DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS STATEMENTS OF: G.R. DICKERSON, DIRECTOR RICHARD DAVIS, ASSISTANT SECRETARY, ENFORCEMENT AND OPERATIONS, DEPARTMENT OF THE TREASURY ACCOMPANIED BY: MILES KEATHLEY, ASSISTANT DIRECTOR, CRIMINAL ENFORCEMENT STEVEN HIGGINS, ASSISTANT DIRECTOR OF REGULATORY ENFORCEMENT JOHN KROGMAN, DEPUTY DIRECTOR MARVIN DESSLER, CHIEF COUNSEL, BATF MR. KAVANAUGH Senator DECONCINI. The next witnesses will be G. R. Dickerson and Richard Davis. And any other gentlemen you are to bring forward or staff members please feel free do so, Mr. Davis. Check all guns at the door. Mr. DAVIS. They do that before we get in the building. [Laughter.] Senator DECONCINI. Please proceed. Would you introduce the people at the table for the record, please? Mr. DAVIS. Certainly, Senator. INTRODUCTION OF ASSOCIATES I am Richard Davis, Assistant Secretary of the Treasury for Enforcement and Operations. This is Mr. G. R. Dickerson the Director of the BATF. To his left, Mr. Keathley, Assistant Director for Criminal Enforcement. And next to him is Mr. Steven Higgins, Assistant Director of Regulatory Enforcement. On my right is Deputy Director John Krogman. And to my far right, Mr. Marvin Dessler, who is the Chief Counsel for the Bureau. PREPARED STATEMENT Senator DeConcini, Senator McClure, I have a prepared but instead of reading it I would just like to summarize it and make a few points that are in the statement. Senator DECONCINI. Do you want the statement in the record? Mr. DAVIS. Yes. Senator DECONCINI. It will be included in the record at this point in full. [The statement follows:] (357) newpage 358 STATEMENT OF RICHARD J. DAVIS, ASSISTANT SECRETARY OF THE TREASURY Mr. Chairman and members of the Subcommittee, I appreciate the opportunity to appear here at these oversight hearings today to discuss with you various aspects of the operations of the Bureau of Alcohol, Tobacco and Firearms. Accompanying me is Mr. G. R. Dickerson who is the Director of the Bureau and members of his staff. As the Assistant Secretary for Enforcement and Operations, I have oversight and general supervisory responsibility for five Treasury entities which have enforcement responsibilities. They are the U.S Customs Service; the U.S. Secret Service; the Office of Foreign Assets Control, the Federal Law Enforcement Training Center and the Bureau of Alcohol, Tobacco and Firearms. I also am responsible for coordinating law enforcement policy for all Treasury Department matters. As part of my responsibilities, I am necessarily concerned with the agency priority setting process, methods and practices of operations and, of course, allegations of misconduct and government abuse. I wish to discuss very broadly certain policies of the Treasury Department which are relevant to these hearings and to the activities of the Bureau of Alcohol, Tobacco and Firearms. I will leave to Mr. Dickerson a more specific discussion of the various activities of the BATF. one area about which you have expressed interest is the question of alleged investigative abuses by BATF. In this regard I think it is important to remember that criminal investigations and enforcement are by nature conflict-oriented. Inevitably, any criminal investigation situation is bound to produce negative reaction from the subjects of investigations. This is often the case regardless of guilt or innocence. It is simply not the kind of activity which by its nature creates good feeling among the parties involved. Rigorous enforcement of violations of the criminal laws is necessary for the effective functioning of any agency with criminal enforcement responsibility. Though it may be a necessary ingredient to effective accomplishment of an agency's mission, it can sometimes lead to instances of abuse or misconduct on the part of the investigator. At the same time criminal investigations, by their nature also can produce false allegations by the subject newpage 359 of an investigation of misconduct or other wrongdoing. While instances of abuse and bad judgment are unfortunately inevitable in any organization, there are steps which can be taken to minimize their occurrence. One such step is the development of a strong internal affairs division. Such a division is a valuable management tool for an agency as it enables it to investigate allegations of improper conduct. It also serves to protect the public. At the sane time, from an agents viewpoint it is also quite desirable as it protects him/her from unfair or unfounded accusations. Great emphasis has been placed on the internal affairs function within each Treasury enforcement bureau. The Office of the Inspector General was also created last fall within the Office of the Secretary of the Treasury. It has an effective oversight function for all internal affairs activities within the Department. At the same time we have been working with Director Dickerson since he took office to enhance BATF's capabilities in this area. It is important also to make certain we are aware of instances of improper or questionable conduct by our agents. To help accomplish this some time ago I sent a letter to the Department of Justice and asked them to notify the relevant Special Agent-in- charge of any Treasury law enforcement agency whenever in the course of a judicial proceeding a motion to suppress is granted on account of the action of that agency's agent or when the court finds that one of our agents committed an illegal or other-wise improper act. This would enable agencies to identify not only single incidents, but any patterns of conduct requiring policy change or discipline. Another way to avoid instances of misconduct is to develop management policies dealing with sensitive areas. As you know, last fall BATF and Treasury re-evaluated and subsequently changed procedures governing routine compliance inspections of firearms licenses and investigations of gun shows. Except for a small number of situations, BATF has ceased to make unannounced inspections of licensees. In most cases licensees are phoned to be notified of a proposed inspection. Inspections without prior notification are now generally limited to very specific instances where there is reason to suspect a violation based on the licensee's prior conduct or where there is specific information Indicating that a licensee may not be in compliance. newpage 360 BATF has also limited its investigations of gun shows and flea markets to situations where there are specific allegations that significant violations have occurred and where there is reliable information that guns sold at the specific show or flea market have shown up in crimes of violence with some degree of regularity. Mr. Dickerson will elaborate more on this issue in his testimony. With regard to undercover operations, we have stressed the need to ensure that proper steps are taken so that undercover operations are not directed at anyone unless there is reliable information that the person has committed serious violations in the past or is about to commit one in the future. Also when an individual who is the subject of an undercover investigation indicates a lack of desire to make an illegal sale it is our policy that no informant or agent coax or otherwise encourages him to do so. We have also created a Treasury-wide task force to review all policies regarding undercover investigations. These then are some of the steps we are taking to try to ensure proper conduct by our agents in enforcing the law. Director Dickerson will describe other changes made to try to direct BATF resources to the most serious problems in the firearms and other areas. I can assure you that we constantly strive for the highest possible standards of performance and conduct from our personnel. In the vast majority of cases we have achieved this. A critical examination of the record of BATF will reveal an overwhelming number of successful investigations and criminal prosecutions. But as with any organization there is always room for improvement and certain acts occur of which we do not approve. Every effort is presently being made to eliminate these incidents to the extent possible. Thank you, Mr. Chairman. newpage 361 STATEMENT SUMMARIZED Senator DECONCINI. You may proceed. Mr. DAVIS. Thank you. I am going to make some general points before Director Dickerson makes his opening remarks and goes into some more details about the programs of the Bureau of Alcohol, Tobacco and Firearms. I think there are a couple of key points that should be made. I think first the issues raised by these hearings -- Senator MCCLURE. Mr. Davis, I hate to interrupt, but do you have a copy of your statement? I don't think either the chairman or myself have been furnished with one. Mr. DAVIS. I think we sent them up yesterday morning. Senator DECONCINI. We have Mr. Dickerson's, but we did not receive yours. Mr. DAVIS. I think we sent them up to your office yesterday morning. Senator DECONCINI. Please proceed. Mr. DAVIS. I think the issues raised by these hearings are really unrelated in many regards to how one feels about gun control. They are unrelated to one's view as to whether the Gun Control Act of 1968 should be repealed, should remain the same, or should be expanded. They relate more, I think, to law enforcement issues, what a law enforcement agency should do, how it should conduct itself, whatever law it is enforcing. In considering that, I think first there is a certain perspective that has to be recognized when you talk about law enforcement problems and the process. I know I have spent 5 years as a prosecutor, and, Senator, you have spent time as a prosecutor. I think that I learned from my experience that the investigative process is undoubtedly one of the most conflict- oriented processes that can exist. It involves as players law enforcement officials who are trying to enforce the law, conducting investigations. It involves those who are the subjects of investigations. I say subjects because some of those people who are investigated may well turn out to be innocent. Some of those people may well turn out ultimately to be guilty. But it is a situation which inherently produces two kinds of things: In some situations it does produce overreaching by a particular agent. I think that any official or law enforcement official who says that in the most perfectly run agency that there will never be a case in which an agent does something that they don't want is being incredibly naive. But the criminal investigative process also produces something else: Nobody likes to be investigated. As a results investigations produce invariably in many agencies, numbers of allegations as to misconduct. Some of them will be true, hopefully very few. Some will not be true. But while a perfect system is impossible, and we can't cure all ills, that doesn't mean there aren't some things that we can do as managers and directors of bureaus and, in fact, those things are being done. I think one of the critical elements is a strong and meaningful internal affairs function in any law enforcement agency. That is newpage 362 important to the director in the management of that agency because he or she needs the ability to have somebody independent look at any allegations that are made. I think such a function is important to the public because it is important that the public know that there are people in an agency who can and will investigate allegations. I think it is important to the individual law enforcement officer because it is a strong internal affairs capability which is the only thing which really protects that officer when the allegations are false. Over the last 2 years I think the Treasury Department has taken steps with all its bureaus to try and instill and enhance that internal affairs function. Without the mandate of a statute, we created a Treasury Inspector General whose sole mission is to oversee the internal affairs operations of all our bureaus, and one of his primary missions is to work with those bureaus to try to improve how they perform this essential task. I know Director Dickerson was selected just 5 or so months ago and began his task. We discussed with him, and he readily agreed, that one of his assignments was to work with me and with the Inspector General to assure that this kind of function is performed as well as possible by the Bureau. The second thing that one needs is the certainty or the ability to make sure that one is aware of problems that are emerging in the field. I must say in the gun control area, the firearms enforcement area, ultimately we find out a great deal. There are certain things that do surface. But it is important to find them out in a timely way, not just for BATF but for all agencies. Many months ago I wrote to the Justice Department on behalf of all the Treasury law enforcement agencies to request that a procedure be set up so that U.S. attorneys would report to the management of bureaus any occasions when courts in decisions dismissed or suppressed evidence based on misbehavior or misconduct of agents or in any situation where comments by a judge suggested impropriety. I have recently spoken to the Justice Department again to press my request for that system, not only so we can identify specific incidents which we may want to look at but so that we can surface procedural and management kinds of issues in terms of problems that need to be addressed. What else must one do that needs be done? One must also try and develop some rational policies in areas, particularly in sensitive and difficult areas. In response to a letter that you sent us last summer, Senator DeConcini, as well as working with others, we looked at some of BATF's policies. Last fall we determined that one problem area policy was gun shows. We put in a new policy to try and make certain that in the gun show area that we didn't send criminal enforcement agents in there except in the most unusual circumstances where there was plainly advance evidence that there really was a very serious problem. I think that Director Dickerson in his prepared statement discusses more about his program to try to work in that area. 363 Two, we became aware of a particular problem in terms of the dealers who were not receiving notice of inspections, so-called no- notice inspections. At the same time we put in a policy-I say we- this is not myself, this is myself working with the then Acting Director, John Krogman, to try to deal with that problem to require that notice be given to dealers before inspection, again with a small number of exceptions where there was really a potentially serious problem. Third, another thing we have also focused on is what we know to be one of the most difficult areas not only for BATF but also for a lot of other enforcement agencies-the undercover investigation. We have stressed to the Bureau and with all our agencies that it is very important that they follow the idea and the notion that they should not begin investigations, undercover investigations of people, unless there is information, reliable information, that the person has committed serious violations in the past or is about to commit one in the future. Also, we have stressed that when an individual is the subject of an undercover investigation, and he indicates a lack of desire to make an illegal sale, it is not our policy to coach or aid that person, or egg that person on. We have also created a Treasury-wide working group on undercover and informant policy to try to put the guidelines in and make certain that they are adequate. The Bureau over the last several years has also been, I think, making great strides in terms of trying to adjust its priorities to what I think that they should be; that is, to those kinds of cases which involve the serious risk of substantial quantities of guns entering the illegal market, getting into the hands of criminals, trying to identify those who are responsible for those kinds of transactions, and devoting our firearms enforcement attention as a general matter to those areas as well as enforcing the other specific provisions that they have responsibility for. Director Dickerson in his statement I think, discusses more about that. But when you get down to it, I think that the key ultimately is strong management, and an ability and willingness of that management to do the necessary job. I know in my less than 2 years in the Department I have come to have a great deal of respect for a lot of these people who are at this table in terms of the kinds of difficult jobs they have. But I must say that-and I am not sure Mr. Dickerson necessarily wants me to say this, but I will say it anyway-that when we looked at and faced the choice for a new Director of the Bureau of AlcohoL Tobacco and Firearms, we deliberately decided to look for somebody who had Government experience. At the same time we also decided to bring in somebody from outside the Bureau who had a fresh perspective on a very difficult set of problems, the kind of difficult set of problems that has come out of these hearings, and the problems with regard to the agents who are enforcing a law in a very difficult situation. 