Fast and Spurious and a Prosecution by Federal Co-Conspirators

Once upon a time I made a lot of money doing nothing more than graphic timelines of events and people all engaged in a single endeavor, just to see who did what, and in what order, and asking why. It’s a terrific analytical tool.

From the moment Fast and Furious went public in Dec 2010, after the murder of Border Patrol Agent Brian Terry, the story became so political, with so much dancing and sidestepping by administration officials inside ATF and the Department of Justice, no wonder a whole category of crimes involved have been overlooked.

In fact, all the serious ones.

As I have often argued, facts don’t lie, and the politics often resolves itself if you simply lay out in simple terms the crimes, who planned them, who carried them out, and who, for whatever reason, collegial loyalty or mutual dirty fingerprints, tried to cover them up.

We all know something of Fast and Furious. It was an ATF plan to allow guns purchased from gun stores along Mexican border states to “walk” into Mexico, where they could lead American and Mexican federal officials to drug cartels buying the guns. (Only I’m not sure if Mexico was dialed into this plan.)

These purchases occurred in 2009-2010, approx 2000 guns (semi-automatic assault-looking rifles and pistols), approx $1M, or average, $500 per weapon. Not a $32 Saturday night special in the lot. The ATF lost track of 1400 of them, 70%, costing them their ISO-9000 certification.

We know that a couple of ATF agents in Phoenix began to complain about the operation because they were not allowed to make arrests as per standard ATF procedures, before the guns got into the hands of criminal end-users. (The actual details as to how guns were to be traced, and arrests made, once they got into criminal hands, is a mystery to me. But with 70% untraceable, it must have been pretty shoddy. But I’m getting ahead of myself.)

But intentional, accidental, or incompetence, in the end it shouldn’t matter.

In Dec, 2010, Agent, Brian Terry, was likely shot and killed by one of two of these 1000 weapons along a smuggling trail in southern Arizona. (I used to try cases near there, in Bisbee.) Strangely, the killers left the two F&F guns laying on the ground at the crime scene, then fled. One man is being held for the shooting, but there is no conclusive proof either of the F&F guns fired the fatal round (according to the FBI, a wholly-owned subsidiary of the Department of Justice.).

Again, it shouldn’t matter.

When this killing occurred, news of the Fast and Furious plan quickly went public. They couldn’t keep a lid on it.  Within 30 days the Federal District Attorney for Arizona, Dennis Burke, ended the Fast and Furious operation by filing a sealed multi-count indictment against the people who were used as straw buyers in the Phoenix area on behalf of drug cartel members, way back at the front end of the operation. There were 20 named people, and I link to that indictment for informational purposes. Read it for all it doesn’t mention, and crimes it doesn’t list. All but one were charged with the principal charges of 1) Conspiracy and 2) Dealing in Firearms without a License, citing 90 separate incidences in 2009 and 2010.

The first named buyer, Avila, though not the biggest buyer, was the man who bought the two rifles found at the scene of Agent Terry’s death. This past April, he and two of the other named defendants pleaded guilty to the two main charges. and face up to 10 years in prison, I assume based on a plea deal that will become evident at sentencing, and possibly later at the trial of the remaining defendants in September.

During Avila’s allocution, no mention was allowed to be made of Agent Terry’s death, or of Fast & Furious, or the two guns. Follow the linked Fronteras leads to other stories, which shows that Agent Terry’s family had sought to be listed as victims in the Avila 20 case, that petition denied by a Tucson Federal judge in Jan 2012, then accepted an informal deal with the new federal prosecutor to withdraw in Feb 2012. Their reasoning: “The request would have opened the possibility of turning the smuggling case into one against the Bureau of Alcohol Tobacco and Firearms.”

If you throw the Department of Justice into the mix, that is precisely the point. They should be.

I’ll tell you why.

The deaths of hundreds of Mexican citizens and Agent Terry were a direct result of acts certain people within ATF, and possibly DOJ, caused to happen.

