Case 3:09-cr-01867-DB Document 216-1

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN THOMAS SHIPLEY, Defendant-Appellant.

* * * * * Case No. EP-09-CR-1867-DB (Fifth Circuit Case No. 10-50856)

ORDER RECONSTRUCTING TRIAL RECORD FOR APRIL 13, 2010 In accordance with the Court of Appeals limited remand of April 26, 2012, this Court enters the following Order reconstructing the trial record in this cause for April 13, 2010.1 In doing so, this Court took judicial notice of the entire appellate record in this case (1Tr. 26-27); secured written submissions from the parties and others; adduced testimony and exhibits at evidentiary hearings held

Citations to the record herein appear in parentheses and reflect the following abbreviations: 1Tr. [upper-right page number(s)] stands for the transcript of the June 11, 2012, record-reconstruction hearing; 2Tr. [upper-right page number(s)] refers to the transcript of the July 20, 2012, record-reconstruction hearing; Exh. denotes an exhibit admitted at the June 11 record-reconstruction hearing; Doc. [number] specifies a document filed with this Court by the defense in connection with the record-reconstruction remand; 1R. [bottom-right page number(s)] concerns Volume 1 of the appellate record in this case; and [volume number] 1stSupp.R. [bottom-right page number(s)] describes a portion of the trial transcript that is part of the appellate record in this case.
1

The procedural history of this case and actions of the parties respecting record reconstruction are accurately summarized in the governments March 21, 2012, Appellees Motion for Expedited Limited Remand (at pp. 2-8, 18-19) and the governments April 18, 2012, Appellees Reply to Appellants Amended Response to Appellees Motion for Expedited Limited Remand (at pp. 3-6), as superseded by the Government Witnesses Declaration (Jun 11 hrg: Govt Exh. 1, p. 2). See also 1Tr. 37-39, 49, 73.

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on June 11, 2012,2 and July 20, 2012,3 immediately after which evidence concerning the recordreconstruction hearing was closed (2Tr. 37-38); relied on documents in this Courts possession relating to jury-instruction requests, objections, and rulings; and drew on this Courts own recollection of what transpired during the trial day in question. Based on the foregoing, and after considering proposed findings submitted by both parties,

Present throughout the June 11 record-reconstruction hearing were both trial prosecutors, Assistant United States Attorneys Gregory E. McDonald (1Tr. 27-28) and Juanita Fielden (1Tr. 74); the governments lead investigative case agent, Special Agent Frank Henderson of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) (1Tr. 87); the Defendant; his appellate counsel, Leon Schydlower (1Tr. 2); and Marjorie Jobe, one of the Defendants two trial lawyers (1Tr. 101). All of the foregoing testified, except for the Defendant and Mr. Schydlower. Robert Perez, lead trial counsel for the Defendant, was present during the June 11, 2012, testimony of Enrique Moreno and most of the direct testimony of AUSA McDonald; thereafter, without having testified, Mr. Perez was excused from the hearing to attend to a personal emergency (1Tr. 2, 69; 2Tr. 9). After Ms. Jobes testimony, the defense requested (1Tr. 122-23) and received (1Tr. 132) an adjournment of the June 11 hearing.
2

Before receiving notice of the missing transcript, and in due course shortly after sentencing in this case, the prosecutors purged and destroyed most of their trial notes, including those pertinent to April 13, 2010 (1Tr. 32-37, 51, 54). One, if not both, of the Defendants former trial attorneys advised the Court on June 11 that they had notes that were contemporaneous or nearly contemporaneous with trial events taking place on April 13, 2010, for which an attorney-client privilege would be asserted. The only notes submitted to the Court at the June 11 hearing were purportedly from the Defendants father, admitted into evidence as Govt Exh. 6 (1Tr. 24-25, 38, 65, 127). No testimony was offered from the Defendants father or anyone else authenticating who made those notes, describing when and how they were created, and/or interpreting the notations thereon. The Court recognizes that the defense has the right to waive an attorney-client privilege, particularly if such waiver would yield evidence at odds with that discussed within this document or indicative of any error occurring on April 13, 2010. Inasmuch as the defense controls such notes (1Tr. 105-08, 123-27) and, to the extent that the defense did not voluntarily tender them to the Court (see Doc. 189), the Court assumes that their content does not materially counter this Courts findings and determinations herein. Present throughout the July 20 record-reconstruction hearing were (a) Mr. Perez, who testified (2Tr. 2-36), and (b) the Defendant, who, on advice of Mr. Schydlower, declined the invitation to testify or to present any witnesses or other evidence on July 20 (2Tr. 37; see 1Tr. 131). Mr. Perez mentioned that he had some notes from the trial (2Tr. 6), but did not provide them to the Court.
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the Court hereby finds, determines, and orders that: 1. Subject areas. The trial proceedings of April 13, 2010, in this case touched on four

