IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
August 19, 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 18 U.S.C. § 2; one count of conspiracy to act as an illegal agent of a foreign government in violation of both the Foreign Agents Registration Act ("FARA")*fn3 and 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 18 U.S.C. § 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
Following a jury trial, Defendant was convicted on February 13, 2009 of ten counts of the Superseding Indictment, including: one count of conspiracy to violate IEEPA,*fn5 in violation of 18 U.S.C. § 371; three substantive counts of violating IEEPA, in violation of 50 U.S.C. § 1705(c), and of aiding and abetting the same, in violation of 18 U.S.C. § 2; three counts of making false statements to government officials in violation of 18 U.S.C. § 1001; and three counts of bank fraud in violation of 18 U.S.C. § 1344. Defendant now moves for a new trial pursuant to Federal Rule of Criminal Procedure 33.*fn6 For the reasons that follow, the Court will deny Defendant's Motion.
I. S TANDARD OF R REVIEW
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires."*fn7 The burden lies with the defendant to prove that a new trial should be granted.*fn8 Yet, whether or not to grant a motion for a new trial is a decision "'committed to the sound discretion of the trial court.'"*fn9 The grant of a new trial under Rule 33 is warranted if errors that occurred during trial, either individually or in combination, "'so infected the jury's deliberations that they had a substantial influence on the outcome of the trial.'"*fn10 In other words, the district court will grant a new trial only if a defendant proves (1) that error occurred at trial, and (2) that error had a substantial influence on the verdict.*fn11
II. D ISCUSSION
Defendant argues that four errors occurred during trial that entitle him to a new trial, including: (1) the admission of the tape recordings of Defendant's telephone calls from the Federal Detention Center ("FDC"); (2) the admission of evidence relating to Defendant's activities that occurred before July 24, 2003; (3) the Court's instruction to the jury on willful blindness; and (4) the admission of Government Exhibit 500.*fn12 As Defendant cannot demonstrate that error occurred at trial, the Court will deny his Motion.
A. The Tape Recordings of Defendant's Telephone Calls
Defendant argues that the subpoenas issued by the Government to obtain the recordings of Defendant's telephone conversations violated Rule 17(c) of the Federal Rules of Criminal Procedure, as the Government's subpoenas did not satisfy the test set forth in United States v. Nixon.*fn13 The Court rejected this argument in its February 6, 2009 Order admitting the tape recordings.*fn14 The test enumerated in Nixon applies only when a subpoena is issued seeking production of materials prior to trial.*fn15 The dates returnable of the subpoenas at issue corresponded with trial dates in this matter. Therefore, the Government did not seek pretrial production of the tape recordings and the Nixon test is inapposite. The Court also previously rejected Defendant's argument that the Government improperly used trial subpoenas for discovery.*fn16 Defendant has given the Court no reason to reconsider its original ruling on this matter, and the Court will decline to do so. Thus, the Court did not err in admitting tape recordings of Defendant's telephone conversations from the FDC,*fn17 and will not grant Defendant a new trial on this ground.*fn18
B. Statute of Limitations
The statute of limitations for violations of IEEPA is five years.*fn19 Defendant argues that his trial was tainted by the admission of evidence relating to his activities that occurred outside the statute of limitations for violations of IEEPA, i.e. prior to July 25, 2003.*fn20 Defendant contends that the Government offered no evidence at trial that Defendant's conduct before July 25, 2003 and his conduct after that date were part of a continuing course of conduct.*fn21 The Court disagrees.
