Case 2:10-cr-01047-ROS Document 460 Filed 11/28/12 Page 1 of 3

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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 email: kathy.lemke@usdoj.gov

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America v. 2. 6. Plaintiff, CR-10-01047-PHX-ROS MOTION IN LIMINE TO PRECLUDE

Randolph Benjamin Rodman, and Idan C. Greenberg, Defendants.

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 ATFs National Firearms Act Branch Standard Operating Procedures Training Manual because they

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do not confer any rights on the defendant and lack any relevance to the trial. Mr. Ernest Lintner testified

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in trial on November 28, 2012, that the defendants exhibit #402ATFs NFA Branch Standard

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Operating Procedures Training Manualwas completed in mid-2008. The last approved transfers of

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firearms in this case was February, 2008. Therefore, this manual was not implemented at the time of

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the Defendants transferred their firearms. Defendants cross examination or presentation of this

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material will cause jury confusion and has no basis in law.

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

2 are not contained in ATF regulations. These policies have never been publicly announced and have not 3 been published in the Federal register or been disseminated to the public for public comment. 4
ATFs confidential, internal policies, practices and similar materials do not confer any privilege

5 or right on the defendant. See United States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998) (evidence obtained 6 in violation of customs regulations not subject to suppression) citing U.S. v. Caceres, 440 U.S. 741, 744, 7 755 (1979) (tape recorded evidence obtained in violation of IRS regulations not subject to suppression); 8 see also U. S. v. Benevento, 836 F.2d 60, 70 (2d Cir. 1987), cert. denied, 486 U.S. 1043 (1988) (evidence 9 obtained in violation of customs regulations not subject to suppression). Moreover, internal policy 10 manuals of Federal agencies do not generally create substantive rights in others. See Schweiker v. 11 Hansen, 450 U.S. 785, 789 (1981) (per curiam) (failure to follow 13 volume internal agency manual did 12 not provide a basis of estoppel against the government); Coleman v. Perrill, 845 F.2d 876, 879 (9th Cir. 13 1988) (internal U.S. Parole Commission manual provision was not a requirement, but merely an 14 aspiration); U. S. v. Fifty-Three Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982) (provision in 15 internal U.S. Customs manual did not have the force of law and could not be asserted against the 16 government). Duckworth v. U.S. ex rel Locke, 705 F. Supp 2d 30, 49 (D. DC. 2010) (rejecting claim that 17 departure from internal penalty guidelines constituted a violation of law); Vargas v. U. S. Parole 18 Commn, 865 F.2d 191, 195 (9th Cir. 1988)(rejecting claim that violation of internal rules constituted 19 basis for legal challenge noting Defendant claims the Parole Commission violated its Rules and 20 Procedures Manual. Even if this were so, we have no jurisdiction to review departures from internal 21 rules which are merely statements of policy, organization, procedure or practice. ); Local 2855 AFGE 22 (AFL-CIO) v. U.S., 602 F.2d 574, 582 n 28 (3d Cir. 1979) (rejecting claims that various internal 23 operating procedures used by the Army had the effect of law since these procedures were not official 24 regulations promulgated under the APA and therefore do not prescribe any binding rule of law on the 25 agency and cannot be used as the basis for an attack upon the Army's decision). 26
For the Defendant to attempt to use the Policies and Procedures of ATF to demonstrate that the

27 rights of the defendant were violated, the defendant must show that the policy in question had the force 28 and effect of law, i.e., that the policy (1) prescribe[d] substantive rules- not interpretive rules, general

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1 statements of policy or rules of agency organization, procedure or practice-and, (2) conform[ed] to 2 certain procedural requirements. Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), cert. denied, 459 3 U.S. 907 (1982); U.S v. One 1985 Mercedes, 917 F.2d 415, 423 (9th Cir.1990). As the court explained 4 in Rank, the second requirement means that the agency policy must have been promulgated pursuant 5 to a specific statutory grant of authority, so that a policy that was neither published in the Federal 6 Register nor disseminated to the public for scrutiny and comment will not have the force and effect of 7 law. Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), cert. denied, 459 U.S. 907 (1982). "An agency 8 policy that can only be unearthed by discovery of the agency's internal workings cannot be a policy that 9 was disseminated to the public." One 1985 Mercedes, 917 F.2d at 423. 10
As no rights or privileges are conferred on the defendant by ATFs internal procedures, they are

11 totally irrelevant to the trial and allowing the defendant to use these in the trial will only serve to confuse 12 the jury. 13 14
As the internal procedures of ATF do not confer any rights on the defendant and were CONCLUSION

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not enacted at the time of the defendants transfers, they are irrelevant to the trial and the governments

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Motion in Limine should be granted.

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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