"It was learned in discovery materials that he was also an ATF Confidential Informant." The Clark Case -- which the ATF thought they'd bullied their way out of -- still has the chance of overturning their (and their snitches') applecart.

Ramsey A. Bear: He'll be laughing all the way to Little Jimmy Vann's testimony at the Issa Committee's ATF oversight hearing

The magnificent Nolo Contendere provides us with the latest Clark case documents: Clark Machine Gun "Conversion" Case Info.

Now, mind you, the ATF by using various forms of blackmail, has already compelled several defendants to make plea deals -- including threats to include their family members in the case unless they rolled. This is standard ATF Chief Counsels Office tactics. What Little Jimmy Vann didn't count on, though, was that there would be holdouts who wouldn't squeeze. Last night at midnight was the deadline for pre-trial motions in the case and Nolo has given us a couple of doozies.

The first, found here, is a Motion to Dismiss the Indictment for Outrageous Government Conduct:

Defendant, Randolph B. Rodman, by and through Counsel, respectfully moves this Honorable Court for an Order dismissing the Indictment for outrageous governmental conduct which rises to the level of a due process violation. . .

. . .The approval of Clark’s three applications was a deliberate act, the sole purpose of which was to create crimes and entrap Rodman. The method used to entrap Rodman was the manipulation of a regulatory governmental function. Rodman received and possessed S/Ns820101546 and 820101557 without ATF approvals of Clark’s applications on February 20, 2008. Prior to that, Rodman’s only involvement with the three guns was that he bought them from Clark and paid for them about four years earlier and that he was the transferee on three applications filed by Clark on December 27, 2007.

But it is the second motion which contains the dynamite:

On or about September, 2000, Defendant Rodman received machinegun Model-1919,Serial Number 820101086 along with a Form 3 approved by ATF on September 21, 2000. The Form 3 bore no indicia that the future transferability of the machinegun was restricted. The absence of a restriction on an approved form is proof positive that machinegun 820101086 was lawfully registered prior to May 19, 1986, that it was registered to Rodman in the National Firearms Register and Transfer Record (NFRTR) and was transferrable. Defendant Rodman found that the workmanship, material and aesthetics of the gun were superior - the work of a master machinist.Defendant Rodman offered the machinegun for sale, and Defendant Goldstein soon found a buyer, John Brown, an FFL/SOT in Virginia. Defendant Rodman filed a Form 3 Application describing the machinegun exactly as it was described on the form transferring it to him. ATF approved the transfer on November 15, 2000, and the gun was shipped. During Discovery it was learned that transferee John Brown sold the machine gun and transferred it to a Maryland FFL/SOT.

(MBV Note: Long time readers will recall the name of John Brown, first in late 2010 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, and a year later in U.S. vs. Clark, et. al. Who is ATF trying to protect with their misconduct? Themselves, their highly-placed snitches, or both? and in John Brown's previous lies are a mouldering in the grave, but his service to his ATF masters goes marching on and earlier this year The curious case of Serial Number A6042075. What exactly did the ATF & DOJ tell the grand jury in U.S. vs. Clark? A tale of machine guns, a well placed protected snitch, insider influence, contradictory rule making, doctored reports and double-standard "justice." The motion continues:

Both machineguns remained in Rodman’s inventory for a few years until machinegun A6042075 was sold to John Brown sometime in 2004. Again, defendant Goldstein had done the negotiations for the sale. Defendant Rodman applied for, and received, ATF approval to transfer A6042075; and it was delivered to John Brown on or about November 11, 2004.John Brown was an FFL/SOT in Virginia. He was President of the National Firearms ActTrade and Collectors Association (NFATCA), a non-profit trade association advocating for the interests of NFA manufacturers, importers and dealers, individual collectors, owners and others considering owning NFA firearms. It was learned in discovery materials that he was also an ATF Confidential Informant. Around time of the delivery of machinegun A6042075, the NFATCA,and John Brown personally, were involved in a joint ATF/NFATCA research and writing project to produce the “National Firearms Act Handbook,” intended as a reference guide to compliance requirements and to inform members of ATF procedures, practices and interpretations. The final handbook was completed on or about 2007 and since that time has been posted on the ATF Website. The handbook project required continuous interface between Brown and Firearms Technology Branch personnel at their West Virginia facility and particularly with the Acting Chief of the Branch, Richard Vasquez. Notably, the NFA Handbook does not mention modifications to registered machineguns, although modifications are a common practice.On or about June 25, 2005, John Brown transferred machinegun A6042075 to a Virginia resident on a tax-paid approved Form 4. The Form 4 Application documented the fact that the machinegun had been modified while in Brown’s possession. The Form notes a barrel length change from 24 to 13 inches, and an overall length change from 41 to 37.25 inches. After possessing the machine gun for a little more than a year, on or about August 25, 2006, the Virginia owner transferred it back to Brown on an ATF approved tax-paid Form 4, reflecting that the gun had been modified again: the barrel length and overall length had been restored to 24 inches and 41 inches, respectively. Machinegun A6042075 then remained in Brown’s possession and registered to him.

