chief needs our help!

i will search the web for pics, and send them to chief thunder (keith baranski) at [url][email protected][/url] asap. i urge you all to render your assistance and do likewise.

although keith/chief is offering you a reward of free mags, i want NO mags in return! i WILL order more of chief's mags and gladly pay for them, despite my already having a shitload of his products.

why, chief is need of help! most of you folks are probably unaware of the man we ak freaks know as "chief thunder". keith baranski is the sole reason america is now flooded with cheap ak kits, inexpensive bulgarin polymer mags and commie web gear at unbelievably low prices. he imported TONS of goods from poland, bulgaria and other former warsaw pact nations.

he also LEGALLY imported THOUSANDS of pmds kalashnikov machineguns. yes THOUSANDS! all legally done thru customs on batf and state department approved form 06's.

and then the fedgov pulled the rug out from under him and trumped up some charges against him. one month ago, keith was convicted, in a federal kangaroo court in st. louis, of 'conspiracy' to illegally import and sell machineguns. last i heard, he was staring 6-8 years in the face.

he is currently out on appeal. the appeal is in need of our research (see below).

a fellow gunner and patriot needs OUR assistance in his ongoing case against the batf and (in)justice department.

please, donate your knowledge and a little of your time to help this man.

it's christmas time. give FREEDOM! the gift that keeps on giving!!

will YOU help?

thank you.

below is the text of chief's email to me.

_______________________________________________


----- Original Message -----
From: Keith Baranski
To: [email protected]
Sent: Wednesday, December 18, 2002 4:20 PM
Subject: Chief here





Bob,
Can you do me a favor......... ask the guys on the boards you are on, if any of them have any pics of any LE Agency - from po dunk dept. to Department of energy, ATF,FBI, Nasa, etc. etc. I'm looking for pics with the following: anything belt fed, anything .50 cal. any M-79/203. If they have any Waco pics, those will work to, if they show the Bradleys, etc. If I do not yet have the pics, and there what I am asking for, I'm handing out 10 AK mags of there choice 7.62, 5.56, 5.45.
Please get on this.

mods, please leave this tacked for 24 hours. thanks, campy

What were the trumped up charges?  Any sites with details about the case?

i'm no web-search wizard...type in the name "keith baranski" or search the records of the st. louis district federal court or however the heck you do that shit. maybe rbad can help here?

try the st. louis newspaper archives. there was artical or two i read in it, also.

a mutual friend of keith's and mine sat thru the trial...and he couldn't tell me what the charges actually were!!! that's how screwed up this case is.

this case resulted in the LARGEST CONFISCATION OF "ILLEGAL" MACHINEGUNS in the history of our country.

read the 'chief thunder' forum of ak-47.net for some more details.

Did the seizure of weapons occur in Kentucky?


What caliber were the guns?

Here's an article in Gun week I found...

[url]http://www.gunweek.com/briefs.html[/url]


Ohio Man Faces Sentence in Machinegun Case

An Ohio man faces a long federal prison stretch for conspiring with two other men, one of whom was a small town police chief in Missouri, to falsify paperwork and import nearly 375 machineguns from Russia, Bulgaria and Poland.

Keith B. Baranski of Hopewell, OH, was convicted for doing business with Missouri resident James Carmi. In October 2000, federal agents raided Carmi’s Lincoln County, MO, residence and confiscated 800 machineguns, according to The St. Louis Post-Dispatch. The guns were imported in 1999 and 2000.

Baranski, a Gulf War veteran, argued in court that the guns were for legitimate sale to law enforcement, but federal prosecutors convinced the court that the machineguns were actually to be sold to Carmi, a convicted felon. Carmi and Baranski had obtained letters from small town police agencies in Missouri and New Mexico as part of their scheme.

One of those was the Farber, MO, Police Department, where Chief Jeff Knipp pleaded guilty last Feb. 6 to one count of knowingly making a false entry on an application to import firearms, the newspaper said. Knipp admitted writing the letter in exchange for getting his own machinegun out of the deal.

Carmi, now in prison for illegally importing firearms and money laundering, claims to have imported thousands of machineguns, and selling only a couple to police agencies. Carmi has earlier convictions for marijuana distribution. He obtained a federal firearms license by using the name of his brother, David. Carmi and his wife then ran the business, calling it Vic’s Gun Corp., out of their home near Elsberry, MO. Carmi met Baranski after Carmi ran an ad in Shotgun News.

