NOTE: John LeaSure submitted a copy of the Busey Videotape along with this testimony ----------------------------------------------------------------- Statement on Efforts by the Bureau of Alcohol, Tobacco and Firearms to Cover Up Errors in the National Firearms Registration and Transfer Record and to Illegally Withhold Exculpatory Evidence in Criminal Prosecutions by John D. LeaSure 5007C Victory Blvd., Box 360 Yorktown, Virginia 23693 Tel: 757-874-7717 Presented before the Subcommittee on Treasury, Postal Service and General Government of the Committee on Appropriations House of Representatives B307 Rayburn House Office Building Washington, D.C. April 3, 1998 page 2 Mr. Chairman and Members of the Subcommittee: My name is John D. Leasure. I have prepared this testimony because I have an important story to tell about how part of the legal system in this country is broken. I say "part of the legal system," because certainly all of it is not broken. In addition to having 5 felony convictions reversed because the Bureau of Alcohol, Tobacco and Firearms (BATF) withheld exculpatory evidence, having the opportunity to personally bring this matter to your attention by myself, in my own words, means a great deal to me. There is still a cloud over my name right now, but it is my hope that the Federal Court system will clear me. I prepared this testimony for three basic reasons. First, I want to document for the Congress how BATF illegally withheld exculpatory evidence in the course of charging me with and prosecuting me for so-called "crimes" that were artifically created only by flawed firearm registration records. Second, and perhaps most importantly, I want to place in the formal record of this hearing evidence that the BATF is continuing to try and cover up its misdeeds, and is thus continuing to try to illegally prosecute some people on the basis of firearm registration records that BATF knows good and well are not reliable. Third, I hope that by bringing this information to your attention, the Subcommittee can help keep what unjustly happened to me from ever happening again to somebody else. All of the laws that I have been accused of violating are part of the National Firearms Act (NFA) of 1934. The NFA regulates the manufacture, sales or distribution, and possession of machineguns, bazookas, anti-tank rifles, land mines, hand grenades, sawed-off shotguns, firearm silencers, rockets, and similar implements of war. In addition to law enforcement reasons, there are many legitimate activities involved with these items. Museums have them, people study them for research and development purposes, other people collect them as historical artifacts, and they are regularly used in movies. I will not try and address all of these uses here, and instead will begin by explaining how I got where I am today from my perspective. page 3 PERSONAL BACKGROUND I am an inventor of firearm silencers, which are sometimes called "suppressors," because they reduce or eliminate the sound of a firearm being discharged. I hold a patent on my silencer invention, which was patented in 1992, and which is considered among the best in the industry. While I have sold perhaps a handful of these items to certain qualified individuals, virtually all of my clientele has been the U.S. Government, its foreign-government allies, and law enforcement agencies. In other words, my business is not with the civilian market. As a federally licensed manufacturer under the NFA, I was legally qualified to manufacture silencers as well as any other NFA firearm or device. I also make a good product. You may not have heard of me before today, but I'm sure you all have heard of Tom Clancey, the author of Without Honor. Well, the technical information in that book regarding firearm silencers came from me. My legal problems with BATF forced me to close my first company, Precision Arms International, which was located in Saluda, Virginia. As a convicted felon, I cannot possess any firearm, nor hold a federal manufacturer's license. At the moment, I have been legally operating a new company called Silent Options, Inc., using a manager, because I have bills to pay and need to make a living. Making silencers is what I do best, and I hope to continue doing it. My legal problems with BATF forced me to close my first company, Precision Arms International, which was located in Saluda, Virginia. As a convicted felon, I cannot possess any firearm, nor hold a federal manufacturer's license. At the moment, I am a consultant to SiOpts. HOW MY LEGAL PROBLEMS STARTED In February 1994, I was contacted by BATF for a compliance inspection. When Inspector Charles Turner arrived at my place of business, we tried to retrieve my records via the computer. I had problems with the computer, so he left and returned two days later with a computer printout of my supposed inventory provided by the NFA branch in Washington, D.C. When our records didn't match, Inspector Turner said he would return in a few days. Three days later he returned, along with three other BATF agents, with a search warrant. I offered the hard copies of my records to Special Agent Karen Dutton, but she said they were not interested in the hard copies. They seized approximately 60 