DAVID N. MONTAGUE ATTORNEY AND COUNSELOR AT LAW 1 East Queen's Way First Floor Hampton, Virginia Telephone: 757-872-9901 Facsimile: 757-722-8189 March 06, 1998 The Honorable Dan Burton, Chairman House Committee on Government Reform and Oversight 2157 Rayburn House Office Building Washington, D.C. 20515 Dear Chairman Burton: I represent John Daniel LeaSure of Newport News, Virginia, whose recent convictions on federal firearms charges were dismissed by 10th District Judge John A. MacKenzie because the Bureau of Alcohol, Tobacco and Firearms (BATF) withheld exculpatory evidence. As the trial transcript indicates, the BATF illegally withheld evidence to begin with, then provided incomplete evidence by withholding critical information that was part of Brady information we requested. BATF has yet to turn over the evidence in its entirety. In fact, the BATF knew its records were faulty as evidenced by statements of Mr. Thomas Busey, Chief of the National Firearms Act Branch, in an official Roll Call Training Session (Oct 1995). At trial, BATF Special Agent Gary N. Schaible also stated that BATF employees had destroyed firearm registration documents rather than work on them. The U.S. attorney prosecuting the case declined to cross-examine Mr. Schaible, and BATF has not appealed the dismissals. Judge John MacKenzie stated that Mr. Busey's lecture was " . . . on television all over the building, it was in the files of the Department of Justice, and it throws a disagreeable proposition on my finding somebody guilty on records when their chief man says they were 49 percent wrong." (May 21,1996 transcript, Page 44) In an internal report responding to a complaint by another person, Eric M. Larson, regarding the destruction of registration documents, the BATF told a completely different story than the one Mr. Schaible related under oath in federal court. Specifically, the BATF stated in its internal report that the documents were thought to have been destroyed some eight years ago by contract employees; however, in Mr. LeaSure's trial, Mr. Schaible did not state this. Instead, Mr. Schaible acknowledged, under direct examination, that registration forms belonging to Mr. LeaSure could, in fact, have been destroyed by BATF employees. (May 21, 1996 transcript, Page 42, Line 19 through Page 43.) Finally, the BATF has persisted in withholding what is surely the most exculpatory evidence of all: a videotape of Mr. Busey claiming that the firearm registrations records have a 49 to 50 percent error rate. Later in the tape, Mr. Busey states that BATF will have to start in 1995 and work backwards, year by year, checking the computerized data against hard copy for the rest of the 1990s, in the 1980s, 1970s, and 1960s, etc., because they don't know what data they have, and don't know how accurate their records are. Mr. Busey also states, and I quote, "Let me say when we testify in court, we testify that the data base is 100 percent accurate. That's what we testify to, and we will always testify to that. As you probably well know, that may not be 100 percent true." What Mr. Busey stated was an appalling truth; that when he joined the Bureau, the error rate for their records for NFA firearms registrations was 50%. The means agents' testimony in registration cases in federal court are worthless, but perhaps hundreds of gun dealers and manufacturers (including my client) have felony convictions on their records or are in prison, when in essence these cases should never have even been brought to trial. To make matters worse, Mr. Busey was summarily fired and the transcript of his remarks hushed up. His remarks did not become known to the world until obtained on an FOIA request from attorney James Jeffries, III, of Greensboro, N.C. He heard through the grapevine that such a transcript existed and he was kind enough to send us a copy of the 22 page transcript. (This is how we were able to obtain the full transcript; not by it being fully provided by the government.) Over three weeks later, Assistant U.S. Attorney Arenda Wright Allen, the attorney in charge of the government's case, sent us a copy of the Busey transcript, except that the last seven pages had been removed, these being where virtually all the damaging material appeared. Furthermore, the government withheld the Busey videotape, which was clearly Brady Material. BATF has consistently refused to provide us with a copy of this videotape; however, we obtained a copy through the efforts of other persons who feel that an injustice was perpetrated against Mr. LeaSure. I would like to call this to your attention as an example of unacceptable behavior by a federal law enforcement agency. Did BATF or The Department of Justice delete the crucial last seven (7) pages of the Busey transcript and thereby almost all the damaging admissions? The more serious possibility was, and still is, that a conspiracy existed between the Justice Department and the BATF to conceal all of these facts, suggesting an abusive indifference to the administration of justice and due process. How many people's lives and reputations have been ruined by this? I understand that you have ordered the Treasury Department Inspector General independently audit the National Firearms Registration and Transfer Record, as well as evaluate the internal report BATF made in response to Mr. Larson's complaint. While I cannot speak to all aspects of Mr. Larson's complaint, I can provide you with Mr. Schaible's testimony given under oath, May 21, 1996, regarding the destruction of registration documents. Mr. Schaible's statements at the May 21, 1996 hearing are not consistent with his statements, presumably under oath, given in response to Mr. Larson's complaint. I hope that your Committee will look into the blatant discrepancy between these two statements. Both Mr. LeaSure and I would welcome the opportunity to meet with you and your staff to discuss this situation. Thank you. Yours very truly, David N. Montague Enclosures: Copy of "Roll Call Training Session" transcript, October 18, 1995, by Thomas Busey, Chief, National Firearms Act Branch, BATF Copy of "Roll Call Training Session" videotape, October 18, 1995, conducted by Thomas Busey, Chief, National Firearms Act Branch, BATF Excerpted testimony from transcript in United States of America vs. John Daniel LeaSure Criminal No. 4:95cr54, before The Honorable John A. MacKenzie, May 21, 1996 Internal BATF report to Treasury Department Inspector General dated September 9, 1997, in response to complaint by Eric M. Larson cc: The Honorable Jim Kolbe The Honorable Orin G. Hatch The Honorable Bill McCollum The Honorable Henery Hyde The Honorable J. Dennis Hastert The Honorable Fred Thompson The Honorable Susan M. Collins The Honorable Ben Nighthorse Campbell The Honorable Bob Barr The Honorable John Warner The Honorable Herb Bateman Carol Bergen, Office of Inspector General John D. LeaSure