UNITED STATES OF AMERICA, PLAINTIFF V. ARIF DURRANI, DEFENDANT. MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THE DEFENDANTS MOTION TO VACATE, SET ASIDE OR CORRECT THE SENTENCE UNDER 28 U.S.C.2255

• Document Type: FOIA
• Keywords: IRAN CONTRA
• Keywords: SCANDAL
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001474387
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 64
• Document Creation Date: June 22, 2015
• Document Release Date: January 10, 2008
• Case Number: F-2000-02383
• Publication Date: February 4, 1987

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
Plaintiff, ) B 9 0 am
V. ) CASE NO.
ARIF DURRANI,
Defendant.
MEMORANDUM OF FACTS AND LAW IN SUPPORT OF
THE DEFENDANTS MOTION TO VACATE, SET ASIDE OR CORRECT
THE SENTENCE UNDER 28 U.S.C.S2255
ARIF DURRANI
P.O. Box 5000
Sheridan, Oregon 97378
#09027-014
Pro se
APPROVED FOR RELEASE
DATE: NOV 2007
( i
 TABLE OF CONTENTS
Page
Cover ......................
Table of Contents ..............
Table of Authorities........... ................................
iii
Ground
One .......................................................
3
Ground
Two .......................................................
16
Ground
Ground
Three .......................... I...........................
Four .........
19
Points and Authorities .
Summary and Conclusion .... ...... ................ 30
Appendix of Exhibits
Exhibit A (Consisting of statement of facts on appeal).
Exhibit B (Pre-trial affidavit by Mr. Durrani).
Exhibit C (Stipulation from Oliver North trial).
Exhibit D (Report of the Congress on Iran-Contra Affair pages 327-72).
Exhibit E (Forways Industries prosecution).
Exhibit F (Letter to court from Comexas, T. Van de Meersche).
Exhibit G (Statement by T. Van de Meersche concerning AUSA visit).
Exhibit H (Government exhibits from Badir trial linking CIA-Pires
Oliver North in arms dealings).
Exhibit I (Customs documents showing Merex and Interarms shipments).
Exhibit J (State Department letter confirmin helicopter parts not
subject to export control by them.
Exhibit K (Federal'Bureau of Investigation deposition pages).
Exhibit 1 (Page from trial transcript re: "Casey" memorandum).
Exhibit M (Letter from CIA confirming the existance of Casey Memorandum).
Exhibit N (Army point papers for Hawk Missile transfers to Iran).
 TABLE OF AUTHORITIES
Page
Brady v. Mar land
373 U.S. 83 (1967j ............................................... 21
Giglio v. United States,
405 U.S. 150 (1972) 23
Mesarosh v. United States,
352 U.S. 1 (1956) ................................................ 22
Miller v. Pate,
386 U.S. 1 (1967) .................................. 25
Raley v. Ohio,
360 U.S. 432 (1959) .............................................. 27
Perkins v. Lafevre,
691 F.2d 616 2nd. Cir. 1982) .................................... 26
St. German of Alaska E. Orthodox Cath. Church v. United States,
840 F. 2d 108 (2nd. Cir. 1988) ................................... 28
United States v. Agurs,
427 U.S. 97 1 ............................................... 23
United States v. Bagley,
473 U.S. 667 (1985) ............................... 22
United States v. Gordon,
817 F.2d 1538 11th. Cir), cert. dismissed, 109 S.Ct. (1988)..... 29
United States v. Pennsylvania Industrial Chemical Corp.,
411 U.S. 655 (1973) .............................................. 27
United States v. Valentine,
820 F.2d 565 (2nd. Cir. 1987) ...........25
STATUTES CITED
22 U.S.C.2778 et seq ............... passim
CONSTITUTIONAL AMENDMENTS
Due Process Clause of the Fifth Amendment ........................ passim
Right to Counsel Clause of the Sixth Amendment ................... 21
(iii)
 PRELIMINARY STATEMENT OF FACTS
The instant defendant adopts by reference of incorporation
all factual avertments in the brief filed on appeal, and attached
hereto as EXHIBIT A, except those portions of that record which
are specifically contradicted by newly discovered evidence and facts,
as set forth under Grounds, infra.
SYNOPISIS OF THE CASE
Arif Durrani was arrested and charged in a single count
indictment for shipment of Hawk Missile parts without an export
licence under 22 U.S.C.?2778(b)(2). A later superceeding-indictment
charging him with two (2) additional violation under 22 U.S.C.?2778
(b)(2) and ?2778(b)(1), all three (3) counts of the second
indictment arising out of the same incident, and the evidence for
these charges was available to the government at the time of the
first indictment. Twenty-six days after the initial appearance before
the court on,the second indictment, the trial of Arif Durrani began
in the district court.
Mr. Durrani testified at trial and based his entire
defense upon his belief that he participated in the highly irregular
covert operation coordinated by the staff of the National Security
Counsel, who were using private citizens in the transfer of Hawk
Missiles and spare parts to Iran.
In pretrial motions, the court refused to enforce the
subpoenas sought by Mr. Durrani's counsel which related to documents
held by the government and which demonstrated the government's
involvement in the procurement and export of arms and parts for the
 Hawk Missile System. 1 /
The government's rebuttal case, in addition to that
summarized in the Court of Appeals decision, United States v.
Durrani, 835 F.2d 410 (2nd. Cir. 1987), was essentially an effort
by the government to impeach Mr. Durrani's credibility, which
was premised upon Mr. Durrani's inability to;produce evidence to
corroborate statements made in a pre-trial affidavit made in support
of a motion to dismiss, EXHIBIT B. The government successfully
thwarted Mr. Durrani's defense counsels efforts to introduce vital
evidence which provided strong corroboration that Mr. Durrani was
approached to supply the Hawk parts requested by Iran, but
unavailable to those responsible for the government's aeration.
In rebuttal to Mr. Durrani's assertation that he was
working on behalf of the United States, The AUSA Fitzsimmons presented
several government employees to testify in rebuttal, as summarized
by the Court of Appeals:
THE GOVERNMENTS REBUTTAL CASE
"Two government witnesses challenged Durrani's
account, disputing that North visited London at
the time of their alleged meeting. Michael Sneedon
of the NSC testified that NSC's travel records failed
to indicate that North was traveling at all in
September of 1986. Similarly, Adrian Owen of Her
Majesty's Customs and Excise confirmed that his
search of London hotel records disclosed no trace
of North either under his own name or any known alias.
A third government witness challenged Durrani's
entire story. Charles Moyer of the CIA testified
that all parts procurements for North were handled
by the CIA, not by private parties."
Id. United States v. Durrani, 835 F.2d 417.
1 / Mr. Durrani was arrested-prior to the full disclosure of the Iran arms sales
by the United States government, Oliver North and John Poindexter, and as
such, at the time of the trial, much of the evidence developed out of the
numerous trial, hearings and Senate investigations was unavailable for Mr.
Durrani's defense preparations.
2.
 Evidence discovered after the trial, and too late for a
motion for new trial under Federal Rule of Criminal Procedure 33,
both proves that the testimony of several of the government's
witnesses was false; that the testimony of Mr. Durrani and the facts
in his pre-trial affidavit were true; and, that the prosecutor in
the case knew, or had a reasonable knowledge, that the evidence
submitted in rebuttal was false, based upon her own suppressions.
The evidence detailing the government's complicity
in the suppression of evidence and the presentation of the purjured
testimony, was all withheld from Mr. Durrani's attorney at trial,
this suppression severely undermines the confidence of the jury's
verdict in the case.
THE DEFENDANT WAS DENIED DUE PROCESS OF
LAW BY THE GOVERNMENTS SUPPRESSION OF EXCULPATORY EVIDENCE
SUPPORTING MR. DURRANI'S DEFENSE AND TESTIMONY
a). As set forth above and summarized by the Court of
Appeals, Michael Sneedon, a government witness employeed by the
National Security Counsel (NSC) testifed that the records of the
alleged meeting between Mr. Durrani and Oliver North in September
of 1986, was not supported or reflected by the NSC's travel
ledgers. This testimony was additionally supported by another
government witness, Adrian Owen from the British Government. However,
the meeting in London during the period of time claimed by Mr.
Durrani, was admitted by the government in a semi-secret stipulation
submitted by government counsel in the Oliver North trial. In the
North trial, the government withheld the actual documents related
to the September 1986 trip to London in the "interest of national
 security." 2 / Clearly, the fact of this trip was in the possession
of the government at the time of the Durrani trial, and diametricily
opposite to the government's position and evidence in the Durrani
trial. This stipulation, attached hereto as EXHIBIT C, together
with the documents withheld for national security reasons, fully
support Mr. Durrani's claims of the secret London meeting in
September, a meeting so secret, that evidently the NSC did not have
or wish to disclose any records in association with it. The
government stipulation at page 40, paragraph 101 states clearly:
In mid-September 1986, LtCol [sic] North notified
Admiral Poindexter that Noriega wanted to
meet with him in London within a few days.
North had discussed the matter with Assistant
Secretary of State Abrams, who had raised it
with Secretary of State Schultz. Schultz
thought that the meeting should proceed.
Admiral Poindexter approved.
The stipulation further goes on at page 41 paragraph
106:
In late September 1986, LtCol [sic] North reported
to Admiral Poindexter on his London meeting
with Noriega. Noriega would try and take
immediate actions against the Sandinistas
and offered a list of priorities including
an oil refinery, an airport, and the Puerto
Sandino off-load facility.
While failing to name Mr. Durrani and the other persons present
in London for the September 1986 meetings, the travel of Oliver
North and his presence at these meetings was, so secret, the only possible
way for Mr. Durrani to have had knowledge of them, prior to, or
during trial, was for him to have been physically present.
2 / In addition to the stipulation above, Oliver North has admitted to his presence
in London during this period of time and the plans discussed with Manuel
Noriega, now deposed dictator of Pannama, to assassinate Daniel Ortega, the
President of Nicaragua.
 The information and documentation of the above meeting
were all suppressed from Mr. Durrani, his counsel and the jury, and
accordingly. Mr. Durrani was denied access to documentry proof of
his defense, and was unable to corroborate his statements, which
at the time of the trial, seemed impossible to have occurred, e.g.
the American Government using private citizens in supplying
Iran with arms for hostages, in direct contravention of publicly
stated foreign policy.
The above information, which was more than the "tip
of the iceberg," in the hands of defense counsel would have led to
the development of the evidence necessary to prove Mr. Durrani's
defense, and would have resulted in the termination of the prosecution,
since the Arms Export Control Act cannot be used to prosecute arms
exports made in conjunction with or on behalf of the United States
Government. This suppression had a great effect upon the preparation
and presentation of Mr. Durrani's defense, and undermines confidence
in the outcome of the proceeding.
b). As additionally set forth in the Court of Appeals
summary, Charles Moyer of the Central Intellegence Agency (CIA)
testified that all of the parts procurements for the NSC and
Oliver North came from the U.S. Army and that no private parties
had been involved in the arms or parts procurement. This.testimony
has now been shown to have been false, by the Senate Committee's,
subsequent trials and recently declassified documents. The Senate
Committee Investigation Report on the Iran-Contra Affair itself
makes it clear that one of the problems inherent in the investigation,
 was the extensive involvement of private parties such as Mr. Durrani
in the covert arms dealings of the NSC, See Report of the Congressional
Committies Investigating the Iran-Contra Affair, H.R. No. 433, S.
Rep. No. 216,
100th Cong., 1st Sess. pages 327-72 (1987), attached hereto as
EXHIBIT D.
