Attorney Cites Gulf War in Seeking a Delay in Mideast Smuggling Case : Judicial: Impartial jury to try client on missile and aircraft sales will be impossible to find, deputy public defender says. He wants to wait 6 months.

The Gulf War made a sortie into U.S. District Court on Wednesday when a federal public defender asked that his client’s trial on charges of planning to smuggle aircraft and missiles to the Middle East be postponed for the duration of hostilities with Iraq.

Deputy Public Defender H. Dean Steward argued in a motion that extensive media coverage of Operation Desert Storm and prejudice against Arab countries will make it impossible to pick an impartial jury to try Joseph O’Toole, 58, a retired U.S. Air Force colonel and Santa Ana aviation consultant.

“Each potential juror has been saturated with war news,” Steward said. “It is not difficult to imagine a deep, subliminal passion and prejudice in favor of the United States and against all Arab enemies in each and every potential juror.”

Steward, who heads the federal public defender’s office in Santa Ana, requested a postponement of at least six months. A hearing before a federal judge to determine whether the delay should be granted has been scheduled for Feb. 25, about 10 days before O’Toole’s trial date.

The prosecutor, Assistant U.S. Atty. Baruch Weiss, who is based in New York City, declined to comment on Steward’s request.

O’Toole, who flew more than 100 combat missions during the Vietnam War, is accused of plotting in 1989 to sell 712 Stinger antiaircraft missiles through Turkey to an undisclosed country and three Lockheed C-130E military transports to Iran for $12 million each. The transports and missiles--the sale of which is heavily controlled by the United States--were owned by the Israeli government.

The C-130 Hercules, a workhorse of the U.S. armed forces since the 1950s, has a variety of military applications, including mine laying, mid-air refueling of other aircraft and use as a heavily armed gunship. Stingers are shoulder-fired, ground-to-air missiles used by the infantry.

Two other defendants in the case, Richard St. Francis of Connecticut and Ari Ben-Menashe, an Israeli, were acquitted last year in New York City during their trials on charges related to the C-130 deal with Iran. They were not accused of trying to sell Stinger missiles.

Steward contended in court papers filed Wednesday that the chances of a similar result for O’Toole should not be interfered with by the Gulf War’s impact on the American public.

“Few jurors will be able to distinguish the Iranians from the Iraqis,” he said. “In addition, the Iranian government has been the enemy in this country for many years, and the Iranian government has been designated by the United States as a supporter of international terrorism.”

Iran, a neighbor of Iraq that held American citizens hostage after the U.S.-backed shah was deposed more than a decade ago, has been the destination of more than 100 Iraqi military aircraft and pilots during the Gulf War.

Despite Iranian assurances that the planes will be impounded, U.S. authorities say they do not know whether the pilots have defected or Iran is simply allowing Saddam Hussein to protect the cream of his air force while the allies conduct an intense bombing campaign of Iraq and Kuwait.

From the start, the case against O’Toole, St. Francis and Ben-Menashe has been filled with defense contentions that the military transport deal with Iran was part of a series of U.S.-approved deals over the years to trade arms for hostages.

During Ben-Menashe’s trial, he testified that he was an undercover operative for the Israeli government who was supposed to help arrange the sale of C-130s to the Iranians.

Weiss contended, however, that Israeli government documents show that Ben-Menashe was not an official agent and that St. Francis was informed by an undercover U.S. Customs Service agent that the C-130 sale would not be legal. St. Francis had contended that O’Toole told him that the deal was sanctioned by the United States.

Prosecutors say the proposed sale of the weapons violated the Arms Export Control Act, which provides that the State Department must approve all transfers abroad of American-made military equipment. The law prohibits the sale of such material to countries, such as Iran, that have supported acts of international terrorism.

St. Francis, O’Toole, and Ben-Menashe, allegedly middlemen in the deal, were accused of conspiring to cover up the true destination of the C-130 transports by submitting to the State Department false papers that said a Brazilian company would buy the planes.

O’Toole, a civilian and military aircraft consultant who is now working for FXC Inc., a defense contractor in Santa Ana, also is accused of attempting to sell the Stinger missiles abroad without the required State Department approval. Weiss declined to identify the Stingers’ destination.