And away we go:  I'm going to start with some random stuff.  This FBI agent was convicted in El Paso Texas of dealing firearms without a license.

GOVERNMENT'S SUPPLEMENTAL FILING SUMMARIZING THE GOVERNMENTS EFFORTS TO RECOVER
A VERBATIM TRANSCRIPT FROM THE COURT REPORTERS PROVIDED
ELECTRONIC MEDIA
Comes now the United States of America, by and through the United States Attorney for the Western District of Texas, and files this Government’s Supplemental Filing Summarizing the Governments Efforts to Recover a Verbatim Transcript from the Court Reporters Provided Electronic Media and would show the Court as follows:
Procedural History

In April, 2010, an eight day trial on the merits was held before a jury in the above-styled and numbered matter. The Defendant was found guilty of all six counts in the indictment and thereafter, on August 24, 2010, was sentenced by this Honorable Court to a term of two years imprisonment.

The Defendant has appealed the results of that trial and sentence, filing a Notice of Appeal on September 3, 2010.
On July 6, 2010, and again on November 3, 2010, Defendant filed Transcript Requests.

On December 6, 2010, counsel for the Defendant filed a Motion for Release Pending Appeal. In the Defendant’s Motion counsel alleged that the substitute court reporter who was assigned to record the trial testimony for one day, specifically April 13, 2010, had now discovered that her files

Case 3:09-cr-01867-DB Document 174 Filed 06/02/11 Page 2 of 10
were corrupted and she was unable to produce a verbatim written transcript for that days proceedings. An unsigned letter from the substitute court reporter was attached as an exhibit to the Motion. The substitute court reporter utilized by the Court that day was Anne Mountin, now known as Anne Mountin Clark (hereafter “CLARK”)
On December 3, 2010, the Court’s regular court reporter filed ten volumes of the transcript. The record is complete save and except the verbatim transcript record for that one final day of testimony on April 13, 2010, when the substitute court reporter filled in.

On December 7, 2010, the Court denied the Defendant’s requested relief for release pending appeal, but has continued his self-surrender date on several occasions.
Thereafter, on December 8, 2010, the Government filed a Motion to Preserve the Court Reporters Machine, Electronic Media, Notes and/or Records pursuant to FRAP 11.
The Honorable Court set the Government’s Motion for a hearing on December 22, 2010. The substitute court reporter (CLARK) appeared at the Motion to Preserve, and testified under oath about her efforts to recover the transcript when she received the transcript request. Additionally CLARK provided the Court with the laptop computer she was using on the date of the missing testimony, several forms of electronic optical media (CDs), and her stenography machine.

The Court granted the Government’s requested relief, and ordered the substitute court reporter items be tendered to the Court who then provided to a Special Agent for the Government so the items could be examined to determine if any data from the Court’s proceedings on April 13, 2010, could be recovered.
Summary of Government’s Efforts to Recover a Verbatim Transcript a. Department of Justice - Office of the Inspector General
A Government Agent retrieved the items placed into the possession of the Court on 2

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December 23, 2010. While the Government was completing the process of contracting with a third- party, Kroll Data Recovery, a computer forensic examiner with the Department of Justice - Office of the Inspector General (DOJ-OIG) in Dallas, Texas, attempted to analyze the items to see if any data could be recovered.
The DOJ-OIG examiner first looked at the notebook computer and forensically imaged it using EnCase, a type of computer forensic software used by the FBI, USSS, ICE, IRS, and other law enforcement agencies to recover digital evidence. It was noted that a Linux operating system was installed on the single partition. Keyword searches were conducted for the terms "Shipley", "Benn", "Barrett", and "FBI" in unallocated space with no relevant results found.