subject areas: (1) the remainder of the Defendants testimonydirect, cross-examination, and redirect; (2) the proposed defense character witness Enrique Morenovoir dire examination outside the jurys presence, arguments by counsel, and the Courts exclusionary ruling and reasons therefor; (3) the rebuttal testimony of Agent Hendersondirect and cross-examination; and (4) the jury-charge conferencerequests, objections, and rulings. These categoriessubject areas listed in the

Government Witnesses Declaration4 (Jun 11 hrg: Govt Exh. 1, pp. 1-2), with which the Defendant expressed no disagreement (Jun 11 hrg: Govt Exh. 4, p. 2; Doc. 205, pp. 1-6; see also Jun 11 hrg: Govt Exh. 6, pp. 1-11)comport with this Courts memory. The Court finds thatexcept for quick, routine references to any morning break, the lunch break, the parties resting and closing their evidence, time allotted to the parties for closing arguments, and the trial-day concluding admonishment to the jury (Jun 11 hrg: Govt Exh. 1, pp. 2-3; see also Jun 11 hrg: Govt Exh. 6, pp. 9-11)no other subject areas were addressed during the trial of this cause on April 13, 2010. 2. Time line. Except as hereinafter noted, the Court adopts as accurate the Time Line

contained in the Government Witnesses Declaration as it relates to the trial events of April 13, 2010 (Jun 11 hrg: Govt Exh. 1, pp. 2-3 & Attachment 1; 1R. 136-37; 1Tr. 58-59, 70-71, 109; 2Tr. 13). Except for the morning break, which this Court customarily takes during each trial day, and which

Concerning any of the subject areas addressed at trial on April 13, 2010, the defense submitted no witness-signed detailed narrative akin to the Government Witnesses Declaration (see 1Tr. 68-69, 128-30). A letter regarding Mr. Morenos voir dire testimonyadmitted into evidence as Govt Exh. 4 at the June 11, 2012, record-reconstruction hearingthough detailed, was signed only by Mr. Schydlower, who did not attend the trial. Mr. Morenos June 12, 2012, letter (Doc. 196) was not a detailed narrative of his April 13, 2010, voir dire testimony.
4

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this Court regards as substantively inconsequential to a nonverbatim record reconstruction (see 1Tr. 59-60, 71, 80-81), the Courts recollection is also consistent with the notes purportedly made by the Defendants father relating to the time line (Jun 11 hrg: Govt Exh. 6; see 2Tr. 16). 3. Remainder of Defendants testimony.

Substance of Defendants testimony. As to the Defendants trial testimony on April 13, 2010, except as noted herein, the Court adopts as accurate the Government Witnesses Declaration (Jun 11 hrg: Govt Exh. 1, pp. 3-6) and the June 11, 2012, testimony of its three signatories. Except as noted herein and to the extent that Ms. Jobes June 11, 2012, testimony and Mr. Perezs July 20, 2012, testimony elaborated upon and did not directly conflict with the Government Witnesses Declaration and the June 11, 2012, testimony of the three government witnesses, this Court also credits the testimony of the Defendants two former trial lawyers. Such evidencewhich is also consistent with the detailed notes purportedly made by the Defendants father5 (Jun 11 hrg: Govt Exh. 6, pp. 1-10)comports with the Courts memory of the Defendants trial testimony of April 13, 2010. Mr. Perezs extensive direct examination of the Defendant occupied most of the trial day on April 12, 2010 (9 1stSupp.R. 1264-1402, 1414-76; Jun 11 hrg: Govt Exh. 1, p. 3 & Attachment 2; 1Tr. 72; 2Tr. 14). In contrast, direct examination of the Defendant on April 13, 2010, lasted ten to twenty minutes. Of the topics the Defendant then specifically discussedas noted in Jun 11 hrg: Govt Exh. 1, pp. 2-3; 1Tr. 60-62, 71-72, 81-82; 2Tr. 10, 14; see also Jun 11 hrg: Govt Exh. 6, pp. 1-3--Mr. Perez asked whether the Defendant had committed the crime charged in each indictment

