Motion To Suppress Evidence

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 1 of 37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Robert E. Sanders 109 Candlewyck Drive Winston-Salem, NC 27104 Phone: 336.659.2999 Fax: 336.765.9950 email: gunlaw@triad.rr.com Counsel for Randolph B. Rodman Pro hac vice
UNITED STATES DISTRICT COURT for the DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff, v. RANDOLPH B. RODMAN, Defendant. MOTION OF RANDOLPH B. RODMAN TO SUPPRESS EVIDENCE SEIZED IN EXECUTION OF SEARCH WARRANTS 08-2630-JKB AND 08-2631-JKB WITH POINTS AND AUTHORITIES IN SUPPORT THEREOF Evidentiary Hearing Requested CR-10-1047-ROS
Defendant, Randolph B. Rodman, by and through Counsel, respectfully moves this Honorable Court for an Order to quash District of Maryland Search Warrants numbers 08-2630JKB and 08-2631-JKB (the residence and business of defendant Rodman,1 respectively); to vacate the ATF Administrative Forfeiture Proceedings now pending against eighteen (18)
Defendant Rodman is licensed to engage in the business of manufacturing firearms (FFL) at his business property. He is also authorized, as a Special Occupational Taxpayer (SOT) to manufacture and deal in machineguns at the same location. Status as an FFL, payment of an annual tax of $1,000.00 per annum and registration with ATF is required to engage in the business of manufacturing NFA Firearms, including machineguns. (Hereafter, a person licensed to engage in a firearms business and who is a Special Occupational Tax payer will be referred to as an FFL/SOT.)
MOT SUPPRESS FINAL 091412.wpd
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
firearms seized during the search of the residence, and twenty-eight (28) firearms and six (6) pieces of industrial machinery seized during the search of the business;2 and to suppress the use as evidence at trial all items seized under both warrants. In addition, defendant Rodman requests a Franks hearing, if necessary, Franks v. Delaware, 438 U.S. 154 (1978) also, if necessary,a Kastigar hearing to determine if the government has an untainted source for its evidence in CR10-1047 ROS. See Kastigar v. United States, 406 U.S. 441 (1972). This motion to suppress is based on analysis of a single Affidavit prepared by ATF Special Agent Patrick Sander for the issuance of search warrants for six (6) non-adjacent properties. The arguments set forth herein are devoted solely to the few references in the Affidavit that concern information about two such properties, the residence and business of defendant Rodman. FACTS An Affidavit signed on August 19, 2008, by ATF Special Agent Patrick Sander allegedly provided grounds for a Maryland Magistrate Judge to issue six (6) search warrants to search six (6) properties located in the District of Maryland. Two of the warrants, Numbers 08-2630-JKB and 08-2631-JKB, respectively, were for the Rodman residence and the business. Regarding the two Rodman properties, the Affidavit provides neither probable cause for a search, nor particularity of items to be seized. Thus, Search Warrants 08-2630-JKB and 08-2631-JKB were improvidently issued.
The government commenced Administrative Forfeiture Proceedings against this property on or about September 29,2008, under the National Firearms Act Forfeiture Section, 26 U.S.C. 5872. However, some of the firearms are not firearms as defined in the National Firearm Act and are not subject to forfeiture. The government lacks jurisdiction to forfeit any property except National Firearms Act firearms and ammunition. Four years after the seizures, the government has not filed a Complaint to forfeit any of the property seized from defendant Rodmans home or business and has ignored his requests for a jurisdictional determination.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
THE SCALE AND TIME LINE OF EVENTS RELATING TO DEFENDANT RODMAN Between August 31, 2000, and February 20, 2008, the ATF National Firearms Act Branch approved thirteen (13) ATF Forms 3, Applications to Transfer a machinegun to defendant Rodman. The Applications had been filed by defendant Clark, who had made changes to each machinegun involved. In October, 2006, ATF had determined that the changes made by Clark were not modifications but were, in fact, new machineguns. Because the changes were made after 1986, the transfer of the machineguns was prohibited by 18 U.S.C. 922(o). The approval of each application by ATF was itself illegal and in violation of the mandate of 26 U.S.C. 5812(a) which provides, Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law. The approval of Clarks applications had grave consequences: The transferors shipment would be unlawful; the transferees receipt and possession would be unlawful; any attempt to retransfer it by the transferee would be unlawful; and the cycle of commerce could continue ad infinitum. The cycle ended on or about October, 2006, when ATF determined that defendant Clark was manufacturing new machineguns and halted the approval of his applications to transfer machineguns. Every Form 3 submitted by defendant Clark described a machinegun that significantly differed from the description of the same machinegun recorded in the ATF National Registry. The machineguns involved had been registered to defendant Clark and were receivers of a MAC-style machinegun. The receiver of a machinegun, standing alone, is a machinegun only because it is defined as such in Section 5845(b) of Title 26, the National Firearms Act. The term receiver is defined in 27 C.F.R. 479.11 Meaning of Terms, as that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel. Machinegun receivers can be registered and transferred because they are statutory machineguns; as such, they are subject to the $200.00 transfer tax. Receivers that were registered before May of 1986 have value for one reason only. They can be used to build a fully operable machinegun. That concept describes
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
defendant Clarks business plan: buying registered receivers and building fully operable machineguns around the portion bearing the registration data. 1993 - 2000: DEFENDANT RODMAN DOES NOT KNOW DEFENDANT CLARK In or about 1993, Defendant Clark, an FFL/SOT, implemented a business plan on the premise that the portion of a machinegun receiver bearing the markings required by law (Original Manufacturer, Model and Serial Number) is the machinegun itself; that it is lawful for an FFL/SOT to remove that portion and build a machinegun around it; and that the resultant machinegun would retain the registered status of the registered machinegun. Between 1993 and 2009, defendant Clark performed that process on thirty-four (34) machineguns. He offered the modified machineguns for sale to friends, in trade publications and on the Internet, sold them then applied to ATF for permission for their transfer. Each of the thirty-four (34) application forms submitted by defendant Clark was approved by ATF, and none was even questioned until in or about October, 2006. Since all modifications occurred after May 19, 1968, and were subject to the application of 18 U.S.C. 922(o), ATF initiated an investigation to determine whether defendant Clark had violated numerous sections of National Firearms Act (NFA). In or about November, 2006, ATF froze all future transfer applications by defendant Clark until disposition of the pending ATF criminal investigation. 2000: DEFENDANT RODMAN MEETS DEFENDANT CLARK THROUGH THE INTERNET AND PURCHASES ONE MODEL 1919 MACHINEGUN Some time in 2000, defendant Goldstein3 informed defendant Rodman4 that Clark was
Rodman is informed by defendant Goldstein. In 2000, Goldstein was operating an Internet business, buying and selling firearms parts and accessories, a business which does not require licensure. Defendant Goldstein was also working informally as an agent for a few FFL/SOTs, including defendant Rodman. As an agent, defendant Goldstein located buyers and sellers of National Firearms Act firearms and parts. In or about 2005, Defendant Goldstein became an FFL/SOT. In 2000, defendant Rodman had been an FFL/SOT since the early 1990s. His business, R & S Arms, remains licensed and current with Special Occupational Taxes. Defendant Rodman is also licensed by the State of Maryland, Montgomery County and the city of Silver Spring,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
offering transferrable M-1919s for sale on the Internet. Prior to that time, defendant Rodman did not know defendant Clark nor was Rodman familiar with Clarks reputation other than that he was an FFL/SOT in Arizona. From further inquiries, defendant Rodman learned the details of Clarks business plan. Although Rodman was skeptical of Clarks methods, Rodman received assurances that the Clarks methods were compliant with ATFs policies, that Clark had been modifying machineguns for many years, and that ATF had approved every transfer application. Rodman purchased one such machinegun, more or less a trial purchase, to review the quality of the product, the workmanship and confirm the lawfulness of Clarks methods. On or about September, 2000, Defendant Rodman received machinegun Model-1919, Serial Number 820101086 along with a Form 3 approved by ATF on September 21, 2000. The Form 3 bore no indicia that the future transferability of the machinegun was restricted. The absence of a restriction on an approved form is proof positive that machinegun 820101086 was lawfully registered prior to May 19, 1986, that it was registered to Rodman in the National Firearms Register and Transfer Record (NFRTR) and was transferrable. Defendant Rodman found that the workmanship, material and aesthetics of the gun were superior - the work of a master machinist. Defendant Rodman offered the machinegun for sale, and Defendant Goldstein soon found a buyer, John Brown5, an FFL/SOT in Virginia. Defendant Rodman filed a Form 3 Application describing the machinegun exactly as it was described on the form transferring it to him. ATF
Maryland to engage in the same business. In this highly regulated business, R & S Arms has been subjected to numerous federal and state compliance inspections of inventory and records and has an excellent compliance record. He has never been cited for violations of inventory discrepancies or record-keeping omissions - a remarkable record of compliance, where the business norm is otherwise. R & S Arms is co-located with a Mercedes automobile repair business, The Auto Shoppe operated by defendant Rodman for more that twenty (20) years on property and in buildings that he owns In 2004, John Brown purchased another M-1919 machinegun, Serial Number A6042075, from defendant Rodman. In late 2006, this gun was a major part of ATFs investigation of defendant Clark underlying the indictment in 10-cr-1047-ROS.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
