Hearing

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 1 of 36
CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Official Court Reporter: Elaine Cropper, RDR, CRR, CCP Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc. 35 Phoenix, Arizona 85003-2151 (602) 322-7249 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription United States District Court UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ______________ ) ) Plaintiff, ) vs. ) ) George Dibril Clark, III, et al., ) ) Defendants. ) ) ) __________________________________ ) United States of America,
CR-10-01047-PHX-ROS
February 6, 2012 3:36 p.m.
BEFORE:
THE HONORABLE ROSLYN O. SILVER, JUDGE
REPORTER'S TRANSCRIPT OF PROCEEDINGS STATUS HEARING

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 United States District Court A P P E A R A N C E S For the Government: KATHY JO LEMKE, ESQ. JAMES VANN, ESQ. U.S. Attorney's Office 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 602.514.7500 For the Defendant George Dibril Clark, III: GREGORY A. BARTOLOMEI, ESQ. Federal Public Defender(Phoenix) 805 West Adams Street, Suite 201 Phoenix, AZ 85007 602.382.2700/(fax)602.382.2800 For the Defendant Randolph Benjamin Rodman: ROBERT E SANDERS, ESQ. (Telephonically) Sanders & Sanders 109 Candlewyck Drive Winston-Salem, NC 27104 336.659.2999/(fax) 336.659.2266 For the Defendant Hal Paul Goldstein: JOSEPH R. CONTE, ESQ. (Telephonically) Law Offices of J R Conte 400 7th St NW, Suite 400 Washington, DC 20004 202.638.4100/(fax) 628.5291
For the Defendants Lorren Mark Kalish and James Paul Arnberger: MICHAEL J. SMITH, ESQ. Gonzalez & Smith 2340 W. Ray Road, Suite 1 Chandler, AZ 85224 480.491.9750/(fax) 480.491.9260 For the Defendant Idan C. Greenberg: LOYD C. TATE, ESQ. Law Office of Loyd C. Tate 1921 South Alma School Road, Suite 304 Mesa, AZ 85210 480.345.1400/(fax) 480.345.1431

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
P R O C E E D I N G S
(Court was called to order by the courtroom deputy.) (Mr. Conte and Mr. Sanders are appearing telephonically.) (Proceedings begin at 3:36.) THE COURT: All right. Please be seated.
03:36:24
COURTROOM DEPUTY:
This is case number CR 10-1047,
United States of America v. George Dibril Clark, III, et al., on for status conference. MS. LEMKE: Good afternoon, Your Honor. Kathy Lemke
03:36:42
and James Vann for the United States. THE COURT: Thank you. Good afternoon, Your Honor. Gregory
MR. BARTOLOMEI:
Bartolomei appearing on behalf and with George Clark, who is seated behind me, Your Honor. MR. TATE: Good afternoon, Your Honor. Loyd Tate
03:36:53
appearing on behalf of Mr. Idan Greenberg.
And I would waive
his presence for the purpose of this hearing. MR. SMITH: Good afternoon, Your Honor. Michael
03:37:06
Smith on behalf of Mr. Kalish. today's hearing.
We also waive his presence for
Also, I was contacted by Mr. Petti's office. Apparently, he is ill today, asked if, with the Court's permission, I could stand in and also waive his client's presence. United States District Court
03:37:17

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. SANDERS: And that's fine. Good afternoon, Your Honor.
03:37:17
Robert
Sanders appearing for Randolph Rodman, and I would ask for waiver of his appearance at this hearing. THE COURT: MR. CONTE: Thank you. Good afternoon, Your Honor. Joseph Conte
03:37:32
on behalf of Hal Goldtein, and I waive his appearance. THE COURT: Okay. First we have number of motions, Granted. Then we have
03:38:13
motion for status conference.
And we will talk in just a moment.
motion to preserve electronic mail and we have a response from the government. Is there anything to add to the motion? MS. LEMKE: at this time. MR. SANDERS: THE COURT: No, Your Honor. All right. And in view of the Nothing from the government, Your Honor,
03:38:28
government's response, I think the government has adequately provided the documentation that is necessary and it is sufficient, so the motion is denied as moot. If there are additional problems with the discovery, I am certain counsel will bring it to my attention. there's a motion for grand jury transcripts. Anything to add to the motion? MR. SANDERS: Your Honor, on behalf of Mr. Rodman,
03:39:05 03:38:41
Then
United States District Court

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no, there is not. THE COURT: Okay.
03:39:07
Anything from other defendants? I'm sorry. I believe that
MR. BARTOLOMEI:
Mr. Sanders filed a reply this morning so just making sure the Court received that. THE COURT: I did. Okay.
03:39:19
MR. BARTOLOMEI: THE COURT: MS. LEMKE:
And from the government? Your Honor, I think our motion is clear
03:39:25
that to disclose the grand jury transcript at this point in time is premature as the defendants are essentially trying to bootstrap an allegation saying that it occurred in the grand jury and want to prove it by getting a copy of that. And it's
clear about when the disclosure of the grand jury transcript is appropriate, so we stand on our pleading. THE COURT: All right. The motion is denied and the
03:39:45
government, obviously, has an obligation to ensure that the grand jury transcripts are provided in accordance with the rules and regulations and the constitution. Okay. Now, Mr. Bartolomei, you're ready to -May I approach the lectern? You may, to discuss the issues as
03:40:00
MR. BARTOLOMEI: THE COURT: Yes.
to the status conference that we have today. MR. BARTOLOMEI: Yes. Thank you, Judge.
03:40:15
In order to do so in a logical way, and rather than United States District Court