Next, the DOJ-OIG examiner had the thumbdrive also forensically imaged using EnCase. Keyword searches were conducted for the terms "Shipley", "Benn", "Barrett", and "FBI" in unallocated space with no relevant results found. However, court transcriptions (not the Shipley case) were found in unallocated space.
The optical media (CD), marked as Exhibit B was also forensically imaged using EnCase. Keyword searches were conducted for the terms "Shipley", "Benn", "Barrett", and "FBI", with only one file coming back positive. A compressed ZIP file labeled "55811.ZIP" contained a single file name "55811.ecl", which appears to be a bill for $150.00 from Rasberry & Associates Certified Court Reporters, in which Anne Mountin worked for one day regarding cause # EP:09-CR-01867, USA v John Thomas Shipley, Honorable David Briones court. The agent forwarded the original compressed ZIP file, uncompressed file, and a text snippet showing the data found. Its important to note that the file labeled "558.ecl" is in a proprietary format that will not be able to be read unless the correct court reporting software is installed, namely Eclipse.
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The optical media (CDs) marked as Exhibits C & D were imaged, although the file system was corrupted. It is unknown how or why the media was corrupted.
The optical media (CD) marked as Exhibit E was visibly scratched. The agent reported that in his opinion, the scratches, in a swirl format, was intentionally done. The DOJ-OIG agent took the optical media (CD) to TLSI Inc. (http://www.tlsi.net), a company specializing in recovering data and evidence. TLSI is frequently utilized by local, state, and federal law enforcement agencies in recovering digital evidence that has been made unreadable. According to an employee of TLSI, it was noted that it appeared as if someone used a caustic chemical (maybe Ajax or Comet) abrasive to make the media unreadable. The unknown chemical had started to make the outside edges of the media brown, and the inside edge had turned brittle, starting to crack. No data could be recovered from Exhibit E.

The items were then returned to the DOJ-OIG case agent, until the arrangements where made with Kroll Data Recovery.
b. Kroll Data Recovery Efforts
Kroll’s efforts were summarized in Exhibit BB offered and admitted into evidence at the Status Conference held on May 25, 2011.
For clarification, it is noted here that Kroll received the items submitted by CLARK on March 10, 2011, after the Government contracting process was completed. The items were examined, with similar results to those of DOJ-OIG forensic examination. The attempts to analyze and /or restore the total hard drive backup of the old laptop used by CLARK was unsuccessful because of the method that Paragon Software uses in taking a digital image requires subsequent reconstruction to be able to utilize all three CDs used for the initial imaging session. Without all three usable optical media (CDs) it is impossible to restore any data. It appears that the single
4
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damaged optical media (CD) is one of the three part series made when the CLARK’S old laptop hard drive was imaged by her spouse.
However, it was determined that there were files saved on one of the optical media (CD), however the owner of the software would need to be contacted because Kroll did not have the software necessary to read the data saved on the media. The saved files were in the Eclipse format (.ecl) owned by another private software company, Advantage Software.
Government Agents next made efforts to contact CLARK because she was the owner and licensee of the proprietary software and Advantage Software informed Government Agents that Advantage would only deal with entities that had purchased their product. When contacted, CLARK cooperated with Government Agents and voluntarily proved written consent permitting Advantage Software in house engineers to speak directly with in house project engineers from Kroll Data Recovery. Advantage Software, the maker of Eclipse, then provided Kroll engineers with the steps required to convert the existing eclipse files saved on the one optical media (CD) into a plain text (plain English) and key word searchable format. A total of 956 files from seven different recording sessions where identified and recovered from a back up optical media (CD) provided by CLARK at the hearing on the Motion to Preserve.
c. Local Efforts to Search Plain Text Files

In addition to the efforts made by Kroll and after the discussion with the proprietary software manufacturer of Eclipse software CLARK agreed to meet with Government Agents and assist in converting all the data files recovered by Kroll on the one available optical media (CD) into plain text. This would permit Government Agents to then search the 956 files by key terms instead of individually opening each and every one.

Analysis determined that over many months CLARK had created the several hundred files 5

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using Advantage Software’s Eclipse stenography software. CLARKS typical procedures were examined and it was determined that in each of the sessions, she tended to re-save everything each time she backed up her system. Thus, while on first blush it looked like there were a large number of files, closer examination reveled numerous duplicated files that were just saved or backed up on different days during different computer sessions.

All the files were recorded to a single optic media (CD). At the request of the Government, and using CLARK’S current functioning laptop with the installed Eclipse software, CLARK demonstrated how to convert a single Eclipse proprietary file to an ASCII text based file.

