[Appeal of denial of FOIA request for report on ATF misconduct allegations] December 26, 1997 Mr. Patrick Haynes Assistant Director Liaison and Public Information Bureau of Alcohol, Tobacco and Firearms 650 Massachusetts Avenue, N.W. Washington, D.C. 20226 Dear Mr. Haynes: This letter is an appeal of ATF's letter to me dated December 22, 1997, bearing symbols L:D:AG 98-311, which denies completely my letter dated November 20, 1997, which is a Freedom of Information Act request to release a report that ATF wrote and submitted to the Treasury Department Inspector General regarding allegations of mismanagement, misconduct and criminal wrongdoing by ATF employees. As you know, the House Committee on Government Reform and Oversight requested, in early October 1997, that the Treasury Department Inspector General (1) conduct an independent audit of the ATF's firearm registration practices under the National Firearms Act (NFA) of 1934, as amended; and (2) evaluate ATF's report to the Treasury Department Inspector General in response to my complaint. I have enclosed copies of the relevant correspondence for your information. ATF claimed in a letter dated October 8, 1997 (copy enclosed) in response to my request dated September 29, 1997, also asking for a copy of the report, that this document was in the deliberative process. It appears that the "deliberative process" excuse is merely a device to delay the release of this report and the underlying evidentiary workpapers. Regarding my appeal, ATF has claimed exemption under two grounds under Title 5, United States Code. Exemption number one cites section 522(b)(7)(A) [1] and exemption number two cites section 522(b)(5) [2]. I believe that neither exemption has been validly applied by ATF for the following reasons: Exemption number one cites "interfere[nce] with enforcement proceedings," yet because all of the allegations in my complaint, which the ATF report apparently addresses, the only "enforcement proceedings" that would be interfered with would be prosecutions by the Government of people whom the ATF has wrongfully accused of violating the law. As such, by definition, exemption number one thus seeks to deny Brady material to defense attorneys representing persons who are currently charged with violating one or more provisions of the NFA that may have resulted from criminal wrongdoing by one or more ATF agents. As you -------------------------- 1. "Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records could interfere with enforcement proceedings." 2. "Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." may know, under Brady, the Government is required to disclose any information in its possession which may exonerate a person the Government has charged with violating the law. Further, under exemption one, the ATF has dismissed my requested with impermissible generality. Specifically, under Crooker vs. B.A.T.F. (789 F.2d 64, D.C. Cir. 1986), ATF may not refuse a Freedom of Information Act request by asserting the information requested is contained in enforcement investigation files, but must provide more information when the requested documents are part of an investigation, but with a blanket statement as it has done in this instance. Thus, ATF has failed to demonstrated with the requisite specificity that the records I am seeking would "interfere with enforcement proceedings." You will also note that one of my allegations is that thousands of NFA firearms are currently registered to people the ATF has stated are dead; how could release of ATF's response to this allegation possibly "interfere with enforcement proceedings?" [3] Exemption number two cites "inter-agency or intra-agency memorandums or letters", yet the report that I am requesting is neither. The report is simply a official investigative report, not a memorandum or letter; as I explain below, it is clearly a final document that was passed through and approved by ATF's chain of command representing ATF's official position to the Treasury Department Inspector General, which is supposedly an entity that is independent from ATF. The statement in ATF's December 22, 1997, letter that the report "is in the deliberative process" because "the record you seek has not passed through the chain of command to date" is not worthy of belief, for at least two reasons: -------------------------- 3. Indeed, there is every reason to believe that such disclosures would not result in compromising law enforcement objectives. Specifically, in McKeehan vs. United States (438 F.2d 739, 6th Cir. 1971), the Court prohibited ATF from seizing unregistered NFA firearms that had been possessed for many years on at least four grounds: (I) the inadequacy of notice to the possessor considering the passive nature of his interest in possessing the firearms; (2) the lawfulness of purpose of his interest in