U.S. v. Khorrami

• Decision Date: 05 June 1990
• Docket Number: No. 88-3258,88-3258
• Citation: 895 F.2d 1186
• Parties: 29 Fed. R. Evid. Serv. 669 UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Farhad KHORRAMI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1186

895 F.2d 1186

29 Fed. R. Evid. Serv. 669

UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Farhad KHORRAMI, Defendant-Appellant.

No. 88-3258.

United States Court of Appeals Seventh Circuit.

Argued May 31, 1989.

Decided Feb. 16, 1990.

Rehearing and Rehearing En Banc Denied June 5, 1990.

Paula E. Lopossa, Asst. U.S. Atty., Office of the U.S. Atty., and Susan Heckard, Indianapolis, Ind., for plaintiff-appellee.

Steven J. Glazier, Mantel, Cohen, Garelick, Reiswerg & Fishman and Richard L. Darst, Indianapolis, Ind., for defendant-appellant.

Before CUMMINGS and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Defendant-appellant, Mohammed Farhad Khorrami, appeals from convictions for mailing threatening communications, in violation of 18 U.S.C. Secs. 876 and 3237(a) and of making annoying, threatening or harassing telephone calls in violation of 47 U.S.C Sec. 223(a)(1)(B). Each of the defendant's convictions stem from communications he directed to the headquarters of the Jewish National Fund in New York City, New York. We affirm.

I

In early 1988, a series of harassing and threatening phone calls and letters were received at the New York headquarters of the Jewish National Fund. The Jewish National Fund (JNF or Fund) is a non-profit organization that raises funds for planting trees, building roads and erecting recreational facilities in the nation of Israel. The Jewish National Fund is also responsible for all open land fire fighting in the nation of Israel.

The Jewish National Fund maintains a toll-free number at its New York, New York headquarters where interested individuals may direct donations and information requests. In the summer of 1987 the Jewish National Fund's toll-free number began to receive harassing and threatening phone calls. In the beginning, these calls were received on an average of once a week, but as of November 1987 these phone calls were received nearly every other day. The phone calls consisted of repetitive anti-Semitic comments and profanity. As a reaction to this series of telephone calls and to permit the Jewish National Fund to record information requests and donations during hours its switchboard was closed, the Jewish National Fund purchased a telephone answering machine in November 1987.

On January 11, 1988, Melanie Baker, the individual who supervises and coordinates the Jewish National Fund's toll-free telephone number and Jaime Negroni, an employee who works in Baker's telemarketing, communications and information department, listened to a telephone answering machine tape on which they heard an irate individual making threatening and profane statements concerning the Jewish National Fund, Israelis, and Jews. Upon hearing the tape, Negroni took the tape to Michael Aschenbrand, the Jewish National Fund's Director of Administrative, Personnel and Security Services. Aschenbrand turned the tape over to the New York Police Department and instructed Negroni to record all incoming messages, rather than just those received after hours and on weekends. During the week of January 11-15, 1988, threatening telephone calls were received on both January 12 and 13, 1988.

On the weekend commencing Friday, January 15, 1988, the Jewish National Fund's toll-free number received two recorded telephone calls from a male individual that were similar to those it had received previously. The calls were quite lengthy and involved statements in which the caller stated "death to" Jews, various individuals, and the Jewish National Fund. The callers also stated "long live," Palestine, Hitler and others. The caller also spewed forth other vicious, degrading and random insults including statements that "Jews are scum," as well as profane statements such as "Fuck all Jews." After having received these calls, the Jewish National Fund stopped recording telephone calls for about a month, but resumed recording in February 1988. Thereupon, the Fund received calls of the same threatening style and format on February 20, March 4 and April 23 and 24, 1988.

The individuals who received the telephone calls at the Jewish National Fund properly perceived the calls as threatening. Michael Aschenbrand noted that he felt the calls were serious threats because he had received bomb threats previously and was aware of the fact that many of the forest fires that were fought in Israel were set through arson. Melanie Baker felt threatened because the caller's statements such as "death to all Jews," the repetitive nature of the calls, the obscenities and the death threats to various officials scared her. Jaime Negroni stated that he considered the telephone calls threatening in light of the facts that he worked for the Jewish National Fund, the extent of anti-Semitism in the world today and the presence of world terrorism and the tensions in the Middle East.

