United States v. Jackson

Citation926 F.Supp.2d 691
Decision Date04 February 2013
Docket NumberNo. 2:10–CR–8–FL.,2:10–CR–8–FL.
CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
PartiesUNITED STATES of America, v. Gary JACKSON, William Wheeler Mathews, Jr., Andrew Howell, Ronald Slezak, and Ana Bundy, Defendants.

OPINION TEXT STARTS HERE

John Bowler, Eric D. Goulian, Jason Harris Cowley, U.S. Attorney's Office, Raleigh, NC, for United States of America.

ORDER

LOUISE W. FLANAGAN, District Judge.

Five motions to dismiss, fully briefed, and on which, with one exception, oral argument was received December 12, 2012, come now before the court.1 These include motion directed to count one of the indictment, alleging a conspiracy in violation of 18 U.S.C. § 371 (DE # 238), joined in by all five defendants, including Gary Jackson (Jackson), William Wheeler Mathews, Jr. (Mathews), Andrew Howell (Howell), Ronald Slezak (Slezak), and Ana Bundy (Bundy). Motion to dismiss counts two through six of the indictment, alleging repeated violations of 18 U.S.C. §§ 924(a)(1)(A) and 2 (DE # 246), filed by defendants Jackson and Slezak (DE # 246), comes now before the court. Also addressed below is motion to dismiss counts eight and nine, alleging violations of 18 U.S.C. §§ 922( o )(1) and 2, and counts eleven, and twelve of the indictment, alleging violations of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2 (DE # 244), filed by defendants Jackson and Mathews. Defendant Howell's motion to dismiss count fourteen, alleging violation of 18 U.S.C. §§ 1512(b)(2)(B) and 2, and count fifteen, alleging violation of 18 U.S.C. §§ 1519 and 2 (DE # 242), comes now before the court, together with defendant Bundy's companion motion to dismiss to count 14 (DE # 248). All of the issues raised of or relating to these motions to dismiss are ripe for decision.2

BACKGROUND

Indictment filed April 16, 2010, charges that from about January 2003, and continuing thereafter until about November 2009, defendants conspired to commit offenses against the United States, including making false statements in records of a federally licensed firearms dealer, possessing machine guns and unregistered firearms, and obstructing justice. In addition to conspiracy, the indictment charges defendants in individual counts, in various combinations, with committing violations of federal law that constitute alleged overt acts of the conspiracy.

According to the indictment, defendants are former employees of Blackwater Worldwide, Inc. (“Blackwater”), primarily a defense contractor headquartered in Moyock, North Carolina, with property in the vicinity covering approximately 7,000 acres, including offices, an armory, classrooms, and training grounds. 3 Blackwater contracted with various agencies to provide training with both military and law enforcement applications, and to provide security services in Iraq, Afghanistan, and other locations worldwide. Throughout the charged time frame, Blackwater was a federally licensed firearms dealer, subject to records and registration requirements under federal firearms laws. As such, it was “required by law to maintain truthful, accurate and detailed records relevant to the acquisition and disposition of all firearms which come within [its] control.” (Indictment at 2–3).

Jackson held the title of President of Blackwater, and was employed by the company between 1999 and February, 2009.4 Mathews held the title of Executive Vice President, and was employed by the company between April, 2004 and November, 2008. During the charged time period, Slezak was an employee responsible for all documentation and matters related to Blackwater's status as a federally licensed firearms dealer. Howell held the title of General Counsel at Blackwater, and was employed by the company between December 2005 and April 2009. Bundy held several administrative positions related to Blackwater's Moyock operations, and was employed by the company between 2002 and March, 2009. Other Blackwater employees identified in the indictment include Witness # 2, now identified by the government as Gary Flannelly, who executed several federal firearms registration forms that are subject of counts two through six of the indictment.5

According to the indictment, the object of the charged conspiracy was to gain an advantage over competitors in the defense contracting field and thereby profit from obtaining and maintaining government contracts. Access to automatic weapons and short barrel rifles was believed to increase Blackwater's ability to successfully bid and perform on training and protective service contracts. Defendants allegedly carried out the conspiracy by “devising and executing a means of circumventing the law as it relates to the possession and disposition of firearms.” (Indictment at 7). The conduct constituting the alleged manner and means of the conspiracy is grouped in the indictment into several categories, with corresponding overt acts and substantive charges, as summarized below.

