Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Soleimani

United States District Court, N.D. Georgia, Atlanta Division

September 25, 2019

UNITED STATES OF AMERICA
v.
MASOUD SOLEIMANI, MAHBOOBE GHAEDI, and MARYAM JAZAYERI

          MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

         Defendants Masoud Soleimani (“Soleimani”), Mahboobe Ghaedi (“Ghaedi”), and Maryam Jazayeri (“Jazayeri”), collectively referred to as “defendants, ” are charged in a two-count superseding indictment with knowingly and willfully conspiring to violate the Iranian Transactions and Sanctions Regulations (“ITSR”), in violation of 50 U.S.C. § 1705 and 31 C.F.R. §§ 560.203 and 560.204, and knowingly and willfully attempting to export biological items from the United States to Iran without first obtaining the required authorization from the United States Department of Treasury's Office of Foreign Assets Control (“OFAC”), in violation of 50 U.S.C. § 1705, 31 C.F.R. §§ 560.203, 560.204, and 18 U.S.C. § 2. [Doc. 16].[1] Defendants Jazayeri and Ghaedi have filed motions to sever, [Docs. 92 & 93], which the government opposes, [Doc. 100], and each defendant has filed a motion to dismiss the superseding indictment, [Docs. 77, 87, & 88], [2] to which the government has filed a consolidated response, [Doc. 99].[3] Defendant Jazayeri also has filed a motion to suppress statements, [Doc. 86], and following an evidentiary hearing on June 6, 2019, [4] the parties filed post-hearing briefs, [Docs. 114 & 116].[5] For the reasons that follow, it is RECOMMENDED that Jazayeri and Ghaedi's motions to sever, [Docs. 92 & 93], defendants' motions to dismiss, [Docs. 77, 87, & 88], and Jazayeri's motion to suppress statements, [Doc. 86], be DENIED.

         I. INTRODUCTION

         On October 24, 2018, a federal grand jury in the Northern District of Georgia returned a superseding two-count indictment against defendants. [Doc. 16]. According to the allegations of the superseding indictment, the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1706, “conferred upon the United States President the authority to deal with unusual and extraordinary threats to the national security and foreign policy of the United States, ” and that by Executive Order No. 12170, issued on November 14, 1979, President Jimmy Carter “found that ‘the situation in Iran constitute[d] an unusual and extraordinary threat to the national security, foreign policy and economy of the United States and declare[d] a national emergency to deal with that threat.'” [Id. ¶¶ 1-2 (last alteration in original)]. Subsequently, on March 15 and May 6, 1995, President William J. Clinton issued Executive Order Nos. 12957 and 12959, which prohibited “the exportation, re-exportation, sale or supply, directly or indirectly, to Iran of any goods, technology, or services from the United States or by a United States person, and on August 19, 1997, [] Executive Order No. 13059 [was issued], clarifying the previous orders, ” and these “Executive Orders authorized the United States Secretary of Treasury to promulgate rules and regulations necessary to carry out the Executive Orders.” [Id. ¶ 3]. “Pursuant to this authority, the Secretary of the Treasury promulgated the [ITSR] in October 2012.” [Id.].

         The superseding indictment further explains that 31 C.F.R. § 560.204 of the ITSR prohibits:

the exportation, re-exportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, of goods, technology, or services to Iran or the Government of Iran (with certain limited exceptions), including the exportation, re-exportation, sale or supply of goods, technology or services to a third country knowing that such goods, technology or services are intended for Iran or the Government of Iran, without a license from [OFAC].

[Id. ¶ 4]. It also “forbid[s] a United States person from engaging in any transaction or dealing in or related to goods, technology or services that are exported, re-exported, sold or supplied, directly or indirectly, to Iran or the Government of Iran, without having obtained a valid OFAC license, ” as well as prohibiting “transactions that evade or avoid, have the purpose of evading or avoiding, cause a violation of, or attempt to violate, the ITSR.” [Id. ¶¶ 5-6 (citing 31 C.F.R. §§ 560.203, 560.206)].

