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This statute provides:1

If a person is ordered detained by a magistrate judge, or by a person other than a

judge of a court having original jurisdiction over the offense and other than a Federal

appellate court, the person may file, with the court having original jurisdiction over

the offense, a motion for revocation or amendment of the order. The motion shall be

determined promptly.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASENO.08-20612-CR-SEITZ/OSULLIVAN

UNITED STATES OF AMERICA

vs.

HASSAN SAIED KESHARI

________________________________/

MOTION TO REVOKEPRE-TRIAL DETENTION ORDER AND,

ALTERNATIVELY, APPEAL OF ORDER DENYING

MOTION TO RE-OPEN PRE-TRIAL DETENTION HEARING

Pursuant to 18 U.S.C. 3145, Hassan Saied Keshari moves to revoke the magistrate judges1

Detention Order [D.E. 15], entered on June 26, 2008. In the alternative, Mr. Keshari appeals the

Order Denying Kesharis Motion to Re-open the Pre-trial Detention Hearing [D.E. 39], entered July

22, 2008, and requests that the District Court direct the magistrate judge to re-open the pre-trial

detention hearing pursuant to 18 U.S.C. 3142(f). In support of this relief, Mr. Keshari states:

Course of Proceedings

On June 19, 2008, the United States brought a criminal complaint alleging that there was

probable cause to believe that Mr. Keshari was involved in a scheme to export aircraft parts to Iran

in violation of the Iranian embargo and the Arms Control Export Act. The following day, agents

Case 1:08-cr-20612-PAS Document 44 Entered on FLSD Docket 07/29/2008 Page 1 of 24

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Mr. Kesharis 12-year-old cries in her sleep and his 4-year-old has night terrors and has2

asked why her father is in a dungeon and whether he is dead.

The government argued in opposition to the Motion to Re-open the Pre-trial Detention3

Hearing that it may supersede the indictment. However, a detention order can be based only on the

nature and circumstances of the offense charged. 18 U.S.C. 3142(g)(1) (emphasis added).

2

arrested Mr. Keshari at Miami International Airport as he alighted from a transcontinental flight with

his family. The Kesharis were in Miami for a family vacation. Following the midnight arrest, which

traumatized Mr. Kesharis two young daughters, the agents interrogated Mr. Keshari for three and2

a half hours.

The government searched Mr. Kesharis warehouse and found that it contained commercial

and civil aircraft parts. None of the parts found at the warehouse were military parts. The

government also seized records of the business which are evidence of the legitimate transactions

involving commercial and civil aircraft parts in which Mr. Keshari has engaged over his 14 years in

business.

On June 26, 2008, before an indictment had been brought against Mr. Keshari, the magistrate

judge conducted a pretrial detention hearing. The government made certain claims at the June

detention hearing that later proved to have been significantly overstated. Without specifically

identifying the items that Mr. Keshari was alleged to have exported, the government claimed that

[a]ll of the items have been confirmed as being listed on a United States Munitions List. Transcript

at 4. The indictment, as discussed below, would not reflect this. The government also claimed that3

Mr. Keshari had made 3 trips to Iran in the last two years and admitted during his post arrest

interview at least two of the trips to Iran in the last 6 months. Transcript at 7. In fact, Mr. Keshari


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3

had made only four trips to Iran in all 32 years of living in the United States and only two of those

trips took place during the last two years.

The government attempted to establish Mr. Kesharis mens reaby implying that he had no

legitimate income. It represented that [a]s far as the investigation has deciphered so far, there is no

indication of legitimate business going on at Mr. Kesharis business. Transcript at 5. Only minutes

later, the government retreated from this claim because it is clear that Mr. Keshari has engaged in

substantial legitimate business. Transcript at 6 (As far as we know there is also commercial and

civilian aircraft parts dealings that he has done, but as far as the export, and obviously the exports

that the agents are looking at, the military aircraft parts are all getting exported.). Nonetheless, the

government maintained and the magistrate judge accepted that Mr. Keshari would be unable to

support himself even if here were ultimately acquitted of all charges, suggesting he would have no

choice but to leave the country. Transcript at 8 ([O]nce his business is shut down, because he is

going to have a lot of trouble getting back into this business again, our point is there is nothing left

for him here.). This claim is refuted by Mr. Kesharis extensive history of employment in the United

States as an engineer as well as by common sense. It is obviously easier for an American citizen to

support himself here than in a country he last lived in three decades ago.

Another principal government claim was that e-mail correspondence documented that all

the charged transactions involved parts for military aircraft. Transcript at 4 (All of the sales that are

in the complaint are documented by e-mail.). The e-mails, once reviewed by defense counsel, turned

out to be far less unequivocal than the government suggested. Also, some of them, as the government

belatedly conceded in its memorandum opposing re-opening the detention hearing, are clearly


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The governments own theory of the case, which the indictment now makes clear, is that Mr.5

Keshari was a broker or middleman between individuals wanting to purchase aircraft parts in Iran

and sellers of such parts in the United States. The government vaguely claimed at the detention

hearing that Mr. Kesharis operation was large-scale. However, the indictment belies any such

suggestion in that it charges only seven shipments over a 19-month period.

