Government's kingpin-sting tactic may threaten airline safety

By Bill Conroy

The airline industry has put its thrusters on full bore in an effort to
comply with government demands to beef up security in the wake of the Sept.
11 terror attacks.

But the same government that is feverishly spinning new legislation to
strengthen the airline industry's security web in the war on terrorism may
also be the source of a major flaw in that safety network - stemming from
efforts to wage another battle: the war on drugs.

According to a Yale Law School professor, that flaw may have already played a
role in the destruction of at least one commercial airliner - which was blown
up in mid-air, resulting in the loss of hundreds of lives.

The law professor, Steven B. Duke, has written to numerous federal agencies
concerning this flaw as part of his efforts to prove the innocence of one of
his clients. To date, his efforts have produced little more than agency
finger-pointing and a cryptic picture of the shadowy world of undercover law
enforcement.

The flaw being exposed by Duke relates to a practice called "controlled
delivery." The practice is used by law enforcement to snare high-ranking
members of drug trafficking organizations. In such a delivery, a law
enforcement agency allows a shipment of drugs to be transported from one
location to its destination, under close surveillance, in an effort to catch
drug-syndicate kingpins with their hands in the cookie jar.

In the case of Duke's client, Gaetano DiGirolamo, some 20 kilos (44 pounds)
of heroin were transported on commercial airlines from Pakistan to New York
City in an alleged controlled delivery undertaken to advance a major
undercover drug operation. Agents with the U.S. Drug Enforcement
Administration (DEA) transported the heroin in December 1990 from Pakistan to
Paris, via Air France; and then from Paris to New York City, via the
now-defunct airline TWA.

The drugs were then purportedly used to set up a series of stings, one
netting DiGirolamo, who was ultimately convicted in 1994 of drug conspiracy
charges in federal court in New York and is now serving a life sentence. Duke
has since taken on DiGirolamo's case - filing a post-conviction petition
seeking to vacate the judgment against his client.

In that petition, Duke alleges that the DEA agents were not really
undertaking a controlled delivery, but in fact were smuggling the drugs into
the country for their own corrupt purposes. Duke charges that DiGirolamo was
the victim of a sting operation designed to cover up the agents' illegal
activities.

The agents, of course, contend Duke's allegations are false.

Dire impact

The twists and turns of the ongoing legal case, though, are overshadowed by
the larger security issues raised by the practice of controlled delivery.

Controlled delivery may well be an effective law-enforcement tool in
combating drug cartels, when all goes as planned. However, when the system
breaks down, or is corrupted, the consequences can be serious, even deadly,
according to Duke.

A letter written in December 1999 by Duke to Jane Garvey, administrator of
the Federal Aviation Administration (FAA), elucidates those concerns:

"The DEA agents who brought the heroin to this country were allegedly linking
up Pakistani drug producers and American dealers, through the assistance of
informers working both in Pakistan and the United States. The drug dealers'
discovery that the distribution network had been infiltrated by informers was
therefore an omnipresent possibility, which they might choose to defend
against by blowing up the airplane. There is ample precedent for drug
organizations planting bombs in airplanes occupied by passengers who are
informants. In 1989, a commercial airliner headed for the United States was
blown up in flight because the Medellin Cartel believed an informant was
aboard. All 107 passengers and crew were killed. ..."

In a June 8, 2000, letter to the FAA's chief counsel, Duke also contends that
negligence in a U.S. government-sponsored drug-sting operation may have led
to the destruction of Pan Am Flight 103 in 1988. The airliner exploded over
Lockerbie, Scotland, snuffing out the lives of 259 people on board and
another 11 people on the ground.

Although a Libyan intelligence officer was subsequently convicted of the
bombing, Duke provided the FAA's chief counsel with a 1991 news story from
the London Times and a copy of an affidavit from a U.S. intelligence officer
that points to another potential cause for the downing of Flight 103.

The intelligence officer, who was assigned to the Defense Intelligence Agency
(DIA) and stationed in the Middle East in 1988, contends that Flight 103 was
being used as a "controlled" flight as part of a DEA drug-sting operation.
The London Times story states that the DIA agent believed the DEA operation
was compromised, allowing terrorists to plant a bomb on Flight 103 through an
airport bag switch.

The DEA claims it was not running a drug sting on the ill-fated flight. A
spokesman for Pan Am, however, said the DEA's claim is "simply false,"
according to the London Times story.

"In addition to the drug-related bombing of the Colombian jetliner in 1989
... it now appears that DEA's smuggling of drugs on another passenger
airplane may have contributed to the destruction of Pan Am Flight 103 over
Lockerbie," states Duke in his letter to the FAA's chief counsel. "...
Perhaps the Congress can be persuaded to rectify that deficiency. One may
hope that a tragedy is not required to produce a recognition of the problem
in that venue."