According to numerous discovery reports, Brown was contacted by ATF and asked to deliver machinegun A6042075 to the Firearms Technology Branch for examination and testing.The testing was alleged to have been performed on October 31, 2006, by Richard Vasquez, the Deputy Chief of FTB. The alleged FTB examination and testing of machinegun A6042075 and the purported report thereof triggered an ATF criminal investigation of defendant Clark.

In fact, machinegun A6042075 was never officially received by the ATF Firearms Technology Branch, it was never officially tested and no official report was ever prepared. These facts have been verified through FTB evidence logs. However, A6042075 was tested and examined by Richard Vasquez, then Acting Chief of the Branch at the Firearms Technology Branch facility on October 31, 2006, but the examination was performed as a private matter; and was not handled as an official examination of evidence.

Mr. Vasquez’s findings from the October 31, 2006, test were chronicled in numerous official ATF reports, to wit: Vasquez concluded that the conversion of a MAC Model 10 machinegun to a Model 1919 machinegun constituted a new manufacture; therefore,machinegun A6042075 was not registered and was a contraband unregistered machinegun. After FTB’s conclusing that machinegun A6042075 was contraband, it was inexplicably returned to John Brown who then transported the machinegun across state lines from the FTB facility in West Virginia to his place of business in Virginia.

A disturbing question arising from ATF’s treatment of the testing discussed above is why FTB examination of A6042075 was not treated as evidence or as an official work product of the Firearms Technology Branch, and why was an official report not required. The only explanation for why the entire matter was not made an official part of any ATF records was that it was treated as a matter of personal privilege. The only reasonable conclusion is that the intent of the private examination of machinegun A6042075 (in violation of numerous ATF statutes and procedures) was to conceal the fact that an ATF informant had bought, received, possessed, sold it and, infact had bought and transferred two other machineguns that were unlawfully manufactured by Clark.

In November 2006, ATF Special Agent Quartetti of the ATF Falls Church, Virginia office, was assigned the investigation of John Brown’s possession of machinegun A6042075.Special Agent Quartetti contacted Brown to arrange for an examination of the contraband machinegun. On November 21, 2006, Special Agent Quartetti met with Brown and his attorneyat Brown’s licensed business in Centreville, Virginia. Also present at the meeting were an ATF attorney and ATF employees representing the National Firearms Act Branch and the Firearms Technology Branch. Brown proposed to abandon the side-plate of machinegun A6042075, and ATF agreed to that proposal. Thus, the entire machinegun less the right side-plate was left with Mr. Brown and was never available for an official Firearms Technology Branch examination.

ATF’s practice of recognizing the right side-plate of a box receiver, such as the M-1919as the registered part of a machinegun is a long standing practice within ATF. Further, this practice is commonly known by collectors and machinegun owners throughout the industry.

