#354 motion in limine to public authority

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JOHN S. LEONARDOUnited States AttorneyDistrict of Arizona

KATHY J. LEMKEAssistant U.S. AttorneyTwo Renaissance Square40 N. Central Avenue, Suite 1200Phoenix, Arizona 85004-4408 Arizona State Bar No. 018468Telephone (602) 514-7500email: [email protected]

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America

Plaintiff,v.

2. Randolph Benjamin Rodman, and

6. Idan C. Greenberg,

Defendants.

CR-10-01047-PHX-ROS

MOTION IN LIMINE TOPRECLUDE PUBLIC AUTHORITY

DEFENSE

The United States, by and through undersigned counsel, moves in limine to preclude

Randolph Benjamin Rodman and Idan C. Greenberg, the defendants, from presenting a defense

claim of public authority or equitable estoppel to the jury.

The defendants neither sought nor received the approval of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) National Firearms Act (NFA) Branch when they

removed the serial number from a registered machine gun that they then had welded onto a

completely different model of an unregistered machine gun that they recently had manufactured.

When the defendants submitted their transfer paperwork to ATF’s NFA Branch, the defendants

failed to file the necessary manufacture registration paperwork and concealed relevant facts on

their transfer applications thereby making their reliance upon the approved transfer paperwork

unreasonable.

Case 2:10-cr-01047-ROS Document 354 Filed 09/28/12 of 11

mailto:[email protected]

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The United States’ position is further supported by the attached Memorandum of Points

and Authorities.

Respectfully submitted this 28th day of September, 2012.


s/ Kathy J. Lemke KATHY J. LEMKEAssistant United States Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS

Between September 22, 1993 through April 8, 2009, the defendants, Randolph Benjamin

Rodman (Rodman) and Idan C. Greenberg (Greenberg), along with co-defendants, George Dibril

Clark, III (Clark); Hal Paul Goldstein (Goldstein); James Patrick Arnberger (Arnberger); and

Lorren Marc Kalish (Kalish) conspired with each other to defraud the United States in its

regulation of machine guns. As part of the conspiracy, the defendants’ manufactured 341/

machine guns after May 19, 1986, yet possessed and transferred, amongst themselves and private

individuals, as though the 34 machine guns were manufactured and registered prior to the

machine gun ban of May 19, 1986. 2/

In furtherance of the conspiracy and to circumvent the United States’ machine gun

regulations, the defendants took several steps to conceal detection. The defendants would use

an inexpensive and less desirable model of a machine gun (such as a MAC type machine gun)

that was registered in the National Firearms Registration and Transfer Record (NFRTR) prior

to May 19, 1986, that was transferred to Clark. In the transfer paperwork to Clark, a “barrel

length,” “overall length,” or “caliber size” were often not listed giving the impression that the

firearm being transferred was a “receiver only.” Clark told the other defendants to have the3/

firearm transferred to him with “N/A” listed in the categories for barrel length, overall length,

and caliber size but to keep the model listed on the original registration.

When Clark received the machine gun, he would cut-off and remove the serial number

that was engraved on the lower receiver thereby destroying the original registered machine gun.

Although focusing on Count 1: Conspiracy, the government’s argument holds true for1/

all counts charged in the Indictment.

In addition to the 34 machine guns listed in Count 1 of the Indictment, Defendant2/

Greenberg possessed a machine gun with serial number SAP453187 that is the subject of Counts74, 81, and 89 of the Indictment. This machine gun was originally registered as a MAC stylemachine gun. With the help of co-defendants Arnberger and Kalish the serial number wasengraved on an unregistered Maxim style machine gun they had manufactured and thentransferred to Greenberg’s possession using a similar scheme first employed by Clark.

To transfer a machine gun registered in the NFRTR, an ATF Form 3-Application for3/

Tax-Exempt Transfer or an ATF Form 4-Application for a Tax Pad Transfer must be filed withthe NFA Branch of ATF.

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Clark would then take the scrap of metal–approximately 1-inch by 2-inches–that had the serial

number and other markings engraved on it and weld the piece of metal into a larger, more

expensive, and sought-after model of machine guns that he recently manufactured. Clark often

manufactured the new and different model of machine guns from parts-kits provided by the other

defendants. Clark told the other defendants that he was cutting off the serial number from the

inexpensive, registered machine gun and welding it into a completely different model of machine

gun that they sought to possess.