5

He travels there on a consistent basis and, in fact, has been there twice in the

last 6 months.

The goods that he was providing to Iran and the Iranians, which may also be

used in Iranian defense equipment, gives Iranian nationals, as well as perhaps the

Iranian Government a reason to support him should he go to Iran.

He has got very close ties there, business associates and family associatesthere. He was actually dealing in these aviation parts with cousins of his wife who

resided in Iran.

He has agreed to shut down his business, and the government argues that his

business would no longer be viable after his arrest in this matter, assuming that he is

convicted.

And although he does have substantial assets here, he does have friends who

are willing to post four and a half million dollars in property, I find that that is not

sufficient to assure the court he will appear at future proceedings due to the nature

of the offense, the substantial prison sentence that he is facing and the likelihood that

he would flee to Iran where he has close ties.

Transcript at 18. Notably, the magistrate judges assumption that the Iranian government might have

reason to support Mr. Keshari should he abscond did not make its way into the written Detention

Order. See Detention Order [D.E. 15] at 2 34. In fact, there is no reason whatsoever to believe

that would happen. There is no evidence that Mr. Keshari has ever had any contact with the Iranian5

government.

After entry of the detention order, Mr. Keshari was charged by indictment with a multi-object

conspiracy, seven counts of violating executive orders establishing an embargo against Iran, and two

counts of violating the Arms Export Control Act. Indictment [D.E. 25] (July 3, 2006). These last two

counts are predicated on shipments also charged as violations of the Iran embargo. At bottom, the

acts forming the basis of all of these charges total seven shipments of parts, none of which is a


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On July 17, 2008, a corrected version of the motion [D.E. 35] was filed to correct certain6

scriveners errors in the original.

6

weapon. Rather, the parts that were allegedly exported are common aircraft parts: fitting assemblies,

switching assemblies, harness assemblies, accumulators, diaphragm seals, and gyros. Virtually every

airplane, whether military or commercial, requires these parts.

On July 14, 2008, Mr. Keshari moved pursuant to 18 U.S.C. 3142(f) to re-open the

detention hearing in light of the newly filed indictment and of counsels opportunity to investigate

the governments overstated claims. [D.E. 27] The motion exposed the governments exaggerated6

claim at the hearing that all the shipments in question were of military parts and the implication that

they were numerous. The motion also argued that the governments evidence regarding Mr.

Kesharis intent was far weaker than the government had represented. Some of the e-mails that

counsel was able to review after the hearing showed that, if Mr. Keshari in fact brokered military

aircraft parts, he did so unwittingly. They include such statements from Mr. Keshari as:

# I did not know that it was for f4. personally, i do not wish to do anything with this type

of aircraft.

# [A]s for the part I asked you to buy for us, I did not know it was for military use only. I

do not wish to buy anything that has military applications only. Thanks for letting me know.

The e-mails similarly refute the governments claim that Mr. Keshari knew that the shippers he

contacted lacked the requisite licenses.

The motion further argued that the governments claim that Mr. Keshari faced up to 20 years

in prison was an exaggeration. As the government later conceded, Mr. Keshari likely faces at most

five years in prison. See Governments Opposition [D.E. 37] at 9. That, of course, assumes that the

government proves all that it allegesa proposition that seems far less likely now than it did at the

June hearingand persuades the Court that a harsh sentence is warranted. Compare United States


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7

v. Reza Tabib, 8:06-Cr-0025-DOC (sentenced to 24 months for exporting F-14 aircraft and missile

parts to Iran; released on $225,000 appearance bond); United States v. Shahrazad Gholikhan,05-

60238-Cr-Cohn (case involving exporting night vision goggles to Iran; plea vacated after dispute

over whether guidelines range was 06 months or 3037 months; Judge Cohn sentenced defendant

to 29 months and then vacated plea and scheduled case for trial).

Despite these material revelations, the magistrate judge refused to give Mr. Keshari a chance

to be heard regarding the indictments allegations and his investigation of the governments claims.

[D.E. 39] The magistrate judge stated in the July 22 order refusing to re-open the hearing that the

information was essentially irrelevant:

The additional information proffered by the defendant does not have a material

bearing on whether the defendant should be detained prior to trial. Much of the

information contained in the instant motion was known to the defendant at the time

of the pretrial detention hearing before the undersigned. Additionally, the Court does

not find merit in the defendants claim that the government exaggerated or

misrepresented the nature of the case.

Order at 2. This motion and appeal of that order followed.

