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United States v. Banki

United States District Court for the Southern District of New York

March 23, 2010, Decided; March 23, 2010, Filed

No. 10 Cr. 08 (JFK)

Opinion

OPINION AND ORDER

JOHN F. KEENAN, United States District Judge:

Before the Court is Mahmoud Reza Banki's ("Banki" or "Defendant") motion to present testimony at trial from witnesses located in Iran using live videoconferencing. For the reasons that follow, the motion is denied.

I. Background

In an Indictment filed January 6, 2010, Banki was charged with conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706, including the Iran Trade Embargo, and with operating an unlicensed money transmitting business in violation of 18 U.S.C. § 1960, 2. Specifically, the Government alleges that Banki and unnamed coconspirators "operated an informal value transfer system known as a 'hawala' [in which] funds are transferred by customers to a hawala operator, or 'hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country  [*2] (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar." (Indictment P 10).

Banki claims that he was not a hawaladar, but merely was the recipient of gifts and other remittances from his family to help him purchase an apartment in New York City. As such, Banki proposes to offer the testimony of several relatives for the purpose of proving that the transfers which are the subject of the Indictment were family remittances that, according to him, were lawful under the relevant regulations. Specifically, Banki's father, brother, paternal uncle, maternal uncle, and cousin would testify that they gave him cash gifts and/or arranged for the transfer of money into his United States bank account. 1 Banki also wishes to elicit testimony from his family's broker in Iran who purportedly arranged the monetary transfers. All of the proposed witnesses are Iranian citizens, and all currently reside in Iran. Banki's father and brother are also U.S. citizens, and his paternal uncle is a permanent resident of this country.

Although several of the proposed witnesses  [*3] are legally able to enter the United States, they will not do so due to concern that they could be arrested as Banki's co-conspirators. Banki requested that the Government grant some of his witnesses "safe passage" to New York so that they could testify without fear of arrest, but the Government has stated that it is not in a position to enter into such an agreement. 2 However, at this time, the Government has not sought provisional arrest warrants for any of the proposed witnesses.

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2010 U.S. Dist. LEXIS 27116 *; 2010 WL 1063453

UNITED STATES OF AMERICA -against- MAHMOUD REZA BANKI, Defendant.

Subsequent History: Motion granted by United States v. Banki, 2010 U.S. Dist. LEXIS 35416 (S.D.N.Y., Apr. 6, 2010)

Prior History: United States v. Banki, 2010 U.S. Dist. LEXIS 27612 (S.D.N.Y., Mar. 18, 2010)

CORE TERMS

deposition, witnesses, videoconference, videoconferencing, confrontation, reliability, Sixth Amendment, cross-examination, proceedings, remote