The Carmi guy sounds like a real class act [rolleyes]

Lexis Search only came up with this:

Criminal Law & Procedure > Search & Seizure > Search Warrants
HN8 Fed. R. Crim. P. 41(c)(1) provides that after a warrant is executed, it is returned to the issuing magistrate. Rule 41(g) further dictates that the magistrate file with the clerk of the district court for the district in which any property was seized copies of the paperwork connected to the warrant, including any affidavits relied upon in issuing the warrant. These materials, like most judicial records, may then be accessed by the public. In other words, Rule 41(g) provides an administrative framework for the exercise of the common law right of access.  


Criminal Law & Procedure > Search & Seizure > Search Warrants
HN9 See Fed. R. Crim. P. 41(e).  


Criminal Law & Procedure > Search & Seizure > Search Warrants
HN10 A person whose property is seized pursuant to a search warrant, cannot decide whether he/she should make a motion under Fed. R. Crim. P. 41 unless they know the basis upon which the search warrant was issued. To permit an affidavit or any documents in support of a search warrant to remain sealed against examination by the person whose property was searched deprives him of the right secured by Fed. R. Crim. P. 41 to challenge that search. Of course, the right to examine the affidavit is not absolute, and the government may, under certain circumstances, successfully petition the court to keep the affidavit sealed.  


Criminal Law & Procedure > Search & Seizure
HN11 Fed. R. Civ. P. 41(e) states clearly that a person seeking the return of property may move the district court for the district in which the property was seized for its return. There is no reason why only the issuing magistrate would have jurisdiction to hear a Fed. R. Crim. P. 41(e) motion to unseal an affidavit, thus severing it from a companion Fed. R. Crim. P. 41(e) motion for the return of property, which may be heard by the district court.  


Criminal Law & Procedure > Grand Juries > Suppression of Evidence
HN12 Any motion to "suppress" evidence must be made in a proceeding in which the United States seeks to use the evidence.  


Civil Procedure > Remedies > Forfeitures
HN13 Normally, one would use Fed. R. Crim. P. 41(e) to obtain return of property. However, after the government initiates forfeiture proceedings and notifies a claimant of the proceedings, a claimant may no longer use Rule 41(e), but instead must submit to the statutory procedures governing civil forfeiture proceedings.  


Constitutional Law > Procedural Due Process > Eminent Domain & Takings
HN14 The civil forfeiture statute is, in effect, a congressionally approved and constitutionally accepted method by which the government may take property without having to pay compensation to the owner. It is not an exercise of the government's power of eminent domain. A forfeiture action is not subject to a Fifth Amendment takings clause claim.  


Torts > Public Entity Liability > Federal Causes of Action
HN15 It is well settled that the United States as a sovereign is immune from suit unless it has expressly waived such immunity. The Federal Tort Claims Act, 28 U.S.C.S. §§ 1346(b), 2671-2680, waives the sovereign immunity of the United States with respect to tort claims, providing that the United States shall be liable, respecting the provisions of that title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.  


Torts > Public Entity Liability > Federal Causes of Action
HN16 The Federal Tort Claims Act (FTCA), 28 U.S.C.S. §§ 1346(b), 2671-2680, requires that a plaintiff must first exhaust all available administrative remedies before he or she may proceed in federal district court. The failure to file a timely administrative claim under the FTCA bars federal jurisdiction.  


Civil Procedure > Entry of Judgments > Stay of Proceedings & Supersedeas
HN17 The U.S. Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings. In the absence of substantial prejudice to the rights of the parties involved, simultaneous parallel civil and criminal proceedings are unobjectionable under our jurisprudence. A court may, however, exercise its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions when the interests of justice seem to require such action, sometimes at the request of the prosecution, sometimes at the request of the defense.  


Civil Procedure > Entry of Judgments > Stay of Proceedings & Supersedeas
HN18 A court should review a motion to stay a civil suit pending the completion of a parallel criminal proceeding in light of the particular circumstances and competing interests involved in the case. The strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administration action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party's Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Fed. R. Civ. P. 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case. If delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it.  

Civil Procedure > Entry of Judgments > Stay of Proceedings & Supersedeas
HN19 The case for staying civil proceedings is a far weaker one when no indictment has been returned, and no Fifth Amendment privilege is threatened. This is not to say, however, that equally salient concerns are not implicated when the government moves to stay the civil suit of a plaintiff that is presently unindicted, but under active criminal investigation. In these circumstances, the primary concern is not the Fifth Amendment rights of the civil plaintiff - who is, after all, arguing that the court allow dual proceedings - but rather the government's interest in preventing a potential criminal defendant from exploiting the advantages of civil discovery.  



