James A. Parker, SENIOR UNITED STATES DISTRICT JUDGE.
On May 2, 2014, Defendant Robert E. Adams filed a motion asking the Court to reconsider its denial of Defendant's motion to suppress the evidence seized from Defendant's home and business properties in January 2013. See DEFENDANT ROBERT E. ADAMS' MOTION TO RECONSIDER THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OR, IN THE ALTERNATIVE, TO HOLD A FRANKS HEARING (Doc. No. 48) (Motion to Reconsider). Defendant argues that the Court's denial resulted from its misapprehension of material facts concerning: (1) the dates of Defendant's 2011 travel to Canada, (2) the results of the 2006 and 2009 administrative compliance inspections of Defendant's firearms businesses, and (3) the contents of the importation paperwork submitted by Defendant regarding his purchase of firearms from Bud Haynes & Company Auctioneers (Bud Haynes & Company), a Canadian auction house.
In the response, the Government admits the Court mistakenly concluded that Defendant neglected to obtain approval, using a Form 6, to import 51 of the 133 firearms Defendant purchased from Bud Haynes & Company. But, the Government takes the position that this mistake was de minimis and opposes Defendant's Motion to Reconsider. See UNITED STATES' RESPONSE TO DEFENDANT ROBERT E. ADAMS' MOTION TO RECONSIDER THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OR, IN THE ALTERNATIVE TO HOLD A FRANKS HEARING (Doc. No. 57) (Response). The Government asks the Court to reaffirm the validity of the warrants, which authorized agents to search Defendant's possessions for evidence of firearms smuggling and related crimes.
On May 20, 2014, the Court held a hearing during which it questioned counsel about the importation process and asked counsel for the Government to identify all of the factors contained in the warrant affidavit that would give a reasonable person probable cause to believe Defendant was engaged in firearms smuggling.
The Court held a second hearing on June 26, 2014, after Defendant filed DEFENDANT ROBERT E. ADAMS' UNOPPOSED MOTION FOR LEAVE TO FILE A RESPONSE TO UNITED STATES' SUPPLEMENTAL BRIEF REGARDING DEFENDANT ROBERT E. ADAMS' MOTION TO RECONSIDER THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, OR, IN THE ALTERNATIVE TO HOLD A FRANKS HEARING (DOC. 69) (Doc. No. 70) indicating that Defendant disagreed with some of the facts the Government labeled as "undisputed."
In January 2013, Special Agent Frank Ortiz (SA Ortiz), a former Bureau of Alcohol,
In the Motion to Suppress, Defendant asserted that SA Ortiz knowingly or recklessly made false statements and omitted material information from the warrant affidavit. See Motion to Suppress at 22. Defendant argued that once these inaccuracies were disregarded the warrant affidavit would lack sufficient factual allegations to support a finding of probable cause. Id. at 26. In other words, Defendant asked the Court to suppress the evidence seized under the search warrants in accordance with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
In ruling on this request, the Court first considered whether Defendant had carried his burden of showing by a preponderance of the evidence that there were mistakes in the warrant affidavit and that these mistakes were either intentional or reckless.
Additionally, the Court found that SA Ortiz recklessly transcribed the expiration dates for Defendant's ATF Form 6 permit/permit applications
The Court then considered whether the excised warrant affidavit supported a finding of probable cause and concluded that it did. See MEMORANDUM OPINION AND ORDER (Doc. No. 39 at 13-20). The Court based its decision on its understanding of the factual allegations contained in the warrant affidavit, including a series of allegations involving Defendant's purchase of firearms from Bud Haynes & Company, a Canadian auction house, and his 2011 attempt to transship these firearms into the United States. As the Court understood the facts, Defendant had (1) purchased 133 firearms from Bud Haynes & Company; (2) obtained an approved Form 6 permit from ATF to import some, but not all of these firearms; (3) began the process of shipping all of the 133 firearms into the United States, without the required approved ATF Form 6 for 51 of the 133 firearms; but (4) eventually diverted the entire shipment and placed the firearms in a storage locker in Canada in violation of Canadian law.
