Kenneth Rijock

Kenneth Rijock

Monday, October 17, 2016

TRIAL JUDGE DENIES REZA ZARRAB'S MOTION TO DISMISS

                             
Reza Zarrab
US District Judge Richard Berman, who recently denied the defense motion for recusal, today denied the motion to dismiss the indictment, filed by Reza Zarrab's team of attorneys. In a Decision and Order, which contains extensive citations to authorities, and reads more like a law review article, the Court dealt with all the issues cited by defense counsel, then argued case law, and dispensed with each and every one in turn, in a 36-page order.

The decision, which specifically stated that it was not ruling upon the merits of the case of either party, the Court upheld the legal sufficiency of Count I, the Conspiracy to Defraud the United States, Count II,  the Conspiracy to violate the IEEPA and ITSR, Count III, Conspiracy to Commit Bank Fraud, and Count IV, Conspiracy to Commit Money Laundering. The opinion was well reasoned, and detailed the undisputed facts, as well as a brief statement of the case. I found it to be very persuasive.

An Order denying a motion to dismiss is interlocutory, and generally not appealable under the Federal Rules, unless the defense team can show the case falls within a very small class of exceptions, but there are a number of genuine issues of law, which could be the basis of an interesting appeal, if a guilty verdict occurs, especially extraterritoriality. On that issue, "the Court finds that the Indictment alleges a domestic nexus, between Zarrab and his co-conspirators' conduct and the United States, i.e. the exportation of services from the United States." Decision at 17. 

The Decision was not unexpected, as most Federal indictments survive a motion to dismiss, due to the fact that all well-pleaded allegations must be taken as true, when considering the motion, but there are bona fide issues raised by the defense. Next, the motion to suppress evidence seized, when the defendant first arrived at Customs in Miami, is still pending.



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