U.S. v. Townsend
| Decision Date | 01 March 1990 |
| Docket Number | Nos. 89-30228,89-30229 and 89-30231,s. 89-30228 |
| Citation | 897 F.2d 989 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. John TOWNSEND, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Shiv MOHAN, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. David WHYTE, Defendant/Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John W. Lundin, Seattle, Wash., and Phillip B. Abramowitz, Robshaw, Abramowitz & Tobia, Buffalo, N.Y., for defendant-appellant Mohan.
Katrina C. Pflaumer, Seattle, Wash., for defendant-appellant Townsend.
Richard C. Tallman, and C. James Frush, Schweppe, Krug & Tausend, Seattle, Wash., for defendant-appellant Whyte.
Portia R. Moore, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before FARRIS, REINHARDT, and NOONAN, Circuit Judges.
Shiv Mohan, an Indian national normally residing in New Delhi, India, John Townsend, a British national normally residing in Australia, and David Whyte, a Canadian national normally residing in Toronto, Canada, all now held in custody in the Western District of Washington, appeal from the denial of bail. We affirm the district court.
At the two bail hearings that have been held in this case, the government presented evidence tending to establish the following: In April 1987 the Defense Department received information from a confidential source that a distribution system was being set up to export high technology computers to the Soviet Union through India in violation of United States export law. Those involved were identified as Sidhartha Bose and his company, Perfect Technologies, Ltd., an English company, and Shiv Mohan and his company, Kohinoor-Impex Private, Ltd. (KIP), an Indian company located in New Delhi. Perfect Technologies was to provide financing and KIP was to get the computers to the Soviet Union.
In January 1989, and continuing thereafter, Perfect Technologies, Ltd., KIP and Glaskovmos, an agency in the Soviet Union, were involved in a joint venture, whose nominal purpose was to import personal computers into the Soviet Union. There was evidence that the computers purchased by the joint venture were not confined to personal computers.
In February 1989 the Department of Commerce received word of a suspicious export of computers to India. Special Agent Jerry Hobbs of the Department of Commerce was assigned to investigate the source of the shipment. As a result of this investigation Hobbs executed a search warrant on March 29, 1989 on C-Tac Computers, in Kirkland, Washington, a company headed by Robert Casperson. Hobbs discovered a number of documents relating to the export of computers in apparent violation of United States export law. Casperson began to cooperate with the government, agreeing to record telephone calls.
As a further result of his investigation, Hobbs came to the following conclusions:
In the fall of 1988, five Microvax II computers with an approximate value of $375,000 had been purchased by John Townsend and exported from the United States to Australia. These computers were then transshipped to Singapore for the benefit of a company owned by Mohan. When it proved impossible to get the computers from Singapore to India without a United States license, they were returned to the United States and then shipped by Townsend and Casperson to David Whyte of Computech, a company located in Toronto, Canada. Whyte then reshipped the equipment to Singapore for Mohan's benefit.
On March 3, 1989 Townsend purchased the super minicomputer known as the Dec Vax 8700 with an approximate value of $490,000. Townsend and Casperson disassembled the computer into parts so that it would not appear to be a main frame computer and shipped it to an apartment in Singapore. A Dec Vax 8700, when assembled, weighs 2,000 pounds and is three feet deep, six feet tall, and six to eight feet long; it is highly unlikely that it can be used in an apartment; according to Casperson, it was disassembled in order to disguise what it was. The order was for the benefit of Mohan or one of his companies.
On October 5, 1988 Mohan ordered 25 Techtronix work stations, a sophisticated type of computer terminal. The work stations were to be sent to Whyte in Toronto and then forwarded by him to Mohan in India. Townsend ordered an additional 25 of these stations to be sent to Mohan in the same way. The president of Computech was aware of the Techtronix transactions. To deceive Techtronix into thinking that the work stations would not leave the United States, Whyte told the manufacturer that the order that Computech had placed was to meet an order of a United States military agency.
In July 1989 Casperson suggested to Mohan, Whyte and Townsend that they meet in Buffalo to discuss a cover story to explain the $1.6 million C-Tac had received from Mohan or from Perfect Technologies for the purchase of computers in the period December 1988 to March 1989. On July 17, 1989 a complaint charging the defendants with violation of 50 U.S.C. Appendix Sec. 2410(a) and Sec. 2410(b)(1) was filed with a United States magistrate in Buffalo. On July 21, 1989 the defendants met in Buffalo and were arrested.
Execution of search warrants on the defendants' hotel rooms led to further documentation of the relation between Perfect Technologies and Mohan's Indian company. Whyte told the arresting officers that he expected to get a commission of $65,000 on the Techtronix transaction, although his normal compensation was $60,000 a year. Mohan told the arresting officers that one of the customers for the Techtronix work stations was a New Delhi company, Modai Rubber. When the United States Embassy in New Delhi questioned senior officials at Modai Rubber, they stated they did not know of any Techtronix work stations ordered from Mohan.
The computers and the computing equipment were all listed by the United States as "Military Critical Technology." Export of them without a license would have been in violation of United States export law and transshipment from one country to another country without a United States license would have been in violation of United States export law.
