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United States v. Vaghari

July 7, 2010

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. The Indictment charges a 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). Vaghari is named in all six counts of the Indictment; Ghaemi is named in Count One.

The Indictment is based on allegations 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..." in violation of an embargo on such shipments. (Indict. ¶ 3.) Specifically, the government avers that defendants Vaghari and Ghaemi shipped products purchased in the United States to co-conspirators in the United Arab Emirates, "all the while knowing that the purchased products were eventually destined for Iran." (Indict. ¶ 12.) The Indictment further alleges that "the co-conspirators... received the goods... in the United Arab Emirates and then caused those products to be delivered to customers in Iran." (Indict. ¶ 13.)

Presently before the Court is Defendant Vaghari's Motion to Preclude the Government from Offering Expert Testimony From Dr. Matthew Levitt at Trial.*fn1 In the Motion, defendants move to preclude Dr. Matthew Levitt, the government's proposed expert witness, from testifying at trial. The Court held oral argument on defendants' Motion on June 28, 2010, and further oral argument and a Daubert hearing, at which the testimony of Dr. Levitt was presented via telephone, on June 29, 2010. At the conclusion of proceedings on June 29, 2010, the Court issued an Order denying defendants' Motion, and providing that it would issue a more detailed opinion at a later date. This Memorandum amplifies and expands on the Court's Order of June 29, 2010.

II. BACKGROUND

By letter to counsel for both defendants, dated May 5, 2010,*fn2 the government advised that it intended to "qualify Dr. [Matthew] Levitt as an expert on efforts to evade U.S. trade sanctions governing trade with Iran." The government averred that Dr. Levitt would "testify that the United Arab Emirates is a location through which technology is often trans-shipped from the West to Iran." According to the letter, Dr. Levitt would "offer both expert and percipient witness testimony about this smuggling activity, as well as assorted observations about the nature of, and facts related to, Iran's government, infrastructure, universities, and industry." Dr. Levitt's resume was attached to the letter.

On June 1, 2010, defendant Vaghari filed the instant Motion to Preclude the Government from Offering Expert Testimony From Dr. Matthew Levitt at Trial. In the supporting Memorandum of Law, Vaghari argued for exclusion of Dr. Levitt's testimony on three grounds:

(1) the government's disclosure failed to satisfy the requirements of Federal Rule of Criminal Procedure 16(a)(1)(G); (2) the government did not demonstrate a proper foundation for such expert testimony under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), and Federal Rule of Evidence 702; and (3) Dr. Levitt's testimony should be precluded under Federal Rule of Evidence 403, due to the danger of unfair prejudice resulting from Dr. Levitt's significant background and experience in the area of international terrorism.

On June 25, 2010, the government provided to counsel for both defendants a revised and expanded expert disclosure pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G), entitled "Summary of Expert Testimony."*fn3 In that document, the government states its intent to elicit testimony from Dr. Levitt relating to: (1) the regime of sanctions which govern United States persons "with respect to the transfer of goods or technology with Iran"; and (2) the modus operandi of trans-shipment of goods to Iran through Dubai, in the United Arab Emirates. Transshipment is defined by the government as the "transfer of goods... via at least one intermediary stop, which is often represented to the seller of the goods as the final destination of the goods."*fn4 The Summary of Expert Testimony details Dr. Levitt's qualifications to testify on these matters, as well as the bases and reasons for his opinions. The Summary does not mention any testimony from Dr. Levitt on "assorted observations about... Iran's government, infrastructure, universities, and industry," as set forth in the government's May 5, 2010 disclosure letter.

III. DISCUSSION

A. Federal Rule of Criminal Procedure 16(a)(1)(G)

As an initial matter, the Court must address defendants' argument that Dr. Levitt's testimony should be precluded due to the inadequacy of the government's expert disclosure under Federal Rule of Criminal Procedure 16(a)(1)(G). Rule 16(a)(1)(G) provides: "At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial... The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(a)(1)(G). While the government disclosure of May 5, 2010, was insufficient to satisfy the requirements of Rule 16(a)(1)(G), the June 25, 2010 Summary of Expert Testimony meets the standard set forth in the Rule. Specifically, the Summary of Expert Testimony describes the opinions to be offered by Dr. Levitt, ...


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