411 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS UNITED STATES OF AMERICA MAGISTRATE'S DOCKET NO. v. C-76-500M GUS CARGILE RESIDENCE LOCATED AT 4313 SEQUOIA CORPUS CHRISTI, TEXAS ORDER Philip A. Schraub United States Magistrate On the 1st day of March 1977, Mr. Gus Cargile filed his motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e) and invoking the general equity jurisdiction of the Court. Local Rule 24, as amended on February 1, 1977, grants the United States Magistrate the power to hear nondispositive criminal or civil motions. Pursuant to such rule, this Magistrate Court assumed jurisdiction of this motion. This Court held a hearing on the motion on March 10 and 11, 1977, and both parties offered testimony. The movant concedes that certain property was illegally seized pursuant to a search warrant issued by this Court on November 24, 1976, based upon an insufficient affidavit. The Court has care- fully considered the testimony elicited in this action and concludes that movant's motion must be granted. The affidavit submitted in support of the government's request for a search warrant alleged that Special Agent (S/A) Robert E. Bailey observed firearms for sale at the Padre Staples Mall on September 12, 1976 and that Gus Cargile was selling the firearms with Les Shook. The testimony of Gus Cargile established that he was in fact in Reynosa, Mexico on September 12, 1976. Bailey was unavailable to testify but John Crowder, S/A for the Bureau of Alcohol, Tobacco and Firearms (ATF) did take the stand. Crowder, who had signed the affidavit, testified that Bailey had seen Les Shook and Cargile selling guns. Shook had given Bailey a card which included a phone number later found to have been listed to an address known as Cargile's. Crowder established that Bailey in fact saw no guns sold but only saw guns exhibited. The affidavit's second allegation was that Crowder told 412 Cargile to stop selling guns because Cargile was in violation of the 1968 Gun Control Act. Crowder's opinion that Cargile was a "dealer" is no evidence of a violation of law such as to create probable-cause for issuance of a warrant. Next, there was an allegation that Cecil Horne had been told by Les Shook that Cargile and he had "fifteen hundred firearms." At the hearing it was established that Shook made the statements herein while under sedation recovering from surgery at Spohn Hospital. Because of the sedation the statement recited in the affidavit is therefore not credible and cannot be considered by this Court. S/A Bennie Davis was alleged to have purchased two firearms on October 9, 1976 from "Sonny Harmon, an associate of Gus Cargile and Les.Shook." Further alleged was Harmon's statement that the money from the gun sales was to go to "Gus". The testimony of Cargile and Harmon rebutted the inference that the guns sold were Cargile's. Harmon had a debt to Cargile that he eventually repaid with the money from these sales. S/A James Rideout is mentioned in the affidavit as also having purchased a gun from Sonny Harmon on October 10, 1976. Rideout is attributed with a statement that Cargile told Rideout that since a warning from ATF Cargile had begun selling belts and buckles and let his friends sell his guns for him. At the hearing, Cargile denied having made such a statement and further denied that any of his guns had been sold by any one. In any event, Rideout's recitation is of little probative force in establishing that Gus Cargile was or is dealing in firearms. S/A Anthony De Nardi is cited in the affidavit, as having pur- chased a firearm from Sonny Harmon on October 10, 1976. "DeNardi overheard Cargile tell Harmon not to sell any guns to that Mexican." DeNardi also alleged Cargile's statement that Cargile had $50,000 in guns but that an ATF warning kept him from selling them. DeNardi testified that in fact Cargile had said he had been in the business but that Cargile had stated he "couldn't sell any guns." Rideout had testified that the "Mexican" referred to in the affidavit appeared to him to be intoxicated or feebleminded. DeNardi disputed Rideout's impression. Taken as a whole, this allegation cannot be taken as evidence of Cargile's dealing in guns. 413 S/A Jimmy Wooten allegedly saw Gus Cargile load firearms into his trailer on November 5, 1976. Cargile disputed this allegation at the hearing, stating that unless Wooten was in his garage Wooten could not have seen anything. Cargile further denied that any guns had been loaded on such a date. S/A Rideout also allegedly purchase some firearms from "Louis Pugh and Gus Cargile" on November 6, 1976 in Pasadena, Texas. The testimony at the hearing showed that Pugh had sold the guns and that Cargile had made some general remarks about prices. Cargile also informed Rideout that he had a shoulder stock for a Mauser pistol. At the hearing Cargile denied that the guns sold by Pugh were his, and Pugh affirmed this denial. Cargile also denied having offered or sold the shoulder stock to Rideout. Although the affidavit alleged that Cargile offered to sell a shoulder stock, the sale of a stock is not governed by 18 U.S.C. section 922 (a)(1). Therefore, the allegations regarding the stock are irrelevant. On November 21, 1976 Rideout also allegedly heard Cargile state that all of his guns were for sale except for "two tiffany handle revolvers." Cargile denied such a statement and testified that he had said none were for sale and added that he had only one tiffany handled revolver. It appears to this Court that even if it accepted as true the disputed issues of the gun sales of October 9-10 and November 6, as-stated in the affidavit that the remaining challenged allegations are either rebutted or irrelevant to a finding of probable cause that Gus Cargile is dealing in guns without a license. The affidavit and warrant challenged together with the testi- mony heard do not persuade this Court that probable cause existed for the issuance of the warrant. The seizure of the property was, therefore, illegal. The jurisdictional basis for compelling the return of illegally seized property rests on both Rule 41(e) F.R. Crim. P. and the general equitable jurisdiction of the federal courts. Hunsucker v. Phinney 497 F.2d 29, 34 (5th Cir. 1974) and Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975). In determining whether to exercise this "anomalous jurisdiction" the Fifth Circuit has recently listed in Hunsucker and Richey some of the considerations to guide a federal court in determining whether to compel the return of unlawfully 414 seized property prior to the initiation of civil or criminal proceedings. Based on the testimony it is apparent that the factors enume- rated in Hunsucker to govern the court are applicable to this Factual dispute. In Richey the Fifth Circuit wrote, "First, and perhaps fore- most is the question whether the motion for return of property accurately allege that government agents...in seizing the property displayed a callous disregard for the constitutional rights of the movant." Richey v. Smith 515 F2d at 1243. The pleading of the movant coupled with the testimony of the Alcohol, Tobacco and Firearms agents displaying a lack of probable cause together with the oral and written representations regarding the quantity and nature of the firearms before the United States Magistrate persuades this Court that the requirements of Richey have been satisfied. The movant has an individual interest and need for the collec- tion which he seeks to have returned. Unlike contraband to which a petitioner is not legally entitled (see e.g. United States v. Jones 317 F. Supp. 856 (E.D. Tenn. 1970)) or items of no noteworthy need such as betting slips or wager tickets (see e.g. Donlon v. United States 331 F. Supp. 979 (D. Del. 1971)) the items seized constitute a bona fide collection of guns, which serve as the movant's hobby. If not returned, the movant is likely to suffer irreparable harm, as there has been ample testimony that many of the items are unique and valuable collectibles and at least some of the items have been damaged through mishandling and may be suffering determination in the custody and control of the Alcohol, Tobacco and Firearms agents. Finally, a fourth factor listed by the Fifth Circuit is the general adequacy of legal remedies. The legal remedies are inadequate in the instant case, especially in light of the Supreme Court's admonitions that legal remedies for Fourth Amendment vio- lations must be viewed restrictively, for the Fourth Amendment is basically prophylactic in nature. See generally, United States v. Calandra 414 U.S. 338 (1974); Elkins v. United States 364 U.S. 206 (1960). Evidence which supports all of the guidelines suggested by the Fifth Circuit for the exercise of the court's discretion in 415 ruling on a motion as that currently before the court is present in the instant case. THEREFORE, THE MOTION IS GRANTED. The seized property (with the exception of Item #4, page 4 of 11 listed in the government's inventory) shall be returned to movant Gus Cargile. IT IS SO ORDERED THIS 14th DAY OF MARCH, 1977 [signed] Philip A. Schraub United States Magistrate UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS UNITED STATES OF AMERICA VS. MAGISTRATE'S DOCKET NO. C-76-5009 GUS CARGILE RESIDENCE LOCATED AT 4313 SEQUOIA CORPUS CHRISTI, TEXAS MOTION FOR MAGISTRATE TO CERTIFY FACTS CONSTITUTING CONTEMPT TO DISTRICT COURT COMES NOW, Gus Cargile, Petitioner herein, by and through his attorney, Robert D. Thorpe, and respectfully moves the United States Magistrate for the Southern District of Texas, Corpus, Christi Division, pursuant to 28 U.S.C.A. Section 636(d) for a certification of facts by this Court sitting as a United States Magistrate to the District Judge of the District Court wherein the Magistrate is presiding facts which constitute a contempt of the Magistrate Court for disobedience or resistance to a lawful order entered in the above styled case by the Magistrate, said disobedi- ence being by Jim Wooten, resident agent in Corpus Christi office of the Bureau of Alcohol, Tobacco and Firearms for refusal to follow the order of the Court; and for grounds therefore Petitioner alleges as follows: 416 I On March 14, 1977, pursuant to Federal Rule of Criminal Procedure 41(e), the general equity jurisdiction of the Court, and Local Rule 24, this Court entered an order directing that property previously seized from the Petitioner, Gus Cargile, same being 185 firearms which were seized from Petitioner pursuant to a search warrant issued on November 24, 1976, and executed that same day by officers of the Bureau of Alcohol, Tobacco and Firearms. A copy of the order is attached hereto as Exhibit "A" and incorporated by reference. II Petitioner herein by and through his attorney, Robert D. Thorpe, contacted Assistant United States Attorney, Robert Berg, on March 14, 1977, and ascertained that the Government did not intend to appeal the order entered that date by the Magistrate Court and attached hereto as Exhibit "A". On March 15, 1977, at approximately 8:30, Robert Thorpe phoned Mr. Jim Wooten, resident agent in charge, United States Treasury Department-Bureau of Alcohol, Tobacco and Firearms, Corpus Christi Office, to arrange for the return of the weapons in Mr. Wooten's care, custody and control pursuant to Court order. Mr. Wooten indicated to said attorney that he would return the weapons upon receiving administrative approval from his supervisor, and would be so informing Mr. Thorpe that morning. At approximately 10:30 on March 15, 1977, Mr. Thorpe again contacted Mr. Wooten regarding the return of Gus Cargile's property pursuant to order of the Court. Again Mr. Wooten indicated that he had not received administrative approval and therefore could not return the guns. At approximately 1:15 on March 15, 1977, Mr. Thorpe again contacted Mr. Wooten and requested that arrangements be made for the return of the weapons. During each of these phone conversations Mr. Wooten was aware and made to be aware that Mr. Cargile had made arrangements and was ready and able to pick up the property in the evidence locker located on the eighteenth floor of The Six Hundred Building, Corpus Christi, Texas, the Corpus Christi Office of the local Bureau of Alcohol, Tobacco and Firearms, Mr. Wooten in charge. Mr. Wooten again informed Mr. Thorpe that he was unable to return the weapons as administrative approval had not been 417 received. He gave Mr. Thorpe a phone number of one special agent in charge, Tyler in Dallas, Texas. Upon contacting agent Tyler, Mr. Thorpe was informed that the Bureau of Alcohol, Tobacco and Firearms was then in the process of determining whether or not they would return the firearms or appeal the Magistrate's order. Apparently no efforts were being made at that time by the Bureau of Alcohol, Tobacco and Firearms to obtain a stay of this Court's order. At approximately 5:00 p.m. on March 15, 1977, Mr. Thorpe and Mr. Cargile approached Mr. Wooten in person and again demanded the return of the property subject to the order attached hereto as Exhibit "A". Mr. Wooten again indicated that he would be unable to return the property to Mr. Cargile pursuant to the Court order until he had received administrative