Robert E.

Sanders
Attorney and Counselor at Law

109 Candlewyck Drive W inston-Salem, NC 27104

Robert E. Sanders, Esquire

Member District of Columbia Bar Member Illinois Bar

telephone (336) 659-2999 facsimile (336) 659-2266 e-mail gunlaw@triad.rr.com

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 ATFs 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 1

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. INTRODUCTION 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 A6042075,1 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 machineguns2 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 ATFs 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.

Machinegun, s/n A6042075, is named as part of the conspiracy in the indictment, See, Paragraphs 15, 36; Overt Act 36. 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. 2
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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. Browns 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 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. 3
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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. Masons 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 assembly4. No reason is given for Agent Quartettis 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. REQUESTS: 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

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. 4

(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 FTBs 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 ATFs 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 all entries in the compound and building log book for 10/31/06 regarding Mr. Browns 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 ATFs 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. Browns abandonment states that Mr. Brown 5

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 ATFs 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. Sincerely,

__________________________ Robert E. Sanders RES/ag Enclosures: none cc: Gregory Bartolomei, Esquire, Counsel for George Clark 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 6

William Foreman, Esquire, Counsel for Lorren Kalish