The Third Circuit defines conspiracy as "a continuing offense,"*fn22 and has 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.*fn23
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."*fn24
Based on the evidence the Government presented at trial, Defendant's conduct prior to July 24, 2003 is closely tied to Defendant's continuing efforts to sell his ChemPlan software*fn25 to the National Petrochemical Company of Iran ("NPC"). The Government presented evidence that in 1997, Defendant signed an agreement with NPC to sell the ChemPlan software,*fn26 was paid for the same*fn27 and even conducted demonstrations and training in Iran on the ChemPlan software.*fn28 Evidence was also presented that sometime between 1998 and 1999, Defendant sold NPC an update to the ChemPlan software.*fn29 In 2000, Defendant strengthened his relationship with NPC by assisting in the purchase and delivery of computer software at the request of NPC's Chief Executive Office of Information Science Center, Mrs. Fatimeh Parvaresh, an NPC employee with whom Defendant had consistent contact.*fn30
The evidence established that Defendant attended an international conference in Iran in 2000 where he met Mr. Payvandi, the Director of Planning and Development for NPC at the time.*fn31 On June 2, 2000, Defendant wrote Mr. Payvandi a letter referencing a May 27, 2000 fax that included a subscription order form, a chemical list and prices for ChemPlan: OIC.*fn32
Moreover, the letter proposed several options for customizing ChemPlan for NPC, even suggesting the formation of a joint venture.*fn33 The letter ended with Defendant recommending that NPC renew its subscription to ChemPlan: OIC.*fn34
After attending the same conference in 2001, Defendant faxed a letter to Mrs. Ahmari on May 25, 2001 with an offer for a version of ChemPlan that would include the products of interest to NPC.*fn35 In the letter, he referenced a May 8, 2001 meeting between Defendant, Mrs. Ahmari, Mrs. Parvaresh, Mr. Sanglagi and Mr. Ahmadian.*fn36 He also attached subscription order forms for the Windows version of ChemPlan and ChemPlan: OIC.*fn37 At the same time, Defendant also sent Mr. Payvandi a fax on May 28, 2001, discussing not only the 2001 conference, but also encouraging Mr. Payvandi to contact Defendant with respect to "our proposed SAP project."*fn38 In July of 2002, Defendant continued his effort to drum up business in Iran by attempting to print promotional materials in Iran for his ChemPlan software.*fn39
After Defendant's meeting with President Ahmadinejad on September 21, 2006, these efforts finally began to bear fruit.*fn40 Defendant came to an agreement with the Institute for Business Analysis and Consultancy ("IBACO") to construct a Super Absorbent Polymer ("SAP") plant in Iran.*fn41 Moreover, on May 28, 2008, after months of negotiations, Defendant finally convinced NPC to sign another license agreement for the Windows-based version of ChemPlan.*fn42
It is also notable that Mr. Payvandi, Defendant's contact from the 2000 and 2001 conferences, was very much involved in these later negotiations between Defendant and NPC.*fn43 Moreover, in a fax dated February 26, 2008, Defendant himself acknowledged that NPC's August 6, 1997 license agreement was still in effect.*fn44
In an April 30, 1998 letter, Defendant wrote that he hoped close cooperation between himself and NPC would "make our country [Iran] an independent chemical powerhouse in the World."*fn45 In his own words, his hope was "to bring the expert system ChemPlan to Iran, train young Iranians to learn the system and provide service to NPC, NIOC and the private chemical sector and show the World through Internet [sic] what Iranians (not me) can do."*fn46 Defendant hoped to keep Iranian talent in Iran by returning and transferring his knowledge to a younger generation.*fn47 He also hoped to lead a flow of Iranians back to Iran.*fn48
Thus, the scope of Defendant's conspiracy was to bring his technical wherewithal, especially the ChemPlan system, back to Iran for the benefit of that country. Key to accomplishing this goal was Defendant's efforts to sell the ChemPlan system to NPC. He sold the ChemPlan software and an update to NPC in the late 1990's. Most of his subsequent actions were aimed at maintaining NPC's business. He strengthened his relationship with NPC by purchasing Boxscore in 2000 at the request of Mrs. Parvaresh, one of his key NPC contacts. He also attended international forums in Iran where he made further contacts with NPC personnel, to whom he then marketed ChemPlan. In July of 2002, Defendant attempted to print promotional material for ChemPlan in Iran. Thus, prior to July 25, 2003, Defendant clearly worked to sell ChemPlan to NPC. Moreover, he was also prior to July 25, 2003 working on a SAP project.