Statement of Facts

Hassan Saied Keshari emigrated to the United States from Iran at the age of 16 in 1977. After

graduating from high school in New Jersey, he studied aeronautical engineering at Arizona State

University until 1984. Before starting his own business in 1993, Mr. Keshari held various

engineering jobs throughout the country. Thus, even if he did lose his business as a result of this

indictment, Mr. Kesharis engineering skills make him readily employable.

During his more than 30 years living in this country, Mr. Keshari developed extensive ties

to the United States. His wife, Taromi Shahrzad (Sheri Keshari), and her family have lived in the


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8

United States since she was an infant. Sheris parents, her brother, and her sister all reside in Marin

County, California.

The Kesharis married in 1994. They have two children, Sahba Keshari, who is 12 years old,

and Sasha Keshari, who is 4 years old. Both children are natural-born United States citizens, having

been born in Northern California. The family lives in Novato, California, which is in Marin County

just north of San Francisco. Sahba will begin seventh grade in the fall at San Jose Middle School,

the local public school. The family belongs to the local YMCA whereSahba attends weekly swim

class.Neither of the Kesharis daughters speak Farsi (nor does Ms. Keshari).

Around 1999, Sheri Keshari fell gravely ill. After several months, she was diagnosed with

fibromyalgia. Fibromyalgia is a chronic condition that results in widespread pain in muscles,

ligaments, and tendons. It also causes chronic fatigue. The intensity of symptoms varies over time.

As a result, Mrs. Keshari at times is bedridden with pain, and Mr. Keshari must run the household

alonewaking, feeding, and taking the children to school as well as attending to his wife. Because

of the illness, Mrs. Keshari cannot work outside the home.

While two of Mr. Kesharis siblings as well as his parents reside in Iran, his sister, Sohelia

Keshari, lives in Orange County, California, and is a permanent resident. She is a widow living with

her four children. In addition, Mr. Keshari has two aunts and four uncles as well as numerous cousins

living in California, Ohio, Tennessee, Texas, and Georgia.

During the more than three decades that Mr. Keshari has lived in the United States, he has

traveled to Iran only four times. His first trip was in 1998, when he returned to Iran for the first time

in 22 years with his wife shortly after their marriage. In 2004, he took his family there for a nieces

wedding. Two years later, he and his sister went together to see their parents. Last year, he and his


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The government contended and the magistrate judge accepted that, even though the7

Kesharis offered to surrender all travel documents, they might somehow obtain Iranian passports

and escape to Iran. Transcript at 7 ([W]e are very concerned about the fact that a new Iranian

passport can come for that family to use to get back to Iran . . . .). First, the family cannot go back

to Iran because the Keshari family is American and has never lived in Iran. Second, the only relevantconcern is whether Mr. Keshari has incentive to flee, not whether he has mere opportunity to flee.

Truong Dinh Hung v. United States, 439 U.S. 1326, 1329 (1978) (Brennan, J., in chambers). Third,

even if it were not irrelevant, the government has no credible explanation as to how exactly this

would occur or how the family would get to an embargoed country to which there are no direct

flights.

9

family went to visit his wifes extended family. As there are no direct flights to Iran, each time he

goes, Mr. Keshari must stop in Europe.7

The Keshari family has about $350,000 worth of equity in their home and an additional

$120,000 in a townhouse purchased as an investment about four miles away. Most of Mr. Kesharis

relatives throughout the United States have American spouses and American-born children. These

families are willing to offer their own homes, in many cases the only asset they own, to secure his

appearance. Mr. Kesharis sisters brother-in-law also offered to use some of the equity in his

business to pay a bond. Additionally, the entire family has offered to surrender all passports in their

possession.

Mr. Keshari has no criminal record. He works as a broker of commercial aircraft parts. The

government is in possession of numerous records detailing Mr. Kesharis many sales of commercial

aircraft parts in the United States. He maintains his own inventory at a warehouse, which the

government searched and found to contain only commercial and civil aircraft parts.

Legal Standards

When a motion is made to revoke a pre-trial detention order, the district court must conduct

an independent or de novo review of the magistrate judges determination that pre-trial detention is


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10

necessary. SeeUnited States v. King, 849 F.2d 485, 48990 (11th Cir. 1988). The district court

should conduct a hearing on the matter if the district court, after reviewing the detainees motion,

determines that additional evidence is necessary or that factual issues remain unresolved . . . .Id.

at 490.

Undersigned counsel submits that a hearing on the factual disputes set forth above will

greatly aid the Court in making its independent, de novo review of the decision to imprison Mr.

Keshari pending trial. In accordance with Local Rule 7.1.B.1, a separate request for hearing has been

filed together with his motion.

An appeal from a magistrate judges order denying a motion to re-open the pre-trial detention

hearing is reviewed to determine whether it is clearly erroneous or contrary to law. 28 U.S.C.

