In law, spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. Spoliation has two possible consequences: in jurisdictions where the intentional act is criminal by statute, it may result in fines and incarceration for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference. -- Wikipedia.
NFATCA is their name. "Power through experience" is their claim. ATF snitching is their leaders' game.
The case is U.S. vs. Clark, et. al. The investigation began in 2006.
Here are the Raid Affidavits and Returns, filed on 19 August 2008.
The indictment was filed on 27 July 2010.
Yet the pre-trial wrangling continues.
Why has it taken so long? Because ATF employees and one very highly placed ATF snitch, named John Brown, are smack in the middle of it and it took that long to try to salvage the case while not revealing the ATF's dirty linen. Now, however, the case is coming apart and the dirty linen, for those who have access to the public source documents on PACER, is visible for all to see.
Generically, the Clark case is about the extent to which:
(1) a registered machine gun can be altered by changing its caliber, barrel length and other features, and
(2) ATF and particularly its Firearms Technology Branch can arbitrarily create regulations that have no basis in law, and which hapless defendants find out about only after they get indicted for violating rules that ATF created out of whole cloth and never publicized.
At play here is the lack of scientific testing procedures, but also serious corruption on the part of ATF because:
(A) ATF had been aware of the modifications of a number of the firearms for many years,
(B) at least one FFL, the highly-placed John Brown, who was knowingly dealing in these firearms was not indicted, leaving the defendants that Brown sold some of these firearms to understandably pissed off, and raising questions about why the ATF has created a magic bubble of non-prosecution around him, and,
(C) there was at least one internal ATF investigation involving ATF personnel, perhaps having to do with machineguns that Brown sold them on a sweetheart deal basis.
Two other points:
No statute or regulation addresses the alteration of registered machine guns (other than a prohibition on altering the serial number).
All the firearms involved were registered and reportedly acknowledged by ATF to be incomplete prior to any alteration or modification.
Long time readers will recall the name John Brown, friend of Dan Shea and President of the National Firearms Act Trade & Collectors Association (NFATCA), the machine gun equivalent of the NRA, and how it cropped up in The True Story of the Life of "R.A. Bear": Inception & impregnation into the minds of the ATF via a highly placed snitch named Dan Shea of the NFATCA.
They may also recall that John Brown was caught assisting the ATF in their long-time persecution of an "economic Waco" on Georgia firearms designer Len Savage in an article from December 2010 by David Codrea: "Why did NFATCA president forward claimant email about legal case to ATF?"
But snitching, it seems, may not have been the only service John Brown provided the ATF. Pay close attention to this discovery letter filed on 16 August 2011. Here is a transcript of the pdf in its entirety:
Transmitted via E-Mail and Fed Ex
August 16, 2011
Kathy Lemke, Esquire
Assistant United States Attorney
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, AZ 85004
Re: United States of America v. RANDOLPH RODMAN
Cr. No. 10-1047 ROS
6th Discovery Letter including Brady Request for Documents and Information Relating to ATF’s Mishandling and Spoliation of Evidence in this Case, Machinegun, s/n A6042075
Dear Ms. Lemke:
This is a request for disclosure of documents and records pursuant to FRCrP 16 and for “exculpatory information” in the custody of ATF, See, Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Some of the documents may be within a system of records maintained by the ATF Office of Internal Affairs (IA) or the Office of Professional Responsibilities (OPR), organizational components of ATF responsible for investigating employee conduct which may violate criminal statutes, departmental and/or agency policy or procedures, ethical standards, professional responsibilities, employee malfeasance and/or nonfeasance and all other matters which may implicate waste, fraud or abuse.
As you know, I have a standing written request since September 15, 2010 to be informed merely of the existence of an IA or OPR investigation. The request has been repeated in subsequent letters, emails and conversations but it is not yet resolved. The purpose of my inquiry is solely to avoid wasting your time and mine in making specific Brady requests for
things that do not exist. I told you that I had a good faith belief that such an investigation had been opened or is still in being. After informing me that you had no personal knowledge of such an investigation followed by repeated requests, you stated that you would make an official inquiry of ATF. Last week, while in Phoenix, I asked again and was told that you had not yet heard back from ATF. You asked several times about the basis of my knowledge and belief. I told you orally that it was privileged and that the privilege belonged to a client not named in this indictment. My clients include current and past ATF employees, two firearms trade associations, licensed firearms manufacturers, importers and dealers as well as firearms collectors and private individuals.
