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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NUMBER 08-20612-Cr-Seitz UNITED STATES OF AMERICA, Plaintiff, vs. HASSAN SAIED KESHARI, Defendant. ____________________________/

HASSAN SAIED KESHARIS OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT AND SENTENCING MEMORANDUM

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INTRODUCTION Through this sentencing memorandum, we are respectfully requesting a sentence of credit time served (almost 11 months) for Hassan Saied Keshari. We will summarize here a number of important factors that support such a sentence: 1. The History and Characteristics of the Mr. Keshari: Mr. Keshari is a first-time, non-violent offender. He is a 48-year old United States citizen and a married father of 2 young daughters (Sasha, 5 and Sahba, 13). As explained in more detail below, he has been and can be again a productive member of society. 2. Cooperation: Mr. Keshari immediately confessed upon his arrest, without a lawyer present. He also agreed to plead guilty and cooperate at the outset of the case, without even pursuing motions to suppress and dismiss. Mr. Keshari also agreed to forfeit all of the money seized from his business account at the time of his arrest (approximately $60,000). Mr. Kesharis cooperation (including over 12 debriefings and testifying before the grand jury) led the co-defendant to plead guilty and also assisted the government in indicting another case. We will more fully detail Mr. Kesharis actual cooperation at the sentencing hearing. 3. Familial Circumstances: Mr. Kesharis wife is extremely ill. Her medical records will be filed under seal, and we will set forth some of those circumstances in this memo.

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4.

The Nature of the Offense and the Need to Avoid Unwarranted Sentencing Disparities: Mr. Keshari pleaded guilty to a Section 371 conspiracy charge, with a five year maximum. Each of the substantive counts is to be dismissed at the sentencing. His advisory guideline range before the filing of a 5K1.1 motion is 4657 months. Many defendants, as detailed below, who have undertaken similar or worse conduct have been sentenced to significantly lower terms. LAW As the Court is well aware, district courts are now free from the mandatory nature

of the Federal Sentencing Guidelines. United States v. Booker, 543 U.S. 220 (2005); Spears v. United States, 2009 WL 129044 (Jan. 21, 2009). See also United States v. Ranum, 353 F. Supp 2d 984 (E.D. Wis. 2005) (Adelman, J.) (holding that Booker was not an invitation to do business as usual). In fact, the guidelines are not even presumptively reasonable: the guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. Nelson v. United States, 2009 WL 160585 (Jan. 26, 2009); United States v. Agbai, 497 F.3d 1226 (11th Cir. 2007) (trial courts are not permitted to presume that a guideline sentence is reasonable). In particular, the Eleventh Circuit repeatedly has affirmed below guideline sentences after Booker. United States v. Irey, 2009 WL 806860 (11th Cir. March 30, 2009) (affirming variance from level 43 (life) to 210 months in utterly gruesome case recognizing that sentencing is the most difficult job a district judge performs); United States v. Anderson, No. 07-11848 (11th Cir. February 28, 2008) (affirming sentence of probation for white collar defendant where guidelines were 18-24 months and prosecutor was
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requesting 18-month sentence, explaining that after Gall district courts had wide discretion at sentencing); United States v. McBride, 511 F.3d 1293 (11th Cir. 2007) (affirming variance from 151-188 months to 84 months in child porn case); United States v. Clay, 483 F.3d 739 (11th Cir. 2007) (affirming 60 month sentence even though guidelines were 188235 months based on post-offense rehabilitation); United States v. Mathis, 186 F. Appx 971 (11th Cir. 2006) (50% variance from top end of guidelines affirmed in Hobbs Act extortion and obstruction of justice case); United States v. Gray, 453 F.3d 1323 (11th Cir. 2006) (affirming 72 month sentence even though low end of guidelines were 151 months, more than double sentence imposed); United States v. Halsema, 180 F. Appx 103 (11th Cir. 2006) (unpublished) (affirming 24 months sentence even though guidelines were 5771 months); United States v. Williams, 435 F.3d 1350 (11th Cir. 2006) (90 months imprisonment was sufficient, but not greater than necessary to punish, deter, and rehabilitate defendant even though low end of guidelines was 188 months). As Booker makes clear, the Court must consider all of the factors set forth in 18 U.S.C. 3553(a), which provides that: The court shall impose a sentence sufficient, but not greater than necessary. . . . The court, in determining the particular sentence to be imposed, shall consider (1) the nature of the circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct;
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(2)

(B)

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(C) (D)

to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) (4)

the kinds of sentences available; the applicable category of offense committed by the applicable category of defendant as set forth in the Guidelines . . . . any pertinent [Guidelines] policy statements . . . . the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense. APPLICABLE SECTION 3553 FACTORS

(5) (6)

(7)

1.