approved the transfer on November 15, 2000, and the gun was shipped. During Discovery it was learned that transferee John Brown sold the machine gun and transferred it to a Maryland FFL/SOT. 2001: THE FIRST TRANSACTION BETWEEN DEFENDANTS RODMAN AND CLARK For defendant Rodman, the approved Form 3 for machinegun S/N 820101086 was indisputable proof of the legality of Clarks manufacturing methods and the high quality of Clarks work. Defendant Rodman then placed an order with Clark for the purchase of three (3) more M-1919 machineguns, once more with defendant Goldstein acting as Rodmans agent. ATF approved Defendant Clarks applications to transfer (Forms 3). Defendant Rodman received delivery of three M-1919 machineguns (A6041867, A6041868 and A6041869) in or about late February of 2001. Rodman recorded the acquisitions in his official records and offered the machineguns for sale on the open market. He sold them, applied for, and received, ATF approvals for their transfer, and shipped or delivered each machinegun on or about May 2, 2001, November 15, 2001, and June 16, 2005 respectively to an FFL/SOT in South Carolina, and to two unlicensed individuals in Maryland. Defendant Rodmans Applications to Transfer described each machinegun according to its actual measurements, noting their consistency with the descriptions on the Forms that transferred them to him. Transfers for each machinegun fully complied with the law; all transfer taxes were paid; and Rodman complied with all record keeping requirements. Most importantly, all of this was accomplished under the authority of the United States. 2001: THE SECOND TRANSACTION Rodmans confidence in defendant Clark having been buttressed by the two earlier transactions, Rodman entered a second transaction with Clark for the purchase of two (2) more M-1919 machineguns. On or about January 2002, Rodman received machineguns A6042075 and A6041870, each accompanied by a Form 3 accurately describing the markings and measurements of the machinegun. Defendant Rodman entered the acquisitions in his official
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
records and openly offered the machineguns for sale. Both machineguns remained in Rodmans inventory for a few years until machinegun A6042075 was sold to John Brown sometime in 2004. Again, defendant Goldstein had done the negotiations for the sale. Defendant Rodman applied for, and received, ATF approval to transfer A6042075; and it was delivered to John Brown on or about November 11, 2004. John Brown was an FFL/SOT in Virginia. He was President of the National Firearms Act Trade and Collectors Association (NFATCA), a non-profit trade association advocating for the interests of NFA manufacturers, importers and dealers, individual collectors, owners and others considering owning NFA firearms. It was learned in discovery materials that he was also an ATF Confidential Informant. Around time of the delivery of machinegun A6042075, the NFATCA, and John Brown personally, were involved in a joint ATF/NFATCA research and writing project to produce the National Firearms Act Handbook, intended as a reference guide to compliance requirements and to inform members of ATF procedures, practices and interpretations. The final handbook was completed on or about 2007 and since that time has been posted on the ATF Website. The handbook project required continuous interface between Brown and Firearms Technology Branch personnel at their West Virginia facility and particularly with the Acting Chief of the Branch, Richard Vasquez. Notably, the NFA Handbook does not mention modifications to registered machineguns, although modifications are a common practice. On or about June 25, 2005, John Brown transferred machinegun A6042075 to a Virginia resident on a tax-paid approved Form 4. The Form 4 Application documented the fact that the machinegun had been modified while in Browns possession. The Form notes a barrel length change from 24 to 13 inches, and an overall length change from 41 to 37.25 inches. After possessing the machine gun for a little more than a year, on or about August 25, 2006, the Virginia owner transferred it back to Brown on an ATF approved tax-paid Form 4, reflecting that the gun had been modified again: the barrel length and overall length had been restored to 24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
inches and 41 inches, respectively. Machinegun A6042075 then remained in Browns possession and registered to him. According to numerous discovery reports, Brown was contacted by ATF and asked to deliver machinegun A6042075 to the Firearms Technology Branch for examination and testing. The testing was alleged to have been performed on October 31, 2006, by Richard Vasquez, the Deputy Chief of FTB. The alleged FTB examination and testing of machinegun A6042075 and the purported report thereof triggered an ATF criminal investigation of defendant Clark. In fact, machinegun A6042075 was never officially received by the ATF Firearms Technology Branch, it was never officially tested and no official report was ever prepared. These facts have been verified through FTB evidence logs. However, A6042075 was tested and examined by Richard Vasquez, then Acting Chief of the Branch at the Firearms Technology Branch facility on October 31, 2006, but the examination was performed as a private matter; and was not handled as an official examination of evidence. Mr. Vasquezs findings from the October 31, 2006, test were chronicled in numerous official ATF reports, to wit: Vasquez concluded that the conversion of a MAC Model 10 machinegun to a Model 1919 machinegun constituted a new manufacture; therefore, machinegun A6042075 was not registered and was a contraband unregistered machinegun. After FTBs conclusing that machinegun A6042075 was contraband, it was inexplicably returned to John Brown who then transported the machinegun across state lines from the FTB facility in West Virginia to his place of business in Virginia. A disturbing question arising from ATFs treatment of the testing discussed above is why FTB examination of A6042075 was not treated as evidence or as an official work product of the Firearms Technology Branch, and why was an official report not required. The only explanation for why the entire matter was not made an official part of any ATF records was that it was treated as a matter of personal privilege. The only reasonable conclusion is that the intent of the private examination of machinegun A6042075 (in violation of numerous ATF statutes and procedures)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
was to conceal the fact that an ATF informant had bought, received, possessed, sold it and, in fact had bought and transferred two other machineguns that were unlawfully manufactured by Clark. In November 2006, ATF Special Agent Quartetti of the ATF Falls Church, Virginia office, was assigned the investigation of John Browns possession of machinegun A6042075. Special Agent Quartetti contacted Brown to arrange for an examination of the contraband machinegun. On November 21, 2006, Special Agent Quartetti met with Brown and his attorney at Browns licensed business in Centreville, Virginia. Also present at the meeting were an ATF attorney and ATF employees representing the National Firearms Act Branch and the Firearms Technology Branch. Brown proposed to abandon the side-plate of machinegun A6042075, and ATF agreed to that proposal. Thus, the entire machinegun less the right side-plate was left with Mr. Brown and was never available for an official Firearms Technology Branch examination. ATFs practice of recognizing the right side-plate of a box receiver, such as the M-1919 as the registered part of a machinegun is a long standing practice within ATF. Further, this practice is commonly known by collectors and machinegun owners throughout the industry. Nevertheless, the facts concerning ATFs care and custody of machinegun A6042075 becomes more inexplicable other than a desire by certain ATF employees to conceal the involvement of a confidential informant. After taking custody of the right side plate of machinegun A6042075 on November 21, 2006, it was placed into the ATF evidence vault in Falls Church, Virginia where it remained until June 15, 2007 when it was delivered to the Firearms Technology Branch in West Virginia to be tested and examined. While awaiting the examination report and while the side-plate was still in the custody of the Firearms Technology Laboratory, another strange event occurred. Special Agent Quartetti requested authority to destroy it. The report of the examination was not completed until August 20, 2007, and the right side- plate was returned to the Falls Church evidence vault. On August 8, 2008, the side-plate was destroyed. In addition, there are no photographs of machinegun A6042075 either as a fully
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
assembled M-1919 or as a right-side plate. Thus, defendant Rodman has been prejudiced by being deprived of the opportunity to inspect and test vital evidence in this case. On May 2, 2008, defendant Rodman was asked to abandon three Models 1919s and two MAGs6 he had received from Defendant Clark. Each had a Form 3 approved by ATF and was still in inventory. (It is important to note that this situation was identical to that of Brown and machinegun A6042075.) Defendant Rodman readily consented to abandon the three Model 1919s merely on the claims of the ATF Special Agents. Two of these were the right-side plates of MAG machineguns. The Maryland Special Agents accepted Rodmans abandonment of the right side-plates. Contrasting the treatment of defendant Rodmans surrender of side-plates to Maryland ATF Special Agents on May 2, 2008, with that of an ATF Informant, John Brown, ATF accepted the abandonment of Mr. Browns side plate. In fact, in an e-mail received in discovery, Acting Chief Vasquez offered to come to Browns place of business to assist in disassembling A6042075 for Mr. Brown. In describing an identical situation involving defendant Rodman a little more than a year later, Mr. Sander states in the Affidavit that defendant Rodmans abandonment of side-plates was obstruction of justice and subornation of the obstruction of justice; that Rodmans abandonment of side plates interfered in a federal investigation by not turning over evidence ... and that he (Rodman) encouraged another person to follow his example. (Affidavit, para. 52) Mr. Sander
Defendant Rodman received M-1919 machinegun A6041870 from Clark on or about November 11, 2001, and it was still in inventory; he received MAG machineguns A6042027 and A6042029 from Clark on or about May 5, 2002, and these were still in inventory. Defendant Rodman ordered three M-1919 machineguns from Clark in or about 2003-2004; he paid in full for them but did not receive them or any explanation from defendant Clark. Following dunning calls and e-mails to Clark, Rodman did receive Model M-1919 machineguns 820101546 and 820101557 Rodman on or about February 20, 2008, and these were in his business inventory. In the meantime, on February 20, 2008, ATF had approved Clarks application to transfer the third Model M-1919, 820101541, but Clark had not shipped the machinegun. Therefore, on March 20, 2008, while while executing a a search warrant for Clarks residence. ATF seized machinegun 820101541.