As long as this case is about the smuggling of guns by straw buyers, and not the intentional or irresponsible placing of guns into the hands of criminals, the real crimes go unaddressed and unpunished. It is my conclusion that the ultimate government purpose now, both in this trial against straw buyers, and in the series of dodges and stalls before Congress, is to hide a series of crimes in which the government was the principal instigator.

My view is that enough crimes were committed, almost from day one of Fast and Furious, that had timely indictments been made, the need to spend millions of tax payer dollars in finding out about a potential cover up would be unnecessary.

The State of Arizona could still lead in this regard.

The Crimes: First things first.

When a man enters a gun store, several laws come into play, not only one. It’s like every young Catholic is taught, there is more than one sin in a lewd thought. And both state and federal laws apply.

And violation of some of those laws can be “more criminal” than others.

First, a buyer must prove he is qualified to buy a gun. He must be of age, a legal resident or citizen, be free of a felony past, and finally, he must, in writing (there’s a federal form for it) that the purchase of the gun is for his personal use, and not for resale, or the use of another.

As a buyer, it’s a crime to lie about those things, and it’s a crime to transfer the weapons purchased. These are the principal charges against the Avila 20. There is no mention that it was the ATF who so easily placed those guns into the straw buyers’ hands in the first place, or that, but for the ATF, the buys would never have taken place.

There are other crimes, NOT MENTIONED in the indictment, placing certain duties on the selling end of the transaction.

So, for the store owner it is a crime to ignore the falsehoods of buyers or the likelihood they will transfer them for still other criminal purposes.

With this many guns being purchased, especially considering the damage they could do (these weren’t hunting rifles), ordinarily the gun store owners would be indicted as well. Of course, they weren’t here because they were working with/for the ATF. That was the plan. They had been immunized of the crimes they committed. But these were crimes, nonetheless, a point everyone seems to forget.

Up to a point, the government can forgive the trespasser, but never the trespass. But as Eichmann found out, at some point the crime becomes so inherently dangerous, or manifestly heinous, a simple “I was only obeying orders,” or “the DOJ said it was OK won’t do.

Remove the ATF from this buy-sell scenario and simply replay events. The guns would never have been sold in the quantities that they were sold in the first place.

Without the ATF covering their backs, if a buyer makes multiple purchases of guns, such as these, the gun dealer has (at a minimum) the duty to report it to ATF who would then follow it up to ascertain if the guns were for personal use, and locked away in a safe somewhere.  That’s routine, for many law-abiding citizens make multiple gun purchases. (State law usually controls this, as only this week Virginia repealed a one-handgun-a month-law that had been in place for nearly two decades. There is no federal law limiting the number of weapons one can buy in any given period.)

Most of the Fast and Furious purchases were in the range of 5-to-10 at a time, enough to raise suspicion to any seller under ordinary circumstances.

What’s at stake for the seller: The dealer’s duty to report, or deny, the sale is for his own protection. This duty is based in common law as well as general state criminal laws ranging from accessory before a crime to wanton endangerment, for he knows that if he places dangerous instrumentalities into hands he believes are likely to use them for a criminal purpose, he could face criminal charges as well.

Example: If my brother rushes up to me asking for my pistol, because he has just caught his wife in bed with his best friend, and I give it to him, then he does the dirty deed to one or both of the dirty-riders, am I also culpable criminally?

Yes. But don’t forget civil penalties, especially if I live in a mansion and my brother in a trailer park. The gun dealer can be sued for damages, just as OJ Simpson was, his store turned into a flower shop bought by two Greenpeace volunteers at public auction.

So, why weren’t the gun store owners sued, by not only the Terry family but the myriad of Mexican families who had loved ones murdered, each of those guns traceable back to a single transaction with an individual gun dealer? Where are the ambulance chasing Juan Edwards of the southwest? Where are the radio and TV ads in Sonora, asking victims’ families to call 1-800-GUN-SHOT (Si usted o algún ser querido…)

The bottom line is that while ATF and their magic immunizing needle can immunize the store owners, but they cannot erase the crime.