authority from his superior, Mr. Tyler. III On the morning of March 16, 1977, at approximately 8:30, the undersigned attorney, Robert Thorpe, and Petitioner herein, Gus Cargile, approached Mr. Wooten at the above described ATF Office and again demanded the return of Mr. Cargile's property as per order attached hereto and incorporated by reference as Exhibit "A". Mr. Wooten again refused to return the property as ordered by this Court. At Mr. Thorpe's request, Mr. Wooten indicated that he did not have in his possession or have knowledge of a stay of the Court's order having been granted by a superior court. The property now remains in the possession of Jim Wooten, resident agent in charge, ATF, at the above noted location in Corpus Christi, Texas, within the jurisdiction of this Court. WHEREFORE, PREMISES CONSIDERED, Petitioner herein respectfully moves this Court to hold an ex parte hearing wherein the alleged facts may be sworn to before the Court and thereby support the Magistrate's certification of the alleged facts to the Judge of the District Court whereupon, after notice, and that the District Court issue an order requiring Jim Wooten to show cause why he should not be held in contempt of court by the District Judge for his 418 disobedience to the Magistrate's lawful order as attached hereto and incorporated by reference. Respectfully submitted, SHAW, THORPE STONE 5333 Everhart Suite 125 Corpus Christi, Texas 78411 (512)855-3371 BY: Robert D. Thorpe STATE OF TEXAS COUNTY OF NUECES SUBSCRIBED AND SWORN TO BEFORE ME, on this the 16th day of March, 1977. Notary Public in and for Nueces County, Texas 419 Senator MCCLURE. You didn't agree with the judge so you just didn't comply with his order. Mr. DICKERSON. We were reviewing the situation to make a determination whether we should. Eventually we did comply. Senator MCCLURE. After you were threatened with contempt? Mr. DICKERSON. We were reviewing the situation at the time. Senator MCCLURE. Reviewing which situation, whether you were going to comply with the law? Mr. DICKERSON. No, whether we were going to appeal. Senator MCCLURE. Sure, Federal agencies have rights, you have rights. But you are not above the law and when the judge issues the order, you comply with the order. If you don't want to comply with the order and appeal, you don't wait until a citizen goes back to court to get a contempt citation to force you to do what he said. It is that attitude that caused the problems, it seems to me. Surely, you are entitled to pursue your legal rights. But your legal rights are pretty well defined and they don't mean defying a court order, just because you don't happen to agree with the judge. I don't think there could be any question concerning that. I will be submitting some questions for the record with regard to how effective your work has been. I do want to pursue the question of how many firearms have been confiscated. I do want to find out where they are, what happened to them. Those are not casual requests because they spring from the very strong conviction on my part that the rights of individual citizens have, at times, not been as carefully dealt with as they should have been. Again, my major purpose in these hearings is not to examine the past, except with respect to what we can do for the future, but still at the same time to try if possible, to correct some injustices where they did occur, if that is possible for us to do at this time. I am also concerned with a continuing attitude that seems to me-and you may not agree-seems to me that you tried to suppress the evidence that is not favorable to your point of view. I am talking about the failure to reveal the memorandum concerning the inaccuracy of your records. That is grounds for reversal of those convictions, it seems to me, both under criminal procedure and under the precedents of the Supreme Court case. We have now a study which was commissioned with respect to the fragments in explosives. You have released a portion of that study and you have suppressed the portion that didn't agree with the conclusions you wanted it to have. You have, it seems to me, said that, yes, you will have regulations, but know you don't have them yet. Yet the law is being enforced. It is being enforced by agents who are told to exercise their own discretion, yet those agents in exercising their own discretion have taken actions which you, yourselves, say have at times been perhaps abusive. In response to questions as to whether or not the individual agencies who have taken those actions have been subjected to any discipline, you are unable to answer that they have. I don't think that reasonable people looking at that record have any 420 particular cause to believe that the agency is attempting, up until this time at least, to comply with the law with a sensitive regard for the rights of people who are not known to be criminals. I recognize the difficulties that you have in some of these areas of law enforcement. But I think we are going to have to take a look at the correction of basic statutes and perhaps working with you can come up with some definitions in areas where you found it difficult to come up with definitions. My own view of the over-broad reach in the 1968 Gun Control Act, as Mr. Davis has indicated, is not unknown. If it is against the law to sell a gun to a felon, that is nothing new. It isn't taking the 1968 Gun Control Act to say that. It didn't take the 1968 Gun Control Act to say it is illegal to possess a machinegun unless it is registered. It didn't take the 1968 Gun Control Act to tell us it was illegal to have a sawed- off shotgun. There were some areas which could be improved in the enforcement of criminal justice; but most of those were enforcement means, not the enactment of new statutes. In 1968, the Congress responding to a broad national emotion, enacted a law which is admittedly now too vague to be enforced with care; and that the efforts by the enforcement officials have been plagued by that vagueness, and the Congress now perhaps must do something to correct what perhaps we created in the 1968 Gun Control Act asking you to enforce a law that by its very terms is difficult and perhaps impossible to enforce fairly. Mr. DAVIS. Senator, I think obviously at this hour, especially as I have to testify at another hearing at 2 o'clock on the Senate side, it is obviously impossible for us to respond to all our closing observations. I think it would be fair to say with some of them we might agree and with many of them we might disagree. I appreciate the opportunity to participate in these hearings in the hope, as you represented or suggested, as well as Senator DeConcini suggested, that we can work to have an agency that does enforce the law, and I think that we have taken actions over the last several years to move in the right direction. I think with Director Dickerson's leadership-he has the kind of people, he has some good solid people out there who are going to get in and do a good job. Senator MCCLURE. I think the appointment of Mr. Dickerson is a hopeful sign. On the other side of that ledger, you have to balance the tremendously long time and the overwhelming evidence that it took to get rid of that other Mr. Davis. Mr. DAVIS. I don't think I better comment on that. Senator MCCLURE. Thank you. Senator DECONCINI. Do you have any further questions? SUBMITTED QUESTIONS Senator MCCLURE. I have some questions to submit for the record. [The following questions were not asked at the hearing but were submitted to the Department for response subsequent to the hearing:] 421 SUBMITTED QUESTIONS QUESTION 1 You indicate three basis for your statement that "the Bureau has compiled an impressive record and has contributed significantly to the public safety." The first is your statement that BATF traced 150,000 firearms "in 1972." Did you in fact trace that many firearms in that one year? RESPONSE In my opening statement I stated that ATF had traced 150,000 firearms since the establishment of its tracing function in 1972. QUESTION 2 What has been your failure rate upon firearms traces requested by city, county, state and federal law enforcement? RESPONSE Approximately 40 percent of all firearms tracing requests received since 1972 were untraceable, primarily because of insufficient firearms identification data submitted by the requesting agency, the unavailability of licensee records, and licensee recordkeeping deficiencies. QUESTION 3 Did not BATF only last year defend its intentions to establish a computerized firearms transfer system on the grounds that its present attempts to trace firearms for state and local authorities were plagued by an excessive number of failures and too great delays? RESPONSE Yes, that is correct. The principal reasons for the tracing failures and delays that we were experiencing, namely the submission of insufficient firearms identification data by the requesting agency, the unavailability of licensee records, and licensee recordkeeping deficiencies, were conditions that existed to hinder the overall effectiveness of our tracing efforts. QUESTION 4 As a second indication of your effectiveness you note that "since 1972 we have arrested more than 25,000 persons." Does this include only firearms arrests, or are you including arrests for moonshining into this total? If only firearms: This would indicate an average over the last 6 1/2 years of somewhat over 3,800 arrests per year. Is it not a fact that your arrests for next year are projected at barely 2,000, not much over one half of your average? Why the sudden decline? 422 RESPONSE The "more than 25,000 persons" arrested covers all enforcement programs. A breakdown of these arrests covering the period fiscal years 1973 through 1978 follows: ARRESTS Firearms Explosives Other* Total 18,669 1,270 6,565 26,504 *Includes legal and illicit alcohol, wagering and tobacco. The average yearly firearms arrests for the 6 year period is slightly over 3,100. It is correct that projected firearms arrests for fiscal year 1980 are slightly over 2,000. A downward trend started during fiscal year 1978 as a result of the development of a new national investigative strategy which focuses resources on complex, multijurisdictional criminal investigations that have the greatest impact on serious crimes. While we will be making fewer cases and arrests, they will involve more significant criminal activity. QUESTION 5 Of these 25,000 arrests, how many were actually found guilty? RESPONSE Since 1972, during the period when 26,504 persons were arrested, there were 20,822 persons convicted for ATF violations. ATF cannot categorically state that the 20,822 convictions stem from the 26,504 arrests. Judicial delays often result in lengthy delays between the arrest date and the judicial completion date. Consequently some of the convictions may represent arrests made in years prior to 1972. Convictions Firearms Explosives Other* Total 14,617 976 5,229 20,822 *Includes legal and illicit alcohol, wagering and tobacco. QUESTION 6 Of the 25,000 persons, how many were straw man cases? How many were dealing without a license cases? RESPONSE ATF does not break down its arrests by the identity "strawman," nor by any other category that would be similar in definition. 