636(b)(1)(A). Presumably, Congress meant for the magistrate judges factual findings to be reviewed

for clear error and legal conclusions to be reviewed de novo.

Argument

I. The magistrate judge clearly erred in concluding that no conditions of release would

reasonably assure Mr. Kesharis appearance for trial.

In our society liberty is the norm, and detention prior to trial or without trial is the carefully

limited exception. United States v. Salerno, 481 U.S. 739, 755 (1987). The Bail Reform Act

accordingly provides for pre-trial detention only when there is clear and convincing evidence that

the defendant poses a danger to society or when there is a serious risk that the accused will flee. 18

U.S.C. 3142(e) & (f). The authority to detain an individual like Mr. Keshari who is merely accused

of crime and presumed innocent is predicated on a courts need to maintain the integrity of its


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11

proceedings by reasonably assuring that the accused will appear. Federal courts are not authorized

to incarcerate defendants because there is some speculative possibility that they may flee:

From the passage of the Judiciary Act of 1789, . . . federal law has unequivocally

provided that a person arrested for a non-capital offense shall be admitted to bail.This traditional right to freedom before conviction permits the unhampered

preparation of a defense, and serves to prevent the infliction of punishment prior to

conviction. Unless this right to bail before trial is preserved, the presumption of

innocence, secured only after centuries of struggle, would lose its meaning.

The right to release before trial is conditioned upon the accuseds giving

adequate assurance that he will stand trial and submit to sentence if found guilty.

Stack v. Boyle, 342 U.S. 1, 4 (1951).

In this case, the magistrate judges determination that Mr. Keshari presented a serious flight

risk was based on the governments overstatements concerning the nature of the charges and the

weight of the evidence as well as Mr. Kesharis alleged ties to Iran. The magistrate judge accepted

the governments unsupported conjecture that Mr. Keshari would flee to Iran and ignored the far

greater incentives he has to remain in the United States and face the charges. A closer look at the fact

underlying the detention decision demonstrates, however, that the standard for incarceration pending

trial was not met. This is conclusively illustrated by examining a notably similar case decided by

then-Judge now-Justice Kennedy when he was on the Ninth Circuit Court of Appeals.

Like Mr. Keshari, Amir Masoud Motamedi was charged with conspiring to export items

without a license, in violation of the Arms Export Control Act, to Iran. United States v. Motamedi,

767 F.2d 1403, 1404 (9th Cir. 1985). Like Mr. Keshari, Mr. Motamedi faced a sentence of

approximately five years.Id. And, like Mr. Keshari, Mr. Motamedi was ordered detained pending

trial on the grounds that he posed a risk of flight. Mr. Motamedi, however, had stronger ties to both

the Iranian country and the Iranian government than Mr. Keshari has:


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Importantly, Justice Kennedy reached this conclusion applying a deferential, clearly8

erroneous standard to the district courts factual findings. Id. at 1405. His opinion noted that,

because of the important constitutional rights at stake, all reviewing courts have a nondelegable

responsibility to make an independent determination of the propriety of detention pending trial.Id.

This responsibility requires a reviewing court, including this Court, to ensure not only that the

factual findings support the conclusion reached, but also that the persons constitutional and statutory

rights have been respected.Id.

12

[T]he magistrate found that Motamedi, an Iranian citizen, was acting as a de facto

purchasing agent for the current Iranian government and could return to Iran with

impunity; that he maintained large foreign bank accounts with most, if not all, of the

deposits being made by the Iranian government; that he persisted in his allegedly

illegal exporting activities despite warnings by agents of the United States Customs

and Federal Bureau of Investigation that it was illegal to export the items in question;and that the nature and circumstances of the offenses charged are serious.

767 F.2d at 1404.

Despite Mr. Motamedis strong ties to Iran, Justice Kennedys opinion for the Ninth Circuit

panel reversed the district courts pretrial detention order, holding that the government had failed to

meet the standard for pre-trial detention.Id. at 1405. Mr. Keshari has no property or money in Iran.8

He has no ties to the Iranian government. He is not an Iranian citizen, but rather has been an

American citizen for many years. No government agency gave him any warning before arresting him

in front of his traumatized family. Obviously, there is some disparity between Justice Kennedys

approach and that applied in this case.

Justice Kennedy began his analysis of the case by reviewing the many factors . . . which

point toward the conclusion that Motamedi should be released.Id. at 1407. This is the appropriate

first step because release is the norm and detention the rare exception. Salerno, 481 U.S. at 755.

These factors were extremely similar to the facts of the instant case with the notable exception that

Mr. Keshari is not merely a permanent resident but a United States citizen and has lived in this

country without incident or problem for 32 years:


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13

Motamedi is a 27-year old Iranian citizen who has been admitted for permanent

residence in this country. He has been living in the Los Angeles area since 1976 and

has applied for citizenship. He has approximately eighty-five relatives in the Los

Angeles area, many of whom are citizens. His immediate family, including his wife,

brothers, mother, and father, all reside in the area. His parents have posted their

residence as security on the $750,000 bond. He has no prior criminal record, and nohistory of alcohol or drug abuse. He has not violated any conditions of his release,

and has made all court appearances.