Out of control

Although the letter Duke wrote to the FAA administrator argues hypothetically
from the assumption that the DEA agents in DiGirolamo's case were telling the
truth about the Pakistan-to-New York heroin shipment, Duke's real position in
his client's case is quite the opposite. In fact, he asserts that the agents
were essentially using the cover of a controlled delivery to facilitate their
own illicit drug smuggling operation - further illustrating how the practice
can be corrupted.

Duke points out that the agents transporting the heroin did not find buyers
for the drugs until some five months after bringing the contraband back to
New York. He adds that the agents involved in the transport never pretended
to be anything other than federal agents - so they weren't acting undercover.
And, he stresses, the agents never produced any documentation to show that
the operation had been approved by DEA headquarters or by the foreign
governments affected, despite claiming that such approvals were in place.

Several former federal law enforcement officials contacted by the Business
Journal also agree that what occurred in the DiGirolamo case, as alleged by
Duke, does not appear to qualify as a controlled delivery.

"A controlled delivery requires the coordination of numerous affected
offices, such as U.S. Customs, the DEA and the U.S. Attorney's Office
prosecuting the case," explains one former undercover agent. "And there has
to be surveillance on it from start to finish, someone eyeballing it all the
way - which makes the operations very expensive because they involve a lot of
man hours. This operation (the one in the DiGirolamo case) doesn't sound
normal; it's not the way it works."

Duke has made efforts to discover if the Pakistan-to-New York heroin shipment
was sanctioned by a government agency. Between 1997 and 2000, he wrote a
series of letters to the FAA, the Department of Transportation and the U.S.
Customs Service seeking information on their policies concerning controlled
deliveries - and more specifically about their knowledge of the heroin
transported by DEA agents from Pakistan to New York in December 1990 via
commercial airlines.

The Department of Transportation referred his letter to the FAA, which
replied by informing Duke that the FAA "does not have authority ... to
prohibit DEA from transporting narcotics on commercial airlines. ..."

The U.S. Customs Service provided Duke with the following reply:

"The specific incident you cite involved the international controlled
delivery of 20 kilograms of heroin at the John F. Kennedy (JFK) Airport on
Dec. 4, 1990. Our records indicate that while our agency provided assistance
in facilitating that delivery through JFK, the entire operation was initiated
and coordinated solely by the DEA. ..."

The response from Customs does not indicate who within the federal
law-enforcement agency facilitated the delivery. However, at that time,
Customs was dealing with some issues itself in relation to its JFK
operations, according to former JFK Customs agent Diane Kleiman - who claims
she was fired in 1999 after blowing the whistle on alleged corrupt activity
on the part of Customs officials at the New York City airport.

Kleiman's case has been accepted for investigation by the U.S. Office of
Special Council (OSC), an independent federal agency that is empowered to
investigate and prosecute cases of alleged governmental misconduct and
mismanagement. In a letter Kleiman sent to the OSC in July 2001, she alleges
that between 1989 and 1991, three federal agents assigned to a drug unit at
JFK died under unusual circumstances. Two died of heroin overdoses and one
committed suicide - allegedly after stealing drugs from an evidence room.

Duke says he is investigating whether there is any connection between the JFK
drug-unit agents and the DEA agents involved in the DiGirolamo case, but adds
"we don't have the connection yet."

"We do know that Customs at JFK 'facilitated' the (alleged) smuggling by our
DEA agents and were aware of it," he adds. "Whether they were corruptly
involved remains to be determined."

Customs officials in New York failed to reply to the Business Journal's query
about Kleiman's claims prior to the paper's deadline.

In the dark

The Business Journal also contacted the U.S. Attorney's Office for the
Eastern District of New York in Brooklyn to seek comment on the DiGirolamo
case and on its policies concerning controlled deliveries. A spokesman for
the office declined to comment.

The newspaper contacted DEA headquarters in Washington, D.C., as well, posing
the same questions. Will Glaspy, a DEA agent and spokesman for the agency,
says he cannot comment on the specifics of ongoing litigation, such as the
DiGirolamo case. However, he provided the following general comments
concerning international controlled deliveries involving commercial airlines:

"Yes, there are procedures that allow for this type of operation. ... We have
policies with checks and balances in place to make sure everything operates
smoothly (with respect to potential dangers to passengers)."