364 This generally completes my opening remarks. I am going to ask Director Dickerson to make his remarks on the specific matters raised at these hearings. Senator DECONCINI. Please proceed. You have a full statement we will put in the record at this time. You can proceed. We have a copy. I presume you want it in the record. PREPARED STATEMENT Mr. DICKERSON. Thank you, Mr. Chairman, Senator McClure. If I may, I would like to submit my statement for the record. I will submit it in advance and I will make a few brief comments. I am certainly willing to answer any questions or try to respond to any questions you bring up. [The statement follows:] 365 STATEMENT OF G. R. DICKERSON, DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS GOOD MORNING, MR. CHAIRMAN. MY NAME IS G. R. DICKERSON, AND I DIRECT THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS. YOU HAVE REQUESTED THAT THIS BUREAU APPEAR THIS MORNING TO DISCUSS VARIOUS ALLEGATIONS REGARDING OUR LAW ENFORCEMENT PRIORITIES, OUR PRACTICES AND SOME INDIVIDUAL CASES. I WILL BE AS RESPONSIVE AS I POSSIBLY CAN IN ANSWERING YOUR QUESTIONS, WITH THE UNDERSTANDING THAT I AM UNDER CERTAIN CONSTRAINTS IMPOSED BY LAW WITH REGARD TO ONGOING CRIMINAL AND CIVIL CASES WHICH MAY BE INVOLVED. LET ME FIRST STATE THAT THE MISSION OF THE BUREAU IS BOTH COMPLEX AND CONSTANTLY EVOLVING. BATF, A RELATIVELY YOUNG BUREAU WHICH WAS CREATED IN 1972, HAS BEEN INVOLVED IN A MATURING PROCESS FOR THE PAST SEVERAL YEARS, THIS DEVELOPMENT INCLUDES ALL ASPECTS OF THE OPERATION OF SUCH A COMPLEX ORGANIZATION--MANAGEMENT, MISSION, JURISDICTION, PERSONNEL. WE HAVE CONSISTENTLY ATTEMPTED TO BUILD A RESPONSIVE AGENCY, ONE THAT IS SENSITIVE TO THE NEEDS OF THE AMERICAN PEOPLE. IN ENFORCING THE PROVISIONS OF THE GUN CONTROL ACT OF 1968 THE BUREAU HAS COMPILED AN IMPRESSIVE RECORD AND HAS CONTRIBUTED SIGNIFICANTLY TO THE PUBLIC SAFETY, WE WISH TO ACKNOWLEDGE THE INVALUABLE ASSISTANCE WHICH HAS BEEN RENDERED BY 170,000 FIREARMS DEALERS AND THE FIREARMS INDUSTRY. SINCE THE ESTABLISHMENT OF OUR TRACING FUNCTION, IN 1972, ATF HAS TRACED 150,000 FIREARMS AT THE REQUEST OF CITY, COUNTY, STATE AND FEDERAL LAW ENFORCEMENT. ATF HAS BEEN SUCCESSFUL IN APPREHENDING THOSE IN VIOLATION OF THE FEDERAL LAW, AND 366 IN SEIZING FIREARMS USED, OR INTENDED TO BE USED, ILLEGALLY. THIS HAS INCLUDED CASES SUCH AS SOLICITATION FOR MURDER OF JUDGES, POLICE OFFICERS, AND PRIVATE CITIZENS, AND ORGANIZED ILLEGAL FIREARMS TRAFFICKING ACROSS STATE AND INTERNATIONAL BORDERS. SINCE 1972 WE HAVE ARRESTED MORE THAN 25,000 PERSONS, AND REMOVED THROUGH UNDERCOVER PURCHASES AND SEIZURE, MORE THAN 100,000 FIREARMS FROM THE ILLICIT MARKETPLACE. WE ARE VERY CONSCIOUS OF OUR STATUTORY OBLIGATION TO SERVE AND COOPERATE WITH LOCAL LAW ENFORCEMENT AGENCIES IN THE FIELDS OF ARSON, EXPLOSIVES AND FIREARMS. TWO RECENT EXAMPLES OF WHICH WE ARE PARTICULARLY PROUD ARE THE SHELBY, N.C. ARSON AND THE SPARROWS POINT, MD. BOMBING MURDER, BOTH OF WHICH WERE DEVELOPED WITH THE ASSISTANCE OF BATF PERSONNEL. THE SHELBY ARSON WAS COMMITTED ON MAY 25, 1979, WHEN AN ENTIRE CITY BLOCK WAS DESTROYED BY FIRE AND EXPLOSION. FOUR FIREFIGHTERS AND A UTILITY COMPANY EMPLOYEE WERE KILLED WHEN TRAPPED IN FALLING DEBRIS. BATF DISPATCHED A NATIONAL RESPONSE TEAM TO ASSIST LOCAL INVESTIGATORS. THEY ASSISTED IN DETERMINING THE NATURE AND LOCATION OF THE INCENDIARY DEVICE WHICH CAUSED THE BLAZE, AND DEVELOPED THE INVESTIGATIONS TO THE POINT THAT SUSPECTS WERE ARRESTED ON JUNE 19. ON MAY 11, 1979 A BOMB EXPLODED UNDER A TRUCK IN A PARKING LOT LOCATED AT THE SPARROWS POINT, MD, FACILITY OF THE BETHLEHEM STEEL CORPORATION. THE DRIVER OF THE TRUCK WAS KILLED AND A PASSENGER INJURED. IN RESPONDING TO THE SCENE, ATF INVESTIGATORS DISCOVERED EXPERIMENTAL TAGGANTS IN THE 367 BOMB DEBRIS, SUBSEQUENT INVESTIGATION LED TO THE ARREST OF AN INDIVIDUAL ONLY TWO WEEKS AGO, AND GAVE CREDENCE TO THE UTILITY OF SUCH A TAGGING PROGRAM. WHILE I AM NOT HERE TO EXTOL THE VIRTUES OF A TAGGING PROGRAM, MR. CHAIRMAN, I DO WISH TO ILLUSTRATE THE FACT THAT THE BUREAU IS ENGAGED IN THE DEVELOPMENT OF PROGRAMS WHICH WILL, HOPEFULLY, LEAD TO GREATER PROTECTION OF THE PUBLIC AT LARGE THROUGH INNOVATIVE LAW ENFORCEMENT. MR. CHAIRMAN, ALLOW ME TO REFER TO TWO ADDITIONAL CASES WHICH ARE MORE SPECIFICALLY IN THE AREA OF FIREARMS CONTROL. ON DECEMBER 21, 1978, ALMOST 300 RIFLES AND SHOTGUNS WERE STOLEN FROM AN INTERSTATE CARRIER IN NEW JERSEY. UNDERCOVER AGENTS OF THE BUREAU MADE INITIAL PURCHASES FROM AN ASSOCIATE OF AN ORGANIZED CRIME FAMILY IN NEW YORK OF FIFTEEN WEAPONS WHICH WERE IDENTIFIED AS BEING PART OF THE STOLEN SHIPMENT. ON JANUARY 23, 1979, TWO UNDERCOVER AGENTS MET WITH THE DEFENDANT AND ARRANGED TO PURCHASE AN ADDITIONAL ONE HUNDRED FIFTY-ONE WEAPONS, ON JANUARY 29, ONE HUNDRED FORTY-ONE MORE OF THE FIREARMS WERE SEIZED. THREE DEFENDANTS HAVE BEEN INDICTED AND ARE AWAITING TRIAL. IN A SECOND CASE, ON JANUARY 31, 1979, SPECIAL AGENTS OF THE NEW YORK DISTRICT OFFICE CULMINATED A YEAR LONG IN-DEPTH UNDERCOVER INVESTIGATION INTO THE ILLEGAL DISTRIBUTION OF FIREARMS AND EXPLOSIVES TO THE CRIMINAL ELEMENT BY MEMBERS OF Organized CRIME. THE INVESTIGATION, COORDINATED THROUGH THE ORGANIZED CRIME STRIKE FORCE IN NEW YORK CITY, HAS LED TO THE ARREST AT THIS TIME OF TWENTY-TWO INDIVIDUALS, AND THE SEIZURE OF NUMEROUS FIREARMS, EXPLOSIVES AND VEHICLES USED TO TRANSPORT THE CONTRABAND WEAPONS. DURING THE COURSE OF THE INVESTIGATION THE AGENTS MADE REPEATED PURCHASES OF HANDGUNS, MACHINEGUNS, SAWED-OFF SHOTGUNS, SILENCERS AND EXPLOSIVES. 368 ONE DEFENDANT WAS IN POSSESSION OF FIFTY-ONE SILENCERS AT THE TIME OF HIS ARREST. MR. CHAIRMAN, I HAVE BEEN DIRECTOR FOR ONLY A FEW MONTHS, BUT I HAVE HAD AN OPPORTUNITY TO GAIN DEEP RESPECT FOR THE WORK WHICH WE DO AND THE POTENTIAL WHICH WE HAVE. UNFORTUNATELY, MANY CRITICS OF THE BUREAU, BOTH THOSE WHO WANT US TO DO MORE IN THE AREA OF GUN CONTROL, AND THOSE WHO WANT US TO DO LESS, HAVE RECENTLY BECOME QUITE VOCAL REGARDING PERCEIVED DEFECTS IN OUR OPERATION. IN SOME CASES THEY ARE JUSTIFIED, IN SOME VERY FEW CASES (OUT OF Z05,000) AGENTS HAVE USED POOR JUDGEMENT. IN SOME CASES INVESTIGATIVE APPROACHES HAVE BEEN USED WHICH, WHILE NOT ILLEGAL, HAVE CAST DOUBT ON THE MOTIVES OF BATF. THESE ALLEGATIONS HAVE CAUSED ME GREAT CONCERN, AND I HAVE ORDERED REVIEWS OF THEM WHEN THEY ARE MADE IN SUCH A MANNER THAT WE CAN IDENTIFY THE CASES INVOLVED. THERE ARE TWO FREQUENTLY ENCOUNTERED METHODS FOR CRIMINALS TO OBTAIN WEAPONS WHICH THEY COULD NOT OTHERWISE LEGALLY PURCHASE, OR WHICH THEY DO NOT WISH TO BE TRACED TO THEM. ONE IS TO MAKE THE PURCHASE AT A GUN SHOW, WHERE RECORDS FOR INDIVIDUAL SALES ARE NOT MAINTAINED. THE OTHER METHOD IS TO HAVE ANOTHER INDIVIDUAL PURCHASE A GUN ON BEHALF OF THE CRIMINAL, SUBSEQUENTLY TRANSFERRING POSSESSION. IN ATTEMPTING TO SHUT DOWN THESE SOURCES OF ILLEGAL GUNS, BATF HAS ENCOUNTERED MANY DIFFICULTIES AMONG THE GUN DEALING COMMUNITY. THE LINE BETWEEN VIGOROUS LAW ENFORCEMENT, WHICH I DEMAND, AND OVERZEALOUS LAW ENFORCEMENT, WHICH I DEPLORE, IS A THIN ONE, BUT IT IS ONE WHICH WE ARE DETERMINED TO FOLLOW. I HAVE, IN THE PAST FEW MONTHS, ISSUED INSTRUCTIONS TO THE FIELD CONCERNING MANY ASPECTS OF OUR MISSION, INCLUDING SELECTION OF CASES FOR INVESTIGATIVE APPROACHES AND TARGETED OFFENSES RESULTING 369 IN A MAJOR MODIFICATION TO OUR OVERALL APPROACH TO ENFORCEMENT OF THE GUN CONTROL ACT. ATF NOW DIRECTS ITS EMPHASIS TOWARD INTERDICTING THE ILLEGAL FLOW OF ARMS, WHETHER INTERSTATE OR INTRASTATE. ENFORCEMENT EFFORTS ARE DIRECTED TOWARD THE IDENTIFICATION AND APPREHENSION OF PRINCIPAL ILLEGAL TRAFFICKERS IN FIREARMS, THEIR SOURCES, DISTRIBUTORS, AND THOSE CONSPIRING WITH THEM. PRIMARY EMPHASIS IS BEING APPLIED TO SUCH VIOLATIONS WHERE LOCAL ENFORCEMENT IS INHIBITED DUE TO MULTI-JURISDICTIONAL COMPLICATIONS OR LACK OF ADEQUATE LAW. FOR THIS REASON, INVESTIGATIONS INVOLVING LICENSED DEALERS ARE BEING CLOSELY MONITORED, AND, IN FACT, ARE NOW CONDUCTED ONLY AFTER SIGNIFICANT REVIEW AND JUSTIFICATION. THE SAME IS TRUE FOR GUN SHOW INVESTIGATIONS. IT IS MY FEELING THAT THE AGENT MANPOWER CAN GENERALLY BE BETTER USED IN OTHER TYPES OF INVESTIGATIONS. THESE CASES WILL NOW BE PURSUED ONLY UPON MY OR MY DEPUTY'S PERSONAL APPROVAL THAT THERE EXISTS A SIGNIFICANT CONNECTION TO CRIMINAL ACTIVITY. COMMON SENSE, HOWEVER, DICTATES THAT OF THE 170,000 FEDERAL LICENSEES, SOME WILL BE IN SERIOUS VIOLATION OF THE LAW, AND THESE WILL BE PURSUED. THE ISSUE OF GUN CONTROL IS HIGHLY POLARIZED--PEOPLE ARE EITHER VERY MUCH FOR IT, OR THEY ARE VERY MUCH AGAINST IT. THE BUREAU HAS NO POSITION OTHER THAN A COMMITMENT TO ENFORCE THE LAWS OF THE UNITED STATES AS THEY ARE CREATED BY THE CONGRESS AND INTERPRETED BY THE COURTS. IT HAS BEEN MY INTENTION SINCE ASSUMING OFFICE IN FEBRUARY OF THIS YEAR TO DIRECT THE EFFORTS OF THE BUREAU TOWARD THE GOALS OF REDUCING THE NUMBER OF GUNS IN THE HANDS OF CRIMINALS, WHILE AT THE SAME TIME INSURING THAT LAW ABIDING CITIZENS RECEIVE THE COOPERATION AND SUPPORT THAT THEY DESERVE. IN THIS REGARD WE ARE CURRENTLY EMPHASIZING FIREARMS DEALER 370 AWARENESS IN OUR REGULATORY PROGRAM, INCLUDING, THE INSTALLATION OF 24-HOUR TOLL FREE TELEPHONE LINES AND THE INCREASING USE OF EDUCATIONAL SEMINARS AND EXHIBITS. AS THE PROGRAMMING OF THE BUREAU DEVELOPS AND RESPONDS TO ADDITIONAL STATUTORY RESPONSIBILITY, THE MANPOWER EXPENDITURES ALSO SHIFT. AS YOU CAN SEE ON THE CHART, ADDITIONAL EMPHASIS HAS BEEN PLACED RECENTLY IN THE AREAS OF EXPLOSIVES AND TOBACCO SMUGGLING, WITH EQUIVALENT DECREASE IN FIREARMS ENFORCEMENT. AS YOU ARE AWARE, MR. CHAIRMAN, THE AGENT FORCE OF THE BUREAU WILL BE REDUCED BY ALMOST TWO HUNDRED POSITIONS BY 1980. MANPOWER LOSSES, COMBINED WITH JURISDICTIONAL EXPANSION, HAVE MANDATED THE MORE EFFECTIVE USE OF AVAILABLE ASSETS. I BELIEVE THAT BY CONCENTRATING ON CASES OF PRIMARY FEDERAL INTEREST WE CAN CONTINUE TO MAKE LIFE DIFFICULT FOR THE CRIMINAL ELEMENT WHILE CONTINUING TO PROVIDE SUPPORT TO THE LAW ABIDING CITIZEN. THIS BUREAU IS COMMITTED TO THE PROFESSIONAL AND RESPONSIBLE ENFORCEMENT OF THE CRIMINAL LAWS. WE ADHERE TO THE HIGHEST STANDARDS OF PROFESSIONAL ETHICS AS A MATTER OF POLICY, AND NEVER KNOWINGLY INFRINGE ON THE CIVIL RIGHTS OF ANY AMERICAN CITIZEN. THIS DOES NOT MEAN, OF COURSE, THAT EVERY DECISION MADE BY AN INDIVIDUAL AGENT IN THE FIELD WILL BE PERFECT WHEN EXAMINED IN COLD LIGHT MANY MONTHS LATER. NO LAW ENFORCEMENT AGENCY CAN CLAIM THAT DEGREE OF CONTROL. I MIGHT TELL YOU, HOWEVER, THAT I HAVE PERSONALLY EXAMINED A NUMBER OF THE ALLEGATIONS WHICH HAVE BEEN PUT FORTH BY CRITICS OF THE BATF, AND I HAVE FOUND MANY OF THEM BIASED AND SOME UNTRUE. UNFORTUNATELY, SOME OF THEM HAVE AT LEAST PARTIAL MERIT, AND IT IS TO THOSE INCIDENTS AND FLAWS THAT I HAVE DIRECTED BY ATTENTION IN AN EFFORT TO LEARN FROM PAST MISTAKES, AND TO IMPROVE THE PERFORMANCE AND PUBLIC IMAGE OF BATF. 371 I ALSO FEEL THAT ANY ACTIONS WE TAKE MUST BE SUBJECT TO PUBLIC SCRUTINY. BELIEVE THAT ALL LAW ENFORCEMENT AGENCIES MUST HAVE A STRONG INTERNAL SECURITY SYSTEM TO ENSURE PROPER CONDUCT OF ITS ACTIVITIES. WE CURRENTLY HAVE AN OFFICE OF INSPECTION WHICH 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 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. WE HAVE BEEN CRITICIZED FOR LACK OF ACTIVITY IN REGARD TO STOLEN WEAPONS. ONE CRITIC STATES THAT 20-25% OF FIREARMS USED IN VIOLENT CRIMES ARE STOLEN. THIS IS TRUE. HE FURTHER ALLEGES THAT ONLY 3.6% OF THE BATF'S WASHINGTON INVESTIGATIONS DEALT WITH FIREARM THEFT IN 1977. THIS IS ALSO TRUE. UNFORTUNATELY, OUR CRITICS NEVER INFORM THE READER THAT THE BATF DOES NOT HAVE JURISDICTION OVER FIREARMS THEFTS EXCEPT THOSE INVOLVING INTERSTATE COMMERCE. OVER 95% OF FIREARMS WHICH ARE STOLEN ARE REMOVED FROM PRIVATE RESIDENCES AND SPORTING GOODS STORES DURING THE COMMISSION OF BURGLARIES. BATF, FOR THE RECORD, HAS NO JURISDICTION OVER THE CRIME OF BURGLARY. MY POINT, MR. CHAIRMAN, IS THAT IF THERE IS TO BE CONSTRUCTIVE DEVELOPMENT OF THE ABILITY OF THE BUREAU TO ENFORCE THE LAW, AND IF WE ARE TO MAKE PROGRESS IN DISARMING THE CRIMINAL, 372 THIS END WILL BE FAR BETTER ACCOMPLISHED IN AN ATMOSPHERE OF OBJECTIVITY AND CANDOR. MR. CHAIRMAN, IN DEALING WITH AN ISSUE LIKE ENFORCEMENT OF THE GUN CONTROL ACT IT IS SOMETIMES DIFFICULT TO KNOW WHO TO LISTEN TO BECAUSE FEELINGS CAN RUN SO STRONGLY ON BOTH SIDES. AS I STATED EARLIER, WE ONLY WISH TO ENFORCE THE LAW OF THE LAND FOR THE ULTIMATE GOOD OF ALL THE CITIZENS. WE WERE EXTREMELY GRATIFIED, THEREFORE, TO RECEIVE A LETTER FROM A MEMBER OF CONGRESS LAST YEAR CONCERNING THE RESULTS OF AN INDEPENDENT SURVEY WHICH HE HAD MADE IN HIS CONGRESSIONAL DISTRICT. I MIGHT ADD THAT BATF HAD NO INPUT INTO THE SURVEY, NOR DID WE HAVE KNOWLEDGE THAT IT WAS BEING ADMINISTERED UNTIL WE RECEIVED THIS LETTER. IT IS SHORT, AND I WOULD LIKE TO READ IT INTO THE RECORD AT THIS POINT. WE ALWAYS HAVE ROOM FOR IMPROVEMENT. ANY LAW ENFORCEMENT AGENCY ALWAYS WILL. BUT I AM PROUD OF THE MEN AND WOMEN OF ATF, WE ARE DETERMINED TO PROVIDE THE GREATEST AMOUNT OF PROTECTION TO THE PUBLIC THAT IS POSSIBLE UNDER EXISTING LAW AND CONSISTENT WITH GOOD JUDGEMENT. I WILL END MY STATEMENT AT THIS POINT BECAUSE I UNDERSTAND THAT YOU HAVE SEVERAL SPECIFIC CASES WHICH YOU WILL INQUIRE ABOUT. I WILL DO MY BEST TO ANSWER YOUR QUESTIONS, AND IN THE EVENT THAT WE ARE NOT PREPARED TO ADDRESS ANY SPECIFIC SET OF CIRCUMSTANCES, WE WILL PROVIDE MATERIAL FOR THE RECORD. THANK YOU. 373 LETTER FROM REPRESENTATIVE WILLIAM M. KETCHUM March 6, 1973 Mr. Paul Anderson Acting Area Supervisor Bureau of Alcohol, Tobacco and Firearms 1130 "O".Street, Room 4217 Fresno, California 93721 Dear Mr. Anderson: I have just completed a survey of gun dealers and collectors in California's 18th Congressional District which I would like to share with you. It goes without saying that all members of Congress are apprised of situations which demonstrate an overstepping of the bounds of authority by various federal agencies. Incidents such as these were brought to my attention earlier this year. In an effort to determine that the ATF agents in my District were working for the people rather than against them, I conducted the aforementioned survey, asking dealers and collectors to share their own ATF experiences with me. The results were both pleasing and surprising: the first letter spoke in the most glowing terms of "enjoyable" relationships with ATF agents; those that followed suit were in the same vein. To a man (or woman), the dealers spoke of courteous, cooperative and helpful service on the part of all ATF personnel with whom they had dealt. We are all very quick to criticize the bureaucracy; I believe we should be equally ready to commend a job well done. You, and all those who work within your area agency, are certainly to be congratulated and commended for the professionalism and consideration with which you are operating. Sincerely, [signed] WILLIAM M. KETCHUM Member of Congress 374 ATF EXPERIENCES New York, NY On November 22, 1976, the Chief of Staff, El Salvador Armed Forces, and six of his associates were arrested by ATF when they accepted $100,000 in furtherance of their conspiracy to divert 10,000 machineguns to an alleged underworld figure in the United States. All-were convicted of related violations; four were imprisoned. Rome, GA In August 1978, a plot to murder a county district attorney was foiled by ATF with the arrest of three suspects for firearms violations. The principal was sentenced to 14 years in prison upon his conviction on related firearms charges. State charges relating to murder are pending. Knoxville, TN The unsolved burglary and theft of 142 machineguns from the U.S. Marine Corps Reserve Training Center on April 2, 1976, netted six defendants lengthy prison sentences as a result of their subsequent effort to sell these firearms to an ATF undercover agent. Miami, FL During the fall of 1976, ATF seized an assassination kit factory and arrested its operator. The defendant was sentenced to consecutive sentences totaling 50 