United States v. Ford

550 F.3d 975, 2008 U.S. App. LEXIS 25452, 2008 WL 5173125
Court of Appeals for the Tenth Circuit·Decided December 11, 2008·No. 07-1176·Published·Cited by 26 cases

Opinions

TYMKOVICH, Circuit Judge.

Stan Taran Ford was convicted for illegally selling or possessing a machine gun. Ford’s primary defense at trial was entrapment. After he was convicted, Ford alleged the government failed to produce multiple emails sent between him and the informant. The district court found that three undisclosed emails existed, but denied a post-trial motion to set aside the conviction, concluding that these emails would not have affected the outcome of the trial. We agree with the district court that in light of all the evidence presented at trial, the emails were not sufficiently material to cast doubt on the jury’s verdict.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court’s judgment.

I. Background

Factual Background

Colorado’s Joint Terrorism Task Force (JTTF)1 obtained a tip in late 2003 from Ford’s co-worker Jimmy Hee that Ford was trafficking in automatic weapons and engaging in other suspicious activity. According to the tip, Ford, a Denver firefighter, owned illegal fully-automatic firearms and was attempting to procure sensitive military communications equipment. Ford also allegedly asked Hee about a NATO conference in Colorado Springs and a planned visit by Secretary of Defense Donald Rumsfeld to Fort Carson.

As part of their investigation, the JTTF recruited Keith Heavilin to work as an informant. Heavilin had previously worked as an informant in several other JTTF investigations. Prior to working on this case, Heavilin had also served in the military for twenty-one years and was em[978]*978ployed by the security division of the U.S. Department of Energy for sixteen years.

In February 2004, Heavilin struck up a conversation with Ford at a gun show in Denver, where Ford was an exhibitor. Ford soon perceived Heavilin to be a friend. Over the next year and a half, they had over 100 contacts with each other via phone, email, and in person.

During this time, Ford sold Heavilin three machine guns. The first transaction occurred on April 22, 2005, when Ford sold Heavilin a Sten machine gun. The next transaction occurred several months later, on August 2, 2005, when Ford sold Heavi-lin a H & K machine gun. Finally, on November 21, 2005, Ford sold Heavilin a fully automatic AR-15 machine gun.2

Pretrial Proceedings

Ford was charged with three counts of knowingly transferring or possessing a machine gun, in violation of 18 U.S.C. § 922(o).3 The three counts were based on the April 22, August 2, and November 21 machine gun sales.

Before trial, Ford filed a motion to obtain the government’s case files pursuant to Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). During a hearing on this motion, Ford specifically requested any emails between Heavilin and himself. Ford did not have access to the emails because the government seized his computer when he was arrested. Although the government produced several emails, Ford told the court he believed more emails existed, and this evidence would support his defense. The government responded by stating it was not aware of any additional emails, but it agreed to recheck its records. The prosecution did not provide Ford any additional emails prior to trial.

Entrapment Defense at Trial

At trial, Ford did not deny he sold Heavilin the three machine guns. Instead he argued he had been entrapped by the government.

In support of the entrapment defense, Ford argued Heavilin continuously pressured him over a long period of time to acquire and sell the three machine guns— crimes Ford was otherwise unwilling to commit. In particular, Ford’s counsel highlighted the substantial number of contacts Heavilin initiated with Ford. The attorney summarized these contacts in a spreadsheet presented to the jury, and repeatedly referred to them during trial. For example, in his closing argument counsel stated the following:

This is the exhibit that you have seen, at least the first page, you have seen it a lot. But what you need to focus on for a minute is the sheer number of contacts initiated by Keith Heavilin....
And what is he calling all of these times to do? He is calling all of these times to persuade and talk a man into selling him a gun who told him, no, I don’t sell automatic weapons, I thought you were talking about a semiautomatic weapon, I can’t help you. That is call after call, meeting after meeting, for one purpose only; to make him think you are a friend, and to persuade or talk him into selling you an automatic weapon.

[979]*979R., Vol. XV at 1832-33 (emphasis added). As counsel explained, “This exhibit is a roadmap for entrapment.” Id. at 1835.

Chronology

During the trial, both the prosecution and the defense highlighted the substantial interactions between Ford and Heavilin. From the time they first met on February 7, 2004, to the time of Ford’s arrest, the two communicated by phone, email or in person over one hundred times. Up to the first machine gun sale on April 22, 2005, Heavilin and Ford communicated fifty-nine times. Then, between the April 22 and August 2 transactions, they communicated another twenty-five times. Finally, between the August 2 and November 21 sales, they communicated nineteen times. Most of these communications were by telephone, although they met in person thirteen times and sent seventeen emails.

The following is a chronology describing interactions that occurred after the second sale.4 The bold text reflects information contained in the missing emails. The remaining text is based on the trial record.

8/14/2005 Ford emails Heavilin.

9/21/2005 Heavilin calls Ford, and Ford calls him back seven hours later. Ford tells Heavilin he is worried about something related to the gun show. Ford repeatedly tells Heavilin “I played by the rules a hundred percent, I haven’t done anything wrong.” R., Vol. IX at 165.5

Unspecified time before 10/5/2005 First missing email: Heavilin emails Ford and asks him about a third machine gun.

10/5/2005 Ford sends the following reply to Heavilin6:

Just returned from out of town. Social sounds good. I’ll call you and set something up over next couple of days. Not any good computer7 deals out there right now. I think rising costs are to blame. Just keep watching the big store ad’s [sic] for a sale.

Should be able to call in the next couple of days.

R., Vol. I, Doc. 179 at 16; see also Aplt. Addendum, Exhibit 1.

10/13/2005 Heavilin calls Ford.

10/17/2005 Heavilin calls Ford three times on the same day.

10/18/2005 Ford calls Heavilin and Heavilin calls him back. They decide to meet at the Rocky Flats Lounge. At the Lounge, Heavilin tells Ford the second machine gun he purchased had too much kick and he wanted a smaller caliber gun.

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United States v. Ford, 550 F.3d 975, 2008 U.S. App. LEXIS 25452, 2008 WL 5173125 (10th Cir. 2008).

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