After Clark completed his manufacturing of the new model of machine gun, he did not

file an ATF Form 2-Notice of Firearms Manufactured or Imported. He did not mark the machine

gun “dealer only” or that he was the manufacturer. Instead, Clark transferred the machine gun

to the other defendants listing the “barrel length,” “overall length,” and “caliber size” of the

newly manufactured machine gun but still using the serial number, manufacturer, and model type

of the original registered machine gun that he had destroyed in the process. Realizing that it was

wrong and it would help delay detection, Clark insisted to his co-defendants that the model

designation on the transfer paperwork could not be changed to reflect the newly manufactured

machine gun.

The defendants then transferred the newly manufactured machine gun amongst

themselves and private individuals by continuing to fill out the transfer paperwork while falsely

utilizing the serial number, manufacturer, and model type from the registered machine gun that

they destroyed. The defendants did not disclose on the transfer paperwork that Clark was the

manufacturer of the machine gun nor that the machine gun they manufactured was a different

model of machine gun.

Every time the defendants filled out the transfer paperwork for the machine guns, they

signed and declared that under the penalties perjury that they examined the application and to

the best of their knowledge and belief, “it is true, correct and complete.” However, they never

noted the model change or included Clark as the manufacturer despite their actual knowledge

of those facts.

Clark never included the firearms listed in the Indictment as part of his annual report of

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firearms manufactured known as an ATF Form 5300.11- Annual Firearms Manufacturing and

Exportation Report.

The defendants never notified ATF that they removed the serial number from a registered

machine gun to weld it onto an unregistered machine gun. The defendants never notified ATF

that they destroyed the original registered machine gun to have it removed from the NFRTR.

The defendants never notified ATF that the machine gun they were now transferring was a

completely different model and manufacturer. The defendants never sought and never received

approval from ATF to carry out their scheme. ATF approved the transfer forms because the

defendants did not disclose and concealed this information.

II. LAW AND ARGUMENT

A. Machine Guns

On May 19, 1986, 18 U.S.C. §922(o) took effect and made it unlawful for any person to

transfer or possess a machine gun. Only two exceptions to the machine gun ban applied:

(A) a transfer to or by, or possession by or under the authority of, theUnited States or any department or agency thereof or a State, or a department,agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machine gun that waslawfully possessed before the date this subsection takes effect. 4/

18 U.S.C. §922(o). The result of this ban was that private individuals could only possess or

transfer machine guns made and registered prior to May 19, 1986. Congress intended for

machine guns made after May 19, 1986 to be restricted for government use. Machine guns

manufactured after May 19, 1986 were precluded from entering the commerce stream for private

individuals.

The manufacturing of machine guns remains a regulated industry even after the May 19,

1986 ban. In order to manufacture machine guns, a person must obtain a Federal Firearms

To be lawfully possessed, the machine gun had to be registered in the National4/

Firearms Registration and Transfer Record (NFRTR) prior to May 19, 1986 and the individualcould not be a prohibited possessor.

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License (FFL) and pay the applicable Special Occupational Tax (SOT). An FFL/SOT must5/ 6/

comply with ATF’s regarding the manufacturing of firearms. Of significance in this case, an

FFL/SOT must must file registration paperwork for the machine gun with the NFRTR. This5/

paperwork, which is includes information about the manufacturer along with the date of

manufacture, the type, model, length of barrel, overall length, caliber gauge or size, serial

numbers, and other marks of identification of the firearms manufactured in a single day is known

as an ATF Form 2, Notice of Firearms Manufactured or Imported. The registration paperwork6/

must filed before the close of the following business day of completing the machine gun.

FFL/SOTs are required to fill out the paperwork in duplicate, sending the original to the7/

NFRTR and keeping a copy with the other records required to be maintained. 8/

In addition to filing the registration paperwork, an FFL/SOT must file an annual report

of firearms manufactured known as an ATF Form 5300.11- Annual Firearms Manufacturing and

Exportation Report. This report must list what kind of firearms were manufactured by the9/

FFL/SOT. This annual report must be filed by April 1 , even if FFL/SOT did not manufacturest

any firearms.

Complying with these regulations does not permit an FFL/SOT to transfer a machine gun

manufactured after May 19, 1986 to a private individual. FFL/SOTs may only manufacture

machine guns for sale or distribution to any department or agency of the United States or any

State or political subdivision thereof, or for use by dealers qualified under this part as sales

27 C.F.R §478.41; 27 C.F.R §479.31. Each of the defendants was an FFL/SOT at5/

various times throughout the conspiracy.

Although FFL/SOT can be used to refer to Importers and Dealers in Firearms or6/

Destructive Devices, for the purpose of this pleading, it is limited to Manufacturer of machineguns.

