In re: 650 Fifth Avenue and Related Properties

Filing 1798

MEMORANDUM DECISION AND ORDER re: (1769 in 1:08-cv-10934-KBF, LETTER addressed to Judge Katherine B. Forrest from John Gleeson of Debevoise & Plimpton LLP dated 5/29/17 re: Seeking to Preclude Admission of Transcript. Document filed by 650 Fifth Aven ue Company, Alavi Foundation.) The Court DENIES Claimants' application to preclude the recording, and as further set forth herein. (Signed by Judge Katherine B. Forrest on 6/5/2017) Filed In Associated Cases: 1:08-cv-10934-KBF et al. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE: 650 FIFTH AVENUE AND
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RELATED PROPERTIES
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KIRSCHENBAUM, et al.,
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Plaintiffs,
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-v:
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650 FIFTH AVENUE and RELATED
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PROPERTIES,
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 5, 2017

08 Civ. 10934 (KBF)
and all member and
related cases
MEMORANDUM
DECISION & ORDER
09-cv-165 (KBF)
09-cv-166 (KBF)
09-cv-553 (KBF)
09-cv-564 (KBF)
10-cv-1627 (KBF)
11-cv-3761 (KBF)
12-mc-19 (KBF)
12-mc-20 (KBF)
12-mc-21 (KBF)
12-mc-22 (KBF)
13-mc-71 (KBF)
13-cv-1825 (KBF)
13-cv-1848 (KBF)
MEMORANDUM
DECISION & ORDER

KATHERINE B. FORREST, District Judge:
Before the Court is an application by Claimants/defendants1 seeking to
preclude admission of an audio recording made on December 5, 2008, by the
Government’s Confidential Human Source (“CHS”) of a conversation with Hamid
Firooznia, one of Alavi’s accountants and an individual with knowledge of Alavi’s

For ease of reference, the Court refers to Claimants/defendants as Claimants throughout this
Memorandum Decision & Order.
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affairs. (ECF NO. 1769.)2 According to Claimants, Firooznia had ceased acting as
Alavi’s accountant more than a year prior to the recording and therefore the
recording does not constitute a “party admission” under Federal Rule of Evidence
802 and does not fall within any other hearsay exceptions. (Id. at 1.) The
Government opposes the application. (ECF No. 1774.) The Government notes that
Firooznia invoked his Fifth Amendment privilege against self-incrimination during
his deposition. According to the Government, the recording contains numerous
statements that are admissible as non-hearsay or which fall under various hearsay
exceptions including the co-conspirator exception of Rule 801(d)(2)(E) and the thenexisting state of mind exception of Rule 803(3).
For the reasons set forth below, the Court DENIES Claimants’ application to
preclude the recording.
The Court has reviewed the transcript of the recording. (ECF No. 1769-1.)
During the conversation, the CHS and Firooznia discuss the Alavi and Assa
partnership as well as issues regarding Bank Melli’s continued interest in the
partnership. This supports an inference that Firooznia—who obtained his
knowledge while working as Alavi’s accountant in a period post-2000—was aware,
inter alia, of Bank Melli’s ownership of Assa. This, in turn, is highly relevant to a
contested fact in this trial. There are other aspects of the recording that may
support more direct control of the Alavi Foundation’s affairs by Iran. This is also a
highly contested issue in this trial.

2

Unless otherwise noted, all ECF citations are to case No. 08-cv-10934.

2

Based on the documentary evidence in the materials before the Court, there
is ample evidence to support the existence of a conspiracy to provide services to Iran
in violation of the IEEPA and ITRs. Based on his personal participation in certain
events relevant to this overall course of conduct, Firooznia was among the
conspirators. He performed work for Claimants that directly assisted them in their
efforts to, inter alia, hide Bank Melli’s ownership of Assa.
Finding that the conspiracy existed—and that Firooznia played a part in it—
does not resolve whether the statements made on the recording are those of a coconspirator “during and in furtherance” of the conspiracy. The Court finds,
however, by a preponderance of the evidence that this element is met as well. The
fact that Firooznia was apparently no longer retained as Alavi’s accountant does not
necessarily mean that he was no longer a co-conspirator. In fact, the conversation
reflected on the recording indicates that the CHS and Firooznia were discussing
actions which Firooznia could take—at the time of the recording—to further assist
in the overall concealment of Iran’s role in the partnership between Assa and Alavi.
For instance, during a portion of the conversation, Firooznia asks the CHS to
help provide a copy of a report he had written and previously given to Iranian
officials to Mazaheri, a high level Iranian official (and someone with high level
contacts within the Government of Iran). The CHS and Firooznia state a general
resolve to bring issues relating to Bank Melli’s interest to the attention of the
Government of Iran. The Court finds that these statements were made by an
individual who still considered himself to have an interest in the conspiracy and to

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be furthering the aims of the conspiracy when he made the statements at issue.
Thus, the co-conspirator exception applies.
But, in addition, the Court finds that numerous other statements in the
recording are either not hearsay or are separately admissible under the state of
mind exception of Rule 803(3). That Firooznia believed certain things—based upon
his position with Alavi—is relevant and reflective of his then-existing state of mind.
SO ORDERED.
Dated:

New York, New York
June 5, 2017

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KATHERINE B. FORREST
United States District Judge

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