UNITED STATES V. ARIF DURRANI GOVERNMENT RESPONSE TO ORDER TO SHOW CAUSE ISSUED PURSUANT TO 28 U.S.C. SECTION 2255

• Document Type: FOIA
• Keywords: IRAN CONTRA
• Keywords: SCANDAL
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001474394
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 24
• Document Creation Date: June 22, 2015
• Document Release Date: January 10, 2008
• Case Number: F-2000-02383
• Publication Date: June 4, 1990

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1
UNITED STATES DISTRICT CntJRTt S. I`:
DISTRICT OF CONNECTICUT
UNITED STATES
V.
ARIF DURRANI
B-90-090(TFGD)
B-86-59 (TGFD)
June 4, 1990
GOVERNMENT RESPONSE TO ORDER TO SHOW CAUSE ISSUED PURSUANT TO
28 U.S.C. SECTION 2255
The defendant has filed a Motion for a New Trial under 28
U.S.C. Section 2255, claiming that newly-discovered or revealed
evidence proves both that his testimony at trial was truthful and
that the government withheld exculpatory evidence from him. - The
defendant also claims that the government knowingly offered per-
jured testimony at the trial, that prosecution of Durrani is
barred by the doctrine of "due process estoppel" and that. he was
selectively prosecuted.
While the defendant's claims are. absurd and totally
unsupported by the documents he provided to the Court in support
of this Motion, he raises a number of issues of fact which cannot
properly under controlling Second Circuit law be disposed of sum-
marily. See Hill v. United States, 368 U.S. 424, 426-27 (1962);
APPROVED FOR RELEASE
DATE: NOV 2007
 Johnson v. Fogg, 653 F.2d 750, 753 (2d Cir. 1981); William v.
United States, 503 F.2d 995, 998 (2d Cir. 1974); O'Neil v. United
States, 486 F.2d 1034, 1036 (2d Cir. 1973). Therefore, the
government requests that this matter be set down for a hearing at
which time the defendant will be required to produce competent
evidence (including testimony subject to cross-examination) in
support of his claims or abandon them.
Suppression of Exculpatory Evidence
Mr. Durrani claims that the government suppressed eight dif-
ferent items of exculpatory evidence. The government denies that
any exculpatory evidence was suppressed. However, because the
suppression of material exculpatory evidence would entitle the
defendant to a new trial if it created a question about the guilt
of the defendant, Brady v. Maryland, 373 U.S. 83 (1963), the
Court must hold a hearing to resolve any issues of fact concern-
ing (1)existence of the proffered evidence; (2)materiality of the
proffered evidence; (3)whether the proffered evidence was
exculpatory; (3) whether the proffered evidence was deliberately
withheld or suppressed.
 (1) Oliver North's Trip to London
Durrani claims that the government deliberately withheld at
his trial evidence that Oliver North was in fact in London
between September 28 and October 2., 1986. As in his Rule 35
Motion, Durrani reiterates his testimony at trial that Durrani
met and talked to North in London about the attempted export of
Hawk missile system parts which was the subject of his Count Two
conviction. According to Durrani's passport and hotel records,
Durrani was in London between September 28 and October 2, 1986.
At trial, Michael Sneddon, an accounting and budget analyst
for the National-Security Council, testified.that he was asked to
search the NSC travel records
(1) "to determine whether Lieutenant Colonel Oliver North was
traveling in Lisbon, Portugal on September 12, 1986"; and
(2) "to determine whether Lieutenant Colonel Oliver North was
traveling in London, England between September 28 and October 2,
1986."
The results of his search were that Colonel North "was not
traveling on September 12th, 1986" and that "Colonel North was
not traveling in London between September 28th and October 2nd,"
either under his own name or under the alias William P. Goode.
