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Robert E. SandersAttorney and Counselor at Law

109 Candlewyck DriveWinston-Salem, NC 27104

Robert E. Sanders, EsquireMember District of Columbia Bar telephone (336) 659-2999Member Illinois Bar facsimile (336) 765-9950

TRANSMITTED VIA E-MAIL

November 29, 2011

Kathy Lemke, EsquireAssistant United States AttorneyTwo Renaissance Square40 North Central Avenue, Suite 1200Phoenix, AZ 85004

RE: November 21 Discovery Conference CallDiscovery Letter # 10

Dear Ms. Lemke;

This is to follow-up our telephone conference call. I think I am speaking for theother participants in thanking you for participating at a time that you are very busy. I alsowrite to inquire about the status of a few of my earlier requests and add a few based onrecent disclosures of information.

We discussed the status of the government’s discovery. You stated that it is almostcomplete; that defendants can expect nothing major to come other than some minorreplacements such as for illegible documents.

FTB LETTER RULINGS

On this subject, I stated that I knew of the existence of some letter rulings thatwere within the scope of my lengthy letter of September 19, 2011 but were not amongthose disclosed to me. Let me try again. Rather than go through another long and futileprocess, I will herein limit this to two very specific requests:

BALLOU BELT-FED DEVICE: In 2005, Historic Arms, LLC, a licensed and NFAqualified manufacturer, submitted plans, a prototype and a written request for approval to

Case 2:10-cr-01047-ROS Document 220-1 Filed 11/29/11 of 8

Kathy Lemke, Esquire

November 29, 2011

modify a MAC-10 registered machinegun into a belt-fed medium machinegun in 7.62 x54R caliber by means of replacement parts added to the MAC-10 registered machinegunreceiver. Historic Arms was informed that FTB had approved the request by way of aphone call from FTB personnel, who read the letter over the phone. The prototypesample was returned approximately the same day in late September/early October 2005but the determination letter approving the design was not received by Historic Arms. Some time in mid December of 2005, Historic Arms received a phone call from FTBChief Sterling Nixon and informed that FTB had rescinded its earlier approval and thatthe request was disapproved. Months later, on March 17, 2006, Historic Arms received aletter ruling disapproving the request.

I had asked for all letter rulings related to the Ballou Belt Fed submission in myearlier letter. You provided only a copy of the 2006 letter disapproving the request toconvert the MAC-11 into a belt fed SG medium machinegun.

In response to my earlier specific September 19 discovery/Brady request and thisspecific request, please cause a more diligent search and provide the following:

all correspondence in custody of the government relating to the request by HistoricArms to convert a registered MAC-11 to a belt-fed medium machinegun, toinclude a copy of the 2005 FTB letter ruling approving the conversion; a copy ofthe ATF Form 9310.3A, “ Correspondence Approval and Clearance.”; therelevant entries in the FTB evidence log showing receipt and return of theprototype sample; the shipping documents; and all other notes and writings bywhatever name contained in the official FTB File styled Ballou Belt FedDevice/Historic Arms, LLC., and 2005-2006.

BM-3000: This was not included in my earlier specific request for FTB letter rulings butit is within the scope of numerous general requests on this same subject. Please considerthis a specific request.

Sometime in 2005, the same above described Historic Arms, LLC submitted plans,a prototype and a written request for approval to convert a MAC-11 registeredmachinegun into a belt-fed light machinegun in 7.62x39 caliber loosely based on and

Case 2:10-cr-01047-ROS Document 220-1 Filed 11/29/11 Page 2 of 8


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using parts the Russian RPD machinegun. In response to this specific request, pleasecause a more diligent search of system of records for FTB and Office of ATF ChiefCounsel systems of records and provide the following related to the BM-3000:

all correspondence in custody of the government relating to the request by HistoricArms to convert a registered MAC-11 to a belt-fed light machinegun, to include acopy of the three FTB letter rulings both approving and subsequently disapprovingthe conversion; a copy of all ATF Forms 9310.3A, “ Correspondence Approvaland Clearance.”; the relevant entries in the FTB evidence log showing receipt andreturn of the prototype sample; the shipping document(s) for the sample; and allother notes and writings by whatever name contained in the official FTB Files forthe below listed control numbers. These letters are referenced under ATFdocument control numbers [903050:RDC 3311/2005-343], [ 903050:RDC3311/2005-500 (dated July 15, 2005)], [ 903050:RDC 3311/2005-500 (dated April20, 2006)]

RESPONSE TO NFA ERROR LETTER

Bates Numbers ROS 20064-65 were received recently and comprise a single NFAError Letter related to machinegun A6042075. The letter was prepared by an NFABranch Legal Instruments Examiner, Tammy Moss and sent to the transferor appearingon a Form 4 Application to transfer the gun to Peter Storm (The transferor is BattlefieldSports, Ltd., (John Brown). The Form 4 was signed by the transferor on 9/26/04 and itwas approved 6/25/05). The NFA Branch transaction number for this transaction is PB34107. I request a copy of all documents and writings in the Folder maintained by NFABranch labeled Transaction PB 34107. In particular, I request a copy of the response tothe Error Letter and all records of the actions taken by the NFA Branch to correct thevariance between the description of the firearm on the Form 4 and the description of thefirearm in the NFRTR.



