Sarvestani v. United States

• Decision Date: 25 November 2015
• Docket Number: 13 Cr. 214 (PGG),13 Civ. 7708 (PGG)
• Parties: SEYED AMIN GHORASHI SARVESTANI, Petitioner, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of New York

SEYED AMIN GHORASHI SARVESTANI, Petitioner, v. UNITED STATES OF AMERICA, Defendant.

13 Cr. 214 (PGG)

13 Civ. 7708 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 25, 2015

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

On May 8, 2013, Petitioner Seyed Amin Ghorashi Sarvestani pleaded guilty to conspiracy to violate the International Emergency Economic Powers Act (the "IEEPA" or the "Act"), 50 U.S.C. §§ 1701-07, as well as 31 C.F.R. §§ 560.203 and 560.204, in violation of 18 U.S.C. § 371. On August 14, 2013, this Court sentenced Petitioner to thirty months' imprisonment and a $100,000 fine. See Judgment (Dkt. No. 25).¹ Petitioner now moves, pursuant to 28 U.S.C. § 2255, to vacate his sentence. (No. 13 Cr. 214, Dkt. No. 50; No. 13 Civ. 7708, Dkt. No. 1) For the reasons stated below, Petitioner's motion will be denied.

BACKGROUND

Information 13 Cr. 214 charges Petitioner with conspiring to "export, cause to be exported, sell, and supply, directly and indirectly, from the United States, goods, technology, and services, to wit, satellite telemetry and other equipment supplied by companies in the United States, to customers located in Iran, without obtaining the required approval of the Office of Foreign Assets Control, within the United States Department of the Treasury, in violation of [the IEEPA,] Title 50, United States Code, Section 1705, and Title 31, Code of Federal Regulations,Sections 560.203 and 560.204." (Information 13 Cr. 214 (Dkt. No. 13) ¶ 5). The Information alleges that Petitioner's criminal conduct took place between November 2005 and 2012. (Id. at ¶ 4)

"The IEEPA . . . confers on the President certain powers to respond to any threat to the national security, foreign policy or economy of the United States that is 'unusual and extraordinary' and that 'has its source in whole or substantial part outside the United States.'" United States v. Dhafir, 461 F.3d 211, 213 (2d Cir. 2006) (quoting 50 U.S.C. § 1701(a)). "These powers may be exercised only if and when the President declares a national emergency with respect to the threat, 50 U.S.C. § 1701(a), in which event '[t]he President may issue such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by this title.'" Id. (quoting 50 U.S.C. § 1704). The IEEPA makes it "unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under [the Act]." 50 U.S.C. § 1705(a). The IEEPA provides that "[a] person who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of, an unlawful act [as defined in the Act] . . . shall, upon conviction, be fined not more than $1,000,000, or . . . may be imprisoned for not more than 20 years, or both." 50 U.S.C. § 1705(c).

"Pursuant to [an Executive Order], on November 17, 1987, [the Office of Foreign Assets Control of the U.S. Department of the Treasury ('OFAC')] issued the Iranian Transaction Regulations (the 'ITR)." Weinstein v. Islamic Republic of Iran, 299 F. Supp. 2d 63, 68 (E.D.N.Y. 2004). These regulations "prohibited, inter alia, the importation of goods and services from Iran and the exportation, reexportation, and sale or supply of goods, technology or services to Iran." Id. (citing 31 C.F.R. §§ 560.201, 560.204). "On March 15, 1995, President Clintonissued [Executive Order] 12957, declaring a national emergency regarding actions and policies of Iran and imposing additional sanctions against Iran, invoking the authority of, inter alia, the IEEPA." Id. (citing Executive Order 12957, 60 Fed. Reg. 14615 (Mar. 15, 1995)). "Thereafter, the ITR were amended to reflect the broader prohibitions imposed by [Executive Order 12957 and other Executive Orders] regarding Iran and affecting goods, technology, services and related financial transactions, and new investment." Id. (citing 31 C.F.R. §§ 560.204-208).

31 C.F.R. § 560.204 - one of the Iranian Transaction Regulations - provides that

Except as otherwise authorized pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to May 7, 1995, the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, technology, or services to Iran or the Government of Iran is prohibited, including the exportation, reexportation, sale, or supply of any goods, technology, or services to a person in a third country undertaken with knowledge or reason to know that:

(a) Such goods, technology, or services are intended specifically for supply, transshipment, or reexportation, directly or indirectly, to Iran or the Government of Iran; or

(b) Such goods, technology, or services are intended specifically for use in the production of, for commingling with, or for incorporation into goods, technology, or services to be directly or indirectly supplied, transshipped, or reexported exclusively or predominantly to Iran or the Government of Iran.

