DECLARATION OF JAMES H. JEFFRIES, III
I, James H. Jeffries, III, make the following declaration pursuant to 28 U.S.C. § 1746.
1. I am a lawyer engaged in the private practice of law in Greensboro, North Carolina, and have been so employed since 1990. My practice consists almost entirely of federal firearms matters and I have clients, principally licensed firearms dealers, importers, manufacturers and collectors, throughout the United States. I am a member in good standing of the Bars of Kentucky, North Carolina and the District of Columbia, as well as the United States Supreme Court, 11 of the 13 federal Courts of Appeals, and 13 United States District Courts. I am also a member in good standing of the Bars of the United States Tax Court, the United States Court of Federal Claims and the United States Court of Military Appeals.
2. I graduated from the University of Kentucky (B.A.) in 1959, and from the University of Kentucky College of Law (LL.B.) in 1962 where I was Note Editor of the Kentucky Law Journal. I was then selected by Deputy Attorney General Byron White for the Attorney General's Honors Program and remained at the United States Department of Justice until my retirement in December 1989 (except for two years with a federal agency involved in national security). While at the Department I served in the Internal Security Division, the Criminal Division and the Tax Division. I have tried more than 1,000 (probably more than 2,000) federal cases, and supervised the handling of more than 10,000 (probably more than 20,000) federal cases. I have appeared in more than 80 of the 94 federal judicial districts and before five of the federal courts of appeals. At the time of my retirement I was assistant chief of the Western Civil Trial Section of the Tax Division, supervising 35 trial attorneys and 25 support staff with responsibility over all civil tax litigation in most of the western half of the United States. I am the recipient of the Attorney General's John Marshall Award for litigation, as well as two special commendations and two Tax Division Outstanding Attorney Awards.
3. Almost all my cases in private practice involve the Bureau of Alcohol, Tobacco and Firearms ("BATF"). During my government service I also supervised several tax cases involving the firearms statutes administered by BATF. As a special Assistant United States Attorney in the organized Crime Strike Force program during the 1970s I supervised numerous BATF organized crime investigations. For example, I have been the authorizing attorney for more than 60 BATF search warrants and have personally participated in a number of BATF raids in New York, Kentucky, Louisiana and Maryland. I have supervised several BATF/Strike Force undercover operations directed at organized crime figures and conducted numerous grand jury investigations into violations of statutes administered by BATF.
4. Because of the nature of my firearms practice I had known for years that there were serious problems with the National Firearms Registration and Transfer Record ("NFR&TR") maintained by the National Firearms Act ("NFA") Branch of BATF pursuant to the National Firearms Act of 1934, 26 U.S.C. § § 5801-5872. Numerous clients have recounted to me experiences of being inspected by BATF inspectors with totally erroneous printouts from the NFR&TR. Indeed, I know of no inspection of an NFA firearms dealer in which the national office printout was totally correct. I have obtained acquittals and dismissals in three federal prosecutions improperly commenced as the result of errors in the NFR&TR.
5. In 1980, United States District Judge Oliver Gasch stated in a forfeiture case brought by BATF that "the [intervening claimant] offered extensive evidence in the form of reports of officials of [BATF] to demonstrate the incompleteness of the [NFR&TR]." United States v. Seven Miscellaneous Firearms, 503 F.Supp. 565, 576 (D.C. 1980). Moreover, "Considerable evidence was received that the Bureau's officials have for many years recognized the inadequacy and incompleteness of the Bureau's records." Id. at 578. In 1991 the author of an NFA firearms industry guidebook wrote:
The (Gun Control Act of 1968] also provided for an "Amnesty period" wherein an American citizen could, over a period of three months in 1968, register any NFA weapon they had, no questions asked. *** These firearms were registered on Form 4467, of which 54,529 were filed during the amnesty, and another 6000 or so were approved in subsequent years, including "letter" registrations. These were all people who had satisfied the BATF that they had, in fact, registered their firearms during the amnesty,but the filings were lost or misplaced ....
Dan Shea, The Machine Gun Dealers Bible, pp. 4-21 - 4-22 (Lane Publishing; Hot Springs, Ark.; 1st ed. 1991) (emphasis added).