(4/1/87 Tr. 109-110) Sneddon did say there were other travel
arrangements for North in September and October, 1986. (4/1/87
 -4-
Sneddon also testified that "
"if [North] did not go through our Executive Secretary, if he
did not go through Admiral Poindexter, then the travel would not
have been reflected as official NSC travel. Any official NSC
travel would go through my office, whether --.whatever type of
activity it is." (4/1/87 Tr. 121-122)1
Durrani bases his latest claim that the government suppressed
information about North's travels on a stipulation he claims was
filed at the trial of Oliver North (Exhibit C) which referred to
a London trip in September, 1986. Paragraph 106 of the stipula-
tion proffered by Durrani states, "In late September 1986, LtCol
North reported to Admiral Poindexter on his London meeting with
Noriega." Paragraph 101 of that same document states, "In mid-
September 1986, LtCol North notified Admiral Poindexter that
Noriega wanted to meet with him in London within a few days." By
inference at least, this meeting in London with Noriega took
place between mid-September and late September. Certainly, this
1 Sneddon testified that he was not asked to search records
from May 1986 to determine whether North traveled to Teheran and
did not do so. "Off the top of my head I honestly don't know if I
cut orders for him for Iran," he said. (4/1/87 Tr. 112, 123)
 document fails to provide any support for a claim that Sneddon's
testimony was inaccurate, let alone perjurious. Nor does it
establish that North was in London on the operative dates of Sep-
tember 28 through October 2, 1986, still less support Durrani's
claim that North met there with Durrani.
However, since Mr. Durrani filed his 2255 Motion, substantial
portions of Oliver North's diaries have been released under the
Freedom of Information Act. These documents do not appear to sup-
port Mr. Durrani's claims either, but Mr. Durrani should be given
an opportunity to raise any claims that they do (or to withdraw
this claim in light of the information in the diaries). If Oliver
North were in London between September 28 and October 2, 1986,
whether or not Michael Sneddon knew about it, that information
would have arguably supported Durrani's defense claims. Durrani
should therefore be given every opportunity to produce any wit-
ness or document he can to establish this underlying fact. If the
fact is established (the government still knows of no support for
this claim), then the Court would have to determine whether the
 fact was knowingly withheld from Mr. Durrani, or whether the
prosecution knowingly put forward perjured testimony from Michael
Sneddon on this subject. Alternatively, even if the Court found
the information was not knowingly suppressed, conceivably it
could support a new trial motion as newly-discovered evidence.
(2) CIA Procurement of Hawk Parts
At Durrani's trial, Charles Moyer, senior records management
officer for the Directorate of Administration, Central
Intelligence Agency, testified (4/1/87 Tr. 124-144) that it was
the responsibility of the CIA's Office of Logistics "to obtain
the parts" sold by the U.S. government to Iran in May and August
of 1986, and that the Office of Logistics did obtain all the Hawk
missile system parts shipped to Iran by the U.S. government from
the Department of Defense. He said that no attempts were made by
the CIA to obtain the parts from non-Department of Defense
sources, and that no parts were obtained and no efforts to obtain
parts were made from Arif Durrani, CAD Transportation, Merex,
 Manuel Pires, Willy deGreef, Risenvest, Rutland, Kram, LTD,
Advanced Tehcnology, Inc., George Hassan, Richard Secord, Albert
Hakim, Jack Korser, Varian Associates. He also said that none of
the parts were shipped through Belgium.
Moyer also testified that the Directorate of Administration
was responsible for the records of persons employed by or associ-
ated with the Central Intelligence Agency, including staff and
contract employees. He testified that the CIA had no records of
any association with Durrani, Pires, deGreef, George Hassan, Jack
Korser, Risenvest, Rutland, Kram, Merex, CAD Transportation,
Advanced Technology, or Radio Research. He did find records of a
contract association with both Richard Secord and Albert Hakim,
but the records reflected no involvement by Secord and Hakim in
obtaining Hawk missile system parts for shipment by our
government to Iran.2
2 Further, Moyer was asked if in his search he attempted to
find any memoranda between the NSC and CIA concerning strategy
about continued shipments of Hawk parts to Iran. He said his
search did not involve such memoranda because he did not consider
it responsive to the search request. Asked whether he came across
a memorandum from CIA Director Casey in late July, 1986, concern-
ing further attempts after May to obtain Hawk parts in return for
 Durrani claims in the 2255 Motion that the government
deliberately withheld from him evidence that the CIA was using
Forways Industries to procure Hawk missile parts on the secondary
market. He believes disclosure of the material would have but-
tressed his claim that he was asked by CIA operatives to procure
Hawk missile parts on the secondary market.