items, saying they would be in touch with me. (Trial Jan. 18 and 19, 1996, Page 96, Line 1-25. Throughout I called the Norfolk BATF office numerous times inquiring as to the status of my inventory and trying to find out exactly what was going on. I was told, "It is still pending." In late 1994 I was forced to close up my company, Precision Arms International, due to poor business. I was told by a good customer that word had gotten around that I was having problems with BATF. I re-opened my business in Newport News, Virginia under the name of Silent Options. In November 1995 I was contacted by Special Agent Karen Dutton and told the grand jury had returned a true bill on my indictment page 4 and I had better get a lawyer. When my lawyer, David N. Montague of Hampton, Virginia, called on November 16, 1995 to the U.S. Federal Eastern District Court, he spoke with Arenda Wright-Allen, Assistant U.S. Attorney. She told Mr. Montague I had NOT been indicted, but my case was still under investigation. Three days later, and two days before Thanksgiving, I received my indictment, delivered by a U.S. Marshal. The grand jury had met on November 14, 1995 and returned a true bill. We obtained a copy of Special Agent Karen Dutton's testimony of the grand jury hearing. In her testimony, she testified I had in my possession three unregistered functioning machine guns. These "machine guns" were small replacement parts I was licensed to possess. This tainted the testimony to the grand jury. As a matter of fact, these were replacement parts of a United States military project. Even though during my trial Judge MacKenzie questioned why I was even charged with this count, it still was an issue we had to spend time and money fighting and proving my innocence. Furthermore, this prevented the negotiation of reducing my charge to a misdemeanor, and points were added to my sentencing guidelines for this count, even though I was found not guilty. (Grand jury hearing, 11-14-95, Page 10, Line 16.) In December 1995 David N. Montague, my attorney, asked Arenda Wright-Allen if there was any way this could be reduced to a misdemeanor and was told absolutely not. On January 18 and 19, 1996, my trial was held in the U.S. District Court, Eastern Division, Newport News, Virginia, before the Honorable John A. MacKenzie. During the trial, Gary Schaible, who is in charge of record certification for the NFA branch in Washington, D.C., testified their records were 100 percent accurate, and that he had made only one mistake in his 20 years of service. Judge MacKenzie took the case under advisement. (Page 107, Line 23). In February 1996 I was found guilty on four of the six counts. In March 1996, through a Freedom of Information Act Request by attorney James H. Jeffries, III, we obtained a transcript of a roll call training session conducted by Tom Busey, Chief of the NFA branch of the BATF. Mr. Busey, in this October 1995 training session, admitted their records were at best 50% accurate. Mr. Busey also stated when testifying in court cases, agents testify the records are 100% correct. Gary Schailbe was present at this meeting. (BATF Roll Call Training Session NFA Branch, October 1995, Page 9, Line 3) "Let me say that when we testify in court, we testify that the data base is 100% accurate. That's what we testify to, and we will always testify to that. As you probably well know, that may not be 100% true. (BATF Roll Call Training Session NFA Branch, October 1995, Page 19, Line 4). "This quality review team, when I first came in a year ago, our error rate was between 49% and 50%, so you can imagine what the accuracy of the National Firearms Registration and Transfer Record could be, if your error rate is 49% to 50%" (Please refer to the enclosed roll call page 5 training session tape.) On March 29, 1996, David Montague wrote a letter to Judge MacKenzie requesting the case be dismissed based on the roll call training session, and regarding Count 1, Mr. Montague wrote, "Count 1 would have been fatally tainted by the multiple acts of misconduct by the Government." (Letter to Judge MacKenzie, 3-29-96). In April 1996, my attorney filed the roll call training transcript with the court for a motions hearing. It was mailed certified return receipt. The very next day, Mr. Montague received this same transcript from Arenda Wright-Allen, which she filed with the court, only her copy left out seven consecutive pages. It's interesting to note those seven pages contained all the information about the BATF admitting their records were at best 50% accurate. On May 21, 1996, in a hearing before the Honorable John A. MacKenzie, all counts but one were thrown out due to Gary Schaible's new testimony wherein he perjured himself, and he stated there were examiners at the BATF NFA branch in Washington, D.C. who shredded registration and transfer documents. Furthermore, this was exculpatory material withheld by the prosecution. (Court hearing, 5-21-95, Page 42, Line 19 to Page 44.) The sentence given was 12 months, but I was let out on bond pending appeal. One interesting point, in my sentencing guidelines prepared by probation officer Sharon Thayer, she included counts of which I was found not guilty. This upped the sentencing range