having all defense counsel just come up, we have been speaking amongst ourselves and what I would like to address at this point is that on January 9 of this year I sent an e-mail to the government with an Excel printout of the additional materials that we believe we're entitled to that we were waiting to receive. Prior to the Court convening, I did speak with Ms. Lemke who has advised that she's in the process of putting that together and that we -- I guess, hopefully, by the end of this week or beginning of next week we hope to have those materials in hand. We made it -- well, my paralegal prepared
03:40:18
03:40:43
03:40:53
the Excel to make it easier for the government and we could just go down the list so that -- or the government can go down the list and address those points in order. have that matter resolved very, very soon. Is that correct? MS. LEMKE: THE COURT: That's correct, Your Honor. Okay. So, then, there's nothing today But we hope to
03:41:12
for me to decide on the Excel printout? MS. LEMKE: this point in time. I would agree with that, Your Honor, at If there's something in particular -- I'll One of the items on the
03:41:25
give the Court an advisement.
spreadsheet that defense counsel is requesting is a section of a book that was a manual for training. books have nothing to do with this case. Those sections of the What those sections
03:41:40

have to deal with are tobacco regulations, alcohol regulations, and preparing a witness for the purposes of tax records. The government doesn't believe that we're under a duty to disclose those and we'll file a pleadings about that if there's a dispute as to why we're not going to turn over an item that is requested. THE COURT: Now, are those public records, the
03:41:44
03:42:03
training books, or are they confidentially protected? MS. LEMKE: They are protected material in that they
03:42:16
are the training materials that are provided to the officers. So they are not part of the public record that is out there. As far as if an individual could do a FOIA request, I don't have knowledge about that. would be a readily yes. I don't believe the answer to that
There is material that is in there

03:42:35
that the government believes is subjected to protection and should not be supplementally disclosed to third parties beyond the defendants in this particular circumstance in this particular case. THE COURT: Okay.
Now, you know, Mr. Bartolomei, and other defense counsel, what these training documents are, and they are pursuant to tobacco regulations, alcohol regulations. mentioned something about tax regulations? MS. LEMKE: THE COURT: Preparing a witness for tax regulation. So if those training manuals are indeed You
03:42:50
03:43:07

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Excel.
what the government has offered that they are, how are they relevant to your defense? MR. BARTOLOMEI: Judge, I haven't seen them. I can't
03:43:11
say -- I'm taking Ms. Lemke at her word. would be relevant to our case. problem with that.
I don't see that they

03:43:24
So I don't necessarily have a
And, obviously, with regards to anything
that is not public in nature, then we're not going to be around disclosing it. prepare. THE COURT: That is correct. And if you have any
03:43:38
But we need the materials in order to properly
reason or can proffer why you believe that these documents, these in particular, the training records, are relevant to a defense, then, obviously, you'll have them. MR. BARTOLOMEI: THE COURT: Okay.
03:43:54
But at this point, it doesn't appear that And exercising the
the government believes that they are.
greatest of caution because of the Brady responsibilities and today I appreciate your candor, Mr. Bartolomei, in telling me right now you don't see that they are relevant. MR. BARTOLOMEI: THE COURT: Yes, Judge.
03:44:11
Is there anything else? Judge, not with regards to this
MR. BARTOLOMEI:
Mr. Conte and Mr. Sanders wish to address a number of materials that have been asked for many times which we've not United States District Court
03:44:19

CR-10-01047-PHX-ROS, February 6, 2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received. So if I may turn it over to them. THE COURT: MR. SANDERS: for Randolph Rodman. Court. THE COURT: MR. SANDERS: And that's fine. All right.
03:44:23
Who is going to speak first? Robert Sanders
If I may, Your Honor.
I'll begin if that's -- pleases the

03:44:37
Your Honor, to begin with the most
recent written request for discovery and the Brady request, I wrote a letter on November 29 requesting five things. Number
03:44:57
one had to do with letter rulings, which we've heard much about during this pretrial period. rulings. I requested two specific letter
The Court at the last hearing asked to ignore --
asked counsel to advise the government of those that they know of and these are two that we know of that we have. related to a Balou belt-fed device. THE COURT: MS. LEMKE: belt-fed device. Now, say that again? Balou is a proper name. B-A-L-O-U One is
03:45:26
This is a matter on which the firearms An oral approval was The