Though not specifically identified as the record source, the notes purportedly made by the Defendants father evidently represent the exclusive basis for the Defendants proposed findings with respect to the Defendants April 13, 2010, trial testimony (Doc. 205, pp. 2-5).
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count, and the Defendant responded in the negative (1Tr. 109-10; 2Tr. 14; Jun 11 hrg: Govt Exh. 6, p. 3). During cross-examination of the Defendant, which lasted one and one-half to two hours, AUSA McDonald confronted the Defendant with the testimony of prior witnesses and exhibits previously admitted into evidence in an effort to expose various statements of and representations by the Defendant as knowing falsehoods.6 The Defendant then discussed topics as specifically noted in Jun 11 hrg: Govt Exh. 1, pp. 3-6; 1Tr. 41-45, 50, 62-68, 70-71, 79-80, 91, 96; 2Tr. 17-18, 20-26; see also Jun 11 hrg: Govt Exh. 6, pp. 3-9. Throughout the cross-examination, the Defendant denied committing any criminal wrongdoing, consistent with his direct testimony on April 13, 2010. The Court also finds that, during his cross-examination, the Defendant: did not admit to making any false statement, misrepresentation, or lie (1Tr. 113-15; 2Tr. 21); testified that some of the proceeds of money from his firearm transactions helped pay for the adoption expenses of his two children (1Tr. 115-16; see also Jun 11 hrg; Govt Exh. 6, p. 9; 9 1st Supp.R. 1338-40); did not testify about how much money Luis Armando Mando Rodriguez made as an employee with the Sheriffs Department (1Tr. 116-17); did not testify that he suspected Rodriguez was a gun trafficker (1Tr. 117, 119; see also Jun 11 hrg: Govt Exh. 6, p. 9; 9 1stSupp.R. 1379, 1387); and, in view of the Defendants logbooks, did not admit there was no paper trail concerning his firearm transactions with Rodriguez (1Tr. 118-19; see also 9 1stSupp.R. 1389, 1425-27, 1432-34).

Wherever the Government Witnesses Declaration refers to one or more false statements, misrepresentations, and/or lies by the Defendant (Jun 11 hrg: Govt Exh. 1, pp. 3-4), the Court understands such terms to be modified by the phrase, in the governments view (see 2Tr. 17-21). Likewise, the Court employs the same phrase, in the governments view, where the Government Witnesses Declaration (at pp. 5-6) states that the Defendant was on cross-examination nonresponsive to various questions posed (see 1Tr. 119; 2Tr. 25).
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During Mr. Perezs less than 20-minute redirect examination, the Defendant testified that he did not understand Agent Henderson to have asked whether the Dealers Firearms Record Book he had handed over to ATF agents, Governments Trial Exhibit 33, was his only and complete set of firearm-transaction records (Jun 11 hrg: Govt Exh. 1, p. 6; 1Tr. 120; 2Tr. 27). The Defendants explanation of that topicalong with many others touched upon during the Defendants April 13, 2010, trial testimonywas covered during the Defendants direct testimony through Mr. Perezs questioning on April 12, 2010 (see Jun 11 hrg: Govt Exh. 6, p. 7; 2Tr. 14, 35-36; 9 1stSupp.R. 142223, 1430, 1434-35). Also on redirect examination, the Defendant related that his firearm collecting revolved around his sniping skills and career plan (1Tr. 121)a subject addressed during the Defendants direct examination the preceding trial day (9 1stSupp.R. 1279-84, 1318-20, 1335, 134344, 1442-43). Objections, motions, requests. To the best of the Courts and the governments recollection (Jun 11 hrg: Govt Exh. 1, p. 3; 1Tr. 61, 82), consistent with notes purportedly made by the Defendants father (Jun 11 hrg: Govt Exh. 6, pp. 1-3, 10), and with no information furnished to the contrary by the defense (see 1Tr. 109-11; 2Tr. 4, 10, 14-15, 27; Doc. 205, pp. 2-3, 5), the government posed no objection during the Defendants direct and redirect examination on April 13, 2010, and the Court so finds. During the Defendants cross-examination, the defense twice objected on the stated basis of badgering or argumentative, as suggested in notes purportedly made by the Defendants father (Jun 11 hrg: Govt Exh. 6, p. 8; Doc. 205, pp. 4-5), to which the Court directed the government to move on (see 1Tr. 66) or words to that effect. Beyond those two objections, which the Court then regarded as inconsequential, and with no evidence to the contrary (see Jun 11 hrg: Govt Exh. 1, pp. 3, 6 & Govt Exh. 6, pp. 1-10; 2Tr. 26; Doc. 205, pp. 2-5), the Court recalls

