835 F.2d 410 (2nd Cir. 1987), 395, United States v. Durrani

Docket Nº:395, Docket 87-1256.
Citation:835 F.2d 410
Party Name:UNITED STATES of America, Appellee, v. Arif DURRANI, Defendant-Appellant.
Case Date:December 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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835 F.2d 410 (2nd Cir. 1987)

UNITED STATES of America, Appellee,

v.

Arif DURRANI, Defendant-Appellant.

No. 395, Docket 87-1256.

United States Court of Appeals, Second Circuit

December 3, 1987

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Argued Nov. 5, 1987.

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Holly B. Fitzsimmons, Asst. U.S. Atty., District of Connecticut, Bridgeport, Conn., (Stanley A. Twardy, Jr., U.S. Atty.), New Haven, Conn., for appellee.

Alan M. Dershowitz, Cambridge, Mass. (Nathan Z. Dershowitz, Victoria B. Eiger, Dershowitz & Eiger, P.C., New York City, on the brief, Jane Simkin Smith, of counsel), for defendant-appellant.

Before KAUFMAN, PIERCE and MINER, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The still simmering national scandal of high government officials engaged in the covert shipment of arms to Iran has brought to the fore intriguing questions in our criminal law. The defendant here, Arif Durrani, accused of shipping Hawk missile parts to Iran without a license, seeks refuge under the aegis of official authority. Durrani candidly admits that he sold arms to Iran, but claims to have been a cog in the wheel turned by Lt. Colonel Oliver North and Vice Admiral John Poindexter.

Durrani appeals from a judgment of conviction entered on May 13, 1987 by Chief Judge Daly of the United States District Court for the District of Connecticut. On April 2, 1987, a jury found Durrani guilty on three counts of violating the Arms Export Control Act, 22 U.S.C. Sec. 2778(c) (1982), for: 1) exporting arms without a license on August 30, 1986; 2) attempting to export arms without a license on October 3, 1986; and 3) failing to register as an arms exporter with the State Department's Office of Munitions Control. He received an aggregate sentence of 10 years imprisonment and was fined $3 million.

BACKGROUND

In early May 1986, Durrani embarked upon a series of elusive dealings with Radio Research Instrument, Inc., a supplier of surplus radar equipment headquartered in Danbury, Connecticut. Specifically, Durrani supplied Edmund Doyle, a Radio Research vice president, with a list of Hawk missile parts 1 that he hoped to purchase for export to Jordan.

By July, Durrani had placed a down payment on those parts that Radio Research could obtain for him. Unknown to Durrani, however, Radio Research harbored suspicions about his activities and notified the United States Customs Service. The Customs Service, in turn, placed Durrani under close surveillance, recording his numerous phone conversations with Doyle and videotaping his visits to the company.

On August 11th and 12th, Durrani sent Radio Research four purchase orders, requesting Hawk missile parts valued at $347,000. He instructed that the parts be labeled "RJAF, Amman, Jordan." Upon Doyle's request, Durrani captioned the purchase orders "State Department license will be obtained by the end user/buyer and will be their responsibility." Despite this written commitment, however, Durrani still had not produced the necessary licenses when, two weeks later, the first shipment was ready for delivery.

On August 22nd, Durrani visited Radio Research to press for release of the goods. But Doyle adamantly refused to ship them without first seeing the export licenses. To resolve this impasse, Durrani took personal responsibility for obtaining the licenses and offered to sign any document Doyle wished attesting to his obligation. In addition, he offered to show Doyle the original purchase orders issued by the Jordanian government and a copy of a so-called "master license" that authorized the transaction. When Doyle expressed concern that this would be an irregular procedure, Durrani insisted that the transaction was "101 percent clean" because "I do everything by the book. I know exactly what is what and what has to be done." In a compromise,

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Doyle agreed to release the parts only if Durrani certified in writing that he was responsible for obtaining the export licenses.

The following day, Durrani arranged for Doyle to telefax a license certification form directly to Jet Stream Freight Services, a New York freight forwarder Durrani had hired to handle the shipment of the missile parts. Two Jet Stream employees, Henk Spreeuwenberg and Mohammed Moosa, met Durrani and Manuel Pires, an international arms merchant, at Kennedy Airport on August 26th. In their presence, Durrani signed the following statement:

The export of Hawk Missile parts being sold to you by Radio Research require a U.S. State Department Export License prior to their export. I certify that the appropriate State Department export licenses will be obtained prior to the exportation of Hawk Missile Parts from the U.S.