COUNSEL: For KEITH B. BARANSKI, PARS INTERNATIONAL CORPORATION, plaintiffs: Stuart A. Benis, Columbus, OH.
 
For UNKNOWN ATF AGENTS, BRIAN DIXON, MICHAEL R. JOHNSON, DOUGLAS R. DAWSON, MARK S. JAMES, KARL L. STANKOVIC, WILLIAM J. HOOVER, UNITED STATES OF AMERICA, defendants: John E. Kuhn, Jr., AUSA, United States Attorney's Office, Louisville, KY.

JUDGES: JOHN G. HEYBURN II, CHIEF JUDGE, U.S. DISTRICT COURT.

OPINIONBY: JOHN G. HEYBURN II

OPINION:  [*864]  MEMORANDUM OPINION

In April, 2001, federal agents searched a warehouse in Louisville, Kentucky, and seized a large number of firearms. Plaintiffs, two entities affected by the government's actions, correspondingly filed suit against Defendants, twenty one individual agents and the  [**2]  United States, alleging eight causes of action. Defendants have filed a variety of motions, both dispositive and otherwise, all of which Plaintiffs oppose. These motions raise interesting questions about the manner in which one may oppose or challenge government seizure of property. The Court will now consider each motion in turn.

I.

Before ruling on the parties' motions, the Court must initially establish the relevant factual and procedural background of this complex matter. The first plaintiff, Keith Baranski, doing business as Magua Industries ("Magua"), an Ohio sole proprietorship, imports firearms and ammunition. The second plaintiff, Pars International Corporation ("Pars"), a Kentucky corporation, likewise imports firearms and ammunition and also operates a U.S. Customs High Security Bonded Warehouse ("CBW") in Louisville. The first fifteen defendants are Unknown Named Agents of the federal Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Defendants sixteen through twenty one -- Brian Dixon ("Dixon"), Michael R. Johnson ("Johnson"), Douglas R. Dawson ("Dawson"), Mark S. James ("James"), Karl L. Stankovic ("Stankovic"), and William J. Hoover ("Hoover") -- are also agents of  [**3]  the ATF. The final defendant is the United States of America ("United States").

On April 10, 2001, United States Magistrate Judge Cleveland Gambill of the Western District of Kentucky issued to ATF agents a search warrant for Pars' CBW. Judge Gambill further ordered that the affidavit supporting the warrant be sealed. ATF agents executed the warrant  [*865]  the next day, April 11, and seized 372 machine guns and twelve wooden crates containing firearms parts. Plaintiffs maintain that this property had been legally imported into the country, and that the search and seizure were unlawful on a number of grounds.

On June 28, 2001, Plaintiffs filed suit, generally seeking to challenge the seizure of their property and to obtain its return. The first two counts seek relief from the United States. Count One of Plaintiffs' Complaint seeks to unseal the affidavit upon which the search warrant was issued. Count Two seeks both the suppression and return of the weapons. Count Three seeks relief against the individual ATF agents, and has six different parts. Subsection (a) alleges violations of Plaintiffs' Fourth Amendment rights. Subsection (b) alleges violations of Plaintiffs' Fifth Amendment rights.  [**4]  Subsection (c) alleges trespass upon property and chattel. Subsection (d) alleges tortious interference with the prospective business relationship of Magua. Subsection (e) alleges tortious interference with the prospective business relationship of Pars. Subsection (f) alleges defamation.

Defendant United States has filed three motions, which the Court shall consider in the following sequential order: first, a notice of proposed substitution of parties; second, a motion to dismiss; and third, a motion to stay. Plaintiffs have filed an omnibus memorandum in opposition to each of these motions.

II.

The United States proposes that pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, it should be substituted as the sole party defendant to all state law tort claims alleged by Plaintiffs against the individual ATF agents. 28 U.S.C. § 2679(b)(1) provides:
 
HN1The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property . . . arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the  [**5]  scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
 
Furthermore, § 2679(d)(1) provides:
 
HN2Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
 
Finally, pursuant to 28 C.F.R. § 15.3(a), HN3"the U.S. Attorneys are authorized to make the certifications provided for in . . . 28 U.S.C. 2679(d) . . . with respect to civil actions or proceedings brought  [**6]  against Federal employees in their respective districts."

The United States Attorney for the Western District of Kentucky has filed with this Court a certification that defendants Dixon, Johnson, Dawson, James, Stankovic, and Hoover "were acting within the scope of their employment as officers and agents at the time of the allegedly tortious conduct described the complaint."  [*866]  United States' Notice of Proposed Substitution, Ex. 1. Plaintiffs argue, however, that the requested substitution is improper until they have had adequate opportunity to obtain discovery and the Court has held an evidentiary hearing to review the U.S. Attorney's certification decision.