This information, as was most of the developed records
of the hearings, too late to assist Mr. Durrani or his counsel. It
does however, at this juncture, show the extensive involvement of
private parties in the procurement of Hawk Missile parts by Oliver
North and others, including the Richard Secord/Albert Hakim use
of Forways Industries, Inc. of New Jersey, which is still shipping
military equipment to Iran through Beechcraft a subsidiary of the
Hawk Missile manufacturer Raytheon in West Germany. Forways Industries,
Inc. was indicted along with several of its employees for export
violation in the Southern District of California, Case No. 88-0425
(JLT), filed May 26, 1988, and the entire prosecution terminated
becau.se of the continuing covert exports for the government. See
EXHIBIT E. This information, now part of the public record, and
formerly suppressed by the government, completely supports Mr.
Durrani's testimony, destroys the governments rebuttal case, and
demonstrates the continuing nature of the governments arms dealings
with Iran. All using "Private Persons and Companys."
c). Deliberately suppressed by the. Assistant United States
Attorney (AUSA) Holly Fitzsimmons, was the information and documents
obtained from the trip to Belguim with Customs Agent Steve Arruda.
During this trip, AUSA Fitzsimmons and Agent Arruda
 interviewed T. Van de Meersche about the Hawk Missile shipments. Mr.
Van de Meersche extensively answered questions and provided AUSA
Fitzsimmons with documentation regarding the Hawk Missile shipments,
both those alleged to have involved Mr. Durrani, and other shipments
from West Germany. The first shipment of Hawks, as AUSA Fitzsimmons
was informed, was made by an agreement dated August 22, 1985, the
same day that President Ronald Reagan authorized the arms for
hostage dealings. This shipment was arranged by Manuel Jose Pires and
he shipped the first Hawk parts from the U.S. Stockpiles in
West Germany. The parts went from West Germany to Brussels, Belguim
and then to Iran. 3 / Mr. T. Van de Meersche additionally informed
AUSA Fitzsimmons, that all operational details for that and later
shipments, was set out by Manuel Jose Pires, and that Pires had
claimed to be working for the U.S. Government. Mr. T. Van de
Meersche executed a statement for Mr. Durrani, attached as
EXHIBIT G, and set out the basic facts comprising the conversation
of the interview.with AUSA Fitzsimmons.
Additional support of Mr. Durrani's testimony in regard
to his defense, were the documents linking Manuel Jose Pires with
the CIA, something which the AUSA denied at trial, and a major focus
of AUSA Fitzsimmons in her summation to the jury. The documents,
together with the T. Van de Meersche documents, connect the elements
of Mr. Durrani's testimony into a solid wall of evidence. Mr.
Pires, according to the government in another prosecution, was
involved with the CIA and the shipment of arms. In the case of
3 / This visit is additionally confirmed by the contact between this court and Mr.
T. Van de Meersche of COMEXAS, Brussels, Belguim. In which this Court was
informed of the relationship of Mr.`-Manuel Jose Pires and the shipment of
Hawk missile parts. The letter details the visit by AUSA Fitzsimmons, See
EXHIBIT F.
7.
 United States v. Abdulraheen M. Badir, Case No. CR-86-267-A,
Northern District of Georgia, the government introduced the
documents in EXHIBIT H, which establish the Jose Manuel Pires--
Oliver North--CIA--Iran dealings, and other arms dealings prior to
the public exposure of the Iran-Contra affair. This information
was definitely in the hands of the government, and most of it was
in the possession of AUSA Fitzsimmons personally.
The importance of the above cannot be understated, since
AUSA Fitsimmons herself: presented witnesses who disavowed the CIA-
Pires relationship. AUSA Fitzsimmons additionally made constant
remarks to the jury in closing arguments, calling Mr. Durrani's
testimony "unbelievable." Such conduct was.particularily egregious,
since AUSA Fitzsimmons knew the representations she was making on
behalf of the government were false.
d). The government additionally suppressed the United
States Customs Declaration forms showing the importation of
ammunition in October of 1986, by the CIA under the names of Merex
and Interarms, a company owned and operated by Samuel Cummings, 4 /
Senator John Tower's former brother in law. These declarations
demonstrating the labling of the containers as "machine parts and
oil drilling equipment", exactly as set forth in Mr. Durrani's
pretrial affidavit. This information and the supporting documents
4 / Interarms has long been a close cousin and partner of the Central Intelligence
Agency. Its arms manufacturing and dealings with the CIA began at the very
inception and formation of the Office of Strategic Services (OSS), the
forerunner of the CIA in World War II. The activities of Interarms continue
to this day. In proper perspective, the appointment of John Tower to,
investigate the arms dealings, is a classic story of the fox being set
to guard the henhouse, and could have been done for not other purpose than
damage control for the NSC renegade operation.
 included in EXHIBIT I, were suppressed by the government to
conceal the arms through private parties such as Merex, which
belonged to Mr. Durrani, and Interarms, which belonged to Samuel
Cummings. The CIA used these individuals and their companies to
ship covertly, arms and weapons to the contras. The pattern
of false declarations made in the course of concealment included
the falsification of customs declarations, shipping records, storage
and transfer records at the Sunny Point Ammunition Depot.
The documents related to the customs declarations were
located by an investigative journalist Rick Eyerdam in June of 1989,
and show both the Merex shipment and the Interarms shipment in the
same declaration from the manifest. See EXHIBIT I, pages 4 and S.
These are the very facts the AUSA Fitzsimmons at the trial
called false, contesting both the involvement of the CIA with Merex
or Mr. Durrani, using her own statements and that of government
witnesses. As the Durrani affidavit, EXHIBIT B, page 6, paragraph
18 states: It is my understanding that the arms shipments made by the
United States government to Iran were made to the Iranian National
Oil Company, generally shipped in individual airplanes in boxes
labelled "oil drilling equipment," those being the arrangements
set by the United States government. Until the documents were
uncovered in June of 1989 by Mr. Eyerdam, the conformation of Mr.
Durrani's testimony, and the documentry suppression of the government
could not be shown.
 e). Suppressed from the defense counsel and from Mr.
Durrani, again, was the Munitions List from the United States
State Department showing that the Bell Helicopter parts that the
government claimed had been illegally exported by Mr. Durrani,
were not even on the restricted list. While the government did not
charge Mr. Durrani with these events as criminal offenses, they
were used as "prior bad acts" in an attempt to show a pattern of
export violations, demonstrating the lack of mistake, and alleged
purposful conduct. The use of these actions, such as the Bell
Helicopter parts exports, during the pre-trial phases, resulted in
the detention of Mr. Durrani without bail, and eventually to the
verdict. In spite of the fact that the Bell helicopter or the parts
for it, were not subject to'any State Department export controls.
This is the very equipment that the government allowed
Brenda Carnahan,. the para-legal from the State Department to testify
were controlled by State Department export regulations. The State
Department itself confirmed that the Bell Helicopter and its parts
were not subject to their regulations, EXHIBIT J, the letter from
the State Department dated the 19th. of July 1988 clearly conflicts
with the governments "version" of facts in trial.
f). Suppressed again during the trial and later recovered
by ABC News Department, Washington D.C. and given to Mr. Durrani,
were the depositions of Charles Mulligan, the vice president of
Southern Air Transport Company, a CIA controlled company, Richard
Gadd, who worked for Richard Secord/Oliver North and Captain Saunders,
a pilot for Arrow Air, a Florida Corporation contracted by the NSC/
CIA/SAT to move weapons and equipment as part of the covert Iran-Contra
 weapons/hostage operation.
In Mr. Durrani's pretrial affidavit, page 3, numbered
paragraph 9, it was stated: Once when I met with Hassan in Lisbon
in 1986, he showed me an airplane belonging to Arrow Air, an
American Company, at air force base in Lisbon. The plane was a
Boeing 707. There were 200 AIM-9P and 100 AIM-9B Sidewinder missiles
on the plane, which were being taken out of NATO and. Portuguese
military stocks for shipment to Iran at prices of $55,000.00 and
$45,000.00 respectively. EXHIBIT B, supra.
All of the testimony by Mr. Durrani going to Portugal and
meeting with George Hassan was discredited by the government as was
Mr. Durrani's related allegations concering the involvement of
Arrow Air in the weapons shuffle. The documents in the depostions
given to Mr. Durrani and the testimony of the individuals, clearly
show the CIA/NSC Arrow Air links. Charles Mulligan, from the Southern
Air Transport (SAT) testifed in the deposition at page 40:
BY MR. TIKFER
Q: CHARTER QUOTATIONS BY SOUTHERN AIR TRANSPORT ARE OR
ARE NOT HANDLED IN YOUR DEPARTMENT?
A: NOT HANDLED.
Q: IN WHOSE DEPARTMENT ARE THEY HANDLED?
A: SALES.
Q: I SHOW YOU A DOCUMENT, A SERIES OF DOCUMENTS FROM
1148 TO 1159, I MAY GO THROUGH THEM ONE BY ONE. THE TOP
ONE, FIRST, PAGE 1147 AND 1148 . . .
Q: CAN YOU TELL THE CIRCUMSTANCES UNDER WHICH YOU
STARTED TO KEEP SUCH A FILE?
A: YES. YOUR DATES. BILL LANGTON TOLD ME THAT DICK
 GADD HAD A SERIES OF TRIPS IN ORDER TO MOVE SOME CARGO, IT
WAS NOT SPECIFIC WHAT THE CARGO WAS, BUT IT WAS SENSITIVE IN
NATURE IS WHAT I WAS LED TO BELIEVE OR ACTUALLY TOLD, FROM
[deleted] TO CENTRAL AMERICA, DESTINATION UNSPECIFIED AT THAT
POINT.
WE AT THAT TIME DID NOT OPERATE 707 AIRCRAFT AND IT
HAD TO BE DONE WITH A JET AIRPLANE BECAUSE OF THE PAYLOAD
AND I THINK BILL HAD ORIGINALLY QUOTED GADD USING THE HERC,
BUT THE PRICE WAS ASTRONOMICAL BECAUSE IT COULD CARRY ONLY
ABOUT HALF, SO IT WAS NOT GOOD ECONOMICS.
BILL ASKED ME TO MAKE SUB-SERVICE ARRANGEMENTS,
ACTUALLY BROKER THE TRIP OUT. SO I HANDLED THAT AND BECAME
THE POINT OF CONTACT WITH DICK GADD ON THESE TRIPS, AND I
CONTRACTED WITH ARROW AIR TO DO TWO TRIPS AND I DON'T KNOW
WHETHER THIS FILE - AS I RECALL, I DON'T HAVE ANY NOTES FROM
THE SECOND TRIP. I THINK THESE ALL PERTAINED TO THE FIRST
TRIP, BUT WE DID TWO SUB-SERVICE WITH ARROW AIR.
I THINK ONE WAS IN JANUARY, EARLY JANUARY. I AM
NOT SURE EXACLTY. I THINK THE OTHER ONE IN FEBRUARY OR
MARCH.
Q: DID YOU NORMALLY HANDLE SUB-CHARTERS?
A: NO. WE WANTED THIS WAS---CONSIDERED TO BE VERY
SENSITIVE IN NATURE AND I THINK THAT BILL LANGTON AND MYSELF
WERE THE ONLY TWO PEOPLE IN THE COMPANY THAT WERE AWARE OF
THESE TRIPS AND PEOPLE MAY HAVE HAD AN INKLING OF WHAT WAS . . .
Mr. Mulligan testifed.further concerning the Arrow Air
involvement and the weapons dealings through Portugal at
 pages 54-55:
BY MR. TIKFER
Q: THOSE PHONE NUMBERS?
