Motion to Suppress Evidence

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Robert E. Sanders109 Candlewyck DriveWinston-Salem, NC 27104Phone: 336.659.2999Fax: 336.765.9950email: [email protected] for Randolph B. RodmanPro hac vice

UNITED STATES DISTRICT COURTfor the

DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff, v.

RANDOLPH B. RODMAN,

Defendant.

CR-10-1047-ROS

MOTION OF RANDOLPH B. RODMANTO SUPPRESS EVIDENCE SEIZED INEXECUTION OF SEARCH WARRANTS08-2630-JKB AND 08-2631-JKB WITHPOINTS AND AUTHORITIES INSUPPORT THEREOF“Evidentiary Hearing Requested”

Defendant, Randolph B. Rodman, by and through Counsel, respectfully moves this

Honorable Court for an Order to quash District of Maryland Search Warrants numbers 08-2630-

JKB and 08-2631-JKB (the residence and business of defendant Rodman, respectively); to1

vacate the ATF Administrative Forfeiture Proceedings now pending against eighteen (18)

Defendant Rodman is licensed to engage in the business of manufacturing firearms 1

(FFL) at his business property. He is also authorized, as a Special Occupational Taxpayer (SOT)to manufacture and deal in machineguns at the same location. Status as an FFL, payment of anannual tax of $1,000.00 per annum and registration with ATF is required to engage in thebusiness of manufacturing NFA “Firearms,” including machineguns. (Hereafter, a personlicensed to engage in a firearms business and who is a Special Occupational Tax payer will bereferred to as an FFL/SOT.)

1MOT SUPPRESS FINAL 091412.wpd

Case 2:10-cr-01047-ROS Document 338-1 Filed 09/14/12 Page 1 of 37

mailto:[email protected]

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firearms seized during the search of the residence, and twenty-eight (28) firearms and six (6)

pieces of industrial machinery seized during the search of the business; and to suppress the use2

as evidence at trial all items seized under both warrants. In addition, defendant Rodman requests

a Franks hearing, if necessary, Franks v. Delaware, 438 U.S. 154 (1978) also, if necessary,a

Kastigar hearing to determine if the government has an untainted source for its evidence in CR-

10-1047 ROS. See Kastigar v. United States, 406 U.S. 441 (1972).

This motion to suppress is based on analysis of a single Affidavit prepared by ATF

Special Agent Patrick Sander for the issuance of search warrants for six (6) non-adjacent

properties. The arguments set forth herein are devoted solely to the few references in the

Affidavit that concern information about two such properties, the residence and business of

defendant Rodman.

FACTS

An Affidavit signed on August 19, 2008, by ATF Special Agent Patrick Sander allegedly

provided grounds for a Maryland Magistrate Judge to issue six (6) search warrants to search six

(6) properties located in the District of Maryland. Two of the warrants, Numbers 08-2630-JKB

and 08-2631-JKB, respectively, were for the Rodman residence and the business. Regarding the

two Rodman properties, the Affidavit provides neither probable cause for a search, nor

particularity of items to be seized. Thus, Search Warrants 08-2630-JKB and

08-2631-JKB were improvidently issued.

The government commenced Administrative Forfeiture Proceedings against this2

property on or about September 29,2008, under the National Firearms Act Forfeiture Section, 26 U.S.C. § 5872. However, some of the firearms are not firearms as defined in the NationalFirearm Act and are not subject to forfeiture. The government lacks jurisdiction to forfeit anyproperty except National Firearms Act “firearms” and ammunition. Four years after the seizures,the government has not filed a Complaint to forfeit any of the property seized from defendantRodman’s home or business and has ignored his requests for a jurisdictional determination.



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THE SCALE AND TIME LINE OF EVENTS RELATING TO DEFENDANT RODMAN

Between August 31, 2000, and February 20, 2008, the ATF National Firearms Act Branch

approved thirteen (13) ATF Forms 3, Applications to Transfer a machinegun to defendant

Rodman. The Applications had been filed by defendant Clark, who had made changes to each

machinegun involved. In October, 2006, ATF had determined that the changes made by Clark

were not modifications but were, in fact, new machineguns. Because the changes were made

after 1986, the transfer of the machineguns was prohibited by 18 U.S.C. § 922(o). The approval

of each application by ATF was itself illegal and in violation of the mandate of 26 U.S.C. §

5812(a) which provides, “Applications shall be denied if the transfer, receipt, or possession of

the firearm would place the transferee in violation of law.”

The approval of Clark’s applications had grave consequences: The transferor’s shipment

would be unlawful; the transferee’s receipt and possession would be unlawful; any attempt to re-

transfer it by the transferee would be unlawful; and the cycle of commerce could continue ad

infinitum. The cycle ended on or about October, 2006, when ATF determined that defendant

Clark was manufacturing new machineguns and halted the approval of his applications to transfer

machineguns. Every Form 3 submitted by defendant Clark described a machinegun that

significantly differed from the description of the same machinegun recorded in the ATF National

Registry. The machineguns involved had been registered to defendant Clark and were receivers

of a MAC-style machinegun. The receiver of a machinegun, standing alone, is a machinegun

only because it is defined as such in Section 5845(b) of Title 26, the National Firearms Act. The

term “receiver” is defined in 27 C.F.R. 479.11 Meaning of Terms, as “that part of a firearm

which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is

usually threaded at its forward portion to receive the barrel.” Machinegun receivers can be

registered and transferred because they are statutory machineguns; as such, they are subject to the

$200.00 transfer tax. Receivers that were registered before May of 1986 have value for one

reason only. They can be used to build a fully operable machinegun. That concept describes



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defendant Clark’s business plan: buying registered receivers and building fully operable

machineguns around the portion bearing the registration data.

1993 - 2000: DEFENDANT RODMAN DOES NOT KNOW DEFENDANT CLARK

In or about 1993, Defendant Clark, an FFL/SOT, implemented a business plan on the

premise that the portion of a machinegun receiver bearing the markings required by law (Original

Manufacturer, Model and Serial Number) is the machinegun itself; that it is lawful for an

FFL/SOT to remove that portion and build a machinegun around it; and that the resultant

machinegun would retain the registered status of the registered machinegun. Between 1993 and

2009, defendant Clark performed that process on thirty-four (34) machineguns. He offered the

modified machineguns for sale to friends, in trade publications and on the Internet, sold them

then applied to ATF for permission for their transfer. Each of the thirty-four (34) application

forms submitted by defendant Clark was approved by ATF, and none was even questioned until

in or about October, 2006. Since all modifications occurred after May 19, 1968, and were

subject to the application of 18 U.S.C. § 922(o), ATF initiated an investigation to determine

whether defendant Clark had violated numerous sections of National Firearms Act (NFA). In or

about November, 2006, ATF “froze” all future transfer applications by defendant Clark until

disposition of the pending ATF criminal investigation.

2000: DEFENDANT RODMAN MEETS DEFENDANT CLARK THROUGH THEINTERNET AND PURCHASES ONE MODEL 1919 MACHINEGUN

Some time in 2000, defendant Goldstein informed defendant Rodman that Clark was3 4

Rodman is informed by defendant Goldstein. In 2000, Goldstein was operating an3

Internet business, buying and selling firearms parts and accessories, a business which does notrequire licensure. Defendant Goldstein was also working informally as an agent for a fewFFL/SOTs, including defendant Rodman. As an agent, defendant Goldstein located buyers andsellers of National Firearms Act firearms and parts. In or about 2005, Defendant Goldsteinbecame an FFL/SOT.

In 2000, defendant Rodman had been an FFL/SOT since the early 1990s. His business,4

R & S Arms, remains licensed and current with Special Occupational Taxes. Defendant Rodmanis also licensed by the State of Maryland, Montgomery County and the city of Silver Spring,



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offering transferrable M-1919s for sale on the Internet. Prior to that time, defendant Rodman did

not know defendant Clark nor was Rodman familiar with Clark’s reputation other than that he

was an FFL/SOT in Arizona. From further inquiries, defendant Rodman learned the details of

Clark’s business plan. Although Rodman was skeptical of Clark’s methods, Rodman received

assurances that the Clark’s methods were compliant with ATF’s policies, that Clark had been

modifying machineguns for many years, and that ATF had approved every transfer application.

Rodman purchased one such machinegun, more or less a trial purchase, to review the quality of

the product, the workmanship and confirm the lawfulness of Clark’s methods.