HN4"Whether an employee was acting within the scope of his employment is a question of law, not fact, made in accordance with the law of the state where the conduct occurred." Singleton v. United States, 277 F.3d 864, 870 (6th Cir. 2002) (quoting RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996)). The challenged conduct in this case, the issuance and execution of the search warrant, occurred in Kentucky. HN5In this state, "an act is within the scope of the servant's  [**7]  employment, where such act is necessary to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master." Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81, 83 (Ky. Ct. App. 1946).

This Court finds as a matter of law that to procure and execute a search warrant is within the scope of ATF agents' regular duties. Such acts enforce the criminal laws of the United States. Neither additional discovery nor an evidentiary hearing is needed to make this ruling. HN6A certification decision is "prima facie evidence that the employee was acting within the scope of employment." Singleton, 277 F.3d at 871 (quoting RMI Titanium Co., 78 F.3d at 1143). HN7ATF agents are statutorily authorized to "execute and serve search warrants." 26 U.S.C. § 7608(a)(2). Even if they exceeded their lawful authority, the agents would be acting within the scope of their employment under Kentucky law. See Frederick v. Collins, 378 S.W.2d 617, 619 (Ky. Ct. App. 1964) ("[a] master is subject to liability for the intended tortious  [**8]  harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant") (quoting Restatement (Second) of Agency, § 245). See also RMI Titanium, 78 F.3d at 1143 ("the mere fact that a federal employee's actions may have been unlawful . . . is not enough, by itself, to find that the employee's actions were outside his authority"). No amount of discovery could substantiate Plaintiffs' assertion that the individual agents were not acting within the scope of their employment because it is never in the best interests of the United States for its agents to conduct unlawful searches and seizures. This argument both misstates the applicable standard and would essentially nullify the FTCA.

The Court therefore substitutes the United States as the sole party defendant to Plaintiffs' state law tort claims -- i.e., Count Three, Subsections (c)-(f) -- and dismisses these claims as filed against Defendants Dixon, Johnson, Dawson, James, Stankovic, and Hoover.

III.

The government has also moved to dismiss all claims against the United  [**9]  States. Following the Court's order in supra Part II, this includes Count One, Count Two, and Count Three, Subsections (c)-(f). n1 The Court will address each separately.
 
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n1 Plaintiffs' remaining claims -- Count Three, Subsections (a)-(b) -- are against the individual ATF agents, and are addressed at infra Part IV.
 
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A.

Count One of Plaintiffs' Complaint seeks to unseal the affidavit upon which the  [*867]  search warrant was issued. The United States argues that "the appropriate and accepted practice in the [Sixth] Circuit is to return to the Magistrate Judge when requesting that a warrant be unsealed." Defs.' Reply at 7.

The United States accurately notes that the leading cases discussing the scope of a party's right to access a sealed warrant affidavit -- including two from district courts within the Sixth Circuit -- all involve appellate review of a magistrate's initial denial of a motion to unseal. See In the Matter of Eyecare Physicians of America, 100 F.3d 514, 515-16 (7th Cir. 1996);  [**10]  In re Search Warrant for 2934 Anderson Morris Road, Niles, Ohio 44406, 48 F. Supp. 2d 1082, 1082-83 (N.D. Ohio 1999); In the Matter of the Search of Up North Plastics, Inc., 940 F. Supp. 229, 230 (D. Minn. 1996); In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 297-98 (S.D. Ohio 1995). However, Plaintiffs likewise accurately respond that other cases at least indicate that a district court may hear a motion to unseal brought directly before it. See In the Matter of the Search of 1638 E. 2nd Street, Tulsa, Oklahoma v. United States, 993 F.2d 773, 774 (10th Cir. 1993); In the Matter of the Search of Flower Aviation of Kansas, Inc., 789 F. Supp. 366, 367 (D. Kan. 1992). These latter decisions are, admittedly, from outside of this circuit, and do not unequivocally establish that the district court was reviewing a motion to unseal as a matter of first instance. Nevertheless, the lack of a clear directive on this question counsels that it is, at best, an unsettled issue.