Again, the document Durrani
allegation, Exhibit E, does not
says the prosecution of Forways
continued to export covertly on
document he provides
year after Durrani's
gest any involvement
proffers in support of this
support the allegation. Durrani
was dismissed because Forways
behalf of the government. The
an indictment (returned on May 26,1988,
conviction) which does not on its face sug-
of Forways in obtaining the Hawk missile
hostages, he responded, "I can't testify that it exists. I don't
know." (4/1/87 Tr. 187-188) While there was no affirmative evi-
dence introduced at trial to prove the existence or contents of
such a memorandum, a document Durrani may be referring to was
apparently shown to the Court for its in camera review in
response to the defendant's trial subpoenae served on the CIA and
NSC. The Court did not find that document disclosable to the
defense. See "Suppression of the Casey Memorandum," infra.
 system parts shipped to Iran as part of the Iran-Contra affair,
let alone establish that the case was dismissed or the reasons
for any such dismissal. The earliest alleged overt act in the
conspiracy is December 22, 1986, well after the arms-for-hostages
exports. In fact, the Forways case and other related matters were
previously called to the attention of the Court in connection
with the Rule 35 Motion.3
3 In Exhibit 1 to the Government's Memorandum re Disposition of
Other Iran Export Cases, these cases were described as follows:
U.S. v. Juergen Zimmermann, et al., indicted 11/14/86, S.D.Cal.
Export of military avionics (aircraft navigational systems)
to Iran in 1986. Both defendants pled guilty 12/9/86 to 2778 and
bribery of public official and agreed to cooperate. Defendant
Bernd Pleuger has cooperated extensively, resulting in indictment
of two companies and seven individuals; he was sentenced 1/17/89
to five years' probation. Defendant Zimmerman failed to cooperate
and failed to appear for sentencing; he has been located.in West
Germany.
Subsequent indictments: U.S. v. Forway Industries, et al.,
indicted 5/26/88; U.S. v. Marsh Aviation Co., Inc. and Floyd D.
Stilwell, indicted 4/8/88, and U.S. v. Hans Schneider and Beech-
craft West Germany, indicted 10/25/87, all S.D.Cal.
Conspiracy and attempt exported of military avionics (aircraft
navigation systems) to Iran in 1986 and 1987. Each corporate
defendant and individual defendant received deferred prosecution,
all admitted guilt before the court and monetary penalties were
paid ranging from $100,000 to $200,000. AUSA explained decision
to offer deferred prosecution based in part on Iran-Contra affair
but also on other problems with the cases.
 However, since the Court will be obliged to hold a hearing on
at least some of Durrani's allegations, the defendant ought to be
given an opportunity to identify any witness or documentary evi-
dence he can locate to support this claim in advance of the hear-
ing. The defendant should be limited, however, to evidence which
contradicts the testimony at trial, i.e., that the Hawk parts
shipped to Iran were procured by the CIA from the Department of
Defense, and that the CIA made no efforts to procure those parts
from Arif Durrani or from the other entities listed by Charles
Moyer.
(3) Suppression of Material from Belgium and Other Evidence of
Pires Involvement with the U.S. Government
In his Rule 35 motion, Durrani raised a claim, reiterated in
the 2255 Motion, that the prosecutor and the case agent received
information during a pretrial trip to Belgium from one Tony Van
de Meersche that Manuel Pires told Van de Meersche he was working
for the U.S. government. Durrani claims this to be evidence that
 Manuel Pires was "requested and authorized to act on behalf of
the United States, the CIA and Oliver North" in obtaining Hawk
parts as part of the Iran-Contra dealings, and that such evidence
was suppressed because it was exculpatory.
As the case agent has already sworn in an affidavit to the
Court dated Aug. 12, 1988, submitted as Exhibit 2 to the
Government's Response to the Rule 35 Motion, he and the prosecu-
tor were told the exact opposite by Van de Meersche. In addition,
Manuel Pires has told the case agent he was not working for the
U.S. government in procuring Hawk missile parts for Iran, and a
witness from the CIA testified under oath at trial that Pires had
no relationship with the Agency and was not involved with
procurement of the Hawk parts shipped to Iran as part of Iran-
Contra.