The History and Characteristics of the Mr. Keshari: Mr. Keshari is a first-time,

non-violent offender. He is a caring and loving man, who is adored by his two young daughters (Sasha, 5 and Sahba, 13). His wife and family depend on him as he is the hub of his family; he is the sole breadwinner and the primary caretaker of his wife and their two children. Unfortunately, because they live in California and because Mrs. Keshari is sick, he has been unable to see his family for the past eight months. He graduated from Arizona State University with a B.S. in 1985. After his release from prison, he will be employed at Mother Earth Energies, using his education to positively impact the environment by upgrading existing properties with the highest energy efficient standards. Mr. Keshari always has treated everyone involved in this case from the agents, to the prosecutor, to his lawyers, and this Court with utmost respect and courtesy. Mr.
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Keshari is a soft-spoken gentle man, who is well-liked by just about everyone. Mr. Keshari is filing under separate cover the many letters of support from his family and friends. We hope the outpouring of support is evident from these letters. We also plan on calling some of these family members to briefly speak at Saieds sentencing hearing, and we remind the Court of the bail hearing it conducted where it heard the heartfelt stories of some of these individuals. Here is a sample of what people had to say about Saied in the letters submitted to the Court: < He is truly a good man and wonderful, loving husband and father as well as my best friend. He is always there to lend a helping hand or a sympathetic ear to whoever needs it. Saied has truly been my knight in shining armor. Sheri

Taromi Keshari (wife) < I never met a man more devoted to his family than Saied. Rahele Atabaki (wifes cousin) < Saied is considerate, helpful, honest and a gentle human being. He is always there for people who need him. Masssoud Dehdashti (family friend) < Saied is a genuinely kind and responsible person with a great sense of humor. Saeed Rahmanian (childhood friend) < He exhibits kindness and responsibility and his absence in unbelievable. Malek Taj Rahimi Keshari (sister) < He has been a respected and well liked member of our community. Saied is seen by everyone as an honorable man, dedicated father and husband, who has spent his life supporting and taking care of his family. Sivash Barmand (friend)
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<

Words alone cannot explain the impact of his presence on so many lives. Abe Kani (cousin)

<

Uncle Saied also played a significant ethical and moral role in our development; he taught me and my cousin Ali the proper and courteous ways... Sanjar Taromi (nephew)

<

He has a pure generous heart and gives more of himself than he takes from others. Gita Dehnad (extended family)

2.

Cooperation: Mr. Keshari immediately confessed upon his arrest, without a lawyer present. He

pleaded guilty months before his co-defendant, saving the Court and the Government quite a bit of time. He cooperated at the outset of the case, without filing motions or sending letters to the Court. He has been debriefed at least 12 times, spending many hours with the agents and the prosecutor. He has been thoroughly debriefed and has been truthful with the government, who has relied on him for helpful information. He testified before the grand jury. As noted above, his cooperation led to the co-defendants plea and has assisted in a separate indictment against others. We will more fully detail Mr. Kesharis actual cooperation at the sentencing hearing. 3. Familial Circumstances: A lengthy prison sentence for Saied may irreversibly deteriorate Mrs. Kesharis already severe and delicate medical conditions. Mrs. Keshari suffers from fibromyalgia, c-spine degenerative disk disease, chronic neck pain, anxiety, irritable bowl syndrome and small bowel bacteria. See Medical records, Letter from Barbara Finzen, M.D. Mrs.
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Kesharis health problems limit her ability to care for her two young daughters. As a result, Saied Keshari has been the primary caretaker of the two girls. Mrs. Kesharis physical condition has continued to worsen since her husbands incarceration. See Medical Record, Letter from Dr. John J. Jolley, M.D. It has also taken a toll on her mental state and her ability to raise and interact with her young children. Family therapist, Pamela