03:45:52
technology branch of ATF issued a letter.
received sometime in October of 2005 by the requester.
letter was read over the phone and the requester never received a copy -- a hard copy of the approval. In December the
requester received another phone call from the chief of FTB who told him that FTB was thinking about changing their mind. In
03:46:29
2006, early in the year, the letter disapproving the earlier United States District Court
Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 10 of 36 10 CR-10-01047-PHX-ROS, February 6, 2012
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rest? THE COURT: Ms. Lemke? MS. LEMKE: Your Honor, I thought we disclosed the I'll confirm that we
03:48:16
letter was received by the requester. The requester in this case was Historic Arms who we had retained as an expert earlier in this case. I requested to
03:46:34
be provided with a copy of the letter approving the Balou belt-fed device, and I haven't received a copy of that letter. I haven't received any word or any acknowledgment that the government has ever even received my request. And the second letter ruling was one involving a device called a BM, that's Bravo Mary, 3000. I requested all
03:47:28 03:46:58
records and documents and I provided the control numbers to FTB for ease of locating them. approvals and one disapproval. In that case there were two Of course I requested those. I haven't received any
I, once again, haven't received them.
acknowledgment that they exist, that I'm going to get them, that I won't get them, or acknowledgment that even the request was received. That is the end of the first request, Your Honor. THE COURT: MR. SANDERS: Let me ask the government -Do you want me to proceed with the
03:48:08 03:47:53
No.
Let's stop.
information that we have on those items. have.
If we have not, we'll surely do that before the close of United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. this week. THE COURT: When you say you thought that we had,
03:48:19
what is -- why is there any question about that? MS. LEMKE: Your Honor, there's several thousands of
03:48:30
pages of documents that we've disclosed on this matter and there has been many requests by defense counsel. Some of those
requests are -- were repetitious but we'd already disclosed that information in the information that we had. So that's the
reason why I am standing before the Court today to say I believe that we've disclosed everything that the NFA branch has and maintains on those two particular items, but I will reconfirm that we have done so and that those -- any items that we have have been disclosed. Unfortunately, Your Honor, I cannot recall, as I'm standing here today, specifically on those items. have. THE COURT: Let me ask, Ms. Lemke, Mr. Sanders, did I believe we
03:49:10 03:48:49
he let you know in advance of this hearing what he was looking for? MS. LEMKE: In the letter that he wrote, yes, Your
03:49:24
But I'm telling the Court here today, unfortunately, I I
didn't bring all of the discovery requests that were done.
only brought the Excel spreadsheet and I was prepared for those discussions here today. And I'm just trying to tell the Court
03:49:40
that I would love to be able to avow to the Court that I've United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. Honor. THE COURT: Lemke has mentioned? they are searchable. MR. SANDERS: And have you searched the documents Miss She said she believes she has and that Is that a problem here? It's no problem from this point, Your
03:50:53
turned it over. I have.
I believe I have but I do want to confirm that
03:49:43
So that's why I am reserved in my . . . THE COURT: Okay. Did you turn over thousands of
records so that counsel are looking for a needle in a haystack or can you point to the records? That's the problem. You
03:50:06
obviously know you can't just hand them boxes of records and say, "Look for the documents you're looking for." MS. LEMKE: turned over boxes. of the information. information. As I'm telling the Court, we've turned over this information in the past. THE COURT: Mr. Sanders? MR. SANDERS: THE COURT: them? MR. SANDERS: I know I haven't received them, Your
03:50:39
Your Honor, that's correct.
We've not
We've turned over scanned copies of discs That information is searchable

03:50:18
All right.
Hold on for a second.