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and finds that no other objection, motion, or request was made by the government or the defense during the Defendants testimony on April 13, 2010. Employment of trial exhibits. Based on the appellate record prior to reconstruction, the Government Witnesses Declaration and the June 11 record-reconstruction testimony of its three signatories, the notes purportedly made by the Defendants father which identify specific exhibit numbers and firearms, the Courts memory, and the absence of information furnished by the parties to the contrary (see 2Tr. 15-16, 26, 35-36; Doc. 205, pp. 2-5), the Court finds that: (1) on April 13, 2010, only one defense exhibit was offered and admitted into evidence, namely Defendants Trial Exhibit 158, described as E-Mails and other pages (1R. 135; Jun 11 hrg: Govt Exh. 6, p. 2; 2Tr. 15-16); (2) no government exhibits were offered or admitted into evidence on April 13, 2010 (1R. 135; Jun 11 hrg: Govt Exh 6, pp. 3-9; 1Tr. 62); (3) during cross-examination of the Defendant, the government confronted the Defendant with his own testimony on direct examination and that of other witnesses who had testified before the jury, as well as various exhibits that had been admitted into evidence, some of which are mentioned in notes purportedly made by the Defendants father (Jun 11 hrg: Govt Exh. 6, pp. 4-9; 2Tr. 26); and (4) at no time during cross-examination did the government refer to, allude to, present, or offer any exhibit that had not already been admitted into evidence.7 Legal error. No one has alleged or identified for this Court any legal error or irregularity that occurred on April 13, 2010, during the Defendants testimony on direct, cross, and/or redirect

Given the specific topics covered during the Defendants April 13, 2010, trial testimony as this Court has determined herein, aided by an exhibit list (1R. 101-11, 117-20, 124-25, 132, 135) and the transcribed trial proceedings that are part of the appellate record in this case, the government and this Court can identify the particular exhibits and prior testimony alluded to during questioning of the Defendant on April 13, 2010 (1Tr. 63-68, 70, 82).
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examination. The Court recalls and finds that no irregularity or legal error occurred in connection with the Defendants testimony on April 13, 2010. 4. Defenses proposed character witness. In keeping with the Courts vivid recollection