10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
further slanders Rodman in stating that he appears to be hiding/concealing evidence that is necessary in this federal investigation ... (Affidavit, page 38,para. 68) 2002: THE THIRD TRANSACTION Later in 2002, defendant Rodman placed an order with with defendant Clark for three (3) MAG machineguns. Sometime in June, Rodman received MAG machineguns A6042027, A6042028 and A6042029, accompanied by approved ATF transfer forms. One machinegun (A6042028) was sold and transferred on a Form 4 to a Maryland individual. This transaction fully complied with the NFA and implementing regulations and included payment of the transfer tax. The other two machineguns (A6042027 and A6042029) were among the five abandoned to ATF Special Agents on May 2, 2008. ATF later seized A6042028 from the Maryland individual. 2003: THE FOURTH TRANSACTION In 2003, defendant Rodman placed an order with defendant Clark for a Thompson machinegun, and on or about June 4, 2003, Rodman received machinegun A6042076 from defendant Clark with an approved Form 3 registration. About a year and a half later, on or about December, 2004, A6042076 was purchased by defendant Goldstein, who at this time was an FFL/SOT. Defendant Rodman filed an ATF Form 3 application on December 19, 2004, describing the Thompson precisely as it was described on the Form 3 transferring it and precisely conforming to the measurements of the machinegun itself. The application was approved on January 10, 2005, and the sale of machinegun A6042076 was completed with its transfer to defendant Goldstein. 2004: THE FIFTH AND LAST TRANSACTION Sometime in late 2003 or early 2004, defendant Rodman ordered three M-1919s from defendant Clark and paid for them in full. However, the positive business relationship with Clark began to unravel when defendant Clark failed to deliver anything and made no attempt to contact Rodman or otherwise explain his failure to complete the sale and transfer. This was to be
11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
the last sales transaction between Rodman and Clark. (The actual transfer from Clark to Rodman did not occur until sometime after February 20, 2008.) In or about 2006, defendant Rodman caused calls and e-mails Clark regarding the status of the three machineguns he had bought and paid for. Clarks reasons for his lack of response varied: he had health problems, he had trouble with parts and fittings, he was amending his license, etc. Finally, on December 27, 2007, defendant Clark submitted three Form 3 Applications to ATF to transfer three model M-1919s (820101541, 820101546 and 820101557 to defendant Rodman. However, at that point, ATF had been investigating Clark since 2006 for unlawfully manufacturing and transferring machineguns. ATF, and particularly Mr. Sander, knew that ATF had already approved 31 applications from Clark to transfer machineguns which ATF suspected of being unlawfully manufactured. Mr. Sanders also recognized that each transfer caused the transferee (and future transferees) to be in unlawful possession of a machinegun. Further, at the beginning of the Clark investigation ATF, had frozen7 all future transfer applications to and from Clark to prevent further unfortunate approvals which would place the receiving transferees in violation of 922(o) and numerous NFA laws. In spite of the freeze, placed on the three machineguns discussed above, ATF approved these three applications on February 20, 2008. The statute of limitations on substantive 922(o) offenses against defendant Rodman was nearing expiration; and, in fact, had expired by the time this case was indicted. (The subject of intentionally approving the applications for the purpose of creating new crimes with which to charge defendant Rodman is discussed in greater detail in Defendants Motion to Dismiss for Outrageous Government Misconduct) (Docket Number 336).
To freeze a machinegun is a routine ATF investigative tool, the purpose of which is to avoid the horrific consequences of the approving of an application that would place the innocent transferee in violation of numerous felony violations. The freeze is noted in the machineguns NFRTR registry, making it impossible for an application to be approved inadvertently.
12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Following approval of the three Form 3 applications, Clark shipped two of the machineguns (Serial Numbers 820101546 and 820101557) to defendant Rodman who received them and recorded the transactions in his official records. Both were in Rodmans inventory and abandoned to ATF Special Agents on May 2, 2008. When considering probable cause issues related to defendant Rodmans home, it should be noted that each machinegun shipped by defendant Clark was addressed to, and received at, defendant Rodmans place of business, R & S Arms, and not his home. It should also be noted that when preparing the Affidavit, Mr. Sander knew the exact location of every machinegun suspected to have been unlawfully manufactured and transferred by defendant Clark. None of them was at either of the Rodman properties. THE OFFENSE The Sander Affidavit loosely describes a plan conceived and implemented in 1993 by defendant George Clark, an FFL/SOT in Arizona, to acquire registered MAC machineguns, convert them into other styles of machineguns, and subsequently sell and transfer them. Simply put, the modification of a registered machinegun is not an offense under the National Firearms Act, 26 U.S.C. 5801 et seq. or the implementing regulations, 27 C.F.R. Chapter II, Part 479. Furthermore, the modification of a registered machinegun by an FFL/SOT does not violate 18 U.S.C. 922(o), since the statute exempts persons licensed to manufacture machineguns. Defendant Clark was such a person, and in completing the ATF form required for transferring modified machineguns, Clark accurately described the modified machinegun. As a result, defendant Clarks form showed radical discrepancies between caliber, barrel length and overall length when compared with the description in the NFRTR. The differences in the descriptions between the machinegun described on the application form and those for the same machinegun recorded in the NFRTR were too obvious to be missed. EXPLAINING 34 ATF VIOLATIONS OF 5812 OF THE NATIONAL FIREARMS ACT
13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Given the discrepancies between information of Clarks forms and information in the NFRTR, gives rise to the issue of why did the ATF National Firearms Branch approve transfer forms that were patently inconsistent with NFRTR data. Why did ATF approve the forms when doing so constituted a violation of 26 U.S.C. 5812? , which clearly states that, ... Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law... In this case, ATF chose to prosecute the defendants for machineguns that had been modified where there is no law or regulation prohibiting modifications, and elected not to prosecute other individuals (i.e., government employees) where there is a clear and unambiguous statute. The NFA penalty section, 5871, specifies, Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten (10) years, or both and Section 5812 cannot be violated by anyone other than ATF National Firearms Act Branch employees, given that only government employees are authorized to approve transfers of machineguns that would place the transferee in violation of law .... Rodman is one person who was placed in violation of law. ATFs approval of 13 of the 34 Clark Applications is the sine qua non of every substantive crime with which defendant Rodman is charged. Absent ATFs unlawful transfer approvals, he would never have received or possessed any of Clarks new machineguns; Rodman never could have offered any of the machineguns for sale, nor have filed applications for their transfer. In short, defendant Rodmans indictment is solely attributable to ATFs failure to deny Clarks applications or refer them for criminal investigations. Actually, ATF had approved thirty-four (34) applications and none had even been challenged. Two explanations for the lack of challenges come to mind. The first and most probable explanation is that National Firearms Act Branch employees were uninformed that changes minor or major to a registered machinegun constitute the manufacture of a new, unregistered machinegun as the Affidavit contends, and were trained to approve applications that
14
1 2 3 4 5 6 7 8 9 10
documented modifications of all kinds as long as the other descriptions matched. The second explanation for ATFs wholesale approvals could be attributable to serious instutional problems such as employee inattention to detail, carelessness, incompetence, or reckless disregard for procedures. A senior ATF Executive described the violations as unfortunate. (Bates, MHM000000271) Further, the cause may lay with incompetence, lack of training, supervision, management review, or executive oversight. A final explanation offered by some is that the National Firearms Act Branch, from top to bottom, is replete with waste, fraud and abuse. (The undersigned does not hold this view.) MR. SANDERs DISCOVERY OF A LEGAL PRINCIPLE THAT ACCOMMODATES HIS VISION OF THE CASE In Paragraph 19 of the Affidavit, Mr. Sander proffers an ATF legal opinion to offset the