On or about September, 2000, Defendant Rodman received machinegun Model-1919,

Serial Number 820101086 along with a Form 3 approved by ATF on September 21, 2000. The

Form 3 bore no indicia that the future transferability of the machinegun was restricted. The

absence of a restriction on an approved form is proof positive that machinegun 820101086 was

lawfully registered prior to May 19, 1986, that it was registered to Rodman in the National

Firearms Register and Transfer Record (NFRTR) and was transferrable. Defendant Rodman

found that the workmanship, material and aesthetics of the gun were superior - the work of a

master machinist.

Defendant Rodman offered the machinegun for sale, and Defendant Goldstein soon found

a buyer, John Brown , an FFL/SOT in Virginia. Defendant Rodman filed a Form 3 Application5

describing the machinegun exactly as it was described on the form transferring it to him. ATF

Maryland to engage in the same business. In this highly regulated business, R & S Arms hasbeen subjected to numerous federal and state compliance inspections of inventory and recordsand has an excellent compliance record. He has never been cited for violations of inventorydiscrepancies or record-keeping omissions - a remarkable record of compliance, where thebusiness norm is otherwise. R & S Arms is co-located with a Mercedes automobile repairbusiness, “The Auto Shoppe” operated by defendant Rodman for more that twenty (20) years onproperty and in buildings that he owns

In 2004, John Brown purchased another M-1919 machinegun, Serial Number5

A6042075, from defendant Rodman. In late 2006, this gun was a major part of ATF’sinvestigation of defendant Clark underlying the indictment in 10-cr-1047-ROS.



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approved the transfer on November 15, 2000, and the gun was shipped. During Discovery it was

learned that transferee John Brown sold the machine gun and transferred it to a Maryland

FFL/SOT.

2001: THE FIRST TRANSACTION BETWEEN DEFENDANTS RODMAN AND CLARK

For defendant Rodman, the approved Form 3 for machinegun S/N 820101086 was

indisputable proof of the legality of Clark’s manufacturing methods and the high quality of

Clark’s work. Defendant Rodman then placed an order with Clark for the purchase of three (3)

more M-1919 machineguns, once more with defendant Goldstein acting as Rodman’s agent.

ATF approved Defendant Clark’s applications to transfer (Forms 3). Defendant Rodman received

delivery of three M-1919 machineguns (A6041867, A6041868 and A6041869) in or about late

February of 2001. Rodman recorded the acquisitions in his official records and offered the

machineguns for sale on the open market. He sold them, applied for, and received, ATF

approvals for their transfer, and shipped or delivered each machinegun on or about May 2, 2001,

November 15, 2001, and June 16, 2005 respectively to an FFL/SOT in South Carolina, and to

two unlicensed individuals in Maryland. Defendant Rodman’s Applications to Transfer

described each machinegun according to its actual measurements, noting their consistency with

the descriptions on the Forms that transferred them to him. Transfers for each machinegun fully

complied with the law; all transfer taxes were paid; and Rodman complied with all record

keeping requirements. Most importantly, all of this was accomplished “under the authority of the

United States.”

2001: THE SECOND TRANSACTION

Rodman’s confidence in defendant Clark having been buttressed by the two earlier

transactions, Rodman entered a second transaction with Clark for the purchase of two (2) more

M-1919 machineguns. On or about January 2002, Rodman received machineguns A6042075

and A6041870, each accompanied by a Form 3 accurately describing the markings and

measurements of the machinegun. Defendant Rodman entered the acquisitions in his official



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records and openly offered the machineguns for sale. Both machineguns remained in Rodman’s

inventory for a few years until machinegun A6042075 was sold to John Brown sometime in

2004. Again, defendant Goldstein had done the negotiations for the sale. Defendant Rodman

applied for, and received, ATF approval to transfer A6042075; and it was delivered to John

Brown on or about November 11, 2004.

John Brown was an FFL/SOT in Virginia. He was President of the National Firearms Act

Trade and Collectors Association (NFATCA), a non-profit trade association advocating for the

interests of NFA manufacturers, importers and dealers, individual collectors, owners and others

considering owning NFA firearms. It was learned in discovery materials that he was also an ATF

Confidential Informant. Around time of the delivery of machinegun A6042075, the NFATCA,

and John Brown personally, were involved in a joint ATF/NFATCA research and writing project

to produce the “National Firearms Act Handbook,” intended as a reference guide to compliance

requirements and to inform members of ATF procedures, practices and interpretations. The final

handbook was completed on or about 2007 and since that time has been posted on the ATF

Website. The handbook project required continuous interface between Brown and Firearms

Technology Branch personnel at their West Virginia facility and particularly with the Acting

Chief of the Branch, Richard Vasquez. Notably, the NFA Handbook does not mention

modifications to registered machineguns, although modifications are a common practice.

On or about June 25, 2005, John Brown transferred machinegun A6042075 to a Virginia

resident on a tax-paid approved Form 4. The Form 4 Application documented the fact that the

machinegun had been modified while in Brown’s possession. The Form notes a barrel length

change from 24 to 13 inches, and an overall length change from 41 to 37.25 inches. After

possessing the machine gun for a little more than a year, on or about August 25, 2006, the

Virginia owner transferred it back to Brown on an ATF approved tax-paid Form 4, reflecting that

the gun had been modified again: the barrel length and overall length had been restored to 24



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inches and 41 inches, respectively. Machinegun A6042075 then remained in Brown’s possession

and registered to him.

According to numerous discovery reports, Brown was contacted by ATF and asked to

deliver machinegun A6042075 to the Firearms Technology Branch for examination and testing.

The testing was alleged to have been performed on October 31, 2006, by Richard Vasquez, the

Deputy Chief of FTB. The alleged FTB examination and testing of machinegun A6042075 and

the purported report thereof triggered an ATF criminal investigation of defendant Clark.

In fact, machinegun A6042075 was never officially received by the ATF Firearms

Technology Branch, it was never officially tested and no official report was ever prepared. These

facts have been verified through FTB evidence logs. However, A6042075 was tested and

examined by Richard Vasquez, then Acting Chief of the Branch at the Firearms Technology

Branch facility on October 31, 2006, but the examination was performed as a private matter; and

was not handled as an official examination of evidence.

Mr. Vasquez’s findings from the October 31, 2006, test were chronicled in numerous

official ATF reports, to wit: Vasquez concluded that the conversion of a MAC Model 10

machinegun to a Model 1919 machinegun constituted a new manufacture; therefore,

machinegun A6042075 was not registered and was a contraband unregistered machinegun. After

FTB’s conclusing that machinegun A6042075 was contraband, it was inexplicably returned to

John Brown who then transported the machinegun across state lines from the FTB facility in

West Virginia to his place of business in Virginia.

A disturbing question arising from ATF’s treatment of the testing discussed above is why

FTB examination of A6042075 was not treated as evidence or as an official work product of the

Firearms Technology Branch, and why was an official report not required. The only explanation

for why the entire matter was not made an official part of any ATF records was that it was treated

as a matter of personal privilege. The only reasonable conclusion is that the intent of the private

examination of machinegun A6042075 (in violation of numerous ATF statutes and procedures)



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was to conceal the fact that an ATF informant had bought, received, possessed, sold it and, in

fact had bought and transferred two other machineguns that were unlawfully manufactured by

Clark.

In November 2006, ATF Special Agent Quartetti of the ATF Falls Church, Virginia

office, was assigned the investigation of John Brown’s possession of machinegun A6042075.

Special Agent Quartetti contacted Brown to arrange for an examination of the contraband

machinegun. On November 21, 2006, Special Agent Quartetti met with Brown and his attorney

at Brown’s licensed business in Centreville, Virginia. Also present at the meeting were an ATF

attorney and ATF employees representing the National Firearms Act Branch and the Firearms

Technology Branch. Brown proposed to abandon the side-plate of machinegun A6042075, and

ATF agreed to that proposal. Thus, the entire machinegun less the right side-plate was left with

Mr. Brown and was never available for an official Firearms Technology Branch examination.

ATF’s practice of recognizing the right side-plate of a box receiver, such as the M-1919

as the registered part of a machinegun is a long standing practice within ATF. Further, this

practice is commonly known by collectors and machinegun owners throughout the industry.

Nevertheless, the facts concerning ATF’s care and custody of machinegun A6042075

becomes more inexplicable other than a desire by certain ATF employees to conceal the

involvement of a confidential informant. After taking custody of the right side plate of

machinegun A6042075 on November 21, 2006, it was placed into the ATF evidence vault in

Falls Church, Virginia where it remained until June 15, 2007 when it was delivered to the

Firearms Technology Branch in West Virginia to be tested and examined. While awaiting the

examination report and while the side-plate was still in the custody of the Firearms Technology

Laboratory, another strange event occurred. Special Agent Quartetti requested authority to

destroy it. The report of the examination was not completed until August 20, 2007, and the right

side- plate was returned to the Falls Church evidence vault. On August 8, 2008, the side-plate

was destroyed. In addition, there are no photographs of machinegun A6042075 either as a fully



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assembled M-1919 or as a right-side plate. Thus, defendant Rodman has been prejudiced by

being deprived of the opportunity to inspect and test vital evidence in this case.