The Government was then able to determine how to use the Eclipse software to convert all the Eclipse files on the optical media (CD) en masse to ASCII text based files. Once the conversion process was complete, the entire number of ASCII based file collection were transferred to a brand new optic media (CD). Next the Government indexed the entire collection of ASCII text based files and searched them all using key terms and phrases from the trial.

The terms used for searching included Shipley, guns, ATF, and similar terms likely to have been used during the trial, including the names of trial counsel. The only items that resulted in the queries were the invoice CLARK indicated she was able to locate, the bill for the day’s session. No other items that were searched by either CLARK or the Government Agents, either in manually opening files or key word searches yielded any results.

d. Followup Interview of the Substitute Court Reporter
Because of the discovery of the damages optical media (CD) the final step taken by the Government was a followup formal interview of CLARK by Special Agents on May 10, 2011. After being advised that the interview pertained to the missing transcript of the April 13, 2010, CLARK provided the following: CLARK could not offer any explanation as to why the
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transcription from the April 13, 2010, testimony was not contained on any of the electronic media she provided. CLARK explained that she was not the regular court reporter for United States District Judge David Briones and was called to substitute for Judge Briones’ regular court reporter. CLARK said on April 13, 2010, she conducted her business as usual.
Specifically, CLARK said she would have entered the courtroom, plugged in her laptop computer, turned on the computer, and opened her Eclipse transcription software. CLARK recalled seeing text on her computer screen while she was typing the testimony on April 13, 2010. According to CLARK, once she starts typing a document the document automatically saves and CLARK did not understand why the transcript was not contained on the laptop. CLARK believed she had to have seen the transcript at some point, but has no independent recollection of seeing the transcript following the day of testimony on April 13, 2010.
CLARK further explained the only thing she did related to United States v. John Shipley following the day of transcription on April 13, 2010, was to prepare a time billing for the work she had performed. CLARK reiterated information she previously provided in open court on the Motion to Preserve. CLARK said she had been having problems with the laptop she was using at the time of the Shipley trial and had since purchased a new one. CLARK said she gave the old laptop to Harold Clark, her husband, who then replaced the Windows operating system with the Linux operating system. Prior to replacing the operating system CLARK said Harold made a three disc backup of all the information contained on the laptop’s hard drive at the time. Again, CLARK believed the April 13, 2010; transcript should have been contained on the backup discs and laptop.

CLARK denied purposely destroying the testimony from April 13, 2010.

CLARK was shown a photograph of a compact disc labeled Government Exhibit E, which was provided to the Court by CLARK. CLARK was told all the media she provided was examined
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thoroughly and the testimony from April 13, 2010, was not found on any of the media she provided. In addition, CLARK was told Government’s Exhibit E was determined to be intentionally altered. CLARK was shown the photograph, which contained a compact disc with what appeared to be swirl markings, cracks, and discoloration. CLARK acknowledged providing the disc to the court in this condition. CLARK explained that after she was requested to provide the testimony from the April 13, 2010, that she pulled out a singular backup disc Harold had made from her old laptop. The only information CLARK could find relating to the Shipley case was her time billing from the case. Subsequently, CLARK located two of the three compact discs used by Harold to backup her old laptop’s entire hard drive. CLARK further explained that she talked to Harold about not being able to locate the third compact disc and he looked for it. Harold eventually found the disc and determined it contained a large deep scratch. Harold told CLARK that he believed he could refinish the disc and remove the scratch. CLARK referred to Harold as the home’s “computer expert” and allowed him to try to remove the scratch. CLARK reported that Harold proceeded to use a device that moved in a circular motion and a variety of household cleaning solutions to try to remove the scratch to no avail.

CLARK said she never made the court aware of the condition of the Government’s Exhibit E because she was never asked during the hearing about it. The optical media (CD) was submitted in a plastic sleeve during the hearing and not examined in open court.