So while we have charges, even guilty pleas for a series of nickle and dime conspiracy and illegal transfer violations, suddenly no one is responsible for up to 300 deaths, including one American, Arizona citizen named Brian Terry.

Suddenly these deaths were  just one big Oooooppps. A paperwork malfunction. As Janet Reno said during the Waco hearings, it was the fault of process.

Knowingly providing weapons to people one knows were intended for use in crimes is a crime, and, at some point, cannot be immunized. That “some point” is found among individuals within the ATF, standing alone, or individuals inside the ATF, standing shoulder to shoulder with individuals in the Department of Justice who told them all this was OK.

This really should not be difficult to prove.

Wanton endangerment works best for me, at the very least, since there are ample facts already in evidence to prove them, requiring no intent, nor injuries or dead people. Putting people in harm’s way is enough.

At the DOJ’s end, at the minimum their failure to act as officers of the Court and indict and prosecute crimes that are squarely in front of their noses. Like wanton endangerment, evidence, as it unfolds can increase this to a full-blown cover-up and collusion.

Either way, these are giant steps past a mere  “ooopps” in process.

Figuring this out is really simple.

Fast and Furious began with a  Plan, and it would be written down. Agents on the front line would not be read into the overall Plan, only their compartmentalized role in it. I assume Issa has seen this Plan, plus the many operational addenda that various action offices added, as well as the legal findings and rules of engagement provided by the District Attorney or one of his minions, (Cunningham or Hurley).

Together, on paper, they would have approved a Plan which, BY LAW, was required to prevent the guns falling into the hands of criminals who would likely use them in the commission of crimes, putting public safety at risk. The Operation had to achieve its mission within these legal parameters, or fold.

If not, the Plan was fatally flawed from the beginning, sort of like when the committee designing Chevrolet’s back in the 70s required the engine block to be lifted out in order to change the plugs on their new and improved Monza. It should never have been allowed to go into production.

If the Plan going forward is flawed, that is one set of offenses. If the ATF steps outside the parameters set by DOJ, that is different set of offenses. In one the DOJ is a co-conspirator, in the other, they have failed to act in accordance with their duties as officers of the Court.

I haven’t seen the Plan, or the DOJ’s advice, so can’t know which is which now, but do know that contrary to upper-management ATF officials testimony there was never any intention to allow the guns to actually walk into the hands of criminals,  the fact that 70% did proves that 1) they lied or 2) the Plan was as incompetently put together as the loan package for Solyndra and as with Solyndra ,various levels of ATF and DOJ were not on the same page. Or even playbook. (Which brings up a whole new set of offenses.)

Both in determining whether intended or unintended, accident, bad luck, blithering indifference (after all the only persons likely killed would be Mexicans) or incompetence, these things matter only to degree: whether the perpetrators get 1-to- 5, or 10-20 years. They are all criminal because of the risks citizens were placed under.

So then, why did the federal prosecutors chase after a bunch of 5-year penalties for making false statements, leaving the wrongful death of a federal agent (and hundreds inside Mexico) unindicted to several people in the chain, when they had the guns that did it, and knew the store owners and buyers who began the chain that put those guns into criminal hands? Why did the feds go after the 5-to-10 and ignore the 25-to-life charges of  being accessories before the fact of murder.

In all likelihood, why  federal prosecutors did not these kinds of  charges is that they would have had to admit a theory of crime in which they themselves participated, and perhaps even launched.

Follow me here. The bone of contention that arose early between field agents (such as whistle-blower John Dodson, in Phoenix) and supervisor (David Voth) is that he were allowing the guns to walk, even as this, according to reports, was contrary to stated ATF policy as enunciated by higher-ups in congressional testimony. Somebody was lying.

