UNITED STATES DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 7, 2012 

Serial No. 112–152 

Printed for the use of the Committee on the Judiciary 

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Available via the World Wide Web: http://judiciary.house.gov 

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74–504 PDF 2013

UNITED STATES DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 7, 2012 

Serial No. 112–152 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

JUNE 7, 2012 

Page 

OPENING STATEMENTS 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESS 

The Honorable Eric H. Holder, Jr., Attorney General, U.S. Department of 

Justice 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 9 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Member, Committee on the Judiciary ......................................................................................................................... 27

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 41

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Committee on 

the Judiciary ......................................................................................................... 141 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 149 

Material submitted by the Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 247 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 426 

Material submitted by the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 465 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 473 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 513 

Post-Hearing Questions submitted to the Honorable Eric H. Holder, Jr., Attorney General, U.S. Department of Justice ...................................................... 515 

(1) 

UNITED STATES DEPARTMENT OF JUSTICE 

THURSDAY, JUNE 7, 2012 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to call, at 9:39 a.m., in room 2141, 

Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbrenner, Gallegly, Goodlatte, Lungren, Chabot, Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, Gowdy, Ross, Adams, Quayle, 

Conyers, Berman, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Cohen, Johnson, Pierluisi, Quigley, Chu, Deutch and Sa ́nchez. 

Staff Present: (Majority) Travis Norton, Counsel; Holt Lackey, 

Counsel; (Minority) Perry Apelbaum, Staff Director and Chief 

Counsel; Danielle Brown, Counsel; and Aaron Hiller, Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare recesses of the Committee at any time. 

I will recognize myself and then the Ranking Member for an 

opening statement. 

Welcome, Attorney General Holder, to today’s oversight hearing 

of the Department of Justice. 

Regrettably the Obama administration has shown a disregard for 

the Constitution and rule of law in an effort to impose their agenda 

on the American people, and there are many examples. Efforts to 

block congressional inquiries about the Administration’s actions 

undermine the balance of power on which our Nation is founded. 

The Department of Justice still has not provided enough information about Operation Fast and Furious so that the American public 

and Congress can judge who in the Department bears responsibility for the decisions that led to Agent Brian Terry’s death. The 

Justice Department refuses to comply with Congressional subpoenas that may shed light on why this program was authorized 

and who had knowledge of the inappropriate tactics. 

The Department of Justice also has failed to provide relevant information that would have revealed the extent of Justice Kagan’s 

involvement in the development of the Affordable Care Act when 

she was Solicitor General. If she did give counsel on the healthcare 

bill, which was her job, then she should recuse herself rather than 

evaluating the law as a member of the Supreme Court. The Justice 

Department has refused to let us interview her former assistants. 

2 

Neglecting to enforce or defend the law as enacted by Congress 

is another violation of the Administration’s constitutional obligation to the American people. Under this President, the Justice Department has engaged in a pattern of selective enforcement of the 

law in order to advance its own partisan agenda. For instance, the 

Obama administration has sought to prevent State and local authorities from enforcing immigration laws. At the same time, the 

Justice Department has refused to bring cases against sanctuary 

cities that violate Federal law by prohibiting their officials from 

communicating with the Department of Homeland Security about 

illegal immigrants they encounter. Such sanctuary cities directly 

challenge the Federal Government’s authority to enforce immigration laws. The Administration’s unwillingness to uphold immigration laws has led to injuries and even death. 

The Administration refuses to defend the Defense of Marriage 

Act, a law enacted by Congress and signed by then-President Bill 

Clinton. This was a significant piece of legislation that was approved by a vote of 342 to 67 in the House and 85 to 14 in the Senate. Regardless of how one feels about the substance of the bill, the 

Department of Justice has an obligation to defend the laws of the 

land. 

Efforts by the Administration to override election laws enacted 

by States also raise constitutional concerns. Instead of acting to 

prevent voter fraud, the Department of Justice has challenged common-sense voter ID laws that require voters to identify themselves 

before they are allowed to vote. The Department of Justice recently 

moved to block implementation of voter ID laws enacted by legislatures in Texas and South Carolina. The Texas proposal was based 

on a similar law passed by the Indiana Legislature which was 

upheld by the Supreme Court in 2008. The Justice Department’s 

challenge to the law ignores Supreme Court precedent that affirms 

a State’s right to enact laws to protect the integrity of its elections. 

The Department of Justice even threatened to sue Florida for 

trying to remove ineligible non-citizens from its voter rolls. Why 

would the Department of Justice not want States to remove ineligible felons, ineligible non-citizens and the dead from their voter 

rolls? The Administration’s actions aren’t just wrong, they are arrogant, undemocratic and an insult to the rule of law. 

The Administration’s disregard for the Constitution and rule of 

law not only undermines our democracy, it threatens our national 

security. The Justice Department has not taken the initiative to 

prosecute leaks of national security secrets. Recent leaks about a 

foiled bomb plot out of Yemen and a cyberattack against Iran are, 

in the words of Senate Intelligence Chairwoman Dianne Feinstein, 

quote, ‘‘very detrimental, very concerning, and hurt our country,’’ 

end quote. 

The past 31⁄2 years, this Administration has engaged in a pattern 

of obstructionism, unaccountability and partisanship. The American people should have confidence that the Department of Justice 

fairly enforces laws. That confidence is lacking today. This hearing 

will explore how that confidence can be restored. 

That concludes my opening statement, and the gentleman from 

Michigan, the Ranking Member of the Judiciary Committee, is recognized for his. 

3 

Mr. CONYERS. Thank you, Chairman Smith. 

And welcome, Attorney General Holder. 

The opening statement is an opportunity for both of us here to 

set the tone for this hearing, but never in the career of Chairman 

Smith as the Chair of this Committee have I heard so many erroneous statements, and having never heard them before, I can assure him and you that I will be going over his statements and help 

him arrive at a more factual and impartial conclusion. 

Now, having said that, we welcome you once again to the House 

Judiciary Committee. This, by my count, is the eighth time this 

Congress that the Attorney General has made himself available for 

questioning, and this level of access is extraordinary, particularly 

when we compare your record to that of your immediate predecessor. 

Now, with respect to the continuing investigation into Operation 

Fast and Furious, I want to thank you for your patience and diligence. To date, the Department of Justice has provided over 7,600 

pages of documents to the Congress. You made additional law enforcement-sensitive materials available to us in dozens of briefings. 

You have permitted us to question senior Department officials in 

hearing and in transcribed interviews. And you yourself have appeared before this Committee once every 6 months since the controversy became public. I hope that the tone of today’s discussion 

reflects the many courtesies that you and the Department of Justice have shown us in the past months. 

And I also want to commend you and the Department of Justice 

on a series of important accomplishments in the field of civil rights 

and voting rights, a couple of issues that I have paid special attention since I first became a Member of the House Judiciary Committee. 

Enforcing section 5 of the Voting Rights Act. The Department 

has aggressively enforced section 5, which ensures that States with 

a history of discrimination can’t create additional barriers to minority access to the ballot box. The Department has already blocked 

discriminatory voter IDs laws in Texas and South Carolina, and I 

would encourage you to look at other similar troubling laws taking 

effect across the country. 

Stopping illegal purges of the voting rolls. Last week the Voting 

Section wrote to the State of Florida demanding that they cease 

and desist from purging voters from the rolls. The practice was not 

submitted to the Department under section 5 and would not have 

been approved if it had been. 

Protecting the rights of members of the armed services in terms 

of their voting. The Department has secured court orders and consent decrees in 14 jurisdictions to better enforce the Military and 

Overseas Voter Empowerment Act, MOVE. 

Restoring the integrity of the Civil Rights Division. After the Office of the Inspector General and the Office of Professional Responsibility completed their review of illegal, partisan hiring practices 

under another Administration, their final report included recommendations for improved transparent hiring process at the Civil 

Rights Division itself. And under the leadership of Assistant Attorney General Tom Perez, the Division has fully adopted each of 

4 

those recommendations and is now predominantly staffed by attorneys with actual experience in the field of civil rights law. 

Enforcing the Fair Housing Act and the Equal Credit Oppor- tunity Act. The Department’s $335 million settlement with Countrywide Financial last December compensated families who were 

charged higher fees and interest rates because of their race or national origin. This enforcement action makes clear the Department 

will not hesitate to hold financial institutions accountable for lending discrimination. 

There are, of course, areas which we hope the Department will 

improve. But today, 4 years after the worst economic upheaval 

since the Great Depression, we are still looking to hold some of 

those Wall Street barons accountable. And according to one—well, 

let me conclude. My time has ended, and I thank the Chairman. 

And yet what we want to do here today is have a thorough and 

fair discussion. And I am going to ask that our colleagues on this 

Committee conduct themselves in a manner that is worthy of the 

Attorney General’s present appearance here. I thank the Chair, 

and I yield back the balance of my time. 

Mr. SMITH. Thank you, Mr. Conyers. 

Our only witness today is United States Attorney General Eric 

H. Holder, Jr. On February 3, 2009, Attorney General Holder was 

sworn in as the 82nd Attorney General of the United States. 

Attorney General Holder has enjoyed a long career in both the 

public and private sectors. First joining the Department of Justice 

through the Attorney General’s Honors Program in 1976, he became one of the Department’s first attorneys to serve in the newly 

formed Public Integrity Section. He went on to serve as a judge of 

the Superior Court of the District of Columbia and the U.S. Attorney for the District of Columbia. 

In 1997, Mr. Holder was named by President Clinton to be the 

Deputy Attorney General. Prior to becoming Attorney General, Mr. 

Holder was a litigation partner at Covington & Burling, L.L.P., in 

Washington, D.C. 

Mr. Holder, a native of New York City, is a graduate of Columbia 

University and Columbia Law School. 

Mr. Holder, we appreciate your presence today, look forward to 

your testimony, and please begin. 

TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Attorney General HOLDER. Well, good morning, Chairman Smith, 

Ranking Member Conyers, and distinguished Members of this 

Committee. I appreciate the chance to discuss some of the key accomplishments that have distinguished the Department’s work 

throughout this Administration and to outline our plans to build 

upon this particular record of achievement. 

In particular I am proud of the work that has been done by the 

Department’s 116,000 employees, as well as our government and 

law enforcement partners worldwide to help fulfill the promises 

that I made before this very same Committee about 3 years ago. 

Shortly after I became Attorney General, I pledged to strengthen 

the Department’s efforts to protect the American people from terrorism and other national security threats, to ensure that every deVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
5 

cision, and every investigation, and every prosecution would be 

guided by the facts and by the law and by nothing else. I also reaffirmed my commitment to move aggressively to prevent and combat violent crime and financial fraud, to seek justice for victims, to 

protect the most vulnerable among us, to safeguard the environment, and to uphold the civil rights of all of our citizens. 

In each of these areas, the Department has made tremendous 

and, I think, in many case historic progress. Nowhere is this more 

evident than in our national security efforts. In the last 3 years, 

the Department has secured convictions against scores of dangerous terrorists. We have identified and we have stopped multiple 

plots by foreign terrorist groups as well as homegrown extremists, 

and we have strengthened essential surveillance and intelligencegathering capabilities in a manner that is consistent with the rule 

of law and our most treasured values. 

Just last month we secured our seventh conviction in our Article 

III civilian courts in one of the most serious terrorism cases that 

our Nation has faced since 9/11, an al Qaeda-sponsored plot to conduct coordinated suicide bomb attacks in the New York City subway system. And roughly 2 weeks ago, we obtained a guilty verdict 

in the case of a former member of the U.S. Army who intended to 

bomb U.S. soldiers in a restaurant in Killeen, Texas. On the same 

day another Texas man was sentenced to 20 years in prison for attempting to become a part of al Qaeda in the Arabian Peninsula. 

Now, in addition to our national security successes, the Department has made meaningful, measurable strides in protecting Americans from violent crime. Through innovative programs, such as our 

Defending Childhood Initiative and the National Forum on Youth 

Violence Prevention, we developed comprehensive, collaborative approaches to addressing the causes and remedying the consequences 

of violence among and directed toward our Nation’s young people. 

By forging and strengthening partnerships between our United 

States attorneys’ offices and Federal, State, local and tribal, and 

international law enforcement officials, we are combating gun, 

gang and drug-fueled violence more effectively than ever before. 

Alongside key law enforcement allies and our counterparts in Mexico and other countries, we have orchestrated a series of coordinated strikes against violent drug cartels, arresting thousands of 

cartel members and seizing billions of dollars in assets. 

We are also implementing strategic, desperately needed plans to 

address the shocking rates of violence that plague American Indian 

and Alaska Native women through tribal communities. And we are 

using every resource and tool as our disposal, including the power 

of research and scientific analysis, to protect our Nation’s law enforcement community, which in recent years has seen an unfortunate and totally unacceptable rise in the line-of-duty deaths. 

Many of you worked to raise awareness about the tragic fact that 

violence against law enforcement offices is approaching the highest 

level that we have seen in nearly two decades. As Attorney General 

and as the brother of a retired police officer, I am proud that the 

Department has responded to this recent crisis with resolve and 

with robust action. 

Just last week I met with the Major Cities Chiefs Police Association at its summer meeting to discuss the ways we have developed 

6 

and implemented the host of important programs, such as the landmark VALOR Initiative, which is providing our law enforcement 

partners with the latest in training tools and resources, as well as 

the Bulletproof Vest Partnership Program, which has helped more 

than 13,000 jurisdictions purchase lifesaving bullet- and stab-resistant equipment in order to help protect those who risk their 

lives to keep us safe. But simply, our commitment to officers’ safety 

has never been stronger, and as recent achievements prove, the 

same can be said of our resolve to protect American consumers. 

Since the start of this Administration, the Justice Department 

has signaled an unwavering commitment to preventing and combating a wide range of financial and healthcare fraud crimes. We 

have taken bold steps to address the contributing factors and consequences of the recent economic crisis, and this work is paying 

dividends. 

Last year alone the Department’s Consumer Protection Branch, 

working with U.S. Attorneys’ offices across the country, obtained a 

95 percent conviction rate; secured more than $900 million in 

criminal and civil fines, restitution and penalties; and obtained 

sentences totaling more than 130 years of confinement against 

more than 30 individuals. 

In cooperation with our partners at the Department of Housing 

and Urban Development and a bipartisan group of 49 State attorneys general, we achieved a $25 billion settlement with five of the 

Nation’s top mortgage servicers, the largest joint Federal-State settlement in the history of the United States of America. Through 

the efforts of the President’s Financial Fraud Enforcement Task 

Force, which was launched in 2009, we obtained prison sentences 

up to 60 years in a variety of fraud cases, including multimilliondollar Ponzi schemes and the largest hedge fund insider trading 

case in the history of this country. 

We have established two new working groups to enhance civil 

and criminal enforcement of consumer fraud and to bring Federal 

and State authorities together in investigating and prosecuting 

misconduct by financial institutions in the organization, 

securitization and servicing of mortgages that contributed to our financial crisis. And we have continued to make tremendous gains 

in our work to combat healthcare fraud. In fact, over the last fiscal 

year, in cooperation with the Department of Health and Human 

Services and my partner Kathleen Sebelius, by utilizing authorities 

provided under the False Claims Act and other essential statutes, 

we have recovered nearly $4.1 billion in cases involving fraud or in 

Federal healthcare programs. That is the highest amount ever recorded in a single year. And for every dollar that we have spent 

combating healthcare fraud, we have returned on average $7 to the 

U.S. Treasury, the Medicare Trust Fund, and others. 

The Department has also taken crucial steps forward in protecting the most vulnerable members of our society and ensuring 

the civil rights of all of our citizens. Over the past 3 years, our 

Civil Rights Division has filed more criminal civil rights cases than 

ever before, including record numbers of human-trafficking cases, 

in an effort to ensure that in our workplaces and our military 

bases, in our housing and lending markets, in our schools and 

7 

places of worship, in our immigrant communities, and in our voting 

booths the rights of all Americans are protected. 

In addition, we are working to strengthen the rule of law across 

both the country and around the world and beyond our borders establishing the global alliance that is necessary to combat 

transnational organized crime as outlined in the President’s strategy. This includes combating intellectual and financial property 

crimes, child pornography rings, organized criminal networks, and 

criminal facilitation of terrorist activities. And we have partnered 

effectively with Members of Congress to advance important 

changes in policy and legislation, from landmark hate-crimes legislation to the reduction of the unjust and unfair crack/powder cocaine sentencing disparity. 

This work goes on today in our efforts to help ensure the reauthorization of the Violence Against Women Act, a critical law that 

has transformed our Nation’s response to crimes against women 

and enhanced our ability to achieve justice for victims, while holding offenders accountable. It goes on in our strong support for the 

renewal of essential authorities, such as those included in the Foreign Intelligence Surveillance Act amendment of 2008. And it endures in our determination to build upon the extraordinary accomplishments that have defined the past 3 years; to take our fight 

against terrorism, crime, fraud and other threats to a new level. 

I am proud of these and the Department’s many other achievements, and I hope to spend most of our time today discussing how 

we are working to build on this progress. However, I would like to 

briefly address the ongoing investigations into the ATF gun-trafficking operations along the southwest border. 

As a result of concerns raised by ATF agents, we now know of 

several Arizona-based investigations that occurred under this Administration and the previous one where inappropriate tactics were 

used in an attempt to stem the flow of illegal guns across the 

southwest border. Although these law enforcement operations were 

focused on the laudable goal of dismantling illegal gun-trafficking 

networks, they were flawed both in concept and execution. I share 

your concerns about how these operations were developed and how 

they were implemented, and that is why, just as congressional 

leaders have called for answers, I asked the Department’s inspector 

general to conduct a comprehensive investigation as well. 

I also put in place new leadership at ATF, which has taken 

steps, including the implementation of a stricter oversight procedure for all significant investigations, to prohibit the flawed tactics 

employed in these operations. 

Now, many of the key enhancements implemented by the Department are set out in the Deputy Attorney General’s letter to the 

Committee that is dated January 27th of this year. Even since the 

date of that letter, however, we have continued to refine the Title 

III process. For example, our Office of Enforcement Operations now 

requires that before it even accepts a request for a wiretap intercept from a United States attorney’s office, a supervisor in the relevant U.S. Attorney’s office must personally approve that request. 

Now, I would be remiss if I did not point out that the ATF agents 

who testified before Congress have also asked that law enforcement 

be provided with the tools that it needs to effectively combat gun 

8 

trafficking on the southwest border. And I want to reiterate my 

commitment to working with congressional leaders to meet the 

needs of our law enforcement partners and to help address serious 

national security challenges on our borders. 

Finally, I want to make clear that we welcome the recent engagement of congressional leadership in the Department’s continued efforts to satisfy the legitimate goals of congressional oversight, while 

at the same time reserving the integrity and the independence of 

the Department’s ongoing criminal investigations and prosecutions. 

The leadership’s recent letter represented, I think, a promising 

step toward reaching a resolution as it accomplished two things. 

First, it narrowed the universe of documents still in dispute between the Justice Department and the House Oversight Committee. Second, it identified the specific questions that remain of 

concern to leadership. 

We are confident that the constructive discussions that have occurred since this letter can result in a mutually acceptable resolution. In all of these efforts, I am grateful for your continued support, and I would be happy to answer any of the questions that you 

might have. Thank you. 

Mr. SMITH. Thank you, Mr. Attorney General. 

[The prepared statement of Mr. Holder follows:] 

9 


DOJ-1.eps

il:eparlutent of lfustire 

STATEMENT FOR THE RECORD OF 

ERIC H. HOLDER, JR. 

ATTORNEY GENERAL 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 

U.S. HOUSE OF REPRESENTATIVES 

ENTITLED 

"OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE" 

PRESENTED 

JUNE 7,2012 
10 


DOJ-2.eps

Statement of 

Eric H. Holder, Jr. 

Attorney General 

U.S. Department of Justice 

Committee on the Judiciary 

U.S. House of Representatives 

"Oversight of the U.S. Department of Justice" 

June 7, 2012 

Good morning, Chairman Smith, Ranking Member Conyers, and distinguished members 

of the Committee. Thank you for the opportunity to appear before you today - and for your 

continued support of the Justice Department, and the goals that we share. I appreciate the chance 

to discuss some of the key accomplishments that have distinguished the Department's work 

throughout this Administration - and to outline our plans to build upon this record of 

achievement. 

In particular, I am proud of the work that's been done - by the Department's 116,000 

employees, as well as our government and law enforcement partners worldwide - to help fulfill 

the promises that I made before this Committee more than three years ago. Shortly after I 

became Attorney General. I pledged to strengthen the Department's efforts to protect the 

American people from terrorism and other national security threats; and to ensure that every 

decision - and every investigation and prosecution - >vould be guided by the facts and the law. 

also reaffirmed my commitment to move aggressively to prevent and combat violent crime and 

financial fraud, to seek justice for victims, to protect the most vulnerable among us, to safeguard 

the environment, and to uphold the civil rights of all citizens. 

In each of these areas, the Department has made tremendous - and, in many cases, 

historic - progress. Nowhere is this more evident than in our national security efforts. In the last 

three years, the Department has secured convictions against scores of dangerous terrorists. 

We've identified - and stopped - multiple plots by foreign terrorist groups, as well as 

homegrown extremists. And we've strengthened essential surveillance and intelligencegathering capabilities. 

Just last month, we secured our seventh conviction in one of the most serious terrorism 

cases our nation has faced since 91 II: an al-Qaeda-sponsored plot to conduct coordinated suicide 

bomb attacks in the New York subway system. And roughly two weeks ago, we attained a guilty 

verdict in the case of a former mcmber ofthc U.S. Army who intended to bomb U.S. soldiers at a 

restaurant in Killeen, Texas. On the same day, another Texas man was sentenced to 20 years in 

prison for attempting to become part of al-Qaeda in the Arabian Peninsula. 

In addition to our national security successes, the Department has made meaningful, 

measurable strides in protecti ng Americans from violent Clime. Through innovative programs 
11 


DOJ-3.eps

such as our Defending Childhood Initiative and National Forum on Youth Violence Prevention, 

we've developed comprehensive, collaborative approaches to addressing the causes and 

remedying the consequences of violence among, and directed toward, our nation's young people. 

By forging and strengthening partnerships between our United States Attorneys' Offices and 

federal, state, local, tribal, and international law enforcement officials, we're combating b'lm-, 

gang-, and drug-fueled violence more effectively than ever before - and nationwide, the steady 

decline of violent crime rates renect this fact. Alongside key law enforcement allies - and our 

counterparts in Mexico and other countries - we've orchestrated a series of coordinated strikes 

against violent drug cartels, an'esting thousands of cartel members and seizing billions of dollars 

in assets. We're also implementing strategic, desperately-needed plans to address the shocking 

rates of violence that plague Amcricallindian and Alaska Native women throughout tribal 

communities. And we're using every resource and tool at our disposal- including the power of 

research and scientific analysis - to protect our nation's law enforcement community, which - in 

recent years - has seen an unfortunate, and unacceptable, rise in line-of-duty deaths. 

Many of you have worked to raise aW'areness about the tragic fact that violence against 

law enforcement onicers is approaching the highest level we've seen in nearly two decades. As 

Attorney General- and as the brother of a retired police oUicer - I am proud that the Department 

has responded to this recent crisis with resolve and robust action. Just last week, 1 met with the 

Major Cities Police Chiefs Association at its summer meeting to discuss the ways we've 

developed and implemented a host of important programs, such as the landmark VALOR 

Initiative, which is providing our law enforcement pa!1ners with the latest in training, tools, and 

resources - as "veil as the Bulletproof Vest Partnership Program, which has helped more than 

13,000 jurisdictions purchase lifesaving bullet- and stab-resistant equipment - in order to help 

protect those who risk their lives to keep us safe. 

Put simply, our commitment to officer safety has never been stronger. And - as recent 

achievements prove - the same can be said of our resolve to protect American consumers. 

Since the start of this Administration, the Justice Department has signaled an unwavering 

commitment to preventing and combating a wide range of financial and health-care fraud crimes. 

We've taken bold steps to address the contributing factors and consequences of the recent 

economic crisis. And this work is paying dividends. 

Last year alone, the Department's Consumer Protection Branch - working with US. 

Attorneys' Oftlces across the country - attained a 95 percent conviction rate; secured more than 

$900 million in criminal and civil fines, restitution, and penalties; and obtained sentences 

totaling more than 130 years of confinement against more than 30 individuals. In cooperation 

with the Department of Rousing and Urban Development and a bipartisan group of 49 state 

attorneys general, we achieved a $25 billion settlement with five of the nation's top mortgage 

serviccrs - the largest joint federal-state settlement in history. Through the efforts of the 

President's Financial Fraud Enforcement Task Force - which was launched in 2009 - we've 

obtained prison sentences of up to 60 years in a variety of fraud cases - including multimilliondollar Ponzi schemes and the largest hedge-fund insider-trading case in US. history. We've 

established two new Working Groups to enhance civil and criminal enforcement of consumer 

fraud and to bring federal and state authorities together in investigating and prosecuting 

2 
12 


DOJ-4.eps

misconduct by tinancial institutions in the origination, securitization and servicing of mortgages 

that contributed to our financial crisis. And we've continued to make tremendous gains in our 

work to combat health-care fraud. 

In fact over the last fiscal year - in cooperation with the Department of Health and 

Human Services and other partners, and by utilizing authorities provided under the False Claims 

Act and other essential statutes - we recovered nearly $4.1 billion in cases involving fraud on 

federal health-care programs. That's the highest amount ever recovered in a single year. And 

for every dollar we've spent combating health-care fraud, we've returned an average of seven 

dollars to the U.S Treasury, the Medicare Trust Funds, and others. 

The Department also has taken crucial steps forward in protecting the most vulnerable 

members of society - and ensuring the civil rights of all citizens. Over the past three years, our 

Civil Rights Division has filed more criminal civil rights cases than ever before - including 

record numbers of human traftlcking cases - in an effort to ensure that - in our workplaces and 

military bases; in our housing and lending markets; in our schools and places of worship; in our 

immigrant communities and our voting booths - the rights of all Americans are protected. 

In addition, we're working to strengthen the rule oflaw both across the country and 

beyond our borders - establishing the global alliances necessary to combat transnational 

organized crime as outlined in the President's strategy. This includes combating intellectual and 

financial property crimes, child pornography rings, organized criminal networks, and criminal 

facilitation of terrorist activities. And we've partnered effectively with Members of Congress to 

advance important changes in policy and legislation - from landmark hate crimes prevention 

legislation to the reduction of the unjust and unfair crack/powder cocaine sentencing disparity. 

This work goes on today in our efforts to help ensure the reauthorization of the Violence 

Against Women Act - a critical law that has transformed our nation's response to crimes against 

women, and enhanced our ability to achieve justice for victims while holding offenders 

accountable. It goes on in our strong support for the renewal of essential authorities such as those 

included in the Foreign Intelligence Surveillance Act Amendments of2008. And it endures in 

our determination to build upon the extraordinary accomplishments that have defined the past 

three years; to take our fight against terrorism, crime, fraud, and other threats to a new level; and 

to join with members of this Committee in advancing the mission that remains our common 

cause - and making good on our nation's founding promise of equal justice under law. 

I am proud of these and the Department's many other achievements, and I hope to spend 

most of our time today discussing how we are working to build on this progress. However, I 

would like to brietly address the ongoing investigations into A TF gun trafficking operations 

along the Southwest Border. 

As a result of concerns raised by ATF agents we now know of several Arizona-based 

investigations that occurred under this administration and the previous one where inappropriate 

tactics were used in an attempt to stem the flow of illegal guns across the Southwest Border. 

Although these law enforcement operations - which include Wide Receiver, Medrano, 

Hernandez, Fast and Furious, and others - were focused on the laudable goal of dismantling 

3 
13 

Mr. SMITH. Let me remind Members that the Attorney General 

is with us until 1:30 this afternoon, and in order for all 40 Members of the Committee to be able to make comments and ask questions, we are going to need to adhere strictly to the 5-minute rule. 

And I will recognize myself for questions. 


DOJ-5.eps

illegal gun trafficking networks, they were flawed in both concept and execution. 1 share your 

concerns about how these operations were developed and implemented. That's why - just as 

Congressional leaders have called for answers -1 asked the Department's Inspector General to 

conduct a comprehensive investigation as well. 

1 also put in place new leadership at ATF, which has taken steps - including the 

implementation of stricter oversight procedures for all significant investigations - to prohibit the 

flawed tactics employed in these operations. Many of the key enhancements implemented by the 

Department are set out in the Deputy Attorney General's letter to the Committee dated January 

27,2012. Even since the date of that letter, however, we have continued to refine the Title III 

process. For example, our Office of Enforcement Operations now requires that, before it even 

accepts a request for a wiretap intercept from a United States Attorney's Office, a supervisor in 

the relevant United States Attorney's Office must personally approve that request. 

1 would be remiss if! did not point out that the ATF agents who testified before Congress 

also have asked that law enforcement be provided with the tools it needs to effectively combat 

gun trafficking on the Southwest Border. And 1 want to reiterate my commitment to working 

with Congressional leaders to meet the needs of our law enforcement partners - and to help 

address serious national security challenges on our borders. 

Finally, I want to make clear that we welcome the recent engagement of Congressional 

leadership in the Department's continued efforts to satisfy the legitimate goals of Congressional 

oversight while, at the same time, preserving the integrity and independence of the Department's 

ongoing criminal investigations and prosecutions. Leadership's recent letter represented a 

promising step toward reaching a resolution, as it accomplished two things: fIrst, it narrowed the 

universe of documents still in dispute between the Justice Department and the House Oversight 

Committee; second, it identified the specific questions that remain of concern to Leadership. We 

are confIdent that the constructive discussions that have occurred since this letter will result in a 

mutually acceptable resolution. 

In all of these efforts, 1 am grateful for your continued support. 1 look forward to 

working with each one of you. And I would be happy to answer any questions you may have. 

4 
14 

Mr. Attorney General, the Foreign Intelligence Surveillance Act 

amendments, which help protect our country from terrorists, expires the end of this year. Do you support the extension of those 

amendments? 

Attorney General HOLDER. We do support them. It is the most 

important legislative concern of the Intelligence Community, and 

we hope that Congress will pass that reauthorization before the expiration at the end of the year. 

Mr. SMITH. Okay. Now, let me go to Operation Fast and Furious 

you mentioned in your testimony. Mr. Attorney General, who is the 

highest-level official in this Administration who knew that these 

tactics were being used? And I am talking about knew the tactics 

were being used before the death of Agent Brian Terry on December 15, 2010. 

Attorney General HOLDER. Well, we know that the operation 

began in the field office in Arizona, both the U.S. Attorney’s office 

and in the ATF office there. The inspector general is in the process 

of examining the way in which—— 

Mr. SMITH. To your knowledge, who was the highest-ranking official in the Administration who knew about the tactics? 

Attorney General HOLDER. At this point I can say that it started 

in Arizona, and I am not at all certain who beyond that can be said 

to have been involved with regard to the use—now, there was 

knowledge of it, but with regard to the use of the tactics, I certainly don’t—— 

Mr. SMITH. No one other than ATF officials in Arizona, you are 

saying, knew about the tactics used in Operation Fast and Furious 

before December 15, 2010; is that right? 

Attorney General HOLDER. I think that in terms of knowledge of 

the tactics as opposed to the operation itself, I don’t think that anybody in Washington knew about those tactics until the beginning 

of—— 

Mr. SMITH. Speaking of those tactics, when were you first told or 

became knowledgeable about U.S. officials allowing firearms to be 

sold to the drug cartels in Mexico? And I would like a specific date, 

if you can give it to us. 

Attorney General HOLDER. I don’t have a specific date. I got a 

letter from Senator Grassley at the end of January of 2011. I think 

I became aware of tactics themselves probably in February of 2011, 

as I have indicated in the seven previous times that I have testified. 

Mr. SMITH. Okay. And it wasn’t until that letter from Senator 

Grassley that you knew about the firearms being allowed to be 

transferred to the drugs cartels in Mexico. 

Attorney General HOLDER. No, it was not in the letter. The letter 

directed my attention to the area that ultimately led to my understanding about the tactics. But the letter itself did not mention Operation Fast and Furious. 

Mr. SMITH. Okay. And so once again, when did you learn about 

the tactics that were being used? 

Attorney General HOLDER. As I said, the early part of 2011. 

Mr. SMITH. Okay. And that was immediately after—several 

weeks after the death of Brian Terry? 

Attorney General HOLDER. That happened in December 2010. 

15 

Mr. SMITH. Okay. And is that the same date that you found out 

that these firearms that were connected to Fast and Furious were 

found at the murder scene of Brian Terry, or did you find out about 

that before? 

Attorney General HOLDER. I don’t know when I found out 

about—I don’t remember when I found out about that particular 

fact. I would guess it would also be sometime in the early part of 

2011. 

Mr. SMITH. Why was it do you think that individuals who worked 

for you who were in this Administration would not have made it 

known to you or others outside of Arizona that firearms that were 

allowed to be given to drug cartels in Mexico by U.S. officials? Why 

did it take so long for you to learn or for others to tell you? Was 

there a coverup going on, or what was the explanation for you in 

your position not knowing more about the tactics? 

Attorney General HOLDER. Well, I think the answer is found in 

your question. No one knew about the tactics at the time of that 

initial discovery. It wasn’t until the tactics were discovered that 

people started to understand that we had a problem here. But for 

those tactics, Fast and Furious was a midlevel regional investigation that from all reports was going on pretty successfully. 

Mr. SMITH. But again, you didn’t find out about those tactics 

until, say, 6 weeks or 2 months after the death of Brian Terry; is 

that correct? 

Attorney General HOLDER. Sometime in February. I think Agent 

Terry was killed December 10th or 14th, I believe, of December. 

Mr. SMITH. When was anyone in the White House first informed 

about the tactics that were used under Operation Fast and Furious? 

Attorney General HOLDER. I don’t know. 

Mr. SMITH. Did you yourself not inform anyone in the White 

House about Operation Fast and Furious? 

Attorney General HOLDER. I am sure there was contact between 

staff, and the Justice Department probably, and the appropriate 

people in the White House about Fast and Furious. I don’t remember myself ever sharing that information with—— 

Mr. SMITH. How would anyone in the White House have learned 

about it, and who would have learned about it under the normal 

chain of command? 

Attorney General HOLDER. I am sorry? 

Mr. SMITH. How would the White House have learned about Operation Fast and Furious if not from you? 

Attorney General HOLDER. Well, through my staff and the interactions that we have with the White House Counsel’s Office. That 

is the nature of—— 

Mr. SMITH. When did your staff inform the White House about 

Operation Fast and Furious? 

Attorney General HOLDER. I don’t know. 

Mr. SMITH. Were you ever curious about that? 

Attorney General HOLDER. My focus was on dealing with the 

problems associated with Fast and Furious. 

Mr. SMITH. It seems to me that you would want to know—would 

want White House officials to know what was going on in order to 

correct the problem. 

16 

My time—— 

Attorney General HOLDER. My focus was on the tactics and trying to solve the problem, and not awfully concerned about what the 

knowledge was in the White House. That is my responsibility. 

Mr. SMITH. I understand, but I still think the White House would 

have been informed. 

Thank you, Mr. Holder. 

The gentleman from Michigan Mr. Conyers, the Ranking Member, is recognized for his questioning. 

Mr. CONYERS. Thank you, Chairman Smith. 

Attorney General Holder, would you pull your mic up just a little 

bit closer, please? 

You have made reference to the ATF Multiple Sales Reporting 

program for certain types of rifles in States along the southwest 

border. This rule is intended to get at the real problem of gun violence on the border of Mexico. In your view, has the program been 

effective? Have we been stopping guns and saving lives? 

Attorney General HOLDER. Yeah. The rule simply says that for 

the multiple sale of certain kinds of weapons, including AK-47s, if 

somebody buys more than one over the space of 5 days in four border States, that that information has to be reported to the ATF. 

That has led to actionable leads. It is a very measured, responsible 

regulation that has been upheld by a court that has considered it 

and said that it is appropriate. And it is also totally consistent with 

what we do right now and have for the last 30 years with regard 

to the sale of multiple handguns. 

Mr. CONYERS. And by the way, I think we repealed the assault 

weapon ban, and that has led to a proliferation of weapons that I 

think we need to take another look at here in our Legislature. 

Let us talk about the Mortgage Fraud Task Force of the President and how it is coming along. You know the effect this has had 

in our economy and on foreclosures and on families from one end 

of the country to the other. How is your staffing and resources picture in this context? 

Attorney General HOLDER. Well, I think we are doing pretty well. 

We have about, I think, 100 people or so who are presently involved in that task force. Subpoenas have been sent out; investigations are under way. We are working, I think, very effectively with 

a number of U.S. Attorneys as well as our partners on the State 

side, I think principally the attorney general from New York, Eric 

Schneiderman, as well as other State attorney generals. So I think 

the progress we are making there is very good. 

Mr. CONYERS. Thank you. 

In 2009, you created a working group to review the Department’s 

profiling guidance that came out in 2003 under then-Attorney General Ashcroft. In April of this year, 64 Members of Congress wrote 

to urge you to revise that guidance. What is the status of the working group? And are there going to be changes to the guidance? And 

if you can, what would some of those changes be? 

Attorney General HOLDER. We are in the process of looking at 

that earlier policy and seeing if in light of experience there are 

changes that need to be made. I had a meeting concerning this 

issue, I think, over the last 2 weeks. It would be my expectation 

17 

that to the extent that changes are to be made, that those would 

happen relatively soon. 

We are certainly working within the Justice Department, then I 

suspect we will have to have an interagency group, because there 

are a number of agencies whose equities are implicated by the prospective change. But it is something that we continue to look at 

and something in which I have been personally involved over the 

last 2 to 3 weeks. 

Mr. CONYERS. And what was the goal of the so-called profiling 

guidance? 

Attorney General HOLDER. Well, to try to make sure that we did 

not hamper law enforcement, but at the same time that we had in 

place rules, regulations, guidance to those in law enforcement that 

did not—so that we did not engage in racial profiling, which is simply bad law enforcement. 

If one looks at al Qaeda, they understand that if we engage in 

profiling, they will be more successful. They look for—and this has 

been reported—people, as they call it, with clean skin, people who 

do not fit a particular profile. Those are the ones who they are trying to send to harm this Nation, and that is why profiling certainly 

in the national security context as well as, I would say, with regard 

to domestic law enforcement is such a bad idea. 

Mr. CONYERS. Let me squeeze in my last question. Can you talk 

a little bit about the charges of selective enforcement of immigration law? I don’t know if you have heard of any of those kinds of 

complaints, but can you respond to that for me, please? 

Attorney General HOLDER. Selective immigration? 

Mr. CONYERS. Selection enforcement of immigration law. 

Attorney General HOLDER. You mean, by the Federal Government or—— 

Mr. CONYERS. The Arizona law and other—— 

Attorney General HOLDER. The States. 

Mr. CONYERS. At the State level. 

If I can finish this question, Mr. Chairman. 

Mr. SMITH. Please, answer the question. 

Attorney General HOLDER. We have filed suit against immigration laws that have been passed by a variety of States. The Supreme Court has obviously heard argument in connection with the 

Arizona law. 

The concern that we have is that this is inherently a Federal responsibility, and that if we allow these State laws to proliferate, we 

will have a patchwork of laws that will make ultimate enforcement 

of our immigration laws impossible. 

Having said that, I understand the frustration that many States 

feel. I think it points out the need for a comprehensive solution to 

this problem. 

Mr. CONYERS. Thank you very much. 

Mr. SMITH. Thank you, Mr. Conyers. 

The gentleman from Wisconsin Mr. Sensenbrenner is recognized 

for his questions. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

Mr. Attorney General, I do want to echo Mr. Conyers’ commendation of you for coming before us on a very regular basis. I know 

it takes a lot of your time to prepare. I also know that you don’t 

18 

know what is going to get thrown at you, and sometimes there will 

be curveballs and beanballs. I hope mine is a curveball. 

I want to talk a little bit about the Florida voter registration 

case. And it appeared in The New York Times yesterday, there was 

an article there about the State defending its search for ineligible 

voters. And Secretary of State Ken Detzner of Florida has sent a 

letter to Mr. Herren of the Voting Section of the Civil Rights Division talking about the problem. And the problem is simply this, 

and that is as Florida is trying to purge its voter registration rolls 

of noncitizens, including illegal immigrants, people who are clearly 

not eligible to vote, and the Department of Homeland Security has 

had a 9-month delay in giving the national voter registration laws 

to the State, and now Mr. Herren appears to be taking the position 

that Florida can’t do anything after the Federal Government has 

delayed giving Florida the information that it needs to do. What 

can be done to solve this problem? 

Attorney General HOLDER. Well, the problem with the Florida effort is that it runs counter to the National Voter Registration Act, 

which says you can’t do this within 90 days of an election. You can 

successfully do that which Florida is trying to do as has been done 

and has been approved by the Justice Department in North Carolina and Georgia. They did it the right way. 

The database that I think Florida is requesting is not necessarily 

the answer to these problems. That database, as I understand it, 

which is a DHS database, does not contain on its rolls or within 

that database people who were born in the United States. That 

database will therefore be flawed and could result in the exclusion 

of people from voting who are native-born Americans. 

Mr. SENSENBRENNER. Well, the State of Florida has attempted to 

obtain this database for 9 months so that it could do its thing prior 

to the 90-day shutoff in the national voter registration law. And I 

have a copy of the letter from Secretary of State Detzner that talks 

about the due process protections, such as a notification by certified 

mail; return receipt; 30 days to respond; hearing if requested; if the 

mail notice is returned as undeliverable, then the names and addresses appear in a newspaper of general circulation; an additional 

30 days, at the conclusion of the notice-and-hearing process, the 

registrar is supposed to make a final determination based upon the 

preponderance of the evidence and allow for an appeal of any determination of ineligibility to a State circuit court. 

Now, you know, this is probably due process times 3 or 4, maybe 

even 5 times. I would like to know what rights do noncitizens, and 

particularly illegal immigrants, you know, have to the protection of 

the Voting Rights Act and the National Voter Registration Act? 

Attorney General HOLDER. They have no rights, and I stand with 

any State official, Federal official who wants to make sure that our 

voting system is done in an appropriate way, and that people who 

are not allowed to vote in fact do not vote. 

But as a result of the way in which Florida has carried this out, 

I saw a report that an election official in southern Florida indicated 

that about 450 people on the list that—I believe it was a woman— 

that she got were indicated to be people who were not eligible to 

vote, who, in fact, were eligible to vote, and I think that points out 

the problem in the process that Florida is engaged in. 

19 

Mr. SENSENBRENNER. With all due respect, Mr. Attorney General, there is a problem. And any ineligible voter or fraudulent 

voter who has a ballot placed in the same ballot box as hundreds 

of legitimate voters ends up diluting the votes of the legitimate voters, and the Federal law is very clear on that. 

And, you know, here the Department of Homeland Security 

hasn’t given Florida the means to start the process out with all of 

these protections that I have just listed. And it seems to me that 

if your job is to uphold the law, you know, the law sets out a process to give the States time to do this, but we have another agency 

of the government that you are supposed to be advising as Attorney 

General that has prevented the State of Florida from doing this. 

Attorney General HOLDER. I would say I respectfully disagree, 

and I point to you, as I said, other States that have—I don’t know 

all the ways in which they did it, but who successfully have implemented a policy that I would agree with. I don’t think we should 

have people who don’t have the ability, who don’t have the right 

to vote casting votes in our Nation. North Carolina, Georgia did it. 

Mr. SENSENBRENNER. Well, then, please help Florida to do it, because apparently there has been a roadblock here in Washington. 

And my time is up. 

Mr. SMITH. Thank you, Mr. Sensenbrenner. 

The gentleman from New York Mr. Nadler is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Attorney General, we have made several requests to you to 

allow us to review the Office of Legal Counsel memo that reportedly provides the legal justification for the lethal targeting of U.S. 

citizens who are terror suspects. The Department has sought dismissal of cases seeking judicial review of lethal targeting by arguing, among other things, that the appropriate check on executive 

branch conduct here is Congress, and that information is being 

shared with Congress to make that check a meaningful one. Yet we 

have yet to get any response to our request. Will you commit to 

providing that memo to us and to providing a briefing? 

Attorney General HOLDER. We certainly want to provide information to the extent that we can with regard to the process that we 

use in selecting targets. I gave a speech at Northwestern University. Mr. Brennan gave a speech here, I believe—— 

Mr. NADLER. Excuse me. Will you commit to providing a copy of 

the briefing—a copy of the legal memo from OLC? 

Attorney General HOLDER. We will certainly look at that request 

and try to determine whether—— 

Mr. NADLER. And a briefing to the Members of this Committee? 

Attorney General HOLDER. And we will certainly consider the 

possibility of a briefing. 

Mr. NADLER. The possibility? You won’t commit to giving a briefing to this Committee? 

Attorney General HOLDER. I think that we are going to probably 

be in a position to provide a briefing, but I would like to hear from 

the involved people in the Intelligence Community as well as people at OLC about how we might structure—— 

Mr. NADLER. You will get back to us on that within, let us say, 

a month? 

Attorney General HOLDER. We can do that. 

20 

Mr. NADLER. Thank you. 

When running for President and talking about medical marijuana being legally used around the country in certain jurisdictions, President Obama said the following, quote: ‘‘I am not going 

to be using Justice Department resources to try to circumvent 

State laws on this issue,’’ closed quote. Apparently the Department 

has not followed the President’s admonition. Since 2009, DOJ has 

conducted around 200 raids on medical marijuana dispensaries and 

growers and brought more than 60 indictments. It is my understanding that the Department has a more aggressive record on 

prosecuting these cases in this Administration than under the previous Administration. 

The President clearly did not want to prioritize prosecutions involving medical marijuana. And while I understand selling and 

possessing marijuana remains against Federal law, the citizens of 

17 States and the District of Columbia believe its medical use 

should be legal. 

Given these facts, why is DOJ focused so extensively on investigating and punishing those who legally grow and sell marijuana 

legally under local law, contrary to the apparent intent of what the 

President said on this subject? 

Attorney General HOLDER. See, this is inconsistent with these little things called the facts. The Justice Department indicated in a 

memo that went out by the Deputy—then-Deputy Attorney General 

that we were not going to use the limited resources that we have 

to go after people who are acting in conformity with State law, people who had serious illnesses, people who were acting, as I said, 

consistent with State law. 

But one has to deal with the reality that there are certain people 

who took advantage of these State laws and a different policy that 

this Administration announced than the previous Administration 

had, and have come up with ways in which they are taking advantage of these State laws and going beyond that which the States 

have authorized. Those are the only cases that we—— 

Mr. NADLER. So you are saying that you are not targeting people 

who are growing and distributing marijuana only for medical purposes and following the applicable State law? 

Attorney General HOLDER. Yes. We limit our enforcement efforts 

to those individuals, organizations that are acting out of conformity 

with State laws, or, in the case of instances in Colorado, where distribution centers were placed within close proximity to schools. 

Mr. NADLER. Okay. On September 23, 2009, you issued a memo 

setting forth policies and procedures governing the executive 

branch’s invocation of the state secrets privilege. That policy requires your personal approval for the Department to defend assertion of the privilege in litigation. In how many cases since September of 2009 have approved personally invocation of the privilege? 

Attorney General HOLDER. I would have to look at that. There 

have not been many. I think one, two, three, something along those 

lines. I am not sure. 

Now, those numbers get skewed a little bit because in the second 

circuit, in order to use the SEPA statute, the second circuit has a 

21 

rule that says we have to invoke the state’s privilege, but I don’t 

think that is the same—— 

Mr. NADLER. I have a number of other more specific questions on 

this that I am going to submit to you, but I see I am coming to 

my end of time, so I have one further question on this. 

You do not indicate in this policy whether the Administration 

will agree to judicial review of the basis for invoking the privilege. 

The prior Administration took the position that information could 

not even be disclosed in camera to an Article III judge, thus ensuring that there was no judicial review of whether the privilege was 

being properly invoked. 

What is your position as to judicial review of the information 

that the government seeks to withhold in two key respects: One, 

can a judge review the allegedly privileged information; and two, 

can the judge disagree with the executive branch’s decision as to 

whether the privilege is properly invoked? 

Attorney General HOLDER. Well, I think that we have shared information with Article III judges, but the way in which the privilege is set out, it is, I think, at the end of the day for the executive 

branch to make that determination. But we have put in place a 

process that requires multiple levels of review. 

Mr. NADLER. Within the executive branch. But you are saying 

that you do not agree that ultimately a decision should be subject 

to judicial approval or disapproval as to invocation of the privilege? 

Attorney General HOLDER. Ultimately a judge, I think, would 

probably override our assertion of the privilege, and then we would 

have to decide whether or not we wanted to dismiss the case. But 

our hope is that through the process that we go through, we only 

invoke the privilege where it is absolutely necessary. And I think 

if we look at the statistics, we would probably see that we have invoked the privilege far fewer times than our predecessors. 

Mr. NADLER. I hope you will share those statistics with us. 

Thank you. 

Mr. SMITH. Thank you, Mr. Nadler. 

The gentleman from California Mr. Gallegly is recognized. 

Mr. GALLEGLY. Thank you very much, Mr. Chairman. 

Good to see you again, Attorney General Holder. 

On your last visit here, we asked about a few issues that we 

would like to get a response from. In fact, I am disappointed that 

to date your office has been unable to provide answers to what I 

consider some very simple questions that we asked in that meeting 

having to do with prosecutions of worksite enforcement cases. I am 

especially interested in the number of DOJ worksite enforcement 

prosecutions for each of the last 4 years, the number of prosecutions of illegal workers who have been using fraudulent documents. 

When can I realistically expect to get a response on that? 

Attorney General HOLDER. I was under the impression that we 

had responded to all of the questions that were put to me either 

during the hearing or as I guess we call ‘‘Q-fers.’’ If that is not the 

case, I will make sure—— 

Mr. GALLEGLY. I have not received them. In fact, we will be 

happy to reiterate with specificity what those were, but it is pretty 

straightforward. 

22 

Attorney General HOLDER. All right. We will get you those numbers, and I apologize if you have not gotten them. 

Mr. GALLEGLY. Okay. We will work with your office. 

You know, we all know that many illegal immigrants are using 

fraudulent Social Security numbers or individual taxpayer numbers 

to take jobs from American citizens. I don’t think there is any question about that in anyone’s mind. They also receive taxpayer benefits such as child tax credits, earned income tax credits. There have 

been reports that some illegal immigrants are claiming tax credits 

for children not even living in the United States. 

What specific—and I want to emphasize the word ‘‘specific’’— 

steps are being used by DOJ to stop this fraud, recover taxpayer 

money, deport the illegal immigrants who have committed the 

criminal fraud? 

Attorney General HOLDER. Well, you know, we work with our 

partners at DHS to come up with a number of ways in which we 

try to make sure that people, through worksite enforcement, 

through reaching out to employers, to make it clear what the policies are, what the law is. We use a variety of techniques to try to 

make sure that the kinds of people you are talking about are not, 

in fact, getting benefits to which they are not entitled. It is something that we have worked, I think, pretty effectively with with 

DHS. 

Mr. GALLEGLY. Would this group of individuals that I am speaking about, those that have clearly committed fraud, are these folks 

on a priority list for deportation, or are they among those that have 

been given an exemption or a review to get a temporary green 

card? 

Attorney General HOLDER. No. I mean, I think that we look—we 

certainly have prioritized those people for deportation, and we have 

tried to place at the head of that list people who potentially pose 

criminal problems for those of us in the United States or in the immigrant community, people who have engaged in violent acts. 

Those are the ones we are emphasizing. It doesn’t mean that those 

further down the list are not also people who we are trying to deport—— 

Mr. GALLEGLY. Well, we know, and I am glad to hear, that acts 

of violence by criminal aliens are at the top of the list, but the 

fraud issue, to me, is also an offense that should be very close to 

the top of the list when they are stealing the taxpayers’ dollars 

that could otherwise be used to help your Department, for instance. 

Also back in December, we talked about DOJ addressing the 

issue of Medicare fraud. And we know by many accounts there is 

as much as $60 billion a year that has been used as being stolen 

from our Medicare program fraudulently. What steps is DOJ taking 

to increase prosecutions on Medicare and also Medicaid fraud? 

Attorney General HOLDER. I am sorry. We are working with our 

partners at DHS, Kathleen Sebelius, the Secretary at HHS, have 

been going around the country and expanding what we call the 

Heat Strike Force teams to increase the Federal presence in our investigative capacity in those cities where we have identified these 

problems. And what we have seen is that we have received in the 

settlements in the prosecutions that we have brought record 

amounts of money brought back into the Federal Government. As 

23 

I indicated in my opening statement, for every dollar that we spend 

in enforcement, we bring back $7 to the Federal Government. And 

it is something that I think should be funded at as high a level as 

we possibly can. 

Mr. GALLEGLY. One closing question. Could you provide information to the Committee on what specific enforcement is taking place 

in this area in California, specifically southern California, and 

more specifically in and around the area of Los Angeles and areas 

like Glendale, California? 

Attorney General HOLDER. We can do that. I can certainly make 

clear to you what we are doing generally with regard to all the cities that we have targeted, but I can also share with you what we 

are doing in California, in the area of California. 

Mr. GALLEGLY. Thank you, Mr. Chairman. I yield back. 

Mr. SMITH. Thank you, Mr. Gallegly. 

The gentleman from California Mr. Berman is recognized. 

Mr. BERMAN. Thank you very much, Mr. Chairman, and welcome, Attorney General. 

I want to start by commending you and the Department for your 

diligent work defending U.S. taxpayers against fraud by government contractors. Every year I watch the total amount recovered 

for taxpayers under the False Claims Act increase, and I am grateful for the work that the Department and whistleblowers do together to protect our tax dollars. I think we are now up to something just over $30 billion. And a lot of my colleagues today are focusing on their beefs with you today. I want to talk about this subject, because here I think here the Justice Department and you are 

doing this right, and it seems the law is quite effective, and I would 

like to make sure it stays that way. 

Earlier this year you invited me to take part in the commemoration of the 25th anniversary of the False Claims Act, and though 

I wasn’t able to participate in the panel discussion that followed 

the main event, I am told that one of the issues discussed on that 

panel was whether or not we should change how relators are compensated for their efforts and recovery on behalf of the taxpayers. 

In October of last year, the United States Chamber of Commerce 

put out a report suggesting that a hard cap of $15 million would 

be adequate to compensate any relator. Their logic seemed to be 

that that amount would cover most people’s future earnings if their 

efforts as a whistleblower kept them from working again. The report also suggests that such a cap would not deter whistleblowers 

from pursuing qui tam cases, because in their study of 26 cases, 

the whistleblowers responded to a question about why they would 

be willing to bring suit, and most of them said that they did it because it was the right thing to do. 

I believe that, but I also know for a fact that the whistleblowers 

put themselves at tremendous risk when they make the decision to 

file suit and try to recover on behalf of the government and the 

American taxpayer. These cases are expensive to pursue, and they 

can last for years. They require commitment, and I don’t know if 

a general good feeling about, quote, ‘‘doing right’’ is what will make 

someone remain committed to the cause for the long haul. 

Right now relators can be awarded a percentage between 15 and 

30 percent depending upon the certain factors such as whether or 

24 

not the government joined the relators as plaintiffs. In my mind, 

and I think the history of the act bears this out, this percentage 

share encourages a relator to pursue a case until they can recover 

an amount equal to the entire impact of their fraud as opposed to 

settling when the case goes too long, perhaps because they know 

there is a hard cap, and they can only recover so much money. 

Though the Chamber argues that a hard cap would save the government money, I have to wonder how many cases it would deter 

or at least reduce the recovery for the taxpayers. In today’s world, 

where some of these cases recover billions of dollars, if a hard cap 

deterred even one such case, it would be a very costly endeavor for 

taxpayers. 

When we consider the False Claims Act amendments in 1986 

and in revisions since, proposals to enforce a hard cap have not 

been well-received. Of course, there are reasons that defendants 

fighting qui tam suits would want to limit damages, but I am more 

focused on what works best for the taxpayer. I believe what we 

have now is working well. 

I sent you a letter on this subject earlier this month, but I wonder if you could share some thoughts with me now about whether 

the Department remains committed to relaters being awarded a 

percent share or if you support a shift to a hard cap. 

Attorney General HOLDER. Well, I have to say that I am not totally familiar with the proposal that you have described. But I can 

say that the act, as it is presently constructed, is working extremely, extremely well. And you are right, we asked you to come 

to the Justice Department to celebrate the success that we have 

had over the past 25 years with regard to an act that you were instrumental in passing. 

Over the past 25 years, we have had nearly 8,000 qui tam cases 

that have filed that have yielded more than $21 billion in recoveries—$21 billion in recoveries—for the United States, $3.4 billion 

in awards to relaters. In fiscal year 2011 alone, the Department recovered more than $2.78 billion in qui tam cases; relaters received 

about $530 million as their statutory shares. 

The statute as it is presently constructed works, and works quite 

well. I would be reluctant to fool around with a formula that for 

the past 25 years has shown to be an effective tool in getting at 

fraud and incentivizing people to stay involved in the process and 

working with government as partners. Now, again, I will look at 

it, but I have to tell you that, on the basis of my examination of 

the regulation as it exists, the statute as it exists, I would be extremely reluctant to tamper with it. 

Mr. SMITH. Thank you, Mr. Berman. 

The gentleman from Virginia, Mr. Goodlatte, is recognized. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

General Holder, both the Criminal Division head Lanny Breuer 

and his deputy, Jason Weinstein, had knowledge that the ATF let 

a bunch of guns walk, and some were recovered in Mexico, all related to the Fast and Furious scandal. 

In a prior operation, when they reviewed the February 4, 2011, 

letter that falsely denied the ATF knowingly allowed the sale of assault weapons to a straw purchaser who transported them to MexVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
25 

ico, do you think it is a serious offense for an individual to mislead 

the Congress? 

Attorney General HOLDER. Well, first, with regard to the question, I think you have it a little off there. The two individuals who 

you talk about, Mr. Weinstein and Mr. Breuer, did not know about 

the tactics used in Fast and Furious until the beginning of last 

year. The—— 

Mr. GOODLATTE. But they did acknowledge that, quote, ‘‘ATF let 

a bunch of guns walk,’’ and, quote, ‘‘some were recovered in Mexico,’’ end quote. 

Attorney General HOLDER. That was in connection, I believe, 

with Operation Wide Receiver that occurred—— 

Mr. GOODLATTE. Correct. 

Attorney General HOLDER [continuing]. In the prior Administration. 

Mr. GOODLATTE. Correct. Correct. But they did not acknowledge 

that in their communication with the Congress. So my question to 

you is, do you think it is a serious offense for an individual to mislead the Congress about what they know about what is going on 

in your department? 

Attorney General HOLDER. Well, to the contrary, they did acknowledge to Congress that they did have that information about 

Wide Receiver and said that it was a mistake on their part not to 

share it with the leadership of the Department, that prior knowledge. Also indicated that it was a mistake on their part not to use 

that prior knowledge when they were looking at Fast and Furious 

to try to understand that they should have been more sensitive to 

what was going on with regard to Fast and Furious. 

Mr. GOODLATTE. What consequences have they faced as a result 

of that? 

Attorney General HOLDER. Well, they are certainly—they have 

apologized. They have been—— 

Mr. GOODLATTE. An apology is a good thing, but it is not a consequence for gross mismanagement of an operation that cost the 

life of one border security guard. Why haven’t these two most senior political attorneys in the Criminal Division faced any consequences at all for their participation in this lack of being forthcoming to the Congress and to others and for not putting a halt to 

the subsequent activities that took place? 

Attorney General HOLDER. Well, again, I think your premises are 

wrong. They have been forthcoming to Congress. They have testified or been interviewed in a way that I think is consistent with 

the facts. They have been very forthright about—— 

Mr. GOODLATTE. But what about the underlying decision of allowing this to go forward? 

Attorney General HOLDER. And that is the another part of, I 

think, your premise that is not right. They were not in charge of, 

they did not have operation control of Operation Fast and Furious. 

Mr. GOODLATTE. But when they knew about it, what did they do 

about it? 

Attorney General HOLDER. Well, that happens about the same 

time everybody in Washington finally hears about these tactics. 

They were assured by the people in Arizona that the gun-walking 

in fact did not occur. That is the information that they got. If you 

26 

look at the materials that we submitted to Congress, the deliberative materials that we submitted to Congress around the February 

4th letter, you will see that neither Mr. Breuer nor Mr. Weinstein 

had information about the use of—they were, in fact, assured that 

gun-walking tactics were not employed with regard to Operation 

Fast and Furious. 

Mr. GOODLATTE. Now, with regard to the prosecution of Senator 

Ted Stevens in Alaska, in that case Senator Stevens was falsely 

prosecuted. His reputation was ruined; he was not re-elected to the 

United States Senate. And it was determined that the U.S. prosecutors were engaged in outright fabricating of some evidence, deliberately withholding information that revealed the Senator’s innocence. And, ultimately, they were held in contempt of court, and 

the charges against Senator Stevens were dismissed. 

But what consequences have they faced? To my knowledge, the 

only consequences for engaging in the outright fabrication of evidence and deliberately withholding exculpatory evidence that 

would have revealed the Senator’s innocence was that one of them 

was suspended without pay for 40 days and the other for 15 days. 

Why were not these individuals fired? 

Attorney General HOLDER. Well, there—— 

Mr. GOODLATTE. Some would say they should have been disbarred for that activity. That is not the purview of the Justice Department, but, certainly, no longer having them on the payroll of 

the Justice Department would be a good step in the right direction, 

wouldn’t it? 

Attorney General HOLDER. Well, again, there are a number of 

premises there that are inconsistent with the facts. 

This is a case that was brought by the prior Administration. It 

was not dismissed by the court. I dismissed the case, this Attorney 

General dismissed that case after I had concerns about the way in 

which we had failed to turn over information that the defense had 

a right to. 

The OPR report looked at the matter and made a determination 

that they did not do so intentionally. It is inconsistent or it is at 

tension with the report that was done by Mr. Schuelke and the recommendation made by those people charged with the responsibilities that those penalties should be imposed, I guess 40 days and 

15 days. 

This is not something that the Attorney General, the Deputy Attorney General is involved in, the determinations as to how those 

cases—what punishment should be made or findings of fact is done 

by people who are career within the Department. The same thing 

happened with regard to the determination concerning Mr. Yoo and 

the creation of those OLC memos involving interrogation techniques. Whether or not the Attorney General agrees or disagrees 

with what the career people do, the tradition in the Department is 

that that is something for career people charged with that responsibility to ultimately determine. 

Mr. GOODLATTE. Mr. Chairman, I would ask that a letter dated 

February 4, 2011, signed by Ronald Weich, Assistant Attorney 

General, which I think rebut the statements made by the Attorney 

General with regard to what was known and what was not known 

27 

about Operation Wide Receiver and Operation Fast and Furious, be 

made a part of the record. 

Mr. SMITH. Without objection, the documents will be made a part 

of the record. 

[The information referred to follows:] 


74504A-1.eps
28 

Mr. SMITH. The gentleman from Virginia, Mr. Scott, is recognized. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

And thank you, Mr. Attorney General, for being with us today. 

Mr. Holder, you have been criticized for not turning over information upon request to one of the Committees. Did some of those 

requests involve information pertaining to confidential informants 


74504A-2.eps
29 

and wiretaps under seal, court-ordered seal, and information related to ongoing investigations? 

Attorney General HOLDER. Yes, that is true, but we have turned 

over a very significant amount of information. We have collected 

data from 240 custodians. We have processed millions of electronic 

records. We have turned over 7,600 pages on 46 separate productions. We have—— 

Mr. SCOTT. Well, could you tell us, what is wrong with handing 

over information involving confidential informants, wiretap information under court seal, and information related to ongoing investigations? 

Attorney General HOLDER. We are, by law, prohibited from discussing or turning over the contents of wiretap-related material. 

There is a criminal provision that has a 5-year penalty that prevents us from doing that. 

And there is also a very practical reason. There are concerns that 

one would have about people who are involved in these matters. 

You might put victims’ safety at risk. You might put at risk the 

success of a prosecution. 

Those are all the reasons why there are very tight restrictions 

on the provision of material connected to wiretaps. 

Mr. SCOTT. Thank you. 

Mr. ISSA. Would the gentleman yield? 

Mr. SCOTT. I have very little time. 

Mr. ISSA. I will be very brief. 

Mr. SCOTT. Go ahead. 

Mr. ISSA. We did not request any wiretaps under seal, since I am 

the person who signed the subpoenas. 

Mr. SCOTT. Thank you. 

Reclaiming my time, Mr. Attorney General, Section 5 is there to 

prevent discriminatory election practices from going into effect. If 

you didn’t have Section 5, discriminatory voting changes could go 

into effect until the victims of discrimination raised enough money 

to get into court to get an injunction. Those who benefit from the 

discrimination would get to legislate until the law is overturned. 

And when overturned, they would get to run with all the advantages of incumbency as a result of their discrimination. 

And so there is an incentive to keep discriminating. But under 

Section 5, the burden is on covered States to demonstrate that an 

election change does not have a discriminatory effect and purpose. 

Section 5-covered States were not selected randomly; they were 

covered the old-fashioned way: They earned it, with a history of 

discrimination. 

Now, how is the Department of Justice using Section 5 to prevent discriminatory voting practices? And, specifically, what are 

you doing in Florida to prohibit purging of voters, according to 

press reports, that include decorated war veterans clearly eligible 

to vote? 

Attorney General HOLDER. Well, I think firstly, just a bit of an 

overview. And this will take just a second. 

You have to understand that over the course of the time in which 

I have been Attorney General, we have looked at about 1,800 requests for preclearance under Section 5. We have opposed 11—11. 

Eighteen hundred requests, we have opposed 11. Now, included 

30 

among those is what Florida has been trying to do with regard to 

the Section 5-covered counties, that one of which—one of those 

changes which a Federal judge has already said is inappropriate. 

Section 5 was reauthorized by a near-unanimous Congress, 

signed by President Bush, findings made by this Congress that the 

need for Section 5 continues, reauthorized, I believe, until 2031. It 

is the position of this Department of Justice and certainly this Attorney General that we will vigorously defend and vigorously use 

Section 5. The need for it is still there. 

Mr. SCOTT. Thank you. 

The first bill this President signed was the Lilly Ledbetter Act 

dealing with discrimination in employment. One of the things that, 

in talking about discrimination in employment, in 1965 President 

Johnson signed an Executive order prohibiting all discrimination in 

employment with Federal contracts. I understand this Administration still allows discrimination in Federal contracts based on religion, if it is a so-called faith-based group. 

My question is, do they need permission, a certification to qualify 

for the right to discriminate? Or do they just get the right to discriminate based on the fact that they are faith-based organizations 

using Federal money? 

Attorney General HOLDER. Well, I think we are committed to ensuring that we partner with faith-based organizations in a way 

that is consistent with our laws, our values. And the Department 

will continue to evaluate legal questions that arise with respect to 

these programs and try to ensure that we—make sure that we ensure that we fully comply with all of the applicable laws. 

Mr. SCOTT. Does that mean they can discriminate? 

Mr. SMITH. The gentleman’s time has expired. 

Mr. SCOTT. I think it was a yes-or-no answer. 

Mr. SMITH. Okay. 

Mr. Attorney General, go on. If you would, answer the question. 

Attorney General HOLDER. As I said, we try to do this—we look 

at the policies and try to make sure that they act in a way that 

is consistent with law. 

Mr. SMITH. Okay. Thank you, Mr. Scott. 

The Chairman from California, Mr. Lungren, is recognized. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Attorney General, I would just follow up on what my friend 

from Virginia, Mr. Goodlatte, had to say with respect to the Stevens case. I realize that you reassigned people after that. I realize 

it was an investigation and indictment that came before you were 

Attorney General. That is not the point. The point is, if you have 

no real consequences now, you are going to have no real changes 

in the future. 

That was conduct that was stated by the judge to be outrageous. 

He held a hearing as to whether a new trial ought to be called. Before he made a ruling, you did come forward with a motion to dismiss, recognizing the problems internally. The investigations 

showed widespread misconduct among the whole team, and yet I 

am unaware of anybody that was fired. 

And Senator Stevens lost his election, but, more importantly, he 

lost his reputation. And I happen to think that in the absence of 

serious action taken against employees of either the Department of 

31 

Justice prosecutorial corps or the FBI, that, frankly, the message 

is not seriously received. So I would just like to state that for the 

record. 

And now, Mr. Attorney General, if I were lucky enough to be invited down to meet you or see you at your office at the Justice Department, wouldn’t I have to show a government-issued photo ID 

to get in to see you? 

Attorney General HOLDER. You might. 

Mr. LUNGREN. If I were to go to the Federal courthouse here in 

D.C. either as a party or as an attorney, wouldn’t I have to show 

a government-issued photo ID? 

Attorney General HOLDER. That has not been my experience here 

in D.C. I don’t—you know. 

Mr. LUNGREN. Some Federal courts—are you aware that that is 

required in some Federal courts in this land? 

Attorney General HOLDER. I don’t know. 

Mr. LUNGREN. Are you aware that if I have to come here from 

California to exercise my constitutional right of travel and as an 

ordinary citizen petition the government for a redress of my grievances, I have to show a government-issued photo ID, do I not? 

Attorney General HOLDER. That one, yes. To get on a plane, you 

have to have a photo ID. 

Mr. LUNGREN. Okay. And that does involve the constitutional 

right of travel among the States, correct? 

Attorney General HOLDER. Yep. The Supreme Court has said 

that the right to travel is of constitutional dimension. 

Mr. LUNGREN. So is your Justice Department investigating the 

discriminatory effect of those laws with respect to someone’s constitutional right to travel or constitutional right to visit you? I 

mean, the Constitution doesn’t say, petition the government for redress of grievances only goes to some people. I mean, if I have a 

complaint with the Justice Department and want to come to the 

Justice Department, are you inhibiting me, affecting my constitutional right by requiring me to show a government-issued photo 

ID? 

Attorney General HOLDER. No, but let’s get to the bottom line 

here. That—— 

Mr. LUNGREN. Well, no, this—my question is—— 

Attorney General HOLDER. All right. Well, I will give you an answer. The answer—— 

Mr. LUNGREN. Well, that is all I am asking. 

Attorney General HOLDER. The answer is that, with regard to 

the limited things that you have discussed, it might not have an 

impact on your constitutional right, but that some of the laws that 

we have challenged do have an impact on a person’s ability to exercise that most fundamental of constitutional rights, and that is the 

right to vote. 

Mr. LUNGREN. It is a fundamental right to petition the government to redress my grievances. Don’t you think that is as important as, quote/unquote, the ‘‘right to vote’’? 

Attorney General HOLDER. I would agree with President Johnson, with what he said after the 1965 Voting Rights Act was 

passed, that voting is the most important right that we have as 

32 

American citizens. It is what distinguishes this country and makes 

it exceptional as compared to other Nations around the world. 

Mr. LUNGREN. Okay. I also happen to think it is important that 

we have the opportunity to petition the government to redress the 

grievances. I think that is as fundamental a concept. 

Attorney General HOLDER. But through the vote, I can change 

the government. I have that ability through my right to vote. 

Mr. LUNGREN. Well, you can sue me in court. You can threaten 

to sue me in court. And as a proud individual American citizen, I 

suppose I have a right to at least talk to you about whether you 

are going to bring me before the court and bring the majesty of the 

government against me. And I would think that that is as important a right. 

Now—— 

Attorney General HOLDER. Well, I certainly have that ability to 

talk to you. But if I disagree with you, at the end of the day, I have 

the ability to cast a ballot—— 

Mr. LUNGREN. But I can’t even come in and talk to you unless 

I show a government-issued photo ID, is my point. 

Now—— 

Attorney General HOLDER. No, that is not true in the government. That is not true at the Justice Department. If you were to 

show up at the Justice Department, somebody could vouch for you 

and you could come into the Department and we could have a very 

civil, I am sure, conversation. 

Mr. LUNGREN. Is that right? Okay. I haven’t tried that with TSA. 

That doesn’t work very, very well in terms of being able to get on 

an airplane to fly back here to knock on your door to get to see you. 

Attorney General HOLDER. Well, there are terrorists who are trying to bring down planes, as we have seen over the course of the 

last, I guess, 12 years. 

Mr. LUNGREN. And there are people who cheat about voting 

when they don’t have a right to vote. 

Attorney General HOLDER. We do not see that to the proportions 

that people have said, you know, in an attempt to try to justify 

these photo ID laws. All of the, I think, empirical and neutral evidence shows that questions of vote fraud do not exist to the extent 

that people say that it does exist. 

Mr. LUNGREN. So the Supreme Court was wrong in its decision 

in 2007 when it said that States have a legitimate interest in requiring photo IDs for voters even absent evidence of widespread 

fraud in order to inspire confidence in the electoral system? You 

disagree with the Court on that? 

Attorney General HOLDER. You know, what is interesting there— 

and please expand—— 

Mr. SMITH. If you will, answer the question, and then we will 

move on. 

Attorney General HOLDER. Sure. 

The Supreme Court—the Crawford case is fundamentally different from that which we are talking about now. That was not a 

Section 5 case. Indiana is not covered by Section 5 of the Voting 

Rights Act. 

And I would just—with all due respect, Attorney General 

Mukasey talked about the Crawford decision, the Indiana decision, 

33 

and this tells how it is different. He says that ‘‘the Court acknowledged the undeniable fact that voter ID laws can burden some citizens’ right to vote. It is important for States to implement and administer such laws in a way that minimizes that possibility.’’ He 

then said, ‘‘We will not hesitate to use the tools available to us, including the Voting Rights Act, if these laws, important though they 

may be, are used improperly to deny the right to vote.’’ 

That is Michael Mukasey talking about the Indiana Crawford decision—Michael Mukasey, not Eric Holder, Michael Mukasey. 

Mr. SMITH. Thank you, Mr. Lungren. 

The Chairman from North Carolina, Mr. Watt, is recognized. 

Mr. WATT. Thank you, Mr. Chairman. 

Let me start by just expressing my disappointment that some of 

my colleagues are spending so much time advancing the notion 

that we should be disqualifying people from exercising the most 

basic right that they have in our democracy, the right to vote. And 

that this is the Judiciary Committee in which these arguments are 

being advanced is just disappointing to me. 

Second, I want to applaud the Justice Department for some work 

that they are doing in my congressional district in particular, some 

very high-level cases fighting drug trafficking, protecting against 

child predators, a bunch of money we spent on the COPS program. 

And the most vigorous supporters of the COPS program are the 

most conservative sheriffs in my congressional district because they 

have been able to access funding to beef up their law enforcement 

capacity. 

So I won’t go back to the voting rights part of this because I 

think I will get too emotional about that. Let me deal with the 

thing that is under my Subcommittee’s jurisdiction, the one that I 

am the Ranking Member on, and that is, we have made some efforts to try to do something about piracy. We were not successful 

legislatively, but the problem has not gone away. 

A recent article in USA Today notes the proliferation of dangerous counterfeit products that pose safety concerns for the American public. Many of these products, including counterfeit pharmaceuticals, are available online and come from foreign sources. 

In January of this year, the Department of Justice issued indictments against Megaupload, a foreign-based Web site that was 

charged with illegally infringing the copyrights of American businesses. And now I note that some group has—what is it called, 

Anonymous—unleashed a series of cyber attacks in the aftermath 

of the indictments against Megaupload. So now there is a connection between piracy on the one hand and cybersecurity on the other 

hand. 

Can you just talk to us about the real threats that we have in 

that area, both on the piracy side of this issue and on the 

cybersecurity, and their connections just a little bit so we will have 

some background that at least informs the American people of how 

serious the problem is? 

Attorney General HOLDER. I mean, the piracy issue has a number of dimensions to it. It is an economic issue, it is a jobs issue. 

When the theft of our intellectual property or the methods that we 

use to produce things is stolen by other organizations or by other 

countries, it has a direct impact on our economy. 

34 

There is also a safety factor. Health items, medicines that are 

produced in a way that are inconsistent with the great standards 

we have in the United States, then sold back to the United States 

or sold in other countries, can put people at risk. The whole question of various parts that can be used in airplanes. Other things 

that are not done in a way consistent with the way in which our 

intellectual property standards are done can have a negative impact on safety in that way. 

So the piracy question is one that has economic consequences as 

well as safety consequences. If one looks at the whole cyber issues, 

again, these are national security issues. The ability of foreign 

countries or organizations to have an impact on our infrastructure, 

to use cyber tools to ferret out secret information from the United 

States, all puts our Nation at risk and is worthy of the attention 

of, I think, this Committee, this Congress, and the executive 

branch. And I would hope that we would be able to work together 

to come up with a way in which we could craft tools to deal with 

what is truly a 21st-century problem. 

Mr. WATT. I thank you. And at the risk of not going over time 

like some of my colleagues have, I will just stop there, because any 

other question I could ask would be well over into the next person’s 

time. 

So I will yield back, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Watt. 

The gentleman from California, Mr. Issa, is recognized. 

Mr. ISSA. Thank you, Mr. Chairman. 

Attorney General, December 14, 2010, Brian Terry was gunned 

down, and we began knowing more about Fast and Furious shortly 

thereafter. But you have said, people representing you have said 

repeatedly that you didn’t know about it before then. 

I have sent you a number of letters. Senator Grassley has sent 

you a number of letters. You mentioned in your opening statement 

the Speaker’s letter. The Speaker did not limit the scope of the subpoenas you are under an obligation to respond to. He simply asked 

you for a response to two key areas. He did not revoke any subpoenas. 

However, you implied that we were working together, when, in 

fact, since May 18th, nothing—nothing—has come from your department, not one shred of paper. 

I want to ask you first of all today, have you and your attorneys 

produced internally the materials responsive to the subpoenas? 

Attorney General HOLDER. We believe that we have responded to 

the subpoenas—— 

Mr. ISSA. No, Mr. Attorney General, you are not a good witness. 

A good witness answers the question asked. So let’s go back again. 

Have you and your attorneys produced internally the materials responsible? In other words, have you taken the time to look up our 

subpoena and find out what material you have responsive to it? Or 

have you simply invented a privilege that doesn’t exist? 

Attorney General HOLDER. You are saying internally, have 

we—— 

Mr. ISSA. Internally, have you pulled all that information? 

35 

Attorney General HOLDER. We have looked at 240 custodians, we 

have processed millions of electronic records, and we have reviewed 

over 140,000 documents and produced to you about 7,600—— 

Mr. ISSA. So, 140,000 documents. How many documents are responsive but you are withholding at this time? 

Attorney General HOLDER. Well, we have produced 7,600—— 

Mr. ISSA. Look, I don’t want to hear about the 7,600. 

Ms. JACKSON LEE. Mr. Chairman, I would beg to allow—— 

Mr. ISSA. The lady is out of order. Would the lady please suspend. 

Ms. JACKSON LEE. Mr. Chairman, a—— 

Mr. ISSA. This is my time. 

Ms. JACKSON LEE [continuing]. Parliamentary inquiry. Excuse 

me, Mr. Chairman. I would beg to allow the Attorney General to 

be able to finish his answer. 

Mr. SMITH. The Attorney General will be allowed to answer the 

question. 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. SMITH. And the Attorney General will have more time to do 

that if we don’t have interruptions. 

Mr. ISSA. And I would like my time reclaimed that was used up 

by the gentlelady. 

Mr. SMITH. You will be given additional time—— 

Mr. WATT. Mr. Chairman, I suggest we take back the time that 

Mr. Lungren used, the 2 minutes over his time that he used, 

and—— 

Mr. ISSA. If you want to give me an additional 2 minutes, I am 

fine with it. 

Mr. WATT. No, I am going to give you the 45 seconds I yielded 

back. But if we are going to apply a rule on one side of this 

aisle—— 

Mr. SMITH. Let’s get back to—— 

Mr. WATT [continuing]. Then we ought to apply the rule consistently. That is the point I am trying to make. 

Mr. SMITH. Let’s get back to regular order. The gentleman from 

California has the time, and the Attorney General will be allowed 

to answer the question. 

Mr. ISSA. Isn’t it true, Mr. Attorney General, that you have not 

produced a log of materials withheld, even though our investigators 

have asked for it? 

Attorney General HOLDER. I know that—I am not sure about 

that. I know that the—— 

Mr. ISSA. Okay. I am sure you didn’t. So let’s move on. 

March 15, 2010, before Brian Terry was gunned down; April 19, 

2010, before Brian Terry was gunned down; May 7, 2010, before 

Brian Terry was gunned down; May 17, 2010, before Brian Terry 

was gunned down; June 2, 2010, before Brian Terry was gunned 

down; July 2, the real date of our independence, 2010—obviously 

earlier—before Brian Terry was gunned down. 

These wiretap applications which we did not subpoena but which 

were given to us by a furious group of whistleblowers that are tired 

of your stonewalling indicate that a number of key individuals in 

your Administration in fact were responsible for information contained in here that clearly shows that the tactics of Fast and FuriVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
36 

ous were known. They were known and are contained in these 

wiretaps. 

I understand you have read these wiretaps since we brought 

them to your attention. Is that correct? 

Attorney General HOLDER. I have read them. And I disagree with 

the conclusion you have just reached. 

Mr. ISSA. So let me go through a very simple line of questioning, 

if I may, Mr. Attorney General. 

James Cole, Deputy Attorney General, has written that the Department has a greater obligation than just checking the legal sufficiency in approving wiretap application. He thinks that applications also have to comply with DOJ policy. Is that correct? 

Attorney General HOLDER. Applications have to agree with DOJ 

policy? 

Mr. ISSA. That is what he said. 

Attorney General HOLDER. Sure. 

Mr. ISSA. Okay. 

During a transcribed interview, Deputy Assistant Attorney General Jason Weinstein testified that senior officials approving the 

wiretap applications do not read the wiretap applications. Is this 

practice acceptable to you? 

Attorney General HOLDER. They read summaries of the applications, and that is a process that has been used by this Administration and by all previous Administrations. It is the way in which the 

Office of Enforcement—— 

Mr. ISSA. And are you aware that Federal—— 

Attorney General HOLDER. Let me answer the question. 

Mr. ISSA. Are Federal judges, to your knowledge—— 

Attorney General HOLDER. Can I answer my question, the question you have asked me? 

Mr. ISSA. No. You have given me a sufficient answer considering 

the amount of questions I have and the amount of time I have. 

You are okay with that practice? You have already answered 

that. 

So would you agree that senior officials are responsible for documents they signed? I would assume the answer is yes. 

So now let me ask you the question. Jason Weinstein, is he responsible for what is in these wiretaps? 

Attorney General HOLDER. Is he responsible—— 

Mr. ISSA. He is a responsible officer under statute. Is he responsible for them even if he only read a summary? 

Attorney General HOLDER. He did not create those affidavits. He 

did not create that material. He would have been a person, as a 

Deputy Assistant Attorney General, who would review the—— 

Mr. ISSA. So when Congress writes a statute requiring certain individuals be responsible, such as Jason Weinstein, Lanny Breuer, 

and yourself—— 

Mr. WATT. Regular order, Mr. Chairman. Regular order, Mr. 

Chairman. 

Mr. ISSA. I am in the middle of a question. 

Mr. SMITH. The Attorney General will be allowed to answer this 

question. 

Mr. WATT. He hasn’t asked the question, Mr. Chairman. 

Mr. ISSA. I am halfway through it if you will quit interrupting. 

37 

If in fact the statute says they are responsible, and if in fact they 

are not read, then in fact—— 

Mr. WATT. Regular order, Mr. Chairman. 

Mr. ISSA [continuing]. How are the American people to understand who is—— 

Mr. WATT. Regular order, Mr. Chairman. 

Mr. ISSA [continuing]. Responsible for what is contained in these 

documents—— 

Mr. SMITH. The Attorney General will be allowed to answer this 

question. 

Mr. ISSA. Because anyone of ordinary reading, including the ATF 

director, former director, Melson, anyone reading these, according 

to him, would be sick to their stomach because they would be immediately aware—— 

Mr. WATT. Does he have a question, Mr. Chairman? 

Mr. ISSA. So who is responsible, Mr. Attorney General? 

Attorney General HOLDER. All right. You have really conflated a 

bunch of things here. 

The responsibility—— 

Mr. ISSA. You have delivered so little in—— 

Mr. WATT. Regular order now, Mr. Chairman. Will he be allowed 

to answer the question now? 

Mr. SMITH. The Attorney General will be allowed to answer the 

question, but I would appreciate no more interruptions so the AG 

can answer the question. 

Attorney General HOLDER. The responsibility about which you 

speak is, in fact, the responsibility of a Deputy Assistant Attorney 

General looking at those summaries to make sure that there is a 

basis to go into court and to ask that court to grant the wiretap 

based on a determination that a responsible official makes that 

probable cause exists to believe that a wire facility has been used 

in the commission of a crime. They do not look at the affidavits to 

see if, in fact—to review all that is engaged, all that is involved in 

the operation. 

I have read those now. I have read those. I have read those; I 

have read them from Wide Receiver, as well. And I can say that 

what has happened in connection with Fast and Furious was done 

in the same way as wiretap applications were done under the previous Administration in Wide Receiver. I have looked at the summaries, and they acted in a way that is consistent with the practice 

and the responsibility that they have as defined by the statute. 

Mr. SMITH. Thank you, Mr. Issa. 

The gentlewoman from California, Ms. Lofgren, is recognized. 

Mr. CONYERS. Mr. Chairman? Before—— 

Mr. SMITH. Does the Ranking Member wish to speak out of 

order? 

Mr. CONYERS. If I may, please. 

Mr. SMITH. The gentleman is recognized. 

Mr. CONYERS. I think that the previous questioning was the first 

note of hostility and interruption of the witness that I think has 

been uncharacteristic of what we have been doing here so far 

today. And I would like to ask the Chair to admonish all the witnesses from here on out to please try to—all of the Members from 

here on out to please allow the witness to finish his answers. 

38 

Mr. ISSA. Would the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. ISSA. You know, I appreciate that there was hostility between the Attorney General and myself. 

Attorney General HOLDER. Just for the record—— 

Mr. ISSA. I would hope that the Ranking Member would understand—— 

Attorney General HOLDER [continuing]. There was no hostility on 

my part. 

Mr. ISSA [continuing]. That, in fact, most of it was produced by 

the fact that I have a great many questions and a relatively little 

period of time in which to get answers, and that for a year and a 

half my Committee, through subpoena and interrogatories, has 

been attempting to get answers for which this witness has basically 

said he asserts a privilege without—— 

Mr. WATT. Parliamentary inquiry, Mr. Chairman. 

Mr. SMITH. The gentleman from Michigan has the time. 

Mr. WATT. Parliamentary inquiry, if the gentleman will yield. 

Mr. CONYERS. I would like to yield to the Attorney General at 

this point, please. 

Attorney General HOLDER. Well, with all due respect to Chairman Issa, he said there is hostility between us. I don’t feel that, 

you know. I understand he is asking questions; I am trying to responded as best I can. I am not feeling hostile at all. I am pretty 

calm. I am okay. So, you know. 

Mr. SMITH. Let me assure the gentleman from Michigan that the 

Attorney General will be allowed to answer future questions. 

And the gentlewoman from California, Ms. Lofgren, is recognized 

for her questions. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

And, Mr. Attorney General, thank you for being here with us. 

When you were last before us in December, I asked you about 

a case involving the seizure of a domain name called Dajaz1.com 

for alleged copyright infringement. In December, you said you were 

unfamiliar with the case but that you would certainly look into it 

and get back to me. Since that hearing, not only have I not heard 

from you but new details have surfaced. And, therefore, I would 

like to revisit the issue. 

To refresh everyone’s memory, Dajaz1 is a blog. It is a blog dedicated to discussion of hip-hop music. And in November of 2010, the 

domain name of the site was seized as part of ICE’s Operation In 

Our Sites and on an application by prosecutors in your department. 

After the government seized the domain name, the owners filed a 

request for the government to return it to them, and under the law 

the government had 90 days to initiate a full forfeiture proceeding 

against the domain or else return the property. 

However, in this case, that deadline passed with no action. When 

the Web site’s lawyer inquired with the Department’s lawyers, he 

was told the government had filed an extension but under seal. The 

Web site was given no notice, and they were never given an opportunity to appear in court and to respond. 

And I have talked to the representative of the Web site, and he 

assures me that he made diligent efforts to try and actually appear 

and make his case. When he asked for proof that the extension exVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
39 

isted, your department’s lawyers basically said that he would have 

to trust them. 

Now, this happened two more times. Finally, in December of last 

year, more than a year after the original seizure, the government 

decided that it didn’t, in fact, have probable cause to support the 

seizure and returned the domain. 

Now, we now have unsealed court records, and we know that 

ICE and your department were actually waiting for the Recording 

Industry Association of America, which made an initial allegation 

of infringement, to provide detail, apparently proof. And I have reviewed the affidavit—which I would ask unanimous consent to put 

into the record—that in September of 2011, 10 months after the 

seizure, the ICE agent was still waiting for information from RIAA 

to give probable cause. 

Now, here is the concern I have. Blogs are entitled to First 

Amendment protection. And I think it is the law that you have to 

have probable cause before you seize things. You can’t seize things, 

have secret proceedings in the Federal court, and then a year later 

come up with probable cause. 

So here is my question for you. It looks to me—and, I would say, 

another issue as to Web sites. I mean, this isn’t like a car that is 

stolen and is going to disappear, or a bag of cocaine. It is a Web 

site, so the evidence can be completely preserved even without seizures. So I think the issue of seizure does need to be visited with 

us. 

But I want to know what the Department’s posture is if an ICE 

agent is behaving recklessly in an investigation, as it seems to be 

in this case. Don’t the prosecutors in your department have an obligation to reject faulty affidavits? Do you think that the ex parte 

process that was included here is proper and consistent with the 

First and Fifth Amendments, to seize a domain name that has 

First Amendment protection for a year without any opportunity for 

the owner to be heard? 

Attorney General HOLDER. As with all domains that are seized 

or were seized, I guess, in Operation In Our Sites, I believe that 

the seizure that you reference was conducted pursuant to a lawful 

court order, and the procedures that the Department followed in 

that case, including the ex parte procedures you mentioned, were 

consistent with the statutes that authorize the seizure and forfeiture and also consistent with due process protections that those 

statutes provide. 

Ms. LOFGREN. So you are suggesting that the representation, 

which turned out to be false, under the initial affidavits—which I 

again would ask to be made a part of the record—those false affidavits were sufficient to have ex parte communications and secret 

proceedings in the Federal court to suppress this speech for over 

a year? 

Attorney General HOLDER. No, I mean, clearly, if material was 

submitted that was false in an underlying affidavit—— 

Ms. LOFGREN. Or at least misleading. 

Attorney General HOLDER [continuing]. Or misleading, that 

would not be an appropriate basis for action on behalf of the government. 

40 

The seizure and forfeiture of property is a really powerful tool 

that the government has, and it has to be used judiciously. And to 

the extent that there are problems along the lines that you have 

described, that would be of great concern. We should not be in 

court trying to do the kinds of things that I have described here— 

domain name seizures—if the underlying material is not consistent 

with the facts. That is something we shouldn’t be doing. 

Ms. LOFGREN. Well, as I say, last December you were going to 

get back to me, and I know you have many things to do. But I 

would appreciate, and I will ask again, if I could get a report on 

this specific case. And, certainly, as my colleague, Mr. Watt, has 

mentioned, there are important enforcement issues that need to go 

on. I do not disagree with that. But we also have to be very careful 

about the First Amendment and the Fifth Amendment, and I hope 

that you do not disagree with that. 

Mr. SMITH. All right. Thank you, Ms. Lofgren. 

And, without objection, the documents that the gentlewoman referred to will be made a part of the record. 

[The information referred to follows:] 

41 


74504J1-1.eps

Case 2:11-cm-0011 O-UA Document 8 Filed 09/08/11 Page 1 of 8 Page 10 #:24 

1 ANDRE BIROTTE JR. 

United States Attorney 

2 ROBERT E. DUGDALE 

Assistant United States Attorney 

3 Chief, Criminal Division 

STEVEN R. WELK (CBN 149883) 

4 Assistant United States Attorney 

Chief, Asset Forfeiture Section 

., 

., S , 

I VI ,." 

.." 

5 Federal Courthouse, 14th Floor 

312 No. Spring Street 

I 

I 

~ 

l:>or:-.,. , ;:;-:z':"" co Q~--l 

6 Los Angeles, California 90012 

Telephone: (213) 894-6166 

7 Facsimile: (213) 894-7177 

Email: Steven.Welk@usdoi.gov 

Attorneys for Plaintiff 

United States of America 

,." :;') 

""'0-" 1"'1"1-.,('": 

"'<>-1 »0 

roO 

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<".) 

10 UNITED STATES DISTRICT COURT 

11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 

12 WESTERN DIVISION 

13 IN THE MATTER OF THE SEIZURE) 

OF THE INTERNET DOMAIN NAME ) 

CR MISC. NO. 11-00110 

14 "DAJAZ1. COM" ) EX PARTE APPLICATION FOR ORDER 

EXTENDING FOR SIXTY DAYS THE 

DEADLINE FOR FILING COMPLAINT 

FOR FORFEITURE; MEMORANDUM OF 

POINTS AND AUTHORITIES; 

DECLARATION OF SPECIAL AGENT 

ANDREW T. REYNOLDS 

) 

15 ) 

) 

16 ) 

) 

17 ) 

) 

18 ) [UNDER SEALI 

19 

20 

21 

22 

23 

28 

---------------------) 

The United States of America ("the government") hereby 

applies to this court for an order extending for sixty days the 

time within which to file a civil forfeiture complaint against 

the asset listed above (the "seized asset"), which was seized on 

November 24, 2010. This application is made pursuant to the 

Court's inherent authority to control its dockets and 18 U.S.C. 

§ 983. 
42 


74504J1-2.eps

Case 2:11-cm-0011 O-UA Document 8 Filed 09108111 Page 2 of B Page 10 #:25 

1 As explained below, there is an on-going criminal 

2 investigation concerning the above-listed asset that arises out 

3 of the same facts which supported the seizure of the asset. See 

4 Reynolds Decl. There is currently a deadline of September 13, 

5 2011 for the filing of a civil forfeiture complaint against the 

6 asset.' However, the government believes that the filing of a 

complaint while the criminal investigation is on-going will have 

an adverse effect on the investigation. The government requests 

9 a sixty-day extension of the filing deadline (to November 11, 

10 2011) in order to protect the criminal investigation. 

11 This application is made ex Darte and under seal so as not 

12 to expose the existence and scope of the criminal investigation, 

13 which would likely be seriously jeopardized by the filing of a 

14 forfeiture complaint. 

15 DATED: September 8, 2011 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Respectfully submitted, 

ANDRE BIROTTE JR. 

United States Attorney 

ROBERT E. DUGDALE 

Assistant United States Attorney 

Chief, crimina~~ 

;?fib R {(!II//L 

STEVEN R. WELK 

Assistant United States Attorney 

Chief, Asset Forfeiture Section 

Attorneys for Plaintiff 

United States of America 

26 ' on July 18, 2011, the Court granted the government's ex 

parte application to extend the time within which to file a civil 

·27 forfeiture complaint from July 15, 2011 to September 13, 2011. 

See, In the Matter of the Seizure of the Internet Domain Name 

t 8 "DAJAZl.com" CR <-lisco No. 11-00110. 

2 
43 


74504J1-3.eps

1 

Case 2:11-cm-0011 O-UA Document 8 Filed 09/08/11 Page 3 of 8 Page ID #:26 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. 

INTRODUCTION AND STATEMENT OF FACTS 

4 By this application, the United States of America ("the 

government") requests a sixty (60) day extension of the deadline 

to file a judicial complaint for forfeiture against the domain 

name "DAJAZl.com," which was seized pursuant to a federal seizure 

. 8 warrant on November 24, 2010 in connection with what is believed 

9 to have been serious and repeated violations of federal law 

10 relating to the distribution of copyrighted intellectual property 

11 (the "seized asset" or "domain name"). 

12 Following the seizure of the domain name by agents of 

13 Immigration and Customs Enforcement ("ICE"), the Department of 

14 Homeland Security, Customs and Border Protection ("CBP" l 

15 initiated administrative forfeiture proceedings against it. The 

16 owner of the domain name, Andre Nasib, submitted a claim in the 

17 administrative proceedings, requesting that the matter be 

18 referred to the U.S. Attorney's Office in this district (the 

19 "USAO") for judicial forfeiture proceedings. In the meantime, 

20 ICE continued its investigation. 

21 The USAO has determined that further criminal investigation 

22 is appropriate and so the investigation is still on-going. The 

23 current deadline for the filing of a civil forfeiture complaint 

24 is September 13, 2011. The governing statute, discussed below, 

25 authorizes the court to extend the filing deadline where the 

26 filing of the complaint would have an adverse effect on a related 

27 criminal investigation. The requested deadline would be November 

28 

3 
44 


74504J1-4.eps

Case 2: 11-cm-0011 O-UA Document 8 Filed 09/08111 Page 4 of 8 Page 10 #:27 

11, 2011. 

2 II. 

ARGUMENT 

4 There are two potential grounds for granting the relief 

requested by the government here. First, the Court possesses the 

inherent authority to extend filing deadlines because it has the 

power to control the disposition of the causes on its docket with 

economy of time and effort for itself, counsel and litigants. 

9 See, ~, Landis v. North American Co., 299 U.S. 248, 254, 57 S. 

10 Ct. 163, 81 L.Ed 153 (1936). In addition, 18 U.S.C. § 983(a), 

11 which governs the procedural aspects of federal administrative 

12 and jUdicial civil forfeiture proceedings, provides specific 

13 authority for the extension of a deadline for the filing of a 

14 judicial civil forfeiture complaint. Section 983(a) (3) (A) 

15 provides that 

16 Not later than 90 days after [an administrative] 'claim 

has been filed, the Government shall file a complaint 

17 for forfeiture[,] ... except that a court in the 

district in which the complaint will be filed may 

18 extend the period for filing a complaint for good cause 

shown or upon agreement of the parties. 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Generally speaking, where the government seizes property for 

forfeiture, the seizing agency is required to send notice of the 

seizure and the agency's intent to commence administrative (i.e., 

non-judicial) forfeiture proceedings within 60 days. An owner of 

the seized property who wishes to contest the forfeiture may 

submit an administrative claim to the agency. which filing has 

the effect of suspending the administrative proceedings so that 

the matter may be referred to the USAO of the district in which 

the seizure occurred. The quoted provision above requires the 

4 
45 


74504J1-5.eps

Case 2: i1-cm-00ll O-UA Document B Filed 09/08/11 Page 5 of 8 Page 10 #:28 

1 government to file a complaint within 90 days of the submission 

2 of the administrative claim. 

Here, claimant Nasib submitted an administrative claim on 

4 February 15, 2011, making the government's complaint due on May 

5 16, 2011. However, the filing of a complaint would require the 

6 government to reveal, not only in the complaint itself but in the 

7 disclosures that necessarily would follow, information concerning 

8 the on-going criminal investigation. The disClosure of that 

9 information would likely have an adverse effect on the 

10 investigation, if for no other reason than it would indicate the 

11 direction and scope of the investigation. 

12 Under the circumstances, good cause exists for the requested 

13 sixty day extension. While "good cause" is not defined in § 983 

14 (a) (3) (A), another extension provision in § 983 (authorizing 

15 extension of the administrative notice deadline) includes 

16 specific examples of proper bases for an extension, including 

17 situations where sending notice to the owner "may have an adverse 

18 result, including ... seriously jeopardizing an investigation. 

19 § 983 (a) (1) (D) (v). ' 

20 

21 '18 U.S.C. § 983 (a) (1) (C) and (D) provide: 

22 Ie) Upon motion by the Government, a court may extend the 

period for sending notice under subparagraph (A) for a 

23 period not to exceed 60 days, which period may be further 

extended by the court for GO-day periods, as necessary, if 

24 the court determines, based on a written certification of a supervisory official in the headquarters office of the 

25 seizing agency, that the conditions in subparagraph (D) are 

present. 

26 

(D) The period for sending notice under this paragraph may 

27 be extended only if there is reason to believe that notice 

may have an adverse result, including28 
46 


74504J1-6.eps

Case 2:11-cm-00110-UA Document 8 Filed 09/08/11 Page 6 of 8 Page ID #:29 

1 For the foregoing reasons, the government requests that the 

2 court grant a sixty day extension (from September 13, 2011 to 

3 November 11, 2011) of the time within which the government is 

4 required to file a forfeiture complaint against the seized asset. 

1,,5 DATED: September 8, 2011 

. 6 

Respectfully submitted, 

ANDRE BIROTTE JR . 

United States Attorney 

7 ROBERT E. DUGDALE 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Assistant United States Attorney 

Chief, Criminal Division 

WELK 

Assistant United States Attorney 

Chief, Asset Forfeiture Section 

Attorneys for Plaintiff 

United States of America 

(i) endangering the life or physical safety of an 

individual; 

(ii) flight from prosecution; 

(iii) destruction of or tampering with evidence; 

(iv) intimidation of potential witnesses; or 

(v) otherwise seriously jeopardizing an investigation 

or unduly delaying a trial. 
47 


74504J1-7.eps

Case 2:11-cm-OOl iO-UA Document 8 Filed 09/08/11 Page 7 of 8 Page ID #:30 

DECLARATION OF SPECIAL AGENT ANDREW T. REYNOLDS 

I, Andrew T. Reynolds, declare: 

1. I am a Special Agent with the U.S. Department of Homeland Security (DHS), 

Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI) and am 

currently assigned to the Office of the Special Agent in Charge, Los Angeles (SACILA) 

Intellectual Property Rights group. 

2. This declaration is submitted in support of the Government's ex parte application for a 

court ordered extension of the 60 day notice period, as required by 18 U.S.c. § 983(a)(I)(A)(i). 

The facts stated below are within my personal knowledge and I believe all the information to be 

true. This affidavit does not purport to set forth all of my knowledge of, or investigation into, 

this matter. 

3. HSI initiated an investigation into websites that allow the unauthorized downloading 

of copyrighted music and motion picture files by members of the general public. The domain 

name "DAJAZ I.com" was seized pursuant to a federal seizure warrant on or about November 

24, 2010 in connection with what the investigation revealed to be serious and repeated violations 

of federal law relating to the distribution of copyrighted intellectual property. 

4. HSI continues its investigation in locating records of material, purported to be 

infringing and removed due to its rights-holder request, connected to DAJAZl.com; identifying 

revenue associated with the DAJAZI.com website; identifying DAJAZl.com administrator(s}, 

associates and business partners; and locating and evaluating material being distributed by 

DAJAZ I.com associates and affiliates. 

5. A sampling of content obtained from the DAJAZLcom website and its purported 

affiliate websites was submitted for rights holder evaluation and has yet to be returned to HSI, 

SAC/LA. Additionally, a representative with the Recording Industry Association of America 

(RIAA) has slaled that he will provide a very comprehensive statement to ICE's and CEP's 

outstanding questions, in coordination with corresponding rights holders, which will be 

forthcoming in approximately 30 days. 
48 


74504J1-8.eps

Case 2: l1-crn-0011 O-UA Document 8 Filed 09108/11 Page 8 of 8 Page ID #:31 

6. The filing ofa civil i'Hfeilure complain while the criminal investigation is on-going 

will have an adverse effect on the in\'estigalion. Persons being investigated would learn the 

nam.e, scopc. Illld history oflhe Govcrnment"s investigmion. Individuals connected to this 

investigation could flee, destroy e,·idcnce of Iheir criminal activity. dissipate assets, or othcnvise 

obstrucllhe purposes of this on-going investigation. Moreover. the disclosures required by the 

initiation ofa civil f[}ffeitme aclion w"uld make it dimeull to continue the coven elements oflhe 

investigation. 

7. I declare under penalty ofpcrjury undeT the laws of the U.S. that the loregoing is true 

and correct. 

Executed on September 07.2011. al Los Angeles, Calilbrnia ._-r· 

"-~;~~;-'-'--

Aflatevrr:' Reyrmt<ls:Spee.aJ Agent 

Homeland Security lnve.ligations 

lmmigmtion and Customs Enforcement 
49 


74504J2-1.eps

OR\G\N~\[ 

United States District Court ___ --'c""E"'N-'"T'-'RA~L"_ ___ DISTRICTOF ___ _'C""A""L""I"'F"'O"'RN"_'_"IA"__ __ 

In the MatteI" of the Seizure of {Add ..... ftrBri<rri ... <riJ'j;.n.,.-prop<01yorp .. 'n~t.b.,,;Z<d) 

THE FOLLOWING DOMAIN NAMES, APPLICATION AND AFFIDAVIT 

RAPGODFATHERS.COM, FOR SEIZURE WARRANT 

TORRENT~FINDER.COM, 

Rr.1X4U.COM, 

DAJAZl.COM, and 

ONSMASH.COM 

CASE NUMBtO ~ 282 2M 

1, ANDREW REYNOLDS, being duly sworn depose and say: 

I 

believe 

am 11 Special Agent with the Homeland Security Investigations, Immigration and Customs Enforcement and have reason to that in the I CENTRAL District of CALIFORNIA there is now~ce~~ a eer ain person or property, namely the following Internet domain names; (d.mibo thtp .... onorprol""'J' ID ..... ".dj 

RAPiioD~A~:f:s. D 

Lu 

CJ 

o 

o 

...J 

1580jW'E 24''.:;S&ect, hingtoJl 98008; 

OIQ': ::.-~ ! 

TOR;U:NT-~~ER.t:OM 

"1·"~'""-'AIf""_~ ... ~ . ..v ___ _ 

Road;ttuite'2~~cottidale,Arizona 

registered with Blue Razor Domains, Inc., which has iUi i)eFrd uarters at 14455 Nortm~""'~,~ ...,. 85260; ~ i' ~ ._ + :;> :"'--". \ !k FILED 

24th 

RMAie.CO~re·gisteied ~eet, Bel.levue, Washington with Enom, 98008; Inc. which has its headquarters lit 15801 NE i 

I '!} 

".'.:. T". " "'""] 0;-.. " 

DAJAZJ.COM , ~: .. 1 registered with Fast Domain, Inc., which has its headquarters at i :::?l NOV 1 7 21JIO 1958 Soulh 950 East, Provo, Utah 84606; and i. "11 1 .:-~ ONSMASH.COM registered with Godaddy.com, Inc., which has its headqllarters at ) jJ CEN Ii l JSTRICT OF CAUFORNIA 14455N. Hayden Road, Suite 219, Seottsdale, Arizuna 85260, .~__ DE PUTY 

subject to seizure and civil forfeiture under 18 U.S.C. §§ 2323(a)(I)(13) and § 981(b); 

concerning a violation of Title 17, United States Code, Section 506(a) and Title IS, United States Code, Section 2319. The facts to support a finding of Probable Cause for issuance of a Seizure Warrant are as follows: Continued on the attached sheet and made a part hereof. L Yes No 

Sworn to before me, and subscribed in my presence 

/I 17 IV Date 

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los Angeles California ~l,Ll..I.lY tt-lV'ESTlM'\1ONS 

Ity and State 

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Hon.Mac ru'etA.Na Ie U.S.Ma istrat Jud e NOV 2 m~ a. ~~&- BY_~ 

ignature ;::JdiciI;Offiee::- U 
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A F F I D A V I T 

I, Andrew Reynolds, being duly sworn, hereby state as 

follows: 

r. 

INTRODUCTION 

1. I am employed as a Special Agent ("SA") with 

the Department of Homeland Security ("DHS"), United States 

Immigration and Customs Enforcement ("ICE"), Homeland security 

Investigations ("HSI JI ) and have been so employed since August 

2009. I am currently assigned to the Office of the special Agent 

In Charge, Los Angeles ("SAC/LA") Intellectual Property Rights 

("IPRJI ) group. While a SA with ICE HIS, I have investigated and 

assisted other agents in investigating numerous investigations 

involving violations regarding fraud and Intellectual Property 

Rights (I?R). Prior to my employment with ICE HSI as a SA, I 

served as a Student Trainee (Criminal Investigator) with ICE for 

approximately one year at the SAC/LA Border Enforcement Security 

Task Force (BEST) f SAC/LA Narcotics and Smuggling groups. My 

duties included assisting agents in investigating narcotics 

trafficking and human smuggling violations. Furthermore as an ICE 

student trainee, I participated and assisted other state and 

federal agencies in a wide variety of investigations. 
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II. 

PURPOSE OF AFFIDAVIT 

2. I make this affidavit in support of the government's 

application, pursuant to Title lS, United States Code, Sections 

2323{a) (1) (A)-(B) and 981, for warrants to seize the following 

property (in this case, website domains) ; 

a. The domain name WWW.RAPGODFATHERS.COM. registered 

with Enam, Inc., which has its headquarters at 

15801 NE 24th Street, Bellevue, Washington 9800Bi 

b. The domain name WWW.TORRENT-FINDER.COM registered 

with Blue Razor Domains, Inc., which has its 

headquarters at 14455 North Hayden Road, Suite 

226, scottsdale, Arizona 85260; 

c. The domain name WWW.RMX4U COM registered with 

Euam, Inc. which has its headquarters at 15801 NE 

24th Street, Bellevue, Washington 98008; 

d. The domain name WWW.DAJAZ1.COM. registered with 

Fast Domain, Inc., which has its headquarters at 

1958 South 950 East, Provo, Utah 84606j and 

e. The domain name WWW.ONSMASH.COM. registered with 

Godaddy.com, Inc., which has its headquarters at 

14455 N. Hayden Road, Suite 219, Scottsdale, 

Arizona 85260 

(collectively referred to as "THE SUBJECT DOMAIN NAMES"). 

3. The procedure by which the government will seize the 

SUBJECT DOMAIN NAMES is described in Attachment A hereto and 

below. 
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4. As set forth below, there is probable cause to believe 

that the SUBJECT DOMAIN NAMES are property used, or intended to 

be used to commit or facilitate criminal copyright infringement, 

in violation of 18 U.S.C. § 2319 and 17 U.S.C. § S06(a), and 

are subject to seizure and forfeiture pursuant to 18 U.S.C. 

232] (a) . 

5. The facts set forth in this affidavit are based upon my 

personal observations, my training and experience, and 

information and reports obtained from other agents and 

individuals. This affidavit is intended to show merely that 

there is probable cause for the requested seizure warrants and 

does not purport to set forth all of my knowledge of or 

investigation into this matter. 

III. 

TECHNICAL BACKGROUND 

6. Based on my training and experience and information 

learned from others, I am familiar with the following terms: 

a. Internet Protocol Address: An Internet Protocol 

address (IP address) is a unique numeric address used by 

computers on the Internet. An IP Address is a series of four 

numbers, each in the range 0-255, separated by periods (~, 

121.56.97.178). Every computer attached to the Internet must be 

assigned an IP address so that Internet traffic sent from and 
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directed to that computer may be directed properly from its 

source to its destination. An IP address acts much like a home 

or business street address -- it enables computers connected to 

the Internet to properly route traffic to each other. The 

assignment of IP addresses to computers connected to the Internet 

is controlled by ISPs. 

b. Domain Name: A domain name is a simple, easy-toremember way for humans to identify computers on the Internet, 

using a series of characters (~, letters, numbers, or other 

characters) that correspond with a particular IP address. For 

example, "usdoj.gov" and "cnn.com" are domain names. 

c. Domain Name System: The domain name system 

("DNS") is, among other things, a hierarchical convention for 

domain names. Domain names are composed of one or more parts, or 

"labels," that are delimited by periods, such as 

.. www.example.com ... The hierarchy of domains descends from right 

to left; each label to the left specifies a subdivision, or 

subdomain, of the domain on the right. The right-most label 

conveys the "top-level" domain. For example, the domain name 

.. www.example.com .. means that the computer assigned that name is 

in the ".com" top-level domain, and the "example" second-level 

domain, and that same computer is the web server. 

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d. Domain Name Servers: DNS servers are computers 

connected to the Internet that convert, or resolve, domain names 

into Internet Protocol ("IP") addresses. For each top-level 

domain (such as ".com")r there is a single company, called a 

"registry," that determines which second-level domain resolves to 

which IP address. For example, the registry for the ".com" and 

".net" top-level domains is VeriSign, Inc., which has its 

headquarters at 21355 Ridgetop Circle, Dulles, Virginia. 

e. Registrar & Registrant: Domain names may be 

purchased through a registrar, which acts as the intermediary 

between the registry and the purchasers of the domain name. The 

individual or business that purchases, or registers, a domain 

name is called a "registrant." Registrants control the IP 

address, and. thus the computer, to which their domain name 

resolves. Thus, a registrant may easily move a domain name to 

another computer anywhere in the world. Typically a registrar 

will provide a registrant with the ability to change the IP 

address a particular IP address resolves through an online 

interface. Registrars typically maintain customer and billing 

information about the registrants who used their domain name 

registration services. 
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f. Internet Service Provider i"ISP"): Many 

individuals and businesses obtain access to the Internet through 

businesses known as Internet Service Providers (trISPstr). ISPs 

provide their customers with access to the Internet using 

telephone or other telecommunications lines; provide Internet email accounts that allow users to communicate with other Internet 

users by sending and receiving electronic messages through the 

ISPrs servers; remotely store electronic files on their 

customers r behalf; and may provide other services unique to each 

particular ISP. ISPs maintain records pertaining to the 

individuals or businesses that have subscriber accounts with 

them. Those records often include identifying and billing 

information, account access information in the form of log files, 

e-mail transaction information, posting information, account 

application information, and other information both in computer 

data and written record format. 

g. WhoIs query: A standardized query or method for 

identifying a particular computer on the Internet by obtaining 

information from a registry database that identifies the 

registrar for a particular IP address. For example, if you enter 

a domain name such as trmicrosoft.com,1I Whois will return the name 

and address of the domainrs owner (in that case, Microsoft 
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Corporation). A "Whois" query can be found on numerous different 

websites, including www.domaintools.com. 

h. ~: The term "Cam" is a term used to describe 

multimedia video and audio content which is illegally recorded in 

a cinema or theater where films are shown. After the content is 

illegallY recorded, the multimedia video and audio is then 

enhanced in preparation for illegal distribution. 

i. Screener: A screener, also known as a work print, 

normally refers to a Digital Video Disc ("DVD") containing a full 

length motion picture that is specifically prepared for and sent 

to movie critics and censors for reviewing purposes before that 

content is available to the public. It is common practice for 

"screener" footage to contain watermarks or subtitles which 

reflect the copyright holder's ownership over the material. 

Screeners, however, are sometimes illegally obtained and copied 

or "downloaded" to digital format to allow for illegal 

distribution. When diverted before or during a motion picture's 

theatrical release, a screener DVD provides a significantly 

higher quality of pirated motion picture content compared to 

content that is obtained through the use of a camcorder in a 

movie theater. This level of quality is normally not available 

until the official release date of the motion picture's DVD, 
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which normally occurs between 60 days and six months after 

theatrical release. 

j. Internet Forum: An "Internet forum," "message 

board," or "forum" is an online discussion webpage where people 

can hold conversations in the form of posted messages. They 

differ from chat rooms in that messages are stored on the server 

or computer of the website that displays them. Depending on the 

access level of a user and/or the forum set-up, a posted message 

might need to be approved by an administrator before it becomes 

visible to the general public. It is common for forums to 

require that the general public register with the website in 

order to become a forum "user" who is able to post messages in 

the forum. Forums have their own language; e.g. a single 

conversation is called a "thread." A forum is hierarchical or 

tree-like in structure: forum - subforum - topic - thread -

reply. 

I I 

II 

II 

II 

II 

II 

II 
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IV. 

SUMMARY OF INVESTIGATION AND EFFECT OF INTERNET PIRACY 

7. This application arises from an ongoing nation-wide 

investigation into websites that illegally distribute copyrightprotected content, particularly movies, songs, albums and 

computer software, over the Internet. 

8, I know from my participation in the investigation that 

the Motion Picture Association of America (MPAA) is an industry 

trade group that represents various major United States motion 

picture studios that own the rights to the movies that are 

discussed in this affidavit, and provides investigative analysis 

and evaluation services for products owned and maintained by 

their member representatives. According to statistics compiled 

by the MPAA for 2008, the motion picture and television 

production industries (the "industry") employ approximately 2.4 

million people and paid over $140 billion in total wages. Over 

450,000 of those jobs are in related businesses that distribute 

motion pictures and television shows to consumers. The industry 

employs more than 95,000 businesses in alISO states, businesses 

such as caterers, dry cleaners, florists, hardware and lumber 

suppliers, and retailers, to name a few. Approximately $15.7 

billion in federal taxes were collected in 2008 as a result of 

the industry's activities. 
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9. Based on my participation in the investigation, I have 

learned that there is a "domino effect" to online piracy. Online 

piracy deprives the industry of revenue derived from the 

"downstream" distribution of movies, software, music and 

television shows after those products are released in theaters or 

on television. Downstream revenue funds are used, among other 

things, to further investment in the industry and to fund pension 

and healthcare plans for unionized workers in the industry. 

According to the MPAA, 75% of a motion picture's revenue comes 

from markets after the initial theatrical release, and more than 

50% of scripted television revenues are generated after the first 

run on television. Domestic industries lose approximately $25.6 

billion a year in revenue to piracy, the domestic economy loses 

nearly 375,000 jobs either directly or indirectly related to 

online piracy, and American workers lose more than $16 billion in 

annual earnings as a result of copyright infringement. 

10. As a result of statistics and yearly reports from the 

International Federation of the Phonographic Industry (IFPI)l, I 

lThe IFPI represents the interests of international musical 

artists and recording industry ("member") companies and firms. 

The IFPI's mission is to promote the value of recorded music by 

safeguarding the rights of record producers through international 

anti-piracy coordination, to include the sUbmission of cease and 

desist (C & D) requests to violators and involved third parties. 

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have also learned that in 2008, the digital music business 

internationally grew by approximately 25 percent to $3.7 billion. 

Digital platforms now account for about 20 percent of recorded 

music sales up from 15 percent in 2007. The recorded music 

industry generates a greater proportion of its revenues through 

digital sales than the film industry by a five to one ratio. The 

united States is the world leader in digital music sales, 

accounting for some 50 percent of the global digital music market 

value. Single track downloads crossed the one billion mark for 

the first time in 2008, totaling 1.1 billion; and digital album 

sales totaled 66 million. IFPI estimates that more than 40 

billion files were illegally file-shared in 2008, giving a piracy 

rate of around 95 percent. 

11. Many of the websites that are involved in the illegal 

distribution of copyright-protected content over the Internet may 

be divided into three classes: "linking" websites, "cyberlocker" 

websites and "Bit torrent" websites. 

II 

II 

II 

I I 

II 

II 

11 
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12. I know from my participation in the investigation that 

"linking" websites generally collect and catalog links2 to files 

on third party websites that contain illegal copies of 

copyrighted content, including movies, television shows, software 

and music.' Linking websites organize these links by, for 

example, movie title or genre, to make them easily accessible. 

Users simply click on a link to begin the process of downloading 

or streaming (real-time viewing/listening) to their own computer 

illegal copy of a movie, television show, software program or 

music file from the third party website at which it is stored. 

Linking websites are popular because they allow users to quickly 

browse content and locate illegal copies that would otherwise be 

more difficult to find through manual searches of the Internet. 

2 For purposes of this affidavit, a "link" is code which 

specifies a particular webpage or file on the Internet. If 

clicked on by a user, a link can, for example, bring up the 

relevant web page in an Internet browser or run a program. For 

example, 

''http://movies.nytimes.com/2010/06/18/movies/1Btoy.htrnl?scp=l&sq= 

toy%20story%203&st=cse" is a link to a webpage containing the New 

York Times' review o.f the movie "Toy Story 3. If A "link" may also 

be referred to as a "Uniform Resource Locator" or "URL.fI 

3 I know from my participation in the investigation that illegal 

copies of motion pictures are frequently made by surreptitiously 

videotaping movies while they are being shown in theaters. These 

infringing copies are then quickly distributed over the Internet, 

sometimes within hours of a movie's initial release. Illegal 

copies of motion pictures are also made by illegally copying 

authorized DVD's of those movies. 

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Linking websites also often allow users to post links to 

infringing content. Some linking websites are "forum-based," 

meaning that the links to pirated content are contained in the 

website's Internet forum. 

13. I also know from my participation in the investigation 

that the third party websites on which the illegal copies of 

movies and television shows are stored for later downloading or 

streaming are sometimes referred to as "cyberlocker" websites. 

Cyberlockers allow users to upload infringing content and often 

feature high-capacity data connections that allow users 

conveniently to download or stream that content relatively 

quickly. Cyberlocker websites also may allow users to search for 

and download specific content directly without first going 

through a linking website. Finally, a cyberlocker may use 

different servers to host its webpage, receive uploads, and 

handle downloading or streaming content. Each computer server 

connected to the Internet is identified by one or more IP 

addresses. 

14. I also know from my participation in the investigation 

that the websites through which illegal copies of movies and 

television shows are shared and transferred are known as "Bit 

torrent" websites. A Bit torrent (referred to in short as 

"torrent" or "torrent file") is a files distribution system used 

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for transferring files across a network of people. As you 

download a file to your computer, Bit torrent makes what you 

download available for other people to download straight from 

your computer; when multiple people are downloading the same file 

at the same time, they provide (or "upload") pieces of the file 

to each other. Bit torrent pieces together the file you are 

downloading, so it does not matter whether you have the first 

part of the file or the last part of the file, or in what order 

you download it. As you continue to retrieve the file, Bit 

torrent also prioritizes how to connect people to one another for 

file sharing based on the pieces of the file they have obtained. 

For example} a person with 98 percent of the file done is 

directed to the people with the 2 percent of the file they still 

need. Bit torrent websites allow users to upload infringing 

content and often feature high-capacity files while allowing 

users conveniently to download or stream that content relatively 

quickly from large numbers of other people also downloading the 

file. Bit torrent websites also may allow users to search for 

and download Bit torrent files through a linking site. Finally} 

a Bit torrent website may use different servers to host its 

webpage, receive uploads, and handle Bit torrent content. Each 

computer server connected to the Internet is identified by one or 

more IP addresses. 

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15. This investigation has identified five linking, 

cyberlocker or Bit torrent websites that are among the most 

popular such websites on the Internet for distributing illegal 

copies of movies, television shows, software and music files. 

These websites are: (1) RapGodFathers.com (hereinafter 

llRAPGODFATHERS.COM"); (2) torrent-finder. com (hereinafter 

"TORRENT-FINDER.COMII, (3) RMX4U.COM (hereinafter IIRMX4U.COMII ) t 

(4) dajazl.com (hereinafter "DAJAZ1.COWf) t and (5) onsmash.com 

(hereinafter 1I0NSMASH.COW'). Based on the facts set forth below, 

I believe that each of these websites are actively facilitating 

the distribution of pirated content. Based on the investigation, 

it appears that website administrators and/or representatives 

from each of these five websites supply access to, and 

advertising for, the pirated content via their websites and/or 

provide access for any Internet users to download such pirated 

content. 

II 

I I 

I I 

II 

I I 

I I 

II 

15 
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v. 

PROBABLE CAUSE FOR SEIZURE AND FORFEITURE 

16. During the course of this investigation, I have 

reviewed the below linking sites, Bit torrent sites cyberlockers 

using computers located in Long Beach, in Los Angeles County, 

California, and have used those websites to download multiple 

illegal copies of copyrighted motion pictures, software and 

music, as described below. 

The RAPGODFATHERS.COM Website 

A. General Description 

17. Based on my review of webpages that are available at 

the RAPGODFATHERS,COM website, I have learned the fOllowing: 

a. RAPGODPATHERS.COM is a forum-based "linking" 

website.. According to the site's "Terms of Service" page: 

The service is offered to you conditioned on your 

acceptance without modification of the terms, 

conditions, and notices contained herein. By visiting 

and using RapGodFathers.com or any of its affiliate 

sites and services, you are acknowledging your full 

compliance to the terms listed here .. 

RapGodFathers.com is based on its links to third party 

sites. The linked sites are not under the control of 

RapGodFathers.com and RapGodFathers.com is not 

responsible for the content of any linked sites or 

links contained in a linked site. . .The links are 

gathered automatically . 

We do not manually check every file for copyright 

issues, and therefore we do not assume any 

responsibility or liability for the contents of the 

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file, from completeness to legalities including, but 

not limited to copyright issues. However, 

RapGodFathers.com is sensitive to the rights of 

copyright owners. You may not use this site to 

distribute or download any copyrighted material in 

which you do not have the legal rights to do so ... 

RapGodFathers.com user agrees that RapGodFathers.com is 

hereby absolved from any and all liabilities. Losses, 

costs and claims, including attorney's fees asserted 

against RapGodFathers.com, its agents, officers, 

employees, or associates, that may arise or result from 

any service provided, performed, be agreed to be 

performed by RapGodFathers.com. 

b. Based on my participation in the investigation and 

my discussion with MPAA and RlAA representatives, I know that 

despite the disclaimer displayed in its "Terms of Service" page, 

the webpage still lists terms which indicate the production and 

distribution of pirated content. 

c. On September 30, 2010 and October 5, 2010, I 

accessed the homepage of RAPGODFATHERS.COM and learned that the 

website contained several sections including: "News," 

"Downloads T" "Singles/ II "RGF4 TV," and "Forum." As set forth in 

further detail below, by further searching this website, it 

appeared to me that the website contained links to thousands of 

songs and hundreds of movies. 