On May 2, 2008, defendant Rodman was asked to abandon three Models 1919s and two

MAGs he had received from Defendant Clark. Each had a Form 3 approved by ATF and was6

still in inventory. (It is important to note that this situation was identical to that of Brown and

machinegun A6042075.) Defendant Rodman readily consented to abandon the three Model

1919s merely on the claims of the ATF Special Agents. Two of these were the right-side plates

of MAG machineguns. The Maryland Special Agents accepted Rodman’s abandonment of the

right side-plates.

Contrasting the treatment of defendant Rodman’s surrender of side-plates to Maryland

ATF Special Agents on May 2, 2008, with that of an ATF Informant, John Brown, ATF accepted

the abandonment of Mr. Brown’s side plate. In fact, in an e-mail received in discovery, Acting

Chief Vasquez offered to come to Brown’s place of business to assist in disassembling

A6042075 for Mr. Brown.

In describing an identical situation involving defendant Rodman a little more than a year

later, Mr. Sander states in the Affidavit that defendant Rodman’s abandonment of side-plates was

obstruction of justice and subornation of the obstruction of justice; that Rodman’s abandonment

of side plates “interfered in a federal investigation by not turning over evidence ...” and that he

(Rodman) “encouraged another person to follow his example.” (Affidavit, para. 52) Mr. Sander

Defendant Rodman received M-1919 machinegun A6041870 from Clark on or about6

November 11, 2001, and it was still in inventory; he received MAG machineguns A6042027 andA6042029 from Clark on or about May 5, 2002, and these were still in inventory. DefendantRodman ordered three M-1919 machineguns from Clark in or about 2003-2004; he paid in fullfor them but did not receive them or any explanation from defendant Clark. Following dunningcalls and e-mails to Clark, Rodman did receive Model M-1919 machineguns 820101546 and820101557 Rodman on or about February 20, 2008, and these were in his business inventory. Inthe meantime, on February 20, 2008, ATF had approved Clark’s application to transfer the thirdModel M-1919, 820101541, but Clark had not shipped the machinegun. Therefore, on March20, 2008, while while executing a a search warrant for Clark’s residence. ATF seizedmachinegun 820101541.



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further slanders Rodman in stating that he “appears to be hiding/concealing evidence that is

necessary in this federal investigation ...” (Affidavit, page 38,para. 68)

2002: THE THIRD TRANSACTION

Later in 2002, defendant Rodman placed an order with with defendant Clark for three (3)

MAG machineguns. Sometime in June, Rodman received MAG machineguns A6042027,

A6042028 and A6042029, accompanied by approved ATF transfer forms. One machinegun

(A6042028) was sold and transferred on a Form 4 to a Maryland individual. This transaction

fully complied with the NFA and implementing regulations and included payment of the transfer

tax. The other two machineguns (A6042027 and A6042029) were among the five abandoned to

ATF Special Agents on May 2, 2008. ATF later seized A6042028 from the Maryland individual.

2003: THE FOURTH TRANSACTION

In 2003, defendant Rodman placed an order with defendant Clark for a Thompson

machinegun, and on or about June 4, 2003, Rodman received machinegun A6042076 from

defendant Clark with an approved Form 3 registration. About a year and a half later, on or about

December, 2004, A6042076 was purchased by defendant Goldstein, who at this time was an

FFL/SOT. Defendant Rodman filed an ATF Form 3 application on December 19, 2004,

describing the Thompson precisely as it was described on the Form 3 transferring it and precisely

conforming to the measurements of the machinegun itself. The application was approved on

January 10, 2005, and the sale of machinegun A6042076 was completed with its transfer to

defendant Goldstein.

2004: THE FIFTH AND LAST TRANSACTION

Sometime in late 2003 or early 2004, defendant Rodman ordered three M-1919s from

defendant Clark and paid for them in full. However, the positive business relationship with

Clark began to unravel when defendant Clark failed to deliver anything and made no attempt to

contact Rodman or otherwise explain his failure to complete the sale and transfer. This was to be



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the last sales transaction between Rodman and Clark. (The actual transfer from Clark to Rodman

did not occur until sometime after February 20, 2008.)

In or about 2006, defendant Rodman caused calls and e-mails Clark regarding the status

of the three machineguns he had bought and paid for. Clark’s reasons for his lack of response

varied: he had health problems, he had trouble with parts and fittings, he was amending his

license, etc. Finally, on December 27, 2007, defendant Clark submitted three Form 3

Applications to ATF to transfer three model M-1919s (820101541, 820101546 and 820101557 to

defendant Rodman.

However, at that point, ATF had been investigating Clark since 2006 for unlawfully

manufacturing and transferring machineguns. ATF, and particularly Mr. Sander, knew that ATF

had already approved 31 applications from Clark to transfer machineguns which ATF suspected

of being unlawfully manufactured. Mr. Sanders also recognized that each transfer caused the

transferee (and future transferees) to be in unlawful possession of a machinegun. Further, at the

beginning of the Clark investigation ATF, had frozen all future transfer applications to and from7

Clark to prevent further “unfortunate” approvals which would place the receiving transferees in

violation of § 922(o) and numerous NFA laws.

In spite of the “freeze,” placed on the three machineguns discussed above, ATF approved

these three applications on February 20, 2008. The statute of limitations on substantive § 922(o)

offenses against defendant Rodman was nearing expiration; and, in fact, had expired by the time

this case was indicted. (The subject of intentionally approving the applications for the purpose of

creating new crimes with which to charge defendant Rodman is discussed in greater detail in

Defendant’s Motion to Dismiss for Outrageous Government Misconduct) (Docket Number 336).

To “freeze” a machinegun is a routine ATF investigative tool, the purpose of which is7

to avoid the horrific consequences of the approving of an application that would place theinnocent transferee in violation of numerous felony violations. The freeze is noted in themachinegun’s NFRTR registry, making it impossible for an application to be approvedinadvertently.



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Following approval of the three Form 3 applications, Clark shipped two of the

machineguns (Serial Numbers 820101546 and 820101557) to defendant Rodman who received

them and recorded the transactions in his official records. Both were in Rodman’s inventory and

abandoned to ATF Special Agents on May 2, 2008.

When considering probable cause issues related to defendant Rodman’s home, it should

be noted that each machinegun shipped by defendant Clark was addressed to, and received at,

defendant Rodman’s place of business, R & S Arms, and not his home. It should also be noted

that when preparing the Affidavit, Mr. Sander knew the exact location of every machinegun

suspected to have been unlawfully manufactured and transferred by defendant Clark. None of

them was at either of the Rodman properties.

THE OFFENSE

The Sander Affidavit loosely describes a plan conceived and implemented in 1993 by

defendant George Clark, an FFL/SOT in Arizona, to acquire registered MAC machineguns,

convert them into other styles of machineguns, and subsequently sell and transfer them. Simply

put, the modification of a registered machinegun is not an offense under the National Firearms

Act, 26 U.S.C. § 5801 et seq. or the implementing regulations, 27 C.F.R. Chapter II, Part 479.

Furthermore, the modification of a registered machinegun by an FFL/SOT does not violate 18

U.S.C. §922(o), since the statute exempts persons licensed to manufacture machineguns.

Defendant Clark was such a person, and in completing the ATF form required for transferring

modified machineguns, Clark accurately described the modified machinegun. As a result,

defendant Clark’s form showed radical discrepancies between caliber, barrel length and overall

length when compared with the description in the NFRTR. The differences in the descriptions

between the machinegun described on the application form and those for the same machinegun

recorded in the NFRTR were too obvious to be missed.

EXPLAINING 34 ATF VIOLATIONS OF § 5812 OF THE NATIONAL FIREARMS ACT



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Given the discrepancies between information of Clark’s forms and information in the

NFRTR, gives rise to the issue of why did the ATF National Firearms Branch approve transfer

forms that were patently inconsistent with NFRTR data. Why did ATF approve the forms when

doing so constituted a violation of 26 U.S.C. §5812? , which clearly states that, “... Applications

shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in

violation of law...”