Nevertheless, the facts concerning ATF’s care and custody of machinegun A6042075 becomes more inexplicable other than a desire by certain ATF employees to conceal the involvement of a confidential informant. After taking custody of the right side plate of machinegun A6042075 on November 21, 2006, it was placed into the ATF evidence vault in Falls Church, Virginia where it remained until June 15, 2007 when it was delivered to the Firearms Technology Branch in West Virginia to be tested and examined. While awaiting the examination report and while the side-plate was still in the custody of the Firearms Technology Laboratory, another strange event occurred. Special Agent Quartetti requested authority to destroy it. The report of the examination was not completed until August 20, 2007, and the right side-plate was returned to the Falls Church evidence vault. On August 8, 2008, the side-plate was destroyed. In addition, there are no photographs of machinegun A6042075 either as a fully assembled M-1919 or as a right-side plate. Thus, defendant Rodman has been prejudiced by being deprived of the opportunity to inspect and test vital evidence in this case.

On May 2, 2008, defendant Rodman was asked to abandon three Models 1919s and two MAGs he had received from Defendant Clark. Each had a Form 3 approved by ATF and was still in inventory. (It is important to note that this situation was identical to that of Brown and machinegun A6042075.) Defendant Rodman readily consented to abandon the three Model1919s merely on the claims of the ATF Special Agents. Two of these were the right-side plates of MAG machineguns. The Maryland Special Agents accepted Rodman’s abandonment of theright side-plates.

Contrasting the treatment of defendant Rodman’s surrender of side-plates to Maryland ATF Special Agents on May 2, 2008, with that of an ATF Informant, John Brown, ATF accepted the abandonment of Mr. Brown’s side plate. In fact, in an e-mail received in discovery, Acting Chief Vasquez offered to come to Brown’s place of business to assist in disassemblingA6042075 for Mr. Brown.In describing an identical situation involving defendant Rodman a little more than a year later, Mr. Sander states in the Affidavit that defendant Rodman’s abandonment of side-plates was obstruction of justice and subornation of the obstruction of justice; that Rodman’s abandonment of side plates “interfered in a federal investigation by not turning over evidence ...” and that he (Rodman) “encouraged another person to follow his example.” (Affidavit, para. 52) Mr. Sander further slanders Rodman in stating that he “appears to be hiding/concealing evidence that is necessary in this federal investigation ...” (Affidavit, page 38,para. 68) . . .

. . .In this case, ATF chose to prosecute the defendants for machineguns that had been modified where there is no law or regulation prohibiting modifications, and elected not to prosecute other individuals (i.e., government employees) where there is a clear and unambiguous statute. The NFA penalty section, § 5871, specifies, “Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than$10,000, or be imprisoned not more than ten (10) years, or both” and Section 5812 cannot be violated by anyone other than ATF National Firearms Act Branch employees, given that only government employees are authorized to approve transfers of machineguns that “would place the transferee in violation of law ...”. Rodman is one person who was placed in violation of law.

ATF’s approval of 13 of the 34 Clark Applications is the sine qua non of every substantive crime with which defendant Rodman is charged. Absent ATF’s unlawful transfer approvals, he would never have received or possessed any of Clark’s “new” machineguns; Rodman never could have offered any of the machineguns for sale, nor have filed applications for their transfer. In short, defendant Rodman’s indictment is solely attributable to ATF’s failureto deny Clark’s applications or refer them for criminal investigations.

Actually, ATF had approved thirty-four (34) applications and none had even been challenged. Two explanations for the lack of challenges come to mind. The first and most probable explanation is that National Firearms Act Branch employees were uninformed that changes – minor or major – to a registered machinegun constitute the manufacture of a new,unregistered machinegun as the Affidavit contends, and were trained to approve applications that documented modifications of all kinds as long as the other descriptions matched.

The second explanation for ATF’s wholesale approvals could be attributable to serious institutional problems such as employee inattention to detail, carelessness, incompetence, or reckless disregard for procedures. A senior ATF Executive described the violations as“unfortunate.” (Bates, MHM000000271) Further, the cause may lay with incompetence, lack of training, supervision, management review, or executive oversight. A final explanation offered by some is that the National Firearms Act Branch, from top to bottom, is replete with waste, fraud and abuse. (The undersigned does not hold this view.)

Now I'll sign onto THAT.

There's more, much more in this motion, and readers are encouraged to go through the whole thing. My prediction is that ATF will drop the remaining charges against those defendants who held out against their previous garden variety blackmail tactics. I really don't think they want John Brown up on the stand (or their own Rick Vasquez) as prima facie evidence of ATF misconduct and lawbreaking.