423 QUESTION 7 As your third indication of effectiveness you state that you have removed more than 100,000 firearms from the illicit market place since 1972. How many of these firearms were antiques or collector's items? RESPONSE I should have said that the Bureau removed more than 100,000 firearms since 1968. Antiques are not firearms as defined by the Gun Control Act and are not subject to seizure. Licensed collectors are authorized under the law to deal in curios and relics (as defined by the implementing regulations) in interstate commerce with other licensed collectors. When firearms are used or intended to be used in violation of the law they are subject to seizure regardless of their curio or relic status. Such seized firearms are not identified as such at the time of seizure and no statistics are available as to which ones were or could have been defined as curios or relics. QUESTION 8 This would indicate an average of over 15,300 confiscated over the last 6 1/2 years. Is it not a fact that the number of confiscated firearms per year has never exceeded 11,000, and was only 8,900 last year? How do you explain this discrepancy? Can you provide your figures upon which your estimate is based? RESPONSE I should have said that the Bureau removed the 100,000 firearms since 1968. The following figures represent the number of firearms seized by the Bureau of ATF since the inception of the Gun Control Act of 1968. The figures are broken down by fiscal year 1969 through 1979 (1/2 yr) for a total of 112,671 firearms seized. For the last 6 1/2 years the Bureau has seized 58,004 firearms for an average of 8,924 per year. 424 Number of Fiscal Year Firearms Seized 1969 4,152 1970 34,679* 1971 7,995 1972 7,841 1973 6,448 1974 7,116 1975 11,841 1976 6,579 T.Q. 1,356 1977 11,014 1978 10,691 1979 (1/2 yr.) 2,959 Total 112,671 * Approximately 19,000 pistols seized by New York District in Westbury Sales Corporation importation case. QUESTION 9 I assume that you maintain these confiscations "from the illicit market place' were primarily aimed at street criminal guns. I also note that when the firearm is confiscated by the Bureau, the Bureau normally fixes a value. on the firearm. Was not the average value of firearms confiscated last by the Bureau in excess of $100 per gun? RESPONSE All firearms seized by ATF are individually appraised by three independent, sworn appraisers, who establish a fair market value of the firearm, at the time of appraisal. One-hundred eight dollars and twenty-nine cents is the average appraised value for an individual firearm seized over the past 6 1/2 years. QUESTION 10 In your statement you then cite an arson case and a bombing case, which you state were developed with the assistance of BATF. I assume that the primary responsibility for violation of the laws against arson lies with state and local authorities. RESPONSE While arson laws are primarily the enactments of State or local legislatures, Chapter 40 Title 18, USC, (Explosives Control Act of 1970) does mandate the investigations of certain types of arson offenses which affect interstate commerce. Arsons involving commercial or industrial property would become a Federal violation if the interstate nexus was present and if the arson was committed by the use of an explosive as defined in the Explosives Control Act. Arsons which involve Federal violations under the Explosives Control Act are inves- 425 tigated by ATF. These investigations are generally initiated when assistance is requested by State and local agencies. QUESTION 11 How much of the responsibility for the arrest in the Shelby arson case should be attributed to BATF and how much to State and local investigators? will you make available to us investigation reports from which we can assess this? RESPONSE The facts in the Shelby, NC explosion are these: On May 25, 1979, a fire and explosion destroyed a one block area of downtown Shelby, North Carolina, killing four firemen and a city utilities employee. Damage was estimated at $5 million. State and local as well as 10 ATF agents responded to the scene immediately. The ATF National Response Team was dispatched to the scene. From this point on, a coordinated joint investigation was launched by the 23 ATF agents, side-by-side with the Shelby Police, Fire, Sheriff's Deputies and North Carolina State Bureau of Investigation personnel. The ATF National Response Team (comprised of selected special agents along with a technical explosives expert and forensic chemist) provided the necessary expertise at the scene and was largely responsible for the gathering of the physical evidence. ATF effort played a significant role in the development of this case. Since this is an ongoing investigation, we are judicially precluded from revealing certain facts and investigative techniques which could damage or jeopardize this case. Therefore we regret that our investigative reports cannot be made available to you while this case is still in litigation. State Attorney General Rufus Edmisten, on June 19, 1979, made the following statement to the Charlotte News: "we put all we had into this investigation. When the Shelby fire occurred, we decided this fire was of such serious magnitude, we would make absolutely sure to determine its cause and to let people know that unlawful burning would be investigated. The case was pieced together by painstaking work. This is sort of a test case to see how we all can work together". Since this is an ongoing investigation, we are judicially precluded from revealing certain facts and investigative techniques which could damage or jeopardize this case. 426 Therefore we regret that our investigative report's cannot be made available to you while this case is still in litigation. QUESTION 12 I take it that the Shelby arson case is still in litigation at this time. RESPONSE This case is still in litigation in State Courts of North Carolina. QUESTION 13 You also refer to a bombing at Sparrows Point, Maryland, in which you note that taggants were discovered and the arrest of a suspect stemmed from "subsequent investigation". Are you going to tell this committee that the arrest was caused by the discovery of the taggants? RESPONSE On May 10, 1979, at Sparrows Point, Maryland, a vehicle occupied by two persons was bombed. The driver was killed and the passenger received serious injuries. Evidence was gathered at the scene and subsequently sent to the ATF laboratory in Rockville, Maryland. Examination of the debris submitted revealed the presence of taggants. The taggants identified the explosive used in the bombing as Tovex 220. As a result of the taggant identification ATF agents proceeded to a Tovex Dealer in Martinsburg, West Virginia and located the ATF Explosives Transaction Forms indicating the purchase of Tovex 220 and DuPont electric blasting caps by the defendant. The identification of taggants in this case was a major contributing factor in this investigation that led to the arrest of the suspect. QUESTION 14 Is it not a fact that the suspect in that case would be the logical suspect for the State and local authorities in any event: in particular that he had but a fourth grade education, was found to have wires from the detonating device used on the bomb in his possession, was discovered by State and local authorities to have threatened the victim, and was moreover visibly upset immediately after the bombing and fled town within hours? RESPONSE Since this case is still in litigation, the only information that may be disclosed is that which is a matter of public record. Attached is a copy of the affidavit for the arrest of James L. McFillin. 427 "Reproduction from original without change" AFFIDAVIT This is an affidavit in support of a United States Magistrate's Arrest Warrant for James L. McFillin, white male, DOB 11/21/22, listing an address of 5511 O'Donnell Street, Baltimore, Maryland, for violation of Title 18 USC, Chapter 40, Section 844(i) and 842(a)(3)(A). I, Daniel P. Boch, being duly sworn upon my oath, depose and state: That I have been employed as a Special Agent by the Bureau of Alcohol, Tobacco and Firearms, Criminal Enforcement, U.S. Treasury for over three years. On May 10, 1979, your affiant was notified by Detective Ray Koslowski, Baltimore County Police, that an explosion had occurred in a truck which was then parked in the number seven parking lot at Bethlehem Steel, Sparrows Point, Maryland. Upon arrival at Bethlehem Steel, Sparrows Point Police Department, it was learned that at approximately 10:40 p.m., May 10, 1979, in the number seven parking lot, Bethlehem Steel, Sparrows Point, Baltimore, Maryland, an explosion occurred in the cab of a 1977 Dodge truck, Maryland license N36099, serial number D14A37S056767. The driver and owner of this truck was Nathan A. Allen Sr., W/M, DOB 11/13/33, a worker at Bethlehem Steel and he resided at 5605 O'Donnell Street, Baltimore, Maryland. Mr. Allen received injuries to his buttocks and trunk of body and was transported to the Shock Trauma Unit, University Hospital where he was pronounced dead at 1:17 a.m., May 11, 1979. On May 11 and 12, 1979, at Sparrows Point, Maryland, I participated in a bomb scene search and a search of the 428 aforementioned 1977 Dodge truck. Items of evidence were packaged and submitted to the ATF Laboratory at Rockville, Maryland, for examination. On May 17, 1979, Mr. Ron Peimer of the ATF Explosive Laboratory notified your affiant that taggants (plastic chips that are manufactured in pigmented layers providing a combination/permutation coding to identify explosive material) were found in the evidence that was collected and submitted under this investigation. Mr. Peimer said that he determined by these taggants that the explosive used in this bombing was Tovex 220; date shift code EDE02A0146, in 8" x 1 1/4" sticks. Also identified in the evidence submitted was the end of a Dupont blasting cap. On May 18, 1979, Special Agent Steven Pirotte, ATF, advised your affiant that he checked the acquisition and disposition records of Jenkins Explosives, 109 N. Delaware Street, Martinsburg, West Virginia, a federally licensed explosives dealer, license number 4WV0022609-0047. Agent Pirotte advised your affiant that on March 10, 1979, a person identifying himself as James L. McFillin purchased two sticks of Tovex 220, 1 1/4" x 8", date shift code EDE02AO146, a substance classified as a high explosive, and two Dupont electric blasting caps with 8-10' leg wires having no time delay. James McFillin in completing ATF Form 4721 as required, gave his date of birth as 11/21/22, and his address as 102 Legion Street, Martinsburg, West Virginia. James L. McFillin displayed a West Virginia driver's license hearing identification number A388223, but did not display a federal explosive license or permit which would have allowed him to transport explosive materials in interstate commerce. Agent Pirotte further advised that he showed Lawrence Jenkins a photograph of James McFillin and Mr. Jenkins identified the person in the photograph as that of the person purchasing the Tovex 220 and blasting caps. Agent Pirotte advised your affiant that Mr. Jenkins was told by James McFillin that the 429 purpose for the Tovex 220 was to blow a stump on his sister's property in Inwood, West Virginia. Mr. Jenkins, according to Agent Pirotte observed James McFillin place the Tovex 220 and blasting caps which were enclosed in a paper bag, behind the driver's seat of his car. Agent Pirotte advised that Mr. Jenkins recalled the vehicle being green in color. On May 19, 1979, your affiant interviewed James L. McFillin. Subsequent to being advised of his right to remain silent and right to advice of counsel pursuant to ATF Form 3200.4, James McFillin acknowledged the following: On March 10, 1979, that he transported the Tovex from Jenkins Explosives, Martinsburg, West Virginia, to Baltimore, Maryland, in his 1971 Ford, green in color; that he had the Tovex in the trunk of his vehicle for at least two or three weeks in Baltimore, Maryland, until he placed it in his garage located behind his residence 5611 O'Donnell Street, Baltimore, Maryland; that he has been a resident of Maryland for twenty years; that he only purchased one blasting cap but did purchase two sticks or Tovex; that he had not used the said Tovex or blasting caps and that they were still stored in his garage. On May 19, 1979, your affiant received from James McFillin consent to search his garage located to the rear of his residence at 5611 O'Donnell Street, Baltimore, Maryland. No Tovex or any other type of explosive or blasting cap could be found. On May 19, 1979, James L. McFillin also stated that he had worked an Nate Allen Sr.'s Dodge truck before. He said that he had worked on the wires under the truck in the rear. He also said that what was wrong with the wires was that when you pushed on the brakes, the signal light would come on. McFillin said that he had to cut into the wiring system of the truck to try to fix the problem. He also said that he would test the wires to see if they were hot by slicing through the 430 insulation to the bare wire and holding his knife to the wires at the bared spot. James L. McFillin also said that the explosive dealer gave him a pamphlet, on how to wire and detonate the explosives. He further said that the explosive dealer told him to wire the explosives, you punch a hole in the dynamite with a stick and insert the blasting cap in the dynamite and run the wires out and attach the end of the wires to a car battery. James L. McFillin also said that if you put both sticks of dynamite together, they would both go off with one blasting cap. On May 21, 1979, Special Agent Gerard Rudden, ATF, advised your affiant that he checked with the bureau of ATF Licensing Section, and was informed that James L. McFillin has never been registered as a federally licensed explosive dealer on permittee. It is the personal knowledge of your affiant that the State of Maryland has not enacted legislation permitting a resident of Maryland or any other State to purchase explosive material outside of Maryland and transport them into Maryland for use. On May 22, 1979, Special Agent Rudden, ATF, advised your affiant that he obtained and executed a U.S. Search Warrant an a 1971 Ford, green in color, Maryland license GBW 918, registered to James L. McFillin, 5611 O'Donnell Street, Baltimore, Maryland. Items of evidence were packaged and submitted to the ATF Laboratory at Rockville, Maryland, for examination. Information obtained by your affiant from interviews conducted by ATF Special Agents of relatives and neighbors of James L. McFillin indicate that on numerous occasions James L. McFillin had accused Nathan Allen, Sr. and Sandra McFillin of having an affair. 