CLARK was also asked if she had any prior relationships with any of the parties. CLARK acknowledged knowing Marti Jobe, who was one of Shipley’s attorneys. CLARK said she knew Jobe from prior court hearings she has transcribed. CLARK said Jobe also worked with Steve Peters, who was a former boyfriend of CLARK. CLARK reiterated that she was never asked by anyone, to include Jobe and Peters, to destroy or alter the April 13, 2010, trial testimony. CLARK
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realizes how bad circumstances surrounding the missing testimony looks and CLARK volunteered her willingness to take a polygraph examination to prove she did nothing intentionally to the transcript.

Summary
As a result of all the forgoing efforts summarized by the Government, a verbatim transcript of the Court’s proceedings on April 13, 2010, in the above styled and numbered cause is unrecoverable from all the data storage devices proved by CLARK. This conclusion is reached by the Government after employing the use of the best efforts and practices of experts in the field of data recovery who not only examined the media, by interviewed CLARK on her typical day to day practices to determine if the could possibly identify any operator error that might assist them in locating a data file hidden in another location and mis-named or mis-numbered.
Respectfully submitted,

/s/ us attorney

In on 1 in a sure to be epic thread!

I hope '12 goes down as the banner year for firearms owners.

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Need the Cliff's notes on this one.

Sounds like the Govt. didn't want competition down there.

Thats some corrupt shit.

fbi agent sold his personal stash.  one of the guys he sold to i think worked in a prison.  guy that worked in prison's gun somehow ended up in mexico.  they arrested fbi guy for dealing guns without a license.  he was convicted.  court lost part of his transcript.  i posted the motion, from the .gov, telling of the steps they went through to get the 'lost' portion of the transcript.  this case stinks.

he is currently appealing to the 5th circuit.

Thank you! (now to go read through all of that.)

Should have sold the guns directly to the Cartels while working for the ATF and gotten a promotion.  

My circuits fried reading that.

What is the significance of that particular days testimony?

Thanks Nolo!



I guess the TBL didn't work in this case. From your brief description it sounds like this guy is collateral damage from F&F. DOJ needed a quick score to take attention away from them.



 

wait ...what.....how did they prove.....oh nevermind...

This

I really don't know what is going on in the OP.

this

operator error

Always Think Forfeiture

MOTION FOR FINDING OF NEXUS BETWEEN THE OFFENSE OF CONVICTION AND THE PROPERTY NOTICED IN GOVERNMENT’S DEMAND FOR FORFEITURE
TO THE HONORABLE JUDGE OF SAID COURT:

Comes now the United States of America, plaintiff, by and through the United States
Attorney for the Western District of Texas and the undersigned Assistant United States Attorney and makes this Motion for Finding of Nexus Between the Offense of Conviction and the Property Noticed in Government’s Demand for Forfeiture, pursuant to the provisions of Title 18 U.S.C. § 924, through Title 28 U.S.C. § 2461, and Rule 32.2 of the Federal Rules of Criminal Procedure (“Fed. R. Crim. P”), and in support thereof says the following:

On April 14, 2010, a jury found Defendant JOHN THOMAS SHIPLEY guilty of committing the violations of Title 18 U.S.C. § 922(a)(1)(A), Title 18 U.S.C. § 924(a)(1)(A) and Title 18 U.S.C. § 1001(a)(3) as charged in Counts (1) through Count (6) of the Indictment that was filed on or about June 24, 2009.
The United States moves the Court to find that the plaintiff, United States of America has proven by the preponderance of the evidence, by virtue of the evidence presented in the criminal case, that the below property (hereinafter “Subject Personal Property”) were firearms and other
1

Case 3:09-cr-01867-DB Document 66 Filed 04/20/10 Page 2 of 6

property involved in or used in a willful violation of Dealing Firearms Without a License and/or 2) a knowing violation of Causing a Firearms Dealer to Maintain False Records.
Pursuant to Fed.R.Crim.P. 32.2(b)(1)(A) ("As soon as practicable after entering a guilty verdict ... on any count in an indictment ... with regard to which criminal forfeiture is sought, the court shall determine what property is subject to forfeiture under the applicable statute....the court must determine whether the government has established the requisite nexus between the property and the offense").

