IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division UNITED STATES OF AMERICA ) ) CRIMINAL ACTION v. ) ) NO. 4:95cr54 JOHN DANIEL LEASURE, ) Defendant. TRANSCRIPT OF PROCEEDINGS Norfolk, Virginia April 14, 1998 Before: THE HONORABLE RAYMOND A. JACKSON United States District Judge Appearances : ARENDA W. ALLEN Assistant United States Attorney Counsel for the United States DAVID N. MONTAGUE Counsel for the Defendant THE CLERK: Case 4:95cr54, United States of America versus John Daniel Leasure. Ms. Allen, is the government ready to proceed? MS. ALLEN: Yes, Your Honor. THE CLERK: Mr. Montague, is the defendant ready to proceed? MR. MONTAGUE: Yes, we are. THE COURT: Good morning, ladies and gentlemen. We were scheduled to start at 9:30, Mr. Montague. What happened to you? MR. MONTAGUE: Well, I -- THE COURT: Step to the podium. MR. MONTAGUE: In 35 years of practicing in federal courts, I have never had what happened today happen, and that is to have a Newport News case have any proceeding over here without being notified that it was over here. I have no problem with being here, but I talked to Michael Gunn, and I talked to Beth, and nobody had -- there was nothing in writing, and at no point did anybody mention this was in Norfolk. So we got to Newport News a half hour early, and I went to check something in the clerk's office, and she said, well, it is not on this side. So we got here as quickly as we could after that. So we are very sorry for any inconvenience we may have caused the court. That's what happened. I just had no indication it was going to be over here. THE COURT: All right. We are here this morning to conduct a resentencing of the defendant, Mr. John Daniel Leasure -- is that the correct pronunciation? THE DEFENDANT: Yes, sir. THE COURT: Okay. We are doing this pursuant to an order of the United States Court of Appeals for the Fourth Circuit. This case was originally handled by Judge John MacKenzie, and it appears that the case has been remanded for resentencing within the guideline range because Judge MacKenzie downward departed. The court has reviewed the presentence report and has reviewed the prior rulings of Judge MacKenzie, and it appears from the court's scrutiny of the record that there are no more objections to be handled in this presentence report. Is that in accord with your understanding, Ms. Allen? MS. ALLEN: Yes, it is, Your Honor. THE COURT: Mr. Montague? MR. MONTAGUE: Yes, sir, that's my understanding. THE COURT: All right. Then the court would announce that the total offense level is 22, criminal history category is I. The guideline custody range is 41 to 51 months. Mr. Montague, does the defendant have any witnesses he wishes to call as a part of this resentencing hearing this morning? MR. MONTAGUE: Only himself, Your Honor. He would like to make a statement. THE COURT: Stand up, Mr. Leasure. Sir, you have the right as a defendant to exercise one of three options. You have a right to make a sworn statement from the stand if you desire to do so, or you may choose to make an unsworn statement at the appropriate time from the podium, or you may choose to remain silent and permit your counsel to argue on your-behalf. I understand that you wish to make a statement. Does he wish to make a sworn or unsworn statement? MR. MONTAGUE: It would be a sworn statement, Your Honor. THE COURT: Okay. At this time the court is prepared to hear any testimony which you wish to put on, Mr. Montague. MR. MONTAGUE: Maybe I should mention, Your Honor, that what he proposes to tell the court -- he gave recent testimony in Congress about problems affecting the Alcohol, Tobacco and Firearms Bureau, and that's what he wants to review with the court today, things that he said in the Congressional -- THE COURT: Well, the defendant has a right to make a personal statement, but he certainly should know, as I'm sure you know, that it is beyond the court's jurisdiction in this sentencing to do anything about the ATF firearms enforcement policies or regulations. So rather than get into a detailed review of that, I would prefer he would stay away from that, but I'm certainly prepared to listen to a statement from him, if that is his choice. MR. MONTAGUE: All right, sir. Thank you. Do you want him in the witness box? THE COURT: Yes, if he is sworn, he needs to take the stand and raise his hand. Would you be guiding him through this testimony, Mr. Montague -- because ordinarily if the witness is going to take the stand, we would prefer he be guided by counsel through the testimony. MR. MONTAGUE: In that case, I will undertake to do that, Your Honor. Thank you. THE COURT: Okay. Fine. (The defendant was sworn.) JOHN DANIEL LEASURE, DIRECT EXAMINATION in his own behalf, as follows: DIRECT EXAMINATION BY MR. MONTAGUE: Q. Sir, you are John Daniel Leasure, the defendant in this case? A. Yes, I am. Q. And you understand that you are here today for consideration of resentencing for your prior conviction two years ago? A. Yes, sir. Q. And I understand that you have a statement that you would like to make to the court regarding your feeling about all that has happened to you, and I would ask that you proceed with that. A. All right, sir. I had basically had this testimony that I was going to read, but I am going to have to go through and pull some things out, since I can't read the whole thing. I guess basically I'm going to -- I'm just going to hit the part that -- the effect this has had on my personal life. This conviction has basically taken over my life. 