(see 1Tr. 18, 122-23, 130; 2Tr. 2), and consistent with the Courts ruling that was transcribed on April 14, 2010 (1Tr. 4-5; Jun 11 hrg: Govt Exh. 1, Attachment 5, p. 4; 10 1stSupp.R. 1486), the Court: (1) credits as accurate the Government Witnesses Declaration (Jun 11 hrg: Govt Exh. 1, pp. 7-8), except as noted herein; (2) rejects as inaccuratein relation to what actually occurred on April 13, 2010the May 22, 2012, letter from the Defendants appellate counsel (Jun 11 hrg: Govt Exh. 4) ascribing to Ms. Jobe her partial recall of the voir dire testimony of Enrique Moreno8 (1Tr. In particular, this Court finds as inaccurate statements in that exhibit to the effect that Mr. Moreno had testified during his voir dire examination on April 13, 2010, that he: performed a due diligence investigation in asking several individuals about Mr. Shipley and his reputation for truth and veracity in the community; named just some of the people with whom he talked about Mr. Shipleys reputation for truthfulness; explained in detail what he did to inquire in the community specifically about Mr. Shipleys character and reputation; named persons in the community known to Mr. Moreno who also knew the Defendant; had reason to know about Mr. Shipleys reputation for truth and veracity in the community both before and after Mr. Shipley testified in the civil trial as a key plaintiffs witness; and stated firmly that Mr. Shipleys reputation in the community for truth, veracity and credibility was above reproach and very strong [a]fter establishing why and how he knew about Mr. Shipleys reputation in the El Paso community for truth and veracity. Mr. Moreno confirmed neither that he was consulted about these statements prior to their inclusion in the May 22, 2012, letter (see 1Tr. 12-13, 15-17) nor that he made those statements during his April 13, 2010, voir dire testimony (see 1Tr. 10-11, 1517, 19). Individually and collectively, these statements do not comport with the Courts clear independent recollection of Mr. Morenos voir dire testimony, and they are inconsistent and incompatible with the Courts stated reasons for excluding Mr. Morenos character evidence on April 14, 2010 (Jun 11 hrg: Govt Exh. 1, Attachment 5, p. 4; 10 1stSupp.R. 1486).
8

On July 11, 2012, along with its proposed findings, the defense submitted to the Court notes purportedly from Ms. Jobe that concern questions meant for Mr. Moreno, but provide no responses (Doc. 205-1, pp. 1-2). No testimony was offered from Ms. Jobe or anyone else authenticating the author of the notes, explaining when or how they were created, interpreting any notations thereon, and identifying which of the questions there listed were asked of Mr. Moreno on April 13, 2010. In view of the Courts clear memory of Mr. Morenos voir dire testimony, the Court accords no weight to these notes. 8

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57); and (3) observes thatas reflected by the June 11, 2012, testimony of Mr. Moreno and AUSA McDonald, and as indicated in Mr. Morenos letter to the Court dated June 12, 2012 (Doc. 196)except for certain portions of Mr. Morenos cross-examination by the government, Mr. Moreno did not well recall his voir dire testimony9 (1Tr. 9-12, 14-17, 20; Doc. 196). Based in substantial part on the Courts own recollection, the Court determines that Mr. Moreno: (1) expressed his personal opinion concerning the Defendants truth and veracity,10 but did not express an awareness or opinion concerning the Defendants general reputation in the community for honesty (1Tr. 18-19, 122-23; 2Tr. 2); (2) based his personal opinion on a solitary-asserted example of the Defendants honesty arising from a civil lawsuit in which he represented the plaintiff, Samantha Carrington (the Carrington case) (1Tr. 9, 11, 20-22); and (3) did not state that his personal opinion was based on a period of years or any lengthy acquaintance with the Defendant. Accordingly, the Court found on April 13, 2010, that a proper foundation for the admissibility of character evidence had not been laid through Mr. Morenos voir dire testimony. The Court invited the defense to call any other character witness it had, but it declined to do so (Jun 11 hrg: Govt Exh. 1, pp. 2, 8; see 10 1stSupp.R. 1486). Even if the defense had laid a proper predicate for admissibility of character evidence through Mr. Moreno, the Court recalls that Mr. Morenos personal opinion concerning the Defendants honesty with respect to the Carrington case was not shared by others (see 1Tr. 15, 20) that included one or more law-enforcement officers. The Court viewed cross-examination of Mr. Moreno as a

Mr. Perez offered no specifics concerning Mr. Morenos voir dire testimony (2Tr. 28).

On April 12, 2010, Mr. Perez argued that Mr. Moreno was entitled to give a basis for an opinion as to whether or not he believes that Mr. Shipley is truthful or not truthful (Jun 11 hrg: Govt Exh. 1, Attachment 4; 9 1stSupp.R. 1413 (emphasis added)). The Court responded: [I]ts supposed to be reputation in the community, Mr. Perez. More than likely he will not be able to testify as to that (id.).
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problematic complicating factor (Jun 11 hrg: Govt Exh. 1, Attachment 5, p. 4; 10 1stSupp.R. 1486) because it would likely have led to an inquiry into events surrounding the Carrington case that were contested and irrelevant to the instant case. In a prior trial ruling in the instant case, this Court prohibited an inquiry into details surrounding the Carrington case.11 Therefore, even if Mr. Morenos voir dire testimony had been admissible as character evidence, the Court regarded such testimony as excludable under FED. R. EVID 403 because its probative value was substantially outweighed by a danger of confusing the issues, misleading the jury, undue delay, and wasting time. 5. Agent Hendersons rebuttal testimony. Consistent with the Courts memory, as