years. This factory was assembling silencer equipped firearms mounted inside a commercial type brief case. Kensington, MD During August 1976, a plot to divert 200 machineguns from the U.S. to Iraq was foiled by ATF with the arrest of the principal who was subsequently sentenced to 7 years in prison. Los Angeles, CA As a result of an ATF undercover investigation initiated in January 1978, and the resulting warrant executions in May 1978, ATF seized over 100 silencers and arrested three defendants at Venice, California. Two of the defendants have been imprisoned, one is awaiting trial. El Paso, TX A shootout with the Mexican Federal Police and major narcotics dealers and subsequent recovery of a firearm from the dead heroin- carrying smuggler, led ATF to identify five additional defendants involved in a plot to smuggle guns into Mexico in return for narcotics. In January, 1979, the principal was sentenced to 14 years in prison. Beaumont, TX In February, 1979, four high-ranking police officials received sentences ranging from 10 to 20 years for the part they played in the interstate 375 transportation of stolen firearms and the unlawful sale of machineguns. Three additional defendants were sentenced to prison in State court on related burglary charges. Beaumont, TX In February 1979, a member of the Ku Klux Klan was sentenced to 5 years in prison for his possession and attempted sale of seven machineguns to an ATF undercover agent. New York, NY In August 1977, local police arrested the infamous "Son of Sam" murderer and recovered a .44 caliber pistol which ATF subsequently traced and ultimately proved that it had been purchased by the accused. Louisville, KY Following his theft of firearms from private homes in Virginia, a person on probation for a bombing conviction, was sentenced to 3 years in prison for the subsequent sale of the stolen firearms in Kentucky. Fargo, ND A felon and self-proclaimed revolutionary, who advocated political assassination, was sentenced to 3 years in prison after illegally transporting several firearms in interstate commerce. San Francisco, CA >From the late fall of 1973 until late spring of 1974, San Francisco was locked in a virtual state of siege by four members of a white hatred cult known as the "Death Angels." Before police and Federal officials could stop the slaughter, 13 persons had been killed 6 persons seriously wounded and 1 person crippled for life. The one vital clue to the case was a firearm, traced by ATF from its foreign manufacturer through seven owners, in several states, and ultimately into the hands of an associate of the four defendants. In a trial that lasted longer than a year, the longest in California's history, all four were convicted and sentences to life in prison. Richmond, VA This investigation resulted in the conviction of three individuals where involved in a theft ring that covered eleven counties in northern Virginia. These individuals specialized in the theft of firearms which they sold in Maryland and New York. During this investigation one of the principals attempted to hire the ATF undercover agent to murder a local county investigator, a Deputy Sheriff and a police informant. Atlanta, GA ATF Special Agents received information regarding the interstate transportation of large quantities of stolen firearm and jewelry by organized crime figures. Subsequent investigation resulted in the recovery of 17 376 firearms which were part of a theft of 150 firearms and the indictment and arrest of seven organized crime figures from New York, North Carolina, and Georgia. Minneapolis, MN During 1978, the leader of a group of armed robbers, who had effectively insulated himself from police detection and who was responsible for approximately 30 armed robberies, frequently "pistol-whipping" the victims, was sentenced to 10 years in prison after ATF agents recovered two "sawed-off" shotguns from the trunk of his car. Houston, TX In July 1978, six professional burglars, most of whom were felons, received sentences ranging up to 20 years confinement for their participation in an interstate firearms burglary ring. The seventh defendant is currently a fugitive. Los Angeles, CA In May, 1978, the crime spree of a fugitive with organized crime and outlaw motorcycle gang connections, was ended as a result of his sale of stolen firearms to an ATF undercover agent. He received consecutive prison sentences totaling 61 years. Houston, TX In May, 1978, three narcotics dealers were sentenced for the part they played in a plot to manufacture and sell machineguns. The subsequent murder of the principal defendant, who had later testified for the Government, is still unsolved. Detroit, MI A convicted felon, dealing in firearms and narcotics, received a 2- year prison term, for violating the Gun Control Act. His two associates are awaiting trial. Minneapolis, MN After selling a "sawed-off" shotgun to an undercover ATF agent, this felon, who supported his narcotic addiction by burglarizing, was imprisoned for a term of 5 years. Falls Church, VA The recovery of certain stolen firearms at various crime scenes led ATF to uncover an unlawful firearms distribution ring involving 18 people, most of whom were felons and one of whom was a State prison official. Nine of those involved received substantial prison sentences. Arlington, VA Three defendants with extensive violent crime records, one, a prison 377 escapee, received 18-month prison sentences for their unlawful possession of firearms at the Washington National Airport. Detroit, MI When ATF executed a Federal search warrant at the residence of a proven felon, in search of unlawfully possessed firearms, they found $1.5 million in counterfeit U.S. currency, bombs, and a firearm silencer in addition to the firearms described in the warrant. The suspect was sentenced to 10 years in prison. Richmond, VA Nine handguns, recovered at various crime scenes in New York, led to the imprisonment of three defendants who were snuggling firearms from Virginia to New York. Los Angeles, CA A conspiracy on the part of four members of an outlaw motorcycle gang to dispose of stolen firearm and to illegally acquire explo- sives was foiled when they sold 15 stolen firearms to ATF undercover agents. All four received sentences of up to 3 years in prison. Los Angeles, CA in August 1978, the leader of the "Black Guerilla Family" (a black prison gang), was sentenced to 15 months in prison when, after a 7- day surveillance, ATF agents recovered two stolen firearms from his residence. Union, NJ ATF's tracing of the silencer-equipped firearm used to murder a New Jersey organized crime figure and subsequent investigation resulted in the arrest and conviction of a previously convicted felon who was transporting firearms from Florida to the New York, New Jersey area. Detroit, MI The seizure, by ATF, of 22 firearms, including two gangster-type weapons, from a recidivistic felon and bank robbery suspect, led to 15-year prison terms for himself and his cousin for bank robbery The weapons charges were dismissed. Detroit, MI A person with previous rape and assault convictions was found not guilty for kidnapping and repeatedly raping, over a 2-day period in his apartment, his female victim. He was sentenced to 5 years in prison for unlawfully possessing firearms found in his apartment. San Francisco, CA The arrest and conviction, by ATF, of a three-time convicted felon for his unlawful possession of a stolen firearm also led to the solving of three armed robberies and the identification of a murder suspect. San Francisco, CA It took ATF and law enforcement personnel from five State and local enforcement agencies and two additional Federal agencies to thwart 378 a 13 member conspiracy in their attempt to manufacture and smuggle machineguns into Mexico in trade for narcotics. Twelve of the 13 defendants were convicted and sentences ranged up to 5 years in prison. St. Louis, MO An ex-St. Louis police officer and a practicing physician manu- factured a "sawed-off" shotgun in furtherance of their conspiracy to murder the physician's wife to collect $350,000 life insurance. Both were arrested and convicted of related firearms charges before they could carry out their scheme. One is in prison and the other awaiting the outcome of his appeal. Miami, FL After stealing an entire shipment of 200 handguns and affixing silencers to 7 of them, the luck of these 3 defendants changed for the worse when they sold the 7 silencer-equipped guns to ATF undercover agents. One defendant was sentenced to prison for 5 years; one received probation and one was not prosecuted. Philadelphia, PA Three defendants, involved in a six-state conspiracy, illegally disposed of 600 inexpensive handguns before being arrested. Two received prison sentences; one, probation. To date, their illegal wares have been recovered from felons, burglars, armed robbers, and at murder scenes. Seattle, WA Nine people, including a pharmacist and two military persons, formed a paramilitary group and conspired to illegally deal in firearms, explosives and stolen military equipment. Three of the nine are in prison; two are on probation; one is a fugitive and three are not indicted. Long Beach, CA A 5-month investigation to determine the source of firearms to local street gangs uncovered a sophisticated plot to steal machineguns from, the U.S. Marine Corps, San Diego, California. The leader of this plot, conducting a gambling and narcotics operation out of his tavern, was convicted in March 1979 of various violations of the Gun Control Act. Sentencing is pending. San Diego, CA A plot on the part of four U.S. Marines to sell stolen machineguns ended when they sold one to an ATF undercover agent. All four received sentences of up to 6 months in prison. 379 HIGHLIGHTS OF STATEMENT Mr. Dickerson. We are appearing here today at your request to respond to allegations of wrongdoing on the part of BATF regarding our law enforcement activities. As you know, and as Mr. Davis mentioned, I have only been in this position less than 5 months. But I would certainly be less than candid if I didn't say these hearings bring me considerable concern. Many things have been said that certainly need to be looked into. I assure you we will do that. On the other hand, I would like to start off by saying that now having been in the agency 5 months, I have formed a number of perceptions about the agency. I think it would be wrong if I didn't say that I have found many good things about the agency. I found good people, dedicated people. I found good management dedicated law enforcement officers. I mentioned in my statement that I think many of the things we do are very productive and very effective in terms of law enforcement. I would like to clarify this one thing before we proceed with regard to some of the statements made yesterday. The impression was left that our sole function is firearms control. That is not true. We have a variety of activities to be supervised: alcohol activities, illegal tobacco, illicit smuggling of tobacco among States, explosives regulations and investigations of criminal bombings, arsons which were started by explosives, which Senator McClure did mention, as well as the firearms area. In clarification of that, we do have approximately 1,500 criminal investigators. Of those, about 65 percent, 60 percent are involved in firearms criminal activities. That, as you know, is a number that will be reduced as our total number of employees at the BATF will be reduced by approximately 200 positions in the upcoming year. Approximately 100 of those will come from the criminal enforcement activity. I did mention, I won't repeat, in my statement a number of the recent significant criminal activities we have been involved in. Just briefly, the arrest of a suspect in what was a brutal bombing murder at Sparrows Point, Md., last month; working with State and local people in the identification of suspects and the major arson in North Carolina which resulted in 5 people being killed; recovery of some 300 weapons earlier this year that were stolen in interstate mail transportation; and disruption of a major distribution for illegal explosive devices in the New York area. I could go on and on. I could name a number of those, Mr. Chairman, and I would. I would like to submit for the record, in addition to my statement, a number of cases made in the firearms am in the past 2 or 3 years which involve organized crime, and which involve, I think we can all agree, acts we would like to suppress and bring to a conclusion. Senator DECONCINI. Please feel free to bring those to our attention. They will remain a part of our record. Mr. DICKERSON. I will be very glad to, Mr. Chairman. I might say 380 coming into this job from some of the areas that are not quite so controversial even I have been shocked by some of the very controversial elements involved in gun control, in the gun issue. Emotionalism runs very high. Since I have been in the organization I have made the point of trying to meet with all the divergent groups involved in this issue. I have met with the handgun groups and I have met with people like Mr. Snyder and Mr. Knox. I made up my mind very early in the game that I wanted to take a very objective, down the middle of the road approach with regard to this issue. I want to follow the laws that we have been enforcing rigidly, without being involved in the actual gun control issue. I have attempted to do that. I have, as I mentioned, been concerned about allegations of wrong doing. I have reviewed many of these. I can't say that I welcome this hearing, but I certainly think that hearings such as this are necessary and that Government agencies must be able to withstand scrutiny of what they do. I have, as I said, reviewed many instances of alleged wrongdoing. I will say this, that anything that comes out which indicates illicit activity on the part of BATF employees identified by this hearing or identified by anyone else and brought to my attention will be thoroughly investigated. I might say that because of some of the issues surrounding the gun issue, I also think some of the charges are not totally true, or in some instances are biased. I receive letters such as a letter that said, "Since I was gone from my home somebody had stolen a .22, and it had to be a BATF agent." This goes all the way to the other side. I just would like to bring up one case in point. I am trying to respond to all the things brought up yesterday. A statement was made yesterday about an individual who was charged with dealing as a result of three gun purchases made undercover by BATF agents. I think it ought to be brought out that that particular individual had earlier been arrested for dealing in illegal explosive devices. An arrangement was worked out by the U.S. attorney that he would surrender his dealer's license. This all occurred before the instance in which the officers went back, subsequently purchased 3 weapons from him in an undercover capacity, and arrested this individual only after he-and this is recorded- in a room with over 100 guns told these officers that he was-that every weapon there was available for sale except 1 which was his own personal weapon. I do hope that we have an opportunity to bring out in many of these cases the other side of the situation; again without saying that in every we are right. I am not trying to say that. We certainly are interested in any instance in which we are wrong. Let me comment on one other point. Mr. Davis said that a number of actions have been taken. A number of actions were taken before I came on the scene. The priorities of the agency over a year ago were in the gun area, from investigations of what we call the one- 381 gun, one-case situation, to what we call interdiction, major interstate trafficking, major violations to commit criminal acts by weapons. I think it is a good priority. I think it is the way we should go. It is the way we are going now. We will have fewer cases to develop which will be more significant I have taken action since I have been in to assure that this new direction which was worked out between the Department and BATF is complied with. I have been concerned about the issue of gun dealer cases. I have been concerned about the issue of some of these cases that have been made. I have issued instructions that no investigation will be undertaken of gun dealers or a gun show without my personal review, or the personal review of my deputy. In each instance we assure that the circumstances which result in a request for investigation, there is what is called criminal negligence. In other words, that the dealer is allegedly dealing in stolen weapons, is providing weapons for criminals outside the Gun Control Act, or is involved in some significant criminal activity of the type we want to address. I am dedicated to the enforcement of the Gun Control Act for the purpose of preventing guns from getting to criminals, being used by criminals, or for use for criminal purposes. I intend to see that the activities of this agency are aimed at trying to suppress criminal activity. We are strongly aware that the actions of BATF or any enforcement agency, particularly an enforcement agency that deals with sensitive commodities as we do, must be able to stand up to public scrutiny and congressional scrutiny. I have taken a number of internal actions or started them since I have been in the agency. Mr. Davis mentioned our interest and concern in the Department for a strong inspection service. I have requested assistance from the Department in reviewing our current inspection activity. I will be submitting to the Department within 2 weeks a proposal for complete revision of our internal security activities designed to strengthen those activities. It will provide in our field offices capability for meeting and investigating allegations of wrongdoing. We will provide increased capability for program review to make sure our activities are in line with those established by the Department and ourselves. I have also recommended to the Department a major revision of our final enforcement structure, basically to establish 4 regional offices to supervise the 29 SAC offices we now have, so I can provide better day-to-day, onsite control of our criminal enforcement activities. When this is established I intend to meet with regional officials periodically to insure that our activities are aimed at approved objectives. When I arrived the first act that I took, one of the first acts, was to clarify for each employee a series of what I thought were important-priorities. I made a statement about that. I reemphasized it at every management meeting. I stated I strongly believe that there is not any enforcement action, any seizure, any arrest which is important enough that it would warrant violating any statute, violating regulations, violating guidelines, or violating good law enforcement practice. 