Although there is no evidence that his efforts yielded any results for a few years, Defendant was quick to take advantage of a meeting with President Ahmadinejad to advance his agenda. With the President's support, Defendant was able to not only sign an agreement with IBACO to build a SAP plant, but also to sell NPC a new version of ChemPlan. Prior to July 25, 2003, Defendant resolved on achieving certain goals for the betterment of Iran. Both prior to and after July 25, 2003, he conspired with others and engaged in acts in furtherance of the same. Although these goals were only accomplished after July 25, 2003, there is no evidence that Defendant ever abandoned or renounced them. Thus, Defendant's conduct before and after July 25, 2003 was part of a continuing course of conduct, and the Court did not err in allowing the jury to consider evidence of Defendant's conduct prior to that date. The Court will not grant Defendant a new trial on this basis.
C. Willful Blindness Instruction
Defendant concedes that the Court gave the Third Circuit's standard jury charge on willful blindness with regard to the five IEEPA counts.*fn49 He contends, however, that this instruction improperly dilutes the knowledge requirement, as it holds "the defendant liable simply for knowing 'something was amiss' rather than for deliberately avoiding inculpatory knowledge."*fn50 In support of this contention, Defendant asserts that "the pattern instruction . . . permits the jury to find willful blindness 'if the evidence shows that there was a high probability that the defendant himself knew something was amiss and that he acted with deliberate disregard for a high probability that illegal activity was occurring.'"*fn51 Yet, the instruction given by the Court did not include this language, and the Court is uncertain from what source Defendant is quoting.*fn52 As the language to which Defendant objects was not used by the Court while instructing the jury, the Court is unpersuaded by Defendant's argument.
Defendant also argues that the Court should not have given the willful blindness instruction because there "is no evidence in the record, nor was there any defense made, of any claim by Dr. Amirnazmi at any time that he was not aware of the IEEPA regulations or he believed they did not exist."*fn53 The Court must agree with the Government that Defendant himself put at issue whether or not he "subjectively believed that his conduct was protected under the 'informational materials' exemption of IEEPA."*fn54 Thus, the Court properly gave the Third Circuit pattern instruction regarding willful blindness, and Defendant is not entitled to a new trial.
D. Government Exhibit 500
At trial, Defendant objected to the admission of Government Exhibit 500, arguing that it was irrelevant and unfairly prejudicial under Federal Rule of Evidence 403. The Court admitted the exhibit over Defendant's objection finding that the exhibit "does show defendant's supposed motives as well as his frame of mind."*fn55 The Court required that the document be redacted and did not allow any reference to Defendant's marital difficulties.*fn56 Defendant continues to argue that the document was admitted in error because it is irrelevant and its potential for unfair prejudice outweighed its probative value. The Court disagrees.
As a general rule, relevant evidence is admissible.*fn57 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."*fn58 This is a very low threshold of admissibility.*fn59 Yet, even if evidence is relevant, it may still be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."*fn60
Government Exhibit 500 is a letter in which Defendant details his loyalty to Iran, his lack of respect for the United States government and his continued support of Iran. Defendant argues that this letter was taken out of context, as it was written to his wife's attorney in the midst of divorce proceedings. Yet, a key issue in this case was whether Defendant acted with criminal intent. As the letter does make it more likely that Defendant acted with criminal intent, it is certainly relevant under Federal Rule of Evidence 402. Moreover, the probative value of this letter was magnified by Defendant's vigorous opposition to the Government's proof of his state of mind, especially given that the letter is in Defendant's own words. Thus, the probative value of Government Exhibit 500 is not substantially outweighed by its potential for unfair prejudice. As the Court did not err in admitting Exhibit 500, Defendant is not entitled to a new trial on this ground.
An appropriate Order follows.