Sweeney, explains that Sheri has been extremely depressed and anxious, highly irritable, and on most days barely getting out of bed. See Letter from Pamela Sweeney, dated February 9, 2009. She also suffers from post traumatic stress disorder (PTSD) related to a childhood trauma and Mr. Kesharis arrest has exacerbated this condition. Testing has revealed that Mrs. Keshari has a major psychological impairment. Id. She still cannot work outside the home and is presently working on trauma resolution techniques. Both of the Keshari children are presently being treated by the Family Service Agency in Marin, California. Sahba Keshari, age twelve, has been diagnosed with an adjustment disorder, depression and anxiety. She was found to have severe conduct and attention problems related to fathers incarceration and mothers inability to care for her and her sister. Psychologist Sherrin Packer-Rosenthal explained that Ms. Kesharis health problems have made parenting difficult and as a result, there has been a role reversal between mother and daughter, with Sahba acting as the mother and protective older sister. Sahba explained that her mother is severely depressed, lost 20 pounds since Mr. Kesharis arrest, and has a low energy level. Sahba clearly feels a loss of family and is working on developing resiliance skills to decrease her depression and anxiety. See generally
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Psychological Assessment of Sahba Keshari, dated 1/14/09 by Sherrin Packer-Rosenthal. Sasha Keshari, age 5, has also been diagnosed with adjustment disorder with mixed disturbance of conduct. She suffers from severe sleep disturbances, and is clinging, oppositional and argumentative. These conditions have occurred because of her fathers absence who she believes is in Miami for work. Nevertheless, Sasha still observed her fathers arrest at the Miami International Airport and continues to have vivid traumatic flashbacks of those events. According to Mrs. Keshari, Sashai often cries for her father at night, and has a recurring dream of monsters coming to get her since she watched her father getting handcuffed. Sasha has begun to act out and is often has uncontrollable fits. To make matters worse, Mrs. Kesharis father was diagnosed with cancer this month, further exacerbating the situation. The impact on Mr. Kesharis arrest has been devastating particularly in light of their mothers physical and emotional state and her inability to care for them. For the sake of his wife and children, Mr. Keshari has already started preparing for his life outside of the federal detention center. Mr. Kesharis brother-in-law, Siamek Taromi, will employ Mr. Keshari at his company, Mother Earth Energies. Indeed, several family members will be working together on a new green initiative, which will be a division of Mr. Taromis construction/building business. Mr. Kesharis engineering background will be instrumental in upgrading existing properties to the highest energy efficient standards. Several family members have sent him books about the new company and the green initiative so he can hit the ground running upon his release. Considering the need for Saied to provide Mrs. Keshari constant medical care, the
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important daily role that Saied plays in caring for his two young children given his wifes debilitating medical conditions, in addition to the arguments presented throughout this memorandum, a sentence of credit time served is sufficient but not greater than necessary.

4.

The Nature of the Offense and the Need to Avoid Unwarranted Sentencing Disparities: Title 18 U.S.C. 3553(a)(6) mandates that the Court consider the need to avoid

unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. The proposed sentencing range in this case is unwarranted when compared to sentenced meted out in cases involving criminal conduct equal or more severe than alleged in this case. In such cases, similarly situated