11 lack of a statutory crime for establishing probable cause for the search warrants for Rodmans 12 properties. He attests that an ATF position prohibits significant changes to registered 13 machineguns, adding that if this prohibition is violated, the machinegun becomes contraband 14 forever. 15 There is no authority for this legal interpretation and absolutely no basis whatsoever for 16 proclaiming such an absurdity under oath. No such legal principle or ATF Position exists. 17 The NFA does not prohibit or restrict changes to a registered machinegun, and ATF has no 18 published regulation regarding advice or guidance on changes to a registered machinegun. 19 Moreover, ATF has not published any ruling, notice, interpretation, policy, or guidance that 20 addresses the topic of machinegun modification. 21 Mr. Sander attests that his knowledge concerning changes to registered machineguns was 22 provided by officials of the ATF Firearms Technology Branch who told him that their 23 interpretation of law is ATFs official position, although Mr. Sander does not identify the 24 officials and does not provide the date or context of the conversation. With regard to the case at 25 hand, several hundreds of machineguns and suspected machineguns were seized by or 26 abandoned to ATF Special Agents. All were delivered to the Firearms Technology Branch 27 28
15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Laboratory, where ATF Firearms experts prepared official reports of findings and conclusions based on their examinations and tests. Nowhere in any the official reports is there a reference to an ATF official position that the NFA prohibits significant changes to registered machineguns. If ever there was such an ATF official position, as Mr. Sander claims, it was not known to anyone who might be affected by it, including the very employees responsible for detecting violations; the twenty or so Examiners in the National Firearms Act Branch who approve all applications to transfer machineguns. Since 1993, defendant Clark had applied to transfer thirty-four (34) machineguns that had been changed significantly. Each of the forms described extreme changes, and all were approved. Based on the foregoing discussion, a written ATF policy addressing changes to registered machineguns is non-existent. Thus, the ATF position cited by Mr. Sander is without any foundation. Even assuming that ATFs internal position held that significantly changing registered machineguns was prohibited, FFLs (such as defendant Rodman) potentially affected by it lacked access to this critical information. This is an egregious oversight, particularly since a primary responsibility of NFA Examiners is to ensure that a machinegun being transferred is registered in the national data base, the NFRTR. Defendant Clark did not attempt to obscure his extreme modifications, because he believed that such modifications were legal. Whatever Clarks reasons, the sad irony here is that Clarks belief was objectively reasonable given no guidance from ATF and was passed on to Rodman and others. It is well settled law that a person can not be convicted of a crime in the absence of a statute or regulation. [A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, (1983). See United States v. Varbel, 780 F.2d 758. 762-63 (9th Cir. 1986)
16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ARGUMENT The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. (Constitution of the United States; Amendment 4) The arguments set forth below are devoted to those portions of the Affidavit that can be applied to support a searh warrant for the Rodman residence and business. Indeed, the primary requirement for a search is to succinctly document violations of a U.S. Statute and to rationally articulate the specific evidence. Equally important, is for the application to particularity describe reasons to believe that certain items are evidence, fruits, or instrumentalities of a suspected crime. Finally, the warrant must give reasons for belief that the items to be seized are within the place to be searched. With regard to the Rodman residence or business, the Sander Affidavit fulfills none of the above requirements. To describe the Affidavit as a hard or complicated read is an understatement. It is a vague catch-all, with no theme and a murky context, with the end result being a disorganized narrative that lacks a succinct legal basis. Rather than establishing a crime or crimes, the Affidavit offers a choice of seventeen (17) violations of U.S. law. There is no factual underpinning to establish a probability that any of the items to be seized are evidence, fruits, or instrumentalities of any crime or that they would be found at the Rodman residence or business The Affidavit supports only a tentative probability that defendant Clark (FFL/SOT) in Arizona manufactured machineguns in violation of what is described as an ATF Position,; i.e., that a licensed manufacturer who significantly modifies a registered machinegun creates a new firearm in violation of 18 U.S.C. 922(o) and the modified machinegun is contraband forever. (Affidavit, para. 19) Even allowing that it is an ATF Position, it is not law and does not have the force of law. It may, however, be a workable theory for belief that a crime had occurred for probable cause purposes with regard to the person who modified the machinegun, defendant Clark.
17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Further, the Affidavit omits crucial facts about an ATF Position: 1) It is very doubtful that ATF has ever adopted such a position. Even if this were the case, such a position would be a substantial change, affecting a broad range of persons, and would have the force of law. Moreover, there is no legal basis for ATF to adopt such a position without complying with the most basic due process requirements of the Administrative Procedures Act (APA) before attempting to prosecute offenders; and 2) as noted earlier, defendant Clark significantly modified thirty-four (34) registered machineguns over a sixteen (16) year period and submitted separate applications to transfer each of them. The applications accurately described significant changes in caliber, barrel length and overall length. ATF approved each such application. An ATF approval of an Application to transfer is made under the authority of the United States, an exception to the 922(o) prohibition. The absence of future transfer restrictions on the form is an implied warranty by ATF that the machinegun is a pre-1986 transferrable machinegun, lawfully registered to the transferee identified on the form from the transferor, also identified on the form. ATFs approval of an application also carries with it a warranty that the transfer complied with the tax laws; either that the transfer taxes were paid or that the transfer was tax exempt. In actuality, no law nor regulation exists imposing any prohibition or restriction on changes to registered machineguns. Whether ATF has authority to take such a position as Mr. Sander claims, has never been adjudicated by any Court. The NFA does not specifically authorize modifications to registered machineguns; on the other hand, it does not prohibit them. Although agencies have discretion to fashion regulations to govern the statute, they are charged with administering, the Administrative Procedures Act requires agencies to articulate a rationale when they exceed their discretion, see 5 U.S.C. 706. Unfortunately, although ATF has been responsible for implementing 922(o) for more than twenty-six (26) years, it has not published a regulation regarding changes to a registered machinegun. Moreover, ATF has not published any ruling, notice, interpretation, policy, or
18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
guidance of any sort, by whatever name, that deals with the topic of modifications to registered machinegun and any variants. The fact that ATF ever adopted such a position without notice to anyone defies belief. Even if such a position were formalized and adopted, unless the information were disseminated more broadly, those whom it might potentially affect might well remain uninformed, including the employees responsible for approving machinegun transfers. As part of the approval process, a critical function of National Firearms Act Branch Examiners is to compare the description of the machinegun in NFRTR with the description of the same machinegun on the ATF form being processed. According to required ATF procedures if a discrepancy is discovered equalling more than 2 or 3 inches in barrel length or overall length, ATF is required to deny the application or returne it to the transferor for further explanation (ATF National Firearms Act Branch Standard Operating Procedures Training Manual) (Bates ROS 0016879 - ROS 0016914) Not one of defendant Clarks applications was denied or returned for explanation, although most forms showed changes from handgun ammunition to rifle ammunition and more than a 2 to 3 foot change in both barrel and overall lengths modifications that could not have been overlooked. At the same time, it is well settled law in the Ninth Circuit that a person can not be convicted of a crime in the absence of a statute or regulation. See United States v. Varbel, 780 F. 2d 758 (9th Cir. 1986). Narratives in the body of the Affidavit contain technically true statements which, when combined with erroneous law, omissions and the lack of context, had the effect of misleading the Maryland Magistrate Judge, causing him to improvidently issue the two warrants. Instead of providing any facts to support a probability that the things to be seized would be located within the buildings to be searched, the Affidavit incorporates a 4-page wish list of 34 categories of things to be seized (EXHIBIT A - Items to be seized). Consequently the warrants were issued on an application that was so lacking in facts as to render official belief in its existence unreasonable. In fact, the Affidavit - as application - is so bereft of probable cause that the officer submitting it or executing it cannot excuse his own default by pointing to the greater
