US v. Goff
| Citation | 677 F. Supp. 1526 |
| Decision Date | 31 December 1987 |
| Docket Number | No. 86-CR-0168S.,86-CR-0168S. |
| Parties | UNITED STATES of America, Plaintiff, v. Charles William GOFF, Sr., Charles William Goff, Jr., American Research and Development Company, Inc., and American Arms International, Inc., Defendants. |
| Court | U.S. District Court — District of Utah |
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Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff.
Max D. Wheeler, Stanley J. Preston, Larry R. Laycock, Snow, Christensen & Martineau, Salt Lake City, Utah, for defendants.
This matter is before the court on the motion to suppress of defendants Charles Goff, et al. (the Goffs). The Goffs were indicted on twelve counts under 18 U.S.C. § 152 (bankruptcy fraud); 26 U.S.C. §§ 5861(d) and 5871 (); 18 U.S.C. § 2 (aiding and abetting); 26 U.S.C. § 5861(f) (); 26 U.S.C. § 5861(g) (); and 18 U.S.C. §§ 922(m) and 924, 26 U.S.C. § 5861(l) (). Pursuant to Fed.R.Crim.P. 41(e), the Goffs move to suppress all evidence taken in this case on the grounds that each of the seven warrants used in the seizures is fatally defective and that, taken together, the searches showed a flagrant disregard for the Goffs' Fourth Amendment rights. They assert Warrant 1, an inspection warrant, and Warrant 2, a search warrant, are defective because they were issued without a proper showing of probable cause. The items seized under the subsequent warrants (Warrants 3-7) should be suppressed as "fruits of the poisonous tree," because the evidence supporting probable cause for each was uncovered during the searches conducted under Warrants 1 and 2. The Goffs also assert that even if the warrants were supported by probable cause, the searches exceeded their authorized scope.
On October 11, 1979, American Arms International, Inc. (AAI), a wholly owned subsidiary of American Arms, Inc., became licensed as a firearms manufacturer. Charles W. Goff, Sr. (Goff Sr.) owned the company, Charles W. Goff, Jr. (Goff Jr.) acted as its president, and Goff Sr.'s wife, Gloria Goff (Mrs. Goff), as its secretary.
AAI filed a Chapter 7 bankruptcy on August 23, 1984, in which R. Kimball Mozier was appointed trustee. The Acquisition and Disposition books of AAI show that approximately 618 firearms were destroyed on February 28, 1987. On May 15, 1985, nine months after commencement of the AAI bankruptcy, the Goffs obtained a firearms manufacturer's license for American Research and Development Co. (ARDCO), another wholly owned subsidiary of American Arms, Inc. This time Goff Sr. was President of the company, and Goff Jr. was Vice President and Secretary/Treasurer.
In April of 1986, the Bureau of Alcohol, Tobacco and Firearms (BATF) received a letter from the National Firearms Act Branch (NFAB), the compliance branch of the BATF, stating that some machine gun manufacturers were purposefully overstating the number of machine guns they produced before May 19, 1986, the effective date of the Firearms Owner's Protection Act of 1986 (the Act). The new law contains an amendment, codified at 18 U.S.C. § 922(o), that prohibits possession or transfer of machine guns.1 The NFAB specifically requested BATF field offices to inspect the premises of firearms manufacturers for on-site verification of compliance with the amendment.
Agent Steven Bauer of the Salt Lake BATF visited ARDCO on May 29, 1986 to verify that 1,000 AM 180 machine guns declared to have been produced on May 15, 1986 had in fact been manufactured. An employee, Sheree Olsen, told Agent Bauer he could not enter the office or warehouse, and suggested he telephone Goff Sr. for an appointment to inspect when the Goffs would be present. Agent Bauer called ARDCO later that afternoon and twice the next morning. Each time Olsen replied that Goff Sr. was in transit and would call Agent Bauer when he arrived.
At approximately 2:00 p.m. on May 30, 1986, Goff Jr. telephoned Agent Bauer, and told him Goff Sr. was en route to Florida with 1,000 machine guns minus 40 to 50 that remained in the Salt Lake City warehouse. Goff Jr. said he would be in Florida for the next few days, but would assist Agent Bauer in an on-site inspection when he returned. After speaking to Goff Jr., Agent Bauer obtained an inspection warrant (Warrant 1) from a federal magistrate, and executed it the same day,2 assisted by BATF Resident Agent in Charge, Jerry Miller, and Special Agents Swehla and Hall. The agents informed Olsen, the sole ARDCO employee on the premises, they were looking for firearms allegedly produced on May 15, 1986. They then searched the establishment in all places where firearms or firearm receivers (the component that makes the firearm fully automatic) could be stored. The agents also examined the ARDCO records and discovered a Form 2 book, the registration form for the production of firearms, which contained information that on May 16th, 1984, an additional 1,000 machine guns had been produced and registered with the BATF. No evidence of those firearms was found on the premises.
