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JOHN S. LEONARDO United States Attorney District of Arizona JAMES P. VANN Special Assistant U.S. Attorney KATHY J. LEMKE Assistant U.S. Attorney Arizona State Bar No. 018468 Two Renaissance Square 40 N. Central Ave., Suite 1200 Phoenix, Arizona 85004 Telephone: 602-514-7500 Facsimile: 602-514-7693 Email: Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Idan C. Greenberg, Defendant. The United States of America, by and through its undersigned attorneys, submits the attached Response to Defendants Motion for Directed Verdict. Respectfully submitted this 22nd day of February, 2013. JOHN S. LEONARDO United States Attorney District of Arizona s/James P. Vann JAMES P. VANN Special Assistant U.S. Attorney CR-10-1047-06-PHX-ROS GOVERNMENT'S RESPONSE TO DEFENDANTS MOTION FOR DIRECTED VERDICT

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INTRODUCTION The Defendant urges this Court not only to grant his motion for a directed verdict

as to Count 1, but to apply his motion to Counts 74, 81, and 89. In order to support his motion, the Defendant is implicitly requesting that this court make all inferences in the Defendants favor by considering his testimony as true and ignoring the testimony of the other co-conspirators. Case law is clear that the Court should not substitute its judgment for the jurys and, further, it should resolve all reasonable inferences in the favor of the government, and any conflicts in the evidence are to be resolved in favor of the jurys verdict. United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010). II. ARGUMENT A. Count OneConspiracy Defendant begins his argument by stating that in order for the conviction as to Count 1 to stand the Court must find 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 essential objectives 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 F.3 1323 (2009). [Doc. #547, p. 3] But what the Defendant does not state is that this is a Tenth Circuit case that is not controlling in this Circuit. The Ninth Circuit has held, in a case also called Caldwell, that to prove a conspiracy under the defraud clause, the government need only show (1) [the defendant] entered into an agreement (2) to obstruct a lawful function of the government

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(3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy. United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993). Defendant uses the Tenth Circuit Caldwell case to argue that there are separate conspiracies and not one wheel and hub type conspiracy. This Circuit has addressed the issue of multiple conspiracies. In U.S. v. Ma, 176 F.3d 485 (9th Cir. 1999) the court stated: This court has explained the differences between single and multiple conspiracies: A single conspiracy exists, as compared with multiple conspiracies, where there is one overall agreement to perform various functions to achieve the objectives of the conspiracy. A single conspiracy may include subgroups or subagreements. The evidence need not exclude every hypothesis other than [that] a single conspiracy exists. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir.1987) (citations omitted). By contrast, [f]inding multiple conspiracies requires some evidence of separate agreements and purposes. United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir.1993), overruled on other grounds, United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). The Ninth Circuit has also considered the question of interdependence, as Defendant interprets it, and has rejected it. In U.S. v. Perry, 550 F.2d 524, 528-29 (9th Cir. 1977) the court addressed this type of argument: Defendants contend that the evidence produced at trial was insufficient to establish that they participated in the single conspiracy charged in the indictment. They argue that the government has not shown that each of the defendants worked directly with each other nor even shown that all of the defendants knew each other. However, under the law of this circuit such a showing is not necessary. The government is not required to show direct contact or explicit agreement between the defendants. For the convictions to stand, the government must produce enough evidence to show that each defendant knew or had reason to know the scope of the distribution and retail organization involved with the illegal narcotics, and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture.


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Given the evidence at trial, which is discussed below, Mr. Greenberg was well aware of the scope of the conspiracy and his benefit was dependent upon the success of the entire venture. Defendant further clouds the issue by stating as fact that Clark never entered into an agreement with Greenberg to engage in illegal activity. He cites to Clarks testimony that Clark did not believe that his behavior was illegal. But this representation that a conspiracy cannot be proven unless Clark believed that he was breaking the law is simply not required to violate 18 U.S.C. 371. In Ingram v. United States, 360 U.S. 672 (1959), the Supreme Court held that There need not, of course, be proof that the conspirators were aware of the criminality of their objective, but, rather, there must only be proof of knowledge of the unlawful conduct. Id. at 678. This holding was reaffirmed in United States v. Feola, 420 U.S. 671 (1975), where the Supreme Court again stated that the government need not prove anything more than the degree of criminal intent necessary for the substantive offense in order to convict a defendant of conspiracy. Id. at 686-87. This case is most similar to United States v. Touhey, 867 F.2d 534 (9th Cir. 1989). In that case, the defendant was charged with conspiracy to defraud the United States by interfering with and obstructing the FDICs lawful government function of administering the provisions of the Change in Bank Control Act of 1978. Id. at 535. The Court, relying heavily on Dennis v. United States, 384 U.S. 855 (1966), states that the defraud part of section 371 criminalizes any willful impairment of a legitimate function of the


