Cases Against Arms Dealers Jeopardized

Federal prosecutions of Iranian arms cases may be damaged by the covert White House weapons shipments to Iran, according to interviews with judges, prosecutors, federal agents and legal scholars.

Across the country defense lawyers have mounted an assault on scores of pending and past arms cases, filing growing numbers of appeals for new trials, dismissals of charges or reductions of bail or prison sentences. They cite one common argument: If the government ships arms to Iran, how can it jail citizens for doing the same?

While federal prosecutors uniformly insist, at least publicly, that they intend to aggressively pursue all arms export violations, some privately concede that they fear juries will be reluctant to convict in light of recent White House disclosures.

“It complicates things when you have to ask a jury to send a guy to jail knowing that his own government did something that they may think is only technically different,” one prosecutor conceded.

Furthermore, a Los Angeles federal judge told The Times on Wednesday that he “may well have imposed a significantly lighter sentence” had he known about the secret White House operation when he sent a convicted arms dealer to prison for a year.

The judge said that harsh penalties are intended to act as a deterrent to illegal sales, but the White House venture into arms dealings with Iran has “shot down” that rationale.

In the past two years, federal prosecutions of Iranian arms export cases had stepped up markedly in the wake of the attempts of Iranian agents to procure billions of dollars worth of U.S. weapons and equipment for use in the war against Iraq. The campaign to close that pipeline could be unhinged if the arms scandal undercuts prosecutors.

‘Sex Appeal’ Seen Lost

“The only way I’d take another arms case is if my suspect was dealing with another prohibited country like North Korea or Libya--they still hate Libya,” said a federal agent who has worked on illegal arms cases involving Iran. He said much of the “sex appeal” of Iran arms cases is lost if cases can’t be won in court.

One frustrated assistant U.S. attorney, who has won convictions on arms export violations, facetiously requested permission from a Reagan-appointed superior to seek an indictment of the President. “He (the Reagan-appointee) wasn’t amused,” said a witness to the exchange.

East Coast-based undercover customs agents say that they expect future Iran-related arms conspiracy cases to be “much tougher to make.”

“We know everyone’s going to be looking at the next couple of cases under microscopes,” one agent shrugged.

But William Fahey, assistant U.S. attorney in Los Angeles, disputes that concern.

“The mere fact that some arms were shipped to Iran through the National Security Council . . . doesn’t give carte blanche to others to violate the law,” he said.

Authorization Key

“There’s a difference between arms shipments motivated by greed and cases where some arms may have been allowed out of the country to further some aim of our foreign policy. We’re going to keep on prosecuting people who aren’t authorized to ship arms,” Fahey insisted.

And Stanley A. Twardy, U.S. attorney in Connecticut, said selection of an independent counsel in the arms scandal “reaffirms that one cannot violate the law without facing possible prosecution, no matter at what level” of the government. He also predicted that the independent probe will “go a long way to minimize” any jury reticence to convict illegal arms dealers.

Legal scholars are less sanguine.

“I frankly can’t see a jury convicting these people,” said Herman Schwartz, a professor of constitutional law and criminal procedure at American University in Washington, D. C.

‘Do as I Say. . . . ‘

“The government can argue that just because a policeman beats up someone, that doesn’t give anyone else the right to beat up someone. But what’s different in this case is that it’s not inherently immoral to sell arms to Iran. It’s only wrong because the government said it was wrong,” Schwartz said, comparing the government’s conflicting positions to the parent who tells a child to “do as I say, not as I do.”

“That’s a dangerous concept for a democracy,” he said.

The clash of legal arguments and appeals arising from the White House arms scandal already is under way in a number of courts. For example:

--In New Haven, Conn., where a wealthy Pakistani national was denied bail pending trial on charges that he shipped $22,000 in radar parts to Iran, defense lawyers are challenging his pretrial imprisonment with claims that $30 million in White House-linked arms shipments to Iran make the accused smuggler “look like an ant” by comparison.

Security Threat Argued

When he had ordered the Pakistani, Arif Duranni of Westlake Village, Calif., held without bail, a federal judge noted that the offense was serious because it “posed a threat to our national security.” Defense lawyers argue that, in light of White House conduct, such a threat could not have existed.

--In Buffalo, N.Y., where an Austrian businessman has begun serving a 3 1/2-year sentence for conspiring to sell American helicopters to Iran, pending defense appeals contend jurors were misled by trial testimony that such sales were contrary to U. S. foreign policy.

“It’s quite apparent now that the U.S. policy was, in fact, to send arms,” Mark Mahoney, attorney for Heinz Golitschek, said. “The unsoundness of the government’s legal argument is now biting them on the tail.”

--In Los Angeles, the attorney of an Iranian-born Encino businessman convicted of shipping military equipment to Iran has appealed for a new trial. A hearing is scheduled for Monday.

Attorney Donald B. Marks argues that Hassan Kangarloo did not put national security at risk, as was charged, because “Ronald Reagan (was) shipping the (same) stuff” that his client was convicted of shipping.

But the first clear test of the Iran scandal’s impact on criminal arms cases is likely to unfold today in New York in the case of 10 international businessmen accused of conspiring to sell $2.5 billion in weapons to Iran--among them, retired Israeli Brig. Gen. Avraham Bar-Am.

Grave Problems Foreseen

A U.S. district judge delayed the case last month to allow federal prosecutors time to reconsider whether to pursue the case in the aftermath of White House disclosures. Several federal prosecutors outside New York told The Times that they see grave difficulties in prosecuting that case.

The New York case is complicated by the fact that undercover tape recordings reveal that the accused businessmen believed--at least in the early stages of the alleged conspiracy--that they would be given specific authorization by the White House or no sale to Iran could take place.

Prosecutors at first argued that such a belief was foolishly naive or blindly ignored the truth. But that argument has not been raised since the White House arms deals were revealed.

“They’ve obviously got a serious problem in New York,” agreed a sympathetic Fahey in Los Angeles. “But I disagree that there are problems all over the country. What happened in Washington didn’t give citizens the right to go out and practice their own foreign policy by deciding where they’d ship arms.”

Times staff writer William Overend and Times researchers Doug Conner and Susanna Shuster contributed to this story.)