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United States v. Putman

United States District Court, E.D. Michigan, Northern Division

May 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON PUTMAN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SPECIFIC PERFORMANCE AND DIRECTING SURREPLY ON GOVERNMENT'S MOTION IN LIMINE

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On the day of the final pre-trial conference, April 10, 2019, the parties each filed a motion. In the morning, the government filed a motion in limine. ECF No. 63. The government seeks to “exclude defense evidence, whether in documentary or testimonial form, offered to suggest to the jury that Brandon Putman was acting lawfully with regards to the auto sear that is the basis of the charges in the current indictment.” The government's position is that, in order to prove knowledge, it must prove that Putman knew the essential characteristic of the drop-in-auto-sear, i.e. that it could be used to convert a semi-automatic firearm into a machinegun. The government contends that it need not prove that Defendant knew of the unregistered status of the firearm nor that he had specific intent to violate the law. Thus, according to the government, any good faith defense is irrelevant unless it negates Brandon Putman's knowledge of the essential characteristic of the drop-in auto sear. The government also argues that a defense of “entrapment by estoppel” should be excluded because it does not negate the Defendant's knowledge of the essential characteristic of the drop-in-auto sear.

         The same afternoon, approximately 30 minutes prior to the final pretrial conference, Defendant filed a “motion for an order requiring the government's specific performance with the terms of a January 22, 2019 pretrial diversion agreement.” ECF No. 64. Defendant contends that he and the government reached an agreement under which Brandon Putman would take and pass a polygraph administered by BATF or FBI polygraph agent and, if he passed, charges would be dismissed, and Defendant would be placed in a pre-trial diversion program. Ephesians 610 (the family owned LLC) would plead guilty to possession of an unregistered firearm, and all adult Putman family members would surrender their FFL and SOT and never again apply for such licenses. The parties apparently understood that, as a condition precedent to the polygraph, Defendant would submit to a proffer interview, which he did.

         During the final pretrial conference, the parties engaged in extensive discussion regarding this motion. The government contended that an implied pre-condition of the polygraph was a “truthful” proffer interview, and they decided that Defendant was not truthful, which entitled them to exit the agreement. Defendant, on the other hand, believed that the sole purpose of the proffer was to pose interview questions to Defendant to determine the inquiry for the subsequent polygraph examination. Moreover, Defendant contends that even if a “truthful proffer” was a condition precedent, it is unenforceable. Defendant argues that whether he was “truthful” is an inherently subjective determination. With no objective criteria to apply, the agreement was illusory because the government would have sole discretion to determine whether the condition precedent was met.

         Another issue raised during the final pretrial conference was that Defendant submitted to a private polygraph examination arranged by his counsel. The government also believed that an implied condition precedent to their agreement was that Defendant not submit to a private polygraph examination prior to being polygraphed by the government's examiner. The government's position is that such private polygraph examinations constitute an improper practice run, which negates the validity of the subsequent government administered polygraph examination. Defense counsel did not agree that there was any implied precondition that the Defendant not submit to a private examination, nor did he agree that any expert would support the notion that private polygraphs undermine the credibility of the government's subsequent polygraph exam. To the contrary, he contends that this is a common practice.

         In sum, Defendant wants the benefit of his bargain. Having submitted to the government's proffer interview, he would like his opportunity to take a polygraph examination administered by the government and, if he passes, enter into a pre-trial diversion agreement (in addition to the other terms of the agreement, as set forth above).

         Defendant also believes that he detrimentally relied on the government's promise when he submitted to the proffer interview by sharing information with the government that he would not have otherwise shared. He also contends that the government breached its agreement not to use the information obtained during that proffer interview for any purpose other than the subsequent government polygraph examination (which never occurred). Defendant believes that the government's motion in limine is supported by information the government learned for the first time during the proffer, such as the Defendant's intention to present certain good faith defenses and/or “entrapment by estoppel.” The government contends that it was long aware of Defendant's intention to assert these defenses, as his counsel indicated as much during previous hearings and/or conferences, and that a June 2018 hearing transcript reflects that the government was already aware of some or all of these defenses prior to the Defendant's proffer interview.