         The superseding indictment alleges that Soleimani, who was located in Iran, “identified to defendant [Ghaedi], a Research Assistant Professor at a United States university during the [relevant] time period . . ., the biomedical material he wanted, including biomedical vectors and human growth factors, ” and that Ghaedi “obtained the requested biological material from U.S. companies on behalf of [Soleimani], ” which “were subsequently delivered to [Ghaedi] at the United States university.” [Id. ¶¶ 10(a)-(b)]. Thereafter, Soleimani allegedly “solicited from, and defendant [Jazayeri] agreed to carry, the biological material from the United States for delivery in the Islamic Republic of Iran without first obtaining the required licenses and authorizations from OFAC” and Ghaedi “agreed to and [] shipp[ed the] biological material intended for delivery to Iran to defendant [Jazayeri] at a U.S. address provided by [Jazayeri].” [Id. ¶¶ 10(c)-(d)]. Jazayeri then allegedly “concealed [the] biological material within items that [she] intended to transport to Iran.” [Id. ¶ 10(e)]. The superseding indictment further alleges that “[a]t no time relevant . . . did the defendants . . . receive or possess a license or authorization from the OFAC to export goods . . . to the Islamic Republic of Iran.” [Id. ¶ 7].

         Based on these allegations, the superseding indictment charges in Count One that, “[b]eginning in or about November 2014 and continuing through on or about September 6, 2016, ” the defendants “knowingly and willfully combine[d], conspire[d], confederate[d], and agree[d] with one another and with others known and unknown . . . to commit an offense against the United States[ by] export[ing] goods from the United States to the Islamic Republic of Iran without having first obtained the required licenses and authorizations from the OFAC.” [Id. ¶ 8]. Count Two charges:

Beginning in or about December 2015, and continuing through on or about September 6, 2016, in the Northern District of Georgia and elsewhere, the defendants . . . aided and abetted by one another, knowingly and willfully attempted to export United States origin goods from the United States to the Islamic Republic of Iran, those being vials containing biological material to include HGF - Hepatocyte Growth Factor, Activin A, SCF - Stem Cell Factor(s), Macrophage Colony Stimulating Factor(s), and bFGF - Basic Fibroblast Growth Factor, without having first obtained the required authorization from OFAC, in violation of the [IEEPA], Title 50 United States Code, Section 1705, and Title 31, Code of the Federal Regulations, Sections 560.203 and 560.204; and Title 18, United States Code, Section 2.

[Id. ¶ 12]. Defendants have filed several pretrial motions, [Docs. 77, 86, 87, 88, 92, 93], which are now fully briefed and ripe for ruling.

         II. DISCUSSION

         A. Motions to Sever, [Docs. 92 & 93]

         Defendants Jazayeri and Ghaedi contend that their trials should be severed from each other as well as from Soleimani's trial under Federal Rule of Criminal Procedure 14(a). [Docs. 92 & 93]. In particular, Jazayeri asserts that “[b]ased on the discovery that has been produced to date, it appears that the bulk of the Government's case against [her] relies on three kinds of evidence: the seizure of growth factors from [her] luggage as she attempted to board a connecting flight to Iran, statements [she] made to law enforcement regarding that seizure, and emails exchanged between [her] and [] Soleimani, her former professor and mentor in Iran, ” but that “she did not know taking growth factors to Iran was prohibited” and that while “evidence against [her] at trial will generally be limited to her alleged attempt to take growth factors to Iran in 2016 and her communications with [] Soleimani regarding that conduct, ” the “Government's case against [] Soleimani and [] Ghaedi is significantly broader . . . and will feature substantially more evidence, including evidence that [] Soleimani and [] Ghaedi engaged in many other transactions that did not involve [her] and that they had considerably more knowledge regarding the prohibitions on exporting to Iran.” [Doc. 92 at 1-3]. She therefore asserts that “[b]oth in quantity and quality, there is a stark contrast between the Government's evidence against [her] and its evidence against her co-defendants, creating a substantial risk that [she] will be unduly prejudiced if they are all tried together, ” and that a severance is warranted “[t]o avoid a verdict of ‘guilt by association.'” [Id. at 4-5].

         Ghaedi has also moved to sever her trial from her co-defendants, contending that “the Government's disclosures reflect a lengthy, in-depth investigation into and substantial evidence involving individuals other than [her]; namely, one or both of [her] co-defendants in this case and apparently several unindicted or separately indicted co-conspirators who have no direct ties to [her], ” and that “[i]f offered as evidence in a joint trial, this type of material will rob [her] of her ability to present her defense and/or force her to testify at trial in violation of her Constitutional rights, ” thereby “improperly shift[ing] the burden to her to establish her innocence.” [Doc. 93 at 4 (emphasis omitted)]. In the alternative, Ghaedi requests that, if the Court is not inclined to sever at this stage of the litigation, that it “order the Government to identify the specific evidence they intend to use in their case-in-chief sufficiently in advance of trial for [] Ghaedi to renew this motion, as appropriate, prior to or during trial.” [Id. at 5].