A: THOSE PHONE NUMBERS. WHEN I TOLD GADD THAT I EVEN
HAVE SECORDS CAR PHONE NUMBER, GADD EXPRESSED A LITTLE
DISPLEASURE THAT I EVEN HAD THAT. BASICALLY, WHAT HAPPENED
ON THIS TRIP, BECAUSE OF THE SNAFUS, ALL THE COORDINATING
ACTIVITIES, GADD WAS OUT OF THAT LOOP AND I WAS DEALING
DIRECT WITH TOM CLINES WHO GAVE ME TEL IMPRESSION THAT HE
WAS WORKING FOR SECORD.
SO I MAKE A NOTE HERE THAT THE [deleted] FLIGHT IS
GOING TO ARRIVE WEDNESDAY AT 01302, THE REST OF IT DOESN'T
MEAN MUCH TO ME. I NEVER DID CONTACT SECORD.
Q:
WAS ARROW AIR WORKING WITH YOU ON THE SHIPMENT OUT
ARRANGEMENTS OR HAD THEY LEFT ALL THAT TO YOU, THE GROUND
ARRANGEMENTS [deleted] AND DEALING WITH THE DELAY AND
SUCH?
A: I WAS GETTING FED THE INFORMATION ON THE DELAYS
THE FIRST TRIP WAS DELAYED BECAUSE OF THE [deleted] FLIGHT BEING
DELAYED OUT OF [deleted] I WAS GETTING THAT INFORMATION ON
ARRIVAL TIMES FROM TOM CLINES WHO WAS IN LISBON.
THEN I WOULD IN TURN ADVISE ARROW WHEN THEY COULD
EXPECT THE CONNECTING FLIGHT TO BE IN.
ARROW MADE THEIR OWN HANDLING ARRANGEMENTS FOR
FUEL, AIR, AND ELECTRIC. SOMEBODY OVER THERE MADE
ARRANGEMENTS FOR THE LOADING OF THE FREIGHT. I CAN'T
REMEMBER WHO.
 The ABC supplied depositions additionally contain the
testimony of Richard Gadd, the interface between the NSC and the
CIA in the weapons transportation through semi-private compamies.
Mr. Gadd, in the deposition, admitted his involvement in the covert
operations.
At page 6:
Q: WHAT BRANCH OF THE SERVICE WERE YOU IN?
A: UNITED STATES AIR FORCE.
Q: AND WHEN DID YOU RETIRE FROM THE UNITED STATES
A: I BELIEVE IT WAS SEPTEMBER THE FIRST, 1982.
Q: AFTER YOU RETIRED FROM THE UNITED STATES AIR
FORCE, DID YOU CONTINUE TO WORK AS A PRIVATE CITIZEN ASSISTING
U.S. ARMED FORCES IN COVERT OPERATION?
A: SUBSEQUENTILY, I ASSISTED THE UNITED STATES
GOVERNMENT IN THOSE TYPES OF OPERATIONS, NOT NECESSARILY
COVERT.
Q: CLASSIFIED OPERATION?
A: CLASSIFIED OPERATIONS.
Q: AND DID YOU FORM YOUR OWN COMPANY SHORTLY
THEREAFTER?
A: YES.
Again at 7:
Q:
DURING THAT PERIOD OF TIME, NAMELY, FROM 1983
UNITL SEPTEMBER 1985, DID GENERAL SECORD TELL YOU HE WAS
WORKING FOR THE UNITED STATES GOVERNMENT IN ANY CAPACITY?
A: GENERAL SECORD MENTIONED ON SEVERAL OCCASIONS
THAT HE WAS A CONSULANT TO THE NATIONAL SECURITY COUNCIL (NSC)
 OR THE WHITE HOUSE, AND ALSO A CONSULTANT TO THE DEPARTMENT
OF DEFENSE.
When questioned about certain transactions occurring
between 1985 and 1986, Mr. Gadd testifed to the number of trips
and the types of materials carried on Arrow Air contract flights:
Page 10:
Q: FOR THE CHARTERS IN BOTH 1985 AND 1986, WHAT KIND
OF MUNITIONS DID THEY CONTAIN?
A: I BELIEVE IT CONSISTED OF AMMUNITION, 7.62,
EXPLOSIVES, 40 MILIMETER SHELLS, AND WEAPONS . . .
Q: COMPANY OR INDIVIDUAL, IF YOU KNOW?
A: THERE WAS ONE COMPANY IN CANADA, I BELIEVE IT
WAS CONNECTED WITH SUPPLYING THE MUNITIONS.
In addition to the above depositions, the FBI conducted
an investigation into the Gander, Newfoundland air crash of the
Arrow Air charter flight in December of 1985, this report traced
the flights back to Lisbon, Portugal where the shipments were loaded
in to the aircraft, in exact comformity to the facts in the affidavit
of Mr. Durrani and his trial testimony. The admissions above, and
the involvement of the "private party" Arrow Air carrier in the
weapons shuffle could not have been known by Mr. Durrani unless his
involvement was intimate enough to know the exact details of the
extremely secret operations. The stand off use of "private parties"
and businesses was such, that the CIA/NSC could conduct their
opperations and yet as this case demonstrates, disavow any knowledge
15.
 to Congressional investigations, oversight committies and the
Courts. (emphasis added). See EXHIBIT K.
g). Suppressed again, was the "CASEY" memorandum which Mr.
Durrani claimed would show the governments decision to use "private
parties" and to ship additional lethal weapons to Iran in exchange
for hostages. Mr. Durrani testified at trial concerning the contents
of the letter and Mr. Durrani's attorney attempted to subpoena
it. The government in response to the subopoena denied the existance
of the letter, Charles Moyer on the witness stand claimed it did not
exist, and the AUSA Fitzsimmons impeached Mr. Durrani with the
testimony of Charles Moyer, stated in summation that such a document
did not exist.(RT-115, attached as EXHIBIT L)
Now, the CIA has confirmed the existance of the memorandum
to Mr. Durrani, and the letter of confirmation is attached as
EXHIBIT M. The AUSA in summation additionally told the jury that
"he wished that a "'CASEY"' menorandum existed." Inferring that
Mr. Durrani had lied to the court as had his counsel.
THE GOVERNMENT KNOWINGLY USED PERJURED TESTIMONY
IN THE TRIAL TO CONVICT MR. DURRANI
a). The testimony of Michael Sneedon, incorporating
subparagraph (a) of Ground One, supra, is documentable now as false.
Oliver North, by his own admissions, in Senate hearings, his trial,
public speaking engagements, and now the government in his trial
admits he was in London at the same time as claimed by Mr. Durrani.
As shown by the points and authorities, infra, it is. not
essential and entirely tangential to the issue if the AUSA was
personally aware of the false nature of the testimony, this may
 however, if proven to have been within her actual knowledge, be
germane to whatever remedy the court decides to apply.
b). The testimony of Charles Moyer of the CIA concerning
the involvement of "private parties" and the "CASEY" memorandum,
incorporating subparagraphs, (b) and (g) of Ground One, supra, is
now documentable as false. Not only were private persons and their
companies used by the NSC/Oliver North/Secord/Poindexter/CIA "covert
action team", but it was the operational norm, so that the restrictions
under the Boland Amendment could be evaded, that they could lie to
the Congress, its oversight committees, and even this court. The
false nature of this is emphasised by the documents in EXHIBIT I,
set forth in subparagraph (d) of Ground One, supra, where the
government shipments of ammunition and weapons, from both Interarms
and MEREX, Mr. Durrani's company are contained in a single shipment
for the CIA.
c). The testimony of Charles Moyer of the CIA concerning
the lack of involvement of Manuel Jose Pires and his requests t
Mr. Durrani to locate and arrange shipment to Jet Stream for the
240 missing Hawk Missile parts from the questionable dealings of
Oliver North and Poindexter with Iran, was known to have been
false by AUSA Fitzsimmons, since she and agent Arruda of the United
States Customs both traveled to Brussels, Belguim in the investigation
of the Hawk shipment. She was provided information and documents
regarding the actions of Mr. Pires, his companies, and the governments
involvement with the procurement. She was told that Mr. Durrani
was instructed by Mr. Pires, to deliver all parts to Jet Stream
and nothing more, the Pires/North/CIA are all addtionally linked by
 the documents in EXHIBIT G, and the actual knowledge of the facts
concerning this connection, is documented by the letter that Mr.
Van de Meerssche sent to this court, not understanding that a
judge in an American Court does not decide the evidence and could
release Mr. Durrani based upon the December 29th, 1989 letter. See
EXHIBIT F, supra.
d). The AUSA Fitzsimmons claimed personally and by the
testimony of Charler Moyer that Mr. Durrani and his company MEREX
had noninvolvement with the CIA arms procurements, the representatons,
and the testimony of Mr. Moyer in regard to these facts is now
documentable as false, incorporating subparagraph (d) of Ground One,
supra, the documents showing the MEREX and.Interarms shipments in
the same load of CIA acquired supplies completely contradicts the
testimony of Charles Moyer and AUSA Fitzsimmons personal summation.
e). The suppressed Munitions List from the United States
State Department concering the allegedly restricted status of the
Bell Helicopter parts. The State Department itself denies this and
maintains that the Helicopters and the parts are not subject to
any State Department Export restrictions or licencing requirements.
Under the above, the testimony of Brenda Carnahan, the
"para-legal" and a government witness, is false on its face, and should
have, or was actually known to be so by AUSA Fitzsimmons. This
misrepresentation was, in addition to the facts in the trial, a
major part of why the Judge (Daly) would not release Mr. Durrani
on bail before trial.
 THE CONVICTION IS BARRED BY DUE PROCESS ESTOPPEL SINCE
THE GOVERNMENT ITSELF THROUGH ITS AGENTS INDUCED THE SHIPMENTS OF THE
MISSILE PARTS FROM THE UNITED STATES
In the light of facts developed in the hearings by the
Congress, trials of government officials, private media investigators
and other emerging public sources, The facts stand clear Mr. Durrani
was telling the truth on the witness stand and in the pre-trial
affidavit. That affidavit itself, contained information before the
trial, which only now can be proven to be true. The veil of "national
security" if legitimately employed in the first place, slowly lifts
to confirm the involvement of Mr. Durrani's with government efforts
to covertly procure and ship the Hawk Missile parts to Iran. The
shredding of documents by Oliver North, the still persuasive
concealment, makes exact documentation impossible. However, the
level of information known to Mr. Durrani, and the exact circumstances
could lead any reasonable jury to determine that his actions were,
as claimed at trial, on behalf of the government. Additional supporting
documentation, in the form of documents related to the the Hawk
Missile shipments from the United States in November of 1985, in
exact conformity with the testimony of Mr. Durrani at trial (RT of
3-24-87, pages 32-38; 3-25-87 page 172) is confirmed again by
documents declassified in November of 1989. As was the letter of credit
in the pre-trial affidavit, page 3, paragraph 8, was made public
in the Congressional hearings. See EXHIBIT N. (Department of the
Army "Point Papers")
In the face of the emerging proof of Mr. Durrani having
 been induced to have procured the Hawk Missile parts by Manuel
Jose Pires, who in turn was requested and authorized to act on
behalf of the United States government, the CIA and Oliver North
of the NSC, prosecution. is prohibited on due process estoppel
grounds, since the government by the actions of its agents and
authorized representitives may not induce an individual to perform
actions, and then prosecute them for having done what they requested.
Incorporating all facts in Grounds, One and Two, supra,
and the level of knowledge held by Mr. Durrani before trial and
during trial, a prima facie case of government involvement and
inducement is established and the prosecution, indictments and
conviction of Mr. Durrani may not stand.