Id. at 140708. Mr. Kesharis wife has lived all but one year of her life in the United States and his

daughters are both native Californians. While he has some relatives including his elderly parents in

Iran, he has many younger relatives, including his sister as well as her children, here in the United

States. He has no criminal history and is willing to post valuable property, including his familys

home, with the Court to secure his appearance.

Justice Kennedy then examined the governments allegations and evidence and concluded

that they did not establish that Mr. Motamedi had a great incentive to flee the jurisdiction. Id. at

1408. As Justice Kennedy cautioned, the weight of the governments evidence is relevant to the pre-

trial detention determination only insofar as it provides the accused a serious incentive to flee.Id.

at 1408. Otherwise, if the court impermissibly makes a preliminary determination of guilt, the

refusal to grant release could become in substance a matter of punishment.Id. at 1408. This would

violate the clear directive of the Bail Reform Act itself which states, Nothing in this section shall

be construed as modifying or limiting the presumption of innocence. 18 U.S.C. 3142(j).

Justice Brennan likewise emphasized this as being the proper inquiry in Truong Dinh Hung

v. United States, 439 U.S. 1326 (1978). Applying the same standard under the predecessor to the

current Bail Reform Act, Justice Brennan concluded that the accused, an alien convicted of

espionage, was entitled to remain on release pending appeal. This was true despite the fact that he


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14

maintained contact with the Vietnamese Ambassador in Paris; that he has not established a

permanent residence in this country; and that, should applicant flee to Vietnam, the United States

would have no means to procure his return. Id. at 1328. Justice Brennan reasoned that if these

considerations suggest opportunities for flight, they hardly establish any inclination on the part of

applicant to flee.Id.

The magistrate judge did not follow this approach. Rather, the magistrate judge clearly

prejudged Mr. Kesharis guilt because he reasoned that [t]he goods that he was providing to Iran

and the Iranians . . . gives Iranian nationals, as well as perhaps the Iranian Government a reason to

support him should he go to Iran. Transcript at 18. This speculation runs afoul of 3142(j) because

it negates the presumption of innocence. More fundamentally, it is simply unsupported speculation.

Subsequent events revealed just how sanguine Justice Kennedys determination that Mr.

Motamedi must be released on bond was. Mr. Motamedi did not flee. Rather, he duly appeared for

trial. As it turned out, the government appeared to have had ulterior motives for wanting him

incarcerated. See Philip Shenon, Walsh May Take Over More Iran Arms Cases, N.Y.TIMES, Dec.

31, 1986, at A4 (reporting that Motamedis trial in Los Angeles was sealed to allow discussion of

the defendant's relationship with the Central Intelligence Agency.). Mr. Motamedi ultimately pled

guilty at some point during the proceedings and was sentenced to a mere three months in jail.Id.

As theMotamedi case illustrates, the ability to detain American citizens on a scant showing

of risk of flight is readily abused by a government seeking to advance goals other than the integrity

of the judicial process. In Motamedi, it was to cover up the Iran-Contra scandal. Much more

oftenand likely in this caseit is to get defendants to flip and cooperate with the government.

Justice Marshall warned of this unconstitutional and dangerous practice in his Salerno dissent:


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Bond has been set for defendants in this district facing substantially more time in prison. See9

United States v. Ali Shaygan ($1.4 million bond for defendant facing 20 year mandatory sentence

with substantial ties to Iran); United States v. Giordano, 370 F. Supp.2d 1256 (S.D. Fla. 2005)

($500,000 personal surety bond and $500,000 corporate surety bond where defendant faced up to

85 years); United States v. Valdes, No. 04-20828-CR-Jordan (S.D. Fla. Dec. 17, 2004) (reversing

order of detention in health care fraud case in favor of corporate and personal surety bonds where

losses alleged amounted to $3 million and defendant had strong community ties and no criminal

history; bond set $150,000 ten percent bond); United States v. Hodge, No. 03-80146-CR-Marra (S.D.

Fla. June 18, 2004) (affirming order denying pretrial detention in securities fraud case; no evidence

of criminal record, significant foreign contacts, or any intent to flee from prosecution; bond set

$250,000 corporate surety bond); United States v. Devilliers, No. 04-20159-CR-Gold (S.D. Fla.

15

Respondent Cafaro was originally incarcerated for an indeterminate period at the

request of the Government, which believed (or professed to believe) that his release

imminently threatened the safety of the community. That threat apparently vanished,

from the Government's point of view, when Cafaro agreed to act as a covert agent of

the Government. There could be no more eloquent demonstration of the coercive

power of authority to imprison upon prediction, or of the dangers which the almostinevitable abuses pose to the cherished liberties of a free society.