Durrani apparently bases this claim on his translation of a
portion of a document in Flemish and English called a Proces Ver-
baal which was mailed to Durrani by the Belgian government at
some time after his conviction. Assuming that the Proces Verbaal
 comports with Durrani's representations (as to which he has so
far adduced no evidence)4, the explanation may be as simple as a
mis-translation of a Flemish statement given by Van de Meersche
to Belgian customs, or a misreading by the Belgian customs
officers of a copy of Special Agent Arruda's notes of the inter-
view (in English), which he provided to them. Durrani also makes
claims about the export of Hawk parts from NATO stockpiles in
Europe, for which he has provided no support whatsoever. If there
is any support for Durrani's representations, then there is a
genuine issue of fact as to what the prosecutor and case agent
were told in Belgium, which, if resolved in Durrani's favor,
could constitute a violation of Brady v. Maryland and entitle
Durrani to a new trial. Therefore, the Court will have to resolve
this question of fact by hearing the evidence and making
credibility judgments.
Durrani proffers other documents which he claims were intro-
4 Neither Exhibit F or Exhibit G appended by Durrani to his
2255 Motion makes any mention of this claim that Pires told Van
De Meersche he was working for the U.S. Government.
 duced in evidence at the trial of United States v. Badir, Cr 86-
267-A in the Northern District of Georgia; and which he claims
prove that Manuel Pires also dealt with Oliver North and the CIA
in the shipments which were the subject of the prosecution that
case. Durrani says this information was personally known to the
prosecutor in his case and deliberately withheld from him.
The Northern District of Georgia case which Durrani refers to
as United States v. Badir was in fact titled United States v.
Elkins. Badir was a Libyan national charged as a co-defendant but
never apprehended. The case involved the illegal export to Libya
of a KC-130 tanker aircraft. Elkins was convicted and sentenced
to 15 years' imprisonment and a $6.6 million fine. The conviction
was affirmed by the Eleventh Circuit in United States v. Elkins,
885 F.2d 775 (11th Cir. 1989).
On their face, the Exhibit H documents support none of these
allegations for which they are proffered: that these documents
were offered in evidence at a trial, that the documents refer to
the Manuel Pires who bought Hawk missile parts from Durrani or to
Oliver North, that the documents link anyone to the CIA, that the
documents were known to Durrani's prosecutor at the time of his
trial. The government disputes all these assertions, which are
 contrary to the facts developed by our investigation.
If the prosecutor had knowledge of documents which estab-
lished that Manuel Pires was affiliated with the CIA at the same
time that she elicited testimony from a CIA witness that Pires
had no relationship with that agency, conceivably that could, if
found to be material, entitle Durrani to a new trial. Therefore,
Durrani should be given every opportunity to produce actual proof
of these allegations:
(1) that the prosecutor knew of these documents;
(2) that the documents refer to Manuel Pires;
(3) that the documents establish that Pires was working for the
CIA.
The documents proffered by Mr.Durrani as Exhibit H to his
2255 have been shown to the case agent in the Elkins investiga-
tion, S/A Joseph Webber of the U.S. Customs Service, who says
they were never introduced in evidence at the Elkins trial, and
that neither Oliver North nor a Manuel Pires was mentioned or
involved in the facts of that case. In interviews with the case
agent for the Durrani investigation, Manuel Pires has reiterated
that he never worked for the CIA, that he did not know Oliver
North, and that he had no dealings with or knowledge of the Lock-
 heed employee whose notes are reproduced by Mr. Durrani as
Exhibit H.
(4) Durrani's Relationship with the CIA
In Exhibit I, Durrani proffers a series of Customs documents
as proof that Durrani's company, Merex, was involved with the
CIA in importing ammunition. He claims both that these documents
were deliberately suppressed by the government because they were
exculpatory and that they constitute evidence that the CIA wit-
ness at trial committed perjury when he testified that there were
no records of any CIA association with Durrani, his company Merex
or a number of other entities.