reflected in substantial part by notes purportedly made by the Defendants father (Jun 11 hrg: Govt Exh. 6, pp. 10-11), and in the absence of evidence offered to the contrary through recordreconstruction testimony or the defenses proposed record-reconstruction findings (see 2Tr. 28-29; Doc. 205, p. 6), the Court adopts as accurate the Government Witnesses Declaration (Jun 11 hrg: Govt Exh. 1, pp. 8-9) and the June 11 record-reconstruction testimony of government witnesses concerning the substance of Agent Hendersons brief trial testimony on April 13, 2010 (1Tr. 49-50, 79-80, 87-88, 92, 96). Agent Hendersons April 13, 2010, trial testimony lasted 10 minutes or less and focused on what the Defendant had told Agent Henderson in connection with Government Trial Exhibit 33. When testifying on April 12, 2010, the Defendant denied that he had ever told Agent

On April 9, 2010, when questioned by Mr. Perez, defense witness Brad Johnson testified that he knew the Defendant was not motivated by money in his buying and selling of guns [b]ecause if he were motivated by money, then he would have accepted the deal that Samantha Carrington had offered him (8 1stSupp.R. 1020-21). Immediately thereafter, the Court sustained the governments one-word objection, instructed the jury to disregard Johnsons comment, and warned: . . .you know better than that. Ill find you in contempt (8 1stSupp.R. 1021). On April 12, 2010, government counsel objected to Mr. Morenos testimony to the extent it would involve inquiry into the Carrington case (Jun 11 hrg: Govt Exh. 1, Attachment 4, p. 2; 9 1stSupp.R. 1413).
11

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Henderson that Government Trial Exhibit 33 was the Defendants only and complete set of firearmtransaction records (9 1stSupp.R. 1422-23, 1425, 1434-35). As with Agent Hendersons trial testimony on April 7, 2010 (6 1stSupp.R. 709-10, 713-15, 723) and on April 8, 2010 (7 1stSupp.R. 848, 882), Agent Hendersons April 13, 2010, rebuttal testimony asserted that the Defendant had told him that Government Trial Exhibit 33 was the Defendants only and complete set of firearmtransaction records (1Tr. 91, 96-98). No one has identified for this Court any objection, motion, request, irregularity, or legal error that occurred during Agent Hendersons April 13, 2010, trial testimony (see Jun 11 hrg: Govt Exh. 1, pp. 8-9 & Govt Exh. 6, pp. 10-11; 2Tr. 29; Doc. 205, p. 6), nor does the Court recall any and, therefore, finds that none occurred. 6. Jury-charge conference. In reconstructing the April 13, 2010, jury-charge

conference that lasted less than ten minutes, the Court is aided by: (1) the unfiled instruction requests by the parties with law-clerk notes, and a prior draft of the jury charge that bears highlighting and law-clerk notes (Jun 11 hrg: Courts Exh. 1, pp. 1-5112; 1Tr. 2-3, 125-26); (2) the transcribed jury-charge conference of April 12, 2010 (Jun 11 hrg: Govt Exh. 1, Attachment 6; 9 1st Supp.R. 1404-12)13; (3) the brief transcribed jury-charge conference of April 14, 2010 (Jun 11 hrg:

Toward the conclusion of the June 11 record-reconstruction hearing, the Court repeatedly asked the defense for any information relating to jury-instruction objections and requests beyond what was reflected in the Courts Exh. 1 of that date and the charge ultimately read to the jury (1Tr. 123-27, 129). The defenses proposed findings (Doc. 205, p. 6), as well as defense witnesses (see 2Tr. 11-12), offered no such particulars and did not attempt to utilize pertinent exhibits admitted into evidence at the June 11 record-reconstruction hearing.
12

