United States v. Soleimani

UNITED STATES OF AMERICA v. MASOUD SOLEIMANI, MAHBOOBE GHAEDI, and MARYAM JAZAYERI

CRIMINAL CASE NO. 1:18-cr-00216-ELR-RGV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

September 25, 2019

MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND ORDER

Defendants Masoud Soleimani ("Soleimani"), Mahboobe Ghaedi ("Ghaedi"), and Maryam Jazayeri ("Jazayeri"), collectively referred to as "defendants," are charged in a two-count superseding indictment with knowingly and willfully conspiring to violate the Iranian Transactions and Sanctions Regulations ("ITSR"), in violation of 50 U.S.C. § 1705 and 31 C.F.R. §§ 560.203 and 560.204, and knowingly and willfully attempting to export biological items from the United States to Iran without first obtaining the required authorization from the United States Department of Treasury's Office of Foreign Assets Control ("OFAC"), in violation of 50 U.S.C. § 1705, 31 C.F.R. §§ 560.203, 560.204, and 18 U.S.C. § 2. [Doc. 16].¹Defendants Jazayeri and Ghaedi have filed motions to sever, [Docs. 92 & 93], which the government opposes, [Doc. 100], and each defendant has filed a motion to dismiss the superseding indictment, [Docs. 77, 87, & 88],² to which the government has filed a consolidated response, [Doc. 99].³ Defendant Jazayeri also has filed a motion to suppress statements, [Doc. 86], and following an evidentiary hearing on June 6, 2019,⁴ the parties filed post-hearing briefs, [Docs. 114 & 116].⁵ For the reasons that follow, it is RECOMMENDED that Jazayeri and Ghaedi's motions to sever, [Docs. 92 & 93], defendants' motions to dismiss, [Docs. 77, 87, & 88], and Jazayeri's motion to suppress statements, [Doc. 86], be DENIED.

I. INTRODUCTION

On October 24, 2018, a federal grand jury in the Northern District of Georgia returned a superseding two-count indictment against defendants. [Doc. 16]. According to the allegations of the superseding indictment, the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701-1706, "conferred upon the United States President the authority to deal with unusual and extraordinary threats to the national security and foreign policy of the United States," and that by Executive Order No. 12170, issued on November 14, 1979, President Jimmy Carter "found that 'the situation in Iran constitute[d] an unusual and extraordinary threat to the national security, foreign policy and economy of the United States and declare[d] a national emergency to deal with that threat.'" [Id. ¶¶ 1-2 (last alteration in original)]. Subsequently, on March 15 and May 6, 1995, President William J. Clinton issued Executive Order Nos. 12957 and 12959, which prohibited "the exportation, re-exportation, sale or supply, directly or indirectly, to Iran of any goods, technology, or services from the United States or by a United States person, and on August 19, 1997, [] Executive Order No. 13059 [was issued], clarifying the previous orders," and these "Executive Orders authorized the United States Secretary of Treasury to promulgate rules and regulations necessary to carryout the Executive Orders." [Id. ¶ 3]. "Pursuant to this authority, the Secretary of the Treasury promulgated the [ITSR] in October 2012." [Id.].

The superseding indictment further explains that 31 C.F.R. § 560.204 of the ITSR prohibits:

the exportation, re-exportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, of goods, technology, or services to Iran or the Government of Iran (with certain limited exceptions), including the exportation, re-exportation, sale or supply of goods, technology or services to a third country knowing that such goods, technology or services are intended for Iran or the Government of Iran, without a license from [OFAC].

[Id. ¶ 4]. It also "forbid[s] a United States person from engaging in any transaction or dealing in or related to goods, technology or services that are exported, re-exported, sold or supplied, directly or indirectly, to Iran or the Government of Iran, without having obtained a valid OFAC license," as well as prohibiting "transactions that evade or avoid, have the purpose of evading or avoiding, cause a violation of, or attempt to violate, the ITSR." [Id. ¶¶ 5-6 (citing 31 C.F.R. §§ 560.203, 560.206)].