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government, whether or not the improper acts or objective are criminal under another statute. Id. at 537, emphasis added. Defendants were charged under the defraud clause of section 371 because the conspiracy involved more than mere possession of machineguns manufactured after May 19, 1986. Rather it involved ATFs ability to administer the NFRTR and regulate

firearms. By destroying firearms registered in the NFRTR (an act that is not criminal in and of itself), and replacing them with newly manufactured firearms, as well as making misrepresentations on the applications for transfer, the defendants acts obstructed ATFs ability to regulate machineguns and administer the NFRTR. The Defendant goes farther and states that The law in [this] area was not clear in 1993 when Clark began to engage in this conduct. This statement is without support and is completely false. The law regarding the manufacture and registration of machineguns did not change during this time. The requirement that a manufacturer must register a newly manufactured machinegun has not changed since 1934, and 18 U.S.C. 922(o) was passed in 1986. The Defendant also states that Clark would not testify that he and Greenberg had an agreement to defraud due to Clark not believing his conduct was illegal. But again, this misstates the law and also ignores the actual testimony of Mr. Clark. Q. You didn't call ATF on this, did you? A. No. Q. Why wouldn't you call ATF and ask them about this? Did you know the answer? A. I had a feeling that I knew the answer.

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Q. So you didn't explore intentionally? A. Correct. Clark Testimony, p. 277, Line 13-19. Q. And you knew it wasn't a firearm until it got to the stage that it was a receiver; right? A. Yes. Q. You also knew that a piece of metal, regardless of what's on it, this isn't a receiver, is it? A. No. Q. Okay. And you had read 922(o); correct? A. Most likely. Q. And, well, you were aware that you can't manufacture post-'86 machine guns and sell them to the general public. It was -- that was the whole idea? A. Yes. Q. And you knew the requirements of manufacturing; correct? A. Yes. Q. And you had read 922(k) about instructions in the serial numbers. You can't destroy the serial number or remove it; right? You knew that? A. Yes. Q. You also knew that you fill out forms under penalty of perjury, the little penalty of perjury sign at the bottom that you have to sign for a Form 3 or a Form 4? A. Yes. Q. Are those the reasons that, in the back of your mind, you thought: Maybe I should ask someone about this? MR. TATE: Objection. When, Judge? MR. VANN: I'll clarify, Your Honor. I'm happy to. BY MR. VANN: Q. When you had this idea, when you were in the process of this, you said you studied all of this before you began this; correct? A. Correct. Q. So this would be prior to 1993; correct? A. Correct. Clark Testimony, p. 274-275, line 6-25, 1-13. The evidence at trial clearly demonstrated that George Clark either was aware of the deceitfulness (and illegality) of his actions or, at the very least, he was deliberately ignorant of the propriety of his actions. This Circuit has recognized that knowingly includes a mental state in which the defendant is aware that the fact in question is highly

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probably but consciously avoids enlightenment. U.S. v. Jewell, 532 F.2d 697, 704 (9th Cir. 1976). The evidence produced at trial is sufficient for the jury to conclude that Mr. Clark was aware that his actions were not lawful and were deceitful. He instructed the codefendants, through e-mails, how to fill out the forms in order not to raise ATFs suspicions. Also, while he inquired with ATF regarding another legal question, he did not call ATF about this issue stating that he knew that he would get an unfavorable answer. He admitted to knowing the definition of a firearm (which does not include the serial number) and he admitted to knowing that he couldnt remove a serial number from the firearm. There was also ample evidence at trial that Greenberg was part of this conspiracy. The Defendant refutes this by reciting only those facts that are beneficial to him in the Pertinent Facts of his pleading. For instance, he states, as fact, that he was offered a transferrable side-plate and that he was not shown the side-plate nor was he told how they were made. But Mr. Clark testified specifically that he made Mr. Greenberg aware of the manner in which the machineguns were made. Q. And how well did you know Mr. Greenberg? A. Not really well. More of an acquaintance. Q. Did there come a time where you agreed to build a firearm for him? A. Yes. Q. Now, we had discussed earlier the manner in which you had made these and you had stated that every FFL that you dealt with knew what the deal was. What did you mean by that? A. Well, they knew I was taking the plates out, the number and the manufacturer's information out, and putting them into the side-plate of whatever gun I was producing.