431 On May 23, 1979, Special Agent Edward Wetterman, ATF, advised your affiant that Carolyn S. McFillin, daughter of James L. McFillin, stated that within the last three months James L. McFillin accused Nathan Allen, Sr. (deceased) of sleeping with her mother, Sandra McFillin. She also stated that about twelve years ago her father, James L. McFillin, pointed a shotgun at her mother, Sandra McFillin, and Nathan Allen, Sr. (deceased) and accused the two of them of fooling around and her father said he was going to blow their brains out and make the other watch. On May 25, 1979, Mr. Ron Peimer of the ATF Explosive Laboratory notified your affiant that the blue colored wires removed from the trunk of the aforementioned 1971 green Ford, registered to James L. McFillin, were Dupont leg wires (leg wires being the wires attached to electric blasting caps). On May 25, 1979, your affiant received a copy of the examination record of Nathan Allen, 5605 O'Donnell Street, Baltimore, Maryland, by the State of Maryland, Department of Post Mortem Examiners. In this report Virginia L. Dolan, MD, Assistant Medical Examiner, gave in her opinion: in view of the history and finding at autopsy and scene examination, the death of Nathan Allen, a 45 year old white male, is attributed to blast injury of the posterior trunk, with multiple abdominal vascular and visceral injuries. The manner of death is homicide. an May 30, 1979, your affiant was notified by Kenneth Snow of the ATF Explosive Laboratory that the piece of black wire found in the trunk of James L. McFillin's 1971 Ford, Maryland license GBW 918, was the same type, strand count and type of insulation as the black wire previously submitted that was attached in the deceased's 1977 Dodge truck wiring system and was installed as an indicator for where the electric blasting 432 cap leg wire were to be attached. Dupont leg wires were found attached to this black wire. On May 31, 1979, your affiant received a certified copy from the State of Maryland, Motor Vehicle Administration of title record number 6415303, 1977 Dodge truck, serial number D14A37SO56767, manufacturer's statement of origin to motor vehicle. In the statement it shows that on 10/28/76 the aforementioned 1977 Dodge truck was transported from Chrysler Corporation, Detroit, Michigan, to Larry's Dodge Inc., 9043 Liberty Road, Randallstown, Maryland. On June 15, 1979, your affiant received a report of examination from the ATF Laboratory, Rockville, Maryland, signed by Gideon Epstein. This report stated that the comparisons made between the known writing of James L. McFillin and the questioned writing on the Federal Explosives Delivery Record, Form 4721, in the name of James L. McFillin dated 3/10/79 indicated that James L. McFillin made the questioned signature on the federal Explosive Delivery Record, Form 4721, dated 3/10/79. On June 14, 1979, Mr. Carl Bender, Chrysler Corporation, Detroit, Michigan, an electrical engineer, advised your affiant that he examined the aforementioned 1977 Dodge truck, Maryland license N36099. Mr. Bender's examination revealed that the truck wire to which the leg wires of the explosives were attached conducts sufficient electricity to detonate an electric blasting cap when the left turn signal is depressed after ignition, when the emergency blinkers are engaged, and when the brake is engaged with or without ignition. Mr. Bender also said that based on his expertise opinion the person who set the bomb or at least rigged the wiring harness must have been familiar with this type of truck wiring system. On June 15, 1979 your affiant interviewed Sandra McFillin. 433 At the interview Mrs. McFillin stated that on the morning of May 5, 1979, herself and Nathan Allen Sr. (deceased) were sitting on the steps of 5611 O'Donnell Street, Baltimore, Maryland, when her husband James L. McFillin, started calling her a m-f-er (mother fucker), a whore and a slut. She also said that when this occurred, Nathan Allen, Sr. went home. Mrs. McFillin also said that her husband stated that the only reason why he (Nathan Allen, Sr.) comes up to the house is to see her (Sandra McFillin), not him (James L. McFillin). She further said that she then went into the house and when her husband came in she told him that as soon as the kids got out of school she was leaving him (James L. McFillin). Mrs. McFillin also said that in recalling the activities of may 10, 1979, that at approximately 2:55 p.m. she returned from picking up the kids from school and parked in the driveway, front end first, and then gave the keys to her husband (James L. McFillin). Mrs. McFillin further stated that at approximately 4:55 p.m. her husband said he didn't want to eat dinner and walked out the back door. She further said that a couple of minutes later she heard the car start and saw her husband drive the car out around the back. Mrs. McFillin also said that she did not see her husband again until 6:00 p.m. when he came into the house, walked around the kitchen table, and then went down to Nathan Allen, Sr., house to call his brother, Robert McFillin. Mrs. McFillin then said that her husband returned to the house at approximately 6:05 p.m. and said that he (James L. McFillin) was going to West Virginia with Bob McFillin and asked her to pack the car. Mrs. McFillin said that this was the first time her husband ever mentioned anything about going to West Virginia. She further said that when she went out to pack the auto, it was parked in the driveway trunk end first. She further said that at appro- 434 ximately 1:20 p.m. her husband and their son, James (Bim) McFillin left to pick up Robert McFillin, Little Bob (her son) and then they were to proceed to West Virginia. Based on the foregoing statement of facts, I have reason to believe that James L. McFillin violated Title 18 USC Chapter 40 Section 844(i), 842(a)(3)(A). ----------------------- Daniel P. Boch Special Agent, ATF Subscribed and sworn to before me this 18th day of June, 1979 ___________________________(signed by Fred H. Snalkin) United States Magistrate 435 For your information, the Sparrows Point Police Department had the primary local jurisdiction. They assigned one Detective Sergeant to work with ATF on this investigation. The Baltimore Police Department Bomb Squad assigned two investigators to this case to work with ATF. ATF had 20 men assigned and all three agencies worked the case jointly. Since the taggants identified the specific explosive, its manufacturer and the various locations of distribution, ATF was able to save hundreds of investigative man-hours by focusing their attention on one particular explosive manufactured on a specific date. without this lead it may not have been possible to obtain the necessary evidence for the arrest and indictment. QUESTION 15 With regard to your bureau's proposal to insert tags in explosives and in smokeless and black powder, are you aware of the demonstrations sponsored by Senator Stevens, in which laymen removed all tags from dynamite within minutes, and the dynamite was subsequently exploded? Following that explosion, did not some of your agents sneak out to the area of the demonstration, after dark, in attempt to locate taggants? Were they not in fact unsuccessful? Would not this demonstrate that this bureau proposal would in fact be easily evaded by real criminals? Did not bureau witnesses inform a congressional committee shortly before that the removal of tags could not be accomplished and that the explosive could not be subsequently demonstrated? RESPONSE The question is based on the promise that criminals can easily remove taggants from explosives and thereby evade the tagging program. Support for this statement is the demonstration sponsored by Senator Stevens and conducted by the Institute of Makers of Explosives (IME) at which it was reported laymen easily removed all taggants from dynamite and subsequently exploded the dynamite. It is not clear that a sufficient number of identification taggants can be extracted from explosives to successfully avoid taggant recovery following detonation or that taggant extraction would even be attempted by the average bomber. The effectiveness of any attempt to extract the taggants is dependent on several elements, including the ability, knowledge, patience, and dedication of the extractor, the particular explosives chosen, and the means of extraction. 436 Our statements before Congress concerning the removal of taggants from explosives have been based on the best information available to us at the time. A series of identification taggant extraction tests was conducted by The Aerospace Corporation under contract to ATF. These tests showed that a large percentage, but by no means all, of the taggants could be extracted by skilled technicians, using mechanical means, from some explosives. In some cases, the taggant extraction did have a severe effect on the reliability of the explosives, with four of the eight samples failing to detonate properly following the attempted extraction. Attached is a technical note which was included in Dr. Robert Moler's testimony of May 7, 1979, before the Senate Governmental Affairs Committee, giving more detail on the Aerospace tests. In answer to specific questions, two Aerospace personnel and one person from ATF did go to the range after dark. It is easier to spot the taggants in the dark. However, they went with the permission of and were accompanied by the head of the Metropolitan Police Department Bomb Squad. These people have worked together for many years, and they were naturally and professionally curious. They found no taggants. In a real crime, the search would have been much more thorough. This test does not mean that the taggants could easily be removed by criminals. ATF and Aerospace have planned for a long time to compensate for the case of removal in dry, powdery explosive materials. The explosive, we understand, was a Hercules Red HA, a dry, powdery permissible dynamite. In the black and smokeless powders from which the taggants can be removed because they are dry and powdery, we plan to use 50% magnetic taggants and 50% nonmagnetic. Furthermore, ATF is funding research on materials that are non-magnetic until subjected to the shock and heat of the explosion. We do not believe the criminal will attempt to remove the taggants. A small percentage might, but all of our tests show it is a long, hard job, particularly from "sticky'' explosives. Based on our experience in tracing firearms, it appears the criminal will not bother. Criminals can remove the serial numbers from firearms, yet ATF traces about 60,000 a year by means of the serial number. A few criminals attempt to grind off the serial number, but even in those cases they rarely complete the job and we are able to recover the serial number. 437 It is unfortunate that ATF personnel were not permitted to participate in the demonstration sponsored by Senator Stevens. The permission of the Institute of Makers of Explosives (IME) for ATF to participate could have led to a demonstration conducted under proper conditions, with scientific controls, and yielding a meaningful result. Rather, the IME sought to preclude ATF's participation. (Furthermore, at the request of Senator Javits' office, ATF had previously arranged just such a scientifically controlled demonstration with the participation of Mr. David Gleason, president of IME. The day before the scheduled event we were informed that Mr. Gleason was taking part in a demonstration for Senator Stevens and had no intention of participating in ATF's demon- stration.) As a consequence, we are all faced with a great deal of misleading and confusing information regarding the issue of taggant extraction. ATF is willing to participate in any tests necessary to establish the facts. 438 Mechanical Extraction of 3M Taggants from Packaged, Cap-Sensitive Explosives A Technical Note by Gary Fuller The Aerospace Corporation INTRODUCTION A comprehensive investigation was conducted to provide answers to the following questions: ù How difficult is the removal of standard 3M taggants from packaged, cap-sensitive explosives, i.e., dynamites, water gels/slurries and emulsions? ù Can a serious attempt at tag removal be reliably described as complete? ù What are the effects of tag removal on the cap sensitivity/detonability of the explosive? A team of six investigators performed the analysis under the direction of Aerospace. In addition, two public law enforcement agencies provided valuable contributions to the effort. DISCUSSION Eleven different products were examined. See Table 1. These covered all general types of packaged, cap-sensitive explosives, including gelatinous dynamites, semi-gels, ammonium dynamites, granular dynamites, permissible and non-permissible slurries/water- gels, and an emulsion. The product consistencies ranged from thick and sticky through smooth and creamy to dry and powdery. The materials were made by Atlas, duPont, Hercules and Independent, the only companies who have manufactured tagged explosives in support of the current pilot testing program directed by Aerospace. Referring to Table 1, all materials except Item 3 were examined at the facilities of Rollins and Associates in Rolla, Missouri. The Powderdyn was studied separately by the Explosives Control Unit, Louisiana State Police, and at the San Mateo (California) Sheriffs Department Laboratory. The procedure generally followed throughout the investigation is contained in Attachment One. RESULTS Referring to Table 1, the results for each product tested are as follows: Item 1, Power primer. Three 1 x 8 sticks were used, 200 grams each. Tags were removed individually with tweezers and needles. Tag recovery figures were roughly normal. Detonation was normal after repacking. 