THOMAS L. LUDINGTON, District Judge.
Defendant William Putman operates a firearms business in Caro, MI, which holds a Federal Firearms License (FFL). His son, Defendant Brandon Putman, is also affiliated with the business. Defendants live in a shared residence along with twenty-six family members.
According to the Affidavit of ATF Agent Stephen Ross (Agent Ross) in mid-November 2017, Brandon Putman went to Progressive Tool and Machinery in Elkton, MI and asked the shop owner if he could make 10 duplicates of a specific part, which the shop owner suspected to be a drop in-auto sear ("DIAS" or "auto-sear")
Based on this information, ATF obtained a search warrant for the Putman residence (the former residence). Ex. 1 at pg. 17, 32. The search warrant was executed on February 15, 2018 at 9:50am. Ex. 1 at pg. 56. Contemporaneously, another search warrant was executed at the Putman's new residence which was then under construction (the new residence). Ex. 1 at pg. 54. During the search of the former residence, ATF agents seized "one (1) Ruger, Model AR-556, multi-caliber rifle, serial number 850-7162" (the AR-15) which they found in William Putman's bedroom closet. Ex. 1 at pg. 56. Nothing was seized during the search of the new residence, although Brandon's phone was seized from his person during a search incident to arrest. Ex. 1 at pg. 55.
Based on the information provided during the September 7 hearing, it appears that the AR-15 was "functions checked" without ammunition on the day of the search (February 15) and the AR-15 tested as fully automatic without the addition of an auto-sear. The AR-15 was "functions checked"
During the search of the former Putman residence, Agent Jakubowski interviewed William Putman regarding the AR-15 found in his closet, and he explained that it was a gift from Brandon and that Brandon "tinkers" with firearms. Ex. 1 at pg. 35. The statement in Agent Jakubowski's report differs from the statement offered by Agent Ross during his grand jury testimony. See Ex. 3 at pg. 46; Ex. 4 at pg. 53. According to the government's latest brief (filed Sept. 4), Agent Ross was not present at the interview. Thus, in his testimony to the grand jury he was apparently offering a second-hand account of the statement. The government indicates that only Agent Jakubowski will testify concerning the statement William Putman made. His account of that statement is memorialized in his report. Ex. 1 at pg. 35.
On the morning of February 15, 2018, at 11:50am, ATF Agents executed a consent search of the Putman Family firearm business in Caro, MI. Ex. 1 at pg. 59. Six silencers were seized during the search.
On February 28, 2018, an Indictment was returned charging Defendant Brandon Putman with one count of knowingly possessing a firearm not registered to him in the National Firearms Registry and Transfer Record, specifically a drop in auto sear (DIAS), which is a machinegun under 26 U.S.C. § 5845(b), in violation of 26 U.S.C. § 5861(d). On April 11, 2018, a superseding indictment was returned charging Defendant Brandon Putman with one count of receiving a firearm (DIAS) made in violation of the law, pursuant to 26 U.S.C. § 5861(c), one count of knowingly possessing a firearm not registered to him (DIAS) in violation of 26 U.S.C. § 5861(d), and one count of knowingly possessing a firearm (DIAS) without a serial number, in violation of 26 U.S.C. § 5861(i).
On April 11, 2018, an Indictment was returned charging Defendant William Putman, II, with knowingly possessing a firearm not registered to him, specifically, an AR-15 converted to function in fully automatic mode, which is a machine gun under 26 U.S.C. § 5848(b), in violation of 26 U.S.C. § 5861(d). On July 10, 2018, Defendants filed a motion for joinder. Defendants also filed a motion for return of property (the silencers) as well as a motion in limine to exclude any evidence related to the silencers.
On April 30, 2018, Defendant William Putman was in attendance at Brandon Putman's arraignment. At the arraignment, Defendant William Putman was presented with his indictment, after which he allegedly approached Agents Jakubowski and Ross. During his conversation with the Agents, he allegedly stated that the reason Brandon "was attempting to manufacture multiple Drop-In Auto Sears (DIAS) for AR-15s was to start a family business." Ex. 1 at pg. 61 (Investigation Report — Spontaneous Utterance).