Following the arrests, a hearing was held before a magistrate in Buffalo. Pretrial Services reported that Mohan stated that he was the owner of Kamalen Engineering Co. in New Delhi, that he earned $60,000 a year from that business and that his net worth was $500,000. The Pretrial Services report stated that Whyte was a life-long resident of Toronto; that he had been married three years and had an eight-month old daughter; that he was "currently self-employed," working for Computech on a commission basis; and that he had a house he owned jointly with his wife in which they had equity of U.S. $280,000. No information in the record indicates what information was provided as to Townsend. Drawing on the second bail hearing it may be stated that he was a resident of Australia, divorced from his wife and paying alimony and living with an Australian woman. With the latter he had equity in a house worth U.S. $75,000. He was self-employed. Eighty percent of his work in the past year had been for Mohan.
The magistrate reached the conclusion that there was probable cause for the detention of all three defendants. He set bail for Mohan at $1 million, bail for Townsend at $500,000 and bail for Whyte at $200,000.
The magistrate's bail order was stayed and a de novo hearing was held before the district court for the Western District of Washington on August 1, 1989. At this hearing various documents were presented on behalf of Mohan. The Bank of Maharashtra, an enterprise of the Indian Government, certified that KIP had banked with it for seven years and that Mohan had been known to the Bank for 15 years; that he was a dynamic businessman engaged in local trade in oil engines, generators, videotapes, and computers; and that he held a respectable place in society. An Indian public accountant certified that as of July 4, 1989 he had made an examination of the records of KIP from April 1, 1986 to March 31, 1989 and that the records showed the export by the company in its own name of personal computers, terminals and other items of computer equipment. The same accountant on August 2, 1989 signed a certificate providing "key financial data" on KIP for the past six years. Another public accountant certified on August 2, 1989 that KIP had maintained proper records. D.S. Sastri, counsel to the Indian Embassy in Washington, testified at the hearing that he "did not know this man [Mohan] from Adam" but that on the basis of these certificates Mohan appeared to be a reputable Indian businessman.
Another live witness for Mohan was Bernard Lang. Lang identified himself as a person living at Lake Geneva, Switzerland, who owned property in both Switzerland and Belgium and was engaged in managing his family's real estate and other industrial developments. He stated that he had known Mohan for 20 years and had become a friend of his and his family; the Mohan children called him "uncle." When bail was set at $1 million, Mohan's son, Munish, a student at Columbia University, telephoned him and asked him for his help. In response Lang had contacted bankers in Switzerland, borrowed $1 million, and asked them to wire it to Mohan's lawyer in the United States. Lang had then come to the United States to testify in Mohan's behalf. Lang said that he was paying interest on the loan, but did not state the amount of interest. He also stated that he did not know the total assets of Mohan or whether Mohan could repay him if the bail were forfeited, but he was sure that Mohan would not let him down by failing to appear at the trial.
In favor of the defendants were these facts:
Mohan had been identified by business associates in New Delhi as a...
To continue reading
Request your trial
-
Requested Extradition of Kirby, Matter of, s. 96-10068
...is permissible, the factual findings of the court are considered under a deferential, clearly erroneous standard. United States v. Townsend, 897 F.2d 989, 994 (9th Cir.1990). Even if one could make a silk purse out of a sow's ear, one could still not transform a sow into a cat. The two anim......
-
United States v. Martin
...a district court to consider possible punishment to gauge a defendant's motivation to flee if released. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990) ("[T]he defendants are charged with multiple counts, and it is reasonable, from their perspective, to look at the potentia......
-
United States v. Esquivel, CR 12-2375 JB
...in his favor, and, thus, in only "rare" cases should pretrial release be denied. Detention Appeal at 7-8 (citing United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). U. Esquivel asserts that, "a defendant may be detained pending trial only if a judicial officer finds that 'no cond......
-
Ramos v. Sessions, Case No. 18–cv–00413–JST
...order may be upheld." United States v. Fidler, 419 F.3d 1026, 1029 (9th Cir. 2005) (citations omitted); see also United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990) ("[T]he district court's factual findings in a bail hearing are to be reviewed under a deferential, clearly erroneous......
-
Indictment and PreTrial Motions
...59. See 18 U.S.C. § 3142(b); ABA C RIMINAL A NTITRUST L ITIGATION H ANDBOOK , supra note 15, at 47. 60. See United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990); United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). 61. See Townsend , 897 F.2d at 994-96. 62. 18 U.S.C. § 31......
-
Discrimination, coercion, and the Bail Reform Act of 1984: the loss of the core constitutional protections of the excessive bail clause.
...F.2d 758, 762 (7th Cir. 1985). (133.) See United States v. Cantu, 935 F.2d 950, 952 (8th Cir. 1991). (134.) See United States v. Townsend, 897 F.2d 989, 994 (9th Cir. (135.) See United States v. Montalvo-Murillo, 876 F.2d 826, 830 (10th Cir. 1989), rev'd on other grounds, 495 U.S. 711, 722 ......