Big day today in U.S. vs. Clark. Bets are being placed that it blows up in the ATF's face.

Forwarded to me by a friend who says, "Reminds me of an old saying; "Guns have only two enemies, Rust and Government!" Is this link regarding the recent Pacer posting of a letter in the matter of U.S. vs. Clark with this comment.

On January 18, 2012, defense counsel participated in a telephone conference and there was serious concern expressed regarding specific discovery requests that had been made in writing repeatedly but that no response had been given by the Government. Thus, the requested items remain outstanding.

ORDER granting 239 Motion for Hearing as to George Dibril Clark III (1). A Status Hearing is set for Monday, February 6, 2012 at 3:30 PM before Chief Judge Roslyn O. Silver as to all defendants.

The letter:

Kathy Lemke, Esquire Assistant U.S. Attorney

February 3, 2012

RE: Request for Discovery/Brady Material

10th Discovery Letter

Dear Ms. Lemke;

Attached is a copy of an ATF Form letter which was obtained recently. The copy is undated and has no addressee in the spaces provided. As you will see, the letter is a notice to multiple purchasers of Stemple M60 machineguns. Space is provided for the insertion of the serial numbers and the date registered (the date of ATF approval of the Forms 4 Applications). The date of the letter can be ascertained as a time during the tenure of the signator, Wayne Miller, as Chief, NFA Branch, but I have no way of learning that.

The content of this letter is pure Brady material which was never disclosed. The letter is evidence of the existence of a policy within ATF that is inimical to the prosecution of this case. This letter relates to Stemple M60 machineguns that were manufactured after May 19, 1986 and thus prohibited to transfer and register on a Form 4. It can be inferred that a form letter was necessary to give notice to more than a few persons possessing Stemple M60s.

The purpose of the letter is to give notice of ATF’s decision to allow the machinegun to remain registered and allow the registered owner to lawfully continue to possess it. The letter indicates ATF’s reasoning for approving the transfers; “...the actual date of manufacture did not come to our attention until after we approved its transfer to you.” It also adds the condition that any attempt to transfer the machinegun in the future will be denied. In other words, § 922(o)’s criminal provisions will not be applied to all possessors of the Stemple M60s referenced in these letters nor will the forfeiture provisions of 26 U.S.C. 5872 be applied.

Obviously, the purpose of this form letter is to implement a policy created by ATF and implemented by ATF institutional policy developed within ATF. I request to be provided with a copy of all documents, memos, correspondence, notes and papers by whatever name relates to the ATF formulation of the policy bearing on the creation, review and approval of the Stemple M60 Form letter. In prior discovery/Brady requests over the past year, I have informed you that the primary repository of letters involving prior determinations of the issues involved in this case are the Firearms Technology Branch, National Firearms Branch, and the Office of Chief Counsel. It is highly probable that the Stemple M60 form letter originated in the Office of the Director and files may be there as well.

I also request a true copy of the Forms 3 and 4 from John Stemple as the transferor of an M60 to all transferees and a screen shot of the NFRTR for all such machineguns. The Stemple M60 form letter is not the product of an isolated case. Please cause a diligent search for Brady material within the records maintained in the ATF offices listed above and copies as same as soon as possible.

/s/ signature

This is important because central to the case is whether the ATF is holding the defendants to one standard while holding their friends, like NFATCA President and ATF snitch John Brown, to another. Hearing won't be until late this afternoon in Phoenix so it will be tomorrow until I am able to post the results.

LATER: ODA564's comments at ARFcom are on point as well:

Could Brown, as president of the NFATCA, been acting as a alleged government confidential informant in order to protect the status quo re: the NFA (as amended) and NFATCA in order to protect the interests (investments?) of certain persons within NFATCA's membership?

And how does his relationship with BATFE as an alleged government confidential informant in this case tie to the recent regulatory changes NFATCA has taken credit for (which may be good and may be bad, depending on their final form)?

The seeming total incompetency of the BATFE has helped some people materially and hurt others materially. The mish-mash of seemingly capricious tech branch letters and regulatory interpretations that are apparently made up on the spot, combined with what appear to be pre-determined, unscientific testing practices and incomplete records hidden behind a veil of secrecy appears so unprofessional and incompetent that a suspicious person would almost imagine it is done deliberately.

This is not the first case where the BATFE has appeared to flaunt the rules of criminal procedure. Usually the judge appears more disposed to hold the Government to what can only be described as a lower standard of professional and legal ethics while apparently dismissing defense's protests out of hand - raising the specter of judicial and prosecutorial collusion, if not misconduct (which can't be the case and must only be my lay misinterpretation of the facts). When this apparently doesn't happen, the results seem to be cases like US v. Rock Island (773 F.Supp. 117 (C.D.Ill. 1991) ) - which the Government seems to deliberately not appeal and therefore remain precedent only in that District.

I would not be surprised if the AUSA isn't drawing this out to bankrupt the defendants in order to force them to accept a plea deal or to stymie any appeal.