The Court believes that the most useful guidance can be found in the Federal Rules of Criminal Procedure. More specifically,  [**11]  Fed. R. Crim. P. 41 explains the role of magistrates in the search warrant process. HN8Rule 41(c)(1) provides that after a warrant is executed, it is returned to the issuing magistrate. Rule 41(g) further dictates that the magistrate file with the clerk of the district court for the district in which any property was seized copies of the paperwork connected to the warrant, including any affidavits relied upon in issuing the warrant. These materials, like most judicial records, may then be accessed by the public. See Up North Plastics, 940 F. Supp. at 231. In other words, Rule 41(g) "provides an administrative framework for the exercise of the common law right of access." Eyecare Physicians, 100 F.3d at 517.

Plaintiffs do aver that Count One is based upon, inter alia, ". . . provision of the Federal Criminal Rule 41(g), [which] give[s] rise to the presumption of public access to search warrants and their applications." Pls.' Complaint, P 41. But, the most appropriate statutory basis for bringing a motion to unseal an affidavit would appear to be Rule 41(e). See, e.g., 2934 Anderson Morris Road, 48 F. Supp. 2d at 1082; Up North Plastics, 940 F. Supp. at 233.  [**12]  Rule 41(e) provides, in relevant part:
 
HN9[a] person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion.

 
As the court explained in Up North Plastics, "in such cases, the court's decision will almost always depend upon whether the affidavit submitted in support of the warrant application established probable cause . . . ." 940 F. Supp. at 233. However,
 
the affidavit must be seen to be effectively challenged. HN10A person whose property is seized pursuant to a search warrant, cannot decide whether he/she should make a motion under Rule 41  [*868]  unless they know the basis upon which the search warrant was issued. To permit an affidavit or any documents in support of a search warrant to remain sealed against examination by the person whose property was searched deprives him of the right secured by Rule 41 to challenge that search.
 
Id. Of course,  [**13]  the right to examine the affidavit is not absolute, and the government may, under certain circumstances, successfully petition the court to keep the affidavit sealed. Id.

The instant question is whether this Court has jurisdiction to hear Plaintiff's motion before it has first been brought before the issuing magistrate. The plain language of Rule 41(e) would seem to answer that question affirmatively. Other courts have interpreted a motion to unseal an affidavit to naturally accompany a Rule 41(e) motion for the return of property. HN11Rule 41(e) states clearly that a person seeking the return of property "may move the district court for the district in which the property was seized" for its return. This Court can discern no reason why only the issuing magistrate would have jurisdiction to hear a Rule 41(e) motion to unseal an affidavit, thus severing it from a companion Rule 41(e) motion for the return of property, which may be heard by the district court.

B.

Count Two of Plaintiffs' Complaint seeks the return of the property. Plaintiffs' legal foundation is not very clear. They assert a Fourth Amendment claim and then retreat. n2 They assert a Fifth Amendment claim without  [**14]  much support for it.
 
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n2 Plaintiffs sought to suppress the use of the weapons as evidence. They say that the term "suppression," as used in their complaint, "is just another way of requesting that the property seized be returned." Therefore, Plaintiffs are not actually seeking a suppression. HN12Any motion to "suppress" evidence must be made in a proceeding in which the United States seeks to use the evidence.
 
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In response to all these claims, the United States argues that Plaintiffs are not entitled to equitable relief where there is an adequate remedy at law in the civil forfeiture process. The Court agrees. HN13Normally, one would use Fed. R. Crim. P. 41(e) to obtain return of property. However, "after the government initiates forfeiture proceedings and notifies a claimant of the proceedings, a claimant may no longer use Rule 41(e), but instead must submit to the statutory procedures governing civil forfeiture proceedings." United States v. One 1974 Learjet 24D, 191 F.3d 668, 673 (6th Cir. 1999) (citing  [**15]  Shaw v. United States, 891 F.2d 602, 603-04 (6th Cir. 1989)). Plaintiffs do not dispute that the government has filed formal forfeiture proceedings, as well as provided notice of such to Plaintiffs by both letter and publication, as required by § 1607(a). Nor do Plaintiffs dispute that they have filed a claim of ownership in response, and thus are currently contesting the forfeiture.

Plaintiffs' use of the Fifth Amendment is equally unavailing at this point. To the extent Plaintiffs seek return of the property, the appropriate forum is the forfeiture action itself. HN14The civil forfeiture statute is, in effect, a congressionally approved and constitutionally accepted method by which the government may take property without having to pay compensation to the owner. It is not an exercise of the government's power of eminent domain. See United States v. $ 7,999.00 in U.S. Currency, 170 F.3d 843, 845 (8th Cir. 1999). A forfeiture action is not subject to a Fifth Amendment takings clause claim. See Bennis v. Michigan, 516 U.S. 442, 452-53,  [*869]  134 L. Ed. 2d 68, 116 S. Ct. 994 (1996).