possessing the firearms; (3) the lack of any declared legislative policy that forfeiture under the circumstances of this case will aid in enforcing the criminal laws or make the instrumentalities of crime more difficult or costly to obtain; and (4) the lack of any sound administrative or revenue purpose to justify confiscation of the firearms. Finally, the Staples case requires that the Government prove that a person being charged with possessing a prohibited firearm, actually knows that the firearm he or she possesses is a prohibited firearm. A significant number of "Any Other Weapon" category firearms manufactured in the United States in or before 1934 are not recognizable on sight as prohibited weapons, as my testimonies in 1996 and 1997 before the House Subcommittee on Treasury, Postal Service and General Government Appropriations have fully documented. 2 First, Special Agent Jeff Groh, the author of the report, personally called me on August 14, 1997; stated that he had completed the report and that ATF had reviewed it and was, that day, turning it over to the Treasury Department Inspector General; and that I could request and receive a copy of the report by a Freedom of Information Act request. It is not credible to believe that Agent Groh simply turned over this report, which represents ATF's official position regarding my allegations, to the Treasury Department Inspector General without obtaining the necessary executive clearances for it to be released outside the agency. No lower-level employee in any Government agency has that kind of power; indeed, had Agent Groh released the report without such clearances, such an action would be universally recognized as career limiting if not grounds for termination of his employment. Therefore, ATF's statement that the report I seek "has not passed through the chain of command to date" is clearly not true. Second, on October 22, 1997, I personally met in downtown Washington, D.C. with three Certified Fraud Examiners from the Treasury Department Inspector General's Office at Chicago, Illinois, at their request. During that meeting the supervisor, Carol Bergen, told me that she and the other two Examiners had already obtained and read the report. Thus, I had independent confirmation that Agent Groh had, in fact, turned over his report to the Treasury Department Inspector General. Again, ATF's statement that the report I seek "has not passed through the chain of command to date" is clearly not true. Thus, the evidence is clear that ATF completed and turned over the report to the Treasury Department Inspector General several months ago. To state that the ATF management has still not fully reviewed the report before releasing it outside of ATF is simply not credible. The report has been released outside of ATF, and I find it difficult to believe that senior ATF management would have released the report in that fashion if they had not fully reviewed it. There is a compelling public interest for the release of this report, because it may contain evidence of collaboration of my charges of mismanagement, misconduct and criminal wrongdoing by a federal law enforcement agency, and such charges merit quick and exhaustive public scrunity--and a just and fair resolution of whatever allegations may have been substantiated by valid and reliable evidence. In my judgement, ATF's failure to release this report is nothing more than an thinly veiled attempt to avoid responsibility before the Congress and the American people for its willful and deliberate betrayal of the public trust. While this letter is an appeal of a denied Freedom of Information Act request, I have no doubt that it will be brought to the attention of ATF's top management. These people can actually do something about the issues I have raised. On October 22, 1997, Carol Bergen asked me what I wanted out of all this, what was my interest, what did I want to see happen. There was no obvious reason for her to have asked me those questions, and I suspect that somebody as ATF asked her to ask them. 3 Well, I'll answer here, again, in writing exactly the way I put it to Ms. Bergen. If ATF either (1) determines that all "Any Other Weapon" firearms that were originally commercially manufactured in the United States in or before 1934 are mainly collector's items and are unlikely to be used as weapons and removes them from purview of the NFA; or (2) establishes a 90-day Amnesty Period, with adequate national publicity, to allow any qualified person (i.e., age 21 or older; and not prohibited under any local, state or federal law from possessing the firearm) to register or re-register, on a no-questions-asked basis and with full immunity from prosecution, any "Any Other Weapon" firearm that was originally commercially manufactured in the United States in or before 1934, I will drop this entire matter