U.S.A v. Mousavi

• Decision Date: 05 May 2010
• Docket Number: No. 08-50454.,08-50454.
• Citation: 604 F.3d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Seyed Mahmood MOUSAVI, aka, Seyyed Mahmood Mousavi, aka Seyed Mahmoud Mousawi, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

604 F.3d 1084

UNITED STATES of America, Plaintiff-Appellee,v.Seyed Mahmood MOUSAVI, aka, Seyyed Mahmood Mousavi, aka Seyed Mahmoud Mousawi, Defendant-Appellant.

No. 08-50454.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 1, 2010.

Filed May 5, 2010.

COPYRIGHT MATERIAL OMITTED

George C. Harris, Morrison & Foerster LLP and Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale, attorneys for the appellant.

Susan J. De Witt, Assistant United States Attorney, attorney for the appellee.

Appeal from the United States District Court for the Central District of California, Percy Anderson, District Judge, Presiding. D.C. No. 2:07-CR-00513-PA-1.

Before: RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges, and LLOYD D. GEORGE,^* District Judge.

IKUTA, Circuit Judge.

Seyed Mahmood Mousavi appeals from his federal criminal convictions for, among other things, willfully providing services to Iran in violation of the International Economic Emergency Powers Act (IEEPA), 50 U.S.C. § 1705, and the Iranian Transaction Regulations (ITR), 31 C.F.R. § 560.206, commonly referred to as the United States' trade embargo against Iran. Mousavi argues that the evidence presented at trial was insufficient to allow any rational juror to conclude beyond a reasonable doubt that he was guilty of willfully violating the ITR. We conclude, viewing the evidence presented at trial in the light most favorable to the government, that evidence sufficiently supports Mousavi's conviction under 50 U.S.C. § 1705 and 31 C.F.R. § 560.206. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).¹

I

Mousavi immigrated to the United States from Iran in the late 1980s, becoming a legal permanent resident in 1991 and a naturalized citizen in 1999. At times relevant to this appeal, Mousavi and his wife owned Mousavi Digital Services, doing business as Global Digital Services, a partnership that installed television satellite systems. At the same time, Mousavi was president of the Hejrat Educational Center, a non-profit organization that provided services to the Islamic community, and also ran a business that organized travel packages to Mecca for the Hajj pilgrimage by obtaining necessary visas and arranging flights, hotels, and meals.

In January 2006, agents of the Internal Revenue Service (IRS) discovered evidence of concealed income on Mousavi's 2002 personal and business tax returns. In the resulting investigation, agents found evidence that some of Mousavi's undisclosed income was from a Kuwaiti company, Al Mal Kuwaiti Company (Al Mal), which had entered into an agreement with Mousavi to provide consulting services related to business ventures in Iran. Based on this evidence, a grand jury returned an indictment against Mousavi in March 2008, charging him with, among other things, conducting unlawful dealings with Iran in violation of IEEPA and the ITR. 50 U.S.C. § 1705; 31 C.F.R. § 560.206. A jury trial commenced in district court in April 2008.

At trial, the government presented evidence showing that Mousavi contracted with Al Mal to provide consulting services directed at establishing business ventures in Iran. To that end, the government produced a document entitled “Agreement,” signed by Mousavi and Mohammad Al Sager, Chairman and Managing Director of Al Mal, dated June 11, 2002, and two attached documents: one entitled “Incentive Plan,” also dated June 11, 2002; and the other a letter from Al Mal's Assistant General Manager to Akbar Torkan, Chairman and Managing Director of Petroparts, Ltd. in Tehran, Iran, dated August 25, 2002.

The Agreement provides, in relevant part: ²

The two parties agreed on the following:

1. Al Mal will hire Mr. Mousavi (consultant) to help Al Mal in its endeavor to do the following:

a) To bid for GSM license jointly with Iran Electronic Development Company b) To help establishing a bank and leasing Co. with Industrial Development & Renovation Organization of Iran (IDRO).

2. The consultants responsibilities will be to follow up with the authorities and concern parties all required steps to help establish and accomplish our planed co-joint projects.

...

4. Al Mal will hire the consultant for a period of six months for a remuneration of US$ 50,000 (U.S. $ fifty thousand only) to be paid 50% in advance and 15% after reaching a Memorandum of Understanding (MOU) with each party with the last project getting an extra 5% (total 100%).