Glaspy adds that the DEA cannot operate unilaterally in a foreign country, so
it would need to obtain approvals from any foreign countries affected by an
international controlled delivery - such as France and Pakistan in the case
of the delivery made in the DiGirolamo case.

In addition, Glaspy stresses that "there are numerous people who need to sign
off on the details of the operational plan (for a controlled delivery) from
the beginning to the end. (DEA) Headquarters plays a big part in that." He
adds that there are also procedures in place to assure that agents
transporting the contraband do not steal drugs from the shipment.

In terms of whether the airlines would be made aware of such an operation:

"It is possible that the commercial airlines involved (in a controlled
delivery) would be made aware, but it is also possible that they would not be
aware," Glaspy explains. "It's done as the need dictates with respect to the
security of the operation and the safety of the agents."

That might explain why Air France stated in a March 9, 1998, letter to Duke
that it had no record of having been notified by the DEA of the 1990 shipment
of 20 kilos of heroin from Pakistan to Paris via Air France.

"We are not permitting such a transportation on our lines," the letter
states. "Should we learn that a quantity of drugs, heroin or other, large or
small, is loaded on board one of our aircrafts, we would immediately report
to the local police as well as our national authorities."

TWA, which was the commercial carrier that was used by the DEA agents to move
the heroin from Paris to New York City, sent a letter to Duke in January 1998
declining to comment on the incident.

TWA's assets have since been acquired by Fort Worth-based American Airlines.
When asked about its policy concerning controlled deliveries, American
Airlines spokesman John Hotard provided the following reply:

"American Airlines often cooperates with federal law enforcement agencies in
the fight against drug smuggling. We have a vast network of our own security
agents throughout our route system to ensure that American Airlines flights
are safe and secure. That said, we are not aware of any illegal drugs ever
being placed on any of our aircraft by federal law enforcement officers."

Risky business

Although American Airlines may not be aware of such activity, according to a
February 1999 affidavit submitted in the DiGirolamo case by DEA agent Charles
Graham, international controlled deliveries of illegal drugs are standard
fair for the DEA. Graham was assigned to the DEA's Karachi, Pakistan,
resident office (KRO) from 1989 to 1993.

"It is standard operating procedure for the DEA to transfer drugs seized by
the DEA in Pakistan to the DEA in the United States for the purpose of doing
controlled deliveries," Graham states in the affidavit. "In my estimation,
during the course of my tenure at the KRO, DEA performed at least 30 such
controlled deliveries. Drugs have been transferred under those circumstances
to a number of DEA offices, including those in Long Island, Miami, Los
Angeles and Philadelphia."

These revelations take on an even more ominous tone in the wake of Sept. 11
and with the rise of global terrorism. Consider the fact that, according to
an analysis of public records, of the 28 groups that were designated as
terrorist organizations by the U.S. State Department as of Oct. 5, 2001, at
least 10 (including al-Qaeda) have known ties to drug trafficking or drug
cartels.

In that light, Duke's legal efforts reveal some startling information
concerning the U.S. government's policy on controlled deliveries, including
the fact that the airlines and passengers are often kept in the dark with
respect to these undercover drug shipments.

Duke spells out his concerns with the practice in his December 1999 letter to
FAA Administrator Garvey:

"When I first learned of an agent's testimony that he brought multi-kilo
quantities of heroin into this country on commercial flights, I concluded
that the agents were probably using the cover of their jobs to smuggle drugs
for their own private, corrupt purposes," Duke states in the letter. "I still
suspect that was the case. The U.S. Attorney's office for the Eastern
District of New York contends, however, that such activities are a common
practice of the DEA."

Duke goes on in the letter to question why the government is importing more
drugs into the country - given the fact that there are already plenty of
drugs in the United States that could be used for sting operations.

"Since there can be no compelling law enforcement purpose for bringing such
drugs into the country," Duke continues, "... something is seriously awry in
the DEA that, among other things, threatens the lives of innocent airline
passengers."

___________________

SIDEBAR

Yale law professor's client contends he was wrongly convicted

By Bill Conroy

Gaetano DiGirolamo is no saint.

According to U.S. Drug Enforcement Administration (DEA) records, DiGirolamo
is a "known associate of the Cotroni organized crime family based in Canada,
and has an extensive narcotics background."

And DiGirolamo has paid a price for his career choice. He spent much of the
1980s (1984-1990) in federal prison in Danbury, Conn.

So it should not be a big surprise to most people that he again found himself
on the wrong end of the law in the early 1990s, shortly after his release
from prison.

That run-in with the system - the DEA specifically - led to his indictment in
1991 and conviction in 1994 on drug conspiracy charges in U.S. District Court
for the Eastern District of New York.

