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U.S. v. HOSSEINI

June 23, 2005.

UNITED STATES OF AMERICA
v.
AMIR HOSSEINI, et al.



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On April 12, 2005, this Court Ordered, pursuant to 18 U.S.C. § 3142, that Amir Hosseini be detained at the Metropolitan Correctional Center pending trial or other resolution of this matter. The Court did so because it concluded, based upon the evidence and arguments put forth at a detention hearing held shortly after Mr. Hosseini's arrest, that Mr. Hosseini "has the means and the motive to flee the jurisdiction, and so is a risk of flight." See Order of Detention Pending Trial, p. 6 (April 12, 2005). Mr. Hosseini has now asked the Court to reconsider that position and to release him on bail. For the reasons explained below, the Court grants Mr. Hosseini's motion.

Background

  On March 21, 2005, Amir Hosseini was arrested in connection with a criminal complaint alleging that he conducted and participated in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d). Specifically, the complaint alleges that Mr. Hosseini directed and committed various criminal predicate acts including money laundering, in violation of 18 U.S.C. § 1956; engaging in and attempting to engage in monetary transactions in criminally derived property valued at more than $10,000, in violation of 18 U.S.C. § 1957; mail fraud, in violation of 18 U.S.C. § 1341; bank fraud, in violation of 18 U.S.C. § 1344; and structuring monetary transactions to evade reporting requirements, in violation of 31 U.S.C. §§ 5324 and 5322(b). The government alleges in its complaint that, from 1995 to the time of the complaint, Mr. Hosseini, who owned and operated a car dealership located at 3356 West North Avenue, and had an ownership interest in two other car dealerships, helped gang members and drug dealers launder their money by selling them high-end cars for cash at that dealership, and that he did so without reporting the cash transactions to the IRS, and in a manner that was calculated to disguise the true nature of the transactions. The government alleges that, in total, Mr. Hosseini and his co-defendants "laundered over $9 million for Chicago's street gangs and international drug traffickers." Government's Response to Hosseini's Motion to Reconsider Release on Bail, p. 2. According to the government, Mr. Hosseini faces a maximum twenty-year sentence if convicted on the conduct charged in the complaint.*fn1 On March 25, 2005, the Court held a detention hearing; Mr. Hosseini was present and was represented by Elliot Samuels. The government indicated that it was seeking detention for Mr. Hosseini, and, as part of its proffer, it called to the stand Lynsey Roever, who works as a uniformed officer for Customs and Border Protection at O'Hare airport. Ms. Roever testified that, based upon information she received from the FBI, on February 8, 2005, she met Mr. Hosseini at the airport when he got off a flight from Germany, and she escorted him to the immigration booth, where she questioned him and searched his luggage. She testified that, during her encounter with Mr. Hosseini, she asked him if he had any other passports, and he said that he did not. Transcript of Proceedings of March 25, 2005, p. 50 (attached as Exhibit A to the Government's Response to Hosseini's Motion to Reconsider Release on Bail). She further testified that she later repeated her question about whether he had any other passports and, that time, Mr. Hosseini pulled out an Iranian passport and gave it to her. Id., p. 52.

  On cross-examination, Ms. Roever admitted that she did not know whether a person — including a United States citizen — would need an Iranian passport to go to Iran; she also testified that Mr. Hosseini was cooperative throughout his encounter with her, that he freely provided his address, business information, his reason for traveling to Iran, etc. Id., p. 57.

  With respect to the passport issue, the government emphasized that, in its view, Mr. Hosseini lied about having an Iranian passport, and that he did so because he wanted to conceal the fact that he had been traveling to Iran at least twice a year, all of which suggests that he is a flight risk. Transcript of Proceedings of March 25, 2005, pp. 60-61. The government also noted that, at least according to the stamps in his passports, Mr. Hosseini had traveled to Switzerland, Mexico, Saudi Arabia, Italy, Germany, Amsterdam, the United Arab Emirates, Bahrain, and Canada, which, according to the government, "bare[s] out the fact that he is an international money launderer, as well as laundering all this drug money locally, as well as engaging in international narcotics trafficking. . . ." Transcript of Proceedings of March 25, 2005, pp. 66-67.