immediately. Please note that neither of my two proposals requires any changes to any existing laws. Either proposal could be executed by ATF by administrative action alone. As you may know, my interest in this entire case revolves entirely around a group of approximately 17,000 rare, historically significant firearms that represent a unique part of U.S. firearms genealogy. I am not interested in machineguns, bazookas, hand grenades, and the like, although the issues I have raised may certainly affect them. If ATF is willing to agree to either of the two proposals I have stated above, in writing, with personal signoffs by the ATF Director Magaw and Secretary of the Treasury Rubin, including, as necessary publication of the notice in the Federal Register of a 90-day Amnesty Period limited to "Any Other Weapon" firearms originally commercially manufactured in the United States in or before 1934, I will drop my efforts to push this case immediately. I regard ATF's continued refusals to even comment upon my credible documentation of criminal wrongdoing in the areas I have identified, or to meet with me to settle these matters, is clearly a waste of taxpayer money and an obvious dereliction of duty. If ATF continues in its present course of apparently stonewalling all of my efforts at reasonable solutions, all of these materials could well wind up in Congressional oversight hearings. Sincerely, Eric M. Larson P.O. Box 5497 Takoma Park, Maryland 20913 (301) 270-3450 cc: The Honorable Dan Burton The Honorable Orrin G. Hatch The Honorable Jim Kolbe Enclosures 4 [new letter] DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, DC 20226 DEC 22 1997 REFER TO: L:D:AG 98-311 Mr. Eric M. Larson PO. Box 5497 Takoma Park, Maryland 20913 Dear Mr. Larson: This is in response to your Freedom of Information Act (FOIA) request for access to information maintained by the Bureau of Alcohol, Tobacco and Firearms. At this time your request must be denied pursuant to Title 5, U.S.C. 552(b)(7)(A), and (b)(5), because the record you seek has not passed through the chain of command to date, and is therefore in the deliberative process. Insofar as your request has been denied, you have the right to file an administrative appeal by petitioning the Assistant Director, Liaison and Public Information by letter. The letter should state any arguments in support of your request, and must be received within 35 days from the date of this letter. Although you have the right to appeal, we suggest that you resubmit your FOIA after the holidays in four to six weeks, at which time we expect the decisions to be final. I regret this response could not be more favorable. Sincerely yours, [signed] Averill P. Graham Senior Disclosure Specialist [new letter] DEPARTMENT OF THE TREASURY BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WASHINGTON, DC 20226 OCT -8 1997 REFER TO: L:D:AG 97-1536 Mr. Eric Larson P.O. Box 5497 Takoma Park, Maryland 20913 Dear Mr. Larson: This is in response to your Freedom of Information Act (FOIA) request for access to information maintained by the Bureau of Alcohol, Tobacco and Firearms. Unfortunately, the record you seek is not a final record it is in the deliberative process at this time. Therefore, your request is denied pursuant to Title 5, U.S.C. 552(b)(7)(A) and (b)(5). Insofar as your request has been denied, you have the right to file an administrative appeal by petitioning the Assistant Director, Liaison and Public Information by letter. The letter should state any arguments in support of your request, and must be received within 35 days from the date of this letter. Although you have the right to appeal, we suggest that you resubmit your FOIA request in six weeks, at which time we expect the report to be concluded. I regret this response could not be more favorable. Sincerely yours, [signed] Averill P. Graham Senior Disclosure Specialist Enclosure [new letter] May 10, 1997 Ms. Valerie Lau, Inspector General Office of the Inspector General Department of the Treasury 100 Pennsylvania Avenue, N.W., Room 2412 Washington, D.C. 20220 Dear General: I am writing to call your attention to, and provide specific documented valid and reliable evidence of, what appear to me to be serious instances of mismanagement, misconduct and illegality by employees of the Bureau of Alcohol, Tobacco and Firearms (ATF) in administering our Nation's federal gun control laws. I have presented this evidence in testimony to the House Appropriations Subcommittee on April 30, 1996, [footnote 2] and on April 8, 1997. [footnote 3] I have enclosed a copy of my 1997 testimony for your convenience of reference. All of these instances of apparent mismanagement, misconduct and illegality involve the National Firearms Act (NFA) of 1934, as amended, which is a statute that falls under the Tax Code of 1986, and thus involves taxpayer