The superseding indictment alleges that Soleimani, who was located in Iran, "identified to defendant [Ghaedi], a Research Assistant Professor at a United States university during the [relevant] time period . . ., the biomedical material he wanted, including biomedical vectors and human growth factors," and that Ghaedi "obtained the requested biological material from U.S. companies on behalf of[Soleimani]," which "were subsequently delivered to [Ghaedi] at the United States university." [Id. ¶¶ 10(a)-(b)]. Thereafter, Soleimani allegedly "solicited from, and defendant [Jazayeri] agreed to carry, the biological material from the United States for delivery in the Islamic Republic of Iran without first obtaining the required licenses and authorizations from OFAC" and Ghaedi "agreed to and [] shipp[ed the] biological material intended for delivery to Iran to defendant [Jazayeri] at a U.S. address provided by [Jazayeri]." [Id. ¶¶ 10(c)-(d)]. Jazayeri then allegedly "concealed [the] biological material within items that [she] intended to transport to Iran." [Id. ¶ 10(e)]. The superseding indictment further alleges that "[a]t no time relevant . . . did the defendants . . . receive or possess a license or authorization from the OFAC to export goods . . . to the Islamic Republic of Iran." [Id. ¶ 7].

Based on these allegations, the superseding indictment charges in Count One that, "[b]eginning in or about November 2014 and continuing through on or about September 6, 2016," the defendants "knowingly and willfully combine[d], conspire[d], confederate[d], and agree[d] with one another and with others known and unknown . . . to commit an offense against the United States[ by] export[ing] goods from the United States to the Islamic Republic of Iran without having first obtained the required licenses and authorizations from the OFAC." [Id. ¶ 8]. Count Two charges:

Beginning in or about December 2015, and continuing through on or about September 6, 2016, in the Northern District of Georgia and elsewhere, the defendants . . . aided and abetted by one another, knowingly and willfully attempted to export United States origin goods from the United States to the Islamic Republic of Iran, those being vials containing biological material to include HGF - Hepatocyte Growth Factor, Activin A, SCF - Stem Cell Factor(s), Macrophage Colony Stimulating Factor(s), and bFGF - Basic Fibroblast Growth Factor, without having first obtained the required authorization from OFAC, in violation of the [IEEPA], Title 50 United States Code, Section 1705, and Title 31, Code of the Federal Regulations, Sections 560.203 and 560.204; and Title 18, United States Code, Section 2.

[Id. ¶ 12]. Defendants have filed several pretrial motions, [Docs. 77, 86, 87, 88, 92, 93], which are now fully briefed and ripe for ruling.

II. DISCUSSION

A. Motions to Sever, [Docs. 92 & 93]

Defendants Jazayeri and Ghaedi contend that their trials should be severed from each other as well as from Soleimani's trial under Federal Rule of Criminal Procedure 14(a). [Docs. 92 & 93]. In particular, Jazayeri asserts that "[b]ased on the discovery that has been produced to date, it appears that the bulk of the Government's case against [her] relies on three kinds of evidence: the seizure of growth factors from [her] luggage as she attempted to board a connecting flight to Iran, statements [she] made to law enforcement regarding that seizure, and emails exchanged between [her] and [] Soleimani, her former professor and mentor in Iran," but that "she did not know taking growth factors to Iran was prohibited" andthat while "evidence against [her] at trial will generally be limited to her alleged attempt to take growth factors to Iran in 2016 and her communications with [] Soleimani regarding that conduct," the "Government's case against [] Soleimani and [] Ghaedi is significantly broader . . . and will feature substantially more evidence, including evidence that [] Soleimani and [] Ghaedi engaged in many other transactions that did not involve [her] and that they had considerably more knowledge regarding the prohibitions on exporting to Iran." [Doc. 92 at 1-3]. She therefore asserts that "[b]oth in quantity and quality, there is a stark contrast between the Government's evidence against [her] and its evidence against her co-defendants, creating a substantial risk that [she] will be unduly prejudiced if they are all tried together," and that a severance is warranted "[t]o avoid a verdict of 'guilt by association.'" [Id. at 4-5].

Ghaedi has also moved to sever her trial from her co-defendants, contending that "the Government's disclosures reflect a lengthy, in-depth investigation into and substantial evidence involving individuals other than [her]; namely, one or both of [her] co-defendants in this case and apparently several unindicted or separately indicted co-conspirators who have no direct ties to [her]," and that "[i]f offered as evidence in a joint trial, this type of material will rob [her] of her ability to present her defense and/or force her to testify at trial in violation of her Constitutionalrights," thereby "improperly shift[ing] the burden to her to establish her innocence." [Doc. 93 at 4 (emphasis omitted)]. In the alternative, Ghaedi requests that, if the Court is not inclined to sever at this stage of the litigation, that it "order the Government to identify the specific evidence they intend to use in their case-in-chief sufficiently in advance of trial for [] Ghaedi to renew this motion, as appropriate, prior to or during trial." [Id. at 5].

In its consolidated response, the government argues that severance is not warranted in this case because Jazayeri and...