Defendant now argues that the Court should have excised additional statements from the warrant affidavit, namely (1) the statement that Defendant flew to Canada on April 12, 2011 without a return ticket and (2) the affiant's characterization of the results of the ATF administrative compliance inspections, particularly the statement that a review of Defendant's 2009 business records showed that he was manipulating the records in violation of federal law. More importantly, Defendant contends — and the Government agrees — that the Court misconstrued a key fact concerning Defendant's approval to import the entire shipment of firearms purchased from Bud Haynes & Company. Defendant maintains that this mistake caused the Court to incorrectly rule that the excised warrant affidavit supports a finding that Defendant was operating an ongoing smuggling operation.
The Federal Rules of Criminal Procedure do not specifically authorize the filing of motions to reconsider. However, a district court is allowed to correct "alleged errors in its dispositions." United States v. Christy, 739 F.3d 534, 539 (10th Cir.2014). As in a civil case, the Court may grant a motion to reconsider:
Id. (internal citations omitted). Here, the parties agree that the Court made a significant factual error. Thus, it was appropriate for Defendant to file a motion to reconsider and for the Court to reconsider its prior decision in light of the true facts.
A court must invalidate a search warrant and suppress the evidence seized under the warrant if the defendant shows that "(1) ... the affiant knowingly or recklessly included false statements in or omitted material information from an affidavit in support of a search warrant and (2) ... after excising such false statements and considering such material omissions, ... the corrected affidavit does not support a finding of probable cause." United States v. Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir.2008) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). In other words, "honest errors by the affiant are not grounds for suppression." United States v. Sanchez, 725 F.3d 1243, 1247 (10th Cir. 2013). The reviewing court will accept all factual allegations in the warrant affidavit as true, even if they are not, unless there is evidence that the affiant acted in bad faith or in reckless disregard for the truth. Id.
However, once a defendant effectively questions the validity of a search warrant by proving that an affidavit contains intentional or reckless misrepresentations, as is the case here, the magistrate judge who issued the warrant cannot be considered the primary protection of a citizen's Fourth Amendment rights. See United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir.2010) (explaining that the magistrate judge is the sole protection of a citizen's Fourth Amendment rights in cases where the police have "been merely negligent in checking or recording the facts relevant to a probable-cause determination"). It becomes the reviewing court's responsibility to step into the magistrate judge's shoes and determine whether the excised affidavit supports a finding of probable cause.
Probable cause exists if "the facts presented in the [excised] affidavit would warrant a [person] of reasonable caution to believe that evidence of a crime will be found at the place to be searched." United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1330 (10th Cir.2003). In United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir.2004), the Tenth Circuit provided an extensive discussion of the probable cause analysis, in which it emphasized that "no single factor is determinative" and a court must "view the circumstances in their totality rather than individually." Id. Thus:
Id. (internal citations omitted). Keeping these words in mind, the Court will address each of Defendant's contentions.
In the MEMORANDUM OPINION AND ORDER (Doc. No. 39) denying Defendant's Motion to Suppress, the Court made the following factual finding, as part of its attempt to paraphrase the information contained in the warrant affidavit: "In April 2011, Defendant flew to Canada
Defendant now denies traveling to Canada on April 12, 2011 without a return ticket; he maintains that the Court must disregard this allegation because SA Ortiz should have known the information contained in the travel database was untrustworthy. Motion to Reconsider at 11. There are two problems with this argument. First, Defendant could have, but failed to raise an objection to this section of the warrant affidavit in the Motion to Suppress. See Christy, 739 F.3d at 539 ("A motion to reconsider should not be used to ... advance arguments that could have been raised earlier.").
