DOJ also issued a statement on Monday night saying that Issa’s comments were offensive and misunderstood how the FBI catalogues evidence found at crime scenes.
“The FBI has made clear that reports of a third gun recovered from the perpetrators at the scene of Agent Terry’s murder are false,” said the DOJ in a statement.
"Unfortunately, this most recent false accusation not only maligns the dedicated agents investigating the murder of Agent Terry, it mischaracterizes evidence in an ongoing case,” the DOJ said.
Issa contends that since the two weapons found at Terry’s murder scene were catalogued as “K2” and “K3,” there must be a “K1” -- that is, a third gun which has never been revealed to lawmakers or their investigators. The DOJ has said that the “K1” is a sample of Terry’s blood and not another weapon.
Since Monday I have been checking into this controversy. A number of sources in DC, Northern Virginia and Arizona have weighed in. The DOJ, it seems, is likely right. Issa, or rather his staff for I'm sure that's where the error began, made a mistake in thinking that just because K2 and K3 referred to the Kalashnikovs found at the scene, that K1 did too. This email from a source explains:
Don't get too far out on a limb, challenging the FBI explanation. All items received at the lab are assigned a "K' number, as received. Different items go to different units, for an examination relating to that unit's specialty. Each unit prepares a report relating to ONLY THE ITEMS THAT IT EXAMINED.
If K-1 is a blood sample, there should be a DNA lab report referencing a K-1 sample.
Note: "All items received at the lab (emphasis supplied, MBV) are assigned a "K' number, as received. (emphasis supplied, MBV.)
Thus, if the lab assigns the numbers, the issue becomes: Did the third gun make it to the lab? For there was a third gun. Other sources as well as the Hope MacAllister - Andre Howard tapes are clear on that. An SKS, traced to Texas, and said to have been linked to the FBI's cartel informant, WAS recovered.
But did it make it to the lab where the numbers are assigned? My sources say no. Thus, Issa's error in assuming that K1 referred to the third gun gave the FBI and DOJ an opening to try to discredit the whole notion of a third gun, but the mistake doesn't disprove that there was, or was not.
Let's revisit the tapes:
Agent: Well there was two.
Dealer: There's three weapons.
Agent: There's three weapons.
Dealer: I know that.
Agent: And yes, there's serial numbers for all three.
Dealer: That's correct.
Agent: Two of them came from this store.
Dealer: I understand that.
Agent: There's an SKS that I don't think came from.... Dallas or Texas or something like that.
Dealer: I know. talking about the AK's
Agent: The two AK's came from this store.
Dealer: I know that.
Dealer: I did the Goddamned trace
Agent: Third weapon is the SKS has nothing to do with it.
Dealer: That didn't come from me.
Agent: No and there is that's my knowledge. and I spoke to someone who would know those are the only ones they have. So this is the agent who's working the case, all I can go by is what she told me.
Now the tapes were recorded some time in mid-March 2011 by the principle Federal Firearms Licensee cooperating with ATF in "Fast and Furious," Andre Howard, owner of Lone Wolf Trading Company in Glendale, Arizona. The agent he's talking with is the lead Phoenix Group VII case agent Hope MacAllister.
This is not the only evidence of a third gun. As FOX reported on 9 September:
A third gun linked to "Operation Fast and Furious" was found at the murder scene of Border Patrol Agent Brian Terry, new documents obtained exclusively by Fox News suggest, contradicting earlier assertions by federal agencies that police found only two weapons tied to the federal government's now infamous gun interdiction scandal.
Sources say emails support their contention that the FBI concealed evidence to protect a confidential informant. Sources close to the Terry case say the FBI informant works inside a major Mexican cartel and provided the money to obtain the weapons used to kill Terry.
Unlike the two AK-style assault weapons found at the scene, the third weapon could more easily be linked to the informant. To prevent that from happening, sources say, the third gun "disappeared."
In addition to the emails obtained by Fox News, an audio recording from a Bureau of Alcohol, Tobacco, Firearms and Explosives agent investigating the Terry case seems to confirm the existence of a third weapon. In that conversation, the agent refers to an "SKS assault rifle out of Texas" found at the Terry murder scene south of Tucson.
The FBI refused to answer a detailed set of questions submitted to officials by Fox News. Instead, agency spokesman Paul Bresson said, "The Brian Terry investigation is still ongoing so I cannot comment." Bresson referred Fox News to court records that only identify the two possible murder weapons.
However, in the hours after Terry was killed on Dec. 14, 2010, several emails written to top ATF officials suggest otherwise.
In one, an intelligence analyst writes that by 7:45 p.m. -- about 21 hours after the shooting -- she had successfully traced two weapons at the scene, and is now "researching the trace status of firearms recovered earlier today by the FBI."
In another email, deputy ATF-Phoenix director George Gillett asks: "Are those two (AK-47s) in addition to the gun already recovered this morning?"
The two AK-type assault rifles were purchased by Jaime Avila from the Lone Wolf Trading Co. outside of Phoenix on Jan. 16, 2010. Avila was recruited by his roommate Uriel Patino. Patino, according to sources, received $70,000 in "seed money" from the FBI informant late in 2009 to buy guns for the cartel.
As part of my own investigation, I sought to discover just exactly when Andre Howard first learned that there was at least one other firearm found at the Terry murder scene and who told him about it. Sources in AZ and DC say that their understanding is that Howard heard about it from an ATF agent (perhaps MacAllister herself, but this is unclear), in the days after the Terry murder.
In the tapes, when MacAllister assures Howard that "the SKS has nothing to do with it," presumably she is referring to the murder of Brian Terry. Yet how she can know this when it was retrieved at the murder scene is unclear.
Now the previous DOJ "refutation" of the third gun allegation was that experienced crime scene investigators didn't know the difference between an SKS and a Kalashnikov and couldn't count the number of firearms in front of them on one hand.
The DOJ is on firmer ground with this K1 business. K1 does not equal third gun. But that there was a third gun is certain, according to my sources. That it belonged to the FBI informant is also said to be certain.
The question then becomes, was the paid FBI informant at the shoot-out? How did the weapon get there without him, if not? What was the FBI's understanding of the events in the desert outside Rio Rico BEFORE the investigation team arrived? The need to remove the informant's weapon from the evidence stream to protect their source -- even from the charge of murder of a federal officer -- would have been -- and my sources say, was -- overwhelming.
One called him, "The Mexican Whitey Bulger," and added, "They still protect their snitches -- always." He said, "They had an 'Oh shit!' moment. The gun was there, and then it wasn't. Do I have to draw you a picture? Hell, no, it didn't go to the lab. They're not THAT stupid."