THE GOVERNMENT HAS SELECTIVELY PROSECUTED
AND PUNISHED MR. DURRANI.
The overall history of prosecutions under the Arms
Export Control Act arising out of the Iran.Contra affiar shows,
with few exceptions, that prosecution itself for export violations
did not occur, or those so prosecuted received light sentences. Indeed
the organizers of the Hawk Shipments, e.g. Oliver North, Richard
Secord, and Albert Hakim were not even prosecuted at all, and
the charges against those defendants which the government eventually
did charge, try and convict them, arose out of the destruction of
documents, and lying to the Congress.
Other cases connected, directly or tangentially, to the
shipment of arms to Iran, in which individuals were convicted,
the sentences ranged from 33 months at the highest, (reduced to
 18 months), to probation. Mr. Durrani has at this point done more
time in prison for violations under the Arms Export Control Act,
than any person previously convicted.
.Such selective prosecution and punishment cannot be
justifed or upheld, nor the detention of Mr. Durrani sanctioned by
the court, in light of the sentences, treatment and liberty already
granted to others similarly situated. This is particularly sailent,
since this Court and the Federal Parole Commission both formulated
such time of detention on the premise that Mr. Durrani had committed
perjury by claiming to have been working for the govern.ment.
POINTS AND AUTHORITIES
I.
The Fifth Amendment of the Constitution of the United
States reads in relevant part, "[n]o person shall . . .be deprived
of life, liberty, or property, without due process of law. . .",
this language, together with the Sixth Amendment guarantee that
"In all criminal prosecutions, the accused shall enjoy the right .
to have compulasory process for obtaining witnesses in his
favor, and to have the ^-ssistance of Counsel for his defence.,
and are relevant to the courts determination of the application
of the facts in this memorandum to the case at bar, since the
a
actions of the United States, in the suppression of evidence
has denied the accused due process of law, witnesses in his favor
and interfered with the assistance of counsel that the constitition
guarantees.
Long since the Supreme Court decision in the landmark
case of Brady v. Maryland, 373 U.S. 83 (1963), it has been held that.
 prosecution which withholds information or evidence from an
accused, which if disclosed could bear upon the guilt or punishment,
denies that defendant due process:
"[a] prosecution that withholds evidence .. .
which if made available, would tend to exculpate
him or reduce the penalty, helps shape a trial
that bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a proceeding
that does not comport with standards of justice."
Id. 87-88.
This stems from the presumption that the trial process
itself is a search for the truth, and the suppression of information
from the accused, his attorney and the jury corrupts that function.
C.F. Mesarosh v. United States, 352 U.S. 1 (1956) "[h]as poisoned
the waters in this reservoir, and the reservoir cannot be cleaned without
first draining it of all impurity." Id. at 13. And accordingly, a
defendant who discovers and can prove the government has suppressed
exculpatory evidence, whether towards guilt or punishment, is entitled
to a new trial.
There is in addition to the suppression itself, an element
of materality required, this element must entail evidence which
creates a doubt which did not exist or which undermines confidence
in the outcome of the jury's verdict. Recently, the Supreme Court
In United States v. Bagley, 473 U.S. 667 (1985) restated this
principal, and held:
"[a] constitutional error occurs and the conviction
reversed, only if the evidence is material in the
sense that it's suppression undermines confidence
in the outcome of the trial."
Id. 677.
 The actual question of what constitutes suppression of
information in the governments files has under gone much analysis
with often conflicting results. In this regard, there is no bright
line rule for the court to follow. However, the principle is clear
enough, the defendant is entitled to any information in the
government's files, if that evidence is potentially useful to the
actual question of guilt or punishment. The Supreme Court in Giglio
v. United States 405 U.S. 150 (1972), held the U.S. Attorney responsible
for information not actually known or possessed by that particular
attorney, because the United States is an entity, and the knowledge
held by any party of that entity is imputed to the case prosecutor,
Id. at 154, this, based upon the agency realtionship of inter-
governmental agencies. Yet in spite of this decision, the circuit's
have failed to establish just what is possession of information for
purposes of defining a violation of the Brady mandate.
In reply to this failure to make definite rulings on the
relevance of failure to disclose, the Supreme Court again returned
to the issue in United States v. Agurs, 427 U.S. 97 (1976), and
created a three part test for reversal of criminal cases, under the
first test, reversal is required if the suppressed information
demonstrating that the prosecutions case contained perjured testimony
and that the prosecution should have known of the perjury, Id. at
103, the second situation, is if the. prosecution failed to produce
specific information requested by defense counsel, reversal is then
warranted if that information suppressed was "material, " Id. at
104, the third situation, is where defense counsel has not made any
request, but the prosecutor is in possession of exculpatory evidence
 which is obviously of use to the defendant, reversal is required if
that type of information undermines confidence in the outcome of the
proceedings or which created a doubt which did not exist, Id. at
106-108.
With respect to the application of the above guidelines to
the information suppressed in the instant case, this court must make
inquiry to determine which information was in the prosecutors files
and deliberately suppressed, and that which was in other governmet
files and negligently suppressed, and weigh both against the entire
trial record for determination of it's overall effect. The defendant
Durrani asserts that with the reasoned application of the suppressed
evidence, the proof of the governments prosecution would crumble
before the jury like a sand castle at high tide. The information
clearly showed that Mr. Durrani told the truth, exposes the prosecutor
for deliberate suppression, at least in regard to the Brussels,
Belguim evidence, and shows the governments covert hand of suppression
to be a thumb on the scales of justice, tilting the outcome by means
most foul.
II.
The suppression of evidence under the due process of the
constitution, is perhaps only surpassed by a prosecutors use of
perjured testimony to gain a conviction, In Mesarosh v. United
States, 352 U.S. 1 (1956), the Supreme Court in reversal of that
case on motion for the government, stated in dicta, "The dignity of
the United States Government will not permit the conviction of any
person on tainted testimony." This stems from the very foundation
of the Judeo-Christan principals which underly the English and
 American judical process.
The extention of the perjured testimony rules go beyond
just not allowing or subjorning false testimony, and encompass the
prosecutor making misleading or false statements to the jury, Miller
v. Pate, 386 U.S. 1 (1967); United States v. Valentine, 820 F.2d
565 (2nd. Cir. 1987) at 570-71.
In this respect, the testimony claimed by the defendant in
the instant motion to be false, should have been known by the
prosecutor, since the evidence attached as exhibits came from the
governments own files. In particular regard, the Oliver North trip
to London at the end of September 1986, was the most hotly disputed
point of the trial and the repeated focus of the prosecutors rebuttal
and closing argument. Yet it was the government itself, in the North
trial which stipulated to the same September 1986 trip which. the
government, its witnesses and the AUSA herself denied ever took place
in the Durrani trial. The AUSA herself should have equally known that
the Bell helicopter parts were not subject to the export restrictions
claimed by the State Department witness Brenda Carnahan, the involvement
of the "Private Parties" such as Merex, Interarms, Arrow Air, Comexas,
Forways, MWB of West Germany, and numerous other individuals as the
commercial cutouts to avoid the scrutiny of Congress and investigative
committees were the standard operating proceedures of the CIA/NSC
staff, e.g. Oliver North, Richard Secord, Albert Hakim and a host of
errant players from each agency. The relationship of Pires-North-CIA
in the shipments of arms to Angola in 1985 were additionally in
the actual possession of the government, since they were used as
evidence and exhibits in the Badir case, in the District of Georgia
 (charges dismissed). And the relationship of Manuel Pires-Comexas-
Jet Stream, and the particularized and limited involvement of
Mr. Durrani in executing the instructions supplied by Mr. Pires,
the CIA Lisbon, Portugal asset, in locating and arranging the
delivery of the Hawk missile parts to Jet Stream. Was all known by
AUSA Fitzsimmons to have been exactly as testified to by Mr. Durrani,
since the documents -d statements to all of the above was supplied
to her personally in Belguim by Mr. T. Van de Meersche prior to
trial. Yet the AUSA herself made constant misleading arguments and
statements to the jury and the court, and allowed witnesses to
testify to facts contrary to her own suppressed evidence. By the
statement of Mr. T. Van de Meersche himself, Mr. Durrani had nothing
to do with the export of the parts, Mr. Durrani was only to pick up and
deliver the parts to Jet Stream, for export to Belguim on explicit
instructions of Manuel Pires given to Comexas.
Under the above, the logic of the Second Circuit in
Perkins v. LeFevre, 691 F.2d 616 (2nd. Cir. 1982), is both applicable
and proper. This court should not hesitate to find the challenged
testimony false, the statements by AUSA Fitzsimmons misleading, and
order the reversal of the conviction and a new trial, since the
above actions represent a corruption of the truth seeking process.
III.
The Due Process clause and the statute under which Mr.
Durrani was indicted both prohibit prosecution for exports of
weapons on behalf of the United States and its agencies, whether
or not the exports are overt or covert. In this the statute itself
makes the followng definition:
 22 U.S.C.?2278(b)(1)(2) Execept as otherwise
specifically provided in regulations issued under
subsection (1)(1) of this section, no defense articles
or defense services designated by the President under
subsection (a)(1) of this section may be exported or
imported without a license for such export or import,
issued in accordance with.this chapter and regulations
issued under this chapter, except that no license shall
be required for exports and imports made by or for an
agency of the United States Government (A) for official
use by a department or agency of the United States
Government, or (B) for carrying out any foreign
assistance or sales program authorized by law and subject
to the control of the President by other means.
As the emerging picture of suppression and secrecy disintegrate
and the documentry proof of the inducement and involvement of the
government itself in the actions of Mr. Durrani, the language of
the statute itself mandates the court reverse the convictions, since
the government itself, by and through the actions of its agents,
may not induce an individual to procure, transport or ship items
under the guise of national policy, and then prosecute the indivduals
who perform the tasks they induced. This is in addition to the
prohibition on punishments under the statute above, constitutionally
mandated by the defense of entrapment estoppel, and the Due Process
Clause of the Fifth Amendment.
Due procss, under the estoppel defense, prohibits the
government from prosecuting those who its own agents have authorized.
to perform acts. This had been repeately before the Supreme Court
beginning with Raley v. Ohio, 360 U.S. 423 (1959), and most recently
in United States v. Pennsylvania Industrial Chemical Corp., 411 U.S.
655 (1973). The factual situation and the holding of the Supreme
Court in United States v. Pennsylvania Indus. Chem, Corp., supra,
is most applicable, since that case, as here, involved the restrictions
 against the defendant in offering evidence that it had been mislead
by government officials into believing that the law in question did
not apply against the Corporation in the situation for which charges
were eventually brought.
In the instant case, Mr. Durrani pled and attempted to
have the charges dismissed, based upon his having been induced to
commit all actions by agents of the United States Government and
was foreclosed from proving this by the massive suppression by the
government of the very evidence which it possessed. This was then
effectively foreclosed,-as the conviction should now be, based upon
the proof of the Manuel Pires-Oliver North-CIA/NSC links in the
dealings, including the evidence attached to this motion, since
these individuals had all been authorized or ordered to perform the
actions which eventually led to the prosecution of Mr. Durrani.
IV.
The Due Process and Equal protection Clause of the Fifth
Amendment prohibits the government from selectively prosecuting
or punishing an individual, while not prosecuting or lightly punishing
other individuals similarly situated. In order to make out a
colorable claim on selective prosecution, a defendant such as Mr.
Durrani must satisfy a two part test, as set forth in St. German of
Alaska E. Orthodox Catholic Church v. United States, 840 F.2d 1087
(2nd. Cir. 1988) at 1095, this test consists of:
(1) that, while others similarly situated have
not generally been proceeded against because of
conduct of the type forming the basis of the
charge against him, he has been singled out for
[investigation], and (2) that the government's
discriminatory selection of him for [investigation]
has been invidious or in bad faith, i.e. based
upon impermissable considerations as race, religion,
or the desire to prevent his exercise of constititional
rights.