382 Mr. Chairman, I believe in that very strongly. My point is, in summary, that I intend to insure that the activities of this agency are aimed at criminal activities, significant criminal activities of the type that I think we all agree should be suppressed. I intend to insure that our law enforcement techniques are good law enforcement practices that will stand up to scrutiny by the public and by this Congress. I intend to establish strong internal security to prevent possible abuses. I intend to act rigidly if such abuses do occur. Mr. Chairman, I am not here to defend this agency if it is responsible for wrongdoing. I am here, I am dedicated to see that the agency moves in the right direction. Thank you. I have with me a number of managers in our agency, people who, as Rich has mentioned, I also have gained a large amount of respect for in the 4 or 5 months I have been with the agency. Together, we would be very pleased to try to answer any questions that you or the Senator have regarding this. Thank you very much. Senator DECONCINI. Mr. Dickerson and Mr. Davis, let me thank you for your testimony. Let me also thank you for the commitment you have just made and are in the process of making. I have every reason to believe you will follow through with them, a careful scrutiny of the allegations that have been made here. I assure you we will ask you some questions about them and look forward to as detailed an answer as you care to give. Let me also indicate, it is not the chairman or this Senator's effort and I am sure Senator McClure joins, to make a mockery of some of the fine Federal agents who have given of their life and time in the service of their country in enforcement of the laws of this country. I have indicated before, firsthand knowledge and experience as a prosecutor with the investigators in my office at the time and the prosecutors, with the expert ability to enforce the law fairly and with great caution and to have a very effective enforcement in the area of gun smuggling and organized crime. I can assure you this is not a witchhunt by this committee. I can also assure you that the evidence that was given yesterday disturbs this Senator extremely. I have heard those charges many, many times in many, many years. It has always been extremely difficult to get citizens to come forward and testify as we had yesterday. So I will address a few questions to some of the specifics brought up yesterday. Then I will let Mr. McClure do likewise. First of a what is the amount of the BATF resources that are spent investigating licensed dealers? Either you, Mr. Dickerson, or Mr. Davis can answer that for us. Mr. DICKERSON. Mr. Chairman, I am not sure I can give you exactly the amount of money spent. But I can give you a statistic that will show the number of dealers as compared to our overall investigative workload. Fiscal year 1978 we initiated 24,908 investigations. There were 671 dealer investigations. This made up approximately 2.6 percent of investigative activity. Senator DECONCINI. Please give me that again. Mr. DICKERSON. 24,908 investigations, of the total investigations 671 were dealer investigations, 2.6 percent of the total investigations. 383 Senator DECONCINI. That is in the year- Mr. DICKERSON. The year 1978. In fiscal year 1979, by the end of May 31 which would have been 8 months, we initiated 10,680 investigations. We authorized 203 dealer investigations, or 1.9 percent of the total. Senator DECONCINI. You mentioned that all dealer investigations now are approved either by you or by your deputy. Does that include the six raids, investigations in Minnesota last month? Are you familiar with those cases? Mr. DICKERSON. No, sir; I am not familiar with them. Senator DECONCINI. Am I incorrect that there were six dealer investigations- Mr. DICKERSON. Either I or my deputy- Senator DECONCINI. Would your deputy know about those? Mr. KROGMAN. I am not familiar with them. Senator DECONCINI. Six specific dealer investigations in Minnesota last month? Mr. KROGMAN. No, sir; I am not. The dealer investigations we are approving are the licensed dealer investigations, not the unlicensed dealer. That may be the case in Minnesota where they would pursue that on their own. Senator DECONCINI. Going back to yesterday's testimony, and completely refuting what I am alluding to here, if you disagree with it. But why are people like Mr. Phillips and other what appear to be lawabiding citizens subject to the constant attempts of entrapment as Mr. Phillips has pointed out yesterday? Mr. DICKERSON. Mr. Chairman, as you know, as a prosecutor and a law enforcement officer, the question of entrapment is a very complex one. I can only answer that by saying that I have not been able to identify any situation in which the issue of entrapment has been brought up and was sustained by a court. I am not saying it couldn't have happened, because we are unaware of every dismissal that takes place. But the issue of entrapment is brought up almost every time in a case like that. In one case the issue of entrapment was carried past the lower court to a district court and that case was sustained. Senator DECONCINI. If it is not entrapment what is your explanation to the Phillips case, the 1977 case? Do you recall that case? Mr. DICKERSON. The Phillips case was a case in which he sold weapons to undercover people. He was taken to court. To my knowledge, he was not found guilty. But to my knowledge, the issue was not the defense of entrapment. Senator DECONCINI. Forget the entrapment. What was the justification in that caw? Mr. DICKERSON. The basis for the initiation of the original investigation was based on statistics which found tracing recovered primarily in Washington, D.C., that many of those came from the area where Mr. Phillips was. Senator DECONCINI. Was that from informants? Mr. DICKERSON. No. This was tracing back the weapons themselves that were discovered. 384 Senator DECONCINI. How many traces did you make to Mr. Phillips? Mr. DICKERSON. I do not have that information right here. I will try to find out for you. Senator MCCLURE. What do you mean "from the area where he was located"? Mr. DICKERSON. Senator McClure, I am told, weapons were traced back to him. I don't know the number of weapons. But I will try to find out for you. Senator MCCLURE. You said "back to him"? Mr. DICKERSON. And to other dealers in that area. Senator MCCLURE. Will you supply for the record exactly what happened? Mr. DICKERSON. Yes, sir. [CLERK'S NOTE.-The information appears on p. 195.] Mr. DICKERSON. But I might clarify, Senator. I don't want to mislead you. In certain instances these types of cases were initiated in which there was direct traces back to identified dealers. But some of the cases which have been identified to me- and some of the cases I am sure have been reported to you--are not a direct result of that. In some cases they were initiated because of concern that in that area a number of guns had come back. I want to make sure that is understood. I don't want to mislead you. Senator MCCLURE. Mr. Chairman, if I may, the chairman asked you why Mr. Phillips was investigated. Your answer was because crimes committed in the District of Columbia with firearms had been traced in which the firearms had been traced back either to Mr. Phillips and, I think, to other dealers in the area. Mr. Dickerson, let me refer you to the cross-examination of your agent in that case in which it is said, "So that when you went to Jaxon's in July of 1977 you had no particular reason to go to that store, other than the fact that Jaxon's and Mr. Harrison Phillips was a licensed dealer; is that correct?" The answer of the agent was "Yes, sir." It is not in context. I am referring to the transcript of the trial, pages 17 and 18 of cross-examination of your agent. The question then was asked, "You had no particular evidence or understanding that there was activity going on there that was any different from any other that might be going on in any other licensed dealer of firearms?" Answer: "Not that I recall; no,sir." Mr. Dickerson, somebody is lying. Mr. DICKERSON. I just made the statement that in some cases word gets back to the dealers. In some cases it was an area-type situation where an area was identified. Senator MCCLURE. You just indicated to this committee that the information given to you by your assistant indicated that illegal firearms had been traced back to Mr. Phillips and other dealers in that area. Your own agent in cross-examination said there was no such evidence that he was aware of. Mr. DICKERSON. I will establish which is correct. 385 Senator DECONCINI. Now, Mr. Dickerson, if the Senator will yield, I think Senator McClure raises a good point. It can be answered in several ways. The agent didn't know or made a mistake or, in fact your own intelligence is inaccurate, that there was tracing back. What I am interested in finding out is, which one of those? I care because of Mr. Phillips' rights being violated. But I am more interested in does somebody have an answer. I am not going to slap your hands or do anything. All I would like to know is, How did this happen and which set of facts should we believe along with your commitment just a few minutes ago that you want to get to these things yourself'? Mr. DICKERSON. I will try to make it clear because I didn't want to be misunderstood. Some of these cases were initiated on an areawide basis not based on specific information of a specific dealer. I may be wrong and my advice may be wrong in the Phillips case and I certainly will find out exactly what happened and will submit it. I am not saying in every instance there was specific information alleged to that dealer at that time. I am saying in the guidelines that we have now, which I now insist on, that type of information would be available before I would permit such a case to be initiated. Senator MCCLURE. Mr. Chairman, when I said somebody is lying, I am not accusing you, Mr. Dickerson. Because you were not here at the time of the Phillips case. I am not, as the chairman is not, certain where the difference in information comes. But the statement that you made is not supported by the record. I would think that you would be just as concerned about that as we are. Mr. DICKERSON. I am concerned, Senator. That is the reason I tried to amend my statement because I want to make sure. I again repeat that I would not authorize that type of case to be initiated if there was no evidence of criminal involvement Senator DECONCINI. Thank you. That is the spirit of the question, Mr. Dickerson, is I think it is important that what you just indicated be on the record on behalf of BATF. Mr. DAVIS. Senator, I did want to make one general point. There is some suggestion in some of the materials I have read that raises some questions about the utility of trying to worry about the fact that guns used in one jurisdiction, where they would have been illegal to purchase, came from another jurisdiction. I obviously fully support and think it critical what Director Dickerson said: that we want to investigate dealers only where there is information and reliable information. It should not, however, be lost sight of that the problem of out-of-State gun sales is an important concern. I don't think I have to remind this committee of one of the most notorious cases in the last, I don't know, in my memory, perhaps in my lifetime. That was the Son of Sam case. We may recall in that very case there was a situation in which, while Mr. Berkowitz was in Houston, Tex., he went with an old Army buddy 386 into a pawnshop in Houston and because he couldn't buy the gun because he wasn't from Texas, he had his friend buy it for him and give it to him. That is a situation that does raise a problem. We want to address ourselves to those cases not just where it happens once, where it is inadvertent, but we want to address our attention to those cases where it is a real problem where it looks like a real conscious decision is made by somebody to violate the law. It is sometimes lost but the fact is there is really an important interest here. I just wanted to point that out. Senator DECONCINI. Mr. Dickerson, let me turn to the case of Curtis Earl. You may have heard his testimony yesterday. A couple of things concern me about that case. One is, Why has the BATF continued to investigate Mr. Earl without bringing charges against him? Do you know? Mr. DICKERSON. Why have we, since the previous grand jury, continued to investigate him? Senator DECONCINI. I understand from his testimony given yesterday that the BATF secured a warrant, went into his home, confiscated guns. He volunteered and requested to go before the grand jury himself and did. I assume that the Government also went before the grand jury. Yet, no indictment had been brought forward. He is under the impression-certainly he left me with that impression-that he is still under active investigation which is certainly your prerogative. Let me make that clear. I am not implicating one way or the other whether you should continue or cease the investigation of Mr. Earl because I don't know. What does concern me is, if the investigation is still going on, why haven't some charges been brought against Mr. Earl? Mr. DICKERSON. Let me verify them. I do know this, Mr. Chairman, the facts you stated were right. We did go before the grand jury based on a series of facts I can present if you would like me to. The grand jury did not indict. There has been administrative action taken to consider possible revocation of his license. There is continuing administrative action. There has been a hearing on that. A decision has not yet been made at this time. Maybe he was referring to administrative actions being taken. I will check to see if there is an active investigation now. Senator DECONCINI. I would like to know, also, can you advise- Mr. DICKERSON. We are not aware of any investigation. Senator DECONCINI. On what basis would you continue administrative consideration when, apparently, from what he indicates, the basis of your search warrant was suspicion that he was violating title II and, yet, no