On April 12, 2010, Mr. Perez abandoned his requested instruction on impeachment by evidence of Mark Benedicts untruthful character and conceded that no one had offered testimony about Benedicts reputation in the community for truth-telling. According to Mr. Perez, witness Rodriguez testified as to his personal opinion of Benedicts untruthfulness, and no other witnesses testified on the subject (Jun 11 hrg: Govt Exh. 1, Attachment 6, pp. 5-6 & Courts Exh. 1, pp. 2, 41; 9 1stSupp.R. 1407-08). The Note to the defense-abandoned instruction (Jun 11 hrg: Courts Exh. 1, p. 2) advised that the trial courts refusal to give it to the
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Govt Exh. 1, Attachment 7; 10 1stSupp.R. 1480); (4) the written instructions that were read to the jury verbatim (Jun 11 hrg: Govt Exh. 1, Attachment 8; 1R. 140-63; 10 1stSupp.R. 1487); and (5) the Government Witnesses Declaration (Jun 11 hrg: Govt Exh. 1, pp. 9-10). From these sources, as well as the Courts recollection, and in the absence of any information having been offered to the contrary (see Jun 11 hrg: Govt Exh. 6, pp. 10-11; 2Tr. 5-6, 29-31, 33-35; Doc. 205, p. 6), the Court finds that: (a) The defense submitted a written request for the Fifth Circuits pattern jury instruction on character evidence (Jun 11 hrg: Courts Exh. 1, pp. 1, 42-43). See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS/CRIMINAL, No. 1.09 at 19 (West 2001). The Court declined this request because the jury did not hear evidence of the Defendants reputation in the community for honesty. The first line of the requested instruction stated that it applied only when the jury had heard character evidence, which was not the case here. The Note to the requested instruction, citing United States v. Baytank, 934 F.2d 599, 614 (5th Cir. 1991), also observed that refusal to provide such an instruction is generally not error (Jun 11 hrg: Courts Exh. 1, p. 2). (b) The Court did not provide a defense-requested instruction on transcript of tape recorded jury does not present a ground for reversal, when, as in this case (Jun 11 hrg: Govt Exh. 1, Attachment 8, pp. 7-9; 1R. 146-48), the jury received a general credibility instruction. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS/CRIMINAL, No. 1.13 at 23 (West 2001). Also on April 12, 2010, the defense agreed to the following instructions, which the Court ultimately read to the jury: (1) a modified version of the Fifth Circuit pattern jury instruction (No. 1.14 at 24) concerning accomplice-informer-immunity (Jun 11 hrg: Govt Exh. 1, Attachment 6, pp. 4-5, Attachment 8, pp. 8-9 & Courts Exh. 1, pp. 3-4, 40; 9 1stSupp.R. 140607; 1R. 147-48); (2) a pattern instruction on impeachment by prior conviction (Jun 11: Govt Exh. 1, Attachment 6, pp. 7-9, Attachment 8, p. 10; 9 1stSupp.R. 1409-11; 1R. 149); (3) boilerplate definitions of knowingly and willfully (Jun 11 hrg: Govt Exh. 1, Attachment 8, p. 23 & Courts Exh. 1, pp. 4-5; 1R. 162); and (4) a pattern instruction on summaries and charts received in evidence (Jun 11 hrg: Govt Exh. 1, Attachment 8, p. 5 & Courts Exh. 1, p. 7; 1R. 144). 12

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conversation, modeled after Fifth Circuit pattern instruction No. 1.42 at 67 (Jun 11 hrg: Courts Exh. 1, p. 6). (c) As to Count 1 of the indictment, the charge of dealing in firearms without a license, the Court: (1) provided the jury with the defenses requested instruction (Jun 11 hrg: Courts Exh. 1, pp. 7-8 & Govt Exh. 1, Attachment 8, pp. 19-20; 1R. 158-59); (2) supplied a paragraph describing a non-exhaustive list of factors for the jury to consider, based on a case cited by the defense, United States v. Palmieri, 21 F.3d 1265 (3d Cir. 1994) (Jun 11 hrg: Courts Exh. 1, pp. 9, 17-18, 23, 31 & Govt Exh. 1, Attachment 8, p. 2014; 9 1stSupp.R. 1411; 1R. 159); and (3) sustained the defenses objection to certain language requested by the government (Jun 11 hrg: Courts Exh. 1, pp. 22, 2627, 29, 4615; 9 1stSupp.R. 1411). (d) As to Counts 2 through 5 of the indictment, relating to false statements made in connection with firearm transactions, the Court: (1) provided the jury with the substance of instructions requested by the defense, with one exception hereinafter noted (Jun 11 hrg: Courts Exh. 1, pp. 9-10, 46-47 & Govt Exh. 1, Attachment 8, pp. 20-21; 1R. 159-60); and (2) sustained the governments objection to language pertaining to likely to deceive (Jun 11 hrg: Courts Exh. 1,