5. Al Mal will appoint Mr. Mousavi in one of company established jointly by the Iranian Partners.

...

7. An incentive plan will be drafted and agreed upon separately in case that Mr. Mousavi accomplished any of the above joint companies.

The attached Incentive Plan provides for additional commissions to be paid in the event of success in several projects. For example, Section B(1) of the Incentive Plan provides: “Gravell Project: Al Mal will pay Mr. Mousavi after successfully completing the purchase of ship and establishing the company jointly with the Iranian partner US$ 50,000.” Section 3 states: “Also, Mr. Mousavi will be exclusive to Al Mal on Iran and will not approach other parties for these projects.”

The attached letter from Al Mal to Petroparts references a meeting in Tehran regarding Al Mal's interest in investing in the Iranian market, and notes Al Mal's particular interest in “exploring further the feasibility of a project for commissioning a gas pipeline from the Republic of Iran (say, from Kharg Island) to Kuwait.” In the letter, Al Mal nominates “Mr. Mahmoud Al Mousawi as our liaison for this project.”

In addition to the Agreement, Incentive Plan, and letter, the government introduced evidence showing a course of dealings between Mousavi and Al Mal. The documents introduced at trial included Mousavi's Iranian and United States passports with stamps indicating travel to Kuwait and Iran in late April and early June 2002, as well as a boarding pass from Iran Air dated April 22, 2002, found in the same file as the Agreement. The government introduced bank statements showing wire transfers from Al Mal into Mousavi's personal account during the same time period. The statements showed transfers of $6,170 on April 17, $8,870 on June 6, and $30,000 on June 13, 2002, for a total of $45,040. Mousavi's 2002 personal tax return, also introduced by the government, did not report any income from Al Mal. Instead, it indicated a total income of only $11,152, all from Mousavi Digital Services.

Finally, the government presented evidence to demonstrate that Mousavi was a sophisticated businessman, whose ties to Iran and organization of travel in the area would have made him familiar with the United States' restrictions on trade with that country. This evidence included Mousavi's naturalization application and resume, indicating that Mousavi grew up in Iran and was engaged in business there during the period following the embargo. Mousavi had high-level contacts in Iran and continued to travel to Iran regularly after moving to the United States. In addition, evidence indicated that Mousavi ran a business that provided travel packages to persons traveling to Mecca for the Hajj pilgrimage. In making travel arrangements for clients seeking to visit Iran as part of their pilgrimage, Mousavi sought visas from the Pakistani embassy; using that embassy is required, the government's witness testified, because there is no Iranian embassy in the United States as a result of the trade embargo and diplomatic sanctions. Mousavi likewise was forced to coordinate his own and others' travel to Iran through third-party countries (e.g. Kuwait) because there are no direct flights to Iran from the United States as a result of the embargo.

Also at trial, an employee of the Treasury Department's Office of Foreign Assets Control (OFAC), the agency charged with administering the ITR, testified that, in his opinion, dealings such as those reflected in the Agreement would be a violation of the ITR absent a license from OFAC. The OFAC employee testified that Mousavi never applied for or received a license to conduct such business with Iran.

Following the close of the government's case, Mousavi moved under Federal Rule of Criminal Procedure 29 for a directed verdict, arguing that the evidence was insufficient to support the charges against him. Specifically, the defense argued that the government failed to provide sufficient evidence that Mousavi violated the ITR, or (if he did so) failed to prove that he acted willfully. The court reserved ruling on the motion until after the verdict. The defense presented no evidence.

The jury returned a guilty verdict on all counts. Defense counsel renewed his motion under Rule 29, which the court denied as to Mousavi's convictions under IEEPA and the ITR. Mousavi filed a timely notice of appeal, contending that evidence presented at trial was constitutionally insufficient to support his conviction.

II

We begin with a review of the relevant law. IEEPA authorizes the President to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States....” 50 U.S.C. § 1701(a). In relevant part, it authorizes the President to impose trade embargoes against foreign countries with which the United States has engaged in hostilities. See id. § 1707(a). A violation of an embargo imposed under IEEPA is a criminal offense. Specifically, § 1705(a) provides that it is “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 this chapter.” Id. § 1705(a). One who commits or attempts to commit such a violation “willfully” can be fined or imprisoned. Id. § 1705(c).³

In response to the seizure of the American Embassy in Tehran in 1979, President Carter issued a series of Executive Orders authorizing OFAC to promulgate regulations blocking...