In support of this Motion the government moves to re-enter all the previous evidence produced during the trial in the instant case. Pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c), all firearms and other property involved in or used in a willful violation of Dealing Firearms Without a License and/or 2) a knowing violation of Causing a Firearms Dealer to Maintain False Records shall be forfeited to the United States.

Plaintiff United States of America moves this court to find by the preponderance of the evidence the requisite nexus between the subject personal property and the offenses of which the defendant was convicted including but not limited to the following:

1. Rifle, MNF: Remington Arms Company, INC., Type: Rifle, Model: 700, Cal: 308, SN:
G6531735;
2. Rifle, MNF: H-S Precision, INC., Type: Rifle, Model: PRO Series 2000 SA, Cal: 308, FIN:
Black, SN: 3094;
3. Handgun, MNF: Glock GMBH, Type: Pistol, Model: 21, Cal: 45, SN: DNR872US
4 Rifle, MNF: Remington Arms Company, INC., Type: Rifle, Model: 700, Cal: 308, FIN:
Black, SN: E6658039
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5. Rifle, MNF: DPMS INC. (Defense Procurement MFG. Services), Type: Rifle , Model: LR- 308, Cal: 308, FIN: Black, SN: 10717;
6. Handgun, MNF: Glock GMBH, Type: Pistol, Model: 36, Cal: 45, SN: DZG207US;
7 Handgun, MNF: Smith & Wesson, Type: Revolver, Model: 686-3, Cal: 357, SN: BNB0549;
8. Handgun, MNF: Glock GMBH, Type: Pistol, Model: 23, Cal: 40, SN: BET894US;
9. Handgun, MNF: Smith & Wesson, Type: Revolver, Model: 27-3, Cal: 357, SN: FBI0971;
10. Handgun, MNF: Springfield Armory, Geneseo, IL, Type: Pistol, Model: 1911-A1, Cal: 45,
FIN: stainless, SN: NM 208816;
11. Handgun, MNF: Kimber, Type: Pistol, Model: Ultra SP II, Cal: 45, FIN: Black, SN:
KUSP0408;
12. Rifle, MNF: Colt, Type: Rifle, Model: AR-15A3, Cal: 223, FIN: Black, SN: LBD001970;
13. Rifle, MNF: DPMS INC. (Defense Procurement MFG. Services), Type: Rifle, Model: LR-
308, Cal: 308, FIN: Black, SN: 6104;
14. Rifle, MNF: Remington Arms Company, INC., Type: Rifle, Model: 700, Cal: 308, FIN:
Black, SN: G6229014;
15. Rifle, MNF: Barrett Firearms MFG CO., Type: Rifle, Model: 82A1, Cal: 50 BMG, FIN:
Black, SN: 20613;
16. Handgun, MNF: Nighthawk Custom, Type: Pistol, Model: Vickers Tactical, Cal: 45, SN:
NC01411;
17. Rifle, MNF: Barrett Firearms MFG CO., Type: Rifle, Model: 82A1NG, Cal: 50 BMG, FIN:
Black, SN: 4974;
18. Silencer:, 1AWC Systems Technology Silencer, Model Thundertrap .30, Serial Number


Case 3:09-cr-01867-DB Document 66 Filed 04/20/10 Page 4 of 6

070564;
19. Ammunition, QTY: 13 rounds, MNF: Remington, Cal: 45;
20. Ammunition, QTY: 6 rounds, MNF: Winchester-Western, Cal: 357;
21. Ammunition, QTY: 14 rounds, MNF: Federal, Cal: 40;
22. Ammunition, QTY: 44 rounds, MNF: Assorted, Cal: 308;
23. Ammunition, QTY: 2,811 rounds, MNF: Assorted, Cal: .50; and
less.

WHEREFORE ALL PREMISES CONSIDERED, the United States of America respectfully moves this Honorable Court to grant its Motion for Finding of Nexus Between the Offenses of Conviction and the Property Noticed in Government’s Demand for Forfeiture by the Preponderance of the Evidence as to defendant JOHN THOMAS SHIPLEY in the instant case.
Respectfully submitted,
.gov

I think what got him in do do is that he bought a Barrett for his attendance to Sniper school, his friend liked it a lot and he decided he really didn't like it so sold it to him, in a short period of time. I also think friend testified that he had actually bought the gun FOR him... to make sure it was a straw purchase.