On February 12, 1988, the Fund received a mailing in one of its postage paid "business reply envelopes" that had been sent to the attention of Melanie Baker and was postmarked "Bloomington, Indiana, February 9, 1988." This envelope contained a poster-like paper that stated at its top "Wanted for crimes against humanity and Palestinians for fifty years." Under this heading the paper contained pictures that had been taken from materials that the Jewish National Fund published. The pictures were of Israeli officials including Yitzhak Shamir, Israeli Prime Minister, Shimon Peres, Israeli Foreign Minister, Chaim Herzog, Israeli President, Teddy Kollek, Mayor of Jerusalem and Shlomo Lahat, Mayor of Tel Aviv. Also included on the paper were pictures of Thomas Pickering, former United States Ambassador to Israel as well as of individuals who were the President, Executive Vice-President and Director of Communications for the Jewish National Fund. Swastikas and epithets were drawn over the pictures together with "mustaches" and other disfigurements. Next to the names Yitzhak Shamir and Shimon Peres were, respectively, the words "Execute now!" and "His blood need." Next to the pictures of both Teddy Kollek and Shlomo Lahat were the statements "Must be killed." On the left side of the picture was a map of Israel on which was written "Long live Palestine," and a small disfigured picture of an individual appearing to be Senator Edward Kennedy with an arrow pointing to an accompanying statement "Long live Sarhan Sarhan." (sic). ¹

Around the same time the Jewish National Fund received the envelope containing the "wanted" poster, it received another envelope postmarked "Bloomington, Indiana, February 9, 1988." This envelope was addressed to "Zionist and Outlawed Fund," and was given directly to Jewish National Fund Security Director, Michael Aschenbrand, after it was received in the Fund's mail room. The envelope contained a copy of the Jewish National Fund Mission's Calendar. The material on the calendar was crossed out, and swastikas were inserted. Also written on these calendars were typewritten statements with anti-Semitic content, as well as obscene, vicious and indecent language similar in content to the statements made in the phone calls previously received at the Jewish National Fund headquarters. Some of the statements included were "Death" to the "occupiers of beloved Palestine," to "Congress," to "Ronald Reagan," "Shamir," and "to the Fucking JNF." Also in a manner reminiscent of the phone calls, were statements noting "Long live": "the beloved Iranians," "the beloved PLO," and "his holiness Khomeinee, the only leader of the free world."

Reacting to the receipt of these documents, the Jewish National Fund implemented several proper investigative measures. Initially, the mailings received from Bloomington, Indiana were turned over to the New York Police Department on February 17, 1988. Secondly, since the mailings contained materials taken from Jewish National Fund information packets, Security Chief Michael Aschenbrand instructed Jaime Negroni of the JNF's Communications Department to ascertain if the JNF had mailed materials to individuals in Bloomington, Indiana. Negroni looked through the records and discovered a request for an information packet from a "David Stein" of Bloomington, Indiana. On February 17, 1988, Negroni made two telephone calls to the number that had been listed on the David Stein information request. In the first telephone call, Negroni heard an individual answer the telephone with the words "Financial Services of America." Based upon his previous exposure to the series of threatening telephone calls the Jewish National Fund office had received and upon his training in the armed services in listening for sounds in the context of submarine and sonar devices, Negroni immediately recognized the voice of the individual who answered the telephone as that of the same person who had made the series of threatening telephone calls to the Jewish National Fund. Negroni asked if he could speak to David Stein, whereupon the party with whom he was speaking hung up the telephone. When Negroni called the same number two minutes later, he heard a recording that stated that he was speaking with Financial Services of America.

Telephone records revealed that the Bloomington, Indiana, telephone number that Negroni called on February 17, 1988, was subscribed in the name of Farhad Khorrami. Telephone records received in evidence reflected that there had been frequent calls directed from this number to the Jewish National Fund toll-free telephone number. These included 14 calls on January 8, 1988, one call on January 9, 1988, one call on January 10, 1988, 16 calls from January 11 to January 14, 1988, and five calls on January 15, 1988.

Other evidence was received that also linked Khorrami to the letters sent to the Jewish National Fund that were postmarked in Bloomington, Indiana, on February 9, 1988. Initially, James E. Winand, a United States Secret Service Qualified Documents Examiner, testified that his...