439 [Page 439 has Table 1 on it, and was not very practical to reproduce.] 440 Item 2, Unigel. Three 2 x 16 sticks were blended by hand, then a 227 gram sample was drawn. A two-hour survey effort was completed, and 520 tags removed. Based on this, an estimate of 21 hours per pound was made for maximum taggant removal. No detonation was performed and no control sample was slurried. Item 3, Powderdyn. This investigation was done in two sites, one being the Department of Public Safety, Louisiana State Police in Baton Rouge. Three 2 1/2 x 16 sticks were blended and one-third (1650 gms.) taken as a sample. Twenty man hours were spent in an attempt to remove the tags after which it was concluded that "no appreciable amount of taggants could be removed." (See Attachment 2). The second test site was the San Mateo Sheriffs' Department Laboratory in Redwood City, California. Here, a different approach was taken: using the laboratory equipment available and the chemical expertise of the staff, small samples (20 grams) of the tagged explosives were dissolved in acetone and at least some of the tags were removed by sweeping the slurry with a magnet. The acetone was then evaporated off and the material packed into a film canister and successfully shot in a Bichel Gauge. No tags were recovered in the post-blast residue. It should be noted that earlier tests by other agencies involving 3M-tagged detonations in a Bichel Gauge resulted in complete tag destruction. This is due to the extreme heating conditions produced in the small test cavity and is recognized as a totally artificial and irrelevant situation.) A similar exercise is currently being conducted using larger samples of material. No conclusion can yet be formed about the efficiency of tag removal using this method. The Powerdyn data in Table 1 includes only the Louisiana investigation, not that of San Mateo. Item 4, 60% extra. Two 2 x 8 sticks were used here, with no blending (Step 1.0 of Attachment 2). There was a large difference in tag content between the two sticks, evidently due to manufacturing inhomogeneities; 291 tags were removed by UV light and magnet from the stick which was later detonated and 2000 were removed from the control sample which was later slurried. The control sample was approximately normal, while the detonated stick was about 10% of normal. The post extraction detonation was good. Item 5, 'E' Powder. Here, a single 1 1/2 x 12 stick was cut in half. Tag content appeared roughly normal. The detonation was a failure (partial reaction). it should be noted that this material is over 2 years old. Item 6, Red HA. Three 1 x 3 sticks were used. The tag content was low, about 10% of normal. The detonation failed: low order, 50% left. Item 7, Collier C. Three 1 x 8 sticks were used. Tag content roughly normal. Detonation was good. Item 8, Tovex 300. Three 1 x 8 sticks were used. Tag content was somewhat low, near normal for duPont, based on limited sampling. Detonation was good. Item 9, Gel Coal Al. Three 2 x 16 sticks were blended and 277 gram samples drawn. Tag content again was low for both samples. The control sample was slurried in acetone and alcohol which 441 only partially dissolved tho material. The sample for detonation failed to shoot. Item 10, Gel Power A2. Three 2 1/2 x 16 sticks were blended and a 227 gram sample was drawn. A two-hour survey effort was completed and 407 tags were removed. Based on this, an estimate of 20 hours per pound wan made for maximum taggant removal. No detonation was performed and no control sample was slurried. Item 11, Powermax. Only one 1 x 8 cartridge, weighing 164 grams was available. This was divided into thirds for analysis. The quantity of taggants recovered was low normal. The attempt at detonation was unsuccessful. CONCLUSIONS Based on this investigation, the following conclusions can be made: 1. A large proportion of the tags can be removed from these types of explosives by mechanical means, utilizing magnets, white light and ultra violet light. But even a diligence thorough effort will not result in 100% taggant extraction. The post-blast survival rate, as a fraction of the tags removed prior to detonation, ranges from 1.7% for Item 4 to 11%, for Item 1, considering only those where satisfactory detonation was achieved. 2. The mechanical taggant extraction process has a severe effect on the reliability of the explosives, as measured by their detonability by a No. 8 blasting cap. Four of the eight samples which were detonation tested did not fire properly. POTENTIAL TAGGANT MODIFICATIONS The taggants are removable from the explosive because of the following characteristics: 1. They are visible under UV light. 2. They are visible under white light. 3. They respond to a magnet. A number of modifications can be made which will render these characteristics inaccessible while the explosive is in a pre- detonation condition. 1. The taggants can be surrounded with a layer of polyethylene wax (as pilot test taggants were) which has been opacified by the addition of an appropriate pigment. such as chalk, a common ingredient in explosives, or one of the melamine- alkyd-tinting pigments presently used in the tag core. The polyethylene, as before, would be ablated away in the blast and the fluorescent layer exposed. 2. The polyethylene opacifier can be selected to match the color of the explosive itself, so that it is not conspicuous in white light. 3. A magnet-insensitive taggant can be included to prevent removal by magnets. Under development is a taggant which would become magnet-sensitive only after detonation of the explosive. Investigations along these lines are in process and results are encouraging. 442 An additional approach is to reduce the size of the tags, and thus increase their numbers. Data indicates that a factor of four reduction in size (mass) would probably not-jeopardize survivability and would increase the (encapsulated) tag concentration from 3800 per pound of explosives to over 15,000 per pound. This, coupled with the above techniques would dramatically increase the difficulty of taggant removal. ATTACHMENT ONE TAGGANT EXTRACTION PROCEDURE 1.0 Carefully open, by slitting lengthwise, the wrappings of three cartridges of explosive. Remove the explosives and blend by gentle hand mixing. 2.0 Separate into thirds, calling them A,B,C. Weight each sample. 3.0 Spread material from sample A out in thin layer. 3.1 Examine under white light, noting consistency and any peculiarities. 3.1.1 Remove any tags that are recognizable, counting them in the process. 3.2 Examine the material in a darkened location, using long- wave (366 nn) ultra-violet light. 3.2.1 Remove any tags that are recognizable, counting them in the process. 3.3 Using a samarium-cobalt magnet, wrapped in plastic, sweep through the material and recover any remaining tags, counting them in the process. 3.4 Repack the material into one of the original wrappers, duplicating the original density as far as possible. 4.0 Repeat Section 3.0 using sample B, but do not repack. 5.0 Detonate repacked sample A, using a number 8 cap, in a closed area where near-complete recovery of tags is feasible. Recover the post-blast residue and count the taggants. 6.0 Slurry sample B in water, about one gallon per pound of explosives. Remove the taggants by sweeping through the slurry with a magnet. Count the tags so recovered. 7.0 Repeat Section 6.0 using sample C. Count the taggants so recovered. 8.0 Compile the following data: a. Type of explosive b. Manufacturer c. Date/shift code d. Size of cartridge e. Weight of samples (Sec. 2.0) f. Taggant counts from 3.0 for samples A and B. g. Taggant counts from 5.0, 6.0 and 7.0. h. Date of this operation, location and name of operator. i. Time spend for thorough removal. j. Time required to complete, for two-hour effort. 443 LETTER FROM LT. WILLIAM T. POE OFFICE OF STATE POLICE April 24, 1979 Aero Space Corp. 9555 L'Enfante Plaza S.W. Washington, D.C. 20024 Attention: Gary Fuller Dear Mr. Fuller: In reference to your request concerning the removal of taggants from explosives be advised of the following: Atlas Powderdyn dynamite 2 1/2 x 16 inch sticks were tested as to the possibility of removing taggants from the explosives. Approximately (2 1/2) two and one half days was spent in an attempt to remove taggants from the explosives in question. Both conventional and special magnets were used in the attempted removal process. An ultra violet light was used to locate numerous taggants prior to, during and after the test. Tweezers were used in an attempt to remove the visible taggants. The steps outlined by your recommended recovery process were also utilized, as well as, other techniques. After thoroughly examining all possibilities, it was the conclusion of this office that no appreciable amount of taggants could be removed. I would safely conclude that taggants in these explosives would be very difficult, if not impossible to remove. If this Department can be of further assistance in this or other matters, please don't hesitate to call or write. Sincerely, [signed] William T. Poe, Lt. Supervisor Explosives Control Unit Louisiana State Police 444 QUESTION 16 Also with regard to the tagging proposal do you have any comments on the FBI's public statement that they believe tagging would not present any deterrent to terrorists? Is not tagging simply an example of the bureau's application of its aptitude for making work to a new area? RESPONSE Regarding an FBI public statement that tagging would not be a deterrent to terrorists, the question probably is referring to a letter dated May 14, 1979, to the Chairman of the House Public Works and Transportation Committee in which the FBI stated reservations about the usefulness of identification and detection taggants in their present stage of development. As you are aware, our research and development work on the Explosives Tagging Program is an ongoing activity and has not been completed. Although the technology in both identification and detection tagging has been developed, we must work to refine and perfect the final product before a program can be implemented. Safety and compatibility tests have been completed on identification taggants in dynamite, water gels, slurries, black powder, and permissible explosives. We are now in various stages of studying the identification tagging of cast boosters, smokeless powder, blasting caps, and detonating cord. In detection tagging, we have isolated five satisfactory candidate vapors from hundreds of potential chemical materials, and we have learned how to package them in microscopic spheres. We are now beginning safety and compatibility testing of these vapor taggants in explosives, similar to those run on identification taggants. The FBI letter also criticized the tagging legislation because black and smokeless powders were excluded from the program. Due to apparent misunderstandings caused by its statement, the FBI wrote a second letter to the Chairman of the House Public Works and Transportation Committee dated May 23, 1979, stating that tagging would be beneficial to law enforcement. The FBI also forwarded a letter to Senators Ribicoff and Javits of the Senate Governmental Affairs Committee dated June 29, 1979, regretting that any impression might have been given that the FBI does not support tagging. For the record, the FBI again stated its belief that tagging would be beneficial to law enforcement. 445 In addition, we are attaching a copy of a letter forwarded to Senators Ribicoff and Javits, dated July 23, 1979, from Philip B. Heymann, Assistant Attorney General, Criminal Division, clarifying the position of the Department of Justice on explosives tagging and reiterating support of tagging legislation in Congress. 