United States District Court, S.D. New York
MEMORANDUM DECISION & ORDER
KATHERINE B. FORREST, District Judge
the Court is an application by
Claimants/defendants 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
affairs. (ECF NO. 1769.) 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 then-existing state of mind
exception of Rule 803(3).
reasons set forth below, the Court DENIES Claimants'
application to preclude the recording.
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.
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.
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 co-conspirator “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.
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 be furthering the
aims of the conspiracy when he made the statements at issue.
Thus, the co-conspirator exception applies.
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.
 For ease of reference, the Court
refers to Claimants/defendants as Claimants throughout this
Memorandum Decision & Order.
 Unless otherwise noted, all ECF
citations are to case No. ...