June 26,2

2008) (Even if we take away his passports and those of his family members, who also have

Iranian passports as far as I know, but I am not sure about the kids, it is very easy to

replace those Iranian passports.).

See Transcript at 8 (Looking at the guidelines, once we go through all of the3

numbers of these transactions, a good 5 years in jail under the guidelines if we charge him

with all of the transactions that we are seeing . . . .). As we explain below, Mr. Keshari is

not likely to serve five years in prison, even if convicted at trial.

3

The family lives in Novato, California, which is in Marin County just north of San

Francisco. Sahba will begin seventh grade in the fall at San Jose Middle School, the local

public school. The family belongs to the local YMCA whereSahba attends weekly swim

class.Sheri Keshari has a serious illness which prevents her from working outside the

home. Mr. Keshari is responsible for taking care of her and the two children, as well as his

in-laws.

The wild scenario that the government speculated would occurthat Mr. Keshari

would abscond to Iran with his wife and two children is extremely unlikely given that2

neither Sheri nor the children have never known life outside the United States of America.

It is also far-fetched to think Mr. Keshari would abandon his family in California when

even the governments estimate of the sentence is only five years.3

The Keshari family has about $350,000 worth of equity in their home and an

additional $120,000 in a townhouse purchased as an investment about four miles away.

Before starting his own business in 1993, Mr. Keshari held various engineering jobs


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Compare Transcript at 8 ([O]nce his business is shut down, because he is going to4

have a lot of trouble getting back into this business again, our point is there is nothing left

for him here.).

4

throughout the country. Even if he were to be convicted and lose his business, Mr.

Kesharis engineering skills make him readily employable.4

While two of Mr. Kesharis siblings as well as his parents reside in Iran, his sister,

Sohelia Keshari, lives in Orange County, California, and is a permanent resident. She is a

widow living with her four children. In addition, Mr. Keshari has two aunts and four

uncles as well as numerous cousins living in California, Ohio, Tennessee, Texas, and

Georgia.

During the more than three decades that Mr. Keshari has lived in the United States,

he has traveled to Iran only four times. His first trip was in 1998, when he returned to Iran

for the first time in 22 years with his wife shortly after their marriage. In 2004, he took his

family there for a nieces wedding. Two years later, he and his sister went together to see

their parents. Last year, he and his family went to visit his wifes extended family. As there

are no direct flights to Iran, each time he goes, Mr. Keshari must stop in Europe.

As a result of his strong ties to the United States, Mr. Kesharis family and friends

have offered to secure his appearance with their real property in Hawaii and California.

Mr. Kesharis sisters brother-in-law has offered to use some of the equity in his business


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No presumption of flight arises in this case. See 18 U.S.C. 3142(e) & (f)(1).5

Transcript at 18.6

5

to pay a bond. Additionally, the entire family has offered to surrender all passports in their

possession.

Mr. Keshari has no criminal record. He works as a broker of commercial aircraft

parts. The government is in possession of numerous records detailing Mr. Kesharis many

sales of commercial aircraft parts in the United States. He maintains his own inventory at

a warehouse, which the government searched. No parts for military aircraft were found at

Mr. Kesharis warehouse.

Governments Allegations

Before the indictment was filed, the government made certain claims at the June

detention hearing that went unchallenged. As a result, the Court determined that Mr.

Keshari presented such a risk of flight that no conditions would reasonably assure his

appearance. Specifically, the Court concluded that Mr. Keshari would flee to Iran and that5

the goods that he was providing to Iran and the Iranians, which may also be used in

Iranian defense equipment, gives Iranian nationals, as well as perhaps the Iranian

Government a reason to support him should he go to Iran. Now that the indictment has6

been filed, it is evident that this finding was based on the governments exaggerated claims.

Moreover, undersigned counsels review of some of the evidence shows that the


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Transcript at 4.7

6

governments claims are not supported by sufficient evidence to support detention. The

hearing needs to be reopened so that the Court can reevaluate the risk of flight with the

more complete picture now available.