November 29, 2011

RECEIPT OF RECENT FTB REPORTS

I received your email of 10/13/11 with an attachment, a report styled,“Supplemental Report of FTB Examinations 2008-514-KEM (Bates ROS 8191 - 8220)and 2009-114-KEM.” (Bates ROS 8310 - 8330). (Hereafter Vasquez October 2011Report). Neither your email nor the report itself gives any explanation for anything aboutthe report itself; for example, why was it necessary to retest items of evidence that hadalready been tested by an ATF Firearms Technician several years before. Re-testing ofevidence in a criminal investigation is not something that is common or routine. It is anexceptional and significant occurrence in and of itself. There must be a compellingreason for re-testing and that is usually related to the insufficiency of the report, errors inthe original tests, or some other out of the ordinary reason. The report does not give anyreason for re-testing evidence and does not identify the person or person requesting a re-examination or authorizing it. That information would appear on the ATF Form 3311.3,Request for FTB Examination, a copy of which did not accompany the report.

When first received, I assumed that the report was disclosed in compliance withthe “summary of testimony” requirements of FRCrP 16(a)(1)(G) although we discussed thattopic in our October 12 conference call. Following that call, I was left with the understandingthat we disagreed on whether this requirement had been satisfied by way of earlier disclosures ofCVs of the experts. After further review of the facts and circumstances of its creation anddisclosure, I can’t figure out where, how, when, or the authority for the re-examinations and re-testing.

The Vasquez October 2011 Report was authored by Government firearms expert RichardVasquez. It covers a great many samples with findings and conclusions of 200-300machineguns, only a few of which are identified in the indictment. The report raises authenticityissues which I cannot resolve with the information available to me. The report has no date; itdoes not indicate when and where Mr. Vasquez tested samples to support his new findings andconclusions. It does not indicate that the original author of the two official reports that are beingsupplemented, FTB Firearms Technician, Kenneth E. Mason was either consulted or interviewedabout the new findings and conclusions. Further; the report bears no indicia of any review andapproval by FTB Chief, John R. Spencer as do all other FTB reports received in discovery; thereport was not prepared on the FTB prescribed Form (3311.2) as has been the case with otherFTB reports received in discovery. The Vasquez October 2011 Report gives no reason for



November 29, 2011

supplementation of original reports and bears no evidence of whether the supplementation wasauthorized by anyone in FTB. There should be but there is no ATF Form 3311.3, transmittalletter indicating that supplemental information or re-testing of the evidence samples was needed. In addition, Mr. Vasquez is no longer assigned to the Firearms Technology Branch. Please1

provide the date of the report; when, where and how Mr. Vasquez did any examinations ortesting of samples or consulted with Mr. Mason before supplementing his original reports; and ,whether the supplemental report was reviewed and approved by anyone, particularly FirearmsTechnology Branch Chief John R. Spencer (if Mr. Vasquez was an FTB employee when thereport was executed); whether this report was retrieved from the custodian of records of theofficial system of records maintained by FTB. I also request a copy of the Form 3311.3,Transmittal Form indicating the requestor and specifying the type re-examination or re-testing tobe done by FTB. I also request that you instruct Mr. Vasquez to preserve all notes taken duringexamination and testing and during consultations and/or interviews with Messrs. Mason,Spencer, and particularly with the person or persons requesting the re-examination and testing.

As you know, before supplementing the reports of Mr. Mason, described above, theoriginal report in FTB 2008-514-KEM had already been amended by Mr. Vasquez – in February,2011. The original report was based on Mr. Mason’s physical tests and examinations of 161samples (my count). Of that number, 115 were suspected firearms, machineguns and/or otherNFA weapons and 46 of the samples were containers (boxes, bags, etc) holding parts (noquantities specified). The samples were delivered to the FTB laboratory in West Virginia on8/22/08 and the tests and examinations took a little more than a year. The report was prepared byMr. Mason in August, 2009. Whereas the original report bears the signatures of FTB FirearmsTechnician Kenneth E. Mason as the examining firearms expert and report writer and FTB ChiefJohn R. Spencer as reviewer and approving official, the Amended February, 2011 version of thereport is signed by Mr. Vasquez only – for Kenneth E. Mason and for John R. Spencer.

I also make a specific request for the same information and documents requested above

for the Vasquez October 2011 Report together with a true copy of all correspondence which isrelated to the re-testing of reports FTB Numbers 2008-114-KEM and 2009-514-KEM. I alsorequest that you instruct Mr. Mason to maintain all rough notes, drawings, photos, etc. made

Because the report is undated, it cannot be determined if Mr. Vasquez was employed by1

the Firearms Technology Branch when the supplemental report was written. On information andbelief, he was officially re-assigned to another organizational section of ATF in early August,2011.