The conspiracy charges against DiGirolamo stemmed from a meeting he arranged
between a DEA informant and another individual who eventually purchased
heroin from the informant.

However, DiGirolamo claims he had nothing to do with the drug deal. Despite
what people might assume about him, he contends that he is not guilty of the
charges brought against him in 1991; in fact, he claims he was framed by DEA
agents seeking to use his case as a cover for their own illegal
drug-smuggling activities.

DiGirolamo appealed his conviction, only to lose again in 1995. At that
point, Steven B. Duke, a professor of law at Yale Law School in New Haven,
Conn., stepped in, taking on DiGirolamo's case pro bono. In 1997, Duke filed
a post-conviction petition with the federal court seeking to vacate
DiGirolamo's conviction.

Among the claims raised in the post-conviction petition were that DiGirolamo
was convicted "based upon perjury of three DEA agents" and that his
court-appointed lawyer provided inadequate legal representation.

"(The DEA agents) testified that they were involved in importing drugs for
use in 'stings' against me and others when in truth and in fact they were
doing so for their own personal, criminal enrichment," states DiGirolamo in
his post-conviction petition.

According to court pleadings, the DEA agents transported 20 kilos (44 pounds)
of heroin from Pakistan to New York City via commercial airlines in December
1990 allegedly for the purpose of setting up undercover stings.

The petition goes on to raise major doubts about the veracity of the DEA
agents' purported sting against DiGirolamo - such as the fact that the
alleged heroin brought in from Pakistan was never tested to assure it was the
same heroin used in the sting, nor was the heroin ever produced at trial.

In addition, despite claims by the DEA agents involved in transporting the
heroin that their operation had been sanctioned by DEA headquarters in
Washington, D.C., as well as the French and Pakistani governments, Duke says
those approvals were never produced.

"Where are they?" Duke asks in a court filing. "Where are the applications
for such approvals? Where is the evidence that any of these approvals were
sought, much less obtained?"

Jan connection

DiGirolamo and others were being targeted, according to the testimony of DEA
agents, because they were believed to be distributors for a major heroin
trafficking syndicate headed by a mysterious Pakistani figure named Jan. The
20 kilos of heroin imported from Pakistan by the DEA agents allegedly were
acquired through undercover purchases from the Jan organization, legal
filings in the DiGirolamo case state.

From the fall of 1991 to the summer of 1992, there were a total of nine other
prosecutions that were related to the Jan syndicate sting. In each of those
cases, the DEA agents tell the same story, according to court filings made by
DiGirolamo's defense team.

Despite this fact, the court filings claim, Jan and the drug syndicate being
targeted by the DEA operation never figured out that repeated stings and
arrests were occurring - even though the heroin involved in the nine
prosecutions adds up to 50 kilos, 30 kilos more than was provided by the Jan
organization.

"How could any organization think it had any of the 20 kilograms of heroin to
sell after the first few arrests?" Dukes states in a legal brief in the
DiGirolamo case. "Moreover, Jan was an informant for the DEA."

Duke was even able to track down a witness who claims to have purchased
heroin from individuals fitting the description of the DEA agents in the
DiGirolamo case. The witness, who is serving a life sentence on drug
conspiracy charges in a federal prison in Pennsylvania, claims the drugs he
and his partner acquired in those deals in Queens, N.Y. (some 40 ounces a
week at $6,000 an ounce) were in turn sold on the streets of Philadelphia.

Duke has made numerous requests of prosecutors in both Philadelphia and New
York for various records that would help substantiate or disprove the claims
being made by the witness, but "all those requests were ignored," he claims.

In a letter to the judge in DiGirolamo's case, Duke alleges that the DEA
agents were, in reality, engaged in their own smuggling operation "for the
purpose of selling the drugs and using 'stings' as a cover for their
operation."

The DEA agents characterized the claims raised by Duke as "untrue and
absurd," according to court records.

The judge in the case also dismissed Duke's arguments, contending instead
that DiGirolamo was convicted on overwhelming evidence that he conspired to
possess heroin.

In addition, according to court records, the judge found there was
insufficient evidence to support the claim that the DEA agents were illegally
importing heroin for their own drug trafficking operation. And even if those
allegations were true, the judge reasoned, it would simply make DiGirolamo a
co-conspirator with the DEA agents.

"In December 1999, (the judge) dismissed the entire case in one of the most
bizarre opinions I have ever seen," Duke says. "... Essentially, (the judge)
said it didn't matter if the DEA agents were corrupt smugglers."

Duke says he currently has a dormant motion to reconsider the ruling now
pending with the court, "which I intend to activate very soon. ..."