dramatically. (Court hearing 5-21-95, Page 70, Line 5.) U.S. attorney Arenda Wright Allen appealed my sentence. In June 1996, Stephen Halbrook became attorney of record and noted our appeal based on the ambiguity of the law. In May 1997, the Court of Appeals, Fourth Circuit, upheld the conviction and refused to hear oral argument on the appeal. The Fourth Circuit remanded my sentence back to Judge MacKenzie to comply with the rules of United States versus Koon. In August 1997, David Montague returned as the attorney of record and noted my appeal to the United States Supreme Court. In October 1997, the Supreme Court refused to hear the case. David Montague has two motions to file. One is to dismiss stating BATF obtained a search warrant based on the accuracy of their records knowing full well their records were at best 50% accurate. In addition, if this transcript had been turned over before trial, which it should have been, it would have left Count 1, the count on which I was convicted. Even though I was licensed by the BATF to manufacture silencers, I was still convicted for possessing them. However, that count by itself could have been reduced to a misdemeanor under the Tax Code, and as I stated earlier, we tried to get this reduced but were told absolutely not. page 6 However, I must state I feel Count 1 should have been thrown out due to the ambiguity of the law. Federal Register, Vol. 53, No. 62, Rules and Regulations, Section 179.102. This is also stated in "Your Guide to Federal Firearms Regulation, 1988-89," Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms. Please see excerpts from Jan. 18 & 19, 1996 trial, Page xx, Line, Page xx, Line xx, Page xx, Line xx. A MISCARRIAGE OF JUSTICE Why was Gary Schaible able to perjure himself on the stand with no repercussions? If the normal citizen were to perjure himself, they would be tried and most probably convicted. In the roll call training session tape, Tom Busey states there are over 800 cases they are trying based on the accuracy of their records. How many other people are in jail or have felony convictions on their records because of the BATF's lying about the accuracy of their records? Why weren't Inspector Turner and Special Agent Karen Dutton interested in the hard copies of my records? Why was Karen Dutton able to testify incorrectly to the grand jury thereby obtaining an erroneous charge against me, and in essence, extra points added to my sentencing guidelines? Why was Brady material withheld? Why did Arenda Wright-Allen leave out seven consecutive pages from the roll call training session transcript, which in these seven pages, it's clear Gary Schaible perjured himself? The Department of Justice stated they sent the complete transcript out to all U.S. attorneys. Why was I "given time" in my sentencing guidelines for charges I was found not guilty? How can a person be given sentencing enhancements/points for counts he was found not guilty? If this is correct law, why have trials? Why would the Court of Appeals, Fourth Circuit, not even hear oral argument on my case? Why did the U.S. attorney, Arenda Wright-Allen, tell my attorney, David Montague, that I had not been indicted, yet she was the U.S. attorney who presented my case to the grand jury two days prior? She told Mr. Montague I was under investigation. The grand jury met on November 14, 1995 and Mr. Montague spoke with Ms. Wright-Allen two days later on November 16, 1995. How can someone who truly believes they are complying with the laws be sent to jail for 12 months? (With the distinct possibility of receiving 51 months.) page 7 Please read David Montague's letter, June 4, 1996, to Michael E. Shaheen, Junior, Director, Office of Professional Responsibility, U.S. Justice Department, regarding the removal of seven pages from the roll call training session transcript; obstruction of justice/tampering with evidence. I had just re-opened my business in June of 1995 and things were going great. I felt I had recovered my reputation BATF's raid on my prior business. I had pending orders in excess of $500,000. News in the gun/defense industry travels fast, and by the beginning of December 1995, I was being told by customers, "We'll get back to you." Additionally, I have spent the majority of my life in the defense industry and I was now left with no current job skills to find a new career. Needless to say, this was a severe financial strain on my family. TESTIMONY AND RESEARCH OF ERIC M. LARSON In January 1998--less than 3 months ago--I became aware that Eric M. Larson had testified before this Subcommittee about errors in the National Firearms Registration and Transfer Record, or NFRTR. Mr. Larson became interested in these errors from a completely different perspective, that of hearing about collectors who had firearms confiscated by BATF even though the firearms were legally registered to them. I would like to briefly say that the relatively small number of firearms that Mr. Larson is concerned about (he estimates there are roughly 17,000 of them) are, indeed, in my professional opinion, firearms that are only of interest to collectors. They came under the NFA for mainly technical reasons, and we in the business often encounter them. In a significant