Olsen told the agents the 1,000 machine guns allegedly produced on May 16, 1986 were also being transferred by Goff Sr. to Florida. She then showed Agent Bauer an invoice, dated May 15, 1986, for 1,000 AM 180 receivers from Advanced Manufacturing Technology (AMT), a Salt Lake City company. At the conclusion of the search, Agent Bauer seized ARDCO's Form 2 Registration books and its Acquisition and Disposition of Firearms records. From the records, he calculated that ARDCO should have had approximately 700 firearms and silencers in inventory, or appropriate disposition forms and records.
On June 2, 1986, the attorney for ARDCO gave Special Agent Miller a photocopy of a May 18, 1986 letter addressed to the BATF and signed by Goff Sr., requesting the BATF to disregard the registration of machine guns produced on May 15 and 17, 1986. The next day, June 3, 1986, Dennis Barney, General Manager of AMT, confirmed to Agent Bauer that on May 16, 1986, ARDCO contracted with AMT to produce 1,000 M-2 Model C machine gun receivers for $30,000. Barney said AMT received payment in full for the contract, and was told to produce the receivers as soon as possible because an imminent change in the Federal Firearms laws would affect their production.
Agent Bauer then met with Inspector Marin of the BATF who informed Agent Bauer that while conducting a routine compliance inspection of ARDCO on April 25, 1986, she showed Goff Jr. a copy of the proposed amendments to the firearms statute that would prohibit possession and transfer of machine guns manufactured after the effective date. At that time, Inspector Marin heard two telephone conversations in which Goff Jr. said the Goffs had "four weeks at the outside" before the new law would take effect. Exhibit "B."
On the basis of the information obtained from the records, letter and interviews, Agent Bauer obtained and executed a search warrant (Warrant 2) on June 5, 1986. Four subsequent searches of ARDCO, under Warrants 3-7, resulted in the seizure of various records and inventory.
The Goffs now move to suppress all evidence taken in this case as having been seized under invalid search warrants.
The Government asserts that under the Gun Control Act of 1968, 18 U.S.C. § 923(g)3, no warrant was required for the initial search; therefore, the search cannot be invalidated on the ground that the warrant was not obtained upon a showing of probable cause. As supporting authority, the Government cites United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), in which the United States Supreme Court held that under the Gun Control Act, no warrant is required for regulatory inspections of federally licensed firearms dealers because "the statutory authority is the equivalent of a valid search warrant." United States v. Cooper, 409 F.Supp. 364, 368 (M.D.Fla.), aff'd, 542 F.2d 1171 (5th Cir.1976). The Goffs counter that Biswell says if the inspector's entry should be denied, as it was here; he cannot forcibly enter, but rather, must bring the appropriate civil or criminal action against the party, or obtain a valid search warrant upon a showing of probable cause. In this court's opinion, the Goffs misread Biswell and its progeny.
The Biswell Court addressed the constitutionality of the Act's provisions that allow warrantless searches of the premises of federal licensed firearms dealers. There, a city policeman and a Federal Treasury agent inspected the records of the defendant (a pawn shop operator who was federally licensed to deal in firearms), then requested entry into a locked gun storeroom. The defendant asked whether the agent had a search warrant, and the agent replied no warrant was necessary because section 923(g) authorizes warrantless inspections. After reading a copy of the section, the defendant permitted the investigators to enter the storeroom where they found two sawed-off rifles the defendant was not licensed to possess. The defendant was indicted and convicted on charges arising from his unlawful possession of the rifles. The Court of Appeals reversed, holding that section 923(g) is unconstitutional under the Fourth Amendment because it authorizes warrantless searches of business premises, and the defendant's "ostensible" consent was invalid. Biswell, 406 U.S. at 313, 92 S.Ct. at 1595, 32 L.Ed.2d at 91. The Supreme Court reversed the judgment of the Court of Appeals.
The Court began its analysis by referring to Colonnade Catering Corp. v. United States, a case dealing with the statutory authorization for warrantless inspection of federally licensed dealers in alcoholic beverages. 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed. 2d 60 (1968). Upon...
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