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Q. And is that something that you explained to Mr. Greenberg? A. He knew about it. I explained it to him. He had seen it and also he had seen Mr. Hall's Thompson. Q. So he was aware when you agreed to build a 1919 for him? A. Yes. Clark Testimony, p. 193-194, line 14-25, 1-4 [emphasis added]. The evidence that Mr. Greenberg became a member of the conspiracy was clearly shown at trial. First, Mr. Greenberg introduced Mr. Kalish into the conspiracy. Mr. Kalish testified that he was introduced to Mr. Clark by Mr. Greenberg and his participation in the conspiracy began when Mr. Greenberg introduced them. Q. How do you know George Clark? A. I was introduced or made aware of George Clark by Idan Greenberg. Idan came to me to talk to me about purchasing or having George Clark, who was a manufacturer, manufacture for me a 1919 A4 .30 caliber Browning machine gun. He told me that he had a registered side-plate and that if I supplied the parts kit, he would assemble it into a functioning transferable firearm. Kalish Testimony, p. 7, line 18-25. Further, this was not merely a buyer seller type of relationship. Greenberg provided a parts kit for the completion of the firearm. This information was confirmed by Mr. Clark under cross examination. Q. And so when Mr. Greenberg made contact with you, he sought to buy a transferable side-plate from you; correct? A. It was a complete weapon. Q. He never sought to buy transferable side-plate? A. If you're talking about in connection with a complete weapon, I did not transfer side-plates by themselves ever. Q. Okay. You expected him to provide you the parts, the parts from the Ohio Ordnance, he provided you a parts kit; correct? A. Correct. Clark testimony, p. 247, line 4-13.

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Further, Mr. Greenbergs participation in the conspiracy continued when he purchased a 1919 produced by Mr. Clark for Mr. Kalish. He purchased this firearm in order to resell it to one of his clients. See Greenberg Testimony, p. 53, line 12-25. Mr. Kalish, in his testimony, explained how this transaction occurred. Q. Why did you purchase the second firearm? A. Because it was -- this one, even though I knew what George was doing, it was an inexpensive way to get a .30 caliber belt-fed Browning and I -knowing how it was manufactured, I was buying it to keep for myself. Q. Were -- did you intend to sell it at all? A. I didn't plan on selling it, no. Q. Why were you -- well, why did you not plan on selling it? A. Because I knew how it was manufactured and wouldn't sell it to someone who didn't know that. Q. Why wouldn't you sell it to someone who didn't know that? A. Because what George was doing was illegal. Kalish Testimony, p. 26 line 2-13 Q. Now, you testified a few minutes ago that you never would have sold this because you knew how it was manufactured, but we just looked at a transfer form. Did this, in fact, transfer to Mr. Greenberg? A. Yes. Q. Did he pay you for it? A. Yes. Q. So you did sell it to him? A. Yes. Q. Why was he the exception to what you had done, what you had earlier stated? A. I wouldn't sell the gun to someone who was unaware of how it had been manufactured. Q. Well, how was he aware of how Mr. Clark was manufacturing it? A. Because he's familiar with George Clark and he knew that George Clark had manufactured this gun. Q. Had you, in fact, discussed George Clark's methods with him? A. Yes. Q. So this was not a big deal to transfer this to him? A. No. Kalish testimony, p. 29 line 2-23.