number of cases, people simply don't recognize them as NFA firearms--because they look like what they are, obsolete firearms that obviously were manufactured many years ago. I believe that what Mr. Larson has suggested is reasonable, which is to either allow people to voluntarily re-register these guns, or to simply remove them from the NFA as collector's items. I hope you will consider doing this, based on his research and testimony. Having said that, I am mainly interested in Mr. Larson's work for two very different reasons. First, he independently confirmed what I experienced, and what those of us in the NFA business have recognized for many years. Namely, that the NFRTR records are a mess. They are not totally a mess, of course, but they are enough of a mess to cause unjust prosecutions, for a Federal Judge to deem them unreliable enough to support convictions, and for the BATF not to appeal those dismissals of charges. That's pretty unreliable. Second, Mr. Larson followed up his testimony with a complaint to the Treasury Department Office of Inspector General, which ultimately turned page 8 into written proof of an attempt by the NATF to still try and cover up errors in the NFRTR. Briefly, Inspector General refused to investigate Mr. Larson's complaint, and instead turned it over to the BATF. The BATF then did an internal investigation, completely exonerated itself, and then refused to release the report for a long time. The report was completed in September 1997, but Mr. Larson was unable to obtain a copy until late January 1998. He kindly shared this report with us. I will not go into Mr. Larson's complaint here, except to say that one specific complaint he made was about the deliberate destruction of registration documents by BATF employees. As we have seen, this is what Mr. Schaible testified to at my trial, and it is one of the reasons that Judge MacKenzie dismissed 5 of my convictions. Yet, the BATF told a completely different story than the one Mr. Schaible related under oath in federal court in response to Mr. Larson's complaint. 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 my 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.) Also (incredibly, in my opinion), the BATF is continuing to try and withhold the Busey Tape, which is clearly Brady Material. In a letter dated March 18, 1998, less than 3 weeks ago, the BATF denied a Freedom of Information Act request by Mr. Larson for a copy of the videotape. BATF gave as the reason, and I quote: "Your request is denied pursuant to Title 5, U.S.C. 552(b)(6) as release of this video tape would constitute an invasion of Mr. Busey's privacy." Mr. Chairman, not only is BATF's refusal to release this information an outrage, what Mr. Busey states on the tape is an outrage: namely, that he knew good and well how messed up the records were. Listen to what Mr. Busey states toward the end of the videotape, and I quote: "What we're going to do is we're going to go back, starting with the latest entry and working back to the oldest entry and review every hard copy of every document with its entry into the data base to see if it's correct. I think originally we figured this would take 781 man days to do this with five people sitting at a computer eight hours a day." "But it's the only way that we can feel that we can ever get it completely accurate. It was fine to begin putting everything in accurate a year ago or at least be guaranteed a year ago it was correct, but what are you going to do with the entries that go back to the early 80s and the 70s and the 60s?" page 9 PROPOSED REMOVAL OF THE NFRTR FROM BATF AND RELOCATING IT TO THE DEPARTMENT OF JUSTICE I learned about 3 weeks ago that Mr. Larson was planning to recommend that this Subcommittee consider removing the NFRTR from the custody of the BATF, and relocate it within the Department of Justice. I believe this is a reasonable and necessary action, for several reasons. First, the Department of Justice is the organization that does all of the background checks anyway. Second, the Department of Justice has the capability to professionally manage these records, as it has done do with fingerprint records for many, many years. The BATF has proven, by its actions, that it is incapable of managing these records, but more importantly that it is continuing to try and cover up errors in the NFRTR and thus continue to try and prosecute innocent people. Third, the BATF (or indeed, whatever government agency has the responsibility for enforcing federal gun control laws) would still have access to these records, and have the ability to use them for legitimate law enforcement purposes. Fourth, and perhaps most importantly, moving the NFRTR to the Department of Justice would provide an objective, legal interface between these records and the BATF. In other words, the BATF could not manipulate these records or misuse them, because they would be in the custody of a disinterested federal agency that has an incentive to maintain their integrity. Mr. Chairman, I don't know the political and practical details of how you do these things, but I strongly support Mr. Larson's suggestion that the NFRTR be completely removed from the BATF, and turned over to the Department of