Salerno, 481 U.S. at 76667 (Marshall, J., dissenting).

It may be readily conceded that the district courts have the authority to detain those who

threaten to flee to ensure the integrity of federal court proceedings. The finding of probable cause

conveys power to try, and the power to try imports of necessity the power to assure that the processes

of justice will not be evaded or obstructed. Salerno, 481 U.S. at 765 (Marshall, J., dissenting).

However, it falls to the district courts to ensure that this power to ensure that indicted individuals

appear at court proceedings is not co-opted by the Executive Branch to advance other goals not

authorized by statute. That can only be accomplished by carefully scrutinizing in every case the

governments claim that no condition or combination of conditions will reasonably assure the

appearance of the person. 18 U.S.C. 3142(e).

The facts of this case, no less than the facts as Justice Kennedy found them inMotamedi, fail

to establish that Mr. Kesharis appearance at court proceedings cannot reasonably be assured by bail.9


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April 12, 2004) (affirming denial of pretrial detention for defendant who spearheaded a gambling

RICO enterprise based on lack of proof of serious risk of flight and no criminal history; bond set at

$500,000 ten percent and $1,000,000 personal surety bond);United States v. Les Price, 01-Cr-20626

($100,000 cash bond for Canadian charged with numerous counts of securities fraud and money

laundering); United States v. Harold Joliffe, No. 02-CR-20642 ($100,000 10% and $500,000

corporate bond for Canadian national); United States v. Masferrer, 04-CR-20404 ($1,000,000

personal surety bond and $250,000 10% bond for defendant charged with numerous bank fraud

counts who later received 30-year sentence).

16

First, unlike Mr. Motamedi who was merely a permanent resident, Mr. Keshari is an American

citizen. He has lived in the United States for more than three decades without incident. His children

are natural born citizens and his wife, also a citizen, has lived in the United States since the age of

1.

Second, the charges in both cases are essentially the same and, as the government concedes,

the highest likely penalty, just as inMotamedi, is approximately five years in prison. Most of the

charges against Mr. Keshari are simple violations of the embargo, which prohibits virtually all

exports to Iran. Only two of the seven shipments are charged as violations of the Arms Export

Control Act (as well as of the embargo).

Third, the weight of the evidence against Mr. Keshari is not nearly so great as to motivate

him to uproot his sick wife and young children or to abandon them. To prove a violation of the Iran

embargo, the government must prove not only that Mr. Keshari caused such shipments but also that

he knew the sellers whom he contacted lacked the requisite license. To prove the Arms Export

Control Act violations, the government must prove that Mr. Keshari knew the parts were destined

for military aircraft. The military use element is not as straightforward as it might appear. Unlike the

schedules of controlled substances which actually list every controlled substance, the United States


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22 C.F.R. 121.1 (Category VIII(h)).10

22 C.F.R. 121.1 (Category VIII(a)).11

17

Munitions List describes categories of banned parts. The pertinent provision for this case states that

it is illegal to export:

Components, parts, accessories, attachments, and associated equipment (including

ground support equipment) specifically designed or modified for the articles inparagraphs (a) through (e) of this category, excluding aircraft tires and propellers

used with reciprocating engines.10

Sub-paragraph (a) of Category VIII describes the aircrafts that cannot be exported as follows:

Aircraft, including but not limited to helicopters, non-expansive balloons, drones,

and lighter-than-air aircraft, which are specifically designed, modified, or equipped

for military purposes. This includes but is not limited to the following military

purposes: Gunnery, bombing, rocket or missile launching, electronic and other

surveillance, reconnaissance, refueling, aerial mapping, military liaison, cargo

carrying or dropping, personnel dropping, airborne warning and control, and militarytraining.11

Thus, the government needs to prove, not only that the allegedly shipped parts were specifically

designed or modified to be used on military aircraft, but also that Mr. Keshari knew that they were.

Given that the charged parts are common to virtually all aircrafts (as well as many other

machines), the government needs to show considerably more than it has thus far. There is no

evidence that Mr. Keshari knew that the shipments alleged were illegal, especially considering that

the government does not even contend that Mr. Keshari ever saw the shipments. Venue in this

district is predicated on the fact that the shipments originated here. Mr. Keshari is alleged to have

brokered them from California. Thus, there is no evidence, much less a preponderance of it, showing

Mr. Kesharis knowledge or intent.


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Alienage, of course, is different and may be taken into account. See Motamedi, 767 F.2d12

at 1408. Mr. Keshari is not an alien; he is a United States citizen.

18

Fourth, the factual predicate for the serious risk of flight inMotamedi was far more egregious

than in this case given the close ties that Mr. Motamedi had to Iran. Unlike Mr. Motamedi, Mr.