446 LETTER FROM PHILIP B. HEYMANN Dear Senators Ribicoff and Javits: This is in response to your letter of June 21, 1979, to the Attorney General requesting clarification of a position taken by the Federal Bureau of Investigation on the effectiveness of explosive taggants. In a letter dated May 14, 1979, to the House Committee on Public Works and Transportation, FBI Director Webster expressed the view that the tagging program will not be a significant deterrent to terrorist bombers because they might construct bombs from materials other than those to which taggants have been added. In a subsequent letter on the same subject, Director Webster stated chat "this Bureau regards the concept of the tagging program to be beneficial to law enforcement in the identification and tracing of explosive devices when technology permits." He has also expressed support of the tagging program in a letter to you dated June 29, 1979. So that there will be no misunderstanding on the position of the Department of Justice on the subject of explosive taggants, this Department regards them as an effective and important law enforcement tool. We strongly support section nine of H.R. 2441 and feel that the discretion given to the Secretary of the Treasury under the bill's proposed 18 U.S.C. 842(1)(9) to extend the time period in which taggants must be included in particular explosives provides for sufficient flexibility in this area. 18 U.S.C. 842(1)(9) would allow the Secretary to extend the time period in which a taggant must be added to explosives if the taggant is unavailable in sufficient quantities for commercial purposes, will impair the quality of the explosives, is unsafe, or would harm the environment. This discretion given to the Secretary will, we feel, overcome any problem of contamination or quality control that might presently exist with respect to the state-of-the art of tagging particular explosives. Our support of taggants is consistent with our position on the provisions of H.R. 1834 and H,R. 2441 dealing with taggants as set forth by Deputy Assistant Attorney General Mary C. Lawton in her testimony on these bills on March 1, 1979, before the Subcommittee on Aviation of the House Committee on Public Works and Transportation. The Department has also supported legislation providing for the use of explosive taggants in the past Congress. We would also reiterate our position on the exclusion of black and smokeless powder from those explosives that will have to contain taggants. We hope that, when the Senate considers taggant legislation, taggants will be requires for these materials as well as for other types of explosives. The authority given the Treasury Department to determine if a taggant for a particular type of explosive is unsafe, would impair its quality or is not available in sufficient quantities for commercial purposes should provide enough safeguards against the premature inclusion of taggants in black or smokeless powder. Sincerely, [signed] PHILIP B. HEYMANN Assistant Attorney General Criminal Division 447 QUESTION 17 With regard to the Bureau's involvement in tobacco smuggling, am I correct that the Bureau has sought and obtained Congressional approval of its involvement in these violations? RESPONSE The 95th Congress passed Public Law 95-575, an act to amend Title 18 of the United States Code to eliminate racketeering in the sale and distribution of cigarettes and for other purposes. The President signed this law November 2, 1978. This law gave enforcement responsibility to the Secretary of the Treasury who delegated this responsibility to the Bureau of Alcohol, Tobacco and Firearms by Treasury order #120-1 on December 5, 1978 (attached). Supplemental appropriations were approved by Congress in June for enforcement of this law for the remainder of FY 1979. 448 DEPARTMENT OF THE TREASURY TREASURY DEPARTMENT ORDER NO. 120-1 Trafficking in Contraband Cigarettes By virtue of the Secretary of the Treasury, including the authority of Reorganization Plan No. 26 of 1950, it is ordered that: 1. The Director of the Bureau of Alcohol, Tobacco and Firearms is delegated the authority to administer and enforce the provisions of 18 U.S.C. Chapter 114 (relating to trafficking in contraband cigarettes and the provision of the Act of August 9, 1939 (49 U.S.C. Chapter 11), insofar as that Act involves matters relating to violations of 18 U.S.C. Chapter 114. 2. The Director of the Bureau of Alcohol, Tobacco and Firearms is hereby authorized to prescribe all needful rules and regulations for enforcement of the laws specified in paragraph one, subject to approval by the Secretary or his delegate. Robert Carswell Acting Secretary of the Treasury Date: December 5, 1978 449 QUESTION 19 You indicate elsewhere that the Bureau cannot focus on stolen guns, since these are taken in burglaries and "BATF, for the record, has no jurisdiction over the crime of burglary." What jurisdiction does the Bureau have over the crime of arson? RESPONSE In July, 1970, during hearings before Subcommittee Number 5 of the Committee on the Judiciary House of Representatives in re H.R. 17154, H.R. 16699, H.R. 1873 and Related Proposals to amend Title 18 of the United States Code to provide for better control of interstate traffic in explosives, proceedings which generated the legislation discussed below, the Honorable Chalmers P. Wylie, a sponsor of the legislation expressly stated that the intention cd "... The bill would amend section 837 of Title 18 U.S.C. pertaining to the illegal use or possession and threats or false information concerning attempts to damage cm destroy real or personal property by fire or explosives". Mr. Wylie further expressed Congressional intent that "...the term 'explosive' is defined in language that covers every conceivable explosive material, from simple black gun powder to detonators to sophisticated incendiary devices.'' Additionally, the subcommittee as a whole, in presenting the comparative analysis of Congressional Findings state that "...(the) Definition of 'explosives' ...includes 'any chemical compound...that contains ... ingredients in such proportions, quantities or packing that ignition by fire...or by detonation ... may cause an explosion'. This would include any highly flammable substance such as gasoline, cleaning fluids and many other commercial solvents...". On October 15, 1970, by an act of the Congress through Title XI of Public Law 91-452, which has also come to be known as the Explosives Control Act of 1970, the Secretary of the Treasury was authorized to regulate and otherwise control the use of explosives, including the investigation of criminal misuse of explosive materials. This statute includes in its definition of explosives: "...incendiary devices and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion". Additionally, this enactment provides a felony violation for any person using an explosive to damage or attempt to damage any building, vehicle, or real or personal property used in interstate or foreign commerce or in any activity 450 affecting interstate or foreign commerce. Further, the law specifically authorizes the Secretary to inspect the site of any fire where "explosive materials" were involved. Under the provision of the statute, as enacted, the Secretary has delegated his authority for administration of the law to the Bureau of Alcohol, Tobacco and Firearms (ATF) . These Congressional hearings further elaborated on the definition of incendiary device and stated that it "...means any article, substance, or device or any combination of articles, substances, or devices commonly used for, or having capacity for use in the generation or propagation of fire in combustible material". (Emphasis added) Perhaps of greatest significance, the subcommittee "added a new provision...covering malicious damage or destruction by means of an explosive of any property used for business purposes by a person engaged in commerce or any activity affecting commerce," and expressed its intention that "...the term 'affecting commerce' embraces 'the fullest jurisdictional breadth constitutionally permissible under the commerce clause'...(and) ... would cover damage by explosives to substantially any business property." In compliance with Congressional mandates reflected in the law (Chapter 40, Title 13 U.S.C.) and the legislative history which led to its construction, ATF investigates and refers to appropriate prosecutive authorities incidents involving arson fires affecting or involving interstate or foreign commerce in which incendiaries or explosive materials, within their statutory definitions, were used to maliciously damage or attempt to damage any building, vehicle, or real or personal property. Several court cases have upheld application of the explosives statutes and certain arsons started with accelerants. Additionally, ATF has received approval from the Federal Law Enforcement Assistance Administration whereby LEAA will transfer $105,030 to ATF to train State and local arson investigators. There will be 18 one-week arson investigation training courses to be held at various cities throughout the United States. Emphasis in these training sessions will be placed upon post arson investigation as it relates to arson-for-profit schemes. QUESTION 20 If the response is that gasoline is an explosive, do you plan to tag gasoline? 451 RESPONSE Obviously we have no plans to tag gasoline. Due to its massive distribution system, tagging gasoline would not help law enforcement efforts if it were used for criminal purposes. What we have proposed to tag are those manufactured explosives and explosives materials which are sometimes used for criminal purposes and which current controls would permit tracability which would be helpful in investigations of criminal acts. QUESTION 21 Does not the FBI have primary jurisdiction over arson and bombing cases to the extent that there is any Federal jurisdiction at all? RESPONSE No, the FBI does not have primary jurisdiction over all bombings and arson cases. In 1978, ATF investigated 81 percent of all Federally investigated bombings in the United States. In 1970, when enacting Title XI, Public Law 91-452 (Chapter 40, Title 18 USC), the primary Federal statute dealing with explosives violations, Congress vested the Secretary of the Treasury with the authority to administer, regulate and enforce its provisions. As permitted under the statute, the Secretary delegated his authority to ATF. The FBI has jurisdiction over all offenses occurring on, or involving U.S. Government property. Correspondingly, as the statute cited above provides the FBI with concurrent jurisdiction in certain sections regarding criminal misuse of explosives, ATF and the FBI have executed a letter of agreement which provides the FBI with jurisdiction, as necessary, to investigate explosive violations committed on or against government property; such violations as committed on a college or university property and such violations as committed by known terrorist organizations. ATF maintains primary jurisdiction to investigate explosive or bombing incidents involving interstate commerce and all violations relating to the regulation and sale of explosives. With regard to arson violations, with the exception of Title 18, Chapter 2, sections 31, 32 and 33 and Chapter 5, section 81, United States Code, which deal with destruction of aircraft and motor vehicles; and arson within special maritime and territorial jurisdiction, there is no general Federal arson statute. This is not to say, however, that the government is ignoring the dangerous. and costly arson-for-profit problem which currently exists throughout the United States. Chapter 40, Title 18 USC, over which ATF has jurisdiction (cited above) establishes felony violations for the criminal misuse of incendiary and/or explosive materials to cause, or attempt to cause, the destruction by fire, of property 452 involved in or affecting interstate or foreign commerce. QUESTION 22 You cite a case of theft of guns from an interstate carrier. Were any other law enforcement agencies involved in the perfection of that case? What was their contribution? RESPONSE The investigation involved the theft of 296 rifles and shotguns from an interstate carrier in New Jersey. At the time of the theft in December of 1978, the Federal Bureau of Investigation (FBI) and the New Jersey State Police were involved; however, their efforts were not successful. In January of 1978, an ATF Special Agent in New York received information on this matter from a confidential informer and an undercover investigation was initiated. This investigation resulted in the recovery of 171 of the stolen firearms and the arrest of two defendants. one other subject, who was a former employee of the carrier, has been charged in this case and is currently a fugitive. No other law enforcement agencies were involved in the perfection of this case. QUESTION 23 I take it that case is also presently in litigation. RESPONSE Yes, it is currently awaiting trial in New York. QUESTION 24 "You speak of a second case in New York involving firearms silencers. How many other enforcement agencies were involved in the perfection of that case? What was their contribution compared to that of BATF?" RESPONSE The case you speak of involved the unlawful distribution of firearms and explosives to the criminal element by members of organized crime. We first wish to point out that this case, which resulted in the apprehension of 22 individuals and the conviction of twenty of them, was based solely on ATF undercover activities lasting approximately one year in duration. There were no other investi- gative agencies involved in the perfection of this case. To the contrary, we wish to note that ATF undercover agents obtained 453 evidence during their operations of various additional criminal activities outside of our jurisdiction. we did not seek to publicize the fact that during this investigation: 1. An ATF undercover agent was offered $24,800 worth of stolen American Express checks and after initial negotiation introduced an FBI agent to the violators. 2. An ATF undercover agent was offered stolen paintings valued between $55,000 and $80,000 and after initial negotiation introduced an FBI agent to the violators. 3. An ATF undercover agent was offered 480 stolen refrigerators valued at approximately $48,000. These refrigerators were stored in a stolen semitractor rig valued at about $50,000. After negotiating for the purchase, the ATF undercover agent introduced an FBI agent into the investigation. 4. An ATF undercover agent was offered $390,000 worth of stolen securities. After initial negotiation, ATF introduced an FBI agent to the violators. 