Opinion
01 Cr. 0417 (TPG)
May 31, 2002
OPINION
Defendant Mazyar Gavidel moves to dismiss counts eight and nine of the indictment against him and for discovery. The Government opposes the motion. The motion is denied.
Count eight charges defendant with violation of 18 U.S.C. § 1960 for knowingly operating a money-transmitting business that affected interstate and foreign commerce and was intentionally operated without an appropriate money-transmitting New York State license, as required by New York Banking Law § 650(2)(b)(1). Defendant argues that § 1960 violates the Equal Protection clause of the Fourteenth Amendment because the statute results in disparate treatment dependent upon a defendant's state of residence. However, a federal statute such as this, incorporating state law, is constitutional despite non-uniformity of the state laws. See United States v. Sharpnack, 355 U.S. 286 (1958). Accordingly, the Court denies defendant's motion to dismiss count eight.
Count nine charges defendant with knowingly violating the embargo against Iran contained in Executive Order 12959 and 31 C.F.R. § 560 by transferring funds from the United States to accounts maintained at banks in Iran via Dubai, U.A.E. Defendant argues that the Executive Order only applies to items for which an "export license" is required and because there is no claim that the transmittal of money requires an export license the count recites insufficient facts to support the charge. However, the ban includes all "goods, technology, or services" without reference to any requirement of an export license. Accordingly, the Court denies defendant's motion to dismiss count nine.
In addition to his motion to dismiss defendant seeks certain discovery material. of the requested discovery the Government states that, except for the three categories described hereafter, timely production of the same was made to defendant's former attorney, who represented to the Government that shortly after January 1, 2002 he gave all those materials either to defendant or to the paralegal of defendant's current attorney. The first of the above categories relates to copies of notes taken during any proffer sessions with defendant. The Government states it will search for and produce such notes, if any exist. The second category relates to a copy of any harddrive from defendant's seized computers. The Government states that the actual harddrive was destroyed on September 11, 2001, but notes that printouts of the materials contained thereon were turned over to defendant's former attorney. The third category relates to copies of all Government exhibits to be presented at the time of trial and Brady orGiglio material in the form of any FBI Form 302's. The Government is not obliged to produce its exhibits in advance of trial and the Government states that it is unaware of any Brady material, but will provide timely disclosure if such material comes to light, and will provide Giglio material, if any, at the time it provides prior statements of witnesses pursuant to the Jencks Act, 18 U.S.C. § 3500. Accordingly, the Court denies defendant's requests for discovery.