In this case, ATF chose to prosecute the defendants for machineguns that had been

modified where there is no law or regulation prohibiting modifications, and elected not to

prosecute other individuals (i.e., government employees) where there is a clear and unambiguous

statute. The NFA penalty section, § 5871, specifies, “Any person who violates or fails to

comply with any provision of this chapter shall, upon conviction, be fined not more than

$10,000, or be imprisoned not more than ten (10) years, or both” and Section 5812 cannot be

violated by anyone other than ATF National Firearms Act Branch employees, given that only

government employees are authorized to approve transfers of machineguns that “would place the

transferee in violation of law ...”. Rodman is one person who was placed in violation of law.

ATF’s approval of 13 of the 34 Clark Applications is the sine qua non of every

substantive crime with which defendant Rodman is charged. Absent ATF’s unlawful transfer

approvals, he would never have received or possessed any of Clark’s “new” machineguns;

Rodman never could have offered any of the machineguns for sale, nor have filed applications

for their transfer. In short, defendant Rodman’s indictment is solely attributable to ATF’s failure

to deny Clark’s applications or refer them for criminal investigations.

Actually, ATF had approved thirty-four (34) applications and none had even been

challenged. Two explanations for the lack of challenges come to mind. The first and most

probable explanation is that National Firearms Act Branch employees were uninformed that

changes – minor or major – to a registered machinegun constitute the manufacture of a new,

unregistered machinegun as the Affidavit contends, and were trained to approve applications that



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documented modifications of all kinds as long as the other descriptions matched.

The second explanation for ATF’s wholesale approvals could be attributable to serious

instutional problems such as employee inattention to detail, carelessness, incompetence, or

reckless disregard for procedures. A senior ATF Executive described the violations as

“unfortunate.” (Bates, MHM000000271) Further, the cause may lay with incompetence, lack of

training, supervision, management review, or executive oversight. A final explanation offered by

some is that the National Firearms Act Branch, from top to bottom, is replete with waste, fraud

and abuse. (The undersigned does not hold this view.)

MR. SANDER’s DISCOVERY OF A LEGAL PRINCIPLE THAT ACCOMMODATESHIS VISION OF THE CASE

In Paragraph 19 of the Affidavit, Mr. Sander proffers an ATF legal opinion to offset the

lack of a statutory crime for establishing probable cause for the search warrants for Rodman’s

properties. He attests that an “ATF position” prohibits “significant changes” to registered

machineguns, adding that if this prohibition is violated, the machinegun becomes contraband

forever.

There is no authority for this legal interpretation and absolutely no basis whatsoever for

proclaiming such an absurdity under oath. No such legal principle or “ATF Position” exists.

The NFA does not prohibit or restrict changes to a registered machinegun, and ATF has no

published regulation regarding advice or guidance on changes to a registered machinegun.

Moreover, ATF has not published any ruling, notice, interpretation, policy, or guidance that

addresses the topic of machinegun modification.

Mr. Sander attests that his knowledge concerning changes to registered machineguns was

provided by officials of the ATF Firearms Technology Branch who told him that their

interpretation of law is “ATF’s official position,” although Mr. Sander does not identify the

officials and does not provide the date or context of the conversation. With regard to the case at

hand, several hundreds of machineguns and suspected machineguns were seized by – or

abandoned to – ATF Special Agents. All were delivered to the Firearms Technology Branch



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Laboratory, where ATF Firearms experts prepared official reports of findings and conclusions

based on their examinations and tests.

Nowhere in any the official reports is there a reference to an “ATF official position” that

the NFA prohibits “significant changes” to registered machineguns. If ever there was such an

“ATF official position,” as Mr. Sander claims, it was not known to anyone who might be affected

by it, including the very employees responsible for detecting violations; the twenty or so

Examiners in the National Firearms Act Branch who approve all applications to transfer

machineguns. Since 1993, defendant Clark had applied to transfer thirty-four (34) machineguns

that had been changed “significantly.” Each of the forms described “extreme” changes, and all

were approved.

Based on the foregoing discussion, a written “ATF policy” addressing changes to

registered machineguns is non-existent. Thus, the “ATF position” cited by Mr. Sander is without

any foundation. Even assuming that ATF’s internal position held that significantly changing

registered machineguns was prohibited, FFL’s (such as defendant Rodman) potentially affected

by it lacked access to this critical information. This is an egregious oversight, particularly since a

primary responsibility of NFA Examiners is to ensure that a machinegun being transferred is

registered in the national data base, the NFRTR.

Defendant Clark did not attempt to obscure his extreme modifications, because he

believed that such modifications were legal. Whatever Clark’s reasons, the sad irony here is that

Clark’s belief was objectively reasonable given no guidance from ATF and was passed on to

Rodman and others.

It is well settled law that a person can not be convicted of a crime in the absence of a

statute or regulation. “[A] penal statute [must] define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S.

352, 357, (1983). See United States v. Varbel, 780 F.2d 758. 762-63 (9th Cir. 1986)



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ARGUMENT

The right of the people to be secure in their persons, houses, papers and effects againstunreasonable searches and seizures, shall not be violated and no warrants shall issue, but uponprobable cause, supported by Oath or affirmation, and particularly describing the place to besearched and the person or things to be seized.

(Constitution of the United States; Amendment 4)

The arguments set forth below are devoted to those portions of the Affidavit that can be

applied to support a searh warrant for the Rodman residence and business. Indeed, the primary

requirement for a search is to succinctly document violations of a U.S. Statute and to rationally

articulate the specific evidence. Equally important, is for the application to particularity describe

reasons to believe that certain items are evidence, fruits, or instrumentalities of a suspected

crime. Finally, the warrant must give reasons for belief that the items to be seized are within the

place to be searched. With regard to the Rodman residence or business, the Sander Affidavit

fulfills none of the above requirements.

To describe the Affidavit as a “hard or complicated read” is an understatement. It is a

vague catch-all, with no theme and a murky context, with the end result being a disorganized

narrative that lacks a succinct legal basis. Rather than establishing a crime or crimes, the

Affidavit offers a choice of seventeen (17) violations of U.S. law. There is no factual

underpinning to establish a probability that any of the items to be seized are evidence, fruits, or

instrumentalities of any crime or that they would be found at the Rodman residence or business

The Affidavit supports only a tentative probability that defendant Clark (FFL/SOT) in Arizona

manufactured machineguns in violation of what is described as an “ATF Position,”; i.e., that a

licensed manufacturer who “significantly” modifies a registered machinegun creates a “new”

firearm in violation of 18 U.S.C. § 922(o) and the modified machinegun is contraband forever.

(Affidavit, para. 19) Even allowing that it is an “ATF Position,” it is not law and does not have

the force of law. It may, however, be a workable theory for belief that a crime had occurred for

probable cause purposes with regard to the person who modified the machinegun, defendant

Clark.



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Further, the Affidavit omits crucial facts about an “ATF Position”: 1) It is very doubtful

that ATF has ever adopted such a position. Even if this were the case, such a position would be

a substantial change, affecting a broad range of persons, and would have the force of law.

Moreover, there is no legal basis for ATF to adopt such a position without complying with the

most basic due process requirements of the Administrative Procedures Act (APA) before

attempting to prosecute offenders; and 2) as noted earlier, defendant Clark significantly modified

thirty-four (34) registered machineguns over a sixteen (16) year period and submitted separate

applications to transfer each of them. The applications accurately described significant changes

in caliber, barrel length and overall length. ATF approved each such application.

An ATF approval of an Application to transfer is made “under the authority of the United

States,” an exception to the § 922(o) prohibition. The absence of future transfer restrictions on

the form is an implied warranty by ATF that the machinegun is a pre-1986 transferrable

machinegun, lawfully registered to the transferee identified on the form from the transferor, also

identified on the form. ATF’s approval of an application also carries with it a warranty that the

transfer complied with the tax laws; either that the transfer taxes were paid or that the transfer

was tax exempt.

In actuality, no law nor regulation exists imposing any prohibition or restriction on

changes to registered machineguns. Whether ATF has authority to take such a position as Mr.

Sander claims, has never been adjudicated by any Court. The NFA does not specifically

authorize modifications to registered machineguns; on the other hand, it does not prohibit them.

Although agencies have discretion to fashion regulations to govern the statute, they are charged

with administering, the Administrative Procedures Act requires agencies to articulate a rationale

when they exceed their discretion, see 5 U.S.C. § 706.

Unfortunately, although ATF has been responsible for implementing § 922(o) for more

than twenty-six (26) years, it has not published a regulation regarding changes to a registered

machinegun. Moreover, ATF has not published any ruling, notice, interpretation, policy, or



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guidance of any sort, by whatever name, that deals with the topic of modifications to registered

machinegun and any variants. The fact that ATF ever adopted such a position without notice to

anyone defies belief. Even if such a position were formalized and adopted, unless the

information were disseminated more broadly, those whom it might potentially affect might well

remain uninformed, including the employees responsible for approving machinegun transfers.

