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Motion in Limine by James Vann

Motion in Limine by James Vann

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Published by NoloContendere
Limine for ATF internal policies; US v. Clark
Limine for ATF internal policies; US v. Clark

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Published by: NoloContendere on Nov 29, 2012
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12/04/2012

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JOHN S. LEONARDOUnited States AttorneyDistrict of ArizonaJAMES P. VANNSpecial Assistant U.S. AttorneyKATHY J. LEMKEAssistant U.S. AttorneyTwo Renaissance Square40 N. Central Avenue, Suite 1200Phoenix, Arizona 85004-4408Arizona State Bar No. 018468Telephone (602) 514-7500email:kathy.lemke@usdoj.gov
UNITED STATES DISTRICT COURTDISTRICT OF ARIZONAUnited States of AmericaPlaintiff,v.2. Randolph Benjamin Rodman, and 6. Idan C. Greenberg, Defendants.CR-10-01047-PHX-ROS
MOTION IN LIMINE TOPRECLUDE
The United States, by and through undersigned counsel, moves
in limine
to precludeRandolph Benjamin Rodman and Idan C. Greenberg, the defendants,
from using or referring tothe ATF’s National Firearms Act Branch Standard Operating Procedures Training Manual because theydo not confer any rights on the defendant and lack any relevance to the trial. Mr. Ernest Lintner testifiedin trial on November 28, 2012, that the defendant’s exhibit #402–ATF’s NFA Branch StandardOperating Procedures Training Manual–was completed in mid-2008. The last approved transfers of firearms in this case was February, 2008. Therefore, this manual was not implemented at the time of the Defendant’s transferred their firearms. Defendant’s cross examination or presentation of thismaterial will cause jury confusion and has no basis in law.
Case 2:10-cr-01047-ROS Document 460 Filed 11/28/12 Page 1 of 3
 
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These procedures are internal ATF documents regarding policies and procedures. These policiesare not contained in ATF regulations. These policies have never been publicly announced and have not been published in the Federal register or been disseminated to the public for public comment.ATF’s confidential, internal policies, practices and similar materials do not confer any privilegeor right on the defendant.
See United States v. Ani
, 138 F.3d 390, 392 (9th Cir. 1998) (evidence obtainedin violation of customs regulations not subject to suppression)
citing U.S. v. Caceres
, 440 U.S. 741, 744,755 (1979) (tape recorded evidence obtained in violation of IRS regulations not subject to suppression);
 see also U. S. v. Benevento
, 836 F.2d 60, 70 (2d Cir. 1987),
cert. denied 
, 486 U.S. 1043 (1988) (evidenceobtained in violation of customs regulations not subject to suppression). Moreover, internal policymanuals of Federal agencies do not generally create substantive rights in others.
See Schweiker v. Hansen,
450 U.S. 785, 789 (1981) (per curiam) (failure to follow 13 volume internal agency manual didnot provide a basis of estoppel against the government);
Coleman v. Perrill 
, 845 F.2d 876, 879 (9th Cir.1988) (internal U.S. Parole Commission manual provision was not a requirement, but merely an“aspiration”);
U. S. v. Fifty-Three Eclectus Parrots
, 685 F.2d 1131, 1136 (9th Cir. 1982) (provision ininternal U.S. Customs manual did not have the force of law and could not be asserted against thegovernment).
 Duckworth v. U.S. ex rel Locke
, 705 F. Supp 2d 30, 49 (D. DC. 2010) (rejecting claim thatdeparture from internal penalty guidelines constituted a violation of law);
Vargas v. U. S. ParoleComm’n,
865 F.2d 191, 195 (9 Cir. 1988)(rejecting claim that violation of internal rules constituted
th
 basis for legal challenge noting Defendant “claims the Parole Commission violated its Rules andProcedures Manual. Even if this were so, we have no jurisdiction to review departures from internalrules which are ‘merely statements of policy, organization, procedure or practice.” );
 Local 2855 AFGE (AFL-CIO) v. U.S.
,
 
602 F.2d 574, 582 n 28 (3d Cir. 1979) (rejecting claims that various internaloperating procedures used by the Army had the effect of law since these procedures were not officialregulations promulgated under the APA and therefore do not prescribe any binding rule of law on theagency and cannot be used as the basis for an attack upon the Army's decision).For the Defendant to attempt to use the Policies and Procedures of ATF to demonstrate that therights of the defendant were violated, the defendant must show that the policy in question had the forceand effect of law, i.e., that the policy “(1) prescribe[d] substantive rules-
not 
interpretive rules, general2
Case 2:10-cr-01047-ROS Document 460 Filed 11/28/12 Page 2 of 3

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