In any event, in these circumstances, Plaintiffs may not seek  [**16]  either return of the property or compensation for it, in a separate federal action as set forth in Count Two.

C.

Count Three, Subsections (c)-(f) contain state law claims against the United States for: (c) trespass upon property and chattel, (d) tortious interference with the prospective business relationship of Magua; (e) tortious interference with the prospective business relationship of Pars; and (f) defamation. HN15"It is well settled that the United States as a sovereign is immune from suit unless it has expressly waived such immunity." Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 115 (6th Cir. 1988) (citing United States v. Shaw, 309 U.S. 495, 500-01, 84 L. Ed. 888, 60 S. Ct. 659 (1940)). "The FTCA waives the sovereign immunity of the United States with respect to tort claims, providing that 'the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.'" Singleton, 277 F.3d at 872 (quoting 28 U.S.C. § 2674).

But, HN16the FTCA requires that a plaintiff must  [**17]  first exhaust all available administrative remedies before he or she may proceed in federal district court. See id. (quoting 28 U.S.C. § 2675(a)). "The failure to file a timely administrative claim under the FTCA bars federal jurisdiction . . . ." Id. at 873 (citing Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982)). Plaintiffs have not presented an FTCA claim to the ATF, and, therefore, this Court lacks jurisdiction over these claims at this time.

IV.

Count Three, Subsections (a) and (b) contain claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), against the named and unnamed ATF agents in their individual and personal capacities for alleged violations of Plaintiffs' Fourth and Fifth Amendment rights. The United States has moved on behalf of itself and Defendants Dixon, James, Johnson, Dawson, Stankovic, and Hoover to stay these claims to avoid interfering with the government's ongoing criminal investigation. Plaintiffs oppose this motion on the ground that indefinitely delaying their civil suit will seriously  [**18]  and unfairly harm their interests in the prompt adjudication of their claim.

HN17"The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings." Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (citing Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989); Securities & Exchange Comm'n v. Dresser Indus., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1375 (D.C. Cir. 1980) (en banc), cert. denied, 449 U.S. 993, 66 L. Ed. 2d 289, 101 S. Ct. 529 (1980)). "In the absence of substantial prejudice to the rights of the parties involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our jurisprudence." Dresser, 628 F.2d at 1374. A court may, however, exercise "its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions 'when the interests of justice seem[] to require such action, sometimes at the request of the prosecution, sometimes at the request of the defense.'" Id. (quoting United States v. Kordel, 397 U.S. 1, 12 n.27, 25 L. Ed. 2d 1, 90 S. Ct. 763 (1970)  [**19]  (internal citations omitted)).

[*870]  HN18A court should review a motion to stay a civil suit pending the completion of a parallel criminal proceeding "in light of the particular circumstances and competing interests involved in the case." Keating, 45 F.3d at 324 (quoting Molinaro, 889 F.2d at 902). According to one circuit court:
 
The strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administration action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party's Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case. If delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it.
 
Dresser, 628 F.2d at 1375-76. This analysis obviously assumes two facts not involved in the present case:  [**20]  first, an indictment has already been issued; and second, the criminal defendant is the movant pursuing the stay. At this point in time, Plaintiffs have not been criminally indicted and it is the United States that seeks to stay the civil proceedings.

HN19"The case for staying civil proceedings is 'a far weaker one' when 'no indictment has been returned[, and] no Fifth Amendment privilege is threatened.'" Molinaro, 889 F.2d at 903 (quoting Dresser, 628 F.2d at 1376)). This is not to say, however, that equally salient concerns are not implicated when the government moves to stay the civil suit of a plaintiff that is presently unindicted, but under active criminal investigation. In these circumstances, the primary concern is not the Fifth Amendment rights of the civil plaintiff -- who is, after all, arguing that the court allow dual proceedings -- but rather the government's interest in preventing a potential criminal defendant from exploiting the advantages of civil discovery. See Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962); United States v. Four Contiguous Parcels of Real Property Situated in Louisville, Jefferson County, Kentucky, 864 F. Supp. 652, 654 (W.D. Ky. 1994).  [**21]  

Plaintiffs argue that a stay is unwarranted because without an active and formal prosecution against them, the delay sought by the government is indefinite. They say that this Court's reasoning in an earlier case denying a government motion for a stay of a civil suit applies here with equal force. See Four Contiguous Parcels, 864 F. Supp. at 653 (stating "it is inherently unfair for the United States to seize property and then deny claimant any effective remedy for return of the property"). The Court disagrees. In Four Contiguous Parcels, the government sought to stay civil forfeiture proceedings until after the conclusion of a parallel criminal case, thereby precluding the plaintiff any opportunity to seek the return of its property. The material difference in the present matter is that, as noted above, Plaintiffs may still pursue the return of their property via the civil forfeiture proceedings. The only remedy postponed by staying Plaintiffs' Bivens claims is potential money damages for the ATF agents' allegedly unlawful actions. Plaintiffs' interest in pursuing their Bivens claims is significant. However, the public interest served by maintaining the  [**22]  integrity of a criminal investigation into the possibly unlawful trafficking of hundreds of automatic weapons is for the moment more substantial.