19
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
incompetence of the magistrate. Malley v. Briggs, 475 U.S. 335, 344-45 (1986), citing United States v. Leon, 468 U.S. 897, 923 (1984) Buyer-seller transactions do not constitute a conspiracy. The only nexus between tentative violations of 922(o) in Arizona and the Rodman properties in Maryland is that a person licensed to buy and sell machineguns. The Affidavit points out that defendant Rodman, did in fact, buy thirteen (13) machineguns from defendant Clark. Both parties were in business to buy and sell machineguns for profit and were licensed to do so by ATF. The Affidavit pointedly failed to disclose that the most recent sale took place approximately four (4) or five (5) years before the Affidavit was prepared. Although the applications to transfer were all approved, Rodman received only twelve (12) of the machineguns that he purchased. He possessed them for varying periods and sold seven (7) of them which he transferred on ATF approved forms. He voluntarily abandoned five (5) to ATF. Each machinegun received by Rodman was the completion of a sales agreement with defendant Clark as seller and defendant Rodman as buyer. All payments were made on or about the time of sale. Each machinegun defendant Rodman received from defendant Clark included an approved ATF registration certificate describing the machinegun and warranting 1) that it had been lawfully manufactured, 2) that it was transferred under the authority of the United States, 3) that it was registered to Rodman in the NFRTR, and 4) that it was eligible to be transferred. The acquisition and disposition of each machinegun was entered into Rodmans required records. Those that defendant Rodman sold were transferred to persons qualified to possess them, and ATF approved the Application forms with the same warranties. There is no evidence or information in the Affidavit to establish that the sales resulted from any agreement beyond the normal buyer-seller relationship. Another substantial omission related to the Affidavit is the crucial fact that when preparing the Affidavit, Mr. Sander knew the exact locations of all thirtyfour (34) machineguns manufactured by defendant Clark. Mr. Sander knew with certainty that not one was possessed by Rodman on August 19, 2008. Certainly, no machineguns
20
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
manufactured by Clark could be found within defendant Rodmans home or business, and Mr. Sander never provided a reason why any item on the list of items to be seized would be, or could be, evidence; fruits; or instrumentalities of crime. Perhaps the most damaging information against Rodman is hearsay from a confidential informant which led Mr. Sander to conclude the following: 1. That Rodman was quite possibly involved in a conspiracy with Clark; 2. That unidentified other FFLs in Maryland, including Goldstein, might be involved with the conspiracy as well; 3. The scheme of the conspiracy was to make slight adjustments to the ATF National Firearms Act transfer paperwork (Forms 3 and 4) ... making sure a machinegun was transferred several times in order not to raise major red flags with the ATF National Firearms Act Branch ... (Affidavit, para 38) Mr. Sander does not illuminate the informants prior reliability, and there is nothing to indicate that he made any effort to corroborate the informants statements. Sander attests that the informant had personal knowledge of the topics discussed a statement that is highly unlikely. Mr. Sander omits the fact that the informant was then under ATF investigation for receiving, possessing and transferring unlawfully manufactured machineguns. Concerning the scheme to make slight adjustments to the Clark-modified machineguns, the Affidavit does not provide a single example of such manipulation, and statements to the contrary were meant to deceive the Magistrate Judge. To believe such a fantasy also demonstrates vast unfamiliarity with the regulations and processes of the National Firearms Act Branch. Documentation for each of the thirty-four (34) machineguns transferred by Clark over 16 years thoroughly and accurately described the changes, and there is no instance of even slight adjustments in the description of any machinegun in this case. Such a notion is shameless and readily contradicted by a cursory review of the registration histories provided in discovery. Mr. Sander embellishes the information with his own statements, based on numerous interviews with individuals, as
21
1 2 3 4 5 6
follows: 1. Both Goldstein and Rodman transferred one of these Model 1919-type machineguns (referring to Clark modified machineguns) to non-FFLs; and in doing so, violated the federal criminal code. 2. Clark, Rodman and Goldstein collaborated to deceive the ATF National Firearms Act Branch by making slight and subtle changes to ATF Forms 3 or 4. In order not to raise red flags, these modifications to the machinegun descriptions were made slowly and subtly to effect changes in the description of the machineguns. (Affidavit, paras. 40, 41) Mr. Sander further embellishes the information believed to have been received at the
7 same time from the same confidential informant described in paragraph 38: 8 1. Rodman admittedly knew (sic.) exactly what Clark was doing; 9 10 11 12 13 14 15 Other examples of false statements by Mr. Sander appear in paragraphs 27 and 45, where 16 he purports to summarize the registration history of machineguns numbers 820101541, 17 A6042075, A6041867 and A6042028. Mr. Sander avers that A6042028, was manufactured as a 18 receiver and was transferred a few times before being transferred to Clark as a receiver. Mr. 19 Sander falsely avers that the other three machine guns were manufactured as such, transferred 20 several times without changes before being transferred to Clark as machineguns. These false 21 statements are material misrepresentations intended to mislead the reader to concluding that no 22 modifications were made in the machineguns before they were transferred to Clark. 23 DISTRICT OF MARYLAND SEARCH WARRANTS 08-2630-JKB AND 08-2631-JKB 24 Based on a single Affidavit prepared by Special Agent Patrick Sander, on August 19, 25 2008, James K. Bredar, United States Magistrate Judge, U.S. District Court, District of Maryland 26 issued search warrants for six separate, non-adjacent properties within the State of Maryland 27 28
2. Rodman and Goldstein conspired with Clark for years by defrauding innocent individuals into believing that they were purchasing legal machineguns; 3. Goldstein assisted Rodman and Clark in this conspiracy [so that they all could maximize profits and minimize the risk] that the machineguns would be discovered as illegal contraband; 4. Sander believes that all of these individuals [Goldstein, Rodman and Clark] conspired together to increase profits, defraud the government and deceive innocent individuals and that all ... have falsified information on ATF Transfer Forms 3 and 4 in order to keep their fraud scheme prosperous. (Affidavit, para 66)
22
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
based on a single affidavit prepared by ATF Special Agent Patrick Sander. At the time, one property, 4907 Lisborough Terrace, Bowie, MD 20720, was the residence of defendant Randolph Rodman and his wife, Gail Rodman. Another property, 910 Philadelphia Avenue, Silver Spring, MD 20910, was the location of R & S Arms, a firearms business operated by defendant Rodman for almost twenty (20) years. Concurrent with the issuance of the warrant, the Magistrate Judge sealed it and all attachments. Although the warrant contains no language incorporating the Affidavit, the Affidavit states that its Attachment B (List of Items to be Seized) is incorporated by reference. That being the case, it is reasonable to conclude that none of the officers executing the warrant were not equipped with either the Affidavit or a list of items to be seized. EXECUTION OF Search Warrant 08-2630-JKB: THE RODMAN RESIDENCE The search of the Rodman home began at approximately 7:30 a.m. on the morning of August 21, 2008, when several officers arrived, rang the door bell, and were allowed to enter by Gail Rodman, wife of defendant Rodman. Although the officers made a general introduction, they did not disclose they had a warrant to search, nor did they provide a copy of the Affidavit or Attachment B which listed items to be seized. Once inside the residence, the officers asked about the location within the home of specific items; e.g., financial records, files, and firearms. These officers were soon joined by others; and throughout the day additional personnel filtered into and out of the home. Later that afternoon, while the search was still underway, Mrs. Rodman observed that a medium sized moving van had arrived in front of her home. The search continued throughout the day before officers began loading property into the van. It was only before departing at about 8:00 p.m. that they provided Mrs. Rodman with a copy of the face sheet of the search warrant and a copy of the inventory of property taken. (The inventory was a totally illegible copy.) Officers did not provide Mrs. Rodman with copies of either the Affidavit or Attachment B. Property seized during the search consisted of twenty (20) firearms, ten (10) bankers
