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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASENO.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 1 of 5

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The governments vague claim gave a gravely distorted picture of a dedicated arms1

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.

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knew the parts were for military aircraft. In fact, there were only seven shipments and1

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.


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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


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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


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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


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