The Court notes that the date of the allegedly unlawful search and seizure of  [*871]  Plaintiffs' property was April 10, 2001, nearly one year ago. Only a limited stay seems warranted at this time. This Court will grant the government's request for a stay of Plaintiffs' Bivens claims for only three months from the date of this order. No later than the conclusion of the stay, the United States shall update the Court of the status of its criminal investigation. At the close of three months the Court will reexamine the issue of allowing Plaintiffs' Bivens claims to proceed.

The Court will enter an order consistent with this Memorandum Opinion.

Defendants have filed a number of motions. The Court has reviewed the memoranda of the parties as well as the exhibits of record. Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that Defendant United States' motion to substitute itself as the sole party defendant to Plaintiffs' state law tort claims (Counts III(c)-(f))  [**23]  is SUSTAINED. The individual Defendants named in those Counts are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant United States' motion to dismiss Count One of Plaintiffs' Complaint is DENIED.

IT IS FURTHER ORDERED that Defendant United States' motion to dismiss Count Two of Plaintiffs' Complaint is SUSTAINED and Count Two is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant United States' motion to dismiss Count Three, Subsections (c)-(f) of Plaintiffs' Complaint is SUSTAINED and those claims are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Count Three, Subsections (a) and (b) are stayed until June 21, 2002. The United States shall file a status report no later than that date.

This 22 day of March, 2002.

JOHN G. HEYBURN II

CHIEF JUDGE, U.S. DISTRICT COURT

1. Money Laundering
2. Importing illegal machineguns
3. Dealing drugs.

Ol' Chief needs to pick better business partners.

Unintended Consequences

Balzac couldn't you have linked all that?

So Paraphrase it for us... Mr. BigShotCityLawyer [:D]

ok...

here's the cliff's notes for those that prefere to spend their time replying to the "would you hit it" posts...

1.keith get form 06's approved in order to import a few thousand machineguns.

2. keith goes to bulgaria a couple of times and imports machineguns (and tons of semiauto guns/kits).

3. customs inspects and releases all shipments (except 5+ million rounds of russian and bulgarian "wasp" ammunition).

4. keith sells most of his guns to tim, at progressive arms (new york)..a c2 dealer.

5. tim goes belly up after his wife forces him to return to his former job in the coast guard.

6. keith sets up shop with vic's guns...unaware that the brother (carni) and his wife have taken over running the c2 sales illegally.

7. feds bust everybody and decide to nail keith to cover up their approval of the imports and for refusing to testify against carni and for refusing to tell who had his guns (prior sales).

8. keith gets crucified in a st. louis federal kangaroo courtroom.


and now, he needs our help. c'mon guys, lend me a hand here.

medicmandan, balzac, realist...thank you much!

keith NEEDS these pictures...part of the fedgov's prosecution was that police depts. do not have and do not need large, belt-fed machineguns.

the prosecution LIED and the dumbass, bought and paid for judge fell for it hook, line and sinker!!!

now, you and i KNOW what the leo's have in their toy boxes!!!

you've seen the m-60 mounted on the apc when they burned that guy out of his house in cali. you've seen waco. you've seen the swat team pics.

from dinky mp-5's to rpg's and apc's...leo's buy some pretty heavy duty hardware.

please, spend a few minutes and search the web for keith.

again. i thank you for your efforts.

city of columbia Missouri...  

[img]http://www.gocolumbiamo.com/Police/Images/star4mp5.jpg[/img]

[url]http://www.gocolumbiamo.com/Police/Department/STAR/startrain.html[/url]

Columbia missouri's police dept....

other pics in URL Above...



[url]http://www.hkpro.com/mp5.htm[/url]

[img]http://www.hkpro.com/image/mp5female.jpg[/img]


[img]http://www.hkpro.com/image/mp5ad.jpg[/img]

Mid-1980s ad that appeared in police trade magazines and related firearms magazines for the MP5 Submachine gun.

well...few responses. so, i put "free mags" in the title hoping i can attract some mercenaries! heheh!

chief specifically needs pics of the 'heavy stuff'...belt-feds.