information. Taxpayer information is secret under Internal Revenue Service (IRS) rules and the law, but under court rules and criminal case law, prosecutors are required to disclose any information that could be used to impeach a government witness. Consequently, the instances I have identified here appear to affect certain types of prosecutions for alleged violations of the NFA, and in particular the alleged nonregistration of NFA firearms. Based on my 1996 and 1997 testimonies, it appears that one or more ATF employees have, in the course of their official duties, committed a number of serious acts which are contrary --------------------- 2. "Statement on 'Curio or Relic' Firearms Manufactured in or Before 1934 Which Are Also Classified in the 'Any Other Weapon' Category Under the National Firearms Act (NFA) of 1934, as Amended," by Eric M. Larson, in Treasury, Postal Service, and General Government Appropriations for Fiscal Year 1997, Part 5. Testimony of Members of Congress and Other Interested Individuals and Organizations. Hearings Before a Subcommittee of the Committee on Appropriations, House of Representatives, 104th Congress, 2nd Session. Washington, D.C.: U.S. Government Printing Office, 1996, pages 37-274. 3. "Statement on Proposed Removal of Certain Firearms Manufactured in the United States in or Before 1934 from Purview of the National Firearms Act (NFA) of 1934, as Amended, and Their Reclassification as 'Firearms' as Defined in Title 18, U.S.C., Chapter 44," and "Errors in the National Firearms Registration and Transfer Record: A New Amnesty Period May be Required to Correct Them." 1 to law. Consequently, I would like to respectfully ask you to consider conducting a criminal investigation of a number of specific instances where it appears that ATF employees have violated the law. From the nature of these possible violations, it appears that it may be desirable for you to consider conducting a forensic audit of the National Firearms Registration and Transfer Record (NFRTR), as these data may have been illegally created or altered. It may also be necessary to have such a forensic audit conducted by an entity which is totally independent from ATF, to avoid any conflict of interest that would obviously result from allowing ATF to investigate itself. These specific alleged acts are as follows: 1. ATF employees have deliberately destroyed original firearm registration documents that they are required by law to maintain, as noted in sworn testimony in 1996 by ATF Special Agent Gary N. Schaible. [footnote 4] In analyses of data made public by ATF, I found that during 1992 to 1996, ATF may have added 119 or more firearms to the NFRTR which were originally registered on Form 1 or Form 4467 during 1934 to 1971, for which ATF lost or deliberately destroyed the original records. 2. ATF employees registered almost 2,500 unregistered NFA firearms on Form 4467 after December 1, 1968, without proper authorization by the Congress. In addition to not being authorized by the Congress, such registrations were prohibited by the Supreme Court in 1971, yet it appears that ATF registered 172 or more unregistered NFA firearms on Form 4467 after 1971. I have included an example of one apparently illegal post-December 1, 1968, Form 4467 registration in my 1997 testimony. 3. ATF employees Edward M. Owen, Jr. and Terry L. Cates committed felony perjury in letters written to me dated March 23, 1992, and July 29, 1993, respectively. Mr. Owen and Mr. Cates each alleged that "an unlawful trafficker in drugs with an extensive criminal record" was in possession of a .410 bore H&R Handy-Gun "while committing drug violations. This alleged instance of criminal conduct was used to deny my petition to remove the H&R Handy-Gun from the NFA as a collector's item. In fact, a Freedom of Information Act request disclosed that the Handy-Gun was recovered from an acquaintance of the trafficker, who said that the trafficker had given it to him for safe-keeping (see pages 212-215, 222-230, and 233-236 of my 1996 testimony). Any person who petitions for removal of a firearm from the NFA must state the reasons under penalty of perjury. The plain language of the statute at Title 26, U.S.C., section 5861(1) and section 5871 applies to any person who knowingly makes or causes the making of a false entry on any document required to be prepared as a result of ----------------- 4. "United States vs. John Daniel LeaSure, Criminal No. 4:95CR54, Newport New, Virginia, May 21, 1996. Transcript of Proceedings before the Honorable John A. Mackenzie, United States District Judge. United States Court, Eastern District of Virginia, Newport News Division. 2 administering the NFA, including a legal decision regarding the classification of an NFA firearm. Both Mr. Owen and Mr. Cates deliberately falsified the facts of the case they cited. 