  In response to the government's proffer, Mr. Hosseini called to the stand FBI Agent Robert Walker, the agent who signed the complaint and whose sworn affidavit is attached to the complaint. On direct questioning from Mr. Hosseini's counsel, Agent Walker admitted that most of the people he interviewed in connection with his investigation of Mr. Hosseini and the dealerships with which he is involved were "unsavory," that most hoped to gain something from the government in return for their cooperation. Transcript of Proceedings of March 25, 2005, pp. 76-78. On cross-examination by the government, Agent Walker then spelled out in detail his understanding of Mr. Hosseini's role in the enterprise alleged in the complaint; he testified that, in his interviews with various people, he heard that Mr. Hosseini "is involved in the importation and distribution of both heroin and cocaine, and he also launders money by allowing the drug dealers to purchase cars there with cash, which he hides through using straw buyers as the recipient purchaser on the sales contract and not reporting the IRS Form 8300s properly." Id., p. 79. He further testified that, according to CW-1,*fn2 Mr. Hosseini:
helped set up the supply line for the heroin with the individuals in Iran. He stored the drugs, at least portions of the drugs on his car lot. He distributed the drugs through cars on his lot, which is consistent with what I have heard from other drug dealers who purchased from him.
Id., p. 86.

  Based upon this proffer, including the testimony of Agent Walker, the AUSA argued

 
I can't think of any combination of conditions that you could fashion that would ameliorate the danger he presents to the community and the extreme risk of flight he poses.
  Quite frankly, I cannot think of a more compelling case on flight risk than has been presented before this Court today. Id., p. 92. In particular, the government noted that Mr. Hosseini has "not only the motive, but the means to flee, and extreme ties to foreign countries." Id. at 97. The government urged the Court to "look at the amount of foreign travel alone." Id.

  In response, counsel for Mr. Hosseini argued that his client had been under investigation since 1996, and that, given his passports, if he had wanted to flee the jurisdiction, he could have done so; instead, he stayed, and even returned from a trip to Iran as recently as February 2005. Transcript of Proceedings of March 25, 2005, p. 94.

  At the close of counsel's arguments, the Court found as follows:
I think the the strength of the evidence is very — is very strong.
* * *
I believe that Mr. Hosseini, who has passports from both Iran and the United States, and also his family has passports, which we could have them to turn in, but the frequent travel, the 20 to 45 trips abroad or stops abroad by Mr. Hosseini and most of which were in Iran, would indicate to the Court that the defendant, if released on bail, will have the means and the motive to flee the jurisdiction, so I'm going to hold him as a risk of flight.
Transcript of Proceedings of March 25, 2005, p. 100. On April 12, 2005, the Court issued an Order of Detention, which had been prepared by the government. As reflected in that Order, significant to the Court's decision to detain Mr. Hosseini were: the fact that Mr. Hosseini held a valid Iranian passport in addition to his valid U.S. passport; the fact that Mr. Hosseini's passports revealed, in the Court's view, an extraordinarily high number of trips to Iran and other foreign countries — more specifically, the passports indicated that, during the period from about 1995 through 2005, Mr. Hosseini made 3 trips to Turkey, 29 trips to Iran, and 25 trips to other foreign countries. See Order of Detention Pending Trial, pp. 4-5 (April 12, 2005).

  On May 6, 2005, Mr. Hosseini, through his counsel, filed a Motion to Reconsider Release on Bail. The government responded, and the Court held a hearing on the motion on June 14, 2005. Mr. Hosseini, who was present in Court and represented by counsel, did not put on any witnesses; nor did the government. Mr. Hosseini's attorney argued that, based upon what he had learned from certain State Department documents, the Court's decision to detain Mr. Hosseini was based upon faulty assumptions and should, therefore, be revisited. The government argued that nothing had changed since the Court's initial detention order, and that the Court should, therefore, decline to release Mr. Hosseini. The purpose of this Memorandum Opinion and Order is to set forth the Court's views of the information submitted in the briefs and at the hearing, as well as the Court's findings, conclusions and Order concerning the continued appropriateness of detention. Discussion

  "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). Thus, the decision to detain an unconvicted person — who is still presumed to be innocent — should not be lightly made. Under the Bail Reform Act, a person facing charges in the federal court system may be detained only when a judicial officer has determined that "no other less drastic means can reasonably ensure his presence at trial," and "reasonably assure . . . the safety of any other person and the community. . . ." See 18 U.S.C. § 3142(e); Bell v. Wolfish, 441 U.S. 520, 524 (1979).

  Before turning to the merits of Mr. Hosseini's motion, the Court quickly considers — and rejects — the government's argument that the motion is improper. The government argues that the motion presents nothing new in the way of evidence or information, and that what it does present was available to Mr. Hosseini at the time of the first hearing. Section 3142(f) allows the court to reopen a detention hearing "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. . . ." Mr. Hosseini's briefs and arguments have provided the Court with additional information that gives context to the evidence presented by the government at the March 25th hearing; without casting aspersions, that information sheds a decidedly different light on the evidence presented by the government in support of its detention request. And, although the information may have been available at the time of the hearing, there is nothing in the record to suggest that counsel or Mr. Hosseini knew about it at the time of the first hearing, which is what the statute requires. Certainly, the importance of the information could not have been clear at that ...


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