28.
 In regard'to satisfying the two part test, a defendant's
burden in regard to the above is not one lightly carried, and must
be supported by conclusive evidence. If the defendant can make a
colorable. showing of being singled out for prosecution, he may
be allowed to conduct discovery to make the necessary determination
of the second prong of the test, United. States v. Gordon, 817 F.2d
1538, 1540 (11th. Cir. 1987), cert. dismissed, 109 S.Ct. 28 (1988).
While obvious limitations are imposed upon Mr. Durrani
because of his incarceration, from that evidence made available to
him from media and other sources, such as clerks of district courts,
it is evident that with this exception, charge for arms exports
on behalf of the covert arms dealings of the NSC/CIA have not resulted
in prosecution by the government. This raises serious questions then
as to the actual motive of the government in prosecuting Mr. Durrani
and subjecting him to the harshest sentence of those previously
prosecuted. Here, the motive of the government is suspected of
being motivated by participation in concealing the Iran-Contra
affair, since Mr. Durrani was the first case to break. If this is
true, then the prosecution is based upon improper motivation and
must be dismissed for being in violation of, the Due Process and
Equal Protection Clause. The instigators,. Oliver North, Albert Hakim,
Richard Secord, Thomas Clines, Richard Gadd, Charles Mulligan and
the entire bevy of players from the shadow government "enterprise"
supplying arms covertly around the globe were all left uncharged on
weapons export violations, and were only prosecuted for destroying
documents and lying to investigators and Congress. The above
individuals additionally profited handsomely from their dealings and
 allowed to keep the proceeds.
SUMMARY AND CONCLUSION
It is clear now, that the role of the government from the
onset of Mr. Durrani's arrest, was to contain the shattering and
sickening pieces of the Iran-Contra puzzle from the American
Public, in the parlance of those in the government, it was the
abosolute first line of "plausible deniability and damage control."
It was a shadow government being run without official records, of
the planning, the approval, the implementation and the ultimate
failure. Where politically sensitive information was being put to
the test, the truth was quickly labeled as lies, disavowed and
disclaimed. By suppressing the very documents, which formulated and
proved Mr. Durrani's defense the government and its attorneys
twisted the truth to suit the occasion, and worked out the entire
script of the trial in advance, to arrive at a predetermined conclusion.
This is the government's face, whether it was a deliberate
attempt by devious methods or a incompetent investigation, the result
was the same, the conviction of a man who was just asked to "do
something for his adopted country."
The court should not tolerate or condone the conduct of
the government, which accused Mr. Durrani, and got caught center stage
in the act of manipulating the justice system, by suppressive slight
of hand.
For reasons set forth under grounds I through IV of the
foregoing motion, supported by the exhibits attached in the
appendix. The court should reverse the convitions of Mr. Durrani
 and order a new trial free form the abusive tactics of the
government.
Mr. Arif A. Durrani
P.O. Box 5000
Sheridan, Oregon 97378
#09027-014
Respectfully submitted this the l`day of _'/~"'"
31.
 Department of State, in violation of 22 U.S.C. ?2778(b)(1).
He was sentenced to a term of five years imprisonment on
count 1 with a fine of one million dollars ($1,000.000), a concurrent
five year sentence and a consecutive one million dollar ($1,000,000)
fine on count 2, and a concurrent 10 year sentence and one million
dollar ($1,000,000) fine on count 3. Defendant, who was initially held
on pretrial detention, is currently incarcerated.
PRELIMINARY STATEMENT
Defendant Arif Durrani was charged with the unlicensed export
to Iran of parts designed for the Hawk missile system.1 The shipment,
and a subsequently planned shipment, occurred in late August and early
October, 1986 -- the same period during which the staff of the National
Security Council was coordinating its secret transfer of spare Hawk
missile parts to Iran.
Through the widely publicized Congressional hearings on the
Iran/Contra affair that took place this summer, the nation has learned
much about this highly irregular covert operation that was not
presented at this trial -- about the utilization of private citizens
who were not accountable to the government, about contemplated military
operations outside accepted principles of governmental oversight, about
the willful destruction of government documents. These matters not
1Under 22 U.S.C. ?2778, the President is authorized to control the
import and export of defense articles which have been designated on the
United States Munitions List. One engaged in the business of exporting
designated defense articles must register with the Secretary of State.
22 U.S.C. ?2778(b)(1). Export of designated items requires a license
from the Secretary of State. However, a license is not required for
exports "made by or for an agency of the United States Government (A)
for official use by a department or agency of the United States
Government, or (B) for carrying out any foreign assistance or sales
program authorized by law and subject to the control of the President
by other means." 22 U.S.C. ?2778 (b)(2).
 only cast suspicion on the evidence that was presented but raise even
.graver suspicion about evidence that may have been withheld. They also
provide a telling backdrop to a number of flawed legal decisions made
by the trial court and leave the ultimate conclusion reached by the
jury of questionable validity.
Throughout the proceeding, the trial court based a series of
critical decisions on two erroneous premises: first, that the
activities of all participants in the covert government arms sales to
Iran would be fully and regularly documented and such documents would
be accessible to government personnel at the time of the trial; and,
second, that the question of whether defendant's activities could have
been part of the government's clandestine military sales program with
Iran rested on an assessment of defendant's credibility.
Thus, despite Durrani's pre-trial affidavit stating his
belief that he was involved in the United States operation coordinated
by Richard Secord, and despite striking coincidences between the
defendant's conduct and the conduct of the NSC and CIA as subsequently
reported in the Tower Commission Report, the court ruled that the
government was not obligated to prove that the exports were not part of
the NSC. operation unless and until the defendant presented affirmative
evidence that they were.
Then, after the defendant testified, the court not only
precluded the introduction of evidence that corroborated his connection
with the American arms sale to Iran, but accepted as adequate
government proof that in fact failed to negate it. Finally, the court
gave a charge to the jury that shifted the burden of proof, conveyed
the impression the case turned on the credibility of the defendant, and
misstated both the law and the defendant's theory of the case.
 STATEMENT OF FACTS
Prior to trial, defendant submitted an affidavit, dated
February 4, 1987, in which he attested to his prior knowledge of the
movement of arms to Iran by the American government through various
individuals and entities,'and his belief that the persons who had
approached him to procure the Hawk missile parts had, in turn, been
approached by U.S. government agents (in particular Richard Secord) to
obtain the Hawk missile spare parts. According to Durrani, he had been
informed that these parts were needed to complete deals that had
already been concluded between the United States and Iran. (A.20)
A month later, with the publication of the Tower Commission
Report, documents came to light that substantiated defendant's
affidavit. On March 9, counsel elaborated that it was defendant's
theory that he was asked to procure parts which could not be obtained
by the Department of Defense through normal means. (T.3/9/86, 136) To
corroborate this theory, counsel attempted to secure, among other
government records, several documents referred to in the Tower
Commission Report. (A.30-34)
In particular, defendant identified a list of Hawk missile
parts provided by the Iranians to the CIA in March of 1986, the packing
list of items subsequently shipped from the United States in early May
and delivered by the government to Iran in late May and early August,
and four documents (PROF memos) written by Oliver North to Admiral
Poindexter between April 16 and October 2, 1986.
In the first North memo, dated April 16, 1986, North wrote
about the inability to locate all the parts Iran had requested:
We have a problem on our side in that over
50 of the parts-now do not appear to be in
stock or are no longer made for our
version of the system. Nir [an advisor to
 Israeli Prime Minister Shimon Peres] is
checking in their older inventories to see
if they have them on hand. (A.91B)
This was significant corroboration of the assertion in
defendant's February 4th affidavit that he had been informed the parts
he supplied were needed to complete the American deal. In fact,
defendant contacted the private parts supplier from whom he ultimately
purchased the Hawk spare parts less than three weeks after North
reported the unavailability of parts, in early May, and furnished them
with a list of 240 Hawk missile parts that was identical to the list of
parts provided by the Iranians to the CIA in March of that year.
(T.3/17/87, 30-33; 3/26/87, 28-29)
Durrani's February 4th assertion that he was supplying some
of the parts the government originally had been unable to locate was
further corroborated by the packing list of items subsequently
delivered by the United States to Iran in late May and August. That
list showed that, of the seven items on the Iranian list which
defendant contracted to buy, your were either not delivered by the
United States or were short. (T. 4/1/87, 127-28, 147, 173)
Moreover, Durrani arranged for the export of five of the
items in the last week of August, 1986. (T.3/20/87, 57) Notably,
another revelation contained in the Tower Report was that on September
1986, a little over a week after Durrani's first export, North
reported to Poindexter that some of the missing parts had been located:
Since last week, CIA and Army Logistics
have located a significant number of HAWK
parts which had previously been listed as
?unavailable.' We now believe that the
total ?package' will be sufficient to
entice the Iranians to proceed with. the
sequential release pattern proposed in the
London meetings. (A.91J-K)
 Notwithstanding the defendant's affidavit, as substantiated
by the subsequently disclosed CIA lists and North memoranda, the court
ruled that the question of whether the defendant arranged for the
export as part of the NSC's military sales program to Iran -- i.e., the
question whether an export license was needed in the first place --
need not be addressed by the government in its case in chief. The
defendant was obliged to produce evidence raising the issue before the
government would be obligated to negate it. (T. 3/23/87, 28)
Then, after defendant testified, he was effectively precluded
from corroborating his testimony because of Oliver North's assertion of
his Fifth Amendment privilege against self-incrimination and the
court's sustaining of the government's objection to the introduction of
North's memoranda. .(T. 3/9/87, 141-49; 3/24/87, 67; 3/25/87, 244-51;
3/26/87,6-25; 4/1/87, 105)
In other words, defense counsel was not only given the
extraordinary task of unraveling the entire Iranian arms for hostage
deal -- a task found impossible even by the government's own
investigators -- but, more unjustly, was prohibited from sharing with
the jury the fruits of the government's investigation.2
The Government's Case in Chief
In early May, 1986, Durrani, representing himself as the
Chairman of the Board of a company called "Merex,." visited Radio
Research Instrument Company, a supplier of government surplus radar
equipment located in Danbury, Connecticut, and indicated he was
2The unfairness of putting the burden on defendant to produce evidence
about the government's covert operation when the government's point-man
on the operation was pleading the Fifth and withholding information
from the government's own investigators is patent. North's refusal to
cooperate and his shredding of documents certainly suggests that
important evidence was withheld.
 interested in buying Hawk missile parts. (T.3/17/87, 30, 25, 32) He
furnished a list of 240 parts (GX 6) to Executive Vice President Edmund
Doyle and asked which parts Radio Research had available. (T.3/17/87,
33) While Durrani did not indicate who he was buying these for, Doyle
explained that the export of all Hawk parts required a State Department
license. Durrani indicated his familiarity with export regulations and
assured Doyle that the required licenses would be obtained. (T.3/17/87,
32, 39)
In late May and throughout June, Doyle both wrote and telexed
Durrani at Merex, advising him that Radio Research could supply about a
dozen items on the list, enumerating the quantities available and
quoting prices. (T.3/17/87, 35-44) At the end of June, Durrani
expressed his desire to purchase various quantities of eight of the
items. He indicated to Radio Research President Paul Plishner that the
parts he was purchasing were going to Jordan and assured him that any
necessary documentation would be taken care of. (T.3/17/87, 41-42, 51,
58, 63-4, 69; 3/18/87, 62-63, 71; GX 8)
After considerable prodding from Radio Research for written
confirmation, on August 11, Durrani sent four written purchase orders,
and requested that they each be invoiced to "CAD Transportation,
Inc."-- a company not previously mentioned by Durrani-- in Westlake
Village, California. (T.3/17/87, 69, 75, 77-78, 79 81-88) 3 Thereafter
Durrani, at Doyle's instruction, sent corrected orders that included a
statement on each concerning the export license. (T.3_/17/87, 89-90)
A few days later, Doyle inquired about the intended freight
3The government's theory was that Durrani utilized CAD Transport and
conducted its business without records in order to conceal assets from
his wife in anticipation of a divorce. (T. 3/24/87, 190-95)
 forwarder. Durrani responded that he would get the necessary
information from his customer and that the customer "does everything.'