Accordingly, it is reasonable to deem your failure to respond as a total denial of my request. My requests herein for Brady material will be based on what I believe to be the basis for an internal investigation and my personal knowledge of material that would be generated and collected in the course of an ATF IA or OPR investigation.
FIRST OCCASION OF ATF MISHANDLING OF EVIDENCE OF A CRIMINAL OFFENSE
Discovery disclosures produced to date reveal that on 10/31/06, a machinegun, s/n A6042075 (Note #1), was then registered to a licensed FFL and Special Occupational Taxpayer (SOT) in the State of Virginia, John Brown, dba Battlefield Sports. This is one of three machineguns (Note #2) named in the indictment which Mr. Brown acquired during the life of the conspiracy. On 10/31/06, Mr. Brown brought machinegun, s/n A6042075 to the FTB facility in West Virginia and delivered it to R. Vasquez, Deputy Chief of FTB. Discovery documents do not disclose what caused Mr. Brown to deliver a registered transferable machinegun to FTB for examination. It is axiomatic that it was not spontaneous. The only reasonable explanation is that it was done at ATF’s request. It is also reasonable to infer that ATF was requesting an examination was to confirm or deny information that Mr. Brown was in possession of an unlawful machinegun. This is not an unusual occurrence. What is unusual is that a person suspected of possessing a contraband machineguns was called and requested to transport it to a laboratory for testing. If ATF had such information, it follows that a special agent should have been assigned to take custody of the machinegun to deliver it to FTB for examination. Special agents are authorized to conduct criminal investigations and seize property. They are trained in the care, custody and handling of property with potential evidentiary value whereas other ATF employees are not. Allowing unauthorized employees to handle potential evidence violates every principle of a professional law enforcement agency.
#1 Machinegun, s/n A6042075, is named as part of the conspiracy in the indictment, See, Paragraphs 15, 36; Overt Act 36.
#2 The two others: Machinegun, s/n 8201010886; approved Form 3 dated 11/17/2000 and
machinegun, s/n 820101592; approved Form 3 dated 8/2/2006.
Irrespective of how the machinegun s/n A6042075 came to be in the custody of FTB, on 10/31/06, R. Vasquez, then the Deputy Chief of ATF FTB made an official determination that it had been unlawfully registered and was, in fact, contraband and the consequences of that determination was the basis for the investigation underlying the indictment in this case. The discovery material does not specifically indicate why a contraband machinegun in the custody of ATF was not seized or abandoned by Mr. Brown but was permitted to walk, losing control of the chain of custody.
Brown purchased s/n A6042075 from my client. The Form 3 application to transfer it was approved by ATF on 11/2/04. Brown, in turn, transferred it to an unlicensed Virginia resident, Peter Storm on an approved Form 4 on 6/25/05. On 8/25/06, Mr. Storm transferred it back to Mr. Brown on an approved Form 4. Thereafter, on 9/27/06, Mr. Brown applied to transfer it to a licensed SOT in Texas. That application was pending on 10/31/06 when the official FTB determination was made that it was contraband. Mr. Brown’s pending application to transfer A6042075 was disapproved for that reason.
The next step in this primer of how not to handle evidence in a criminal case occurred when Mr. Brown abandoned A6042075 to ATF. The abandonment took place at his licensed premises in Virginia on 11/21/06. Discovery material provided thus far is silent as to how or when Mr. Brown received knowledge that his machinegun was contraband and had to be abandoned to ATF. Although not expressly stated, it is clear that ATF returned machinegun, s/n A6042075 to Mr. Brown on 10/31/06, after determining that it was contraband and that it ended up in the State of Virginia at his licensed business. It is not known whether Mr. Brown was told by ATF that it was contraband before it was returned to him on 10/31/06 nor is it known who initiated the call to Mr. Brown that it must be abandoned. If he was not told or otherwise knew that FTB had determined that it was unlawful to possess that gun, he was not in violation of 26 U.S.C. §§5861(b) and 5861( c). If he transported the machinegun across state lines without knowledge that it was contraband, he would not have violated 26 U.S.C. § 5861(j) and the vehicle used to transport the contraband machinegun would not be subject to seizure and forfeiture pursuant to 26 U.S.C. § 5872(a).
