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United States v. Vaghari

August 5, 2009

UNITED STATES OF AMERICA
v.
MOHAMMAD REZA VAGHARI A/K/A "MITCH VAGHARI" MIR HOSSEIN GHAEMI



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

MEMORANDUM

I. INTRODUCTION

On November 13, 2008, the government filed a six-count Indictment against defendants Mohammad Reza Vaghari and Mir Hossein Ghaemi. Vaghari is named in all six counts of the Indictment; Ghaemi is named in Count One. The Indictment charges defendants with conspiracy to violate the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1705 et seq., in violation of 18 U.S.C. § 371 (Count One); three substantive counts of violating IEEPA, in violation of, inter alia, 50 U.S.C. §§ 1701 et seq., and aiding and abetting, in violation of 18 U.S.C. § 2 (Counts Two, Three and Four); naturalization fraud, in violation of 18 U.S.C. § 1425 (Count Five); and possession of immigration documents procured by fraud, in violation of 18 U.S.C. § 1546(a) (Count Six). In particular, the government alleges that "[d]efendants together conducted business under the name Saamen Company , LLC ('Saamen'), . . . through which the defendants conspired to export goods, technology, and services from the United States for ultimate delivery to Iran . . . ." (Indict. ¶ 3.)

Presently before the Court is Defendant Mohammad Reza Vaghari's Motion to Suppress Documents and Other Evidence Seized by the FBI from His Residence.*fn1 In the Motion, defendant moves to suppress: (1) all documentary and other evidence seized by the FBI pursuant to warrantless searches of his residence at any time prior to October 28, 2005; (2) all documentary and other evidence seized from his residence by the FBI without a warrant or consent on October 28, 2005; (3) all documentary and other evidence seized by the FBI from his residence on December 13, 2005 pursuant to a search warrant that was based, in significant part, on information obtained from items seized unlawfully on October 28, 2005; and (4) all additional evidence that is the fruit of the documents and other information seized by the FBI on October 28, 2005 and December 13, 2005. The Court held a hearing and oral argument on defendant's Motion to Suppress on July 23, 2009. For the reasons set forth below, defendant's Motion to Suppress is denied.

II. BACKGROUND

On October 28, 2005, Federal Bureau of Investigation ("FBI") Agent Andrew Pelczar, III, and Sergeant Detective Gregory Seltzer, a Delaware County sergeant detailed to work with the FBI, went to defendant's apartment. (Suppression Hr'g Tr. 55, 64, 143, July 23, 2009.) Defendant is an Iranian citizen with legal permanent resident status. (Id. at 67--68.) The visit was prompted by a complaint received by Sergeant Seltzer from a vendor at Beckman-Coulter, a nationwide manufacturer and distributor of medical equipment. (Id. at 55.) In July 2005, Sergeant Seltzer contacted Agent Pelczar about the complaint. (Id.) Agent Pelczar subsequently spoke with the Beckman-Coulter vendor, who stated that he had been contacted by defendant regarding the purchase of a $100,000 centrifuge. (Id. at 56--57.) The vendor thought that the inquiry was "suspicious" because defendant contacted him only by cell phone, used a Yahoo email account, and initially refused to identify the end user of the centrifuge. (Id. at 57.) Defendant also asked to have the centrifuge delivered to his apartment and was planning to pay for it in cash. (Id. at 57, 64.) The vendor stated that his research revealed additional details that caused him to worry that defendant was planning to ship the centrifuge overseas. (Id. at 57--58.) Moreover, according to the vendor, defendant did not request a warranty or installation, which were included in the $100,000 purchase price. (Id. at 63--64.) Defendant never actually purchased this centrifuge. (Id. at 113.)

At the time of the search in question, Agent Pelczar worked on the Joint Terrorism Task Force; this work involved many investigations of Iranians. (Id. at 54.) Prior to becoming an FBI agent, Agent Pelczar worked for the Defense Intelligence Agency in the counter-terrorism division and the Middle Eastern Military Regional Assessments Division. (Id. at 51--52.) As part of his duties at the Defense Intelligence Agency, he focused on issues involving Iran. (Id. at 54.) Before this work, Agent Pelczar had enlisted in the Army and had attended the Defense Language Institutes for a one-year course in Farsi, the language spoken in Iran. (Id. at 52.)

Agent Pelczar and Sergeant Seltzer went to defendant's apartment on Friday, October 28, 2005, in the early afternoon, dressed "casually." (Id. at 64--65.) According to Agent Pelczar, this was the first time that he or any other agent, to his knowledge, visited defendant's apartment. (Id. at 129--30.) Before knocking on defendant's door, they noticed that his apartment, B-105, was below ground and accessed by stairs from the parking lot. (Id. at 65.) The centrifuge in question weighed approximately 1,000 pounds and would be difficult to deliver to a below-ground apartment. (Id. at 65--66.) Agent Pelczar and Sergeant Seltzer then knocked on defendant's door, introduced themselves, and told him that they had some questions about his business. (Id. at 66.) They showed defendant identification but did not display their weapons at any time. (Id.) According to Agent Pelczar, defendant was "extremely cordial" and ushered them into his apartment. (Id.)