After entry of the detention order, Mr. Keshari was charged by indictment with a

multi-object conspiracy, seven counts of violating executive orders establishing an embargo

against Iran, and two counts of violating the Arms Export Control Act. These last two

counts are predicated on shipments also charged as violations of the Iran embargo. At

bottom, the acts forming the basis of all of these charges total seven shipments of parts,

none of which is a weapon. Rather, the parts that were allegedly exported are common

aircraft parts: fitting assemblies, switching assemblies, harness assemblies, accumulators,

diaphragm seals, and gyros.

The most important discrepancy the indictment reveals is the governments claim

at the June hearing that [a]ll of the items have been confirmed as being listed on a United

States Munitions List. In fact, most of the charges are simple violations of the embargo,7

which prohibits virtually all exports to Iran. Only two of the seven shipments are charged

as violations of the Arms Export Control Act (as well as of the embargo). Those parts were


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An accumulator stores gas under pressure for powering brakes, landing gear, and8

other airplane systems. Wiring harnesses are used in virtually all aircraft (as well as

automobiles) and are simply a group of insulated conductors bound together to protect

them from vibrations, abrasions, and corrosion.

22 C.F.R. 121.1 (Category VIII(h)).9

7

harness assemblies and accumulators. Neither harness assemblies nor accumulators are

weapons.8

Other crucial, unsupported allegations made by the government at the June hearing

related to Mr. Kesharis knowledge and intent. To prove a violation of the Iran embargo,

the government must prove not only that Mr. Keshari caused such shipments but also that

he knew the sellers whom he contacted lacked the requisite license. To prove the Arms

Export Control Act violations, the government must prove that Mr. Keshari knew the parts

were destined for military aircraft. The latter element is not as straightforward as it might

appear. Unlike the schedules of controlled substances which actually list every controlled

substance, the United States Munitions List describes categories of banned parts. The

pertinent provision for this case states that it is illegal to export:

Components, parts, accessories, attachments, and associated equipment

(including ground support equipment) specifically designed or modified for

the articles in paragraphs (a) through (e) of this category, excluding aircraft

tires and propellers used with reciprocating engines.9

Sub-paragraph (a) of Category VIII describes the aircrafts that cannot be exported as

follows:


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22 C.F.R. 121.1 (Category VIII(a)).10

Transcript at 5.11

Transcript at 6 (As far as we know there is also commercial and civilian aircraft12

parts dealings that he has done, but as far as the export, and obviously the exports that the

agents are looking at, the military aircraft parts are all getting exported.).

8

Aircraft, including but not limited to helicopters, non-expansive balloons,

drones, and lighter-than-air aircraft, which are specifically designed,

modified, or equipped for military purposes. This includes but is not limited

to the following military purposes: Gunnery, bombing, rocket or missile

launching, electronic and other surveillance, reconnaissance, refueling, aerial

mapping, military liaison, cargo carrying or dropping, personnel dropping,

airborne warning and control, and military training.10

Thus, the government needs to prove, not only that the allegedly shipped parts were

specifically designed or modified to be used on military aircraft, but also that Mr. Keshari

knew that they were. Given that the charged parts are common to virtually all aircrafts (as

well as many other machines), the government needs to show considerably more than it

has thus far.

One way the government attempted to establish Mr. Kesharis mens rea at the June

hearing was to imply that he had no legitimate income. It represented that [a]s far as the

investigation has deciphered so far, there is no indication of legitimate business going on

at Mr. Kesharis business. The government later retreated from this claim because it is11 12

clear that Mr. Keshari has engaged in substantial legitimate business. The government

searched Mr. Kesharis warehouse and found that it contained commercial and civil aircraft


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Transcript at 4 (All of the sales that are in the complaint are documented by13

e-mail.).