SECOND MISHANDLING OF EVIDENCE
Curiously, the agents assigned to seize or accept abandonment did not seize the entire assembled operable machinegun (which ATF had declared contraband on 10/31/06). Instead, Mr. Brown abandoned a part or parts of it described as the “receiver assembly.”(#3) It is not
#3 The term “receiver assembly” is a word of art with no common meaning other than that it is probably a combination of parts which form a receiver. The “receiver” of a machinegun is defined by statute as a machinegun; as is “any part designed and intended solely and exclusively for a machinegun;” as is “any combination of parts designed and intended for use in converting a weapon into a machinegun;” as is “any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.”
possible for anyone to know what part or parts were relinquished to ATF as evidence of crime. All that is known for certain is that ATF accepted a part or parts in lieu of the complete, assembled contraband machinegun. Nevertheless, a part or parts described as the “receiver assembly” of s/n A6042075, were placed in the ATF evidence vault in Virginia.
On 6/15/07, a Special Agent took the “receiver assembly” of machinegun, s/n A6042075 from the evidence vault and hand delivered it to the ATF Firearms Technology Branch with a request for testing, examination and classification.
On 8/13/07, FTB Firearms Technician Kenneth E. Mason issued the report of his examination. Mr. Mason’s official report does not conclude that the item he tested was, in fact, contraband. However, in his narrative, he describes the markings that appeared on the sample “receiver assembly.” Following the completion of the FTB testing, the “receiver assembly” was returned to the Falls Church evidence vault.
THIRD MISHANDLING OF EVIDENCE: SPOLIATION
On 8/8/08, ATF Special Agent Quartetti, the case agent of the Virginia investigation requested permission to destroy the “receiver assembly” (#4). No reason is given for Agent Quartetti’s request to destroy the evidence. This is another unusual happenstance in the bizarre history of machinegun, s/n A6042075.
On 8/27/08, the “receiver assembly” was removed from the evidence vault and destroyed. The destruction was completed by two agents who certified the destruction. You provided a copy of ATF Form 3400.30, the form used to request authority to destroy and certify the destruction. The form has space for the signature of an authorizing ATF official but there is no signature. The Falls Church Report of Investigation (ATF Form 3120.2) used to document this event states that s/n A6042075 was destroyed “in accordance with ATF Policies and Procedures.”
I request, pursuant to FRCP 16(a)(1)(E), Documents and Objects, and Brady v. Maryland, (supra.) to be provided with the following documents, records, forms and papers by whatever name:
1. A true copy of all versions of the ATF Standard Operating Procedures for Firearms Technology Branch (FTB) employees that were operative during the life of the conspiracy
#4 ATF Form 3400.30 “Report of Destruction” is used to request destruction of property that is within the custody of ATF. There is space on the Form for an ATF official to authorize destruction and also space for two Agents to certify that the property was destroyed.
(1993 through 2008). This request includes procedures related to the handling and care of samples received by FTB for testing of any kind, particularly samples that have potential for use as evidence in a criminal case, and the procedures for handling samples which have been determined by FTB to be contraband (unlawful to be possessed). This request includes official procedures guiding the completion of ATF Form 5311.3, the form used to transmit property and describe the purpose of testing.
2. A true copy of the report of the FTB official examination of a machinegun, serial number A6042075, on or about 10/31/06. This request encompasses disclosure of the ATF-FTB Form 5311.3; all papers and forms acknowledging receipt of A6042075 from the registered owner. I also request all statements of persons and all papers and forms used to effect the handling of this particular machinegun following FTB’s determination that it was contraband; the ATF-FTB Form 5311.3 transmitting the sample; all entries (relevant pages only) in the FTB evidence log; the official FTB case number assigned; all records related to the disposition of the contraband item; the work notes of Mr. Vasquez, the Technician conducting the examination; and, any photographs or videos taken in the course of the examination.
3. A true copy of all statements of ATF employees and private citizens interviewed in connection with the FTB testing of machinegun, s/n A6042075, all correspondence relating to arrangements to receive the sample for testing and particularly email correspondence in the period prior to 10/31/06 between Mr. Brown and Mr. Vasquez, or any other FTB employee regarding the arrangements for testing and examination of machinegun, s/n A6042075; and any information in ATF’s system of records regarding phone calls between Mr. Brown and any FTB employee.
