By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
Akers, now an official with the National Rifle Association--where, ironically, she labors to make it easier for people like Kapetanovic to buy guns--didn't return calls from New Times.
Aspey, perhaps reflecting his concerns about the viability of his case, offered all three men plea bargains in the spring of 1992. After spending nearly a year in jail awaiting trial, Belinic and Vusir, eager to return to their country and avoid the time and expense of a lengthy court appearance, accepted. They each pleaded guilty to one count of attempted illegal exportation. They did so, Belinic's attorney Marty Lieberman says, because "it was very apparent that they could go home right away if they pled."
Federal District Court Judge Roger Strand delivered his opinion on the quality of the evidence against Belinic and Vusir by departing from federal sentencing guidelines--sentencing them both to time served, and suspending their mandatory probation period, thus clearing the way for their immediate trip home.
But Kapetanovic refused to plead. "I am innocent man," he says. "Why should I admit to something I didn't do?"
Aspey's biggest problem was telling the jury that Kapetanovic hadn't actually smuggled anything. The government's case was based solely on his intent to do so. Called a "dry conspiracy," it is difficult to prove under any circumstances.
It was even more difficult in this case because the government could have waited to see if the conspiracy would moisten a little. Agents could have given Kapetanovic a chance to prove his real intent, by allowing him time to return to San Antonio to buy and export Beau Sutherland's weapons. But Goode claims the agents chose not to wait because they already knew what the outcome would be.
"Why didn't they wait to see if Ivan was really a smuggler? They had waited five months, why not wait a few more days?" Goode wonders.
The jury asked the same questions. And, evidently, came to the same conclusion.
"By May 31," Goode says, "Customs knew Kapetanovic and the guys were never going to buy anything. But they needed to have something to show for five months' work. If they had waited, Ivan would have proven his real intentions, and Customs would have been left with no reason to arrest him. So they went with what they had.
"It wasn't much, but it was enough to screw up his life."
Addressing the jury, Goode, a flamboyant orator, exploited other weaknesses in the government's case.
Why, for instance, had Belinic and Vusir openly declared the $500,000 they brought into the country, filling out all the proper Customs forms? Why had they deposited the money in a checking account, leaving a paper trail behind them, if they and Kapetanovic intended to use it for an illegal buy?
Goode also hammered Askins relentlessly on the stand. Didn't Askins have a "profit motive" in seeing Kapetanovic go down?
"I think everybody involved did," the former spook shrugged, calling himself a simple businessman, "like a privateer who seizes ships."
To make matters worse, Customs officials seemed unable or unwilling to support their own case. When Goode asked William O'Neill, the Customs agent who supervised the five-month sting, about tapes which showed Kapetanovic had repeatedly demanded permits prior to shipping weapons, O'Neill replied lamely, "I'm not denying what's on the tape."
So flimsy was the case against Kapetanovic that almost immediately after the "not guilty" verdict was read by the jury last summer, the U.S. Attorney's Office began fretting over the possibility that Kapetanovic might sue for malicious prosecution.
"There was concern that Ivan was going to sue us and Customs," the source within the office says. "We wanted to convince him that was a bad idea."
The method of persuasion chosen by the U.S. attorney was blunt and direct. If Kapetanovic didn't agree to sign a waiver, pledging to refrain from filing suit, the federal government would pursue forfeiture proceedings against his property under RICO laws--a right the government technically retained, even though Kapetanovic had been acquitted.
Although RICO was originally designed to allow prosecutors to strip property from mobsters, it has been used in recent years to take away homes, cars and other valuable items from drug offenders, bad-check writers and even drunken drivers. Now the U.S. attorney was prepared to utilize it in a new and unique way--to confiscate the assets of a man who had been judged innocent of any crime by a court of law.
Although it is unlikely that the RICO action against Kapetanovic would have been successful, defending it would have been time-consuming and expensive. And during the proceedings, Kapetanovic would have been unable to refinance, borrow against or sell any of his property, including his Fountain Hills homes.
But Kapetanovic refused to sign the waiver, viewing the RICO threat as simple blackmail. "No matter what," he says, "I will not give in one inch to them. I do not know if I will sue, but it is my right, and I will not sign it away."
For more than a year, prosecutors and Goode sparred over the waiver. Only last month did the U.S. attorney finally agree to drop all of its legal rights to pursue Kapetanovic's homes--and it did so without receiving any promises from Kapetanovic.