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Trying to do a job with broken tools


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#1 avatar

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Posted 29 May 2010 - 11:47 AM

Maybe the Criminal Division of the Department of Justice will pick up on some of this; there are probably more than enough eyes on this right now. It is my understanding that NFRTR data are used to justify all sorts of law enforcement activities, sworn to under oath. Documents speak pretty loudly in this instance, as do the long and considered efforts by ATF and, sadly, the Treasury Department Inspector General and the Department of Justice Inspector General, to cover all this stuff up. With these documents now in the Public Domain, how much longer the charade lasts might be an interesting parlor game, if anybody is taking theoretical bets. This isn't me talking, these are Government documents talking. Consider: A 1979 Department of Justice memorandum to Congress states if ATF can't find an NFRTR record and the NFA firearm owner can, "the only solution" is to declare a new amnesty period (see http://www.nfaoa.org...styMemo1979.pdf, page 4). This hard-to-obtain Memorandum was written in 1979 by the Criminal Division of the Department of Justice as part of an investigation into allegedly inaccurate NFRTR records. Addressed to then-Idaho Senator James A. McClure, it determined that if "a particular individual or weapon is registered" in the NFRTR and ATF finds that its "files are missing," then "the only solution would be to declare another amnesty period." The Department of Justice distributed hundreds of copies of this Memorandum in 1996 as part of a package of documents sent to defendants nationwide as a result of the Busey videotape. The Memorandum is typically cited as "Response to Senator McClure," by Philip B. Heyman, Assistant Attorney General, and Lawrence Lippe, Chief, General Litigation & Legal Advice Section, Criminal Division, U.S. Department of Justice, dated November 29, 1979, bearing symbols LL:JJD:ajw, and is reproduced here in full. Note that when the ATF was transferred to the Department of Justice, effective January 24, 2003, the Secretary of the Treasury's statutory authority under Section 207(d) of the Gun Control Act of 1968, to establish new future amnesty periods, was transferred to the Attorney General. In Herring v. United States (2009), the Supreme Court decided: “We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. . . . If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation.” See Herring v. United States, 129 S.Ct. 695, 703-704 (2009). Reliance on “systemic error or reckless disregard of constitutional requirements” would trigger the exclusionary rule. Ask ATF management (read: ask ATF Chief Counsel) whether the NFRTR could be shown to meet these criteria, and what Chief Counsel has to say about it in writing, in guidance to ATF Special Agents and folks like the NFRTR Custodian, who testifies in Federal District Court as to the accuracy of NFRTR evidence, and to others who might be asked about NFRTR evidence in a criminal or civil proceeding. I'm not looking to seriously melt any brains here, just to bring Public Documents into the light of day. Any of you folks can get these --- just do a FOIA to ATF and request them. You'll get a lot more than you think, and I think you'll be a lot more appalled than you think when you read them. How this stuff passes Rule of Law muster in a federal law enforcement agency is utterly beyond me, and I believe that any ATF Special Agent who relies on NFRTR evidence to do anything, would be advised to thoroughly check out its reliability. Seriously.

#2 Guest_Jumper_*

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Posted 29 May 2010 - 09:48 AM

Avatar, seriously, you're melting my brain with this.

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Posted 28 May 2010 - 06:29 PM

ATF itself has provided valid and reliable evidence that the NFRTR is inaccurate and incomplete and an inappropriate source of evidence in many law enforcement activities ATF does routinely. ATF Special Agents rely on NFRTR lookups for all sorts of things. On May 13, 2010, ATF released additional documents in a long-running FOIA request, 10 of which are shown here (click http://www.nfaoa.org...IA2010NFRTR.pdf to read them), in what ATF has termed the 7th release, containing 300 pages. Each page is number stamped using a Bates numbering machine stamp. Page 050 identifies four NFA firearms received by the licensee during 1993 to 1994; note that each of these NFA firearms was "Not on the NFA Br Inventory print/out," and that each of them was in the licensee's inventory on April 25, 2006, indicating that there was no record of any of these NFA firearms in the NFRTR for more than 10 years. For many of the pages (078 to 081), the "Nature of the discrepancy" between the licensee's records and the NFRTR is that the NFA firearms in the licensee's inventory were "Not in NFA Records." If this isn't evidence the NFRTR is incomplete and, therefore, inaccurate, what is? Release #7 alone contains more than 450 examples of instances where an SOT had an NFA firearm or device in current inventory, an approved Form 2 or Form 3 or other document ATF issued, and no record of the firearm or device in ATF's version of the NFRTR. This is a management problem of staggering dimensions. What about the Elmer Fudd who isn't an SOT, whose Form 4 is lost or destroyed through no fault of his own, such as in a house fire or a Katrina flood? Or a kid or stupid girlfriend destroyed it? And ATF has no records at its end? What happens? If an SOT or any other FFL kept records as sloppily as this, ATF would shut that dealer down as being flat out dangerous --- that ATF, as a federal law enforcement agency, would have such crummy records is, well, something that more than one Assistant United States Attorney may have considered in declining to prosecute.

