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United States v. Amirnazmi

August 19, 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 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 ...


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