Justice. EFFECTS OF BATF'S PROSECUTION ON MY PERSONAL LIFE I don't know that I can adequately express how it feels to be wrongly accused of, tried and convicted for crimes that I did not commit. I can tell you that it takes over your life from then on. I think about it every day, and worry about what is going to happen to me and to my family. In May of 1995 I married the love of my life, and with her I also enjoyed becoming a father to her five year old son. As you know, six months later I was served with the indictment. It is almost impossible, and I have said, to put into words the stress that befell our home life, for the fear of having my son lose his new father would have been devastating to him, not to mention my sorrow as well. My wife and I have both gone through depression, mental anguish, and our son's school performance has suffered. My wife was a court stenographer who enjoyed going to court for the state felony dockets. After seeing such a gross miscarriage of justice, she was mentally no longer able to perform her duties in court hearings. She page 10 lost all faith in the justice system. We feared for our safety due to retaliation by the BATF, echoes of Waco, Ruby Ridge, and John Lawmaster went through our minds constantly. Even today, we fear that writing to you will prompt retaliation by the BATF. People who I thought were my friends would no longer talk to me. A close friend finally told me others were afraid if they were associated with me, there would be retaliation by the BATF towards them. This friend also told me that's why no one would testify on my behalf. Furthermore, the night before my trial, a very close friend who wasn't afraid to testify, received an anonymous call stating he better not show up at trial. During this time I received numerous prank calls, some using foul language, and constant hang-ups. I never even bothered asking anybody in the NFA manufacturer or dealer industry to testify on my behalf about the same kinds of errors in the NFRTR they have experienced. The BATF scares them, because the BATF can put you out of business. Knowing what it has done to me, I could never criticize anybody for putting their wife, family and business interests first. I am proof that nobody will step forward and help. These are just a few examples of the hell we went through and are still continuing to experience, for peace of mind and reputation are not acquired overnight. In legal fees, our bill with David Montague is $28,300, and the clock is still ticking. We had previously paid him $7,000. (This is not included in the $28,300.) Stephen Halbrook's bill was $24,500. We still owe $18,000. This does not include the countless hours spent worrying about the case; time working on the case; time it has taken away from my family and business life; and time trying to keep it all together financially and emotionally. CONCLUSION Mr. Chairman, on March 25, 1997, my attorney filed a writ of Habeas Corpus on my single remaining conviction. As I write these words, I don't know what is going to happen, but I feel like we have a sound case that is based on valid and reliable evidence. It is possible that by the time you read these words, I will be a totally free man, but I don't want this to stop here. I came forward with this story mainly because I don't want any other person to ever experience what I went through, because of messed-up records and an effort by the BATF to lie about and cover up exculpatory evidence. This is the part of the legal system that is broken, and I sincerely hope that you and other Members of the Subcommittee will use your authority to support reforms that prevent any of this from ever happening again. page 11 Thank you for the opportunity to have shared this information with you. I will be glad to try and assist you and anybody else in the task of fixing this very serious problem. Sincerely, John D. LeaSure ----------------------- NOTE: Attachments included are: 1. Section 179.102 "Identification of Firearms" from the Federal Register, Vol. 53, No. 62, March 31, 1988. 2. "Questions and Answers Concerning the Regulation of Machineguns and Silencers under the National Firearms Act and the Gun Control Act, as Amended by Public Law No. 99-308" 3. Letter to John A. MacKenzie dated March 29, 1996, from David N. Montague (attorney representing John LeaSure) David N. Montague Attorney and Counselor at Law 1 East Queens Way Telephone: (804) 722-7441 Second Floor Facsimile: (804) 722-8189 Hampton, Virginia 23669 March 29, 1996 The Honorable John A. MacKenzie Senior United States District Judge Eastern District of Virginia Walter E. Hoffman U.S. Courthouse 600 Granby Street Norfolk, Virginia 23510 Re: United States v. John Daniel LeaSure, Criminal No. 4:95cr54 Dear Judge MacKenzie: On yesterday, I received a letter with multiple enclosures from Assistant U.S. Attorney Arenda Wright Allen, Esq. It appears that Mrs. Allen also sent a copy of this letter, with the enclosures, to you. The letter is quite extraordinary for several reasons, and I believe it is appropriate for me to bring these to your attention. I am, of course, send Mrs. Allen a copy of this letter. In the first place, this case was tried before you in Newport News more than two