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Q. How about the second gun that you sold to Mr. Greenberg? A. When he looked at the second gun in my gun shop and asked me if I wanted to sell it, he said he had a client that was looking for one at that point. Q. Were both of you well aware of the methods by which Mr. Clark was building these? A. Yes. Kalish testimony, p. 84-85, line 24-25, 1-5 In addition to the direct evidence that Greenberg was a part of the conspiracy, there is also ample evidence that Greenberg worked to conceal the conspiracy, further demonstrating his role in it as well as showing that his benefit was dependent on the success of the venture. Q. Did there come a time when you had discussions with Mr. Greenberg about Mr. Clark and his methods and what was going on? A. I don't recall the specific conversation but we had a discussion about Mr. Clark's gun-building with a reference to Mr. -- a gun he was building for Mr. Diana, Anthony Diana or Tony Diana. Q. What was your understanding he was building? A. Mr. Clark was building a BAR, Browning automatic rifle, for Mr. Diana and it was taking an excessive amount of time. And Mr. Greenberg -- the conversation I had with Mr. Greenberg was reference that Mr. Diana was threatening to complain at the ATF about Mr. Clark. Q. Did Mr. Greenberg express any concern about that? A. Yes. Q. What was the fear of going to ATF? A. Well, the fear for anyone who purchased a gun from Mr. Clark was that Mr. Clark's method of manufacture probably would draw an issue from the ATF. Q. In fact, did Mr. Greenberg play any role in the disagreement between Mr. Diana and Mr. Clark? A. I believe he resolved that situation which eventually was taking the gun and parts from Mr. Clark and having someone else finish it but I wasn't involved in that. Q. You weren't involved in that part but were you made aware of that by Mr. Greenberg? A. I believe I was, yes.
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Q. All right. Let me draw your attention to another discussion you had with Mr. Greenberg involving a MAG58. Can you explain to the jury about that conversation? A. Mr. Greenberg also told me that Mr. Clark was now starting to build MAG58 machine guns as opposed to just the .30 caliber Brownings and they are much more expensive and rare gun in the registry. And his concern, and mine as well, that George was building something that was considerably more high profile and it would draw attention to what George was doing. Q. Who brought that conversation up to you? A. Mr. -- and, again, I don't remember the specific the actual specifics of what Mr. Greenberg did. Q. You didn't bring it up, did you? A. No. Kalish testimony, p. 81-82 line 9-25, 1-24 Not only did Mr. Greenberg participate in the conspiracy by purchasing a firearm from Mr. Clark, but he also assisted Mr. Clark by posting one of his illegally manufactured firearms on the internet. Q. All right. Now, did there come a time where you decided you wanted to sell a 1919 and put it on the Internet to sell it? A. Yes. Q. Did someone assist you in posting that on the Internet? A. Yes. Q. Why did you have to have someone assist you? A. At that time, I didn't really know anything about computers. Q. And you had someone do that? A. Yes. Q. And who was that person who helped you do that? A. It was Mr. Greenberg or Mr. Kalish. I'm not I apologize. I can't remember which one. Q. So it was one of the two? A. Yes, it was. Clark testimony, p. 194, line 13-25, p. 195, line 1-3. Mr. Kalish clarified this by testifying that he was not the one who posted the advertisement on the internet.
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Q. At any time, did you post anything online for Mr. Clark in order to sell his firearms? A. No. Kalish testimony, p. 85, line 8-10. If Mr. Kalish did not post the advertisement on the internet for Mr. Clark then, according to Mr. Clarks testimony, Mr. Greenberg must have posted the advertisement for the sale of the illegally manufactured firearm. Even more evidence that Mr. Greenberg was part of the conspiracy was shown in Mr. Clarks actions after a search warrant was served on his property. Q. When ATF -- ATF is the one who raided your house; is that correct? A. That's correct. Q. And they served a search warrant, didn't they? A. Yes. Q. At the conclusion of that search warrant, did you make any phone calls? A. Yes. Q. Who did you call? A. Everybody who I could get ahold of. Q. Did you call Mr. Greenberg? A. I believe so. Clark testimony, p. 202, line 1-10, pg. 203, line 9-10. Defendant argues that the evidence at trial concerning Mr. Kalish and Mr. Clark washing paperwork was inappropriate and that [b]oth Clark and Kalish testified they did not mention the incidents to Greenberg neither did they request his help or involvement. But this is not completely accurate. Kalish actually testified that he consulted Mr. Greenberg regarding the FNAB. Q. How did you come to possess this Italian FNAB? A. A gentleman walked into my gun shop one day and had it.