In fact, as Mr. Durrani well knows and the government can
easily prove, the Merex referred to in the Customs documents he
proffers is a company located in Alexandria, Virginia, which is
unrelated to the Merex in California with which Mr. Durrani was
associated. The Customs documents also refer to the importation
of small arms ammunition, not the export of Hawk missile parts.
If Durrani's Merex had imported small arms into Savannah on
October 8, 1986 (for the CIA or for anyone else), he would have
known about the transaction long before he read about this matter
 in connection with the Iran-Contra affair and long before he was
provided with these documents by a Florida journalist. He would
have known about this transaction at the time of his trial, and
certainly he would have raised it earlier.
This is simply another example of the defendant's penchant
for revising his version of events to link himself to publicly-
disclosed information about the Iran-Contra affair.
(5) Placement of Bell Helicopter Parts on the Munitions List
Despite the defendant's claims, the representative of the
Office of Munitions Control, U.S. Department of State, Brenda
Carnahan, did not testify at trial concerning the placement of
Bell Helicopter parts on the Munitions List. (3/19/87 Tr. 110-
168)
As S/A Steven Arruda did testify,
"If an item such as an aircraft part has a dual use, it's used on
a 747 and it's used on a C130 military transport plane, many
times if the item has dual use, both military and commerical use,
it's not licensed by the State Department, but sometimes, many
times it's licensed by the Department of Commerce for export."
(3/16/87 Tr. 11)
This question was pursued by defense counsel on cross-
examination, eliciting the following responses from S/A Arruda:
"If an item has dual use both commerical and military it doesn't
 necessarily mean it's not on the munitions list, but many times
the Department of Commerce would be the licensing agent, sir."
(3/17/87 Tr. 12)
"In my understanding, if it's specifically designed for the mili-
tary, for the military item and it can be used somewhere else,
then it may fall on the munitions list." (3/17/87 Tr. 13)
The only trial testimony about Bell Helicopter parts was
elicited in the government's rebuttal case after extensive objec-
tion from and argument by defense counsel.(3/26/87 Tr. 65-80) The
government had a licensing determination from the State Depart-
ment placing the sleeve extensions on the Munitions List (EX. 94)
and defense counsel was well-aware of the dual use issue and
cross-examined Nathan Newbern about various helicopter models.
(3/26/87 Tr. 139-143, 152). As Newbern testified both on direct
and on redirect, his company was not an exporter of helicopter
parts but Arif Durrani told him that he would take care of get-
ting the licenses on these parts.
A subsequent witness, George W. Harvey, manager of the spare
parts department (international) of Bell Helicopters, identified
the helicopters for which the sleeve extensions exported by Mr.
Durrani were designed as military helicopters. (4/1/87 Tr. 34-
41).
Reference to the defendant's Exhibit J simply does not sup-
 port the allegations of the 2255 Motion. The Department of State
responded to a Durrani FOIA request which described the parts as
"helicopter sleeve joints and other components... used on the Bell
214 helicopter." The State Department said it was unable to find
any State Department licenses responsive to Durrani's request
(which was consistent with the government's position at trial,
that the sleeve extensions were exported without licenses) and
advised "a State Department license would not be required for the
export of the Bell Model Helicopter 214 or its spare parts unless
the helicopter is modified for military use... Commercial helicop-
ters come under Department of Commerce jurisdiction." This is
consistent with S/A Arruda's testimony.
(6) Procurement of Hawk Parts by Priv: Parties
In the course of his 2255 papers, Durrani alleges that pri-
vate parties were extensively involved in the procurement of the
Hawk parts transferred to Iran by the U.S. government. Durrani's
"newly discovered" evidence which he claims proves the involve-
ment of private parties in the Hawk procurement process consists
of chapters from the Iran-Contra committee report describing the
operations of "The Enterprise" conducted by Richard Secord and
 Albert Hakim.