defendants have been sentenced significantly below the Guideline ranges recommended in the PSI: U.S. Aircraft Parts to Iran - Mohammad Fazeli, a naturalized U.S. citizen from Iran, pled guilty to violating one count of 50 USC 1701-1705, International Emergency Economic Powers Act. The ICE investigation revealed that Fazeli attempted to unlawfully export 103 pressure sensors to Iran, which are applicable to black box data recording devices for aircraft. Mr. Fazeli was sentenced to 12 months incarceration. United States v. Fazeli, 06-Cr-00185 (C.D. Cal. 2006). U.S. Fighter Jet Components to Iran - George Charlez Budenz, a formal naval officer, pled guilty to illegally exporting military aircraft components to Iran, including engine parts for the US F-5 fighter jet, the T-38 military training jet, and Chinook military helicopters. Budenz was sentenced to 12 months incarceration. Untied States v. Budenz, 05-Cr-01863 (S.D. Cal. 2005). U.S. Missile and Fighter Jet Components to Iranian Arms Network Several U.S. companies had illegally exported thousands of missile and fighter jet components to Multicore, an Iranian front company in London that procures weapons systems worldwide directly for the Iranian military. Among
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the items exported were components for U.S. HAWK missiles, F-14 fighter jets, F-5 fighter jets, F-4 fighter jets, C-130 military aircraft, military radars and other equipment. Agents arrested Multicore officers Saeed Homayouni and Yew Ling Fung on arms export violations. The storage facility was searched and thousands of aircraft and missile components were found bound for Iran via Singapore. Both men pled guilty. Homayouni was sentenced to 24 months incarceration and Fung to 8 months incarceration. United States v. Homayouni, 00-Cr-03843 (S.D. Cal. 2000). U.S. Fighter Jet Components to Iran - Reza Mohammad Tabib pled guilty willfully attempting to export and ship from the United States to Iran. Tabib and his wife sent F-14 parts through Germany and the UAE to arrive in Iran. A search of the Tabibs home revealed more than 13,000 aircraft parts, including military hardware for different aircraft including the F-14. The agents also intercepted F-14 maintenance kits that the couple was sending to Iran prior to their arrest. Tabib was sentenced to 24 months incarceration. United States v. Tabib, 06-Cr-00025 (C.D. Cal. 2006). U.S. Fighter Jet and Military Helicopter Components to Iran - Camnetics Manufacturing Corporation in Utah and its vice president, William Manning; Equipment and Supply International of N. C. and its chief Andrew Adams; as well as Rick's Manufacturing and Supply Company of Okla., and Jami S. Choudhury were charged with violating the Arms Export Control Act for illegally exporting components for F-4 fighter jets, S-65 Sikorsky military assault helicopters and other aircraft to undercover ICE agents. The undercover negotiations indicated that the military components were destined for Iran. William Manning was sentenced to three years probation and fined $5,000. Andrew Adams was sentenced to three years probation and fined $25,000. Jami S. Choudhury was sentenced to credit time served (3 years) and fined $2,000. United States v. Choudhury, 02-Cr-00261 (E.D. Wis. 2002). Sensitive U.S. Technology to Iran Juan Sevilla pleaded guilty to two counts of violating 50 USC Section 1702: International Emergency Economic Powers Act; and 1705(b): Iranian Transaction Regulations. Sevilla, the sales director of United Calibration Corp was charged with attempting to illegally export sensitive U.S. technology to Iran in violation of the U.S. embargo on Iran. Sevilla attempted to export a machine that measures the tensile strength of steel and related software technologies from Calif., through Chicago, to Iran, in violation of the embargo. Sevilla was sentenced to five years probation. United States v. Sevilla, 04-00171 (N.D.Ill. 2004). Sensitive Night Vision Technology to Iran - Erik Kyriacou pled guilty to a
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four-count indictment charging him with attempting to illegally export sensitive Astroscope night vision lenses to Iran. The lenses had been stolen from NBC News in New York. Kyriacou was attempting to sell the lenses on the Internet via e-bay to undercover ICE agents posing as international arms brokers. Undercover agents informed Kyriacou that the lenses would be going to Iran in violation of the Iranian embargo and other export laws. Kyriacou agreed to the sale and illegally exported the devices to undercover ICE agents believing that they were destined for Iran. Erik Kyriacou was sentenced to 5 years probation, 4 months house arrest and ordered to pay $8,000 in restitution. United States v. Kyriacou, 04-Cr-00265 (E.D. Pa. 2004). Military Patrol Vessels to Iraq - A federal grand jury in Washington, D.C. charged Regard Yakou with violations of the Arms Export Control Act for allegedly brokering the sale of 6 armored patrol boats, worth a total of $11 million, to the former regime in Iraq. Yakou pleaded guilty and was sentenced to one year probation. United States v. Yakou, 04-Cr-00290 (D.D.C. 2004). U.S. Night Vision Technology to China - William Wain Lin Lam, pled guilty in the District of Connecticut to one count of 18 USC 554: Smuggling Goods from the United States. The conviction was the result of an ICE and Defense Criminal Investigative Service undercover investigation, which revealed that Lam was seeking to purchase and export U.S. Generation III night vision devices to China . Mr. Lim Lam was sentenced to 14 months incarceration. United States v. Lam, 06-Cr-00290 (D. Conn. 2006). Night Vision Technology and Electronics Components to China - An ICE investigation led to the arrest of Zhu and John Chu for conspiring to violate the Arms Export Control Act (AECA): 22 USC 2778 and 18 USC 371 for their efforts to obtain U.S. origin Generation III night vision equipment, military grade power converters and traveling wave tubes used in satellite and radar applications for export to China. On September 28, 2005, Zhao Xin Zhu was sentenced to 24 months imprisonment after pleading guilty to one count of conspiracy, 18 USC 371. United States v. Zhaoxin, 04-Cr-10156 (D. Mass. 2004). Missile Components to China Zhan Gao was sentenced in the Eastern District of Virginia for illegally exporting sensitive U.S. technology with potential military applications to China. The technology exported by Gao could be used in missile guidance and airborne battle management systems. Gao and her husband, Donghua Xue, pleaded guilty and agreed to forfeit roughly $590 thousand that they had received from China as payment for the
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exports. Gao received a sentence of 15 months, including 7 months imprisonment followed by 8 months community confinement. United States v. Gao, 03-Cr-00333 (E.D. Va. 2003). Military Equipment to Honduras - On August 18, 1999, Peter L. Appelbaum, president of Pacorp, Inc., Miami, Florida, pled guilty in this district to charges of violating the Arms Export Control Act and the International Emergency Economic Powers Act by illegally exporting defense articles and crime control equipment to Honduras without the required State Department and Commerce Department licenses. The exported items included night vision equipment subject to the International Traffic in Arms Regulations, handcuffs, shackles, fingerprint powders, and dyes subject to the EAR. Mr. Appelbaum was sentenced to five years probation. United States v. Appelbaum, 99-Cr-00530 (S.D. Fla. 1999).