4. Certain "registration activity" that ATF classifies as "OTHER" could include registrations of firearms that one or more ATF employees registered contrary to law, because ATF has refused to disclose the nature of this "registration activity." To the best of my knowledge, I've never heard of any forms numbered other than 1, 2, 3, 4, 5, 6, 9, 10 or 4467 being used to register or transfer NFA firearms. According to a letter to me dated January 9, 1997, from NFA Branch Chief Nereida W. Levine, the "OTHER" category is "comprised of registrations where the form number is different from the other ones tabulated." Ms. Levine, however, has declined to provide the names or numbers of these forms. Coupled with the other evidence of registration mismanagement I have documented, it appears that the "OTHER" category may represent firearms that were registered illegally, as noted in my 1997 testimony. 5. It appears that a significant number of NFA firearms are currently registered to persons who are deceased, and that ATF has been aware of this fact since at least 1981 and done nothing about it, as noted in my 1997 testimony. Consequently, a significant number of NFA firearms are now illegally possessed, in some instances by persons who are unaware they are in violation of the law. The reason is that many firearms classified as "Any Other Weapon" are rare collector's items that many people do not consider weapons, as noted in both my 1996 and 1997 testimonies. ATF's most recent data (as of December 31, 1996) disclose that of the 14,259 firearms registered during 1934 to 1939, exactly 11,175 (78.4 percent) are still currently owned by the person or government entity that registered or acquired it during that same time period. And of the 58,904 firearms registered in 1968, a stunning 85.4 percent are still owned as of 1996 by the same persons who registered or received them by transfer in 1968. Consider that in 1981, an internal ATF study reported: We have the condition where people who registered firearms under the original National Firearms Act at age 66 would now be 112 years old. We know that these people are dead and their heirs have not taken the necessary steps to contact us so that the involuntary transfer created by the registrant's death can be formalized. [footnote 5] One result of ATF's negligence is that some persons who own certain rare, valuable firearms that have special value to collectors have been instantly transformed into criminals. The reason is that through natural disasters (such as the recent floods in North Dakota, house fires, and similar tragic events), the owners of these firearms have lost their copies of the documents which prove their lawful ownership, and the law does not allow these firearms -------------------- 5. "Status Report: National Firearms Registration and Transfer Record (NFRTR)," by Deron A. Dobbs. Internal ATF report dated July 1, 1981. 3 to be voluntarily re-registered. I believe there are two possible solutions to this problem, and neither requires legislation. The reason is that each solution may be achieved by administrative action on the part of ATF. These solutions are: 1. Administratively removing approximately 17,000 "curio or relic" firearms classified as "any other weapon" under the NFA, which were originally commercially manufactured in or before 1934 (but not replicas thereof). The Congress determined that these "any other weapon" firearms were mainly collector's items and not likely to be used as weapons in 1960. lt was not until 1968 that the Congress passed legislation enabling these firearms to be removed from the NFA as collector's items. 2. Establishing a 90-day amnesty period to allow persons who may have innocently lost their copies of the registration form to re-register these firearms. The Congress has authorized such amnesty periods to be established by the Secretary of the Treasury under section 207(d) of the Gun Control Act of 1968. For the past several years, in response to my petitions or requests, ATF has refused to implement either solution that I have proposed. I believe that removing these firearms from the NFA is an ideal solution, but also believe that an amnesty period may also be an appropriate solution. I hope that you will take prompt action to resolve the problems that I have documented. if you have any further questions, please contact me. Thank you. Very truly yours, (signed---Eric M. Larson) Eric M. Larson P.O. Box 5497 Takoma Park, Maryland 20913 (301) 270-3450 cc: The Honorable Janet Reno Attorney General Department of Justice The Honorable Bill Archer Chairman House Committee on Ways and Means 4 [new letter] June 15, 1997 The Honorable Dan Burton Chairman Committee on Government Reform and Oversight House of Representatives 2157 Rayburn House Office Building Washington, D.C. 20515 Dear Chairman Burton: My name is