The paragraph read: In determining whether one is engaged in the business of dealing in firearms, you may examine the intent of the Defendant and all circumstances surrounding the acts alleged to constitute engaging in business. This inquiry is not limited to the number of weapons sold or the timing of the sales. For example, the location of the sales; the time and conditions under which the sales occur; the Defendants behavior before, during, and after the sales; the price charged for and characteristics of the firearms sold; and the Defendants intent are all potentially relevant indicators of whether one has engaged in the business of dealing or whether the transactions constitute hobby-related sales.
14

The excluded verbiage was: The government need not prove that the Defendants primary business was dealing in firearms or that he necessarily made a profit from it. The government must show a willingness to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.
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pp. 10, 4716 & Govt Exh. 1, Attachment 6, pp. 9-10; 9 1stSupp.R. 1411-12). (e) As to Count 6 of the indictment, concerning a false statement to a federal agent, the Court: (1) adopted the Defendants requests that conformed with the Fifth Circuit pattern jury instruction (No. 2.49 at 165) (Jun 11 hrg: Courts Exh. 1, pp. 11-13, 47-49 & Govt Exh. 1, Attachment 6, p. 10, Attachment 8, pp. 21-22; 9 1stSupp.R. 1412; 1R. 160-61); and (2) sustained the governments objection to language requested by the defense that did not appear in the Fifth Circuit pattern jury instruction (Jun 11 hrg: Courts Exh. 1, pp. 12, 4817 & Govt Exh. 1, Attachment 6, p. 10; 9 1stSupp.R. 1412). (f) Other than as noted in 6(a)-(e) above, neither party requested a jury instruction or raised an objection to the jury charge at the April 13, 2010, charge conference. The Courts instructions to the jury, read on April 14, 2010 (Jun 11 hrg: Govt Exh. 1, Attachment 8; 1R. 140-63; 10 1st Supp.R. 1487), reflected no more or less than what was addressed in all of the jury-charge conferences that took place during the trial of this cause, including the jury-charge conference of April 13, 2010, as discussed herein. 7. Sufficiency of record reconstruction. Various persons, including the Court, have

professed a clear recollection of what occurred during the trial of this case on April 13, 2010. Except

The excluded verbiage was: A false statement is likely to deceive if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been actually deceived or misled.
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The following language was excluded: Deciding whether a false statement is material requires the determination of at least two subsidiary questions of purely historical fact: (a) what statement was made? and (b) what decision was the agency trying to make? The ultimate question (c) whether the statement was material to the decision, requires applying the legal standard of materiality to the historical facts. . . . .A violation of [Title 18, United States Code, Section] 1001 requires proof that the Defendant had the specific intent to make a false or fraudulent statement. The misrepresentation must have been made deliberately, knowingly, and wilfully.
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with respect to the exclusion of Mr. Moreno as a character witness, which has been fully addressed herein, no one has asserted that any legal error was committed during the trial proceedings of April 13, 2010. On the basis of all the sources consulted as described herein, this Court finds that the record, as now reconstructed, discloses a fair and accurate account of the trial proceedings of April 13, 2010, constitutes a substantially verbatim account of those proceedings, leaves no omission that is either substantial or significant, and permits effective appellate review. 8. Certification and submission of reconstructed record. The Court hereby certifies

and submits to the United States Court of Appeals for the Fifth Circuit the reconstructed record for April 13, 2010, consisting of this Order and all evidence discussed herein. SO ORDERED this day of September 2012.

THE HONORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE

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