Oklahoma Criminal Defense Blog

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (A.T.F.) has always had to fight to distinguish itself from the F.B.I.   Specialized in enforcing only the matters in its title, it made headlines in the 1970s for its big drug busts.  Its history is said to derive from Alexander Hamilton’s Treasury operations during the Whiskey Rebellion, and claims to include the famous Eliot Ness, fighter of bootleggers, moonshiner, cigarette smugglers, and Chicago mobsters.

Housed in the Justice Department, the bureau has a budget of about $1billion and fields 2,500 agents.  From the time of its creation, there has been debate if it deserved to be a free-standing agency.

Now some in Washington say it is time to merge the A.T.F. into the F.B.I.  The latest problem is a scandal over Operation Fast and Furious.  Some agents who were investigating a gun-running operation across the Mexican border deliberately allowed some weapons to go through.  The explanation given was that they wanted to stand back and follow the evidence trail higher up the purchasing tree.  The problem is that  hundreds of guns disappeared into Mexico, and two of the guns were found at the scene of a shootout where American Border Patrol agent Brian Terry was killed.  Some agents who thought the agency did the wrong thing in allowing the guns to go through told Congress about.

President Obama has promised to take “appropriate action” when the investigation is complete.   The head of the agency, Kenneth Melson, may lose his job.  Noteworthily, Melson is only the acting head of the agency.   The A.T.F. has not had a director since the last time the bureau had a scandal.   And that was when the Senate demanded the power to confirm the agency director.  Carl Truscott was the last permanent director of the agency in 2006.  When he was investigated for his spending habits, the Senate demanded confirmation power at the urging from the National Rifle Association, who has no love for the A.T.F.

Some blame the National Rifle Association for the problems at the A.T.F., saying the Association has weakened the agency.  The Association denies it, but it clearly has every possible motive to weaken the agency, as it views the A.T.F. as existing to threaten gun owners’ rights.     When the Senate obtained the power to confirm the agency director, some predicted no one would ever be confirmed again.  And no one has.  President George W. Bush’s nominee, Michael Sullivan, never won Senate confirmation and ran the agency as acting director.  Since President Obama last November nominated Andrew Traver, who is opposed by the National Rifle Association, the Senate Judiciary Committee has yet to hold a hearing on his appointment.

Guns now draw the headlines for the bureau, as they do for Oklahoma criminal defense attorneys in federal court. but the alcohol and tobacco have made their name in other states.  The bureau still conducts investigations of illegal tobacco sales by or with Indian tribes in Oklahoma as well.

It is legal to own a machine gun in this country, but the A.T.F. may conduct surprise visits to ensure the whereabouts of every weapon and ammunition.  The Firearms Owners Protection Act of 1986 prohibited the A.T.F. from conducting more than one unannounced inspection of a gun dealer.  The Act also made it harder to revoke the license of dealers whom the agency accuses of breaking the law.

Advocates of the bureau like the way it goes after gun running in Mexico and monitors gun transactions in this country.  Gun dealers who sell in bulk like 50 or 100 guns in one transaction draw especial attention.    Some even want to strengthen the bureau, among other reasons because they say 70% of the guns recovered from the drugs wars in  Mexico originated from the United States.  But Congress has refused to allow the agency to assemble a centralized computer database of gun transactions.  The utility of such a tool is obvious for tracking.

Critics of the bureau fear it will get too much control over the gun rights of citizens.  To them, a centralized data base is anathema.  They view locating all the gun owners in the country as only the first step toward confiscating those guns, maybe not now, but later on down the road.

Reporting multiple sales of handguns was already required of dealers in all 50 states.  A new regulation issued by the Justice Department requires dealers to report anyone buying two or more semi-automatic rifles within 5 days.   The regulation applies only to sales in states that border Mexico: Texas, New Mexico, Arizona and California.  It is designed to catch sales to straw buyers, buyers who purchase weapons for the Mexican drug cartels.  The rule also provides that a report will be destroyed after two years if it produces no criminal cases.  Not surprisingly, the National Rifle Association claims the new regulation is unconstitutional, as an infringement upon the Second Amendment right to bear arms, and is threatening to challenge it in court.

So many federal agents were moved to counter-terrorism investigations after the 9/11 attacks that the prosecution of more traditional crimes could not be given much attention.  Carter Stewart, newly-appointed United States Attorney for the Southern District of Ohio is going to change that.

Stewart’s district includes Cincinnati, Columbus, Dayton and all of southern Ohio.  “I would like to have more resources go back to our bread-and-butter cases,” Stewart said.  By “bread-and-butter,” Stewart referred to his priorities: financial crime, mortgage fraud, public corruption, environmental crime and the exploitation of children.  Criminal defense lawyers know those are traditional areas of federal prosecution because local law enforcement usually do not have the expertise or resources to pursue crimes in those areas.

Financial crimes and mortgage frauds obviously require experts in tracking down long, often sophisticated paper trials, sometimes in dealings local law enforcement personnel have never heard of.  Public Corruption focuses on the wrong-doing of state and local politicians, so state and local prosecutors have an obvious conflict, assuming they even want to pursue the wrong-doers in any given case.  Environmental crimes require specific expertises and can cross state lines.  Exploitation of children, most commonly prostitution of children, often requires investigations across state lines as the prostitutes are moved to locations like truck stops in various cities.

In Oklahoma, federal prosecutors have continued to prosecute the crimes they traditionally pursued, in addition to national security/counter-terrorism: more commonly those in the areas of drug distribution conspiracies, violent crimes, public corruption, and white collar crimes, child computer crimes, and gun possession charges on previously-convicted felons.

The headquarters of the F.B.I. for years after 9/11 decreed that counter-terrorism shall dominate all resources.   What was surprising was how much withdrawal there was from other areas of investigation in some districts.  In those years after 9/11, Ohio had several cases of alleged terrorism since 2001, including the case involving three men from Toledo convicted last year of plotting to recruit and train terrorists.  Authorities also prosecuted three loosely-linked terrorists over four years, including Iyman Faris, also known as Mohammad Rauf and sometime F.B.I. double agent, was convicted of helping in a plot to destroy the Brooklyn Bridge at the request of Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks.

Carter Stewart is following the lead of U.S. Attorney General Eric Holder, who has instructed new U.S. Attorneys to return to basic areas of prosecution.  Stewart’s top priority is still counter-terrorism but he has not decided on this next most important emphasis. But he is taking a close look at financial crimes.  “With today’s economy and the issues that we’re facing, I think that’s a direct result from fraudulent activity,” he said.