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#547 Motion for Directed Verdict

#547 Motion for Directed Verdict

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Published by NoloContendere
Motion for a directed verdict from US v. Clark
Motion for a directed verdict from US v. Clark

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Categories:Types, Business/Law
Published by: NoloContendere on Feb 25, 2013
Copyright:Attribution Non-commercial


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Idan C. Greenberg,CR-10-01047-6Defendant. The Defendant, Idan C. Greenberg by and thorough undersigned counsel requeststhe Court to grant Defendant’s Motion for Directed Verdict on Counts 1, 74, 81 and 89.
Pertinent Facts
Defendant Greenberg (hereinafter “Greenberg”) has possessed a Federal FirearmsLicense (Class I) since 1980 and a Special Occupational Taxpayers License (Class III)dealers’ license since 1985.
A summary of Greenberg’s testimony at trial was that inApril 1998, Greenberg met Defendant Clark (hereinafter Clark”) at a ThompsonCollectors shoot as participants in the Kingman Gun Club. Clark informed Greenberg hehad pre-May 1986 transferrable side plates for sale. Greenberg was not shown the side plates nor was Greenberg told how side plates were made. In the summer of 1998,Greenberg purchased a parts kit for a 1919 A4 Browning from Ohio Ordinance. Later, inthe winter of 1998, Greenberg provided Clark with the parts kit and paid him to assemblea 1919 A4 Browning machine gun. After Greenberg paid Clark to assemble the parts kitfor the Browning several months passed.
Case 2:10-cr-01047-ROS Document 547 Filed 02/08/13 Page 1 of 6
In April, 1999 ATF/NFA (National Firearms Act Branch) approved the transfer of the A4 Browning from Clark to Greenberg via ATF Form 3. By June, 1999 Clark hadstill not delivered the Browning to Greenberg. Clark transferred the Browning toGreenberg on July 7, 1999 with the completed approved ATF Form 3. Subsequently,Greenberg sold the Browning to Ralph Fox. Greenberg stated the same information onthe ATF Form 4 given to him by Clark when he transferred the machine gun to Fox. ATFapproved the transfer from Greenberg to Fox on 12/11/1999.A second 1919A4 Browning serial number 860012729 was transferred from a Dr.Derell Revis to Greenberg. ATF approved the transfer on a Form 3 on May 2, 2003.The second 1919 A4 Browning was also a Clark side plate machine gun.The subject 1910 Maxum machine gun serial number SAP453187 was a side plategun. Greenberg purchased the Maxum from Defendant Kalish. The transfer again wascompleted on an ATF Form 3. Unbeknownst to Greenberg the 1910 Maxum wasassembled by Defendant Arnberger. The Maxum was approved for transfer by ATF toGreenberg on July 24, 2003 and Greenberg took possession of the Maxum on August 23,2003. In the transfer of all of the subject firearms Greenberg relied on ATF approval(either on a Form 3 or Form 4) for all of the transfers.At trial, Clark testified that he removed the serial number, and other manufacturer’s markings from side plates and inserted the serial numbers and markingson the firearms the government presented at trial as evidence. Clark testified he performed the work alone. Neither Clark, Revis or Kalish testified they ever requestedGreenberg to provide false information for their transfer of the firearms to Greenberg. Neither was there testimony from any witness that Greenberg was to provide falseinformation ATF Examiners when the weapons were sold to successive buyers.
Case 2:10-cr-01047-ROS Document 547 Filed 02/08/13 Page 2 of 6
ARGUMENTThe Government Failed to Establish an Interdependent Conspiracy Between theDefendants as Charged In Count One of the Indictment.
In order for the Government’s conviction on Count I, Conspiracy to stand the Court mustfind that the government provided evidence to the jury that demonstrated “(1) that two or more persons agreed to violate the law, (2) that the defendant knew at least the essentialobjectives of the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and (4) that the alleged coconspirators were interdependent.”
United States v.Caldwell 
589 F3 1323 (2009).
Clark never entered into an agreement with Greenberg to engage in illegal activity.At trial, while exhibiting regrets for his behavior, Clark clearly related to the jury that hedid not believe
at the time
he engaged in his behavior that he was committing any illegalacts. The law in area was not clear in 1993 when Clark began to engage in this conduct.Clark was never sanctioned or even questioned by ATF Examiners about his conduct.Therefore, it would make perfect sense that Clark did not testify that he and Greenberghad an agreement to defraud or engage in any illegal conduct due to Clark not believinghis conduct was illegal.Furthermore,
clearly stands for the premise that in order for thedefendants to be engaged in a conspiracy there has to be an “interdependent relationship.”
is instructive to the case at bar. In
the defendant was convicted of entering a conspiracy to sell marijuana. However, the Appellate Court found that whileCaldwell and co-defendant Anderson were both being supplied marijuana by
co-defendant Herrera, both Caldwell and Anderson were independent drug dealers and eachhad conspired with Herrera in their own separate relationship. Co-counsel summarizedthe argument best in his Omnibus Motion. In
 Kotteakos v. United States,
328 U.S. 750(1946) , a broker obtained fraudulent loans for 31 people. All were tied together as awheel conspiracy but the government failed to establish a rim linking the creditors with
Case 2:10-cr-01047-ROS Document 547 Filed 02/08/13 Page 3 of 6

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