As part of the approval process, a critical function of National Firearms Act Branch

Examiners is to compare the description of the machinegun in NFRTR with the description of the

same machinegun on the ATF form being processed. According to required ATF procedures if a

discrepancy is discovered equalling “more than 2 or 3 inches” in barrel length or overall length,

ATF is required to deny the application or returne it to the transferor for further explanation

(ATF National Firearms Act Branch Standard Operating Procedures Training Manual) (Bates

ROS 0016879 - ROS 0016914) Not one of defendant Clark’s applications was denied or

returned for explanation, although most forms showed changes from handgun ammunition to

rifle ammunition and more than a 2 to 3 foot change in both barrel and overall lengths –

modifications that could not have been overlooked. At the same time, it is well settled law in the

Ninth Circuit that a person can not be convicted of a crime in the absence of a statute or

regulation. See United States v. Varbel, 780 F. 2d 758 (9 Cir. 1986).th

Narratives in the body of the Affidavit contain technically true statements which, when

combined with erroneous law, omissions and the lack of context, had the effect of misleading the

Maryland Magistrate Judge, causing him to improvidently issue the two warrants. Instead of

providing any facts to support a probability that the “things” to be seized would be located within

the buildings to be searched, the Affidavit incorporates a 4-page “wish list” of 34 categories of

“things” to be seized (EXHIBIT A - Items to be seized). Consequently the warrants were issued

on an application that was so lacking in facts as to render official belief in its existence

unreasonable. In fact, the Affidavit - as application - is so bereft of probable cause that the

officer submitting it or executing it “cannot excuse his own default by pointing to the greater



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incompetence of the magistrate. Malley v. Briggs, 475 U.S. 335, 344-45 (1986), citing United

States v. Leon, 468 U.S. 897, 923 (1984)

Buyer-seller transactions do not constitute a conspiracy. The only nexus between tentative

violations of § 922(o) in Arizona and the Rodman properties in Maryland is that a person

licensed to buy and sell machineguns. The Affidavit points out that defendant Rodman, did in

fact, buy thirteen (13) machineguns from defendant Clark. Both parties were in business to buy

and sell machineguns for profit and were licensed to do so by ATF. The Affidavit pointedly

failed to disclose that the most recent sale took place approximately four (4) or five (5) years

before the Affidavit was prepared. Although the applications to transfer were all approved,

Rodman received only twelve (12) of the machineguns that he purchased. He possessed them for

varying periods and sold seven (7) of them which he transferred on ATF approved forms. He

voluntarily abandoned five (5) to ATF. Each machinegun received by Rodman was the

completion of a sales agreement with defendant Clark as seller and defendant Rodman as buyer.

All payments were made on or about the time of sale.

Each machinegun defendant Rodman received from defendant Clark included an

approved ATF registration certificate describing the machinegun and warranting 1) that it had

been lawfully manufactured, 2) that it was transferred under the authority of the United States, 3)

that it was registered to Rodman in the NFRTR, and 4) that it was eligible to be transferred. The

acquisition and disposition of each machinegun was entered into Rodman’s required records.

Those that defendant Rodman sold were transferred to persons qualified to possess them, and

ATF approved the Application forms with the same warranties. There is no evidence or

information in the Affidavit to establish that the sales resulted from any agreement beyond the

normal buyer-seller relationship. Another substantial omission related to the Affidavit is the

crucial fact that when preparing the Affidavit, Mr. Sander knew the exact locations of all thirty-

four (34) machineguns manufactured by defendant Clark. Mr. Sander knew with certainty that

not one was possessed by Rodman on August 19, 2008. Certainly, no machineguns



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manufactured by Clark could be found within defendant Rodman’s home or business, and Mr.

Sander never provided a reason why any item on the list of items to be seized would be, or could

be, evidence; fruits; or instrumentalities of crime.

Perhaps the most damaging information against Rodman is hearsay from a confidential

informant which led Mr. Sander to conclude the following:

1. “That Rodman was quite possibly involved in a conspiracy with Clark”;

2. “That unidentified “other” FFLs in Maryland, including Goldstein, might be involved

with the conspiracy as well;”

3. “The scheme of the conspiracy was to make slight adjustments to the ATF National

Firearms Act transfer paperwork (Forms 3 and 4) ... making sure a machinegun was

transferred several times in order not to raise major red flags with the ATF National

Firearms Act Branch ...” (Affidavit, para 38)

Mr. Sander does not illuminate the informant’s prior reliability, and there is nothing to

indicate that he made any effort to corroborate the informant’s statements. Sander attests that the

informant had personal knowledge of the topics discussed – a statement that is highly unlikely.

Mr. Sander omits the fact that the informant was then under ATF investigation for receiving,

possessing and transferring unlawfully manufactured machineguns. Concerning the scheme to

make slight adjustments to the Clark-modified machineguns, the Affidavit does not provide a

single example of such manipulation, and statements to the contrary were meant to deceive the

Magistrate Judge. To believe such a fantasy also demonstrates vast unfamiliarity with the

regulations and processes of the National Firearms Act Branch. Documentation for each of the

thirty-four (34) machineguns transferred by Clark over 16 years thoroughly and accurately

described the changes, and there is no instance of even slight adjustments in the description of

any machinegun in this case. Such a notion is shameless and readily contradicted by a cursory

review of the registration histories provided in discovery. Mr. Sander embellishes the

information with his own statements, based on “numerous interviews with individuals,” as



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follows:

1. “Both Goldstein and Rodman transferred one of these Model 1919-type machineguns(referring to Clark modified machineguns) to non-FFLs; and in doing so, violated thefederal criminal code.”

2. Clark, Rodman and Goldstein collaborated to deceive the ATF National Firearms ActBranch by making slight and subtle changes to ATF Forms 3 or 4. In order not to raise redflags, these modifications to the machinegun descriptions were made slowly and subtly toeffect changes in the description of the machineguns. (Affidavit, paras. 40, 41)

Mr. Sander further embellishes the information believed to have been received at the

same time from the same confidential informant described in paragraph 38:

1. “Rodman admittedly knew (sic.) exactly what Clark was doing;”

2. “Rodman and Goldstein conspired with Clark for years by defrauding innocentindividuals into believing that they were purchasing legal machineguns;”

3. “Goldstein assisted Rodman and Clark in this conspiracy [so that they all could maximize profits and minimize the risk] that the machineguns would be discovered asillegal contraband;”

4. “Sander believes that all of these individuals [Goldstein, Rodman and Clark] conspired together to increase profits, defraud the government and deceive innocentindividuals and that all ... have falsified information on ATF Transfer Forms 3 and 4 inorder to keep their fraud scheme prosperous.” (Affidavit, para 66)

Other examples of false statements by Mr. Sander appear in paragraphs 27 and 45, where

he purports to summarize the registration history of machineguns numbers 820101541,

A6042075, A6041867 and A6042028. Mr. Sander avers that A6042028, was manufactured as a

receiver and was transferred a few times before being transferred to Clark as a receiver. Mr.

Sander falsely avers that the other three machine guns were manufactured as such, transferred

several times without changes before being transferred to Clark as machineguns. These false

statements are material misrepresentations intended to mislead the reader to concluding that no

modifications were made in the machineguns before they were transferred to Clark.

DISTRICT OF MARYLAND SEARCH WARRANTS 08-2630-JKB AND 08-2631-JKB

Based on a single Affidavit prepared by Special Agent Patrick Sander, on August 19,

2008, James K. Bredar, United States Magistrate Judge, U.S. District Court, District of Maryland

issued search warrants for six separate, non-adjacent properties within the State of Maryland



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based on a single affidavit prepared by ATF Special Agent Patrick Sander. At the time, one

property, 4907 Lisborough Terrace, Bowie, MD 20720, was the residence of defendant Randolph

Rodman and his wife, Gail Rodman. Another property, 910 Philadelphia Avenue, Silver Spring,

MD 20910, was the location of R & S Arms, a firearms business operated by defendant Rodman

for almost twenty (20) years.

Concurrent with the issuance of the warrant, the Magistrate Judge sealed it and all

attachments. Although the warrant contains no language incorporating the Affidavit, the

Affidavit states that its Attachment B (List of Items to be Seized) is incorporated by reference.

That being the case, it is reasonable to conclude that none of the officers executing the warrant

were not equipped with either the Affidavit or a list of items to be seized.