months ago, and resulted in the conviction of Mr. LeaSure on 4 of the 6 counts in his indictment. Mrs. Allen's letter of March 26, 1996, states that the accompanying information is sent "to avoid any suggestion that the [Justice] Department has not provided all relevant material in this matter." My understanding of the Brady rule is that the potentially exculpatory disclosure is to be made to the defense before the trial. It doesn't do much good two months later. Secondly, on March 25, 1996, we sent to Mrs. Allen by Certified Mail, Return Receipt Requested, a supplement to our motion for a new trial with various materials attached, including a copy of the transcript of the departmental briefing given to the Bureau of Alcohol, Tobacco and Firearms (BATF) by then NFA Branch Chief Thomas Busey, in October, 1995, and the Return Receipt shows that it was received by Mrs. Allen on March 26--the same day as her letter to me. Third, she includes as the first item among her enclosures the same transcript of Mr. Busey, except her copy of the transcript omits the last six pages which contained, we thought, the admissions most damaging to the Government's case. Her version of the transcript ends with page 15, but page 16 (we filed the whole thing) has Busey saying: "we maintain these [NFRTR search] files for future references in case one or the other of us has to CYA for one reason or another." page 2 And on page 19 he says: "when I first came in a year ago, our error rate was between 49 and 50 percent." Another interesting item is in the portion of the transcript submitted by Mrs. Allen, and appears at page 9: "Let me say that 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 know, that may not be 100 percent true." In Mrs. Allen's next exhibit, a handwritten affidavit by Mr. Busey, he finds it necessary to assert that: "Neither I nor my staff have never [sic] perjured themselves regarding this accuracy . . . " Assuming this means that they have not committed perjury, it is shocking that he would feel it necessary to issue such a disclaimer. This casual and flippant attitude on the part of a senior BATF official is unbecoming, unprofessional and inappropriate, but far more importantly, the sine qua non of the Government's case on Counts 2, 3 and 6 of the indictment was the testimony and certification of Gary Schaible of the BATF that the weapons in question were not registered to Mr. LeaSure. The fact that this assertion was based on data at that time (February, 1994) suffered from a "49 or 50 percent" error rate is absolutely appalling. Had we known these facts, I believe the entire case would have been dismissed because (1) Counts 2-6 would have been subject to reasonable doubt as a matter of law, and (b) Count 1 would have been fatally tainted by the multiple acts of misconduct by the Govenrment. I would request that you convene a hearing to consider the Defendant's Motion for a New Trial and for such other relief as the Court might find appropriate. With kind regards. Yours very truly, (signed---David N. Montague) David N. Montague cc: Arenda Wright Allen, Esquire. Mr. John D. LeaSure 3. Letter to Arenda Wright Allen, Esquire, dated May 24, 1996, from David N. Montague (attorney representing John LeaSure) David N. Montague Attorney and Counselor at Law 1 East Queens Way Telephone: (804) 722-7441 Second Floor Facsimile: (804) 722-8189 Hampton, Virginia 23669 MAILED & FAXED (804) 441-6689 May 24, 1996 Arenda Wright Allen, Esquire Assistant U.S. Attorney World Trade Center, Suite 8000 101 West Main Street Norfolk, Virginia 23510 Re: U.S. vs. LeaSure Criminal Number 4:95cr54 Dear Mrs. Allen: On yesterday I received a call from an out-of-state lawyer who specializes in the defense of NFA cases. He informed me that he had jsut receive in one of his cases a letter similar to the one you wrote to me about in this case on March 26, 1996, with, apparently, most of the same exhibits. A significant difference, however, was the fact that he received the entire Busey transcript, and not just the first fifteen (15) pages, and I did. You will recall that I raised that question in my letter to Judge MacKenzie of March 29 and again in remarks to the Court on May 21 in Newport News. On neither occasion did you offer any explanation, nor did your witness, Gary Schaible of the BATF, have any explanation for the missing seven (7) pages, in which most of the damaging admissions occur. At this point, it is obvious that someone removed these critical pages from your exhibit. While I do not suggest that that person was you, I do need an explanation, and if you cannot provide it, I shall plan to write next week to the Director of the Office of Professional Responsibility at the Justice Department. Please advise me as to what you know about the following: (1) Was your letter to me of March 26 unique to the LeaSure case, or was it part of a nationwide notification to defense lawyers involved in similar cases? (2) Was the substance of the letter your work, or was it suggested by anyone else? page 2 (3) From whence did you receive the exhibits which accompanied that letter? (4) If the answer to question three (3) is: The Justice Department, did you send out the exhibits exactly as received, or did you