Second, and more significantly, the Court is not free to reject a factual allegation in the warrant affidavit merely because Defendant asserts, without supporting evidence, that this fact is incorrect. See Franks, 438 U.S. at 171, 98 S.Ct. 2674 ("There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant."). Here, Defendant has not provided any evidence, in the form of an affidavit or testimony at any of the hearings, that Defendant did not travel to Canada without a return ticket on April 12, 2011. Instead, Defendant identifies a discrepancy between the Department of Homeland Security (DHS) record entry for Defendant's April 12, 2011 "trip," which Defendant denies taking, and the April 17, 2011 flight, which Defendant admits taking. The DHS record for the April 17, 2011 flight contains passport information, while the record for the April 12, 2011 flight does not. Based on this inconsistency, Defendant asks the Court to infer that Defendant must not have flown to Canada on April 12, 2011. Reply at 11. This is too great a conjecture. In the absence of any documentary evidence or testimony regarding the entry of passport information in the DHS database, the Court cannot simply assume there is some correlation or connection between the existence of passport information and accurate travel records.
Defendant also challenges the Court's finding that Defendant was "uncooperative and evasive" during the 2006 and 2009 administrative inspections of his business. Motion to Reconsider at 12-13. The Court
Defendant further disagrees with the Court's conclusion, lifted directly from the warrant affidavit, that Defendant was failing to maintain accurate records of his firearms transactions in 2009. Motion to Reconsider at 12-13. Defendant claims that the discrepancies between his 2006 and 2009 records, outlined in the warrant affidavit, were not suspicious and were the result of the instructions he received from a former ATF inspector. Id. Defendant's position is directly contradicted by the testimony of ATF Industry Operations Investigator (IOI) Theresa Duran. March Transcript at 72:2-21. While Defendant quarrels with IOI Duran's conclusion, he did not present evidence specifically controverting her sworn testimony. Nor did Defendant show that the problems with Defendant's recordkeeping identified by IOI Duran definitively resulted from Defendant's attempts to comply with ATF requirements. In fact, at least one of the recordkeeping issues discussed in the warrant affidavit cannot be explained away as the result of Defendant taking corrective action. According to warrant affidavit, in 2008, Defendant recorded the importation of eleven firearms in the book associated with his sole proprietorship, even though they were imported using Defendant's limited liability company license. WA ¶ 5. Because Defendant has failed to prove that the allegations concerning his inadequate recordkeeping were false, the Court will not exclude them from the warrant affidavit.
In the Motion to Suppress, Defendant argued that SA Ortiz intentionally and recklessly omitted material information from the warrant affidavit by failing to inform the magistrate judges that Defendant had obtained an approved Form 6 to import the firearms he purchased from Bud Haynes & Company. Motion to Suppress at 25-26. The Government did not disagree with Defendant's description of the underlying facts, but responded that there was no Franks violation because information concerning the approved Form 6 was not omitted from the warrant affidavit or otherwise concealed from the magistrate judges. UNITED STATES'S AMENDED RESPONSE TO DEFENDANT ROBERT E. ADAMS' MOTION TO SUPPRESS EVIDENCE (Doc. No. 32 at 20-21). The Government highlighted paragraph 21 of the warrant affidavit, which states that in June 2012 the affiant learned that the Form 6 "executed and filed by ADAMS in relation to the firearms" purchased from Bud Haynes &
The Court acknowledged that this section of the warrant affidavit was ambiguous and expressed sympathy with Defendant's position. See MEMORANDUM OPINION AND ORDER (Doc. No. 39 at 8). The warrant affidavit does not directly state that Defendant obtained a permit, an approved Form 6, associated with the Bud Haynes & Company shipment, and it does not describe the content of this permit. Instead, in order to interpret the warrant affidavit, the reader must notice the allegation in paragraph 21, discern its significance, and infer that Defendant had an approved Form 6 associated with the Bud Haynes & Company shipment. Nonetheless, despite this lack of clarity and conciseness, the Court concluded that information regarding the existence of the approved Form 6 for this shipment was not omitted from the warrant affidavit. Id. at 9. At that time, the Court was acting under the misapprehension that Defendant had only obtained approval to import part of the Bud Haynes & Company shipment. The Court believed Defendant had failed to obtain approval, using an ATF Form 6, to import 51 of the firearms in the shipment.