4 "RGF" is apparently an acronym for RapGodFathers. 

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d. RAPGODFATHERS.COM also included an Internet forum, 

located at WWW.RAPGODFATHERS.COM/FORUM. which consisted of 

several subforums, topics and descriptions including the 

following: 

Download Zone 

The Studio: Get your latest music downloads or 

share your links with the community. 

Other Genres: Post your pop, rock, reggae, techno 

or any other types of music here. 

The Lab; Download Applications, Games, TV Shows, 

Books, etc. 

Movie Downloads 

Champagne Room; The champagne room, otherwise 

known as the XXX porn room I picture room (18+ 

ONLY) . 

Request Spot; Drop by to request anything you 

want. Minimum 50 posts required. 

e. Upon further examination of the "Download Zone" 

subforum, I clicked on the link "The Lab,1I which consisted of the 

following topics and descriptions: 

Applications: Get all your applications bootlegs 

here. (Emphasis added.) 

Games: Your source for games, of course all 

bootlegged. (Emphasis added.) 

TV 

18. 
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f. Based on my training and experience, I know 

that the above-referenced terms "bootlegs" and "bootlegged" refer 

to pirated material, i.e. illegally copied multimedia that is 

copyrighted. Based on my training and experience, only website 

administrators and other Internet users with administrative 

control of the RAPGODFATHERS.COM website could have created these 

subsections and description titles listed on the website. 

g. Advertisements appear on various portions of the 

website, including on pages that are accessed, as pop-up and 

banner advertisements. I know from my participation in the 

investigation that companies which place advertisements on a 

website typically pay a fee to the website's owner(s) based on, 

among other things, the number of website users who view the 

advertisement, as well as the number of times users click on the 

advertisement. Both of these figures depend on, among other 

things, the website's popularity and its overall number of users. 

B. Pirated Songs via RAPGODFATHERS.COM 

18. Upon further examination of the "Downloads" section of 

the homepage, it contained a directory of copyrighted music 

albums which users could browse and download, listed in date 

order when they were uploaded to the website. (The most recent 

ones are first on the list.) For example, on November 9, 2010, 

the first five album titles listed on the RAPGODFATHERS.COM 

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website were: (1) Nelly - "5.0," (2) Kanye West - "My Beautiful 

Dark Twisted Fantasy," (3) Rihanna - "Loud," (4) Trey Songz -

"Trigga Trey," and (5) Lil B - "Red Flame." 

a. Each album selection was linked to a corresponding 

web page which contained the album's title, a photograph of the 

album cover or artist, and a track list of all the song titles 

contained in the album. Below the track list was a download link 

that transferred the user to a cyberlocker website where the user 

could illegally download the corresponding album. The 

cyberlocker listed the size of the file, the user who uploaded 

the file to the cyberlocker, the date the file was uploaded, the 

number of times the file was downloaded by others, and a 

description of the file. On November 14, 2010, the directory 

contained in the "Downloads" section of RAPGODFATHERS.COM was 93 

pages long, with 50 links per page, meaning that the website 

appeared to contain more than 4,600 albums available for download 

in its directory. 

b. Based on my review of public records listings, as 

well as my conversations with representatives of the Recording 

Industry Association of America (RIAA)5 and my review of public 

5 The RIAA represents large companies that oversee the recording 

and distribution of music in the US. The RIAA protects the 

copyrighted content of the above-referenced music recording and 

distribution share-holders by working with law enforcement to 

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recordings listings and release dates, I know that several of the 

above-referenced albums were yet to be released, were 

copyrighted, and that the copyright holders did not authorize 

their third party distribution over the Internet by 

RAPGODFATHERS.COM or any other website. 

C. Pirated Movies via RAPGODFATHERS.COM 

19. On October 15, 2010, I viewed the RAPGODFATHERS.COM 

forum and explored the subforum "Movie Downloads," focusing on 

the topic titled "DVDScr/RS/Screener,,6 (emphasis added) . 

20. I viewed the "DVDScr/RS/Screener" topic, which appeared 

to contain hundreds of movies available for download, and located 

a number of forum threads which were isolated from the other 

threads in the forum. (A screen shot of this page, as it existed 

on October 15, 2010, is attached hereto as Exhibit A.) These 

isolated threads were marked with the word "sticky," a term used 

to differentiate threads which are set apart at the top of the 

forum and do not defer to newly posted threads or postings. 7 

promote copyright protection and disruption of internet piracy 

organizations. 

6 Again, as noted above, based on my training and experience, 

only website administrators and other Internet users with 

administrative control of the RAPGODFATHERS.COM website could 

have created this forum and its description title. 

7 Normally, in the context of website forums, as new posts are 

made, they are posted above older posts, in reverse chronological 

order, based on the date the posts are created. In other words, 

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Administrative access is required to designate a forum post or 

thread as "sticky," and six out of seven of the isolated threads 

marked \\sticky" had been created by the forum user "T." Below 

the name liT" was the title "v.i.p." highlighted in orange, unlike 

the titles of normal users which are not highlighted in color and 

are not denoted "v.i.p." The "signature" B of each post by "Til 

contained the phrase "will get you banned" in red and depicted a 

post by the forum user "JrRyder88" in which "JrRyder88" had 

posted the gibberish "sadfsadf" as a substitute for the "thanks" 

required to view download links. under the name "JrRyder88" was 

the word "Banned" indicating that user JrRyder88 had, in fact, 

been banned from that web forum. Administrative access is 

required in order to "ban" forum users. 

as a new post is made, the older posts "defer" to the new post 

and move downward on the page. However, if a post is marked 

"sticky," it does not move and remains at the top of the page. 

Only an administrator of the website forum or an Internet user 

with administrative control of the website forum can designate a 

post as "sticky." 

This is similar to the "signature" of an email user, in which 

every time the person writes an email, his or her name, title and 

contact informa~ion is displayed at the bottom of the email. But 

here, the signature of "T" is not his contact information, but 

rather, a copy of another user's post, JrRyder88, in which 

JrRyder88 didn't follow the rules of RAPGODFATHERS.COM by saying 

"thanks" and thus, he was banned from the website, thus 

explaining the top of the signature stating, "Will get you 

banned." Administrative access is required in order to ban users 

of the website's forums. 

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21. The access capabilities of the forum user "T," 

specifically, that he placed a "sticky" on multiple forum threads 

that he posted, that he banned a web forum user, and his title 

reflected as "v.i.p." reflected the capacity of a forum 

administrator, or a user which represents and acts on behalf of 

the website RAPGODFATHERS.COM. Thus, I believe that forum user 

lIT" is a RAPGODFATHERS. COM administrator and/or representative 

who is directly making pirated content available for download on 

the website's Internet forum. 

D. Pirated Computer Software via RAPGODFATHERS.COM 

22. On or about October 12, 2010, I accessed the abovereferenced forum topic titled "Applications" and located a post 

titled "Windows Essential Applications," which had been created 

on or about September 19, 2010 by the forum user 

"/!GunMetaLGr3GI\". Based on the description below the user's 

avatar, the user "/IGunMetaLGr3GI\" had created approximately 535 

forum posts since "joining" or registering with the website forum 

on or about September of 2009. (A screen shot of this page on 

RapGodFather.com as it appeared on October 12, 2010, is attached 

hereto as Exhibit B.) 

23. In order for the general public to be able to view the 

download links posted by forum users, a person is required to 

register with the Internet forum on RAPGODFATHERS.COM. After 

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completing the registration process, that person is also required 

to post a "thank you" message to view any download links. Based 

on my training and experience, I know that requiring the general 

public to register with an Internet forum in order to post thank 

you messages increases the amount of "views" or website traffic 

and consequently increases the website's popularity. 

24. After registering as a forum user and posting a thank 

you message, I was able to view the links to the "bootleg" 

(pirated) computer software, which included, in part, the 

following: 

- Sony "Vegas HD Platinum 10 3D Edition" 

- Google "SketchUp Pro" 

- Adobe "Photoshop CSS" 

25. When I clicked on the download links for the above 

bootleg computer software, however, I was forwarded to a 

cyberlocker which indicated that the downloads were longer 

available. Thus, I was unable to obtain any of the abovereferenced pirated computer software. 

B. Downloads of Infringing Content via RAPGODFATHERS.COM 

26. On or about October 14, 2010, I used the uppermost 

thread which forum user "Til (as noted above, who I believe is an 

administrator or representative of the website) had created on or 

24 
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about October 14, 2010, titled "Red.2010.DVDSCR" to link to the 

cyberlocker megaupload.com. On or about the date listed in the 

chart below, I clicked on the links for the below-listed movie on 

the RAPGODFATHERS.COM website, selected the link 

http://www.megaupload.com/?d=HP3R636U to download the movie from 

the below-mentioned cyberlocker site, and downloaded a copy of 

the movie "Red" from the relevant cyberlocker in a manner that 

indicated that the entire movie had been uploaded and made 

available to RAPGODFATHERS.COM forum users ("the Red movie 

file") .~ 

27. While downloading the Red movie file, I noticed the 

"File description" on t:he megaupload.com cyberlocker was 

.. http://www.rapgodfathers.com/forum ... Based on my training and 

experience, I know that at the time a file is uploaded, the 

uploader is able to input a file description for the referenced 

file download. Whenever someone downloads the file, the ufile 

description" listed will show the website "URL" 

http://rapgodfathers.com/forum''. If the downloader were to 

follow this "URL," it would lead to the RAPGODFATHERS.COM forum. 

9 I downloaded the entire movie, at the beginning, middle, and 

end to ascertain whether the uploaded content was the complete 

theatrical production. 

25 
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28. Upon viewing the Red movie file, I noticed the subtitle 

"property of Summit Entertainment" in white lettering at the top 

of the footage. Based on my training and experience, I know that 

such white lettering reflects that the Red movie file is a 

screener and is not intended for public or Internet release. On 

or about October 18, 2010, I submitted a sample of the Red movie 

file for evaluation to Michael Radziewicz, an MPAA investigator. 

29. Based on my review of public movie listings, the 

evaluation of examination by investigator Radziewicz, as well as 

conversations with representatives of the MPAA and other movie 

studios, I know that as of October lS, 2010, the above-referenced 

movie "Red" was playing in theaters, was copyrighted, was 

confirmed to be a screener, and that the copyright holders did 

not authorize its third party distribution over the Internet by 

RAPGODFATHERS.COM or any other website. 

30. On or about November 15, 2010, I also used the 

RAPGODFATHERS.COM website to link to cyberlockers and download 

illegal copies of pirated albums. On or about the dates listed 

in the chart below, I clicked on links for the below-listed songs 

on the RAPGODFATHERS.COM website and downloaded the albums from 

the below-listed cyberlocker sites. Beneath each of the download 

links for the below-referenced albums was listed a link to the 

RAPGODFATHERS.COM forum, titled "More Downloads on RGF Forum." 

26 
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l1. On or about Nove_r llI, ~OIO I :reviewed tttl! abov.-

.. d.r .. ,,"'" dDwnloadt'd .1_ ;o.no:I .u...,.. •• lully liuella4 u •• a"h of 

th •• ong .... lIkh tll.y <:on ... i" .. oI. BUool On lOy r .. vi .... ot public 

... <:ord .. lining ... a .. _lJ a. eonv .. r ... tione witll npr .. untaUv.a 

of til" RIM, I !<now that aU of til .. above-ref.rene.d .<mg ...... e 

d.uralned to be ·pn-relua.· (La not yet ."l", ... d lor 

pure"" ... to til .. g.neral publicI at tM ti_ tlley .. era uplOilded on 

tile RAI'OOCPATlIERII.OOtI _bIIlt •• _til eopyrl.9ht.d, ;0'" tbe 

topyrl9ht I>old ...... did not .uU>o.h. e""i .. ellitd party 

di.tribUtio" " v.r the Int."",t by AAfGOOYATNKIIS.COM or any <>ti1er 

_bIIloe. 

" 
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F. ISP Representative's Statements Relating to RAPGODFATHERS.COM 

32. On or about October 18, 2010, I emailed Colocate USA10 

at its email address of company@colocateusa.net to request a 

point of contact in connection with this investigation; I did not 

provide details af the investigation. On or about October 20, 

2010, I received a phone call from Colocate USA Director of Sales 

Ray Womack, who requested that I call him back at telephone 

number xxx-xxx-S010. 

33. On or about October 22, 2010, at approximately 8:43 

a.m. I called Womack at the number he gave me and spoke with 

him. During our conversation, and without me giving him any 

information regarding which website was the focus of our 

investigation, Womack made the following spontaneous statements: 

a. "Just tell me who youlre serving ... is it 

rapgadfathers?" 

b. "Between you, me and the fifth folksl1, who are you 

going to serve?1I 

"We can cut a lot of the bullshit out if you just 

tell me who it is because ... looking at paperwork, I am 

10 Col ocate USA is an Internet Service Provider (ISP) owned and 

operated in Texas, which serves as the hosting ISP for 

RAPGODFATHERS.COM. 

II By mentioning "the fifth folks," Womack was apparently 

referring to the Fifth Amendment. 

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probably sure it's rapgodfather. It's the only IP complaint that 

we have on our books and we try in our due diligence to work with 

those clients. To forewarn them and to work with them.11 

G. The RAPGODFATHERS.COM Domain 

34. According to valuethewebsite.com, as of on or about 

November 12, 2010: 

The Alexa.com12 ranking for RAPGODFATHERS.COM 

shows it was the 15,150th most popular website in the United 

States; 

b. RAPGODFATHERS.COM had 24,708 daily page views; 

c. RAPGODFATHERS.COM had an estimated worth of 

129,652.00 

35. A search of publicly available WhoIs domain name 

registration records revealed that the RAPGODFATHERS.COM domain 

was registered on or about April 13, 2005 through the registrar 

Enom, Inc. which has its headquarters at 15801 NE 24th Street, 

Bellevue, washington 98008. The publicly available WHOIS 

database lists the registrant of the RAPGODFATHERS.COM as 

Alexa.com is a "web traffic metric service," meaning that it 

performs a function similar to the traditional Nielsen television 

ratings service. Among other things, Alexa.com measures the 

amount of visitors to a particular website relative to other 

websites on the Internet, provides an overall ranking of the 

website's popularity, and collects other information relating to 

the website, including the number of other websites that link to 

it. 

29 
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WhoisGuard.com, a company which protects the identity of domain 

registrants by placing their information in WHOIS and providing 

an option to redirect email and regular mail to the customerfs 

real address. 

36. Publicly available WHOIS records also revealed that the 

RAPGODFATHERS.COM site is hosted on a computer assigned IP 

address 67.216.80.3, which is owned by ColocateUSA, located at 

2327 Wise Road, Grand Prairie, Texas 75052. 

The TORRENT-PINDER. COM Website 

A. General Description 

37. Based on my review of web pages that are available at 

the TORRENT-PINDER.COM website, I have learned the following: 

a. TORRENT-PINDER.COM is a linking and Bit torrent 

website. According to a "disclaimer located at the bottom of the 

site's web pages, "Torrent Finder is a 100% legal website, in 

strict compliance with all local laws and copyright agreements." 

The website's home page also explains that "Torrent Finder is a 

Bit Torrent Multi Search Engine which searches 165 torrent sites 

and trackers from one page. Protect yourself from your ISP, 

Hide your personal activity while downloading torrents." 

b. Based on my participation in the investigation and 

my discussion with MPAA representatives, I know that despite this 

disclaimer, the webpage still lists terms which indicate the 

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production and distribution of pirated content as well as the 

concealment of the user's identity while downloading pirated 

content. 

c. On or about October 15, 2010, the website's 

homepage displayed several "High Speed Downloads," the first of 

which was titled "Secretariat Ripped." Based on my training and 

experience, queries of public movie listings and my discussion 

with MPAA representatives, I know that "Secretariat" is a firstrun movie that was released in theaters on or about October a, 

2010 and was not yet released to the general public for homeviewing. I also know that in the above-referenced context, the 

term "Ripped" refers to a pirated copy of a movie which was 

created - i.e. ripped from - the original digital source 

material, often after the security protection on the original 

digital source is removed. 

d. The top of the site's home page includes the logos 

and titles of other torrent websites which are links available 

through TORRENT-FINDER. COM. The titles of these torrent websites 

included the following: "PSP Pirates," "Pirateeuropa," 

"ThePirateBay," "Kick Ass Torrents," "FileMP3.org," 

"OpenSharing," and "MoviesDVDR."" (Emphasis added.) 

e. The first page a user sees when accessing the site 

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contains a search text-box, in which a user is able to enter any 

keyword or phrase to initiate a search of links available on 

TORRENT-PINDER. COM which lead to downloadable content. 

B. Pirated Movies via TORRENT-FINDER. COM 

38. On or about November la, 2010, I used the abovereferenced search text-box to search for download links which 

contain the keyword "Cam" in the file title. (As explained in 

the technical definition section above, "Cam" refers to movies 

that have been recorded with camcorders while the movie is 

playing in theaters. Movie files created in this way frequently 

have the term "cam" in the file title.) The result of my search 

consisted of 1,000 pages with 30 download links per page, 

equaling 30,000 links. The results were listed beginning with 

the most popular links which contained the keyword "Camj" the 

listings also showed how many computers were currently accessing 

("Seeding" or "leeching") the torrent file and whether or not the 

links were "verified torrents,,13: 

13 In the above-referenced context to Bit torrent files, a "seed" 

is a computer that has an entire copy of the torrent and offers 

it for upload. The more seeders there are, the better the 

chances of getting a higher download speed. If the seeder seeds 

the whole copy of the download they should get faster downloads. 

A "leech" is a computer that either does not have 100 percent of 

the data or who has a negative effect on the download speed by 

downloading much more of the file than they upload. A "verified" 

Bit torrent file is a file that has been checked and approved by 

the evaluators of the website {which can either be people or an 

32 
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Paranormal Activity 2 2010 CAM Xvid-REVIVE 

[verified], [approximately 3,840 seeds / leeches] 

Inception.2010.CAM.XviD-TA(FULL MOVIE) (verified], 

(approximately 3,738 seeds / leeches] 

Jackass 3D 2010 Cam H264 Feel-Free [verified], 

[approximately 3,531 seeds / leeches] 

The Social Network CAM XViD - IMAGiNE [verified], 

[approximately 3,178 seeds / leeches] 

DUE DATE 2010 Cam XviD Feel-Free [verified] 

[approximately 3,597 seeds / leeches] 

Megamind 2010 Cam-CLASSiFiED [verified] 

[approximately 2,311 seeds / leeches 

39. I know that once a user selects a movie and clicks on 

the corresponding link, a new webpage listing numerous details 

about the movie file 14 as well as links to download the movie 

file from cyberlocker websites or as a Bit torrent file appears. 

A user can then click on one of the links to download the movie 

from the relevant website. 

40. Based on my participation in the investigation, review 

of public movie listings and my discussions with MPAA 

representatives, I know that the above-referenced titles reflect 

several movies which are currently unreleased on DVD, unavailable 

automated computer function) which attaches the term to the Bit 

torrent file link. 

14 Details to include pictures, cover art, cast, screenshots, 

descriptions and reviews. 
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for public home-viewing and the copyright holders did not 

authorize their third party distribution over the Internet by 

TORRENT-FINDER. COM or any other website. 

41. On November IS, 2010, I did the same search for keyword 

"cam" and the result again consisted of 1,000 pages containing 30 

links per" page, equaling 30,000 matches. This time, I reviewed 

the first 10 pages of results and it appeared that approximately 

80% of the results those 10 pages contained movies with the 

term "cam" in the digital file title .15 Some of the movie titles 

listed on the first page (hence, the most popular downloaded 

movies) were the following: 

Due Date 2010 Cam XviD Feel-Free [verified], 

[approximately 5,860 seeds I leeches] 

Paranormal Activity 2 2010 CAM-XviD-REViVE 

[verifiedJ, [approximately 4,719 seeds I leeches] 

Megamind 2010 Cam-CLASSiFiED [verified] 

[approximately 2,627 seeds I leeches] 

The Social Network CAM XViD - IMAGiNE [verified] 

[approx 2,517 seeds / leeches] 

Saw 7 2010 CAM XviD - danytheone (NEWVIDEOSOURCE) 

[verified] [approximately 3,041 seeds / leeches] 

IS The other approximately 20% of the results contained "cam" in 

the file title for some other reason, such as the actress Cameron 

Diaz being listed in the file title. 

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C. TORRENT-FINDER. COM Forum Posts by Forwn User "Torrent Finder*' 

42. Users of the torrent-finder. com website can click tabs 

at the top of each webpage to browse categories such as "Search" 

"Forums." and \\News." On October 26, 2010, I accessed the 

portion of the website called "Forums" which allowed users to 

post comments about movies, software, video games, music, 

participate in forum discussions with other users, and create 

messages which link to other Bit torrent websites. 

43. I was able to view several posts by the user 

"Torrent Finder," including "Top 10 Most Pirated Movies on 

BitTorrent," "Piracy in the Music Industry," "Piracy Can Boost 

Book Sales Tremendously," "The First Episode of 'The Walking 

Dead' Leaks to BitTorrent," and "Piracy domain seizure bill gains 

support." 

44. From reviewing these posts by the user "Torrent 

Finder," I learned that the above-referenced postings contained 

links and information to pirated movies including "Wall Street: 

Money Never Sleeps," "The Social Network," "Red," and other 

movies. (A screen shot, as it existed on October 26, 2010, is 

attached hereto as Exhibit C.) Based on my conversations with 

MPAA representatives and my review of public movie listings, I 

learned that as of October 26, 2010, these movies were playing in 

theaters and the copyright holders did not authorize their third 

35 
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party distribution over the Internet by TORRENT-FINDER. COM or any 

other website. 

45. During my investigation, I further concluded that the 

user "Torrent Finder" is an Administrator and representative of 

TORRENT-FINDER. COM. I came to this conclusion based on two 

significant facts. First, the title "Admin" is located below the 

user's name. Based on my training and experience, I know that a 

forum user's title can only be created by the website, not the 

user. Second, the words "Torrent Finder Admin" and the Torrent 

Finder.com logo are listed in the user's "signature.,,16 

D. Downloads of Infringing Content via TORRENT-FINDER.COM 

46. On October 15, 2010, I searched TORRENT-FINDER.COM for 

the movie "The Town" and received four results which contained 

the word "Cam" in the file title. At the time of this search, 

the movie "The Town" was still playing in theaters and was not 

yet released to the general public for home viewing. I clicked 

on the link to the torrent file listed as "The Town CAM AC3 XViD 

{READ NFO} - IMAGINE - {GalaxyRelease}" (hereinafter "The Town 

movie file") which displayed the torrent file hosting website 

16 In the "above-referenced context to Internet forums, the term 

"signature" refers to the signature block or block of text 

automatically appended at the bottom of an email message, forum 

post or other Internet-based discussion. 

36 
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"Kick Ass Torrents." At this point, I was still on the Torrent 

Finder website, but was able to see a page of the Kick Ass 

Torrents website associated with The Town movie file. The page 

contained a detailed description of The Town movie file which 

included a copy of an advertising poster for "The Town" film, 

screenshots of The Town movie file, an Internet Movie Database 

(IMDb) 17 link and description, cast listings, the term \\Cam" 

listed under "Detected Quality" as well as a list of the files 

stored within the torrent file. 

47. Towards the bottom of the webpage, under a text box 

labeled "IMAGiNE NOTES," were listed the following comments: 

VIDEO: Thanks to a very good friend. :) 

AUDIO: Thanks to a very good friend. :) 

Video on this was pretty good other than the odd auto 

focus issues. First was the colors, we messed about 

with the .' colors and also brightened it up a bit, 

and . dulled the real bright spots . . . 

sounds fairly good for cam audio. You can hear the odd 

laughing and such, but not bad at all. Sample was made 

so you could hear the laughter at one certain spot. 

48. Based on my training and experience, the above comments 

!7 The Internet Movie Database (IMDb) is an online database of 

information related to movies, actors, television shows, 

production crew personnel, video games, and fictional characters 

featured in visual entertainment media. 

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.et,,~ to tM fact tlult tM ...... 1. _ ... i"-'>tape<!. .. ith .. ca!lICCr<Ser 

and tM. you could hnr th" la~ghur of til .. "",vi .... u,l1ance in th" 

tlle .. t",.- wh .. u tho! fll ...... iHOOSally .....,.,,.-.,.d. IIltU. Initiating 

tna -"I011d, 1 ...... p,.-ovlcled .. Ith tM tollowlnq two optiona to 

cIooml<>a<l the """,I., (1) "OownlO11d TOrn"." (frOlO a Bit tOrT@nt 

.It.) •• nd (ll "DoWnl<Md _1,,- ta dir"ct _load fro. .. cyt.o.,.-

1<><:Jt1tt) • 

49. I e lick"d on th" "Download Movi,," option and It took cae 

to .. P"'J" C'ont;d""d on ~ "lUck A .. _1" ... b.IC" ...... Ich 

contained a downlOlld I1nk to download no. Town .."1,, tn.. After 

.. ttrmptlng to d"""l" .. d tb .. movl .. , It <equl .... d .M. I r"!lht .. ,.- and 

pay a fe" to ~Icll;: ..... NoYz, .., 1 I ... u , .. d .... t~~ to TOr,.-.. "t 

Finder . .,.,. and cllckotd on the option a.ted ... "DownlOild 

Te...-"nt, " Thl" aUOWiId ..... " download til. ait . ou.rlt tn .. and 

......... It. J: ..... ~1t!_ .. ly al>l. to _1011d • copy ot tile 

toll_I,,!! tU .. , 

" 
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50. On Oct"obe .. u, ~O , 1 . ubmitt"d ••• .,ph ot eh" TOwn 

_I. Hh ~ ICPAA 1 ....... Ug.~r Mieba . l bd11..,I" •. 

5 )_ On or aJoout Oct.OiJOI. 28, lOlD, "~AA npr .... ntUiv .. 

• "."ained • copy of n.. TOwn _I" U 1. that J obt .o i..-d via 

TORRENT· rnroiR. 0»1 . 

b'hl ... I"~ t hat n.. T....., ..,.,l .. t U ....... an lJN.uthcahed .... 1_ ... 

or tho! ..",la "The T<>wn,~ ;0 _vi. ownad by s.-it KI"ltutaJ,-nt , 

u.c. lat ....... ",h_d .. copy ot the copyright a ppl1Co11Uon for no" 

TOwn a nd. l.arnftd e lue tho! HI . .... eopyr19ht.d ba.ad on the 

following 1:1.1. Dll!c;oil. , 

8 roe, 8 ...,... 

Ent.re.lI.. Ent . .. ut ... 

52 . Iladd.",lcz alao Info..-d _ thAt the Town woovle HllI 

...... ·c_,· _anlng that i t hiltd ~ ill_Hy copied 10 thII 

thll.atu- with. ""-"'COrder. 

1/ 

1/ 

1/ 

1/ 
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E. Advertising Revenue Paid to TORRENT-FINDER.COM 

53. Advertisements appear on various portions of the 

TORRENT-FINDER. COM website, including on pages that include 

download links to movies, music, and computer software. As noted 

above, I also know from my participation in the investigation and 

as a result of information obtained from, and my discussions 

with, representatives of Value Click,lB that companies which 

place advertisements on websites typically pay a fee to the 

website's owner based on, among other things, the number of 

website users who view the advertisement as well as the number of 

times users click on the advertisement. 

54. Based upon information I received from Value Click, the 

following chart reflects advertising revenues that Value Click 

paid to the owners of the TORRENT-FINDER. COM website for 

advertisements appearing on various portions of the TORRENTFINDER. COM website, corresponding to the number of people that 

view and interact with the website19 : 

Ii ValueClick, based in Westlake Village, California, is an online 

advertising company which provides online advertising campaigns 

and programs for advertisers and advertising agency customers in 

the united States and internationally. 

19 It is significant to note that ValueClick is only one of 

multiple online advertising companies that TORRENT-FINDER. COM 

uses on its website and thus is not the only advertising company 

which provides revenue to the TORRENT-FINDER. COM website owners. 

Thus, the above advertising revenues reflect only a portion of 
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~~I "~ :..!.~-: , I""," '" >~ ~'-iJ, l!$.Q 

1'''.0< 

I 

I''','' ~ '''~ 

"" I""" 

I",""" '" I""" 

',m,n '" I"~' 

, w, 

the .. dv. tl .i n9" preHU t.ht. d • ., ownan. of TOI!JU'Jf'\'- YIIIllER .CI)IoI ue 

recelvi"'l'. 

" 
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F. The TORRENT-FINDER. COM Domain 

55. According to valuethewebsite.com, as of on or about 

November 12, 2010; 

a. The Alexa. com ranking for TORRENT-FINDER. COM shows 

it was the 4,980th most popular website in the United States; 

b. TORRENT-FINDER. COM had 103,978 daily page viewsi 

c. TORRENT-FINDER.COM had an estimated worth of 

373,678.00 

56. A search of publicly available WhoIs domain name 

registration records revealed that the TORRENT-FINDER.COM domain 

was registered on or about August 22, 2004 through the registrar 

Blue Razor Domains, Inc. which has its headquarters at 14455 

North Hayden Road, suite 226, Scottsdale, Arizona 85260. The 

publicly available WholS database lists the registrant of the 

TORRENT-FINDER. COM as W7 Media, a company which protects the 

identity of "domain registrants by placing their information in 

Whols, providing an option to redirect email and regular mail to 

the customer's real address as well as providing a number of IP 

related services to its clients. 

57. Publicly available Whols records also revealed that the 

TORRENT-PINDER. COM site is hosted on a computer assigned IP 

address 208.87.34.18, which is owned by Secure Hosting, located 

at Robinson & Marathon Roads, P.O. Box CB13862, Nassau, Bahamas. 
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The RMX4U.COM Website 

Ao General Description 

58, Based on my review of webpages that are available at 

the RMX4U.COM website, I have learned the following: 

a. RMX4U.COM is a German Internet forum-based 

"linking" website. The site's homepage displays album covers and 

links to several different subforums and topics ,20 (A screen 

shot as it existed on October 25, 2010 is attached hereto as 

Exhibit D.) Upon clicking on one of the topics, such as "GFX 

Resources / Appz / Help,,21, the user is directed to a new page 

containing a list of threads created by forum users which are 

organized in reverse chronological order corresponding to the 

date and time the thread was created. (A screen shot as it 

existed on October 25, 2010 is attached hereto as Exhibit E.) 

b _ The RMX4U. COM subforum "Music Zone" was organized 

into topics in which each topic corresponded to a specific genre 

of music: "RnB Tracks," "Electronical Tracks/Mixes 2010," "German 

Tracks/Remixes," "Music Clips Request" and others. Within each 

20 The subforums were called "zones, If and contained several topics 

in which registered forum users were able to post threads and 

messages. 

~l The acronym GFX, as used in the above-referenced context, 

refers to the term "graphics" which corresponds to photo editing 

software such as Adobe Photoshop. 

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of these topics, a registered forum user is able to create new 

threads as well as post replies to already created threads or 

posts. 

B. Pirated Music Albums via RMX4U.COM 

59. Based on my review of the RMX4U.COM forum, I discovered 

that the forum provided registered users with the ability to 

obtain or distribute music files through the above-referenced 

forum threads. 

60. On or about October 26, 2010, I viewed a thread titled 

"Joe Discography" within the subforum "Black Zone" and the topic 

"Old But Gold Alben." The initial post contained several album 

titles beneath which was a picture of the albUm cover, a 

description of the album, a track list for the album and one 

more download links to obtain the pirated album files. The 

download link transferred the user to a cyberlocker hosting 

website at which the user could illegally download the 

corresponding file: 

I I 

II 

I I 

I I 

II 

44 
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'o!c Everything 19_93 Joe Mercury http Ilul to 

All That I Am Joe Jive http: Ilul to 

(1997) 

My Name Is Joe Joe Zomba Records http. Ilul to 

(2000) Singapore/ BMG 

Records 

Better Days (2001) Joe Jive/Zomba http://ul to 

And Then_ (2003) Joe Jive http://uI to 

And Then (Dutch Joe Jive Records http://ul to 

Bonus Tracks) 

The Best of Joe Joe MIA http / /ul to 

(2006) 

Ain't Nothin' Like Joe RCA http://ul to 

Me (2007) 

Joe Thomas New Man Joe Kedar Ent. http://ul to 

(200B) 

61. Several of the pirated album files went so far as to 

list the "Ripper" as well as the "Supplier" of the original 

album's content 

62. Based on my review of public record listings, as well 

as conversations with representatives of the RlAA, I know that as 

of October 26, 2010, the above-referenced albums were 

copyrighted, and that the copyright holders did not authorize 

their third party distribution over the Internet by RMX4U.COM or 

any other websites. 

22 Based on the above-referenced context, the term "Ripper" refers 

to the person who "ripped" or illegally copied the album or CD. 

The term "supplier" refers to the source from which the original 

album was obtained. 

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c. Pirated computer Software Programs via RMX4U.COM 

63. On or about October 25, 2010, I accessed the 

RMX4U.COM website and explored the sub forum titled "Photoshop 

Zone," specifically targeting the topic "GFX Resources / Appz 

Help." I know that the term "Appz" refers to the word 

applications, which often include software and other related 

computer programs in the above-referenced context of graphics 

("GFX") . 

64. Upon further examination, I observed several threads 

whose titles reflected photo editing software owned and 

maintained by the company Adobe, including the following: 

"Adobe Photoshop Lightroom 3.2.0 Finals" 

"Adobe Illustrator vlO.0.12B.O.OO" 

"Adobe Photoshop CS5 Extended v12.0 Final + 

Portables" 

"Adobe Flash Professional CS4 vl0.0,0" 

"Photoshop CS5 Portable Plus Topaz Plug-In 

Bundles" 

65. I clicked on the thread titled "Adobe Illustrator 

vlO.0.12B.0.OO," which had been created on or about October 17, 

2010 by the forum user "yoannl02." I noticed that the user's 

name had been crossed out by a line and was described by the word 

"Banned" which was depicted beneath the user's name. The post 

46 
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lett.r -/I.. 

D. iIO!mlPld l 9 ' I Qf dlldQq COp tmt xi a Will CO!! 

U. On Dr about ~ <late .l.1It"'" 1n tlle ",lIart bo.low. I 

lin.d eyi>ooz-loekez- IItI, an<! downl<>ll<ted • <:opy oi t.he UI. 

"'''"'Pr1sing the below l"tad <:ocrtputer BllftvarB. 

'., « . ''. Gn , , 

~< j 

_t __ 

, .. .... ~ 

.... " • ., " ..... , .-.. ,. .. ~.- ,_.-.-

1 ""''''0' 

n. Qn Dr about OCtob.r n, ~OlO. l .. turned to thl "GN 

• ~ord.ng to the Una.-! Sta ...... ~"t.nt and 'Tn<ie .. rk QUi.,. 

tUSPTOI. the <:.rtHl<:"tion typed d:ravi~ ""rd .. rt .~. 11 " 

reg1at .... d tn_rk " •• lgnfll to tha .-.giltrant ~ sl'u_ 

Incorpout.-!, Corpcratlon C"l1tornia, ltS ParI< "venue Le!!al 

o.po.n ... nt Sin Joae california '51\0 , Th. _rial nUJlber or tI,. IMrk 11 147579], the _rl< ...... u'jbt..-ed lin Dr &bout ".J:,.., •• ry 9, 

un and the _rk i. active and live. 

~ A<:eordl"9" to tbe USP'lO. the """rtHlelt1 ..... rk "A- (n<:tangla. 

a. dngh or .ultipl" li ... bo.vera "Mel> 1" cMn.ct arh.-! to 

COIII!.t ot " nylhed l.tt •• " .... ") 11 a •• giat •• ed t""-,k 

... algned to d", ... ,inrant _be Sytlt_ lncorpo.rated. 

corporation o.lav .r. Le .. al Oepo.rt _nt, lU Plrk .... venue San .Jon 

CooIUornlu '5110. Th,. ••• hl n..-r ot tho .... r k .. 71SUU4; the 

.... rk WU 'o.ghtl!.-..d On or about I)ecelO!><lr ZO, 200S aru1 thl .. rk in 

... "Uv .. alld H_. 

" 
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74504J2-49.eps

Resources! Appz / Help" topic of RMX4U.COM and selected the 

thread titled "Adobe Photoshop CSS Extended v12.0 Final + 

Portables," which had been created on or about October 17, 2010 

by the user yoannl02. I noticed that the user's name had been 

crossed out by a line and was described by the word "Banned" 

which was depicted beneath the user's name. Upon further 

examination, I noticed the following text at the end of the post: 

"Geandert von .soulvocals (26:10:2010 urn 18:18 Uhr) Grund: icon 

added." The text indicated that the post had been adjusted, 

changed or modified on or about October 26, 2010 by the Internet 

user represented by the username "soulvocals." Based on my 

training and experience, I know that Administrative user access 

is required in order for a forum user to modify a post created by 

another forum user. 

68. On or about the dates listed in the chart below, I 

clicked the links for the below-listed files on the RMX4U.COM 

website, selected the links to download the files from the belowlisted cyberlocker sites, and downloaded copies of the files 

comprising the below-listed computer software. 

II 

II 

II 

/ / 

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Date Computer Filename Cyberlocker 

Software 

Title 

10/26/2010 Adobe EDK_Adobe. Photoshop. CSS. Extended. Full. Fileserve.com 

Fhotoshop CS5 Keymaker_UDS 

Extended 

10/26/2010 Adobe EDK _Adobe. Photoshop. CBS. Extended. Full. Fileserve. com 

Photoshop CS5 Keymaker_UDS 

Extended 

10/26 2010 Adobe EDK_Adobe. Photoshop. CBS. Extended. Full. Fileserve. com 

Photoshop CS5 Ke}'maker _ UDS 

Extended 

10/26/2010 Adobe EDK_Adobe. Photoshop. CSS. Extended. Full. F~leserve. com 

Photoshop CS5 Ke}'maker _ UDS 

Extended 

10/26/2010 Adobe EDK_Adobe. Photoshop. CSS. Extended. Full. Fileserve. com 

Photoshop CS5 Keymaker_uDB 

Extended 

10/26/2010 Adobe EDK_Adobe. Photoshop. CSS . Extended. Full. F~leserve. com 

Photoshop CS5 Keymaker _ UDS 

Extended 

10/26/2010 Adobe EDK _Adobe. Photoshop. CSS . Extended. Full. Fileserve. com 

photoshop CBS Keymaker _ UDS 

Extended 

10/26/2010 Adobe EDK_Adobe. Photoshop. CSS . Extended. Full. F3.leserve.com 

Photoshop CSS Keymaker_UDS 

Extended 

10/26/2010 Adobe EDK _Adobe. Photoshop. CS5 . Extended. Full. F~leserve. com 

Photoshop CSS Keyrnaker _ODS 

Extended 

690 On October 27, 2010, I submitted a sample of the 

above-listed computer software files on a recordable DVD (DVD-R) 

to Adobe Systems Inc. Anti-Piracy Enforcement Manager Chris 

Stickle for evaluation. 

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70. On or about November 3, 2010, Stickle examined 

samples of the above-referenced pirated computer software that I 

downloaded from RMX4D.COM. Stickle informed me that the 

downloaded program files were fully functioning versions of the 

Adobe computer software and Adobe did not authorize their third 

party distribution over the Internet by RMX4D.COM or any other 

website. Stickle additionally informed me that the pirated 

computer program file titled "Photoshop CSS Extended" contained 

counterfeit Adobe serial number 132S-1SS8~S864-4422-1094-1126. 

Finally, Stickle informed me that the MSRP (Manufacturer's 

Suggested Retail Price) for "Illustrator 10" is $399.00 and 

"Photoshop CSS Extended" is $999.00. 

E. Forum Posts by Forwn User "soulvocalsri on RMX4U.COM 

71. During the course of the 

EDK_Adobe.Photoshop.CS5.Extended.Full.Keymaker_DDS.partO5.rar 

file download, I searched the RMX4U.COM Internet forum for the 

username "soulvocals" and clicked on the above-referenced forum 

thread titled "Joe Discography"i a message which depicted 

download links for several pirated MP3 25 files, including "Joe2~ MP3 is an acronym for the term MPEG-1 Audio Layer 3 I an audio 

file format commonly used for mobile audio I music listening 

devices. 

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The_Best_Of_Joe_ (Mixed_by _DJ_Finesse) -Bootleg-2006,,26. (Emphasis 

added.) The forum user represented by the username "soulvocals" 

posted the following reply to the above-referenced message on or 

about "06.07.2009" and at approximately "ll:15": "wuhuu.danke dir 

!,,21 

72. I noticed that the "soulvocals" user's name had been 

highlighted in blue and was described by the word "Moderatorinfl28 

which was depicted beneath the user's name. During my 

investigation, I concluded that the user "soulvocals" is an 

Administrator and representative of RMX4U.COM. I came to this 

conclusion based on two significant facts. First, "soulvocals" 

reviewed and modified the message titled "Adobe Photoshop CSS 

Extended v12.0 Final + Portables" which later contained pirated 

computer software files of the pirated copyrighted computer 

program "Adobe Photoshop CSS Extended." Based on my training and 

experience, I know that Administrative user access is required in 

26 As noted earlier, the term "bootleg" refers to something, such 

as a recording, which is made, reproduced, or sold illegally or 

without authorization. 

Z7 In the above-referenced context, the phrase "danke dir" is 

German for "thank you." 

ZS In the above-referenced context, the phrase "Moderatorin" is 

German for "Moderator." Based on my training and experience, I 

am aware that the term "Moderator" refers to the person who 

controls an Internet forum. 

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order for a forum user to modify a post created by another forum 

user. Second, I noticed that the "soulvocalslJ username had been 

highlighted in blue and was described by the word "Moderatorin," 

meaning "Moderator," which was depicted beneath the user's name. 

Based on my training and experience, I know that a forum user's 

title can only be created by the website, not the user. Since 

the title listed below "soulvocals" means "Moderator" and since a 

Moderator controls an Internet forum, I believe that the user 

"soulvocals" is an adminis~rator or representative of the 

website. 

F. The RMX4U.COM Domain 

73. According to valuethewebsite.com, as of on or about 

November 12, 2010: 

a. The Alexa.com ranking for RMX4U.COM shows 

it was the 57,948 th most popular website in the United States; 

b. RMX4U.COM had 4,358 daily page views; 

c. RMX4U.COM had an estimated worth of 

31,753.00. 

74. A search of publicly available Whols domain name 

registration records revealed that the RMX4U.COM domain was 

registered on or about December 17, 2006 through the registrar 

Enom, Inc. which has its headquarters at 15801 NE 24TH Street, 

Bellevue, Washington 98008. The publicly available WHOIS 

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database lists the registrant of the RMX4U.COM as WhoisGuard.coffi, 

a company which protects the identity of domain registrants by 

placing their information in WhoIs and providing an option to 

redirect email and regular mail to the customer's real address. 

75. Publicly available WhoIs records also revealed that the 

RMX4U.COM site is hosted on a computer assigned IP address 

212.117.166.2, which is owned by "root SA," located at 35, Rue 

John F. Kennedy, 7327 Steinsel, Luxembourg. 

The DAJAZ1.COM Website 

A. General Description 

76. Based on my review of webpages that are available at 

the DAJAZl.COM website, I have learned the following: 

a. DAJAZ1.COM is a linking website. The site's 

homepage displays album covers and recording artist photographs, 

short descriptions, and links for numerous pirated songs. For 

example, on or about October 26, 2010, the DAJAZl.COM homepage 

displayed album covers and recording artist photographs, 

descriptions and links for, among other songs, "Jamie Foxx ft. 

Drake- Fall For Your Type," "High Off Life - Cassidy feat Jr. 

Reid," \II Can't Help It - T.I. feat Rocko," and "Purified 

Thoughts - Ghostface." I was also able to click on a link titled 

"Older Entries" which allowed me to individually view prior home 

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pages from the website; these home pages, taken together, 

included what appeared to be hundreds of links to pirated songs. 

b. On the initial DAJAZl.COM homepage is a 

section titled "About Me" which contained the (alleged) website 

administrator's contact information: 

Location: Queens, New York, united States 

DAJAZ1.COM (DUH-JAZZ-ONE) 

Twitter - @splash dajazl 

Bigsplashl024@aol~com 

Splashrnixtapes@tmail.com 

Splash.Dajazl@gmail.com 

MYSPACE.COM/MIXTAPESPLASH 

c. The DAJAZl.COM website hornepage contained a 

link titled "MP3 Downloads." Upon clicking the "MP3 Downloads" 

link, the user is directed to a new page which displays 

additional album covers and recording artist photographs, short 

descriptions, and links for numerous pirated songs. For example, 

on or about October 26, 2010, the DAJAZl.COM "MP3 Downloads" web 

page displayed album covers and recording artist photographs, 

descriptions and links for, among other songs, "Jamie FoX){ ft. 

Drake- Fall For Your Type," '\Long Gone - Nelly feat Chris Brown 

and Plies," "Making a Movie - Ne-yo," and "T.I. - Ya Hear Me." 

77. Upon clicking a link for one of the songs, the user 

is directed to a new page containing the title of the song, the 

artist(s) who produced it, a description, the date which it was 

posted on the website, a photograph of the artist or album which 

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featured the song, the administrative user responsible for 

uploading the file or message and multiple download links. 

78. On or about October 26, 2010, I noted that 

approximately 14 administrative message postings had been created 

by the website administrator with the username "Splash." During 

my investigation, I concluded that the user "Splash" is an 

Administrator and representative of DAJAZ1.COM. I came to this 

conclusion based on two significant facts. First, "Splash" 

created the above-referenced DAJAZ1.COM message postings which 

later contained pirated" song files. Based on my training and 

experience, I know that Administrative user access is required in 

order for a message to be created and viewable on the DAJAZl.COM 

homepage and "MP3 Downloads" webpage. Secondly, I noticed that 

the "Splash" username matched the name listed in the "About Me" 

section of the DAJAZ1.COM homepage and was further contained in 

several of the email addresses listed on the DAJAZ1.COM homepage. 

Based on my training and experience, I know that administrator 

access is required to create and modify sections of websites and 

webpages, such as the above-referenced "About Me" section. 

B. Downloads of Infringing Content via DAJAZ1.COM 

79. I used the DAJAZ1.COM website to link to cyberlockers 

and stream and/or download illegal copies of songs. On or about 

the dates listed in the chart below, I clicked on links for the 

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bool .... Hated .ong8 on ~h" DAJAZl.t'OM ... "boo1t. an'" "tra.-d .nd/or 

_l~ tt141 aong. froa tt141 bool .... -l!.t""- cyboorloc:ker .tu ... 

Wh"n indl<:"tll'" In tlla b001 .... eMrt. ""a or OIICra of tha avall,ble 

_load link' had be"n r..",ed on tha ..... ign.ued cyt>.doc:l:llr 

_"-h ........ pl."8d by t ........ ng .. "Thb fUll b dt""" """""'lid 

due to CopyTlght Chilo. bo.. Expired or 1. d<ola'lId by tt.. 

upl ... d<tr." '!'be 'llC"on Cpr del.Ugn" ..... duc"iboed .. 

-Yntecn.atio"..l F .. d" .. uion ot t.h.oo Phoo>og-r"pillc lndu .. ry \IPPl)·. 

'0. 11 ... 01 on '"Y rev! ... of- public record. lhUng •• a. well 

... C<>nve ... "UDnII with RlAA npu_ .. nt~t h .... 1 know ttwl"- .. ot 

Octoboor 2'. 2010. all of the .bove·nfannCld 8ORg" were 

"'e.enain.'" to be ·"".·rd ..... • or not. yilt ral.aa ed fOr purc""" 

CO ch" 9 ....... 81 public. th .... e were copyd9hted. and tIM copyri91't 

hold ..... U'" not. ,"uthorlu t halr third party "'htribution over the 

lnt.met by DAJM1.COM at" any oUler _ b d t •. 

U. On OCtober n. 2010, tCI .genu .ublloitted .""'PI ... of 

the .bovoo·nfarenced ... ltl_1" lilu to RI ...... ViclI Prllaident ot 

AnU·Pincy I.eg .. 1 Aflain C.r loB U""r@8 . 
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82 On or about October 28, 20~0, Linares examined samples 

of the pirated songs that I obtained from DAJAZ1.COM. Linares 

informed me that the pirated songs were unauthorized copies of 

rights holder's works. 

C. Advertisements on DAJAZ1.COM 

83. Advertisements appear on various portions of the 

DAJAZ1.COM website, including on pages that include download 

links to pirated music. 

84. On or about October 28, 2010, I obtained information 

from ValueClick, Inc. indicating that an account had been created 

for the DAJAZ1.COM website. The account was established on or 

about September 24, 2010 but "no money [had been] earned yet." 

According to documents produced by ValueClick, 

bigsplashl024@aol.com was the contact email address for the 

account listed under "Account Information" and held the status of 

"Superuser" and the title of "Owner". 29 The information obtained 

from Value Click indicates that while DAJAZl.COM had not yet 

earned any advertising revenue because its account was recently 

29 Bigsplash1024@aol.com contained the above referenced DAJAZ1. COM 

administrative username "Splash" and is one of the email 

addresses listed under the "About Me" section of the DAJAZ1.COM 

homepage. 

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opened, the website is set up to earn advertising revenue from 

ValueC.lick in the future. 

D. The DAJAZ1.COM Domain 

85. According to valuethewebsite.com, as of on or about 

November 12, 2010: 

a. The Alexa.com ranking for DAJAZ1.com shows 

it was the 71,024th most popular website in the United States; 

b, DAJAZl.com had 3,555 daily page views; 

c. DAJAZl.com had an estimated worth of 

25,907.00~ 

86. A search of publicly available Whols domain name 

registration records revealed that the DAJAZl.COM domain was 

registered on or about February 29, 2008 through the registrar 

Fast Domain, Inc. which has its headquarters at 1958 South 950 

East, Provo, Utah 84606. The publicly available WHOIS database 

lists the registrant of the DAJAZl.COM site as HostMonster.Com, a 

company which protects the identity of domain registrants by 

placing their information in WhoIs and providing an option to 

redirect email and regular mail to the customerls real address. 

87. Publicly available WhoIs records also revealed that the 

DAJAZ1.COM site is hosted on a computer assigned IP address 

74.220.215.217, which is owned by Bluehost, Inc. located at 1958 

South 950 East, Provo, Utah 84606. 

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The ONSMASH.COM Website 

A. General Description 

88. Based on my review of webpages available at 

the ONSMASH.COM website on October 12 and October 26, 2010, I 

have learned the following: 

a. ONSMASH.COM is a linking website. The site's 

homepage displays album covers and recording artist photographs, 

short descriptions, and links for numerous pirated songs. 

b. The ONSMASH.COM website homepage contained a link 

titled "Music." Upon clicking the Music link, the user is 

directed to a new page which displays additional album covers and 

recording artist photographs, short descriptions, and links for 

numerous pirated songs. For example, on or about October 26, 

2010, the ONSMASH.COM "Music"· webpage displayed album covers and 

recording artist photographs, descriptions and links for, among 

other songs, \\CASSIDY·- HIGH OFF LIFE (FEAT. JUNIOR REID) ," 

"JAMIE FOXX - FALL FOR YOUR TYPE (FEAT. DRAKE)," and "KID CUDI -

MR. RAGER." I was also able to click on a link titled "Next 

Page" which allowed me to individually view prior home pages from 

the website; these home pages, taken together, included what 

appeared to be hundreds of links to pirated songs. 

c. Upon clicking a link for one of the songs, the 

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user is directed to a new page containing the title of the song, 

the artist(s) who produced it, a description, the date which it 

was posted on the website, a photograph of the artist or album 

which featured the song, the administrative user responsible for 

uploading the file or message and multiple streaming and/or 

download links. 

d. On or about October 26, 2010, I noted that 

approximately 12 administrative message postings had been 

created, by the website administrator with the username 

II thekidLEGEND . II 

e. During my investigation, I concluded that the user 

"thekidLEGEND" is an administrator and/or representative of 

ONSMASH.COM. I came to this conclusion based on the significant 

fact that "thekidLEGEND" created the aforementioned ONSMASH.COM 

message postings which later contained pirated song files. Based 

on my training and experience, I know that administrative user 

access is required in order for a message to be created and 

viewable on the ONSMASH.COM homepage and "Music" webpage. 

f. When a user clicks on the link for the particular 

song file, for example "KiD CuDi - Mr. Rager", the user is 

directed to a webpage that features more descriptions by the 

administrator "thekidLEGEND." The message which was posted 

beneath the album cover and above the download link for the 

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above-referenced "KiD CUDi" song contained the following 

information: 

This track actually leaked a couple months back, back 

when a couple CUDi songs were hitting the nets a bit 

early but this is the final version of the title track 

from Man On The Moon II: The Legend of Mr. Rager. We 

must have to say, this might be one of the more 

anticipated albums we're looking forward to in the 4th 

quarter ... You can pre-order the album on iTunes tomorrow 

& receive a bonus track on the day of release. 3o 

89. A picture of the cover art for the "Man On The Moon II: 

The Legend of Mr. Rager" album was included above the abovereferenced description and depicted the registered certification 

mark "PARENTAL ADVISORY EXPLICIT CONTENT".31 

B. Downloads of Infringing Content via ONSMASH.COM 

90. I used the ONSMASH.COM website to link to cyberlockers 

and stream and/or download illegal copies of songs. On or about 

the dates listed in the chart below, I clicked on links for the 

below listed songs on the ONSMASH.COM website and streamed and/or 

downloaded the songs from the below-listed cyberlocker sites. 

)0 The term "Leaked," as used in the above description, refers to 

the unauthorized disclosure of copyrighted multimedia content. 

31 According to the USPTO, the certification mark PARENTAL 

ADVISORY EXPLICIT CONTENT is a registered trademark assigned to 

the registrant Recording Industry Association of America, Inc. 

Corporation New York 1025 F Street, N.W., 10tb Floor, Washington 

D.C. 20004. The serial number of the mark is 78142l96, the mark 

was registered on or about January 6, 2004 and the mark is active 

and live. 

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·lO/2: /2011 Last Wish !jj 

Ray J SRC Records Media fire. com 110/21/2011 In for the La Rouxe it. Interscope Mediafire.com 

Kill (remix) Kanye West 

10/21/2010 Wet Wet Ace Hood Island De£ Jam Mediafire. com 10/21/2010 Dollar Signs Three 6 Mafia Columbia Mediafire.com 10/21/2010 Wallstreet Romeo No Limit Mediafire. com 

Records 

10/21/2010 Alphabet Boys Consequence Motown Mediafire. com 10/21/2010 Today My Life Bruno Mars Elektra Mediafire. com 

Begins 

10/21/2010 The Bizness Ca$his Shady Mediafire. com 

Aftermath 

10/26/2010 Fall For Your Jamie Foxx RCA Hulkshare. com 

Type 

10/26/2010 Mr. Rager Kid Cudi UMG Hulkshare . com 

91. Based on my review of public records listings, as well 

as conversations with representatives of the RlAA, I know that as 

of october 26, 2010, all except one of the above-referenced songs 

were determined to be "Pre-release" or not yet released for 

purchase to the general public, all were copyrighted, and the 

copyright holders did not authorize their third party 

distribution over the Internet by ONSMASH.COM or any other 

website. 

92. On October 27, 2010, ICE agents submitted samples of 

the above-referenced multimedia files to RlAA Vice President of 

Anti-Piracy Legal Affairs Carlos Linares. 

93. On or about October 28, 2010, Linares examined samples 

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of the pirated songs that I obtained from ONSMASH.COM. Linares 

informed me t0at the pirated songs were unauthorized copies of 

rights holder's works. 

C. Advertisements on DAJAZ1.COM 

94. Advertisements appear on various portions of the 

ONSMASH.COM website, including on pages that include download 

links to pirated music. 

95. On or about October 28, 2010, I received information 

from ValueClick, Inc. indicating that an account had been created 

for the ONSMASH.COM website. The account was established on or 

about January 10, 2008 and "makes $200-$400 [per] month". 

According to documents produced by ValueClick, Complex Magazine 

was the name listed for the account listed under "Account 

Information" and held the status of "Superuser," and the title of 

"Operator". Information returns from Value Click indicated the 

following information reflecting advertising revenues being paid 

to the owners of ONSMASH.COM for advertisements appearing on 

various portions of the ONSMASH.COM website, corresponding to the 

number of people that view and interact with the website. 32 

n It should be noted that ValueClick is only one of mUltiple 

online advertising companies that ONSMASH.COM uses on its website 

and thus is not the only advertising company which provides 

revenue to the ONSMASH.COM website owners. Thus the above 

advertising revenues reflect only a portion of the advertising 

profits that the owners of ONSMASH.COM are receiving. 

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D. T1!' IliSXMH. COI! l!O!UI.III 

U. Accord!nq ~ val ... thoo_t..ita . .,.,., ..... o! on or abollt 

cv~_r l~. 2Q)O, 

a. Thl! AI"" •. """ .. anl<ing fo~ OO-.h.""," .110><. 

it ...... tho! ',520" _~ popular .... boIit. In thoo United State., 

b. on.s.a.h . .,.,., had 54.nz 4 ... 1.,. p.IIg" vi ..... ; 

c. On.a-.a.Il.c"," to.<! an uti_ted wortll 01 

$ 2n,U1.00. 

97. A .aan:h or publlc:ly • ......Jlahl. IIHOIS &-aln....-

ragt.tnd"", re<!On:t. ravoo.led that the OItSIlASII.COM _h, .... 

",gbt<tred on or about IU..,. 17. 1'99 through Ull! r e gian n 

~dCly."ooa, 1'nc. which tw.. ita Ilndql.L3rtera at 14455 II. )fafd"n 

Road. Suit. ll!l, SCottedale. lU-'i=na nZ60. 'l'he publicI.,. 

avAilabl .. Whoa d.&t.&IM.a .. liau thoI r-vbtr.nt of tM OIISIO.SII.CQM 

dt .. aa Priv"te, I("giauadon _ins by Proxy. Inc., ... co-po.n.,. 

wIIlch prot .. cta the identit.,. of -''In .... !lI.tunu by pl."lng 
114 


74504J2-66.eps

their information in WhoIs and providing an option to redirect 

email and regular mail to the customer's real address. 

Publicly available WhoIs records also revealed that the 

ONSMASH.COM site is hosted on a computer assigned IP address 

207.58.138.102, which is owned by ServInt located at 6861 Elm 

Street 4th Floor, McLean, Virginia 22101. 

VI. 

STATUTORY BASIS FOR SEIZURE AND FORFEITURE 

98. Title 18, United States Code, Section 2323(a} (1) (A) and 

(E) provide, in relevant part, that any property used, or 

intended to be used to commit or facilitate criminal copyright 

infringement (18 U.S.C. § 2319; 17 U.S.C. § S06(a)), or 

constituting or derived from proceeds obtained directly or 

indirectly from the violation of Title 18, United States Code, 

Section 2319 and/or Title 18, United states Code, Section 

2319(d} (1) are subject to both civil and criminal forfeiture to 

the United States government. 

99. Title 18, united States Code, Section 2323(a) (2) 

provides that the procedures set forth in Chapter 46 of Title 18 

(18 U.S.C. § 981, et seq.) shall extend to civil forfeitures 

under Section 2323(a). Title 18, United States Code, Section 

981(b) (I) authorizes seizure of property subject to civil 

forfeiture based upon a warrant supported by probable cause. 
115 


74504J2-67.eps

Title 18, united States Code, Section 981(b) (3) permits the 

issuance of a seizure warrant by a judicial officer in any 

district in which a forfeiture action against the property may be 

filed and may be executed in any district in which the property 

is found. 

100. Neither a restraining order nor an injunction is 

sufficient to guarantee the availability of the SUBJECT DOMAIN 

NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and 

redirecting them to another website, the Government will prevent 

third parties from acquiring the names and using them to commit 

additional crimes. Furthermore, seizure of the SUBJECT DOMAIN 

NAMES will prevent third parties from continuing to access the 

five websites listed above. 

101. As set forth above, there is probable cause to believe 

that the SUBJECT DOMAIN NAMES are subject to both civil and 

criminal forfeiture because they were used in the commission of 

criminal copyright infringement and conspiracy to commit criminal 

copyright infringement. 

II 

I I 

II 

II 

II 
116 


74504J2-68.eps

VII. 

SEIZURE AND FORFEITURE PROCEDURE 

102. As detailed in Attachment A, upon execution of the 

seizure warrant, the registry for the ".net" and 

".com" top~level domains, Verisign, Inc., headquartered at 21355 

Ridgetop Circle, Lakeside III, Dulles, Virginia 20166 

("Verisign") f shall be directed to restrain and lock the SUBJECT 

DOMAIN NAMES pending transfer of all right, title, and interest 

in the SUBJECT DOMAIN NAMES to the United States upon completion 

of forfeiture proceedings, to ensure that changes to the SUBJECT 

DOMAIN NAMES cannot be made absent court order or, if forfeited 

to the United States, without prior consultation with ICE. 

103. In addition, upon seizure of the SUBJECT DOMAIN NAMES 

by ICE, Verisign will be directed to point the SUBJECT DOMAIN 

NAMES to a particular IP address, which will display a web page 

notifying users, inCluding the registrants, of the seizure of the 

SUBJECT DOMAIN NAMES. 

104. Registrars also maintain certain records relating to 

the owner of each domain name for which it is the top-level 

registry, including the SUBJECT DOMAIN NAM:ES (the "Domain Name 

Records n ). Certain of these records are available to the public 

through a "Whois" lookup through a web browser, among other 

means. At the time the SUBJECT DOMAIN NAM:ES are seized, the 

67 
117 


74504J2-69.eps

relevant registrars will be directed to change the "Technical 

Contact" and "Administrative Contact" fields of the Domain Name 

Records for the SUBJECT DOMAIN NAMES to contact information 

relating to ICE to reflect the fact that the SUBJECT DOMAIN NAMES 

have been seized; and to change the name server fields of the 

Domain Name Records to effect the forgoing changes. All other 

fields will be changed so that they do not reflect any individual 

or entity. 

105 Upon completion of forfeiture proceedings, all Domain 

Name Records for the SUBJECT DOMAIN NAMES will be changed to 

reflect the transfer of ownership to the United States. 

VIII. 

CONCLUSION 

106. Based on the information contained in this a'ffidavit 

there is probable cause to believe that the SUBJECT DOMAIN NAMES 

are property that has been used, or are intended to be used to 

commit or facilitate criminal copyright infringement. 

Accordingly, the SUBJECT DOMAIN NAMES are SUbject to civil 

forfeiture under 18 U.S.C. § 2323(a} and seizure pursuant to 

18 U.S.C. I 981(b). 

II 

II 

II 

68 
118 


74504J2-70.eps

Accordingly, it is requested that the seizure warrants be 

issued for the following SUBJECT DOMAIN NAMES: 

RAPGODFATHERS.COM, 

TORRENT-FINDER. COM, 

RMX4U.COM, 

DAJAZ1.COM, and 

ONSMASH.COM. 

Immigration and Customs Enforcement, 

Homeland Security Investigations 

Subscribed and sworn to before 

me on this 17th day of November 2010. 

THE ~~= ~~!1~ NAGLE 

UNITED STATES MAGISTRATE JUDGE 

69 
119 


74504J2-71.eps

ATTACHMENT A 

I. Seizure Procedure 

A. The seizure warrant will be presented in person or 

transmitted via facsimile or email to personnel of the domain 

name registry listed in Section II ("Subject Registry") and the 

domain name registrars listed in section III ("Subject 

Registrars") who will be directed, for the domain names listed in 

section IV ("Subject Domain Names'/) for which it serves as the 

top-level domain registry, to make any changes necessary to 

restrain and lock the domain names pending transfer of all 

rights, title, and interest in the Subject Domain Names to the 

United States upon completion of forfeiture proceedings. 

B. Upon seizure of the Subject Domain Names, the Subject 

Registry shall point the Subject Domain Names to IP address 

74.81.170.110, at which the Government will display a web page 

with the following notice: 

This domain name has been seized by ICE - Homeland 

Security Investigations, pursuant to a seizure warrant 

issued by a United States District Court under the 

authority of L8 U.S.C. §§ 981 and 2323. 

Willful copyright infringement is a federal crime that 

carries penalties for first time offenders of up to 

five years in federal prison, a $250,000 fine, 

forfeiture and restitution (17 U.S.C § 506, 18 U.S.C. 

§ 2319). Intentionally and knowingly trafficking in 

counterfeit goods is a federal crime that carries 

penalties for first time offenders of up to ten years 

in federal prison, a $2,000,000 fine, forfeiture and 

restitution (18 U.S.C. § 2320). 

C. Upon seizure of the Subject Domain Names, the Subject 

Registry shall take all steps necessary to restrain and lock the 

domain at the registry level to ensure that changes to the 

Subject Domain Names cannot be made absent a court order or, if 

forfeited to the United States government, without prior 

consultation with United States Immigration and Customs 

Enforcement. The DNS record should be altered to remove any 

applicable name servers. 
120 


74504J2-72.eps

D. Upon seizure of the Subject Domain Names, the Subject 

Registrars shall modify any records, databases, tables, or 

documents that are used by the Subject Registrars to identify the 

owner of the Subject Domain Names to reflect the seizure of the 

Subject Domain Names. These changes relate to the following 

records, if they exist: 

1. The "Technical Contact" and "Administrative 

Contact" fields will reflect the following information: 

a. Name: 

b. Address: 

c. Country: 

U.S. Immigration and Customs 

Enforcement 

National Intellectual Property 

Rights 

500 12th Street SW 

Washington, DC 20024 

USA 

d. Telephone: l-866-IPR-2060 (477-2060) 

e. Email: IPRCenter@dhs.gov 

f. Fax: 202-307-2127 

2. Any remaining fields will be changed so they do 

not reflect any individual or entity. 

E. The subject Registry shall take any steps required to 

propagate the changes detailed in Section D to any applicable DNS 

servers. 

II. Subiect Registry 

Verisign, Inc. 

21355 Ridgetop Circle 

Dulles, Virginia 20166 
121 


74504J2-73.eps

III. Subject Registrars 

Enom, Inc., 

15801 NE 24th Street 

Bellevue, Washington 98008 

Blue Razor Domains, Inc. 

14455 North Hayden Road, Suite 226 

Scottsdale, Arizona 85260 

Godaddy.com, Inc. 

14455 N. Hayden Road, Suite 219 

Scottsdale, Arizona 85260 

Fast Domain, Inc. 

1958 South 950 East 

Provo, Utah 84606 

IV. Subject Domain Names 

RAPGODFATHERS.COM, 

TORRENT-FINDER. COM, 

RMX4U,COM, 

DAJAZl.COM, and 

ONSMASH.COM 
122 


74504J2-74.eps
123 


74504J2-75.eps
124 


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131 

Ms. JACKSON LEE. Mr. Chairman, I have a parliamentary inquiry, please. 

Mr. SMITH. The gentlewoman will state her parliamentary inquiry. 

Ms. JACKSON LEE. I appreciate it very much, Mr. Chairman. 

The gentleman from California in his statement about his own 

subpoena mentioned today that he did not request wiretaps under 

seal. And in Mr. Issa’s contempt citation, the wiretap applications 

document the extensive involvement of the Criminal Division in 

the Fast and Furious—— 


74504J2-83.eps
132 

Mr. SMITH. Would the gentlewoman state her parliamentary inquiry? 

Ms. JACKSON LEE. Yes, I will. My question is, did anyone review 

with the Justice Department before this hearing—— 

Mr. SMITH. That is not a parliamentary inquiry. 

Ms. JACKSON LEE.—whether the use of this leaked information 

will harm the Department’s ability to bring justice to those who 

violated our laws? 

Mr. SMITH. Ms. Jackson Lee, that is not a parliamentary inquiry. 

Ms. JACKSON LEE. It refers to the questioning of Mr. Issa in this 

hearing. If not, how do we know that the use of the information 

during this hearing, if asked, is consistent with—— 

Mr. SMITH. Ms. Jackson Lee, we are going to have to deduct this 

from your time if you continue. That is not a parliamentary inquiry. 

Ms. JACKSON LEE. I believe it is, Mr. Chairman. But I hope that 

we have reviewed—— 

Mr. SMITH. The gentleman from Virginia, Mr. Forbes, is recognized for his questions. 

Mr. FORBES. Thank you, Mr. Chairman. 

General, thank you for being here today. 

And I think, despite all the rhetoric, we know that this Committee is not asking you to break the law regarding what you say 

or information you provide to Congress. It is just, as you know, it 

doesn’t matter if you appear in Congress 7 times or 70 times, if, 

when you are asked, you say ‘‘I don’t know’’ to the questions that 

are most pertinent. Or it doesn’t matter if you supply 7,000 pages 

or documents or 700,000 pages if they are not the proper papers 

to answer key questions. 

So I want to begin where you began, and that was the standard 

that you said that you have in the Department, which is that every 

action is guided by law and facts and nothing else. I think I stated 

that correctly. Is that fair? 

Attorney General HOLDER. Well, certainly when we are at our 

best, that is what happens. 

Mr. FORBES. We know that every Cabinet Secretary doesn’t adhere to that standard. In fact, we have in a paper today the fact 

that several Cabinet members were required to come to a meeting 

at the Democratic National Committee headquarters, where the 

campaign manager, the top strategist for the campaign, the executive director of the Democratic National Committee, was there telling them the actions that they should take in four items: to help 

the President win re-election, regarding the campaign structure, 

the importance of the Electoral College, and the importance of staying on message. 

The question I want to ask you this morning is, I know that you 

are familiar with David Axelrod, who is Obama’s top campaign 

strategist. And to the best of your knowledge, has Mr. Axelrod or 

anybody on his behalf or anybody on behalf of the campaign had 

any discussions with you or members of the Justice Department regarding actions that you should or should not take, messaging that 

you should or should not make, or hiring decisions that you should 

or should not support? 

133 

Attorney General HOLDER. Absolutely not. I mean, one of the 

things that I like a great deal about my interaction with people in 

the White House is that—and I think they take their lead from the 

President—is that they have respected what I would call a wall 

that has to exist between the Justice Department and the political 

operation that goes on in the White House. I have not had any of 

that kind of interaction. 

Mr. FORBES. So there have been some publications out, and, of 

course, we never know whether these publications are accurate or 

not, but at least in one book that claims that you and Mr. Axelrod 

had some type of confrontation when he was trying to get you to 

hire someone. And you are saying that is not accurate at all; you 

have never had any kind of meetings with him regarding any hiring decisions at the Department of Justice. 

Attorney General HOLDER. No, we talked about, not a hiring decision, we talked about ways in which we might improve the ability 

of the Justice Department to respond to political attacks that were 

coming my way. 

David Axelrod and I are good friends. He is a close friend of 

mine. We have a great relationship. He is a person I respect a 

great deal. We worked together on the campaign while he was at 

the White House. But he has never done anything that I would 

consider inappropriate. 

Mr. FORBES. But, then, what you are saying is you have had contact with Mr. Axelrod, campaign strategists, about how you should 

handle different attacks coming to you as Attorney General, correct? 

Attorney General HOLDER. Yeah, I mean, there is a political dimension to the job that I have as Attorney General. I mean, the 

reality is that I don’t sit up in an ivory tower and just do law enforcement. I am the subject of attacks. I am a person who was seen 

by some as pretty controversial. And there are times, or at least 

there was that time, when I was looking for some help in that regard. 

Mr. FORBES. So you have had those discussions. Did he ever try 

to encourage you to hire or put any particular person at the Department of Justice? 

Attorney General HOLDER. No. 

Mr. FORBES. With Fast and Furious, there has been a lot of discussions about it, and we know that is a big item not just for us, 

but the Ambassador to Mexico has said that that operation, which 

took place under your watch, has poisoned the Mexican people and 

really put a strain on strides we have made in two successive Administrations in the United States. He has been concerned that the 

investigation hasn’t been completed. 

Have you ever had any consultation with the White House or 

anyone with the campaign or with Mr. Axelrod about messaging related to Fast and Furious? 

Attorney General HOLDER. About messaging with regard to Fast 

and Furious? 

Mr. FORBES. Yes. Comments that were made, how you were 

going to message it, any of that. 

Attorney General HOLDER. Well, we have certainly talked about 

the way in which we could deal with the interaction between the 

134 

Justice Department and Congress, about ways in which I would, 

we would—— 

Mr. FORBES. But nothing about press messaging at all? 

Attorney General HOLDER. Well, I mean, in terms of trying to get 

a message out that was consistent with the facts and make sure 

that it was done in an appropriate way, I have had conversations 

like that with people in the White House Counsel’s Office. 

Mr. FORBES. Okay. 

Just two other quick questions. I know that you have filed actions against Arizona, South Carolina, Utah, and Alabama—all Republican Governors. My time is up. Would you give us a list of any 

similar actions of a similar profile you have filed against any 

Democratic Governors—States with Democratic Governors. 

And, also, the final thing is, if you will let us know if you had 

any relationship or meetings with the White House and members 

of the campaign about any of the messaging or any of these actions 

that took place on that. 

And, Mr. Chairman, my time has expired. 

Mr. SMITH. Thank you, Mr. Forbes. 

Attorney General HOLDER. One thing in regard to the question 

of the Governors, I am not sure that there has been a photo ID attempt made by a State run by a Democratic Governor. 

Mr. FORBES. No, no, I wasn’t asking about photo IDs. I think, if 

you look at these States, they were regarding, I think, immigration 

policies. But any action that you have taken against a Democratic 

Governor of a similar high profile with an investigation—— 

Attorney General HOLDER. Well, I think with regard to the immigration laws, as I understand it—and I can check, but I don’t think 

that there has been a similar immigration attempt made by States 

run by Democratic Governors, which would be the reason why we 

have not opposed them. But I will check, and we will share that 

information with you. 

Mr. FORBES. And, also, Mr. Attorney General, when you check, 

if you would make sure you let us know the contacts you had with 

Mr. Axelrod regarding any messaging or anything that might come 

regarding those actions. 

Thank you. 

Mr. SMITH. Okay. Thank you, Mr. Forbes. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

questions. 

Ms. JACKSON LEE. I thank the Chairman, and I thank the Ranking Member. And I certainly thank the Attorney General for his 

service. 

I just wanted to add what I don’t think, very quickly, was in the 

introduction of the Attorney General. And then my series of questions, Mr. General, without any disrespect will be bullet-like, not 

toward you but questioning, so that I can get a series of questions 

in. 

But I did note that you were a Deputy Attorney General under 

the Bush administration. You continued to serve, I think, through 

the time that you were appointed under President Obama. Is that 

correct? Did you remain during that time? 

Attorney General HOLDER. Little-known fact: I was George 

Bush’s first Attorney General. 

135 

Ms. JACKSON LEE. I think that should be made clear for the 

record, because you have had a continuous public service commitment. You were in the private sector for a moment, but between 

a judgeship and the superior court, that I understand you were appointed by President Ronald Reagan at that time. Is that correct, 

Mr. Attorney General? 

Attorney General HOLDER. That is correct. 

Ms. JACKSON LEE. Let me thank you again for your service and 

ask a series of questions. 

I will be giving to you today, June 7th, a letter to ask for the 

investigation of the State of Texas for its purging of 1.5 million voters. And I encourage and hope that there will be a speedy review 

inasmuch as we are in a process of election, a November 2012 election. And I do want to just ask the questionon this issue of voting. 

And my good friend from California wanted to establish certain 

rights, egress, ingress, but the protection of access under the First 

Amendment. 

And I want to just focus, if you wanted to petition your government and use no government ID, most could either take their vehicle, hitch a ride, but they would not be totally prohibited from exercising that constitutional right. And you made a point about fundamental right, but if you were denied the right to vote, there is no 

alternative, is there not? There is no other way—maybe you could 

get a bullhorn in the middle of the street, but there is no way that 

you could impact the choice of those who will govern. 

Could you just be very quick on that answer, please? 

Attorney General HOLDER. No, I think that is right. If you want 

to directly impact governmental policy, who is setting those policies, that is directly tied to the ability to vote, to cast a ballot. 

Ms. JACKSON LEE. So do you believe it is a legitimate duty, action of the Division on Civil Rights of the Department of Justice, 

operating under existing current law, to assess issues of purging or 

the impact of the voter ID law? 

Attorney General HOLDER. Absolutely. We apply the law that 

was passed by this Congress as early as 1965, reauthorized as recently as 6 years ago, overwhelmingly by Congress—— 

Ms. JACKSON LEE. Are you going outside the bounds of the law 

when you, in essence, review Florida or Texas or Ohio or Indiana, 

the case preceding the Indiana case? Are you outside the boundaries, as you can assess? 

Attorney General HOLDER. All we are doing is applying the law 

that exists and has existed for over 40 years now. 

Ms. JACKSON LEE. With respect to the affordable care decision 

which is pending, but I just want a simple question. Do you feel 

that there was an adequate review—and the decision ultimately 

rested with the Supreme Court, which I think has done a decent 

and fair job on recusals with respect to Justice Kagan. Could you 

have done anything more than what was appropriately done by the 

Justice Department? 

Attorney General HOLDER. With regard to the recusal issue? 

Ms. JACKSON LEE. Yes. 

Attorney General HOLDER. I don’t think that we should have 

done any more. The question of recusal, I think, is something best 

brought up by the litigants in the case. They had that opportunity; 

136 

I don’t know if they raised it or not. But I think the Justice Department has done all it can, certainly responding to FOIA requests. 

And all information that I think appropriately can be shared has 

been shared. 

Ms. JACKSON LEE. I appreciate it. 

We are certainly saddened by the loss of life that was resulted 

by the Fast and Furious. I think you have said that often. And are 

you aware of the report produced by Ranking Member Elijah 

Cummings? 

Attorney General HOLDER. Yes. 

Ms. JACKSON LEE. And were you aware that in the—do you believe that under this report that his staff and Ranking Member 

Cummings of the Oversight Committee extensively reviewed either 

the 7,600—or at least the whirl of information that was given? 

Attorney General HOLDER. Yes, I think they did a good job of reviewing the information. They produced a good report that contains 

a number of reforms that we have tried to implement. 

Ms. JACKSON LEE. Quickly, the statement says that they found 

no politically motivated operation, that Fast and Furious was not 

conceived and directed by high-level Obama administration political appointees at the Department of Justice. Would you concede 

that they would have the basis to say that? 

Attorney General HOLDER. I think if one looks at the documents, 

that statement is manifestly true. 

Ms. JACKSON LEE. Can I ask you, as well, to investigate and are 

you concerned or have you seen the impact of single-race-based juries in a number of cases? This has been an issue in a number of 

areas, particularly in the South, in cases that are particularly sensitive. 

I am going to ask you to investigate the Chad Holley case, which 

is a beating incident that occurred in Houston, Texas, and the series of trials that are coming forward. But, in particular, one case 

was tried by a single-race jury and, of course, resulted in the acquittal. Would you please take this as an official request for the 

Justice Department to investigate the beating and the resulting 

trial that was a single-race jury in the case of Chad Holley? 

Attorney General HOLDER. I mean, the Supreme Court has recognized that the selection process—that a deliberate attempt at creating a jury of a single race, under the Batson case, is not appropriate. 

I am familiar with the Holley case, not intimately familiar with 

it, but I am familiar with the Holley case. And that is something 

that we are in the process of determining what course of action we 

should take. 

Mr. SMITH. Mr. Attorney General, a number of Members today 

have made requests from you of information. When can they expect 

those requests to be responded to? Within 2 weeks or so? 

Attorney General HOLDER. We will do the best that we can, and 

quickly as we can. I am a little surprised that we have not responded at least to some of the things that have been raised in connection with the last time that I was here—— 

Mr. SMITH. Uh-huh. 

Attorney General HOLDER [continuing]. But we will try to do a 

better job than that. 

137 

Mr. SMITH. Okay. 

Ms. JACKSON LEE. I thank the Chairman. 

Thank you, Mr. General. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

The gentleman from Iowa, Mr. King, is recognized. 

Mr. KING. Thank you, Mr. Chairman. 

Thank you, Attorney General, for being here to testify today. 

Just in picking up on the Chairman’s remarks, I would point out 

that I had a series of questions that I asked December 8th here. 

And although we haven’t pressed relentlessly for those responses, 

I haven’t seen them. And so I am going to be submitting a new request from December 8th and then additionally here for this today, 

I believe. 

But I think, first of all, there is one piece left on the Fast and 

Furious I would just ask you, that—can you tell me when you first 

started to doubt that the original letter was inaccurate? Can you 

tell me what piece of information caused you to do that? 

Attorney General HOLDER. Yeah, I mean, I think my first doubts 

happened just before, or just about the same time that I asked for 

the inspector general to conduct a report. As I listened to media reports and things I was getting from Senator Grassley, I had some— 

that is when I think my doubts first began about the accuracy of 

the February 4th letter. 

Mr. KING. Was there a piece of information, though, in particular 

in those media reports that caused you to doubt, or just the information itself? You thought you had to look into it? 

Attorney General HOLDER. I am not sure I can remember anything specific. But I do remember that the reports were inconsistent with what I was hearing from people within the Department and also inconsistent with what Senator Grassley was telling 

me in a letter I think that he sent to me, like, on February 9th or 

something like that. 

Mr. KING. Okay. Yeah, I have a February 4th letter denying ATF 

ever walked guns. That was from 2011. I don’t have the date of 

Senator Grassley’s letter, but that letter was formally withdrawn 

on December 2, 2011. That is consistent your testimony, though, I 

recognize. And I thank you. 

And then I would take us back to the Pigford issue and the discrimination issues that we discussed the last time, General Holder. 

And now—we discussed Pigford then, and I posed the question 

that, in the farm bill of 2008, consistent with, I believe, your testimony and also a statement made personally to me by Secretary 

Vilsack, that the farm bill authorized the negotiations in the agreement that ultimately lays out in the terms of $1.25 billion to be 

distributed to Black farmers who have claims of discrimination. 

And the authorization within the farm bill is $100 million, and that 

is to cap that for all of the settlements that are there. 

And now I see that not only is it not capped at $100 million, it 

has been expanded to $1.25 billion, and that we have three other 

cases out here since that period of time: Garcia v. Vilsack, 

Keepseagle v. Vilsack, Love v. Vilsack. And when I total them up, 

it is $1.33 billion in this order, Garcia; $760 million, Keepseagle; 

$1.33 billion, Love—coincidence, I suppose, $1.25 billion, Pigford; 

for a total of, all together, $4.93 billion poised to—either having 

138 

been distributed or poised to be distributed under these discrimination cases, a lot of it, $3.58 billion, coming out of the judgment 

fund. 

And can you tell me how much is in the judgment fund, and is— 

I am going to ask you to produce a report of the funds that come 

in and the funds that are distributed out of the judgment fund. I 

think this Congress needs an oversight if we are dealing with numbers that are approaching $5 billion. 

Attorney General HOLDER. What I can say is that those settlements that were reached, we set pools of money that can be tapped 

if people can prove that, in fact, they were discriminated against. 

There is certainly an unfortunate history of discrimination that I 

think everybody acknowledges exists between the Department of 

Agriculture in dealing with farmers of a variety of ethnicities and 

genders, and the attempts at structuring these settlements was to 

deal with, redress those wrongs. 

Mr. KING. But $5 billion in round figures, 4.93 billion, that is a 

big chunk of money to be distributed without congressional oversight. And do you have any resistance to Congress taking a look 

at that data, the contingency fees and the distributional amounts, 

and the sources of that money and the amounts? 

Attorney General HOLDER. No, I mean, I think that is legitimate 

oversight to talk about the way in which the cases were settled, 

how it impacts the judgement fund. 

Mr. KING. Thank you. But then I will follow up with a more specific question, but I want to also ask you about your reaction when 

you saw the video of the young man who claimed your ballot here 

some months ago, and your reaction toward requirement for a 

photo ID after you saw that video. 

Attorney General HOLDER. Yeah, I mean, it is an attempt to 

show something, I suppose, but I think what I drew from that 

video was that that guy was very careful not to say he was Eric 

Holder, not to actually get a ballot. He didn’t do the kinds of things 

that would have subjected him to criminal prosecution. 

Mr. KING. And I am not worried about that, but he could have 

obtained your ballot with ease. It was offered to him. And so I just 

suggest this, that it may not be impossible, but I think it has been 

determined here today in the questioning of Mr. Lungren that visiting a Federal building, even your building, is maybe not impossible, but difficult without a picture ID. And if it is difficult or impossible to visit a government building without a photo ID, then 

how can we allow someone to help choose our government without 

a photo ID? 

Attorney General HOLDER. I think the question is if you look at, 

for instance, South Carolina, they had in place measures that protected the integrity of the ballot before they went to the photo ID. 

And I don’t per se say that photo IDs are necessarily bad. The 

question is how the structure is put in place, how they are distributed, whether or not it has a disproportionate impact on people of 

a certain race, certain ethnicity, a certain age group. 

Mr. KING. Well, why would it? 

Mr. SMITH. The gentleman’s time has expired. Thank you, Mr. 

King. 

The gentlewoman from California Ms. Waters. 

139 

Ms. WATERS. Thank you very much. 

We would like to welcome you, Mr. Attorney General. I have a 

number of questions I wanted to ask you, but my attention has 

been diverted to the line of questioning from Congressman Goodlatte. 

It is well known that you dismissed the charges that were placed 

against Senator Stevens following your investigation that indicated 

that certain exculpatory evidence had been withheld. Now, was 

there just one thing or were there several things that were done 

that you disagreed with that caused you to dismiss? 

Attorney General HOLDER. The thing that was the main 

motivator for my decision to dismiss the case was I thought the 

pretty solid evidence that we had uncovered, Brady material, exculpatory material, had not been shared with the defense. And I think 

that was the basis, the main motivation for my deciding to dismiss 

the case. 

Ms. WATERS. And it seems that—I think his name is pronounced 

Mr. Schuelke, S-C-H-U-E-L-K-E. 

Attorney General HOLDER. Ed Schuelke. 

Ms. WATERS. Agreed with you basically, but the punishment now 

does not seem to match the crime, prosecutorial misconduct. And 

a lot of people are wondering how does the Office of Professional 

Responsibility literally dispute the seriousness of the withholding 

of the exculpatory evidence? How do you account for that? 

Attorney General HOLDER. I wouldn’t agree that they don’t take 

it seriously. Mr. Schuelke, who I know and respect as a good lawyer, came up with a report and said that he thought the material 

was withheld intentionally. The OPR report, which was about 700 

pages long, says the information was withheld, but says it was 

done recklessly, not intentionally. And it was on that basis that the 

OPR recommendation was made as to what the appropriate sanction was. 

Mr. Schuelke never made a recommendation as to what he 

thought the appropriate sanction should be, because I think, as 

Judge Sullivan said, there was not an order that he could actually 

point to so that he could find contempt or something like that. 

So I think that is the difference between the Schuelke report and 

the OPR report, the state of mind of the person who was engaged 

who did not turn over the information, or people who didn’t turn 

over the information. 

Ms. WATERS. So in your opinion, do you believe that the recommendations for punishment by the Office of Professional Responsibility, are those recommendations basically in line with the unintentional withholding, or perhaps it could have been stronger? 

What do you think? 

Attorney General HOLDER. Well, I think it is appropriate for the 

Attorney General not to comment on these determinations because 

it is something that is not my responsibility to do. We put that in 

the hands of the career people. We have a great OPR, great Office 

of Professional Responsibility. We have a structure in place so that 

people outside of OPR look at the findings of OPR and then make 

a determination as to what the appropriate sanctions should be, 

and the people who are political in nature are really insulated from 

that process. 

140 

Ms. WATERS. So I suppose what we can conclude is that you dismissed; you felt that the withholding of the information was serious enough to dismiss? 

Attorney General HOLDER. Yes. 

Ms. WATERS. And I asked, I think, earlier was there leaking of 

information, was there sharing of information with others that it 

should not have been shared with in addition to the withholding 

of information? 

Attorney General HOLDER. No. As I remember it, the concern 

that I had was with the nonproviding of information that the defense was entitled to. That was the concern that I had. 

Ms. WATERS. And so clearly you addressed that concern, but, 

again, after having addressed it, the Office of Professional Responsibility had the responsibility to determine what the punishment 

should be, and you have no hand in that; is that right? 

Attorney General HOLDER. That is correct. 

Ms. WATERS. Okay. Well, I just wanted to get on the record that 

the withholding of the evidence was a serious matter, and that you 

made a decision based on that. 

Attorney General HOLDER. I would agree with you. Whether you 

agree with Mr. Schuelke or OPR, whether it was intentional, or 

reckless, negligent, it was serious and I think necessitated the dismissal of the case, which is what I did. 

Ms. WATERS. Thank you very much. 

I yield back the balance of my time. 

Mr. SMITH. Thank you, Ms. Waters. 

Does the gentleman from Virginia Mr. Scott have a unanimous 

consent request? 

Mr. SCOTT. Yes, thank you, Mr. Chairman. 

Mr. Chairman, I ask unanimous consent to enter into the record 

letters from the National Organization for Black Law Enforcement 

Executives, City of Philadelphia Police Department, Boston Police 

Department, and Association of Prosecuting Attorneys on behalf of 

the Attorney General; and also a copy of the draft contempt citation—we were questioning what had been asked for—draft contempt citation offered by the Committee on Oversight and Government Reform, which says in part, ‘‘The wiretap applications document extensive involvement of the Criminal Division in Fast and 

Furious, yet the Department of Justice has failed to produce them 

in response to the Committee’s subpoena,’’ so that we know exactly 

what was asked for. 

Mr. SMITH. Without objection, those documents will be made a 

part of the record. 

[The information referred to follows:] 

141 


74504B1.eps

Office of The Police Commissioner 

The Honorable Patrick Leahy 

United Slates Senate 

437 Russell Senate Building 

Washington, DC, 20515 

The Honorable Darrell [.sa 

U.S. House of Representatives 

2409 Rayburn House Omce Building 

.~--------~--~-.----.-~-.-~ 

1 Schroeder Plaza, Boston, MA 02120-2014 

May 10, 2012 

The Honorable Lamar Smith 

U.S. House afRepresentatives 

2409 Rayburn House 0ftice Building 

Dear Chainnan Leahy, Chainnan Smith, and Chainnan I,sa: 

As a member of the Major Cities Chiefs Association I am ",.iting to express my strong 

support far Attorney General Eric Holder and the progress thai has been made on behalf oflaw 

enforcement under his leadership of the Department of Justice. We are extremely concerned 

about threats to find the Attorney General in contempt of Congress in part for his commitment to 

protecting intormation related to ongoing crinlinal investigations from public disclosure. 

We urge you to consider the pressing matters that Americans are confronting each and 

every day. In our cities, crime prevention and suppression. are o.ur highest priorities and our 

efforts have been aided by Attorney General Holder's unwavering support for Ollr departments and our officers. The Department of Justice under Attorney General Holder has prioritized 

support for state and local law enforcement through improvements in the COPS Hiring Program, 

the Attorney General's Officer Safety Iultiative and the VALOR Program. These programs 

ensure that our departments and officers receive the federal support that we need in order to keep 

our communities safe. 

The ongoing Congressional inquiry to determine the facts in a tragically flawed 

operation, sp.nning at least two Administrations is understandable. The inquiry, however, has 

also distracted the Department of Justice in its effort. to assist state and iocallaw enforcement--

particularly in the area of violent crime prevention and suppression. This.causes us deep 

concern .. Therefore, we ask that you respect the Department's tradition ofwilhholding 

information related·to ongoing law' enforcement operations, rather than seeking to cile Attorney 

Geneml Holder for contempt for standing up for this important principle. 

Sincerely, 

Z;n j A <f\f.~ ~~D\Yis Pp,.~ee C.rnnnlisSloner 
142 


74504B2-1.eps

if'afh;"gtun lJC OJ/I.',, - 1615 L Streel NW. S~lr' 1100 (2Ql)861-24160 

The Honorable Darrell E. [ssa 

ChaiMnun 

Committee on Ovcrsight 

and aovemmo:nl Reform 

U.s. House ofRepresClltatives 

Washington, D.C. 20515 

The HOllorabl1." Patrick J. Leahy 

Chuinnan 

Senate Judiciary Committct! 

437 Russell Senale Building 

Washington, D.C. 20510 

May 23, 2012 

Th~ Honorable Elijah E. Cummirlg.~ 

Ranking Member 

Committee on OVCl"lii@ht 

and Government Reform 

2235 Rayburn Honse Office Building 

Washington, D.C. 20515 

The Honorable Chuek Grassle)' 

!Wilking Ml'mber 

&nate Judiciary Comminee 

135 J.{.," Senale Office Duilding. 

Washinglon, D.C. 20510 

Dear Cbainnan IsS/\, Chairman .Leahy, Congressman Cummings. wid Senator Grassley. 

TIH.~ Association ofProseeuting AItUnleys (APA) is a pri"ut~ non-profil wlJoSc mission i~ 

10 ,uppon and enhan~e the effc<:tivcness of prusccutOTS in their effons 10 creale safer 

communities. We arc the only national organimtioll to include and suppa" all 

proseculors, illcludillg both appo:nnted and elecled pruset:llLOrs, as well as their dt-plltics 

a.nd lIS!\iSt:l/llS. whether Ihe)' wosrk lIS city 8!10meY5, ,;;IY prosccutOnl, d;suiell1.uomcy~. 

stale's auomeys, attorneys gencrnt or US Dll0mcys. On bc!mlf of AJ'A, we believe thai 

the Calluni1tee's ongoing investigation inlo an opcratioll which tho Depuly Al1orn,,-y 

GeuerdJ has identified as the A 1'1"5 Ilawed response 10 tb\:: problem of gun trafllckin& 

impacts prosecutors and other IIIII' cnforcell"\eot agencies. Bl'CIIUSC of Ihisissueaoo Dill of 

coneenl for the integrity of the process and ollr profession we prtsclltlho: prosecutor's 

p"rspcctivc. 

As professional ptOsc.'ClIIOrti, we believe il is important 1.0 bold dWlgero~ off>:!lde~ fully 

3COOllllll:lble, especially when th-e allegations incilide the murder of lit IClllit IWO 13w 

enforcement officers. Those responsible fOT the murdcr of Brian Terry, fot cxampl\::, must 

f3~ consequfilCCS tha.I ensure justice and deter olher criminal enterprises and offeoder~ 

from similar conduct. ProsecUtors throughout Ihi~ country are handling case.~ every d~)" 

whicb include iruOI1l111tion from confidential Informants. "irel~p, lUId witncss\::s, who arereluelW11 to come rorward out offear for their wety as "",I] w; th~ir family ond friends. 

Our lIIissiml is to .f IIPP" " IIlId enhallce the 11fecfivl!nltSs Dfprfl5U liton in their efforts 

f(,I cre/,II!. saler l.'O",muniffts. 
143 


74504B2-2.eps

Fmther, it is common practice tor prosecutors to rcfiJsc to disclose the identity oftheir 

infbnnan!s as well as the identity and whereabouts of key witnesses who are likely to be 

executed by the accused or his criminal enterprise, Every effort is made hy prosecutors 

to comply with crimina! discovery yet ensure we legaJ protections our justice system 

affords. 

Therefore, in cases where witnesses may be intimidated by Mexican drug I,;~rtcls, where 

inilllmants may be compromised (thereby jeopardizing ongoing criminal investigations 

and prosecutions, as well as futw-e leads), and where releasing photographs and other 

sensitive infonnation may hinder prosecutors' ability to proceed in a cun-ent crimimu trial 

or be tillable to file flltllIe cases, it is logical to delay release of information until all of the 

related investigations are closed and related cases have been finally adjudicated.l Not 

only is it necessary, we have been provided the legal basis that it is indeed against the law 

to disclose core investigative materials, such as transcripts of grand jury proceedings and 

wiretap applications, from ongoing criminal investigations and prosecutions.2 As a 

former Calitbrnia prosecutor, I am fully aware that ethical prosecutors are prevented from 

publically releasing evidence pre-triaL This preclusion includes infonnation concerning 

confidential infOlmanls, photographs, and wiretaps. Prosecutors are only allowed [0 

release the name onile accused, th.c charges and the maximum penalty.3 They are 

forbidden to discuss the evidence or provide information which is not contained in the 

charging document or included in a public record. The discussion about the case, the 

investigation, and other criminal acts by the accused is only proper after verdict and 

sentencing. 

As pro~ccutors, we are accustomed to doing the public's business in the public. 

Prosecutors' omces throughout the country respond to requests for infonnation, hold 

press conferences, teSTifY betore grand juries dnd appc"-r before committees and 

commissions. It is important that those with oversight l'esponsibility arc illlly informed 

as to the basis for the actions ofthe public prosecutor's office. However, since 

"providing opcn investigative liles in response to a congressional subpoena could give 

rise to a claim, by defense counselor others, ofimproper congressional int1uencc over the 

criminal justice process ... ,,4 , we at the APA encourage congress to dclay fhosc aspects 

arits investigation thai necessitate disdosure o[trial-rdated documents Lmtil ali l'clated 

investigations and prosecutions have been finally adj udicated. 

1 See Letter" from James M. Cole, Deputy Attorney General~ to Darren E. Jssa, Chairman, Committee· on 

OVersight and Government ReConu (May 15,2(12), at 1 < 

'rd. ".I 5. 

3 As the Terry trial is Sf~t to GOlnmence in California, fed end prosecutors are bound to CalifornL:r's 

rull!s of ethic~. 28 CFR 77.3. C'io all criminal investigations and prosecutiuns ". attorneys for the 

government shaH conform their conduct ;md activities to the state rules and laws. ,governing 

8ttofneys in each State where such att-urney engages in that attorney's duties, to the same extent and 

ill the same manner as other attorneys in that State."] 4 Letter from Janet Reno, Attorney GeneraL to On';n Hatch, ChaimlOTI, Committee on the JudiciAry (May 

17.2(00). 

Our mission is to support and en/lance tile effectiveness of prosecutors in their efforts 

to create safer communities. 
144 

Mr. SMITH. The gentleman from Arizona Mr. Franks is recognized for questions. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Thank you, General. 


74504B2-3.eps
145 

Mr. Holder, on April 27, 2011, Members of this Committee asked 

you to give us information surrounding the decision by Justice to 

forego prosecution of the unindicted coconspirators in the Holy 

Land Foundation case. This is the largest terrorism finance case, 

of course, in U.S. history. You refused to comply with this request, 

and you still have not produced, or you are still not prosecuting despite there being what many consider to be a mountain of evidence 

against these Jihadist groups, at least one of which now says it is 

working inside your agency to help advise on the purge of 

counterterrorism training materials. 

We are told that this mountain of evidence which outlines the 

Jihadist network within the United States amounts to 80 bankers’ 

boxes full of documents. This evidence was turned over to the 

court, and much of it was given to the Jihadist defense lawyers. 

Members of this Committee and other Committees would like to 

review this evidence, whether it has to be on a classified basis or 

not. Would you commit today to give us and provide us with those 

documents which comprised the government’s case in the Holy 

Land Foundation trial? 

Attorney General HOLDER. It is hard for me to answer that question. I don’t know—— 

Mr. FRANKS. No, it is not to answer, it is just will you, or will 

you not. 

Attorney General HOLDER. I don’t know what the nature of the 

evidence is. I don’t know if it is grand jury material, I don’t know 

if it is wiretap information. There are a variety of things that I 

would have to look at. 

I can certainly take your request, and we can check to see what 

the nature of the evidence is and make a determination about 

whether it is appropriate for that material to be reviewed. I just 

don’t know. 

Mr. FRANKS. Well, we made the request on April 27 of last year, 

and so far it hasn’t happened. So I would like to make the request. 

And would you give us your best efforts basis that—your good-faith 

effort that you would give that information to us if you can do so? 

Attorney General HOLDER. I will certainly make a good-faith effort to look at the request that you have made and see whether or 

not it can be complied with. 

Mr. FRANKS. Well, I guess I would hope that you would also give 

us some explanation as to why the request has been ignored thus 

far. 

Let me shift gears on you here. It has been reported that multiple agencies, including the FBI, are now purging counterterrorism 

training materials of information outside groups might find offensive, including discussion of things as fundamental as that, quote, 

‘‘al Qaeda is a group that endorses violent ideology that should be 

examined,’’ unquote. That is one example. 

Per the new guidelines FBI agents may no longer discuss this in 

their training sessions because it offends some people, and it has 

been purged. And this strikes me as the sacrificing of vital national 

security, the muzzling of our national security apparatus on the 

altar of political correctness. And this concern, I think, General, 

seems warranted given that the bipartisan Senate report on the 

Fort Hood massacre, to quote them, ‘‘the worst terrorist attack on 

146 

U.S. soil since 9/11,’’ found that, quote, ‘‘political correctness inhibited officials from taking actions that could have stopped the attack.’’ 

Now, members of multiple Committees are now investigating. 

Has anyone inside your agency coordinated with any other Federal 

agencies such as DOD, DHS or the Department of State to carry 

out this review of counterterrorism training materials? 

Attorney General HOLDER. Well, let me say first off that the decisions that were made by the FBI with regard to what use would 

be made of certain materials is not based on political correctness 

or whether or not something is offensive. The search was for materials that were simply incorrect, that stated—had assertions about 

particular things that were simply wrong, and we didn’t think that 

was appropriate to be included in the training materials. 

Bob Mueller has taken this very seriously. But I can tell you, if 

anybody knows Bob Mueller, he is not making the determinations 

on the basis of what is either offensive or politically correct. That 

is not the driver in this attempt to make sure that our training materials are accurate. 

Mr. FRANKS. So has anyone inside your agency coordinated this 

effort such as it is, whatever it might be, with DOD, or DHS or the 

State Department? 

Attorney General HOLDER. Well, I am not sure that we necessarily have to. We obviously interact with our partners all the 

time in a variety of ways. The Deputy Attorney General issued 

some guiding principles to all DOJ component heads and U.S. Attorneys to make sure that these training materials were accurate. 

We interact with our partners all the time, and it is on that 

basis, among other things, that we have an ability to decide what 

materials are accurate. 

Mr. FRANKS. Well, it is one of two things. Either your position 

is that no one in your agency has spoken with or met with other 

agencies or the White House in carrying out this purge of vital 

counterterrorism materials, or they have. And if they have, who directed that these agencies in general to purge these materials? And 

what outside groups are advising the Department on the issue? 

Attorney General HOLDER. This is an internal process being done 

by members of the FBI, members of the Justice Department who 

are steeped in this—— 

Mr. FRANKS. Can you tell us what outside groups are advising 

you on this process? 

Attorney General HOLDER. This is something that is being run 

primarily out of the FBI. I mean, to the extent there are outsiders 

who are involved, who we are trying to interact with, perhaps we 

can try to get you those names. 

Mr. FRANKS. I will leave it right there. I just respectfully officially ask you to give us the list of who the outside groups are that 

are working with you on the process, because one of them is a 

Jihadist group that says they are working with you on it. And I 

just want to make that—— 

Attorney General HOLDER. I don’t believe that exactly. But I will 

relay the request to the FBI. 

Mr. FRANKS. All right. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Franks. 

147 

The gentleman from Illinois Mr. Quigley is recognized for questions. 

Mr. QUIGLEY. Thank you so much, Mr. Chairman. 

Sir, it is, as you know, very hard to minimize or diminish the 

tragedy that is Fast and Furious, a horribly ill-conceived program 

that led to the loss of life of an agent, endangered others. And as 

you agree, there must be a continued thorough, independent investigation. Justice must be done; corrections must be made, and I believe have been made. 

But with the greatest respect, I would say that I believe that the 

effort here has become politically motivated in an attempt to embarrass the Administration, and that diminishes the process. The 

operative phrase that comes to mind since ‘‘bad witness’’ has been 

used is ‘‘Pay no attention to the man behind the curtain.’’ 

Mr. Attorney General, welcome to Oz. Pay no attention to the 

fact that this process began under a previous Administration. Pay 

no attention that the agencies lack sufficient resources. Pay no attention that the head of the ATF hasn’t been allowed to be appointed. Pay no attention that the laws are inadequate to protect 

agents and citizens on both sides of the border; even more specifically that in Arizona any citizen may purchase an unlimited number of AK-47s and transfer them within the State in private sales; 

that Special Agent Peter Forcelli in the Phoenix Field Division testified at a pervious hearing that as it relates to straw purchasers 

and punishments, he used the expression, quote, ‘‘Some people 

view this as no more consequential than doing 65 in a 55.’’ 

And as it relates to the gun show loophole, we recognize the 

fact—and others would ask you to pay no attention—you can buy 

any type of gun you want without any background check. You could 

be adjudicated as dangerously mentally ill, you could be a felon, 

you could be on your third order of protection, you could be on a 

terrorist watch list, and you can buy what you want. 

In terms of resources, the Washington Post said in 2010 the ATF 

has the same number of agents it had in 1970, while the FBI has 

grown by 50 percent and DEA by 233 percent. I am glad those 

agencies got the growth they need because they make us safer, but 

ATF does as well. 

And finally, pay no attention to the fact that Special Agent Peter 

Forcelli of the ATF said, I have less than 100 agents assigned to 

the entire State of Arizona. That is 114,000 square miles. Do we 

have the resources? No, we don’t. End of quote: We desperately 

need them. 

So, Mr. Attorney General, life is unfortunately, even after tragedy, is about moving on. I ask you in a perfect world what other 

situations and resources that you and other agencies have to combat the threats that are still going on, the fact that people are still 

dying from gun violence in the border area? 

Attorney General HOLDER. Yeah, it is an issue that we have to 

confront. Recent studies have shown that of the 94,000 guns that 

were seized in Mexico, 64,000 of those guns can be traced back to 

the United States. 

I think there are a number of steps that Congress could take to 

help us in connection with this fight. We need a comprehensive 

firearms-trafficking statute. We need tougher sentences for straw 

148 

purchasers, so you don’t have that 65-, 55-mile-an-hour thought. 

We need to give ATF the resources that it needs. In fiscal year 

2011, Congress cut our request for 14 project gunrunner teams in 

half. It decreases our capacity to do these kinds of things. And I 

think that Congress should not attempt to block the long gun reporting requirement that has recently been upheld by a Federal 

court that would require somebody buying multiple AK-47s over a 

5-day period to have that information simply shared with the ATF. 

That is a valuable intelligence tool and has helped us while it has 

been in place in only four border States to develop leads and deal 

with the situations that you have described. 

Mr. QUIGLEY. If I might switch gears briefly, I come from Illinois, 

I come from Chicago. It is important to recognize the gentleman 

stepping down from the attorney general’s position in Chicago has 

left an extraordinary legacy. I want to commend his efforts, and I 

will give you the opportunity to do the same if you will. 

Attorney General HOLDER. I have known Pat Fitzgerald since he 

was a line lawyer in the Southern District of New York and working on really consequential and important terrorism cases. I admired his work then. He has been an outstanding U.S. Attorney in 

two Administrations. He is a true patriot. He has been a great U.S. 

Attorney. He has focused on public corruption matters as well as 

national security matters. He has, in fact, been a model U.S. Attorney and somebody who is going to be sorely missed by us in the 

Justice Department. 

Mr. QUIGLEY. Thank you, sir. 

I yield back. 

Mr. SMITH. Thank you, Mr. Quigley. 

The gentlelady from Texas Ms. Jackson Lee is recognized for a 

unanimous consent request. 

Ms. JACKSON LEE. Mr. Chairman, thank you for your courtesies. 

Unanimous consent to submit into the record a report of the minority staff of the Oversight and Government Reform dealing with 

Fast and Furious. I ask unanimous consent a statement on the 

draft contempt citation of the oversight committee, a letter regarding the purging of voters, and a letter regarding race-based juries. 

I ask unanimous consent to submit it into the record. 

Mr. ISSA. Reserving the right to object. 

Mr. SMITH. The gentleman reserves the right to object and can 

be heard on his objection. 

Mr. ISSA. I have no objections to the latter material, but in the 

case of the former material, I would ask unanimous consent that 

if we are going to enter one side of any document from another 

Committee if you want it into the record, that corresponding documents be allowed to be paired in so as to give a complete report. 

Mr. SMITH. Without objection, the documents mentioned by the 

gentlewoman—— 

Ms. JACKSON LEE. And I have no objection. 

Mr. SMITH [continuing]. From Texas will be made a part of the 

record, and the documents referred to by the gentleman from California will be made a part of the record. 

[The information referred to follows:] 

149 

Material submitted by the Honorable Sheila Jackson Lee 


74504C1-1.eps

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MI.-1oy SId, Commiuu on 0..., .. 1111" and ~tn""'n. Refo"" 

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Avallablo< Wld~r _ C,ul/ve eornmo,," A"rlb,,'lo ... Noncommord.llic.o...., 
150 


74504C1-2.eps

O~E HUNDnED nNElFfH CONGRESS 

(!ti':mgre~j) of tbe ItnUeb ~tat£i 

JflO!lli£ 01 itcllrfSentlltillell 

COMM!TfEE ON OVERSIGHT AND GOVERNt,1ENT REFORM 

2151 n""BUAN HOUSE Orner 8LOIUJI"IG 

January 30, 2012 

Dear Members of the Committee on Oversight and Government Reform: 

On December 15, 20ll), Brian Terry, an Agent in an elite Customs and Border Protection 

tactical unitr \vas ki.lled in a gunfight 18 miles from the Mexican border. Two AK-47 variant 

assault rifles found at the scene were traced back to purchases by one of the targP.ts of an 

investigation called Operation Fast and Furious being conducted by the Bureau of Alcohol, 

Tobacco, Firearms and Explosives (ATF). ""'hen he purchased these weapons, the target had 

already been identified as a suspected straw purchaser involved with a large network of firearms 

traffickers illegally smuggling guns to deadly Mexican drug cartels. Despite knowing about 

hundreds of similar purc.l,ases over a year-long period, ATF mterdicted only a small number of 

firearms and delayed making arrests. 

Last June, I pledged to Agent Terry's family that I would try to find out what led to this 

operation that allowed hundreds of firearms to be released mto communities on both sides of the 

border. Following the Committee's year-long mvestigation of this matter, I directed my staff to 

compile this report to provide some of those answers. I instructed them to focus on the facts we 

have discovered rather than the heated and sOn1_etimes inaccurate rhetoric that has characterized 

mud, of this investigation. 

As a resuit, this report lells the story of how misguided gunwalking operations originated 

i.n 2006 as AlF's Phoenix Field Division devised a strategy to forgo prosecutions against lowlevel straw purchasers while they attempted to build bigger charges against higher-Ievd carlel 

members. Unfortunately, this strategy failed to include sufficient operational controls to stop 

these dangerous weapons from getting into the hands of violent criminals, creating a danger to 

public safety on both sides of the border. 

The report describes how, rather than halting this operation after its flaws became evident, 

ATF's Phoenix Field Division launched severa! similarly reckless operations over the course of 

several years, also '''lith tragic results. Operation Fast and .Furious was the fourth in a series of 

operations in which gunwalking-the non-mterdiction of illegally purchased firearms that could 

and should be seized by law enforcement-occurred smce 2006. 

This report also details complaints by ATF lioe agents and senior officials m Washmgton, 

who told the Committee that these failures were aggravated and compounded by the Arizona 
151 


74504C1-3.eps

u.s. Attorney's Office, which tailed to aggressively prosecute firearms trafficking cases, and 

Federal courts in Arizona, which showed leniency toward the trafficking networks that fuel armed 

violence in Mexico. 

This report debunks many unsubstantiated conspiracy theories. Contrary to repeated 

claims by some, the COllullitiee has obtained no evidence that Operation Fast and Furious was 

a politically-motivated operation conceived and directed by high-level Obama Administration 

political appointees at the Department of Justice. The documents obtained and interviews 

conducted by the Committee indicate that it was the latest in a series of reckless and fatally 

flawed operations run by ATF's Phoenix Field Division during both the previous and current 

adrninistra nons. 

Although this report provides a great amount of detail about what we have learned to date, 

it has several shortcomings. Despite requests from me and others, the Committee never held a 

hearing or even conducted an interview with former Attorney General Michael Mukasey. The 

Committee obtained documents indicating that in 2007 he was personally informed about the 

failure of previous law enforcement operations involving the illegal smuggling of weapons into 

Mexico, and that he received a proposal to expand these operations. Since the Committee failed to 

speak with Mr. Mukasey, we do not have the benefit of his input about why these operations were 

allo'\.vcd to continue after he was given this information. 

The Committee also rejected my request to hold a public hearing with Kenneth Melson, the 

former Acting Director of ATF, the agency primarily responsible for these operations. Although 

Committee staff conducted an interview with Mr. Melson, the public has not had an opportunity 

to hear his explanations for why these operations continued for so many years without adequate 

oversight from ATF headquarters. 

As its title indicates, the Committee on OverSight and Government Reform has two 

primary lr.issions. Not only are we charged with conducting overSight of progra.ms to root out 

waste, fraud; and abuse, but we are also responsible for reforming these programs to ensure that 

government works more effectively and efficiently for the American people. For these reasons, 

tills report sets forth constructive recommendations intended to address specific problems 

identified during the course of this investigation. 

Above all, in offering this report and these recommendations, I recognize and commend the 

contributions of hundreds of thousands of law enforcement agents across our government who 

risk their lives on a daily basis in the pursuit of public safety and in defense of trug nation. 

SincerelY1 
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I. EXECUTIVE SUMMARy ................ " ............................................................ 1 

II. METHODOLOGY .............. "' ...... " ................................................................... 7 

III. BACKGROUND ............................... " ............................................................. 10 

IV. FINDINGS .......................................................................................................... 15 

A. ATF PHOENIX FIELD OPERATIONS INVOLVING 

"GUNWALKING" ................................................................................................ 15 

1. Operation Wide Receiver (2006-07) ......................................................... 15 

ATF-Phoenix monitored gun dealer selling to straw buyers ............................................. 16 

ATF-Phoenix .ought u.s. Attorney's approval to walk guns ........................................... 17 

ATF-Phoenix continued to walk guns after consulting with U.S. Attorney ....................... 19 

ATF agents unsuccessfully attempted to coordinate with Mexico ......... "".,. ................... 20 

ATF agent. expressed concern aboul gunwalking ............................ .,. ........................... 22 

Criminal Division took over prosecution and found gunwalking ............................ ,.. .... 23 

2. The Hernandez Case (2007) ......................................................................... 24 

ATF· Phoenix watched guns cross border without interdiction ........................................ 24 

ATF headquarters raised concerns about operational safeguards .................................... 25 

Attorney General Mukasey briefed and asked to "expand" operations ............................ 26 

3. The Medrano Case (2008) ............................................................................. 29 

ATF agents watched as firearms crossed the border ........................................................ 29 

ICE agents raised concerns ................................. " ..... , .. "' ......... , ...................................... 30 

Criminal complaint also confirms "gunwalking" ........................................................... 31 

4. Operation Fast and Furious (2009-10) ...................................................... 32 

Initiated by ATF-Phoenix in Ihe Fall of 2009 ........... " .................................................... 33 

Prosecutors claimed no probable cause to arresl s!raw buyers ........................................ 34 

Prosecutor encouraged U.S. Attorney to "hold out for bigget· case ................................. 36 

ATF-Phoenix sought funding and wiretaps to target higher-level suspects ...................... 38 

ATF-Phoenix agents watched guns walk ....................................................................... 39 

ATF Deputy Director Hoover ordered an "exit strategy" ................................................ .40 

ATF-Phoenix did not follow the 90-day exit strategy and continued the operation ............ 41 

Indictments delayed for months .................................................................................... 43 
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B. CHALLENGES SPECIFIC TO THE ARIZONA U.S. ATTORNEY'S 

OFFICE ................................................................................................................... 45 

"Viewed as an obslacle more !ban a help" .................................................................... .45 

Evidentiary thresholds in Arizona ............................................ m ............... ; ................. 46 

C. No EVIDENCE THAT SENIOR OFFICIALS AUTHORIZED OR 

CONDONED GUNWALKING IN FAST AND FURIOUS ......................... 49 

Attorney General Holder ................................................................ ................... w ........ 49 

Deputy Attorney General Grindler ............................................................................... 52 

Acting ATF Diredor Melson ........................................................................................ 53 

ATF Deputy Director Hoover .............. " ....................................................................... 55 

United States Attorney Burke ................................................... "' ................................. 56 

Criminal Division review of Fast and Furious wiretap applications ................................ 58 

Criminal Division response to Wide Receiver ............................................................... 60 

Criminal Division interactions with Mexican Officials ................................................... 63 

D. DEPARTMENT RESPONSES TO GUNWALKING IN OPERATION 

FAST AND FURIOUS .......................................................................................... 65 

Inaccurate information initially provided 10 Congress .............................................. <0< .. 65 

Request for IG investigation and reiteration of Department policy ................................. 68 

Personnel actillns ....................................................................... , ................................ 69 

Agency reforms ............................................................................................................ 70 

V. RECOMMENDATIONS ..................................................................... , ....... 71 
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74504C1-6.eps

On December 15, 2010, Customs and Border Protection Agent Brian Terry 

was killed in a gunfight in Arizona, and two AK-47 variant assault rifles fOlUl.d at 

the scene were traced back to purchases by one of the targets of an investigation 

called Operation Fast and Furious being conducted by the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives (ATF). The target already had been identified as 

a suspected straw purchaser involved with a large network of firearms traffickers 

smuggling guns to deadly Mexican drug cartels. 

At the request of the Committee·'s Ranking Member, Rep. Elijah E. Cummings, 

this report describes the results of the Committee's year-long investigation into the 

actions and circumstances that led to this operation. 

The report finds that gunwalking operations originated as early as 2006 

as agents in the Phoenix Field Division of ATF devised a strategy to forgo arrests 

against low-level straw purchasers while they attempted to build bigger cases 

against higher-level trafficking organizers and financiers. Rather than halting 

operations after flaws became evident, they launched several similarly reckless 

operations over the course of several years, also with tragic results. Each 

investigation involved various incarnations of the same activity: agents were 

contemporaneously aware of illegal firearTIls purchases, they did not typically 

interdict weapons or arrest straw purchasers, and firearms ended up in the hands of 

criminals on both sides of the border. 

Operation Wide Receiver (2006-2007) 

In 2006, ATF agents in Phoenix initiated Operation Wide Receiver with 

the cooperation of a local gun dealer. For months, ATF agents watched in realtime as traffickers purchased guns and drove them across the border into Mexico. 

According to William Newell, the Special Agent in Charge of the Phoenix Field 

Division, these suspects told the gun dealer that the "firearms are going to his boss 

in Tijuana, Mexico where some are given out as gifts." Although ATF officials 

believed they had sufficient evidence to arrest and charge these suspects, they 

instead continued surveillance to identify additional charges. As one agent said at 

the time, "we want it all." 

Paul Charlton, then the U.S. Attorney in Phoenix, was informed that 

firearms were "currently being released into the community," and he was asked 

for his position on allowing an "indeterminate number" of additional firearms to 

be "released into the community, and possibly into Mexico, without any further 

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ability by the U.S, Government to control their movement or future use," As his 

subordinate stated, "[t]his is obviously a call that needs to be made by you PauL" 

Over the next year, ATF agents in Phoenix went forward with plans to 

observe or facilitate hundreds of suspected straw firearm purchases, In 2007, a year 

after the investigation began, ATF initiated attempts to coordinate with Mexican 

officials, After numerous attempts at cross-border interdiction failed, however, the 

lead ATF case agent for Operation Wide Receiver concluded: "We have reached that 

stage where I am no longer comfortable allowing additional firearms to 'walk'," 

In late 2007, the operational phase of Operation Wide Receiver was 

terminated, and the case sat idle for two years, When a Justice Department 

prosecutor reviewed the file in 2009, she quickly recognized that "a lot of guns seem 

to have gone to Mexico" and "a lot of those guns 'walked'," The defendants were 

indicted in 2010 after trafficking more than 450 firearms, 

The Hernandez Case (2007) 

ATF agents in Phoenix attempted a second operation in 2007 after identifying 

Fidel Hernandez and several alleged co-conspirators who "purchased over two 

hundred firearms" and were "believed to be transporting them into Mexico," 

After being informed of several failed attempts at coordinating with Mexican 

authorities, William Hoover, then ATF's Assistant Director of Field Operations, 

temporarily halted operations, writing: 

I do not want any firearms to go South until further notioe, I expect 

a full briefing paper on my desk Tuesday morning from SAC Newell 

with every question answered, I will not allow this case to go forward 

until we have written documentation from the u.s. Attorney's Office 

re full and complete buy in, I do not want anyone briefed on this case 

until I approve the information, This includes anyone in Mexico, 

In response, Special Agent in Charge Newell wrote to another ATF official, 

''I'm so frustrated with this whole mess I'm shutting the case duwn and any further 

attempts to do something similar," Nevertheless, ATF operational plans show that 

additional controlled deliveries were planned for October and November of that 

year, 

In the midst of these operations, Attorney General Michael Mukasey received 

a briefing paper on November 16, 2007, in preparation for a meeting with the 

Mexican Attorney General. It stated that "ATF would like to expand the possibility 

of such joint investigations and controlled deliveries-since only then will it be 

possible to investigate an entire smuggling network, rather than arresting simply a 

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single smuggler." The briefing paper also warned, however, that "the first attempts 

at this controlled delivery have not been successful." Ten days later, ATF agents 

planned another operation in coordination with Mexico, again without success. 

Hernandez and his co-conspirators, who had purchased more than 200 

firearms, were arrested in Nogales, Arizona on November 27, 2007, while attempting 

to cross the border into Mexico. They were brought to trial in 2009, but acquitted 

after prosecutors were unable to obtain the cooperation of the Mexican law 

enforcement officials who had recovered the firearms. 

The Medrano Case (2008) 

In 2008, ATF agents in Phoenix began investigating a straw purchasing 

network led by Alejandro Medrano. Throughout 2008, ATF agents were aware that 

Medrano and his associates were making illegal firearms purchases from the same 

gun dealer who cooperated with ATF in Operation Wide Receiver. 

An ATF Operational Plan describes an instance on June 17, 2008, in which 

agents watched Medrano and an associate illegally purchase firearms and load 

them into a car bound for Mexico. According to the document, "Agents observed 

both subjects place the firearms in the backseat and trunk," and then "surveilled the 

vehicle to Douglas, AZ where it crossed into Mexico." 

Agents from U.s. Immigration and Customs Enforcement (ICE) balked 

when they learned about these tactics. After an interagency planning meeting in 

August 2008, the head of ICE's Arizona office wrote to ATF Special Agent in Charge 

Newell that, although ICE agents "left that meeting with the understanding Ihat 

any weapons that were fonowed to the border would be seized," ATF agents later 

informed them that "weapons would be allowed to go into Mexico for further 

surveillance by LEAs [law enforcement agents] there." 

On December 10, 2008, Federal prosecutors filed a criminal complaint 

that appears to confirm that ATF agents watched as Medrano and his associates 

smuggled firearms into Mexico. Describing the incident on June 17, 2008, for 

example, the complaint asserts that the suspects "both entered into Mexico with at 

least the six (6) .223 caliber rifles in the vehicle." Medrano and his associates were 

sentenced to multi-year prison terms after trafficking more than 100 firearms to a 

Mexican drug cartel. 

Operation Fast and Furious (2009-2010) 

Tn Operation Fast and Furious, ATF agents in Phoenix utilized gunwalking 

tactics that were similar to previous operations. In October 2009, ATF agents had 

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identified a sizable network of straw purchasers they believed were trafficking 

military-grade assault weapons to Mexican drug cartels. By December, they had 

identified more than 20 suspected straw purchasers who "had purchased in eXCESS 

of 650 firearms." 

Despite this evidence, the ATF agents and the lead prosecutor in the case 

believed they did not have probable cause to arrest any of the straw purchasers. As 

the lead prosecutor wrote: "We have reviewed the available evidence thus far and 

agree that we do not have any chargeable offenses against any of the players." 

In January 2010, ATF agents and the U.S. Attorney's Office agreed on a 

strategy to build a bigger case and to forgo taking down individual members of the 

straw purchaser network. The lead prosecutor presented this broader approach in 

a memo that was sent to U.S. Attorney Delmis Burke. The memo noted that "there 

may be pressure from ATF headquarters to immediately contact identifiable straw 

purchasers just to see if this develops any indictable cases and to stem the flow of 

guns." In the absence of probable cause, however, the U.S. Attorney agreed that 

they should "[h]old out for bigger." Over the next six months, agents tried to build a 

bigger case with wiretaps while making no arrests and few interdictions. 

After receiving a briefing on Operation Fast and Furious in March 2010, ATF 

Deputy Director Vvilliam Hoover became concerned about the number of firearms 

involved in the case. Although he told Committee staff that he was not aware of 

gunwalking, he ordered an "exit strategy" to take down the case and ready it for 

indictment within 90 days. ATF field agents chafed against this directive, however, 

and continued to facilitate suspect purchases for months in an effort to salvage the 

broader goal of the investigation. TI1e case was not indicted until Janualy 2011, ten 

months after Deputy Director Hoover directed that it be shut down. 