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 our five-year-old son. As you know, six months later I was served with the indictment. It is almost impossible, as I have said, to put into words the stress that befell our home life. The fear of having my son lose his new father would have been devastating to him, not to mention myself 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 state and felony dockets. After seeing such a gross miscarriage of justice, she was mentally no longer able to perform her duties in court hearings. She lost all faith in the justice system. We feared for our safety due to retaliation from the BATF. Echoes of Waco, Ruby Ridge, and John Lawmaster went through our minds constantly. Even today we fear writing to you may prompt retaliation by the DATE. 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 BATE 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 had better not show up at trial. During this time I received numerous prank calls, some using foul language, and constant hangups. I never even bothered asking anybody in the NFA manufacturer or dealer industry to testify on my behalf, because the same kinds of errors in the national firearms registration and transfer records they have experienced. The BATF scared them, because the BATF can put you out of business. Knowing what has been done to me, I could never criticize anyone 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. As legal fees, our bill with David Montague is in excess of $30,000, and the clock is still ticking. We have previously paid 7,000. This is not included. My attorney, Steve Halbrook, who filed my appeal -- his bill is $25,000. 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. In conclusion -- and this was to Mr. Chairman; this statement was read before the Subcommittee on Treasury, Postal Service, and General Government Committee Appropriations on April 3 of this year. Mr. Chairman, on March 25, '97, 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 and truthful evidence. It is possible by the time you read these words I will be exonerated. But I don't want to stop this 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 of effort by the BATE 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 and Congress will use your authority to support reforms to prevent any of this from ever happening again. Thank you. That's all I have. MR. MONTAGUE: I don't have any further questions, Your Honor. THE COURT: All right. Any cross-examination? MS. ALLEN: Yes, Your Honor. CROSS-EXAMINATION BY MS. ALLEN: Q. So, Mr. Leasure, basically what you are trying to tell the court was that the charges that you were indicted for are a result of a conspiracy between the government and BATF to put you out of business; is that correct? A. Actually it is not just my statement on that fact. There are others that have testified before Congress this last week of similar issues. Q. Okay. So is the answer to my question yes or no, that you believe that the indictment is a result of a conspiracy between BATE and the government to put you out of business? A. No, ma'am, I believe the indictment was a result of faulty records and sloppy recordkeeping by ATF. Q. Okay. And you would agree with me, then, that Judge MacKenzie dismissed counts 2, 3 -- MS. ALLEN: Excuse me for a second, Your Honor. BY MS. ALLEN: Q. -- counts 2, 3, and 6 as a result of your allegations that the paper work that you sent to BATE had not been received; correct? A. That's correct. Q. So therefore you understand that you are not being held accountable for the firearms that were listed in counts 2, 3, and 6; correct? A. Well, no, because the indictment -- excuse me -- the search warrant that was originally obtained was based on the accuracy of the national firearms transfer records. Q. Okay. But you would agree with me that the firearms that you are being held accountable for in count 1 have nothing to do with registration at all, and that the crime is just possession of silencers that didn't have a serial number? A. Well, what I would have to say there is -- and I'm sorry, but I will still have to say this: The way the regulations are written, any part is considered a silencer. I was licensed by the government of the United States to manufacture those parts and obtain and hold those parts. It would be the same if I were to call another manufacturer, just like myself at the time, and ask him to make me 200 silencer parts of the same type. He could ship them to me. We would not even have to do any paper work whatsoever. Those are silencers, under ATF's own admissions and rules. Q. Would you agree with me that you do not have to register -- you were not charged