EXECUTION OF Search Warrant 08-2630-JKB: THE RODMAN RESIDENCE

The search of the Rodman home began at approximately 7:30 a.m. on the morning of

August 21, 2008, when several officers arrived, rang the door bell, and were allowed to enter by

Gail Rodman, wife of defendant Rodman. Although the officers made a general introduction,

they did not disclose they had a warrant to search, nor did they provide a copy of the Affidavit or

Attachment B which listed items to be seized. Once inside the residence, the officers asked

about the location within the home of specific items; e.g., financial records, files, and firearms.

These officers were soon joined by others; and throughout the day additional personnel filtered

into and out of the home.

Later that afternoon, while the search was still underway, Mrs. Rodman observed that a

medium sized moving van had arrived in front of her home. The search continued throughout

the day before officers began loading property into the van. It was only before departing at about

8:00 p.m. that they provided Mrs. Rodman with a copy of the face sheet of the search warrant and

a copy of the inventory of property taken. (The inventory was a totally illegible copy.) Officers

did not provide Mrs. Rodman with copies of either the Affidavit or Attachment B.

Property seized during the search consisted of twenty (20) firearms, ten (10) banker’s



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boxes of the Rodman’s personal documents; e.g., financial, banking, and insurance statements

and bills; children’s personal records; architectural drawings for the Rodman’s new home; family

photographs, two (2) cell phones and one (1) laptop computer. (The cell phones, the laptop

computer and some of the children’s records were returned later.)

EXECUTION OF Search Warrant 08-2631-JKB: THE RODMAN BUSINESS

Search Warrant 08-2631-JKB describes the search location as a two-story building on a

large open lot surrounded by a chain link fence. (The property, owned by Rodman, was located

in a densely populated urban area.) The building housed two separate businesses – a patently

obvious fact that neither the warrant, its Attachments nor the Affidavit disclose. “The Auto

Shoppe” is the primary occupant of the building and occupies the entire first floor with working

bays, storage space and a small office. There is a large fenced in lot used to store vehicles

brought to the business for repair and subsequent pick-up. There are prominent signs to identify

this Mercedes repair business. For security reasons, there is nothing observable about the

property to indicate that a firearms business is also located within the building.

The second business on the property, “R & S Arms,” occupies the entire second floor of

the building. Its configuration consists of a large open office, space for records storage and a

large walk-in vault for securing a large inventory of firearms and firearms awaiting transfer,

repair, or pick up. Although this business and the area it occupies should have been the object of

the search warrant, the Affidavit fails to even mention the existence of another business within

the building. Thus, the warrant authorized a search of the entire building and seizure everything

described in Affidavit Attachment B.

Among the items seized were three (3) computers, six (6) large industrial machines (a

lathe, a mill/drill machine, a drill press, a belt sanding machine and two (2) engraving machines),

all of which necessitated removal by fork lift and approximately thirty to forty (30 to 40) boxes,

of the total of fifty-five (55) seized at the property. Confiscated boxes contained such papers as

records, titles, correspondence, etc., all easily recognizable as auto repair business property. (The



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computers were later returned after having been fully scrubbed by ATF.)

As noted earlier, execution of the warrant to search the business property began on the

morning of August 21, 2008, with the arrival of ATF Special Agents. Throughout the day there

was a steady stream of agents, police officers, and other miscellaneous government employees,

most of whom were not authorized to perform law enforcement duties such as executing search

warrants or seizing evidence. Later that same day, a large tractor trailer arrived, with the search

continuing until early evening, at which time officers began loading business property into the

trailer. At the conclusion of the search, defendant Rodman was provided with a copy of the

search warrant and an extremely general inventory of the property taken. Defendant Rodman

was present when the ATF arrived. He was searched and Agents seized $5,347.00 in U.S. bills

from his person. That amount, combined with $30,977 in bills seized from the firearms vault

resulted in a total seizure of $36,324.00 in U.S. currency. The currency taken from the firearms8

vault was in an envelope that also contained receipts and other notes relating to the money.

Although, the currency was returned, the receipts in the envelope were lost by ATF and have

never been returned. In addition, although ATF agents specifically informed defendant Rodman

that he was not under arrest before being taken to the building’s second floor, he was placed in a

room under an armed ATF guard for the remainder of the day. Several times during the day,

defendant Rodman was permitted to use the bathroom, each time he was escorted by an ATF

armed guard.

In addition to the earliier enumeration of property taken, ATF agents seized twenty-six

(26) machineguns, two (2) firearms parts kits, an upper receiver and registration papers for all

NFA firearms. Although registration papers were elsewhere on the premises, in a white 3-inch

loose leaf binder, their location did not deter ATF from taking them.

FORFEITURES

In a letter to defendant Rodman, dated September 29, 2008, ATF initiated Administrative

The currency was returned but not without considerable legal argument.8



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Forfeiture proceedings against forty-six (46) National Firearms Act “firearms,” and six (6) pieces

of industrial machinery, taken when executing the two search warrants (28 were seized from the

business and 18 from the residence). The ATF letter alleges that the seized items were “used or

acquired in violation of 26 U.S.C. 5872.” Defendant Rodman filed a timely claim, demanded a

judicial forfeiture and posted a $5,000.00 cost bond with ATF. As noted earlier, the six (6) items

of industrial machinery included a lathe, a mill/drill machine, a drill press, a belt sanding

machine and 2 engraving machines.

With specific regard to the industrial machinery, the government’s reliance on 26 U.S.C.

5872 as authority for forfeiture of the machinery is misplaced. Title 26 of the U.S. Code, § 5872

states that (a) “any firearm involved in any violation of this chapter shall be subject to seizure

and forfeiture” and (b) “all provisions of the Internal Revenue Code are extended and apply to

articles taxed under this chapter.” (Emphasis added) Obviously, the machines are not

“firearms” and are not “taxed articles.” Moreover, the government lacked authority to seize the

machinery and retain it for either evidence (the Affidavit contains no evidence or information

that the industrial machines were evidence, fruits of instrumentalities of any crime, nor did the

Affidavit authorize the seizure). In any event, machinery cannot be forfeited under the statute

cited. Counsel made a written request to ATF; however, the agency refused without citing any

points or authority supporting its position.

Also under Search Warrant 08-2631JKB, ATF seized from the business portion of R&S

Arms the following papers and documents (originals or copies have been returned or provided):

< four (4) boxes of miscellaneous ATF paperwork, one of which contained six (6)Acquisition and Disposition (A & D) books, plus one repair A & D book. (Theremaining boxes were described with no more specificity than “miscellaneousATF paperwork”);

< one (1) bag containing the Federal Firearms License (8-52-031-07-OL-36956) andcurrent Special Occupational Tax Return (52-1792125) to engage in the business



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of dealing in “firearms” other than “destructive devices” as defined in theNational Firearms Act (NFA) 26 U.S.C. 5845 .9

<During the search of defendant Rodman’s firearms business, ATF examined

approximately 100 or so registered NFA firearms and did not seize them. Most were within the

R & S Arms vault at the licensed premises. Obviously, the 100 or so machineguns were not

seized because ATF confirmed during the search that they were lawfully registered to defendant

Rodman/R & S Arms and in possession of the registrant as required by law, and entered in

Rodman’s required records.

Presumably, the searchers verified the registered status of each machinegun by viewing

the registration papers at the premises. In addition, agents seized all registration certificates; and,

despite numerous requests, never returned them. Many requests for copies were denied. ATF’s

seizures of the only proof of registration for lawfully possessed NFA machineguns (without

taking custody of the machineguns and without leaving a receipt) is totally mindless. These

papers are the only means available for defendant Rodman to establish that the firearms in his

possession are registered and lawful. Thus, the consequence of ATF’s seizure of the registration

papers, while not seizing one hundred (100) or so machineguns, places defendant Rodman in

continuing violation of 26 U.S.C. 5841(e), which requires a person possessing a firearm

registered by this section to retain proof of registration at all times. Failure to comply with any

provision of Chapter 53 makes the person possessing these firearms vulnerable to imprisonment

for up to ten (10) years on federal violations and is also vulnerable to State of Maryland charges..

The seizures under Search Warrant 08-2631 JKB from defendant Rodman’s Mercedes-

Benz auto repair business (the Auto Shoppe), included the following papers and documents:

The term “firearm” as defined in the NFA bears no semblance to the common meaning9

of the term. Generally speaking, except for including easily concealable items that fire aprojectile, such as sawed-off shotguns and rifles all categories of ordinary rifles, pistols andshotguns are excluded from its meaning. Included within the NFA’s definition are artillerypieces, mines, bombs, grenades, rockets and destructive devices.