indictment came forward. What necessitates a continued administrative investigation or hearing? Mr. DICKERSON. Of course, the proof required for criminal action is quite different than proof required for administrative action. While there may not have been sufficient reason to indict in the criminal 387 statutes, there still could be reason to revoke his license for activities that came out as a result of our investigation. Senator DECONCINI. But don't you think that places the BATF in a very precarious position when they attempt to move on a criminal investigation based on the necessities to get a search warrant and then there is no indictment forthcoming? And then an administrative procedure is commenced. Doesn't that trouble you that it is an easy way to take a second bite at the proverbial apple that you couldn't get the first time? I have been a prosecutor. I know the temptation of doing just that because you are convinced in the first instance that you have got a good case against somebody. Your are entitled to that. That is your job; both law enforcement and from the prosecutorial end. After you do it, it certainly puts you in a questionable position to turn around and file an administrative action against him. I would like to know how you justify that. Mr. DICKERSON. I think I will defer to my chief counsel, but I would like to make a point based on my past experience. This is not an unusual thing where an investigation would be undertaken to determine first if he was guilty of fraud. Where we would not be able to establish evidence of criminal fraud here but still could result in a civil penalty because of actions that took place, I can equate that in my mind. But if it were, in fact, the type of situation you are saying, taking your two bites of the apple in the same set of circumstances, because of trying to get even because you couldn't get him one way or the other- Senator DECONCINI. Do you have any procedure to attempt to minimize that occurring? Any directives to your agents? Mr. DAVIS. Senator, while Mr. Dickerson is checking, as you know, I think we would all be in an unhappy situation in many cases if the only sanctions that were ever available for a particular violation were criminal sanctions. It would directly produce probably more bad criminal cases as opposed to less bad criminal cases. Again, not looking at the case where it can be shown that there is a revenge motive for going civilly, but where you look at the proof and where it seems a criminal case would not be appropriate, criminal sanctions, just as a general matter, should be preserved for those things which are truly criminal. You may want to have available civil sanctions for other situations. It is not necessarily, in the general area, bad to have two types of sanctions. I am not discussing where somebody can show it is a revenge motive. Senator DECONCINI. But that begs one question, and that is, certainly, if you decide to take civil action or license revocation action as an alternative to criminal action, that decision is available to you. But then you elect to take the criminal action, results in no conviction add then taking civil action, casts doubt on your motives. I would say to Mr. Dickerson, I know you have had some consultation and want to answer further, that certainly if there is a 388 criminal charge and an acquittal, the burden of proof in the criminal charge is so different that indeed there may be sufficient evidence for a civil action following the criminal action. I think that is doubtful utility, and perhaps unwise to do it in am order. But I could see where it is possible. I think that is a pattern that we see developing in BATF, but, second, in the Earl case, it wasn't the item of an acquittal followed by license action. You couldn't even get an indictment. All that requires is probable cause. It doesn't require a greater burden of proof. It requires a lesser burden of proof. Yet you go ahead with the civil action. Perhaps you will have to forgive me for saying that that seems to me to lend weight to the idea that it is a punitive civil proceeding and it is intended to be punitive rather than based upon sound, legal grounds. Mr. DICKERSON. I would point out in many instances-l am not sure in this case-that a U.S. attorney or a grand jury will refuse to indict based on the knowledge they will have some type of civil action taken. That may not be true in this particular case. But many times an attorney, knowing that some civil remedy will take place, will refer it back to the agency to get that remedy rather than go forward and indict. I do again repeat that I agree that civil actions should not be a punitive action for failure to be able to take criminal action. There is a pattern to that that concerns me. Certainly we can look at it from the standpoint of whether some actions should be taken. Senator DECONCINI. Do you have any policy or guidelines to your agents- Mr. DICKERSON. Largely, it is a very delegated authority now to our regional people to initiate administrative actions. Mr. HiGGINS. In terms of writing guidelines, we have no guidelines written to say you would not take an administrative action following either a dismissal of indictment or an acquittal, for punitive measures, because we didn't start out assuming people would do that punitively in the beginning. We feel that if there is an administrative action proposed, it is reviewed, it is reviewed by our regional regulatory administrators. It is difficult to discuss Mr. Earl's case because it is present already before us and there is a little disadvantage in that regard. But as a general matter, it is subject to review by a high-level management official in terms of-the violations may not even be the same. Just because it is the same individual what we seek an indictment for may not be the same thing we are seeking administrative action for. We have to keep that in mind. But we do have that review. I would be willing to review all the cases we have taken administratively against someone who has been in court. I don't think there are very many and, No. 2, we can furnish information if you feel that there is a pattern. But I don't believe there is. Senator DECONCINI. I would suggest that you submit that to us. Referring back to the Earl testimony yesterday, as you may have heard, he testified that he related in that testimony, related an occasion where he furnished BATF special agent Kavanaugh with information on subjects alleged to be dealing in illegal machineguns. 389 Mr. Earl said he believes he was being set up by ATF, possibly, since agent Kavanaugh refused to investigate this particular matter. Will you tell us why no action was taken on this information that was given to Mr. Kavanaugh by Mr. Earl? I see Mr. Kavanaugh is here. Mr. DICKERSON. Senator, Mr. Kavanaugh is here. I will be glad to make him available for your questions. Senator DECONCINI. Will Mr. Kavanaugh care to respond to that? Mr. KAVANAUGH. Mr. Chairman, Mr. Earl did call me. This has been approximately 5 or 6 years ago Mr. Earl is talking about. It was, as Mr. Earl said. He called me at home. He couldn't reach me there. It was on Saturday. He got me out on the rifle range. I spoke to him on the phone. He related to me that his former girlfriend, who was a beautician, called him on the phone wanting to sell-her boyfriend wanted to sell two machineguns. Earl asked me on the phone if this was a setup. I told him we didn't even know the lady at all. He then proceeded to tell me where they were going to be and we should go over there and look and they would have the guns in the trunk of the car. I told him there was no way, we had no probable cause to go anywhere and open anybody's trunk. If he would assist us and go with us on this thing, or even take me in when he went over to buy the guns, we would be glad to go with him. Mr. Earl said he felt ATF was setting him up. He didn't want to be in there. He said, "If I go over there with you and they have the guns you will arrest me." I assured him we would not do that. But he wouldn't go. I, then, went to the area and looked for the automobile that Mr. Earl had described to me. It was not in the area Senator DECONCINI. Have you or, to your knowledge, BATF had other dealings with Mr. Earl on the basis of information that has assisted in any inventions? Mr. KAVANAUGH. To my knowledge, my own personal knowledge; no, sir. I recall one other incident where Mr. Earl called us and asked us to come over because he said he had found some machinegun parts in his front yard. An agent went to the house and found a receiver for a Schmeisser. That is all it was, was just a receiver. All the other parts and everything were missing. Mr. Earl, at that time, again, felt that ATF was planting these in his yard and we were trying to get him this way. Senator DECONCINI. Going back to Mr. Earl, according to internal memoranda presented here yesterday, the registration records of BATF were woefully inadequate, at least at the time of the memoranda. Certainly the fact Mr. Earl was accused of this large number of unregistered guns based on bad BATF records raise serious constitutional questions in my mind. What have you done or are you doing to correct the situation? Senator McCLURE. I will want to ask Mr. Kavanaugh some questions, if he would wait. Senator DECONCINI. All right. 390 Go ahead, Mr. Dickerson. Mr. DICKERSON. Mr. Chairman, the memorandum which was brought up is a document which was released a couple of weeks ago. I authorized it to be released primarily because the memorandum was approximately 4 years old. Most of the issues identified as deficiencies in our records have been corrected since that time. I felt that its release would not raise any constitutional issue. We can find no instance in the years since that file was in effect that a lack of a record or failure for there to be a record has been the basis for a criminal activity or in any way affected a criminal activity case. I feel now, while the record is still being worked on, I am sure there is some duplication-and some parts in it, I feel certain the integrity of that record will withstand any scrutiny. Senator DECONCINI. Can you supply the committee with some demonstrative evidence or something of how you have corrected this? Mr. DICKERSON. Yes, sir; I would be glad to. In fact I have a memorandum here which points out each of the deficiencies brought up and what has been done to correct it. I would be glad to present that to you for your review, sir. Senator DECONCINI. Very good. Do you want to ask, Senator McClure? Senator MCCLURE. If I might, I would like to ask Mr. Kavanaugh two or three questions. I am not going to try to try the Earl case here today. This is neither the forum nor is it appropriate. But I think it raises some questions which need to be explored. Have any agents or informants attempted to plant evidence such as illegal guns or silencers on Mr. Earl or on his premises? Mr. KAVANAUGH. No, sir; they have not. Senator MCCLURE. Is the proprietor or manager of the Jewel Box Loan Co., or pawn shop in Phoenix, an informant of yours? Mr. KAVANAUGH. Not to my knowledge, sir. Senator MCCLURE. When you say "not to your knowledge," you are the agent- Mr. KAVANAUGH. Specifically of mine, informant, sir? Senator MCCLURE. Yes; and if not of yours, how about of BATF? When you say "not of your knowledge," you mean not of your personal knowledge. Could that possibly be a way to avoid saying, "He may be, but it is hearsay?"' Mr. DICKERSON. Senator, I am somewhat concerned about disclosure of informants in a forum such as this. I would be willing to discuss this with you in private but I am afraid we may be endangering someone here. Senator MCCLURE. I am afraid, since the question has been asked and you have answered in that fashion that it gives the implication that, indeed, the answer to the question is affirmative. Mr. DICKERSON. It is not affirmative. I don't know the answer to the question. Senator MCCLURE. I didn't want to leave it that way. Senator DECONCINI. If the Senator would like, I am sure we could 391 make arrangements for a particular audience between you and Mr. Dickerson as to the sensitive material along this line. Senator MCCLURE. I just want to complete the answer that Mr. Kavanaugh gave because I want the record not to be left in limbo on the point of whether or not he knows. When he said, "Not to my knowledge," I just want to know whether or not he has hearsay or whether he is giving a legal answer in terms of evidence that would stand up in court. Mr. KAVANAUGH. Senator, could I ask you to repeat your last statement there? I was conferring. Senator MCCLURE. Surely: I understand. I had asked you whether or not this proprietor or manager was an informant. And you said, "Not to my knowledge." Then, you had suggested that he was not of yours. I was trying to clarify the record with respect to whether or not your answer was intended to say you had no knowledge of the fact that this person was an informant in a technical legal sense that would stand up in court or whether or not you have ever heard it said he was an informant but you have no hearsay evidence that he was an informant Mr. KAVANAUGH. Senator, he is not my informant. I have never heard of him being an informant; no, sir. Senator MCCLURE. You never heard of him being an informant? Mr. KAVANAUGH. Yes, sir. Senator MCCLURE. Did Mr. Earl ever call you or BATF to report an agent or informant leaving an MP-38 in Mr. Earl's house? Mr. KAVANAUGH. Mr. Earl never called me. I never spoke to Mr. Earl regarding anyone leaving a P-38 at his house. Senator MCCLURE. Do you know of any such incident? Mr. KAVANAUGH. No, sir; I do not. Senator MCCLURE. Mr. Dickerson, do you? Mr. DICKERSON. No, sir. Senator MCCLURE. Would your records indicate whether or not- Mr. DICKERSON. I am sure-if it were so, I am sure our records would reflect it. I will try to determine that. Senator MCCLURE. Mr. Kavanaugh, my questions said, "Did he leave an MP-38?" Your answer was, "I know of no incident when he called about a P-38." Was there a distinction in your answer that was intended to- Mr. KAVANAUGH. No, sir; my answer still stands. I know of nothing. Senator MCCLURE. All right. Thank you. Do you know a Mr. William Brady? Mr. KAVANAUGH. Yes, sir; I know Mr. Brady. Senator MCCLURE. Who is Mr. Brady? Mr. KAVANAUGH. Mr. Brady is a retired agent of the Bureau of AlcohoL Tobacco and Firearms. Senator MCCLURE. Did you serve with him? Mr. KAVANAUGH. Yes, sir; I did. Senator MCCLURE. Did you discuss matters with Mr. Brady that were common to your enforcement responsibilities in that area? Mr. KAVANAUGH. Yes, sir; we did. 392 Senator MCCLURE. Would you think that if Mr. Earl had contact with Mr. Brady in regard to the incident I just referred to that he would have discussed it with you? Mr. KAVANAUGH. I believe it could be a possibility; yes, sir. Senator McCLuRE. But you are not certain whether he would or not? Mr. KAVANAUGH. No, sir. Senator MCCLURE. You are not familiar with any case in which Mr. Brady may have been informed by Mr. Earl about an agent or informant leaving an MP-38 in his house? Mr. KAVANAUGH. No, sir; I am not familiar with it. Senator MCCLURE. Or that Mr. Brady, with William Suit, went to Mr. Earl's house in response to his call? Mr. KAVANAUGH. No, sir; I am not familiar with it. Senator MCCLURE. Mr. Dickerson, I wouldn't assume you would know without reviewing your file whether that is correct. Mr. DICKERSON. I am not familiar. Senator MCCLURE. Would you review the records of your agency and determine whether or not you can answer those questions? Mr. DICKERSON. I will certainly do that, sir. Yes, sir. Senator MCCLURE. Mr. Kavanaugh, prior to the raid on Mr. Earl's business, did you or any BATF agents make plans for handling publicity? Mr. KAVANAUGH. I did not make any plans for any publicity and I know of nothing-I was not involved in the raid at all. Senator MCCLURE. You were not involved. But you were working for BATF at that time? Mr. KAVANAUGH. Yes, sir. I was working for BATF. Senator MCCLURE. How many agents were in your unit or in the area where you were? Mr. KAVANAUGH. At that time, sir, there was three of us. Senator MCCLURE. How many were involved in the raid on Mr. Earl's business? Mr. KAVANAUGH. I don't know, sir. Senator MCCLURE. Were any of the three of you? Mr. KAVANAUGH. No, sir. Senator, at the time of the raid, as you say, on Mr. Earl's residence, I was in Washington, D.C. Senator MCCLURE. You weren't there