with failure to register the silencers that are listed in count 1 of the indictment? A. I'm sorry, would you repeat that? Q. Okay. Are you familiar with the charge in count 1 of the indictment? A. Yes, ma'am. Q. And it charged you with possession of silencers without a serial number. A. Yes, ma'am, that's correct. Q. And you would agree with me that that charge has nothing to do with paper work and your failure to register those silencers? A. No, ma'am, I would not agree with that. MS. ALLEN: I have no further questions, Your Honor. THE COURT: All right. You may step down. THE WITNESS: Thank you. THE COURT: I'm prepared to hear any argument you wish to offer, Mr. Montague. MR. MONTAGUE: Thank you, Your Honor. I have, of course, looked closely at both the opinion of the court of appeals and the Koon v. United States, which apparently was decided just a matter of about two weeks after this case, after the sentencing of this case had taken place. And essentially what the court of appeals said -- they didn't say there was anything wrong with the sentence. They said that we can't tell what Judge MacKenzie based his sentence on, his downward departure from the guideline sentence. And Koon had said that if a departure is appropriate, the district court must make a refined assessment of the many facts that bear on the outcome, informed by its vantage point and day-to-day sentencing experience. Certainly, nobody had much more sentencing experience in this court or anywhere in the United States than Judge MacKenzie. He was a fine judge of rocklike integrity who approached this case, I think, very thoughtfully. And meaning no disrespect to this court, I thought he was the one that should hear this resentencing because he had all the background and he knew what was in his mind when he made his decision on the sentence on the one remaining count on the indictment. I might say this, Your Honor, and I'm diverting from what I planned to say a little bit in saying this, but this defendant was a licensed Class 2 manufacturer of firearms. His specialty was silencers. And he could also under that license have made hand grenades or bazookas or land mines or machine guns, but his specialty was silencers, of which he was a major player in the world of silencers, holding a patent on what is probably the best silencer today in the world. As such, his market was to the United States government agencies such as the Army and the CIA, and to U. S. allies such as Canada and Israel. Like all inventors, what he had done in this case was to experiment, tinker with different ways of doing his thing, and when a silencer didn't perform up to his standards, he didn't throw it away, he simply put it in a locked steel cabinet in his shop, where he considered it at that point to be parts. It was an experimental silencer that had failed, and it might be worked on further or the parts might be cannibalized and put into another piece of equipment. Since the silencers in that condition were only put together enough to be fired, they had not been polished or finished, and they had not been Loctited, as they call it, so that they can't be disassembled. Under that configuration, if he stamped the serial number into the silencers and then finished it, of course he would take off the serial number, so it didn't make sense to do it at that stage, to him. And he was also mindful of a regulation that Judge MacKenzie didn't agree with us on, but it seems to me to say that where the silencer is not an integral part of a weapon, it doesn't have to be marked until it is sold or otherwise disposed of. And so of course he was never going to sell those or otherwise dispose of them, he was just going to keep them for parts. At the very most, his crime here was a misunderstanding of the regulations made in good faith. THE COURT: Judge MacKenzie obviously tried the case, and he obviously believed he was guilty of the offense, and he had no problem finding the essential elements here. MR. MONTAGUE: That's correct. THE COURT: So not only did he find him guilty, when he sentenced him, of course, he did have a full understanding of the background, and I have reviewed that record. I have reviewed the record, I have reviewed the presentence report here, and he is merely being sentenced for those things that Judge MacKenzie found him guilty on. I understand his procedure, but obviously Judge MacKenzie wasn't persuaded by what the defendant offered here regarding the reason he had these silencers. MR. MONTAGUE: I understand we are not here to retry the case, Your Honor. What you say is correct. Let me comment on what I think was going on. Judge MacKenzie was -- I don't mean to talk about him like he is dead -- but certainly as a judge was a man of great discretion, and I think there were things he felt about the turn this case had taken. I think he felt appalled by what he saw brought in his courtroom. After what appeared to be a more or less flawless trial in January, we then received word of this hearing or roll call training session that was held in BATF in October of '95, about six months prior to the