Export Law Blog previously reported that Iran was attempting to buy parts for F-14 Tomcats in their fleet from U.S. government military surplus sales. A recent article in the San Diego Union-Tribune, which I didn’t see until this morning, provides another aspect of the story — namely, that investigations of F-14 part sales to Iran turned up four F-14s in private hands that hadn’t been properly demilitarized. Yes, that was four and, yes, that was four entire jets, not just parts.

But the story of the Tomcat jets gone wild, however amusing that might be, is not why I mention the Union-Tribune story. It’s this:

Federal officials got wind of the planes during an investigation that began with a probe of illegal arms sales to Iran by [Multicore Ltd], a Bakersfield company.

Company paperwork indicated that a former California parts dealer, Greg Forbes, had sold an F-14 canopy to Multicore, said Clark Settles, a U.S. customs agent who handled the case.

During a sting operation, Forbes agreed to get another F-14 canopy to a federal agent and obtained it from the Yanks museum, which led eventually to discovery that the four jets were improperly released by the Navy and that there was no documentation that they were properly demilitarized.

Meanwhile, the deal with Forbes fell through when he contacted the FBI to report his belief that the undercover agent was an Iranian official, court records indicated.

Forbes said he became suspicious when the agent uttered the word “Iran.”

“I said, ‘You can’t sell it to Iran. You have to have an export license,’” Forbes told the Los Angeles Times Wednesday. “Then that’s when I called the FBI and DCIS. I called Customs, even.”

The modus operandi of ICE here is interesting. They found the names of everyone who had sold anything to Multicore and then sent undercovers to try to see if they could induce them to sell parts directly to Iran. There is nothing to suggest here that the government had any reason to believe that Forbes was inclined to sell parts to Iran before ICE cooked up its sting operation.

Courts have held that the government is not required, of course, to have probable cause before initiating a sting operation. But a persuasive and definitive opinion by Judge Posner in United States v. Hollingsworth on another ICE sting operation makes clear that where the government lacks at least some prior indication that the sting victim may be interested in committing a crime, a defense of entrapment may be available:

There is no evidence that before [the ICE agent] began his campaign to inveigle [the defendants] into a money-laundering scheme either [of the defendants] Pickard or Hollingsworth had contemplated engaging in such behavior, beyond what little can be inferred from Pickard’s evident familiarity with the requirement of reporting large cash deposits and his suspicion of government informers. . . . A reasonable jury could have found Pickard and Hollingsworth “predisposed” if the term refers merely to a psychological state of willingness to break the law. But if the concept of predisposition is to serve the purpose of the doctrine of entrapment, it must mean more–must connote opportunity (what we are calling “readiness”) as well as willingness.

Just because someone sold parts to Multicore which later sold them to Iran is no indication that the parts dealer is likely to, or ready to, sell parts to Iran. ICE would probably do itself (and law enforcement in general) a favor by trying to catch illegal exporters rather than trying to turn ordinary merchants into criminals.

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