or anyone you know of make any changes to them? I realize that next week is a short week, but I shall hope to hear from you by Thursday, May 30. Yours very truly, (signed---David N. Montague) cc: Mr. John LeaSure /slb 5. Letter from Arenda Wright Allen dated May 29, 1996, to David N. Montague U.S. Department of Justice United States Attorney Eastern District of Virginia 8000 World Trade Center (804) 441-6331 101 West Main Street Norfolk, Va. 23510-1624 May 29, 1996 David N. Montague, Esq. 1 East Queens Way, Second Floor Hampton, Virginia 23669 Re: United States v. John Daniel LeaSure Criminal No. 4:95cr54 Dar Mr. Montague: Please be advised that the entire packet which I mailed to you on March 26, 1996, was xeroxed in total from the original packet sent to my office from the U.S. Department of Justice, Criminal Division. Sincerely;, HELEN F. FAHEY UNITED STATES ATTORNEY by: (signed--Arenda L. Wright Allen) Arenda L. Wright Allen Assistant United States Attorney 6. Letter to Michael E. Shaheen dated June 4, 1996, from David N. Montague (attorney representing John LeaSure) David N. Montague Attorney and Counselor at Law 1 East Queens Way Telephone: (804) 722-7441 Second Floor Facsimile: (804) 722-8189 Hampton, Virginia 23669 June 4, 1996 Michael E. Shaheen, Jr., Esquire Director, Office of Professional Responsibility U.S. Justice Department Room 4303 Main Justice Building 10th Street and Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Mr. Shaheen: I write to bring to your attention a matter which has been of great concern to me in recent weeks. I have been involved as defense attorney in a case brought under 26 USC Section 5861(d)&(i) in the Eastern District of Virginia, styled U.S.A. v. John Daniel LeaSure, Criminal Number 4:95cr54. Briefly, the case involved a prosecution of Mr. LeaSure, a federally licensed Class 2 Manufacturer specializing in research and development of firearm suppressors, or "silencers", and the holder of a patent for what is probably the best silencer in the world. The offenses charged in a 6-Count indictment came before the Honorable John A. MacKenzie for a two-day bench trial on January 18 and 19, 1996, for a variety of record-keeping violations, but no substantive violations. Initially, by Order entered February 1, 1996, Judge MacKenzie found LeaSure guilty of 4 of the 6 counts of the indictment, all of which involved the record-keeping functions of the NFA Branch of the Bureau of Alcohol, Tobacco and Firearms (BATF) except Count 1, which was for possessing unsuccessful experimental silencers without serial numbers. At the sentencing on May 21, 1996, the Judge was given access to additional information which had become available after the trial, consisting principally of a transcript of a training session made to the BATF in October, 1995, by Thomas Busey, then Chief, National Firearms Act Branch, BATF. page 2 This transcript was hushed up by BATF after it was made because extremely damaging admissions about a "49-50 percent" error rate in the NFRTR (National Firearms Registration and Transfer Record). Mr. Busey stated that great strides had been made since he had been on the job (from October 1994). This, of course, cast grave doubt on all cases antedating Busey's tenure, including this one, which had arisen in February 1994. Within a month, Busey had been reassigned to the tobacco section of BATF, and his transcript remained a secret until it was produced pursuant to a FOIA request made by James H. Jeffries, III, Esquire, of Greensboro, North Carolina, on November 7,1995. Actual production was made to Mr. Jeffries on or about March 1, 1996, about 1-1/2 months after Mr. LeaSure's case had been tried, and he sent a copy of the 22-page transcript. I assembled several exhibits, including the Busey transcript and sent to the Court with a copy to Assustant U.S. District Attorney, Arenda Wright Allen, Esquire, the attorney in charge of the Government's case. On the same day that the Return Receipt indicates Mrs. Allen got my correspondence (March 26, 1996), a letter was sent to me by Mrs. Allen with the same Busey transcript, except that the last 7 pages had been removed, these being where virtually all of the damagine material appeared. I have asked Mrs. Allen to explain this, and I finally heard from her on May 29, 1996, stating that she had sent me everything she had gotten from the Justice Department. As a result of the foregoing disclosures, together with the testimony of Gary Schaible of the BATF that the agency was having a problem with NFRTR clerks destroying registration faxes, Judge MacKenzie threw out all of the convictions except Count 1, and on it he substantially reduced the Guideline indicated penalty. This conviction is being appealed. At this point, I am seeking as full an explanation as possible of what appears to be government misconduct at fairly high levels involving obvious violations of the Bracy rule, coverups by the police (BATF), and tampering with evidence by the Department of Justice. This situation was brought more forcefully to my attention when I received a phone call fromm Mr. Jeffries on Friday, May 24, 1996, advising that he had just received a letter from the Assistant U.S. District Attorney on a case he