31 C.F.R. § 560.204.

Another Iranian Transaction Regulation - 31 C.F.R. § 560.203 - provides that

(a) Any transaction on or after the effective date that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this part is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this part is prohibited.

31 C.F.R. § 504.203.

On May 30, 2013 - after the time period in which the Information alleges Petitioner's criminal conduct took place (i.e., November 2005 to 2012, see Information 13 Cr. 214 (Dkt. No. 13) ¶ 4), OF AC issued "General License D," which provides that certain transactions are exempt from the prohibitions of the ITR. (See Def. Sent. Br. (Dkt. No. 20), Ex. 5 ("General License D")) General License D authorizes, inter alia, "[t]he exportation or reexportation, directly or indirectly, from the United States or by U.S. persons, wherever located, to persons in Iran of consumer-grade Internet connectivity services and the provision, sale, or leasing of capacity on telecommunications transmission facilities (such as satellite or terrestrial network connectivity) incident to personal communications." (Id. at 2) General License D does not authorize "[t]he exportation or reexportation, directly or indirectly, of commercial-grade Internet connectivity services or telecommunications transmission facilities (such as dedicated satellite links or dedicated lines that include quality of service guarantees)." (Id. at 3 (emphasis added)) The Annex to General License D states that "[r]esidential consumer satellite receive-only terminals, receiver equipment . . . designated EAR99 . . . ;² drivers, communications, and connectivity software for such hardware designated EAR99 . . . ; and services necessary for the operation of such hardware and software" are authorized for exportation and reexportation to Iran by General License D. (Id. at 5)

On February 7, 2014, OF AC issued "General License D-1," which "replaces and supersedes in its entirety [General License D] . . . ." OF AC General License D-1, Section (e),available at http://wwwireasury.gov/resource-center/sanctions/Programs/Documents/iran_gld1.pdf. General License D-1 "clarifie[s] certain aspects of General License D, and add[s] certain new authorizations relating to the provision to Iran of certain hardware, software, and services incident to personal communications." Sudanese Sanctions Regulations, 80 Fed. Reg. 8532 (Feb. 18, 2015). The Annex to General License D-1 states that "[r]esidential consumer satellite terminals, transceiver equipment (including but not limited to antennae, receivers, set-top boxes and video decoders) designated EAR99 . . . and services necessary for the operation of such hardware and software" may be exported and reexported to Iran. OF AC General License D-1, Annex, available at http://www.treasury.gov/resource-center/sanctions/Programs/Documents/iran_gld1.pdf.

In connection with General License D-1, OFAC also posted a list of "Frequently Asked Questions" about General License D-1 on its website. It states that "[s]atellite terminals and other equipment listed in category (4) of the Annex to [General License D-1] . . . shall be deemed 'residential consumer' if the equipment is designated EAR99 . . . ." Questions as to Specific Software, Hardware, and Services Covered by General License D-1 for Iran and 31 C.R.F. § 538.533 for Sudan (the "Personal Communications GLs"), http://www.treasury.gov/resource-center/sanctions/Programs/Documents/gl_d1_faqs_update.pdf.

PROCEDURAL HISTORY

Petitioner pleaded guilty to Information 13 Cr. 214 on May 8, 2013. Pursuant to a plea agreement, Petitioner admitted that, during the period between November 2005 and 2012, he had conspired to "export, cause to be exported, sell, and supply, directly and indirectly, from the United States, goods, technology, and services, to wit, satellite telemetry and other equipment supplied by companies in the United States, to customers located in Iran, without obtaining therequired approval of [OFAC]." (Information 13 Cr. 214 (Dkt. No. 13) ¶ 5; Plea Tr. (Dkt. No. 68))

In the plea agreement, Petitioner agreed that he

[would] not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255. . . ; nor seek a sentence modification pursuant to Title 18, United States Code, Section 3582(c), of any sentence within or below the Stipulated Guidelines Range of 57 to 71 months' imprisonment . . . .

(Govt. Opp. Br. (Dkt. No. 59), Ex. A (Plea Agmt.) at 4) During Petitioner's plea allocution, he stated that he had read the plea agreement before he signed it, discussed it with his attorneys, and "fully under[stood] all the terms of the plea agreement...