23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
boxes of the Rodmans personal documents; e.g., financial, banking, and insurance statements and bills; childrens personal records; architectural drawings for the Rodmans new home; family photographs, two (2) cell phones and one (1) laptop computer. (The cell phones, the laptop computer and some of the childrens records were returned later.) EXECUTION OF Search Warrant 08-2631-JKB: THE RODMAN BUSINESS Search Warrant 08-2631-JKB describes the search location as a two-story building on a large open lot surrounded by a chain link fence. (The property, owned by Rodman, was located in a densely populated urban area.) The building housed two separate businesses a patently obvious fact that neither the warrant, its Attachments nor the Affidavit disclose. The Auto Shoppe is the primary occupant of the building and occupies the entire first floor with working bays, storage space and a small office. There is a large fenced in lot used to store vehicles brought to the business for repair and subsequent pick-up. There are prominent signs to identify this Mercedes repair business. For security reasons, there is nothing observable about the property to indicate that a firearms business is also located within the building. The second business on the property, R & S Arms, occupies the entire second floor of the building. Its configuration consists of a large open office, space for records storage and a large walk-in vault for securing a large inventory of firearms and firearms awaiting transfer, repair, or pick up. Although this business and the area it occupies should have been the object of the search warrant, the Affidavit fails to even mention the existence of another business within the building. Thus, the warrant authorized a search of the entire building and seizure everything described in Affidavit Attachment B. Among the items seized were three (3) computers, six (6) large industrial machines (a lathe, a mill/drill machine, a drill press, a belt sanding machine and two (2) engraving machines), all of which necessitated removal by fork lift and approximately thirty to forty (30 to 40) boxes, of the total of fifty-five (55) seized at the property. Confiscated boxes contained such papers as records, titles, correspondence, etc., all easily recognizable as auto repair business property. (The
24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
computers were later returned after having been fully scrubbed by ATF.) As noted earlier, execution of the warrant to search the business property began on the morning of August 21, 2008, with the arrival of ATF Special Agents. Throughout the day there was a steady stream of agents, police officers, and other miscellaneous government employees, most of whom were not authorized to perform law enforcement duties such as executing search warrants or seizing evidence. Later that same day, a large tractor trailer arrived, with the search continuing until early evening, at which time officers began loading business property into the trailer. At the conclusion of the search, defendant Rodman was provided with a copy of the search warrant and an extremely general inventory of the property taken. Defendant Rodman was present when the ATF arrived. He was searched and Agents seized $5,347.00 in U.S. bills from his person. That amount, combined with $30,977 in bills seized from the firearms vault resulted in a total seizure of $36,324.008 in U.S. currency. The currency taken from the firearms vault was in an envelope that also contained receipts and other notes relating to the money. Although, the currency was returned, the receipts in the envelope were lost by ATF and have never been returned. In addition, although ATF agents specifically informed defendant Rodman that he was not under arrest before being taken to the buildings second floor, he was placed in a room under an armed ATF guard for the remainder of the day. Several times during the day, defendant Rodman was permitted to use the bathroom, each time he was escorted by an ATF armed guard. In addition to the earliier enumeration of property taken, ATF agents seized twenty-six (26) machineguns, two (2) firearms parts kits, an upper receiver and registration papers for all NFA firearms. Although registration papers were elsewhere on the premises, in a white 3-inch loose leaf binder, their location did not deter ATF from taking them. FORFEITURES In a letter to defendant Rodman, dated September 29, 2008, ATF initiated Administrative
The currency was returned but not without considerable legal argument. 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Forfeiture proceedings against forty-six (46) National Firearms Act firearms, and six (6) pieces of industrial machinery, taken when executing the two search warrants (28 were seized from the business and 18 from the residence). The ATF letter alleges that the seized items were used or acquired in violation of 26 U.S.C. 5872. Defendant Rodman filed a timely claim, demanded a judicial forfeiture and posted a $5,000.00 cost bond with ATF. As noted earlier, the six (6) items of industrial machinery included a lathe, a mill/drill machine, a drill press, a belt sanding machine and 2 engraving machines. With specific regard to the industrial machinery, the governments reliance on 26 U.S.C. 5872 as authority for forfeiture of the machinery is misplaced. Title 26 of the U.S. Code, 5872 states that (a) any firearm involved in any violation of this chapter shall be subject to seizure and forfeiture and (b) all provisions of the Internal Revenue Code are extended and apply to articles taxed under this chapter. (Emphasis added) Obviously, the machines are not firearms and are not taxed articles. Moreover, the government lacked authority to seize the machinery and retain it for either evidence (the Affidavit contains no evidence or information that the industrial machines were evidence, fruits of instrumentalities of any crime, nor did the Affidavit authorize the seizure). In any event, machinery cannot be forfeited under the statute cited. Counsel made a written request to ATF; however, the agency refused without citing any points or authority supporting its position. Also under Search Warrant 08-2631JKB, ATF seized from the business portion of R&S Arms the following papers and documents (originals or copies have been returned or provided): < four (4) boxes of miscellaneous ATF paperwork, one of which contained six (6) Acquisition and Disposition (A & D) books, plus one repair A & D book. (The remaining boxes were described with no more specificity than miscellaneous ATF paperwork); one (1) bag containing the Federal Firearms License (8-52-031-07-OL-36956) and current Special Occupational Tax Return (52-1792125) to engage in the business
<
26
1 2 3 <
of dealing in firearms other than destructive devices as defined in the National Firearms Act (NFA) 26 U.S.C. 58459. During the search of defendant Rodmans firearms business, ATF examined
approximately 100 or so registered NFA firearms and did not seize them. Most were within the 4 R & S Arms vault at the licensed premises. Obviously, the 100 or so machineguns were not 5 seized because ATF confirmed during the search that they were lawfully registered to defendant 6 Rodman/R & S Arms and in possession of the registrant as required by law, and entered in 7 Rodmans required records. 8 Presumably, the searchers verified the registered status of each machinegun by viewing 9 the registration papers at the premises. In addition, agents seized all registration certificates; and, 10 despite numerous requests, never returned them. Many requests for copies were denied. ATFs 11 seizures of the only proof of registration for lawfully possessed NFA machineguns (without 12 taking custody of the machineguns and without leaving a receipt) is totally mindless. These 13 papers are the only means available for defendant Rodman to establish that the firearms in his 14 possession are registered and lawful. Thus, the consequence of ATFs seizure of the registration 15 papers, while not seizing one hundred (100) or so machineguns, places defendant Rodman in 16 continuing violation of 26 U.S.C. 5841(e), which requires a person possessing a firearm 17 registered by this section to retain proof of registration at all times. Failure to comply with any 18 provision of Chapter 53 makes the person possessing these firearms vulnerable to imprisonment 19 for up to ten (10) years on federal violations and is also vulnerable to State of Maryland charges.. 20 The seizures under Search Warrant 08-2631 JKB from defendant Rodmans Mercedes21 Benz auto repair business (the Auto Shoppe), included the following papers and documents: 22 23 24 25 26 27 28 The term firearm as defined in the NFA bears no semblance to the common meaning of the term. Generally speaking, except for including easily concealable items that fire a projectile, such as sawed-off shotguns and rifles all categories of ordinary rifles, pistols and shotguns are excluded from its meaning. Included within the NFAs definition are artillery pieces, mines, bombs, grenades, rockets and destructive devices.