26 U.S.C. §5841(b); 27 C.F.R §479.101(b); and 27 C.F.R §479.68.5/

27 C.F.R §479.1036/

27 C.F.R §479.1037/

27 C.F.R §479.1038/

18 U.S.C. § 923(g)(5)(A) grants ATF the authority to require FFL/SOTs to submit an9/

annual manufacturing report.

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samples. Otherwise, the registration of machine guns made after May 19, 1986 and any10/

subsequent transfers is conditioned upon and restricted to the sale or distribution of such

weapons for the official use of Federal, States or local governmental agencies. 11/

Machine guns that were registered in the NFRTR before May 19, 1986 can be transferred

by filing either an ATF Form 3 or an ATF Form 4. These two transfer forms require that the12/

form be executed under the penalties of perjury and that the firearm shall be identified by type;

serial number; and name and address of the manufacturer; model; caliber size; barrel length, and

overall length.

B. Public Authority/ Entrapment by Estoppel

Defendant’s claim of public authority is more appropriately categorized as “entrapment

by estoppel.” In order to establish an entrapment by estoppel defense, a defendant must show

that (1) an authorized government official empowered to render the claimed erroneous advice

(2) who has been made aware of all the relevant historical facts (3) affirmatively told [defendant]

the proscribed conduct was permissible (4) that [defendant] relied on this false information, and

(5) that [defendant’s] reliance was reasonable. U.S. v. Batterjee, 361 F.3d 1210, 1216 (9th Cir.

2004) (internal citations omitted).

The Ninth Circuit has held that reliance is reasonable if “a person sincerely desirous of

obeying the law would have accepted the information as true, and would not have been put on

notice to make further inquiries.” United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970); U.S.

v. Ramirez-Valencia, 202 F. 3d 1106, 1109 (9th Cir. 2000).

27 C.F.R §479.105(c). A dealer is any person, not a manufacturer or importer,10/

engaged in the business of selling, renting, leasing, or loaning firearms and shall includepawnbrokers who accept firearms as collateral for loans. 26 U.S.C. §5845(k) In order for anFFL/SOT to transfer to a dealer a machine gun manufactured and registered after May 19, 1986, they must establish by specific information the expected governmental customers who wouldrequire a demonstration of the weapon, information as to the availability of the machine gun tofill subsequent orders, and letters from governmental entities expressing a need for a particularmodel or interest in seeing a demonstration of a particular weapon. Additionally, if an FFL/SOTwants to transfer more than one machine gun of a particular model to a dealer they mustestablished the dealer’s need for the quantity sought to be transferred. 27 C.F.R §479.105(d).

27 C.F.R §479.105(c)11/

27 C.F.R §§479.84 and 479.8812/

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Public authority or entrapment by estoppel is an affirmative defense. As such it may be

excluded where the evidence is insufficient as a matter of law to support a proffered defense.

See U.S. v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991). When a defendant fails to make a

prima facie showing for the affirmative defense, the Court may properly preclude the defendant

from presenting the defense as well as any supporting evidence. See e.g., U.S. v. Moreno, 102

F.3d 994 (9th Cir. 1996) (proffered evidence failed to meet all three elements of duress defense).

In this case, the defendants cannot make a prima facie showing for entrapment by estoppel or

public authority.

C. Argument

Reviewing the evidence in a light most favorable to the defendants reveals that their claim

of public authority defense or entrapment by estoppel fails on several prongs of the test.

First Prong: An authorized government official empowered to, never rendered erroneous

advice.

First, the United States concedes that the NFA Branch examiner who review the transfer

paperwork for approval or denial would constitute an “authorized government official” who is

“empowered” to render advice on the legality of transferring a machine gun. However, as is

discussed further in under prongs 2 and 3, the mistake of approving the transfer paperwork was

caused by the defendants deceit and therefore, they cannot rely upon this defense.

Second Prong: An authorized government official was never made aware of all the

relevant historical facts.

In this case, the defendants did not make the NFA Branch examiners aware of all the

relevant historical facts. Indeed, the defendants purposefully concealed information from ATF

and the NFA Branch examiners.

Although Clark explained the procedure to the defendants, none of the defendants ever

explained their scheme to ATF. Nor did the defendants seek overt approval from ATF to remove

the serial number from one registered machine gun, to then weld onto another unregistered

machine gun, and then finally to transfer and possess the newly manufactured machine gun using

the original machine gun’s registration.