5. An ATF undercover agent was offered $5,000,000 worth of stolen securities. ATF subsequently introduced an FBI agent into the investigation after initial negotiation. In all of these instances, ATF developed the investiga- tive leads through undercover penetration of underworld figures and, after initial negotiation, introduced agents of the agency having primary jurisdiction. In addition to the 22 individuals we apprehended, the FBI has 10 persons as prospective defendants based upon our (ATF's) undercover activities. Also, we relayed other information developed from the investigation to the U.S. Drug Enforcement Administration, the FBI, the New York Police Department, the Bergen County New Jersey Prosecutors Office, the New Jersey State Police and the Royal Canadian Mounted Police. During the undercover activities leading to the arrest of the 22 persons for various GCA violations agents purchased 51 handguns (some stolen), 3 rifles and shotguns, 19 sawed-off shotguns, 5 sawed-off rifles, 2 machineguns, 13 silencers and 1-1/4 pounds of C-4 military explosives from organized crime figures. Fifty-one additional silencers and another sawed-off shotgun were seized at the time the arrests were perfected; all without incident. The origin of this entire project was based upon an investigation conducted solely by ATF. 454 QUESTION 25 Is it not a fact that you have indicated that the Bureau does not desire to produce documentation, or to discuss the allegations of Frank Chismar that he, who has never owned a firearm, was pistol whipped into unconsciousness by BATF agents on the New Parkway last year? Is the reason for this that the case is in litigation? RESPONSE Independent investigations into the alleged incident of April 13, 1978, were conducted by the FBI, the Civil Rights Division (criminal section), Department of Justice, the Westchester County District Attorney's Office, ATF office of Inspection and the New York City Police Department. The Civil Rights Division presented evidence obtained during the course of its investigation to a Federal grand jury. No action against the agents was taken by the grand jury and no further action is going to be taken by the Department of Justice. In a letter dated July 13, 1979, the Westchester County District Attorney stated, "We find that there is insufficient evidence to warrant presentation of the matter to a grand jury. Our inquiry is closed." In that there is an internal investigation continuing and civil litigation pending by Mr. Chismar, et al against the agents, and, also, by the agents against Mr. Chismar, et al, any further comment would be improper. QUESTION 26 Are you prepared to discuss the San Jose Gun Show incident last year, in which several hundred persons claimed they were falsely imprisoned by your agents for a period of several hours while the agents conducted a (sic) "educational mission"? RESPONSE Civil litigation is pending in the U. S. District Court of the Northern Judicial District of California. The U. S. Attorney is handling this litigation and it would not be appropriate for me to comment on any of the facts in this case. QUESTION 28 You state in "some very few cases" agents have used poor judgement. What type of cases did you have in mind? RESPONSE The type cases referred to are a few of the straw man cases and the occasional situation where an abandonment is a better course of action than arrest and seizure. 455 As previously stated, prior to the initiation of any investigation against Federally licensed firearms dealers, I have required that all available information be submitted to my office for review and approval. I have authorized no "straw purchase" investigations. While the courts have consistently upheld this technique, this Bureau will not utilize this technique except in those cases where we have reliable information that a dealer is himself conspiring with others to distribute firearms to prohibited persons by using a straw man" as a conduit. I might add that we have prepared an Industry Circular for issuance to all licensed dealers alerting them to the legal difficulties of such activity. For a dealer to knowingly assist a prohibited person in the acquisition of a firearm through a third party could subject the dealer to charges of conspiracy to violate the Gun Control Act and aiding and abetting a prohibited person in the acquisition of a firearm. Relative to the term abandonment, instructions were issued to special agents on November 28, 1977 which provide that in the absence of criminal intent, there are options in the form of administrative remedy available in addressing situations where a person possesses a firearm not registered as required by law. Special agents are required to advise such persons of these options prior to taking action. These options are voluntary abandonment, modification of the firearm to remove it from the NFA classification, or, donation of the firearm to a Federal, State or local government agency, museum or historical society. QUESTION 29 You state that in some cases investigative approaches have been used which cast doubt on the motives of the Bureau of Alcohol, Tobacco and Firearms. Precisely, what are you referring to here? What cases are you referring to? How many of them are there? RESPONSE I was referring to the cases that have been brought to the attention of this committee during the course of this hearing. QUESTION 30 You state that you have ordered reviews of these cases. Who has been ordered to undertake the review? What reports or results are they expected to provide? what will you do once they are identified? 456 RESPONSE Where illegal or unethical conduct has been alleged, a review is being conducted by the office of the Assistant Director of Inspection; where the allegations are related to investigative approaches, a review is being conducted by the office of the Assistant Director for Criminal Enforcement. In either case, I will personally oversee the review and take appropriate action to discipline an employee if warranted or to change policy where appropriate. QUESTION 31 You state that criminals may purchase guns at gun shows. What percent of firearms used in crime were purchased by the criminal at a gun show? (if the answer is that this is unknown, then how do you conclude that gun shows are one of "two frequently encountered methods for criminals to obtain weapons"?) RESPONSE We are unable to ascertain what percentage of crime guns are purchased by criminals at gun shows. Such instances include, but are not limited to the following: A Browning 9 mm pistol used to murder an armored car guard and which was later used in an armed robbery by members of the Black Panther party was shown to have been purchased at a gun show by a member of the Venceramos, a terrorist group. A major armorer for the Black Liberation Army is known to have purchased at the gun show, the gun used to murder a San Francisco Police Sergeant. Her two room mates were observed purchasing a shotgun at the same gun show two weeks after being arrested for possession of another stolen shotgun. Three of four M-1 carbines (converted to fire automatically) recovered after the Symbionese Liberation Army shoot out in Los Angeles were found to have been purchased at a gun show. Other guns recovered were found to have been sold by an individual known to sell firearms at gun shows. A Smith and Wesson Model 39 found in the possession of a Black Liberation Army member was found to have been sold at a gun show to a member of the Weather Underground. Both persons were also suspected of being members of the Crew World Liberation Front. 457 Two guns used by California Chinese youth gang members in gangland murders were traced to gun shows. The firearm used by Sara Jane Moore in her attempt on the life of former President Gerald Ford was traced to a dealer at a gun show. Our intentions have been predicated wholly on serving the best interests of the public at large by attempting to neutralize such weapons at their point of acquisition rather than at the time of their felonious misuse. QUESTION 32 Same question (as 31) as to having another individual purchasing on behalf of the criminal and then transferring possession. RESPONSE We are unable to accurately ascertain the percentage of crime guns obtained by means of having an individual purchase a firearm on behalf of a prohibited person and then transferring possession to the prohibited person. As we have previously stated, a lack of compliance with the recordkeeping provisions of the GCA on the part of some gun show entrepreneurs has precluded any definitive assessment in this regard. We do know, however, that barring the direct involvement of an informant of an undercover agent in these "straw purchase" transactions, such transactions will go undetected until the weapon is actually used in a homicide, armed robbery or other criminal act. The notorious "Son of Sam" killer in New York City, David Berkowitz, obtained the murder gun through a "straw purchase" transaction in Texas. QUESTION 33 What are the difficulties which you state ATF has encountered in closing down sources of illegal guns .... namely, gun shows and strawman purchases? RESPONSE ATF has never undertaken to "close down" gun shows. Gun shows in and of themselves are not barred by Federal statute and, for the most part, show sponsors exert acceptable levels of commitment to self-policing. Our major problems at these shows are some show participants who when licensed, do not comply with the offpremise sales and/or record keeping provisions of the Act; others, who are unlicensed, are not required to keep records. Such activity circumvents the intent of the law. As a result, prohibited persons or other individuals desiring untraceable firearms for criminal purposes often purchase these 458 firearms at gun shows. I am exploring the possibility of permitting licensed dealers to make legal sales of firearms at gun shows under certain circumstances in an effort to promote better records, increased tracing capability, and the elimination of illegal gun sales. "Straw purchases" transactions present even a greater dilemma to the enforcement officer. In most instances, a "straw purchaser' is selected largely because he or she is not disabled under the Act by virtue of criminal record, age, or some other disqualifying characteristic. On the theory that most dealers do not want to contribute to the criminal use of guns, we are going to pursue an educational program with dealers to point out the legal dangers as well as harmful results from "strawman sales." This will be done through industry circulars, a dealers' newsletter, ATF exhibits at gun shows, special seminars and other means. Of course, if a dealer repeatedly and knowingly provides guns to proscribed persons or for criminal use, we will seek criminal prosecution. QUESTION 35 You state that you have issued instructions within the last few months under which "ATF now directs its emphasis toward interdicting the illegal flow of arms whether intrastate or intrastate (sic)." Does this market (sic) change from its previous policy under which these abuses occurred? RESPONSE The enforcement policies and assignment of resources at ATF are constantly being evaluated to assure optimum operational efficiency. ATF's current enforcement emphasis differs from our previous direction. Resources are now being applied only when an association has been established with a criminal activity. QUESTION 35A If so, what was the previous policy? RESPONSE Prior to the inauguration of the Bureau's emphasis on interdicting the unlawful flow of guns to criminals, the ATF program guidelines for enforcing Federal firearms laws encompassed three major fronts of attack: (1) A concentrated, nationwide effort against unlawful gun possession, acquisition and distribution, including interstate thefts and trafficking in stolen weapons. 