The Court based this conclusion on the warrant affidavit and the testimony of the affiant, SA Ortiz. Specifically, the warrant affidavit states that Defendant stored 132 of the 133 firearms he purchased from Bud Haynes & Company in a Canadian storage locker and that 51 of these firearms were not listed on Defendant's ATF Form 6A. WA ¶¶ 39-40. Based on the testimony of the affiant and the supporting briefing, the Court interpreted paragraphs 39 and 40 of the warrant affidavit as making a claim that Defendant never received approval, using an ATF Form 6, to import the 51 firearms not listed on the Form 6A. See UNITED STATES'S AMENDED RESPONSE TO DEFENDANT ROBERT E. ADAMS' MOTION TO SUPPRESS EVIDENCE (Doc. No. 32 at 22) ("While it is true that some of the guns defendant Adams listed on his Form 6 `Request to Import Firearms' were recovered from the Canadian storage locker, as set forth in paragraph 39 of the affidavit in support of the search warrant[,] 51 firearms recovered from the Canadian storage locker were not listed on the Form 6."); March Transcript at 89:15-22, 164:3, 169:16-20 ("They seized 132 firearms from the locker... I'm sorry, 131. Some of these firearms were listed on the Form 6 that Defendant Adams had submitted, but some of them, I believe 51 of them, were not." "There were 51 that were not on the Form 6 application." Q: "So on the one hand, your affidavit suggests that all the firearms are there, and then in the next paragraph, it suggests that one is missing." A: "Yeah, all the firearms in the Form 6, but not the 51, those are missing from the Form 6 is what I said.").
The parties agree SA Ortiz testified inaccurately and that the Court was therefore mistaken. The warrant affidavit correctly states that Canadian law enforcement officials found "fifty-one (51) additional firearms ... that were not listed on
Here, the warrant affidavit merely states that Defendant purchased 51 firearms from Bud Haynes & Company that were not listed on an ATF Form 6A. Thus, the warrant affidavit does not support the Court's finding that Defendant began the process of shipping 51 firearms into the United States even though he did not have the necessary ATF approval to import these firearms. This finding was both an inaccurate statement of the allegations in the warrant affidavit and an inaccurate statement of what really happened.
Regrettably, the Court's misunderstanding of the facts was critical to the Court's analysis. See MEMORANDUM OPINION AND ORDER (Doc. No. 39 at 18) ("[T]he Court considers Defendant's behavior regarding the shipment from Bud Haynes & Company to be the most significant. Defendant purchased firearms from a Canadian company for shipment to the United States, but did not seek approval to import the entire shipment. Instead, the shipment was diverted and placed in a storage locker in violation of Canadian law. This sequence of events strongly suggests that Defendant intended to clandestinely transport the 51 unapproved firearms into the United States."). Because the parties now agree that the Court misunderstood the facts surrounding the shipment from Bud Haynes & Company, the Court must reassess whether the excised warrant affidavit supports a finding of probable cause that Defendant was regularly engaged in firearms smuggling.
According to the Government, the Court should reaffirm its prior decision because the Court reached the correct conclusion: Defendant intended to smuggle the 51 firearms described in paragraph 39 of the warrant affidavit.
All told, the Government's response succeeds in making this theory sound plausible. However, the strength of the Government's current allegations against Defendant is immaterial. It is not the Court's job to decide whether, considering all the facts now known, SA Ortiz could have drafted a warrant affidavit that supported a finding of probable cause. The question is whether the affidavit he submitted to the magistrate judges, without all of the intentional or reckless misrepresentations, would convince a reasonable person that Defendant was smuggling firearms. See Garcia-Zambrano, 530 F.3d at 1254. In disregard of this standard, the Government bolsters its position with facts that were not included in the warrant affidavit.