         In its consolidated response, the government argues that severance is not warranted in this case because Jazayeri and Ghaedi's “claims are merely assumptions”; “separate trials for jointly indicted defendants are generally disfavored”; “[i]t is insufficient for Ghaedi and Jazayeri to show that they may suffer some prejudice or that they may have a better chance for acquittal at a separate trial”; “differing levels of culpability among the defendants [do not] justify severance”; and “limiting instructions are the proper tool to prevent against prejudice that does not rise to the level of specific and compelling [prejudice].” [Doc. 100 at 2-4 (citations omitted)]. Ghaedi has filed a reply in support of her motion, in which she reiterates her previous arguments for severance, as well as her alternative request to preserve her right to raise the issue again should it not be ripe for consideration now. [Doc. 111].

         “[T]here is a preference in the federal system for joint trials of defendants who are indicted together.” United States v. Badiki, CRIMINAL ACTION NO. 1:17-CR-342-ELR-AJB, 2018 WL 7283636, at *18 (N.D.Ga. Dec. 31, 2018), adopted by 2019 WL 397991, at *2 (N.D.Ga. Jan. 31, 2019) (citations omitted). However, “[w]here claims are properly joined under Rule 8(a), [6] a court may nonetheless sever them based on Federal Rule of Criminal Procedure 14(a), ” United States v. Obie, CRIMINAL No. 1:18-CR-007-ODE-JKL, 2018 WL 5045630, at *2 (N.D.Ga. Oct. 17, 2018) (footnote added), which provides:

If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.

Fed. R. Crim. P. 14(a). “In deciding a motion for severance, the Court must balance the right of a defendant to a fair trial against the public's interest in efficient and economic administration of justice.” United States v. Denmark, No. 205CR71FTM33DNF, 2005 WL 2755987, at *2 (M.D. Fla. Oct. 25, 2005) (citation and internal marks omitted). “Relief under Rule 14 is available where there is a showing that a joint trial will cause the defendant undue prejudice.” United States v. Underwood, 1:16-cr-306-WSD-2, 2017 WL 2875573, at *8 (N.D.Ga. July 5, 2017) (citations omitted); see also United States v. Philpot, 1:15-cr-00028-WSD, 2017 WL 510892, at *2 (N.D.Ga. Feb. 8, 2017). “More specifically, the Eleventh Circuit has interpreted Rule 14 to require a [d]efendant seeking severance to demonstrate specific and compelling prejudice arising from a joint trial.” Denmark, 2005 WL 2755987, at *2 (citing United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir. 1989)).[7]“The burden on the defendant[s] to show that [they] will suffer prejudice is a heavy one.” United States v. North, 1:16-cr-309-WSD, 2017 WL 5185270, at *4 (N.D.Ga. Nov. 9, 2017) (citation omitted); see also United States v. Greenhill, CRIMINAL No. 1:18-CR-00108-MHC-JFK, 2018 WL 5659933, at *5 (N.D.Ga. Sept. 20, 2018), adopted by 2018 WL 5649898, at *1 (N.D.Ga. Oct. 31, 2018) (citations and internal marks omitted) (“This is a heavy burden, and one which mere conclusory allegations cannot carry.”). “Claimed prejudice can often be addressed by a court by appropriate limiting instructions to assure a jury will consider the charge sought to be severed separately and to not allow evidence or commission of the separate crime to be used in reaching a verdict on the other charge or charges for which the evidence is not relevant.” Philpot, 2017 WL 510892, at *2 (citing United States v. Silien, 825 F.2d 320, 323 (11th Cir. 1987) (per curiam)).

         The Eleventh Circuit has recognized the following types of prejudicial joinder that can require severance under Rule 14:

(1) where the defendants rely on mutually antagonistic defenses; (2) where one defendant would exculpate the moving defendant in a separate trial, but will not testify in a joint setting; (3) where inculpatory evidence will be admitted against one defendant that would be inadmissible against the other; and (4) where the moving defendant will be prejudiced by “spillover” of evidence, which may prevent the jury from sifting through the evidence to make an individualized determination as to each defendant.

United States v. Stokes, CRIMINAL ACTION FILE NO. 1:14-CR-290-TWT-JKL-2, 2018 WL 2171473, at *4 (N.D.Ga. Apr. 18, 2018), adopted by 2018 WL 2151536, at *1 (N.D.Ga. May 10, 2018) (citation omitted). “Severance on any of these grounds is rarely granted, and is, in any event, committed to the sound discretion of the trial court; moreover, the denial of a motion for severance will not be reversed absent a clear abuse of discretion.” Id. (citations and internal marks omitted).

         Jazayeri and Ghaedi contend that they each will suffer prejudice by “spillover effect” “from the volume of evidence against co-defendants and unindicted or separately indicted co-conspirators” that “will almost certainly undermine the jury's ability to render a reliable, individualized judgment” in what they consider to be a complex case. [Doc. 93 at 12-13]; see also [Doc. 92 at 4-5]. They each contend that the evidence the government will rely on to prove its case against them is slight in comparison to the evidence against the other, as well as the third co-defendant in this case, and that they each have a defense that the “others apparently may not, ” that they simply “didn't know.” [Doc. 92 at 2, 4-5; Doc. 93 at 10-11 (emphasis omitted)]. In short, Jazayeri and Ghaedi each contend that the “overwhelming volume and cumulative effect of evidence implicating others . . ., and the general similarity, history, and connectedness of [each of them] with [Soleimani] in this lawsuit, will weigh far too heavily on the minds of jurors as they deliberate and render a decision.” [Doc. 93 at 11]; see also [Doc. 92 at 3-5].

         Despite Jazayeri and Ghaedi's contentions, “severance is not required if some evidence is admissible against some defendants and not others and a defendant is not entitled to severance because the proof is greater against a co-defendant.” United States v. Jones, No. 1:06-CR-140, 2007 WL 712420, at *4 (E.D. Tenn. Mar. 6, 2007) (citations and internal marks omitted); see also United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993) (citations omitted) (“[J]oint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible.”); United States v. Mayfield, Criminal Action No. 2:16-CR-009-RWS-JCF, Criminal Action No. 2:16-CR-0010-RWS-JCF, 2018 WL 2189761, at *2 (N.D.Ga. Mar. 28, 2018), adopted by 2018 WL 2184080, at *1 (N.D.Ga. May 11, 2018) (last alteration in original) (citation and internal marks omitted) (explaining that “[t]o the extent that [d]efendants [were] concerned about the jury's ability to distinguish between the evidence against each [d]efendant and that against his co-defendants, [a] disparity in the evidence admissible against one defendant as compared to his co-defendant is not a sufficient basis for a severance”); United States v. Hill, No. 5:17-CR-22 (MTT), 2018 WL 1441847, at *2 (M.D. Ga. Mar. 22, 2018) (citation omitted) (“holding a joint trial when there is voluminous evidence against other co-defendants does not deny defendants a constitutional right”). Moreover, “[i]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials, ” Harrison v. United States, 577 Fed.Appx. 911, 914 (11th Cir. 2014) (per curiam) (unpublished) (citation and internal marks omitted), and “[t]his case simply is not one where the risk that the jury will not, or cannot, follow instructions is so great that it outweighs the interest in judicial economy served by a joint trial, ” United States v. Shoemaker, Criminal No. 2:11-CR-00038-NBB-DAS, 2012 WL 256520, at *5 (N.D. Miss. Jan. 27, 2012); see also United States v. Baradji, 479 Fed.Appx. 301, 303 (11th Cir. 2012) (per curiam) (unpublished) (citation and internal marks omitted) (“[E]ven in the case of prejudicial spillover, a court's cautionary instructions will ordinarily mitigate the potential spillover effect of evidence of a codefendant's guilt.”). That is, “[d]espite the massive amount of discovery that has been produced and the numerous pretrial motions that have been filed, this case remains a three-defendant case based on a straightforward [conspiracy] scheme, ” and “even if they had made a showing of a risk of prejudicial spillover evidence, [they] have not shown that a limiting instruction would not solve the problem, nor have they overcome the strong presumption that jurors are able to compartmentalize evidence and respect limiting instructions.” United States v. Holland, CRIMINAL ACTION NO. 1:17-CR-00234-AT-CMS, 2018 WL 8838855, at *4 (N.D.Ga. July 9, 2018), adopted by 2019 WL 2560019, at *27 (N.D.Ga. June 21, 2019); see also United States v. Glass, CRIMINAL ACTION FILE NO. 1:16-CR-145-TWT-JKL-5, 2018 WL 5091631, at *2 (N.D.Ga. Mar. 22, 2018), adopted by 2018 WL 5085682, at *1 (N.D.Ga. Oct. 18, 2018) (finding defendant's “concern that a jury [would] be unable to sift through the evidence at trial and make an individual determination of guilt as to him is too generalized to warrant a severance, ” since “[e]ssentially, he expresses a concern present in virtually any multi-defendant conspiracy case where the defendants have disparate levels of alleged participation”). Accordingly, the Court finds that defendants have failed to establish compelling prejudice such that the Court should exercise its discretion and sever their trials from each other and from the trial of their co-defendant. Thus, severance is not warranted, and it is RECOMMENDED that Jazayeri and Ghaedi's motions to sever, [Docs. 92 & 93], be DENIED.

         B. Motions to Dismiss the Indictment, [Docs. 77, 87, & 88]

         “The IEEPA allows the President to exercise authority to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat[.]” United States v. Groos, 616 F.Supp.2d 777, 783-84 (N.D. Ill. 2008) (internal marks omitted) (quoting 50 U.S.C. § 1701(a)). “Specifically, it authorizes the President to regulate . . . prevent or prohibit . . . any . . . importation or exportation of . . . or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States, ” and further provides that any “[w]illful violations, or attempted violations, of any license, order, or regulation issued under the IEEPA lead to fines of not more than [$1, 000, 000], imprisonment of not more than [20] years, or both.” Id. (citation and internal marks omitted) (quoting 50 U.S.C. § 1705(c)).

         The ITSR, “codified at 31 C.F.R. part 560, implement a series of Executive orders that began with Executive Order 12613, which President Ronald Reagan issued on October 29, 1987, prohibiting the importation of Iranian-origin goods and services.” United States v. Akova, CRIMINAL ACTION NO.: 1:12-cr-00220-ELR-JKL-2, 2016 WL 7116127, at *2 (N.D.Ga. Oct. 28, 2016), adopted by 2016 WL 7118273, at *1 (N.D.Ga. Dec. 6, 2016) (citation omitted). “In 1995, President William J. Clinton declared that 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 ordered sanctions prohibiting the export to, financing of, and investment in Iran.” Id. (citations and internal marks omitted). “Pursuant to those orders, the Secretary of the Treasury issued the [ITSR], ” id., which defendants are charged with violating, [Doc. 16].

         In particular, 31 C.F.R. § 560.204 provides:

Except as otherwise authorized pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to May 7, 1995, the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, technology, or services to Iran or the Government of Iran is prohibited, including the exportation, reexportation, sale, or supply of any goods, technology, or services to a person in a third country undertaken with knowledge or reason to know that:
(a) Such goods, technology, or services are intended specifically for supply, transshipment, or reexportation, directly or indirectly, to Iran or the Government of Iran; or
(b) Such goods, technology, or services are intended specifically for use in the production of, for commingling with, or for incorporation into goods, technology, or services to be directly or indirectly supplied, transshipped, or reexported exclusively or predominantly to Iran or the Government of Iran.

31 C.F.R. § 560.204. The ITSR is “administered by the [OFAC], which authorizes and issues licenses for exports subject to the [ITSR].” United States v. Nazemzadeh, Criminal No. 11 CR 5726 L, 2014 WL 310460, at *3 (S.D. Cal. Jan. 28, 2014) (citation omitted). Subject to certain exceptions, the exportation of goods to Iran is prohibited unless expressly authorized by OFAC.[8] Section 560.203 prohibits “[a]ny transaction . . . that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this part, ” as well as “[a]ny conspiracy formed to violate any of the prohibitions set forth in this part[.]” 31 C.F.R. § 560.203.

         Defendants are charged with conspiring to violate the ITSR, in contravention of 50 U.S.C. § 1705 and 31 C.F.R. §§ 560.203 and 560.204, and with attempting to export goods to Iran without first obtaining the required authorization, in violation of 50 U.S.C. § 1705, 31 C.F.R. §§ 560.203 and 560.204, and 18 U.S.C. § 2. [Doc. 16]. Defendants each have moved to dismiss the superseding indictment. [Docs. 77, 87, & 88]. In particular, each moves to dismiss the superseding indictment for failure to state an offense, [Doc. 77 at 3-10; Doc. 87 at 5-11; Doc. 88 at 5-12], and Jazayeri and Ghaedi also have moved to dismiss the superseding indictment on the basis that the ITSR's licensing requirements are unconstitutionally vague, [Doc. 87 at 11-15]; see also [Doc. 94]. The government has filed a consolidated response in opposition, [Doc. 99], and defendants have filed replies in support of their positions, [Docs. 104, 109, & 110].

         1. Failure ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.