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United States v. Smith

United States District Court, W.D. North Carolina, Asheville Division

June 8, 2018

UNITED STATES OF AMERICA
v.
DENISE ANN SMITH, Defendant.

          ORDER

          DENNIS L. HOWELL, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant's “Ex parte Motion To Enforce Compliance With Subpoena” (# 29). Defendant seeks an order from the undersigned requiring Adam Queen (“Queen”), General Manager for American Tactical and Pawn, Inc. (“American Tactical and Pawn”), to show cause why he should not be held in contempt for failure to comply with a subpoena requiring him to produce to Defense counsel “all forms 4473 collected by American Tactical and Pawn, Inc. for the period of February 18, 2015 through February 17, 2017.” (# 24-1, 25)

         I. Background

         On April 16, 2018, the Court entered an Order (# 30) directing Queen to appear on April 18, 2018, and bring with him all documents outlined in the subpoena (# 30). At the April 18, 2018 hearing, Queen was present, the Government was represented by Assistant United States Attorney John Pritchard, and Defendant was present and represented by her appointed counsel, Eric J. Foster. Also present was Keith M. Cave (“Cave”), Division Counsel for the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).

         At the hearing, Queen appeared without counsel. The Court advised Queen that it would consider appointing counsel to represent him and separate counsel to represent American Tactical and Pawn in the event either, or both, are indigent. Prior to considering the issue of indigency, Queen advised the Court that he had brought the records requested in the subpoena. In particular, the records consisted of seven bankers' boxes of documents. Queen did not actually bring the documents the courtroom, but he had them secured in his vehicle parked near the courthouse.

         Queen stated that the records he had were required to be maintained by American Tactical and Pawn as a federal firearms licensee. The records are not maintained as digital documents, but they are kept as paper documents. Queen advised the Court that he had looked into the cost of photocopying the paper documents, and the approximate cost would be $2, 000.00. Queen stated that pursuant to ATF regulations, American Tactical and Pawn was required to maintain possession of the documents at all times.

         Cave, Division Counsel for the ATF, advised the Court that the information provided by Queen was accurate. Cave further advised the Court that the ATF does not receive or keep the ATF Form 4473. Cave explained that these forms are required to be maintained by the federal firearms licensee and are subject to being inspected by the ATF upon demand.

         II. Discussion

         The following issues are before the Court: (1) the quantity of documents being requested, (2) the reasonableness of the subpoena, and (3) the issue of counsel for Queen and American Tactical and Pawn.

         A. The quantity of documents being requested

         The Court made an inquiry of Queen as to whether or not there was any other form of records that were kept by American Tactical and Pawn, which would show the names of purchasers of firearms that would not be as voluminous as the ATF Form 4473. Queen advised the Court that there was a journal referred to as “Acquisitions and Disbursements” that would show the names and addresses of purchasers of firearms from American Tactical and Pawn. The Court directed Queen, as general manager of American Tactical and Pawn, to send the Court a copy of the Acquisitions and Disbursements Journal of American Tactical and Pawn for the period of thirty (30) business days prior to February 17, 2017, the alleged date of the offense for which Defendant is charged. The Court further directed that Queen to provide copies of the ATF Form 4473 for the period of one week prior to February 17, 2017. It was the intent of the undersigned to conduct an in camera review of these documents. Queen forwarded the documents to the Court as ordered. See (# 32)

         An in camera examination of the ATF Form 4473 documents provided to the Court reveals that ATF Form 4473 is a six-page document that requires a firearm purchaser to record and report their name, address, place of birth, date of birth, social security number, weight, height, sex, race, and ethnicity. Also required to be reported on ATF form 4473 are answers to questions concerning criminal history, use of controlled substances, mental condition, and other personal and private information. An additional question requires the production of a driver's license number for the purchaser, as well as the serial number, make and model of the firearm being purchased, and the price of the firearm. ATF Form 4473 of American Tactical and Pawn for the six (6) business days prior to February 17, 2017, consists of approximately 156 pages.

         An examination of the Acquisitions and Disbursements Journal shows it is a record kept of the type, model, caliber, serial number, the date of sale or acquisition of firearms, and the name and address of any purchaser of a firearm from American Tactical and Pawn. The Acquisitions and Disbursements Journal for the thirty (30) business days prior to February 17, 2017, consists of six pages.

         b. ...


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