         A brief summary of the facts and the applicable law will be provided, after which the motions will be addressed.

         I.

         The following facts were set forth in the September 11, 2018, order taking the motions for joinder and motions in limine under advisement. ECF No. 42. The facts set forth in that order were derived from the exhibits attached thereto. Former Defendant William Putman operates a firearms business in Caro, MI, which holds a Federal Firearms License (FFL). His son, Defendant Brandon Putman, is also allegedly affiliated with the business. Defendants live in a shared residence along with twenty-six family members.

         According to the Affidavit of ATF Agent Stephen Ross (Agent Ross), in mid-November 2017 Brandon Putman went to Progressive Tool and Machinery in Elkton, MI and asked the shop owner if he could make 10 duplicates of a specific part, which the shop owner suspected to be a drop in-auto sear (“DIAS” or “auto-sear”)[1]. ECF No. 43 at pg. 18-31 (Ross Aff. ISO Warrant). The shop owner then contacted ATF. Id. Agent Ross met with the shop owner in December, 2017, and the shop owner gave Agent Ross the part in question. Id. The part was submitted to the ATF Firearms Technology branch for testing, which confirmed that the part was a DIAS. ECF No. 44. at pg. 2 (Report of Technical Examination). The shop owner gave ATF Brandon Putman's contact information. An undercover ATF Agent, posing as a machinist at the shop, contacted Brandon Putman and had several discussions with him concerning the part he wanted duplicated and the price per duplicate of $100.[2] ECF No. 44 at pg. 74-75, 105-115. (Investigation Reports - Undercover Contacts).

         On February 28, 2018, an Indictment was returned charging Defendant Brandon Putman with one count of knowingly possessing a firearm not registered to him in the National Firearms Registry and Transfer Record, specifically a drop-in auto sear (DIAS), which is a machinegun under 26 U.S.C. §5845(b), in violation of 26 U.S.C. §5861(d). On April 11, 2018, a superseding indictment was returned charging Defendant Brandon Putman with one count of receiving a firearm (DIAS) made in violation of the law, pursuant to 26 U.S.C. §5861(c), one count of knowingly possessing a firearm not registered to him (DIAS) in violation of 26 U.S.C. §5861(d), and one count of knowingly possessing a firearm (DIAS) without a serial number, in violation of 26 U.S.C. §5861(i).

         II.

         A.

         The NFA was originally enacted in 1934.[3] Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons, ” machineguns, and firearm mufflers and silencers.[4]

         The Federal Firearms Act of 1938 (FFA) imposed a federal license requirement on gun manufacturers, importers, and persons in the business of selling firearms. The term federal firearms licensee (FFL) is used to refer to those on whom the license requirement is imposed. “FFL” is also used to refer to the license itself.[5]

         The Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution - the registration requirement imposed on the possessor of an unregistered firearm violated the possessor's privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution.[6] The Haynes decision made the 1934 Act virtually unenforceable.[7]

         Title II amended the NFA to cure the constitutional flaw pointed out in Haynes.[8] First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person.[9] Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration.[10] In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.[11]

         In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.[12] The Act also amended the GCA to prohibit the transfer or possession of machineguns.[13] Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986. Id.

         Section 922(o), Title 18, U.S.C., makes it unlawful to possess or transfer a machinegun, except for transfers to or possession by Federal and State agencies or the transfer or possession of a machinegun lawfully possessed before the effective date of the statute, May 19, 1986. So, machineguns “lawfully possessed” before the effective date are those manufactured before May 19, 1986 and registered in the NFRTR.[14] 18 U.S.C. 922(o) generally makes it unlawful to possess or transfer any machinegun, including a machinegun frame or receiver, manufactured after May 18, 1986. Exceptions are provided for weapons produced by a qualified manufacturer for sale to ...


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