03:50:33
Yes, Your Honor. Why is it you think you haven't received
I have looked at the records very carefully and very United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mind? MR. SANDERS: The second item in the same discovery over? MS. LEMKE: Because, Your Honor, in November we diligently over the past year. THE COURT: I do not have them.
03:50:58
Ms. Lemke --
Hold on for a second. Ms. Lemke, why is it you think you've turned them
03:51:09
disclosed a packet of information on a disc that contained information in a document titled in particular Balou belt-fed device. That's what I remember from my recollection. THE COURT: MS. LEMKE: THE COURT: Let me stop you. Yes, Your Honor. If you haven't turned it over and unless Turn it over by Friday.
03:51:29
there's extraordinary circumstances as to why you have not turned it over and why you cannot find them, then the government is going to be subject to sanctions. around for a year now. this. This has been
03:51:44
It has been clear that counsel need
I have some sense as to why they need it. MS. LEMKE: THE COURT: No. No. Yes, Your Honor. All right. No. Mr. Sanders, what else do you have in
03:51:59
letter, Your Honor, was a specific request for a single National Firearms Act error letter. THE COURT: I'm sorry. National Firearms Act, what
03:52:16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter? MR. SANDERS: Error. E-R-R-O-R, letter. That's the
03:52:19
common term for it within ATF.
And to aid the Court, Your
Honor, it is a form letter which is used by ATF in the National Firearms Branch by examiners who are approving or disapproving applications to transfer NFA weapons. One of the items that they may find an error with is the reconciliation of the description of the firearm on the application form with the description of the same firearm in the actual database, the National Firearms Registration and Record database. The error letter is used to send to the applicant, the person applying to transfer an NFA weapon, with check marks indicating what the problems are they find on the application. It's mailed to the applicant. He gives an explanation or
03:53:36 03:53:07 03:52:35
writes a letter or makes the telephone call to reconcile the discrepancies and that is how the examiner makes a decision to approve or disapprove. Now, the particular one that I asked for was one involving a firearm identified as serial number A6042075. one plays a large role in preparation for the defense. That
03:53:57
That
form was submitted by a licensee in Virginia who was applying to transfer that firearm to a third party. And the error
letter was prepared and I received -- we received a copy of it in discovery. United States District Court
03:54:28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for that? But I asked for the answer, what responses were given to that by the applicant, by the prospective transferor to the error letter? discrepancy? completely. What did he say was the reason for the And I only asked for one. I identified it
03:54:50 03:54:33
I have not received it, nor have I received a
telephone call or any correspondence indicating that I will get it, I won't get it, it exists, it doesn't exist or it's denied. THE COURT: Okay.
Ms. Lemke, so what we're looking at is the response from the transferor of the -- to the error letter relating to this particular license, A604205 I think. MS. LEMKE: Your Honor, we've disclosed every piece
03:55:08
of paper that has been maintained for these firearms including A604275. The fact that whatever response the possessor of that
03:55:34
firearm had, whether he actually wrote a response or did not write a response, there is no copy maintained. THE COURT: that is the case? MS. LEMKE: I don't have an explanation whether it is So do you have an explanation as to why
the possessor never filed a response or wrote back a response or what the response of that individual was. THE COURT: Why is that? Can you give an explanation
03:55:51
I mean, there has to be some reason other than, you Usually, if there's no
03:56:09
know, it fell into a black hole.
response to an error letter, then there are consequences or United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to do. there's a record that there has been no response and then thereafter something occurs or there's been a letter and there's an explanation as to why the letter was destroyed or the letter doesn't exist. mean a response. MS. LEMKE: Your Honor, I understand the way that you I mean, when I say "a letter," I
03:56:40 03:56:18
are going through that and I would agree with you that that is typically how things happen. On this particular circumstance, the possessor of this firearm brought the firearm in to FTB for inspection. So
03:56:47
whether that preempted their need to respond, I don't have an answer. I don't have an answer why one does not exist and why
we have been unable to produce them. THE COURT: Well, okay. Then that is what you need
03:57:05
We've heard this in open court but somebody from ATF
has to give an explanation for that. MS. LEMKE: THE COURT: Yes, Your Honor. So, in other words, it has to be clear in
writing that we don't have an answer for this but these are the reasons why we don't have an answer. And the reason is, as you
03:57:20
said, somebody walked in to NFA and they asked for -- the process took place there and there was an error letter issued and these are the procedures. happened. This is what could have This was either negligence
03:57:42
This is what did happen.
or it was properly handled.
So there has to be at least an
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer. Mr. Sanders is entitled to that. MS. LEMKE: THE COURT: Yes, Your Honor. All right.
03:57:47
Mr. Sanders, what next? MR. SANDERS: Your Honor, to add to the last answer,
03:57:54
with all due respect to the prosecutor, Your Honor, ATF, by their own procedures, is required to keep a file of all correspondence relating to transfers. What Ms. Lemke just mentioned was something that happened with a laboratory examination, not with an application to transfer. This was that, an application to transfer which It has
03:58:10
just was mailed in to the National Firearms Act. nothing to do with the gun itself.
ATF never seized the gun or
had anything to do with the gun itself. And error letters and all notes and everything of the examiners are kept in the file of the specific application and they are kept. THE COURT: Well, Ms. Lemke is going to have to
03:58:31
explain that -- or the ATF is going to have to explain that. MS. LEMKE: THE COURT: Yes, Your Honor. All right. You'll get an
03:58:49
Mr. Sanders, she understands.
explanation as to where the response is to the error letter or why there is not a response. And that is what you understand; right? United States District Court
03:59:06
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject. On the third request in the same letter, Your Honor, dealt with the discovery requests related to the government's file on expert, Richard Vazquez, and his supplemental report of two firearms ATF laboratory reports, one specifically labeled FTB 2007-119 and the other one, 2008-514. I had some authenticity questions with that. The
03:59:35
MS. LEMKE: THE COURT:
Yes, Your Honor. All right.
03:59:07
Mr. Sanders, anything else? MR. SANDERS: Thank you, Your Honor. Not on that
03:59:12
report is a report that was prepared by another examiner in ATF and it's a massive report. Each report involves about 200
machine guns, many of which I have no idea where they came from or what they were involved in or anything else. Some of them
04:00:11
were things they already identified from this investigation. Then in February, after the examinations were done by the laboratory and ATF in 2007 and 2008, in February of 2011, Mr. Vazquez amended them or supplemented them. He had amended
04:00:45
one of them earlier, and I had some questions about the authenticity of the supplemental report. undated. I asked when it was prepared. Number one, it was I asked where and when I
did the retesting of all of these machine guns take place. asked if there was any consultation between the original examiner, a Mr. Mason, and with the chief of the ATF United States District Court
04:01:11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 laboratory, a John Spencer. The supplemental report of Mr. Vasquez further was not prepared on a form prescribed for that by ATF which all of the other reports that we received were and that was a Form 3311.2. And I asked for the authorization for the retesting of samples that have already been tested and that is the extent of that. And then I asked for the same information concerning
04:01:37 04:01:18
the amended report that Mr. Vazquez had prepared on one of those examinations, 2008-514. The supplemental -- going back
04:02:04
to the supplemental report, that was not received until October 13 of last year, October 11 -- October 13 of 2011. I also requested the Forms 3311.3 for all of the testing of all of the machine guns tested by the ATF firearms laboratory. Those forms, they are prepared for the purpose of
04:02:43
accompanying the gun when it's delivered to the lab for testing. Those forms define the type of testing to be They also have a complete and detailed It's a mandatory
04:03:12
performed by the lab.
description and inventory of each firearm.
FTB -- or ATF laboratory policy that a Form 3311 must accompany every sample. I asked for them. I received a few. I
certainly received none on these two massive reports of 2007-119 and 2008-514. And I also asked for Henthorn material
regarding Mr. Vazquez, and that is the third request, Your Honor. United States District Court
04:03:50
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Ms. Lemke, as I understand it, we have
04:03:51
two initial reports that pertain to some 200 machine guns, that's the 2007-119 report, 2008-514 report, and then there was a supplemental report in February of 2011 that was provided to counsel in October of 2011. Now, let me just ask a question. Was this
04:04:17
supplemental report of Mr. Vasquez, was that supplemental to the two previous reports, 2007 and 2008 reports? MS. LEMKE: Your Honor, I'm afraid that some of the
04:04:35
facts that you just relayed are not what is out there. And I don't have the exact dates, but my understanding of what Mr. Sanders is asking for is the 2011 February supplemental report that Mr. Vazquez made, an amendment to a previous report. And then also Mr. Vazquez
himself prepared a supplemental report that was disclosed to defense counsel in October. THE COURT: Those are the --
04:04:57
Let me stop you.
Mr. Sanders, I'm not sure -MR. SANDERS: my presentation. Your Honor, I think I confused you with Two reports were One
04:05:12
If I may, on the dates.
made, each amounting to about 200 or more machine guns. was done in 2007 and it was numbered 2007-119. was numbered 2008-514.
The second one The tests
Both of these were prepared.
were done and the examinations were made and the findings and conclusions were reported by an examiner named Mason. United States District Court That
04:05:48
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 undated. reports. THE COURT: MS. LEMKE: Is that correct? In February of 2011 he prepared an
04:07:03
you -- those reports were finished in 2008, 2009. THE COURT: Let me stop you. I have a note that you
04:05:54
have some question about the authenticity of those reports? MR. SANDERS: I'm sorry. Not the original reports, Your Honor. But the original reports
04:06:16
I didn't make clear.
received, reviewed and although they are extremely confusing because of the massive number of items that were sent in a big lump and only some of them related to things that I saw relevant to this investigation and this prosecution. have no problem with that. But I
04:06:42
They were prepared, they were
reported in the official records of the ATF laboratory. In February of 2011, Mr. Vazquez amended one of those
amendment, yes, Your Honor. THE COURT: MR. SANDERS: THE COURT: MS. LEMKE: To which one of the reports? 514, Your Honor, the 2008-514. Is that correct? Your Honor, I wouldn't know. That would
04:07:13
be correct off the top of my head. that here. THE COURT:
I have nothing to dispute
Well, according to Mr. Sanders, it was He