(T.3/17/87, 111-13; GX 30-a, at 6) Later, Durrani provided the
information about the freight forwarder, Jet Stream Freight Service in
New York. (T.3/17/87, 113) 4
The First Shipment
On August 22, Durrani visited Radio Research and inspected various
quantities of five of the items that were ready for shipment. He
signed an invoice, which was made out in care of Jet Stream Freight
Service, Valley Stream, New ':ork, and which included at the bottom a
warning that any export required a State Department license. Durrani
informed Doyle that Jet Stream would have the necessary license.
(T.3/17/87, 123-27)
Thereafter, Doyle contacted Jet Stream and was told that Jet
Stream did not have the requisite licenses. He reported this to
Durrani and informed him that, to protect Radio Research, the goods
would not be released unless Durrani signed a document guaranteeing
that the licenses would be obtained. Durrani agreed to sign whatever
4Jet Stream became involved with Durrani through its customer in
Europe, Willy de Greef. In June of 1986, the owner of Jet Stream, Hank
Spreeuwenberg, received a telex from a fellow freight forwarder in
Brussels, Tony Van Memeeryert who was with a company called "Comexas,"
regarding some shipments of spare parts from the United States for de
Greef, a Comexas customer. According to Van Memeeryert, de Greef had
given instructions to his supplier to forward various shipments to Jet
Stream which would then reforward the parts to Brussels in care of
Comexas. Thereafter, Durrani arranged for some 16 shipments for de
Greef through Jet Stream. In each instance, the freight costs were
paid for by the client in Brussels and Jet Stream split the profits
with Comexas. On numerous occasions, Jet Stream received telexes from
Comexas expressing de Greef's concern with delays and urging Jet Stream
to apply pressure on Durrani to expedite the shipments. With regard to
the August shipment charged in this case, Jet Stream received not only
telexes from Comexas, but also a phone call from de Greef.
(T. 3/20/87, 44, 118, 140, 159, 165-70, 219-40)
 Doyle prepared. To accommodate Durrani's travel schedule, Doyle
telefaxed a document to Jet Stream and Jet Stream personnel took it to
Durrani at John F. Kennedy Airport on August 26 for his signature.5
(T.3/17/87, 127-29; 3/18/87, 11; GX 47-A)
Upon receipt of the signed statement and a check for payment,
Doyle delivered the goods to a local trucker for transport to Jet
Stream in New York. (T.3/17/87, 129-30; 3/19/87, 169) The box
containing the goods was stenciled with black spray paint: "RJAF Amman,
Jordan" and had a Radio Research label on it. (T.3/19/87, 171)
Following customary practice, Jet Stream obliterated the
markings on the box and removed the packing list so that the supplier's
name would not be revealed. Pursuant to faxed instructions from
Durrani, Jets Stream owner Spreeuwenberg then prepared new invoices,
using blank invoices he had been given with CAD transports name and
5The document, prepared by Doyle with the assistance of Customs Service
Special Agent Steven Arruda, and signed by Durrani, stated:
"To whom it may concern. The export of
Hawk missile parts being sold to you by
Radio Research requires a U.S. State
Department export license prior to their
export. I certify that the appropriate
State Department export license will be
obtained prior to the exportation of the
Hawk missile parts from the U.S." (GX 65;
T.3/18/87, 11)
When Durrani signed the statement, he told Jet Stream's
Spreeuwenberg not to worry about the license, that he was getting his
orders from Washington, and showed him a paper with "Merex" on it. At
the time, Durrani was with Manual Pires whom he introduced as de
Greef's boss. Pires gave Spreeuwenberg a canvas bag of personal
effects and directed him to ship it to Lisbon. Durrani then gave Jet
Stream a check for $10,000. According to Spreeuwenberg's assistant,
Muhammed Moosa, the money was intended to cover the cost of the
shipment for Pires, Durrani's outstanding balance, as well as costs of
future shipments to Jet Stream from Durrani. However, the money was
not recorded in Jet Stream's ledger on Durrani's account. (T.3/20/87,
48-50, 51, 86-90, 179)
 address. On the CAD invoice, the value was reduced from $22,165 to
$367.85.6 The invoice showed that the parts were sold to "Kram, Ltd.;"
the shipment was consigned to Comexas in Brussels. (T. 3/19/87, 190-91;
3/20/87, 7, 56-64, 182-88, 216) The shipment was consolidated with
another smaller shipment from CAD to Comexas and sent to Brussels on
August 29. (T. 3/19/87, 182; 3/20/87, 189) The freight charges for the
flight to Europe were billed to Jet Stream's and Comexas' customer in
Brussels, Willy de Greef. (T.3/20/87, 159)
The Preparations for a Second Shipment
Throughout the month of September, Durrani spoke with Doyle
on a regular basis about testing that Radio Research was to perform on
certain of the ordered but still undelivered parts, the possible
purchase of additional equipment, and the repair of two "klystron
tubes" Durrani had delivered to Radio Research. Finally, after Durrani
arranged for the payment of $148,860, Doyle advised that the parts were
ready for inspection. (T.3/18/87, 15-29)
Durrani went to Radio Research to inspect the goods on
October 3. Once again, he signed a statement that the necessary export
licenses would be obtained, instructed that the boxes be marked for
Amman, Jordan, and arranged for the delivery of the boxes to Jet
Stream.. When he left Radio Research, he was arrested and the boxes
were seized. While in custody, Durrani claimed, "I don't know why I'm
arrested, I have all the licenses in California." (T.3/18/87, 31-33,
6By valuing the shipment at less than $1000, Jet Stream, listed on the
airway bill as the "shipper," avoided filing a "Shipper's Export
Declaration" with Customs; such a declaration is generally required for
shipments valued in excess of $1000. On at least one prior occasion,
on instructions from de Greef and without discussion with Durrani, Jet
Stream falsified shipping documents for de Greef. (T. 3/19/87, 193;
3/20/87,7, 248-49)
 40; 3/19/87, 197, 205) 7
As evidence that the exported items were on the United States
Munitions List8 and that Durrani neither registered with the State
Department, nor applied for or obtained export licenses, the government
introduced the testimony of Billy Boland, an electronic technician
equipment specialist at the Hawk Project Office, U.S. Missile Command,
Redstone Arsenal, and Brenda Carnahan, a paralegal in the Department of
State's Office of Munitions Control.
On direct examination, Boland claimed that, of the five items
exported to Brussels on August 29, two of them (items 48 and 64) were
"specifically designed" for the Hawk system, while a third (item 240)
was "specifically used" in the Hawk system. (T.3/19/87, 75, 79, 81)
One, a relay switch (item 54), was not designed specifically for the
Hawk; it is a repair part used in other pieces of equipment as well as
the Hawk. (T.3/19/87, 78) According to Boland, each of the line items
prepared for export on October 3 was "specifically designed" for the
Hawk system. (T.3/19/87, 82, 83, 84)
However, on cross, Boland clarified that he was not involved
7Shortly after Durrani's arrest, a woman identifying. herself as "Mrs.
Durrani" called Jet Stream and instructed Mr. Moosa to send the
shipment destined for Belgium to California instead, to destroy all
files, and that if asked, to deny knowing anything about Durrani or
CAD. Later, Durrani called and asked if the message had been received
and if the files could be destroyed. When Spreeuwenberg reported that
customs agents had already been there and seized the files, Durrani
said, "I have a lot of trouble." Spreeuwenberg responded, "Me too."
(T.3/20/87, 79, 82, 200-03) (In his testimony, Durrani denied that he
instructed Spreeuwenberg to destroy documents.
8 Category IV subsection (b) and (H) of the Munitions List includes
missle systems and all "specifically designed or modified components,
parts, accessories, attachments, and associated equipment" for such
systems.
 in the manufacturing process; and, therefore, could not say whether the
items, particularly such low level electronic equipment as the delay
line (item 48), were used in other equipment; he only knew that the
items met the Hawk's specifications. (T.3/19/87, 91) 9
Paralegal Brenda Carnahan was employed in the Services
Support Division of the Department of State Office of Munitions
Control, an office responsible for enforcing 22 C.F.R. ??120-130.
(T.3/19/87, 110-12) Over defense objection, Carnahan testified that,
at the request of the case agent, she made a determination that each of
the items exported and planned for export in this case fell within
Category IV of the Munitions List. (T. 3/19/87, 127-44) On cross, she
admitted that none of the items was specifically referred to in the
Code of Regulations, that she had no expertise in the design of the
Hawk system, that the State Department had never previously made a
formal determination with respect to any of the parts, that the
question of whether a particular part is on the List may be a difficult
and delicate one, and that her determination that each part was on the
Munitions List was based entirely on a telephone conversation she had
with Ralph Wills, an engineer at Redstone Arsenal. (T.3/19/87, 155-59,
164, 167) 10
9Boland also explained that the U.S. Army supplies spare parts to every
country around the world with a Hawk missile system except Iran; the
spare parts are stocked at Redstone Arsenal. If a part is ordered that
is not in stock, the Army will procure it, though obsolete parts could
take as long as two years to procure. (T. 3/19/87, 73-74, 87-88, 108-
09) According to Boland, with the exception of.one of the items at
issue, each of the items was in stock in May of 1986, and Redstone
Arsenal received no orders at that time that it could not fill.
(T.3/19/87, 86-87) However, Boland had no knowledge of any Hawk
missile parts being shipped to Iran in 1986, and had no knowledge of
the NSC or the CIA procuring Hawk parts in 1985 or 1986. (T.3/19/87,
102, 104, 94)
 The Defense Case
Durrani testified in his own behalf and told the jury that
which he had told to the court in his pre-trial affidavit: his belief
that he was working for people connected with the government's covert
arms for hostage deal with Iran. Durrani also sought to introduce
portions of the Tower Commission Report which outlined the government's
covert operation and the two North memoranda, discussed above, which,
along with the CIA lists, provided strong corroboration that he was
approached to supply parts requested by Iran but initially unavailable
to those responsible for the government's operation. The court,
however, thwarted this vital effort at substantiating his testimony by
ruling that the Tower Commission Report and the North memoranda were
untrustworthy and inadmissible. (A.92) 11
Durrani described the international community of arms dealers
as a handful of people all known to one another; those in the community
sooner or later learn of every movement of weapons in the Western
world. As part of this community, Durrani learned of the shipment of
arms to Iran by Israel and the United States in 1985 and 1986.
(T.3/24/87, 27, 29)
10According to Carnahan, there was no record of any registration or
export license application, or export license issued during the period
of October, 1981 through February, 1987 for a host of individuals and
companies including Durrani, Pires, de Greef, CAD Transportation,
Comexas, and Jet Stream. (T.3/19/87, 148-149) However, Carnahan also
explained that the Department of State does not license "foreign
military sales;" that is handled by the Department of Defense.