No evidence that senior officials authorized gunwalking in Fast and 

Furious 

The documents obtained and interviews conducted by the Committee reflect 

that Operation Fast and Furious was the latest in a series of fatally flawed operations 

run by ATF agents in Phoenix and the Arizona U.S. Attorney's Office. Far from a 

strategy that was directed and plalIDed by "the highest levels" of the Department 

of Justice, as some have alleged, the Committee has obtained no evidence 

that Operation Fast and Furious was conceived or directed by high-level political 

appointees at Department of Justice headquarters. 

ATF's former Acting Director, Kenneth Melson, and ATF's Deputy Director, 

William Hoover, told Committee staff that gunwalking violated agency doctrine, 

that they did not approve it, and that they were not aware that All agents in 

Phoenix were using the tactic in Operation Fast and Furious. They also stated that, 

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because they did not know about the use of gunwalking in Operation Fast and 

Furious, they never raised it up the chain of command to senior Justice Department 

officials. 

Apart from whether Mr. Hoover was aware of specific gunwalking allegations 

in Operation Fast and Furious, it remains unclear why he failed to inform Acting 

ATF Director Melson or senior Justice Department officials about his more general 

concerns about Operation Fast and Furious or his March 2010 directive for an "exit 

strategy." During his interview with Committee staff, Mr. Hoover took substantial 

personal responsibility for ATF's actions, stating: "J have to take responsibility for 

the mistakes that we made." 

Former Phoenix U.S. Attorney Dennis Burke told Committee staff that 

although he received multiple briefings on Operation Fast and Furious, he did not 

approve gun walking, was not aware it was being used, and did not inform officials 

in Washington about its use. He told Committee staff that, at the time he approved 

the proposal for a broader strategy targeting cartel leaders instead of straw 

purchasers, he had been informed that there was no probable cause to make any 

arrests and that he had been under the impression that ATF agents were working 

closely with Mexican officials to interdict weapons. Given the number of weapons 

involved in the operation, Mr. Burke stated that he "should have spent more time" 

focusing on the case. He stated: "it should not have been done the way it was done, 

and I want to take responsibility for that." 

Gary Grindler, the former Acting Deputy Attorney General, and Lanny 

Breuer, the Assistant Attorney General for the Criminal Division, both stated that 

neither ATF nor the U.S. Attorney's Office ever brought to their attention concerns 

about gunwalking in Operation Fast and Furious, and that, if they had been told, 

they "would have stopped it." 

When allegations of gunwalking three years earlier in Operation Wide 

Receiver were brought to the attention of Mr. Breuer in 2010, he immediately 

directed his deputy to share their concerns directly with ATF's leadership. He 

testified, however, that he regretted not raising these concerns directly with the 

Attorney General or Deputy Attorney General, stating, "if I had known then what I 

know now, I, of course, would have told the Deputy and the Attorney General." 

The Committee has obtained no evidence indicating that the Attorney General 

authorized gunwalking or that he was aware of such allegations before they became 

public. None of the 22 witnesses interviewed by the Committee claims to have 

spoken with the Attorney General about the specific tactics employed in Operation 

Fast and Furious prior to the public controversy. 

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Testifying before the Senate Judiciary Committee, the Attorney General 

stated: 

This operation was flawed in its concept and flawed in its execution, 

and unfortunately we will feel the effects for years to come as guns that 

were lost during this operation continue to show up at crime scenes 

both here and in Mexico. This should never have happened and it 

must never happen again. 

The strategy of forgoing immediate action in order to build a larger case is 

common in many law enforcement investigations, and the Committee has obtained 

no evidence to suggest that ATF agents or prosecutors in Arizona acted with 

anything but a sincere intent to stern illegal firearms trafficking. 

Nevertheless, based on the evidence before the Committee, it is dear that AlF 

agents in Phoenix and prosecutors in the Arizona U.S. Attorney's Office embarked 

on a deliberate strategy not to arrest suspected straw purchasers while they 

attempted to make larger cases against higher-level targets. Although these officials 

claimed they had no probable cause to arrest any straw purchasers at the time, 

allowing hundreds of illegally purchased military-grade assault weapons to fall into 

the hands of violent drug cartels over the course of five years created an obvious and 

inexcusable threat to public safety on both sides of the border. 

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Over the past year, the Committee has conducted an investigation into 

firearms trafficking investigations run by the Phoenix Field Division of the Bureau 

of Alcohol, Tobacco, Firearms and Explosives (ATF). This inquiry was originally 

brought to the Committee's attention by Senator Charles Grassley, the Ranking 

Member of the Senate Judiciary Committee, who had asked ATF to respond to 

allegations that agents had knowingly allowed the sale of firearms to suspected 

straw purchasers during Operation Fast and Furious. The Committee has been 

joined in its investigation by Majority and Minority staff of the Senate Judiciary 

Committee. 

To date, there have been nine congressional hearings relating to these topics, 

including three before this Committee. Attorney General Eric Holder has agreed 

to testify before the Committee on February 2,2011. He has testified previously on 

five other occasions regarding these issues, including before the Senate and House 

Judiciary Committees in November and December 2011, respectively. 

Committee staff have interviewed 22 witnesses from the ATF Phoenix Field 

Division, the U.S. Attorney's Office for the District of Arizona, ATF headquarters, 

and the Department of Justice. Committee staff have also interviewed multiple 

Federal firearms dealers. The Department has made numerous officials available 

for briefings, transcribed interviews, and hearings, including the former Deputy 

Attorney General, the Assistant Attorney General for the Criminal Division, the 

Deputy Assistant Attorney General for the Criminal Division, and the u.s. Attorney 

for the District of Arizona. The Department has also organized briefings during the 

course of the investigation, including with senior leaders from the Federal Bureau of 

Investigation (FBI) and Drug Enforcement Agency (DEA). 

In March 2011, the Committee sent letters to ATF and the Department of 

Justice requesting documents and communications. Committee Chairman Darrell 

lssa subsequently issued subpoenas for these documents in March and October 

2011, and he has issued numerous document requests to other agencies, including 

the FBI and DEA. 

The Committee has now obtained more than 12,000 pages of internal emails, 

reports, briefing papers, and other documents from various Federal agencies, 

whistleblowers, firearms dealers, and other parties. The Department of Justice has 

produced approximately 6,000 pages of documents to the Committee, including 

sensitive law enforcement materials related to the pending prosecution of the 

defendants in the underlying Fast and Furious case. 

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The Department has declined to produce some documents, induding "reports 

of investigation" and prosecutorial memoranda in the underlying cases. The 

Department has stated that providing these particular documents at this time could 

compromise the prosecution of 20 firearms trafficking defendants scheduled for trial 

in September. In addition, the Department has not provided documents related 

to its internal deliberations about responding to this congressional investigation, 

with the exception of documents and correspondence related to the drafting of 

the February 4, 2011, letter to Senator Grassley, which the Department formally 

withdrew on December 2, 2011. The Deputy Attorney General explained this policy 

in a letter to the Committee: 

The Department has a long-held view, shared by Administrations of 

both political parties, that congressional requests seeking information 

about the Executive Branch's deliberations in responding to 

congressional requests implicate significant confidentiality interests 

grounded in the separation of powers under the U,S. Constitution,l 

The letter stated that the Department made an exception to this policy 

and provided documents relating to the drafting of the February 4 letter because 

Congress had unique equities in understanding how inaccurate information had 

been relayed to it.2 

On November 4, 2011, Ranking Member Elijah Cummings requested a 

hearing with former Attorney General Michael Mukasey in light of documents 

obtained by the Committee indicating that the former Attorney General was briefed 

in 2007 on an unsuccessful coordinated delivery operation, as well as a proposal to 

expand such operations in the future. Ranking Member Cummings wrote: 

Given the significant questions raised by the disclosures in these 

documents, our Committee's investigation will not be viewed as 

credible, even-handed, or complete unless we hear directly from 

Attorney General Mukasey.3 

The Committee has not held a hearing with Mr. Mukasey; nor has it 

conducted an interview with him, depriving the Committee of important 

information directly relevant to the origin of these operations. 

In addition, on October 28, 2011, Ranking Member Cummings requested a 

public hearing with Kenneth Melson, the former Acting Director of ATF. He wrote: 

Since the Attorney General has now agreed to appear before Congress 

in December, I believe Members also deserve an opportunity to 

question Mr. !v!elson directly, especially since he headed the agency 

responsible for Operation Fast and Furious" 

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74504C1-14.eps

To date, the Committee has declined to hold this hearing. 

In June 201 1, Ranking Member Cummings issued a report entitled 

"Outgunned: Law Enfon::emenl Agents Warn Congress They Lack Adequate Tools 

10 Counter Illegal Firearms Trafficking.'" He also hosted a Minority Forum of 

experts regarding the larger problem of firearms trafficking and the lack of Jaw 

cnforcement to()is 10 stcm this tide.' 

OUTGUNNED 

1.iIl'" ~:nr"I'!'Ii"'c"t Agrlllll W,,1'1I eo"SI'Mll1'hey ~k 

.~df'<JlI~t~ 'I'"ob; to rA)lwtrr 111<'11"1 Fin'at'''. Trnrrirki"ll 

....... " • • • 11 

~rt"""r"..tr I..,.,.. ~( .. I""kl"CM"'''''!~il'''' IoLO ..... ..,. ~'"' .. ''''' on o.....;_bt ..... o.r...u .... t IW ... j ...... 1!I1II 

11I1L!.'l.,.,'""bl'"I!'J,'.hLNaIll:#Sl/i 

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Ill. BACKGROUND 

Over the pilst five years, the Mexican government has been locked in a battle 

with drug trafficking orgilnililtion~ seeking control of lucrative trafficking roulesthat carry billions of dollars in narootics destined for the United States. This battle is 

fueled in pari by the tem 01 thousands of military-grade weapons that cross the u.s. 

border into Mexico every year. In particular, law enforcement officials have ft.'ported 

that the "weapons of choiet''' for international drug cartels are semi-automatic 

rifles and olher assault weapons. These weapons are fll'lJuently purchased in the 

United State~ beC.lUSC they are generally illegal to purchilse or JlOSSl'SII in Mexico.' 

According to the latest statistics from the Mexican Attorney General's office, 47,515 

people have been killed In drug-related violence since 2006.

1 

On November 1, 2011, Assistant Attorney General Lanny Breuer testified 

before the Senate Judiciary Committee that the vast majority of guns recovered in 

Mexico were imported illegally from the United States: 

From my understanding. 94,000 weapons have been recovered in the 

last five years in Mexico. Those are just the ones rerovered, Senator, 

not the ones thai are in Mexico. Of the 94,000 weapons that have been 

recovered in Mexico, 64,000 of those are trared to the United States.~ 

These statistics ar'" consistent with reports from the Mexican government. 

In May 2010, Mexican President Felipe Calderon Slated before a joint session of 

NUMBER OF FIREARMS SEIZEO IN MEXICO ANO 

TRACEO BACK TO THE UNITEO STATES, 200' ·2010 

-

... ... _ .-,,... _ ~ .. -.. .. ... , -..... __ .. r-.. .. _-.-,- . _._.-"_ ........ -... ,, 

.... w",,. -..... ... .,-~ ~--._, .... ....., .... . -, _..- .... -.. ....... -" ... ... ". <1,.

'

_ -.-... _--...

_ ._, ..... " 

-_.-... ,--, .-..... -~ ........ -.--

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Congress that, of the 75,000 guns and assault weapons recovered in Mexico over the 

past three years, more than 80% were traced back to the United States.'o 

ATF is the primary U.s. law enforcement agency charged with combating 

firearms trafficking from the United States to Mexico. ATF enforces Federal firearms 

laws and regulates the sale of guns by the firearms industry under the Gun Control. 

Act of 1968.11 ATF reports to the Attorney General through the Office of the Deputy 

Attorney General.12 ATF is organized into 25 field Divisions led by Special Agents 

in Charge who are responsible for multiple offices within their jurisdiction." In 

Phoenix, the Special Agent in Charge is currently responsible for offices in Phoenix, 

Flagstaff, Tucson, and Yuma, Arizona, as well as Albuquerque, Las Cruces, and 

Roswell, New Mexico.'· 

The U.S. Attorney for the District of Arizona is the chief Federal law 

enforoement officer in the State of Arizona. The District of Arizona has 

approximately 170 Assistant United States Attorneys and approximately 140 support 

staff members split equally between offices in Phoenix and Tucson.'s As part of its 

responsibilities, the u.s Attorney's Office has primary responsibility for prosecuting 

criminal cases against individuals who violate Federal firearms trafficking laws in its 

region.'· -

Attorneys from the Department's Criminal Division in Washington, D.C. 

serve as legal experts on firearms-related issues and assist in prosecuting some 

firearms trafficking cases.'7 hl addition to developing and implementing strategies 

to attack firearms trafficking nehvorks, Criminal Division attorneys occaSionally 

assist the u.s. Attorneys' offices in prosecuting firt:arms trafficking cases.'8 

In 2006, ATF implemented a nationwide program called Project Gunrunner 

to attack the problem of gun trafficking to Mexico.'• Project Gunrunner is part of 

the Department's broader Southwest Border Initiative, which seeks to reduce crossborder drug and rnearnls trafficking and the high level of violence associated with 

these activities on both sides of the border.20 

In June 2007, ATF published a strategy document outlining the four key 

components to Project Gunrunner: the expansion of gun tracing in Mexico, 

international coordination, domestic activities, and intelligence. In implementing 

Project Gunrunner, ATF has focused resources on the four Southwest Border States. 

Additionally, Attorney General Holder has testified that, since his confirmation in 

2009, the Department of Justice has made combating firearms trafficking to Mexico a 

top priority.21 

In November 2010, the Department of Justice Inspector General issued a 

report examining the effectiveness of Project Gunrunner in stopping the illicit 

trafficking of guns from the United States to Mexico. The Inspector General found 

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that "ATF's focus rerruills largely on inspections of gun dealers and investigations of 

straw putchasera Tath.:!T than on higher-level traffickers, smugglers, and the ultimate 

recipient'! of the trafficked guns." The report rC«lmmendt.>d that ATF "[flocus on 

developing mOTe complex conspiracy cases against higher level gun traffickers and 

gun trafficking conspirators." The. repor! also found that U.S. Attorneys' offin'$ 

often dcclint.'Ci Project Gunrunner cases because fin'aJ'Il'IS invt'5tigiltions are often 

diffic:ult to prosecute and n'5ult in lower penalties.» 

Typical firearms trafficking callieS involve a "straw pun::hasc~ in which the 

actual buyer of a firearm uses anoth(>r person, "the str~w purchaser," to exc<:ule the 

paperwork necessary to purchase Inc (irearm from a gun dealerP The actual buyer 

typically i.5 someone who is prohibited from buying a firearm and cannot pass the 

background d1«k or who does not want a paper Irail documenting thfo purch~. 

Gun trafficking organizations regularly use straw purchascrs who deliver firtoarms 

to mlermediat1es before other mcmbc:Ts of the organi1..ations transfer the guns across 

the border.1< 

There i~ no Federal statute specifically prohibiting firearms trafficking or 

straw purchascs. !f\~tead, ATF agents and Federal prosec:-utors uS(' other criminil! 

statutes, induding: (1) 18 USC § 924(a)(I)(A) which proh.ibits knowingly making a 

false statemO;!)1\ Qt\ ATF Form 447); (2) 18 USC § 922(a)(6) which prohibits knowingly 

making it {alse statement in connection with it firearm purchase; (3) 18 USC § 

922(g)(1) which prohibits possession of a firearm by a convicted IdOl\; and (4) 

18 USC § 922(a)(I)(A) which prohibits engaging in a firearms business without a 

lirense.8 

CU T WeAPONS 01" CHOICE 

-..., .. - ~---",. __ --­ c..,.'a, .. -__ 

... u,_ ...... _m_ ---.~.- --iQ- --,-- 00111 __ 

.... ..--,_ .. -.-. .... .!!....-.~ ---- c.o~~I11","" ..... _ 

...... 

_ .... 

-' .. 2.~ __ 

_""' ............. Z2l .... 

~----"".-

------ -

001 .• ---_ .... _ - " - -,---::::-----,-

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Key ATF Personnel 

During Operatiofl FBst 800 Furious (2009-2010) 

HQ Kenneth Melson 

Acting Director 

William Hoover 

Deputy Director 

Ma rk Chait O FFl(f Of Snt.o.n:GIC Assistant Director NT(WGEHc~ AND for Field Operations II\IFOfI:M4TIOI'I/05I1I 

William McMahon 

Deputy Assistant Director Chielo! for Field Operations International Affairs 

Pho;~i~ - - - T ----- TMe~k:O -----

William Newell , 

, Special Agent in Charge , Attadl~ to , Mexico , 

, 

Assistant Special 

L ___ ______ ___ ___ 

-. ABents in Charge 

l Group Supervisor J 

Group VII 

I Sped,l ABen! I I SpK~1 Asent I I Special ",ent I I Sped~1 Agent I 

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Key DO~ Personnel 

Dun"ng Operation Fast and Furious (2009-2010) 

Eric Holder 

Attorney General 

I 

Gary Grindler 

Deputy Attorney General 

ATF 93 U.S. CRIMINAL 

AnORNEYS' OFFICES DIVISION 

Dennis Burke lanny Breuer 

DEA u .s. Attorney, Assistant Attorney 

District of Arizona General 

Patrick Jason Weinstein 

FBI CUnningham Deputy Assistant 

Criminal Chief Atto~ney General 

I Section Heads I Section Chiefs I 

I line Attorneys I line Attorneys I 

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Iv. FINDINGS 

A. ATF PHOENIX FIELD OPERATIONS 

INVOLVING IIGUNWALKING" 

Documents obtained by the Committee and transcribed interviews conducted. 

by CommittL'C staff have identified II series of gun walking operations conducted 

by ATF's Phoenix Field Division. Beginning in 2006, each of theSE! investigations 

involved various tnc;nnations ollhe ~me activity: ATF-Phoenix agents were 

contemporaneously aware of su~pc."Cted ilIegallireanns purdl~s, they did not 

typically interdict the weapons or arrest ihc straw purchasers. and those firearms 

ended up in the hands of criminals 01\ both sides of the border. 

2005-07 2007 2008 2009-10 

1. Operation Wide Receiver (2006-07) 

Operation Wide Receiver began in early 2006 when ATF agents in Tucson 

opened IlJ1 inYCIIligation of ill suspected slfilW purchaser after receiving infutmalion 

from a coopera ling gun dealer. Documents indicate that agents worked dosely with 

this dealer, including by contemporaneously monitoring firearms sales to known 

straw purc:hilSers Without ilrrests or interdiction, and tlut they sought auJhorization 

for the expansion of this operation fTom then-US. Attomcy lOT the District of 

Arizona, Paul Charlton. 

The evidence also ind;('ates that, between March 2006 M'ld mid-200'l, ATF 

agent.!; had c:ontcmpora=ous knowl~dg(' of planned saJes of fueartlU to known 

straw purchasers and repeatedly designed SUJ'V'cillanc:e operations of thell(' iIIcgal 

firean11.§ putchase5 without effectuating ilJ1"eSts. According to dOCUJnents obtained 

by the Committee, agents avoided interdicting weapons despite having the l('g31 

authority 10 do80 in order to build a bigger use. Despite repeated failed attempts 

to coordinate surveillance with Mexkan law enforcement, the ATF agents continued 

to attempt these o(><,rations. . 

.,5-
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74504C1-21.eps

Although the operational phase of the investigation ended in 2007, the case 

was not prosecuted for more than two years, during which time no arrests were 

made and the known straw purchasers remained at large. A prosecutor from the 

Criminal Division of the Department of Justice who was assigned to Operation Wide 

Receiver in 2009 and reviewed the case file raised concerns that many guns had 

"walked" to Mexico. 

ATF-Phoenix monitored gun dealer seHing to straw buyers 

In March 2006, ATF-Phoenix agents received a tip from a Federal Firearms 

Licensee (FFL) in Tucson, Arizona, that a suspected straw purchaser had purchased 

six AR-15 lower receivers and placed an order for 20 additional lower receivers.2G 

The agents opened an investigation of the purchaser because the nature of the 

transaction suggested a possible connection to illegal firearms trafficking." 

Some military-style firearms consist of an upper and lower receiver, with the 

lower receiver housing the trigger mechanism, and the upper receiver induding 

the barrel of the firearm. According to a memorandum from the U.S. Attorney's 

Office, ATF had information that the suspects were obtaining both receivers and 

assembling them to create illegal firearms." The firearms were illegal because the 

barrels were 10.5 inches in length, and rifles with barrels shorter than 16 inches must 

be registered and licensed with ATF. 29 

According to summaries prepared subsequently by a Department of Justice 

attorney prosecuting the case, "The FFL agreed to work with ATF to target the 

persons who were interested in purchasing large quantities of lower receivers 

for AR-15s." Specifically, "The FFL agreed to consensual recordings both of the 

purchases and phone calls."'" Soon thereafter, ATF-Phoenix briefed prosecutors 

in the Arizona U.s. Attorney's Office that several suspicious individuals were 

purchasing "large quantities of lower receivers" from a Tucson FFL.31 

In a June 22, 2006, memorandum, the Special Agent in Charge of ATF-Phoenix 

explained that the three suspects in the case had purchased a total of 126 AR-15 

lower receivers. According to the memo, one of the suspected straw purchasers 

"advised the CS [confidential source 1 that he takes the firearms to a machine shop 

at or near Phoenix, AZ and they are converted into machine guns." The ATF agents 

also suspected that these firearms were making their way to Mexico and into the 

hands of a dangerous drug cartel. Specifically, the Special Agent in Charge wrote 

that, "ATF just recently tracked the vehicle to Tijuana, Mexico,"and one suspected 

straw purchaser "stated that these straw purchased firearms are going to his boss in 

Tijuana, Mexico where some are given out as gifts."32 

ATP agents learned that the suspected straw purchasers were seeking a new 

supplier of upper receivers: 

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The purchasers have asked the FFL to provide the uppers to them as 

well, indicating that they are not pleased with their current source 

for the uppers. The FFL has expressed reluctance to the purchasers 

regarding selling them both the lowers and the 10.5 inch uppers, as 

that would look very suspicious as if he was actually providing them 

with an illegal firearm. The purchasers are well aware that it is illegal 

to place a 10.5 inch upper on the lowers they are purchasing from the 

FFL The FFL has indicated that he could try to find another 3rd party 

source of uppers for the purchasers.33 

According to legal research proVided by ATF counsel to attorneys in the U.s. 

Attorney's Office, it is illegal to possess both the upper and lower receivers, even if 

they are not assembled: "The possessor does not have to assemble the lower and the 

upper so long as the firearm is in actual or constructive possession of the offender, 

and can be 'readily restored' to fire.""" 

Despite evidence that the suspects illegally possessed both upper and lower 

receivers, were assembling them, and were transporting them to Mexico, ATF 

did not arrest the suspects. On March 31, 2006, the Resident Agent in Charge of 

the Tucson office-a local office that reports to the Special Agent in Charge of the 

Phoenix Field Division-wrote an email explaining that they had enough evidence 

to arrest the suspects, but that they were waiting to build a bigger case. He wrote: 

We have two AUSA assigned to this matter, and the USAO @ Tucson 

is prepared to issue Search and Arrest Warrants. We already have 

enough for the 371 and 922 a6 charges, but we want the Title n 

manufacturing and distribution pieces also-we want it all." 

ATF-Phoenix sought U.S. Attorney's approval to walk guns 

The evidence indicates that, rather than arrest the straw buyers, the ATF 

Phoenix Field Division sought the approval of the U.S. Attorney's Office to let the 

guns walk in June 2006. The prosecutors handling the case wrote a memorandum to 

Paul Chariton, U.s. Attorney for the District of Arizona, which outlined the request. 

They wrote: 

ATF is interested in introducing a CI [confidential informant] to act 

as this source of uppers. This would further the investigation in that 

it would provide more solid evidence that the purchasers are in fact 

placing iHegallength uppers on the lowers that they are purchasing 

from the currently-involved FFL. It may also lead to discovery of more 

information as to the ultimate delivery location of these firearms and! 

or the actual purchaser.36 

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74504C1-23.eps

ATF-Phoenix and the Arizona U.S. Attorney's Office both understood that 

ATF was already letting firearms walk by working with a cooperating FFL to provide 

"lower receivers" to straw purchasers trafficking them to Mexico. According to the 

prosecutors' memorandum to U.S. Attorney Charlton: 

[The ATF Agent] pointed out that these same exact firearms are 

currently being released into the community, the only difference being 

that at this time ATF is only involved in providing the lower receiver. 

We know that an illegal upper is being obtained from a third party, but 

the government is not currently involved in that aspect.37 

The memo to u.s. Attorney Charlton then relayed ATF-Phoenix's request: 

The question was posed by RAC [Resident Agent in Charge 1 Higman 

as to the U.S. Attorney's Office's position on the possibility of allowing 

an indeterminate number of illegal weapons, both components of 

which (the upper and the lower) were provided to the criminals 

with ATF's knowledge and/or participation, to be released into the 

community, and possibly into Mexico, without any further ability by 

the U.S. Government to control their movement or future use. 

The memo further stated that the proposed tactics were controversial and 

opposed by ATF's legal counsel: 

[The ATF agent] indicated that ATF's legal counsel is opposed to 

this proposed method of furthering the investigation, citing moral 

objections. Recognizing that it will eventually be this office that will 

prosecute the individuals ultimately identified by this operation, 

RAC Higman has requested that we ascertain the U.S. Attorney's 

Office's position with regard to this proposed method of furthering the 

investigation.38 

"\Then the Chief of the Criminal Division in the U.S. Attorney's Office sent the 

prosecutor's memo to U.s. Attorney Charlton, she accompanied it with an email in 

which she stated that it "does a very good job outlining the investigation and the 

potential concerns. This is obviously a call that needs to be made by you Paul."39 

U.s. Attorney Charlton responded the next day: "Thanks-I'm meeting with the 

ATF SAC [Special Agent in Charge William Newell] on Tuesday and I'll discuss it 

with him then."4tl 

Although the Committee has obtained no document memorializing the 

subsequent conversation between U.s. Attorney Charlton and the Special Agent 

in Charge, documents obtained by the Committee indicate that ATF-Phoenix went 

forward with their plans to observe or facilitate hundreds of firearms purchases by 

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172 


74504C1-24.eps

the su~pected straw purchase rs without arrests. Committl.'e staff did nOI conduct a 

transcribed interview of Mr. Charlton. 

Memorandum 

United States Attorney's Oflicc 

D~1TiL't or Arizona 

ro, ..... , tI. CU.,I ... U.tl«l 5,., ..... tto~ T..,.IIo. JlI"ri<1 "r ... _ • 

....... , J ... IA • .). 101.1« •• "" ..... tslol •• l u.s. A" .... ~ 

n .. ", P. r ........... Moh .. 01 u.s. Ad ..... ,. 

hl>j ... , 0''''110. W1d.RonI~ ••• P"1<l' Qaoolitl. 

11.,. J"'tI1.1_ 

ATF-Phoenix continued to walk guns after consulting with U.S. 

Attorney 

In CX:lober 2006, ATF agents planned a survciUancc operation to observe 

a suspect purchase AR·15 lower receivers and two AR-15 rifles, determine if the 

suspect was going to make additional purchases, and identify any of his associates." 

The Operational Plan noted: 

It is suspected that [the suspect] will now be moving the firearms to 

Tijuana himself. We are not prepared to make any arrests at this time 

becau.se we are still attempting to coordinate our efforts with AFT 

[Agencia Federal de Investigacion) in Mexico .... If it is determined 

that (the suspect) has spoiled the surveillance unit, surveillance will be 

stopped immcdiatc1y."l 

Doc:ument!; indicate that ATF agents observed the suspect purchase five 

AR·15 lower receivers 3nd terminated surveillance after three hours ..... Notes taken 

after the investigation explained that the surveillance included audio recordings of 

the susfX'c! stating that he "is now personally Ifan~porting the firearms to Tijuana, 

Mexico himself.H" 

On December 5, 2006, Special Agent in Chatge Newell wrote that another key 

suspect in the Wide Receiver investigation had recently Hpurchase<l a total of ten (to) 

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74504C1-25.eps

AR-15 type lower receivers on two separate purchases , ".5 He also wrote that, during 

those transactions, the suspect told the confidential source that he was taking the 

firearms to Mexico and would soon be ordering an additional 50 lower receivers,'6 

Special Agent in Charge Newell wrote that the Tucson field office was planning to 

secure the cooperation of Mexican authorities: 

The Tucson n Field Office has maintained contact with the ATF Mexico 

City Country Office in an effort to secure the cooperation and join 

investigation with the Agenda Federal de Investigaci6n (Mexico), 

Three Tucson n Field Office SA have obtained official U.S, Government 

passports in anticipation of a coordination meeting with the AFT early 

during calendar year 2007,47 

On February 23, 2007, ATF agents planned to conduct a traffic stop of one 

suspected straw purchaser "with the assistance of the Tucson Police Department."" 

Although the Operational Plan indicated that "[p]robable cause exists to arrest [the 

suspect]," the agents' goa! was to lawfully detain him at the traffic stop and bring 

him to the ATF office for questioning'9 According to a memorandum from Special 

Agent in Charge Newell, between February 7 and April 23, 2007, the suspect and 

co-conspirators together purchased and ordered 150 firearms, including AK-47 and 

AR-15 rifles and pistols,50 Although ATF apparently had probable cause for arrest, 

on February 27, 2007, the subject was interviewed by ATF agents and released.51 The 

documents do not indicate why he was not arrested and prosecuted at that time, 

ATF agents unsuccessfully attempted to coordinate with Mexico 

The documents indicate that, although ATF had sufficient evidence to arrest 

the suspected straw purchasers, the agents continued to press forward with plans 

to attempt coordinated surveillance operations with Mexico, In April 2007, the 

ATF agents in charge of Operation Wide Receiver were unsure whether they could 

successfully coordinate surveillance with their Mexican counterparts, On April 10, 

2007, the case agent for Wide Receiver wrote to a Tucson Police Department (TPD) 

officer: 

Assuming that the MCO [ATF's Mexico Country Office] can coordinate 

with the Mexican authorities, we anticipate that Tucson VCIT will 

hand off his surveillance operation at the U,S, I Mexican border. 

No ATF SA or local officers working at our direction will travel 

into Mexico, Through MCO we have requested that the Mexican 

authorities pick up the surveillance at the border and work to identify 

persons, telephone numbers, "stash" locations and source(s) of money 

supply in furtherance of this conspiracy,52 

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According to an ATF Operational Plan, just one day later, ATF agents and 

Tucson Police officers conducted surveillance and recorded the "planned arrival 

or [the suspect] and other persons at the FFL."53 The Operational Plan stated 

that U.s. law enforcement would watch the "firearms cross international lines 

and enter Mexico .... If the Mexican authorities decline or fail to participate in 

this operation the firearms traffickers will be arrested prior to leaving the United 

States."·54 Although the agents obtained an electronic record of the sale and initiated 

surveillanoe, the plan failed according to a summary prepared by one agent: 

ATF agents in conjunction with TPD VerT Task Foroe Officers 

conducted a surveillance of suspected firearms traffickers in 

furtherance of this investigation. Suspects purchased 2U+ firearms 

which totaled over $35,000.00 in retail cost. The surveillance 

successfully obtained electronic evidence of the transaction, further 

identified the traffickers and additional suspect vehicles. The 

traffickers were followed to a neighborhood on the Southside of 

Tucson and then later lost. The suspects are planning on making a 

purchase of 20-50 M4 rifles and are negotiating this next deal. The 

investigation continues." 

Despite the surveillance of the straw purchase and other evidence collected 

during the April 11, 2007, operation, the suspects were not arrested even after they 

were later located. Instead, more operations were planned. 

An April 23, 2007, memo from Special Agent in Charge Newell to the Chief 

of Special Operations requesting additional funding for Operation Wide Receiver 

documented the failure to coordinate surveillance with Mexican law enforcement 

and public safety risks associated with continuing on that course: 

To date, the Tucson II Field Office and TPD SID have been lllable 

to surveil the firearms to the International border. From contact 

with those offices, the Mexican Federal law enforcement authorities 

understand that the surveillance is difficult and that several firearms 

willlikdy make it to Mexico prior to a US. law enforcement successful 

surveillance of firearms to the international border." 

Two weeks later, on May 7, 2007, ATF agents and Tucson Police conducted 

surveillance of another "planned arrival" of a suspected straw purchaser and his 

associates at an FFL57 The Operational Plan shows that ATF agents had advance 

notice that the suspect had contacted the FFL to arrange the purchase of more than 

20 firearms, plarmed to purchase the firearms from the FFL later in the day, and 

had made arrangements for a vehicle to transport the weapons into Mexico that 

night.5s The Operational Plan indicated that "lilf the Mexican authorities decline 

or fail to participate, the firearms traffickers will be arrested prior to leaving the 

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74504C1-27.eps

United States."" ATF agents contacted Mexican law enforcement in advance of the 

operation and they agreed to assist with surveillance of the suspects if they entered 

Mexico.60 According to a subsequent summary of these events: 

[The suspects] were scheduled to purchase the ordered firearms. 

[Redacted] cancelled at the last minute, but [the suspect] purchased 15 

firearms and was surveilled to his residence at [redacted]. Surveillance 

was discontinued the following day due to neighbors becoming 

suspicious of surveillance vehides.,··6J 

The suspects were not arrested, the firearms were not interdicted, and the 

investigation continued in anticipation of the suspects' next major purchase .. 

ATF agents expressed concern about gunwalking 

Agents in ATF's Phoenix Field Division began to express concern that 

Operation Wide Receiver was not yielding the desired results. In a June 7, 2007, 

email, one special agent on the case wrote to his supervisor: 

We have invested a large amount of resources in trying to get the load 

car followed to Mexico and turning it over to PGR [Mexican federal 

prosecutors] and are preparing to expend even more. We already have 

numerous charges up here and actually taking in to Mexico doesn't 

add to our case specifically at that point. We want the money people 

in Mexico that are orchestrating this operation for indictment but 

obviously we may never actually get our hands on them for trial, so 

the real beneficiary is to PGR.62 

Despite the agent's concerns, Operation Wide Receiver remained on the 

same course with another "planned arriva1" attempted on June 26, 2007.63 lhe 

Operational Plan indicated that ATF agents had advance notice that the suspect 

had been in contact ,vith the FFL, that the suspect was "extremely anxious" to 

purchase more firearms, and that firearms are to be purchased and then continue to 

"unknown locations throughout Tucson and Southern Arizona."&! Document~ show 

that ATF agents and Tucson police were unable to follow the firearms to the Mexican 

border.65 

In an email sent on June 26, 2007, as the surveillance operation was set to 

begin, the ATF case agent for Operation Wide Receiver expressed reluctance about 

the repeated failures to coordinate surveillance of firearms traffickers with Mexican 

lawenforcement.66 He wrote to a prosecutor at the Texas U.s. Attorney's Office: 

We anticipate surveillance this evening where the subject(s) of interest 

are scheduled to purchase approx. $20K of associated firearms for 

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74504C1-28.eps

further shipment to Caborca, Mx, and we are coordinating with the 

Mexican authorities in the event that the surveillance is successful. We 

have reached that stage where I am no longer comfortable allowing 

additional firearms to 'walk,' without a more defined purpose.67 

Criminal Division took over prosecution and found gunwalking 

In late 2007, the operational phase of Operation Wide Receiver was 

terminated, and the case was passed to the U.S. Attorney's Office for prosecution. 

The case then sat idle for nearly two years without indictments or arrests. The 

first prosecutor assigned to the case became a magistrate judge, and the second 

prosecutor did not open the case file for more than six months." 

In 2009, the Department of Justice's Criminal Division in Washington, D.C. 

offered to assign prosecutors to support firearms trafficking cases ill any of the five 

border-U.S. Attorneys' offices." The U.S. Attorney's Office in Arizona accepted the 

offer and asked for assistance with the prosecution of targets in Operation Wide 

Receiver.70 In September 2009, the Criminal Division assigned an experienced 

prosecutor to take over the case.71 

After reviewing the investigative files from 2006 and 2007, the Criminal 

Division prosecutor quickly realized that there were serious questions about how 

the case had been handled. On September 23,2009, she wrote an email to her 

supervisors giving a synopsis of the case and its problems: "In short it appears that 

the biggest problem with the case is its [sic] old should have been taken down last 

year AND a lot of guns seem to have gone to Mexico."72 

As she prepared the case for indictment, she continued to update her 

supervisors as new details emerged from the case file. On March 16, 2010, she sent 

an email to her supervisor: 

It is my understanding that a lot of those guns "walked." Whether 

some or all of that was intentional is not known. The AUSA seemed 

to think ATF screwed up by not having a mechanism in place to seize 

weapons once they crossed the border.73 

The prosecutor also found evidence that guns involved in Operation Wide 

Receiver were connected to crime scenes in Mexico. She wrote that "13 of the 

purchased firearms have been recovered in Mexico in connection with crime scenes, 

induding the April 2008 Tijuana gun battle" and that "[t]wo potential defendants 

were recently murdered in Mexico."74 

The Criminal Division proceeded with prosecutions relating to the 

investigation. In May 2010, one suspect pleaded guilty to forfeiture charges pre-

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74504C1-29.eps

indictment while two additional co-cono;pirators wo:!re indicted in ft.>deral court." On 

October27, 2010, seven additional suspects were indicted in the District of Arizona 

on gun-lu.fficking related charges." 

2006-01 l007 2008 2009-10 

2. The Hernandez Case (2007) 

Acoording to dDOlments obtained by th(' Committee, agents in the ATF 

Phoenix Field Division unsuca!SSfully atiempled II second operation in tM summer 

of 2007 after identifying Fidel Hernandez and seve-ral alleged «MXmSpirators as 

suspected straw purchasers seeking 10 smuggle firearms into Mexico. Despite failed 

attempts 10 coordinatc with Mexican authorities, A'fF agents sought approval from 

the U.S. Attorney's Office to c)(pand so-called "controlled dcliveries.~ In addition, 

documents obtained by the Committee indicate that then-Attorney Genc.ral Michael 

Mukascy was personally briefed on thelle faik-d attempts and was asked to approve 

an expansion of these lactio;. During the course of the investigation, Hernandcz and 

his cCH:Onspirators reportedly porchased more than 200 firearms. 

ATF·Phoenix watched guns cross borde.r without interdiction 

According to their Operational Plan, ATf-Phoenix Field Division agents 

initlat~-d a fireanns trafficking in~5tigarion in July 2001 against Fidel Hernandez 

iIJld his associates who, between July and October 2007, "purdused over two 

hundred firearms" and were "believed to be transporting them into Mexico."'" ATP 

an",lyst5 disoovercd that emand~z and vehic1t!S registered to him h",d rcccntly 

crossed the border (from Mexico into the U.S.) on 23 occasions~ and that "four of 

their firearms were recovered in Sonora, Me.xiro."1!1 

ActVrding to contemporaneous ATF documents, ATF-PhoeniK ull5uC'CeSSfuUy 

attempted _ cross-border operation in Scptcmbt':r 2007 in coordination with Mexkan 

law enforCl:mcnt authorities: 

On September 26 and 21, 2007, rhocnix ATF agents conducted 

nonstop surveillance 0I'l Hernandez: and another iISSOdate, Carl05 

Morales. ATF had information that thes.e subjects were in possession 

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74504C1-30.eps

of approximately 19 firearms (including assault rifles and pistols) 

and were planning a firearm smuggling trip into Mexico. The 

surveillance operation was coordinated with Tucson I Field Office and 

the ATF Mexico Country Attache. The plan, agreed to by all parties 

and authorized by the Phoenix SAC, was to follow these subjects 

to the border crossing in Nogales, Arizona while being in constant 

communication with an ATF MCO [Mexico Country Office] agent 

who would be in constant contact with a Mexican law enforcement 

counterpart at the port of entry and authorized to make a stop of the 

suspects'vehicle as it entered into Mexico. 

On September 27, 2007, at approximately 10:00 pm, while the Phoenix 

agents, an MCO agent and Mexican counterparts were simu Itaneously 

on the phone, the suspects' vehicle crossed into Mexico. ATF agents 

observed the vehicle commit to the border and reach the Mexican side 

until it could no longer be seen. The ATF MCO did not get a response 

from the Mexican authorities until 20 minutes later when they 

informed the MCO that they did not see the vehicle cross." 

ATF headquarters raised concerns about operational safeguards 

Failed attempts to coordinate with Mexican authorities to capture suspected 

firearms traffickers as part of controlled deliveries raised serious concerns at ATF 

headquarters. On September 28, 2007, the day after the failed attempt, Carson 

Carron, ATF's then-Assistant Director for Enforcement Programs, notified William 

Hoover, ATF's then-Assistant Director of Field Operations, that they had failed in 

their coordination. Mr. Carroll stated that when the suspected firearms traffickers 

were observed purchasing a number of firearms from an FFL in Phoenix, Arizona, 

ATF officials "immediately contacted and notified the GOM [Government of Mexico 1 

for a possible controlled delivery of these weapons southbound to the Nogales, AZ., 

US/Mexico Border."'" Mr. Carroll continued: 

ATF agents observed this vehicle commit to the border and reach the 

Mexican side until it could no longer be seen. We, the ATF MCO did 

not get a response from the Mexican side until 20 minutes later, who 

then informed us that they did not see the vehicle cross."! 

According to internal ATF documents, ATF agents attempted a second 

cross-border controlled delivery with Mexican authorities on October 4, 2007. That 

operation also failed to lead to the successful capture of the subject in Mexico."> 

That same day, Assistant Director Hoover sent an email to Assistant Director 

Carroll and ATF-Phoenix Field Division Special Agent in Charge William Newell 

demanding a call to discuss the investigation: 

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74504C1-31.eps

Have we discussed the strategy with the US Attorney's Office re 

letting the guns walk? Do we have this approval in writing? Have 

we discussed and thought thrn the consequences of same? Are we 

tracking south of the border? Same fe US Attorney's Office. Did we 

find out why they missed the handoff of the vehicle? What are our 

expected outcomes? INhat is the timeline?"" 

The next day, Assistant Director Hoover wrote Mr. Carroll again: 

I do not want any firearms to go South until further notice. I expect 

a full briefing paper on my desk Tuesday morning from SAC Newell 

with every question answered. I will not allow this case to go forward 

until we have written documentation from the U.S. Attorney's Office 

re full and complete buy in. I do not want anyone briefed on this case 

until J approve the information. This includes anyone in Mexico.84 

Mr. Hoover's concerns seem to have temporarily halted controlled delivery 

operations in the Hernandez investigation. On October 6, 2007, Special Agent in 

Charge Newell wrote to Assistant Director Carroll: 

I'm so frustrated with this whole mess I'm shutting the case down and 

any further attempts to do something similar. We're done trying to 

pursue new and innovative initiatives-it's not worth the hassle. 85 

Nevertheless, Mr. Newell insisted that he did have approval from the U.S. 

Attorney's Office. He wrote: 

We DO have them [the U.S. Attorney's Office] on board and as a matter 

of fact they (Chief of Criminal John Tucchi) recently agreed to charge 

the firearms recipients in Mexico (if we could fully [10] them via a 

controlled delivery) with a conspiracy charge in US court.S6 

Despite the concerns expressed by Assistant Director Hoover, ATF 

operational plans show that additional controlled deliveries were plarmed for 

October 18, November 1, and November 26-27, 2007.87 The documents describe 

ATF plans to observe the purchases at the FFL, follow the suspects "from the FFL in 

Phoenix, AZ to the Mexican port of entry in Nogales, Arizona," allow the suspects to 

"cross into Mexico," and allow "Mexican authorities to coordinate the arrest of the 

subjects."" 

Attorney General Mukasey briefed and asked to "expand" operations 

In the midst of these ongoing operations, on November 16, 2007, Attorney 

General Michael Mukasey received a memorandum in preparation for a meeting 

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with Mexican Attorney General Medina Mora. The memo described the Hernandez 

case as "the first ever attempt to have a controlled delivery of weapons being 

smuggled into Mexico by a major arms trafficker."89 The briefing paper warned 

the Attorney General that "the first attempts at this controlled delivery have not 

been successful."9() Despite these failures, the memorandum sought to expand such 

operations in the future: 

ATF would like to expand the possibility of such joint investigations 

and controlled deliveries-since only then will it be possible to 

investigate an entire smuggling network, rather than arresting simply 

a single smuggler.91 

This briefing paper was prepared by senior officials at ATF and the 

Department of Justice only weeks after Assistant Director Hoover had expressed 

serious concerns with the failure of these tactics." 

The emails exchanging drafts of the Attorney General's briefing paper 

also make clear that ATF officials understood that these were not, in fact, the 

first operations that allowed guns to "walk." Assistant Director Carroll wrote to 

Assistant Director Hoover: "I am going to ask DOJ to change 'first ever' ... there 

have [been] cases in the past where we have walked gunS."93 That change never 

made it into the final briefing paper for Attorney General Mukasey. 

Ten days after Attorney General Mukasey was notified about the failed 

surveillance operations and was asked to expand the use of the cross-border gun 

operations, ATF agents planned another surveillance operation in coordination with 

Mexico. The Operational Plan stated: 

1) Surveillance units will observe [redacted] where they will attempt to 

confirm the purchase and transfer of firearms by known targets. 

2) Once the transfer of firearms is confirmed through surveillance, 

units will then follow the vehicle and its occupants from the FFL in 

Phoenix, AZ to the Mexican port of entry in Nogales, Arizona. Once 

the subjects cross into Mexico, ATF attaches will liaison with Mexican 

authorities to coordinate the arrest of the subjects. 

3) ATF agents will not be involved with the arrest of the subjects in 

Mexico but will be present to coordinate the arrest efforts between 

surveillance units and Mexican authorities as weI! as to conduct postarrest interviews." 

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As part of this operation, surveillance units were monitoring the FFL during 

normal business hours in order to observe large firearms transfers by their known 

targets.9S 

The Committee has not received any documents indicating that ATF-Phoenix 

agents were able to successfully coordinate 

with Mexican law enforcement to interdict 

firearms in the Hernandez case. During 

the course of the investigation, Hernandez 

and his co-conspirators purchased more 

than 200 firearms. In multiple instances, 

ATF agents witnessed Hernandez and his 

associates take these weapons into Mexico.96 

Hernandez and his associate were 

arrested in Nogales, Arizona on November 

27, 2007, while attempting to cross the 

border into Mexico." The defendants 

were charged with Conspiracy to Export 

Firearms, Exporting Firearms, and two 

COtmts of Attempted Exportation of 

Firearms. The defendants were brought to 

trial in 2009, but acquitted after prosecutors 

were tillable to obtain the cooperation 

of the Mexican law enforcement officials 

who had recovered firearms purchased by 

Hernandez. An ATF briefing paper from 2009 summarized the result: 

The judge also would not allow us to introduce eyidence of how the 

guns were found in Mexico unless we could produce the Mexican 

Police Officials who located the guns. We were unable to obtain the 

cooperation of Mexican law enforcement to identify and bring these 

witnesses to trial to testify. 98 

At the conclusion of the trial, the jury was unable to reach a verdict on three 

counts of the indictment, and the defendants were acquitted on a fourth charge.'" 

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3. The Medrano Case (2008) 

In February 2008, ATF agents in Phoenix began invl.'Stigaling a straw 

purd\asing network led by Alejandro Medrano. Documents obtained by the 

Committee indicate that on multiple Q('Casioru; throughout 2008, ATF agenb; were 

aware that Medrano and his associates were making illegal fireanns purchases 

and traffiCking the weapons into Mexico. According to documents obtained by the 

CommittllC, ATF·Phoenix did not arrest suspects fQr approximately one year while 

their activities continued, instead choosing 10 continue surveillance. During the 

summer of 2008, agents from U.S. Immigration imd Customs Enforrement (ICE) 

raised concerns about the lactics being used, but the tactics continued for several 

marc months. On December lO, 2008, a criminal complaint was filed against 

Medrano .md his associates in the United States District Court for the District of 

Ari:r.ona, and the targets were later sentenced to varying prison sentences. 

ATf agents watched as firearms crossed the border 

An ATF-Phocrtil' Operational Plan obtained by the Committee describes an 

instance on June 17, 2008, in which ATF agents watched Medrano and an associate, 

Hernan Ramos, illegally purchase fireanns at an FFL in Arizona, load them in their 

car, and smuggle them into Mexico: 

Agents observed both subjects place the firea rms in the backseat and 

trunk lof a vehicle]. Agents and officers surveilled the vehicle to 

Douglas, AZ where it cr05sed into Mexico ilt the Douglas Port of Entry 

(POE) before a stop could be coordinated with cap ICustoms and 

Border Protection).' '''"' 

Neither Medrano nor Ramos was arrested or detained at thl: time or in the 

months after. The Operational Plan does not include any indication that ATF agents 

attempted to coordinate wilh Mexican law enforcement. l"he fact that the suspects 

continued 10 make firearms purdlases in the United States and fake then' to Me.l<ioo 

suggests that they were nol intercepted by Mexican law enforcement. 
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In the two months following these surveillance operations, Medrano and 

his co-conspirators purchased several additional firearms at gun shows and from 

FFLs in the Phoenix area.!Ol The suspects also continued to travel back and forth to 

Mexicoo'02 The ATF Operational Plan also stated: 

The group particularly targeted gun shows where several members 

purchased firearms from various FFL'So According to TECS [the 

Treasury Enforcement Communications System, a government 

database used to track individuals' travel patternsj, identified subjects 

routinely crossed into Mexico prior to and following a large number 

of firearms purchaseso While only purchasing a small number of 

firearms, MEDRANO crossed into Mexico utilizing several vehicles 

that were not registered to him or his immediate familyo MEDRANO 

routinely returned to the US on foot while other identified subjects 

drove a vehicle into the US. It is believed that identified subjects 

entering the US on foot were carrying bulk cash to pay for future 

firearms.'03 

According to the Operational Plan, multiple firearms connected to the 

network were recovered in Mexico, some very soon after they were sold: 

Heman RAMOS purchased a 7.62 caliber rifle in February 2008 that 

was recovered in June 2008. Jose ARIZMENDIZ purchased hvo pistols 

that were recovered at the same location in Mexicoo One of the pistols 

had a time to crime of fifteen (15) days.104 

ICE agents raised concerns 

Documents obtained by the Committee indicate that in the summer of 2008, 

ATF agents handling the Medrano investigation met with ICE agents to coordinate 

surveillana.' of another cross-border smuggling attempt. At this meeting, ICE agents 

balked when they learned about the tactics being employed by ATF-Phoenix. On 

August 12, 2008, the head of ICE's offices in Arizona wrote to ATF Special Agent in 

Charge Newell asking for an in-person meeting about the dispute among agents 

over ATF operational plans to allow straw purchased guns to cross the border: 

One of [the rCF] groups worked with your guys over the weekend on 

a surveillance operation at a Tucson gun show. While we had both 

met in advance with the USAO, our agents left that meeting with the 

understanding that any weapons that were followed to the border 

would be seizedo On Friday night, however, our agents got an op 

plan that stated that weapons would be allowed to go into Mexico for 

further surveillance by LEAs [law enforcement agents] there.'05 

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In his response, Mr. Newell acknowledged that letting guns cross the border 

was part of ATF's plan, but stated that he needed more information about what had 

happened: 

I need to get some clarification from my folks tomorrow because I was 

told that your folks were aware of the plan to allow the guns to cross, 

in close cooperation with both our offices in Mexico as well as Mexican 

Feds.106 

Although the subsequent correspondence does not explain how this dispute 

was resolved, the Medrano trafficking network reportedly supplied over 100 

assault rifles and other weapons "to a member of the Sinaloan drug cartel known as 

'Rambo."']O? 

Criminal complaint also confirms "gunwalking" 

On December 10, 2008, Federal prosecutors filed a complaint in the United 

States District Court for the District of Arizona that describes in detail pm 

trafficking activities conducted by Medrano and his associates that involved more 

than 100 firearms over the course of the year. The complaint confirms that ATF 

agents watched as Medrano and his associates trafficked illegal firearms into Mexico. 

For example, the complaint discusses the incident on June 17, 2008, discussed above, 

in which ATF agents observed the suspects purchase weapons, load them in their 

car, and drive them to Mexico. The complaint states: 

On or about June 17, 2008, at or near 

Tucson, Arizona, Alejandro Medrano 

and Hernan Ramos went together 

to Mad Dawg Global, a federally 

licensed firearms dealer, where 

Hernan Ramos purchased six (6) 

.223 caliber rifles for approximately 

$4800.00 and falsely represented 

on the 4473 that he was the actual 

purchaser. Both ALejandro Medrano 

and Hernan Ramos placed the six 

(6) rifles in the back seat of their 

vehicleYs 

The complaint then explains that the 

suspects drove these firearms across the 

border. It states: 

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Alejandro Medrano d rove Heman Ramos's vehicle with Heman 

Ramos as a passenger from Mad Oawg Global in Tusoon, Arizona, to 

the Douglas Port of Entry where they both entered into Mexico with at 

least the sbe (6) .223 caliber rifles in the vehide .l~ 

The complaint states that the information was obtained by ATF agents 

conduding surveillance: 

ATF Spedal Agents conducted surveillwce, recorded firearrru; 

tr.msactions, and identified the dates and times that the COIllIpirators 

herein crossed the international border either in vehicles or on loot.'10 

Thecomplaint allio describes how quickly Medrano and his associates 

traveled back and forth betwccn the United States and Mexico for additional firearm 

purchases. For example, in one instance on May 21, 2008, Heman Ramos entered 

the UnitL>d States and returned to Mexico "less than two hours later in the same 

vehicle." The complaint also states that in another instance on August 13, 2008, 

Medrano and an associate entered the United States "driving a vehicle which had 

entered into Mexico approximately fifteen minutes earlier."m 

On August 9, 2010, Medrano was "sentenced to 46 months in prison for his 

leadership role in the conspiracy."'I) Ramos was ~ntenced to SO months in prison 

and "(mlost of the remaining defendants in the conspiracy received prison terms 

ranging from 14 to JO months."IIJ Many of the firearms purchased by the Medrano 

network were subsequently recovered in Mexico.'" 

2006-07 2007 200' 2009-10 

4. Operation Fast and Furious (2009-10) 

The investigation that became known as Operation Fast and FuriOUS began 

in the ATF Phoenix Field Divi3ion in October 2009. Despite having identified 20 

suspects who paid hundreds of thousands of dollars in cash to buy hundreds of 

military-grade firearms on behalf of the same trafficking ring, ATf-Phoenix and 

the Arizona U.S. Attorney's Office asserted thai thL'Y lacked probable cause for any 

arrests. Three months inlo tne investigation, they agreed instead on a broader 

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slralegy 10 build a bigg<:r case against carlel leaders, rather than straw purchasers-, 

through long-term surveillance and wirftaps. While they pursued this broader 

strategy, ATF-Phocnix agents did not interdict hundreds of firearms purdlased Dnd 

distrlbuh.'<I by the suspects under their surveillance. In March 2010, the Deputy 

Diredor of ATF became concerned with the ope.ralion and ordered an "exit" strategy 

to bring indictments within 90 days. The documents indicate that ATF-Phocnb; field 

agents chaf<!d against this dirl'1:tive, ho .... '!;!ver, and allowed suspect purchases tu 

continue for months in an effort 10 salvagf the broader goal of the inVl'Stigation. In 

January 2011 , the U.S. Attorney's Office indided 19 slraw purchasers and the local 

organizer of the nelwork, all of whom had been idomtified at Ihe beginning of Ihe 

investigation in 2009. 

Initialed by ATF-Phoenix in the Fall of 2009 

According to documents obtained by the Committee, the investigation that 

became known as Operation Fast and Furious started in October 2009 when ATF 

agents received a tip thai four suspected straw purchascns had acquired numerous 

AK-47 style rifles from the same gun dealer. ATfi" also received a tip about a man 

named Urid Patino who had purchased numerous AK4.7 rifles from the same 

dealer."s 

The next momh, ATF 

identified sil{ additional 

suspected straw purdlasers and 

1\"0 local properties that were 

being utilized as firearm drop 

locations.l1• On November 

20,2009, some of the guns 

purchased by the suspects 

wcre recovered in Naco, 

Mexico, induding firearms 

with a "shorl time to crim .~ 

Two additional suspects were 

identified based on the firearms 

remvered in Naco.1I7 

ATF_Phoenix pr6e nlalion on Fast d Furious 

The caSl' continued 10 grow in December with the idCJltification 01 seven 

additional suspected straw purchasers and Manuel Celis-Acosta, a suspect 

ronnfcted to a large-scale Drug Enforcement Administration (DEA) investigation.11I 

A Briefing Paper prepared by ATF-Phocnix noted the size o( the organization 

and the rapid pace of firearm purchases in thOSf! initial months- of the investigation. 

It stated: 

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It should also be noted that the pace of firearms procurement by this 

straw purchasing group from late September to early December, 2009 

defied the "normal" pace of procurement by other firearms trafficking 

groups investigated by this and other field divisions. This "blitz" was 

extremely out of the ordinary and created a situation where measures 

had to be enacted in order to slow this pace down in order to perfect a 

criminal case.l19 

The Briefing Paper stated that the investigation had identified more than 20 

individual straw purchasers, all connected to the same trafficking ring, who "had 

purchased in excess of 650 firearms (mainly AK-47 variants) for which they have 

paid cash totaling more than $3S0,000.00"120 

Prosecutors claimed no probable cause to arrest straw buyers 

According to documents obtained by the Committee, on January S, 2010, 

ATF-Phoenix officials working on the investigation had a meeting with the lead 

prosecutor on the case, Arizona Assistant U.s. Attorney Emory Hurley. TIle ATF 

agents and the prosecutor wrote separate memos following the meeting reflecting 

a consensus that no probable cause existed to arrest any of the straw purchasers 

despite the significant number of firearms that had been purchased. The ATFPhoenix Briefing Paper, prepared three days after the meeting, stated: 

On January 5, 2010, ASAC Gillett, GS [Group SupervisorJ Voth, and 

case agent SA MacAllister met with AUSA Emory Hurley who is the 

lead federal prosecutor on this matter. Investigative and prosecutions 

strategies were discussed and a determination was made that there 

was minimal evidence at this time to support any type of prosecution; 

therefore, additional firearms purchases should be monitored and 

additional evidence continued to be gathered. This investigation was 

briefed to United States Attorney Dennis Burke, who concurs with the 

assessment of his line prosecutors and fully supports the continuation 

of this investigation.l21 

Similarly, the prosecutor wrote a memo to his direct supervisor, stating: "We 

have reviewed the available evidence thus far and agree that we do not have any 

chargeable offenses against any of the players."122 

During a transcribed interview with Committee staff, the ATF-Phoenix Group 

Supervisor who oversaw the operation and participated in the meeting explained 

that he had to follow the prosecutor's probable cause assessment: 

I don't think that agents in Fast and Furious were forgoing taking 

action when probable cause existed. We consulted with the U.s. 

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Attorney's Office. And if we disagree, I guess we disagree. But if the 

u.s. Attorney's Office says we don't have probable cause, I think that 

puts us in a tricky situation to take action independent, especially if 

that is contradictory to their opinion. 123 

In another exchange, the Group Supervisor explained the prosecutor's 

assessment with respect to Uriel Patino, the single largest suspected straw purcbaser 

in the Fast and Furious network: 

Q: Does that meet your understanding of probable cause to 

interdict a gun wben Uriel Patino goes in for the fifth or sixth 

or 12th time to purchase more and more guns with cash? 

A: We talked that over at the u.s. Attorney's Office, and the 

conclusion was that we would need independent probable 

cause for eacll transaction. Just because he bought 10 guns 

yesterday doesn't mean that the 10 he is buying today are 

straw purchased. You can't transfer probable cause from 

one firearm purchase to the next firearm purchase. You need 

independent probable cause for each occurrence. 

Q: And it doesn't matter not just that he bought 10 last week 

and 20 the week before, but that five of them ended up in 

Mexico at a crime scene, at a murder? 

A: Again, in talking to the U.s. Attorney's Office, unless we 

could prove that he took them to Mexico, the fact that he 

sold them or transferred them to another [non-prohibited] 

party doesn't necessarily make him a firearms trafficker. If 

he sells them to his neighbor lawfully and then his neighbor 

takes them to Mexico, it is the neighbor who has done the 

illegal act, not Patino, who sold them to his neighbor.12i 

Although the determination of whether sufficient probable cause existed 

to make arrests ultimately rested with the prosecutor, documents obtained by the 

Committee indicate that all of the participants agreed with the strategy to proceed 

with building a bigger case and to forgo taking down individual members of the 

straw purchaser network one-by-one. The ATF Briefing Paper stated: 

Currently our strategy is to allow the transfer of firearms to continue 

to take place albeit, at a much slower pace, in order to further the 

investigation and allow for the identification of additional coconspirators who would continue to operate and illegally traffic 

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firearms to Mexican DTOs [drug trafficking organizations] which are 

perpetrating armed violence along the Southwest Border.'25 

During his transcribed interview with Committee staff, Special Agent in 

Charge Newell explained: 

[TJhe goal was twofold. It was to identify the firearms-trafficking 

network, the decision-makers, and not just focus on the straw 

purchasers. We would go after the decision-makers, the people who 

were financing.n6 

He stated that it was critical to identify the network rather than arresting 

individual straw purchasers one-by-one: 

The goal of the investigation, as I said before, was to identify the whole 

network, knowing that if we took off a group of straw purchasers this, 

as is the case in hundreds of firearms trafficking investigations, some 

that I personally worked as a case agent, you take off the low level 

straw purchaser, all you're doing is one of - you're doing one of two 

things, one of several things. You're alerting the actual string-puller 

that you're on to them, one, and, two, all they are going to do is go out 

and get more straw purchasers. 

Our goal in this case is to go after the decision-maker, the person at the 

head of the organization, knowing that if we remove that person, in the 

sense of prosecute that person, successfully, hopefully, that we would 

have much more impact than just going after the low-level straw 

purchaser. 127 

Prosecutor encouraged U.S. Attorney to "hold out for bigger" case 

In addition to finding no probable cause to arrest suspected straw 

purchasers who had already purchased hundreds of firearms, the lead prosecutor 

recommended against employing traditional investigative tactics against the 

suspects. In a memorandum to his supervisor on January 5, 2010, Mr. Hurley wrote: 

In the past, ATF agents have investigated cases similar to this by 

confronting the straw purchasers and hoping for an admission that 

might lead to charges. This carries a substantial risk of letting the 

members of the conspiracy know that they are the subject of an 

investigation and not gain any useful admissions from the straw buyer. 

In the last couple of years, straw buyers appear to be well coached 

in how to avoid answering question about firearms questions. Even 

when the straw buyers make admissions and can be prosecuted, they 

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are easily replaced by new straw buyers and the flow of guns remains 

unabated. 128 

The lead prosecutor noted that ATF-Phoenix was aware that ATF 

headquarters would likely object to both the strategy of trying to build a bigger case 

and the proposal to forgo using traditional law enforcement tactics: 

ATF [Phoenix 1 believes that there may be pressure from ATF 

headquarters to immediately contact identifiable straw purchasers 

just to see if this develops any indictable cases and to stem the flow 

of guns. Local ATF favors pursuing a wire and surveillance to build 

a case against the leader of the organization. If a case cannot be 

developed against the hub of the conspiracy, he will be able to replace 

the spokes as needed and continue to traffic firearms. I am familiar 

with the difficulties of building a case only upon the interviews of a 

few straw purchasers and have seen many such investigations falter 

at the first interview. I concur with Local ATF's decision to pursue a 

longer term investigation to target the leader of the conspiracy."9 

Later the same day, January 5, 2010, the lead prosecutor's supervisor 

forwarded the memorandum to u.s. Attorney Dennis Burke, recommending that he 

agree to both the strategy and tactics. The supervisor's email to Mr. Burke stated: 

Dennis-Joe Lodge has been briefed on this but wanted to get you 

a memo for your review. Bottom line - we have a promising guns 

to Mexico case (some weapons already seized and accounted for), 

local ATF is on board with our strategy but ATF headquarters may 

want to do a smaller straw purchaser case. We should hold out for 

the bigger case, try to get a wire, and if it fails, we can always do the 

straw buyers. Emory's memo references that this is the "Naco, Mexico 

seizure case" -you may have seen photos of that a few months ago, l30 

Mr. Burke responded two days later with a short message: "Hold out for 

bigger. Let me know whenever and wi whomever I need to weigh-in."131 

Although Mr. Burke agreed with the proposal to target the organizers of the 

firearms trafficking conspiracy, he told Committee staff that neither ATF-Phoenix 

nor his subordinates suggested that agents would be letting guns walk as part of the 

investigation. As discussed in Section C, below, Mr. Burke stated in his transcribed 

interview that he was under the impression that ATF-Phoenix was coordinating 

interdictions with Mexican officials. Mr. Burke stated: 

I was under the opposite impression, which was that based on his [Mr. 

Newell's 1 contacts and the relationships with Mexico and what they 

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were doing, that they would be working with Mexico on weapons 

transferred into Mexico.B2 

According to documents obtained by the Committee, Mr. Burke also received 

explicit assurances from the lead prosecutor on the case, Mr. Hurley, that ATFPhoenix agents "have not purposely let guns 'walk."''''' 

ATF-Phoenix sought funding and wiretaps to target higher-level 

suspects 

To secure additional resources for Operation Fast and Furious, including 

agents, funding, and sophisticated investigative tools, ATF-Phoenix requested 

funding from the Organized Crime Drug Enforcement Task Forces (OCDETF) 

Program, which provides funding "to identify; disrupt, and dismantle the most 

serious drug trafficking and money laundering organizations and those primarily 

responsible for the nation's drug supply."I34 

In January 2010, ATF-Phoenix submitted an investigative strategy in its 

application for funding from OCDETF.'35 ATF-Phoenix and the u.s. Attorney's 

Office used evidence gathered from another agency's investigation to draft its 

proposal.'36 The application explained that the goal Operation Fast and Furious was 

to bring down a major drug trafficking cartel: 

The direct goal of this investigation is to identify and arrest members 

of the CONTRERAS DTO [Drug Trafficking organization] a8 well as 

seize assets owned by the DTO. Based upon the amount of drugs 

this organization distributes in the US it is anticipated that the 

investigation will continue to expand to other parts of the US and 

enable enforcement operations in multiple jurisdictions. In addition 

to the CONTRERAS DTO, this investigation is intended to identify 

and expand to the hierarchy within the Mexico-based drug trafficking 

organization that directs the CONTRERAS DTO.137 

ATF-Phoenix's proposal for Operation "The Fast and the Furious" was 

approved by an interagency group of Federal law enforcement officials in Arizona in 

late January 2010.138 

ATF-Phoenix also drafted a proposal to conduct a wiretap with the goal of 

obtaining evidence to connect the straw purchasers to the leaders of the firearms 

trafficking conspiracy."· During his transcribed interview with Committee staff, U.s. 

Attorney Burke explained the purpose behind this wiretap application: 

[TJhe belief was, at least in I think January 2010, was when they first, 

my recollection is that they first started referencing the interest in 

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getting the [wiretap]. But the point being that they were going to try to 

reach beyond just the straw purchasers and figure out who the actual 

recruiters were and organizers of the gun trafficking ring.140 

ATF-Phoenix submitted its wiretap application with the necessary affidavits 

and approvals from the Department of Justice, Office of Enforcement Operations, 

and received federal court approval for its first wiretaps.l,n 

ATF-Phoenix agents watched guns walk 

Documents obtained by the Committee indicate that while ATF-Phoenix 

and the US. Attorney's Office pursued their strategy of building a bigger case 

against higher-ups in the firearms trafficking conspiracy, ATF-Phoenix field agents 

continued daily surveillance of the straw purchaser network. With advance or realtime notice of many purchases by the cooperating gun dealers, the agents watched 

as the network purchased hundreds of firearms, One ATF-Phoenix agent assigned 

to surveillance described a common scenario: 

fA] situation would arise where a known individual, a suspected straw 

purchaser, purchased firearms and immediately transferred them or 

shortly after, not immediately, shortly after they had transferred them 

to an unknown male. And at that point I asked the case agent to, if we 

can intervene and seize those firearms, and I was told no.142 

When asked about the number of firearms trafficked in a given week, one 

agent answered: 

Probably 30 or 50. It wasn't five. There were five at a time. These 

guys didn't go to the FFLs unless it was five or more. And the only 

exceptions to that are sometimes the Draco, which were the AK-variant 

pistols, or the FN Five-seveN pistols, because a lot of FFLs just didn't 

have ... 10 or 20 oUhose on hand.'" 

Agents told the Committee that they became increasingly alarmed as this 

practice continued, which they viewed as a deparhlre from both protocol and their 

expectations as law enforcement officials. One agent stated: 

We were walking guns. It was our decision, We had the information, 

We had the duty and the responsibility to act, and we didn't do so. 

So it was us walking those guns. We didn't watch them walk, we 

walked.'44 

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ATF Deputy Director Hoover ordered an "exit strategy" 

The documents obtained and interviews conducted by the Committee 

indicate that, following a briefing in March 2010, ATF Deputy Director William 

Hoover ordered an "exit strategy" in order to extract ATF-Phoenix from this 

operation. At the March briefing, the ATF Tntelligence Operations Specialist and 

the Group Supervisor made a presentation regarding Operation Fast and Furious 

that covered the suspects, the number of firearms each had purchased, the amount 

of money each had spent, the kno,,",'ll stash houses where guns were deposited, 

and the locations in Mexico where Fast and Furious firearms had been recovered. 

The briefing also included Assistant Director for Field Operations Mark Chait and 

Deputy Assistant Director for Field Operations William McMahon, four ATF Special 

Agents in Charge from ATF's Southwest border offices, and others. 

In his transcribed interview with Committee staff, Deputy Director Hoover 

stated that he became concerned sometime after the briefing about the number of 

guns being purchased and ordered an "exit strategy" to close the case and seek 

indictments within 90 days: 

Q: It's our understanding that you and Mr. Chait, in March 

approximately, asked for an exit strategy for the case? 

A: That is correct .... 

Q: And if you could tell us what led to that request? 

A: We received a pretty detailed briefing in March, I don't 

remember the specific date, I'm going to say it's after the 

15th of March, about the investigation, about the number 

of firearms purchased by individuals .... That would have 

been by our Intel division in the headquarters .... During 

that briefing I was, you know, just jotting some notes. And I 

was concerned about the number of firearms that were being 

purchased in this investigation, and I decided that it was 

time for us to have an exit strategy and I asked for an exit 

strategy. It was a conversation that was occurring between 

Mark Chait, Bill McMahon and myself. And I asked for the 

exit strategy 30, 60, 90 days, and I wanted to be able to shut 

this investigation down. 

Q: And by shutting the investigation down, you were interested 

in cutting off the sales of weapons to the suspects, correct? 

A: That's correct. 

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Q: And you were worried, is it fair to say, that these guns were 

possibly going to be getting away and getting into Mexico 

and showing up at crime scenes? 

A: I was concerned not only that that would occur in Mexico, 

but also in the United StatesYs 

Other than requesting an exit strategy, Mr. Hoover did not recall making any 

other specific demands because he generally "allowed field operations to run that 

investigation." 146 

ATF-Phoenix did not foHow the 90-day exit strategy and continued 

the operation 

In April 2010, more than one month after Deputy Director Hoover's demand 

for an exit strategy, ATF-Phoenix still had not provided it, and Special Agent in 

Charge Newell expressed his frustration with perceived interference fromATF 

headquarters that he believed could prevent him from making a larger caSE. In an 

April 27, 2010, email to Deputy Assistant Director McMahon, he wrote: 

I don't like HQ driving our cases but understand the" sensitivities" 

of this case better than anyone. We don't yet have the direct link to 

a DTO that we want/need for our prosecution, [redacted]. Once we 

establish that link we can hold this case up as an example of the link 

between narcotics and firearms trafficking which would be great on a 

national media scale but if the Director wants this case shut down then 

so be it.147 

Although Mr. Newell delivered an exit strategy that day at Mr. McMahon's 

reminder, the operation continued to grow and expand rather than wind down over 

the months to follow.'48 In June 2010, three months after Deputy Director Hoover's 

directive, the operational phase of the case was still continuing. On June 17, 2010, 

the ATF-Phoenix Group Supervisor received an email from a cooperating gun dealer 

raising concerns about how the firearms he was selling could endanger public safety. 

The dealer stated: 

As per our discussion about over communicating I wanted to share 

some concerns that came up. Tuesday night I watched a segment of 

a Fox News report about firearms and the border. The segment, if 

the information was correct, is disturbing to me. When you, Emory 

and I met on May 13lh I shared my concerns with you guys that I 

wanted to make sure that none of the firearms that were sold per our 

conversation with you and various ATI agents could or would ever 

end up south of the border or in the hands of the bad guys. I guess I 

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am looking for a bit of reassurance that the guns are not getting south 

or in the wrong hands. I know it is an ongoing investigation so there 

is limited information you can share with me. But as I said in our 

meeting, I want to help All with its investigation but not at the risk of 

agents safety because I have some very dose friends that are US Border 

Patrol agents in southern AZ as well as my concern for all the agents 

safety that protect our country.H9 

A month later, on July 14, 2010, Special Agent in Charge Newell sent an email 

to an All colleague in Mexico stating that All was "within 45-60 days of taking 

this [Operation Fast and Furious] down IF the USAO goes with our 846/924(c) 

conspiracy plan."lso At that time, the case was still months away from indictment. 

In August 2010, the operation continued, with another cooperating gun dealer 

writing to the All-Phoenix Group Supervisor seeking advice about a large purchase 

order made by Uriel Patino, who personally purchased more than 600 assault 

weapons from a small handful of cooperating gun dealers. The dealer stated: 

One of our associates received a telephone inquiry from Uriel Patino 

today. Uriel is one of the individuals your office has interest in, and he 

looking to purchase 20 FN-FNX mm firearms. We currently have 4 of 

these firearms in stock. If we are to fulfill this order we would need to 

obtain the additional 16 specifically for this purpose. 

I am requesting your guidance as to weather [sic] or not we should 

perform the transaction, as it is outside of the standard way we have 

been dealing with him.lsl 

The Group Supervisor wrote back requesting that the gun dealer fulfill the order: 

[Olur guidance is that we would like you to go through with Mr. 

Patino's request and order the additional firearms he is requesting, 

and if possible obtain a partial down payment. This will require 

further coordination of exact details but again we (ATF) are very much 

interested in this transaction and appreciate your [] willingness to 

cooperate and assist us.152 

During a transcribed interview with Committee staff, another cooperating 

gun dealer explained that ATF agents had promised to address the concerns he 

raised about their capability to interdict these weapons: 

I was assured in no uncertain terms-and let me be straight about this. 

She assured that they would have enough agents on sight to surveil the 

sale and make sure that it didn't get away from them, as it was stated 

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to me .... To continue, we went along with these sales at their request. 

ATF would want us to continue with them, and we did 50.'>1 

Indictments delayed for months 

By August 2010, rather than indicting the suspects in Operation Fast and 

Furious, ATF-Phoenix and the prosecutor were still in the process of compiling 

evidence to make indictment decisions. During his transcribed interview with 

Committee staff, Special Agent in Charge Newell stated: 

Well, the next phase in the investigation, it really moves from an 

investigation phase to prosecution phase at that point in the sense 

of getting the case ready for indictment. So I know that the case 

agent ... as well as the others were meeting regularly with the AUSA 

Emory Hurley, compiling aU the different pieces of evidence specific 

to each individual prospective defendant, to get to a point where we 

met what we felt in conjunction with the US. Attorney's Office, in 

coordination with them, that met the burden of proof to be able to seek 

an indictment.'5' 

Mr. Newell stated that he understood that this process of "compiling" 

evidence takes significant time and, as a result, "we were hoping to get indictments 

in, as I recall, I think it was maybe October, November roughly."'ss Mr. Newell 

attributed the delay in the indictments to "a combination of workload [at the U.S. 

Attorney's Office 1 and the fact that there was a lot of work that needed to be done as 

far as putting the charges together."156 

In contrast, U.S. Attorney Burke informed Committee staff that the delay in 

the indictments was because ATF-Phoenix failed to produce to the prosecutor the 

completed case file until October 2010: 

There is a formal process when an agency gives us a case with their 

cover, and the actual full documentation of the case was given to us, 

our office in October 2010, and I believe it was represented that it was 

given to us in August 2010.'57 

On January 19, 2011, ten months after Deputy Director Hoover ordered an 

exit strategy; the U.S. Attorney's Office filed an indictment against Manuel CelisAcosta and 19 straw purchasers that included counts for conspiracy, dealing in 

firearms without a license, conspiracy to possess a controlled substance with intent 

to distribute, possession with intent to distribute marijuana, conspiracy to possess 

a firearm in furtherance of a drug trafficking offense, false statements in connection 

with acquisition of firearms, conspiracy to commit money Jaundering, money 

laundering, and aiding and abetting.158 

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i 

Fait & FurioUlln'lHtigation 

FlrMnn Rec:ovtftK 

o..plU'm~ ' of 1uotk., ~po"of Fi,. .. ,mo R.""""ri ..... of [ndlc.m ..... of S"'J>«" (Ian. 21, 2(1 11) 
198 


74504C1-50.eps

CHALLENGES SPECIFIC TO THE ARIZONA 

U.S. ATTORNEY'S OFFICE 

Numerous ATF agents in Phoenix and senior ATF officials in Washington, 

nc. informed the Committee that the U.S. Attorney's Office in Arizona historically 

has been reluctant to prosecute firearms traffickers. Due to the Federal prosecutors' 

analysis of heightened evidentiary thresholds in their district. agents reported that 

they faced significant challenges over the course of many years getting the U.S. 

Attorney's Office in Arizona to arrest, prosecute, and convict firearms traffickers. 

"Viewed as an obstacle more than a help" 

In testimony before the Committee, ATF Special Agent Peter Forcelli stated 

that within a few weeks of transferring to the Phoenix Field Division from New York 

in 2007, he notioed a differenoe in how Federal prosecutors in Arizona handled gun 

cases: 

ill my opinion, dozens of firearms traffickers were given a pass by the 

U.s. Attorney's Office for the District of Arizona. Despite the existenoe 

of "probable cause" in many cases, there were no indictments, no 

prosecutions, and criminals were allowed to walk free. 159 

Special Agent Forcelli testified that "this situation wherein the United States 

Attorney's Office for Arizona in Phoenix declined most of our firearms cases, was at 

least one factor which led to the debacle that's now known as 'Operation Fast and 

Furious."'160 He added that little improvement has been made to date: 

I would say, if anything, we have gone from a 'D-minus' to maybe a 

'D.' It is still far from, again, effective or far from what, you know, the 

taxpayers deserve. But it is still very bad. I mean I wouldn't say it is 

effective .... Glms in the hands of gang members or cartel traffickers, 

that's pretty concerning.161 

He added: "the U.s. Attorney's Office is kind of viewed as an obstacle more 

than a help in criminal prosecutions here in Arizona, here in the Phoenix area."162 

ill his transcribed interview with Committee staff, Acting ATF Director 

Kenneth Melson stated that Arizona historically has been a very difficult place to 

prosecute firearms traffickers. He stated: 

A: We have had, as Peter Forcelli said, a long history with the 

District of Arizona going back to Paul Charlton, if not earlier, 

where it was difficult to get these cases prosecuted. Diane 

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Humetewa was the second US. Attorney there who had 

issues with our cases and wouldn't prosecute. I was head of 

the Executive Office for U.S. Attorneys at the time. I know 

exactly what was going on there and the issues we had with 

getting cases prosecuted in the District of Arizona. 

Q: What was going on there? 

A' Well, theyQ: Were they prosecuting gun cases? 

A: No, no. And they had a limit-for example, they wouldn't 

take any case that had less than 500 pounds of marijuana 

coming across the border with people in custody of it. We 

had to take some of our most significant cases to the state 

courts to try because they wouldn't take them. 

Q: So is it fair to say there was a frustration-I believe you said 

earlier there was a frustration and aggravation with the 

Arizona US. Attorney's office, is that fair? 

A: Yes, I think there was a frustration. Peter Forcelli said it 

really like it was. Let me say it, Dennis Burke has really 

made a change in the office. And he has turned that office 

around, maybe not 180 degrees but he's getting there. 

He's at least at 45 or 50 degrees. We have gotten more 

prosecutions out of his office than before, but historically, we 

have had a real hard time getting prosecutions. And when 

we do, we get no sentences. The guidelines are so IOW.'63 

Evidentiary thresholds in Arizona 

According to ATF officials, prosecutors in the Arizona U,S. Attorney's Office 

insisted that they could not prosecute firearms cases without physical possession 

of the firearms at issue. The prosecutors referred to this as the doctrine of corpus 

delicti ("body of the crime").!M Because it was difficult to get Mexican authorities 

to cooperate in returning recovered firearms from that country, agents claimed that 

this created an effective bar to prosecution of many trafficking suspects. Agents told 

the Committee that prosecutors in the Arizona US, Attorney's Office applied the 

corpus delicti doctrine to refuse to prosecute cases even when suspects confessed to 

committing the crime.!65 

ATF counsel strongly disagreed with the US. Attorney's Office that firearms 

had to be present to prove that straw purchasers had lied on the Federal forms they 

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fiUed out when purchasing firearms. According to Special Agent in Charge Newell, 

the other other U.S. Attorneys' offices in his jurisdiction-New Mexico, Colorado, 

Wyoming, and Utah-did not share Arizona's interpretation of this evidentiary 

standard."6 

On February 24, 2010, ATF counsel prepared a memorandum criticizing 

the corpus delicti doctrine as interpreted by the Arizona U.S. Attorney's Office. The 

memo stated: 

In furtherance of ATF's primary investigative authority and the 

Southwest Border Initiative, ATF agents spend a very significant 

number of hours- and often place themselves in dangerous 

circumstances-investigating alleged straw transactions as part of 

firearms trafficking cases. In recent years, few of these investigations 

have resulted in Federal prosecutions in the District of Arizona. It 

is our desire to work with your office to adjust the scope of our 

investigations and/or our investigative procedures to provide straw 

purchaser cases that fall within the prosecution guidelines of your 

office.!67 

According to ATF agents in Phoenix, the U.S. Attorney's Office also 

established additional evidentiary hurdles that made prosecuting firearms cases 

difficult, including requiring independent evidence of illegality for each firearms 

transaction. According to ATF agents, prosecutors would not build a case based on 

a pattern of multiple successive firearms purchases followed in qUick succession 

by trips to Mexico. Instead, agents had to prove that each transaction, standing by 

itself, was illegaL The ATF-Phoenix Group Supervisor for Fast and Furious told the 

Committee how this policy applied: 

We talked that over at the U.S. Attorney's Office, and the conclusion 

was that we would need independent probable cause for each 

transaction. Just because he bought 10 guns yesterday doesn't 

mean that the 10 he is buying today are straw purchased. You 

can't transfer probable cause from one firearm purchase to the next 

firearm purchase. You need independent probable cause for each 

occurrence. 1GB 

The ATF Group Supervisor explained that application of this requirement 

meant that agents could not rely on prior actions as the basis for arresting suspected 

straw purchasers or interdicting weapons. 169 

ATF agents also informed the Committee that the Arizona U.s. Attorney's 

Office required proof, by clear and convincing evidence, that every person in a chain 

of people who possessed the firearm had the intent to commit a crime. 17D Agents 

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understood this to mean that they would not have sufficient probable cause to arrest 

a suspect or interdict weapons when suspects transferred guns to non-prohibited 

persons who then trafficked the guns to Mexico.l7l 

DEA photo from announcement of Fast and Furious indictments 

(JaRuaty 2011) 

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C. No EVIDEN CE THAT SENIOR OFFICIALS 

AUTHOruZED OR CONDONED GUNWALKING IN 

FAST AND FURIOUS 

Contrary to some claims, the Committee has obtained no evidence that 

Operation Fast and Furious was conceived ~nd directed by high.ll.'vel political 

appointees at the Department of Justice. Rather, the documl'nts obtained and 

interviews conducted by the Committee reflect that Fast and Furious was thc latest 

in a series of fatally flawed operations ron by ATF's i'hocnb: Field Di\li on and the 

Arizona U.S. Attorney's Office during both the previous and current administrations. 

The Acting Director of ATr, the Deputy Director of ATF, and the U.s. Attorney 

in Arizona eadllold the Committee that they did not approve of gunwalking in 

Operation Fast and Furious, were not aw.ne thai agents in ATF-Phoenix were using 

the tactic, and never raised any concerns with senior officials at the D"l'artment of 

Justice in Washington, D.C. In addition, the Deputy Attorney General and ASSistant 

Attomey General for the Criminal Division both stated that ATF and prosecutors 

never raised concerns about gunwalking in Operation Fast and Furious to their 

attention, and that, if they had ba-n told about gunwalking, they would have shut 

it down. The Attomey General has stated consistently that he was not aware of 

allegations of gunwalking until 2011, and the Committee has received no evidence 

that ('Ontradicts this assertion. 

Attorney General Holder 

The Attomey General has stated repeatedly 

that he was unaware that gunwalking oa::urred in 

Operation Fast and Furious until the alll"galions 

became public in early 2011.tn In testimony before 

the Senate Judiciary Committcc, Attorney General 

Hold",r was unequivocal in his criticism of the 

oontrovc['!;ial tacties employed in Fast and Furious: 

Now [ want to be very dear, any instance 

, "'Th"'#I'!'l"\lIiI'd --' never htIlle 

ha11P'rreri and 

It must rJIlver 

hllpp.n again." ...... ,,~ 

ff<>W" 

of so called gunwalking is simply unacreptable. 

Regrettably Ihis tactic was used as part of Fasl and FuriOUS whidl was 

launched to combat gun trafficking and violence on our Southwest 

border. 

This operation ..... as flawed in its concept and flawed in its execution, 

and unforhmatcly we will feel the effects for years to come as guns that 

were lost during this operation continue to show up at crime scenes 

.. ,. 
203 


74504C1-55.eps

both here and in Mexico. This should never have happened and it 

must never happen again.!" 

Testifying before the House Judiciary Committee, the Attorney General 

rejected the allegation that senior leaders at the Department of Justice approved of 

gunwalking in Operation Fast and Furious: 

I mean, the notion that people in the-in Washington, the leadership of 

the Department approved the use of those tactics in Fast and Furious is 

simply incorrect. This was not a top-to-bottom operation. This was 

a regional operation that was controlled by ATF and by the U.S. 

Attorney's Office in Phoenix.174 

The Committee has obtained no evidence indicating that the Attorney General 

authorized gunwalking or that he was aware of such allegations before they became 

public. None of the 22 witnesses interviewed by the Committee claims to have 

spoken with the Attorney General about the specific tactics employed in Operation 

Fast and FurioLis prior to the public controversy. 

To the contrary, the evidence received by the Committee supports the 

Attorney General's assertion that the gunwalking tactics in Operation Fast and 

Furious were developed in the field. The leaders of the two components with 

management responsibility for Operation Fast and Furious-ATF and the u.s. 

Attorney's Office-informed the Committee that they themselves were not aware of 

the controversial tactics used in Operation Fast and Furious and did not brief anyone 

at Justice Department headquarters about them. Similarly, the Attorney General's 

key sLibordinates-the Deputy Attorney General and the Assistant Attorney General 

for the Criminal Division-informed the Committee that they were never briefed on 

the tactics by ATF or the U.S. Attorney's Office and never raised concerns about the 

operation to the Attorney General. 

In 2010, the Office of the Attorney General received six reports from the 

National Drug Intelligence Center that contained a brief, one paragraph overview of 

Operation Fast and Furious. None of the information in the documents discussed 

the controversial tactics used by ATF agents in the case. One typical paragraph read: 

From August 2 through August 6, the National Drug Intelligence 

Center Document and Ivfedia Exploitation Team at the Phoenix 

Organized Crime Drug Enforcement Task Force (OCDETF) Strike 

Force will ~upport the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives' Phoenix Field Division with its investigation of Manuel 

Celis-Acosta as part of OCDETF Operation Fast and the Furious. This 

investigation, initiated in September 2009 in conjunction with the Drug 

Enforcement Administration, Immigration and Customs Enforcement, 

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and the Phoenix Police Department, involves a Phoenix-based firearms 

trafficking ring headed by Manuel Celis-Acosta. Celis-Acosta and 

[redacted] straw purchasers are responsible for the purchase of 1,500 

firearms that were then supplied to Mexican drug trafficking cartels. 

They also have direct ties to the Sinaloa Cartel which is suspected 

of providing $1 million for the purchase of firearms in the greater 

Phoenix area.'75 

In his October 7, 2011, letter, the Attorney General explained that he never 

reviewed the reports and that his staff typically reviews these reports. He also 

testified that even if he had reviewed them personally, they did not indicate 

anything problematic about the case because "the entries suggest active law 

enforcement action being taken to combat a firearms trafficking organization that 

was moving weapons to Mexico."'76 

Documents provided to the Committee indicate that in December 2010, the 

Arizona U.S. Attorney's Office was preparing to inform the Attorney General's Office 

about the general status of upcoming indictments in Operation Wide Receiver when 

news of Agent Terry's death broke. 

On December 14, 2010, Monty Wilkinson, the Attorney General's Deputy 

Chief of Staff, sent an email to U.S. Attorney Burke asking if he was available for 

a call that day.177 The next day; u.S. Attorney Burke replied, apologized for not 

responding sooner, and said he would call later in the dayY' He also stated that the 

U.S. Attorney's Office had a large firearms trafficking case he wanted to discuss that 

was set to be indicted in the coming weeks.179 

Several hours later on December 15, 2010, U.S. Attornev Burke learned that 

Agent Terry had been murdered. IBo He alerted Mr. Wilkinsor\ who replied, "Tragic, 

I've alerted the AG, the Acting DAG, Lisa, etc."'81 

Later that same day, U.s. Attorney Burke learned that two firearms found 

at Agent Terry's murder scene had been purchased by a suspect in Operation Fast 

and Furious. He sent an email to Mr, Wilkinson forwarding this information and 

wrote: "The guns found in the desert near the murder [sic] BP officer connect back 

to the investigation we were going to talk about-they were AK-47's purchased at a 

Phoenix gun store."'B2 Mr. Wilkinson replied, ''I'll call tomorrow."'83 

In his interview with Committee staff, U.S. Attorney Burke stated that he did 

not recall having any subsequent conversation with Mr. Wilkinson that "included 

the fact that Fast and Furious guns were found at the scene" of Agent Terry's 

murder. 1M In a November 2011 hearing of the Senate Judiciary Committee, Senator 

Charles Grassley asked Attorney General Holder, "Did Mr. Wilkinson say anything 

to you about the connection between Agent Terry's death and the ATF operation?" 

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Attorney General Holder responded, "No, he. did not.~' 11\ In a January 27, 2011, 

letter to the Committee, the Department sta ted that Mr. Wilkinson "does not recall a 

follow-up call with Burke or discussing this aspect of the matter with the Attorney Gene.ratff'!IO ,,,,-________ ... 

I would halle 

stopped I~" 

Deputy Attorney General GrindJer 

During his interview with Committee 

staff, Cary Crindler, the former Acting Deputy 

Attorney General stated ihat he was not aware of 

the controversial tactics that ATF-Phocnix employed in 

-{Ilrt/t8t' DepuJ)! dltOMey 

fiMftpl G~/ndktt 

Operation Fast and Furious, never authorized them, and never briefed anyone at the 

Department of rusHee about them.'17 

In March 2010, Acting ATF Director Melson and Deputy Director Hoover met 

with Mr. Grindler for a monthly check-iJl cneeting and shared information about 

Operation Fast and Furious and other matters. As part of this briefing, Mr. Melson 

and Mr. Hoover stated that they discussed the total number of firea rms purchased 

by individual suspects in Ope.ralion Fa~t and Furious, the total amount of money 

spent on purchaSing these firearms, and a map d isplaying seizure events for the caS!'" 

in both the United States and Mexico.'" 

Mr. Grindler stated that neither of ATF's senior leaders raised any concerns 

with him about Opt'ratlon Fast and Furious at tha t briefing or mentioned 

gunwalking; 

Q: And to your recollection, did Director Melson or Deputy 

Director Hoover ever tell you that they were deliberately 

allowing firearms to be transferred to Mexico in order to use 

them as a predicatc for cases in the United States? 

A: I mean, I am extraordin;uily confident that they didn't tell 

me that. That is just an absurd concept. If that had been told 

to me, I would not only have written something, but donc 

something about it. 

Q: What would YOll have done? 

A: I would have stopped it. I wou ld have asked for detailed 

briefings about this matter and figure out more dearly 

what's going on hel"C.'" 

Deputy Director Hoover conoborated Mr. Grindler's account. In his 

interview with the Committee, Mr. Hoover explained that he did not inform the 

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Deputy Attorney General about gunwalking in Operation Fast and Furious because 

he did not know about it himself: 

A: Well, there's been reports that the Deputy Attorney General's 

office was aware of the techniques being employed in Fast 

and Furious, and that's not the case, because I certainly 

didn't brief them on the techniques being employed in Fast 

and Furious. 

Q: Because you didn't know? 

A: Right.lOO 

When asked whether he ever discussed his briefing on Operation Fast and 

Furious with the Attorney General, Mr. Grindler said, "1 don't have any recollection 

of advising the Attorney General about this briefing in 2010."191 

Ading ATF Director Melson 

In an interview with Committee staff on July 4, 2011, then-Acting ATF 

Director Kenneth Melson stated that he was not aware of the controversial tactics 

that the ATF-Phoenix Field Division employed, never authorized them, and never 

briefed anyone at the Department of Justice about them. Mr. Melson stated: 

I don't believe that I knew or that [Deputy Director] Billy Hoover 

knew that they were-that the strategy in the case was to watch 

people buy the guns and not interdict them at some point. That issue 

had never been raised. It had never been raised to our level by the 

whistleblowers in Phoenix-that stayed in-house down there. The 

issue was never raised to us by ASAC [Assistant Special Agent in 

Charge 1 Gillett who was supervising the case. 

It unfortunately was never raised to my level by SAC [Special Agent in 

Charge] Newell who should have known about the case, if he didn't, 

and recognize the issue that was percolating in his division about the 

disagreement as to how this was occurring. Nor was it raised to my 

level by DAD [Deputy Assistant Director] McMahon who received the 

briefing papers from [Phoenix Group Supervisor] Voth and may have 

had other information on the case. Nor was it given to me by a Deputy 

Assistant Director in OSH, the inte! function, when he briefed this case 

the one time I wasn't there and he raised an objection to it and saw 

nothing change. lo2 

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Director Melson also denied that Department of Justice or senior ATF officials 

devised or authorized those tactics: 

Q: Did you ever use or authorize agents to use a tactic of nonintervention to see where the guns might go? 

A: I don't believe I did. 

Q: Did you ever tell agents not to use or authorize agents not 

to use other common investigative techniques like "knock 

and talks" or police pullovers in order to see where the guns 

might go in this case? 

A: No. 

Q: Did anyone at the Department of Justice ever tell you or 

tell anyone else at headquarters and it got to you that those 

tactics were authorized as part of a new strategy in order to 

follow the guns, let the guns go, see where they might end 

up? 

A: No.l93 

Documents obtained by the Committee indicate that Mr. Melson received 

three briefings regarding Fast and Furious in the early months of the operation 

and had regular status updates thereafter. He stated that "the general assumption 

among the people that were briefed on this case was that this was like any other 

case that ATF has done."J94 In addition to stating that he was not aware of the 

controversial tactics in Operation Fast and Furious, Mr. Melson stated that he did 

not know the full scope or scale of criminal activity by suspects until after concerns 

about gunwalking became public. 

After the public controversy broke, Mr. Melson requested copies of Operation 

Fast and Furious case files to review for himself. He told Committee staff that he 

became extremely concerned after reviewing them: 

I think I became fully aware of what was going on in Fast and Furious 

when I was reading the ROIs. And I remember sitting at my kitchen 

table reading the ROIs, one after another after another, I had pulled out 

all Patino's-and ROIs is, I'm sorry; report of investigation-and you 

know, my stomach being in knots reading the number of times he went 

in and the amount of guns that he bought. 

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And this is why I wish the people in Phoenix had alerted us during 

this transaction to exactly this issue, so we could have had at least 

made a judgment as to whether or not this could continue or not.'95 

ATF Deputy Director Hoover 

During his interview with Committee staff, then-Deputy Director William 

Hoover stated that he had not been aware of the tactical details in Operation Fast 

and Furious and had not raised any concerns with Acting ATF Director Melson or 

anyone at Justice Department headquarters.196 Deputy Director Hoover rejected 

the suggestion that senior management officials at ATF or the Department of Justice 

were responsible for any of the controversial tactical decisions made in Operation 

Fast and Furious: 

Q: But you don't believe that this is some sort of top-down - it 

wasn't a policy or some tactical strategy from either ATF 

management or main Justice to engage in what happened 

here in Phoenix in Fast and Furious? 

A: No, sir. It's my firm belief that the strategic and tactical 

decisions made in this investigation were born and raised 

with the U.s. Attorney's Office and with ATF and the 

OCDETF strike force in Phoenix.'97 

Mr. Hoover's subordinates also informed the Committee that they did not 

warn him about gunwalking allegations in Operation Fast and Furious because they 

were unaware of them. Assistant Director for Field Operations Mark Chait told the 

Committee that he was "surprised" when he learned of allegations that gunwalking 

occurred in Operation Fast and Furious in February 2011.198 Deputy Assistant 

Director for Field Operations William McMahon, the supervisor above the Phoenix 

Field Division, stated: 

I don't think at any point did we allow guns to just go into somebody's 

hands and walk across the border. I think decisions were made to 

allow people to continue buying weapons that we suspected were 

going to Mexico to put our case together. But 1 don't believe that at any 

point we watched guns going into Mexico. I think we did everything 

we could to try to stop them from going to Mexico}" 

Although Mr. Hoover stated that he was unaware of gunwlking allegations in 

Operation Fast and Furious prior to the public controversy, he informed Committee 

staff that he became concerned in March 2010 about the number of guns being 

purchased.'oo As discussed above, Mr. Hoover received a briefing in March 2010 

during which ATF officials described the suspects, the number of firearms, the 

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amount of money each had spent, known stash houses, and the locations where 

firearms had been recovered. Mr. Hoover told the Committee that he ordered an 

"exit strategy" to dose the case and seek indictments within 90 days. 

Apart from whether Mr. Hoover was aware of specific gunwalking allegations 

in Operation Fast and Furious, it remains unclear why he failed to inform Acting 

ATF Director Melson or senior Justice Department officials about his more general 

concerns with the investigation or his directive for an exit strategy. 

During his interview with Commi ttee staff, Deputy Director Hoover took 

substantial personal responsibility for ATF's actions in Operation Fast and Furious. 

He stated: 

I blame no one else. I blame no one else - not DEA, not the FBI, not the 

U.s. Attorney's Office. If we had challenges, then we need to correct 

those challenges. I am the deputy director at ATF, and, ultimately, you 

know, everything Haws up, and I have to take responsibility for the 

mistakes that we made.,ol 

United States Attorney Burke 

During an interview with Committee staff, Arizona U.s. Attorney Dennis 

Burke stated that neither he nor anyone above him ever authorized non-interdiction 

of weapons or letting guns walk in Operation Fast and Furious: 

Q:. To your knowledge as the U.s. Attorney for the District of 

Arizona, did the highest levels of the Department of Justice 

authorize [the 1 non-interdiction of weapons, cutting off of 

surveillance, as an investigative tactic in Operation Fast and 

Furious? 

A: I have no knowledge of that. 

Q: Do you believe you would have known if that was the case? 

A: Yes. 

Q: Did you ever authorize those tactics? 

A: No. 

Q: Did anyone ever discuss-from the Department of Justice 

main headquarters-your supervisors-ever discuss with 

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you or raise to your attention that there was a new policy 

with respect to interdiction of weapons or surveillance of 

firearms? 

A: No. Not that I can recall at all. 

Q: And did anyone ever-from the Department of Justice, Main 

Justice I will call it, ever tell you that you were authorized 

to allow weapons to cross the border when you otherwise 

would have had a legal authority to seize or interdict them 

because they were a suspected straw purchase or it was 

suspected that they were being trafficked in a firearms 

scheme? 

A: 1 have no recollection of ever being told that.202 

Although U.s. Attorney Burke agreed with ATF-Phoenix's proposal to build a 

"bigger" case that targeted the organizers of the firearms trafficking conspiracy, he 

stated that ATF-Phoenix never indicated that agents would be letting guns walk as 

part of the investigation: 

Q: Did you ever discuss with him [Special Agent in Charge 

Newell] a deliberate tactic of non-interdiction to see where 

the weapons ended up? To see if they ended up with the 

DTO in Mexico? 

A: I do not recall that at alL 

Q: Would that stick out in your mind at this point if he had said 

we're going to let the guns go, find them in crime scenes in 

Mexico, and then use that to make a connection to a DIO? 

A; I don't recall that at all. I was under the opposite impression, 

which was that based on his contacts and the relationships 

with Mexico and what they were doing, that they would be 

working with Mexico on weapons transferred into Mexico.20' 

Emails from Special Agent in Charge Newell touting recent seizures of 

firearms in both the United States and in Mexico are consistent with U.s. Attorney 

Burke's statement that he believed ATF-Phoenix was coordinating interdiction with 

appropriate law enforcement agencies on both sides of the border. For example, on 

June 24, 2010, Mr. Newell sent an email to Mr. Burke with a picture of a .50 caliber 

weapon that had been recovered, stating: "Never ends ... our folks are working nonstop around the clock 7 days a week. But they are making some great seizures and 

gleaning some great Intel."20' 

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The lead prosec;utor on the case, Emory Hurley, sent Mr, Burke similar 

updates. On August 16, 2010, for example, Mr. Hurley prepared a memorandum 

asserting that uthe investigation has inrerdicted approximately 200 firearms, 

including two.50 caliber rifles ~ and stating. uraJgents have not purposely let guns 

'walk."'lIII 

Criminal Division review of Fast and Furious wiretap applications 

In testimony before a Sum:ommittee of the Senate Judiciary Committee on 

November 1, 2011, Assistant Attorney General Lanny Breuer stated that he first 

became aware of the oontroversial tactics in Operation Fast and Furimls after they 

became public 

I found out fif!it WhL'!l the public disclosure was made by the ATF 

agents early this year. When they started making those public 

statements. of COUlSl', at that point, as you know, both the h~adership of 

ATF and the leadership of the U.s. Attorney's Offices adamantly said 

that those allegations were wrong. 

But as those allegations became dear, that is when I first learned that 

guns that could-that ATF had both the ability to interdict and the 

legal authority to interdict, that they failed to do so. That is when I 

first learned that, Scna.tor.!!16 

Similarly, in an interview with COmmittL't.' staff, Deputy Assistant Attorney 

General Jason Weinstein stated: 

I did not know at any time during the investigation , 

of Fast and Furiou£ that guns had walked during 

that investigation- I first heard of possible 

gunwalking in Fast and FuriQu£ when the 

whistleblower allegations were made publie in 

eady 2011. HOld I known about gunwalking in Fast 

and Furious before the allegations became public, I 

would have sounded the alarm about it.w 

I would have 

sounded the 

alarm" 

·.At.i'i.tkmt Attorn~ 

Glll/lfn,' Breuer 

Mr. Breuer and Mr. Weinstein also rejected the allegation that they should 

have been able to identify gunwillking in Operation Fast and Furious based on the 

Criminal Division's legal reviews of wiretap applicatiOns submitted by the Arizona 

U.S. Attorney's Office. 

Federal law n.'quires that SCflior Department officials approve all Federal 

law enforcement applications to Federal judges for the authority to ronduct 

wiretaps.l<I& The Department has assigned that legal review duty to the Office of 

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Enforcement Operations in the Criminal Division.Nt Ouring Opera tion Fast and 

Furious, numerous wiretd p applications were submitl(>d to the Criminal Division to 

determine whether they satisfied the legal threshold established under the FoW"th 

Amendment to the United. States Constitution. Drafts of the applications were 

sent to the Office of Enforcement Operations, which prepared cover memos for 

final review and approval by a Deputy Assistant Attorney Gene aP'~ The wiretap 

applications are under court seal and therefore have not been produced to the 

Committee. 

Mr. Weinstein informed the Committee that he reviewed. the rover 

memoranda prepared by the Office of Enforrement {)pt!ratioru:; for three wiretap 

applications in Operation Fast and Furious and thai he approved all three.lIl He 

stated that his generaJ practice was to .read the cover memo first and examine the 

underlying affidavit only if there were issues or questions necessary to the probable 

cause determination that the summary memo did nol provide.

lI2 Mr. Weinstein 

stated that he believed his practice was consistent with the condud; across various 

administrations.lIl 

Mr. Weinstein rejected the criticism that he should have identified 

gunwalking in Operation Fast and Furious based on his review of the memoranda 

summarizing the wiretap affidavits in the case. Although he could not romment 

on the oont£'l1ts of the documents- because they arc under seal by a Federal Di~trict 

Court judge, he stated: 

It's not a fair criticism. As I said earlier, I 

can't comment on the contents. What I can 

say is I obviously have a sensitive radar to 

gunwalking, since that's been the f(lcu s of my 

life, my professional life, is keeping guns out 

of the hands of criminals. So when I saw in 

Wide Receiver that an invc.~tigation, howe\'er 

well intentioned it may have been, Wall being 

ronducted in a way that put guns in the 

hands of criminals, I reacted pretty strongly 

to it. Had I seen anything at any time during 

the investigation of Fast and Furious that 

The ~--. foells of my 

raised the same concerns, I would have reacted. 

/lfe, my professionaillfe, is keepIrIB guns out of 

tho hands a! 

crimrna.ls." 

-Ucputy .,u,.IStun,[ dtwmcy 

Gf:rreralWc:lII.ffCllf 

And I would have reacted even more strongly because that would 

have meant it was still going on and that Wide Receiver was not in fact 

an isolated incidence as I believed it 10 be.no 

In testimony before the Scl'1atc Judiciary Committee, Mr. Breuer made dear 

that his staff reviews wiretap affidavits to determine the legal sufficiency of the 

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request rather than to conduct oversight of investigative tactics in law enforcement 

investigations. He stated: 

fA]s Congress made dear, the role of the reviewers and the role of the 

deputy in reviewing Title III applications is only one. It is to ensure 

that there is legal sufficiency to make an application to go up on a wire 

and legal sufficiency to petition a Federal judge somewhere in the 

United States that we believe it is a credible request. But we cannotthose now 22 lawyers that I have who review this in Washington, and 

it used to only be 7, cannot and should not replace their judgment, nor 

can they; with the thousands of prosecutors and agents all over the 

country. 

Theirs is a legal analysiS: Is there a sufficient basis to make this 

request? We must and have to rely on the prosecutors and their 

supervisors and the agents and their supervisors all over the country 

to determine that the tactics that are used are appropriate.215 

Criminal Division response to Wide Receiver 

Questions have been raised about whether Mr. Breuer or Mr. Weinstein 

should have been aware of gunwalking in Operation Fast and Furious because 

they learned about similar tactics in a different case dating back to 2006 and 2007, 

Operation Wide Receiver. Documents obtained by the Committee indicate that as 

soon as they learned about gunwalking during the previous Administration, Mr. 

Breuer and Mr. Weinstein took immediate steps to register their concerns directly 

with the highest levels of ATF leadership, but they did not inform the Attorney 

General or the Deputy Attorney GeneraL 

In March 2010, a Criminal Division supervisor sent an email to Mr. Weinstein 

regarding the Wide Receiver case stating that, "with the help of a cooperating 

FFL, the operation has monitored the sale of over 450 weapons since 2006."216 In 

response, Mr. Weinstein expressed concern, writing: ''I'm looking forward to 

reading the pros[ecution] memo on Wide Receiver but am curious-did ATF allow 

the guns to walk, or did ATF learn about the volume of guns after the FFL began 

cooperating?,,21? The supervisor inaccurately responded: "My recollection is 

they learned afterward:'218 As discussed above, ATF Operational Plans and other 

documents provided to the Committee show that ATF agents in Arizona were 

contemporaneously aware of the illegal straw purchases. 

The next month, Mr. Weinstein received and reviewed a copy of the 

prosecution memorandum prepared by the criminal prosecutor in the Wide Receiver 

case.'" On April 12, 2010, Mr. Weinstein wrote to the prosecutors stating: 

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ATF HQ should/will be embarrassed that they let this many guns 

walk-I'm stunned, based on what we've had to do to make sure not 

even a single operable weapon walked in UC [undercover] operations 

I've been involved in planning-and there will be press about that,220 

In his interview with Committee staff, Mr. Weinstein explained that "there 

was no question from the moment those sales were completed that ATF had a lot 

of evidence that those sales were illegal. That's pretty rare. And it's that specific 

fact that set me off on Wide Receiver."221 He also stated that the gunwalking tactics 

used in Wide Receiver "were unlike anything I had encountered in my career as a 

prosecutor."222 As a former prosecutor in the u.s. Attorney's Office in Baltimore, he 

added: 

One of my priorities in all of the work I did in Maryland was to 

stop guns from getting to criminals and get guns out of the hands of 

criminals who managed to get their hands on them. But I was very 

sensitive about any sihlation or any operation that might result in law 

enforcement, however inadvertently, putting a gun into the hands of a 

criminal. And so all of the operations that I participated in designing, 

and I referred to this in the email, were designed to make sure that not 

even a single operable weapon got in the hands of a criminal.223 

After reading the prosecution memorandum, Mr. Weinstein contacted 

his supervisor, Assistant Attorney General Breuer. On April 19, 2010, they met 

to discuss Mr. Weinstein's concerns about ATF-Phoenix's handling of the case. 224 

According to Mr. Weinstein, Mr. Breuer shared his shock about the gunwalking 

tactics used in Wide Receiver: 

[T]here's no question in my mind from his reaction at the meeting 

that Mr. Breuer shared the same concerns that I did. As I indicated in 

my opening, Mr. Breuer has made helping Mexico and stopping guns 

from getting to Mexico a top priority. I had commented to somebody 

in my office that I traded when I carne from Baltimore to the Criminal 

Division, I traded having a boss come into my office every day and 

ask me what am I doing to keep the murder rate down, to a boss 

who is asking me virtually every day, what am I doing to stop guns 

from going to Mexico? So when he heard about this he had the same 

reaction I did.225 

According to Mr. Weinstein, Mr. Breuer directed him to immediately register 

their concerns "directly with the leadership of ATF.'",6 The next day, Mr. Weinstein 

contacted ATF Deputy Director Hoover to request a meeting.217 On April 28, 2010, 

Mr. Weinstein and Mr. Hoover met and were joined by the Acting Chief of the 

Organized Crime and Gang Section at DOJ, James Trusty and ATF Deputy Assistant 

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Director William McMahon.22B Mr, Weinstein told the Committee that he expressed 

his serious concerns abuut ATF-Phoenix's management of Wide Receiver and the 

fact that so many firearms had been allowed to walk. Notes taken at that meeting 

indicate that of 183 guns sold in the first part of Operation Wide Receiver, the "vast 

majority walk[ed]" and were linked to "violent crime."229 Mr, Weinstein stated: 

[AJt the meeting the first topic on the agenda was to talk about the 

tactics. And so Mr, Trusty and I went through the facts of the case and 

I explained my concerns about the tactics. The meeting was nearly 

2 years ago now, and as I sit here today I just can't recall the specific 

words used, but my strong memory from that meeting is that Mr. 

Hoover had the same reaction I did; that is, that he shared my concerns 

about the tactics. And I walked away from that meeting being satisfied 

that although this had happened in '06 and '07, this was not the kind 

of thing that would be happening under Mr. Hoover's watch. I wish 

I could remember the exact words used, but that's the strong sense I 

walked away with. 230 

Although neither Mr. Breuer nor Mr. Weinstein had direct supervisory 

authority over ATF, Mr. Weinstein told the Committee that the seriousness of issue 

compelled them to request the meeting, Mr. Weinstein stated: 

I raised this with Mr, Hoover because I knew it was something he 

would be concerned about, and he was concerned about it. I didn't 

direct him. It's not my place to direct him. I didn't ask him to do 

anything in particular. His reaction, as I said, was exactly what I 

expected, which was concern about the tactics. And so I just walked 

away" I walked away feeling there was no reason to worry that this 

was the kind of thing that he would tolerate.231 

Mr. Weinstein stated that he relayed the details of the meeting to Mr. Breuer, 

and at that time both of them believed that they had satisfied their duty to address 

the issue with the appropriate managers.232 Mr. Weinstein also noted that he 

believed the gunwalking in Wide Receiver was an "extreme aberration from years 

ago."'33 

Despite raising these concerns about gunwalking in Operation Wide Receiver 

immediately with senior ATF leadership, Mr. Breuer later expressed regret for 

not raising these concerns directly with the Attorney General or Deputy Attorney 

General. During an exchange at a hearing with Senator Grassley, Mr, Breuer stated: 

I regret the fact that in April of 2010, I did not. At the time, I thought 

that we- dealing with the leadership of ATF was sufficient and 

reasonable. And frankly, given the amount of work I do, at the time, 

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I thought that that was the appropriate way of dealing with it. But I 

cannot be more clear that knowing now-if I had known then what 1 

know now, I. of course, would have told the Deputy and the Attorney 

General.234 

Criminal Division interactions with Mexican Officials 

According to documents obtained by the Committee, Assistant Attorney 

General Breuer met with senior officials from the Mexican government in Mexico 

on February 2, 2011, to discuss potential areas of cooperation to fight transnational 

organized crime and drug trafficking.235 According to a summary, the group 

discussed a wide range of issues including U.S. extradition requests to Mexico, 

firearms trafficking, and a cooperative security agreement between the United 

States, Mexico, and countries in Central America.23• 

With respect to combating firearms trafficking, the Mexican Undersecretary 

for North America explained that "greater coordination and flow of information 

would be helpful to combat arms trafficking into Mexico."237 Mr. Breuer responded 

by telling the Mexican officials that the Department had sought to increase penalties 

for straw purchasers and desired their support for such measures. According to the 

summary, Mr. Breuer also made a suggestion about one way the two countries could 

increase coordination: 

AAG Breuer suggested allowing straw purchasers cross into Mexico 

so SSP [Mexican federal police force] can arrest and PGR [the 

Mexican Attorney General's Office] can prosecute and convict. Such 

coordinated operations between the US and Mexico may send a strong 

message to arms traffickers 238 

Documents produced to the Committee indicate that this summary of Mr. 

Breuer's meeting was shared with Acting ATF Director Melson in anticipation of 

his February 8, 2011, meeting with the U.s. Ambassador to Mexico?" According 

to a summary of this latter meeting, Mr. Melson discussed with the Ambassador 

the possibility of controlled firearms deliveries, but the Department of Justice 

Attache who was also present raised concern about the "inherent risk" of such joint 

operations: 

Melson and the Ambassador discussed the possibility of allowing 

weapons to pass from the US to Mexico and US law enforcement 

coordinating with SSP and PGR to arrest and prosecute the arms 

trafficker. I raised the issue that there is an inherent risk in allowing 

weapons to pass from the US to Mexico; the possibility of the GoM 

[Government of Mexico] not seizing the weapons; and the weapons 

being used to commit a crime in Mexico.240 

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The documents obtained by the Committee do not indicate that any action 

was taken after this meeting regarding efforts to coordinate operations with Mexican 

authorities. 

As described in the section above on the Hernandez case, the memo prepared 

for Attorney General Mukasey in 2007 similarly explained that "ATF would like to 

expand the possibility of such joint investigations and controlled deliveries-since 

only then will it be possible to investigate an entire smuggling network, rather than 

arresting simply a single smuggler.241 The memo provided to Attorney General 

Mukasey was explicit, however, in warning that previous operations "have not been 

successful." 242 

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D. DEPARTMENT RESPONSES TO GUNWALKING 

IN OPERATION FAST AND FURIOUS 

Inaccurate information initially provided to Congress 

On January 27, 2011, Senator Charles Grassley wrote a letter to the 

Department of Justice relaying allegations from whistleblowers that ATF-Phoenix 

had walked guns in Operation Fast and Furious.2

• 3 On February 4, 2011, Ron Weich, 

the Assistant Attorney General for Legislative Affairs, sent a written response that 

stated: 

[T]he allegation described in your January 27 letter-that ATF 

"sanctioned or otherwise knowingly allowed the sale of assault 

weapons to a straw purchaser who then transported them into 

Mexico" -is false, ATF makes every effort to interdict weapons that 

have been purchased illegally and prevent their transportation to 

Mexico.244 

As this report documents, it became apparent during the course of the 

Committee's investigation that this statement in the Department's letter was 

inaccurate and, on December 2, 2011, the Deputy Attorney General formally 

withdrew the Department's February 4th letter.''' On the same day, the Department 

provided the Committee with more than 1,000 pages of internal emails, notes, and 

drafts from all of the parties involved in the drafting of the February 4 letter, as well 

as a lengthy explanation of how the inaccurate information was included in the 

letter. According to the Department: 

Department personnel, primarily in the Office of Legislative Affairs, 

the Criminal Division and the Office of the Deputy Attorney General, 

relied on information provided by supervisors from the components 

in the best position to know the relevant facts: ATF and the U.S. 

Attorney's Office in Arizona, both of which had responsibility 

for Operation Fast and Furious. Information provided by those 

supervisors was inaccurate.'46 

The documents obtained by the Committee and the interviews conducted by 

Committee staff support this explanation. 

Documents obtained by the Committee indicate that, during the drafting 

of the letter, senior ATF officials insisted that ATF-Phoenix had not allowed guns 

to walk in Operation Fast and Furious. Detailed notes of a meeting with Acting 

Director Melson taken by a Department of Justice official state that AIF "didn't let 

a guns [sic] walk," and "didn't know they were straw purchasers at the time."2-l7 

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Additional notes taken of a meeting with Deputy Director Hoover state that 

"ATF doesn't let guns walk," and "we always try to interdict weapons purchased 

iIlegally."24' 

Both Acting ATF Director Melson and ATF Deputy Director Hoover told the 

Committee that they did not intend to mislead the Department or Congress and that 

they sincerely believed that guns had not walked in Operation Fast and Furious at 

the time the letter was drafted. 24' 

The u.s. Attorney's Office in Arizona also adamantly denied allegations of 

gunwalking. On January 31, 2011, U.S. Attorney Burke wrote to senior Department 

officials that the allegations "are based on categorical falsehoods."20" Mr. Burke and 

the Chief of the Criminal Division at the u.s. Attorney's Office sent a series of emails 

over the course of that week continuing to deny the allegations and pressing for a 

strong response.251 

In his interview with Committee staff, U.S. Attorney Burke stated that, after 

later learning about the scope of glillwalking in Operation Fast and Furious, he 

deeply regretted conveying "inaccurate" information to senior Department officials 

drafting the February 4 response, but that it "was not intentionaL"25> 

The Committee was not able to interview one witness from the U.S. Attorney's 

Office, the former Criminal Chief, Patrick Curmingham. In a letter on January 19, 

2011, Mr. Cunningham's attorney informed the Committee that he was exercising his 

Fifth Amendment right against self-incrimination. The letter stated: 

I am writing to advise you that my client is going to assert his 

constitutional privilege not to be compelled to be a witness against 

himself. The Supreme Court has held that "one of the basic functions 

of the privilege is to protect innocent men." Grunewald v. United States, 

353 U.s. 391,421 (1957); see also Ohio v. Reiner, 532 U.s.17 (2001) (per 

curiam). The evidence described above shows that my client is, in fact, 

innocent, but he has been ensnared by the unfortunate circumstances 

in which he now stands between two branches of government. I will 

therefore be instructing him to assert his constitutional privilege.253 

During his interview with Committee staff, U.S. Attorney Burke stated that 

Mr. Cunningham adamantly denied that gunwalking occurred in Operation Fast 

and Furious.'54 Similarly, Deputy Assistant Attorney General Weinstein informed 

Committee staff that Mr. Cunningham continued to assert that gunwalking had not 

occurred in Operation Fast and Furious after the February 4, 2011, letter.255 

Within the Criminal Division, Mr. Weinstein informed the Committee that he 

offered to assist in the drafting of the February 4 letter "to be helpful;" but that he 

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had no independent knowledge of Operation Fast and Furious and relied on ATF 

and the U.S. Attorney"s Office for information. He stated: 

As the Department prepared its response, I and others in Main Justice 

were repeatedly and emphatically assured by supervisors in the 

relevant components who were in position to know the case best-that 

is the Arizona U.S. Attorney's Office and ATF leadership-that no guns 

had been allowed to walk in connection with Fast and Furious; and it 

was on that basis that the Department provided inaccurate information 

to Congress in the February 4th letter. 

Now much attention has been paid to the sentence in that letter that 

reads, "ATF makes every effort to interdict weapons that have been 

purchased illegally and prevent their transportation to Mexico." As 

the documents you've received made clear, I and others at Main Justice 

received multiple assurances from the U.s. Attorney"s Office and from 

ATF that this statement, like the other information in the letter, was 

true .... 

Given what I know now, of course, I wish I had not placed such faith in 

the assurances provided to me by the leadership of the U.S. Attorney"s 

Office and ATF. But given what I knew then and given the strength of 

those assurances I believed at the time that it was entirely appropriate 

to do so. I trusted what was said to me and I firmly believed at that 

time that in fact ATF had not let guns walk in Fast and Furious. 

Obviously, time has revealed the statements made to me and others to 

be inaccurate, and that is beyond disappointing to me?" 

Mr. Weinstein also explained why he did not raise concerns about 

gunwalking during the previous administration in Operation Wide Receiver in 2006 

and 2007. During his interview with Committee staff, he stated: 

Now some have said that because I knew about Wide Receiver at the 

time I assisted with the February 4th letter, I knew that statement to be 

untrue, and that is just not correct. Let me explain why. 

Wide Receiver was an old case in which inappropriate tactics had 

been used in the investigative phase years earlier. This occurred 

under a prior administration, under a different U.S. Attorney's Office 

management and different ATF management. Because of the repeated 

assurances I and others received in February 2011, from the then 

current leadership of the U.s. Attorney's Office in ATF that guns had 

not walked in Fast and Furious and from ATF that it was making 

every effort to interdict guns, I did not make any connection between 

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Wide Receiver and Fast and Furious. For that reason, I simply was not 

thinking about Wide Receiver as I assisted with the February 4th letter 

which I understood to be about Fast and Furious.'57 

Mr. Weinstein also rebutted the allegation of an intentional cover-up: 

Q: Mr. Weinstein, during the drafting of the February 4th letter, 

did you intentionally try to mislead Congress? 

A: Absolutely not. 

Q: To your knowledge, did Mr. Breuer ever try to intentionally 

mislead Congress? 

A: Absolutely not. 

Q: To your knowledge, did anyone else at Main Justice, during 

the drafting of the February 4th letter, intentionally try to 

mislead Congress? 

A: Absolutely not.'" 

Request for IG investigation and reiteration of Department policy 

Soon after the Attorney General became aware of allegations relating 

to gunwalking in Operation Fast and Furious, he took several steps to address 

them. First, the Attorney General requested that the Inspector General investigate 

Operation Fast and Furious and the Department's response to Senator Grassley's 

letter.""9 Testifying before a Senate Appropriations Subcommittee, the Attorney 

General stated: 

It is true that there have been concerns expressed by ATF agents 

about the way in which this operation was conducted, and on that I 

took those allegations, those concerns, very seriously and asked the 

Inspector General to try to get to the bottom of it. An investigation, an 

inquiry is now under way. 

I've also made dear to people in the Department that letting guns 

walk-I guess that's the term that the people use-that letting guns 

walk is not something that is acceptable. Guns are-are different than 

drug cases or cases where we're trying to follow where money goes. 

We cannot have a situation where guns are allowed to walk, and I've 

made that clear to the United States Attorneys as well as the Agents in 

Charge in the various ATF offices. 260 

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On March 9, 2011, Deputy Attorney General James Cole hosted a conference 

call with Southwest Border United States Attorneys in which he reiterated the 

Department's policy against gunwalking. After the call, Mr. Cole followed up with 

an email summarizing the conversation: 

As I said on the call, to avoid any potential confusion, J want to 

reiterate the Department's policy: We should not design or conduct 

undercover operations which include guns crossing the border. If 

we have knowledge that guns are about to cross the border, we must 

take immediate action to stop the firearms from crossing the border, 

even if that prematurely terminates or otherwise jeopardizes an 

investigation.261 

Personnel actions 

Justice Department officials have explained that, although they are awaiting 

the findings from the Inspector General's investigation before making any final 

personnel determinations, they have removed the key players in Operation Fast and 

Furious from any further operational duties. 

