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United States v. Afshari

April 14, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
1) HOSSEIN KALANI AFSHARI 2) MOHAMMAD HOSSEIN OMIDVAR 3) HASSAN REZAIE 4) ROYA RAHMANI 5) NAVID TAJ 6) MOUSTAFA AHMADY 7) ALIREZA MOHAMMADMORADI DEFENDANTS.



The opinion of the court was delivered by: David O. Carter United States District Judge

ORDER DENYING MOTION BY DEFENDANTS TO INVALIDATE GOVERNMENT'S § 3292 APPLICATIONS (Motion No. 7)

This matter has come before the Court on the motion filed July 15, 2008, by Defendants Roya Rahmani, Alireza Mohammadmoradi, Moustafa Ahmady, Hossein Kalani Afshari, Hassan Rezaie, Navid Taj and Mohammad Hossein Omidvar ("Defendants") to invalidate the Government's 18 U.S.C. § 3292 applications (Doc. No. 795) (Motion to Dismiss No. 7). Having considered the record herein, including the oral argument of counsel, the Court finds as follows:

I. PROCEDURAL BACKGROUND

On July 28, 2003, after the Indictment had been filed herein, the Government lodged with the Court an application pursuant to 18 U.S.C. § 3292, seeking an order suspending the running of the statute of limitations with respect to:

Roya Rahmani, Alireza Mohammadmoradi, Hassan Rezaie, Mustafa [sic] Ahmadi, Hossein Afshari, and others, for possible violations of United States criminal laws, including: conspiring to commit federal crimes; obtaining money by means of false and fraudulent pretenses; obtaining money through fraudulent use of credit card numbers; laundering fraudulently obtained money through many different bank accounts; transferring proceeds of criminal activity overseas; engaging in monetary transactions in criminally derived property, each transaction having a value greater than $10,000; perpetrating immigration fraud; testifying perjuriously; and acting in violation of export control laws . . .[in violation of] Title 18, United States Code, Sections 2 (aiding and abetting), 371 (conspiracy), 1015 (naturalization document fraud), 1341 (mail fraud), 1343 (wire fraud), 1546 (immigration fraud), 1621 (perjury), 1623 (false declarations under oath), 1956 (money laundering), 1957 (money laundering), and Title 50, United States Code, Sections 1701 -02/1705(b) (export control).

Exhibit MM to Government's Exhibits (Part II) in Support of Opposition to Motions to Dismiss ("Gov't's Exhibits Part II"), filed 09/10/2008, Doc. No. 829.

On August 22, 2003, the §3292 application was granted, suspending the statute of limitations for any and all federal offenses relating to Roya Rahmani, Alireza Mohammadmoradi, Hassan Rezaie, Mustafa [sic]

Ahmady, Hossein Afshari, and others, for possible violations of United States criminal laws, including: conspiring to commit federal crimes; obtaining money by means of false and fraudulent pretenses; obtaining money through fraudulent use of credit card numbers; laundering fraudulently obtained money through many different bank accounts; transferring proceeds of criminal activity overseas; engaging in monetary transactions in criminally derived property, and each transaction having a value greater than $10,000; perpetrating immigration fraud; testifying perjuriously; and acting in violation of export control laws . . . [including, but not limited to,] violations of 18 U.S.C. §§ 2, 371, 1015, 1341, 1343, 1546, 1621, 1623, 1956, 1957, and Title 50, United States Code, Sections 1701 - 02/1705(b), . . . [effective] May 31, 2002 (the date of the submission of the earliest request for foreign assistance which remains pending [at the time of the order]).

Exhibit NN to Gov't's Exhibits Part II

On June 14, 2005, the First Superseding Indictment was filed herein under seal. First Superseding Indictment, filed 06/14/2005, Doc. No. 339. On February 5, 2007, it was unsealed. Criminal Minutes, 02/05/2007, Doc. No. 417.

On November 13, 2007, the Government lodged with the Court another application pursuant to § 3292 seeking a second order suspending the running of the statute of limitations for the same period as that covered by the first application with respect to the same defendants and same offenses, but adding the names of Defendants Navid Taj, Mohammad Hossein Omidvar, Mohammad Bigdeli and Elham Kiamanesh, and adding the offenses of mail fraud, wire fraud, bank fraud, immigration fraud, and providing false information to financial institutions and violations of 18 U.S.C. §§ 1014, 1344, and 1425. Exhibit OO to Gov't's Exhibits Part II. On November 16, 2007, the second § 3292 application was granted. Exhibit PP to Gov't's Exhibits Part II.

Thereafter, on November 29, 2007, the Second Superseding Indictment was filed herein. Second Superseding Indictment, filed 11/29/2007, Doc. No. 677.

II. DISCUSSION

Defendants argue that the Government's applications are invalid as there are no new offenses alleged in the First and Second Superseding Indictments because the term, "offense," as used in § 3292, means course of conduct. However, § 3292 refers to "evidence of an offense," "the statute of limitations for the offense," and "periods of suspension . . . with respect to an offense." Such use of the term, "offense," ...


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