04:07:29
He doesn't know where or when it was done.
doesn't know where the retesting took place. United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SANDERS: Your Honor, if I may, that's not the It was dated February of 2011.
04:07:32
case with the amended reports.
It was prepared on an actual ATF form and nothing unusual about it. THE COURT: is with this report. MR. SANDERS: The problem is with the next A Okay. So, now, tell me what the problem
04:07:47
supplemental we received not until October 13 of 2011.
supplemental report of both 2007-119, 2008-514, and that is the one that is undated. It makes no mention of ever having My questions were, Did he consult,
04:08:09
reexamining or retesting any of the items.
were any of the items retested or reexamined?
did Mr. Vazquez consult with Mr. Mason, the one who prepared the original reports; Mr. Spencer, the chief of the firearms lab and the transmittal form for what was tested, number 3311.2. And then did anyone authorize retesting these samples? THE COURT: Let me stop you for a second.
04:08:43
Mr. Sanders, are these questions that you've presented to Ms. Lemke? MR. SANDERS: THE COURT: Ms. Lemke? MS. LEMKE: Your Honor, most of these questions are Yes, Your Honor. Okay.
04:09:14
for cross-examination purposes as far as what type of credibility a person should have as far as these are concerned. United States District Court
04:09:21
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But just to quickly address the supplemental report, which was prepared between August and October of 2011, that Mr. Vazquez had that Mr. Sanders points out is undated, was to address the specific issue about caliber conversions versus manufacturing of machine guns. And it specifically lays out
04:09:41 04:09:25
what constitutes a caliber conversion, how what is done on these from firearms is not caliber conversion but, in fact, constitutes manufacturing. So it was specific to that and that
arose out of the general discussion that we had here back on August 8, 2011, where the Court wanted to make sure that defense had disclosed to them information about this being a manufactured versus being a caliber conversion. THE COURT: All right. So now you have your answer.
04:10:01
It doesn't look like you're going to get anything else other than on cross-examination. And if there is, Ms. Lemke has an
04:10:22
obligation or always has an obligation to turn over Brady material. MS. LEMKE: THE COURT: Absolutely. So if something happens during trial and
04:10:36
counsel raise something and it constitutes Brady material where they are going to have to go search or you're going to have to go search for something that happens to be Brady material, then you're going to have to suffer the consequences. MS. LEMKE: THE COURT: Yes, Your Honor. All right.
04:10:51
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 else? MR. SANDERS: Vazquez, Your Honor. THE COURT: The request for Henthorn material for I haven't received -Okay. A response is to Henthorn and if
04:11:40
So what else, Mr. Sanders? MR. SANDERS: Your Honor, the second part was the I think that
04:10:51
request for Forms 3311.3, the transmittal forms.
is discovery material and I haven't heard any response about that. THE COURT: Well, it's only discovery material if, in
04:11:05
fact, the government is going to use it at the time of trial or if it constitutes Brady material. Is it Brady material? documentation at trial? MS. LEMKE: THE COURT: 16? MS. LEMKE: Your Honor, at this point in time, I am
04:11:29
Are you going to use the 3311