Pursuant to Federal Rule of Criminal Procedure 13, the Court may order a joint trial of separate cases if all offenses and all defendants could have been joined in a single indictment or information. Federal Rule of Criminal Procedure 8(b) provides that joinder of defendants is permissible if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. Whether to consolidate a criminal trial is a matter within the court's discretion. United States v. Halper, 590 F.2d 422 (2d Cir. 1978). A joint trial of multiple defendants is appropriate only if "a sufficient nexus exists between the defendants and the single or multiple acts or transactions charged as offenses." United States v. Johnson, 763 F.2d 773, 775 (6th Cir. 1985).
Here, a sufficient nexus exists between the facts giving rise to the criminal charges in these two cases. In the government's initial response to the motion for joinder, the government contended that the only similarity between the cases was the fact that the AR-15 (for which William is charged) was found during a search warrant obtained as a result of the investigation into Brandon Putman's DIAS. Resp. at 3, ECF No. 14 (Case No. 18-20242). The government further stated that the "drop-in auto sear that is the basis of the charges against Brandon Putman was not used to convert into a machinegun the AR-15 that is the basis of the charge against William Putman." Id. More recently, however, the Government has argued as follows:
Supp. Br. at 3-4, ECF No. 35 (Case No. 18-20133) (emphasis added). Moreover, Agent Ross offered the following testimony to the grand jury concerning the DIAS Brandon brought to the machine shop:
Ex. 4 at pg. 44, 53 (emphasis added).
These facts justify joinder, particularly considering the communal living arrangement, William and Brandon's participation in the family business, and the contention that Brandon sought the DIAS copies for a family business. Moreover, the government now states that a joint trial will be "acceptable" if the Bruton issue is waived.
The government's opposition to joinder has been based in large part on its contention that a Bruton issue might arise. In response to the motion for joinder, the government explained that it intends to offer "a statement" made by William Putman regarding the AR-15 to establish an element of his offense. The statement would be considered non-hearsay under Federal Rule of Evidence 801(d)(2) when offered against William. Brandon, on the other hand, would likely have a valid hearsay objection to the statement being admitted against him. In Bruton, during a joint trial, the trial court admitted a non-testifying co-defendant's confession which implicated both Defendants. Bruton v. United States, 391 U.S. 123 (1968). The trial court instructed the jury that the statement could only be used against the Defendant who made the statement, and that it must be disregarded as to the co-defendant. Id. The Supreme Court held that the admission of the co-defendant's statement was prejudicial error, and that a limiting instruction cannot cure the error. Id.
After the initial hearing on Defendants' motion for joinder, a great deal of effort was expended to identify the precise statement the government intended to introduce at trial. The government has now specified that the statement at issue is memorialized in Agent Jakubowski's investigation report, and reads as follows:
Ex. 1 at pg. 35. This statement has some tendency to inculpate Brandon as it speaks to his practice of "tinkering" with guns generally, which has some relevance to the crime for which he is accused (though "tinkering" is consistent with lawful behavior as well). Nevertheless, as both parties acknowledge, the Bruton issue is waivable. See United States v. Galeano, No. 91 CR 223 (JSM), 1993 WL 177853, at *3 (S.D.N.Y. May 17, 1993), aff'd, 50 F.3d 2 (2d Cir. 1995). Based on the discussion during the July 30 hearing, it appears that Defendant Brandon Putman intends to waive his Bruton objection to the above statement, while preserving his right to object to its admission on other grounds. Before joinder will be permitted, Brandon will be directed to file a written waiver of any Bruton objection to William's statement memorialized in Agent Jakubowski's report. The waiver should explain the nature of the Bruton objection and why he chose to waive the objection. A hearing will also be held and Defendant Brandon Putman will be questioned on the record regarding the waiver.
