This analysis came to David Codrea and Mike Vanderboegh from a current or retired ATF agent and is being released simultaneously here at Sipsey Street Irregulars and David's War on Guns and National Gun Rights Examiner column. The original document has been copied into this form to prevent it being traced.
Note: "TIII" referenced in the text is shorthand for Title III Electronic Surveillance.
The Wiretap Act regulates the collection of actual content of wire and electronic communications. Codified in 18 U.S.C. §§ 2510-2522, the Wiretap Act was first passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and is generally known as "Title III". Prior to the 1986 amendment by Title I of the ECPA, it covered only wire and oral communications. Title I of the ECPA extended that coverage to electronic communications.
More at: http://ilt.eff.org/index.php/Privacy:_Wiretap_Act
OK, I can’t believe this is even necessary but since no one else seems to have done it? Let us examine what we know through open source material…
On January 25th, 2011, ATF Phoenix and the United States Attorney’s Office – District of Arizona held a press conference where they proudly displayed their 53 count “Jaime Avila Indictment” as a trophy to their exhaustive efforts in combating the flow of U.S. weapons to Mexico. (A copy of the press release and the indictment is available at: http://www.justice.gov/usao/az/ - “Press Room” under “2011 Archives.”)
Some of ATF’s sworn assertion in the case:
“15. Between September of 2009 and through December of 2010, defendants fraudulently and knowingly exported and sent firearms from the United States to Mexico contrary to the laws and regulations of the United States.”
“16. Between September of 2009 and through December of 2010, defendants fraudulently and knowingly received, concealed, bought, sold, and facilitated the transportation, concealment, and sale of firearms prior to exportation, knowing the firearms were intended for exportation contrary to the laws and regulations of the United States.”
“As part of the conspiracy, members of the conspiracy both known and unknown to the grand jury shipped, transported, and exported firearms from the United States to Mexico.”
As we all know, the life of the conspiracy does not automatically reflect when ATF’s investigation began. So when did it?
“28. On or about November 19, 2009, prior to being pulled over by police, HECTOR ROLANDO CARLON attempted to dispose of an FN Herstal 5.7mm pistol purchased on November 17,2009, by JOSE ANGEL POLANCO.”
“99. On December 8, 2009, SEAN CHRISTOPHER STEWARD purchased forty AK-47 type rifle from FFL Lone Wolf Trading Company, Glendale, Arizona, and during the course of such purchases falsely represented on ATF Form 4473 that he was the actual purchaser of the firearms. On December 9,2009, nine of the AK-47 type rifles were found by Douglas, Arizona, police officers in the course of a vehicle stop, concealed in the bumper of a car.”
Perhaps, but it may have just have been a couple of good road officers doing their job? But what about…
“36. On December 8, 2009, a male caller using a telephone number utilized by MANUEL FABIAN CELIS-ACOSTA called FFL Lone Wolf Trading Company, Glendale, Arizona, to inquire as to the number ofAK-47 type rifles in stock. Forty-five minutes after this call, on the morning of December 8, 2009, SEAN CHRISTOPHER STEWARD arrived at Lone Wolf and purchased twentyAK-47 type rifles which he transported to an auto auction business in Phoenix, Arizona, and loaded into another vehicle or vehicles.
37. On the evening of December 8, 2009, SEAN CHRISTOPHER STEWARD returned to Lone Wolf Trading Company and purchased an additional twenty AK-47 type rifles. SEAN CHRISTOPHER STEWARD loaded the rifles into a white Nissan Titan in which MANUEL FABIAN CELIS-ACOSTA was a passenger. This vehicle was driven to CELIS ACOSTA's residence where the rifles were unloaded.”
Sounds like active investigation to me. How else do we learn the locations, phone calls, times, vehicles, passengers and the drivers? It doesn’t read like statements from a CI or even an historical account from someone directly involved. And remember, the FFL has already released a statement declaring that he was fully cooperating with ATF in this investigation. So at least by November, 2009, this was an active investigation.
Was the ATF doing active surveillance on members of this conspiracy?
“51. On or about August 19, 2010, JONATHANEARVIN FERNANDEZ purchased nine AK-47 type rifles from Lone Wolf Trading Company, and during the course of such purchase falsely represented on ATF Form 4473 that he was the actual purchaser of the firearms. After purchasing the firearms, FERNANDEZ and DANNY CRUZ MORONES, riding with FERNANDEZ, attempted to evade agents and officers conducting surveillance.”
Although this is the only time that it appears in the affidavit, we can be certain that it is not the only time it was done. What else was going on…
“81. On or about May 28, 2010, URIEL PATINO received a .308 caliber rifle from FFL Gunnet, Peoria, Arizona, at MANUEL FABIAN CELIS-ACOSTA's instruction, and during the course of such transfer falsely represented on ATF Form 4473 that he was the actual purchaser of the firearms. After receiving the rifle, URIEL PATINO spoke with MANUEL FABIAN CELIS-ACOSTA by phone and MANUEL FABIAN CELIS-ACOSTA instructs URIEL PATINO to deliver the rifle to MANUEL FABIAN CELIS-ACOSTA's residence.”