04:11:21
Your Honor, it is not Brady material. Well, are you going to use it under Rule
not planning on using it; but those copies of the Form 3311 that I have that exist have been disclosed. THE COURT: Okay. Is there anything
Mr. Sanders, you have the answer.
there is any information, then you are to comply with the requirements of Henthorn. MS. LEMKE: Yes, Your Honor.
04:11:56
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 resolved. Is there anything else from Mr. Sanders? MR. SANDERS: The next request was a discovery
04:12:48
THE COURT:
Okay.
All right.
04:11:56
Mr. Sanders, is that it? MR. SANDERS: No, Your Honor. I have two more
requests, recent requests, in the same November letter. THE COURT: Well, let me stop you for a second. I don't want to be an Have you already discussed Have
04:12:08
you discussed this with Ms. Lemke? escrow agent for information here.
it with her and she hasn't given you a satisfactory answer? MR. SANDERS: I have written it in a letter. I
04:12:23
haven't received any response to the letter or telephone or e-mail. MS. LEMKE: Your Honor, not to take up any additional
time, I will talk to Mr. Sanders this week and, again, much like anything with the Excel sheet, if there's something that we have a dispute about, we'll address it specifically in a pleading with the Court. THE COURT: All right. That is -- that issue is
04:12:36
request for a copy of the official ATF case report for this case. The case was a concise summary of the entire
investigation with a recommendation from the special agent in charge of the Phoenix office to the U.S. Attorney with a recommendation for or against prosecution. It is normally
04:13:11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. material. All right. MS. LEMKE: Ms. Lemke, response? Your Honor, we're not going to produce
04:13:51
prepared by the case agent with a signature of the SAC and sent to the SAC. I asked for a copy of that as discovery material. Well, you've asked for it but only the --
04:13:15
THE COURT:
the government only has an obligation to provide it to you if they are going to offer it as Rule 16 material or if there's anything contained in the document that constitutes Brady material. What is your position? MR. SANDERS: Well, material that is essential for
04:13:42 04:13:30
the preparation of the defense, Your Honor. THE COURT: Well, essential if it constitutes Brady
We're not going to use it because it doesn't exist. THE COURT: Okay. Well, there is the answer. Can't
produce something that doesn't exist. All right. MR. SANDERS: Mr. Sanders, anything else? The last one, the fifth item in that
04:14:06
same letter, Your Honor, was for missing exhibits and the National Firearms Act standard operating procedures. There
were exhibits that appeared from their titles to be the most relevant in the standard operating procedures, Exhibits 11 through 29. I got a response from Ms. Lemke, two words, said I wrote again and asked for an explanation of United States District Court
04:14:29
"not available."
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request? MS. LEMKE: Your Honor, the operational manual, as We have Those
04:15:19
what is the meaning of "not available" and I have not heard any response. THE COURT: MS. LEMKE: have been provided. And what answer do you have, Ms. Lemke? Your Honor, the exhibits that we have They only exist as paper documents. So we So
04:14:33
04:14:45
we've turned over the copy as it's been maintained.
don't have any other exhibits that we can turn over because they don't exist. They were not maintained in that. So when you say they don't exist -- he's
04:15:04
THE COURT:
talking specifically about Exhibits 11 through 29, the operations manual. MR. SANDERS: THE COURT: Yes, Your Honor. So what's your response to that specific
it's been maintained, is in a paper binder format. copied, page for page, that binder and turned over. exhibits -THE COURT: specific answer. Okay. Let me stop you.
I want a
04:15:30
Does the documentation that you've turned
over constitute the operations manual, does it include exhibits 11 through 29? MS. LEMKE: not maintained. THE COURT: Okay.
04:15:45
No, because they don't exist.
They are
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Conte? There's your answer. MR. SANDERS: THE COURT: MR. SANDERS: THE COURT: MR. SANDERS: it for me, Your Honor. THE COURT: Okay. And, let's see. Do we have They don't exist? They don't exist. Yes, Your Honor. All right. Anything else? I think that about does
04:15:53 04:15:46
Not of recent.
Do you have anything? MR. CONTE: Yes, Your Honor. I filed docket 241
04:16:16
requesting a letter that was sent to the (inaudible) branch which resulted in a letter from the legal branch to the FTB which I believe initiated this or in part initiated this investigation. I haven't had a response to that yet. I'm not sure -- do you know what he's
04:16:41
THE COURT: referring to? MS. LEMKE:
Your Honor, I believe Mr. Conte is
referring to an internal memo that was prepared in approximately 2005-2006 for a different matter where an individual was taking the type of firearms that the defendants were using as their source guns and assembling it with another machine gun to create a brand new machine gun, different than what the defendants have done. I am trying to track down an
04:16:56
answer as far as when that was prepared and by whom, but that memo does reference that it is a memo from a Theresa United States District Court
04:17:14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fickaretta, (phonetic), an ATF counsel. And there is a
04:17:19
footnote that references a recent case that happened and that recent case was 2005. So that is right now my current best information that I have to provide and I'm still trying to find an answer. I
04:17:34
believe Mr. Conte sent that letter a week ago requesting the information. THE COURT: MR. SANDERS: THE COURT: Is that right, Mr. Conte? A week ago, yes, Your Honor. All right. Well, she's looking for it.
04:17:48
What else do you have? MR. CONTE: Well, I would disagree with Ms. Lemke's
statements that these documents, thousands of pages, are searchable. issue. I have not been able to search. That's a minor
04:18:06
I think Mr. Sanders covered everything that I have.
But I think part of the confusion, Judge, is that we've sent all of these letters, we filed them all with the Court, and we have yet to ever just get a response from the government that says, "It's here. it." What's not here," or, "We're not producing It's all from
04:18:23
There's just been a lack of communication.
us and we may get material in response but nothing that focuses us to where we've asked questions and we think we don't have an answer. THE COURT: MS. LEMKE: Ms. Lemke? Your Honor, I've tried to provide the
04:18:43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information to them. Mr. Conte is correct. I have not said, And one of the
04:18:44
"Please refer to this page for this item."
reasons why I've not done that is I don't want to be directing them to something and then say I was misdirecting them to other things, but I have been trying to be responsive to their requests in turning over the information. We've turned over a lot of additional information that isn't necessarily relevant to this case, but we are trying to comply with their requests of the information that they seek. THE COURT: All right.
04:19:13 04:19:01
I have no reason to believe, Mr. Conte, and Mr. Sanders, that the government has been delaying. If you
saying to me that you are waiting for responses from her for weeks or months or something like that, that is different. But
04:19:30
as I understand it, today there's the one letter where you have a number of requests. It's only one week old, so the
government is going to respond as I directed concerning Mr. Bartolomei's requests and the other requests which have been made here today promptly. Is there anything else? MS. LEMKE: Your Honor, there's something else I
04:19:54
would like to put on the Court's radar and it has to do with the discovery letters that defense counsel are filing with the Court as an exhibit. United States District Court
04:20:05
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I would ask defense counsel have filed their discovery requests to me as an exhibit to the Court filing it as a pleading. In particular, Mr. Sanders last week filed his -THE COURT: MS. LEMKE: Go ahead. What was labeled his 10th discovery
04:20:26 04:20:07
letter and to that document he attached an exhibit which the government considers a tax form. Department of Treasury. It is written from the
He has redacted or it is a redacted

