U.S. v. Ford
| Decision Date | 11 December 2008 |
| Docket Number | No. 07-1176.,07-1176. |
| Citation | 550 F.3d 975 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Stan Taran FORD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs) Office of the Federal Public Defender, Denver, CO.
Andrew A. Vogt, Assistant United States Attorney, (Troy A. Eid, United States Attorney, with him on the brief) Office of the United States Attorney, Denver, CO.
Before TYMKOVICH, GORSUCH, Circuit Judges, and PARKER, Senior District Judge.*
Stan Taran Ford was convicted for illegally selling or possessing a machine gun. Ford's primary defense at trial was entrapment. After he was convicted, Ford alleged the government failed to produce multiple emails sent between him and the informant. The district court found that three undisclosed emails existed, but denied a post-trial motion to set aside the conviction, concluding that these emails would not have affected the outcome of the trial. We agree with the district court that in light of all the evidence presented at trial, the emails were not sufficiently material to cast doubt on the jury's verdict.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court's judgment.
Colorado's Joint Terrorism Task Force (JTTF)1 obtained a tip in late 2003 from Ford's co-worker Jimmy Hee that Ford was trafficking in automatic weapons and engaging in other suspicious activity. According to the tip, Ford, a Denver firefighter, owned illegal fully-automatic firearms and was attempting to procure sensitive military communications equipment. Ford also allegedly asked Hee about a NATO conference in Colorado Springs and a planned visit by Secretary of Defense Donald Rumsfeld to Fort Carson.
As part of their investigation, the JTTF recruited Keith Heavilin to work as an informant. Heavilin had previously worked as an informant in several other JTTF investigations. Prior to working on this case, Heavilin had also served in the military for twenty-one years and was employed by the security division of the U.S. Department of Energy for sixteen years.
In February 2004, Heavilin struck up a conversation with Ford at a gun show in Denver, where Ford was an exhibitor. Ford soon perceived Heavilin to be a friend. Over the next year and a half, they had over 100 contacts with each other via phone, email, and in person.
During this time, Ford sold Heavilin three machine guns. The first transaction occurred on April 22, 2005, when Ford sold Heavilin a Sten machine gun. The next transaction occurred several months later, on August 2, 2005, when Ford sold Heavilin a H & K machine gun. Finally, on November 21, 2005, Ford sold Heavilin a fully automatic AR-15 machine gun.2
Ford was charged with three counts of knowingly transferring or possessing a machine gun, in violation of 18 U.S.C. § 922(o).3 The three counts were based on the April 22, August 2, and November 21 machine gun sales.
Before trial, Ford filed a motion to obtain the government's case files pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). During a hearing on this motion, Ford specifically requested any emails between Heavilin and himself. Ford did not have access to the emails because the government seized his computer when he was arrested. Although the government produced several emails, Ford told the court he believed more emails existed, and this evidence would support his defense. The government responded by stating it was not aware of any additional emails, but it agreed to recheck its records. The prosecution did not provide Ford any additional emails prior to trial.
At trial, Ford did not deny he sold Heavilin the three machine guns. Instead he argued he had been entrapped by the government.
In support of the entrapment defense, Ford argued Heavilin continuously pressured him over a long period of time to acquire and sell the three machine guns— crimes Ford was otherwise unwilling to commit. In particular, Ford's counsel highlighted the substantial number of contacts Heavilin initiated with Ford. The attorney summarized these contacts in a spreadsheet presented to the jury, and repeatedly referred to them during trial. For example, in his closing argument counsel stated the following:
This is the exhibit that you have seen, at least the first page, you have seen it a lot. But what you need to focus on for a minute is the sheer number of contacts initiated by Keith Heavilin. . . .
And what is he calling all of these times to do? He is calling all of these times to persuade and talk a man into selling him a gun who told him, no, I don't sell automatic weapons, I thought you were talking about a semiautomatic weapon, I can't help you. That is call after call, meeting after meeting, for one purpose only; to make him think you are a friend, and to persuade or talk him into selling you an automatic weapon.
R., Vol. XV at 1832-33 (emphasis added). As counsel explained, "This exhibit is a roadmap for entrapment." Id. at 1835.
During the trial, both the prosecution and the defense highlighted the substantial interactions between Ford and Heavilin. From the time they first met on February 7, 2004, to the time of Ford's arrest, the two communicated by phone, email or in person over one hundred times. Up to the first machine gun sale on April 22, 2005, Heavilin and Ford communicated fifty-nine times. Then, between the April 22 and August 2 transactions, they communicated another twenty-five times. Finally, between the August 2 and November 21 sales, they communicated nineteen times. Most of these communications were by telephone, although they met in person thirteen times and sent seventeen emails.
The following is a chronology describing interactions that occurred after the second sale.4 The bold text reflects information contained in the missing emails. The remaining text is based on the trial record.
After Ford and Heavilin completed the last transaction, law enforcement officers arrested Ford early the next day.
The jury's verdict was split—acquitting Ford on the April 22 and August 2 transactions and convicting him based on the weapon sold or possessed on November 21, 2005.
Ford subsequently filed a motion for a new trial, alleging the government violated Brady by withholding evidence material to his entrapment defense. In particular, he alleged the government withheld emails sent by Heavilin "that were exculpatory in that they would have provided documentary evidence to support [Ford's] assertion that he was subject...
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