(T.3/19/87, 124)
11The proffered portions of the Tower Commission Report are included in
the appendix. Two editions of the report were before the court; the
version included in the appendix, from the New York Times Edition, is
paginated differently from the version referred to in the court's
ruling.
 Durrani was familiar with several Iranian officials involved
with the procurement of arms for the government of Iran. Through Merex
associate Ahmed Shams, an Iranian, Durrani became socially acquainted
with Rahim Malekzedeh, the Chief of Logistics and "number 2" man in the
Iranian Revolutionary Guard. In the autumn of 1985, Malekzedeh
informed Durrani about Israeli shipments of arms to Iran, and about
American overtures to Iran through Japan and other countries.
(T.3/24/87, 44-47, 210) Later Malekzedeh told Durrani that Iran was
dealing with a number of Americans and Israelis, including Oliver
North, George Cave and Amiram Nir. (T. 3/24/87, 218)
In late 1985, through Shiraz Dewji, an employee with a
subsidiary of Varian Corporation in Switzerland, Durrani learned about
two shipments of tubes -- the VA-145-E (known as the "heart" of the
Hawk missile system) -- by Major General Richard Secord from the
United States to West Germany and Sweden, through Portugal and,
ultimately to Iran. (T.3/24/87, 32-38; 3/25/87, 172)
As corroborated by Merex phone records, Durrani was in
Portugal in April, 1986. While in Lisbon, Durrani met with George
Hassan, a former Iranian Secret Service Agent with ties to Israel.
Hassan was working with Secord and Albert Hakim coordinating the
American. shipment of parts to Iran. Hassan, who wanted Durrani to
vouch for Secord and Hakim with Malekzedeh, showed Durrani three leased
aircraft loaded with Sidewinder missiles parked on the tarmac at
U.S./NATO air bases in Lisbon. (T.3/24/87, 40-44, 49, 50, 218)
Also while in Lisbon, Durrani was told by an Israeli Air
Force Officer that Manual Pires was looking for Hawk parts. Durrani
knew that Pires was one of two individuals licensed to export arms from
Portugal. Since Durrani also had learned from Hassan that Pires was a
 supplier of small arms and ammunition to Secord, he deduced that the
United States was shipping the goods to Iran through Pires. (T.3/24/87,
48-50, 238) Durrani tried unsuccessfully to reach Pires at his office
in Lisbon, but he was not in. Thereafter, he received a call from
Willy de.Greef, who arranged a meeting in Geneva on April 23.
(T.3/24/87, 50-52)
At the Geneva meeting were not only Durrani, Pires and de
Greef, but also a Mr. Hussein, an Iranian official responsible for
Iran's Hawk missile system. Durrani was asked generally about the
kinds of parts he could supply and specifically whether he could supply
Hawk parts included on a list given to the United States by Iran.
Durrani agreed to locate whatever parts he could. He was given the
phone number of a "Mr. Korser" and instructed to call him in Washington
D.C. to arrange to obtain the list. (T.3/24/87, 52-57)
Durrani was also told that if there was a procurement, the
shipping arrangements would be taken care of. According to Pires,
though the parts would actually be going to Israel and then to Iran,
any end user certificates would show that the parts were going to
Jordan and would be obtained with the assistance of the Government of
Jordan. (T.3/24/87, 58-59)
Durrani returned to the United States and, as instructed,
arranged the meeting to obtain the list of parts. Thereafter, he
determined that Radio Research possessed some of the parts and went to
them with the list the first week of May. The list of parts Durrani
submitted to Radio Research (GX 6) was identical to the list of parts
given to CIA agent George Cave by the Iranians in Paris on March 7,
1986; while typed on different typewriters, both lists included the
identical 240 parts and misspellings or missing portions were the same
 on both. (T.3/24/87, 63-66, 71-72; 3/26/87, 28-29; DX 609-C) 12
Durrani forwarded to de Greef and Pires in Brussels the
information he received from Radio Research. De Greef and Pires
indicated which items they were interested in and which prices were too
high. Durrani made it clear to Pires and de Greef that he would
arrange for the purchase of parts and inspect them, but would not be
responsible for obtaining any licenses. They again assured him that
they had arrangements to obtain export licenses from Jordan. Based on
this, Durrani placed his orders with Radio Research.
By the end of August, Durrani was under increasing pressure
from Pires and de Greef to obtain the parts at any cost and increasing
pressure from Radio Research to obtain an export license. Based on the
assurances of Pires that export licenses would be provided, Durrani
agreed to sign whatever statement Doyle prepared and arranged to have
Pires with him at the airport when the statement was delivered by
Spreeuwenberg of Jet Stream. At the airport, he was told that
Spreeuwenberg had obtained the license and had been obligated to pay
$10,000 for it. Durrani agreed to reimburse Jet Stream for the expense
on Pires' behalf. (T.3/24/87, 86-92)
In September, Pires made clear what Durrani had previously
only deduced: Pires related that he was working with people,
particularly Secord, who were working on behalf of the United States.
He explained that the man identified as "Korser" from whom Durrani had
12At the end of May, Durrani met with Malekzedeh in Brussels and
learned about a trip to Tehran by various officials of the United
States and a shipment of arms. Malekzedeh showed Durrani a copy of the
packing list that accompanied the first American shipment. (A copy of
the packing list, obtained from the CIA, was introduced into evidence.
(DX 609-B)) (T.3/24/87, 71-72; 3/25/87, 187, 214)
 obtained the list of parts was with the NSC. (T.3/24/87, 216, 237-40)
Exhorting Durrani that the delivery was urgent, Pires pressed
Durrani for the parts that were not available with the August shipment.
He informed Durrani that the United States was planning to deliver
parts to the Iranian delegation in Frankfurt in early October and,
therefore, delivery to Brussels had to be confirmed for October 3.
order to reassure the Americans that the'parts would be delivered,
Pires urged Durrani to meet with an American official in London in late
September. (T. 3/24/87, 96, 243, 251)
Durrani went to London and was summoned to the Hilton Hotel
by a man using a code name but who.Durrani subsequently identified as
Oliver North. Durrani explained the reasons for the delay and assured
North that the parts would be available as soon as Durrani returned to
the United States. When Durrani mentioned that part of the delay was
attributable to the supplier's insistence on an export license, North
told him not to worry about it, just deliver the parts to New York. (T.
3/24/87, 101, 244, 248)13
Rebuttal
There were essentially three parts to the government's
rebuttal case: an attempt to negate, through absence of record
evidence, defendant's assertion that he was working indirectly on
13Durrani's testimony concerning his relationship with de Greef and
Pires and his understanding about their relationship with Secord and
the United States Government was admittedly at odds with two prior
statements: his post-arrest statement that the licenses were in
California, as well as a submission of his attorney to the Court, made
in connection with an appeal from the detention order, that Durrani
believed the goods were to be forwarded to Jordan. Durrani explained
that he made the first statement because he was frightened. He did not
tell "the whole truth" to his lawyer because he thought he could get
out on bail and resolve the matter with Pires and the people at the NSC
(T.3/24/87, 61-62, 102; 3/25/87, 74-76, 157-61)
 behalf of the United States government; an effort to impeach
defendant's credibility, mainly about the nature of his business with
bank records;14 and, the introduction of so-called "similar act"
evidence designed to rebut defendant's contentions that he believed he
was working on behalf of the government and/or was not responsible for
obtaining the necessary licenses.15 (The government also sought to
elicit the testimony of Manual Pires. However, after it had made all
the necessary arrangements to take his mid-trial foreign deposition?
Pires balked and refused to cooperate.)
To rebut Durrani's claim that he actually met with Oliver
North in London, the government presented the testimony of an English
Customs Officer who had been asked to search various London hotel
records for a period in late September, 1986. While he found
registration records for Durrani and Pires, he found no such record at
the Hilton Hotel under the names of North, White or Goode, aliases
14The introduction of the bank records was part of the government's
relentless effort to prejudice the defendant by revealing to the jury
that he had structured certain financial transactions in a way to
conceal assets from his wife in anticipation of a divorce. (T.
3/24/87, 190-195; 3/26/87, 59, 164; 4/1/87, 14) The trial court
correctly precluded the prosecution from introducing evidence'of his
extra-marital relationship, and the bank records ultimately proved
little more than that Durrani was paid by Pires and had access to Swiss
bank accounts in his mother's name.
15Over objection, Nathan Newbern, the president and owner of Imperial
Tool and Manufacturing Machine Shop in Fort Worth, testified about a
sale to Durrani of Bell military helicopter parts which Durrani said
were destined for Turkey. (T.3/26/87, 81-154) Some of the parts were
consolidated by Jet Stream with the unlicensed August shipment from
Radio Research and, though Durrani had'represented himself to Newbern
as Chairman of Merex, were also invoiced from CAD Transport to Kram,
Ltd. (T.3/18/87, 181-90; 3/26/87, 112) Evidence was also introduced to
show that these parts were on the U.S. Munitions List. (T.4/1/87, 34-
40, 153) Durrani testified that he understood that the parts were for
helicopters privately owned by Pires and de Greef in Malta and that he
did not think that an export license was required. (T.4/1/87, 213-14)
 attributed to North during the trial. (T. 4/1/87, 77-79)
In addition, Michael Sneddon, an accounting and budget
analyst for the NSC responsible for processing the Council's travel
documents, testified that there were no travel records for travel by
North to London between September 28 and October 2, 1986. (T.4/1/87,
109-10) Sneddon explained, however, that if North financed his trip
outside the NSC, there would be no NSC travel records to reflect it,
and admitted that he made no effort to ascertain North's whereabouts on
these particular days. (T.4/1/87, 118-21) Moreover, though the court
precluded defendant from inquiring of Sneddon whether North and
Poindexter talked to him about covert operations (T.4/1/87, 114),
Sneddon confessed that prior to November 1, 1986, he had no knowledge
of North's trip to Tehran in May of that year. (T. 4/1/87, 112-114,
123) 16 Sneddon also testified that there was no record of a "Jack
Korser" working with the NSC. (T.4/l/87, 110)
To prove that defendant's activities did not fall within the
statutory exception of 22 U.S.C. section 2778 (b)(2), the government
also relied on the testimony of Charles Moyer, Senior Records
Management Officer of the CIA's Directorate of Administration. Over
repeated hearsay objections, Moyer was permitted to testify, based on
his examination of unspecified records maintained by the CIA's Office
of Logistics/Administration, that the Office of Logistics had
responsibility for obtaining the Hawk missile parts sold to Iran and
16North's trip to Tehran in May of 1986 -- along with Robert McFarlane
and others-- has been widely reported. See, e.g., The Tower Commission
Report, Appendix B "The Iran/Contra Affair: A Narrative," VII.
"Hostages and Iran Pursued: March- May 1986," D. "Tehran: May 25-28,
1986." It was acknowledged at trial by a senior record keeper from the
CIA called as a witness for the government. (T.4/1/87, 167)
 delivered in May and August of 1986.17 Moyer testified that the CIA
did not make any effort to obtain Hawk parts after May and did not
participate in any further shipments of Hawk missile parts after the
delivery in August. (T. 4/1/87, 124-34, 147, 158) 18
On cross-examination, Moyer explained that he only searched
for records relating to the actual acquisition of parts by the CIA. He
did not check for documents by CIA officials relating to the need to
acquire additional parts, or the location of parts that were on the
Iranian list but were not included in the May shipment to Israel.