trial, in which the man who was the head of the bureau where they do the registering of firearms and making these certifications came out and said there was a 50 percent error rate. I think the court of appeals omitted what I think is the most important thing that he said, which really gives us a very strong clue as to what his attitude was. And the background of this was I had received the same day I mailed -- when I got this roll call thing, it was 20-something pages long. I had mailed it to the court and to Ms. Allen, and the very same day I received from Ms. Allen the same thing that I had sent, except that it was missing seven pages, the last seven pages, where practically all of the damaging stuff, damaging to the ATF, appeared. The portion that she sent ended at the bottom of the page with a period. It seemed to be a completed thought. It wasn't what you considered to be a normal conclusion, like, are there any questions, which actually is at the real conclusion of the thing. But I was suspicious, not of Ms. Allen particularly, but probably somebody at main Justice or at ATF itself had laundered that transcript and taken out the most damaging part. And so that's the background of why Judge MacKenzie said this, and I'm looking at page 45 of the transcript from the sentencing hearing, May 21. "Ms. Allen, this isn't to impugn anything dishonest from you. I think you sent to them whatever you received. But Mr. Schaible has testified he knew all about Mr. Busey's statement and the national firearms people, it is 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." I think that is the most important thing that Judge MacKenzie said, and I think we have to extrapolate from that, not only knowing the kind of man that he is, but that he had a full presentation of this case and had made his decisions, and at the sentencing hearing -- and I haven't heard of this happening in quite this way, but Mr. Leasure had been convicted on four counts of a six-count indictment. At the sentencing hearing he throws out three of the counts because of this terribly flawed testimony, the failure of a government agent to tell the whole truth, in effect to commit perjury. I think he was just so horrified that that happened that he just did not want to say too much, and I think that's why he didn't say very much in his decision to make the downward departure. I'll make several other points. Of course we had a failure on the part of the Justice Department, if they knew about this Busey transcript, talking about the 49 to 50 percent error rate, not to have produced that for us prior to trial as a matter under the Brady rule, as exculpatory material. Had that happened, we would have certainly made a motion to suppress all of the evidence because of the fact that the certification that had been used to get the search warrant in the first place was -"tainted" is too weak a word. It was worthless. It was a coin flip, 50 percent error rate. What kind of evidence is that? No court would ever allow it if the court knew what was going on, and Judge MacKenzie certainly did not, and I didn't, and I really don't think Ms. Allen did. I don't know who did, other than people at the ATF and the NFA branch, but certainly none of us did, and we were going along with the usual trust and confidence you would put in government agents and government recordkeeping, that they would tell us the truth. I think that it's pretty clear -- Judge MacKenzie does mention this, that the heavy-duty nature of Mr. Leasure's standing in the international weapons community was something that he considered, the fact that he dealt almost exclusively with governments, and we presented a lot of evidence to that effect -- that was a little dicey, too, because a lot of that stuff was top secret, so a lot of it had been redacted -- and the fact that his dealings with the government were, of course, subject to regulation at that level. I think all of those things were important to him in his decision, that this just wasn't some -- the corner gun dealer coming in, having fouled up. This was a guy who was really a player in the world weapons community. This was a case where -- and this is true of most of the gun laws, but it is still a never-ending source of astonishment to me, that here we have an act that we call a felony that is in the complete absence of any traditional sense that there is guilt or moral turpitude, mens rea, there was no conspiracy, no racketeering, no criminal enterprise, no desire to hurt anybody, all those things we normally associate with crime. Of course I understand the regulation of firearms, because they are potentially dangerous in the wrong hands, and certainly with silencers, in the hands of an assassin, the silencer itself isn't dangerous, but certainly combined with the weapon it can be very deadly. The Koon case is fact specific, and so we don't get too far comparing the actual statements, the things that the Supreme Court found fault with, to this court's departure. For example, one of the bases for departure was that the fact that these police officers were convicted of a crime