At the U.s. Attorney's Office for the District of Arizona, all of the key 

personnel have resigned, been removed, or been relieved of their relevant duties 

in the aftermath of Operation Fast and Furious. On August 30, 2011, Dennis Burke 

resigned as the U.S. Attorney.262 In January 2012, the Chief of the Criminal Division, 

Patrick Cunningham, resigned his position and left the U.S. Attorney's Office.'63 

The Section Head responsible for supervising Operation Fast and Furious resigned 

his supervisory duties in the fall of 2011, and the Assistant U.S. Attorney who was 

responsible for managing Operation Fast and Furious was moved out of the criminal 

division to the civil division. 264 

On August 30, 2011, the Justice Department removed Kenneth Melson as the 

acting head of ATF and reassigned him to a position as a forensics advisor in the 

Department's Office of Legal POlicy.265 On October 5,2011, ATF removed Deputy 

Director William Hoover from his position and subsequently reassigned to a nonoperational role.266 Also on October 5, 2011, ATF removed Assistant Director for 

Field Operations Mark Chait from his position and subsequently placed him in 

a non-operational role as welp67 Deputy Assistant Director for Field Operations 

William McMahon was also reassigned as a Deputy Assistant in the ATF Office of 

Professional Responsibility and Security Operations on May 13,2011, and was later 

reassigned to a non-operation position.268 

ATF supervisors from the Phoenix Field Division have also been reassign~d. 

Special Agent in Charge William Newell was reas,signed to an administrative 

position as a special assistant in the ATF Office of Management.'69 Assistant Special 

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Agent in Charge George Gillett was reassigned as a liaison to the US. Marsha 1'5 

Service.270 The former Supervisor of Group VII, David Voth, was reassigned to ATF's 

Tobacco Division.271 

Agency reforms 

On January 28, 2011, Deputy Attorney General James Cole sent a letter to 

Congress explaining that the Department was "undertaking key enhancements to 

existing Department policies and procedures to ensure that mistakes like those that 

occurred in Wide Receiver and Fast and Furious are not repeated."272 The letter 

detailed numerous reforms, induding: 

Implementing a new Monitored Case Program to increase coordination 

between ATF headquarters and the field for sensitive investigations 

and to improve oversight; 

Clarifying the prohibition on gunwalking and providing guidance on 

responding to a gun dealer concerns about suspicious purchasers; 

Revising ATF's Confidential Informants Usage Policy and its 

Undercover Operations Policy and establishing committees on 

undercover operations and confidential informants; 

Providing training to personnel in ATF's Phoenix Field Division to 

address U.s.-Mexico cross-border firearms trafficking issues, improve 

techniques and strategies, and educate agents on the applicable law; 

and 

Restructuring ATF's Office of the Ombudsman by appointing a senior 

special agent as Chief ATF Ombudsman and adding a full-time special 

agent to handle agent complaints.273 

Deputy Attorney General Cole also outlined key improvements to ensure 

the "accuracy and completeness" of the information the Department provides to 

Congress. The Department issued a directive requiring the responding component 

to ensure that it supplies Congress with the most accurate information by soliciting 

information from employees with detailed personal knowledge of the relevant 

subject matter. Ultimate responsibility for submitting or reviewing a draft 

response to Congress is assigned to an appropriate senior manager, according to 

the new directive. Finally, the directive emphasizes the importance of accuracy 

and completeness of the information provided to Congress over the timeliness of 

responding to requestsP4 

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NS 

As its title indicates, the Committee on Oversight and Government Reform 

has two primary missions. Not only is it charged with conducting oversight of 

programs to root out waste, fraud, and abuse, but it is also responsible for reforming 

these programs to ensure that government works morc effectively and efficiently 

for the American people. For these reasons, set forth below are ten constructive 

recommendations intended to address operational problems identified during the 

course of this investigation. 

These recommendations for both Executive and Congressional action are 

not intended to be comprehensive or exhaustive, and some already may be under 

consideration or in various stages of implementation at the Department of Justice 

andATF. 

Strictly Enfmce the Prohibition on Gunwalking Across law Enforcement 

Agencies. Documents obtained by the Committee indicate that ATF lacked 

sufficient clarity regarding its operational policies and training for firearms 

trafficking cases. Following the public controversy over Fast and Furious, 

Acting ATF Director B. Todd Jones issued a memo strongly stating tl1e 

Department's policy against gunwalking, and the Attorney General has used 

his position to publicly reiterate this prohibition. These measures should 

be complemented by efforts within each Federal law enforcement agency to 

establish clear operational policies with respect to suspect firearms transfers 

and provide appropriate training for field agents and supervisors. 

Improve Management and Oversigbt of ATF Trafficking 

Documents obtained by the Committee reveal a lack of adequate 

communication between ATF field offices and headquarters about significant 

trafficking investigations. In several cases, deficient communication was 

magnified by disagreements between the field and headquarters about tactics 

and strategy. ATF should improve its management of investigations by 

requiring operational approval of all significant gun trafficking investigations 

by senior ATF officials in order to ensure consistent application of ATF 

policies and procedures. 

Require "Operational Safely Strategy" in Trafficking Investigations. As 

part of its broader effort to improve management and oversight of significant 

trafficking investigations, ATF should require that each Operational Plan 

developed in the field include an Operational Safety Strategy that analyzes 

the risks to agents and the public of firearms potentially being released into 

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the community and sets forth appropriate operational safeguards. Senior 

ATF officials should approve these plans in order to ensure that each specific 

operation has sufficient resources to implement the safeguards intended to 

protect agent and public safety. 

Enhance the Accessibility and Responsiveness of the ATF Ombudsman. 

Documents obtained by the Committee indicate that Operation Fast and 

Furious was one of several deeply flawed operations nm by ATF's Phoenix 

Field Division since 2006. Line agents reported to the Committee that they 

made their concerns about these controversial tactics public only after raising 

them first with their supervisors, but they stated that their concerns were not 

heeded. To ensure agents' concerns are communicated to ATF leadership, 

ATF should consider ways to improve its Office of the Ombudsman to make 

it more accessible and responsive to ATF line agents. 

Conduct a Review of the U.S. Attorney's Office in Arizona. Documents and 

testimony reoeived by the Committee indicate that the legal interpretations 

and prosecutorial decisions regarding firearms cases made by officials in 

the U.S. Attorney's Office in Arizona may differ substantially from those of 

other U.S. Attorneys' offices. Because it remains unclear to what extent these 

differences are the result of judicial, prosecutorial, or individual decisions, 

the Department of Justice should direct the Executive Office for United States 

Attorneys to conduct a thorough review of the Arizona U.S. Attorney's Office 

to ensure that it is doing everything it can to keep illegal guns off the streets 

and out of the hands of criminals. 

Expand the Multiple long Gun Sales Reporting Requirement. Numerous 

law enforcement agents testified before the Committee that obtaining reports 

on multiple purchases of long guns, including AK-47 variant assault weapons 

and .50 caliber semi-automatic sniper rifles that are now the "weapons of 

choice" for international drug cartels, would provide them with timely and 

actionable intelligence to help combat firearms trafficking rings. In July 2011, 

the Department of Justice issued a rule requiring such reports for weapon 

sales in certain states. Earlier this month, a Federal District Court upheld 

the rule, finding that "ATF acted rationally."275 ATF should now expand the 

reporting requirement to apply to other states in which firearms trafficking 

networks are particularly active. 

Confirm or Appoint a Permanent ATF Director. Consistent and strong 

leadership is vital to strengthening ATF and ensuring that policies and 

procedures are applied consistently. For six years, however, ATF has been 

forced to contend with temporary leadership because individual senators 

have blocked the confirmation of a permanent director. The Senate should 

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confirm a permanent director for ATF as soon as possible, and the President 

should consider a recess appointment if the Senate fails to do so. 

Enact a Dedicated Firearms Trafficking Statute. During the Committee's 

investigation, multiple law enforcement agents warned that there is currently 

no Federal statute that specifically prohibits firearms trafficking and, as a 

result, prosecutors often charge traffickers with "paperwork violations" 

such as dealing in firearms without a license. The agents testified that 

these cases are difficult to prove and that U.s. Attorneys' offices frequently 

decline to prosecute. They stated that a Federal statute specifically dedicated 

to prohibiting firearms trafficking would help them disrupt, defeat, and 

dismantle firearms trafficking organizations. In July 2011, Ranking Member 

Elijah Cummings and Representative Carolyn Maloney introduced legislation 

in the House to establish such a firearms trafficking statute. Senator Kirsten 

Gillibrand has introduced a similar bill in the Senate. Congress should 

consider and pass this legislation without delay. 

Provide ATF with Adequate Resources til Combat megal Gun Trafficking. 

Documents and testimony obtained by the Committee revealed that ATF line 

agents were drastically under-resourced, resulting in deficient surveillance of 

suspected straw purchasers and firearms traffickers. Over the past decade, 

ATF's budget has not kept pace with its law enforcement responsibilities, 

particularly in light of the exponential growth in illegal firearms trafficking to 

Mexico. Congress should appropriate the additional resources ATF needs to 

perform its mission and combat gun trafficking along the Southwest Border. 

the Prohibition Against Reporting Crime Gun Trace Data. To 

increase transparency by ATF and oversight by Congress, Congress should 

repeal the prohibition against reporting crime gun trace data and require ATF 

to provide yearly reports to Congress that include aggregate statistics about 

crime gun trace data categorized by State and Federal Firearms Licensee, 

as well as aggregate gun trace data for guns that are recovered in Mexico, 

categorized by State and Federal Firearms Licensee. This information will 

assist Congress in understanding the problem of gun trafficking along the 

Southwest Border and assessing ATF's progress in fighting it. 

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74504C1-79.eps

ENDNOTES 

Letter from James M. Cole, Deputy Attorney General. Department of Justice, 

to Rep. Darrell E. Is,a, Chairman, House Committee on Oversight and Government Reform, 

et al. (Dec. 2, 2011). 

2 ld. 

3 Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on 

OvcT8ight and Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on 

Oversight and Government Reform (Nov. 4, 2011). 

4 Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on 

Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on 

Oversight and Government Reform (Oct. 28, 2011). 

5 Minority Staff, House Committee on Oversight and Government Reform, 

Outgunned: Law Enforcement Agents Warn Congress They Lack Adequate Tools to Counter Illegal 

Firearms Trafficking (June 2011). 

6 Minority Members, House Committee on Oversight and Government 

Reform, Minority Forum on Law Enforcement Tools to Stop the Flood of Illegal Weapons (June 30, 

2011). 

7 Bureau of Alcohol, Tobacco, Firearms and Explosives, Analysis of Comments 

to Proposed Multiple-Sale Reporting Requirement (May 17, 2011); see also Violence Policy Center, 

Indicted: Typ',s of Firearms and Melhods of Gun Traffickingfrom the United States to Mexico as 

Revealed in U.S. Court Documents (Apr. 2009). 

8 Mexico Updates Death Toll in Drug War to 47,515, but Critics Dispute the Data, 

New York Times (Jan. 11, 2012); Procmaduria General de la Republica, Base de Datos por 

Fallecimientos por Presunta Rivalidad Delincuencial (online at www.pgr.gob.mx/temas%20 

relevantes/estadistica/estadisticas.asp) (accessed Jan. 27, 2011). 

9 Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism, 

Testimony of Lanny Breuer, Assistant Attorney General, Department of Justice, Combating 

International Organized Crime: Evaluating Currmt Authorities, Tools, and Resources (Nov. 1, 

2011). 

10 Calderon Calls for Restoring Assault Weapons Ball, The Caucus B1og, New York 

Times (May 20, 2010) (online at http://thecaucus.blogs.nytimes.com/2010/05/20/calderoncalls-for-restoring-assault-weapons-ban/l (accessed Jan. 27, 2(11). 

11 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 201 0), 

12 Department of Justice, Department of Justice Agencies (online at www.justice. 

gov/agencics/index-org.html) (accessed on Jan. 20, 2011). 

13 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 2010). 

14 Bureau of Alcohol, Tobacco, Firearms and Explosives, Phoenix Field Division 

(online at ",ww.atf.gov/field/phoenixl) (accessed on Jan. 20, 2(11). 

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74504C1-80.eps

15 United Slates Attorney's Office for the District of Arizona, Office OVf!rView 

(online at www.justice.gov/usao/az/office_ovcrvlew.html) (accessed on Jan. 20, 2011). 

16 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 20W). 

17 Government Accountability Office, firearms Trafficking: U.S. Efforts to Combat 

Arms Trafficking to Mexico Face Planning and Coordination Challenges (June 2009) (GAO-09-

709). 

18 Id; House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jan. 10,2012). 

19 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 2010). 

20 rd. 

21 House Judiciary Committee, Testimony of Eric H. Holder Jr., Attorney 

General, Department of Justice, Oversight of the Justice Department (Dec. 8, 2011). 

22 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 2010). 

23 ld. 

24 Congressional Research Service, Gun Trafficking and the Southwest Border 

(Sept. 21, 2009) (R40733). 

25 Department of Justice, Office of the Inspector General, Review of ATF's Project 

Gunrunner (Nov. 2010). 

26 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, I'irearms and Explosives (June 22, 2006). 

27 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 2007). 

28 Memorandum from Jennifer Maldonado and David Petermann, Assistant 

U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S. Attorney, 

District of Arizona (July 13, 2006). 

29 Id. 

30 Email fromLauraGwinn.Criminal Division, Department of Justice, to Kevin 

Carwile, Criminal Division, Department of Justice (Mar. 16, 2010). 

31 Memorandum from Jennifer Maldonado and David Petermann, Assistant 

U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Chariton, U.S. Attorney, 

District of Arizona (July 13, 2006). 

32 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (June 22, 2006). 

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74504C1-81.eps

33 Memorandum from Jennifer MaJdonado and David Petermann, Assistant 

US. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Chariton, U.S. Attorney, 

District of Arizona (July 13, 2006). 

34 Email from Mark Latham, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to Jennifer Maldonado and David Petermann, Assistant U.S. Attorneys, U.S. 

Attorney's Office, District of Arizona (June, 20, 2006). 

35 Email from Chuck Higman, Resident Agent in Charge, Tucson Office, 

Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Louis 

Quinonez, Group Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms 

and Explosives (Mar. 31, 2006). 

36 Memorandum from Jennifer Maldonado and David Petermann, Assistant 

U.S. Attorneys, US. Attorney's Office, District of Arizona, to Paul Chariton, U.s. Attorney, 

District of Arizona (July 13, 2006). 

37 ld. 

38 Id. 

39 Email from Lynnette Kimmins, Assistant U.S. Attorney; U.S. Attorney's 

Office, District of Arizona, to Paul Charlton, U.S. Attorney; District of Arizona (July 14, 2011). 

40 Email from Paul Charlton, U.s. Attorney; District of Arizona, to Lytmette 

Kimmins, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (July 14, 2011). 

41 Bureau of Alcohol, Tobacco. Firearms and Explosives, ATF Operational Plan 

(Oct. 6, 2006). 

42 ld. 

43 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to Brandon Garcia, Special Agent, Bureau of Alcohol, Tobacco, Firearms 

and Explosives (Oct. 11, 2006) (Attachment: Bureau of Alcohol, Tobacco, Firearms and 

Explosives, Surveillance of[Suspect] at Mesa Gun Show (Oct. 6, 2001i)); email from Heidi 

Dunn-Adkins, Assistant U.S. Attorney; U.s. Attorney's Office, District of Arizona, to Joelyn 

Marlowe and Jennifer Maldonado, Assistant U.S. Attorneys, U.S. Attorney's Office for the 

District of Arizona (Oct. 11,2006) (Attachment: Tucson Police Department, VCIT Activity 

Narratives 1010112006 -1010712006 (Oct. 7, 2006)). 

44 Email from Heidi Dunn-Adkins, Assistant U.S. Attorney, U.S. Attorney's 

Office, District of Arizona, to Joelyn Marlowe and Jennifer Maldonado, Assistant U.S. 

Attorneys, U.S. Attorney's Office for the District of Arizona (Oct. 11, 2006) (Attachment: 

"VeIT Activity Narratives 10/0112006 -10/07(2006"). 

45 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Fiream1s and Explosives (Dec. 5, 2006). 

46 Id. 

47 ld. 

48 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(Feb. 23, 2007). 

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230 


74504C1-82.eps

49 ld. 

50 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 23, 2007). 

51 Td. 

52 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol, 

Tobacco, Firearms and Explosives, to Adam Price, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, and Lieutenant Sti50, Tucson Police Department (Apr. 10, 2007). 

53 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(Apr. 11, 2007). 

54 ld. 

55 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to Vicki Moore, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 18, 

2007). 

56 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 23, 2007). 

57 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(May 7, 2007). 

58 [d. 

59 ld. 

60 ld. 

61 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (May 

22,2007). 

62 Email from Athanasio Vlahoulis, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to Juan Delgado and Chuck Higman, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, et al. (June 7, 2007). 

63 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operatiollal Plall 

(June 26, 2007). 

64 [d. 

65 Memorandum from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 20D7). 

66 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol, 

Tobacco, Firearms and Explosives, to Larry Shiver, Regional OCDETF Coordinator, Bureau 

of Alcohol, Tobacco, Firearms and Explosives (June 26, 2007). 

67 Td. 

68 Email fromLauraGwinn.Criminal Division, Department of Justice, to Bryan 

Reeves and James Trusty, Criminal Division, Deparhnent of Justice (Sept. 28, 2009) ("A rizona 

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74504C1-83.eps

did not yet indict the case due to the original AUSA being appointed as a magistrate judge, 

and the new AUSA apparently too busy to devote the necessary lime to putting the case 

together."). 

69 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jan. 10,2012). 

70 Id. 

7l Id. 

72 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin 

Carwile and James Trusty, Criminal Division, Department of Justice (Sept. 23, 2009). 

73 Email from Laura Gwinn, Criminal Division, Department of Justice, to James 

Trusty, Criminal Division, Department of Justice (Mar. 16, 2010). 

74 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin 

Carwile, Criminal Division, Department of Justice (Mar. 16, 2010). 

75 Email from Laura Gwirm, Criminal Division, Department of Justice, to James 

Trusty, Criminal Division, Department of Justice (May 17, 2010). 

76 U.s. Attorney's Office, District of Arizona, Sroen Individuals Charged with Guntrafficking Crimes (Nov. 9, 2010). 

77 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 

(Oct. 18, 2007). 

78 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper, CrossBorder Firearms Operations (2011). 

79 ld. 

80 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, Enforcement Programs, to William Hoover, Assistant Director for Field 

Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 28, 2007). 

81 ld. 

82 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational 

Plans (Oct. 18,2007). On November 27,2007, a criminal complaint was filed against Fidel 

Hernandez and Carlos Morales-Valenzuela for the tmla wfill export of firearms without a 

license. Hernandez was arrested in the United States the same day. See Criminal Complaint 

(Nov. 27, 2007), United States v. Carlos Valentin Morales-Valenzuela and Fidel Hernandez, D. Ariz. 

(No.07-06964M). 

83 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 

Tobacco, Firearms and Explosives, and William Newell, Special Agent in Charge, Phoenix 

Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. (Oct. 4, 2007). 

84 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 

Tobacco, Firearms and Explosives (Oct. 5, 2007). 

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74504C1-84.eps

85 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carrol\, Bureau of 

Alcohol, Tobacco, Firearms and Explosives (Oct. 6, 2007). 

86 ld. 

87 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan 

(Oct. 18,2007); Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 

(Nov. 1, 20D7); Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans 

(Noy. 26, 2007). 

88 Id. 

89 Department of Justice, Meeting of the Attorney General with Mexican Attornetj 

General Medina Mora (Noy. 16,2007). 

90 ld. 

91 ld. 

92 Email from William Hoover, Assistant Director for Field Operations, 

Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol, 

Tobacco, Firearms and Explosives (Oct. 5, 2007). 

93 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and 

Explosives, to William Hoover, Assistant Director for Pield Operations, Bureau of Alcohol, 

Tobacco, Firearms and Explosives (Nov. 15,2007). 

94 

26,2007). 

95 

96 

97 

Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (Nov. 

Id. 

rd. 

ld. 

98 Email from Robert Miskell United States Attorney's Office, District of 

Arizona to Sandra Hansen, United States Attorney's Office, District of Arizona (Nov. 3, 

2009) (Attachment: "TUCSON CRIMINAL DIVISION, SIGNIFICANT CASES - September, 

2009"). 

99 

100 

10,2008). 

101 

102 

103 

104 

Td. 

Bureau of Alcohol, Tobacco, Hrearms and Explosives, Operational Plan (Dec. 

ld. 

ld. 

ld. 

Id. 

105 Email from Matthew Allen, Office of Investigations, Department of 

Homeland Security, to William Newell, Special Agent in Charge, Phoenix Held Division, 

Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 12,2008). 

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74504C1-85.eps

106 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Matthew Allen, Office of 

Investigations, Department of Homeland Security (Aug. 12,2008). 

107 U.s. Attorney's Office, District of Arizona, Leaders Sentenced for Conspiracy that 

Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010). 

108 Criminal Complaint (Dec. 10,2008), United Staies v. Aldo Arizmendiz, et aI., D. 

Ariz, (No. 08-01853M). 

109 ld. 

110 Id. 

111 Id, 

112 U.S, Attorney's Office, District of Arizona, Leaders Sentenced for ConSpiraCl) that 

Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010), 

113 Id. 

114 Id.; Criminal Complaint (Dec. 10, 2008), United States v. Aldo Arizmendiz, et aI., 

D. Ariz. (No. 08-01853M). 

115 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 

Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 

Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (Jan, 26, 2010) (Attachment: "Operation: The Fast and the Furious"), 

116 ld, 

117 ld, 

118 ld, 

119 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan, 8, 

2010), 

120 ld, 

121 fd. 

122 Memorandum from Emory Hurley, Assistant US Attorney, U.S, Attorney's 

Office, District of Arizona, to Mike Morrissey, Assistant Us. Attorney, US Attorney's Office, 

District of Arizona (Jan. 5, 201 0). 

123 House Committee on Oversight and Government Reform, Transcribed 

Interview of David Voth (June 30, 2011), 

124 ld, 

125 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan. 8, 

2010), 

126 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newel! (June 8, 2011). 

127 ld, 

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74504C1-86.eps

128 Memorandum from Emory Hurley, Assistant U.s. Attorney; U.S. Attorney's 

Office, District of Arizona, to Mike Morrissey, Assistant U.S. Attorney, U.S. Attorney's Office, 

District of Arizona (Jan. 5, 2010). 

129 Id. 

130 Email from Mike Morrissey, Assistant U.S. Attorney, U.s. Attorney's Office, 

District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Jan. 5, 2010). 

131 Email from Dennis Burke, U.s. Attorney, District of Arizona, to Mike 

Morrissey, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (Jan. 7, 2010). 

132 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Aug. 18, 20n). 

133 Memorandum from Emory Hurley; Assistant U.S. Attorney, U.S. Attorney's 

Office, District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Aug. 16, 

2010). 

134 Department of Justice, Drug Enforcement Administration, Organized Crime 

Drug Enforcement Task I'orces (online at www.justice.gov/dea/programs/ocdetf.htm) 

(accessed on Jan. 27, 2012). 

135 Bureau of Alcohol, Tobacco, Firearms and Explosives, Organized Crime Drug 

Enforcement Task Force Application for Operation The Fast and the Furious (Jan. 2010). 

136 House Committee on Oversight and Government Reform, Transcribed 

Interview of William McMahon (June 28,2011). 

137 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 

Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 

Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (Jan. 26, 2010) (Attachment: "Operation: The Fast and the Furious"). 

138 Email from George Gillett, Assistant Special Agent in Charge, Phoenix 

Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell, 

Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (Jan. 26, 2010). 

139 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of AlcohOl, Tobacco, Firearms and Explosives, to William McMahon, 

Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (Feb. 5, 2010). 

140 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (August 18, 2011). 

141 Email from Emory Hurley, Assistant U.S. Attorney, U.s. Attorney's Office, 

District of Arizona, to Patrick Cunningham, Assistant U.S. Attorney, U.S. Attorney's Office, 

District of Arizona (Feb. 22, 2010); Email from Emory Hurley, Assistant U.s" Attorney, U.S. 

Attorney's Office, District of Arizona, to Laura Gwinn, Department of Justice, Criminal 

Division (Mar. 15, 2010). 

142 House Committee on Oversight and Goverrunent Reform, Transcribed 

Interview of Olindo Casa (Apr. 28, 2011). 

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74504C1-87.eps

143 House Committee on Oversight and Government Reform, Transcribed 

Interview of John Dodson (Apr. 26, 2011). 

144 I louse Committee on Oversight and Government Reform, Transcribed 

Interview of John Dodson (Apr. 26, 2011). 

145 House Committee on Oversight and Government Reform,Transcribed 

Interview of William Hoover (July 21, 2011). 

146 ld. 

147 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William McMahon, 

Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (Apr. 27, 2010). 

"] 48 See e.g., Bureau of Alcohol, Tobacco, Firearms and Explosives, SWB Briefing 

Paper (June 11, 201 0) (indicating that Phoenix ATF agents continued "conducting almost 

daily surveillance" of straw purchaser transactions); Email from David Voth, Group 

Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, 

to Federal Firearms Licensee (Aug. 25, 2010) (encouraging a cooperating gun dealer to 

complete a large purchase order to a suspected straw purchaser). 

149 Email from Federal Firearms Licensee to David Voth, Phoenix Field Division, 

Bureau of Alcohol, Tobacco, Firearms and Explosives (Jun. 17,2010). 

150 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to David Voth, Group 

Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives 

(July 14, 2010). 

151 Email from Federal Firearms Licensee, to David Voth, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 25, 2010). 

152 Email from David Voth, Group Supervisor, Phoenix Field Division, Bureau 

of Alcohol, Tobacco, Firearnls and Explosives, to Federal Firearms Licensee (Aug. 25, 2010). 

153 House Committee on Oversight and Government Reform, Transcribed 

Interview of Andre Howard (May 18, 2011). 

154 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newell (June 8, 2011). 

155 ld. 

156 ld. 

157 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis K. Burke (Aug. 18, 2011). 

158 Indictment (Jan 19, 2011), United States v. Jaime Avila, Jr., et al., D. Ariz. (No. 

CR-1l-126 PHX JAT (LOA)). 

159 House Committee on Oversight and Government Reform, Testimony of Peter 

J. Farcelli, Special Agent, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and 

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74504C1-88.eps

Explosives, Hearing on Operation Fast and Furious: Reckless Decisiorls, Tragic Outcomes (June 

15,2011). 

160 ld. 

161 House Committee on Oversight and Government Reform, Transcribed 

Interview of Peter]. Forcelli (Apr. 28, 2011). 

162 ld. 

163 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4, 2011). 

164 ld.; House Committee on Oversight and Government Refonn, Transcribed 

Interview of Larry Alt (Apr. 27, 2011). Memorandum from Thomas E. Karmgard, ATF 

Division Counsel (Phoenix) to the U.S. Attorney's Office for the District of Arizona, ATF 

Division Counsel Nates Relating to "Corpus Delicti" Issue in Straw Purchaser Case (Feb. 24, 2010). 

165 llouse Committee on Oversight and Government Reform, Transcribed 

Interview of Peter Forcelli (Apr. 28, 2011). 

166 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Newell (June 8, 2011). 

167 Memorandum from Thomas E. Karmgard, ATF Division Counsel (Phoenix) 

to the U.S. Attorney's Office for the District of Arizona, ATF Division Counsel Notes Relatirlg to 

"Corpus Delicti" Issue in Straw Purchaser Case (Feb. 24, 2010). 

168 House Committee on Oversight and Government Refonn, Transcribed 

Interview of David Voth (June 30, 2011). 

169 Jd. 

170 ld. 

171 ld. 

172 Senate Committee on Appropriations, Subcommittee on Commerce, Justice, 

Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General 

Department of Justice, Hearing on the FY 12 Dept. of Justice Budget (Mar. 10, 2011); House 

Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department 

of Justice, Oversight Hearing on the United States Department of Justice (May 3, 2011); House 

Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department of 

Justice, Oversight Hearing on the United States Department of Justice (Dec. 8,2011). 

173 Senate Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney 

General Department of Justice, Hearing on Justice Departmerlt Oversight (Nov. 8, 2011). 

174 House Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney 

General Department of Justice, Oversight Hearing on the United States Department afJustice 

(Dec. 8, 2011). 

175 Memorandum from Michael F. Walther, National Drug Intelligence Center, 

to the Attorney General through the Acting Deputy Attorney General, Department of 

Justice, Weekly Report for July 5 through July 9, 2010 (July 5, 2010). 

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176 Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to 

Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, et 

al. (Oct. 7,2011). 

177 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 

Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 

Arizona (Dec. 14, 2010). 

178 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty 

Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of 

Justice (Dec. 15,201 0). 

179 ld. 

180 Email from Dennis K. Burke, U.s. Attorney, District of Arizona, to Monty 

Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of 

Justice (Dec. 15, 2010). 

181 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 

Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 

Arizona (Dec. 15,2010). 

182 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty 

Wilkinson, Depu ty Chief of Staff and Counselor to the Attorney General, Department of 

Justice (Dec. 15, 2010). 

183 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the 

Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of 

Arizona (Dec. 15,2010), 

184 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Dec. 13,2011), 

185 Senate Committee on the Judiciary, Testimony of Eric H. Holder, Jr., Attorney 

General, Department of Justice, Hearing on Oversight of the U.S. Department of Justice (Nov. 8, 

2011). 

186 Letter from Ronal<l Weich, Assistant Attorney General, Office of Legislative 

Affairs, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on 

Oversight and Government Reform, et al. (Jan. 27, 2012). 

187 House Committee on Oversight and Government Reform, Transcribed 

Interview of Gary Grindler (Dec. 14,2011). 

188 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4,20:11); House Committee on Oversight and 

Government Reform, Transcribed Interview of William Hoover (July 21, 2011), 

189 House Committee on Oversight and Government Reform, Transcribed 

Interview of Gary Grindler (Dec. 14, 2011). 

190 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Hoover (July 21,2011). 

191 House Committee on Oversight and Government Reform, Transcribed 

Interview of Gary Grindler (Dec. 14, 2011). 

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192 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4, 2011). 

193 Id. 

194 [d. 

195 ld. 

196 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Hoover (July 21,2011). 

197 Id. 

198 House Committee on Oversight and Government Reform, Transcribed 

Interview of Mark Chait (July 20,2011). 

199 House Committee on Oversight and Government Reform, Transcribed 

Interview of William McMahon (June 28, 2011). 

200 House Committee on Oversight and Government Reform, Transcribed 

Interview of William Hoover (July 21, 2011). 

201 Id. 

202 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Aug. 18, 2011). 

203 Id. 

204 Email from William Newell, Special Agent in Charge, Phoenix Field 

Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Dennis Burke, u.s. 

Attorney, District of Arizona (June 24, 2010). 

205 Memorandum from Emory Hurley, Assistant U.S Attorney, U.S. Attorney's 

Office, District of Arizona, to Dennis Burke, U.s. Attorney, District of Arizona (Aug. 16, 

2010). 

206 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant 

Attorney General, Criminal Division, Department of Justice, Hearing on Combating 

International Organized Crime: Evaluating Current Authorities, Tools, and Resources (Nov. 1, 

2011). 

207 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jan. 10, 2012). 

208 18 U.s.c. § 2516. 

209 Julie Wuslich, Survey o/Title Ill, United States Attorneys' Bulletin (Jan. 2007). 

210 [d. 

211 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jan. 10, 2012). 

212 Id. 

213 rd. 

214 Id. 

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215 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant 

Attorney General, Criminal Division, Department at Justice, Hearing on Combating 

International Organized Crime: Evaluatinl{ Current Authorities, Tools, and Resources, 112th Congo 

(Novo 1, 2011)0 

216 Email from Kevin Carwile, Criminal Division, Department of Justice, to 

Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of 

Justice (Maro 16, 2010)0 

217 Email from Jason \'\leinstein, Deputy Assistant Attorney General, Criminal 

Division, Department of Justice, to Kevin Carwile, Criminal Division, Department of Justice, 

(Mar. 16, 2010)0 

218 Email from Kevin Carwile, Criminal Division, Department of Justice, to 

Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of 

Justice, (Mar 16. 2010)0 

219 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jano 10,2012)0 

220 Email from Jason Weinstein, Deputy Assistant Attorney General. Criminal 

Division, Department of Justice, to James Trusty, Criminal Division, Department of Justice, et 

alo (Apro 12,2010)0 

221 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jano 10,2012)0 

222 ldo 

223 Ido 

224 I,l, 

225 ldo 

226 ldo 

227 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jano 10,2012); email from Jason Weinstein, Deputy Assistant 

Attorney General, Criminal Division, Department to Justice, to William Hoover, Deputy 

Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 20, 2010). 

228 Email meeting request from Jason Weinstein, Deputy Assistant Attorney 

General, Criminal Division, Department to Justice, to James Trusty, Criminal Division, 

Department of Justice, et aL (Apr. 28, 2010)0 

229 Handwritten Notes, Laura Sweeney, Meeting with William Hoover, Deputy 

Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, et aL (Apr. 28, 2010). 

230 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jano 10,2012)0 

231 ldo 

232 Ido 

233 Ido 

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234 Senate Judiciary Committee, Combating International Organized Crime: 

Evaluating Current Authorities, Tools, and Resources (Nov. 1, 2011). 

235 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to 

Adam Lurie, Department of Justice, et al. (Feb. 4, 2011). 

236 Id. 

237 Id. 

238 Id. 

239 Email from Jason Weinstein, Deputy Assistant Attorney General, Department 

of Justice, to Adam Lurie, Department of Justice, et al. (Feb. 4, 2011). 

240 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to 

Mary Rodriguez, Department of Justice, et al. (Feb. 8,2011). 

241 ld. 

242 ld. 

243 Letter from Sen. Charles Grassley.. Ranking Member, Senate Judiciary 

Committee, to Eric H. Holder, Jr., Attorney General, Department of Justice (Jan. 27, 2011). 

244 Letter from Ronald Weich, Assistant Attorney General, Office of Legislative 

Affairs, Department of Justice, to Sen. Charles Grassle)~ Ranking Member, Senate Judiciary 

Committee (Peb. 4, 2011). 

245 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 

to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 

et al. (Dec. 2, 2011). 

246 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 

to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 

et al. (Dec. 2, 2011). 

247 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative 

Affairs, Department of Justice, Meeting with Kenneth Melson, Acting Director, Bureau of 

Alcohol, Tobacco, Firearms and Explosives, et al. (Jan. 28, 2011). 

248 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative 

Affairs, Department of Justice, Meeting with William Hoover, Deputy Director, Bureau of 

Alcohol, Tobacco, Firearms and Explosives, et al. (Feb. 1,2011). 

249 House Committee on Oversight and Government Reform, Transcribed 

Interview of Kenneth Melson (July 4,2011); House Committee on Oversight and 

Government Reform, Transcribed Interview of William Hoover (July 21,2011). 

250 Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason 

Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice, et 

al. (Jan. 31, 2011). 

251 See, e.g., Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason 

Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice, 

et al. (Feb. 2, 2011) (requesting that the Department of Justice insert the following language 

into the Depaltment's response to Sen. Grassley's January 27, 2011, letter: "Regarding the 

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allegations repeated in your letter that ATF in any way "sanctioned", [sic] had knowledge 

of, or permitted weapons purchased on January 16, 2010 in Arizona to reach the Republic of 

Mexico is categorically false."). 

252 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Dec. 13,2011). 

253 Letter from Tobin Romero, Partner, Williams & Connelly LLl', Counsel, to 

Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform 

(Jan. 19, 2011). 

254 House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis Burke (Dec. 13,2011). 

255 House Committee on Oversight and Government Reform, Transcribed 

Interview of Jason Weinstein (Jan. 10,2(12). 

256 ld. 

257 ld. 

258 ld. 

259 Senate Committee on Appropriations, Subcommittee on Commerce, Justice, 

Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General 

Department of Justice, Hearing on the FY 12 Dept. of Justice Budget (Mar. 10, 2011). 

260 !d. 

261 Email from James Cole, Deputy Attorney General, Department of Justice, 

to Angel Moreno, John Murphy, Dennis Burke, Kenneth Gonzales, and Laura Duffy, U.s. 

Attorneys (Mar. 9, 2011). 

262 ATF Chj~fRemoved OVI!r Bordl!r Guns Scandal, Los Angeles Times (Aug. 30, 

2011). 

263 lssa Subpoenas AZ US Attorney Criminal Division Chief, Examiner (Jan. 19, 

2012). 

264 ATF Chicf Removed Over Bordl!r Guns Scandal, Los Angeles Times (Aug. 30, 

2011); Three ATF Officials Reassigned in Shakeup Over Fast and Furious, Main Justice (Jan. 6, 

2012) (online at www.mainjustice.com!2012!Ol/06/three-atf-officials-reassigned-in-shakeupover-fast-and-furious/) (accessed Jan. 27, 2012). 

265 ld. 

266 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Acting Director 

Jones Announces New Staff Assi:"mments (Oct. 5, 2011); Three ATF Officials Reassigned in Shakeup 

Over Fast and Furious, Main Justice (Jan. 6, 2012) (online at www.mainjustice.com/2012/01/06/ 

three-atf-officials-reassigned-in-shakeup-over-fast-and-furious!) (accessed Jan. 27, 2012). 

267 ld. 

268 ATF Officials Suspended over Fast and Furious, Washington Examiner (Jan. 10, 

2012). 

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269 ATF Official Newell Says Whistleblowers Were Silent on Fast and Furious, Main 

Justice (Sept. 22, 2011) (online at www.mainjustice.com/20l1/09/22/atf-official-newell-sayswhistleblowers-were-silent-on-fast-and-furious/) (accessed Jan. 27, 2012). 

270 'Fast and Furious' Whistleblowers Struggle Six Months After TestijiJing Against 

ATF Program, Fox News (Nov. 30, 2011). 

271 ld. 

272 Letter from James M. Cole, Deputy Attorney General, Department of Justice, 

to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, 

et al. (Jan. 27, 2012). 

273 ld. 

274 ld. 

275 Federal Judge Rejects Challenge to Gun Dealer Rules, Washington Post (Jan. 14, 

2012). 

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SHEILA ,JACKSON LEE 11ffi.lQ'lHl<.i';:f"~ Q1nugr~.!ia nf t~r lbtiif(l ~tUt2f! 

jflllUlC of i£t'ltl.'llcntathrcs 

JIII1,ij~illgliln, 1:1«[ 211515 

The Honorable Eric Holder 

U.S< Attorney General 

United States Department of Justice 

Robert F. Kennedy Building 

9S(l Penn..'iyivBI1iaAve., N.W. 

Wa;hington, DC 20530 

Dear Attorney General Holder: 

June 7, 2012 

COWMlmtS 

JUDIC1.4fW 

C')II):r .. '''f4M1'D'EU:-

i~V!!;~~o;~,'¢IoP'),.)C'" 

""'''''""""I'r(}-\,,~,~ruu~!iiQi'!~~ 

Sv..4Jl'i!ITli,.!\ffi'j tMJI[I'!i!AT~ LAw 

CmM~_ ,~~ a,N£.! H~,..vSWA<lTf 

CWi>ln'\.fTlOl'O .. CiI'l1..RNmre. ~CfflL. !.J!mrHi'$ 

HOMELAND SECURiTY 

FOR'E.lGr-J AFFAF~S 

~~ 

Af"P-"" ..... ""'~1-4Al>1I'f 

~ii' .... 'iiT~,SQ\Jll'l"""'" 

T!i~,N...~:J'IjL!i..1\l\')!\!,_.JTM.Dt! 

[ am deeply concerned about the systemic and possibly illegal voter purge happening in Texas. right now .. 

This comes on the heels of restrictive voter photo identification legislation pending or already signed into 

law in Texas. In my opinion. these actionr. by the Texa'5 Secrct.ary of State's Office have only one purpose: 

to disenfranchise certain vote1's. I am requesting immediate action becau~e of the broaJ implications. that 

the voter purging has on ongoing and future state, local. and federal elections. 

According to a reccnt article in the Houston Chronicle, more than 300,iJOO valid voters were notified that 

they could be removed from the Texas voter rolls from Novemher 24J08 to November 2010. This oven 

purging is done under the guise of reducing voter fraud IifId updating voter registration rolls. The article 

noted that more than 15 million Texas voters could have their registrations cancelled. 

As with legislation introduced in various states around the country the true purpose of the purging is the 

disenfranchi;;cment of eligible VOtCC3 especially the elderly. young voters, students. minorities, a.nd 10wincome voters. Approximately 2 percent of voting-age citizens in the country-or more than 20 million 

indivlduals- lack government-issued photo identification. 

I urge you to protect the ,,·oting rights of Americans by using the fuU power oCthe Department of Justice 

to review the voter purging in Texas and scrutinize the broader implications and implementation. 

The Voting Right'i Act vests significant authority in the Department to ensure laws are not implemented 

in a discriminatory manner. Section 5 of the Voting Rights Act requires preclearance by the Department 
244 


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when there is all attempt to change any voting qualification or prerequisite to voting, or standard, practice. 

or procedure with respect to voting in cQveredjurisdictions. 

In Section 5 jurisdictions, such as Texas, whenever photo identification legislation is considered, the 

Department should closely monitor the administrative and legislative process to track :my unlawful intent 

evinced by the proceedings, which I believe is occurring in my state. 

Restrictive voter photo identification legislation, and the ,!;ubsequent purging ofvorer rolls has the 

potential to block millions of eligible American voters in Texas and other states, and thus suppress the 

right to vote. I urge you to exercise your authority to examine the law and brash actions by the State of 

Texas so that voting rights arc notjcopardized. 

I also reqliest that you brief me on the efforts the Department is undertaking to ensure these actions ,fife 

implemented in accordance with Texas state law, the United States Constitution, and the Voting Rights 

Act. 

Very Truly Yours, 

Sheila Jackson Lee 
245 


74504C3-1.eps

SHEiLA JACKSON LEE 18TH D!:6Yfltcr, l"c)(J\':) (Ctlllgr~!ia of i!1c lhtltrl! ~ttttl'!l 

l!jouM iJf t!t£Pf2.!1l.'111n1illtll 

lthsi)illgilm, lJ(t 2U513 

The Honorable Eric Holder 

U.S. Attorney General 

United States Depurtmcnt of Justice 

Robert F. Kennedy Building 

950 Pennsylvania Ave., N.\V. 

Washington, DC 20530 

Dear Attorney General Holder: 

June 7,2012 

Cc-M,,,,,Hff.S 

.;UDiC!A"iY 

"L''''';Q:t~'1"'l:E 

'''',W\CIc(}",,,-,,,,,~,"pv<,,,, 

HOME-LAND SECURITY 

FO!1E1GN AFFAIBS 

S;JI,iC0M"",T".S 

b.Hl,C''''''''O':;,Q;lJ>l.,l-!f-','1-' 

DEMOCR~T!C CAUCUS 

I am deeply troubled about the continued ineidents of race in jury selection that are ongoing and 

systemic in Texas and likely in other states, particularly in the South. It is only part of a recent 

trend in racial comments and invective filling up our airwaves~ dominating hlog dlscussion5, and 

seeming]y uhiquitous in the commentary sections of major newspapers and websites, I request 

the Department of Justice act expeditiously to ensure that instances of race-based jury selection 

in the State of Texas are dealt with to the fullest extent of the law. 

In Houston, Texas just this year, one officer was acquitted in the case of Chad Holley. 

As T referenced in a letter I "'Tote to you recent1y~ in the first trial on this matter Officer Blomberg 

was found not guilty on May 16,2012, 1 asked that aspects of this case be investigated to detennine 

whether Mr. Holley's civil rights were violated, Aiso it should be determined whether this is a 

practice and pattern of the Houston Police Department. Further issues with law enforcement in Harris 

County will also be submitted. 

As you'll recall fTOm the holding o[the Batson case the Court held that ifthe trial court decided 

that the facts established prima facie, purposeful discrimination and thaI the prosecution did not 

proffer a neutral explanation for its actions, petitioner's conviction had to be reversed, The Court 

ovemlled Swain v. Alabama, holding that "10 the extent that it required petitioner to establish a 

systematic pattern of discrimination injury selection." 
246 


74504C3-2.eps

It is a travesty that in this day and age incidents like this arc still occurring. Was the Chad Holley 

case Houston's Rodney King moment? I certainly hope not Chad Holley and his family deserve 

a fair and just federal civil rights investigation. We must not allow the actions of some officers to 

become the image ofthe entire department 

I urge you to protect the rights of Americans by using tbe full power of the Department of Justice 

to review acts, real and perceived which demonstrate purging of certain individuals from juries 

in Texas and scnltinize the broader implications and implementation. 

As a Member oftbe Judiciary Committee, I have an obligation to do all that is possible to 

prevent all fnnns ofbia" especially in the implementation of the law and by those entrusted to 

protect our citizens and ensuring the preservation of equality and justice in our criminal justice 

system. Thank you in advance for your consideration of this issue. We all share a commitment 

to ensuring that our nation's la\v enforcement epitomizes the ideals of equality under the law 

enshrined in our Constitution. 

I also request that you brief me on the efforts the Dep1Lrtment is undertaking to ensure these 

actions are implemented in accordance with Texas state law, the lJnited States Constitution, and 

all applicable penal laws. 

Very Truly Yours, 

Sheila Jackson Lee 

CC: Assistant Attorney General Thomas Perez 
247 

Material submitted by the Honorable Darrell Issa 


74504D1-1.eps

To: 

From~ 

Date: 

Re: 

ONE HUNDRED TVoIELFTH CONGRESS 

<!tongre!)!) of tbe Wniteb ~tate~ 

~OUfie ot i\eprf5C1ltfltibcli 

COMMITTEE ON OVERSIG'-lT AND GOVERNMENT REFOP,fv) 

2157 RAYDUJ-lN HOUSE OFF!CL B:J!lDING 

WASH!NlnON, we 20515-6143 

MEMORANDUM 

Members, Committee on Ov.night and Goy.romenl Reform 

Darrell Issa, Chairman 

!\tay 3, 2012 

Update on Operation Fast and Furious 

Since February 2011, the House Oversight and Government and Government Reform Committee 

has been conducting ajoint investigation with Senate Judiciary Committee Ranking Member 

Chuck Grassley (R-IA) of reckless conduct in the Justice Department's Operation Fast and 

Furlous. The committee has held three hearings, conducted twenty-follr transcribed inlerviews 

with fact witnesses, sent the Department of Justice over fifty letters, and issued the Department 

of Justice two subpoenas for documents. The Justice Department, however, mntinues to 

withhold documents critical to understanding decision making and responsibility in Operation 

Fast and Furious. 

This memo explains key events and facts in Operation Fast and Furious that have been 

uncovered during the congressional investigation; remaining questions that the Justice 

Department refused to cooperate in helping the Committee answer; the ongoing relevance of 

these questions; and the extent of the harm created by both Operation Fast and Furious and the 

Department's refusal to fully cooperate. The memo also explains issues for Committee Members 

to consider in making a decision about holding Attorney General Eric Holder in contempt of 

Congress for his Department's refusal to provide subpoenaed documents. 

Attached to (his memo for review and discussion is a draft version of a contempt repOit that the 

Committee may consider at an upcoming business meeting. 

Introduction to Fast and Furious 

In the aftermath of a federal agent's Jeath, on February 4, 2011, the United States Department of 

Justice sent a letter to Congress denying whistleblower allegations that the .Iustice Department 

had facilitated the illegal transfer ofweapol1s to Mexican drug caltels. The Justice Department 

insisted that federal authorities always make, "every e·ffort to interdict weapons that have been 
248 


74504D1-2.eps

purchased illcgally and prevent their transportation to Mexico," and rejected accusations that two 

assault rifles found at the Arizona desert murder scene ofa U.S. Border Patrol agent resulted 

from a Bureau of Alcohol, Tobacco, Firearms, and Expl0sives (ATF) case known as Operation 

Fast and Furious. 

Nearly ten months later, on December 2, 2011, the Justice Department sent Congress a new letter 

rescinding the previous written denia1 and acknowledging that Operation Fast and Furious was 

"fundamentally flawed." 

The Congressional investigation into this dangerously flawed operation has focused on ensuring 

accountability for reckless conduct that contributed to deaths and continues to jeopardize public 

safety. More than a year latcr, the family of a murdered Border Parrol agent, federal agents 

facing retaliation for blowing the whistle on reckless conduct, and the citizens of one of 

America's most important and growing trade partuers continue (0 demand the full truth. The 

Justice Department's rolhsal to fully cooperate with this investigation has outraged many 

Americans and left Congress with the choice of challenging or accepting the Justice 

Department's insistence that it only face an internal investigation of itself. 

While field operations for Fast and Furious began in September 2009 and ended in January 2011, 

the scandal began to unravel in the early morning hours of December 15,20 I 0, when a warrior 

and patriot lost his life defending the United States. 

A Tr:agic Death Leads 10 Whislleblowers 

Lale in the evening of December 14,2010, Border Patrol Agent Brian Terry, a native of 

Michigan and Marine veteran, was on patrol with three other agents in Peck Canyon, near Rio 

Rico, Arizona. The agents spotted a group of lhe suspected illegal aliens - at leas! two were 

carrying riiles. As the agents approached, at least one ufthe suspecls fired at them. The agents 

returned fire. In the midst of the gunfight. Agent Terry was struck by a bullet. Most of the 

suspecled aliens fled the scene, though one of them had been wounded and was unable t'J flee. 

Though Agent Terry was fully conscious aftcr being wounded, his bleeding could not be stopped 

and he died in the desert during the early morning hours of Deeember 15 while the group waited 

for medical assistance to arrive. 

When help tlnally did arrive, investigators recovered two AK-47 variant rifles at the scene. 

Traces conducted later that day showed the two weapons had been bought on January 16, 2010, 

by a then 23 year old - .Jaime Avila of Phoenix, Arizona. The traces also showed investigators 

something elsc. 

ATF had entered Avila as a suspect into the database more than a year earlier on November 25, 

2009, as part of Operation Fast and Furiolls - the Department oflustice's largest ongoing 

fire.nns trafficking case at the time. Avila was a low-level straw-buyer in a weapons traftlcking 

organization - a seemingly legal purchaser of firearms who conuucted transactions with the 

illegal motive of buying them for someone else. In Avila's case, the real purchaser ()fthe 

weapons he procured was a Mexican drug cartel. 

2 
249 


74504D1-3.eps

In the wake ofthe Terry murder, law enforcement agents quickly located and arrested Avila. The 

U.S. Attorney's Office in Arizona indicted Avila on three counts of"lying and buying"-

charges made primarily on the grounds that he had faisely indicated that weapons had been 

purchased for his own use. 

The news of Tcrry's death quickiy made its way back to the ATF agents working on Operation 

Fast and Furious. This news was the nightmare agents working the case had long dreaded, even 

expected. Two ATF agents, .lohn Dodson and Larry AI~ described their feelings: 

Agent Dodson: 

}Ve knew Jaime Avila was a straw purchaser, had him identified as a kn0l1·'n strm1.l 

purchaser supplying weapons to the cartel .... And then in May, we had a recovelY where 

Border Patrol encounters an armed group a/bandits and recovered an AK variant rifle 

.. , purchased during the time lve were watching Jaime Avila, had him under sUl1Jeillance, 

and we did nothing. 

Then 011 December 14th, 2010 Agent Brian Terry is killed il1 Rio Rico, Arizona. Two 

weapons recoveredfrom the scene. ,two AK variant weapons purchased by Jaime 

Avila on January 16th, 2010 while we had him under surveillance, <ifier we knew him to 

be a straw purchaser, after we ident(fied him 0 .... ' purchasing J7rearms for a known 

Mexican drug carlel. 

AgentAIt: 

I have lovedworkingfor ATF since I have been hired here. I came here to relirefram 

AlF .... I am nol-- I am embarrassed here. I regrellhe day that I setfoot inlo this/ield 

division because of some of the Ihings that afew people have done and ... the impacl if 

has had on Ihe public and sqfety and Agent Terry. 

Although agents indicatcd they had already complained to supervisors that the reckless tactics 

used would result in tragedics~ Agent Terry's senseless death left the impression on some agents 

that more needed to be done. These agents again appealed to unsympathetic supervisors, but 

pleas rell on deaf ears and efforts to look outside ATF for help began. One agent indicated that 

he tried to alert the U.S. Department of Justice Inspector General's office as a whistleblower but 

got nowhere. 

By January 2011 - just a month after Agent Terry's tragic murder - blogs, media outlets, and a 

United States Senale office had picked up 011 the agents' concerns and helped bring their 

allegations about Operation Fast and Furious to a national audience. On February 4, the 

Department of justice, insinuating that the whistleblowers were lying, formally denied the 

allegations in a letter to Congress. 
250 


74504D1-4.eps

Fast and Fllrious Conceived 

The ATF Phoenix Field Division began Operation Fast and Furious in the fall of 2009 after 

suspicious weapons purchases led agents to the discovery of an apparent Phoenix-based arms 

trafficking syndicate. Having been encouraged to devise grander strategies to stop the transfers 

ofweapol1s 10 Mexican drug cartels, the Phoenix based agents devised a strategy that went 

beyond simple arrests or weapons confiscations. They would allow the U.S.-based associates of 

a Mexican drug cartel to continue acquiring f1reanns uninterrupted, In doing so, they hoped the 

weapons, after they were recovered at crime scenes in Mexico, could be traced and linked to 

cartel operatives including possible high-level financiers. suppliers, and possibly even king-pins. 

The operation sought to achieve its lofty goals by focusing on the ringleader of the weapons 

smuggling syndicate they had identified: Manuel Celis-Acosta. Celis-Acosta was using a thenunknown number of straw-purchasers, including Jamie Avila, to purchase weapons. 

In January 2010, ATF partnered with the U.S. Attorney's Office for the District of Arizona and 

applied to Justice Department headquarters in Washington for funding through rhe Department's 

Organized Crime Drug Enforcement Task Force (OCDETF) program. As senior Justice 

Department officials in Washington felt \'1e opeention had great promise, it won approval and 

additional funding. Operation Fast and Furious was reorganized as a Strike Force including 

agents from ATF, FBI, the Dmg Enforcement Administration (DEA), and the Immigration and 

Customs Enforcement (lCE) component of the Department of Homeland Security. ATF Agent 

John Dodson, who would later help blow the whistle on what occurred, was among the agents 

transferred to Phoenix to help with the operation as a result of the designation. 

The Strike Force designation also meant that the U.S. Attorney's Office - rather than ATFwould run Fast and Furious. At the time, the U.S. Attorney's Omce in Arizona was led by 

Dennis Burke, a new political appointee who had previously served as Chief of Staff to then 

Arizona Governor and now Homeland Security Secretary Janet Napolitano. Earlier in his career, 

Burke had worked with former White House ChiefofStaffRahm Emanuel on gun control 

legislation as a UB. Senate staff member. 

The newly organized Strike Force, led by the U.S. Attorney's olIice, gave Operation Fast and 

Furious a chance to utilize sophisticated Juw enforcement techniques such as federal wire 

intercepts - more commonly known as wiretaps. The use of advanced techniques like wiretaps, 

which require a court order, also meant that Justice Department oftlcials in Washington, D.C., 

would have to playa critical role. Federal law requires celiain senior officials to review 

evidence and certifY the necessity of wiretaps and other techniques. 

During Fast and Furions, A TF agents were directed to monitor actual transactiom between 

Federal Firearms Licen.,ces (gun Mores) and straw purchasers like Jamie Avila. After the 

purchases, A TF sometimes conducted surveillance of these weapons with assistance from local 

police departments. Such surveillance included following the vehicles of the straw purchasers. 

Frequently, the straw purchasers transferred the weapons they bought to stash houses. In other 

instane,es, they transferred the weapons to third parties. 

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To achieve the goa! of letting weapons lead law enforcement to senior criminal figures, 

Operation Fast and Furious embraced a controversial tactic that outraged some veteran A Tf 

agents: gunw.lking, In Operation Fast and Furious, it was not that some weapons got away from 

agents, but rather that agents were purposefully directed to allow the flow of guns from straw 

purchasers to third parties, Instead of trying to interdict the weapons, A TF purposely avoided 

contact with known straw purchasers or curtailed surveillance, allowing the guns to fall into the. 

hands of criminals and bandits on both sides ofthe border, ATF agents have explained (hat this 

practice was at odds with their core training, As olle agent explained: 

When we should have done something and it wasn 'I, you have let il walk There has to be 

an active decision . .. a choice is made to allow it to walk. It is not like something got 

away from you or you lost it. {(a suspect beats you in a foot chase and he gets away. you 

didn '( let him walk, you just lost the chase, So that', what walking is, 

During Operation Fast and Furious, law enforcement agents assigned to the task force allowed 

approximately 2,000 illegally purchased weapons walk away from gun stores, I n some instances 

over the year and a half that Fast and Furious was conducted in the field, gun store owners 

expressed concern to A TF that they felt uncomfortable making repeated sales to individuals they 

suspected or knew were involved in criminal activity, ATF agents and prosec,utors from the U,S, 

Attorney's office repeatedly reassured slore owners that weapons were being actively tracked 

and their sales not only posed no danger to the pUblic, but would actually assist law enforcement 

in bringing dangerous criminals to JUSTice, They were never told of the operatioll's real strategy 

and were encouraged to continue making sales to known straw-buyers and contacting ATF with 

details after sales occurred. 

Extent of Fast and Furious' Failure Known alll,f Conclusion 

Shortly after Operation Fast and Furious began in the fall 0[2009, ATF had identified a number 

of suspected low-level straw-purchasers and the smuggling syndicate'S ringleader, Manuel CelisAcosta, Although some field agents and officials in Washington had long ago begun to feel 

uncomfortable with Operation Fast and Furious, it was not until after the death of Border Palrol 

Agent Brian Terry that its field operations finally ended, 

Washington-based Justice Department officials had earlier discussed bringing Attorney General 

Eric Holder to Phoenix for a triumphant press conference with Arizona U.S. Attorney Dennis 

Burke to herald the conclusion oflhe Department's flagship Grearms trafficking case, In the 

aftermath or Agenl Terry's death, the task of announcing indictments at a press conference fell to 

A Tf Phoenix Division Special Agent in Charge William Newell and Burke, Holder did not 

attend, 

At the press conference on January 25, 2011, Newell triumphantly announced the indictment of 

twenty members of all arms trafficking syndicate that had been supplying weapons to the Sinaloa 
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Cartel- Mexico's largest and most powerful cartel led by the notorious Joaquin "EI Chapa" 

Guzman. The indictments included the syndicate's ringleader, Manuel Celis-Acosta and 

nineteen low-level straw-buyers. What Newell did not mention, however, was that agents were 

aware of Celis-Acosta's role almost from the beginning, as well as that of his lower-level 

subordinates who had also been indicted. Newell also did not discuss Operation Fast and 

Furious' other shocking fallures, of which by this time he was also aware. 

Following Celis-Acosta's "ffcst, ATF finally had the chance to confront the syndicate's 

ringleader with the trouble he faced and begin the deal making process intended to ensnare his 

higher level cartel associates - the links that ATF believed could fulfill the goals of bringing 

senior figures in the Sinaloa Cartel to justice. 

When Celis-Acosta informed ATF of the names of the two cartel contacts for whom he had been 

working, agents quiekly came to learn thai these two U.s.-based cartel contacts were already 

known to the Department ofJus!iee. The DEA and FBI had joimly opened a separate 

investigation specifically targeting these two cartel associates, and, by January 2010, had 

collected a wealth of information on them - including their dealings with Manuel Celis-Acosta. 

In exchange for one associate's guilty plea to a minor charge of "Alien in Possession ofa 

Firearm," both of these cartel associates became FBI informants and were considered essentially 

unindictable well before Operation Fast and Furious concluded. One ATF official would later 

say that the discovery that fhe primary targets of their investigation were not indictable was a 

"major disappointment." Adding to the information-sharing failure, DEA had actuaUy provided 

Celis-Acosta's cartel connection to ATF in December 20()9 in an effort to ensure that ATF's 

efforts in Operation Fast and Furious were not duplicative. 

Newell shocked colleagues by telling the puhlic the exact opposite of what had occurred in the 

operation. As reports about gunwalking had surfaced after Agent Terry's death, when asked at 

the press conference whether ATF had allowed guns to walk, Newell offered a memorable 

response: "Hell, no." ATF agents who blew the whistle on Operation Fast and Furious have 

described their rc·action to this denial in no uncertain terms: 

ATF Agen! Peter Force!li: 

I was appalled, because it was a biatant lie. 

A TF Agent Larry Alt: 

Candidly, my mouth fell open. I was asked later by the public ir,farmation qfjlcer for our 

divisioll, . and I told him that I thought that- I was just astounded that he made that 

statement. 

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The Department of.luslice's Contempt Against the American Peonle 

Mlleh of Operation Fast and Furious remained a mystery when the Department of Justice 

forcefully dismissed whistleblower accusations and denied that anything improper had occurred 

to Congress 011 February 4, 2011. Why, after all, would anyone be so stupid as to think arming 

drug cartels was a good idea? 

A congressional investigation and reports by journalists utilizing whistleblowers and other 

sources have shed immense light on what occurred and why. Little of what is known today, 

however. came as a result of formal Justice Department disclosures. Instead, most orthe 

information about what happened has come from whistleblowers and other sources with 

documentation that investigators have used to piece together the facts and confront 0 mcials who 

had responsibilities in Operation Fast and Furious. 

Still, some important areas remain cloaked in secrecy: 

How did the Justice Department finally come to the conclusion that Operation Fa.t 

and Furious was l'fundamentaHy flawed"? 

On February 4,2011, the Department ofJustice denied whistleblowcr aliegations that 

guns in Operation F as! and Furious had been allowed to "walk" to Mexico and defended 

the Operation itself. Ten months later, on December 2,2011, the Justice Department 

formally withdrew this denial and acknowledged that Fast and Furious was 

"fundamentally flawed." [n responding to Congress, however, the Justice Department 

has taken the position that it will not share its internal deliberations related (0 Operation 

Fast and Furious that occurred after it denied anything inappropriate occurred on 

February 4, 20 J 1. This position effectively denies Congress and the American people 

information about: 

o The Justice Department switching its view from denying whistleblower allegation 

to admitting they were true. 

o Hiding the identity of officials who led the charge to call whistleblowcrs liars and 

retaliated against them. 

o The reactions of top officials when confronted with evidence about gunwalking in 

Fast and Furious, including whether they were surprised or were already aware. 

o The Justice Department's assessment of responsibility for officials who knew 

about reckless conduct or were negligent 

o Whether senior officials and political appointees at fault in Operation Fast and 

Furious were held to Ihe same standards as lower level career employees whom 

the Department has primarily blamed. 

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While the Department of Justice claims that divulging this information would have a 

"chilling effect" on future internal deliberations, virtually any agency could use this bland 

argument on nearly any topic. Congress. under both Democratic and Republican 

leadership, has never recognized internal agency discussions as privileged and protected. 

This claim by the Department of Justice is also at odds with a previous decision to make 

internal deliberations available to Congress in the midst of a 2007 investigation into the 

dismissals of several U.S> Attorneys. 

No one disputes lhat the Justice Department has this critical information - the Justice 

Department's flimsy rationale for withholding this information is simply about avoiding 

accountability for what occurred. 

What senior officials at Ihe Department of Justice were lold aboul or approved the 

controversial gunwalkillg tactic.lltal were at the core ofth. operalion's strategy? 

Operation Fast and Furious was not a local effort. It was the Justice Department's 

flagship arms trafficking investigation for a year and a half. Justice Department 

headquarters in Washington approved it as part oflhe Department's Organized Crime 

Drug Enforcement Task Force (OCDETF) program that put it under the control oflhe 

Arizona U.S. Attorney's offiee. The OCDETF de,ignation also meant Fast and Furious 

would be able to use advanced investigative techniques, such as wiretaps, whic.h by law 

required senior headquarters omcials to review operational details. 

Although they helped write the February 4, 20 J I, letter to Congress denying that ATF 

allowed gunwalking to occur, some senior officials> alter being conl,'onled with 

evidence - have had to acknowledge that they did know about gunwalking. They have, 

however, consistently denied that they knew critical details about the gunwalking that 

took place in Operation Fast and Furious. 

These denials are peculiar because top officials across the Justice Department received 

brietlngs on Operation Fast and Furious that included both information on surveillanc·e 

techniques and the fact that hundreds of weapons were turning up at crime scenes in 

Mexico. Adding to suspicion that senior Justice Department officials knew far more than 

they have admitted, the Justice Department has refused to turn over documents irom the 

field that were supplied to senior officials in Washington. While the Department has 

argued that turning over such materials to Congress could jeopardize prosecutions. it has 

offered no mutually agreeable accommodation for reviewing them - such as making them 

available to be reviewed but not copied, or giving Congress a complele list and brief 

description of responsive documents. After repeated false denials about Operation Fast 

and Furious, the Justice Department's unwillingness to work with Congress casts doubt 

on its motives. 
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How did inter-agency cooperation in a nationally designated Strike Force fail so 

miserably in Operation Fast and Furious? 

Operation Fast and Furious tried to use outrageous gunwalking tactics in an effort to 

identify top cartel associates. Although the operation let nearly 2.000 weapons walk out 

of Phoenix area gun stores to the Sinaloa Cartel in furtherance of this goal. it never had a 

chance of success. While some senior Justice Department officials, including Assistant 

Attorney GeneraJ Lanny Breuer, head of the Department's Criminal Division, embraced 

the view that gunwalking could be justitlcd, even the>' would now have to agree that Fast 

and Furious never had a chance. The reason: the Justice Department already knew abollt 

the cartel contacts for Manuel Celis-Acosta's smuggling syndicate, and the contacts were 

on their way to becoming essentially unindictable FBI inrormants. Even more blatant, 

the DEA had laid ATF aboutCelis-Acosta's cartel connections at the beginning ofFasl 

and Furious as these contacts were targets of a separate investigation. 

The reforms born out oflhe tragic September 11th terrorist attacks were designed to put a 

stop to the problem offederal agencies "stove-piping" information. In a Strike Force 

operation like Fast and Furious that was specifically designed by the Justice Department 

to bring together resources trom its component agencies including ATF, FBI. DEA, and 

Justice Department headquartcrs~ the failure of coordination and information sha.ring in 

Operation Fast and Furious indicates a likelihood of monumental management 

dysfunction. To date, the Justice Department has not indicated what oftlcial had the 

responsibility to coordinate and de-conflict law enforcement efforts across agencies. 

A core goal of c.ongressional oversight is to identilY agency mismanagement and ensure 

that appropriate legislative or administrative adjustments are implemented. Until now, 

the Justice Department's desire to protect senior officials from embarrassment from 

Operation Fast and Furious has superseded its Willingness to work cooperatively with 

Congress to address a massive information sharing and agency coordination problem that 

Congress and the Bush Administration worked together to solve a decade ago. 

Despite a subpoena, the Justice Department has refused to produce documents related to 

how this clear failure occurred through multiple agencies and the involvement of top 

Justice Officials who had responsibilities to monitor multi-agency efI01tS. While the 

Justice Department has maintained that it is concerned about exposing cartel associates 

with informant status to scrutiny, the Department has rehuffed Committee efforts to 

examine the decisions and failures of offtdals without looking at the informants 

themselves. The fact that the Committee has already learned the identity of the associates 

and the outrageous crimes they committed before being given informant status, stands in 

contrast to the Department's suggestion that its reason for non-cooperation is the 

informants' well-being. 

When the Committee issued a subpoena to U.s. Attorney General Eric Holder on October 12, 

2011, for Justice Department documents, the Committee specified 22 c.ategories of documents it 

required the Department to produce. Department representatives specific.ally confirmed their 

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understanding of each category. To date. the Department has not produced any responsive 

documents for 12 of the 22 categories. The Department has not completely ibifllied any ofthc 

10 categories for which documents have he.en produced. 

For over a year, the Department has issued false denials, given answers intended to misdirect 

investigators, sought to intimidate wilnesses, unlawfully withheld subpoenaed documents, and 

waited to be confronted with indisputable evidence before acknowledging uncomfortable lac!s. 

The Justic.e Department's demonstrahl. contempt for the congressional investigation has 

inflicted harm on the people oftwo nations seeking the truth -- and very pointedly on the family 

of fallen Border Patrol Agent Brian Terry and ATF whistle blowers who now face retaliation in 

the wake of their own heroic efforts to expose wrongdoing. 

Answers (or the Familv of Border Patrol Agenl Brian Terrv 

Three days after his murder in Arizona, on December IR, 2010, Brian Terry's body arrived back 

in Michigan for burial. His fumily waited on the tarmac in Detroit. Bagpipes played as Brian's 

casket was unloaded from the plane, then loaded into a hearse lor a police escort to the funeral 

home. This was not the holiday homecoming that the Terry family had envisioned for Brian. In 

the words of his family: 

Brian did ultimately come home that Christmas; we buried him not far/rom the house 

that he was raised injusl prior to Christmas day. The gifts thai Brian had picked out with 

such thought and care began to arrive in the mail that same week. With each delivery, we 

felt the indescribable pain o/Brian:, death, but at the same time also remembered his 

amazing love and spirit. 

One month later, federal omcials offered the Terry family scant details ahout Brian's death and 

refused to answer many questions. Brian!s brother and stepmother walked out of the meeting 

with law enforcement otliciais, believing that the government was not being honest with them 

about Brian's death. 

The following week, it became clearer to the Terry family why the Department of Justice had 

acted evasively. News reports began to emerge that the weapons found at Brian's murder scene 

had linked back to something they had never heard ofbeforc: Operation Fast and Furious. As 

Brian Terry's mother explained, "[We] never really got a call about any1hing like that until it was 

brought out in the newspapers.. I was -- just flabbergasted. I didn't believe it at first." 

The Terry family wanted answers, but no one in federal law enforeement would help. Brian's 

COLIS in, a Secret ServiC'.e agent, testified at a .Tunc congressional hearing that 'Ithere is a level of 

frustration for the family." Terry's mother, when asked what she would say to Ihe person who 

authorized Operation Fast and Furious, responded, "\ don't know what I would say to them, but I 

would like to know what they would say to me." 

In August 2011, the Terry family made a motion to intervene as crime victims under the Crime 

Victims' Rights Act as a party in the case against Jamie Avila, the straw-purchaser oflhe 

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weapons found at the scene of Agent Terry's murder, Inexplicably, the Justice Department med 

a highly unusual motion against the Terry family, claiming that the defendant's "offer.ses are too 

factually and temporally attenuated from the murder - if connected at all." Only after months of 

pressure from Congress and the public did the Department finally withdraw its objection to the 

Terry family's motion. 

In October 2011, the Terry family again wrote to Congress seeking answers and explaining that 

the "family remains unsatisiled with the answers provided by government officials to date, not 

only about the genesis and operation of Fast and Furious, but what actually occurred 

precipitating Brian1s death." 

Three weeks later, Attorney General Eric Holder testified before the Senate Judiciary 

Committee. Instead of providing answers, the Attorney General's testimony brought additional 

pain to the Terry family when, despite evidence to the contrary, he stated, "it's unfair to assume 

that mistakes from Fast and "urious directly led to the death of Agent Terry." He also declined 

to apologize to the Terry family when asked by a Senator if he believed he should do so. 

The testimony was certainly not what lhe Terry family had hoped to hear. Brian's mother "sat in 

a chair and cried" upon watching it, the family said. Brian's father said, "I think they arc liars 

and I would tell them that. \Vbat would I say to Eric Ho Ider'! They WOll Id not be nice words." 

Brian's hther also said, "Nobody wants to outlive their son. It's just hard. I can'/. sleep, just 

thinking about him - I love him very much." 

In March 2012, as more details emerged about how a lack ofcoorJination within the Justice 

Department had further botched Fast and Furious, the Terry family again learned these new facts 

through media reports - not from Department officials. This information "sickened" the family, 

who observed that had "this simple piece of intormation been shared among the different law 

enforcement agencies in Arizona. , , U.S. llorder Patrol Agent Brian Terry would still be alive." 

While the Justice Depanment's admissions have largely eome as a result of being confronted 

with indisputable tacts, the painfully slow process of getting the truth has been a continuing 

frustration for the Terry family. They stili do not have tl,e all the facts about the circumstances 

surrounding Brian Terry's murder. 

In life, many orBrian's friends knew him as "Superman." The local gym in Arizona where 

Brian worked out had to order special, 150 lb. dumbbells for him, due to his impressive strength. 

The dumbbells arrived at the gym the week following Brian's death, and now sit in a corner of 

the gym, in a shrine to Brian, not for use by others. 

]n death, Brian, a Marine veteran! stands as a hero who gave his life for his country. The tragic 

circumstances surrounding his murder. however, remain unresolved due to the Justice 

Department's stubborn refu,sal to provide critieal documents and fully cooperate with the 

investigation of Operation Fast and Furious. As Brian's sister said of his family's desire to know 

the full truth, "Brian was about making a difference and justice. And I just teel that this country 

owes it to him, becau;.;e he spent his whole life fighting for this country some way or another.'l 

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Whis/leblowers Len 10 Twist in the Wind 

ATF agents distraught in the aftermath of Agent Terry's death stm1ed blowing the whistle in an 

effort to stop the reckless tactics of Operation Fast and Furious and reveal what had happened. 

A TF Special Agent John Dodson was the first to contact Congress, reaching out to the omce of 

Senator Chuck Grassley in January 2011 with allegations of gunwalking. 

Upon learning afAgent Dodson's contact with Senator Grassley's staff in late January 201 J, 

A TF officials were clearly displeased. They ordered him to write a memo to A TF leadership 

detailing exactly what he told Senator Grassley's staff His supervisors called him on his cell 

phone, his home phone, and even contemplated personally visiting his home late Friday night in 

an attempt to manage the impaet of his allegations. Only after Senator Grassley leomed ofthis 

harassment and wrote to the Justice Department the. following Monday did ATF leadership drop 

its demand for Dodson to write a summary of his contact with Senator Grassley's staff: Under 

federal law, no one can interfere with such an effort to contact Congress. 

One confidential witness told Congress that he overheard Scot Thomasson, chief A TF 

spokesman, say early on in the congressiDnal inquiry into Fast and Furious: ':Vle need to get 

whatever dirt we can on these guys [the whistleblowers] and take them down." The actions of 

the Department of Justice towards the whistleblowers over the next year indic-ate that these 

words were part of a concerted eff0l1 at retaliation. 

On June 29, 20 11, a reporter asked the Committee to comment on documents he had received 

related to Agent John Dodson during the time period when Fast and Furious OCCUlTed. The 

Department of lustice had yet to provide these documents to the Committee pursuant to the 

March 31, 2011, subpoena of A TF, but had apparently provided them to a reporter in an attempt 

to undermine Dodson's credibility. The Committee worked with the reporter and his news 

organization to examine the claims the doeuments purportedly supported and made the argument 

that the doeuments were part of an underhanded strategy to smear a whistleblower. The news 

organization eventually decided against running the story. 

Congressional investigators later determined that the individual who was behind the leaked 

doc.umcnts was the U.S. Attorney for the District of Arizona, Dennis Burke - the Obama 

Administration politicaJ appointee who led the office in ehargo of Operation Fast and Furious. 

Burke later testified th.l the reporter eontacted him, and that he believed the reporter had already 

seen the documents or had them read to him from someone else in (he Department of Justice. 

Instead of e-mailing the documents to the reporter in Washington, Burke, who was in Arizona at 

the time, e-mailed them to a thend of his in Washington, who then printed out the documents 

and then delivered them to the reporter personally. These efforts successfully kept Burke's 

fingerprints 0ffofthe leak until he publicly admitted his role more than two months after his 

Allgust 2011 resignation as hlame for Fast and Furious spread. 

Since Dodson became a whistleblower, ATF has transferred him to Greenville, South Carolina, 

where he eurrently serves as an investigative agent, A confidential witness has told the 

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Committee (hat ATF made the unusual decision not to reimburse him for $30,000 in moving 

expenses. The real motive for this decision remains unknown. 

On April 25, 2011, Committee investigators subpoenaed another whistleblower, Special Agmlt 

Larry Alt, to provide testimony about Operation Fast and Furious. Agent Alt notified his 

superiors about hi; impending testimony. The next day, AT!' Internal Affairs notified Alt that 

they wanted to talk with him about another matter. On May 5, 2011, Agent Alt met with A TF 

internal affairs investigators abollt allegations that All downloaded two prohibited applications to 

his government-issued phone. The total cost of these applicmions was eight dollars. 

Agent Alt adamantiy denied knowingly downloading the applications. Internal Affairs 

investigators searched All's phone and were unable (0 find either of them. The applications were 

also not compatible with the make and model oflhe phone issued to All. The timing oflhe 

Internal Affairs investigation into Larry Alt, and the apparent lack of evidence regarding the 

allegations against him, makes the motivation for the inquiry suspect at best. AI! was prevented 

from transferring ortiees and his eligibility fur promotions and pay raises barred during the 

pendency of the investigation - all supposedly over eight dollars in phone applications. 

Special Agent Peter F oreelli, a Group Supervisor in the A TF Phoenix Field Division, also 

experienced retaliation by the Depaltment of Justice for his role in blowing the whistle on rast 

and Furious. During his June 15,2011 testimony before Congress, Special Agent !'orcelli 

t.estitied candidly about the difficulties he encountered in getting the U.S. Attorney's Office in 

Arizona to prosecute certain ATF cases. The Justice Department eonfinned Agent Porcelli's 

concerns by transterring three high-profile cases involving ATF out ofiha! U.S. Attorney's 

omcc. 

During Agent Forcelli's June 15 testimony, the Chief of the Criminal Division of the Arizona 

U.S. Attorney's Office, Patrick Cunningham - who had been tasked by the Department of Justice 

with examining the trathfuiness of the whistleblowers' allegations - was at ATF headquarters in 

Washington, D.C. mining Porcelli's testimony for inaccuracies. Cunningham alleged to senior 

officials that Forcelli was being unlruthful during his testimony. Over the next several months, 

the Justice Department began publicizing documents relating to cases Forcelli had previously 

investigated at ATF in an effort to smear his (',haractcr and integrity as a Special Agent. These 

cases had nothing to do with Fast and Furious. 

In August 2011, the Office of the Inspector General began investigating Forcelli about one ofthc 

cases lhat the Department had publicized. In preparation for an interview with the OlG, the 

Arizona U.S. Attorney's Offic.e created a memo, dated August 10,2011, about a meeting its 

prosecutors had had with Forcelli three months earlier. The memo, written well-after-the-fact, 

characterized him as "visibly angry') during the earlier interaction, 

In the midst of this saga, during a phone call with the U.S. Attorney's Office in August 2011, 

prosecutors notified Agent Forcelli that any contact between him and any prosecutor in the U.S. 

Attorney's Office would need to be reported up the chain of command. Such u policy made it 

practically impossible for Agent Forcelli to work with tederal prosecutors in Arizona. 

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Due to this situation, ATF transferred Forcelli from the ATF Phoenix Field Division to ATF 

headquarters. Despite facing a considerable loss in the sale ofh!s house Forcelli pulled his two 

children out of school and moved with his family to Virginia in March 2012 to assume a desk 

job. 

In addition to stark individual experiences, the ATF whistleblowers have collectively described a 

climate of hostility and fear of reprisals since their deeisions to speak up about Operation Fast 

and Furious. Some have even learned that deeply personal information. unrelated to their jobs, 

has been dug up and placed in the hands of reporters and others. During a November 20] 1 

hearing, Senator Chuck Grassley asked Attorney General Holder to revenl the identity of a 

Justice Department official who had been caught participating in the leaking of doeuments to 

smear an ATF whistleblower. Instead of naming the official at the hearing, Holder decided to 

protect his identity and refused to answer the question. 

Brave whistleblowcrs at ATF, and gun store owners who were lured by federal authorities into 

making repeated sales to criminals during Operation Fast and Furious, must live in fear as a 

result of retaliation by Justice Depmiment officials who have yet to be publicly exposed for their 

role in Operation Fast and Furious. Until the truth is exposed about responsibility for bad 

decisions and a lack of leadership in Operation Fast and Furious, whistleblowers who came 10 

Congress will continue to face fear of reprisals. 

The Relationship ",ith Mexico 

Ciudad Juarez, across (he border from EI Paso, Texas, is the most dangerous city in the world. 

Fourteen hundred people were murdered in Juarez in 2008 - three times more than the highest 

number in any U.s. city- and this number increased to over 2,600 murders in 2009. On October 

20,2009, Ciudad's Juarez's leading newspaper proclaimed in wonderment: "Not One Person 

l'vfurdered Yesterday," That day, however, nine murders occurred in Juarez. 

In 2010, there were over 3,000 murders in the city. The violence in Juarez, and across Mexico, 

was increasing. 

Ciudad Juarez is considered "ground zero" in the drug war. Control of the trafficking routes in 

Juarez affords easy access to the United States. In 2008, the Sinaloa Cartel, headed by Joaquin 

"EI Chapo" Guzman. moved into Juarez in an attempt to wrest control of the lucrative routes 

from the Juare.l cartel. Forbes magazine 1abeled Guzman as its 55th most powerful person in the 

world, and Guzman once paid some $2.5 million in bribes to prison offieials to make a daring 

escape from a maximum security Mexican prison. 

In 2010, Guzman's regional enforcer in Juarez for the Sinaloa Cartel was Jose Antonio Torres 

Marrufo, also known as "E] Jaguar,'~ El Jaguar has a history of violent ac.ts against those who 

crossed the Sinaloa Cartel. He orchestrated an attack on a drug treatment clinic center in Juarez 

where he suspected rival cartel members were hiding. EI Jaguar's hooded gunmen forced clinic 

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patients into a conidor, lined them up, and shot 18 of them. As an ominous threat to members of 

the rival Juarez cartel~ EI Jaguar's men once skinned a rival cartel member's face and stitched it 

onto a soccer balL 

Three months into Operation Fast and Furious, EI Paso had emerged as a central hub for the 

transport of weapons being smuggled by Manuel Celis-Acosta's syndicate. Since the beginning 

of Fast and Furious, ATF intelligence analysts had noticed an eastern shift in weapons crossing 

the border - from Tijuana and Arizona to El Paso and Juarez. ATF leadership knew that Fast 

and Furious weapons were heading to the Sinaloa Cartel, and Attorney General Holder was sent 

several memos in 2010 notitying him that the Sinaloa Cartel was buying them. As one ATF 

agent in Mexico Vrho understood what was occurring observed, ';Chapo is arming for war," 

By the spring of 20 I 0, six months after Fast and Furious began and intense weapons purchases 

by the Sinaloa Cartel, EI Jaguar's men had won the battle with the Juarez Cartel and took control 

oftrafficking routes through Ciudad Juarez. 

In October 2010, cartel members kidnapped Mario Gonzalez Rodriguez, the brother ofthe 

Attorney General for the Mexican state ofChlhuahua, where Juarez is located. The cartel posted 

a video of the kidnapped Rodriguez online, in which he alleged, under duress, that his sister had 

ordered killings at the behest of the Juarez cartel. The video went viral and became a major 

news story in Mexico. Two weeks later, Mexican authorities found Rodriguez's body in a 

shallow grave. In a subsequent shootout with cartel members responsible for the murder, poliee 

arrested eight and recovered sixteen weapons. Two of these weapons traced back to Operation 

Fast and Furious. 

Although the Department of J listiee learned that these weapons traced back to Fast and Furious 

almost immediately, no one informed the rvtexican government. Net until congressional 

investigators were on the verge of learning the truth about the connection did an A TF agent in 

Mexico finally tell the Mexican Attorney General in June 20]1- seven monlhs after Rodriguez's 

murder. 

In May 2011, cartel members fired a powerful Barrett .50 caliber rifle at a Mexican Federal 

Poilee helicopter in the state of Michoacan, forcing it to make on emergency landing. The attack 

wounded two of the officers on board. A subsequent raid on those responsible for shooting 

down the helicopter resulted in lhe deaths of 11 cartel members and the arrest of 36 more. A 

cache of more than 70 rifles were recovered at the scene, including several that traced back to 

Operation Fast and Furious. 

Though the President of Mexico, Felipe Calderon has been outspoken about demanding the 

United Stales curb the flow of its firearms into Mexico, he hos taken a diplomatic approach in 

responding to Fast and Furious given the U.S. role as a key trading partner for Mexico. The 

United States is the largest source of foreign direct investment in Mexico, and the United States 

is, by far, Mexico's largest trading partner - over 80% of Mexican exports are sent to the United 

States. Mexico's continued growth .Iso has great rotential to help increase U.S. exports that 

c.reatc American jobs. 

15 
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Other Mexican officials, though, have been more pointed with their deep concerns about what 

the Justice Department allowed to occur. The president oflhe Mexican Congress, the Chamber 

of Deputies, has said that Fast and Furious was 'Ia serious violation ofinternationallaw." The 

Chairman of the Justice Committee in the Chamber of Deputies commented that there were "150 

cases of injlll'ies and homicides" from weapons that A TF agents allowed to walk into Mexico. 

And over a year after Fast and Furious was first exposed, the program still remains on the minds 

afthe Mexican press. In April, the very first question from the Mexican press during a trilateral 

joint press conference with President Calderon, President Obama, and Prime Minister Stephen 

Harper of Canada was about the trafticking of weapons from the U.S. to Mexico. 

The people of Mexico have suffered tremendous loss due to cartel violence. A U.S. operationkept secret from Mexican authorities - that sought to arm cartels has created justifiable outrage 

among our neighbors to the south who seek the truth about what happened and who was 

responsible. 

The congressional investigation into Operation Fast and Furious has yielded significant results. 

[t forced the Department of Justice to withdraw its false denial of whistle blower allegations. 

Dennis Burke - the U.S. Attorney for Arizona who headed the office that led Operation Fast and 

Furious - was forced to resign. Attorney General Eric Holder now admits the operation was 

"fundamentally flawed" and that guns from the operation will continue to show lip at crime 

scenes in Mexico and the United States "for years to come." Attorney General Holder has also 

committed to ensuring that such an operation will never happen again. 

Nevertheless, Operation Fast and Furious' outrageous tactics, the Justice Department's refusal to 

fully cooperate with the investigation, and efforts to smear and retaliate against whistlehlowers 

have tainted the institutional integrity of the Justice Department. Only 567 of the nearly 2,000 

weapons from the operation have been recovered and, as the Attorney General admits, the effects 

from Fast and Furious are far from over. 

The Justice Department's initial denials that anything inappropriate occurred, and its insinuation 

that whistle blowers were not telling the truth, indicated an early mindset of a Department more 

concerned about appearances than aclual truth. Making matters worse, a pattern of questionable 

behavior ensued that heightened concerns. Attorney General Holder initially expressed 

puzzlement when asked when he first heard of Operation Fast and Furious at a c.ongressional 

hearing, but neither he nor his staff ever acknowledged that memos on the flawed operation had 

been addressed to him until they were publicly uncovered several months Jater. Even later in the 

investigation, senior political appointees in the Department's Criminal Division were forced to 

acknowledge evidence that they had known abollt reckless gunwalking - and did nothing about it 

- even though the Attorney General had insisted thal such tactics had always been against 

Department policy. Several other senior officials who attended briefings on Operation Fast and 

Furious repeatedly insist.ed they could not recall key detaits about what they knew. In an 

16 
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interview, Attorney Geneml Holder's former Deputy Chief of Staff stated that he could not recall 

specific incidents or even his own actions 82 times over the course of a three hour interview. 

Perhaps the most damning assessments ofthe Department's handling oflhc fallout from 

Operation Fast and Furious have come from two Justice Department officials. Kenneth Melson, 

the former Acting AFT Director during the pendency of Fas! and Furious, told Congress lhat, "it 

appears thoroughly to us that the department is really trying to figure out a way to push the 

information away from their political appointees at the department." Patrick Cunningham, who 

had been tasked by the Justice Depart.'llen! with investigating ATF whistleblower allegations of 

gunwaiking, would later invoke his Fifth Amendment privilege against self· incrimination in 

refusing to answer questions about his work. 

The suggestion ofve!eran Justice Department officials that a cover-up potentially involving 

criminal conduct may have occurred, even after Fast and Furious' Held operations ended, 

underscores the Justice Department's inability to investigate itself or decide wh.t information 

should be withheld from the Congressional investigation, 

In dealing with a prostitution scandal in Cartagena, Columbia, the Secret Service has 

demonstrated that agencies can conduct investigations swiftly, determine responsibility, and act 

decisively to hold wrongdoers accountable. The Justice Department's response, however, has 

been the polar opposite. More than a year after field operations of Fast and Furious cnded, the 

Attorney General still insists he needs more facts before holding individuals responsible for 

facilitating the transfer of weapons to Mexican drug cartels to aewun!. To many Americans, this 

inaction creates the impression that the Department is trying to run out the clock on the relatively 

short lifespan of political appointments. 

The Justice Department's fail lITe to respond appropriately to the allegations ofwhistleblowers 

and to cooperate with Congressional oversight has crossed the line of appropriate conduct for a 

government agency. Congress now faces a moment of decision between exerting its full 

authority to compel an agency refusing to coopcrate with congressional ove"ight or accepting a 

dangerous expansion of Exccu!ive Branch authority and unilateral action allowing agencies to set 

their own terms for cooperating with congressional oversight. 

]7 
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DRAFT 

RESOLUTION RECOMMENDING THAT THE HOUSE OF 

REPRESENTATIVES FIND ERIC 1'1, HOLDER, JR., A ITORNEY GENERAL, 

U,S, DEPART~ENT OF JUSTICE, 

IN CONTEMPT OF CONGRESS FOR REFUSAL TO 

COMPLY \VITH A SUBPOENA DULY ISSUED BY THE 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

REPORT 

OF THE 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

UNITED STATES HOUSE OF REPRESENTATIVES 

The form of the resolution that the Committee on Oversight and Government Reform 

would recommend to the House of Representatives for citing Eric II. Holder, Jr., Attorney 

General, U,S, Department of Justice, for contempt of Congress pursuant to this report is as 

follows: 

Resolved, That Eric H, Holder, Jr" Attorney General of the United States, shall be found 

to be in contempt of Congress for failure to comply with a congressional subpoena, 

Resolved, That pursuant to 2 U.S.C, §§ 192 and 194, the Speaker ofthe House of 

Representatives shall certify the report of the· Committee on Oversight and Government 

Reform, detailing the refusal of Eric H, Holder, Jr., Attorney General, U,S. Department 

of Justice, to produce documents to the Committee on Oversight and Government 

Reform as directed by subpoena, to the United States Attorney for the District of 

Columbia, to the end that Mr. Holder be proceeded against in the manner and form 

provided by law, 

Resolved, That the Speaker of the House shall otherwise take all appropriate action to 

enforce !hi.' subpoena, 
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DRAFT 

Table of Contents 

I. Executive Summary, '" "" ".,.,,"" "" .,,"" ""'"'''''''''''"''' "", .. """ .. '''''' '''''' ", .... i 

n, Authority and Purpose"."."",,,,,. """""""""'" .,,'" .'." .. " "." .... ".,,""" """" .. .1 

III. Background on the Committee's Investigation ......... """"" " .... """",," " ... " .. "" .. 2 

IV. Operation Fast and Furious: Breakdowns at All Levels of the Department of Justic,c"""J 

A. The AlF Phoenix Field Division." ... "" .... " ..... "."" .......... " ............. ,, .......... 3 

B. The United States Attorney's Office for the District of Arizona ... """ .. ,,, .... ,,, .. ,, ...... 5 

C. ATF Headquarters .................. , ... " .......... , .. "" ..... " "" .... ' .............. " ........... 6 

D. The Criminal Division ....... "." ......... ,'" ..... " ....... ".7 

I. Coordination with ATF ..... "" ............................... " .................. 7 

2. Wiretaps, .. , ... , ... "", ......... "" ......... ' ....... " ............. "."""'''''' " .. , .. " "" .. 9 

E, The Office of the Deputy Attorney General.. ...................................... "" ......... 10 

V, The Committee's October 12,2011 Subpoena to Attorney General Holder ..... " .. " ....... "ll 

A, Events Leading Up to the SUbpoena .... "." ........... " ..... " ... ,,, ."" " .......... " .. II 

B. Subpoena Schedule Requests,,, .................. ,, ....... ,, .... ,," "" .... , .......... " " ...... .14 

C, Attempts of Accommodation by the Committee, Lack of Compliance by the Justice 

Department., .. , ..... " .. , ..... '" ........ " ........ , ................ " ... , .............. , .......... ,,21 

1. In Camera Reviews, ..... " ...... " .... " ........... " ..... " .. "'''' """'" " .. , ... , .. , , .. ,22 

2. Redacted Documents,. , ..... "" ..... " .... , .. , ........ " ...... ' ..................... , .... , " .. 22 

3. Privilege Log,., ... , ..... , ... , .. , .. ,., ... , .... "" ",,, ......... ,, .. , .. ,, .... ,, ., ......... " 24 

4. Assertions of Non-Compliance , '''''' ..... ' ...................... "... '" '" ...... 25 

5, Failure to Turn Over Documents ... " .. ,,,, '''''' " .. "" '" ",."". ""'"'''''''' .. " ... ,,37 

VI. Historical Perspectives on Contempt, ........... ,"'," ... , ......... "' .... , , .. ' ....... " ..... , .. ,,38 

A. Past Instances of Contempt" .... ,." ...... " ......... " """ , ........ , ......... ,,, .... , .... 38 

B. Document Productions .. ", ................... "" .... '" ......... , ............. ' ........... , ..... ,,41 
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DRAFT 

I. Executive Summary 

The Department of Justice has refused to comply with Congressional subpoenas related 

to Operation Fast and Furious, an Administration initiative that allowed around two thousand 

firearms to fall into the hands of drug cartels and may have led to the death of a U.S. Border 

Agent. The consequences of the lack of judgment that permitted such an operation to occur are 

tragic. 

The Department's refusal to work with Congress to ensure that it has fully complied with 

the Committee's efforts to compel the production of documents and information related to this 

controversy is inexcusable and cannot stand. Those responsible for allowing Fast and Furious to 

proceed and those who are preventing the truth about the operation from coming out must be 

held accountable for their actions. 

Having exhausted all available options in obtaining compliance, the Chairman ofthe 

Oversight and Government Reform Committee recommends that Congress find the Attorney 

General in contempt for his failure to comply with the subpoena issued to him. 
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DRAFT 

n. Authority alld Purpose 

An important corollary to the powers expressly granted to Congress by the Constitution is 

the implicit responsibility to perform rigorous oversight of the Executive Branch. The U.S, 

Supreme Court has recognized this Congressional power on numerous occasions. For example, 

in McGrain v, Daugherty, the Court held that "Ihe power of inquiry - with process to enforce itis an essential and appropriate auxiliary to the legislative function .. , , A legislative body cannot 

legislate wisely or eftectively in the absence ofinformation respecting the conditions which the 

legislation is intended to affect or change, and where the legislative body does not itself possess 

the requisite information "which not infrequently is true - recourse must be had to others who 

do possess il.,,1 Further, in Watkins v. Uniled States, Chief Justice Warren wrote for the 

majority: "The power of Congress to conduct investigations is inherent in the legislative process. 

That power is broad.,,2 

Both the Legislative Reorganization Act of 1946 (P,L, 79-601), which directed House 

and Senate Committees to "exercise continuous watchfulness" over Executive Branch programs 

under their jurisdiction, and the Legislative Reorganization Act of 1970 (P.L. 91-510), which 

authorized committees to "review and study, on a continuing basis, the application, 

administration and execution" of laws, codify the oversight powers of Congress. 

The Committee on Oversight and Government Reform is a standing committee of the 

House of Representatives, duly established pursuant to the rules of the House of Representatives, 

which arc adopted pursuant to the Rulcmaking Clause of the Constitution? I-louse Rule X grants 

to the Committee broad oversight jurisdiction, including authority to "conduct investigations of 

any matter withoul regard to clause 1, 2, 3, or this c,lause [of! louse Rule Xl conferring 

jurisdiction over Ihe matter to another standing committee.,,4 The rules direct the Committee to 

make available "the findings and recommendations of the committee, . , to any other standing 

committee having jurisdiction over the matter involved.'" 

House Rule XI specifically authorizes the Committee to "require, by subpoena or 

otherwise, the attendance and testimony of such witnesses and the production of such books, 

records, correspondence, memoranda, papers, and documents as it considers necessary.,,6 The 

rule further provides that the "power to authorize and issue subpoenas" may be delegated to the 

Committee chairman.7 The subpoenas discussed in this report were issued pursuant to this 

authority. 

The Committee's investigation into actions by senior officials in the U.S. Department of 

Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in designing, 

implementing, and supervising the execution ofOperatiol1 fast and Furious, and subsequently 

I McGrain v. Daugherty, 273 U.S, 135, 174 (1927), 

'Watkins v, United States, 354 U.S, 178, 187 (1957), 

3 U,S, CONST" art. I, § 5, clause 2, 

4 House Rule X, clause (4)(c)(2). 

5Id, 

6 House Rule Xl, clause (2)(m)(1)(B), 

, House Rule XI, clause (2)(m)(3)(A)(i), 
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DRAFT 

providing false denials to Congress, is being undertaken pursuant to the authority delegated to 

the Committee under House Rule X as described above. 

The oversight and legislative purposes of the investigations are (I) to examine and 

expose any possible malfeasance, abuse of authority, or violation of existing law on the part of 

the executive branch with regard to the conception and implementation of Operation Fast and 

Furious, and (2) based on the results of the investigation, to assess whether the conduct 

uncovered may warrant additions or modil1eations to federal law and to make appropriate 

legislative recommendations. 

In particular, the Committee's investigation has highlighted the need to obtain 

information that will aid Congress in considering whether reconsideration of the statutory 

provisions governing the approval of federal wiretap applications may be necessary. The major 

breakdown in tne process that occurred with respect to the Fast and Furious wiretap applications 

necessitates careful examination oftne facts before proposing a legislative remedy. Procedural 

improvements may need to be codified in statute to mandate immediate action in the face of 

highly objectionable information relating to operational tactics and details contained in future 

applications. 

The Committee's investigation has called into question the ability of ATF to carry out its 

statutory mission and the ability ofthe Department of Justice to adequately supervise it. The 

information sought is needed to consider legislative remedies to restructure A TF as needed. 

III. Background on the Committee's Investigation 

In February 2011, the Oversight and Government Reform Committee joined Senator 

Charles E. Grassley, Ranking Member ofthe Senate Committee on the Judiciary, in investigating 

Operation Fast and Furious, a program conducted by ATF. On March 16,2011, Chairman 

Darrellissa wrote to then-Acting ATF Director Kenneth E. Melson requesting documents and 

information regarding Fast and Furious. Responding for Melson and ATF, the Department of 

Justice did not provide any documents or information to the Committee by the March 30, 2011 

deadline. The Committee issued a subpoena to Melson the next day. The Department produced 

zero pages of non-public documents pursuant to that subpoena until June 10,2011, on the eve of 

the Committee's first Fast and Furious hearing. 

On June 13,2011, the Committee held a hearing entitled "Obstruction of Justice: Does 

the Justice Department Have to Respond to a Lawfully Issued and Valid Congressional 

Subpoena?" The Committee held a second hearing on June 15,2011, entitled "Operation Fast 

and Furious: Reckless Decisions, Tragic Outcomes." The Committee held a third hearing on 

July 26, 2011, entitled "Operation Fast and Furious: The Other Side ofthe Border." 

On October 11,2011, the Justice Department informed the Committee its document 

production pursuant to the March 31,2011 subpoena was complete. The next day, the 

Committee issued a detailed subpoena to Attorney General Eric Holder for additional documents 

related to Fast and Furious. 

2 
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DRAFT 

On February 2, 2012, the Committee held a hearing entitled "Fast and Furious: 

Management Failures at the Department of Justice." The Attorney General testified at that 

hearing. 

The Committee has issued two staff reports documenting its initial investigative findings. 

The first, The Department of Justice '8 Operation Fast and Furious: Accounts ofATF Agents, 

was released on June 14,2011. The second, The Department of Justice '8 Operation Fast and 

Furious: Fueling Cartel Violence, was released on July 26, 2011. 

Throughout the investigation, the Committee has made numerous attempts to 

accommodate the interests of the Department of Justice. Committee staIThas conducted 

numerous meetings and phone conversations with Department lawyers to provide clarification of 

and highlight priorities with respect to the subpoenas. Committee st'lffhas been flexible in 

scheduling dates for transcribed interviews, agreed to review certain documents in camera, 

allowed extensions of production deadlines, and agreed to postpone interviewing the 

Department's key Fast and Furious trial witness. 

Despite the Committee's flexibility, the Department has refused to produce certain 

documents to the Committee. The Department has represented on numerous occasions that it 

will not produce broad categories of documents. The Attorney GeneraJ has continued to 

withhold documents without any assertion of executive privilege by the President, and the 

Department has not prov ided a privilege log delineating with particularity why certain 

documents are being withheld. 

The Department's efforts at accommodation and ability to work with the Committee 

regarding its investigation into Fast and Furious have been wholly inadequate. The Committee 

requires the subpoenaed documents to meet its constitutionally mandated oversight and 

legislative duties. 

IV. Operation Fast and Furious: Breakdowns at Ail Levels of the Department of Justice 

The story of Operation Fast and Furious is one of widespread dysfunction across 

numerous components of the Department of Justice. This dysfunction allowed Fast and Furious 

to originate and grow at a local level before senior officials at Department of Justice 

headquarters ultimately approved and authorized it. The dysfunction within and among 

Department components continues 10 this day. 

A. The ATF Phoellix Field Division 

In October 2009, the Office of the Deputy Attorney General (ODAG) in Washington, 

D.C. promulgated a new strategy to combat gun trafficking along the Southwest Border. This 

new strategy directed federal law enforcement to shift its focus away from seizing firearms from 

criminals as soon as possible, and to focus instead on identifying members of trafficking 

3 
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DRAFT 

networks. The Office ofthe Deputy Attorney General shared this strategy with the heads of 

many Department components, including ATF.3 

Members of the ATF Phoenix Field Division, led by Special Agent in Charge Bill 

Newell, became familiar with this new strategy and used it in creating Fast and furious. In midNovember 2009, just weeks after the strategy was issued, Fast and Furious began. Its objective 

was to establish a nexus between straw purchasers of firearms in the United States and Mexican 

drug-trafficking organizations (D1'Os) operating on both sides of the United States-Mexico 

border. Straw purchasers are individuals who are legally entitled to purchase firearms for 

themselves, but who unlawfully purchase weapons with the intent to transfer them to someone 

else, in this case DTOs or other criminals. 

During Fast and Furious, A TF agents used an investigative technique known as 

"gunwalking" - thai is, allowing illegally-purchased weapons to be transferred to third parties 

without attempting to disrupt or deter the illegal activity. ATF agents abandoned surveillance on 

known straw purchasers after they illegally purchased weapons that A TF agents knew were 

destined for Mexican drug cartels. Many ofthese transactions established probable cause for 

agents to interdict the weapons or arrest the possessors, something every agent was trained to do. 

Yet, Fast and Furious aimed instead to allow the transfer ofthese guns to third parties. In this 

manner, the guns fell into the hands ofDTOs, and many would turn up at crime scenes. ATF 

then traced these guns to their original straw purchaser, in an attempt to establish a connection 

between that individual and the D1'O. 

Federal Firearms Licensees (FFLs), who cooperated with ATF, were an integral 

component of Fast and Furious. Although some FFLs were reluctant to continue selling 

weapons to suspicious straw purchasers, A TF encouraged them to do so, reassuring the FFLs that 

ATF was monitoring the buyers and that the weapons would not fall into the wrong hands. 9 ATF 

worked with FFLs on or about the date of sale to obtain the unique serial number of each firearm 

sold. Agents entered these serial numbers into AlF's Suspect Gun Database within days after 

the purchase. Once these firearms were recovered at crime scenes, the Suspect Gun Database 

allowed for expedited tracing ofthe firearms to their original purchasers. 

By December 18, 2009, A TF agents assigned to Fast and Furious had already identified 

fifteen interconnected straw purchasers in the targeted gun trafficking ring. These straw 

purchasers had already purchased 500 firearms. 10 In a biweekly update to Bill Newell, ATF 

Group Supervisor David Voth explained that 50 of the 500 tirearms purchased by straw b!lyers 

had already been recovered in Mexico or near the Mexican border. 1 1 These guns had time-tocrimes of as little as one day, strongly indicating straw purchasing. 12 

8 E-mail from [Dep'! of Justice] On behalf of Deputy Att'y Gen. David Ogden to Kathryn RuemmJer. et al. (Oct. 26, 

2009). 

9 Transcribed Interview of Special Agent Peter Porcelli, at 53-54 (Apr. 28, 2011). 

JO E-mail from Kevin Simpson, lnte.lligence Officer, Phoenix FlG, AlF, to David Voth (Dec. 18, 2009). 

" Id 

12 Jd. 

4 
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DRAFT 

Starting in late 2009, many line agents objected vociferously to some of the techniques 

used during Fast and Furious, including gunwalking. The investigation continued for another 

year, however, until shortly after December 15, 2010, when two weapons from Fast and Furious 

were recovered at the murder scene of U.S. Border Patrol Agent Brian Terry. 

Pursuant to the Deputy Attorney General's strategy, in latc January 2010 the ATF 

Phoenix Field Division applied for Fast and Furious to become an Organized Crime Drug 

Enforcement Task Force (OCDETF) case. In preparation for the OCDETF application process, 

the ATF Phoenix Field Division prepared a briefIng paper detailing the investigative strategy 

employed in Fast and Furious. This document was not initially produced by the Department 

pursuant to its subpoena, but rather was obtained by a confidential soure·e. The briefing paper 

stated: 

Currently our strategy is to allow the transfer of firearms to continue to 

take place, albeit at a much slower pace, in order to further the 

investigation and allow for the identification of additional co-conspirators 

who would continue to operate and illegally traffic firearms to Mexican 

DTOs which are perpetrating armed violence along the Southwest 

Border,13 

Fast and Furious was approved as an OCDETF case, and this designation resulted in new 

operational funding. Additionally, Fast and Furious became a prosecutor-led OCDETF Strike 

Force case, meaning that ATF would join with the Federal Bureau ofInvcstigation, Drug 

Enforcement Administration, Internal Revenue Service, and Immigrations and Customs 

Enforcement under the leadership of the U.S. Attorney's Office forthe District of Arizona. 

B. The United States Attorney's Office for the District of Arizona 

The U.S. Attorney's Office for the District of Arizona led the Fast and Furious OCDETF 

Strike Force. Although ATF was the lead Jaw enforcement agency for Fast and Furious, its 

agents took direction from prosecutors in the U.S. Attorney's Office. The lead federal 

prosecutor for Fast and Furious was Assistant U.S. Attorney Emory Hurley, who played an 

integral role in the day-to-day, tactical management of the case. 14 

Many A Tf agents working on Operation Fast and Furious came to believe that some of 

the most basic law enforcement techniques used to interdict weapons required the explicit 

approval of the U.S. Attorney's Office, and specifically from Hurley. On numerous occasions, 

Hurley and other federal prosecutors withheld this approval, to the mounting frustration of ATF 

agents. 1S The U.S. Attorney's Office chose not to use other available investigative tools 

common in gun trafficking cases, such as civil forfeitures and seizure warrants, during the 

seminal periods of Fast and Furious. 

11 Phoenix Group VB, Phoenix Field Division, ATF, Briefing Paper (Jan. 8,2010). 

14 TrlUlscribed Interview of Special Agent in Charge William "'ewell, at 32-33 (June B, 2011). 

15 Transcribed Interview of Special Agent Lany Alt, at 94 (Apr. 27, 2011). 
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DRAFT 

The U.s. Attorney's Office advised ATF that agents needed to meet unnecessarily strict 

evidentiary standards in order to speak with suspects, temporarily detain them, or interdict 

weapons. ATF's reliance on this advice from the U.S. Attorney's Oftice during Fast and Furious 

resulted in many lost opportunities to interdict weapons. 

In addition to leading the Fast and Furious OCDETF task force, the U.S. Attorney's 

Office was instrumental in preparing the wiretap applications that were submitted to the Justice 

Department's Criminal Division. Federal prosecutors in Arizona filed at least six ofthese 

applications, each containing immense detail about operalionallactics and specific information 

about straw purchasers, in federal court after Department headquarters authorized them. 

C. ATF Headquarters 

Fast and Furious first came to the attention of ATF Headquarters on December 8, 2009, 

just weeks after the case was ofllcially opened in Phoenix. ATF's Office of Strategic 

Information and Intelligence (OSU) briefed senior A TF personnel about the case on December 8, 

2009, discussing in detail a large recovery of Fast and Furious weapons in Naco, Sonora, 

Mexico. 16 

The next day, December 9, 2009, the Acting A TF Director first learned about Fast and 

Furious and tbe large recovery of weapons that had already occllrred. 17 The following week, 

aSH briefed senior ATF officials about another large cache of Fast and Furious weapons that 

had been recovered in Mexico. ls 

On January 5, 2010, OSH presented senior ATF officials with a summary of all of the 

weapons that could be linked to known straw purchasers in Fast and Furious. Injust two 

months, these straw purchasers bought a totaillumber of 685 guns. This number raised the ire of 

several individuals in the room, who expressed concerns about the growing operation. 19 

On March 5, 20 I 0, A TF headquarters hosted a larger, more detailed brieting on 

Operation Fast and Furious. David Voth, the Group Supervisor overseeing Fast and Furious, 

traveled from Phoenix to give the presentation. He gave an extremely detailed synopsis ofthe 

status of the investigation, including the number of guns purchased, weapons seizures to date, 

money spent by straw purchasers, and organizational charts ofthe relationships among straw 

purchasers and to members ofthe Sinaloa drug cartel. At that point, the straw purchases had 

bought 1,026 weapons, costing nearly $650,000.20 

ATF's Phoenix Field Division informed ATF headquarters of large weapons rccoveries 

tracing back to Fast and Furious. The Phoenix Field Division had frequently forwarded these 

"Interview with Lorren Leadmon. Intelligence Operations Analyst, Washington, D.C., July 5,2011 [hereinafter 

Loadmon Interview]. 

17 Oversight qfthe u.s. Department qf Justice: Hearing Before Ihe S. Comm. on the Judiciary, 1 12th Congo (May 4, 

2011) (Questions for the Record ofHon. Eric H. Holder, Jr., Att'y Gen. orlhe U.S.). 

18 Leadmon Interview, supra note 16, 

19 Transcribed Interview of Depu(y Ass'! 0iT. Steve Martin, ATF, at 36 (July 6, 2011) [hereinafter Marlin Tr.]. 

20 See generally "Operation the Fa,t and the Furious" Presentation, Mar. 5,2010. 

6 
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DRAFT 

updates directly to Deputy ATF Director Billy Hoover and Acting A TF Director Ken Melson?l 

When Hoover learned about how large Fast and Furious had grown in March 2010, he finally 

ordered the creation of an exit strategy.22 This exit strategy, something Hoover had never before 

requested in any other case, was a timeline for ATF to wind down the case,2} 

Though Hoover ordered the exit strategy in March, he did not receive it until early May. 

The three-page document outlined a 30-, 60-, and 90-day strategy for winding down Fast and 

Furious and handing it over to the U.S. Attorney's Office for prosecution?4 

In July 2010, Acting Director Melson expressed concern about the number of weapons 

flowing to Mexico,25 and in October 2010 the Assistant Director for Field Operations, the 

number three official in ATF, expressed concern that A TF had not yet halted the straw 

purchasing activity in Fast and Furious. 26 Despite these concern" however. the U.S. Attorney's 

Office continued to delay the indictments, and no one at A TF headquarters ordered the Phoenix 

Field Division to simply arrest the straw purchasers in order to take them off the street. TIle 

members ofthe firearms trafficking ring were not arrested until two weapons from Fast and 

Furious were found at the murder scene of Border Patrol Agent Brian Terry. 

D. The Criminal Division 

1. Coordination with A TF 

In early September 2009, acc.ording to Department e-mails, ATF and the Department of 

Justice's Criminal Division began discussions "to talk about ways CRM [Criminal Division] and 

A TF can coordinate on gun trafficking and gang-related initiatives,,,27 Early on in these 

discussions, Lanny Breuer, Assistant Attomey General in charge ofthe Criminal Division, sent a 

prosecutor to help the U.S, Attorney's Office in Arizona prosecute ATF cases. The first case 

chosen for prosecution was Operation Wide Receiver, a year-long A TF Phoenix Field Division 

investigation initiated in 2006, which involved several hundred guns being walked. The U.S. 

Attorney's Office in Arizona, objecting to the tactics used in Wide Receiver, had previously 

relllsed to prosecute the case. 

According to James Trusty, a senior official in the Criminal Division's Gang Unit, in 

September 2009 Breuer was "VERY interested in the Arizona gun trafficking case [Wide 

Receiver], and he is traveling out [to Arizona] around 9/21. Consequently, he asked us for a 

'briefing' on that case before the 21 st rolls arouna,,,n The next day, according to Trusty, 

Breuer's chief of staff "men1ioned the case again, so there is clearly great attention/interest from 

the front office.,,29 

21 E-mail from Mark Chait to Kenneth Melson and William Hoover (Feb, 24, 2010) [HOGR 001426], 

22 Transcribed Interview or William Hoover, ATF Deputy Director, at 9 (July 21, 2011), 

23 Id. at 72. 

24 E-mail from Douglas Palmer, Supervisor Group V, ATF. to William Newell, ATF (Apr. 27, 2010). 

25 E-mail from Kenneth Melson 10 Mark Chait, 01. aI., (July 14,2010) [HOGR 002084], 

26 E-mail from Mark Chait (0 William Newell (Oc(, 29, 2010) [HOGR 001890j. 

27 E-mail from Jason Weinstein to Lanny Breuer (Sept. 10,2009) [HOGR 003378], 

28 E-mail from James Trusty to Laura Gwinn (Sept. 2, 2009) [HOGR 003375]. 

29 E-mail from James Trusty to Laura Gwinn (Sept. 3,2009) [HOGR 003376]. 

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When the Criminal Division prosecutor first arrived in Arizona, she gave Trusty her 

impressions ofthe case. Her e-mail stated: 

Case involves 300 to 500 guns. .. It is my understanding that a lot of 

these guns "walked", Whether some or all of that was intentional is not 

known?O 

Discussions between A TF and the Criminal Division regarding inter-departmental 

coordination continued over the next few months, On December 3, 2009, the Acting A TF 

Director e-mailed Breuer about this cooperation, He stated: 

Lanny: We have decided to take a little different approach with regard to 

seizures of multiple weapons in Mexico. Assuming the guns are traced, 

instead of working each trace almost independently of the other traces 

from the seizure, I want to coordinate and monitor the work on all of them 

collectively as if the seizure was one case.'1 

Breuer responded: 

We think this is a terrific idea and a great way to approach the 

investigations of these seizures, Our Gang Unit will be assigning an 

attorney to help you coordinate this effort,32 

Kevin Carwile, Chief of the Gang Unit, assigned an attorney, Joe Cooley, to assist A TF, and 

Operation Fast and Furious was selected as a recipient of this assistance, Shortly after his 

assignment, Cooley had to rearrange his holiday plans to attend a significant briefing on Fast and 

Furious 33 

Cooley was assigned to Fast and Furious for the next three months. He advised the lead 

federal prosecutor, Emory Hurley, and received detailed briefings on operational details. 

Cooley, though, was not the only Criminal Division attorney involved with Fast and Furious 

during this time period, The head of the division, Lanny Breuer, met with ATF officials about 

the case, including Deputy Director Bilty Hoover and Assistant Director for Field Operations 

Mark Chait.34 

Given the initial involvement of the Criminal Division with Fast and Furious in the early 

stages of the investigation, senior officials in Criminal Division should have been greatly 

alarmed about what they learned about the case. These officials should have halted the program, 

30 E-mail from Laura Gwinn to James Trusty (Sept. 3,2009) [HOOR 003377J. 

1I E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 2009) [HOOR 003403], 

J2 E-mail from Lanny Breuer to Kenneth Melson (Dec, 4, 2009) [HOOR 003403], 

31 E-mail [TOm Kevin Carwile to Jason Weinstein (Mar. 16,2010) [HOOR 002832], 

H Meeting on "Weapons Seizures in Mexico wi Lanny Breuer" at Robert F, Kennedy Building, Room 2107, Jan, 5, 

20]0,10:00 AM [HOOR 001987], 

8 
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especially given their prior knowledge of gunwalking in Wide Receiver, run by the same 

leadership in the same ATF field division. 

DRAFT 

On March 5, 2010, Cooley attended a briefing about Fast and Furious. The detailed 

briefing highlighted the large number of weapons the gun trafficking ring had purchased and 

discussed recovt:ries ofthose weapons in Mexico. According to Steve Martin, Deputy Assistant 

Director in ATF's Office of Strategic Intelligence and Information, everyone in the room knew 

the weapons from Fast and Furious were being linked to a Mexican cartel.'s Two weeks later, in 

mid-March 2010, Carwile pulled Cooley off Fast and Furious, when the U.S. Attorney's Office 

informed him that it had the case under contro1.36 

2. \Viretaps 

At about the same time, lawyers in the Criminal Division authorized wiretap applications 

for Fast and Furious to be submitted to a federal judge. Fast and Furious involved the use of 

seven wiretaps between March and July of 20 I O. 

In a letter to Chairman Issa, the Deputy Attorney General acknowledged that the Office 

of Enforcement Operations (OEO), part of the Justice Department's Criminal Division, is 

"primarily responsible for the Department's statutory wiretap authorizations.,,37 According to 

the letter, lawyers in OEO review these wiretap packages to ensure that they "meet statutory 

requirements and DOJ policies.,,38 When OEO completes its review of a wiretap package, 

federal law provides that the Attorney General or his designee - in practice, a Deputy Assistant 

Attorney General in the Criminal Division - reviews and authorizes it?9 Each wiretap package 

includes an affidavit which details the factual basis upon which the authorization is sought. Each 

application tor Fast and Furious included a memorandum from Assistant Attorney General 

Breuer to PaulO' Brien, Director of OEO, authorizing the interception application,40 

The Criminal Division's approval of the wiretap applications in Fast and Furious violated 

Department of Justice policy. The core mission ofthe Bureau of Alcohol, Tobacco, Firearms, 

and Explosives is to "protect[J our communities from, , . the illegal use and trafficking of 

firearms. ,,41 

The wiretap applications document the extensive involvement of the Criminal Division in 

Fast and Furious, yet the Department of Justice failed to produce them in response to the 

Committee's subpoena. The Criminal Division authorized Fast and Furious wiretap applications 

l5 Martin Tr. at 100. 

16 E-mail from Kevin Carwile to Jason Weinstein (Mar. 16,2010,9;00 a.m.) [HOGR DOJ 2382]. 

17 LeUer from Oep AU'y Gen. James M. Cole Chairman Darrelllss. et .1., at 6 (Jan. 27, 2012) [hereinafter Cole 

Letterj. 

38fd. 

39 See 13 U.S.C. § 2516(1). 

40 See, e.g.~ Memorandum from Lanny A. Breuer, Ass't Att'y Gen., Crimin~l Division to Paul M. O'Brien, Director, 

Office of Enforcement Operations, Criminal Division, Authorization for Interception Order Application, Mar. 10, 

2010. 

4l Bureau of Alcohol, Tobacco, Firearms, and Explosives, "ATP's Mission," http://w\\rw.atf,gov/aboutimission(last 

visited May 1,2012). 

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on March 10,2010; April 15, 2010; May 6, 2010; May 14,2010; June 1,20\0; and July 1,2010. 

Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant Attorney General 

Kenneth Blanco, and Deputy Assistant Attorney General John Keeney signed these applications 

on behalf of Assistant Attorney General Lanny Breuer. 

E. The Office of the Deputy Attorney General 

The Office of the Deputy Attorney General (ODAG) maintained close involvement in 

Operation Fast and Furious. In the Justice Department, A TF reports to the Deputy Attorney 

General (DAG),42 In praetice, an official in the Office of the Deputy Attorney General is 

responsible for managing the ATF portfolio. This official monitors the operations of ATF, and 

raises potential ATF issues to the attention of the DAG:J During the pendency of Fast and 

Furious, this official was Associate Deputy Attorney General Edward Siskel. 

Officials in ODAG became familiar with Fast and Furious as early as March 2010, On 

March 12, 2010, Siskel and then-Acting DAG Gary GrindleI' received an extensive briefing on 

Fast and Furious during a monthly meeting with the ATF's Acting Director and Deputy Director. 

This briefing presented GrindleI' with overwhelming evidence of illegal straw purchasing during 

Fast and Furious, The presentation included a chart of the names of the straw purchasers, 31 in 

all, and the number of weapons they had acquired to date, 1,026.44 Three of these straw 

purchasers had already purchased over 100 weapons each, with one straw purchaser having 

already acquired over 300 weapons. During this briefing, Grindler learned that buyers had paid 

cash for every single gun. 45 

A map of Mexico detailed locations of recoveries of weapons purchased through Fast and 

Furious, including some at crime scenes.46 The briefing also covered the use of stash houses 

where weapons bought during Fast and Furious were stored before being transported to Mexico. 

Grindler learned of some of the unique investigative techniques A TF was using during Fast and 

Furious,47 Despite receiving all of this infonnation, then-Deputy Attorney Genera! Gary 

Grindler did not order Fast and Furious to be shut down, nor did he follow-up with ATF or his 

staff about the investigation, 

Throughout the summer of 20 1 0, A TF officials remained in close contact with their 

ODAG supervisors regarding Fast and Furious, Fast and Furious was a topic in each of the 

monthly meetings between ATF and the DAG. ATF apprised Ed Siskel of significant recoveries 

of Fast and Furious weapons, as well as of notable progress in the investigation, and Siskel 

indicated to A TF that he was monitoring it.48 In mid-December 2010, after Fast and Furious had 

been ongoing for over a year, Grindler received more details about the program, On December 

15,2010, Border Patrol Agent Brian TelTY was killed, Two Fast and Furiuus weapons were 

" USDOJ: About Department of Justice Agencies, available at http://www.justice,gov/agenciesiindex-org,html (last 

visited May. 1,2012), 

41 Transcribed Interview of Acting Dit'. Kenneth Melson, at 25 (July 4, 2011), 

44 "Operation the Fast and the Furious," March 12,2010 [HOGR 002820 - HOGR 002823], 

41 fd. 

461d. 

47 Id. 

48 E-mail from Edward N, Siskel to Mark R, Chait (July 14,2010) [HOGR 002847]. 

10 
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DRAFT 

recovered at the scene of his murder. Two days later, Associate Deputy Attorney General Brad 

Smith sent Grindler and four ODAG ofticials an e-mall detailing the circumstances of Terry's 

murder and its connection to Fast and Furious."9 Smith attached a four-page summary of the 

Fast and Furious investigation. 

V. The Committee's October 12, 2011 Subpoena to Attorney General Holder 

On October 12, 20]1, the Committee issued a subpoena to Attorney General Eric Holder, 

demanding documents rclatcd to the Department of Justice's involvement with Operation Fast 

and Furious. The subpoena was issued following six months of constant refusals by the Justice 

Department to cooperate with the Committee's investigation into Operation Fast and Furious. 

A. Events Leading Up to the Subpoena 

On March 16, 2011, Chairman lssa sent a letter to then-A TF Acting Director Ken Melson 

asking for iniormation and documents pertaining to Operation Fast and Furious.50 Late in the 

afternoon of March 30, 2011, the Department, on behalf of A TF and Melson, informed the 

Committee that it would not provide any documents pursuant to the letter. The Committee 

informed the Department it planned to issue a subpoena. On March 31, 2011, the Committee 

issued a subpoena to Ken Melson for the documents. 

On May 2, 2011, Committee staff reviewed documents the Department made available 

for in camera review at Department headquarters. Many of these documents contained partial or 

full redactions. Following this review, Chairman Issa wrote to the Department on May 5, 2011, 

asking the Department to produce all documents responsive to the Committee's subpoena 

forthwith. 51 

In spite of this letter, for the two months following the issuance of the subpoena, the 

Dcpartment produced zero pages of non-public documents. On June 8, 20] J, the Committee 

again wrote to the Department requesting complete production of all documents by June 10, 

2011.52 The Department responded on June 10, 2011, stating "complete production of all 

documents by June 10,2011. . is not possible."S) At 7:49 p.m. that evening, just three days 

before a scheduled Committee hearing on the obligation of the Department of Justice to 

cooperate with congressional oversight, the Department finally produced its first non-pUblic 

documents to the Committee, totaling 69 pages. 54 

Over the next six weeks, through July 21, 2011, the Department produced an additional 

1,286 pages of documents. The Department produced no additional documents until September 

49 E-mail from Assoc. Deputy Att'y Gen. Brad Smith to Deputy Att'y Gen. Gary Grindler,et .1. (Dec. 17,2010) 

!HOGR 002875-002881]. 

o Letter from Chairman Darrelllssa to ATF Acting Dir. Kenneth Melson (Mar. 16,2011) [hereinafter Mar. 16 

Letter]. 