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during the original examinations and testing of the above reports.

REQUEST FOR ALL ATF FORMS 3311.3 (EVIDENCE TRANSMITTAL FORMS)

All samples shipped or delivered by any means to the FTB facility are accompanied by anATF Form (Form 3311.3) (hereafter Transmittal Forms), the purpose of which is to preciselydescribe the articles being delivered to FTB, the date delivered and a copy of the form maintainedto prove receipt by FTB of the item(s) received and, most importantly, to inform FTB of whattype examination is needed by the requestor for purposes of the criminal case. Only a very fewForms 3311.3 have been provided in discovery. Each that I have reviewed requested“classification” of the sample. In all of the hundreds of examinations and tests, that is the sumand substance of the findings and conclusions of FTB – that the machinegun under examinationand testing is a firearm under the definition of Title 18 of the U.S.C. and is a “firearm” under thedefinition of Title 26 of the U.S.C. Not one sample came back with an expert opinion that thesample was manufactured after May 19, 1986.

You were present in the ATF Office in Arizona when all defense counsel were reviewingthe machineguns identified in the indictment. I asked Government Expert Vasquez about theabsence of the transmittal forms (ATF Form 3311.3) and was told that such forms are notrequired in order for FTB to accept property for testing. That response was made in yourpresence and in the presence of all and within the hearing of all who were reviewing the evidencein Phoenix on August 8, 2011. Subsequent to that event, you provided a copy of the FTBStandard Operating Procedures (SOP). They mandate clearly and unambiguously that a Form3311.3 is required to accompany any item or article delivered in any manner to accompanythe item to be tested. Please provide a copy of the transmittal form (ATF Form 3311.3) foreach sample (related to this investigation that was transmitted to the FTB facility or wasotherwise tested by FTB personnel). If your review reveals that there is any sample examined byFTB at its facility or elsewhere, for which there is no Form 3311.3 or other complete descriptionof samples, a clear violation of the Standard Operating Procedures, please furnish something inwriting to that effect. Such a change in the custody of evidence is significant, without a recordcould result in authenticity problems and gaps in the custody chain.

I also request, pursuant to United States v. Henthorn, 931 F.2nd 29, that you examine thepersonnel files of the Government’s experts and disclose all information that could cast doubtupon credibility and that meets appropriate standards of materiality.



November 29, 2011

Request for ATF Official Case Report and Transmittal Letter:

In view of the lack of clarity concerning the government’s theory of prosecutionevinced by the indictment and the volume of evolving interpretations of law found withindiscovery material, I request, pursuant to FRCrP 16(a)(1)(E), a true copy of the OfficialATF Case Report prepared and delivered to the U.S. Attorney for the District of Arizonatogether with a copy of the letter transmitting it from the Special Agent in Charge (SAIC)of the Phoenix ATF Office.

The official ATF case report is a concise summary of the entire investigation. Theinvestigation underlying this indictment was opened in 2006. The purpose of a casereport is to provide the United States Attorney with sufficient information for aprosecutive decision based on whether a federal crime or crimes occurred and that thesubjects of the investigation are linked to that crime or crimes. As such, both the casereport and the transmittal letter are documents within the government’s custody andcontrol and are material to the preparation of a defense. As a practical matter, both thecase report and the transmittal letter are prepared by the ATF case agent for the signatureof the SAIC.

Since this investigation spanned a transition period within the Office of the U.S.Attorney for the District of Arizona, there may have been at least three persons occupyingthat position, more than one case report; and/or more than a single transmittal letter. Ifso, please consider this a request for a copy of all and any related correspondenceregarding this investigation between the Phoenix ATF SAIC and the U.S. Attorney(s) forthe Judicial District of Arizona.

Follow-up Request for Exhibits 11 thru 29 of NFA SOP

You will recall that I told you that Exhibits to the NFA SOP were missing and thatI would furnish the details, location of the missing pages, etc. Sorry for the delay but themissing exhibits are on the disc you provided on 8/8/11. One file on that disc is titled“Exhibits 11 - 29" and contains the pages corresponding to each Exhibit but on each pagethere is the same text, “ISD will provide Exhibit (11 thru 29). The same disc has aseparate file for each of the numbered Exhibits (1 thru 10 and 30 thru 31 respectively).



November 29, 2011

Each file appears to contain the full text of each Exhibit other than 11 through 29. Yourresponse states that Exhibits 11 through 29 are not available. I don’t know what youmean by “not available.” Please explain.

Of course, should you have any questions or if I can provide any additionalinformation to clarify the requests herein, please call or write.

Sincerely,

/s/ Robert E. Sanders

RES/agEnclosures: nonecc: Messrs. Bartolomei, Conte, Foreman, Smith, Petti, and Tate


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Documents

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