had with a number of attachments. Knowing that we had received a generally similar letter from Mrs. Allen, he wanted to compare them. page 3 The letters and attachments turned out to be identical, suggesting that it was a mass mailing from the Justice Department (through local AUSDAs) to perhaps hundreds of NFA Branch (Section 5861) cases across the country affected by Busey's statements. In addition, Mr. Jeffries' version of the Busey transcript was complete, making it obvious that someone had removed the pages from my version of the transcript. Please let me know if I may provide you with any further information about this. I shall await your response. Yours very truly, (signed---David N. Montague) David N. Montague 7. Letter to from David N. Montague dated October 3, 1996, from Michael E. Shaheen, Jr. U.S. Department of Justice Office of Professional Responsibility Washington, D.C. 20530 October 3, 1996 David N. Montague, Esq. 1 East Queen's Way Second Floor Hampton, Virginia 23669 Dear Mr. Montague: Thank you for your letter and the material you sent to us on June 4, 1996. We have opened an investigation into the matter. If you have any questions about this, please contact me or Assistant Counsel George Ellard on (202) 514-3365. Sincerely, (signed---Michael E. Shaheen Jr.) Michael E. Shaheen Jr. Counsel 8. Letter to from David N. Montague dated November 21, 1996, from Michael E. Shaheen, Jr. U.S. Department of Justice Office of Professional Responsibility Washington, D.C. 20530 November 21, 1996 David N. Montague, Esq. 1 East Queen's Way Second Floor Hampton, Virginia 23669 Dear Mr. Montague: In a letter dated June 4, 1996, you brought to our attention the fact that Assistant U.S. Attorney Arenda Wright Allen had sent you an incomplete transcript of certain remarks made by an agent with the Bureau of Alcohol, Tobacco and Firearms. Ms. Allen has affirmed to us that which she told you: she forwarded to you in its entirety the material sent to her by the Criminal Division at Main Justice. We have told that component that some of the material it sent to U.S. Attorneys Offices appears to have been incomplete. Thank you for bringing this matter to our attention. Sincerely, (signed--George Ellard) George Ellard Assistant Counsel 9. Letter to George Ellard dated November 27, 1996, from David N. Montague (attorney representing John LeaSure) David N. Montague Attorney and Counselor at Law 1 East Queens Way Telephone: (804) 722-7441 Second Floor Facsimile: (804) 722-8189 Hampton, Virginia 23669 June 4, 1996 George Ellard, Esquire Assistant Counsel U.S. Justice Department Room 4304 Main Justice Building 10th Street and Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Mr. Ellard: I have your letter of November 21, 1996, for reply. You certainly appear to have missed most of the point of my earlier correspondence. In the first place Thomas Busey should not be referred to as an "agent" of BATF. In fact, he was Chief of the National Firearms Act Branch for that agency, and his "certain remarks" came from a lengthy training session for all BATF weapons agents. What Mr. Busey stated was an appalling truth: that when he joined the Bureau the error rate for their records for firearms registrations was 50%, meaning agents' testimony in registration cases was worthless and that perhaps hundreds of gun dealers and manufacturers (inlcuding my client, almost) were in prison with felony convictions that should have been acquittals. To make matters worse, Mr. Busey was summarily fired and the transcript of his remarks hushed up. Busey's career now languishes in the Tobacco Division. His remarks did not become known to the world until obtained on an FOIA request from gun attorney, James H. Jeffries, III, of Greensboro, N.C., who in turn, had heard by the grapevine that such a transcript existed. After Mr. Jeffries gotthe transcript, BATF realized the jig was up and immediately sent it to the Justice Department who it turn transmitted it to Assistant U.S. Attorneys handling cases of this type. My question was, had BATF deleted the crucial last seven (7) pages of the transcript and thereby almost all the damaging admissions? Apparently you have not even looked into this. page 2 The more serious possibility was and is that a very scary conspiracy existed between the Justice Department and BATF to conceal all of these improper convictions even though the price was an unknown number of innocent men and women who had their lives and reputations ruined. Your off-handed treatment of the situation suggests an indifference to a matter going to the essence of the administration of justice and due process. Yours very truly, (signed--David N. Montague0 David N. Montague 10. Complaint to The Honorable Dan Burton, Chairman, House Committee on Government Reform and Oversight dated March 6, 1998, by David N. Montague. [NOTE: This complaint appears elsewhere on this page, as do its attachments: (1) the March 18, 1998 letter from BATF to Eric M. Larson denying Larson's request for a copy of the Busey tape, and (2) the transcript of U.S. vs. LeaSure dated May 21, 1996. A copy of the Busey tape was provided to Chairman Burton, and to an additional 12 members of Congress who were sent copies of this complaint]