Federal prosecutors in Washington intend to use notes on an iPhone in the criminal prosecution of a man charged in a conspiracy to export millions of dollars worth of computer equipment from the United States to Iran.
There's one catch: the man's defense lawyers claim the notes on the Apple iPhone 3GS are fake.
Massoud Habibion's defense attorneys at McGuireWoods are now seeking access to the iPhone to conduct their own forensic examination before the start of trial in Washington federal district court.
The attorneys, including J. Patrick Rowan, yesterday asked a judge to issue a subpoena to force the person who apparently has the device to give it up. That person, according to Habibion, is his soon-to-be-former wife, Yeganeh Abouhossein. Habibion and Abouhossein have divorce proceedings pending in California state court.
Rowan, a McGuireWoods partner in Washington, said in a court filing (PDF) that Abouhossein stole and tampered with the phone before turning it over last year to government agents for an inspection of its contents. Habibion, according to his lawyers, never gave his wife permission to hand the phone over to law enforcement officers.
Habibion?s lawyers accused Abouhossein of telling her husband she destroyed the phone after taking it from him one day last April, the same month he was arrested in California.
?Because he was falsely led to understand that the iPhone was irreparably destroyed, he did not bother to disconnect it from his work exchange server, unwittingly allowing the opportunity for his emails to download onto the iPhone through a sync with the system,? the defense attorneys said in court papers.
Habibion claims Abouhossein ?tampered with the device, adding numerous falsely inculpatory and other inappropriate notes to various individuals listed in the ?contacts? section, with the intent to ensure Habibion?s conviction in this federal criminal case as well as to wrongfully defeat pending divorce proceedings against him.?
Habibion?s lawyers describe the notes as ?incredibly blatant admissions of criminal wrongdoing and philandering? that bear directly on two proceedings against Habibion in which Abouhossein has a ?demonstrable interest.? The attorneys said the entries are ?entirely bogus.?
The defense lawyers also said they want to determine whether any attorney-client privileged communications were intercepted and disclosed to federal investigators.
Abouhossein was not reached for comment this morning. An attorney for Abouhossein, Kate Corrigan of Newport Beach, Calif., was not immediately reached for comment this afternoon.
Federal agents said Abouhossein voluntarily surrendered the phone to agents. In October, investigators applied for and received a search warrant to review the contents of the iPhone, court records show.
Even though the government "might already have all necessary authority to examine the device, I seek this additional warrant out of an abundance of caution to be certain that an examination of the device will comply with the Fourth Amendment and other applicable laws,? an agent said in an affidavit.
The agents who examined the iPhone said they were unable to determine when the notes in the ?contacts? field were created.
Habibion and two others are charged in Washington with illegally exporting computer-related equipment to Iran through the United Arab Emirates. Habibion was co-owner of the Costa Mesa, Calif., company Online Micro LLC. (Goodwin Procter litigation partner John Moustakas in Washington represents the company.)
Prosecutors contend Habibion and a business partner instructed another person to make fake invoices to hide that a shipment of computers were going to Iran. Habibion did not have a U.S. Treasury Department license, prosecutors said, to conduct business with Iran.
Habibion?s trial is scheduled for April.
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