The Government's Argument (taken verbatim The Facts as Supported by the Warrant from the Response): Affidavit: Step One: Sometime in the five year period According to the warrant affidavit, Canadian before 2011, defendant Adams purchased 133 law enforcement officials seized 132 firearms firearms from Bud Haynes in Alberta, Canada. from a Canadian storage locker rented by Defendant. A comparison of these firearms to a Bud Haynes & Company packing list showed one unaccounted for firearm. By implication, Defendant must have purchased 133 firearms from Bud Haynes & Company. While it seems reasonable to presume this sale occurred sometime between 2006 and 2011, the warrant affidavit never gives a sale date. 13 Some of the 133 firearms defendant Adams This is not a factual statement; it is merely planned to import lawfully and the rest he argument concerning how the Court should intended to smuggled into the United States. interpret the facts. Moreover, to the extent it is quasi-factual, there are no allegations in the
[
warrant affidavit concerning Defendant's intentions at the time of sale. Many of the firearms purchased by defendant The warrant affidavit does state that Defendant Adams are prohibited in Canada. In order for purchased 41 prohibited firearms from Bud defendant Adams, Bud Haynes or Conway Haynes & Company. However, it never Freight to obtain an authorization to export explains why this matters. It is completely firearms, especially the prohibited firearms, devoid of any factual allegations about the from Canada to the United States, defendant requirements for obtaining a Canadian export Adams has to have an approved ATF Form 6. permit. In other words, there are no allegations Otherwise, the firearms he has purchased will in the warrant affidavit to support a finding not leave the auction house of the shipper. that Defendant needed to file a Form 6 alerting the Government to the existence of the firearms he allegedly planned to smuggle into the country in order to trigger the release of these firearms from the shipper. Step Two: Defendant Adams obtains an First, because the warrant affidavit does not approved ATF Form 6 for 121 of the 133 provide a sale date, there is no indication that firearms. He claims that eleven of 133 firearms Defendant's submission of the ATF Form 6 is are antiques, those manufactured before 1898, "step two" rather than "step one." Second, the which do not require a Form 6. He also did not warrant affidavit does not contain any list one of the guns, which is not an antique, allegations concerning the content of the ATF the Winchester Model 75, .22 caliber, rifle, Form 6 associated with the Bud Haynes & serial number 47891 on the Form 6. Defendant Company firearms. The warrant affidavit Adams claims that this was an oversight, but merely informs the reader that Defendant had there is an unknown significance attached to an ATF Form 6 associated with the Bud the Winchester. 14 Haynes & Company shipment. [The Winchester] is one of two guns defendant There is, of course, no information in the Adams smuggled immediately into the United warrant affidavit presaging what would be States and which was found in his home and found in Defendant's home and business when business. the search warrant was executed. The Court must disregard the Government's arguments about the fruits of the search. Step Three: Adams completes the first part of a Once again, the warrant does not support a Form 6A listing eighty of the firearms from the finding that this was "step three." The warrant Canadian shipment. affidavit never states when the ATF Form 6A was completed or submitted to CBP. Additionally, the warrant affidavit never directly states that Defendant himself completed the ATF Form 6A. Finally, according to the numbers in the warrant affidavit, the ATF Form 6A contained a list of 81, not 80 firearms purchased from Bud Haynes & Company.
