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Case 2:10-cr-01047-ROS

JOHN S. LEONARDO United States Attorney District of Arizona

JAMES P. VANN

Special Assistant U.S. Attorney KATHY J. LEMKE Assistant U.S. Attorney

Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 018468 Telephone (602) 514-7500

Document 460

Filed 11/28/12

Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America

Plaintiff,

v.

2.

Randolph Benjamin Rodman, and

6.

Idan C. Greenberg,

Defendants.

CR-10-01047-PHX-ROS

MOTION IN LIMINE TO PRECLUDE

The United States, by and through undersigned counsel, moves in limine to preclude

Randolph Benjamin Rodman and Idan C. Greenberg, the defendants, from using or referring to

the ATF’s National Firearms Act Branch Standard Operating Procedures Training Manual because they do not confer any rights on the defendant and lack any relevance to the trial. Mr. Ernest Lintner testified in trial on November 28, 2012, that the defendant’s exhibit #402–ATF’s NFA Branch Standard Operating Procedures Training Manual–was completed in mid-2008. The last approved transfers of firearms in this case was February, 2008. Therefore, this manual was not implemented at the time of the Defendant’s transferred their firearms. Defendant’s cross examination or presentation of this material will cause jury confusion and has no basis in law.

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Case 2:10-cr-01047-ROS

Document 460

Filed 11/28/12

Page 2 of 3

These procedures are internal ATF documents regarding policies and procedures. These policies

are not contained in ATF regulations. These policies have never been publicly announced and have not

been published in the Federal register or been disseminated to the public for public comment.

ATF’s confidential, internal policies, practices and similar materials do not confer any privilege

or right on the defendant. See United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998) (evidence obtained

in violation of customs regulations not subject to suppression) citing U.S. v. Caceres, 440 U.S. 741, 744,

755 (1979) (tape recorded evidence obtained in violation of IRS regulations not subject to suppression);

see also U. S. v. Benevento, 836 F.2d 60, 70 (2d Cir. 1987), cert. denied, 486 U.S. 1043 (1988) (evidence

obtained in violation of customs regulations not subject to suppression). Moreover, internal policy

manuals of Federal agencies do not generally create substantive rights in others. See Schweiker v.

Hansen, 450 U.S. 785, 789 (1981) (per curiam) (failure to follow 13 volume internal agency manual did

not provide a basis of estoppel against the government); Coleman v. Perrill, 845 F.2d 876, 879 (9th Cir.

1988) (internal U.S. Parole Commission manual provision was not a requirement, but merely an

“aspiration”); U. S. v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982) (provision in

internal U.S. Customs manual did not have the force of law and could not be asserted against the

government). Duckworth v. U.S. ex rel Locke, 705 F. Supp 2d 30, 49 (D. DC. 2010) (rejecting claim that

departure from internal penalty guidelines constituted a violation of law); Vargas v. U. S. Parole

Comm’n, 865 F.2d 191, 195 (9 Cir. 1988)(rejecting claim that violation of internal rules constituted

basis for legal challenge noting Defendant “claims the Parole Commission violated its Rules and

Procedures Manual. Even if this were so, we have no jurisdiction to review departures from internal

rules which are ‘merely statements of policy, organization, procedure or practice.” ); Local 2855 AFGE

(AFL-CIO) v. U.S., 602 F.2d 574, 582 n 28 (3d Cir. 1979) (rejecting claims that various internal

operating procedures used by the Army had the effect of law since these procedures were not official

regulations promulgated under the APA and therefore do not prescribe any binding rule of law on the

agency and cannot be used as the basis for an attack upon the Army's decision).

For the Defendant to attempt to use the Policies and Procedures of ATF to demonstrate that the

rights of the defendant were violated, the defendant must show that the policy in question had the force

and effect of law, i.e., that the policy “(1) prescribe[d] substantive rules- not interpretive rules, general

th

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Case 2:10-cr-01047-ROS

Document 460

Filed 11/28/12

Page 3 of 3

statements of policy or rules of agency organization, procedure or practice-and, (2) conform[ed] to

certain procedural requirements.” Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), cert. denied, 459

U.S. 907 (1982); U.S v. One 1985 Mercedes, 917 F.2d 415, 423 (9th Cir.1990). As the court explained

in Rank, the second requirement means that the agency policy must have been promulgated “pursuant

to a specific statutory grant of authority,” so that a policy that was “neither published in the Federal

Register nor disseminated to the public for scrutiny and comment” will not have the force and effect of

law. Rank v. Nimmo, 677 F.2d 692, 698 (9 Cir. 1982), cert. denied, 459 U.S. 907 (1982). "An agency

policy that can only be unearthed by discovery of the agency's internal workings cannot be a policy that

was disseminated to the public." One 1985 Mercedes, 917 F.2d at 423.

As no rights or privileges are conferred on the defendant by ATF’s internal procedures, they are

totally irrelevant to the trial and allowing the defendant to use these in the trial will only serve to confuse

the jury.

CONCLUSION

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As the internal procedures of ATF do not confer any rights on the defendant and were not enacted at the time of the defendants’ transfers, they are irrelevant to the trial and the government’s Motion in Limine should be granted.

Respectfully submitted this 28th day of November, 2012.

JOHN S. LEONARDO United States Attorney District of Arizona

s/ James P. Vann JAMES P. VANN Special Assistant United States Attorney

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