Related info...

[url]http://www.aberdeennews.com/mld/aberdeennews/news/nation/4647881.htm[/url]

I sent what I could find.

Good luck!

Campy at 1:00am I was up looking for that pic of the Los Angeles Counties Special Enforcement Bureau's armored vehicle with the M60 on a tripod. That was the first thing I thought of. Also the Industry Sheriff Station (Los Angeles County) has been in SWAT Magazine I if remember correctly posing with Barrett .50 cal rifles. I'm going to have to go looking through all my boxes of magazines. I understand he needs credible photos, where you can IDENTIFY that it is a law-enforcement agency. BDU's and face paint in the brush doesn't help.

E-mail sent.

EDIT:  Campy, can you forward to him?  I lost the damn e-mail.  Also, if you could copy me on it, that would be cool.  Thanks.

[email protected]

ok JULY 2002 of SWAT

[url]http://[email protected]/[/url]

that's chief's email addy...and yes, i can forward anything sent to me, gladly.

i don't think many folks understand the railroading keith has suffered on this. loss of his livelehood, confiscation of hundreds of thousands of dollars of legally imported machineguns (importation approved by the depts. of state, commerce and the batf), tens of thousands of dollars in legal fees and worst of all....the very probable loss of 6-8 years of his freedom.

why? because of carmi...a convicted felon that violated every law and procedure in the books while being the person who actually sold the firearms (keith was the importer).

since keith refused to cooperate with investigation, and was rolled over on by carmi (who was coping a plea and will get off lighter than keith [carmi was sentenced to only 4 years, iirc}!

again, my thanks to those of you that are putting in your time to try and help out a fellow LEGAL gunner. in the machinegun community, repercussions are already being felt from this case (see above article).

don't allow one bad apple to take innocent men to jail with him. don't allow one moron to corrupt the entire system. if keith's conviction stands, c2's and sot7's are gonna be hammered.

I'm having a hard time figuring out why Chief didn't tell all on this loser Karmi?  Why did he defend an ex con who is threatening his livelihood????

Campy, I once posted some Galil gunporn. As someone in the thread said, DRT = donut resuce team.

[url]http://www.ar15.com/forums/topic.html?b=1&f=5&t=147222[/url]

edited to change img to url tags. doh!

This months Soldier of fortune has a Cop with a M249 beltfed.....

"I'm having a hard time figuring out why Chief didn't tell all on this loser Karmi?"

it had more to do with than just the scam the carmi's pulled. there was his treatment at the hands of the atf, the raid (15 agents?), his sources in bulgaria, owners of his products, his lawsuits/countersuits against the individual agents (dismissed) and the u.s.a. and his personality, which is resist cooperation as much as possible. all of this, while not illegal, certainly pissed off the fedgov even more.

basically, keith took the rap for for the fedgov's screwup. sound familiar...similar events happened at waco and ruby ridge. while no one was hurt in this case, the principal is still the same. the fedgov approved all of these imports based on "phoney paperwork"??? well...one or two guns and maybe i could believe that. but thousands of machineguns????? nobody legally approves THOUSANDS of machineguns, legally, on form 06's without everybody and his brother-in-law in the government knowing about it. keith certainly tried his best to stay as legal as possible.

Tell him his mail is full !

CampyBOB,
I can't find it on the website but Streicher's lists belt fed H&K's (21's I think) for sale to Law Enforcement agencies in their catalog. It's at the office but I can get it tomorrow and mail it to you if you think that it will help Keith.

Let me know

Karl

boing.

Just a little information about Farber, Missouri.  This is a town of a couple hundred people that had one (1) full time Police Chief and one (1) part time officer.  It now has two (2) part time officers.  From what I know the X-Chief of Farber signed demo letters for several....I mean several full-auto weapons.  While I do not know the exact number, I know it was enough to set off bells at the ATF.  

I will see what I can come up with for pictures.  I may have a few personal ones that I can let someone have.  I am sure they would be better than a picture from a magazine or web photo.

MedCop

BTT

How about a picture of three machineguns that I bought from the police department in a city of 2,250 people? Would those be worth a shit, or only beltfeds?

And why he refused to say to whom he had sold some of these weapons too. Did he NOT do paperwork on them?

[img]http://photos.ar15.com/WS_Content/ImageGallery/IG_LoadImage.asp?iImageUnq=2480[/img]

issat an m82?