IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division JOHN DANIEL LEASURE, Petitioner, v. CIVIL NO. 2:98cv377 CRIMINAL NO. 4:95cr54 UNITED STATES OF AMERICA, Respondent. GOVERNMENT'S ANSWER TO PETITIONER'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO 28 U.S.C. section 2255 NOW COMES the United States of America, through its counsel, Helen F. Fahey, United States Attorney for the Eastern District of Virginia and Arenda L. Wright Allen, Assistant United States Attorney, in answer to the 28 U.S.C. section 2255 Motion for Summary Judgment filed by petitioner John Daniel Leasure (hereinafter Leasure). Leasure contends that the failure of the BATF Agent to inform the Magistrate Judge issuing the search warrant of the error rate of the National Firearms Registration and Transfer Record (hereinafter 'NFRTR") rendered the search warrant a constitutional nullity, and therefore, his conviction should be vacated. On a motion to vacate, set aside, or correct a sentence under 28 U.S.C. section 2255, the petitioner generally bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). See also Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980); United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.), cert. denied, 439 U.S. 834 (1978). A petitioner is permitted to attack the sentence on the grounds that: (1) the "sentence was imposed in violation of the Constitution or laws of the United States," (2) "the court was without jurisdiction to impose such sentence," and (3) "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. section 2255, para. 1. In deciding a section 2255 motion, the court need not hold an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. section 2255; United States v. Rowland, 848 F.Supp. 639 (E.D.Va. 1994); United States v, Yearwood, 863 F.2d 6, 7 (4th Cir. 1988). PROCEDURAL BACKGROUND AND FACTS On February 8, 1994 the search warrant was issued. On November 14, 1995, Leasure was named in a six-count indictment returned by a federal grand jury in the Eastern District of Virginia. Count One charged the defendant with possession of 19 firearm silencers not identified by serial number, in violation of 26 U.S.C. section 5861(i). Counts Two through Four and Six charged the defendant with Possession of firearms not registered in the National Firearms Registry, in violation of 26 U.S.C. section 5861(d), Count Five charged the defendant with possession of machine guns, in violation of 18 U.S.C. section 922(o)(1). On December 1, 1995, arraignment was held before Magistrate Judge James E. Bradberry. Leasure entered a plea of not guilty to the charges and a jury trial was set for January 10, 1996. On January 5, 1996, Leasure filed a Waiver of Right to Trial by Jury. On January 18, 1996, Leasure appeared before the Honorable John A. MacKenzie for a bench trial. On February 6, 1996, the Honorable John A. MacKenzie filed a written order finding Leasure guilty of Counts One, Two, Three, and Six, and not guilty of Counts Four and Five. Sentencing was scheduled for May 21, 1996. On May 21, 1996, the court granted the defendant's motion to dismiss Counts Two, Three and Six. The court also downward departed from a guideline range of 41-51 months, and sentenced Leasure to 12 months imprisonment. Leasure also received three years supervised release and $50.00 special assessment. A fine was waived. On June 6, 1996, Leasure filed a Notice of Appeal on the singular count. On June 21, 1996, the government cross-appealed the Court's decision arguing abuse of discretion by departing downward. On March 31, 1997, the Fourth Circuit Court of Appeals affirmed Leasure's conviction and remanded the case to the District Court for resentencing because the court failed to identify the facts it was relying upon in making the determination to downward depart. On August 8, 1997, Leasure filed a petition for writ of certiorari with the United States Supreme Court. On October 6, 1997, the Supreme Court denied Leasure's petition for writ of certiorari. On October 23, 1997, the case was reassigned to the Honorable Raymond A. Jackson for resentencing. On March 11, 1998, the resentencing was set for April 14, 1998. On April 14, 1998, Leasure came before the Honorable Raymond A. Jackson for resentencing. Leasure was sentenced to 45 months imprisonment to be followed by three years of supervised release. Leasure was ordered to pay a $3,400.00 fine. On April 23, 1998, Leasure filed a Notice of Appeal from the resentencing order entered April 14, 1998. The case was docketed in the Fourth Circuit Court of Appeals on April 30, 1998. On July 21, 1998, Leasure withdrew his appeal so that it would no longer constitute an impediment to his claim under 28 U.S.C. section 2255. On July 29, 1998, The Honorable James E. Bradberry entered an order amending Leasure's motion under 28 U.S.C. section 2241 to a proceeding under 28 U.S.C. section 2255. On September 21, 1998, Leasure filed a Motion for Summary Judgment pursuant to 28 U.S.C. section 2255 to vacate his conviction under Count One of the indictment. ARGUMENT Leasure contends that his conviction was obtained on the basis of evidence seized pursuant to a search warrant that was illegally and unconstitutionally procured by agents of the Bureau of Alcohol, Tobacco and Firearms and that error requires reversal of his conviction under Count One of the indictment for possession of 19 firearm silencers not identified by serial numbers, in violation of 26 U.S.C. section 5861(i). The government takes the position that Leasure's claim should be denied in light of the fact that he has already received relief. In late February 1996, after the trial, but before the sentencing hearing, the government received a package of materials from the Criminal Division, United States Department of Justice. See Attachment A, hereinafter the "Busey Packet." The package contained information indicating that the NFRTR had an error rate of 49 to 50 percent. This information was disclosed to defense counsel and to the court immediately upon its receipt from the Department of Justice. See Attachment B. Once the court heard testimony that the record keeping at the NFRTR had a 49 to 50 percent error rate and that this information was fully knowledgeable within the National Firearms Bureau at the time of Leasure's trial, but not brought up during the trial, the court dismissed Counts Two, Three and Six of the indictment. The court stated the following: Ms. Allen, this isn't to impune anything dishonest from you. I think you sent to them whatever you've received, but Mr. Schaible has testified that they knew all about Mr. Busey's statement in the National Firearms people. It's 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. That's not your fault. (Sent Tr. dated May 21, 1996, page 45). The court further found that the 19 firearm silencers referenced in Count One of the indictment had nothing to do with registrations or the "Busey Packet." (Sent Tr. pages 45, 46). The court stated: I'm going to throw out the convictions that have to do with registrations. I'm going to throw out Count 2, 3, and 6 so that the only count left is Count 1, that's the one I want to hear addressed at this time. That's got nothing to do with registrations, we're talking about silencers. The motion for a new trial is denied because it was addressed only to Counts 2, 3, and 6. I have thrown out Count 2, 3, and 6, so the motion for a new trial is denied. (Sent Tr. 45). Therefore, with regards to the defendant's late receipt of the "Busey Packet", the court granted the defendant's request to the counts affected by the "Busey Packet." The central question now is whether the case agent's failure to inform the magistrate about the "Busey Packet" renders the search warrant a nullity and whether the other allegations in the affidavit independently establish probable cause. In determining whether probable cause exists based on an affidavit, the Supreme Court stated that a magistrate must simply: make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause requires "only a probability or substantial chance of criminal activity, not an actual showing of such activity," Id. at 243 n.13, and "innocent behavior frequently will provide a basis for a showing of probable cause. . ." In Franks v. Delaware, 438 U.S. 154, 171-172 (1978), the Supreme Court addressed the constitutionality of a search warrant supported by an affidavit of questionable veracity. The Court explained that the correct course was to set aside the suspect material and make a probable cause evaluation based on what remained of the affidavit. See also United States v. Gillenwaters, 890 F.2d 679 (4th Cir. 1989). In United States v, Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987), cert. denied, 487 U.S. 1234 (1988), where a warrant affidavit contained information obtained in an illegal search, the court held that "the inclusion of this 'tainted' data d[id] not invalidate the warrant" when the affidavit's other averments set forth probable cause. See also United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1992) (The inclusion of tainted evidence does not invalidate a search warrant if enough untainted evidence supports it). In United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990), cert. denied, 498 U.S. 1052 (1991), the court held that the trial court's findings that statements in the affidavit were not deliberately false or in reckless disregard of the truth are not clearly erroneous, and that the warrant is supported by information sufficient to find probable cause under the "totality of the circumstances" test announced in Illinois v. Gates, 462 U.S. 213 (1983). After examining Agent Dutton' s affidavit, the court may conclude that probable cause existed independent of the "Busey Packet" obtained from NFRTR. Subtracting that information, the affidavit used by the Magistrate Judge to find probable cause stated the following: 1. That ATF Inspector Charles Turner began an inspection of Precision Arms International, Inc. (hereinafter PAI) on February 1, 1994, after the Richmond Inspections Post of Duty received several complaints that several individuals had shipped firearms to PAI for repair or to have silencers attached and their firearms were not being returned. 2. That PAI is owned by John Daniel Leasure, a Federal Firearms Licensee and manufacturer of NFA (National Firearms Act) weapons. 3. That acquisition and disposition books are to be kept by all Federal firearms licensees as required by Title 27, Code of Federal Regulations, Section 178.125(e). 4. That when Inspector Turner requested a copy of PAI's acquisition and disposition books, Leasure told Inspector Turner that his acquisition and disposition books were maintained by computer and he could not retrieve this data from his computer. 5. That upon learning that acquisition and disposition records were not available, Inspector Turner requested and received an inventory from the NFA Branch of ATF that indicated that approximately 30 firearm silencers located on the premises were registered to persons and/or businesses other than PAI. 6. That the 30 firearm silencers were being held by PAI in violation of Title 26, United States Code, Section 5841(e). 7. That during an inspection Inspector Turner requested a registered sear pin and silencer and observed Leasure obtain the sear pin and silencer from a locked safe, which Leasure relocked after retrieving the requested items. 8. That Leasure has a history of violating NFA regulations. 9. That during a 1989 inspection by ATF, Leasure received a verbal warning that he was manufacturing NFA weapons without proper registration. Despite the fact that neither the undersigned or the case agent knew about the "Busey Packet" when the search warrant was issued, there is substantial uncontroverted evidence that the firearm silencers possessed by Leasure were not stamped with any identifying markings. Therefore, under the totality of the circumstances, the Magistrate Judge had a substantial basis for finding probable cause independent of the fact that the affidavit failed to mention the "Busey Packet." CONCLUSION The Magistrate Judge had a substantial basis for concluding that probable cause existed to issue a search warrant. Therefore, for the foregoing reasons, Leasure's motion for relief under 28 U.S.C. section 2255 should be denied. Respectfully submitted, HELEN F. FAHEY UNITED STATES ATTORNEY --------------------- By: Arenda L. Wright Allen Assistant United States Attorney World Trade Center, Suite 8000 101 W. Main Street Norfolk, Virginia 23510 (757) 441-6331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Answer was mailed, first class postage prepaid, this 18th day of December, 1998, to: David N. Montague One East Queen's Way 1st Floor Hampton, Virginia 23669 ----------------------- Arenda L. Wright Allen Assistant United States Attorney