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- one (1) pallet containing twenty-eight (28) boxes described with no morespecificity than “miscellaneous documents”;

- one (1) pallet containing twenty-two (22) boxes described with no morespecificity than “miscellaneous documents.”

ATF returned ten (10) of the fifty (50) boxes of papers, records and documents seized

from the auto repair business. Remaining in government custody are all manner of archived

records; i.e., financial, banking, insurance, bills, receipts, accounts receivable, accounts payable,

vehicle titles, and commercial legal proceedings. Of particular note, Mr. Rodman filed a Motion

for Return of Property in the District of Maryland, and the Government was ordered to review

property seized within one year of its seizure and return all that lacked evidentiary value. As of

this date, nothing has been returned in response to the Order.

WARRANTS SHOULD BE DECLARED INVALID

In summary, both warrants to search the Rodman residence and business are invalid. The

Affidavit underlying the search and seizure relies on an interpretation of law

based on supposition, speculation and conjecture and lacks any evidence or information to

support probable cause for the issuance of the two search warrants (not to mention the other four

search warrants). Further, when Attachment B is applied (as noted earlier, the Affidavit

incorporates Attachment B by reference), the warrants became general warrants to rummage

through the Rodman properties at will and seize anything and everything. There are no

discernible limits to what could be seized as authorized by Attachment B; the officers serving the

warrant took full advantage of that mandate.

The warrants to search defendant Rodman’s home and business reflect adversely on the

ethics and professional responsibility of those involved in the review and approval processes

within our Criminal Justice system. The abject failure of the Affidavit to support probable cause

and particularly to describe specific items to be seized should not be a closed issue. The

Affidavit was prepared by a Special Agent with sixteen (16) years of federal law enforcement

experience; it was reviewed and approved at all levels of ATF’s supervisory and management in



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Phoenix and by attorneys from the ATF Office of Chief Counsel before being referred to federal

prosecutors. The Affidavit was then reviewed in the Phoenix Office of the United States

Attorney (OUSA), reviewed, approved and referred to AUSA Jason Weinstein, then the Chief

AUSA for Violent Crimes in the District of Maryland (Mr. Weinstein has since been appointed

to his current position as Deputy Assistant Attorney General of the Criminal Division of the U.S.

Department of Justice.) One has to ask if this detailed review procedure ensured anything other

than that rubber stamps were well inked.

With specific regard to defendant Rodman’s case, the practice of using a single Affidavit

to establish probable cause for six non-adjacent, remote properties is most unusual. Doing so,

achieves no efficiency, serves no purpose and is unnecessary disfavored by most USAOs.

Further, although the use of such an Affidavit is not proscribed by courts, per se, its very nature

requires extreme and thoughtful scrutiny. Such an affidavit transforms a simple, straightforward

probable cause review into an endless nightmare, and evokes over-reaching, bias, and prejudice,

in the end polluting the review process of an otherwise neutral and detached magistrate. The

practice should be condemned or severely limited to extreme unforeseen circumstances.

Beyond the general use of a single Affidavit, the Affidavit here contains many pages of

narrative without a plan. For example, paragraphs drift along aimlessly. Very little of the

content relates specifically to the Rodman properties. Scattered throughout are deliberate

misrepresentations, intentionally misleading comments and gratuitous ad hominem comments.

Viewed in its totality, the Rodman Affidavit hints at – but does not identify – tentative

firearms violations, violations that one might be connected with either the Rodman home or

business, or with some other property. Seriously lacking is specific evidence to unde-gird the

showing of probable cause. Similarly, the Affidavit presents no facts to establish a nexus

between items subject to seizure and their physical location. Mr. Sander’s narrative co-mingles

multiple persons with multiple locations. Searches often disappear into a fog, a fog within which

agents, machineguns, boxes, trucks and vans come and go. At a practical level, analyzing the text



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of the Affidavit becomes extremely complicated when trying to determine the applicability of the

“good faith” exception to the exclusionary rule for an invalid search warrant. Certainly, courts

will ask not what the executing officer believed, or could have believed, but instead, whether a

reasonably well trained officer would have known that the search was illegal, irrespective of the

magistrate’s authorization. The only answer is that every well trained officer, federal, state,

county, and muncipal would have known that the search was illegal and the seizures were illegal.

United States v. Leon,468 U.S. 897, 919-922 (1984), United States v. Clark, 31 F. 3 881, 835rd

(9 Cir. 1994), United States v. Luong, 470 F. 3 898, 902, 903 (9 Cir. 2006) th rd th

AFFIDAVIT SECTION: “PERMISSION TO SEIZE COMPUTER SYSTEMS ANDPERIPHERALS:” AND AFFIDAVIT SECTION: “PROCEDURE FOR SEARCHINGCOMPUTER EVIDENCE:”

Two sections of the Affidavit, Permissions to Seize Computer Systems and Peripherals

and Procedure for Searching Computer Evidence provide minimal facts; and instead, fill seven

pages with pure drivel. Neither section presents information relevant to the issuance of a legally

adequate search warrant. The first section describes the general capabilities of computers and

their uses to store vast amounts of information. It appears that this information was copied from

someone’s lesson to instruct on the wonders of electronic data. There is no basis for anyone to

understand why Mr. Sander thought this would be of interest to anyone reviewing the Affidavit

for probable cause purposes. The second section describes the remarkable thoroughness of law

enforcement agencies when searching computers for the presence of evidence. This information

could easily have been taken from a basic textbook in a Criminal Justice course at some

community college or technical high school. The seven pages devoted to these two topics shed

no light whatever on the real-world requirements for issuing a warrant to search; e.g., searching

the premises to determine whether there were computers at the Rodman properties; and if so,

whether they were used to store evidence of criminal conduct. Mr. Sander again fails to provide

any explanation for the presence of this worthless and wasteful static.



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AFFIDAVIT SECTION: “CONCLUSION”

Mr. Sander’s concluding section is comprised of 7 more pages of non-specific, boilerplate

language and meaningless platitudes described as “findings.” Typical of these findings are such

trite clauses as:

- that individuals who purchase or possess firearms tend to keep firearms in theirresidences for long periods of time;

- that they tend to keep parts/kits in their residences and businesses for long periodsof time as well;

- that they tend to store records detailing acquisition and dispositions of thesefirearms in the form of receipts, ledgers, pay and owe sheets and handwrittennotes inside of their residence and business;

- that they tend to keep records of sales/transactions on their computer hard drives,flash drives, or other databases which are found in their residence and business;(Omits to disclose that all records of defendant Rodman’s firearms sales,transactions, acquisitions, repairs, transfers and dispositions were kept inhandwritten form, a fact which Mr. Sander knew);

- that they often store firearms and firearms parts kits in the residences of relativesin order to avoid detection by law enforcement;

- that they will frequently realize that law enforcement is looking to obtain evidenceagainst them to make inquiries about such evidence, so these individuals will inturn hide or move their firearms to a place of safekeeping which could be aresidence of a relative, especially one who lives in close proximity to the targetindividual; and,

- that they will, on many occasions, use several different addresses for businessesand residences alike, in order to keep maintain property or personal belongings indifferent locations and not all in one place making it more difficult to detect bylaw enforcement.

Mr. Sander closes by submitting that there is probable cause to believe that the items

described in Rodman Affidavit Attachment B will be found on the Rodman premises and [that

they are] evidence, fruits and instrumentalities inter alia the aforementioned violations. Quite

honestly, the issues addressed in Affidavit section are hardly the “burning issues” of search and

seizure law.



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PROBABLE CAUSE AND PARTICULARITY:

It is well settled that the issuance of a warrant to search requires evidence or credible

information, under Oath or affirmation, which would “warrant a man of reasonable caution in

the belief” that a felony has been committed and must be weighed by the facts of the particular

case. Wong Sun v. United States, 371 U.S. 471 (1963). The searches of the Rodman residence

and business were not reasonable because they were not justified by probable cause; the warrants

were issued improvidently and were invalid. (1) the affidavit/application for the issuance of a

search warrant so significantly lacked indicia of probable cause that belief in its existence was

entirely unreasonable. Leon, Ibid at 923, quoting Brown v. Illinois, 422 U.S. 590, 610-11(1975);

and, (2) the warrant was unreasonably broad and lacked specificity. See, United States v.

Cardwell, 680 F. 2 75, 77-78 (9 Cir. 1982) (search warrant was not sufficiently particularnd th

because it contained no guidelines to aid officers in determining what may or may not constitute

evidence of a violation of the statute.)