50 Letter from Chairman Darrellissa to AIt'y Gen. Eric Holder (May 5, 2011). 

52 Letter from Chairman Darrelllssa to ATF Acting Dir. Kenneth Melson (June 8, 2011). 

53 Leiter from Ass't AIt'y Gen. Ronald Weich to Chairman Darrell [ssa (June 10, 2011). 

54 Id. 

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DRAFT 

1,2011, when it produced 193 pa~es ofdoc.uments 5S On September 30, 2011, the Department 

produced 97 pages of documents. 6 On October 11, 20J J, the Department produced 56 pages of 

documents.57 

Early in the investigation, the Committee received hundreds of pertinent documents from 

whistleblowers. Many oftlle documents the whistleblowers provided were not among the 2,050 

pages that the Department had produced by October 11,2011, demonstrating that the 

Depalimcnt was withholding materials responsive to the subpoena. 

The Committee requested additional documents from the Department as the investigation 

proceeded during the summer of2011. On July 11,2011, Chairman Issa and Senator Grass]ey 

wrote to the Attorney General requesting documents from twelve people in Justice Department 

headquarters pertaining to Fast and Furious.58 The Justice Department first responded to this 

letter on October 31, 2011, nearly four months later.59 

On July 11, 2011, Chairman Issa and Senator Grassiey sent a letter to the FBI requesting 

documents relating to the FBI's role in the Fast and Furious OCDETF investigation.60 The leIter 

requested information and documents pertaining to paid FBI informants who were the target of 

the Fast and Furious investigation. The FBI never produced any of the documents requested in 

this letter. 

On July 15,20 II, Chairman [ssa and Senator Grassley sent a lettcr to the DEA requesting 

documents pertaining to another target of the Fast and Furious investigation.61 The DEA was 

aware ofthis target before Fast and Furious became an OCDETF case, a fact that raises serious 

questions about the lack of information-sharing among Department components. Though DEA 

responded to the letter on July 22,2011, it, too, did not provide any of the requested 

documents.62 

On September I, 2011, Chairman Issa and Senator Grassley wrote to the Acting U.S. 

Attorney in Arizona requesting documents and communieations pertaining to Fast and FuriouS.63 

As the oftlce responsible for leading Fast and Furious, the Arizona U.S. Attorney's Offic.e 

possesses a large volume of documents reJevant to the Committee's investigation. The 

Department of Justice, on behalf ofthe U.S. Attorney's Office for the District of Arizona, did not 

55 Letter from Ass'! AU'y Gen. Ronald Weich to Chairman Darrell Issa (Sep. l, 2011). 

56 Letter from Ass'j Att'y Gen. Ronald Weich to Chairman Darrell Iss. and Senator Charles Grassley (Sep. 30, 

2011). 

"Letter from Ass'! Att'y Gen. Ronald Weich to Chairm.n Darrell Iss. (Oct. 11,2011) [hereinafter Oct. 11 Letter]. 

"Letter from Chairman Darrell I,," and Senator Charles Gr.ssley to Att'y Gen. Eric HoJder (July 11,2011). 

59 Letler from Ass't Att'y Gen. Ronald Weich to Chainnan Darrell Iss. (Oct. 31, 2011) [hereinafter Oct. 31 Letter]. 

60 Letter from Chairman Darrell Iss. and Senator Charles Grassley to Fm DiT. Robert Mueller (July 11, 2011) 

[hereinafter Mueller Letter]. 

61 Letter from Chairman Darrell Iss. and Senator Charles Gmssiey to DEA Adm'r Michele Leonhart (July 15, 

2011). 

62 Letle, from DEA Adm'r Michele Leonhart to Chainnan Darrelllssa and Senator Charles Gressley (July 22, 

2011). 

63 Letter from Chairman Darrell Iss. and Senator Charles Grassley to Acting U.S. Att'y Ann Scheel (Sep. 1,2011). 

12 
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74504D1-33.eps

DRAFT 

respond to this letter until December 6, 2011, the eve of the Attorney General's testimony before 

the House Judiciary Committce.64 

On September 27, 2011, Chairman Issa and Senator Grassley sent a letter to the Attorney 

General raising questions about information-sharing among Department components, the 

Department's cooperation with Congress, and Fm documents requested in the July 11,2011 

letter to FBI Director Mueller.65 To date, the Department has not responded to this letter. 

The Department wrote to Chairman Issa on October 11,2011, stating it had "substantially 

concluded [its 1 efforts to respond to thc Committee requests set forth in the subpoena and the 

letter ofJunc 8th ,',66 The letter furthcr stated: 

[OJther documents have not been produced or made available for these 

same reasons because neither redacting them nor making them available 

for review (as opposed to production) was sufficient to address our 

concerns. Our disclosure of the vast majority of the withheld material is 

prohibited by statute. These records pertain to matters occurring before a 

grand jury, as well as investigative activities under seal or the disclosure 

of which is prohibited by law ... we also have not disclosed certain 

confidential investigative and prosecutorial documents, the disclosure of 

which would, in our judgment, compromise the pending criminal 

investigations and prosecution, These include core investigative and 

prosecutodal material, such as Reports of Investigation and drafts of court 

filings. 

Finally . . . we have also withheld internal communications that were 

generated in the course of the Department's effort to respond to 

congressional and media inquiries about Operation Fast and Furious. 

These records were created in 20 11, well after the completion of the 

investigative portion of Operation Fast and Furious that the Committee has 

been reviewing and after the charging decisions reflected in the January 

25, 2011 indictmcnts. Thus, they were not part of the communications 

regarding the development and implementation of the strategy decisions 

that have not been the focus of the Committee's inquiry ... Disclosure 

would have a chilling effect on agency officials' deliberations about how 

to respond to inquiries from Congrcss or the media, Such a chill on 

internal communications would interfere with our ability to respond as 

effectively and efficiently as possible to congressional oversight 

requests. 67 

64 Letler from Ass't AtI'y Gen. Ronald Weich to Chairman Darrelllssa and Senator Charles Grassley (Dec. 6, 201 J) 

[hereinafier Dec. 6 Letler]. 

"' Letler li'om Chairman Darrelllssa and Senator Charles Grassley to AtI'y Gen. Eric Holder (Scp. 27, 2011). 

" Oct. II Letler, supra note 57. G7 Jd. 

13 
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74504D1-34.eps

DRAFT 

The following day, on October 12, 2011, after the Department announced its intention to 

cease producing documents responsive to the Committee's March 31, 2011 subpoena to Melson, 

the Committee issued a subpoena to Attorney General Eric Holder demanding documents 

relating to Fast and Furious. 

B. Subpoena Schedule Requests 

In the weeks following the issuance of the subpoena, Committee staff worked closely 

with Department lawyers to provide clarifications about subpoena categories, and to assist the 

Department in prioritizing documents for production. Committee and Department staff engaged 

in discussions spanning several weeks to enable the Department to better understand what the 

Committee was specifically seeking. During these conversations, the Committee clearly 

articulated its investigative priorities as reflected in the subpoena schedule. The Department 

memorialized these priorities with specificity in an October 31, 20 II e-mail from the Office of 

Legislative Affail's.68 

Despite the Department's acknowledgement that it understands what the Committee was 

seeking, it has yet to provide a single document for 12 out ofthe 22 categories contained in the 

subpoena schedule. The Department has not adequately complied with the Committee's 

subpoena, and it has unequivocally stated its refusal to comply with entire categories ofthe 

subpoena altogether. 

A review of each ofthe 22 schedule categories in the subpoena reflects the Department's 

clear understanding ofthe documents sought by the Committee for each category. Below is a 

listing of each category of the subpoena schedule, followed by what the Department has 

explained is its undcrstanding of what the Committee is seeking for each category. 

I. All communications referring or relating to Operation Fast and Furious, the Jacob 

Chambers case, or any Organized Crime Drug Enforcement Task Force (OCDETF) 

firearms trafficking case based in Phoenix, Arizona, to or from the following individuals: 

a. Eric Holder Jr., Attorney General; 

b. David Ogden, Former Deputy Attorney General; 

c. Gary GrindleI', Office ofthe Attorney General and former Acting Deputy 

Attorney General; 

d. .lames Cole, Deputy Attorney General; 

e. Lanny Breuer, Assistant Attorney General; 

f. Ronald Weich, Assistant Attorney General; 

g. Kenneth Blanco, Deputy Assistant Attorney General; 

h. Jason Weinstein, Deputy Assistant Attorney General; 

i. John Keeney, Deputy Assistant Attorney General; 

j. Bruce Swartz, Deputy Assistant Attorney General; 

k. Matt Axelrod, Associate Deputy Attorney General; 

I. Ed Siskel, former Associate Deputy Attorney General; 

68 E-mail from Office of Leg. Affairs Staff,U.S. Dep'tofJustice, to Investigations Staff, H. Comm. on Oversight 

and GOy't Reform (Oct. 31, 2011) [hereinafter OLA e-mail]. 

14 
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74504D1-35.eps

DRAFT 

m. Brad Smith, Office of the Deputy Attorney General; 

n. Kevin Carwile. Section Chief, Capital Case Unit, Criminal Division; 

o. Joseph Cooley. Criminal Fraud Section, Criminal Division; and, 

p. James Trusty, Acting Chief, Organized Crime and Gang Section. 

Department Response: In late October 2011, the Department acknowledged that it had 

"already begun searches of some of the custodians listed here relating to Fast and 

Furious, such as in response to the Chairman's letter of7!!!!I! ,,,69 Still, it has produced 

no documents since the issuance of the subpoena pursuant to subpoena categories I (a), 

J(b), leg), lei), and I(k), only two documents pursuant to subpoena category led), and 

very few documents pursuant to subpoena category 1 (j) and 1 (I). 

2. All communic.ations between and among Department of Justice (DOJ) employees and 

Executive Office ofthe President employees, including but not limited to Associate 

Communications Director Eric Schultz, referring or relating to Operation Fast and 

Furious or any other firearms trafficking cases. 

Department Response: Acwrding to the Department, the Committee identified for the 

Department several people likely to be custodians of these documcnts,70 Still, the 

Department has produced no documents responsive to this subpoena eategory. The 

Depm1ment has not informed the Committee that no documents exist responsive to this 

schedule number. 

3, All communications between DOJ employees and Executive Office of the President 

employees referring or relating to the President's March 22, 2011 interview with Jorge 

Ramos of Univi8ion. 

Department Response: The Department represented that it would "check on 

communications with WH Press Office in the time period preceding the President's 

3122/1! interview," and that it had identitled the most likely custodians of those 

documents,71 Nonetheless, it has produced no documents responsive to this subpoena 

category. The Department has not informed the Committee that no documents exist 

responsive to this schedule number. 

4. All documents and communications referring or relating to any instances prior to 

February 4, 2011 where the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

failed to interdict weapons that had been illegally purchased or transferred. 

Department Response: The Department has produced some documents responsive to this 

subpoena category. 

71 fd. 

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74504D1-36.eps

5. All documents and communications referring or relating to any instances prior to 

February 4, 2011 where ATF broke off surveillance of weapons and subsequently 

became aware that those we·apons entered :\1exico. 

DRAFT 

Department Response: The Department has produced documents responsive to this 

subpoena category. 

Most of the responsive documents the Department has produced pursuant to the subpoena 

pertain to categories 4 and 5 and relate to earlier cases the Department has described as 

involving gunwalking. The Department produced these documents strategically, 

advancing its own narrative about why Fast and Furious was neither an isolated nor a 

unique program. It has attempted to accomplish this objective by simultaneously 

producing documents to the media and the Committee. 

6. All documents and communications referring or relating to the murder ofImmigrations 

and Customs Enforcement Agent Jaime Zapata, including, but not limited to, documents 

and communications regarding Zapata's mission when he was murdered, Form for 

Reporting Information That May Become Testimony (FD-302), photographs ofthe crime 

scene, and investigative reports prepared by the FBI. 

Department Response: The Department "understand[sJ that the Zapata family has 

complained that they've been 'kept in the dark' about this matter" which necessitated this 

subpoena category.72 The Department "conferred with the U.S. Attorney's Office ... 

which we ho~e will be helpful to them and perhaps address the concerns that are the basis 

of this item." J The Department, however, has produced no documents responsive to this 

subpoena category. The Department has not infonned the Committee that no documents 

exist responsive to this schedule number. 

in late February 2012, press accounts revealed that prosecutors had recently sentenced a 

second individual in relation to the murder ofImmigration and Customs Enforcement 

(ICE) Agent Jaime Zapata. One news artide stated that "[n]obody was more astonished 

to learn ofthc case than Zapata's parents, who didn't know that [the defendant] had been 

arrested or linked to their son's murder.,,74 Press accounts alleged that the defendant had 

been "under ATF surveillance for alleast six months before a rifle he trafficked was used 

in Zapata's murder" - a situation similar to what took place during Fast and Furious.75 

Despite this revelation, the Department has still failed to produce any documents 

responsive to this subpoena category. 

7. All communications to or from William Newell, former Special Agent-in-Charge for 

ATF's Phoenix Field Division, between: 

74 Sh.ryl Attki"on, Second gull used in ICE agent murder linked 10 ATFundercover operation, (Feb. 22, 2012, 5:29 

P.M.), http://www.cbsnews.comI8JO 1-31727 _162-57383089-1 0391695Isec.ond-gun-used-in-ice-agent-murderlinked-to-alf-undercover-operationl. 

7S Id 

16 
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u. December 14, 20]0 to January 25,2011; and, 

b. March 16,2009 to March 19,2009. 

DRAFT 

Department Response: The Department has not produced any documents responsive to 

subpoena category 7(b), despite its understanding that the Committee sought documents 

pertaining "to communications with [Executive Office of the President] staff regarding 

gun control policy" within a specific and narrow timeframe.76 The Department has not 

informed the Committee that no documents exist responsive 10 this schedule number. 

8. All Reports oflnvestigation (ROIs) related to Operation Past and Furious or ATF 

Case Number 785115-10-0004. 

Department Response: Department representatives contended that this subpoena 

category "presents some significant issues for" the De.partment due to current and 

potential future indictments.77 The Department has not produced any documents 

responsive to this subpoena category. The Department has not informed the Committee 

that no documents exist responsive to this schedule number. 

9. All communications between and among Matt Axelrod, Kenneth Melson, and William 

Hoover referring or relating to ROls identified pursuant to Paragraph 8. 

Department Response: The Department acknowledged its understanding that this request 

specifically pertained to "emails Ken sent to Matt and Billy, expressing concerns, perhaps 

in March 2011, [that] are core to [the Committee's] work, and we'll look at those.,,78 

Still, it has produced no documents pursuant to this subpoena category. The Department 

has not informed the Committee that no documents exist responsive to this schedule 

number. 

10. All documents and communications between and among former U.S. Attorney Dennis 

Burke, Attorney General Eric Holder Jr., former Acting Deputy Attorney General Gary 

Grindler, Deputy Attorney General James Cole, Assistant Attorney General Lanny 

Breuer, and Deputy Assistant Attorney General Jason Weinstein referring or relating to 

Operation Fast and Furious or any OCDETF case originating in Arizona. 

Department Response: The Department has produced some documents pursuant to this 

subpoena category. 

11. All communications sent or received between: 

a. December 16,2009 and December 18, 2009, and; 

b. March 9, 2011 and March 14,2011, to or from the following individuals: 

"OLA e-mail, supra nole 68. 71 [d. 

" Id. 

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i. Emory Hurley, Assistant U.S. Attorney, Office of the U.S. Attorney for 

the District of Arizona; 

Ii. Michael Morrissey, Assistant U.S. Attorney, Office ofthe U,S. Attorney 

for the District of Arizona; 

iii. Patrick Cunningham, Chief, Criminal Division, Office oflhe U.S. 

Attorney for the District of Arizona; 

iv. David Voth, Group Supervisor, ATF; and, 

v. Hope MacAllister, Special Agent, ATF, 

Department Response: The Department acknowledged that it "will first search these 

custodians for records re a) the Howard meeting in 12/09; and b) the ROY or memo that 

was written during this time period relating to the Howard mtng in 12109.,,79 Although 

the Department has produced documents that arc purportedly responsive to this category, 

these documents do not pertain to the subject matter thai the Department understands that 

the Committee is seeking, 

12, All communications sent or received between December 15, 2010 and December] 7, 

2010 to or from the following individuals in the U,S. Attorney's Office for the Distric.t of 

Arizona: 

a. Dennis Burke, former United States Attorney; 

h. Emory Hurley, Assistant United States Attorney; 

c, Michael Morrissey, Assistant United States Attorney; and, 

d, Patrick Cunningham, Chief of the Criminal Division. 

Department Response: The Department understood that the Committee's "primary 

interest here is in the communications during this time period that relate to the Terry death 

and, per our conversation, we will start with those,,,8o Although the Department has 

produced some documents responsive to this subpoena category, it has not represented 

that it has produced all responsive documents in this category. 

13. Ali communications sent or received between August 7, 2009 and March 19,2011 

betwee.n and among former Ambassador to Mexico Carlos Pascual; Assistant Attorney 

General Lanny Breuer; and Deputy Assistant Attorney Gcneral Bruce Swartz, 

Department Response: The Department acknowledged that it "understand[s] the 

Committee's focus here is Firearms Trafficking issues along the SW Border, not limited 

to Fasl & Furious."sl Despite the Department's understanding, it has produced no 

documents responsive to this subpoena category. The Department has not informed the 

Committee that no documents exist responsive to this schedule number. 

14. All communications sent or received between August 7, 2009 and March 19,2011 

between and among former Ambassador to Mexico Carlos Pascual and any Department of 

" Id. 

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Justice employee based in Mexico City referring or relating to firearms trafficking 

initiatives, Operation Fast and Furious or any firearms trafficking case based in Arizona, 

or any visits by Assistant Attorney General Lanny Breuer to Mexico. 

Department Response: The Department has produced approximately ten pages pursuant 

to this subpoena category, even though it "understand!sj that [the Committee] wants [the 

Department] to approach this effort with efficiency."! Despite the Committee's request 

for an efficient effort, the Department produced a key document regarding Attorney 

General Lanny Breuer three and a half months after the subpoena was issued, after 

several previous document productions, and long after Breuer testified before Congress 

and could be questioned about the document. Given the importance oftlle contents ofthe 

document and the request jar an efficient effort on the part ofthe Department in this 

subpoena category, it is inconceivable that the Department did not discover this 

document months prior to its production. The Department's actions suggest that it kept 

this document hidden for strategic and public relations reasons. 

15. Any FD-302 relating to targets, suspects, defendants, or their associates, bosses, or 

financiers in the Fast and Furious investigation, including but not limited to any FD-302s 

ATF Special Agent Hope MacAllister provided to A TF leadership during the calendar 

year 2011. 

Department Response: The Department "understand[s] that [the Committee's] primary 

focus here is the 5 FBI 3025 that were provided to SA MacAllister, which she later gave 

to Messrs. Hoover and Melson."S3 Despite the specificity ohhis document request, the 

Department has not produced any documents responsive to this schedule number. The 

Department has not informed the Committee that no documents exist responsive to this 

schedule number. 

16. Any investigative reports prepared by the FBI or Drug Enforcement Administration 

(DEA) referring or relating to targets, suspects, or defendants in the Fast and Furious case. 

Department Response: The Depaltment was "uncertain about the volume here," 

regarding the amount of documents, and pledged to "work[] on this [with] DEA and 

FBI."s4 Despite this pledge, it has produced no documents responsive to this subpoena 

category. The Department has not informed the Committee that no documents exist 

responsive to this schedule number. 

17. Any investigative reports prepared by the FBI or DEA relating to the individuals 

described to Committee staff at the October 5, 2011 briefing at Justice Department 

headquarters as Target Number 1 and Target Number 2. 

" Id 13.:i Id. 

"' Id 

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Department Response: The Department acknowledged that it "think[s] we understand 

this item.,,85 Despite this understanding, it has produced no documents responsive to this 

subpoena category. The Department has not informed the Committee that no documents 

exist responsive to this schedule number. 

18. All documents and communications in the possession, custody or control of the DEA 

referring or relating to Manuel Fabian Celis-Acosta. 

Department Response: The Department agreed to "start with records regarding 

information that DEA shared with ATF about Acosta, which we understand to be the 

focus of your interest in this item."S6 Despite this understanding, the Department has 

produced no documents responsive to this subpoena category. The Department has not 

informed the Committee that no documents exist responsive to this schedule number. 

19. All documents and communications between and among FBI employees in Arizona and 

the FBI Laboratory, including but not limited to employees in the Firearms/Toolmark 

Unit, referring or relating to the firearms recovered during the course of the investigation 

of Brian Terry's death. 

Department Response: The Department's understanding was that "[the Committee's] 

focus here is how evidence was tagged at the scene of Agent Terry's murder, how 

evidence was processed, how the FBI ballistics report was prepared and what it means."S7 

Despite this clear understanding, the Department has produced no documents responsive 

to this subpoena category. The Department has not informed the Committee that no 

documents exist responsive to this schedule number. 

20. All agendas, meeting notes, meeting minutes, and follow-up reports for the Attorney 

General's Advisory Committee of U.S. Attorneys between March 1,2009 and July 31, 

2011, referring or relating to Operation Fast and Furious. 

Department Response: Th is category asks for documents from the Attorney General's 

Advisory Committee within a clearly specified date range. Despite the fact that the 

Department has acknowledged this category "is clear," the Department has produced no 

documents responsive to this subpoena category.S8 The Department has not info1l11ed the 

Committee that no documents exist responsive to this schedule number. 

21. All weekly reports and memoranda for the Attorney General, either directly or through the 

Deputy Attorney General, from any employee in the Criminal Division, ATF, DBA, FBI, 

or the National Drug Intelligence Center created between November I, 2009 and 

September 30, 2011. 

" Id. so Id. 

" Jd. 

" Id. 

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Department Response: This category asks for weekly reports and memoranda to the 

Attorney General /Tom five different Department components "regarding ATF cases re 

firearms tratlkking."s9 The Department has produced some documents responsive to this 

subpoena category. 

22. All surveillance tapes recorded by pole cameras inside the Lone Wolf Trading Co. store 

between 12:00 a.m. on October 3, 2010 and 12:00 a.m. on October 7, 2010. 

Department Response: This category asks for all ATF surveillance tapes from Lone 

Wolf Trading Company between two specified dutes in October 2010. Both the 

Committee and the Department "understand a break-in occurred" at that time. 90 The 

Department has produced no documents responsive to this subpoena category. The 

Depmiment has not informed the Committee that no documents exist responsive to this 

schedule number. 

C. Attempts of Accommodation by the Committee, Lack of Compliance by tile 

Justice Department 

In public statements, the Department has maintained that it remains committed to 

"work[ing] to accommodate the Committee's legitimate oversight needs.,,91 The Department, 

however, believes it is the sole arbiter of what is "legitimate." In turn, the Committee has gone 

to great lengths to accommodate the Department's interests as an Executive Branch agency. 

Unfortunatciy, the Department's actions have not matched its rhetoric. Instead, it has chosen to 

prolong the investigation and impugn the motives of the Committee. A statement the Attorney 

General made at the february 2, 2012, hearing was emblematic ofthe Department's posture with 

respect to the investigation: 

But I also think that if we arc going to really get ahead here, if we are 

really going to make some progress, we need to put aside the political 

gotcha ~ames in an election year and focus on matters that are extremely 

serious. 2 

This attitude with respect to a legitimate congressional inquiry has permeated the Department's 

ranks. Had the Department demonstrated a willingness to cooperate with this investigation from 

the outset - instead of attempting to cover up its own internal mismanagement -- this 

investigation likely would have concluded well before the election year even began. The 

Department has intentionally withheld documents for months, only to release a selected few on 

the eve of the testimony of Department officials.93 The Department has impeded the ability ofa 

89 Id. 90 Id. 

91 Fast and Furious: iHanagement Failures at the Department oj Justice: Hearing Before the H Comm. on 

Oversight and GOY '/ Reform, I 12th Congo (Feb. 2, 2012) (Statement orHon, Eric H. Holder, Jr., Att'y Gen. of the 

U.S.). 

92 Jd. 

" On Friday January 27, 2012,just days before the Attorney General testilied before Congress, documents were 

delivered to the Senate Judiciary Committee so late in the evening that" disc ofliles had to be slipped under the 

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co-equal branch of government to perform its constitutional duty to conduct Executive Branch 

oversight. By any measure, it has obstructed and slowed the Committee's work. 

The Committee has been unfailingly patient in working with Department representatives 

to obtain information the Committee requires to complete its investigation. The Department's 

progress has been unacceptably slow in responding to the October 12, 20 II subpoena issued to 

the Attorney General. Complying with the Committee's subpoena is not optional. Indeed, the 

failure to produce documents pursuant to a congressional subpoena is a violation offedel'al 

law.94 Because the Department has not cited any legal authority as the basis for withholding 

documents pursuant to the subpoena its efforts to accommodate the Committee's constitutional 

obligation to conduct oversight of the Executive Branch are incomplete. 

1. In Camera Reviews 

In an attempt to accommodate the Justice Department's interests, Committee staff has 

viewed documents responsive to the subpoena that the Department has identified as sensitive in 

camera at Department headquarters'. Committee staff has visited the Department on April 12, 

May 4, June 17, October 12, and November 3, 2011, as well as on January 30 and February 27, 

2012 to view these documents. Many ofthc documents made available for in camera review, 

however, have been repetitive in nature. Many other documents seemingly do not contain any 

sensitive parts that require them to be viewed in camera. Other documents are altogether nonresponsive to the subpoena. 

Committee staff has spent dozens of hours at Department headquarters reviewing these 

documents. In addition, the Department has identified hundreds of other sensitive documents 

responsive to the subpoena, which it refuses to make available even for in camera review, 

instead withholding them from the Committee altogether. The Committee has made these 

accommodations to the Department at the expense of not being able to make these documents 

available t{lT review by Committee Members. 

2. Redacted Documents 

The Department has redacted varying portions of many of the documents it has produced. 

These redactions purportedly protect ongoing criminal investigations and prosecutions, as well as 

other sensitive data. Th~ Department has so heavily redacted some documents produced to 

Congress that they are unintelligible. There appears to be no objective, consistent criteria 

delineating why some documents were redacted, only provided in camera, or withheld entirely. 

door. This is not only a" extreme inconvenience for congressional staff but also deprives staff of the ability to 

review the materials in a timely manner. 

94 2 U.S.C. § 192 stales. in pertinent part: 

Every person who having becn summoned a, a witness by the authority of either House 

of Congress to give testimony or to produce papers upon any matter under inquiry before 

... any committee of either House of Congress, willfully makes default ... shall be 

deemed guilty of a misdemeanor, punishable by a fine of not more than $1.000 nor less 

than $100 and imprisonment in a common jail for not less than one month nor more than 

twelve months. 

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On the evening of May 2, 2011, Department of Justice representatives notified the 

Committee that the Department was planning to make approximately 400 pages of documents 

available for an in camera review at its headquarters."5 Committee staff went to review those 

documents on May 4, 2011, only to discover they were partially, or in some cases almost 

completely, redacted. Since these documents were only made available pursuant to Committee's 

first subpoena and only on an in camera basis, redactions were inappropriate and unnecessary. 

On June 14,2011 the Department produced 65 pages of documents to the Committee in iI 

production labeled "Batch 4.,,96 Ofthese 65 pages, every single one was at least patti ally 

redacted, 44 were completely redacted, and 61 had redactions covering more than half of the 

page. 

On July 18, 20 II, after more than a month of discussions between Committee and 

Department staff, the Department finally included a redaction code that identifies the reason for 

each redaction within a document. 97 While the Department has used this redaction code in 

subsequent document productions to the Committee, documents produced and redacted prior to 

July 18,2011 do not have the benefit of associated redaction codes for each redaction. 

The Department has over-redacted certain documents. The Committee has obtained 

many of these documents through whistleblowers and has compared some ofthem with those 

produced by the Department. In some instances, the Department redacted more text than 

necessary, making it unnecessarily difficult and sometimes impossible for the Committee, absent 

the documents provided by whistleblowers, to investigate decisions made by Department 

officials. 

Further, any documents made available pursuant to the Committee's subpoenas must not 

have any redactions, To fully and properly investigate the decisions made by Department 

officials during Fast and Furious, the Committee requires access to documents in their entirety. 

The Department has not complied with this requirement. 

The Committee does recognize the importance of privacy interests and other legitimate 

reasons the Department has fur redacting portions of documents produced to the Committee, 

The Committee has attempted to accommodate the DepaItment's stated concerns related to 

documt:nts it believes arc sensitive, The Committee intended to release 230 pages of documents 

in support of its July 26, 2011 report entitled The Department of Justice '.1 Operation Fast and 

Furious: Fueling Cartel Violence, and gave the Department an opportunity to suggest its own 

redactions before the documents became public 98 These actions are consistent with the 

Committee's willingness to accommodate the Department's interests, 

95 Leller from Ass'! Att'y Gen. Ronald Weich to Chairman Darrell Iss" (May 2, 2011). 

96 Leller from Ass'! AII'y Gen. Ronald Weich 10 Chairman Darrelllss. (June 14,2011). 

97 Leller from Ass'! Att'y Gen. Ronald Weich to Chairman Darrell!,s. (July 18, 2011). 

98 E-mail from Office of Leg, Aftairs St.ff, U.S. Dep't ofJustice, to Staff, H. Camm. on Oversight and Gov't 

Reform (July 28, 2011), 

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3. Privilege Log 

Mindful of the Justice Department's prerogatives as an Executive Branch agency, the 

Committee has offered the opportunity for the Department to prepare a privilege log of 

documents responsive to the subpoena but withheld from production. A privilege log would 

outline the documents withheld and Ihe specific grounds for withholding. Such a log would 

serve as the basis for negotiation between the Committee and the Department about prioritizing 

the documents for potential production. 

On January 31, 2012, Chairman Issa wrote to the Attorney General. He said: 

Should you choose to continue to withhold documents pursuant to the 

subpoena, you must create a detailed privilege log explaining why the 

Department is refusing 10 produce each document If thc Department 

continues to obstruct the congressional inquiry by not providing 

documents and information, this Committee will have no alternative but to 

move forward with proceedings to hold you in contempt of Congress. 99 

On February 14,2012, Chairman Issa again wrote to the Attorney General. He said: 

We cannot wait any longer for the Department's cooperation. As such 

please specify a date by which YOll expected thc Department to produce all 

documents responsive to the subpoena. In addition, please specify a 

Department representative who will interface with the Committee for 

production purposes ... This person's primary responsibility should be to 

identify for the Committee all documents the Department has determined 

to be responsive to the subpoena but is refusing to produce, and should 

provide a privilege log of the documents delineating why each onc is 

being withheld from Congress. Please direct this individual to produce. 

this log to the Committee without further delay.lOo 

On several occasions, Committee staff has asked the Department to provide such a privilege log, 

including a listing, category-by-category, of documents the Depmiment has located pursuant to 

the subpoena and the reason the Department will not produce those documents. Despite these 

requests, however, the Department has neither produced a privilege log nor responded to this 

aspect of Chairman Issa's letters ofJanuary 31, 2012 and February 14,2012. 

The Department has not informed the Committee that it has been unable to locate certain 

documents. This suggests that the Department is not producing responsive documents in its 

possession. Since the Department will not produce a privilege log, it has failed to make a good 

faith effOli to accommodate the Committee's legitimate oversight interests. 

99 Letter from Chairman Darrell Issa to Att'y Gen. Eric Holder (Jan. 31, 20]2) [hereinafter Jan. 31 Letter]. 

100 Leiter from Chairman Darrclllssa to Att'y Gen. Eric Holder (Feb. J4, 2012) (emphasis in original) [hereinafter 

Feb. 14 Letter]. 

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4, Assertions of Non-Compliance 

The Committee's investigation into Operation Fast and Furious is replete with instances 

in which the Justice Department has openly acknowledged it would not comply wilh the 

Committee's requests, These pronouncements began with the Marc,h 31, 2011 subpoena to the 

former Acting ATF Director, continued through the Committee's October 12, 2011 subpoena to 

the Attorney General, and persist to this day. 

a) March 31, 2011 Snbpoena 

On March \6, 2011, Chairman Issa sent a letter to the then-Acting ATF Director 

requesting documents about Fast and Furious. wl As part of this request, Chairman Issa asked for 

a "list of individuals responsible for authorizing the decision to 'walk' guns to Mexico in order to 

follow them and capture a 'bigger fish.",lo2 On the afternoon of Marc,h 30, 201 J, the deadline 

given in Chairman Issa's letter, Department staff participated in a conference call with 

Committee statI During that call, Department staff expressed a lack of understanding over the 

meaning of the word "li51.,,103 Department officials further informed Committee staff that the 

Department would not produce documents by the deadline and were uncertain when they would 

produce documents in the future, Committee staff understood this response to mean the 

Department did not intend to cooperate with the Committee's investigation, 

The next day Cbairman Issa authorized a subpoena for the Acting A TF Director. The 

following day, the Department wrote to Chairman Issa. Assistant Attorney General Ronald 

Weich wrote: 

As you know, the Department has been working with the Committee to 

provide documents responsive to its March 16 request to the Bureau of 

Alcohol, Tobaeeo, Firearms and Explosives. Yesterday, we informed 

Committee staff that we intended to produce a number of responsive 

documents within the next week. As we explained, there are some 

documents tbat we would be unable to provide without compromising the 

Department's ongoing criminal investigation into the death of Agent Brian 

Terry as well as other investigations and prosecutions, but we would seek 

to work productively with the Committee to nnd other ways to be 

resJlonsive to its needs. \04 

Despite the Department's stated intention to produce documents within the next week, it 

produced no documents for over two months, until June 10, 2011. In the interim, the Department 

made little effort to work with the Committee to define the scope of tile documents required by 

the subpoena. 

101 Mar. 16 Letter, supra note 50, 

102 Jd, 

IOJ Teleconference between Committee Staff and U,S. Dep't of Justice Office of Leg. Affairs Staff(Mar. 30.2011), 

104 Letter from Ass'! Att'y Gen, Ronald Weich to Chairman Darrellissa (Apr. 1,2011), 

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On April 3, 2011, the Department wrote to Chairman !ssa to inform the Committee that it 

had located documents responsive to the subpoena. Assistant Attorney General Weich wrote that 

the Department did not plan to share many of these materials with the Committee. His letter 

stated: 

To date, our search has located several law enforcement sensitive 

documents responsive to the requests in your letter and the subpoena. We 

have substantial confidentiality interests in these documents because they 

contain information about ATF strategies and procedures that could be 

used by individuals seeking to evade our law enforcement efforts. We are 

pre.pared to make these documents, with some redactions, av ailab Ie for 

review by Committee staff at the Department. They will bear redactions 

to protect information about ongoing criminal investigations, investigative 

targets, internal deliberations about law enforcement options, and 

communications with foreign government representatives. In addition, we 

notified Committee staff that we have identified certain publicly availabJe 

documents that are responsive. While our efforts to identifY responsive 

documents are continuing, many of your requests seek records relating to 

ongoing criminal investigations. Based upon the Department's 

longstanding policy regarding the confidentiality of ongoing criminal 

investigations, we are not in a position to disclose such documents, nor 

can we confirm or deny the existence of records in our ongoing 

investigative files. This policy is based on our strong need to protect the 

independence and effectiveness of our law enforcement efforts. I os 

The letter cited prior Department policy in support its position of non-compliance: 

We are dedicated to holding Agent Terry'S killer or killers responsible 

through the criminal justice process that is currently underway, but we are 

not in a position to provide additional information at this time regarding 

this active criminal investigation for the reasons set forth above .... 106 

On June 14,2011, after the Department had produced 194 pages of non-public 

documents pursuant to the subpoena, the Department informed the Committee that it was 

deliberately withholding certain documents: 

As with previous oversight matters, we have not provided access to 

documents that contain detailed information about our investigative 

activities where their disclosure would harm our pending investigations 

and prosecutions. This includes information that would identifY 

investigative subjects, sensitive techniques, anticipated actions, and other 

details that would assist individuals in evading our law enforcement 

c·fforts. Our judgments begin with the premise that we will disclose as 

much as possible that is responsive to the Committee's interests, consistent 

105 Letter from Ass'! Alt'y Gen. Ronald Weich to Chairman Darrelllss. (Apr. 8, 2011 l. 106 [d. 

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74504D1-47.eps

with our responsibilities to bring to justice those who are responsible for 

the death of Agent Terry and those who violate federal firearms laws,107 

DRAFT 

The June 14, 2011 lettcr arrived one day after the Committee held a hearing featuring 

constitutional experts discussing the legal obligations of the Department to comply with a 

congressional subpoena, The Department's letter did not address the views expressed at the 

hearing, instead reiterating its internal policy. The letter noted that the Department would not 

provide access to documents discussing its use of "sensitive techniques" - even though these 

techniques were central to the Committee's investigation. 

On July 5, 2011, Chairman Issa and Senator Grassley wrote to the Department about 

serious issues involving the lack ofinformation sh{lring among Department components, in 

particular, between the FBI and DEA.IOS These issues raised 11le possibility that the Department 

had been deliberately concealing information about Fast and rudous from the Committee, 

including the roles of its component agencies. The next day, the Department responded. It 

wrote: 

Your lettcr raises concerns about the alleged role of other agencies in 

matters that you say touch on Operation Fast and Furious. Chairman Issa's 

statr previously raised this issue with representatives of the Department 

and it is my understanding that discussions about whether and how to 

provide any such sensitive law enforcement information have been . 109 ongoll1g .... 

On July 11, 2011, Chairman Issa and Senator Grassley wrote to the FBI requesting 

information on the issue of information sharing within the Department. The letter included a 

request for information relating to the murder oflmmigrations and Customs Enforcement Agent 

Jaime Zapata. l10 On August 12, 2011, the FBI responded. It wrote: 

Your letter also asks for specific information related to the crime scene 

and events leading to the murder of ICE Agent Jaime Zapata in Mexico on 

February 15, 2011. As you know, crime scene evidence and the 

circumstances of a crime are generally not made public in an ongoing 

investigation. Furthermore, the investigative reports of an ongoing 

investigation are kept confidential during the investigation to preserve the 

integrity of the investigation and to ensure its successful conclusion. We 

regret that we cannot provide more details about the investigation at this 

time, but we need to ensure all appropriate steps are taken to protect the 

integrity of the investigation. 111 

107 Letter from Ass'l Att'y Gen. Ronald Weich to Chairman Darrelllss. (June 14,2011). 

108 Letter from Chairman Darrell Iss. and Senalor Charles Grassley to Att'y Gen. Eric Holder (July 5, 2011). 

109 Letter from Ass'! Att'y Gen. Ronald Weich to Chairman Darrelllssu and Senator Charles Grassley (July 6, 

2011). 

110 Mueller Letter, supra nole 60. 

III Letter from Stephen Kelley, Ass't Oir., FAI Office of Congressional Affairs, to Chairman Darrell Iss. and 

Senator Charles Grassley (Aug. 12,201]), 

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The FBI did not provide any documents to the Committee regarding the information sharing 

issues raised, though it did offer to provide a briefing to staff. It delivered that briefing nearly 

two months later, on October 5, 2011. 

On October J 1, 20 II, the Department wrote to Chairman Issa. The Department stated: 

We believe that we have now substantially concluded our efforts to 

respond to the Committee requests set forth in the subpoena and the Jetter 

of June 8th. 112 

The Department was well aware that the Committee was struggling to understand how the 

Department created its Febntary 4, 2011 letter to Senator Grassley, which the Committee 

believed to contain false information. To that end, the Department stated: 

As we have previously explained to Committee staff, we have also 

withheld internal communications that were generated in the course of the 

Department's effort to respond 10 congressional and media inquiries about 

Operation Fast and Furious. These records were created in 2011, well 

aHer the completion of the investigative portion of Operation Fast and 

Furious that the Committee has been reviewing and after the charging 

decisions reflected in the January 25, 201 J indictments. Thus, they were 

not part of the communications regarding the development and 

implementation of the strategy decisions that have been the focus of the 

Committee's inquiry. It is longstanding Executive Branch practice not to 

disclose documents falling into this category because disclosure would 

implicate substantial Executive Branch confidentiality interests and 

separation of powers principles. Disclosure would have a chilling effect 

on agency officials' deliberations about how to respond to inquiries from 

Congress or the media. Such a chill on internal communications would 

interfere with our ahility to respond as effectively and efficiently as 

possible to congressional oversight Tequests. m 

The next day, the Committee issued a subpoena to Attorney General Holder. 

b) October 12, 2011 Subpoena 

On October 31, 20 II, the Department produced its first batch of documents pursuant to 

the Committee's Octoher 12, 2011 subpoena. 114 This production consisted of 652 pages. Of 

these 652 pages, 116 were about the Kingery case, a case that the Department wanted to 

highlight in an attempt to discredit some of the original Fast and Furious whistleblowers. 

Twenty-eight additional pages were about an operation from the prior administration, the 

Hernandez case, and 245 pages were about another operation from the prior administration, 

Operation Wide Receiver. 

I !2 Oct Ii Letter, supra note 57. III fd. 

I" Oct. 31 Letter, supra note 59. 

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Although the subpoena covered documents from the Hernandez and Wide Receiver 

cases, their inclusion into the first production batch under the subpoena was indicative of the 

Department's strategy in responding to the subpoena. The Department briefed the press on these 

documents at the same time as it produced them to the Committee. The Department seemed 

more interested in spin control than in complying with the congressional subpoena, Sixty 

percent of the documents in this first production were related to either Kingery, Hernandez, or 

Wide Receiver, and therefore, unrelated to the gravamen oftlle Committee's invcstigation into 

Fast and Furious, 

On December 2,2011, shortly before the Attorney General's testimony before the House 

Judiciary Committee, the Department produced 1,364 pages of documents pertaining to the 

creation orits February 4, 20 II letter. 115 Despite its statements in the October II, 20 II letter, 

the Department, through a letter from Deputy Attorney General James Cole, publicly admitted 

under pressure its obvious misstatements, formally acknowledging that the February 4, 2011 

letter "contains inaccuracies.,,116 

On December 13,2011, on the eve of the Committee's interview with Gary Grindler, 

Chief of StutIto the Attorney General, the Deparlment produced 19 pages of responsive 

dOCliments. 117 

On January 5, 2012, thc DepaJ1ment produc.cd 482 pages of documents responsive to the 

subpoena.lls Of these 482 pages, 304 of them, or 63 percent, were related to the Wide Receiver 

case. This production brought the total number of pages produced pursuant to Wide Receiver to 

549, nearly 100 more than the Department had produced at that time regarding Fast and furious 

in three document productions. 

On January 27, 2012 the Department produced 486 pages of documents pursuant to the 

October 12,2011 subpoena,1l9 In its cover letter, the Department stated, "[t]he majority of 

materials produced today are responsive to items 7, II and 12 of you!' October 11 subpoena." 

There are no documents in the production, however, responsive to items 7(b) or ll(b)(i-v). 

The Department wrote in its January 27 cover letter: 

We are producing or making available for review materials that are 

responsive to these items, most of which pertain to the specific 

invcstigations that we have already identified to the Committee. We are 

not, however, providing materials perlaining to other matters, such as 

documents regarding ATF cases that do not appear to involve the 

inappropriate tactics under review by the Committee; non-ATF cases, 

except for certain information relating to the death of Customs and Border 

lIS Letler from Deputy AtI'y Gen. James Cole to Chairman Darrelllssa and Senator Charles Grassley (Dec. 2. 2011) 

Letler [rom Ass't AtI'y Gen. Ronald Weich to Chairman Darrell!ssa and Senalor Charles Grassley (Dec. 13, 

2011). 

ii8 Letter from Ass'! AtI'y Gen. Ronald Weich to Chairman Darrell Issa (Jan. 5, 2012), 

'" Cole LeIter, supra note 37. 

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Protection Agent Brian Terry; administrative matters; and personal 

record S. 120 

DRAFT 

The Department refilsed to produce documents pursuant to the subpoena regarding investigations 

that it had not previously specified 10 the Committee, or investigations that "do not appear" to 

involve inappropriate tactics. In doing so, the Department made itselfthe sole arbiter of the 

Committee's investigative interests, as well as of the use of "inappropriate" tactics. The 

Department has prevented Congress from executing its constitutionally mandated oversight 

function, preferring instead to se1t:l'egulate. 

The October 12,2011 subpoena, however, covers all investigations in which ATF failed 

to interdict weapons that had been illegally purchased or transferred not just those cases 

previously identified by the Department. The subpoena does not give the Department the 

authority to define which tactics afe inappropriate. Rather, the language in sections 4 and 5 of 

the subpoena schedule is dear. The Department's refusal to coopcrate on this front and only 

produce documents about investigations that it had previously identified - documents that 

support the Department's press strategy -- is in violation of its obligation to cooperate with 

congressional oversight. 

On January 31, 2012, Chairman Issa again wrote to the Attorney General, this time 

asking that the Department produce all documents pursuant to the subpoena by February 9, 

2012. 121 The following day, the Department responded. It stated: 

Your most recent letter asks that we complete the production process 

under the October 11,2011 subpoena by February 9, 2012. The broad 

scope of the Committee's requests and the volume or material 10 be 

collected, processed and reviewed in response make it impossible to meet 

that deadline, despite our good faith etTorts. We will continue in good 

faith to produce materials, but it simply will not be possible to finish the 

collection, processing and review of materials by the date sought in your 

most recent letter. 122 

Yet, as discussed in Section V.B above, the Department was acutely aware in October 2011, 

approximately three months earlier, exactly what categories of documents the Committee was 

seeking. In response to the subpoena, the Depmtment had, up to February 1,2012, produced 

more documents relating to a single operation years before Fast and Furious even began than it 

had relating to Operation Fast and Furious itself. 

On February 16,2012, the Department produced 304 pages of documents pursuant to the 

sUbpoena.123 The production included nearly 60 pages of publicly available and previously 

produced information, as well as other documents previously produced to the Committee. 

120 [d. 

121 Jan. 31 Letter, supra note 99. 

122 Letter from Deputy Att'y Gen. James Cole to Chairman Darrelllss. (Feb. 1,2012) [hereinafter Feb. 1 Letter]. 

12J Letter from Ass'! Att'y Gen. Ronald Weich to Chainnan D.rrelllssa (Feb. 16,2012) [hereinafter Feb. 16 Letter]. 

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On February 27, 2012, the Department produced eight pages pursuant to the subpoena. 124 

These eight pages, given to the Committee by a whistleblowcr ten months earlier, were produced 

only because a transcribed interview with a former Associate Deputy Attorney General was to 

take place the next day. 

On March 2, 2012, the Department produced 26 pages of documents pursuant to the 

October 12,2011 sUbpoena.125 Five ofthese documents were about the Kingery. Fourteen 

documents - over half of the production - related to Wide Receiver. Seven pages were duplicate 

copies of a press release already produced to the Committee. 

On March 16, 2012, the Department produced 357 pages of documents pursuant to the 

subpoena. Three hundred seven of these pages, or 86%, related to the Hernandez and Medrano 

cases from the prior Administration. Twenty other pages had been previously produced by the 

Department, and seven pages were publicly available on the Justice Department's website. 

On April 3,2012, the DepaJiment produced 116 pages of documents pursuant to the 

subpoena. Forty four of these pages, or 38%, related to cases other than Fast and Furious. On 

April 19,2012, the Department produced 188 pages of documents pursuant to the subpoena. 

The Department has produced a tolal of 6,959 pages to the Committee to date. 126 

c) Post-February 4, 2011 Documents 

Many of the documents the October 12, 2011 subpoena requires were created or 

produced after February 4, 20 II. The Department first responded to Congress about Fast and 

Furious on this date. The Department has steadfastly refused to make any documents created 

after February 4, 2011 available to the Committee. 

The Department's actions following the February 4, 2011 letter to Senator Grassley are 

crucial in determining how it responded to the serious allegations raised by the whistleblowers. 

The October 12,2011 subpoena covers documents that would help Congress understand what the 

Department knew about Fast and Furious, including when and how it discovered its February 4 

letter was false, and the Department's efforts to conceal that information from Congress and the 

public. Such documents would include those relating to actions the Department took to silence 

OJ' retaliate against Fast and Furious whistleblowers and to find out what had happened, and how 

the Department assessed the culpability of those involved in the program. 

The Attorney General tirst expressed the Department's position regarding documents 

created after February 4, 20 II in his testimony before the House Judiciary Committee on 

December 8, 2011. In no uncertain terms, he stated: 

[Wjith regard to the Justice Department as a whole -- and I'm certainly a 

member of the Justice Department - we will not provide memos after 

124 Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrellls,. (Feb. 27, 2012). 

'" Letter from Ass'! Att'y Gen. Ronald Weich to Chainnan Darrclllssa (Mar. 2, 2012)_ 

126 The mo,t recenl production by Ihe Department, on April 19,2012, ended with Bates number HOGR 006959. 

31 
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February the 4th, , . e-mails, memos - consistent with the way in which 

the Department of Justice has always conducted itself in its interactions, 127 

He again impressed this point upon Committee Members later in the hearing: 

Well, with the regard to provision of e-mails, I thought I've made it clear 

that after February the 4th it is not our intentiun to provide e-mail 

information consistent with the way in which the Justice Department has 

always conducted itselfl2B 

DRAFT 

The Department reiterated this position less than a week later in a December 14, 20 II, 

transcribed interview of Gary Grindler, the Attorney General's Chief of Staff, Department 

counsel broadened the Department's position with respect to sharing documents created after 

February 4, 2011 in refusing to allow Grindler to answer any questions relating 10 conversations 

that he had with anyone in the Department regarding Fast and Furiolls after February 4, 2011, 

Grindler stated: 

What I am saying is that the Attorney General made it clear at his 

testimony last week that we are not providing information to the 

committee subsequent to the February 4th letter. 129 

Departmcnt counsel expanded the position the Attorney Genera! articulated regarding 

documentary evidence at the House Judiciary Committee hearing to include testimonial evidence 

as welL 130 Given the initial response by the Department to the congressional inquiry into Fast 

and Furious, the eommcnts by Department counsel created a barrier preventing Congress frum 

obtaining vital information about Fast and Furious, 

The Department has maintained this position during additional transcribed interv iews, In 

an interview with Deputy Assistant Attorney General Jason Weinstein on January 10,2012, 

Department counsel prohibited him from responding to an entire line of questioning about his 

interactions with the Arizona U,S, Attorney's Office because it "implicates the post-February 4th 

period,,,13l 

The post-February 4 period is replete with details germane to the Committee's 

investigation, Documents encompassing this period are responsive to the October 12, 2011 

subpoena, For example, following the February 4, 2011, letter, Weinstein, at the behest of 

Assistant Attorney General Breuer, prepared an analytical review of Fast and Furious,132 

Weinstein interviewed Emory Hurley and Patrick Cunningham ofthe Arizona U,S, Attorney's 

127 Oversight Hearing on the Uniled Stales Depar/mem of Justice: Hearing Before the H. Comm, on the Judiciary, 

1 12th Congo (Dec, 8, 20] 1) Cfcst, ofHoll. Eric Il. Holder, Jr., Alt'y Gen, of the U,S,). 

128 Id. 

129 Transcribed Interview of Gary Grindler, Chief of Stafflo the Alt'y Gen., at 22 (Dec. 14, 2011) [hereinafter 

Grindler Tr.], no [d, 

131 Transcribed Interview of Jason Weinstein, Deputy Ass'! Alt'y Gen, at 177 (Jan, 10,2012), 

132 Transcribed interview of Dennis K, Burke at 158-60 (Dec. 13,2011), 

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DRAFT 

office in conducting this review.m The document that resulted from Weinstein's analysis 

specifically discussed issues relevant to the Committee's inquiry. To date, the Department has 

not produced this document to the Committee. 

Chairman Issa has sent several letters urging the Department urging to produce 

documents pertaining to the Fast and Furious from the post-indictment period, and raising the 

possibility of contempt if the Attorney General chose not to comply. Initially, the Department 

refused to produce any documents created after January 25, 2011, the date that the case was 

unsealed. On November 9, 2011, Chairman Issa wrote to the Department: 

Over the past six months. Senator Grassley and I have asked for this 

information on many occasions, and each time we have been told it would 

not be produced. This information is covered by the subpoena served on 

the Attorney General on October 12, 20J I, and I expect it to be produced 

no later than Wednesday, November 16, at 5:00 p.m. Failure to comply 

with this request will leave me with no other alternative than the llse of 

compulsory process to obtain your testimony under oath . 

••• 

Understanding the Department's actions after Congress started asking 

questions about Fast and Furious is crucial. As you know, substantial 

effort was expended to hide the actions 0 f the Department from Congress 

... I expect nothing less than full compliance with all aspects of the 

subpoena, including complete production of documents created after the 

indictments were unsealed on January 25, 20 I ! .1l4 

On December 2, 20 II, the Department produced documents pertaining to its February 4, 

2011 response to Senator Grassley. When the Attorney General testified before Congress on 

December 8, 2011, he created a new cutotl'date of February 4, 2011, after which no documents 

would be produced to Congress, despite the fact that such documents were covered by the 

October 12,2011 subpoena. In support ofthis position regarding post-February 4,2011 

documents, in transcribed interviews, Department representatives have asserted a "separation of 

powers" privilege without further explanation or citation to legal authority.135 The Department 

has not cited any legal authority to support this new, extremely broad assertion of privilege, 

On January 31, 2012, Chairman Issa wrote to the Attorney General about this new. 

arbitrary date created by the Department, and raised the possibility of contempt: 

In short, the Committee requires full compliance with all aspects of the 

subpoena, including complete production of documents created after the 

Department's February 4,2011 letter .... If the Department continues to 

obstruct the congressional inquiry by not providing documents and 

113 [d. at 158-59. 

lJ4 Letter from Chairman Darrell Issa to Ass'! Att'y Gen. Ronald Weich (Nov. 9, 20(1). 

135 See, e,g.. Grindle,' Tr. at 22. 

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information, this Committee will have no alternative but to move forward 

with proceedings to hold you in contempt of Congrcss. 136 

The Department responded the following day. It said: 

To the extent responsive materials exist that post-date congressional 

review of this matter and were not generated in that context or to respond 

to media inquiries, and likewise do not implicate other recognized 

Department interests in confidentiality (for example, matters occurring 

before a grand jury, investigative activities under seal or the disclosure of 

which is prohibited by law, core investigative information, or matters 

reflecting internal Department deliberations), we intend to provide 

them. lJ7 

The Department quoted from its October 11, 2011 letter, stating: 

[A]s we have previously explained to Committee staf~ we have also 

withheld internal communications that were generated in the course ofthe 

Department's effort to respond to congressional and media inquiries about 

Operation Fast and Furious. These records were created in 20 11, well 

after the completion of the investigative portion of Operation Fast and 

Furious that the Committee has been reviewing and after the charging 

decisions reflected in the January 25, 2011 indictments. Thus, they were 

not part of the communications regarding the development and 

implementation of the strategy decisions that have been the focus of the 

Committee's inquiry. It is longstanding Executive Branch practice not to 

disclose documents falling into this category because disclosure would 

implicate substantial Executive Branch confidentiality interests and 

separation of powers principles. Disclosure would have a chilling effect 

on agency officials' deliberations about how to respond to inquiries from 

Congress or the media. Such a chill on internal communications would 

interfere with our ability to respond as effectively and efficiently as 

possible to congressional oversight requests. us 

DRAFT 

On February 14,2012, Chairman Issa again wrote to the Department regarding postFebruary 4, 2011 documents, and again raised the possibility of contempt: 

Complying with the Committee's subpoena is not optional. Indeed, the 

failure to produce documents pursuant to a congressional subpoena is a 

violation of federal law. The Department's letter suggests that its failure 

to produce, among other things, "deliberative documents and other 

internal communications generated in response to congressional oversight 

requests" is based on the premise that "disclosure would compromise 

136 Jan. 31 Letter, supra note 99. 

137 Feb. I Letter, supra note 122, 

'38 fd. 

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substantial separation of powers principles and Executive ilranch 

confidentiality interests." Your February 4, 2011 cut-off date of providing 

documents to the Committee is entirely arbitrary, and comes from a 

"separation of powers" privilege that does not actually exist. 

You cite no legal authority to support your new, extremely broad 

assertion. To the contrary, as you know, Congress possesses the "power 

of inquiry." Furthermore, "the issuance of a subpoena pursuant to an 

authorized investigation is ... an indispensable ingredient of lawmaking." 

Because the Department has not cited any legal authority as the basis for 

withholding documents, or provided the Committee with a privilege log 

with respect to documents withheld, its efforts 10 accommodate the 

Committee's constitutional obli¥ation to conduct oversight of the 

Executive Branch are incomplete.! 9 

••• 

Picase specify a date by which you expect the Department to produce all 

documents responsive to the subpoena. In addition, please specify a 

Department representative who will interface with the Committee for 

production purposes. This individual should also serve as the conduit for 

dealing with possible c.ontempt proceedin~s, should the Department 

continue to ignore the Committee's subpoena. 40 

DRAFT 

On February 16, 2012, the Department responded. The response did not address the postFebruary 4,2011 documents, nor did it address the possibility of contempt. The Department's 

letter stated: 

We have produced documents to the Committee on a rolling basis; since 

latc last year these productions have occurred approximately twice a 

month. It is our intent to adhere to this rolling production schedule until 

we have completed the process of producing all responsive documents to 

which the Committee is entitled, consistent with the longstanding policies 

of the Executive Branch across administrations of both parties. Moreover, 

we intend to send a letter soon memorializing our discussions with your 

staff about the status of our production of documents within the various 

categories ofthe SUbpoena. 

Our efforts to cooperate with the Committee have been a significant 

undertaking, involving a great deal of hard work by a large number of 

Department employees. The Department has been committed to providing 

the documents and infonnation necessary to allow the Committee to 

satisfy its core oversight interests regarding the use of inappropriate tactics 

in Fast and Furious. 

iJ9 Feb. 14 Letter, supra note 100. 

140 Id (emphasis in original). 

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DRAFT 

The Department, however, has yet to produce any documents pursuant to the subpoena 

created after February 4, 20 II. Despite warnings by Chairman Issa that the Committee wou Id 

initiate contempt if the Dcpartment tailed to comply with the subpot:na, the Department has 

refused to produce documents. 

d) Interview Requests 

In addition to the October 12,2011 subpocna, the Committee has n:quested to interview 

key individuals in Operation Fast and Furious and related programs. The Committee 

accommodated the Department's request to delay an interview with Hope MacAllister, the lead 

case agent for Operation Fast and Furious, despite her vast knowledge of the program. The 

Committee agreed to this accommodation due to the Department's expressed concern about 

interviewing a key witness prior to trial. 

Throughout the investigation, the Department has had an evolving policy with regard to 

witnesses that excluded ever-broader categories of witnesses from participating in volunteer 

interviews. The Department first refused to allow line attorneys to testify in transcribed 

interviews, and then it prevented first-line supervisors from testifYing. Next, the Department 

refused to make Senate-confinned Department oflicials available for transcribed interviews. 

One such Senate-confirmed ollicial, Assistant Attorney General Lanny Breuer, is a central focus 

in the Committee's investigation. On February 16,2012, the Department retreated somewhat 

from its position, noting in a letter to the Committee that it was ;;prepared to work with [the 

Committee 1 to find a mutually agreeable date for [Breuer 1 to appear and answer the Committee's 

questions, whether or not that appearance is public.,,141 The Department has urged the 

Committee to reconsider this interview request. 

While the Department has facilitated a dozen interviews to avoid compUlsory depositions, 

there have been several instances in which the Department has refused to cooperate with the 

Committee in scheduling interviews. The Department has stated that it would not make 

available certain individuals that the Committe\; has requested to interview. On December 6, 

2011, the Department wrote: 

We would like to defer any final decisions about the Committee's request 

for Mr. Swartz's interview until we have identified any responsive 

documents, some of which may implicate equities of another agency. The 

remaining employees you have asked to interview are all career employees 

who are either line prosecutors or first- or second-level supervisors. James 

Trusty and Michael Morrissey were first-level supervisors during the time 

period covered by the Fast and Furious investigation, and Kevin Carwile 

was a second-level supervisor. The remaining three employees you have 

asked to interview - Emory Hurley, Serra Tsethlikai, and Joseph Cooley -

are line prosecutors. We are not prepared to make any of these attorneys 

available for interviews. I

'2 

141 Feb. 16 Letter, supra note 123. 

142 Dec. 6 Letter, supra note 64. 

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DRAFT 

The Department did, however, make Patrick Cunningham, Chief ofthe Criminal Division for the 

U.S. Attorney's Office in Arizona, available for an interview. The Committee had been 

requesting to interview Cunningham since summer 20 Ii. The Department finally allowed access 

to Cunningham for an interview in December 2011. Cunningham chose to retain private counsel 

instead of Department counsel. On January 17,2012, Cunningham canceled his interview 

scheduled for the Committee on January 19,2012. 

Chairman lssa issued a subpoena to Cunningham to appear for a deposition on January 

24,2012. In a letter dated January 19,2012, Cunningham's counsel informed the Committee 

that Cunningham would "assert his constitutional privilege not to be compelled to be a witness 

against himself.,,14J On January 24, 2012, Chairman Issa wrote to the Attorney General to 

express that the absence of Cunningham's testimony would make it "difficult to gauge the 

veracity of some of the Department's claims" regarding Fast and FurioUS. 144 

On January 27, 2012, Cunningham left the Department of Justice. After months of 

Committee requests, the Department finally made him available for all interview just before he 

left the Department. The actions ofthe Department in delaying the interview and Cunningham's 

own assertion ofthe Fifth Amendment privilege delayed and denied the Committee the benefit of 

his testimony. 

5. Failure to Turn Over Documellts 

The Department has failed to turn over any documents pertaining to three main categories 

contained in the October 12,2011 subpoena. 

a) Who at Justice Department Headquarters Should Have 

Known of the Reckless Tactics 

The Committee is seeking documents relating to who had access to information about the 

objectionable tactics used in Operation Fast and Furious, who approved the use of these tactics, 

and what information was available to those individuals when they approved the tactics. 

Documents that whistleblowers have provided to the Committee indicate that those officials were 

the senior officials in the Criminal Division, including Lanny Breuer and one of his top deputies, 

Jason Weinstein. 

Documents in this category include those relating to the preparation of the wiretap 

applications, as well as certain ATF, DEA, and FBI Reports of Investigation. Key decision 

makers at Justice Department headquarters relied on these and other documents to approve the 

investigation. 

14J Lener from Tobin Romero, Williams & Connolly LLP, to Chairman Darrell Iss. (Jan. 19,2012). 

144 Letter from Chairman Darrelllss. to Att'y Gen. Eric Holder (Jan. 24, 2012)" 

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DRAFT 

b) How the Department Concluded that Fllst lind Furious was 

"Fundamentally Flawed" 

The Committee requires documents from the Department relating to how officials learned 

about whistleblower allegations and what actions they took as a result. The Committee is 

investigating not just management of Operation Fast and Furious, but also the Department's 

efforts to slow and otherwise interfere with the Committee's investigation. 

For months after the congressional inquiry began, the Department refused to 

acknowledge that anything improper occurred during Fast and Furious. At a May 5, 2011 

meeting with Committee staff, a Department representative tirs! acknowledged that "there's a 

there, there." The Attorney General acknowledged publicly that Fast and Furious was 

"fundamentally flawed" on October 7,2011. On December 2,2011 the Department finally 

admitted that its February 4, 2011 letter to Senator Grassley contained false informationsomething Congress had been telling the Department for over seven months. 

Documents in this category inc.lude those that explain how the Department responded to 

the crisis in the wake of the death ofU,S. Border Patrol Agent Brian Terry. These documents 

will reveal when the Department realized it had a problem, and what actions it took to resolve 

that problem. 

c) How the Iliter-Agency Task Force Failed 

The Organized Crime Drug Enforcement Task Force (OCDETF) program was created to 

coordinate inter-agency information sharing. As early as December 2009, the DEA shared 

information with ATF that should have led to arrests and the identification of the gun trafficking 

network that Fast and Furious sought to uncover. The Committee has received information 

suggesting that, after arrests were made one year later, ATF discovered that two Mexican drug 

cartel associates at the top of the Fast and Furious network had been designated as national 

security assets by the FBI, and at times have been paid FBI informants. Because ofthis 

cooperation, these associates are considered by some to be unindictable. 

Documents in this category will reveal the extent of the lack of information-sharing 

among DEA, FBI, and A TF. Although the Deputy Attorney General is aware of this problem, he 

has expressed linle interest in resolving it. 

VI. Historical Perspectives 011 COli tempt 

Contempt proceedings in Congress date back over 215 years. These proceedings provide 

Congress a valuable mechanism for adjudicating its interests. Congressional history is replete 

with examples of the pursuit of contempt proceedings by House committees when faced with 

strident resistance to their constitutional authority to exercise investigative poweL 

A. Past Instances of COli tempt 

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DRAFT 

Congress first exercised its contempt authority in 1795 when three Members of the House 

charged two businessmen, Robert Randall and Charles Whitney, with offering bribes in 

exchange for the passage oflegislation granting Randal! and his business partners several million 

acres bordering Lake Erie,I45 This first contempt proceeding began with a resolution by the 

House deeming the allegations were adequate "evidence of an attempt to corrupt," and the House 

reported a corresponding resolution that was referred to a special committee. 146 The special 

committee reported a resolution recommending formal proceedings against Randall and Whitney 

"at the bar of the HOUSC.,,147 

The House adopted the committee resolution which laid out the proc.edurc for the 

contempt proceeding. Interrogatories were exchanged, testimony was received, Randall and 

Whitney were provided counsel, and at the conclusion, on January 4, 1796, the House voted 78-

17 to adopt a resolution finding Randall guilty of contempt. 148 As punishment Randall was 

"ordered [] to be brought to the bar, reprimanded by the Speaker, and held in custody until 

thrther resolution ofthe House. ,,149 Randall was detained unli I January 13, 1796, when the 

HOllse passed a resolution discharging him. ISO In contrast, Whitney "was absolved of any 

wrongdoing," since his actions were against a "member-elect" and occurred "away from the seat 

of government"lSl 

Congressional records do not demonstrate any question or hesitation regarding whether 

Congress possesses the power to hold individuals in contempt. 152 More()ver .. there was no 

question that Congress could punish n non-Member [or contempt. 15.1 Since the til'st contempt 

proceeding, numerous congressional committees have pursued contempt against obstinate 

administration oftlcials as well as private c.itizens who tailed to cooperate with congressional 

investigations. IS" Since the first proceeding against Randall and Whitney, House committees, 

whether standing or select, have served as the vehicle used to lay the foundation for contempt 

proceedings in the House.155 

On August 3, 1983, the House passed a privileged resolution citing Environmental 

Protection Administrator Anne Gorsuch Burford with cnntempt of Congress for failing 

to produce to a House subcommittee pursuant to II sunpoena. 1 56 This was the first 

occasiolllhe Fimlse cited a cabinet-level executive branch member for contempt of Congress. 117 

145 Todd Garvey & Alissa M. Dolan, Congressional Research Service, Congress's Contempt Power: Law. History. 

Practice, & Procedure, no. RL34097, Apr. 15,2008 lhereinafter CRS Contempt Report]. 

146 Jd. 

147 fd. 

143Id. 

14' Jd. 

150 Jd. 

lSi Id; quoting Asher C. Hinds, Precedents of the HOllse of Represenlatives, Sec. 1603 (1907). 

'" Id. 15) ld. at5. 

1S4 [d. a16. 

155 [d. at 14. 

1561d. 

157 Wm. Holmes Brown oj aI., Ii\llJ.~1lJl.Y~;..LLGuide 10 tlw R"l"" Preceden!H, and Ptoccdlll'" "t:tl~J~9.t!~, 450 

(2011). 

39 
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DRAFT 

A subsequent agreement between the House and the Administrator, as well as prosecutorial 

discretion, was the base for not enforcing the contempt citation against Burford. 15H 

Within the past fifteen years the Committee on Oversight and Government Reform has 

undertaken or prepared for contempt proceedings on multiple occasions. In \998, Chairman Dan 

Burton held a vote recommending contempt tor Attorney General Janet Reno based on her 

failure to comply with a subpoena issued in connection with the Committee's investigation into 

campaign finance law violations. 159 On August 7,1998, the Committee held Attorney General 

Reno in contempt by a vote of24 to 18. 160 

During the 110th Congress, Chairman Henry Waxman threatened and scheduled 

contempt proc.cedings against several Administration officials. 161 Contempt reports were drafted 

against Attorney General Michael B. Mukasey, Stephen L. Johnson, Administrator oflhe U.S. 

Environmental Protection Agency, and Susan E. Dudley, Administrator of the Office of 

Information and Regulatory AITairs (OIRA) in the White House Office of Management and 

Budget. Business meetings to consider these drafts were scheduled. 162 Former Attorney General 

Mukasey's draft contempt report charged him with failing to produce documents in connection 

to the Committee's investigation of the release ofcJassified information. According to the.ir draft 

contempt reports, Administrators Johnson and Dudley failed to cooperate with the Committee's 

lengthy investigation into California's petition for a waiver to regulate greenhouse gas emissions 

from motor vehicles and the revision ofthc national ambient air quality standards for ozone. 

Most recently, the House Judiciary Committee pursued contempt against former White 

House Counsel Harriet Miers and White House Chief of Staff Joshua 1301ten. 16J On June 13, 

2007, the Committee served subpoenas on Miers and Bolten. lM After attempts at 

accommodations from both sides, the Committee detennined that Miers and Bolten did not 

satisfactorily comply with the subpoenas. On July 25,2007, the Committee voted, 22-17, to hold 

Miers and Bolten in contempt of Congress. 

On February 14,2008, the rullI-louse, with most Republicans abstaining, voted to hold 

Miers and Bolten in criminal contempt of Congress by a margin of223_42. 165 One hundred 

seventy-three Members of Congress did not cast a vote either in favor or against the 

resolution. 166 All but nine Members who abstained were Republican. 167 Only three Republicans 

]58 !d. at 20, 22. 

159 David E. Rosenbaum. Panel Votes 10 Charge Reno With Contempt o/Congress, N.Y. TIMES (Aug. 7,1998). 

100 fd. 

]5] Laurie Kellman, Waxman Threatens Mukasey With Contempt Over Leak, U.S.A. TODAY (July 8,2008); Richard 

Simon, While House Says No 10 Congress' EPA Subpoena, L.A. TIMES (June 21, 2008). 

162 Press Release, Rep. Henry Waxman, Chairman Waxman Warns Allorney General of Scheduled Contempl Vole 

(July 8, 2008) hllp:lloversight-archive.waxma".house.govis\ory.asp'llD=2067 (last visited Feb. 22, 2012); Press 

Release. Rep. Henry Waxman, Chairman Waxman Schedules Contempt Vole (June 13, 2008) http://oversightarchive.waxman.house.gov/story.asp?lD=2012 (last visited Feb. 22, 2012). 

103 CRS Contempt Report al 54-55. 

164Id. 

165 See H. Res. 982. IG6 fd. 

167Id. 

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DRAFT 

supported the contempt resolution for Miers and Bolten. 168 This marked the first contempt vote 

by Congress with respect to the Executive Branch since the Reagan Adminislration. 169 The 

resolutions passed by the House allowed Congress to exercise all available remedies in the 

pursuit of contempt. 170 The House Judiciary Committee's action against Miers marked the first 

time that a former administration official had ever been held in contempt. 17l 

B. Document Productions 

The Department has refused to produce thousands of documents pursuant to the October 

12,2011 subpoena because it claims certain documents are Law Enforcement Sensitive, others 

pertain to ongoing criminal investigations, and others relate to internal deliberative process. The 

President has not claimed Executive Privilege over any documents pertaining to Fast and 

Furious. 

During the past ten years the Committee on Oversight and Government Reform has 

undertaken a number of investigations that resulted in strong opposition from the Executive 

Branch regarding document productions. These investigations include regulatory decisions of 

the Environmental Protection Agency (EPA), the leak of CIA operative Valerie Plame's identity, 

and the fratricide of Army Corporal Patrick Tillman. J n all cases during the 11 Oth Congress, the 

Administration produced an overwhelming amount of documents, sheltering a narrow few by 

asserting executive privilege. 

In 2008, the Committce received or reviewed in camera all agency-level documents 

related to the EPA's decision regarding California's request for a rule waiver, numbering 

approximatciy 27,000 pages in total. 172 According to a Committee Report, the EPA withheld 

only 32 documents related 10 the California waiver decision based on executive privilege. These 

included notes of telephone calls or meetings in the White House "involving at least one highranking EPA official and at least one high-ranking White House oflicial.,,173 The White House 

Counsel informed the Committee that these documents represented "deliberations at the very 

highest level of government.,,174 

During the Committee's 2008 investigation into the Administration's promulgation of 

ozone standards, the EPA produced or allowed in camera review of over 35,000 pages of 

documents. The President asserted executive privilege over a narrow set of documents, 

encompassing approximately 35 pages. One such document included "talking points for the 

EPA Administrator to use in a meeting with [the Presidentj.,,175 

163 [d. 

169 Philip Shcnon, House Votes to I."ue Contempt Citations, N.Y. TIMES (Feb. 15,2008). 

170 eRS Contempt Report at 54·55. I?lId. 

172 H. Camm. on Oversight and Gov'! Rer. Minority Additional Views, EPA. OIRA Investigalions & Exec. Privilege 

Claims; Missed Opportunities by ,\4ajority to Complete Investigations, Oct. 22, 2008. 

m Jd. 

174 Jd. 

I7S !d. 

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DRAFT 

In furtherance ofthe Committee's ozone regulation investigation, OIM produced or 

all{1wed in camera review of7,500 documents,176 Documents produced by EPA and OIRA 

repr~s,ml\;Cd pre-decisional opinions of career scientists and agency counsel. 17? These documents 

were sensitive bc(;atlse somc. if not all, related to ongoing litigation,178 The OlRA Administrator 

withheld a certain number of documents that were communications between OIRA and certain 

White House officials, and the President ultimately "claimed executive privilege over these 

documents," 179 

Also during the 11 Oth Congress, the Committee investigated the revelation of CIA 

operative Valerie Plame's identity in the news media. The Committee's investigation was 

contemporaneous with the Department of Justice's criminal investigation into the leak ofthis 

classified information- a situation nearly identical to the Committee's current investigation into 

Operation Fast and Furious. 

Pursuant to the Committee's investigation, the Justice Department produced FBI reports 

of witness interviews, commonly referred to as "3025," Specifically, documents reviewed by the 

Committee staff during the Valerie Piame investigation induded the following: 

FBI interviews of federal officials who did not work in the White House, 

as well as interviews of relevant private individuals, . , total of 224 pages 

of records of FBI interview reports with 31 individuals, including 

materials related to a former Secretary, Deputy Secretary, Undersecretary 

[sic j, and two Assistant Secretaries of State, and other former or current 

CIA and State Department officials, including the Vice President's CIA 

briefer. 180 

To accommodate the Committee, the Department permitted in camera review of the following: 

[D]ocumcnts include[ing] redacted reports of the FBI interview with Mr. 

Libby, Andrew Card, Karl Rove, Condoleezza Rice, Stephen Hadley, Dan 

Bartlett, and Scott McClellan and another ] 04 pages of additional 

interview reports of the Director of Central Intelligence, and eight other 

White House or Office ofthe Vice President officials. lsl 

The only documents the Justice Department declined to produce were the FBI 3025 with respect 

to the interviews oftbe Presidellt and the Vice President.' 82 Ultimately, the Committee relented 

in its pursuit of the President's 302,183 The Committee, however, persisted in its request for the 

176 Jd, 

177 Jd. 

In Jei. 

179 ld. 

180 H, Comm, on Oversight and Gov'! Ref, Draft Report. US House of Reps, Regarding ['resident Bush's Assertion 

qf Exec, Privilege in Response 10 (he Comm, Subpoena 10 All Y Gen, Michael B, Muiwsey, http://oversightarchive,waxman,house,gov/documentsI20081205114333,pdf (last visited Mar. 5, 2012), 18; lei. 

182 ld. 

183 Jei. 

42 
309 


74504D1-63.eps

DRAFT 

Vice President's 302. As a result, the President asserted executive privilege over that particular 

document. 184 

The Committee specifically included "302s" in its October 12, 2011 subpoena to the 

Attorney General regarding Fast and Furious. These subpoenaed "3025" do not include FBI 

interviews with White House personnel, or even any other Executive Branch employee. Still, in 

spite of past precedent, the Department has refused to produce those documents to the 

Committee or to allow staff an in camera review. 

In the 11 Oth Congress, the Committee investigated the fratricide of Army Corporal 

Patrick Tillman and the verac.ity ofthe account ofthe capture and rescue of Army Private Jessica 

Lynch. lss The Committee employed a multitude ofinvestigative tools, including hearings, 

transcribed interviews, and non-transcribed interviews. The Administration produced thousands 

of documents. 186 The Committee requested the following: 

[TJhe White House produce all documents received Of generated by any 

otlicial in the Executive Office of the President from April 22 until July I, 

2004, that related to Corporal Tillman. The Committee reviewed 

approximately 1,500 pages produced in response to this request. The 

documents produced to the Committee included e-mail communications 

between senior \Vhite HOllse officials holding the title of "Assistant to the 

President." According to the White HOllse, the White House withheld 

from the Committee only preliminary drafts of the speech President Bush 

delivered a the White HOllse Correspondents' Dinner 011 May 1,2004. 187 

The Department of Defense produced over 31,000 responsive documents, and the Committee 

received an unprecedented level of access to documents and personnel. 1Ei 

The Oversight and Government Reform Committee's investigations over the past five 

years demonstrate ample precedent for the production of a wide array of documents from the 

Executive Branch, In these investigations, the Committee received pre-decisional deliberative 

regulatory documents, documents pertaining to ongoing investigations, and communications 

between and among senior advisors to the President. The Committee's October 12, 2011 

subpoena calls for many ofthese same materials, inc.luding 302s and deliberative documents. 

Still, the Justice Department refuses to comply. 

FUlther, the number of documents the Department has produced during the Committee's 

rast and Furious investigation pales in comparison to those produced in conjunction with the 

Committee's prior investigations. In separate EPA investigations, the Committee received 

27,000 documents and 35,000 documents respectively. In the Patrick Tillman investigation, the 

184 fel. 

185 H. Comm. on Oversight and Gov', Ref, Camm. Report, Misleading Information From the B<lltiejield: rhe 

Tillman & Lynch Episodes, H. Rep. 110-858, Sept. 16,2008. 186 Jd. 

'" Jd. 

188 [d.; The minority views by HOll. Tom Davis states Ihat the Comm. received 50,000 pages of doc·uments "od 

reviewed additional documents in camera. 

43 
310 


74504D1-64.eps

DRAFT 

Committee received 31,000 documents. Moreover, in the Valerie Plame investigation, the 

Committee received access to highly sensitive materials despite the fact that the Justice 

Department was conducting a parallel criminal investigation. 

As ofMa), 1,2012, in the Fast and Furious investigation, in the light most favorable to 

the Department of Justice, it has "produc[ed) or [made] available over 7,300 pages of documents 

to the Committee" - a small fraction of what has been produced to the Committee in prior 

investigations and of what the Department has produced to the Inspector General in this 

matter. 1B9 This small number reflects the Department's lack of cooperation since the Committee 

sent its first letter to the Department about Fast and Furious on March 16, 20 II. 

189 Leller from Ass'! AIl'y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 19,2012). 
311 


74504D2-1.eps

Th e Deportment of Justice's Operation Fost and Furious: 

Fueling Cartel Violence 

JOINT STAFF IlF..PORT 

Pnpor«l for 

Rrp. DunU Eo Issa, Cb. i,man 

Ullllrd SUlts 1l0UM or Rrpruell'.'h'u 

ComllllltH on (h"rnllht I lld GOV~"'''~III Rdo, m 

• lI ltO ' Chlrlts F... G, "ul"" R.uklill Mrm", 

U.ltrd Slltn St1iale 

Committee on the Judldory 

Il l"Con~ru, 

July 25,101 1 
312 


74504D2-2.eps

Table of Contents 

I. Executive Summary ............................................................................................................... 4 

II. Findings ............................................................................................................................... 6 

IlL Weapons Traced to Ihe ATF Phoenix Field Division ..................................................... 7 

IV. Fast and Furious Weapons Recovered at Crime Scenes ................................................ 8 

A. Tracing the Recoveries ................................................................................................. 16 

B. The Naco, Mexico Recovery ........................................................................................ 17 

C. The Mexicali Reeovery ................................................................................................. 17 

D. The El Paso, Texas Recovery ...................................................................................... 18 

E. Tuesday Briefings at ATF He.dquarters ................................................................... 19 

F. .January 5, 2010 Briefing .............................................................................................. 20 

G. March 5, 2010 Briefing ................................................................................................ 23 

V. Kept in the Dark ............................................................................................................... 27 

A. Volume of Well pons Raises Eyebrows in Mexico ...................................................... 28 

B. Reassurances from Phoenix and Washington, D.C ................................................... 29 

VI. More Compl.ints and More Reassur.nccs .................................................................... 32 

A. Concerns Raised up the Chain of Command ................. "' ........... m .......................... 33 

B. A "Good Investigation" .............................................................................................. 38 

C. Lanny Breuer and the Department of Justice .......................................................... 39 

D. Still in the Dark ..................................... , ...................................................................... 40 

Eo Told Operation Fast and Furious Being SIIut Down ................ , ............................... 43 

F. Concerns Communicated to Deputy Assistant Director McMahon ........................ 45 

VII. Reaction of ATF Officials in Mexico .............................................................................. 49 

2 
313 


74504D2-3.eps

VUI. Persistent Consequences of Operation Fast and Furious ........................................ 54 

A. The Murder of Mario Gonzalez Rodriguez ............................................................... 54 

II. The Mexic." Helicopter Incident ............................................................................... 57 

IX. Conclusion ........................................................................................................................ 60 
314 


74504D2-4.eps

HThat is, I mean, this is the perfect storm of 

idiocy." 

-Carlos Canino, Acting ATF Attache in Mexico 

I. Executive ...: .. , ..... , ... < ..... , 

The previous joint stafTreport entitled The Department of Jus lice 's Operation Fast and 

Furious: Accounts ofATF Agents chronicled Operation Fast and Furious, a reckless program 

conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the 

couHlgeous A TF agents who came forward to expose it. Operation Fast mld Furious made 

unprecedented use ofa dangerous investigative technique known as "gunwalking," Rather than 

intervene and seize the illegally purchased fire.nus, ATF's Phoenix Field Division allowed 

kn0W11 "ltraw purchasers to walk away with the guns, over and over again. As a result, the 

weapons were transferred to criminals and !vfexican Drug Cartels. 

This report explores the elTect of Operation Fast and Furious on Mexico, Its lethal drug 

cartels ohtained AK-47 variants, l3arrelt ,50 caliber sniper rifles, .38 caliber revolvers, and FN 

five-seveNs from Arizona gun dealers who were cooperating with the ATF by continuing to sell 

to straw purchasers identified in Operation Fast and Furious, 

In late 2009, ATF officials stationed in Mexico began to notice a large volume of guns 

appearing there that were traced to the ATF's Phoenix Field Division, These weapons were 

increasingly recovered in great numbers from violent crime scenes. ATF intelligence anaiysts 

alerted Darren Gil, Attache to Mexico, and Carlos Canino, Deputy Attache, ,bout the abnormal 

number of weapons, Gil and Cnnino communicated their worries to leadership in Phoenix alld 

Washington, D,C" only to be brushed aside, Furthermore, AT!' personnel ill Arizona denied 

ATF personnel in Mexico access to crucial information about the case, even though the operation 

directly involved their joh duties and affected their host country, 

Rather than share infonnation, senior leadership within both ATF and the Department of 

Justice (DOn assured their representatives in Mexico that everything was "under control. I' The 

growing number ofweapolls recovered in Mexico, however, indicated othcnvise, Two 

recoveries oflarge numbers of weapons in November and December 2009 definitively 

demonstrated that Operation Fast and Furious weapons were heading to Mexico, In fact, to date, 

tllere have been 48 different recoveries of weapons in Mexico linked to Operation Fast and 

Furious. 

ATF officials in Mexico continued to raise the alam1 over the burgeoning number of 

weapons, By October 2010, the amount of seized and recovered weapons had "maxed out" 

4 
315 


74504D2-5.eps

space in the Phoenix Field Division evidence vault. l Nevertheless, ATF and DOJ failed to Rhare 

crucial details of Operation Fast and Furious with either their own employees stationed in 

Mexico or representatives of the Government of Mexico, ATF senior leadership allegedly feared 

that any such disclosure would compromise their investigation, lnstead, A'fF and DO} 

leadership's reluctance to share information may have only prolonged the flow of weapons from 

this straw purchasing ring lnto Mexico, 

ATF leadership finally informed the Mexican office that the investigation would be shut 

down as early as July 20 I 0, Operation Fast and Furious, however, continued through lhe rest of 

201 0, It ended only after U,S, Border Patrol Agent Brian TelT)' was murdered in December 2010 

with weapons linked to this investigation, Only then did the ATF officials in Mexico discover the 

true nature of Operation Fast and Furious, Unfortunately, Mexico and the United Stales will 

have to live with the consequences of this program for years (0 come, 

1 See Emmail from [ATF Evidence Vault Employee] to Hope MacAllister October 12, 2010 (HOGR ATF - 002131 ~ 

32). 
316 


74504D2-6.eps

II. 

In the rall of2009, ATF officials in Mexico began noticing a spike in guns recovered at 

Mexican crime scenes. Many of those guns traced directly to an ongoing investigation 

out of ATF's Phoenix Field Division, 

As Operation Fast and Furious progressed, there were numerous recoveries of large 

weapons caches in Mexico, These heavy-duty weapons included AK-47s, AR-15s, alld 

even Banett ,50 caliber rifles - the preferred weapons of drug cartels, 

At a March 5, 2010 briefing, ATF intelligence analysts told ATF and DOJ leadership that 

the number of fircanns bought by known straw purchasers had exceeded the 1,000 mark. 

The briefing also made clear these weapons were ending up in Mexico, 

A TF and DOJ leadership kept their own personnel in Mexico and Mexican government 

officials totally in the dark about all aspects ofFas! and Furious, Meanwhile, ATf 

officials in Mexico grew increasingly worried about the number of weapons ree-overed in 

Mexico that traced back to an ongoing investigation out of ATF's Phoenix Field 

Division. 

A TF officials in Mexico raised their concerns about the number of weapons recovered up 

the chain of command to ATF leadership in Washington, D"C. Instead of acting 

decisively to end Fast and Furious, the senior leadership at both ATF and DO] praised the 

investigation and the positive results it had produced, Frustrations reached a boiling 

point, leading former A TF AttadlC Darren Gil to engage in screaming matches with his 

supervisor, International AfTairs Chief Daniel Kumar, about the need to shut down the 

Phoenix-based investigation, 

Despite assurances that the program would be shut down as early as March 2010, it took 

the murder of a U,S, Border Patrol Agent in December 2010 to actually bring the 

program to a close. 

A TF officials in Mexico finally realized the truth: A TF allowed guns to walk. By 

withholding this critical information from its own personnel in Mexico, ATF jeopardized 

relations between the u.s, and Mexico" 

The high-risk tactics of cessation of surveillance, gunwalking, and non-interdiction of 

weapons that ATF used in Operation Fast and Furious went against the core of ATF's 

mission) as well ns the training ami Held experience of its agents. These flaws inherent in 

Operation Fa~t and Furious made its tragic consequences inevitable. 

6 
317 


74504D2-7.eps

m. Traced to the ATF Phoenix Field Division 

FINDING: In the ran of 2009, ATF official. in Mexico began noticing. 'pike in gun. 

recovered at Mexican crime scenes. Many of tliose gun. traced directly to an 

ongoing invesligation out of ATF', Phoenix Field Division. 

Starting in late 2009, ATF officials in Mexico noticed" growing number of weapons 

appearing in Mexico that were traced to the ATF', Phoenix Field Division. Completely unaware 

of Operation Fast and Furious at the time, Carlos Canino, then Depu1y Attache to Mexico, was 

surprised w:ten he learned of the number of weapons seized in Mexico that were connected to 

this one case in Phoenix. Canino explained: 

Either late October, early November, mid November, 2009, I was 

infoffi1ed about the large number of guns Iha! have made it on to the 

suspect gun database relating to tbis investigation [Operation Fast and 

Furious]. That is when I became p.ware, okay they just opened up this case 

in October 01"09, and I thought, wow, look at all these guns. 

I thought two things: I thought, okay, all these guns, the reason ull these 

guns are here is because we are finally on to these guy" and we went back 

and did our due diligence and found out that these guys had already beaten 

us for 900 guns. That was one oflhe things I thought.' 

Canino infonned hi' boss, then A TF Attache 10 Mexico, Darren Gil, about an unusual amount of 

weapons being seized in Mexico. Gil stated: 

[ rememher the event that my chief analyst and my deputy came in and 

said, hey, we're getting t'1is abnonnal number of weapons that are being 

seized in Mexico and they're all eoming back to the Phoenix field 

division. So that was my first awareness of this regarding anything to do 

with this case, 3 

A TF officials in Mexico never received any notice or warning from ATF in Phoenix or 

Washington, D.C. about the possibility of a spike in guns showing up in their bost country. 

Instead: they began to suspect something was amiss as an inordinate number of weapons 

recovcwd in Mexico traced back to the Pboenix Field Division. 

The weapons were being seized from violent crime scenes involving Mexican drug 

cartels. One of the early scjzures occurred after a shoot-out between w~'1'ing cartels. Canino 

described leoming about this incident: 

}. Canino Transcript, at 11. Carlos Canino became the Acting Attache in October 20]0, Prior to this time, he served 

as the Deputy Attache. 

3 Transcribec Interview of Darren Gil, Transcript, at 13 (May 12,2011) (on me ..... ith authm) [hereinafter Gil 

Transcripl] . 
318 


74504D2-8.eps

Q. When was the next time that you got some information about 

Operation Fast and Furious after October, 2009" 

A, I need to go back and check. but I was approached by an ICE agent 

at the U,S. embassy, and he showed me some pictures of a shootup 

between the Sinoloa cartel and the La Familia cartel in a small 

town up in the mountains of Sonora, He asked ,- I saw the picture 

a lot of dead bodleS he told me that the Sinaloa cartel had come 

into the area (0 try to push out the La Familia cartel, the La Familia 

cartel had ambushed the Sinoloans up in the mountains, and 

literally decimated the group. There was some fireanns recovered 

on the scenc, He asked if we could trace the guns, and we did. 

When we got ,he traces back, I believe two or three gUlls had come 

back to the case number that is now known as Operation Fast and 

Furious. 

I believe I reached out to ATF Group VII special agent Tonya 

English via email and I notified her that some of the firearms in 

her case had been recovered as a homicide, what were they 

planning, what were they planning to do, what is going on with this 

casc?4 

According to Canino, he did not receive any infonnation about the operation's future 

plans or an explanation for the growing number of weapons being recovered at Mexican crime 

scenes linked to Operation Fast and Furious,s However, these seizures were only the beginning. 

Over the next several months. an alam1ing number of weapons would be ,eizod in Mexico and 

traced to Phoenix. 

IV. Fast and Furious Recovered at Crime Scenes 

FINDING: As Operation Fast and Furious progressed, there were "nmerous recoveries 

of large weapons caelles in Mexico. These heavy-duty weapons included AK47s, AR-15s, and even Barrett .50 caliber rifles - the preferred weapons of 

drug cartels. 

The following chart represents a list of recoveries in lVlexico where weapons found were 

(raced back to Operation Fast and Furious. Despite its length, this list is not complete. Rather, 

this list is compiled solely from information the Justice Department has provided to date, Many 

more recoveries may have occurred and will continue to occur in the future, but it is impossible 

to detennine precisely how many weapons recoveries in I'v1cxico trace back to Opemtion Fast and 

4 Canino Transcript, at 9-10, 

~ ld. at. 10. 
319 


74504D2-9.eps

Furious. So far, the Justice Department has provitied document, that reference at least 48 

separate recoveries involving 122 weapons connected to Operation Fast and Furious. 

~, , lj.ofFllSI 

'lIl!ll 

F'u,"jp,uS' 

NecoHrv (FiUlls 

'If.' Qllt!:' lfuoe,ltiolt , Nulcs U;II Reco,ery R<tco\ c'A! 

Costa Grande, 

t-_-::-_+-,-=.::;";=",~+~~_~G",7U,,,e=rr~~~.~~_ 2 

15 AK 47,,3 guns, 9 guns tra,ed to 

Operation Fast and Furious,,6:-_t---:-:-_1 

41 AK:4-7;-~;dj50 caliber:-~Time- 42 

111201200~_ 

1-_3_-j __ l_ll~§!2_0_09 

4 

to-crilT!e," the period between the 

purchase date and the recovery date, 

of 1 day. Two mUltiple sales 

_-,N-,-la=cc".o""~S-"o~n-,-o,,ra~~_+-.:sumnlaries linked to this seizure? 

. Agua l'!ieta,~.2!,ora 15~j fle~L~J'i;t';i~.1.tr~£;iij"I~PJJ'. $2 million US, $1 million Mexican, 

421 kilos cocaine, 60 kilos meth, 41 

AK-47s, 5 traced to Operation Fast 

t-_-:-_+_:l"'2"'/9,,1.:::2"'O.:c.09;....+ __ ~~xiE.~1i, Ba"'ia'---_t-=:-:,~ __ . and FuriQ.II,s.:. ____ =_+_--:-_--1 "EI Teo" link, 5 AK-47 type rifles 

12118/2009 

6 

12118/2009 Tijnana, Baia 

7 

, I 

L,_L_I!J.!.f2.Q~LGl1asave, Sin.loa 

recovered and I linked to S1' 2 : 0 

Traced to weapons bought 

11/1310911 

11El Teoll lirrk, 2 guns to 2 

bought by [SP 2J on 12/13/09 and 

SPI 12 -~~ 2,700 rounds of ammo, 3 belts of I 

rounds, 9 rifles, 2 g.re.n.". de lalffiCheru, I 1 gun traced to Operation Fast and 

! Fur.:c.io~u~s_l:_' ____ _ 

6 E-mail [rom TQuya English to David Vcth March 09, 2010 (HOOR ATF - 001803-12), 

7 E-mail from William Newell to Lorren Leadmon Novem~er 25, 2009 (BOGR ATF - 002141); see also e-mail 

from [ATF NTC] to Hope MacAllister December 9, 2009 (HOOR ATF --- 002205-(6): see alsf) e-mail ~rom Murk 

Chait to William Newell, Danic~ Kumor November 25,2009 (HOOR ATP -- 001993). 

8 See gen-craily "OperatlOtl The Fast and The Furious" Presentation, March 5, 2010. 

9 E-mail from [ATF NTC] to TOl1YI'I English, [ATF Group '7 SA], Hope !vIacAliistcr, Davld VOlh Janue..ry 8, 2010 

(HOGR ATP - 002210-11); see also e-mail from fATF Tijuana Field Office Agent) to David Voth February 24, 

2010 (HOGR ATF - 002301); "Operation The Fast anJ Hie Fu:::ioU3" Presentation, March 5, 2010. 

Ie E-mail from [ATF Intelligence Specialistj to tATF Group 7 SAl, Hope MacAllister, Tonya E'!1glish, DDVid Voth 

January 13, 2010 (HOGR ATF - 002166- 70) 

11 E-mail from [ATF NTCJ to Hope MacA!Iister December 29,2009 (HOOR ATF - 002208p09). 

12 E-mail from Lorren Leadmon to [ATF Inlclligcnce SpecialistJ, [ATF Group 7 SA~, Hope MacAllister, Tcny 

Enel~sh, Dnvid Voth, [ATF Analyst Chief- Mexwu] JltlltHUY 18,2010 (HOGR ATF -- 002112); sec aiso (:amniI 

from Tonya English to Hope MacAllister January 14, 2010 (HOOR ATF -- 002214-15); see also e-mail from [ATF 

Tijuana Field Office Agent] to David Voth Februa...---y 24, 201 C (HOGR ATF - 0023(1). 

D E-m<,.iI from [ATF Intelligence Analyst] :0 David \'olh March 9, 20ID (HOGR ATF - 002307-08). 

9 
320 


74504D2-10.eps

" "liarI'll.! 

Utnt 

Furious 

Ihl"m'C1~ , , ~UIlS 

, 11 /):llrc Lwutjoll , , NO(i'~ Oll H.c~,(IY(trx t~{'Cllt"rtcl 

9 4th recoverY related to "EI Teo" 

.. _~_~~.~~~~ .. !?_al~"-_+ __ ,--_c""o::!rg",' a.,n.";z""a"l",io",n,,," 

15 rifles, 5 handguns, 11 ,6z4'rouods " 

of ammunition. At least 4 v-lt~apons 

4 

~,_+--,2::../",2e;1!.='2",O-,-1"-O_+--,S""I",'n",a,,,lo,,,a,,-"~~~"---- ___ ""1:r"ced to [Sl,' llo:"-:--;;:--::-_t--~-I II "El Teo" link, attempted State Police 

~~+. 2/25/2010 

12 

Chief assassination, ~uns traced to 

',,"_, ",_,J§P 41' __ _ 5 weapons traced back to Operation 

Fast and Furious purchased by [SF 

1--_;'~" __ II,"""3":1"1,1,'4~120",11",--O,t",,,;:,,Ju,,,a,","re,,,z,,-. C",h",i""hl",'"",h""ua"", ~_c;-;,:.,2=!LrS!,:J12Il<llS!'~1'~ ___ f' ___ "" 

13 6 rilles, 1,377 rounds of ammo, 1 

traced back to Operation Fast and 

1 __ :-:-_+-,6::..1""15::.:':::'2:::0,,1,""O_j~,l<;o",-ql:::!e:::I,,,Te::.:r:::a_+cc-c-~"=_ Furious" 

1---,,,: 14 __ +,"_6,,,/,-;2,,,41,,,2,0"",-,1 O~ __ , __ !'Juana, Baja I 6 AK-47 type to 

firearms, 

[SP 2~--------J. 5 traced back t:J ____ ~ 

15 I DTO battle, 15 fire.nns seized. 12 1 

I 

rifles, 3 pistols, 1 traced to OperatlOn 

7/1/2010 , Tubutama, Sonora Fast Funous'o 

-fiiI i > 1 25 AK~47 nfles, 78 magaZInes, over I 1 : 

I

I i 8,000 rounds of.mmo, I AK.4;, I 

1--___ +---'-7!/;4"'/2ocO"-1"O'--i, Naval~a,-Sanor" _1!~c"d!o lSP lL~/1n 0 purchase _[ '\ 

17 I Grenade launcher, 2 submachine' 1 

~_~_~_-i._..,;7..,;/8::./,;:2c:O.:.l.:.O_-L. __ C=u=h.:.ac=an= Jl~in~~~,,8!111,,~1-"-110!li'!ns, 1,278 , . 

generally "Operation the Fast and the Fur!o'.,.!s" Presentation, March 5, 2010. 

E-mail from Tonya English to lICE Agent! March ]9,2010 (HOGR ATF - OOl 1\13-15); see a!,','() e-mail from 

David Voth to Tanya English, Hope lvlacAilister, fA TF 7 SA l1vlarch 22, 2010 (IIOGR A IF - 0021 t4m 15); 

see aim e-mail from Lorrcn Lcadmon tn David Voth, [ATF Chlef - l\·1cxico 1 Murch 11, 2010 (HOOR A TP 

- 002131-40); see also emmail from Lomm L'-':ftdr.lOn to DaVid tAT1' Analyst Chief - Mexico 1 March 11,20 I 0 

(HOGR ATF - 002315-16). 

16 E-m<lil [rom David Voth to Emory Hurley February 26, 2010 (HOOR ATf- 002271-72). 

17 E-mail from lATF SAl to Hope MacAllister, Tonya English, [ATF E1 Paso SN April 29, 2010 (HOGRATFE~maii ~ATF Mexico City SA] to Tonya English Jomwry 26, 2011 (HOGR ATF - 00l863-65), 

;9 E-mait from [ATF SA-EPIC] to Tony!! English Jul) 1,2010 (HOOR ATF -- 001821); see aisu e-nul.ii from [ATF 

NTCJ to To"y" English July 1,2010 (HOGR A Tr - 0;)1824). 

20 E-mail from Dav:d Vom to Carlos CBfllno July 14,2010 (HOGR ATF - 002378-2379). 

), E-mail [r:lm [ATF SA-EPIC] to Tot1ya English Aueust 3, 20W (HOOR ATF - 001726-27); see also e-mail from 

[ATF NTC] to HopL' MacAllister, Tonyo. English JUly 15,2010 (HOGR ATF - 001729-1730); see Clj.~o e-mo.iI from 

David Voth ~o Tonya English July 30, 2010 (HOUR ATF -- 001742-43); see aiso e-mail from Tanya English to 

[ATF SA-EPICj, [ATF Analyst] July 29, 2010 (HOGR ATF -001796,97), 

10 
321 


74504D2-11.eps

#loi'J""t tU1U 

f~ut'jous 

J{CC!!\ cry r;Ulls 

,'#' iI,)atg ~ I,QI:~\lion', l!ioteSiU(j R~~.rwry , He~"nWfd 

r 

rounds of ammo 1 flfle traced to 

Operation' Fas; and Furious" 

I-----+--~-+-------~~ ----'" 18 5 handguns, 15 rifles, 70 aflDared 

vests, night vision goggles, 1 traced 

1 

f--___ + __ ''''tI.2li20 10 ___ ELll.0ble, Durango to [SP l] 3/2211 0 purchase" I Barrett 50 caliber traced to [SP 1] 1 

i----;=_+-'==="-+_D=u .. ran~l""g(~:,Ql!r~I__-----JlllE"ll<t.se on}{~2Jl 0

24 ____ ~_-- , Romarrn 762s traced to 12/17/09 I 

~_I __ QhihUahU"J::hihuahua ' purchase25 ______ " 

Sinaloa de Leyva, Barrett 50 caliber traced to Operation 1 

Sinaloa Fas! and Furious, bought 61811026 

i---~~---+-==='-.-+---==='---i--l~6c"roci'fl='~;'-ilOni;gazines, 36 bullet-

-'-===_-i--__ Saotiago, Durango 

S';ntiago Papasquiaro, 

==="'--f ___ .l2urallgo 

proof vests, 1 rifle traced to 

Operation Fas! and Furious" 

Romal111/Cugir 762 traced to 

Operation F as! and F;,;ur",l",' O::;U::;S'-,8-,---ii--_c------1 

16 fireanns including Barrett 50 1 

caliber, 69 magazines) 2,060 rounds 

of ammo, 1 "vcapon traced to 

EI Na~"-nj()'_Sinalo"__~ __ ~_Operati,.!' Fast ~nd Furious" 1--::-::--+--'"-'-""-"''-''-----+''=--'-'= Romaflu/Cugir 762 traced to 

Operation Fast and Furious, bought 

Nogales, Sonox~,---+ ____ -,1=2,--/l'-c4,,-:O,,-9,:-):--o_--:c-__ + ___ _ RomarrnlCugir 762 traced to I 

Operation Fast and Furious, bought 

San Luis, Son"-ot,,,'a'-.--,--_ 12114/09)1 

22 E-mail rrom [ATF SA-EPICl to Ho?e MacAllls!er, Tonya English July 2010 (HOGR ATF ~ 001717-18); see 

e-mail from [ATf NTCJ to Hope MacAllister, Tonya English July IS, (BOOR ATF - OOI723), 

E-mail from [ATF SA·EPIC] toHopeMacA[ister,lonyaEnglish,[ATFGroup7SA]Augl:.st 3, 7,010 (HOGR 

ATF-001731-J2), 

N E-mail [rom [A'll' NTCl to Hope. M~cAllister, Tonya English, [ATF Group 7 SA] July 28, 2010 (HOOR ATF001735-36); see aim e-mail from tATF Firearms SpecialistJ to Tonya English, :ATF Group 7 SA], Hope 

MacAllister June 10, 7.0JO (HOGR ATF - 002117-20), 

1~ E-mail from [ATF NTC] to Hope MacAllister, Tanya Engli~h, [ATF Group 7 SA] Ja...'1uary 21, 2011 {llOGR ATF 

from fATFNTCj to Tanya English, Hope- MacAllister August 13, 2010 (HOGR AT!' - 002013-14). 

from [A TF SA-EPIC] to Hope MacAllister, Tanya English October] R, 2010 (HOOR ATF - 002178). 

Eamail from [ATFNTC] to Hop:;: MacAlhstcr, Tonya English October 18,2010 (HOGR ATF ._. 002181-82). 

E-mll.iI [rem [ATF Investigative Specialist] to [ATF NTC]. Hop¢ M:;>cAl~ister, TOll)'.? Fngl.ish Augu.st 23. 2010 

(HOOR ATF -- 002174-75), 

1[1 E-mail from lATF SA-EPIC] W [ATF Group 7 SA], Hope MacAllister, Tonya English September 15, 2010 

(HOORATF -002J2J-24), 

11 
322 


74504D2-12.eps

3] E.mail from fATF SA-EPIC] to [ATF Gro'.lp 7 SA], Hope MacAllister, Tonya English September 15, 2010 

(HOGR An - 002121-22). 

32 E.mnil frorn [ATF S~-EPICJ to [ATF Group 7 SAl. Hope MacAllister, Tanya English September 20, 2010 

(HOGR ATF - 0021 86-87). 

B E.-mail from [ATF ~TCJ to Hopt" \tlacAlIister, Tanya English Sepi;ember 17, 2010 (HOGR ATF - 001744-45); 

see also c-m3il from[ATf NTCl to Hope MacAHister, Tonya English September 14, 2010 (HOGR ATF - 001748-

49); see also e-mail from [ATF NTC] to Tonya English, Hope MacAllister September 20,2010 (HOGR ATF001754-55) . 

• \4 E-mail from [ATF NTC] to Hope MacAllister, Tonya Englis':1 September 16, 2010 (HOGR ATF - 001746); see 

a/so e-mail from [ATF SA-EPICl to Hope MacA lli:;ter, Tanya English, r A TF Group 7 SA] September 20, 2010 

(HOOR AT\<" - 001 752-531. 

35 E-mail from Hope M-acAlhsicr to [AUSA AZ District] Novemb.;:r 29, 2010 (HOGR ATF -- 001798-99). 

J6 E-mail from [ATF Investigative Specialist] toHopeMacAllister,[ATFNTCl,[ATFNTC] October28,JOlO 

(HOGR ATF - 001756-59). 

37 E-mJ-il from iA TF NTCJ to Hope !VlacAllister, Tonya English October 7, 20 I 0 (HOGR ATF - 002126-27), 

38 E-mail fhml fATF ~TCl to Hope MacAlliste:.-, Tanya English October 26, 2010 (HOGR AT1' - 001831':'U). 

39 E-mail from [ATP NTC] to Hope MacAllister, Tanya English October 15, 2010 (HOGR A Tf - 002129-2130). 

4() E-mail fwm [ATF NTC~ to Hope MacAl1isLcr, Tonya English, [ATF Group 7 SA] November 19,2010 (HOGR 

002003-04). 

E-mail from ~ATF NTCJ to Hope MacAlllster, Tonya English, [ATF Group 7 SA] "KovemJer 19,2010 (HOGR 

ATF -- 002001-02). 

12 
323 


74504D2-13.eps

Operation Fast and Furious, bought 

L ___ ._~~-L_-,lc.1 ~='. ''''"/.:;2'''O.:.'.:.I_.L.......-:==='-'S'''i=ll=.=lo,=a=_ ... ..L _____ .... . ,3,./.,811 0" 

42 E-mail from [ATF NTC] to Hope MacAllister, [ATF Group 7 SA], Tonya English December 15, 20tO (HOCR 

AfF 002190 m 91). 

43 E-mail from Hope MacAllister to [AVSA AZ DistrictJ November 29', 2010 (HOGR ATF - 001798). 

44 E-mail from Hope MacAllister to [AUSA AZ District] November 29,2010 (HOGR ATF - 001799). 

45 E-mail from Tanya English to DaYid V0th November 15, 2010 (lIOGR ATF - 001792). 

46 b-mail fJom [ATF ~TC] to Hope MacAllister, Tonya English Noverr;ber 24, 2010 (HOGR ATF - 001833~38); 

see also e.~nu;il from [ATF SA-EPICl to Hope MacAllister, TonYfi English December 8.2010 (HOGR ATF0021 BS·89). 

47 E-mflil from [ATF NTCl Lo Hope MacAllister, Tonya English December 28, 2010 (HOGR ATF - 001842-51). 

1~ E-majl from [ATF SA-EPIC] 10 Hope MacAllister, Tonya English, [ATF Group 7 SA] December 22,2010 

(HOGR ATF - 00J352·55). 

49 L-rr.all from [ATF SA-EPIC] to Hope MaGA lEster, Tanya English March 21, 2011 (HOGR A TF - 001874~ 77); 

s(,f'also e-mail from [.A"TF NTCJ to Hope MacAllister, Tonya English March 17,2011 (HOGR ATF -001885-86). 

50 E-mail from [ATF SA-EPICJ to Hop..: MacAll1ster, Tonya Engli:;h. [ATF Group 7 SAj February 2. 2011 (HOaR 

ATF - 002192~93); sr€ also e-mail from lATF NTC] to Hope MacAllister, Tonya English, [ATF GrmJp 7 SA] 

Jenuary J 8, 2011 (HOGR ATF - (J02196·97). 

51 E-mail from [ATF NTC] to Hope MacAlllster, Tonya English, [ATF Group 7 SA] March 21, .2011 (HOGR ATF00 J ~33·'4). 

13 
324 


74504D2-14.eps

I 'Itl)fhlst 

;lIn! 

Fl~.-iouS; 

RI;,tllVcry (; ultS 

tI' 1~;t1c, r;J)cuttm' NTht~~ !Ill R"y,,,,el'~ !lQC'!\'cr~d 

~ I Barrett 50 cahber traced to OperatIOn I I ! 

48 

214/2011 Juarez, Chlbua,,,lm"'""----+-_Fo.:'fi""'st and Fur'cous, bougbt ~2/10': __ -----1 

16,000 

37 rifles, 

rounds 

3 grenade 

of ammo, launchers. I F!reann ~ 

l I traced to OperatIOn Fast andsfurious, 

2/19/2011 Navaloa, Sonor_a~~1 _ Et~~hase~.~_n}l80Q ___ ~_~"~ I 

~_~ __ ... ~ --- -. L TOTAL ~~_2_4_, 

Tbese documented reeoYeries indicate tbat a significant number of Operation Fast and 

furious guns ended up in Mexico. However, tbere arc indications that the numbers c.ould be 

larger. For example. within 24 hours orlhe murcier of Border Patrol Agent Urian Terry, Special 

Agcnt in Charge (SAC) Bill Newell asked for the total number of Operation Fast and Furious 

fireamls recovered to date in Mexico and the U.S." Five days Ialer, on December 21, 2010, 

Newell forwarded the totals to his boss, Deputy Assistant Di~ector William [VleMahon, indicating 

that he had the numbers compiled because, "I don't like the perception Ihat we allowed guns to 

'walk."'" According to the tally Newell received on December 16,2010, approximately 241 

firearms had been recovered in Mexico and 350 in the U.S." The number reported to Newell as 

recovered in Mexico as ofthe day after Agent Terry's death is twice what can be veril1ed 

through documents produced by the Department of Justice as outlined in the table above. 

Furthcnnore, this number is much higher than the 96 fireOlms reported by the Department of 

Justice as recovered in 1-1cxico in answer~ to questions for the record received on July 22: 

20] l," 

52 E-mai: from [ATF NTCJ to Hope MacAlli'lter, Tonya English, rATf Group 7 SA] February 17, 2011 (HOOR 

ATF - 001859M62)~ sc::e at30 e-mail from [ATF SA~EPIC] to Hope MacAllister, Tunya Engl:sh, [ATF Group 7 SA] 

March 21, 2011 (HOOR ATF - 001880-82); see also e-mail from [ATF NTC] to Hope MacAlli:;ler, Tonya English, 

[ATF Group 7 SA] February 17. 2011 (HO(1R I\TF - 002020-21). 

53 E-mail from [ATF SA-EPIC] to Hope MacAllister, Tonya English, [ATF G!'Oup 7 SA] March 7, 2011 (HOGR 

ATF - 002198-99); see E-milil from [ATF ~TCl to Hope MacAllister, Tanya English, IATF Group 7 SA] March 1, 

20 II (HOGR ATF - 002202·03). 

54 This lotal of 122 guns is based on documents produced to the Committees by DO] und total reprcfS'ents the 

minimum number of gUll'< recovered in Mexico as ide:ntilied by the Committees. 

5.5 E~mail from David Voth to William Newell December 16,2010, 7:22pm (HOGR ATF -001935). 5oS l

d. 

~7 Id. 

5Stetter from Ronald Weich, A"st. AH'y Gen., U.S. Dep't of Justice, to Se:nutor Pabck Leahy. Chainnan, Senate 

.Iud. Comm., July 22, 2011,14 ("Bafied on information known to ATF and analyzed as of May 26, 2011, we 

undershmd that ninety-six (96) firearms were recovered in Mexico after th~ snspect$ were identified in the 

investIgation.") . 

14 
325 


74504D2-15.eps

P'rum:. McMllhr;l1I, Wime.m-O. Set\lt~ 'fuesdri)', Ol'oolllbvr"'lJ. 2010' 1;21 AM 

Tu: Newell. Willltlm D. 

Sub.1c(lu RE: gimple numbars on P&F rccovcric5 

~--------- ---

For what Ws 'f,!(irlh'dl1Cf $f!;M ,t;lclt'lllktf !flo pfift.'6plfOO II'-.!ll WI] lilfowM gums 10 '\oia!k~, I had Oavid VO!!'! pull the rlumoora 'Ill 1M I!1tH1B: '$[/O)j.'ij~d,ln Madlm .6$Wr;11 M1ho$'ft WtfhlM:l's (f,'Iectto!a In 1akfPi't clft;of.s b ttJl\ US, At:TIQ/j1 all.o.' th!).3OO 

~o'Zod in V'le US WVrtl ifuflQ! DaG.;a on QiJ.f jj';to ill;.Q 'In lIUcb \'( WG'! 11;1 f~oll;lllm the wlfs or comp-roml18 ihe b1000r CM6. Tho gUile purC:hiht~t.l-ilar1~ ¢f\1r1l.h1l ease we roulOO't ha'IQ '!itOPfl~d mall'l!1' Mea,llS9-we wfl1ijn~ tully aWtltfG 01 iilli IhQ plft.y~~ al that ~mc lind plJOple bl.lyiA(I f'\1uiliple llrallrtlllli In Arizona Ii. iI. \((try (Wrm'l.Oll \I,iljg. 

NOTreE: 1hi!l-.elool1or'l!c ImnfillllS5im', \lJ Q;)!'!~d<I()lljll mnd m!i1nOud Of11)' J')f 1M pCf!J,CM{a: 10 who'l!) it:~ atidroQs.ad. Ii y()U 

havo rocG1\iOO !hie tmn::;unlmoiOf1 in-orrcf. pfo~aQ nutrfy ~he ~Slll.lltr by rfilJrn c,mlll! anti dGSlroy \h1(l m(>l>oo.g.e.ln il$ !i'iWEl:fy !!I1CIVdlng 1I11 nlruCl1rrw.m!5J, 

From: Voth, ~id J. 

TOI: Newell, WIII!;1M O. 

sam:: Th\j Doc 1619<.l:4ll01Q subject: siJ"r;[:\!e nlffl'\ber!l OIl F&f re."JJVer,es 

Sir, 

4- ~!re~rms O!l::()o\l(lrt'!ti Jo MI;:)\!oo" l,ti 

flreilrl'M TitCtW\t~d lit Ii'IG USA'" SSO 

Ob'lid'lI'Jrth 

Group Supervl500r 

fl'hlJ(lnhtCkl;l"E VII 

More troubling, several of these recoveries highlight the (leadly consequences afOperation Fast 

and Furious.59 

59 See Se-ction vn infl-a. page 48 for an in-depth Jook at l~e tragic consequences ofOpemlion F~st and Furious. 

15 
326 


74504D2-16.eps

A. Tracing the Recoveries 

ATF officials in Mexico learned about many of these recoveries through open sourcing, 

such as articles in local newspapers or internet searches. After learning oft.1esc recoveries, 

however, it was incumbent on ATF employees in Mexico to attempt to view the weapons 

recovered as soon as possible in order to see if any link existed bctween the weapon and the 

United States, Mexican authorities transported the seIzed weapons to local police stations for 

processing, Once processed, the authOlities (umed the weapons over to the Mexican military, 

which stored them in vaults indefinitely, Once the Mexican military acquired these weapons, 

they were considered to bc for the exclusive use of the military, and viewing them required a 

court order, It W(.lS therefore imperative for ATF agents in Mexico attempt to view the weapons 

as soon as possible after a recovery. 

Whcn ATF agents in Mexico were able to view these recovered weapons, they could also 

enter the serial numbers of the weapons into an online internal tracing system known as e-Trace. 

A TF has a procedure for tracing weapons. This initiates a manual tracing process which 

involves notirying the National Tracing Center (NTC), located in Martinsburg, WV, oflhe 

recovery, NTC then identifies the purchaser as well as the date of purchase, The process can 

take several days, ATF also maintains a Suspect Gun Database (SGD), This database is a list of 

all the guns purchased that ATF believes might tum up at erime scenes, Since no specific 

criteria exist for entering a gun into the SGD, it is usually up to the case agent's discretion, 

During Operation Fast and Furious, Group VII case agents entered over 1,900 !,'lms into the 

SOD, usually within days oflhe purchase, Since these weapons were already in the SGD, the 

case agent would receive notice the trace request was submitted and the full manual trace process 

was unnecessary. 

Starting in late 2009, ATF officials in Mexico began to notice that many of the weapon 

recoveries in Mexko traced back to the Rame Phoenix investigation, A TF personnel in Mexico 

called the Phoenix Field Division to nodry them of what was occurring, The response from 

Phoenix was :hat everything was under control and nol to worry about the investigation, 

Because the guns were in the SGD, the case agent in Phoenix received notice of trace requests. 

The case agent could limit the information that other ATF officials would receive to merely a 

notice that the trace results were "delayed," which effectively kept ATF personnel in Mexico out 

of the loop, 

For example, in June 2010, Hope MacAllister, the Operation Fast and Furious case agent 

asked an NTC employee to postpone the completion of several traces for guns recovered in 

Mexico, With the subject line "RE: Suspect Gun Notification - DO NOT Trace ?," the 

empl\)yce writes" "Good "mrning, as case agent you advised 'do no! trace', [tJrace will be held 

]1Cllding Upn" y()m im;tructit)IlS,""o In her response, MacAllisler asks, "Call we postpone 

cOlnpleling that trace as well'! Thanks!"'" These holds prevented ATF personnel in Mexico 

from discovering the origin of the recovered guns, 

~o ERmail from [NTC employeel to Tonya English a.nd Hope MacAllister, June 10,2010 (EDGR ATf M 002114), 

61 EMffiuil ffUm Hope MacAllister to [~TC :5U1ployec], June II, 2010 (HOGR ATF 002117) 

16 
327 


74504D2-17.eps

To make matters worse, ATF officials in Mexico did not even know that their fellow 

agents were shutting them out of the investigation. With reassmance, from ATF Phoenix and 

ATF Headquarters in Washington D.C. that things were under control, ATF omcials in Mexico 

remained unaware that ATF was implementing a strategy of allowing straw purchasers to 

continue to transfer firearms \0 traffickers. Even though large recoveries were taking place in 

Mexico, with the awareness of senior A TF officials in both Phoenix and Washington D.C, ATF 

offieials in :V!exico did not have the full piotnre. What they were able to piece together based on 

several large weapons seizures made them extremely nervous. 

B. The Naco, Mexico Recovery 

The first large recovery of weapons in Mexico linked to Operation Fast and Furious 

occurred on November 20, 2009, in Naco, Sonora -located on the U.S.!Mexico border. All of 

the 42 weapons recovered in Naco traced back \0 Operation Fast and Furious straw purchasers. 

Forty-one of!hese we.pons were AK-47 rifles and one was a Beowulf .50 caliber rifle. Twenty 

of the weapons in this recovery were reported on multiple sales summaries by ATF1 and these 

weapons had a ''time-to-crime'' of just one day.6:! Within a span of24 hours, a straw purchaser 

bought guns at a gun store in Arizona and facilitated their transpon to Naco, Mexico with the 

intent of delivering the guns to the Sinaloa cartel. 

Mexican authorities arrested the person transporting these weapons, a 21-year old female, 

Mexican authorities interviewed her along with her brother, who was also in the vehicle. 

According to an official in AlF's Office of Strategic Information and Intelligence COSIIl, the 

female suspect told law enforcemenl that she intended to transport the weapons straight (0 the 

Sinaloa cartel."" From the very tirst recovery of weapons ATF officials knew that drug 

trafficking organizations (DTOs) were using these straw purchasers. 

C. The Mexicali Recovery 

Nearly three weeks after the Naco recovery, an even bigger weapons seizure occurred in 

Mexicoli, the capital ofthe state of Baja California, located near the border. The seizure 

included the following weapons: 

41 AK-47 rifles 

1 AR-15 rifle 

1 FN 5.7 

In addition, 1vlexic3ll authorities sejzed the following items: 

421 kilograms of coe·aine 

60 kilograms of methamphetamine 

392 rounds of ammunition 

$2 million U.s. dollars 

62 E-mail from Mark Chait:o William Newell and DEl.::licl Kumor, November 25, 2009 (HOGR ATF - 001993)0 

63 Interview with Lorren Leadmon, Intelligence Operations Speci~li3t, in Wtl.sh., D.C., July 5, 2011. 

17 
328 


74504D2-18.eps

$1 million Mexican pesos 

Ofthe twelve suspects detained, all were from the state of Sinaloa," Several were identificu 

members of the Sinaloa carteL 6S The guns recovered al the scene traced hack to straw purchasers 

being monitored under ATFs Operation Fast and Furious," With a second large recovery tracbg 

to the same case in Phoenix in less than three weeks, there was little doubt to ATF officials 

monitoring Operation Fas! and Furious what was happening, As one ATF Special Agent wrote 

to Fast and Furious Case Agent Hope MacAllister, "[the head o[the Sinaloa cartel] i. arming 

for :a war, .,67 

D, The HI Paso, Texas Recovery 

On January 13,2010, the ATF Dallas Field Division seized 40 rifles traced to Operation 

Fast and Furious suspect [SP 2]," This seizure connected Operation Fast and Furious suspects 

with a specific high-level "plaza boss" in the Sinaloa DTO," Additionally, this ,eizme may 

have represented a shift in the movement of Operation Fast and Furious weupons. in order to 

provide the necessary fircamlS for the Sinaloa Cartel's battle for control of the Juarez drug 

smuggling conidor?) 

This possible shift of Operation FOBt and Furious weapons may have been a result of the 

death of Arturo Beltran-Leyva in December 2009, Mexican authorities killed Beltnin-Leyva, the 

leader of the Beltran-Leyva DTO, effectively crippling his family'S DTO,71 The resulting 

decreased competition in Sonora between the Sinaloa DTO and the Beltran-Leyva DTO may 

have contributed to the shift in Operation Fast and Furious weapons transported 10 Juarez, The 

map below, created by the Drug Enforcement Administration (DEA), rel1ects the areas ofDTO 

influence in Mexico: n 

64 See "Operation The Fast and The Furiou::;" Presen.tation, March 5, 2010. 6~ Id. 

6(; E-n:.aii from [ATF Officinl] to David Voth, February 24, 2010 (HOGR ATF - 002301). 

67 E-mail [rom Jose Wall to Hope ME'!cAliister, December 11.2009 (HOGR ATF -002024). 

6~ This recovery is not listed in the chart b Section IV since it occurred in the United States. 

69 See "Operation the Fast and the Furious" Presentation, M:rrch 5, 2010. 

?~ See Alicia A Caldwell & Mark S~venson, SIY/aIoa Drug Cartel Wins TwiWar hi Juarez, AP, April 9, 2010 

avaifahle at http://ww-w.azcentral,(':om/news/articicsJ2010/04/09120 1 00409car!el-wins-mrf- wz.r-juarez~mexico09-

ON.him1 (highlightmg statements mude by FBI officials lh<1t the Sinalol:1 DTO gained control over trafficking routes 

through Ciudfld Juar~z). 

71 Rutn Maclean, Mexico's Drug 'Boss afBosses' Shot Dead i'1. Raid on Luxwy Hideout, December 18,2009, 

available at http://wwV',',timesonline.co.ukitol/ne'Ns/world/U5 and america.'J/articie69b0040.cce (sumr:narizing the 

bloody feud between th~ Bel~rrin·Leyva brothers f'.nd JoaqujnGuz~an, the herld oflhe SinalQa DTO). 

18 
329 


74504D2-19.eps

AREAS OF CARTEL INFlUENCES IN MEXICO 

E. Tuesday Briefi119S al ATF Headquarters 

lbcs. wClIpons recoverie. did not ceellr in. vacuum. Upon leaming ofLh" r<:coverios, 

lnI1l"'tJ in ATF·, Omee OrSlnleg;e ln fcmnation .nd Imelligencc (OSJ1);n W .. hingtun. D.t:. 

, ttempted 10 piece logether fragmentS ofinform.otion 10 ...-port up the e,,",n of com.nand. 