Keshari is not alleged to have any money in Iran or close ties to the Iranian government. Conversely,

Mr. Kesharis ties to the United States in terms of tenure in the country, assets in the country, and

relatives who reside herenot to mention his own immediate American family including two young

daughters to whom Iran is a strange and foreign landare far stronger than Mr. Motamedis were.

Lastly, it should be noted that the magistrate judge appears to have relied upon an

unconstitutional factornational originin deciding to detain Mr. Keshari. Cf. Iqbal v. Hasty, 490

F.3d 143 (2d Cir. 2007) (stating that discrimination in conditions of confinement on basis of Muslim

Pakistanis race, religion, and national origin is unconstitutional). That fact that Mr. Keshari was12

born in Iran is noted in the hearing transcript as well as the detention order. Transcript at 18;

Detention Order at 2. This fact was, as a matter of constitutional law, irrelevant and could not be

considered at all. Mr. Keshari is a citizen of the United States of America and is entitled to the equal

protection of the Nations laws, to the same degree as his own children, who are natural-born

citizens. All citizens must be admitted to bail on like terms. It is impossible to tell from the record

to what extent the magistrate judge relied on this impermissible factor.

In this case, the magistrate judge was concerned with whether Mr. Keshari might have the

opportunity to flee rather than with whether he had any inclination flee. As Justice Brennan and

Justice Kennedy both carefully reasoned, that is the important consideration. Under the


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Mr. Keshari retained new counsel after his initial pre-trial detention hearing.13

Understandably, an individual with no criminal record who is ambushed by federal agents while

vacationing with his family might need more than a week to select defense counsel.

19

circumstances, there is simply no reason to believe that Mr. Keshari would not appear for all

proceedings and face the charges against him if released on a reasonable bond.

II. The magistrate judge failed to afford Mr. Keshari due process of law by refusing to

afford him an opportunity to be heard on his motion to re-open the pre-trial detentionhearing.

The Bail Reform Act provides that a pretrial detention hearing

may be reopened, before or after a determination by the judicial officer, at any time

before trial if the judicial officer finds that information exists that was not known to

the movant at the time of the hearing and that has a material bearing on the issue

whether there are conditions of release that will reasonably assure the appearance of

such person as required and the safety of any other person and the community.

18 U.S.C. 3142(f). In this case, Mr. Keshari sought relief under this statute and supported that

request with the newly filed indictment and with defense counsels investigation of the governments

claims at the initial pre-trial hearing. As discussed in the Course of Proceedings section,supra, the13

charges the indictment actually states are less serious than what the government intimated they

would be. Mr. Keshari is charged with a total of seven questionable shipments over a 19-month

period. This does not support the idea that he is basically a broker of military aircraft parts.

Transcript at 3. Nor can it be said that the magistrate judge was not unduly swayed by the

governments exaggerated claims. The magistrate judge concluded from the bench that Mr. Kesharis

conduct might give the Iranian Government a reason to support him should he go to Iran.

Transcript at 18. Furthermore, undersigned counsel was prepared to present evidence, including

several exculpatory e-mails, that severely undermined the governments speculative and conclusory

claims regarding Mr. Kesharis mens rea. The motion also pointed out many of the factual


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20

misrepresentations made by the government, including its overstatement of the number of trips Mr.

Keshari has made to Iran since leaving there three decades ago.

Despite the fact that both the nature of the charges and the weight of the evidence against Mr.

Keshari were not as the government claimed, the magistrate judge refused to afford Mr. Keshari so

much as a hearing to resolve these questions of fact and their impact on his liberty. This was a

violation of due process. Even though the statute is phrased permissively, stating that the hearing

may be reopened when new information is discovered, that does not mean that a hearing can be

refused arbitrarily or for the sake of mere expedience.

The fundamental requirement of due process is the opportunity to be heard at a meaningful

time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). TheMathews Court recognized that [d]ue process

is flexible and calls for such procedural protections as the particular situation demands.Id. at 334

(quotingMorrissey v. Brewer, 408 U.S. 471, 481 (1972)). The Court identified three factors to

consider in assessing procedural due process rights: (1) the private interest at stake, (2) the risk of

erroneous deprivation and the likely value of additional or substitute procedures, and (3) the

governmental interest at stake.Id. at 33435. In Salerno, the Supreme Court applied theMathews

factors in evaluating the constitutionality of the pretrial detention provision of 3142 with respect

to defendants detained on the grounds of dangerousness.