04:20:40
copy of the person's name, but it refers to a tax document and that is now an exhibit that is on the docket history list. I
would just ask if we could ask defense counsel to just simply send via mail and e-mail their discovery letters with these type of exhibits so we don't have to worry about the disclosure that is going out to the public regarding tax records and tax individuals over and above the defendants here. THE COURT: MR. SANDERS: Is there any problem with that, Counsel? Your Honor, to correct the government,
04:21:01
the exhibit that was attached is not a tax return and it contains no tax return information which are the two kinds of documents that are protected by the statute she's referring to. Section 6103 of Title 26. That document has none of that.
04:21:23
There was nothing -- nothing pursuant to the Section 6103 in that document. That document is not protected by Section 6103. Ms. Lemke?
04:21:53
THE COURT:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. LEMKE: Your Honor, early on in this case we
04:21:55
filed a pleading with the Court when it was before Judge Murguia as far as tax records. The government considers this
part of the tax records since it is sent to an individual private taxpayer holder. THE COURT: Let me ask you, Mr. Sanders, is there
04:22:08
some reason why the documentation has to be filed in the public record? MR. SANDERS: an exhibit, Your Honor. THE COURT: Okay. Well, let's not do that. Why That was the first time I had attached
04:22:23
don't you -- before -- I understand your need or your necessity to make sure the Court is aware of what your discovery needs are and your discovery requests that, although it's not a tax return or tax return documentation, might qualify under the statute as such or other statutes or regulations that are protected, then bring it to the government's attention first. If necessary, then I will take a look at it in camera and it will not be filed. MS. LEMKE: And, Your Honor, one of the reasons why I
04:23:04 04:22:43
wanted to put it on the Court's radar is asking that the discovery letters just be e-mailed and mailed rather than posted as an exhibit is currently there is a blog that is -has posted portions of the letter that Mr. Sanders wrote onto their website talking about this case. United States District Court
04:23:23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: That is an order. MS. LEMKE: And then, Your Honor, additionally, The Okay. Then we won't do that any more.
04:23:26
Washington Times has contacted Mr. Sanders and Mr. Sanders has provided statements regarding ATF regulations and ATF letter rulings although he does not specify this particular case. He and the individual that he has retained as an expert, Len Savage, have opined and spoken to the media about this. I don't think necessarily that I want to file a pleading But, again, I would ask if
04:24:03 04:23:40
for a media gag order at this time.
there could be an agreement, as Mr. Sanders is aware, to not try to take this case into the media and let's have the facts and the evidence presented in Court before the jury. THE COURT: Hold on. Let me see if I understand.
04:24:25
You're not asking for a gag order but you're asking for some types of limitation concerning contact with the press. That is
a very broad request that you're making and I certainly can't rule on that at this time. We do have local rules that pertain
to contact with the press and information that might be excluded from disclosure to the public where you have a criminal investigation and a criminal prosecution. going to order anything. You are to talk with counsel about it. reach an agreement, that's good. If you can I am not
04:24:52
If you can't, then there are You can bring