Aa;ording to A Tf personnel, every T....".u.y morning OSll holds • briefins for !he (,,,Id 

opcn>l''''''' IIiITto s ...... and wswss i"fonnIlioo.bout on&')ing ATF I;UQ.II Typically, the fOW" 

[)CPUly Assistlllt D"cc:IOfl for Field Opt-noIIORl.llend. Addili"""Uy, Marl< Chai~ the ASliSIaJII 

Direclor for F"",ld ()pcnui""", often 11Im<is. CItt .. ,onally, lkpuly Director William Hoov.., and 

Aoting Di~lor Ken""l" MciSOtIlllend Ill"" briefings. 

OSII first briefed on OperMion F.,land 1'llnOIlI on Tuesday lkc..,nl:H:r 8, 2009, 

incl\>dinlC Ill. Noc:o recovery. The following week, OSU briefed 'he .~;cali TC<:O'~ry. 

Subsequenl brief'ng' covered oIhcr rceo,·niH Illal had otCurred in Ille Unitod Slalo,. The: 

magnitude Ofllle Opetltion Fasl and Furious investigation quickly btc.me I pparen' to senior 

A TV officills. 

" I ......... ,.. ....... L.cwt<o> ~._. 1 ... 1 ........ o,.r..-..... 1ysI, .. W .. h .• D.C.. 10,1, ,. 20tl 

" 
330 


74504D2-20.eps

F. January 5, 2010 Briefing 

Assistant Director Mark Chait, Deputy Assistant Director Bill McMahon, International 

Affairs Chief Dan;el Kumor, Southwest Border Czar Ray Rowley, and Assistant Director James 

McDemlOnd all attended the January 5, 2010, field-ops briefing led by Intelligence Operations 

Specialist Lorron Leadmon. 74 At this briefing, the participants expressed COllcerns about 

Operation Fast and Furious. Though the briefing included the nonnal updates of weapons 

seizures linked to Operation Fast and Furious provided every Tuesday, the January 5, 2010, 

briefing abo included a key addition. 

OSH had compiled a summary of all of the weapons that could be linked to known straw 

purchasers under Operation Fast and Furious to date and presented this information to the group, 

The total number of guns purchased in just two months was 685. 7S 

Steve Martin, an A TF Deputy Assistant Director for OSII, took extensive notes during 

the briefing. Examining the locations where the weapons ended up in Mexico, he outlined 

potential investigative steps that could be taken to address the problem.'6 Due to the sheer 

volume ofweapolls that had already moved south to Mexico, he had a hunch that guns were 

being walked: 

A. So I made - they were talking about - I had [SP I J in there, I had 

[SP 2] who were major purchasers. And I bad numbers by them 

about how many guns they had purchased from the PowerPoint. I 

had a little picture drawn, with Phoenix at the top and then guns 

going two ways, one down to Naco and then over to Moxieali. 

Q. Uhhl1h. 

A, And that was because we said. , , it's the same distanc.e to go from 

Phoenix to these two places. So they don't all have to go to here to 

arm the Sinaloa Cmiel; they can go over to Mexica~i and bring 

them that way-same distance. So that's one thing I wrote as ] was 

being briefed. 

1 also wrote down guns, I think, guns walking into Mexico. 

Because that's just, kind of, what's going through my head. 

And I had, if yes into Mexico, then some things to do; if no into 

Mexico, things to do. Tnen I put a list of a whole list of stuff that 

you could do investigative wise: interview straw purchasers, put 

74 Transcribed Interview of Steve Martin, Transcript at 40, July 6, 2011 (on file with auther) [hereinafter Martin 

Tnmscript]. 

7~ Id. at 43. 

70 Notes from Slcve Martin, ATF Deputy Assistant Director for OSH, Jllnuary 5, 2010 (HOGR ATF - 001552-53) 

(produced i'1 camera by the DepElrtlfle~lt of Justice), 

20 
331 


74504D2-21.eps

trackers on the guns, put pole cams up, mobile surveillance, .erial 

surveillance, a number of stuff. 7J 

Hoping to draw from his experience as a former Assistant Special Agent in Charge (ASAC) and 

Special Agent in Charge (SAC), Martin wanted to offer suggestions on a plan for the casespecifically, how to track weapons, conduct surveillance, and eventually bring Operation Fast 

and Furious to a close. Those in field operations the chain of command responsible for 

overseeing and implementing Operation Fast and Furious - responded to his suggestions with 

complete silence. ATF personnel within field operations felt free to ignore OSH's suggestions 

and complaints beellnge OSH's role was to support tIeld operations: 

A. From my notes, I asked Mr, Ch.it and Mr. McMalion, I said, 

what's your plan? I said, wliat's your plan'! And I said, hoaring 

none, and I don't know if they had one, 1 said ... there are some 

things that we can do. Ray Rowley, who was the southwest border 

czar at t1C time, asked, how long are you going to let this go Oil'! 

Q. This is in January 201O? 

A. January 5th, that meeting, that's correct. Ray has since retired. So 

I said, well, here are some things that ... we might think of doing. 

And we had talked about this before, we'd brainstonned stuff, too, 

with Lorren. Lonen even talked about it. Kevin talked aboUl it. 

Kevin O'Keefe had done a lot of trafficking investigatiuns in south 

Florida - aboUl identifying some weak sWaw purchasers, let's see 

who the weak links are, maybe the super young ones, the super old 

ones. Pole cameras < • • put them up to sec who is coming and 

going, to help you with surveillance. 

The aerial surveillance, the mobile surveillance, trackers. I said. 

one of the Ilrst things I would do is think about putting trackers, 

to help me keep track of where they're going. 

And T said, as far as going into Mexico, I sa.id, have we thought 

about putting trackers on them and let them - - follow them into 

:Mexico? Dan Kumor said~ the Ambassador would never go for 

that. I said, okDy, fine. I said, I'm not going to pursue that 

anymore, assuming that 

Had we thought about putting trackers on them and following them 

down to see where theylrc going across) to see where tJley go, who 

they're in contact with, and where they cross the border, we might 

fint! out something llew and then ... interdict. And I got no 

response. And I wasn't asking for one. I was just ... throwing this 

stuffouL 

77 Martin Transcript, al 39-41. 

21 
332 


74504D2-22.eps

Q. You said this to who again, Mr. Chait? 

A. Mr. Chait, Mr. McMahon, Mr. Kumor. My boss was there, Jim 

MeDermond, who agreed with me because we talked probably 

daily. 

Q. Did any of Ihos. folks step up at that time and say, "Oh, no, 

nOt no. We've got another great plan in place"? 

A. No. No. 

Q. They were silent? 

A. Yes. And I don'l know ifthey had one. I mean, they could have. 

I don't know. 

Q. Do you remember if they were nodding their head, giving you any 

nonverbal cues that ... tbis sounds like • bright idea that 

you're suggesting? 

A. Not that I recall, no. 

Q. Or was it just like a blank look on their face? 

A. Just listening. 73 

Whether Mr. Chait or Mr. McMahon had a plan for Operation Fast and Furious is unclear. What 

is clear is that they did not take kindly to suggestions from OSH about the operation. They were 

not inclined to discuss the operation at ali, choosing instead to excuse themse1ves from the 

conversation: 

A. Somewhere during the meeting, Mr. Chait said that he had to go to 

another meeting, and he left. Mr. McMahon said that he had to go 

check some E-mails in a classified system, and he left. And then it 

was just the rest of us talking. 

Q. Do you fecI that the other meeting, checking the E-mails on a 

classified system, was that an indication to you that they just didn't 

want to talk about this topic? 

A. You know, I'm not going to go into their brain on that one. 

Q. 

if, Jd at 43-45. 

Okay. Well 

perception? 

sitting in a room with them, was that your 

22 
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74504D2-23.eps

A Well, I would like - it would have been nice to have some 

intera(~tion. 

Q. So it was a one-way conversation of suggestions from you, from 

Mr. McDennond, to how to effectively limit--

A. Pretty much from me and the others to the field onicer •. " 

G. March 5, 2010 Briefing 

FINDING: At a March 5, 2010 briefing, ATF intelligence analysl. told ATF and DOJ 

leadersliip tbat the number of firearms bought by known straw purchasers 

had exceeded the 1,000 mark. The briefing olso made clear these weapons 

were ending up in Mexico. 

Two months after the January 5, 2010 briefing, ATF headquarters hosted a larger, more 

detailed brieting on Operation Fast and Furious. Not part of the normal Tuesday field ops 

briefings, this special briefing only covered Operation Fast and Furious. David V~rb, the 

Phoenix Group VII Supervisor who oversaw Operation Fast and Furious, traveled from Phoenix 

to give the presentation. On videoconlhence were the four southwest border ATF SACs: Bill 

Newell in Phoenix, Robert Champion in Dallas, J. Dewey Webb in Houston, and John Torres ill 

Los Angeles. 

In addition to the usual attendees oftbe Tuesday morning field ops briefings (the Deputy 

Assistant Directors for Field Operetions, including Bill McMahon, and Mark Chait, Assistant 

Director for Field Operations), Deputy Director William Hoover also attended. Joe Cooley, a 

trial attorney from the gang unit at Main Justice, also joined. After a suggestion from Acting 

ATF Director Ken Melson in December 2009, Assistant Attomey General Lanny Breuer 

personally assigned Cooley as a DO} representative for Operation Fast and Furious. Kevin 

Carwile, chief of the Capital Case Unit at Main Justice, may bave also been ,Present. According 

to Steve I\1artin, the inclusion of Main Justice representatives waR wlUsual.8\1 

An extremely detailed synopsis of the current details ofth. investigation ensued, 

including the number of guns purchased, specific details of all Operation fast and Furious 

weapons seizures to date, money spent by straw purchasers, and organizational charts of the 

straw purchasers and their relationship not only to each otber, but also to members of the Sinaloa 

DTO. At that point, there had been 15 related weapons seizures over a four to five month 

period,S] 

79 Tel. at 45-46. 

80 Jd, al91 ("[Joe Cooley and Kevin Carwile] never sat i!l any of my briefings that I can re.calL"). 

~1 Id. at 97. See generally "Operation Fast and the Furious" Presentation, March 5, 2010. 

23 
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74504D2-24.eps

Firearms Purchased as of February 27, 2010 

The next set of slides at lhe -oriefing detailed the fifteen recoveries of weapons that had 

already taken place during Operation Fast and Furio~s. Following a map indicating the locations 

in hath the Uniled States and Mexico oftha.c focoveries were detailed slides for each recovery, 

including the number of gllas recovered, the purchaser, the transporter, and the intended recipient 

in the Sinaloa cartel. 

25 
335 


74504D2-25.eps

Two of the first slides in the March 5,2010 presentation detailed the numb,"' of weapons 

bought as of February 27, 2010 -1,026 - and the amount of money spent, in cash, to purchase 

these weapons - nearly $650,000;" 

Total Firearms Purchased as of February 27, 2010 

S?: See "Operation lhe Fast ~nd the Furioi.ls" Pl'csenlnliol1, March 5, 2010, 

24 
336 


74504D2-26.eps

For example, the slide pertaining to the Mexicali seizure indicated that the 12 detained 

suspects were all from Sinaloa, Mexico, "Confirmed Sinaloa cartel."" The slide also catalogs 

the full recovery: "4 i AK-47s, J AR-15 rifle, 1 FN 5.7 pistol, 421 kilogj'ams of cocaine, 60 

kilograms of meth, 392 miscelhuIeous rounds of amtmmition, $2 million U.S .. and $1 million 

Moxieatl pesos."" In addition, the slide graphically depicts the relationships between the straw 

purchasers and the weapons seized. And finally, the slide on the EI Paso recovery links 

Operation Fast and Furious to a Texas investigation and to the "plaza boss" in the Sinaloa cartel 

that Fast and Furious ultimately targeted." 

Given the rich detail in the presentation, it is clear that the guns bought during Operation 

Fast and Furious were headed to the Sinaloa cmiei. As Martin testified: 

Q. The guns are up to 1,026 at this point? 

A. That's correct. 

Q. I know you had expressed some complaints earlier when it was 

only at 685. So there's no doubt after this briefing that the guns 

in this case were being linked with Ihe Sinaloa cartel, based on 

the -

A. Based on the information presented, I'd say yes. 

Q. And that was presumably very apparent to everyhody in the 

room? 

A. Based on this one, it says the people arc connected with the 

Sinaloa cartel, I would say that's correct'6 

The volume of guns purchased and the ShOl1 time-to-crime tor many ofthese guns clearly 

signaled that the Sinaloa cartel received the guns shortly after their purchase in Arizona. If ATF 

had attempted to interdict the weapons, it is likely that hundreds of these weapons would no! 

have ended up with this dangerous cartel or entered Mexico. 87 Martin agreed that was clear: 

Q. But whether the guns were walking, whether they were flying, 

whether they just disappeared, based on all the evidence that 

you've collected to this poim, it wa. pretty clear that Ille guns 

were going almos! linearly from the FFLs 10 the DTOs? 

A. They were headed tllat way," 

Tmnscript, at 100. 

For a complete discussion offhc sllOrtccmings of ATF's inveE!ligation, see generally The Department of Justice's 

Operation Past and Furious: Accounfs of AT}? Agents, Joint StaffRepor.:, 112!h Congress, June 14,2011. 

88 Martin Transcript, ilt 50. 

26 
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74504D2-27.eps

Several individuals, such as Ray Rowley and those in OSI!, had already expressed their 

concerns, only to have t'Jem fall on deaf ears. Others, however, remained silent, despite the 

ominous consequences: 

Q. Was there any concern ever expressed about the guns being. 

essentially just bee lined right to the dnlg trafficking organizations 

about what the DTOs might actually do with the gullS? 

A. I think it was common knowledge that they were going down 

there to b. crime guns to use in the battle against the DTOs to 

shoot each otber. 

Q. So these guns, in a way, are murder weapons? 

A. Potentially." 

The only person that did speak up during the March 5, 2010 presentation was Robert Champion, 

SAC for the Dallas Field Division participating by videoconfcrence, who asked "What are we 

doing about this?"" According to Lorren l.eadmon, in response, Joe Cooley from Main Justice 

simply said that the movement of so many guns to Mexico was "an .ceeptalile proctice.,,9\ 

Shortly after the March 5, 2010 presentation on Operation Fast and Furious, OSII stopped 

giving bnefings on the program to ATF management during the weekly Tuesday meetings. OSII 

personnel felt that nobody in field operations heeded their warnings, and OSll no longer saw the 

point of continuing to brief the program. 

V. in the Dark 

FINDING: A'fF and DOJ I •• del'ship kept their own personnel in Mexico and Mexkan 

government officials totally ill the dark about .11 .spects of Fast and 

Furious. Meanwhile, ATF official. in Mexico grew increasingly worried 

about the number of weapons recovered in Mexico that traced back to an 

ongoing investigation out of KfF's Phoenix Field Division. 

Not surprisingly, ATF officials in Mexic~) grew increasingly alarmed about the growing 

number of weapons showing up in Mexico that traced back to the Phoenix Field Division. Yet, 

when they raised those concerns, ATF senior leadership both in Phoenix and Washington, D.C. 

reassured them that the Phoenix invesligation was under control. No one informed them about 

89 1d. at 103-104. 

\10 Interview with Lorre.n Leadmon, Intelligence Operations Specialist, in Wash., D.C., July 5, 201 L 

91 !d. 

27 
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74504D2-28.eps

the details of Operation Fast and Furious. No one infonned them that ATF was knowingly 

allowing guns to be sold to straw buyers and then transferred into Mexico. 

A. Volume a/Weapons Raises Eyebrows in Mexico 

A TF leadership in Mexico started noticing an "abnormal" number of weapons flowing 

from Phoenix into Mexico as early as the end 0[2009. Fonner ATF Attache Darren Gil 

explained: 

Q. Now, at some point you mentioned that in late 2009, curly 2010, 

your analysts made you aware of an increase in the number of 

recoveries. fireann recoveries being traced back to Phoenix; is that 

right? 

A. Correct. 

Q. And I think the word yon used was abnormal. Can you explain for 

us what exactly -- what was normal? 

A. Normal was - there's, I wallt to say there's at least 1,000 FFLs 

along the border. And. . some people usc the trail of ants 

tenninology, some people use the river of iron terminology, but 

generally you'll get a handful of traces to this FFL, handful of 

traces to this FFL, Federal Firearms Licensee, all aiong the border. 

••• 

I asked my analyst, because J was fairly new. I said, why is this 

abnonnal. He says, look, Darren, we have all these truce results 

and they come from a variety of FFLs, but then you have a high 

correlation here with thlS one particular investigation coming out 

of Phoenix where we're getting this way and above the number of 

recoveries we get from all these other Federal Fireanm Licensees. 

So it stuck out to my analyst who presented that to me that it was 

an abnonnal, his tenninology actually, abnormal numher of 

recoveries. ':12 

The "abnormal number of recoveries" concerned Gil and his agcnts in Mexico. Gil sought 

answers: 

Q. And when your analyst made you aware of this uptick, what was 

the next step that you took? 

n Gil Transcript, at 61-62. 

28 
339 


74504D2-29.eps

A Pretty much a review, show me what you're talking about, which 

he did, And then the phone call to Phoenix, And then after the 

phone call to Phoenix, which J spoke of, throughout the res! of the 

time it was primarily dealing with A TF headquarters, primarily 

with the ehiefofintcffiational affairs, Dan [Kumor]," 

B. Reassurances from Phoenix and Washineton, D.C. 

Attache Gil initially reached out directly to the Phoenix Field Division to express his 

conCCTI1S about the growJng number of weapons. Gil explained: 

Q, So when your staff in Mexico determined that a p.,'icular weapon 

was tracked back to Phoenix, did they try or did you try to make 

comact with some of the ATf staff in the Phoenix field office? 

A. I did, I called the division, tried to make contact with the SAC. 

don'! believe I spoke with the S !'I.C, but I got a retumed call and 

spoke with the ASAC there, George [Gillett]. I identified my 

COnCelllS, hey, we1re getting an abnormal number of traces .. From 

what 1 recall his response was, yes, welre aware of it. We have an 

ongoing investigation. We have a ton of resources on it, \Ve'rc 

looking at it. We're working at it, and thanks for calling ."d 

making us aware and then we 111 follow it up from there. 94 

Yet the seizures continued unabated, and the answers Gil received failed to better explain the 

underlying cause. Gil continued: 

Q, So your discussions with Mr. [Gillett] in early January, is it fair to 

'"Y you weren't satisfied with the results of that call? 

A. I was ,atisGed with the first response, sure, They're working a 

case, they're trying to identify what the problem is, how these 

weapons ore getting there, they're aware of it That's a nomlal 

respollse, okay, good, we're on the job. 

91 ld. at 63. 

94 Jd at 15~ 16. 

95 1d. at 17, 

Bnt unfortunately, my chief analyst and my deputy would 

come back and say, Darren) these are - we1re getting more and 

more and more cfthese seizures. And I would make inquiries with 

the Phoenix field division and 1 wasn't getting any responses back, 

And I may have gotten tWO more phone calls, yeah, we're working 

on it, we're working on it. 95 

29 
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74504D2-30.eps

Despite these reassurances, the volume of weapons flowing tram Phoenix into Mexico continued 

to grow. Further, no one at A TF provided GilOJ' hIs staff any explanation as to why the volume 

continued to grow. When Gil and his staff tried to access the trace data on their E-Trace system 

to find out for themselves, they learned they did not have access. As Gil explained: 

And at that point, with the number of seizures we were receiving in 

Mexico, that wasn't - that connected to the fact that my analyst didn't have 

access to the trace data in F-Trace: where we entered the data, nonnaHy 

we ... would get that infonnation back regarding the trace. 

Unfortunately, my ... deputy advised me that we were entering the data 

but we weren't getting the trace results back, all we were gelling was 

"trace infommtion delayed". And what that generally means is, there's 

been a hold placed on it by either the tracing center or by a field division 

because they didn't want that inf(llmation released for some particular 

reason,96 

Members of Phoenix Field Division Group VlI, induding its case agent with support from the 

Group supervisor, actively shut out their colleagues in Mexico. As a result, Attache Gil decided 

to seek answers from senior leadership in Washington, D.C.: "Ultimately I made phone calls to 

the chief of international affairs, Dan [Kumor], to try and get responses because I wasn't getting 

responses from Phoenix like 1 thought I should."" In early 2010, Attache Gil shared his 

concerns with Kumor about the increasing number of gun recoveries in Mexico linked to 

Phoenix: 

Q. At some point I understand you had some conversations with your 

boss back in Washington, Mr. [Kumor]. Was he the first person in 

Washington that you spoke to about the abnoffiml number of 

weapons that you were recovering? 

A. Yes. 

Q. And do you remember when the tirst time you raised this issue 

with Mr. [Kumor] was? 

A. Again, il would be early 2010, probably around - probably 

January, about the same time. 

We talked almost certainly weekly and almost daily basis, so he 

would have been notified at that time. 

Q And do you remember what his reaction was when yon first raised 

the iSRue with him? 

a: 17-18. 

ld £It 17. 

30 
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74504D2-31.eps

A. Certainly, yeah, okay, let me check on it, it's an ongoing 

investigation, let me make some inquiries and I'll get back with 

you, 

Q, And did he ever get back with you? 

A, Yes, 

Q, And what did he say? 

A. Again, he said an on-going investigation, they're looking at straw 

purchasers, they have cooperative Federal Firearms Licensees and 

it sounds like a significant investigation, And, . he didn't have 

access to the traoe information either but , the Phoenix field 

division is aware of the investigation, The chain up to him is 

aware of1he investigation, so everybody is aware of it and it looks 

like they have it under control, 98 

Gil fotmd it insufficient to hear the investigation was "under controL" In the meantime, guns 

from a known straw purchasing ring continued io flow into Mexico from Arizona, Although Gil 

and his agents in Mexico remained in the dark about the tactics and strategy of Operation Fas! 

and Furious, they realized something was wrong, Gil continued to express his concerns: 

Q, And did you ever raise any issues wilh ML [Kumor] that while 

they, , , may think they have it under eontrol, it may not be under 

control because we are recovering an abnormal number of 

fiream1s'? 

A. Again, spring time it got to the point of at what point UTe we going 

to ", to dose this investigation down? I mean, after 500 or so 

seizures I think you should have had enough data collection on 

what you're trying to show or prove, It was my position, it was 

Chief [Kumor's] position as welL Be says, yeah, you're right And 

he goes, so when are they going to close this down, And we were 

both on the same position there that this thing needed to be shut 

down, 

So there was a number of ongoing - you saw my CBS interview, 

screaming matches , it was a very frustrated ,- high frustr~;ion 

leveL And that was one of the reasons for, , , being frustrated, 

Understandably, Gil was frustrated, Hundreds of weapons appeared suddenly in Mexico - traced 

to Phoenix - without explanation. Gil and his agents struggled to get answers from their own 

agenC)', Although ATF officials in Phoenix and Washington, D,C, acknowledged that an 

98 I d. at 20-21, 

99 Td. [It 2L 

31 
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74504D2-32.eps

investigation was underway, they refused to share the details o[(he strategy and operation with 

the agents in Mexico, Gil took their silence as suggesting that his colleagues did not trust him to 

keep the information confidential: 

Q, Did you have any idea why you weren't being made aware of the 

specific details of this investigation? 

A, I can tell you what I was told and they were afraid that I was going 

to either brief the ambassador on it or brief the Government of 

Mexico officials on it 

Q. And it was your understanding that individuals within A TF higher 

than Chief [KumorJ didn't want the ambassador to know about the 

investigations? 

A. I couldn't say that ... specifically they didn't want the ambassador 

to know. I know I asked, , , why can't I be briefed on this. Well, 

they're afraid that you would brief the GOM omcials, Government 

of Mexico officials or , . , brief the ambassador. They were .iust 

worried about somebody leaking wh.tever was unique about 

this investigation,loo 

VI. More Complaints and More ~eassurance~ .. ~ ____ _ 

ATF officials in Mexico constantly worried about the number of guns flowing from 

Phoenix to Mexico in connection with the Phoenix Field Division's investigation, Mexican 

authorizes continued to seize guns at violent crime :qcene~ involving Mexican DTOs. Without 

being plivy to the particular tactics utilized by Operation Fast and Furious, ATF's representatives 

in 1\1exico suspected something was terribly amiss. Because initial contacts with Phoenix 

provided few answers, A TF officials in Mexlco continued to report their concerns up the chain of 

command to ATF leadership in Washington, D,C, Instead of acting on their complaints, senior 

leadership at both A TF and the Department of Justice praised the investigation. However, ATF 

agents in Ylexico kept sounding the alarm, In July 2010, Gil and his agents received notification 

that the Phoenix Field Division's investigation would be ending and shut downw1 In reality, 

ATF agents in Phoenix closed the investigative stage of Operation Fast and Furious in January 

2011, only after the tragic death of Border Patrol Agent Brian Terry in December 2010, 

00 Jd. at 72. 

01 See Se.ction VLE infra page ~4 (surnr.1arizing the Cxch,ilflge between Gil and KUmor rcr,ard:ng the timeline to 

~bn~down O?eration Fast and Funous). 

32 
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74504D2-33.eps

A. Concems Raised up the Chain o!Command 

FINDING: ATF officials in Mexico raised their concern. about the number ol'weapons 

recovered up th_ chain of command 10 ATF leadership ill Washington, D.C. 

Illstead of acting decisively to end Fast and Furious, the senior leadership ot 

both ATF and DOJ praised the investigation and the positive results it had 

produred, j<'rus!rations reached a boiling point, leading former ATF Attache 

Darren Gil !o engage in screaming matches with his supervisor, International 

Affairs Chief Danie! Kumor, ahout the need to shut down the Phoenix-based 

investigation. 

Withom knowing of possihle gunwalking tactics used in Operation Fas! and Furious, Gil 

and other ATF officials in Mexico knew the investigation needed to be shut down based on the 

empirical data. As Gil testified: 

Q, And the number of fireanns recovered in Mexico, you said it was 

about 500 in the spring, did that number continue to rise? 

A, Yes, it did, I want to say by the time I left I think it was up to, 

which was in October, I think it was up to ~ the last data I think I 

was quoted was like 700 or so, 

Q, And that continued to alaan you? 

A, It was a topic of discussion every time ~ pretty much every time 

we spoke about when this thing was going to be shut down, And 

the general - the origin of it was, again, because it worried my 

folks. My chief analyst, who would see the data every day, He'd 

put in the trace results, he'd get infonnation hack, data -- "trace 

results not available", whieh means AT!' put a hold on it 

somewhere. 

So number one) we were submitting our information and we 

weren't getting our own trace data back, so that was an issue. The 

number was an issue, The facl that these guns were found in crime 

scenes, which we could not notify the GOM, the Government of 

Ivlexico, was an issue. 

The fact that this brought pressure on us trom the GOM because 

they're saying, wby arc we using ~ we're spending ~ ATF is 

spending extraordinary nmnber of resources to traill them on the 

Spanish E-Trace, And in the same breath they're saying, look, 

we're not getting anything back so why should we use this Spanish 

E-Trace, it's a waste of our time. And we have to say, no, it gives 

you this, this, and this, And they go, yeah, but we're not getting 

anything back, 

33 
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74504D2-34.eps

So it became" big evellt that we're not getting this trace data back 

and it frustrated my folks, they in turn notified me. And we had 

meetings on it and then I'd make my calls to headquarters, again, 

primarily Chief [Kumar], and voiced our concerns. And it got to 

the point I would have my staff, on conference calls that wc have, 

speak with Chief [Kumor] trying to - what the heck is going on 

herc,I02 

Gil and his staff struggled to deal with this growing crisis. Despite the increasing number of guns 

from Phoenix showing up at violent crime scenes in Mexico, A TF agents in Phoenix continually 

denied the ATF agents in Mexico the relevant information explaining this spike. Gil was so 

passionate abont his and his stairs concerns that h" had yelling matches with his boss: 

Q. Who were those screaming matches with? 

A. Primarily with Chief [Kumor]. And it wasn't just on this, all right, 

keep that in mind. . .. However, this was aiso part of it. and at 

some point screaming, yelling ... hey, when are they going to shut 

this, to put it bluntly, damn investigation down, we're getting hurt 

down here. 

When, again, Ilhink I mentioned in my CBS interview, when the 

Mexicans find out about this. And this was not even knowing of 

the potentia! for gun walking, This was just , .. not shutting 

this investigation down and letting another 300 weapons come 

into the country afler the lirst 300 weapon •. Because, again, it's 

inconceivable to me to even allow weapons to knowingly cross a..."'1 

international border.] 03 

... Q. So it was dear to you that this ongoing case based out of Phoenix 

was proceeding, they weren't shutting it down, you disagreed with 

that because you saw too many weapons showing up in Mexico? 

A. That's a fair assessment. j:)4 

Depnty Attache Canino shared Gil's concerns about the number of guns entering Mexico and 

that something needed to be done: 

Q. What discussions did you have about the weapons from the 

Phoenix case in Mexico with Mr. Gil, Mr. Darren Gil? 

102 Gil Transcript, at 30-32, 

1'13 Jd. at 66-67. 

1(14 Id. at 24. 

34 
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74504D2-35.eps

A. We were very concerned ... with that amount of guns and short 

period of time on a suspect gun data and they kept climbing. 

'" * • 

I said, Darren, this is a problem ... these many guns coming down 

here is a problem. We made that known to Danny Kumar ... 

Danny was in agreement he pushed it up the chain and we were 

told yeah it is a case out of Phoenix and it is going great 10;, 

Gil and Canino prevailed upon their direct supervisor, Daniel Kumar, ATF's Chief of 

International Affairs, to take their concerns about Ihe volume of weapons in Mexico up the chain 

of command: 

Q. When you say pushod it up the chain, what do you mean exactly? 

A. He told his superior. 

Q. That would have been who? 

A. That would have been deputy assistant director Dill McMahon. I06 

Gil also testified that Kumor spoke to his superior, Deputy Assistant Director McMahon, about 

this mutter: 

Q. And do you know if [Kumor] had any conversations with Mr. 

[McMahonl, did he ever relate to you that he's had these 

conversations with Mr. [McMahonl? 

A. Sure. He would say, I'll - I'm going to go meet with. Bill 

[McMahon], the deputy assistant director. And he would - and 

then in our conversations he would respond and, hey, I've spoken 

with Bill and he's going to send notification out or cOlltact Phoenix 

and see what's going on, aure. 10? 

Gil also discussed his concerns with McMahon during trips to Washington: 

Q, Did you take any tnps to Washington during this time period ofA. Sure. 

Q. - January 2010 to before you left October 20107 

105 Canino Transcript, at 16. 

at 16-17. 

Gil Transcript, ·'it 22-23, 

35 
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74504D2-36.eps

A Yes, 

••• 

Q. You said, might have discussed it with Mr. [McMahon]. If you 

did, it wasn't something that you remember in detail" 

A. Yeah, would have been, hey .... is this thing still going on, and 

when is it going to be shut down. And something to the effect 

they're either working on it - again, their general response was 

they're working on it, they're going to close it down as soon as 

they e.an, and we'll let you know. lOS 

While Phoenix was "working on it," guns continued to flow unabated into Mexico. Gil, Canino, 

and other ATF agents in Mexico raised legitimate concerns, hut leadership told them (0 stand 

down. According to ATF leadership, not only wa, everything "under control," but everyone in 

ATF C!TIcl DO] were well aware ofthe investigation in Phoenix: 

Q. And at any point during those conversations was it made clear to 

you that the director is aware of til is program? 

A. Yes. At one point, I mean, again, probably during one of the final 

screaming matches was ... I think I threw the question out there, 

hey, is DO.! aware of this investigation? Are they aware ofwh.\'s 

going Ol1~ and are they approving this, 

And then the chiefs response was, yes, not only is ... the director 

aware of it, Billy, William Hoover is aware of it, DOJ is aware of 

it. And then ... through (hat fact - (hey have a Title 3, so DOl 

must be aware of it certainly for that aspect. And c.ertainly lhe US 

Attorney's office in Phoenix is aware of it because they had to 

approve the investigation. 

But - so it wasn'tjnst is the direct link aware of it ... ifthe acting 

director is aware you assume everybody is aware of it. And then, 

okay, they don't want me to know something for some reason 

that's fine, they have their reasons and ... you got to defer to your 

executive staff. 109 

Senior leadership in Phoenix and Washington, D.C. continued to provide reassurances without 

answers during their visits to Mexico. Canino recalled several visits by boih Mark Chait and Bill 

McMahon: 

36-38, 

at 24-25. 

36 
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74504D2-37.eps

Q, Did senior officials from DOJ and ATF visit Mexico with regard to 

this case? 

A This case specifically? 

Q, Did they make any visits to Mexico? 

A. Sure, yeah. Mmh hmm. 

Q. Would this case have been one of the things that got discussed 

during their visits? 

A. We talked about it, but we said ... hey what is going on with this 

case om of Phoenix, we are starting to see a lot of guns in the 

suspect gun database, kind of alanning, so many guns. They said 

hey. , , we've got it handled, we are working, it is a good case out 

of Phoenix, 

Q. Who would those officials have been'? 

A. Well, the director had come down, the deputy director had come 

down, the deputy associate director had come down. 

Q. Who is lhat? 

A. l3ill 'vIcMahon. This assistant director for field operations, that is 

the guy who is in charge of all agents. 

Q. Mark Chait? 

A. Mark Chait came down. Bill Newell came down. So, yeah these 

guys have come down. 

Q. Multiple visits? 

A. Yeah. Some of them, multi visits and they talked, hey, yeah, we 

got a big case out of Phoenix, 110 

As Gil later stated, "[all that point ... you just got to say, fine, these guys, they're the leaders of 

this agency and they have some plan that I'm not aware of, but hopefully they have a good 

one,"~ 11 

lH) Canino Transcript, at 19-20, 

II' Gil Transcript. at 69. 

37 
348 


74504D2-38.eps

B. A "Good investigation" 

The Phoenix Field Division and ATF headquarters extolled the virtues oflhe 

investigation to ATF personnel in Mexico. For example, during Acting ATF Director Kenneth 

Melson's 2010 spring visit, Gil's staff asked about the Phoenix case. Gil detailed Acting 

Director Melson's response: 

Q. And do you recall what Mr. Melson said? 

A. Generally his response was, he's aware of it, it's an ongoing 

investigation, it's providing some good intelligence .. [A]11 

positive as far as the investigation, it looks good. And I remember, 

I think Deputy Director Hoover was there. I think he limed to the 

c1eputy director and said, yeah, we'll cheek on it when we get back 

but I tbink it's providing some good results and we'll check on 

when it's going to be ciosed down, but my understanding it should 

be closed down fairly soon.' " 

Canino confirmed Gil's recollection: 

Q. And when any of the ATF officials camc to Mexico, whether it is 

Melson or Hoover, do you recall briefing them? Or maybe 

briefing is the ""Tong word. 

A. Mentioning it? Snre. 

Q. Do you remember mentioning that there's a lot of fireanns being 

tracked back to Phoenix? 

A. Mmh-hmm. 

Q. Do you remember what their response was? 

A. It was like, yeah ... we got a case. We got a good case going on 

in Phoenix. 

*" * >I< 

Q. Senior people in headquarters were aware of the case and they 

were not as almmed? 

A. Right. 

lt2 Jd at40, 

38 
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74504D2-39.eps

Q. They thought it was under control, or they thought it was a great 

case, about to come to fruition? 

A. Conect.i1J 

C. Lanny Breuer and the Department of Justice 

Gil and Canino received the same message of support for Operation Fast and Furious 

from the Department of Justice. During a visit to Mexico, Lanny Breuer, lhe Assistant Attorney 

General for the Criminal Division demonstrated his awareness of the case: 

J\1r. [Brenerl kind of summed up his take on everything at the end, and one 

of them was tbat there's an investigation that A TF is conducting that looks 

like it's going to generate some good results and it will be a good positive 

case that we can present to the Government of Mexico as efforts that the 

US Government is taking to try and interdict weapons going into Mexico. 

And thai was about that was it. That was just a general statement. 

;\/lyse If and my deputy I believe were in the room and we kind oflooked at 

each other. We're u\vare of this case:~ and so we assumed that's what he 

was mentioning. And we just wanted to make sure - we look at each other 

going. hope the ambassador [Carlos Pascual] doesn't ask any questions 

because we really don't know anything about the case. And luckily the 

ambassador did not. 114 

Canino also remembered a visit from Breuer where Breuer touted the Phoenix case: 

Q. And during meetings with Mr. Breuer, did this suhject corne up? 

A, I mean, I wa.s in a meeting, it was a country team meeting, or it 

might have been a luw enforcement team meeting "Ambassador, 

Mr. Breuer was there, Darren \vas there, 1\1"1', Breuer. the 

Ambassador was saying hey, you know what ... we need a big 

win we need some positive, some positive [firean1lS trafficking] 

cases. And Lanny Breuer says, yeah) there is a good case~ there is 

a good case out of Phoenix. And that is all he said . 

. . . Q. But do you remember the specific incident with the Ambassador 

talking about the success stories? 

1!3 Omino Tnmscripl, at 1 02~ 1 03, 

114 Gil Tnmscnpt, at 44. 

39 
350 


74504D2-40.eps

Q. And that is when Breuer mentioned this large case in Phoenix? 

A. Y cah. He said we got, there is a good case out of Phoenix. 

Q. And is it your impression that the case he was referring to is what 

now what you now know to be Fast and Furious? 

A. Yeah, when he said, I thought, oh, okay ... he knows. He knows 

about this case. 11' 

The Department of Justice, and more specifically, Assistant Attorney General Lanny Breuer, 

clearly knew about Operation Fast and Furious. Further, the Department of Justice's Office of 

Enforcement Operations (OEO) approved numerous offhe wiretap applications in this case. 

These applications were signed on behalf of Assistant Attorney General Breuer ill the spring of 

2010. Instead of stemming the flow of firearms to Mexico, Operation Fast and Furious arguably 

contributed to an increase in weapons and violence. 116 

Additionally, the United States Attorney's office in Arizona - another DOJ componentwas inextricably involved in supervising Operation Fast and Furious as the office was part of a 

prosecutor··led and OCDETF funded strike force. lll According to many agents, the U.S. 

Attorney's office's intimate day-lo-day involvement was to the detriment of ATF's Phoenix 

Field Division. Furthem10re, althoufh DOJ knew about the operation, it kept key people who 

needed this information in the dark. 18 

D. Still in the Dark 

By their own accounts, memhers ofthe senior leadership ofl1olh ATF and DO] wanted a 

big firearms trafficking case to demonstrate success in combatting Mexican cartels. Despite this 

goal, they failed to provide specifics ofth. case to both Mexicau officials and ATF personnel 

stationed in Mexico. As the chief ATF advisor in Mexico, Gil found this lapse ofinformalion 

sharing e!nbanassing. 119 

As Attache in Mexico, Gil needed to be aware of ATF operations that impacted Mexico, 

Nevertheless, his OWll agency intentionally wifhheld critical details orlhe tactics and strategy 

behind Operation Fast and Furious. Gil did not even know the name of the operation until 

January 2011 : 

Q. And generally, it would have been your job to approve operations 

that involved Mexico given your position as the attache? 

115 Canino Transcript, at 22-23. 

II~ See S;;:ction IV supra, page 8 for B det..1.iled discussion of the flow of weapons to Mexico and the increased 

violence as a result. 

117 Briefing Paper, Phoenix Field Division, 785115-10-0004 (Jan. 8, 2010), 

liS See supra Section V.B. 

IEl Gil Transcript, at 45, 

40 
351 


74504D2-41.eps

A. Correct. Any activity regarding certain ATF in Mexico should 

have come through the ATF attache's office in Mexico, and 

celtainly any investigative activity should have been brought to the 

attention oftho olliee. 

* :6: * 

A. Again. I was aware there was an investigation, but I wasn't aware 

of the particulars oflhe investigation. l2O 

According to Gil, ATF leadership withheld information from him and otber ATF agents in 

Mexico because ofa fear that they would brief the Government of Mexico on the investigation 

and would jeopardize Operatioll Fast and Furious: 

Q. Did anyone ever tell you, this is sensitive and we can't let the 

Govelnment of Mexico know about this ;::ase? 

A. Y cab, in one of my conversations - it was probably more than one, 

but certainly one that I recall, because it was so out of character, 

but .. what our impression was in Mexico was hiS a high level 

investigation. We understand the security issues of it. There's a 

Title 3 going on. So we all assume it's probably a corrupt Federal 

Fireanns Licensee or more or others, and maybe they do have a 

connection that's flowing weapons there and theylre working on it. 

'"Old. .tI11-112. 

But at some point, okay, you haven't gotten the information by this 

time . you need to shut it down just for safety and security 

reasons. So that was the assumption we had . 

. . . Well, they're worried the Mexicans are going to get - the 

Government of Mexico would get it and it would ruin their 

investigation. All right, so let us know. Well ... they're afraid 

that you'll eilher willingly or unknowingly release this in{'annalion 

to your GOM counterparts. 

Okay, ~/ell, how about letting me know as the attache. Well, 

they're afraid that you'll do ihe same. And at that point. I 

called my folks and I said, look, they say they have it under 

control, all we can do is continue our mission down here and work 

towards our objectives and hopefully this inve,tigation will hear 

fruit down the road that everybody is going to be bappy with. 

41 
352 


74504D2-42.eps

But the problem we had, and I noted in my interview, was that 

thes~ weapons are being recovered in violent crime scene5 of 

1\1exican law enforcement interacting with cartels or Mexican 

military ofticials interacting with cartels. And these guns are 

going to come back in the murder of some of these officials and 

we're going to have some explaining to do, 12j 

Ultimately, ATF leadership's withholding of information worked against its own representatives 

in Mexico. This realization was a source of major irritation and frustration for Gil: 

Q. Is it inconceivable 10 you that you were not a part of these 

discussions? 

A Again, I've repeatedly said 1 was very fmstrated dOWll there. And 

so that answer is, yes, I was very frustrated because I was not part 

of the ongoing investigation, 

Q. So when you're told about a bigger picture, when you're told about 

a more sophisticated case, you hear [Lanny Breuer] referencing an 

ATF case, which is presumably this case. . . . At any point in time 

did you say ~ why am I not read into this case'? Why am I not a 

party to these conversations? 

A. Sure. Myself, my deputy, my staff, we were all fmstrated. We 

didn't understand it We understand the concept to keep secret 

investigations, that if you leak something potentialiy that it could 

get corrupt the case or get somebody unfortunately get 

somebody hUlt or killed. We understand that, but as I said, one of 

my screaming matches was over this issue that, okay, you don't 

want us to -- okay, if you tell me I'm not going to release anything 

to the Government of Mexico then I won't release it, but let me 

know. 

When you tell me, well, we don't want to let you know because 

we're afraid you'll notify Loe ambassador or ultimately somehow 

the Government oLMexico is going to find out, yes, that irritates 

me. And YOIl can see why Ihe voice level went up and the 

vulgar language probably came Ollt on certain occasion 

because it is very, very irritating. 

Q. And you were trying to help them understand these guns are being 

recoycred at crime scenes, these guns are in the possession of 

cartels, people are dying? 

A. Correct 

42 
353 


74504D2-43.eps

Q. Is that part of your -

A. Myself, the deputy, I mean, it's like ground-hog day and - that', the 

best way to put it. Every time the event came up for whatever 

reason, maybe it was a new seizure, I was notified again, hey, 

when is lhis going 10 be shut down. And it's the same response 

that, heYl we're still working on it, Ws still ongoing, we're getting 

some good infonnation and wc:'ll shut it down as soon as we 122 can. 

E. Told Operation Fast and Furious Being Shut Down 

FINDL'I!G: Despite a.surances th.t llie program would be shut down as early .s March 

2010, it took the murder of a U.S. Border Patrol Agent in December 2010 to 

actually bring !ile program to a close, 

As the ATF officials in Mexico continued to express concerns throughout 2010, ATF 

leadership told them the investigation woul,l be shut down as soon as possible. Gil explained: 

I queried Chief [Kumar] again ... and that - and the ongoing discussion 

continued, they're aware of it, they're gOlng to close it down as soon as 

they possibly can, but there's still -.. they think the investigation is not to 

the point where they can close it yet. And the discussions went on and on. 

lt went to the point I departed Mexico. '" 

Gil left his position as Attache to Mexico in October 201 () and retired from the ATF just a few 

months later. At the time of his retirement, Operation Fast and Furious remained ongoing. 

Several months before Gil retired, Deputy Attache Canino wrote to Dan Kumor with disturbing 

statistics: 

Like I said, this is a problem. I sent an c-mail, I think it was July of 20 1 0 . 

. . letting Dan K umor know that approximately ... the count was up to 

1,900 guns in suspect gun data, 34 of which were, 34 of which were .50 

caliber rifles. And I, my opinion was that these many .50 caliber rilles in 

the hands of one of these cartels is going to change the outcome of a 

battle. Dan pushed it forward. He was told, yeah, we are taking the case 

off in August of 2010. The case doesn't get taken off until Jannary 25, 

2011. 124 

Kumor's response led Canino to believe that arrests were imminent in Operation Fast and 

Furious: 

122 !d. at 113-115. 

illld. at 78, 

124 Canino Transcript, at 17. 

43 
354 


74504D2-44.eps

Q, So anyway let's talk about Danny Kumar telling you it is going to 

be closed down, You send him in the e-mail in July? 

A, He says, hey, I talked to Bill McMahon, Bill McMahon said they 

are taking the case down in August. 

Q, What did that mean to you? What was your understanding? 

A, That they were going to shut the case down and make arrests, 

Q, Now, at that point you still didn't know that they were gun 

waiking? 

A, I never knew, I never believed it until this past ApriL Even after I 

'" talked to other guys in inteL 

Q, Just to go back to this, So when they said they are going to close 

the case down, what did you interpret that to mean? What was 

they were shutting dov.n? 

A, They were going to start making arrests, Now", through the fall, 

late fall, and I have been talking to Bill. 

Q Bill Newell? 

A. Dill Newell, and Dill told me, hey, Carlos, we are going to 

probably take this down you know we are trying to take it down, I 

think he said December or so , , , Novcmberish, This is right 

around October ,November, December we are going to take this 

down", then, the Terry murder happens,'" 

The first lllTest finally came in December 2010, immediately after Agent Terry's murder. More 

followed a few weeks later in January 2011, Prior to lhese arrests, Canino and the other ATF 

agents in Mexico continued to urge ATF leaders to shU! down Operation Fast and Furious to no 

avaiL Canino testified: 

Like I said, right around after somebody told me the figure was 1,200 guns 

, , there's a case out of Phoenix, , " They'll take it off when they take it 

off, We're concerned, I've made my concerns up the chain, , , sent 

that e-mail in July, I'm told they're going take it off in August. From 

September nothing, October, " October, November, Bill Newcli says, 

I'm going to start taking this off. , October, November. December 

comes around, Agent Terry happens, They take it off in January, end of 

Januaty,126 

125 fa. at 95. 

126 lei. at 123. 

44 
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74504D2-45.eps

Kumar testified about his convers.tion with Deputy Assistant Director William McMahon about 

shutting down Operation Fast and Furious: 

Q. But he did suggest to us in an interview we did that at least in part 

he was telling you we've got to shut that case down, we've got to 

shut that case down? 

A. Oh, yeah, we'ye had those discussions. 

Q. But that got heated as well. He was very animated about needing 

to shut this case down? 

A. And if we did which is very possible and I'd say I agree with you a 

hundred percent but it's not my call, and I've already made those 

concerns known. . to Bill [McMahon], and it's not ~ 1 don't have 

the authority to do it. And I said. matter of fact, whoever comes 

down or if you want to pick up the phone, you can tell them and 

see if you get anywhere with them. But the bottom Ii"e is that 

they're saying that the US. attorney's office is not going to 

authorize them to arrest these people. And, again, they're up on a 

wire and they're trying to put this case together. 

Q. And when you say "Bill," you mean McMahon? 

A. Yes,!27 

F. Concerns Communicated to Deputy Assistant Director McMahon 

Despite Dan Kumor's testimony to the Committees' investigators, Deputy Assistant 

Director for Fieid Operations William McMahon tried to minimize his knowledge of the 

concerns expressed by ATF agents in Mexico to their supervisors at Headquarters during his 

testimony to the Committees: 

Q. What abollt Mr. Kumar? Did he express any concerns about this 

case? 

A. Not that I remember. 

Q. Essentially you were having two direct reports ~ 

A. Eh huh. 

Q. Expressing major concerns about this case to you. 

127 Transcribed interview ofDl:lniel Kumor, Transcript at 39, July 13, 2011 (on file with author) (hereinafter Kumor 

TranscriptJ. 

45 
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74504D2-46.eps

A. I did? 

Q. Yes, Mr. Kumar and Mr. Rowley. ThaI doesn't ring a bell? 

A. No, it doesn't Them expressing concerns? 12R 

A December 17; 2009 e-mail from Bill Newell indicates that he intended to brief McMaholl 

about Ray Rowley's concerns regarding weapons showing up in Mexico in great numbers:'" 

128 Transcribed Intervie'N of William McMahon, Tronscript at 38, June 28, 2011 (on file with author) [hereinafter 

McMahun Transcript], 

129 E-mail from Bill Newel1 to Daw Voth December 17,2009 (HOGR ATF - 0009(6). 

46 
357 


74504D2-47.eps

ftom; 

Sont: 

To: 

Cc: 

N5WSlj, Wflll~1T' D. 

Thurway, OacGlllbgr 17, 20091'1:46 AM 

Gm~, George r, Jr, Voth, Devld J. SUbJlP'ct: Re; 

NOTICE: 11'118 ale-eimnlc ttanem!aA!onls Clonff<len11a i and rrrtencJed only for tre psr8~t·'U(A} to whom It 15 I3ddrs8sed, If yew 

have recel\led rtils-tramrnlsslcrt In Qfror, pJOOfW notify rh:" 3tfflder by reium e~mali "md destroy tr,ls FnMSOQS In It~ e-ntiroty 

(Indludll1g Ell1 oMchmenta), 

OS!! has neJt yetflnf1.\"ed a !1nk dtagrarn on thJs In'lelsttga:lon. Therefore. there Is no "chart" In exls~once (l!d"81"ammlng 

(hts hwestt.gatlQfl, Wrrer. Laerlmon and crow are C'urre.nt!~ workillG on su(:h a Ilnk·die.warn ('h~rt, Out rt is nQt 'let 

c:Jmpl~tO'. Mr, Leaomol1 eNd I'lave ~ power PQintthet~ve.an overvIew of the case and that has been forwarded to GS 

Voth, Howevl!!"r that po ...... erpCl-tnt is ~bC!ut 1 week old .. so the h"fu Is Hrmadya bit. dated; CiS 'loth find !VIr, Leoclmon ate 

s~H~Qk(J1g on Ii re8ul~r b.'3sls, so the lines of carnmtmfc:atlon are oow the equhla1eJit of the proverb-tel fire hose. During 

,YI~ of th-E-lr conver.sufions, Lorrsn told Votil thet Ray Rcwi(lV rece-Ive(j a briefing on the Investigation tl']!s week and 

mer!tfone~ the pc!:sib!:tty of ne.edll~g to $hut ti'l(l InvestlijiJtion down dL!e to tbe larga ntJmber ofgun.s that have <llreedv 

be&;Jrl trafficked. Therefore, I :spoke with R~y Rt"lwiey todBY ,md oxplalned that 11V8" though the fdentifled strBW~ 

pUrC1H!SerS bought <1pproxlmetely 175 Qlln3 lilst week l!!iOlle, we haye slowed down the FFl 00 futuro! purchAses find .are 

obtohdng Into!!tgence dlra",1'!Y related to this rny~stlg;;ltlon from the current !JEA wire tap, flay did i;>xpre.<;s !.Orne conc:s:rn 

reBa'rd!~ thE! mUll number ofgl.tr!!i that have been purchMod by thi,~ strflw-pun:hase !Scheme, I cautioned f1avon not 

doing any type of lnfonY1a!calculatlans on purchase numbers a$tMat Hke!ywUI resutt In clol1bte co\.mtloc offireantls 

(cQunting purchased gU!1S ~s well as recoversd e:iJns~. I hav~ 011.0;0 advIsed ~at we wl!lslow the ptm:h<.lsi'Jr5 down as much as possfble, b\tt WI$! have no: ldel1tifh~d tne n~twDrl( yo<!t. The reautt wli~ be that the res-pon~ibrc cQnspfrotors wfll 

h~ve I1!lW straw7 purcha.'ler.s- operatlorl81 before we oompiste the boaklnQ p<lf)erwori(, I have ar.:ked Ray to consfdar me 

hIT. dh"ti'ic't pofnt o-fcontat-'t on any future qu-e$t"ions andj01'"r;;oncflrlls ~"d iWm do the S-Bme W,t11 him. I hove also spokJ!,n 

with Kevin :J'Keefe today "nu maio'taln 1no.'l.p.line!> ofoomml.lnicatton, 

A.~ fOI' pr<ln:l to procPoli;ld, I h.we asked Mr, Voth to begirt preparing;l whIt.; paper tlla'! o!,J':ilnes j:fogreS$ to (latE' (IS well a5 

a pjan~ for proceeding with the inves;t!g<ltl:.)J1, J know that ht' wal1t.5 to tal{e the I;'lformation from the DEA wIre and spIn i 

it off on ~ w!ro !nvo!vlnethil'se!>IJI:lJect's. [ hi/:lve tilso asked Mr. Vath to prepar(l 0 JI~t of ~~(Jm·Cf:!.'ith{lt HQ can prov~de 

(pl2rso'1!'18t imd equIpment, to support ~hJs lnwstlg.rUtln. ! will kCfrt:l you p1Jste"d !'l$ things srise. 

'Georg~ T. Gillett i\SS{stant Special Ag~nt In C"f.'Irpo 

ATF. PhOOllfx Fi~~d Di'l1lslr.;ln 

In his testimony, Kumor noted that he lacked (he authority to shut down this investigation, but he 

reiterated that he raised the concerns expressed to him by ATF agents in Mexico with McMahon: 

Q. And you and Gil were in agreement that this was conceming, and 

you supported him in his view that something ought to be done -

A. Yes, once they started showing up, ahsolute1y. 

Q. But you didn't have the authority to do it? 

47 
358 


74504D2-48.eps

A. No. 

Q. However, you did raise those concerns with Bill McMahon? 

A. Yes,130 

Kumor specifically refuted McMahon's testimony to the Committees' investigators about thcse 

events: 

Q. So if McMahon said to us that you never raised these concerns 

with him, that wouldn't be completely honest; right? 

A. That I never raised them? 

Q. Right. 

A That's false. That's not true. 

Q. So you did raise these concerns on multiple occasions with Mr. 

McMahon? 

A I did. I raised the issue of the fact that these weapons had been 

had started showing up and ... what are we going to do? What's 

going on? Obviously if they're showing up in Mexico, that', a 

problem. 

Q. How early did you raise that with him as rar as the best you can 

recall'! 

A. When this thing fn'st started. When this case first started that 

you're going to bave. . I know in March when they were sbowing 

the screen and how many guns were involved. 

Q, March of 201O? 

A. March of 20 10, yes. 

Q. And McMabon was at that meeting? 

A. I believe be was. 

Q. So be sawall these gnns? 

A. Right 

IJO Kumor Transcript, at 39.40 

48 
359 


74504D2-49.eps

Q. Did he ever express to you (hat's a concern of his? 

A. Yeah, I think we've had - we had discussions where he was 

concerned as well. But, again, it kind of came back to ... our 

hands are tied. The U.S. attorneys' office is not going to charge 

these guys .... IT]hey want to go up on a wire, so they're going up 

on a wire, and they're going to do the case that way. So from my 

standpoint, I was like, well .. the U.S. attorney's office is 

involved. . Newell is running the case, You're aware of it. 131 

VII. Reaction of ATF Officials in Mexico 

FINDING: ATF official. in Mexico finally realized the truth: ATF allowed guns to walk. 

By withholding this critical information from its own personnel in Mexico, 

ATF jeopardized relations between the U.S. and Mexico. 

When Special Agent John Dodson and the other ATF whistleblowers first came forward 

with allegations that guns were walked across the Mexican border during Operation fast and 

Furious, Canino and Gil refused to believe them. Gil and Canino could not believe that the ATF 

would actually utilize a tactic that contravened the training and Held experience of every ATF 

agent. Gil and Canino, the top two A TF omcials in Mexico, couid not even conceive that ATF 

would employ a strategy of allowing weapons transfers to straw purchasers. As Canino testified: 

Q. So a( no time did you think [gunwalkingJ was a deliberate effort or 

part of a strategy? 

A. No. That was, like I said, in 21 years as an ATF agent, as a guy 

who teaches surveillance techniques, as a guy who teaches agents 

how to conduct field operations, never in my wildest dreallls ever 

wonld 1 have thought that this was a teChnique. Never. Ever. 

It just, it is inconceivable to me. 132 

Q And that is hecause of the dangers involved? 

A. Just - you don't do it. You don't wa[lkJ guns. You don't wa[lk] 

guns .... You don't lose guns. You don't walk guns. You don't 

let gllns get Ollt of your sight. You have all these undercover 

techniques, ail these safety measures in place so guns do not get 

Qut of your custody or contro!. I mean, I mean, you could follow, 

you could do a surveillance for 1,000 miles ... either use planes, 

trackers, you use everything under the sun, but at the end of the 

131 Jd. at 41-43. 

lJ2 C<:1.l1ino Transcript, at 12. 

49 
360 


74504D2-50.eps

day, those guns do not leave your control. At some point those 

guns do not get into the streets. lJJ 

Gil felt the same way as Canino: 

... And so the - to me, when I first heard this going on in the media 

abont the potential for ATF letting guns walk, it was 

inconceivable. ] didn'l want to believe it. It just - it would 

never happen. E:veryhody knows the consequences on the 

other end of. . these guns arcn1t going for a positive cause, 

they're going for a negative cause. The telID II guns walking!! didntt 

exist in my vocabulary"" 

In fact, Canino - an instructor for field operations and undercover operations for A Tf since 

1998, and a founding member and teacher of the A TF enhanced undercover training program -

felt so confident that these allegations were false, that he began assuring people that the 

allegations had no merit: 

Never, it is just, you don't do that. It is not - what these guys did 

was basically grab the ATF rule hook on trafficking and threw 

it oul the window. This is indefensible. It is indefensible, The 

A TF does not do t!Iis. . .. lowe people apologies becausc when 

this Hrst came oul, I did not believe it. 

* '" * =I< 

rWjhen this first broke, I said there is no way this happened. 

[Mly boss told me, hey, Carlos don't be so vocal about this. 

wait, wait to see what happens. I told him, I said, hoss, we didn't 

do this. He said how are you so ,ure? I said because we don't 

teach this, this is not how we are taught,135 

Dan Kumar remembers cautioning Canino about being too quick to deny the allegations. As 

Canino's supervisor, Kumor did not want him to potentially have to retract false and misleading 

comments made to his Mexican counterparts. As somebody stationed in A TF headquarters, 

Kumor may have knowu there could be some merit to the allegations: 

l33 Id. at 12-13, 

And I said ... but I told Carlos, I said ... until we find out what's 

going on, I wouldn't be - if we get questions about what happened, 

we're going to have to direct ".11 that to the Phoenix field division 

or field ops because we don't know. And the last thing I wan! to 

do is represent or have you guys represent to the rVlexicans or 

anybody else that, hey ... there's no issues with any of this CaRe. 

13,1 Gil Tnmscript, at 48. 

lJ5 Camno Transcript, at 13-14. 

50 
361 


74504D2-51.eps

We don't know, and I don't want that coming back later because 

that would certainly be an issue with them " far as their 

reputations and their ability to be able to operate in the future down 

there. 136 

As more information came to light, however, Gil and Canino concluded that hundreds and 

hundreds of guns had been walked, These guns ended up in at crime scenes in \1exico, about 

which Gil and Canino received extensive briefings, Gil and Canino became incensed when they 

finally began to learn about the full scope of Operation Fast and Furious and Ihe investigative 

techniques involved: 

Q, When you first got the impression that this was part of a strategy to 

let guns walk into Mexico, what was your reaction to that strategy? 

A, I wasn'l convinced that this happened lmlil this past April after all 

the allegations were made, and I talked to different people, I was 

beyond shocked. Embarrassed. I was angry. I'm still angry. 

Because this is not what we do . 

. . . That is, I mean, this is tile perfect storm of idiocy, That is the 

only way I could put it This is, I mean, this is inconceivable to 

me, 1bis is group think gone awry, You know what Geneml 

George Patton says, if we are all thinking alike, then nobody is 

thinking, Right? Nobody Was thinking here, How could anybody 

think, hey, let's follow, I mean there is a guy in this case that 

bought over 600 guns, At what point do you think you might want 

to pull him aside and say, hey, come here for a second, 137 

When Canino himselfuncovcred hard evidence that ATF had allowed the guns to disappear from 

their surveillance he understood the whistleblower allegations were true: 

Q, Okay, and take us through what happened in ApriL 

A, I was here on a visit to headquarter" 

Q, Alcohol, Tobacco and Firearms headquarters? 

A, Alcohol, Tobacco and Firearms headquarters, and I was, I was 

looking at a, the management log on this case, And the first two 

pages, if I'm not mistaken, there are entries there that 

chronicle "' walking away on three separate ,,<casions from 

,tash houses, 

JJ6 Kumor Transcript, at 98-99. 

]37 Canino Transcript, 3t 17-19, 

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Q, And did that sound to you incredible? 

A, I stopped reading, 

Q, So you only got through two pages of this management log? 

A, Yeah, 

Q, And then you couldn't read it any longer? 

A, Didn't want to, 

Q. Because you were so upset? 

A, Yes, 

Q, And you were upset becanse walking away from three stash houses 

stmek you as so outrageous? 

A, Walking away from one, walking away from one gun when you 

know that tbat gun is going to be used in a crime when you, I 

mean, there is no, tbere was no gray .. rea bere guys, There was 

no gray area bere, We knew that these guys were trafficking 

guns into IV1exico. There is no gray area. They \vcrcn1t 

trafficking, [the] guys weren't going out and buying two Larson 22 

pistols, Tbese guys were buying 7,62, 223's, ,50 caliber rifles, 

okay, there was no mistake about this, This is 110 gray ..... a,l38 

Gil realized the full scope of Operation Fast and Furious only after be retired from ATF, It took 

the public allegations of the whistieblowers and contacts with his fanner colleagues for Gil to 

fully comprehend the tactics used in Operation Fast and Funaus: 

Q. Now, wben you were speaking with [a Congressional investigator] 

you indicated that you learned about the specific tactics of 

operation Fast and Furious. Can you remind us when that was? 

A, It was after I retired, Tt was .fter the sbooting of Border Patrol 

Agent Terry, I started getting phone caHs saying, hey, this is -

there is something to this thing, these guns were knowingly 

allowed into Mexico, And so that was the tirst knowledge that I 

had about the potential allowing guns to go into Mexico, 

Q, And how did you become aware of that? 

m Jd at 25-26, 

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A. Several phone calls from agents, speaking to my deputy or my 

former deputy, Carlos [Canino], who I remained in contact with. 

Seeing Agent Dodson on TV and getting phone calls primarily. 

And then I was contacted by several media sources including 

CBS.'" 

After realizing that A TF had let guns walk, Gil's concerns turned to the safety of A TF agents in 

Mexico: 

Q. And I believe you mentioned that in the aftennath of Agent 

Dodson's interview on CBS, you had concerns about your former 

agents in Mexico. What were - what were the concerns you had 

for them? 

A. I had spoken to my deputy primarily and he mentioned that, 

obviously, the Government of Mexico\ our counterparts are not 

happy with this situation. It made it tough for them that ... didn't 

want to work with them. It's like, hey, we can't trust you, you guys 

are allowing these guns to come in, Inside the embassy because 

the Governmen! of Mexico was irritated with us, they held that 

against the other agencies within the embassy, maybe slowing 

down Visas to allow personnel to come in and work in Mexico. 

Obviously the ambassador probably, I didn't speak -- T haven'! 

spoken to him since I left the country, but my understanding is he 

W8'" 't happy about it. And so there might have been some 

friction there between the acling attache', Carlos [Canin~ J, and 

him. And so it was several conflicts going on. And, again, they 

just started looking at the articles and the bloggers and some of the 

media reports in Mexico that the ATF was corrupt, and we were 

taking kickbacks to allow these weapons to come in, which puts a 

big zero - crossbar on my guys' backs down there. 

Q. When you say crossbar? 

A. I'm sorry, I should clarify that. 

Q. Sure. 

A. Puts a mark on their back, for instance, targets for not only conl1pt 

caJ1el members to find oul who they are and kidnap or kill, which 

is some of the unf011un.te areas I had to deal with down there. 

And then _. or Government of Mexico officials not happy and .. 

. they may arrest you, indict YOII, take away your Visa .nd 

139 Gil Transcript, at 81-82. 

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throw you on! of the country. So there's all these things going 

on down there amongst my former crew,140 

FINDING: The high-risk tactics of cessation of surveillance, gunwalking, and noninterdiction of weapons th.t ATF u.ed 10 Fast and Furiou. went against the 

core of ATF'. ",i.sion, as well as the training and field experience of its 

agents. Tilese naws inherent ill Operalion Fas! and Foriou. made tragic 

consequences inevitable. 

A. The Murder of Mario Gonzalez Rodriguez 

On October 21,2010, drug cartel members kidnapped Mario Gonzalez Rodriguez from 

his office, At (he time of the kidnapping, his sister Patricia Gonzalez Rodriguez was the 

Attorney General of the state of Chihuahua in northwestern Mexico, A few days after the 

kidnapping, " video surfaced on the Internet in which Mario Gonzalez Rodriguez sat handcuffed, 

snrrounded by live heavily armed men wearing masks, dressed in camouflage and bullet-proof 

vests, Apparently under duress, Rodriguez alleged that his sister had ordered killings at the 

behest of the Juarez cartel, located in Chihuahua, 141 The video quickly went viral, instantly 

becoming a major news story in Mexico. 

Patricia Gonzalez Rodriguez denied her brother's allegations, claiming the armed men 

holding him hostage coerced Mario into making his statements, Patricia Gonzalez Rodriguez 

a"olied her brother's kidnapping was payback for the prosecutions of members of the Sinaloa 

cartel and corrupt Mexican law enforcement officers, Ms, Rodriguez left her post as attorney 

general later that month. 

On November 5, 2010, Mexican authorities found Mario Gonzalez Rodriguez's body in a 

shallow grave, 142 Shortly after this grisly discovery, the Mexican federal police engaged in a 

shootout with drug canel members, which resulted in the arrest of eight snspects, Police seized 

sixteen weapons from the scene of the shootoU!. Two of these weapons traced back to Operation 

Fast and FurioU~.143 

E-mails obtained by the Committees indicate that ATF knew about the link to Operation 

Fast and Fnrious almost immediately after the h'acG results came back. A November 15, 2010 email from ATF's osn to the Phoenix Field Division alerted Phoenix that two oflhe recovered 

AK-47s weapons traced back to Operation Fast and Furious,"" A number of employees from 

Iol-O fa. at 82-84. 

141 Kim Murphy, u.s. AK-17s Linked to Mexican attorney's slaying, L.A. TIMES, June 23, 2011, available at 

http://articles.btimes.co m/20 11 ijt:.n!23/nation!la-no-gunnmner-20 11 0623. 

142 Maggie Ybarra, 8 Held in Dt'ath oj Ex-Chihuahua AG 's Brother, BL PASO TIMES, November 5, 2010, available 

at http:r'/wwwelpflsotimes,com/ncws!cl .16537620. 

143 Em!ul from Tonya EngJ!sh to David Voth, November ]5, 2010 (HOGR ATF - 001792). 144 /

0'. 

S4 
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0811 contacted their colleagues in Phoenix TO alert them of this connection. OSI! agents also 

told ATF personnel in Mexico. 145 

Carlos Canino infonned ATF headquarters about the link between the Gonzalez murder 

and the subscquem shoolout to Fast and Furious. However, no one authorized Canina to inform 

the Mexican government about the connection. 

Q. Who did you mention it to? 

A. I mentioned it to the Director. 

Q. That's Acting Director Melson? 

A. Yes. I mentioned it to Billy Hoover, I mentioned it to Mark Chait, 

I mentioned it to Bill McMahon, I mentioned it to my boss Danny 

Kumar. 

• •• 

A. I remember at least two times when I mentioned it to them. I said 

one of us - look, here's what happened. Okay, this woman is a 

prominent politician. 

Q, This is Miss Patricia Gonzalez'? 

A. Right. 

Q. She's no longer aA. No longer, right. .. [T]his is front page news for days in Mexico, 

we need to tell them this, because if we don't tell them this, and 

this gets out, it was my opinion that the Mexicans would never 

trust us again because we were holding back this type of 

information. And every time I mentioned it... guys started 

looking at their cell phones, silence in the room, let's move on 

to the next subject, ... I wasn't told, yea, (ell her, but I was never 

told, no, you can't tell her. I was never told lha!. It was just 

indecision. 

Q. So you were getting no instructions at all? 

A. Zero instructions. 146 

14S Interview with Lorren Leadmon, Intelligence Operations Specialist, in Wash., D.C., July 5, 201! 

146 Canine Transcript, a.t 31-32. 

55 
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Acting Attache Canino continued to feel strongly that the Mexican government should be 

infornled of the link between the Mario Gonzalez murderers and Operation fast and furious, He 

also believed that, given the seriousness of the information and the negative fallout that would 

likely ensue, ATF headquarters should share this information with the U,S, Ambassador to 

Mexico. 1tt ? 

The rapidly escalating media scrutiny would eventually expose the connection between 

the Mario Gonzalez Rodriguez murderers and Operation Fast and Furious. In Canino's view, 

sharing this information directly with Mexican officials before the press exposed it was of 

paramount importance to preserve U,S,-Mexico relations and the ability of ATf personnel to 

operate in Mexico, Not until June 2011, nearly eight months after ATF became aware of the link 

between Operation fast and Furious and the guns recovered following the shoolaG!, did Canino 

notify the Mexican government: 

Q, And why did you do that [tell Ms. Morales]? 

A, I communicated that to the Mexican Attomey General Maricela 

Morales because I did not want her ~o find out through media 

reports where these guns had come from. I wanted her to find out 

from me, because she is an ally of the U.S, Government. She is 

committed to t1ghting these cartels, she is a personal friend, and I 

owe her that. 

Q, That courtesy? 

A, lowe her that courtesy, absolutely. 

* * '* 

Q, And even though you really didn't get permission - well, I guess 

Me. Kumar sort of approved, but no one else really did? 

A, Right. 

Q, But you still decided that it was important for you to disclose that 

information? 

A. If I hadn't told the Attorney Gellcral this, and this had come 

out in the news media, [ would neve,' be able to work with her 

ever again, and we would be done in Mexico. We just might as 

well pa<,k up the office aua go home, 

147ld at 32, 

Q, So the fact that these glms traced hack to this program Fast 

and Furious has the potential, perhaps even did, to create an 

intemational incident? 

56 
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A. This has .lready created an international incident. 

Q. Bu! this is even more persona!? 

A. When the Mexican media gets ahold of this, it's going to go 

crazy, 

Q. By "this" you're talking about the tracing to the death of 

I\1ario Gonzalez? 

A. Absolutely. 

. .. Q. Now, what was her reaction when you told her? 

A. She was shocked. 

Q. Did she say anything, exclaim anything? 

A. She .aid, "Hijolc," which translates basically into, "Oh, 

my." 

Q. Oh, my God? Oh, my? 

A. Yeah. 148 

The failure to inform the Mexican government earlier risked possible international implications. 

This failure to inform is another example of ATF leadership withholding essential infonnation 

related to Operation Fast and Furious. 

B. The Mexican Helicopter Incident 

A May 2011 shootout between Mexican police and cartel members demonstrates the 

broadening impact of Operation Fast and Furious. On May 24, 2011, La Familia DTO gunmen 

forced a Federal Police helicopter to make an elTlergenuy 181ldillg in the state of Michoacan, 

located in western Mexico,149 The gunmen attackcd the heliC<'!,!"L wounding two officers on 

board and forcing the aircraft to land near the scene urthe attack.' " Canino described the event: 

A. I think it was on May 24th the Mexican Federal Police mounted an 

operatiou against members arLa Familia, 

143 Jd, at 30-31. 33, 

149 '~Drug Gunm;:::n Force Down MexicDn Police Helicopter," AP, May 25, 2011, available at http://www.signonsandiego.com/newsf201Iimay!25/dmg-gunmen-force-dcwn-mcxic~n-policc-helicopti!r/. 

)50 I d. 

57 
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Q, That's a dmg oartel? 

A, Right In the State of Michoacan, When the Mexican Federal 

Police was deploying Its troops via helicopter, they came under fire 

from members of La Famllia, I believe in the May 24th ineiden! 

two cre\vmen were hit. 

Q, These were soldiers or policemen? 

A Policemen, Federal policemen, They were hit The helicopter 

new off, My understanding is that that helicopter could have made 

it back to the base under its own power; however, it landed to 

render aid 10 Lhe injured people on board, lSi 

On May 29, 20 Il, the federal police launched a massive raid on the La Familia DTO, During 

the raid, cartel gunmen again attacked Federal Police helicopters and wounded two more 

officers: 

A, Fast forward to May 29th, Again, the Mexican Federal Police 

mount another operation, I believe this time it was in the State of -

-I need to look at a map, Anyway, it was a bordering State, 

Q, Okay, 

A They were coming in, Members of La Familia cartel engagedthere were four helicopters - engaged them, I believe all four 

helicopters were simek by fire, Mexican Federal Police returned 

fire from the helicopters; able to suppress the tire coming in, 

offloaded, and the helicopters all flew back, and they were back in 

service within a few dllYS, 

Q, Kow, was there any people hurt on the ground, any deaths? 

A. I believe in the second operation, I believe ... Mexican Federal 

Police killed, I believe either 11 or 14 people, 152 

The raid resulted in the deaths of 11 cartel members and the arrest of 36 cartel members, 

including those suspeeted of firing on the helicopter several days earlier, Authorities also found 

a cache of more ,han 70 rifles at the scene, including a Darrett ,50 caliber rifle, Some oflllese 

weapons traced back to Operation Fast and Furious,153 Mexican police also found a stash of 

heavy-duty body armor belonging to the cartels, This was the first lime ATF in Mexico had seen 

151 Canino Tmnscript, at 34. 

at 34. 

Id. at35, 

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iI>eh body .nnor in the b.allds of w cartds. Alool with the B">1l'n .SO c.lil>rr ril\<::$, Ihef<: , ... IJI 

lymbo!iZC!l a _le",,1 ofoophis.ica.iOll in canel weaponry.'" 

DurinJ I trip 10 McxieoCity 00 JIIIIe n. 2011, Membenand IlafHrom the U.s. II"""", 

of Rep~nla.i'<:s Committee on (h· .... i&lo. lJId (iovcmmcn. had an oppGnllnlly \0 vWl.11y 

.... 1'"\ 1M do .... poI h.lj~.'" S ......... bull.lhoI .. ..-- "" .... , .... lhe body of lhe a;",,,,fI. 

AOO ant" round ftom •• ~~libc1 riOe pencl .. I...:! the thIck "bIIl~1 proor' alus windshH:1ti 

The downed llelicoptcr incident and IlIbMquen\ police .. I.ld mulled in the recovcry of 

Operation Fal and Furiou. wupons thll may b.a"" been u=llgainil the M"";taII polite. 

8an-c:u .50 ealiber riO ... provide I .;",iflam IIfIgrI(1e to Ilw eNle'll' ability \0 inOict serious 

damalle and C8§ualnes 011 their enm1ie$. AI Canino Icslilicd: 

[T)hc I'OWII Wl$ up 10 1,900 ¥WIll [am>c:lllo:d .... ,111 fait md 

Furious[ in 5USp«I &Un data. )4 of whith wne, J..oI of .... h;ch .... ere 

.50 colibcr rifles. And I, my opinIon was thlt 1bcH. mlny .~O 

caliber riOc. in the hindi of ORe of these: u rltls 11 ,oinK 10 

t h .... KC .ht outcomt OrM bMW.,'" 

~ioUlly, we~""1IIi hod bc:cn linked back 10 the Sinlloa cane! and mcnlbcn oflhc E.l Teo 

OIpIll2ltiOl'l, an off-cbool ti"om the &l\rl.n ·1.11")"'1 ca!1cl. La Famili. OTO lillie third can:! 

connected 100pera11on Fast and Furious weaporw. The May 24. 2011 dIooIlIII .bow.thal 

Operation fIJI and Fuoo... "'uponl mar, be found In • broadc.-r 8COPphic an:a ilion !he 

tenllOQ' controlled by the Sinaloa OTO. " This sprclld orOpcnotioo flit and FIlriouI ",capo'" 

may pIau lUI en·n IIfnter number or Muitan (IWen, in hlnn', w.y. 

I" C_ T.-.,c. .. J6. 

".~ _ v_Sao ... ~ ... fl'._(" .......... .-J Vit ... _:S.)OII f .. Il10 .. ,,,,._). ' .. ea....oTl __ i ...... t7 

.., .lftA,cuofC ... d Ioflo<to<erill M~,_ ... ,. It 

" 
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IX. Conclusion 

According to the Justice Departmentls July 22\ 2011 response to Questions for the 

Record posed by Senator Grassley, Fast and Furious BUSpo;;cIS pnrchased 1,418 weapons after 

becoming known to the ATF.'" Of those weapoll~, 1,048 remain un.''''mmll)d for, since the 

Department's response indicates that the guns have not yet been recovered and traced.'" U.S 

and Mexican law enforcement officials continue to seize weapons connected to the operation and 

recover weapons at crime scenes on both sides oflhe border. Given the vast amount of 

Operation Fast and Furious weapons possibly still in the hands of cartel members, law 

enforcement officials should expect more seizures and recoveries at crime scenes, According to 

several agents involved in Operation Fast ami Furious, ATF agents will have to deal with these 

guns for years to come,160 

Some aspects of Operation Fast and Furious may ultimately escape scrutiny given the 

difficulties of tracing weapons recovered in Mexico. The possibility remains for more highprofile deaths linked to Operation Fast and Furious. Canino bluntly described his reaction to that 

possibility: 

Q. When you first got the impression that this was part of a strategy to 

let guns walk into Mexico, what was your reaction to that strategy? 

A. The guys in Mexico will trace those. . I'm beyond angry. Brian 

Ten), is not the last guy, okay, guys? Let's put it out there right 

now. Nobody wants to talk about that. Brian Terry is not the last 

guy unfortunately.. . Unfortunately, there are hundreds of 

Brian Terry. probably in Mexico .•. we ATF armed the 

[Sinaloa] cllrtel. II is disgusting. l6I 

The faulty design of Operation Fast and Furious led to tragic c.onsequences. Countless 

United States and Mexican citizens suffered as a result. The lessons learned from exposing the 

risky tactics used during Operation Fast and Furious will hopefully be a catalyst for better 

leadership and better internal law enforcement procedures. Any sIr.logy or tactic other than 

interdiction or illegally purchased firearms at the first lawful opportwlity should be subject to 

strict operational controls, These controls are essential to ensure that no government agency ever 

again allows guns to knowingly flow from American gun stores to intennediaries to 11exlcan 

dmg cartels. 

:58 Letter from Ronald Weich, Asst. Att'y Gen., U's. Dep't of Justice, to Senator P3trick Leahy, Chainnan, Senate 

:fud. Comm., July 22, 2011, 13. 

I~'i Jd at 14. 

160 See Casa Transcript, at 17; see a/so Opemtion FaSt ana' Furious: Reckless Decisions, Tragic Outcomes, 111 th 

Cong. 44 June 14,2011 (st:ltement oFPeter Forcclli, ATF Special Agent). 

Hi1 Can1!JO Tnmscripl, at 17-19. 

60 
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Tlte Department 0/ Juslice's Operation Fast and Furious: 

ACCQultls of A TF Ageltts 

J O INTSTAFP REPORT 

Prepard for 

Rtp. Darrt ll E. IUa, Chairmlll 

Uniled Slales lIouse of Repruenlatil'u 

Commlnee nn O"cr~ hl Mnd Government Rtfornl 

& 

S~nalor Charlu E. Granley, Ranking Member 

United ltc~ S('nl le 

Cnmmillee on the Judiciary 

112'" Congress June 14 2011 
372 


74504D3-2.eps

L Executive Summary 

II. Table of Names ............................................. . 7 

III. Findings ............................................................................................................................. 9 

IV. The ATF Policy on Gun Interdiction: "You Don't Get to Go Home" ................................ 11 

A. The Justification for Operation Fast and Furious.............................. .. .............. 11 

B. Trained to Tnterdict......................................................................... . ........ 14 

V. Gunwalking Defined: It's Semantics............................................................... 18 

VI. Concerns about Gunwalking: "What the Hell is the Purpose of This?" ............................ 21 

A. Concerns Fall on Deaf Ears and Meet Resistance ........................... .. .. ........... 21 

B. Tragic, Yet Foreseeable Results ................................................... . .. .. 24 

c. Catastrophe Becomes Reality ............................................ " .............................. . 28 

VII. Witnessing Gunwalking: "We Did Not Stop Them." ..... .28 

A. Watching Guns Walk .............................. " ....... " ........ .. 29 

B. Ordered to Stand Down ....... 30 

C. "We Were Walking Guns. It was Our Decision." ... " .................................................... 34 

VIII. Collateral Damage: A Fast and Furious Inevitability ... .. ....................... 35' 

Increasing Volume Equals Increasing Success ......... , .... , ." .. 35 

B, "You Need to Scramble Some Eggs" .................................................... " ...... , ............... , 38 

c. An Inevitable and Horrible Outcome ............................................ , .... , .. , .. , ............. , ..... 39 

D. The Pucker Factor ' ............................ , .. " .................. "'" .... , .... ', .. , .... , ....... , ........ ", ..... , ...... 41 

IX. The Tragic Death of U.S. Border Patrol Agent Brian Teny. .. 43 

X. The Begilming ofDOrs Denials: "Hell, No!" ............................................................... ' 46 

Page 12 
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74504D3-3.eps

XL DOJ's Continued Denials: "That is False." ...... 

A. 

B. 

XU. 

"Of Course Not" .......................................... . 

More Denials ............................................ .. 

Conclusion .............................. .. 

. ............................... 49 

............................... 49 

51 

51 

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I. Executive 

Tn the fall of2009, the Department of Justice (DOJ) developed a risky new strategy to 

combat gun trafficking along the Southwest Border. The new strategy directed federal law 

enforcement to shift its focus away from seizing fireanns from criminals as soon as possiblcand to focus instead on identifying members of trafficking networks. The Bureau of Alcohol, 

Tobacco, Fircanns and Explosives (A TF) implemented lhal strategy using a reckless 

investigative technique that strcet agents call "gunwalking." ATF's Phoenix Field Division 

began allowing suspects to walk away with illegally purchased guns. The purpose was to wait 

and watch, in the hope that law enforcement could identify other members of a trafficking 

network and build a large, complex conspiracy case. 

This shift in strategy was known and authorized at the highest levels ofthe Justice 

Depaliment Through hath the U.S. Attorney's Office in Arizona and "Main Justice," 

headquarters in Washington, D.C., the Department closely monitored and supervised the 

activities ofthc ATf'. The Phoenix Field Division established a Gun Trafficking group, called 

Group VII, to fOCllS on fircamls trafficking. Group VB initially began using the new gunwalking 

tactics ill one of its investigations to further the Department's strategy. The case was soon 

renamed "Operation Fast and Furious," and expanded dramatically. It received approval for 

Organized Crime Drug Enforcement Task Force (OCDETF) funding on January 26, 2010. ATr 

led a strike force comprised of agents from ATF, Drug Enforcement Administration (DEAl, 

Federal Bureau ofInvcstigation (FBI), Immigration and Customs Enforcement (ICE), and the 

Internal Revenue Service (IRS). The operation's goal ,vas to establish a nexus between straw 

purchasers of assault-style weapons in the United States and Mexican drug-trafficking 

organizations (DTOs) operating on both sides of the United States-Mexico bonIer. Straw 

purchasers are individuals who are legally entitled to purchase firearms for themselves, but who 

unlawfully purchase weapons with the intent to transfcr them into the hands ofDTOs or other 

criminals. 

Operation Fast and Furious was a response to increasing violence fostered by the DTOs 

in Mexico and their increasing need to purchase ever-growing numbers of more powerful 

weapons in the U.S. An integral component of Fast and Furious was to work with gun shop 

merchants, or "Federal firearms Licensees" (FFLs) to track known straw purchasers through the 

unique serial number of each firearm sold. ATF agents entered the serial numbers of the 

weapons purchased into the agency's Suspect Gun Database. These weapons bought by the 

straw purchasers included AK-47 variants, Barrett .50 caliber sniper rit1es, .38 caliber revolvers, 

and the FN Five-seveN. 

During Fast and Furious, ATF frequently monitored actual transactions between the FFLs 

and straw purchasers. After the pmchases, A TF sometimes conducted surveillance of these 

weapons with assistance from local police departments. Such surveillance included following 

the vehicles of tile straw purchasers. Frequently, the straw purchasers transferred the weapon~ 

they bought to stash houses. In other instances, they transferred the weapons to third parties. 

The volume, frequency, and circumstances of these transactions clearly established reasonable 

Page i 4 
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74504D3-5.eps

suspicion to stop and question the buyers. Agents are trained to use such interactions to develop 

probable cause to an-cst the suspect or otherwise interdict the weapons and deter future illegal 

purchases. Operation Fast and Furious sought instead to allow the flow of guns from straw 

purchasers to the third parties. lnstead oftrying to interdict the weapons, ATF purposely 

avoided contact with known straw purchasers or curtailed surveillance, allowing guns to fall into 

the hands of criminals and bandits on both sides of the border. 

Though many line agents objected vociferously, ATF and DO] leadership continued to 

prevent them from making every effort 10 interdi ct illegally purchased firearms. Instead, 

leadership's focus was on trying to identify additional conspirators, as directed by the 

Department's strategy for combating Mexican Dmg Cartels. ATF and DO] leadership were 

interested in seeing where these guns would ultimately cnd up, They hoped to establish a 

connection between the local straw buyers in Arizona and the Mexico-based DTOs, By cntering 

serial numbers from suspicious transactions into the Suspect Gun Datahase, A TF would be 

quickly notified as each one was lakr recovered at crime scenes and traced, either in the United 

States or in Mexico. 

The Department's leadership allowed the ATF to implement this flawed strategy, fully 

aware ofwhal was taking place on the ground, The U,S, Attorney's Office for the District of 

Arizona encouraged and suppOlted every single facet of Fast and Furious. Main Justice was 

involved in providing support and approving various aspects ofthe Operation, including wiretap 

applications that would necessarily include painstakingly detailed descriptions of what ATF 

knew about the straw buyers it was monitoring, 

This hapless plan allowed the guns in question to disappear out ofthe agency's view. As 

a result, this chain of events inevitably placed the guns in the hands of viol en I criminals. ATF 

would only sec these guns again after they turned up at a crime scene, Tragically, many ofthcse 

recoveries involved loss of life. While leadership at ATF and DO] no doubt regard these deaths 

as tragic, the deaths were a clearly foreseeahle result ofthe strategy. Both line agents and gun 

dealers who cooperated with the ATF repeatedly expressed concerns about thal risk, but ATF 

supervisors did not heed lhose warnings. Instead, they told agents to follow orders because this 

was sanctioned from above. They told gun dealers not to worry bec~use they would make sure 

the guns didn't fall into the wrong hands, 

Unfortunately, A TF never achieved the laudable goal of dismantling a drug cartel. In 

tact, ATF never even got close. After months and months of investigative work, Fast and 

Furious resulted only in indictments of 20 straw purchasers. Those indictments came only after 

the death ofe.S. Border Patrol Agent Brian Tcny. The indictments, t11ed January 19,2011, 

focus mainly on wbat is known as "lying and buying." Lying and buying involves a straw 

purchaser falsely tilling out ATF Fonn 4473, which is to be completed truthfully in order to 

legally acquire a firearm. Even worse, ATF knew most ofthe indicted straw purchasers to be 

straw purchasers before Fast and Furious even began. 

In response to criticism, ATF and DOJ leadership denied allegations that gunwalking 

occurred in Fast and Furious by adopting an overly narrow detlnition of the ternl. They argue 

that gUl1walking is limited to cases in which ATF itself supplied the guns directly. As field 

Page 15 
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agents understood the term, however, gunwalking includes situations in which ATF had 

contemporaneous knowledge of illegal gun purchases and purposely decided not to attempt any 

interdiction. The agents also described situations in which ATF facilitated or approved 

transactions to known straw buyers. Both situations arc even more disturbing in light of the 

ATF's certain knowledge that weapons previously purchased by the same straw buyers had been 

trafficked into Mexico and may have reached the DTOs. When the full parameters of this 

program became clear to the agents assigned to Group VII, a rift formed among Group VII's 

agents in Phoenix. Several agents blew the whistle on this reckless operation only to face 

punishment and retaliation from ATF leadership. Sadly, only the tragic murder of Border Patrol 

Agent Brian Terry provided the necessary impetus for DO] and ATF leadership to finally indict 

the straw buyers whose regular purchases they had monitored for 14 montlls. Even then, it was 

not until after whistlcblowers later reported the issue to Congress that the Justice Department 

finally issued a policy directive that prohibited gunwalking. 

This reporl is the first in a series regarding Operation Fast and Furious. Possible future 

reports and hearings will likely focus on the actions of the United States Attorney's Otftce for 

the District of Arizona, the decisions faced by gun shop owners (FFLs) as a result of ATF's 

actions, and the remarkably ill-fated decisions made by Justice Department officials in 

Washington, especially within the Criminal Division and thc Office ofthe Deputy Attorney 

General. This first installment focuses on ATP's misguided approach ofletting guns walk. The 

report describes the agents' outrage about the usc of gunwalking as an investigative technique 

and the continued denials and stonewalling by DOJ and ATF leadership. It provides some 

answers as to what went wrong with Operation Fast and Furious. Further questions for key ATF 

and DOJ decision makers remain unanswered. For example, what leadership failures within the 

Department of Justice allowed this program to thrive? Who will be held accountable and when? 

Page 16 
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Table of Names 

.John Dodson 

Special Agent, ATF Phoenix Field Division 

Agent Dodson is the original whistleblower who exposed Operation Fast and Furious. A seven· 

year veteran of ATF, Dodson also worked in the sheriffs offiees in Loudoun County and other 

Virginia municipalities for 12 years. Agent Dodson was removed from Phoenix Group VII in 

the summer of2010 for complaining to ATF supervisors about the dangerous tactics used in 

Operation Fast and Furious. 

Urian Tqn: 

US. Border Patrol Agent 

Brian Terry was an agent with the U.S. Border Patrol's Search, Trauma, and Rescue team, 

known as BORSTAR. He served in the military and was a Border Patrol agent for three years. 

On December 14.2010, during a routine patrol, Terry was confronted by armed bandits. He was 

shot once and killed. Two weapons found at the scene traced back to Operation Fast and 

furious. 

Jaime Avila 

Straw Purchaser 

Jaime Avila was the straw purchaser who bought the two AK·47 varianl weapons that were 

found at the murder scene of Brian Terry. Avila honght the weapons on January 16,2010. ATF, 

however, began conducting surveillance of Avila as carly as November 25,2009. On January 

19, 2011, Avila was indicted on three COUllt~ of "lying and buying" for weapons purchased in 

January, April, and June 2010. 

David Voth 

Phoenix Group VII Supervisor 

Agent Voth was the fonner supervisor of the Phoenix Group VII, which conducted Operation 

Fast and Furious. As Group vn Supervisor, Voth controlled many operational aspects of Fast 

and Furious. Voth is no longer in Phoenix. 

Pete Forcelli 

Group Supervisor, ATF Phoenix Field Division 

Since 2007, Agent Forcelli has been the Group Supervisor for Phoenix Gronp r. Before Phoenix 

Group VII wa~ fanned in October 2009. Group T was the primary southwest border firearms 

group. Before joining ATF in 2001, Agent Forcelli worked for twelve years in the New York 

City Police Depmtrncnl. as a police officer and detective. 

Pag~ i 7 
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74504D3-8.eps

Oliudo Cas a 

Special Agent, ATF Phoenix Field Division 

Agent Casa served in Phoenix Group VII during Operation Fast and Furious. ,\gcnl Casa is an 

lS-year veteran of ATF, having worked in Chicago, California, and Florida. In Chicago, Agenl 

Casa worked on numerous firearms trafficking cases, including a joint international case. Agent 

Casa had never seen a gun walk until he arrived at Group vn in Phoenix and participated in 

Operation Fast and Furious. 

William Newell 

Special Agent in Charge, ATF Phoenix Field Division 

Agent Newell was (he fonner head of the A TF Phoenix Field Division during Operation Fast and 

Furious. Newell is no longer in Phoenix, 

Emory Hnrley 

Assistant u.s. Attorney, District oJArizona 

Emory Hurley is the lead prosecutor for Operation Fast and Furious. Hurley advised the ATF 

Phoenix Field Division on the Operation, including instmcting agents when they were and were 

not able to interdict weapons. 

Larry AU 

Special Agent, ATF Phoenix Field Division 

Agent Ait served in Phoenix Gronp VII during Operation Fast and Furious. An ll-year veteran 

of ATF, Agent Alt worked as a police ortieer for five years before joining ATF. Agent Alt is 

also a lawyer, having served as deputy county attorney in Maricopa County, a county of nearly 4 

million people that encompasses the Phoenix metro area. 

Page! S 
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m. 

» DOJ and A IF inappropriately and recklessly relied on a 20-year old AIF Order to allow 

guns to walk. DOJ and A IF knew from an early date that guns were being trafficked to 

theDIOs< 

»> A TF agents are trained to "follow the gun" and interdict weapons whenever possible< 

Operation Fast and Furious required agents to abandon this training< 

» DO] relics on a narrow, untenable definition of gunwalking to claim that guns were never 

walked during Operation Fast and Furious< Agents disagree with (his definition, 

acknowledging that hundreds or possibly thousands of glUlS were in fact walked < DOl's 

misplaced reliance 011 this definition does not change the fact that it knew that A IF could 

have interdicted thousands of guns that were being trafficked to MexicQ, yet chose to do 

nothing< 

» AIF agents complained aboul the strategy of allowing guns to walk in Operation Fast 

and furious. Leadership ignored their concerns< Instead, supervisors told the agents to 

"get with the program" because senior A IF of±1cials had sanctioned the operation< 

.... Agents knew that given the large numbers of weapons being tratTickcd to Mexico, tragic 

results were a ncar certainty< 

;.. Agents expected to interdict weapons, yet were told to stand down and "just surveiL" 

Agents therefore did not act They watched straw purchasers buy hundreds of weapons 

illegally and transfer t.hose weapons to unknown third parties and stash houses< 

;.. Operation Fast and Furious contributed to the increasing violence and deaths in Mexico< 

This result was regarded with giddy optimism by ATF supervisors hoping that guns 

recovered at crime scenes in Mexico would provide the nexus to straw purchasers in 

Phoenix< 

;.. Every time a Jaw enforcement otricial in Arizona was assaulted or shot by a firearm, A TF 

agents in Group VII had great anxiety that guns used to perpetrate the crimes may trace 

back to Operation Fast and Furious< 

;.. Jaime Avila was entered as a suspect in the investigation by ATF on November 25,2009, 

after purcha;;ing weapons alongside Uricl Patino, who had been identified as a snspect in 

October 200'1< Over the next month and a half, Avila purchased 13 more weapons, each 

recorded by the ATF in its database within days of the purehase< Then on January 16, 

2010, Avila purchased three AK-47 style rifles, two of which ended up being found at the 

murder scene of U $< Border Patrol Agent Brian Terry< The death of Border Agent Brian 

I ~rry was 1 ikely a preventable tragedy< 

Page 19 
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» Phoenix ATF Special Agent in Charge (SAC) William Newell's statement that the 

indictments represent the take-down of a firearms trafficking ring from top to bottom, and 

his statement that ATF never allowed guns to walk are incredible, false, and a source of 

much frustration to the agents, 

:» Despite mounting evidence to the contrary, DO] continues to deny that Operation Fast 

and Fw'ious was ill-conceived and had deadly consequences, 

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IV. The ATF Policy on Gun Interdiction: "You Don't Get to Go 

Home" 

A TF's long-standing policy has been not to knowingly allow guns to "walk" into the 

hands of criminals. Yet DOJ and A TF used a 19H9 A TF order to help justi fy allowing straw 

purchasers allegedly connected to Mexican drug cartels to illegally buy more than 1,800 

weapons during Operation Fast and Furious. While this Order pemlits agents-at their 

discretioll-to allow the illegal transfer of fireanns to further an investigation, it does not go so 

far as to pennit them to pull surveillance completely and allow the guns to walk. 

A. The Justification for Operation Fast and Furious 

FIl'IDli\'G: DOl and ATF inappropriately and recklessly relied on a 20-ycar old 

A IF Order to allow gllns to wall .. DOJ and ATF knew from an earl)' 

date that gullS were being trafficked til the DIOs. 

Released on febmary 8, 1989, ATF Order 3310.4(b) explains ATF's Firearms 

Enforcement Program. The Department of Justice and A TF relied on this Order to defend 

Operation Fast and Furiolls. A TF leadership in Phoenix believed a specific clause within the 

Order, section 148(a)(2), justiHed Operatioll Fast and Furious and its policy 10 allow guns to 

walk. The clause reads as follows: 

148. "WEAPONS TRANSFERS" 

a. Consideratiolls. During the course of illegal firearms trafficking 

investigations, special agents may become aware of, observe. or 

encounter situations where an individua!(s) will take delivery of 

fircamls, or transfer fireann(s) to others. In these instances, the special 

agent may exercise the following options: 

* * * 

(2) In other cases, immediate intervention may not be needed or 

desirable, and the special agent may choose to allow the transfer of 

±lrearms to take place in order to further an investigation and allow 

for the identification of additional coconspirators who would have 

continued to operate and illegally traffic firearms in the future, 

potentially producing more armed crime.] 

I BUREAU OF ALCOHOL, TOBACCO. FIREARMS AND EXPLOSIVES ORDER 3310.4(b) 148(0)(2) (Pcb, 8, 

1989) (emphasis added). 

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74504D3-12.eps

A TF's reliance on this section of the Order is misguided. The phrase "immediate 

intervention may not be needed or desirable" does not justify a complete lack of intervention 

with regard to thousands of weapons illegally purchased by straw buyers allegedly linked 10 drug 

cartels. A TF cited this Order in an carly briefing paper that contained the following paragraph: 

Currently our strategy is to allow the tran~fer of firearms to continue to 

lake place, albeit at a much slower pace, in order to further the 

investigation and allow for the identification of co-conspirators who 

would continue to operate and illegal(y traffic firearms to Mexican D TOs 

which are perpetrating anned violence along the Southwest Border. This 

is all in compliance with ATF 331O.4(b) 148(a)(2). It should be noted that 

since early December efforts to "slow down" the paee of these firearms 

purchases have succeeded [md will continue but not to the detriment of 

the larger goal of the im'estigation. It should also be noted that the pace 

of firearms procurement by this straw purchasing group from late 

September to carly December, 2009 detled the "norma1" pace of 

procurement by other tlrearms traffickin g groups investigated J:l'y this and 

other field divisions. This "blitz" was extremely out of the ordinary and 

created a situation where measures had to be enacted in order to slow this 

pace down in order to perfect a criminal casc. 2 

This statement leaves little doubt that ATF felt Operation Fast and Furious was compliant 

with existing ATF policy. Further, it shows that DOJ and ATF knew from an early date that the 

firearms were being illegally trafficked to Mexican drug cartels. 

Although senior ATF management cited the Order as justification for Fast and Furious, it 

did not pass muster with street agents. They believed that it did not pem1i! a total lack of 

intervention. Agents believed they must inlerdict at some point if they have knowledge of an illegal 

firearms transier. Yet senior management used the Order to j uslify the notion that A TF would 

completely drop surveillance ofthe weapons and then wait until receiving trace requests when the 

weapons were eventually recovered at crime scenes. Such traces would supposedly create a "nexus" 

between the drug cartels and the straw purchasers. The agents, however, did not agree with any 

interpretation of the order t.1J.at would he consistent with that kind of strategy. 

As Special Agent John Dodson testified: 

Q< And just so we are clear on what your understanding of the order 

was, and we can all obtain it and read it and have our own 

understanding of it, but what were you taught about what that 

means? 

A. That that implies when the straw purchaser makes the purchase at 

the counter, you don't have to land on them right there at the 

counter or as soon as he walles out the door, that it is okay to allow 

it to happen, to allow him to go with that gun under your 

2 Briefing Paper, ATF Phoenix Field DiviSiOn, Group VII (J,m. 8. 20] 0) (emphasis addedl~ 

Page 112 
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74504D3-13.eps

surveillance 10 the ultimate purchaser of it or whom be is 

delivering it to, or if he is taking it to a gang or a stash house or 

whomever, it is okay to allow it to happen, to go there, to be 

deliwred. But you dOli 'I get to go home. You get the gun, is my 

understanding, what 1 have been taught and how in every other 

ATF otlice not only that I have been in but that J have gone like 

TDY to work at that that policy is implemented. 

Q. So, in other words, your understanding is that there is a temporal or 

time limitation on how long it can be allowed to continue on its 

course without you intervening. 

A. I think it is not so much time as it is availability of eyes on. Like if 

I get an agent that's on the house and we know that gun iii on the 

house, thai's still okay ... even if it is overnight, on to the next 

night, the gun and bad guy are still there. '0/c are just waiting on 

the guy he is supposed to deliver it to to come by and pick it up. 

Q. Well, the beginning of it said in other cases immediate intervention 

may not be needed or desirable. 

A Correct. 

Q. So are you saying that, in other words, "intervention," that doesn't 

mean, "no intervention cvcr?'~ 

A. Correct. 

Q. Just the intervention doesn't have to happen right now, bllt 

intervention does need to occur, that's your understanding? 

A, Yes, sir, that it is not as soon as the FfL hands the straw purchaser 

the gun, that's it, you can't let him leave the store with it. 

Q. It is not a license to forego intervention at all? 

A. COiTect3 

During Operation Fast and Furious, however, ATF agents did go home. They did not 

get the guns. A TF simply broke off slUV'cillance of the weapons. Yet, as Agent Dodson explains 

it, the Order used to justifY that practice actually anticipates interdiction at some point. It docs 

not authorize what occurred under Fast and Furious: 

3 Transcribed Interview of ATF 

author) 

Dodson, Transcript at 121-123 (Apri126, 2011) (on file with 

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74504D3-14.eps

More so, that line that says the agent has 1he discretion to allow the 

purchaser not - or the purchase to proceed or not, what it is trying 

to tel] you is you don't have to effect the arrest or the interdiction 

right there in the store, It is telling you that you can allow it to 

happen until that guy leaves the store and meets with the person 

that he bought the gun for, then you can effect the 3!Tesi. It is nol 

telling you that you can watch this guy purchase thousands of 

firearms over 18 months and nOI do any follow-up on iet 

B. Trained to Interdict 

FINDI;'I!G: A TF agents arc trained to "follow the gun" and iuterdict weapons 

whenever possible. Operatioll Fast alld Furious required agents to 

abandon this trailling. 

Interdiction v. Prosecution: Prior to their assignment with Operation Fast and Furious, ATF 

agents were trained to interdict guns and prevent criminals from obtaining them. Interdiction can 

be accomplished in many ways, While prosecutors focus 011 gathering proof "beyond a 

reasonable doubt" to be presented at trial, agents begin with a standard of "reasonable 

suspicion," If an agent can articulate a reasonable basis to suspect an illegal purchase, then the 

agent can take proactive steps to investigate, potentially develop probable cause to arrest, or 

prevent the illegal transfer offireanns some other way. From the agents' point of view, a 

prosecution isn't necessary in order to achieve the goal of preventing criminals from obtaining 

fireamls, An arrest may not even be necessary, In fact, another portion ofthe ATf Order 

describes some of these other interdiction strategies: 

b, Alternative Intervention Methods, In thc evcn! it is determined by the 

special agent that a weapons transfer should nol take place, the special 

agent may consider alternative methods of intervention other 111an 

arrest and/or search walTanls thai will prevent the culmination of the 

weapons transfer but allow the inl'e,~tjgation to continue undetected, 

These alternative methods are considered to be a course of action that 

must be approved by the RAC/GS or SAC as previously noted, These 

alternative interventions may include, but are no! limited to: 

(J) A traffic stop (supported by probable cause to search or supported 

by a traffic violation allowing for plain view observations) by a 

State or local marked law enforcement vehicle that would 

culminate in the discovery and retention of the firearms, This 

would prevent the weapons transfer from fully occurring and 

may in turn produce new im'estigatil'e leads, Should the 

occupants of the vehicle be new/unknown participants in the 

organization under investigation, they may be fully identified 

4 Agent Dodson Transcript, at 84, 

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74504D3-15.eps

which in tum will yield additional infoffi1ation for follow-up 

investigation. Should the occupants of the yehide be known 

participants ill the investigation, requesting telephone tolls for 

these individuals (or if a Penn Register/T-III interception order is 

in use) for the period shOltly after the trame stop may show calls 

and yield identifying infonnation relating to the intended receivers 

oftha firearms. 5 

Three oHhe special agents assigned to this operation had more than 50 years oflaw 

enforcement experience. Throughout their careers, A TF always taught them to get the guns 

away from criminals. When they observed signs of suspicious transactions, agents looked for 

ways to prevent wcapons from falling into the wrong hands. Agent Dodson testitled: 

I can tell you this. We knew without a doubt at myoid field 

division when someone had a case that said, hey, Ihis guy is 

supposed to be a straw and he is going to make this deal today, if 

he makes the deal, we were talking to them. I mean if we all left 

the office on an op for a sllspected straw purchaser, that means we 

had, we suspected him of being a straw purchaser. Well, when he 

purchases, that adds to the suspicion. So he was getting talked to, 

either "knock and talk" or, depending on what happened or what 

he purchased might alter things and we might get to a higher level . 

. . that reasonable suspicion or prohable cause. But we were 

doing something. If nothing else we were putting him on uotice 

that we were watching him, all right, and that every time he 

went to the gun store, we were going to he there with him, or 

the minute one (If those guns turned up in II crime somewhere, 

we were coming back to talk to him, or even better, or maybe not 

better, but some point down the road we might be back to knoek on 

your door and ask you, still got lhose guns or are you selling 

without a license, you better have a receipt or something to go with 

them to prove your point. 

The bottom linc, sir, whenever a walk situation with a gun 

OCCUlTed. . nobody went home until we jOllnd it, until we got it 

back. There were no ifs, ands or buts, you didn't ask. Nobody 

said, "I got to make a soccer game," [orJ "I have got to pick my 

dog up," nothing. Okay. If somebody said, "where is the gun," 

you knew it was an all-nighter until we found it." 

Fast and Furious employed tlle exact opposite practices. ATF agents rarely talked wilh 

straw purchasers, or conducted a "knock and talk." When guns recovered at crime scenes linked 

hack to straw purchasers, A TF agents did not approach these straw purchasers. Agents did not 

l BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES ORDER 331O.4(b) 148(b)(1) (Feb. 8, 

1989) (emphasis added). 

G Agent Dodson Transcript, at 60-61. 

Page I 15 
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74504D3-16.eps

ask them why did they did nol still possess guns they had recently sworn on a federal fonn were 

fOf their personal use. Instead, A TF agents stood by and watched for months as the straw 

purchasers bought hundreds upon hundreds of addilional AK-47 variants and BalTe(( ,50 caliber 

sniper rines. ATF failed to conduct proper surveillance of the walked guns. ATF leadership in 

Phoenix cannot account for the location of the walked guns until they tum up at a crime scene, 

which may be after they have been used to kill or maim innocent victims on both sides of the 

border. Untold numbers of these weapons likely reached the OTOs in Mexico. 

To the extent that these walked weapons reached the DTOs, it is a direct result of the 

policy decision to no longer focus 011 interdicting weapons as soon as possible. From the agents' 

perspective, that decision was the polar opposite oftheir understanding ofthe previous policy. 

For example, Special Agent OUndo Casa testified: 

Q. And if you became aware that somebody purchased gUllS with the 

iniel1t of transferring it to a third person, would it be your practice 

and experience to interdict those weapons right away? 

A. Yes, yes. 

Q. Is that your understanding of ATF policy? 

However, under Fast and Furious in Phoenix, agents did not follow these methods. As 

Special Agent Lawrence AI! testified: 

Q. [I]s it fair to say that if you saw a suspect, a suspicious person.', 

leaving an FFL with ... an armful of boxes that appeared to be 

AK-47s or like weapons, that in your experience as an agent, I 

mean, would you be able to interdict thal? 

A That would be my normal course of action. I tmdcrstand there is 

other strategies wherein you are trying to identify where those 

fireanTIs are going to. So you might not interdict them until they 

arc delivered, or if you have investigative measures in place to 

follow them, you might let them go to ... what you believe is their 

ultimate destination, 

Bill prior to my coming 10 Phoenix, Arizona, I had never 

witne,ssed a firearm not - I never witnessed a .~ituation where 

there wasn'l at least an attempt to interdict or take the firearm at 

some point, 

7 Transcribed. Interview of ATF 

author) 

.Jumes Casa Transcript, at lS (April2S, 2011) (on me wilh 

Page 116 
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74504D3-17.eps

Q. l Yjou might allow the suspicious person to leave the FFL with a 

car full of weapons, you might make a decision not to do a traffic 

stop right then, but is it fair to say that you would want to follow 

that suspecU 

A. I have had experiences or bccn aware and involved either directly 

or indirectly in experiences where we knew there was illegal 

fireanns purchases. Follow the gun was also the mollo. follow the 

gun, stay with the gun. 

I am aware of a couple of instances in my past where people would 

sit on houses all night long, days on end, waiting for the guns to go 

so that they could then follow it, satisfy the requirements of the 

investigation.. . But I have never bcen involved in a situation 

where you would simply not do anything8 

This changed when the Agent All arrived in Phoenix. 

Agent Casa recounted a similar situation. He had also never heard of, nor seen, guns 

being allowed to walk until he got to Phoenix: 

.... But from the time I started as an ATF special agent ... up 

until the time I got to Phoenix, that was my understanding, that we 

do not let guns walk, absolute(y, positil'ely nol. And if we - if 

ever a case [where 1 we would do that, there hetter be a really good 

explanation why we did not grab that gun when we could. 

Q. But that changed when you came to Phoenix, I mean the practice at 

least changed, correct? 

A. Yes. 

Q. So that occurred while you were here? 

ATF policy is clear and unambiguous. As Agent Casa further explained: 

Q. So could you - are you saying if you determine that somebody has 

acquired a firearm unlawfullyA. Correct. 

0P"Cl<IJ.",g"'llC l~il".lr",ICC Alt, Tf'lllSCript at 37-39 (April 27, 2(11) (on file with 

author) rhcreillRft.er.A.""lltAll 

9 Agent 

Page i 17 
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74504D3-18.eps

Q. - AIF's policies and procedures would be to interdict that 

weapon? 

A. Yes. Yes. 10 

Agent Dodson said it succinctly; 

So my training and experience with ATF as well as with law 

enforcement prior to then essentially [s you interdicted a gun 

whenever you could. Guns didn 'f go. 11 

A third agent, Special Agent Peter Forcelli, spoke of the importance of inter dieting these 

weapons: 

Q. Did you have any kind of policy regarding gun trafficking, in other 

words. . was your policy to interdict guns whenever possible? 

A. Absolutely. 12 

Every single agent on every single prior assignment adhered to a policy to interdict weapons as 

soon as possible, until Fast and Furious. As one agent put it, "It's like they grabbed the A TF 

rulebook and threw i( out the window.,,13 

V. Defined: U's Semantics 

FINDING: DOJ relies on a narrow, untenahle definition of gunwalking to claim 

that guns were never walked during Operation Fast and Furiolls. 

Agents disagree with this definition, acknowledging that hundreds or 

possibly thousands of gnns were in fact walked. DOJ'8 misplaced 

reliance on this definition does not change the fact that it knew that 

ATi' cOlild have interdicted thousands of gllns that were being 

trafficked to Mexico, yet chose to do nothing, 

The Department of Justice has repeatedly and steadfastly denied that any guns were 

walked under Operation Fast and Furious. According to the nan-owes! possible interpretation, a 

gun is walked only when an ATr agent physically places an AK-47 into the hands of a straw 

purchaser and then lets th~t straw purchaser walk out of sight. Conversely, evcry single AIF 

field agent interviewed stated that guns are walked when A TF has the opportunity (0 interdict 

illegally purchased weapons, yet chooses not to even try. 

i;~~;~;:~~~:~i~~~l~~~~;~:~~I;~;'~P~'~'i;",H"cm Peter l'orce1Ii. Transcript, at 25 (April 28, 201]) (on file with author) 

Page 118 
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74504D3-19.eps

DOJ officials must have known that straw purchasers were buying guns illegally and 

transferring them (0 third parties for trafficking across the border. This was clear, or at least 

should have been clear, from the following factors: 

(I) the sheer volume and frequency of the purchases, 

(2) ATF's and DOl's communications with the cooperating gun dealers, 

(3) the contemporancous notice dealers provided about hundreds of transactions with 

straw purchasers, and 

(4) notifications through the Suspect Gun Database that the firearms were being 

recovered in crime scenes in Mexico shortly after being purchased. 

Y ct, A TF failed to use this information to interdict future purchases and prevent guns 

from crossing the bonier, 

Instead, ATF followed Dors new policy, and focused on simply trying to identify more 

and more members of the trafficking ring. It was a conscious decision to systematically avoid 

interdicting guns that normally should have been interdicted, according to the agents. Thus, the 

agents considered it to be gunwalking. Agent Dodson testified: 

My understanding of letting something walk or defining walk is, 

when it was in or could have been in and quite possibly should 

have been in law enforcement custody, a decision is made, a 

conscious decision is made to not take it into custody or to release 

it Then it is walked .... [Y]ou are talking about walking d0pe, 

walking money, walking anything else. To walk a firearm was 

ncvcr taught. It was what we consider a no-brainer. 14 

As the agent explained, ATF did not teach agents to walk firearms as such a practice was 

beyond comprehension. Agent Casa provided a similar understanding of gunwalking: 

Now, when 1 talk about walking guns, my understanding is that is 

whcn a person we suspect or havc probable cause that a person 

illegally came ac.wss gUllS, whatever way they caIne across it, and 

we have knowledge of it and we are there and we do not interdict 

those guns, we do not take those guns, we do not do any 

warrantless seizure based on probable cause or those gmls. That 

would be my understanding of Jetting guns walk. 15 

Agent Forcelli defined gun walking as follows: 

.... Tfyou can interdict it and you don't, in my opinion you have 

walked it. There are times ... we do a car slop, the person maybe 

[., Agent Dodson Transcript, at 18-19, 

\5 Agent Cmm Transcdpt, at 17. 

Page! 19 
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74504D3-20.eps

bought two guns, they would have a story that was reasonable. 

They had a pay stub ... that indicated they had a salary Of they had 

a - they can articulate why they bought it. A couple times it 

happened. Like I said, maybe twice they went on their way. 

Okay. 

But again. , . walking guns, in my opinion, is if you can stop it and 

you don't, There are some whose definition is if ATF has the gun 

and gives it, then we are walking it. 16 

Agent Alt also acknowledged two definitions of gun walking; 

So I call that the two versions of walking a gun, There is, it is a 

semantics issue. Some people will say that only the purest 

definition is walking a gun. Some people won't acknowledge that 

the other version is walking a gun. And I say potato, you say 

potato, I believe it is, my assessment, they are the same. That's 

it. 17 

Regardless of which detlnition one subscribes to, the two situations both warrant action. 

Still, DOJ and some senior ATF oflicials maintain that federal agents did not sanction or 

knowingly allow the transfer of firearms to straw purchasers. Yet, the evidence demonstrates 

that DO] and A TF were well aware of what was happening. 

Phoenix Field Division leadership did not tolerate debate or dissent from agenls over 

terminology or strategy. Agent Dodson testified; 

Q. I believe you mentioned that there \vas some dispute about exactly 

what gun walking meant. 

* • * 

And can you describe what the difference was, difference of 

opinion was? 

A. Well, yes, sir.. . Again, as I said earlier, my understanding of gun 

walking. . has been something was and/or should have been, 

could have been in law enforcemenl custody. \Vhen we should 

have done something and it wasn't, you have lei it walk. 

There has to be un active decision .. , a choice is made to allow it 

to walk. It is not like something got away from you or you lost it. 

If a suspect beats you in a foot chase and he gets ~way, you didn't 

let him walk, you just lost the chase, So that's what walking is. 

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When [the Assistant Special Agent in Charge] came down to our 

office. we were told you don't know what walking is, we are 

not walking guns. And that's pretty much the extent of the debate, 

because in Phoenix there is very little debating one of the ASACs 

or the [Special Assistant in Charge l So it was ... a declaration, 

you don't know what walking guns is, we are not walking guns, 

this is all okay. 1M 

Regardless of whether it meets a technical definition of gunwalking, the strategy was 

clearly ill-conceived. Instead of candidly acknowledging the facts and working to correct the 

problem, DOJ has withheld critical information from Congress and 11lC public, obfuscating the 

issue. 

VI. Concerns about Gunwalking: "What the Hell is the Purpose 

of This?" 

A TF special agents in Group VII expresseu many concerns about the strategies employed 

during Fast and Furious. None of the agents had ever before aHowcd a gun to "walk." None of 

the agents had even heard of allowing a gUll to be "walked." The ATF acaucmy does not teach 

agents to walk weapons, and lhc practice is abhOlTent. Yet, in lhis operation, veteran ATF agents 

acted against their training and well-established ATF practice in allowing guns to walk right out 

of their sight. In spite ofthe agents' frustration and dismay, ATF leadership from Phoenix to 

Washington renlsed to acknowledge the validity oftheir concerns. 

A. Concerns Fall on Deaf Ears and Meet Resistance 

FINDING: ATF agents complained about the strategy of allowing guns to walk in 

Operation Fast and Furious, I,ealiersilip ignored their concerns. 

Instead, supervisors told the agents to "get with the program" because 

senior A'fF officials had sanctioned the operation. 

Wben agents learned that the tactics used in Fast and Furious required gUlls to be walked, 

many veteran special agents criticized and rebelled against the policy. These agents felt 

hamstrung, given that thcy could not use the training they had received throughout their careers. 

As Agent Dodson testified: 

Q. Based on our training and experience, what did you think about 

[walking guns]? 

A. It was something I had never done before, sir. And quite frankly, I 

took great issue with it and concern. I felt like T understand the 

Agent Dodson Transcript, at 90-92. 

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74504D3-22.eps

importance of going after the bigger target, but there i~ a way to do 

thaI, We did it successfully in the dope world all the time. And 

those skills and practices that we used there, a lot of them transfer 

over, and more than applicable in gun trafficking investigations, 

but we wercn't allowed to use any of them. 

Q. And did you ever have a recollection of sharing your frustration 

with Special Agent Cas a? 

A. Oh, yes, sir. 

Q. And any other special agents that you canA. Yes, sir. 

Q. And maybe you could just tell us what other agents you -

A. Pretty much everyone, sir. It was, I shared my reservations and concerns 

with Special Agent [LJ, with Dave Voth, with Special Agent [DJ Special 

Agent [HJ, Special Agent Alt, Special Agent [Pl, several of the special 

agents that came on the GRIT, G-R-I-T. The gunrunner initiative is what 

it stands for. I shared them wilh or I voiced my concerns to other agents 

inside the Phoenix field division that was on other groupS.19 

Agents felt compelled to speak up within days after joining Group VII. Agents 

complained to their superiors, to no avail. The agents, new to Phoenix, had 10 comply: 

Q, So the special agents in Group 7 objected to this amongst themselves. 

And at what point did feedback statt to get communicated up the chain, 

whether it was to the case agent, Special Agent [LJ, or Group Supervisor 

Voth? 

A. Oh, it was almost immediately before we had ... Special Agent Casa and I 

had taken it up with Special Agent [L], Special Agent [DJ, and as well as 

Group Supervisor Voth. 21J 

Having launched an iImovative strategic plan, ATF scnior leadership at Phoenix was 

excited at the prospect of a new way of combating dmg cartel activity. ATF and DOJ leadership 

both approved of this plan. As such, A TF Phoenix leadership were loathe to let disgnmtlcd field 

agents scuttle their signature achievement 1n this matter, a great divide developed between 

those who knew walking guns was a had policy and vehemently spoke out against it, and those 

who believed walking guns was an effective policy. 

19 Agent Dodsc,n 

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A widely discussed e-mail from Group Vll Supervisor David Voth best summarizes the 

divide that had emerged in Group VII, with senior special agents on one side, wanting to stop the 

operation, and those in the ATF chain of command on the oilier, wanting to continue the gnn 

walking:2: 

--------~,~~-.. -~-.-~ .. _----, It has been brought to my attention that there may be a schism developing amongst the group. This Is the time we all 

need to pull together not drift aport. We are all entitled to our respective (albeit different) opinions however we all 

need to gel along and realize Ihat we have a mission to accomplish. 

I am tllriiled ncd proud that Qur Group is the first ATF Southwest Border Group In the country to be going up on wire. 

On that note I thank everyone forthei' efforts thus far and applaud the resu:t, we have achieved In" short amount of 

time. 

Whether you care or not people of rank and authority at HQ are paVing close attention to this case and they also believe 

we (PhClenix Group VII) are doing what they envisioned the Southwest Border Groups doing. It may sound cheesy but 

we are "The tip oflhe ATF speat" when it comes to Southwest Border Firearms Trafficking. 

We ne"" 10 re,olve our issues at this meeting. I will be damned if this case is going to suffer due to petty argUing, 

rumors or other adolescent behavior. 

I don't know what all the issues ate but we :are all adults; we are all profes'.i!onalsr and we have B exclting opportun!tv to 

use tho bigsest too: in our law enfon:ernenttool box, If you da"~tthil1kthi.s is fun you're in the wrong Ilne of workperiodl This is the pinnacle of domestic U.S, law enforcement techniques, Aiter this the tool box Is empty. IVI.yb. the 

Maricopa County Jali is hiring detention officers and you can get paid $30,000 \Instead of $100,Goo) to serve IU.l1eh to 

Inmates all 

Despite this e-mail, agents continued to experience dismay and frustration as Operation 

Fast and Furious continued along its perilous path. As Agent Casa testitied: 

Q. And is it fair to say that, , , thc folks on your side of thc schism 

wanted to do everything they could to interdict these weapons so 

they wouldn't get any farther down the street than they have to'? 

A, Yes, sir. We were all sick to death when we realized that - when 

we realized what was going on or when we saw what was going on 

by the trends. We were alljusl, yes, we were all distraught,22 

The rift widened when the Assistant Special Agent in Charge (ASAC) authoritatively and 

unambiguously told Group VII that guns werc not being walked, that the special agents were 

incorrect in their terminology, and that there would be no more discussion or dissension about 

this topic. Agent Dodson testified: 

A. Then we get an e-mail that. , , there is going to be a meeting. [the 

ASAC] is coming down, [the ASAC] comes into the Group 7 

offlce and tells us essentially we better stand down with our 

complaints, that we didn't know what the definition of walking 

21 Email from Group Vll Supervisor David Voth to Phoenix C'n-oup VII (Mar. 12,2010). 

Agent Casa Transcript, at 41. 

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74504D3-24.eps

gUllS was, we weren't familiar with the Phoenix way of doing 

things, that all of this wa,' sanctioned and we just needed to 

essentially shut up and get in line, That's nol a quote, but that's 

the feel of the meeting, so , , ' 

Q, Do you remember approximately when that occUlTed? 

A, It was right after we wenl to the Group 7 building, so it had to be 

late Fehruary, early March 201023 

Even some - outside Group VII - with reservations about the practice, indicated that they 

gave them the benefit ofthc doubt because the case was being supervised by the U,S, Attorney's 

office, Agent Forcelli testified: 

And I cxpressed concern, , , about that And I believe some of 

those guns were purchased historically, It wasn't like 1200 were 

watched to go, but apparently they weren't interdicting either, And 

his response was if you or I were running the group " it 

wouldn't be going down that way and that the U.S. Attorney is on 

board, and it was Mr. IEmory] Hurley, and they say there is 

nothing illegal going on. 24 

B. Tragic, Yet Foreseeable Results 

FINDING: Agents knew that given the large numbers of weapons beillg 

trafficked to Ml~xico, tragic results were a Ilear certainty. 

Sine~ Group VII agents were instructed not to interdict as early and as often as they 

believed they should, the agents quickly grasped the likelihood of tragic results, Agent AI! 

testified: 

Q, At any point in time did you have communications that, , , this is 

going to end terribly, there is going to be deaths? 