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The defendants did not file an ATF Form 2-Notice of Firearm Manufacture when they

made the new machine gun using the serial number from a registered machine gun that they

destroyed. They did not file an Annual Manufacturing Report listing any of the machine guns.

They never notified ATF that the machine guns were manufactured after the May 19, 1986 ban.

They did not notify ATF that they violated the law by removing a serial number from a

registered machine gun. They never notified ATF that they were welding the serial number4/

into an unregistered machine gun they recently manufactured.

On the transfer paperwork, they purposefully kept the model, manufacturer, and serial

number the same as the original registered machine gun to avoid detection. Transferring the

original machine gun without a caliber, barrel length, and overall length to Clark–who then

transferred the machine guns to the other defendants noting the newly manufactured machine

gun’s caliber, barrel length, and overall length– was all done to disguise their conduct as a

simple caliber conversion. The defendant’s declared under penalty of perjury that the

information on the transfer paperwork was true, correct and complete when in truth they knew

it was not “true, correct and complete” because they were concealing facts about the machine

gun.

Because the defendants did not notify the NFA Branch examiners of all of these relevant

historical facts, they fail this prong and cannot claim public authority or entrapment by estoppel.

Third Prong: The defendants were never affirmatively told that their proscribed conduct

was permissible.

Because the defendants never explained their scheme to ATF or overtly sought ATF’s

approval for their scheme, there was no affirmative approval of their conduct. Furthermore, the

defendant’s cannot claim that the transfer paperwork– only approved because they concealed the

truth from the NFA Branch examiners–is an affirmative approval since they never revealed the

full scope of their conduct to ATF.

Fourth Prong: The defendants did not rely on erroneous advice from an authorized

18 U.S.C. § 922(k) and 26 U.S.C. §5861(g) prohibits the obliteration, removal,4/

changing, or altering the manufacturer’s serial number.

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government official.

The defendants did transfer and possess the machine guns after the transfer paperwork

was approved. However, because they did not seek and ATF did not approve their scheme and

they failed to disclose the relevant historical facts, the defendants never reach this prong in the

analysis. Therefore, there can be no reliance.

Fifth Prong: Any reliance by the defendants’ was unreasonable.

Similarly, the defendants do not reach this final prong in the analysis. Because the

defendants did not disclose all relevant historical facts and ATF did not approve their scheme,

there can be no reliance, let alone reasonable reliance. Additionally, any claims that the

approved transfer paperwork provided a “reasonable reliance” for the defendant are without

merit because of their fraudulent pretenses.

In order for reliance to be reasonable, it must be reasonable such that “a person sincerely

desirous of obeying the law would have accepted the information as true, and would not have been put

on notice to make further inquiries.” United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970). Here

the defendants had no desire to obey the law as they knew the full scope of the scheme to manufacture

and transfer the machine guns. They knew that Clark was removing the serial number from one machine

gun– a violation of 18 U.S.C. § 922(k) and 26 U.S.C. §5861(g)– to be welded onto an unregistered

machine gun that he manufactured from parts kits they often provided. Just removing the serial

number from one machine gun put the defendant’s on notice that federal law was being violated and that

they should make over inquiries with ATF.

Each of the defendants is an FFL/SOT possessing a sophisticated degree of knowledge and

experience about machine guns and firearm regulations. The defendants reliance was not reasonable

as they knew the full scope of the scheme to manufacture and transfer machine guns which they

purposefully concealed from ATF.

III. CONCLUSION

The defendant’s did not disclose all “relevant historical facts” when they filed the transfer

paperwork under penalty of perjury nor did they seek approval for their scheme; therefore, any

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reliance on the transfer paperwork being approved was not reasonable. The United States’s

Motion in Limine should be granted as the defendants cannot establish through the evidence that

they were entrapped by estoppel or acted upon public authority.

Respectfully submitted this 28th day of September, 2012.


/s/ Kathy J. Lemke KATHY J. LEMKEAssistant United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that on September 28, 2012, I electronically transmitted the attacheddocument to the Clerk's Office using the CM/ECF System for filing and transmittal of aNotice of Electronic Filing to the following CM/ECF registrants:

Gregory Anthony Bartolomei (CLARK) Joseph R. Conte (GOLDSTEIN) William Foreman (KALISH) Michael Smith (KALISH) Frederick Richard Petti (ARNBERGER) Robert E. Sanders (RODMAN) Loyd C. Tate (GREENBERG)

/s/ Kathy J. Lemke KATHY J. LEMKEAssistant United States Attorney

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#354 motion in limine to public authority

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