or civil rights violation under color of law was going to hurt them in their employment. Well, of course. But in this case the fact that Mr. Leasure has been convicted of a gun felony eliminates his work. He can't even own a gun, let alone get a license to manufacture them or sell them or do anything with them. He is out of the gun world forever unless this thing can somehow be turned around. Judge MacKenzie didn't rely upon that. He knew it, of course, but he certainly didn't use that as a basis for a downward departure. Another was the risk of recidivism was very low with these Los Angeles police. Well, the risk of recidivism of Mr. Leasure is no existent, but that was not used as a factor by Judge MacKenzie. So those are just two boo-boos committed by the sentencing court in the Koon case that are not present here. The Koon case is replete with comments about the deference that has to be shown to the sentencing court. Unlike appellate courts, district judges such as Your Honor spend a great deal of your time sentencing and thinking about sentencing, knowing what other judges are doing with sentences for like acts, and harmonizing your rulings so that you don't commit the -- what the Koon case said the guidelines were all about, and that was to reduce the unjustified disparities and so reach towards the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. And of course the other half of that apple is what I have already mentioned, the part of a principled system of justice, that you have honest testimony from the police and. honest presentation of records reliably kept, which when Judge MacKenzie realized that was not present in this case, he threw out all but this one charge. The reprehensible conduct in this case was not that of the defendant, it was that of the police. If that doesn't take it out of the heartland of cases of errant gun manufacturers, I don't know what would. I think just as the Supreme Court has said that deference is owed to the sentencing court who heard the case and made its decision based upon the guidelines and the downward departure factors that it thought were there, likewise this court of course knows Judge MacKenzie, knows him to be a man of 30-something years' experience and of solid integrity, and -- THE COURT: I think you can assume, Mr. Montague, that the judges here in this court, all of us have solid integrity, notwithstanding the years of experience. MR. MONTAGUE: I didn't mean -- THE COURT: You have said that several times, though, but I want you to be assured that he will be sentenced based upon the law and the facts. MR. MONTAGUE: Yes, sir. Well, what I was leading up to finishing with was that this court should also, I believe, show deference to Judge MacKenzie's opinion in the matter. THE COURT: Ms. Allen? MS. ALLEN: Your Honor, when Mr. Montague is referring to Judge MacKenzie's statement at the prior sentencing on page 45, he neglected to turn over to the next page, on page 46, where Judge MacKenzie said, Let me make some notes. It seems to me that the court, having thrown out counts 2, 3, 4, 5, and 6, the only thing left is count 1, of which I found that the silencers in count 1 have nothing to do with the registration. And that's the point here. The guideline range is from, right now, 41 to 51 months, and the government is not asking for a specific sentence, but the government is going to point to certain factors that I would ask the court to consider in assessing a sentence against Mr. Leasure. Number one, counts 2, 3, and 6 were dismissed because of allegations that were made against ATF regarding their error rate. The government's witness testified at the prior sentencing on May 21, 1996, that notwithstanding his knowledge of the error rate, that in no way did that change his opinion that Mr. Leasure had not properly registered the firearms that were listed in counts 2, 3, and 6, number one. Number two, what Judge MacKenzie did, then, basically was split the baby. That's what Judge MacKenzie did. The counsel is saying Judge MacKenzie felt appalled by what happened in the courtroom. The record is in the court's file of the trial and sentencing. Judge MacKenzie has never been shy about putting on the record when he is angry with anyone, and there was no evidence in any of the trial proceedings that Judge MacKenzie was appalled. What Judge MacKenzie did was he saw that there was an allegation that even though the government still says that allegation has nothing to do with Mr. Leasure's guilt on counts 2, 3, and 6, he split the baby; he eliminated an appellate issue. That is exactly what Judge MacKenzie did. Now, let's look at what he did and then look at the benefit that Mr. Leasure has already received. So counts 2, 3, and 6 are dismissed because there is no right-wing conspiracy between BATF and the government to put Mr. Leasure out of business. Count 1 deals with possession of silencers without a serial number. Point blank, you possess it, you look at it, and it doesn't have a serial number. So regardless of what the error rate is with the members of this right-wing conspiracy, the fact