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Q. How did you end up with it? A. He wanted to sell it and he actually had a couple of other guns but this was one of them. And he had been in the movie gun business in California and this was a gun that he had somehow acquired that had no paperwork in his business and he just wanted to get rid of it. Q. And did you agree to take it from him? A. Yes. Q. How much did you pay for it? A. I actually traded him two single-action Ruger pistols for it. Q. Now, you said you weren't familiar with it. What did you do once you received it? A. I tried to find out about it but ultimately that evening I took it to Mr. Greenberg's house to show it to him because I knew he knew more about it and had a real complete library and he could look up and find more information about it for me. Q. By "complete library," what are you talking about? What type of -A. A real good firearms library. Q. A firearms library? A. Yes. Q. And did he help you identify that firearm? A. Yes. Q. Did you make it clear to him that this was not registered? A. Yes. Q. Did you explain to him or have a discussion with him about how you might come about making this a registered firearm? A. I mentioned to him that I had that Japanese paperwork for, again, a gun that could never be reassembled or completed and that I was thinking about transferring that paperwork to this gun. Q. And was that an unusual conversation to have with him? A. Probably one I've never had before but probably not totally unusual, no. Kalish Testimony, p.58-59, line 1-25, 1-12. Q. And you told him that you were going to take this, take the paperwork for the Japanese one and run it through George Clark washing the paperwork; correct? A. I don't recall specifically saying that I was going to send that paperwork to George Clark. But I told him that I was going to apply that paperwork to the FNAB. Kalish Testimony, p. 60, line 14-19. Defendants involvement in the conspiracy was far more involved than he has argued. He introduced Mr. Kalish to Mr. Clark, he helped Mr. Clark post one of the
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machineguns on the internet, he provided a parts kit to Mr. Clark for the completion of the machinegun, he purchased a completed Clark machinegun from Kalish to sell to a customer, and he intervened when the conspiracy was at risk of being discovered because of an unhappy customer of Mr. Clark. All of this demonstrates that this was not a simple agreement between Mr. Clark and Mr. Greenberg, but rather an agreement between all the codefendants to manufacture new machineguns, switch the paperwork with properly registered firearms, and deceive ATF into approving the transfers so that they could enter these new machineguns into commerce. He is fully aware of the scope of the conspiracy and his benefit is dependent on the success of the venture. B. Counts 74, 81, and 89 Defendants arguments for a directed verdict as to Counts 74, 81, and 89 exceed the scope of this Courts December 20, 2012 order that limited the pleadings to address the sufficiency of the evidence regarding Count OneConspiracy as it related to Defendant Greenberg. As such, defendants arguments contained in Document 547, page 5, line 12 to page 6, line 3 should be struck. Additionally, this Court previously ruled on the sufficiency of the evidence against the defendant for Counts 74, 81, and 89. Federal Rules of Criminal Procedure, Rule 29(c) requires a defendant to move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict. In his pleading filed February 8, 2013, the defendant has untimely asserted a motion to renew a judgment of acquittal on the December 20, 2012 jury verdict for Counts 74, 81, and 89. Therefore, defendants
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renewed motion on these three counts should be denied as they were previously ruled upon and as untimely. Furthermore, in arguing that the Court should throw out the jurys verdict as to these three counts, the Defendant misstates the law. Defendant argues that It stands to reason if Greenberg did not conspire with Clark to commit an unlawful act he too was not knowingly in possession of an illegal weapon. [Document #547, p. 5, l. 17-19] This argument fails for several reasons. First, the Defendant does not have to know that the possession itself is unlawful, only that he is possessing a machinegun. See United States v. Freed, 401 U.S. 601(1971), Rogers v. U.S., 522 U.S. 252, 258 (1998); United States v. Tagg, 572 F.3d 1320, 1323-1324 (11th Cir. 2009); United States v. Owens, 103 F.3d 953, 955 (11th Cir. 1997); United States v. Mains, 33 F.3d 1222, 1229 (10th Cir. 1994). The defendant in his own testimony acknowledges that he is aware that the Maxim is a machinegun and complains about its reliability. Even if the defendant were correct on the law, there is ample evidence that defendant was aware that the possession of the machinegun was unlawful. Mr. Kalish explained that he told Mr. Greenberg about the Maxim and that it was a Clark style machinegun. Kalish testimony, p. 78, line 1-7. Second, the Maxim that Defendant unlawfully possessed was not produced by Mr. Clark, rather it is a firearm that was produced for Mr. Kalish by Mr. Arnberger. The Defendant purchased the firearm from Mr. Kalish and was told specifically how it was produced. Kalish Testimony, p. 78. So whether or not Mr. Greenberg conspired with Mr.

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Clark, it has no impact on his possession of the Maxim machinegun that he purchased from Mr. Kalish. Lastly, Defendants reference to the shooting at the Sandy Hook Elementary School is an attempt to argue that the jurys verdict is tainted but this allegation is devoid of any relevant facts. During the trial, counsel for Defendant made no objection on this point and indicated that he was satisfied when the Court cautioned the jury that they should not read any accounts of the incident at Sandy Hook. Should this be a valid objection, the remedy would be a new trial, not a dismissal of the case. However, the Defendant had no objection during the trial and gave this Court no opportunity to address any concerns at that time. III. CONCLUSION Defendants Motion for Directed Verdict should be denied. Respectfully submitted this 22nd day of February, 2013. JOHN S. LEONARDO United States Attorney District of Arizona s/James P. Vann JAMES P. VANN Special Assistant U.S. Attorney

Copy of the foregoing served electronically this 22nd day of February, 2013, to: Loyd C. Tate

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