at that time? Mr. KAVANAUGH. No, sir. Senator MCCLURE. How long had you been away from that area? Mr. KAVANAUGH. I believe the raid was in 1978. I am not sure 1977, 1978. I had been away almost 2 years. Senator MCCLURE. Thank you. Mr. Dickerson, I wonder if you might provide for the record, after having reviewed the records, what plans had been made for handling publicity, by whom those plans were made and what plans were made? Mr. DICKERSON. I will be glad to do that, Senator. Senator MCCLURE. Thank you. Thank you, Mr. Chairman. Senator DECONCINI. Mr. Dickerson, regarding the Moorhead case, 393 who was the agent responsible for this operation, do you know? Or does your deputy know? Mr. DICKERSON. What was the name? Senator DECONCINI. The Moorhead case. He was one of the witnesses yesterday, from Connecticut, I believe, or New Hampshire, who was arrested for having a machinegun or an M-14, and was then dismissed and the judge apologized for it. Mr. DICKERSON. I do not know the name of the agent who did that specific thing. I am informed by Mr. Keathley it was a group of agents out of our Boston office. Senator DECONCINI. Was there any administrative action taken, disciplinary action taken toward any of the agents involved in the Moorhead case? Mr. DICKERSON. No, sir; there was none. Senator DECONCINI. I realize you were not there, nor was Mr. Davis, but is that case-do you feel as a result of the testimony yesterday that that case is worth looking at, how that could have occurred? Maybe there are some mitigating circumstances on behalf of ATF. But I wonder if you have any plans on reviewing that case and why that action was taken that prompted a Federal judge to apologize for the action when at the same time dismissing a verdict? Mr. DICKERSON. Mr. Chairman, I have reviewed that case. I have not had it investigated. I was here when Mr. Moorhead testified yesterday. I can only say that under our current instructions, instructions now in place, that type of action couldn't be taken today. It may have been technically correct at the time it was taken. But I do feel it was extremely poor judgment. I cannot help but feel-though I wasn't here, I do feel responsible for the activities of this agency. I think I would do as you and Senator McClure would have done, I would apologize to Mr. Moorhead for these actions. Senator DECONCINI. What I am interested in doing is, what action, besides reviewing any dealer investigation, have you taken or has the agency taken to prevent such incidences? Mr. DICKERSON. Our current instructions, which I would be glad to read to you, would prevent this type of thing from happening. Senator DECONCINI. Do you have them there? Mr. DICKERSON. Yes. Senator DECONCINI. If you would like to submit those the record, that would be satisfactory. Mr. DICKERSON. I would. Basically, our policy with regard to that type of thing is, when we identify a weapon of that nature for which possession is illegal, to try and secure voluntary abandonment of the weapon, to request that the weapon be modified, for example, if it is a VFW post that ha a cannon outside, make it so it is not operable. In many cases, we can arrange for donation of a weapon to a local museum or this type of thing. We would actually go for seizure only in a very extreme case and will arrest only if there is criminal intent. I don't think the law specifies that but only if we thought there would be some danger of harm to the community or in fact the weapon would be used for criminal intent would we go for a violation. 394 Mr. DAVIS. The only thing that amazed me more about that testimony than the fact the BATF arrested the person in that investigation is that the U.S. attorney authorized the prosecution. >From all the facts that came out yesterday- Senator DECONCINI. I would agree with you, it was a lousy case for a U.S. attorney to authorize. However, my next question which you haven't answered is, Is there any plans on your behalf to take any disciplinary action toward the agents involved in such a flagrant violation which I think everybody will agree was? I might very well ask the Attorney General the same question. Mr. DICKERSON. I will have it looked at. The problem is, the instructions were written in 1977, after this took place so there may not be any violation of instructions or guidelines available at that time. But I will look into it. Senator DECONCINI. You say you are not familiar with the guidelines that were available at that time? Mr. DICKERSON. No, sir. The ones I just read you are in effect- Senator DECONCINI. At the time of the Moorhead incident were there guidelines you know of in existence for agents? Mr. DICKERSON. There were guidelines, I am sure. I am not sure what they are. I would be glad to supply them. Senator DECONCINI. Would you supply those? I would like the record to show what they were and what amendments, if any, have been made. Mr. DAVIS. I think there are two kinds of situations where we ought to draw a distinction. One is where it was a bad case. We shouldn't have wasted anybody's time on it in terms of the government's time. Two, in a situation of whether it is a good or bad case, there is some violation of law. There is some instance of abuse. I think in the first situation as opposed to really a discipline issue, it is a management issue to make certain that agents know what are the kinds of cases that they will be rewarded for and what are the kinds of cases they know are not going to get them anything. We must also avoid the numbers game. The number of cases does not establish quality. The second situation as opposed to the first is where discipline is very important. While I share the views about the Moorhead case, I don't know if even looking back it is a disciplinary form of misconduct. It is stupidity as opposed to misconduct. Senator DECONCINI. I could argue that a little bit. But I do agree with you, you know, the attitude of the agency and the guidelines are going to be very influential on agents' actions. But on the other hand, when I was a prosecutor, if one of my deputies did something wrong, I took disciplinary action including firing them if necessary; in one instance, not only firing him but having another county attorney prosecute him. That was a very difficult thing to do because I knew the person but the person was out of hand. My question to either one of you is, Have any agents who have been involved in arrests, to your knowledge of BATF, be either disciplined for overzealousness or has legal action been brought against them for violating civil rights? 395 Mr. DICKERSON. Mr. Chairman, I cannot answer that right now. I will try and supply that. Senator DECONCINI. Will you supply that? Mr. DICKERSON. I am not aware of any case in which the BATF was charged for violation of civil rights. Mr. DAVIS. I think this is the kind of situation I referred to in my opening statement that both we in the Department and Mr. Dickerson feel that enhancement of the internal affairs function is important And we are not satisfied. We are determined to see that that is satisfied. Senator DECONCINI. I have one or two more questions. Then I will let Senator McClure have the floor. Yesterday, Mr. Robert Jensen gave testimony that agents were in his business checking his firearm records on the average of once or twice every 2 weeks. Mr. Jensen said he had no idea what they were looking for and believed them to be on a fishing trip or some general harassment. Why are these agents spending so much time in Mr. Jensen's records or any other licensed gun dealer? Mr. DICKERSON. Senator, in my statement I pointed out one of the functions we perform is tracing of weapons which have been used for criminal purposes. Most of the 160,000 dealers we work with are very cooperative in that area. It was necessary to send our personnel over to Mr. Jensen's place of business to look over his records. I did have someone call our local people during this morning to find out if there were other instances going in at random going in to check his records. Again, I could not identify any. Senator DECONCINI. You are saying they are not that frequent? Mr. DICKERSON. I am saying other than these instances going into check the record for traces, I am not aware of other random visits. Senator DECONCINI. Can you supply us with how many visits you are knowledgeable of that the BATF has gone into Mr. Jensen's- Mr. DICKERSON. Be very glad to do so. Senator DECONCINI. [continuing]. During the last 12 months. Do you keep records of that? Mr. DICKERSON. I think we can identify that, Senator. If we can, I will supply that. Senator DECONCINI. Have you found Mr. Jensen cooperative? Mr. DICKERSON. I don't know Mr. Jensen personally, Senator. Senator DECONCINI. I mean from the agency's point of view? Mr. DICKERSON. I just wouldn't be able to answer that other than the fact as it relates to the present. Senator DECONCINI. I have only one other question right now. How is a gun collector able to tell when he is dealing without a license, as opposed to merely a casual sale? Is it the Bureau's policy to make statistics by setting up collectors or just exactly how do you answer the constant criticism of no definitions for you to follow yourself, and certainly no definitions for the public and dealers to really know? 396 Mr. DICKERSON. I could give you a legal answer I have in my briefs here as to how the courts would define it. But after listening to testimony yesterday, I would rather answer it by saying that if anybody can help us come up with a definition, I will work with anybody. In our agency we have expertise. If we agree to come up with a satisfactory solution to that problem, I certainly would like to come up with it. We will take, we will publish, we will solicit comments, as long as it is in the line of the legal constructions we have. Senator DECONCINI. Are you presently working on that now? Mr. DICKERSON. Not presently. Senator DECONCINI. I have here a memorandum from the ATF. I think it is Circular No. 5300.1, dated January 5, 1978. Referring to it, you go down to engaging in business. It is your internal memorandum. It says the term "engaging in the business" is not defined in the law or regulations and is not susceptible to a rigid definition. Determinations as to whether or not a person is engaged in the business must be made on a case-by basis. Then it goes on to say some other things. However, a single sale or act may constitute engaging in the business when accompanied by additional circumstances. I realize the difficulty when the law is not clear as you point out. But it seems to me it would assist legitimate licensed gun dealers if they had a more definitive interpretation of whether or not they were engaged in business as well as the public. I wondered if your agency, since you have taken the directorship, has moved to try to refine this or define it. I realize it is difficult. I understand that. But I can certainly sympathize with the witnesses here that have constantly brought up this particular problem. Mr. DICKERSON. Yes. We have not initiated anything. I certainly am aware of the problem. We will review it. Senator DECONCINI. It seems to me, for whatever it is worth, that not having it defined is subject to abuse by either side. If the dealer wants to fudge on it, it is easy for them to fudge on it. If a criminal wants to try to use it as a defense, it is there to be shot at. Certainly, ATF has been under enough criticism, I suspect, as to your own interpretation, as to when it is and when it is not. Mr. DICKERSON. The court definition is, "An activity occupying one's time, attention and labor for the purpose of livelihood or profit." While profiting from the sale of may not be proved a willingness to deal for profit, use of a facility and greater degree of activity than occasional sales by hobby must be shown. It has got to be more than just a sale. There have to be other conditions. But I do agree. Senator DECONCINI. That is inconsistent with this memorandum. Mr. DICKERSON. Yes. Senator DECONCINI. Mr. Dickerson, that is all the questions I have at this time. I would like to submit some written questions to you. Also, I point out that we have made some requests for certain documents. We have received a letter in response indicating that you agree to supply them. 397 I would just like to call your attention to Mr. McPike, my counsel. If your appropriate people would furnish him with our requested information. I have no further questions. I want to thank the witnesses for their candidness and willingness to address this problem as not merely a definitive problem but one which will yield an improvement. Senator MCCLURE. I might note in the letter of response on request for documents, there are a couple of items where they said, "If you really want them, we will give them to you." I assume the comment was, "Yes; we really want them." Mr. DICKERSON. Counsel might come down and review the documents and see what they want. They are certainly welcome. Senator DECONCINI. I am aware of protecting informants in pending investigations. But I don't think the investigation we requested dealt with that. If so, I would be glad to be proven otherwise. Senator MCCLURE. There were two areas you suggested it would be more work than you thought it was worth and you hoped he would come down and decide it wasn't worth the effort, worth your effort. I might just indicate in regard to one of those, how large is the reference collection of firearms? Mr. DICKERSON. Approximately 4,000 weapons. Senator MCCLURE. It says here it would take you several weeks to copy the record with regard to those firearms? Mr. DICKERSON. Yes, sir. Senator McCLURE. It would take several weeks to copy the records on 4,000 weapons? Mr. DICKERSON. That estimate is based on one person working full time. Senator MCCLURE. It would take one person working full time several weeks to give us the information on 4,000 firearms? Mr. DICKERSON. There are card records; yes, sir. If we can do it faster- Senator MCCLURE. I would certainly hope you can. If you cannot work any faster than that, you are going to fall behind on all the rest of your work. If I couldn't work any faster than that, my desk would be worse than it is and it is bad enough now. Mr. Davis, you have been with the Treasury Department less than 2 years; is that correct? Mr. DAVIS. That is correct. Senator MCCLURE. Have you been confirmed by the Senate? Mr. DAVIS. No. I am an assistant secretary under the President's authority to designate officials by whatever title for executive level positions. That is a statutory authority he has. He has created the position of Assistant Secretary for Enforcement and Operations under that statute that is published in the Federal Register. That makes me a secretarial appointment. Senator MCCLURE. It is a secretarial position, even though it bean a title that would look like something else? Mr. DAVIS. As I said, it is under statute authorized by the Congress. Senator MCCLURE. I understand. 