of the matter is that he possessed silencers that didn't have a serial number, and the fact of the matter is, when the search warrant was executed, he had ten years of experience in the federally licensed firearms business, and he should have been doing it properly. Now, Judge MacKenzie dismissed counts 2, 3, and 6, and Judge MacKenzie found the defendant innocent of counts 4 and 5. Now, this court is well aware of the Fourth Circuit precedent that says if there is an acquittal, if there is dismissed conduct, and even if there is uncharged relevant conduct, that all of those things can be considered in sentencing one. So if we wanted to follow the Fourth Circuit law in this case, despite the dismissals and the acquittals, Mr. Leasure should be facing a guideline sentence of 51 to 63 months, as opposed to 41 to 51 months, and that's pursuant to the Bowman Fourth Circuit 1991 decision which is found at 926 F.2d 380, pages 381 to '82, which says you sentence on uncharged conduct; and the Romulus decision, a Fourth Circuit 1991 decision, found at 949 F.2d 713, which says you can consider acquitted conduct. So notwithstanding the arguments of the 50 percent -- let's say a hundred percent error rate at this point, we are looking at count 1, and we believe that that guideline range of 41 to 51 months totally ignores Fourth Circuit precedent. That's one factor that the government would ask the court to consider in assessing a sentence. It is clear, based on paragraph 16 of the presentence report, as noted by the probation officer, that the defendant did not accept responsibility then. The government wasn't sure, coming to court this morning, whether or not Mr. Leasure would accept responsibility now. But it is clear, based upon the limited cross-examination that was done, that Mr. Leasure still has an explanation for everything, and everyone is at fault except for Mr. Leasure. We also point to paragraph 72 of the presentence report which stated at that time, which is still applicable now, that there is no basis for a downward departure. Then we get to the Koon decision, and the Supreme Court tells us that before a departure is permitted, certain aspects of the case must be found so unusual enough that it must fall outside the heartland of the cases. The Fourth Circuit said, well, hey, Judge MacKenzie, we are not sure what factors you were looking at. If we look at the record, we see one thing that Judge MacKenzie alludes to, the fact that silencers ranged in size from small to considerable. The government's position would be that that does not logically justify a downward departure. All 19 silencers that were listed in count 1 were complete and operable, as testified to even by the defendant during the trial, and the fact that some are small or that he was manufacturing the smallest in the industry makes them even more dangerous. Judge MacKenzie alluded to the fact that the silencers were in a locked cabinet. The fact that the silencers were in a locked cabinet does not take the case out of a heartland offense. We would hope a manufacturer of silencers would be expected to keep everything in a safe, locked, secure place. The remaining factor that Judge MacKenzie alluded to, that Mr. Leasure made sales to government agencies, the government's position would be that that is not a factor that sets the offense outside the heartland. There is no evidence that the silencers in count 1 were made for any government contract or that they were authorized to be made and possessed without serial numbers by any government authority. Thus pursuant to Section 5H1.5, the defendant's prior employment with the government or prior sales that he made to the United States is not something that we should consider in going outside the guideline range. If you look at application note 11 of 2K2.1, it states that a defendant whose offense involves destructive devices as defined in 2K2.1(a)(5) gets a base offense level of 18, because these weapons, here silencers, pose a considerably greater risk to public welfare than other firearms. THE COURT: Ms. Allen, the court does not interpret Mr. Montague's motion to be a motion for downward departure here. MS. ALLEN: You did not? THE COURT: He argued about one, but the court has searched here, and the court did not find a motion for downward departure filed for this sentencing this morning. MS. ALLEN: If that's the case, Your Honor, I don't have anything to argue -- THE COURT: Do you have a motion for downward departure filed this morning? MS. ALLEN: No, I do not. THE COURT: Well, the court has not interpreted it as having a motion for downward departure made this morning for purposes of this sentencing hearing. MS. ALLEN: That was my understanding -- and I am probably incorrect, but my understanding was that there was an oral motion for downward departure. THE COURT: All right. Then, fine. MS. ALLEN: And if I'm -- THE COURT: Let me get this straight. Mr. Montague, are you intending to make an oral motion for downward departure by your argument? MR. MONTAGUE: I certainly do, yes, sir. THE COURT: Then, fine. You can continue. MS. ALLEN: That is all I have. Those are just the factors that I'm stating, heartland of the offense. THE COURT: That's fine. All right, Mr. Montague, anything else you wanted to say? MR. MONTAGUE: Just very briefly, Your Honor. For some reason Ms. Allen is sort of hung up on this idea that Mr. Leasure is some kind of a right-wing nut case. I know it is popular perhaps to perceive people involved in the weapons trade as being that way, but he is not that way. He is certainly no member of any conspiracy or anything of that kind. THE COURT: Well, the court doesn't have any notion he was a right-wing nut or member of any right-wing conspiracy. MR. MONTAGUE: The court is right. THE COURT: The court didn't interpret her remarks to be that representation either. But -- MS. ALLEN: Well, let me put this in the record, why I made that statement, Your Honor. There has been a complaint against me in the Office of Professional Responsibility that was made back in 1996. Mr. Montague was informed at that time that the complaint against me was dismissed because there was no basis for it. Additionally thereafter there was a complaint made to the Office of Professional Responsibility, and in your complaint it states Mr. Montague contends that there is a probable conspiracy between the Department of Justice and the Bureau of ATF regarding the withholding of these materials, and they have also told him there is no basis for that, but yet here we are in court still bringing up these same issues. So there is a basis why I was saying that. I wasn't just creating it out of the air. THE COURT: Let me assure both counsel, I'm not sentencing on the basis of any alleged improprieties by any agency or any right-wing conspiracy or any alleged involvement by the defendant in any type of conspiracy or with any group. The court is not sentencing based on any of those factors with respect to either party in the case. So let's just make the record clear on that this morning. All right. Step to the podium, Mr. Montague and Mr. Leasure. All right. First of all, with respect to your motion for downward departure, Mr. Montague, the court has read several times the court of appeals' ruling in the case of this defendant. The court is very familiar with the United States Supreme Court's holding in the Koon case, as well as it is familiar with Fourth Circuit precedent regarding when you can downward depart based upon personal experience. Secondly, I would add that the court has scrutinized the record here, and the court does not find that there is a basis for a downward departure. None of the events that you have cited to the court takes this case out of the heartland of the sentencing guidelines. In other words, there are no aspects of this case that are so unusual that the case falls outside the heartland of the cases in the guidelines. So the court cannot find any legal basis to grant a motion for downward departure with respect to the defendant in this case. There is simply none here. Judge MacKenzie did downward depart, and the court read his reasons, and his reasons were rejected by the court of appeals, and as you say, we are bound to follow the precedent of the court of appeals even when we apply the guidelines set forth in Koon versus United States. Now, with respect to the sentence in this case, the court finds nothing in this record to establish to the satisfaction of this court's mind that there is some conspiracy on the part of the Bureau of Alcohol, Tobacco and Firearms against this defendant. The court focuses upon what this defendant was convicted on, and no conspiracy had anything to do with count 1, not having any type of serial number on the silencers. So the court has declined to accept that as being something that has adversely impacted on this defendant's rights here in respect to this charge. So the court will sentence based upon the presentence report and the guidelines set out by the Sentencing Commission in this case. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court the defendant John Daniel Leasure is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 45 months. The term consists of 45 months on count 1 -- one second. The term consists of 45 months on count 1. The defendant shall surrender for service of the sentence at the institution designated by the Bureau of Prisons before two o'clock p.m. on April 28, 1998, as notified by the United States marshal. Upon release from imprisonment the defendant shall be on supervised release for a term of three years. Defendant shall refrain from any unlawful use of a controlled substance, submit to one drug test within 15 days of release on supervised release, and at least two periodic drug tests thereafter, as directed by the probation officer. The defendant shall also comply with following additional conditions. Defendant shall provide the probation officer access to any requested financial information. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer. The court has considered your negative net worth, Mr. Leasure, your liquid assets, your lifestyle and financial needs as reflected by the presentence report, your earning potential upon release from incarceration, and having considered these, the court finds that you are capable of paying a fine in the amount of $3400. Accordingly you shall pay the following total penalties. As to count 1 of the indictment, you shall pay the special assessment of $50. As to count 1 of the indictment, you shall pay a fine of $3400. So the total fine is $3400. No restitution is imposed in this case. The fine shall be due in monthly installments over a period of three years, to commence 30 days after you are released from confinement. Those monthly installments shall be in the amount of a hundred dollars. You are cautioned that the fines and special assessment may be subject to penalties for delinquency and default, in the event you do not pay them. You are also advised that the fines or penalties may be paid while you are in prison. You may make those either to the clerk or to the clerk of the United States District Court. Mr. Leasure, you have a right to appeal this sentence that the court has imposed upon you. I'm sure you already know that. But the court informs you that you have a right to appeal, and your counsel will issue and take, if necessary, appropriate steps to appeal the sentence. Are there any other matters to come before the court on this sentencing? MS. ALLEN: Nothing from the government, Your Honor. MR. MONTAGUE: Your Honor, the only thing I would ask, and this was the reason for my motion for continuance, which in this court has a very short life span, as the court knows, but I was trying to coordinate the parallel matter raised by the petition for habeas corpus. I do think that that has a high probability of success. We have substantial evidence to produce for the court, and my hope was that Mr. Leasure would not actually ever have to be -- if that was successful, would not have to go through a period of separation from his family at all. And so I would like to get that set as soon as it can be. I have no idea what the court's procedure is on setting such matters, but I would ask it be provided if we could. THE COURT: Let me say this, Mr. Montague. The court received the 2241 petition and read the 2241 petition. As you well know, the court determined it wasn't appropriate to take it up as part of this matter. That petition has been docketed, and it will be assigned to one of the judges of this court in the routine manner. And whether it is a 2241 or 2255 petition in the court, the court is not inclined to comment on the likelihood of success of that petition. At this time the court cannot comment on that. MR. MONTAGUE: I don't expect you to, Your Honor. Could you give us any idea -- you say it is going to be dealt with in the normal course of events. When might that be? THE COURT: I cannot comment on that, Mr. Montague. I don't know how long that is going to take to process that. Sometimes they move very quickly; sometimes it can be two months, three months. I do know that we do process them through as expeditiously as possible, because we get a lot of collateral attacks on convictions, but we move them as expeditiously as possible through the system. MR. MONTAGUE: Thank you very much. THE COURT: Is there anything else? THE DEFENDANT: Thank you, Your Honor. THE COURT: All right. If there is nothing else -- MR. MONTAGUE: There is nothing else from us. THE COURT: -- the court will stand in recess. (Court was adjourned, after which the Judge resumed the bench, as follows:) THE COURT: Back on the record. I'm sorry. Mr. Montague, there is one matter I did fail to handle here. Mr. Leasure, the court has left you to report on your own on April 28 before two o'clock p.m. You are still on the bond that the court left you on. But I want to caution you, as I do all defendants, that you are now a convicted felon, and you have been sentenced. If for any reason you do not report by two o'clock p.m. on the date designated, you will be facing additional charges, and the court would recommend that you be charged with bail jumping. So you should report at the time indicated. Now, if the United States marshal tells you what institution to report to, then you report there. Otherwise, you be here by two o'clock p.m. on the 28th so that you can, in fact, begin the service of sentence. THE DEFENDANT: Yes, sir. MR. MONTAGUE: I can assure the court it has nothing to worry about on that score. You are saying report to the clerk's office, or -- THE COURT: No, the U. S. marshals' office here right across the hall on the first floor, no later than two o'clock p.m. on the 28th. MR. MONTAGUE: Let me say again, Your Honor, I'm sorry we were late. THE COURT: That's fine. The court simply wanted an explanation on the record, which it usually does receive when counsel are late. MR. MONTAGUE: Absolutely. I should have asked somebody, I guess, but I never had this come up before. THE COURT: Okay. We are now in recess. (Proceedings were adjourned at 10:52 a.m.) INDEX On behalf of the defendant: Direct Cross John D. Leasure 5 9 CERTIFICATION I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Gloria S. Smith 4/22/98 Date