(T.4/1/87, 161-63, 168, 182, 187) 19
Moreover, the records Moyer did search showed only the parts
that the CIA bought and paid for;'Moyer explained that CIA records
17According to Moyer, the packing list (DX 609-B) for the Hawk missile
parts shipped in May and August was generated by the Office of
Logistics. All the items on the list were obtained by the CIA from the
Department of Defense through established procedures and no effort was
made to obtain any parts from a non-Department of Defense Source. All
left the United States by May and were delivered to Iran in May and
August of 1986. Moyer candidly admitted that he had no knowledge as
to where the Department of Defense obtained the parts that the CIA
requisitioned; he assumed "from a supplier." (T.4/1/87, 127-30)
18 In addition, Moyer testified that Office of.Logistics records would
reflect whether the CIA attempted to obtain any of these parts from any
sources outside of the Department of Defense. According to Moyer,
searches of records conducted by him and by persons whom he supervised
and interviewed did not uncover a record of an effort by the CIA to
obtain parts included in the May and August shipments from a number of
individuals and entities including Durrani, Pires, de Greef, George
Hassan, Richard Secord, Albert Hakim, Jack Korser, CAD Transportation,
Merex, and Kram, Ltd. (T.4/1/87, 132-37) Moyer also testified that,
with the exception of Secord and Hakim, there was no record of any of
these individuals or entities being employed by or associated with the
CIA. (T.4/1/87, 137-44)
19The court precluded defense counsel from eliciting testimony about
the existence of one such document, written by CIA Director William
Casey in July of 1986, concerning the need to acquire additional parts
that was turned over to the Tower Commission. (T.4/1/87, 187-88)
(A.91C-E)
 would not reflect activities on behalf of the NSC unless the CIA
participated in such activity. Thus, if, for example, Manual Pires was
involved in the purchase of Hawk parts, CIA logistics records would not
reflect this unless the CIA paid for the parts. (T.4/1/87, 170-71)
Similarly, the CIA would not necessarily record all contacts made by
persons associated with the agency. For example, Moyer confessed, the
absence of a record of George Hassan is not evidence that he was not
working with Secord or Hakim. (T.4/1/87, 186) Furthermore, there would
be no record of attempts to purchase parts unless that attempt was
"normal enough to be committed to paper, ...[i]f we put out a
solicitation for bid for Hawk missile parts that would be in the file."
Moyer agreed that the sale to Iran was not one "put out...for bid."
(T.4/1/87, 171=73)
Moyer conceded that the CIA was unable to obtain all the
parts it was looking for from the Department of Defense, that the arms
for hostage deal with Iran was unique, and that if the CIA needed
something, it would probably obtain it from whatever source it could..
(T.4/1/87, 173, 175-77) 20
20However, he insisted that, nevertheless, any procurement of parts by
the CIA would follow normal CIA procurement procedures and would be
accomplished through and fully documented by the Office of Logistics.
(T.4/1/87, 173-75, 180) Defense counsel's effort to discredit this
assertion by reference to the use of Secord and Hakim to divert arms to
the Nicaraguan Contras was thwarted by the court. (T.4/l/87, 181)
Moyer did admit, though, that the Office of Logistics would have
records of CIA procurements only if its agents complied with federal
record-keeping regulations. (T.4/1/87, 190)
 UNITED STATES DISTRICT fp~TRT
DISTRICT OF CONNECTICUT V
l
32 P~; ~~~
8R1ACS `
-
i-0UR7
.
UNITED STATES OF AMZRICAI
ARIF DURRAII,
Plaintiff
Defendant.
CRIB aa~~=(TFGD )
AFFIDAVIT OF ARIF DURRANI
.14 STATE OF CONNECTICUT )
as. New Haven, Connecticut
COUNT? OF NEW HAVEN )
The undersigned, Arif Durrani, being duly sworn deposes and says
1. I am of legal age and believe in the obligation of an oath.
2. I am the defendant in the above-captioned action. I make
this affidavit in support of my Motion to Dismiss and my Motion to
Refer to the State Department. ?
3. I make this affidavit based upon personal knowledge and/or
information and belief, based on a combination of personal knowledge
and items reported in the press.
4. I believe, although I was not directly hired by the United
State's government., that tha work 3 was doing to help procure spare
parts for Havk missiles,, for shipment to Iran, was initially at
the instance of the government of the United States, and that
prosecution of me under these circumstances is not justified, as
 others in the government who have been responsible for shipping arms
to Iran without licenses are not being prosecuted, and that the
'government has no intention of prosecuting said people (except for
possible embezzlements from the proceeds of said sales, for the
purpose of illegally arming rebels in Nicaragua).
5. I am aware of a number of people who I understand have been
actively working with the government, or one of its agencies, such as
the Central Intelligence Agency or the National Security Council in
Europe, for the purpose of moving arms to Iran. Among those
individuals are Manuel Pires, of Lisbon, and Willy de Grief, of
Brussels. Those are the individuals who asked as to find the Hawk
missile parts that I am charged with exporting.
6. Another man, George Hassan, who in 'lives Lisbon, Portugal,
and is connected with the CIA, also had been working to facilitate
shipment of arms to Iran. Hassan was originally Chief of Police in
Tehran, and had free access in and out of Iran, acting on behalf of
the CIA to effect arms sales to that country.
7. At the time Pires and de Grief asked me to obtain the Hawk
missile parts, I knew that the government of the United States was
moving large quantities of arms to Iran through various entities and
individuals. Richard Secord and Albert Hakim of Sanford Technology
in San Jose, California, were among those shipping arms to Iran with
government approval. I was,informed by officers of Varian Associates
21
 that the CIA had ordered them to ship radar tubes (number VA-145E) to
Iran. Staford Technology shipped tubes to Iran for $250,000 each,
and the money was deposited into Secord's account at Credit Suisse,
Geneva, by the government of Iran.
8. Se~cord made other shipments to Iran directly from stocks at
telly Air Force Base, San Antonio, Texas, including entire TOW
missiles. A divisible, transferable letter of credit was issued by
Sedrat Ban__, an Iranian bank based in Frankfurt, to cover the shipment
of tLe. TOW missiles. The amount of the letter of credit was Forty
,a
(Million (;40,000,000.00) Dollars, and it was issued to Credit Suisse,.
Geneva. The letter was negotiated by Advance Technology, Inc., 725
Market Street, Wilmington, Delaware, an entity cooperating with the
CIA and Hassan. I was shown a copy of this letter of credit by George
Hassan in Lisbon, a contact of.Hakim and Secord, who is a former SAVAr
agent and CIA operative, who also has ties to the Israeli Mossad.
Hassan offered to introduce me to officials of the CIA who arranged
the deal.
9. Once when I met with Hassan in Lisbon in 1986, he showed me
an, airplane belonging to ArrowSdir an American company, at air force
base in Lisbon. The plane was a Boeing 707. There were 200 AIM-9P inc
100 AIM-9B Sidewinder missiles.on the plane, which were being taken
out of NATO and Portuguese military stocks for shipment to Iran at
prices of $55,000.00 and $45,000.00 respectively.
 10. While I was in Lisbon at that time, Pires approached me to
inquire about obtaining the Hawk missile parts that I am charged with
exporting illegally. Pires is a weapons supplier for,Secord for thie
Contra rebels in Nicaraugua. Pires and Secord regularly use companies
called Defex (Defense Export) and Energy Resources International to
ship such weapons.
il. Pires told me that certain parts were seeded to complete
deals that had already been concluded between the United States
.agovernment and the government of Iran. I agreed to help him locate
the particular parts as a favor to his, and I was told that I would be
given a list of parts needed upon my return to the United States.
12. Shortly after my return to the United States, I met an
individual at Washington National Airport who called himself Jack
Loser. He provided me with the list of the required Hawk missile
parts. I believed and have since been able to confirm that the man
who called himself Loser worked for the National Security Council.
13. I approached Radio Research, Inc., of Danbury, with the
list. Radio Research is a small dealer of surplus parts that it buys
from the United States military for scrap. It then sells the parts as
what it calls' reconditioned. material. Radio Research promised that it
could quickly supply the parts, but they stalled and lied to we when I
inquired as to their status.
23
 14. At the same time, Pires, on his own and through de Grief,
constantly pressured me to obtain the parts. While I was travelling
in the Far East on other business in September, I was urgently
requested by Pires to return to Lisbon, which*I did. Upon arrival in
Lisbon, I met with an individual who was said to be a staff member of
the NSC. I was told at that meeting for the first time of the urgency
in obtaining the pats, which I was told were part of a package for
freeing Aaerican hostalres being held in Lebanon. Pursuant to that
request, I immediately returned to the United States and again asked
Radio Research to expedite delivery, but it continued to stall.
15. I was,then requested to fly to London by Pires. I did no,
where I met with individuals who identified themselves as United
States officials. One individual, who identified himself as "Mr.
White," I have come to believe was Lt. Col. Oliver North of the NSC.
I had met Mr. White two other times. Others at the meeting included a
representative of the Anglican Church. At that meeting, the American
officials urged me to quickly obtain the parts. I told them that
Radio Research was delaying the shipment for lack of licenses.
American officials made numerous telephone calls that night from
London, and the next day, October 2, I was told that President Ricgan
would sign orders the next day to authorize shipments of arms to Iran.
I was told by Mr. White not to worry about the paper work.
24
 16. I have come to learn that on October 3 the President did
execute such an order, and that he .sent a message to Iran saying he
would honor the American commitments to ship arms in exchange for the
hostages.
17. I returned to the United States from London on October 2,
and had intended to fly to Washington after confirming that Radio
Research had shipped the parts to Jetstream Freight Services, as
instructed to Pires. I was to inform loser that the parts were
shipped to Jetstream, and I understood that I would have no further
involvement with the parts after that point. I knew that the shipment
was so small that the government would not ship them in a separate
airplane, which was normal practice.
18. It is my understanding that the arms. shipments made by the
United States government to Iran were made to the National Iranian Oil
Company, generally shipped in individual airplanes in boxes labelled
"oil drilling equipment," those being the arrangements set by the
United States government.
19. I have had numerous other contacts with Pires and de Grief,
who now works for Pires, and bglieve that they regularly cooperate
with the United States government, Secord, and other former government
officials. Mr. de Grief was previously employed by Medhi Heshemi
Rafsanjani, to wiom the CIA shipped parts through International Air
Tours of Nigeria, Ltd. The shipments.all? went through Brussels, and I
25
 learned they were ?
part of an effort to obtain the release of hostage
William Buckley. When Medhi fled Belgium with Six Million
($6,000,000.00) Dollars in cash he pocketed from the deal, de Grief
was left without a job, until Pires hired him and he continued to work
in Brussels as usual.
20. I know, and knew that Pires had very substantial prior
dealings with both the gover'meat of the United States, and with the
North Atlantic Treaty Organization, when he contacted me about these
parts. I understood that my mission was to attempt to obtain various
spare parts for Hawk missiles, to replace parts which had been shipped
by Israel, at the instance of the United States government for
shipment to Iran. Many of those Israeli-shipped parts had been
rejected by Iran as defective, and replacements were necessary.
21. I was told, both orally and in writing, by Pires and his
companies in Portugal and Belgium that the obtaining of necessary
licenses would not be my responsibility, and I had every reason to
believe (since I knew the government of the United States was largely
behind the shipments of arms to Iran) that Pires, through his contacts
with the United States, would ptand behind that representation.
22. It 'seems clear to .se that the Custc.ma Service agents
investigating this case and the federal prosecutors here were unaware
of the government's progra,n of arms shipments to Iran when I.was
arrested. I believe the above information justifies dismissal of this
 case and/or referral of the matter to the United States-Department of
State for advice to the court.
Dated'thisday of February, 1987 at New Haven, Connecticut.
Subscribed and sworn to before me
ARIF DukRAAIT
this Aday of February,
27
1987.