Applying those factors to this case in which Mr. Keshari was detained on the sole ground that

he posed a serious risk of flight indicates that he was entitled to be heard given the serious factual

issues bearing upon his pre-trial status. First, Mr. Kesharis interest in his liberty is of the very

highest order. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 78 (1985) (stating that liberty interest is


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21

almost uniquely compelling.); Schall v. Martin, 467 U.S. 253, 304 (1984) (stating that liberty

interest is fundamental and should not be abridged if at all possible). Second, the risk of an erroneous

deprivation is high where there are discrepancies between the governments representations and

reality, as there are in this case. Third, the governments only interest in detaining someone who is

a risk of flight is to ensure the integrity of judicial proceedings.Bell v. Wolfish, 441 U.S. 520, 535

& n.15 (1979); Salerno, 481 U.S. at 76667 (Marshall, J., dissenting). That interest is hardly

furthered by denying Mr. Keshari a hearing to resolve factual inconsistencies regarding the basis for

his detention pending trial.

Rather than properly weighing Mr. Kesharis due process interest in having the matter of his

detention determined on correct and complete information, the magistrate judge simply made a

summary determination from the written motion. The resulting order did not address the newly filed

indictment, the contradictions between the governments presentation and the true facts, or the

exculpatory evidence that undermined the governments assertions regarding the strength of its case.

Instead, the magistrate judge summarily decided that he would detain Mr. Keshari regardless of any

hearing, stating that the additional information proffered by the defendant does not have a material

bearing on whether the defendant should be detained prior to trial. Order at 2. This conclusion is

clearly erroneous.

The Bail Reform Act specifically instructs that the detention decision must be predicated on

the nature of the charges, the weight of the governments evidence, and the characteristics of the

defendant. 18 U.S.C. 3142(g)(1), (2) & (3). The additional information that the defense proffered

in the motion included the newly filed indictment. Obviously, that would be germane to the nature

of the charges and the Bail Reform Act specifically entitles the defendant to be heard on that. 18


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22

U.S.C. 3142(f). That is not to say that every defendant who is detained prior to indictment should

have two hearings. It is to say that when the indictment is not exactly what the government proffered,

issues of fairness arise that cannot be adequately resolved on the papers given that an individual

interest of the highest orderlibertyis at stake.

The fact that Mr. Kesharis e-mails in fact do not document illegal transactions as the

government claimed but are in large part equivocal and in many instances clearly exculpatory was

critical to evaluating the weight of the evidence. When that is combined with the exaggerations

regarding Mr. Kesharis travel to Iran, the strength of the governments case is far less than it

appeared at the June hearing. The governments conclusory and unsupported speculation that Mr.

Keshari must or should have known that he was involved in shipping military parts is likewise

undermined now that the alleged scheme is more clearly described in the indictment. All of the parts

in all of the shipments are common to all aircraft and there is no evidence at all that Mr. Keshari, a

mere broker or intermediary under the governments own theory, ever laid eyes on any of the parts.

Thus, even crediting the governments baseless claim that Mr. Keshari could tell a commercial

accumulator from a military one on sight (a plainly dubious claim), the government cannot rely on

that to show knowledge or intent under its own version of the facts. Clearly, a hearing was needed

to resolve these material inconsistencies in the governments narrative.

The government has no legitimate interest whatsoever in detaining an American citizen

pending trial when that individuals appearance can be reasonably assured with a bond. On the other

hand, an individual facing felony charges has an inestimable interest in being free of confinement,

not only because liberty is an interest of the highest order but also because incarceration

compromises the defendants ability to prepare to meet the governments accusations. If it suffices


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to accuse, what will become of the innocent? Coffin v. United States, 156 U.S. 432, 455 (1895)

(quoting Ammianus Marcellinus,Rerum Gestarum Libri Qui Supersunt, L. XVIII, c. 1, A.D. 359).

Mr. Keshari was therefore doubtlessly entitled to have his pre-trial release status adjudicated

on complete and correct information. It is not good enough that the information was mostly correct

or that the judicial officer believes the same conclusion would likely result. The process must be fair.

Under the circumstances, the magistrate judge clearly erred in refusing to re-open the hearing.

Conclusion

WHEREFORE this Court should grant Mr. Keshari a hearing to resolve the factual issues

pertinent to his detention, revoke the pre-trial detention order, and set a reasonable bond for Mr.

Keshari.

Alternatively, the Court should rule that the magistrate judge violated Mr. Kesharis Fifth

Amendment due process rights by refusing to re-open the pre-trial detention hearing under 18 U.S.C.

3145 and direct the magistrate judge to re-open the hearing to afford Mr. Keshari a full and fair

opportunity to be heard.

Respectfully submitted,

____________________________

David Oscar Markus

Fla. Bar No. 119318

Robin Kaplan

Fla. Bar. No. 773751

DAVID OSCARMARKUS, PLLC

Alfred I. duPont Building

169 East Flagler Street, Suite 1200

Miami, Florida 33131

Telephone: 305-379-6667

Facsimile: 305-379-6668


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CERTIFICATE OF SERVICE

A copy of the foregoing was served through the electronic filing system on July 29, 2008, on

AUSA Melissa Damian.

___________________________

David Oscar Markus


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