4. A true copy of statements of all ATF employees and private citizens interviewed in connection with the destruction of machinegun A6042075.
5. The offices of FTB are situated in a compound in a rural area of Martinsburg, WV. The compound is surrounded by chain link fence and a security guard controls ingress and egress of vehicles. Entry to the compound is limited to persons that have received prior approval from ATF. Inside the FTB building, another security guard limits entry to the building to those who are escorted by an ATF employee for the entire visit. I request entries in the compound and building log book for 10/31/06 regarding Mr. Brown’s entries and exits with a machinegun into the compound and entry to and exit from the FTB office building.
6. Copies of any photographs taken at anytime that s/n A6042075 was in the custody of ATF. This request would include photos taken during the time it was in ATF’s custody on10/31/06, during the second FTB examination, between 6/15/07 and 8/17/07 and during the time it was in an ATF evidence vault and during the time it was destroyed.
The Report of Investigation regarding Mr. Brown’s abandonment states that Mr. Brown
gave the Virginia Special Agents a CD with photos. A copy of that CD is requested.
7. I request a copy of the relevant pages of the ATF Special Agent manual that authorizes the destruction of property being retained as evidence in a criminal case. You will recall I made an earlier request for disclosure of such a procedure. I received no response to my first request and would now be most appreciative if you would confirm in writing that no such procedure exists now or ever existed. The obverse is true and I request that you provide the relevant pages of the agents’ manual which prohibits the destruction of property in ATF’s custody that is being retained as evidence in a criminal case. The latter request would include steps to be taken to avoid destroying evidence inadvertently and all information in the custody of ATF reflecting that the agents did or did not comply before destroying machinegun, s/n A6042075.
In view of the scheduling constraints, please expedite a response to this request. If no response is received within fifteen (days) from receipt, I will deem it denied and will be guided accordingly.
If I can answer any questions or provide additional information, please call or email me anytime.
Robert E. Sanders
cc: Gregory Bartolomei, Esquire, William Foreman, Esquire,
Counsel for George Clark Counsel for Lorren Kalish
Joseph R. Conte, Esquire,
Counsel for Hal Goldstein
Lloyd C. Tate, Esquire,
Counsel for Idan C. Greenberg
Frederick R. Petti, Esquire,
Counsel for James Arnberger
Michael J. Smith, Esquire,
Counsel for Lorren Kalish
Here are some questions not specifically raised in the letter.
If John Brown was guilty of the same offenses as the other defendants, why was he not charged?
What is the relationship(s) if any between Mr. Brown and the employees of ATF FTB, or of ATF headquarters?
Has Brown done any "sweetheart deals" of machineguns to or from employees of ATF?
What is the motive for Brown's previously evident snitching for the ATF? Is he controlling them or are they controlling him?
And will the revelations of the internal affairs investigation shed light on any of the above?
Most importantly for the continued career prospects and liberty of a certain high-level ATF employee -- who ordered the destruction of the evidence and why?
Inquiring minds not only want to know, but are salivating to find out.
B. Todd, it looks like you've got a whole lot more than just the Gunwalker Scandal to worry about, although it involves almost the same cast of characters.
"Damn, Holder, you didn't tell me about all THIS shit when you talked me into taking this job."
And as for the NFATCA, I can imagine their next few board meetings and elections are going to be REAL interesting. A lot of folks are going to be wondering what John Brown had to say about them to the ATF and wondering if he and his friends like Dan Shea were using that corrupt agency's management for competitive advantage. For the rank-and-file of the NFATCA, this is as if the NRA had discovered that Wayne LaPierre was helping the ATF walk guns to the cartels. Not neat. Not neat at all.
I have several more stories detailing facets of this case scheduled. Although the misconduct in the Clark case does not rise to the deadly scale of the Gunwalker Plot, it does involve the same cast of ATF and DOJ characters committing crimes under color of law and is, legally speaking, probably just as threatening to their right to breathe unfettered air outside of prison walls once we know all.
Hang on, folks, this ride is just beginning, and we here at Sipsey Street are so pleased to be your tour guide, in at the beginning.