In its supplemental briefing, the government identified two additional statements made by William Putman that may give rise to a Bruton problem: "in April of 2018, William Putman, II, volunteered the information that Brandon Putman was trying to have multiple copies of a drop in auto sear made for a family business venture." Pl. Br. at 2, ECF No. 22 (case no. 18-20242). "At some point, William Putman, II apparently also said something to the effect that he was unsure how Brandon Putman would have the money to pay for the copies of the auto sear because expenditures had to be approved by the family." Id. 4, n. 3.
The parties engaged in extensive discussion on the record addressing whether they believe the statements to be inculpatory to the Defendants. However, Counsel for the government ultimately stated on the record that her intention is to offer the statements about the auto-sear against Brandon, not William, because the statements are not relevant to the case against William. Therefore, there is no apparent predicate for the admission of those statements, even if the cases remained separate. Accordingly, there is no reason to ask Brandon to waive an objection to the statements.
Defendants have also filed two motions concerning the silencers: a motion for return of property, and a motion in limine.
Defendants request the return of "six silencers that had been registered to the business" which ATF agents seized during a consent search of the business on February 15, 2018. Federal Rule of Criminal Procedure 41(g) provides that: "A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return."
First, there is no reason to believe the search of the business was unlawful. Defendants emphasize that the February 14 search warrant did not authorize a search for, or seizure of, silencers. However, the scope of the search warrant for the former Putman residence has little relevance to the search of the business where the silencers were seized. The search of the business was not conducted pursuant to the warrant; rather it was conducted pursuant to the consent of William and Kacie Putman. Ex. 1 at pg. 59. Defendants do not argue that the search went beyond the scope of that consent.
As for the seizure, however, it is not apparent that the government had a legitimate reason to seize or retain the silencers. When the government has a "continuing interest" in the property, the property does not have to be returned. United States v. Popham, 382 F.Supp.2d 942, 956 (E.D. Mich. 2005), aff'd, 250 F. App'x 170 (6th Cir. 2005). The government can demonstrate a continuing interest by showing that the property is contraband or necessary for an ongoing investigation. Id.
According to Agent Jakubowski's report, these silencers were "registered to the business but had not been entered into the bound books until that day." Ex. 1 at pg. 36.
In its response brief, the government emphasizes the requirement that silencers be registered in the National Firearms Registration and Transfer Record. A silencer is considered contraband if not registered to the person who possesses it. 26 U.S.C. §§ 5845(7) and 5861. Although Ephesians SOT expired in June, it was apparently valid on February 15, 2018, the day the silencers were seized. Furthermore, the silencers were apparently properly registered to both the third party purchaser and the original vendor. Thus, it does not appear that there was any anomaly or non-compliance with respect to the registration requirements.
Rather, the agent took issue with the fact that the silencers "were not entered into the bound books until that day." Ex. 1 at pg. 36. It is unclear when exactly the government contends the silencers should have been "entered into the bound books" and why the failure to do so until February 15 was problematic. Moreover, the government does not appear to contend that the failure to enter them "into the bound books" until February 15 renders them contraband. If this is the government's contention, it is unexplained and unsupported. The government vaguely asserts that "the silencers are potentially evidence of crimes that still may be prosecuted," but does not explain how the failure to enter the silencers "into the bound books" constitutes a crime. Nor does the government explain the relevance of the silencers to any ongoing investigation. Thus, to date, the government has not offered any valid reason for the initial seizure or continued retention of the silencers.
Nevertheless, the present situation does not readily lend itself to a simple resolution. Although it appears that Ephesians could have lawfully acted as the transfer agent prior to June 30, 2018, its SOT has now lapsed. Thus, as a practical matter, it appears that Ephesians cannot legally take possession of the silencers at this point in order to effectuate the transfer of the silencers to the third party purchaser. Nor can the government transfer physical possession of the silencers directly to the third party, as the transfer must be accomplished by a licensed transfer agent.
