IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 5, 2009
UNITED STATES OF AMERICA,
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 criminal laws without providing "intelligible principles" upon which to base the same.*fn23
This argument, however, has been uniformly rejected by the courts that have considered it.*fn24 The Court finds the rationale of these other courts persuasive and will follow the same.
The Supreme Court articulated in United States v. Touby the limits of a lawful delegation of the power to define criminal conduct.*fn25 By "defin[ing] the specific circumstances in which the President may act and to what extent," IEEPA subjects the Executive's discretion to constraints similar to those found sufficient in Touby.*fn26 Moreover, an additional factor not present in Touby, namely the special power of the Executive to "make determinations regarding foreign policy," weighs heavily in favor of upholding IEEPA.*fn27
Congressional legislation involving foreign affairs "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."*fn28 Therefore, given the intelligible principles in IEEPA constraining the Executive's discretion and IEEPA's relation to foreign affairs, IEEPA does not violate the non-delegation doctrine.
Defendant also contends that Congress has failed to obey its own oversight law requiring periodic meetings to "consider a vote on a joint resolution to determine whether that emergency shall be terminated."*fn29 Defendant asserts that this failure indicates that the Executive's discretion is totally unsupervised and therefore unconstitutional.*fn30
In Beacon Products Corporation v. Reagan, the First Circuit held that the President's declaration of a national emergency with respect to Nicaragua did not automatically terminate even though Congress never met in conformance with § 1622(b).*fn31
In so holding, the First Circuit found that the "shall meet to consider a vote" language of § 1622(b) was meant "to give those who want to end the emergency the chance to force a vote on the issue, rather than to require those who do not want to end the emergency to force congressional action to prevent automatic termination."*fn32 The Court agrees with this construction of § 1622(b) and therefore declines to infer from Congress's failure to meet that the Executive's discretion is either unsupervised or unconstitutional. Hence, the Court is unpersuaded by Defendant's argument that IEEPA is an unconstitutional delegation of Congressional authority and thus, will not dismiss Counts One through Five on that basis. Sufficiency of Counts Six and Seven
Counts Six and Seven of the Superseding Indictment allege, respectively, a conspiracy count and a substantive count of Defendant acting as an illegal agent of a foreign government, namely Iran, in violation of FARA. Defendant contends that these counts should be dismissed as the factual allegations of the Superseding Indictment do not demonstrate that Defendant acted subject to the direction or control of a foreign government or official.*fn33
The Court disagrees. The "true test of the sufficiency of an indictment is not whether it could have been made more definite and certain."*fn34 Instead, an indictment is sufficient if it "'(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.'"*fn35
Here, the Superseding Indictment clearly states that Defendant acted at the direction and control of "various officials of the Government of Iran, including representatives of NPC and RIPI [Research Institute of Petroleum Industry]" and at the direction and control of "Iranian Official #1."*fn36 In response, Defendant first argues that the representatives of NPC and RIPI do not qualify as a foreign government or officials.*fn37 Whether the representatives of NPC and RIPI qualify as foreign government or officials is a factual determination that cannot be made at this time. Second, Defendant contends that the factual allegations do not suggest that Defendant agreed to act subject to the direction and control of Iranian Official #1. An indictment must provide "sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." The Superseding Indictment alleges that Defendant met several times with Iranian Official #1,*fn38 and that Defendant "took steps to coordinate efforts to conduct business in Iran with Iranian Official #1 and other representatives of the Iranian government based in Iran."*fn39 These allegations are sufficient for Defendant not only to invoke double jeopardy but also to prepare his defense, which very well may be that such actions on his part do not translate to Defendant acting subject to the direction and control of Iranian Official #1. Thus, Counts Six and Seven of the Superseding Indictment are sufficiently pleaded and will not be dismissed.
Multiplicity of Counts Nine and Ten
In his second Motion, Defendant seeks to dismiss either Count Nine or Count Ten of the Superseding Indictment as multiplicitous.*fn40 Count Nine of the Superseding Indictment alleges a false statement to IRS Special Agent Christopher Hueston, while Count Ten alleges a false statement to FBI Agent McAllister.*fn41 Defendant argues that because Agent McAllister was present during Agent Hueston's interview of Defendant, Counts Nine and Ten are therefore multiplicitous.*fn42 Although the Third Circuit has not addressed this issue, Defendant cites two cases from the Ninth Circuit*fn43 and one from the Eighth Circuit*fn44 holding that the government may charge separate violations for identical false statements under 18 U.S.C. § 1001 only if (1) the declarant was asked the same question and gave the same answer; and (2) the later false statement further impaired the operations of the government. Without deciding whether to adopt this test, the Court agrees with the District of Columbia Circuit that this Motion would be better resolved post-trial.*fn45 After a record is developed, it will be clear "what statements were made and what acts of concealment were committed, as well as whether the later acts or statements further impaired the operations of government."*fn46 Thus, the Court will dismiss Defendant's Motion to Dismiss Counts Nine and Ten of Superseding Indictment without prejudice and with leave to renew.
An appropriate Order follows.
AND NOW , this 5 th day of January, 2009, upon consideration of Defendant's "Motion to Dismiss Indictment" [Document No. 30], the Government's response [Document No. 41], and Defendant's reply [Document No. 44], and after hearing in court and oral argument thereon, it is hereby ORDERED that Defendant's Motion to Dismiss Counts One Through Seven is DENIED. Upon consideration of Defendant's "Motion to Dismiss Counts Nine and Ten of Superseding Indictment" [Document No. 63] and the Government's response [Document No. 64], it is FURTHER ORDERED that Defendant's Motion to Dismiss Counts Nine or Ten is DENIED WITHOUT PREJUDICE and with leave to renew after the Government's evidence is received at trial.
It is so ORDERED.
CYNTHIA M. RUFE, J.