“67. On or about July 2, 2010, in a telephone conversation with ALFREDO CELIS, MANUEL FABIAN CELIS-ACOSTA directed ALFREDO CELIS to take steps to recover twenty AK-47 type rifles seized by police on or about June 30, 2010.”
“93. On or about July 8, 2010, MANUEL FABIAN CELIS-ACOSTA and FRANCISCO JAVIER PONCE spoke on the telephone and MANUEL FABIAN CELIS-ACOSTA arranged an additional straw purchase for FRANCISCO JAVIER PONCE by URIEL PATINO.”
Can anyone say “T-III”? (Interesting note: Every agent knows that only Main Justice (DOJ – Criminal) is the final authorization hurdle for any T-III, spin-off, or renewal. They have to be briefed on the case and no affidavit can be submitted to the court without their review and authorization.)
Now, what about the person whose names titles this indictment, Jaime Avila?
“55. On or before November 24, 2009, JUAN JOSE MARTINEZ-GONZALEZ and URIEL PATINO introduced JAIME AVILA Jr. into the conspiracy to purchase firearms. On or about November 24, 2009, PATINO accompanied JAIME AVILA Jr. into Lone Wolf Trading Company while AVILA Jr. purchased firearms for the conspiracy.”
“25. On or about January 16, 2010, JAIME AVILA, Jr. purchased three AK-47 type firearms from FFL Lone Wolf Trading Company, Glendale, Arizona, and during the course of such purchase falsely represented on ATF Form 4473 that he was the actual purchaser of the firearms.”
Avila is in no way the most culpable for firearms purchased according to the indictment. Many others have him beaten in both the number of purchases and amount of firearms trafficked. Why? Avila isn’t even charged in the most serious counts of the indictment. Why? Most striking is that on January 25th, 2011, while the ATF was serving the “Avila Indictment” and preparing for the press conference to follow – Avila wasn’t even arrested in the big roundup. Why? Well, a simple Pacer search (the Federal Courts electronic document system / available to anyone via the internet) reveals that Jaime Avila Jr. was already in jail. The court records clearly show how Avila was arrested during the early morning (just after midnight) of Dec. 16th, 2010, by Phoenix ATF agents for lying on 4473’s. So why on Dec 15th, 2010 did ATF feel the need to rush out and arrest Avila, on a hurried criminal complaint (as opposed to the proper method of indictment) after knowing of his trafficking activities, watching him and his co-conspirators, listening to their phones, and investigating them for nearly the past 14 months? What happened on Dec. 15th, 2010? Why was Avila arrested on a criminal complaint, indicted on January 11th, 2011, and then re-indicted on January 19th, 2011? (2-10-MJ-00629MHB, 2-11-CR-00065-GMS, and 2-11-CR-00126-JAT) Why was an indictment and round-up named after him when he had already been in jail for over a month?
And lastly, what about the indictment in general? Although in no way does it have to state everything known in or about the case, it does raise some interesting questions. There are 81 Overt Acts that occurred “Between September of 2009 and through December of 2010” which are specifically detailed:
“110. The factual allegations in paragraphs 24 to 105 of the Indictment are incorporated by reference and re-alleged as though fully set forth herein.”
The last one listed is for August 19th, 2010. What, if anything has been done between then and the January 25th round-up? Why wait so long to indict? In the indictment’s money laundering section, albeit in no way all inclusive, it list $104,251.00 as being spent by conspirators at the one FFL on record for cooperating with the investigation. Nowhere in the indictment nor the press releases is there mentioned any seizure of that money? Furthermore, contained in the 81 overt acts there is detailed the many firearms purchases which, when read and added together, total 717 firearms. The same 81 acts only describe the recovery of 123 firearms. (Note, I may have missed one here or there for both sales and/or recoveries. My numbers are quick tallies; feel free to check my math.) Of special note is the USAO press release (again - http://www.justice.gov/usao/az/ - “Press Room” under “2011 Archives.”, titled “Fast & Furious – Map of Recoveries”) It states the Recovery Totals as U.S. – 372, Mexico – 195. (Totaling 567 / still shy of the 717 listed as purchased in the indictment.) It makes no mention of the circumstances surrounding these recoveries, but it does show…
(Link: http://www.justice.gov/usao/az/press_releases/2011/Fast_Furious_Map_ATF.pdf )
“Rio Rico 2”. What happened in Rio Rico where 2 firearms were recovered?
Mike Vanderboegh answers: The murder of Brian Terry. Note that the origins of the scandal begin at least back in 2009. Note also the Justice Department approval of wiretaps. Do you recall what Senator Grassley wrote in his first letter of 27 January to Acting Director Melson about if the ATF had prior contact with straw purchasers that it would raise a number of serious questions? The fact is that coupled with the decision (by Assistant Attorney General Lanny Breuer) to get rid of Attache Gil and keep the Mexicans in the dark, this is where the cover-up began. It explains why the FBI has been mum on the murder investigation. They CAN'T give us details without the whole sordid tale coming out.