Eric M. Larson. I am writing to ask if the Committee on Government Reform and Oversight would be kind enough to consider investigating what I believe may be an inadequate response by the Inspector General of the Department of the Treasury regarding what appear to be serious instances of mismanagement, misconduct and illegality by employees of the Bureau of Alcohol, Tobacco and Firearms (ATF) in administering our Nation's federal gun control laws. These instances include record-keeping in the National Firearms Registration and Transfer Record (NFRTR), under the National Firearms Act (NFA) of 1934, as amended. I wrote to the Treasury Department Inspector General on May 10, 1997, and identified in detail five apparent violations of law that that one or more ATF employees may have committed in the course of their official duties. These include: (I) the willful destruction of firearm registration documents; (2) the unlawful registration of firearms; (3) perjury in making legal determinations of firearms classifications; (4) the fact that certain firearms (such as machineguns) are known by ATF to be currently registered to persons who have been deceased for many years; and (5) the possible coverup of violations of the law by making false entries in the NFRTR. Under Title 26, United States Code, section 5861(l), it is illegal for any person (including an ATF agent or employee) "to make, or cause the making of, a false entry on any application, return, or record required by [the National Firearms Act of 1934, as amended], knowing such entry to be false." I also presented this evidence in testimony to the Subcommittee on Treasury, Postal Service and General Government, Committee on Appropriations, House of Representatives, on April 8, 1997. I have enclosed a copy of my 1997 testimony for your convenience of reference, as well as my May 10, 1997, letter to the Inspector General which details these allegations. In a letter dated June 5, 1997 (a copy is enclosed), the Office of the Inspector General advised me that my complaint was being referred to ATF. I believe that the Inspector General's response may be inadequate and possibly inappropriate for at least three reasons: 1. There is an obvious conflict of interest. Because ATF is an interested party, it seems inappropriate for ATF to be asked to investigate itself for possible criminal misconduct. ATF has, in the past, refused to voluntarily disclose that ATF employees have deliberately destroyed original firearm registration documents that they are required by law to maintain, as observed in sworn testimony in 1996 by ATF Special Agent Gary N. Schaible. [1] Given that ATF's disclosures were not voluntary, and involved evidence and knowledge by the Government that would tend to exonerate a person charged with violating the NFA, I am not confident that anything meaningful will result from simply referring my allegations to ATF. 2. ATF has already reviewed these materials and declined to comment. As noted in part of my 1997 testimony (see page 19, Endnote 8), I provided ATF with draft copies of my research on February 9, 1997, and March 9, 1997, and each time invited ATF to comment upon and/or offer corrections to any errors of fact or interpretation that I may have made. ATF declined to respond with any corrections or comments. 3. The appearance that ATF may have co-opted the Treasury Department's Office of Inspector General. As you may know, a major criticism of Inspectors General is that they are not independent from the agencies they are assigned to investigate. While I am not knowledgable in detail about how Inspectors General operate, the appearance of possible favoritism in this instance may be damaging to the credibility of the Government. Unlike a single, controversial event involving on-the-spot judgements by law enforcement officers, the problems that I have identified and documented with valid and reliable evidence deal mainly with an inanimate record-keeping system and events which have occurred during a period of more than 60 years. I also believe that I am confronting difficult issues of custom and culture at ATF that may take a major effort to resolve, and which could require some changes to be made in its record-keeping systems. I hope that the Committee on Government Reform and Oversight will review the facts in this case, and consider conducting an independent forensic audit of the NFRTR. If you or your staff have further questions, please contact me. Very truly yours, Eric M. Larson P.O. Box 5497 Takoma Park, Maryland 20913 (301) 270-3450 ----------------------- 1. United States vs. John DanieL LeaSure, Criminal No. 4:95CR54, Newport New, Virginia, May 21, 1996. Transcript of Proceedings before the Honorable John A. Mackenzie, United States District Judge. United States Court, Eastern District of Virginia, Newport News Division.