The affidavit supporting the warrant for the Rodman residence merely listed 17 U.S.

crimes against the United States without demonstrating any facts or circumstances supporting a

theory that defendant Rodman violated any of them or that any evidence, fruits or

instrumentalities existed, or that such evidence would be found within the properties to be

searched. Moreover, the Affidavit does not identify anyone, excepting defendant Clark, who

may have violated any U.S. law. That matter was still under investigation without a law or

regulation prohibiting Clark’s changes to registered receivers. Mr. Sander believes and avers that

there is an “ATF Official Position,” to the effect “that a significant change to a registered

machinegun constitutes manufacture of a new machinegun.” However, there is no credible

information to support such a belief. There is no law or regulation prohibiting changes, ATF has

not published anything resembling that position and there is no evidence of internal ATF

guidance regarding changes in the twenty-five (25) years of ATF experience implementing §

922(o).



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The term “manufacture” is undefined in statute and regulation, and ATF has not

published any ruling, information notice, legal interpretation, or guidance on the subject. For

probable cause purposes, in listing 17 criminal offenses, Mr. Sander does not delineate which

statute, if any, was violated by which person and which property (within the four single spaced

pages in Attachment B) is present at which of the six locations A copy of the warrants’

Attachment B is appended to this filing as EXHIBIT 1.

Further, whether modifications of a registered machinegun constitutes the manufacture of

a new machinegun is not a settled question of law. Mr. Sander’s simplistic solution in Paragraph

19 is entirely without merit. When applying for the search warrant and at all times during the

ATF criminal investigation, this was the ultimate issue. related to the investigation: these are

similarities between a criminal violation of 18 U.S.C. 922(o) and lawful conduct by an FFL/SOT

engaging in the business of manufacturing and dealing in machineguns.

Mr. Sander omitted critical information concerning defendant Rodman’s possession of

machineguns purchased from Clark. When preparing the Affidavit, Mr. Sander had actual

knowledge that defendant Rodman no longer possessed any of the machineguns transferred to

him from defendant Clark. That fact was omitted. Mr. Sander knew from review of the NFRTR

registration records that Rodman had received 12 machineguns from Clark. All of them were

accounted for and none were in the possession of Rodman. He sold seven and transferred them

under ATF approved forms. Each of machinegun thus transferred to third parties was in ATF’s

custody or would soon be, since their exact whereabouts and registered owners were known to

ATF. The remaining 5 machineguns received by Rodman were voluntarily abandoned to ATF

Special Agents on May 2, 2008, and were in the custody of ATF. The machinegun that was

never shipped by defendant Clark, 820101541, was already in the custody of ATF. It had been

seized by at Clark’s business on March 20, 2008. These critical facts were omitted from the

Affidavit.

In United States v. Crozier, 777 F. 2 1376, 1381 (9 Cir. 1985) a warrant that authorizednd th



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seizure of “evidence of a violation of 21 U.S.C. 841, 846" was held to be overbroad. This

Affidavit suffers from the other extreme, listing 17 statutory offenses and six separate locations

under the control of at least 5 listed persons. Other than the cavalier statement that he knows that

they are crimes, Mr. Sander says no more about them, never alleging or even speculating that

any listed statutes were violated. The reader is left to sort the inter-relationships between

persons, property, lawful conduct, criminal activity and classify which crime may have been

violated and the relationship of the crime to each of six separate locations.

THE WARRANTS ARE INVALID DESPITE THE MAGISTRATE JUDGE’SAUTHORIZATION BECAUSE THEIR ISSUANCE WAS OBJECTIVELYUNREASONABLE

In United States v. Leon, 468 U.S. 897, 914 (1984), the Supreme Court recognized that

“reasonable minds frequently may differ on the question whether a particular affidavit establishes

probable cause” for a warrant, and that “inadequate probable cause does not necessarily render an

officer’s reliance unreasonable because the existence of probable cause is often a difficult

determination.” Ortiz v. Van Auken, 887 F. 2 1366, 1370-71 (9 Cir. 1989). When reasonablend th

minds differ as to the existence of probable cause, approval of a warrant by a government

attorney and ratification by a neutral and detached magistrate usually establishes objectively

reasonable reliance. Id., at 1369-70. Courts treat magistrates as more qualified than police

officers to make determinations of probable cause. See, e.g. [United States v. Malley, 475 U.S.

at 346 n.9.

Officers lose their “shield of qualified immunity “... where the warrant application is so

lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Id.

at 344-45 (citing Leon at 923. Thus, evidence obtained under an invalid warrant should be

suppressed if the officers obtaining the warrant and performing the search did not rely on the

warrant’s validity. Id. at 922 n.23 ( 1984); See also, United States v. Mendonsa, 989 F. 2 366,nd

369 (9 Cir. 1993). It is the objective reasonableness of a well-trained officer that must beth

weighed in deciding whether this particular search was illegal and that test is applied not only to



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the officers who executed the warrant, but also to the officer who provided the affidavit upon

which the warrant was based. When a warrant is so bereft of probable cause that official reliance

is unreasonable, such as here, the officer executing the warrant “cannot excuse his own default

by pointing to the greater incompetence of the magistrate.” Leon, id. at 346 n. 9.

AFFIANT VIOLATED THE CONFIDENTIALITY REQUIREMENTS OF 26 U.S.C. §6103(h) IN WRONGFULLY DISCLOSING TAX RETURN INFORMATION

26 U.S.C. § 6103(a) (1) provides that tax returns and tax return information shall be

confidential ...; and that no officer or employee of the United States, “Shall disclose any return or

return information obtained by him in any manner in connection with his service as such an

officer or an employee or otherwise under the provisions of this section; Subsection (b) defines

certain terms: (1) RETURN means any tax or information return, ... which is filed with the

Secretary (of the Treasury) by or on behalf of any person ...; and (2) RETURN INFORMATION

means any other data ... received by the Secretary with respect to a return ...; and TAXPAYER

RETURN INFORMATION means return information as defined in paragraph (2) which is filed

with or furnished to the Secretary by or on behalf of the taxpayer to whom such return

information relates.

Thus, 26 U.S.C. § 6103(b) defines “tax administration” as “the administration,

management, conduct, direction and supervision of the execution and application of the Internal

Revenue laws... The search warrants for defendant Rodman’s residence was not a tax

administration matter but rather a criminal one, even though tax returns and tax information are

within the Affidavit.

The Affidavit was signed in the presence of a U.S. Magistrate Judge on August 19, 2008,

almost two years before the grand jury returned a true bill in CR-10-1047 ROS. Thus, the

government failed to follow the dictates of § 6103(i) which sets forth detailed procedures for the

disclosure of returns and return information in non-tax administration prosecutions. The

procedures require a Court Order to the Secretary of the Treasury to disclose the records to non-

Treasury employees prior to any disclosures taking place. If the government has complied with



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the mandates of § 6103, it has not been disclosed to defendants.

Given the plethora of justifications delineated above, Defendant Rodman, requests the

Court to quash the warrants for Rodman’s business and residence and suppress the use as

evidence at trial of all property and its derivatives and the use of all evidence derived from leads

obtained in violation of the § 6103(a) of the Tax Code.

CONCLUSION

Also for the reasons above, and for others which may be known to the Court, Defendant

Rodman requests an Order quashing the warrant, vacating the Administrative Forfeiture

Proceedings pending against 17 firearms and suppressing as evidence at trial and leads to seized

under the warrant. Defendant also requests the return of all property seized in executing the

defective search warrants. Further, Defendant requests a Franks hearing on the Affidavit and

also a Kastigar hearing, if necessary, to determine if the government has an untainted source for

the evidence it intends to use in the prosecution of CR-10-1047 ROS. See Kastigar v. United

States, 406 U.S. 441 (1972).

Respectfully submitted,

Dated this 14 day of September, 2012 s/Robert E. Sanders th

Robert E. SandersCounsel for Randolph B. RodmanPro hac vice109 Candlewyck DriveWinston-Salem, NC 27104Phone: 336.659.2999Cell: 336.671.0072Email: [email protected]




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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 14, 2012, I electronically transmitted the

attached document to the Clerk’s Office Using the ECF System for filing and transmittal of a

“Notice of Electronic Filing” to the following ECF registrants:

Kathy Jo Lemke [email protected] A. Bartolomei [email protected] C. Tate [email protected] R. Conte [email protected] J. Smith [email protected] Foreman [email protected] R. Petti [email protected]

/s/ Robert E. Sanders Robert E. SandersCounsel for Randolph Rodman109 Candlewood DriveWinston-Salem, NC 27104Phone: 336.659.2999Fax: 336.765.9950E-mail: [email protected]










Documents

Motion to Suppress Evidence