On their face, these chapters do not appear to contradict the
testimony of Charles Moyer about the source and method of
procurement of the Hawk parts shipped to Iran. Moyer told the
jury that the CIA had records of association with both Secord and
Hakim (4/1/87 Tr. 141) but that no efforts were made to procure
the Hawk parts from either of them. (4/1/87 Tr. 136, 141-142)
(7) Suppression of the "Casey Memorandum"
While the prosecutor has never seen such a document, upon
information and belief something similar to Durrani's description
was apparently disclosed to the Court in March 1987 as part of
its in-camera review of the CIA's response to the defendant's
trial subpoenas. Except for one document (the parts list entered
in evidence as Def. Exhibit 609), the Court found the documents
it reviewed to be irrelevant to any claim being made in Durrani's
defense. See also note 2, infra. The defendant had an opportunity
to litigate the Court's rulings on the trial subpoenas as part of
his appeal to the Second Circuit, but did not do so.
 Subornation of Perjury
Durrani claims the government knowingly used perjured
testimony to convict him at trial. Specifically, Durrani claims
that the following government witnesses committed perjury with
the knowledge of the prosecutor:
(1) Michael Sneddon of the National Security Council;
(2) Charles Moyer of the Central Intelligence Agency;
(3) Brenda Carnahan of the Office of Munitions Control, U.S.
Department of State.
The defendant also claims that the prosecutor in summation argued
evidence to the jury that she knew to be false.
As set forth in the "Suppression of Exculpatory Evidence"
section of this Response, there is no evidence that any of these
witnesses testified inaccurately at trial, let alone any support
for the proposition that they committed perjury or that the pros-
ecutor suborned it.
Because of the seriousness of this charge, the defendant
should be required to produce competent evidence in support of
these claims at a hearing. Such a hearing should be held even
though so far the defendant has failed to produce any evidence
 -21-
entitling him to one on these grounds.
"Due Process Estoppel"
The gravamen of this claim is that Arif Durrani was induced
to procure the Hawk missile parts he illegally exported by one
Manuel 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." This is the same claim made by Durrani at trial, and
echoes the arguments discussed in Sections (1), (2), amd (3) of
the "Suppression of Exculpatory Evidence" section of this
memorandum.
If this claim were true, the export would either come within
the "official use" exception to the Arms Export Control Act or
Durrani would have a defense of apparent government authorization
which would negate the specific intent required to commit the
crimes for which he was convicted. In fact, the Court charged on
these defenses and Durrani testified about and argued both these
theories to the jury, which did not believe him. None of the evi-
dence he has produced to date suggests that the jury was wrong.
 Selective Prosecution
While Mr. Durrani describes this as a selective prosecution
claim, it is in fact a complaint about the length of his sentence
in comparison to those received by other defendants convicted of
violations of the Arms Export Control Act. This issue was fully
aired by the Court in connection with Mr. Durrani's Motion for
Reduction of Sentence pursuant to Rule 35, Federal Rules of
Criminal Procedure. Mr. Durrani's arguments were rejected. As the
government's filings demonstrated, not only was Durrani's
sentence proportionate to other sentences, but the release date
given to him by the Parole Commission calls for him to serve less
time than he would have served if sentenced under the Sentencing
Guidelines, had these crimes been committed after November 1,
1987.
The jury's rejection of Mr. Durrani's testimony and the
Court's assessment that he lied repeatedly in the course of the
Court proceedings were all based on an opportunity to observe the
defendant while he testified, and to contrast his demeanor and
credibility with that of other witnesses, who were also tested by
cross-examination. It was well within the Court's discretion to
consider the defendant's perjury in imposing sentence.
 The length of the sentence is not an appropriate issue for
resolution through a 2255 Motion.
CONCLUSION
Despite the deficiencies in the defendant's moving papers,
the government urges the Court to hold a hearing on his claims
that the government withheld exculpatory evidence and suborned
perjury in the course of his prosecution.
Respectfully submitted,
STANLEY A. TWARDY, JR.
UNITgD STATES ATTORNEY
HOLLY B. ITZSAM$ONS
ASSISTAN UNIItW STATES. ATTORNEY
915 Lafa ette Blvd.
Bridgeport, CT 06604
(203) 579-5596
 CERTIFICATION
This is to certify that a copy of the foregoing was
mailed postage prepaid this 4 * day of June, 1990, to Arif Dur-
rani, Inmate # 09027-014, P.O. Box 5000, Sheridan, Oregon 97379.