27
1 2
one (1) pallet containing twenty-eight (28) boxes described with no more specificity than miscellaneous documents; one (1) pallet containing twenty-two (22) boxes described with no more specificity than miscellaneous documents.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATF returned ten (10) of the fifty (50) boxes of papers, records and documents seized from the auto repair business. Remaining in government custody are all manner of archived records; i.e., financial, banking, insurance, bills, receipts, accounts receivable, accounts payable, vehicle titles, and commercial legal proceedings. Of particular note, Mr. Rodman filed a Motion for Return of Property in the District of Maryland, and the Government was ordered to review property seized within one year of its seizure and return all that lacked evidentiary value. As of this date, nothing has been returned in response to the Order. WARRANTS SHOULD BE DECLARED INVALID In summary, both warrants to search the Rodman residence and business are invalid. The Affidavit underlying the search and seizure relies on an interpretation of law based on supposition, speculation and conjecture and lacks any evidence or information to support probable cause for the issuance of the two search warrants (not to mention the other four search warrants). Further, when Attachment B is applied (as noted earlier, the Affidavit incorporates Attachment B by reference), the warrants became general warrants to rummage through the Rodman properties at will and seize anything and everything. There are no discernible limits to what could be seized as authorized by Attachment B; the officers serving the warrant took full advantage of that mandate. The warrants to search defendant Rodmans home and business reflect adversely on the ethics and professional responsibility of those involved in the review and approval processes within our Criminal Justice system. The abject failure of the Affidavit to support probable cause and particularly to describe specific items to be seized should not be a closed issue. The Affidavit was prepared by a Special Agent with sixteen (16) years of federal law enforcement experience; it was reviewed and approved at all levels of ATFs supervisory and management in
28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Phoenix and by attorneys from the ATF Office of Chief Counsel before being referred to federal prosecutors. The Affidavit was then reviewed in the Phoenix Office of the United States Attorney (OUSA), reviewed, approved and referred to AUSA Jason Weinstein, then the Chief AUSA for Violent Crimes in the District of Maryland (Mr. Weinstein has since been appointed to his current position as Deputy Assistant Attorney General of the Criminal Division of the U.S. Department of Justice.) One has to ask if this detailed review procedure ensured anything other than that rubber stamps were well inked. With specific regard to defendant Rodmans case, the practice of using a single Affidavit to establish probable cause for six non-adjacent, remote properties is most unusual. Doing so, achieves no efficiency, serves no purpose and is unnecessary disfavored by most USAOs. Further, although the use of such an Affidavit is not proscribed by courts, per se, its very nature requires extreme and thoughtful scrutiny. Such an affidavit transforms a simple, straightforward probable cause review into an endless nightmare, and evokes over-reaching, bias, and prejudice, in the end polluting the review process of an otherwise neutral and detached magistrate. The practice should be condemned or severely limited to extreme unforeseen circumstances. Beyond the general use of a single Affidavit, the Affidavit here contains many pages of narrative without a plan. For example, paragraphs drift along aimlessly. Very little of the content relates specifically to the Rodman properties. Scattered throughout are deliberate misrepresentations, intentionally misleading comments and gratuitous ad hominem comments. Viewed in its totality, the Rodman Affidavit hints at but does not identify tentative firearms violations, violations that one might be connected with either the Rodman home or business, or with some other property. Seriously lacking is specific evidence to unde-gird the showing of probable cause. Similarly, the Affidavit presents no facts to establish a nexus between items subject to seizure and their physical location. Mr. Sanders narrative co-mingles multiple persons with multiple locations. Searches often disappear into a fog, a fog within which agents, machineguns, boxes, trucks and vans come and go. At a practical level, analyzing the text
29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
of the Affidavit becomes extremely complicated when trying to determine the applicability of the good faith exception to the exclusionary rule for an invalid search warrant. Certainly, courts will ask not what the executing officer believed, or could have believed, but instead, whether a reasonably well trained officer would have known that the search was illegal, irrespective of the magistrates authorization. The only answer is that every well trained officer, federal, state, county, and muncipal would have known that the search was illegal and the seizures were illegal. United States v. Leon,468 U.S. 897, 919-922 (1984), United States v. Clark, 31 F. 3rd 881, 835 (9th Cir. 1994), United States v. Luong, 470 F. 3rd 898, 902, 903 (9th Cir. 2006) AFFIDAVIT SECTION: PERMISSION TO SEIZE COMPUTER SYSTEMS AND PERIPHERALS: AND AFFIDAVIT SECTION: PROCEDURE FOR SEARCHING COMPUTER EVIDENCE: Two sections of the Affidavit, Permissions to Seize Computer Systems and Peripherals and Procedure for Searching Computer Evidence provide minimal facts; and instead, fill seven pages with pure drivel. Neither section presents information relevant to the issuance of a legally adequate search warrant. The first section describes the general capabilities of computers and their uses to store vast amounts of information. It appears that this information was copied from someones lesson to instruct on the wonders of electronic data. There is no basis for anyone to understand why Mr. Sander thought this would be of interest to anyone reviewing the Affidavit for probable cause purposes. The second section describes the remarkable thoroughness of law enforcement agencies when searching computers for the presence of evidence. This information could easily have been taken from a basic textbook in a Criminal Justice course at some community college or technical high school. The seven pages devoted to these two topics shed no light whatever on the real-world requirements for issuing a warrant to search; e.g., searching the premises to determine whether there were computers at the Rodman properties; and if so, whether they were used to store evidence of criminal conduct. Mr. Sander again fails to provide any explanation for the presence of this worthless and wasteful static.
30
1 2 3 4 5 6
AFFIDAVIT SECTION: CONCLUSION Mr. Sanders concluding section is comprised of 7 more pages of non-specific, boilerplate language and meaningless platitudes described as findings. Typical of these findings are such trite clauses as: that individuals who purchase or possess firearms tend to keep firearms in their residences for long periods of time; that they tend to keep parts/kits in their residences and businesses for long periods of time as well; that they tend to store records detailing acquisition and dispositions of these firearms in the form of receipts, ledgers, pay and owe sheets and handwritten notes inside of their residence and business; that they tend to keep records of sales/transactions on their computer hard drives, flash drives, or other databases which are found in their residence and business; (Omits to disclose that all records of defendant Rodmans firearms sales, transactions, acquisitions, repairs, transfers and dispositions were kept in handwritten form, a fact which Mr. Sander knew); that they often store firearms and firearms parts kits in the residences of relatives in order to avoid detection by law enforcement; that they will frequently realize that law enforcement is looking to obtain evidence against them to make inquiries about such evidence, so these individuals will in turn hide or move their firearms to a place of safekeeping which could be a residence of a relative, especially one who lives in close proximity to the target individual; and, that they will, on many occasions, use several different addresses for businesses and residences alike, in order to keep maintain property or personal belongings in different locations and not all in one place making it more difficult to detect by law enforcement.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 -
Mr. Sander closes by submitting that there is probable cause to believe that the items 21 described in Rodman Affidavit Attachment B will be found on the Rodman premises and [that 22 they are] evidence, fruits and instrumentalities inter alia the aforementioned violations. Quite 23 honestly, the issues addressed in Affidavit section are hardly the burning issues of search and 24 seizure law. 25 26 27 28
31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PROBABLE CAUSE AND PARTICULARITY: It is well settled that the issuance of a warrant to search requires evidence or credible information, under Oath or affirmation, which would warrant a man of reasonable caution in the belief that a felony has been committed and must be weighed by the facts of the particular case. Wong Sun v. United States, 371 U.S. 471 (1963). The searches of the Rodman residence and business were not reasonable because they were not justified by probable cause; the warrants were issued improvidently and were invalid. (1) the affidavit/application for the issuance of a search warrant so significantly lacked indicia of probable cause that belief in its existence was entirely unreasonable. Leon, Ibid at 923, quoting Brown v. Illinois, 422 U.S. 590, 610-11(1975); and, (2) the warrant was unreasonably broad and lacked specificity. See, United States v. Cardwell, 680 F. 2nd 75, 77-78 (9th Cir. 1982) (search warrant was not sufficiently particular because it contained no guidelines to aid officers in determining what may or may not constitute evidence of a violation of the statute.) The affidavit supporting the warrant for the Rodman residence merely listed 17 U.S. crimes against the United States without demonstrating any facts or circumstances supporting a theory that defendant Rodman violated any of them or that any evidence, fruits or instrumentalities existed, or that such evidence would be found within the properties to be searched. Moreover, the Affidavit does not identify anyone, excepting defendant Clark, who may have violated any U.S. law. That matter was still under investigation without a law or regulation prohibiting Clarks changes to registered receivers. Mr. Sander believes and avers that there is an ATF Official Position, to the effect that a significant change to a registered machinegun constitutes manufacture of a new machinegun. However, there is no credible information to support such a belief. There is no law or regulation prohibiting changes, ATF has not published anything resembling that position and there is no evidence of internal ATF guidance regarding changes in the twenty-five (25) years of ATF experience implementing 922(o).