Accordingly, Defendants now ask the Court to simply direct the government to facilitate the transfer to the rightful owner "in accordance with law." Even assuming such an order would create any obligation on the part of the government that did not already exists, there is a bigger problem with the request. Specifically, Defendants have not established that they are aggrieved parties. Although rule 41(g) does not provide guidance on whether a party is considered "aggrieved," the Sixth Circuit instructs courts to "balance the legitimate needs of the United States against the property rights of the moving party." United States v. Francis, 646 F.2d 251, 263 (6th Cir. 1982)). It seems that the only harm Ephesians sustained, if any, as a result of the seizure of the silencers is that it lost its opportunity to perform the transfer service and collect the transfer fee. It can no longer do so, however, because its SOT has lapsed. Thus, Defendants lack standing to seek the return of the property on behalf of the purchaser. Accordingly, the motion for return of property will be denied.
Defendants also seek to preclude the government from introducing any evidence regarding silencers. Evidence is admissible if it is relevant and not precluded from admission by another evidentiary rule. Rule 401 provides that evidence is relevant if 1) "it has any tendency to make a fact more or less probable than it would be without the evidence and 2) the fact is of consequence in determining the action." Fed. R. Evid. 401. Even if relevant, Rule 403 provides that a court may exclude it if "its probative value is substantially outweighed" by the danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.
First, some clarification is in order regarding the identity of the silencers. A total of 11 silencers are at issue. Six silencers (discussed above) were seized from the business on February 15, and belong to a third party purchaser. These six silencers are in the government's possession, and are the subject of Defendants' motion for return of property. Two additional silencers were also registered to the business. William could not locate them on the day of the search of the business, but they were subsequently provided to the government. Defendants do not seek their return. Three additional silencers were registered to William Putman individually. The government did not seize them, and has apparently never seen them. All the government apparently knows about them is that they are registered in the National Firearms Registry to William Putman and, according to an ATF Agent, they are the right caliber to fit an AR-15. These silencers are apparently being kept under lock and key in the custody of an un-indicted Putman family member. Pursuant to the Court's order setting conditions of pre-trial release, Defendants divested themselves of all firearms, including the three silencers, and pre-trial services apparently approved of them being kept in the family member's custody.
Defendant William Putman contends that the existence of any of the aforementioned silencers has no relevance to whether he knowingly possessed an automatic weapon. The government responds that, with respect to the silencers registered to the business, they have no intention of offering them into evidence in their case-in-chief against William Putman. And, due to the lack of any apparent relevance of those silencers to the elements of his offense, the government will be precluded from doing so. It is unclear as of yet, however, what relevance that evidence might have for impeachment or rebuttal purposes. Accordingly, those alternative uses will not be precluded.
With respect to the three other silencers registered to William Putman individually, the government does intend to offer these into evidence during its case in chief. The government does not contend that his possession of these silencers was criminal or wrongful; to the contrary, the government acknowledges that his possession of these silencers was lawful. Nevertheless, the government contends that, because these silencers could be used to mask the sound of an automatic weapon and help evade detection, his possession of these silencers is relevant evidence for the jury to consider when determining whether he knew his AR-15 could function automatically.
The government explains as follows: ". . . William Putman's residence was located on acreage in a rural area. As a practical matter, as well as a matter of law, William Putman did not need to muffle the sound of a legally configured AR-15 rifle in such a rural setting." Resp. at 4, ECF No. 19 (case no. 18-20242). This explanation is not particularly persuasive. If his property was so remote that he would not need to muffle gunfire from lawful weapons, it would seem that he would not need to muffle gunfire from unlawful weapons either.
Moreover, silencers have a variety of lawful uses which have nothing to do with evading detection, such as protecting one's own ears. Although the silencers have some relevance to William's mens rea, the relevance is minimal absent evidence connecting the silencers to the AR-15 he is charged with possessing. The government has not yet identified such evidence, but indicates that such evidence may be forthcoming in the form of an affidavit of an ATF Agent. Defendants indicated they would like a chance to respond once they receive such an affidavit.
The government will be directed to produce the affidavit to the Court and to opposing counsel within 14 days of the entry of this order.
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