#4 Doc Holiday

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Posted 09 March 2010 - 08:33 PM

Zorro and Avatar, take this fight outside please. I support ATF pursuing doggedly any FFL who is intentionally and willfully trying to play games with the firearms laws. However, ATF never needs to cheat, lie withold or bully to do this. Thats how we know we are the good guys. If we do this OR so Im told even give the appearence of inpropriety, we are wrong. I have been involved in hundreds of Federal prosecutions and am proud to say I have worked with some of the best prosecutors in the country, maybe the world. NOT ONCE have I ever seen a Federal prosecutor threatened with sanctions and so obviously withold evidence. ZORRO Please read the certified transcripts provided for you. Leave out the techy stuff and tell me you approve of this type of conduct?

#5 Historic Arms LLC

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Posted 09 March 2010 - 04:18 PM

I would respectfully draw everyone's attention to a document in this thread (refer to Judge Leonard hearing PDF) as it does tie with the "Implications of "Acting" Director and others for ATF" thread that I responded to.

The US v. Friesen case became outrageous in many ways. The chief motivation was ATF Chief Counsels Office to continue the prosecution after the first trial ended in a mistrial. The PDF below shows just how outrageous things became just before the second trial was to begin.

Just to make it easy, I'll quote some of it. Judge for yourself if ATF Chief Counsel was playing things fast and loose with this prosecution;

Page 2, line 11:

11 THE COURT: It's my understanding that you've had this
12 document in your possession since before the last trial.
13 MR. KUMIEGA: Which -- which document, your Honor?
14 THE COURT: From Birmingham Arms.
15 MR. KUMIEGA: We did not -- we had -- we had it in a
16 corrupt file.

Page 6, Line 17 (Friesen's attorney):

17 .....There is a file in there that has --
18 not the one they got these materials out of, there's a file in
19 there called Gun Query that has over 509,000 entries in it that
20 is what I would call chocked full of exculpatory evidence.

Page 12, line 16:

16 THE COURT: Were you told to send it to Kendall? (Friesen's other attorney)
17 MR. KUMIEGA: Yes.
18 THE COURT: So why didn't you?
19 MR. KUMIEGA: I don't remember. It just fell through
20 the cracks.
21 THE COURT: The only crack is from you to the
22 secretary.

Page 31,line 23:

23 THE COURT: I just find all of this very troubling,
24 that it's all last-minute, there is no effort to expedite it.
25 And it's kind of almost, it looks deliberate to me, Mr. Kumiega.

Page 32, line 22 [THE HONORABLE TIM LEONARD, U.S. DISTRICT JUDGE]: "If I could sanction the government I would, but it would just be money out of the government's pocket for paying the government, but I don't want this to happen again."

In short ATF dumped 750,000 discovery documents in the defense's lap on a Friday before Monday's trial was supposed to begin...ATF Chief Counsel, James P. Vann, refusing to turn over the ATF procedure for an industry compliance inspection, claiming it's secret?

How much time, money and effort was wasted on this? How much of that waste of resources took away from going after the real bad guys who who are violent and harm society.

Draw your own comparison's on how Chief Counsels Office deals with you Field Agents and how they deal with us in the industry. I find it "hauntingly familiar". I also know that the situation with unethical behavior has spilled into the Federal Justice System and effects far more than ATF Field Agents...


Respectfully,

Len Savage
Historic Arms LLC

#6 Doc Holiday

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Posted 24 February 2010 - 11:30 PM

Enlist to cooperation of the communities and the industrys and perhaps we can regain their confidence.

#7 Doc Holiday

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Posted 24 February 2010 - 09:38 PM

99% of ATF agents do their job and do it well. We have relied on the industry to do their job and vice versa. Lately, an FFL wont talk to an ATF agent w/o an attorney present (and I dont blame them). And the new field agents are being led to believe that FFLs are our enemies and inherintly criminal. The public doesnt trust us, we have giglio issues far exceeding acceptable levels and counsels office continues to perpetuate this Jack-booted mentality. Those of us who have been around have arrested our share of FFLs in a career. But speaking from personal experience, my FFL arrests make up about (estimate) .00000001 percent of the criminal I have dealt with. This FFL boogie man mentality is merely more ATF smoke and Mirrors they must be to blame.

#8 Ramsis A Bear

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Posted 24 February 2010 - 05:04 PM

Please rein in Counsel. Stop blaming the industry for our shortcomings.