[
The ATF Form 6A (5330.3C) is a different The warrant affidavit references the Form 6 document altogether from the Form 6. It is and the Form 6A, but it never directly explains required for every importation of firearms, the distinction between the forms or the ammunition, and/or implements of war, with purpose of each form. There are no allegations certain exceptions listed in 27 C.F.R. §§ 447 in the warrant affidavit about the normal and 478. It has three sections ... When process for completing an ATF Form 6A. completed by Customs and Border Protection (CBP), the Form 6A is, in essence, a receipt indicating that firearms that were approved for importation by ATF in the Form 6 were actually imported through a commercial port of entry or that a percentage of the originally approved firearms were imported. As required, Adams sent the Form 6A with As previously stated, the warrant affidavit does Section I completed to Customs and Border not say that Defendant directly submitted the Protection officials at the Port of Entry in Form 6A to CBP. Moreover, the warrant Sweetgrass, Montana. affidavit does not indicate which sections of the form were filled in. This is not surprising as the warrant affidavit never mentions the three sections on a Form 6A and their various purposes. The eighty firearms listed on the Form 6A are This theory is not described in the warrant the firearms defendant Adams intends to affidavit and is, in fact, directly contradicted by import lawfully. The remaining fifty-one guns the allegations in paragraph 39 of the warrant that were listed on the Form 6, but not on the affidavit, which states that Defendant "falsified Form 6A are the firearms that Adams intends ATF F6A, as he never intended to import the to smuggle into the United States along with an dozens of firearms he secreted into his unknown number of antique weapons which Canadian Storage locker." In other words, SA are not listed on either form. Ortiz, a former ATF agent, believed Defendant intended to smuggle the 81 firearms listed on the Form 6A. The Government now contends just the opposite: Defendant intended to legally import these firearms, while smuggling the remaining 51. Defendant Adams did not want to list the See previous note about the lack of allegations firearms that he intended to smuggle on the concerning the Form 6A. Form 6A because CBP is required to send a copy of the Form 6A, with Section II completed, to ATF and there would be a record of the importation. Step Four: Adams flies to Canada and takes According to the warrant affidavit, Defendant possession of the 133 firearms from Conway flew to Canada in April 2011 without a return Freight. Instead of driving immediately to a ticket. He then returned to Canada by plane commercial port of entry, [Defendant] secrets shortly thereafter. The Bud Haynes & [the firearms] in a Canadian storage locker in Company firearms were later discovered in a
violation of Canadian law. storage locker rented to Defendant. Thus, it is reasonable to infer that he placed the firearms in the storage locker. [T]he Gevarm .22 caliber rifle and the There are no allegations in the warrant mysterious Winchester, he smuggles affidavit concerning the Winchester. As for the immediately either using his forged Form 4457 Gevarm, the warrant affidavit merely states or by FedExing them to himself. that it was listed on the Bud Haynes & Company packing list, but was not recovered from the Canadian storage locker. One could plausibly infer it was smuggled, but there is no direct evidence in the warrant affidavit to support this finding. When Canadian law enforcement officials raid A correct summary of the facts (as they appear the storage locker, they find 131 firearms. in the warrant affidavit) would state: Detective John Fulton with the Calgary Police When Canadian law enforcement officials raid compares the firearms from the storage locker the storage locker, they find [132] firearms. with the Form 6A that defendant Adams Detective John Fulton with the Calgary Police submitted to CBP, and finds that fifty-one of compares the firearms from the storage locker the guns in the storage locker are not listed on with the Form 6A[] , and finds that fifty-one of the Form 6A. Agent Ortiz compares the list of the guns in the storage locker are not listed on the seized firearms with the Form 6 that the Form 6A.[Detective Fulton informed SA defendant originally submitted for ATFOrtiz that a comparison of the firearms approval and finds that one gun is missing, theseized from the storage locker with the Bud Gevarm.Haynes & Company packing list reveals] that one gun is missing, a Gevarm.