398 Mr. Davis, you also indicated at the beginning that you have no attitude pro or con on the issue of gun control? Mr. DAVIS. That is not what I said, Senator. I said how one reacts to these issues is unrelated, really, to how one feels about gun control. And on that, I feel very strongly. Senator MCCLURE. That is a little different than I had understood you to state it the fast time and, indeed, may be more accurate of your view. Mr. DAVIS. And I believe the transcript should reflect that is what I said the first time. Senator MCCLURE. You do feel very strongly about gun control gun ownership? Mr. DAVIS. No. I think my views vary on particular issues. I think I have particular views and particular suggestions and proposals. I don't consider myself a doctrinaire in any particular way. I didn't participate in any particular organization before I joined the Treasury Department or took any position on the gun control issue. I like to think that I look at particular proposals and try to make a judgment as to whether they are sensible or not. Senator MCCLURE. You are not hostile to the idea that people have the right to own firearms? Mr. DAVIS. No. Senator MCCLURE. And that if they want to buy or own firearms, that is a right they have under the Constitution and you don't quarrel with that constitutional privilege; is that correct? Mr. DAVIS. Let me leave it this way, because I have read so much on the legal arguments, which I never studied, on the constitutional issue, I prefer to say I certainly have no aversion to private ownership of firearms. I don't think I ever proposed anything that would suggest that. Senator MCCLURE. I wasn't necessarily trying to enlist you on the pro side of the constitutional argument although I would have been very happy had you confessed that you had read the constitutional provision. Mr. DAVIS. I have read the constitutional provisions. But I also have seen and referred to a whole host of cases that seem to go all over the lot. As I say, I think it would be fair to say that I have no aversion whatsoever to the notion of private ownership of firearms. Senator MCCLURE. You were quoted at one time in regard to the disposition of surplus M-1 rifles as saying that there are plenty of guns available in this country without selling M-l's, M-14's, or any other M's, and this is Treasury's view, that it is worth destroying them. Mr. DAVIS. I think I suggested over a series of two letters, that I did prefer from our policy's perspective that in the Army's civilian marksmanship program, which in one of my letters I said we are not taking any position one way or another opposing that program, that we thought perhaps it might be more wise if you wanted to sell the .22's and use the M-1's on the ranges. I might say my personal views in terms of some of the M's- though there is a big difference in the varieties of those in regard to the M-1 and the M-16-in fact, come about from particular cases I had when I 399 was a prosecutor in which I did see one very notorious case where criminals used those kind of weapons in a very destructive way. In one situation they injured over 10 people in a bank with that firearm. I have no problem with people having the opportunity to buy weapons. I simply suggested at that time it would seem to me it would be just as well that those weapons were used as target practice in those ranges and that other weapons were sold. Senator MCCLURE. That is an answer that troubles me in a broad sense because it indicates your aversion was toward the guns rather than the people who were using them. That gets back to the basic attitudes of people who see the good in suppression of firearms. Mr. DAVIS. I will make one confession to you, Senator. That is, while I certainly have no problems with wide varieties of gun ownership, I must say, sometimes I do wonder the need for people to be able to buy machineguns and the like that for private use. Maybe I can be educated. But it seems to me that there certainly are plenty of other weapons. If that troubles you, I am sorry. I am sure when I got here that you and I were not going to agree on policy issues relating to everything that we have done. Senator MCCLURE. I had hoped that we wouldn't arrive at that conclusion before we even opened the door to the conversation. Mr. DAVIS. Only because I am an avid reader of your speeches. [Laughter.] Senator MCCLURE. I appreciate that. I wish you were an avid follower of them. [Laughter.] They are not voluminous and it didn't take me 4 weeks to write them all. [Laughter.] Mr. DAVIS. I won't respond, Senator. Senator MCCLURE. I understand that. Mr. Dickerson, you have indicated that you think that while the recordkeeping may have at the time the memorandum was issued be bad, that it is now not perfect, but sufficiently good. Yet at the time of the Curtis Earl case in 1978, it was grossly in error. Mr. DICKERSON. As I indicated, I will submit for the record the memorandum which points out what our policies are. Basically, it is like any other manual record which has clerical errors, but the types of errors it has we do not think are critical in a criminal case situation. We have made duplicate copies of certain things. Maybe we have lost the reference documents, this type of thing. I believe the integrity of the overall record is sufficient for criminal enforcement purposes. Incidentally, we are going to continue to improve that. I now have plans and will be having somebody working on automation of those records-when I say that that may be a little quicker, automation is really not a guarantee of accuracy either, but we are going to continue to improve that record. Senator MCCLURE. I am troubled though because the record as it stands now-I realize the Earl case is still pending on the administrative appeal-were grossly in error with respect to the guns in his inventory at the time of the raid. I don't know the basis of the administrative action. But, apparently, 400 administrative action was taken and is still being taken to revoke his license. At least a part of the attitude, a part of the record is based upon the perception that he had guns that were not properly registered, when, as a matter of fact, a careful look at his record will indicate they were indeed and there is a conflict- as a matter of fact, his records were more complete and more accurate than yours. I will not ask you to comment on that at this time because I do know that it is in the administrative proceedings at this time. But if you admit that they were wrong at one time, and you have suggested that the actions were chosen were unwarranted, and you have indicated that the practice of no-notice inspections of licensed dealers was an abusive practice, if you feel that those matters needed correction, what about all of the citizens whose rights have been affected by those actions during the years in which those actions were taking place before you got there? Mr. DAVIS. Senator, I will let Director Dickerson additionally respond as I am sure he may want to respond. I think it is fair to say that in not every instance where we have made a correction, which we believe to be an improvement in policy, that every time that policy was not in effect that every other way was an abuse or was a violation. That would have to be a variable thing. The whole notion is to try to put policies in areas, not where every time it was problem, but where it might be probable that problems could arise. I sit here in an awkward position, as the Director does. I think the people I have gotten to know at the Bureau, sitting at this table, I have an enormous regard for. I cannot be in a position of saying people who held official positions before were right or wrong, in terms of whether they should or should not have taken particular actions. All I can say is, as we look at problems, if we see an area where, as I say every case is a problem, but where there might be a problem, and if we can come up with a sensible, sound policy so that we will have better law enforcement, we are perfectly prepared to do that. Senator MCCLURE. Do you care to make any further comment? Mr. DICKERSON. Only to reemphasize with regard to the files of title II weapons that I have checked and been assured there has never been a case in which the issue was such that those files would have been important to determine the outcome of a criminal case. Senator MCCLURE. You have reviewed all of the files? Mr. DICKERSON. No, sir; I have not personally reviewed all the files. Senator MCCLURE. But you have had all the files reviewed? Mr. DICKERSON. The statement I made was, I have reviewed with my people and we do not know of any instance. I will ask counsel to respond. Mr. DESSLER. We have spoken to the individuals who are in charge of that record. We have never been made aware of a case, a specific case, in which an individual had presented a registration form to the Bureau which our records did not show the registration. Senator MCCLURE. That is quite different than the testimony we got yesterday; unless that statement was so carefully couched as to avoid 401 saying that you know of instances where they didn't present them to you. Mr. DESSLER. We have no criminal cases we are aware of where an individual has claimed that he had the report registered and that we could not find that record in the registration. Senator MCCLURE. No criminal case has been filed? Mr. DESSLER. That is correct, that we are aware of that an individual was convicted for a criminal case. Senator MCCLURE. How about those in which actions were started and either were dismissed or resulted in an acquittal? Mr. DESSLER. I am not aware of any such case. In every one, the National Firearms Record requires that the individual possessor himself retain a copy of the registration form. So in every one of those instances he would have to have in his possession a copy of that form. If he had a copy of that form in his possession, we would not have brought a case against him. Certainly, if we began such a case, we would have- Senator MCCLURE. It isn't just those forms that are in question here. Mr. DESSLER. What forms are in question, sir? Senator MCCLURE. It isn't just simply a question of whether or not you are aware; Mr. Dickerson indicated you have reviewed the files. You are telling me you are not aware of any. There is a vast difference between being aware after review. Mr. DESSLER. We have spoken to the individuals that were in charge of that record -and they were not aware of any situation in which a registration certification was made in which the individual claimed that the weapon was registered. Senator MCCLURE. I understand what you are saying. But Mr. Dickerson indicated you have undertaken a review. What you say is, you have asked them if they are aware. They say they are not aware. Mr. Dickerson, I would say there is a vast difference between the two? Mr. DICKERSON. There certainly is; yes, sir. Senator MCCLURE. I am concerned whether or not some of the people who have had criminal actions brought against them were wrongfully subjected to criminal actions based upon erroneous records. I am concerned whether or not there have been investigations that resulted in either legal proceedings or administrative proceedings that caused expense to people based upon the inaccurate records. I would take it that the answer is really not broad enough to say that. Mr. DICKERSON. I have been assured they are not taking place. I will n review it. I will submit for the record exactly what the situation is, Senator. Senator MCCLURE. I have a number of questions which I want to submit for the record, which I hope you can respond to in writing. You have been very responsive this morning. I think we all are not so much concerned about what happened in the past as we are concerned about what will happen in the future. But we cannot just ignore what happened in the past either. I think we are aware of cases in which people have been intimidated by the 402 multiple counts. where they felt there was no violation involved and where they were given the opportunity of facing several indictments or pleading to a misdemeanor or submitting to an administrative action. I think the record is replete with that and can be made much more replete with that kind of situation in the past. I am not unfamiliar with the problems of law enforcement but neither am I unfamiliar with the abuses of the rights of individuals where there may be overzealous action on the part of some. The history of the abuse of individual liberty is the history of the abuse of power by governments, many times well-motivated governments who thought they were doing the right thing and intended to but, nevertheless, abused individual liberty. Mr. Dickerson, from your review of the files, from your looking at what has happened, will the agency make a change in the use of strawman cases? Mr. DICKERSON. I am personally reviewing every one of those cases. We have not used this strawman technique in the past 6 months. It is a technique which is justified being used under some circumstances if there is very good evidence of criminal activity taking place, other than what we might be deemed-as I pointed out, stolen guns, this type of thing, it might be a reasonable technique to use and have good guidelines. We do have guidelines out. As Mr. Davis mentioned, under our own internal guidelines in under-cover operations, that a person has to be forthright in coming forward with this strawman technique I can assure you will be used, has been used recently and will continue to be used only in very limited circumstances. Senator MCCLURE. You have changed your dealer form by inserting on the back of the forms some information with respect to strawman, with so-called strawman violations? Mr. DICKERSON. Yes, sir. They are occurring in industry circulars. You get out in the industry to find what that type of transaction it is and point out it is an illegal transaction. We cannot just completely turn our eyes to it. As Mr. Davis pointed out, it is a way used by criminals or persons who shouldn't use guns to obtain guns. The Son of Sam case is a classic example of it. I would hope to control it by an educational process and by cooperation of gun dealers, then it would be necessary to take administrative or criminal action only as a last resort. Senator MCCLURE. In one case in which the Federal district judge was very critical of the use of strawmen, the appropriate instructions were given to gun dealers in that State and, as I recall the record indicates that following that for a period of 3 years, there has not been a single violation. This would indicate that, as a matter of fact, the dealers are aware of how you would expect they avoid that difficulty. But it is only where they did not know what it was that you were able to make cases against them. Mr. DICKERSON. We are going to make every reasonable effort to make sure that is clearly understood. Senator MCCLURE. That is particularly troublesome in the case where 403 identical agents go in and, say, "Surrender your license, you are not a dealer." And in exactly the same areas, the same agents go in and purchase enough guns to then constitute the dealers subject to prosecution for failure to have a license. Mr. DICKERSON. Most instances where a dealer license is revoked or not renewed are because the amount of business he conducts is so limited. In some cases people told us they wanted a dealer license because it permits them to purchase wholesale; he gets certain benefits. But in the cases cited yesterday, I should point out where the dealer's license was not given back to him, I think it was the case of failure to renew, it was a situation where he sold only three weapons over a period of a number of years, as I recall. The instance where a person was charged for dealing without a license was the instance where three purchases were made within a period of months and there were other mitigating circumstances. Senator MCCLURE. I can understand if there were other circum- stances. But there are also numerous situations where the record doesn't reveal mitigating circumstances. Mr. DICKERSON. I understand that. I think this whole problem is a difficult one. I don't know that a numerical number is an answer to it. But who is going into a dealership is certainly something we will try to find. Senator MCCLURE. Can you tell me when the industry circular purchases will be ready? You told me that you are planning to do it in a letter to Mr. Hardy dated March 1. You indicate it will be done in the near future. Mr. DICKERSON. Senator, it is being reviewed by the top management staff now. So it should be very soon. Senator MCCLURE. Very soon? That is a flexible term. Mr. DICKERSON. I will promise to get it out within 30 days. Senator MCCLURE. Within 30 days. I have to remember, too, that BATF, following inability to get criminal convictions in a raid which has resulted in confiscation of firearms, refused to return the firearms. And the BATF has, upon occasion, without bringing any charges at all, retained firearms that were seized in a raid and refused to return them. In one instance, at least, BATF refused to return the firearms even after they were under a court order to do so. It was not until the judge had issued a contempt citation that the firearms were returned. How do you justify that? Mr. DICKERSON. Senator, there are certain instances where a person is proscribed by law from having a weapon in which we might seize that weapon from him and not take criminal action. There may be other instances where- Senator MCCLURE. Let me say on the record, that is not the case in the ones I am talking about. Mr. DICKERSON. There is an administrative process. If you will make those cases available-I am aware of the one case in which we felt there were legal reasons for not initially complying with the court action. We have a right, sometimes, to go into court to provide our legal views. We did surrender the guns as we were directed to do so. I am not sure of all the issues