Defendant invited the officers to sit in the living room (Id.) First, the officers asked for identification; defendant retrieved his green card and his driver's license and provided them to the officers. (Id. at 67.) He told the officers that he had entered the United States unlawfully but that he had since lawfully obtained permanent resident status and a green card. (Id.) The officers then asked defendant questions about his work; according to Agent Pelczar, the conversation flowed fairly freely, and defendant was friendly, not uncomfortable or hesitant. (Id. at 67--68.) Agent Pelczar also asked to see defendant's passport; defendant went unaccompanied down a hallway and returned with four passports-a valid Iranian passport and three expired Iranian passports. (Id. at 68--69.) Agent Pelczar asked if he could take the passports and return them to defendant at a later time; according to Agent Pelczar, defendant agreed. (Id. at 69, 71.)

In response to the officers' questions about his work, defendant told them that his company, Saamen, Inc., exported items such as computers and vitamin supplements to the United Arab Emirates. (Id. at 69--70.) Again, defendant went unaccompanied down the hallway and returned with one or two documents describing shipments to the United Arab Emirates. (Id. at 70.) Agent Pelczar testified that defendant volunteered to retrieve the documents and assented when Agent Pelczar asked if he could take them. (Id. at 70--71.) According to Agent Pelczar, the entire conversation was "extremely friendly and professional." (Id. at 71.)

Agent Pelczar testified further that defendant gave permission when they asked if they could look around his apartment and "gave [them] a tour of his apartment." (Id.) In the bedroom, the officers observed "dozens" of orange-colored bottles containing prescription medications. (Id. at 72.) Agent Pelczar thought this was "strange" because defendant did not appear to have any physical or mental infirmities, and he was concerned that defendant could be shipping prescription medications to the United Arab Emirates. (Id. at 72--73, 140.) Defendant explained that the prescription medications were to treat injuries resulting from an automobile accident. (Id. at 74.) Nevertheless, according to Agent Pelczar, when the officers asked if they could take the medications, defendant agreed. (Id.) Agent Pelczar testified further that Sergeant Seltzer asked defendant whether he needed the medications, defendant indicated that there were some that he did not need, and the officers took a sample of the medications but not all of them. (Id.) Defendant provided the officers with a bag for the medications. (Id. at 75.) Sergeant Seltzer also noticed a roll of labels that said "Maximan" and appeared to be for a "male enhancement vitamin." (Id.) Defendant also gave the officers permission to take the roll of labels. (Id.) According to Agent Pelczar, defendant's tone remained friendly throughout. (Id.)

Defendant next led the officers into a second bedroom that he was using as a home office, which, according to Agent Pelczar, was not neatly organized. (Id. at 76, 133.) Agent Pelczar observed "shipping documents, receipts, documents with Farsi writing on them and what appeared to be materials relating to [defendant's] export business." (Id. at 76.) After obtaining permission from defendant, Agent Pelczar used a sweeping motion to gather "a random sampling" of documents off of the top of defendant's desk. (Id. at 77.) The documents had dates ranging from 1996 to 2005. (Id. at 129.) Agent Pelczar testified that all of the documents were found on the top of defendant's desk and that he did not pull documents out of any files. (Id. at 128--29.) According to Agent Pelczar, defendant did not ask to copy any of the documents that were being taken by the officers. (Id. at 80.) The officers then left defendant's apartment, and Sergeant Seltzer left defendant his business card. (Id. at 78--79.) The officers' visit lasted approximately thirty minutes in total-twenty minutes conversing in the living room and ten minutes touring the rest of the apartment. (Id. at 69.)

The officers took handwritten notes during their conversation with defendant. (Id. at 107; Notes of Agent Pelczar & Sergeant Seltzer, Oct. 28, 2005, Ex. D6.) These notes do not mention the seizures of defendant's property and do not contain any reference to defendant's consent to the search or the seizures. (Suppression Hr'g Tr. 119--20, 133--34.) In explanation, Agent Pelczar testified that he and Sergeant Seltzer took notes only during their conversation with defendant and not during the tour of defendant's apartment. (Id.) Agent Pelczar also did not include the seizures in the FBI Form 302 memorializing the interview completed on November 1, 2005. (Id. at 120--21; FBI Form 302, Nov. 1, 2005, Ex. D7.) Two days later, on November 3, 2005, Agent Pelczar completed another FBI 302 Form detailing the medications seized from defendant; it also listed four Iranian passports and "miscellaneous documents." (Suppression Hr'g Tr. 135--36; FBI Form 302, Nov. 3, 2005, Ex. D8.) That Form 302 stated that defendant "gave consent to search his apartment, as well as permission for the interviewing officials to remove certain items." (FBI Form 302, Ex. D8.)

According to Sergeant Seltzer, defendant clearly consented to the officers taking items from his apartment. (Id. at 151.) The officers, however, never informed defendant of his right to refuse to give consent. (Id. at 117--18, 138.) Moreover, Agent Pelczar did not present defendant with an FBI Consent to Search Form, which advises individuals of their right to refuse consent. (Id. at 116--17; Dep't of Justice, Federal Bureau of Investigation, Consent to Search, Ex. D3.) According to Agent Pelczar, he did not have any ...


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