Amen Doc. FFL's are the type of folks who don't hold a lot of love or trust for the government anyway, and the vast majority just want to make sure they sell legally and stay on the right side of the law. So, they hear that the ATF as an institution covers up errors with the NFRTR, and they jump to the conclusion that ATF is sloppy with other data, including NICS data (never mind that's an FBI database). Talk about concerns when compliance inspection time comes around...

#9 Doc Holiday

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Posted 23 February 2010 - 08:38 PM

The sad part of this posting is that it is posted by a civilian. The people who pay our salaries and our budget to keep them safe are now losing faith as well. For 20+ years I can honestly say that the FFL community has been supportive and professional in ALL their dealings with ATF. They trusted us and we trusted them. Yes there were bad apples. Yes some abused the industry. But the vast majority of the population supported our mission and our agency. Mr. Melson Please understand, we know this much. When we lose the public, and the firearms industry, we lose our usefullness. Please rein in Counsel. Stop blaming the industry for our shortcomings. Mr. Hoover stated before congress that we had dropped the ball on the border violence issue. Lets dont try to scapegoat the industry.

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Posted 22 February 2010 - 03:45 PM

Chief Counsel's office and ATF management heaps abuse on the good FFLs and the good citizens, by sending street agents and others out with flawed information, wasting taxpayer dollars and creating bad will among citizens who have done nothing wrong --- and giving leaving a bad taste in their mouths about ATF as a federal law enforcement agency.

ATF management has known for years that the National Firearms Registration and Transfer Record (NFRTR) is filled with errors and omissions. Then-NFA Branch Chief stated it during a videotaped "Roll Call" training session in 1995. The attached documents --- released in 2010 under a FOIA --- prove it.

ATF agents are tasked with enforcing the NFA; that does have serious consequences for violations ($250K fine and 10 years prison time). The ATF street agents' only tools are the Firearms Technology Branch (FTB) to tell them if an item is NFA, and the NFRTR in the event that FTB determines that an item is NFA and is either lawfully registered or not.

The "LucyGotMoreSplaininToDo.pdf" documents show that ATF's version of the NFRTR had no record of three lawfully registered silencers from 2001 to 2003. The "smokingNFRTRgun.pdf" document shows that ATF tries to use FFL records to correct its version of the NFRTR. But what about transactions between unlicensed individuals in the same state, who don't have to keep records? Suppose a citizen buys a machine gun with ATF's approval, loses his Form 4 in a house fire, ATF's version of the NFRTR shows only that the gun is still registered to the guy he bought it from --- who died 15 years ago? What happens?

Agents are tasked with enforcement, not being the experts on both of the "tools" provided. (otherwise there would be no need for an ATF branch for each "tool"). Sending out ATF agents with "broken tools" is like sending out a highway patrolman with a broken radar gun and expecting him to enforce the speed limit...He can do it though not very efficiently, and a lot of folks who did nothing wrong get wrongfully accused of speeding....It's unfair to both the highway patrolman and the citizen.

The management decision to send out ATF agents with "broken tools" is unfair to the ATF agents and citizens. It also has the consequence of breeding a strong resentment that the ATF agent is stuck dealing with, not the managers and lawyers who pushed the idea.

Take a look at a document that was filed in a 2009 federal court case in Oklahoma to bar use of NFRTR data. It is based on information created by ATF:
http://blog.princela...imine_NFRTR.pdf

ATF Counsel knows about this document, which documents a pattern of ATF management covering up errors in the NFRTR, and about the FOIA documents referenced above. But ATF Counsel has never shared this information with NFA Branch employees. Neither has ATF management. How many ATF Special Agents, who use NFRTR data, know about it?

"Old hands" --- that is, agents with experience know not to trust the NFRTR, but the new guys "drink the kool-aid" of it being bulletproof in court. That's not good for professional law enforcement, or for the citizens who get victimized by crummy records.

Defense had requested a bunch of documents from ATF, including manuals for evaluating firearms. At the original Friesen trial, ATF exhibited a pattern of withholding documents until the last minute, and continued that practice leading up to a second trial that never happened, because James P. Vann bailed and the U.S. Attorney was left with a flawed case which the evidence didn't support, hence the plea bargain. Among the documents ATF withheld was a Firearms Technology Branch (FTB) procedures manual, probably because it discusses "Classification requests that are determined to be politically sensitive" (see page 4). These are just the first 4 pages; defense had the entire manual anyway, at the time, but ATF didn't know that. Federal District Judge Tim Leonard gave Assistant United States Attorney Edward Kumiga and James P. Vann a royal chewing, and said the only reason he wasn't bringing sanctions against Assistant United States Attorney Kumiga was because the taxpayers would wind up paying for his defense.

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