04:25:12
rules and there's the law that pertains to it. United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it to my attention and this is the type of thing that we don't need to do in court. This is the type of thing where you bring
04:25:15
it to the attention of counsel, you confer and as professionals, you resolve it. If you can't resolve it, it's a
04:25:30
First Amendment issue, it's an issue that involves the local rules of this Court and I will take it up only if it's a conflict. MS. LEMKE: THE COURT: MR. CONTE: THE COURT: Yes, Your Honor. All right. Anything else?
Your Honor, I -Wait, wait, wait, Mr. Conte.
04:25:45
Now, Mr. Conte, I've allowed you to appear by phone but only speak if I will call upon you. government now. Anything else, Ms. Lemke? MS. LEMKE: THE COURT: No, Your Honor. All right. Thank you.
04:25:59
I am talking to the
Mr. Bartolomei?
MR. BARTOLOMEI:
Your Honor, the only thing that
concerns me at this time is I don't know what we're going to be receiving and the extent of the materials as well as how that will impact our preparation. I have raised this in a
04:26:06
conference call that I set up with among defense counsel with regards to discovery dates and things like that. in agreement that the dates are not feasible. Everyone is
Of course
04:26:35
subject to -- Your Honor makes that decision but we are all in United States District Court
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. much. THE COURT: MR. CONTE: And Mr. Conte? I would like to comment on the
04:27:22
agreement that it appears that we're not ready to proceed. THE COURT: Well, I have been known occasionally to
04:26:38
be reasonable so if there is a sound reason for us not to go to trial or for me to extend dates, then I will do so. And,
04:26:57
Mr. Bartolomei, I know that you will make every effort to suggest a continuance, if necessary, but only a reasonable continuance in conjunction with the United States government. All right. MR. SMITH: MR. TATE: THE COURT: MR. SANDERS: Anything else? No. No. Thank you, Your Honor. Thank you, Your Honor. Mr. Sanders, anything else? Thank you very
04:27:15
All right.
Nothing, Your Honor.
government's last topic. THE COURT: Well, is there -- I think I have resolved
If there is an issue about communication with the press, There are local rules. There's the
04:27:41
there are statutes. constitution.
Counsel are to confer and try to work it out.
If you can't work it out, it is only then that you bring it to my attention. All right. We're adjourned.
(Whereupon, these proceedings recessed at 4:27 p.m.) * * * * * United States District Court
04:27:53
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 United States District Court
04:27:53
C E R T I F I C A T E
04:27:53
I, ELAINE M. CROPPER, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona.
04:27:53
I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control, and to the best of my ability.
04:27:53
DATED at Phoenix, Arizona, this 14th day of February, 2012.
04:27:53
s/Elaine M. Cropper _________________________________ Elaine M. Cropper, RDR, CRR, CCP
04:27:53

Hearing

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Hearing

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Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 1 of 36

February 6, 2012 3:36 p.m.

THE HONORABLE ROSLYN O. SILVER, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS STATUS HEARING

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 2 of 36

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 3 of 36

This is case number CR 10-1047,

appearing on behalf of Mr. Idan Greenberg.

And I would waive

Smith on behalf of Mr. Kalish. today's hearing.

We also waive his presence for

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 4 of 36

motion for status conference.

And we will talk in just a moment.

United States District Court

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 5 of 36

Anything from other defendants? I'm sorry. I believe that

MR. BARTOLOMEI: THE COURT: MS. LEMKE:

MR. BARTOLOMEI: THE COURT: Yes.

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 6 of 36

give the Court an advisement.

United States District Court

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 7 of 36

There is material that is in there

United States District Court

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 8 of 36

I don't see that they

So I don't necessarily have a

And, obviously, with regards to anything

But we need the materials in order to properly

But at this point, it doesn't appear that And exercising the

the government believes that they are.

Is there anything else? Judge, not with regards to this

Case 2:10-cr-01047-ROS Document 255 Filed 02/14/12 Page 9 of 36

Who is going to speak first? Robert Sanders

If I may, Your Honor.

I'll begin if that's -- pleases the

Your Honor, to begin with the most

The Court at the last hearing asked to ignore --

This is a matter on which the firearms An oral approval was The

technology branch of ATF issued a letter.

received sometime in October of 2005 by the requester.

I, once again, haven't received them.

information that we have on those items. have.

But I'm telling the Court here today, unfortunately, I I

didn't bring all of the discovery requests that were done.

turned it over. I have.

I believe I have but I do want to confirm that

Your Honor, that's correct.

We've turned over scanned copies of discs That information is searchable

Hold on for a second.

Yes, Your Honor. Why is it you think you haven't received

It has been clear that counsel need

United States District Court

common term for it within ATF.

And to aid the Court, Your

I have not received it, nor have I received a

know, it fell into a black hole.

We've heard this in open court but somebody from ATF

This is what did happen.

or it was properly handled.

So there has to be at least an

United States District Court

ATF never seized the gun or