A. Camden County Machine Guns

According to the indictment, one means of the conspiracy involved “straw purchases” of machine guns through the Camden County Sheriff's Department (“CCSD”). Jackson and Mathews allegedly enticed CCSD to pose as the straw purchaser of 17 Bushmaster M4 machine guns and 17 Romanian manufactured AK47 machine guns. In 2005, Witness # 1, now identified as Jonathan Worthington, a former deputy with the CCSD,6 provided letterhead to Blackwater, which then used the stationary to order the weapons from the manufacturer. Blackwater paid for the weapons, and, when they arrived at the CCSD, Blackwater took possession of them and locked them in its armory for use by Blackwater in its training contracts.

The indictment alleges the same conduct as overt acts in furtherance of the conspiracy. Similarly, in counts eight, nine, eleven, and twelve, the indictment charges Jackson and Mathews with illegally receiving and possessing these unregistered 34 machine guns, or aiding and abetting others in doing so, from about June 2005 to June 2008, in violation of 18 U.S.C. § 922( o )(1), 18 U.S.C. § 2, and 26 U.S.C. § 5861(d). In counts seven and ten, the indictment charges Jackson with illegally receiving and possessing two Steyer machine guns, and aiding and abetting others in doing so, from about January 2003 to July, 2008, in violation of the same statutes.7

B. King of Jordan Firearms

Another alleged means of the conspiracy consisted of Blackwater's alleged efforts to gain favor with the government of the Kingdom of Jordan. As alleged in the indictment, when the King of Jordan came to examine Blackwater's training facility, defendant Jackson and unspecified others “arranged to present the King and/or his entourage with several firearms as gifts.” ( Id. at 8; 13). According to the government, as a federally licensed firearms dealer, Blackwater was required to record the transfer of the firearms on an Alcohol, Tobacco, and Firearms (ATF) Form 4473. (Opp. at 2). But, instead of completing ATF Forms stating that Blackwater had transferred the firearms to the King of Jordan, after they “realized they were unable to account for the disposition of the firearms,” Jackson and Slezak, along with a third Blackwater employee Gary Flannelly, completed four ATF Form 4473s, attached as exhibits to the government's opposition, providing that Blackwater transferred the firearms to Flannelly (exhibits 1 and 3), Slezak (exhibit 2), and Jackson (exhibit 4), who signed the forms as “Transferee (Buyer).” (Opp. at 3, exhibits 1–4).

Thus, they completed the forms “to give the appearance that the weapons had been purchased by them as individuals.” (Indictment at 8). In August 2005, Slezak escorted an ATF inspection team to Blackwater's federally licensed firearms dealer records, which Slezak knew contained these falsified ATF Form 4473s. (Indictment at 14).

The government alleges this same conduct as overt acts in furtherance of the conspiracy, as well as the basis for substantive counts two through six. Particularly, the indictment charges Jackson and Slezak with felony violations for knowingly making false statements with respect to information to be kept in the records of a federally licensed firearms dealer, and aiding and abetting others in doing so, in violation of 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2.

The government's exhibits, which include the four ATF Forms involved in the conspiracy count and counts two through six, help illustrate the alleged basis for criminal liability in the substantive counts. The first ATF Form (Exhibit 1) states in Section B that the “Trade/corporate name and address of transferor” is Blackwater Lodge & Training Center, and it is signed by Slezak on June 20, 2005, listing his title as “weapon custodian.” The form states in Section A that the Transferee (Buyer) is Flannelly, and Section A is signed by Flannelly on June 8, 2005.

According to the government, even though Jackson did not sign the form, count two of the indictment charges Jackson with a felony violation for causing or aiding and abetting Flannelly in signing as purchaser. (Opp. at 3). The government concedes in its opposition to the motion to dismiss that count three charges Slezak with a misdemeanor for falsely signing the form as dealer, and charges Jackson with misdemeanor aiding and abetting Slezak. (Opp. at 3 n. 2).8

The second ATF Form (Exhibit 2) states in Section B that the “Trade/corporate name and address of transferor” is Blackwater Lodge & Training Center, and it is signed by Flannelly on June 20, 2005, listing his title in a manner that is not clearly decipherable. The form states in Section A that the Transferee (Buyer) is Slezak, and Section A is signed by Slezak on June 20, 2005. According to the government, count four charges Slezak with a felony violation for signing the form as purchaser, and charges Jackson with felony aiding and abetting Slezak. (Opp. at 3).

The third ATF Form (Exhibit 3) states in Section B that the “Trade/corporate name and address of...

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    ...more than one conspiracy in a single count, such a count is improper, as it is considered duplicitous. United States v. Jackson, 926 F. Supp. 2d 691, 700-01 (E.D.N.C. 2013) (citations omitted). The Court in Jackson provided the well compiled discussion of what constitutes a single or multip......
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