He also verbally assured Spreeuwenberg that he would resolve any licensing difficulties, and alluded to "orders from Washington." Finally, Durrani produced a document which Moosa erroneously took to be an export license.

Upon receiving the signed statement and payment of the outstanding balance due on the parts, Doyle released the goods for delivery to Jet Stream. Before shipment, however, at Durrani's express instruction, Jet Stream employees obliterated the markings on the packing crates, and redirected them to Comexas Airfreight Division in Zaventem, Belgium. The shipment was accompanied by a false invoice from CAD Transportation, an instrumentality of Durrani's, to KRAM, Ltd., a Belgian company controlled by Pires. Moreover, the invoice valued the goods at under $500, rather than the $347,000 Durrani had paid for them. This permitted Durrani not to file a "Shippers Export Declaration" with the Customs Service, as required for shipments in excess of $1000. The shipment was placed on a People Express flight to Brussels, Belgium on August 30th.

Throughout September, Durrani remained in close contact with Doyle, making frequent inquiries about the price and availability of various equipment. They discussed delivery of the remaining items from Durrani's first order and the possibility of additional orders being placed. On October 1st, Durrani telephoned Doyle from London, and arranged for a second shipment of Hawk parts.

Two days later, Durrani visited Radio Research to inspect the goods before they were shipped. As he did in August, Durrani signed a statement acknowledging responsibility for obtaining the required export licenses, marked the crates for delivery to Jordan, and instructed that they be forwarded to Jet Stream for transshipment. This shipment, however, never left Radio Research. Durrani was arrested as he left the company, and the crates were seized.

Shortly thereafter, a woman identifying herself as "Mrs. Durrani" called Jet Stream and ordered that the shipment be diverted to California instead of sent to Jordan. She also requested that Jet Stream destroy all files relating to Durrani and that they deny knowledge of him or his activities. Somewhat later, Durrani himself called with similar instructions. When Spreeuwenberg informed him that Customs agents already had seized the files, Durrani responded, "I have a lot of troubles."

On October 8, 1986, Durrani was indicted for the August 30th shipment. Within a month, the first allegations of covert arms sales rocked the nation. On November 14th, he moved to dismiss the charges against him, claiming that the government was selectively prosecuting violators of the licensing provision. Durrani, however, took no action with respect to his dismissal motion until February 4, 1987, when he filed an affidavit in support of the motion. The same day, Durrani moved to disqualify Chief Judge Daly from further consideration of his case, alleging the judge was prejudiced against him. On February 18th, a superseding indictment was returned based on the October 3rd shipment and Durrani's failure to register with the State Department's Office of Munitions Control. A week later, on February 24th, Judge

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Daly denied Durrani's disqualification motion, finding no impropriety.

On February 27th, with jury selection scheduled to begin on March 3rd, appellant served the Director of the Central Intelligence Agency (CIA) with a subpoena duces tecum returnable on March 4th. He sought a broad range of documents including all those connecting him to arms exports and all those relating to CIA involvement in Iranian arms sales from 1982 to 1987. Similar subpoenas were served on the National Security Council (NSC) and the State Department on March 2nd. The government moved to quash the subpoenas. Hearings on the motion to quash were held on March 9th and 10th; on March 11th, the trial judge made a preliminary ruling quashing the subpoenas. The trial began on March 16th.

THE TRIAL

We summarize here those aspects of the trial that resulted in issues raised on appeal.

The Government's Case

Durrani was charged with violating the Arms Export Control Act, 22 U.S.C. Sec. 2778 (1979), and the accompanying International Traffic in Arms Regulations, 22 C.F.R. Sec. 120 et seq. (1987), which require the licensing of all defense material before export. Under the Act, the State Department's Office of Munitions Control compiles the United States Munitions List and issues export licenses for goods and services contained on it.

To demonstrate that the exported items appeared on the Munitions List, and thus fell within the purview of the Act, the government introduced the testimonies of Billy Boland, an electronic technician equipment specialist at the Hawk project office, U.S. Missile Command, Redstone Arsenal, and Brenda Carnahan, from the Office of Munitions Control.

Boland, an expert on Hawk missiles, testified without objection. He stated that several of the items sent to Brussels on August 29th were...

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