As this review demonstrates, there are numerous discrepancies between the Government's present understanding of the case and the allegations contained in the warrant affidavit. This is unsurprising as it appears that SA Ortiz, the affiant, was confused about the importation process. At the March 14, 2014 hearing, SA Ortiz testified that a Form 6A is filed after the firearms are "physically present in the United States" and "the only thing [an FFL] would have with him [when he accompanies a firearms shipment across the border] would be a Form 6 which would not require a serial number at that point." March Transcript at 157:16-24. In other words, it appears that, as late as March 2014, SA Ortiz did not realize an FFL must complete the first part of the Form 6A in order to bring a shipment of firearms through CBP. This might elucidate why SA Ortiz confused the Form 6 and Form 6A and repeatedly testified that he was not aware of a Form 6A associated with the Bud Haynes & Company shipment,
As it turns out, the facts are much more complicated and the parties have devoted lots of paper and a generous portion of their time disputing the nuances of the importation process and the facts surrounding the shipment from Bud Haynes & Company. Having provided a thorough exegesis of the Government's version of
Below is a list of all of the information contained in the excised warrant affidavit that is arguably relevant to the question of whether there was probable cause to believe Defendant was engaged in an ongoing smuggling operation.
The Government's position is understandable; SA Ortiz "didn't keep anything out of the affidavit[,] ... [but] put [in] everything that [he] knew about the case," March Transcript at 119:10-11, including rumors and unexplained occurrences. For example, as stated in fact 9 above, SA Ortiz reports that CBP Supervisor Fabian told him that an unidentified person at Milarm Company Limited, an organization about which there is no other information in the warrant affidavit, sent a fax claiming Defendant transported firearms into the United States by motor vehicle. This information is completely uncorroborated and there is no indication that the original, unidentified source of the information is trustworthy.
Similarly, fact 8 and fact 10 contain information suggesting Defendant may have imported firearms into the United States on September 3, 2008 and February 4, 2011. Yet, it is in no way clear from the affidavit that Defendant smuggled these firearms, rather than importing them openly and legally. While SA Ortiz intimates there may have been an irregularity with the February 2011 shipment, so that it was "contrary to and in violation of 18 U.S.C. § 923(a)," the federal firearms licensing statute, this part of the affidavit is incomprehensible. The Court has no way of confirming SA Ortiz's legal assessment. In light of the Government's failure to address these allegations, the Court will limit its attention to facts 1-6, and 11 listed above.
Once all of the extraneous information and argument is stripped away, the allegations on which the Government rests its case are meager. The Government asks this Court to believe that Defendant's "modus operandi" was to purchase firearms abroad with an approved ATF Form 6, divide the shipments, import some legally, presumably to shield himself from ATF scrutiny, and smuggle the rest. However, the warrant affidavit contains no tangible, concrete evidence from which a person could draw a reasonable inference that Defendant perpetrated this type of scheme on more than one occasion. To the contrary, the Government argues that Defendant
The only allegations in the warrant affidavit which directly support the Government's theory are those concerning the Bud Haynes & Company shipment, which is the lynchpin of the case against the Defendant. While these allegations are confusingly delineated, the Government's argument is, at heart, fairly simple: the only reason for Defendant to not list 51 of the 133 firearms purchased from Bud Haynes & Company on the ATF Form 6A and then to store these firearms in a storage locker, in violation of Canadian law,
After carefully ruminating on the allegations in the warrant affidavit, the Court is not comfortable drawing any inference about Defendant's intent from the barebones allegations about the Form 6A. In other words, the Court finds that the excised warrant affidavit does not support an inference that Defendant intended to smuggle the 51 firearms omitted from the Form 6A. In weighing whether this was the right determination, the Court repeatedly returned to the complexity of the firearms importation process. The experience and knowledge of the average person does not encompass the steps an FFL must take when shipping firearms through CBP. Without the help of an expert, a magistrate judge would not know whether irregularities in a Form 6A are common or are instead indicative of criminal behavior. Stated differently, without the expert opinion of an affiant familiar with the firearms importation process, a judge would have no way of knowing whether it was suspicious that Defendant submitted an ATF Form 6A, at some unidentified point in time, listing only 81 of the 133 firearms Defendant purchased from Bud Haynes & Company.
