Oops. Gunrunner lawyers seek discovery on Project Gunwalker "agency misconduct." “We were doing what we were told to do."

Neil Munro, writing at the Daily Caller, reports: Gunrunner lawyers seek discovery.

Texas criminal defense lawyers are investigating the Justice Department’s Fast and Furious investigation of cross-border gun smuggling, using routine “discovery” rules that allow defendants to look for flaws in prosecutors’ evidence, statements and purpose.

“As the lawyer for Jose Sauceda–Cuevas, I’ve got to look at every possibility,” including agency misconduct, that would help him in the courtroom, said David Dudley, a Harvard-trained criminal defense lawyer based in Los Angeles.

The U.S. Attorney for the Arizona district is charging Dudley’s client with 25 counts related to gun trafficking. The charges include 10 false statement made during gun purchases, five identity theft charges, five counts for felony possession of a gun, and “five counts of Illegal Alien in Possession of a Firearm,” according to a May 19 press statement.

“The defendant orchestrated straw purchases of over 110 assault rifles and pistols in a multi–state enterprise to provide weapons for the drug war” in Mexico, the statement said. . .

Dudley is working with another client’s attorney to launch the discovery investigations. But neither will get to investigate the investigators unless the trial judges approves their request for discovery.

“I have no idea” if the judges will grant discovery, Dudley said. But, he said, “I assume [prosecutors] will anticipate that we will look at every possibility for our client.”

“Anything he files in court, we’ll respond to appropriately in court,” said Robbie Sherwood, a spokesman for the Arizona prosecutor, based in Phoenix, Ariz.

“I think there’s a pretty good chance of getting discovery if they show it is relevant to a defense,” said Dick DeGuerin, a Houston-based lawyer who persuaded the federal government last year to quit its gun-trafficking investigation of the Carter’s Country, a four-store chain of hunting shops in Texas.

“Orders from either a Justice Department official or from supervisors in ATF to allow the sale to go forward … will be relevant” to a defense, he said. “It certainly might be used in mitigation” of a tough sentence.

From 2006 to 2010, Carter’s County sold guns to suspicious buyers at the behest of the ATF, but stopped once agency officials declared the gun shop to be the target of a criminal investigation. The retails hired him in early 2010, and “once we convinced the assistant U.S. attorney that what we were saying was true – that we were being encouraged to go through with lawful but questionable sales by the ATF – the [attorney] realized we had not been violating the law, nor conspiring with anyone to violate the law,” he said.

“We were doing what we were told to do,” he said.

Dudley is also asking the judge to set aside most of charges facing his client. In a previous California case, he persuaded a judge to drop multiple cocaine-related charges faced by his client, because police declined to arrest him after his first violations. The argument, he said, reduced his client’s sentence to five years, down from 20 or more, he said.

In the gun trafficking case, agency officials did not immediately arrest his client after they first suspected him of violating the law, but instead waited while he made more gun-purchases until they could charge him with many offenses, Dudley said.

“We’ve got enough laws on the books to deal with gun-trafficking and misusing guns … we need better oversight and responsibility and accountability in the agencies that enforce the laws,” especially in the ATF, DeGuerin said. “We’re not going to sue anybody, but I think the more all this comes to light, the better informed the public will be.”