6. In October 1995 I was informed by a reliable source -- a senior career BATF official -- that Thomas Busey, the Chief of BATF's NFA Branch, which is the official custodian of the NFR&TR, had just given a headquarters training presentation (known as "Roll Call Training"), taped on videotape, in which Busey stated that when he had assumed command of the NFA Branch the previous year he had discovered an error rate of as much as 50% in the NFR&TR, but that his underlings routinely testified in court (and by certifications under seal) that the NFR&TR was 100% accurate when they knew that was not the fact. I promptly filed a Freedom of Information demand for the videotape, identifying it with sufficient specificity to warn those involved that destruction or denial were not viable responses. Even so, my source advised that the first reaction at BATF headquarters on receipt of my FOIA demand was the proposal by Gail D. Rossides, Assistant Director for Training under whose jurisdiction Roll Call training is conducted, that the incriminating tape be destroyed. Wiser -- and perhaps more honorable -- heads prevailed and the tape was sent to the Department of Justice for its assessment. Ultimately, some months later, a transcript of the tape was furnished to me, along with an unsolicited self-serving "correction" (declaration) by a Busey underling attempting to take the edge off the rather startling admissions made by Busey. A copy of the Busey transcript has been previously provided to the Court, and is also included in Exhibit 2 to this declaration. I also possess a copy of the actual videotape (which BATF and the Department of Justice have continually tried to keep out of private hands) and will supply it to the Court on request. A recitation of these facts, authored by me but adopted by Congressman David Funderburk of North Carolina, was published in the Congressional Record, a copy of which is attached as Exhibit 1.
7. Shortly after the disclosure of the Busey transcript described above, the Department of Justice sent a mailout to all United States Attorneys advising of the Busey matter and supplying copies of other BATF documents which could be deemed to be exculpatory in NFA firearms prosecutions. I received several of these packages as Brady material in various firearms cases I was handling and am acquainted with other defense lawyers who also received them. Attached as Exhibit 2 is a copy of the Brady package distributed to the United States Attorneys by the Department of Justice.
8. The various enclosures to Exhibit 2 demonstrate that the problem of errors in the NFR&TR has been known to the government for more than 20 years, has been recurring, and has never been fixed. Its existence has also been withheld from the general public, the defense bar and the courts for that same period. Several hundred times in each of those years BATF officials have physically testified under oath in open court or through official certifications under seal (as they did in both ways in this case) that they are the official custodians of the NFR&TR, that they have conducted a diligent search of this official government database, and that they found no record of a particular firearm (or as in this case, of a voided transfer). All of this is literally true, but effectively false. At West Point it would, under the cadet honor code, be called a quibble: a literally true, but intentionally misleading, statement. In court it is a violation of that portion of the witness's oath to tell the "whole truth." It is, in fact, a lie by silence -- by what is not said. And it is an effective lie because no lawyer or judge before the Busey disclosure would have thought to inquire, "But how accurate are your records?" BATF Firearms Specialist Gary Schaible twice violated that portion of his oath before this Court in this case, as did whoever furnished the certifications under seal for the Magistrate Judge and the grand jury.
9. The fundamental flaw in the Schaible "correction" to the Busey statement is the silent deception inherent in BATF's consistent approach to the NFR&TR error problem. No doubt it is true that alternative search techniques will disclose registered firearms already in the registry somewhere, even if a name is misspelled or a serial number is transposed. That is not the issue, and never has been. Where the evil occurs, as it did in this case, is that no search technique will locate a registration which has been removed, destroyed, or through BATF negligence or misconduct never found it way into the registry. No one can hear the dog which does not bark.
10. Proof of the accuracy of the Busey revelations is graphically demonstrated by this case. The evidence is compelling (and uncontradicted) that John LeaSure obtained BATF-approved Forms 3 authorizing the transfer of a number of his registered firearms (those forming the basis of Counts 2, 3, 4 and 6 of the indictment). The evidence is equally compelling (and equally uncontradicted) that when he received the approved Forms 3 he changed his mind -- as he had a perfect legal right to do -- wrote "void" on the transfer forms and, as evidenced by contemporaneous telephone toll records (created at a time when he could have had no conceivable motive to create evidence for a future and unanticipated prosecution), faxed them on his dedicated fax line to NFA Branch's dedicated fax line. There they disappeared into what we now know is the black hole of NFA Branch recordkeeping practices. Ironically, they may have been shredded by the very BATF employees Schaible testified were not disciplined for destroying official registration documents. Months later BATF used the presumption of integrity of official governmental acts and the presumption of correctness of official government records to deceive a United States Magistrate Judge of this Court into finding that there was probable cause to believe that LeaSure was in felonious possession of the very firearms BATF had lost or destroyed the records of. In other words, BATF negligently or intentionally destroyed the records showing that LeaSure was the proper legal custodian of the firearms involved and then used that gap in the official records to bootstrap itself into a criminal investigation and to obtain a fraudulent search warrant. That fraudulently procured warrant resulted in the warrantless plain view seizure of the only evidence supporting the surviving count against Mr. LeaSure. Months later BATF and an ignorantly or intentionally complicit prosecutor used the same fraudulent certifications from the NFA Branch to deceive a grand jury of this Court and secure an indictment of LeaSure. Months later BATF and the same prosecutor used the same fraudulent evidence to secure LeaSure's convict ion by deceiving a member of this Court. All these abuses of this Court's process occurred at a time when BATF had official knowledge (for at least the previous 20 years) of the gaps in its recordkeeping procedures (and when the Department of Justice was on official notice of the Busey revelations). All these results were procured by the official and formal submission of data the BATF authors knew were incomplete, flawed and therefore silently false. These known defects in the government's case were withheld from this Court and from defense counsel until an unrelated action beyond the government's ability to control brought them to light.