In the ordinary world of dog-eat-dog career bureaucrats, front line decision-makers would have been dumped on and indicted quickly, and that would have been the end of it, in early 2011. But this is not what happened. In fact, curiously, a couple of key actors were moved and maybe even promoted, reminiscent of what happened with FBI supervisory agents immediately following WACO.

I am convinced that these guns did not walk due to a couple of rogue superviros. More likely, at certain levels ATF managers believed that, just like the store owners, they were immune from all of the most serious consequences of their intentional actions. Likely this belief could have been obtained from the local DA’s office, or higher up.

From the approximate time the Avila 20 indictments were handed down, (Jan 2011) and the more serious crimes (which still cannot be mentioned in court, and presumably before any jury) were buried instead of being pursued, the ATF and DOJ have been moving in concert. At 18 USC 371, this is known as “Conspiracy”, yet another offense, so I’m inclined to believe DOJ is covering themselves as much as they are ATF.

Now, none of these federal agents are killers, I’m sure. No one intended to hurt anyone. But many are cynical careerists,  bureaucrats,who will quickly reorganize their priorities when something goes wrong, so as to protect their careers (and pensions) first. Especially if forfeiture or jail time may be involved. More was at play here than process gone awry.

What has gone amok is the belief, among many federal officials that they can be immunized simply by an OK from a federal lawyer once a crime becomes manifest, and, I submit, this was long before Agent Terry was killed. With all those guns nowhere to be traced, they knew something had to go wrong.

This is the real lesson from Fast & Furious; that federal law enforcement agents and Department of Justice officials believe they can forgive themselves of any crime. 

After all, it was Barack Obama, on the advice of Eric Holder, who ordered the assassination of an American citizen, then told the world it was legal, a righteous shoot. It wasn’t. Yes, he may have pardoned himself, but we’ve been watching this sort of imperial sense of legal immunity since Waco, and the people simply cannot permit its government to continue to write their own get out of jail free cards, as if they were 16th Century nobility.

So in the end, the current federal case against 20 defendant straw buyers (US v Avila et al) in Phoenix is being prosecuted by co-conspirators to the crime, with the express purpose of keeping their involvement out of it.

So what do we do about it?

Now, I’d love to see Darrell Issa move to ask for a special prosecutor against the ATF and DOJ on these criminal charges, as the criminal case has already proved itself. My suggestion is that Issas and Grassley do a full-blown timeline, with documents, publish them privately, like the Warren Report, stating the case from the angle of wanton endangerment. Name names, and Holder’s doesn’t need to be mentioned.  Go to the floor of the House and do a 30-minute power point, then let it be known that the next administration will chase these crimes and the unindicted co-conspirators once the Obama regime are dissolved. Let them know this now, gentlemen.

And the state of Arizona is not without it own power to shake the ‘simmon tree either, although it has waited a long time. (There may not be an federal “wanton endangerment statute.) Virtually every major crime I’ve mentioned here is an Arizona crime, too. Agent Terry was an Arizonan. And I’d bet prosecutors in Sonora would like to see a little justice brought on behalf of all the families in Mexico and would be happy to work with Arizona prosecutors.

You’ll notice I haven’t said much about Eric Holder.

I’ll drop the Nixon analogy where all the criminals in the Watergate break-in were offered lighter sentences, even a week at Disneyland, if they’d just help nail Nixon’s ass to the White House garage. After all Nixon’s crimes were much more serious than the deaths of 300 people, or so they say. They were so serious you might have thought he’d have sold secret rocket technology to the Chicoms…no wait, that was Bill Clinton. Yes, now I remember, it was his enemies list, which, at last report, was one-one hundredth the size of Barack Obama’s.

In any case, such political crusades by honest men are unseemly. They belong to scoundrels.

Just go after the crimes, do it right, and everything else will fix itself.


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