A 1 know that was talked about, , , the probability of a bad situation 

arises with the number each - as the number of firearms increases, 

meaning firearms that are out and outside of our control in this 

Cllvironment with this type of a case, which we are talking about a 

firearms trafficking case, southwest border fire ann tratlicking 

case, J only hope the case agent knows where they arc going, But 

they are out there and they are not accounted for by us, at least that 

T am aware of, So there is certainly a greater probability and a 

greater liability, 

.144, 

Ag,ontFOl,celli 1'raIl.scripl at :<6, 

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74504D3-25.eps

I can tell you that as early as June of last year I predicted to some 

of my peers in the offic~ that we would he sitting right where we 

are today in th is room, 

Q, Speaking with Congressional investigators? 

A, ThaI this would be in front of a Congressional investigation, And I 

was in agreement with Agent Dodson that someone was going to 

die, And my observations in the office were there was an 

overwhelming concern, even amongst those persons on the other 

side of the schism, if I can use that tenn, that something bad was 

going to happen, 

* * * 

Q, And is it fair to say that anxiety is heightened because of the 

possibility of some of these guns getting into the hands of 

criminals and being used against your fellow law enforcement 

agents? 

A Yes, And it is not even the possibility, because we know that they 

were procured unlawfully, So if we know that from the begilming, 

they are already in the hands of criminals, so now we are simply 

dealing with what is the consequence ofthat25 

The most frustrating aspect ofthe gun walking policy for the agents was that they 

believed they could have interdicted and stopped the guns from walking, 

When agents arrived in Phoenix in December 2009, Ihey believed there was already 

enough information to arrest the straw purchasers, try (0 flip them, and begin working up the 

chain with an eye toward "bigger fish" in the organization, Yet, the fall of 2009 brought a 

remarkable departure irom the nonnal practice of interdiction, ATF's strategy explicitly stated 

thal it would allow straw purchasers to buy weapons, and that's exactly what happened, Agent 

Dodson testified: 

Q With the new resources in Group 7 in the fall of '09 , , , you talked 

about some of the special agents that were joined, if all of you had 

interdicted the weapons as you saw them, what percentage do you 

think you could have prevented from sort of entering the stream, 

, if you read the press accounts of this, it is somewhere along the 

lines of 2,000 fireanns have disappeared, How many do you tbink 

you and your colleagues would bave been successful to interdict? 

Is it 10 percenl, 50 percent? 

25 Agent AltTranscripl, ~t 120-122, 

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74504D3-26.eps

A. Well, the question is kind implausible, sir, .. When we hit the 

grmmd in Phoenix, say, and the original 40 straw purchasers were 

identified, and I can't remember if it is 240 or 270 guns that they 

knew al that point that these guys were responsible for, you lake, 

you minus that 270 from the estimate of 2,000, and whatever you 

have left is what we could have prevented. 

Because we should have landed on every one of those people the 

minute that we hit here. And the ones that we landed on that we 

couldn't make cases on, at least they would have been on notice 

that we were watching and they would have stopped buying, or 

every time they did, the flag went up and we could have been on 

them then. 

And of all the ones that we didn't land on, several of them would 

have spoken to us, a couplc of them even maybe would have 

worked for us as a confidential informant or sources, which is how 

you climh Ihe ladder in an investigation into an organization. 

Sitting back and watching isn't it. Okay? If you are watching a 

TV show at that point of the wire, you are not doing your job. 

Your job is to get out here and make a difference. Aud we could 

have done it when we hit the ground. So what arc we talking? 

173(J, to answer your question, is my opinion of how many of 

these fircam1s that we could have and should have prevented from 

ever being purchased by these individuals and subsequently 

trafficked to known criminals or cartel clements south of the 

border and elsewhere. 

Q, And is it tilir to say if you starled stopping these straw buyers as 

soon as they left [the gUll dealers], is it fair to say that perhaps the 

dmg trafficking organizations that they worked for would realize 

wc got to get out of Phoenix, we have got to go to Dallas, we have 

got to go somewhere else, because Phoenix now has these new 

resources and they are catching us? 

A. Right, if nol, come up with an entirely new altel'l1ative way to get 

their weapons. If we shut down the whole straw purchasing 

scenario here in Phoenix, or significantly hurt it to the point where 

it is not advantageous for them to do so, you figure, if they arc 

paying S600 for an AK or AK variant, all right, for everyone that 

they buy we are taking off ten of them, okay, that's, 1 mean in any 

business sense that's not a good idea. Ultimately you are paying 

$6600 for one AK at that point. Am I correct? 26 

26 Agent Dodson Transcript, at 61-63. 

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Unfortnnately, the agents' complaints fell on deaf ears, As one ASAC noted, the policy 

and Opl'ration had been sanctioned, For many of the agents, the operation only fueled their 

outrage, According to the agents, the operation failed to use their investigative strengths, honed 

over dozens of years in law enforcement, Agents saw the whole operation as pointless, a poor 

way to operate, and above all, dangerous, Agent Dodson testified: 

Q, Can you be more specific abont the instances in which you were 

told not (0 usc those techniques? 

A Oh, certainly, Well, every time we voiced concerns, every time we 

asked the question, And this is so hard to convey because T 

understand you guys weren't there, you didn't live it. But every 

day being out here watching a guy go into the same gun store 

buying another J 5 or 20 AK-47s or variants or, , , five or ten 

Draco pistols or FN Five-seveNs, guys that don't have ajob, 

and he is walking in here spending $27,000 for three Barrett ,50 

calibers at , , , walks in with his little bag going in there to buy it, 

and you are sitting there every day and you can't do anything, you 

have this conversation every day, 

You asked me "a specific time where you voiced where you 

wanl to do this, Every day, all right? It was like are we taking this 

guy? Ko, Why not? Because it is not part of the plan, or it is not 

part ofthc case, [Agent L] said no, Dave said no, [Agent E] said 

no, What are we doing here? I don '/ know. What the hell is the 

pllrpose a/this? I have 110 idea, This went on every day.27 

DOJ and ATF determined that the goal of making the big case was worth the risk of 

letting hundreds and hundreds of guns go to criminals in the process, This conclusion was 

unacceptable to thc agents on the ground carrying out these direct orders, The agents knew they 

were facilitating the sale of AK-47 variants to straw purchasers. Supervisors ignored complaints 

and retaliated against agents who did complain by transterring them out of ATF Phoenix Group 

VII, As Agent Dodson recalled: 

Q, [A]t any point in time do you have a recollection of commiscrating 

with your colleagues, whether it \vas Special Agent Casa, whether 

it was Special Agent Alt, or some of the other special agents that 

were on sort of your side of the schism, tor lack of a better word? 

Do you ever recall saying, , , good grief, if we had just snatched 

these gUllS at the fFLs we wouldn't even be in this situation'! 

A. Oh, yes, sir, and not only wiih people on my side of the schism, 

mean this was why I was, I mean I guess we will get to this later, 

hut why I am no longer in Group 7, is because I addressed it with, 

or primarily with those on the other side ofthe schism, 

27 Agent Dodson Transcript, at 113, 

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74504D3-28.eps

* •• 

Q. And is it fair to say at this point you are outraged'? 

A. Outraged and disgusted, however else you want to look at it. 

Q. And is it fair to say that part of your outrage is because 

needless deaths are possibly occurring? 

A. Oh, very much so, sir. 

Q. That countless number of crimes are being perpetrated with these 

weapons that you and your colleagues lIlay have facilitatedA. Yes. 23 

C. Catastrophe Becomes Reality 

This agent's fear and outrage were realized by the death of Border Patrol Agent Brian 

Terry, a member oflhe U.S. Border Patrol Tactical Unit, as well as the almost certain deaths of 

countless Mexican citizens killed and the unknown amount of other crimes with weapons 

stemming from Fast and Furious. In Fast and Furious, ATF wanted to design a unique way to 

pursue tbe drug cartels. ATF and DOJ failed spectacularly to consider resnlting negative 

outcomes. As Agent Dodson noted: 

VII. 

Well, sir, if I may, and first of all, please everyone understand, I 

am not on either, or either side of this political spectrum, nor do I 

want to he. And quite frankly, it is unfathomable to me how both 

sides or any person isn't completely livid about what we have been 

doing here. I cannot see anyolle who hllS one iota of concern for 

human life being okay with this, and being willing to make this 

go away or not' hold the people that made these decisions 

accountable. I don't nnderstand it. And again, none of you owe 

me an explanation, that's just my personal 0pinion29 

"We Did Not Them." 

Fast and Furious required agents to stand down, ignoring their training and professional 

instincts. Allowing guns to fall into the hands ofthc DIOs was the Operation's central goal. 

Even when agents were able to interdict weapons, they received orders to stand down. 

at 57-58. 

at IOL 

Pl1gc i 2:5 
399 


74504D3-29.eps

A. Watching Guns Walk 

FINDING: Agents expected to interdict weapons, yet were told to stand down and 

"just surveil." Agents therefore did not act. They watched straw 

purcbasers buy hundreds of weapons illegally and transfer those 

weapons to unknown third pal·ties ami stash houses. 

During their interviews. several agents offered detailed descriptions of their observations 

of suspected straw purchasers entering FFLs to purchase enonnous quantities of assault rifles. 

Following orders, they did not intervene. Agent Dodson remembered: 

Q. You got a guy that had purchased, ' ,40 different AKs in the past 

two months and, five or len of them had already returned in 

time to crime, So I thought here we go, we are going to start 

interdicting people. 

We - they would go in and buy another five or ten AK variants or 

, five or ten 1'1'1 Five-seveN pistols at a time, and come out. We 

would see it. We would know ... that whatever standard of 

reasonable suspicion or probable cause was met, and we were 

landing on somebody before the end of the day, Bnt that didn't 

happen. 

Q, And that's something you realized how early in your fieldwork, 

first or second day? 

A Oh, yes, sir. 1 mean first or second day you are starting to question 

why aren't we doing this, And then by the end ofthe week it was, 

, , fmstrution already as to how many guns have we watched these 

guys get away with, 

Q, In your first week, can you make an estimate of how many guns 

you saw get loaded into a vehicle and driven away? ! mean, are 

we talking like 30 or one? 

A. Probably 30 or 50. It wasn't five. There werc five at a time, 

These guys didn't go to the FFLs unless it was five Of morc, And 

the only exceptions to that arc sometimes the Draco. which were 

the AK variant pistols, or the FN Five-seveN pistols, because a lot 

ofFFLsjust didn't have ,,]0 or 20 of those on hand,:;o 

I() Agc!lt Dodson Transl~Iipl, at 33-.34. 

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Witnessing, but not contacting, straw purchasers buying weapons from fFLs became 

common pra~tice for Group vn field agents in Phoenix. Agents sometimes conducted minimal 

surveillance following the purchases. Sometimes they conducted no surveillance. As Agent 

Dodson testified: 

We witnessed one of the individuals. . the known straw 

purchasers arrive, go in. Sometimes one of us would actually be 

inside the FFL behind the counter. Sometimes if ,ve had enough 

lead way we would go to the suspect's house and follow him from 

there 10 the FFL, or to a meeting. . just prior to and see an 

exchange. Jl 

Typically, agents ended surveillance of both the guns and the straw purchasers. Agent 

All testi fied: 

Watched and/or was aware - I shouldn't say watched - was aware 

that purchasers were routinely making purchases ... at least in one 

case suspects who were known to be purchasing for other people 

were buying firearms with funds that were Imown to come irom 

other people. And those fireanll5 were not interdicted. Those 

firearms often went to a honse or a place, and then surveillance 

was tenllinuted there. So the disposition of the particnlar fircarm 

mayor may not have been known. 

Q. And did that happen irequentiy? 

A. YcS. 12 

B. Ordered to Stand Down 

Superiors specifically ordered field agents to "stand down" despite establishing probable 

cause that a straw purchase had occurred. Agent Casa testified: 

Q. And you were instruclGd or under orders from the case agent and 

group supervisor to do what, to do nothing? 

A. Well, when I would call out on surveillance, yes, I was advised do 

not - I would ask do we want 10 do a traffic stop, do we want to - I 

will throw another definitioll, you guys have probably heard this. I 

am sorry, guys. I don't know what you heard or didn't. It is called 

"rip." It is a slang fc)r saying we are going to do a warrantless 

seizure of those firearms once we establish probable cause. 

,\g,mt J)OdSOll T"mscrip! at 39. 

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74504D3-31.eps

Yeah, , , one of those days I called the case agent on the N exlel, 

said, hey "our straw purchaser, one of our targets has transferred 

the guns, he is driving south, This unknown person that just got 

delivered the firearms probably , all intent~ and purposes gave 

the straw purchaser the money to buy the guns had all the guns and 

he is going north, Hey, why don'! we go ahead and stop that 

vehicle, rip the guns, and you can do what you want, we can arrest 

them, Vole don't have to arrest them, But we will grab the guns, 

And they said no, And I said this person is an unknown person, 

Well, you got the license plaw, Well, it can be, that car could be 

regislered to anyhody, we don't know who that person is, let's at 

least do a vehicle stop so we can TD the perSall so maybe latcr wc 

could get the guns back No, just slIrveil, ,3 

Agent F orcelli recounts that situation trom a di±Ierent point of vicw: 

Well, as I said, there was that GRIT, people at command, And 

there was an instance where an agent was yelling over the radio, , ' 

, There were a bunch of people milling around, And we heard an 

agent that sounded like he was ill distress, 

And what happened was he was attempting to do a car stop, And 

we heard a female agent" telling him to stand down and not do 

the car stop, I later found out there were guns in the car and that 

the agent felt distressed because they had made him on the 

surveillance, So to let the guns go, it doesn't make any sense to 

me if you are blmled, 

Q, Do you know who the agent \\'as'! 

A, Yes, It was AgcntCasa, 

Q, And so you specifically yourself hcard him on the radio saying 

something to the effect J want to go get these guns now? 

A Yeah, And again, the reason, being a eop for so long you hear so 

many things on the radio, but you always can tell when somebody 

is in distress by the tOlle of their voice, As a cop you start racing to 

the scene before you actually hear the calL This was a similar 

instance, where you can tell by the tone of his voice something 

wasn't right 

Later on I spoke with him, And he said that a car had almost come 

at him, That's how aggressive they had become during the 

surveillance, And that's why he was so excited on the radio, But 

33 Agent Casa Transcript, at 4l-43 

Page 13 i 
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74504D3-32.eps

he was lold to not stop the car with the guns in it, which to me 

makes no sense. 34 

Agent Dodson described the situation: 

1 remember one time specifically we had heen following this 

individual for so long to so many places that day money 

pickups, gUll drops, F FLs, and he got into an area of the city and he 

just started doing crazy [Ivans] ... [like] unexplainable U-tum,. 

He is doing heat runs, trying to bum surveillance, whatever cliche 

you want to use. 

So we knew we were made. Okay? We are made. He knows we 

arc following. He knows we have been following him for awhile 

and we haven't done anything. We have to do something. I mean 

you have to do - we have to pull him over. \Ve have to interact 

with him at some point. If not, he is always going to wonder, well, 

why are you following me. At least, for no other reason than a 

ruse, pull him over because. he did that illegal U-turn and 

whatever we need. 

We did it when I worked dope all the time. If they made 

surveillance, what did you do? Hey, there's an armed robbery 

back there, you guys match the description. No, you are not them. 

All right, later. And then we don't heat them up too bad. We 

weren't allowed to do that, not even for a ruse situation. I mean 

there is a verbal screaming match over the radio about how ... 

what are you talking about? There is 110 better time or reason 

to pull this guy over thall right now. 

Q. So, in other words, whatever arguments might have been made 

before with regard to the specific instance that you are referring to 

ahout the utility of letting them continue their operations without 

knowing lhat you are onto them so that you can then follow and 

see where it goes, all those arguments go away at the point Ihey 

made the fact they are being surveilled, right? 

A Correct:15 

Unfortunately, ordering special agents to "stand down" when they planned to interdict 

guns became the norm. As Agent Dodson testified: 

Q. Can you recollect a time when you were conducting surveillance 

on all FFL and you saw firearms being loaded into a car when you 

at 60-62 

at I !6-117. 

Page i 32 
403 


74504D3-33.eps

said to your colleague we got to go, we got to go seize this now, I 

understand the direction we have been given, bul this is bad stuff, 

these are bad people, v,'e need to go justA. Yes, sir. 

Q. And did you ever do that? 

A. No, sir. We were, at the time, one of the incidents that I recall 

specifically, Special Agent lD] was in the wire room al the time. 

We had been directed by both case agent and group supervisor that 

absent both of them, she is in charge. When we were 

commlmicating the interdiction that we were going 10 make over 

the radio, she, monitoring the radio traffic in the wire room, came 

back over and ordered us to stand down. 

I debated this with her, probably far more Jengthy than 1 should 

have over the radio, and again ultimately was just ordered to stand 

down. There were actually more than one of these discussions 

with her and Group Supervisor Voth, as well as ,'lith Special Agent 

[L], when I thought we had a duty to act, tilat that was 

nonfeasance on our part by not d()ing so. And each time [ was ... 

told to stand down and somewhat reprimanded afterwards for 

voicing it. J6 

Other agents had similar experiences in being told to stand down. Agent Casa 

remembered: 

And a situation would arise where a known illdividual, a suspected 

straw purchaser, purchased fireamls and immediately transferred 

them or ShOl11y after, not immediately, shOltly after they had 

transfened them to an unknown male. And at that point I asked 

the case agent to, if we can intervene and seize those lircanns, and 

I was told no. 37 

These were not isolated incidents. Group vn members discussed, debated, alld lamented 

walking guns on a daily basis, but the practice continued. Agent Casa testified: 

Q. And what did you observe during your surveillance? 

A. [I] observed suspected straw purchasers go to area federal firearms 

licensees, FfLs, go into the store, walk out with a large munber of 

weapons, get into a vehicle, drivc off]8 

Page 133 
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74504D3-34.eps

C. "We Were Walking Guns. It was Our Decision." 

As an of the accounts from numerous ATF agents demonstrate, ATF intentionally and 

knowingly walked guns. One of the ASACs in Phoenix reported that this policy was 

"sanctioned." To allow these guns to be bought and transferred illegally was a conscious and 

deliberate decision, not merely by failing to take action to interdict, but also by giving the green 

light 10 gun dealers to sell to known straw pmchasers. By sanctioning the purchases even after 

dealers expressed eonccms, ATF agents said they were actually facilitating the transactions: 

Q. And essentially you witnessed guns walle; that was not consistent 

with your training and experience? 

A. Sir . by the very definition of allowing them to walk, if I 

witnessed guns walk, that means it is another agency's operations. 

If I go help another agency and this is their op, then I witnessed 

guns walk. 

We were walking guns. It was ollr decision. We had the 

infonnation. We had the duty alld the responsibility to act, and 

we didn't do so. So it was us walking those guns. We didn't 

watch them walk, we walked39 

Agent Dodson later explains the consequences' 

Q. That countless number of crimes are being perpetrated with these 

weapons that you and your colleagues may have facilitated --

A. Yes. 

Q. -- moving into the hands ofthe bad guys? 

A. Yes. sir. I wOllld argile that it wasn't a "may have facilitated." 

It was facilitaled. These FFLs wouldn't have madc these 

purchases, I mean they addressed their concerns to, I mean to A TF 

hoth timnally as well as to us when we were imide getting copies 

of the fonns, that this wholeThe genesis of this case was when they were calling in these 

people that they knew. This guy comes in, buys 10, 15, 20 AKs 

or ... II 22-year-old girl walks in and dumps $11),000 on ..• 

AK-47s ill II day, when she is driving II heat up car that doesn't 

have enough metal to hold hubcaps on it. They knew J.l'kat was 

~9 Agent Dodson Transcript a.t 41, 

Page i 34 
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74504D3-35.eps

going on. The "may have facilitated" to m~ is kind of erroneous, 

We did facilitate it. How are we not responsible for the ultimate 

outcome of these [g]uns?4il 

vm. Collateral A Fast and Furious 

An increase of crimes and deaths in Mexico caused an increase in the recovery of 

weapons at crime scenes, When these weapons traced back through the Suspect Gun Datahase to 

weapons that were walked under Fast and Furious, supen'isors in Phoenix were giddy at the 

success of their operation, 

A. Increasing Volume Equals Increasing Success 

FINDING: Operation Fast and Furious contributed to the increasing violence 

and deaths ill Mexico. This result was regarded with giddy optimism 

by ATF supervisors hoping that guns recovered at crime scenes in 

Mexico would provide the nexus to straw purchasers in Phoenix. 

Since ATF supervisors regarded violence and deaths in Mexico as inevitable collateral 

damage, they were not overly concemed about this etIect of the Operation. Quite the opposite, 

they viewed the appearance of Fast and Furious guns at Mexican crime scenes with sati,lj"action, 

because such appearances proved the connection between slTaw purchasers under surveillance 

and the DTOs, For example. Group VII Supervisor David Voth eagerIy rcpOlted how many 

weapons their "subjects" purchased and the immense caliher of some of these guns during the 

month ofMareh alone: 

40 Agent Dodson Transcript, at 59 

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74504D3-36.eps

From: 

Sent: 

To: 

Co: 

Subjeot' No pressure but porllapo an Increased senae of urgency." 

958 killed in March 2010 (Most violent month since 2005) 

937 killed in Jmmary 2010 

842 killed in Decem bor 2009 

j 87 murders in March, including 11 policomen 

I hop" this .-maills well received In that Itls net Intended to Imply anything atherthan thatlhe violence In Mexico Is 

severe and without being dramatic we have a sense of urgency with regards to thIs Investigatfon. Our subjects 

purchased 359 firearms during the month of March alone, to inch.ld£:! numerous Barrett .50 caliber rIfles. I believe we 

are righteous in our plan to dlsmantle this entIre organization and to rush In to arrest anyone person wlthout takfng in 

to account the entire scope of the conspiracy would be m advised to the overall gDod of the mission, i acknowledge that 

we are all In agreement that to do so properly requires patience and planning. In the event howeverthat there Is 

anything we can do to fac!1ltate a timely response or turnaround by others we should commun1cate our sense of urgency 

with regnrd to this matter. 

Thanks for everyone's, continued support in this endeavor, 

David Valh 

The agents wilhin Group VII described Voth's reaction to all this gun violence in Mexico 

as "giddy. ,,41 In addition to this e-mail.private conversations they had with Voth gave them the 

impression that Volh was excited about guns at Mexican crime scenes subsequently !Taced back 

to Fast and Furious. Agent Dodson explains: 

Q. Tben there is an e-mail that was on CBS news that I made notes 

~bout written on April 2, 2010 by Group Supervisor Voth? 

A Yes, sir. 

Q. And he reported that our subjects purchased 359 firearms during 

March alone. 

A Yes, sir. 

Q_ That there were 958 people killed in Mmch of201 O. 

41 Agent Dodson Transcript) at 118 

Page: 36 
407 


74504D3-37.eps

A. Yes, sir, 

Q. And he was .. , he was essentially trumpeting up the violence that 

was occurring as a result of an ATF sanctioned program, is that 

conect? 

A. Agent or Group Supervisor Voth took that, or the way that he 

presented that to us was look here, this is proof that we are 

working a cartel, the gnns that our guys arc buying that we are 

looking at arc being found, are coming back with very short time 

to crime rates in Mexico in known cartel related violence, and the 

violence is going through the roof down there, we arc onto a good 

thing here. 

Q. The c-mail further goes on and says there was 937 killed in 

January 2010, 842 killed in December, 2009, The numbers arc 

increasing? 

A Yes, sir,42 

This evidence established a nexus between straw purchasers in the United States and the 

DTOs in Mexico, bringing ATF one step closer to catching the "bigger fish," This strategy of 

letting the "little fish" go in order to capture the "bigger fish" was the ultimate goal of Phoenix 

Group VII. As Agent Dodson explained: 

Q. Okay. So earlier we were discussing an e-mail that . was 

describing from !Vir. Voth where he appears to present the crimes 

in Mexico, You said something to the effect that he was, he was 

prescnting the guns being recovered in Mexico as proof that you 

were watching the right people, 

A. Correct. 

Q, And that the increasing levels of violence were proof you were on 

the right track, essentially. 

I just wanted to clarify. Is that, whell you were saying those 

things, was that your reading of his e-mail, or do you recall other 

conversations that you had with him outside oflhe e-maillhal 

this was evidence that you were on the right track? 

A. Well, both, I get that impression from reading his e-mail, but 

perhaps! get that impression because of knowing him how well I 

did, 

42 Agent lJodson Transcript, at 56-57. 

Page r 37 
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74504D3-38.eps

There were several instances. Whenever he would get a trace 

report back ... he was jovial, ijllot, not giddy, but just delighted 

about that, hey, 20 oj our guns were recovered with 350 pout1d~ 

oj dope in Ilfexico last night. Am! it was exciting~ To them it 

proved the nexus to the dmg cartels. It validated that.. we were 

really working the cartel case here 43 

Agent All described in great detail his disgust at the self-satisfaction of ATF leadership 

for sending guns into what they knew to be a waf zone. He also expounded on his view that the 

Group Sllpervisor should have been more concerned with those deaths in Mexico rather than 

with motivating his team. He testitied: 

Why then do we stand by and try to motivate agents to do 

Romething more to stem the homicides, .. with no further mention 

on the homicides and correlate that with the number of guns 

recovered in Mexico in a given month, when we should be saying 

how many of those guns left this slale that we knew about in 

relationship to our cases in conjunction with these murders? That 

didn'! happen."4 

B. "You Need to Scramble Some Eggs" 

According to the A TF agcnts. their supervisors in Phoenix were sometimes shockingly 

insensitive to the possibility the policy could lead to loss of life. Agent Dodson explained: 

Q. [S]omebody in management 

some eggs." 

A. Yes, sir. 

. used the terminology "scramble 

Q. If you arc going to make an omelette you have got to scramble 

some eggs. Do YOll remember the context of that? 

A. Yes, sir. It was - there was a prevailing attitude amongst the group 

and outside of the group in the ATF chain of cOlllmand, and (hat 

was the attitude. . 1 had heard that. ' sentiment from Special 

Agent [E] Special Agent [L], and Special Ag"nt Voth. And the 

time referenced in the interview was, I want to say, in :Mayas the 

GRIT team or gunmnner initiative (earn was coming out. I was 

having a conversation with Special Agent [L] about the case in 

which the conversation ended with me asking her are you prepared 

to go to a border agent's funeral over this or a Cochise County 

·13 Agent Dodson Transcript, at 117-118 

" Agent All Transcript, at 174. 

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74504D3-39.eps

deputy's over this, because that's going to happen. And the 

sentiment that was given hack to me by both her, the group 

supervisor, was that ... if you are going to make an omelette, you 

need 10 scramble some eggs45 

C. An Inevitable and Horrible Outcome 

The increasing number of deaths along with the i Ilcreasing numher of Fast and Furious 

guns found at Mexican crime scenes evoked a very different reaction among the line agents. 

They had great an:l(iety about the killings across the horder. Their concern focused on reports of 

shootings and assaults oflaw enforcement officials. They won'ied openly of the consequences of 

walked weapons used to shoot a police officer. 

This worst-case scenario came to fruition when United States Border Patrol Agent Brian 

Terry was murdered and two "walked" AK-47 rifles were found at the scene ofthe murder. 

Agent Porcelli described the mood following the Terry murder: 

Q. Do you recall any specific conversations that you had about after, 

after learning that.. two of the guns at the scene had been traced 

back to the Fast and Fmious case? 

A [T]here was kind of a thing like deja Vll, hey, we have been saying 

this was going to happen. Thl' agents were pretty livid and saying 

exactly (hal. We Imcw. How many people were saying this was 

going to happen a long time before it did happen? 

And then there was a sense like every other time, even with 1}ls, 

Gifford .. ' ,~hooting, there was a slate of panic, like, oh, God, let's 

hope this is not a weapon from that case. And the shooting of Mr. 

[Zapata] down in Mexico, I know that, again, that stale of panic 

tbat they had, like please let this no! come back. 

This was an embarrassment . . . that this happened to the agent, 

tragic. T mean my heart goes out to this family. I lost colleagues, 

and 1 couldn't imagine the pain they were going through. And it 

made it painful for us, even those not involved in the case, to think 

ATP now has this stain,4G 

Agent All explained the process by which ATF learned that weapons were being 

trafficked into Mexico. 

Q. But how would you identify that they ended up in Mexico? 

n,,"OC'" ,rco,eo.c.'''' at 135-\36 

Agent Force1!i 'Transcript at 127-128. 

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410 


74504D3-40.eps

A. Well, there is a variety of ways. One ... you would identify where 

they arc going by virtue of recoveries that are happening in crimes 

or interdictions .... So you identify that they arc going south. And 

I think then the strategy, if I understand it, is that the firearms are 

thCll, once ... they are going south, you try and follow them and 

figure out where they are going and to who they are going to tie to 

a grcater organization and more people, identify the hierarchy of 

the organization. That's the strategy. 

And I don'l know how you perfect a case doing that when you 

don't have the guns .... Bu! the strategy to me would have (0 be 

that there has got (0 be some measure of accounting or follow-up 

as to where they end Up.47 

The notion that these guns moved into Mexico and aided the drug war distressed the A TF 

field agents, including Agent Casa: 

Q. 11 was a likely consequence of the policy of walking guns that 

some of those guns would wind up at crime scenes in Mexico? 

A. Yeah. 

Q" And is it fair to say that some, if not many, of these crime sccnes 

would be where people would be seriously injured or possibly 

killed? 

A. Of course. 

Q. So is it II fair, predictable outcome of the policy that there 

would be essentially collateral damage in terms of human 

lives'? 

Agent Casa also emphasized that those who planned and approved Operation Fast and 

Furious could have predicted the ensuing collateral violence: 

I feel for the family of Agcnt Terry, I feel for his death .... I don 'I know 

how some of the people I work with could not see this was going to be an 

inevitable outcome, something like this happcning. And I don't know 

why they don't think that six months from now this won't happen again, 

or a year from now, a year and a half from now . 

. " Agent AltTranscript, at JGO-16i, 

4g Agent Casa Transcript, at 126-127 

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74504D3-41.eps

But I uon'l know the exact number of guns that were put out into the 

streets as a result of this investigation, But they arc not going to 

disintegrate once they arc used once, They are going to keep popping up 

over and over and over49 

D. The Pucker Factor 

FINDING: Every time a law enforcement official in Arizona was assaulted or 

shot by a firearm, A TF agents ill Group VII had great allxiety that 

gUlls used to perpetrate the crimes may trace back to Operation Fast 

and Furiolls. 

The design defect of Fast and Furious was its failure to include sufficient safeguards to 

keep track of thousands of heavy-duty wcapons sold to straw purchasers for the DTOs. ATF 

agents did not maintain surveillance of either the guns or the straw purchasers. The guns were 

therefore lost The next time law enforcement would encounter those gilllS was at crime scenes 

in Mexico und in the United Slates, However, because ATF had contemporaneous notice of the 

sales from the gun dealers and entered the serial numbers into the Suspect Gun Database, agents 

were notified whenever a trace request was submitted for one ofthose walked guns. As Agent 

All testified: 

Q, r A lli!tle bit earlier you talked about a level of anxiety, the anxiety 

among the agents, perhaps even the supervisors. relating to 

weapons that are found at crime scenes, There was a death, there 

is a murder scene in Mexico, There is a trace that comes in of 

some kind, and the weapon is then connected to a weapon that may 

have been one oftlle weapons that were walked, .. ' Is that 

accurate? 

A, Yes, I used the word anxiety. The term I used amollgst my 

peers is pnckel' factor. 

* * * 

Q, Pucker factor, precisely. But that's what it is relating to? 1 am 

saying that correctly, right? 

,1\., Yes, 

Q. And this pucker factor, in your view, is related to a gun showing 

up at a crime scene, right, a murder scene, someone gets killed, ct 

cetera? 

49 Agent Casa Transcript, at 127-128. 

Page! 41 
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74504D3-42.eps

A. Absolutely. 

Q. [B]ut isn't that crime scene also the reason or the place that permits 

us to trace the gun? In other words, onee the gun is walked, let's 

say it walks south, isn't the only other information we arc ever 

going to get about that gun, isn't that going to come from a crime 

scene? 

A Most likely, unless we have some resource in place down there, 

whether it be an infonnant or an undercover or an agent or 

something telling us where those guns end up. 

* * 1\1 

Q. So assuming for a second that that does not exist because we 

don 'I have any evidence to speak of, the only way we are goin~ 

to see this firearm that was let go --

A. Is !I crime !·ecovery. 

Q. Crime gun recovery --

A. That's correct 

Q. .- which would be either in the pocket of a person caught for some 

other offense or very likely at a shooting? 

A. Most oflhe Mexican recoveries are related to an act. of vi ok nee. 

Q. But so typically the rCCOVC1Y will have evolved around a serious 

injmyor gun related? 

A. Or about dmg related. 

Q. But someone is either dead or hurl or both or something 

frequently? 

A. Y cs ... there is a lot of violence, and guns are recovered with 

respcct to the violence. A lot of your big seizures orthe guns, 

though, tbe big seizures of the guns. mass is usually in conjunction 

of seizures of other things. 

* * * 

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74504D3-43.eps

My opinion is the last portion of your statement is spot on, you 

have to accept that there is going to be collateral damage with 

regard to that strategy. You can'! allow thousands of guns to go 

south ofthe border withont an expectation that they are going 

to he recovered eventually in crimes and people are going to 

die. so 

IX. The 'T' ... " ... iil'" Death of U.S. Border Patrol 

FINDING: Jaime Avila was entered as a suspect in the investigation by ATF on 

November 25, 2009, after purchasing wcapons alongside Uriell'atino, 

who had been identified as a suspect in October 2009. Over the next 

month and a half, Avila purchased 13 more weapons, each recorded 

by the A TF in its database within days of the purchase. Then on 

January 16, 2010, Avila purchased three AK-47 style rifles, two of 

which ended lip being found al tbe murder scene of U.S. Border 

Patrol Agent HI'ian Terry. Tbe death of Border Agent Brian Terry 

was likely a preventable tragedy. 

Fast and Furious has claimed the life of an American federal agent. Late in the evening 

of December 14,2010, Border Patrol Agent Brian Terry, a native of Michigan, was on patrol 

with three other agents in Peck Canyon, near Rio Rico, Arizona. One oflhe agents spotted a 

group of five suspected illegal aliens; at least two were carrying ritles. Although one of the 

border patrol agents identified the group as federal agents, the suspected aliens did not drop their 

weapons. At least olle ofthe suspected aliens tired at the agents, who retumcd fire. Agent Terry 

was stmek by on bullet that proved to he fatal. 5

! 

Most ofthc suspected aliens tled the scene, though one ofthem, Manual OsorioArellanes, had been wounded and was unable to flee. A slew of federal agents from a variety of 

agencies arrived at the scene and the authorities' recovered three weapons from the suspects, 

who had dropped their rifles in order to flee the scene faster. Two oflhose recovered weapons 

were AK-47 variant rifles that had been bought on January 16,2010 by straw purchaser Jaime 

Avila during Operation Fast and Fmious. Avi1a was entered as a suspect in the investigation by 

ATF on November 25,2009. This occurred after he purchased weapons with Uriel Patino, a 

straw buyer who had previously been identified as a suspect in October 2009. On November 24, 

2009, agents rushed to the FFL to surveil Avila and Patino, but a1Tived too late. Over the next 

month and a half, Avila purchased 13 more weapons, each recorded by the AIF in its database 

within days of the purchase. Avila bought the weapons recovered at the scene of Agent Terry's 

murder almost two months after ATF knew he was working with Patino. Avila's purchases 

would eventually total fifty rwo under Fast and furious. 52 Patino's purchases would eventually 

50 Agent All Transcript, at 187- 191. 

51 In fe: Manual Osorio-Arellanes, No.1 0-10251 M, aff. of [Name Redacted], Special Agent. (D. Ariz. Dec. 29, 

2010). 

"Chart of "lndicted targets", [Author Redacted], AIGS Phoenix FIG, (Mar. 29, 2011). 

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74504D3-44.eps

top 660, As with all the Fast and Furious suspects, gun dealers provided contemporaneous 

notice of each sale to the ATF53 

The day after the Terry shooting, law enforcement agents located and arrested Avila in 

Phoenix, The u.s, Attomcy's Oftke in Arizona later indicted him, Avila's indictment, 

however, is typical of the indictments that have resulted thus far from Fast and Furious, A vila 

was indicted on three counts of "lying and buying"-inc!uding false statements on ATF Form 

4473, a prerequisite to the purchase of any firearm, These three indictments, however, do not 

stem from the weapons purchased on January 16,20 10, that eventually ended up al the Ten"y 

murder scene, Instead, Avila was indicted with respect to rifles he bought six months later and 

which also turned up al a crime scene, 

On May 6, 2011, DOJ unsealed an indictment of Manuel Osorio-Arellanes for the murder 

of Brian Terry,54 Federal authorities, led hy the FBI, are pursuing his co-conspirators, including 

the gunman suspected of firing the fatal shot and fleeing the scene, 

!n Phoenix, the news of Agent Ten~y's death deeply saddened, but did not surprise, Group 

VII agents, They had agonized over the possibility of this event, and they mefully contemplated 

future similar incidents resulting from the abundance of illegul guns, 

During their transcribed interviews, the A IF agents shared their reactions to Agent Brian 

Terry's murder, Agent Dodson testified: 

53 [d 

Q, Along those lines. when did you find out that Agent Terry was 

killed? 

A I found out Decemher 16th, 2010, 

Q. And what can you tell us about your recollections that 

information? 

* * * 

A. Well, 1 was called by another agent and was told that - or asked if! 

had heard about Agent Terry's death, I told him that I had, And 

then he confinued for me what I already thought when he called, 

which was thal it was one of tile gUllS hom Fast and Furious, 

And then later that day, 1 was speaking to my acting supervisor, 

Marge Zieha, and she had made a comment to me that they were 

very husy because two of the Fast and furious guns were found at 

the scene of Agent Terry's homicide,55 

54 U,S, v, Manuel Osorio-Arellanes et aL, No, CR-ll-OISO-TUC-DCB-JCG, (D,Ariz, Apr, 20, 2011), 

"Agent Dodson Transcript, at 136-137, 

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74504D3-45.eps

Agent Dodson also detailed ATF's awareness of and its multiple contacts with the 

accused murderer, Jaime Avila, for months prior to Agent Terry's murder. 

So essentially in January 20 I 0, or December when I got there, we knew 

Jaime Avila was a straw purchaser, had him identified as a known straw 

purchaser supplying weapons to the carleL Shortly thereafter, we had 

previous weapons recovered from Mexico with very short time to crime 

rates purchased by Jaime Avila, as I recall. 

And then in May we had a recovery where Border Patrol encounters an 

armed group of bandits and recovered an AK variant rifle purchased by 

Jaime Avila, and we still did no! - purchased dllring the time we were 

watching Jaime Avila, had him under slIrveillance, and we did 

nothing. 

Then on December 14th, 2010 Agent Brian Terry is killed in Rio Rico, 

Arizona. Two weapons recovered from the seenc . two AK variant 

weapons purchased by Jaime Avila on January 16th, 2010 while we had 

him under surveillance, ailcr we knew him to be a straw purchaser, after 

we identified him as purchasing fireanl1s for a known Mexican drug 

cartcC6 

Allhough the A TF agents' worst fears were confirmed, they did not feel good about being 

right. In the wake of Agent Terry's death, they were even more upset, saddened, and 

embarrassed. Agent Alt explained: 

I have loved working for ATF sinee I have been hired here. I came here to 

retire from ATF. I could be doing any number ofthings, as you all are 

aware .... I could be whatever I chose to be, and I chose to be here. 

I am not -- I am embalT8ssed here. I regret the day that J set foot into this 

field division because of some oflhe things that a few people have done 

and the impacllhat it has had on our agency, and not the least of, not the 

least, though, is the impact it has had on the public and safety and Agent 

Terry. "''hUe I don't know that gUlls in any of these cases arc directly 

responsible for his death, I am appalled that there would be in any way 

associated with his death. 57 

A December 15, 2010 c-mail exchange among ATF agents details the aftermath of Agent 

Tcrry's death. ATF, fearing the worst, conducted an "urgent fireanns trace" of the firemms, 

recovered on the afternoon afthe murder. By 7:45 p.m. that evening, the trace confirmed these 

fears: 

56 Agent Dodson Transcript, at 140-141, 

57 Agent Alt Tnmscript, at 180-181, 

Page! 45 
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74504D3-46.eps

Rom~.L'ml CUGlR, 762 rifle, Mode! GP W ASR 10/63, scrlal nlllubol' '197lCZ377B 

R(ll\1011'm/ CUGJR, 762c di'Je,. Moc1.el Gll WASR 10/ 63, 8eri~1 nu'mb"r 19!13 AH3977 

tnl'tbted an Utg0n;t fixe,,!n1G t1.·<1~~1:eqne8ts on bNh of the fln~;).rms and thm1 contacted the NrC t~l 

the L-r~CGS were conchwtod today. . 

1 wa~ ~dyised by the NTC that thl;' JU·..,n,rlna were el,tol'od into ATB SU8ped Gun database by SA 

M"dim\ and al)~pclated to tI,e. Fost and FuriourJ hweatlgBtlon. The NTC fm'i.h€1' ndvflled thilt on 

01/16/10 Jaime AVILA pmchaned tl11'ee R()'m~r!l) 7,62 rifles from Loni' Wolf Tn,ding ComplIJ1Y, two 

the6'J·ftl'e~nm n1'll the r~lcovel.'ed ,Eli'COOTl1iJ c.it"G! nbove, 

Agent Terry did not die in vain. His passing exposed the practice 0fknowingly allowing 

the transfer of guns to suspected straw purchasers. A IF now maintains it no 10nger condones 

this dangerous technique. The cetlsation of this practice will likely save lives on both sides of the 

border. Tragically, however, we will be seeing the ramific·ations ofthe policy to allow gtJllS 

from Fast and Furious be transferred into the hands of suspected criminals for years to come. 

These weapons will continue to be found at crime scenes in the United States ami Mexico. 

x. The No!" 

FINDING: Phoenix ATF Special Agent in Charge (SAC) 'Vii/lam Newell's 

statement that the indictments represent the take-down of Ii firearms 

trafficking ring from top to bottom, and his statement that ATF never 

allowed guns to walk are incredible, !'alse, and a source of much 

frustration to the agents. 

On January 25,2011, Phoenix SAC William Newell gave a press conference announcing 

the indictment of 20 individuals as a result of Fast and Furious. Most of the indictment involves 

"lying and buying" - paper transgressions that carry much lighter sentences than felonies relating 

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74504D3-47.eps

to acmal firearms tranicking. Under "lying and buying," a straw purchaser improperly fills out 

ATF Fom14473, required before the purchase of any firearm, by submitting false infonnation, 

A comparison ofthe indictment with the goals of Fast and Furious reveals the Operation's utter 

failure. According 10 the agents, the Department could have indicted all 20 defendants far 

sooner than January 20 II, Instead, the timing of the indictment appears to coincide with the 

outrage following the killing of Border Agent Brian Ten;, Agent Dodson testified: 

A, Essentially, the indictTIlents looked very similar in January 2011, 

when they were finally served, as (hey did in December 2009 when 

I first got here, The only difference is the number of purchases 

that were made, Some ofthe names of people are new, some have 

been added and some taken out, but no major players at all. 

Q, So the publicly amlOunced indictments, they arc all for straw 

purchasers, right? 

A. Yes, sir, which we could have rounded up, , , a year and a half 

ago, 

Q, You could have arrested them (he day you saw this stutl' 

happening? 

A. And saved those J 730 guns from being traffickcd"8 

At the press conference announcing the indictments, SAC ~ewell made two notable 

comments, Newell claimed that the indictments represented a take-down of a firearms 

trameking ring from top to bottom,S9 Yet virtually all oflhe indicted defendants were mere 

straw purchasers-not key players ofa criminal syndicate by any stretch oflhe imagination, 

Newell's second notable comment was equally negligent and inaCcllratc. Whcn asked 

whether or not ATF ever allowed guns to walk, Newell emphatically exclaimed "Hell, 1I0!,,60 

His denial was shocking 10 those who knew the tmlh, like Agent Alt: 

58 

Q. And why is that engraincd in your memory? 

A. Candidly, my mouth fell open, I was asked later by the public 

information ofticcr for our division., and 1 told him that I 

thought that - I 'vas just astounded that he made that statement and 

it struck me ,md I don'l know how he could make that statement."l 

* '* :.1-

" l'ornara ;1,udi, AIi"!,,,,,1 G,.tn ,Rillg E1uS/'ed, \V,S.!" Jal1, 26, 2011. 

Guns in ATF sting tied 1(1 agent's death, TfICSO],;" CITrZFN, Fcb 1,20 i L 

Page 147 
418 


74504D3-48.eps

Q, When SAC Newell made those statements at the press conference and you 

said something along the lines - did your jaw drop? 

A. Literally my mouth fell open. I am not being figurative about that 

couldn't believe it 

Q. Is it fair to say that his statements that caused your mouth to drop, thai's a 

spectacular lie, isn't it? 

A, Yes. My mouth fell open because I thought, 1 perceived it as being either 

completely ignorant or untruthfuL But also a person in that position I 

don'! really - I don't Imow that J would have made - the statement was 

unnecessary to make. He did not need to make the statement 

If I am in a position like that and 1 have gotten involved or have 

knowledge of an investigation, me personally, 1 probably would have 

comment. I celiainly would have avoided making a comment like 

that 

Agent Casa also expressed similar astonishment at Newell's inaccurate comment 

following the press conference: 

Q. At the press conference I believe he was asked whether or not gmls 

were walked, and his response was hell no, Do you remember 

that? 

A. Yes, I do. 

Q. What was your reaction to that statement? 

A 1 can't believe he just answered the question that way, 

Q. And why can't you believe that? 

A Because we, in my definition of walking guns, we had walked a 

bunch of guns. When I say we, Group 7. And under this case that 

we are discussing, a buneh of tireanns were walked against the 

objections 0 f some senior agents. 

Q. So Newell's statement was inaccurate? 

A. I would say it was very inaccurale 6J 

ill! T""o,e,';nt at 202-203. 

at 119-120. 

Page 148 
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Agent Forcelli shared similar sentiments over Newell's remarkable statements during the 

press conference. 

Q. Right. Did you attend that press conference that SAC Newell 

came down to do, or did" 

A. No. I was involved in the command post that day. 1 wasn't there .. 

1 heard about it. I was appalled. 

Q. Tell us about your reaction. What were you appalled by? 

A. My understanding is somebody asked him if gUllS walked, and his 

response was hell no. 

Q. How did you feel about that? 

A, Insulted. Because I know that they were saying that this was a 

technique that was like a great new technique we were using ... 

And it just amazes mc. But he knew what was going on. He is the 

SAC. And agents knew that guns were not being interdicted. 64 

None ofthe agents interviewed helieved Newell's dramatic comment to be truthful. His 

denial ofthc existing policy sought 10 end questioning on this topic onee and for all. Instead, it 

only engendered more attention and interest. 

XI. Continued Denials: "That is False." 

FINDING: Despite mounting evidence to the contrary, DO,J continues to deny 

that Opcl'ation f'ast and Furious was ill-conceived and had deadly 

consequences. 

The denials of gunwalking became more sensational as they continued. Presented with 

an opportunity to set the record 8trai ght. the Department of Justice instead chose a path of denial. 

A. "Of Course Not" 

In a Fcbrual)' 4, 2011 letter to SelJator Charles Grassey, Ranking Member of the Senate 

JUdiciary Committee, DOl'" Assistant Altomey General for Legislative Affairs wrote: 

At the outset, the allegation described in your January 27 letter - that ATF 

"sanctioned" or otherwise knowingly allowed the sale of assault weapons 

to a straw purchaser who then transported them into Mexico - is false. 

64 Agent Forcclli Transcript, at 52-53. 

Page 149 
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74504D3-50.eps

A TF makes evelY effort to interdict weapons that have been purchased 

illegally and prevent their transportation to Mexico65 

When asked in latcr meeting~ and letters how this statement could be true in light of all 

the evidence to the contrary, DOJ officially stood by it. The argument that it is true relies on the 

fine· distinction that it was not the straw purchasers themselves who physically crossed the 

border with the weapons, but rather the unknown third parties (0 whom they transferred the 

fircamls. DOJ offered no specific uefensc of the second sentence. 

Of course, this statement misses the point entirely. ATF pennitted known straw 

purchasers to obtain these deadly weapons and traffic them to third pm1ies. Then, at somc point 

after ATF broke off surveillance, the weapons were transported to Mexico. ATF was detinitely 

aware that these Runs were ending up in Mexico, being transported through Arizona and Texas 

Points of Entry6 

The second p311 of this statement is also patently false. Numerous A TF agents have gone 

on the record with stories that directly contradict it. During interviews with, these agents had the 

chance to respond directly to DOrs position. Not surprisingly, they unifoTI111y rejected it. Agent 

Alt testified: 

Q. And I will just read a portion of that into the record. The second 

paragraph of the letter said, the second sentence of the second paragraph 

says, "ATF makes every effort to interuict weapons that have been 

purchased illegally and prevent their transportation to Mexico," period. Is 

that sentence, based on your knowledge of what was going on here in 

Phoenix, true or not true? 

A. No, it is not truc. 67 

Agent Forcelli agreed: 

Q. [The] second sentence of the second paragraph of the letter says: "ATF 

makes every efTort to interdict weapons that have been purchaseu illegally 

to prevent their transJlortation to Mexico," period. Have you heard that 

before, that that representation was made to Congress? 

A. I was unaware of that. And I will tell you based on what r know has 

occurred that that is false. 68 

Agent Forcclli reiterated, "Based on my conversations in regards to that meeting between 

Mr. Hurley and the ATF's agents and the two gun dealers, no. h isfa!se.,,69 And when asked if 

Letter from Assistant Attorney General Ronald Weich to Senator Charles E. Grassley (Feb, 4~ 2011) (emphasis 

S\:'~~~;;~~,~:~n~~'~: Organized Crime Dmg Enforcement Task Force Interim Report (Sept. 9, 2010). A 148. 

Page 150 
421 


74504D3-51.eps

the DOl's siatement was true, given what he had personally witnessed in Phoenix, Agent Casa 

replied, "I think you already know the answer to that O/course not.,,70 

B. More Denials 

Evon after the U.S. Congress presented it with evidence that the statements in the 

February 4,2011 letter were false, the Deparrment of Justice still stood by its initial position. In 

a May 2,2011 response to a letter from Senator Grassley, the Department maintained its original 

position: 

It remains our understanding that ATF's Operation Fast and Furious did 

not knowingly permit straw buyers to take guns into Mexico. You have 

provided to us documents, including intemal ATF emails, which you 

believe support yom allegation. . .. [W]e have referred these documents 

and all correspondence and materials received from you related to 

Operation Fast and Furious to the Acting Inspector General, so that she 

may conduct a thorough review and resolve your allegations 71 

The Justice Department also notes that the Attorney General has "made clear. , , that the 

Department should never knowingly permit fireamls to cross the border." Although the 

Department isslled this directive in early-March, well after the congressional investigation of 

Operation Fast and Furious had begun, it is a welcome af!1m1ation of what the ATF 

whistleblowcrs had heen trying to tell their bosses for over a year before Agent Brian Ten), was 

killed, 

xu. Conclusion 

We will persist in seeking documents and testimony from Justice Department officials 

and other sources to th()roughly examine all the key questions, The Department should avail 

itself of the opportunity to come clean and provide complete answers, It should also reverse its 

position and choose to fully cooperate with the investigation. 

69 Agent Forcelli Transcript, at 144. 

70 Agent Cas a Transcript, at 131. 

7l Letter from Assistant Attorney General Ronald Weich to Charles E. Grassley (May 2, 2011), 

Page 151 
422 

Mr. SMITH. We will now go to the gentleman from Texas Mr. 

Gohmert for his questions. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

So you know where I am coming from, Mr. Attorney General, I 

have been a prosecutor. I have been a district judge handling felonies including death penalty case. I have been a chief justice of a 

court of appeals. I have been appointed to defend cases I didn’t 

want to defend, but I did my very best job and did it well. 

I have had people come before me who were friends that I have 

sent to prison because that was consistent with justice of what I 

would have done to someone in their situation who was not a 

friend. I have sentenced the children of friends with a courtroom 

full of my supporters who were all begging me not to, but I knew 

if I was going to be consistent in justice, I had to do that. I have 

sent people to prison because it was the fair and just thing when 

considering all of the facts and considering what had been done in 

the past. And then I have gone in my office after sentencing and 

wept because of the personal anguish of those that I cared deeply 

about, but I knew I did the right thing, and history has borne me 

out. 

So when I hear an Attorney General of the United States come 

before us and say somewhat cavalierly there is a political aspect to 

this office, it offends me beyond belief. Your job is justice, Mr. Attorney General. It is justice across the board, and that is what has 

been so troublesome around here. 

When we made a request a year ago here for the documents that 

your Department has produced to people who were convicted of 

supporting terrorism, they are terrorists, and we wanted the documents you gave to the terrorists, we are a year later, and we still 

don’t have them. Why in the world would your Department be 

more considerate of the terrorists than of the people who are Members of Congress who can vote to just completely defund your Department? It makes no sense. 

So I will ask again, and there is no room for a response that, 

well, it is an ongoing investigation; well, some of these may be classified. I am asking for the documents your Department produced 

to the terrorist supporters convicted in the Holy Land Foundation 

trial. Can we get those documents, just the ones that you gave to 

the terrorist defendants? 

Attorney General HOLDER. Well, certainly you can have access to 

those things that are on the public record and that were used in 

the trial. 

I was also a judge, I sat in this Washington, D.C.—— 

Mr. GOHMERT. So is that a yes or no that we will get those documents? 

Attorney General HOLDER. As I said, I was also a judge and understand the anguish that you go through. And just let me clear 

up one thing with regard to the political aspect of this job. I have 

to advance or try to advance legislation that I think is appropriate 

for the Department. That is a political job. I have pushed policy initiatives before the Department. That is a political component. I 

fight defunding requests that people kind of cavalierly throw 

around about the budget of this Department. That is, from my perspective, a political component of this job. 

423 

Mr. GOHMERT. Sir, it is not cavalierly. When a Department has 

parts of it that are not doing their job, and, in fact, may be giving 

more aid and comfort to people who are part of organizations who 

want to bring about an end to our way of life, then that concerns 

me that perhaps that is an area that should be defunded. 

And when you have been here before, and we talked about Fast 

and Furious, and you are asked who actually authorized Fast and 

Furious, you had said, we may not ever know who authorized Fast 

and Furious. Are you any closer right now as you sit here to knowing who authorized Fast and Furious? 

Attorney General HOLDER. I suspect that we are closer, given the 

fact that the inspector general is charged with the responsibility of 

investigating this matter at my request, has been in the field and 

been interviewing people. And my guess would be that we are closer to that. I would expect that report will be out relatively soon. 

Mr. GOHMERT. Did you not ever go back to your office and say 

when you found out about Fast and Furious, I demand to know 

who authorized this? Are things so fast and loose in your office that 

somebody can authorize the sale to international criminals of 

American guns that are bringing about the death of even American 

agents, and nobody has to do that in writing? 

Mr. CHABOT. [Presiding.] The gentleman’s time has expired, but 

you can answer the question. 

Attorney General HOLDER. What I did do, I asked the inspector 

general to conduct an investigation. I put an end to the policy that 

led to the Fast and Furious debacle. I made personnel changes at 

ATF and in U.S. Attorney’s Office. We made changes in the procedures there. And that is in stark contrast to what happened to my 

predecessor Attorney General Mukasey when he was briefed about 

the transmission of guns to Mexico and, as far as I can tell, did far 

less than what I did. 

Mr. GOHMERT. Sir, that was a different aspect. 

Attorney General HOLDER. If you want to look at what I did, 

those are simply the facts. 

Mr. GOHMERT. My question, though, Mr. Chairman, was did you 

go back and say, I demand to know who authorized this Fast and 

Furious program? That was the question. 

Attorney General HOLDER. That is consistent with me telling the 

inspector general, find out what happened here. So the answer to 

your question is yes. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Georgia Mr. Johnson is recognized for 5 

minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

On May 12, the House passed its Commerce-Justice-Science appropriations bill, and this is a part of the Ryan budget. And it tries 

its best to eviscerate and neuter the ability of the Justice Department to protect Americans, as it is supposed to do. You can’t operate without money, and the bill, in its attempt to neuter the Department, cuts funding for financial and mortgage fraud enforcement, it prohibits funding for enforcing the requirement that licensed firearms dealers report multiple sales of rifles to the same 

person, it prohibits funding to bring actions against States for their 

voter identification law, among other things. 

424 

The bill would cut funding for the general administration line on the DOJ’s budget request from $81 million to 45 million—excuse 

me, yes, $29 million less than requested. The DOJ program for rescissions and asset forfeitures has been cut. The number of U.S. Attorneys, you will have 1,000 unfilled positions, and you have already lost thus—attorneys, you have already lost 850 staff since 

the hiring freeze that was instituted in January of 2011 has gone— 

since that went into effect, and this bill could result in an additional 411 positions lost. The Antitrust Division is cut $5.2 million. 

You could lose up to 70 positions in that unit. You have already 

lost 77 positions in that unit. That is the unit that keeps consumer 

prices low and gets at collusion and bid rigging and other activities 

that cost money to consumers—cost consumers money. The U.S. 

Trustee Program, which you administered, which is so important 

in bankruptcy, which are on the rise, you are seeing a 5 percent 

reduction; 50 positions may be suspended. Law enforcement wireless communications for the Department has been cut. The ability 

to hire people in foreign language, skilled in foreign languages, has 

been cut. These things hurt the Department’s ability to be effective. 

I want to get to that part about the voter identification laws. You 

were answering a question that was posed to you by Mr.—from 

Iowa, Mr. King, but you were cut off by the bell, and you were not 

given a chance do complete your statement on that. Can you complete it now, please? 

Attorney General HOLDER. I will be honest with you, I don’t remember where I was. 

Mr. JOHNSON. It had to do with the South Carolina challenge of 

your Department to their voter ID laws. 

Attorney General HOLDER. All I can say is that with regard to 

the South Carolina law, we looked at the evidence that was provided to us by South Carolina; did not feel that the evidence about 

voter fraud was substantial enough to overcome the disproportionate impact that the changes in their voting procedures had on 

minorities, older people, young people. It was on that basis and 

under section 5 of the Voting Rights Act that we decided to file suit 

looking to not preclear, which they had tried to do. 

Mr. JOHNSON. So basically you were stating, or you have stated, 

that the reason that South Carolina gave for making it tougher to 

vote through voter ID requirements, the reason that they did that, 

which is to get at voter fraud, did not hold any water. In other 

words, there was insufficient evidence of voter fraud, and so, therefore, there must have been some other intention behind their legislation to make it more difficult to vote. Would you agree with me 

on that? 

Attorney General HOLDER. Well, the initial material we got from 

them did not have any statistical proof. We got a submission from 

them later on that indicated there were perhaps 900 people who 

were dead who were on voter rolls, or something along those lines. 

That was then disputed by another South Carolina official. 

This is all a matter that is now before the court and will be ultimately decided by the court here in Washington, D.C. 

Mr. JOHNSON. And then as I stated earlier, the House Commerce-Justice-Science—— 

Mr. SMITH. [presiding.] The gentleman’s time has expired. 

425 

Mr. JOHNSON [continuing]. Funding to bring actions against 

States for their voter identification laws. 

And I will yield back the balance of my time, but I would like 

to make a unanimous consent request. 

Mr. SMITH. Without objection. What document does the gentleman wish to enter into the record? 

Mr. JOHNSON. There are 10 letters of support for Attorney General Holder praising his leadership from the National Fraternal 

Order of Police; from Patricia Maisch, the Tucson shooting survivor; a letter from the Leadership Conference to Chairman Issa; 

a letter from Commissioner Ramsey to Chairman Issa; a letter 

from the National Action Network to Chairman Issa; a letter from 

the Leadership Conference to Speaker Boehner; a letter from the 

National Immigration Law Center to Speaker Boehner; a letter 

from the National Women’s Law Center to Chairman Issa, a 

tricaucus letter from Representative Gonzalez, Representative 

Cleaver and Representative Chu. 

Mr. SMITH. Without objection, all those—— 

Mr. JOHNSON. Last but not least, a letter from the National Organization of Black Law Enforcement—— 

Mr. SMITH. Did you get these letters from the Attorney General 

himself? No, I am teasing. 

Mr. SMITH. Without objection, all those letters will be made a 

part of the record. 

Mr. JOHNSON. Thank you. 

[The information referred to follows:] 

426 


74504E1-1.eps

CHUCK CANTERBURY 

NATlm;AL rRESIDENT 

2 ;,{ovemher 20 I 1 

The I-1ononlblc Patrick J. Leahy 

ChairmtH1 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

Dear Nfl'. C!la11rnQn~ 

POLICE" 

JAMES O. PII.3CO, ,JA. [,XECUTIVE DIRF;JTOR 

This is in rC'lponsc to your recent inquiry about the relutionsbip bchveen the Fraternal Order of 

Poliee (mel ES, Attomey General Eric H. Holder, k 

}"S you know, the FOP supPOlied the nomination of Mr. Holder in January 2009 after 

undmtaking an cxhnustive examinatioll afM!', Holdel'}s ::ecDrd of pub He service. From his first 

twelve yeurs in the U.S. Depa~1melll of Justice in the Public Integrity Section, to ~lis rulings fl'om 

the bench of the Superior Court of the District of Columbia and his role ES a prosecutor while 

serving as tLS, {()T the District ofCo~umbia, to his role as Deputy .Attomcy General and 

Acting Attorney oithc United States, our revie,w concluded that his posiliollS and actions 

v;ei'e >':ol1sislent with the goalti and ohjectives of the fratG111f11 Order of Po Ike and the ran"k-andfile officers we proudly represent. We were ~he only law enfOrCC1TIent organization to testify in 

SUppOfi. of his llorninatioJl before the Judiciary Colnm':ttce in 2009: 

T~le FOP has lmique insigllt into il/lI. Holder's 1englhy career in puhlic service becatwe we did 

not just work '\,vith him in his variou!i policy.·n:mking roles at the Justice Departrnent, but also in 

the COllrtroo:n) both as ajudge atid as U.S. Attorney. The leadership orthe District ofCnlumbia 

fOP Lodge tEld our lnembers from the many different law enforcement agencies in the city 

rcpOlicd that tbey found Juuge Holder fair and U.S, AttomeyHolder an able and aggl'(;)sslve 

prosecutor. T~lCse experiences have made him a more able U.S, Attorney GCHt)ral and we are 

happy to repor1 thai. his COl1l111itmcnt to law enforceluent and Hw ran .. ~-aml-ft1c officer remains 

very strong, 

We have been pleased to work with Geneml Holder and other members of his leadership team on 

a wide variety 0 f law enforcement issues1 most recently and mObt impOliantlYl on oiliccr safety. 

This calendar year has seen a dangerous spike ill the number oflaw enforcement oflicers killed in 

the lille of duly, Early this year, General Holder reached out to the FOP in an effort to 

understand the reasons behind the increased death and to help improve the safety of officers in 

tweryregiClll ofths country. 

-BUJLDlNG ON A PROUD THADITION-
427 


74504E1-2.eps

We are also pleased that we have ']een ahle to wO;'k with Ueneral Holder closely on the fIscal 

challengc3 that State and local hnv cllforcement officers i.lIe facing as h1.1dgets me crunched and 

Federal assistance diJnh'!igh~g. He has been a true champion of the programs we care most 

administered by the OHicc OfCOnill1l.Jnity Oriented Policing Services 

DYnie 1\1cmorial h1stice Assistance Cirnnt (Byrne··JAG) program, the State 

Assistance Program (SCAAP) and the BnHetproofVest Pmtnership (RVP) grunt 

program. With his 8ble leadership, we hope to preserve the.sc vital vrograms, 

The FOP is very proud oftbe. strong \vorking l'e~ationship that we have had with Eric 

Holder, not jl.ist for the two years he has served 8.R the nation's "top "but thT~mgh 

his long career service. As the hrother of a retired law eniorccmcnt Hnd one of 

tht: most and experienced law enforcement leU{k~rs) General Holder h<'!s heen a true 

:he FOP rmd to O'.-lr ll:J.tion~s r::mk-&nd-fllc officers, 1fI can be of ,my further 8s~istance 

this matter 0:- sham any .'id.llilional details about our reimionship \vith t1m AUmncy General of 

Depa!imcnt of J1lSticc~ please do not hesitate to contact me or Exec.utive Director Jim PaSGO 

ill my Washington nftice. 

rLJa.e. 

Clmck Canterlml')' :.. ~ National Pl'e~id,"lt 0 

cc: The HOHomble Chat'~cs E. Glft!Jsiey, RanKing Member, Commiace on 'the Judiciary, United Slates S~nate 
428 


74504E2-1.eps

May 6, 2012 

Committee on Ovcrsip,ht and Government Rcf(1rm 

U.S. House of Represenlatives 

2471 Rayburn House Ot1lcc: Building 

Wnshington~ D.C. 2051:'1 

SENT VIA FAX TO 202.225.3974 :: PAGES 

SENT VIA USPS TO ABOVE ADDRESS 

Desr Chninmm ISS,l and Representative Cummings: 

This letter is behalf of a number fellow SllTVivOfS and loved or.es of victims oflhe milSS 

shooling jn 'Tucson that took the lives people and \.-vounded others, in:..~1udi[lg your 

coHcaguc~ Congresswoman Gabby Giffords, 

\Ve are a diverse group off{epuhlicans, Imlcl',endel11s, I)crnocrnts, Q,11B Ov.'neT~_ business 

owners, a ~(:h!Jol counselor, h1.m1ers mtd a ofE{:':er. As diverse as 'we arc~ we are 

united by our deeply personal [<.:solve tn he a to stem 1he violence from ilicgal guns. In the 

and i1 half since Ihat borrible the of our lcgishtors ("ke even one step 

10 help prevent more senseless a disappointment to LlS .. it is a slap our 

collective faces. 

Tn Novembm' our "family" of TUC50n survivors, along with more Ibm) 50 other gun 

around the traveied to Washington to attend" Senate 

about the Tucson and legislation by Senator Chuck Schumer 1l18t 

ba,cklsrO'11l1,d check system - the very system that allowed lared 

lhw\lgh the cracks. We expecteli that every Senator would not only be hut 

a serious discussion ilbout ways to keep guns out of dangerous~ V,lrong 

secure the Second Amendment rights of law-ahiding people - it was 0 heartbreak and 

ciisappoinlInclnt1to 1eurn that "yas not the case, 

Instead, Senator Grassley chose to dismiss the reaSOll tor the bearing and llsed his time 

gU<;~tionillg a witness from the Obama Administralion about the "Fast and Furious" scandal. 

by 

exhibited disrespect 

on his Blackberry in,tead of my words. 

about "hi~h hi; had no ability to 

testimony abollt our horrible 

th~ lives of those murdered fhat January R, 

Another extreme to om Tucson "family" was tbe [uct lhat neither of the Arizona 

Senators could lake a minutes to meet wilh their OWn constituents about this deadJy serious 

matter. Instead, Senators KyJ sent several oYhis staffers to meet with us and McCain sell! a 

memher of his sraffta meet with us. After several later requests 10 he met with 

smTI.'; Qf us in Tucson. Even though \VC contirmc to makc~ requests 10 to nlcct 

with us, he continues to ignore om requests. Atkr our D.C. visit and om lack of response when 

we teturned hOOle, vve 'vere t~')rced to come to terms and adroit a f'act to oursclvesyou, our have little interest in and horror that 

future tragedies. We seemed only 
429 


74504E2-2.eps

}. 

6, 2()] 2 

Cotllmitlee 011 Oversight llnd Government Reform 

U,S, H,)llse of Representatives 

Chairmullls:m and Representative Cummings: 

ThaI hurtful episode was refreshed fby llS when we read of your plnn 10 spend more of your time 

and our precious tax dollars on contempL General Eric Holder about 

hew many IIFast and Fudousl1 QOC1JITlents he This 

prompts us fO resp'octfully giv\l you 8n opinion from 

violence, we have mourned the murder of Border Agent Brian Terry, 

hoped that not one other loved one should have to endure SIKh pain 

may have been kHled with n tbal AH allowed 10 fall lnl0 the 

wrnng that operation timt \Venl \'vTong. His deserves justice, and 

Our guvemmcnt needs to insure this kind "filling never happens again. understand 

safegllnrd~ have been put ill piace 10 achieve th~l, 

'Ne try not to your lnoti-'ves~ but as }\Tucrican taxpayers and victirns of gun vJDicncc\ 1-¥C 

feel we have right to question your prioLities, 

Sine" the first hearing \vith the General ''fast & Fmious" a year more 

than 31,000 Americans been v'lith guns. never know how 111;:tny 

could have been prevented with a better backgrow1d check system 'Q causc. by the 

lNay~ that \vbcl1 surveyed, Inost Am~ricans" including rnost gml cp,·vners., say they \vant. 

And )'ctJ while. cannot turn on our televisions vv'ltholl1 hearing about 'T'ast & FudouS,11 neither 

Concress nor the President have raken action to fix the This ill spite of the fad that 

background checks have ab,ollltdy j(l do with our Amendment 

of time, more than J 5,000 Mexican citizells have been munJercd, mostly 

assault rines rjt;ht here in the U.S. and trafficked south. Those guns 

11mill into our state of ArizGna and other citizens' home states, 

have been pr<;;venlcd with federal statute witl1 

oerious pcmllties for gun buyers. Bilt neitileJ you, our Pre~idcnt have 

laken a single slep to pass snch a law, 

Representative lssa, we understand that as Chairman of the Oversight Committee, is 

oversight Bul you are aiso a member onhe Judiciary Committec\ whidl over 

laws, We wi,h had used some of your obvious passion, intelligence and commitment to 

that the address the pathetically w\:uK gUll lavvs that are one orthe rcal causes of 

}\gCl1t Terry's death, one of the real causes of (lIlother 3] ,(lOO American deaths every year, and 

one of the real causes of 15,000 Mexican murders~ 
430 


74504E2-3.eps

Pngc 

May 6, 2012 

Committee Oil Oversight and Government Ret'orm 

LLS, House ofl~efJre~;enllatives 

Chai ('man 1ssa Representative Cummings: 

Whether Attorney Gcncrallloidcr has given) Oil enougb document:;, or the documents, 

beyond our scope of knowledge, But we do know that he to be the one loilktng about 

th" need for common sense gun laws, including a better bockground check system and tougher 

IRWS to fight gun trafficking, 

\Ve have a sincere, heartfelt and respectful reqlrest 

into "Fast & Furious," will you please, please, please 

When you llnish your investigation 

to <:ommit the same time, 

"Olamon-sense laws that the Second Amendment, 

ArnCl·ictlnS being killed with guns every 

We can only imagine how such actions 011 yom 

the outcome of our lives. We can hope and how such 

ACCP others from ever experiencing a simi lar repeat of our tragic, sad 

Congress on Your Corner. 

survivor 

fclizPJace 

Tucson, AI, 85704-&355 

520.797,3584 

vnnaisda(a:,aol.c.om 
431 


74504E3-1.eps

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-'-~- --._._, -,-~. :::::, 

,-

.. c-.

_-. __ ._--

,-- -'- _.- .... _-- --'--_. --.- -

''''' t ... ~.,,",p (.,..r ... "'. on ao4l ...d "_ ~91rtI 

Mn~ 7, 2012 

The Honorable Oll/TeJllua 

Chairman 

Commim,c on Ove-13lghl ami Go""mlncn( Refonn 

U. S. House "fRepll:SCntatives 

WashingTon, IX 20515 

DearChamn"n 1m: 

1~'I!<I.r."" ID:fMnl'_. ",,,,,w. ;Cj."".'t'I' .. 

On bchDlfofThc Lendership Conf=c on C;v,land Human R.ighlS. we wnl~ in 

response \0 a M~y 4, 2012 n:pqn in Th~ WII.!I'i~gl<l" Pm, IhRI you an'- prepIIring 8 

dtation "reon!em,,! Dg.,insl Anomey a"nernl Eric Hoklcr for f~ilinillo provide 

ll\fonnalion "cioled \0 IhI: "Fast and Fu,j"u~" pmgram. We an: deeply troubled by The 

prQ.'pI!CllhOi Ihe Allomey Gene",1 will be cited for conlcmpt by )'Qurcom mjtl~e. BW 

beU .. ~~ thn! Ju~h action IS unwnmmted. We urge)'l)" 11) =",;d.,,- that deci.ion, 

Whilc"'t believe thUI a review of the Fast and r,InOUS prulif~m is a 1~l:i im8le 

exercl5c [)f congressIonal authority, we afe concerned th"llht l<mOr and appl'OlI"h 

you ~rt taking dO<', a disserYic~ tl> Coogrcss, the Attorney General's office, ""d the 

puhlic, und may a)>l(ll>e a panisan . ncmptto discredit tht AUtmley Ge"crnL We are 

concerned thutthc C()nt~mpt !!treat IS "'tended 10 create 8 IImlil" cnvimnmcnl81mcd 

81 pressuring tIu: AtlOmey Genemll!) resign, 

The Auomcy General has ockoo ... loo8<'d prl)blem~ and naws in the Fasl and Furious 

program. AeC<)nJing l() reporu, tb~ AltOrney ",,"eral and Ihe Dcpanrnent of Justice 

hll~ sub,niued more Ulan 7000 P"8ts of dowment \(\ Congress, ""d llIe Anomey 

Geneml has appcartd before YOUTc<;"nrn;ll~'e a n:poned JeVen ,im.,;. The Depnnmc"t 

has also n:ponedly macie several ..:nior ollie .. ls avaIlable for tcstim~ny.ln crYiews, 

ond bncling.. 

In addition, the Altomcy G~ne11l1 has ordered the lnspeclor G~nernJ to Invesligale 

and has provided him with lens ofthousantls of addili!",,,l documen ~ocumcnls 

that would be in.pprnpriatc to lUrn over tn Cnngre.o;s, """ausc they rqIQf'Iedly include 

Inw enforc<mcnl infl)rmn!ion, gnmdjury tnmscripls. and I)lhe' ,nfornul\il)n lha! 

would compromise oogoinlllnvC!;tigatinns and prosec:utions. 

TI> I"'t it 5imply, the attempl 10 cite Ocn"",llloldcr forconlempt 'iC<.'IlU 10 I>c a rush 

10 judgment inlc~Kied to creale a stain On the office of the AuorneyGcnernl. It is 

cnntributing In all ellvironment of ~cc\lSllIOry vitriol and lnaligllum suspicion that is 

tJolh unwarranted 81111 " sig!lifieant distraction ntl lime when the Auorney Geneml 

needs In focus On the nution's core problems. The har:shncss orthe .\tacks 

lhnnoclves is misplaced, and to tlte eXlent Ihese auacks are intended 10 dlvcn the 

Aunrney Genc!1!1 froln the viK"rous enforcement ofthen.1lion's law!l--i..oluding 
432 


74504E3-2.eps

May? ZOl2 

rJ1;t'1<lf2 

lho~e prol~""linl!. eiy,( ril>hlll. voting rights. the .... vu·onmeni. Bnd Olrn:rcorc ccnt""ms--wc.n: 

deeply troubled. This develo-pm .... t is paniculurly disturbing because (Ifill" c~cmplaf)' fob the 

AttQrn~~ General h ... do,," in enforcing the natlo,, '$ eiyil nghts I"w~. 

Thcron~'ltu~ncjes that we "'pregcnt an: eager 10 see our lemlcrs focus on Job cn:."Ition, the 

c!!" 'mned n:,nY;go!1ttion nfoul t'C(loomy. and [lie rooting out of was, •• f","d antl Kbui!C. We urge 

you to r«01,.,\kr this CQurse ofactiun . Tlu",k you lor your C<J".ldcflI[,nn. Ifyo,j h.yc Itny 

qUe<ilons. please r~cI fr"" 10 cOnlttet SeniorCounscl LiiIR Bolllllt~'n al (202) 263·28S6 or Pohcy 

As..-.ciatc Sak, .. Conk ~t (2Q2) 263·2S94. 

Wade lh:ndersno 

Pres.dent & CEQ f~t- 1l~"""llyt: Vice r rcs,d.n( 

~;/t' 7 L/'---. 

• 

Judith L Lichllllrn 

Imerim Ch.ir 

Cc: The HOn(lrnblc EJojah Cu'nmlng~, Rilnbng Mcmbcr 
433 


74504E4-1.eps

.. CITY OF PHILADELPH IA 

May 09, 2012 

Repruentatiye Da"elllS5a 

2341 Rayburn Hou~ Office Suildln. 

WiI$nlnrton DC lOSlS 

Dea. Chal.man 'ssa: 

POLICE DEPARTMENT ~1.DOU •• ll", ' •• N. ~I ~ 'OU .. E 

'l""fL~ '. , .( Il'~.NI. " '" 

CM"lllU N. IIlMSU 

Ce .... l .. ,e~" 

I write 10 t!~ p.en my strone supportfo, At1o.nev General [ric Holde. ;lnd Ihe p.oe.en Ihal 

ills been mlde on behalf of law enforcemenl under his I ... ad~ ship of Ih Department of 

Justlt •. I am ntlemely conce.ned about tll.eills to ti nd Ihe Attorney General In contempt 

of Con •• e» , In Pillt, for his comm.ltment to p.otect from public disdosure , ny Inlg.matlon 

.elated Ig onllCllnl cflmlnilllnveHII~tlgns . 

IlIlwe known Atto,ney General Holde. for mo.e tllan 12 yeart. He is a man whom l.fUIIy 

adml'e f.,.. hb hL,h principals, inU..-ity and dewotioo 10 duty. 0...... Ihe nea,ly 9 years; Ihall 

nrvord IS Chief of Ihe Melropolitan Polite In Washln81on, O.c. , Attorney General Holder, 

as a fo,,,..,. Uniled Slales Attorney In D.C., p.oyld"d Inslah, whkh p,OY"d Invaluable In my 

"fforl$ to ImprOYe I .... ' Pe~rtme,," Whl .. 5""";"1 n I"",, First o..puty Attorney eeneral'o, 

then Attorney General Janet Reno, I ~uonally lf.es~d his rommitment to In.e men and 

WOm8n in law enforcement. I ulle,d upon him on numerous occasions concernln,luuH of 

impollan,,, to law enforcement alld hi "'liS alwDV$ Ine,e for us. After luvlnl Ihl AttGfI>ey 

Gene,a!', Office he conllnued to .UppO.1 bolillaw enf"tcement and his communlly by 

,eNln& a. Chairman of the Washll1Jlton D.C. Po!ke foundation, iI position he held for Oller 2 

Vilals. 

I u.,. you 10 eonilder the preulnl tte. ' that Amerltans ar" ~onr.ontln, uell and Ivery 

day. In 0. .... cIties, c.ime prevention and S ... pptHslon art our 1I"IIest priorities ilnd our efforts 

have been 3ided by Attorney Genc,~1 Holder's unw3VHln, support fo, our dep~rtml!nlS Ind 

ou.offluf$. Under Attornev Gencr;11 Holde •• I"" Departmenl 01 Juulee has p.Io.1t\zed 

support fOf , bole and local ~w "nl'orce"..,nl th'Olllh Improyemenl5 ln the COPS Hilln, 

PrO,'3m, the Atto.ney General's OffICI. Safety lnltlnM and Ih" VALOR P,o,.arn. Thtsl 

p'OIram. Insure that our departments Ind offlclf$ re(,,1Ye the fede",1 support that we ne"d 

In order to hep our communities Silfe . 
434 


74504E4-2.eps

Page 2 

Attorney General Eric Holder 

The ongoing Congressional inquiry to determine the facts in a tragically flawed operation, 

which spans at least two Administrations, is understandable. The inquiry, however, has also 

distracted the Department of Justice in its efforts to assist state and local law enforcement -

particularly in the area of violent crime prevention and suppression. Unfortunately, this 

inquiry has also been used as an attempt to tarnish the reputation of a man whose character, 

in my opinion, Is above reproach. This causes me deep concern. 

Therefore, I ask that you respect the Department's tradition of not making public any 

information related to ongoing law enforcement operations and reconsider your efforts 

to cite Attorney General Holder for contempt for standing up for this important principle. 

Sincerely, 

Charles H. Ramsey 

Police Commissioner, Philadelphia, P.O. 

President, Major Cities Chiefs Association 

President, Police Executive Research Forum 

cc: President Barack Obama 

Vice President Joseph Biden 

Senator Robert Casey, Jr. 

Senator Patrick Toomey 

Senator Patrick Leahy 

Representative Lamar Smith 

Eric Holder, US Attorney General 
435 


74504E5.eps

The 1i00000abie Darrell lISa 

Chairman 

Comml!!ee on ever.IEhland Government Reform 

U. S, Ho",e of Repre,entatiws 

W~ihlngton, DC 20Sl S 

Mav!J,2012 

OearChalrm.n Issa , 

Re«nl medlJ repofts h3ve indio;<l ted !hal you ~r e jlffparing to Issue a contempt <ltallon again'l Allo.ooy 

Ge..eral fric Holde. for allegedlv failing 10 p.ovlde informatloo rel;ued to the "Fast aM Furious' program, We 

believe thai \h~would be both an abuse '>f power and an unjuslif< ed use of IUch power. We appeal 10 VOu 10 

rt'Wn~der .llIch. blatanlly partisan pollll';3la<I, The Natlonll AClion N<'IWOf~ 1\ a civil rights organllation 

Ihat hu been dedicated 10 continuing the Dream of D., Martin L KIns.Jr. of an Ameflcilthal Iruly Ilves up tu 

1M Ideal 0/ one na!lon under God, ind,vt§lble, with LlberlV .od Jusllce for ;11, Toabuse li>e power given 10 

you a5 Chairman of lhe CommlUl'f! on Ow''''glu and Gove rn"",nt Reform offends the nation's desire for 

LibertV alld Jlmite for all. This iJe<:omes more pt'rlinent whl!l1 mo>l repartl Indicate that the DOJ alld 

Attorney Gefle<al Holder have disputed III e alle",lIo", of anv ra ure 10 comply With Ihe COmm'llee'! reQuom 

lar document! ane! informatlOfl lnde~," Is our underslandins Ihal lhe DOJ I>a~ Ind icaled Ihat theV ha.e 

turned over mo.l': Inan 7,600 pagel from nppro>dmalely 46 ~pa.a e production, gf docum~nls. tt b furthe!" 

rep,nled thallhe I\l\orn~vGenefal hal tesll~ed 10 Con8rl'S5 on the F~" and f U' fOU" pro8. m seven limes 

in the la,! year ~nd a hall, in addition to o~het mMlber5 ot DOJ h3vlng p'"",dt'<!lnformatlon 10 c<>ng.",,;onal 

invl'Sliga\ors. Mr. Chairman, the American people and the l,m!lle5 of tho,e. ..... 1'10 mav nave been ad.er5ely 

aflecled by any fallures of the "f all aM FIJ'le~s· program de5erve better. We hope thai you will recon,ider 

this misguided use ollMe legitimate po ..... e r 01 CongleS! to hole! those who wlll \ll~ and unjUStifiably 1.11 to 

cooperate In contempt of Congres!. 

Tha ~ vau lor vaur consideration , 

$i",erely, 

Tamllc;l 0 , MaUPr'I 

i--.. .I;':~ 1 , 

561 $tVI'M" Ave , t 4" Fl Ne ..... vo,~, NY 10018 

..... ww,nallon al!l:C!lonneIWOrk,nel 

646·380·2000 
436 


74504E6-1.eps

--'-

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=-~-

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--.----- .

-

-... ---- -'''''''- -

==::- --.• .. 

"::"=~. 

---_ . .:..~"';-

--------- .-

-'- ----' .. _. --

Ill. lu</o.<~ CDrIt. .. oa ..,Oi,' ..... _lIlglrl. 

The Ho"omble John n oeMcf 

Speaker of the IloII$<: 

U. S Ilou!iCof Rc-pre~nlll"'eI 

WashIngton, OC 10'15 

~ ~ak.,. Bochner 

,.,.,_ '101 ~"'. jJ"~ 

fl'll"ilo:r> ~).j.",.," • 

W'*"'l_ (.- ""',''II1',"rt<_1 ." 

, T" ............. 

-

On ~halfofThc l -'<:fSlllp C<>nfnmceon Civil ....... IIlIlI\IIn gb~ and 1hc 

Wllkrslgncd orgarlllat;ons, we IOInl .. in ltipo ..... 10 a May 21,2012 rcpon ... Po>Iuk'f' 

ihallM Housoo of Rcpn:$Cnlarivcs will V!)le 10 held lL ~ Citnet1ll Erk Jlokk. In 

conlemp' orc" I!"'~' ifh .. r.iI. III provideadd ,uOlI" ' j"formlHior. ",I.,cd to the "h~\ 

~nd FOlIOUs" proG!lIm. WI; ared~p y troub led by lh~ pl'1l.lpe~llhallh .. Allom~y 

OcnCl1lI will be c;le<! forconttmpl by !he H OII$<:. Mod btolieve ,ha' IUCh act;"n II 

unwllr1'Al1'ro. We UIlII: )'011 to r«OltJ>Mr 'hal deci~ion. 

Whilf. we bdi('Ve tNol D revlO,.'W (If the Fast and F'uOOUI fO<OlII'Im IS. kgllu\1,Ile 

c,ulrCl","of COllKR#ional.1I1honty, we are c:onco:.mcd thaI lhe I~rand IIpprtMo;h )'IN.'" rcpor1cdly takini do;>CS. di",,",,« LOConI~ 1M Atlom~ Gmmr.1'. 

offICe. and Lbc ~bli<:,.nd ""'y also be a partioan .tI~mpllI) <I;,o...,dn the i\ILOm<:)I 

Oenend. 

The i\LLmnc:y Gmera l haJ m:klll)w)ooged problem, and lIaw! in Ihe: Fa$L .,Id FUrLOUI 

proCI1Ull. Act<mi,ul' 10 rqlQrts. Ll~ Auomcy Ge11"",) and lILt DepoTun.,,! of JU'lIl.C 

Juve: submiued mon: IMn 7000 paile:< of doc:1Jmtl1l Il> COtijp"t$l. o.od the Auomcy 

CkGerai bas IlppC:8red bef'o", Congress on !hi! ISSUe • rq>Orled sevrn lima. Thr. 

O,,'partrnent has also fl'porleclly madesevcr.l xnioroffocials .vailablc lOt 'estimony, 

,ntenoiews.. ood bndinp 

In add,"o o, !he:AllI)mcoy G<:ntt1t1 ha;s onltn:d lhe 1rup«1OrGt:nCf81 10 ,"Ve:<II",t'" 

. nd h.$ provided him w,th IClUoflhousPnds ofaddihonal docummts--docum.nl~ 

th"l wou ld be iMppropnnle IU lum over to CongrtSl. beea ule: lbey rcponooly include 

law enfOf\:':mcnl ;nfunnal;on, Grandjury Irnnscnpls. "nd olher infQT11\8lion Iha , 

would comprOlmse ongoing mvc:stig.l;on. ~nd prolCCution:s. 

To pul ,I simply. the attempl 10 Ctlc: Go:oerai lioider for wntc:mpt.occms 10 be. nISI> 

Il> ]Udgmo:m imondcd lI) emile. 511'" 00 the offICe oftht ALlIJf1>C)'GI!I>ttBI. II" 

contriblitinllll) an I:nvironmaH of k<:USBlOr)' v;lriol lnd IIUIlignanl,u"I'",ion lltal is 

boIh \1IIW;imLDI .. 'It and I Ilgnirtcanl diSll1lCtion '" I ljm~ when tht Auomey GcrItntl 

",,"lI,1O focus on !he nl1ioo's C()R probkms. TIle Iwsl .... as of Ihe auacks 

th.:!n~lves is misplaced. and lI) the e~ttmll hae~lllCkl are illlmd<:d to d,v~n 1M 

Attorney General from lhe y.sm1lus cnfo.«menl of the""fion', IItw'l-includina 
437 


74504E6-2.eps

Mly29,2011 

PI~lon 

tho&c pro._mll CI,i] ngllls, voIllIII rip", d,sab.l i. yngll!~, • ..t OUlL'I'COrc conccm_ ... an: 

deeply troubh,d We arc concemed .hI • • ~oOn1mtp1lhmol I. ''''ended 10 Cn:alc ~ hoIIhlc 

c~w.runm~n' D;med., prt:5.Sunnalhc .... lIomcy Ge"""ullO resiSn, ThIS 1k"cIOpmenl's 

PIlnicularly dIsturbing bt:cd""'ofU.e~~c~"pla'Y jnb,he AlIomcy Ocne"'] has done .n cnforc'lIll 

'h~ n~"o"'J clv;) righ.s·law.l, 

The ton.;mueno;i,., .hlu W~ rq>fcsen1 nil c:o.gn ,,, .ott our I""ok" fo.: ... on,JOb croa'H;m, Ihe 

conlln~ reoll\';V1f'hoa of 011' CQ(Iooul)', lUId!he 100(1"11 OIl' ofwu.c, fl1lud ""a abu"", Wellrv 

you 10 rt:Q,~i""" ,h .. ~ 01 Kuon, 'ThInk)",,, r .... yow' CQnIIdCI1l'IOn, If you have Iny 

qUl':5ll0ll!l, Illnue feci free IOcontac. ScnriJI CO<IRScl Uu IkImslcm •• (m) 263-28S6 ur Pohcy 

Resar'l!h Ai\lIOClalc Sak.rI Cook., (202) 263-1894. 

Sinecn:ly, 

Afmn Anll:riCJlfl Mi", .. "", in .... cHon 

The Am,-'l"ican·AlHb Anlt-D",cnmina,ion Commu'e<: 

A!"SCM!! 

A .. "" Amer>ean JU>f]ccCnuor, mcmbl .. of A.IlI" Amcncan Ccnu~r lOt Advan.:.ng JU.lttCc 

The: l.eadmshlp Conferaw:c 0" C,V.l lnd Hilma" R. .ghlJ 

NAACP 

Nat,onal Auociauoll o( Hwn"" R.ight. W<lfkcn 

}I.hOMI AaIlCiallon o(Social Work« .. 

N¥'ior,al Cen,,,,. fo' nln~go:nd., &!UIIluy 

N,,,ollill Pann<nhip (0' Wllm~1I "nd ]>am.liQ 

Na.ional f .ir Housing Alliance 

1'Ia,i"nal Urb>m Lc~gue 

P""pk: for !he Am.rn.n W.y 

WQ,nm in fcdcnJ ..... w Enfun;c:r""'l' f<lllndrlliool 

Cc; The Honorable Eric ~1Of 

The 1I0MnIbJ.e Darrell 1_ 

"Iho llooo!11ble filiJw Cummings 
438 


74504E7-1.eps

June 7, 2012 

The HOllorable 10hn Bochner 

.speaker of the House 

U.S. Hou~e of Representatives 

Washington, DC 2051 S 

Dear Speaker Boehner. 

~ , • The Leadership 

Conference 

On behnlfofthe undersigned organizations, we write 10 e~pl"C!l5 our concern about media reports 

thai the House of Representatives plal1~ \0 cite AUomc)' General Holder for contempt. Thi~ 

action would unprccedemcd and unwarranted, Th~rer()rc. we urge you no! to take 3uctl a r(ldiea] 

step. 

During his tenure. Attorney General Holder has been a champion for civil rjghl~. voting righ\l;, 

consumcrprotections. and fair Hndjusl immigration enfo«:emcnl. Under his leadership the 

Dcpnnment of Justice has reestablished ill; reputation for fairness and integrity by increasing the 

Department's eITorts to combat human tmfficking; ensuring the rights of all Amcric~n$, 

including members nfthe mi!itPry and oven;cas civilians, to vote; negotiating settlements with 

banks that had preyed on Latino and African American homeowners: and, eha ll~nging 

discriminatory laws. such a, S.D, 1070 which unfairly tallle! Latino individuals and immigmnt 

communities. These issues imp~et the daily lives ofmilliolls of Americans and arc of pressing 

imponnncc. 

We undersllmd tharcenain members ofCullgress mBy want additional information from the 

Department of Justice; however, we would ask that you encourage those members \0 work with 

lhe Departmeilito obtain the information they seck. rather than rushing to cite the Anomey 

General ror contempt. If you have qucstions, please fec i f'n:e to contact Don Lyster with the 

National Immigration Law Crnte!" ~t 202-384-1279 or Lisa Bornstein with The Leadership 

Conference 011 Civil and Iluman Rights at 202.-2.63-2856. 

Sincerely. 

A. Philip Randolph Institute 

CASA de Maryland 

Center for Community Change 

CHTRLA - 'fbe Coalition for Humane Immigrant Rights of Los Angclcs 

Japallese American Citi:t.ens League 

Latino lu.tice PRLDEF 
439 


74504E7-2.eps

The Leadership Conference on Civil and I-Tuman Rights 

League of United Latin American Citizens (LULAC) 

National Association of Human Rights Workers 

National Association of Social Workel's 

National Fair Housing Alliance 

National Immigration Law Center (NILC) 

Poverty & Race Research Action Council 

Somos America Coalition 

United Food and Commercial Workers (UFCW) 

Cc: The Honorable Eric Cantor 

The Honorable Darrell Issa 

The Honorable Elijah Cummings 

The Honorable Nancy Pelosi 

The Honorable Steny Hoyer 
440 


74504E8.eps

i'll NATIONAL 

" " ... W 0 MEN'S 

LAW CENTER lXrJ\N[)I~(; Illf ~OH'II\.'II£S 

The l1 onorablc Llantllls$a 

ChlIinnan 

Comn,ilt~un Ov=igllllOnd (j"vcrnmenl Reform 

U.S tiOU5CorRep<nenIl>!,v(S 

Washi!l3lon, rx.: lOS I S 

0"". Chainn'n J",: 

I"",, S, ~0 2 

We are w.i1inlll'l:glU'ding rl:potli (MI you areprepannQ _ "ilPllon bolding AUowey OCReral Eri .. 

HulJer ,n conlompl of Coogrt:S' ifhe fai ls '" provido., iKlJilional inr()rm~lion robloro I<) the "r;ll\ 

and flll"ioUJ" prolfWn W. alC vel)' CQnc:eI'n...! by !.hit f"'IJ'PC'CI, and ... ". lllal no such C()fII~np( 

cilal1un be piotll<!Cd. 

l1w v(I~H)' imJ)l)l1.attl .~.pon.ibiJilies faeiUII Gct1<:ral Holdl;!" m.a><.e thll unf<ll1unlltc. course or 

~C!lO" pm,ic"llItly 'lnwis<: RM h.rmfu\ 10 Ihe "",mn. We hd~e,;o,n the m~jorerrons 10 p1'(>IO"\ 

women's Je!:lll righlS. and their "cry !ivt:~, cuncntly undcl'Wll)' by Attnmey General Holder. ruul 

lbc> JUlIlioco l>\'fIilnrnc./lI. FII' cx!\mple,!h<' Offl(:C on Viole".., A~1llI1 Women ha. mllll~ 

JUbs,anlbl roninooliollli in 1 ...... Jlhn 10 prc~ the CQlllllry' ll'C!p<>nSe to claim. of viclcnc.c: 

::gainst _no.:n and eh,W,m exposed to vi~. Tho: C;~U Rjtllts OJ'';',,,,, IIJIs ;nilia!t:d 

impor1~nt tB#S 10 protect WQnM:1\ ~1\lI1I"'- scJuallwllslIIMnt, inciudinll ~ua1 :uJlllit by 

midcnti.! l;ond!ol'lU and employ",.,. nnd;s mfo~ nl: thr law AgaiIISl I>uman lrIffickmg. These 

e;ocUlnples reflect the stake lool WUIt1<:n ,n thu ~~untry havt;n. viBO,ollll Jll5litc Del>arlm""t 

~rvjnll the f\lll ~llerH;o" (lra.IICI'lI! Ilol<k:r. 

We have r<:"O,,-Uy known.nd wortl'tl with Generli Holik. for man)' )'ClI11, end Iwy<: .. en 

firsthand hi. dedic.liQn tojUllicc lind tho: rule of law. ~~rtJ«, __ "'gII 1hat..1I)' tOll.<idcnWon 

..,f. CilllH)n \If oonlempt be dropped 

Sj!IC~fcIYI 

NDCfMO:nb 

"'til , .. low "",.... U40-. _ "'_ ..... -"" ...... 

I. 0.0,- ao.Jo .w-._ ........... DC ,_~ lOU".I'~ :01 ~'b'" • __ ..... 

(i) ...;/)10<0 
441 


74504E9-1.eps

<!:ougrelU'i of tIre ltlnitell stntc5 

i]lnsf,illl;liull. UtE 20515 

The Honorable John 1\. Boehner 

Speaker (lfthe House 

U.S. Capitol, Room H-232 

Washington, DC 20515 

Dear Speaker Boehner: 

June 6,2012 

We "''rite to express our collective concerns about unwammted mreats by the House Oversight 

and Govemment Reform Committee 10 hold Attorney General Holder in contempt of Congress. 

For over 15 months, the Depmlmcnt of Justice has cooperated with the Committee's inquiry by 

providing thousands of pages of documents, access to numerous senior Depamnent officials for 

testimony and transcribed interviews including the Attorney General, the fonner Acting Deputy 

Attorney General and current Chief of Staff to the Attorney General, the Assistant Attomey 

General for the Office of Legislative Affairs, and the Assistant Attorney General for the Criminal 

Division. Indeed, tlle Attorney General himself has testiJicd abont the matter in seven (7) 

separate hearings before various Congressional committees. 

These efforts arc clearly demonstrative of tllC great lengths to which the Department has gone in 

order to answer the Committee's legitimate ques:ions. To the extent questions remain, the 

Committee has yet to exhaust all available avenues for obtaining the answers it seeks. The 

Department's Office of the Inspector General is conducting a review of the matter in question 

and has not yet issueu its reporl--a review that you urged be completed before taking the step 

toward contempt whell the circumstances involved a Democratic House investigating a 

Republican Administration. Moreover, the Department has consistently expressed its 

willingness to work with the Committee to provide additional interviews, briefings andlor 

appropriate documents that address the Committee's outstanding qucstions. For these reasons, 

we believe that holding Attorney General Holder in contempt would be unwarranted. 

During his tenure as our Nation's top law enforcement oC11cial, Attorney Gl'neral Holder has 

been tireless in his pursuit of justice for all communities. Under his leadership, the Department 

of Justice has seen great success including protecting consumers from financial fraud, upholding 

civil rights and voting rights, affirming federal authority over immigration, and other areas of 

particular concern to the country's most vulnerable populations. It is the continuation of these 

efforts that should occupy the time and attention of the Attorney General. 

We are concerned that threats of contempt procecdi:Jgs would distract the Nation' 5 chief law 

enforcement officer from vigorously enforcing the nation's laws. 
442 


74504E9-2.eps

Our constituents expect Congress to work with the Attorney General and the Department of 

Justice to address the nation's ongoing law enforcement challenges. Therefore, we hope that 

will encourage ihe Committee to resolve its dispute with the Oepat1menl of Justice, 

resorting to a counterproductive contempt proceeding. 

Sincerely, 

Congressional Asian 

Pacific Americ0;111 Caucus 
443 


74504E10-1.eps

The Honorable Patrick}, Leahy 

Chainnan 

Committee on the JudiciHfY 

United States Senate 

Washington, DC 20510 

The Honorable DalTcll E, Issa 

Chainnan 

Committee on Oversight 

and Govcmmenl Refoml 

U,S, House of Representatives 

Washington, DC 20515 

The Honorable Lamar Smith 

Chail1na11 

Committee on the Judiciary 

U,S, House of Representatives 

Washington, DC 20515 

The Honorable Charles E. Gmssley 

Ranking Minority Memher 

Committee on the Judiciary 

United States Senate 

Washington, DC 20510 

The Honorable Elijah Cummings 

Ranking Minority :Vlembcr 

Committee on Oversight 

and Government RefOTm 

U,S, House of Representatives 

Washington, DC 20515 

The Honorable John Conyers, Jr. 

Ranking Minority Memher 

Committee on the Judiciary 

U.S, House of Representarives 

Washington, DC 20515 

Dear Chainnan Leahy, Chaimlan Smith, Chall111an Iss a, Senator Grassley, Congressman 

Conyers, and Congressman Cummings: 

The National Organization of Black Law Enforcement Executives (NOBLE) writes to express 

our unwavering support of Attomey General Eric Holder and the {J,S, Department ofJuslice 

(DOJ), and their commitment to enhancing state and local law enforcement. We me concemcd 

about reported threats to find the Atlomey General in contempt of Congress in part lor protecting 

infonnation related to ongoing criminal investigations from political interference and public 

disclosure, 

Creating safe and sccure communities through the reduction of crime and violence are our 

highest priorities, The DOJ has been an invaluable partner in creating safe and secure 

neighborhoods for both citizens and law enforcement professionals, For example, Attomey 

General Holder has launched the Officer Safety Initiative and VALOR Training Pn>gram that 

supports the safety of our officers and offers the promise of reduced officer injuries and deaths, 

Attorney General Holder has reinvigorated the DOJ, Civil Rights Division, and it is working to 

build climates of mumal trust and respect among citizens and law enforcement in a ffe~ted 

communities, Especially noteworthy has been Attorney General Holder's unwavering support 

tor the advancement offair and impartial policing practices and his unparalleled recognition of 

the clitkal importance of active community engagement and conmJUnity partnerships to 

effective law enforcement. These commitments have resulted in important gains in the delivery 

of puhlic safety services that must not be discounted, 

The DO] has implemented a number of refonns to improve the operations and effec.tiveness of 

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), The Congressional inquiry is 
444 


74504E10-2.eps

becoming un unneces,ary distraction, and an impediment to the vigorous enforcement of 

viol~'1lce and crime that are affecting far too many of [he nation's communities, 

We believe Attorney General Holder and the DOJ have been forthcoming with Congress in 

keeping the tradition and duty of ensuring that law enforcement operations are not undemlincd 

by political obstacles, Therefore, we respectfilUy ask that you re'pect the DOJ's responsibility 

and tradition of ,vilhholding infonnation relaled to ongoing law enforcement operations, rather 

than seeking to cite Attorney General Holder for contempt for standing up for this important 

principle 
445 

Mr. JOHNSON. And I yield back. 

Mr. SMITH. The gentleman from Texas Mr. Poe is recognized for 

questions. 

Mr. POE. Thank you, Mr. Chairman. 

Thank you for being here, Attorney General. I want to thank 

your office for the cooperation they have had on the specific issue 

of human trafficking, the new scourge that is happening in the 

United States. 

A recent Pew study has come out and said that there are approximately 2 million ineligible voters in the United States. Of that 

2 million, 1.8 million are dead people. I would assume you would 

agree that voter rolls, when verified that the folks on the rolls are 

dead, they should be purged in some manner. Would you agree 

with that or not? 

Attorney General HOLDER. Absolutely. I think the purging should 

occur. It just ought to be done consistent with Federal law. 

Mr. POE. Your office, how many specific cases have you prosecuted or your office has prosecuted on voter fraud since you have 

been Attorney General. 

Attorney General HOLDER. I don’t know what the number is. I 

know I prosecuted them myself when I was in the Public Integrity—— 

Mr. POE. Just when you have been Attorney General. 

Attorney General HOLDER. I don’t know what the number is. 

Mr. POE. Would the number be zero? 

Attorney General HOLDER. No. I think that we have had vote 

fraud cases I know that we have either settled through pleas—I am 

not sure if we have had trials, but I know that we have had cases 

where people have committed offenses where they made straw donations and other ways in which voter fraud was carried out. I 

know we have done those cases. I don’t know what the numbers 

are. 

Mr. POE. So that I know the exact number, because the information I have been given it is zero, so if you would provide me the 

actual number. I don’t need the cases, just the number of cases 

that your office has prosecuted under section 8 of the law. And let 

me know and the Chairman know the exact number, because, like 

I said, my information is there are none. 

Attorney General HOLDER. Well, I mean, our efforts to fight voter 

fraud, though, go beyond just section 8 of the NVRA. There are a 

whole range of other statutes that we use in those cases. 

Mr. POE. I understand. I would like to know specifically section 

8 prosecutions under your term as Attorney General. 

Attorney General HOLDER. We can wrap that into the larger—— 

Mr. POE. I am not asking for the other ones. Just to be specific, 

I am asking for the section 8 prosecutions by your office. 

Attorney General HOLDER. But just to be fair, to get a sense of 

what it is we are doing, as I said, we will give you that information, but as I said, I will give you a sense—— 

Mr. POE. You can give me more information if you wish, that is 

fine, just so section 8 is included in that. That would be great. 

Attorney General HOLDER. Sure. 

Mr. POE. The Mexican Ambassador to the United States recently 

has made comments about Fast and Furious that Mexico was unVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00451 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
446 

aware of—quote, ‘‘Mexico was never apprised how the operation 

would be designed and implemented’’; talked about the fact that 

Fast and Furious has hurt the relationship between the United 

States and Mexico. I am not surprised that he would say something 

like this. We constantly talk, as we should, about the Americans 

that were killed in Fast and Furious, but there were apparently, 

according to the Mexican news reports, hundreds of Mexican nationals killed because of Fast and Furious. 

The last time you were here, you answered a question and said 

more people will probably die because of Fast and Furious. Do you 

know how many people in Mexico have been killed as a result of 

the United States helping to facilitate straw purchases of automatic weapons going down to Mexico? Do you know how many? 

Attorney General HOLDER. I don’t know, but I would think that 

there have been some, and I know that, given the 64,000 guns that 

have gone from the United States to Mexico, that Mexican citizens, 

Mexican law enforcement officers have lost their lives as a result 

of guns that started in the United States, but ended up in Mexico. 

Mr. POE. How many of the guns have been recovered of the total 

number in Fast and Furious? You get different numbers. I have 

heard 1,200, I heard 2,000. How many guns have been recovered 

in Mexico that were the result of guns involved in the Fast and Furious operation? 

Attorney General HOLDER. I don’t know that number. 

Mr. POE. Any guess at all? I mean, that was the purpose, was 

it not, of Fast and Furious, to sort of keep up with the firearms 

when they go to Mexico, and see whether they were used in a crime 

scene, and then who the bad guys were? Wasn’t that sort of the 

purpose, veiled purpose? 

Attorney General HOLDER. That was the stated purpose as it was 

in Wide Receiver and the other—the previous attempts at dealing 

with the sold guns from the United States to Mexico, none of which 

were ultimately successful, and all of which allowed guns to be inappropriately put into the stream of commerce. 

Mr. POE. How many guns have been recovered on Fast and Furious? 

Attorney General HOLDER. I have heard different numbers on 

that as well, anywhere from 800 to 1,200. I just don’t know. I think 

we start off with a number of about 2,000 that were put into—inappropriately put into the stream of commerce, and then the number 

that was recovered, I heard 800 to 1,200, but I don’t know. 

Mr. POE. What would America’s reaction be if the roles were 

completely reversed; that if our neighbors, Mexico or Canada, they 

smuggled, facilitated the smuggling of automatic weapons into our 

country where Americans were killed and Mexican nationals 

killed? What would be our reaction to that as the head lawyer in 

the country? 

Attorney General HOLDER. Probably similar to what the Ambassador has said, though I do have to say that we maintain a good 

relationship with Mexico that operates on a whole bunch of levels. 

Certainly law enforcement is the one that I am most familiar with. 

I have a good relationship with the Attorney General in Mexico. 

We talk all the time. And we continue to work together on a variety of law enforcement projects and have not been deterred by the 

447 

fact—the regrettable Fast and Furious episode. But I can understand the Mexican Ambassador’s comments. 

Mr. POE. What are we doing to wrap the operation—I am sorry, 

Mr. Chairman, I didn’t realize. 

Mr. SMITH. The gentleman’s time has expired. 

Mr. POE. From the South we should get more than 5 minutes. 

We talk slower. 

Mr. SMITH. Why doesn’t the gentleman from Texas ask a question that he would like the Attorney General to respond to in writing? 

Mr. POE. I ask unanimous consent to submit—you mean ask the 

question or submit the question in writing? 

Mr. SMITH. I suggest you ask the question you were planning to 

ask, and we will get the response later on. 

Mr. POE. I will submit the numerous questions to the Attorney 

General, and he would submit back, if he would, to the Chairman. 

Thank you. 

Mr. SMITH. Without objection. 

Thank you, Mr. Poe. 

The gentleman from Tennessee Mr. Cohen is recognized. 

Mr. COHEN. Thank you, Mr. Chairman. And I will talk fast even 

though I am from the South. 

Mr. Attorney General, we appreciate your coming before us. In 

October 2008, the Department of Justice approved the merger between Delta and Northwest Airlines. The Department of Justice 

issued a statement, you may not remember this, quote, ‘‘The proposed merger between Delta and Northwest is likely to produce 

substantial and credible efficiencies that will benefit U.S. consumers and is not likely to substantially lessen competition,’’ unquote. 

Unfortunately that forecast has, in many people’s minds in Memphis in particular, proved to be grossly inaccurate. Many of the 

promises made by Delta in front of this Committee have been broken. 

As anybody in Memphis can attest, the price of flying out of this, 

quote/unquote, fortress hub is much, much, much higher than it is 

flying out of other cities. And you can fly to cities through Memphis 

at cheaper prices than you can from Memphis to X. If you go from 

another city through Memphis to the city, it is cheaper than Memphis to. 

This has caused the city the loss of conventions; the loss of businesses, who said, we left Memphis because the price of flight in 

and out was too great, so they move to Atlanta. A convention 

moved to Kansas City. Another group moved to Kansas City. 

The people in Memphis are very upset about this, and we have 

unreasonably high airfares. Memphis is not alone; Cincinnati lost 

their hub, and service has been cut in Minneapolis as well. 

Now that the merger in place, what type of enforcement mechanisms does your Department of Justice have to ensure competition 

or to try to get competition and break up what is in essence a monopoly. 

Attorney General HOLDER. Well, I think that we have been appropriately aggressive in our antitrust enforcement efforts. There 

are a number of cases that we have brought everything from eVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00453 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
448 

books to the way in which telecommunications industry has tried 

to consolidate. And in those cases where we have not brought suit, 

we have extracted from the parties who have sought to join promises or concrete divestitures of assets so that we would maximize 

the chances that the consumer would benefit. 

I think we have focused appropriately on what the impact will 

be on consumers, and I think that the—— 

Mr. COHEN. But in the airline industry have we done anything, 

because the airline industry has gotten to be basically three major 

carriers. They have divided up the middle cities, and the middle 

cities are hostages, they are company towns, and the people in the 

cities have to pay whatever they are charged. Can we do anything 

about that? 

Attorney General HOLDER. Well, I mean, there is a certain 

amount of consolidation that has happened in the industry that I 

think is necessary for the survival of those companies. But, for instance, you look at what Delta and US Air tried to do, a transaction involving LaGuardia Airport and National Airport here in 

Washington, D.C. We approved what they wanted to do in New 

York, and we have reserved decision on what they wanted to do 

here in Washington to see what the impact of these consolidated—— 

Mr. COHEN. If I could interrupt you, because our timing is limited. Washington, Los Angeles, New York, the big cities have got 

competition. It is the middle-American cities that are getting the 

brunt of this. Memphis is one of them. What can you do about 

Memphis, Cincinnati, St. Louis, Pittsburgh? 

Attorney General HOLDER. Well, I mean, what we can always do 

is to examine what the impact of these mergers has been, and if 

we find anticompetitive operations in a particular city—— 

Mr. COHEN. Well, then, can I ask you to look into Memphis and 

the situation there? Frontier Airlines came in; Delta came in, undercut them; Frontier left. US Air now is running Memphis, Washington. Delta is going to undercut them. Southwest is not looking 

to come in. We talked to Southwest. They said, if we come in, we 

are going to be undercut. That is monopoly. 

Attorney General HOLDER. I can’t comment on the particulars because I am not aware of them, but to the extent that one entity 

tries to undercut another inappropriately by lowering its prices and 

driving that competitor out of the market only to draw the competitor out of the market and raise its prices once the competitor is 

gone, that is inappropriate under our antitrust laws, and that is 

the kind of thing that would have an impact on consumers and 

that we would aggressively pursue. 

Mr. COHEN. Well, let me ask you to look at the situation in Memphis. That is number one. 

Number two, in Memphis, too, and I think I have written you 

about this, grocery store business, Kroger has come in and taken 

over the market. They bought out Schnucks. Then Schnucks took 

Kroger’s place—shops in southern Illinois. Schnucks has got an 

area of influence in southern Illinois they didn’t have because they 

swapped stores with Kroger. Prices have gone up. There is not competition there. 

449 

It is happening all over America. Business is finding ways to 

work with each other to create monopolistic practices and take advantage of consumers, and consumers are left off. It is what is happening. 

Income inequality, purchasing ability inequality, the middle class 

and consumer, they have got nowhere to go. The only hope and 

change they have got is with you and this Administration, otherwise big business is cutting them out. So I appreciate your looking 

into this monopolistic practices and looking after the consumer, 

which I know you want to. 

Attorney General HOLDER. Our focus is on the protection of consumers, and I think, as I said, that we have been aggressive. We 

put people to head that Division who share that attitude, and, as 

I said, I think they have done a good job. 

Mr. COHEN. Thank you, and I yield back the proverbial remainder of my time when I have none. 

Mr. POE. [Presiding.] The gentleman’s time has expired. 

The Chair recognizes the gentleman from Utah Mr. Chaffetz. 

Mr. CHAFFETZ. Thank you. 

Thank you, Mr. Attorney General, for being here. I would like to 

focus my comments on Fast and Furious. 

You stated in previous testimony here today that you had read 

the six wiretap applications. I, too, have read those wiretap applications. I come to a conclusion that is totally different than your 

conclusions. That is but, I think, a sliver of the information that 

we are looking at where a reasonable person would only come to 

the conclusion that the seniormost people within the Department 

of Justice did indeed know that guns were walking, that those tactics were being used. 

I guess my question for you, Mr. Attorney General, those things 

are sealed, those wiretap applications. Nobody wants to impede an 

ongoing investigation or hamper a prosecution opportunity. My 

question for you today is would you be willing to make yourself 

personally available to myself and to Mr. Gowdy and, in the essence of fairness, Mr. Bobby Scott and Mike Quigley to come talk 

to you, sit down, and I want you to show me how you don’t come 

to that conclusion, and I would like to show you why I think there 

is a preponderance of evidence that would lead one to believe that, 

yes, indeed, the Department of Justice did know about this. Is that 

fair? Could you make yourself available? 

Ms. JACKSON LEE. Mr. Chairman, a parliamentary inquiry. 

Mr. CHAFFETZ. No, I—Mr. Chairman, please. 

Mr. POE. She may inquire. 

Ms. JACKSON LEE. Mr. Chairman, I know the Attorney General 

is about to answer, but is it appropriate for Members to refer to 

sealed documents in this Judiciary Committee room and suggest 

that the Attorney General makes a personal visit to Members on 

what is sealed and should not be provided during a criminal investigation? 

Mr. CHAFFETZ. I simply asked again, please, Mr. Chairman, this 

does not count toward my time. I am simply asking, there is a dispute here. This has been going on for a year and a half. Most Members on this side asked about Fast and Furious. We are trying to 

resolve this, get to the end of it. It is hard to do in 5 minutes. I 

450 

am just asking for personal time to show you what we have seen 

and for you to share with us what you have seen. 

Ms. JACKSON LEE. Mr. Chairman, I again refer, these are sealed 

documents. I am trying to understand is the gentleman wanting 

the Attorney General to speak to sealed documents that have been 

leaked and then discuss it with Members while there is a pending 

criminal investigation? 

Mr. CHAFFETZ. I am not asking—— 

Mr. POE. The gentleman will suspend. The gentleman will suspend. The contents of the sealed documents may not be discussed. 

The gentleman may have his time back and—— 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. POE [continuing]. The remaining time that was been allotted 

to the gentlelady from Texas. 

Mr. CHAFFETZ. Is that a reasonable request? Will you sit down 

with us and talk about this? 

Attorney General HOLDER. Well, I don’t think that under the 

Federal law I have an ability to talk about, as the statute says, the 

content of the wiretap—— 

Mr. CHAFFETZ. Would you be willing to sit with us and talk 

about all the other pieces of evidence that aren’t sealed? 

Attorney General HOLDER. Well, I have sat down with you on 

eight separate occasions. 

Mr. CHAFFETZ. I am asking for more time to sit with you personally, more than just 5 minutes, and go through this in some depth. 

Give us 2 hours, two Members from the Democrats, two on the Republican side, and go through this. 

Attorney General HOLDER. You know, with all due respect, I give 

you 4 hours at a crack on eight separate occasions. I am not sure 

there is an awful lot more I have to say. But here is one point I 

will say. You and I have both read materials that senior people in 

the Justice Department, as they went through those data approval 

process, did not read. As we know—— 

Mr. CHAFFETZ. Let me go on, please. So the answer is no? You 

are eating up my time, and I only have about 31⁄2 minutes left. I 

would like more time. That is what I am asking for, and you are 

saying no. 

Attorney General HOLDER. But—— 

Mr. CHAFFETZ. Let me share with you why I think this is imperative. Sunday, October 17, 11:07 p.m., Jason Weinstein sends an email to James Trusty: Do you think we should try to have Lanny 

participate in a press when Fast and Furious and Laura’s Tucson 

case are unsealed? It is a tricky case, given the number of guns 

that have walked, but it is a significant set of prosecutions. 

James Trusty sends back to Jason Weinstein, it is not going to 

be any big surprise that a bunch of U.S. guns are being used in 

Mexico, so I am not sure how much grief we get for guns walking. 

It may be more like finally there are going to be people who sent 

guns—they are going after the people who sent guns down there. 

Now, you claim with passion that nobody at the senior levels at 

the Department of Justice prior to the death of Brian Terry knew 

that guns were walking, and I got an e-mail from Jason Weinstein 

using the term ‘‘guns walking.’’ 

451 

Attorney General HOLDER. I think we went through this exercise 

before. That refers to Wide Receiver, not Fast and Furious. 

Mr. CHAFFETZ. That is not what the February 4th letter that was 

sent to the United States Congress said. It said that the ATF never 

uses those tactics, never. 

Attorney General HOLDER. We said—— 

Mr. CHAFFETZ. And that is not true. 

Attorney General HOLDER. And we said that that letter was inaccurate, and it was ultimately withdrawn. But the e-mail that you 

just read, and this is important, that e-mail referred to Wide Receiver. It did not refer to Fast and Furious. That has to be noted 

for the record. 

Mr. CHAFFETZ. No, it doesn’t. It says ‘‘Fast and Furious.’’ Do you 

think we should try to have Lanny participate in press when Fast 

and Furious and Laura’s Tucson case are unsealed? It is specific 

to Fast and Furious. That is not true, Mr. Attorney General. I am 

happy to share it with you. 

I ask unanimous consent to give you some extra time to review. 

Attorney General HOLDER. That is fine. The Laura Tucson case 

refers to Wide Receiver. 

Mr. CHAFFETZ. It says ‘‘Fast and Furious.’’ We will let the media 

have it and play it out. 

Attorney General HOLDER. Laura Duffy was not involved—Laura 

was not involved in Fast and Furious. 

Mr. CHAFFETZ. The e-mail says ‘‘Fast and Furious,’’ and you say 

it doesn’t. I have got it in black and white. 

Did you personally read—— 

Attorney General HOLDER. I have superior knowledge. 

Mr. CHAFFETZ. Did you personally read Speaker Boehner’s letter 

spent to you on May 18, 2012? 

Attorney General HOLDER. Yes, I got that. 

Mr. CHAFFETZ. Did you read it? 

Attorney General HOLDER. Yes. 

Mr. CHAFFETZ. Have you personally responded to the Speaker? 

Attorney General HOLDER. The Deputy Attorney General responded. 

Mr. CHAFFETZ. So you delegated that to James Cole? 

Attorney General HOLDER. I didn’t delegate it to him. We 

thought it was appropriate for him to respond. 

Mr. CHAFFETZ. You didn’t think it was appropriate for you to respond? 

Attorney General HOLDER. No, but what I indicated in my opening statement and certainly willing to indicate right now, is that 

I am willing to personally engage with the four people who signed 

that letter and try to come to an accommodation so that we can get 

you the information that you need consistent with what I think is 

our need to protect ongoing investigations. I want to be as flexible 

as we can and, as you said, get to the—— 

Mr. CHAFFETZ. I have a hard time buying that when you won’t 

sit down with a guy like me—— 

Mr. POE. The gentleman’s time has expired. The gentleman’s 

time has expired. 

The Chair recognizes the gentleman from Puerto Rico Mr. 

Pierluisi. 

452 

Mr. PIERLUISI. Welcome back, Attorney General. I realize it has 

been a long hearing, and you say the eighth occasion on which you 

appear before us. As I stated before, the first thing I will say is 

that I have to commend your demeanor, your patience, your decorum in appearing before us and subjecting yourself sometimes to 

a process that I do not believe is fair. If anything, this Committee 

should always try to afford due process. And I just have to say that 

sometimes here you are interrupted in a way that is not deserving 

to the position you are holding. So I for one, I thank you. 

Now, as you probably expected, I want to complain a little bit. 

The familiar subject of my questioning is the Federal Government’s 

response to drug-related violence in Puerto Rico and the neighboring U.S. Virgin Islands. The murder rate in Puerto Rico and the 

USVI is nearly six times the national average, and nearly three 

times higher than any State. Most of these homicides are linked to 

the cross-border trade in illegal drugs, which is primarily a Federal 

responsibility to combat. 

During your previous testimony, you stated that drug-related violence in our Nation’s Caribbean territories is a national security 

issue we have to confront. You also stated that Puerto Ricans are 

American citizens who deserve the protection of their government. 

I know you and your team have been working to address this 

problem. You and the heads of the DOJ’s component agencies have 

always made yourselves available to talk to me despite your busy 

schedules, and I appreciate that. And there have been some major 

success stories in recent months, including yesterday’s FederalState operation which resulted in the arrest of dozens of our airline 

workers in Puerto Rico who were smuggling drugs on flights to the 

mainland U.S. 

Your men and women in Puerto Rico are doing terrific and courageous work. I hope you know that I recognize and respect that. But 

it is also clear to me and any reasonable observer that far more 

needs to be done. The CJS appropriations bill, which we approved 

recently this year, explicitly stated: ‘‘the committee is aware that 

efforts by Federal law enforcement to reduce drug trafficking and 

associated violence in the southwest border region has affected 

trafficking routes and crime rates in the Caribbean. The committee 

expects the Attorney General to address these trends by allocating 

necessary resources to areas substantially affected by drug-related 

violence and reporting back to the committee.’’ 

I wrote this very same week to the President asking him to direct ONDCP to prepare and publish a Caribbean border counternarcotics strategy, which would outline a Federal plan of action to 

address drug trafficking and related violence in Puerto Rico and 

the VI. ONDCP already does this for the southwest border and the 

northern border. 

So the first question I have is do you see any reason why 

ONDCP should not do the same for the Caribbean border? 

Attorney General HOLDER. I think that is actually a fair point, 

and it is consistent with what I testified to, I think, before your remarks that—my remarks that you referenced before. When one 

looks at the Caribbean, Puerto Rico in particular, I think we need 

to have a strategy. We have a task force, on Puerto Rico, that the 

453 

Associate Attorney General is one of the cochairs of. I think to the 

extent that it is not explicit, that we should develop such a plan. 

Mr. PIERLUISI. Thank you. 

My second question, and, Mr. Chairman, you know, I would like 

to be able to make my question and then get an answer even if my 

time expires. Quite a few of my fellow Members have had that 

courtesy. I hope you can extend it to me as well. 

Mr. POE. The gentleman just ask the question. 

Mr. PIERLUISI. Okay. The second question is, can you explain the 

concrete steps that DOJ has taken to strengthen its presence in 

Puerto Rico? Wouldn’t it be appropriate for DOJ to increase the resources it devotes to the island even if it is only a temporary surge, 

just as the Federal Government did when there was a spike in violence on the U.S. side of the southwest border. 

I know we are living in an environment of constrained resources, 

but I am talking about prioritizing the limited resources you have 

and making sure they are being allocated to the areas where they 

are needed the most. 

By the way—and I have the stats—DEA has increased its manpower, but the FBI and ATF have not in recent years. Shouldn’t 

you be acting with more of a sense of urgency in this area? Please, 

tell me why I should feel better about this than I do. 

Attorney General HOLDER. Yeah—— 

Mr. POE. The Attorney General will be brief. 

Attorney General HOLDER. Okay. 

Our law enforcement component’s ability to develop recruitment 

and retention incentives for agents who are willing to—who are 

stationed in Puerto Rico, retention is a really—is a unique problem 

that we have in Puerto Rico. But I think the issue that you raise 

about surges is something that we are starting to embrace. Because 

we have seen—although we have seen historic drops in the crime 

rate, we have seen hot spots, for lack of a better term, around the 

country. And what we are now doing is developing a capacity to 

surge agents and resources, money at times, to help local law enforcement into those hot spots. 

We have done it in a couple of cities in the United States mainland. We plan on looking at other places that we will. And I think 

Puerto Rico, given the homicide rate, the violent crime rate that far 

outstrips what is the national norm, I think Puerto Rico would certainly be a candidate for such a surge. 

Mr. PIERLUISI. Thank you so much. 

Mr. POE. The gentleman’s time has expired. 

The Chair recognizes the gentleman from South Carolina, Mr. 

Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. And I thank you for your 

great service to the great State of Texas as a Congressman and as 

a judge. 

Mr. Attorney General, I want to ask you about a comment attributed to you and then a statement issued by the Department of Justice. In a New York Times interview in December of 2011, you said 

there is a desire to, quote, ‘‘get at you’’ because you, quote, ‘‘consistently take progressive stands.’’ Shortly after that interview, the Department issued a statement wherein it said your critics, and I will 

quote, your critics ‘‘rightly view you as a progressive force.’’ 

454 

The common theme in both of those statements is an apparent 

belief that you are targeted because you are, to use your term, progressive. So I want to be really clear with you, Mr. Attorney General. I am not a critic of yours because you consider yourself to be 

progressive. I am a critic because I don’t think the Attorney General for the United States of America should have any political ideology whatsoever. You are the Attorney General for the entire 

country. Regardless of your political ideology or anyone else’s political ideology, you are the Attorney General for everyone. 

You are a former judge. You are a former U.S. Attorney. You are 

currently the chief law enforcement official for the United States. 

I don’t know what attracted you to the criminal justice system; I 

haven’t had an opportunity to ask you. I can tell you what attracted me to it was the notion of working solely for a woman who 

is blindfolded and carries nothing with her except a set of scales 

and a sword—no political ideology, no agenda, just a set of scales 

and a sword. And it is important to me that she doesn’t care about 

anyone’s station in life and she doesn’t care about their political 

ideology and she doesn’t care whether they are Black, White, 

Brown, progressive, conservative. It is just about the equal application of the law. 

And further in that interview with the New York Times, you singled out my colleague from South Carolina, Senator Graham, as 

someone who had good faith in his criticisms toward you. So my 

question—and then you suggested that others are motivated by 

something more nefarious—bad faith, a desire to get at you, a desire to do damage to the President. 

So my question to you is this: Do you think it is possible to be 

motivated by good faith and still ask who the senior-most-level officials within main Justice were who knew about the tactic of gunwalking prior to Brian Terry’s death? Is it possible for me to ask 

that question and be motivated by good faith? 

Attorney General HOLDER. Sure. I would say, you know, let’s ask, 

do you think John Ashcroft was a conservative? 

Mr. GOWDY. I don’t know Mr. Ashcroft. I will tell you who I do 

know, Mr. Attorney General. I know the United States attorney for 

the district of South Carolina. He was appointed by President 

Obama. He is every bit as progressive as you say you are, if not 

more so. And not only have I not been a critic of his, I have been 

one of his biggest fans because you cannot tell what his political 

ideology is from the way he discharges his job. So I don’t know 

John Ashcroft. I don’t know you. I know Bill Nettles, I know the 

United States attorney. 

And you can shake your head when I say that, but the truth is, 

you are the one who said you were being targeted because you are 

progressive. And my point to you is, I would be asking the exact 

same questions about Fast and Furious whether you were John 

Ashcroft, whether you were Dan Lungren, whether you were Bob 

Goodlatte. I don’t care about the political ideology of the U.S. Attorney or the Attorney General. 

Attorney General HOLDER. All I would say is this: The decisions 

that I have made in connection with anything that I have done in 

the Justice Department don’t reflect my political ideology. They reVerDate Aug 31 2005 12:22 Jan 09, 2013 Jkt 000000 PO 00000 Frm 00460 Fmt 6633 Sfmt 6601 H:\WORK\FULL\060712\74504.000 HJUD1 PsN: DOUGA
455 

flect my view of the facts, the law, and what my responsibility is 

as Attorney General of the United States. 

Mr. GOWDY. Well, then why did your department say that? Why 

did your department in December say that you were a target because you consistently take progressive stands? Do you think that 

is why I am asking you about Fast and Furious, because of your 

political ideology? 

Attorney General HOLDER. I have—I will accept that your question to me is one that is based in good faith. I am not going to 

say—I am not going to ignore reality and say that all of the attacks 

that have been directed at me have been those that are nonpolitical 

in nature or that have come in good faith. That is—— 

Mr. GOWDY. Can I be motivated by good faith—— 

Attorney General HOLDER [continuing]. Reality. 

Mr. GOWDY. Can I be motivated by good faith and still believe 

that you ought to have to show an ID to vote in South Carolina, 

just like you do to have to enter the Federal courthouse? 

Attorney General HOLDER. Absolutely. We can have a disagreement. You can operate in good faith and ask that question, as I can 

disagree with you in good faith and not have a political motivation 

behind my position. 

Mr. GOWDY. Well, Mr. Attorney General, you have a difficult job. 

But if you think that you are being singled out because of political 

ideology or race or any other characteristic or factor when it comes 

to Fast and Furious, you are sorely mistaken. I would be asking 

the exact same questions regardless of what party was in power. 

And, with that, I will yield back, Mr. Chairman. 

Mr. POE. The gentleman’s time has expired. 

The Chair recognizes the gentlewoman from California, Ms. Chu, 

for 5 minutes. 

Ms. CHU. Thank you, Mr. Chair. 

Attorney General Holder, before I begin my questions, I would 

like to take a moment to commend you for the progress that the 

Department has made on various issues. For instance, on intellectual property rights, you have made that a priority. It is very, very 

important for our economy. And I congratulate the Department of 

Justice on the groundbreaking case earlier this year where you 

charged seven individuals and two corporations for running an 

international organized criminal enterprise that was responsible 

for causing more than half a billion dollars in harm to copyright 

owners. 

And I also want to thank the Department for seeking to protect 

every American’s right to vote. During 2011, the Civil Rights Division handled 27 new voting rights cases. And with 176 bills introduced in Congress that are aimed at suppressing Americans’ right 

to vote, you are doing incredibly important work. 

I also want to applaud you for changing the material that the 

FBI had been using in their counterterrorism materials that had 

many inflammatory statements about Islam and offensive stereotypes about Muslims. And, in fact, the FBI has conducted the review of this counterterrorism training material that indicated factually incorrect information. 

And, earlier, Congressmember Franks said that these were statements that had to do with political correctness, but, actually, I 

456 

wanted to name some of the statements that were made in these 

training materials that were incorrect and, in fact, offensive. For 

instance, this one that was in the FBI manual: ‘‘Never attempt to 

shake hands with an Asian.’’ Or how about, ‘‘Never stare at an 

Asian.’’ I personally take offense at that, I must tell you. And how 

about this: ‘‘The Arabic mind is swayed more by ideas than by 

facts.’’ Or how about, ‘‘Traditional Muslim attire and growing facial 

hair is an indicator of extremism.’’ I think those are statements 

that had to be removed from those manuals. 

And my question has to do with the fact that a generation of FBI 

agents and Joint Terrorism Task Force members have been trained 

with these biased materials. What is the Department doing to 

make sure that those that have been trained with those materials 

don’t hold these kinds of stereotypes? 

Attorney General HOLDER. We have certainly removed those materials so that the training does not continue. And as people are 

updated in their training, we make clear to them that that material was inappropriately shared with them before. There are ongoing things that happen in the field offices to make sure that people 

don’t rely on the kinds of things that you have just read into the 

record in their enforcement efforts. So it is an ongoing thing. 

We understand that there have been certain agents who have 

been exposed to this, and we understand that it is our responsibility to make sure that—that information was incorrect, not politically incorrect, but it was simply factually incorrect—that we make 

sure that they operate only on the basis of factually correct information. 

Ms. CHU. I truly appreciate that. 

And, actually, I also wanted to talk about another issue, and that 

is the NYPD and the Muslim community. In August 2011, the Associated Press published an investigative article that described intelligence gathering by the NYPD of the Muslim community in 

New York. 

Thirty-four Members of Congress and over 115 community and 

civil rights groups have requested that the Department of Justice 

open an investigation on this issue. Has the Department of Justice 

begun a formal investigation into this issue? 

Attorney General HOLDER. Well, we are aware of the allegations. 

We have received, as you indicate, several requests to investigate 

the NYPD, and we are in the process of reviewing these requests. 

We are very far along in what I will call this preliminary stage, 

and I expect to be getting something, a formal recommendation, 

fairly soon. 

Ms. CHU. I would appreciate that, because we want to make sure 

that innocent Americans aren’t spied upon simply for eating at a 

restaurant or simply practicing their faith. And it is offensive to 

many. I always remember the fact that we had 120,000 Japanese 

Americans that were taken off to concentration camps based on allegations of spying, and yet, in the end, not a single case of espionage was ever proven. So we want to make sure that the rights of 

innocent Americans are protected. 

Attorney General HOLDER. Okay. Yes. That is our objective, as 

well. 

Ms. CHU. Thank you. 

457 

I yield back. 

Mr. SMITH. [Presiding.] Thank you, Ms. Chu. 

The gentlewoman from Florida, Ms. Adams, is recognized for 

questions. 

Mrs. ADAMS. Thank you, Mr. Chairman. 

Hello, Attorney General. Good to see you again. 

Attorney General HOLDER. Good morning—good afternoon. 

Mrs. ADAMS. Earlier, when you asked about when you became 

aware of the tactics of Fast and Furious, I believe you said it was 

the early part of 2011? 

Attorney General HOLDER. Right. 

Mrs. ADAMS. And how long after Agent Terry’s death were you 

made aware of the fact that one of those guns that walked was actually used to kill your agent? 

Attorney General HOLDER. I think roughly about the same time. 

I am not sure we have ever had a ballistic match in that regard, 

but I think I was made aware of the fact that guns found on the 

scene were from Fast and Furious. And I think that was about 

roughly the same time, sometime in February. I am not sure exactly when. 

Mrs. ADAMS. Would you consider that—because I am going to go 

back to your opening statement. You said during your opening 

statement about how you and your agency are working closely with 

all the agencies and that on the issues that apply to, whether it 

is the national security leaks, homeland security and all of that, 

you are working very closely. 

Yet you have an agent murdered, there are guns on the scene 

that come back to Fast and Furious, and it takes 1, 2 months before you are made aware of the fact that this has happened? 

Attorney General HOLDER. Well, you are talking about my personal knowledge. 

Mrs. ADAMS. Yes. 

Attorney General HOLDER. There were other people—— 

Mrs. ADAMS. You are the Attorney General, are you not? 

Attorney General HOLDER. I will stipulate to that. 

Mrs. ADAMS. You are our chief law enforcement officer. You have 

a dead agent—— 

Attorney General HOLDER. No, but I am saying that there were 

people in the Justice Department who were aware of the fact that 

those guns found on the scene were from Operation Fast and Furious. I personally did not become aware of that until February, but 

there were people in the Department, working with our DHS allies 

and people in local law enforcement and the FBI, who were aware 

of that fact, yes. 

I thought you were directing the question to just me as opposed 

to somebody else. 

Mrs. ADAMS. Well, you know, I have heard, I have listened all 

day long, and I listened the other day when you were here also, 

and every time when questions are posed about Fast and Furious, 

we always get a different timeline, or somewhat similar, or we 

have had a letter called back for inaccuracies months after it was 

delivered to us. 

So now we have you sit here and you tell us today in your opening statement how well your agencies are working together. Yet 

458 

you have an agent who is murdered, and it takes a couple of 

months before you are made aware, as the Attorney General, that 

the weapons that were left and allowed to gun-walk were used during this homicide. 

So I go on to, if we have all of this going on—and I keep hearing 

you go back to, well, in the previous Administration we did this or 

they did that. You know, I don’t really care what happened in the 

previous Administrations. 

What I care about is the fact that when I worked with agents 

in the previous Administration as a law enforcement officer, I knew 

that when they went to get a wiretap they had to produce the evidence of probable cause to their supervisor, who then had to sign 

off on that. So I listened today as you said, well, they just signed 

off on a summary. So are you telling me that your supervisors sign 

off on wiretaps based on summaries without looking at probable 

cause? 

Attorney General HOLDER. No, that is not what they do at all. 

They are satisfied, looking at the summaries that are prepared, 

that probable cause does in fact exist. But they do not review these 

things with an eye toward understanding the full panoply, the full 

scope of the underlying operation. 

They only make sure that, when we go to court, there is a sufficient basis for us to say that probable cause exists, that with regard to the telephone number that we want to get the wire on that 

we can say that that particular phone was involved in the commission of a crime, not the full extent of what Operation Fast and Furious was all about. 

Mrs. ADAMS. So, you know, you have covered a lot of different 

areas today. I am still waiting for an answer as to how so many 

thousands of guns walked. I have never been involved in an undercover operation that would allow such a thing to happen, and it is 

amazing to me that our own Attorney General’s office is the one 

who allowed it to happen. 

But then you go on to say that you have—— 

Attorney General HOLDER. I did not allow that to happen. And, 

in fact, as soon as I found out about it—— 

Mrs. ADAMS. It was your agency. You have control over that 

agency, do you not? 

Attorney General HOLDER. As soon as I heard about it, I instructed that that policy, that practice had to stop. 

Mrs. ADAMS. After the death of a—— 

Attorney General HOLDER. I was the first Attorney General to do 

that, and I did that. 

Mrs. ADAMS. You also talk about how your agency is working deliberatively on—and there was some information asked about immigration, and then you said, well, you know, we just need a comprehensive solution for immigration issues. 

Wouldn’t that solution be that you and your agency actually enforce the laws on the books that we have today? 

Attorney General HOLDER. We do enforce the laws. We are more 

effective than any—— 

Mrs. ADAMS. Well, I will just let you know that when I ask about 

criminal aliens that are released back into our—— 

Mr. WATT. Regular order. 

459 

Mrs. ADAMS. Because what we have is criminal aliens being released back into our communities because their home countries will 

not take them back. And I asked, well, do we ever file 243(d) paperwork? And I was told no. None during this Administration have 

been attempted. So I have concerns when I ask you about our immigration laws being enforced. 

The other thing before I go is I want to tell you this—— 

Mr. SMITH. The gentlewoman’s time has expired. 

Mrs. ADAMS. I will yield back. 

Mr. SMITH. Okay. Thank you, Ms. Adams. 

The gentlewoman from California, Ms. Sa ́nchez, is recognized. 

Mr. DEUTCH. I am next. 

Mr. SMITH. I am sorry, the gentleman from Florida, Mr. Deutch, 

is recognized. 

Mr. DEUTCH. I knew it wasn’t intentional. Thank you, Mr. Chairman. 

General Holder, thank you for joining us here today. 

As we are all aware, General Holder, a statewide purge of suspected ineligible voters is under way in Florida. Now, all voters 

benefit from voter roll maintenance efforts conducted with oversight, with accuracy, and with enough time to rectify mistakes. Unfortunately, the purge under way in Florida is nothing of the sort. 

A list of 182,000 suspected noncitizens has been compiled by 

Governor Scott’s administration. This list is so riddled with mistakes that Governor Scott’s own Secretary of State, Kurt Browning, 

objected to the list. Yet the risk was not reason enough for Governor Scott to stop. 

Cross-checking driver’s license data with State voter files was 

guaranteed to result in mistakes—guaranteed. Many legal immigrants who have become citizens are still classified as noncitizens 

in the motor vehicle records. But it doesn’t explain how a World 

War II veteran and Bronze Star winner from Davie, Florida, was 

listed. And it doesn’t explain how a Fort Lauderdale small-business 

owner was listed. It doesn’t explain the staggering rate of inaccuracy in just the initial stage of the purge. 

If the rate of inaccuracy in the initial 2,600 holds up for the remaining 180,000, then nearly 40,000 American citizens’ voting 

rights are at risk. 

And let me be clear about one issue: Everyone here agrees we 

don’t want noncitizens on the roll. I don’t. General Holder, you 

don’t. The issue is that this purge will remove thousands of legitimate voters. Why is there zero concern for these voters? 

Mr. Sensenbrenner earlier called this a model of due process. In 

fact, the letters going to voters say that they will be removed if 

they fail to respond within 30 days. The Governor believes that a 

failure to respond to a letter within 30 days is reason enough to 

lose your right to vote even if you are a U.S. citizen. Maybe you 

moved. Maybe you don’t read your mail. Maybe it got lost. Or 

maybe, General Holder, you are a different elderly veteran of 

World War II who received the letter the week that his wife died 

and threw it out because he didn’t have time to deal with the preposterous assertion that he is not a United States citizen. That 

happened, Mr. Attorney General. 

460 

Now, General Holder, I applauded you last Friday for requesting 

that Florida suspend this error-ridden, unaccountable, and illegal 

voter purge. The DOJ rightly pointed out that Federal voter laws 

prohibit voter purges within 90 days of an election, thanks to a law 

passed 2 decades ago. Because the closer you get to an election, the 

less time you have to correct mistakes—mistakes like 

disenfranchising voters. 

Now, I am aware the Governor responded to you late last night 

in a letter that showcases his Administration’s willingness to make 

up the law as they go along. And I know, Mr. Attorney General, 

your department will respond in detail in the coming days and will 

do everything necessary to compel Florida to comply with the law 

to prevent thousands of Floridians from being disenfranchised. 

But, finally, I want to give you a chance to respond to a letter 

sent to you yesterday by a colleague of mine. The letter reads that 

your department’s interference in this purge proves that you are, 

quote, ‘‘more concerned with protecting the re-election prospects of 

the President than with upholding justice and enforcing the rule of 

law, that you are actively working to keep noncitizens who have 

committed a felony on our State’s voter rolls.’’ 

General Holder, with 16 cases of voter fraud found in Florida of 

over 8 million votes cast in 2008, the assertion that voter fraud is 

an actually electoral strategy is preposterous and offensive. And it 

is condescending, because voter fraud would be a totally ineffective 

way to rig an election. It is rare because it is a felony that risks 

prison time and huge fines, and it is a totally illogical way to try 

to sway an election. 

You know what is an effective way to sway elections? Scrubbing 

thousands of legitimate voters off the rolls, eradicating voter registration drives, reducing early voting, and disenfranchising millions of seniors and impoverished Americans who lack government 

IDs. That is the tactic that Governor Scott and his ilk are using, 

not just in Florida but around the country. 

But maybe I am wrong, General Holder. Can you just answer 

quickly, is my Republican colleague right, Mr. Attorney General? 

Have I missed some grand conspiracy here? 

Attorney General HOLDER. I haven’t seen the letter, but that is 

not what motivated our action or will continue to motivate the actions that we may have to take. I have not seen the response from 

the Governor or the Secretary of State in Florida. But I will assure 

you that we will make sure that the Federal law is enforced and 

that voter purges happen in a way that is consistent with the law. 

I share your view that we do not want to have people inappropriately voting, that we don’t want to have voter rolls that contain 

people who should not have the right to vote. At the same time, 

we should engage in a process that does not put off the rolls people 

who have served their country as veterans, people who want to exercise that most fundamental of American rights. 

And so the notion that this is somehow a political ploy is inconsistent. One only has to look at the law, which is clear: 90 days. 

It is very, very clear: 90 days. 

Mr. DEUTCH. And, in fact, General Holder, then, it is possible 

that as the highest law enforcement officer of the land that you actually have real concerns about American citizens being 

461 

disenfranchised and that the United States Department of Justice, 

the U.S. Department of Justice actually cares about protecting the 

constitutional rights, the constitutional rights of American citizens 

that are now being threatened by this illegal voter purge in Florida. Isn’t that correct? 

Attorney General HOLDER. That is right. At base, we have to enforce the law, a law that was designed by this Congress, or its 

predecessor, to protect the rights of American citizens. That is 

what our action is all about, to protect the rights of American citizens. 

Mr. DEUTCH. Thank you. 

And I yield back. 

Mr. SMITH. The gentleman yields back his time. 

The gentleman from Arizona, Mr. Quayle, is recognized. 

Mr. QUAYLE. Thank you, Mr. Chairman. 

And thank you for being here, Mr. Attorney General. 

I want to get back to how the wiretap application is approved 

and the process that it is. You said that basically whoever it was 

just reads the summary, determines whether there is probable 

cause, and if there is probable cause, then they send it off to get 

approval by the courts. Is that basically what you are saying the 

process is? 

Attorney General HOLDER. Yeah, line lawyers in the Office of Enforcement Operations look at the affidavits, prepare a summary—— 

Mr. QUAYLE. Okay. 

Attorney General HOLDER [continuing]. That is then reviewed by 

a Deputy Assistant Attorney General, and then it goes to—— 

Mr. QUAYLE. So the Deputy Assistant is only looking for probable 

cause, is that what you are stating? 

Attorney General HOLDER. Right, to make sure there is a probable cause basis. 

Mr. QUAYLE. How is that true? Because under extensive requirements for Federal eavesdropping law, the Justice Department officials have a duty—a duty—to evaluate the law enforcement tactics 

that have been used in the investigation, why they aren’t going to 

actually make it so that we can have a further investigation, and 

why you need to have wiretapping put into place. 

We have Title 18 U.S.C., section 2518(1)(c), says that the application needs a full and complete statement as to whether or not other 

investigative procedures have been tried and failed, or why they 

reasonably appear to be unlikely to succeed if they tried, or to be 

dangerous. 

Now, we put these sorts of safe measures in place because wiretaps are extraordinarily intrusive. And so, probable cause being the 

only basis for putting the application is just blatantly—it is just 

false. I mean, unless your Justice Department was not living up to 

what is actually statutorily required for an application. 

Attorney General HOLDER. What you are saying is absolutely 

right, that, in fact, there is that requirement. And if you look at 

the affidavits and the summaries, you will see that there is a statement by the person who does the affidavit and the person who prepares the summary that, in fact, other methods have been tried 

and have proven to be unsuccessful. 

462 

Mr. QUAYLE. So you are saying that they did know about—see, 

this is what I am trying to get at, is, did the Deputy U.S. Attorney 

who actually signed off on these wiretap applications, did they actually go through and understand what the tactics that were being 

used, since then they would actually know at the time of reviewing 

those, because you said that all they were looking at were the summaries and looking for probable cause, when, actually, they would 

have to be looking for the tactics, why they failed, and why you 

needed to have eavesdropping going forward. So that would mean 

that they would probably have that information a lot earlier than 

when you said earlier. 

Attorney General HOLDER. But you are looking at the tactics that 

were used in order to try to surveil people. All right, that is what 

you are looking for in terms of these tactics. It doesn’t mean that 

you are looking at every tactic that was used as—— 

Mr. QUAYLE. But it is part of the whole operation, though. But 

the investigation, for the operation of what they were trying to accomplish, you are using various different tactics. It is not just for 

surveilling, it is for the whole operation. 

Attorney General HOLDER. And what I am—— 

Mr. QUAYLE. And so the tactics actually are part of the application, why they failed, why you need eavesdropping. So the Deputy 

Attorney actually knew about the tactics even though you have 

been saying all along that you didn’t because you only had the 

summary and you were only looking for probable cause. 

Attorney General HOLDER. I have looked at these affidavits, I 

have looked at these summaries. There is nothing in those affidavits, as I have reviewed them, that indicates that gun-walking was 

allowed. Let’s get to the bottom line. And so I didn’t see anything 

in there that would put on notice a person who was reviewing, either at the line level or at the Deputy Assistant Attorney General 

level, you would have knowledge of the fact that these inappropriate tactics were being used. 

Mr. QUAYLE. Are you saying in the summaries or in the whole 

affidavit? 

Attorney General HOLDER. In affidavit as well as—— 

Mr. QUAYLE. In whole. So there were no comments about the tactics of gun-walking within the whole affidavit. Or are you talking 

about the summaries? Because there is a clear distinction between 

the two, and if you are saying they are only relying on the summaries and not the whole affidavit—but then you would have to go 

to—actually, then, would it be an untrue affidavit to go get wiretaps if they didn’t include the gun-walking? I mean, is that lying 

to the court on the tactics that were being used during the operation? 

Attorney General HOLDER. I mean, we have to speak hypothetically here, okay, because we can’t talk about the—— 

Mr. QUAYLE. I understand that, but hypothetically—so, I mean, 

I am just trying to get down to what the process was, because it 

seems to be a little misleading from what you have said and what 

Mr. Breuer said in the past, that it was only for legal sufficiency 

or probable cause in this instance, from your perspective, when in 

actuality the statutes that govern this, especially with Federal 

eavesdropping, are much more strict and require much more proof 

463 

that Federal eavesdropping and wiretapping is necessary to actually go through with it and get the court order to do it. 

Attorney General HOLDER. These statutes do not require the degree of specificity that you are implying. They do not require you 

to go and describe all of the things that you have done during the 

course of an investigation with the degree of specificity that you 

are implying. That is not accurate. 

Mr. QUAYLE. What degree of specificity do you think that I am 

implying here? I mean, you have to go through what the procedures are, what the tactics were. I mean, I am not trying to say 

that you need to put down every serial number of a certain shoe 

that somebody was wearing while they were surveilling somebody, 

but the basic gun-walking is a pretty big piece of the tactical operation in Operation Fast and Furious. 

Attorney General HOLDER. Well, again, I can’t get into the content of the Fast and Furious wiretaps. I am prohibited from doing 

that under Federal law. 

But I can tell you that the notion that you are pushing, and you 

are pushing incorrectly, it does not require that degree of specificity, granularity, to appropriately put together an affidavit and a 

summary that can go to a Federal—— 

Mr. QUAYLE. But it provides more than probable cause, which is 

what you were saying earlier, and it provides more than legal sufficiency, which was what Mr. Breuer was saying earlier. 

Mr. SMITH. The gentleman’s—— 

Attorney General HOLDER. Are you going to ask me a question? 

Mr. QUAYLE. My time has expired. 

Mr. SMITH [continuing]. Time has expired. 

The gentlewoman from California, Ms. Sa ́nchez, is recognized. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

And, General Holder, thank you so much for joining us here 

today. I know that it is an important responsibility of your office 

to submit to this Committee’s oversight, and I know that you would 

agree that this is an important role for our Committee to play. But 

it can’t be easy—I feel your pain—to sit in front of us for such a 

lengthy period of time and answer questions about the many different areas under your purview. 

So I am going to apologize—I come toward the end—if some of 

my colleagues have already bent your ear on this topic, but I would 

be remiss if I didn’t bring up the recent changes in the Department 

of Justice policies regarding the reimbursement to local governments under the State Criminal Alien Assistance Program, known 

more commonly as SCAAP. 

As I am sure you are aware, SCAAP permits States and localities 

to seek reimbursements for the cost of detaining deportable immigrants charged with a felony or two or more misdemeanors. Deportation is a Federal responsibility, and SCAAP is a program which 

acknowledges that our overburdened local law enforcement facilities shouldn’t have to bear those costs without some kind of reimbursement or recompense from the Federal Government since it is 

the Federal Government’s responsibility. 

Shortly after I was first sworn in as a Member of Congress some 

10 years ago, local police officials came to me and explained how 

a change in the SCAAP funding rules was having a very profound 

464 

effect on their budgets. And the 2003 SCAAP reinterpretation, in 

which States only receive reimbursement if a criminal alien is convicted of a felony or two misdemeanors and the arrest and the conviction occur in the same fiscal year, which is an odd and interesting requirement, has had tremendous repercussions throughout 

the law enforcement community, particularly in my State of California. In California, SCAAP reimbursement payments have declined from $220 million in fiscal year 2002, prior to the Department of Justice reinterpretation, down to $112 million in fiscal year 

2009. 

And for 10 years now in Congress, I have been working with colleagues on both sides of the aisle—it is a bipartisan issue—to try 

to help Justice recognize the need to return to the original congressional intent of this legislation. The police departments and sheriff’s departments in my State are already having to do more in 

terms of deterring crime and protecting constituents with less. And 

this reinterpretation of the SCAAP reimbursement really hinders 

their ability to do that. 

They are trying under very difficult budget circumstances to do 

an incredible—and they are doing an incredible job. But, you know, 

they keep asking me, what is the Federal Government going to do 

about SCAAP reimbursement? And I would love to be able to tell 

them that the funds that they desperately need are going to be 

coming. 

But last month I was just dismayed to find that your department 

further reduced the reimbursements under the SCAAP program, 

which has the effect of only further increasing the pressure on local 

law enforcement and making their jobs that much harder. This 

change is not only going to—would only reimburse State and local 

law enforcement if they are holding a known inmate already in 

ICE’s database. 

And I just want to bring your attention to a letter that I have 

from the California State Sheriffs’ Association. 

And, Mr. Chairman, with your permission, I would like to enter 

it into the record. 

Mr. SMITH. Without objection. 

[The information referred to follows:] 

465 


74504F-1.eps

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I!Cll lifcl l'nill g.,tate §Sheriffs' ali'socil1tion --.... -~ " .. PM": MJly 29, 20 12 

To: Call!bmia Congresslonru Delegntion 

nle Honora!>]" DiatlllC' F.imlein, U. S. Senator 

The ono~bk Barb~f1l Boxer, U. S. Stnllor 

From: Sheriff Keith Royal, CSSA Presi~nt 

Sheriff Raben Doyle. CSSA lA:gidalive Cumminee Cffioir 

R.: CSSA Ull'" R..v~ ... of 0 01 n ecision Ie SCAAI' aDd ~Unknow n In _ les" 

On behalf oflhe Cali~~mi.;t Slate SIII.'Jifi's' AMOciation (CSSA). whi<:h "'Presents tile 58 

cl~lcd Sl!ffiff$ of C,,]ifumia, we wril. to urge your immcdiale help m m'Crnng _ 

decision by the Depallmcnt of JUSlic.: (DOJ) th;tt will cripple.he Slale Criminal Alien 

Assilt~nce. Progr:Im (SCAAP) ~lId place a significa llt fin:mcial hardshIp 011 California 

j)i\S. 

The Depa~m of Justice announo:d ~ ch.anJ)C ill th~ SCAAP program On May 23. 

2012 thaI will prolullil SCAAP funds fiom being used to reimburse localities for 

foreign-bom cnminal aliens housed in Iheirjail$ lhal h~Vi' bc><'n (:ia.,if",d as "unknow" 

inmal~'· by ICE. This ill·advised programmatic cha~ wlluld dramatically weaken 

SCAAP by limillr\S payment strictly 10 "known"" inmalQ thai an pn:~n~y in !(lE's 

computer tLo.tabul'. 11 ;should also be nOlell lhat DOJ did not rouow I!5lablished 

pm.:cdures for ma1<m.lj changes 10 thl' SCMP prognm, thul calling inlO question the 

validity of Ih~ Chingt. Should Ihil be enatt~, California Shenfll would 10K millions 

of doUan for thl' inca.n.-o:rnllon COSt< for criminal aliens due to )he Feder.ll 

Governmtnt'5 inabilitY to propt'rly apprehmd, lael< and docummllh..., individual! . 

Ba~d on a ll)ll} vl'mng report issued by DOJ, this payment change would have cui 

over SI8 miUion In 2010 SCAAP piymenlllO California Sheriffi. 

As we Ire lure you all' aware. Ihe vast majolity of~legal aliens residing ii, lhe Uniled 

Siales are. O(ll o f]lcially "known·· 10 the Federal Govemmem and thus this proposal 

would l";P!'le Ihe SCAAP program and funher shift Ihl' linanciaJ burden of housin8 

Ih ... e mminal alien.l ~ Our localil;"'. 

i h= '·unknown" cr.tm;nal all<"n~ , many of whid! ctlmmmed violent cnm~ ill our 

communities, were born outside Ilfthe United SllIln and lad:: llIe documentation 10 

.1I0w Ihey are legally in [lie Unlled Slales. l!owcver, bcca.u ... ICE was not aware IhC!Y 

had ilIl'galJy entered the United Slatn, Ihe Deputmenl of Justice, wilhoul Ih~ 

approVllI QfCongJe.ss, has unilat<'l"alJy implemented a cha nge that will deny California 

(and every other stat ~) lhe abmty 10 secure pill1lal reimbul'lemenl for inClU«l'lItion 

com by removing the '·unknown" paymenl e.1leJ;OI)'. 
466 

Ms. SA ́ NCHEZ. It suggests that if your department had made this 

change in 2010, it would have reduced payments to California sheriffs by an additional $10 million. And that is already on top of the 

50 percent cut from 2003 to 2009. 

And I just want to quote a section of this letter, since I think 

that the California State Sheriffs’ Association summarizes this 

issue very accurately. They state, and I am quoting, ‘‘The Federal 

Government must uphold its responsibility to the facilities that 


74504F-2.eps
467 

hold criminal aliens and not allow changes that would weaken the 

funding provided for SCAAP.’’ 

I hope that you will give this issue more thought and much more 

thought to the impact that this change is going to have on law enforcement communities across the Nation, not just to mention 

southern California. And I hope that you will reconsider this decision and consider rescinding it. 

I just wanted to make you aware of that issue. I will be following 

up with your office, and I hope that we can work together to try 

to ensure that local law enforcement entities will be properly reimbursed for the great job that they do in trying to protect the public 

safety. 

And I guess I will just allow you a brief comment and then yield 

back to the Chairman. 

Mr. SMITH. Yeah, okay, thank you, Ms. Sa ́nchez. 

The gentleman from Arkansas, Mr. Griffin, is recognized. 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

Thank you, Mr. Attorney General, for being here today. 

I want to ask you if you are familiar with the Olmstead case that 

deals with disability law. Are you—— 

Attorney General HOLDER. Yes. 

Mr. GRIFFIN. Are you prepared to speak about that today? 

Attorney General HOLDER. Well, I mean, I am not an expert on 

it, but—— 

Mr. GRIFFIN. Okay. Let me ask you a few questions about it. 

In my State, we have a number of homes, institutions, for the developmentally disabled. And around the country there have been a 

number of lawsuits against some of these homes alleging violations 

of civil rights. And, in some instances, these lawsuits are filed with 

the view that the Olmstead case contemplates a structure where 

the institutions sort of are phased out and that individuals who are 

disabled—intellectually disabled, developmentally disabled—those 

individuals are moved into more community-based care. My State 

has been, in Arkansas, has been the subject of some of these lawsuits. 

First of all, I wanted to ask you, do you believe that the 

Olmstead case requires a movement away from institutional care 

for the developmentally disabled, or do you believe that these institutions can exist within the Olmstead framework? 

Attorney General HOLDER. As I said, I am not an expert on 

Olmstead. I am familiar with what the decision talked about and, 

you know, unnecessary institutionalization, how that clashes with 

the ADA. You are asking a question that I think is just beyond 

my—— 

Mr. GRIFFIN. Okay. Could I get something in writing on that? 

And let me continue a little bit. My concern is that those who 

are implementing—and I understand it is many levels below you. 

My concern is that some in the Civil Rights Division and the Special Litigation Section at DOJ are pursuing—and, to be fair, some 

of this litigation began in the last Administration, so this is an ongoing problem. 

But my concern is that there are some who read the Olmstead 

case as, if not requiring a move away from institutional care, at 

least somehow endorsing the move that those at DOJ have—some 

468 

at DOJ have advocated for. And my reading of—well, I think anyone’s reading of the case, the actual case, demonstrates that that 

is not what the case contemplated; that the case made it clear that 

segregation of those with disabilities will not be tolerated but that 

institutions could be a part of the solution there. 

And, in fact, the opinion, the plurality opinion said, and I want 

to quote this to you, quote, ‘‘Each disabled person is entitled to 

treatment in the most integrated setting possible for that person, 

recognizing on a case-by-case basis that that setting may be an institution.’’ 

And so, if you could get me some answers on that, that would 

be very important to me. You know, the lawsuit that was filed in 

Arkansas was eventually dismissed for lack of evidence presented 

by the Department of Justice. And, unfortunately, it cost the State 

of Arkansas and the development center that was involved $4.3 

million to litigate that. And, in the end, it was dismissed for no evidence. 

I won’t go into the details here, but I will just tell you, in a small State like ours and with an institution like this, $4.3 million was 

a significant sum of money. And, in fact, timber had to be sold, 

mineral rights had to be sold, et cetera, to help fund this litigation, 

which was then dismissed because DOJ had no evidence, or did not 

have sufficient evidence. 

So if you could get me just your views on that, I would very 

much appreciate it. And I thank you for being here today and listening. 

Attorney General HOLDER. Yeah, I would be glad to do that. I 

think that the underlying material that you have shared with regard to the disposition of those two cases is accurate. And so what 

I will endeavor to do is to respond to the questions that you have 

put to me, and I apologize for not being able to answer, based on 

that correct factual assertion that you have made. 

Mr. GRIFFIN. Thank you, sir. 

Mr. SMITH. Thank you, Mr. Griffin. 

The gentleman from Florida, Mr. Ross, is recognized. 

Mr. ROSS. Thank you, Mr. Chairman. 

And, Mr. Attorney General, thank you for being here. I guess the 

benefit of having me question is you is I may be the last one. 

Thank you for your patience today. 

I want to ask you a couple of questions. The House Committee 

on Oversight did receive six wiretap applications that it reviewed. 

It is that Committee’s contention that those applications contained 

detailed information about Fast and Furious and gun-walking. 

Now, it is my understanding you have reviewed those applications since your last testimony. Is it my understanding that you 

take issue as to what these applications actually detail as to 

whether Fast and Furious existed or whether there was any gunwalking? 

Attorney General HOLDER. Yeah, I mean, what I would do, again, 

because I can’t talk about the contents, I would align myself with 

the letter that—— 

Mr. ROSS. Is that James Cole’s letter? 

Attorney General HOLDER. No, the letter that Congressman 

Cummings set out—— 

469 

Mr. ROSS. Okay. 

Attorney General HOLDER.—I guess a couple of days or so ago, 

as he went through his analysis of that same material. I think that 

his perspective is the correct one, as opposed to what Chairman 

Issa—— 

Mr. ROSS. And since then, my understanding is there was a letter January 27th of this year to Chairman Issa from Deputy Attorney General James Cole that indicated that changes had been 

made. Two of those changes included the Department of Justice 

has changed its way of response to congressional inquiries, and it 

has also changed the internal process for wiretap reviews. 

In fact, your office has tripled the number of attorneys now reviewing wiretaps; is that correct? 

Attorney General HOLDER. That is correct. 

Mr. ROSS. Is that an indication that what was done before was 

done inadequately and inappropriately? 

Attorney General HOLDER. No, it was actually in response to office visits that I was making where people were saying it was taking too long for them to make requests in the field and to get them 

processed in Washington and get the approvals back into the—— 

Mr. ROSS. So it has nothing to do with another level of review 

to make sure as to the accuracy of the content? 

Attorney General HOLDER. One of the changes actually does, 

when we now require somebody in the field, a supervisor, to look 

at the affidavit and the application that is sent to Washington. We 

now require a supervisor to look at that. That was not a requirement before. And that is to try to make sure that we have better 

accuracy. 

Mr. ROSS. And, as I understand it, according to—on Tuesday, you 

have a spokeswoman, Tracy Schmaler, who issued a statement that 

says, ‘‘The review process for wiretap applications is limited and a 

specific assessment of whether a legal basis exists to support a surveillance request. The review process is not an approval of an operation.’’ I am sure you agree with that. 

So the sufficiency of it, then, has nothing to do with what may 

be alleged in there. For example, hypothetically, if there was a 

human trafficking operation going on and the wiretap was being 

requested for that, at what point do you just not look at the legal 

sufficiency of whether the requirement is met for the wiretap? At 

what point do you do something to stop the actual operation that 

is being asserted in there? 

Attorney General HOLDER. Well, I mean, when you get these affidavits, they are pretty broad-ranging. They describe in pretty good 

detail what is going on in an operation. But they don’t go into all 

of the—as I was explaining to go Mr. Quayle, they don’t go into the 

nitty-gritty of everything that is going on in connection with an investigation. 

If, for instance, an affidavit did contain—and we are talking totally hypothetically here—— 

Mr. ROSS. Right. 

Attorney General HOLDER [continuing]. If an affidavit did contain 

some indication that trafficking was going on, that young girls 

were being tortured or something, or that guns were being 

walked—— 

470 

Mr. ROSS. Right. What I am getting at is, we now have in place 

a process in reviewing these wiretap applications that will prevent 

another Fast and Furious; is that correct? 

Attorney General HOLDER. I think we do with regard to that supervisory level. This is always assuming that the people who are 

working on the affidavits are sharing all of the information. 

But it is not—but we shouldn’t have that on the basis of just 

wiretaps. I mean, given the policy pronouncements that I have 

made and the changes that I have made, I think that is the primary reason why we should not have a repeat of Fast and Furious. 

Mr. ROSS. And believe me, I would love to spend more time on 

that issue. I am sure you have had enough entertainment on that 

one. But what I would like to address with you is something that 

is near and dear to my State of Florida. 

Is it your opinion that you feel that deceased people should vote? 

Attorney General HOLDER. Obviously not. 

Mr. ROSS. And illegal aliens should not vote either? 

Attorney General HOLDER. No, but veterans should be able to. 

Mr. ROSS. I couldn’t agree more, so long as they are, you know, 

eligible to vote. 

But when my State, in furtherance of its obligations to make 

sure that we have an adequate and sanctified voting process, 9 

months ago requested from the Department of Homeland Security 

the citizen database and yet receives not only a ‘‘no’’ but no response, and then today when they are trying to do what is necessary to make sure that the sanctity of the voting process is preserved and appropriate, the Department of Justice stonewalls and 

said, ‘‘Sorry, you are within 90 days, and therefore the Voting 

Rights Act applies and you can’t do it.’’ 

So what is my State supposed to do when DHS and DOJ does 

not cooperate with them in the furtherance of their obligation? 

Attorney General HOLDER. Well, I can’t speak to what DHS did, 

but I will say this about that DHS database. It does not contain 

people who were born in the United States, so it is not going to be 

a cure-all even if—— 

Mr. ROSS. But why would they refuse to give it? And now they 

have to go to the motor vehicle rolls to find out, to do their job. I 

mean, they had better tools with that database than what they 

have now with their own internal tools. 

Attorney General HOLDER. Well, I mean, I don’t know why they 

didn’t. But I can say that the database itself would not be adequate 

for the kind of purging that is sought by the State of Florida, if it 

had been provided. 

Mr. ROSS. And there is no reason they should not have—DHS 

should not have—they should have released it to—— 

Attorney General HOLDER. I don’t know what the basis was for 

that determination by DHS. 

I do know and I am concerned about the numbers of people who 

I have heard have been inappropriately purged from the voter rolls 

who are citizens who have voted in the past and who, for whatever 

reason, got those letters. 

Mr. ROSS. Thank you. 

I yield back. 

Mr. SMITH. Thank you, Mr. Ross. 

471 

*The information referred to was not received by the Committee at the time this hearing 

record was printed. 

Mr. Attorney General, thank you for your testimony today. 

Ms. JACKSON LEE. Mr. Chairman? I have one unanimous consent, please. 

Mr. SMITH. The gentlewoman from Texas, Ms. Jackson Lee, is 

recognized for a unanimous consent—— 

Ms. JACKSON LEE. I thank you. 

It is a clarification regarding an e-mail sent by Mr. Jason Weinstein. This is his testimony regarding an e-mail referred to by the 

gentleman from Utah. The e-mail referred to the Wide Receiver, 

and the testimony that I am submitting indicates this statement: 

‘‘When I say it is a tricky case given the number of guns that have 

walked, I am talking exclusively about Wide Receiver.’’ 

I ask unanimous consent to submit this testimony into the 

record. 

Mr. SMITH. Without objection, the testimony will be made a part 

of the record.* 

Mr. Attorney General, thank you again for your testimony. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions to the Attorney General. And 

we hope he will be timely in his response. 

This hearing is adjourned. 

Attorney General HOLDER. Thank you. 

[Whereupon, at 1:21 p.m., the Committee was adjourned.] 

(473) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Committee on the Judiciary 


74504G1-1.eps
474 


74504G1-2.eps

HJU299.000 

1 ALDERSON REPORTING COI~P]I.NY 

2 GREGORY ALTHAM 

3 HJU299000 

PAGE 

4 OVERSIGHT HEARING ON THE DEPARTNENT OF HOMELAND SECURITY 

5 Wednesday, October 26, 2011 

House of Representatives 

7 Committee on the Judiciary 

Washington, D.C. 

9 The committee met, pursuant to call, at 10:07 a.m., in 

10 Room 2141, Rayburn Office Building, Hon. Lamar Smith 

11 [chairman of the committee] presiding. 

12 Present: Representatives Smith, Conyers, Nadler, 

13 Sensenbrenner, Scott, Coble, Lofgren, Gohmert, Quigley, Poe, 

14 Chu, C~affetz, Griffin, Jackson Lee, Gowdy, Johnson, Adams, 

15 Marino, Pierluisi[ Quayle, GalleglYI Deutch, Issa l Sanchez, 

16 King, and Forbes. 
475 


74504G1-3.eps

HJU299.000 PAGE 109 

2609 to prior year levelG, we can reconsider that decision. 

2610 Mr. DEUTCr!. But nut the decision -- the decision to 

2611 expand Tier One is a decision made by your office. 

2612 

2613 

secretary NAPOLITANO. That is correct. 

Mr. DEUTCH. And, in fact, Tier One has been expended in 

2614 the past not just to include --

2615 Secretary NAPOLITANO. l'ihen there was money, yes. 

2616 Mr. DE'JTCH. I understand, but the further - - and I - - I 

2617 also understand the decisions Congress makes about funding I 

2618 but the -- it is the decision of the Department of Homeland 

2619 SecurIty to keep the Tier One funding the same and slash 

2620 dramatically the funding to the Miami-Fort Lauderdale UAS!. 

2621 Secretary NAPOLITANO. = think that the reason, 

2622 Representative, is because the evaluation of risk and 

2623 consequence did not put the Miami UASI into the Tier One 

2624 status. 

2625 Mr. DEUTCH. I would urge you to reconsider the -- and 

2626 and realize the -- the risk and consequences involved in 

2627 the decision. 

2628 

2629 

2630 

2631 

2632 

2633 

I yield back. Thank you, Madam. 

Mr. GALLEGLY. Time of the gentleman has expired. 

Mr. Issa? 

Mr_ ISSA. I thank you, Mr. Chairman. 

Madam Secretary, back in February, I recall that ,rou and 

were on the phone and on another important issue t but it 
476 


74504G1-4.eps

HJU299.000 PAGE 11e 

2634 had to come to a premature end or come to an end because you 

2635 had to attend a memorial service for Jamie Zapata. 

2636 

2637 

Do you remember that conversation? 

secretary NAPOLITANO. I don't remember the 

2638 conversation. I do remember the murder of Jamie Zapata. 

2639 Mr. ISSA. But I won't forget it because it was sort of 

2640 just at a point in whic~ IIFast and Furious" obviously was 

2641, becoming a major issue, both with Senator Grassley and with 

2642 my commit.tee next door. 

2643 SinGe that time, ",e have done a lot of work an:} I 

2644 want to run you through some questions that concern me that 

2645 fall within your lane. 

2646 One of them is earlier today, you have repeatedly said 

2647 that this was an ATF operation. Out of concern for the 

2648 investigatory process and the prosecutions that are ongoing, 

2649 we have -- we have avoided int.erviewing Lane France. Do you 

2650 know Lane? 

2651 secretary NAPOLITANO. I do not. 

2652 Mr. ISSA. Do you know he works for you? He is an ICE 

2653 agent that was part of the "Fast and Furious?" 

2654 Secretary NAPOLITANO. I know there was a -- a -- a 

2655 field agent assigned to a task force -- this is all things I 

2656 have learned in the wake of your investigation -- assigned to 

2657 a task force for deconfliction purposes in the wake of the 

2658 cwo ICE: matters that were resolved by the AUS~'" to be within 
477 


74504G1-5.eps

HJU299.000 PAGE 111 

2659 the context of ATF .. 

2660 Mr. ISSA. Wel~, it is -- it is our judgment that he 

2661 likely was very aware tr.at there was gun walking going or., 

2662 had that information. The question iS 1 when you assign 

2663 somebody like that, do you have a flow of informa.tion back to 

2664 your department so that your -- somebody in your department 

2665 could have, should have or would have known about the 

2666 operation? 

2667 Secretary NAPOLITANO. Representative, we have hundreds 

2668 of operations ar:d - - and thouss.nds of agents on a daily 

2669 basis. So to my knowledge, the fact that an agent was 

2670 assigned somewhere about some matter would not necessarily 

2671 come to --

2672 

2673 

Mr. ISSA. So--

Secretary NAPOLITANO. even -- even to ICE 

2674 headquarters, much less t.o DRS headquarters. 

2675 

2676 

2677 

2678 

2679 

2680 

Mr. ISSA. Okay. So I guess I am going to make an 

assumption here and that is that it is a fire and forget. 

You send - -

Secretary NAPOLITANO. Pardon? 

Mr. ISSA. - - you send these people over there. 

Secretary NAPOLITAl'O. I'm sorry. I couldn't hear you. 

2681 Sorry--

2682 ~!r. ISSA. Fire and forget, kind of like the missile 

2683 that you just send off and it looks for heat, and if it hits 
478 


74504G1-6.eps

HJU299.00C PAGE 

2684 something so be it, even if it is one of the friendly 

2685 aircraft. 

112 

2686 

2687 

2688! 

secretary NAPOI,ITl'.NO. Oh, I don't think that is £1 --

Mr. ISSA. Well, let's go through this. 

Secretary NAPOLITfu'<O. Accurate 

2689 Mr. ISSA. You -- you t.estified that in December, you 

2690 became aware of "Fast ar .. d Furious. II 

2691 Secretary NAPOLITANO. I said after the death of Agent 

2692 Terry, yes. 

2693 Mr. ISSA. Okay. And the details you became aware of 

2694 basically after our inveGtigation began, putting those 

2695 details out. 

2696 Secretary NAPOLITANO. I became aVlare, as I testified 

2697 here and in other committees, after the death of Agent Terry 

2698 and -- and knew some of the details and the name "Fast and 

2699 Furious" certainly no later than March. 

2700 Mr. ISSA. Okay. You testified here today that you --

2701 you haven't talked to Eric Holder about this. 

2702 

2703 

Secretary NAPOI,ITANO. That is correct. 

Mr. ISSA. And he testified here that he only knew about 

2704 it a few weeks before the interview he had in May here before 

2705 this committee and that he basically heard about it in the 

2706 newspaper. 

2707 So you have two dead agents that worked for you -- one 

2708 north of the border, one south of the border -- and 
479 


74504G1-7.eps

HJU299.000 PAGE 113 

2709 particularly in the case of Brian Terry, he was gunned down 

2710 .lith two weapons from "Fast and Furious." 

2711 It has been months, and you tell me that you are not 

2712 you were not -- you were not doing it because of an 10 

2713 investigation. Well, let's go through a few questions here, 

2714 Madam Secretary. 

2715 

2716 

2717 

2718 

2719 

2720 

2721 

SecretaIY NAPOLITANO. Well, wait -- wait just a minute. 

Mr. ISSA. No, no. No, wait --

Secretary NAPOLITANO. Wait just wait just a minute. 

~lr. ISSA. Let me finish my question. 

Secretary NAPOLITANO. Wait just a minute. 

Mr. ISSA. Madam Secretary, let me finish my question. 

Secretary NAPOLITANO. Go ahead, but that insinuation is 

2722 not an accurate 

2723 Mr. ISSA. Your -- Madam Secretary, you -- you -- we 

2724 could have the record read back. It would take a few minutes 

2725 but 

2726 

2727 

2728 

Secretary NAPOLITANO. No, it is the insinuation I am 

objecting to. But go ahead and ask your question. 

Mr. ISSA. Look, the -- you said because of an IG 

2729 investigation you were not having further investigation, 

2730 except you became aware of this in December. The IG 

2731 investigation began in February. 
480 


74504G1-8.eps

HJU299.000 PAGE 114 

2732 For three months, you had a dead Border Patrol agent and 

2733 there was no 1G investigacion. What did you do between 

2734 December and February to find out about "Fast and Furious" 

2735 since a -- and we can give you the documents, happily. We 

2736 would get you the unredacted ones if we could. You get them 

2737 from other parts of government. 

2738 You -- people on the ground knew t.hose were "Fast and 

2739 Furious" weapons found at c.he scene within hours. So it 

2740 wasn't something that wasn't known. It was knom, at the 

2741 time. 

2742 The question is, a Homeland Securit.y employee is gunned 

2743 down, two weapons found at the scene part of "Fast and 

2744 Furious." Agents on the ground know that it is "Fast and 

2745 

2746 

2747 

2748 

2749 

2750 

Furious" before Brian Terry '!las laid to rest. 

Three months go by, and now -- and today you told us 

about an IG investigation. My question is, first of all, do 

you have an IG and are you going to have your IG look into 

what happens when you segund agents and they are aware of gun 

running or, sorrY1 gun walking and do nothing? Is that 

2751 appropriate for you to have your IG investigate? Yes or no, 

2752 please. 

2753 Secretary NAPOl,ITANO. Well, that - - I think I - - that 

2754 question merits a lengthier response and I am glad to give it 

2755 to you. 

2756 Mr. ISSA. I will look -- I will look forward to that in 
481 


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HJU299.000 PAGE 115 

2757 writing. But back to the basic question. You knew about --

2758 when Brian Terry was gunned down you knew, in fact, be was 

2759 gunned down. 

2760 

2761 

2762 

2763 

2764 

2765 

2766 

2767 

2768 

2769 

People on the ground knew that he was gunned down with 

"Fast and Furious" weapons. Three months went by. What did 

you do between - - bet,.een December and February to find out 

the details about his 10s8 of life, and aren't you outraged 

here tOday that you -- if you were not informed-that you were 

not informed that weapons allowed to walk into drug dealers' 

cartels' hands had killed one of your agents and during those 

three months they kept it from.you? 

Secretary NAPOLITANO. I think your insinuation that 

Mr. ISSA. Ma'am, plcase ans«er the question. Don't 

2770 don't -- please don't talk in terms of insinuation. 

2771 

2772 

2773 

2774 

2775 

2776 

Secretary NAPOLITANO. Mr. Chairman, may -- may I have 

the opportunity to answer, please? 

Mr. GALLEGLY. Madam Secretary, I -- if you would try to 

succinctly answer his question, and then if you would like to 

elaborate the Chair will give you the time. 

Secretary NAPOLITANO. ,lell, what - - let me make a 

2777 suggestion, if I might, because he io -- the representative 

2778 is combining a lot of different things. If he would give me 

2779 hiB questions I will be happy to respond in writing. 

2780 Mr. ISSA. Well, the one question I would like a 
482 


74504G1-10.eps

HJU299.000 PAGE 116 

2781 succinct answer to is, you became aware ~hat Brian Terry had 

2782 been gunned down. People on the ground at that time knew 

2783 they were I1Fast and Furious!! weapons. That was December. 

2784 Betwf!en DeceP.lber and February of 2011, what did you do 

2785 to discover further the conditions around hiG death, one? 

2786 And then the second question, which was equally 

2787 straightforward, aren't you here today furious that the 

2788 Justice Department -- not ATF, the Justice Department 

2789 withheld from you the knowledge of "Fast and Furious" during 

2790 this entire period of time, including one in which you had an 

2791 agent dead? 

2792 secretary NAPOLITANO. I think we all should be outraged 

2793 at the death of Agent Terry, and I think the first thing is 

2794 to recognize who actually killed him, and that our number-one 

2795 priority was to make sure the shooters were found -- some had 

2796 gone back into Mexico -- and that the FBI was in charge of 

2797 that investigation. 

2798 Several days, as quickly as I could get to Arizona after 

2799 his death, I met with the FBI, their agents in charge. I met 

2800 with the AUSA who was going to conduct that investigation, 

2801 and that was my number-one concern -- that those responsible 

2802 for the shooting death of Agent Terry were brought to 

2803 justice, and that is what I was being kept apprised of. 

2804 I will be -- I would be happy to answer your other 

2805 questions in writing. 
483 


74504G1-11.eps

HJU299.000 PAGE 117 

2806 Mr. ISSA. Ma'am, we will be glad to follow up in 

2807 writing, and I thank the chairman for his indulgence. 

2808 

2809 

2810 

2811 

Mr. GALLEG~Y. The time of the gentleman has expired. 

Ms. Sanchez? 

Ms. Sp~CHEZ. Thank you. 

Madam Secretary, we appreciate your presence today 

2812 before the committee, and as you can see, there is a broad 

2813 range of questions that people can ask. 

2814 

2815 

secretary NAPOLIT1L~O. I have noticed that. 

Ms. SANCHEZ. And you are asked to be an expert on -- on 

2816 each and everyone of them and to know information at the tip 

2817 of your fingertips, which I kno~l is not always possible. 

2818 Ear:cier in -- we appreciate the effort nonetheless --

2819 earlier, you mentioned the Secure Communities program and it 

2820 is principally that program that I want to discuss with you. 

2821 Studies by the Warren Institute showed that 93 percent 

2822 of those identified through Secure Communities «ere Latino aD 

2823 of 2010, and give~ the scope of Secure Communities that 

2824 number seems a bit -- well, not a bit it seems alarmingly 

2825 high to me and hard to explain simply by saying, you kno«, 

2826 with sample size or mathematical variance. 

2827 Many of my constituents, for example, look at that 

2828 number and conclude that the Secure Communities program may 

2829 be inadvertently encouraging local law enforcement officials 
484 


74504G2-1.eps

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485 


74504G2-2.eps

HJU342.000 

1 RPTS DEAN 

2 DCMN HERZFELD 

3 OVERSIGHT HEARING ON THE llliITED STATES 

4 DEPARTMENT OF JUSTICE 

5 Thursday, December 8, 2011 

6 House of Representatives, 

7 Committee on the Judiciaryl 

8 l'lashington, D. C. 

PAGE 

9 The committee met, pursuant to call, at 9:37 a.m'l in 

10 Room 2141, Rayburn HOUSE: Office Building, HO::1. :Uamar Smith 

11 [chairman of the committee] presiding. 

12 Present: Representatives Smith t Sensenbrenner 1 Coble, 

13 Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, King, 

14 Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, 

15 GOWdYf Ross, Adams, Quayle, Amodei, Conyers, Berman} Scotti 

16 Watt f Lofgrenf Jackson Lee, Waters, Cohen, Johnson l 

17 Pierluisi, Quigley, Chu, Deutch, Sanchez and Polis. 

18 Also present: Representatives Schiff and Farenthold. 

Staff Present: Crystal Jezierski, Chief Oversight 

Hearing; Travis Nortonr Senior Counsel and parliamentarian; 

1 
486 


74504G2-3.eps

HJU342.000 Pl\.GE 11 

202 Chairman SMITH. The gentleman from California, chairman 

203 of the Oversig}1t ar:d Government Reform Committee, is 

204 recognized [or an opening statement. 

205 Mr. ISSA. Thank you, Mr. Chairman. And I would first 

206 like to ask :manimous consent that the following document be 

207 placed in the record. December 7th, an article by Shary1 

208 Attkisson entitled IIDocuments: P ... TF Used Fast and Furious to 

209 Make Case for Gun Regulations." 

210 Chairman SMITH. Without objection, they will be made a 

211 part of the record. 

212 [The information follows:] 

213 ******** COMMITTEE INSER':' ******** 
487 


74504G2-4.eps

HJU342.000 PAGE 12 

214 :'Jr. ISSA. Thank you, Mr. Chairman. I thank you for 

215 holding this hearing. It is deja vu allover again. We are 

216 beginning the process of getting to the bot~om, to the truth 

217 of Fast and Furious. 

218 I take exception to my colleaglle on the other side of 

219 the aisle Mr. Conyers. What. is too important. is the Second 

220 Amendment. The idea that regulat.ions without any approval of 

221 Congress had been added to create databases in the Southern 

222 Southi,<lestern States i including California, Arizona t 

223 Mexico- -·NeTt] Mexico- -Texas and New t-1exico i clea:::-ly shows, in 

224 facti this administration is more interested in building 

225 databases, more interested in talking about gun control than 

226 actually controlling the drugs and guns that they had control 

227 over. Whether it is money laundering, or, in fact, it is the 

228 flow of guns knowingly, just one individual was allowed to 

229 buy, under the auspices of the Justice Department, 700 

230 weapons, knowing exactly who they ~lere going to before they 

231 ever VJent. 

232 Our discovery, VJith the help of Senator Grassley, has 

233 shown that this was not an accident, and that this project 

234 VJas failed and flaVJed from the beginning. It is not just 

235 1'.TF, it is not just DEA; in fact, it includes the Department 

236 of Homeland Security in a task force that obviously did not 

7.37 [ respect the safeguards of the American people. 

238 Brian Terry is dead today, in my opinion, because of 
488 


74504G2-5.eps

HJU342.000 PAGE 13 

239 t.his failed program. But eve!l today we will not hear LTustice 

240 taking responsibility_ They will instead talk about the two 

241 guns that were recovered. Yes, they were from Fast and 

242 Furious, but ballistics are inconclusive. And yet this 

7.41 Justice Department is not looking for a third weapon. They 

244 are not looking for who killed Brian Terry while they try to 

245 have the plausible deniability that Fast and Furious IT'.ay not 

216 have been responsible. That is reprehensible to the family 

247 suffering under Brian Terry's needless murder. 

248 Mr. Chairman, Fast and Furious began in November 2009. 

249 It was a new operation building on a failed operation under 

250 the previous administration. The difference in the previous 

251 administration is there was coordination with the Mexican 

252 Government. They made a real effort under ~'1ide Receiver to 

253 pass off a small arnount of weapons and track them. This 

254 program, just the opposite; even knowing the drug cartels are 

255 going to receive them, they simply allowed them to go to the 

256 stash house. 

257 Mr. Attorney General, today I hope you will not point 

258 fingers and say that somehow this is not organic. There is 

259 nothing more orga!lic that a law enforcement officer beiCl9 

260 gunned down becaus·e of a failure to protect within the 

261 Department of Justice. There is nothing more organic in 

262 Congress's responsibility than, in fact, following up on 

263 Congress being lied t.o. My committee just next door was 
489 


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HJU342.000 PAGE 14 

264 systematic lied to by your own representatives. There is a 

265 highly likelihood an ir-dividual was deliberately duped, but 

266 he was duped by people who still work foy you today, still 

267 vlork for you today. 

268 The President has said he has full confidence in this 

269 Attorney General. I have no confide::1ce in a President who 

270 has full confidence in an Attorney General who han, in facti 

271 not terminated 02" dealt with the individuals, including key 

272 lieute:lants, who from the very beginning had some knowledge 

273 and long before Briar- Terry was gunned down knew enough to 

274 stop this program. 

275 There has been recrimination. There has been an attempt 

276 to find scapegoats. Mar-y of the people who have been pointed 

277 to do share in the blame. But, l~r. Attorney General, the 

278 blame must go to your desk, and you must today take the real 

2",9 responsibility. Why haven't you terminated the many people 

280 involved? Why is it. that we are still hearing about 

281 inconsistencies that don't even take the correct 

282 responsibility for Border Patrol agent Brian Terry's death? 

283 Those are the things we want to hear today. 

284 Mr. Attorney General I I respect the fact that you said 

285 in the Senace that you gave truthful testimony, but I would 

286 like to hear wha'c.- -when a few days becomes a few weeks I or a 

287 few weeks becolT,es a few months, are \'le to have the confidence 

288 that the ?resident says he has in you and the many people up 
490 


74504G2-7.eps

HJU342. 000 PAGE 

289 and down t:he chain of command at ... ~ustice who saw this 

290 program, this opera!:ion and let it happen? !'.nd the many 

291 people who called your legislative affairs representative, 

292 who is sitting right behind you, caused him to bring fa:"se 

293 testimony to the committ.ee. It is unheard of for 

294 testimony--or for letters or testimony to be taken back. 

295 They have had to be t<lken back because of people who still 

296 worked for Justice. 

297 Mr. Chairman, I thank you for your indulgence, and I 

15 

298 appreciate the opportunity to speak here and would ask that 

299 Blake Farenthold, a member of my committee who has been 

300 intimately involved in the investigation, also be allowed to 

301 sit on the dais under the same terms as ~lr. Schiff. 

302 

303 

304 

305 

Mr. CONYERS. Is he a Member of Congress? 

Mr. ISSA. He is a Member of Congress. 

Chairman SMITH. Hr. Issa, thank you. 

Mr. ISSA. He is a freshman from Texas. He is impacted 

306 by these gun control regulations. He .is an attorney. 

307 Chairman SHITH. I understand there is no room right 

308 now, but we will consider that request in just a minute. 1'1.8 

309 much as I would like to have a Texas colleague up at the 

310 podium--

311 

312 

Mr. ISSA. You got a few, but he is a good one. 

Chairman SMITH. He is not a former Member of the 

313 Judiciary Committee, though. We certair:ly appreciate his 
491 


74504G2-8.eps

HJU342.000 PAGE 16 

314 expertise on this subject. So :Let us wait until we have 

315 :coom, arcd we will take it up at that point. 

316 Mr. ISSA. I thank the gentleman. 

317 Chairman SMITH. The gerctleman from Virginia Mr. Scott, 

318 the ranking member of the Crime Subcommittee! is I.-ecognized 

319 for an. opening staten:.ent. 

320 ~lr. SCOTT. Thank you, Mr. Chairman. And I join my 

321 colleagues in welcoming the Attorney General this morning. I 

322 understand that the invitation to the Attorney General to 

323 appear this morning specifically referenced gun trafficking 

324 in the southwest border, so today wc have an opporcunity to 

325 discuss with hi1l'. the positive steps we must take to protect 

326 our citizens from illegal firearms. 

327 I am heartened that this Attorney General recognizes 

328 thac the sn,artest and most effective way to protect ourselves 

329 froy" crime is to prevent it from occurring in the first 

3301 place. With respect to preventing fireal~, violence, there 

331' are steps that we can take to reduce the to:l of the injured 

332 and murdered. And there are steps that we must take in order 

333 to elChance the ability of law enforcement to effectively 

334 investigate gun crimes that have already occurred. 

335 I note, as it is often said around here, that the best 

336 strategy to use "hen yo", are in a hole is to stop digging. 

337 Unfortunately this committee approved and the House passed a 

338 dangerous bill that would override the laws of almoRt every 
492 


74504G2-9.eps

HJU342.00C PAGE 20 

395 Chairman SMITH. We are pleased ::0 welcome today's 

396 witness, united States Attorney General Eric H. Holder, Jr. 

397 On February 3rd, 2009, Attorney General Holder was sworn in 

398 as the 82nd Attorney General of tte united States. 

399 Attorney General Holder has enjoyed a long and 

400 distinguished career in public service. First joining the 

401 Departmer:.t through the Attorney General's Honors Program in 

402 1976, he became one the Department's first. attorneys to serve 

403 in the newly fanned Public Integrity Section. He went on to 

404 serve as a judge of the Superior Court of the District of 

405 Columbia and a u.S. attorney for the District of Columbia. 

406 In 1997, Mr. Holder was named by President Clinton to be 

407 the Deputy Attorney General. Prior to becoming Attorney 

408 General, Mr. Holder was a litigation partner at .Covington & 

4J9 Burling, LLP, in Washington, D.C. 

410 Mr. Holder, a native of New York City, is a graduate of 

411 Columbia University and Columbia Law School. 

412 Again, we welcome you and look forward to your 

413 t:estimony. 

414 Mr. ISSA. Mr. Chairman? Mr. Chairman? I ,.,ould move 

415 that the witness be sworn. 

416 Chairman SMITH. I am going to ask that the gentleman 

417 withdraw that for two reasons. First of all, the Attorney 

418 General did receive a letter from the committee reminding him 

419 of the- need and, in effect, that he is testifying under oath. 
493 


74504G2-10.eps

HJU342.000 PAGE 

420 And two, we don't need to go through that necessarily 

421 because that is assumed by anybody who does testify before 

422 the committee. 

423 Mr. ISSA. Point of inquiry, Mr. Chairman. Isn't it 

424 true that a false statement to Congress bears a different 

425 criminal violation than a sworn statemen~? 

426 

427 

Chairman SHITH. I believe the answer to that is yes. 

Mr. ISSA. Then I would once a",ain ask, since this 

428 committee has at times sworn witnesses, as have all t.he 

429 committees, that. in light of--

430 Chairman SMITE. If the gentleman would yield. 

Mr. ISSA. Of course. 

21 

431 

432 Chairman SMITH. I misunderstood the question, and the 

433 anS\'ler was no. So' it is deemed as if he is under oath right 

434 now, any witness. 

435 Mr. ISSA. So h ... is exactly the same as if he swears 

436 under our rules. 

437 Chairman SMITH. That is correct. 

438 Mr. ISSA. Then I withdraw. 

439 Chairman S~lITH. Okay. I thank the gentleman. 

440 Lf the Attorney Gen8ral will proceed. 
494 


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HJU342. 000 PAGE 61 

1387

1 1388

1 

1J89 

people that are repeatedly received as many as three and four 

mammograms in 1 week. I see my time has expired. yield 

back. 

1390 Attorney General HOLDER. I would just say you 

1391 identified something that really has to be a priority for the 

1392 Justice Department. !\.nd I hope that Congress will support 

1393 our funding request and HHS's funding request The money 

1394 that we spend in these enforc8ment efforts, we save huge 

1395 amounts of money down the road by just investing relatively 

1396 small amounts of money in prevention and enforcement. It 

1397 makes the programs that much more financially stable. 

1398 Mr. GALLEGLY. I look forward to seeing the data. 

1399 And I yield back, Nr. Chairman. 

1400 Chairma:::t SMITH. Thank you, ~!r. Gallegly. 

1401 Mr. ISSA. Nr. Chairman? 

1402 Chairman SMITH. For what purpose does the gentleman 

1403 from California seek recognition? 

1404 Mr. ISSA. Thank you, Mr. Chairman. 

1405 I would like to renew my request that Mr. Farenthold be 

1406 able to sit on the dais. Apparently" Mr. Schiff has 

1407 left--Mr. Schiff is there, but we have. a number of'sea':s that 

1408 are vacant on this side. And since he won't be asking 

1409 quest:ions any position would normally be fine. 

1410 Chairman SMITH. Mr. Issa, I talked to the gentleman 

1411 from Texas, and actually, I was just getting rea.dy to 
495 


74504G2-12.eps

HJC"342.000 PAGE 62 

1412 recognize him. And he has requested, and I want to recognize 

1413 rhe gentleman from Texas, my colleague, Blake Farenthold, who 

1114 is an active member of the Oversight and Government Reform 

1415 Committee. And he is sitting OD the front row. 

1416 Blake, give us a wave. 

1417 And appreciate his being here. And he is, I think, 

1418 happy to observe the committee from where he is sitting. 

1419 Mr. ISBA. He looks better on the dais, though, Mr. 

1420 Chairman. 

1421 Chairman SMITH. Thank you. 

1422 Mr. ISSA. I thank the gentleman. 

1423 Chairman SMITH. Okay. 

1424 The gentlewoman from Texas, Ms. JackSon Lee, is 

1425 recognized for her questions. 

1426 Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and 

1427 to the ranking me~~er, for the opportunity. 

1428 Mr. Attorney General, let me first of all thank you for 

1429 your service and thank those who are sitting so prominently 

1430 behind you. I work with chiefs of police as a former judge 

1431 in my community. I think my former mayor, Mayor Lee P. Brown 

1432 was a drug czar, but he was also the head of the Major Chiefs 

1433 Association. He had the uncanny ability of being mayor and 

1434 chiefs of police in New York, Houston, and Atlanta. And I 

14351 notice our good friend that was formerly the police chief 

1436 here in the city--the District of Columbia has now moved onto 
496 


74504G2-13.eps

HJU342.000 

2003 RPTS DElL'" 

200'l DCMN HERZFELD 

2005 [12:2S p.m.] 

PAGE 

2006 Attorney General HOLDER. 1 mean, it certainly has a 

2007 :legative impact on the organization. There are certain 

86 

2008 groups that I think have actively opposed nominees, both put 

2009 up by President Bush as well as President Obama, who I think 

2010 were amply qualified to lead the organization and who, for 

2011 1tlhatever reason, were not confirmed. 

2012 

2013 

2014 

2015 

Chairman SMITH, Thank you, Mr. Johnson. 

The gentleman from California, Mr. Issa, is recognized. 

Mr. ISSA. Thack you, Mr. Chairman. 

And I would be remiss if I didn't take exception to 

2016 calling the NRJI. members, the millions of them, radicals. I 

2017 think that is an offensive statement beneath contempt in this 

2018 committee. 

2019 Mr. Attorney General, will you agree to corne before the 

2020 oversight committee without t.he need for a subpoena in the 

2021 January time frame? 

2022 

2023 

Mr. JOHNSON. vlill,the gentleman yield? 

Mr. ISSA. I will not. 

2U24 Mr. Attorney General, will you agree to corne before the 

2025 committee I chair, the oversight committee, the one you 

2026 produced these documents tO I in the January time frame 

2027 without the need for a subpoena? 
497 


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HJU342.000 PAGE 87 

2028 Attorney General HOLDER. I will consider it, bUL. 1 will 

2029 note I have testified on four occasions with regard to this 

2030 matter. I have appeared before you on at least two 

2031 occasions. 

2032 Mr. ISSA. You have appeared before this committee. 

2033 Your organization pushed back on the request for a joint 

2034 hearing here today. Not \>Jill you consider it, but do I need 

2035 to serve a subpoena on yourself, and Lanny Breuer; and the 

2036 other people under direct investigation of my committee, or 

2037 will you agree to come voluntarily in the January time frame 

2038 before the committee? 

2039 Attorney General HOLDER. I will consider any request 

2040 that you make. 

2041 ~lr. ISSA. I thank you, Mr. Attorney General. 

2042 I now would go to the questions of e[,lails. This is the 

2043 document you refer to. Most of these documents, 5,000 or so, 

2044 are, in factI cmails. Mr. Attorney General j I have a 

2045 question for you. Not one of these emails.infact.is 

2046 yours. Aren't you an a prolific emailer? 

2047 

2048 

2049 

2050 

Attorney General HOLDER. No. 

Mr. ISBA. Don't you email? 

Attorney General HOLDER. Yes. 

Mr. ISSA. Do you have a personal email account and as 

2051 well as an Attorney General's email account? 

2052 Attorney General HOLDER. I have an email account at the 
498 


74504G2-15.eps

HJU342.000 PAGS 88 

2053 Justice Department} yes. 

2054 Mr. ISSA. Do you have a personal email? 

2055, Attorney General HOLDER. Yes. I 

20561 Mr. ISSA. Do you regularly email to Lanny Breuer, your 

2057 fanner partner and your head of the Criminal Division? 

2058 At.torney General HOLDER. No, I wouldn't say regularly. 

2059 There are only a limited-number of people who know my email 

2060 address in the Justice Department. 

2061 Mr. ISSA. Let me cut to the chase. Don't you think it 

2062 is a little conspicuous in his absence that there is not one 

2063 email to or from you related to Fast and Furious in any way, 

2064 shape or form? 

2065 Attorney General HOLDER. There are a variety of reasons 

2066 why the email" that we have shared with you are there. We 

2067 have shared in an unprecedented way email inf·ormation that no 

2068 Justice Department, no »,ttorney General has ever authorized 

2069 before. You have deliberative information contained, I 

2070 guess, in--

2071 Mr. ISSA. But isn't it true that executive privilege 

2072 does not flow to the Attorney General, only to the office of 

2073 the President? So deliberative process within your 

2074 Department running law enforcement! in fact, doesnit serve 

2075 executive privilege. As the chairman said going on, you 

2076 haven/t cited any reason that these would not have been 

2077 delivered. 
499 


74504G2-16.eps

HJU342.000 PAGE 89 

2078 Attorney General HOLDER. In making production 

1079 deterrninations, we have followed what At.torneys General in 

2080 the past have always used in applicable standards, and these 

2081 are Republican as well as Democratic Attorneys General. And 

2082! the information that we have provided to you has been 

2083 responsive.! has been, I thinkl fulsome I and a2.so 

2084 unprecedented. 

2C85 Mr. ISSA. 11ell, unprecedented would be an Attorney 

2086 General who knew .nothing about something where his own DAG, 

2087 now his present chi.ef of staff, was intimately familiar. 

2088 Gary Grindler was well aware, according to documents 

2089 provided of Fa.st and Furious, on March 12th, 2010. Are you 

2090 aware of that., that he with an aware of Fast and Furious and 

2091 what its procedures were on Narch of 2010? 

2092 Attorney General HOLDER. It.was certainly brought to 

2093 his attention as a part of a regular briefing he got from 

2094 ATF, but he did not hear during that briefing anything about 

2095 the tactics. 

2096 Mr. ISSA. Really? Is that why in his own hand.,rit:"ng 

2097 when he talks about going to stash houses, he clearly 

2098 understood in a document you have delivered-ehe clearly 

2099 understood in his own handwriting what the tactic was. 

2100 Attorney General HOLDER. No, that is not--

2101 Mr. ISSA. I am sorry, but I am going to ask you a 

2102 different question--
500 


74504G2-17.eps

H,Jlj342. 000 PAGE 90 

2103 

2104 

2105 

2106 

2107 

Attorney General HOLDER. Well--

Mr. ISSA. Because he understood. No, no. 

Attorney General HOElER. Could I answer that question? 

Mr. ISSA. You have answered it less than truthfully. 

Ms. JACKSON LEE. Could the questioner allow the "Jitness 

2108 to answer the questio:::l? 

2109 

2110 

2111 

Nr. ISSA. ~;adam, this is my time. I am not yielding. 

Ms. JACKSON LEE. I am not asking you to yield. 

Chairman SHITH. The gentleman from California Mr. Issa 

2112 has the time. 

2113 Ms. JACKSON LEE. I would appreciate it if you would 

2114 allow the witness to answer the question. 

2115 Chairman SMITH. The gentleman from California Mr. Issa 

2116 has the time. 

2117 

2118 

2119 

Ms. JACKSON LEE. I understand that. 

Chairman SMITH. The gentlewoman from Texas--

Ms. JACKSON LEE. I would appreciate it if the witness 

2120 could be allowed to answer the question, Mr. Chairman. 

2121 Chai rman S~IITH. The gent lewoman from Texas has not been 

2122 recognized. 

2123 

2124 

2125 time. 

2126 

Ms. JACKSON LEE. I ask for a sense of protocol here. 

Chairman SMITH. The gentleman from Cal.ifornia has the 

Mr. ISSA. Mr. Attorney General, as I was saying, Mr. 

2127 Grindler--you can't answer on his behalf, and so it maltes no 
501 


74504G2-18.eps

HJU342.000 PAGE 91 

2128 sense to. This is evidence that was delivered. 

2129 Do you regularly talk to your chief of staff? And do 

2130 you regularly receive oral briefings from Mr. Grindler? And, 

2131 in fact, when you made the decision to have him be the DAG 

2132 and then the chier of staff, wouldn't it be reasonable to 

2133 assume that if he knew on March 10th, as this docum8nt 

2134 indicates, that you would also know, March lOth, March of 

2135 2010, ~larch 12 of 20::'0? 

2136 Attorney General HOLDER. Well, first, he was not 

2137 intimately--made intimately familiar with the program as a 

2138 result of that briefing. The briefing that he received from 

2139 then-Acting Director Nelson did not go into the tactics. 

2140 Nelson indicated--

2141 

2142 

Mr. ISBA. Of course it didn't go into the tactics. 

.Mr. Chairman, I would ask that I have the time restored 

2143 that I lost with the la.dy'sinterruption. 

2144 

2145 

2146 

2147 

2148 

2149 

Chairman SMITH. The gentleman is recognized for an 

additional minute a.nd also to give the opportunity to the 

Attorney General to respond to the question. 

Nr, ISSA. I certainly look forw'ard to that. 

t~r. Attorney General--

Attorney General HOLDER. I was in the middle of an 

2150 answer, I think. 

2151 Mr. ISSA. You know, you are in the middle of 

2152 filibustering, so I will let you anSI'er. I have two more 
502 


74504G2-19.eps

HJU342.000 PAGE 92 

2153 things to quickly go over, and then you can have all the time 

2154 the chairman will give you. 

2155 Does it surprise you that these boxes, five boxes, 

2156 represent lust what one gun dealer gave us voluntarily! 

2157 while, in fact, lhis seems to be all the information you have 

2158 responsive to our sUbpoena; does it cause you to think that, 

2159 in fact, " ... ·e believe you were withholding documents? v-Je 

2160 believe that, in fact, there is more production. So my final 

2161 question--and you.can answer all of them for as long as the 

2162 chairman wants--is do you today have documents responsive to 

2163 the lawful request of the oversight committee that have not 

2164 yet been granted? 

2165 Attorney General HOLDER. All right. Well, Let me go 

2166 back to my first answer that I was not--

2167 Mr. ISSA. Well, mine· is pretty easy. Nine is a yes Cl~ 

2168 no, and then the others you are going to go on for a while. 

2169 Attorney General HOLDER. I will get to that. 

2170 Mr. ISSA. vlould you please get to it first? 

2171 Attorney General HOLDER. With regard to Gary Grindler, 

2172 he vIas not provided with a detailed aroalysis of Fast and 

2173 Furious. He was given infonnation abou"t--

2174 Mr. ISSA. Mr. Chairman, I asked earlier that the 

2175 Attorney General be placed under oath. I was denied that. 

2176 But what I will make the point is that it is not productive 

2177 for anyone to come before this committee and tell us what 
503 


74504G2-20.eps

H,TU342.000 PAGE 93 

2178 somebody else didn't know. That is exactly how the 

2179 legislative liaiso~ behind the Attorney General Mr. We~ch 

2180 came and gave false testimony to my committee, false because 

2181 people who are still working for the Attoyney General 

7.182 1 knowingly gave him misleading informc.tion in addition to the 

2183 U.S. attorney, and no action has been taken. 

2184 l4·s. JACKSON LEE. Is the gentleman's time extended, 00:-

2185 is there regular order'? 

2186 I4r. ISSA. I might note for the record that the IG--

2187 Ms. Jl\.CKSON LEE. I have a parliamentao:-y inqui~y, HI'. 

2188 Chairman. 

2189 Chairman SMITH. The gentleman--

2190 148. JACKSON LEE. I have a parliamentary inquiry, Mr. 

2191 Chairman. 

2192 Chairman SMITH. The gentleman from California continues 

2193 to be recognized. And let me make a point in the record that 

2194 h.e is not ove.r time near as much as the gentlewoman from 

2195 Texas was a few minutes ago. 

2196 !>ls. JACKSON LEE. I thank you for your courtesies, but I 

2197 would like to unders~and whether the gentleman has extended 

2198 time. 

2199 Chairman SMITH. And he .,as recognized for that purpose, 

2200 as the Attorney General Nill be recognized for the purpose of 

2201 responding--

2202 Ms. JACKSON LEE. And will he allow the Attorney General 
504 


74504G2-21.eps

EJU342.000 PAGE 

2203 to answer the question? 

Hr. ISSA. I look forward to it. 

~js. JACKSON LEE. Thank you very much. 

2204 

2205 

2206 

2207 

Mr. ISSA. Mr. Chairman, I use only 5 more seconds. 

The fact is the inspector general has released 

2208 information that was secret to the object of our 

94 

2209 investigation with the knowledge'of the Justice Department. 

2210 She is not currently, in our opinion, qualified to 

2211 investigate and, in fact, has oVerstepped the line by 

2212 delivering secret tapes to the object of our investigation 

2213 while the Justice Department was slow-rolling that' discovery. 

2214 And this is the ATF agent that was intimate;Ly involved with 

2215 this. 

2216 So I want you to understand I have treated this Attorney 

2217 General as ·a hostile witness because ultimately when he comes 

),218 before us saying 'he is going to clean house, no house has 

2219 been cleaned. And I would love to hear his answers. 

2220 Chairman SMITH. The gentleman's time has expired. The 

2221 Attorney General will be given the opportunity to respond. 

2222 Attorney General HOLDER. I will try again. Gary 

2223 Grindler was not provided with information as you have 

2224 described, intimate information, about Operation Past and 

2225 Furious. He was not told about the tactics that were used 

2226 there. The person who did the briefing was the acting head 

2227 of ATF, and he has, I understand, testified before your 
505 


74504G2-22.eps

HJU342.coa PAGE 95 

2228 committee that he did not, in fact, share that tactical 

2229 informa-c.ion with Mr. Grindler. 

2230 I no::'e tha~ Mr. Nelson also briefed your Congressman, 

I 

22311 about a month or so later or before i I forget which, and. he 

2232 said at that ,:ime he did not share with you information about 

2233 those tactics. So the notion for your contention that Gary 

2234 Grindler wa; familiar with this or intimately familiar with 

2/.35 t.his is inconsistent with what I think the facts are. 

2236 And you take me_to. task for trying to assume what I know 

2237 Grindler to have said. You have not interviewed him as well} 

2238 and nevertheless you feel comfortable doing the same thing. 

2239 With regard to the documents that you talked about, we 

2240 have not withheld any documents that are responsive to the 

2241 matters thilt you have--that you have asked us about. We have 

2242 withheld information that pertains to ongoing investigations; 

22".3 that is t.he thing that might have lirr.ited our document 

2244 production. But agair., what we produced on February the 4th 

2245 is unlike anything that any committee in any part of this 

2246 Congress, Senate or House, has ever seen before. And I want 

2247 to make clear, as we said in that letter, that is not 

2248 precedential, not holding, and I don't think any future 

2249 Attorney General should be expected to do that, but given the 

2250 nature of what we did in withdrawing that February 4th 

2251 letter, it seemed to me to makG sense to make an exception to 

2252 what has been a long-recognized rule. 
506 


74504G2-23.eps

HJU3'12.000 PAGE 96 

2253 ~lr. ISSA. Mr. Chairman, could the AG be allowed to 

2254 fully anS'II>ler, since it was pursuant t.o a subpoena whether or 

2255 not his answer aboc:t did he provide--

2256 

2257 

Chairman SMITH. The gentleman's time has expired. 

Mr. ISSA. It means he was withholding or not 

2258 withholding. He did not answer that. 

2259 Ms. WATERS. Mr. Chairman, that requires unanimous 

2260 consent. I withhold--

2261 Chairman SMITH. The gentlewoman has now been 

2262 recognized. 

2263 I was asking the Attorney General a questioa. Does the 

2264 Attorney General wish to respond any further to the 

2265 questions? 

2266 At::orney General HOLDER. I am fine. 

2267 Chairman SMITH. The gentleman from Virginia Mr. Scott 

2268 

2269 

.r;:; recognized for his question" 

!~r. SCOTT. Thank you, Mr. Chairman. 

2270 General Holder, a lot has been made about the letter 

2271 written by your Assistant Attorney General Mr. Ron Weich. 

2272 Nobody expected him or believes that he has any personal 

2273 knowledge of the information, but expected him to get the 

2274 information and relay it. The iaformation has, I think, been 

2275 subsequently determined to be false. Do you know where he 

2276 "ot the false information? 

2277 Attorney General HOLDER. The information that was 
507 


74504G2-24.eps

HJU312.000 PAGE 144 

3393 Chairman SfJIITH. The gentlelT'Lan is time has expired. 

3394 

3395 

Does the gentleman want to respond t.o the last question? 

Attorney General HOLDER. I just was trying to say that 

3396 I have made personnel changes with roegard to the agencies 

3397 that have been involved. And these are initial 

3398 determinations that. I have made. It is not all that I am 

3J99 possibly going to do. There is an impatience here, and in 

3400 some ways, I understaEd it, but the reality is that you have 

3401 to do t.hese things on the basis of evidence, on the basis of 

3~02 findings that are factually grounded. And when I am in that 

3403 position, I will take the appropriate actions. But I ,"ant to 

3404 assure you and the American people that people will be held 

3405 accountable for the mistakes that were made in Fast and 

3406 Furious. 

3407 Mr. ISSA. Mr. Chairman, point of inquiry. 

3408 Che.irman SHITH. Thank you, Mr. Chaffetz. 

3409 Who seeks to be recognized? 

3410 

3411 

The gentleman from California. 

Mr. ISSA. A point of inquiry. Do political appointees 

3412 of the Presidents and the Attorney General serve at the 

3413 pleasure of the President or the Attorney General, or do they 

3414 need to have to be fired for cause? 

341-5 Chairman SMI7H. That is not actually a parliamentary 

341-6 inquiry--

3417 Mr. ISSA. But I am Rure inquiring. 
508 


74504G2-25.eps

HJU342.000 PAGE' 196 

4684

1 

4685i 

Breuer has testified to, Nhich is that he did not think that 

he reviewed the letter--reviewed t.he drafts before they wer,t 

4686 out. That is what he testified to. 

4687 Mr. GOWDY. But you agree with me--

4688 Mr. ISSA. Mr. Chairman. 

4689 Mr. PIERLUISI. Regular order, Hr. Chairman. The 

4690 witness should be allowed to finish. 

4691 Mr. ISSA. Would the gentleman from Nevada be willing to 

4692 further yield? 

4693 Chairman SMITH. The gentleman from South Carolina has 

4694 the time. 

4695 Mr. GOWDY. I will be happy to yield to the gentleman 

4696 from California. 

4697 Mr. ISSA. I thank the gentleman. Mr. Attorney General. 

4698 if there were seven wiretaps and they were all app:>coved under 

4699 the criminal justice committee, the criminal division, 

4700 certainly we would hope that betweerc now and the time you 

4701 next appear, you would read them as "muld Lanny Breuer in 

4702 detail since he approved them through his minions. 

4703 Attorney General HOLDER. Well--

4704 Mr. ISSA. Let me just go through one thing that I have 

4705 to ask you, yesterday--

4706 Attorney General HOLDER. Understand something--

4707 Mr. ISSA. --we became aware, Mr. Attorney General--

4708 Attorney General HOLDER. Please. 
509 


74504G2-26.eps

H,TU342.000 P.l\.GE 197 

4709 Mr. PIERLUISI. !~r. ChairmaCl. regular order. The time 

47~0 has expired. 

4711 Mr. ISSA. Hr. Attorney General, I didn't ask you a 

4712 question, I simply said I would like you to be aware. 

4713 Chairman SHITH. The gentleman from California has the 

4714 time. The gentleman from California is granted an extra one 

4715 minute to allow the AG to respond. 

4716 Hr. ISSA. There was no ~lestion. Here is the 

4717 question--

4718 Attorney General HOLDER. No--

4719 Mr. ISSA. Yesterday, Mr. Attorney Ge"eral, we became 

4720 aware of the email between--

4721 I~r. PIERLUISI. ~r. Chairman. 

4722 Mr. ISSA. --Lanny BreuGr and his deputy Jason WeinstGin, 

4723 about Fast and Furious in March time frame that they exist. 

4724 Some of these. actually all of these, have been withheld from 

4725 the commi t tee. Will you agree to turn over t.hose 

4726 communications in the IvIarch time frame between Lanny Breuer 

4727 and his deputy, Jason weinstein? 

4728 

4729 

4730 

Attorney General HOLDER. March of what year? 

Mr. ISSA. 2011. 

Attorney General HOLDER. As I have indicated we are not 

4731 going to be turrling over materials after February--

4732 Mr. ISSA. Are you aware that you are, in fact, by doing 

4733 so, in the fact that we already issued from the oversight 
510 


74504G2-27.eps

HJU3'12.000 PAGE 198 

4734 Committee a subpoena, you are standing ill contempt of 

4735 Congress unless you have a valid reason that you express it! 

1736 that you provide loge which you ~'efused to provide for the 

4737 other information, otherwise you will leave the committee no 

4738 choice but to seek contempt for your failurc to deliver, OI' 

4739 to cite a constitutional exemption, 

4740 Chai~man SMITH. The gp.nt~8ma~'s time has expired, the 

4741 Attorney Geneocal will be allowed to respond, 

4742 J\.ttorncy General HOLDER. l1e will respond in a way that 

4743 is consistent with t.he way in which the Justice Department 

<:744 has always responded to those kinds of--

4745 Mr. ISSA. That is not the ~lestio~, Mr. Attorney 

4746 General. 

4747 Attorney General HOLDER. Can 1--

4748 Mr. PIERLUISI. Regular order, Nr, Chairman. 

4749 Chairman SNITH. Please procced, Mr. Attorney General. 

4750 Attorney General HOL:JER. We will respond in a way that 

4751 other Attorneys General have, other justices. 

4752 Mr. ISSA. John Mitchell responded that way too. 

4753 Mr. PIERLUISI. Regular order f fv1r. Chairman. 

4754 Attorney General HOLDER. Was that called for? Mr. 

4755 Chairman? 

4756 

4757 

4758[ 

I 

Nr. ;PIERLUISI. He should be allowed to--

Chairman SMITH. The gentleman from South Carolina has 

the time, but I am going allow the Attorney General. :Jo you 
511 


74504G2-28.eps

HJU342.000 PAGE 199 

4759

1 

4760 

have any further response to that question? 

Mr. ISSA. To the quest ion, 14r. Chairman, about whether 

4761 or not he understood that it was in fact an act of contempt 

4762 unless they recited a constitutional exemption and still had 

4763 a responsibility to provide us logs, both of which they are 

4764 refusing to do in testimony here today. 

4765 Chairman SMITH. The gentleman from South Carolina's 

4766 time has again expired. Do you have a final response, Mr. 

4767 Attorney General? 

4768 Attorney General HOLDER. Ms. Adams asked me 

4769 about--Congresswoman Adams asked me about political points. 

4770 The reference to John Mitchell, let's think about that, think 

4771 about that, at some point--as they said in the McCarthy 

4772 hearings at Gome point l have you no shame? But in any case! 

4773 I will say that with regard to--we have made our point clear 

4774 how we will respond. With regard to the question of wiretap 

4775 information, Mr. Gowdy knows there is only so much I will be 

4776 able to say about wiretap information. So reading it should 

4777 not lead anybody to believe that I am going to be free, 

4778 unless I--you want to get me in real trouble with a Federal 

4779 judge about what's contained in a wiretapping. 

4780 Ms. ADAMS. Mr. Chair. 

4781 Chairman SMITH. I thank you, Mr. Attorney General. Mr. 

4782 Attorney General, thank you for your testimony today. 

4783 Without objection, all members will have 5 legislative days 
512 

f 


74504G2-29.eps

H.TU342.000 Pl'.GE 200 

4784 to submit additional written questions for the witness or 

11785 additional materials for the record. I ask unanimous consent 

4786 that the ger:tleman from Colorado, ~!r. Polis, be assigned to 

4787 the Subcommittee on Courts, Commercial and Administrative Law 

4788 and the Subcommittee on Crime, Terrorism and Homeland 

4789 Security. Is there a" objection'? If not, so ordered. The 

4790 hearing is adjourned. 

4791 [I"hereupon, at 4:05 p.m., the committee was adjourned.] 
513 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee on the Judiciary 


74504H-1.eps
514 

f 


74504H-2.eps

Why Republican', should stoT' tn;:,jr push. :Jgaii-,5t Holde{ : thuG;io h'J:p' i itnegriD.COuJ20 12106/07/ w fiy-rt.\publkans· S1l0Uld-stop·illeir-pu . 

2 Qf2 ]2::-:3 PM 
515 

*The Committee had not received a response to its questions at the time this hearing record 

was printed. 

Post-Hearing Questions submitted to the Honorable Eric H. Holder, Jr., 

Attorney General, U.S. Department of Justice* 


74504I-1.eps

il:ongms of the 'l~nitcd mtcs 

llOUS[ of'Rqlrl'HtnfJtlu[s r.OM~,"E~ON Tl1£ JUOOClAAY 

The Ho""rable Eric II. Holder, Jr. 

Anomey Gene .. l 

u,s. D'l'I'f\I1I<'nt of JuS1",~ 

Washin~lun. I),C. 2USJO 

Dear Allllmey Gen.m11Io~l.r. 

W _ _ .DC ~'I-G e 

, __ I 

. . 

JUOI\'"27.2012 

Th. Judiciary ConUtlltt ~ h~ld a hearin~ on ''Ov.r~ighl Dfthe o.,panmenl of J~ic~~ on 

Thurnhy. June 7. 2012 at 9:30 a.m. in room 2141 of\~e Rayburn Ho~Omc'C Buildins. Thank 

you r", your le .. imony. 

QuoIlioru; for the I'<!<.'Onl ~ave been submined 10 lbeCommit~ within five ICiilslalive 

days of 1M e.rin~ . The qucslioni addn:s8ed 10 you"", ou..:hcd. We willlljlprtciaLe a full and 

comple,e "",ponse as they will be jndudcd in 1M official bearinG record. 

Pl ..... !nibmil your wliacn II!\~"= II) Kd5ey Deterdina 81 

kelseY l.rdinK'~mail.h9u>c gny '" 21 38 Rayburn 1I()U:Ie Office BUIlding. W .. shinlltOn, DC, 

20515 by AUK""l g, 2011. lFyou ,",Vi: ""Y funh., q~lionl or concern., please conlaCllloll 

t..ckey. ChicrQversighl and Inv.Sli!:lllio,,, Couhl<:l. o! bol!_lillikey@ml!i!.h<>uggQv or 11\ 21)2· 

2H·j951. 

Thank you Qgain for )'Our JI!Inic'l"'!iOl1 in "'" t>earing. 

~~:,J;J#- 1.1Im:\r Sml!h 

Chainnan 
516 


74504I-2.eps

United States House of Representatives 

Committee 011 the Judiciary 

Questions for the Record 

Questions from Representative Lamar Smith 

I have learned through sevcral channels of reports that certain recipients of grants from the 

Department. of Health and Human Services ("HHS") and the Centers for Disease Control 

("CDC") have used those federal funds to advocate for new or reformed legislation in state and 

local legislatures, councils, and departments, 

I understand that on March 16,2012, a group named "Cause of Action" submitted to the 

Department of Justice a letter detailing instances of this conduct and requesting an investigation, 1 

A recent letter from Senator Collins to Secretary of Health and Human Services Kathleen 

Sebelius also describes similar activity, 2 

The conduct detailed in both the Cause of Action letter and the letter fi'om Senator Collins 

appears to contravene the Anti-Lobbying Act, codified at 18 U,S,C, § 19 I 3-which the Justice 

Department is responsible for enforcing-and which prohibits the use of appropriated funds, 

"directly or indirectly, , , to ini1uence in any manner" any state or local official to take any 

action for or against legislation, 

Moreover, as I noted in the Committee's report of April 30, 2012, detailing the Obama 

Administration's consistent disregard of the rule oflaw, "the Justice Department, , ,has 

repeatedly put its partisan agcnda ahead of its Constitutional duties [to enforce the law],"-' The 

conduct reported here appears to be one more example ofihc Administration's campaign to 

enforce its own policy goals regardless of federal prohibitions 10 !he contrary: IllIS and the 

CDC arc allm,ving federal funds to he used unlawfully to impose the administration's policy wish 

list on states and localities. 

Please provide written responses to the following questions: 

L Docs the Anti-Lobbying Act prohibit !he expenditure of federal grant funds to persuade state 

and local governments to adopt or modify laws and regulations? 

I See http://causeofaction,org/abouii, 

'See Letter from Sen, Susan Collins to Hon, Kathleen Sebelius, Secretary of the Dcp't of Health 

and Human Services (May 1, 2012), available at http://wv'lw,collins,scnate,gov/public/ 

index,efm/ press-releases?ID=5eb56ba5-4c87 -4e41-94 2d-8d 1657 SfOdO 5, 

3See U,S, House of Representatives, Committee on the Judiciary, The Obama Administration '0' 

Disregard (!f the Constitution and the Rule of Law (April 30, 2012), available at 

http://judiciary,house,gov/issues/issucs_Reports, htm!' 
517 


74504I-3.eps

2, Are you aware of the conduct ofHHS and CDC grantees described by Cause of Action and 

by Senator Collins in their respective letiers? If so, is the Justice Department investigating 

that conduct? 

3, How did you leam of the reported conduct by HIlS and CDC grantees? Have you ordered, 

or do you plan to order, an investigation of the reported HHS and CDC grantee conduct? 

4, In 2002, Congress amended the Anti-Lobbying Act to ban all expenditures of federal funds 

to lobby or urge state and local govemments to change their law, What has the Justice 

Department done to implement and enforce these amendments? Has the Justice Department 

given any guidance to federal agencies, and specifically HHS or CDC, regarding the 

prohibitions and scope of the 2002 amendments? 
518 


74504I-4.eps

Questions from Representative Elton GaUegh: 

Please provide: 

l. The number of arrests, prosecutions, and convictions for Medicare and Medicaid fraud cases, 

the amount of taxpayer money stolen in those cases and the amount recovered for the 

taxpayer. 

2. The number of arrests, prosecutions, and convictions for specific lvledieare and Medicaid 

fraud enforcement actions taking place in California, in southern California, and specifically 

in Los Angeles and Glendale. 

3. The. number of worksite enforcement prosecutions for each of the last four years, and the 

number of prosecutions of illegal workers who have used fraudulent documents. 
519 


74504I-5.eps

Questions from Representative J. Randv Forbes 

1. I know you have filed actions against Arizona, South Carolina, Utah and Alabama - all 

Republican Governors. Would you give us a list of any similar actions, of a similar profile, 

you have filed against any states with Democratic Governors? 

2. Please provide a list of any and all meetings Vvith the White House and members of the 

campaign about any of the messaging that took place regarding the cases mentioned above, 

as well as the decisions to not take action against states with Democratic Governors? 

4 
520 


74504I-6.eps

Questions froill Representative Steve King 

USPA l)i§.Climination Settlement~ 

1. How much money has been distri buted from the Pigford 1 and Pigford 1I settlements? 

a. How many plaintiffs have received a settlement? 

b. Which lawyers and law films received compensation irom the Pigford settlement 

funds? 

c. How many attomeys were involved in the settlement? 

d. How were the fees calculated and distributed? 

2. How many claimants who were denied relief in Pigford 1 took part in Pigford II? How many 

of those claimants were awarded a settlement? 

3. Were all of the named plaintiffs in the original Pigford suit successful? Did they all 

eventually receive a settlement from the United States government'? 

4. What is the status oUhe required GAO audits regarding the claims process? 

5. How many outstanding claims exist? 

a. How many have applied? 

b. How many have been paid? 

6. \Vhat is the geographic breakdown of Pigford claimants? 

7. Were you aware of the number of black farmers and black farms in America when you 

announced the Pigford II settlement on February 18, 2010'1 

8. Please provide, in a searchable format, the names of all claimants, the dates oftheil' 

applications, their addresses, and the dates and outcomes of their applications. 

9. "Vhat number of Pigford 1 and Pigfhrd Il claimants were denied a settlement? 

10. Please produce a report describing how the Department of Justice's Judgment Fund operates. 

\Vhat is the size ofthc Judgment Fund? How much is annually paid from the Judgment 

Fund? 

II. What is the CUlTent dollar amount of cash distributions to claimants in the Pigford II 

settlement? 
521 


74504I-7.eps

12, What is the total dollar amount of loan forgiveness of claimants in the Pigford lJ settlement? 

13, What entity processes the settlements for Pigford I and Pigford II? \Vhat entity receives thc 

claimant's application? Who reviews the application? What entity distributes cash 

settlements? What is the oversight process ofthis entity? 

14, Is the DOJ aware of any (new or old) allegations offraud regarding the disbursement of 

ftmds relating from the Pigford, Garcia, Love, ami Keepseag/e settlements? Please describe 

them, 

15, Has the DOJ undertaken any investigations into alleged fraud in these settiemenLs or does it 

plan to do so in the future? 

The Secretary of State of my home state, Iowa, along with other states has requested the use 

of the Department of Homeland Security's Systematic Alien Verification for Entitlements 

(SAVE) program as an aid in determining the eligibility orvolel's, According to DBS's Privacy 

Impact Assessment for SAVE, IIRlRA provides "for customer agencies to use SAVE for any 

legal purpose such as background investigations and voter registration," 

DI-IS has responded to the Iowa Secretary or Stale's office that "SAVE personnel have 

contacted the Office ofthe Iowa Secretary of State on April!7, 2012, to bettcr understand 

Iowa's intended use (e,g" verification of existing voters or registering voters) and determine ifit 

is able to comply with all SAVE procedures, including providing the numeric identifiers found 

on each voter's immigration-related documents and copies of those documents, ifrequested, 

Once we receive more information from Iowa, we will be in a position to respond to the 

request" Despite providing the information requested by DHS, the State of Iowa has yet to hear 

back from DHS, 

In a letter dated May 10, Colorado was denied use of the SAVE system by DHS saying that 

"While this additional information (alien registration numbers for registered voters) may 

facilitate the use of SAVE for this verification purpose, we must further assess serious legal and 

operational issues before we can make a determination on your request," 

Additionally, DHS has stated in its letter to Iowa that USCIS needs to ensure that verifying 

the citizenship status of CUlTcn( and future voters using the SAVE Program does not contlict with 

the Voting Rights Act As such, USCIS has sought guidance from the Department ofJustice 

Voting Rights Section on this issue and we are now waiting on the Department's response, 

I, Has the Department provided USCIS with an opinion as to whether verifying the citizenship 

status of current and future voters using the SAVE Program cont1icts \vith the Voting Rights 

Act? 

2, If not, when can it be expected? It is imperative that it is provided in a reasonable time (at 

least 120 days) before the election, 
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I. How doc~ the Department explain its reversal of its decades long interpretation of the Wire 

Act? Seeing as the Wire Act is not the only provision making internet gambling illegal, 

couldn't that reversal be seen as in direct defiance of those laws? 

GPS Tracking 

In early Junc, 2012, the DOJ told Ninth U.S. Circuit Court of Appeals that it still has the right 

to place Global Positioning System tracking devices on cm's without obtaining a search 

warrant--<lespite a January Supreme Court ruling that the warrmltless installation of such a 

device violated the Constitution. 

A Department spoke~per~on said "that a warrant is not needed for a GPS search, a~ the 

Court. .. did not resolve that question," but said that the department has "advised agents and 

prosecutors going forward to take the most prudent steps and obtain a warrant for new or 

ongoing investigations" in most cases. 

1. How many GPS tracking devices or other tracking devices did the DOJ/FBI have at the time 

ofthe Supreme Court's decision in United States 11. Jones? 

2. How many of those had to be subsequently turned off? 

3. How did the DOJ and the FBI recover those devices that were turned off? 

4. How has the Bureau and the DO] advised agents to deal with tracking devices going 

forward? 

5. Why did the Department of Justice not testify during the recent May 17th hearing ofH.R. 

2168 (the Gcolocational Privacy and Surveillance Act)? Further, with June 12'h rapidly 

approaching, has the Department of Justice prepared its answers to Senator Franken's 

questions regarding the use of GPS technology and the Department's possible evasion ofthe 

Jones decision? 
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Questions from Representative Louie Gunmer! 

I, Attorney General Holder, please clarify your testimony before this Committee on June 7, 

2012 about former Attorney General Michael Mukasey being briefed during his tenure about 

operations pcnnitting guns to walk into Mexico, 

At that hearing, you responded to me stating "[ a]nd that is in stark contrast to what happened 

to my predecessor Attorney General Mukasey ",:hen he was briefed about the transmission of 

guns to Mexico and, as far as I can tel!, did far less than what 1 did, 

Five days later in a Senate Judiciary Committee hearing, you gave a similar response to 

Senator Comyn regarding Attorney General Mukasey being briefed on a gunwalking 

operation called Wide Receiver. 

However, in a June 18, 2012 letter responding to Senate Judiciary Committee Ranking 

Member Charles Grassley, Acting Assistant Attorney General Judith Appelbaum retracted 

your statement to the Senate Judiciary Committee claiming that former Attorney General 

Mukasey was briefed on Wide Receiver. Please review the definition of "inadvertent" and 

explain how comments made in two diiTerent locations live days apart cOldd be inadvertent 

rather than false, Further, have you apologized to former Attorney General Mukasey? 

Additionally, did your "inadvertent" comments about former Attorney General Mukasey 

result from the "political dimensions" that you said were part of your role as Attorney 

General? 
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Questions from Representative Ted Poe 

1. Arc you familiar with the Pew study" showing that there are almost 2 minion ineligible voters 

on the rolls in this country including roughly 1.8 million dead people? 

2. Considering that many of our elections are determine by a few hundred or a few thousand 

votes, this is obviously very significant. If our current Voter identiHcation systems across the 

country are this flawed, how else can we ensure the validity of our elections without Voter 

ID? Clearly the current systems are not working. 

3, Can you tell us today that you are 100% confident that voting fraud has not - or could notsway the decision of a US election? 

4. Are you familiar with the Florida Secretary of State's discovery of 53,000 dead voters' on the 

rolls when he started using the Social Security Death Index for list matching? 

5. Section 8 of the National Voter Registration Act gives you power to bring cases against 

states to ensure dead ,mG ineligible voters are not on the rolls. How many Section 8 cases has 

your voting section brought since you became Attorney General? 

6. Why have you not brought more cases considering that independent analysis finds that as 

many as 1.8 million dead voters could be on our voting rolls? How can you explain this lack 

of action on the part of the Department of Justice? 

Fast and Furious 

1, In December of last year I asked you if there was any effort currently underway by the ATF 

or any other agency to locate and account for the weapons that were sold during operation 

fast and furious in the Houston area. What should I tell my constituents who are concerned 

about the prospect 0 [(hese weapons falling into criminal hands? 

2, Is the Department of Justice currently investigating any of those involved in Fast and Furious 

for crimes? Has anybody been fired? 

3. Do you still stand by your contention you have made in the past that no senior DOJ officials 

knew about Fast and Furious? 

4. Has any progress been made since the last time you came before the committee in locating 

any of the hundreds of missing weapons? 

5. Do you think it is proper to have people who were involved in Fast and Furious who have 

demonstraled such recklessness and poor judgment still working at the ATF? Some in 

managerial positions? 

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6, Are any of these individuals in positions where deeisions they make could put lives 

jeopardy? Has anybody been tired or punished in any way since you last came before the 

committee? 

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Questions from Representative Mark Amodei 

I, along with Chairman Smith and several of my other House colleagues, sent a letter to your 

attention 011 June 13,2012, regarding changes you have recently made to the SCAAP 

reimbursement policy for localities housing "unknown" criminal aliens in their jails. 

1. What possessed the Department lo, in !vlay 2012, unilaterally change the terms under which 

SCAAP reimbursement is provided to local law enforcement? Did you not think that you 

needed to confer with Congress, the body that authorizes and appropriates the funds for this 

program, before doing so? 

2. When can we expect you to rescind this reimbursement policy change? If you refuse to do 

so, what is your statutory/legal basis for refusal? 

3. Why do you believe it is appropriate to find cost-savings for the Department on the backs of 

local communities by refusing 10 reimburse them for criminal, illegal aliens you and the 

Department of Homeland Security have failed to track and to remove? How could you 

achieve savings in other areas ofille Department instead, alloVting SCAAP fW1ds to be 

disbursed as Congress intended and authorized? 

4. Do you recognize that local communities may have to release these criminals, who have 

repeatedly shown no respect for the rule of law, if they cannot find a way to pay for them to 

stay in their jails? Do you think this is appropriate? What solution would you propose 10 

avoid this outcome? 

Tribal Law Enforcement Questions: 

As you may know, this Committee jnst reauthorized the Violence Against Women Act. 

Domestic violence, rape, and sexual assault on tribal lands are epidemic. Members oftl'ibes in 

my dislTict have expressed frustration that federal investigators and prosecutors are not, in their 

opinion, doing enough to pursuc these and other violent crimes on tribal lands. PBI Director 

Mueller mentioned in his testimony before the Committee earlier this year that the FHI is 

aggressively investigating such crimes, particularly sexual assault and child sexual assault. 

1. Could you (el! me about the initiatives (both investigative and prosccutorial) you haw 

launched to combat various kinds of violent crime on tribal lands and the successes you have 

had to dale? Are there any specific steps you're taking to deal with the problem of domestic 

violence on tribal land involving non-Indian-on-lndian violence? What is the standard 

protocol and timcline for handling thosc kinds of cases? 

2. When you have declined to pursue or to prosecute criminal cases on tribal lands, is there a 

trend in your reason(s) for doing so? If so, what is that trend(s)? 

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74504I-13.eps

3. How many prosecutors have you assigned to handle tribal criminal prosecutions? How many 

law enforcement agents have you assigned to handle tribal criminal investigations? What 

additional resources do you need? 

4. How does ihe refenal process work between tribes and federal law enforcement? Can this 

process be strengthened, in your opinion? If so, how? 

5. What is being done to enforce the Indian Arts and Crafts Act of2010, to provide trademark 

protection to Indian artwork against counterfeiters? 

pepartment Conference Policy: 

In April 2008, the Department of Justice's Financial Management Division issued a policy 

requiring special approval for all requests to hold "a predominately internal event in a nonfederal facility" ai, among other places, locations "knoVolll for gambling," "considered a tourist 

attraction or common vacation location," or "any resort facility or resort location.,,6 Reno, 

Nevada and Lake Tahoe, Nevada were both specifically listed as examples of locations requiring 

special approval. 

It is my understanding that the Department has continued this policy in the current 

Administration. 

I have been infonned that because of this policy, some well-respected judicial training 

institutions, induding the National Judicial College and the National Council for Juvenile and 

Family Court Judges, both located in Reno, Nevada, have had diHieulty obtaining approval to 

host essential training events in their own backyard. This policy leads to needless extra cost to 

the taxpayer fmd to these institutions, as they must scramble to secure, to travel to, and to host an 

event at a remote location not on the Department's list. 

1. Could you confirm that this special approval policy for certain conference locations is still in 

effect in your Department'? If so, has it been reformed in any way? 

2. If this policy is still in effect, would you consider making an exception to the policy for those 

institutions that are headquartered in special-approval locations and that desire to hold 

essential meetings or conferences in Iheir home city? 

(, See lI<S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENEHAL: ,\ lCnlT fW",,,m, AUDIT OF DEPARTMENT 

m JUSTICE CO;:rERENCE PLANNING AND FOO[) AND BEVERAGE COSTS, Au])]'r R.EPORT at App. iIl, pg. 87 

(Sept. 2011, revised Oc!. 2011), http:j;www.iusticc.g9viQjg!~J'-Qt1siPlus/al143.pdr 

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Questions from Representative Robert Co "Bobby" Scott 

Faith Based Initiatiye Questions: 

First 1'd like to thank you for your responses to my questions for the record submitted after 

your last appearance before this Committee on Dec.ember 8, 2011. We just received those 

responses cadier this month. 

With regard to my questions about the Faith-Based Initiative, I want to thank the Department 

for finally admitting in no uncertain terms that notwithstanding federal statute explicitly 

prohibiting discrimination based on religion, this Administration does in fact permit 

discrimination based on religion with federal funds. So once again, now in the 21 5t century, an 

employer using government money can tell ajob applicant - the most qualified job applicantwe don't hire your kind, even for ajob paid for ",'ith taxpayer dollars. 

On that note, I do have some follow up questions and clarifications about the process by 

which this discrimination is pennitted. 

I. The response the Department provided to explain the self-certification process seems very 

different from tbe "casc-by-case" process as explained by Joshua DuBois, Special Assistant 

to the President and Executive Director of the White House Office of Faith-based and 

Neighborhood Partnerships. He said, "On the hiring issue, ... [w]e will work with the White 

House counsel and with the Department of Justice, the attorney general, to fully explore that 

individual case and make a recommendation to the president. At the end of the day, he will 

determine what he thinks the best path forward is.'" Mr. DuBois has explained that this 

process was put in place because "[t]he President has said that he wants to fully understand 

the legal and policy intricacies of this issue before making decisions. In the case of coreligious hiring. , . , he wants to fully examine the issues on a case-by-case basis before 

moving forward. ,,' 

a. Have you hcard of the process Mr. DuBois describes? 

b. Are you or other components of the Department involved in the specific review that Mr. 

DuBois describes? 

c. If the President wants to fully examine issues and fully understand the legal and policy 

intricacies, is the self-ccrtification process employed by the Departmenl robust cnongh? 

2. The response by the Department refers to an OJP policy that allows for case-by-case review. 

I believe that policy is laid out in a document dated October 2()07. That document states that 

"exemptions should be granted" if the religious organization applying for funds cerlitles the 

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74504I-15.eps

three statements set forth in the document, "unless the funding entity has good reason to 

question the certification." 

a. Is such an exemption granted only for the duration of the funding agreement ",,jih the 

Department? Or is the exemption standing, so that if a faith-based organization is 

granted an exemption once it could apply for other grants without submitting a new 

celtification? 

b. I read this process as a self-certifying process and the funding agency can only deny a 

request to discriminate if it "has good reason to question the celtification." Is that your 

understanding of the policy or is there an actual review? 

c If there is an actual review, who receives the certification and makes a detcrmilmtion? 

And on what basis is the certification reviewed and the determination made? Tn other 

words, what arc the standards applied to such a review, as separate and distinct from the 

standards or statements of certification? 

d. If there is no such review, then why does the Administration claim a case-by-case review 

process? Ifthere is no such review, then can't anyone claim the exemption with no 

review and no repercussions? 

e. Please clarify whether the eight faith-based organizations that submitted certificates to 

OJP in FY2008 were granted exemptions? Was there a review before the exemptions 

were granted? 

f. Have any requests for exemptions bcen received since FY2009? If so, please provide 

details about whether the exemptions were granted and any review or process completed 

by the Department pertaining to those requests for exemptions. 

3. Regarding the legal authority to discriminate and its requirements and limitations: 

a. What notice are job applicants required to be given that anti-discrimination laws do not 

apply for a particular job opening? 

b. If it is not illegal to discriminate, what if any recourse and remedy does a victim of 

discrimination have? 

c. Does an entity need "celtification" to discriminate? What authority does the Departmcnt 

have to require certification as a condition to discriminate? Why is certification 

necessary? Under current law, a faith based organizations using its own money may 

discriminate and may use its status as a faith based organization as a defense in court. 

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74504I-16.eps

Why is the process different when a faith based organization is discriminating using 

federal taxpayer dollars? 

1. Thank you for your responses we received on June 5, to questions for the record concerning 

thc December Washington Post article about potential bias in recommendations to the 

President about pardon applications. The story found that white applicants were four times 

as likely as applicants of color to receive presidential pardons. You assured us that you were 

undertaking a statistical study and making changes such as instituting an office diversity 

policy, Spanish Janguage materials and a frequently asked questions section for the website. 

"These changes," you wrote, "renect the Department's commitment to the integrity of the 

executive clemency process, and to the equal and fair evaluation of all applicants." The 

December Washington Post/ProPublica series recounted disturbing evidence that appears to 

point to racial disparity in the granting of pardons. How will the measures you outlined in 

your June 5 response address this problem? 

2. You mentioned in your responses that the Washington Post/ProPublica accowlts alleging 

racial bias in pardon grants did not control for, among other things, expressions of remorse 

and candor. The grant outcome suggests that whites may be four times as remorseful and 

candid as people 0 f color. Will your statistical study be controlling for and/or examining 

how expressions of remorse and candor correlated with racc? 

3. You mentioned that first among the things the OP A looks for in a clemency candidate is the 

severity ofthe sentence. Sentences are often excessive and unduly severe. Given this shared 

concern, I wonder whether yon were struck, as I was, by the fact that of the thousands of 

applications for commutation made between 2001 and 2009, only 6 received positive 

recommendations from the Pardon Attorney. Even given a totality ofthe circumstances 

approach, are you concerned about the paucity of positive recommendations during the latter 

period continuing up to now and, if so, how would you propose to increase the number of 

favorable recommendations? 

4. A story published by the Washington Post in collaboration with the investigative journalism 

organization, ProPublica on May 13, 2012 contained allegations that the Pardon Attorney 

misled the President ofthe United States about support for a clemency petitioner, Clarence 

Aaron. Speciilcally, the account stated that the Pardon Attorney so misrepresented the 

support for !vir. Aaron that Kenneth Lee, the attorney responsible for handling the case at the 

White House Counsel office, said that the Pardon Attorney had "prescnted the views of 

[U.S. Attorney Deborah] Rhodes and [the sentencing judge, Charles] Butler "in the least 

favorable light to the applicant." The article states, "[h]ad he read the statemcnts at thc time, 

Lee said, he would have urged Bush to commute Aaron's sentence." 

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74504I-17.eps

a, In light of your stated commitment to a fair evaluation and an office that operates with 

integrity, what steps are you taking, or plan to take, to investigate the allegations about 

the Office of the Pardon Attorney's handling of this case and its recommendation to the 

President? 

b, In light ofthe allegations that the President was misled by the Pardon Attorney as to the 

support for Clarence Aaron's commutation, what steps do you plan to take to investigate 

denials in what might be other deserving applications for commutation that have received 

negative recommendations from the Pardon Attorney? 

c, Given that the President ofthe United States is the institutional client of the Pardon 

Attorney and given that an attorney has a professional obligation to be forthcoming and 

truthful in dealings with a client, will you direct an inquiry into the Pardon Attorney's 

actions by the Oftlce of Professional Responsibility in addition to any other investigative 

actions? 

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QUestions £"0111 RC!}l'csrulalivc Jcrn,hl Nadler and Represenlatin Skv(, Coh,," 

In response to a question asked of you regarding the investigation and prosecution of persons 

by the Department of Justice (DOJ) for actions relating to medical marijuana, you said that DOJ 

limits its "enforcement efforts to those individuals [or] organizations that are acting out of 

conformity with State laws, or, in the case of instances in Colorado, where distribution centers 

were placed within close proximity to schools." 

1. For each enforcement action DOJ has taken against persons or entities engaged in 

cultivating or selling medical marijuana in any jurisdiction in which medical marijuana is 

legal during yoUI' service as Attorney General, please provide information about the case, 

including the specific federal, state andlor local laws, regulations, and/or policies that 

allegedly were being violated. Please explain why in each enforcement action DOJ acted 

in the place of or instead of the applicable state and/or local law enforcement entity. 

2. Besides the instances you mentioned in your answer in Colorado, have any DOJ personnel 

cited any federal law or section of the federal code, such as 21 U.S.c. 860 (known as the 

Drug-Free School Zones Act) as a reason in communications with any persons or entities 

engaged in cultivating or selling medical marijuana in any jUl'isdiction in which medical 

marijuana is legal during your service as Attorney General that the business should or must 

close or otherwise cease doing business? If the answer is yes, please detail each instance. 

How do SllCh actions comport with your statement that enforcement actions only have 

occull'ed when persons or entities werc acting out of conformity with state law'! Why does 

DOJ believe 21 U.S.C. 860 is relevant to the authority ofa medical marijuana business to 

operate when that provision only provides for enhanced penalties for violations of federal 

drug laws occurring too close to schools or other places children are likely to be? 

3. \Vith respect to actions you mentioned in your answer in Colorado, taking enforcement 

actions against medical marijuana entities allegedly too close in proximity to schools, why 

in each action did DO] decide to enforce federal law when Colorado and the relevant 

localities, which had legalized medical mar~juana, had chosen to allow these entities to 

operate legally? 

4. For each future eniarcement action by DO.! against persons or entities engaged in 

cultivating or selling medical marijuana in any jurisdiction in which medical marijuana is 

legal during your service as Attorney General, will you commit to making it clear to the 

public and Members of Congress both which specific federal, state andlor local laws, 

regulations and/or policies are allegedly being violated and why DOJ took action in the 

place of or instead of the applicable statc and/or local law enforcement entity? Why or 

why not? 

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.QuestiOI!§.!r!L~..&m:.~5.,n!!!jjXJl..Jerrold Nadler 

1, You issued a memo on September 23, 2009 setting forth policies and procedures governing 

the executive branch's invocation of the state secrets privilege (the "state secrets memo"), 

That policy requires your personal approval for the Depmtment to defend asscltion ofthe 

privilege in litigation, 

a, Tn how many cases (since September 2009) have you approved invocation of the 

privilege? 

b, Where you have approved the privilege, have you ever refen-ed allegations of 

\>;Tongdoing raised in the case to an Inspector General of any agency or department for 

investigation (as is contemplated by the policy)? 

(i) If so, how many cases? 

(ii) What have been thc results ofthose IG referrals and have you shared those with 

Congress? Will you share them with this Committee? 

(iii)Where you have not refen-ed it to an Inspector General, what evidence have you 

required to conclude that the allegations of wrongdoing arc not credible? 

c, In how many cases/instances have you disapproved of invocation of the privilege? 

2, The state secrets memo indicates that the Deparlment will provide "periodic reports" to 

"appropriate oversight committeeR" with respect to all cases in which the privilege is 

invoked, 

a, How many periodic reports have been filed and with which committees? 

b, Please provide copies olall such reports to the House judiciary Committee, To the 

extent you object to doing so, please provide the basis for that objecting, including ar1 

explanation of why these reports, which involve the invocation of an evidentiary 

privilege in Article III courts, do not fall within the Iudiciary Committee's oversight 

jurisdiction, 

3, You do not indicate in the state secrets memo whether this Administration will agree to 

judicial review of the basis for invoking the privilege, The prior Administration took the 

position that information could not even be disclosed in camera to an Alticle TIl judge, thus 

ensuring that there was no judicial review of whether the privilege had been properly 

invoked, 

a, What is your position as to judicial review ofthe information that the government seeks 

to withhold in two key respects: 

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74504I-20.eps