32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The term manufacture is undefined in statute and regulation, and ATF has not published any ruling, information notice, legal interpretation, or guidance on the subject. For probable cause purposes, in listing 17 criminal offenses, Mr. Sander does not delineate which statute, if any, was violated by which person and which property (within the four single spaced pages in Attachment B) is present at which of the six locations A copy of the warrants Attachment B is appended to this filing as EXHIBIT 1. Further, whether modifications of a registered machinegun constitutes the manufacture of a new machinegun is not a settled question of law. Mr. Sanders simplistic solution in Paragraph 19 is entirely without merit. When applying for the search warrant and at all times during the ATF criminal investigation, this was the ultimate issue. related to the investigation: these are similarities between a criminal violation of 18 U.S.C. 922(o) and lawful conduct by an FFL/SOT engaging in the business of manufacturing and dealing in machineguns. Mr. Sander omitted critical information concerning defendant Rodmans possession of machineguns purchased from Clark. When preparing the Affidavit, Mr. Sander had actual knowledge that defendant Rodman no longer possessed any of the machineguns transferred to him from defendant Clark. That fact was omitted. Mr. Sander knew from review of the NFRTR registration records that Rodman had received 12 machineguns from Clark. All of them were accounted for and none were in the possession of Rodman. He sold seven and transferred them under ATF approved forms. Each of machinegun thus transferred to third parties was in ATFs custody or would soon be, since their exact whereabouts and registered owners were known to ATF. The remaining 5 machineguns received by Rodman were voluntarily abandoned to ATF Special Agents on May 2, 2008, and were in the custody of ATF. The machinegun that was never shipped by defendant Clark, 820101541, was already in the custody of ATF. It had been seized by at Clarks business on March 20, 2008. These critical facts were omitted from the Affidavit. In United States v. Crozier, 777 F. 2nd 1376, 1381 (9th Cir. 1985) a warrant that authorized
33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
seizure of evidence of a violation of 21 U.S.C. 841, 846" was held to be overbroad. This Affidavit suffers from the other extreme, listing 17 statutory offenses and six separate locations under the control of at least 5 listed persons. Other than the cavalier statement that he knows that they are crimes, Mr. Sander says no more about them, never alleging or even speculating that any listed statutes were violated. The reader is left to sort the inter-relationships between persons, property, lawful conduct, criminal activity and classify which crime may have been violated and the relationship of the crime to each of six separate locations. THE WARRANTS ARE INVALID DESPITE THE MAGISTRATE JUDGES AUTHORIZATION BECAUSE THEIR ISSUANCE WAS OBJECTIVELY UNREASONABLE In United States v. Leon, 468 U.S. 897, 914 (1984), the Supreme Court recognized that reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause for a warrant, and that inadequate probable cause does not necessarily render an officers reliance unreasonable because the existence of probable cause is often a difficult determination. Ortiz v. Van Auken, 887 F. 2nd 1366, 1370-71 (9th Cir. 1989). When reasonable minds differ as to the existence of probable cause, approval of a warrant by a government attorney and ratification by a neutral and detached magistrate usually establishes objectively reasonable reliance. Id., at 1369-70. Courts treat magistrates as more qualified than police officers to make determinations of probable cause. See, e.g. [United States v. Malley, 475 U.S. at 346 n.9. Officers lose their shield of qualified immunity ... where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. Id. at 344-45 (citing Leon at 923. Thus, evidence obtained under an invalid warrant should be suppressed if the officers obtaining the warrant and performing the search did not rely on the warrants validity. Id. at 922 n.23 ( 1984); See also, United States v. Mendonsa, 989 F. 2nd 366, 369 (9th Cir. 1993). It is the objective reasonableness of a well-trained officer that must be weighed in deciding whether this particular search was illegal and that test is applied not only to
34
1 2 3 4 5 6
the officers who executed the warrant, but also to the officer who provided the affidavit upon which the warrant was based. When a warrant is so bereft of probable cause that official reliance is unreasonable, such as here, the officer executing the warrant cannot excuse his own default by pointing to the greater incompetence of the magistrate. Leon, id. at 346 n. 9. AFFIANT VIOLATED THE CONFIDENTIALITY REQUIREMENTS OF 26 U.S.C. 6103(h) IN WRONGFULLY DISCLOSING TAX RETURN INFORMATION 26 U.S.C. 6103(a) (1) provides that tax returns and tax return information shall be
7 confidential ...; and that no officer or employee of the United States, Shall disclose any return or 8 return information obtained by him in any manner in connection with his service as such an 9 officer or an employee or otherwise under the provisions of this section; Subsection (b) defines 10 certain terms: (1) RETURN means any tax or information return, ... which is filed with the 11 Secretary (of the Treasury) by or on behalf of any person ...; and (2) RETURN INFORMATION 12 means any other data ... received by the Secretary with respect to a return ...; and TAXPAYER 13 RETURN INFORMATION means return information as defined in paragraph (2) which is filed 14 with or furnished to the Secretary by or on behalf of the taxpayer to whom such return 15 information relates. 16 Thus, 26 U.S.C. 6103(b) defines tax administration as the administration, 17 management, conduct, direction and supervision of the execution and application of the Internal 18 Revenue laws... The search warrants for defendant Rodmans residence was not a tax 19 administration matter but rather a criminal one, even though tax returns and tax information are 20 within the Affidavit. 21 The Affidavit was signed in the presence of a U.S. Magistrate Judge on August 19, 2008, 22 almost two years before the grand jury returned a true bill in CR-10-1047 ROS. Thus, the 23 government failed to follow the dictates of 6103(i) which sets forth detailed procedures for the 24 disclosure of returns and return information in non-tax administration prosecutions. The 25 procedures require a Court Order to the Secretary of the Treasury to disclose the records to non26 Treasury employees prior to any disclosures taking place. If the government has complied with 27 28
35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
the mandates of 6103, it has not been disclosed to defendants. Given the plethora of justifications delineated above, Defendant Rodman, requests the Court to quash the warrants for Rodmans business and residence and suppress the use as evidence at trial of all property and its derivatives and the use of all evidence derived from leads obtained in violation of the 6103(a) of the Tax Code. CONCLUSION Also for the reasons above, and for others which may be known to the Court, Defendant Rodman requests an Order quashing the warrant, vacating the Administrative Forfeiture Proceedings pending against 17 firearms and suppressing as evidence at trial and leads to seized under the warrant. Defendant also requests the return of all property seized in executing the defective search warrants. Further, Defendant requests a Franks hearing on the Affidavit and also a Kastigar hearing, if necessary, to determine if the government has an untainted source for the evidence it intends to use in the prosecution of CR-10-1047 ROS. See Kastigar v. United States, 406 U.S. 441 (1972). Respectfully submitted,
Dated this 14th day of September, 2012
s/Robert E. Sanders Robert E. Sanders Counsel for Randolph B. Rodman Pro hac vice 109 Candlewyck Drive Winston-Salem, NC 27104 Phone: 336.659.2999 Cell: 336.671.0072 Email: gunlaw@triad.rr.com
36
1 2 CERTIFICATE OF SERVICE 3 I HEREBY CERTIFY that on September 14, 2012, I electronically transmitted the 4 attached document to the Clerks Office Using the ECF System for filing and transmittal of a 5 Notice of Electronic Filing to the following ECF registrants: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Robert E. Sanders Robert E. Sanders Counsel for Randolph Rodman 109 Candlewood Drive Winston-Salem, NC 27104 Phone: 336.659.2999 Fax: 336.765.9950 E-mail: gunlaw@triad.rr.com Kathy Jo Lemke Gregory A. Bartolomei Loyd C. Tate Joseph R. Conte Michael J. Smith William Foreman Frederick R. Petti kathy.lemke@usdoj.gov gregory_martolomei@fd.org Itate@bylawyers.com dcgunlaw@gmail.com gonzalezandsmith@aol.com william.forman@azbar.org fpetti@pettibriones.com

Motion To Suppress Evidence

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Motion To Suppress Evidence

Uploaded by

Copyright:

Available Formats

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 1 of 37

UNITED STATES DISTRICT COURT for the DISTRICT OF ARIZONA

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 2 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 3 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 4 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 5 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 6 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 7 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 8 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 9 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 10 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 11 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 12 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 13 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 14 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 15 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 16 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 17 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 18 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 19 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 20 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 21 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 22 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 23 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 24 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 25 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 26 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 27 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 28 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 29 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 30 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 31 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 32 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 33 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 34 of 37

MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 35 of 37

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 36 of 37

Dated this 14th day of September, 2012

MOT SUPPRESS FINAL 091412.wpd