459 (2) Undercover penetration of criminal activities to identify offenders, areas involved and locations used, and systems of acquisition/disposition, and to secure evidence via direct agent "buys" -- a technique which obviates the necessity of relying upon informants of questionable reliability or honest citizens who may be subjected to intim- idation and other hazards. (3) Identification of known, active, armed and dangerous criminals and intensive investigation of such individuals, on a priority basis to ensure concentration on the most dangerous individuals worthy of Federal attention, to bring about the conviction of those committing violations of the Federal firearms laws. QUESTION 35B Who promulgated that policy? RESPONSE That direction was promulgated by former Director Rex D. Davis. QUESTION 35C How was it promulgated? RESPONSE The direction was promulgated via an ATF Order circulated to all executives, managers, supervisors, and special agents of the ATF Office of Criminal Enforcement on November 28, 1977. QUESTION 35D What documents exist to show this policy? RESPONSE AFT Order 3310.4 sets forth this direction on pages 1 and 2. QUESTION 36 How do you reconcile your statement that ATF is now emphasizing illegal arms flow "whether intrastate or, interstate" with stolen firearms since "BATF does not have jurisdiction over firearms thefts except those involving interstate commerce?" RESPONSE As stated, ATF now directs its emphasis toward interdicting the illegal flow of arms, whether interstate or intrastate and will utilize all facets of the Gun Control Act as enacted by congress to successfully accomplish this mission, Successful prosecution of any individual for violation of the Gun Control Act as it relates tn "stolen" firearms alone is depen- 460 dent upon a showing that the stolen firearm was transported, shipped, is moving as, is a part of or constitutes interstate or foreign commerce. That interstate nexus, as it relates to the firearm, is not a requirement for successful prosecution in many of the other applicable statutes of the Gun Control Act utilized to interdict the illegal flow of firearms. QUESTION 37 You state that under your new policies, in- vestigations involving licensed dealers and gun shows are pursued only where "there exists a significant connection to criminal activity." Is this a change from previous policy? What was the previous policy and who promulgated it? (If not, then how is there any guarantee that these abuses will not be repeated under the new policy?) RESPONSE The primary difference in current policy and that of my predecessor, Mr. Rex Davis, as it relates to such investigations, is the review process and the level of authority for approval of initiation of such investigations. That authority is now limited to me or my Deputy. As I previously testified, it is my feeling that agent manpower can generally be better used in other types of investigations. The qualifying criteria that I will continue to require prior to authorizing such an investigation, is that the activities of the dealer or gun show participants are significantly connected to criminal activity and the criminal use of guns. QUESTION 40 You indicate that you are reducing emphasis upon gun shows and licensed dealers, that this is at least partially motivated by a desire to seek the most efficient use of agents due to losses of almost 200 BATF positions under the recent budget. Does not this indicate that the budgetary con- straints are a factor in your decision to limit enforcement against gun shows and dealers against whom there is indication of criminal tendencies? RESPONSE The Bureau has never had a policy of applying resources to the investigation of dealers against whom there is no indication of criminal tendencies. Obviously, budget constraints require that we review utilization of available resources to ensure maximum results in reaching our objectives. The objective I consider of top priority is keeping guns out of the hands 461 of criminals and of other persons who would use guns for criminal purposes. Prior to any loss of positions we were assessing redirection of investigative emphasis away from gun shows, and the decision in this regard was unrelated to any specific budget action. There is significant illicit trafficking in illegal and stolen guns and in guns used in illicit, criminal and terrorist activities. I want to get at the major trafficker and reduce or eliminate this traffic. QUESTION 41 You state that some of the criticisms of ATF "have at least partial merit in your opinion." To which criticisms are you referring? What assignments have been given your inspection division in connection with these criticisms.) RESPONSE There is no Federal, State or local law enforcement agency which has not experienced problems resulting from an occasional variance from good judgement on the part of its personnel. ATF is certainly not immune from this. Because this Bureau is under the constant scrutiny of both pro-firearm and anti-firearm groups, such incidents are quickly and widely publicized, often far beyond the degree which one might feel justified by the particular event. This in no way, however, lessens my determination to correct any Bureau policy which might be inadequate, or to take remedial action against any employee who deserves it. The new internal inspection structure, which I have described in response to earlier questions, will give the Bureau the capability to act more quickly and consistently in the event that allegations of misconduct are received from any responsible source. QUESTION 42 With respect to your office of inspection, how long has this existed? Did it exist while the David Moorehead case was pending? Did it exist during the San Jose gun show affair? Did it exist during the Frank Chismar beating? What action has it taken to ensure that those incidents will not be repeated? RESPONSE The Office of Inspection was established in September 1972, and currently includes 24 inspectors and 23 internal auditors who are responsible for ensuring compliance with Headquarters policy, operations reviews, internal audits, and for investigating alleged wrongdoing. I recently requested that the Department conduct a review of 462 our Inspection activities. I have received their report and will be recommending to the Department very shortly a major reorganization of the Inspection services. The principal change will be to establish field offices so I will have in the field internal affairs investigators who can respond immediately to allegations of improper practices or wrongdoing as well as to continually take action to uncover any evidence of wrongdoing. The proposed reorganization will also strengthen capabilities for organization reviews. Inspection conducted an investigation of allegations in the David Moorehead case. This investigation exonerated special agents of any illegal acts or improper conduct. This does not mean that from a management perspective this case should have been pursued as it was. As I testified, it should not have been handled in the manner which it was. The San Jose gun show incident was not investigated by Inspection. The circumstances surrounding the Frank Chismar case are currently being investigated by Inspection. QUESTION 1 What is the amount of ATF resources spent for investigating dealers? RESPONSE During the period beginning October 1, 1977, and ending May 31, 1979 (20 months), ATF conducted 1,126 investigations of the 170,000 plus firearms licensees (.006%) or .6 investigations per 100 licensees. Approximately 20,000 mandays were expended in this effort. Four thousand one hundred and sixty-one investigations were conducted involving individuals engaged in the business without a license during the same period. QUESTION 2 Do you know anything about the raids of dealers in Minnesota last month? RESPONSE During June 1979, ATF concluded investigations directed at 5 individuals engaged the firearms business without being licensed and 1 licensed firearms dealer conducting business in violation of the Gun Control Act of 1968. In view of the fact that these cases have been submitted to the United States attorney for presentation to a Federal grand jury, I 463 feel that any further comment would be inappropriate at this time. However, I will state that the licensed dealer investigation has been monitored by BATF Headquarters staff since its inception and is in compliance with present BATF guidelines concerning licensed dealers. QUESTION 3A Why are people like Mr. Phillips and others like him constantly being entrapped? RESPONSE Mr. Phillips was not entrapped nor is it the policy of ATF to entrap anyone. Prior to the initiation of the investigation of Mr. Phillips, three persons had been convicted in U.S. District Court of unlawfully acquiring 38 firearms from Jaxon's Inc. Evidence developed during the investigation indicated the possible complicity of Mr. Phillips. Later, based on Mr. Phillips' failure to require sufficient identification of firearms purchasers, information received that Mr. Phillips was knowingly conducting "straw sales" and the tracing of four "crime guns" recovered in other states to Mr. Phillips, an investigation of Mr. Phillips was initiated. Prior to the initiation of the investigation of Mr. Phillips, an ATF agent had visited and discussed with Mr. Phillips the record keeping requirements under the regulations. This agent, on at least five occasions, advised Mr. Phillips against accepting social security cards as a means of identification and discussed with him other elements of the regulations. Based upon these factors, we felt that sufficient reasons existed to initiate an investigation into Mr. Phillips' conduct of business at Jaxon's Inc. QUESTION 3B If it is not entrapment, what is your explanation? RESPONSE Prior to the initiation of the Phillips investigation, ATF had developed information that sales of firearms were being made unlawfully to non-residents of Virginia and that firearms transaction records were being executed unlawfully with Phillips' knowledge. In investigations of the activities of firearms dealers, ATF adheres to the rules concerning entrapment. It is 464 strictly prohibited for ATF undercover agents to encourage, as opposed to merely provide the opportunity for, unlawful sales of firearms. In all instances, ATF agents seek to comply with the rules laid down by the Supreme Court concerning entrapment. In United States v. Russell, 411 U.S. 433, 435-436 (1973), the Supreme Court ruled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. It is only when the Government deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. Of course, any defendant having been unlawfully entrapped into commission of a crime has a valid defense to prosecution. The investigative technique utilized was consistent with the provisions of United States v. Russell. QUESTION 3C What was your justification in this case? Response As a result of ATF conducting firearms traces for this Bureau and other law enforcement agencies, ATF determined that during the period August 21, 1974 to March 12, 1977, four "crime guns" were traced to Jaxon's. Additionally, prior to the initiation of the investigation of Mr. Phillips, our agents had developed information that Jaxon's was a source of firearms to nonresidents of Virginia, and that Mr. Phillips wilfully and knowingly participated in such sales. This information included the following: On July 23, 1974, Julius P. Cropper, a felon, was convicted in U.S. District Court, Norfolk, Virginia, of furnishing false information to a Federally licensed firearms dealer (a violation of 18 U.S.C. 922(a)(6)) and given a two year suspended sentence. Between May 26, 1973, and February 16, 1974, Cropper acquired a total of 20 handguns from Jaxon's Inc., for Earl Brownlee, a Philadelphia resident. In a signed sworn statement given to ATF agents, Cropper said: ".....Since I've been on probation, I've gone with a man named Earl Brownley (sic), a K-9 policeman from Philadelphia, Pennsylvania, to buy pistols at Jaxon's in Parksley, Virginia, several times, and once to Parker's at Melfa, Virginia. In each case, Brownley picked out the pistols he wanted and paid for them. The only thing I did in each case was sign the yellow paper I only signed my name as a favor to Brownley who said he couldn't buy guns because he wasn't a 465 resident of Virginia. Brownley always had the guns when we left the store." On November 6, 1975, Earl Brownlee, a resident of Philadelphia, Pennsylvania, was sentenced in U.S. District Court, Norfolk, Virginia, to three years imprisonment upon his conviction of furnishing false information to a Federally licensed firearms dealer (18 U.S.C. 922(a)(6) count 1 of a 14 count indictment). Brownlee had acquired at least 38 handguns in Virginia and was arrested in Philadelphia while attempting to sell firearms. Witnesses in this case furnished ATF agents signed sworn statements as follows: R. J. Mills: "The man from Philadelphia went into Jaxon's with me and we picked out the guns together. He gave me the money in the store and I paid for the guns." F. J. Trader: "The man gave me the money and I went into the store and asked for 6 caliber 25 pistols which the dealer gave me in boxes. The dealer asked me for some identification. When I was $2 or $3 short of enough money to pay for the guns, the dealer asked me if I was getting them for a man down the road. He couldn't think of his name but I said yes and he let me have the guns for the money I had." G. H. Townsend: "Earl waited outside while his wife and I went in. The store didn't have the guns Earl wanted but his wife said the 3 I had bought were OK. His wife gave me the money in the store. The store clerk asked me for my social security card but I gave him my drivers license. The only other thing the store clerk asked was for me to sign the yellow forms, which I did." J. P. Cropper: "In each case, Brownley (sic) picked out the pistols he wanted and paid for them. I never read the question on the yellow paper and never wrote any 'no' answers on the paper. I only signed my name as a favor to Brownley, who said he couldn't buy guns because he wasn't a resident of V. Brownley always had the guns when we left the store." Earl Brownlee: "I wanted to buy a gun. I went to Jaxon's store in Parksley, Va..... I was told by the salesman that I could not buy a gun there because I was a resident of Pennsylvania and not Virginia. He told me that I couldn't buy a gun but someone else could buy it for me. I left the store and return