These analogous arms embargo cases should guide the imposition of a reasonable sentence by this Court. By the time of his sentencing, Mr. Keshari will have spent almost 11 months in prison. Accordingly, if the Court sentences Mr. Keshari to a year-and-a-day, a sentence in line with the above cases, he can start rebuilding his life. SPECIFIC OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT We respectfully object to the following paragraphs in the PSI: 1. Pages 5-9, 10-31: Although these paragraphs have no impact on the ultimate sentence, we note that they go far beyond the facts presented as the factual basis for the plea and what the parties agreed to. Page 18, 84: The PSI incorrectly states that Mr. Keshari has $59,766.00 in a Wells Fargo bank account. This money was seized by the government at the time of Mr. Kesharis arrest and he has agreed to forfeit this money. Page 19, 84: The probation office has mistakenly indicated that the Bank of America Visa debt balance is $2,400. The actual debt balance is $24,000. Moreover, the following expenses are NOT listed in the PSI: Mortgage payment for 848 Diablo Ave.: $2,285.00/mo. Condominium Association Fee: $350.00/mo. Property Taxes for 848 Diablo Ave.: $5,000.00/year
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2.

3.

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Property Taxes for 319 Fairway Drive: Homeowners Insurance: Health Insurance:

$9,000.00/year $1,200.00/year $470.00/mo.

4.

Page 20, 88: The probation department reports that the fair market value of Mr. Kesharis home is $881,000.00. As of April 16, 2009, the same website used by probation, Zillow.com, listed the FMV price as $838,000.00. Even that is too high as the last two comparable homes in that neighborhood sold for $750,000.00 and $680,000.00. Given the current real estate market in California it is more likely that the home is worth between $650,000.00 and $700,000.00. Page 21, 93: The Defendant is the sole breadwinner for his family. He has two minor children who live with Mrs. Keshari in their marital home. As a result of his arrest, and not having Mr. Kesharis income to cover expenses, the family has utilized credit cards and savings. Mr. Keshari simply does not have the ability to pay a fine given the present familial circumstances. The government agrees that no fine should be imposed.

6.

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CONCLUSION We respectfully suggest that a sentence of credit time served is sufficient but not greater than necessary under Section 3553. We are hopeful that the above memo has given this Court a sense about Mr. Kesharis character. We look forward to presenting additional facts to the Courts attention at the sentencing hearing. Respectfully submitted, D AVID O SCAR M ARKUS, PLLC 169 East Flagler Street, Suite 1200 Miami, FL 33131 Tel: (305)379-6667 Fax: (305)379-6668 www.markuslaw.com

By:

/s/ David Oscar Markus D AVID O SCAR M ARKUS Florida Bar Number 119318 DMarkus@MarkusLaw.com

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by CM/ECF this 17th day of April, 2009.

/s/ David Oscar Markus David Oscar Markus

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