of the case. 404 Senator MCCLURE. In that instance, the court had ordered the return. And without any legal intervention on your part you just failed to abide by the court order. Mr. DICKERSON. The process is, before weapons are normally seized there is a forfeiture action taken to keep the weapons or to return them. In this case they directed us to return them. We took our own appeal action because we felt it was the proper procedure to take. The court considered it and directed us to return them and we did return them. There are times when we may feel we need redress for the courts. Senator MCCLURE. Are you telling me your failure to comply with the court order was a result of your administrative action? Mr. DICKERSON. I think it was a result of our legal appeal against the legal determination by the court. Mr. DESSLER. In that particular case, the individual did file a motion for the return of the seized firearms. At this time the court, who initially issued the search warrant decided no probable cause existed. But the agency did not immediately comply with the order because we maintained that the original affidavit which supported the request for a warrant set forth sufficient circumstances to permit a finding of probably cause. We sought at that time to seek higher judicial review of that return. Senator MCCLURE. Did you file an appeal of the return order? Mr. DICKERSON. I am not sure whether we did. Senator MCCLURE. I think the record would show you did not. Mr. DICKERSON. That is right. [The information follows:] 405 DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, D.C. 20226 Honorable Dennis DeConcini United States Senate Washington, DC 20510 Dear Senator DeConcini: During the July 12, 1979, Senate Appropriation Subcommittee Hearings, this Bureau's investigation into the activities of Mr. Gus Cargile, Jr., and our subsequent disposition of firearms seized from Mr. Cargile was the subject of some concern to the subcommittee. It was alleged that ATF refused to return guns seized from Mr. Cargile until cited for contempt by a Federal judge. I apologize for not being fully conversant about this case at the time of the hearings. However, I have looked into this matter and I feel it would be appropriate to provide you with the circumstances relating to this investigation and seizure. ATF became aware of Mr. Gus Cargile, Jr., when information was received that Mr. Cargile, along with a group of associates, was dealing in firearms in large quantities at the Padre Staples Mall Flea Market in Corpus Christi, Texas. On September 12, 1976, special agents went to the mall and, through observations, confirmed that Mr. Cargile was selling firearms. Further investigation revealed that neither Mr. Cargile nor his associates possessed a Federal firearms license. on September 22, 1976, Mr. Cargile was contacted by ATF agents and advised that to legally deal in firearms, he must obtain a Federal firearms license. Mr. Cargile stated he understood and would comply with the law. Subsequent to the initial contact with Mr. Cargile, a confidential informer advised ATF special agents that Mr. Cargile and his associates were still dealing in firearms. The informer stated that Mr. Cargile was doing business as Squareshooter Associates. He said that Mr. Cargile had business cards printed in Spanish and on his frequent trips to Reyonosa, Mexico, he advertised extensively. Mr. Cargile particularly emphasized that he would sell firearms to aliens in the United States and no records would be kept of the sale. On October 9, 1976, based on this information and considering previous contacts and observations, an 406 investigation was initiated of Mr. Cargile and his associates. On October 9 and 10, 1976, Mr. Cargile and his associate, Mr. Alvon V. "Sonny" Harmon, were contacted at the Goliad Hoe-Down Festival in Goliad, Texas, on three separate occasions by three undercover special agents. The agents purchased a total of four firearms from Mr. Cargile and Mr. Harmon. These sales were made by Mr. Harmon in the presence of Mr. Cargile. Both men stated on all three occasions that the firearms belonged to Mr. Cargile. Mr. Cargile told the undercover agents that ATF had warned him to get a firearms license. He also stated that he had $50,000 worth of firearms. On November 6, 1976, at the Pasadena Gun Show in Pasadena, Texas, Mr. Cargile and Mr. Louis Pugh, an associate who is a convicted felon, sold an undercover special agent two pistols. On November 21, 1976, the undercover special agent called Mr. Cargile and Mr. Cargile asked him to come to his residence in Corpus Christi. When he arrived, Mr. Cargile showed him his stock of over 100 firearms. Mr. Cargile told the undercover agent that all but two were for sale. On November 24, 1976, U.S. Magistrate Phillip A. Schraub found sufficient probable cause to issue a Federal search warrant for the residence of Mr. Gus Cargile, Jr. On that same date, November 24, 1976, ATF executed the warrant and a total of 186 firearms along with firearms records were seized. Of the 186 firearms seized, one was a machinegun which was not registered to Mr. Cargile as required by law. One hundred and three of the firearms had price tags attached and 95 had coded tags attached. In addition to the evidence discovered in the undercover investigation and subsequent search, it was also determined that between June 8, 1974, and May 8, 1976, Mr. Cargile purchased a total of 49 firearms from various dealers. He only had four of these firearms in his possession on November 24, 1976. on February 10, 1977, ATF recommended to the United States attorney that Mr. Cargile be prosecuted for illegally engaging in the firearms business and illegally possessing a machinegun not registered to him as required by law. Sworn statements relative to Mr. Cargile's alleged illegal firearms activities were obtained from 11 private individuals and included in the investigative report. Statements from two of Mr. Cargile's associates included the following: Alvon V. "Sonny" Harmon: "During late August or early September 1976, I made a deal with Cargile to take several of his firearms 407 more or less on a consignment basis - that I would pay him 10% above his cost of the firearms or 80% of the price he had on the tag." "When I received the firearms from Cargile we agreed that I would sell the firearms and pay him our previously agreed price. In order to understand how much I would owe Cargile, he explained his coding system to me. Each firearm, or at least most of them, had a price tag attached which showed not only the retail price, but showed, in code, the price Cargile paid for that particular firearm." "On December 2, 1976, I had an occasion to talk with Cargile on the telephone at which time he told me I would probably be visited by agents of ATF who would want me to make a statement. He told me not to make any statement without first talking to a lawyer. He further suggested that I use his lawyer, Mr. Mulhallen, and that he would pay the cost and we would settle later." Les Shook: "In the past year, I have sold approximately thirty to sixty firearms for Cargile, but I have no idea of the number of firearms that I have traded or purchased for him." "Cargile and I discussed that an agent with the Bureau of Alcohol, Tobacco and Firearms visited him at his place of business. The agent informed Cargile that he was in the firearms business and must obtain a license if he continued to deal in firearms. Cargile and I decided that we would continue to deal in firearms without a license by having our friends sell firearms for us." The firearms that were seized from Mr. Cargile were properly maintained and stored while in ATF's custody. At no time were these firearms deliberately mishandled or abused. On March 1, 1977, Mr. Cargile filed a motion for the return of the seized firearms. The hearing on this motion was held on March 10 and 11, 1977. On March 14, 1977, Magistrate Schraub then found that no probable cause existed for the issuance of the search warrant and ordered the return of all the firearms, except the machinegun, to Mr. Cargile. On March 16, 1977, ATF recommended to the United States attorney that he initiate proceedings to stay the effective date of the Magistrate's order pending an appeal. On this same date, ATF authorized the United States attorney to initiate judicial forfeiture proceedings against the seized firearms. 408 On March 17, 1977, the United States District Judge ordered ATF to show cause why it should not be held in contempt for not complying with the magistrate's order. On March 24, 1977, a hearing was held at which time the United States District Judge ordered ATF to comply with the prior order of Magistrate Schraub. On that date, all seized firearms, with the exception of the machinegun, were returned to Mr. Cargile. The total time elapsed from the date (March 18, 1979,) when the Magistrate ordered the return of the guns until the date they were actually returned was 10 days. This was within the time period allowed for the government to appeal that order. At no time was ATF held in contempt of court. I am confident that this Bureau's seizure, handling, and subsequent return of Mr. Cargile's property was in strict compliance with its statutory authority and the Rules of Criminal Procedure. If I can provide any further information in this matter, please do not hesitate to contact me. Sincerely yours, [signed G.R. Dickerson] Director 409 LETTER FROM NEAL KNOX NATIONAL RIFLE ASSOCIATION OF AMERICA INSTITUTE FOR LEGISLATIVE ACTION 1600 RHODE ISLAND AVENUE WASHINGTON, D.C. 20036 September 10, 1979 The Honorable Dennis DeConcini United States Senate Washington, D.C. 20510 RE: BATF Director's letter/Cargile incident Dear Senator DeConcini: The version of facts outlined by the Bureau of Alcohol, Tobacco and Firearms would make it seem that they had a perfect criminal case against Mr. Cargile for dealing in firearms without a license. The very strength of their alleged case bets the question of why they were mysteriously unable even to obtain an indictment, much less a conviction; did not chose to commence a forfeiture proceeding; lost a law suit to Mr. Cargile in which the judge ordered them to return the firearms since they could not even prove "probable cause" that a violation had occurred; and decided that it was wisest not to appeal that finding. An examination of the court's opinion and the transcript of the hearing in that case shows that the reason is simple: The version of facts alleged by the BATF was conclusively proven to be false or misrepresented in virtually every detail; at the conclusion of the hearing, after hearing both Mr. Cargile and the BATF witnesses, the magistrate ruled that "the affidavit and warrant challenged, together with the testimony heard, do not persuade this court that probable cause existed for the issuance of the warrant. The seizure of the property was, therefore, illegal." I attach to this correspondence a copy of that ruling of the court. Since the ruling disposes, item by item of the version of the facts claimed by the BATF in its letter (noting, for example, that contrary to the claim that the BATF received information that Cargile "was dealing in firearms in large quantities at the Padre Staples Mall", that Mr. Cargile proved he was not in fact at the mall on that date and that the BATF witnesses admitted that they saw no firearms sold in any event) I will not recite and dispute the BATF allegations in detail. I instead refer the subcommittee to the opinion of the court, a copy of which is attached to this letter. The BATF Director next maintains that the guns seized from Mr. Cargile were "properly maintained and stored" and were not "mishandled or abused." I refer the subcommittee to the magistrates' opinion which notes that "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 deterioration in the custody and control of the Alcohol, Tobacco and Firearms agents." I would moreover note that during the hearing, BATF agent Crowder, the BATF's own witness, admitted to seeing at least one firearm damaged: "Yes, sir, one firearm was damaged, but not, you know--I don't think--you know, beyond repair." (transcript, page 209). He further stated that the firearms had been stored in the basement of an abandoned post office building, stacked in piles upon the floor or propped up against the wall. (Cargile's collection contained items so scarce and unique that he himself handled them only with oiled linen gloves. Among the firearms taken were seven Winchester rifles from the last century and a collection of rare variants of the Colt 45 Automatic, possibly the best collection in existence.) As a result of the rough handling and storage on the floor of 410 a damp basement, 24 of these collector's items suffered dents or scratching; two suffered dents to telescope sights; two more had their front sights knocked off or removed; nine had rusting (two to the point of deep pitting), one had a broken butt plate and two had cracks in the wooden stock. As to the question of ATF's responsiveness to the order of the magistrate, on March 14, 1977 the federal magistrate ordered the firearms to be returned to Cargile. After the government failed to do so, Robert D. Thorpe, counsel of record for Mr. Cargile, filed a "Motion of Magistrate to Certify Facts Constituting Contempt to District Court ". I attach a copy of that motion to this letter. In the motion, Mr. Thorpe reveals that he "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". This, of course, directly contradicts the claims of ATF made to the subcommittee during the hearing, and repeated in the letter from Director Dickerson, that they intended to or had authorized an appeal. The motion also sets forth the steps which Mr. Thorpe took in an attempt to ascertain whether BATF was going to return the property as the court had ordered, which indicated that Mr. Thorpe was being given the classic bureaucratic "run around". Mr. Dickerson's letter attempts to argue that the time during which the firearms were withheld was "within the time period allowed for the government to appeal. . . ." It goes without saying that no appeal was ever filed. Even if one had been filed, of course, the court's order remains in effect unless a stay is obtained, and the BATF made no effort to obtain any such stay of the order prior to disobeying it. We are informed by Mr. Thorpe that at the hearing on March 24, the district court verbally affirmed the magistrates' order and delivered an ultimatum to the BATF: if the guns were not in Mr. Cargile's hands by 5 p.m. the following day, the agents involved would be held in contempt of court and appropriately punished. At this point the BATF agents decided that they were not immune from the Constitution and laws of the United States and complied with the order of the federal district court. No appeal was ever filed following return of the guns, nor were criminal charges filed against Mr. Cargile. The Cargile case illustrates perfectly the critical flaw in all the reforms promised by Director Dickerson, and all of his statements that the BATF's policies have been changed or do not permit certain actions. The gap between the "policies" or "directions" proclaimed by the highest level of management and the actual behavior of agents in the field is enormous. I doubt that Mr. Dickerson intentionally misrepresented the facts of this case to the subcommittee, or that he knowingly failed to inform them that the facts he asserts were admitted to be incorrect or were contradicted at the court hearing. The simple fact is that the agents could commit all of these improprieties, fabricate portions of a search warrant, and willfully disregard the orders of the federal court, without the true version of those facts ever being reported to Director Dickerson. Thus Mr. Dickerson is able to conclude that "I am confident that this bureau's seizure, handling, and subsequent return of Mr. Cargile's property was in strict compliance with its statutory authority. . ." Is there any reason to believe that the proclamation of different policies at the highest levels will in any way effect the behavior of agents such as those involved in the Cargile case, when they know that their director and other management personnel will be securing information only through them, depending upon their reports and affidavits, and thus will be no more likely to find out the truth than Director Dickerson has been able to discover it in this case? Very truly [signed] Neal Knox