11. This kind of BATF conduct is, unfortunately, not unique to this case nor even limited to this particular form of misbehavior. BATF has a documented 30-year history of citizen abuse, civil rights violations, and insult to the judicial system. See, e.g., United States v. Bagley, 473 U.S. 667 (1985) (BATF entered contingent reward agreements with informant witnesses against the defendant which were withheld from the defendant at trial; informants submitted false affidavits regarding their compensation); United States V. Buchanan, 787 F.2d 477 (10th Cir. 1986) (sexual relatilonship between BATF case agent and defendant's former wife); Endicott v. United States, 869 F.2d 452 (9th Cir. 1989) (witness tampering and concealment of Brady material by BATF case agent); United States v. Gonzalez, 719 F.2d 1516 (llth Cir. 1983) (mistrial caused by BATF case agent's misleading failure to produce defendant's arrest record). See also, U.S. Department of Justice, Report to the Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993 (Washington, D.C.; October 8, 1993 (redacted version); U.S. Department of Justice, Office of Professional Responsibility, Department of Justice Report Regarding Internal Investigation of Shootings at Ruby Ridge, Idaho, During Arrest of Randy Weaver (undated; available on LEXIS Counsel Connect). See also, Senate Committee on Appropriations, Oversight Hearings on Bureau of Alcohol, Tobacco and Firearms, 96th Cong., 1st Sess. (GPO; Washington, D.C.; 1979); id., 96th Cong., 2d Sess. (GPO; Washington, D.C.; 1980); U.S. Senate, Committee on the Judiciary, Senate Report No. 97-476, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary, United States Senate, to Accompany S. 1030, together with Supplemental, Additional, and Minority Views, 97th Cong., 2d Sess. (GPO; Washington, D.C.; June 18, 1982); id., Senate Report No. 98-583, Federal Firearms Owners Protection Act: Report together with Additional and Supplemental Views, 98th Cong., 2d Sess. (GPO; Washington, D.C.; August 8, 1984); Colloquy, 131 Cong. Rec. 16984 - 17003 (June 24, 1985); U.S. House of Representatives, Judiciary Committee, House Report No. 99-495, Firearms Owners' Protection Act, 99th Cong., 2d Sess. (GPO; Washington, D.C.; March 14, 1986); Colloquy, 132 Cong. Rec. H1649 - H1803 (daily ed., April 9, 1986); Transcript of Joint Hearing of the Crime Subcommittee of the House Judiciary Committee and the National Security, International Affairs and Criminal Justice Subcommittee of the House Government Reform and Oversight Committee, Review of the Siege of the Branch Davidians' Compound in Waco, Texas, 104th Cong., 2d Sess. (Federal News Service; Washington, D.C.; July 19, 1995 - August 1, 1995); House Committee on the Judiciary and Committee on Government Reform and oversight, Materials Relating to the Investigation into the Activities of Federal Law Enforcement Agencies toward the Branch Davidians, 104th Cong., 2d Sess. (GPO; Washington, D.C.; August 1996); Transcript of Hearing of the Senate Judiciary Committee, Federal Law Enforcement and the Good 0l', Boys Roundup (Federal News Service; Washington, D.C.; July 21, 1995); id., Federal Raid at Waco (Federal News Service; Washington, D.C.; October 31, November 1, 1995); Transcript of Hearing of the Terrorism, Technology, and Government Information Subcommittee of the Senate Judiciary Committee, Federal Raid in Idaho (Ruby Ridge) (Federal News Service; Washington, D.C.; September 6 - September 14, 1995). See also, David T. Hardy, The BATF's War on Civil Liberties: The Assault on Gun Owners (Second Amendment Foundation; Bellevue, Wash.; 1979).
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 11, 1998.
James H. Jeffries. III