That is an odd caliber to have the most of.    This case does seem odd, I wonder if it is related in anyway to F&F?

Hey Nolo, do you know what grounds he is appealing on?  Is it the 'lost' evidence?

I bet its the Barretts and all the 50 ammo and who he sold them to that cause the problem.

Taggage

 

That guy had a pretty nice collection.

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Boy inter service rivelry is a real bitch huh?

The 'and less' part makes me think all  ammo not in a firearm was lumped together. That would explain a 223 rifle but no 223 ammo. The individual ammo counts look to be from loaded firearms. 6 rds 357, 14 40, etc.

Great thread Nolo.

What got him is the 280 firearm listings he posted on Gunbroker, the at least 54 guns he bought of which he sold 51 in a short period of time, he was listings guns for sale that he did not own, he was holding himself out to others to get them LE discount guns, etc... I will forward you a copy of the indictment if you would like. Send me an email.

I have it. I just can't copy and paste it. Feel free to paste it in!

Just so you kids know, that weapon was a special run in 1984 to commemorate the 50th anniversary (1934-1984) of the FBI's official USG sanction to carry firearms, hence the FBI prefix serial number. These were only offered to then-current and retired FBI agents.   Although the DOJ Divison of Investigation was founded in 1908, it was not until after the Kansas City Massacre that they received federal authority to carry weapons.





 

It's a scanned image- copy and paste is impossible. Maybe I'll host it.

Damn!

Another light shined on corruption by Nolo.

I'm not done.

Since when it is it illegal to sell firearms you don't want to keep? Seriously- how are they defining his actions as being a dealer? Because he used "gunbroker"?

It looks like he was selling guns he did not own yet.  IE. He placed an ad for a Glock, which he did not possess, and when it sold, on Gunbroker,  he ordered it from a dealer using his LE discount and shipped the gun to the winning bidder.  If I am reading it correctly.

Would this be a good case to get in front of the Supreme Court for anything?  

In on one in a nolo epic thread.

One Glock. It looks from the list, he simply sold off his collection or maybe traded things out- maybe to acquire better firearms. Not sure if anything he did was actually "illegal".

I know John personally. This guy was a gun nut and a family man not to mention a good cop. There is nobody who knows him including people at the gun shops around town who think that he did any of the things he was accused of. I haven't seen him since he was found guilty but this was a good guy. I cannot believe that he did anything but sell his guns FTF or on GB both of which were legal.

That's exactly my point. I see list of eighteen firearms he sold. What constitutes "short period of time"? I've bought guns then sold them weeks later after I decided I didn't like them or wanted something else. Example, bought a pre ban AK, then found a nicer version of the same AK so I sold the previous one off- who cares. Since when do you have to keep every damn firearm you buy? What is the exact statute defining what is "dealing" versus just hobbyist selling off the guns they don't want?

I believe that line was drawn she he sold a gun he did not yet own supposing that's what truly happened.



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IF in fact that's what he did then he's screwed.

I don't think anyone here can actually cite what he did wrong. I don't think he did anything wrong. I think this is just another bullshit case the government created as "precedence" to now say that anyone who sold a couple guns from their personal collection is somehow "dealing". Maybe he ordered the Glock- changed his mind. Other than that- what exactly did he do wrong?

in on 1

This is how they are going to kill gunshows, gunbroker, online equipment exchanges, everything.

did I make it on 1

Duh, they're snitches for ATF doncha know!

While the indictment only tells the Government's side of the story, the actions desribed seem to tell a very distinct story from that of an individual selling a few unwanted guns.

Indictment

I believe that is the list of prop. that the Government is siezing from Mr. Shipley, not an enumeration of items that he sold. His firearms sales grossed $118k- they are forfeiting $7k. That is probably the remainder of his collection.

In on 1

In on 1?

or the guys at Tulsa with huge signs saying "I'm not a FFL so no paperwork"