In short, the reference to the Form 6A contained in the warrant affidavit is a cipher. The warrant affidavit never clearly explains the difference between and the purposes of the ATF Form 6 and the ATF Form 6A. The warrant affidavit does not inform the magistrate judge that (1) an ATF Form 6A must be submitted to CBP before CBP will release a shipment of firearms into the country, see ATF Form 6A, Exhibit 3 to Response (Doc. No. 57-3); (2) CBP generally reviews each shipment against the Form 6A, May Transcript at 13:10-17, 50:4-10; (3) FFLs normally submit the Form 6A to CBP the same day a shipment is crossing the border, but these forms are occasionally submitted in advance, May Transcript at 52:7-12; and (4) the Form 6A is not signed and executed by the FFL until after the shipment is released into the possession of the FFL
There are simply too many missing pieces for the Court to create a coherent, or even semi-coherent, picture of criminal activity. For example, the warrant affidavit does not state when Defendant (or his agent) submitted the Form 6A to CBP, nor does it otherwise indicate whether the Form 6A was submitted before or after Defendant finalized his purchase and Bud Haynes & Company shipped the firearms.
Similarly, the warrant affidavit does not contain any factual allegations indicating when or why Defendant came to be in possession of the 133 firearms purchased from Bud Haynes & Company. Unless the magistrate judge sorted through the mix of allegations and noted and gave credence to the suggestion that Defendant's proposed shipment may have been rejected by CBP, it would have been completely mysterious why Defendant placed the entire shipment, including the 81 guns the Government now claims Defendant planned to legally import, in a storage locker in violation of Canadian law. However, because the warrant affidavit indicates that Defendant's shipment may have been rejected by CBP, the Court cannot infer that Defendant's decision to place these firearms in a storage locker was, in itself, suspicious.
To summarize, there is basically no information in the excised warrant affidavit indicating that Defendant's omission of the 51 firearms from the ATF Form 6A was underhanded or otherwise consistent with a smuggling enterprise. To the contrary, the facts as outlined in the warrant affidavit militate against a finding that Defendant intended to clandestinely transport these firearms into the country: according to the excised warrant affidavit, Defendant placed the entire shipment of firearms purchased from Bud Haynes & Company, including the 51 firearms omitted from the Form 6A, in a storage locker in his name in September 2011 and left them there until Canadian officials seized them in July of 2012. In other words, despite ample opportunity to do so, Defendant never actually smuggled the unlisted 51 firearms across the border. If, as the Government maintains, Defendant always, from the moment of purchase, intended to smuggle these firearms, he presumably had a plan for transporting the firearms into the United States. Yet, in the more than ten month period in which the firearms sat in
However, this one missing firearm does not an ongoing smuggling operation make and cannot support the search and seizure of all of Defendant's firearms.
Throughout this analysis, the Court has continually kept in mind the background facts, which form the context of the investigation of Defendant: Defendant had a history of recordkeeping violations, he advertised firearms for sale as not having importer's marks, and Defendant submitted 18 Form 6 applications to import firearms between 2008 and 2011. Nonetheless, these facts do not significantly weight the probable cause analysis in favor of the Government. The Court has already explained why it does not consider Defendant's submission of Form 6 applications to be suspicious. See MEMORANDUM OPINION AND ORDER (Doc. No. 39) at 16-17.
Because the Court concludes the excised warrant affidavit does not support a finding of probable cause that Defendant was engaged in an ongoing smuggling operation, the Court must suppress the evidence seized under the search warrants. Even though the warrant affidavit may support a finding of probable cause that Defendant smuggled the GEVARM .22 LR rifle into the United States, it is clear that this part of the warrant affidavit cannot be meaningfully severed from the invalid sections of the warrant affidavit. See United States v. Sells, 463 F.3d 1148, 1155, 1158 (10th Cir.2006) (explaining that a court may not sever the invalid sections unless the valid sections are distinguishable and, taken together, make up the majority of the affidavit).
IT IS THEREFORE ORDERED THAT:
