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United States v. Amirnazmi

January 5, 2009

UNITED STATES OF AMERICA,
v.
ALI AMIRNAZMI, DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION & ORDER

On July 24, 2008, the Government filed an Indictment in this Court against Defendant Ali Amirnazmi.*fn1 The Indictment charged Defendant with ten counts, including one count of conspiracy to violate the International Emergency Economic Powers Act ("IEEPA"),*fn2 in violation of 18 U.S.C. § 371; four substantive counts of violating IEEPA, in violation of 50 U.S.C. § 1705(c), and of aiding and abetting the same, in violation of § 2; one count of conspiracy to act as an illegal agent of a foreign government in violation of the Foreign Agents Registration Act ("FARA")*fn3 and in violation of 18 U.S.C. § 371; one substantive count of acting as an illegal agent of a foreign government, in violation of 18 U.S.C. § 951, and of aiding and abetting the same, in violation of § 2; and three counts of making false statements to government officials in violation of 18 U.S.C. § 1001. A Superseding Indictment was filed on October 2, 2008, charging Defendant with three additional counts of bank fraud in violation of 18 U.S.C. § 1344, and supplementing the original Indictment with further factual allegations.*fn4

Defendant now moves to dismiss portions of the Superseding Indictment against him. He filed his first Motion on September 15, 2008, seeking the dismissal of Counts One through Seven of the Indictment.*fn5 Defendant later filed a second Motion to dismiss either Count Nine or Count Ten of the Superseding Indictment as multiplicitous.*fn6 For the reasons that follow, the Court will deny both of Defendant's Motions.

Statute of Limitations

The statute of limitations for violations of IEEPA and of FARA is five years.*fn7 As a result, Defendant argues that the portions of the Superseding Indictment referencing conduct that occurred more than five years before Defendant's Indictment was filed should be dismissed as barred by the statute of limitations.*fn8 The Superseding Indictment does include allegations of conduct occurring prior to July 24, 2003, and beyond the relevant statute of limitations. Dismissal of these portions of the Superseding Indictment would be justified unless the Government can demonstrate that Defendant's actions prior to July 24, 2003 were part of a continuing course of conduct with his actions occurring thereafter.*fn9

With regard to the conspiracy charges against Defendant, the Third Circuit defines conspiracy as "a continuing offense."*fn10

The Third Circuit has also held that a jury can consider all of defendant's actions in furtherance of a conspiracy so long as "the conspiracy, as contemplated in the agreement as finally formulated, was still in existence . . . [and] at least one overt act in furtherance of the conspiracy was performed" within the period of limitations.*fn11

Thus, "the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy."*fn12

As alleged in the Superseding Indictment, Defendant's conduct prior to July 24, 2003 is closely tied to Defendant selling the National Petrochemical Company of Iran ("NPC") a license to his ChemPlan software.*fn13 Specifically, on November 26, 1996, Defendant received a fax from NPC with inquiries regarding method of payment.*fn14 Defendant signed a licensing agreement with NPC on August 6, 1997.*fn15 On or around June 1999, Defendant delivered ChemPlan software updates to NPC.*fn16 On August 1, 1999, Defendant sent an electronic mail message requesting an opportunity to brief NPC on ChemPlan.*fn17 Defendant confirmed via an August 5, 2000 fax that NPC received computer software he had sent.*fn18

On or around July 18, 2002, Defendant paid for the printing of materials to promote ChemPlan in Iran.*fn19 The Superseding Indictment also alleges that Defendant lied to a United States government official on July 30, 2004 about his Iranian transactions, in what the Government claims was an attempt to conceal the same.*fn20

Finally, the Superseding Indictment alleges that on or about May 28, 2008, a date clearly within the statute of limitations, Defendant signed an agreement with NPC for the use of the ChemPlan database and software system in exchange for a yearly monetary payment.*fn21

It is significant that Defendant's actions before July 24, 2003 are all related to Defendant selling NPC the use of ChemPlan, and that an agreement to that same effect was signed by Defendant and NPC as recently as May 28, 2008. The evidence at trial may shed additional light on whether Defendant's actions prior to July 24, 2003 were part of the same conspiracy as his later actions. Nevertheless, at this time, based upon the allegations of the Superseding Indictment, Defendant's actions prior to July 24, 2003 are part of a single conspiracy, and part of a course of continuing conduct. Hence, the Court will not dismiss the portions of the Superseding Indictment's conspiracy counts alleging wrongful conduct before July 24, 2003. Moreover, as Defendant's actions prior to July 24, 2003 were part of a continuing course of conduct, the Court will not dismiss the portions of the Superseding Indictment's substantive counts also alleging wrongful conduct before July 24, 2003.

Constitutionality of IEEPA

Defendant asserts that Counts One through Five alleging violations of IEEPA should be dismissed because the IEEPA regulations constitute an unconstitutional delegation of Congressional authority to the Executive branch.*fn22 Defendant argues that IEEPA delegates unbridled discretion to the Executive to promulgate regulations amounting to ...


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