At the hearing, Mr. Kesharis then counsel stated that the hundreds of emails, once

14

reviewed, would show that Mr. Keshari at no point had any criminal intent. Transcript at

11. No agent was examined on what the emails contained or what Mr. Keshari purportedly

said after his arrest. As a result, the governments representations were imbued with much

greater force than they would otherwise have had. Emails sent from Mr. Keshari to his co-

defendant not only fail to establish the necessary mens rea but in fact negate it.

9

parts. None of the parts found at the warehouse were military parts. The government also

seized records of the business which are evidence of the legitimate transactions involving

commercial and civil aircraft parts in which Mr. Keshari has engaged over his 14 years in

business.

Another principal government claim was that email correspondence documented

that all the charged transactions involved parts for military aircraft. In fact, the relevant13

emails show that, if Mr. Keshari in fact brokered military aircraft parts, he did so

unwittingly. It is necessary to reopen the detention hearing so that the Court can review

these emails, as undersigned counsel has now had the opportunity to do. They include14

such statements from Mr. Keshari as:

# I did not know that it was for f4. personally, i do not wish to do anything with

this type of aircraft.


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See 18 U.S.C. 3142(f) (providing that pretrial detainee shall be afforded an15

opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the

hearing, and to present information by proffer or otherwise).

[The defendants] are very familiar with these parts, and they are very familiar16

with the fact that these are military parts. Transcript at 4.

10

# [A]s for the part I asked you to buy for us, I did not know it was for military use

only. I do not wish to buy anything that has military applications only. Thanks for

letting me know.

The emails similarly refute the governments claim that Mr. Keshari knew that the shippers

he contacted lacked the requisite licenses. Undersigned will present these emails to the

Court at the hearing.15

The government also attempted to satisfy its burden with pure speculation, arguing

that Mr. Keshari must have known the parts involved were military aircraft parts because

he had been in the aircraft parts business for 7 years, but possibly longer than that.16

Putting aside the fact that this is rank speculation, the claim implies that a wiring harness

or an accumulator for a military airplane looks completely different than one used on a

commercial or civil airplane. The government has not substantiated (and in all likelihood

cannot substantiate) that claim. It needs to establish Mr. Kesharis knowledge with proof

rather than conjecture.

The government further claimed that Mr. Keshari confessed, but no agent testified

in support of this contention. No statement was provided to counsel or to the Court. In fact,


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Mr. Keshari did not confess to any of the charges against him. He gave an exculpatory

statement upon arrest.

Finally, the government claimed that Mr. Kesharis sentencing exposure was

between five and twenty years. This claim is wrong. Mr. Keshari scores out to lower than

five years, as other similar cases demonstrate. See, e.g., United States v. Reza Tabib, 8:06-Cr-

0025-DOC (sentenced to 24 months for exporting F-14 aircraft and missile parts to Iran;

released on $225,000 appearance bond); United States v. Shahrazad Gholikhan,05-60238-Cr-

Cohn (case involving exporting night vision goggles to Iran; plea vacated after dispute over

whether guidelines range was 06 months or 3037 months; Judge Cohn sentenced

defendant to 29 months and then vacated plea and scheduled case for trial). There are other

similar cases demonstrating that the governments claims regarding Mr. Kesharis

sentencing exposure were exaggerated at the bail hearing.

Conclusion

Mr. Keshari, a U.S. citizen with no prior criminal history, should not be detained.

His wife and two young children need him. The Courts decision was predicated on a

number of overstated claims, regarding both the strength of the governments evidence

and Mr. Kesharis background.


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WHEREFORE the Court should reopen the pretrial detention hearing pursuant to 18

U.S.C. 3142(f) so that its decision to incarcerate Mr. Keshari pending trial can be revisited

in light of the newly filed indictment and newly discovered evidence.

Respectfully submitted,

____________________________

David Oscar Markus

Fla. Bar No. 119318

Robin KaplanFla. 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 15,

2008, on AUSA Melissa Damian.

___________________________

David Oscar Markus


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